Mathew Enterprise, Inc v. NLRB

Filing

OPINION filed [1521237] (Pages: 6) for the Court by Judge Kavanaugh [11-1310, 11-1406]

USCA Case #11-1310

Document #1521237

Filed: 11/07/2014

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT

Decided November 7, 2014
No. 11-1310
MATHEW ENTERPRISE, INC., DOING BUSINESS AS STEVENS
CREEK CHRYSLER JEEP DODGE,
PETITIONER
v.
NATIONAL LABOR RELATIONS BOARD,
RESPONDENT
INTERNATIONAL ASSOCIATION OF MACHINISTS & AEROSPACE
WORKERS, AFL-CIO, LOCAL LODGE 1101,
INTERVENOR

Consolidated with 11-1406

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.

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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 for
KAVANAUGH.

the

Court

filed

by

Circuit

Judge

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, No. 12-1281, 134 S. Ct.
2550 (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 (2010). A panel of three
Board members decided petitioner Mathew Enterprise’s case.
But Mathew Enterprise argues that one of those three Board

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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). 1
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, slip op. at
40, 134 S. Ct. at 2577; see also slip op. at 9, 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
1

The length of a Senate recess is “‘ordinarily calculated by
counting the calendar days running from the day after the recess
begins and including the day the recess ends.’” National Labor
Relations Board v. Noel Canning, No. 12-1281, slip op. at 20, 134
S. Ct. 2550, 2566-67 (2014) (quoting Lawfulness of Recess
Appointments During a Recess of the Senate Notwithstanding
Periodic Pro Forma Sessions, 36 Op. OLC __ n.1, 2012 WL
168645, at *1 n.1 (2012)).

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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, slip op. at 21-22, 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 the
Recess Appointments Clause. We know that because Noel
Canning approvingly referred to and heavily relied on the
“thousands” of recess appointments in the Nation’s history,
the vast majority of which occurred during recesses of 10 or
more days. Noel Canning, slip op. at 20, 134 S. Ct. at 2566.
In light of what the Court saw as ambiguity in the
constitutional text, the Court “hesitate[d] to upset the
compromises and working arrangements . . . reached” by past
Presidents and past Senates. Noel Canning, slip op. at 9, 134
S. Ct. at 2560. Relying on that history, the Court stated that a
3-day or shorter recess is “too short” and that a 4-to-9-day
recess is “presumptively too short.” Noel Canning, slip op. at
19, 21, 134 S. Ct. at 2566-67. By contrast, as the Court
explained, recess appointments during recesses of 10 or more
days have been very common historically. Importantly, the
Court in Noel Canning did not place any new limits or
conditions on the President’s authority to make recess
appointments during a recess of 10 or more days. And it is
not our place, particularly as a lower court, to impose new
limits that would be inconsistent with the historical precedents
relied on by the Supreme Court and that the Supreme Court
itself did not see fit to impose in its comprehensive Noel
Canning opinion.

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Consistent with the historical examples that the Supreme
Court relied on in Noel Canning, moreover, the lawfulness of
a recess appointment depends on the ultimate length of the
recess in which the appointment occurred, not the number of
days from the start of the recess to the appointment. See, e.g.,
Noel Canning, slip op. app. B, 134 S. Ct. 2550 app. B (citing
numerous examples of recess appointments, including many
where the appointment occurred before the 10th day of a
recess that lasted 10 or more days). Therefore, the fact that
the Becker appointment occurred on the first day of what
turned out to be a 17-day recess does not affect the validity of
the appointment. What matters under Noel Canning and the
historical precedents is that the appointment occurred during a
recess that lasted 10 or more days – here, a 17-day recess. 2
Put simply, Noel Canning means that the President is
permitted to make recess appointments during recesses of 10
or more days. Therefore, the President’s recess appointment
of Member Becker, which occurred during a 17-day Senate
recess, was constitutionally valid. Accord Gestamp South
Carolina, L.L.C. v. National Labor Relations Board, Nos. 112362, 12-1041, 2014 WL 5013049, at *2 (4th Cir. Oct. 8,
2014).

2

The Court in Noel Canning did not attach any significance to
whether the recess appointment occurred during a Senate
adjournment sine die, as opposed to a Senate adjournment to a fixed
date. Rather, the Court stated that the question is whether the
recess was “of sufficient length.” Noel Canning, slip op. at 40, 134
S. Ct. at 2577. In any event, consistent with its usual practice for
intra-session recesses, in the intra-session recess at issue in this case
the Senate adopted a resolution on March 26, 2010, which stated
that it was adjourning until April 12, 2010. 156 Cong. Rec. S2,180
(daily ed. Mar. 26, 2010); see Noel Canning, slip op. at 9, 134 S.
Ct. at 2561.

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In a previous judgment, we rejected Mathew Enterprise’s
other challenges to the Board’s order in this case, but we
withheld issuance of the mandate pending resolution of the
Recess Appointments Clause issue. We now lift the order
withholding issuance of the mandate, and we order issuance
of the mandate.
So ordered.

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