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Ohio state government employee asks SCOTUS to consider class-action lawsuit over refunds for previously paid union fees

Ohio state government employee asks SCOTUS to consider class-action lawsuit over refunds for previously paid union fees           

On Oct. 8, attorneys for an Ohio state employee petitioned the U.S. Supreme Court to take up his class-action lawsuit, in which he is seeking refunds for the dues he and other non-member employees were required to pay to the union representing their workplace.

Who are the parties to the suit?  

The plaintiff is Nathaniel Ogle, an employee of the Ohio Department of Taxation. Attorneys from the National Right to Work Legal Defense Foundation (NRTWLDF) are representing Ogle. NRTWLDF 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 is the Ohio Civil Service Employee Association (OCSEA), the exclusive bargaining representative for Ohio state employees. OCSEA is an affiliate of the American Federation of State, County, and Municipal Employees. According to its website, OCSEA represents roughly 30,000 state and local government employees.  

What is at issue?

Ogle, who began working for the state in 2011 and was never a dues-paying member of OCSEA, was required to pay fees to support non-political union activities, including collective bargaining, contract administration, and grievance arbitration. This was in keeping with the U.S. Supreme Court’s 1977 ruling in Abood v. Detroit Education Association, in which the court upheld the constitutionality of these fees, which are commonly referred to as either agency or fair-share fees.  

However, on June 27, 2018, the Supreme Court issued its decision in Janus v. AFSCME, overturning the Abood precedent. The court ruled that public-sector unions cannot compel non-member employees to pay agency fees.  

On Oct. 15, 2018, Ogle filed a class-action lawsuit against OCSEA in the U.S. District Court for the Southern District of Ohio. Citing Janus, Ogle’s attorneys argued that “OCSEA’s seizure of fair-share fees from Ogle, and from other employees who did not affirmatively consent to paying such fees prior to their exaction, violated their First Amendment rights.” His attorneys said that, in light of Supreme Court decisions preceding Janus, “OCSEA should have known that its seizure of fair-share fees from unconsenting employees violated their First Amendment rights.” They asked that the court “refund with interest all fair-share fees that were unconstitutionally extracted from Ogle and his fellow class members.” 

How have the lower courts ruled?

On July 17, 2019, Judge George Smith granted the defendants’ motion to dismiss the lawsuit, finding that the union had acted in good faith according to the Abood precedent and was not liable to refund agency fees paid before Janus. Smith is a Ronald Reagan (R) appointee. 

Ogle appealed Smith’s ruling to the U.S. Court of Appeals for the Sixth Circuit. A three-judge panel unanimously affirmed Smith’s decision. The panel included Judges Jeffrey Sutton, John K. Bush, and Chad Readler. Sutton is a George W. Bush (R) appointee, and Bush and Readler are Donald Trump (R) appointees. 

What comes next?

On Oct. 14, the Supreme Court added Ogle v. Ohio Civil Service Employees Association to its schedule for consideration. A response from the defendants is due Nov. 13. 

Ogle is the fifth suit of its kind pending before the high court. The other four include Casanova v. International Association of Machinists, Janus v. AFSCME (not to be confused with the 2018 Janus decision), Danielson v. Inslee, and Mooney v. Illinois Education Association

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.
    • Governor signed into law Oct. 12.


U.S. Supreme Court agrees to hear Appointments Clause challenge to administrative patent judges

On October 13, the U.S. Supreme Court agreed to hear United States v. Arthrex Inc., a case involving the president’s appointment and removal power and whether administrative patent judges (APJs) are principal officers of the United States who must be appointed by the president and confirmed by the U.S. Senate.

After losing a patent dispute before three APJs, Arthrex, Inc. appealed their decision to the U.S. Court of Appeals for the Federal Circuit. Arthrex argued that the APJs were principal officers and that allowing the secretary of commerce to appoint them violated the Appointments Clause in Article II of the U.S. Constitution. The Federal Circuit ruled in Arthrex’s favor, holding that the removal protections APJs enjoy as members of the federal civil service makes them principal officers who must be appointed by the president, not the secretary of commerce.

