Supreme Court Declines to Hear NLRB Deference Case 

The Supreme Court has declined to take up PG Publishing Co. v. NLRB, a case in which a Pittsburgh newspaper sought review of the “highly deferential” treatment given by the Third Circuit to the National Labor Relations Board’s interpretation of its own statutory authority.  The newspaper’s petition for writ of certiorari was denied on October 5^th.  The Court’s decision leaves unresolved the widening disagreement among the courts of appeals over the continuing legitimacy and scope of deference to the NLRB following the overruling of the Chevron doctrine in Loper Bright Enterprises v. Raimondo. 

Loper Bright and the Future of Deference Doctrines 

In Loper Bright, the Supreme Court clarified that Section 706 of the Administrative Procedure Act makes federal judges responsible for deciding all questions of law.  They do so by exercising their “independent judgment” as to the “best” reading of the law.  Although judges should pay “due respect” to the views of the executive branch, an agency’s interpretation only has persuasive value—it cannot control. 

Although Loper Bright technically clarified the role of the judiciary vis-à-vis Section 706 and cases governed by the APA, the decision’s reasoning was grounded in what I have repeatedly termed broader “constitutional atmospherics,” namely, a commitment to the separation of powers and Article III’s conception of the judicial function to provide a final interpretation of the law. 

If the constitutional grounding of Loper Bright is taken seriously, it becomes difficult to limit its impact to the APA.  In this sense, the end of Chevron deference has logical implications for other deference doctrines.  One of the clearest examples involves the traditional deference given to the NLRB for its interpretations of the National Labor Relations Act.   

NLRB deference, which is grounded in the supposed discretion the Board enjoys when developing national labor policy, predates both the APA and Chevron.  It also exists alongside another line of cases stretching back to NLRB v. Hearst Publications, which suggests courts ought to defer to the Board on “mixed questions” of law and fact.  The Solicitor General argued PG Publishing Co. really involved the substantial-evidence standard and deference to the Board’s application of legal standards to particular facts—something strongly disputed by the petitioner and which would anyway present a different, but equally important, Loper Bright implementation issue. 

The Strong Trend Against NLRB Deference 

Despite the precedential pedigree of deference to the NLRB, most of the courts to have considered the doctrine afresh in the wake of Loper Bright have rejected it.  I have previously analyzed, for example, the D.C. Circuit’s decision in Hospital Menonita de Guayama, as well the Second Circuit’s opinion in Siren Retail Corporation.  Those circuits join the Fourth, Fifth, Sixth, and Tenth Circuits in emphasizing a common proposition: the judiciary’s obligation, under Loper Bright, to exercise independent judgment when interpreting the law, even when dealing with statutes like the NLRA. 

The Third Circuit, so far, is the only court of appeals to have bucked this trend.  In 2024, in Alaris Health at Boulevard East v. NLRB, that Circuit explained “judicial deference to the Board[]” is “distinct from Chevron deference.”  Although it did not definitively reject the relevance of Loper Bright, the Circuit’s again avoided resolving the issue the following year, in Miller Plastic Products, Inc. v. NLRB.  The Miller Court observed that “Loper Bright did not necessarily displace . . . earlier precedents” on NLRB deference.  Interestingly, when it decided PG Publishing Co., the Circuit entirely omitted any reference to Loper Bright—or Alaris and Miller—and simply stated that review of NLRB orders must be “highly deferential.” 

What Comes Next? 

The Supreme Court’s denial of cert in PG Publishing Co. leaves the emerging circuit split in place.  It remains to be seen whether the Third Circuit reassess its position in the future and offers a definitive answer on the impact of Loper Bright, perhaps in a case in which the NLRB’s interpretation of the law more clearly deviates from the plain meaning of the NLRA.  That development—or new decisions from those courts of appeals that have yet to reach this question—could prompt the Supreme Court to intervene in the future.  In the meantime, courts will continue to unpack the doctrinal implications of Loper Bright on deference doctrines writ large. 

Ryan P. Mulvey is senior policy counsel at Americans for Prosperity Foundation.