Washington DC

Date: September 20, 2013 Last Edit: October 14, 2016

American Farm Bureau Federation v. EPA – Regulatory Reform
8th Circuit Federal Court of Appeal – 5/1/15

In this case, the American Farm Bureau Federation and National Pork Producers Council challenge the disclosure of sensitive information about farmers and ranchers. EPA proposes to release information documenting the home addresses, telephone numbers, email addresses, GPS coordinates, and other information about farms and ranches throughout the country. This proposed disclosure was in response to a Freedom of Information Act Request from environmental activists. NFIB Small Business Legal Center filed an amicus brief arguing that individuals retain their federally protected privacy rights, even when engaged in commercial activities. Accordingly, NFIB Legal Center argues that small business owners are entitled to challenge the disclosure of information about their business because such information commonly reveals personal information about the owners.

 

American Farm Bureau v. U.S. EPA – Property Rights   

U.S. Supreme Court – cert petition

The Court has been asked to once again review the scope of EPA’s power under the Clean Water Act. Here the power EPA has asserted in the Chesapeake Bay watershed, under the guise of a “total maximum daily load,” gives it the power to restrict the use of lands for farming, harvesting trees, building homes, or commercial development—regardless of economic impact, regardless of any proximity to “waters of the U.S.”, and regardless of the views and preferences of state and local governments. It amounts to federal super-zoning authority. It’s also far beyond EPA’s statutory authority, and the level of deference the lower courts have shown to EPA is unprecedented.


American Independence Mines v. U.S. Department of Agriculture
 – Environment

U.S. Supreme Court – cert petition

Plaintiffs challenged USDA’s NEPA assessment on a motor vehicle rule issued by the agency. The district court dismissed the case for lack of prudential standing under Ninth Circuit precedent holding that “purely” economic interests are legally insufficient to confer prudential standing in the NEPA. Petitioners argue that excluding those seeking to protect economic interests from challenging an agency’s compliance with the NEPA sharply conflicts with decisions of the Supreme Court and the Eighth Circuit on an important, recurring issue of federal law.

  

American Trucking Assoc. v. Port of Los Angeles – Regulatory and Commerce

U.S. Supreme Court

The case will determine whether the Port Authority of Los Angeles is violating the Federal Aviation Administration Authorization Act (FAAAA) by imposing rules and conditions upon trucks entering the Port of Los Angeles. NFIB’s brief argues that the Port of Los Angeles’ rules reduce the business opportunities of motor carriers and violate the Commerce Clause.

 

American Municipal Power v. EPA  – Regulatory (Clean Air Act regulation of boilers) 

U.S. Supreme Court – cert petition

NFIB Legal Center joined in urging the U.S. Supreme Court to grant review of an Environmental Protection Agency regulation that required impossible compliance standard for industrial boilers—even when malfunctioning. The brief argued that EPA’s draconian rules cannot be squared with the text of the Clean Air Act.

Status: PENDING. Amicus brief filed 4/25/17.

 

Arkansas Fish & Game Commission v. U.S. – Property Rights

U.S. Court of Appeals for the Federal Circuit

In 2012, the U.S. Supreme Court ruled that the Commission might be entitled to compensation under the Fifth Amendment for damages caused to their property as the result of intermittent government-induced flooding. Historically, property owners face significant legal hurdles when seeking compensation for property damage caused by short-term government policies and projects. The case was remanded to the U.S. Court of Appeals for a determination as to whether compensation is due.

Army Corps of Engineers v. Hawkes – Regulatory Reform

U.S. Supreme Court

The Clean Water Act (CWA) prohibits dredging and filling activities within areas deemed jurisdictional. Landowners face civil penalties of $37,500 for negligent violations, and up to $50,000 in penalties or jail for knowing violations. The difficulty is that it is often difficult to say whether one’s land is covered by the CWA. But once Army Corps of Engineers definitively determines that a given property is subject to CWA restrictions, NFIB maintains that a landowner should have a right to seek judicial review if they disagree. In this case, a small business sought to challenge the Corps’ official jurisdictional assessment in court, but Army Corps argues that they have no right to go to court yet. Instead, Army Corps argues that the landowner must apply for a federal permit—which is exorbitantly expensive and only required by law if the Corps is correct in asserting jurisdiction. In our brief to the Supreme Court, NFIB Small Business Legal Center emphasized that due process requires that a landowner be allowed an immediate right to contest Army Corp’s assertion of regulatory authority.  

Status: VICTORY! Amicus brief filed 3/2/16. SCOTUS affirmed on 5/31/16.

 

Arrigoni v. Town of Durham – Property Rights

U.S. Supreme Court 

In 1985 the U.S. Supreme Court held that a property owner may not initiate an inverse condemnation claim seeking just compensation for the taking of property against state or local government unless the owner has first pursued state remedies by suing for just compensation in state court. But over the past 30 years it’s become clear that this amounts to an effective bar on bringing takings claims in federal court. Accordingly, NFIB Small Business Legal Center is asking the Supreme Court to take this case in order to reconsider its initial decision in Williamson County Regional Planning Commission v. Hamilton Bank.

Status: PENDING. Amicus briefs filed on 12/18/15.

