CALIFORNIA CHAMBER OF COMMERCE V. CERT

FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS OCT 26 2022
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
CALIFORNIA CHAMBER OF No. 21-15745
COMMERCE,
D.C. No.
Plaintiff-Appellee, 2:19-cv-02019-KJM-JDP
Eastern District of California,
v. Sacramento
COUNCIL FOR EDUCATION AND ORDER
RESEARCH ON TOXICS, a California
public benefit corporation,
Intervenor-Defendant-
Appellant.
Before: GOULD, BENNETT, and R. NELSON, Circuit Judges.
Order;
Statement Respecting Denial by Judge Berzon
SUMMARY *
Civil Rights
The panel denied on behalf of the court a petition for rehearing en banc in an
action brought pursuant to 42 U.S.C. § 1983 in which the panel had affirmed the
district court’s order granting California Chamber of Commerce’s motion for a
preliminary injunction that prohibited the Attorney General and his officers,
employees, or agents, and all those in privity or acting in concert with those entities
or individuals, including private enforcers, from filing or prosecuting new lawsuits
to enforce the Proposition 65 warning requirement for cancer as applied to
acrylamide in food and beverage products.
Respecting the denial of rehearing en banc, Judge Berzon, joined by judges
Wardlaw, Watford, Koh and Sanchez, stated that in this opinion, without basis in
law or precedent, the Court narrowed the fundamental right to access the courts. The
panel opinion closes the courtroom doors to all those seeking to enforce provisions
of California’s Proposition 65 with respect to a chemical present in a wide range of
food products—on pain of contempt. In doing so, the panel opinion expands the so-
called “illegal objective” exception, originating from a footnote in a labor lawsuit,
Bill Johnson’s Restaurants, Inc. v. N.L.R.B., 461 U.S. 731, 737 n.5 (1983), far
beyond any prior decision of the Supreme Court or the appellate courts: it allows a
single judge to enjoin potential plaintiffs from filing any sort of lawsuit if the judge
predicts that the lawsuits will fail upon a defense grounded in a federal right. The
labor-specific “illegal objective” exception does not countenance such an injunction
for non-labor lawsuits.
*
This summary constitutes no part of the opinion of the court. It has been
prepared by court staff for the convenience of the reader.
Judges Gould, Bennett, and Nelson have voted to deny Appellant’s petition
for rehearing en banc.
The full court has been advised of the petition for rehearing en banc. An
active judge requested a vote on whether to rehear the matter en banc. The matter
failed to receive a majority of votes of the non-recused active judges in favor of en
banc consideration. See Fed. R. App. P. 35.
The petition for rehearing en banc is DENIED.
FILED
OCT 26 2022
California Chamber of Commerce v. Council for Education and Research on
Toxics, No. 21-15745 MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
BERZON, Circuit Judge, with whom WARDLAW, WATFORD, KOH, and
SANCHEZ, Circuit Judges, join, respecting the denial of rehearing en banc:
The right to access the courts is one of “the most precious of the liberties
safeguarded by the Bill of Rights.” United Mine Workers of Am., Dist. 12 v. Illinois
State Bar Ass’n, 389 U.S. 217, 222 (1967). But in this opinion, without basis in law
or precedent, this Court narrows that fundamental right. The panel opinion closes
the courtroom doors to all those seeking to enforce provisions of California’s
Proposition 65 with respect to a chemical present in a wide range of food
products—on pain of contempt. In doing so, the panel opinion expands the so-
called “illegal objective” exception far beyond any prior decision of the Supreme
Court or the appellate courts: it allows a single judge to enjoin potential plaintiffs
from filing any sort of lawsuit if the judge predicts that the lawsuits will fail upon a
defense grounded in a federal right. I object to the panel’s unjustified curtailment
of the First Amendment’s protections and of litigation norms and respectfully
disagree with this Court’s refusal to reconsider the panel opinion en banc.
I.
Enacted by the voters of California in 1986, Proposition 65 is a “landmark”
statute aimed at protecting the public from exposure to toxic chemicals. People ex
rel. Lungren v. Superior Ct., 14 Cal. 4th 294, 315 (1996) (Baxter, J., dissenting).
