NO. ______

In the

Supreme Court of the United States ________________

HEALTHBRIDGE MANAGEMENT, LLC; 107 OSBORNE STREET OPERATING CO. II, LLC, D/B/A DANBURY HCC;

710 LONG RIDGE RD. OPERATING CO. II, LLC, D/B/A LONG RIDGE OF STAMFORD; 240 CHURCH STREET OPERATING

CO. II, LLC, D/B/A NEWINGTON HEALTH CARE CENTER; 1 BURR ROAD OPERATING CO. II, LLC, D/B/A WESTPORT

HEALTH CARE CENTER; 245 ORANGE AVENUE OPERATING CO. II, LLC, D/B/A WEST RIVER HEALTH CARE CENTER;

341 JORDAN LANE OPERATING CO. II, LLC, D/B/A WETHERSFIELD HEALTH CARE CENTER,

Petitioners, v.

JONATHAN B. KREISBERG, Regional Director of Region 34 of the National Labor Relations Board, for and on behalf

of the NATIONAL LABOR RELATIONS BOARD, Respondent.

________________

On Petition for Writ of Certiorari to the United States Court of Appeals for the Second Circuit

________________

PETITION FOR WRIT OF CERTIORARI ________________

ROSEMARY ALITO GEORGE P. BARBATSULY K&L GATES LLP One Newark Center Tenth Floor Newark, NJ 07102

PAUL D. CLEMENT Counsel of Record ERIN E. MURPHY BANCROFT PLLC 1919 M Street NW, Suite 470 Washington, DC 20036 (202) 234-0090 pclement@bancroftpllc.com

Counsel for Petitioners July 25, 2014

QUESTIONS PRESENTED

This case arises out of a proceeding for injunctive relief under section 10(j) of the National Labor Relations Act, 29 U.S.C. § 160(j). Although the Board acted to authorize this proceeding, it is clear after NLRB v. Noel Canning that it lacked a quorum to do so. Nonetheless, the courts below, before Noel Canning, purported to bypass the Recess Appointments Clause issue by relying on a companion authorization issued by the Board’s general counsel, even though the general counsel was duty-bound to follow the Board’s decisions concerning the authorization and scope of the proceeding. The District Court then granted the Board’s request in toto, applying an exceedingly deferential standard that it readily conceded was far less demanding than the traditional four-factor test articulated in Winter v. Natural Resources Defense Council, Inc., 555 U.S. 7 (2008), and applied by numerous other circuits in section 10(j) proceedings. In affirming that decision in its entirety, the Court of Appeals acknowledged that its holdings with respect to both the validity of the general counsel’s authorization and the propriety of the truncated standard the District Court applied in granting the injunction openly conflict with decisions of other circuits.

The questions presented are:

1. Does a companion authorization issued by the Board’s general counsel in conjunction with an order from the Board itself, purporting to possess a quorum and take the same action on its own behalf, suffice to authorize a section 10(j) proceeding commenced while the Board itself lacked a quorum to authorize it?

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2. Does the familiar four-factor test for preliminary injunctive relief articulated in Winter v. Natural Resources Defense Council, Inc., 555 U.S. 7 (2008), apply to preliminary injunctive relief sought in a petition under section 10(j) of the National Labor Relations Act, as a majority of circuits have held, or does an entirely different and profoundly deferential standard apply, as the courts below held?

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PARTIES TO THE PROCEEDING

Petitioners, who were respondents in the District Court and appellants in the Court of Appeals, are HealthBridge Management, LLC; 107 Osborne Street Operating Co. II, LLC, D/B/A Danbury HCC; 710 Long Ridge Rd. Operating Co. II, LLC, D/B/A Long Ridge of Stamford; 240 Church Street Operating Co. II, LLC, D/B/A Newington Health Care Center; 1 Burr Road Operating Co. II, LLC, D/B/A Westport Health Care Center; 245 Orange Avenue Operating Co. II, LLC, D/B/A West River Health Care Center; 341 Jordan Lane Operating Co. II, LLC, D/B/A Wethersfield Health Care Center.

Respondent, who was petitioner in the District Court and appellee in the Court of Appeals, is Jonathan B. Kreisberg, Regional Director of Region 34 of the National Labor Relations Board, for and on behalf of the National Labor Relations Board.

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CORPORATE DISCLOSURE STATEMENT

Petitioner HealthBridge Management, LLC, is 100% owned by Care One, LLC, which in turn is owned by private investors. Petitioners 107 Osborne Street Operating Co. II, LLC d/b/a Danbury HCC; 710 Long Ridge Road Operating Co. II, LLC d/b/a Long Ridge of Stamford; 240 Church Street Operating Co. II, LLC d/b/a Newington Health Care Center; 1 Burr Road Operating Co. II, LLC d/b/a Westport Health Care Center; 245 Orange Avenue Operating Co. II, LLC d/b/a West River Health Care Center; and 341 Jordan Lane Operating Co. II, LLC d/b/a Wethersfield Health Care Center are 100% owned by Care Realty, LLC. No publicly-held company has a 10% or greater ownership interest in any of the entities identified above.

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TABLE OF CONTENTS

QUESTIONS PRESENTED ....................................... i 

PARTIES TO THE PROCEEDING .......................... iii 

CORPORATE DISCLOSURE STATEMENT ........... iv 

TABLE OF AUTHORITIES .................................... viii 

PETITION FOR WRIT OF CERTIORARI ................ 1 

OPINIONS BELOW ................................................... 3 

JURISDICTION ......................................................... 3 

CONSTITUTIONAL AND STATUTORY PROVISIONS INVOLVED ...................................... 3 

STATEMENT OF THE CASE ................................... 3 

A.  Factual and Legal Background .................... 3 

B.  The Underlying Proceedings ........................ 9 

REASONS FOR GRANTING THE PETITION ....... 14 

I.  This Court’s Precedents, Decisions Of Other Circuits, And Common Sense Compel The Conclusion That This Proceeding Was Not And Could Not Be Properly Authorized ........... 16 

A.  The Board’s Own Actions in Purporting to Authorize this Proceeding Deprive the General Counsel’s Parallel Actions of Any Independent Force .............................. 17 

B.  Any Delegation of the Board’s Section 10(j) Power Did Not Survive the Board’s Loss of a Quorum ........................................ 21 

II.  The Lower Court’s Truncated And Highly Deferential Injunction Standard Conflicts With This Court’s Decisions And Reinforces An Acknowledged Circuit Split ......................... 25 

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CONCLUSION ......................................................... 32

APPENDIX

Appendix A

Opinion of the United States Court of Appeals for the Second Circuit, Kreisberg v. HealthBridge Management, LLC, No. 12-4890 (Oct. 15, 2013) ................................................ App-1

Appendix B

Order of the United States Court of Appeals for the Second Circuit Denying Rehearing, Kreisberg v. HealthBridge Management, LLC, No. 12-4890 (Feb. 26, 2014) ....................... App-24

Appendix C

Opinion of the United States District Court for the District of Connecticut, Kreisberg v. HealthBridge Management, LLC, No. 12-1299 (Dec. 14, 2012) .............................................. App-26

