Respondent files brief urging Supreme Court to grant certiorari in NLRB v. Noel Canning


We recently reported that counsel for the respondent in NLRB v. Noel Canning planned to make a filing advising the U.S. Supreme Court that the respondent did not oppose the NLRB’s petition for certiorari.

That filing occurred on May 23, with respondent filing a brief stating that it “does not oppose certiorari because this case presents a constitutional question of extreme importance. The D.C. Circuit’s decision further calls into question the current authority of two major executive agencies [the NLRB and CFPB] to perform their statutory duties, a question of particular importance given that the D.C. Circuit effectively has national jurisdiction over the federal Government. Certiorari is therefore appropriate.” (footnote omitted). According to SCOTUSblog, the Supreme Court Justices will consider the certiorari petition in their June 20 conference.

The NLRB’s certiorari petition presented two questions: whether recess appointments can only be made during intersession recesses and whether the vacancy being filled through a recess appointment must first arise during the recess in which the appointment is made.

In its brief, the respondent proposes a third question presented: “Whether the President’s recess-appointment power may be exercised when the Senate is convening every three days in pro forma sessions.” According to the respondent, if the court were to grant certiorari and resolve the NLRB’s two questions in favor of the NLRB, it would not decide the validity of the three NLRB appointments made on January 4, 2012. In its brief, the respondent argues that the three appointments were invalid for the additional reason that they were made “during the Senate’s Session, at a time when the Senate had not adjourned for more than three days.” The respondent further contends that “until January 4, 2012, all Presidents to confront the issue had recognized that recess appointments are impermissible when the Senate is convening pro forma sessions every three days.”

In addition to Gary Lofland, the counsel for respondent listed on the brief include attorneys from the National Chamber Litigation Center and the Jones Day law firm. The Center is the litigation arm of the U.S. Chamber of Commerce. According to a Reuters report, Jones Day serves as outside counsel to the Center, and if the petition for certiorari is granted, it will be the first time the Chamber has represented a member company (Canning) directly before the Supreme Court.

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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