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Challengers of NLRB Recess Appointments May Lack Standing

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Mark M. Trapp

By Mark M. Trapp

A number of cases challenging President Obama’s recess appointments of three of the five members of the National Labor Relations Board (NLRB) on January 4, 2012, are currently working their way through the federal court system. Perhaps the most significant is set to be argued before the DC Circuit tomorrow. Additionally, this past Friday the U.S. Court of Appeals for the Seventh Circuit (through a panel consisting of Judges William J. Bauer, Ilana Diamond Rovner and Ann Claire Williams) heard oral argument from the parties in another NLRB recess appointment case.

The Seventh Circuit argument stemmed from the consolidation of two appeals brought by the National Right to Work Legal Defense Foundation (NRTW) on behalf of individual non-member employees, each asserting their right not to be compelled to pay dues to support a union’s political or ideological causes under CWA v. Beck, 487 U.S. 735 (1988). The petitioners challenged the validity of union policies compelling non-member employees to renew annually their objections or be “flipped” back to non-objector status and be forced to pay dues for another year before having another opportunity to object. The merits of those arguments are almost beside the point, however, as the noteworthy issue in the consolidated appeals is whether the President’s recess appointments were constitutional. If they were not, virtually all of the NLRB’s rulings since would be invalid.

That was the position argued by the NRTW before the Seventh Circuit. Interestingly, from their questions during the argument, it appeared that at least Judge Rovner and Judge Williams viewed the constitutionality of the recess appointments as a subordinate issue to the initial defense interposed by the NLRB – namely, standing. The NLRB asserted that because the individual petitioners represented by the NRTW in the appeal had never been “flipped” back to non-objector status, as they had filed annual objections in compliance with the unions’ policies, they did not have standing before the Court. Following the arguments raised by the NLRB in its brief, Judges Williams and Rovner drew distinctions between the petitioners (who had not been “flipped” back to non-objector status by the unions, as they had complied with the alleged illegal policy), and those who had been “flipped” back to non-objector status, and presumably had some redressable future harm.  In essence, consistent with the standing argument, the NLRB asserted the petitioners did not meet the requirement that they be “persons aggrieved” by a Board order under Section 10(f) of the National Labor Relations Act (NLRA).

The Court, led by Judge Rovner, seemed highly interested in this argument, and spent the majority of the allotted argument time dealing with it. Judge Williams noted that the caption of the case included only the individual petitioners, and not any of the presumably aggrieved individuals relegated to non-objector status by operation of the practices alleged to be unlawful.

Counsel for the NRTW responded by asserting that the injury suffered was real and consisted of being subjected to a policy that rejected their “continuing objections” and instead required repeated annual objections to maintain objector status.  He further noted that under common Board practice, proceedings are bifurcated, and that during the first stage a party could seek a “make whole” remedy, while specific damage components of that “make whole” remedy are addressed in a separate (and subsequent) compliance hearing. Counsel asserted that the petitioners had asked the NLRB for a “make-whole” remedy in the first stage, and noted that in NLRB practice there is “no requirement that you have to specify in advance the precise damages that you would claim if you got the make whole remedy.” Instead, he asserted, that issue would be addressed in compliance.

Judge Rovner appeared skeptical of the NRTW’s standing, and asked the most questions of the parties. The attorney arguing for the Board on the standing issue received what appeared to be a much more favorable reception from Judges Rovner and Williams, and reiterated that the petitioners had not demonstrated an injury in fact sufficient for standing purposes. The NRTW attorney responded that based on its language in an earlier order (denying a motion for consideration), the Board itself had clearly considered the parties to be asking for a “make-whole” remedy, and suggested that the Board was now simply “parsing” its own orders.

As for the merits of the constitutionality of the recess appointments, again Judge Rovner and Judge Williams were active. Judge Rovner seemed to indicate that the logic of the NRTW’s argument would allow either the House or Senate to “shut down” the appointment process entirely, and refuse to allow the President to make any appointments. She stated “I have been banging my head against a wall” because this power would not be consistent with respect for the balance of powers and “as you know, we judges are very into that issue.” Judge Rovner stated flatly that “if the Senate is not willing to remain in active session, it cannot prevent the use of the power of recess appointments.” In perhaps the most direct language of the hearing, with regard to what she referred to as the “parade of horribles” presented by the NRTW “such as presidents characterizing lunch breaks as recesses” and so forth, Judge Rovner stated “forgive me, but that’s pure fantasy in a democracy.”

Counsel responded that he hoped it was, but that these appointments marked the first time in our nation’s history that a president had asserted the authority to declare pro forma Senate sessions “invalid” and assumed the power to make a recess appointment anyway. Judge Williams asked counsel whether the Senate was “having its cake and eating it, too” by saying it was in recess in order to not undertake any business, while still maintaining pro forma sessions to deny the President the authority to make a recess appointment. Counsel responded by noting that the Senate had indicated in its order that sessions would be held, and they were held. He suggested that the government was asking the Court to function as “hall monitors” to determine whether the Senate really was in recess, and strongly asserted that the Senate must be allowed to decide for itself when it is in session and when it is not, and this was not for the President to overrule, or for the Courts to question.

Counsel for the NLRB ably addressed the merits of the recess appointments, and in response to Judge Rovner’s question regarding what standard the Court should apply to determine whether the Senate was in recess, suggested that the Court look to the text of the Constitution, and apply a “functional approach” bearing in mind a 1905 Senate report, and a 1921 report from the then Attorney General. She suggested that because during the alleged recess session the senators had no duty to attend, and there was no business enacted for the 20-day period, the Senate was in recess. Judge Williams asked her about the fact that the Senate had actually passed legislation during the term of the “recess,” to which counsel responded that that was a separate session of Congress constitutionally, given that under the Constitution a new session of Congress was mandated to begin at noon on January 3 (the day prior to the recess appointments).

Judge Rovner hinted, however, that perhaps the issue could present a “political question” which the Court should avoid, stating “Should the courts be in the business of determining whether the legislative branch or the executive branch is properly characterizing its status as a pro forma session, or a recess in any event? Or is that the type of political question that would enmesh us in the business of those branches of government, and it’s not for us to be determining?” Government counsel responded that “there is no clash between the branches” since there is “no indication that the Senate has declared that it does not view [the pro forma sessions] as a recess for purposes of the recess appointment clause.” She noted that the “official indicia” suggested that the Senate in fact viewed the period as a recess and, echoing Judge Rovner’s earlier point, suggested that the constitutional authority to appoint officers must “at all times” reside somewhere, so the NRTW’s position would “render meaningless” the ability to make appointments under the Constitution.

On rebuttal, counsel for the NRTW closed by asserting that a Senate session could not be valid for some purposes, but invalid for other purposes, and that the government argument had failed to articulate how this could be. Accordingly, he suggested the recess appointments were unconstitutional.

The panel took the case under advisement. It is hard to say what position the Court might take, but given that there are other courts set to deal with this issue in the near future, it wouldn’t be very surprising if the Court dismissed the case on standing grounds and avoided the merits entirely. It is anyone’s guess what the judges thought of the constitutionality of the recess appointments, but at least Judge Rovner and Judge Williams appeared to be leaning towards upholding the appointments.