Appendix D

Transcript of Oral Opinion of the United States District Court for the District of Connecticut, Kreisberg v. HealthBridge Management, LLC, No. 12-1299 (Dec. 11, 2012) ....................... App-54

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Appendix E

Excerpts of Hearing Transcript, United States District Court for the District of Connecticut, Kreisberg v. HealthBridge Management, LLC, No. 12-1299 (Oct. 22, 2012) ...................... App-74

Appendix F

Memorandum to L. Solomon, Acting Gen. Counsel, HealthBridge Management, LLC, et al., Case 34-CA-083335 (NLRB Aug. 16, 2012) .... App-105

Memorandum to J. Kreisberg, Regional Director, Region 34, HealthBridge Management, LLC, et al., Case 34-CA-083335 (NLRB Aug. 16, 2012) ............................................ App-106

Appendix G

U.S. Const. art. II, § 2, cl. 2 .............. App-107

U.S. Const. art. II, § 2, cl. 3 .............. App-107

29 U.S.C. § 153 .................................. App-108

29 U.S.C. § 160(j) .............................. App-111

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TABLE OF AUTHORITIES

Cases 

Ahearn v. Jackson Hosp. Corp., 351 F.3d 226 (6th Cir. 2003) .................................. 27

Arlook ex rel. NLRB v. S. Lichtenberg & Co., 952 F.2d 367 (11th Cir. 1992) ................................ 27

Boire v. Pilot Freight Carriers, Inc., 515 F.2d 1185 (5th Cir. 1975) ................................ 27

Chester ex rel. NLRB v.Grane Healthcare Co., 666 F.3d 87 (3d Cir. 2011) ..................................... 27

Danielson v. Joint Bd. of Coat, Suit & Allied Garment Workers’ Union, 494 F.2d 1230 (2d Cir. 1974) ................................. 31

eBay, Inc. v. MercExchange, L.L.C., 547 U.S. 388 (2006) ................................................ 29

FEC v. NRA Political Victory Fund, 513 U.S. 88 (1994) .................................................. 21

Frankl v. HTH Corp., 650 F.3d 1334 (9th Cir. 2011) .......................... 22, 23

Hirsch v. Dorsey Trailers, Inc., 147 F.3d 243 (3d Cir. 1998) ................................... 27

Kinney v. Pioneer Press, 881 F.2d 485 (7th Cir. 1989) .................................. 26

Laurel Baye v. NLRB, 564 F.3d 469 (D.C. Cir. 2009) .................... 13, 21, 22

McDermott v. Ampersand Publ’g, LLC, 593 F.3d 950 (9th Cir. 2010) .................................. 27

Miller v. Cal. Pac. Med. Ctr., 19 F.3d 449 (9th Cir. 1994) .............................. 26, 30

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Muffley ex rel. NLRB v. Spartan Mining Co., 570 F.3d 534 (4th Cir. 2009) .................................. 27

New Process Steel, L.P. v. NLRB, 560 U.S. 674 (2010) ...................................... 6, 23, 24

NLRB v. Noel Canning, 134 S. Ct. 2550 (2014) .................................... 1, 8, 14

NLRB v. United Food & Commercial Workers Union, Local 23, AFL-CIO, 484 U.S. 112 (1987) ................................................ 29

Osthus v. Whitesell Corp., 639 F.3d 841 (8th Cir. 2011) ............................ 22, 23

Overstreet v. El Paso Disposal, LP, 625 F.3d 844 (5th Cir. 2010) ...................... 22, 23, 27

Sharp ex rel. NLRB v. Webco Indus., Inc., 225 F.3d 1130 (10th Cir. 2000) .............................. 27

Sharp v. Parents in Cmty. Action, Inc., 172 F.3d 1034 (8th Cir. 1999) ................................ 26

Weinberger v. Romero-Barcelo, 456 U.S. 305 (1982) .......................................... 26, 30

Winter v. Natural Res. Def. Council, 555 U.S. 7 (2008) ...................................... 2, 6, 25, 30

Constitutional Provisions 

U.S. Const. art. II, § 2, cl. 2 .................................... 3, 8

U.S. Const. art. II, § 2, cl. 3 .................................... 3, 8

Statutes & Regulations 

29 U.S.C. § 151 ........................................................... 3

29 U.S.C. § 153(a) ................................................... 6, 8

29 U.S.C. § 153(d) ..................................................... 29

29 U.S.C. § 160(j) ...................................... 6, 11, 26, 31

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NLRB, Order Contingently Delegating Authority to the General Counsel 76 Fed. Reg. 69,768 (Nov. 9, 2011) .................... 7, 18

NLRB, Order Delegating Authority to the General Counsel 66 Fed. Reg. 65,998 (Dec. 21, 2001) .................. 7, 18

NLRB, Order Delegating Authority to the General Counsel, 67 Fed. Reg. 70,628 (Nov. 25, 2002) .................. 7, 18

Other Authorities 

157 Cong. Rec. S8,783 (daily ed. Dec. 17, 2011) ........................................... 8

2 William Meade Fletcher, Fletcher Cyclopedia of the Law of Corporations (2008) ...................................................................... 21

Lawfulness of Recess Appointments During a Recess of the Senate Notwithstanding Periodic Pro Forma Sessions, 36 Op. O.L.C. 1 (2012), http://1.usa.gov/WEiFEn ......................................... 8

Trevor W. Morrison, Libya, “Hostilities,” The Office of Legal Counsel, and the Process of Executive Branch Legal Interpretation, 124 Harv. L. Rev. F. 62 (May, 2011) ..................... 18

Restatement (Third) of Agency (2006) ..................... 21

PETITION FOR WRIT OF CERTIORARI

This case involves an injunction that is truly extraordinary in every sense. Mere hours before some 700 caregivers at nursing care facilities went on strike, a series of unconscionable acts of medical sabotage—including removal of identification cards and critical care instructions from the rooms of elderly, memory-impaired patients—was committed at multiple facilities. Rather than investigate this shameless attempt to use coordinated criminal conduct to gain the upper hand in labor negotiations (a tactic the same union had used at other facilities in the past), the National Labor Relations Board responded by initiating this proceeding against the facilities. The Board sought an injunction under section 10(j) of the National Labor Relations Act to compel the facilities to reinstate all the striking workers, without regard to which ones had so callously endangered the health and safety of their patients, at terms so exorbitant that they ultimately forced the facilities into bankruptcy.

Both the Board that launched the proceedings and the resulting proceedings and injunction were pervaded by legal error. First, after NLRB v. Noel Canning, 134 S. Ct. 2550 (2014), it is beyond dispute that the Board that acted to authorize this proceeding lacked a constitutionally appointed quorum to do so. Accordingly, the proceeding was ultra vires from start to finish. The Board and the courts below thought they could avoid that result by treating a companion authorization issued by the Board’s general counsel as independently sufficient, but there was plainly nothing independent about actions taken in the

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shadow of a Board that insisted it possessed a quorum to authorize this action itself. Indeed, it is unthinkable that the general counsel would have brought the action of his own accord had the Board refused to authorize it. In any event, as the D.C. Circuit correctly has held, any power the Board delegated to its general counsel ceased to exist once the Board lost a quorum to exercise that power itself.

