NFIB Legal Center is batting 1000 in the Supreme Court this week!

At the beginning of the week, we were waiting anxiously for three cases with potential to impact small business. On Monday we received two of those decisions—both victories. And Tuesday morning we received the third—another win! Here is the recap:

(1)   Vance v. Ball State – This was a major victory for small business because it will help employers fend off frivolous harassment suits. The case concerned the definition of a “supervisor” under a federal statute. The Court had to decide whether anyone who oversees the work of another employee is a supervisor, or whether that person must also have some say in promotion, demotion, termination etc. NFIB argued in its brief that a broad definition of a supervisor would open the door for disgruntled employee lawsuits. We were immensely pleased with the Court’s decision on Monday limiting the definition of a supervisor to those who have a say in termination, which will help curb frivolous harassment suits.

(2)   University of Texas Southwestern Medical Center v. Nassar – Here the University of Texas was sued because a doctor did not get a position he was seeking. The doctor alleged that the University denied him this position at least in part because he had brought a claim of racial discrimination—never mind the fact that the university had made its decision before he brought the racial discrimination claim. NFIB argued in its brief that an employer should not face liability for an alleged retaliatory decision unless it can be proven that the decision was taken specifically with a retaliatory motive. The Court agreed with us, and handed down an important victory for small business employers.

(3)   Koontz v. St. John’s River Management District – In this case the Supreme Court considered whether government can deny a building permit (or some other land use permit or zoning approval) on the ground that the landowner has refused to submit to an extortionate demand for money. Here a Florida state agency denied an entrepreneur’s permit after he refused to agree to hire contractors to improve public property as a condition of getting his building plans—for a commercial development—approved. That requirement was completely unrelated to any impact his development plans would have on the public. Accordingly, the Supreme Court recognized that the agency could not deny his permit simply because he refused to capitulate to this extortionate demand. This is a big victory for landowners because the decision prevents government from holding our property rights hostage.

In addition, the Supreme Court has announced this week that it will hear arguments in Noel Canning v. NLRB, which is another important case for small business. NFIB urged the Court to take up this case. Earlier this year we received a great decision from the D.C. Circuit Court of Appeal, holding that President Obama had acted unconstitutionally in appointing new members to the National Labor Relations Board without seeking advice and consent from the Senate.

This will likely be the most important case on Presidential powers in many years. And its importance cannot be overstated because it ultimately goes to whether or not the President can pursue his regulatory agenda without abiding by the Constitution’s checks on his powers. As such, the case is of tremendous practical importance. If the Court affirms the Court of Appeals’ decision in this case, this will mean that all decisions from the NLRB—since the President’s unconstitutional ‘recess appointments’—are most likely invalid. So, the President’s labor agenda hangs in the balance. Visit for the latest on these and other decisions.

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About Luke Wake

Luke A. Wake is a senior staff attorney at the NFIB Small Business Legal Center. Wake has particular expertise on environmental and land use issues, and has worked on numerous other constitutional issues and matters of importance to small business owners. He is an ardent defender of private property rights, which he believes are essential to the free enterprise system and the foundation of American liberty. As a strong advocate of individual rights and economic liberties, he has built his career defending small business interests. Since joining the NFIB Legal Center, Wake has focused on a whole host of issues, from employment law matters to regulatory compliance. In addition to serving as a resource for small business owners, Wake remains committed to the Legal Center’s pledge to ensure that the voice of small business is heard in the nation’s courts. He is also working to advance small business interests in law review articles, including publications in the Berkeley Journal of Law & Ecology, the Texas Journal of Law and Politics, and Competition Magazine. See R.S. Radford & Luke A. Wake, Deciphering and Extrapolating: Searching for Sense in Penn Central, 38 Ecology L.Q. 731, 746-747 (2011); Damien M. Schiff, Luke A. Wake, Leveling the Playing Field in David v. Goliath: Remedies to Agency Overreach, 17 Tex. L. Rev. & Pol. 97 (2012); Jarod M. Bona and Luke A. Wake, The Market-Participant Exception to State-Action Immunity From Antitrust Liability, J. of Antitrust and Unfair Competition of the State Bar of Ca., Vol. 23, No. 1, 156 (Spring 2014); James S. Burling and Luke A. Wake, Takings and Torts: The Role of Intention and Foreseeability in Assessing Takings Damages, in Condemnation 101: Making the Complex Simple in Eminent Domain 449-51 (ALI-ABA Committee on Continuing Professional Education eds. 2011). Before joining the Legal Center’s team, Wake completed a prestigious two-year fellowship as an attorney in the Pacific Legal Foundation’s (PLF) College of Public Interest Law. Wake is a graduate of Case Western Reserve University School of Law in Cleveland Ohio. He is a member of the California Bar, the District of Columbia Bar, and the U.S. Supreme Court Bar. He completed his undergraduate studies at Elon University in North Carolina in 2006 where he focused on political theory and corporate communications.
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One Response to NFIB Legal Center is batting 1000 in the Supreme Court this week!

  1. Pingback: NFIB Legal Center’s Winning Streak Continues with Three Victories in Two Days! |

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