796 F.3d 67 (D.C. Cir. 2015), 14-1107, SW Gen. Inc. v. National Labor Relations Bd.

Docket Nº14-1107, 14-1121
Citation796 F.3d 67
Opinion JudgeKaren Lecraft Henderson, Circuit Judge :
AttorneyAlison N. Davis argued the cause for the petitioner. Sherron McClain was with her on brief. Jennifer W. Thomas entered an appearance. Kellie J. Isbell, Attorney, National Labor Relations Board, argued the cause for the respondent. Richard Griffin, Jr., General Counsel, John H. Ferguson, Associate...
Judge PanelBefore: HENDERSON, SRINIVASAN and WILKINS, Circuit Judges.
Case DateAugust 07, 2015
CourtUnited States Courts of Appeals, United States Courts of Appeals. United States Court of Appeals (District of Columbia)

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796 F.3d 67 (D.C. Cir. 2015)




Nos. 14-1107, 14-1121

United States Court of Appeals, District of Columbia Circuit

August 7, 2015

Argued March 10, 2015.

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On Petition for Review and Cross-Application for Enforcement of an Order of the National Labor Relations Board.

Alison N. Davis argued the cause for the petitioner. Sherron McClain was with her on brief. Jennifer W. Thomas entered an appearance.

Kellie J. Isbell, Attorney, National Labor Relations Board, argued the cause for the respondent. Richard Griffin, Jr., General Counsel, John H. Ferguson, Associate General Counsel, Linda Dreeben, Deputy Associate General Counsel, and Robert J. Englehart, Supervisory Attorney, were with her on brief.

Before: HENDERSON, SRINIVASAN and WILKINS, Circuit Judges.


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Karen Lecraft Henderson, Circuit Judge :

This case involves a labor dispute between an ambulance company and its employees. We do not reach the merits of that dispute, however, because we conclude that Lafe Solomon, the former Acting General Counsel of the National Labor Relations Board (NLRB or Board), served in violation of the Federal Vacancies Reform Act of 1998 (FVRA), 5 U.S.C. § § 3345 et seq. Accordingly, the unfair labor practice (ULP) complaint issued against the ambulance company was unauthorized. We grant the petition for review, deny the cross-application for enforcement and vacate the Board's order.



Vacancy Statutes

The FVRA is a response to what Chief Justice John Marshall called " the various crises of human affairs" --problems that arise when our Constitution confronts the realities of practical governance. McCulloch v. Maryland, 17 U.S. 316, 415, 4 L.Ed. 579 (1819). Specifically, the Appointments Clause generally requires " Officers of the United States" to be nominated by the President " by and with the Advice and Consent of the Senate." U.S. Const. art. II, § 2, cl. 2. Advice and consent is " more than a matter of etiquette or protocol" ; it is a " structural safeguard[]" intended to " curb Executive abuses of the appointment power" and to " promote a judicious choice of persons for filling the offices of the union." Edmond v. United States, 520 U.S. 651, 659, 117 S.Ct. 1573, 137 L.Ed.2d 917 (1997) (quotation marks and alterations omitted). But vacancies can occur unexpectedly (due to death, resignation, illness, etc.) and the confirmation process takes time. See Anne Joseph O'Connell, Waiting for Leadership at 10 fig. 5 (2010) (finding average

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lag time of 190 days between vacancy and confirmation). To keep the federal bureaucracy humming, the President needs the power to appoint acting officers who can serve on a temporary basis without first obtaining the Senate's blessing.

Since the " beginning of the nation," the Congress has given the President this power through vacancy statutes. Doolin Sec. Sav. Bank, F.S.B. v. Office of Thrift Supervision, 139 F.3d 203, 209-10, 329 U.S.App.D.C. 166 (D.C. Cir. 1998) (citing, inter alia, Act of May 8, 1792, ch. 37, § 8, 1 Stat. 279, 281).[1] The predecessor to the FVRA, the Vacancies Act, was first enacted in 1868. See Act of July 23, 1868, ch. 227, 15 Stat. 168. The Vacancies Act allowed the President to fill vacancies with temporary acting officers, subject to limitations on whom he could appoint and how long the appointee could serve. See Pub. L. No. 89-554, 80 Stat. 378, 426 (Sept. 6, 1966); Pub. L. No. 100-398, 102 Stat. 985, 988 (Aug. 17, 1988).

