On January 25, the U.S. Court of Appeals for the D.C. Circuit held that the purported recess appointments of National Labor Relations Board members Sharon Block and Richard Griffin, as well as former member Terence Flynn, were unconstitutional because these appointments were made while the Senate was not in an intersession recess and the vacancies

these three putative members purportedly filled did not begin during an intersession recess of the Senate. Noel Canning v. NLRB, 705 F.3d 490. Critics of this decision contend that Noel Canning has serious, far-reaching consequences because it does not give the president the authority to fill vacant offices during intrasession recesses — which account for most of the time that the Senate is not in session; precludes him from filling many vacancies even during intersession recesses; and threatens significant disruption of the federal government operations — including, most immediately, those of the board.

On April 23, Donald Verrilli Jr., the solicitor general, petitioned the U.S. Supreme Court for a writ of certiorari seeking vacation of the court’s ruling, arguing that the president’s recess appointment activity is not confined to intersession recesses, and the president may fill a vacancy that exists during a recess of the Senate, even if the vacancy did not first arise during that recess. On May 23, Noel Canning, a unit of The Noel Corp., replied that it did not object to Supreme Court review.

The Noel Canning case arose in the context of a routine review of an NLRB decision. A three-member panel of the board, comprised of members Brian Hayes, Flynn and Block, affirmed the findings against the employer in a decision dated February 8, 2012. On that date, the board purportedly had five members, two of whom (Chairman Mark Pearce and Hayes) had been confirmed by the Senate and the other three appointed by the president on January 4, 2012. The first of these three members, Block, filled a seat that became vacant on January 3, 2012, when board member Craig Becker’s recess appointment expired. The second of these three members, Flynn, filled a seat that became vacant on August 27, 2010. The third, Griffin, filled a seat that became vacant on August 27, 2011.

At the time of the president’s purported recess appointments of the three board members, the Senate was operating pursuant to a unanimous consent agreement, which provided that the Senate would meet in pro forma sessions every three business days from December 20, 2011, through January 23, 2012. The agreement stated that "no business [would be] conducted" during these sessions. The Senate overruled its prior agreement by unanimous consent and passed a temporary extension to the payroll tax. During the January 3, 2012, pro forma session, the Senate acted to convene the second session of the Congress to fulfill its constitutional duty to meet on January 3.

On the same date that the board issued its decision, the employer filed a petition for review, and the board shortly thereafter filed its cross-application for enforcement. The employer, Noel Canning, questioned the authority of the board to issue the order on two constitutional grounds: (1) that the board lacked authority to act for want of a quorum, as three of the board’s five members were never validly appointed because they took office under putative recess appointments that were made when the Senate was not in recess; and (2) that the vacancies these three putative members purportedly filled did not first begin during a recess of the Senate.

After finding that the board’s decision on the merits was supported by substantial evidence, the court next found that the employer’s failure to raise the arguments related to the recess appointments earlier comes within the exception for "extraordinary circumstances" and, therefore, held it was not barred from considering the constitutional issues raised by the employer.

Upon consideration of these issues, the D.C. Circuit agreed with the employer that the appointments were constitutionally invalid and the board, therefore, lacked a quorum. Accordingly, the court granted the employer’s petition for review and voided the board’s order.

The board contended that despite the purported appointments not being made "by and with the Advice and Consent of the Senate," the president nonetheless validly made the appointments under the recess appointment-clause, which provides that "[t]he President shall have Power to fill up all Vacancies that may happen during the Recess of the Senate, by granting Commissions which shall expire at the End of the next Session." Art. II, § 2, cl. 3.

NARROW DEFINITION OF ‘RECESS’

The court, however, found that the recess-appointment clause was inapplicable both because the Senate was not in recess at the time of the putative appointments and because the vacancies did not "happen" during the recess of the Senate. Either ground alone was sufficient to overturn the board’s findings.

The court found that the term "the Recess" in the recess-appointment clause refers only to the intersession recess of the Senate, i.e., the period between sessions of the Senate when the Senate is by definition not in session and therefore unavailable to receive and act upon nominations from the president. The court reasoned that the recess-appointment clause should be construed narrowly to address situations only when the Senate is unavailable to provide advice and consideration on appointees; and a broader interpretation of "the Recess" to include intrasession recesses would permit the president to decide when the Senate is in recess, thus diminishing the checks and balances inherent in the advice-and-consent requirement and giving the president free rein to appoint his nominees whenever he pleased.

The board conceded at the oral argument in Noel Canning that the appointments at issue were made during the intrasession recess because the president made his three appointments to the board on January 4, 2012, one day after Congress began a new session. Thus, according to the court, the appointments did not occur during "the Recess."

The court further found that in the recess-appointment clause language "Vacancies that may happen during the Recess of the Senate," the word "happen" is limited to covering only vacancies that "arise," "begin" or "come into being" during the recess, rather than vacancies that "happen to exist" during "the Recess." The three board seats that the president attempted to fill on January 4, 2012, had been vacant on August 27, 2010, August 27, 2011, and January 3, 2012, respectively. Thus, the court determined that the appointments were also invalid because the vacancies did not begin during "the Recess."

Judge Thomas Griffith concurred in the court’s opinion except he stated he would stop the constitutional analysis after the court’s holding on intrasession recess appointments and not address whether the president can fill vacancies that "happen to exist" during "the Recess."

THE AFTERMATH

The NLRB has continued to hear and decide cases notwithstanding its D.C. Circuit loss, but as of May 24, the Noel Canning decision potentially affects several hundred cases that the board has already decided, as well as more than one hundred pending cases in the circuit courts of appeal.

Indeed, the Third Circuit, in a 2-1 decision, held on May 16 that President Obama’s recess appointment of Craig Becker during a March 2010 intrasession break was invalid because the recess appointment power applies only to an "intersession" recess of the Senate. NLRB v. New Vista Nursing & Rehab., No. 11-3440. Dozens of other cases in the circuit courts of appeal have also raised the recess-appointment status of former member Becker. Also citing Noel Canning, some parties have challenged NLRB complaints on the ground that the regional directors (in about 10 regions) were invalidly appointed. Investigatory subpoenas and charge investigations have also been challenged on Noel Canning grounds, as have representation hearings and decisions.

This uncertainty will undoubtedly continue throughout the next year because it is unlikely that the Supreme Court will rule on Noel Canning before 2014, even if it grants the petition for certiorari. Furthermore, if the board continues to issue decisions and proceeds as if it’s "business as usual" with its current makeup of two recess appointees, this uncertainty could actually increase until at least Pearce’s term expires on August 27.

Kenneth R. Dolin is a partner at Seyfarth Shaw and a fellow in the College of Labor and Employment Lawyers.