I MAY I I. RECEIVED '------~i'it'i'i':rlunited STATES COURT OF APPE,~~ CLERK FOR THE DISTRICT OF COLUMBIA CIRCUIT.

Transcription

1 Utffm Sr;\TES COUOF APPEALS foa DISm:CT OF COLUMBIA CIRruT I MAY MAY 3,t12013 RECEIVED '------~i'it'i'i':rlunited STATES COURT OF APPE,~~ CLERK FOR THE DISTRICT OF COLUMBIA CIRCUIT RLEO IN RE CSC HOLDINGS, LLC, AND CABLEVISION SYSTEMS NEW YORK CITY CORP., PETITIONERS Case No I I I PETITION FOR WRIT OF MANDAMUS OR PROHIBITION Doreen S. Davis JONES DAY 222. East 41 st Street New York, N.Y (212) Jerome B. Kauff MUFF, McGUIRE & MARGOLIS LLP 950 Third Avenue 14th Floor New York, N.Y (212) Matthew D. McGill Counsel of Record Eugene Scalia GIBSON, DUNN & CRUTCHER LLP 1050 Connecticut Avenue, N.W. Washington, D.C (202) MMcGill@gibsondunn.com Counsel for Petitioners CSC Holdings, LLC and Cablevision Systems New York City Corp.

2 TABLE OF CONTENTS Page INTRODUCTION... 1 RELIEF SOUGHT... 3 ISSUE PRESENTED... 4 STATEMENT OF FACTS... 4 REASONS WHY THE WRIT SHOULD ISSUE... 6 I. THE COMPANIES HAVE NO OTHER REMEDY TO PREVENT THE BOARD AND ITS AGENTS FROM CONDUCTING UNLAWFUL PROCEEDINGS II. THE COMPANIES HAVE A CLEAR AND INDISPUTABLE RIGHT NOT TO FACE PROCEEDINGS THAT THE BOARD S AGENTS LACK POWER TO CONDUCT A. Neither The Board Nor Its Agents May Exercise The Board s Powers Under The Act Because The Board Lacks A Quorum B. The Commencement And Continued Conduct Of Unfair-Labor-Practice Proceedings By The Board s Agents Is Clearly Unlawful C. The Board And Its Agents Lack Authority To Commence Federal-Court Litigation To Seek Injunctive Relief Under Section 10(j) III. MANDAMUS IS APPROPRIATE TO ENFORCE THIS COURT S ORDERS, PROTECT ITS JURISDICTION, CONFINE THE AGENCY TO THE LAWFUL EXERCISE OF ITS JURISDICTION, AND PREVENT IRREPARABLE HARM A. Mandamus Is Necessary To End The Board s Ongoing Defiance Of This Court s Rulings

3 B. Mandamus Is Appropriate To Protect This Court s Jurisdiction C. Mandamus Would Avert Irreparable Harm To The Companies And The Public CONCLUSION CERTIFICATE OF PARTIES AND AMICI CURIAE CORPORATE DISCLOSURE STATEMENT ADDENDUM CERTIFICATE OF SERVICE ii

4 TABLE OF AUTHORITIES Page(s) Cases Ass n of Nat l Advertisers, Inc. v. FTC, 627 F.2d 1151 (D.C. Cir. 1979)... 9 Belize Soc. Dev. Ltd. v. Gov t of Belize, 668 F.3d 724 (D.C. Cir. 2012)... 7, 21 Beverly Health & Rehab. Servs., Inc. v. Feinstein, 103 F.3d 151 (D.C. Cir. 1997) Bloomingdale s, Inc., 359 NLRB No. 113, 2013 WL (2013)... 4, 9, 16, 24 * Cheney v. Dist. Ct. for Dist. of Columbia, 542 U.S. 367 (2004)... 7, 21, 22, 23 * City of Cleveland v. Fed. Power Comm n, 561 F.2d 344 (D.C. Cir. 1977)... 22, 23 Conkright v. Frommert, 129 S. Ct (2009) (Ginsburg, J., in chambers) Evans v. Stephens, 387 F.3d 1220 (11th Cir. 2004) FTC v. Dean Foods Co., 384 U.S. 597 (1966) In re City of New York, 607 F.3d 923 (2d Cir. 2010) In re Sealed Case, 151 F.3d 1059 (D.C. Cir. 1998)... 2 * Authorities upon which we chiefly rely are marked with asterisks. iii

5 * Iowa Utils. Bd. v. FCC, 135 F.3d 535 (8th Cir. 1998)... 22, 23, 27 * Laurel Baye Healthcare of Lake Lanier, Inc. v. NLRB, 564 F.3d 469 (D.C. Cir. 2009)... 4, 10, 11, 12, 14, 15, 18, 20, 23 MCI Telecomms. Corp. v. FCC, 580 F.2d 590 (D.C. Cir. 1978)... 22, 30 Mills v. Dist. of Columbia, 571 F.3d 1304 (D.C. Cir. 2009) Myers v. Bethlehem Shipbldg. Corp., 303 U.S. 41 (1938) Nara v. Frank, 494 F.3d 1132 (3d Cir. 2007) * New Process Steel, LP v. NLRB, 130 S. Ct (2010)... 4, 10, 11, 20 * NLRB v. New Vista Nursing & Rehab., F.3d, 2013 WL (3d Cir. May 16, 2013)... 1, 12, 13, 14, 16, 20 * Noel Canning v. NLRB, 705 F.3d 490 (D.C. Cir. 2013)... 1, 4, 9, 10, 11, 12, 13, 14, 15, 16, 18, 20, 21, 23, 28 Philip Morris USA Inc. v. Scott, 131 S. Ct. 1 (2010) (Scalia, J., in chambers) Roche v. Evaporated Milk Ass n, 319 U.S. 21 (1943) * Telecomms. Res. & Action Ctr. v. FCC, 750 F.2d 70 (D.C. Cir. 1984)... 26, 27 United States v. Allocco, 305 F.2d 704 (2d Cir. 1962) United States v. Mendoza, 464 U.S. 154 (1984) iv

