[00:00:00] Speaker 00:
Case number 24-5152 et al.

[00:00:04] Speaker 00:
Arianna Cortez and Karen Logan, Appellants vs. National Labor Relations Board.

[00:00:09] Speaker 00:
Mr. Solon for the Appellant's cross appellees Arianna Cortez et al.

[00:00:13] Speaker 00:
Mr. Lahane for the Appellee Cross Appellant National Labor Relations Board.

[00:00:18] Speaker 05:
Good morning, Council.

[00:00:19] Speaker 05:
Mr. Solemn, please proceed when you're ready.

[00:00:21] Speaker 03:
Thank you.

[00:00:21] Speaker 03:
May it please the court.

[00:00:22] Speaker 03:
This court has jurisdiction because the declaration will have real meaning for the parties here, especially if Gwen Willcox is returned to the board.

[00:00:31] Speaker 03:
If Section 3A is unconstitutional, Wilcox is not a legitimate board member, and she could not decide any of my client's cases pending before the board, because any decision she makes would be ultra viris and would be inconsistent with the declaration stating that the board has to conduct itself in a manner consistent with Article 2 and to be politically accountable.

[00:00:52] Speaker 03:
And without Wilcox, the board lacks a quorum and can't decide any case right now.

[00:00:56] Speaker 03:
This means that if Wilcox is on the board, a declaration definitely resolves the here and now injury of appearing before an official that has been lawfully removed and restored based only on a court order.

[00:01:09] Speaker 03:
And even if Wilcox is not on the board, because right now the Chief Justice's stay has not been resolved, a declaration still has real meaning because it effectively means Wilcox cannot be returned to the board.

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It could serve as a shield to prevent her from deciding any future case.

[00:01:24] Speaker 03:
So rather than resolving the issue, Wilcox's removal in the subsequent litigation and her subsequent litigation exacerbates the harm here.

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And the injury I would contend here is far more concrete now than it was at the beginning of this litigation or in any other separation of powers case that deals with the removal provision since Morrison.

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In Morrison, Free Enterprise Fund, Celia Law, and Collins, they were all brought

[00:01:52] Speaker 03:
by private citizens appearing before officials with unlawful tenure protections, but the president in none of those cases ever evidenced a desire to fire any of those officials.

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Yet the court still found those cases were right because of an injury of merely appearing before an official who's unlawfully protected by tenure protections.

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But here, Cortez and Karam are going to appear before an official who was removed and restored by a judicial order.

[00:02:19] Speaker 03:
Wilcox, who has a court order restored from the district court restoring- We don't know what's going to happen.

[00:02:26] Speaker 01:
Why would any court decide such a constitutional question?

[00:02:32] Speaker 01:
And as you say, it is in fact not a here and now injury.

[00:02:35] Speaker 01:
It's a maybe or maybe not injury.

[00:02:39] Speaker 03:
Well, the stay is not permanent.

[00:02:40] Speaker 03:
The stay is a temporary suspension.

[00:02:42] Speaker 01:
I'm not aware of that.

[00:02:43] Speaker 01:
But administrative stay is usually followed by either a denial or grant.

[00:02:46] Speaker 01:
So why would this court in advance at this time?

[00:02:51] Speaker 01:
Because there's no disagreement between you and the other side.

[00:02:56] Speaker 03:
I disagree about that, but I can address it.

[00:02:58] Speaker 01:
Well, I mean, let me finish off.

[00:03:01] Speaker 01:
No disagreement on the content of the declaration that you want.

[00:03:06] Speaker 01:
No disagreement about the legal rule that you want to have pronounced by a court, correct?

[00:03:13] Speaker 03:
About the declaration, they are still seeking a judgment, though, against my client.

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They have a cross appeal.

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And they say that they are entitled to judgment.

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So I think we're adverse on that basis.

[00:03:25] Speaker 01:
What judgment do they want?

[00:03:26] Speaker 03:
They want a judgment that the case is dismissed.

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I don't know if it's with prejudice, but they want a judgment in their favor.

