The D.C. Circuit cites Edmund Randolph, the first Attorney General, on what "happen" means.

Scene:    Snappy sits at the bar, perhaps on Key West, Bitey on the stool next to her. A volume of Through the Looking-Glass, and What Alice Found There protrudes from Snappy's satchel.

Bitey:    Mmmm, mmmm, good! I sure do like this Maharajah IPA you ordered for me, Snaps. It rocks!

Snappy:    'Twas brillig.

Bitey:    You mean that new ruling by the D.C. Circuit? On recess appointments? Last week?

Snappy:    None other.

Bitey:    Yeah, that stunned me!

Snappy:    How do you mean?

Bitey:    How Their Honors went so far out of their way.

Snappy:    To do what?

Bitey:    To cut back on when a President can appoint people to posts without the Senate's okay, while it dozes.

Snappy:    Explain.

Bitey:    Okay.

The case dealt with a Pepsi bottler's gripe over a ruling in favor of its employees' union by an admininstrative law judge. The ALJ found that the bottler — Noel Canning — had agreed to a pay increase, although it claimed it didn't agree. The NLRB upheld the decision.

Snappy:    Bor-ing. Don't test my patience, Bitey.

Bitey:    Ow! It hurts when you whack my snout like that, Snapster! Noel Canning never told the Board that it (the Board) didn't have power to okay the ALJ's ruling because three of the five members had gotten unconstitutional "recess appointments". But the court of appeals panel reached that issue anyway.

Snappy:    So what? That sounds like a pretty basic problem that a court should get to whether the loser argued it or not.

Bitey:    Except that the statute that allows the court to second-guess NLRB edicts says it can't review on the basis of arguments that the parties didn't raise before the Board, except in cases of "extraordinary circumstances". The panel didn't explain what seemed "extraordinary" about the failure to make the no-power argument to the Board. It called the circumstances "extraordinary" because it agreed the Board lacked power.

Snappy:    Beware the Jabberwock, my son.

Bitey:    I always do!

Any-hoo, the panel wouldn't have gotten to the "extraordinary" question if it hadn't rejected Noel Canning's complaint on the merits. Which it did in part because Noel Canning hadn't raised another argument with the Board (about what law applied).

Snappy:    The jaws that bite.

Bitey:    You got me there!

So, the panel cleared a path to the Constitutional Issue — whether the Recess Appointments Clause allowed President Obama to appoint three NLRB members during hiatuses in full-bore meetings of the Senate.

Snappy:    The claws that catch.

Bitey:    Amen!

The court did a two-fer on the CI. It said, first, that "the Recess" in Article II, Section 2, Clause 3 of the Constitution (it provides that "[t]he President shall have Power to fill up all Vacancies that may happen during the Recess of the Senate") means the time after a "Session" of the Senate ends and before a new one starts. Instead of, you know, whenever the Senate has quit meeting to do business, whether during a Session or after.

Snappy:    The frumious Bandersnatch!

Bitey:    The court disagreed with the Eleventh Circuit's contrary ruling in Evans v. Stephens, 387 F.3d 1220, 1224 (11th Cir. 2004), cert. denied, 544 U.S. 942 (2005). It also said that Presidents don't have a bit of leeway in deciding whether "the Recess" has begun because that would give "the President free rein to appoint his desired nominees at any time he pleases, whether that time be a weekend, lunch, or even when the Senate is in session and he is merely displeased with its inaction." Noel Canning v. Nat'l Labor Relations Bd., No. 12-1115, slip op. 26 (D.C. Cir. Jan. 25, 2013).

Snappy:    Came whiffling through the tulgey wood, and burbled as it came!

Bitey:    Yep. Then it got really interesting.

Snappy:    The vorpal blade went snicker-snack!

Bitey:    Indeed.

The panel Went Further. As in Unnecessarily. Noting that "our holding on the first constitutional argument of the petitioner is sufficient to compel a decision vacating the Board's order", it reached out to rule on what "happen during the Recess" means in the Recess Appointments Clause. It held that — contrary to the practice of Presidents and Congresses since 1820 or so — "happen" equals "arise". Which conflicts with rulings by three other circuits. Evans v. Stephens, 387 F.3d at 1226-27; United States v. Woodley, 751 F.2d 1008, 1012-13 (9th Cir. 1985); United States v. Allocco, 305 F.2d 704, 709-15 (2d Cir. 1962).

Snappy:    He left it dead.

Bitey:    Sure did!

