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U.S. Senate confirms Hinderaker to federal district court judgeship

The U.S. Senate confirmed John Hinderaker to the U.S. District Court for the District of Arizona by a 70-27 vote. The U.S. District Court for the District of Arizona is one of 94 U.S. District Courts. They are the general trial courts of the United States federal courts.

After Hinderaker receives his federal judicial commission and takes his judicial oath, the 13-member court will have six Republican-appointed judges and seven Democrat-appointed judges. Hinderaker will join four other judges appointed by President Trump.

The U.S. Senate has confirmed 217 of President Trump’s Article III judicial nominees—two Supreme Court justices, 53 appellate court judges, 160 district court judges, and two U.S. Court of International Trade judges—since January 2017.

Hinderaker was a judge of the Pima County Superior Court in Arizona from 2018 to 2020. Before that, he was an attorney in private practice. He earned his B.A., with honors, in business economics from the University of California, Santa Barbara, in 1991 and his J.D., magna cum laude, from the University of Arizona College of Law in 1996. During his legal studies, he was a member of the Arizona Law Review.

Additional reading
United States District Court for the District of Arizona
Federal judges nominated by Donald Trump



Judicial nominee confirmed to U.S. Court of Federal Claims

On September 22, 2020, the United States Senate confirmed the nomination of Edward Meyers to a federal judgeship on the United States Court of Federal Claims by a 66-27 vote. Meyers will join the court upon receiving his judicial commission and taking his judicial oath. 

Meyers was originally nominated to the seat by President Donald Trump (R) on November 19, 2019. The nomination was returned to the president at the sine die adjournment of the U.S. Senate on January 3, 2020. The president officially renominated Meyers on January 6. Meyers was nominated to replace Judge Lawrence J. Block, who retired on January 8, 2016. Meyers had his hearing before the Senate Judiciary Committee on January 8, 2020. Meyers was reported to the full Senate on March 12, 2020, after a 15-6 vote by the Senate Judiciary Committee.

After Meyers receives his judicial commission, the U.S. Court of Federal Claims will have:

  • Five vacancies
  • Eight Republican-appointed judges and three Democrat-appointed judges.

In addition to Meyers, President Trump has appointed five judges to the court. President George W. Bush (R) appointed two judges to the court, and President Barack Obama (D) appointed three judges to the court.

Since taking office, President Trump has nominated 269 individuals to federal judgeships, 217 of whom have been confirmed. There were 78 vacancies in the federal judiciary, as of September 1, 2020. Of those vacancies, 47 had pending nominations.

Additional reading
United States Court of Federal Claims
Federal judges nominated by Donald Trump
Article I tribunal



SEIU settles class-action lawsuit over dues deductions for home healthcare workers

SEIU settles class-action lawsuit over dues deductions for home healthcare workers                   

Earlier this month, the Service Employees  International Union, Healthcare Illinois and Indiana agreed to settle a class-action lawsuit over dues deduction practices as applied to home healthcare workers.

Who were the parties to the suit?  

The plaintiff was Hydie Nance, a home-based healthcare provider in Illinois. The National Right to Work Legal Defense Foundation represented Nance. The group describes itself as a nonprofit whose “mission is to eliminate coercive union power and compulsory unionism abuses through strategic litigation, public information, and education programs.” 

The defendant was the Service Employees  International Union, Healthcare Illinois and Indiana (SEIU-HCII). According to its most recent federal report the union’s membership is 61,637. SEIU-HCII represents healthcare, child-care, home-care, and nursing home workers in Illinois, Indiana, Missouri, and Kansas.

What was at issue?

Illinois’ Home Services Plan “provides services to individuals with severe disabilities so they can remain in their homes and be as independent as possible.” The Illinois Department of Human Services administers the program, which uses Medicaid funds to pay for a variety of services, including personal assistance, homemaker services, and others. 

Nance provides home-based healthcare under the Home Services Plan.  She alleged that the Illinois Department of Human Services “deducted union dues from the subsidies of home healthcare providers without informing them that ‘that they have a First Amendment right not to financially support SEIU-HCII.'”