[00:03:33] Speaker 01:
That's just disagreeing about a jurisdictional question.

[00:03:37] Speaker 03:
Collins is a merits question.

[00:03:40] Speaker 01:
Okay, but you don't get to that unless there's jurisdiction.

[00:03:43] Speaker 01:
The first question is, is there any adversity?

[00:03:46] Speaker 01:
Yes.

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As to that, you're both in agreement.

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There's adversity to the board.

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Even if the stay is continued, it has a real word.

[00:03:55] Speaker 01:
I thought they were speaking for the board.

[00:03:58] Speaker 03:
Well, I'm going to say what my view is.

[00:04:00] Speaker 03:
They can speak for themselves.

[00:04:01] Speaker 03:
But I think this case is against the board.

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And a declaration wouldn't serve as a shield to Wilcox returning because it means she couldn't return.

[00:04:11] Speaker 01:
But we don't know.

[00:04:12] Speaker 03:
Well, we don't know right now.

[00:04:14] Speaker 01:
Right now.

[00:04:15] Speaker 01:
So you're the one who said it was a here and now injury.

[00:04:17] Speaker 01:
Well, we don't know right now.

[00:04:18] Speaker 01:
It's a maybe, maybe not injury right now.

[00:04:20] Speaker 01:
Well, I still thought... Today, it's a maybe, maybe not injury.

[00:04:22] Speaker 03:
So what I would say is our best case is if the stay is resolved and she's back on the board, right?

[00:04:28] Speaker 03:
But I would say still, there is still a here and now.

[00:04:30] Speaker 01:
That's your best case?

[00:04:30] Speaker 03:
I don't think that's what you want.

[00:04:32] Speaker 03:
What?

[00:04:33] Speaker 03:
Our best case for jurisdiction.

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OK.

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Our best case for jurisdiction.

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Right.

[00:04:37] Speaker 03:
Right.

[00:04:37] Speaker 01:
So but I still think- Well, we can go on with the litigation is what the status is right now.

[00:04:41] Speaker 01:
Again, it's a temporary rather than permanent right now.

[00:04:43] Speaker 01:
Right, right.

[00:04:44] Speaker 01:
We don't know if it'll be permanent.

[00:04:45] Speaker 01:
It would be weird.

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But what you have right now is exactly what you want to achieve.

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And they agree.

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But that's the right legal outcome.

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So I'm just I'm still having trouble seeing the adversity today.

[00:04:57] Speaker 03:
But when Wilcox was on the board because she was returned to the board for about three or four weeks, they decided roughly 15 cases.

[00:05:05] Speaker 03:
Those we don't we don't want the board deciding cases with her on it.

[00:05:08] Speaker 03:
If the stay is lifted.

[00:05:10] Speaker 03:
Right.

[00:05:11] Speaker 03:
She'll be returned to the board in the meantime.

[00:05:13] Speaker 01:
The stay is retained.

[00:05:14] Speaker 01:
She won't be.

[00:05:14] Speaker 01:
So again, I'm asking you about, again, because it would resolve her.

[00:05:19] Speaker 01:
We're in this in between time.

[00:05:21] Speaker 01:
And we don't, we tend not to, we assess whether there is adversity between parties at the time of our decision.

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Right.

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And there isn't.

[00:05:33] Speaker 01:
No.

[00:05:33] Speaker 03:
So I have two answers.

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One is it serves as a shield to her return.

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It would effectively end her case.

[00:05:39] Speaker 03:
It would stop the harm of that happening, right?

[00:05:42] Speaker 03:
Because if we won and Section 3A was unconstitutional, she has no right to return to the board.

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So it would have a real, the question is, does it have a real world impact that would change how my clients and the board interface?

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And that would prevent someone from returning to the board.

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So that's a real world impact.

[00:05:59] Speaker 03:
But second, even if you don't buy, that's a real world impact.

[00:06:04] Speaker 03:
That's an argument for withholding the decision in this case until the stay has been resolved.

[00:06:10] Speaker 01:
But only until... Did you ask in your supplemental briefing for this case to be held in advance?

