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Media Alerts - SW General, Inc. v. NLRB -- D.C. Circuit
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August 12, 2015
  SW General, Inc. v. NLRB -- D.C. Circuit
Headline: D.C. Circuit concludes NLRB's Acting General Counsel was appointed in violation of Federal Vacancies Reform Act and invalidates NLRB order

Issue Presented: Whether the NLRB's Acting General Counsel from January 2011 to November 2013 was appointed in violation of the Federal Vacancies Reform Act, and if so, whether an employer can successfully raise this violation as a defense to an enforcement proceeding.

Area of Law: Separation of Powers, Federal Vacancies Reform Act

Brief Summary: In June 2010, upon resignation of the duly-appointed NLRB General Counsel, President Obama directed Lafe Solomon, then-Director of the NLRB's Office of Representation Appeals, to serve as Acting General Counsel. The President cited the Federal Vacancies Reform Act (FVRA), 5 U.S.C. ยง 3345, as authority for the appointment. Six months later, in January 2011, the President nominated him to be General Counsel, but the Senate returned the nomination. In May 2013, the President resubmitted the nomination but ultimately withdrew it, instead nominating Richard Grifffin, whom the Senate confirmed in October 2013. Solomon served as Acting General Counsel from June 2010 to November 2013.

During this period, the NLRB filed a complaint against SW General raising various violations of the National Labor Relations Act, which ultimately led to findings that SW General had committed unfair labor practices. SW General petitioned the D.C. Circuit for review, reiterating its contention, among other claims, that Acting General Counsel Solomon was serving in violation of the FVRA.

The D.C. Circuit agreed that Solomon was serving in violation of the FVRA and vacated the NLRB's order. Reading subsection (b)(1) of the statute, the court concluded that Solomon could no longer serve as Acting General Counsel once the President nominated him for the office in January 2011. In so doing, the court rejected the NLRB's argument that the limitation in (b)(1) applied only to first assistants who became acting officers under subsection (a)(1), not to those assuming the position under (a)(2) or (a)(3). The court noted that (b)(1)'s plain language, including use of "a person" as opposed to "a first assistant" and use of "this section," which implied application to the entirety of section 3345, confirmed its reading of the statute. The court declined to read the "Notwithstanding subsection (a)(1)" language that started subsection (b)(1) as support for the NLRB's argument, reasoning that context and plain language negated the inference that this dependent clause imposed a limitation on the application of (b)(1) to other subsections of (a). Because Solomon did not fit within any statutory exception and the President nominated him to serve as General Counsel in January 2011, the FVRA prohibited him from serving as Acting General Counsel from that day forward.

Turning to the consequences of this conclusion, the court noted that section 3348(e)(1) of the FVRA excepted the General Counsel of the NLRB from its baseline instruction that any action taken in violation of the FVRA is void ab initio and cannot be ratified. The court thus examined whether the FVRA violation was harmless and concluded that, given the significant prosecutorial discretion exercised by Solomon, it could not be confident that a complaint against SW General would have issued under another Acting General Counsel. The court rejected the NLRB's urged application of the de facto officer doctrine, noting that it had previously permitted collateral attacks on an official's authority as defenses to enforcement actions.

Finally, the court emphasized the narrowness of its decision, underscoring that petitioner had raised the FVRA objection at several points during the underlying proceedings. The court doubted that any employer who had failed to timely raise such objections would enjoy similar success.

For the full text of the opinion, please visit

Panel: Henderson, Srinivasan, Wilkins

Argument Date: March 10, 2015

Date of Issued Opinion: August 7, 2015

Docket Number: 14-1107

Decided: Petition granted and NLRB order vacated.

Case Alert Author: Elizabeth Earle Beske

Counsel: Alison N. Davis and Sherron McClain for petitioner. Kellie J. Isbell, Richard Griffin Jr., John H. Ferguson, Linda Dreeben, and Robert J. Englehart for respondent.

Author of Opinion: Henderson

Case Alert Circuit Supervisor: Elizabeth Earle Beske, Ripple Weistling

Edited: 08/12/2015 at 10:30 AM by Ripple Weistling

    Posted By: Ripple Weistling @ 08/12/2015 10:19 AM     DC Circuit  

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