Friday, August 23, 2013

No Room at the Board?: Labor Law Meets the Vacancies Act

Lafe_solomon-smLike Jeffrey, I too think there is something "fishy" about the Western District of Washington’s conclusion that Acting General Counsel Lafe Solomon’s appointment is contrary to the Federal Vacancies Reform Act (FVRA).  The court’s four-page order left me with three immediate thoughts:

First, the court is probably correct that Solomon was not an assistant to out-going General Counsel Meisburg.  As far as I know, Solomon was the Executive Director of the Office of Representation Appeals when he was appointed Acting General Counsel.  Representation Appeals is on the Board side of the agency and reports to the Chairman of the Board – not the General Counsel.  So, if the FVRA applies only to first assistants then the appointment was probably unauthorized.

However, it seems that there is a strong argument that the court simply misread the FVRA.  While Section (a)(1) does apply only to first assistants, that section provides for automatic succession without appointment or direction from the President.  However, Sections (a)(2) and (a)(3) provide for a larger universe of eligible appointees in cases where the President directs a person to take over in an acting role.  Section (a)(2) applies to any person “who serves in an office for which appointment is required and (a)(3) applies to any “officer or employee of such Executive agency.”  Neither Section (a)(2) nor Section (a)(3) is limited to first assistants.  Not being an expert on this topic, I am not sure those apply but is seems they could.  The court could have read “office” broadly to include both GC and Board side “persons.”  Or, the court could have certainly found Solomon to be an “employee of such Executive agency.”  Whatever the correct result, the court’s one-sentence rejection of those provisions is just unconvincing.

Finally, if the court is correct, this ruling presents a larger issue than the recess appointments issue on the Board side.  So much of the Board’s day-to-day operations run through the General Counsel, that paralyzing that half of the agency effectively paralyzes the whole.  And, while former-Member and GC nominee Griffin is certainly qualified to be General Counsel, his being named in a racketeering suit and his previous questionable recess appointment makes it unlikely that he will be confirmed by the Senate anytime soon.

- Joe Mastrosimone (Washburn)

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With all respect, you should show more respect to Judge Settle, a thoughtful judge. The problem with Solomon’s appointment is not 3345(a), but 3345(b). Subsection (b) applies to the entire section, and there is no dispute that Solomon does not satisfy (b)(1)(A)(i) and (ii). The judge was right to ignore 3348, which does not deal with the question whether Solomon was validly appointed in the first place. There is nothing ‘fishy’ about the judge’s conclusion.

Posted by: Tim O'Connell | Aug 24, 2013 11:28:10 AM

Actually, (b)(1) expressly limits (a)(1), not (a)(3). So Judge Settle got it wrong.

Posted by: person | Aug 26, 2013 1:52:37 PM

Tim - Absolutely no respect here. The forever disrespectful Michael C. Duff.

Posted by: Michael Duff | Sep 1, 2013 7:23:42 AM

The thoughtful judge didn't even get Member Block's first name right.

Posted by: Jason W. | Sep 2, 2013 1:00:20 AM

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