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` Plaintiff-Appellee,
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`CALIFORNIA CHAMBER OF
`COMMERCE,
`
`
`
` v.
`
`
`COUNCIL FOR EDUCATION AND
`RESEARCH ON TOXICS, a California
`public benefit corporation,
`
`
`
`
`FOR PUBLICATION
`
`UNITED STATES COURT OF APPEALS
`
`FOR THE NINTH CIRCUIT
`
`
`FILED
`
`
`OCT 26 2022
`
`MOLLY C. DWYER, CLERK
`U.S. COURT OF APPEALS
`
`
`
`
`No. 21-15745
`
`
`D.C. No.
`2:19-cv-02019-KJM-JDP
`Eastern District of California,
`Sacramento
`
`
`ORDER
`
`Intervenor-Defendant-
`
` Appellant.
`
`
`Before: GOULD, BENNETT, and R. NELSON, Circuit Judges.
`
`
`Order;
`Statement Respecting Denial by Judge Berzon
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`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`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.
`
`
`
`
`
`
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`Judges Gould, Bennett, and Nelson have voted to deny Appellant’s petition
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`for rehearing en banc.
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`
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`The full court has been advised of the petition for rehearing en banc. An
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`active judge requested a vote on whether to rehear the matter en banc. The matter
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`failed to receive a majority of votes of the non-recused active judges in favor of en
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`banc consideration. See Fed. R. App. P. 35.
`
`
`
`
`
`
`
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`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
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`State Bar Ass’n, 389 U.S. 217, 222 (1967). But in this opinion, without basis in law
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`or precedent, this Court narrows that fundamental right. The panel opinion closes
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`the courtroom doors to all those seeking to enforce provisions of California’s
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`Proposition 65 with respect to a chemical present in a wide range of food
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`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
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`Court or the appellate courts: it allows a single judge to enjoin potential plaintiffs
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`from filing any sort of lawsuit if the judge predicts that the lawsuits will fail upon a
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`defense grounded in a federal right. I object to the panel’s unjustified curtailment
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`of the First Amendment’s protections and of litigation norms and respectfully
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`disagree with this Court’s refusal to reconsider the panel opinion en banc.
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`I.
`
`
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`Enacted by the voters of California in 1986, Proposition 65 is a “landmark”
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`statute aimed at protecting the public from exposure to toxic chemicals. People ex
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`rel. Lungren v. Superior Ct., 14 Cal. 4th 294, 315 (1996) (Baxter, J., dissenting).
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` 1
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`
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`The statute provides that “[n]o person in the course of doing business shall
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`knowingly and intentionally expose any individual to a chemical known to the
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`state to cause cancer or reproductive toxicity without first giving clear and
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`reasonable warning.” Cal. Health & Safety Code § 25249.6. Certain government
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`officials (such as the California Attorney General) and private litigants are both
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`statutorily authorized to bring actions to enforce Proposition 65’s guarantees. Cal.
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`Health & Safety Code § 25249.7(c), (d).
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`
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`In this case, the California Chamber of Commerce (“CalChamber”) filed a
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`complaint and motion for preliminary injunction asking the district court to bar
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`“the Attorney General and all those in privity with him from filing and/or
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`prosecuting new lawsuits to enforce the Proposition 65 warning requirement for
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`cancer as applied to acrylamide in food products.” The Council for Education and
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`Research on Toxics (“CERT”), a non-profit with expertise in acrylamide warnings,
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`intervened in the lawsuit as a defendant. Rejecting CERT’s argument that an
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`injunction would constitute an unlawful prior restraint in violation of its First
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`Amendment rights, the district court granted a preliminary injunction, providing
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`that the injunction applied to the Attorney General, his agents, and all “private
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`enforcers” of Proposition 65. After a motions panel of this Court granted a stay of
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`the injunction pending appeal, the merits panel affirmed the injunction as to CERT,
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`holding that CERT had standing and that the district court did not err in granting
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` 2
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`
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`the preliminary injunction—in part because the “illegal objective” doctrine barred
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`CERT’s prior restraint claim. See Cal. Chamber of Com. v. Council for Educ. &
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`Rsch. on Toxics, 29 F.4th 468, 475–83 (9th Cir. 2022).
