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National Labor Relations Board v. New Vista Nursing and Rehabilitation

May 16, 2013


On Application for Enforcement of an Order of the National Labor Relations Board & Cross-Petition for Review (NLRB No. 22-CA-29988)

The opinion of the court was delivered by: Smith, Circuit Judge.


Argued March 19, 2013

Before: SMITH, GREENAWAY JR, and VAN ANTWERPEN, Circuit Judges


The Recess Appointments Clause in the Constitution provides that ―[t]he President shall have Power to fill up all Vacancies that may happen during the Recess of the Senate, by granting Commissions which shall expire at the End of their next Session.‖ U.S. Const. art. II, § 2, cl. 3. The central question in this case is the meaning of ―the Recess of the Senate,‖ which is the only time in which the president may use his power to recess appoint officers. Three definitions have been offered: (1) breaks between sessions of the Senate (i.e., ―intersession breaks‖); (2) these intersession breaks as well as breaks within a session (i.e., ―intrasession breaks‖) that last for a non-negligible time, or (3) any break in Senate business that makes the body unavailable to provide advice and consent on the president's nominations. This is a difficult question that has never been addressed by our Court or the Supreme Court. We hold that ―the Recess of the Senate‖ in the Recess Appointments Clause refers to only intersession breaks. As a consequence, we conclude that the National Labor Relations Board panel below lacked the requisite number of members to exercise the Board's authority because one panel member was invalidity appointed during an intrasession break. We will therefore vacate the Board's orders.


New Vista operates a nursing and rehabilitative care center in Newark, New Jersey. On January 25, 2011, a healthcare workers' union petitioned the National Labor Relations Board (―the Board‖) for certification as the representative for New Vista's licensed practical nurses (―LPN‖). New Vista opposed this certification on the grounds that its LPNs are supervisors who cannot unionize under the National Labor Relations Act (―NLRA‖), 29 U.S.C. § 152(3), (11). See NLRB v. Kentucky River Cmty. Care, Inc., 532 U.S. 706, 709 (2001) (explaining that supervisors do not fall within the NLRA's definition of a bargaining unit). On March 9, 2011, the Board's regional director determined that New Vista's LPNs were not supervisors and thus certified the union as well as ordered an election. New Vista appealed to the Board, which affirmed the regional director's order.

The union won a majority in the ensuing election. New Vista refused to bargain with the union,*fn1 which then filed a charge of unfair labor practices against New Vista before the Board. On behalf of the union, the Board's general counsel moved for summary judgment against New Vista, which New Vista opposed. The Board unanimously granted summary judgment in favor of the Union and against New Vista in a ―decision and order‖ dated August 26, 2011.

This order was issued by a three-member ―delegee group‖ of the Board. The NLRA establishes that the Board is composed of up to five members, appointed by the president and confirmed with the advice and consent of the Senate. 29 U.S.C. § 153(a). Section 153(b) authorizes the Board to ―delegate to any group of three or more members any or all of the powers which it may itself exercise.‖ Id. § 153(b). These delegee groups must ―maintain a membership of three in order to exercise the delegated authority of the Board.‖ New Process Steel, L.P. v. NLRB, 130 S. Ct. 2635, 2644 (2010).

Importantly, this three-member-composition requirement is distinct from § 153(b)'s quorum requirements. The quorum requirements speak to the number of members who must be present to exercise the Board's powers for either the Board itself or a properly constituted three-member (or more) delegee group. See id. at 2642-43 (explaining that the ―group quorum provision‖ ―authorizes two members to act as a . . . group of at least three members‖ but does not ―authorize two members to constitute a valid delegee group‖); see also id. at 2642 (defining quorum as ―the number of members of a larger body that must participate for the valid transaction of business‖). To have a quorum, a delegee group must have at least two of its three members present and the Board must have at least three of its five members present. 29 U.S.C. § 153(b).

In contrast, the three-member-composition requirement speaks to how many members are required for a delegee group to be a properly constituted body that can exercise the Board's powers. These different requirements are certainly related, but this case simply turns on whether the delegee group that issued the August 26 Order and the subsequent reconsideration orders had three members.

On September 7, 2011, New Vista filed a motion with the Board to reconsider the August 26 Order. The company argued that the three-member delegee group acted ultra vires because although the order is dated August 26--one day before one member, Wilma Liebman, resigned--it was not issued until it was mailed during the week of August 29. This would mean, according to New Vista, that the panel had only two members when the order was issued, thereby violating 29 U.S.C. § 153(d)'s three-member-composition requirement. The company also argued that the August 26 Order was substantively incorrect. Meanwhile, on September 13, 2011, the Board filed with this Court an application for enforcement of the August 26 Order. We granted an uncontested motion to hold in abeyance the filing of the administrative record pending resolution of the motion for reconsideration. This functionally acted as a stay of the proceedings before us.

On December 30, 2011, the Board denied New Vista's motion for reconsideration. New Vista took two actions. First, it filed a second motion for reconsideration on January 3, 2012. In this motion, the company argued that the three-member December 30 delegee group was improperly constituted and thus without power to issue the order because one of the panelists was recused from the case. The company also argued in a March 14 ―further motion for reconsideration‖ that the December 30 Reconsideration Order delegee group was improperly constituted because one of the panelists was a recess appointee whose term concluded at the end of the Senate's 2011 session--which New Vista contended was December 17, 2007, thirteen days before the December 30 Reconsideration Order was issued.

Second, on January 9, 2012, New Vista filed a petition for review of the December 30 Reconsideration Order with this Court. We have treated this petition as a cross-petition for review opposing the Board's petition for enforcement of the August 26 Order. We also granted another Board motion to hold in abeyance the filing of the administrative record for these petitions until New Vista's second motion for reconsideration was resolved. This, again, functionally acted as a stay of the proceedings before us.

