Term: 2016
Docket: 15-1251
Nlrb v. Sw General, Inc.
- Pro
15-1251 NLRB V. SW GENERAL, INC. DECISION BELOW: 796 F.3d 67 CERT. GRANTED 6/20/2016 QUESTION PRESENTED: Many important government posts must be filled by persons who are nominated by the President and confirmed by the Senate. The Federal Vacancies Reform Act of 1998 (FVRA), 5 U.S.C. 3345 et seq., provides that when such an office is vacant, its functions and duties may be performed temporarily in an acting capacity by either the first assistant to the vacant post, under Section 3345(a)(1); a Senate- confirmed official occupying another office in the Executive Branch who is designated by the President under Section 3345(a)(2); or a senior official in the same agency designated by the President under Section 3345(a)(3). Section 3345(b) of the FVRA provides as a general rule that "[n]othwithstanding subsection (a)(1)," a person who is nominated to fill a vacant office that is subject to the FVRA may not perform the office's functions and duties in an acting capacity unless the person served as first assistant to the vacant office for at least 90 days in the year preceding the vacancy. 5 U.S.C. 3345(b). The question presented is whether the precondition in 5 U.S.C. 3345(b)(1) on service in an acting capacity by a person nominated by the President to fill the office on a permanent basis applies only to first assistants who take office under Subsection (a)(1) of 5 U.S.C. 3345, or whether it also limits acting service by officials who assume acting responsibilities under Subsections (a)(2) and (a)(3). LOWER COURT CASE NUMBER: 14-1107, 14-1121
The U.S. Supreme Court case NLRB v. SW General, Inc., 2016 revolved around the interpretation of the Federal Vacancies Reform Act (FVRA) of 1998 and its application to an appointment made by then-President Barack Obama. The FVRA restricts a person from serving as an acting officer for a position that requires Senate confirmation if that person has been nominated to fill the role permanently but hasn't received Senate approval yet. President Obama had appointed Lafe Solomon as acting general counsel for the National Labor Relations Board (NLRB), while also nominating him for permanent appointment - which was not approved by the Senate. SW General, Inc., argued that Solomon's service violated FVRA after receiving an unfair labor practice complaint from his office. The Supreme Court agreed with this argument in a 6-2 decision, ruling that Solomon's continued service did indeed violate FVRA once he was officially nominated for permanent appointment without subsequent Senate confirmation.
In the dissenting opinion for NLRB v. SW General, Inc., Justice Sotomayor argued that the majority's interpretation of the Federal Vacancies Reform Act (FVRA) was incorrect and overly broad. She contended that their reading would prevent a large number of qualified individuals from temporarily filling vacant positions, which could hinder government operations. Instead, she suggested an alternative interpretation where only nominees who were not already serving in an acting capacity at the time of nomination would be disqualified under FVRA. This approach, she believed, aligned more closely with Congress' intent when drafting FVRA - to limit potential abuses by preventing permanent appointments without Senate confirmation while still allowing temporary fill-ins to ensure continuity in government functions.