 

Banner Healthcare v. NLRB – Labor

U.S. Court of Appeals for the D.C. Circuit

The D.C. Circuit is being asked to determine whether an NLRA violation occurs when an employer asks employees to refrain from discussing ongoing internal investigations. Here the Board found that the employer violated the NLRA by asking an employee who was the subject of an internal investigation to refrain from discussing the matter while the employer conducted the investigation. The 2-1 decision is another in a recent trend of decisions requiring nearly all private-sector employers to consider carefully how they interact with their employees, regardless of whether those employees are represented by a union.  Member Brian Hayes dissented.

 

Status: PENDING. Amicus brief filed 1/24/16.

 

Bettie Page Clothing v. NLRB – Challenge to NRLB Social Media Policy
U.S. Court of Appeals for the Ninth Circuit

In April 2013, the National Labor Relations Board held that the Bettie Page clothing company unlawfully fired employees who used Facebook to discuss complaints about their supervisor’s conduct and other work-related concerns, rejecting the employer’s claim it was tricked into firing the workers.

 

Bridgestone Retail Operations LLC v. Brown  – Labor and Employment
SCOTUS – 3/26/15

The Federal Arbitration Act was enacted by Congress in order to ensure that business owners can resolve disputes through binding arbitration agreements. But the California Supreme Court holds that arbitration agreements cannot inhibit an employee from bringing a lawsuit under the State’s Private Attorney General Act. We are asking the U.S. Supreme Court to review because we are concerned this rule enables states to circumvent the FAA.

 

Cintas v. EEOC – Employment Discrimination

U.S. Supreme Court

The Supreme Court will review a Sixth Circuit decision holding that the Equal Employment Opportunity Commission (EEOC) can pursue a pattern-or-practice claim under Section 706 of Title VII of the Civil Rights Act of 1964 (Title VII).

 

CNN v. NLRB – Labor

U.S. Court of Appeals for the D.C. Circuit

 This appeal concerns the labor board’s determination that CNN and unionized subcontractor Team Video Services were join employers and that CNN violated the FLRA by terminating its contracting relationship with TVS. A three-member NLRB panel ordered CNN to rehire about 100 union workers fired in a 2003 reorganization and pay back wages to about 200 individuals who stayed with the network. CNN has appealed the NLRB’s determination that joint employer status existed between CNN and TVS. The case is CNN America Inc., case numbers cases 05–CA– 031828 and 05–CA–033125 at the National Labor Relations Board. The DC Circuit case is CNN America, Inc. v. NLRB, case number 14-1180.

Status: PENDING. Amicus brief filed in support of CNN on 2/2/16.

 

CRST v. EEOC – Legal Reform

U.S. Supreme Court

In this case the EEOC initiated legal action against a business without complying with its statutory obligation to reasonably investigate the alleged violation and to conciliate before filing suit. Accordingly, the defendant company succeeded in obtaining an order dismissing the case on procedural grounds. The issue presented at this stage is whether the EEOC should be required to pay attorney’s fees. NFIB Small Business Legal Center filed in support of the employer, arguing that attorney’s fees should be awarded to a prevailing business defendant regardless of whether a case is dismissed on procedural grounds or resolved on the merits.

 

Status: VICTORY! Amicus brief filed 1/26/16. SCOTUS reversed 5/28/16.

 

Department of Transportation v. Association of American Railroads – Regulatory
U.S. Supreme Court

The Court will decide whether Congress unconstitutionally granted Amtrak regulatory authority over its priority of service among railroads.  Such a delegation, according to the D.C. Circuit, violates a “cousin” of the constitutional non-delegation doctrine. 

 

Dibbs v. Hillsborough County, Florida – Property Rights

U.S. Supreme Court

In this case a small business developer requested a variance to allow a contemplated development. The County refused to grant that request, though it had granted similar requests from landowners in other parts of the County. And this was just one of a series of events in which the developer believed that he had been treated differently than similarly situated landowners. But when he alleged a violation of the Equal Protection Clause the District Court and the 11th Circuit Court of Appeals rejected his class-of-one theory because the landowners whom he said were given more favorable treatment were in different districts. In so holding the Court ruled that a landowner must be in the very same zoning district as a comparator when alleging a class-of-one violation; however, this is an impossible standard in many cases. NFIB Small Business Legal Center filed in this case to urge the Court to grant certiorari in order to clarify the proper standard for determining when landowners are sufficiently similar to proceed with a class-of-one claim. The brief argued that landowners in different districts should nonetheless be viewed as similarly situated if in fact they are subject to similar restrictions.  

DR Horton — Employment Arbitration Agreements
U.S. Court of Appeals for the Fifth Circuit

 This appeal involves a dispute over whether employers can require employees to agree to resolve employment disputes through arbitration, rather than through the courts. The NLRB contends that it is an unfair labor practice for an employment contract to contain a waiver of class action rights and to instead provide that disputes shall be resolved individually through arbitration. NFIB has defended employment arbitration agreements, which allow employers to resolve disputes expeditiously and without court costs.

 

DuPont v. Smiley – Employment

U.S. Supreme Court – cert petition

In this case, the court below ruled against an employer on a question of wage and hour law under the Fair Labor Standards Act—not because it determined that the plaintiffs had advanced the strongest legal argument, but simply because the Department of Labor filed an amicus brief on behalf of the employees. But we argue that it is improper for the courts to automatically defer to a federal agency’s position—especially where, as in this case, advanced for the first time in an amicus brief. Accordingly, NFIB Legal Center is urging the Supreme Court to take this case to reconsider the so-called “Skidmore deference” doctrine. 

