Home > administrative law, authority > What Happens When a Void Appointee Gets Appointed Again, But Properly the Second Time?

What Happens When a Void Appointee Gets Appointed Again, But Properly the Second Time?

At Volokh Conspiracy John Elwood says that even if the President properly reappoints the same people to the National Labor Relations Board whose appointments the courts have ruled invalid, they can’t just redecide all the cases that are in the courts.

Let’s suppose Mr. Elwood is correct, which seems right to me, and in a particular case the court says the old Board was improper so its decision is void.

1. Then the court would remand the same case to the new Board for reconsideration on the merits, right?

2. The Board would want to get cases back as quickly as possible, because till it reconsiders on the merits and issues a new decision, the old decision is void and nonprecedential, right?

3. A point that is unclear to me is whether the Board would have to hold hearings or trials or whatever it does again, going through the entire process as if it had never done it before. If the new Board had even one new member, that would be the only way to go, clearly. Suppose the new Board is identical to the illegitimate one though, or the only change for a particular decision is that a member left who opposed that decision. And suppose the loser in the old decision can’t make a good case that new evidence needs to be considered or that it has thought up new arguments it didn’t have available to it before. Would the hearings have to be repeated, reasonable time given to both sides to prepare, and so forth?

This suggests a possible strategy for a company which objects to a particular NLRB decision made during the void period but hasn’t yet appealed: wait until an entirely new person is appointed in a year or two and then appeal the old decision on the grounds that it was void. If the rules permit such late appeals, the appeal will win, and when the case is remanded it will have to go through full hearings again, besides being voided for the period up to the new hearings and repeat decisions (which might even go the company’s way the second time, with a new Board member).

UPDATE: My premise is wrong. Paul Thomas says

I can shed some light on part of this having to do with Board procedure. (Most of it would be inappropriate for me to comment on as I work for the NLRB.) There are five nominees; Mr. Magliocca is not correct to suppose that they are the same group as the recess appointees. There are two Republican nominees who have never served on the Board previously (by recess or otherwise).

If the Senate were to confirm all five of Obama’s nominees, each would be entitled to participate in the decision of any particular case. (The Board does typically refer cases to a panel of three, but that’s for convenience; it’s not like an appellate court, where the panel is fixed and basically unchanging.)

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