Even assuming the initiation of this proceeding was lawful, its outcome surely was not. Rather than exercise any independent judgment as to the propriety of injunctive relief, the District Court deemed itself bound to defer utterly and completely to the Board’s views on the matter. Indeed, the court would not even allow Petitioners to take discovery, cross-examine the Board’s witnesses, or provide testimony rebutting its allegations—even though the Board was seeking preliminary relief before actually adjudicating the underlying labor dispute. In affirming this unparalleled degree of deference to the views of the (quorumless) Board, the Court of Appeals openly acknowledged that it was exacerbating an entrenched circuit split on the standard for granting section 10(j) relief in the wake of this Court’s decision in Winter v. Natural Resources Defense Council, 555 U.S. 7 (2008).

The ultimate result is an injunction that the Board had no power to seek, issued by a court that had no basis to grant it, and that acted in open conflict with decisions of this Court and other courts by doing so. Any one of those is reason enough for this Court’s review; taken together, they confirm that the decision below and the extraordinary injunction it affirmed cannot stand.

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OPINIONS BELOW

The opinion of the Court of Appeals is reported at 732 F.3d 131 and reproduced at App.1–24. The unreported memorandum opinion of the District Court denying Petitioners’ motion to dismiss and granting Respondent’s request for an injunction is reproduced at App.26–53. The District Court’s unreported oral statement of reasons for its decision is reproduced at App.54–73.

JURISDICTION

The Court of Appeals issued its opinion on October 15, 2013. A timely petition for rehearing or rehearing en banc was denied on February 26, 2014. Justice Ginsburg extended the time in which to file a petition for a writ of certiorari to and including July 25, 2014. This Court has jurisdiction under 28 U.S.C. § 1254(1).

CONSTITUTIONAL AND STATUTORY PROVISIONS INVOLVED

The Appointments Clause of the United States Constitution, U.S. Const. art. II, § 2, cl. 2, is reproduced at App.107. The Recess Appointments Clause of the United States Constitution, U.S. Const. art. II, § 2, cl. 3, is reproduced at App.107. The relevant provisions of the National Labor Relations Act, 29 U.S.C. § 151 et seq., are reproduced at App.111.

STATEMENT OF THE CASE

A. Factual and Legal Background

1. Petitioners in this case are sub-acute and long-term nursing care facilities (the “Centers”) for the elderly and the company that manages them. The New England Health Care Employees Union, District

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1199 (the “Union”), represents units of employees at the Centers. After negotiating with the Union for 38 bargaining sessions over the course of more than 16 months, Petitioners came to the conclusion that the parties were at a good faith and lawful impasse and, on June 17, 2012, implemented last, best, and final bargaining proposals. In short order, the Union responded by commencing strikes at each of the Centers. With the Union’s encouragement, approximately 700 members of the bargaining unit walked off their jobs on July 3, 2012.

But the workers did not simply go on strike. Instead, on their way out the door, some as-yet unidentified workers committed a series of unconscionable acts of medical sabotage that put their frail, elderly, and memory-impaired patients at immediate and significant risk. Among other things, the perpetrators:

mixed up names on patients’ doors and photographs on patients’ medical records for patients in the Alzheimer’s ward of one of the Centers;

removed dietary stickers affixed to door name tags indicating how patients could safely be fed;

removed identification wristbands and patient identifiers from room doors and wheelchairs;

removed stethoscopes and blood pressure cuffs from various units;

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removed patient medical records such as patient-care flow books and activities-of-daily-living flow sheets;

removed handles from patient lifts in an effort to make them inoperable; and

soiled patients’ clean linens and damaged and tampered with washing machines.

As the responsible parties surely anticipated, these acts delayed and disrupted medical treatment, thus placing the Centers’ vulnerable patients in grave danger. Only prompt action by others at the Centers and good fortune prevented serious harm to patients.

Although the identities of the perpetrators remain unknown, these acts were coordinated across three Centers mere hours before the strikes commenced, and the Centers’ employees were the only ones with access to patients when they occurred. The same Union also engaged in similar acts of medical sabotage at other Connecticut health care facilities on the eve of a 2001 strike.

2. Rather than respond to these shocking events by attempting to ascertain the identities of the perpetrators or the extent of the Union’s involvement in the apparent use of criminal conduct to gain an advantage in labor negotiations, the National Labor Relations Board (the “Board” or “NLRB”) decided to file a lawsuit against Petitioners, seeking to compel them to return all the striking workers—including the unidentified instigators and perpetrators of the crimes that endangered to the health and safety of the Centers’ patients—to their patient care positions under the terms of their expired collective bargaining agreements.

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The Board sought that relief pursuant to section 10(j) of the National Labor Relations Act (“NLRA”), 29 U.S.C. § 160(j), which provides, in relevant part:

The Board shall have power, upon issuance of a complaint … charging that any person has engaged in or is engaging in an unfair labor practice, to petition any United States district court, within any district wherein the unfair labor practice in question is alleged to have occurred or wherein such person resides or transacts business, for appropriate temporary relief or restraining order. Upon the filing of any such petition the court shall … have jurisdiction to grant to the Board such temporary relief or restraining order as it deems just and proper.

Id. By its plain terms, section 10(j) thus divides the powers it provides between two actors: the Board shall have the power to request injunctive relief, and the District Court shall have the power to determine whether such relief is “just and proper.” The Board’s general counsel is not mentioned.

Consistent with the notion that “[a] preliminary injunction is an extraordinary remedy” that should neither be requested nor granted lightly, Winter, 555 U.S. at 24, the Board long has reserved for itself the power to authorize section 10(j) proceedings. Indeed, the Board has sought to delegate that power only when it fears it will lose the requisite three-member quorum to act. See 29 U.S.C. § 153(a); New Process Steel, L.P. v. NLRB, 560 U.S. 674, 688 (2010). Even then, the Board has not actually delegated its section 10(j) power, but rather has issued orders instructing

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its general counsel that it may exercise that power if—and only if—the Board lacks a quorum to do so itself. See, e.g., NLRB, Order Delegating Authority to the General Counsel (“2002 Order”), 67 Fed. Reg. 70,628, 70,628 (Nov. 25, 2002) (“This delegation shall be effective during any time when the Board has fewer than three Members and …. shall cease to be effective whenever the Board has at least three Members.”); NLRB, Order Delegating Authority to the General Counsel (“2001 Order”), 66 Fed. Reg. 65,998, 65,998–99 (Dec. 21, 2001) (same).