Status: PENIDNG. Amicus brief filed 5/3/17.

 

EEOC v. Abecrombie & Fitch – Religious discrimination
U.S. Supreme Court – 1/28/15

NFIB filed a brief in support of Abercrombie, the clothing retailer, who is accused of discrimination for declining to hire an applicant that claimed it was due to her wearing religious garb. The plaintiff is alleging discrimination even though she never made clear that she would need an exemption from the company’s dress code. 

 

EEOC v. Mach Mining – Employment
U.S. Supreme Court

The Court will consider whether the EEOC’s compliance with pre-suit administrative requirements, including conciliation, is subject to judicial review and, if so, what level of review is warranted. EEOC sued Mach Mining alleging that it engaged in unlawful disparate impact and pattern-or-practice discrimination on the basis of sex in its hiring for non-office positions. In its answer, Mach asserted that the EEOC failed to satisfy its statutory duty to conciliate prior to filing suit.

 

Friedrichs v. CA Teachers Assoc. – Labor & Employment

U.S. Supreme Court

The Court has been asked to decide whether Abood v. Detroit Bd. of Ed. should be overruled and public-sector “agency shop” arrangements invalidated under the First Amendment; and whether it violates the First Amendment to require that public employees affirmatively object to subsidizing nonchargeable speech by public-sector unions, rather than requiring that employees affirmatively consent to subsidizing such speech.

Flytenow v. FAA – Regulatory Reform

U.S. Supreme Court – cert petition

This case concerns an obscure federal regulation that prohibits non-commercial pilots from holding themselves out to the public as willing to transport passengers in exchange for compensation. The Federal Aviation Administration recently interpreted this statute in a new manner—so as to close down a website that connected non-commercial pilots with individuals who might be interested in tagging along and sharing costs. But controversially, FAA argued that it deserved deference when interpreting its own regulation—meaning that the reviewing judge was bound by FAA’s interpretation, and was not free to consider whether the terms in question had a distinct meaning at law. Specifically, the essential language at issue concerned a common law term, which is defined in a well developed body of existing law. Accordingly, NFIB Legal Center argues in support of this petition to the Supreme Court that the Court should reconsider the Auer doctrine—which agencies all too frequently rely on in asserting carte blanche authority to interpret (intentionally crafted) vague or ambiguous regulations.

Status: PENDING. Amicus brief filed 7/25/16. 

 

Gallo Co. et. al. v. Commissioner of Department of Environmental Protection – Property Rights
U.S. Supreme Court 

In this case beverage distributors challenged amendments to Connecticut’s Bottle Bill. In 1980 the State enacted the original Bottle Bill, which required distributors to pay consumers a refund of a few cents for each bottle that was returned. In the midst of a financial crisis in 2008, the State amended the Bottle Bill to require distributors to set aside money for these refunds in a separate interest bearing account. Then in 2009 the State amended the Bottle Bill again to require distributors to hand-over unpaid refunds to the Department of Environmental Protection on a quarterly basis. Before that it was settled law that the distributors had property rights in the unpaid refunds, but the Connecticut Supreme Court changed that in a ruling upholding the 2009 amendments, and redefining property rights in the State. Petitioners contend that the amendments constituted a taking, and that the State Supreme Court is complicit in the taking. 

Green v. Brennan. – Labor & Employment

U.S. Supreme Court

The United States Supreme Court will decide whether federal employment discrimination law allows workers to file constructive discharge claims well after they have resigned, or whether the clock should start running when the alleged abuses are happening. 

 

Grocery Manufacturers Association v. EPA – Regulatory

U.S. Supreme Court – cert petition

Several industry groups sued EPA over an agency decision that allowed for a higher content of ethanol in gasoline. The D.C. Circuit dismissed the claim finding none of the trade groups had standing,

 

Halbig v. Sebelius – Access to Courts
Federal Court of Appeal for D.C. Circuit

This is one of the many lawsuits challenging regulations promulgated under the Affordable Care Act (ACA); however, NFIB Legal Center takes no position as to the merits of plaintiff’s claims that the Internal Revenue Service’s regulations are inconsistent with the ACA. NFIB Legal Center limited its amicus to supporting only the employer-appellants who were denied the opportunity to raise their legal arguments on the assumption that the Anti-Injunction Act bars the court from considering a challenge to a “tax” until the tax has been paid. The problem—as we set forth in our brief—is that the court erred in calling the challenged regulations “taxes.” Instead they should have been viewed as regulatory penalties because they were intended to deter certain conduct. As we explained in our filing, the small business community is concerned about the federal courts invoking the Anti-Injunction Act to prevent businesses from contesting regulations. If the Court is too liberal in labeling “penalties” as “taxes,” small businesses may find it difficult to get a day in court. This is because a requirement to pay a penalty before challenging it in court may make it impossible for the business to afford legal counsel.  

 

Harris v. Quinn – Forced Unionization of IL Healthcare Providers – VICTORY
U.S. Supreme Court (originated in IL)

The State of Illinois operates Medicaid-waiver programs that pay for in-home personal care for disabled individuals. The individual “providers” are selected and employed by the persons with disabilities or their guardians and are often relatives of the disabled persons. Illinois is compelling these providers to financially support the SEIU as their exclusive representative for bargaining with the State over its Medicaid reimbursement rates and benefits for personal care. 
Plaintiffs are providers who assert that by compelling them to associate with an organization to petition the State for more benefits, the State is violating their rights to free expressive association under the First Amendment.