Nance twice requested that SEIU-HCII stop deducting dues from her subsidies. After her second request, SEIU-HCII officials told her that a valid photo ID was needed in order to process these requests. Nance subsequently filed suit in the U.S. District Court for the Northern District of Illinois, alleging the dues deduction system “impedes and burdens personal assistants’ First Amendment right to stop subsidizing SEIU-HCII and its speech.” Nance also argued that the photo ID requirement “impinges on personal assistants’ right to privacy and exposes them to the threat of identity theft.” 

Relevant precedents

Nance’s attorneys cited two U.S. Supreme Court decisions, Harris v. Quinn and Janus v. AFSCME

In Harris v. Quinn, decided in 2014, the court struck down an Illinois statute compelling a specific class of home healthcare workers to pay fees to the Service Employees International Union. 

In Janus v. AFSCME, decided in 2018, the court ruled that public-sector unions cannot compel non-member employees they represent to pay fees to cover the costs of non-political union activities. To do so, the court determined, would constitute a violation of employees’ First Amendment rights

What were the terms of settlement?

Under the terms of the settlement, SEIU-HCII agreed to

  • Refund Nance $245 in dues deducted from her subsidies after she requested the union stop deducting dues. 
  • Accept requests to end dues deductions without requiring employees to provide photo identification.
  • “Identify from its records providers whose requests to resign their union membership” were rejected due to their failure to provide photo identification and process those requests. 
  • Accept dues deduction requests made on forms provided by third-party organizations.

What were the reactions?

National Right to Work Foundation President Mark Mix said, “Though this settlement puts an end to this blatantly unconstitutional arrangement, it is outrageous that over two years after Janus was decided and over eight years after Harris was decided, union bosses still refuse to respect, and devise ways to circumvent, the constitutional rights of those they claim to represent.” 

SEIU-HCII has not made a public statement on the settlement and declined to respond to requests for comment from other media outlets. 

What we’re reading

The big picture

Number of relevant bills by state

We are currently tracking 102 pieces of legislation dealing with public-sector employee union policy. On the map below, a darker shade of green indicates a greater number of relevant bills. Click here for a complete list of all the bills we’re tracking. 

Number of relevant bills by current legislative status

Number of relevant bills by partisan status of sponsor(s) 

Recent legislative actions

  • Vermont S0254: This bill would require public employers to provide unions with employee contact information. It would provide for the automatic deduction of union dues from members’ paychecks, and it would permit unions to meet with new employees to provide them with information regarding union membership.
    • Democratic sponsorship.
    • Senate approved Sept. 4. Referred to House General, Housing, and Military Affairs Committee Sept. 8. Committee hearing scheduled Sept. 17.


Federal judge finds Pennsylvania’s COVID-19 orders unconstitutional

On September 14, 2020, Judge William Stickman IV, of the U.S. District Court for the Western District of Pennsylvania, struck down some of Penn. Gov. Tom Wolf’s (D) COVID-19 orders as violations of rights guaranteed by the U.S. Constitution.

Various Pennsylvania counties, businesses, and elected officials brought the lawsuit County of Butler v. Wolf, which challenged restrictions on indoor and outdoor gatherings, the continued closure of “non-life-sustaining” businesses, and prolonged stay-at-home orders. In his decision, Stickman wrote the “liberties protected by the Constitution are not fair-weather freedoms,” and the “Constitution cannot accept the concept of a ‘new normal’ where the basic liberties of the people can be subordinated to open-ended emergency mitigation measures.” President Donald Trump (R) appointed Stickman to the federal bench.

Stickman found “(1) that the congregate gathering limits … violate the right of assembly enshrined in the First Amendment; (2) that the stay-at-home and business closure components of defendants’ orders violate the due process clause of the Fourteenth Amendment; and (3) that the business closure components of defendants’ orders violate the Equal Protection Clause of the Fourteenth Amendment.” Stickman limited remedy to the plaintiff individuals and businesses, dismissing the counties for lacking standing to sue.

