In a widely expected decision, the Supreme Court announced this morning that it would hear the National Labor Relations Board’s appeal of the D.C. Circuit’s ruling that the recess appointments of Members Richard Griffin, Terrence Flynn (who has since resigned), and Sharon Block to the NLRB were unconstitutional because they did not occur during an intersession recess of the Senate.  As we discussed at the end of January, in Noel Canning, the D.C. Circuit held that without those three members the Board did not have a quorum and could not act lawfully.  The NLRB had announced back in March that it would seek review of the Noel Canning decision directly from the Supreme Court.

Given the high stakes constitutional question of the balance between executive and legislative branch powers, the Supreme Court was expected to hear the NLRB’s challenge.  The Court specifically asked the parties to brief and argue “[w]hether the President’s recess-appointment power may be exercised when the Senate is convening every three days in pro forma sessions.”  The NLRB has not yet appealed the Third Circuit’s related decision in New Vista Nursing and Rehabilitation, where that court found Member Becker’s “intrasession” recess appointment was invalid for reasons similar to those in Noel Canning.  The Third Circuit’s decision was issued on May 16, meaning that the NLRB does not need to make a decision on an appeal to the Supreme Court until August.

The Board also continues to litigate numerous other recess appointments challenges, most notably before the Eleventh Circuit.  The Board filed its main appellate brief in NLRB v. Gaylord Chemical Company, LLC on June 13.  Precedent in the Eleventh Circuit, unlike the D.C. and Third Circuits, may present a better argument in favor of the recess appointments.  In 2004, the Eleventh Circuit held that the “main purpose” of the Recess Appointments Clause is to let presidents fill vacancies to ensure that the federal government can function.  The D.C. Circuit discussed this Eleventh Circuit opinion at length in Noel Canning. The D.C. Circuit reasoned that the Eleventh Circuit had failed to quote the entire passage it cited on the purpose of the Recess Appointments Clause.

We will follow the upcoming Supreme Court briefings closely, particularly the NLRB’s approach to the case.  The Board has not signaled whether it will try to defend the pro forma session appointments, attack the D.C. Circuit’s opinion as overbroad, or both.  We will continue to provide further guidance as appropriate.