Recently we reported on the federal D.C. Circuit Court of Appeals’ decision in Noel Canning v. NLRB, holding that certain of President Obama’s recess appointments to the NLRB were invalid. That decision calls into question the validity of numerous NLRB decisions made by a panel including these recess appointees. The court held that the appointments were invalid because they were not made during a “recess” and because the vacancies did not arise during a recess.
Last week, the Justice Department petitioned for review of the Noel Canning v. NLRB decision before the United States Supreme Court. The Justice Department asks the high Court to decide the meaning of a “recess” for purposes of the President’s appointment power (whether it has to be an inter-session recess or whether it can be an intra-session recess, as was the case when President Obama made the NLRB recess appointments) and also asks the Court to decide whether the vacancy has to arise during the recess or whether it can arise prior to the recess but be filled during the recess.
The opposition to the petition for certiorari is due May 28, 2013. The Supreme Court is not likely to issue a decision on whether or not it will grant review until after its summer recess. We will keep you posted.