On March 15, 2012, the Board denied New Vista's second motion for reconsideration. This order did not address the company's March 14 argument that the term of one panelist had ended on December 17. On March 22, 2012, New Vista filed a third motion for reconsideration. This motion reiterated the company's March 14 argument that the December 30 delegee group was improperly constituted because the Senate's session had ended on December 17. The motion also argued that the three-member delegee group that issued the March 15 Reconsideration Order lacked three members because two of its members were invalidity appointed to the Board under the Recess Appointments Clause while the Senate was not in ―recess.‖ In sum, New Vista argued that if the Senate's session had ended when it began using pro forma sessions, then the December 30 panel had only two members because the term of one of its members expired. But if the Senate's session did not end at that time, then the March 15 panel was improperly constituted because the president's recess appointments were invalidity made while the Senate was not in recess. The Board denied this motion on March 27, 2012. The Board also filed the administrative record with this Court on that date, thereby stripping itself of jurisdiction. See 29 U.S.C. § 160(e) (―Upon the filing of the record with it the jurisdiction of the court shall be exclusive and its judgment and decree shall be final.‖).

On April 4, 2012, New Vista filed a petition for review of the March 15 and March 27 Reconsideration Orders. We granted New Vista's request that this petition be consolidated with New Vista's earlier petition for review for all purposes. These consolidated petitions for review are collectively a cross petition opposing the Board's petition for enforcement of the August 26 Order.


We consider sua sponte whether the delegee group that issued the August 26 Order had jurisdiction. See Bender v. Williamsport Area Sch. Bd., 475 U.S. 534, 541 (1986) (explaining that ―every federal appellate court has a special obligation to ‗satisfy itself not only of its own jurisdiction, but also that of the lower courts in a cause under review,' even though the parties are prepared to concede it‖ (quoting Mitchell v. Maurer, 293 U.S. 237, 244 (1934))). In their initial briefs, the parties contended that the delegee group had subject-matter jurisdiction under 29 U.S.C. § 160(a), which ―empower[s]‖ the Board (and its three-member delegee groups) ―to prevent any person from engaging in any unfair labor practice . . . affecting commerce.‖ We do not doubt that § 160(a) provides one jurisdictional requirement for the Board to adjudicate a case. But that does not preclude others. We have thus inquired whether 29 U.S.C. § 153(b)'s three- member-composition requirement is jurisdictional. We hold that it is.

This Court has previously explained that ―the overall authority of the Board to hear [a] case under the NLRA‖ is a jurisdictional question that ―‗may be raised at any time.'‖ NLRB v. Konig, 79 F.3d 354, 360 (3d Cir. 1996) (quoting NLRB v. Peyton Fritton Stores, Inc., 336 F.2d 769, 770 (10th Cir. 1964)); see also Polynesian Cultural Center, Inc. v. NLRB, 582 F.2d 467, 472 (9th Cir. 1978). Under § 153(b) and New Process Steel, delegee groups of the Board do not have statutory authority to act if they have fewer than three members. New Process Steel, 130 S. Ct. at 2644; Teamsters Local Union No. 523 v. NLRB, 624 F.3d 1321, 1322 (10th Cir. 2010) (holding that a ―two-member NLRB group that issued the order in this case lacked statutory authority to act‖ (emphasis added)). The three-member-composition requirement is thus jurisdictional because it goes to the Board's authority ―to hear [a] case under the NLRA.‖ Konig, 79 F.3d at 360.

Nevertheless, the Supreme Court ―has endeavored in recent years to ‗bring some discipline' to the use of the term ‗jurisdictional.'‖ Gonzalez v. Thaler, 132 S. Ct. 641, 648 (2012) (quoting Henderson v. Shinseki, 131 S. Ct. 1197, 1202-03 (2011)). So there may be reason to believe that Konig's analysis and the subsequent jurisdictional conclusion for this case are no longer valid. Lebanon Farms Disposal, Inc. v. Cnty. of Lebanon, 538 F.3d 241, 249 n.16 (3d Cir. 2008) (explaining that ―[a]n intervening decision of the Supreme Court is a sufficient basis for us to overrule a prior panel's opinion without referring the case for an en banc decision‖). Our review of the Court's recent clarification shows that Konig remains good law and that the three-member- composition requirement is jurisdictional. The Court has explained that jurisdiction ―refers to a court's adjudicatory authority.‖ Reed Elsevier, Inc. v. Muchnick, 130 S. Ct. 1237, 1243 (2010) (quoting Kontrick v. Ryan, 540 U.S. 443, 455 (2004)). Subject-matter jurisdiction ―refers to ‗the courts' statutory or constitutional power to adjudicate the case.'‖ Id. (quoting Steel Co. v. Citizens for Better Env't, 523 U.S. 83, 89 (1998) (emphasis in original)).

Although these statements refer to Article III courts, jurisdictional issues are just as important for administrative adjudicative bodies. ―It is well settled that an administrative agency,‖ like an Article III court, ―is a tribunal of limited jurisdiction.‖ Pentheny Ltd. v. Gov't of Virgin Islands, 360 F.2d 786, 790 (3d Cir. 1966). An administrative agency ―may exercise only the powers granted by the statute reposing power in it.‖ Id.; see also 2 Am. Jur. 2d Administrative Law § 282 (2013) (―Administrative agencies are tribunals of limited jurisdiction . . . . As a general rule, agencies have only such adjudicatory jurisdiction as is conferred on them by statute.‖). These powers are limited by the scope of the jurisdictional statute in the same way that a federal court's powers are limited by the Constitution and statute. Compare 2 Am. Jur. 2d Administrative Law § 282, with Exxon Mobil Corp. v. Allapattah Servs., Inc., 545 U.S. 546, 552 (2005) (―The district courts of the United States, as we have said many times, are ‗courts of limited jurisdiction. They possess only that power authorized by Constitution and statute.'‖ (quoting Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 377 (1994))). The fact that this case deals with an administrative agency does not eliminate the requirement that a delegee group satisfy all jurisdictional requirements before it may exercise the Board's powers.

