D.C. Court of Appeals Rules NLRB Recess Appointments Were Unconstitutional; Calls into Question Hundreds of Decisions Issued Last Year

by Franczek Radelet P.C.

The U.S. Court of Appeals for the D.C. Circuit ruled this morning that President Barack Obama’s January 2012 recess appointments of Members Richard Griffin, Terrence Flynn (who has since resigned), and Sharon Block to the National Labor Relations Board were unconstitutional because they did not occur during an intersession recess of the Senate. Without those three members, the court held that the Board did not have a quorum and could not act lawfully. If the court’s ruling stands, it would invalidate all the decisions made by the NLRB since Member Becker’s term ended on January 3, 2012. It also would leave the NLRB with just one validly appointed member.

In today’s decision, a three-judge panel of the court overturned the NLRB’s decision finding that Noel Canning, a contract canning and bottling facility based in Yakima, Washington, had violated the National Labor Relations Act. The court’s decision calls into question hundreds of NLRB decisions issued last year after the January 4, 2012, appointments, including some of the high profile decisions we have highlighted including those involving “micro-units,” dues checkoff, and jurisdiction over charter schools.

Noel Canning petitioned the D.C. Circuit to review the NLRB’s decision that the company had refused to execute a collective bargaining agreement reached with the Teamsters union. The NLRB had issued that decision after President Obama made his recess appointments.  In addition to challenging the merits of the decision, Noel Canning argued that the NLRB did not have a quorum because Members Griffin, Flynn, and Block were never validly appointed. Joined in support by 41 Republican Senators who had objected to the recess appointments, Noel Canning argued that the three members filled vacancies that did not happen during a “Recess of the Senate,” as Article II, Section 2 of the Constitution requires. Citing the Supreme Court’s decision in New Process Steel invalidating decisions issued by the so-called “two-member” Board, and numerous historical documents, the court agreed that the recess appointments were invalid, leaving the NLRB without a quorum, and vacated the Noel Canning decision.

The D.C. Circuit decided two important issues in today’s order. First, the court ruled that “the Recess of the Senate” mentioned in the Constitution is limited to intersession recesses only. The court rejected the NLRB’s arguments that President Obama acted properly because the Senate was in recess on January 4, 2012. The court ruled that the Senate had technically stayed in session when it conducted pro forma sessions every three days from late December 2011 through early January 2012. As examples of Senate actions during those sessions, the D.C. Circuit cited the Senate’s passage of a temporary payroll tax cut extension in late December, and its Constitutionally-required convening of the second session of the 112th Congress on January 3. Since President Obama made his three appointments to the Board on January 4, 2012, the day after Congress began its new session, the court found that the appointments “were invalid from their inception.” Since the Board lacked a quorum of three members when it issued its Noel Canning decision, the court vacated the decision.

Second, the court explained that the appointments were also invalid because the purported vacancies did not “happen” during a Senate recess. The Constitution’s Recess Appointments Clause only permits Presidents to fill “Vacancies that may happen during the Recess of the Senate.” The court reasoned that this required the vacancies to actually occur during the recess, rebuffing the NLRB’s argument that the Clause would apply to vacancies whenever they happened, provided that they still existed during a recess.

The Obama administration had also pointed to an opinion from the President’s own Office of Legal Counsel, which determined that a President had the power to determine when the Senate was in session. The court strongly rejected that argument, finding that “[a]llowing the President to define the scope of his own appointments power would eviscerate the Constitution’s separation of powers.” The court’s sweeping decision could raise questions about President Obama’s recess appointment of Richard Cordray to lead the Consumer Financial Protection Bureau, which other groups have challenged in a separate case.

The D.C. Circuit devoted several pages of its opinion to disagreements with other appellate courts on both of the important issues it decided. The differences over the meaning of “Recess,” and whether vacancies must actually happen, or can simply exist, during one, could serve as grounds for the Obama administration to seek review by the Supreme Court. The administration is expected to appeal the D.C. Circuit’s decision. We expect further developments in the case, and will monitor the NLRB’s position on this issue and provide further guidance as appropriate.

More Information

Written by:

Franczek Radelet P.C.

