In one of the top business disputes before the U.S. Supreme Court next term, involving arbitration and the National Labor Relations Board, the federal government has weighed in decisively—on both sides.
And in a key employment discrimination case before the U.S. Court of Appeals for the Second Circuit, the Trump Justice Department filed a brief this week that made short shrift of a conflicting brief filed by the federal U.S. Equal Employment Opportunity Commission.
“The EEOC is not speaking for the United States, and its position about the scope of Title VII is entitled to no deference beyond its power to persuade,” Justice Department lawyers told the Second Circuit.
The bold interventions have surprised practitioners in both fields. But they are not unheard of, especially when a new administration takes over cases pending from its predecessor. More are likely coming, because of the administration’s explicit agenda of undoing Obama-era regulations. Still, these intragovernment conflicts draw attention and criticism from legal purists and from judges who would prefer to hear the government speak with one voice.
Supreme Court justices, who rely heavily on the Solicitor General’s Office as the steady and undisputed voice of the government, don’t like to get mixed messages from the same source. As far back as 1972, the late Chief Justice Warren Burger expressed ”the unanimous view of the justices that it would be unwise to dilute the authority of the solicitor general … in cases arising within the executive branch and independent agencies.”
Dueling government briefs strike others as odd too. “People who support a unitary executive are probably rolling in their graves, or in their beds if they are still alive,” Jenner & Block partner Adam Unikowsky said last month at a Washington Legal Foundation briefing. “And professional responsibility issues are raised when you are filing an amicus brief in a case where you’ve already filed a brief on behalf of the same client.”
SPLITTING OVER ARBITRATION
Unikowsky was referring to filings in NLRB v. Murphy Oil, one of three cases set for argument on Oct. 2, the first day of the fall term. The cases ask whether arbitration agreements with employees run afoul of labor laws when they prevent workers from joining class actions.
The NLRB filed its cert petition against such arbitration agreements last September, with Deputy Solicitor General Edwin Kneedler listed as counsel of record.
After the presidential election and after the Supreme Court granted review, Acting Solicitor General Jeffrey Wall filed another brief on June 16, this time in the posture of an amicus curiae brief in favor of Murphy Oil Corp. and other companies that support the arbitration agreements.
“After the change in administration, the Office [of the Solicitor General] reconsidered the issue and has reached the opposite conclusion,” Wall wrote.
At the time of the new filing, Wall also authorized the NLRB to represent itself in the case in a letter that has not been made public. The arrangement likely means that on Oct. 2, a lawyer for the SG’s Office will argue against an NLRB lawyer, along with someone representing the companies in the cases.
A government lawyer familiar with NLRB history who declined to be identified said the last time something similar happened in an NLRB case was in 1963 in McCulloch v. Sociedad Nacional, when then-Solicitor General Archibald Cox argued as a friend-of-the-court against lawyers representing maritime unions and the NLRB.
Nonetheless, the NLRB “always had a close relationship with the Solicitor General’s Office,” the lawyer said, and NLRB lawyers were often allowed to argue in cases where they were in agreement. The late NLRB lawyer Norton Come argued 56 cases before the Supreme Court.
The administration’s reversal in Murphy Oil came in “one of the NLRB’s most far reaching series of decisions over the past decade,” said former board member Charles Cohen, senior counsel at Morgan, Lewis & Bockius. “It could foreshadow changes of position on other doctrines currently being tested by employers in the courts.”
THE FICKLE SG
The recent action in the EEOC case before the Second Circuit also raised eyebrows. The issue in Zarda v. Altitude Express is whether sexual orientation discrimination is barred by Title VII of the Civil Rights Act. The EEOC’s June 23 amicus curiae brief said yes, but a month later the Justice Department said no, asserting that in its capacity as “the nation’s largest employer,” the United States had “a substantial and unique interest” in the case apart from the EEOC, which enforces Title VII against employers.
Asked about the Justice Department’s action, EEOC member Chai Feldblum—a former Supreme Court law clerk—said only, “Our brief in Zarda stands for itself.”
Though some commentators thought the abrupt conflict in positions was unheard of, a 1994 law review article reports that clashes between the EEOC and the Solicitor General’s Office have a long history. In a 1986 affirmative action case, Reagan administration Solicitor General Charles Fried filed a brief against the practice even though the commission had successfully defended it in courts below.
Because of shifting political and policy winds, the article concluded, “Although the solicitor general is often a dedicated advocate for independent agency interests, he is ultimately an unreliable advocate.”