In Henderson v. Shinseki, the Supreme Court stated that ―a rule should not be referred to as jurisdictional unless it governs a court's adjudicatory capacity, that is, its subject-matter or personal jurisdiction.‖ 131 S. Ct. at 1202. As noted, subject-matter jurisdiction is ―statutory or constitutional power to adjudicate the case.‖ Steel Co., 523 U.S. at 89 (emphasis in original). Furthermore, in Arbaugh v. Y&H Corp., 546 U.S. 500 (2006), the Supreme Court provided a ―readily administrable bright line‖ rule: ―If the Legislature clearly states that a threshold limitation on a statute's scope shall count as jurisdictional, then courts and litigants will be duly instructed and will not be left to wrestle with the issue.‖ Id. at 515-16. ―But when Congress does not rank a statutory limitation on coverage as jurisdictional, courts should treat the restriction as non-jurisdictional in character.‖ Id. at 516. ―Congress, of course, need not use magic words in order to speak clearly on this point,‖ so context can show that a requirement is jurisdictional. Henderson, 131 S. Ct. at 1203.

The Supreme Court's recent decision in New Process Steel indicates that § 153(b)'s three-member- composition requirement is jurisdictional. In that case, the Board had delegated its power to a three-member delegee group. Three days after the delegation became effective, the term expired for one of the three members of the delegated group. This left the group with only two members. 130 S. Ct. at 2638-39. The Supreme Court held that § 153(b)'s three-member-composition requirement meant that the ―two remaining Board members cannot exercise‖ the authority of the Board. Id. at 2638, 2644 (―We thus hold that the delegation clause requires that a delegee group maintain a membership of three in order to exercise the delegated authority of the Board.‖). The presence of three Board members in a delegee group is a necessary condition for the Board to exercise its power to adjudicate a matter before it.

New Process Steel renders the three-member- composition requirement ―a threshold limitation‖ on the scope of the power delegated to the Board by the NLRA: the Board cannot exercise its power through a delegee group if that group has fewer than three members. This statutory mandate is therefore jurisdictional. See Arbaugh, 546 U.S. at 515 (explaining that ―threshold limitation[s] on a statute's scope‖ imposed by Congress are jurisdictional); Teamsters Local Union No. 523, 624 F.3d at 1322 (holding that a ―two-member NLRB group that issued the order in this case lacked statutory authority to act‖ (emphasis added)). By explaining that three members are required ―in order to exercise the delegated authority of the Board,‖ New Process Steel, 130 S. Ct. at 2644, the Supreme Court has in essence declared that the three-member-composition requirement goes directly to the board's ―power to hear a case,‖ which is exactly what jurisdictional questions relate to. United States v. Cotton, 535 U.S. 625, 630 (2002); see also Noel Canning v. NLRB, 705 F.3d 490, 497 (D.C. Cir. 2013) (―[T]he objections before us concerning lack of a quorum raise questions that go to the very power of the Board to act.‖).*fn2

The Board relies on three cases*fn3 as authority providing that ―a claim that a federal officer was appointed unconstitutionally is not a jurisdictional challenge.‖ NLRB Ltr. Br. at 2 (Feb. 28, 2013) (citing Freytag v. Commissioner of Internal Revenue, 501 U.S. 868 (1991); Intercollegiate Broad. Sys., Inc. v. Copyright Royalty Bd., 574 F.3d 748 (D.C. Cir. 2009); Evans v. Stephens, 387 F.3d 1220 (11th Cir. 2004) (en banc) (emphasis in original). These cases hold that Appointments Clause challenges are non-jurisdictional when brought independently. Freytag, 501 U.S. at 878- 79; Intercollegiate Broad. Sys., 574 F.3d at 755-56; Evans, 387 F.3d at 1222 n.1. Those holdings are not relevant to the jurisdictional conclusion we reach today. We do not hold that challenges under the Appointments or Recess Appointments Clauses are jurisdictional. We instead hold that the NLRA's three-member-composition requirement is jurisdictional and must be met before the Board can exercise its power over a case. Because this requirement is jurisdictional, any reason for which the delegee group consists of fewer than three members-- including whether one member is invalidity appointed under the Recess Appointments Clause--can be raised by a party or by this Court at any point in litigation as a jurisdictional defect. See Henderson, 131 S. Ct. at 1202.

The jurisdictional nature of the three-member- composition requirement is especially important in this case because it requires us to analyze whether Craig Becker--one of the three-member delegee group that decided the August 26 Order--held a valid appointment under the Recess Appointments Clause. This question is distinct from the recess-appointments question initially briefed by the parties. The parties' briefs address whether Richard Griffin and Sharon Block--who were members of the delegee group that decided the March 15 and March 27 Reconsideration Orders--were invalidity recess appointed because their January 9, 2012 appointments were made while the Senate was holding so-called pro forma sessions.*fn4 Member Becker was not appointed when the Senate was holding pro forma sessions but, instead, was appointed on March 27, 2010, one day after the Senate ―adjourn[ed]‖ for two weeks. 156 Cong. Rec. S2180 (daily ed. Mar. 26, 2010) (statement of Sen. Kaufman) (reporting Senator Ted Kaufman's motion for and the Senate's unanimous consent of the body being ―adjourned until Monday April 12, 2010 at 2 p.m.‖). As will be seen in Part V, this means that our consideration of Member Becker's appointment entails evaluation of at least one more definition of ―recess‖ than the evaluation of Members Griffin and Block's appointments. Before delving into the difficult constitutional task of defining ―recess,‖ however, we must first address two preliminary questions: whether the delegee group that issued the August 26 Order lacked three members as a result of Chairman Liebman's resignation and whether the definition of recess is a non-justiciable political question.


