On Wednesday, December 10, 2014, at 10:00am, the Senate Judiciary Committee will hold a confirmation hearing for Michelle Lee, who President Obama has nominated to become Director of the United States Patent and Trademark Office. Lee was named Deputy Director of the USPTO on December 11, 2013, replacing Terry Rea, who resigned that position after being passed over by the Obama Administration for the position of Director.
Upon taking over at Deputy Director Lee performed the functions and duties of the USPTO Director, a position that was and is currently vacant. The last Director of the USPTO was David Kappos. Kappos left the agency in January 2013. Therefore, it has been nearly two years since the USPTO has had a Director, which has often been criticized as being an excessively long time not to have an agency head.
This will be the first time that Lee has had a confirmation hearing. The timing suggests that the Obama Administration and Senator Reid think that they can get Lee confirmed prior to the end of this Congressional session, which may well be the case. Assuming that this hearing will be more than just a show, there are a number of difficult questions that should be asked of Lee. Below are 12 questions that need to be asked, and a list of others that could and probably should be asked as well.
1. Why is the Patent Office secretly subjecting applications to extraordinary scrutiny?
2. What statutory authority exists for USPTO to apply extraordinary, secret scrutiny?
Recently released documents requested under the Freedom of Information Act (FOIA) show that since 2006 the USPTO has had a systematic, secret process in place to subject certain applications to an unprecedented level of review.
Lee will almost certainly point to this program as evidence of good government, but Senators shouldn’t allow that answers to suffice. Lee has in the past explained that the USPTO is working hard to make sure that only valid patent claims issue, which is admirable, but that doesn’t justify a secret program that targets certain applications without even the applicants being aware that they are being targeted.
While the program seems largely aimed to catch applications that relate to trivial devices, as well as those that relate to software and genetics where there has been an upheaval in the law, the FOIA documents also clearly show that the business method patents are caught up in this review. This is problematic because the Supreme Court specifically ruled in Bilski v. Kappos that business methods are patent eligible, so why the additional scrutiny?
Also problematic is the fact that the USPTO is placing extraordinary scrutiny on applications with long pendencies, but long pendencies are frequently caused by lengthy administrative delay and unreasonable patent examiners. Further, it is downright inexplicable why pioneering innovations are subject to secret scrutiny when the patent system is supposed to be encouraging paradigm shifting innovation.
Finally, it is unforgivable for the USPTO to subject applications “reciting a process that PTO employees… use.” In other words, if the USPTO is using a particular technology you might as well not even apply for a patent because the agency will put up so much bureaucratic red tape and extra levels of review that getting a patent will be virtually impossible. To call this a conflict of interest doesn’t begin to scratch the surface.
3. Why are the numbers of published patent applications diverted to SAWS privileged under FOIA?
The USPTO refused to provide the application numbers for published patent applications that were diverted into the SAWS program claiming privilege under FOIA exemption (b)(5), codified at 5 U.S.C. 552(b)(5), which protects an agency’s deliberative process and applies to advisory opinions, recommendations and deliberations by and through which government decisions and policies are formulated. See Letter 1 and Letter 2. Assuming that some of the information requested would fall within this exception, how is it possible that a patent application number qualifies as part of the agency’s deliberative process? The agency presumably went through some secret process to determine whether to divert one or more (potentially many) patent applications for extraordinary and heightened scrutiny. The outcome of that deliberative process cannot logically in and of itself be a deliberative process, but rather it is a conclusion.
Failure to provide the patent application numbers or otherwise alert applicants and the public is alarming to say the least. This type of secretive government behavior is unacceptable. Without any information on which applications have been secretly targeted for this exceptional and unprecedented scrutiny there is now way of determining whether there was targeting, favoritism or an arbitrary and capricious use of authority.
A lingering question remains: If the program is completely above board why did the USPTO refuse to identify published applications secretly caught up in the administrative purgatory that seems to be SAWS?
4. Do you support fee-shifting legislation to combat the perceived problem of “patent trolls”?
5. What is your definition of a “patent troll”?
During the October 2013 term the United States Supreme Court issued two important decisions in Octane Fitness, LLC v. ICON Health & Fitness, Inc. and Highmark, Inc. v. Allcare Health Management System, Inc., which granted district courts much broader latitude to award attorneys fees to a prevailing party in a patent infringement lawsuit. In fact, these two decisions largely derailed patent reform attempts in the Spring of 2014 because so much of the patent reform push was to accomplish what the Supreme Court allowed. Congressman Bob Goodlatte (R-VA) and Senator Orrin Hatch (R-UT) have already signaled that they will push hard for patent reform early in 2015. We can imagine that it will look much like the Innovation Bill that passed the House, also known as the Goodlatte patent reform bill, but why exactly fee-shifting legislation is necessary has not been answered. Still, mandatory fee shifting when a troll is involved, disclosure of investors in the funds supporting the assertion, and placement of a bond remain on the wish list of some. Such fee-shifting proposals are all thinly veiled attempts to attack securitization of patents as an asset, further chipping away at the notion that a patent provides a property right.
But all of this begs an essential question, which is who is a patent troll in the first place? One is labeled a “patent troll” whenever they are a patent owner who enforces a patent through licensing or litigation, but are Universities, independent inventors and R&D companies really patent trolls? Railing against patent trolls, whoever they are, makes for a wonderful sound bite, but legislation will need to define who is a patent troll to have any chance of addressing whatever perceived abuse is deemed unworthy.
Of course, there is an 800 pound gorilla in the room that really needs to be addressed because all of this talk about patent trolls amounts to nothing more than the most obnoxious political grandstanding. Case in point, just last week the outgoing Attorney General for the State of Nebraska was ordered to pay $725,000 in attorneys fees because of a cease and desist letter he sent ordering patent owners and their attorneys not to enforce patents in Nebraska. To call this an overreach doesn’t begin to properly characterize the abuse of power exhibited. How a State AG could think that a State can unilaterally prohibit enforcement of federal rights is nearly incomprehensible. The rush of State AGs to fight patent trolls is almost certainly symptomatic of companies going to State AGs in order to nationalize an issue in order to apply pressure on federal authorities to act. The entire push to punish so-called patent trolls should be carefully reevaluated.
6. Would a thoughtful approach to immigration reform benefit the high-tech sector, as well as the USPTO?
The USPTO has been trying to hire 1,000 to 1,500 patent examiners for many years, but the number of patent examiners the USPTO employs has risen only modestly. For example, in October 2012 there were 7,789 patent examiners and in October 2014 there were 8,411. The inability of the Patent Office to grow the number of patent examiners sufficiently to address application demand is worrisome, particularly in light of the fact that the unexamined patent backlog at the USPTO has remained unchanged for several years. Some of the problem can possibly be attributed to the misapplication of resources to serially and secretly review applications over and over again in the SAWS program. But another explanation could be that the USPTO is simply unable to hire enough scientifically trained examiners.
The high tech community has been pushing for immigration reform for years, explaining to Congress the need for an immigration policy that allows highly educated and scientifically trained individuals to come to America legally. While so much of the immigration debate is on low skilled workers who cross the Southern border, there is a crisis at every level in the technology community. America does not produce the requisite number of scientists and engineers to fuel the demand of our high-tech sector. It is hardly surprising that the USPTO, who is in competition for examiners with the same skill set, would also find it difficult to hire enough technically trained individuals.
With this in mind, Lee should be asked about the benefit to the economy generally, and to the USPTO specifically, if immigration reform were to first focus on allowing a larger number of highly skilled and highly educated workers with scientific and engineering backgrounds to lawfully come to America.
