Justices Send Back Case on Trump Labor Board Lawyer’s Firing

The US Supreme Court granted United Natural Foods Inc.’s challenge to President Joe Biden’s authority to fire Peter Robb, the Trump-era general counsel of the National Labor Relations Board, in order to remand the case for reconsideration in light of the end to the Chevron doctrine.

The justices on Tuesday sent back the case to the US Court of Appeals for the Fifth Circuit, which had ruled that the then-acting NLRB general counsel had the power to withdraw a complaint against two unions that was issued by his Trump-era predecessor. Biden fired Robb, a former management-side lawyer who led the labor board’s legal arm, on Inauguration Day in 2021.

The high court order instructed the Fifth Circuit to take another look at the case in light of last week’s decision overturning a longstanding doctrine that judges should defer to agency interpretations of ambiguous statutes.

The Fifth Circuit rejected United Natural Foods’ argument that the NLRB had the authority to decide whether to pull the complaint after the company filed a motion for summary judgment against the unions. The board’s reading of the National Labor Relations Act to allow the withdrawal was permissible and must be affirmed, the appeals court said.

The company argued in its petition for review that lower courts are struggling with issues related to the growth of the administrative state. Supreme Court guidance on the president’s removal power and the scope of the general counsel’s prosecutorial discretion is “urgently needed,” it said.

The NLRB said in its brief that the Fifth Circuit’s correct decision doesn’t conflict with any Supreme Court or circuit court authority, making review of its ruling unnecessary.

Morgan, Lewis & Bockius LLP represents United Natural Foods. The US Solicitor General’s Office is representing the NLRB.

The case is United Natural Foods, Inc. v. NLRB, U.S., No. 23-558, case remanded 7/2/24.