Ariana Cortes v. NLRB

United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued May 15, 2025 Decided July 22, 2025

No. 24-5152

ARIANA CORTES AND KARAM LOGAN,

APPELLANTS

v.

NATIONAL LABOR RELATIONS BOARD,

APPELLEE

Consolidated with 24-5166

Appeals from the United States District Court

for the District of Columbia

(No. 1:23-cv-02954)

Aaron Solem argued the cause for appellants/cross-

appellees. With him on the briefs was Glenn M. Taubman.

Padraic J. Lehane, Trial Attorney, National Labor

Relations Board, argued the cause for appellee/cross-appellant.

With him on the briefs were Jennifer A. Abruzzo, General

Counsel, at the time the brief was filed, William B. Cowen,

Acting General Counsel, Nancy E. Kessler Platt, Associate

General Counsel, Dawn L. Goldstein, Deputy Associate

General Counsel, Kevin P. Flanagan, Deputy Assistant

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General Counsel, Christine Flack and Michael S. Dale,

Supervisory Attorneys, and Marianne L. Bowers and Craig

Ewasiuk, Trial Attorneys. Phillip H. Melton, Attorney, entered

an appearance.

Before: SRINIVASAN, Chief Judge, MILLETT and GARCIA,

Circuit Judges.

Opinion for the court filed by Circuit Judge MILLETT.

MILLETT, Circuit Judge: Plaintiffs Ariana Cortes and

Logan Karam filed a lawsuit in district court seeking to

declare the statutory tenure protections for members of the

National Labor Relations Board unconstitutional. They now

appeal the district court’s order dismissing their case for lack

of jurisdiction. We hold that the parties are no longer

sufficiently adverse to support Article III jurisdiction.

Accordingly, we affirm the district court’s judgment

dismissing this case for lack of jurisdiction.

I

A

The National Labor Relations Board commonly

adjudicates unfair labor practice disputes between employers

on the one hand and employees or labor unions on the other.

29 U.S.C. § 153(a). The Board is made up of five members

who are “appointed by the President by and with the advice

and consent of the Senate” to serve staggered five-year terms.

Id. The President may remove a Board member “for neglect

of duty or malfeasance in office, but for no other cause.” Id.

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B

Plaintiffs Ariana Cortes and Logan Karam are baristas

employed at Starbucks stores in Buffalo, New York, and

Depew, New York, respectively. App. 26 (Am. Compl. ¶¶ 10,

11). In the Spring of 2022, the National Labor Relations

Board certified Workers United (“Union”) as the exclusive

representative of employees at the stores in which Ms. Cortes

and Mr. Karam work. App. 27, 31 (Am. Compl. ¶¶ 14, 31).

Once the Board certifies a union as the representative of

a particular bargaining unit, the law generally entitles that

union to a conclusive presumption of majority support for the

year following certification. Fall River Dyeing & Finishing

Corp. v. NLRB, 482 U.S. 27, 37 (1987); see also 29 U.S.C.

§ 159(c)(3) (“No election shall be directed in any bargaining

unit or any subdivision within which in the preceding twelve-

month period, a valid election shall have been held.”).

After that first year elapsed, Ms. Cortes filed a

decertification petition with the NLRB regional director

requesting a new election in her store to determine whether a

majority of the employees wished to continue being

represented by the Union. App. 28 (Am. Compl. ¶ 19) (citing

Starbucks Corporation, Case No. 03-RD-316974). On

October 18, 2023, Mr. Karam filed a similar decertification

petition. App. 32 (Am. Compl. ¶ 33) (citing Starbucks

Corporation, Case No. 03-RD-328126).

At the time that Ms. Cortes and Mr. Karam filed their

decertification petitions, the Union had already filed a number

of unfair labor practice proceedings against Starbucks. App.

28–30, 32 (Am. Compl. ¶¶ 21–23, 34). The Board generally

does not rule on a decertification petition when it has an unfair

labor practice proceeding pending against the employer as

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long as the regional director “has found merit in an unfair

labor practice charge involving misconduct that would

irrevocably taint the petition and any related election.” Rieth-

Riley Construction Co., 371 NLRB No. 109, slip op. at 1

(2022); NLRB Casehandling Manual (Part Two)

Representation Proceedings §§ 11730.3(b), 11733.1(a),

https://perma.cc/E9HS-NJB6. That is because the “standard

remedy” in an unfair labor practice proceeding is an extension

of the union’s one-year presumptive majority support status.

See J.G. Kern Enters. v. NLRB, 94 F.4th 18, 23 (D.C. Cir.),

cert. denied, 145 S. Ct. 380 (2024). For that reason, the

NLRB regional director dismissed Ms. Cortes’ and Mr.

Karam’s petitions subject to reinstatement after final

disposition in the pending unfair labor practice proceedings.

See NLRB Region 3 Decision and Order, 03-RD-316974

(May 25, 2023); NLRB Region 3 Decision and Order, 03-RD-

328126 (Nov. 28, 2023).

Ms. Cortes and Mr. Karam each sought review by the

Board of the regional director’s dismissal orders. App. 31

(Am. Compl. ¶ 26); App. 138. The Board denied their

requests for review, holding instead that their petitions were

subject to reinstatement, if appropriate, after final disposition

of the pending unfair labor practice proceedings against

Starbucks. App. 31 (Am. Compl. ¶ 27); App. 198. In line

with its standard practice, the Board made Ms. Cortes and Mr.

Karam parties in interest to the pending unfair labor practice

charges so that they would be notified of the final outcome of

those cases. Starbucks Corp., 372 NLRB No. 156 (Nov. 15,

2023); Starbucks Corp., 03-RD-328126 at 1 (March 12,

2024); see National Labor Relations Casehandling Manual

(Part One) Unfair Labor Practice Proceedings, § 11733.2(b),

https://perma.cc/PYF2-AUQ7.

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C

After Ms. Cortes and Mr. Karam filed their petitions for

decertification, they filed this lawsuit in the United States

District Court for the District of Columbia. The complaint

challenges the constitutionality of the statutory tenure

protections for members of the Board, 29 U.S.C. § 153(a), on

the basis that they place an impermissible limitation on the

President’s “executive Power” and charge to “take Care that

the Laws be faithfully executed,” U.S. CONST. Art. II, §§ 1, 3.

Ms. Cortes and Mr. Karam sought an injunction preventing

the Board from acting on their petitions for decertification

until the resolution of the lawsuit.

The Board moved to dismiss the lawsuit on the grounds

that the tenure protections are constitutional and that, even if

they are not, Ms. Cortes and Mr. Karam are not entitled to

relief because they were required to allege “compensable

harm,” but had failed to do so. App. 131 (citing Collins v.

Yellen, 594 U.S. 220, 259 (2021)).

The district court granted the Board’s motion to dismiss

on two grounds. See Cortes v. NLRB, No. 23-CV-2954, 2024

WL 1555877 (D.D.C. Apr. 10, 2024). First, the district court

concluded that Ms. Cortes and Mr. Karam each lacked

standing because, by the time the district court entered its

judgment, the Board had dismissed their petitions, and they

had not yet sought reinstatement of their decertification

petitions. For that reason, the district court concluded that Ms.

Cortes and Mr. Karam failed to establish an actual or

imminent injury. Id. at *4. Second, the district court agreed

with the Board that Ms. Cortes and Mr. Karam were required

to allege compensable harm and that they had failed to do so.

Id. at *6.

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II

On review before this court, the parties have shifted their

positions. Ms. Cortes and Mr. Karam have abandoned their

claims for injunctive relief and ask this court only to declare

that the Board members’ tenure protections violate Article II

of the Constitution. See Plaintiffs’ Reply Br. 8; Oral

Argument Tr. 14:19–15:11. In addition, on April 1, 2025, the

Board notified this court that, “consistent with the position of

the Acting Solicitor General,” it was “no longer relying on its

previous argument that the statutory tenure protections for

Board members are constitutional.” Board Notice of Position

Modification at 1. Therefore, the sole remedy Ms. Cortes and

Mr. Karam seek against the government is a judicial statement

of law with which the government fully agrees and has

already advanced in this very case.

Article III of the Constitution limits this court to the

adjudication of “[c]ases” and “[c]ontroversies.” U.S. CONST.

Art. III § 2. In that way, “Article III denies federal courts the

power ‘to decide questions that cannot affect the rights of

litigants in the case before them,’ and confines them to

resolving ‘real and substantial controversies admitting of

specific relief through a decree of a conclusive character[.]’”

Lewis v. Continental Bank Corp., 494 U.S. 472, 477 (1990)

(quoting North Carolina v. Rice, 404 U.S. 244, 246 (1971))

(citation omitted).

The Declaratory Judgment Act, 28 U.S.C. § 2201, “alone

does not provide a court with jurisdiction.” California v.

Texas, 593 U.S. 659, 672 (2021); see also Skelly Oil Co. v.

Phillips Petroleum Co., 339 U.S. 667, 671–672 (1950).

Rather, declaratory judgment actions must satisfy Article III’s

case-or-controversy requirement “just like suits for every

other type of remedy[.]” California, 593 U.S. at 672; see also

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MedImmune, Inc. v. Genentech, Inc., 549 U.S. 118, 126–127

(2007); Aetna Life Ins. Co. v. Haworth, 300 U.S. 227, 240–

241 (1937) (“The controversy must be definite and concrete,

touching the legal relations of parties having adverse legal

interests.”). The requirement that there be a live case or

controversy “subsists through all stages of federal judicial

proceedings, trial and appellate.” Lewis, 494 U.S. at 477.

To establish a case or controversy, the parties must have

adverse interests, meaning that a judgment benefiting the

plaintiff’s concrete interests must adversely affect a concrete

interest of the defendant. For example, in United States v.

Windsor, 570 U.S. 744 (2013), although the parties agreed

that the statute at issue was unconstitutional, the parties

remained adverse because Windsor sought not only a

declaration of unconstitutionality, but also a federal tax refund

that the government continued to refuse to pay, id. at 758.

Because an order directing the government to issue the refund

would cause the government a “real and immediate economic

injury” and would require the government to take an action it

would not “but for the court’s order,” a justiciable dispute

between the parties remained. Id. (internal citation omitted).

As a result, the government, in seeking Supreme Court

review, “retain[ed] a stake sufficient to support Article III

jurisdiction[.]” Id. at 757. The fact that the government “may

[have] welcome[d]” a lower court order requiring it to pay the

tax refund if that order were “accompanied by the

constitutional ruling it want[ed] [did] not eliminate the injury

to the national Treasury if payment is made, or to the taxpayer

if it is not.” Id. at 758.

Similarly, in Seila Law LLC v. Consumer Financial

Protection Bureau, 591 U.S. 197 (2020), the parties agreed

that the statutory tenure protections for the director of the

Consumer Financial Protection Bureau were unconstitutional.

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But constitutional adversity remained because the Bureau

continued to enforce a civil investigative demand against

Seila Law on the theory that the tenure protections were

severable from the rest of the statute. Id. at 212–213. As a

result, the court’s ruling would have “‘real meaning’ for the

parties.” Id. at 213 (quoting INS v. Chadha, 462 U.S. 919,

939 (1983)). “[R]eal-world consequences for the

Government and its adversary” resulting from a court order

“suffice[] to support Article III jurisdiction—even if ‘the

Executive may welcome’ an adverse order that ‘is

accompanied by the constitutional ruling it wants.’” Id. at 212

(quoting Windsor, 570 U.S. at 758).

In sum, to have a case or controversy, the parties must

seek adverse forms of relief from the court such that the

court’s judgment will “require [the defendant] to act,” NLRB

v. Constellium Rolled Prods. Ravenswood, LLC, 43 F.4th 395,

404 (4th Cir. 2022), in a way that will adversely affect its own

interests and, in that way, have “real meaning for the parties,”

Seila Law, 591 U.S. at 213 (internal citation omitted). Cf.

Hewitt v. Helms, 482 U.S. 755, 761 (1987) (“The real value

of the judicial pronouncement—what makes it a proper

judicial resolution of a ‘case or controversy’ rather than an

advisory opinion—is in the settling of some dispute which

affects the behavior of the defendant towards the plaintiff.”).

That type of adversity is missing here. Ms. Cortes, Mr.

Karam, and the government now fully agree that the Board

members’ removal protections are unconstitutional. Ms.

Cortes and Mr. Karam do not seek to enjoin the Board from

acting, nor do they seek a declaration that the Board itself is

unconstitutional. Cf. Free Enter. Fund v. Public Co. Acct.

Oversight Bd., 561 U.S. 477, 487 (2010) (seeking “a

declaratory judgment that the Board is unconstitutional and an

injunction preventing the Board from exercising its powers”).

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They have not asked this court to order the government to

confer a benefit on them or to enjoin any governmental action

affecting them. They seek only to have a court say what the

government has already said—the Board’s tenure protections

are unconstitutional. In other words, Ms. Cortes and Mr.

Karam have not sought any relief from this court that the

government has refused to provide. Awarding Ms. Cortes and

Mr. Karam the declaratory judgment they seek would have no

“real-world consequences” or “real meaning for the parties.”

Seila Law, 591 U.S. at 212–213 (internal citation omitted).

To be sure, the parties disagree about whether the

Supreme Court’s decision in Collins requires Ms. Cortes and

Mr. Karam first to establish “compensable harm” to be

eligible for the declaratory judgment they seek. Compare

Plaintiffs’ Opening Br. 53–60, with Gov’t Br. 24–42. But the

issue of Plaintiffs’ eligibility for relief does not itself create

adversity when, as here, answering that question would not

affect any concrete interest of either party. For even were this

court to find that Ms. Cortes and Mr. Karam are eligible for a

declaratory judgment in this case, the government would

suffer no “real-world consequences” that flow from that

determination. Seila Law, 591 U.S. at 212. Granting the

declaratory judgment requested in the complaint would lead

only to a judicial declaration of law with which the

government, Ms. Cortes, and Mr. Karam fully and mutually

agree.

At the same time, a decision ruling that Ms. Cortes and

Mr. Karam are not eligible for a declaratory judgment under

Collins would not affect any concrete interest of theirs

because the government does not seek to do anything adverse

to them or to withhold any action they desire. Under Article

III, the parties must have something beyond a debate of law

to win or lose. Said another way, the question for Article III

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adverseness is not whether the parties agree on every sub-

issue in the case, but whether the resolution of any of those

issues would create a judgment that adversely affects one

party’s concrete interests and benefits the other’s. Here, the

declaratory judgment that Ms. Cortes and Mr. Karam seek

would not adversely affect any concrete interest of the

government, and, in fact, the government is in full agreement

with the content of any such judgment.

III

For the foregoing reasons, we affirm the district court’s

judgment dismissing the case for lack of Article III

jurisdiction.

So ordered.