Other courts

  • May 14, 2013
    Guest Post

    by Ann C. Hodges, Professor of Law, University of Richmond

    Justice delayed is justice denied. This commonly used axiom best describes the enforcement of the National Labor Relations Act since 2007. For 27 months beginning in late 2007, the enforcing agency, the National Labor Relations Board operated with only two of its five positions filled as a result of legislative paralysis and lack of action by the executive branch.

    In June 2010, the Supreme Court, in New Process Steel v. NLRB, invalidated over 600 cases decided by the Board during that time, holding that the delegation to power to the two members before the expiration of a third member’s term in 2007 was invalid. The Board must have at least three members to act, according to the Court. 

    Maintaining confirmed members on the Board has proved to be extremely challenging in recent years.  Nominations have not received high priority and confirmation has proved extraordinarily difficult, for many of the same reasons that nominations to other agencies and federal courts have failed.

    As a consequence of the inability to obtain confirmation of nominees, President Obama has resorted to recess appointments, like many presidents before him. Yet the D.C. Circuit cast serious doubt on the tactic in its unprecedented January 2013 decision in Noel Canning v. NLRB, which held the most recent recess appointments invalid because the Senate was not in full recess between sessions.

    The NLRB currently has only three members and only one of those is not a recent recess appointee subject to the Noel Canning decision. The sole confirmed member’s term expires in August.

  • May 13, 2013

    by Jeremy Leaming

    Beyond barking about alleged Obama administration ethical lapses, congressional Republicans are continuing to cultivate the primary purpose of their agenda – obstruct, hobble and otherwise prevent all three branches of government from functioning.

    Sen. Minority Leader Mitch McConnell (R-K.Y.) early in President Obama’s first term told a right-wing gathering that Republicans’ primary goal was to prevent a second Obama term. Obviously that goal was not met.

    Nevertheless, the Republican Party, which has grown even more exclusive, largely concerning itself with the interests of the super wealthy or corporate interests, is bent on doing everything it can to ensure that any efforts to help the middle class and the poor do not make much headway.

    One way to do this is to fight efforts to change the make-up of the federal courts, to ensure they remain as business friendly as possible. That’s part of the reason why Senate Republicans have obstructed Obama’s judicial nominations and created a crisis on the federal bench with vacancies hovering over 80 for years. As noted here the president has not been able to place a judge on the august U.S. Court of Appeals for the District of Columbia Circuit, and there are four vacancies on the 11-member court. Sen. Chuck Grassley (R-Iowa), ranking member of the Judiciary Committee, has introduced legislation to cut the number of judges on the court to 8.

    But the obstruction doesn’t stop there. The federal agency charged with carrying out the National Labor Relations Act has been under a constant stream of attack by Republican senators. The five-member board cannot operate without a quorum and after the Republican-controlled D.C. Circuit ruled earlier this year that two of the Board’s members, Richard Griffin and Sharon Block, were improperly appointed during a Senate break, Sen. Lamar Alexander (R-Tenn.) has been calling for them to resign. Doing so would effectively shutter the National Labor Relations Board until the appeals court process runs its course. And by the way, the D.C. Circuit’s opinion in Canning has been widely blasted as resting on wobbly legal grounds. Moreover, the opinion runs counter to other Circuit court rulings on recess appointments, and the Obama administration has appealed it the U.S. Supreme Court. The president has not asked for their resignations, nor should he.  

  • May 13, 2013
    Guest Post

    by Johnda Bentley, Assistant General Counsel, Service Employees International Union (SEIU)

    The National Labor Relations Board (NLRB) is the agency that protects the rights of private sector employees to join together to improve their wages and working conditions. Until the Senate confirms President Obama’s nominees to the NLRB, employees’ rights and our economy are at risk.

    The NLRB stopped functioning properly in late January when the D.C. Circuit invalidated the recess appointments of two of the three current Board members in Noel Canning. With only one valid member appointed, the court concluded, the Board had lost quorum. Since this ruling, employers have challenged the agency’s authority at every level.

    The validity of the recess appointments is unclear. The issue is pending before several other circuit courts, and Noel Canning was appealed to the Supreme Court. However, assuming the Supreme Court grants review, a decision is unlikely before next year. 

    Following Noel Canning, President Obama re-nominated the two recess appointees, both Democrats. And in April, the president made three more nominations, includingtwo Republicans and the current Chairman, a Democrat. The Chairman’s current term will expire on August 27, 2013, unmistakably leaving the Board without a quorum if there are no appointments before that time. If Senate confirms all nominees, there will be a full, five-member Board. 

    In the meantime, the Board continues to issue decisions with the recess appointees, but unfair labor practices largely remain unremedied. This is because orders of the NLRB must be enforced by circuit courts, and all parties have the option to appeal to the D.C. Circuit. 