[00:06:15] Speaker 03:
No, because I don't think it needs to be.

[00:06:17] Speaker 03:
But that would be an argument for stay.

[00:06:20] Speaker 03:
If you dismiss this case as moot, right?

[00:06:23] Speaker 02:
Why doesn't it need to be?

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Even in the best of all, if there isn't a jurisdictional problem, which you're basically describing is that we should decide this case to interrupt ongoing litigation over Wilcox's statement, why would that be appropriate?

[00:06:36] Speaker 03:
Well, I think it's appropriate for a couple reasons.

[00:06:39] Speaker 03:
One is, if this court has jurisdiction, it has an unflagging duty to exercise that jurisdiction under Article III, and it shouldn't put off that jurisdiction.

[00:06:47] Speaker 03:
Second, I think this case is just as important as Wilcox, right?

[00:06:51] Speaker 03:
The separation of powers doesn't just protect the president.

[00:06:54] Speaker 03:
It protects citizens appearing before the board.

[00:06:57] Speaker 03:
And that's why Morrison, Free Enterprise Fund, Celia Collins, all dealt with private parties challenging removal restrictions, and the court deciding those issues in turn.

[00:07:08] Speaker 05:
So you would object to, even if we get past adversity, you would object to holding this case for the case that's about to be argued on Harrison Wilcox?

[00:07:19] Speaker 03:
Yeah, yeah, yeah.

[00:07:20] Speaker 03:
And this case has also been pending for much longer than Wilcox v. Trump.

[00:07:26] Speaker 01:
So you just told me we could hold it in advance as your backup argument.

[00:07:29] Speaker 03:
Well, that's that's that's no, that's my that's my that's my backup argument.

[00:07:32] Speaker 03:
That's why I said I don't want you to dismiss the case.

[00:07:34] Speaker 03:
You shouldn't dismiss the case.

[00:07:35] Speaker 01:
It's a hard no to the chief judge.

[00:07:37] Speaker 01:
But now you're saying that's plan B. Well, it's more like plan D or E. Because the first thing I want any other plans are we're only here on the jurisdictional question.

[00:07:47] Speaker 03:
I don't think we're just here on the jurisdiction.

[00:07:49] Speaker 01:
Well, that's all the district court decided.

[00:07:51] Speaker 01:
So this court did not resolve the merits of this case.

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And so

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If we're here on a jurisdictional question, that would be, I don't know what all your other letters are between A and B, then either we say district court was right or the district court was wrong in its judgment finding no jurisdiction.

[00:08:08] Speaker 01:
And if we think it was wrong about that, we send it back to resolve the merits.

[00:08:12] Speaker 01:
So I don't know what the PC.

[00:08:14] Speaker 03:
Well, the district court resolved two questions.

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One, it said we didn't have standing and that was wrong and the board concedes that it was wrong.

[00:08:21] Speaker 03:
In any event, they're standing now because of the request for review.

[00:08:26] Speaker 03:
But second, the board also went and decided the Collins issue in the Collins issue until you found a removal violation.

[00:08:34] Speaker 03:
Well, that's that's not what the board has said.

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They said the board, the board and the court said we don't even have to decide the Humphreys case.

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the Humphreys issue until you decide Collins first.

[00:08:44] Speaker 03:
Now, I think that's backwards because the court in Collins decided the removal question and then decided the remedial issue.

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And I think it's better seen as a remedial issue.

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But the district court rejected Collins as a remedial issue and said it's a question of the merits, it's an element of the claim.

[00:09:01] Speaker 01:
So the mayor- And still wouldn't you have us deciding the merits of the removal authority?

[00:09:07] Speaker 03:
Well, the court can decline to go to the merits of the removal authority, but it's a pure legal question.

[00:09:12] Speaker 03:
There's no need to remand to the district court for further development about what Humphreys means.

[00:09:17] Speaker 03:
This court can decide that, especially if it has jurisdiction, and especially if we overcome the Collins roadblock, although I don't see it's a roadblock because I don't think Collins applies.