6 United States v. Woodley, 751 F.2d 1008 (9th Cir. 1985) Wash. Metro. Area Transit Comm n v. Holiday Tours, Inc., 559 F.2d 841 (D.C. Cir. 1977) Will v. United States, 389 U.S. 90 (1967) * Yablonski v. United Mine Workers of Am., 454 F.2d 1036 (D.C. Cir. 1971)... 22, 23 Constitutional Provisions U.S. Const. art. I, 5, cl U.S. Const. art. II, 2, cl U.S. Const. art. II, 2, cl Statutes 28 U.S.C U.S.C U.S.C , 11, U.S.C , 15 * 29 U.S.C , 4, 7, 8, 10, 15, 16, 17, 19, 20, 24, 26 Regulations And Rules * 29 C.F.R , 16, C.F.R C.F.R C.F.R v

7 29 C.F.R C.F.R C.F.R C.F.R C.F.R C.F.R C.F.R C.F.R * 29 C.F.R Fed. R. App. P Sup. Ct. R Other Authorities 112th Cong., Congressional Directory (2011) Cong. Rec. S8783 (Dec. 17, 2011) Cong. Rec. S1 (Jan. 3, 2012) Cong. Rec. S3 (Jan. 6, 2012) Fed. Reg (Apr. 6, 1955) Fed. Reg. 65,998 (Dec. 21, 2001) Fed. Reg. 70,628 (Nov. 25, 2002) Fed. Reg. 69,768 (Nov. 9, 2011) Fed. Reg. 45,696 (2012) vi

8 Costco Wholesale Corp., 358 NLRB No. 106 (Sept.7, 2012) Ctr. for Soc. Change, Inc., 358 NLRB No. 24, 2012 WL (2012)... 9 D.R. Horton, 357 NLRB No. 184 (Jan. 3, 2012) Executive Power Recess Appointments, 33 Op. Att y Gen. 20 (1921) Marriot Int l, Inc., 359 NLRB No. 8 (Sept. 28, 2012) NLRB, Board Members Since 1935, 12, 13, 20 NLRB, Jim Paulsen named Regional Director in Brooklyn (Jan. 6, 2012), 16 NLRB, Karen Fernbach named Regional Director in Manhattan (Jan. 6, 2012), 16 S. Journal, 112th Cong., 2d Sess. (2012) Specialty Healthcare, 357 NLRB No. 83 (Aug. 26, 2011) Teamsters Local 75, 349 NLRB No. 77 (Jan. 26, 2007) WKYC-TV, Inc., 359 NLRB No. 30 (Dec. 12, 2012) vii

9 INTRODUCTION The National Labor Relations Board has problems with authority. A panel of this Court held in Noel Canning v. NLRB, 705 F.3d 490 (D.C. Cir. 2013), that since at least January 3, 2012, the Board has lacked a statutorily mandated quorum of three validly appointed Members. And under controlling precedent, absent a quorum, neither the Board nor its agents can wield any power under the National Labor Relations Act; actions they have purported to take are simply void. Id. at 514. Two weeks ago, the Third Circuit echoed that conclusion, holding that the Board s lack of authority dates back even earlier. See NLRB v. New Vista Nursing & Rehab., F.3d, 2013 WL , at *11-30 (3d Cir. May 16, 2013). Yet by Board s lights, neither the absence of statutory authority enabling the Board to act nor the existence of judicial authority foreclosing further action by the Board poses any obstacle. It has brushed aside these challenges to its power in other cases. See In re Geary, No (D.C. Cir.); In re SFTC, LLC, (D.C. Cir.). And despite failing to seek, much less obtain, a stay in Noel Canning, the Board boldly proclaims that its authority to act is undiminished arrogating a stay of the decision to itself without demonstrating that one is warranted. The Board s defiance of Congress and the federal courts is at war with the rule of law. Yet the casualties are not merely respect for the law and the courts who are its expositors, but also those whom the Board absent authority insists

10 on regulating, among them petitioners CSC Holdings, LLC ( CSC ) and Cablevision Systems New York City Corp. ( Cablevision ) (collectively, the Companies ). Disregarding this Court s precedent, the Board has issued unfair-laborpractice complaints against the Companies and haled them to appear before the agency to defend themselves against the complaints groundless allegations. If that were not enough, the Board also is now considering additional litigation to obtain even more intrusive injunctive relief. The burdens these unauthorized proceedings will foist on the Companies are immense, including the massive time and resources needed to prepare for the Board s proceedings. And the costs spill over to the employees conscripted as witnesses, to the judges that must adjudicate the ultra vires complaints, and ultimately to the taxpayers, who must underwrite this spectacle. Lacking any other recourse against the Board s overreaching, the Companies seek a writ of mandamus or prohibition from this Court to halt the Board s illegal actions. 1 Controlling precedent already establishes that the agency s continued actions are unlawful. Neither the Board nor its agents had authority to issue the complaints; indeed, the officers who issued them were not validly holding office at 1 The standards for issuing writs of mandamus and prohibition are virtually identical, In re Sealed Case, 151 F.3d 1059, 1063 n.4 (D.C. Cir. 1998) (citation omitted), and petitioners here are entitled to the relief they seek regardless of the label. For simplicity and clarity, this petition refers hereafter only to mandamus. 2

11 all. Moreover, both the Board and its agents, including ALJs, are equally powerless to adjudicate the dispute. It would be senseless and unfair to force private parties to litigate the merits of a case that the agency cannot lawfully decide. Yet without a writ, the Companies have no means to avoid the unjust burdens that the Board s actions thrust upon them. The Board s suggestion that parties to its unlawful proceedings should litigate their challenge to the agency s authority to act before the Board itself and only then come to court is decidedly Kafkaesque: The Board has made clear that it will not even entertain such challenges; indeed, this Court has held that litigants need not even ask. And, of course, an employer could follow the Board s suggested path only by enduring the very harms for which it needs and seeks relief from this Court. Such a procedure has no place in a system of limited, accountable government. The Companies respectfully request that this Court issue a writ immediately. At minimum, the Companies ask that their case be heard together with those this Court has already determined warrant plenary consideration. RELIEF SOUGHT The Companies seek a writ of mandamus or prohibition to prevent the Board from prosecuting unfair-labor-practice complaints, and any related proceedings under 29 U.S.C. 160(j), against CSC or Cablevision. 3

