SCOTUS Opening Day: United States v. United States?

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By Kimberly Strawbridge Robinson

When the U.S. Supreme Court kicks off its 2017 term on Oct. 2, the federal government may face off against … itself.

That’s because the Trump administration changed its stance in a closely watched labor case after the justices had already agreed to hear the government’s appeal.

As a result, the National Labor Relations Board could find itself opposing the U.S. Solicitor General’s office during oral argument.

Such shifts aren’t unheard of following a change in presidential administration.

Though they have at times been controversial, the Trump administration might have dodged some of that controversy here by allowing the NLRB to continue to press its argument at the Supreme Court.

It could lead to an odd situation—namely, the federal government ending up on both sides of this Supreme Court dispute—but that probably won’t trouble the justices, Daniel Epps, who hosts the Supreme Court podcast First Mondays, told Bloomberg BNA in an Aug. 16 email.

The real party interested in the outcome of the case is still the NLRB, Epps said. Under all but the most strict view of separation of powers, independent agencies like the NLRB are “allowed to make different choices than those that the President and his subordinates would make,” he said.

The decision to allow the NLRB to continue to present its side of the argument despite the administration’s change of heart didn’t seem to cause the administration too much consternation either. That’s likely due to the fact that the NLRB has a history of representing its interests before the high court, William & Mary law professor Neal E. Devins, Williamsburg, Va., told Bloomberg BNA in an Aug. 15 email.

‘Opposite Conclusion’

The issue in NLRB v. Murphy Oil revolves around the growing use of class action waivers in employment arbitration agreements.

The NLRB first determined that such waivers ran counter to the National Labor Relations Act in 2012. Federal courts have since divided over whether that interpretation is correct.

The NLRB asked the Supreme Court to resolve the split once and for all in September 2016. The petition seeking Supreme Court review was signed by attorneys from both the NLRB and Solicitor General’s Office—the federal government’s top lawyers at the Supreme Court.

But then the 2016 presidential election happened.

The Solicitor General’s Office acknowledged in a June 2017 Supreme Court filing that it initially supported the NLRB’s view. After the change in administration, however, the office “reconsidered” the issue and “reached the opposite conclusion,” the office told the justices in a brief supporting the other side.

The Solicitor General’s Office frequently seeks to participate in oral argument in cases in which it has filed an amicus brief. The justices rarely rebuff the office’s request.

As a result, the two federal agencies could square off in the court’s first argument of the term.

Litigation Authority

That curious turn of events is the result of the varying litigation authority granted to different federal agencies.

The Department of Justice—of which the Solicitor General’s Office is a part—is generally responsible for all litigation in which the government or its agencies are a party.

Such a centralized structure is desirable so that the federal government can “speak with one voice” on legal matters, the Supreme Court said in 1988.

But Congress can—and has—provided exceptions to DOJ control, Devins, who has written several law review articles on the topic, said.

Congress has, over the years, granted agencies varying degrees of litigation authority, he said.

Some “independent agencies have expansive litigating authority (including Supreme Court) and others have next to none,” Devins said.

Giving certain agencies litigation authority could be desirable to ensure that the agency is able to carry out its functions without undue influence from the president, the Supreme Court suggested in Fed. Elec. Comm’n v. NRA Political Victory Fund.

There, the court explained that Congress was concerned that “the Justice Department, headed by a Presidential appointee, might choose to ignore infractions committed by members of the President’s own political party” in implementing federal election laws.

The NLRB enjoys a great deal of independent litigation authority in lower courts. In the Supreme Court, however, the Board is subject to the general rule that the Solicitor General’s Office controls high court litigation.

That control can be waived, however, and that’s exactly what happened in Murphy Oil.

‘Improvidently Granted’

Such late-stage maneuvering, though, isn’t always received well by the justices.

Indeed, the Supreme Court recently bounced a bankruptcy case from its docket for similar reshuffling.

