More than 30 workplace disputes, including one involving a national wholesale company, are now on hold in a federal appeals court in Washington as the U.S. Justice Department mulls whether to challenge a ruling that voided President Barack Obama's recess appointments to the National Labor Relations Board.
A three-judge panel of the U.S. Court of Appeals for the D.C. Circuit on January 25 concluded in Noel Canning v. NLRB that the president's recess appointments to the labor board exceeded presidential authority. Since then, the circuit has ordered 34 lead cases held in abeyance pending the resolution of the recess appointment dispute, according to the court.
For the employees and companies in those disputes, the wait is on. The deadline for a petition for rehearing in the D.C. Circuit is March 8, and there's an April 25 deadline to file a petition asking the U.S. Supreme Court to review the D.C. Circuit ruling. Appellate courts in Philadelphia and Richmond are expected to hear challenges to the NLRB recess appointments in late March.
The D.C. Circuit hasn't yet decided whether its decision in Noel Canning should have a retroactive effect on pending cases. The court also hasn't yet determined another issue: in what circumstance, if any, did an employer forfeit argument over the lawfulness of the recess appointments if the issue wasn't brought up earlier? A lawyer for the NLRB asked the D.C. Circuit earlier this week for more time to assess the court's decision on pending labor disputes.
In one pending dispute that the D.C. Circuit put on hold, lawyers for Costco Wholesale Corp. asked the D.C. Circuit to review a labor decision that concluded, among other things, that an employee rule concerning electronic statements transgressed the law.
Costco, the labor board said, violated the law in maintaining a rule that prohibited employees from electronically posting statements that "damage the company…or damage a person's reputation."
The labor board said "there is nothing in the rule that even arguably suggests that protected communications are excluded from the broad parameters of the rule."
Under those circumstances, the board determined, employees would "reasonably" conclude the rule restricts certain protected communication—such as statements critical of Costco's treatment of its employees.
A lawyer for Costco, David Ross, a Seyfath Shaw partner in New York, wasn't immediately reached for comment today.
The D.C. Circuit decision in Noel Canning, which restricted the definition of a "recess" to intersession recesses only, didn't mention the president's controversial designation of Richard Cordray to lead the Consumer Financial Protection Bureau.
Next week, lawyers for the State National Bank of Big Spring and co-plaintiffs, are expected to file court papers in Washington addressing the merits of Cordray's appointment. The bank's attorneys, including O'Melveny & Myers partner Gregory Jacob, have until February 13 to respond to DOJ's effort to have the case dismissed.
On the appellate level, the attention will turn to the U.S. Court of Appeals for the Third Circuit, in Philadelphia, and the U.S. Court of Appeals for the Fourth Circuit, in Richmond, in the coming weeks. The Fourth Circuit has set argument for March 22; the Third Circuit could hear its case several days earlier.
Beth Brinkmann, a top DOJ civil division appellate lawyer, is tied up in both of those appellate cases. Brinkmann argued for DOJ in the Noel Canning case against Jones Day partner Noel Francisco and Miguel Estrada, co-chair of the appellate and constitutional law practice at Gibson, Dunn & Crutcher.
Earlier this week, the Supreme Court declined to wade into the dispute over recess appointments. Any divide among the circuit courts could bolster the argument that the high court should review the lawfulness of Obama's recess appointments.