On November 7, the Supreme Court heard oral argument in National Labor Relations Board v. SW General, Inc., which deals with presidential appointment powers and centers on a dispute over provisions of the Federal Vacancies Reform Act of 1998 (FVRA). The case challenges a 2013 National Labor Relations Board (NLRB) determination of unfair labor practices at an Arizona ambulance company, SW General. SW General contends that under the FVRA, President Obama's appointment of an acting general counsel, Lafe Solomon, for an NLRB vacancy was illegal, and therefore the case against them should be dismissed.
The U.S. Court of Appeals for the District of Columbia Circuit agreed that the acting general counsel Solomon's tenure violated the FVRA and invalidated the decision. The federal government now seeks relief from the High Court, based on alternative statutory interpretation that the President's appointment was fully permissible under the law.
- John Elwood, Partner, Vinson & Elkins LLP