To resolve what they saw as an unconstitutional process, the Federal Circuit ruled that federal removal protections could not apply to APJs moving forward. The court’s opinion states that making the APJs removable at-will changes them into inferior officers and allows the secretary of commerce to appoint them.

The U.S. government appealed the decision of the Federal Circuit. Former Solicitor General Noel Francisco argued that the U.S. Supreme Court should review the case because the Federal Circuit’s decision found “a constitutional infirmity in the statutory framework that governs more than 200 agency adjudicators, in an agency that administers intellectual-property rights affecting vast swaths of the Nation’s economy.” He also argued that the Federal Circuit was wrong to conclude that APJs were principal officers that needed to be appointed by the president and confirmed by the U.S. Senate.

The Appointments Clause of the U.S. Constitution gives the president the power, with the advice and consent of the U.S. Senate, to appoint ambassadors, public ministers and consuls, justices of the Supreme Court, and other officers of the United States. The clause allows Congress to give authority to the president alone, courts, or department heads to appoint inferior officers.

Debates over the extent of the appointment and removal power and how it applies to those who work in federal agencies are part of a broader debate about executive control of agencies. Executive control of agencies is one of five pillars key to understanding the main areas of debate about the nature and scope of the administrative state.

To learn more about the case or the appointment and removal power, see here:
United States v. Arthrex Inc.
Appointment and removal power (administrative state)

Additional reading:
Five pillars of the administrative state: Executive control of agencies
Arguments in favor of strong executive appointment and removal power
Arguments against strong executive appointment and removal power
Reform proposals related to executive appointment and removal power
List of scholarly work pertaining to executive appointment and removal power

Link to the October 13 SCOTUS order list:
https://www.supremecourt.gov/orders/courtorders/101320zor_8m58.pdf

Link to the U.S. Government petition for certiorari:
https://www.supremecourt.gov/DocketPDF/19/19-1434/146330/20200625125505259_19-___%20-%20USA%20v.%20Arthrex%20%20USA%20v.%20Polaris%20Petition.pdf

Link to the Federal Circuit opinion:
https://casetext.com/case/arthrex-inc-v-smith-nephew-inc-2021



SCOTUS allows Trump administration to end 2020 census count

The U.S. Supreme Court issued an order on Oct. 13 which allows the Trump administration to end the 2020 census count. SCOTUS stayed an order from the 9th U.S. Circuit Court of Appeals, which had directed the Trump administration to continue to gather data through the end of October.

The Trump administration had argued that they must be able to conclude the count before the end of October in order to meet a Dec. 31 deadline to report the results to the president. The Justice Department had told the court that “there is virtually no prospect that the [U.S. Census] Bureau will be able to comply with the statutory deadline,” unless they were allowed to end the count.

Justice Sonia Sotomayor dissented, saying: “[T]he harms associated with an inaccurate census are avoidable and intolerable,” and that “meeting the deadline at the expense of the accuracy of the census is not a cost worth paying.”

After the order was issued, the U.S. Census Bureau announced that they would be shutting down on Oct. 15. It has also set that date as the postmark deadline for paper census forms sent by mail, and as the end date for collecting responses through phone calls and door-knocking.

Every ten years, the U.S. Census Bureau conducts a nationwide census in order to provide a comprehensive count of the population with demographic information. This information is used by the government in many ways, including for the apportionment of seats in the U.S. House of Representatives and the allocation of federal funds.

Additional reading:
Supreme Court cases, October term 2020-2021
Supreme Court of the United States
United States Census Bureau
United States Court of Appeals for the Ninth Circuit
Sonia Sotomayor



U.S. Supreme Court to hear four hours of oral argument the week of October 12

The U.S. Supreme Court’s 2020–2021 term begins its second week on October 12, with the court scheduled to hear four hours of oral argument throughout the week. Consistent with the court’s policy in response to the COVID-19 pandemic, all arguments will be made via teleconference with live audio provided.

On October 13, the court will hear two hours of oral argument: one hour in United States v. Briggs (Consolidated with United States v. Collins) and one hour in City of Chicago, Illinois v. Fulton. Briggs originated from the United States Court of Appeals for the Armed Forces and was originally scheduled for argument on March 23, 2020. Fulton originated from the United States Court of Appeals for the 7th Circuit and was originally scheduled for argument on April 20, 2020. The court delayed arguments in both cases due to the coronavirus pandemic.

On October 14, the court will hear an additional two hours of oral argument: one hour in Torres v. Madrid and one hour in Pereida v. Barr. Torres originated from the United States Court of Appeals for the 10th Circuit and Pereida originated from the United States Court of Appeals for the 8th Circuit. Both cases were originally scheduled for argument on March 30, 2020, but were delayed.

These four hours of oral argument will conclude the court’s October sitting. The November sitting begins on November 2 when the court hears oral argument in U.S. Fish and Wildlife Service v. Sierra Club and Salinas v. United States Railroad Retirement Board.

As of October 7, 2020, the court agreed to hear 35 cases during its 2020–2021 term. Of those, 12 were originally scheduled for the 2019–2020 term but were delayed due to the coronavirus pandemic.

Additional reading:



SCOTUS grants review in seven cases for 2020-2021 term

On October 2, 2020, the Supreme Court of the United States (SCOTUS) granted review in seven cases for a total of four hours of oral argument during its October Term for 2020-2021. The cases have not yet been scheduled for argument.

FCC v. Prometheus Radio Project (Consolidated with National Association of Broadcasters v. Prometheus Radio Project)
• The case FCC v. Prometheus Radio Project originated from the U.S. Court of Appeals for the 3rd Circuit and was consolidated with the case National Association of Broadcasters v. Prometheus Radio Project. The consolidated cases concern changes the Federal Communications Commission (FCC) made to media ownership rules and whether the FCC adequately considered the rule changes’ impact on women-owned and minority-owned media.

BP P.L.C. v. Mayor and City Council of Baltimore
• The case BP P.L.C. v. Mayor and City Council of Baltimore originated from the U.S. Court of Appeals for the 4th Circuit. The case concerns the authority of a court of appeals to review issues in removal orders. Justice Samuel Alito recused himself from the case.

Barr v. Dai (Consolidated with Barr v. Alcaraz-Enriquez)
• The case Barr v. Dai originated from the U.S. Court of Appeals for the 9th Circuit and was consolidated with the case Barr v. Alcaraz-Enriquez. The consolidated cases concern the Immigration and Nationality Act (INA), specifically relating to the credibility of an immigrant’s testimony before an immigration judge, the Board of Immigration Appeals, and U.S. Circuit Courts of Appeal.

Brnovich v. Democratic National Committee (Consolidated with Arizona Republican Party v. Democratic National Committee)
• The case Brnovich v. Democratic National Committee originated from the U.S. Court of Appeals for the 9th Circuit and was consolidated with the case Arizona Republican Party v. Democratic National Committee. The cases concern voting policies in Arizona and Section 2 of the Voting Rights Act.

The Supreme Court began hearing cases for the term on October 5, 2020. The court’s yearly term begins on the first Monday in October and lasts until the first Monday in October the following year. The court generally releases the majority of its decisions in mid-June.

As of October 7, 2020, the court had agreed to hear 35 cases during its 2020-2021 term. Of those, 12 were originally scheduled for the 2019-2020 term but were delayed due to the coronavirus pandemic.

Additional reading:



U.S. Supreme Court begins 2020 term on October 5

The U.S. Supreme Court begins its 2020–2021 term on Monday, October 5, after being in recess since July. The court announced it would hear oral arguments via teleconference and would provide live audio of the arguments for its October sitting following the same format that was used during its May sitting in the 2019-2020 term. It made the decision in accordance with public health guidance in response to COVID-19.

