A U.S. Supreme Court decision has significant implications for the federal government. The case is National Labor Relations Board v. SW General, Inc. DBA Southwest Ambulance, USSC Case No. 15-1251 (March 21, 2017).
While this is a private sector labor relations case, the decision may impact agencies as it relates to temporary appointments requiring Senate confirmation. This was a 6-2 Supreme Court ruling against the National Labor Relations Board.
Fall-Out of Making Aggressive “Acting” Appointments
The case is a fall-out of appointments made by President Obama when a nominee for a senior federal position was “acting” in the job but not confirmed by the Senate as required. The Obama administration opted to take an aggressive approach by placing some people who were nominated for a permanent job into the same job in an acting capacity.
These actions violated an existing statute, according to the Supreme Court. The aggressive approach to nominations will now leave some agencies deciding how to deal with the fall-out.
The “Acting” and “Permanent” Federal Appointments
In this case, the Court held that the Acting General Counsel for the National Labor Relations Board (NLRB), Lafe Solomon, was not, in fact, properly acting in this role. He served as the Acting General Counsel from January 2011 through the fall of 2013. The Court analyzed the Federal Vacancies Reform Act (“FVRA”), a 1998 law, in reaching its decision. The Court concluded someone who is nominated to serve in an acting capacity for a position could not also serve as the permanent nominee.
In effect, this means that senior managers at federal agencies cannot serve in an acting capacity in a position for which they have been nominated by the president to serve in permanently.
Acting General Counsel Solomon took numerous actions, just as he presumably would have if he had been confirmed as the General Counsel. His actions included appointing Regional Directors of the NLRB, issuing unfair labor practice complaints, and seeking injunctive relief.
The U.S. Supreme Court affirmed the decision of an appeals court. That appeals court decision held that under the Federal Vacancies Reform Act, any action taken in violation of the statute was void. (emphasis supplied) That provision in the FVRA reads, in part: “[a]n action taken by any person who is not acting [in compliance with the FVRA] shall have no force or effect” and “may not be subsequently ratified.”
The Obama administration argued the president could fill vacancies with the most qualified people. Whether they had been nominated on a permanent basis was not relevant. And, in an argument that may prove prescient, the administration also argued a ruling in favor of the company in this Supreme Court decision was not advisable. A ruling against the appointment at the NLRB raises doubts about the actions of interim leaders in agencies throughout government.
Implications of Supreme Court Decision for Agencies
There is no way to tell how many of the hundreds of prosecutorial decisions made by Lafe Solomon were or remain challenged as “voidable. ” The number could be large. The impact on the operations of the agency will not be known for some time. Suffice it to say, this was a sell-inflicted wound that will have consequences.
Other agencies may also deal with implications of this decision. For example, the Office of Personnel Management (OPM) was being run by Beth Cobert in an acting capacity. Ms. Cobert was in a position very similar to the person at the center of the new Supreme Court decision, Lafe Solomon. Cobert was acting as director of OPM while also nominated for the job in a permanent capacity.
OPM Inspector General Warned OPM of Director’s Improper Appointment
The OPM inspector general previously concluded in a memo to Cobert: “[U]nder the FVRA, any actions taken by you since the date of your nomination are void and may not be subsequently ratified. Consequently, these actions may be open to challenges before the federal district court for the District of Columbia.”
The inspector general’s recommendation was based on a US Court of Appeals Decision for the DC Circuit that has now been affirmed by the Supreme Court. The Obama administration disagreed, despite the clear language of the FVRA, and commented to Government Executive:
Beth Cobert was named by President Obama as the acting director of OPM consistent with the Federal Vacancies Reform Act. Since 1999, presidents of both parties have relied upon the consistent guidance and interpretation of that act by the Department of Justice governing when individuals may serve in an acting capacity while their nominations are pending before the Senate, and the administration continues to rely upon that guidance. We firmly believe that Acting Director Cobert is acting within the confines of the law.
It remains to be seen how agencies such as OPM and the NLRB will now deal with decisions made by people who were not authorized to do so. If decisions made and implemented by OPM while Cobert was acting as OPM director while also awaiting Senate confirmation for the same job, there could be implications for all agencies.