Employers should assess the impact of this decision in any NLRB case that was prosecuted by former acting General Counsel Lafe Solomon.
On March 21, the US Supreme Court in a 6-2 decision in NLRB v. S.W. General, Inc. invalidated former US President Barack Obama’s appointment of Lafe Solomon to the position of acting General Counsel of the National Labor Relations Board (NLRB or Board). The Court held that President Obama’s appointment violated Section 3345 of the Federal Vacancies Reform Act (FVRA) of 1998, which provides that no person may serve as an acting officer for a federal agency if the president has nominated that person to permanently fill such vacancy.
As a result of the Supreme Court’s decision, the actions taken by Solomon potentially are voidable in any NLRB case that was prosecuted between January 5, 2011 and November 4, 2013, when the current General Counsel’s term began.
In June 2010, the NLRB’s then-General Counsel Ronald Meisburg resigned. Following the resignation, President Obama appointed Lafe Solomon to serve temporarily as the NLRB’s acting General Counsel pursuant to Section 3345(a)(3) of FVRA. Normally, the position of General Counsel requires presidential appointment and US Senate confirmation. Section 3345 of FVRA, however, permitted the president to appoint Lafe Solomon in an acting capacity because he had served in a senior position at the NLRB for at least 90 days in the previous year.
On January 5, 2011, President Obama formally nominated Lafe Solomon to permanently fill the vacancy, subject to Senate confirmation. The Senate, however, did not act on President Obama’s appointment during the 112th Congress. Accordingly, President Obama re-nominated Solomon in 2013, but the Senate again refused to consider the nomination. Ultimately, the president withdrew Solomon’s nomination and submitted a new nominee (current General Counsel Richard Griffin) to fill the vacancy.
The question before the US Supreme Court arose when an NLRB Regional Director—exercising authority on Solomon’s behalf—issued a complaint alleging that SW General violated the National Labor Relations Act. The issue before the Court was whether Lafe Solomon properly served as acting General Counsel after President Obama nominated him to permanently fill the position in January 2011.
The Supreme Court, by a 6-2 majority, held that Solomon could not continue serving as acting General Counsel after President Obama nominated him to permanently fill the vacancy in January 2011. The Court held that FVRA prohibits any person who has been nominated to fill a vacant position, subject to Senate confirmation, from performing the duties of that office in an acting capacity. Writing for the majority, Chief Justice John Roberts explained that “[a]pplying FVRA to this case is straightforward . . . Once the President submitted his nomination to fill that position in a permanent capacity, [FVRA] prohibited him from continuing his acting service.”
Justice Clarence Thomas wrote a separate concurring opinion in which he explained that the president’s interim appointment of Solomon also likely violated the Appointments Clause of the US Constitution. Although Justice Thomas agreed with the majority’s interpretation that FVRA barred Solomon from continuing his acting service, he noted that the position of the General Counsel could not be filled, temporarily or otherwise, without first obtaining the advice and consent of the US Senate.
Justice Sonia Sotomayor’s dissent—joined by Justice Ruth Bader Ginsburg—disagreed with the majority’s interpretation of FVRA and instead would have upheld Solomon’s continuing service. Specifically, Justice Sotomayor explained that the provision that prevents officers from continuing their acting service upon formal nomination by the US president only applies to that limited group of officers who assumed their duties as “first assistants”—i.e., the position immediately subordinate to the vacated position.
The Supreme Court did not address the impact of its decision on Solomon’s actions taken after January 5, 2011, when his service as acting General Counsel became improper under FVRA. Generally, actions by individuals who are improperly appointed under FVRA are void ab initio. FVRA, however, exempts the General Counsel of the NLRB from the general rule that actions taken in violation of FVRA are automatically void. The Supreme Court did not address this issue because the Board did not seek certiorari on the issue of whether Solomon’s actions should have been voided in this case. Therefore, it is not clear whether courts will, in every case in which the issue is presented, void all actions taken by Solomon while he was improperly serving as acting General Counsel.
Another complicating factor is that since the DC Circuit issued its decision in SW General, current General Counsel Richard Griffin (who was confirmed by the Senate) has been issuing “Notice of Ratification” memoranda ratifying Solomon’s actions in pending cases before Board decisions in such cases have been issued. In these cases, the Board has opined that the current General Counsel’s ratification “renders moot any argument that SW General precludes further litigation.” The Supreme Court did not decide whether such an after-the-fact ratification by the current General Counsel is sufficient or whether courts may continue to find that actions taken by Solomon during the time he was invalidly serving as acting General Counsel are either void or voidable pursuant to FVRA.
If you have any questions or would like more information on the issues discussed in this LawFlash, please contact any of the following Morgan Lewis lawyers:
Harry I. Johnson, III
Ross H. Friedman
David A. McManus
Lisa Stephanian Burton
 N.L.R.B. v. SW General, Inc., No. 15–1251, 2017 WL 1050977, at *1 (U.S. Mar. 21, 2017)
 Id. at 14
 Id. at 16 (J. Thomas, concurring)
 Id. at 21 (J. Sotomayor, dissenting)
 See, e.g., The Ardit Co., 364 NLRB No. 130, slip op. at 2, n.4 (Oct. 27, 2016); Advanced Life Sys., Inc., 364 NLRB No. 117, slip op. at 1, n.2 (Aug. 27, 2016); Multiband EEC, Inc., 363 NLRB No. 100, slip op. at 1, n.2 (Jan. 21, 2016).
 Multiband EEC, Inc., 363 NLRB No. 100, slip op. at 1, n.2