New Process Steel v. NLRB – Oral Argument – March 23, 2010

Media for New Process Steel v. NLRB

Audio Transcription for Opinion Announcement – June 17, 2010 in New Process Steel v. NLRB

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John G. Roberts, Jr.:

We will hear argument this morning in Case 08-1457, New Process Steel v. The National Labor Relations Board.

Mr. Richie.

Sheldon E. Richie:

Mr. Chief Justice, and may it please the Court:

The issue in this case is whether the National Labor Relations Board can continue to issue adjudicatory decisions when its membership falls to two.

The National Labor Relations Act clearly states that at all times, a quorum of the board will be not less than three members.

The board’s interpretation–

Antonin Scalia:

Is it your position that all of the actions of the board, including those taken by the regional offices and by the general counsel and by everybody else, is inoperative once — once the membership falls below three?

Sheldon E. Richie:

–No, Justice Scalia, particularly with respect to the general counsel, the statute at 153(d) has a separate enumeration of — of obligations and powers and authority, so we don’t think that that fails.

We also think that, with respect to certain administrative type functions–

Antonin Scalia:

Well, it has a separate — a separate authorization for these three — three-person adjudicatory panels as well, doesn’t it?

Sheldon E. Richie:

–It has — it does, Justice Scalia.

It does have a separate authorization for panels of three or more members.

It does not have, as in this case, a separate authorization for panels of two members.

Antonin Scalia:

Okay.

But that’s a different argument from the argument you were starting off with, which, as I understood it, was once the membership of the board falls below the quorum of three, by reason of that, the three — former three-member panels, of which there are now only two left, cannot act.

Is that your argument?

Sheldon E. Richie:

It is our argument that the — that once the membership falls below three, that the National Labor–

Antonin Scalia:

The membership of the board?

Sheldon E. Richie:

–I’m sorry, Your Honor?

Antonin Scalia:

The membership of the board?

Sheldon E. Richie:

When the membership of the board falls below three.

But we also believe that when the membership of the group falls below three, that the delegee group’s authority to make adjudicatory decisions lapses.

Antonin Scalia:

I understood that argument and I thought that was the only one you were making.

But you are making a broader one, that it also happens whenever the — whenever the board’s quorum disappears.

Sheldon E. Richie:

You are correct, Justice Scalia.

We are making that argument.

It’s because of the first sentence of 153(b), which states that the delegations have to be to members of three or more members.

Antonin Scalia:

So the regional offices can’t function, of the NLRB?

Sheldon E. Richie:

Well, we believe they can function.

They can receive, for example, unfair labor practices complaints.

Sheldon E. Richie:

They can’t make adjudicatory decisions.

And we think that that is exactly what–

Antonin Scalia:

Can the board pay salaries?

Sheldon E. Richie:

–We believe they can, because there is probably a different statute that enumerates that, Justice Scalia, other than this statute with respect to the authority with respect to adjudicatory decisions.

Antonin Scalia:

I’m really reluctant to rely upon this first argument that you are making, because I really don’t know what it does to all of the functioning of the board.

Sheldon E. Richie:

Well, one of the — Justice Scalia, one of the things that we think is clear is that the remedy for fixing an undersized board is not for the board to redefine itself and to read the statute, but for Congress or the president to act.

And there are many ways in which the president and Congress could — could fix the problem of an undersized board.

Ruth Bader Ginsburg:

But here the court of appeals said that the Act does two things.

First, it said that the full board can delegate full powers to any three-member group.

That was step one, and that was done here.

And then it says there’s this rule that a quorum is three, but then it said: Except as to one of these three-member groups that has been designated, except, and there the quorum is two.

So why doesn’t the statute answer the question that, yes, a quorum is three, except when it’s two?

Sheldon E. Richie:

Well, I think there is two answers to that, Justice Ginsburg.

One is here the government — the board takes the position, as they say on page 29 in a footnote to their brief, that when a delegate group possessed of all of the board’s power acts, it is acting as the board and not as an agent of the board.

So first, we would say that the second quorum provision isn’t even applicable to this group that was established — of members Kirsanow, Liebman and Schaumber.

And so we think the three-member quorum–

Antonin Scalia:

I didn’t understand that.

Would you — would you make that argument again?

Sheldon E. Richie:

–Certainly, Justice Scalia.

The government — I’m sorry, “the government”.

The NLRB in its brief in footnote 21 on page 29, as well as in the delegation, the minutes of the delegation in 2007, which are found in our brief in the appendix on — I think it’s pages 4a and 5a.

Both say that when — the NLRB says in the footnote

“When the delegee group possessed of all of the board’s powers. “

which is what we have here,

“acts, it is acting as the board and not as an agent of the board. “

“So our position is that when you become the board, as this group did, now you are subject to that minimum three-member delegee — three member quorum requirement. “

Ruth Bader Ginsburg:

But it’s not an agent of the board because the three-member group that has a quorum of two has the full powers of the board.

So the statute doesn’t say anything about a three-member group that has a quorum of two being an agent of the board.

Sheldon E. Richie:

It’s a — it’s a group that is delegated authority, and therefore, whether it’s a full delegation or partial delegation, we believe that the common law principles of agency and principal make that delegee group an agent.

Ruth Bader Ginsburg:

But where does the statute make that three-member group with a quorum of two, a quorum of two, an agent?

Ruth Bader Ginsburg:

It says they may be designated to exercise any and all powers?

Sheldon E. Richie:

Justice Ginsburg, it does not say the word “agent” in it.

But the delegation that it’s referring to is at common law a principal-agency relationship.

So it’s our position that once that delegation occurs that the — in a normal situation, because you could have a three-member group of four members, a board of four or a board of five, and you could have a group with three members.

When the delegation is made, it’s our position and we believe that this is the position that the D.C. Circuit took as well, that that’s an agent of the board.

Stephen G. Breyer:

You should — you should have a very direct answer to this question.

Were you finished, because I don’t want to interrupt that train of thought?

Ruth Bader Ginsburg:

The D.C. Circuit I think was the source of your opening argument because they said when the number drops below three there is no board, and I guess that’s what your opening argument was based on.

