[EL] FW: DC Circuit decision on recess appointments - Canning v. NLRB

[Scarberry, Mark]

Wouldn't decisions on which the time to seek review has expired be good as against the parties? That's the rule on subject matter jurisdiction isn't it? Precedent (or validity of rules made by admin agencies) would be a different matter, I suppose.

Mark

Mark S. Scarberry
Professor of Law
Pepperdine Univ. School of Law

From: Marty Lederman [mailto:lederman.marty at gmail.com]
Sent: Friday, January 25, 2013 10:12 AM
To: Adam Bonin
Cc: Scarberry, Mark; law-election at department-lists.uci.edu
Subject: Re: [EL] FW: DC Circuit decision on recess appointments - Canning v. NLRB

Well, if the Supreme Court were to affirm -- a big if -- it would call into question the actions of hundreds of recess appointees going back to 1921, if not 1823.  There would then be a wholly separate question, of course, of whether any of those decisions could be retroactively challenged, particularly after time has long passed.
On Fri, Jan 25, 2013 at 1:08 PM, Adam Bonin <adam at boninlaw.com<mailto:adam at boninlaw.com>> wrote:
Would this invalidate any FEC decision entered from January 2006-December
2007, when I believe the Commission had three recess-appointed members (von
Spakovsky, Lenhard, Walther)?


Adam C. Bonin
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-----Original Message-----
From: law-election-bounces at department-lists.uci.edu<mailto:law-election-bounces at department-lists.uci.edu>
[mailto:law-election-bounces at department-lists.uci.edu<mailto:law-election-bounces at department-lists.uci.edu>] On Behalf Of
Scarberry, Mark
Sent: Friday, January 25, 2013 1:02 PM
To: law-election at department-lists.uci.edu<mailto:law-election at department-lists.uci.edu>
Subject: [EL] FW: DC Circuit decision on recess appointments - Canning v.
NLRB

I thought this might be of interest to the list members.

Mark

Mark S. Scarberry
Professor of Law
Pepperdine Univ. School of Law


-----Original Message-----
From: conlawprof-bounces at lists.ucla.edu<mailto:conlawprof-bounces at lists.ucla.edu>
[mailto:conlawprof-bounces at lists.ucla.edu<mailto:conlawprof-bounces at lists.ucla.edu>] On Behalf Of Scarberry, Mark
Sent: Friday, January 25, 2013 9:34 AM
To: Conlawprof at lists.ucla.edu<mailto:Conlawprof at lists.ucla.edu>
Subject: DC Circuit decision on recess appointments - Canning v. NLRB

The DC Circuit has ruled that the recess appointments to the NLRB were
unconstitutional. I haven't fully digested it, but it appears to me that
this is a blockbuster decision holding that (1) recess appointments cannot
be made during intra-session adjournments but only between sessions, (2) the
vacancy must "arise" between sessions (not while the Senate is in session
and not during an intra-session adjournment), and (3) the vacancy can only
be filled by recess appointment during the same inter-session recess in
which it arose. Again, I have just skimmed the opinion.

As a result, the NLRB's actions were invalid; it lacked a quorum because the
recess appointees were not validly appointed.

See
http://www.cadc.uscourts.gov/internet/opinions.nsf/D13E4C2A7B33B57A85257AFE0
0556B29/$file/12-1115-1417096.pdf<http://www.cadc.uscourts.gov/internet/opinions.nsf/D13E4C2A7B33B57A85257AFE0%0A0556B29/$file/12-1115-1417096.pdf>.

One of the three judges on the panel thought it unnecessary to reach points
2 and 3, which seems to me to be correct.

I can't imagine the Supreme court denying cert on this.

Mark S. Scarberry
Professor of Law
Pepperdine Univ. School of Law
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