1
The statute provides that “[n]o person in the course of doing business shall
knowingly and intentionally expose any individual to a chemical known to the
state to cause cancer or reproductive toxicity without first giving clear and
reasonable warning.” Cal. Health & Safety Code § 25249.6. Certain government
officials (such as the California Attorney General) and private litigants are both
statutorily authorized to bring actions to enforce Proposition 65’s guarantees. Cal.
Health & Safety Code § 25249.7(c), (d).
In this case, the California Chamber of Commerce (“CalChamber”) filed a
complaint and motion for preliminary injunction asking the district court to bar
“the Attorney General and all those in privity with him from filing and/or
prosecuting new lawsuits to enforce the Proposition 65 warning requirement for
cancer as applied to acrylamide in food products.” The Council for Education and
Research on Toxics (“CERT”), a non-profit with expertise in acrylamide warnings,
intervened in the lawsuit as a defendant. Rejecting CERT’s argument that an
injunction would constitute an unlawful prior restraint in violation of its First
Amendment rights, the district court granted a preliminary injunction, providing
that the injunction applied to the Attorney General, his agents, and all “private
enforcers” of Proposition 65. After a motions panel of this Court granted a stay of
the injunction pending appeal, the merits panel affirmed the injunction as to CERT,
holding that CERT had standing and that the district court did not err in granting
2
the preliminary injunction—in part because the “illegal objective” doctrine barred
CERT’s prior restraint claim. See Cal. Chamber of Com. v. Council for Educ. &
Rsch. on Toxics, 29 F.4th 468, 475–83 (9th Cir. 2022).
II.
The merits panel’s opinion contradicts decades of settled First Amendment
precedent regarding the “illegal objective” exception. The opinion transforms a
narrowly tailored labor law doctrine into a broad tool permitting the preclusion of
the filing of good-faith, reasonably based lawsuits when a judge predetermines the
merits of those lawsuits—or, in the case of a preliminary injunction, predicts the
likely merits. Nothing in Supreme Court precedent sanctions such a severe
restriction on the First Amendment’s protection of the right to petition for redress.
This Court should have reheard this case en banc.1
A.
1The panel opinion declined to review an interlinked aspect of the district
court injunction: its breadth as to the parties covered. See Cal. Chamber of Com.,
29 F.4th at 482–83. In a lawsuit with a single defendant (i.e., the California
Attorney General) and one intervenor (i.e., CERT), the district court issued an
injunction that applied to “all . . . private enforcers” of Proposition 65. Under
recent binding Supreme Court precedent, a federal court may not issue “an
injunction against any and all unnamed private persons who might seek to bring
their own . . . suits,” even if the attorney general also has the authority to enforce
the law in question. Whole Woman’s Health v. Jackson, 142 S. Ct. 522, 535
(2021).
3
The “illegal objective” doctrine originates from a footnote in the Supreme
Court’s decision in Bill Johnson’s Restaurants, Inc. v. N.L.R.B., 461 U.S. 731, 737
n.5 (1983). A case about the National Labor Relations Board’s (“NLRB”) authority
to block retaliatory employer lawsuits, Bill Johnson’s held that the NLRB could
enjoin “an improperly motivated suit lacking a reasonable basis” under the
National Labor Relations Act (“NLRA”). Id. at 744. In footnote five, the Supreme
Court briefly noted an additional category of suit that the NLRB had the authority
to enjoin as well: “a suit that has an objective that is illegal under federal law.” 2 Id.at 737 n.5.
Crucially, in its fleeting allusion to the “illegal objective” exception, the
Supreme Court spoke solely about the NLRB’s authority to forbid litigation, not
that of any other body. Id. Such an exception had been applied, the Court wrote, in
two instances: (1) the Court had previously “upheld Board orders enjoining unions
from prosecuting court suits for enforcement of fines that could not lawfully be
imposed under the [NLRA]” and (2) the Court had once “concluded that, at the
Board’s request, a District Court may enjoin enforcement of a state-court
injunction ‘where [the Board’s] federal power pre-empts the field.’” Id. (alteration
2
The panel opinion exclusively relies on the “illegal objective” exception as
the basis for affirming the district court’s injunction, explicitly distinguishing the
“illegal objective” exception from Bill Johnson’s “improperly
motivated/reasonable basis” test. See Cal. Chamber of Com., 29 F.4th at 481 n.16.