7. Can you please define the term “abstract idea” and explain how patent examiners apply the definition used by the USPTO to evaluate patent claims drawn to computer implemented methods and related systems (i.e., software patent claims)?
8. Does Congress need to step in and amend 35 U.S.C 101 to provide a more clear definition of what is patent eligible?
The law of patent eligibility has become a mess. The USPTO still has not come out with guidelines for examination in the wake of the Supreme Court’s patent eligibility decisions over the past few years. Specifically, the industry has been waiting for many months for the guidance relative to Mayo, Myriad and Alice, which continues to be on hold. Thus, it is critical to understand how the USPTO defines the critical term “abstract idea,” how patent examiners distinguish between what is merely an abstract idea and a patent eligible innovation.
Despite the Supreme Court’s best efforts to provide a decisional framework on the topic of patent eligibility, a workable test for when a computer-implemented invention is a patent-ineligible abstract idea has not emerged. In fact, the Supreme Court has consistently refused to define the term “abstract idea,” which has led many commentators to characterize the current law as being the patent law equivalent to obscenity — I know it when I see it. Such a subjective test defies a systematic, objective, even-handed and consistent application of the law and leads to inconsistent decisions.
Many in the industry think it is time for Congress to step in and provide clarity. Lee should be directly asked whether she thinks Congress should address patentable subject matter. If she says no she should be pushes to articulate a coherent test for patent eligibility that takes into account all Supreme Court precedent dating back to at least Gottschalk v. Benson.
9. Can you explain why big banks such as Bank of America and JPMorgan Chase are able to get software patent claims drawn to computer implemented methods in the wake of the Supreme Court’s Alice decision while so many other innovators are having their applications summarily rejected even though their claims are structured virtually identically?
Along the same lines as above, it has recently come to light that since the Supreme Court’s decision in Alice big banks have still been getting software patent claims and do not seem to be experiencing the same Alice patent eligibility rejections that many in other software fields face. While this could be explained by the lack of a coherent test that can be evenly applied to achieve consistent outcomes, it is ironic that big banks are able to get software patents explicitly directed to computer implemented methods when others are unable to satisfy examiners with similarly structured claims and language.
Important question about cronyism must at least be asked, particularly in the wake of how big banks and more generally Wall Street firms so consistently manage to get preferential treatment from the government. Senator Elizabeth Warren (D-MA) has continually fought against oversized Wall Street influence in government, but she is not on the Senate Judiciary Committee. Senator Sheldon Whitehouse (D-RI) is on the committee, so perhaps he will step up to the plate to inquire.
10. If confirmed you will be yet another former Google executive in the Obama Administration. What assurances do we have that Google will not have outsized influence on America’s innovation policy at a time when other U.S. innovators have split with the Google philosophy?
It is hardly a secret that the Obama Administration has hired numerous former Google executives. Google is known to be one of the primary advocates of watering down, if not outright destroying, the U.S. patent system. To a large extent Apple, Microsoft and many other Silicon Valley innovators went along with the anti-patent rhetoric perfected by the Google machine because they were facing what they called a “patent troll problem.” This caused even innovation based leaders to throw in with Google and others in an attempt to vilify innovators and a patent system run amok.
With the tide overwhelmingly flowing in an anti-patent direction, many of the most identifiable companies in Silicon Valley innovators have finally split with Google and are now coming out strong for patents and American innovation. A case in point is the Partnership for American Innovation (PAI). Recently the Partnership for American Innovation (PAI), which is comprised of Apple, DuPont, Ford, GE, IBM, Microsoft and Pfizer, submitted comments responsive to a request for public information published in the Federal Register back on July 29, 2014, titled Strategy for American Innovation. The PAI has come out to explain the critical role innovation plays in the U.S. economy. Time will tell whether this pro-innovation, pro-patent organization will be able to turn public sentiment, and more importantly influence Congress.
Given Google’s influence already within he Obama Administration there are many who are concerned that a former Google executive running the Patent Office will be a little like bringing on a fox to guard a hen house.
11. If confirmed will you have any decision-making authority with respect to policy and/or practice?
As is the case in so many other places in government, the White House is in complete control of the Patent Office, micromanaging its daily activities in a way that is unprecedented. It is an open secret in Washington that many individuals have been approached to see whether they would be interested in the position of Director, but the A-list candidates have shown no interest in the position because it is well known that the next Director of the USPTO will not have much, if any, influence on patent policy and day-to-day activities. Furthermore, it has been believed by many within the industry that the next Director will need to promote the anti-patent philosophies of Google, who has become so embedded in the Obama Administration that it is hard to know exactly where lobbying ends and government begins.
Therefore, it is critically important for the Committee to understand who will be running the Patent Office during the last two years of the Obama Administration. Based on how the Obama Administration runs other agencies it seems virtually certain that an unconfirmed Presidential advisor in the White House (i.e., a Czar) will be responsible for running the USPTO and implementing America’s innovation policy. Exactly who that person is and what, if any, influence or impact the next Director of the USPTO will have needs exploration.
12. Do you support expansion of Covered Business Method review? If so, why?
It is widely known that one A-list candidate that did step up and indicate a willingness to be the next Director of the USPTO was Phil Johnson. Rumors of an imminent Johnson appointment were celebrated within the community. A small but politically well connected group protested, claiming that Johnson was not supportive of the President’s patent reform agenda. Nothing could be further from the truth, but facts did not matter. Johnson was unceremoniously blocked by Senator Chuck Schumer (D-NY) because of a single issue; Johnson was not in favor of expanding covered business method (CBM) review. The expansion of CBM is an issue of great importance to the banks that donate heavily to Schumer’s political campaigns, which is ironic given that big banks are accumulating the very financial service software patents that Schumer has so frequently railed against for years.
Presumably, Lee must be supportive of expansion of CBM in order to have made her nomination acceptable to Senator Schumer. Therefore, the Committee should spend time exploring this issue to determine if Lee does support expanding CBM, and if so why she supports such expansion.
Confirmation hearings are to some extent political theater. The time to ask questions is limited, but there are no shortage of questions that could and should be asked. Therefore, if I were on the Committee, in addition to the above questions I would submit the follow questions to Lee to be answered in writing prior to a vote of the Committee.
What steps will you be taking to address issues of time abuse and telework abuse cited by the IG?
Many members of the public are concerned over the rise in filings and backlog of RCEs. What will you do to correct this problem?
Many members of the public are concerned over the rise pendency and backlog of ex parte appeals. What will you do reduce the backlog of appeals that has grown to some 25,000 applications?
When and how will the recent patent law harmonization discussions reach fruition such that we can expect a diplomatic conference to negotiate a treaty?
If confirmed by the Senate how quickly can we expect a new Deputy Director to be named?
When do you expect that the USPTO will achieve its patent pendency goals?
Has the USPTO solved the problem as to how it will ensure that it will always get access to all its collected user fees?
What is the time table for the USPTO to replace its legacy IT systems with new ones?
What will be the greatest challenges for the USPTO in 2015 and 2016?
What new initiatives can we expect from the USPTO if you are confirmed as the new Director?
What USPTO personnel changes, if any, are you contemplating if confirmed?
When will the USPTO publish its much anticipated guidance on patent eligibility, the so-called Mayo-Myriad-Alice guidance?
As often happens with government misdeeds, it may be the “cover-up” that is more damning.
All aspects of this secret program are absent from that written record.
I have a novel idea. How about a new law called “pay for delay”. The USPTO should pay the legal fees for all the inventor’s whose patents were illegally delayed. It would be little compensation for being down-selected.
