Mathew Enterprise, Inc. v. National Labor Relations Board

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.

2

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 the Court 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, 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

3

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)).

4

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. 11-

2362, 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.

6

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.