 

Hillcrest Properties v. Pasco County – Property Rights
United States Supreme Court – Petition for certiorari filed (Case arises from Florida)

In this case a property owner advances a facial due process challenge to an ordinance that plainly violates the Takings Clause—in requiring landowners to dedicate land, in the footprint of a planned highway, as a condition of getting a permit approval. After prevailing in the district court, the 11th Circuit reversed, holding that the claim was barred by the statute of limitations because it was brought a few years after the ordinance was enacted. Our amicus brief urges the Supreme Court to take the case in order to make clear that a facial challenge may be advanced at any point because the constitutional injury occurs not with enactment, but with enforcement of the ordinance.

 

Horne v. USDA – Property Rights
U.S. Supreme Court – cert petition and merits (2012, 2013)
U.S. Supreme Court – cert petition (2014)

Under the Agricultural Marketing Agreement Act of 1937, raisin growers must turn over a substantial portion of their crop (sometimes reaching percentages as high as 30 or 47 percent of the annual crop) for below-market or no compensation in exchange for the “privilege” of selling the remainder on the open market. The Ninth Circuit denied growers the right to appropriately contest monetary fines imposed on the growers who allegedly failed to comply with the set-aside.

 

Ilagan v. Ungacta – Kelo Revisited

U.S. Supreme Court – cert petition

Since Kelo was decided in 2005, the lower courts have been utterly confused as to what constitutes an unconstitutional taking. In this case, the Supreme Court of Guam upheld that the taking of the Ilagan family’s property, despite the fact that the taking benefited the mayor of the city. Petitioners argue that this taking goes beyond what was allowed in Kelo. The amicus brief encouraged the Supreme Court to take up this case both to resolve the pretext question and to reconsider Kelo.

 

Kagan v. New Orleans – Free Speech Rights 
U.S. Supreme Court – cert petition

The City of New Orleans requires tour guides to obtain a license when speaking on points of interest in the city. We argue that this constitutes a subject matter restriction, which is reviewed under strict scrutiny. Since the licensing requirement only applies when individuals charge a fee for speaking on points of interest in the city, the Legal Center’s brief argues that the City is improperly treating commercial actors as second-class citizens—with lesser free speech rights than ordinary citizens. Accordingly, our brief encourages the Supreme Court to take the case because individuals to not surrender their constitutional rights upon going into business.

Kerr v. Hickenlooper – Defending Colorado’s TABOR

U.S. Court of Appeals for the Tenth Circuit

The Taxpayer Bill of Rights, known by the acronym TABOR, requires a public referendum on tax increases and tightly limits spending. Plaintiffs are challenging the measure on the grounds that it unfairly restricts the legislature from doing its job. NFIB asserts that overturning TABOR would open the floodgates for litigation against voter-enacted spending controls around the country, and undermine Colorado voters’ decision to keep government spending in check.


Kentner v. City of Sanibel
 – Property Rights
U.S. Supreme Court – cert petition

In this case the City of Sanibel, Florida enacted an ordinance prohibiting new docks along the coast. The stated purpose was to protect sea grass, but there is no exception that might allow for the construction of docks on properties that do not contain sea grass, nor any allowance for designs that might avoid damage to sea grass. Accordingly, there does not appear to be any factual justification for the ban on new docks. Nonetheless, the Federal Court of Appeal for the Eleventh Circuit upheld the City’s ordinance against a constitutional challenge, holding that the Due Process Clause of the Fourteenth Amendment does not protect property rights. Because this is a wild proposition—in conflict with a long-line of Supreme Court cases—NFIB Small Business Legal Center is asking the Supreme Court to take the case to reaffirm that property owners are protected from arbitrary and unreasonable confiscations or restrictions of property. As we argued in our brief, to withstand a constitutional challenge, there must be at least some factual justification for an abrogation of property rights.

 

Kent Recycling v. Army Corps of Engineers – Regulatory Reform
U.S. Supreme Court – cert petition

In this case the Fifth Circuit Court of Appeal held that a landowner does not have standing to pursue a challenge Army Corps or EPA’s assertion of Clean Water Act jurisdiction over their property. Specifically, the Court held that the only way to bring such a challenge a CWA jurisdictional determination is to either (a) apply for a permit that the owner does not believe is needed, and to appeal a denial of that application; or (b) proceed with development plans without a permit, at which point the owner could raise a jurisdictional challenge as an affirmative defense to a federal enforcement action. In our amicus brief, we urge the Supreme Court to take the case because small business owners have a right to challenge any final agency action that has an immediate affect on the business’ rights. As we argue, a decision to assert CWA jurisdiction over a specific property has immediate consequences because it means the owner cannot make any use of the property without obtaining a costly permit.

 

Kurtz v. Verizon – Property Rights
U.S. Supreme Court – cert petition

In this case property owners in New York advanced a due process claim in challenge to Verizon plans to install telecommunications equipment on their buildings. They sought to bring the claim in federal court, but the Second Circuit held that due process claims must be brought in state court, if the owner could potentially advance a takings claim. Accordingly, the NFIB Legal Center filed a brief asking the Supreme Court to take this case to ensure that small business owners have an opportunity to vindicate their property rights in federal court.

