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Opinion analysis: Court limits “acting” appointments to fill vacancies

Shortly after his inauguration, President Donald Trump named Washington lawyer Noel Francisco as the principal deputy solicitor general – the only deputy solicitor general who is a political appointee, rather than a career lawyer. Because Trump had not yet nominated (nor had the Senate confirmed) a solicitor general, Francisco soon began to serve as the acting solicitor general. Earlier this month, Trump announced that he was nominating Francisco to serve as the solicitor general on a permanent basis. Francisco then moved to another job in the Department of Justice; Jeffrey Wall – the new principal deputy solicitor general – now serves as the acting solicitor general. Yesterday’s decision in National Labor Relations Board v. SW General helps to explain why.

The case before the court centered on the interpretation of the Federal Vacancies Reform Act of 1998, which was a response to then-President Bill Clinton’s decision to make Bill Lann Lee the first assistant to the assistant attorney general in charge of the Department of Justice’s civil rights division and then name him the acting assistant attorney general after the Senate declined to confirm Lee in that job. Like the assistant attorney general for civil rights, many other federal government positions also require Senate confirmation. Under subsection 3345(a)(1) of the FVRA, if one of these positions becomes vacant, its duties are generally performed by the first assistant to the post, serving in an acting capacity. But the president can also decide to designate someone else to serve in the acting role – either someone who has been confirmed to another position in the executive branch, pursuant to subsection 3345(a)(2) of the act, or someone who is serving as a senior official in the same government agency, pursuant to subsection 3345(a)(3).

The catch is that another provision of the FVRA, subsection 3345(b)(1), indicates that, “notwithstanding” subsection 3345(a)(1), someone who is nominated to fill a vacant position requiring Senate confirmation “may not perform the office’s functions and duties in an acting capacity unless the person served as first assistant to the vacant office for at least 90 days in the year preceding the vacancy.” Does this apply only applies to first assistants who serve in an acting capacity under subsection 3345(a)(1), as the federal government argues, or does it also apply to all acting officials named pursuant to subsection 3345(a), as the U.S. Court of Appeals for the District of Columbia Circuit ruled? Yesterday the Supreme Court, by a vote of 6-2, rejected the government’s interpretation and agreed with the D.C. Circuit.

In a decision that was joined by Justices Anthony Kennedy, Clarence Thomas, Stephen Breyer, Samuel Alito and Elena Kagan, Chief Justice John Roberts explained that the court’s conclusion flows directly from the text. The FVRA makes clear that subsection 3345(b)(1) “applies to all acting officers” under section 3345, no matter how they were appointed. If Congress had wanted it to apply only to first assistants, Roberts noted, it “could easily have chosen clearer language.”

Roberts added that the text of the FVRA is sufficiently clear that the court does not need to look at the history of the act or how it has been implemented in practice. But even if it did, Roberts continued, the evidence “is not compelling.” In the court’s view, the text of the FVRA reflects a compromise: “The legislation as passed did expand the pool of individuals the President could appoint as acting officers.” But, Roberts stressed, “it also expanded the scope of the limitation on acting service in (b)(1), by dropping the language making (b)(1) applicable only to first assistants.” And Roberts declined the federal government’s suggestion that the court should give “significant weight” to three presidents’ “historical practice” of nominating people who were serving in an acting capacity pursuant to (a)(2) or (a)(3). Roberts observed that those 112 nominations “make up less than two percent of the thousands of nominations” since the FVRA was enacted in 1998. This practice, Roberts added, bears little resemblance to the “voluminous historical record” that influenced the court’s decision a few years ago in a challenge to the president’s recess appointment powers.

Justice Sonia Sotomayor dissented, in an opinion that was joined by Justice Ruth Bader Ginsburg. Sotomayor complained that the majority had interpreted subsection 3345(b)(1) too broadly. Because subsection (b)(1) refers specifically only to subsection (a)(1), she contended, it trumps only that subsection – not (a)(2) or (a)(3). Such an interpretation is consistent with the chain of events that led Congress to enact the FVRA in the first place – that is, Clinton’s decision to make Bill Lann Lee the acting assistant attorney general for civil rights after his nomination to serve in the role permanently had failed. And Sotomayor would give more weight to the executive branch’s consistent practice, without any objection from the Senate, of making nominations in the face of “would-be violations.”

Recommended Citation: Amy Howe, Opinion analysis: Court limits “acting” appointments to fill vacancies, SCOTUSblog (Mar. 22, 2017, 6:34 AM),