NLRB GC was serving illegally, says 9th Circuit

Was NLRB Acting General Counsel Lafe Solomon serving in his position illegally? The 9th Circuit thought so in Hooks v. Kitsap Tenant Support Services (9th Cir 03/07/2016). He was simultaneously serving as an acting officer and the President’s nominee for Senate confirmation as to the permanent position. That's not allowed by the Federal Vacancies Reform Act (FVRA). The issue came up when a Regional Director for the NLRB filed a Section 10(j) petition in federal court in Seattle seeking injunctive relief relating to some pending NLRB charges.

The district court dismissed the petition because Lafe E. Solomon could not authorize the 10(j) petition as Acting General Counsel of the Board because he had not been properly appointed under the Federal Vacancies Reform Act (FVRA).

The 9th Circuit – in line with SW General, Inc. v. NLRB, 796 F.3d 67 (DC Cir 2015) – held that Solomon was not properly appointed. The reasoning is somewhat long and complex, but the bottom line is that the FVRA does not allow an acting GC to continue in that office once the President has sent his nomination to the Senate.