Friday, January 25, 2013
UPDATE: Chairman Pearce just released a statement that is in line with my prediction that the NLRB would continue to decide cases despite the ruling (not that my prediction was particularly bold; the Board is just doing what it did during the two-member issue).
The D.C. Circuit just struck down the NLRB recess appointments. I haven't had time to more than glance at the decision, but it obviously has major ramifications, as--like the New Process, two-member Board issue--it holds the prospect of voiding decisions. It also could play a role with the new Consumer Financial Protection Bureau, which also had a recess appointment at the time. I suspect that what we will see next is a reprise of the New Process situation, in which the NLRB uses its nonacquiescence policy and continues to issue decisions and we'll have to wait for the Supreme Court to see what happens to those decisions. I did a rough Westlaw search and came up with 499 cases in which Members Block, Flynn, or Griffin participate, so we're talking about a lot of cases that could be in jeapardy, including subsequent ones if the Board does what I just predicted it will do.
In Noel Canning, the court agreed with the NLRB's substantive findings in the case, but that was mooted by its holding that the NLRB recess appointments were unconstitutional. After holding that it had jurisdiction to decide the matter--no small thing given the separation of power tensions at play--the court essentially held that the Senate really wasn't in recess. They defined recess as when Congress isn't in one of its regular two or three sessions. The decision is a long one and reaches out to other related appointment practices (prompting a concurrence that objected to overreach). Moreover, in a 2004 case, the 11th Cir. held to the contrary, so we might expect a Supreme Court grant of cert. if the D.C. Circuit doesn't take this en banc. On that note, the panel was quite conservative (Sentelle, Henderson, and Griffith--who, coincidentally, filled the slot that a lawyer in the case, Miguel Estrada, was originally nominated for), so it's not impossible that the full court will re-examine this. Stay tuned.
Hat Tip: Michael Lightner