BE&K Constr. Co. v. NLRB, 536 U.S. 516, 23 (2002)

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Opinion of Breyer, J.

site conclusion. Under the Sherman Act, the entity making the factual determination whether the objectively reasonable suit was brought with an unlawful motive would have been an Article III court; even with that protection, we thought the right of access to Article III courts too much imperiled. Under the NLRA, however, the entity making the factual finding that determines whether a litigant will be punished for filing an objectively reasonable lawsuit will be an executive agency, the National Labor Relations Board. That this difference undermines Justice Breyer's analysis, there can be no doubt. At the very least, it poses a difficult question under the First Amendment: whether an executive agency can be given the power to punish a reasonably based suit filed in an Article III court whenever it concludes—insulated from de novo judicial review by the substantial-evidence standard of 29 U. S. C. 160(e), (f)—that the complainant had one motive rather than another. This makes resort to the courts a risky venture, dependent upon the findings of a body that does not have the independence prescribed for Article III courts. It would be extraordinary to interpret a statute which is silent on this subject to intrude upon the courts' ability to decide for themselves which postulants for their assistance should be punished.

For this reason, I am able, unlike Justice Breyer, to join the Court's opinion in full—including its carefully circumscribed statement that "nothing in our holding today should be read to question the validity of common litigation sanctions imposed by courts themselves," ante, at 537 (emphasis added).

Justice Breyer, with whom Justice Stevens, Justice Souter, and Justice Ginsburg join, concurring in part and concurring in the judgment.

As I understand the Court's opinion, it focuses on employer lawsuits that are (1) reasonably based, (2) unsuccessful, and (3) filed with a "retaliatory motive," i. e., a motive to

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