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Another Circuit Invalidates Obama's NLRB Recess Appointments

The Third Circuit boldly went where the D.C. Circuit had gone before, and invalidated President Obama’s intrasession recess appointment to the National Labor Relations Board.

In doing so, they also invalidated the board’s pro-union ruling in New Vista, and shed doubt on all of the NLRB’s decisions since the disputed appointment of Craig Becker in March 2010 (he stepped down in 2012). As the Wall Street Journal notes, this is a greater time period, and therefore more decisions in jeopardy, than the appointments axed by the D.C. Circuit’s opinion in Noel Canning.

It also presumably adds additional urgency to the pending writ for certiorari to the Supreme Court in the appeal of the D.C. Circuit’s landmark ruling.

According to Reuters, the Third's 102-page opinion drew heavily on the D.C. Circuit's work in Noel Canning, as well as original source material from the days of the founding fathers, including the writings of Thomas Jefferson, the Federalist Papers, and colonial-era state constitutions. Denise Keyser, an attorney at Ballard Spahr, told Reuters that the court's methodology seemed to have been formed with the current Supreme Court justices in mind -- especially the conservative members.

Intrasession or Intersession?

The president has the power to make appointments during "the recess of the Senate." However, the D.C. Circuit, and now the Third Circuit, both agreed that there is a difference between intrasession and intersession appointments, and only the latter are valid. Intracession breaks are brief and happen while the Senate is still technically in session. Intercession breaks are longer, and occur after an enumerated session of the Senate.

Invalid Appointment Means No Quorum

Just as a panel of an appeals court requires a certain number of judges, and the Senate requires a quorum of members to hold a vote, the NLRB is required to have a certain number (three) of board members present to make a ruling. Invalidated appointments mean no quorum and no valid ruling.

Practical Effect for Your Company

Has your company received an unfavorable ruling from the NLRB in the past few years? You might have just received a do-over. Though it will likely take some time (and maybe a Supreme Court case) for this process to shake out, with two circuits both holding that Obama's appointments were unconstitutional and invalid, that makes it even more likely that every single affected case (the Wall Street Journal estimates around 1,200) will have to be reheard.

Even if you haven't received an unfavorable ruling, one has to imagine that 1,200 rehearings are going to create quite the backlog.

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