The Board issued one such order on November 9, 2011. See NLRB, Order Contingently Delegating Authority to the General Counsel (“2011 Order”), 76 Fed. Reg. 69,768 (Nov. 9, 2011). At the time, the Board had three members, but the appointment of one of those members was set to “expire at the sine die adjournment of the current session of Congress.” Id. at 69,768 n.1. “[A]nticipat[ing] that in the near future it may, for a temporary period, have fewer than three Members,” the Board issued an order “contingently delegating … to the General Counsel full and final authority and responsibility on behalf of the Board to initiate and prosecute injunction proceedings under section 10(j).” Id. at 69,768–69. Like the Board’s 2001 and 2002 orders, this order explicitly provided that “[t]hese delegations shall become effective during any time at which the Board has fewer than three Members and shall cease to be effective whenever the Board has at least three Members.” Id. at 69,768.

3. The section 10(j) petition at issue here was authorized on August 16, 2012 (barely a month after the criminal attacks on the Centers occurred). At the

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time, the federal government viewed the Board as possessing a constitutionally appointed quorum to act, although that conclusion was in considerable doubt. Although two of its members had been “appointed by the President by and with the advice and consent of the Senate,” 29 U.S.C. § 153(a); see also U.S. Const. art. II, § 2, cl. 2, the other two were serving pursuant to appointments made by the President pursuant his “power to fill up all vacancies that may happen during the recess of the Senate,” U.S. Const. art. II, § 2, cl. 3. Unlike past recess appointments, however, these “recess” appointments were made while the Senate considered itself in session and was meeting in pro forma sessions every three days. See 157 Cong. Rec. S8,783–84 (daily ed. Dec. 17, 2011). Although considerable constitutional concerns had been raised about the validity of these appointments (concerns that proved well founded, see NLRB v. Noel Canning, 134 S. Ct. 2550 (2014)), the Board and the entire executive branch viewed these appointments as constitutional.

Accordingly, the Board was definitively of the view that it possessed a quorum to take all manner of actions, including authorizing the section 10(j) proceeding that produced the injunction and decisions at issue here. Indeed, the Board could hardly proceed in any other manner, as the Office of Legal Counsel, the views of which are binding on the executive branch, had considered the question and issued an opinion concluding that the President’s appointments were constitutional. See Lawfulness of Recess Appointments During a Recess of the Senate Notwithstanding Periodic Pro Forma Sessions, 36 Op. O.L.C. 1 (2012), http://1.usa.gov/WEiFEn. Likewise,

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the Department of Justice was taking that position in litigation throughout the country.

Accordingly, on August 16, 2012, the Board issued a memorandum to its acting general counsel informing him that a majority of the Board authorized him “to institute 10(j) proceedings in this case.” App.105. The memorandum further noted that one member (one of the only two appointed with the advice and consent of the Senate) “would authorize section 10(j) proceedings, but would not authorize you to seek a broad order—only a narrow order.” App.105. On the same day, the acting general counsel issued a memorandum stating: “Pursuant to the Board’s delegation of court authority to me, 76 FR 69768-02, 2011 WL 5357994 (F.R.) (November 9, 2011), I authorize the Regional Office to initiate Section 10(j) proceedings.” App.106.

B. The Underlying Proceedings

1. On September 7, 2012, section 10(j) proceedings were initiated against Petitioners through a petition filed by one of the Board’s regional directors “for and on behalf of the” Board. Dist. Ct. Doc. 1. The relief requested in the petition was anything but narrow—the Board sought to compel the return of some 700 striking workers, at employment terms that ultimately drove each of the Centers into bankruptcy. See infra n.*. The Board also moved to try the matter on the basis of affidavits and exhibits alone, and thus deny Petitioners any ability to seek discovery, provide live testimony, or test the credibility of the Board’s evidence and witnesses. Dist. Ct. Doc. 2.

Petitioners moved to dismiss the petition for lack of subject-matter jurisdiction, arguing that the Board

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lacked a constitutionally appointed quorum to authorize it, and that the Board’s general counsel and regional director lacked authority to do so on its behalf. Dist. Ct. Doc. 36. In the alternative, they asked to at least be given the opportunity to seek discovery and have an evidentiary hearing to determine, among other things, which strikers had committed the acts of sabotage that endangered the Centers’ patients and whether the Union instigated or endorsed those actions. Dist. Ct. Doc. 10.

At the Board’s urging, the District Court denied Petitioners’ discovery requests, and also denied their request to present live testimony and cross-examine the Board’s witnesses. Although it acknowledged that Petitioners were entitled to their “day in court, so to speak,” it concluded that “your day in court does not give you an opportunity to treat the NLRB like any other litigant and treat this as a start-from-scratch evidentiary hearing with me as the finder of fact.” App.84. Instead, the court viewed its role only as “to give the parties an opportunity to be heard, review the record as it is existing, and defer appropriately to the petitioner applying the correct legal standard which contemplates deference.” App.76. Accordingly, the sole evidence on which the court ultimately based its decision consisted of affidavits, correspondence, contract proposals, and the parties’ bargaining notes.

2. In a December 11, 2012 telephone conference, the District Court rejected Petitioners’ jurisdictional argument, concluding that the companion authorization issued by the Board’s acting general counsel was sufficient to authorize this action even if the Board lacked a constitutionally appointed quorum

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when it issued its own authorization and when the action was initiated. App.54–73. The court then granted the Board all the relief it requested. In doing so, the court repeatedly reiterated its view that a District Court may not exercise independent judgment as to whether section 10(j) relief is “just and proper,” 29 U.S.C. § 160(j), but rather is bound to give considerable deference to the Board’s view that a preliminary injunction should obtain. As the court put it, so long as “the board’s legal theory is valid and its view of the facts finds adequate support in the record, then the district court is to provide relief.” App.61; see also App.61 (“It is not the place of the district court to adjudicate the case as if it were brought by a private party seeking injunctive relief, nor is the court to substitute itself for the board and purport to play a larger role in this area than the one assigned to it by Congress.”).

After refusing to stay its order pending appeal, the District Court issued a written opinion elaborating on its reasons for granting the injunction. The court first rejected Petitioners’ argument that a section 10(j) determination must be guided by the four-factor test articulated in Winter, concluding that this “more demanding” test “would be inconsistent with the remedial purposes of section 10(j).” App.39. Instead, the court adhered to a two-part test articulated by the Second Circuit decades earlier that asks only “(1) whether there is reasonable cause to believe that unfair labor practices have been committed and, if so, (2) whether the requested relief is ‘just and proper.’” App.39.

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Even as to these two factors, however, the court emphasized that these are not matters for the Article III court’s independent judgment. Instead, courts “owe considerable deference to the Board’s Regional Director when determining whether reasonable cause exists.” App.40. “Even when disputed issues of fact exist,” the court emphasized, “‘the Regional Director’s version of facts should be sustained if within the range of rationality,’” and “‘inferences from the facts should be drawn in favor of the charging party.’” App.40. Likewise, the court insisted that the regional director’s contention that injunctive relief is appropriate demands considerable deference as well. App.42. Unsurprisingly, the court had little trouble acquiescing to the Board’s request under this exceedingly deferential standard, which rendered the irreparable injury that the Centers and their patients stood to suffer if the striking workers were reinstated—and at bankrupting terms, no less—largely irrelevant.*

3. The Court of Appeals affirmed. Like the District Court, the Court of Appeals held that it need not decide whether the Board had a constitutionally

* Shortly after the District Court’s injunction took effect, the

Centers were forced to file for bankruptcy. See 710 Long Ridge Road Operating Co., II, LLC, No. 13-13653-DHS (Bankr. D.N.J.). The bankruptcy court agreed with the Centers that the employment terms mandated by the injunction were bankrupting and promptly granted the Centers interim relief relieving them of that obligation. Since then, the bankruptcy court has confirmed a final plan that provides the Centers with the same relief on a permanent basis. The Board has fought this relief every step of the way and is in the process of pursuing various appeals.

