Supreme Court hears case testing president's power to fill agency vacancies

Supreme Court hears case testing president's power to fill agency vacancies
© Greg Nash

The Supreme Court on Monday appeared divided on a case testing the president’s power to fill agency vacancies.

Justice Stephen Breyer wanted to know why Congress would write a law that allows the president to temporarily fill a vacancy with an official from another agency or an official from another department within the agency, but not allow him to nominate that person to fill the position permanently.


“Okay, I would just wonder were I from Mars,” he said. “What’s the point of such a statute?”

The case, NLRB v. SW General Inc., stems from an unfair labor practice complaint the National Labor Relations Board waged against an Arizona-based ambulance service. A lower court tossed out the complaint after finding the NLRB’s acting general counsel in violation of the Federal Vacancies Reform Act (FVRA).

That law prohibits a person from being both the acting officer and the permanent nominee unless that person served as the first assistant to the office in question for at least 90 of the last 365 days.

SW General argued that Lafe Solomon was stripped of his authority as the NLRB’s acting general counsel when President Obama nominated him to permanently fill the role because he had been the director of the NLRB’s Office of Representation Appeals instead of its first assistant before the temporary appointment.

The NLRB argued that the 90-day requirement only applies when the first assistant takes over automatically, adding that the president can also choose to fill an agency vacancy with an officer from another agency or a senior employee within the same agency under the FVRA.

Chief Justice John Roberts, who made sure to refer to the government’s attorney, Ian Gershengorn, by his current title, ”acting solicitor general,” pushed back against the argument that Congress has been aware of the president’s interpretation of the statute since it passed and has raised no objections to it.

“Well I think you’re putting a significant burden on Congress to sort of speak up,” he told Gershengorn. “There's sort of an estoppel against Congress.”

The justices spent much of Monday's oral arguments grappling with how that restriction on temporary appointments relates to the other provisions in the law that provide the president with some flexibility.

Justice Ruth Bader Ginsburg asked SW General’s attorney, Shay Dvoretzky, if it would have made a difference if the Senate had confirmed Solomon’s appointment.

“So he's confirmed for the permanent office. Yet, under your reading, everything that he did while he was acting is invalidated. Is that right?” she asked.

Dvoretzky said Solomon's actions wouldn’t necessarily be invalidated, but under SW General’s reading of the law, he would have had to step aside.

Ginsburg pressed further, asking why the 90-day requirement is lifted if a first assistant is confirmed by the Senate, but not for people who are presidentially appointed and senatorially confirmed from other agencies.

“Why wouldn't they be treated the same way if the stress is on having someone that the Senate wants approved?” she asked.

In its petition for review, NLRB said there are six senior positions in the Department of Treasury, Department of Health and Human Services, Environmental Protection Agency, Department of Transportation and Office of Personnel Management that are filled by acting officers who have also been nominated to fill these offices on a permanent basis.

But Justice Anthony Kennedy noted that the government had not listed a “great parade of horribles” if the court were to rule in favor of SW General.

--This report was updated at 2:30 p.m.