Mathew Enterprise, Inc. v. National Labor Relations Board
771 F.3d 812
D.C. Cir.2014Background
- Mathew Enterprise petitioned to set aside an NLRB order arguing one Board member, Craig Becker, was unlawfully appointed by a presidential recess appointment.
- The NLRB issues decisions by three-member panels; if Becker was invalidly appointed, the panel here would have only two valid members, violating the statutory three-member requirement.
- Becker was recess-appointed by President Obama on March 27, 2010, during an intra-session Senate recess that lasted 17 days.
- Mathew Enterprise contended the 17-day intra-session recess was too short or otherwise invalid under the Recess Appointments Clause.\
- The court stayed issuance of its mandate pending resolution of the Recess Appointments Clause challenge and later addressed the question in light of the Supreme Court’s decision in National Labor Relations Board v. Noel Canning.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether President may make a recess appointment during an intra-session 17-day Senate recess | Becker's appointment invalid because intra-session recess of this length is insufficient | Recess Appointments Clause covers intra-session recesses of sufficient length; historical practice supports such appointments | Appointment valid because Noel Canning permits recess appointments during recesses of 10 or more days |
| If Becker invalid, whether NLRB panel had quorum to act | Without Becker, panel had only two valid members and lacked statutory three-member quorum | Because Becker validly appointed, panel included three valid members and action stands | Panel had required three valid members; NLRB order upheld |
Key Cases Cited
- National Labor Relations Board v. Noel Canning, 134 S. Ct. 2550 (2014) (holds Recess Appointments Clause permits appointments during intra-session recesses of "substantial length" and endorses reliance on historical practice)
- New Process Steel, L.P. v. National Labor Relations Board, 560 U.S. 674 (2010) (requires three properly appointed members for an NLRB panel to exercise authority)