12 ISSUE PRESENTED Unless the National Labor Relations Board has a quorum of three lawfully appointed Members, see 29 U.S.C. 153(b), the Board cannot exercise any authority under the National Labor Relations Act, 29 U.S.C. 151 et seq., see New Process Steel, LP v. NLRB, 130 S. Ct. 2635, 2640, (2010), nor may agents of the Board exercise authority that the Board has previously delegated to them, see Laurel Baye Healthcare of Lake Lanier, Inc. v. NLRB, 564 F.3d 469, (D.C. Cir. 2009), cert. denied, 130 S. Ct (2010). This Court has held that the Board has lacked a quorum since at least January 3, See Noel Canning v. NLRB, 705 F.3d 490, (D.C. Cir. 2013), petition for cert. filed, No (Apr. 25, 2013). The Board does not believe this Court s rulings constrain its ability to act. See Bloomingdale s, Inc., 359 NLRB No. 113, 2013 WL , at *1 (2013). Should the Court issue a writ of mandamus or prohibition under the All Writs Act, 28 U.S.C. 1651, to prevent the Board or its agents from continuing to prosecute unfair-labor-practice complaints and conducting any related litigation under 29 U.S.C. 160(j) against the Companies? STATEMENT OF FACTS CSC provides telecommunications and media services to millions of customers in the New York metropolitan area and the Western United States. CSC is 4

13 headquartered in New York and employs over 17,000 employees. Cablevision is a CSC subsidiary charged with field operations in New York. In February 2012, the Board certified the Communication Workers of America, AFL-CIO (the Union ) as the exclusive bargaining representative for 277 technician employees of Cablevision in Brooklyn, New York. Since then, Cablevision and the Union have met regularly to negotiate an initial collectivebargaining agreement with respect to wages, hours, and other terms and conditions of employment. Cablevision has provided the Union with information and made numerous offers to facilitate the finalizing of an agreement. The parties have not yet reached an agreement, but negotiations continue. Despite progress at the bargaining table, the Union recently filed several unfair-labor-practice charges against Cablevision or against Cablevision and CSC. In Case Nos. 02-CA and 02-CA (the Bronx Case ), the Union alleged that both Cablevision and CSC violated Sections 8(a)(1) and (3) of the Act supposedly by discouraging non-covered employees in the Bronx and elsewhere from selecting the Union as their bargaining representative. 2 Similarly, in Case Nos. 29-CA , 29-CA , and 29-CA (the Brooklyn Case ), the Union alleged that Cablevision violated Sections 8(a)(1), (3) and (5) of the Na- 2 The complaint in the Bronx Case names CSC as well as Cablevision because it alleges that the Companies constitute a single employer under the Act. Add

14 tional Labor Relations Act by engaging in surface bargaining and other acts that interfered with covered employee s exercise of rights protected by the Act. 3 On behalf of the Board, Karen Fernbach, Regional Director for Region 2 of the Board, issued an unfair-labor-practice complaint in the Bronx Case on April 17, Add. 1. The Regional Director for Region 29, James Paulsen, did the same in the Brooklyn Case on April 29, 2013, Add. 13, and is now seeking authorization from the Board to petition for injunctive relief in that case under Section 10(j) of the Act, Add A joint hearing for both cases has been scheduled before an Administrative Law Judge for July 8, Add REASONS WHY THE WRIT SHOULD ISSUE This Court has authority under the All Writs Act, 28 U.S.C. 1651(a), to issue all writs necessary or appropriate in aid of [its] jurisdiction and agreeable to the usages and principles of law. Id. A writ of mandamus is warranted when (1) there is no other adequate means to attain the relief [the petitioner] desires ; 3 The cases have since been consolidated. Add. 37 ( Consolidated Complaint ). 4 As discussed below, see infra at 15-16, the appointments of both Ms. Fernbach and Mr. Paulsen were unlawful because at the time the Board purported to name them as Regional Directors pursuant to 29 U.S.C. 154(a), the Board lacked a quorum, and therefore could not lawfully make the appointments. Accordingly, Mr. Fernbach and Mr. Paulsen do not lawfully hold office as Regional Directors. For simplicity and clarity, however, this brief refers to both as Regional Directors. 5 The Acting General Counsel also has declined a request by the Companies that he suspend prosecution of the Bronx and Brooklyn Cases, as well as any related existing or potential litigation under Section 10(j) of the Act, until the Board regains a quorum of three lawfully appointed members. Add. 33, 51. 6

15 (2) the petitioner s right to issuance of the writ is clear and indisputable ; and (3) the issuing court, in the exercise of its discretion, [is] satisfied that the writ is appropriate under the circumstances. Belize Soc. Dev. Ltd. v. Gov t of Belize, 668 F.3d 724, (D.C. Cir.) (quoting Cheney v. Dist. Ct. for Dist. of Columbia, 542 U.S. 367, (2004)), cert. denied, 133 S. Ct. 274 (2012). Those criteria are readily satisfied here. The Companies have no alternative means to obtain the relief they request: being freed from the immense burdens of the Board s harmful and illegitimate proceedings. The Companies are clearly entitled to that relief, indeed, controlling precedent establishes that the Board lacks a statutorily mandated quorum, and therefore neither it nor any of its agents have authority to act. They are powerless to issue complaints or decide cases. Mandamus is plainly appropriate to halt the Board s defiance of this Court s clear commands, and its attempt to evade this Court s prospective jurisdiction over Board actions, see 29 U.S.C. 160(f). The Board s unlawful proceedings, if left unchecked, not only would irreparably injure the Companies, but also would seriously undermine the rule of law and cause severe and lasting harm to labor-management relations. I. THE COMPANIES HAVE NO OTHER REMEDY TO PREVENT THE BOARD AND ITS AGENTS FROM CONDUCTING UNLAWFUL PROCEEDINGS. There can be no serious dispute that the Companies have no other adequate means besides mandamus to attain the relief [they] desir[e]. Belize Soc. Dev., 668 F.3d at 729 (citation omitted). The relief the Companies request, 7