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appointed quorum when it authorized this proceeding because the companion authorization issued by its general counsel was sufficient to authorize the proceeding and allow it to be initiated on behalf of a quorumless Board. Although the court readily conceded that the Board’s contingent delegation orders “clearly [were] designed to allow for the continued exercise of § 10(j) authority if and when the Board lost a quorum,” rather than to actually enable the general counsel to exercise the section 10(j) power while the Board purported to sit and act, it deemed the conditional nature of these orders a virtue, not a vice, that allowed the Court to avoid the constitutional question ultimately answered in Noel Canning. App.16. In doing so, the court acknowledged that it was rejecting the views of the D.C. Circuit, which has concluded that the Board cannot continue to exercise its own powers through delegations to third parties once it loses the quorum required to exercise those powers itself. See Laurel Baye v. NLRB, 564 F.3d 469 (D.C. Cir. 2009).

The Court of Appeals also agreed with the District Court that the standard for granting section 10(j) relief is governed by a highly deferential two-prong test rather than the traditional four-factor test articulated in Winter. App.18. In the court’s view, section 10(j) demands a “different standard” because it “requires (1) deference to the NLRB, which resolves the underlying unfair labor practice complaint on the merits and makes an initial determination, prior to the filing of a petition, to file such a complaint, … as well as (2) speedy resolution to preserve the status quo in a labor dispute.” App.19. The court thus concluded that “Winter did not alter the law in this Circuit with

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respect to the standard that applies for § 10(j) injunctions.” App.19. In doing so, the court acknowledged that it was exacerbating a “circuit split” on this question. App.19. Applying its own considerable deference to the District Court’s considerable deference to the views of the Board, the court then affirmed the injunction in its entirety.

4. Petitioners filed a petition for rehearing or rehearing en banc, which the Second Circuit denied. App.24–25. Since then, this Court decided Noel Canning, in which it held that two of the four members of the Board that purported to authorize this section 10(j) proceeding were indeed unconstitutionally appointed. See Noel Canning, 134 S. Ct. at 2573–74.

REASONS FOR GRANTING THE PETITION

The extraordinary injunction at issue in this case is the product of a proceeding riddled with errors, any one of which is sufficient to warrant this Court’s review, and all of which in combination necessitate it. First, the proceeding was authorized by a Board that lacked a constitutionally appointed quorum to act. Contrary to the views of the Board and the courts below, that is no minor detail. The Board was of the view, consistent with the definitive view of the entire executive branch, that it had a quorum and so acted to authorize this proceeding itself. That action of an unconstitutionally constituted and quorumless Board is clearly invalid. And it simply blinks reality to suggest that the Board’s general counsel—an officer accountable to the Board and bound by the Board’s (and OLC’s) view that it possessed a quorum— “independently” authorized this action. Indeed, had the Board refused to authorize this proceeding, it is

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unthinkable that its general counsel would have proceeded to initiate it anyway. Accordingly, there was no authorization independent from the one issued by the quorumless Board to initiate this proceeding in the first place.

In any event, the Board’s attempt to contingently delegate its section 10(j) power could not survive its loss of a quorum to exercise that power itself. The Second Circuit’s contrary conclusion is in clear conflict with the D.C. Circuit’s decision in Laurel Baye, as well as with bedrock agency principles articulated in that decision and decisions of this Court. Indeed, if anything, the contingent nature of the delegations at issue here makes them more troubling than the delegation this Court rejected in New Process Steel, as they are an open and acknowledged attempt to perpetuate the exercise of powers the Board itself lacks a quorum to exercise. That much is clear from the fact that, by their very terms, those “delegations” took effect if—and only if—the Board lost a quorum to exercise the section 10(j) power itself. It is one thing to allow the general counsel to continue to exercise power that it began exercising on the Board’s behalf before the Board lost a quorum, but it is another thing entirely to allow the general counsel to begin exercising the Board’s power solely because the Board lost a quorum to do so itself.

Even if this proceeding were lawfully authorized, however, the broad injunction it produced could not stand, as it was the product of an exceedingly deferential standard that openly conflicts with the traditional four-factor test for injunctive relief that this Court articulated in Winter, as well as with

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decisions from multiple Courts of Appeals concluding that the traditional standard is fully applicable to section 10(j) proceedings. That conclusion is manifestly correct, as section 10(j)’s instruction to courts to grant injunctive relief as they deem “just and proper” is manifestly insufficient to provide the requisite clear guidance that Congress intended anything other than the traditional four-factor standard to govern.

In short, the proceeding below was improperly authorized and improperly conducted. It is little surprise, then, that the relief it produced was wholly improper as well. Accordingly, this Court should grant certiorari to resolve one or both of the circuit splits that produced this untenable result. At a bare minimum, the Court should vacate and remand for reconsideration of one or both questions presented in light of Noel Canning’s conclusion that the Board on whose behalf this action was initiated, and to which the District Court granted unparalleled deference, lacked a constitutionally appointed quorum to act.

I. This Court’s Precedents, Decisions Of Other Circuits, And Common Sense Compel The Conclusion That This Proceeding Was Not And Could Not Be Properly Authorized.

After this Court’s decision in Noel Canning, there is no question that this section 10(j) proceeding was authorized, initiated, and litigated on behalf of a Board that lacked a constitutionally appointed quorum to act. According to the decision below, that indisputable fact is entirely irrelevant because the Board’s general counsel purported to authorize this proceeding of his own accord. That conclusion cannot

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be reconciled with what actually happened in this case, as the general counsel “authorized” this action only in the shadow of Board that already had purported to do so itself. Nor can it be reconciled with settled agency law principles that decisions of this Court and the D.C. Circuit confirm must govern. The Court of Appeals’ contrary conclusion not only exacerbates an existing circuit split, but also deprives this Court’s decision in Noel Canning of all practical force in a critically important context.

A. The Board’s Own Actions in Purporting to Authorize this Proceeding Deprive the General Counsel’s Parallel Actions of Any Independent Force.

Section 10(j) is an extraordinary provision, as it empowers the Board to seek coercive injunctive relief from an Article III court in connection with an unfair labor practices complaint before the Board has adjudicated the merits of that complaint. Although the general counsel has the authority to initiate the complaint, Congress granted the Board the exclusive right to take the extraordinary step of enlisting the assistance of the Article III courts before a final determination of the charge is made. Congress’ decision to grant the Board itself the power to authorize section 10(j) proceedings thus reflects its considered judgment that the momentous step of seeking preliminary injunctive relief ought to be taken only when the Board has made an independent determination as to the validity of the complaint that the general counsel has filed.

