Application to U.S. Supreme Court challenging NLRB recess appointments rejected by Justice Ginsburg; referral to Justice Scalia sought


Attorneys for a Connecticut nursing home company are attempting to have an application challenging the constitutionality of President Obama’s recess appointments to the National Labor Relations Board referred to Justice Scalia after it was rejected yesterday by Justice Ginsburg, acting in her capacity as the Circuit Justice for the Second Circuit.

In HealthBridge Management v. Kreisberg, Justice Ginsburg denied an emergency application filed by the nursing home company asking the Supreme Court to stay an injunction issued by the district court at the NLRB’s request requiring the company to reinstate striking workers. In the application, the company contends that it makes little sense for the company to be forced to comply with an injunction granted to the NLRB when the NLRB’s authority is in “profound doubt” and the validity of the NLRB appointments “will inevitably and quickly” be before the Supreme Court in Canning v NLRB,  the instant case  or another case. As an alternative to a stay pending a decision by the Second Circuit on the propriety of the injunction on the merits, the application asks the court to grant a stay pending its own consideration of the application as a petition for certiorari before judgment.  Both the district court and the Second Circuit had denied motions for a stay pending appeal.

We will be following this matter for further developments.

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DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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