4
in original) (quoting N.L.R.B. v. Nash-Finch Co., 404 U.S. 138, 144 (1971)). In
other words, the “illegal objective” exception was a doctrine to preserve the
NLRB’s authority to decide issues of labor law—a power delegated to the Board
by Congress, see San Diego Bldg. Trades Council v. Garmon, 359 U.S. 236, 244–
45 (1959)—and to block litigants from undercutting that authority once the NLRB
had issued its decisions.
B.
The panel opinion erred in its unprecedented extension of the “illegal
objective” exception beyond the NLRB context. To my knowledge, every circuit
court decision invoking the “illegal objective” doctrine over the past 40 years—
besides the panel opinion—has faithfully applied the Supreme Court’s reasoning in
Bill Johnson’s and used the doctrine only in labor law cases concerning the
NLRB’s authority; in almost all of those cases, the NLRB was a party.3 See, e.g.,
United Nurses Ass’ns of Cal. v. N.L.R.B., 871 F.3d 767 (9th Cir. 2017); Murphy
Oil USA, Inc. v. N.L.R.B., 808 F.3d 1013 (5th Cir. 2015), aff’d sub nom. Epic Sys.
3
I was able to find only a single federal case applying the “illegal objective”
doctrine in a non-labor-law dispute: a district court decision in United States v.
Wagner, 940 F. Supp. 972 (N.D. Tex. 1996). Wagner contained no reasoning to
justify its use of the “illegal objective” exception outside the labor law context, and
it invoked both parts of Bill Johnson’s “improperly motivated/reasonable basis”
test in addition to the separate, “illegal objective” test as the foundation for its
decision, see id. at 980–82 (unlike the merits panel’s opinion which relied solely
on the “illegal objective” test, see Cal. Chamber of Com., 29 F.4th at 480–82).
5
Corp. v. Lewis, 138 S. Ct. 1612 (2018); Sheet Metal Workers Int’l Ass’n Loc.
Union No. 27 v. E.P. Donnelly, Inc., 737 F.3d 879 (3d Cir. 2013); Small v.
Operative Plasterers’ & Cement Masons’ Int’l Ass’n Loc. 200, 611 F.3d 483 (9th
Cir. 2010); Wright Elec., Inc. v. N.L.R.B., 200 F.3d 1162 (8th Cir. 2000); Loc. 30,
United Slate, Tile & Composition Roofers, Damp & Waterproof Workers Ass’n v.
N.L.R.B., 1 F.3d 1419 (3d Cir. 1993); Chauffeurs, Teamsters & Helpers Loc. 776
Affiliated With Int’l Bhd. of Teamsters v. N.L.R.B., 973 F.2d 230 (3d Cir. 1992);
Nelson v. Int’l Bhd. of Elec. Workers, Loc. Union No. 46, 899 F.2d 1557 (9th Cir.
1990), overruled on other grounds by Miller v. Cal. Pac. Med. Ctr., 19 F.3d 449(9th Cir. 1994) (en banc); Int’l Longshoremen’s & Warehousemen’s Union v.
N.L.R.B., 884 F.2d 1407 (D.C. Cir. 1989). In fact, when the Tenth Circuit was
presented with the opportunity to extend the reach of the “illegal objective”
doctrine beyond its defined limits in labor law—the only such instance that I have
found of an appellate court confronting the question—the court refused,
specifically grounding its analysis in the Petition Clause. See CSMN Invs., LLC v.
Cordillera Metro. Dist., 956 F.3d 1276, 1283, 1289–90 (10th Cir. 2020). As the
Tenth Circuit explained:
[G]ood reasons counsel against extending this per se rule beyond the
labor-relations context. . . . By adopting an unlawful-objective
exception to Petition Clause immunity, we would eliminate immunity
even in cases in which the party petitioning for redress does so for
benign reasons. We reject that result. Petition Clause immunity exists
to promote access to the courts, allowing people to air their grievances
6
to a neutral tribunal. In fact, “the ability to lawfully prosecute even
unsuccessful suits adds legitimacy to the court system as a designated
alternative to force” and ensures that litigants can argue for “evolution
of the law.”