`
`II.
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`
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`The merits panel’s opinion contradicts decades of settled First Amendment
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`precedent regarding the “illegal objective” exception. The opinion transforms a
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`narrowly tailored labor law doctrine into a broad tool permitting the preclusion of
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`the filing of good-faith, reasonably based lawsuits when a judge predetermines the
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`merits of those lawsuits—or, in the case of a preliminary injunction, predicts the
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`likely merits. Nothing in Supreme Court precedent sanctions such a severe
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`restriction on the First Amendment’s protection of the right to petition for redress.
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`This Court should have reheard this case en banc.1
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`A.
`
`
`1 The 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
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`
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`
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`The “illegal objective” doctrine originates from a footnote in the Supreme
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`Court’s decision in Bill Johnson’s Restaurants, Inc. v. N.L.R.B., 461 U.S. 731, 737
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`n.5 (1983). A case about the National Labor Relations Board’s (“NLRB”) authority
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`to block retaliatory employer lawsuits, Bill Johnson’s held that the NLRB could
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`enjoin “an improperly motivated suit lacking a reasonable basis” under the
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`National Labor Relations Act (“NLRA”). Id. at 744. In footnote five, the Supreme
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`Court briefly noted an additional category of suit that the NLRB had the authority
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`to enjoin as well: “a suit that has an objective that is illegal under federal law.”2 Id.
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`at 737 n.5.
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`Crucially, in its fleeting allusion to the “illegal objective” exception, the
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`Supreme Court spoke solely about the NLRB’s authority to forbid litigation, not
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`that of any other body. Id. Such an exception had been applied, the Court wrote, in
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`two instances: (1) the Court had previously “upheld Board orders enjoining unions
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`from prosecuting court suits for enforcement of fines that could not lawfully be
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`imposed under the [NLRA]” and (2) the Court had once “concluded that, at the
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`Board’s request, a District Court may enjoin enforcement of a state-court
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`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
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`NLRB’s authority to decide issues of labor law—a power delegated to the Board
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`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.
`
`
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`The panel opinion erred in its unprecedented extension of the “illegal
`
`objective” exception beyond the NLRB context. To my knowledge, every circuit
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`court decision invoking the “illegal objective” doctrine over the past 40 years—
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`besides the panel opinion—has faithfully applied the Supreme Court’s reasoning in
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`Bill Johnson’s and used the doctrine only in labor law cases concerning the
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`NLRB’s authority; in almost all of those cases, the NLRB was a party.3 See, e.g.,
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`United Nurses Ass’ns of Cal. v. N.L.R.B., 871 F.3d 767 (9th Cir. 2017); Murphy
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`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.
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`Union No. 27 v. E.P. Donnelly, Inc., 737 F.3d 879 (3d Cir. 2013); Small v.
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`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,
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`United Slate, Tile & Composition Roofers, Damp & Waterproof Workers Ass’n v.
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`N.L.R.B., 1 F.3d 1419 (3d Cir. 1993); Chauffeurs, Teamsters & Helpers Loc. 776
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`Affiliated With Int’l Bhd. of Teamsters v. N.L.R.B., 973 F.2d 230 (3d Cir. 1992);
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`Nelson v. Int’l Bhd. of Elec. Workers, Loc. Union No. 46, 899 F.2d 1557 (9th Cir.
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`1990), overruled on other grounds by Miller v. Cal. Pac. Med. Ctr., 19 F.3d 449
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`(9th Cir. 1994) (en banc); Int’l Longshoremen’s & Warehousemen’s Union v.
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`N.L.R.B., 884 F.2d 1407 (D.C. Cir. 1989). In fact, when the Tenth Circuit was
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`presented with the opportunity to extend the reach of the “illegal objective”
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`doctrine beyond its defined limits in labor law—the only such instance that I have
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`found of an appellate court confronting the question—the court refused,
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`specifically grounding its analysis in the Petition Clause. See CSMN Invs., LLC v.
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`Cordillera Metro. Dist., 956 F.3d 1276, 1283, 1289–90 (10th Cir. 2020). As the
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`Tenth Circuit explained:
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`[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
`
`
`
`
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`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.”
