On August 7, 2015, the U.S. Court of Appeals for the District of Columbia held that Lafe Solomon, the former Acting General Counsel of the National Labor Relations Board, served in violation of the Federal Vacancies Reform Act of 1998 (“FVRA”) from January 5, 2011 to November 4, 2013. In SW General, Inc. v. NLRB, the Board found that the employer had violated Section 8(a)(5) of the National Labor Relations Act by discontinuing longevity payments while the parties were negotiating a new collective bargaining agreement. The complaint upon which the violation was found was issued by a Regional Director on January 31, 2013, and the Board affirmed the administrative law judge’s decision in May 2014 without addressing the employer’s FVRA challenge.

The employer contended that since January 2011, Acting General Counsel Solomon served in violation of the FVRA and, thus, the ULP complaint issued against it in January 2013 was invalid.

In June 2010, Ronald Meisburg resigned as NLRB General Counsel. The President directed Lafe Solomon, then-Director of the NLRB’s Office of Representation Appeals, to serve as the Acting General Counsel in Meisburg’s stead….The President cited the FVRA as the authority for Solomon’s appointment….On January 5, 2011–six months into Solomon’s temporary appointment–the President nominated him to be General Counsel….The Senate, however, returned Solomon’s nomination….The President resubmitted Solomon’s nomination on May 24, 2013…but ultimately withdrew it and nominated Richard Griffin instead, who was confirmed by the Senate on October 29, 2013….All told, Solomon served as Acting General Counsel from June 21, 2010 to November 4, 2013.

Consequently, the employer argued that Solomon became ineligible to serve as Acting General Counsel once the President nominated him to be General Counsel. The D.C. Circuit agreed.

Under subsection (a) of the FVRA, there are generally three categories of people who may serve temporarily in an acting capacity for a  vacant presidentially appointed, Senate-confirmed position (“PAS”):

  1. “the first assistant to the office of such [PAS] officer” (5 U.S.C. § 3345(a)(1));
  2. other PAS officers designated by the President (5 U.S.C. § 3345(a)(2)); and
  3. “an officer or employee of such Executive agency” if such officer or employee served in a position for the agency for not less than 90 days in the preceding year and the rate of pay for such position “is equal to or greater than the minimum rate of pay payable for a position at GS-15 of the General Schedule” (5 U.S.C. § 3345(a)(3)).

Prior to Solomon’s appointment as the Acting General Counsel on June 21, 2010, Solomon directed the NLRB’s Office of Representation Appeals for approximately ten years. As such, Solomon did not qualify under the first or second categories, but he did fall into the third category.

In finding Solomon’s appointment improper, the Court focused on subsection (b) of the FVRA, which states:

Notwithstanding subsection (a)(1), a person may not serve as an acting officer for an office under this section, if–

(A)  during the 365-day period preceding the date of the death, resignation, or beginning of inability to serve, such person–

(i) did not serve in the position of first assistant to the office of such officer; or

(ii) served in the position of first assistant to the office of such officer for less than 90 days; and

(B) the President submits a nomination of such person to the Senate for appointment to such office.

5 U.S.C. § 3345(b)(1) (emphasis added).

Because Solomon did not serve in the position of first assistant, the employer argued that his appointment under the FVRA became invalid once the President submitted Solomon’s nomination to the Senate. The Board, however, argued that subsection (b) did not apply to Solomon by virtue of the “[n]othwithstanding subsection (a)(1)” language, but the Court found that the employer “has the better argument” as “the text of the FVRA plainly supports” the employer. As a result, the Court held that because Solomon was never a first assistant and the President nominated him to be General Counsel on January 5, 2011, the FVRA prohibited him from serving as Acting General Counsel from that date forward.

Finding Solomon’s FVRA appointment invalid from January 5, 2013 to November 4, 2013, the Court evaluated whether the FVRA violation was harmless or whether Solomon’s action was ultimately ratified by the NLRB.

The Board nonetheless argued that, because of the type of ULP charged against [the employer] was not “of substantial legal interest” to Acting General Counsel Solomon, that particular complaint did not require submission to the General Counsel’s Office for review beforehand….[The employer] rightly points out, however, that a different General Counsel may have imposed different requirements and procedures during his tenure….Accordingly, notwithstanding the final Board order, we cannot be confident that the complaint against [the employer] would have issued under an Acting General Counsel other than Solomon….Our uncertainty is sufficient to conclude that [the employer] has carried its burden of demonstrating that the FVRA violation is non-harmless under the Administrative Procedures Act….We therefore conclude that the NLRB order did not ratify or otherwise render harmless the FVRA defect in the ULP complaint against [the employer].

Although the D.C. Circuit invalidated most of Solomon’s tenure as Acting General Counsel, the Court warns that it does not expect its decision “to retroactively undermine a host of NLRB decisions,” indicating that employers that timely failed to raise a FVRA objection would likely not “enjoy the same success.”