Wow, what a bunch of sensationalist garbage. Are you actually a practicing patent attorney? Most of us in the IP community are aware that the SAWS program is absolutely not a secret. The 12 “questions” you’ve come up with are ill-informed, bordering on irresponsible. “Some of the problem [backlog] can possibly be attributed to the misapplication of resources to serially and secretly review applications over and over again in the SAWS program”. Really? You, me, and every other person even remotely familiar with what goes on at the patent office knows this is false. The backlog is a legitimate problem, and has a lot to do with both the number of examiners and inappropriate examination practices by examiners. Drawing attention away from the real problem for a “gotcha” headline is both ignorant and irresponsible. Would you really prefer that the Senate go chasing this dead end during a confirmation hearing than address the real problems at the USPTO? I could go on, but I won’t. Thanks for the laugh.
Sorry, but I simply do not believe you. Whether or not you personally feel this is “sensationalist” should not engender the visceral response and attempt to sweep this away that I see from you.
Your duty to your clients would and should create a very different response from any practitioner.
Can you identify any patent application subject to the SAWS program in which a discussion of the patent applications’ journey through this program was documented consistent with 37 CFR 1.2 (specifically, “The action of the Patent and Trademark Office will be based exclusively on the written record in the Office.”)?
You explicitly disagreed with questions 1-3 (i.e., involving the SAWS program), what about the other questions do you find irresponsible? For example, what is it about question 8 (i.e., “Does Congress need to step in and amend 35 U.S.C 101 to provide a more clear definition of what is patent eligible?”) do you find irresponsible?
Why are so many Obama administration officials from Google ?
Will you be pursuing Google anti patent agenda at the USPTO ?
If anybody who sues Google becomes a patent troll at USPTO with every claim invalidated by PTAB ?
Will Google cases be given any preference at PTAB ?
Now that Cisco has sued Arista Networks for patent infringement and selling the same switches for 1/3 the price by blatantly copying Cisco invented technology and in a lot of cases hiring the very engineers that built in at Cisco. What do you think the lesson is for weakening the patent holder rights ?
Do you think some Indian or Chinese company can do Cisco/Arista to Google in next 5 years ? By hiring talent from Google to build the same search engine ? and then the foreign company drag every patent thrown at them by Google for infringement in PTAB — with BRI , plus multiple bites at the same patent with joinder loophole ?
How will you protect individual and small business patent holder ? Or should patents be only granted and enforced by Big corporations and everyone else be labeled as patent troll ?
As I’m sure you know, that is not true. SAWS has been a well kept secret at the USPTO for years. Numerous patent practitioners have confirmed to me that they knew nothing about SAWS. So your conclusion without any evidence is hardly compelling evidence that I am incorrect or that patent practitioners have known about SAWS.
You also take issue with my correct assertion that reviewing the same application up to 9 times by 9 different patent office employees is responsible in part for the backlog. Exactly how you could be so misinformed is curious. It really is simple math. If you have a finite amount of examining resources using those resources over and over again to review and re-review applications means that those resources cannot be applied to other applications. It really is a simple concept, so how it confuses you is a mystery to me. Further, if you look back at the second pair of eyes time at the USPTO it is well documented and accepted as true that when you have multiple levels of review being used it causes a backlog.
Obviously you don’t think secret government programs are a problem, which speaks volumes about your intellectual honesty and familiarity with principles of government. All of the questions presented are very important. That you don’t understand why the questions are legitimate and important doesn’t change the reality that they are.
Not sure what you mean by “you could go on” given that you provide no insight, factual support or analysis. You obviously didn’t like the article, but your comment shows more ignorance than thought. It is I who should be thanking you for the laugh.
Notwithstanding that Michelle Lee is unqualified and has her own anti-patent agenda, her personality is her worst flaw of all. It’s pure torture watching her speak (just watch her Youtube video). She’ll be loads of fun at the USPTO holiday party.
OK … petition to make special granted 02/22/2005 based upon infringement.
First Office Action in 2 years (OK … not bad for 3600).
OK … just checked the originally-filed claims … can someone say exceedingly broad.
I count 12 office actions … not great, but not the worst I’ve seen. All in all, the application was steadily worked upon … it didn’t languish. I also looked (briefly) at the other two patent publication numbers you mentioned. In case you didn’t notice the big difference is the first two numbers in the Group Art Unit. The 778 Application is being examined in 3600 whereas the other two are being examined in 2800. This explains about 80-90% of the difference.
Getting back to the ‘778 application, the claims were continually being amended, which doesn’t help matters. The last action (after reversal at the Board) included a typical (at least recently) rejection of the claims based upon Alice. I suspect that every application in 3600 is required to be rejected under Alice. In quickly looking at the rejection, it seems that the Examiner has over-simplified the characterization of invention and the Examiner’s analysis is subject to attack based upon DDR Holdings.
Let me be clear, I see nothing out of the ordinary in the prosecution history of this application bearing in mind that it is being examined in the 3600 group. This is typical — not for any other tech center — but for 3600, yes.
Finally, read what I wrote — you have mischaracterized my comments.
Paul, I took a look at your application (I presume it’s yours), I think that’s pretty messed up. 11 years. There used to be a rule that if the Board reversed the examiner on all grounds, then the examiner must allow the case and cannot reopen prosecution. But I can’t find that rule now in the current MPEP, so perhaps it’s been revised. As you know, you may have to file another appeal now regarding the 101 rejection, but it might be a tough one now under Alice. I feel your pain.
There used to be a rule that if the Board reversed the examiner on all grounds, then the examiner must allow the case and cannot reopen prosecution. But I can’t find that rule now in the current MPEP, so perhaps it’s been revised.
That wasn’t the rule. The rule is/was “If the examiner has specific knowledge of the existence of a particular reference or references which indicate nonpatentability of any of the appealed claims as to which the examiner was reversed, he or she should submit the matter to the Technology Center (TC) Director for authorization to reopen prosecution under 37 CFR 1.198 for the purpose of entering the new rejection. See MPEP § 1002.02(c) and MPEP § 1214.07. The TC Director’s approval is placed on the action reopening prosecution.” As I tell clients, having an examiner reopen prosecution after a reversal at the Board is very unlikely but not unheard of. I’ve probably seen it half-a-dozen times … and once very recently in the 3600 group … based upon Alice.
I would be more hopeful based upon DDR holdings. Also, from my experience, appeals that go back to the Board a second time (i.e., a first decision was already received) get acted upon much quicker.
I think the broader [sic] point here is that there exists a deeper, non-statutory animus against patents and patent applications that is philosophically driven and that has no place in a government agency.
There are in fact shadow powers at work in the Executive branch, and all other aspects of the Obama administration aside, he did run on a platform of transparency that is sorely lacking.
Awareness of the program in general cannot account for continued secrecy. That FOIA actions on specific matters are sought to be denied with a gloss of “policy protection” is unconscionable. That notice is not provided to those whose rights are directly affected is beyond the pale. If the SAWS program is merely a notification program, then why is it hidden, why is it not a part of “The action of the Patent and Trademark Office will be based exclusively on the written record in the Office.”…? And why would anyone seek to shush these questions?
The focal point here is Accountability. There is no accountability and there can be no accountability for shadow moves of this nature – for this agency on this topic. ANY Office policy that must operate in the shadows is immediately suspect. This is not a matter of privacy, or of national security, or of any other well known exception to a Rule of Sunlight.
Will you pledge not to return to Google for at least 10 years after leaving the PTO?