Thomas E. Breth, an attorney for the plaintiffs, said, “You can’t tell 13 million Pennsylvanians that they have to stay home. That’s not America. It never was. That order was horrible.” Lyndsay Kensinger, Wolf’s press secretary, indicated that Wolf would seek to stay the decision while seeking an appeal, adding that the “ruling does not impact any of the other mitigation orders currently in place including … mandatory telework, mandatory mask order, worker safety order, and the building safety order.”

Additional reading:


No current U.S. Circuit Court of Appeals vacancies

Seventeen U.S. Court of Appeals judgeships were vacant when President Trump was inaugurated on January 20, 2017. Today, there are no U.S. Circuit Court of Appeals vacancies. According to the Administrative Office of U.S. Courts, no U.S. Circuit Court of Appeals judges have announced their intent to leave active judicial status during the remainder of Trump’s current term.

This is the first time there have been no federal appeals court vacancies since at least 1977. Between January 1, 1977, and January 1, 2019, an average of 9.6% of U.S. Circuit Court of Appeals judgeships were vacant.

Additional reading:


Class-action lawsuits over repaying public-sector union fees rejected

Third Circuit rejects class-action lawsuits over repaying public-sector union fees                   

On Aug. 28, a three-judge panel of the United States Court of Appeals for the Third Circuit affirmed two lower court rulings that public-sector unions cannot be held liable for repaying fees collected from non-members before Janus v. AFSCME.

Who are the parties to the suit?  

The Third Circuit issued a joint ruling on two separate, but related, lawsuits: 

Diamond v. Pennsylvania State Education Association

The plaintiffs are Arthur Diamond, Jeffrey Schawartz, Sandra H. Ziegler, Matthew Shively, Matthew Simkins, Douglas R. Kase, and Justin Barry, all current or former public school teachers in Pennsylvania. The defendants are the Pennsylvania State Education Association, the Chestnut Ridge Education Association, the National Education Association, and several individuals in their official state capacities.

Wenzig v. Service Employees International Union Local 668

The plaintiffs are Janine Wenzig and Catherine Kioussis, two Pennsylvania state employees. The defendant is the Services Employees International Union Local 668.

What is at issue?

On June 27, 2018, the Supreme Court of the United States issued its decision in Janus v. American Federation of State, County, and Municipal Employees. In a 5-4 decision, the court ruled that public-sector unions cannot compel non-member employees they represent to pay fees to cover the costs of non-political union activities. To do so, the court determined, would constitute a violation of employees’ First Amendment rights.

Janus overturned the court’s 1977 decision in Abood v. Detroit Education Association. In Abood, the court ruled that public-sector unions could require non-members to pay fees to support union activities that benefitted them (e.g., collective bargaining).  These fees are generally referred to as either fair-share or agency fees. 

After Janus, the plaintiffs in both Diamond and Wenzig petitioned for reimbursement for the agency fees they, and those similar to them, paid before Janus. On July 8, 2019, Judge Kim Gibson of the U.S. District Court for the Western District of Pennsylvania dismissed Diamond, ruling that the union had collected the fees in good faith given then-prevailing law. On Dec. 10, 2019, Judge Malachy E. Mannion of the U.S. District Court for the Middle District of Pennsylvania issued a similar dismissal for Wenzig. 

Both the Diamond and Wenzig plaintiffs appealed to the Third Circuit, which consolidated the two suits. Oral argument occurred on April 24. 

How did the court rule?

The appellate panel voted 2-1 to affirm the lower court decisions. Judge Marjorie Rendell, a Bill Clinton (D) appointee, wrote the court’s opinion. Rendell cited similar recent decisions by other federal appellate courts.

We are not the first court of appeals to rule on this question, and we join a growing consensus of our sister circuits who, in virtually identical cases, have held that because the unions collected the fair-share fees in good faith reliance on a governing state statute and Supreme Court precedent, they are entitled to a good faith defense that bars Appellants’ claims for monetary liability under 42 U.S.C. §1983.

