The NLRB issued this brief statement today:
The National Labor Relations Board has determined not to seek en banc rehearing in Noel Canning v. NLRB,
in which the U.S. Court of Appeals for the DC Circuit held that the
January 4, 2012 recess appointments of three members to the Board were
invalid. The Board, in consultation with the Department of Justice,
intends to file a petition for certiorari with the United States Supreme
Court for review of that decision. The petition for certiorari is due
on April 25, 2013.
The legitimacy of Richard Cordray's appointment to head the Consumer Financial Protection Bureau, and perhaps the validity of some of that agency's regulatory and enforcement efforts under Cordray, likely will depend on the Supreme Court's decision in Noel Canning.
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Although it may seem counter-intuitive, SCOTUS can decide that even bright line legal principles (even involving overruling old SCOTUS Decisions) are not retroactive.