Biden Firing of Labor Board Lawyer Robb Draws Doubts at 5th Cir.

A government lawyer faced strong questioning about President Joe Biden‘s Inauguration Day termination of the National Labor Relations Board’s top Trump-era lawyer during appellate court oral argument over the president’s authority to fire board general counsels before their terms expire.

No prior NLRB general counsel had been sacked before Biden fired Trump administration NLRB general counsel Peter Robb, Judge Jennifer Walker Elrod of the U.S. Court of Appeals for the Fifth Circuit said Thursday.

Elrod, who was named to the appeals court by President George W. Bush, also signaled that she was troubled by the prospect of presidents terminating Senate-confirmed appointees at any agency, even when those officials have set terms in office.

She expressed dismay that the administration was relying, for the first time during oral argument, on a U.S. Supreme Court case to bolster its position.

Although the other two judges on the panel didn’t engage in substantive discussion on the issue, Elrod’s sharp questioning suggests the Biden administration faces at least some resistance to winning judicial approval of the move.

The Fifth Circuit is set to hand down the first court ruling directly addressing the legality of Robb’s ouster, which has significant long-term implications for the NLRB’s independence from the White House.

But its near-term impact is hazier.

A ruling against Robb’s termination could delegitimize the work of his immediate successor, Peter Sung Ohr, who served on an interim basis for six months. Current General Counsel Jennifer Abruzzo, however, took steps after her Senate confirmation that may safeguard the work of the general counsel’s office in the interim period after Robb was sent packing.

The case before the Fifth Circuit involves business software firm Exela Enterprise Solutions Inc.'s challenge to a board decision against the company for failing to bargain with a United Steelworkers affiliate. Exela refused to bargain in order to challenge the underlying union win in an election, which the company contends was tainted by unlawful union conduct.

Exela argues that the unfair labor practice complaint that Robb’s replacement issued against it was legally invalid because Robb’s termination was unlawful.

Breaking Tradition

In response to Elrod’s questioning, Exela’s lawyer, Daniel Schudroff of Jackson Lewis P.C., said Abruzzo’s ratification of the complaint against the company has no effect because Abruzzo made that move after the board ruled. The ratification also isn’t part of the record in the case before the court, he added.

Schudroff emphasized that a president had never before fired an NLRB general counsel. President Donald Trump didn’t terminate Obama-era General Counsel Richard Griffin, who argued against the Trump administration’s position when the U.S. Supreme Court considered whether federal labor law prohibits class-action waivers in workers’ mandatory arbitration agreements in Epic Systems v. Lewis, he said.

Elrod raised the unprecedented nature of Robb’s ouster during her questioning of U.S. Justice Department lawyer Daniel Tenny.

“People are being let go before their term in a variety of agencies and that’s perfectly acceptable even though the tradition was not to do that, is that correct?” Elrod asked. “And so it’s the government’s position that anyone can be removed, absent defined protections against their removal, even when they’re appointed for a term?”

While there may be political arrangements to keep certain officials in place, Tenny replied, presidents have the power to remove them unless there’s an explicit legal safeguard against termination. The National Labor Relations Act doesn’t specify such protections for NLRB general counsels, he said.

“So the specification of a term is somewhat superfluous because it’s always removal at the will of the president?” Elrod queried.

The Supreme Court made clear in its 1897 ruling in Parsons v. U.S. that the term has a legal effect—the person must leave office when it expires, Tenny said. But it doesn’t prohibit removal, he said.

‘Silver Bullet’ Missing

During Schudroff’s rebuttal argument, he confirmed to Elrod that neither the administration nor Exela had included the Parsons ruling in their briefs.

“So the government’s seminal case—that they say is the silver bullet—they raise for the first time today in oral argument,” Elrod said, adding that “we normally have a rule that you’re not supposed to rely on cases without discussing them.”

Judge Carl Stewart, who was appointed by President Bill Clinton, asked if Schudroff knew of Parsons, in an apparent attempt to downplay the fact that it didn’t appear in the briefing. Schudroff said he’s familiar with the decision.

Stewart said that the situation is different than when a lawyer raises an obscure case “out of left field.” And while it’s preferable to include precedents in the briefs, “it’s one of the reasons we have oral argument in some of these cases, it helps us shape the issues and fish out what counsel, for reasons known to them, don’t tell us,” he said.

The third judge on the panel, George W. Bush appointee Edith Brown Clement, didn’t wade into the debate over Biden’s power to fire Robb.

NLRB lawyer Heather Beard didn’t address the presidential authority issue, sticking to arguments related to board precedent on why the ruling in the case should stand.

The case is Exela Enter. Sols. v. NLRB, 5th Cir., No. 21-60426, oral argument 4/7/22.