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Court lacks jurisdiction to enter consent order

Virginia Lawyers Weekly//August 25, 2022

Court lacks jurisdiction to enter consent order

Virginia Lawyers Weekly//August 25, 2022//

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Although a company agreed in a stipulated settlement agreement to enforcement of an order with the National Labor Relations Board, or NLRB, and agreed that the court should enter judgment against it, there was no case or controversy because the NRLB has no interest adverse to the company that this judgment would resolve.


The NLRB petitions this court to enforce its order imposing obligations on Constellium Rolled Products Ravenswood LLC. Constellium consented in a stipulated settlement agreement to the enforcement of the order, skipping a process of agency prosecution and adjudication.

The court questioned its jurisdiction, concerned that this petition does not present a case or controversy fit for judicial resolution because the parties lack adverseness. Because the parties agree that the court has jurisdiction and should enter judgment, the court appointed counsel as amicus curiae to argue the opposite position.


When the NLRB issued its order, Constellium became subject to a legal obligation to “[c]ease and desist from” certain conduct and to take other “affirmative action.” The consent judgment the NLRB seeks only maintains this status quo by requiring Constellium to do what it is already bound to do, which all parties agree Constellium is already doing. Under those circumstances, this court’s judgment would have no “real consequences” on the parties; it would merely reiterate Constellium’s obligations under the NLRB’s order.

If this court entered a judgment, no money would change hands, Constellium would take no new actions and Constellium would not stop any existing conduct. If (and when) this court refuses to enter a judgment, no money will change hands, Constellium will have to take no new actions and Constellium will not stop any planned or ongoing conduct, bound as it is by the stipulation and order. Under these circumstances, the NRLB has no interest adverse to Constellium that this court’s judgment would resolve.

The entering of a judgment itself could be described as having “real meaning,” at least colloquially. A judgment would allow one party the future use of the court’s contempt power. Contempt proceedings might then result in money damages and maybe even jail time, which seems meaningful indeed. But the “real meaning” demands more than just an enforceable judgment that might, in some future proceeding, lead to real consequences. Parties cannot borrow against future justiciability like that. The court’s judgment in this case must require a party to act — pay money, not deport, comply with investigative demand and so on.

Yet the dissenting opinion argues that entering a judgment should suffice to create real-world consequences here. Real meaning exists, it argues, because under the statutory scheme the NLRB’s orders are not “self-executing.” And a non-self-executing order cannot be judicially enforced by contempt in a future judicial proceeding should the order be violated. So, the dissenting opinion posits, the real-world consequence is “consummating the administrative process” to give bite to a NLRB order so that a future violation will subject Constellium to the “pain of contempt.” But potential consequences in a potential proceeding cannot create real-world consequences in this one.

Further the NLRB’s petition here meaningfully differs from the long-standing practice of entering consent decrees. In cases approving a consent decree, the plaintiff files a complaint, the defendant answers denying material allegations and the parties submit a proposed consent decree that would become a binding obligation only upon the court’s approval. If the consent decree is adopted by the court, it ends an ongoing controversy in federal court between the parties. If the court rejects the consent decree, the case continues. But not so here. No dispute existed when the NLRB filed its petition.

The NLRB finally contends that the Supreme Court has reviewed a NLRB consent order just like this one. The court concludes that the passing reference to eight possible issues of jurisdiction in that decision, without explanation or rationale, does not resolve the jurisdictional question before this court and does not change its analysis.

Petition dismissed.

Dissenting opinion

Harris, J., dissenting:

Today’s majority forbids, as outside the scope of Article III, a practice that the NLRB has used for decades to resolve labor disputes. Until now, neither this court nor any other court has ever questioned our jurisdiction to enforce consent orders like this one. Indeed, year in and out, we – like every other court of appeals – routinely enforce orders exactly like this one, in a practice that the majority now says has persistently exceeded our powers. Because I cannot agree that the Constitution forbids this familiar practice, I respectfully dissent.

National Labor Relations Board v. Constellium Rolled Products Ravenswood LLC, Case No. 20-2140, Aug. 5, 2022. 4th Cir. (Richardson), from National Labor Relations Board. Gilbert Charles Dickey for Court-Assigned Amicus Counsel. Gregoire Frederic Sauter for Petitioner. Dallas Floyd Kratzer III for Respondent. VLW 022-2-197. 37 pp.

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