Ariana Cortes and Karam Logan v. National Labor Relations Board

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued May 15, 2025 Decided July 22, 2025
No. 24-5152
ARIANA C ORTES AND K ARAM LOGAN ,
APPELLANTS
v.
NATIONAL LABOR R ELATIONS B OARD ,
APPELLEE
Consolidated with 24-5166
Appeals from the United States District Court
for the District of Columbia
(No. 1:23-cv-02954)
Aaron Solem argued the cause for appellants/cross-
appellees. With him on the briefs was Glenn M. Taubman.
Padraic J. Lehane, Trial Attorney, National Labor
Relations Board, argued the cause for appellee/cross-appellant.
With him on the briefs were Jennifer A. Abruzzo, General
Counsel, at the time the brief was filed, William B. Cowen,
Acting General Counsel, Nancy E. Kessler Platt, Associate
General Counsel, Dawn L. Goldstein, Deputy Associate
General Counsel, Kevin P. Flanagan, Deputy Assistant

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General Counsel, Christine Flack and Michael S. Dale,
Supervisory Attorneys, and Marianne L. Bowers and Craig
Ewasiuk, Trial Attorneys. Phillip H. Melton, Attorney, entered
an appearance.
Before: S RINIVASAN , Chief Judge, M ILLETT and GARCIA,
Circuit Judges.
Opinion for the court filed by Circuit Judge M ILLETT.
M ILLETT, Circuit Judge: Plaintiffs Ariana Cortes and
Logan Karam filed a lawsuit in district court seeking to
declare the statutory tenure protections for members of the
National Labor Relations Board unconstitutional. They now
appeal the district court’s order dismissing their case for lack
of jurisdiction. We hold that the parties are no longer
sufficiently adverse to support Article III jurisdiction.
Accordingly, we affirm the district court’s judgment
dismissing this case for lack of jurisdiction.
I
A
The National Labor Relations Board commonly
adjudicates unfair labor practice disputes between employers
on the one hand and employees or labor unions on the other.
29 U.S.C. § 153(a). The Board is made up of five members
who are “appointed by the President by and with the advice
and consent of the Senate” to serve staggered five-year terms.
Id. The President may remove a Board member “for neglect
of duty or malfeasance in office, but for no other cause.” Id.

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B
Plaintiffs Ariana Cortes and Logan Karam are baristas
employed at Starbucks stores in Buffalo, New York, and
Depew, New York, respectively. App. 26 (Am. Compl. ¶¶ 10,
11). In the Spring of 2022, the National Labor Relations
Board certified Workers United (“Union”) as the exclusive
representative of employees at the stores in which Ms. Cortes
and Mr. Karam work. App. 27, 31 (Am. Compl. ¶¶ 14, 31).
Once the Board certifies a union as the representative of
a particular bargaining unit, the law generally entitles that
union to a conclusive presumption of majority support for the
year following certification. Fall River Dyeing & Finishing
Corp. v. NLRB, 482 U.S. 27, 37 (1987); see also 29 U.S.C.
§ 159(c)(3) (“No election shall be directed in any bargaining
unit or any subdivision within which in the preceding twelve-
month period, a valid election shall have been held.”).
After that first year elapsed, Ms. Cortes filed a
decertification petition with the NLRB regional director
requesting a new election in her store to determine whether a
majority of the employees wished to continue being
represented by the Union. App. 28 (Am. Compl. ¶ 19) (citing
Starbucks Corporation, Case No. 03-RD-316974). On
October 18, 2023, Mr. Karam filed a similar decertification
petition. App. 32 (Am. Compl. ¶ 33) (citing Starbucks
Corporation, Case No. 03-RD-328126).
At the time that Ms. Cortes and Mr. Karam filed their
decertification petitions, the Union had already filed a number
of unfair labor practice proceedings against Starbucks. App.
28–30, 32 (Am. Compl. ¶¶ 21–23, 34). The Board generally
does not rule on a decertification petition when it has an unfair
labor practice proceeding pending against the employer as

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long as the regional director “has found merit in an unfair
labor practice charge involving misconduct that would
irrevocably taint the petition and any related election.” Rieth-
Riley Construction Co., 371 NLRB No. 109, slip op. at 1
(2022); NLRB Casehandling Manual (Part Two)
Representation Proceedings §§ 11730.3(b), 11733.1(a),
https://perma.cc/E9HS-NJB6. That is because the “standard
remedy” in an unfair labor practice proceeding is an extension
of the union’s one-year presumptive majority support status.
See J.G. Kern Enters. v. NLRB, 94 F.4th 18, 23 (D.C. Cir.),
cert. denied, 145 S. Ct. 380 (2024). For that reason, the
NLRB regional director dismissed Ms. Cortes’ and Mr.
Karam’s petitions subject to reinstatement after final
disposition in the pending unfair labor practice proceedings.
See NLRB Region 3 Decision and Order, 03-RD-316974
(May 25, 2023); NLRB Region 3 Decision and Order, 03-RD-
328126 (Nov. 28, 2023).
Ms. Cortes and Mr. Karam each sought review by the
Board of the regional director’s dismissal orders. App. 31
(Am. Compl. ¶ 26); App. 138. The Board denied their
requests for review, holding instead that their petitions were
subject to reinstatement, if appropriate, after final disposition
of the pending unfair labor practice proceedings against
Starbucks. App. 31 (Am. Compl. ¶ 27); App. 198. In line
with its standard practice, the Board made Ms. Cortes and Mr.
Karam parties in interest to the pending unfair labor practice
charges so that they would be notified of the final outcome of
those cases. Starbucks Corp., 372 NLRB No. 156 (Nov. 15,
2023); Starbucks Corp., 03-RD-328126 at 1 (March 12,
2024); see National Labor Relations Casehandling Manual
(Part One) Unfair Labor Practice Proceedings, § 11733.2(b),
https://perma.cc/PYF2-AUQ7.