Sheldon E. Richie:

Yes, Justice Ginsburg, it did say that.

But it also went on to say that it was applying the rules, the common law rules of principal and agency, and that when the board without three members lost its authority to act, that the delegee group to which the delegation was made also lost authority to act.

And in this case that’s exactly what happened.

We had a three-member board — we actually had four delegate to three, and then two terms expired.

Anthony M. Kennedy:

Well, just on this same point before Justice Breyer I think moves to another point.

The statute does use the word “quorum” twice and, as Justice Ginsburg has pointed out, except that two members — in its last phrase it uses the word “quorum” twice:

“Except that two members shall constitute a quorum. “

It doesn’t say two members may act.

Sheldon E. Richie:

Justice Kennedy–

Anthony M. Kennedy:

It says “shall constitute a quorum”.

Sheldon E. Richie:

–Justice Kennedy, I think we have to start first — and you are correct, there are two quorum provisions, but “quorum” is not defined differently.

Quorum — I think we agree within NLRB that a quorum is the minimum number of members of a body necessary to transact business.

We have two different bodies defined in this statute.

We have the board as one body and we have the group as a different body.

And so when the — when the exception appears in the statute, we agree again with the D.C. Circuit’s interpretation of that as simply defining two different numbers of people necessary to fill out a quorum of these two different bodies that are defined within the statute.

Stephen G. Breyer:

Can you — can you — if you are right, it seems to me you should have a very clear, concise answer to the question that I’m just going to ask you.

And this is the question: Imagine that there was no delegation, none.

Now we have five members; is that right?

One of them dies.

So there is a vacancy.

Now, can the remaining four exercise the board’s power?

Sheldon E. Richie:

Clearly.

Stephen G. Breyer:

Clearly.

Okay.

So what is the difference between the situation I just described and this situation where the Board simply delegated its power to three people and one of them dies?

What’s the difference?

I can’t find any difference in the language.

So what is the difference?

Sheldon E. Richie:

Justice Breyer, the difference is that in this statute there is a clear statement that at all times the board must have a three-member quorum.

In your hypothetical there were still four members.

Stephen G. Breyer:

Correct.

Sheldon E. Richie:

The board was still in place.

Stephen G. Breyer:

Except that two members shall constitute a quorum of any group designated pursuant to the first sentence, which says

“The board is authorized to delegate to any group of three all of the powers which it may itself exercise. “

So, what’s the difference?

Sheldon E. Richie:

Well, the difference is that once the — the difference between the hypothetical and the situation we are in is that there were four members, and the statute–

Stephen G. Breyer:

Well, I know that, but I’m asking why does that make a difference?

Sheldon E. Richie:

–It makes a difference because the statute requires that at all times the board shall have a quorum of three members, a minimum quorum of three members.

Stephen G. Breyer:

Except.

Sonia Sotomayor:

But isn’t that tied to a quorum for the board as a whole to act?

Once it’s delegated a responsibility to a three-member board, it’s already said, unless it takes another vote, that it’s going to let those three people decide.

It has — I understand the word “delegated” to mean it’s given over its power to a subgroup.

If it wants to take it back, it needs a quorum to do that.

That’s what I understand.

Sheldon E. Richie:

Well, I think the problem is, Justice Sotomayor, that the delegation to a group of three is indeed a valid delegation.

We don’t contest that.

But what we have here is a phantom group.

And what the — what the board said, because member Kirsanow’s term expired in December, about 11 days after the delegation.

And if you look at the minutes of the board when they are delegating to the group, it says in the minutes that they

“are continuing to be a two-member quorum of a three-member group. “

as if member Kirsanow is a phantom.

It’s a fiction.

Sheldon E. Richie:

The group ceases to exist and the board — it’s not just that the board falls below three and the board ceases to exist with all delegated powers to this group.

The group ceases to exist.

Anthony M. Kennedy:

But that brings you back to Justice Breyer’s hypothetical.

There’s five members on the board.

Clearly they can delegate under the statute.

Now there are only four members.

Something happens to the fifth.

Under your theory, the entity that originally delegated no longer exists and therefore the group, the entity that received the delegation of powers, must cease, must cease to act.

Sheldon E. Richie:

Justice Kennedy, I–

Anthony M. Kennedy:

If the quorum of three that authorized two to act disappears and that means the principal is no longer there, so the agent can’t exercise the authority, why isn’t it the same when five become four?

Sheldon E. Richie:

–Well, we believe that the reason that it isn’t, Justice Kennedy, the same is — terrible sentence.

It’s not the same because the statute contemplates vacancies on the board and multiple vacancies, so long as they don’t go below three.

The statute — the vacancy clause in the statute doesn’t apply to a group at all.

So the delegating group in the hypothetical clearly is still in place as the board because it’s the board that delegated.

And the board still exists.

Samuel A. Alito, Jr.:

As far as the interests of your client are concerned, is there any functional difference between what happened here and what could happen very routinely even if the board had five members, namely that after the case was assigned to a three-member panel one of the three members of the panel became unable to sit on that case, but the remaining two members were able to reach agreement so the case could be decided?

Sheldon E. Richie:

Justice Alito, the difference is that here there was never a way to reconstitute this board — I’m sorry, the group — as three members.

When you have five or you have four members of the board and a member of a three-member group is unable to perform his or her function–

Antonin Scalia:

Isn’t there another difference?

Is it not the case that the decisions of these panels can be appealed to the full board?

Are they automatically final?

Can the board not revise the decision of one of its panels?

Sheldon E. Richie:

–Well, I believe that the board could revise the decision of one of its panels.

Antonin Scalia:

Well you — you’ve got to tell me more than you believe in it, what — what — what is the case?

Sheldon E. Richie:

The adjudication is final.

Antonin Scalia:

The adjudication is final.

Sheldon E. Richie:

Of the three-member group.

Antonin Scalia:

There is no appeal to the full board?

Sheldon E. Richie:

That is correct.

Stephen G. Breyer:

Then what is the reason — I now see.

Stephen G. Breyer:

Your answer to my question is that the–

vacancy clause applies to the full board but not to the group.

