As we reported previously, the U.S. Court of Appeals for the District of Columbia ruled that President Obama’s 2012 recess appointments to the National Labor Relations Board were unconstitutional because the Senate was not truly in “recess” as that term is intended under the Recess Appointments Clause. As a result, decisions issued by the NLRB over the past year are subject to challenge, because the NLRB has not had the requisite quorum of at least three validly-appointed board members since January 2012.
When we reported this decision in January, we predicted that the Obama administration would appeal this decision; yesterday the NLRB issued a press release stating that it will seek to appeal the decision directly to the U.S. Supreme Court rather than request an en banc rehearing from the D.C. Circuit.
The deadline for filing the NLRB’s petition for certiorari with the U.S. Supreme Court is April 25, 2013. Although the Justices have the authority to grant or deny review, it seems likely that they will accept the case for review, given the importance of this issue. Still, the Court likely will not hear arguments on the issue until its next term (starting in October 2013). We will continue to keep you posted as this case develops.