42 U.S.C. §1983 “creates a cause of action for plaintiffs who are injured by a person who, acting ‘under the color of any statute … of any State,’ causes the plaintiff to suffer ‘the deprivation of any rights, privileges, or immunities secured by the Constitution.” Rendell, pointing to unclear Supreme Court precedent on the question of whether “private parties may assert a good faith defense to §1983 liability,” cited a Third Circuit precedent to that effect: 

In Jordan v. Fox, Rothschild, O’Brien & Frankel, we held that a ‘good faith defense is available’ to private parties who act under color of state law and are sued for monetary liability under §1983. We stated our ‘basic agreement’ that ‘private defendants should not be held liable under §1983 absent a showing of malice and evidence that they either knew or should have known of the state’s constitutional infirmity.’

Judge D. Michael Fisher, a George W. Bush (R) appointee, wrote a separate opinion concurring in the court’s judgment but dissenting from Rendell’s reading of 42 U.S.C. §1983:

[The] Supreme Court has … read immunities and defenses into § 1983, but it has done so principally on the conceit that they were available at common law in 1871, and implicitly incorporated into the statute. While this approach certainly limits the scope of liability, it also constrains judges from straying too far from the statutory text.

Judge Peter Phipps, a Donald Trump (R) appointee, dissented from the judgment, writing: 

The central question presented in these consolidated cases, which seek recovery of agency fees garnished from the wages of non-union members, is whether a good faith affirmative defense exists to a First Amendment compelled speech claim under §1983. I do not see a valid basis for recognizing such a defense. A good faith affirmative defense was not firmly rooted in the common law in 1871 when § 1983 was enacted, and nothing else compels recognition of such a defense today.

About the Third Circuit

The United States Court of Appeals for the Third Circuit is a federal court that hears appeals from the district courts in Delaware, New Jersey, and Pennsylvania. The court has 14 authorized judicial posts and no current vacancies. The chief judge is Brooks Smith, a George W. Bush appointee. Of the court’s 14 active judges, six were appointed by Democrats and eight by Republicans. Appeals are heard in the James A. Byrne Federal Courthouse in Philadelphia, Pennsylvania. 

What comes next?

Attorneys for the plaintiffs have not said whether they intend to appeal the decision. The case names and numbers are Diamond v. Pennsylvania State Education Association (19-2812) and Wenzig v. Service Employees International Union Local 668 (19-3906).

What we’re reading

The big picture

Number of relevant bills by state

We are currently tracking 102 pieces of legislation dealing with public-sector employee union policy. On the map below, a darker shade of green indicates a greater number of relevant bills. Click here for a complete list of all the bills we’re tracking. 

Number of relevant bills by current legislative status

Number of relevant bills by partisan status of sponsor(s) 

Recent legislative actions

No legislative actions have been taken on relevant bills since our last issue.



U.S. Senate confirms two U.S. District Court nominees

The U.S. Senate confirmed Christy Wiegand to the U.S. District Court for the Western District of Pennsylvania and Brett Ludwig to the U.S. District Court for the Eastern District of Wisconsin. The Western District of Pennsylvania and the Eastern District of Wisconsin are two of 94 U.S. District Courts. They are the general trial courts of the United States federal courts.

After Wiegand receives her federal judicial commission and takes her judicial oath, the court will have eight Republican-appointed judges and two Democrat-appointed judges. Wiegand will join seven other judges appointed by President Trump.

After Ludwig receives his judicial commission and takes his judicial oath, the court will have two Republican-appointed judges and two Democrat-appointed judges. Ludwig will be the first judge appointed by President Trump to join the court.

The U.S. Senate has confirmed 205 of President Trump’s Article III judicial nominees—two Supreme Court justices, 53 appellate court judges, 148 district court judges, and two U.S. Court of International Trade judges—since January 2017.

Additional reading


President Trump announces federal judicial nominee to Article I court

On September 2, 2020, President Donald Trump (R) announced his intent to nominate Stephen A. Kubiatowski to a seat on the United States Court of Federal Claims.

Following nomination by the president, a federal judicial nominee completes a questionnaire that is reviewed by the Senate Judiciary Committee. The committee then holds a hearing to question the nominee regarding their judicial philosophy and their previous rulings. The committee also sends the nominee’s home state senators a blue slip, permitting them to express their approval or disapproval of the nominee.

