NLRB v. SW General, Inc.

Case Updates

The U.S. Supreme Court held that Lafe Solomon, the Acting General Counsel of the NLRB for more than three years during the Obama administration, was unlawfully serving in that capacity in violation of the Federal Vacancies Reform Act (“FVRA”).

The FVRA generally prevents an individual from serving as the temporary, acting official for a position that requires Senate confirmation while that individual’s nomination to serve in that position permanently is pending. The Court, in an opinion written by Chief Justice Roberts, held that this prohibition applies to anyone performing acting service under the FVRA, not just first assistants. The Court’s decision provides a tool to invalidate decisions made by the many officials who have served and are still serving in violation of the Court’s interpretation of the FVRA.

The U.S. Chamber filed an amicus brief in a merits case before the U.S. Supreme Court addressing the President’s limited ability to temporarily fill government posts that require presidential appointment and Senate confirmation under the Federal Vacancies Reform Act (“FVRA”). The Chamber’s brief explained that the purpose of the FVRA is to ensure that the President does not bypass the Senate’s advice-and-consent role in nominations. Moreover, the brief argued that the relevant provisions of the FVRA plainly prohibit a person from temporarily serving as an acting officer if that person (1) did not serve as first assistant to the vacant office for 90 days of the prior year and (2) has been nominated to that office by the President.

John P. Elwood, Jeremy C. Marwell, and Gregory F. Miller of Vinson & Elkins LLP served as counsel for the U.S. Chamber of Commerce on behalf of the U.S. Chamber Litigation Center.