U.S. SC to consider case over Obama's NLRB recess appointments

By Jessica M. Karmasek | Jun 24, 2013

WASHINGTON (Legal Newsline) -- The U.S. Supreme Court will decide if President Barack Obama's recess appointments to the National Labor Relations Board are unconstitutional.

The nation's high court, in a 14-page order list released Monday, granted the Obama administration's petition for a writ of certiorari, or review.

"In addition to the questions presented by the petition, the parties are directed to brief and argue the following question: Whether the President's recess-appointment power may be exercised when the Senate is convening every three days in pro forma sessions," the court wrote in regards to its review.

The court will consider the case in its 2013-14 term.

In April, Solicitor General Donald B. Verrilli Jr. filed a 31-page petition on behalf of the NLRB.

The U.S. Department of Justice takes issue with 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 the petition.

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.

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 to it. 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 argues that 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."

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."

The U.S. Chamber of Commerce, which is helping to represent Canning in the case, said Monday it welcomes the high court's review.

Because of the uncertainty about whether the decisions issued by the NLRB are valid, the Chamber had urged the government to seek Supreme Court review.

"We warned last year that by appointing these members to the NLRB in such a controversial fashion, a cloud of uncertainty covered the agency and its work," said Thomas J. Donohue, president and CEO of the U.S. Chamber.

"We fought on behalf of our member in the D.C. Circuit and the court agreed with us. We are ready to fight for our member before the nation's highest court."

The Chamber's Institute for Legal Reform owns Legal Newsline.

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

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