On March 21, 2017, the U.S. Supreme Court finally resolved the issue of Lafe Solomon’s role as Acting General Counsel of the NLRB in National Labor Relations Board v. SW General, Inc. In an opinion authored by Chief Justice Roberts, the Supreme Court held that Solomon’s position as Acting General Counsel violated The Federal Vacancies Reform Act of 1998 (“FVRA”) once he was nominated by then President Obama for the permanent position. Generally, Article II of the U.S. Constitution requires the President to obtain Senate approval to appoint “Officers of the United States,” but the FVRA allows the President to appoint a limited class of individuals to serve as acting officers on a temporary basis until a replacement can be confirmed by the Senate. Pursuant to the FVRA, certain individuals who are nominated for a permanent position may not serve as an acting officer.
In June 2010, a vacancy arose in the general counsel position for the NLRB. Then President Obama appointed Solomon to serve as Acting General Counsel on a temporary basis, and several months later, nominated him to serve as the General Counsel. Solomon’s temporary position did not require Senate confirmation, but the permanent position did. However, the Senate refused to act on Solomon’s nomination, and Obama was forced to withdraw his name and nominate Richard Griffin to serve as General Counsel. Solomon served as the Acting General Counsel until Griffin was confirmed by the Senate in October 2013.
Solomon issued many complaints on behalf of the NLRB during his tenure as Acting General Counsel, including one against SW General, Inc. The NLRB ultimately determined that SW General engaged in unfair labor practices by failing to pay certain bonuses to its employees. SW General appealed to the U.S. Court of Appeals for the D.C. Circuit, arguing that the complaint against it was invalid because Solomon’s appointment as Acting General Counsel violated the FVRA. The NLRB claimed that Solomon did not fall within the category of individuals that the FVRA precludes from serving as acting officers. The Supreme Court affirmed the D.C. Circuit’s determination that Solomon “became ‘ineligible to serve as Acting General Counsel once the President nominated him to be General Counsel.’”
Because §3348(d) of the FVRA provides that “any function or duty of a vacant office” performed by a person not properly serving under the statute “shall have no force or effect[,]” the Supreme Court invalidated Solomon’s complaint against SW General. It’s important to note that the decision does not automatically nullify all decisions involving Solomon since, as the D.C. Circuit explained, “the actions of an improperly serving Acting General Counsel voidable, not void[.]” It does, however, open the door to invalidating NLRB decisions in the future. For those who are interested in reading the full opinion, it is available here.