How important are the titles “temporary” or “permanent” when it comes to an appointee to run a federal agency? Apparently, very important. On March 21, the U.S. Supreme Court waded back into the messy timeline of President Obama’s attempts to appoint members of the National Labor Relations Board (NLRB).
Why Are We Talking About President Obama’s Appointments?
As you may know, the President appoints the five members and the general counsel of the NLRB, and the Senate has to confirm them. In June 2010, President Obama appointed Lafe Solomon as acting general counsel of the NLRB. No one seemed to have a problem with that appointment. Issues arose, however, when President Obama decided to nominate Solomon as the permanent general counsel, which required Senate approval. While his nomination was pending, Solomon continued to serve as the acting general counsel. The Senate chose not to consider Solomon, so President Obama withdrew the appointment and went with someone else (who was ultimately confirmed).
The NLRB v. SW General, Inc. Case
SW General was an employer who had an unfair labor practices (ULP) complaint issued against it by the NLRB while Solomon was acting general counsel but nominated for the permanent position. SW General argued that under the Federal Vacancies Reform Act (FVRA), Solomon qualified to serve as acting general counsel, but that he lost that qualification once the President officially appointed him as the permanent general counsel, but without Senate confirmation. Since he was not authorized to serve as general counsel, any complaints issued during that time period would be invalid. Both a federal district court and the D.C. Circuit Court of Appeals agreed.
The Supreme Court, in a very grammar and punctuation focused opinion, affirmed the D.C. Circuit. Specifically, they found that the FVRA prohibits a person who has been nominated temporarily to fill a vacant office (such as NLRB general counsel) from later serving as an acting officer pending Senate approval. The Court noted that President Obama could have appointed another person to serve as the NLRB acting general counsel while Solomon awaited the confirmation that never came, but he chose not to do so. For those reasons, they dismissed the ULP complaint against SW General.
Other than statutory nerds and strict grammarians, who really should worry about this decision? Well, it seems eerily similar to the Noel Canning case which also dealt with President Obama’s attempts to appoint members to the NLRB. In Noel Canning, the Supreme Court ruled that several board members were improperly appointed and resulted in the NLRB having to reconsider hundreds of cases that had been decided by the prior board. In this case, the D.C. Circuit Court opinion (which was affirmed by the Supreme Court) specifically held that this would not be that type of situation and, instead, that only respondents who expressly and timely challenged Solomon’s appointment under the FVRA could have their NLRB decisions reviewed. However, because Solomon was general counsel, there may be all sorts of decisions that were made that may now be challenged—appointments to lower positions with the board administration, discovery issues, etc. If an employer had an adverse ruling from the NLRB during the time when Solomon served, this may now provide an avenue to challenge that decision.