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Media Alerts - National Labor Relations Board v. New Vista Nursing and Rehabilitation - Third Circuit
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May 20, 2013
  National Labor Relations Board v. New Vista Nursing and Rehabilitation - Third Circuit
Headline: Third Circuit Holds Obama Recess Appointments to NLRB Unconstitutional

Area of Law: Labor Law; Constitutional Law

Issues Presented: Does Article II's recess appointments clause allow the President to make recess appointments when the Senate holds pro-forma sessions or when the Senate adjourns for a period of two weeks?

Brief Summary: New Vista Nursing and Rehabilitation challenged the NLRB's decision finding an unfair labor practice when New Vista refused to bargain with the elected union representatives. On petition for review the Third Circuit reversed the decision of the Board. Reviewing the decision of the Board, the Third Circuit determined that the Board lacked sufficient members to render its decision. The Third Circuit reached this conclusion after it determined that Member Becker's appointment was an improper recess appointment. The majority opinion determined that only intersession recess appointments satisfy the recess appointments clause of Article II. For this reason, any intrasession recess appointments made by the President are unconstitutional.

Significance (if any): Interpretation of Constitutional issue with major political consequences

Extended Summary:

On January 25, 2011 a union claiming to represent the licensed professional nurses ('LPNs') employed by New Vista filed a certification of collective bargaining representation with the NLRB. New Vista opposed certification of a bargaining representative on the grounds that the LPNs employed by New Vista were supervisory employees who may not unionize under the express terms of the NLRA. After winning the ensuing election, New Vista refused to bargain with the representative union, resulting in an unfair labor charge filed against New Vista. On August 26, 2011, the Board, found New Vista's refusal to bargain to be in violation of the NLRA. The Board's decision is reflected in its order dated and docketed on August 26, 2011 and mailed to the parties on August 27, 2012. After the Board issued its decision, New Vista filed several motions with the Board for reconsideration of its August 26 order. The Board denied each of these motions and petitioned the Third Circuit for enforcement of its August 26, 2011 order. New Vista cross-petitioned the Third Circuit for review of the Board's orders.

The Third Circuit, sua sponte, decided whether or not the composition of the Board on August 26 was a jurisdictional issue subject to challenge at any stage of the litigation. The Third Circuit held the NLRA makes clear that the composition of the Board is a jurisdictional issue. In order to have any authority to issue opinions, the NLRB Board must meet the requirements set forth in the NLRA. Under the NLRA, as interpreted by the Supreme Court in New Process Steel, the Board's composition affects its adjudicatory ability. Accordingly, the Third Circuit held that all challenges to the composition of the Board or panels of the Board are, in fact, jurisdictional, and may be raised by any party, or the court, at any time throughout the litigation.

Given the Court's holding as to the jurisdictional nature of the Board's composition, the Third Circuit next addressed New Vista's various challenges to the Board's composition throughout the proceedings below. First, the Third Circuit addressed New Vista's challenge to the Board's composition and authority to issue the August 26, 2011 order. New Vista had challenged the August 26 order under a theory that, despite its date, the order was not actually issued until August 27, 2011. If the order had actually been issued on August 27, New Vista argued that the Board lacked authority to issue such an order because one of the three members of the Board's panel that issued the order, Chairman Liebman, resigned on August 27, 2011.

The Third Circuit did not find New Vista's argument persuasive, and held that the administrative task of mailing a document on a date later than is listed on the document and/or docket, does not create sufficient doubt to challenge a regularly conducted agency action. Since New Vista did not produce evidence sufficient to rebut the presumption of regularity, the Third Circuit dismissed New Vista's jurisdictional challenge to the August 26 order.

The only remaining jurisdictional challenge to the August 26 order concerned the composition of the panel as it related to Member Becker ('Becker'). President Obama appointed Becker to the Board during a seventeen day (March 26, 2010 through April 12, 2010) intrasession break of the 111th Congress. President Obama's appointment of Becker was ostensibly a recess appointment. However, on review of the August 26 order, Becker's appointment is at issue insofar as without him, the Board lacked a sufficient number of members to issue the August 26 order.

Since Becker's appointment was done without the advice or consent of the Senate, he will be considered a member of the Board only if his appointment was a valid recess appointment under Article II. The Third Circuit first determined that it possessed the ability to determine the meaning of 'recess' as that phrase is used in Article II's recess appointment clause. Over the objection of amicus, the Court first determined that the definition of recess was a justiciable issue for the courts to decide.