Sheldon E. Richie:

That’s correct, Justice Breyer.

Stephen G. Breyer:

–Okay.

Now, got that answer.

And now I see how you could read the statute that way.

So, now I would like — and that would be in your favor.

Sheldon E. Richie:

That’s true.

Stephen G. Breyer:

And — and, therefore, I would like to know, since you could also read it the other way, why should it be read your way?

I mean, I can think of a lot of reasons why not.

One is something that Justice Scalia was raising: It may work havoc as to what remains effective, what doesn’t, what about the board staff decisions, which are, which aren’t.

I can see a lot of reasons for not doing it.

But what are your best reasons for reading that vacancy clause the way you want me to read it?

Sheldon E. Richie:

Justice Breyer, we — we believe that it is important to have a promote — to have a robust debate and an expression of — a potential for expression of dissent.

And what you have here is you have two members in a group and — who have publicly announced that on more than one occasion over the last 2 years plus 3 months when this board has sat with only 2 members, that they have sometimes compromised their opinions in the interest of the institutional purposes, basically to keep the doors open.

And so you don’t have a full and robust debate.

You don’t have the potential for an expression of a dissenting view, and that’s the — that’s the distinction that we see.

Sonia Sotomayor:

But the problem is that that exists whether we read your rule or not in the way you want.

You have — you’ve conceded that a three-member board could lose a member, a three-member group could lose a member and its acts still be binding, as long as you say there is — there is three members on the full board.

But this lack of opportunity for dissent exists any time there is a vacancy.

You just don’t like the system.

Sheldon E. Richie:

Justice Sotomayor, if we consented that when there was an absence, a member who dies, retires, is incapacitated, that the two members of a properly constituted three — three-member group could still function, I certainly did not mean to say that.

We do not consent to that or agree with that proposition.

What — what somebody–

Sonia Sotomayor:

I’m sorry.

You are now saying that the group always has to be three members?

Sheldon E. Richie:

–Yes.

Sonia Sotomayor:

That somebody can’t die, leave, recuse themselves from that group without invalidating the actions of that subgroup.

Where in the statute do you read that limitation when it says a quorum of two is okay to act?

Sheldon E. Richie:

The definition of a quorum, Justice Sotomayor, is the minimum number of persons of a body necessary to transact business.

Sheldon E. Richie:

The body here is defined as three or more people.

So, when the–

Sonia Sotomayor:

No, I am talking about the group.

Sheldon E. Richie:

–I am, too.

Sonia Sotomayor:

So the group is not defined as three or more people.

It’s defined as three.

The board is defined as three or more.

The group is defined as three.

So I’m — I’m a little confused.

Sheldon E. Richie:

In the statute, the group is defined as — the board is authorized, and I’m reading from 153(b), Appendix 1a to our brief:

“The board is authorized to delegate to any group of three or more members– “

Sonia Sotomayor:

I see.

Sheldon E. Richie:

–“any or all” — that is where we find it necessary that the group must contain at least three members.

Antonin Scalia:

That’s — that’s a totally different argument from the one that relies upon the size of the board, right?

Sheldon E. Richie:

It is, and we think it’s an additional argument.

We think there’s multiple–

Antonin Scalia:

Even if the board were still properly constituted and had a full five members, if one of the three members to a — a board should die, it would no longer be a three-member board and could no longer be, as your argument goes, the recipient of the delegation, right?

Sheldon E. Richie:

–That’s correct, Justice Scalia.

But what’s happened routinely for — for 60 years since 1947 when Taft-Hartley was passed, is that what the board did was it reconstituted the panels any time a member died or retired.

Ruth Bader Ginsburg:

There have been situations before where the board dwindled to two members.

Is this the first time that the board has continued to adjudicate the cases that they can, or when there were prior periods with only two did the board continue to adjudicate?

Sheldon E. Richie:

This is the first time, yes.

For over — from 1947 through 19 — up to 2007, any time the board fell to two members — as far as we know, any time the board fell to two members, the board reconstituted — I’m sorry.

Any time a group fell to two members, the board reconstituted the group to a three-member group.

Samuel A. Alito, Jr.:

There is a well-established practice on the court of appeals that when a three-judge panel for some reason loses one of the members due to a death or resignation or recusal, the panel can continue to decide the case if the remaining two judges can agree.

And — and do you see — do you think the — the situation is different with the NLRB for some reason?

Or do you think that that — that those decisions on the courts of appeals are unlawful as well?

Sheldon E. Richie:

Well, Justice Alito, I think it’s a different statute.

But we also — I also think the court of appeals, which is the delegating body that forms the — the three-member courts, still is in existence.

And if we just–

Antonin Scalia:

Well, you are shifting arguments.

You can’t keep jumping back and forth between the two arguments.

The one is that the appointing body has to still be fully constituted, or at least have a quorum, and the other one, which I thought Justice Alito was addressing, is the quite separate argument that the recipient of the delegation has to be three.

And when it falls below three it’s only two.

And I don’t know that you have a response to — to — to his point, with respect to the latter argument, except — except that it’s a different statute.

Sheldon E. Richie:

–Well, Justice Scalia, it’s a different statute but it’s also a very temporary and limited circumstance.

You have a panel that was formed to hear a case.

Here you have got a delegation of all the authority, the board has — the group has become the board, and we effectively have a two-member National Labor Relations Board.

Stephen G. Breyer:

So I would have thought, but this is only me — other people don’t necessarily go in for this kind of argument.

But in thinking of the — the — the arguments in your favor, the one that sort of resonated a bit with me was that this is a very Republican Congress in 1947 that passed Taft-Hartley, and one of the things they were really aiming at was to move the board from three to five.

And this is a way so that that just doesn’t happen.

But I assume from the briefs filed that there is no supporting legislative history for that, what I’ve just said, so I better wipe it out of my mind.

[Laughter]

Antonin Scalia:

If there is no legislative history, it could be true.

[Laughter]

Sheldon E. Richie:

Justice Breyer, the legislative history I think is — there is no legislative history on what happens when the board falls below two members.

