blogged about the D.C. Circuit's ruling in Noel Canning v. NLRB (pdf) that
President Obama's three 2012 recess appointments to the
National Labor Relations Board are unconstitutional. The
consequence of that decision was to invalidate the NLRB decision
against Noel Canning for lack of a quorum of NLRB members. The
decision also cast a dark cloud over many other NLRB decisions, as
well as the recess appointment of Consumer Financial Protection
Bureau head Richard Cordray.
As we mentioned,
the Solicitor General already filed a
petition for certiorari in Noel Canning. The National
Chamber Litigation Center has just filed a brief in
response—the first time that Chamber lawyers have ever
directly represented a member company before the Supreme
The Chamber's brief (pdf) agrees that the D.C.
Circuit's decision is worthy of Supreme Court review, and
explains why the D.C. Circuit's decision should be upheld.
Under the current schedule, the Supreme Court will consider the
petition during the June 20, 2013 conference and possibly act on it
in the orders list on June 24. If the Solicitor General waives the
right to file a reply brief, however, the petition could be
resolved a week earlier, on June 17.
In related news, in another case, the Third Circuit agreed with
the D.C. Circuit's conclusion that the Constitution permits
recess appointments only during "intersession
breaks"—that is, during periods between sessions of the
Senate. As with the 2012 recess appointments at issue in Noel
Canning, the 2010 recess appointment at issue in the Third
Circuit case, NLRB v. New Vista Nursing &
Rehabilitation (pdf), was made during a break in the
middle of a session. Judge Smith wrote the decision, which Judge
Van Antwerpen joined. Judge Greenaway dissented. Presumably, the
Solicitor General will file a petition for certiorari in New
Vista asking that the case be held pending the outcome of
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In a June 20 decision, the Texas Supreme Court applied the economic loss rule to preclude a direct claim for negligent misrepresentation by a construction contractor against an owner's architect based on flawed design documents.