[00:09:33] Speaker 01:
I had a question about

[00:09:36] Speaker 01:
the way the district court decided standing at the time, the district court was looking at the case.

[00:09:44] Speaker 01:
You were no longer before, or its rationale was you no longer had a proceeding before the board.

[00:09:53] Speaker 01:
But I think, and correct me if I'm wrong, throughout the district court litigation, you were a party in interest for the unfair labor proceedings.

[00:10:04] Speaker 01:
Do you have thoughts on whether that status is sufficient?

[00:10:11] Speaker 01:
I know you've got the we were out and we were back in thing but put that aside.

[00:10:15] Speaker 01:
Is that party and interest status sufficient to have kept you with a proceeding before the board?

[00:10:23] Speaker 03:
I think so.

[00:10:24] Speaker 03:
I definitely think so.

[00:10:26] Speaker 01:
Because the question... You're not seeking any relief in those proceedings.

[00:10:30] Speaker 01:
On the other hand, the board sort of puts you in that status.

[00:10:35] Speaker 03:
The board... You know, it's not the best read to decide the case, right?

[00:10:41] Speaker 03:
And I think there's a much stronger rate considering we have requests.

[00:10:44] Speaker 01:
I'm just asking this question, though.

[00:10:45] Speaker 03:
But yeah, I think so, mostly because it's an interest that we have before the board, right?

[00:10:53] Speaker 03:
And so the question is, do you have business before the board?

[00:10:56] Speaker 03:
And the business is admittedly slight because it's dependent upon another case.

[00:11:02] Speaker 03:
But that case determined, the outcome of that case determines whether or not my clients had a substantive right to seek another election.

[00:11:10] Speaker 03:
So we still have business before the board, and we still want the board to conduct itself in a politically accountable way at that point.

[00:11:17] Speaker 03:
So it's not the same as full party status.

[00:11:20] Speaker 03:
I'll admit that.

[00:11:22] Speaker 03:
And it's not as strong, but I think it's a basis.

[00:11:28] Speaker 05:
OK.

[00:11:29] Speaker 05:
We'll give you a little bit of time for questions.

[00:11:32] Speaker 05:
We'll hear from the board and give you a little bit of time for a vote.

[00:11:34] Speaker 01:
I'm sorry.

[00:11:35] Speaker 01:
One more question.

[00:11:36] Speaker 01:
One more thing.

[00:11:38] Speaker 01:
wasn't crystal clear from your breeze, but I want to make absolutely sure.

[00:11:42] Speaker 01:
Have you fully abandoned your request for injunctive relief in this case or just on appeal?

[00:11:49] Speaker 03:
So, um,

[00:11:52] Speaker 03:
We have no work.

[00:11:54] Speaker 03:
We don't want to seek an injunction at this point.

[00:11:56] Speaker 03:
Not at this point?

[00:11:58] Speaker 03:
At any point, right?

[00:11:59] Speaker 03:
At any point in this case.

[00:12:00] Speaker 03:
We've abandoned that argument.

[00:12:01] Speaker 01:
Abandoned your request and your complaint for injunction.

[00:12:05] Speaker 03:
And if I can explain why.

[00:12:06] Speaker 03:
Permanently.

[00:12:07] Speaker 03:
If I can explain why.

[00:12:08] Speaker 01:
Okay, but can you just answer my question?

[00:12:09] Speaker 01:
Yes, permanently.

[00:12:09] Speaker 03:
Permanently.

[00:12:11] Speaker 03:
Okay.

[00:12:12] Speaker 03:
If I can explain why.

[00:12:14] Speaker 03:
Um, an injunction in a declaration in this case have no meaningful difference.

[00:12:20] Speaker 03:
You don't have to take my word for it.

[00:12:21] Speaker 03:
That's the word of the board.

[00:12:23] Speaker 03:
The board at the district court said it opposed an injunction because it said a declaration would have the exact same effect as an injunction in this case.

[00:12:31] Speaker 01:
It's been at least not crystal clear to me whether you were just not, you were abandoning it for purposes of appeal or you are, you are

[00:12:41] Speaker 01:
fully abandoning for all time in this litigation, your request for injunction.

