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Monday, February 4, 2013

Noel Canning v. NLRB: D.C. Court of Appeals Invalidates Recess Appointments to NLRB and NLRB Decision

On January 4, 2012, President Obama used recess appointments to name three members to the National Labor Relations Board.  U.S. Const. art. II, § 2, cl. 3.  On January 25, 2013, the federal Court of Appeals for the D.C. Circuit in Noel Canning v. NLRB, ___ F.3d ___, (D.C. Cir., 1/25/13) held that the President lacked constitutional authority to make these recess appointments, for two reasons.  

First, the Court held that President Obama did not make the appointments "during the Recess of the Senate," as required by the Constitution.  In short, the Court held that the time period during which the President may make recess appointments is limited to "the Recess," meaning "the period between sessions that would end with the ensuing session of the Senate."  Slip op. at 18.  

Second, the Court held that the three vacancies filled by the President did not "happen during the Recess of the Senate," as required.  Slip op. at 30.  The Court held that "to happen" means "to arise," and that only vacancies that "arise" during the period between Senate sessions may be filled by recess appointments. Slip op. at 39.  

The Court then held that none of the three recess appointments arose, and the President made none of the appointments, during the Recess of the Senate.  Slip op. at 30, 40. The Court found that the Senate did not recess between the first and second sessions of the 112th Congress, so no recess appointments were possible.  Slip op. at 42-43.  

As a result, the Board had no quorum when it decided the case at issue on February 8, 2012, and its decision is void.  Slip op. at 44.  

Many have asked how this case impacts the Board's decision in In re DR Horton, Inc., 357 NLRB 184 - 2012. It's a good question. The Board decided Horton on January 3, 2012, the day before President Obama made the recess appointments at issue in Noel Canning. However, one of the three Board members who signed off on Horton, Craig Becker, was himself the subject of a recess appointment on March 27, 2010. And DR Horton's counsel has filed a letter with the Fifth Circuit arguing that the reasoning in Noel Canning invalidates Becker's appointment and the Horton decision along with it.  Only time will tell whether this argument will carry the day.  

In the mean time, you can find Noel Canning v. NLRB here

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