United States Court of Appeals, District of Columbia Circuit
MATHEW ENTERPRISE, INC., DOING BUSINESS AS STEVENS CREEK CHRYSLER JEEP DODGE, PETITIONER
NATIONAL LABOR RELATIONS BOARD, RESPONDENT, INTERNATIONAL ASSOCIATION OF MACHINISTS & AEROSPACE WORKERS, AFL-CIO, LOCAL LODGE 1101, INTERVENOR
On Motions to Lift Abeyance and Issue Mandate.
Linda Dreeben, Deputy Associate General Counsel, National Labor Relations Board, filed the motion to lift abeyance and to issue the mandate and the reply thereto for respondent.
David A. Rosenfeld and Caren P. Sencer filed the motion to issue the mandate and the reply thereto for intervenor International Association of Machinists & Aerospace Workers, AFL-CIO, Local Lodge 1101.
Daniel T. Berkley and Charles O. Zuver, Jr. filed the response for petitioner.
Before: GARLAND, Chief Judge, KAVANAUGH, Circuit Judge, and WILLIAMS, Senior Circuit Judge. OPINION filed by Circuit Judge KAVANAUGH.
Kavanaugh, Circuit Judge
Mathew Enterprise has raised a Recess Appointments Clause challenge to the National Labor Relations Board's order in this case. Based on the Supreme Court's recent decision in National Labor Relations Board v. Noel Canning, 134 S.Ct. 2550, 189 L.Ed.2d 538 (2014), we reject Mathew Enterprise's claim.
The National Labor Relations Board is an independent federal agency. By statute, the Board consists of five members. See 29 U.S.C. § 153(a). The Board members are principal officers of the United States who must be appointed by the President with the advice and consent of the Senate, or appointed by the President alone during " the Recess" of the Senate. See U.S. Const., art. II, § 2, cl. 2, 3.
To exercise authority in a given case, a Board panel must include at least three validly appointed members. See 29 U.S.C. § 153(b); New Process Steel, L.P. v. National Labor Relations Board, 560 U.S. 674, 683, 130 S.Ct. 2635, 177 L.Ed.2d 162 (2010). A panel of three Board members decided petitioner Mathew Enterprise's case. But Mathew Enterprise argues tat one of those three Board members, Craig Becker, was appointed by the President without either Senate consent or compliance with the Recess Appointments Clause. If Member Becker was indeed unlawfully appointed, then a panel of only two validly appointed members exercised authority in this case, in violation of the law that requires three members for a panel. See New Process Steel, 560 U.S. at 683.
President Obama appointed Member Becker by recess appointment on March 27, 2010, during an intra-session Senate recess of 17 days. See 156 Cong. Rec. S2,180 (daily ed. Mar. 26, 2010) (opening Senate recess); 156 Cong. Rec. S2,181 (daily ed. Apr. 12, 2010) (closing Senate recess). Mathew Enterprise contends that the 17-day recess was too short to permit a recess appointment. Based on the Supreme Court's recent decision in Noel Canning, we disagree with Mathew Enterprise. We conclude that the President's recess appointment of Member Becker was constitutionally valid.
As interpreted by the Supreme Court in Noel Canning, the Recess Appointments Clause permits the President to " fill any existing vacancy during any recess -- intra-session or inter-session -- of sufficient length." Noel Canning, 134 S.Ct. at 2577; see also 134 S.Ct. at 2561 (Recess Appointments Clause applies to intra-session recesses of " substantial length" ). Under Noel Canning, therefore, the fact that Member Becker's recess appointment occurred during an intra-session (rather than inter-session) Senate recess does not affect the validity of the appointment. Likewise, the fact that the vacancy arose before (rather than during) the recess in which the President appointed Member Becker does not affect the validity of the appointment. See Noel Canning, 134 S.Ct. at 2567. The only question is whether the 17-day recess was " of sufficient length."
The Supreme Court's opinion in Noel Canning establishes that a recess of 10 or more days suffices under ...