An auto parts maker on Monday urged the U.S. Supreme Court to block a National Labor Relations Board administrative case from proceeding against it while the company pursues claims that the agency's structure violates the U.S. Constitution.
Yapp asked the Supreme Court to rule on its application by Tuesday, when the company is scheduled to face a hearing before an NLRB administrative law judge.
The application will be handled by conservative Justice Brett Kavanaugh, who oversees requests arising from states covered by the Cincinnati-based 6th U.S. Circuit Court of Appeals, including Michigan. Kavanaugh could deny the application, request additional briefing or refer it to the full court for further action.
Yapp is appealing to the 6th Circuit, which on Sunday denied the company's motion to stay the administrative case pending the appeal.
An NLRB spokeswoman and lawyers for Yapp did not immediately respond to requests for comment.
Nearly 20 other companies including Amazon.com, Elon Musk's SpaceX and pipeline operator Energy Transfer have filed similar lawsuits attacking the NLRB's structure. Three judges in Texas have temporarily blocked board cases from moving forward, while at least four judges in other states have refused to do so.
The Texas judges, who are all appointees of Republican former President Donald Trump, said they were bound by a 2022 5th U.S. Circuit Court of Appeals ruling in Jarkesy v. U.S. Securities and Exchange Commission that said SEC administrative judges were unconstitutionally insulated from removal. They said that SEC judges are comparable to judges at the NLRB.
The Supreme Court affirmed the Jarkesy ruling on other grounds in June and did not reach the issue of restrictions on removal.
But the 6th Circuit, which is hearing Yapp's appeal, in a separate 2022 case upheld removal protections for administrative judges with the Federal Deposit Insurance Corporation.
U.S. District Judge Laurie Michelson in ruling against Yapp last month said that the 6th Circuit decision made clear that administrative judges can be shielded from at-will removal if they only make non-final recommendations to agencies rather than issuing final, binding decisions.
The case is Yapp USA Automotive Systems v. NLRB, U.S. Supreme Court, No. 24A348.
For Yapp: Timothy Garrett of Bass, Berry & Sims; Matthew Nelson of Warner Norcross + Judd
For the NLRB: Michael Dale
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