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Commentary: Will the filibuster deal moot Noel Canning?

Newspapers are reporting that, as part of a tentative deal to preserve existing Senate filibuster rules, Senate Republicans have agreed to allow a vote on nominees to be the first director of the Consumer Financial Protection Bureau and to the National Labor Relations Board.  According to reports, under the deal, the Senate would not proceed with the nominations of Richard Griffin and Sharon Block, two of the NLRB members whom President Obama recess-appointed to the Board in January 2012.  Instead, replacement nominees would be named and voted on by the end of August.

The Court is currently considering the validity of the president’s January 2012 recess appointment of three NLRB members in National Labor Relations Board v. Noel Canning, arising out of a Pepsi bottler’s challenge to the validity of an NRLB order entered at the time the Board included those recess appointees.  Several commentators have questioned whether the confirmation of new NLRB members will “moot” the Noel Canning case.  I believe it will not, because the NLRB lost jurisdiction over the Noel Canning matter when it was appealed to the D.C. Circuit.  And based on the Court’s recent actions (and then-Solicitor General Kagan’s recommendation), I suspect the Court will proceed to decide the case.

The National Labor Relations Act provides in relevant part that, “[u]pon the filing of such petition [to review an NLRB decision], the court [of appeals] . . . shall have jurisdiction of the proceeding and of the question determined therein”; when the record is filed with that court, “the jurisdiction of the court shall be exclusive and its judgment and decree shall be final, except that the same shall be subject to review . . . by the Supreme Court.”  The statute provides a limited mechanism for the NLRB to receive additional evidence, but only upon leave of court.  The presence of this limited, explicit carve-out from the courts’ exclusive jurisdiction in such a detailed statutory scheme likely suggests there are no implicit exceptions that would allow the NLRB to revisit the matter on its own.

The courts that have addressed this and similar issues appear to agree with this understanding. Citing 29 U.S.C. § 160(e), the D.C. Circuit has written that “[a]bsent a remand, the Board may neither reopen nor make additional rulings on a case once exclusive jurisdiction vests in the reviewing court.”  There are other decisions (here and here) addressing the slightly different question of the Board’s ability to revisit a matter once a court of appeals has entered judgment or its mandate has issued.

Indeed, the Supreme Court has confronted a similar issue only recently.  During October Term 2009, New Process Steel v. National Labor Relations Board presented the question whether a two-member panel of the NLRB could exercise the Board’s authority, when three members were required to constitute a quorum.  Shortly after argument, President Obama made two recess appointments to the NLRB, providing the Board with the necessary quorum to operate.  After then-Solicitor General Elena Kagan notified the Court of the appointments, the Court asked for supplemental briefing on “the effect, if any, of the [appointments] . . . on the proper disposition of this case.”

In her letter filed on behalf of the government, Solicitor General Kagan argued that the appointments “should have no effect on the proper disposition of this case.”  She argued that the appointments “do[] not render [the case] moot,” because the appointments “do not affect the nearly 600 other cases decided by the Board” with only two members, and it remained the Board’s position that the orders were valid and entitled to enforcement.  Moreover, citing Section 160(e), she observed that “the Board no longer has jurisdiction over New Process Steel, L.P. or the other cases where jurisdiction was transferred to the relevant court of appeals or to this Court.”  She also noted that “it is unclear whether the Board has the authority to ‘ratify’ the two-member decisions en masse without reconsidering each case individually,” and that “prudential considerations . . . would weigh against the Board’s exercising such authority in view of the high risk of potential challenges to a blanket ratification order.”  Furthermore, “individual reconsideration would impose a significant burden on the Board.”  The Court went ahead and decided the case, issuing its opinion fifty-two days later.

If the Senate confirms enough new NLRB members for the Board to act, Solicitor General Verrilli will inform the Court of these developments.  But because the government’s merits brief in Noel Canning is not due until September 13, a separate letter and supplemental briefing may be unnecessary – the issue could be addressed in the brief itself.

For the same reasons that Solicitor General Kagan cited in her New Process Steel letter, I believe the odds are good that the Court will proceed to decide Noel Canning.  There are a significant number of decisions that the NLRB has lost jurisdiction to reconsider because they are being reviewed by various courts.  The government has acknowledged that mass ratification, even if available, is of uncertain validity.  And individual reconsideration “would impose a significant burden on the Board”; that will be particularly true here because the administration will be presenting new nominees rather than seeking to confirm the recess appointees who previously acted in the cases.  (Indeed, I’ve heard some accounts that Republicans are insisting on new nominees specifically to reduce the risk that the reconstituted Board will rubber-stamp the old Board’s decisions.  I wouldn’t be surprised if during confirmation hearings, Republican Senators seek assurances from nominees that they won’t engage in blanket ratifications and will consider each case on its own merits.)  That is to say nothing of the cost that individual reconsideration imposes on the parties that prevailed before the NLRB and wish to hold on to the favorable decision.  Finally, the NLRB appointed ten regional directors while its members included recess appointees, and those regional directors have in turn taken actions that are subject to challenge on the grounds they were invalidly appointed.  In view of those considerations, the Court may well conclude, as Elena Kagan argued in New Process Steel, “the appointments of [new NLRB] Members . . . should have no effect on the proper disposition of this case.”

Recommended Citation: John Elwood, Commentary: Will the filibuster deal moot Noel Canning?, SCOTUSblog (Jul. 16, 2013, 5:33 PM),