Obama administration wants U.S. SC to reverse Noel Canning ruling

By Jessica M. Karmasek | Apr 26, 2013

WASHINGTON (Legal Newsline) -- The Obama administration is asking the U.S. Supreme Court to reverse a lower court's ruling on the President's recess appointments.

Solicitor General Donald B. Verrilli Jr. filed a 31-page petition for a writ of certiorari with the nation's high court, on behalf of the National Labor Relations Board, Thursday.

The U.S. Department of Justice wants the court to review the judgment of the U.S. Court of Appeals for the District of Columbia Circuit.

"Review by this Court is warranted to resolve the circuit conflict created by the decision below, to remove the resulting constitutional cloud over the acts of past and present recess appointees, and to restore the President's capacity to fill vacant offices temporarily when the Senate is unavailable to give its advice and consent," Verrilli wrote.

In January, the D.C. Circuit granted the petition of Noel Canning against the NLRB on the basis that the board lacked a sufficient quorum of members when it reached a decision regarding Canning.

That was based on the fact that Obama appointed three of the NLRB's five members without Senate confirmation on Jan. 4, 2012, with recess appointments.

But Canning argued that the Senate was in pro forma session, making Obama's appointments invalid.

In February, Congressional leaders asked Obama to take action immediately to rectify the problem.

"Until a constitutionally appointed board is seated, uncertainty will reign in labor-management relations to the determent of America's workers, employers and unions," they wrote in the letter to Obama. "Your immediate action is necessary to restore faith in the board and the Constitution's appointment process."

The letter asked Obama to nominate "four qualified individuals" and was signed by House Speaker John Boehner, House Majority Leader Eric Cantor, House Majority Whip Kevin McCarthy, Republican Conference Chairwoman Cathy McMorris Rodgers, Education and the Workforce Committee Chairman John Kline and Health, Employment, Labor and Pensions Subcommittee Chairman David P. Roe.

In a letter to NLRB Chairman Mark Pearce, the same officials asked him to have the board "immediately cease all activity" until appointments are confirmed.

"Only three things are certain if the current board continues to issue decisions," they wrote to Pearce. "Those decisions cannot be relied upon, every losing party will be justified in filing an appeal, and no prevailing party can be assured they will ever benefit from any board-ordered remedy. This uncertainty is not what the law anticipates and cannot be permitted."

The case arose out of a dispute between Canning, a Washington state Pepsi-Cola bottler and distributor, and Teamsters Local 760. The dispute concerned the negotiation of a collective bargaining agreement.

After coming to an impasse, the NLRB made a ruling that Canning considered unfavorable. Canning filed an appeal to the D.C. Circuit on both statutory and constitutional grounds.

The three-judge panel of Chief Judge David B. Sentelle and Judges Karen LeCraft Henderson and Thomas B. Griffith was unanimous.

The panel said the appointments of Richard Griffin, Sharon Block and Terrence Flynn were "constitutionally invalid," thus deciding the NLRB did not have a "quorum for the conduct of business."

The Justice Department said if the D.C. Circuit's decision stands, it could threaten a "significant disruption of the federal government's operations."

"The decision potentially calls into question every final decision of the board since Jan. 4, 2012," Verrilli wrote. "And, because many of the board's members have been recess-appointed during the past decade, it could also place earlier orders in jeopardy."

Read the Justice Department's full petition here.

The National Labor Relations Act, Verrilli noted, places no time limit on petitions for review and allows such petitions to be brought in either a regional circuit or the D.C. Circuit.

"Thus, the potential effects of the decision below are limited by neither time nor geography," the solicitor general wrote. "Moreover, those effects can also be expected to extend to a wider range of federal agencies and offices, because venue lies in the District of Columbia in virtually all civil actions seeking review of federal agency actions."

He continued, "If the decision below is allowed to stand, almost any federal officer who received a recess appointment during an intra-session recess, or who was appointed to fill a vacancy that did not first arise during the recess in which the appointment was made, could have his actions challenged in the D.C. Circuit on the ground that his appointment was unconstitutional and his official actions were ultra vires."

According to the Supreme Court case docket, a response to the Justice Department's petition is due May 28.

Earlier this month, Obama announced he planned to nominate Philip Miscimarra, a partner in the labor and employment group of Morgan Lewis & Bockius LLP, to be a member of the board.

Obama said he also plans to re-nominate Pearce and again designate him chair of the board, and nominate Harry I. Johnson III as a member.

Pearce has been chairman since August 2011. He has served as a member since March 2010.

Johnson is currently a partner with Arent Fox LLP, a position he has held since 2010. Previously, he worked at Jones Day as a partner from 2006 to 2010 and as an associate from 1994 to 2005.

In February, the President also re-nominated Block and Griffin to the five-member board.

From Legal Newsline: Reach Jessica Karmasek by email at jessica@legalnewsline.com.

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