―We have a longstanding practice of avoiding constitutional questions in cases where we can reach a decision upon other grounds.‖ Egolf v. Witmer, 526 F.3d 104, 109 (3d Cir. 2008). That practice leads us first to consider New Vista's non-constitutional argument that the August 26 Order was issued by a delegee group of fewer than three members. New Vista contends that one of the three members resigned before the order was issued. The delegee group that issued the order consisted of Chairman Liebman, Member Becker, and Member Hayes. The face of the order is dated August 26, 2011. New Vista Nursing & Rehab., 367 N.L.R.B. No. 69 (Aug. 26, 2011). The Board docket also reflects August 26, 2011 as the date that the order was issued. New Vista Nursing & Rehab., NLRB No. 22-CA-029988 (Aug. 26, 2011), On August 27, Chairman Liebman resigned. New Vista argues that the order was actually entered after Liebman resigned because the order ―was mailed, received by the Regional Board Agent, and was posted on the Board's Summary of Decisions Website on August 31, 2012.‖ Pet'r's Br. at 31. The Board does not dispute that the order was mailed to interested parties after August 27 but contends that the order was issued on August 26--the date that appears on the face of the order.

―Agency action is entitled to a presumption of regularity.‖ Frisby v. U.S. Dep't of Hous. & Urban Dev., 755 F.2d 1052, 1055 (3d Cir. 1985). ―Acts done by a public officer which presuppose the existence of other acts to make them legally operative, are presumptive proofs of the latter.‖ R.H. Stearns Co. of Boston, Mass. v. United States, 291 U.S. 54, 63 (1934). Here, the act done was the issuance of the August 26 Order, which presupposes that the members listed as having made the decision did in fact make that decision. The issuance of the order creates a presumption that all three members listed on the order decided it. See id. It is New Vista's burden to rebut that presumption.

New Vista offers only a single piece of evidence in rebuttal: that the order was not mailed until after August 26. This is insufficient, and Braniff Airways, Inc. v. Civil Aeronautics Bd., 379 F.2d 453 (D.C. Cir. 1967), demonstrates why that is so. In that case, Braniff Airways argued that the Civil Aeronautics Board lacked a quorum because one of its members had resigned before the order was issued. Id. at 459. The order in that case was issued on June 1, the same day the member in question resigned. The Court found that the Board had a quorum solely on the basis that the order ―on its face indicated that it was concurred in and signed on June 1, 1965.‖ Id. The Court reached that conclusion despite payroll records with conflicting accounts, one of which showed that the member was on the payroll only through May 31, 1965. Id. Notably, the Court also discounted that the order ―was not served until June 2,‖ on the basis that ―[i]n [their] view it is plain that once all members have voted on an award and caused it to be issued the order is not nullified because of incapacity, intervening before the ministerial act of service, of a member needed for a quorum.‖ Id. (emphasis added).

The D.C. Circuit's reasoning is equally persuasive here. The only evidence New Vista puts forth is that the order was mailed after it was dated and posted on the docket. This falls short even of what Braniff Airways presented. It relied not only on a delay in service but also on payroll records. New Vista presents even weaker grounds to doubt the order's date than Braniff offered the D.C. Circuit. New Vista cannot overcome the presumption of regularity.

New Vista also argues that it is entitled to seek further discovery into when the members voted on the August 26 Order. The company acknowledges, however, that ―the NLRB may not be required to enter for the record the time, place, and content of their deliberations,‖ Pet'r's Br. at 53, and the Board has stated that the minutes sought do not exist, Resp. Br. at 29. Yet New Vista persists, asserting ―that the record of the time of their votes on agency actions under review is essential to determine‖ the validity of the August 26 Order. Pet'r's Br. at 53. The company fails to explain why the date listed on the order itself is not evidence ―of the time of their vote.‖ Absent a reason to doubt the date listed, the presumption of regularity requires that we consider the date as the record of when the delegee group caused the opinion to be issued, which presupposes that they voted on or before that date. Accordingly, New Vista has failed to show that one of the members resigned prior to the issuance of the August 26 Order.


The amicus argues that we should decline to define the word ―recess‖ within the Recess Appointments Clause because it is a non-justiciable political question. ―Questions of justiciability are distinct from questions of jurisdiction, and a court with jurisdiction over a claim should nonetheless decline to adjudicate it if it is not justiciable.‖ Gross v. German Found. Indus. Initiative, 456 F.3d 363, 376 (3d Cir. 2006) (citing Baker v. Carr, 396 U.S. 186, 198 (1962)). An issue presents a non-justiciable political question when one of the following characteristics is ―inextricable from the case‖:

a textually demonstrable constitutional commitment of the issue to a coordinate political department; or a lack of judicially discoverable and manageable standards for resolving it; or the impossibility of deciding without an initial policy determination of a kind clearly for non-judicial discretion; or the impossibility of a court's undertaking independent resolution without expressing lack of the respect due coordinate branches of government; or an unusual need for unquestioning adherence to a political decision already made; or the potentiality of embarrassment from multifarious pronouncements by various departments on one question.

Baker, 369 U.S. at 217. Amicus's principal contentions are that the recess-appointments claim by New Vista is non-justiciable because (1) ―‗the issue is textually committed' to the president,‖ Amicus Br. at 4 (quoting Nixon v. United States, 506 U.S. 224, 228 (1993)), and (2) there are ―no ‗manageable standards' to solve the partisan argument between the Executive and Congress regarding dysfunctional Senate confirmation processes,‖ id.*fn5 Neither argument is persuasive.

