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Petitioner and Intervenors' Motion to Consolidate Oral Argument

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Petitioner and Intervenors' Motion to Consolidate Oral Argument USCA Case #12-1115 Document #1398993 Filed: 10/11/2012 Page 1 of 122 [ORAL ARGUMENT SCHEDULED IN NOS. 12-1161 AND 12-1214 FOR DECEMBER 5, 2012] UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT NOEL CANNING, A DIVISION OF THE NOEL CORPORATION, Petitioner/Cross- Case Nos. 12-1115, 12-1153 Respondent, v. NATIONAL LABOR RELATIONS BOARD, Respondent/Cross- Petitioner. CENTER FOR SOCIAL CHANGE, INC., Petitioner/Cross- Case Nos. 12-1161, 12-1214 Respondent, v. NATIONAL LABOR RELATIONS BOARD, Respondent/Cross- Petitioner. MOTION TO CONSOLIDATE ORAL ARGUMENT -1- USCA Case #12-1115 Document #1398993 Filed: 10/11/2012 Page 2 of 122 Pursuant to Fed. R. App. P. 3(b), Petitioner Noel Canning and Movant- Intervenors Chamber of Commerce of the United States of America (the “Chamber”) and The Coalition for a Democratic Workplace (“CDW”) (together, “Movants”) hereby move to consolidate oral argument in their Petition for Review Proceeding, wherein oral argument has not yet been set, with oral argument in the Petition for Review proceeding in Center for Social Change, Inc. v. N.L.R.B., Nos. 12-1161 and 12-1214, which this Court recently set for December 5, 2012. The Federal Rules “encourage consolidation of appeals whenever feasible,” Fed. R. App. P. 3(b), Adv. Comm. Notes (1967), and the Court should grant consolidation here. See also, e.g., Wright & A. Miller, Federal Practice and Procedure, § 2381 (2011) (explaining in the analogous context of Fed. R. Civ. P. 42 consolidation that the Court has “broad discretion to decide how cases on its docket are to be tried so that the business of the court may be dispatched with expedition and economy while providing justice to the parties”). Both proceedings turn on the same complex legal issue. Consolidation would thus serve the interests of all. 1. Consolidation of these Petition for Review proceedings for a single argument before the same panel makes sense and will conserve the resources of both this Court and the parties. Both proceedings focus on the same issue—the propriety of the President’s January 4, 2012 “recess” appointments of Sharon Block, Terence Flynn, and Richard Griffin to serve as Members of the National -2- USCA Case #12-1115 Document #1398993 Filed: 10/11/2012 Page 3 of 122 Labor Relations Board (the “Board”) under the Constitution’s Recess Appointments Clause. Both proceedings involve challenges to Orders that the Board issued following these recess appointments. In case numbers 12-1161 and 12-1214 (in which oral argument is currently set for December 5), the Board issued its Order on March 29, 2012; in case numbers 12-1115 and 12-1153 (in which briefing will be completed at the end of November), the Board issued its Order on February 8, 2012. The challenged Orders were valid only if the issuing Board had a lawful quorum of at least three members. See New Process Steel, L.P. v. Nat’l Labor Relations Bd., 130 S. Ct. 2635, 2644-45 (2010) (citing 29 U.S.C. § 153(b)). 2. Because both Orders required a quorum of the Board, each case will require this Court to determine whether the President’s January 4, 2012 appointments of Ms. Block, and Messrs. Flynn and Griffin were invalid under the Recess Appointments Clause of the Constitution, U.S. Const. art. II, § 2, cl. 3. Both proceedings thus necessarily involve the Court ruling on the same issue of first impression: whether the President’s January 4, 2012 “recess” appointments of three people to the Board were valid exercises of his recess appointments power. 3. This issue is the central issue in both proceedings. While both proceedings involve several additional arguments, the vast majority of the briefing in both cases is focused on the propriety of the President’s “recess” appointments. The parties’ briefs in Case Nos. 12-1161 and 12-1214 spend most of their space -3- USCA Case #12-1115 Document #1398993 Filed: 10/11/2012 Page 4 of 122 discussing the appointments, and the same is true for the Noel Canning proceeding at Case Nos. 12-1115 and 12-1153. Indeed, in the Noel Canning proceeding, Movants have filed a 20,000 word consolidated opening brief that dedicates the vast majority of its space to analyzing the recess appointments issue. See Ex. A Movants’ Opening Brief. The Board will also likely spend the bulk of its 20,000 word brief, due on October 26, 2012, on the recess appointments issue. (See, e.g., Board Reply on Motion for Increased Word Limit, Doc. 1398274, at p. 3 (explaining that “[t]he government [] has an important interest in ensuring that the constitutional and quorum issues raised by Petitioner and Movant-Intervenors