Some of Eric Fanning’s Decisions Could Be Subject to Review, Thanks to Recent SCOTUS Ruling

A recent Supreme Court decision not only potentially has implications for the NLRB, but also the Army.

The Supreme Court’s recent decision in the National Labor Relations Board (NLRB) vs. SW General, Inc. case could have repercussions for the military ranks.

In its 6-2 decision on March 21, 2017, the Supreme Court ruled that acting agency heads could not simultaneously be presidential nominees for their positions. In the case of the NLRB vs. SW General, Inc., the Supreme Court decided that acting NLRB general counsel Lafe Solomon should not have been involved in the Agency’s work and processes, because he was also a presidential nominee for the post at the time.

In its majority opinion, the court stated that his acting position violated the Federal Vacancies Reform Act of 1998 (FVRA). That law had been put in place when President Bill Clinton tried to circumvent the Senate’s refusal to confirm Bill Lann Lee as the first assistant to the assistant attorney general for the Department of Justice’s civil rights department by naming him an acting assistant attorney general.

This decision has implications for the United States Army, too. The Army’s previous secretary, Eric Fanning, spent a two-month period as both its acting secretary and as the presidential nominee for the post between November 3, 2015 and January 11, 2016. The Senate committee assigned to Fanning’s confirmation hearing pressured Fanning into stepping aside because they alleged that he was violating the FVRA. His step down proved to be only a momentary break, as Fanning was confirmed in May 2016.

Still, there was a two-month window where Fanning should not have been allowed to make any personnel, regulatory or contract decisions, in accordance with NLRB vs. SW General, Inc. And though the Supreme Court was silent about whether Solomon’s improper appointment invalidated the NLRB’s prior decision against SW General, Inc., this decision begs individuals or companies to ask for a case to be reopened. This result could extend to any decision Fanning made during his time as both acting Secretary and as the presidential nominee for Secretary.

One of the first decisions Fanning made during that time period was approving revisions to the Army’s Evaluation Reporting System on November 4, 2015 – one day after President Barack Obama named Fanning the acting secretary. Though the revisions were created under the previous Secretary of the Army John McHugh, Fanning signed off on them, which means the revised Evaluation Reporting System – a document that includes provisions for officer evaluations and who can administer them – could conceivably be called into question by anyone adversely affected by a revised Evaluation Report.

There is a potential solution to this problem. Once a new Secretary of the Army is confirmed by the Senate, he or she could ratify Fanning’s critical decisions made during that two-month period. However, a court could still disagree with the validity of those decisions, based upon the Supreme Court’s ruling in NLRB vs. SW General, Inc. That case may open the door for numerous personnel, regulatory and contract decisions to be re-examined and possibly overturned in courts. Officer promotions could be nullified, revisions to regulations could be erased and contracts could be voided as a result, depending on how many decisions Fanning signed while in the dual status of acting secretary and nominee.

No one knows the extent of any effects the Supreme Court’s ruling will have on the Army or any other agency where someone was both an acting agency head and a presidential nominee. However, it’s clear that going forward, no individual can simultaneously hold an office as acting secretary while he or she is awaiting Senate confirmation for that same agency head position.

About the Author

Mathew B. Tully is a founding partner of Tully Rinckey PLLC. He concentrates his practice on representing federal government employees and military personnel. To schedule a meeting with one of the firm’s federal employment law attorneys call (202) 787-1900. The information in this column is not intended as legal advice.