Hell Hath No Fury Like an NLRB Loser Scorned - Employment Law - U.S. Supreme Court
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Hell Hath No Fury Like an NLRB Loser Scorned

We all know the traditional protocols. When an appellate court issues a decision that would overrule a bunch of district court decisions, you appeal your adverse district court ruling to the appellate court.

But when it comes to the endless cycle of litigation prompted by the National Labor Relations Board (NLRB) recess appointments, the rules suddenly change.

Last year, President Obama placed three members on the NLRB during a Senate recess. Last month, the D.C. Circuit Court of Appeals concluded that the appointments were unconstitutional because recess appointments are limited to intercession recesses. (Obama's NLRB appointments occurred during pro forma sessions.)

The decision is a pretty big deal. It means that the Board lacked the requisite quorum over the last year. Without a quorum, approximately 200 Board decisions from 2012 are invalid.

HealthBridge — one of the NLRB decision losers during the time in question — asked the Supreme Court to step in and stop the district courts from enforcing the NLRB's invalid decisions. That request, according to SCOTUSblog, was promptly denied.

(Sidebar: It's worth noting that HealthBridge wasn't the winning litigant before the D.C. Circuit. That honor belongs to Noel Canning, a Washington state bottling company that challenged the appointments.)

HealthBridge's coattail-riding argument in its application to Justice Ruth Bader Ginsburg was that 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." The company went on to argue that it didn't make sense for lower courts to order compliance with the Board's ruling when the Board's authorization to act was in question.

Justice Ginsburg was not persuaded.

SCOTUSblog notes that "some 30 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." Though the D.C. Circuit issued the first ruling, there could be conflicting decisions from other circuits that would make this case ripe for Supreme Court review.

For now, however, Justice Ginsburg will force HealthBridge and other litigants to wait on additional litigation.

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