President’s Appointment Power on Trial at Supreme Court

By Allen Smith, J.D. Nov 11, 2016
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An employer in Arizona argued before the Supreme Court that President Barack Obama overreached his power when he appointed an acting general counsel to the National Labor Relations Board (NLRB).

The Supreme Court heard arguments on Nov. 8 that the president violated the Federal Vacancies Reform Act (FVRA) by appointing Lafe Solomon to acting general counsel of the NLRB—something the president allegedly couldn't do since he had also nominated Solomon to be permanent general counsel, subject to Senate confirmation.

However, the government defended the president's action. The FVRA's "limitation on an individual serving as both the nominee and as the acting official for a single office applies only to someone who is currently the first assistant in that office," argued General Ian Gershengorn, acting solicitor general for the U.S. Department of Justice.

For years, Congress has raised no objection to presidents appointing acting general counsels in different agencies who were nominees to fill the post permanently, he argued. If the plaintiff in this case prevails, employers that have challenged the authority of the president to appoint acting general counsels may be able to get unfair labor practice rulings thrown out.

[SHRM members-only HR Q&A: Unfair Management Practices: What is an unfair labor practice by management?]

That would undo some of the work of Solomon. He showed himself to be a strong but controversial advocate of unions most notably when he went after Boeing for transferring a production line from the state of Washington, where workers were unionized, to South Carolina, where they were not. The transfer was allegedly in retaliation against the union.

Lower Court Opinion

Nevertheless, when the D.C. Circuit Court of Appeals heard the case, it ruled that the law's bar on nominees who are also serving as acting officials applied to senior employees in the same agency. Solomon had become acting general counsel after serving as a senior agency worker for 10 years.

Southwest Ambulance, a provider of ambulance services to Arizona hospitals, challenged an unfair labor practice charge sought by Solomon based on its argument that his service as acting general counsel violated the FVRA.

The D.C. Circuit ruled that Solomon's "dual appointment was contrary to the federal law, which was enacted to make it difficult for presidents to appoint officials as 'acting' after being rejected by the Senate and thereby sidestep the Senate confirmation process," said Robert Boonin, an attorney with Dykema in Detroit.

Continuity and Regularity

Southwest Ambulance maintained that the FVRA permitted only first assistants with 90 days of service to both act as general counsel and be nominated to permanently fill the position.

"Now it seems to me that this exception here is saying this," Justice Stephen Breyer said. "We have the secretary of the Treasury. He has five assistants. Each is a presidential appointee." One day, the assistant secretary of the Treasury dies. The president can fill that role on an acting basis with one of the following:

  • His first assistant.
  • Some other assistant secretary or deputy in the Treasury Department.
  • A General Schedule-15 (GS-15), the highest level of pay for federal employees.

But only a first assistant with 90 days of service could be nominated to permanently fill the position, according to the company.

"Yes," agreed Shay Dvoretzky, an attorney with Jones Day in Washington, D.C., who is representing Southwest Ambulance.

"I would just wonder, were I from Mars, what's the point of such a statute?" Breyer asked. Why the preference for the first assistant with some experience? Breyer asked. "I can't think of an answer given your interpretation," he added.

"First assistants are particularly well-suited to be the acting official because they represent continuity and regularity in the office," Dvoretzky answered. On the other hand, with GS-15s, "there's no accountability there to Congress, and there are potentially much greater concerns about those individuals serving as acting officials while the nominee," he added.

"The facts of this case illustrate that concern. The president designated Mr. Solomon to serve as the acting general counsel. Some months later he nominated Mr. Solomon. Perhaps emboldened by the nomination, Mr. Solomon then took some very controversial actions that led the Senate promptly to make clear to the president that this individual was not going to be confirmed," Dvoretzky said. "Rather than at that point finding a new nominee, the president allowed Mr. Solomon to continue serving even after the nomination had been returned by the Senate, waiting four months before renominating the same individual, and then only a few months later after that finally came up with a nominee that the Senate approved."

Dvoretzky noted, "In the meantime, Mr. Solomon served, even though the Senate quite clearly did not consent to him, in the job for over three years."

Tie Vote May Be Likely

So, which interpretation of the statute is right? The government's or Southwest Ambulance's? Justice Anthony Kennedy seemed to be leaning in Southwest Ambulance's favor, according to Frederick Schwartz, an attorney with Barnes & Thornburg in Chicago. Schwartz said that Kennedy got to the heart of the matter "when he simply and briefly told counsel for Southwest Ambulance that he had a 'very strong' argument based upon the plain text of the statute."

While Justice Elena Kagan "did not buy that, she also took issue with both sides' arguments regarding the 'plain text' and had tough questions for counsel for both parties on that issue," Schwartz said. But he thought the "very strong" argument would carry the day with Chief Justice John Roberts Jr., Justice Clarence Thomas and Justice Samuel Alito Jr.  "That means the government would not have the necessary fifth vote to overturn the D.C. Circuit's decision," he said, referring to the court's current vacant ninth seat.

This case is National Labor Relations Board v. SW General DBA Southwest Ambulance, No. 15-1251. 

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