  • May 8, 2013

    by Jeremy Leaming

    While the Obama administration has done much to diversify the federal bench, Senate Republicans have so far successfully kept one of the nation’s most important appellate courts free of any diversity. The U.S. Court of Appeals for the District of Columbia Circuit rules on significant and often complex matters, including national security concerns; but it also rules on matters that are of great concern to corporate America.

    Since the Republican Party is the primary coddler of the super wealthy, it’s hardly surprising that its leaders in the Senate are working feverishly to ensure that President Obama has little if any opportunity to change the ideological makeup of the D.C. Circuit. The graphic (right) produced by People For The American Way is a compelling and accessible picture of the matter. (Senate Judiciary Committee Ranking Member Chuck Grassley is also pushing legislation that would cut the number of judges on the bench; he claims the D.C. Circuit has enough judges and a light caseload. For the truth, read retired D.C. Circuit Chief Judge Patricia Wald’s piece for The Washington Post.)  

    For many years now, the D.C. Circuit has been controlled by conservative judges. There are four vacancies on the bench and Senate Republicans have successfully blocked the president from filling them. As Miranda notes in a PFAW blog post, because of Senate obstructionism Obama is the “first president since Woodrow Wilson to serve a full first term without placing a judge on the D.C. Circuit.”

    An opinion yesterday by a three-judge panel of the D.C. Circuit provides yet another example of the Court’s pro-business tilt. It knocked down a rule by the National Labor Relations Board (NLRB) requiring employers to post notices about the rights of workers, such as joining a union or advocating for safer working conditions. In a post for AFL-CIO NOW, Mike Hall calls the NLRB rule “commonsense and evenhanded,” noting that such notices also inform workers that they do not have to join a union. But the D.C. Circuit found a way to side with corporations that aren’t especially eager to inform workers of their rights pursuant to the National Labor Relations Act.

    That opinion follows one from earlier in the year, Canning v. NLRB, where the D.C. Circuit invalidated the president’s appointments to the five-member NLRB. That opinion has been appealed by the Obama administration. In short, the three-judge panel of the D.C. Circuit essentially redefined what a recess appointment is, one that differs greatly from practice and federal court precedent. (See Sec. 2 of Article II of the U.S. Constitution.)

    The D.C. Circuit has also proven hostile to environmental regulations that are often challenged by corporations. In a post for grist, the Constitutional Accountability Center’s Simon Lazarus and Doug Kendall say the D.C. Circuit, on “any given day … has the power to throw the environmental movement into complete disarray.” (They could have added to the great delight of many corporations or the Koch brothers.)

  • May 7, 2013

    by Jeremy Leaming

    Once again a right-wing controlled federal appeals court has dealt a blow to workers’ rights. The Koch brothers and their staunch defenders of an unwieldy corporate America have yet another court action to celebrate.  

    In National Association of Manufacturers v. National Labor Relations Board, a three-judge panel of the U.S. Court of Appeals for the District of Columbia invalidated a rule issued by the National Labor Relations Board (NLRB) requiring employers to post notices containing information about rights pursuant to the National Labor Relations Act (NLRA). For instance a flyer, poster or notice could inform workers of their rights to create a union, engage in collective bargaining, advocate for safe working conditions, or wage a strike. The NLRB rule also stated that companies failing to post such notices were engaging in unfair labor practices.

    The three-judge panel, all consisting of Republican-appointed judges, invalidated the NLRB rule, saying it went beyond the Board’s authority, the Los Angeles Times reports. The D.C. Circuit also complained the NLRB rule amounted to government-controlled speech, saying employers covered by the NLRA cannot be forced in all circumstances to post or disseminate workers’ rights spelled out under the law. The D.C. Circuit called this “compelled speech” and said the employers “see the poster as one-sided, as favoring unionization, because it ‘fails to notify employees, …, of their rights to decertify a union, to refuse to pay dues to a union in a right-to-work state, and to object to payment of dues in the excess of the amounts required for representational purposes.’”

    The D.C. Circuit is often considered the second most important court in the country because it hears an array of weighty constitutional matters, including the creation of federal regulations, like those aimed at enforcing the NLRA. The eleven-member court has four vacancies and Senate Republicans have blocked President Obama’s attempts to fill the vacancies. Earlier this year, the Senate, led by Minority Leader Mitch McConnell (R-K.Y.), again blocked the nomination of Caitlin Halligan to a seat on the bench. She has subsequently withdrawn her nomination.

    The Senate Judiciary Committee has conducted a hearing on another Obama nominee to the D.C. Circuit, Sri Srinivasan. But during that hearing, Ranking Member Chuck Grassley (R-Iowa) announced legislation to cut the number of judges serving on that bench to 8. If Grassley has his way, Obama will be fortunate to get one judge placed on the D.C. Circuit.