1 

IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF TEXAS

TYLER DIVISION

CHAMBER OF COMMERCE OF THE 

UNITED STATES OF AMERICA et al.,

Plaintiffs,

v.

NATIONAL LABOR RELATIONS BOARD 

et al.,

Defendants.

Civil Action No. 6:23-cv-553

PLAINTIFFS’ SURREPLY IN OPPOSITION TO 

DEFENDANTS’ MOTION TO TRANSFER 

The National Labor Relations Board’s reply is more notable for what it does not say than 

for what it does. The Board does not deny that no court has ever read section 10(f) of the National 

Labor Relations Act (NLRA) to require direct appellate review of Board rulemaking. The Board 

does not deny that the Board itself never took that view until 2020—85 years after its creation and 

the NLRA’s enactment. And the Board does not deny that the first party ever to seek direct 

appellate review of a Board rule is the union that filed the D.C. Circuit petition for review of the 

rule at issue here—the same union that supports the rule and whose 2021 suit against the Board’s 

previous joint employer rule is pending in district court. Of course, the Board’s silence is 

unsurprising: all of those irrefutable facts confirm the unprecedented nature of its jurisdictional 

position and the untenable nature of its statutory construction. 

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The few new (atextual) points the Board does raise are easily rebutted. First, the Board 

stresses that when Congress enacted the NLRA (in 1935) and last amended the Act’s rulemaking 

provision (in 1947), “pre-enforcement challenges to rules were rare and widely assumed to be 

unripe.” Reply at 11, 13. That argument supports Plaintiffs’ plain-text reading of section 10(f). 

If Congress did not contemplate rulemaking challenges like this one, then it had no reason to 

provide for direct review of them. And if it thought judicial review was available only after an 

enforcement proceeding, then its reference to “final orders of the Board” must refer only to orders 

resulting from an enforcement proceeding (i.e., an adjudication proceeding). The Board’s contrary 

logic—that Congress never contemplated rule challenges and yet simultaneously “intended” for 

such challenges to be heard in circuit court—“makes no practical sense.” Reply at 14. 

Second, the Board repeatedly quotes Bokat v. Tidewater Equipment Co., 363 F.2d 667 (5th 

Cir. 1966). See Reply at 7, 12, 15. But that case, which concerned an unfair labor practice 

proceeding, says nothing about district-court review of Board rules. The question presented was 

“whether the District Courts . . . are to be open to police the procedural purity of the NLRB’s 

[adjudicative] proceedings long before the administrative process is over, or for that matter, 

scarcely begun.” Bokat, 363 F.2d at 669. The answer is “no” because a court of appeals can 

consider procedural issues when reviewing a final “unfair labor practice order” under sections 

10(e) and 10(f). Although district courts may “have a very very minor role to play in this statutory 

structure,” id. at 673 (emphasis added)—which requires direct appellate review of orders in such 

unfair labor practice proceedings—that says nothing about review of Board rulemaking. 

Finally, the Board again invokes the D.C. Circuit’s opinion in AFL-CIO v. NLRB, 57 F.4th 

1023 (D.C. Cir. 2023). But the Board both misreads that opinion and runs away from its actual 

holding. Specifically, the Board contends that “the D.C. Circuit squarely found that a rule 

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‘concerning unfair labor practices’ would be covered by Section 10(f) under its precedent.” Reply 

at 15-16; see also id. at 9 n.9. But as Plaintiffs explained (Opp. at 20) (and the Board ignored), 

whether section 10(f) applied to rules “concerning unfair labor practices” did not matter because, 

“even accepting that ‘final order’ also extends to rules,” section 10(f) did not cover the 

representation rule at issue. AFL-CIO, 57 F.4th at 1033 (emphasis added). Thus, any musings 

about section 10(f)’s potential applicability to rules “concerning unfair labor practices” are (at 

most) dicta. See Ackerson v. Bean Dredging LLC, 589 F.3d 196, 205 (5th Cir. 2009) (statements 

that are “unnecessary” to a case’s holding “constitute non-binding dicta”). Beyond that, the Board 

distances itself from the D.C. Circuit’s ultimate holding: that section 10(f) does not allow direct 

review of rules concerning representation elections. See Reply at 15 n. 47 (“[T]he NLRB has not 

yet determined whether to acquiesce to or challenge the D.C. Circuit’s ruling[.]”). Indeed, the 

Board reserves the right to make the even more extreme argument that section 10(f) covers all 

rules, regardless of their connection to “some kind of unfair labor practice,” expressly rejected by 

the D.C. Circuit. AFL-CIO, 57 F.4th at 1032.