16 and to which they are legally entitled, is the cessation of the illegitimate proceedings before the Board in the Bronx and Brooklyn Cases and any related litigation stemming from those actions. There is no other avenue open to the Companies to obtain that relief other than mandamus. As the Board itself has asserted, the Companies cannot petition for review directly from non-final actions by the Board or its agents including the issuance of an unfair-labor-practice complaint, Resp t s Opp. to Pet. for Mandamus 9, In re SFTC LLC, No (D.C. Cir. Apr ) ( SFTC Opp. ), or the Acting General Counsel s refusal to direct Board personnel under his supervision to suspend the proceedings, see supra at 6 n.5. The Board has argued in opposing other mandamus petitions that parties whom the Board s agents have forced to litigate similar unlawful proceedings do have an adequate remedy because they may litigate their cases before the Board, and then seek judicial review of a final Board order under Section 10(f), 29 U.S.C. 160(f). SFTC Opp But that supposed alternative deprives the Companies of the very relief they seek: It would require them to expend massive resources litigating before the agency first taking part in a costly hearing before an ALJ, and then pursuing appellate review by the Board which is precisely the harm that the Companies and other similarly situated litigants ought not suffer. Review after further agency proceedings cannot afford the Companies the desired relief. 8

17 Indeed, the Board s demand that litigants first challenge the agency s authority to act before the Board is disingenuous. The Board has steadfastly refused to entertain such challenges. Before this Court s ruling in Noel Canning, 705 F.3d 490, the Board explicitly declined to determine the merits of claims attacking the validity of Presidential appointments to positions involved in the administration of the Act, including claims assailing the validity of the January 2012 appointments. Ctr. for Soc. Change, Inc., 358 NLRB No. 24, 2012 WL , at *1 (2012). And since Noel Canning, the Board has simply rejected this Court s ruling, asserting that the Board and its agents can continue acting because the January 2012 appointments validity remains in litigation, and other courts have taken different views on the limits on recess appointments. Bloomingdale s, Inc., 359 NLRB No. 113, 2013 WL , at *1 (2013). But see infra at Forcing litigants to press their claims before the agency and requiring the use of government resources to hear and contest those claims thus would be futile. What is more, under Noel Canning, parties may assail the Board s authority to act, including based on the January 2012 appointments invalidity, whether or not they raised such claims before the Board. 705 F.3d at ; cf. Ass n of Nat l Advertisers, Inc. v. FTC, 627 F.2d 1151, (D.C. Cir. 1979) (exhaustion doctrine did not bar review of challenge to FTC Chairman s continued participation in proceedings). The Board s claim that review only after the agency litiga- 9

18 tion is complete offers an adequate remedy is thus plainly incorrect. Only relief from this Court stopping the litigation now can redress the Companies grievance. 6 II. THE COMPANIES HAVE A CLEAR AND INDISPUTABLE RIGHT NOT TO FACE PROCEEDINGS THAT THE BOARD S AGENTS LACK POWER TO CONDUCT. The Companies are plainly entitled to mandamus relief to halt the Board s unlawful proceedings because, under the Act and controlling precedent, those proceedings are ultra vires. The Supreme Court s and this Court s case law establish that the Board itself, and any agent to whom the Board delegates its authority, cannot wield any power the Act confers on the Board unless the Board has a quorum of three validly appointed Members when the action is taken. See New Process Steel, 130 S. Ct. at ; Laurel Baye, 564 F.3d at And this Court has held that the Board has in fact lacked a quorum since at least January 3, See Noel Canning, 705 F.3d at Neither the Board nor its delegees, therefore, could lawfully issue the unfair-labor-practice complaints against the Companies in April 2013, and cannot now prosecute those complaints or initiate other litigation. The Companies right to relief is therefore clear and indisputable. 6 The same is true of litigation that the Board or its agents might commence under Section 10(j) of the Act, 29 U.S.C. 160(j), seeking preliminary-injunctive relief against the Companies which Board personnel in Region 29 are currently seeking authorization to pursue. Add. 29. Although the Companies could contest a suit seeking to impose a Section 10(j) injunction, 28 U.S.C. 1292(a)(1), they could do so only by engaging in further burdensome litigation that the quorum-less agency has no authority to initiate or prosecute. 10

19 A. Neither The Board Nor Its Agents May Exercise The Board s Powers Under The Act Because The Board Lacks A Quorum. 1. Both Congress and the Supreme Court have made clear that the Board may exercise its powers under the Act only when it has a lawful quorum. Section 3(b) of the Act, 29 U.S.C. 153(b), establishes that three members of the Board shall, at all times, constitute a quorum. Id. That provision, the Supreme Court held, means exactly what it says, and requires three participating members at all times for the Board to act. New Process Steel, 130 S. Ct. at 2640 (quoting 29 U.S.C. 153(b)). When the Board s membership falls below three lawfully appointed Members, the Board has no authority to act. See id. at Any action it purports to take is void ab initio. Noel Canning, 705 F.3d at 493. As this Court has further explained, the Board s loss of a quorum prevents not only the Board itself from exercising authority under the Act, but also precludes anyone else from wielding that authority on the Board s behalf. See Laurel Baye, 564 F.3d at [B]asic tenets of agency and corporation law establish that an agent s delegated authority terminates when the powers belonging to the entity that bestowed the authority are suspended or upon the resignation or termination of the delegating authority. Id. at 473. It follows that no agent to whom the Board has delegated authority may continue exercising it when the Board loses its own ability to act. See id. ( The delegee s authority to act on behalf of the Board therefore ceased the moment the Board s membership dropped below its 11