Consistent with that understanding, the Board long has been loath to cede its power to authorize

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section 10(j) proceedings. Indeed, the Board generally will not relinquish that power at all, and instead has attempted only to “contingently delegate” it when the Board fears it will lose the requisite quorum to act. That is precisely what the Board did in the three orders upon which it has relied in this case, each time authorizing its general counsel to exercise its section 10(j) power if—and only if—the Board loses a quorum to do so itself. See 2011 Order, 76 Fed. Reg. at 69,768 (“These delegations shall become effective during any time at which the Board has fewer than three Members and shall cease to be effective whenever the Board has at least three Members.”); 2002 Order, 67 Fed. Reg. at 70,628 (same); 2001 Order, 66 Fed. Reg. at 65,998 (same).

At the time that this section 10(j) proceeding was authorized, the Board was definitively of the view that it possessed a quorum. That view was shared by the Office of Legal Counsel and espoused by the Department of Justice in litigation throughout the country, and thus was binding on the entire executive branch—including both the Board and its general counsel. See, e.g., Trevor W. Morrison, Libya, “Hostilities,” The Office of Legal Counsel, and the Process of Executive Branch Legal Interpretation, 124 Harv. L. Rev. F. 62, 63, 73 (May, 2011). Accordingly, the Board did not leave to its general counsel the task of deciding whether to seek section 10(j) relief. Instead, it insisted upon making that determination itself, and dictating the scope of the relief that its general counsel could seek. See App.105. Only in the shadow of the actions of the Board on whose behalf he acts, and that insisted it possessed a quorum, did the acting general counsel issue a companion

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memorandum purporting to authorize the regional director to file a complaint seeking the same relief that the Board itself had purported to authorize. See App.106.

The Second Circuit viewed this “belt-and-suspenders” approach as a virtue that avoided the need for it to address the constitutional question this Court definitively answered in Noel Canning. But in reality, the general counsel’s duplicative authorization was an ultra vires effort to thwart the courts’ prerogative to determine the remedial consequences of a decision holding the recess appointments invalid. In all events, the general counsel’s parallel and complementary actions were hardly independent of the Board’s authorization of this action and thus hardly suffice to insulate the validity of the Board’s membership and actions from judicial review. Had the Board declined to authorize the general counsel to initiate the proceeding, it is inconceivable that he nonetheless would have done so. Likewise, had the Board authorized the general counsel to seek only narrow relief (as one member preferred), it is in inconceivable that he nonetheless would have sought the broad relief actually obtained. Had he attempted to so, the Board (and OLC) surely would have decried such actions as ultra vires.

In the wake of Noel Canning, it is therefore crystal clear that this proceeding was not lawfully authorized. It was not lawfully authorized by the Board because the Board lacked a constitutionally appointed quorum when it purported to authorize it. And it was not lawfully authorized by the general counsel because he was wholly incapable of exercising

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any independent judgment about the propriety of section 10(j) relief while the Board maintained that it possessed a quorum and insisted on making that determination in the first instance. Accordingly, at a bare minimum, the Court should vacate the decision below for reconsideration in light of Noel Canning, which renders both the proceeding itself and the injunction it produced legal nullities.

Indeed, it would be particularly inequitable to let the injunction obtained in this case stand while the vast majority of the Board’s actions taken during the period when it lacked a quorum are concededly null and void after Noel Canning. There is simply no reason to allow the Board to obtain coercive preliminary injunctions backed by the force of an Article III court when it has no quorum to evaluate—let alone adjudicate—the merits of the underlying complaint. And there is certainly no reason to allow such an order to stand when it was obtained on the premise that the District Court was legally obligated to give extraordinary deference to the Board’s judgment that injunctive relief is appropriate when the Board had no quorum to make such a judgment. See infra Part II. Any other conclusion would allow the Board to achieve even more without a quorum than it could achieve with one, as it could obtain a effectively perpetual injunction without ever even giving the respondent an opportunity to adjudicate the merits of the underlying complaint. In short, section 10(j) injunctions are the last thing that should continue to be given effect once it is clear that they were authorized by and obtained on behalf of a quorumless Board.

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B. Any Delegation of the Board’s Section 10(j) Power Did Not Survive the Board’s Loss of a Quorum.

In the alternative, the Court should grant plenary review to resolve the circuit split that the decision below concededly exacerbates. Wholly apart from the problems attendant to the anomalous “contingent” nature of the Board’s delegations, bedrock agency principles preclude the Board’s general counsel from exercising the section 10(j) power once the Board loses a duly constituted quorum to do so itself.

As this Court has explained, the extent to which a government agency or actor may delegate its statutorily prescribed powers is “presumptively governed by principles of agency law.” FEC v. NRA Political Victory Fund, 513 U.S. 88, 98 (1994). One of those is the principle that a delegation of power is valid only if the principal possesses the power both when it is delegated and when it is exercised. See id. at 98 (Solicitor General could not retroactively authorize filing of certiorari petition when he “could not himself have filed a petition” by the time he attempted to authorize it). Likewise, “an agent’s delegated authority terminates when the powers belonging to the entity that bestowed the authority are suspended.” Laurel Baye, 564 F.3d at 473; see also, e.g., Restatement (Third) of Agency § 3.07(4) (2006); 2 William Meade Fletcher, Fletcher Cyclopedia of the Law of Corporations §§ 421, 504 (2008).

Applying these principles, the D.C. Circuit has concluded that a “delegee’s authority to act on behalf of the Board … cease[s] the moment the Board’s membership drop[s] below its quorum requirement of

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three members.” Laurel Baye, 564 F.3d at 473. As the court explained, “[t]he Board’s ability to legally transact business exists only when three or more members are on the Board.” Id. at 475. Accordingly, under the reasoning of Laurel Baye, any authority the general counsel had to exercise the Board’s section 10(j) power ceased to exist once the Board lost a quorum, which happened long before this proceeding was authorized and was not rectified until long after it concluded. (Of course, by the plain terms of the Board’s orders, that power never existed until the Board lost a quorum, meaning the orders are legal nullities on their face.)

The decision below squarely and openly conflicts with the reasoning of Laurel Baye. See App.17 (discussing Laurel Baye and explicitly rejecting its reasoning). So, too, do decisions from the Fifth, Eighth, and Ninth Circuits. See Frankl v. HTH Corp., 650 F.3d 1334, 1354 (9th Cir. 2011); Osthus v. Whitesell Corp., 639 F.3d 841, 844 (8th Cir. 2011); Overstreet v. El Paso Disposal, LP, 625 F.3d 844, 853–54 (5th Cir. 2010). Accordingly, there is an acknowledged and entrenched circuit split on the question of whether the general counsel may exercise the Board’s section 10(j) power while the Board lacks a quorum to exercise that power itself.

