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NLRB Asks Supreme Court To Review Decision That Struck President Obama’s Recess Appointments

On April 25, 2013, the National Labor Relations Board (“NLRB” or “Board”) filed a petition for a writ of certiorari asking the United States Supreme Court to review the decision in NLRB v. Noel Canning in which the D.C. Circuit Court of Appeals held that President Obama’s January 2012 recess appointments to the NLRB were unconstitutional.  The Court ruled President Obama’s appointments were not valid because the Senate was not in “the Recess” at the time he made them and thus, the Board lacked the required quorum needed to conduct business.  Under the Recess Appointments Clause of the Constitution, the President is able to bypass Senate approval and fill executive vacancies “that may happen during the Recess of the Senate.”  The Court held “the Recess” means the intersession break between annual Senate sessions, not any intrasession break during an ongoing session.  It also held an executive vacancy does not “happen” during the Recess unless the office actually becomes vacant during such a recess.

The petition presents two questions to the Supreme Court: 1) “Whether the President’s recess-appointment power may be exercised during a recess that occurs within a session of the Senate, or is instead limited to recesses that occur between enumerated sessions of the Senate,” and 2) “Whether the President’s recess-appointment power may be exercised to fill vacancies that exist during a recess, or is instead limited to vacancies that first arose during that recess.”  In the Board’s view, the President’s power is not limited to inter-session recesses, and the President may fill a vacancy that exists during a recess, whether or not the vacancy arose during that recess.  The Board argues that Noel Canning would have “serious and far-reaching consequences” and that it “repudiates understandings of the Recess Appointments Clause that have been maintained and relied on by the Executive for most of the Nation’s history.” 

Seventy-Two Cases Challenge NLRB’s Authority Based On Noel Canning Decision

While the Board continues to hear and decide disputes during the pendency of the Noel Canning appeal, employers all over the country are appealing NLRB decisions based on the reasoning in Noel Canning.  At least 72 cases pending in federal appeals courts challenge the Board’s authority.  Employers argue that Noel Canning was decided correctly by the D.C. Circuit, that the President’s recess appointments were unconstitutional and, therefore, the Board lacked a quorum in any decisions issued after January 4, 2012, when the President made the recess appointments.  Hunton & Williams attorneys are taking part in the action and recently submitted briefs in two recess appointment cases that are the lead cases raising this issue in their respective Circuit Courts.  See the briefs submitted in Huntington Ingalls Incorporated v. NLRB in the Fourth Circuit and Big Ridge, Inc. v. NLRB in the Seventh Circuit. 

Third Circuit Holds President Obama’s Becker Appointment Invalid — Expands Noel Canning Reasoning And Impact

On May 16, in a significant development, the Third Circuit held in NLRB v. New Vista Nursing & Rehabilitation that the Recess Appointments Clause is strictly limited to intersession breaks between annual Senate sessions.  In going even further than the D.C. Circuit in Noel Canning, the Third Circuit held that the appointment of Board Member Becker, who was appointed during a March 2010 intrasession break, was also invalid, potentially opening up for challenge an even larger number of active NLRB cases in which Member Becker participated.