Nicole G. Berner

570 U.S. 744 (2013)

Windsor is the seminal constitutional law case striking down the Defense of Marriage Act (DOMA), which limited federal recognition of marriage to opposite-sex couples. The plaintiff in this case, Edie Windsor, and wife Thea Spyer were together for forty years before marrying in 2007. Their marriage was recognized under New York state law but not under federal law, due to DOMA. After Spyer predeceased Windsor, the Internal Revenue Service imposed a whopping $363,000 tax on her estate. Prevailing tax law exempted most widows and widowers from paying taxes on their spouses’ estates, but because of DOMA Windsor faced an enormous tax burden. Ms. Berner, on behalf of every large labor union in the United States, submitted an amicus brief in Windsor’s favor, arguing that DOMA unfairly discriminated against LGBTQ+ workers. The Supreme Court held DOMA violated the Due Process Clause of the Fifth Amendment.

325 F. Supp. 3d 1269 (N.D. Fla. 2018), order enforced, No. 1:18-CV-152-MW/GRJ, 2018 WL 7506109 (N.D. Fla. Nov. 5, 2018) (Walker, J.)

Ms. Berner and a team of lawyers sued the state of Florida for conducting English-only elections in violation of the Voting Rights Act (VRA). Under the VRA, states cannot make voting contingent on English-speaking ability. The plaintiffs represented by Ms. Berner, Spanish-speaking individuals living in Florida, argued that the state violated the VRA by not providing Spanish-language election materials. The district court agreed, granting a preliminary injunction. To ensure compliance with the VRA, Florida then issued Spanish-language election materials, including ballots and voter assistance pamphlets. Thanks to Ms. Berner’s advocacy, Spanish-speaking Floridians are now better able to exercise their fundamental right to vote.

857 F.3d 554 (4th Cir. 2017) (Gregory, C.J., and Niemeyer, Motz, Traxler, King, Agee, Shedd, Keenan, Wynn, Díaz, Floyd, Thacker, and Harris, JJ.), vacated and remanded sub nom. Trump v. International Refugee Assistance Project, 130 S. Ct. 353 (2017)

During his first year in office, former President Trump issued a series of executive orders barring individuals from several majority-Muslim countries from entering the United States. The “Muslim ban,” as it came to be known, caused an enormous public outcry, with challenges filed immediately in courts across the nation. Ms. Berner drafted an amicus brief on behalf of the SEIU outlining how the ban affected nine union members. This brief was enormously significant because, at the time, many advocates struggled to provide evidence of the deleterious effects of the ban. The district court granted a preliminary injunction, which was affirmed by the Fourth Circuit. The case was then appealed to the Supreme Court. The Court vacated the case on mootness grounds because the challenged executive order was no longer in effect.

539 U.S. 558 (2003)

Lawrence was a landmark LGBTQ+ rights case finding that same sex couples have a right to engage in private, consensual activity under the Due Process Clause of the Fourteenth Amendment. Pre-Lawrence, a number of states criminalized same-sex sexual relations, typically referred to as “anti-sodomy laws.” Lawrence, the plaintiff, was arrested after police raided his home and discovered him engaged in same-sex sexual activity. He challenged the constitutionality of the Texas law behind the arrest, appealing the case all the way to the Supreme Court. Ms. Berner was part of the appellate litigation team representing Lawrence, fighting to establish the constitutional right to privacy for same-sex couples. This historic case liberated same-sex couples from fear of arrest for practicing intimacy.

95 F.3d 1032 (9th Cir. 2021) (Watford, Friedland, and Miller, JJ.)

Under the National Labor Relations Act, workers cannot be discharged for picketing their primary employer, known as primary picketing. In this case, janitors in San Francisco picketed outside a building owned and operated by Harvest Properties (Harvest). Harvest hired the janitors through Preferred Building Services (Preferred), the company the janitors considered to be their primary employer. Due to poor working conditions and subpar wages, the janitors elected to picket outside the Harvest building. The picketers were then fired. Their union, SEIU Local 87, represented by Ms. Berner, brought a claim before the National Labor Relations Board (NLRB), arguing that the janitors were unfairly discharged. The NLRB ruled in favor of Preferred, finding that the janitors had engaged in prohibited secondary picketing, which targets third parties rather than the primary employer). The union then petitioned for review from the U.S. Court of Appeals for the Ninth Circuit, where Ms. Berner prevailed. The appellate court found that the NLRA protected the janitors, and that the NLRB’s decision based on insufficient evidence.

661 F.3d 1139 (D.C. Cir. 2011) (Rogers, Williams, and Randolph, JJ.)

Ms. Berner served as lead counsel for SEIU Healthcare Pennsylvania as intervenor in support of the respondent, the National Labor Relations Board (NLRB). This case arose under Sections 8(a)(l) and (3) of the National Labor Relations Act (NLRA). The NLRB held that the petitioner, Manor Care of Easton, PA, LLC, violated the NLRA when it threatened and disciplined an outspoken union supporter. The NLRB found that the supervisor unlawfully confiscated union literature from the supporter, unlawfully interrogated her, and unlawfully threatened her with job loss and that the union supporter’s protected activity was the motivating factor for the discipline. Ms. Berner briefed and argued the case on behalf of the union before the United States Court of Appeals for the District of Columbia. The D.C. Circuit denied the company’s petition for review and granted the NLRB’ s cross-application for enforcement.