The need for this Court to resolve that question is particularly acute because courts repeatedly and mistakenly have concluded that it already did so in New Process Steel. In fact, the New Process Steel Court explicitly cautioned that its opinion should not be read as deciding the delegation question decided in Laurel Baye. While the Court declined to adopt Laurel

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Baye’s reasoning in rejecting the Board’s argument that two of its members could continue to exercise all of its powers once the Board lost a quorum, the Court went out of its way to emphasize that whether “prior delegations of authority to nongroup members, such as the regional directors or the general counsel,” may survive the loss of quorum “implicates a separate question that our decision does not address.” New Process Steel, 560 U.S. at 684 n.4 (emphasis added).

Nevertheless, lower courts repeatedly have maintained that New Process Steel decided the very question it in fact expressly reserved. See, e.g., Frankl, 650 F.3d at 1354 (“New Process Steel instructs that the Act’s quorum requirement … does not need to be satisfied for the Board’s earlier exercises and assignments of its authority, made with a proper quorum, to remain valid and in effect.”); Overstreet, 625 F.3d at 853 (rejecting Laurel Baye’s reasoning “[i]n light of the Court’s pronouncement in New Process Steel”); accord Osthus, 639 F.3d at 844; App.17. It thus falls to this Court to resolve the delegation split unconstrained by the distorting effect of New Process Steel’s dictum on the matter—and free from the lens of constitutional avoidance now that the recess appointment question has been definitively resolved.

Considered in that light, the decision below is clearly wrong. Indeed, if anything, New Process Steel only underscores the problems with the “contingent” manner in which the Board has sought to delegate its section 10(j) power. It is one thing for the Board to argue that preexisting delegations of power continue to operate even after it loses a quorum. But the

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delegations at issue are “preexisting” only in the sense that the orders were issued before the Board lost a quorum. By their plain terms, they became effective only if the Board lost a quorum to exercise its section 10(j) power itself. In other words, they are not really “delegations” at all, but rather are naked attempts to perpetuate the section 10(j) power should the Board lose a quorum to exercise it itself. That makes them even more troubling than the delegation rejected in New Process Steel, as they are akin not to “a tail that would … continue to wag after the dog died,” 560 U.S. at 688, but to a tail that would begin to wag only if the dog died. Nothing in New Process Steel endorses such a blatant evasion of Congress’ quorum requirement.

In the wake of this Court’s decision in Noel Canning, this question is an exceptionally important one. If the Board truly has the power to obtain perpetual injunctive relief even when it lacks a quorum to adjudicate the underlying labor dispute, then is not at all clear why the quorum requirement even matters—particularly if Article III courts are bound to defer utterly to the views of the quorumless Board (or, more aptly, its general counsel) that injunctive relief should be granted. See infra Part II. And it is not at all clear how litigants are to obtain the process they are constitutionally due if the Board lacks a quorum to adjudicate their claims and Article III courts insist that they are duty-bound to grant injunctive relief without adjudicating those claims themselves. The ultimate result is injunctions like this one, which has been in place for more than 18 months, and ultimately forced Petitioners into bankruptcy, all without any duly constituted body ever deciding whether Petitioners in fact committed

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the unfair labor practices alleged. If the Board can achieve all that even when it has no quorum to act, then it is hard to see why it ever would need one, or how this Court’s decisions in either New Process Steel or Noel Canning have any consequential effect.

II. The Lower Court’s Truncated And Highly Deferential Injunction Standard Conflicts With This Court’s Decisions And Reinforces An Acknowledged Circuit Split.

Even if this Court believes that this proceeding was lawfully authorized, it should grant certiorari to resolve an open and entrenched circuit split on the standard for granting section 10(j) injunctions. Not only did the court below refuse to bring circuit precedent into line with this Court’s decision in Winter, but both the District Court and the Court of Appeals made crystal clear that the highly deferential standard they approved was critical to granting the Board all the relief it requested. That makes this case an ideal vehicle for resolving a circuit split with enormous practical effect.

1. As this Court reiterated in Winter, a preliminary injunction “is an extraordinary remedy never awarded as of right.” 555 U.S. at 24. Rather, “[i]n each case,” the plaintiff “must establish [1] that he is likely to succeed on the merits, [2] that he is likely to suffer irreparable harm in the absence of preliminary relief, [3] that the balance of equities tips in his favor, and [4] that an injunction is in the public interest.” Id. at 20, 24. While “Congress may intervene and guide or control the exercise of the courts’ discretion,” courts should “not lightly assume that Congress has intended to depart from established

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principles.” Weinberger v. Romero-Barcelo, 456 U.S. 305, 312–13 (1982). Rather, “[u]nless a statute in so many words, or by a necessary and inescapable inference, restricts the court’s jurisdiction in equity, the full scope of that jurisdiction is to be recognized and applied.” Id. at 313.

Nothing in the NLRA provides even the slightest basis for concluding that Congress intended courts to apply anything other than the traditional four-factor test when considering petitions for injunctions under section 10(j). In its entirety, section 10(j) provides courts with only the following guidance: “Upon the filing of any such petition the court shall cause notice thereof to be served upon such person, and thereupon shall have jurisdiction to grant to the Board such temporary relief or restraining order as it deems just and proper.” 29 U.S.C. § 160(j). As multiple courts long have recognized, the phrase “just and proper” does not remotely suffice to provide “in so many words, or by a necessary and inescapable inference,” that Congress intended to circumscribe “the full scope” of courts’ traditional equity jurisdiction. Romero-Barcelo, 456 U.S. at 313; see, e.g., Miller v. Cal. Pac. Med. Ctr., 19 F.3d 449, 456 (9th Cir. 1994) (en banc); Sharp v. Parents in Cmty. Action, Inc., 172 F.3d 1034, 1037–38 (8th Cir. 1999); Kinney v. Pioneer Press, 881 F.2d 485, 490 n.3 (7th Cir. 1989).

Nonetheless, for years, other circuits have insisted on applying a truncated two-part standard that asks only whether there is “reasonable cause” to believe a violation of the NLRA has occurred and whether the relief requested is “just and proper.” See, e.g., Ahearn v. Jackson Hosp. Corp., 351 F.3d 226, 234

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(6th Cir. 2003); Sharp ex rel. NLRB v. Webco Indus., Inc., 225 F.3d 1130, 1133 (10th Cir. 2000); Hirsch v. Dorsey Trailers, Inc., 147 F.3d 243, 247 (3d Cir. 1998); Arlook ex rel. NLRB v. S. Lichtenberg & Co., 952 F.2d 367, 371 (11th Cir. 1992); Boire v. Pilot Freight Carriers, Inc., 515 F.2d 1185, 1188–89 (5th Cir. 1975).

2. While the practical impact of that split may have been open to debate in the past, it has become much more pronounced in the wake of this Court’s decision in Winter. Not only have courts sharply disagreed about whether Winter has any impact on what standard should govern, but courts that have refused to apply the Winter standard have done so on the ground that they consider it far more demanding than the two-prong test. See Overstreet, 625 F.3d at 851 (refusing to apply Winter test because requiring Board to “show ‘irreparable harm’ and ‘likelihood of success’ for § 10(j) relief would raise the factual threshold that the NLRB must reach”); Chester ex rel. NLRB v. Grane Healthcare Co., 666 F.3d 87, 97 (3d Cir. 2011). But see McDermott v. Ampersand Publ’g, LLC, 593 F.3d 950, 957 (9th Cir. 2010) (reiterating application of four-factor test in light of Winter); Muffley ex rel. NLRB v. Spartan Mining Co., 570 F.3d 534, 542 (4th Cir. 2009) (adopting four-factor test). In other words, courts not only are openly divided as to what standard should apply after Winter, but are confident that the difference between the standards is material.