[00:12:46] Speaker 03:
We're not seeking an injunction because the declaration in this case before the board decides would have the same effect as an injunction.

[00:12:52] Speaker 01:
Thank you.

[00:12:52] Speaker 03:
Can I just give you one?

[00:12:54] Speaker 03:
I'm going to ask you one more question.

[00:12:58] Speaker 02:
So your basic response on adverseness, it seems to me, and I'd like you to explain why this is wrong, is that we should resolve the legal question in this case where no one disagrees about

[00:13:12] Speaker 02:
to preempt it being resolved against you in a case where the parties do disagree.

[00:13:18] Speaker 02:
And that sets off every alarm bell I have of what it means to only resolve controversies with adverse parties.

[00:13:28] Speaker 02:
It seems to be exactly backwards.

[00:13:30] Speaker 02:
How would you dissuade me?

[00:13:32] Speaker 03:
I would dissuade you of that because one is the board only changed its, if it's an Article III matter, right, if you don't have Article III jurisdiction, then there is no, then you can't decide this case at all.

[00:13:47] Speaker 03:
But case after case, so if you look at Windsor, if you look at Celia, the government abandoned defending the statute and the court still decided the case, right?

[00:13:56] Speaker 03:
Because it's not an Article III question.

[00:13:59] Speaker 03:
It's a potential question.

[00:14:00] Speaker 03:
And in this case, I mean, I feel a little sandbagged because the government changed its position after almost two years of arguing six weeks ago, right?

[00:14:08] Speaker 03:
And the prudential question, I think, is just as strong in this case.

[00:14:13] Speaker 03:
Because what you would be saying is, I think this is just as important case as Wilcox.

[00:14:17] Speaker 03:
And the arguments are before the court, in the board's briefs.

[00:14:21] Speaker 03:
The board hasn't withdrawn its briefs.

[00:14:23] Speaker 03:
The board just said, oh, we don't rely on it anymore.

[00:14:27] Speaker 03:
It's been Humphrey's month at the court, right?

[00:14:29] Speaker 03:
The court is well aware of all

[00:14:30] Speaker 03:
the issues with Humphreys and the arguments for and against.

[00:14:33] Speaker 03:
So put that all on one side.

[00:14:35] Speaker 03:
But to not decide this case would be saying that it's the court's province to decide what the law is.

[00:14:42] Speaker 03:
And they're going to say, well, in this case, we're going to outsource that to the president.

[00:14:47] Speaker 03:
And because the president has made a differing opinion, we're going to let that differing opinion stand and not exercise our own jurisdiction to decide this case.

[00:14:56] Speaker 03:
And I think that's wrong.

[00:14:58] Speaker 03:
Any other questions?

[00:14:59] Speaker 03:
I can sit down.

[00:15:01] Speaker 05:
We'll give you a little time for rebuttal.

[00:15:15] Speaker 04:
Good morning, Your Honors, and may it please the Court.

[00:15:19] Speaker 04:
My name is Patty Lahane.

[00:15:20] Speaker 04:
I am here on behalf of the NLRB.

[00:15:22] Speaker 04:
This case should be dismissed for lack of jurisdiction because the parties are not adverse.

[00:15:27] Speaker 04:
And even if they were, the district court correctly dismissed this case because appellants failed to demonstrate causal harm.

[00:15:33] Speaker 04:
Turning to the first and really the crucial point here is that appellants are ultimately seeking a declaratory judgment that removal protections for members of the NLRB are unconstitutional.

[00:15:44] Speaker 04:
The problem is that the NLRB is no longer defending a contrary position.

[00:15:48] Speaker 04:
On the crucial underlying constitutional question at the heart of this case, the parties agree.

[00:15:53] Speaker 04:
And when litigants ultimately agree on the answer to the essential question presented,

[00:15:57] Speaker 04:
and desire the same result, the parties are no longer adverse for purposes of Article III jurisdiction.

