National Labor Relations Board v. SW General, Inc.
Issues
May a senior agency official appointed by the president to serve as acting head of the same agency continue to serve in this capacity after being nominated by the president to permanently fill the office, even if the officer never served as first assistant to the office?
This case presents the Supreme Court with an opportunity to interpret § 3345 of the Federal Vacancies Reform Act of 1998 (“FVRA”) and to determine if a person performing the acting duties of an office that requires Senate confirmation may continue to do so after the president nominates them to fill the vacancy permanently. The parties disagree over the meaning of § 3345(b)(1) of the FVRA, which dictates that officials serving in an acting capacity may continue to do so after being nominated for permanent status only if they served as first assistant to the vacant office for 90 days in the year prior to the vacancy. Petitioner, the National Labor Relations Board (“NLRB”), argues that this limitation only applies to first assistants who automatically assume acting duties under § 3345(a)(1). The NLRB contends that this interpretation accords with both the language and objectives of the FVRA, and also with the historical practices of prior presidents and the Senate. Respondent, SW General, Inc., maintains that § 3345(b)(1) applies to all acting officials appointed pursuant to § 3345(a). SW General argues that § 3345(b)(1)’s language and purpose are clear and that core principles like separation of powers and the protection of the balance between the state and federal governments support its interpretation. The outcome of this case will affect presidential appointments that require Senate confirmation.
Questions as Framed for the Court by the Parties
Many important government posts must be filled by persons who are nominated by the President and confirmed by the Senate. The Federal Vacancies Reform Act of 1998 (FVRA), 5 U.S.C. 3345 et seq., provides that when such an office is vacant, its functions and duties may be performed temporarily in an acting capacity by either the first assistant to the vacant post, under Section 3345(a)(1); a Senate-confirmed official occupying another office in the Executive Branch who is designated by the President under Section 3345(a)(2); or a senior official in the same agency designated by the President under Section 3345(a)(3).
Section 3345(b) of the FVRA provides as a general rule that "[n]otwithstanding subsection (a)(1)," a person who is nominated to fill a vacant office that is subject to the FVRA may not perform the office's functions and duties in an acting capacity unless the person served as first assistant to the vacant office for at least 90 days in the year preceding the vacancy. 5 U.S.C. 3345(b).
The question presented is whether the precondition in 5 U.S.C. 3345(b)(1) on 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 5 U.S.C. 3345, or whether it also limits acting service by officials who assume acting responsibilities under Subsections (a)(2) and (a)(3).
The General Counsel of the National Labor Relations Board (“NLRB”) is a position that requires appointment by the president with the advice and consent of the Senate. See SW General v. NLRB, No. 14-1107, slip op. at 5 (D.C. Cir. Aug.
Edited by
Additional Resources
- Lawrence E. Dubé, Justices to Weigh Designation of Acting NLRB Official, Bloomberg BNA (June 21, 2016)
- Patrick L. Egan, Howard M. Bloom & Philip B. Rosen, Supreme Court to Hear Appeal of NLRB’s Former Acting General Counsel’s Decisions Following Nomination, Jackson Lewis (June 21, 2016)
- Scott J. Witlin & Minal Khan, NLRB v. SW General: Supreme Court to Decide if Presidential Appointees Can Fake it Until They Make it, The National Law Review (June 21, 2016)