Sweeping Trump changes could render First Amendment labor challenge in Sixth Circuit moot

CINCINNATI (CN) — President Donald Trump’s broad changes to government administration may have made an industry trade group’s First Amendment claim in the Sixth Circuit moot.

The Associated Builders & Contractors Inc. of Michigan appeared before a three-judge panel of the Sixth Circuit on Thursday morning, attempting to revive its case against Jennifer A. Abruzzo, the former general counsel of the National Labor Relations Board. Trump fired Abruzzo on Monday, dramatically altering the case at the eleventh hour.

“We actually are a busy court up here, and we have a lot of things going on, and, you know, spending our time on a case that really doesn’t make any difference — which, to me, it doesn’t make any difference here — I don’t particularly like,” U.S. Circuit Judge Richard Griffin, a George W. Bush appointee, told National Labor Relations Board attorney Tyler Wiese during the 30-minute hearing.

At issue was a memo Abruzzo issued called “The Right to Refrain from Captive Audience and other Mandatory Meetings,” on April 7, 2022, expressing her desire to prohibit mandatory meetings where employers weigh in on employees’ ongoing organization efforts.

The industry trade group filed a federal lawsuit, claiming Abruzzo exceeded her authority and violated its First Amendment rights by issuing the memo. A federal judge dismissed the case on July 31, 2023, for lack of subject-matter jurisdiction and standing, prompting the appeal to the Sixth Circuit.

But with Abruzzo gone, the appeals panel openly wondered about the status of the case.

U.S. Circuit Judge David McKeague, another George W. Bush appointee, asked ABC lawyer Buck Dougherty if the case would be rendered moot if the memo were simply removed from the board’s website.

“That’s certainly the relief we’ve requested,” said Dougherty, of Texas’ Austin–based Liberty Justice Center.

But Wiese pushed back on that line of thought.

“It’s the principle of it, Your Honor,” Wiese said. “The general counsel has been issuing these type of memoranda since the 1970s.”

Complicating the issue is that there is no permanent replacement for Abruzzo yet.

“Can we wait 60 days to issue an opinion to see if general counsel, the new general counsel, reverses course and cleans up this matter?” Griffin said. “Would that be a good course of action for us to take, just wait a little bit?”

Wiese answered that would be prudent.

U.S. Circuit Judge Joan Larsen, a Trump appointee, questioned Dougherty about ABC’s standing, which was a basis for the dismissal in federal court.

“In order to have associational standing, you have to identify at least one member who was planning to have some concrete plan to hold a meeting at which they would have delivered the speech that you want to deliver, and I don’t see that alleged anywhere in your complaint,” Larsen said.

Dougherty noted that ABC’s designation as a statewide trade association changes the scope of that argument.

“It’s more than it’s just when there’s a unionization movement,” Dougherty said. “So, I think that is critical, and I think for that reason, we have shown associational standing in the complaint itself.”

ABC, in its brief, claims Abruzzo has embarked on a public campaign to transform the National Labor Relations Act to favor unions instead of employers.

“Abruzzo’s attempt to overhaul federal labor law has not been in accordance with her valid statutory authority as general counsel to investigate and prosecute cases once unfair labor practice charges are filed,” ABC says in the brief.

The board, in its brief, states the duties and the responsibilities of the general counsel and the board are clearly laid out by the National Labor Relations Act. It says that the district court correctly found that Abruzzo issued the memo under her statutory authority “and ABC would not be wholly deprived of its rights if required to go through the prescribed administrative process.”

The appeals panel took the arguments under advisement. There is no timetable for a decision.

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