Franczek Radelet P.C. on:

Readers' Choice 2017
Reporters on Deadline

"My best business intelligence, in one easy email…"

Your first step to building a free, personalized, morning email brief covering pertinent authors and topics on JD Supra:
Sign up using*

Already signed up? Log in here

*By using the service, you signify your acceptance of JD Supra's Privacy Policy.
Custom Email Digest
Privacy Policy (Updated: October 8, 2015):

JD Supra provides users with access to its legal industry publishing services (the "Service") through its website (the "Website") as well as through other sources. Our policies with regard to data collection and use of personal information of users of the Service, regardless of the manner in which users access the Service, and visitors to the Website are set forth in this statement ("Policy"). By using the Service, you signify your acceptance of this Policy.

Information Collection and Use by JD Supra

JD Supra collects users' names, companies, titles, e-mail address and industry. JD Supra also tracks the pages that users visit, logs IP addresses and aggregates non-personally identifiable user data and browser type. This data is gathered using cookies and other technologies.

The information and data collected is used to authenticate users and to send notifications relating to the Service, including email alerts to which users have subscribed; to manage the Service and Website, to improve the Service and to customize the user's experience. This information is also provided to the authors of the content to give them insight into their readership and help them to improve their content, so that it is most useful for our users.

JD Supra does not sell, rent or otherwise provide your details to third parties, other than to the authors of the content on JD Supra.

If you prefer not to enable cookies, you may change your browser settings to disable cookies; however, please note that rejecting cookies while visiting the Website may result in certain parts of the Website not operating correctly or as efficiently as if cookies were allowed.

Email Choice/Opt-out

Users who opt in to receive emails may choose to no longer receive e-mail updates and newsletters by selecting the "opt-out of future email" option in the email they receive from JD Supra or in their JD Supra account management screen.


JD Supra takes reasonable precautions to insure that user information is kept private. We restrict access to user information to those individuals who reasonably need access to perform their job functions, such as our third party email service, customer service personnel and technical staff. However, please note that no method of transmitting or storing data is completely secure and we cannot guarantee the security of user information. Unauthorized entry or use, hardware or software failure, and other factors may compromise the security of user information at any time.

If you have reason to believe that your interaction with us is no longer secure, you must immediately notify us of the problem by contacting us at info@jdsupra.com. In the unlikely event that we believe that the security of your user information in our possession or control may have been compromised, we may seek to notify you of that development and, if so, will endeavor to do so as promptly as practicable under the circumstances.

Sharing and Disclosure of Information JD Supra Collects

Except as otherwise described in this privacy statement, JD Supra will not disclose personal information to any third party unless we believe that disclosure is necessary to: (1) comply with applicable laws; (2) respond to governmental inquiries or requests; (3) comply with valid legal process; (4) protect the rights, privacy, safety or property of JD Supra, users of the Service, Website visitors or the public; (5) permit us to pursue available remedies or limit the damages that we may sustain; and (6) enforce our Terms & Conditions of Use.

In the event there is a change in the corporate structure of JD Supra such as, but not limited to, merger, consolidation, sale, liquidation or transfer of substantial assets, JD Supra may, in its sole discretion, transfer, sell or assign information collected on and through the Service to one or more affiliated or unaffiliated third parties.

Links to Other Websites

This Website and the Service may contain links to other websites. The operator of such other websites may collect information about you, including through cookies or other technologies. If you are using the Service through the Website and link to another site, you will leave the Website and this Policy will not apply to your use of and activity on those other sites. We encourage you to read the legal notices posted on those sites, including their privacy policies. We shall have no responsibility or liability for your visitation to, and the data collection and use practices of, such other sites. This Policy applies solely to the information collected in connection with your use of this Website and does not apply to any practices conducted offline or in connection with any other websites.

Changes in Our Privacy Policy

We reserve the right to change this Policy at any time. Please refer to the date at the top of this page to determine when this Policy was last revised. Any changes to our privacy policy will become effective upon posting of the revised policy on the Website. By continuing to use the Service or Website following such changes, you will be deemed to have agreed to such changes. If you do not agree with the terms of this Policy, as it may be amended from time to time, in whole or part, please do not continue using the Service or the Website.

Contacting JD Supra

If you have any questions about this privacy statement, the practices of this site, your dealings with this Web site, or if you would like to change any of the information you have provided to us, please contact us at: info@jdsupra.com.

- hide
*With LinkedIn, you don't need to create a separate login to manage your free JD Supra account, and we can make suggestions based on your needs and interests. We will not post anything on LinkedIn in your name. Or, sign up using your email address.