The Supreme Court on Wednesday declined to intervene, at least for now, in the simmering legal dispute over President Barack Obama’s contested appointments to the National Labor Relations Board.
For the second time in three days, the high court rejected a request from a nursing home company that had asked the justices on Monday to block an NLRB order against it. The company, HealthBridge Management, argues that the agency’s order should be blocked because a federal appeals court ruled Jan. 25 in a separate case that Obama unconstitutionally appointed three members to the NLRB last year, stripping the board of the quorum it needs to conduct business.
The Jan. 25 ruling, issued by a three-judge panel of the U.S. Court of Appeals for the District of Columbia, has sparked much speculation that the Supreme Court will get involved in the dispute over the appointments. In a two-sentence order on Wednesday, however, the justices indicated that the HealthBridge appeal would not be the one that draws them in.
Justice Antonin Scalia received the company’s application for emergency action and passed it on to the full court, which rejected it. Justice Ruth Bader Ginsburg had individually rejected the same request on Monday, but Supreme Court petitioners may apply to a different justice to seek relief.
Justice Samuel A. Alito Jr. took no part in the consideration of the request, presumably because his sister, Rosemary Alito, a partner at the law firm K&L Gates, helped prepare the petition for HealthBridge.
The nursing home firm had wasted little time after the D.C. Circuit ruling in asking the high court to settle its grievance with the NLRB, which relates to an ongoing strike at the firm’s nursing home centers in Connecticut.
“The board’s ability to take final action has been called into question by the D.C. Circuit’s recent decision invalidating the president’s recess appointments and recognizing that the board therefore lacks a quorum to take action,” HealthBridge said in its application to the Supreme Court on Monday.
“The validity of the president’s recess appointments to the board is a question that will inevitably and quickly find itself before this court,” the company says. “It makes little sense for the courts to order immediate action at the behest of the board here when the board’s ability to act is in profound doubt and will be addressed by this court.”
The Justice Department is expected to appeal the D.C. Circuit’s ruling on Obama’s appointments to the high court but has not yet done so.
The three-judge panel of the D.C. Circuit said Obama’s appointments to the NLRB while the Senate was on a holiday break in January 2012 were unconstitutional. The Constitution permits the president to make appointments while the Senate stands in recess. During the period in question, however, the Senate was meeting in a series of pro forma sessions — which Republicans had insisted on specifically to prevent Obama from making appointments — and thus was not technically in recess, Chief Judge David B. Sentelle wrote for the majority.
That case was brought by Noel Canning, a small bottling company in Washington state that sued the NLRB.
The NLRB has maintained that the board will continue its operations as usual while the legal situation is resolved.
“The board respectfully disagrees with [the circuit court] decision and believes that the president’s position in the matter will ultimately be upheld,” NLRB Chairman Mark Gaston Pearce said Jan. 25 in a written statement. “It should be noted that this order applies to only one specific case . . . and that similar questions have been raised in more than a dozen cases pending in other courts of appeals.”