 

Lalli v. GNC – Labor & Employment

U.S. Court of Appeals for the First Circuit

NFIB’s amicus brief argues that when an employer pays an employee a fixed salary for variable hours (a fluctuating workweek), the employer is also permitted to pay the employee a bonus (whether based on hours, performance, or any other metric), and to calculate overtime based on the “wages divided by hours equals regular rate.”

 

Lawson v. FMR – Sarbanes-Oxley Application to Privately-Held Companies
U.S. Supreme Court

In this case the Supreme Court will have to decide whether an employee of a privately held contractor or subcontractor of a public company is protected from retaliation by Section 806 of the Sarbanes-Oxley Act. NFIB’s amicus brief argues that the Sarbanes-Oxley Act was never intended to apply to privately held companies and that imposing the Sarbanes-Oxley whistleblower protections on private companies would add unbearable costs and regulations to small businesses.  

 

Lompe v. Sunridge Partners LLC – Legal Reform
U.S. Court of Appeals for the Tenth Circuit

This case involves two issues at the core of two critical due process considerations: (1) diligent post-trial evaluation by the district judge of the punitive damages award in light of the nature of the conduct, the injuries, and the other factors recognized to place meaningful limits on a jury’s power to punish a civil defendant. The district judge in this case let the jury use worldwide wealth evidence to justify its $25.5 million award, and then essentially gave complete deference to the jury’s finding without considering due process violations

Macy’s v. United Commercial Food Workers – Bargaining Unit Scope

NLRB

The NLRB’s Regional Director applied the unit determination standard announced in Specialty Healthcare to find the employees working in the fragrance department in a Macy’s department store an appropriate unit.  The year prior, the union had failed to organize a wall-to-wall unit in the same store. The brief attacks the micro-unit standard applied by the Board.

 

Mehaffy v. U.S. – Property Rights

U.S. Supreme Court – cert petition

The Court has been asked to reverse a Federal Circuit decision that prevents landowners from seeking compensation for regulations that are too burdensome when they have acquired a property after enactment of a land use restriction. NFIB’s amicus brief argues that a rule barring a post-enactment purchaser from bringing a lawsuit disadvantages small businesses, landowners and the elderly.

 

Myers v. Crouse-Hinds – Legal Reform

Indiana Supreme Court

NFIB’s amicus brief argued that Indiana’s well-established statute of repose jurisprudence is constitutionally correct, and enhances the ability of Indiana manufacturers and other businesses to meet the needs of the millions of Hoosiers and other consumers they serve.

 

MHC Financing v. City of San Rafael – Property Rights
U.S. Supreme Court 

In 1999, San Rafael enacted an amendment eliminating owners’ ability to increase rents to keep up with inflation. MHC then brought suit in 2000, alleging claims under the Takings Clause of the Fifth Amendment, arguing the government must provide compensation when taking property.  The district court ruled in favor of MHC on its claims that the city had affected both a regulatory taking and a private taking. The Ninth Circuit reversed the district court’s ruling, finding that since one rent regulation existed before MHC bought the property, it was not entitled to bring claims regarding any new regulations.

 

Michigan Building and Construction Trades Council v. Snyder – PLA Agreements

U.S. Court of Appeals for the Sixth Circuit

In July 2011, Governor Snyder signed the “Michigan Fair & Open Competition in Governmental Construction Act,” which prohibits government entities from awarding contracts with Project Labor Agreements (PLAs). Michigan Building & Construction Trades Council, AFL-CIO sued to block the law. After the trial court struck down the first law, the legislature passed an amended law to correct perceived deficiencies. The trial court struck down the amended law. A second appeal followed.

 

Michigan v. EPA – Regulatory Reform
United States Supreme Court –1/27/15 

This Clean Air Act case, asks whether EPA improperly imposed regulatory burdens—estimated to cost industry over $10 billion a year—without adequately considering whether the regulation could be justified in light of the minimal benefits to the public. NFIB Legal Center argued that such regulations are only necessary and appropriate where there is clear and convincing evidence that public health benefits outweigh the burdens.


Murr v. State of Wisconsin – Property Rights

U.S. Supreme Court – cert petition

In this case NFIB Small Business Legal Center joins with the National Association of Homebuilders and the California Cattlemen’s Association in asking the U.S. Supreme Court to take up an important issue of concern to many small business owners who own adjoining parcels of land. In this case Wisconsin courts held that a landowner can be denied the right to build anything on an adjacent parcel of land without incurring an obligation to pay for the taking of the owner’s property rights. The Wisconsin courts inappropriately treated two separate lots as a single property to defeat the owner’s takings claim. Accordingly, the case is concerning for small business landowners who may be interested in expanding their operations on adjacent lots, or interested in investing in other development opportunities near their existing facilities.

 

Murray Energy v. EPA – Regulatory
D.C. Court of Appeals

NFIB intervened in a case challenging EPA’s authority to promulgate the greenhouse gas rules for existing stationary sources under section 111(d) of the Clean Air Act.  Murray Energy Corporation filed 2 cases and a group of 12 states (led by West Virginia) filed a third challenge to EPA’s authority to promulgate the Section 111(d) Existing Source Performance Standard.  The three cases present substantially the same legal argument—that EPA is precluded from proceeding to regulate sources under Section 111(d) that are already subject to regulation under Section 112. The court has agreed to hear all three cases on the same day.

