The Supreme Court agreed Monday to review a case challenging the president’s power to temporarily appoint federal officials.
The National Labor Relations Board is appealing a lower court’s decision to toss an unfair labor practice complaint the board waged under the supervision of a President Obama appointee found to be in violation of the Federal Vacancies Reform Act.
The law prohibits a person from being both the acting officer and the permanent nominee unless that person served as the first assistant to the office in question for at least 90 of the last 365 days or was confirmed by the Senate to be the first assistant.
Obama nominated Lafe Solomon to be the board’s general counsel six months after appointing him acting general counsel. Solomon’s nomination was rejected by the Senate.
Before the appointment, Solomon had served as director of the NLRB’s Office of Representation Appeals.
In the case, known as NLRB v. SW General Inc., the justices will weigh whether the 90-day requirement only applies to first assistants who take hold of an office or if it also limits service by officials who assume acting responsibilities.
Obama ultimately withdrew his nomination of Solomon after resubmitting it in 2013 and nominated Richard Griffin instead. But in its petition for review, NLRB said there are six senior positions in the Department of Treasury, Department of Health and Human Services, Environmental Protection Agency, Department of Transportation and Office of Personnel Management that are filled by acting officers who have also been nominated to fill these offices on a permanent basis.
This report was updated at 2:14 p.m.