Cases & Deals

SW General prevails before U.S. Supreme Court in Federal Vacancies Reform Act case

Clients SW General, Inc.

Jones Day successfully represented SW General, Inc. before the Supreme Court of the United States in a case involving the scope of the Federal Vacancies Reform Act (FVRA).

When a position requiring Presidential appointment and Senate confirmation (a so-called PAS position) becomes vacant, the FVRA allows certain individuals to temporarily serve as the acting officer until the President and the Senate can agree on a permanent replacement. As a default rule, the first assistant to the vacant office automatically becomes the acting officer; however, the President may choose to direct either a current PAS-officeholder or a senior agency employee to serve instead. The FVRA provides an important limitation on such acting service: "Notwithstanding [the automatic-succession rule for first assistants], a person may not serve as an acting officer for an office" if the President nominates him for the permanent position. In other words, Congress did not want the President's nominee to get to work before the Senate gave its approval.

This case arose from an unfair labor practice complaint issued against SW General while Lafe Solomon was serving as Acting General Counsel of the NLRB. Mr. Solomon was eligible to serve as an acting official pursuant to the FVRA's senior agency employee provision. SW General argued, however, that his acting service became invalid when President Obama nominated him to serve as NLRB General Counsel on a permanent basis. The Supreme Court granted certiorari to decide whether the FVRA's prohibition on acting service by nominees applies to all acting officers, or to first assistants only.

On March 21, 2017, the Supreme Court ruled in SW General's favor by a vote of 6-2. The Court agreed with SW General that the prohibition on acting service by nominees "applies to all acting officers." The "key words" "person" and "section," the Court explained, "clearly indicate" that the relevant provision "applies to all acting officers …, regardless of the means of appointment." And the introductory "notwithstanding" clause "confirms" the breadth of the provision by making clear "that the prohibition on acting service applies even when it conflicts with the default rule that the first assistant shall perform acting duties."

The Court accordingly rejected the NLRB's argument that the "notwithstanding" clause meant that Congress was concerned only about acting service by first assistants who had been nominated to the permanent position. It also found that NLRB's evidence of "legislative history, purposes, and post-enactment practice" unpersuasive on their own terms and irrelevant in light of the FVRA's "clear" text. "Applying the FVRA to this case is straightforward": Solomon could not perform the duties of General Counsel of the NLRB while his nomination for the permanent position was pending.

The Court's decision reaffirms the importance of the Senate's advice-and-consent role. When important government positions become vacant, the President cannot put his chosen replacement to work unless and until the Senate approves.

National Labor Relations Board v. SW General, Inc., No. 15-1251 (U.S.)

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