On Remand from the Supreme Court of the United States. (S.Ct. No. 13-1103).
PETITION FOR REVIEW GRANTED IN PART AND DENIED IN PART; CROSS-APPLICATION FOR ENFORCEMENT GRANTED IN PART AND DENIED IN PART.
John J. Coleman, III, Marcel L. Debruge, BURR & FORMAN LLP, Birmingham, Alabama, for Gestamp South Carolina, L.L.C.
Stuart F. Delery, Assistant Attorney General, Beth S. Brinkmann, Deputy Assistant Attorney General, Douglas N. Letter, Scott R. McIntosh, Melissa N. Patterson, Benjamin M. Shultz, Dara S. Smith, Attorneys, Appellate Staff, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C.; Richard F. Griffin, Jr., General Counsel, Jennifer Abruzzo, Deputy General Counsel, John H. Ferguson, Associate General Counsel, Linda Dreeben, Deputy Associate General Counsel, Usha Dheenan, Supervisory Attorney, NATIONAL LABOR RELATIONS BOARD, Washington, D.C., for the Board.
Before TRAXLER, Chief Judge, KEENAN, Circuit Judge, and R. Bryan HARWELL, United States District Judge for the District of South Carolina, sitting by designation. Chief Judge Traxler wrote the opinion, in which Judge Keenan and Judge Harwell joined.
TRAXLER, Chief Judge:
Gestamp South Carolina, LLC, petitioned for review of an order of the National Labor Relations Board (" the NLRB" or " the Board" ) affirming the decision of an administrative law judge (" ALJ" ) finding that Gestamp discharged employees David Anthony Kingsmore and Reggie Alexander in violation of the National Labor Relations Act (" the NLRA" ) and that Gestamp was liable for another violation of the NLRA as well. The Board cross-applied for enforcement of the order.
In an earlier decision, we granted Gestamp's petition for review, denied the Board's cross-application for enforcement, vacated the Board's decision, and remanded the case for further proceedings, based upon our determination that the recess appointment of Board Member Craig Becker deprived the Board of a valid quorum to act when it issued its order. The Supreme Court subsequently granted the Board's petition for certiorari, vacated our opinion, and remanded for further consideration in light of its decision in NLRB v. Noel Canning, 134 S.Ct. 2550, 189 L.Ed.2d 538 (2014).
For the reasons set forth below, we now conclude that Board Member Becker's recess appointment was valid. We grant Gestamp's petition for review in part and deny it in part, and we grant the Board's cross-application for enforcement in part and deny it in part.
In January 2013, after oral argument had been held in this case, Gestamp raised as an additional issue the question of whether the Board had a quorum of validly appointed Board Members when it issued its order. Specifically, Gestamp argued that Board Member Craig Becker had been unconstitutionally appointed to the Board during an intra-session recess of the Senate in March 2010, in violation of the Recess Appointments Clause. See U.S. Const. art. II, § 2, cl. 3.
Shortly thereafter, this court issued an opinion in a separate case finding invalid three different recess appointments that had been made to the Board during a three-day intra-session recess in January 2012. See NLRB v. Enterprise Leasing Co. Southeast, 722 F.3d 609, 652 (4th Cir. 2013). Among other things, the Enterprise Leasing panel held that the Recess
Appointments Clause permits the President to make such appointments only during inter-session Senate recesses, not during intra-session recesses. See id.; see also NLRB v. New Vista Nursing & Rehab., LLC., 719 F.3d 203, 208, 221 (3d Cir. 2013) (reh'g granted, Aug. 11, 2014); Noel Canning v. NLRB, 705 F.3d 490, 506, 403 U.S. App. D.C. 350 (D.C. Cir. 2013), aff'd on other grounds, NLRB v. Noel Canning, 134 S.Ct. 2550, 189 L.Ed.2d 538 (2014).
In October 2013, we applied Enterprise Leasing to this case and held that Board Member Becker's appointment was likewise invalid. See Gestamp v. NLRB, 547 F.App'x 164, 165 (4th Cir. 2013) (per curiam); see also New Vista, 719 F.3d at 221 (holding that " 'the Recess of the Senate' means only intersession breaks," and, therefore, " that [Board] Member Becker's appointment was invalid" ). Accordingly, we vacated the Board's decision, and remanded the case to the NLRB for further proceedings. The Board then petitioned the United States Supreme Court for a writ of certiorari.
In NLRB v. Noel Canning, 134 S.Ct. 2550, 189 L.Ed.2d 538 (2014), the Supreme Court affirmed the D.C. Circuit's determination that the recess appointments of the three Board Members at issue in that case were invalid. In doing so, however, the Supreme Court disagreed with the lower court's reasoning, making it clear that the Recess Appointments Clause applies to both inter-session recesses and " intra-session recess[es] of substantial length," id. at 2561, as well as to Board vacancies that occur prior to or during the recess, id. at 2567. The Court additionally held, however, that Senate " pro forma sessions" must be considered, id. at 2574, and affirmed the judgment because the resulting three-day recess at issue there was " too short a time to bring [the] recess within the scope of the Clause." Id. at 2557; see id. at 2578.
Relying heavily on historical practice, the Court confronted the " interpretive problem [in] determining how long a recess must be in order to fall within the Clause," id. at 2565-66, and concluded " that a recess of more than 3 days but less than 10 days [would be] presumptively too short to fall within the Clause," id. at 2567. The addition of " the word 'presumptively," the Court explained, was " to leave open the possibility that some very unusual circumstance -- a national catastrophe, for instance, that renders the Senate unavailable but calls for an urgent response -- could demand the exercise of the recess-appointment power during a shorter break." Id.
Shortly thereafter, the Supreme Court granted the Board's petition for a writ of certiorari in this case, vacated our judgment, and remanded for further consideration in light of its decision in Noel Canning. See NLRB v. Gestamp, 134 S.Ct. 2901, 189 L.Ed.2d 853 (2014). In contrast to the recess appointments of the Board members at issue in Noel Canning and Enterprise Leasing, which took place over a three-day recess in January 2012, the recess appointment of Board Member Becker took place over a two-week recess in March 2010. Accordingly, we now hold that Board Member Becker was validly appointed to the Board when it issued the order in this case. See
Teamsters Loal Union No. 455 v. NLRB,765 F.3d 1198, 2014 WL 4214920, at *2 (10th
Cir. 2014) (noting that because Board Member Becker " was appointed during an intra-session recess exceeding two weeks . .., there seems little reason to [now] doubt the validity of [his] appointment." ). Having already had the benefit of full briefing and oral argument on the remaining questions presented in this case, we ...