In PEM Entities LLC v. Levin, the parties filed a joint motion to “confirm party status” after the respondents who won below settled their claims and assigned them to an interested party.

That’s arguably a bad thing because “you have a respondent acting after a case is granted to mess up the facts of the case and turn it into a poor vehicle” for the Supreme Court resolve the issue, Washington University School of Law professor Danielle D’Onfro, St. Louis, Mo., said on First Mondays.

As such, the Supreme Court dismissed PEM Entities as improvidently granted on Aug. 10.

The Supreme Court doesn’t explain its reasoning when it nixes cases this way. D’Onfro speculated that it was because of this late-stage maneuvering.

In particular, by settling the claims between the original parties and swapping in an allied one, the justices may have been concerned that all sides of the issue wouldn’t be adequately represented in the case.

Real Party

But the maneuvering in Murphy Oil likely won’t create a similar concern with the justices, Daniel Epps, the host of First Mondays, told Bloomberg BNA in an Aug. 16 email.

The NLRB is still adverse to the companies challenging the Board’s interpretation of the National Labor Relations Act. The Solicitor General isn’t replacing those companies—like in PEM Entities—but rather joining their side.

Moreover, the NLRB is well suited to represent its own interests. Indeed, the board is now represented by its own Associate General Counsel John Ferguson, who heads the NLRB’s Division of Enforcement Litigation.

‘Virtually Unprecedented’

Still, Celine McNicholas, of Economic Policy Institute, Washington, said the Solicitor General’s move was “virtually unprecedented.” EPI is a think tank that researches issues affecting low- and middle-income workers, according to its website.

“The most recent example of the Solicitor General changing positions is a Reagan administration-era case, Bob Jones Univ. v. United States,” McNicholas said in a June 16 post on EPI’s blog. “In that case, the government changed its position to advocate in favor of an institution’s right to adopt racially discriminatory policies while enjoying tax exempt status,” McNicholas said.

The controversial switch led the Supreme Court to appoint renowned lawyer William T. Coleman Jr. to take up the federal government’s previous position. The Court ultimately sided with Coleman.

DOMA, Affirmative Action

Devins countered that such flips in administrative positions aren’t actually all that unusual.

For example, administrations sometimes refuse “to defend the constitutionality of laws that were defended by earlier administrations,” Devins said. Notably, the Obama administration ceased defending the constitutionality of the Defense of Marriage Act—which defined marriage as only between a man and woman for all federal purposes—despite the fact that the DOJ had previously defended it, Devins said in a 2012 law review article.

Even having the Solicitor General appear as an amicus on the other side of a Supreme Court argument following such a change in position isn’t all that unusual, Devins said.

In Metro Broad., Inc. v. FCC, then-Deputy Solicitor General John G. Roberts Jr. “authorized the FCC to argue in favor of affirmative action when DOJ argued against as amicus,” Devins said.

No Upside

It’s not clear why the Solicitor General allows an agency to press its contrary claims sometimes, but not others.

In Murphy Oil, tradition may have been a driving force, Devins said.

“The NLRB has a history of presenting its views to the Supreme Court” whereas other agencies don’t, Devins said. The Solicitor General’s willingness “to let the NLRB play the lead role may have something to do with those longstanding traditions,” he said.Moreover, the Court undoubtedly knows the backstory surrounding the litigation and the arguments that NLRB is advancing, Devins said. There’s little to be gained in being “heavy handed” and shutting the NLRB out “when the reality is that all the arguments are known and the administration can forcefully advance its position as amicus.”

It may have been the case that there was “no upside in blocking NLRB and potential downside in blocking,” Devins said.

It may be better to avoid unnecessary controversy and uphold the reputation of the Solicitor General’s Office, rather than be seen as “a brawler who squelches the views of those it disagrees with,” Devins said.

To contact the reporter on this story: Kimberly Strawbridge Robinson in Washington at

To contact the editor responsible for this story: Jessie Kokrda Kamens at

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