During its October sitting, the court will hear 10 hours of oral argument in 12 cases between October 5 and October 14. The cases were originally scheduled for the court’s 2019-2020 term but were postponed due to the coronavirus pandemic.

October 5, 2020

  • Carney v. Adams
  • Texas v. New Mexico

October 6, 2020

  • Rutledge v. Pharmaceutical Care Management Association
  • FNU Tanzin v. Tanvir

October 7, 2020

  • Google LLC v. Oracle America Inc.
  • Ford Motor Company v. Montana Eighth Judicial District Court (Consolidated with Ford Motor Company v. Bandemer)

October 13, 2020

  • United States v. Briggs (Consolidated with United States v. Collins)
  • City of Chicago, Illinois v. Fulton

October 14, 2020

  • Torres v. Madrid
  • Pereida v. Barr

The court’s yearly term begins on the first Monday in October and lasts until the first Monday in October the following year. The court generally releases the majority of its decisions in mid-June.

Additional reading:
Supreme Court of the United States
Supreme Court cases, October term 2019-2020



President Trump announces nomination of Amy Coney Barrett to Supreme Court

President Trump (R) announced his nomination of appellate judge Amy Coney Barrett to the U.S. Supreme Court Saturday to fill the vacancy opened by the death of Associate Justice Ruth Bader Ginsburg.

Barrett is currently a judge on the U.S. Court of Appeals for the 7th Circuit, the federal appellate court with jurisdiction over Illinois, Indiana, and Wisconsin, where she has served since 2017. Her earlier legal experience includes 15 years on the faculty of Notre Dame Law School and a clerkship with then-Associate Justice Antonin Scalia. President Trump considered Barrett to fill the vacancy opened by Anthony Kennedy’s 2018 retirement before nominating Brett Kavanaugh for the spot.

In announcing Barrett’s nomination, President Trump said, “She is a woman of unparalleled achievement, towering intellect, sterling credentials and unyielding loyalty to the Constitution.”

Barrett said in reaction to her nomination, “This evening, I also want to acknowledge you, my fellow Americans. The president has nominated me to serve on the United States Supreme Court, and that institution belongs to all of us. If confirmed, I would not assume that role for the sake of those in my own circle and certainly not of my own sake. I would assume this role to serve you, I would discharge the judicial oath, which requires me to administer justice without respect to persons, do equal right to the poor and rich, and faithfully and impartially discharge my duties under the United States constitution.”

The vacancy was opened by the death of Associate Justice Ruth Bader Ginsburg on Sept. 18. Ginsburg, 87, died of complications from metastatic pancreatic cancer. She was appointed to the Supreme Court by President Bill Clinton (D) in 1993 to fill the vacancy opened by Byron White’s retirement. At the time of her death, Ginsburg was among four members of the nine-member court appointed by a Democratic president.

Barrett is President Trump’s third appointment to the court. He earlier appointed Neil Gorsuch to fill the vacancy caused by Antonin Scalia’s death in 2016 and Brett Kavanaugh to fill the vacancy caused by Anthony Kennedy’s retirement in 2018.

Barrett’s nomination will advance to the Senate Judiciary Committee, which will conduct an investigation involving background checks, one-on-one interviews with committee members, and a final confirmation hearing. Should the committee approve of Barrett’s nomination, she will advance to a vote before the full Senate. Recent nominees to the U.S. Supreme Court have been confirmed by narrow margins. Neil Gorsuch won confirmation by a 54-45 vote, while Brett Kavanaugh was confirmed by a 50-48 vote.

Additional reading:
https://ballotpedia.org/Supreme_Court_vacancy,_2020
https://ballotpedia.org/Process_to_fill_the_vacated_seat_of_Justice_Ruth_Bader_Ginsburg
https://ballotpedia.org/Supreme_Court_of_the_United_States
https://ballotpedia.org/Ruth_Bader_Ginsburg



New York Times, CNN report Trump selects Amy Coney Barrett for Supreme Court

President Trump (R) will nominate appellate judge Amy Coney Barrett to the U.S. Supreme Court Saturday to fill the vacancy opened by the death of Associate Justice Ruth Bader Ginsburg, according to CNN and the New York Times.

