Wyatt Employment Law Report

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NLRB Seeks Review of the Recess Appointments Case in the U.S. Supreme Court

By Edwin S. Hopson

 On April 25, 2013, the government filed its petition for certiorari in the U.S. Supreme Court in NLRB v. Noel Canning, seeking review of the D.C. Circuit Court of Appeals’ decision invalidating President Obama’s January 2012 recess appointments to the Board.  In its 31 page brief, the Justice Department and NLRB lawyers presented two questions for review:

 “1. Whether the President’s recess-appointment power may be exercised during a recess that occurs within a session of the Senate, 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 vacancies that exist during a recess, or is instead limited to vacancies that first arose during that recess.”

 Should the Supreme Court agree to take the case, it would then be briefed and heard, in the ordinary course, during the next term of the Court and a decision would not likely come until some time next year.

 A copy of the petition can be found at: