On March 21, 2017, the U.S. Supreme Court decided the case of NLRB v. SW General, Inc., dba Southwest Ambulance. This case concerns the operation and application of the Federal Vacancies Reform Act of 1998 (FVRA).
Section 3345(a) of the FVRA permits three categories of Government officials to perform acting service in a vacant office requiring Presidential appointment and Senate confirmation (PAS office). Subsection (a)(1) prescribes the general rule 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, to serve in an acting capacity instead. However, Section 3345 makes certain individuals ineligible for acting service. Subsection (b)(1) specifically states: “Notwithstanding subsection (a)(1),a person may not serve as an acting officer for an office under this section” if the President nominates him for the 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.”
In January of 2013, the National Labor Relations Board’s (NLRB) Regional Director, exercising authority on behalf of Lafe Solomon, the NLRB’s acting General Counsel (who served in that capacity for many months without Senate confirmation), filed a complaint against SW General, Inc., dba Southwest Ambulance(Southwest Ambulance) alleging that this ambulance company had committed unfair labor practices. An NLRB Administrative Law Judge (ALJ) agreed, and Southwest Ambulance filed an appeal with the U.S. Court of Appeals for the DC Circuit arguing that the complaint was invalid because the NLRB’s General Counsel could not legally perform the duties of the General Counsel under the restrictions of the FVRA. The DC Circuit agreed, and vacated the Board’s orders.
The NLRB appealed the decision to the U.S. Supreme Court, which has now ruled, in a decision written by Chief Justice Roberts, that Mr. Solomon’s “continued service” violated the statute thereby affirming the decision of the Court of Appeals. The Chief Justice’s analysis of this complex statute is a tour de force of statutory construction, and it is certain to focus the attention of both the Executive and the Senates on the necessity of having these important positions filled expeditiously and in compliance with the law to ensure that the machinery of government functions properly.
Justice Thomas’ concurrence noted that not only was Mr. Solomon’s tenure in violation of the FVRA, but also the Appointments Clause of the Constitution. Justices Sotomayor and Ginsburg dissented.
While this ruling only concerns the NLRB, it is likely that there are other departments and agencies in the federal government where decisions have been made by arguably noncomplying officials whose decisions may now be open to challenge.