20 quorum requirement of three members. ). The Board, in short, cannot by delegating its authority circumvent the statutory Board quorum requirement, because this requirement must always be satisfied. Id. 2. Under these controlling precedents, both the Board and its agents have been powerless to act at all times relevant to the unfair-labor-practice actions at issue. Indeed, as this Court recently held, the Board has lacked a quorum of three validly appointed Members since at least January 3, 2012, long before the events at issue began. See Noel Canning, 705 F.3d at Until then, the Board purportedly had three Members: Chairman Mark G. Pearce, and Members Brian Hayes, whose term expired in December 2012, and Craig Becker. Id. at Even assuming that Becker s appointment was valid, 8 that putative appointment expired, and the Board lost its quorum, when the Senate s Session ended on January 3. See 705 F.3d at On January 4, the President attempted to restore the Board s quorum by naming three new Members: Sharon Block, Terence F. Flynn, and Richard F. 7 See NLRB, Board Members Since 1935, (all Internet materials last visited May 29, 2013). 8 Unlike Pearce and Hayes, who were confirmed by the Senate, Becker was sitting pursuant to a recess appointment purportedly made in March See New Vista, 2013 WL , at *6, *11. As the Third Circuit correctly held, Becker s recess appointment was not valid. Id. at *30. 12

21 Griffin. See Noel Canning, 705 F.3d at But as this Court held in Noel Canning, each of those appointments was invalid. Id. at Article II of the Constitution permits the President to appoint principal officers (which includes Board Members) only with the Senate s consent, see U.S. Const. art. II, 2, cl. 2, subject to just one exception: The Recess Appointments Clause, id. art. II, 2, cl. 3, allows him to fill up all Vacancies that may happen during the Recess of the Senate, by granting Commissions which shall expire at the End of their next Session. Id. As Noel Canning explained, that Clause permits appointments only during intersession recesses i.e., sine die adjournments between numbered Senate Sessions and only to vacancies that first arise during the recess in which the appointment is made. 705 F.3d at On January 4, 2012, however, the Senate was not in the midst of an intersession recess, but an intrasession adjournment. See Noel Canning, 705 F.3d at 506. In any event, each of the vacancies Block, Flynn, and Griffin filled did not arise during that break. Id. at Because none was confirmed by the Senate, they could not and cannot lawfully hold office. Since January 3, 2012, therefore, the Board has had no quorum. Id. at 9 Flynn s appointment expired in July Board Members Since 1935, supra. 10 The Third Circuit agreed that recess appointments are permissible only during intersession recesses. See New Vista, 2013 WL , at * As Noel Canning noted, other circuits have interpreted the Clause differently, but this Court specifically rejected their analyses and holdings. See 705 F.3d at ,

22 514. Any actions by the Board (or its agents, see Laurel Baye, 564 F.3d at ) thus are void. Noel Canning, 705 F.3d at B. The Commencement And Continued Conduct Of Unfair-Labor- Practice Proceedings By The Board s Agents Is Clearly Unlawful. Because both the Board and its agents have been unable to exercise the Board s statutory authority since January 3, 2012, its issuance of the unfair-laborpractice complaints giving rise to the Bronx and Brooklyn Cases and its continued prosecution of those actions are plainly unlawful. Indeed, neither the Board nor any of its agents, including ALJs, have authority to oversee the litigation, or to bring Section 10(j) litigation seeking an injunction. 11 Moreover, the Block, Flynn, and Griffin appointments were independently unlawful because on January 4, 2012, the Senate was not in Recess even by the Executive s own longstanding definition. Since the Executive first claimed power to make intrasession recess appointments of any kind, it has maintained that the Senate cannot be deemed in Recess unless it breaks for more than three days (i.e., long enough to require consent of the House of Representatives, U.S. Const. art. I, 5, cl. 4). See Pet. for Cert. 21, NLRB v. Noel Canning, No (U.S. Apr. 25, 2013); Respondent s Letter Brief 3, New Process Steel, 130 S. Ct. 2635; Executive Power Recess Appointments, 33 Op. Att y Gen. 20, (1921). The Senate, however, held sessions on both January 3 and 6, S. Journal, 112th Cong., 2d Sess. 1-2 (2012); 158 Cong. Rec. S1 (Jan. 3, 2012); 158 Cong. Rec. S3 (Jan. 6, 2012). And, as the Third Circuit correctly determined, see New Vista, 2013 WL , at *19-20, those sessions cannot be discounted merely because the Senate described them as pro forma... with no business conducted, 157 Cong. Rec. S8783 (Dec. 17, 2011). The Senate s determination that it was in session is dispositive, and in any case it was unquestionably available to act on appointments or other matters at those sessions, just as it had during identical pro forma sessions before January 4. New Vista, 2013 WL , at *12, *19. 14

23 1. The Bronx and Brooklyn complaints were unlawful exercises of Board authority. The Act provides that the Board, or any agent or agency designated by the Board for such purposes, shall have power to issue complaints alleging unfair labor practice[s]. 29 U.S.C. 160(b). The Board, by regulation, has designated its regional director[s] as the agents responsible to issue complaints in the name of the Board. 12 When the Regional Directors for Regions 2 and 29 issued the complaints, they purported to exercise authority belonging to the Board, which it had delegated to them. But because the Board lacked a quorum in April 2013, when each complaint was issued, see Add. 1, 13, the Regional Directors could not wield that authority on the Board s behalf. See Laurel Baye, 564 F.3d at The complaints are therefore void, Noel Canning, 705 F.3d at 514, and the proceedings that they instituted are unlawful. The Regional Directors issuance of the complaints and their continued prosecution of the administrative proceedings are independently unlawful, moreover, because the Regional Directors themselves were invalidly appointed. Both the Act and longstanding Board policy establish that appointment of Regional Directors requires Board approval. See 29 U.S.C. 154(a); 20 Fed. Reg. 2175, C.F.R ( [a]fter a charge has been filed, if it appears to the regional director that formal proceedings in respect thereto should be instituted, he shall issue and cause to be served on all other parties a formal complaint in the name of the Board ). 15

24 (Apr. 6, 1955), as amended, see, e.g., 77 Fed. Reg. 45,696 (2012). The Board announced its appointments of Ms. Fernbach and Mr. Paulsen on January 6, But the Board had already ceased to have a quorum at least three days earlier, see Noel Canning, 705 F.3d at ; in fact, the Board had lacked a quorum since August 2011, see New Vista, 2013 WL , at * Both the Fernbach and Paulsen appointments thus were void ab initio. Noel Canning, 705 F.3d at 493. Because neither one legally held office, neither one could wield authority that the Board s regulations (29 C.F.R ) confer exclusively on as a Regional Director. 2. The Board has countered, in both its own rulings and other litigation, that its lack of a quorum does not bar the issuance of complaints because Section 3(d) of the Act gives the General Counsel final authority, on behalf of the Board, in respect of the investigation of charges and issuance of complaints under [29 U.S.C. 160], and in respect of the prosecution of such complaints before the Board. 29 U.S.C. 153(d); see Bloomingdale s, 2013 WL , at *1; SFTC Opp That assertion is both incorrect and irrelevant. 13 See NLRB, Karen Fernbach named Regional Director in Manhattan (Jan. 6, 2012), NLRB, Jim Paulsen named Regional Director in Brooklyn (Jan. 6, 2012), 16

