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Keywords

statute

appeal

Related Cases

U.S. v. NLRB v. Sw. Gen., Inc.

Facts

In June 2010, Lafe Solomon was appointed as the acting general counsel of the NLRB after the previous general counsel resigned. Solomon had been nominated by the President to fill the position permanently in January 2011, but the Senate did not act on the nomination. During this time, Solomon issued a complaint against SW General, Inc. for unfair labor practices. SW General challenged the validity of the complaint, arguing that Solomon could not serve as acting general counsel after being nominated for the position.

In June 2010, the NLRBs general counselwho had been serving with Senate confirmationresigned. The President directed Lafe Solomon to serve temporarily as the NLRBs acting general counsel, citing the FVRA as the basis for the appointment. Solomon satisfied the requirements for acting service under subsection (a)(3) of the FVRA because he had spent the previous ten years in the senior position of Director of the NLRBs Office of Representation Appeals.

Issue

Whether the prohibition in 5 U.S.C. 3345(b)(1) against a nominee serving as an acting officer applies only to first assistants or to all acting officers.

The question presented is whether that limitation applies only to first assistants who have automatically assumed acting duties, or whether it also applies to PAS officers and senior employees serving as acting officers at the Presidents behest.

Rule

Under 5 U.S.C. 3345(b)(1), a person nominated for a vacant PAS office may not serve as an acting officer for that office.

Subsection (b)(1) 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.

Analysis

The Court analyzed the text of 5 U.S.C. 3345(b)(1) and concluded that the prohibition applies to any person serving as an acting officer, regardless of how they were appointed. The Court emphasized that the language of the statute does not limit the prohibition to first assistants and that the phrase 'notwithstanding subsection (a)(1)' clarifies that the prohibition applies even when it conflicts with the default rule that first assistants shall perform acting duties.

We conclude that the prohibition in subsection (b)(1) applies to anyone performing acting service under the FVRA. It is not, as the Board contends, limited to first assistants performing acting service under subsection (a)(1). The text of the prohibition extends to any 'person' who serves 'as an acting officer . . . under this section,' not just to 'first assistants' serving under subsection (a)(1).

Conclusion

The Supreme Court affirmed the decision of the lower court, holding that Solomon was ineligible to serve as acting general counsel once he was nominated for the position.

Who won?

SW General, Inc. prevailed in the case because the Court agreed that Solomon's actions as acting general counsel were invalid due to his nomination.

The Court of Appeals granted SW Generals petition for review and vacated the Boards order. It reasoned that 'the text of subsection (b)(1) squarely supports' the conclusion that the provisions restriction on nominees serving as acting officers 'applies to all acting officers, no matter whether they serve pursuant to subsection (a)(1), (a)(2) or (a)(3).'

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