Notice & Comment

D.C. Circuit Review – Reviewed: Curious Order 

In Absolute Healthcare v. NLRB, the D.C. Circuit granted a petition to review (in part) an NLRB order finding that an employer committed unfair labor practices and ordering various remedial measures. But to describe the decision in this way is to obscure a rather unusual feature of the case. Here is how Judge Walker, in a concurrence, described the decision under review: 

The employer in this case operates “marijuana dispensaries” around the country. The alleged unfair labor practice in question was terminating an employee for “a litany of missteps,” including dispensing incorrect quantities of marijuana and mishandling cash (in which her employer must deal because its business violates federal law).  

The NLRB charged the petitioner with violating federal labor law by interfering with its employees’ efforts to unionize. The panel (Judge Millett, joined by Judges Walker and Ginsburg), found that the NLRB’s conclusion that the petitioner terminated its wayward employee for union activity was not supported by the substantial evidence, and that the remedies NLRB ordered were therefore improper. It otherwise granted the NLRB’s cross-petition for enforcement.  

Judge Walker questioned whether NLRB has authority to regulate the labor practices of a business that engages in no legitimate interstate commerce. But evidently (and unsurprisingly), Curaleaf did not raise the argument, so Judge Walker concurred even in granting NLRB’s cross-petition for enforcement. 

A curious order indeed.  

Curious ordering features in two other semi-administrative law decisions this week. Semi-administrative because they concern not executive bodies but legislative ones. And that is part of the challenge: the plaintiffs in Leopold v. Manger and Schilling v. U.S. House of Representatives asserted a common-law right of access to public records and documents belonging to a House committee, its members, and the Capitol Police. Courts have recognized a right of access to public documents of the executive and judicial branches but have never analyzed the right’s applicability to the legislative branch (except in a drive-by fashion). The panel (Pillard, Wilkins, and Childs, with Wilkins and Childs writing) confirmed that the right does extend to legislative documents. 

Now comes the curious ordering: the defendants in both cases claimed various forms of immunity, which constitute jurisdictional bars. Conventionally, courts must satisfy themselves of their jurisdiction before addressing the merits. Here, however, the Court held that its jurisdiction depended on the merits and therefore skipped other jurisdictional questions (including about the scope of the Speech and Debate Clause) to address the merits of the plaintiffs’ claims. 

Here is Judge Wilkins’ explanation for that ordering: 

Although Mr. Leopold led the panel to the merits, he faltered there. He had failed to plead that the defendants were under a “ministerial duty” to provide the records he requested. Mr. Schilling, too, was out of luck. The documents he requested were (per Judge Childs) not public records. 

The other opinions this week are further afield from administrative law: 

  • In Noble v. National Association of Letter Carriers, the Court reinstated a postal worker’s claim against his union for failing to print his campaign materials in multiple editions of its magazine, purportedly in violation of the Labor-Management Reporting and Disclosure Act of 1959. In the process, the panel (Childs, joined (reluctantly?) by Judge Edwards) held that compelling the magazine to publish Noble’s campaign material would not violate the First Amendment. In a concurrence, Judge Edwards expressed the view that it was unnecessary to reach the First Amendment question. Judge Henderson dissented. She would have affirmed the dismissal of Noble’s claim based on a narrower reading of the statute. 
  • In United States v. Webster, the Court (Millett, joined by Katsas and Rao) affirmed the conviction and sentence of a January 6 defendant. 

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