Three's a Crowd: Third United States Court of Appeals Decision Strikes Down President Obama's January 2012 Recess Appointments

In another groundbreaking decision against the NLRB, the Fourth Circuit has followed the D.C. and Third Circuits' reasoning in Noel Canning and New Vista Nursing and Rehabilitation regarding presidential recess appointments and as a consequence, has found President Obama's January 2012 appointments invalid. In its consolidated opinion, the Court noted the following:

"[W]e agree with the Noel Canning and New Vista Nursing courts that the term 'the Recess,' as used in the Recess Appointments Clause, refers to the legislative break that the Senate takes between its 'Session[s].' In other words, the term 'the Recess' means the intersession period of time between an adjournment sine die and the start of the Senate's next session."

Since the Senate was not truly in a "recess" when President Obama made the appointments at issue, the NLRB lacked a quorum to hand down decisions in Enterprise Leasing Company Southeast LLC and Huntington Ingalls, Inc.

As we previously reported, the Supreme Court of the United States is set to bring some finality to this controversy when it hears NLRB v. Noel Canning. The Court is expected to hear the case in the 2013-2014 term.

The Fourth Circuit's Opinion can be found here.

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