But it is clear that from 1935 to 1947, the board was made up of three members, and the statute clearly said under the Wagner Act two members could be a quorum of a three-member board.

In 1947 when Taft-Hartley was passed, Congress intentionally increased the quorum and increased the size of the board.

If it had intended to have only two members serve at any time as a two-member board, they would not — that would be a strange way to do it, in a statute that not only increases the size of the board, but changes the minimum quorum requirement from two to three.

Samuel A. Alito, Jr.:

I was surprised by your answer to — I was surprised by your answer to one of the earlier questions, because one of your amici says that any member of the board, regardless of whether he or she sits on the panel hearing a case, may request that the case be heard by all five board members.

Is that — is that not correct?

Sheldon E. Richie:

That is correct, but that’s to hear it as opposed to overturn it once the decision is made.

Ruth Bader Ginsburg:

Heard an initial — an initial decision.

But just — the review of the panel is in the court of appeals, right?

Sheldon E. Richie:

That’s correct, Justice Ginsburg.

Ruth Bader Ginsburg:

So you could have initially a panel of five, but that would not be reviewing the panel of three?

Sheldon E. Richie:

That’s correct, Justice Ginsburg.

The — the — the five-member board would not review the three-member group’s decision.

But in response to Justice–

Antonin Scalia:

What’s the use of having a five-member board, then?

Antonin Scalia:

I really don’t understand what — what has been accomplished–

Sheldon E. Richie:

–What was–

Antonin Scalia:

–if you have a — you are changing, oh, we had a three-member board, that’s no good, we thought that’s unfair.

We are going to make to five.

But then we allow the five to convert themselves to three for finally deciding all the cases.

What — what has been accomplished?

Sheldon E. Richie:

–Multiple–

Antonin Scalia:

Nothing.

Sheldon E. Richie:

–I’m sorry, Justice Scalia.

Multiple members of three.

And so before you had a — a — without a delegation, you had a group of three members.

They could — that group could hear — or board–

Samuel A. Alito, Jr.:

The amicus says that the members of the board not serving on a panel are given the opportunity to review draft decisions, thus no case will issue unless it reflects the majority opinion of the full board.

Sheldon E. Richie:

–It’s a draft–

Samuel A. Alito, Jr.:

So that can be, in effect, the opportunity for full board review before a draft decision is issued in final form; is that the way it works?

Sheldon E. Richie:

–Yes, Justice Alito, it does.

John G. Roberts, Jr.:

Only–

Sheldon E. Richie:

That’s not–

John G. Roberts, Jr.:

–Only if a majority of the board wants to do that, right?

Sheldon E. Richie:

–No, Mr. Chief Justice.

John G. Roberts, Jr.:

One member of the full board can overturn a group delegation, in other words, and hear the initial decision?

Sheldon E. Richie:

No, Mr. Chief Justice.

They can agree to — to review the decision and they can agree before the decision is made to join the panel, basically is what they do.

John G. Roberts, Jr.:

What if one board member wants to do that and four don’t?

What happens?

Sheldon E. Richie:

One member wants to join the panel?

John G. Roberts, Jr.:

One member wants to review the group’s decision.

Sheldon E. Richie:

That member would review the group’s decision.

He wouldn’t be able — he or she wouldn’t be able to overturn the group’s decision.

Antonin Scalia:

What — I am really confused now.

Antonin Scalia:

Is it or is it not the case that the full board has the power to review a decision of one of these panels?

Before you said no; before you said it’s final.

Sheldon E. Richie:

The decision is final once it is rendered.

They can review the decision in draft form before it is–

Antonin Scalia:

But that is — that is my question, whether they — they can review it before it is rendered, is that what you are saying?

Sheldon E. Richie:

–They can do that or they can ask to be included on the — on the panel.

Antonin Scalia:

They can review it before it is rendered.

Okay.

Sheldon E. Richie:

But they can’t overturn it.

Ruth Bader Ginsburg:

Is this different from the practice that some courts of appeals follow of circulating a panel decision to the full court some days before it’s issued to the public?

That doesn’t put the non-panel members on the panel.

Is this practice that you are describing the same or is it different?

Sheldon E. Richie:

I believe it’s the same, Justice Ginsburg, that it’s exactly the same.

But — but you have an additional opportunity–

Ruth Bader Ginsburg:

But that’s quite different from the court of appeals sitting en banc.

The practice of circulating the opinion does not put all of the members of the court on the panel.

Sheldon E. Richie:

–That is correct, Justice Ginsburg.

Samuel A. Alito, Jr.:

But it provides an opportunity for them to vote to hear the case en banc before it’s ever issued.

Sheldon E. Richie:

That’s correct, Justice Alito.

It does.

And it — and therefore you have what we don’t have here, is an opportunity for a robust debate.

If there are no other questions I would like to reserve the remainder of my time.

John G. Roberts, Jr.:

Thank you, counsel.

Mr. Katyal.

Neal Kumar Katyal:

Thank you, Mr. Chief Justice, and may it please the Court: We agree that the plain text controls this case and there are three features to that text.

First, section 153(b) permits delegation of any or all of the board’s power to three or more members.

Second, that section sets out a general quorum rule of three members.

And third, as Justices Alito — Justices Alito, Kennedy and Ginsburg have pointed out, there is the phrase “except that” in the rule, a special quorum provision that sets up panel quorums at two members.

And in this case, faced with a vacancy crisis, the board validly delegated its powers in December 2007 to a three-member panel, and Petitioners have never contested otherwise.

Rather, they argue that when the board dropped it down to two members–

Antonin Scalia:

Just before the third member no longer became — no longer was a member of the board.

Neal Kumar Katyal:

–That’s true.

Antonin Scalia:

So knowing when it gave it to this three member panel that it would shortly become a two-member panel, and that thereby the board would be able to act with only two members instead of with three, which is what the quorum requirement for the board is.

I must say that seems to be a very strange procedure when you have a statute that says the board has to — has to have three for a quorum.

When the board sees, oh, God, we are about to lose our third member, let’s set up a three-member panel with this guy who’s about to go off.

