Headhsot of Nicole Berner against concrete background.

Nicole G. Berner

Nominee

Nominee to the U.S. Court of Appeals for the Fourth Circuit

  • AFJ Supports
  • Court Circuit Court
  • Date Nominated

On November 15, 2023, President Biden nominated Nicole G. Berner to the United States Court of Appeals for the Fourth Circuit. Since 2006, Ms. Berner has served as the Service Employees International Union’s General Counsel, supporting workers and unions across the country. If confirmed, she will be the first openly LGBTQ+ judge to serve on the Fourth Circuit. 

Read AFJ’s Letter of Support.

Biography

Ms. Berner was born in Woking, England, in 1965. Soon thereafter, she moved to Oakland, California, where she spent the bulk of her childhood. In 1988, she earned her B.A. in Women’s Studies from the University of California at Berkeley (UC Berkeley), graduating Phi Beta Kappa. She returned to her alma mater for graduate school, graduating in 1996 with both a J.D., Order of the Coif, and an M.A. in Public Policy.

Ms. Berner is a citizen of the United States, the United Kingdom, and Israel, and has lived in all three countries. Ms. Berner and then-wife Ms. Ruti Kadish were the subject of a landmark 2000 Israeli Supreme Court case: Berner-Kadish v. Ministry of the Interior. At the time, the Israeli government refused to recognize same-sex parentage, meaning that Ms. Berner, who is not biologically related to her child, was not initially legally recognized as her son’s mother. The family appealed their case to the Israeli Supreme Court, which ruled that Ms. Berner was also her child’s legal mother under Israeli law. Thanks to this ruling, Ms. Berner and Ms. Kadish’s child was the first to be recognized as having two mothers under Israeli law. Ms. Berner’s bravery in bringing this court case testifies to her commitment to justice and her steadfast belief in equality under the law. Her efforts created a better world for LGBTQ+ families in Israel.

Legal Experience 

After law school, Ms. Berner clerked first for Judge Thelton E. Henderson of the U.S. District Court for the Northern District of California and then for Judge Betty B. Fletcher of the U.S. Court of Appeals for the Ninth Circuit. Following her clerkships, Ms. Berner moved to Israel where she worked as a visiting attorney for prominent Jerusalem-based firm Yigal Arnon & Co., representing Israeli tech companies in complex international transactions. After two years in Israel, she moved back to the U.S. and joined Jenner & Block LLP as an associate litigation attorney. In this role, she participated in trial and appellate litigation, conducting discovery, interviewing witnesses, and drafting various pleadings.

In 2002, Ms. Berner transitioned to a career in public interest, joining the Planned Parenthood Federation of America (PPFA) as a staff attorney. Ms. Berner’s practice focused largely on access to medication abortion, but she also reviewed various state and federal policy proposals aimed at expanding reproductive health care access. In 2006, Ms. Berner left PPFA to join the Service Employee International Union (SEIU). SEIU is a 2-million-member strong union dedicating to improving the lives of American workers.

Ms. Berner’s role at the SEIU is a broad one. She litigates SEIU cases in state and federal courts, as well as participating in union negotiations and representing workers and unions before various labor regulatory bodies. Ms. Berner’s issue area expertise is similarly broad: She has litigated cases under the National Labor Relations Act, Title VII of the Civil Rights Act, and the Fair Labor Standards Act as well as constitutional claims. Since joining SEIU almost two decades ago, Ms. Berner has been unwavering in her fight to protect and expand the rights of American workers.

Professional Activities and Accolades

Ms. Berner’s legal prowess has earned her numerous awards. She is an elected member of the American Law Institute, a prestigious honor given to highly qualified lawyers committed to advancing the law. She was also chosen to join the Fellows of the American Bar Foundation, an honorary society of attorneys who “have demonstrated outstanding dedication to the highest principles of the legal profession.” Only 1 percent of licensed attorneys are invited to join.

Ms. Berner has also received accolades for her work in employment law specifically. She was named one of Lawdragon’s 500 Leading Plaintiff Employment & Civil Rights Lawyers in 2021, 2022, and 2023. In 2021, she was also chosen to serve as a Fellow for the College of Labor and Employment Law, an honor reserved to “the most accomplished members of the labor and employment law community” that aims “to promote achievement, advancement, and excellence in the practice of Labor and Employment Law.”

Remarkably, given her intense legal career, Ms. Berner has consistently taken time to give back to her community. She is on the board of the National Partnership for Women and Families, as well as Jobs with Justice. The National Partnership for Women and Families aims to “support those who face the greatest barriers to equity and opportunity” and “amplify the leadership of grassroots groups and women of color who are fighting for social justice.” Jobs with Justice is similarly community-oriented and “believes that all workers should have collective bargaining rights, employment security and a decent standard of living within an economy that works for everyone.” Ms. Berner also plays an active role in Jews United for Justice, an organization dedicated to improving the lives of those in the Baltimore-DC area. In 2014, Ms. Berner received their Heschel Vision Award, which honors those who “fus[e] deep moral commitments with their activism.”

The following six cases are representative of Ms. Berner’s litigation career:

United States v. Windsor

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.

Madera v. Detzner

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.

International Refugee Assistance Project v. Trump

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.

Lawrence v. Texas

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.

Service Employees International Union Local 87 v. NLRB

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.

Manor Care of Easton, PA., LLC v. NLRB

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.

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