On May 16, 2013, the United States Court of Appeals for the Third Circuit ruled that Craig Becker’s appointment to the National Labor Relations Board was invalid in NLRB v. New Vista Nursing and Rehabilitation, LLC, Nos. 11-3440, 12-1027 and 12-1936 (3^rd Cir. May 16, 2013).

The Court held that the Presidential recess appointment power is limited to breaks between sessions of Congress, not breaks within sessions. Therefore, the Third Circuit invalidated President Obama’s March, 2010 recess appointment of Craig Becker because it occurred during an intra-session period.  (Becker’s term ran from April, 2010 to January, 2012.)

The Court’s reasoning followed the earlier D.C. Circuit Court ruling in Noel Canning. (For more information, see Recess Appointments at NLRB Unconstitutional, Federal Appeals Court Rules.) As a result of its determination that former-Member Becker’s appointment was invalid, the Third Circuit decision overturned the Board’s ruling against New Vista Nursing and Rehabilitation because Member Becker was part of the three-member Board panel that had issued the decision. The Court noted the issue was a jurisdictional issue which it said could be raised at any time. Thus, this ruling potentially could impact any decision in which Becker participated in the Third Circuit.  Based on this decision, in the Third Circuit’s view, the NLRB lacked a quorum since approximately August 2011.

After the Noel Canning decision, the NLRB has continued to issue decisions, stating that it was conducting “business as usual,” because (as noted by Board Chairman Pearce) the Noel Canning ruling applies only to one specific case in one Circuit. This case represents yet another hurdle for the NLRB and “business as usual.”