January 25, 2013

President's Appointments to the NLRB Vacated, 2012 Board Decisions in Jeopardy

Holland & Knight Alert
Loren Lee Forrest Jr.

Earlier today, the U.S. Court of Appeals for the District of Columbia vacated President Obama's recess appointments to the National Labor Relations Board. The three-judge panel from the D.C. Circuit held that the president could have only made his recess appointments to the Board during a congressional recess when vacancies arose. According to the panel, "The filling up of a vacancy that happens during a recess must be done during the same recess in which the vacancy arose." The court reasoned that a "recess" means only the recess between two sessions of Congress and not an intrasession break such as that occurring in January of 2012, when the president made his appointments.

President Obama appointed Sharon Block, Richard Griffin and Terence Flynn to the Board. Mr. Flynn subsequently resigned from the Board in May of 2012. At that time, there were objections that the Senate remained in session and that the president's recess appointments were, therefore, an improper use of power. The Justice Department countered that the pro forma procedures and sessions being held by the Senate were a sham and the Senate was not actually in session; this meant the Senate could not provide advice or consent on presidential nominations during that period. The D.C. Circuit panel unanimously found that the Senate was technically in session because it was conducting “pro forma” sessions, a tactic that had historically been used to prevent recess appointments.

In response to the D.C. Circuit's decision, the Board issued the following statement: "The Board respectfully disagrees with today’s decision and believes that the President’s position in the matter will ultimately be upheld. It should be noted that this order applies to only one specific case, Noel Canning, and that similar questions have been raised in more than a dozen cases pending in other courts of appeals. In the meantime, the Board has important work to do. The parties who come to us seek and expect careful consideration and resolution of their cases, and for that reason, we will continue to perform our statutory duties and issue decisions."

The Board currently has only one legitimate member who is not affected by the D.C. Circuit's ruling, Chairman Mark Gaston Pearce. Now, without a proper quorum, it cannot issue decisions, at least insofar as the D.C. Circuit is concerned. The Board’s statement quoted above indicates that it will test this ruling by continuing to issue decisions and raising the issue in other judicial circuits. Furthermore, the administration is expected to appeal the D.C. Circuit's ruling to the U.S. Supreme Court. If the Court were to uphold the D.C. Circuit's ruling, it would invalidate all decisions the Board has issued since the invalid appointments were made in January 2012.

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