It will immediately become a two-member panel and then we can act with only two members.

That’s wonderful.

It doesn’t seem to you like an evasion of the whole purpose of the — of the quorum requirement?

Neal Kumar Katyal:

I don’t think so.

I think it’s precisely what was — what the text allows, because it’s not, Justice Scalia, simply a three-member quorum requirement.

It’s a three-member quorum requirement, “except that”.

John Paul Stevens:

Except — may I just interrupt a bit, just on the “except” clause at the very bottom.

When you are talking about individual cases it’s easy.

Sure, one member dies; the other two can finish.

But you are talking about long-run governance of the board.

The two members — two members shall constitute a quorum of any group designated pursuant to the first sentence.

Now, 2 years later, after — what is the group designated pursuant to the first sentence at the time of the decision 2 years later?

Neal Kumar Katyal:

It is the same group of people that were–

John Paul Stevens:

But there is no such group exists at the time that that power is being exercised.

Neal Kumar Katyal:

–Well, Justice Stevens, the language is written in the past tense.

It’s 10a.

John Paul Stevens:

No, it’s not the past tense.

“Two members shall constitute a quorum. “

Neal Kumar Katyal:

“Of any group designated pursuant to. “

the first sentence.

John Paul Stevens:

But there is no group around at the time they’re — that this case is being decided, that was designated before.

Neal Kumar Katyal:

That group was designated on December 20, 2007, and that met the requirements of–

John Paul Stevens:

But your — your inquiry is focusing on what happens 2 years later.

Neal Kumar Katyal:

–And — and with respect to 2 years later, I submit to you that that penultimate sentence in 153(b) is met.

That is a designated group pursuant to the first sentence.

Anthony M. Kennedy:

Well, I don’t know how you could write the sentence without the “ed” unless you want to say — to make your point, if the statute had been written the other way, to any group continuously being designated.

Neal Kumar Katyal:

Sure, I think you could say something like constitute a — that two members shall constitute a quorum of any group that continues to meet the requirements of the first sentence thereof, or something like that.

Stephen G. Breyer:

To read — you can read the language the way you want, that — because of the vacancy clause.

You see, there is a sentence there that says

“A vacancy shall not impair the right of the remaining members to exercise the power. “

That implies in the absence of that clause, five to four, they couldn’t.

Okay?

Now, you say that clause applies to the remaining members, i.e., to the three.

And now we don’t have three.

And since we don’t have three, there are — and you have to have three.

Because they’re not — there’s not — there are not the remaining members, you see.

Neal Kumar Katyal:

Right.

So let me say a few things about that.

The first is–

Stephen G. Breyer:

As long as there was another member, you could — you could do it.

But without that remaining member, you can’t.

Neal Kumar Katyal:

–So the first thing to say about that argument, Justice Breyer, and it’s one that Justice Scalia brought up to my friend before–

Stephen G. Breyer:

Yes.

Neal Kumar Katyal:

–it is a totally different argument.

It really does rest on the first sentence of 153(b).

Stephen G. Breyer:

Yes.

Neal Kumar Katyal:

And my friend admitted, it’s a totally new, different argument.

Stephen G. Breyer:

Yes.

Neal Kumar Katyal:

It’s not in the question presented.

It’s not before the Court.

But were the Court interested in it, I do think that the language of the quorum provision, “quorum” meaning a number sufficient to transact business, is the most relevant language, and that suggests that two is enough so long as you have that initial delegation to a group of three and then one member drops off.

Antonin Scalia:

Well, don’t — don’t you think it is significant that the — the vacancy clause that you were discussing — where is it?

It’s in (b).

“A vacancy in the board shall not impair the right of the remaining members to exercise all of the powers of the board. “

And it says nothing about a vacancy in the group not impairing the power of the group.

Neal Kumar Katyal:

The — the–

Antonin Scalia:

Which — which buttresses, it seems to me, the argument that when the group is no longer a group of three the delegation is no longer effective.

Neal Kumar Katyal:

–I don’t think so.

The — the language is

“A vacancy in the board — in the board shall not impair the powers of the remaining members of the board. “

Antonin Scalia:

Of the board.

Neal Kumar Katyal:

Of the board.

And–

Antonin Scalia:

But it doesn’t say that about the group.

That’s my point.

Neal Kumar Katyal:

–Well, but by definition, Justice Scalia, the members that had been delegated this power on December 20th are members of the board.

And they are not — they are not simply extraneous actors.

And so the vacancy clause, I think–

Antonin Scalia:

No.

The — this whole passage distinguishes between the board and the group.

I mean, it’s — it doesn’t — it doesn’t mean the group when it says “the board” and the board when it says “the group”.

Neal Kumar Katyal:

–Well, I think it — I don’t know that there is a distinction.

I think that there when they say the board, it by definition includes the group, because that is part of the board.

They aren’t extraneous individuals.

John G. Roberts, Jr.:

So, counsel, if I–

Antonin Scalia:

I’m sorry.

John G. Roberts, Jr.:

–No, go ahead; finish.

Antonin Scalia:

The quorum for the group should be three, then.

Right?

Neal Kumar Katyal:

The quorum — well, except that, Justice Scalia, it says — it goes on to say that the quorum is actually two.

John G. Roberts, Jr.:

Let — let’s say the board delegates to a group the authority to act as the board until December 31st, 2010.

And on December 30th, 2010, the group delegates to itself because it’s acting as the board the authority to act until December 31, 2011.

Is that valid?

Neal Kumar Katyal:

Well, if — if the initial delegation did give any and all of the powers to the–

John G. Roberts, Jr.:

All the powers of the board until December 31st.

Neal Kumar Katyal:

–And then — then I take it, yes, they could exercise that delegation.

John G. Roberts, Jr.:

So a delegee can delegate to itself the full authority of the — the master in the master — agent relationship?

Neal Kumar Katyal:

Under the statute.

Now, there may be other problems with it.

So 153(a), which is found in our brief, in our government brief at page 10a, sets out, for example, removal for cause.

And if some members of a group were somehow–

John G. Roberts, Jr.:

No, no; they are just — you know, they make the distinction that the board should continue to function.

