Supreme Court to hear high-stakes appeal over acting officials

By Robin Bravender | 06/20/2016 01:02 PM EDT

The U.S. Supreme Court has agreed to review an important case surrounding whether some nominees for federal agency jobs have been improperly “acting” in those roles.

The U.S. Supreme Court has agreed to review an important case surrounding whether some nominees for federal agency jobs have been improperly "acting" in those roles.

In a customary short order this morning, the justices announced they will hear the government’s appeal in National Labor Relations Board v. SW General Inc., a case where a federal appeals court last year found that an official at the National Labor Relations Board was on the job in violation of the law that governs agency vacancies.

That decision — and the Supreme Court’s review of the case — could have widespread implications for employees across government agencies working in posts that require Senate confirmation. The lower court’s decision has already sparked an inquiry from Senate Environment and Public Works Chairman Jim Inhofe (R-Okla.) into whether U.S. EPA’s acting No. 2 is eligible to be on the job.


"It will be closely watched, and it’s quite important," EPA’s former general counsel Scott Fulton said of the case heading to the Supreme Court. "In a situation where it’s difficult to get nominees confirmed, we really have to figure out ways to get the business of government done," added Fulton, who is now president of the Environmental Law Institute.

The U.S. Court of Appeals for the District of Columbia Circuit ruled last year that NLRB’s former acting general counsel Lafe Solomon had served in violation of the Federal Vacancies Reform Act (FVRA) after he was nominated for the job in 2011. The judges said the law prevents certain nominees from staying on the job once they are formally nominated to the post. The court also said that an unfair labor practice complaint issued by NLRB after Solomon was nominated hadn’t been authorized.

That unanimous decision was written by Judge Karen Henderson, a George H. W. Bush appointee. She was joined by two appointees of President Obama’s, Judges Sri Srinivasan and Robert Wilkins.

Obama administration attorneys asked the high court to review the lower court’s ruling, arguing that the judges misinterpreted the law and threw into doubt important decisions made across the executive branch.

"The court of appeals’ decision is not only wrong and contrary to settled interpretation and practice, but the court’s interpretation of the FVRA also significantly curbs the President’s appointment authority," Justice Department attorneys wrote in their request that the justices hear their appeal.

The lower court’s decision "calls into question high-level actions in the Executive Branch under three different Presidents," they wrote. "Moreover, the decision below casts a cloud over the service of about half a dozen current acting high level officers," including officials at EPA, the Transportation Department, the Office of Personnel Management, and the Department of Health and Human Services, they said.

Inhofe has already used that decision to question the service of EPA’s acting Deputy Administrator Stan Meiburg.

The Oklahoma Republican sent a letter to EPA Administrator Gina McCarthy in March, citing the D.C. Circuit’s opinion and calling it "unclear" whether Meiburg had the legal authority to remain acting on the job since he had been nominated to permanently fill the post (Greenwire, March 8).

Many positions at EPA and other federal agencies that require Senate confirmation haven’t been filled permanently and are likely to remain vacant for the duration of the Obama administration.

EPA general counsel Avi Garbow wrote back to Inhofe in April, defending Meiburg’s eligibility to serve on an acting basis (E&ENews PM, May 2).

Fulton said EPA’s deputy chief plays an administrative role, but isn’t a decisionmaker on most major issues. "The way that the authorities are constructed at the Environmental Protection Agency, the authority on most matters of consequence resides either with the administrator or the programmatic assistant administrators," he said.

Daniel Pasternak, a partner at Squire Patton Boggs who focuses on labor and employment law, said it’s possible that the high court could issue a narrow opinion that’s limited to the facts of the NLRB case.

The D.C. Circuit emphasized in its ruling "the narrowness" of its decision, saying, "We do not expect it to retroactively undermine a host of NLRB decisions."

In another major ruling involving NLRB, the justices ruled in 2014 in the case National Labor Relations Board v. Noel Canning that Obama exceeded his constitutional authority when he named three to the agency when the Senate was not technically in recess (Greenwire, June 26, 2014).

The justices are expected to hear the vacancies case in their next term that kicks off in October.