On Wednesday, May 16, the U.S. Court of Appeals for the Third
Circuit issued a 2–1 decision striking down President
Obama's March 2010 "recess appointment" of Craig
Becker to the National Labor Relations Board ("NLRB").
The case is NLRB v. New Vista Nursing and Rehabilitation
(Case Nos. 11-3440, 12-1027, 12-1936). The court majority held that
the President's appointment of Becker was invalid because it
did not occur during "the Recess of the Senate" and was
thus a constitutionally defective intra-session appointment. In
reaching this conclusion, the Third Circuit reinforced the January
2013 decision of the D.C. Circuit in Noel Canning v. NLRB,
705 F.3d 490, 497 (D.C. Cir. 2013), where Jones Day was counsel of
record, which relied on similar reasoning to strike down the
"recess appointments" of three other NLRB members.
The Third Circuit's decision in New Vista Nursing is
the latest chapter in the ongoing controversy over the validity of
several "recess appointments" made by President Obama to
the NLRB. At the center of this controversy is the interpretation
of the Recess Appointments Clause of the U.S. Constitution and the
question of how to define "the Recess of the Senate,"
during which the President is empowered to make certain
appointments without first obtaining the consent of the Senate.
Defending the appointments in court, the Obama administration has
taken the aggressive position that the Senate is "in
recess" whenever it is not in a "regular session"
and therefore is not functionally capable of performing its
standard role of advice-and-consent. The administration has also
contended that the President should receive considerable deference
in determining when the Senate is in recess, and that a robust
recess-appointment power is necessary to provide for a continuing
efficient operation of the government. The importance of the issue
is illustrated by the situation of the NLRB, which, according to
the Supreme Court's decision in New Process Steel, 130
S. Ct. 2635 (2010), cannot perform its official functions without a
minimum of three members who have been confirmed by the Senate or
who have been given proper recess appointments. Currently, the
Board has only three members, which include two purported Board
members who received "recess" appointments from President
Obama on January 4, 2012.
In New Vista Nursing, the Third Circuit joined the D.C.
Circuit in rejecting the administration's broad reading of the
recess-appointment power, which the court determined "would
eviscerate the divided-powers framework." Under the
administration's reading, the court explained, "If the
Senate refused to confirm a president's nominees, then the
president could circumvent the Senate's constitutional role
simply by waiting until senators go home for the evening."
That cannot be the rule, the court held, because the Constitution
makes clear that Senate consent should be the norm, with the
recess-appointment power playing a mere "auxiliary role,"
in the words of Alexander Hamilton. Under the administration's
view, by contrast, "The exception of the Recess Appointments
Clause would swallow the rule of the Appointments
Clause."
In concluding that "the Recess of the Senate" is limited
to the period of time between Senate sessions—inter-session
recesses—the Third Circuit placed considerable weight on the
durational provision of the Recess Appointments Clause, which
provides that recess appointments "shall expire at the End
of" the Senate's next session. The purpose of this
provision, the court found, is to give the Senate a chance to
confirm or reject a recess appointee once the Senate comes back
into session. Thus, if the Constitution had intended to authorize
recess appointments during breaks in the middle of a session, the
appointments would only last to the end of that session,
not until the end of the next session.
If the D.C. Circuit decision in Noel Canning and the Third
Circuit decision in New Vista Nursing are upheld, the
impact of these rulings will be to make all decisions issued by the
Board subject to invalidation dating back to at least August 27,
2011, which is the last time the Board had a quorum of three
members who were not installed via disputed "recess"
appointments.
Final resolution of this controversy will likely come from the
United States Supreme Court. The Obama administration has already
filed a petition seeking Supreme Court review of the D.C.
Circuit's holding in Noel Canning, where the same
recess-appointments issue is squarely presented. If the Supreme
Court grants review in Noel Canning, where Jones Day
represents the Noel Canning company against the NLRB, the Court
would likely hear the case sometime in the fall of 2013 and decide
the case by the end of June 2014.
Additionally, the New Vista Nursing decision makes the
Third Circuit another "friendly" jurisdiction where
parties who are adversely affected by an order of the Board can
file an appeal if they are subject to that court's
jurisdiction. Indeed, any such appeals may be expected to be held
in abeyance, as is presently the case in the D.C. Circuit, pending
a potential resolution by the Supreme Court.
Finally, the New Vista Nursing decision reinforces
arguments that parties to Board proceedings have been making since
the Noel Canning decision, including arguments that the
Board has not had the authority to (i) decide cases, (ii) delegate
Section 10(j) injunctive relief authority to its Acting General
Counsel, (iii) engage in rulemaking, (iv) issue subpoenas, (v)
appoint regional directors, and (vi) have its orders enforced in
circuit courts. Additional arguments based on the Noel
Canning and New Vista Nursing decisions may also be
available to parties at various stages in Board proceedings,
depending on the facts of the case in question.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
