Yesterday, in NLRB v. New Vista Nursing and Rehabilitation, the U.S. Court of Appeals for the Third Circuit became the second circuit to hold that intrasession recess appointments violate the Recess Appointments Clause (RAC) of the U.S. Constitution. The potential impact of these decisions cannot be overstated, given that they raise questions not only about the constitutionality of such appointments to the National Labor Relations Board (NLRB), but also to any other federal agency or federal position.

Earlier this year, the U.S. Court of Appeals for the D.C. Circuit issued its controversial ruling in Noel Canning v. NLRB, concluding that President Obama acted unconstitutionally when he made three “recess” appointments to the NLRB. As noted previously, if upheld by the Supreme Court (which is considering the NLRB’s petition for certiorari), Noel Canning will invalidate the hundreds of Board decisions in which the three appointees participated.

In New Vista, the Third Circuit has reached a similar conclusion concerning a 2010 NLRB recess appointment. New Vista involved the appointment of former Board member Craig Becker, which was opposed by the business community. Mr. Becker’s tenure was marked by continued controversy and union-friendly rulings. Like the other three appointees, Mr. Becker was appointed during an intrasession recess of the Senate.

On August 26, 2011, Mr. Becker was part of an NLRB panel that issued its decision against New Vista. That decision was appealed to the Third Circuit. There, essentially adopting the reasoning of Noel Canning, a divided panel concluded that the words “the Recess" in the RAC refers only to an intersession recess of Congress, and not to an intrasession recess. Like the D.C. Circuit, the Third Circuit majority relied upon historical evidence of the framers’ intent in drafting the RAC. 

President Obama’s January 2012 recess appointments had been challenged because they were made during a period when the Senate was holding pro forma sessions every few days in an effort to forestall recess appointments. Opponents to the appointments noted that the Senate had not formally adjourned at the time they were made.

In contrast, the Becker appointment did not raise any such issues when it was made as it occurred during a 17-day formal Senate recess. Ten days has generally been the accepted cutoff in defining a “Recess” in which to support an appointment. Relying on this generic rule, presidents have been making recess appointments during similar breaks for almost 100 years. 

Noel Canning and New Vista now call into question the constitutionality of all intrasession recess appointments. These constitutional issues are not limited to labor law, or merely to the constitutionality of an intrasession recess appointment itself, as both decisions have created grounds to challenge the precedential value and enforceability of any previous decisions in which a recess appointee has participated. 

The constitutionality of recess appointments is far from being resolved. The NLRB has petitioned for Supreme Court review of the Noel Canning decision and can be expected to do the same for the New Vista decision. Challenges to recess appointments are pending in other circuits as well. In addition, Republicans in the Senate and the House of Representatives, focusing on the labor law implications, have introduced bills seeking to prohibit the NLRB from taking any action that requires a quorum of Board members until at least three members are confirmed by the Senate or until the U.S. Supreme Court weighs in on the legitimacy of President Obama’s recess appointments.

Ballard Spahr’s Labor and Employment Group routinely assists employers with NLRB compliance. If you have questions or concerns about the recess appointments or other NLRB issues, please contact Denise M. Keyser at or 856.761.3442.

Copyright © 2013 by Ballard Spahr LLP.
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