25 a. The Act explicitly confers authority to issue complaints only on the Board, and permits the Board to delegate that task to others as it chooses, 29 U.S.C. 160(b) (emphasis added), which the Board has done by assigning the task to Regional Directors, 29 C.F.R Section 3(d) itself makes clear, moreover, that whatever authority the General Counsel wields with respect to the prosecution of complaints, he exercises on behalf of the Board. 29 U.S.C. 153(d) (emphasis added). The General Counsel thus does not issue complaints in his own name, but is acting for the Board, exercising a portion of the authority that Congress conferred explicitly on the Board, see id. 160(b), but merely allocated within the Board to the General Counsel. 14 b. Even if the General Counsel did have some freestanding authority apart from the Board when it has lost a quorum, however, that authority would have no bearing here. To begin with, the Acting General Counsel himself did not issue the complaints in the Bronx and Brooklyn Cases. Each was issued instead by a Regional Director, explicitly invoking the authority delegated exclusively to them under 29 C.F.R Add. 1, 7, 13, The Board s regulations confirm this: They permit appeal[s] to the [G]eneral [C]ounsel from decisions by Regional Directors the officers to whom the Board has expressly delegated authority to issue complaints, 29 C.F.R not to issue unfair-labor-practice complaints in particular cases. See id

26 c. In any event, whoever issued the complaints, the litigation cannot proceed because neither the Board nor any agent can adjudicate it. The Board itself cannot hear and decide the case, either in the first instance or on review from an ALJ s recommendation. See Noel Canning, 705 F.3d at 493, 514. Any final ruling it issues would be void ab initio. Id. at 493. The Board is equally powerless to render interlocutory rulings during the course of the litigation, as its own regulations contemplate. See 29 C.F.R The Board thus is incapable of performing its fundamental supervisory function in the proceedings it itself has commenced. Just as importantly, no Board agent including an ALJ may conduct a hearing or oversee litigation on the Board s behalf. An ALJ is the agent of the Board, 29 C.F.R , and wields authority to hold hearings, subpoena witnesses, and perform other tasks only because the Board has delegated to him the power to do so. 15 But, as this Court has held, if the Board itself cannot convene hearings or compel parties or witnesses to appear, neither can its agent do so on its behalf. See Laurel Baye, 564 F.3d at It would be a truly bizarre system of civil enforcement that permitted an officer to bring complaints and initiate proceedings notwithstanding the absence of any body to adjudicate such complaints. The Board also has asserted in other cases that Congress intended to preclude all judicial review of the General Counsel s decisions to issue complaints or 15 See, e.g., 29 C.F.R ,.23,.25,.29,.30,.31,.33,.34,

27 not. SFTC Opp & n.11. But the case law the Board has invoked is concerned with interference with the agency s prosecutorial discretion i.e., the weighing of all [the] considerations such as culpability, evidence, prosecutorial resources, and the public interest that facto[r] into the issuance of a complaint. Beverly Health & Rehab. Servs., Inc. v. Feinstein, 103 F.3d 151, 153 (D.C. Cir. 1997). At issue here is not the Board s or any other official s exercise of discretion, but the agency s raw power to issue a complaint. Surely if the Board began issuing complaints asserting not breaches of the National Labor Relations Act, but of the Clean Air Act or the Securities Act, the agency s exclusive discretion over the balancing of prosecutorial interests would not insulate its action from judicial review. A fortiori, such discretion cannot bar judicial relief to prevent prosecution of complaints when the agency cannot issue them at all. C. The Board And Its Agents Lack Authority To Commence Federal- Court Litigation To Seek Injunctive Relief Under Section 10(j). For many of the same reasons that neither the Board nor its agents may initiate or continue unfair-labor-practice litigation before the agency itself, they are equally powerless to commence federal-court litigation seeking injunctive relief under Section 10(j) of the Act, 29 U.S.C. 160(j) as the Board is considering doing in the Brooklyn Case, see supra at 6. Section 10(j) confers power exclusively on the Board to file a petition in district court seeking appropriate temporary relief or [a] restraining order pending resolution of unfair-labor-practice proceedings 19

28 before the agency. 29 U.S.C. 160(j). But neither the Board nor any delegee acting for it may seek such relief while the Board lacks a quorum, see Laurel Baye, 564 F.3d at as it currently does, see Noel Canning, 705 F.3d at Moreover, the Board s alleged delegation of authority to the Acting General Counsel to seek Section 10(j) relief, 76 Fed. Reg. 69,768 (Nov. 9, 2011), was itself unlawful. When that delegation was purportedly made in November 2011, the Board already lacked a quorum because one of the Board s then-members, Craig Becker, held office pursuant to an invalid recess appointment. See New Vista, 2013 WL , at * In any case, the November 2011 delegation was invalid because, by its terms, it would take effect only after the Board lost a quorum and was powerless to act or assign its powers to someone else. Allowing such evasion of the quorum requirement would not merely create a tail that... would continue to wag after the dog died, New Process Steel, 130 S. Ct. at 2645, but indeed a tail that does not even begin to wag until the dog has met its demise. ***** Under binding Supreme Court and Circuit precedent, the Board and its agents had no basis to commence, and have no authority now to continue, proceed- 16 The same was true of two earlier, similar delegations on which the Board has relied. See 67 Fed. Reg. 70,628 (Nov. 25, 2002); 66 Fed. Reg. 65,998 (Dec. 21, 2001); compare Board Members Since 1935, supra (showing dates of recess appointments of Members Walsh, Hurtgen, Bartlett, and Cowen), with Joint Comm. on Printing, 112th Cong., Congressional Directory (2011) (showing dates of Senate sessions). 20