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C
After Ms. Cortes and Mr. Karam filed their petitions for
decertification, they filed this lawsuit in the United States
District Court for the District of Columbia. The complaint
challenges the constitutionality of the statutory tenure
protections for members of the Board, 29 U.S.C. § 153(a), on
the basis that they place an impermissible limitation on the
President’s “executive Power” and charge to “take Care that
the Laws be faithfully executed,” U.S. C ONST. Art. II, §§ 1, 3.
Ms. Cortes and Mr. Karam sought an injunction preventing
the Board from acting on their petitions for decertification
until the resolution of the lawsuit.
The Board moved to dismiss the lawsuit on the grounds
that the tenure protections are constitutional and that, even if
they are not, Ms. Cortes and Mr. Karam are not entitled to
relief because they were required to allege “compensable
harm,” but had failed to do so. App. 131 (citing Collins v.
Yellen, 594 U.S. 220, 259 (2021)).
The district court granted the Board’s motion to dismiss
on two grounds. See Cortes v. NLRB, No. 23-CV-2954, 2024
WL 1555877 (D.D.C. Apr. 10, 2024). First, the district court
concluded that Ms. Cortes and Mr. Karam each lacked
standing because, by the time the district court entered its
judgment, the Board had dismissed their petitions, and they
had not yet sought reinstatement of their decertification
petitions. For that reason, the district court concluded that Ms.
Cortes and Mr. Karam failed to establish an actual or
imminent injury. Id. at *4. Second, the district court agreed
with the Board that Ms. Cortes and Mr. Karam were required
to allege compensable harm and that they had failed to do so.
Id. at *6.

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II
On review before this court, the parties have shifted their
positions. Ms. Cortes and Mr. Karam have abandoned their
claims for injunctive relief and ask this court only to declare
that the Board members’ tenure protections violate Article II
of the Constitution. See Plaintiffs’ Reply Br. 8; Oral
Argument Tr. 14:19–15:11. In addition, on April 1, 2025, the
Board notified this court that, “consistent with the position of
the Acting Solicitor General,” it was “no longer relying on its
previous argument that the statutory tenure protections for
Board members are constitutional.” Board Notice of Position
Modification at 1. Therefore, the sole remedy Ms. Cortes and
Mr. Karam seek against the government is a judicial statement
of law with which the government fully agrees and has
already advanced in this very case.
Article III of the Constitution limits this court to the
adjudication of “[c]ases” and “[c]ontroversies.” U.S. C ONST.
Art. III § 2. In that way, “Article III denies federal courts the
power ‘to decide questions that cannot affect the rights of
litigants in the case before them,’ and confines them to
resolving ‘real and substantial controversies admitting of
specific relief through a decree of a conclusive character[.]’”
Lewis v. Continental Bank Corp., 494 U.S. 472, 477 (1990)
(quoting North Carolina v. Rice, 404 U.S. 244, 246 (1971))
(citation omitted).
The Declaratory Judgment Act, 28 U.S.C. § 2201, “alone
does not provide a court with jurisdiction.” California v.
Texas, 593 U.S. 659, 672 (2021); see also Skelly Oil Co. v.
Phillips Petroleum Co., 339 U.S. 667, 671–672 (1950).
Rather, declaratory judgment actions must satisfy Article III’s
case-or-controversy requirement “just like suits for every
other type of remedy[.]” California, 593 U.S. at 672; see also

