Nat'l Labor Relations Bd. v. SW Gen., Inc.
197 L. Ed. 2d 263, 2017 U.S. LEXIS 2022, 137 S. Ct. 929 (2017)
Premium Feature
Subscribe to Lexplug to listen to the Case Podcast.
Rule of Law:
Under the Federal Vacancies Reform Act of 1998 (FVRA), the prohibition in § 3345(b)(1) against a nominee serving as an acting officer applies to all persons serving as acting officers, including those directed by the President, not just to first assistants who automatically assume the role.
Facts:
- In June 2010, the office of the General Counsel of the National Labor Relations Board (NLRB), a position requiring presidential appointment and Senate confirmation, became vacant.
- The President directed Lafe Solomon, a senior employee at the NLRB, to serve as the Acting General Counsel pursuant to § 3345(a)(3) of the Federal Vacancies Reform Act (FVRA).
- On January 5, 2011, while Solomon was serving as Acting General Counsel, the President nominated him to fill the position on a permanent basis.
- Solomon's nomination was pending before the Senate for over two years before it was ultimately withdrawn.
- Throughout the period his nomination was pending, Solomon continued to serve as the Acting General Counsel.
- In January 2013, acting on Solomon's authority, an NLRB Regional Director issued an unfair labor practice complaint against SW General, Inc.
Procedural Posture:
- An NLRB Regional Director issued an unfair labor practice complaint against SW General, Inc.
- An Administrative Law Judge ruled against SW General.
- The full National Labor Relations Board affirmed the Administrative Law Judge's decision.
- SW General, Inc. filed a petition for review in the U.S. Court of Appeals for the District of Columbia Circuit.
- The Court of Appeals granted SW General's petition, holding that the Acting General Counsel's service was unlawful under the FVRA, and vacated the NLRB's order.
- The U.S. Supreme Court granted the NLRB's petition for a writ of certiorari.
Premium Content
Subscribe to Lexplug to view the complete brief
You're viewing a preview with Rule of Law, Facts, and Procedural Posture
Issue:
Does the Federal Vacancies Reform Act's prohibition in § 3345(b)(1) against a nominee serving in an acting capacity apply to all three categories of officials eligible for acting service under § 3345(a), or only to first assistants who automatically assume the office?
Opinions:
Majority - Chief Justice Roberts
Yes, the prohibition applies to all three categories of acting officers. The FVRA's text in § 3345(b)(1) broadly prohibits any 'person' from serving as an 'acting officer... under this section' while nominated for the permanent post, not just first assistants. The phrase '[n]otwithstanding subsection (a)(1)' is a conflict-resolution clause meant to clarify that the prohibition overrides the mandatory, self-executing duty of the first assistant to serve; it does not limit the prohibition's scope to only first assistants. To read it otherwise would render other parts of the statute, such as the exception in § 3345(b)(2)(A), superfluous. The legislative history is ambiguous and cannot override the clear statutory text, and the post-enactment executive practice is not sufficiently established to be given significant weight.
Concurring - Justice Thomas
Yes, the prohibition applies to all acting officers. While joining the Court's statutory interpretation, this opinion emphasizes that the dissent's reading would raise grave constitutional questions under the Appointments Clause. The NLRB General Counsel is likely a principal officer who must be appointed with the advice and consent of the Senate. Allowing the President to appoint a principal officer to serve in an acting capacity while their nomination is pending would circumvent this constitutional requirement, reinforcing the conclusion that the majority's interpretation of the statute is correct as it avoids this constitutional problem.
Dissenting - Justice Sotomayor
No, the prohibition applies only to first assistants. The plain text of § 3345(b)(1) begins with the clause '[n]otwithstanding subsection (a)(1),' which, under the canon of expressio unius est exclusio alterius, implies that the prohibition does not apply to officers serving under subsections (a)(2) or (a)(3). The legislative history, which was a response to a specific incident involving a first assistant, and the consistent post-enactment practice by the Executive Branch, which went unchallenged by Congress for over a decade, both support this narrower interpretation. The majority's reading makes other parts of the statute, particularly § 3345(c)(1) concerning reappointments, superfluous.
Analysis:
This decision significantly restricts the President's flexibility in filling vacant high-level executive positions, strengthening the Senate's constitutional advice and consent role. It prevents a President from installing a nominee in an acting role to wield the office's power, build a record, or pressure the Senate while the confirmation process is pending. The ruling clarifies a key check on executive power within the FVRA, ensuring that the temporary appointment mechanism cannot be used to bypass the Senate confirmation process for the President's chosen candidate.
