Challenges to the NLRB are multiplying — now in front of two different appeals courts

A Fifth Circuit appeal has been pending, but now the constitutionality of the labor law enforcement agency is in front of the Sixth Circuit as well.

The business fight against America’s labor laws — and the agency charged with enforcing those laws — has reached new levels, as challenges to the constitutionality of the National Labor Relations Board are now in front of two federal appeals courts.

At the end of July, I wrote about the messages the U.S. Supreme Court’s conservatives sent to far-right judges and lawyers this past term.

“Disregard precedent where you think we might do so.” “Try out previously fringe ideas.” “Give us more cases.”

In short: “Do what you want.”

These messages, I noted, were being sent in the context of what I described as a type of “contingent” term, with next steps awaiting the election results.

As an example of those lessons having been learned, I highlighted a July ruling from U.S. District Judge Alan Albright, a Trump appointee in the Western District of Texas.

Albright blocked a NLRB administrative proceeding involving SpaceX from going forward because, he concluded, the NLRB’s administrative law judges are “unconstitutionally insulated from removal” and the same is true of NLRB’s members themselves.

This, I noted previously, was part of an ongoing effort to undermine, if not destroy, the NLRB — itself a part of the still broader attack on administrative agencies. Albright’s ruling was a foot in the door — giving the NLRB challengers a ruling that they could get in front of the U.S. Court of Appeals for the Fifth Circuit (where the case is on appeal now) and, if they’ll take it, the Supreme Court.

Since then, the chances of this effort forcing the Supreme Court’s hand by creating a circuit split — or at least, divergent rulings — increased. As Matt Bruenig highlighted on Tuesday, there have been a handful of other preliminary rulings in other NLRB challenges.

Update on Constitutional Challenges to the NLRB

In two of them, also in other Texas districts, other Republican appointees — U.S. District Judges Mark Pittman (N.D. Tex.) and Jeff Brown (S.D. Tex.) — reached the same decision as Albright had.

In one of them, however, U.S. District Judge Laurie Michelson, an Obama appointee in the Eastern District of Michigan, rejected YAPP USA Automotive System’s request for a preliminary injunction on September 9.

In a reminder of how quickly cases can burst onto the scene — and, potentially, rush up to the Supreme Court — more recent actions from Michelson have pushed the case up to and in front of the U.S. Court of Appeals for the Sixth Circuit.¹

Although Michelson initially, on September 9, granted YAPP a stay of the agency’s action pending YAPP’s appeal to the Sixth Circuit, she reversed course on September 13 following a request from the NLRB that she reconsider that decision. NLRB’s lawyers argued that Michelson had not properly applied the standard for a stay pending appeal, which, essentially, she agreed with in her September 13 order.

That, in turn, led YAPP on Tuesday to ask the Sixth Circuit for an “Emergency Motion for Preliminary Injunction and Stay Pending Appeal.”

Specifically, YAPP’s lawyers asked the Sixth Circuit, during the appeal, to “(1) preliminarily enjoin the NLRB from further administrative proceedings against YAPP, and (2) stay the proceedings in the district court.”

Depending on what happens at the Sixth Circuit and given YAPP’s aggressive posture, then, this case about the constitutionality of the NLRB’s members and administrative law judges could — albeit on the shadow docket — find its way to the Supreme Court within the coming month.

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Lawyering note

YAPP’s Tuesday request at the Sixth Circuit, filed by their lawyers at Warner Norcross + Judd LLP and Bass Berry & Sims PLC, is a bit of an odd document, for several reasons.

The first oddity that I noticed was that YAPP’s lawyers referred to — and even quoted from — Michelson’s September 9 stay order, despite the fact that Michelson granted the NLRB’s motion to reconsider that ruling on September 13.

In her September 13 order, Michelson wrote that reconsideration is appropriate in the Eastern District of Michigan where “the court made a mistake,” among other requirements. Two paragraphs later, Michelson wrote, ”Upon further reflection, and considering the points raised in the Defendants’ and amicus’ briefs, the Court concludes that reconsideration is warranted.”

Why, then, are YAPP’s lawyers quoting from the September 9 — mistaken — stay order?

In addition to that, four hours after YAPP filed their request on Tuesday, the NLRB filed a rather terse, three-paragraph letter with the court, noting that its plan, under the federal rules, was to respond to YAPP’s request within 10 days.

In the second paragraph, NLRB’s counsel gets a bit punchy, explaining — with use of scare quotes — the reason for explaining those dates in the first paragraph: There is no emergency.

And, finally, the NLRB lawyers end their evening letter filing by noting that “it appears“ YAPP didn’t file the “emergency” request correctly under the court’s rules.

It appears to me that there is no love lost between the NLRB and these challengers.

Which, honestly, makes sense — since the challengers’ goal is to destroy the NLRB.

1. The Sixth Circuit is conservative, but it got one more Democratic appointee confirmed to it on Monday — making the split 9 Republican appointees to 7 Democratic appointees once Kevin Ritz takes his seat.