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Media Alerts - Noel Canning v. NLRB - D.C. Circuit
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January 25, 2013
  Noel Canning v. NLRB - D.C. Circuit
Headline: Splitting with Sister Circuits, the D.C. Circuit Holds Intrasession Recess Appointments of Three NLRB Members Unconstitutional

Area of Law: Constitutional law, separation of powers

Issue Presented: Whether the appointments of three NLRB members were valid under the Recess Appointment Clause in Article II of the Constitution.

Brief Summary: Petitioner, a bottler and distributor of Pepsi-Cola products, appealed a ruling by the National Labor Relations Board (NLRB) deciding that the company had violated Section 8(a)(1) and (5) of the National Labor Relations Act (NLRA). Petitioner challenged the Board's conclusion and in the alternative argued that the NLRB lacked authority to act because it did not have a quorum. Three members of the five-member board were appointed on January 4, 2012 under the Recess Appointment Clause of the Constitution while the Senate was meeting in pro forma sessions.

The U.S. Court of Appeals for the District of Columbia Circuit held that the appointments did not occur while the Senate was actually in "recess" and that the vacancies did not "happen" while the Senate was in recess. Looking at the language, purpose, and structure of the Constitution and historical practice since its ratification, the court interpreted the term "Recess" to mean time when the Senate is not in session and rejected the government's position that "Recess" includes short breaks taken during a session. In so concluding, the D.C. Circuit disagreed with the Eleventh Circuit's holding in Evans v. Stephens. The court also interpreted the term "happen" to mean "arise" during a recess, rather than merely "exist" during a recess, parting company with the Eleventh, Ninth, and Second Circuits in Evans, United States v. Woodley, and United States v. Allocco, respectively. Because the appointments were invalid, a quorum never existed, and the D.C. Circuit vacated the NLRB's ruling.

Judge Griffith wrote separately, reasoning that, because the case was resolved under the first constitutional argument, it was not necessary to address the meaning of "happen."

The full text of the opinion can be viewed at

Significance: This issue is almost certain to go before the U.S. Supreme Court in the next term.

Panel: Sentelle, Henderson, and Griffith

Argument Date: December 5, 2012

Date of Issued Opinion: January 25, 2013

Docket Number: No. 12-1115, consolidated with 12-1153

Decided: Reversed

Case Alert Author: Joseph Maher

Counsel (if known): Noel J. Francisco, G. Roger King, James M. Burnham, and Gary E. Lofland for Petitioners. Beth S. Brinkmann, Elizabeth A. Heaney, Stuart F. Delery, Scott R. McIntosh, Sarang V. Damle, Melissa N. Patterson, Benjamin M. Schulz, John H. Ferguson, Linda Dreeben, and Jill A. Griffin for Respondents.

Author of Opinion:
Sentelle, Griffith concurring.

Case Alert Circuit Supervisor: Elizabeth Beske/Ripple Weistling

Edited: 01/28/2013 at 09:30 AM by Media Alerts Moderator

    Posted By: Ripple Weistling @ 01/25/2013 02:21 PM     DC Circuit  

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