D.C. Circuit Invalidates President’s Recess Appointments to the NLRB

By  Nicole Cuda Pérez


In a decision released on January 25, 2013, the D. C. Circuit Court of Appeals invalidated President Obama's January 2012 appointments of three NLRB members. The Court held that the Recess Appointments Clause (“RAC”) of the U.S. Constitution did not govern the President’s actions because (1) the Senate was not “in the recess” at the time of the appointments; and (2) the Board vacancies did not arise or “happen” during the recess.  Since the appointments were not proper, the Board lacked a quorum when it issued its decision in Noel Canning and thus its order in that case was void.


On December 17, 2011, the Senate adopted a unanimous consent agreement providing that the Senate would adjourn on that date and not resume normal proceedings until January 23, 2012.  During this “break,” the Senate would meet for pro forma sessions only; the conduct of business during the break without unanimous consent was precluded by the agreement. 

On January 4, 2012, President Obama appointed three members to the Board: Sharon Block, Terence Flynn, and Richard Griffin. Craig Becker’s recess appointment had expired on January 3, 2012; Peter Schaumber’s former seat had been unfilled since the expiration of his term on August 27, 2010; and Wilma Liebman’s former seat had been unfilled since the expiration of her term on August 27, 2011.


It is important to note the limited impact of this ruling.  The court vacated the Board’s order and denied enforcement of the Board’s order in this particular case.  As Chairman Pearce noted in his January 25, 2013 statement, there are similar cases pending in other Courts of Appeals, so it is not a given that about a year’s worth of Board work will be invalidated.

During the Senate’s “break,” the Senate conducted no business.  Since 2010, Senate Republicans have blocked votes on two Board nominations put forward by the President.  When yet another Board vacancy arose on January 3, 2012, leaving the five-member board without a quorum, the President decided that in order for the Board to function, he needed to act.

The President acted under the authority of the RAC, which states that the “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 their next Session.” U.S. Const. art. II § 2, cl. 3 (emphasis added).  Furthermore, it has been held that the President is vested with the discretion to determine when there is a real and genuine recess.  See Evans v. Stephens, 387 F.3d 1220, 1222 (11th Cir. 2004), cert. denied, 544 U.S 942 (2005).  The RAC has been interpreted to allow the president to make a recess appointment when the Senate takes a break of at least a few days. See id.  387 F.3d at 1224 (a ten or eleven day break in the Senate’s session is of sufficient duration to permit recess appointments).  Furthermore, according to a 1905 Senate Report, the Senate is in “recess” whenever the Senate is not sitting in regular or extraordinary session, when its members owe no duty of attendance, when the Chamber is empty, when it cannot receive communications from the President, or when it cannot participate as a body in making appointments.  The Senate here explicitly agreed that no business was to be conducted during the pro forma sessions absent unanimous consent, and the Senate Chamber sat empty.  President Obama, therefore, reasonably determined the Senate was in recess.

The court departed from this long-standing understanding of the term “the Recess.”  Rather, the court held that the Constitution refers only to ”the” recess of the Senate, which can only mean the recess between sessions, and does not apply to intrasession recesses such as the one taken here.  This directly contradicts the 11th Circuit’s decision in Evans v. Stephens, which held that the RAC may be invoked during intrasession recesses as well.  387 F.3d at 1224.  With this split, it seems inevitable that the Supreme Court will have to take this issue up.  In the meantime, only the D.C. Circuit, with its tortured grammatical reading of the RAC, would strip the President of his prerogative to assure the proper functioning of government during the Senate’s absence.

What makes this case particularly difficult to accept is that the court held that the Board’s decision finding the employer guilty of violating the Act was indeed supported by substantial evidence.  (The employer here was found to have violated the Act when it refused to execute the collective bargaining agreement containing terms agreed to by the parties.)  Noel Canning is a bad actor getting away with its bad act by taking advantage of a partisan recess appointment controversy. 

Noel Canning, A Division of the Noel Corporation, Petitioner v. National Labor Relations Board,  No. 12-1115, United States Court of Appeals for the District of Columbia Argued December 5, 2012; Decided January 25, 2013.

Posted on February 7, 2013 .