Presidents, however, have not always complied with the Vacancies Act. See Morton Rosenberg, Cong. Research Serv., 98-892 A, The New Vacancies Act: Congress Acts to Protect the Senate's Confirmation Prerogative 2-3 (1998). By 1998, an estimated 20% of all officers in positions requiring presidential nomination and Senate confirmation (PAS positions) were serving in a temporary acting capacity, many well beyond the time limits prescribed in the Vacancies Act. See id. at 1. Nor was the Vacancies Act particularly amenable to judicial enforcement. In Doolin, for example, we did not decide whether the acting director of the Office of Thrift Supervision lacked statutory authority because we determined that any error in his appointment was cured. See 139 F.3d at 214. We relied on the doctrine of ratification: because the director's decision was later approved by a properly appointed director, any defect in his appointment was immaterial. See id. at 212-14. Our decision in Doolin, along with the President's appointment of Bill Lann Lee to be Acting Attorney General of Civil Rights in 1997, prompted congressional action. See Rosenberg, supra, at 1, 8.

In June 1998, Senators Fred Thompson, Robert Byrd, Strom Thurmond and others introduced the FVRA to strengthen, and ultimately replace, the Vacancies Act. See 144 cong. Rec. S6413-14 (daily ed. June 16, 1998) (statement of Sen. Thompson). The statute was framed as a reclamation of the Congress's Appointments Clause power. See id. at S6413 (" This legislation is needed to preserve one of the Senate's most important powers: the duty to advise and consent on presidential nominees." ); S. Rep. No. 105-250, at 5 (1998) (" If the Constitution's separation of powers is to be maintained, . . . legislation to address the deficiencies in the operation of the current Vacancies Act is necessary. . . . [T]he Senate's confirmation power is being undermined as never before." ). After some amendment, the FVRA was enacted in October 1998. See Pub. L. No. 105-277, div. C, tit. I, § 151.

The FVRA provides that, in the event of a vacancy in a PAS position, the " first assistant" automatically takes over in an acting capacity. 5 U.S.C. § 3345(a)(1). The President can also choose to appoint a senior employee from the same agency or a PAS officer from another agency to serve as the acting officer. Id. § 3345(a)(3), (a)(2). Generally speaking, an acting officer can serve no longer than 210 days and cannot become the permanent

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nominee for the position. See id. § § 3346; 3345(b). Moreover, in response to Doolin, the FVRA renders actions taken by persons serving in violation of the Act void ab initio. See id. § 3348(d)(1)--(2) (" An action taken by any person who is not acting [in compliance with the FVRA] shall have no force or effect" and " may not be ratified." ); see also 144 Cong. Rec. S6414 (explaining that the FVRA " impose[s] a sanction for noncompliance," thereby " [o]verruling several portions of [ Doolin ]" ); S. Rep. No. 105-250, at 5 (" The Committee . . . finds that th[e ratification] portion of [ Doolin ] demands legislative response. . . ." ).


NLRB General Counsel Vacancy

Under the National Labor Relations Act (NLRA), the General Counsel of the N.L.R.B. must be appointed by the President with the advice and consent of the Senate. 29 U.S.C. § 153(d). He is primarily responsible for prosecuting ULP cases before the Board. Id. Indeed, the Board cannot adjudicate a ULP dispute until the General Counsel decides a charge has merit and issues a formal complaint. See id. § 160(b); 29 C.F.R. § § 102.9, 102.15. To manage the volume of ULP charges filed each year, the General Counsel has delegated his authority to investigate charges and issue complaints to thirty-two regional directors. See

NLRB v. Sears, Roebuck & Co., 421 U.S. 132, 139, 95 S.Ct. 1504, 44 L.Ed.2d 29 (1975) (citing 29 C.F.R. § § 101.8; 102.10). The General Counsel, however, retains " final authority" over charges and complaints and exercises " general supervision" of the regional directors. 29 U.S.C. § 153(d).

