When the D.C. Circuit issued its opinion in Noel Canning v. NLRB in January 2013, it caused representatives of labor and management across the country to put down their union by-laws and collective bargaining agreements and pick up another sacred text: the U.S. Constitution.  As reported here, the court invalidated President Obama’s recess appointments of three members of the NLRB, holding the appointments unconstitutional and throwing the legitimacy of the Board’s recent decisions into limbo.

This week, the NLRB issued a brief news release announcing that it will forego asking for rehearing by the entire D.C. Circuit, choosing instead to file a petition for certiorari with the U.S. Supreme Court.  The release states that the NLRB consulted with the Department of Justice before making the decision, demonstrating that Noel Canning’s significance extends well beyond the NLRB and has the full attention of the Obama Administration.

Given Noel Canning’s significant ramifications – affecting not only the legitimacy of the NLRB’s recent rulings but also the constitutional balance of power between the President the Congress – it is widely believed that the Supreme Court will grant the motion and hear the case at some point during the Court’s term beginning in October of this year.  The NLRB’s petition for certiorari is due April 25, 2013, but the Court’s decision on certiorari may not come for at least several months.  We will keep you posted on any new developments.

The NLRB’s choice not to request review by the entire D.C. Circuit may signal the Obama Administration’s recognition that it had only a slim chance of success before the whole court – where five of the eight judges likely to hear the case were appointed by Republicans.  All three of the judges joining the original panel’s Noel Canning opinion were Republican appointees.)

Interestingly, the D.C. Circuit currently has four vacancies, and President Obama’s attempts to fill them have been stymied by Senate Republicans.  Just last week, they once again blocked the confirmation of an Obama nominee that has been pending for over two years.  Another appointment has been pending for almost a year.  The D.C. Circuit, therefore, was a fitting forum for Noel Canning, which addressed the constitutionality of President Obama’s efforts to avoid the same senatorial gridlock that has hampered his efforts to fill the court.  One can only wonder whether his administration might have been willing to test the court en banc if his appointed judges were on the bench.

The D.C. Circuit, of course, enjoys a prominent place in labor law, as every NRLB decision can be appealed either in that court or in the circuit in which the alleged unlawful practice took place.  Also of note, four of the current Supreme Court Justices that the NLRB will ask to review the D.C. Circuit’s decision are alumni of that court – Chief Justice Roberts and Justices Ginsburg, Scalia, and Thomas.