Today in its final orders of the term, the Court GVR’d two cases:
AMBASSADOR SERVICES, INC. V. NLRB The petition for a writ of certiorari is granted. The judgment is vacated, and the case is remanded to the United States Court of Appeals for the Eleventh Circuit For further consideration in light of NLRB v. Noel Canning, 573 U. S. ___ (2014).
NLRB V. GESTAMP SOUTH CAROLINA LLC The petition for a writ of certiorari is granted. The judgment is vacated, and the case is remanded to the United States Court of Appeals for the Fourth Circuit For further consideration in light of NLRB v. Noel Canning, 573 U. S. ___ (2014).
Each of these cases involved a challenge to the NLRB’s lack of a quorum.
From Ambassador Services, where a quorum was found:
On appeal, Ambassador asserts that the Board lacked a quorum to issue its order because—at the time that the Board issued its decision and order—three of the Board’s five members were intra-session recess appointments made without Senate consent. … While there are certainly some differences between this Court’s opinion in Evans and this case, the reasoning in Evans persuades us that Ambassador’s quorum claim lacks merit and that the authority of the Board to act does not affect our subject matter jurisdiction over the merits issues in this case.
From Gestamp, where no quorum was found:
Board Member Craig Becker served as one of the three panel members in this case. However, Member Becker was appointed by the President on March 27, 2010, during a two-week adjournment of the Senate. See New Vista, 719 F.3d at 213. Because his appointment was constitutionally invalid from its inception, see id. at 221, there were not enough valid members to meet the requisite quorum and the Board lacked the power to lawfully act when it issued its decision in this case. Accordingly, we grant Gestamp’s petition for review, deny the Board’s cross-application for enforcement, vacate the Board’s decision, and remand the case to the NLRB for further proceedings as may be appropriate
As noted above, the United States Supreme Court has granted certiorari review in Noel Canning. See NLRB v. Noel Canning, 133 S. Ct. 2861 (June 24, 2013). Although no formal motion has been made to hold this case in abeyance pending the Supreme Court’s decision in Noel Canning, the option was suggested by Gestamp and opposed by the NLRB in their respective Rule 28(j) letters. See Fed. R. App. P. 28(j). In light of our decision in Enterprise Leasing, we decline to delay further resolution of this appeal at this juncture. We also deny Gestamp’s Motion to Strike the NLRB’s Rule 28(j) letter and/or for supplemental briefing.
So we should get a ruling soon about whether all of the rulings during that time were void, due to a lack of a quorum.