“Can we duck the [recess appointments] issue?”  That question was asked yesterday by one of the members of the Third Circuit three-judge panel hearing oral argument on the National Labor Relation Board’s application to enforce its order in NLRB v. New Vista Nursing.
New Vista, like the Noel Canning v. NLRB case decided in January 2013 by the D.C. Circuit, involves an employer’s attempt to block enforcement of an NLRB order based on a challenge to President Obama’s January 2012 recess appointments of three members to the NLRB.  We have been following the NLRB cases because of their implications for the President’s contemporaneous recess appointment of Richard Cordray as CFPB Director.

In Canning, the contested NLRB order was entered in February 2012 and the D.C. Circuit held that, because the three recess appointments violated the U.S. Constitution’s Recess Appointments Clause (RAC), the five-member NLRB did not have the quorum of three necessary for it to lawfully take action.  In New Vista, the contested order was entered in August 2011, before the three recess appointments were made.  However, in March 2012, the NLRB entered several orders on a series of motions for reconsideration filed by New Vista.  As a result, the Third Circuit focused a number of its questions on whether it could review the merits of the August order or otherwise dispose of the case without having to reach the validity of the March orders and thereby avoid the recess appointments issue.

The panel consisted of Judge D. Brooks Smith and Judge Franklin S. Van Antwerpen, both appointed by President George W. Bush, and Judge Joseph A. Greenaway, Jr., appointed by President Obama.  While the all-Republican appointee members of the Canning bench reportedly foreshadowed the result of the case through their intensive questioning of the government’s lawyer, the members of New Vista bench were even-handed in their questions about the recess appointments issue.  Although the judges continued their questioning of the Department of Justice’s attorney (who also argued Canning for the DOJ) beyond her allotted time, they sua sponte gave New Vista’s lawyer additional time for rebuttal he had not reserved and used some of that time to ask him more questions.

The RAC authorizes the president to fill vacancies “that may happen during the Recess of the Senate” through appointments that expire at the end of the next session.  The D.C. Circuit held that the words “the Recess” referred only to an intersession recess of Congress, and not to an intrasession recess.  Because the second session of this past Congress began on January 3, 2012, and the NLRB appointments were made on January 4 (while the Senate was conducting pro forma sessions), the D.C. Circuit ruled they were not made during a “recess” within the meaning of the RAC.

The entire Third Circuit panel seemed troubled by the notion that the Senate could use pro forma sessions in lieu of declaring an intersession recess to thwart a President’s recess appointments.  However, the Republican appointees expressed concerned about the lack of a clear “limiting principle” for determining when the Senate is in “recess.”  This was reflected in a question that Judge Green asked to both the DOJ’s attorney and New Vista’s attorney: Which branch of government should define if the Senate is in recess, the Senate or the President?

While their leaning on the “intersession v. intrasession” question was not obvious, the Third Circuit panel did seem very skeptical about the correctness of the D.C. Circuit’s additional holding that to qualify for a recess appointment under the RAC, a vacancy must “happen” (meaning arise) during the intersession recess. (One of the members of the D.C. Circuit panel did not concur in that holding.)

The NLRB has announced that it plans to file a petition for certiorari asking the Supreme Court to review Canning. The petition must be filed by April 25.  The petition’s probability of success (which is already very high) is likely to increase significantly if the Third Circuit were to issue a decision disagreeing with Canning.  In addition, another NLRB recess appointment case is pending in the Fourth Circuit.  Oral argument in Nestle Dreyer’s Ice Cream Company v. NLRB had tentatively been scheduled for this month but an argument date has not been finalized due to scheduling conflicts of the attorneys involved in the case.