The department also takes issue with the part of the Noel Canning opinion that restricts recess appointment power to vacancies that arise during a recess, not those that existed at the time of a recess.
"By confining the Clause to vacancies that arise during a recess, Noel Canning makes the Presidents ability to fill offices turn on the happenstance of when the previous holder left office," Brinkmann wrote. "That approach disserves the purpose of the Clause."
DOJ's word on the scope and affect of the ruling won't be the last. The Third Circuit will get to hear from the other side of the dispute: the lawyers representing New Vista Nursing and Rehabilitation LLC.
New Vista, represented by Louis Capozzi Jr. of Harrisburg, Pa.'s Capozzi Adler, must submit a response to the court by March 7. The appeals court is scheduled to hear the case March 19.
This article originally appeared as a post on The BLT: The Blog of LegalTimes.