National Labor Relations Board v. SW General, Inc.

Whether the precondition in Federal Vacancies Reform Act of 1998 § b(1), governing service in an acting capacity by a person nominated by the President to fill the office on a permanent basis, applies only to first assistants who take office under Subsection (a)(1) of FVRA, or whether it also limits acting service by officials who assume acting responsibilities under Subsections (a)(2) and (a)(3)?

Lafe Solomon, the former Acting General Counsel (“ACG”) of the National Labor Relations Board (“Petitioner”) issued an unfair labor practice complaint against Respondent in a labor dispute between Respondent and its employees. Respondent alleged that Solomon, who was nominated to be General Counsel, served in violation of the Federal Vacancies Reform Act of 1998 (FVRA), 5 U.S.C. §§ 3345 et seq. Respondent argued that Solomon had not previously served as the first assistant to the ACG for at least 90 of the last 365 days, nor was he was confirmed by the Senate to be the first assistant; therefore, the complaint was unauthorized. The D.C. Circuit agreed, vacated the complaint, and held that a person serving in an acting capacity who is nominated by the President to fill the office on a permanent basis is subject to the FVRA, and may not continue in an acting capacity unless he has served as first assistant to the vacant office for at least 90 days in the year preceding the vacancy. Petitioner argues that the prohibition of the FVRA only applies to first assistants who gain their position as acting officer through subsection (a)(1) and does not extend to all officers directed by the president to serve under subsections (a)(2) and (a)(3) of the FVRA.