Could Senate Action After Cloture Reform Moot Noel Canning?

Over at Concurring Opinions, Gerard Magliocca notes that the Senate Democrats are considering a rule change that would bar filibusters for executive branch nominees, and states that “[p]art of the plan (or bluff) involves the confirmation of all the President’s nominees for the vacancies on the NLRB. These are the same vacancies that the President filled with recess appointments last year and were declared unconstitutional by the Third and D.C. Circuits.” He then asks the following:

Suppose the Senate does confirm these people. Can they then confirm retroactively all of the decisions made by the recess appointees? (Since I think the recess appointees and the nominees are the same, it would be confirming their own decisions.) If so, then that would moot the appeal from the D.C. Circuit on which the Supreme Court granted certiorari.

Likewise, the Washington Post yesterday wrote that “[i]f the Senate confirms those temporary appointees to full terms, the board could presumably reissue those rulings and render moot the debate over their validity.”

I’m no expert. (Since when has that stopped me before?) But based on the jurisdictional rules that apply to the NLRB and which are common for review of agency adjudications (and, in a slightly different way, district court decisions), it appears that an NLRB with newly confirmed members could not simply ratify the decision in a particular matter previously made by the Board while it still had recess-appointed members. As with many agency adjudications, the governing statutes shift jurisdiction from the agency to the reviewing courts. The National Labor Relations Act provides in relevant part that:

[u]pon the filing of such petition [to review in the court of appeals], the court . . . shall have jurisdiction of the proceeding and of the question determined therein . . . . Upon the filing of the record with it the jurisdiction of the court shall be exclusive and its judgment and decree shall be final, except that the same shall be subject to review . . . by the Supreme Court of the United States upon writ of certiorari or certification as provided in section 1254 of title 28.

29 U.S.C. § 160(e); see also § 160(f).

The statute provides a limited mechanism for the NLRB to receive additional evidence, but only upon leave of court:

If either party shall apply to the court for leave to adduce additional evidence and shall show to the satisfaction of the court that such additional evidence is material and that there were reasonable grounds for the failure to adduce such evidence in the hearing before the Board . . . , the court may order such additional evidence to be taken before the Board . . . , and to be made a part of the record.

Id.cf. also Fed. R. Civ. P. 62.1 (permitting district court to make indicative ruling on a motion for relief that is barred by a pending appeal).  The presence of this limited, explicit carve-out in such a detailed statutory scheme likely suggests there are no implicit exceptions that would allow the NLRB to return to the matter. See, e.g., United States v. Fausto, 484 U.S. 439, 448 (1988).

The courts that have addressed related matters appear to agree with this reading. Citing Section 160(e), the D.C. Circuit has written that “[a]bsent a remand, the Board may neither reopen nor make additional rulings on a case once exclusive jurisdiction vests in the reviewing court.” George Banta Co. v. NLRB, 686 F.2d 10, 16 (D.C. Cir. 1982).  There are other decisions addressing the slightly different question of the Board’s ability to revisit a matter once a court of appeals has entered judgment or its mandate has issued.  See Mine Workers v. Eagle-Picher Mining & Smelting, 325 U.S. 335, 343 (1945) (rejecting the proposition that “the Board may resume jurisdiction in the same case when it pleases” after entry of judgment by the court of appeals); SEIU Local 250 v. NLRB, 640 F.2d 1042, 1045 (9th Cir. 1981) (Kennedy, J.) (“absent an order to remand or some express qualification in the judgment, finality is presumed”).

That’s my preliminary take. If I’ve overlooked something, let me know.

UPDATE (4:28 pm).  It occurs to me that this issue was among those addressed in then-Solicitor General Kagan’s post-argument letter to the Court in New Process Steel, L.P. v. NLRB, addressing whether the appointment of new members to the NLRB mooted the issue of whether a panel of just two NLRB members could act on behalf of the Board.  Among other reasons listed for concluding the case was not moot, Solicitor General Kagan wrote, “the Board no longer has jursdiction over New Process Steel, L.P. or the other cases where jurisdiction was transferred to the relevant court of appeals or to this Court.”  Letter at 2 (citing Section 160(e) and (f)).

The letter also addressed the possibility of blanket ratification, concluding that it was “unclear whether the Board has the authority to ‘ratify’ the two-member decisions en masse without reconsidering each case individually,” and “prudential considerations . . . would weigh against the Board’s exercising such authority in view of the high risk of potential challenges to a blanket ratification order.”  Id.