Seventh Circuit dismisses NLRB recess appointment challenge


Because of their potential implications for the validity of CFPB Director Cordray’s appointment, we have been following several pending cases challenging the National Labor Relations Board’s authority to take various actions based on the alleged invalidity of President Obama’s recess appointment of three individuals to the NLRB.

On December 26, the Seventh Circuit issued an opinion in Richards v. NLRB dismissing the petitions for review for lack of standing.  According to the Seventh Circuit, because the NLRB had already struck down the NLRB policies at issue, the petitioners could no longer show that they suffered an injury-in-fact necessary to provide standing. Having found the petitioners lacked standing, the Seventh Circuit ruled that it did not need to reach the legitimacy of the NLRB recess appointments.

Earlier in December, the U.S. Court of Appeals for the D.C. Circuit heard oral arguments in Noel Canning v. NLRB, another of the cases challenging the NLRB appointments, and a decision in that case is expected soon.

Another case we have been following is State National Bank of Big Spring, Texas, et al. v. Geithner, et al., which is pending in federal district court in Washington, D.C. and includes a direct challenge to President Obama’s recess appointment of Director Cordray. The case was originally filed in June 2012 by State National Bank of Big Spring, Texas and two non-profit organizations in the metropolitan Washington, D.C. area. In September, an amended complaint was filed adding as plaintiffs the Republican state Attorneys General of Oklahoma, South Carolina and Michigan. The court is now considering the CFPB’s motion to dismiss the amended complaint which was filed in November.

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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