[00:16:03] Speaker 04:
And when the government agrees with a litigant on a constitutional question and takes no action contrary to their asserted position, there is also no adverseness.

[00:16:12] Speaker 04:
The critical inquiry in adverse case law is about whether the relief is going to have a real world tangible impact on the conduct of the parties.

[00:16:22] Speaker 04:
Here, the declaratory judgment would essentially have no meaning or consequences for the parties in any practical sense.

[00:16:28] Speaker 04:
What the plaintiffs are asking for is a declaration that will merely affirm what both sides agree is the law.

[00:16:34] Speaker 04:
There's no immediate threat to be addressed here, as evidenced by the appellant's arguments that they're not seeking injunctive relief.

[00:16:42] Speaker 04:
And the toothlessness of such a declaration is compounded by the fact that the executive branch is already conducting itself in accord with the appellant's view of the law.

[00:16:52] Speaker 04:
Now, of course, there are instances where an agreement on the constitutional question did not extinguish the party's adverseness.

[00:16:58] Speaker 04:
Say the law and Windsor both involve parties agreeing on a constitutional question but remaining adverse.

[00:17:04] Speaker 04:
But this case is not like say the law because the government continued to seek enforcement of a civil investigative demand despite agreeing on the merits of the constitutional claim.

[00:17:13] Speaker 04:
Here, the NLRB is not trying to enforce anything against them.

[00:17:17] Speaker 04:
Same for Windsor.

[00:17:18] Speaker 04:
The government agreed on the constitutionality of the Defense of Marriage Act, but nevertheless withheld the plaintiff's estate tax refund.

[00:17:25] Speaker 04:
But again, the NLRB is not withholding anything from the appellants.

[00:17:29] Speaker 04:
In fact, both parties want the administrative case to proceed.

[00:17:33] Speaker 04:
The operative inquiry here relates to the impact of the relief on conduct.

[00:17:38] Speaker 04:
And the thing we disagree on is whether there should be a declaration.

[00:17:41] Speaker 04:
But that doesn't have anything to do with conduct.

[00:17:44] Speaker 04:
Nothing about our conduct changes.

[00:17:46] Speaker 04:
A declaration here would not require the government to do something it would not do or stop it from doing something it would otherwise do.

[00:17:54] Speaker 04:
At bottom, adverseness is necessary to ensure that the court is being asked to settle a bona fide dispute with real impact and import on the parties involved.

[00:18:03] Speaker 04:
And that just does not exist here.

[00:18:06] Speaker 02:
This just as a practical matter.

[00:18:08] Speaker 02:
Maybe there's legal reasons you would just tell us not to issue a declaratory judgment.

[00:18:14] Speaker 02:
Why are you bothered by us issuing a declaratory judgment?

[00:18:17] Speaker 04:
Well, I think that there are institutional concerns for the agency to not want to grant declaratory relief

[00:18:34] Speaker 04:
when just purely on the basis of when an appellant has standing.

[00:18:40] Speaker 04:
And I think that there's good reasons also for the court to not grant declaratory relief when the plaintiffs aren't entitled to it because they haven't satisfied the elements of the claim.

[00:18:51] Speaker 05:
I mean, so you're protecting our interests.

[00:18:53] Speaker 05:
But I mean, in terms of your own, you're just worried about a precedent that allows for declaratory relief to be entered against the board?

[00:19:03] Speaker 04:
Well, yeah, I think that there's a colorable argument to be made about the causal harm element of this case.

[00:19:11] Speaker 05:
On the Collins issue?

[00:19:13] Speaker 04:
Right, yes.

[00:19:14] Speaker 04:
But the primary overarching issue is it's a matter of jurisdiction.

[00:19:20] Speaker 04:
And because we're not adverse, there's just no jurisdiction to pass on that.

[00:19:26] Speaker 02:
We're just trying to get at practically

[00:19:29] Speaker 02:
If everything you say is true, you might say, we don't care if you enter a declaratory judgment.

[00:19:35] Speaker 02:
And the fact that you're not might suggest your agency wants to be able to change its position or something like that.