After the hearing, the committee votes to approve or return the nominee. If approved, the nominee is reported to the full Senate for a vote. If returned, the president may renominate the person. If the Senate confirms the nomination, the individual receives commission to serve as a federal judge for a life term. If the individual is not confirmed, they do not become a judge.

There are currently six vacancies on the U.S. Court of Federal Claims, out of the court’s 16 judicial positions.

The U.S. Court of Federal Claims has 10 active Article I judges:
Chief Judge Margaret M. Sweeney – nominated by President George W. Bush (R)
Ryan Holte – nominated by President Donald Trump (R)
Patricia Campbell-Smith – nominated by President Barack Obama (D)
Lydia Kay Griggsby – nominated by President Barack Obama (D)
Elaine Kaplan – nominated by President Barack Obama (D)
Thomas C. Wheeler – nominated by President George W. Bush (R)
Richard Hertling – nominated by President Donald Trump (R)
David A. Tapp – nominated by President Donald Trump (R)
Matthew Solomson – nominated by President Donald Trump (R)

Eleni Roumel – nominated by President Donald Trump (R)

The court’s 11 judges on senior status are:
Edward J. Damich – nominated by President Bill Clinton (D)
Nancy B. Firestone – nominated by President Bill Clinton (D)
Marian Blank Horn – nominated by President George W. Bush (R)
Charles F. Lettow – nominated by President George W. Bush (R)
Susan G. Braden – nominated by President George W. Bush (R)
Mary Ellen Coster Williams – nominated by President George W. Bush (R)
Victor J. Wolski – nominated by President George W. Bush (R)
Robert H. Hodges Jr. – nominated by President George W. Bush (R)
Loren A. Smith – nominated by President Ronald Reagan (R)
John Paul Wiese – nominated by President Ronald Reagan (R)

Eric G. Bruggink  – nominated by President Ronald Reagan (R)

The U.S. Court of Federal Claims is an Article I tribunal, a federal court organized under Article One of the United States Constitution. The court hears claims against the U.S. government. Judgments of the court may be appealed to the Federal Circuit.

The court has jurisdiction over claims across the United States for over $10,000 and congruent jurisdiction with the United States District Courts on claims under $10,000.

Additional reading:


Trump has appointed second-most federal judges through September 1 of a president’s fourth year

Donald Trump has appointed and the Senate has confirmed 203 Article III federal judges through September 1, 2020, his fourth year in office. This is the second-most Article III judicial appointments through this point in all presidencies since Jimmy Carter (D), and is tied with the presidency of Bill Clinton (D). The Senate had confirmed 248 of Carter’s appointees at this point in his term.

The average number of federal judges appointed by a president through September 1 of their fourth year in office is 191.

The median number of Supreme Court justices appointed is two. Along with President Trump, Presidents Barack Obama (D), Bill Clinton (D), and George H.W. Bush (R) had each appointed two Supreme Court justices at this point in their first terms. Ronald Reagan (R) had appointed one, while Carter and George W. Bush (R) had not appointed any.

The median number of United States Court of Appeals appointees is 35. Carter appointed the most with 54, while Reagan appointed the least with 28. Trump’s 53 appointments make up 30% of the total 179 judgeships across the courts of appeal.

The median number of United States District Court appointees is 146. Carter appointed the most with 191, and Reagan appointed the fewest with 117. Trump has appointed 146 district court judges so far. Those appointments make up 22% of the 677 judgeships across the district courts.

Article III federal judges are appointed for life terms by the president of the United States and confirmed by the U.S. Senate per Article III of the United States Constitution. Article III judges include judges on the Supreme Court of the United States, U.S. courts of appeal, U.S. district courts, and the Court of International Trade.

Additional reading:


Federal court rejects challenge to Ohio exclusive representation law

Sixth Circuit rejects challenge to Ohio exclusive representation law                   

On Aug. 25, a three-judge panel of the United States Court of Appeals for the Sixth Circuit rejected a challenge to Ohio laws that allow unions to become exclusive bargaining agents for all public-sector employees within a bargaining unit.

Who are the parties to the suit?  

