Supreme Court Docket Report - June 24, 201

Keywords: Recess Appointments, anti-bribery statute, voluntary recognition agreements, Labor-Management Relations Act, shareholders, derivatives, bankruptcy, Clean Air Act, air pollution, indian gaming,

Today, the Supreme Court granted certiorari in six cases of interest to the business community:

Constitutionality of Recess Appointments Labor-Management Relations Act—Effect of Anti-Bribery Statute on Voluntary-Recognition Agreements Shareholder-Derivative Actions—Pre-Suit Demands for Corrective Action Bankruptcy—Powers of Bankruptcy Courts Clean Air Act—Validity of Cross-State Air Pollution Rule Indian Gaming Regulatory Act—Jurisdiction Constitutionality of Recess Appointments

The Recess Appointments Clause of the Constitution gives "[t]he President . . . Power to fill up all Vacancies that may happen during the Recess of the Senate, by granting Commissions which shall expire at the End of [Congress's] next Session." Art. II, § 2, Cl. 3. Today, the Supreme Court granted certiorari in National Labor Relations Board v. Noel Canning, No. 12-1281, to decide: (1) whether the President's recess-appointment power may be exercised during a recess that occurs within a Senate session, or is instead limited to recesses that occur between enumerated sessions of the Senate; (2) whether the President's recess-appointment power may be exercised to fill any vacancies that exist during a recess, or is instead limited to vacancies that first arose during that recess; and (3) whether the President's recess-appointment power may be exercised when the Senate is convening every three days in pro forma sessions.

On January 4, 2012, President Obama invoked the Recess Appointments Clause and appointed three individuals to fill vacant seats on the National Labor Relations Board. This date fell after the Second Session of the 112th Congress began, during an intra-session adjournment in which the Senate convened every three days for short sessions without conducting any substantive business. All three NLRB vacancies had arisen before the conclusion of the First Session of the 112th Congress.

Shortly after these recess appointments, a three-member panel of the NLRB affirmed a decision by an administrative-law judge holding that Respondent Noel Canning had committed an unfair labor practice. Noel Canning filed a petition for review of the NLRB order in the D.C. Circuit. In addition to contesting the order on the merits, Noel Canning contended that the President's appointments were invalid because the Senate was not in recess within the meaning of the Recess Appointments Clause when the NLRB appointments were made. Noel Canning claimed that the NLRB's order was invalid because the Board lacked the three-member quorum necessary to issue decisions.

The D.C. Circuit granted Noel Canning's petition and vacated the NLRB's order. The court of appeals held that the constitutional authority to fill a vacancy can be used only between enumerated sessions of the Senate, and not during any other mid-session breaks. This part of the ruling was unanimous. A two-judge majority further ruled that the vacancy-filling power applies only to vacancies that open up during a formal recess between enumerated sessions, and not to any vacancies that exist during a recess. More recently, the Third Circuit reached the same conclusion.

Although the D.C. Circuit did not rule on the question whether the Senate's pro forma sessions prevented a break from qualifying as a "recess" for purposes of the Recess Appointments Clause, Noel Canning asked the Supreme Court to grant certiorari on this question in addition to those raised in the NLRB's petition for certiorari. The Supreme Court's order directed the parties to brief and argue this question in addition to the two questions presented by the government's petition.

This case is of great public importance, as demonstrated by the fact that all the parties to the case—and all the amici curiae—agreed that the Court should grant review. The D.C. Circuit's decision called into question not only every final decision by the NLRB since January 4, 2012, but also prior decisions by the NLRB with recess-appointed members, as well as decisions by other federal agencies—notably the Consumer Financial Protection Bureau, whose Director was given a recess appointment by the President at the same time and under the same circumstances as the NLRB members. In addition to its implications for a wide array of prior decisions, the case has significant forward-looking implications for the President's ability to fill vacancies using the recess-appointment power. (Mayer Brown's decision alert discussing the implications of the D.C. Circuit's ruling is available here.)

Absent extensions, which are likely, amicus briefs in support of the petitioner will be due on August 15, 2013, and amicus briefs in support of the respondent will be due on September 16, 2013.

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Labor-Management Relations Act—Effect of Anti-Bribery Statute on Voluntary-Recognition Agreements

Section 302 of the Labor-Management Relations Act, 29 U.S.C. § 186(a)(2), makes it criminal for an employer "to pay, lend, or deliver, any money or...