Supreme Court Limits Who Can Be Appointed as an Acting Agency Leader

This story has been updated with comment from OPM.

Senior leaders at federal agencies cannot serve in acting capacities at positions to which they have been nominated by the president to serve permanently, the Supreme Court ruled on Tuesday.

The decision is seen as a victory for those who want to rein in the executive powers of the president and will, in theory, give the Senate more authority over who serves in federal agencies’ top ranks.

The court’s decision in National Labor Relations Board v. SW General Inc. resolves a challenge in which a private company alleged the NLRB rulings against it were invalid because the agency’s acting general counsel was serving illegitimately. President Obama had nominated Lafe Solomon to serve as NLRB’s general counsel, and named him acting general counsel as he awaited Senate confirmation.

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Under the 1998 Federal Vacancies Reform Act, an official named as an acting agency head must be handled in one of three ways: the “first assistant” to the office automatically becomes the acting officer; the president appoints a Senate-confirmed officer from another agency; or the president appoints a senior employee from the same agency. Officials who served as the “first assistant” to the position for 90 days in the year before it became vacant can be both acting in the position and the nominee to fill it permanently. 

The court ruled by a 6-2 margin in favor of SW General, affirming an earlier decision by the Court of Appeals. Applying that law to this case was “straightforward,” Chief Justice John Roberts wrote in the majority opinion.

“The president could have appointed another person to serve as the acting officer in Solomon’s place,” Roberts said. “And he had a wide array of individuals to choose from: any one of the approximately 250 senior NLRB employees or the hundreds of individuals in [presidentially appointed, Senate-confirmed] positions throughout the government. The president, however, did not do so, and Solomon’s continued service violated the FVRA.”

The Obama administration had argued the president should be able to fill vacancies with the most qualified individuals, regardless of whether they had been nominated on a permanent basis. It also said a ruling in favor of SW General would call into question the actions of interim leaders at agencies throughout government.

At the Office of Personnel Management, Beth Cobert served as acting director while awaiting confirmation to that very position. She was never confirmed, and the agency’s inspector general said in February of 2016 she was serving illegitimately and her decisions were null and subject to court challenge.

"OPM is reviewing the decision and will confer with the Department of Justice concerning what, if anything, OPM needs to do in response to this decision," said Lindsay Haake, an agency spokeswoman.

Congress passed the FVRA after accusing presidents of circumventing their "advice and consent" role; at that time, one in five presidentially appointed, Senate-confirmed positions were filled by temporary designees.

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