United States: DC Circuit Invalidates Most Of Lafe Solomon's Tenure As Acting General Counsel

Last Updated: August 26 2015
Article by Brennan W. Bolt

On August 7, 2015, the U.S. Court of Appeals for the District of Columbia held that Lafe Solomon, the former Acting General Counsel of the National Labor Relations Board, served in violation of the Federal Vacancies Reform Act of 1998 ("FVRA") from January 5, 2011 to November 4, 2013. In SW General, Inc. v. NLRB, the Board found that the employer had violated Section 8(a)(5) of the National Labor Relations Act by discontinuing longevity payments while the parties were negotiating a new collective bargaining agreement. The complaint upon which the violation was found was issued by a Regional Director on January 31, 2013, and the Board affirmed the administrative law judge's decision in May 2014 without addressing the employer's FVRA challenge.

The employer contended that since January 2011, Acting General Counsel Solomon served in violation of the FVRA and, thus, the ULP complaint issued against it in January 2013 was invalid.

In June 2010, Ronald Meisburg resigned as NLRB General Counsel. The President directed Lafe Solomon, then-Director of the NLRB's Office of Representation Appeals, to serve as the Acting General Counsel in Meisburg's stead....The President cited the FVRA as the authority for Solomon's appointment....On January 5, 2011–six months into Solomon's temporary appointment–the President nominated him to be General Counsel....The Senate, however, returned Solomon's nomination....The President resubmitted Solomon's nomination on May 24, 2013...but ultimately withdrew it and nominated Richard Griffin instead, who was confirmed by the Senate on October 29, 2013....All told, Solomon served as Acting General Counsel from June 21, 2010 to November 4, 2013.

Consequently, the employer argued that Solomon became ineligible to serve as Acting General Counsel once the President nominated him to be General Counsel. The D.C. Circuit agreed.

Under subsection (a) of the FVRA, there are generally three categories of people who may serve temporarily in an acting capacity for a vacant presidentially appointed, Senate-confirmed position ("PAS"):

  1. "the first assistant to the office of such [PAS] officer" (5 U.S.C. § 3345(a)(1));
  2. other PAS officers designated by the President (5 U.S.C. § 3345(a)(2)); and
  3. "an officer or employee of such Executive agency" if such officer or employee served in a position for the agency for not less than 90 days in the preceding year and the rate of pay for such position "is equal to or greater than the minimum rate of pay payable for a position at GS-15 of the General Schedule" (5 U.S.C. § 3345(a)(3)).

Prior to Solomon's appointment as the Acting General Counsel on June 21, 2010, Solomon directed the NLRB's Office of Representation Appeals for approximately ten years. As such, Solomon did not qualify under the first or second categories, but he did fall into the third category.

In finding Solomon's appointment improper, the Court focused on subsection (b) of the FVRA, which states:

Notwithstanding subsection (a)(1), a person may not serve as an acting officer for an office under this section, if–

(A) during the 365-day period preceding the date of the death, resignation, or beginning of inability to serve, such person–

(i) did not serve in the position of first assistant to the office of such officer; or

(ii) served in the position of first assistant to the office of such officer for less than 90 days; and

(B) the President submits a nomination of such person to the Senate for appointment to such office.

5 U.S.C. § 3345(b)(1) (emphasis added).

Because Solomon did not serve in the position of first assistant, the employer argued that his appointment under the FVRA became invalid once the President submitted Solomon's nomination to the Senate. The Board, however, argued that subsection (b) did not apply to Solomon by virtue of the "[n]othwithstanding subsection (a)(1)" language, but the Court found that the employer "has the better argument" as "the text of the FVRA plainly supports" the employer. As a result, the Court held that because Solomon was never a first assistant and the President nominated him to be General Counsel on January 5, 2011, the FVRA prohibited him from serving as Acting General Counsel from that date forward.

Finding Solomon's FVRA appointment invalid from January 5, 2013 to November 4, 2013, the Court evaluated whether the FVRA violation was harmless or whether Solomon's action was ultimately ratified by the NLRB.

The Board nonetheless argued that, because of the type of ULP charged against [the employer] was not "of substantial legal interest" to Acting General Counsel Solomon, that particular complaint did not require submission to the General Counsel's Office for review beforehand....[The employer] rightly points out, however, that a different General Counsel may have imposed different requirements and procedures during his tenure....Accordingly, notwithstanding the final Board order, we cannot be confident that the complaint against [the employer] would have issued under an Acting General Counsel other than Solomon....Our uncertainty is sufficient to conclude that [the employer] has carried its burden of demonstrating that the FVRA violation is non-harmless under the Administrative Procedures Act....We therefore conclude that the NLRB order did not ratify or otherwise render harmless the FVRA defect in the ULP complaint against [the employer].

Although the D.C. Circuit invalidated most of Solomon's tenure as Acting General Counsel, the Court warns that it does not expect its decision "to retroactively undermine a host of NLRB decisions," indicating that employers that timely failed to raise a FVRA objection would likely not "enjoy the same success."

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

In association with
Related Video
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Check to state you have read and
agree to our Terms and Conditions

Terms & Conditions and Privacy Statement

Mondaq.com (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

Use of www.mondaq.com

You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these terms & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about Mondaq.com’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.


Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use or performance of information available from this server.

The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.


Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.

Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

If you do not want us to provide your name and email address you may opt out by clicking here .

If you do not wish to receive any future announcements of products and services offered by Mondaq by clicking here .

Information Collection and Use

We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to unsubscribe@mondaq.com with “no disclosure” in the subject heading

Mondaq News Alerts

In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.


A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

Log Files

We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.


This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

Surveys & Contests

From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.


If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.


This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to webmaster@mondaq.com.

Correcting/Updating Personal Information

If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to EditorialAdvisor@mondaq.com.

Notification of Changes

If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

How to contact Mondaq

You can contact us with comments or queries at enquiries@mondaq.com.

If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at problems@mondaq.com and we will use commercially reasonable efforts to determine and correct the problem promptly.