Nat'l Labor Relations Bd. v. SW Gen., Inc.

Summary

The Supreme Court held that the Federal Vacancies Reform Act’s prohibition on certain nominees serving as acting officers applies to all acting officers serving under the statute, not only first assistants. Lafe Solomon therefore became ineligible to continue serving as acting general counsel of the National Labor Relations Board after the President nominated him for the permanent position. The Court affirmed the D.C. Circuit’s judgment vacating the NLRB’s order against SW General, Inc.

Holdings

1. Section 3345(b)(1) prohibits a person nominated to fill a vacant presidentially appointed, Senate-confirmed office from performing the duties of that office in an acting capacity under the FVRA, regardless of whether the person serves under § 3345(a)(1), (a)(2), or (a)(3).
2. Once the President nominated Lafe Solomon to become the NLRB's general counsel, § 3345(b)(1) prohibited him from continuing to serve as acting general counsel under § 3345(a)(3).

Questions Presented

1. Whether 5 U.S.C. § 3345(b)(1) prohibits a person nominated to fill a vacant presidentially appointed, Senate-confirmed office from continuing to serve as acting officer when the person serves under § 3345(a)(2) or (a)(3), rather than automatically as a first assistant under § 3345(a)(1).
2. Whether Solomon's continued service as acting NLRB general counsel after his nomination violated the Federal Vacancies Reform Act.

Disposition

affirmed