At page 1226 [W]hat we understand to be the main purpose of the Recess Appointments Clause — to enable the President to fill vacancies to assure the proper functioning of our government — supports reading both intrasession recesses and intersession recesses as within the correct scope of the Clause.3 citing cases
- Nat'l Labor Relations Bd. v. New Vista Nursing & Rehab., 719 F.3d 203 (3d Cir. 2013). ([W]hat we understand to be the main purpose of the Recess Appointments Clause — to enable the President to fill vacancies to assure the proper functioning of our government — supports reading both intrasession recesses…)
- Nat'l Labor Relations Bd. v. Enter. Leasing Co. Se., LLC, 722 F.3d 609 (4th Cir. 2013). Id. at 1226.
- Overstreet ex rel. Nat'l Labor Relations Bd. v. SFTC, LLC, 943 F. Supp. 2d 1296 (D.N.M. 2013).(President can use Recess Appointment Clause during intrasession recesses and regardless of when the vacancy arises)
At page 1222 cited at this page1 citing case
- United States v. Paul Johnson, Jr., 921 F.3d 991 (11th Cir. 2019).See, e.g., United States v. Gecas, 120 F.3d 1419, 1435-57 (11th Cir. 1997) (en banc) (Fifth Amendment privilege against self- incrimination); Evans v. Stephens, 387 F.3d 1220, 1222-27 (11th Cir. 2004) (en banc) (President’s power to “fill…
At page 1227 holding President did not exceed constitutional authority in making recess judicial appointment1 citing case
- Schwartz Partners Packaging, LLC v. Nat'l Labor Relations Bd., 12 F. Supp. 3d 73 (D.D.C. 2014).(holding President did not exceed constitutional authority in making recess judicial appointment)
At page 1234 cited at this page1 citing case
- Nat'l Labor Relations Bd. v. RELCO Locomotives, Inc., 734 F.3d 764 (8th Cir. 2013). The Court stated that it had discretion to hear the case and would do so I do not believe that the Constitution permits a President to frustrate in this way the careful separation of powers intended by the framers. 387 F.3d at 1234 (11th C…
At page 1238 cited at this page1 citing case
- Abbington v. Berryhill, No. 1:17-cv-00552 (S.D. Ala. Dec. 13, 2018).See United States v. Jones, 74 M.J. 95, 96 (C.A.A.F. 2015) (“Citing Ryder…, the Government urges that we treat the issue of Mr. Soybel’s appointment[ to the United States Air circumstance in the present case.”); Evans v. Stephens, 387 F.3d…
Other citing cases
- Recess Appointments Amid Pro Forma Senate Sessions (OLC 2012).
- Lawfulness of Recess Appointments During a Recess of the Senate Notwithstanding Periodic Pro Forma Sessions (OLC 2012).
- Bhatti v. Fed. Hous. Fin. Agency, 332 F. Supp. 3d 1206 (D. Me. 2018).
- In re Franks, 815 F.3d 1281 (11th Cir. 2016).
- Ambassador Servs., Inc. v. Nat'l Labor Relations Bd., 544 F. App'x 846 (11th Cir. 2013).
- Canning v. Nat'l Labor Relations Bd., 705 F.3d 490 (D.C. Cir. 2013).
- Evans v. Stephens, 544 U.S. 942 (2005).
v.
Stephens
Peter EVANS, Detree Jordan, Plaintiffs-Appellees,
v.
CITY OF ZEBULON, GA, Robert Loomis, individually and in his official capacity as Police Chief of the City of Zebulon, GA, Defendants,
Denis Stephens, Defendant-Appellant.
No. 02-16424.
United States Court of Appeals, Eleventh Circuit.
March 31, 2004.
Richard A. Carothers, Thomas M. Mitchell, Carothers & Mitchell, LLC, Buford, GA, for Stephens.
Dovre Christian Jensen, Law Office of Chris Jensen, Norman J. Slawsky, Jacobs & Slawsky, P.A., Clark E. Gulley, Atlanta, GA, Thomas F. Richardson, Norman Carter Pearson, III, Chambless, Higdon & Carson, Macon, GA, Laurel E. Henderson, Laurel E. Henderson, P.C., Decatur, GA, for Plaintiffs-Appellees.
Appeal from the United States District Court for the Northern District of Georgia (No. 01-00009-CV-JTC-3); Jack T. Camp, Judge.
(Opinion Nov. 18, 2003, 351 F.3d 485, 11th Cir.2003)
Before EDMONDSON, Chief Judge, and TJOFLAT, ANDERSON, BIRCH, DUBINA, BLACK, CARNES, BARKETT, HULL, MARCUS, WILSON and PRYOR, Circuit Judges.
BY THE COURT:
A member of this Court in active service having requested a poll on the suggestion of rehearing en banc and a majority of the judges in this Court in active service having voted in favor of granting a rehearing en banc,
IT IS ORDERED that the above cause shall be reheard by this court en banc. The previous panel's opinion is hereby VACATED.