By:  Nicholas R. Clements, Esq.

The Supreme Court announced today that it will hear the pivotal labor relations case, NLRB v. Noel Canning, during its 2013-2014 term.  Seyfarth Employer Labor Relations bloggers have written extensively about the Noel Canning matter since January 25, 2013.  See, e.g.,  here and here.  On that date, the U.S. Court of Appeals for the D.C. Circuit held that the recess appointments of National Labor Relations Board members Sharon Block and Richard Griffin, as well as former member Terence Flynn, were unconstitutional because they were made while the Senate was not in an intersession recess and the vacancies the appointees filled did not begin during an intersession recess of the Senate.   Judge David Sentelle of the D.C. Circuit Court wrote in his opinion that the administration’s interpretation of the recess appointment power would give the President “free rein to appoint his desired nominees at any time he pleases, whether that time be a weekend, lunch or even when the Senate is in session and he is merely displeased with its inaction.”

When the Court hears the case next term, the Justices will decide whether these recess appointments violated the Constitution and the National Labor Relations Act (“Act”).  If the Court upholds the D.C. Circuit court’s decision, the ramifications could be far-reaching: several hundred decisions and orders made by the Board since January 4, 2012 may be invalidated, and it could moot more than a hundred currently-pending cases in the various circuits of federal Court of Appeals.  Additionally, because recent Presidents have frequently utilized recess Board appointments over the past decade, many more decisions could also be in jeopardy.  According to Solicitor General Donald Verrilli, even more consequential could be the status of 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.  Needless to say, the Seyfarth Employer Labor Relations bloggers will be continually monitoring for updates during the course of the next year.  Stay tuned!