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`Id. at 1290 (quoting BE & K Const. Co. v. N.L.R.B., 536 U.S. 516, 532 (2002)).
`
`
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`The panel opinion cites no cases to defend its novel application of the
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`“illegal objective” exception and offers no reply to the Tenth Circuit’s persuasive
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`reasoning. See Cal. Chamber of Com., 29 F.4th at 480–82. Instead, the panel
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`submits two cases—one about an injunction against relitigation, Wood v. Santa
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`Barbara Chamber of Commerce, Inc., 705 F.2d 1515, 1523 (9th Cir. 1983), and
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`another about intervention, Orange County v. Air California, 799 F.2d 535, 537
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`(9th Cir. 1986)4—and a fleeting reference to the All Writs Act and the Anti-
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`Injunction Act for the proposition that federal courts may preliminarily enjoin
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`lawsuits in certain instances. See Cal. Chamber of Com., 29 F.4th at 481 & n.17. I
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`do not dispute that federal courts possess the authority to enjoin future litigation in
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`limited circumstances, usually linked to avoiding repetitive or frivolous litigation.
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`However, neither case and neither law cited by the panel justifies a federal court’s
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`decision to enjoin a non-labor lawsuit using the NLRB-protective “illegal
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`objective” doctrine, especially when no appellate court has done so before.
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`4 Orange County mentions an injunction in its fact section and nowhere else
`in the opinion. 799 F.2d at 536–37.
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` 7
`
`
`
`
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`C.
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`
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`The merits panel’s opinion compounds its error by expanding the “illegal
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`objective” exception even further. In addition to applying the “illegal objective”
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`doctrine in a non-labor-law case for the first time at the appellate level—
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`weakening the First Amendment protection accorded to the instigation of good-
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`faith, non-frivolous litigation—the panel invokes the doctrine without a final
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`merits determination regarding whether the lawsuit sought an illegal objective. See
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`Cal. Chamber of Com., 29 F.4th at 482. Put another way, the panel opinion allows
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`a court to enjoin an entire class of non-labor lawsuits using a labor law doctrine
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`solely because the court predicts that the suits are likely to fail on a federal law
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`defense.
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`
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`No precedent supports the panel’s new and expansive exception to the
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`Petition Clause, and none should. There are established methods in the American
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`legal system to discourage and dispense with lawsuits with viable federal defenses.
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`A party may file a motion to dismiss or motion for summary judgment. See Fed. R.
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`Civ. P. 12(b)(6), 56. If the offending lawsuit is based on a statutory provision, a
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`litigant may file an anticipatory, declaratory judgment suit seeking to declare the
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`statutory provision unconstitutional. See 28 U.S.C. § 2201; Fed. R. Civ. P. 5.1. But
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`a preliminary injunction prohibiting plaintiffs from filing good-faith, non-frivolous
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`lawsuits is not an appropriate remedy. Good-faith litigants should not be threatened
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` 8
`
`
`
`
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`with contempt of court, and potentially fines or even incarceration to compel
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`compliance, see 18 U.S.C. § 401, because there may be a valid federal defense to a
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`lawsuit they may wish to bring. The First Amendment protects “genuine” but
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`ultimately “unsuccessful” lawsuits, see BE & K Const. Co., 536 U.S. at 532, and it
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`ordinarily protects non-NLRB-related lawsuits from being enjoined when the
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`success of the lawsuits—which definitionally have yet to be filed—has not been
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`finally determined.
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`*
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`*
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`*
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`
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`The consequences of the panel opinion should not be understated. As the
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`Supreme Court has long held, the right to petition the government is implied by
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`“[t]he very idea of a [republican] government.” United States v. Cruikshank, 92
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`U.S. 542, 552 (1875); see Bill Johnson’s, 461 U.S. at 741. With its unprecedented
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`expansion of the “illegal objective” exception, the panel significantly undermines
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`the Petition Clause’s protections, permitting courts to enjoin litigation on pain of
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`contempt because one court forecasts that the litigation will fail against a federal
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`defense. The labor-specific “illegal objective” exception does not countenance
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`such an injunction for non-labor lawsuits. Accordingly, I respectfully regret this
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`Court’s decision to deny rehearing en banc and its resulting effects on litigants’
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`right to their day in court.
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` 9
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