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NLRB v. SW General Inc.

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Supreme Court of the United States
NLRB v. SW General Inc.
Reference: 15-1251
Issue: Appointments
Term: 2016
Important Dates
Argued: November 7, 2016
Decided: March 21, 2017
Outcome
D.C. Circuit Court of Appeals affirmed
Vote
6-2 to affirm
Majority
Chief Justice John G. Roberts • Anthony Kennedy • Clarence Thomas • Stephen Breyer • Samuel Alito • Elena Kagan
Concurring
Clarence Thomas
Dissenting
Ruth Bader Ginsburg • Sonia Sotomayor


National Labor Relations Board v. SW General, Inc., d/b/a Southwest Ambulance is a case argued during the October 2016 term of the U.S. Supreme Court. Argument in the case was held on November 7, 2016. The case came on a writ of certiorari to the United States Court of Appeals for the District of Columbia Circuit. On March 21, 2017, in a 6-2 opinion by Chief Justice John G. Roberts, the court affirmed the D.C. Circuit. The court held that an individual who has been nominated by the president to a position requiring Senate confirmation cannot serve in that position in an acting capacity once nominated.

HIGHLIGHTS
  • The case: The National Labor Relations Board (NLRB) alleged SW General Inc. committed unfair labor practices (ULP) and enforced a modified judicial order against the company. The company, however, alleged that the acting general counsel for the NLRB at the time of the allegations was serving in violation of federal law. Accordingly, the company argued the Board's order against the company must be vacated. The D.C. Circuit agreed with SW General Inc.
  • The issue: Was the acting general counsel of the NLRB serving in violation of a federal law, the Federal Vacancies Reform Act of 1998 (RVRA), at the time the Board alleged unfair labor practices against SW General Inc.?
  • The outcome: On March 21, 2017, in a 6-2 opinion by Chief Justice John G. Roberts, the court affirmed the D.C. Circuit. The court held that an individual who has been nominated by the president to a position requiring Senate confirmation cannot serve in that position in an acting capacity once nominated.


    • In brief: SW General Inc., which does business as Southwest Ambulance, was charged with unfair labor practices (ULP) by the National Labor Relations Board (NLRB). An administrative law judge agreed with the NLRB's assessment. Southwest filed an exception to the judge's ruling, challenging that the ULP complaint was invalid because the then-acting general counsel for the NLRB, Lafe Solomon, was serving in violation of the Federal Vacancies Reform Act of 1998 (FVRA). A three-judge panel of the United States Court of Appeals for the District of Columbia Circuit agreed with Southwest and vacated the NLRB's order against Southwest. Oral argument before the U.S. Supreme Court was held on November 7, 2016.

    You can review the D.C. Circuit's opinion here.[1]

    Click on the tabs below to learn more about this Supreme Court case.

    Case


    Background

    SW General Inc. does business as Southwest Ambulance (Southwest). Southwest provides ambulance services including EMT, paramedic, and nursing services to hospitals in Arizona. Its employees are represented by a union and employment is subject to conditions of a collective bargaining agreement (CBA) between Southwest and the union. A provision of a CBA between Southwest and the union guaranteed yearly bonuses to employees who had been with Southwest for at least 10 years. In December 2012, a period in which the CBA had expired and a successor CBA had yet to be reached between the parties, Southwest ceased payment of the longevity bonuses. The union filed an unfair labor practices (ULP) charge against Southwest with the National Labor Relations Board (NLRB). The NLRB issued a formal complaint through a NLRB regional director. After a hearing, an administrative law judge agreed with the Board's judgment that Southwest had committed a ULP violation. Southwest filed numerous exceptions to the judge's decision, including an exception challenging the ULP complaint on the grounds that the acting general counsel of the NLRB, Lafe Solomon, was serving in violation of a federal law, the Federal Vacancies Reform Act of 1998 (FVRA). The Board adopted the judge's order with minor modifications. The Board did not answer Southwest's FVRA exception. Southwest petitioned the United States Court of Appeals for the District of Columbia Circuit to review the Board's order and the Board cross-appealed for enforcement of the order. A three-judge panel comprised of Judges Karen Henderson, Sri Srinivasan, and Robert Leon Wilkins heard the appeal. Judge Henderson wrote the opinion for a unanimous panel.[1]

    According to the panel opinion, the key provision of the FVRA for this case was 5 U.S.C. §3345. Under §3345(a)(1), if a vacancy occurs in a position subject to nomination by the president and confirmation by the U.S. Senate - what is known as a PAS position - the "first assistant" automatically takes over in an acting capacity. Under §3345(a)(2) and §3345(a)(3), the president may also appoint a PAS officer from another agency, (a)(2), or a senior-level employee of the same agency, (a)(3), to serve in the capacity of the acting officer. The acting officer generally is limited to 210 days in that capacity. The acting officer is also unable to become a permanent nominee for the position while serving in an acting capacity.[1]

