July 23, 2014

NLRB Plans to Ignore D.C. Circuit Ruling Invalidating Obama Recess Appointments; Validity of Appointment of Richard Cordray as CFPB Director Also Suspect

In what appears to be the continuation of a showdown among the three branches of federal government, the D. C. Circuit ruled today that President Obama's January 2012 "recess" appointments of three members to the National Labor Relations Board ("Board") were unconstitutional.

In Noel Canning v. NLRB, No. 12-1115, the court found the appointments of Members Sharon Block and Richard Griffin and former Member Terence Flynn were invalid under the Recess Appointments Clause of the Constitution for two reasons: (1) the Senate was not actually in recess when President Obama made the appointments and (2) the appointments did not fill vacancies that arose during a Senate recess. The court concluded that the Board has lacked the three-member quorum necessary to issue decisions or rules since the expiration of the last constitutional appointment (Member Craig Becker) on January 3, 2012. The decision leaves intact only the appointment of Chairman Mark Pearce, whose term expires August 27, 2013.

The court's ruling calls into question all of the Board's decisions and rules issued, or to be issued, after January 3, 2012, particularly given the U. S. Supreme Court's 2010 New Process Steel decision invalidating nearly 600 decisions issued by the Board without the requisite three-member quorum. In spite of this precedent, the Board Chairman today issued a defiant press release disagreeing with the court's ruling, "not[ing] that this order applies to only one specific case" and stating that the Board "will continue to perform our statutory duties and issue decisions."

If the court’s decision is upheld in an expected appeal to the U. S. Supreme Court, then it will deal a severe blow to the significant effects of the aggressive, pro-labor Obama Board. Similar appeals are pending in several other federal circuit courts of appeal, including the Third and Fourth circuits.

Because the January 2012 “recess” appointment of Richard Cordray as Director of the Consumer Financial Protection Bureau was made under identical circumstances, it too is vulnerable, as well as all CFPB regulations issued under his authority. A separate appeal of that appointment is pending.

© 2014 Bracewell & Giuliani LLP

About the Author


Nancy O'Connor represents client interests in compliance and dispute management in general commercial employment settings. She has conducted numerous internal investigations. An experienced negotiator, she manages both collective bargaining and individual executive employment compensation matters and provides guidance on labor-related issues in corporate transactional matters. She is particularly familiar with employment issues in the hospitality, academic, telecommunications, federal procurement, security and energy industries. 



Boost: AJAX core statistics

Legal Disclaimer

You are responsible for reading, understanding and agreeing to the National Law Review's (NLR’s) and the National Law Forum LLC's  Terms of Use and Privacy Policy before using the National Law Review website. The National Law Review is a free to use, no-log in database of legal and business articles. The content and links on are intended for general information purposes only. Any legal analysis, legislative updates or other content and links should not be construed as legal or professional advice or a substitute for such advice. No attorney-client or confidential relationship is formed by the transmission of information between you and the National Law Review website or any of the law firms, attorneys or other professionals or organizations who include content on the National Law Review website. If you require legal or professional advice, kindly contact an attorney or other suitable professional advisor.  

Some states have laws and ethical rules regarding solicitation and advertisement practices by attorneys and/or other professionals. The National Law Review is not a law firm nor is  intended to be  a referral service for attorneys and/or other professionals. The NLR does not wish, nor does it intend, to solicit the business of anyone or to refer anyone to an attorney or other professional.  NLR does not answer legal questions nor will we refer you to an attorney or other professional if you request such information from us. 

Under certain state laws the following statements may be required on this website and we have included them in order to be in full compliance with these rules. The choice of a lawyer or other professional is an important decision and should not be based solely upon advertisements. Attorney Advertising Notice: Prior results do not guarantee a similar outcome. Statement in compliance with Texas Rules of Professional Conduct. Unless otherwise noted, attorneys are not certified by the Texas Board of Legal Specialization, nor can NLR attest to the accuracy of any notation of Legal Specialization or other Professional Credentials.

The National Law Review - National Law Forum LLC 4700 Gilbert Ave. Suite 47 #230 Western Springs, IL 60558  Telephone  (708) 357-3317 If you would ike to contact us via email please click here.