The Supreme Court has settled the question surrounding the validity of acting NLRB general counsel Lafe Solomon’s official actions. Yesterday, in National Labor Relations Board v. SW General, Inc., 580 U.S. –, Case Nos. 14-1107, 14-1121 (Mar. 21, 2017), the Court affirmed the D.C. Circuit’s opinion that Solomon’s continued service in his acting capacity, after President Obama nominated him to permanent status, violated the Federal Vacancies Reform Act (“FVRA”).
The FVRA grants the President limited authority to appoint acting officials to temporarily perform the functions of a vacant office without first obtaining otherwise required Senate approval. 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 been serving with Senate confirmation—resigned. President Obama directed Solomon to serve temporarily as the NLRB’s acting general counsel, citing the FVRA as the basis for the appointment. On January 5, 2011, he nominated Solomon to serve as the NLRB’s general counsel on a permanent basis, but the Senate did not act on the nomination during the 112th Congress, and returned the nomination to the President when the legislative session expired. President Obama resubmitted Solomon’s name for consideration in the spring of 2013 but the nomination suffered the same fate. The President ultimately withdrew Solomon’s nomination and put forward a new candidate, whom the Senate confirmed on October 29, 2013. Throughout this entire period, Solomon served as the NLRB’s acting general counsel.
Solomon’s nomination to permanent status, the Court concluded by a 6-2 margin, rendered him ineligible to serve in acting status. The consequence? While most actions taken in violation of the FVRA are void ab initio, a statutory exception for the NLRB general counsel caused the D.C. Circuit to opine that such actions are voidable, not void. The Supreme Court recognized the D.C. Circuit’s conclusion in this regard, but declined to consider the issue further because the NLRB did not seek certiorari on the issue. Another possible development is that the current General Counsel, Richard Griffin, an appointee of President Obama and philosophical ally of Mr. Solomon, could attempt to “ratify” all decisions made by the GC during the period in question — as the Board attempted following the Supreme Court’s Noel Canning decision. This effort itself would be subject to further legal challenge, perhaps complicated further by the unsettled state of the Board’s current and near future composition and political balance.
In the meantime, parties who found themselves the subject of complaints issued during Mr. Solomon’s invalid tenure, or who currently face Board proceedings based, in any part, upon purported precedent from that era, should certainly review all legal options in light of this SCOTUS ruling.