Because if it has to "arise during the Recess" instead of "exist during the Recess", the RAC will have a very small ambit. 

Snappy:    And with its head.

Bitey:    So, to sum up, the panel (a) would not have reached any constitutional issue if it had not upheld the Board's decision on the merits, in part by refusing to consider a choice-of-law argument that Noel Canning failed to make to the Board; (b) didn't refuse to consider Noel Canning's constitutional argument despite the fact that it failed to make the argument to the Board; (c) ruled that Presidents can't make recess appointments except between Sessions of the Senate, disagreeing with the only circuit that has addressed the question; and (d) further ruled, unnecessarily and in contradiction of three other circuits, that Presidents can't make recess appointments unless the vacancies that they fill with recess appointees "arise" between Senate Sessions.

Snappy:    He went galumphing back.

Bitey:    Man, I love this Maharajah!

Email this postShare this post on LinkedIn
Photo of Barry Barnett Barry Barnett

Clients and colleagues call Barry Barnett an “incredibly gifted lawyer” (Chambers and Partners) who is “magic in the courtroom” (Who’s Who Legal), “the top antitrust lawyer in Texas” (Chambers and Partners), and “a person of unquestioned integrity” (David J. Beck, founder of Beck…

Clients and colleagues call Barry Barnett an “incredibly gifted lawyer” (Chambers and Partners) who is “magic in the courtroom” (Who’s Who Legal), “the top antitrust lawyer in Texas” (Chambers and Partners), and “a person of unquestioned integrity” (David J. Beck, founder of Beck Redden).

Barnett is a Fellow in the American College of Trial Lawyers, and Lawdragon has named him one of the top 500 lawyers in the United States three years in a row. Best Lawyers in America has honored him as “Lawyer of the Year” for Bet-the-Company Litigation (2019 and 2017) and Patent Litigation (2020) in Houston. Based in Texas and New York, Barnett has tried complex business disputes across the United States.

Barnett’s background, training, and experience make him indispensable to his clients. The small-town son of a Texas roughneck and grandson of a Texas sharecropper, Barnett “developed an unusual common sense about people, their motivations, and their dilemmas,” according to former client Michael Lewis.

Barnett has been historically recognized for his effectiveness and judgment. His peers chose him, for example, to the American College of Trial Lawyers and American Law Institute. His decades of trial and appellate work representing both plaintiffs and defendants have made him a master strategist and nimble tactician in complex disputes.

Barnett focuses on enforcement of antitrust laws, the “Magna Carta of free enterprise,” in Supreme Court Justice Thurgood Marshall’s memorable phrase. “Barry is one of the nation’s outstanding antitrust lawyers,” according to Joseph Goldberg, a member of the Private Antitrust Enforcement Hall of Fame. Named among Texas’s top ten antitrust lawyers of 2023, Business Today calls Barnett a “trailblazer” among the “distinguished legal minds” who “dedicate their skill and expertise to the maintenance of healthy competition in various sectors” of the Lone Star State’s booming economy. Barnett is also adept in energy and intellectual property matters and has battled for clients against a Who’s Who list of corporate behemoths, including Abbott Labs, Alcoa, Apple, AT&T, BlackBerry, Broadcom, Comcast, Dow, JPMorgan Chase, Samsung, and Visa.

Barnett commands a courtroom with calm and credibility and “is the perfect lawyer for bet the company litigation,” said Scott Regan, General Counsel of former client Whiting Petroleum. His performance before the Supreme Court in Comcast Corp. v. Behrend prompted the Court to withdraw the question on which it had granted review. The judge in a trial involving mobile phone technology called Barnett “one of the best” and that his opening statement the finest he had ever seen. Another trial judge told Barnett minutes after a jury returned a favorable verdict against the county’s biggest employer that he was one of the two best trial lawyers he’d ever come across—adding that the other one was dead.

A versatile trial lawyer, Barnett knows how to handle a case all the way from strategic pre-suit planning to affirmance on appeal. He’s tried cases to verdict and then briefed and argued them when they went before appellate courts, including the Second, Third, Fifth, and Tenth Circuits, the Supreme Court of Louisiana, and (in the case of Comcast Corp. v. Behrend) the Supreme Court of the United States.