The plaintiff is Jade Thompson, a Spanish teacher at Marietta High School in Ohio.  Attorneys from the Buckeye Institute and Baker and Hostetler, LLP, represent her. The Buckeye Institute describes itself as “an independent research and educational institution – a think tank – whose mission is to advance free-market public policy in the states.” 

The defendants are the Marietta City School District Board of Education and the Marietta Education Association, a teachers’ union that is the exclusive bargaining representative for the district’s employees. 

What is at issue?

Ohio law allows a union to become the exclusive bargaining agent for all public-sector employees within a bargaining unit, if the union can prove that a majority of the unit’s members want its representation. If a union has been certified as a unit’s exclusive bargaining agent, the public employer must bargain with that union and no one else. This prohibition extends both to individuals and other labor organizations. 

Thompson, who is not a member of the union that represents her bargaining unit, objects to the union’s “policies and to any association with it.” She filed suit in the United States District Court for the Southern District of Ohio, alleging that: 

  1. Ohio’s exclusive bargaining law “violates her [First Amendment] rights to be free from compelled speech and association”
  2. The law violates her First Amendment “right to meaningfully communicate with the government”

Judge Michael Watson, who was appointed to the bench by George W. Bush (R), rejected these arguments on Nov. 26, 2019. Thompson appealed the decision to the United States Court of Appeals for the Sixth Circuit. 

How did the court rule?

The three-judge appellate panel unanimously affirmed the district court’s decision. Judge Amul Thapar, who was appointed to the court by Donald Trump (R), wrote the court’s opinion. Addressing Thompson’s first argument, Thapar cited Minnesota State Board for Community Colleges v. Knight. In Knight, a group of non-union community college instructors objected to a Minnesota statute allowing an exclusive representative to speak on behalf of all of a bargaining unit’s employees at “meet and confer” sessions. The U.S. Supreme Court ruled Minnesota had “in no way restrained [the instructors’] freedom to speak … or their freedom to associate or not to associate with whom they please.” Thapar wrote: 

“Knight controls here. If allowing exclusive representatives to speak for all employees at “meet and confer” sessions does not violate the First Amendment, we see no basis for concluding that the result should be different where the union engages in more traditional collective bargaining activities. It appears that every other circuit to address the issue has agreed.”

Regarding Thompson’s second argument, Thapar wrote: 

“First, we consider Smith v. Arkansas State Highway Employees. There, the [Supreme Court] held that the First Amendment imposes no “affirmative obligation on the government to listen, to respond[,] or . . . [to] bargain.” And since the government has no obligation to bargain with Thompson, it is difficult to see how the government’s decision to bargain with someone else violates her rights. Second, in Knight, the Supreme Court recognized that it was “doubtless true that the unique status of the exclusive representative … amplifies its voice in the policymaking process.” But amplification “is inherent in government’s freedom to choose its advisers.” And a “person’s right to speak is not infringed when government simply ignores that person while listening to others.” Thus, Knight again forecloses Thompson’s claim.”

Judges Julia Gibbons and Richard Griffin, both George W. Bush (R) appointees, joined Thapar’s opinion. 

About the Sixth Circui

The United States Court of Appeals for the Sixth Circuit is a federal court that hears appeals from the district courts within its jurisdiction, which includes Kentucky, Michigan, Ohio, and Tennessee. The court has 16 authorized judicial posts and no current vacancies. The chief judge is Guy Cole, a Bill Clinton (D) appointee. Of the court’s 16 active judges, five were appointed by Democrats and 11 by Republicans. Appeals are heard in the Potter Stewart United States Courthouse in Cincinnati, Ohio. 

What comes next?

Neither Thompson nor her attorneys have not said whether they will appeal the decision. The case name and number are Thompson v. Marietta Education Association (19-4217).

What we’re reading

The big picture

Number of relevant bills by state

We are currently tracking 102 pieces of legislation dealing with public-sector employee union policy. On the map below, a darker shade of green indicates a greater number of relevant bills. Click here for a complete list of all the bills we’re tracking. 

Number of relevant bills by current legislative status

Number of relevant bills by partisan status of sponsor(s) 

Recent legislative actions

No legislative actions have been taken on relevant bills since our last issue.



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