We have previously written about a series of cases challenging President Obama’s recess appointments of three individuals to the National Labor Relations Board because of the potential implications of those cases on the validity of President’s recess appointment of Richard Cordray as CFPB Director. The cases involve challenges to the NLRB’s authority to take various actions based on the alleged invalidity of the NLRB appointments. Here’s a brief update on the status of those cases:
Briefing is still underway in Noel Canning v. National Labor Relations Board, currently pending before the U.S. Court of Appeals for the D.C. Circuit.
In National Association of Manufacturers v. National Labor Relations Board, in which the U.S. Court of Appeals for the D.C. Circuit held oral argument on September 11, 2012, the plaintiff employers elected not to seek review of the District Court’s refusal to allow them to amend their complaint to add a challenge to the recess appointments.
In Paulsen v. Renaissance Equity Holding LLC, the U.S. District Court for the Eastern District of New York refused to rule on the constitutionality of the recess appointments in its decision issued on March 27, 2012 denying the employer’s attempt to dismiss the NRLB’s petition for injunctive relief. According to the court, the constitutionality question was not “ripe” and would not impact its decision because the NLRB had authority to bring the petition and the court had authority to issue injunctive relief regardless of the validity of the appointments.