When the National Labor Relations Board (NLRB) ruled that SW General, Inc. had violated federal labor law, the Scottsdale, Ariz., ambulance firm questioned whether the NLRB’s acting general counsel, Lafe Solomon, had authority to handle the case.
On Wednesday, the US Supreme Court sided with SW General, ruling 6-2 that Mr. Solomon’s 2011 nomination by then-President Barack Obama violated the 1998 Federal Vacancies Reform Act, rendering Solomon’s actions against SW General null and void.
Legal analysts agree that this ruling could narrow the president’s nominating authority. But what it means for the Trump administration’s slowly advancing effort to fill vacant spots in the executive branch, or the hundreds of other NLRB cases presided over by Mr. Solomon, remains unclear.
“The ruling appears to be limited to those cases involving Solomon decisions where the issue was expressly raised by a party,” wrote attorneys Mark Theodore and Joshua S. Fox on Tuesday. But Mr. Solomon’s busy caseload during his three years as acting NLRB counsel means that this ruling could have a far-reaching impact.
The law at issue, the Federal Vacancies Reform Act (FVRA), was first passed by Congress in 1998. It prohibits someone nominated for a post requiring Senate confirmation – such as the NLRB’s general counsel – from serving in the same position on a temporary, or “acting,” basis.
Mr. Obama had filled the spot of general counsel with Mr. Solomon on such a basis in 2010. Then, in 2011, he nominated him to serve on a permanent basis. The government’s lawyers have since argued its action was covered by an exception in FVRA, one that applies to nominees who served as a “first assistant” for at least 90 days to the person who had previously held that office; Solomon had previously directed a different NLRB office, the Associated Press reports.
In his opinion, Chief Justice John Roberts disagreed. “Once the President submitted [Solomon’s] nomination to fill that position in a permanent capacity, [FVRA] subsection (b)(1) prohibited him from continuing his acting service,” he wrote.
Instead, Solomon served as acting general counsel for two years while his nomination remained bogged down in the Senate. He had plenty of company. In 2013, ProPublica reported that a backlog of presidential nominees awaiting Senate confirmation had grown under Obama, and that “Republicans have increasingly created roadblocks for nominees.”
Obama wasn't the first president to stretch the role of "acting" officials.
In their dissenting opinions, Justices Sonia Sotomayor and Ruth Bader Ginsburg noted that since the law was passed in 1998, more than 100 people have served in acting roles while the US Senate considered their nominations for permanent jobs.
It’s too early to tell whether this case will draw actions of these other acting appointees into question. But it could lead to re-examinations of the labor disputes that Mr. Solomon presided over during his three-year tenure (his nomination was withdrawn in 2013). Writing in Lexology, Mark Theodore and Joshua Fox wrote:
“There is no way to tell how many of the hundreds of prosecutorial decisions made by Lafe Solomon were challenged as ‘voidable’ ... but it is possible the number could be very high … Solomon worked and made decisions in his capacity as Acting General Counsel from January 2011 to October 2013. Actions taken by the Acting General Counsel during this period of time should be reviewed.”