Nothing in the language of the Recess Appointments Clause textually commits to the president the task of defining ―recess.‖ The Clause states that ―[t]he President shall have Power to fill up all Vacancies that may happen during the Recess of the Senate, by granting Commissions which shall expire at the End of their next Session.‖ U.S. Const. art. II, § 2, cl. 3. This language lacks the explicit assignment of power to any one branch, such as the assignment found in the Constitution's Impeachment Trial Clause which states that ―[t]he Senate shall have the sole Power to try all Impeachments.‖ U.S. Const. art. I, § 3, cl. 6 (emphasis added); Nixon, 506 U.S. at 228-35 (concluding that the explicit assignment, along with drafting history indicating that the assignment was intentional, meant that the power to try impeachments was textually committed to the Senate). The Recess Appointments Clause also does not contain an imperative to either branch to craft a rule regarding the meaning of recess--or, more broadly, when the president may use his recess appointments power. The Clause is thus also distinguishable from the Naturalization Clause's grant to Congress of the authority to ―establish an uniform Rule of Naturalization.‖ U.S. Const. art. I, § 8, cl. 4; New Jersey v. United States, 91 F.3d 463, 469 (3d Cir. 1996) (stating that this Clause represents a textual commitment to Congress).*fn6

Finally, the Clause does not provide unqualified power to either the Senate or the president that would suggest it makes a textual commitment to either. It limits the president's recess-appointment power by requiring that the Senate be in recess, and it limits the Senate's ordinary advice-and-consent power by eliminating that power while the Senate is in recess. The Clause thus cannot be read to invariably favor one branch's interests in such a way that it makes a textual commitment to one of them. See Freytag, 501 U.S. at 880 (―Because it articulates a limiting principle, the Appointments Clause does not always serve the Executive's interests.‖); Ryder v. United States, 515 U.S. 177, 182 (1995) (―The [Appointments] Clause is a bulwark against one branch aggrandizing its power at the expense of another branch, but it is more: it ‗preserves another aspect of the Constitution's structural integrity by preventing the diffusion of the appointment power.'‖ (quoting Freytag, 501 U.S. at 878)); The Federalist No. 76 (Alexander Hamilton) (explaining the Constitution's rejection of unitary power in either the president or the Senate in favor of one that divides power between them).

The amicus disputes this, arguing that the Clause makes a textual commitment by providing the president ―unilateral appointment authority when the Senate [is] unavailable to render its advisory consent vote.‖ Amicus Br. at 12. This argument reveals the tendency of the political-question doctrine ―to obscure the need for case by case inquiry.‖ Gross, 456 F.3d at 377-78 (quoting Baker, 369 U.S. at 210-11). We have cautioned against this tendency, instructing that our inquiry must ―avoid ‗resolution by any semantic cataloguing,'‖ and must instead ―undertake a ‗discriminating inquiry into the precise facts and posture of the particular case.'‖ Id. (quoting Baker, 369 U.S. at 217). The amicus's argument runs afoul of our instruction because it merges the issue present in this case (when the president can use his recess-appointments power) with an issue not in this case (how the president can use that power). The amicus's characterization of the power speaks to both issues: it states how the president can use his recess-appointment power (―unilateral authority‖) and assumes the answer to the question in this case of when he can use that power (―when the Senate [is] unavailable to render its advisory consent vote‖). The greater power the president has during a recess does not shed light on what the word ―recess‖ means or who decides what it does mean and thus does not provide a reason to conclude that the Clause makes a textual commitment to the president. Cf. INS v. Chadha, 462 U.S. 919, 940-41 (1983) (explaining that Congress' plenary authority over immigration does not immunize it from judicial review for violations of other constitutional restrictions on its power committed while exercising that authority).

The amicus's concerns regarding the lack of judicially manageable standards for defining ―the Recess of the Senate‖ are similarly unfounded. There are several judicially manageable standards for defining ―the Recess of the Senate‖ and, correspondingly, for when the president may use his recess-appointments power. The parties present two different standards: according to New Vista, any time after both houses have agreed to adjourn for more than three days, Pet'r's Br. at 40-41, and according to the Board, any time the Senate is not available to conduct regular business, Resp. Br. at 44. Cf. Zivotofsky, 132 S. Ct. at 1428-30 (relying on the ―detailed legal arguments‖ provided by the parties regarding whether the statute at issue was constitutional to show the existence of judicially manageable standards). The D.C. Circuit has provided another: intersession breaks that follow adjournments sine die of the Senate. Noel Canning, 705 F.3d at 506-07. Of these standards, those provided by the D.C. Circuit and New Vista are judicially manageable because they rely on regular procedures employed in the Senate and found in the Senate's record. The Board's more open-ended definition of recess might very well be unmanageable because it does not rely on any particular Senate procedure and would require judicial ―explor[ation] [of] communications between the Senate Minority and the president‖ in addition to review of the ―scheduling schemes of the Senate Minority and House Majority.‖ Amicus Br. at 20-24 (arguing, after rejecting the standard offered by New Vista, that the Board's standard is unmanageable). But this only cautions against selecting the Board's standard rather than showing that there are no judicially manageable standards available.

Of course, if the question is framed--as the amicus has--as a need to derive a judicially manageable standard ―to resolve [ ] the underlying cycles of partisan confirmation obstruction payback which caused the NLRB vacancies,‖ Amicus Br. at 25, then there is likely no judicially manageable standard. See also Evans, 387 F.3d at 1227 (rejecting as non-justiciable an argument that the president unconstitutionally used the recess- appointment power because the appointee had been previously rejected by the Senate and thus constituted a circumvention of the Senate's advice and consent role). But that is not the question we face. Instead, we must define the phrase ―the Recess of the Senate,‖ which is a question distinct from resolving the ―cycles of partisan confirmation obstruction payback.‖ See id. at 1224-26, 1227 (defining recess to include intrasession breaks despite holding that the political argument made was non-justiciable).

