Whether the Hobbs Act requires district courts to categorically defer to FCC interpretations of the Telephone Consumer Protection Act without independent judicial review

No question identified. : IN THE SUPREME COURT OF THE UNITED STATES No. A TRUE HEALTH CHIROPRACTIC, INC.; MCLAUGHLIN CHIROPRACTIC ASSOCS., INC., INDIVIDUALLY AND AS REPRESENTATIVES OF A CLASS OF SIMILARLY SITUATED PERSONS, Vv. MCKESSON CORPORATION; MCKESSON TECHNOLOGIES, INC. APPLICATION FOR AN EXTENSION OF TIME WITHIN WHICH TO FILE A PETITION FOR A WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT To the Honorable Elena Kagan, Associate Justice of the Supreme Court of the United States: Applicants McLaughlin Chiropractic Associates, Inc. and True Health Chiropractic, Inc. (collectively, “Plaintiffs”), respectfully request a 59-day extension of time, from March 19, 2024, to and including May 17, 2024, within which to file a petition for a writ of certiorari to review the judgment of the United States Court of Appeals for the Ninth Circuit in this case. The Ninth Circuit entered judgment on October 25, 2023. App., infra, 1a. The Ninth Circuit extended the time in which to file a petition for panel rehearing and rehearing en banc to November 22, 2023. On that date, Plaintiffs timely filed a petition for rehearing and rehearing en banc, which the Ninth Circuit denied on December 20, 2023. App., infra, 10a. A petition for a writ of certiorari is currently due on March 19, 2024. This application is being filed more than ten days before that date. See Sup. Ct. R. 13.5. The jurisdiction of this Court would be invoked under 28 U.S.C. § 1254(1). Copies of the opinion of the court of appeals, the order denying rehearing and rehearing en banc, and the two relevant opinions of the district court are attached to this application. App., infra, la—34a. 1. This case is a putative class action arising from a series of “unsolicited advertisements” McKesson sent by facsimile in 2009-2010, which Plaintiffs alleged (and proved, as to their individual claims) violated the Telephone Consumer Protection Act of 1991 (“TCPA”), 47 U.S.C. § 227(b)(1)(C). 2. After a years-long battle over class certification, including a ruling from the Ninth Circuit largely reversing the district court’s initial denial of class certification, see True Health Chiropractic, Inc. v. McKesson Corp., 896 F.3d 923, 930 (9th Cir. 2018), cert. denied 139 S. Ct. 2743 (2019), the district court ultimately decertified the class based solely on its conclusion that it was jurisdictionally “bound” by the Hobbs Act, 28 U.S.C. § 2342(1), to follow a declaratory ruling issued in December 2019 by the Consumer & Governmental Affairs Bureau of the Federal Communications Commission in Jn re Amerifactors Fin. Group, LLC Pet., 2019 WL 6712128 (CGAB Dec. 9, 2019) (“Amerifactors Ruling”), interpreting the statutory term “telephone facsimile machine” in 47 USS.C. § 227(a)(3). App., infra, 22a; id. 34a. The district court held the Amerifactors Ruling interpreted the statute to exclude users of “online fax services” and include only users of traditional “stand-alone” fax machines. App., infra, 33a. The district court concluded there was no manageable way to separate users of online fax services from users of “stand-alone” fax machines and decertified the class. App., infra, 34a. 3. The Ninth Circuit affirmed in all respects, holding that the Hobbs Act categorically requires district courts to accept the FCC’s legal interpretation of the TCPA, regardless of whether that interpretation is correct. App., infra,5a. Neither the district court nor the Ninth Circuit considered whether the Amerifactors Ruling’s interpretation of the statute was correct, whether it was “reasonable” under Chevron, U.S.A., Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837 (1984), or whether it was persuasive under Skidmore v. Swift Co., 323 U.S. 134, 140 (1944). Instead, the courts below simply held they were bound to follow the Amerifactors Ruling, regardless of the merits, on the basis that “exclusive jurisdiction” to “determine the validity” of that ruling lies in the court of appeals und