UPDATED Monday 6:18 p.m.  The challengers to Judge Jackson’s ruling on Monday formally began an appeal and asked for a postponement of the ruling during the appeal.  The appeal from all but one of the groups will include the recess appointment issue; the National Association of Manufacturers does not join in that part.  Without a postponement, the NLRB’s rights-posting mandate goes into effect April 30.  Filings regarding the appeal are here and here.


In the first federal court case challenging President Obama’s claim that he can make new government appointments when the Senate is temporarily out of session, a federal judge in Washington refused on Friday to allow business groups to bring that issue into an already well-advanced case on the powers of the National Labor Relations Board.  The judge then went ahead and decided that case, giving the NLRB only a partial victory on its authority to require companies to inform workers about their legal rights.  The ruling on the appointments issue is here.  The separate ruling on the Board’s powers is here.  Other groups have said they will challenge the Obama appointments, so the issue may well get decided at some point, and may eventually work its way to the Supreme Court.

U.S. District Judge Amy Berman Jackson said that the business groups, led by the National Association of Manufacturers, were attempting to “shoehorn” a challenge to the appointments into a case the groups had previously filed to contest the Board’s decision to require employers to put up in their workplaces, prominent enough for workers to see, a poster outlining their rights to complain to the Board about what the employees felt were unfair labor practices.   In seeking to add to their pending complaint a challenge to the appointment of three new Board members, the groups had argued that those members were named illegally because Obama had skirted Senate review, so the newly constituted agency had no power to implement the so-called “notice posting rule.”  The case is National Association of Manufacturers, et al., v. NLRB, et al. (District Court docket 11-1629).

The NLRB rule would require as many as six million employers to put up a permanent poster that notifies their employees of their rights under federal labor law.  The rule is scheduled to go into effect at the end of April, and, as a result of Judge Jackson’s ruling on the merits Friday, it will actually take effect then unless a higher court is asked to block it and agrees to do so.   Judge Jackson noted that the rule was adopted by the Board at a time when it had a fully functioning membership in August of last year.  Moreover, she concluded, the challenge to that rule was aimed at the Board itself, as well as to any members of the Board, so the case could in any event proceed against the Board as an entity.  She also said that any actual enforcement of the new rule would be by aides to the Board, not by the Board itself or its official members.

While ruling that the Board did have the authority to require posting of the rights notice, Judge Jackson did blunt the effect of that, by ruling that the agency did not have the power to enforce the rule by two methods: treating a failure to put up the poster as an unfair labor practice perhaps leading to sanctions, and suspending the unfair labor practice filing deadline for workers challenging a company that had failed to post the notice.   Those parts of the ruling left unclear how effective the posting rule would be in actual practice.

The Board now has three new members temporarily filling vacancies on the five-member Board.  For months, the Senate had failed to act on nominees to fill those seats, and the Board was bogging down in its work because the Supreme Court had ruled that the Board cannot take action with only two of its allotted five members.  So, on January 3, President Obama gave temporary appointments to three new members , as well as a temporary appointment to the head of a new consumer protection agency — another nominee who had been stalled in the Senate.   Even though the Senate had not taken a formal recess at the close of last year’s session, it was coming in for brief, pro forma sessions — one specific aim of which was to deny the President the authority to fill vacancies under his power, granted in the Constitution, to make recess appointments.

The President’s legal advisers had concluded that the Senate was actually in recess, despite the brief, no-work sessions that it was holding, and that such tactics by the Senate could not constitutionally deprive the President of his recess appointment authority.  The dispute thus turns on the issue on when, constitutionally, the Senate actually is in recess.  That is an issue the courts would have to decide, if a proper case gets filed on the issue.

























Posted in Cases in the Pipeline, Featured

Recommended Citation: Lyle Denniston, Recess appointment test fails (UPDATED), SCOTUSblog (Mar. 2, 2012, 1:08 PM), https://www.scotusblog.com/2012/03/recess-appointment-test-fails/