In June 2010, pursuant to his authority under the FVRA, President Obama named senior National Labor Relations Board (NLRB) official Lafe Solomon to serve as the Board’s Acting General Counsel. He then subsequently nominated Solomon to serve as the NLRB’s permanent General Counsel. In January 2013, while Solomon was acting as General Counsel, a Regional Director brought on his behalf a claim of unfair labor practices against SW General, Inc. SW General filed a petition for review in the D.C. Circuit Court of Appeals, claiming that because Solomon had been nominated to serve as the permanent General Counsel, he was no longer authorized to serve as acting General Counsel in the meantime. The court of appeals agreed, holding that the FVRA prohibits any person from serving as an acting officer and also being designated as the permanent nominee unless he previously served as first assistant to the office in question.

On August 19, 2016, CAC filed a friend-of-the-court brief in support of the NLRB, arguing that the decision of the D.C. Circuit improperly interpreted the FVRA. As we argued in our brief, the Framers of the Constitution recognized that the President’s ability to staff the executive branch was critically important. They drafted the Constitution to create a strong, independent Executive Branch that would be led by a single President, and they recognized that the President would need subordinate officers to aid him in his constitutional responsibility to execute the nation’s laws. The FVRA ensures that the President can, subject to certain limitations, temporarily fill executive branch offices that require Senate confirmation while the Senate advice and consent process is ongoing. By interpreting one of those limitations too broadly, we argued, the court of appeals had undermined the President’s ability to temporarily fill executive branch vacancies with the individuals best equipped to fill them permanently. Moreover, as our brief also argued, the interpretation adopted by the court of appeals was at odds with the text and history of the FVRA, both of which make clear that the provision on which the court of appeals relied applies only to individuals who were previously first assistants to the office, not to senior agency officials like Lafe Solomon.

The Court heard oral arguments on November 7, 2016. On March 21, 2017, the Court affirmed the decision of court of appeals by a 6-2 vote. In an opinion by Chief Justice Roberts, the Court held that the FVRA prohibits any person from serving as an acting officer and also being designated as the permanent nominee, unless that person has previously served as first assistant to the office in question. Justice Sotomayor, joined by Justice Ginsburg, dissented. Making some of the same arguments we made in our brief, Justice Sotomayor concluded that “the text, purpose, and history of the FVRA make clear that the prohibition in subsection (b)(1) applies only to a first assistant who performs the duties of a vacant office under subsection (a)(1).”