My questions for Miss Lee: In your current role within the Office, who do you see as wielding the power behind the scenes? Who is the puppet master?
One major problem with that rule is that there is NO consequence for violating that rule.
I had a personal case where that rule was egregiously violated as the file wrapper documentation clearly showed searches AFTER an appeal decision lacking any director approval (the Office action indicating the timing of the searches, and the subsequent admission from the examiner that director approval came after the searches – with the admission on the record).
But any art found – no matter how tenuously used in a subservient rejection is like toothpaste already squeezed from the tube: you will not put it back into the tube. You cannot pretend that the tube was not squeezed. There is no sanction for violating the rule about yet another squeeze on the tube, taking yet another bite at the apple.
In my personal case, the examiner’s new search and rejection was every bit as pathetic as the pre-appeal searches and rejections and were easily overcome and an allowance was eventually obtained for the un-amended full scope of protection that my client deserved. But the point of the matter was that my client did have to jump through extra hoops, and as others have pointed out, other applications sat while these hoops were fabricated by the Office, thus adding to the backlog.
There is a clear – and causal – relationship between the efforts of the Office in the Reject-Reject-Reject era (which is the originator of this extra-statutory SAWS program) and the rise in backlog. Yes, it is not the sole cause, as the value of patents was otherwise becoming more and more recognized, and more and more initial applications were being submitted, but the Office reaction to that rising tide, the reaction of trying to reject its way out of doing the more difficult work of examination is a cause of backlog.
Another Question for Ms. Lee: To what extent does the examiner’s union (POPA) influence PTO practices and policy, and how do you expect POPA to influence attempts to deal with pendency times and backlogs?
What consequences are there for any Examiner violating the rules? What consequences are there for any Examiner ignoring Federal Circuit case law?
I’m looking at something very similar. Despite the clear statement in the MPEP that the Examiner shouldn’t take a reversal as an invitation to do a new search, the record clearly shows this is precisely what the Examiner did. Again, this was in the 3600 group so I expect these types of shenanigans.
LOL … without outing myself, I’m going to nail the examiner on a finding that the Examiner made (in the new Office Action) that is inconsistent with the Board’s findings.
I find your answer less than satisfying. An examiner ignoring Federal Circuit case law is eminently (albeit perhaps timely and costly) fixable. An examiner ignoring the search protocol cannot “un-find” the search results.
That we share some experience with this only adds to my less than satisfaction with your answer. The lack of repercussions clearly means that the rule – no matter how well intended – is not and will not be enforced.
Messy globs of toothpaste are destined to continue to occur.
Don’t shoot the messenger — I’m just pointing out the flaws in the system.
Awesome comments. Thank everyone for their time and energy. DDR is nice but its still messy. I understand that specific GAU’s have different views on how to examine and it is very good that others see the problem with that. Though any application must qualify for fast track in the proper manner. A 14 day turn around from when the app. hits the examiners desk to a full answer of issuance is very very questionable. Again no request no grant and no qualification to examine in that manner.


TIMOTHY J. MAYOPOULUS, DAVID C. BENSON, PASCAL BOILLAT, and FEDERAL NATIONAL MORTGAGE ASSOCIATION, Defendant.
On January 2, 2018, Plaintiff Otis Williams, III, filed his complaint and an application to proceed in forma pauperis. [ECF No. 1, 2]. His application to proceed in forma pauperis should be DENIED at this time, with instructions to properly complete the IFP application.
28 U.S.C. § 1915(a) provides that “any court of the United States may authorize the commencement, prosecution or defense of any suit, action or proceeding . . . without prepayment of fees or security therefor, by a person who submits an affidavit that includes a statement of all assets.” To determine whether to grant an IFP application, the court considers the applicant's employment status, annual salary, assets (including real estate and automobiles), and financial resources available from the claimant's spouse (if any). Carroll v. Onemain Fin. Inc., No. 14-CV-14514, 2015 WL 404105, at *2 (E.D. Mich. Jan. 29, 2015). “An affidavit to proceed IFP is sufficient if it states that one cannot, because of poverty, afford to pay for costs of litigation and still provide the litigant and his or her family the necessities of life.” Id. Courts have denied IFP applications where applicants have had assets and/or income that exceed the cost of filing the complaint. Beres v. Comm'r of Soc. Sec. Admin., No. 1:14CV01448, 2014 WL 3924634, at *2 (N.D. Ohio Aug. 11, 2014) (listing cases).
Here, Williams indicated that he has received income in the past 12 months from “business, profession, or other self-employment.” [ECF No. 2, PageID 35]. After affirmatively declaring this source of income, the IFP application asked Williams to “describe … each source of money and state the amount that you received and what you expect to receive in the future.” Id. Williams, however, failed to provide this required description. Without this information, the Court is unable to determine whether Williams qualifies for IFP status.
The Court thus RECOMMENDS that Williams's application be DENIED at this time, and that Williams be instructed to submit a completed IFP application for the Court's consideration.
Either party to this action may object to and seek review of this Report and Recommendation, but must act within fourteen days of service of a copy hereof as provided for in 28 U.S.C. § 636(b)(1) and Fed.R.Civ.P. 72(b)(2). Failure to file specific objections constitutes a waiver of any further right of appeal. Thomas v. Arn, 474 U.S. 140 (1985); Howard v. Secretary of HHS, 932 F.2d 505 (6th Cir. 1991); United States v. Walters, 638 F.2d 947 (6th Cir. 1981). Filing objections which raise some issues but fail to raise others with specificity will not preserve all objections that party might have to this Report and Recommendation. Willis v. Secretary of HHS, 931 F.2d 390, 401 (6th Cir. 1991); Smith v. Detroit Fed'n of Teachers Local 231, 829 F.2d 1370, 1373 (6th Cir. 1987). A copy of any objection must be served upon this Magistrate Judge. E.D. Mich. LR 72.1(d)(2).
Each objection must be labeled as “Objection #1, ” “Objection #2, ” etc., and must specify precisely the provision of this Report and Recommendation to which it pertains. Not later than fourteen days after service of objections, the non-objecting party must file a response to the objections, specifically addressing each issue raised in the objections in the same order and labeled as “Response to Objection #1, ” “Response to Objection #2, ” etc. The response must be concise and proportionate in length and complexity to the objections, but there is otherwise no page limitation. If the Court determines that any objections are without merit, it may rule without awaiting the response.
 The case has been referred to this Court to resolve all pretrial matters pursuant to 28 U.S.C. § 636(b)(1)(A). [ECF No. 5]. A report and recommendation is appropriate here, as magistrate judges do not have authority to deny motions to proceed IFP. Woods v. Dahlberg, 894 F.2d 187, 187-88 (6th Cir. 1990).


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In Communications Workers v. Beck (1988), the Supreme Court held that the National Labor Relations Act “authorizes the exaction [from nonmember employees] of only those [union] fees and dues necessary to ‘performing the duties of an exclusive representative of the employees in dealing with the employer on labor-management issues.’” But Beck did not flesh out precisely which union expenses were mandatory (“chargeable”) for nonmembers and which were not (“nonchargeable”), and the National Labor Relations Board and the courts have been slow to precisely denominate which union activities may be supported with nonmembers’ compelled fees.
On March 1, 2019, in United Nurses and Allied Professional (Kent Hospital), the NLRB announced that unions may never charge nonmembers for union legislative or political lobbying, even if the subject of the lobbying “may in general relate to terms of employment or may incidentally affect collective bargaining.” According to the NLRB, “lobbying activity is not a representational function simply because the proposed legislation involves a matter that may also be the subject of collective bargaining.” Kent Hospital is an important decision delineating limits for nonmember employees in the private sector who wish to disassociate from the union’s political and social activities.
