On November 15, 2013, in Ambassador Services, Inc. v. NLRB, the US Court of Appeals for the Eleventh Circuit issued an unpublished opinion enforcing the NLRB's orders despite the employer's assertion that the panel (Board) heading the NLRB's judicial functions was comprised of invalidly appointed members, depriving it of the quorum necessary to issue decisions under the NLRA.

The Eleventh Circuit joined the US Courts of Appeals for the District of Columbia, Fourth, Sixth and Eighth Circuits in determining that challenges to recess appointments to the Board are non-jurisdictional and therefore can be waived. These holdings conflict with the holding of the US Court of Appeals for the Third Circuit (see Legal Update, Eighth Circuit Joins One Circuit Split and Creates Another, Holds Employer's Challenge to NLRB Recess Appointments is Nonjurisdictional and Waived.)

Unlike the other circuits considering this type of employer argument, the Eleventh Circuit found that the employer preserved its argument, but summarily dismissed the argument as lacking merit. The Eleventh Circuit relied on precedent where it held that an intrasession recess appointment of a federal judge was not constitutionally invalid and should not disqualify the judge from exercising jurisdiction over a matter (Evans v. Stephens).

The Eleventh Circuit: