Member Becker's Recess Appointment to the NLRB was Valid under Noel Canning: DC Circuit | Practical Law

Member Becker's Recess Appointment to the NLRB was Valid under Noel Canning: DC Circuit | Practical Law

In Mathew Enterprise, Inc. v. NLRB, the United States Court of Appeals for the District of Columbia Circuit held that based on the US Supreme Court plurality's analysis in National Labor Relations Board v. Noel Canning, President Obama's March 27, 2010 intra-session recess appointment of Craig Becker to the National Labor Relations Board (NLRB) was valid under the US Constitution's Recess Appointment Clause. The DC Circuit denied the employer's petition for review of an NLRB decision issued in 2011 that turned on the constitutionality of that appointment.

Member Becker's Recess Appointment to the NLRB was Valid under Noel Canning: DC Circuit

by Practical Law Labor & Employment
Published on 13 Nov 2014 • USA (National/Federal)
In Mathew Enterprise, Inc. v. NLRB, the United States Court of Appeals for the District of Columbia Circuit held that based on the US Supreme Court plurality's analysis in National Labor Relations Board v. Noel Canning, President Obama's March 27, 2010 intra-session recess appointment of Craig Becker to the National Labor Relations Board (NLRB) was valid under the US Constitution's Recess Appointment Clause. The DC Circuit denied the employer's petition for review of an NLRB decision issued in 2011 that turned on the constitutionality of that appointment.
On November 7, 2014, in Mathew Enterprise, Inc. v. NLRB, the United States Court of Appeals for the District of Columbia Circuit held that based on the US Supreme Court's plurality analysis in National Labor Relations Board v. Noel Canning, President Obama's March 27, 2010 intra-session recess appointment of Craig Becker to the NLRB was valid under the US Constitution's Recess Appointment Clause. The DC Circuit denied the employer's petition for review of an NLRB decision issued in 2011 that turned on the constitutionality of that appointment. (No. 11-1310, (D.C. Cir. Nov. 7, 2014).)
Mathew Enterprise, Inc. petitioned for review of a 2011 NLRB decision in which Member Becker participated (see Stevens Creek Chrysler Jeep Dodge, Inc., 357 N.L.R.B. slip op. 57, (Aug. 25, 2011)). Previously, the DC Circuit rejected all of the issues the employer raised in its petition for review except for the employer's recess appointment challenge (Mathew Enterprise, Inc. v. NLRB, 498 Fed. Appx. 45, (Dec. 14, 2012)). The court postponed its decision on that issue while the Supreme Court's interpretation of the Recess Appointments Clause in Noel Canning was pending.
The DC Circuit:
  • Noted that in Noel Canning the Supreme Court:
    • interpreted the Recess Appointments Clause, which allows the president to fill vacancies during a recess of a sufficient length;
    • observed that historically most recess appointments occurred during recesses of ten or more days;
    • established that a recess of ten or more days meets the Recess Appointments Clause's "sufficient time" requirement;
    • held that a recess of four to nine days is presumptively too short;
    • did not construe the Recess Appointments Clause as limiting the President's authority to make appointments during either an intra- or inter-session recess of ten or more days; and
    • held that the length of a recess, and not the number of days into which an appointment occurs, determines the appointment's constitutionality.
      (134 S. Ct. 2550 (2014).)
  • Held, based on Noel Canning, that:
    • the 17-day recess during which President Obama appointed Member Becker to the NLRB was sufficiently long for the appointment to be valid under the Recess Appointments Clause; and
    • the fact that the appointment occurred on the first day of a 17-day recess did not change the validity of the appointment.
The DC Circuit tends to be a bellwether for courts of appeals reviewing the legality and constitutionality of federal agency actions. In light of the DC Circuit's straight-forward application of Noel Canning, employers should be less than optimistic that they could successfully protest NLRB actions during Member Becker's term (April 5, 2010 through January 3, 2012) based solely on challenges to the validity of his appointment.