This task falls within the ―‗province and duty of the judicial department to say what the law is.'‖ Zivotosky, 132 S. Ct. at 1427-28 (quoting Marbury v. Madison, 5 U.S. (1 Cranch) 137, 177 (1803)). This ―duty will sometimes involve the ‗[r]esolution of litigation challenging the constitutional authority of one of the three branches,' but courts cannot avoid their responsibility merely ‗because the issues have political implications.'‖ Id. at 1428 (quoting Chadha, 462 U.S. at 943) (alteration in original). Thus, ―the fact that the resolution of the merits of a case would have ‗significant political overtones does not automatically invoke the political question doctrine.'‖ Khouzam v. Att'y Gen., 549 F.3d 235, 249-50 (3d Cir. 2008) (quoting Chadha, 462 U.S. at 942-43). That the issue presented here touches on political events of the day is not dispositive of whether this case presents a non-justiciable question. Because there are manageable standards and because the Clause does not make a textual commitment to the Senate or the president, we hold that interpreting the phrase ―the

Recess of the Senate‖ is a justiciable question.


Having determined that the Recess Appointments question is justiciable, we now begin our analysis of the recess-appointment issue. Member Becker is the only member of the delegee group that issued the August 26 Order who was recess appointed and thus the only one whose appointment is in question. As noted, he was appointed during an intrasession break that began on March 26, 2010, and ended on April 12, 2010. This break lasted seventeen days and the Senate was indisputably not open for business. His appointment will be invalid if the Recess Appointments Clause does not empower presidents to make recess appointments during these types of breaks.

The Clause provides that ―[t]he President shall have Power to fill up all Vacancies that may happen during the Recess of the Senate, by granting Commissions which shall expire at the End of their next Session.‖ U.S. Const. art. II, § 2, cl. 3. This is understood to allow the president to use his recess appointment power only ―during the Recess of the Senate,‖ thereby rendering the definition of recess, along with its temporal reach, of pivotal consequence to the controversy now before us. See Noel Canning, 705 F.3d at 499-500; Evans, 387 F.3d at 1224. Three possible definitions have been presented. The D.C. Circuit defines the term to mean only intersession breaks, which are ―the period between sessions of the Senate when the Senate is by definition not in session and therefore unavailable.‖ Noel Canning, 705 F.3d at 499-500, 506. The end of a session is typically demarcated by a particular type of Senate adjournment--an adjournment sine die--which is the procedure used to end a Senate session. Id. at 512-13.*fn7 An intersession break is the period between an adjournment sine die and the start of the next session. David H. Carpenter et al., Cong. Research Serv., R42323, President Obama's January 4, 2012, Recess Appointments: Legal Issues 4 n.23 (2012).

A second definition, one which the Eleventh Circuit has adopted, is that recess includes intersession breaks as well as some ―intrasession‖ breaks, which are breaks in Senate business during a session. Evans, 387 F.3d at 1224. An intrasession break is demarked by a Senate adjournment of any type--other than adjournment sine die--and lasts until the next time the Senate convenes, which is set by the motion to adjourn. See, e.g., Cong. Rec. S2180 (daily ed. Mar. 26, 2010) (statement of Sen. Kaufman) (reporting Senator Kaufman's March 26, 2010 motion for and the Senate's unanimous consent of the body being ―adjourned until Monday April 12, 2010 at 2 p.m.‖). From 1921 until recently, there was a consensus that an intrasession break was not ―the Recess of the Senate‖ unless the break lasted for a non-negligible number of days. The first attorney general to adopt this view suggested that the minimum duration was ten days. 33 U.S. Op. Att'y Gen. 20, 24-25 (1921) (rejecting the proposition that ―an adjournment for 5 or even 10 days can be said to constitute the recess intended by the Constitution,‖ but advising the president that a break of 28 days is within the meaning of recess). All presidents, at least in practice, followed this ten-day minimum until January 2012.

Carpenter et al., supra, at 15 & n.97 (stating that no presidents until 2012 made a recess appointment during an intrasession break shorter than ten days). Accordingly, the second definition includes only those intrasession breaks that last for a significant duration, which historically has been ten days or more.*fn8

The third and final possible definition is of more recent vintage. In January 2012, President Barack Obama made several recess appointments while the Senate was holding pro forma sessions every three or four days. These sessions are considered recesses under the third definition. Pro forma sessions are formal meetings of the Senate in which usually only one Senator is present to convene the body briefly before adjourning it until the next pro forma session. Id. at 2; see also, e.g., 157 Cong. Rec. S8787 (daily ed. Dec. 20, 2011) (statement of Sen. Warner) (recording Senator Mark Warner's convening and adjournment of the Senate in a span of thirty-five seconds). Before such sessions are held, the Senate agrees by unanimous consent that there will be ―no business conducted‖ except business that was previously agreed to, such as convening a new session of the Senate. See, e.g., 157 Cong. Rec. S8783-84 (daily ed. Dec. 17, 2011) (statement of Sen. Wyden) (recording the schedule of pro forma sessions to be held between December 17, 2011 and January 23, 2012). However, these consent agreements can, and have been, subsequently altered to allow initially unplanned business--including the passing of legislation--during a pro forma session. See, e.g., 157 Cong. Rec. S8789 (daily ed. Dec. 23, 2011) (statement of Sen. Reid) (obtaining unanimous consent that a bill ―be considered read three times and passed‖ if an identical version is passed by the House, which the House subsequently did, during a pro forma session); see also Carpenter et al., supra, at 18 & n.108. Importantly, these sessions prevent the Senate from being adjourned for more than three or four days at a time, which means the adjournment never reaches the ten-day minimum discussed above. See, e.g., 157 Cong. Rec. S8784 (daily ed. Dec. 17, 2011) (statement of Sen. Wyden) (recording Senator Ron Wyden's motion, and the Senate's unanimous concurrence therewith, that the Senate be ―adjourned until Tuesday, December 20, 2011, at 11 a.m.‖); 157 Cong. Rec. S8787 (daily ed. Dec. 20, 2011) (statement of Sen. Warner) (recording the Senate's adjournment ―until Friday, December 23, 2011, at 9:30 a.m.‖).

The third definition of recess, which is offered by the Board, allows the president to make recess appointments while the Senate is holding these pro forma sessions. The Board argues that a recess occurs when ―the Senate is not open to conduct business‖ and thus unavailable to ―provid[e] advice and consent on nominations.‖ Resp. Br. at 44. The Board argues that this definition follows from Attorney General Harry Daugherty's 1921 opinion, which adopted a partially functionalist definition of ―the Recess of the Senate‖:

[T]he essential inquiry, it seems to me, is this: Is the adjournment of such duration that the members of the Senate owe no duty of attendance? Is its chamber empty? Is the Senate absent so that it can not [sic] receive communications from the President or participate as a body in making appointments?

33 U.S. Op. Att'y Gen. at 25. The Board contends that these criteria decide whether the Senate is open to conduct business and available to provide its advice and consent. Unlike Attorney General Daugherty's opinion, the Board appears to consider these criteria controlling in themselves, such that there is no requirement for a minimum, non-negligible period of time to pass in order for the Senate to be in recess.*fn9 Id.

Based on these criteria, the Board contends that periods in which the Senate holds pro forma sessions only constitute a recess. This is because during these sessions, the body is neither doing business nor available to provide its advice and consent. This means, per the third definition, that these sessions do not interrupt what would otherwise be an intrasession break that begins with the adjournment before the first pro forma session and lasts until the next convening of the Senate in a non-pro forma session.

In sum, the parties argue that ―the Recess of the Senate‖ has one of three meanings: (1) intersession breaks; (2) intersession and intrasession breaks that last a non-negligible period, which has historically been ten days (―long intrasession breaks‖ hereinafter); or (3) any time in which the Senate is not open for business and is unavailable to provide its advice and consent.*fn10 We hold that ―the Recess of the Senate‖ means only intersession breaks, and so we conclude that Member Becker's appointment was invalid.

A. ―[T]he Recess of the Senate‖

1. The Literal Meaning of Recess

When interpreting the Constitution, ―we begin with its text.‖ City of Boerne v. Flores, 521 U.S. 507, 519 (1997). In doing so, ―we are guided by the principle that ‗[t]he Constitution was written to be understood by the voters; its words and phrases were used in their normal and ordinary as distinguished from technical meaning.'‖ District of Columbia v. Heller, 554 U.S. 570, 576 (2008) (quoting United States v. Sprague, 282 U.S. 716, 731 (1931)). The ―[n]ormal meaning may of course include an idiomatic meaning, but it excludes secret or technical meanings that would not have been known to ordinary citizens in the founding generation.‖ Id. at 576-77.

The word ―recess‖ lacks a natural meaning that clearly identifies whether it includes only intersession breaks or also includes intrasession breaks, whether they be of a certain duration or a period of unavailability. Dictionaries from the time of ratification provide definitions that can be read to support any of these definitions. Samuel Johnson's dictionary defines recess to mean ―[r]etirement; retreat; withdrawing; secession‖ as well as ―[d]eparture‖ and ―[r]emoval to distance.‖ Samuel Johnson, 2 A Dictionary of the English Language 469 (6th ed. 1785).*fn11 All of these definitions contain some connotation of permanence or, at least, longevity. ―Secession,‖ for example, means ―[t]he act of departing‖ or ―[t]he act of withdrawing from councils or actions.‖ Id. at 589; see also Merriam-Webster's Collegiate Dictionary 1121 (11th ed. 2003) (defining ―secession‖ to mean ―formal withdrawal from an organization‖). And ―departure‖ is defined by Johnson to mean ―[a] going away,‖ the ―[d]eath; . . . the act of leaving the present state of existence,‖ and ―an abandoning.‖ Samuel Johnson, 1 A Dictionary of the English Language 568 (6th ed. 1785); see also Merriam-Webster's at 334 (defining ―departure‖ to mean ―the act or an instance of departing,‖ ―a setting out (on a new course)‖); 1 William Blackstone, Commentaries *187-88 (defining one method of terminating parliamentary business, the dissolution, as ―the civil death of the parliament‖). The implication of permanence supports an understanding of recess to mean only intersession breaks because these are followed by an adjournment sine die, which are adjournments without a set date for reconvening. And the implication of longevity supports the idea that recess includes long intrasession breaks.

Neither of these implications is consistent with the Board's unavailable-for-business definition of recess, but other entries in Johnson's dictionary provide some support for that definition. Johnson's definition of recess includes ―[r]emission or suspension of any procedure.‖ Johnson, 2 A Dictionary of the English Language at 469. And, of course, words such as ―departure‖ also have less permanent implications than death. Johnson, 1 A Dictionary of the English Language at 568 (defining ―departure‖ as ―[a] going away‖). The term ―recess,‖ by itself, thus lacks a literal meaning that unambiguously supports one of the three definitions.

2. The Historical Use of Recess

Importantly, though, the Constitution does not say only ―Recess.‖ Rather, it limits the president's recess- appointments power to the ―Recess of the Senate.‖ The words ―of the Senate‖ provide some context for our analysis: parliamentary procedure at the time of ratification. Deal v. United States, 508 U.S. 129, 132 (1993) (―[T]he meaning of a word cannot be determined in isolation, but must be drawn from the context in which it is used.‖).

