United States: Supreme Court Rules That Former Acting NLRB General Counsel Became Ineligible To Perform Duties After President Obama Nominated Him For Permanent Position

Executive Summary: The U.S. Supreme Court has held that Lafe Solomon did not validly serve as Acting General Counsel for the National Labor Relations Board (NLRB) after former President Barack Obama nominated him to permanently fill that position in January 2011. See National Labor Relations Board v. SW General Inc., No. 15–1251 (March 21, 2017) (6-2). According to the Court, the provisions of the Federal Vacancies Reform Act (FVRA) precluded Solomon from serving as acting General Counsel after his nomination.

Background of the FVRA

Certain federal offices, such as that of General Counsel of the NLRB, require a Presidential appointment and Senate confirmation (PAS offices). The FVRA permits the President to appoint an official to temporarily perform, in an acting capacity, the duties of a PAS office until that position is permanently filled. Generally, the first assistant to the vacant office becomes the acting officer, but the President can override this default rule by directing either a person serving in a different PAS office or a senior employee within the relevant agency to become the acting officer. The FVRA, however, prohibits certain persons from serving as acting officers if the President has nominated them to fill the vacant office permanently.

The Supreme Court was called upon to resolve 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 President’s behest. The Court held that it applies to all three categories of acting officers.

Challenge to Solomon’s Appointment

When the NLRB General Counsel resigned in June 2010, Obama appointed Solomon to serve temporarily as the NLRB’s Acting General Counsel, citing the FVRA as the basis for the appointment. On January 5, 2011, Obama nominated Solomon to serve as the NLRB’s General Counsel on a permanent basis; however, the Senate did not act on Solomon’s nomination, which was returned to the President. Obama resubmitted Solomon’s name for General Counsel in 2013, but the Senate did not confirm his nomination, which was subsequently withdrawn. A different candidate was confirmed as General Counsel on October 29, 2013. Solomon served as Acting General Counsel during this entire process.

In January 2013, an NLRB Regional Director, exercising authority on Solo­mon’s behalf, issued an unfair labor practice complaint against SW General Inc. An administrative law judge concluded that the employer had committed an unfair labor practice, and the NLRB affirmed this decision. Subsequently, SW General sought review of the NLRB’s decision in the United States Court of Appeals for the District of Columbia. The company argued that the complaint was invalid because, under the FVRA, Solomon could not legally fulfill the duties of acting General Counsel after having been nominated to fill that position.  The court of appeals agreed and vacated the Board’s order. The Supreme Court granted certiorari and affirmed the appeals court’s decision.    

The Supreme Court held that the FVRA’s prohibition against anyone who has been nominated to fill a PAS office from serving as an acting officer in that position applies to anyone performing an acting service under the FVRA – whether they are serving because they were the first assistant to the vacant office or because the President directed someone else to be the acting officer as permitted by the FVRA. “Solomon was appointed as acting general counsel under subsection (a)(3). Once the President submitted his nomi­nation to fill that position in a permanent capacity, sub­section (b)(1) prohibited him from continuing his acting service.”

Employers’ Bottom Line: The impact of the Court’s ruling is much more limited than its 2014 decision in Noel Canning, in which the Court invalidated the recess appointments of certain Board members, requiring the Board to reconsider hundreds of decisions issued during the time those members served. The FVRA exempts the NLRB General Counsel from the general rule that actions taken in violation of that statute are void ab initio, meaning they cannot be ratified.  Here, the D.C. Circuit assumed the actions of the improperly serving Acting General Counsel were voidable and rejected the Board’s argument against voiding Solomon’s actions. The Board did not seek certiorari on that issue, so the Supreme Court did not consider it. Employers with ongoing unfair labor practice litigation initiated by Solomon between January 2011 and October 2013 might be able to challenge complaints issued by Solomon during that period.

This decision upends more than two decades of practice by Republican and Democratic presidents in making appointments.  Since the enactment of the FVRA, the Senate had received over 100 nominations of individuals who continued to serve in an acting capacity after their nomination without challenge.

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.

Similar Articles
Relevancy Powered by MondaqAI
In association with
Related Topics
Similar Articles
Relevancy Powered by MondaqAI
Related Articles
Related Video
Up-coming Events Search
Font Size:
Mondaq on Twitter
Mondaq Free Registration
Gain access to Mondaq global archive of over 375,000 articles covering 200 countries with a personalised News Alert and automatic login on this device.
Mondaq News Alert (some suggested topics and region)
Select Topics
Registration (please scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

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 or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.


The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq 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 of the Content or performance of Mondaq’s Services.


Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions