Starbucks Workers’ Attack on NLRB Meets Skeptical D.C. Cir. (1)

A federal appeals court expressed doubts during oral argument that it has jurisdiction to rule on two Starbucks Corp. workers’ bid for a judgment saying the National Labor Relations Board members’ removal protections violate the Constitution.

US Court of Appeals for the District of Columbia Circuit judges Thursday pointed out that the NLRB now shares the same view on the invalidity of the members’ firing shields as the workers, who were represented by Aaron Solem of the National Right to Work Legal Defense Foundation. Federal judges can only rule in cases when parties take adverse positions to one another.

Judge Brad Garcia, a Biden appointee, said Solem seems to want the court to declare that the members’ job safeguards are unconstitutional to “preempt” a decision going the other way in “a case where the parties do disagree.”

This “sets off every alarm bell I have for what it means to only resolve controversies with adverse parties,” Garcia said. “It seems exactly backwards.”

The hearing came a day before a different D.C. Circuit panel will hear oral arguments over President Donald Trump’s authority to fire NLRB member Gwynne Wilcox and Merit Systems Protection Board member Cathy Harris despite their statutory protections against at-will dismissal.

Two Right to Work-backed Starbucks employees sued the NLRB in 2023, after the agency tossed their attempts to eject Starbucks Workers United from stores in the Buffalo, N.Y., area until it resolves related unfair labor practice cases.

Their lawsuit presaged the wave of legal attacks in 2024 from SpaceX, Amazon.com Inc., and other employers that argued various parts of the NLRB’s structure violate the Constitution.

A federal judge threw out the Starbucks workers’ lawsuit on standing grounds, saying thy can’t rest their allegations on future attempts to reinstate the decertification petitions.

‘In-Between Time’

The landscape for Ariana Cortes and Logan Karam’s constitutional dispute with the NLRB shifted following Trump’s termination of Wilcox a week after his inauguration. The agency changed its litigation position, adopting the view that the for-cause restrictions on when Trump could fire an NLRB member don’t pass constitutional muster.

At oral argument, Solem said the workers’ best case for court jurisdiction is if Wilcox is allowed to return to the board, which a district judge called for before her order was stayed by a D.C. Circuit panel and later by the chief justice of the US Supreme Court.

But Circuit Judge Patricia Millett said Wilcox’s reinstatement is unresolved.

“We’re in this in-between time,” said Millett, an Obama appointee. “We assess whether there is adversity between parties at the time of our decision. And there isn’t, now.”

A declaratory judgment that the removal protections are unconstitutional would “serve as a shield against her return” to the board, Solem said.

“If there isn’t jurisdictional problem, what you’re basically describing is that we should decide this case to interrupt ongoing litigation over Wilcox’s reinstatement,” Garcia said. “Why would that be appropriate?”

The Starbucks workers’ case is just as important as Wilcox’s litigation seeking a return to the board, Solem said.

Judge Sri Srinivasan, an Obama appointee, asked whether Solem would object holding the case until the circuit court resolves the disputes involving Wilcox and Harris, if he got past the jurisdictional problem.

Solem said he would, pointing out the Starbucks workers’ case has been pending longer than Wilcox v. Trump.

Given the tenor of the argument, the Starbucks’ workers best hope for the court finding jurisdiction appears to reside in the NLRB making them parties of interest in ongoing unfair labor practice cases.

Millett sought clarity about whether that means Cortes and Karam are technically still before the NLRB. She got seemingly contradictory answers from Solem and NLRB lawyer Padraic Lehane on that point.

The case is Cortes v. NLRB, D.C. Cir., No. 24-05152, oral argument held 5/15/25.