29 ings against the Companies. Despite the Companies request, the agency has refused to halt the proceedings. The Companies are clearly entitled to a writ directing the Board and all of its agents to suspend the unlawful litigation. III. MANDAMUS IS APPROPRIATE TO ENFORCE THIS COURT S ORDERS, PROTECT ITS JURISDICTION, CONFINE THE AGENCY TO THE LAWFUL EXERCISE OF ITS JURISDICTION, AND PREVENT IRREPARABLE HARM. Notwithstanding the Companies clear entitlement under this Court s rulings to be free of these unlawful proceedings, the Board has pressed on, defying this Court s holdings that its actions in the absence of a quorum are void. Noel Canning, 705 F.3d at 514. Mandamus is manifestly appropriate under the circumstances (Belize Soc. Dev. Ltd., 668 F.3d at 730 (quoting Cheney, 542 U.S. at 381)) to end the Board s open disobedience of this Court s directives and its unabashed usurpation of power. Will v. United States, 389 U.S. 90, 95 (1967). A writ also is appropriate to prevent the Board s efforts to evade this Court s jurisdiction and avert imminent, irreparable harm to the Companies and others whom the Board continues to assail with a club it lacks authority to wield. A. Mandamus Is Necessary To End The Board s Ongoing Defiance Of This Court s Rulings. 1. The mandamus relief the Companies seek falls squarely within the writ s traditional use... in aid of appellate jurisdiction both at common law and in the federal courts of confin[ing] an entity to a lawful exercise of its prescribed jurisdiction. Roche v. Evaporated Milk Ass n, 319 U.S. 21, 26 (1943). The array of 21

30 ultra vires actions the writ can remedy is wide-ranging, but at the core are actions [that] would threaten the separation of powers. Cheney, 542 U.S. at 381. Indeed, [a] federal court s power to utilize mandamus to enforce its prior mandate against an administrative agency is firmly established. Iowa Utils. Bd. v. FCC, 135 F.3d 535, 541 (8th Cir. 1998), vacated on other grounds, 525 U.S (1999). A federal court of appeals can use mandamus to preclude an agency from taking steps to evade the effect of its mandate, even if those steps were not expressly contemplated by the prior decision. Id. at 542. That power enables a court to halt agency action that is clearly inconsistent even with the basic themes of [a] decision, 17 or to rectify any deviation from either the letter or spirit of [the court s prior] mandate construed in the light of the opinion of the court deciding the case. 18 Having resolved an issue once, a court plainly may issue a writ to prevent relitigation of issues already decided. Yablonski, 454 F.2d at The Board s unapologetic refusal to obey this Court s clear directives exemplifies the contumacy that the writ exists to police. As discussed above, this Court s controlling precedent leaves no ambiguity about the Board s lack of a quorum and the consequent inability of the Board or its agents to exercise any au- 17 MCI Telecomms. Corp. v. FCC, 580 F.2d 590, 597 (D.C. Cir.) (emphasis added), cert. denied, 439 U.S. 980 (1978) 18 City of Cleveland v. Fed. Power Comm n, 561 F.2d 344, 346 (D.C. Cir. 1977) (quoting Yablonski v. United Mine Workers of Am., 454 F.2d 1036, 1038 (D.C. Cir. 1971)) (emphasis added) 22

31 thority under the Act. See Noel Canning, 705 F.3d ; Laurel Baye, 564 F.3d at By issuing and prosecuting complaints in the absence of a quorum (and threatening additional, more burdensome litigation), the agency thus is acting manifestly in the teeth of the definitive rulings of this Court. Yablonski, 454 F.2d at That disobedience poses a severe threa[t] [to] the separation of powers that amply justifies mandamus. Cheney, 542 U.S. at 381. Indeed, the Board s action flouts not only this Court s authority and Congress s prescription of the quorum requirement, but also the Senate s constitutional role in appointments: Allowing invalidly appointed Board Members to wield federal authority wholly defeat[s] the purpose of the Framers in the careful separation of powers structure reflected in the Appointments Clause. Noel Canning, 705 F.3d at 503. This Court undeniably has power to compel the Board s compliance with the letter [and] spirit of those rulings. Iowa Utils. Bd., 135 F.3d 542; City of Cleveland, 561 F.2d at The Board has countered in other cases that issuance of a writ to end its illegal activities is inappropriate because it is entitled to disregard Noel Canning until such time as the Supreme Court resolves the merits of the issue against the Board. Though it did not seek a stay of this Court s decision pending further appeal, the Board nevertheless claims the right to disregard it simply [b]ecause the question of the validity of the President s recess appointments remains in litiga- 23

32 tion, and other courts (addressing other appointments) have arrived at different answers. SFTC Opp. 8-10, 20-21; cf. Bloomingdale s, 2013 WL , at *1. It contends, moreover, that even though Congress established review as of right of Board rulings in this Court, 29 U.S.C. 160(f), the Board can continue acting because it can seek enforcement of its orders elsewhere, see id. 160(e). See SFTC Opp. 7, 19-21, 27. The Board s claim that its disagree[ment] with this Court s ruling itself authorizes the Board to refuse to comply with the ruling is antithetical to the rule of law. No decision of this Court or any other even remotely supports it. The Board invokes the principle that federal agencies are immune from nonmutual estoppel, see United States v. Mendoza, 464 U.S. 154 (1984), SFTC Opp. 21 & n.20, but that has no relevance. Mendoza merely recognized a limited exception to issue preclusion to ensure the development of important questions of law that otherwise would be hindered by freezing the first final decision rendered on a particular legal issue. 464 U.S. at 160. That exception exists primarily for the Supreme Court s benefit, to enable several courts of appeals to explore a difficult question before [the Court] grants certiorari. Id. This rationale has no application here. The premise of the agency s disregard of this Court s decisions is that a split already exists. 19 Its reliance on other courts recess-appointments rul- 19 See Bloomingdale s, 2013 WL , at *1; Pet. for Cert , 23-24, 31, Noel Canning, No

