SW General, Inc. v. National Labor Relations Board, 418 U.S. App. D.C. 67

Background

Ronald Meisburg resigned as NLRB General Counsel in June 2010; President appointed Lafe Solomon Acting General Counsel under the FVRA; Solomon served June 21, 2010–Nov. 4, 2013.
The President nominated Solomon to be permanent General Counsel on Jan. 5, 2011; the nomination was later returned and ultimately withdrawn.
Southwest Southwest General, an ambulance employer, was charged with unfair labor practices in a complaint issued Jan. 31, 2013; the Regional Director issued the complaint pursuant to delegated authority from Solomon.
Southwest challenged the Board’s order below, asserting Solomon was ineligible to serve as Acting General Counsel after his nomination under the FVRA, and preserved that objection in exceptions to the ALJ decision.
The D.C. Circuit reviewed whether 5 U.S.C. § 3345(b)(1) bars any acting officer (not just first assistants) from continuing as acting officer once nominated, and whether any FVRA violation here was harmless or cured by de facto doctrines.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Scope of 5 U.S.C. § 3345(b)(1): whether the prohibition on serving as acting officer after nomination applies only to first assistants or to all acting officers	§ 3345(b)(1) applies to all acting officers (textual reading: “a person” and “this section”)	§ 3345(b)(1) is limited by the prefatory “Notwithstanding subsection (a)(1)” and thus applies only to first assistants promoted under (a)(1)	Held for plaintiff: § 3345(b)(1) applies to all acting officers; Solomon became ineligible upon nomination (Jan. 5, 2011) because he was not a first assistant
Validity of the ULP complaint issued while Solomon served	FVRA violation voided Solomon’s authority and thus the complaint was invalid; vacatur required	Board argued relief could be avoided via harmless‑error principles, ratification, or de facto‑officer doctrine	Held for plaintiff: because the General Counsel exercises independent prosecutorial discretion, the Board cannot confidently say the defect was harmless; vacatur required
Applicability of § 3348 (void ab initio / no ratification) to General Counsel actions	FVRA generally voids acts by improper acting officers; where applicable, actions are void	Board relied on § 3348(e)(1) carve‑out for the NLRB General Counsel to argue actions may be voidable and subject to harmless‑error/de facto doctrines	Court assumed § 3348(e)(1) renders actions voidable (not void) but still rejected harmless‑error and de facto defenses on the record here
De facto officer doctrine as defense	Board: de facto officer doctrine and traditional notions of ratification/cure should validate past actions	Southwest: de facto doctrine does not bar collateral challenge where timely raised and agency had notice	Held for plaintiff: de facto doctrine does not preclude Southwest’s collateral challenge; Andrade standards (timeliness and agency notice) were met, so challenge permitted

Key Cases Cited

M’Culloch v. Maryland, 17 U.S. 316 (1819) (discussing practical governance and constitutional structure)
Pfizer, Inc. v. Gov’t of India, 434 U.S. 308 (1978) (statutory phrase "any person" has broad meaning)
Doolin Sec. Sav. Bank v. Off. of Thrift Supervision, 139 F.3d 203 (D.C. Cir. 1998) (discussed ratification and cure of acting‑officer defects)
NLRB v. Sears, Roebuck & Co., 421 U.S. 132 (1975) (General Counsel’s delegation and supervisory authority)
United Food & Commercial Workers Union, Local 23 v. NLRB, 484 U.S. 112 (1987) (independence and prosecutorial discretion of NLRB General Counsel)
Landry v. FDIC, 204 F.3d 1125 (D.C. Cir. 2000) (separation‑of‑powers errors treated as structural; harmless‑error limits)
Andrade v. Lauer, 729 F.2d 1475 (D.C. Cir. 1984) (modern de facto officer doctrine; timeliness and agency notice requirements)
United States v. Mechanik, 475 U.S. 66 (1986) (grand jury/petit jury harmless‑error analogy)
Noel Canning v. NLRB, 705 F.3d 490 (D.C. Cir. 2013) (referenced as a related appointments/FVRA decision)