[JURIST] The US Supreme Court [official website] ruled [opinion, PDF] on Tuesday that acting officers of federal agencies who were appointed by the president to fill a vacancy temporarily cannot act in that capacity after being officially nominated to the vacant position. In NLRB v. SW General, Inc. [SCOTUSblog materials= the court ruled 6-2 to affirm the decision [opinion, PDF] of the US Court of Appeals for the District of Columbia Circuit [official website]. This case arose when a vacancy opened within the National Labor Relations Board (NLRB) [official website] in June 2010. Former president Barack Obama directed Lafe Solomon to serve as acting general counsel. In January 2011, Obama nominated Solomon to serve as the NLRB’s general counsel on a permanent basis. When the Senate never took action on the nomination, Obama withdrew Solomon’s name and nominated a new candidate, who was confirmed in October 2013. Solomon served as acting general counsel for the NLRB during this entire period. In January 2013, the NLRB issued an unfair labor practice complaint against SW General, on Solomon’s behalf. SW General argued the complaint was invalid because Solomon could not perform his general counsel duties after being nominated to fill the position. The Federal Vacancies Reform Act (FVRA) [text] permits three categories of government officials to perform acting services in vacant offices that require presidential appointment and senate confirmation (PAS offices) under Article II [text] of the Constitution. One such category are those that the president direct to serve as acting officers. Subsection (b)(1) of the FVRA bars acting officers from performing in that capacity after being officially nominated for the position, but the NLRB argued subsection (b)(1) did not apply to all three categories of acting officials, and specifically did not apply to acting officials who were presidentially directed to serve in that role. Chief Justice John Roberts wrote for the court:
Applying the FVRA to this case is straightforward. Solomon was appointed as acting general counsel under subsection (a)(3). Once the President submitted his nomination to fill that position in a permanent capacity, subsection (b)(1) prohibited him from continuing his acting service. This does not mean that the duties of general counsel to the NLRB needed to go unperformed; the President could have appointed another person to serve as the acting officer in Solomon’s place. And he had a wide array of individuals to choose from: any one of the approximately 250 senior NLRB employees or the hundreds of individuals in PAS positions throughout the Government. The President, however, did not do so, and Solomon’s continued service violated the FVRA.
Using statutory interpretation, the court ruled that subsection (b)(1) prohibits all three categories of acting officials, including those directed to serve by the president, from performing the duties of the office after being nominated for the official position by the president.
Justice Clarence Thomas filed a concurring opinion. Justice Sonia Sotomayor filed a dissenting opinion, joined by Justice Ruth Bader Ginsburg. The court heard arguments in the case in November after granting certiorari [JURIST reports] in June.