This section contains the nature of the case and procedural background.

P found that Noel (D), had unlawfully refused to reduce to writing and execute a collective-bargaining agreement with a labor union. The Board ordered D to execute the agreement and to make employees whole for any losses. D asked the Court of Appeals to set P’s order aside. It claimed that three of the five Board members had been invalidly appointed, leaving the Board without the three lawfully appointed members necessary for it to act. D argued that the Recess Appointments Clause did not authorize those appointments. D pointed out that on December 17, 2011, the Senate, by unanimous consent, had adopted a resolution providing that it would take a series of brief recesses beginning the following day. The Senate held pro forma sessions every Tuesday and Friday until it returned for ordinary business on January 23, 2012. The President’s January 4 appointments were made between the January 3 and January 6 pro forma sessions. In D’s view, each pro forma session terminated the immediately preceding recess. Accordingly, the appointments were made during a 3-day adjournment, which is not long enough to trigger the Recess Appointments Clause. The Court of Appeals held that the Clause’s words “the recess of the Senate” do not include recesses that occur within a formal session of Congress, i.e., intra-session recesses. Rather those words apply only to recesses between those formal sessions, i.e., inter-session recesses. The Court of Appeals also held that the phrase “vacancies that may happen during the recess” applies only to vacancies that come into existence during a recess. The Court of Appeals held for D and P appealed.

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