The Supreme Court Limits “Acting” Appointments Without Senate Confirmation: NLRB’s General Counsel’s Actions Voidable

Nicholas Fortuna, March 24, 2017

On March 21, 2017, the U.S. Supreme Court ruled that the National Labor Relations Board’s (NLRB) former acting general counsel, Lafe Solomon, served in violation of the Federal Vacancies Reform Act (FVRA) when he continued in that position after President Barack Obama nominated him for a full term as General Counsel. The decision in NLRB v. SW General, Inc. invalidated the almost three-year period that Solomon served as acting general counsel while his nomination languished.

Article II of the Constitution requires that the President obtain “the Advice and Consent of the Senate” before appointing “Officers of the United States.” As a result, the responsibilities of an office requiring Presidential appointment and Senate confirmation may go unperformed if a vacancy arises and the President’s appointments are not promptly confirmed. Congress has accounted for this circumstance by authorizing the President to direct certain officials to temporarily carry out the duties of a vacant office without Senate confirmation.

The FRVA grants the President limited authority to appoint acting officials to temporarily perform the functions of a vacant office without first obtaining required Senate approval under Article II of the Constitution. The FVRA prohibits persons from serving as acting officers if the President has nominated them to fill the vacant office permanently.

In June 2010, the NLRB’s general counsel, who had previously been confirmed by the Senate, resigned. President Obama directed Solomon to serve temporarily as acting general counsel, citing the FRVA as the basis for the appointment. On January 5, 2011, the President nominated Solomon to serve as NLRB’s general counsel, but the Senate did not act on the nomination.

SW General argued that the unfair labor practice complaint filed against it under Solomon was invalid because under the FRVA, Solomon could not legally perform those duties. The D.C. Circuit Court of Appeals agreed with SW General, Inc. and the Supreme Court affirmed the D.C Circuit Court’s opinion.

The Court concluded by a 6-2 vote that the nomination rendered Solomon ineligible to serve in acting status under the FRVA. Writing for the majority, Chief Justice Roberts wrote “applying the FRVA to this case is straightforward,” and concluded that once President Obama submitted Solomon’s nomination to the Senate to fill the general counsel position, the FRVA prohibited Solomon from continuing in the acting general counsel role.

The consequence of this decision was not addressed by the Supreme Court. The D.C. Circuit Court, however, opined that the actions of Solomon are voidable not necessarily void. Another possible approach could be that the current general counsel, Richard Griffin, an appointee of President Obama and philosophical ally of Solomon, could attempt to ratify all decisions made by his office during the period in question.

The Court’s ruling will certainly have an impact on the current President, who faces the daunting task of filling a multitude of positions that are either already vacant or will become vacant as Obama’s appointees transition out. The option of naming someone as acting until they are confirmed by the Senate is now not available to the current administration.


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