Do these developments herald a new era of Beck enforcement and employee free choice in the private-sector workplace? Please join us for a discussion of these issues and trends with Glenn Taubman, a long-time attorney with the National Right to Work Legal Defense Foundation, who represents Jeanette Geary, the Charging Party in the Kent Hospital case.
Operator: Welcome to The Federalist Society's Practice Group Podcast. The following podcast, hosted by The Federalist Society's Labor and Employment Law Practice Group, was recorded on Thursday, March 14, 2019, during a live teleforum conference call held exclusively for Federalist Society members.
Wesley Hodges: Welcome to the Federalist Society’s teleforum conference call. This afternoon’s topic is "Communications Workers v. Beck Revitalized." My name is Wesley Hodges, and I’m the Associate Director of Practice Groups at the Federalist Society.
As always, please note that all expressions of opinion are those of the expert on today’s call.
Today, we are very fortunate to have with us Mr. Glenn Taubman, who is Staff Attorney at the National Right to Work Legal Defense Foundation. After our speaker gives his remarks today, we’ll move to an audience Q&A, so please keep in mind what questions you have for the cases he discusses, for the topic, or for just our speaker himself. Thank you very much for speaking with us today, Glenn. The floor is yours.
Glenn Taubman: Thank you, Wesley, and good afternoon everybody. Thanks for having me and hosting this teleforum. I decided to call this talk "CWA v. Beck Revitalized" because, for much of the past ten years, private sector employees have faced a standstill in enforcing Beck rights. But recent developments at the National Labor Relations Board provide some cause for hope that this is changing. First, I’ll give some background about the Beck line of cases, and then I’ll discuss the current developments at the National Labor Relations Board. Beck rights, as most of you know, concern employees’ right to not be members of the labor union in their workplace, and employees’ simultaneous right to not fund union’s political, ideological, and non-representational activities.
In 1988, the Supreme Court held in CWA v. Beck that the compulsory dues provisions of the National Labor Relations Act should be construed in parallel with the Railway Labor Act's almost identical compulsory dues provision. And in a series of Railway Labor Act cases, starting in the 1960s, like BRAC v. Allen and Machinists v. Street and up to Ellis v. BRAC in the 1980s, the Supreme Court has reiterated that non-members of the union cannot be forced to fund non-representational activities like union political advocacy and organizing new bargaining units. In the Railway Labor Act cases, the Supreme Court made those rulings based on both a constitutional and a statutory analysis. But enforcing Beck rights has never been easy for workers covered by the National Labor Relations Act, and there are many reasons for this.
Among them, worker ignorance of these rights because unions have no incentive to inform them of the rights, peer pressure against workers who try to opt out, and union efforts to restrict resignations, due’s checkoff revocations, and the exercise of Beck rights, all of which combine to limit when and how employees exercise these rights. Unions have created an array of roadblocks, like certified mail rules, lack of financial disclosure about how the dues are actually used, and requirements that employees renew their Beck objections each year, all of which combine to make exercise of these rights difficult. But in addition to these union created hurdles, one of the biggest hurdles to employee’s exercise of their Beck rights has actually been the National Labor Relations Board, which has often been either hostile to Beck rights or glacially show in deciding the few Beck cases that get to the board from the general council.
One Beck case, Pirlott v. National Labor Relations Board, stretched on for over 20 years, with multiple appeals and two mandamus petitions to the D.C. Circuit before the Board finally acted in favor of the workers. The case that we are going to discuss in a few moments, the Kent Hospital case that was decided just last week, has so far taken nine years to litigate. And it took a mandamus petition to the D.C. Circuit to force the Board to act. Part of the reason for these extraordinary delays is that many board members see Beck cases as political hot potatoes that they would rather not handle or as cases that are somehow tangential to the Board’s real mission of certifying unions and adjudicating unfair labor practices against employers.
In the past decade, the Obama board was particularly hostile to employees’ exercise of Beck rights, and all of the litigation that employees brought was basically in a defensive posture. Which brings us to the current reason for hope that Beck rights will soon be revitalized, which is two recent developments at the National Labor Relations Board. The first is the Board’s March 1 decision in the Kent Hospital case, which I will discuss in a moment. The second is the advisory memo issued about three weeks ago by NLRB General Counsel Peter Robb, which signals that his office will try to minimize union roadblocks and make it easier for employees to exercise their Beck rights in an informed and timely manner. And both developments taken together herald a new revitalization of Beck rights. So first, let’s discuss the Kent Hospital decision of the Board.
Over nine years ago, in September 2009, Jeanette Geary and several other registered nurses at Kent Hospital in Rhode Island resigned their memberships in the United Nurses and Allied Professionals Union and objected to paying dues and fees for union activities unrelated to collective bargaining, contract administration, or grievance adjustment, citing Beck. The union responded by giving these employees a slightly reduced dues amount and some charts purporting to spell out how the major categories of union expenditures were made. The union asserted that it’s major categories of expenses were audited by a certified public accountant, but the union refused to provide Ms. Geary and the other nurses with a copy of the actual audit or the auditor’s verification letter to substantiate its reduced fee calculations. Ms. Geary then filed an unfair labor practice charge against the union.
At trial, it came out that the union was spending dues money lobbying on a host of bills and legislative proposals in Vermont and Rhode Island, including the Hospital Merger and Accountability Act that would empower state government bureaucrats to monitor and regulate hospitals, Public Officers and Employee Retirement Bill that would have raised the cap on post-retirement earnings that state-employed former nurses could earn without reducing their retirement benefits, a Hospital Payments Bill that would have provided all acute care hospitals in Kent County Rhode Island with extra funding, the Center for Health Professions Bill that would have created a bureaucracy to help diversify state employment, the Safe Patient Handling Bill that would have established rules to protect nurses from workplace injuries, a Mandatory Overtime Bill that would have prohibited hospitals from requiring any employee to work more than 40 hours a week, and finally, a Mental Health Care Funding Bill that would have increased funding for mental healthcare services at three facilities at which the union had bargaining units.
Now, it won’t come as a shock to anyone that, in 2012, President Obama’s National Labor Relations Board ruled that all of this political lobbying was chargeable to non-member Beck objectors because these expenditures were allegedly germane to collective bargaining, contract administration, and grievance adjustment. As the Obama Board said, and this is a quote, “The fact that the activity occurs within the political sphere does not change our core analysis. So long as lobbying is used to fund goals that are germane to collective bargaining, contract administration, and grievance adjustment, it is chargeable to objectors.” So the Obama NLRB said even non-members have to pay for direct union political activity.
Besides adopting this completely amorphous test for what is chargeable to non-members and despite being completely wrong on the law of chargeability as outlined in Beck and the Supreme Court’s Railway Labor Act cases, the 2012 Obama Board decision was wrong for another fundamental reason. The board members who issued that decision were illegally appointed because President Obama violated the Constitution by making purported recess appointments when the Senate was not in recess. So the initial bad 2012 decision in Kent Hospital was void under the Supreme Court’s Noel Canning decision that threw out the Obama recess appointments.
In 2013, the NLRB achieved a quorum of validly confirmed members and the Kent Hospital case was ready to be redecided. However, instead of issuing a new decision promptly, the case languished for over five years with no decision, presumably because many board members felt that the Beck issue was a hot potato and a low priority.
