Judge Jackson’s Non-decision on Recess Appointments

U.S. District Judge Amy Berman Jackson issued an opinion yesterday regarding a challenge to the validity of a rule promulgated by the National Labor Relations Board (NLRB) to require employers to post notices informing workers of their right to organize a union and conduct other activities under the National Labor Relations Act (NLRA). In its opinion on the merits, which can be found here, the court holds:

that the NLRA granted the Board broad rulemaking authority to implement the provisions of the Act, and that the Board did not exceed its statutory authority in promulgating Subpart A of the challenged rule – the notice posting provision. But it also holds that the provision of Subpart B that deems a failure to post to be an unfair labor practice, and the provision that tolls the statute of limitations in unfair labor practice actions against employers who have failed to post, do violate the NLRA and are invalid as a matter of law.

The articles about this decision stress another aspect of the court’s ruling, however, dealing with a challenge to President Obama’s recess appointments of three members of the NLRB. This ruling is not found in the main opinion, but in a separate memorandum and order (which for unknown reasons is not available on the court’s website).

The court does not address the merits of the challenge to the recess appointments. Instead, it notes that the “rule challenged in this case was already promulgated” when the recess appointments were made and that therefore “the validity of the recess appointments has absolutely no bearing on any of the issues that are ripe for decision in this case.” The validity of the recess appointments could be relevant to a later attempt to enforce the rule in question, but this issue is not ripe: “Neither the Court nor the parties know if and when the General Counsel will initiate enforcement actions pursuant to the rule, and we do not know whether the Board will be comprised of recess appointees at that time.”

Nothing particularly surprising (or interesting) there, but the media has picked up on the court’s comment that it “declines this invitation to take up a political dispute that is not before it.” The description of the matter as a “political dispute” may be cited by the Justice Department in future cases, if for no other reason than to provide mood music for the theme that the courts should stay out of the whole issue. Of course, Judge Jackson’s remark cannot fairly be taken as expressing any kind of a view on whether courts can review the merits of a recess appointments claim in a case where it is properly presented (and, if it could be so read, it would be obiter dicta).

Incidentally, the validity of the NLRB recess appointments is also being challenged in a case currently pending in the U.S. District Court for the Eastern District of New York. See the brief filed by Paul Clement on February 27, 2012 here.