Tuesday, September 29, 2009
The Board has operated with only two members for nearly two years, since the appointments of two Board members expired on December 31, 2007. Rather than cease functioning, the two remaining members – current Chairman Wilma B. Liebman, a Democrat, and Member Peter C. Schaumber, a Republican – have continued to issue decisions in matters on which they can agree. In doing so, they drew on advice from the U.S. Department of Justice’s Office of Legal Counsel, which concluded that “if the Board delegated all of its powers to a group of three members, that group could continue to issue decisions and orders as long as a quorum of two members remained.” The Board made such a delegation in December 2007, and since that time, the two Board members remaining, acting as a quorum of the group, have issued nearly 500 decisions.
While many of those decisions have been accepted by the parties, dozens have been appealed to the federal courts of appeals on the two-member question, and decisions have been split. The U.S. Courts of Appeals for the First, Second and Seventh Circuits have all held in favor of the Board, while the District of Columbia Circuit, in Laurel Baye, held that the Board did not have the authority to act. In New Process Steel, the Seventh Circuit held that, “The plain meaning of the statute....supports the [Board]’s delegation procedure.” Today’s filings ask the Supreme Court to affirm that finding and to reverse the contrary holding of the District of Columbia Circuit.
Although far from guaranteed, the government's request for cert. definitely increases its chances. Even aside from my own personal interest in seeing this go to the Court, it's been an issue that has come up periodically for a long time and it needs to be settled once and for all (of course, Congress could clear things up too).
Hat Tip: Justin Keith & Patrick Kavanagh