Neal Kumar Katyal:

–Yes.

John G. Roberts, Jr.:

Even though their original delegation was limited to 2010–

Neal Kumar Katyal:

Right.

John G. Roberts, Jr.:

–they, acting as a board, get to delegate to themselves as the group the authority to go beyond that.

Neal Kumar Katyal:

Right.

I suppose that — I mean, it’s not presented here but yes, I suppose that would be permissible.

John G. Roberts, Jr.:

Now, what if the board, consisting of five members — let’s say three Democrats and two Republicans — the three Democrats delegate to a group the authority to act as a board.

They designate themselves as the members of the group.

They have at that point, authorized themselves to act as the board with as little as two members, even though they couldn’t have done that as members of the board.

Neal Kumar Katyal:

I think that’s right, Mr. Chief Justice, and it underscores that the statute itself can’t control all of those problems and whether you set the quorum at three or two, even if you have a full board of five, you can have these machinations that are potentially–

John G. Roberts, Jr.:

Even though the whole — even though the whole purpose of expanding from three to five was to ensure that more than two are required for the board to act?

Neal Kumar Katyal:

–Well, I think that the purpose, as the legislative history reveals, and it’s set out in our brief, was to increase efficiency and to have overlapping panels adjudicating cases.

I do think that there’s a — there’s ways to prevent your situation from happening; that, and they include not just removal for cause, which I think this would be the paradigmatic case if three members of the body were trying to cut out two members from doing their job.

John G. Roberts, Jr.:

Not trying to, but succeeding in doing so.

Neal Kumar Katyal:

Succeeding, absolutely.

And I think–

John G. Roberts, Jr.:

Well, I mean, it depends upon who would remove them for cause.

Neal Kumar Katyal:

–Absolutely.

John G. Roberts, Jr.:

Now, who would remove them?

Neal Kumar Katyal:

It would be the president.

John G. Roberts, Jr.:

Well, what if he’s perfectly content to have two Democrats?

Neal Kumar Katyal:

And then you would have other — you would have other checks as well.

If you had one-party government and all of these factors aligning in the way you are suggesting, you would have the possibility that the circuit court’s review under 160(f) might come into play, I mean, because each board decision can be potentially appealed to a circuit court.

Neal Kumar Katyal:

There is budgetary processes and–

John G. Roberts, Jr.:

I just want to make sure there is nothing to constrain — if you have three Democrats, three — or two Republicans or, of course, the other way around, nothing to constrain them from acting fully as the board with only two — two Democrats?

Neal Kumar Katyal:

–I don’t think the statute itself constrains it–

John G. Roberts, Jr.:

In the statute.

Neal Kumar Katyal:

–under either my friend’s reading or mine.

I think that rather, it is a matter of etiquette, practice, tradition, and all sorts of institutional checks that are laced into the way in which the board–

Stephen G. Breyer:

Is there any other legal — this is what — one thing, if I were thinking without the language for a moment, and I — the Taft-Hartley Congress did, I think, want to limit the powers in a number of ways of the board, maybe expand the membership to be sure there would be both parties in larger numbers.

If you could limit this to adjudications, you would say, well, then they can’t set major policy with just two members.

But I don’t see a way to do that, particularly since the board has often set rules in adjudication which have broad application.

So am I right in thinking that we have to decide either, it is okay for two members to set the most major policies, or we have to say they can’t even conduct adjudication, even the simplest adjudication, even the least significant?

Neal Kumar Katyal:

–I think — I think, Justice Breyer, that the board traditionally doesn’t engage in much rulemaking.

It does make its decisions–

Stephen G. Breyer:

No, no.

But that is a rule.

They set a rule in the adjudication–

Neal Kumar Katyal:

–And I do agree that — that at stake here is the potential to decide cases.

Now, when you mention the Taft-Hartley Act, I think that that legislative history is important for a different reason, which is up in — from 1935 to 1947, and this is set out in footnote 1 of our brief, that board decided over 460 cases as a two-member body.

There was a vacant third position.

And there were 2 years of debate, contentious debate, as you alluded to before, about Taft-Hartley, and yet they left that piece intact.

They permitted two-member bodies to decide these cases.

And so to the extent legislative history is relevant for members of the Court, we suggest it strongly suggests that what the board did here, faced with this vacancy crisis, mirrors what happened between 1935 and–

Samuel A. Alito, Jr.:

It begs the question–

Anthony M. Kennedy:

Suppose — suppose our first inquiry were agency law, and we concluded that under agency law when the principal ceases to exist the agent may no longer function.

Let’s assume we conclude that under agency law.

Could you then cite us a case or a rationale for saying that agency law should not apply to a government agency, to a problem of this type, and if so, what is your authority?

Neal Kumar Katyal:

–Sir, they are set out at page 28 of our brief.

They are United States v. Wyder, the two Donovan cases.

I think it is a long-established principle that principal/agent relationships, which we don’t think necessarily apply to this case, but even did you — even were you to disagree, as the premise of your question suggested, that government delegations survive the loss of that principal.

Ruth Bader Ginsburg:

Is your point that official acts done stay in effect even though the official is gone, until the official’s successor in office is appointed and that successor can remand the instruction?

Neal Kumar Katyal:

That’s — that’s precisely correct.

Anthony M. Kennedy:

But that is like the de facto officer doctrine.

It could be that, if the Petitioner prevails here, the de facto officer doctrine would leave in place everything that has been done.

Neal Kumar Katyal:

Justice Kennedy, those — that’s a different–

Anthony M. Kennedy:

But it seems to me that’s quite a different — different point.

Neal Kumar Katyal:

–Absolutely.

That’s a different point.

What I’m saying and what these cases say is that, for example, when an attorney general designates their power to — the wiretap authority to a subordinate, an assistant attorney general, and then that attorney general leaves office, that wiretap authority nonetheless continues in the subordinate until it is revoked by a successor.

Samuel A. Alito, Jr.:

–But hasn’t the situation that has prevailed now for some time changed the — the decision-making process of the board in at least two important ways?

