case law update

The Supreme Court Holds That Presidential Nominated Appointees Are Ineligible To Also Serve In An Acting Capacity In a Different Position

This week, the Supreme Court held that the Federal Vacancies Reform Act of 1998 (FVRA) prohibits persons who the President nominates for appointment to be placed in positions in acting capacities while awaiting confirmation by the Senate.

The National Labor Relations Board (NLRB) is charged with administering the National Labor Relations Act. By statute, its general counsel must be appointed by the President with the advice and consent of the Senate.

In June 2010, the NLRB’s general counsel resigned. The FVRA permits three categories of Government officials to perform acting service in a vacant office that requires Presidential appointment and Senate confirmation (PAS office). Section 3345(a)(1) prescribes a general rule that if a person serving in a PAS office dies, resigns, or is otherwise unable to perform his duties, the first assistant to that office “shall perform” the office’s “functions and duties … temporarily in an acting capacity.” Subsection (a)(2) provides that “notwithstanding paragraph (1),” the President “may direct a person” who already serves in a PAS office to “perform the functions and duties of the vacant office temporarily in an acting capacity.” Subsection (a)(3) adds that “notwithstanding paragraph (1),” the President “may direct” a person to perform acting duties if the person served in a senior position in the relevant agency for at least 90 days in the 365-day period preceding the vacancy.

The President directed Lafe Solomon to serve temporarily as the NLRB’s acting general counsel, citing to the FVRA as his basis for the appointment. On January 5, 2011, the President also nominated Solomon to serve as the NLRB’s general counsel on a permanent basis. However, the Senate did not act upon the nomination during the 112th Congress, so it was returned to the President when the legislative session expired. The President submitted Solomon’s name again in the spring of 2013, but without avail. Therefore, the President ultimately withdrew Solomon’s nomination and put forward a new candidate, who the Senate confirmed on October 29, 2013. During this period of time, Solomon served as the NLRB’s acting general counsel.

In January 2013, an NLRB Regional Director, exercising authority on Solomon’s behalf, issued a complaint alleging that respondent SW General, Inc. had improperly failed to pay certain bonuses to long-term employees. An Administrative Law Judge concluded that SW General committed unfair labor practices, and the NLRB agreed.

SW General filed a petition for review in the U.S. Court of Appeals for the District of Columbia Circuit arguing that the unfair labor practices complaint was invalid because Solomon could not legally perform the duties of general counsel after having been nominated to fill that position. The NLRB contended that section 3345(b)(1) of the FVRA applies only to first assistants who automatically assume acting duties under subsection (a)(1), not to acting officers who serve under (a)(2) or (a)(3). Subsection (b)(1) provides that “a person may not serve as an acting officer for an office under this section” if the President nominates him for the vacant PAS office and during the 365-day period preceding the vacancy, the person “did not serve in the position of first assistant” or “served in [that] position … for less than 90 days.”

The Court of Appeals granted SW General’s petition for review and vacated the NLRB’s order, finding that Solomon became “ineligible to serve as Acting General Counsel once the President nominated him to be General Counsel.” The Supreme court granted certiorari on this issue.

Section 3345 makes certain individuals ineligible from serving as acting officers if the President has nominated them to fill the vacant office permanently. The Court began by considering the text of the prohibition stated in subsection (b)(1). It noted the importance of the words “person” and “section” in that subsection. It stated that the word “person” encompasses anyone who performs acting duties under the FVRA, emphasizing that “first assistants are not the only ‘person[s]’ of the bunch.” When adding the words “under this section,” the Court found that the language clarifies that subsection (b)(1) applies to all persons serving under section 3345. It noted that had Congress could have used clearer language if it intended subsection (b)(1) to apply only to first assistants acting under subsection (a)(1). Thus, the Supreme Court concluded that the prohibition in subsection (b)(1) applies to anyone performing acting service under the FVRA.

While the NLRB contended that legislative history, purpose, and post-enactment practice demonstrated that subsection (b)(1) applies only to first assistants, the Court rejected this argument. The Court stated that because the “text is clear,” it did not need to consider this “extra-textual evidence.” The Court noted that the NLRB supported its interpretation with post-enactment practice. In particular, the NLRB cited the fact that three Presidents have, without congressional objection, submitted the nominations of 112 individuals serving as acting officers under subsections (a)(2) and (a)(3). The Court determined that Congress’s failure to speak up does not imply that it acquiesced in the NLRB’s interpretation.

The Court found that Solomon’s continued service after the President submitted his nomination to fill that position violated the FVRA. Solomon was appointed as acting general counsel under subsection (a)(3). Once the President submitted his nomination to fill that position in a permanent capacity, subsection (b)(1) prohibited Solomon from continuing his acting service. As such, the Supreme Court affirmed the judgment of the Court of Appeals.

Read the full case: NLRB v. SW General, Inc.


This case law update was written by Michael J. Sgarlat, associate attorney, Shaw Bransford & Roth, PC.

For thirty years, Shaw Bransford & Roth P.C. has provided superior representation on a wide range of federal employment law issues, from representing federal employees nationwide in administrative investigations, disciplinary and performance actions, and Bivens lawsuits, to handling security clearance adjudications and employment discrimination cases.

Posted in Case Law Update

Tags: Supreme Court, Senate


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