[00:19:44] Speaker 04:
Well, I mean, I stand by my previous answer.

[00:19:48] Speaker 04:
I think that there is a, right, my point about institutional concerns.

[00:19:55] Speaker 04:
I think that the problem would be

[00:19:59] Speaker 04:
This may be party-specific relief.

[00:20:02] Speaker 04:
And if it's party-specific relief, then we'll be faced with the deluge of claims seeking declaratory relief just on the basis of standing and not necessarily on the basis of causal harm.

[00:20:14] Speaker 04:
So it's an administrative problem.

[00:20:17] Speaker 05:
Can I just make sure I understand one part of the sequencing here, which is, so you did file a cross appeal, as counsel on the other side mentioned.

[00:20:26] Speaker 05:
Yes.

[00:20:27] Speaker 05:
But I take it that you agree that if you were to prevail on the adverseness argument, that would result in a sustaining of the dismissal without prejudice.

[00:20:43] Speaker 05:
If we could get past jurisdiction and got to Collins,

[00:20:47] Speaker 05:
then you would get a dismissal with prejudice.

[00:20:50] Speaker 05:
But you agree that we never get to that issue if we agree with you on adverseness.

[00:20:55] Speaker 05:
So the dismissal without prejudice is, I'm sorry, the dismissal with prejudice is not in the field of vision at that point.

[00:21:01] Speaker 05:
So it would be more robust relief.

[00:21:03] Speaker 04:
Yes, I agree.

[00:21:05] Speaker 04:
I think that would be, we would be amenable to that.

[00:21:10] Speaker 04:
I think the crucial issue is that there just isn't jurisdiction now anymore.

[00:21:17] Speaker 04:
Any questions for you?

[00:21:20] Speaker 01:
Can you just tell me quickly what it means when the court on its own, or court, when the board on its own makes someone a party in interest to another proceeding?

[00:21:31] Speaker 01:
So are they still before the board in some sense?

[00:21:35] Speaker 04:
No, I think that that- Word said, we're not letting you go away.

[00:21:40] Speaker 01:
We're throwing you into this.

[00:21:42] Speaker 01:
It seems almost like it's some sort of abeyance type ruling by the board.

[00:21:45] Speaker 01:
I think that's an accurate way to- Normally, you're still a party before the board, before when your case is in abeyance.

[00:21:53] Speaker 04:
Yes, but the business before the board is that you're waiting on the outcome of another case- That's what an abeyance is.

[00:22:01] Speaker 04:
Right, and then a determination, but I wouldn't

[00:22:05] Speaker 04:
I wouldn't say that that's sufficient.

[00:22:08] Speaker 01:
So you're not still a party to a case before?

[00:22:10] Speaker 01:
Right, I just think it's... This case were held in abeyance, if we were to hold this case in abeyance.

[00:22:17] Speaker 01:
Wouldn't the board still be a party to a case before this court?

[00:22:21] Speaker 01:
It's just a case that's held in abeyance.

[00:22:22] Speaker 04:
Well, I think the board would be a party.

[00:22:24] Speaker 04:
But I think, again, what the operative thing would be is how, if this case was held in abeyance, how Wilcox came out.

[00:22:33] Speaker 04:
And depending on that, that dictates whether.

[00:22:35] Speaker 01:
I'm asking a procedural question, not for this case, about whether, in fact, they had a proceeding before the board throughout the time of the district court litigation because they're

[00:22:45] Speaker 01:
their case was essentially held in abeyance.

[00:22:48] Speaker 04:
Yeah.

[00:22:48] Speaker 04:
I don't think that that would constitute being a party before the board.

[00:22:57] Speaker 01:
But I- Before the unfair labor practice proceeding was resolved, did they have to make a whole new filing, or did they just renew their pre-existing filings?

[00:23:06] Speaker 04:
They had to refile.

[00:23:10] Speaker 04:
I believe they had to refile with

[00:23:13] Speaker 04:
the regional director, their petition and then the same petition, right?

[00:23:18] Speaker 01:
They just sort of give notice that we're now reactivating it.

