On January 25, 2013, the D.C. Circuit held in Noel Canning v. NLRB, --- F.3d ----, 2013 WL 276024 (D.C. Cir. 2013), that President Obama’s attempted recess appointments of Sharon Block, Terence Flynn and Richard Griffin to the National Labor Relations Board (“NLRB”) in January 2012 were invalid because the Senate was not in “recess” within the meaning of the Recess Appointments Clause of the U.S. Constitution at the time of the appointments. According to the court, “Recess” within the meaning of the Constitution is limited to the recess between sessions of the Senate and therefore the Recess Appointments Clause does not allow appointments during “recesses” or “breaks” in the Senate’s business if it otherwise remains in a continuing session. In reaching this conclusion, the D.C. Circuit explicitly disagreed with the Eleventh Circuit’s decision in Evans in Stephens, 387 F.3d 1220 (11th Cir. 2004), which held that “recess” includes intrasession recesses. Further, the court held that the appointments were invalid because the Recess Appointments Clause only applies to vacancies that “happen” during “the Recess,” and, even if the Senate did go into recess, the Board vacancies filled by the President did not “arise” during such recess. Accordingly, because, pursuant to the Supreme Court’s decision in New Process Steel, L.P. v. NLRB, 130 S.Ct. 2635 (2010), the Board must have a quorum of at least three members in order to act, the court held that the Board’s finding that Noel Canning engaged in an unfair labor practice (as well as all of the other decisions of the Board following the purported appointments) was null and void.

Board Chairman Mark Gaston Pearce responded to the D.C. Circuit’s decision by stating that the Board considers Members Block and Griffin to have been validly appointed (Member Flynn resigned in mid-2012) and will continue to issue decisions: “The Board respectfully disagrees with today’s decision and believes that the President’s position in the matter will ultimately be upheld. It should be noted that this order applies to only one specific case, Noel Canning, and that similar questions have been raised in more than a dozen cases pending in other courts of appeals. In the meantime, the Board has important work to do. The parties who come to us seek and expect careful consideration and resolution of their cases, and for that reason, we will continue to perform our statutory duties and issue decisions.” It is anticipated that the issue addressed in Noel Canning will ultimately be decided by the Supreme Court. In the meantime, President Obama has re-nominated Members Block and Griffin, while a bill has been filed in the Senate that would prevent the board from issuing decisions by prohibiting it from using federal funds for functions that require a quorum of board members.