NLRB passes on rehearing in Canning and will file certiorari petition

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The National Labor Relations Board announced that it has decided not to seek a rehearing of the D.C. Circuit’s January 2013 decision in Canning v. NLRB. Instead, the NLRB, in consultation with the Department of Justice, plans to file a petition for certiorari asking the U.S. Supreme Court to review the decision. A certiorari petition must be filed by April 25, 2013. (The NLRB would have had to file a rehearing request by March 11, 2013.)

Canning held that President Obama’s three recess appointments to the NLRB were invalid and we have been following the case because of its implications for Richard Cordray’s recess appointment as CFPB Director. We believe the NLRB was wise not to seek a rehearing since the chances were slim that a rehearing before the same panel or en banc would have been granted. The D.C. Circuit has eight active judges, three of whom were on the panel that decided Canning. That means the NLRB would have needed all of the five other active judges (including two Republican appointees) to vote in favor of granting a rehearing.