* * * 

Courts often face complicated statutory-construction questions—questions that require 

sentence diagrams, grammar books, canons of statutory interpretation. But sometimes courts face 

questions that can be decided simply by reading the statute to confirm an unbroken decades-old 

understanding. The latter is true here. 

The Court should deny the Board’s motion to transfer. 

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Dated: December 18, 2023 Respectfully submitted,

 /s/ Pratik A. Shah 

Stephanie A. Maloney 

 D.C. Bar No. 1044276 (pro hac vice)

Jordan L. Von Bokern 

 D.C. Bar No. 1032962 (pro hac vice)

U.S. Chamber Litigation Center

1615 H Street, N.W.

Washington, DC 20062-2000

Telephone: (202) 463-5337

smaloney@uschamber.com

jvonbokern@uschamber.com

Attorneys for the Chamber of Commerce of the 

United States of America

Maury Baskin

 D.C. Bar No. 248898 (pro hac vice)

Littler Mendelson

815 Connecticut Avenue, N.W.

Suite 400

Washington, D.C. 20006

Telephone: (202) 842-3400

Facsimile: (202) 842-0011

mbaskin@littler.com

Counsel to Associated Builders and Contractors 

and International Franchise Association

Angelo I. Amador

 D.C. Bar No. 480031 (pro hac vice)

Restaurant Law Center

2055 L Street, N.W.

Suite 700

Washington, D.C. 20036

Telephone: (202) 331-5913

Counsel for the Restaurant Law Center

Pratik A. Shah (Lead Attorney)

 D.C. Bar No. 497108 (pro hac vice)

James E. Tysse 

 D.C. Bar No. 9787522 (pro hac vice)

James C. Crowley

 D.C. Bar No. 208946 (pro hac vice)

Margaret O. Rusconi

 D.C. Bar No. 1719371 (pro hac vice)

Akin Gump Strauss Hauer & Feld LLP

2001 K Street, N.W.

Washington, D.C. 20006

Telephone: (202) 887-4000

Facsimile: (202) 887-4288

pshah@akingump.com

jtysse@akingump.com

jcrowley@akingump.com

mrusconi@akingump.com

Laura P. Warrick

 Texas Bar No. 24079546

Akin Gump Strauss Hauer & Feld LLP

2300 N. Field Street, Suite 1800

Dallas, TX 75201

Telephone: (214) 969-4770

Facsimile: (214) 969-4343

lwarrick@akingump.com

Counsel to Plaintiffs Chamber of Commerce of the 

United States of America, American Hotel and 

Lodging Association; Associated Builders and 

Contractors; Associated General Contractors of 

America; Coalition for a Democratic Workplace; 

International Franchise Association; Longview 

Chamber of Commerce; National Association of 

Convenience Stores; National Retail Federation; 

Restaurant Law Center; Texas Association of 

Business; and Texas Restaurant Association

Case 6:23-cv-00553-JCB Document 32 Filed 12/18/23 Page 4 of 5 PageID #: 578
CERTIFICATE OF SERVICE 

The undersigned certifies that on December 18, 2023, the foregoing document was 

electronically submitted with the clerk of the court for the United States District Court, Eastern 

District of Texas, using the electronic case file system of the court. I hereby certify that I have 

served all counsel of record electronically or by another manner authorized by Federal Rule of 

Civil Procedure 5(b)(2). 

/s/ Pratik A. Shah 

Pratik A. Shah

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