In June 2010, Ronald Meisburg resigned as N.L.R.B. General Counsel. The President directed Lafe Solomon, then--Director of the NLRB's Office of Representation Appeals, to serve as the Acting General Counsel in Meisburg's stead. See Memorandum from the White House for Lafe E. Solomon (June 18, 2010). The President cited the FVRA as the authority for Solomon's appointment. See id. (invoking " section 3345(a) of title 5" ).2 On January 5, 2011--six months into Solomon's temporary appointment--the President nominated him to be General Counsel. 157 Cong. Rec. S69 (daily ed. Jan. 5, 2011). The Senate, however, returned Solomon's nomination. 159 Cong. Rec. S17 (daily ed. Jan. 3, 2013). The President resubmitted Solomon's nomination on May 24, 2013, 159 Cong. Rec. S3884 (daily ed. May 23, 2013), but ultimately withdrew it and nominated Richard Griffin instead, who was confirmed by the Senate on October 29, 2013. 159 Cong. Rec. S7635 (daily ed. Oct. 29, 2013). All told, Solomon served as Acting General Counsel from June 21, 2010 to November 4, 2013.

C. Board Proceedings Against Southwest

SW General, Inc. (Southwest) provides ambulance services to hospitals in Arizona. Its emergency medical technicians, nurses and paramedics are represented by the International Association of Fire Fighters Local I-60, AFL-CIO (Union). The most recent collective bargaining agreement between

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Southwest and the Union contained a " Longevity Pay" provision, guaranteeing annual bonuses to Southwest employees who had been with the company for at least ten years. In December 2012--after the collective bargaining agreement expired but before the parties negotiated a replacement--Southwest stopped paying the longevity bonuses.

The Union immediately filed a ULP charge with the NLRB. Regional Director Cornele Overstreet issued a formal complaint on January 31, 2013, alleging that Southwest had unilaterally discontinued longevity payments in violation of sections 8(a)(1) and 8(a)(5) of the NLRA, 29 U.S.C. § 158(a)(1), (5). After a hearing, an administrative law judge (ALJ)...

