On March 21, 2017, the United States Supreme Court decided National Labor Relations Board v. SW General, Inc., No. 15-1251, holding that the Federal Vacancies Reform Act of 1998 (FVRA) prevents any person nominated for a Senate-confirmed office from serving in that position in an acting capacity, regardless of whether the person was already serving pursuant to one of Section 3345(a)’s three categories of Government officials who may perform acting service in a vacant office without Senate confirmation.
In June 2010, a vacancy arose in the National Labor Relations Board (NLRB), an office that requires Senate confirmation (PAS office). The President directed Lafe Solomon to serve as acting general counsel to the NLRB. Solomon qualified for acting service under Section 3345 (a)(3) of the FVRA because he was a senior employee at the NLRB. To provide the President with limited flexibility when a vacancy occurs in a PAS office, the FVRA permits three categories of government officials to perform acting service in a vacant PAS office. Subsection (a)(1) provides that if a vacancy arises in a PAS office, the first assistant to that office “shall perform” the office’s “functions and duties temporarily in an acting capacity.” Subsections (a)(2) and (a)(3) provide that “notwithstanding paragraph (1),” the President “may direct” a person already serving in another PAS office, or a senior employee in the relevant agency, like Solomon, to serve in an acting capacity instead.
In January 2011, the President nominated Solomon to serve as the NLRB’s general counsel on a permanent basis. The Senate never acted on the nomination, which the President ultimately withdrew. The President then nominated a new candidate whom the Senate confirmed in October 2013. During the pendency of his nomination and until the new candidate was confirmed, Solomon continued to serve as the acting general counsel to the NLRB.
In January 2013, an NLRB Regional Director, exercising authority on Solomon’s behalf, filed an unfair labor practices complaint against SW General, Inc. An administrative law judge found that SW General had committed unfair labor practices, and the NLRB agreed. SW General appealed to the United States Court of Appeals for the District of Columbia, arguing that the NLRB’s complaint was invalid because subsection (b)(1) of the FVRA prohibited Solomon from performing the duties of general counsel after the President nominated him to fill that position. The NLRB argued that subsection (b)(1) applies only to first assistants who automatically assume acting duties under subsection (a)(1) and not to acting officers that the President directs to serve under subsection (a)(2) or (a)(3). The Court of Appeals vacated the Board’s order, concluding that the prohibition on acting service by nominees contained in subsection (b)(1) applies to all acting officers, regardless of whether they are serving under subsection (a)(1), (a)(2), or (a)(3) of the FVRA.
The Supreme Court affirmed. The Court found that Solomon became ineligible to perform the duties of general counsel in an acting capacity once the President nominated him to fill that post. The Court examined subsection (b)(1) of the FVRA, which states that “[n]otwithstanding subsection (a)(1), a person may not serve as an acting officer for an office under this section” if the President nominates him for a vacant PAS office and, during the 365-day period preceding the vacancy, the person “did not serve in the position of first assistant” to that office or “served in [that] position . . . for less than 90 days.” The Court held that the term “person” in subsection (b)(1) has an expansive meaning that equally encompasses anyone already performing acting service under the FVRA. The Court determined that the dependent clause at the beginning of subsection (b)(1)—“notwithstanding subsection (a)(1)”—did not serve to limit the prohibition to first assistants. Rather, this clause means that the prohibition applies even when it conflicts with the default, mandatory rule in subsection (a)(1) that first assistants “shall perform” acting duties.
The Court held that the “notwithstanding” clause in subsection (b)(1) does not give rise to the inference that Congress’ failure to include subsections (a)(2) and (a)(3) signifies an intention that the prohibition only extend to first assistants serving under Section 3345 (a)(1). Subsection (a)(1) is the only one of the three statutory categories that contains mandatory language, providing for the default rule that first assistants “shall perform” the office’s “functions and duties temporarily in an acting capacity.” Under subsections (a)(2) and (a)(3), on the other hand, the president “may direct” persons falling under these subsections. Thus, it was natural for subsection (b)(1) to clarify that the mandatory language in subsection (a)(1) does not prevail over its broad prohibition of acting service once a person is nominated to fill a vacancy.
Chief Justice Roberts delivered the opinion of the Court in which Justices Kennedy, Breyer, Alito, and Kagan joined. Justice Thomas filed a concurring opinion. Justice Sotomayor filed a dissenting opinion in which Justice Ginsburg joined.
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