NLRB v. SW General, Inc.

Subject to a narrow exception, subsection(b)(1) of §3345 of the Federal Vacancies Reform Act prohibits any person who has been nominated by the President to fill a vacant office from executing the duties of the office in an acting capacity, regardless of whether the acting officer was appointed under subsection (a)(1), (a)(2), or (a)(3).

After the acting general counsel for the National Labor Relations Board (NLRB) resigned in 2010, the President directed Lafe Solomon to temporarily serve as acting general counsel. Twice the President nominated Solomon to permanently serve as general counsel, but the Senate did not consent to the appointment, therefore the President nominated a new candidate, who was subsequently confirmed. A NLRB Regional Director, under the authority of Solomon, issued a complaint against SW General, Inc. An Administrative Law Judge held that SW General had committed unfair labor practices, and the NLRB confirmed. SW General appealed and the United States Court of Appeals for the District Court of Columbia Circuit held that the restriction under the Federal Vacancies Reform Act (FVRA) applies to all acting officers, which meant that Solomon was ineligible to serve once the President nominated him. Section (b)(1) of the FVRA prevents a person who has been nominated for an unoccupied Presidential appointment and Senate confirmation (PAS office) from performing the duties of that office in an “acting capacity,” and is not limited to first assistants performing acting service under subsection (a)(1). The words “person” and “section” plainly show that (b)(1) applies to all acting officers under §3345, irrespective of how they are appointed. A “notwithstanding” clause simply shows what provision will prevail if a conflict arises and it is improper to draw a negative inference from such a clause. Subsection (b)(1) has no effect on (c)(1) because (b)(1) generally addresses nominations, whereas (c)(1) addresses a specific nomination situation. Except for one narrow exception, subsection (b)(1) prohibits any person who has been nominated to fill a vacant PAS office from executing the duties of the office in an acting capacity, whether or not the acting officer was appointed under subsection (a)(1), (a)(2), or (a)(3). Since Solomon was appointed acting general counsel pursuant to (a)(3), after the President submitted his nomination to permanently fill the position, subsection (b)(1) prohibited him from continuing his acting service. AFFIRMED