An unusual statutory restraint on the appointment process for the general counsel of the National Labor Relations Board (NLRB) is at the heart of a significant case about to be heard by the Supreme Court of the United States. The provision is part of the Federal Vacancies Reform Act of 1998. The court will decide whether Lafe Solomon, a long-serving NLRB official and former acting general counsel of the board for several years, could actually serve as acting general counsel in the face of statutory language prohibiting such service if he was nominated to be general counsel but had not served long enough as first assistant general counsel.
It’s a technical provision with a “notwithstanding” clause that has caused all the confusion. That clause only refers to one subsection of the law, but the rest of the statutory language refers to the entire section. A federal appeals court ruled that Solomon was prohibited from serving as acting general counsel after his nomination and that the unfair labor practice complaint that was issued on his authority was invalid.
The NLRB issues more than 1,200 complaints each year, so thousands of decisions were made by the general counsel or those to whom he delegated decision-making authority from January 5, 2011, to November 4, 2013. This challenge could allow many of those cases to be revisited.
But the case will have an impact on many other federal agencies, arguably going back to 1998. In April, the administration warned the Supreme Court that “Decisions of many former acting officers, including senior officers in the HHS Centers for Medicare and Medicaid Services, DOJ, DOT, Department of Defense, the Export-Import Bank and General Services Administration could be open to question under the court of appeals’ reasoning. Moreover, the decision below casts a cloud over the service of about half a dozen current acting high-level officers, including in the DOT, HHS, EPA and OPM.”
The Manufacturers’ Center for Legal Action is on the front lines challenging a variety of NLRB actions that skew policy and law against manufacturers in the United States. We look forward to oral arguments at the court on November 7 and a decision thereafter.
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