First, there isn’t any opportunity for full board review of cases.

But more important, if you have only two members on the board and only two members on the panel, the process is very different from a panel in which there were three members, or in which two members can be supplemented with an additional member if they can’t agree.

What are the two to do?

They have to — they have to split the difference all the time.

And there have been decisions in which the members have — basically have suggested that that’s exactly what has happened.

Neal Kumar Katyal:

Justice Alito, I am not here suggesting that the two-member board is ideal or equivalent or optimal to a — an optimal thing.

Congress set out five.

But faced with a vacancy crisis and shutting down the board entirely, I think the board did the prudent thing here by continuing to operate, continuing for these 800 or so days to decide these cases.

John Paul Stevens:

Well, not only is the two-member board not — not ideal.

Do you think it is reasonably possible that Congress back in 1947 contemplated this particular problem and would have solved it the way you suggest?

Neal Kumar Katyal:

I do think that Congress had before it a well — it was well-known that over 460 times the board had decided cases with only two members, with the third being vacant.

And I think that’s what–

John Paul Stevens:

But that’s always when there is — there is in existence three people who could have served.

But the particular problem we’ve got now, going on for 2 or 3 years: All the decisions by two members.

Do you think Congress would have authorized this?

Neal Kumar Katyal:

–As opposed to shutting down the entire board, yes, Justice Stevens.

I think that’s the purpose of the–

Antonin Scalia:

It depends.

I mean, if shutting down is the only way to put pressure on Congress to — I mean, you may have a Congress that is just delighted to have only two Democratic members left on the board and all the cases decided by two Democratic members.

What possible incentive does that Congress have to increase the board to — to the level that it should be?

None.

If you want to solve the crisis that you are so worried about, the only way to solve it is to say: Boy, you know, there is — it’s Armageddon coming; we are going to not be able to act at all.

Antonin Scalia:

That would solve the crisis.

Neal Kumar Katyal:

–Well, I think the politics in Armageddon could cut different ways, depending — I mean, these are nomination battles that are focused on individual personalities.

And, Justice Scalia, the only empirical evidence we have — this is not the first time the board has done this, contrary to my friend’s suggestion earlier.

In 2005, the board was faced with the exact same situation.

The board was going to go down to two members.

They decided to do the exact same delegation and give — give all the powers to a group of three, and four days later, Congress fixed the problem with the president.

Antonin Scalia:

I’m much more impressed by — by your opponent’s assertion, which I don’t think you have contradicted, that for many years whenever there was a death in one of the three-member panels, that panel was reconstituted.

A new person was appointed, instead of just letting it continue to operate with only two.

Doesn’t that mean something?

Doesn’t that suggest that these panels were viewed by the board as requiring three people?

Neal Kumar Katyal:

No, it suggests that they thought three was optimal, where it was — where they could get three bodies.

But here, when they only have two — and again, faced with shutting down and not deciding the lion’s share of cases, which aren’t the controversial ones that give rise to the disagreement, Justice Alito, that you were positing — they’ve decided to go and do it — and do their business and try and resolve these.

And they have done, I think — the corpus reveals a really remarkable job at reaching agreement in a large number of cases on the basis of existing precedent.

Are these decisions–

Ruth Bader Ginsburg:

How — how has it — how has it worked?

And I understand that they are not dealing with controversial decisions.

How many decisions are there now?

Neal Kumar Katyal:

–I believe that there is 586 or so decisions that they have rendered, and of those they have set aside about approximately 70.

It was 65 as of a few days ago and it’s gone up, because they involve questions about overturning precedent or novel issues, and so they haven’t reached agreement in those.

John G. Roberts, Jr.:

What actually happens on — on the ground?

Somebody complains about an unfair labor practice to the board, and let’s say the petitioner prevails and the board can’t function.

What happens next?

Is there — I don’t know if there would be a review or not, but can you go to the court of appeals?

Neal Kumar Katyal:

If — if — if the board is disabled?

John G. Roberts, Jr.:

Yes, assume there is no board.

As you say, the — the problem that would happen if you don’t prevail?

Neal Kumar Katyal:

Well, if there is — if there is no board, then I take it the cases would get stuck after the ALJ.

There is nothing to take exception to, and so I’m not sure they could go directly to the court of appeals, because the statute, 160(f), I think, doesn’t permit review from an ALJ decision directly up.

It permits review only of the board’s decisions.

And if there is no board decision, then presumably these cases get stuck until we have a three-member quorum.

Stephen G. Breyer:

–And is it — is it correct numerically that, in fact, under identical language except the word 1935 to 1947, there were two-member panels and they decided about 400 cases, and then they took the same language, and now since 1947, roughly, what are the figures?

How many cases?

Has it only been this instance where it has been two members or have there been other instances?

Neal Kumar Katyal:

Well, the — the board only went down to two members as a whole starting in 1993.

It has happened four times: In 1993 for 2 months; in 2001, I believe for 1 month; in 2005 for only a few days.

Stephen G. Breyer:

Is that when the 400 cases that you are talking about were?

Neal Kumar Katyal:

The 460 cases were between 1935 and 1947.

Stephen G. Breyer:

And 1947.

And how many cases were decided by two members about, I’m not asking for — during the times you are talking about before the present two-member boards?

Neal Kumar Katyal:

In — in — in 1993 and in 2001, the board didn’t do this, because those were short periods of time.

In 2005, they did do precisely what they did here, but Congress resolved the situation, so there are only about 6 cases decided in that 4-day period.

And now from 2007 to now, approximately 586 cases or so have been decided.

Antonin Scalia:

But they never did it when they had a full board?

Neal Kumar Katyal:

They never delegated–

Antonin Scalia:

Whenever there was a death of one of the members of a three-judge panel or a three-member panel, they filled it and the panel did not operate with two?

Neal Kumar Katyal:

–Absolutely.

We are not standing–

Antonin Scalia:

Even though it could have, even though the quorum provision was just as it is here.

Neal Kumar Katyal:

–It could have, but it’s not–

Antonin Scalia:

Those panels did not operate with two?

Neal Kumar Katyal:

–Absolutely.