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MedImmune, Inc. v. Genentech, Inc., 549 U.S. 118, 126–127
(2007); Aetna Life Ins. Co. v. Haworth, 300 U.S. 227, 240–
241 (1937) (“The controversy must be definite and concrete,
touching the legal relations of parties having adverse legal
interests.”). The requirement that there be a live case or
controversy “subsists through all stages of federal judicial
proceedings, trial and appellate.” Lewis, 494 U.S. at 477.
To establish a case or controversy, the parties must have
adverse interests, meaning that a judgment benefiting the
plaintiff’s concrete interests must adversely affect a concrete
interest of the defendant. For example, in United States v.
Windsor, 570 U.S. 744 (2013), although the parties agreed
that the statute at issue was unconstitutional, the parties
remained adverse because Windsor sought not only a
declaration of unconstitutionality, but also a federal tax refund
that the government continued to refuse to pay, id. at 758.
Because an order directing the government to issue the refund
would cause the government a “real and immediate economic
injury” and would require the government to take an action it
would not “but for the court’s order,” a justiciable dispute
between the parties remained. Id. (internal citation omitted).
As a result, the government, in seeking Supreme Court
review, “retain[ed] a stake sufficient to support Article III
jurisdiction[.]” Id. at 757. The fact that the government “may
[have] welcome[d]” a lower court order requiring it to pay the
tax refund if that order were “accompanied by the
constitutional ruling it want[ed] [did] not eliminate the injury
to the national Treasury if payment is made, or to the taxpayer
if it is not.” Id. at 758.
Similarly, in Seila Law LLC v. Consumer Financial
Protection Bureau, 591 U.S. 197 (2020), the parties agreed
that the statutory tenure protections for the director of the
Consumer Financial Protection Bureau were unconstitutional.

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But constitutional adversity remained because the Bureau
continued to enforce a civil investigative demand against
Seila Law on the theory that the tenure protections were
severable from the rest of the statute. Id. at 212–213. As a
result, the court’s ruling would have “‘real meaning’ for the
parties.” Id. at 213 (quoting INS v. Chadha, 462 U.S. 919,
939 (1983)). “[R]eal-world consequences for the
Government and its adversary” resulting from a court order
“suffice[] to support Article III jurisdiction—even if ‘the
Executive may welcome’ an adverse order that ‘is
accompanied by the constitutional ruling it wants.’” Id. at 212
(quoting Windsor, 570 U.S. at 758).
In sum, to have a case or controversy, the parties must
seek adverse forms of relief from the court such that the
court’s judgment will “require [the defendant] to act,” NLRB
v. Constellium Rolled Prods. Ravenswood, LLC, 43 F.4th 395,
404 (4th Cir. 2022), in a way that will adversely affect its own
interests and, in that way, have “real meaning for the parties,”
Seila Law, 591 U.S. at 213 (internal citation omitted). Cf.
Hewitt v. Helms, 482 U.S. 755, 761 (1987) (“The real value
of the judicial pronouncement—what makes it a proper
judicial resolution of a ‘case or controversy’ rather than an
advisory opinion—is in the settling of some dispute which
affects the behavior of the defendant towards the plaintiff.”).
That type of adversity is missing here. Ms. Cortes, Mr.
Karam, and the government now fully agree that the Board
members’ removal protections are unconstitutional. Ms.
Cortes and Mr. Karam do not seek to enjoin the Board from
acting, nor do they seek a declaration that the Board itself is
unconstitutional. Cf. Free Enter. Fund v. Public Co. Acct.
Oversight Bd., 561 U.S. 477, 487 (2010) (seeking “a
declaratory judgment that the Board is unconstitutional and an
injunction preventing the Board from exercising its powers”).

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They have not asked this court to order the government to
confer a benefit on them or to enjoin any governmental action
affecting them. They seek only to have a court say what the
government has already said—the Board’s tenure protections
are unconstitutional. In other words, Ms. Cortes and Mr.
Karam have not sought any relief from this court that the
government has refused to provide. Awarding Ms. Cortes and
Mr. Karam the declaratory judgment they seek would have no
“real-world consequences” or “real meaning for the parties.”
Seila Law, 591 U.S. at 212–213 (internal citation omitted).
To be sure, the parties disagree about whether the
Supreme Court’s decision in Collins requires Ms. Cortes and
Mr. Karam first to establish “compensable harm” to be
eligible for the declaratory judgment they seek. Compare
Plaintiffs’ Opening Br. 53–60, with Gov’t Br. 24–42. But the
issue of Plaintiffs’ eligibility for relief does not itself create
adversity when, as here, answering that question would not
affect any concrete interest of either party. For even were this
court to find that Ms. Cortes and Mr. Karam are eligible for a
declaratory judgment in this case, the government would
suffer no “real-world consequences” that flow from that
determination. Seila Law, 591 U.S. at 212. Granting the
declaratory judgment requested in the complaint would lead
only to a judicial declaration of law with which the
government, Ms. Cortes, and Mr. Karam fully and mutually
agree.
At the same time, a decision ruling that Ms. Cortes and
Mr. Karam are not eligible for a declaratory judgment under
Collins would not affect any concrete interest of theirs
because the government does not seek to do anything adverse
to them or to withhold any action they desire. Under Article
III, the parties must have something beyond a debate of law
to win or lose. Said another way, the question for Article III

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adverseness is not whether the parties agree on every sub-
issue in the case, but whether the resolution of any of those
issues would create a judgment that adversely affects one
party’s concrete interests and benefits the other’s. Here, the
declaratory judgment that Ms. Cortes and Mr. Karam seek
would not adversely affect any concrete interest of the
government, and, in fact, the government is in full agreement
with the content of any such judgment.
III
For the foregoing reasons, we affirm the district court’s
judgment dismissing the case for lack of Article III
jurisdiction.
So ordered.

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