NEW YORK Jan 30 A home builder has asked a
federal appeals court to throw out a National Labor Relations
Board ruling, citing Friday's decision by another appeals court
that President Barack Obama violated the U.S. Constitution when
he filled three board positions using recess appointments in
The argument, made in a letter filed Tuesday by home builder
D.R. Horton, Inc with the 5th U.S. Circuit Court of
Appeals in New Orleans, appears to be one of the first attempts
to extend Friday's ruling from the District of Columbia circuit
court to other recess appointments made prior to 2012.
The District of Columbia court said Friday that the Senate
was not truly in recess in January 2012 when Obama named the
three new members, a decision that could significantly limit the
power of the president to sidestep Congress when pushing future
The letter from D.R. Horton, however, calls into question
whether the decision could impact past appointments as well.
The company claims Obama's recess appointment of Craig
Becker to the labor board in 2010 should also be considered
invalid, relying on the D.C. circuit's reasoning.
Not counting Becker, the board had only two members, less
than a quorum, when it issued a ruling on Jan. 3, 2012, in the
Horton case prohibiting companies from requiring their workers
to waive their right to bring collective action, the company
Different circuit courts are not obligated to follow one
Nancy Cleeland, a spokeswoman for the board, declined to
comment. Ron Chapman, a lawyer for D.R. Horton, did not
immediately have a comment.
Other companies have already begun citing the D.C. circuit's
decision in challenging NLRB rulings made after Obama's three
Entergy Mississippi, a unit of Entergy Corp, filed a
brief Monday in the 5th circuit arguing in part that a NLRB
ruling in August 2012 concerning whether its dispatchers are
bargaining-unit workers should be invalidated because of the
The case is D.R. Horton Inc. v. NLRB, U.S. Court of Appeals
for the Fifth Circuit, No. 12-60031.