The United States Court of Appeals for the Third Circuit has held that the President’s recess appointment power is limited to intersession recesses, i.e., those recesses which occur (if they occur at all) between sessions of the Congress. In so doing, it held the March, 2010 recess appointment of former NLRB member Craig Becker to be invalid, and vacated a decision issued by a three member panel in which he participated. National Labor Relations Board v. New Vista Nursing and Rehabilitation, Case Nos. 11-3440, 12-1027, 12-1936 (May 16, 2013).
The Third Circuit agreed with the DC Circuit’s earlier decision in Noel Canning, on the intersession versus intrasession recess issue, and did not reach the issue of when the vacancy for which the appointment was made needs to have arisen. (The DC Circuit had held that the vacancy must also arise during an intersession recess.)
Theoretically, the Third Circuit’s decision could be applied to all decisions by three member panels on which former Member Becker served. However, because many of those decisions may be closed, it is difficult to determine what the effective reach of the Third Circuit’s decision may be. Although the earlier DC Circuit decision in Noel Canning involved only the members of the current Board (Member Block and Member Griffin), its rationale also applies equally to Member Becker (and other former intrasession recess appointees). Earlier this year, following its issuance of the Noel Canning decision, the DC Circuit ordered a case challenging a rule making in which Member Becker participated held in abeyance.
It is now clear that orders and other actions of the Board which do not involve at least three valid members acting, are subject to rejection by the DC Circuit and the Third Circuit. It is not yet known whether the Third Circuit will follow the DC Circuit in holding all further cases presenting the issue in abeyance pending the outcome of the government’s petition for Supreme Court review in the Noel Canning case. It is also unknown at this time whether the NLRB will either seek reconsideration or Supreme Court review of the New Vista decision, or whether it will alter its policy of continuing to issue decisions in the face of this new adverse decision on the recess appointment issue.