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Recess appointment issue at Court (UPDATED)(FURTHER UPDATED)

(FURTHER UPDATE 7:10 p.m.   Lawyers for HealthBridge renewed their plea on Monday evening, asking that it be referred to Justice Antonin Scalia.  Such new referrals are allowed under the Court’s Rule 22.  The fact that one Justice has denied an application does not bind any other Justice, unless the matter has been referred by the first Justice to the full Court.  Justice Ginsburg did not refer the application to the full Court before denying it Monday afternoon.  With a new referral, no new documents are filed.  Such pleas are not often granted.)

(UPDATE 4:50 p.m:  Justice Ginsburg denied the application that is discussed in this post.  She acted without seeking responses from the other side.  There was no opinion, so there was no explanation.  That does not bar a request to another Justice, but such second efforts are seldom successful.)


Arguing that the National Labor Relations Board has lost its power to take any action, lawyers for a Connecticut nursing home company on Monday asked the Supreme Court to forbid a lower court from enforcing a Board order arising out of a union strike.  The application (HealthBridge Management v. Kreisberg, docket 12A769) thus put before the Court for the first time the high-profile constitutional controversy over the President’s authority to make temporary appointments of government officials — a power sharply restricted by the D.C. Circuit Court last month.

“It makes little sense,” the company’s lawyers argued, “for lower courts to order immediate action at the behest of the Board when the Board’s ability to act is in profound doubt and will be addressed by this Court…The validity of the President’s recess appointments to the Board is a question that will inevitably and quickly find itself before this Court,” in one or more cases.

HealthBridge is a firm that manages nursing homes in five Connecticut cities that have been hit by a labor strike, and are now facing a federal judge’s order to carry out a Board order to reinstate hundreds of striking workers.  The company contends that some of those workers engaged in “medical sabotage” as the labor strife developed, endangering patients.  The application, filed with Justice Ruth Bader Ginsburg as the Circuit Justice for that part of the nation, seeks to block that order pending an appeal to the Second Circuit Court.  As an alternative, the management firm suggested that the Court might want to take on the case itself immediately, and then block the order.

Justice Ginsburg has the authority to act on her own, or to share the decision with her eight colleagues — a more common step.

Even though the D.C. Circuit Court ruled that President Obama lacked the authority to appoint three Board members during a brief break in Senate proceedings last year, the application said, the Board “has made clear it will not acquiesce in the D.C. Circuit’s decision, and companies subject to final Board orders have made clear that they will not comply because of the D.C. Circuit’s decision.”   That situation demands action by the Supreme Court now, HealthBridge’s attorneys argued.

Some thirty cases have arisen in federal appeals courts around the country over the recess appointments issue, and a number are likely to be decided in coming weeks; the D.C. Circuit made the first such decision.  Those cases are already one step closer to the Supreme Court, because challenges to Board orders, after they become final, go directly to an appeals court, bypassing a U.S. District Court.   However, in the HealthBridge case, it is the temporary action of a district court judge, granting an injunction to enforce a Board’s order of reinstatement of strikers, that has now been laid before the Supreme Court.

“This is an extraordinary request prompted by extraordinary circumstances,” according to the application.  “It is indisputed that as the strikes began, some as-yet-unidentified union members engaged in unconscionable acts of medical sabotage, such as switching medical charts and removing identification bracelets from Alzheimer patients.  Nevertheless, the District Court has ordered the immediate reinstatement of all the striking workers” in response to an injunction request from the Board’s regional director, authorized by the Board itself.

Before Justice Ginsburg or the full Court acts on the application, the views of the NLRB and perhaps of the labor union involved — District 1199 of the New England Health Care Employees Union — are likely to be requested.

The Board normally has five members, but a prior Supreme Court ruling specified that the Board can only take action if it has a quorum of at least three members.  With President Obama’s three recess appointees in place, the Board has taken scores of actions over the past year, leading to challenges by employers over the validity of those actions because of the challenge to the constitutionality of the method of appointing the three members.   If those three members were disqualified, the two-member Board that would be left would be without power.   That, in fact, is why the President chose to fill those three seats after the Senate balked at acting on their nominations under the regular nomination-and-confirmation process.

Under the Constitution, the President may make appointments during a Senate recess.   But the D.C. Circuit Court ruled in late January that the President may only use that power when Congress is officially out of town between the two annual sessions of a Congress, or between Congresses, and that the President can only make a temporary appointment to a vacancy that itself arises during one of those inter-session absences of the Senate.  The Obama administration, or one or more employers, are expected to take that issue on to the Supreme Court.   The HealthBridge application, however, expedited the process, at least for purposes of temporary court orders enforcing Board actions.

HealthBridge’s lawyers said their client’s case raises two issues that are keyed to whether the Obama appointments are valid.   First, there is the question whether the President had the authority to make those appointments.  Second, if those appointments were not valid, the question would arise whether the Board may delegate to its general counsel the power to ask a court for a temporary order to carry out a Board policy.   Lower courts are divided on that point, the application said. Their case also raises a third issue, the lawyers argued: what legal test is to be applied in deciding whether the Board is entitled to such temporary relief in court.

Under federal labor law, the Board is given the authority to go to court to get a temporary order to protect the Board’s jurisdiction while it reviews a labor dispute.  That is the power at issue in the HealthBridge case.

The application told the Court that the management company had negotiated with the employees’ union over a new contract for a period of sixteen months, but then decided that the discussions were at an impasse.   After the company made its last offer to settle the dispute, the union called strike at each of the company’s nursing homes in Connecticut: in Danbury, Stamford, Newington, Westport, and Milford.   About seven hundred employees struck on July 3 of last year, the company said.  The company had warned that any striking worker would be replaced on its payroll.  It was on their way out of the care centers, the application charged, that some workers engaged in the alleged “medical sabotage.”  Only quick action by others at the centers spared the elderly patients from harm, the application related.  The incidents were reported to local police, it added.

The NLRB, through an order to its general counsel and then to its regional director, asked a federal judge to reinstate all of the striking workers, in order to preserve the Board’s authority to rule on a pending claim by the union that the management had engaged in an unfair labor practice in violation of federal law.   In opposing the Board request, the management company raised the issue of the validity of the recess appointments of three Board members.  The judge issued the order sought by the Board, concluding that the Board was entitled to “considerable deference” from the judge.  Since then, the application noted, the Second Circuit Court has refused to lift the judge’s order on a temporary basis.

Recommended Citation: Lyle Denniston, Recess appointment issue at Court (UPDATED)(FURTHER UPDATED), SCOTUSblog (Feb. 4, 2013, 12:50 PM),