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121 practice notes
  • 442 F.Supp.3d 1 (D.D.C. 2020), C. A. 19-2676 (RDM), L.m.-M. v. Cuccinelli
    • United States
    • Federal Cases United States District Courts United States District Court (Columbia)
    • March 1, 2020
    ...179-80 (2001) (rejecting that view), and that the courts have not had the occasion to resolve, see S.W. General, Inc., 796 F.3d at 76 ("Although we do not decide its meaning today," the default rule "may refer to the person who is serving as first ass......
  • Northwest Immigrant Rights Project v. United States Citizenship And Immigration Services, 100920 DCDC, C. A. 19-3283 (RDM)
    • United States
    • Federal Cases United States District Courts United States District Court (Columbia)
    • October 9, 2020
    ...actions, therefore, were not in accordance with law for purposes of the APA, see 5 U.S.C. § 706(2). NLRB v. SW General, Inc., 796 F.3d 67, provides a helpful starting point for considering this argument. In that case, the D.C. Circuit held that the Acting General Counsel......
  • Rodriguez v. Penrod, 021120 DCDC, C. A. 1:18-cv-00240 (CJN)
    • United States
    • Federal Cases United States District Courts United States District Court (Columbia)
    • February 11, 2020
    ...Federal Vacancies Reform Act of 1998, Pub. L. No. 105-277, 122 Stat. 2681 (1998), as recognized in S.W. Gen., Inc. v. NLRB, 796 F.3d 67, 70-71 (D.C. Cir. 2015), aff'd 137 S.Ct. 929 (2017); FEC v. Legi-Tech, Inc., 75 F.3d 704, 707-709 (D.C. Cir. 1996) (upholding Comm......
  • Lopez v. Dart, 092818 ILCA1, 1-17-0733
    • United States
    • Illinois United States Appellate Court of Illinois First District
    • September 28, 2018
    ...and "collateral" attacks on an officer's authority. SW General, Inc. v. National Labor Relations Board, 796 F.3d 67, 81 (D.C. Cir. 2015) (citing Andrade, 729 F.2d at 1496). A collateral attack challenges "government action on the ground that the offic......
  • Request a trial to view additional results
14 cases
  • Total Security Management, Inc., (2016)
    • United States
    • August 26, 2016
    ...him to do so. See Hooks v. Kitsap Tenant Support Services, Inc., 816 F.3d 550, 556, 557 (9th Cir. 2016); S.W. General, Inc. v. NLRB, 796 F.3d 67, 73 (D.C. Cir. 2015), petition for rehearing en banc denied, Case No. 14–1107 (Jan. 20, 2016), petition for cert. granted 136 S.Ct. 2489 (Mem.) (J......
  • Advanced Life Systems, Inc., (2016)
    • United States
    • August 27, 2016
    ...directed him to do so. See Hooks v. Kitsap Tenant Support Services, Inc. , 816 F.3d 550, 556 (9th Cir. 2016); SW General, Inc. v. NLRB, 796 F.3d 67, 73 (D.C. Cir. 2015), cert. granted, 136 S. Ct. 2489 (2016). Thus, Solomon properly assumed the duties of Acting General Counsel and we find no......
  • Butler Medical Transport, LLC, (2017)
    • United States
    • July 27, 2017
    ...preclude the ratifica-tion of certain actions of other persons found to have served in viola-tion of the FVRA. [SW General, Inc. v. NLRB, 796 F.3d 67, 78 (D.C. Cir. 2015)] (citing 5 U.S.C. § 3348(e)(1)). For the foregoing reasons, I hereby ratify the issuance and continued prosecution of th......
  • Wal-mart Stores, Inc., (2019)
    • United States
    • July 25, 2019
    ...serve as Acting General Counsel until January 2011, when the President nominated him for the position of General Counsel. See SW General, 796 F.3d at 72–74 (citing and discussing 5 U.S.C. § 3345, disciplining or terminating 55 associates for absences that pri-marily occurred in May and June......
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3 firm's commentaries
  • Can Reference Product Sponsor Forfeit Right To Sue Under BPCIA?
    • United States
    • JD Supra United States
    • July 28, 2016
    ...Bruce v. Wells Fargo Bank, N.A., No. 2:05 CV 243 PS, 2006 WL 1195210, at *4 (N.D. Ind. May 2, 2006). [22] SW General, Inc. v. N.L.R.B., 796 F.3d 67, 74 (D.C. Cir. 2015). [23] § 271(e)(3). [24] § 271(e)(6)(C). [25] 35 U.S.C. § 271(h)-(i). Subsection (h) address governmental liability, wherea......
  • With the Election (Mercifully) Behind Us, What Will a Trump Administration Mean for Employers?
    • United States
    • JD Supra United States
    • November 10, 2016
    ...however, that if the employee had a choice to opt out of arbitration and failed to do so, the agreement would have been enforced). 8 796 F.3d 67 (D.C. Cir. 2015). 9 804 F.3d 1051 (9th Cir. 2015). 10 2016 U.S. App. LEXIS 12891 (5th Cir. July 11, 2016). 11 136 S. Ct. 1083 (2016). 12 Donald Tr......
  • Supreme Court Rules President’s Power to Make Temporary Appointments is Limited
    • United States
    • JD Supra United States
    • March 22, 2017
    ...serving Acting General Counsel voidable” (meaning, not void) and rejected the Board’s argument against voiding all of Solomon’s actions. 796 F.3d 67, 79-82 (D.C. Cir. 2015). As a result, despite the fact that Solomon served as Acting General Counsel in violation of the FVRA, the NLRB was pe......
1 books & journal articles
  • Congressional Power over Office Creation.
    • United States
    • Yale Law Journal Vol. 128 Nbr. 1, October 2018
    • October 1, 2018
    ...Vacancies Reform Act of 1998, Pub. L. No. 105-277, [section] 151, 112 Stat. 2681, 2681-611 to-616, as recognized in SW Gen., Inc. v. NLRB, 796 F.3d 67, 70-71 (D.C. Cir. 2015). See generally VALERIE C. BRANNON, CONG. RESEARCH SERV., R44997, THE VACANCIES ACT: A LEGAL OVERVIEW (Oct. 30, 2017)......

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