The National Labor Relations Board and the Department of Justice need more time to examine the U.S. Court of Appeals for the D.C. Circuit’s recent decision on President Barack Obama's recess appointments and how it could affect the outcome of other cases, a government lawyer told a panel of judges Tuesday.
NLRB attorney Heather Beard told the three-member panel that there were several potential implications from the January 25 decision in the Noel Canning v. NLRB case that Obama's three recess appointments to the agency in January 2012 were unconstitutional.
But in the case at hand Tuesday, Hyundai America Shipping Agency never raised the recess appointments argument and so the issue was not briefed, Beard said. The NLRB and DOJ "need time to provide its considered views on the topic," and were granted 30 days to do so in another NLRB case, Beard said.
While the government punted on the issue, Hyundai's attorney argued that the company should be able to raise the Noel Canning ruling in its case, even though it concerns a different board member appointed during a recess in 2010.
The Noel Canning ruling was a "new development" and "goes to the issue of whether the board had a valid quorum," attorney Thomas Lenz said. "This opinion we feel does apply to our case as well."
The attorneys addressed the issue briefly in oral arguments today because the panel judges instructed the lawyers, just days ago, to address the Noel Canning ruling in other cases.