On March 21, 2017, the U.S. Supreme Court finally resolved the issue of Lafe Solomon’s role as Acting General Counsel of the NLRB in National Labor Relations Board v. SW General, Inc. In an opinion authored by Chief Justice Roberts, the Supreme Court held that Solomon’s position as Acting General Counsel violated The Federal Vacancies Reform Act of 1998 (“FVRA”) once he was nominated by then President Obama for the permanent position. Generally, Article II of the U.S. Constitution requires the President to obtain Senate approval to appoint “Officers of the United States,” but the FVRA allows the President to appoint a limited class of individuals to serve as acting officers on a temporary basis until a replacement can be confirmed by the Senate. Pursuant to the FVRA, certain individuals who are nominated for a permanent position may not serve as an acting officer.
In June 2010, a vacancy arose in the general counsel position for the NLRB. Then President Obama appointed Solomon to serve as Acting General Counsel on a temporary basis, and several months later, nominated him to serve as the General Counsel. Solomon’s temporary position did not require Senate confirmation, but the permanent position did. However, the Senate refused to act on Solomon’s nomination, and Obama was forced to Continue reading