It was then, just this past year, that Ms. Geary filed a mandamus petition in the D.C. Circuit to force the issuance of a decision. The D.C. Circuit reviewed the mandamus petition and ordered the NLRB to respond. And it was then, one working day before the NLRB’s response was due, that the NLRB issued the Kent Hospital decision. Now, despite the long and tortured history of this Kent Hospital case, the good news is that the Board ruled 3-1 that union lobbying is never chargeable to non-members. The Board relied on a host of Supreme Court and Court of Appeals cases to recognize that lobbying is pure political activity, which is outside of the union’s representational responsibilities and duties. In other words, the Board recognized that the union is certified to represent employees, vis-à-vis their employer, not to serve as a political spokesman that will pick and choose which laws and social policies need to be enacted or repealed.
And this is true even where the legislation is closely related to a collective bargaining topic and will directly affect the bargaining of that contract. Lobbying a state legislature does not become a union representational function simply because the proposed legislation involves a matter that may also be the subject of collective bargaining.
Now, in its decision, the Board relied on a D.C. Circuit decision in a case called Miller v. Airline Pilots, a Railway Labor Act case. And what happened there is a good example of how lobbying cannot be, and should not be, chargeable to non-members. There in the Miller case the pilots’ union was lobbying Congress and federal agencies on safety issues. So you might ask what could be more important and directly related to bargaining and the pilot union’s representational function than airline safety? Yet the D.C. Circuit, Judge Silberman, rejected the union’s claim that the safety-related lobbying was somehow non-political because all pilots share a common concern with safety.
As the Court said, and I quote, “That the subject of safety is taken up in collective bargaining hardly renders the union’s government relations expenditures germane. Under the union’s reasoning, union lobbying for increased minimum wage laws or heightened government regulation of pensions would also be germane. Indeed,” Judge Silberman said, “if the union’s argument were played out, virtually all of its political activities could be connected to collective bargaining.” So I would add to that another example. For example, suppose a union lobbied against enactment of a state right to work law. The union could plausibly argue that such lobbying is intimately related to its collective bargaining agreement and its ability to enforce its existing compulsory dues clause. But no neutral observer would say that lobbying against a state right-to-work law was non-political.
The bottom line is that the Kent Hospital decision has now drawn a clear line to protect an employee’s right to not fund any political activity. This ruling is in keeping with Beck and the First Amendment-type interests that underlie all of the Supreme Court’s compulsory dues cases. Now, I want to point out that there was a dissent in Kent Hospital. The dissenter, Member McFerran, would have allowed some of the lobbying to be charged to non-members under the theory that each lobbying expenditure needs to be evaluated separately, depending upon how close or how far it is from bargaining table issues. However, her dissent is flawed for two main reasons.
First, she does not take into account the burden that her system places on workers to object year after year and litigate against a big and wealthy union year after year to try to sever out the chargeable versus non-chargeable lobbying. In other words, Member McFerran’s case-by-case system places a huge litigation burden on non-members to fight the union every year and litigate every year. Though she never recognizes it, this is a burden on the workers who must go through this difficult and expensive litigation process annually, just to reclaim a small amount of money to which they should have never been charged in the first place. By the way, I want to point out that Justice Black, in his famous decent in Machinists v. Street in the ‘60s, said the same thing, that this sort of annual rebate-refund system doesn’t protect the workers’ rights but places a huge litigation burden on them. So he said that that is why all of this forced dues systems are unconstitutional, and Member McFerran doesn’t recognize any of this in her dissent.
Secondly, the dissent is flawed because it does not cite a single federal court precedent supporting the idea that non-members can be charged for such blatantly political activity. Her only citation is to a 1999 Clinton-era Board case that barely analyzed the issue and pre-dated public sector cases like Knox, Harris, and Janus, all of which shed light on the First Amendment-type activity that employees engage in when they fight subsidization of lobbying and political activity. So in short, Kent Hospital goes a long way towards clarifying the standards of what non-member employees may owe the union and greatly reduces the amount of compulsory fees they can be forced to pay because no amount of lobbying and no amount of politics can be charged to them.
Now, the second development at the Board that I want to get to is the General Counsel memo called 19-04, GC memo 19-04. For those who may be unfamiliar with NLRB procedures, cases do not get to the Board for adjudication unless the General Counsel issues a formal complaint and brings them to the Board after a charge is filed. The General Counsel has unreviewable discretion to bring cases forward. And if they refuse to bring them forward, that’s the end of the case. Many general counsels, and certainly the ones appointed by President Obama and President Clinton, have been blatantly hostile to Beck rights and generally refuse to move these cases forward. But the current General Counsel, Peter Robb, has shown himself to be open to protecting employee rights, to make informed choices and not fund the political and social agendas they oppose.
The recent General Counsel memo advances the ball for Beck objectors in four important respects, and I will also point out that the National Right to Work Foundation has filed cases raising all of these points. So the memo that General Counsel Robb issued is actually largely in response to that pending litigation.
So the four points in the memo are, first, the General Counsel takes the position that the Board should overrule a case called Kroger and require unions to provide reduced fee information to employees upfront in initial Beck notice before they have to make choices about their membership status. This allows all workers to make informed choices as to whether to even become Beck objectors. Such upfront disclosure is only fair, given the ramifications of the choice that they have to make about joining or refraining.
And the Kent Hospital decision that we were just speaking of actually supports this view, that employees’ access to financial exposure should be expanded, as Kent Hospital held that Beck objectors are entitled to a full audit report as soon as they object.
Second, the General Counsel takes the position that the Board should overrule a case called Frito Lay, which restricted the right of employees to revoke their dues checkoff authorizations after the collective bargaining agreement expired. According to the General Counsel, any dues checkoff authorization that restricts the statutory right of employees to revoke their authorizations at the expiration of a current contract, or during a period in which no contract is in effect, is improper and unlawful.
Now, this is very important because an employee can hardly exercise his Beck rights to pay reduced fees if full union dues are flowing out of his or her paycheck via automatic payroll deduction and the employee is being prevented from revoking that checkoff and stopping the outflow of money. So this is the second point of the General Counsel memo to make it easier for employees to stop the outflow of money.
Third, the General Counsel says that a requirement that employees must use certified or registered mail to communicate their resignations or checkoff revocations to the union is unlawful restraint and coercion and that such restrictions should be challenged. This is also important because, as I mentioned at the outset, unions have become adept at using all kinds of tricks and procedures to hold people in. For example, in one recent case that went to the D.C. Circuit called IBEW Local 58 v. NLRB, the union issued a decree that employees had to show up in person at the union hall with a photo ID in order to resign their membership or revoke their checkoffs. The NLRD and the D.C. Circuit had no problem striking down that restrictive policy, but yet unions continue to try such tactics to make it harder for employees to get out.
And finally, the General Counsel says that, where a union asserts that a dues checkoff revocation is somehow untimely or invalid, the union must either inform the employee of the specific next period when a revocation would be effective or inform the employee that the request will be honored at the next available revocation period. So that is another way in which the General Counsel is saying unions cannot put down roadblocks to make it harder for employees to disassociate from the union. The bottom line of this General Counsel memo by General Counsel Robb is that it’s a great step forward in helping employees assert their Beck rights and in making it easier for them to do so based on full information.
So in summary, these two recent developments by both the NLRB and General Counsel give us hope that Beck rights will once again be honored and enforced. Partially because of the success of the Janus case that freed public sector employees from having to pay any forced dues, people have tended to forget about, or downplay, Beck rights for private sector employees. But those rights are now being revitalized and, hopefully, protected by the current NLRB. So with that long discussion, I think it’s time for me to stop and take questions. And hopefully, everybody followed with the overview and with the discussion of these two major developments at the Board. So thank you very much, Wesley.
