The Third Circuit Court of Appeals joined the D.C. Circuit in invalidating President Obama’s recess appointments to the National Labor Relations Board in a 2-1 decision issued today in NLRB v. New Vista Nursing and Rehabilitation, Case No. 11-3440. The Third Circuit majority held that “‘the Recess of the Senate’ in the Recess Appointments Clause refers to only intersession breaks,” and thus Member Craig Becker did not hold a proper appointment because he was appointed during an intrasession break.

Significantly, the Third Circuit invalidated the Board’s order despite the fact that the Board had a proper quorum of members to act under New Process Steel when the Board issued its decision on August 26, 2011, as there were still three properly confirmed members: Chairman Liebman, Member Pearce, and Member Hayes. Therefore, unlike the D.C. Circuit’s decision in Noel Canning v. NLRB, which focused on the recess appointments of Members Sharon Block and Richard Griffin, the Third Circuit decided sua sponte that the critical issue in New Vista Nursing and Rehabilitation was whether the delegee group of the Board had jurisdiction:

The jurisdictional nature of the three-member-composition requirement is especially important in this case because it requires us to analyze whether Craig Becker—one of the three-member delegee group that decided the August 26 Order—held a valid appointment under the Recess Appointments Clause. This question is distinct from the recess-appointments question initially briefed by the parties….Member Becker was not appointed when the Senate was holding pro forma sessions but, instead, was appointed on March 27, 2010, one day after the Senate “adjourn[ed]” for two weeks.

In deciding whether Becker’s appointment was proper, the court noted that three definitions have been offered regarding the meaning of “the Recess of the Senate”:

The D.C. Circuit defines the term to mean only intersession breaks, which are “the period between sessions of the Senate when the Senate is by definition not in session and therefore unavailable.” Noel Canning, 705 F.3d at 499–500, 506…An intersession break is the period between an adjournment sine die and the start of the next session. …

A second definition, one which the Eleventh Circuit has adopted, is that recess includes intersession breaks as well as some “intrasession” breaks, which are breaks in Senate business during a session. Evans, 387 F.3d at 1224. An intrasession break is demarked by a Senate adjournment of any type—other than adjournment sine die—and lasts until the next time the Senate convenes, which is set by the motion to adjourn….Accordingly, the second definition includes only those intrasession breaks that last for a significant duration, which historically has been ten days or more.

The third and final possible definition [the one the Board advocates] is of more recent vintage. In January 2012, President Barack Obama made several recess appointments while the Senate was holding pro forma sessions every three or four days. These sessions are considered recesses under the third definition.

Citing historical definitions and procedures, the Third Circuit quickly eliminated the Board’s proposed interpretation that the President can make recess appointments “any time in which the Senate is not open for business and is unavailable to provide its advice and consent.” Moreover, the Third Circuit found the Board’s definition problematic because it would be satisfied whenever Senate “members leave for the weekend, go home for the evening, or even take a break for lunch.”

However, the court had to turn to the “broader textual context” to determine whether “recess” means only intersession recesses (the D.C. Circuit’s interpretation) or whether it also included intrasession breaks (the Eleventh Circuit’s interpretation). As we noted in March, the Department of Justice first formally articulated the government’s position regarding Noel Canning in a letter brief to the Third Circuit in New Vista Nursing & Rehabilitation, asserting that the Third Circuit should not follow the D.C. Circuit’s interpretation of the word “the” before “Recess” in the Constitution because it is inconsistent with how “the” is used in other parts of the Constitution. Despite agreeing with the D.C. Circuit’s ultimate holding, the Third Circuit did not rely upon or follow the D.C. Circuit’s interpretation of the word “the”:

There is nothing that shows what “the” means in the Recess Appointments Clause, especially because the Constitution uses “the” in several manners. Accordingly, we are convinced that use of “the” is uninformative.

Instead, the Third Circuit based its decision on the purpose of the Recess Appointment Clause and the fact that “nothing in the Constitution establishes the necessary length of an intrasession break that would constitute a recess.” Specifically, the Third Circuit found that the Recess Appointments Clause is a “secondary, or exceptional, method of appointing officers, while the Appointments Clause provides the primary, or general, method of appointment.” As such, there is “a constitutional preference for divided power over the appointments process, which is deviated from only in specified situations.” Accordingly, the Third Circuit opined that:

The “main purpose” of the Recess Appointments Clause, therefore, is not—as the Eleventh Circuit held and the Board argues—only “to enable the President to fill vacancies to assure the proper functioning of our government.” Evans, 387 F.3d at 1226. This formulation leaves out a crucial aspect of the Clause‘s purpose: to preserve the Senate‘s advice-and-consent power by limiting the president‘s unilateral appointment power.

Moreover, the court noted that:

Although there is no constitutional basis for any sort of durational limit on what constitutes “the Recess,” the Recess Appointments Clause does contain a temporal characteristic: the Recess Appointment Clause‘s specification that recess-appointed officers‘ terms “shall expire at the End of [the Senate‘s] next Session.” … The expiration of these officers’ terms at the end of the next session implies that their appointments were made during a period between sessions.

According to the court, this temporal characteristic only lends credence to the intersession recess interpretation because “[l]imiting the duration to a single opportunity follows from the auxiliary nature of the Clause.” As such, the Eleventh Circuit’s intrasession recess interpretation is inconsistent with the Clause’s auxiliary purpose:

So if recess includes intrasession breaks, then we would expect the recess-appointment term to last only until the end of that session. This is because once the Senate returned from its break there would be an opportunity to undergo the normal process [of advice and consent]. Yet the Constitution provides that the term would last until the end of the next session. This suggests that the durational provision contemplates a meaning of recess that means intersession breaks only.

Accordingly, the court held that “[t]he durational provision thus indicates that the most natural reading of the Clause defines recess to mean intersession breaks only.”

Given that Becker’s recess appointment did not occur during an intersession recess, the majority found it unnecessary, unlike the D.C. Circuit, to interpret the word “happen” in the Recess Appointments Clause.

In his dissent, Justice Greenaway stated that he would hold that “the Recess” refers to both intrasession and intersession recesses because the Senate can be unavailable to provide advice and consent during both:

The availability of the Senate to provide advice and consent is the crux of the Recess Appointments Clause because its operation depends on its complementary interplay with the Appointments Clause, which requires that the Senate be available to provide advice and consent.

Just as in the wake of Noel Canning, the end result remains uncertain. The Board and the Administration have already filed a petition for certiorari for Supreme Court review in Noel Canning, and they are likely to do the same here as this decision affects every Board order issued by a delegee group that included Becker. Accordingly, it remains necessary for practitioners and stakeholders to consider the rationale set forth in those decisions, while we await further, more determinative resolution of the recess appointments issue.