Supreme Court Review 2017/2018 TERM

Issue:  Federal Vacancies Reform Act

National Labor Relations Board v. SW General, Inc.



Many important government posts must be filled by persons who are nominated by the President and confirmed by the Senate. The Federal Vacancies Reform Act of 1998 (FVRA), 5 U.S.C. 3345 et seq., provides that when such an office is vacant, its functions and duties may be performed temporarily in an acting capacity by either the first assistant to the vacant post, under Section 3345(a)(1); a Senateconfirmed official occupying another office in the Executive Branch who is designated by the President under Section 3345(a)(2); or a senior official in the same agency designated by the President under Section 3345(a)(3).

Section 3345(b) of the FVRA provides as a general rule that “[n]othwithstanding subsection (a)(1),” a person who is nominated to fill a vacant office that is subject to the FVRA may not perform the office’s functions and duties in an acting capacity unless the person served as first assistant to the vacant office for at least 90 days in the year preceding the vacancy. 5 U.S.C. 3345(b).

The question presented is whether the precondition in 5 U.S.C. 3345(b)(1) on service in an acting capacity by a person nominated by the President to fill the office on a permanent basis applies only to first assistants who take office under Subsection (a)(1) of 5 U.S.C. 3345, or whether it also limits acting service by officials who assume acting responsibilities under Subsections (a)(2) and (a)(3).


Decided March 21, 2017 HOLDING

Subsection (b)(1) of the FVRA prevents a person who has been nominated to fill a vacant PAS office from performing the duties of that office in an acting capacity. The prohibition applies to anyone performing acting service under the FVRA. It is not limited to first assistants performing acting service under subsection (a)(1). Applying the FVRA to this case is straightforward. Subsection (b)(1) prohibited Solomon from continuing his service as acting general counsel once the President nominated him to fill the position permanently. The President could have appointed another person to serve as acting officer in Solomon’s place, but did not do so.

Agree image Justice Kagan
Agree Kagan
Agree image Justice Alito
Agree Alito
Agree w/ Soto image Justice Ginsburg
Agree w/ Soto Ginsburg
Agree image Justice Kennedy
Agree Kennedy
Author image Chief Justice Roberts
Author Roberts
Agree Concur image Justice Thomas
Agree Concur Thomas
Agree image Justice Breyer
Agree Breyer
Dissent Author image Justice Sotomayor
Dissent Author Sotomayor
Recused image Justice Gorsuch
Recused Gorsuch

ROBERTS, C. J., delivered the opinion of the Court, in which KENNEDY, THOMAS, BREYER, ALITO, and KAGAN, JJ., joined. THOMAS, J., filed a concurring opinion. SOTOMAYOR, J., filed a dissenting opinion, in which GINSBURG, J., joined.

Text of Opinion
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Granted June 20, 2016

Certiorari Stage Documents
      Petition for Certiorari (pdf download)
Brief in Opposition (pdf download)
Petitioner's Reply (pdf download)


United States Court of Appeals for the District of Columbia Circuit
Decided August 7, 2015
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