 

Nestle-Dreyer v. NLRB – Micro union challenge
U.S. Court of Appeals for the Fourth Circuit

On December 28, 2011, the NLRB upheld a regional director’s unit determination of maintenance employees at Nestle Dreyer’s Ice Cream plant.  The regional director’s decision was based on the micro-union standard from Specialty Healthcare. Nestle-Dreyer lost the election and refused to bargain. On May 18, the Board issued a decision finding the company committed a ULP by doing so. Nestle Dryer has appealed the ULP decision to the U.S. Court of Appeals for the Fourth Circuit challenging the micro union standard.


Nertavich v. PPL – Legal Reform         

Pennsylvania Supreme Court

In this case the Pennsylvania Supreme Court has been asked to hold property owners liable for negligent acts of their employees, without regard to whether the property owner has exerted any control over the contractor’s work. NFIB Legal Center joined with the U.S. Chamber of Commerce in this filing, arguing that the Court should affirm the historic common law rule that a landowner is not liable for the actions of a contractor except in the event that he or she directs the contractor to take specific actions that directly cause injury to another.

NLRB v. Noel Canning – Labor – Executive Powers – VICTORY

U.S. Court of Appeals for the D.C. Circuit
U.S. Supreme Court

Noel Canning has challenged an NLRB decision requiring employer to negotiate in good faith. In doing so, the court has been asked to invalidate the Board’s recess appointments. NFIB filed in support of Noel Canning’s arguments challenging President Obama’s three recess appointments to the NLRB in January 2012.

 

Perez v. Mortgage Bankers Association – Regulatory
U.S. Supreme Court – Merits

Under the Obama Administration, the U.S. Department of Labor (DOL) announced a new guidance on exempt v. non-exempt employees under the FLSA. Controversially, the guidance asserts that employees assisting homebuyers in procuring loans are non-exempt employees. This comes after the Bush Administration’s DOL had definitively said that these employees were exempt under the FLSA. Accordingly, the Mortgage Bankers Association (MBA) filed suit in challenge to the Obama Administration’s new interpretation. NFIB Legal Center filed in support of MBA—arguing that agencies should be required to go through notice-and-comment procedures before changing their position.

 

Peri & Sons v. Rivera – Regulatory
U.S. Supreme Court 

Peri & Sons Farms hired farmworkers through the United States Department of Labor’s H-2A program. The H-2A farmworkers claimed they had expenses related to their employment with Peri & Sons including hiring/recruitment fees, H-2A visas, and lodging. Peri & Sons Farms argued that that reimbursement was not necessary because the expenses were incurred for the benefit of the employee and not the employer. However, the Ninth Circuit deferred to regulations the DOL issued in 2009 requiring employers of H-2A guest workers to reimburse the workers for most travel and immigration expenses within the first week of their employment. The brief argues that this rule is a scam which creates perverse incentives for agencies to issue ambiguous regulations, and that constitutional principles require courts—not federal agencies—to determine what the law actually is.  

Public Citizen v. Trump – Regulatory (de-regulation) 
DC Circuit Federal Court of Appeals

A coalition of progressive organizations brought suit in the Federal District Court for the District of Columbia, seeking an injunction to prevent federal agencies from complying with President Trump’s Executive Order, requiring the elimination of two burdensome regulations for every newly promulgated regulation. On appeal to the DC Circuit, NFIB joined with other industry groups in defending the President’s “two out, one in” order. NFIB’s amicus brief argued that the Executive Order constituted a rational policy, reasonably tailored to address the problem of overregulation besetting our nation.
Status: PENDING. Amicus brief filed 6/12/17.


Rocky Mountain Farmers Union v. ARB
 – Regulatory
U.S. Supreme Court 

California’s Air Resources Board promulgated regulations under AB 32 that impose standards on gasoline sold in California. The goal is to reduce greenhouse gas emissions by requiring that fuel sold in-state must be created through a process minimizing emissions; however, this effectively means that California is regulating out-of-state conduct. Accordingly, several out-of-state energy producers brought suit, arguing that California’s fuel standard regulations violate the Dormant Commerce Clause. The Ninth Circuit refused to strike down the regulations. Now the NFIB Legal Center has joined with other concerned groups in asking the Supreme Court to take the case because the Ninth Circuit’s opinion opens the door for states to regulate out-of-state conduct.


Sisson v. RadioShack
 – Wage and Hour
U.S. Court of Appeals for the Sixth Circuit

The appeal concerns the Department of Labor’s determination that employers who pay bonus, premium pay, or commission in addition to a fixed salary are not entitled to use the fluctuating workweek method of calculating overtime compensation. DOL’s interpretation is a reversal from previous holdings.

 

Stewart Jasper Orchards v. Jewell & State Water Contractors v. Jewell  – Regulatory
Supreme Court Petition for Certiorari

Here various state water contractors and small businesses have challenged a Fish and Wildlife Service (FWS) determination that the “Delta Smelt” (a one inch fish) is endangered and that, in order to protect its critical habitat, the State must impose mandatory water restrictions on farmers. These restrictions have exacerbated the effects of the drought and have imposed a serious hardship on communities in California’s central valley. Accordingly, the parties argue that before imposing these restrictions, FWS should have at least considered the severe economic impacts it would cause. But the Ninth Circuit held that FWS had no obligation to consider economic impacts on the private sector. Accordingly, NFIB Small Business Legal Center is now urging the Supreme Court to hear the case. Specifically, we argue that the time has come to overturn TVA v. Hill, a case from 1970s, which held that endangered species must be protected “whatever the cost.” We maintain that subsequent congressional amendments make clear that Congress wants FWS to weigh environmental benefits against adverse economic impacts.  