[00:23:24] Speaker 04:
No, I believe that they I believe that they had to file a new petition with with the board seeking a decertification election and then and then we started this.

[00:23:33] Speaker 04:
Well, then it's not holding advance.

[00:23:34] Speaker 01:
It's not an advance.

[00:23:36] Speaker 01:
Okay, they have to file home.

[00:23:38] Speaker 01:
That's it.

[00:23:38] Speaker 01:
It's just really confusing.

[00:23:39] Speaker 04:
Yeah, I believe that that's the case.

[00:23:41] Speaker 04:
Yes.

[00:23:46] Speaker 05:
Thank you.

[00:23:46] Speaker 05:
Council unless you have anything further.

[00:23:49] Speaker 05:
No, I don't.

[00:23:50] Speaker 05:
Thank you.

[00:23:51] Speaker 05:
Thank you.

[00:23:57] Speaker 05:
We'll give you two minutes for rebuttal.

[00:23:59] Speaker 01:
Yeah, I don't think I need that procedural question after the cases were held.

[00:24:03] Speaker 01:
The cases were held for the unfair labor rights.

[00:24:05] Speaker 01:
Did you have to file.

[00:24:06] Speaker 01:
It was as if you had never found before you had to file a new one or did you have one kind of spring back.

[00:24:10] Speaker 03:
No, I've done.

[00:24:11] Speaker 03:
I've done this before this and this is what we did in this case we just emailed the regional director of the parties, we said,

[00:24:17] Speaker 03:
This that the case has been resolved.

[00:24:19] Speaker 03:
We're asking for to reopen the case.

[00:24:21] Speaker 01:
We didn't have to have a whole new filing and file any new filing.

[00:24:24] Speaker 01:
No, no, no.

[00:24:24] Speaker 01:
Run back to life or notified them that it was back to life in your view.

[00:24:27] Speaker 03:
Right, exactly.

[00:24:28] Speaker 03:
And that we were just seeking reinstatement at that point of the same case.

[00:24:31] Speaker 03:
So just to give the court a little idea, when you file a petition, you file the showing of interest confidential with the board.

[00:24:39] Speaker 03:
You file an actual form that describes the unit, describes the election you're seeking, gives election dates.

[00:24:46] Speaker 03:
We didn't do any of that.

[00:24:46] Speaker 03:
All we just said is renew our old one, right?

[00:24:49] Speaker ?:
OK.

[00:24:49] Speaker 03:
So just moving to the substance of it, Wilcox's return is like a sword of Damocles hanging over our head.

[00:24:57] Speaker 03:
And as long as Wilcox's return is out there, either thinking of it as the district court order or thinking of it as when the stay is resolved, that will mean the NLRB is not conducting itself in accordance with Article II.

[00:25:12] Speaker 03:
And that means we definitely have adversity.

[00:25:17] Speaker 03:
I would I would only I would just want to close really quickly with this is the board is really, really.

[00:25:24] Speaker 03:
Resisting any kind of a declaration, even though they say that they agree.

[00:25:29] Speaker 03:
that a declaration would be wise on the merits.

[00:25:33] Speaker 03:
And the question is why.

[00:25:34] Speaker 03:
And I think it's kind of a weird Kafka-esque position, right?

[00:25:37] Speaker 03:
They say under Collins that you can't state a harm until the president has evidenced a desire to fire someone or actually fired someone.

[00:25:45] Speaker 03:
And then when the president fires someone, they turn around and say, oh, well, if it's too late, you can't state a case.

[00:25:49] Speaker 03:
So at what point could you state, possibly state, a case under the board's position?

[00:25:53] Speaker 03:
I don't know.

[00:25:55] Speaker 03:
OK.

[00:25:55] Speaker 03:
Any other questions?

[00:25:56] Speaker 03:
Thank you.

[00:25:58] Speaker 05:
Thank you, counsel.

[00:25:59] Speaker 05:
Thank you to both counsel.

[00:26:00] Speaker 05:
We'll take this case under submission.