    The general counsel of the NLRB is a PAS position. The general counsel has primary responsibility for prosecuting ULP cases and the Board cannot adjudicate a ULP dispute until the NLRB general counsel files a formal complaint. The general counsel has final authority over all complaints and charges filed by any subordinates and exercises "general supervision" over regional directors. In June 2010, Lafe Solomon was named acting general counsel of the NLRB by President Barack Obama under §3345(a)(3). In January 2011, the president nominated Solomon to be NLRB general counsel, but the U.S. Senate returned Solomon's nomination to the president. The president resubmitted Solomon's nomination, but later withdrew the nomination and nominated Richard Griffin instead. Griffin was confirmed in October of 2013. According to the panel opinion, "All told, Solomon served as Acting General Counsel from June 21, 2010, to November 4, 2013."[1]

    In its appeal, Southwest claimed that Solomon was not able to serve as acting general counsel once the president nominated him in January 2011 to be general counsel. According to another provision of the FVRA, §3345(b)(1), a person is prohibited "from being both the acting officer and the permanent nominee unless (1) he served as the first assistant to the office in question for at least 90 of the last 365 days or (2) he was confirmed by the Senate to be the first assistant." Solomon was never first assistant general counsel at the NLRB.

    The Board countered, however, that the provisions cited here were not applicable in Solomon's case. The Board's argument was that §3345(b)(1) is only operative against first assistants who automatically assume the position of acting officer under §3345(a)(1), but not to other individuals directed by the president to serve in an acting capacity, either under §3345(a)(2) or §3345(a)(3). Solomon was named acting general counsel under §3345(a)(3), so the Board argued the provisions of §3345(b)(1) don't apply.

    Southwest argued that all acting officers are bound by §3345(b)(1) and that Solomon's January 2011 presidential nomination to be NLRB general counsel rendered him unable to serve as acting general counsel under the FVRA from January 2011 onwards. The D.C. Circuit agreed with Southwest and vacated the Board's order against Southwest.[1] The NLRB appealed to the Supreme Court of the United States.

    Petitioner's challenge

    The NLRB is seeking clarity from the U.S. Supreme Court whether §3345(b)(1) of the FVRA applies only to first assistants who assumed acting officer capacity under §3345(a)(1), or whether the provisions are binding on all individuals who serve in an acting officer capacity, including officers serving under §3345(a)(2) and §3345(a)(3).

    Certiorari granted

    On April 6, 2016, the National Labor Relations Board, the petitioner, initiated proceedings in the Supreme Court of the United States in filing a petition for a writ of certiorari to the United States Court of Appeals for the District of Columbia Circuit. The U.S. Supreme Court granted the NLRB's certiorari request on June 20, 2016. Oral argument before the Supreme Court was held on November 7, 2016.

    Arguments


    Question presented

    Question presented:

    "Whether the precondition in 5 U.S.C. 3345(b)(1) on service in an acting capacity by a person nominated by the President to fill the office on a permanent basis applies only to first assistants who take office under Subsection (a)(1) of 5 U.S.C. 3345, or whether it also limits acting service by officials who assume acting responsibilities under Subsections (a)(2) and (a)(3)."[2]


    Audio

    • Audio of oral argument:[3]



    Transcript

    • Transcript of oral argument:[4]

    Outcome

    Decision

    In a 6-2 decision by Chief Justice John G. Roberts, the Supreme Court affirmed the judgment of the D.C. Circuit Court of Appeals. Justice Clarence Thomas wrote a concurring opinion. Justice Sonia Sotomayor authored a dissenting opinion joined by Justice Ruth Bader Ginsburg. In the opinion, the court held that an individual who has been nominated by the president to a position requiring Senate confirmation cannot serve in that position in an acting capacity once nominated.[5]

    Opinion

    After a review of the facts and procedural record in the case, Chief Justice Roberts held that the court's interpretation of subsection (b)(1) of the Federal Vacancies Reform Act of 1998 (FVRA) prevented any individual from serving in an acting capacity in any vacant office subject to presidential nomination and Senate confirmation. A position requiring a presidential nomination and Senate confirmation is known as a PAS position. Subsection (b)(1) of the FVRA, codified under 5 U.S. Code § 3345, reads:

    (b)

    (1) Notwithstanding subsection (a)(1), a person may not serve as an acting officer for an office under this section, if—
    (A) during the 365-day period preceding the date of the death, resignation, or beginning of inability to serve, such person—
    (i) did not serve in the position of first assistant to the office of such officer; or
    (ii) served in the position of first assistant to the office of such officer for less than 90 days; and
    (B) the President submits a nomination of such person to the Senate for appointment to such office.