 

Spokeo Inc. v. Robins – Legal Reform

U.S. Supreme Court

Under Article III of the U.S. Constitution, a plaintiff must allege that he or she has suffered an “injury-in-fact” to establish standing to sue in federal court. In this case, the Court will decide whether Congress may confer Article III standing by authorizing a private right of action based on a bare violation of a federal statute, even though the plaintiff has not suffered any concrete harm.

SW General v. NLRB  – Regulatory Reform

U.S. Supreme Court – cert petition

The Supreme Court granted certiorari to determine the limitations imposed on the President’s prerogative to fill temporary vacancies for high level positions under the Federal Vacancies Reform Act (FVRA); specifically, the Court will decide whether the FVRA prohibits the temporary appointment of a person who is also being nominated as the permanent nominee—where that person has neither served as a first assistant for that post, nor been previously confirmed by the Senate. NFIB filed an amicus brief on the merits in support of the defendant-appellee—a company facing an action before the NLRB. While affirmance of the DC Circuit’s opinion will enforce a strict construction of the FVRA that should enure to the benefit of small business facing enforcement actions under an illegal appointment, the NFIB SBLC brief focused on a more fundamental question of administrative law, which is central to this case: Whether and to what extent federal courts should defer to a statutory interpretation pronounced in an agency memorandum without meaningful textual analysis. NFIB argues that such informal guidance should only be given weight to the extent it may be deemed persuasive, and that a guidance document or memorandum cannot be deemed persuasive in the absence of textually grounded analysis.

Status: PENDING. Amicus brief filed 9/26/16. 

 

Thyssenkrup Waupaca Foundries v. DeKeyser – Employment
U.S. Supreme Court – cert petition (Wisconsin district court)

This case concerns whether donning and doffing is compensable if the employer encouraged, but did not require, its iron foundry employees to shower and change clothes before and after their shifts. Employees sued for unpaid overtime, and the district court granted summary judgment, concluding that “the fact that OSHA has promulgated a standard for [hazardous material] exposure that does not mandate changing clothes and showering after work requires the conclusion that such activities are not required by the nature of the work.” NFIB filed an amicus in support of the employer’s cert petition.

 

Tyson v. Bouaphakeo – Legal Reform

U.S. Supreme Court

NFIB Legal Center joined with the U.S. Chamber of Commerce on a brief urging the Supreme Court to rigidly enforce federal rules precluding certification of class action lawsuits. Specifically, we argued that it is improper to certify a class action suit to proceed in the absence of solid evidence that all of the class members have been injured in the same way. Controversially, the plaintiffs in this lawsuit seek to certify their class action on the basis of statistical assumptions in a manner that assumes the employees of a company worked the same number of overtime hours—an assumption that does not bear out in reality, and which would result in injustice both to the defendant-company and to any truly injured individuals. As we argued, it’s improper to rely on these statistical models because they would ultimately award damages to some individuals who had not been injured (or greater damages than they ought to receive), while conversely denying proper compensation to individuals who may have suffered a more serious injury than the statistical mean average of the representative class. For all of these reasons we maintain that courts should not certify class action lawsuits in reliance on statistical models based. 

 

T-Mobile v. City of Roswell – Regulatory

U.S. Supreme Court (originated in TX)

The issue in the case is whether a local governmental authority complies with the requirement in the Telecommunications Act of 1996 that any denial of an application to install a wireless communication facility be “in writing and supported by substantial evidence” if it fails to specify any reasons for its denial. Prior to the 1996 Act, local zoning authorities often dragged their feet or otherwise sought to prevent telecommunications companies from siting vital infrastructure (such as the cell phone towers at issue here) in their communities.  The Act was designed to fix that problem by requiring denials to be subject to effective judicial oversight.  

 

United Auto Workers v. Volkswagen – Labor

National Labor Relations Board

NFIB joined an amicus brief arguing that the NLRB’s Specialty Healthcare rule violates the fundamental principles of the National Labor Relations Act by ceding to the Union the Board’s responsibility to decide what bargaining unit is appropriate, and allows for the “balkanization” of employer workplaces by allowing for the creation of multiple micro-units that will cause endless negotiations, conflicting union demands and burdensome administrative obligations. 

Status: PENDING. Amicus brief filed 12/23/15.

 

United Airlines v. EEOC – ADA Accommodation Requirements Examined

U.S. Supreme Court – cert petition

Supreme Court has been asked to review the Seventh Circuit’s decision that the ADA requires employers to transfer minimally-qualified employees with disabilities over superior applicants with no disabilities. 

 

UNITE HERE v. Mulhall – Union Organizing
U.S. Court of Appeals for the Eleventh Circuit
U.S. Supreme Court

The appellate court ruled in favor of the employee that organizing assistance that includes lists of information about nonunion employees, use of private company property for organizing, and a gag-clause on company communications with its employees about unionization are “things of value,” making it illegal under Section 302 of the Labor Management Relations Act for the union to demand them. The decision created a circuit split, and the Supreme Court agreed to hear the matter.