Barrett is currently a judge on the U.S. Court of Appeals for the 7th Circuit, the federal appellate court with jurisdiction over Illinois, Indiana, and Wisconsin, where she has served since 2017. Her earlier legal experience includes 15 years on the faculty of Notre Dame Law School and a clerkship with then-Associate Justice Antonin Scalia. President Trump considered Barrett to fill the vacancy opened by Anthony Kennedy’s 2018 retirement before nominating Brett Kavanaugh for the spot.

The vacancy was opened by the death of Associate Justice Ruth Bader Ginsburg on Sept. 18. Ginsburg, 87, died of complications from metastatic pancreatic cancer. She was appointed to the Supreme Court by President Bill Clinton (D) in 1993 to fill the vacancy opened by Byron White’s retirement. At the time of her death, Ginsburg was among four members of the nine-member court appointed by a Democratic president.

Barrett would be President Trump’s third appointment to the court. He earlier appointed Neil Gorsuch to fill the vacancy caused by Antonin Scalia’s death in 2016 and Brett Kavanaugh to fill the vacancy caused by Anthony Kennedy’s retirement in 2018.

The nomination will advance to the Senate Judiciary Committee, which will conduct an investigation involving background checks, one-on-one interviews with committee members, and a final confirmation hearing. Should the committee approve of the nominee, she will advance to a vote before the full Senate. Recent nominees to the U.S. Supreme Court have been confirmed by narrow margins. Neil Gorsuch won confirmation by a 54-45 vote, while Brett Kavanaugh was confirmed by a 50-48 vote.

Additional reading:



Supreme Court Justice Ruth Bader Ginsburg dies

United States Supreme Court Justice Ruth Bader Ginsburg died on Friday, September 18, at the age of 87. Ginsburg was nominated to the Supreme Court by President Bill Clinton and confirmed to the court in 1993. She was the second woman to ever serve on the Supreme Court.

She served on the United States Court of Appeals for the District of Columbia Circuit from 1980 to 1993. She began her legal career in academia, teaching at Rutgers University Law School and Columbia Law School, in addition to directing the Women’s Rights Project of the American Civil Liberties Union.

Article II, Section 2 of the U.S. Constitution gives the president the authority to nominate Supreme Court justices, and they are appointed with the advice and consent of the United States Senate.

The average vacancy length on the Supreme Court since 1962—when defined as the length of time elapsed between a Justice’s departure date and the swearing-in of their successor—is 88 days. Four of these vacancies lasted for only a few hours each; the successor was sworn in the same day the retiring Justice officially left office. The longest vacancy under this definition was 422 days, following the death of Justice Antonin Scalia.

 



U.S. Supreme Court releases December calendar

The U.S. Supreme Court has released its December argument calendar for the 2020-2021 term. The court will hear 10 hours of oral argument in 12 cases between November 30 and December 9.

So far, the court has agreed to hear 31 cases during its 2020-2021 term.

November 30, 2020:
Van Buren v. United States
Edwards v. Vannoy

December 1, 2020:
Nestlé USA v. Doe I (Consolidated _Cargill v. Doe I)
CIC Services v. Internal Revenue Service

December 2, 2020:
Department of Justice v. House Committee on the Judiciary

December 7, 2020:
Republic of Hungary v. Simon
Federal Republic of Germany v. Philipp

December 8, 2020:
Facebook v. Duguid
Henry Schein Inc. v. Archer and White Sales Inc.

December 9, 2020
Collins v. Mnuchin (Consolidated with Mnuchin v. Collins)
https://ballotpedia.org/Supreme_Court_cases,_October_term_2020-2021#December_sitting



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