BE&K Constr. Co. v. NLRB, 536 U.S. 516, 22 (2002)

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Cite as: 536 U. S. 516 (2002)

Scalia, J., concurring

outcome, in retaliation for NLRA protected activity, since the Board's standard does not confine itself to such suits. Likewise, we need not decide what our dicta in Bill John-son's may have meant by "retaliation." 461 U. S., at 747; see supra, at 527-528. Finally, nothing in our holding today should be read to question the validity of common litigation sanctions imposed by courts themselves—such as those authorized under Rule 11 of the Federal Rules of Civil Procedure—or the validity of statutory provisions that merely authorize the imposition of attorney's fees on a losing plaintiff.

The judgment of the Court of Appeals for the Sixth Circuit is therefore reversed, and the case is remanded for further proceedings consistent with this opinion.

It is so ordered.

Justice Scalia, with whom Justice Thomas joins, concurring.

Although the Court scrupulously avoids deciding the question (which is not presented in this case), I agree with Justice Breyer that the implication of our decision today is that, in a future appropriate case, we will construe the National Labor Relations Act (NLRA) in the same way we have already construed the Sherman Act: to prohibit only lawsuits that are both objectively baseless and subjectively intended to abuse process. See Professional Real Estate Investors, Inc. v. Columbia Pictures Industries, Inc., 508 U. S. 49, 60-61 (1993).

Choosing to make explicit what is implied, and then disagreeing with that result, Justice Breyer describes a number of differences between the NLRA and the Sherman Act, all of which suggest to him that a complainant enjoys greater First Amendment rights to file a lawsuit in the face of the latter than the former. Post, at 541-544 (opinion concurring in part and concurring in judgment). Missing from his list, however, is the most important difference of all, which suggests—indeed, demands—precisely the oppo-


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