The Third Circuit Rules President Obama's 2010 NLRB Recess Appointment Was Invalid

30 May 2013 Dashboard Insights Blog

Dealing yet another blow to the National Labor Relations Board (“NLRB” or “Board”), on May 16, 2013, the Third Circuit Court of Appeals ruled that President Obama’s 2010 recess appointment of Craig Becker to the NLRB was invalid. The case is NLRB v. New Vista Nursing & Rehabilitation, Case Nos. 11-3440, 12-1027 and 12-1936. The Third Circuit agreed with the D.C. Circuit Court of Appeals’ decision in Noel Canning, which invalidated the President’s 2012 appointments of Sharon Block and Richard Griffin. 

The Third Circuit invalidated Becker’s appointment on constitutional grounds, holding that the President’s authority under the Constitution to make recess appointments is limited to breaks between sessions of the Senate when the Senate is by definition not in session and therefore unavailable, i.e., intersession breaks. Thus, because Becker’s appointment was not during an intersession break and, therefore, invalid, the NLRB lacked the requisite number of members (three) to exercise Board authority. 

Adding further uncertainty of the NLRB’s authority to function following Noel Canning, the invalidation of Becker’s appointment in New Vista Nursing calls into question numerous Board decisions dating back to March, 2010.

The NLRB is seeking review of the Noel Cannon decision by the U.S. Supreme Court. In the meantime, however, the New Vista Nursing and Noel Canning decisions open the door for challenges to the validity of the NLRB’s decisions rendered since March, 2010, and any decision rendered in the interim, until this issue is hopefully resolved by the Supreme Court.

This blog is made available by Foley & Lardner LLP (“Foley” or “the Firm”) for informational purposes only. It is not meant to convey the Firm’s legal position on behalf of any client, nor is it intended to convey specific legal advice. Any opinions expressed in this article do not necessarily reflect the views of Foley & Lardner LLP, its partners, or its clients. Accordingly, do not act upon this information without seeking counsel from a licensed attorney. This blog is not intended to create, and receipt of it does not constitute, an attorney-client relationship. Communicating with Foley through this website by email, blog post, or otherwise, does not create an attorney-client relationship for any legal matter. Therefore, any communication or material you transmit to Foley through this blog, whether by email, blog post or any other manner, will not be treated as confidential or proprietary. The information on this blog is published “AS IS” and is not guaranteed to be complete, accurate, and or up-to-date. Foley makes no representations or warranties of any kind, express or implied, as to the operation or content of the site. Foley expressly disclaims all other guarantees, warranties, conditions and representations of any kind, either express or implied, whether arising under any statute, law, commercial use or otherwise, including implied warranties of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Foley or any of its partners, officers, employees, agents or affiliates be liable, directly or indirectly, under any theory of law (contract, tort, negligence or otherwise), to you or anyone else, for any claims, losses or damages, direct, indirect special, incidental, punitive or consequential, resulting from or occasioned by the creation, use of or reliance on this site (including information and other content) or any third party websites or the information, resources or material accessed through any such websites. In some jurisdictions, the contents of this blog may be considered Attorney Advertising. If applicable, please note that prior results do not guarantee a similar outcome. Photographs are for dramatization purposes only and may include models. Likenesses do not necessarily imply current client, partnership or employee status.

Related Services

Insights

PATH Summit 2019
18-20 December 2019
Arlington, VA
MedTech Impact Expo & Conference
13-15 December 2019
Las Vegas, NV
Review of 2020 Medicare Changes for Telehealth
11 December 2019
Member Call
BRG Healthcare Leadership Conference
06 December 2019
Washington, D.C.