Barnett is a sought-after public speaker, often serving on panels and talking about topics like the trials of antitrust class actions and techniques for streamlining complex litigation. He also comments on trends in commercial litigation and the implications of major rulings for outlets such as NPR, Reuters, Law360, Corporate Counsel, and The Dallas Morning News. He’s even appeared in a Frontline program about underfunding of state pensions, authored chapters on “Fee Arrangements” and “Techniques for Expediting and Streamlining Litigation” (the latter with Steve Susman) in the ABA’s definitive treatise on Business and Commercial Litigation in Federal Courts, 5th, and commented on How Antitrust Enforcers Might Think Like Plaintiffs’ Lawyers.

Clients and other hard graders have praised Barnett for his courtroom skills and legal acumen.

A client in a $100 million oil and gas case, which Barnett’s team won at trial and held on appeal, said Barnett and his team “presented a rare combination of strong legal intellect, common sense about right and wrong, and credibility in the courtroom.” David McCombs at Haynes and Boone said Barnett “has a natural presence that goes over well with juries and judges.”

Even former adversaries give Barnett high marks. Lead opposing counsel in a decade-long antitrust slugfest said “Barry is a highly skilled advocate. He understands what really matters in telling a narrative and does so in a very compelling manner.”

Barnett relishes opportunities to collaborate with all kinds of people. At the Center for American and International Law (CAIL), founded by a former prosecutor at Nuremberg in 1947 and headquartered in the Dallas area, he has served on the Executive Committee, co-chaired the committee that produced CAIL’s first-ever strategic plan, supported CAIL’s Institute for Law Enforcement Administration and other development efforts, and proposed formation of a new Institute for Social Justice Law. CAIL’s former President David Beck said “Barry is extremely bright” and is “very well prepared in every lawsuit or professional task he undertakes.”

Barnett is also a Trustee of the New-York Historical Society, a Sterling Fellow at Yale, a member of the Yale University Art Gallery’s Governing Board, a winner of the Class Award for his work on behalf of his college class, and a proud contributor to the Yellow Ribbon Program at Harvard Law. Barnett’s pro bono work includes leading the trial team representing people who are at greatest risk of severe illness and death as a result of being exposed to the novel coronavirus SARS-CoV-2 while being detained in the Dallas County jail—work for which he received the NGAN Legal Advocacy Fund RBG Award.

At Susman Godfrey, Barnett has served on the firm’s Executive Committee, Employment Committee, and ad hoc committees on partner compensation, succession of leadership, and revision of the firm’s partnership agreement. He also twice chaired the Practice Development Committee.

Barnett understands that clients face many pressures. Managing the stress is important, especially in matters that take years to resolve. He encourages clients to call him whenever they have a question or concern and to keep the inevitable ups and downs in perspective. He wants them to know that he will do his level best to help them achieve their goals. He also strives to foster trust and to make working with him a pleasure.

Cyrus “Skip” Marter, the General Counsel of Bonanza Creek in Denver and a former Susman Godfrey partner and client, said Barnett is “excellent about communicating with clients in a full and honest manner” and can “negotiate for his clients from a position of strength, because he is not afraid to take a case through a full trial on the merits.” Stacey Doré, the President of Hunt Utility Services and a former client, said that Barnett is “an excellent trial lawyer and the person you want to hire for your bet-the-company cases. He is client focused, responsive, and uniquely savvy about trial and settlement strategy.” A New York colleague said, “Barry is a joy to work with as co-counsel. He tackles complex procedural and factual hurdles capably, efficiently, and without drama.”

Barnett’s wide-ranging experience and calm, down-to-earth approach enable him to connect with clients, judges, jurors, witnesses, and even opposing counsel. He grew up in Nacogdoches, Texas. He co-captained his high school varsity football team as an All-East Texas middle linebacker while also serving as the Editor of Key Club’s Texas-Oklahoma District, won the Best Typist award, took the History Team to glory, and sang in the East Texas All Region Choir. As Dan Kelly of client Vistra Corp. put it, Barnett is “a great person to be around.”

Barnett is steady and loyal. He has practiced at Susman Godfrey his entire career. He and his wife Nancy live in Dallas and enjoy spending time in Houston and New York. Their daughter works for H-E-B in Houston, and their son is a Haynes and Boone transactions lawyer in Dallas.

As a member of Ivy League championship football teams in his junior and senior years at Yale and a parent of two Yalies, Barnett has no trouble choosing sides for “The Game” in November. And he knows how important fighting all the way to the end is. On his last play from scrimmage, in the waning minutes of The Game on Nov. 22, 1980, he recovered a Crimson fumble.

Yale won, 14-0.