Id. at 1290 (quoting BE & K Const. Co. v. N.L.R.B., 536 U.S. 516, 532 (2002)).
The panel opinion cites no cases to defend its novel application of the
“illegal objective” exception and offers no reply to the Tenth Circuit’s persuasive
reasoning. See Cal. Chamber of Com., 29 F.4th at 480–82. Instead, the panel
submits two cases—one about an injunction against relitigation, Wood v. Santa
Barbara Chamber of Commerce, Inc., 705 F.2d 1515, 1523 (9th Cir. 1983), and
another about intervention, Orange County v. Air California, 799 F.2d 535, 537
(9th Cir. 1986)4—and a fleeting reference to the All Writs Act and the Anti-
Injunction Act for the proposition that federal courts may preliminarily enjoin
lawsuits in certain instances. See Cal. Chamber of Com., 29 F.4th at 481 & n.17. I
do not dispute that federal courts possess the authority to enjoin future litigation in
limited circumstances, usually linked to avoiding repetitive or frivolous litigation.
However, neither case and neither law cited by the panel justifies a federal court’s
decision to enjoin a non-labor lawsuit using the NLRB-protective “illegal
objective” doctrine, especially when no appellate court has done so before.
4
Orange County mentions an injunction in its fact section and nowhere else
in the opinion. 799 F.2d at 536–37.
7
C.
The merits panel’s opinion compounds its error by expanding the “illegal
objective” exception even further. In addition to applying the “illegal objective”
doctrine in a non-labor-law case for the first time at the appellate level—
weakening the First Amendment protection accorded to the instigation of good-
faith, non-frivolous litigation—the panel invokes the doctrine without a final
merits determination regarding whether the lawsuit sought an illegal objective. See
Cal. Chamber of Com., 29 F.4th at 482. Put another way, the panel opinion allows
a court to enjoin an entire class of non-labor lawsuits using a labor law doctrine
solely because the court predicts that the suits are likely to fail on a federal law
defense.
No precedent supports the panel’s new and expansive exception to the
Petition Clause, and none should. There are established methods in the American
legal system to discourage and dispense with lawsuits with viable federal defenses.
A party may file a motion to dismiss or motion for summary judgment. See Fed. R.
Civ. P. 12(b)(6), 56. If the offending lawsuit is based on a statutory provision, a
litigant may file an anticipatory, declaratory judgment suit seeking to declare the
statutory provision unconstitutional. See 28 U.S.C. § 2201; Fed. R. Civ. P. 5.1. But
a preliminary injunction prohibiting plaintiffs from filing good-faith, non-frivolous
lawsuits is not an appropriate remedy. Good-faith litigants should not be threatened
8
with contempt of court, and potentially fines or even incarceration to compel
compliance, see 18 U.S.C. § 401, because there may be a valid federal defense to a
lawsuit they may wish to bring. The First Amendment protects “genuine” but
ultimately “unsuccessful” lawsuits, see BE & K Const. Co., 536 U.S. at 532, and it
ordinarily protects non-NLRB-related lawsuits from being enjoined when the
success of the lawsuits—which definitionally have yet to be filed—has not been
finally determined.
* * *
The consequences of the panel opinion should not be understated. As the
Supreme Court has long held, the right to petition the government is implied by
“[t]he very idea of a [republican] government.” United States v. Cruikshank, 92
U.S. 542, 552 (1875); see Bill Johnson’s, 461 U.S. at 741. With its unprecedented
expansion of the “illegal objective” exception, the panel significantly undermines
the Petition Clause’s protections, permitting courts to enjoin litigation on pain of
contempt because one court forecasts that the litigation will fail against a federal
defense. The labor-specific “illegal objective” exception does not countenance
such an injunction for non-labor lawsuits. Accordingly, I respectfully regret this
Court’s decision to deny rehearing en banc and its resulting effects on litigants’
right to their day in court.
9