Nat'l Labor Relations Bd. v. SW Gen., Inc.
137 S. Ct. 929
| SCOTUS | 2017Background
- The Federal Vacancies Reform Act of 1998 (FVRA), 5 U.S.C. § 3345 et seq., authorizes temporary acting service in Senate-confirmed (PAS) offices by three categories: the office's first assistant (automatic), a different PAS officer directed by the President, or a senior agency employee who meets tenure/pay thresholds.
- FVRA § 3345(b)(1) prohibits a person from serving as an acting officer under the statute if the President nominates that person to the vacant PAS office and, during the prior 365 days, the person either did not serve as first assistant or served as first assistant for fewer than 90 days; § 3345(b)(2) excepts Senate‑confirmed first assistants.
- Lafe Solomon, a senior NLRB official, was directed by the President to serve as Acting General Counsel under § 3345(a)(3); the President later nominated him for the permanent post and the Senate never confirmed him. Solomon continued to serve as acting general counsel while his nomination was pending and later withdrawn.
- SW General challenged an NLRB unfair‑labor‑practice complaint issued when Solomon was Acting General Counsel, arguing Solomon was ineligible to serve as an acting officer after nomination under § 3345(b)(1). The D.C. Circuit agreed and vacated the Board’s order.
- The Supreme Court granted certiorari and affirmed: § 3345(b)(1)’s bar on nominees serving as acting officers applies to all persons serving under § 3345 (first assistants, PAS officers designated by the President, and qualifying senior employees), not only automatically‑acting first assistants.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether § 3345(b)(1) applies only to first assistants who automatically serve under § 3345(a)(1) | § 3345(b)(1) restricts only first assistants who assume acting status automatically; it does not reach President‑designated PAS officers or senior agency employees | § 3345(b)(1) applies to any "person" serving as an acting officer under § 3345 (all three appointment paths) | The Court held § 3345(b)(1) applies to all persons serving as acting officers under § 3345, not just first assistants |
| Interpretation of the phrase "[n]otwithstanding subsection (a)(1)" in § 3345(b)(1) | That phrase shows Congress meant to limit the prohibition to subsection (a)(1) only | The phrase resolves a direct conflict with the automatic mandate in (a)(1) but does not restrict (b)(1)’s broader application to all acting officers under the section | The Court held the notwithstanding clause clarifies that (b)(1) overrides (a)(1) when they conflict but does not confine (b)(1) to (a)(1) alone |
| Whether § 3345(c)(1) (reappointment/continuous service) is nullified by a broad reading of § 3345(b)(1) | Broad reading would conflict with and nullify (c)(1), so (b)(1) must be limited | (c)(1) is a specific provision that controls over the general rule in (b)(1); no nullification results | The Court held (c)(1) is a specific exception that governs reappointment situations and thus is not nullified by (b)(1) |
| Whether post‑enactment practice and legislative history support a narrow reading | Executive and GAO guidance and many subsequent nominations indicate a long practice treating (b)(1) as limited to first assistants; legislative history shows concern focused on first assistants | The statutory text controls; compromises in the legislative process explain textual choices; sparse post‑enactment practice is not dispositive | The Court held textual reading controls; historical practice and selective floor statements do not overcome the statute’s clear text |
Key Cases Cited
- Edmond v. United States, 520 U.S. 651 (1997) (Appointments Clause structural principles; distinction between principal and inferior officers)
- Buckley v. Valeo, 424 U.S. 1 (1976) (definition of "officers of the United States" exercising significant authority)
- Free Enterprise Fund v. Public Co. Accounting Oversight Bd., 561 U.S. 477 (2010) (removal and control factors relevant to officer status)
- Morrison v. Olson, 487 U.S. 654 (1988) (multi‑factor analysis for inferior‑officer status)
- United States v. Eaton, 169 U.S. 331 (1898) (temporary appointment principles)
- RadLAX Gateway Hotel, LLC v. Amalgamated Bank, 566 U.S. 639 (2012) (specific governs general canon)
- Chevron U.S.A. Inc. v. Echazabal, 536 U.S. 73 (2002) (discussion of expressio unius canon)
- Williams v. Taylor, 529 U.S. 362 (2000) (statutory construction principle to give effect to every clause)