Wesley Hodges: Well, thank you so much, Glenn. While we wait for any audience questions, Glenn, I’d like to ask you one of my own. You touched on this in your remarks already, but how difficult is it for employees to exercise Beck rights right now?
Glenn Taubman: Thanks for the question. You know, this is an issue that I would say is a little near and dear to my heart because I’ve been doing this for a long time, and it never ceases to amaze me how unions continue to come up with schemes to hold people in and to make it more difficult for them to exercise their Beck rights. I mean, back in the ‘80s, the Supreme Court decided the Pattern Makers case that said employees have the absolute right to resign their memberships at will, but yet unions have continued to try “Well, you can only resign by certified mail. You can only revoke during the window period.” The recent case that I mentioned, the D.C. Circuit case in IBEW Local 58 where the union actually adopted a policy that said, if you want to resign or revoke your dues, you have to show up in person at the union hall with a photo ID in order to resign.
Which I love that because, if you were asked to show a photo ID to vote, there would be an outcry. But they say, "Well, you need a photo ID and to show up in person in order to resign your union membership.” So you know, unions are constantly, cleverly throwing down roadblocks to make it difficult for employees to get out. And then, of course, the assertion of Beck rights is even the next step because you can only assert Beck rights if you’re a non-member. So first, you have to be a non-member. Then, you have to assert your Beck rights. So thankfully, we’re seeing a little bit less of this, but they still try with checkoff window periods and certified mail and things like that. And by the way, the Obama General Counsel upheld certified mail rules.
The new General Counsel, Peter Robb, in his memo is saying that it violates the act to force people to use certified mail because it’s just burdensome and harassing in the modern world. So the short answer is, to your question, yes, unions have tried to make it difficult, and we’re doing our best to make it as easy as possible.
Wesley Hodges: Well, thank you, Glenn. It does look like we have two questions in the audience. Let’s go ahead and move to our first caller.
Rod Sullivan: Hi, this is Rod Sullivan in Jacksonville, Florida. Glenn, I see that in the order of the court, or I should say the Board, required the union to refund ten years of overcharges to non-member employees. Do you have any idea how much money that might be, and is this going to extend beyond the single respondent in this case to other potential cases?
Glenn Taubman: So the first part of that, I do not know how much money. This is going to be a compliance issue when the case goes back to the region. So I don’t have any idea of those figures. Plus, there will be interest added on, so I really don’t know that. But the answer to the second part of your question, the remedy is for Jeanette Geary, the Charging Party, and all other similarly situated non-members. And I don’t know how big that class is within Kent Hospital, but there were other non-member who opted out along with her. All of those people should be entitled to the refunds, too. So this is an issue that will have to litigate through the compliance process when the case gets back to the regional office.
And I would add we may not be there yet because the union, of course, has the opportunity to appeal to a U.S. Court of Appeals if they choose to do so. So I do not know yet whether the union is going to appeal or not. If they appeal, well, it’ll take even longer to get those refunds. And if they don’t appeal, then we’ll be back in the regional office in Boston trying to figure out exactly what those backpay amounts are and how many other similarly situated people there are.
Rod Sullivan: And it goes back to the D.C. Circuit Court of Appeals?
Glenn Taubman: Well, they can choose. The way the National Labor Relations Board -- National Labor Relations Act operates, if you are an aggrieved party of an order of the Board, you can either appeal to the D.C. Circuit, or you can appeal to the Circuit where the case arose, which in this case would be the First Circuit, since it came out of the Boston Region and Rhode Island. So that’s up to the union at this point.
Rod Sullivan: All right. Thank you.
Wesley Hodges: Thank you, caller. Now for our second caller.
Caller 2: Glenn, I’ve got two questions. The first one is probably complicated, but does it matter, if an employee wants to revoke a dues deduction authorization, does it matter whether they’re in a right-to-work state or not? That’s the first question. And the second question is have any complaints been issued since the GC issued that new memo?
Glenn Taubman: First question is, from our point of view, from my point of view, it shouldn’t matter whether they’re in a right-to-work state or not, as far as revocations. The first thing they look at is what did the employee actually sign, and they’ll look at this. And this is an area of continuing litigation. It does get complicated. There’s an argument that, in right-to-work states, the employee’s agreement to pay is, quote, "voluntary" because he wasn’t under a compulsory dues clause. But I guess the way I look at it, it shouldn’t really matter. The employee should have the same basic rights to get out. I’m not sure if I’m answering your question, number one, but that’s my basic reaction to that.
And your second question was complaints. Yes, actually, we have seen tangible results from General Counsel Robb’s memo. Just recently in Portland, Oregon, the region there issued a complaint against the Unite Here Union, demanding that they provide upfront financial information to employees, not say choose whether you want to be a Beck objector or a non-member and then we’ll tell you what the amounts are and what the financial disclosure is. The General Counsel is now adopting our position that the unions should have to tell you upfront, first, what the chargeable versus non-chargeable allocations are and give you the financial disclosure upfront before you have to make that election.
So we are seeing tangible results, and I think we’re expecting some more complaints to come out of the regions now that this great memo has been issued. Because, as I said, this memo was actually issued in response to a lot of our litigation, and we have cases in the pipeline that will cover a lot of this.
Wesley Hodges: Here’s our next caller.
Caller 3: Glenn, thanks for the presentation. I don’t want to look a gift horse in the mouth, but this seems like an issue that is going to swing back and forth with the composition of the Board and the GC every time there’s a change in the White House. Is there a reason why that’s incorrect on this particular issue?
Glenn Taubman: That’s a great observation, and all of us in the labor law vineyards know that there’s -- they call it policy oscillation and all kinds of decisions swing back and forth. And it seems like of recent years, especially with the Obama Board, the swings have been a little bit more extreme than in the past. But I would say this. This issue of whether a non-member can be forced to pay for political activity is not one that should be subject to policy oscillation. This is very clear from the Supreme Court’s Railway Labor Act cases and from Beck, which itself said, "We’re going to follow the Railway Labor Act cases." So I don’t think this is the kind of policy that was entrusted to the Board to swing back and forth on.
I think at the end of the day, when the appropriate U.S. Court of Appeals, and maybe even the Supreme Court, get to decide this issue head on, they’re going to say, once and for all, as a matter of statutory law, if not constitutional policy or overtones, the only result is that non-members can never be forced to pay for this kind of political activity. So I hope that answers the question. I’m always the eternal optimist, and I think that when courts finally get to decide this issue they’ll say that it’s not subject to policy oscillation. There’s one way to interpret this statute, and that is non-members cannot be forced to fund politics.
Caller 3: You did answer the question. If you have one follow-up perhaps, and that is do you think it will matter whether it’s the D.C. Circuit or the First in terms of how this ends up?
Glenn Taubman: I actually don’t. I think this is all pretty clear, at least it is to me. I’ve been doing this for a long time, so it all seems clear to me, anyway. But I really don’t think it will matter. It remains to be seen whether they union is going to take the decision or whether they’re going to appeal. But I certainly feel comfortable defending this decision no matter what circuit I’m in. I’ve done a lot in the D.C. Circuit, and I’m happy to be there. But we can do it in the First Circuit, too.
Wesley Hodges: It looks like we do have another question from the audience. Here is our next caller.
