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Labor Relations Update

U.S. Government Formally Seeks Supreme Court Review Of Recess Appointment Case

Posted in NLRB, Rulemaking

As noted here earlier, the government announced its intention to seek Supreme Court review of the DC Circuit decision which held that the President’s recess appointments to the NLRB were unconstitutional.  The 138 page document NLRB v. Noel Canning, A Div. of Noel Corp., Cert Petition (April 24, 2013) was filed with the U.S. Supreme Court yesterday. 

The petition sets forth many of the same arguments made before the Court of Appeals, and concludes with the following:

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.

Of course, those who have business pending before the NLRB know that the term “temporary” is used loosely.  The appointees at issue had held their position for over a year at the time of the dispute.   Assuming the Supreme Court grants the petition, which seems likely given all the confusion out there about the validity of the NLRB’s actions, the case will be heard in the term starting October 2013.