American colonial legislatures and the first Senate largely derived their parliamentary procedures from the procedures used by the English Parliament. See Henry M. Robert III, et al., Robert's Rules of Order: Newly Revised xxxiv-xxxv (11th ed. 2011) (recounting the migration of English procedures to the American colonies); Thomas Jefferson, A Manual of Parliamentary Practice: For the Use of the Senate of the United States (2d ed. 1812) (relying heavily on English precedents in providing procedural rules for the Senate). English parliamentary procedure at the time had three types of breaks: adjournments, which were ―continuances of the session from one day to another . . . and sometimes a fortnight or a month together‖; prorogations, which were ―continuances of the parliament from one session to another‖ initiated by the king; and dissolutions, which were terminations of a Parliament initiated by the king's order, his death, or a length of time that necessitated new elections before another Parliament could be convened. 1 William Blackstone, Commentaries *186-89; see also Jefferson, supra, § 51 at 164-65; Michael B. Rappaport, The Original Meaning of the Recess Appointments Clause, 52 U.C.L.A. L. Rev. 1487, 1550-51 (2005). The Parliament thus had three breaks: adjournments for intrasession breaks and prorogations as well as dissolutions for intersession breaks.

At first blush, these three types of breaks appear to correspond with the three mechanisms for breaks referred to in our Constitution. ―Adjournment,‖ or its verbal form ―adjourn,‖ is the same phrase the Constitution uses to denote day-to-day and longer breaks within sessions of either chamber. U.S. Const. art. I, § 5, cl. 1 (allowing a minority of members to ―adjourn from day to day‖); id. art. I, § 5, cl. 4 (requiring concurrence between both chambers if, ―during the session of Congress,‖ they are to ―adjourn for more than three days‖).*fn12 The word ―dissolution‖ does not appear in the Constitution, probably because the president does not have the power to dissolve Congress. See id at art. II, § 3 (providing that the president, at most, ―may adjourn [Congress] to such time as he shall think proper‖ if they cannot agree on ―the time of adjournment‖); The Federalist No. 69 (Alexander Hamilton) (explaining the powers of the president and how they are less than those of the king and even the governor of New York by contrasting the president's power to ―only adjourn the national legislature‖ with the ―British monarch['s]‖ power to ―prorogue or even dissolve the Parliament‖). But the concept of dissolution is still present in the Constitution: Congress is automatically dissolved--and any ongoing session ended--every two years by termination of the terms of one-third of Senators and all members of the House. U.S. Const. art. I, § 2, cl. 1; id. art. I, § 3, cls. 1-2. These dissolutions end a session and, following elections, begin another session in a new Congress, see Jefferson, supra, § 51 at 166 (―A dissolution certainly closes one session; and the meeting of the new Congress begins another.‖)-- just as the king's dissolution, or the dissolution by the passage of time, did for the English Parliament, 1 William Blackstone, Commentaries *189.

In light of these parallels, it is tempting to say that ―Recess of the Senate‖ corresponds with prorogations and thus must refer only to terminations of sessions and the intersession breaks that follow them. But this argument proves too much. Even though the Constitution uses ―adjournment‖ to mean breaks within a session, it also uses the term to mean breaks between sessions. The Supreme Court held in the Pocket Veto Case, 279 U.S. 655 (1929), that ―adjournment‖ in Article I, § 7, clause 2 of the Constitution is any break in business ―that prevents the President from returning the bill to the House in which it originated within the time allowed.‖ Id. at 680 (internal quotation marks omitted); see also U.S. Const. art. I, § 7, cl. 2 (providing that a bill passed by Congress becomes law after ten days after presentment to the president ―unless the Congress by their adjournment prevent its return‖). This definition does not distinguish between breaks within sessions and those between sessions. See id.; accord Rappaport, supra, at 1551 n.198 (explaining that ―the Framers used the term ‗adjournment' with a broader meaning than it had traditionally under English law‖). This means that the Constitution does not simply adopt ―adjournment‖ as it was used in Parliament and correspondingly suggests that ―Recess of the Senate‖ is not simply prorogation by another name.

Understanding the differences between prorogation and adjournment is helpful, however, to make sense of ratification-era state constitutions.*fn13 Eight of these constitutions use the word ―recess.‖ Six contain the same ambiguity found in the federal Constitution.*fn14 The word at 16-18 & n.11. These sources are, however, frequently relied on by the Supreme Court to decide the meaning of Constitution. See, e.g., Heller, 128 S. Ct. at 585-86; ―recess‖ in the Massachusetts and New Hampshire constitutions, however, includes only intersession breaks. See Rappaport, supra, at 1552. These constitutions have similar provisions that provided their respective governors with different powers depending on whether the legislature was in ―session‖ or ―in recess.‖ Mass. Const. of 1780, pt. 2, ch 2, § 1, art. V; N.H. Const. of 1792 pt. 2, § L. When the legislatures were in ―session,‖ the governors had the power either to prorogue or to adjourn them. See, e.g., Mass. Const. of 1780, pt. 2, ch. 2, § 1 (―The Governor . . . shall have full power and authority, during the session of the General Court [i.e., the Massachusetts legislature], to adjourn or prorogue the same to any time the two Houses shall desire‖). But when the legislatures were ―in recess,‖ the governors only had the power to prorogue them--or, in simpler terms, extend the duration of the intersession recess, see Johnson, 2 A Dictionary of the English Language 412 (defining ―prorogue‖ as ―to withhold a session of parliament to a distant time.‖). See, e.g., Mass. Const. of 1780, pt.2, ch 2, § 1 (providing the governor, ―in the recess of the said ...

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