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January 2013

On January 25, 2013, the Court of Appeals for the D.C. Circuit unanimously ruled that President Obama’s attempt to appoint three members to the National Labor Relations Board in January, 2012 as “recess” appointees violated the U. S. Constitution because the Senate was not in recess when the appointments were made. (Noel Canning, a division of The Noel Corporation v. National Labor Relations Board, No. 12-1115.) This decision invalidates the attempt to avoid the Senate confirmation process by purported recess appointments of Board members Sharon Block, Richard Griffin and Terence Flynn. It also potentially puts all Board actions taken since January 3, 2012 in legal jeopardy.

The appeals court has delayed issuance of its mandate (i.e., enforcement) of the decision until seven days after disposition of any request for a rehearing.

The ruling would leave the Board with only one validly appointed member, Chairman Mark Gaston Pierce, and his term of office ends in August, 2013. In a statement issued after the decision was announced, the Board said that it will “continue to perform our statutory duties and issue decisions” pending outcome of the certain appeals in the case. However, without a quorum (at least three validly appointed members), the Board is without the legal authority to act or make decisions. Effectively, this decision would shut down the NLRB until such time as a constitutionally-appointed quorum of members can be established or the decision is modified or reversed.

The court was reviewing an NLRB decision that employer Noel Canning violated the National Labor Relations Act. That decision was issued on February 8, 2012, by three Board members, two of whom (Block and Flynn) were unlawfully appointed by the President, according to the court’s ruling.

In voiding the putative “recess” appointments, the court declared on a 3-0 vote:

“[T]he President made his three appointments to the Board on January 4, 2012, after Congress began a new session on January 3 and while that new session continued. Considering the text, history and structure of the Constitution, these appoints were invalid from their inception. Because the Board lacked a quorum of three members when it issued its decision in this case on February 8, 2012, its decision must be vacated.”

A request for review of this decision by the U.S. Supreme Court is likely and further maneuvering by the government in the appeals court is a possibility.

Consequences of the Decision and Next Steps:

All decisions the Board made during the time that the court has ruled they lacked the required quorum are now subject to challenge pending the outcome of appeals, and although the Board has announced its intention to continue acting despite the court ruling, they do so under a “cloud” and all decisions made subsequent to the decision will similarly be subject to challenge.

The Board has already announced its intention to appeal the decision of the D.C. Circuit, and they can do so by requesting the three-judge panel to rehear the case, requesting an en banc review by all of the judges in the D.C. Circuit, or by appealing directly to the Supreme Court.

Appellate rules set deadlines, generally 45 days from the judgment, for filing petitions for rehearing, but there are generally no time limits within which the appellate court must rule on the petition. The deadline for requesting Supreme Court review (petition for certiorari) is 90 days after entry of judgment in the court of appeals; but if a petition for review is timely filed in the appeals court the 90 days runs from the date of the denial of rehearing, or if rehearing is granted, the subsequent entry of judgment. A Justice can extend the 90 day limit by up to 60 days. There is no time limit within which the Supreme Court must rule on a petition for certiorari.

The Board has not announced what appeal route they will take, but all of the appeals processes take significant time, and the final outcome of any appeal would most likely not occur until late this year at the earliest.