    In the court's view, the prohibition under this provision of the law applied to any person serving in an acting capacity and was not limited, as the NLRB argued, only to those first assistants serving in an acting capacity. In the words of Chief Justice Roberts,[5]

    “

    Applying the FVRA to this case is straightforward. Solomon was appointed as acting general counsel under subsection (a)(3). Once the President submitted his nomination to fill that position in a permanent capacity, subsection (b)(1) prohibited him from continuing his acting service. This does not mean that the duties of general counsel to the NLRB needed to go unperformed; the President could have appointed another person to serve as the acting officer in Solomon’s place. And he had a wide array of individuals to choose from: any one of the approximately 250 senior NLRB employees or the hundreds of individuals in PAS positions throughout the Government. The President, however, did not do so, and Solomon’s continued service violated the FVRA. [6]

    		”

    Concurring opinions

    Justice Clarence Thomas authored a concurring opinion. Though the justice felt that the court correctly interpreted the FVRA, he expressed concern that appointing principal officers under the FVRA could violate the Appointments Clause of the U.S. Constitution. In Justice Thomas' view,[5]

    “

    The FVRA authorizes the President to appoint both inferior and principal officers without first obtaining the advice and consent of the Senate. Appointing inferior officers in this manner raises no constitutional problems.That is because the Appointments Clause authorizes Congress to enact 'Law[s],' like the FVRA, 'vest[ing] the Appointment of such inferior Officers . . . in the President alone.' Appointing principal officers under the FVRA, however, raises grave constitutional concerns because the Appointments Clause forbids the President to appoint principal officers without the advice and consent of the Senate. Because we interpret the FVRA to forbid Solomon’s appointment in this case, we need not confront these concerns. But the dissent’s contrary interpretation necessarily raises the question whether that appointment complied with the requirements of the Appointments Clause. That inquiry turns on two considerations: (1) whether the general counsel of the NLRB is an 'Officer of the United States' within the meaning of the Appointments Clause and, if so, (2) whether he is a principal officer who can be appointed only by and with the advice and consent of the Senate. In my view, the general counsel plainly is an officer of the United States. I also think he is likely a principal officer. ... Because it appears that the general counsel answers to no officer inferior to the President, he is likely a principal officer. Accordingly, the President likely could not lawfully have appointed Solomon to serve in that role without first obtaining the advice and consent of the Senate. [6]

    		”

    Dissenting opinions

    Justice Sonia Sotomayor authored a dissenting opinion which was joined by Justice Ruth Bader Ginsburg. In the dissent, Justice Sotomayor argued that the text, purpose, and history of the FVRA supported the NLRB's position. Justice Sotomayor wrote,[5]

    “

    Congressional silence in the face of a decade-plus practice of giving subsection (b)(1) a narrow reach casts serious doubt on the broader interpretation. It indicates that Congress, like the Executive Branch, interpreted subsection (b)(1) in line with its text to reach only first assistants to the vacant office serving pursuant to subsection (a)(1). ... Reading the provision more broadly to apply to all acting officials disregards the full text of the FVRA and finds no support in its purpose or history. The Court prefers that reading. I respectfully dissent. [6]

    		”


    The opinion

    Filings

    The court granted the National Labor Relations Board's certiorari request on June 20, 2016.

    Merits filings

    Parties' filings

    • The National Labor Relations Board, the petitioner, filed a merits brief on August 12, 2016.
    • SW General Inc., the respondent, filed a merits brief on September 19, 2016.
    • The NLRB filed a reply brief on the merits on October 19, 2016.


    Amicus curiae filings

    The following groups filed amicus curiae briefs in support of the petitioner, the National Labor Relations Board.

    • Brief of the Constitutional Accountability Center


    The following groups filed amicus curiae briefs in support of the respondent, SW General Inc.

    • Brief of Morton Rosenberg
    • Brief of the National Federation of Independent Business et al.
    • Brief of the Southeastern Legal Foundation

    Certiorari filings

    Parties' filings

    • The National Labor Relations Board, the petitioner, filed a petition for certiorari on April 6, 2016.


    See also

    Footnotes

    1. ↑ 1.0 1.1 1.2 1.3 1.4 U.S. Court of Appeals for the District of Columbia Circuit, SW General, Inc., d/b/a Southwest Ambulance v. National Labor Relations Board, decided August 7, 2015
    2. ↑ Supreme Court of the United States, NLRB v. SW General, Inc., June 20, 2016
    3. ↑ Supreme Court of the United States, NLRB v. SW General, Inc., argued November 7, 2016
    4. ↑ Supreme Court of the United States, NLRB v. SW General, Inc., argued November 7, 2016
    5. ↑ 5.0 5.1 5.2 5.3 Supreme Court of the United States, National Labor Relations Board v. SW General, Inc. d/b/a Southwest Ambulance, decided March 21, 2017
    6. ↑ 6.0 6.1 6.2 Note: This text is quoted verbatim from the original source. Any inconsistencies are attributable to the original source.
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