33 ings none of which involved the Board, or indeed any executive agency 20 to evade a ruling from this Court to which it was a party is badly misplaced. 3. Indeed, by claiming an entitlement to ignore this Court s rulings until a higher court addresses them, the Board asserts an unprecedented authority to stay judicial decisions unilaterally. The Board did not even request, much less obtain, a stay of the Noel Canning ruling from either this Court, see Fed. R. App. P. 41(d)(2), or the Supreme Court, see Sup. Ct. R. 23. It has not even asserted, let alone demonstrated to the satisfaction of a federal court, that the stringent requirements of a stay pending disposition of a petition for a writ of certiorari including a likelihood of irreparable harm 21 are satisfied. Instead it has arrogated to itself the power to decide when an Article III court s ruling shall take effect, seeking to shift onto private parties the burden of proving such harm. The Board s broad claim of power to delay the effect of judicial decisions with which it disagree[s] is only further reason why its overreaching should be repudiated. B. Mandamus Is Appropriate To Protect This Court s Jurisdiction. Mandamus also is appropriate to aid, and prevent evasion of, this Court s jurisdiction. A final Board decision in the underlying actions is directly reviewable 20 Evans v. Stephens, 387 F.3d 1220, 1222 (11th Cir. 2004); United States v. Woodley, 751 F.2d 1008, 1009 (9th Cir. 1985); United States v. Allocco, 305 F.2d 704, (2d Cir. 1962). 21 Conkright v. Frommert, 129 S. Ct. 1861, (2009) (Ginsburg, J., in chambers); see also, e.g., Nara v. Frank, 494 F.3d 1132, 1133 (3d Cir. 2007). 25

34 in this Court. See 29 U.S.C. 160(f). To be sure, the Court s direct review of Board rulings is limited to final orders. See id. A court, however, need not wait for a matter to become final and within its appellate jurisdiction to issue a writ of mandamus, but instead may act even though no appeal has been perfected... to protect its prospective jurisdiction. 22 A court is not powerless when an agency seeks to forestall legally required action and deprive injured parties of an expeditious path to a reviewable final disposition. TRAC, 750 F.2d at 72. A court likewise need not sit idly where, as here, an agency prosecutes unlawful proceedings that impose tremendous harms on private parties. The Court, of course, can later declare the agency s actions illegal. But waiting until then would preclude the Court from preventing the severe and unjustified consequences of the Board s actions on unwilling litigants, and the attendant abuse of the public fisc. And until the agency s ability to act is definitively adjudicated by an authority it is willing to recognize, the Companies will have no repose, at risk of facing future complaints without a resolution of the Board s authority to bring them. Until the Board regains a lawful quorum, neither the Companies nor any other party will realize even the benefits of agency expertise, let alone secure the certainty to which they are entitled. TRAC, 750 F.2d at Telecomms. Res. & Action Ctr. v. FCC (TRAC), 750 F.2d 70, 76 (D.C. Cir. 1984) (quoting FTC v. Dean Foods Co., 384 U.S. 597, (1966)) (emphasis added); see also In re City of New York, 607 F.3d 923, 939 (2d Cir. 2010). 26

35 The Board elsewhere has suggested that a writ is nevertheless inappropriate because review of final Board action or a Section 10(j) injunction might lie in another circuit, and thus this Court might never have jurisdiction to protect. 23 But the power to protect prospective jurisdiction is not diminished by the fact that another court may share in that jurisdiction. See, e.g., Iowa Utils. Bd., 135 F.3d at 542 (rejecting argument that mandamus relief was inappropriate because review of agency action inconsistent with prior court order was available only in another court). As this Court has explained, moreover, its authority to issue writs in aid of its jurisdiction supports an ultimate power of review and extends to those cases which are within its appellate jurisdiction although no appeal has been perfected. TRAC, 750 F.2d at 76 (citation omitted). The Board s reasoning would eviscerate this authority, restricting the Court only to the issuance of writs in aid of jurisdiction already acquired by appeal. Id. (emphasis added). This is not the law. 24 C. Mandamus Would Avert Irreparable Harm To The Companies And The Public. There is no question that the ultra vires actions of the Board and its agents will cause irreparable harm absent the issuance of a writ of mandamus. The only 23 See, e.g., Resp t s Opp. to Pet. for Mandamus 12-13, In re Geary, No (D.C. Cir. Mar ) ( Geary Opp. ). 24 See, e.g., Teamsters Local 75, 349 NLRB No. 77, 84 (Jan. 26, 2007) (Schaumber, dissenting) (noting Court s issuance of writ of mandamus to Board); see also Iowa Utils. Bd., 135 F.3d at

36 question is whether the harms threatened by the Board s illegitimate activities are sufficiently grave and irreparable to warrant mandamus relief. They are. Indeed, the fact that the Board s continued action is premised on purported appointments that this Court has held unconstitutional, see Noel Canning, 705 F.3d at , by itself establishes irreparable harm, for [i]t has long been established that the loss of constitutional freedoms, for even minimal periods of time, unquestionably constitutes irreparable injury. Mills v. Dist. of Columbia, 571 F.3d 1304, 1312 (D.C. Cir. 2009) (internal quotation marks omitted). Moreover, the Companies will be compelled to expend massive resources in litigation fighting action this Court already has declared void ab initio. Noel Canning, 750 F.3d at 493. Once expended, those resources can never be recouped. Even a ruling by this Court holding that the Bronx and Brooklyn complaints were unlawfully issued could not recompense the Companies for the burdens of litigating. 25 Worse, if the Bronx and Brooklyn Cases are deemed nullities, the Companies may be forced to incur these costs a second time if the Board seeks to restart the litigation and conduct a second trial once it regains a quorum. 25 See Wash. Metro. Area Transit Comm n v. Holiday Tours, Inc., 559 F.2d 841, 843 n.2 (D.C. Cir. 1977) (economic harm can be irreparable injury if no adequate compensatory or other corrective relief will be available at a later date (citation omitted)); see also Philip Morris USA Inc. v. Scott, 131 S. Ct. 1, 4 (2010) (Scalia, J., in chambers) ( [i]f expenditures cannot be recouped, the resulting loss may be irreparable ). 28