It’s not optimal, Justice Scalia, to have two.

But if — if the choice is shutting down or going with two, the board made the choice in this circumstance to go with more.

And, Justice Breyer, you had mentioned before the change in the word “except that”, and I do think that that is crucial language, because that is a subordinating conjunction.

And what it does is essentially modify that.

The two-member quorum language modifies what happens before, the “at all times”–

Stephen G. Breyer:

Well, you need the “except that” once you have language.

You need it because now you have a bigger board and it says there is a three-member quorum.

Neal Kumar Katyal:

–Precisely.

Stephen G. Breyer:

I thought they — they simply are taking the earlier phrase, the earlier statutory phrase, and they are changing those words because grammatically you now need it?

Neal Kumar Katyal:

Precisely correct.

You need it grammatically because otherwise if you didn’t have something like that, it would suggest that the panel quorum would be three as well.

But — but the language is quite specific on this and, contrary to what the D.C. Circuit found, “at all times” is modified by that subordinating conjunction in the phrase that follows.

Anthony M. Kennedy:

What — what authority does an ALJ purport and in fact exercise?

He’s not acting or she’s not acting for the board?

Neal Kumar Katyal:

The — the ALJ is appointed by the board and they essentially write tentative decisions that the board, as I understand it, can approve or disapprove.

Exceptions can be taken by litigants up to the board.

Anthony M. Kennedy:

Under the Petitioner’s theory, if there is no quorum would those appointments then be invalidated, too?

Neal Kumar Katyal:

Well, I — and this goes to Justice Scalia’s first question of the argument, I — I think that it’s possible.

I think that there is — the D.C. Circuit’s reasoning is — potentially could be read so broadly as to say that the entire board goes poof and everything under it, including the salaries.

I think if the Court were inclined to — to write a decision like that, we would try to look to, as you mentioned before, the de facto officer doctrine and the specific language of the delegations to the ALJ’s and the specific language to the general counsels, to try to see if there is a way to preserve all of the board’s action in this circumstance.

Of course, that isn’t before the Court at this point, but I understand that the dramatic consequences, potentially dramatic consequences of the D.C. Circuit’s ruling, may inform the judgment.

Antonin Scalia:

Do — do we have any notion when — when the board will reduce to one?

[Laughter]

When — when — when is one of the two’s term over?

Neal Kumar Katyal:

In the absence of any further confirmations or other appointments, one of the members, Member Schaumber, will leave on August 27th of this year.

Antonin Scalia:

Of this year.

At which point there will be some pressure on Congress, I guess, right?

Neal Kumar Katyal:

There will.

Ruth Bader Ginsburg:

There are — there are two nominees, are there not?

Neal Kumar Katyal:

There are three nominees pending right now.

Ruth Bader Ginsburg:

Three?

Neal Kumar Katyal:

Yes.

And they have been pending.

They were named in July of last year.

They were voted out of committee in October.

One of them had a hold and had to be renominated.

That renomination took place.

There was a failed quorum — a failed cloture vote in February.

And so all three nominations are pending.

Neal Kumar Katyal:

And I think that underscores the general contentious nature of the appointment process with respect to this set of issues.

John G. Roberts, Jr.:

And the recess appointment power doesn’t work why?

Neal Kumar Katyal:

The — the recess appointment power can work in — in a recess.

I think our office has opined the recess has to be longer than 3 days.

And — and so, it is potentially available to avert the future crisis that — that could — that could take place with respect to the board.

If there are no other questions–

John G. Roberts, Jr.:

Thank you, counsel.

Mr. Richie, you have 3 minutes remaining.

Sheldon E. Richie:

First, let me address the — the issue of what happens if we prevail, how will the problem be fixed.

There are two types of cases.

There are representation cases, and then there are cases dealing with unfair labor practices.

The unfair labor practices, Mr. Chief Justice, have a limitations period to them.

The — the issues — the issues with respect to representation have no limitations.

So in response to Justice Ginsburg’s comment — I believe it was Justice Ginsburg — there’s a — when a successor comes on board, these issues, if these — if we prevail and our decision is vacated, those are — can be reheard by the board when a successor is in place.

The D.C. Circuit–

Antonin Scalia:

Excuse me.

Just the — just the representation cases, not the unfair labor practice cases?

Sheldon E. Richie:

–That’s correct.

Antonin Scalia:

Wouldn’t the–

Sheldon E. Richie:

Well, except to the extent, Justice Scalia, that the statute of limitations has not run on those unfair labor–

Antonin Scalia:

–Yes, I understand.

Sheldon E. Richie:

–cases.

John G. Roberts, Jr.:

Wouldn’t — wouldn’t the statute of limitations at least be told during the period when they can’t do anything?

I suppose that’s a different case.

Sheldon E. Richie:

That’s an argument.

That’s a different case.

I don’t know the answer.

And I’m sure the litigants would argue that.

With respect to the issue of the — whether it’s three members that are required on both the board and the group, the D.C. Circuit didn’t deal with that, but they did deal with the exception issue.

And they said — I’m reading from the appendix page 89 of our petition: The board forum requirement therefore must be satisfied regardless of whether the board’s authority is delegated to a group of its members.

Sheldon E. Richie:

A modifying phrase such as — as this, talking about the “at all times three members” denotes that there is no instance in which the board forum requirement may be disregarded.

And then the court said:

“It therefore defies logic as well as the text of the statute to argue as the board does that a Congress which explicitly imposed a requirement for a three-member quorum at all times would in the same sentence allow the board to reduce its operative quorum to two without further congressional authorization. “

Ruth Bader Ginsburg:

Except that it said “except”.

[Laughter]

At all times “except”.

Sheldon E. Richie:

And, Justice Ginsburg, that was what the D.C. Circuit was referring to was the “except that” language, and saying in that same sentence, where there is a requirement at all times of a three-member quorum of the board, that it is — it defies logic that Congress would in that same sentence state except when there is three that falls to two.

And I think the other thing I would like to conclude is that the — my time’s up.

Thank you.

John G. Roberts, Jr.:

Thank you, counsel.

The case is submitted.