Today, in a 102-page decision, the Third Circuit Court of Appeals dealt the National Labor Relations Board (NLRB) a significant blow and gave employers another victory in their attempts to have President Obama’s recess appointments to the NLRB invalidated. In NLRB v. New Vista Nursing and Rehabilitation, 12-1936 (May 16, 2013), the court weighed in on the same issues discussed in the D.C. Circuit’s recent decision in Noel Canning v. NLRB, No. 12-1115 (January 25, 2013). Specifically, the Third Circuit looked at whether former Board Member Craig Becker’s appointment was a valid exercise of the president’s recess appointment power. Member Becker was appointed on March 27, 2010, during a true two-week intrasession break. This presented a cleaner question than the one the D.C. Circuit answered in Noel Canning, where the court also had to deal with whether the Senate’s pro forma sessions of December 2011–January 2012 were actually Senate sessions.

Writing for a 2-1 majority, Judge D. Brooks Smith, dismissed New Vista’s non-constitutional arguments for overturning the Board’s decision, clearing the way for a lengthy discussion of constitutional concepts. The court also reviewed jurisdictional questions surrounding the current make-up of the NLRB. The court first held that the National Labor Relations Act’s three-member composition requirement is jurisdictional and must be met before the NLRB can exercise its power over a case. The majority highlighted that because this requirement is jurisdictional, any reason for which the delegee group consists of fewer than three members—including whether one member is invalidly appointed under the Recess Appointments Clause—can be raised by a party or by the court at any point in litigation as a jurisdictional defect.

Next, the court dismissed arguments that it should decline to define “recess” as a nonjusticiable political question. After a review of U.S. Supreme Court and historical precedent, the court determined that the definition of “recess” was not a political question and did not impede the clear powers of one branch of government in relation to another. Instead, the court was faced with defining what “the Recess of the Senate” meant and this was clearly the type of question that falls within the province and the duty of the judiciary, as outlined in Marbury v. Madison.

Once the Third Circuit got to the constitutional question, Judge Smith devoted 70 pages of the opinion reviewing the history of the Recess Appointments Clause and its potential meanings. The clause itself provides that “[t]he President shall have the 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.”

The court next considered three possible meanings of the word “recess,” as advanced by the parties and various courts: (1) As the D.C. Circuit found in Noel Canning, the word possibly meant that the president could use recess appointments only during intersession breaks. (2) As the Eleventh Circuit found in a 2004 Eleventh Circuit case, the word could include intersession breaks as well as intrasession breaks that lasted a non-negligible time period (historically, at least 10 days). (3) As the NLRB advocates, the word “recess” could mean “when the Senate is not open to conduct business” and is thus unavailable to provide advice and consent on nominations. This definition would, according to the NLRB, cover situations like the pro forma sessions held in December 2011January 2012 at issue in Noel Canning.

The Third Circuit agreed that the D.C. Circuit’s interpretation was the correct interpretation of the Recess Appointments Clause, though it did so for different reasons. In Noel Canning, the D.C. Circuit found that the “the” in “the Recess” represented a definite article, and therefore, it meant a specific recess, known in parliamentary language as an adjournment sine die, which is the procedural method by which the Senate ends a session. An intersession break is the period between an adjournment sine die and the start of the next session. As defined, “recess” appointments could only occur during the intersession break.

Additionally, the D.C. Circuit found that the Recess Appointments Clause was a supplemental power to the Appointments Clause, which provides that the president may appoint individuals who must be confirmed by the advice and consent of the Senate. Finally, the court also relied on the historical fact that no president prior to 1867 attempted an intrasession recess appointment and it was used very sparingly until the Reagan administration. The D.C. Circuit also reached another conclusion dealing with whether the vacancy being filled must “happen” during the recess. The Third Circuit chose not to reach that argument, because its determination that “recess” meant only intersession breaks was conclusive.

The Third Circuit was not persuaded with the D.C. Circuit’s arguments concerning the use of the definite article “the” in the language of the U.S. Constitution. The court found that the literal meaning of the word “recess” was open to various interpretations. In reviewing the language of the Constitution, early-American state constitutions, historical precedent of state representatives using recess appointments, 18th century dictionaries, and English/early-American parliamentary procedure, the court could not conclusively define what type of “recess” the framers contemplated. After determining that the literal meaning of the word was of no help, the court moved on to its textual context.

In reviewing the textual context of the clause, the court agreed with the D.C. Circuit and enunciated a key tenet of its decision. The Third Circuit held that the main purpose of the clause was not to “enable the President to fill vacancies to assure the proper functioning of our government” as the Eleventh Circuit had found, but to “preserve the Senate’s advice and consent power by limiting the President’s unilateral appointment power.” Based on this central tenet, the Third Circuit, like the D.C. Circuit found that the Recess Appointments Clause was subordinate to the Appointments Clause and limited the president’s power to make appointments without the advice and consent of the Senate only to situations where the Senate was truly unavailable, i.e. during intersession breaks.

In reviewing the Board’s proposed definition that “recess” meant “when the Senate is not open to conduct business,” the court easily found it unworkable. According to the court, as the Board defined “recess,” any time the Senate was not open to conduct business, such as a lunch break or long weekend, the president could appoint individuals to government positions without the advice and consent of the Senate. This was simply too open-ended for the court and gave the executive branch far more power than the Constitution contemplated.

In reviewing the Eleventh Circuit’s interpretation that “recess” could include intersession and intrasession breaks, the court could not reconcile its own review of the historical facts and interpretation of the founder’s intent with Eleventh Circuit’s interpretation and determination that intrasession appointments were valid. “Under an intrasession definition, the Clause would no longer have an auxiliary role. . . The appointment would continue even though the opportunity to undergo the ordinary, preferred process had come and gone. This shows that when the intrasession definition of recess is combined with the durational provision, a fundamentally different relationship between the clauses is created: the intrasession definition makes the Recess Appointments Clause an additional rather than auxiliary method of appointing officers.”

The plot thickens as other courts, including the Fifth Circuit Court of Appeals, have asked for argument on these issues in pending cases. The U.S. Supreme Court will likely grant certiorari in Noel Canning. The Third Circuit’s interpretation of the clause dovetails with the D.C. Circuit’s, but they are not identical and the different reasoning found within each opinion only highlights the confusion that must be resolved by the Supreme Court in the coming months, lest the National Labor Relations Board grind to a halt. Look for more to come on this case as we further analyze the sizeable opinion and dissent next week.

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The attorneys in Ogletree Deakins’ Traditional Labor Practice Group have vast experience in complex and sophisticated traditional labor law matters. This includes experience advising and representing employers of all sizes and across virtually all industries in connection with union representation campaigns, collective bargaining negotiations, strike preparations, labor arbitrations, and National Labor Relations Board proceedings.

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