eLABORate: Supreme Court Rules Appointment of NLRB General Counsel Violated the Law

March 22, 2017

In a 6-2 ruling, the United States Supreme Court held that former President Obama’s temporary appointment of acting National Labor Relations Board (“NLRB”) General Counsel Lafe Solomon, whose service lasted more than three years, violated the Federal Vacancies and Reform Act of 1998 (“FVRA”). The ruling came as the result of a company challenging an NLRB labor complaint issued by Solomon, claiming it was invalid because of the acting General Counsel’s improper appointment. The ruling also cast doubts as to the validity of other decisions made by Solomon during his three year tenure as General Counsel.  

By its ruling, the Supreme Court limited the President’s power to temporarily fill agency vacancies. Once the President nominates a person for an office requiring Senate confirmation, that person cannot also serve as the temporary acting officer for the agency, said the Court.

In delivering the opinion, Chief Justice John Roberts recognized that for the President to appoint “Officers of the United States,” the Senate must first confirm them. Naturally, this appointment and confirmation process is not immediate. So, to allow an agency to continue operating, the FVRA authorizes the President to appoint acting officials without Senate approval. Such acting officials temporarily perform the functions of the vacant office. The general rule, according to the Chief Justice, is that the first assistant to the vacant office becomes the acting official pending Presidential nomination and Senate confirmation. The President, however, can override the general rule. First, a person currently serving in another office that also requires Presidential nomination and Senate confirmation can be an acting official. Second, an officer or senior employee of the agency with the vacancy can also be an acting official, so long as they held their office or senior position for 90 days or more in the preceding year.

Nevertheless, the Court clarified that the FVRA prevents a person who has been nominated to permanently fill a vacant office that requires Presidential nomination and Senate confirmation from simultaneously serving as the acting official. That is, a person who is nominated for an office requiring Senate confirmation cannot temporarily serve in the same role in an acting capacity. This restriction on nominees preventing them from being an acting official at the same time is not limited to first assistants. Rather, it applies to anyone performing acting services under the FVRA.

In the end, Chief Justice Roberts rejected the argument that the Court’s ruling would hamper future Presidents and jeopardize the legitimacy of prior temporarily appointed officials. Likewise, the Chief Justice did not find it concerning that three Presidents since 1998 had nominated 112 people for offices while they also served as acting officials. “Congress’s failure to speak up [about the unlawful nominations] does not fairly imply that it has acquiesced . . . .”

National Labor Relations Board v. SW General, Inc. d/b/a Southwest Ambulance is at https://www.supremecourt.gov/opinions/16pdf/15-1251_ed9g.pdf.