Hooks v. Kitsap Tenant Support Servs.

A person lacks the authority to serve in an Executive position under the Federal Vacancies Reform Act if that person is also a nominee for the permanent position.

The Federal Vacancies Reform Act (FVRA) allows the President to appoint acting officers temporarily into positions absent Senate confirmation, subject to eligibility requirements and conditions. The National Labor Relations Board’s (NLRB) General Counsel resigned, leaving a vacancy. The president nominated Solomon, but the Senate declined the nomination. Solomon’s nomination was again submitted with Richard Griffin. Griffin’s nomination was confirmed, but Solomon served in the role for over three years. Under Solomon’s time the NLRB investigated and issued administrative complaints against the Kitsap Tenant Support Services (KTSS). KTSS filed a motion to dismiss, contending that Solomon couldn’t approve the petition as acting General Counsel because he hadn’t been appropriately appointed under the FVRA. The district court agreed and dismissed the action. There are two paths for a valid petition under section 10(j) of the NLRA, which must be authorized by the Board. The first is for three Board members to authorize the petition, and the second is for the General Counsel to approve the petition based on a prior entrustment of the Board’s authority. Thus, Solomon could only approve the petition if he had such entrustment. The Ninth Circuit held that Solomon did not meet this criterion because Solomon was not properly serving as acting General Counsel under the FVRA. There are three categories of individuals who may temporarily fill a vacant Executive agency office without Senate approval which are: first assistant to the office; the President directs a person serving in an office where appointment is required and with instruction and approval of the Senate; or the President directs an employee of an Executive agency, subject to time limitations. Since Solomon was not first assistant and because the President nominated him, the FBRA prohibited him from serving as acting General Counsel from the date of his nomination on, therefore he could not approve the petition. AFFIRMED.