Ninth Circuit Court of Appeals Rejects Argument that President’s Removal of Former NLRB General Counsel was Improper, Upholding Validity of NLRB Complaint

On behalf of the NLRB Office of the General Counsel, Washington, DC: On Friday, January 27, 2023, a three-judge panel of the United States Court of Appeals for the Ninth Circuit issued a unanimous decision in Aakash Inc., DBA Park Central Care and Rehabilitation Center v. NLRB, rejecting the argument that President Biden’s removal of former NLRB General Counsel Peter Robb was improper. In the decision authored by Judge Graber, and joined by Judges Wallach and Watford, the Court explained that the President’s power to remove derives from Article II of the Constitution and that no provision of the National Labor Relations Act (NLRA) curbed that power with respect to the NLRB General Counsel. This is in stark contrast to Congress’s clear and unequivocal provision of removal protection for NLRB Members. Accordingly, the Court upheld the validity of the NLRB complaint at issue and enforced the Board’s bargaining order. In April 2022, the Fifth Circuit’s opinion in Exela Enterprise Solutions, Inc. v. NLRB, also concluded that the President’s removal of General Counsel Robb was valid. In the Ninth Circuit’s opinion, the Court found “no reason to part ways with our sister circuit’s persuasive discussion.” The Aakash case was litigated in the Ninth Circuit Court of Appeals by a team of NLRB attorneys from the Appellate and Supreme Court Litigation Branch, as well as attorneys from the Department of Justice, with assistance from the NLRB’s Contempt, Compliance, and Special Litigation Branch. “I’m proud of the team of talented and committed public servants from the NLRB and DOJ for their excellent job on this case. The Ninth Circuit’s thorough and well-reasoned decision joins the growing chorus upholding the removal and appointment actions of the President with respect to the NLRB and affirming the critical enforcement efforts of the Agency,” said General Counsel Jennifer Abruzzo.