D.C. Cir. Says Appointment of NLRB's Becker During 17-Day Recess in 2010 Constitutional

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By Jay-Anne Casuga

Nov. 7 — President Barack Obama's appointment of Craig Becker to the National Labor Relations Board in April 2010 during a 17-day intra-session recess was constitutionally valid, the U.S. Court of Appeals for the District of Columbia Circuit held Nov. 7, meaning the NLRB had a quorum when it subsequently ruled against a California car dealership.

The ruling is the second in the past week to uphold the validity of Becker's April 2010 appointment.

Rejecting Mathew Enterprise Inc.'s contention that the 17-day recess was too short to be valid under the Constitution's Recess Appointments Clause, the D.C. Circuit said the U.S. Supreme Court in NLRB v. Noel Canning, 134 S. Ct. 2550, 199 LRRM 3685 (2014), established that a recess of 10 or more days would suffice under that clause.

“Put simply, Noel Canning means that the president is permitted to make recess appointments during recesses of 10 or more days,” the court said. “Therefore, the president's recess appointment of Member Becker, which occurred during a 17-day Senate recess, was constitutionally valid.”

Given that the NLRB had a quorum when it found in August 2011 that Mathew Enterprise violated the National Labor Relations Act by firing a union activist, the D.C. Circuit lifted an order delaying enforcement of its December 2012 unpublished ruling affirming that NLRB decision.

Judge Brett Kavanaugh wrote the opinion, joined by Judges Merrick B. Garland and Stephen F. Williams.

Recess Appointment Valid Under Noel Canning

According to the court, the Supreme Court in Noel Canning interpreted the Recess Appointments Clause as permitting the president to “fill any existing vacancy during any recess—intra-session or inter-session—of sufficient length.”

In determining sufficient length, the appeals court said, the justices “referred to and heavily relied on the ‘thousands' of recess appointments in the Nation's history, the vast majority of which occurred during recesses of 10 or more days.”

“[I]t is not our place, particularly as a lower court, to impose new limits that would be inconsistent with the historical precedents relied on by the Supreme Court and that the Supreme Court itself did not see fit to impose in its comprehensive Noel Canning opinion,” it said.

The D.C. Circuit observed that the fact that Obama appointed Becker on the first day of what eventually became a 17-day recess doesn't affect the validity of the appointment.

“Consistent with the historical examples that the Supreme Court relied on in Noel Canning, moreover, the lawfulness of a recess appointment depends on the ultimate length of the recess in which the appointment occurred, not the number of days from the start of the recess to the appointment,” the court said.

Fox Rothschild represented Mathew Enterprise. NLRB attorneys represented the board.

To contact the reporter on this story: Jay-Anne B. Casuga in Washington at jcasuga@bna.com

To contact the editor responsible for this story: Susan J. McGolrick at smcgolrick@bna.com

Text of the opinion is available at http://www.bloomberglaw.com/public/document/Mathew_Enterprise_Inc_v_NLRB_Docket_No_1101310_DC_Cir_Sept_06_201.