Next the Majority opinion compared the various definitions of 'recess' presented by the parties as well as those found in the opinions of other courts of appeal. Picking from amongst these various definitions, the Third Circuit held that 'recess' as that term is to be applied in the recess appointments clause of Article II applies only to intersessional breaks of Congress.

Relying heavily upon the textual and historical usage of the term 'recess of the senate,' as well as historical parallels in state constitutions, the Majority limited the application of the recess appointments clause of Article II only to intersession breaks of the Senate. The majority specifically addressed other potential definitions of recess and held it did not include the broader definition including intrasession breaks or to any time when the Senate is unavailable to provide its advice or consent.

The expansive definition(s) of 'recess' favored by the executive branch follow a historic trend of executive interpretations, as do the limited definitions favored by the legislative branch. However, in choosing between possible alternatives, the majority opinion favored an approach that did not lead to absurd consequences, such as recess appointments that occurred while the Senate was adjourned for lunch. The majority also found persuasive the fact that recess appointments last until the end of the next session of Congress. Accordingly, and in light of the historical and textual analysis undertaken by the majority, the only appropriate definition to be given to 'recess of the Senate' is intersessional recesses and not intrasessional recesses. Since Becker's recess appointment was made during an intrasessional recess, his appointment was not valid and the Board lacked the authority to issue the August 26 order.

In dissent, Judge Greenaway strongly criticized the majority opinion for going far beyond what was necessary to decide this case. In so doing, the majority unnecessarily upset the carefully crafted separation of powers between executive and legislative branches. For Judge Greenaway the term 'recess' applies any time the Senate is unavailable to provide the required advice and consent required under the Constitution. The dissent also disagrees with the majority's characterization of the issues before the Court as being jurisdictional.

The dissent emphasizes the majority's lack of focus on the potential outcomes of its decision. For the dissent, the majority's decision upsets the careful separation of powers envisioned by the framers, as well as the balance of that power between branches. The dissent rebuts the majority's textual and historical analysis of the recess appointments clause. The framers had the ability to require executive appointments such as these to require a full vote in the Senate. They did not do so, and the recess appointments clause is an important check against legislative power.

If the recess appointments clause is to be read as the majority intends, it would not only be contrary to the framer's intent, but also unnecessarily take away an important modern check against Senate inaction. A more practical solution would be for the Senate to remain available to provide its advice and consent to the executive if it does not wish for the executive to utilize this check. However, in light of the majority's decision, the Senate need not ever be available to provide advice and consent so long as the Senate is holding at least pro forma sessions. The executive loses an important check against the legislative. Furthermore, the Senate's pro forma sessions could completely check the executive's ability to fill positions that are necessary.

For these reasons, the dissent would not have found Becker's appointment to be invalid, and would have enforced the August 26 order of the Board. The dissent also would reach the intrasessional recess appointments of other Board members who participated in subsequent denials of New Vista's motions for reconsideration. For the same reasons as for finding Becker's appointment to be valid, the dissent would uphold the Board's ability to issue these decisions.

To read the full opinion, please visit

Panel (if known): Smith, Greenaway, Jr., and Van Antwerpen, Circuit Judges

Argument Date: March 19, 2012

Argument Location: Philadelphia

Date of Issued Opinion: May 16, 2013

Docket Number: No. 11-3440

Decided: Petition for enforcement of Board order denied, Board order of August 26, 2011 vacated.

Case Alert Author: David F. Herman

Counsel: Richard C. Angino, Esq. and Daryl E. Christopher, Esq. for Appellants; Stephen M. Kohn, Esq., for Amicus Curiae National Whistleblowers Center; Michael A. Finio, Esq., Amy C. Foerster, Esq., and Cory S. Winter, Esq. for Appellees; Eugene Scalia, Esq., Counsel for Amicus Curiae Chamber of Commerce of the United States of America

Author of Opinion: Judge Smith, Judge Greenaway, Jr. dissenting.

Circuit: 3rd Circuit

Case Alert Circuit Supervisor:
Susan L. DeJarnatt

    Posted By: Susan DeJarnatt @ 05/20/2013 10:12 AM     3rd Circuit  

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