 

University of Texas Southwestern Medical Center v. Nassar – Employment Discrimination
U.S. Supreme Court

NFIB filed a brief supporting the University of Texas in a retaliation claim. In this case, the Court will decide whether an employee alleging retaliation in violation of Title VII satisfies the burden of proof by establishing that retaliation was a motivating factor in an adverse employment decision, or whether the employee must instead go further and prove that the employer would not have taken the adverse action but for the improper motive.

 

US Legal Services v. Atalese – Freedom of Contract
United States Supreme Court – Petition for certiorari (From New Jersey Supreme Court)

The Federal Arbitration Act was enacted with the explicit purpose of ensuring that arbitration agreements will be respected in courts, so as to reduce litigation costs for businesses. Unfortunately some states have continually sought to invalidate arbitration agreements under judicially crafted rules. In this case, the New Jersey Supreme Court held that an arbitration agreement was invalid because it did not clearly state that the consumer would be waiving his/her right to a jury trial; however, the terms of the agreement were perfectly clear in stating that the parties were agreeing to “binding arbitration.” Accordingly, NFIB Legal Center joined with Cato Institute in arguing that the New Jersey Supreme Court’s decision undermines the national policy of enforcing arbitration agreements by their terms. And of greater concern, the brief argued that New Jersey’s rule has nationwide implications because any company doing business with a New Jersey customer must employ special language in future arbitration agreements.

 

US Sugar Corp v. EPA  – Property Rights

U.S. Supreme Court – cert petition

This suit challenges an EPA regulation that opens businesses up to citizen suits under the Clean Air Act anytime their boiler should malfunction. NFIB Legal Center is urging the Supreme Court to take this case because this rule would potentially open any business up to significant liabilities. We are asking for the Court to reject EPA’s boiler rule because it ignores Congress’ intention to limit potential liabilities for boiler malfunctions, and requires the impossible of small business.

Status: PENDING. Amicus brief filed 4/25/17.

 

Utility Air Regulatory Group v. EPA (American Chemistry Council, et. al v. EPA) – Challenge to Greenhouse Gas Rules
U.S. Supreme Court

In December of 2009, the EPA issued a finding that certain greenhouse gases (GHG) threaten public health and welfare and therefore, under the Clean Air Act (CAA), must be regulated by the EPA. NFIB joined with other concerned business groups and organizations to sue EPA over GHG rules. The federal Court of Appeals dismissed the lawsuit. NFIB’s cert petition argues that the EPA has misinterpreted the Clean Air Act in order to justify its policies and, effectively rewrite key provisions.

 

Walburg v. Nack – Frivolous Litigation
U.S. Supreme Court 

The Legal Center filed an amicus brief in support of cert petition on behalf of a small business owner who has been named as a defendant in a class claim under the Do-Not-Fax law. At issue is whether the FTC has authority under the statute to require an opt-out-notice on both solicited and unsolicited faxes.

 

Yaakov of Spring Valley v. FCC – Regulatory Reform

D.C. Circuit

NFIB Small Business Legal Center argues in this case that a FCC regulation governing solicited faxes is unconstitutional. The regulation requires businesses to include a boilerplate message on how the recipient of a fax may opt-out of future communications, regardless of whether the recipeitn consented to receiving the fax. But we maintain that FCC has authority only to regulate junk faxes, where the recipient has not expressly consented. With regard to consensual communications, our brief maintains that FCC’s regulation violates the First Amendment in violation of the compelled speech doctrine.  

 Status: PENDING. Amicus brief filed 3/10/16.

 

Yates v. United States – Over-criminalization
U.S. Supreme Court (originated in FL)

Mr. Yates was prosecuted under Section 1519 of Sarbanes Oxley for destroying three red groupers during the course of a National Marine Fisheries Service investigation. NFIB Legal Center argued that this provision was never intended to apply beyond the realm of financial regulation and corporate governance. Specifically we argued that a broad interpretation would criminalize conduct that Congress did not intend to cover and that a narrow construction should be applied in consideration of the purpose and context of the Act.

 

Young v. UPS – Employment
U.S. Supreme Court (originated in Maryland)

In this case, the employer denied a request for a work reassignment based on a collectively bargained agreement. NFIB argues that although the Pregnancy Discrimination Act (PDA) requires employers to treat women “affected by pregnancy, childbirth, or related medical conditions” the same in all aspects of employment as other employees, it stops short of imposing an affirmative duty on employers to provide pregnancy-related workplace accommodations to the extent that they are not offered categorically to all other employees.

 

Zoeller v. United Steel – Labor
IN Supreme Court

In this case a labor union challenges the constitutionality of Indiana’s Right to Work law. The union argues that the Right to Work law violates Indiana’s constitutional guarantee against forced servitude on the theory it compels unions to represent employees who are not paying for the representation. In response, NFIB Small Business Legal Center joined with National Right to Work in defending Indiana’s Right to Work statute. We argued that federal law preempts the union’s arguments, in allowing states to enact right to work statutes.  

 If you have a case that impacts small business, please contact us at 1-800-552-NFIB or email us at legalcenter@nfib.org. 

Thank You

 

 

 

 

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