This is a case in point. In granting the Board all the relief it requested, the District Court was at pains to emphasize—repeatedly—the extraordinary deference to which it believed the Board’s views were

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entitled, and the very limited role it believed it was permitted to play under section 10(j). For instance, the court insisted that so long as “the board’s legal theory is valid and its view of the facts finds adequate support in the record, then the district court is to provide relief.” App.61. Likewise, the court declared it “not [its] place … to adjudicate the case as if it were brought by a private party seeking injunctive relief, [or] to substitute itself for the board and purport to play a larger role in this area than the one assigned to it by Congress.” App.61. Indeed, the court even refused to allow petitioners to take discovery, cross-examine the Board’s witnesses, or otherwise test the Board’s evidence because “your day in court does not give you an opportunity to treat the NLRB like any other litigant and treat this as a start-from-scratch evidentiary hearing with me as the finder of fact.” App.84. Ultimately, in the court’s view, the traditional four-factor standard is simply too “demanding” to govern section 10(j) proceedings. App.39.

Rather than correct this near-total abdication of the District Court’s obligation to determine for itself whether injunctive relief was “just and proper,” the Court of Appeals endorsed it. Like the District Court, the court readily acknowledged that the two-prong test differs from the traditional four-factor test. See App.19. But the court deemed the more lenient two-part test appropriate because section 10(j) “requires (1) deference to the NLRB, which resolves the underlying unfair labor practice complaint on the merits and makes an initial determination, prior to the filing of a petition, to file such a complaint, as well as (2) speedy resolution to preserve the status quo in

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a labor dispute.” App.19 (citations omitted). The court also suggested that Winter had little practical impact anyway, as it “merely restated the basic, four-part test for a preliminary injunction.” App.19.

That reasoning is not remotely persuasive. First of all, as this Court has recognized, the filing of a complaint is typically a prosecutorial matter in which the Board itself plays no role. See 29 U.S.C. § 153(d); NLRB v. United Food & Commercial Workers Union, Local 23, AFL-CIO, 484 U.S. 112, 125 (1987). And, of course, the fact that the Board ultimately will resolve the underlying complaint hardly provides a basis for deferring to the Board’s view before it has done so. Moreover, the need for speedy resolution is typical of any request for preliminary injunctive relief, which is why it is already incorporated into the traditional irreparable injury analysis. Finally, the notion that the Article III courts should be more solicitous of executive branch efforts to enjoin the governed than vice-versa is profoundly wrong as a matter of separation of powers and basic constitutional principles. In short, the mere facts that the government wishes to enjoin private conduct, and to do so quickly, hardly justify a departure from long-standing equitable principles. Indeed, this Court already has squarely rejected the notion that the four-factor standard may be discarded for such generic policy reasons. See eBay, Inc. v. MercExchange, L.L.C., 547 U.S. 388, 391–94 (2006).

3. As the decisions of both courts below make clear, the two-prong test and the near-wholesale deference that it contemplates were central to the decision to grant broad injunctive relief in this case.

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That makes this an ideal vehicle for resolving a split that has pervaded the lower the courts for decades and has only worsened since Winter. Indeed, this case vividly illustrates the enormous practical impact of applying a standard so utterly divorced from the factors that traditionally govern a court’s exercise of its equitable powers. The explicit premise of Winter is that “[a] preliminary injunction is an extraordinary remedy never awarded as of right.” Winter, 555 U.S. at 24. And yet, the explicit premise of the District Court’s analysis was that, so long as “the board’s legal theory is valid and its view of the facts finds adequate support in the record, then the district court is to provide relief.” App.61 (emphasis added). In making its minimal determination as to whether those conditions were satisfied, the court would not even allow Petitioners to test the Board’s evidence—let alone put on their own case as to why injunctive relief was not just and proper.

Perhaps there is some statute out there that truly strips courts of their duty to “balance the competing claims of injury and … consider the effect on each party of the granting or withholding of the requested relief,” Winter, 555 U.S. at 24, but section 10(j) is not it. Indeed, to the extent section 10(j) has anything to say about the matter, it instructs the court to determine whether injunctive relief is “just and proper,” 29 U.S.C. § 160(j)—which is just “another way of saying ‘appropriate’ or ‘equitable.’” Miller, 19 F.3d at 458. It is simply implausible to read into those two words “a necessary and inescapable inference,” Romero-Barcelo, 456 U.S. at 313, that Congress intended to effect “such a major departure from th[e] long tradition” of a more searching “equity practice

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with a background of several hundred years of history.” Danielson v. Joint Bd. of Coat, Suit & Allied Garment Workers’ Union, 494 F.2d 1230, 1241–42 (2d Cir. 1974) (Friendly, J.) (rejecting argument that Board is entitled to relief under identical language of section 10(l) so long as its contentions are not “insubstantial and frivolous”).

Finally, while it is little surprise that the standard applied would produce the kind of sweeping relief that the Board managed to obtain here, it is particularly troubling that the courts below granted such extraordinary deference to the views of the Board in this case, where both courts proceeded on the premise that the Board did not even authorize the proceeding—a premise that Noel Canning since has confirmed was correct. It is bad enough to defer entirely to the views of a Board with a quorum when it comes to granting coercive injunctive relief. But if section 10(j) truly reduces an Article III court’s role in the process to little more than a rubber-stamp, then at the very least, deference should be granted only to the views of the Board itself, which indisputably never were validly provided in this case.

Nonetheless, the courts below applied wholesale deference to force Petitioners to capitulate to demands that the Board itself lacked the power to make. Rather than viewing this dubious course of events with the skepticism it deserves, the courts accepted without question—or even adversarial testing—every legal and factual representation the Board made. Surely that is not what Congress intended when it instructed courts to grant injunctive relief as they “deem[] just and proper.” 29 U.S.C. § 160(j). Thus, at

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a bare minimum, the case should be remanded with instructions to reconsider the propriety of injunctive relief in light of the reality that there were no views of the Board to which to defer. But the far better course would be to conclude on the merits that the proceeding below was unlawful and improper from start to finish.

CONCLUSION

For the foregoing reasons, this Court should grant the petition for certiorari and either consider the questions presented on the merits or vacate and remand for reconsideration in light of Noel Canning.

Respectfully submitted,

ROSEMARY ALITO GEORGE P. BARBATSULY K&L GATES LLP One Newark Center, Tenth Floor Newark, NJ 07102

PAUL D. CLEMENT Counsel of Record ERIN E. MURPHY BANCROFT PLLC 1919 M Street NW Suite 470 Washington, DC 20036 (202) 234-0090 pclement@bancroftpllc.com

Counsel for Petitioners

July 25, 2014