Federal Employment Law Attorney Heather White, Partner at the Federal Practice Group, recently contributed her insight on a recent decision from the Supreme Court of the United States in which court Justices ruled that individuals nominated by a President cannot serve as acting leaders.
The decision, which came three years in the making, stems from a 2013 lawsuit contesting a decision from the National Labor Relations Board on grounds that the acting general counsel during that time became ineligible to serve in that capacity when the President nominated them for permanent leadership. On March 21, the Supreme Court invalidated the NLRB decision under the Federal Vacancies Reform Act, which states that an individual cannot serve as an acting officer if they have been formally nominated for appointment to the Senate by the President.
SOCUTS’ ruling now clears up confusion over whether Beth Cobert was in violation of Federal Law by acting as Director of the Office of Personnel Management following a formal nomination by President Barack Obama.
Commenting on the decision, Ms. White tells Federal News Radio that it remains unclear whether the decision will be applied retroactively, or whether it will only apply moving forward. While the ruling may set precedent to allow for challenges in similar situations in the future, it does not automatically invalidate every decision made by the NLRB general counsel, nor the actions made by Cobert. She further cites a footnote from the SCOTUS opinion that although decisions following a nomination are in violation of the Federal Vacancies Reform Act, they are not considered void from the outset, but rather “voidable.”
Drawing from her extensive experience in federal sector employment litigation, Ms. White posits that the ruling could have implications to enable employers in challenging unfair labor decisions, and that it will likely lead to more litigation in the future.