Nat'l Labor Relations Bd. v. SW Gen., Inc.
The Court ruled that a federal law barring certain nominees from serving as "acting" officials applies broadly to anyone temporarily filling a vacant Senate-confirmed post, not just to the office's normal second-in-command.
As a result, the acting general counsel of the National Labor Relations Board had to stop performing that job once the President nominated him for the position permanently, which meant a labor complaint he authorized was invalid.
How it got here: An administrative law judge and the NLRB ruled against SW General; the D.C. Circuit vacated that ruling, finding Solomon's continued service unlawful, and the Board sought Supreme Court review.
The Case in Depth
What happened
In 2010, the general counsel of the National Labor Relations Board resigned, and President Obama directed Lafe Solomon, a senior NLRB employee, to serve as acting general counsel. In 2011 the President nominated Solomon for the permanent job, but the Senate never confirmed him and he was eventually replaced. While the nomination lingered, Solomon, still acting as general counsel, authorized a labor complaint against an ambulance company, SW General, which challenged his authority to do so.
The question before the Court
Can a federal law that lets the President temporarily fill a vacant top government job also apply to block someone from that acting role once the President nominates them for the permanent job?
The Court's answer
Yes — the law's ban on nominees serving as "acting officers" covers anyone temporarily filling a vacant Senate-confirmed post, not just the office's normal second-in-command who automatically steps in. The Court read the words "person" and "under this section" broadly, and concluded that a clause limiting the rule to conflicts with one specific provision didn't narrow who the ban covers.
Because Solomon was serving as acting general counsel under the provision letting the President designate a senior agency employee, the same nominee-ban applied to him once he was nominated for the permanent job. He should have stepped aside, and since he didn't, the labor complaint he authorized while ineligible was invalid.
Curious how the Court got there? See the step-by-step legal reasoning →
Why it matters
The decision limits how presidents can keep a favored nominee running an agency office while a Senate confirmation drags on or stalls. Agencies must find someone else to serve as acting head once a nominee is formally submitted, affecting staffing decisions across the federal government and the validity of actions those officials take.
What changes now
This is a final merits decision, not subject to further review. The labor complaint against SW General, authorized by an official who was no longer eligible to serve, remains invalid, and the underlying Board order against the company does not stand. More broadly, the executive branch must now ensure that nominees for Senate-confirmed positions step down from any acting role in that office once nominated, adjusting a practice used by multiple administrations.
What this does not decide
The Court did not decide whether the acting general counsel's appointment independently violated the Constitution's Appointments Clause, an issue Justice Thomas raised in concurrence. It also left undisturbed a separate provision allowing officials nominated for a second term in the same office to keep serving while that nomination is pending.
Concurrences and dissents
Concurrence — Justice Thomas
Justice Thomas agreed the statute barred the appointment but wrote separately to argue that, if the statute had allowed it, the appointment likely would have violated the Constitution's Appointments Clause. He reasoned the NLRB general counsel is an officer of the United States and probably a principal officer, who by the Constitution's terms can only be appointed with the Senate's advice and consent, regardless of what any statute permits.
Dissent — Justice Sotomayor
“The Court gives the provision a broader reach than the text can bear with no support from the history of, or practice under, the FVRA.”Sotomayor's core objection to the majority's reading of the statute.
Justice Sotomayor argued the ban on nominees serving as acting officers should apply only to the office's automatic first assistant, not to officials the President separately designated to serve temporarily. She pointed to the statute's text, structure, legislative history, and nearly two decades of unchallenged executive-branch practice interpreting the provision narrowly, arguing the majority's broader reading creates conflicts with other parts of the law and lacks support outside the bare text.
How the Court got there
The legal reasoning, step by step
- The Court started with the text of the provision barring certain people from acting service, which applies to any "person" serving "as an acting officer for an office under this section" — language the Court read as sweeping in anyone filling the vacant post, not just one category of official.
- The Court considered the opening phrase "notwithstanding subsection (a)(1)," a kind of clause that in statutes signals which of two conflicting provisions wins out. It concluded this clause simply resolved a unique conflict between a mandatory rule and a prohibition, and did not silently exempt other categories of officials from the ban.
- The Court rejected an argument based on the interpretive principle that naming one item in a list implies the exclusion of unnamed similar items, reasoning that this inference only holds when context supports it, and here the notwithstanding clause did not suggest such an exclusion.
- The Court found that reading the ban narrowly would make a separate provision — one carving out an exception for a specific category of person — pointless, since that exception would already be automatic under a narrow reading; a broad reading avoids treating any part of the statute as unnecessary.
- Because the Court found the text clear, it treated the legislative history, past agency guidance, and years of contrary practice by the executive branch as unpersuasive and not strong enough to override the statute's plain wording.
- Applying this broad reading, the Court concluded that the acting general counsel became ineligible to keep performing his duties the moment the President nominated him for the permanent position, regardless of which provision had authorized his acting service.