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Ninth Circuit Holds President Biden Had Authority to Terminate NLRB’s General Counsel


Last Friday, the Ninth Circuit Court of Appeals held that President Biden had the authority to remove the general counsel of the National Labor Relations Board (“NLRB”), despite claims to the contrary. 

Readers will likely recall that when President Biden came into office back in January 2021, he took swift steps to remove the NLRB’s general counsel (Peter Robb) on his first day in the Oval Office and insert his own general counsel (Jennifer Abruzzo) who was later confirmed by the Senate in July of 2021.  Critics of the move immediately called President Biden’s move unlawful and without any legal authority, not to mention the fact this was the first time a president and removed the NLRB’s general counsel.

Unsurprisingly, lawsuits began over the matter in both the Fifth and Ninth Circuits on the grounds that the termination was unlawful and any subsequent rulings from the NLRB were invalid.  Last April, the Fifth Circuit Court of Appeals held that President Biden lawfully terminated the NLRB’s’s general counsel (and therefore any subsequent rulings from the NLRB’s were valid.)  

As noted above, last Friday, the Ninth Circuit Court of Appeals followed suit and issued a similar ruling.  In its ruling, the Ninth Circuit held that the National Labor Relations Act (“NLRA”) allowed the removal of board members “for neglect of south or malfeasance in office.”  Notably, a board member cannot  be removed simply because a president desires it.  However, the NLRA does not provide similar protections for the NLRB’s general counsel.  As a result, the Ninth Circuit held the President Biden could lawfully remove President Trump appointed Peter Robb, and therefore any subsequent  rulings from the NLRB were valid.


For additional information:  https://cdn.ca9.uscourts.gov/datastore/opinions/2023/01/27/22-70002.pdf

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