Charlie Kaplan: Good afternoon, Glenn. It’s Charlie Kaplan from Sills Cummis in New York. Congratulations on your work in this case. One thing I was wondering is, as a practical matter, even after some of the things General Counsel Robb and his team have done, I found a lot of resistance at the regional level to these kinds of charges. And I was wondering what your experience has been in that regard and ways you think that we might be able to change that? By the way, this is not something I only find in the area in Beck issues, but in a lot of issues where the regions really are unhappy with the General Counsel and sort of try to do their own thing, notwithstanding what the General Counsel wants and also what the law provides.
Glenn Taubman: Right. Fantastic question. You know, when I talked at the beginning about the Board being resistant, especially in the Obama years, to Beck claims I didn’t get into the regional level resistance. And you’re 100 percent right. We have found through the decades, literally -- we’ve found that regions are often resistant to these claims. And the few claims that we’ve been able to get to the Board, we’ve always been sort of amazed that we actually got through a region. We got a complaint issued and we were able to bring these cases forward. So yes, there has been a lot of resistance in the various regions around the country. General Counsel Robb and his team are doing a fantastic job in trying to rein in some of this activity in the regions, and we hope that continues. And all we can do is keep on pushing.
You know, I sometimes liken this to a big, huge rock, and we’re just a few people with a sledge hammer bashing the rock. And I think that we just have to continue to try to enforce these rights while we have a good Board and a good General Counsel. And if the regions are resistant, then we’re going to keep appealing and doing everything we can to break down the resistance. The other side of that coin is they do have a boss, which is the General Counsel. And as I said in response to one of the other callers, we’ve already seen a complaint issued, just within days of General Counsel Robb’s memo. We had a complaint issued over inadequate union financial disclosure. I think we can anticipate more of those coming out of the region, given how many cases we already have in the pipeline.
So the regions may be resistant, but at the end of the day, they also have to answer to their boss. But it’s a great question. I know we all face it. I do a lot of work with employees trying to intervene into cases related to decertifications and withdrawal petitions. And we see a lot of resistance there from regions. But General Counsel Robb wrote a great memo about six months ago saying that employees should be allowed to intervene into these kinds of cases. So we’re seeing some changes. We’re fighting the fight, and we’re doing the best we can against this big rock.
Wesley Hodges: Thank you, caller. We do have another question. Let’s go ahead and move to our next caller.
Bob Fitzpatrick: Hi. This is Bob Fitzpatrick in D.C. I’m just curious as to whether there’s a way to incentivize the bar to take these cases, and I guess it’s a two part question. Can Board charges be brought kind of as a collective class matter, and can counsel representing such a collective class matter have a representation agreement where they get a percentage of the fund at the end of the day?
Glenn Taubman: That’s an interesting question. In a lot of these cases, there’s not huge amounts of money at stake for any individual, so only if you could turn it into some kind of class action will there be a pot there for which regular lawyers would be incentivized. I think that’s one issue. There’s also no attorney’s fees provisions under the National Labor Relations Act, you know. In Section 1983 cases, there is an attorney’s fees provision for prevailing parties. So for example, if attorneys bring Janus enforcement cases for public sector employees, if they win, they’re going to get Section 1988 attorney’s fees. In the National Labor Relations Act, there is no provision for attorney’s fees, so unfortunately, employees litigating these cases are having to pay their own legal fees. Or if they’re lucky, they get somebody like the National Right to Work Foundation to provide free legal aid to help them out.
Some of these Beck cases could be brought in federal court, and I suppose, depending upon how big a class was and so on, there could be room for a regular, private attorney to get some fees. But I think, generally, that’s not going to be a way that there’s going to be enough to incentivize private attorneys. We’ve never really seen it all these years. When Beck came out, we didn’t see it, and I’m not sure that there’s a real way to do it, other than having somebody like the National Right to Work that does it as part of our mission.
Wesley Hodges: Very good. It does look like we do have one more question, and that might be the last for today. Let’s go ahead and turn to our next caller.
Caller 6: Hi. Sorry. I missed some of the discussions, so apologies if this was covered already. But I’d like a comment on what you see as the viability of extending the Janus decision to the private sector through litigation, whether there are some current cases in the pipeline to do that or whether you think that should be attempted going forward.
Glenn Taubman: Thank you. That’s a great question, and I was wondering if I was going to get that question today. And I purposely didn’t really discuss that today because I think it’s sort of a question that could be a teleforum in and of itself. And I just thought it’s probably really out of the scope of what I wanted to talk about today. But it is a fabulous question, and it’s an important question. So the question is could a case like Janus be applied to the National Labor Relations Act. You know, that in Beck itself, the Supreme Court left open the question of whether there was state action under the National Labor Relations Act. There’s a First Circuit case called Lynn Scott that says that there is state action under the National Labor Relations Act.
There’s some really good arguments that can be made that there is state action under the National Labor Relations Act. But by the same token, that’s not a slam dunk. There is litigation, I know, that is challenging unto the Railway Labor Act, the forced dues regime there. It is something to consider. It is certainly the ultimate goal for a lot of us to free all employees from compulsory unionism and compulsory unionism abuse that comes from compelled dues to a private organization. So I think it’s a great question. I think it actually deserves its own teleforum as to how that could be -- how a litigation assault like that could be structured and formulated.
It’s certainly something that many of us who labor in these vineyards think about. And that is probably the next frontier, let us say. But for today, I stuck to just the Beck issue of how do we enforce the current protections that we do have. But great question. Thank you.
Wesley Hodges: Well, thank you so much, caller. Glenn, I turn the mic back to you. Do you have any closing thoughts for us today?
Glenn Taubman: Sure. Thanks a lot, Wesley. I really enjoyed giving the discussion today and answering the questions. Those were all really fantastic questions, so thanks to all the callers. I’m going to end on the note that that last question raised, which is what is the next frontier? We certainly want to enforce the Beck ruling. We intend to do so vigorously. There’s hope that with this Board and this General Counsel we will have a lot of opportunities to expand the Beck enforcement, and we just simply haven’t been able to do that for the last ten years because we had a Board and a Board bureaucracy that was so hostile to any Beck claims.
So that’s one of our focuses is to enforce Beck and make it easier for employees to exercise their rights in a knowing and kindly way. And at the same time, we are looking to the next frontier, which is how do we get rid of all compulsory dues, no matter what statute they’re working under? And that is something that we’re going to continue to be involved in. So we are eternally optimistic about what we do here.
Wesley Hodges: Well, thank you, Glenn. On behalf of the Federalist Society, I’d like to thank you for the benefit of your valuable time and expertise today. We welcome all listener feedback by email at info@fedsoc.org. Thank you all for joining us for this call. We are now adjourned.

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1. Appointment. Members of the board are appointed by the Governor for a term of 4 years. Appointments of members must comply with Title 10, section 8009.
A member of the board may be removed from office for cause by the Governor.
2. Meetings; chair. The board shall meet at least once a year to conduct its business and to elect a chair. Additional meetings must be held as necessary to conduct the business of the board and may be convened at the call of the chair or a majority of the board members.
1979, c. 555, §2 (NEW). 1981, c. 501, §61 (AMD). 1983, c. 413, §§126-131 (AMD). 1983, c. 553, §46 (AMD). 1983, c. 812, §§226,227 (AMD). 1985, c. 785, §B137 (AMD). 1989, c. 503, §B138 (AMD). 1993, c. 600, §A196 (AMD). 1995, c. 397, §§49-52 (AMD). 1999, c. 386, §K1 (AMD). 2003, c. 250, §A1 (AMD). 2007, c. 402, Pt. N, §3 (AMD). 2007, c. 621, §7 (AMD). 2013, c. 246, Pt. B, §9 (AMD).