The dark cloud that has been hanging over CFPB Director Richard Cordray’s recess appointment just got darker. In a 2-1 decision in NLRB v. New Vista Nursing and Rehabilitation, the U.S. Court of Appeals for the Third Circuit ruled today that, under the U.S. Constitution’s Recess Appointments Clause (RAC), the President may only make recess appointments during an intersession recess. In addition, the Third Circuit rejected the NLRB’s argument that pro forma sessions should be deemed a “recess” (on the theory that “recess” for purposes of the RAC should be read to mean any time the Senate is not open for business and unavailable to provide its advice and consent). While the recess appointment invalidated in New Vista was a 2010 appointment and not the 2012 appointments at issue in Noel Canning, the Third Circuit’s views fully accord with the D.C. Circuit’s determination in Noel Canning v. NLRB.
In its January 2013 Noel Canning decision, the D.C. Circuit ruled that, because the most recent session began on January 3, 2012 and President Obama’s three NLRB appointments were made on January 4 (while the Senate was conducting pro forma sessions), the appointments were not made during a “recess” within the meaning of the RAC. Since the President’s recess appointment of Richard Cordray as CFPB Director was also made on January 4, the D.C. Circuit’s opinion cast serious doubt on the validity of Mr. Cordray’s appointment. By agreeing that recess appointments must be made during an intersession recess to be valid, the Third Circuit has added to that doubt.
On April 25, the NLRB filed a petition for certiorari, asking the Supreme Court to review Noel Canning. The respondent has advised the Court it does not intend to oppose the petition.
We thought the petition for certiorari in Noel Canning had a high probability of success before today’s decision. The panel split in New Vista further increases the likelihood that certiorari will be granted.