are fully addressed”).) The briefing in the Noel Canning proceeding will thus, once completed, constitute the most in-depth analysis of the recess appointments issue filed to date. 4. Because both cases squarely present this same complex legal question, it makes sense to hear argument on both cases together, and to decide both cases together. Doing so will avoid the inefficiency of duplicative oral argument, will keep multiple panels of this Court from spending time and energy resolving the same dispute multiple times, and will ensure that this Court does not issue conflicting decisions. Moreover, by consolidating these two proceedings, the Court will benefit from the extensive briefing filed by the parties and their amici in -4- USCA Case #12-1115 Document #1398993 Filed: 10/11/2012 Page 5 of 122 the case not yet scheduled for oral argument (numbers 12-1115 and 12-1153), all of which focuses almost exclusively on the recess appointments issue. 5. Oral argument is currently scheduled in Case Nos. 12-1161 and 12- 1214 for December 5, 2012. The current schedule in the Noel Canning proceeding, Case Nos. 12-1115 and 12-1153, is as follows: Movants’ joint reply brief is due on November 27, 2012. The deferred appendix is due on December 4, 2012. The parties’ final briefs are due on December 11, 2012. No oral argument has been scheduled. Should the Court desire, Movants (who are responsible for drafting and filing the reply brief) would be willing to compress this schedule so as to preserve the current December 5, 2012 argument date. To that end, Movants would be able to comply with the following schedule: Movants’ joint reply brief would be due on November 20, 2012. The deferred appendix would be due on November 27, 2012. The parties’ final briefs would be due at the end of that same week, on November 30, 2012. 6. Consolidation of these proceedings for oral argument and decision will both “achieve the most efficient use of the Court’s resources” and “maintain consistency in its decisions.” D.C. Circuit Handbook of Practice and Internal -5- USCA Case #12-1115 Document #1398993 Filed: 10/11/2012 Page 6 of 122 Procedures (2005).1 Movants thus respectfully request that the Court grant this motion and consolidate Case Nos. 12-1115, 12-1153 for argument with Case Nos. 12-1161, 12-1214, which is currently set for oral argument on December 5, 2012. Alternatively, should the Court be disinclined to consolidate these cases, Movants request that it at least coordinate the oral arguments in the two cases so that they occur before the same panel on the same day. See, e.g., Davis v. DOJ, No. 09- 5189, 2009 WL 3570220 (D.C. Cir. Oct. 14, 2009) (directing the Clerk “to schedule this case for argument on the same date and before the same panel as” another case); Noramco of Del. v. DEA, No. 03-1060, 2003 WL 21384616 (D.C. Cir. June 5, 2003) (same). 7. Movants have consulted with all parties to both cases: Center for Social Change; the International Brotherhood of Teamsters Local 760 (the “Teamsters”), which is an Intervenor in the Noel Canning case; and the Board. The parties’ positions are as follows: Center for Social Change takes no position on this motion; The Board and the Teamsters take no position on this motion at this time, but will review the motion and respond as appropriate. 1 Available at http://www.cadc.uscourts.gov/internet/home.nsf/Content/VL%20-%20RPP%20- %20Handbook%202006%20Rev%202007/$FILE/HandbookDecember2011WITH TOCLINKS22.pdf). -6- USCA Case #12-1115 Document #1398993 Filed: 10/11/2012 Page 7 of 122 CONCLUSION For the reasons stated above, Movants respectfully request that the Court consolidate the proceeding at Case Numbers 12-1115 and 12-1153, wherein briefing will soon be completed, with the proceeding at Case Numbers 12-1161 and 12-1214, wherein oral argument is set for December 5, 2012. Dated: October 11, 2012 Respectfully submitted: /s/ Gary E. Lofland /s/ Noel Francisco Gary E. Lofland G. Roger King Lofland and Associates Noel J. Francisco 9 North 11th Avenue James M. Burnham Yakima, WA 98902 Jones Day (509) 452-2828 51 Louisiana Avenue, N.W. Washington, D.C. 20001-2113 Counsel for Petitioner Noel Canning, a (202) 879-3939 division of The Noel Corporation Counsel for Movant-Intervenors Chamber of Commerce of the United States of America, and The Coalition for a Democratic Workplace -7- USCA Case #12-1115 Document #1398993 Filed: 10/11/2012 Page 8 of 122 Of Counsel: Lily Fu Claffee Joshua A. Ulman Chief Legal Officer and General Brown & Ulman, PLLC Counsel 20th F. Street, NW, 7th Floor Chamber of Commerce of the United Washington, DC 20001 States of America (202) 642-1970 1615 H Street, NW Washington, DC 20062 Counsel for The Coalition for a (202) 463-5576 Democratic Workplace Robin S. Conrad Rachel L.
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