Friday, August 23, 2013

The Recess Appointment Mess Gets Messier

NLRBI'll admit it: I didn't see this one coming.  A federal district court judge in Washington has just denied an NLRB petition for a 10(j) injunction based on the argument that the NLRB Members' at the time recess appointments were invalid and that Acting General Counsel Lafe Solomon's appointment was improper.  

The judge explicitly followed New Process in holding the recess appointments (which he mistakenly moved back by a full year) invalid.  The NLRB then argued that the Regional Director doesn't need Board approval for a 10(j) injuction; instead, a delegation of authority from the GC will suffice.  But the judge rejected that by concluding that Solomon's appointment was also infirm.

The argument with regard to Solomon implicates a different issue that the NLRB member appointments, which are largely constitutional in nature, as the GC is covered by the Federal Vacancies Reform Act.  I have not looked closely at that act, but I've always been under the impression that Solomon's appointment fit easily under its requirements.  The judge disagreed, based primarily on the argument that an acting GC must have been a "first assistant" to the GC prior to his or her appointment and that Solomon (who was Director of the Representation Unit before his appointment) didn't satisfy that requirement.  

That conclusion still sounds fishy to me--I believe that Solomon and other similar section directors reported directly to the GC--but I'll concede that I don't know the FVRA enough to make an informed judgment (and the court also said it was "undisputed" that Solomon was never a first assistant).  Moreover, the FVRA make a specific exception for the NLRB GC (which is why I've always thought this was fine), stating that it's not covered by a provision that doesn't allow ratification of actions by officials who were improperly appointed. The judge characterized this as an exception to a "penalty provision" that doesn't allow Solomon to act when his appointment was improper.  I'm not sure that's really a "penalty" and the judge's argument seems circular, but again, I'm speaking partially out of ignorance here.

Any readers who are better informed are encouraged to help the rest of us out in the comments section.


Hat Tip:  Patrick Kavanagh & PS


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I was working on a “guest blog” post on this very issue when this went up (as I knew it would!). I have two immediate thoughts.

First, if the court’s reading of the vacancies act is correct, that only 3345 (a)(1) applies, then the appointment is likely invalid. As far as I know, Lafe was the Executive Director of the Office of Representation Appeals when he was appointed Acting General Counsel. That office is the on the Board side of the agency and reports to the Chairman of the Board – not the General Counsel. So, I think the court is right that Lafe was not a first assistant (or any assistant to the GC).

Second, it seems that there is a plausible reading of the statute that would permit the appointment. While Section (a)(1) applies 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. I think you could read office broadly enough but even if you could not, Solomon was certainly an employee of the agency (assuming the NLRB is properly classified as an “Executive Agency”) The court’s one-sentence rejection of those provisions is unconvincing.

Posted by: Joseph Mastrosimone | Aug 23, 2013 8:39:02 AM

I don't think the judge read the Vacancies Act, either.

Posted by: FJ | Aug 23, 2013 10:03:06 AM

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