Hooks v. Kitsap Tenant Support Servs., No. 13-35912 (9th Cir. 2016)
Annotate this CaseIn this appeal, the parties contest the proper interpretation of the Federal Vacancies Reform Act (FVRA), 5 U.S.C. 3345 et seq., as it relates to the appointment of the former Acting General Counsel of the NLRB. KTSS challenges the authority of Lafe E. Solomon, the former Acting General Counsel of the NLRB, to authorize a petition for injunctive relief against KTSS after the President nominated him to the permanent position. As a preliminary matter, the court rejected KTSS’s argument that because Solomon’s appointment did not comply with section 3(d) of the National Labor Relations Act (NLRA), 29 U.S.C. 153(d), the appointment was necessarily invalid. The court concluded that, to be valid, a petition under section 10(j) of the NLRA, 29 U.S.C. 160(j), must be authorized by the Board through one of two avenues: the first is for a quorum of three Board members to directly authorize the specific 10(j) petition, and the second is for the General Counsel to authorize the petition pursuant to a previous delegation of the Board’s 10(j) authority to the General Counsel. The Board concedes that the first avenue was not satisfied in this case. The court held that the second avenue was not satisfied either because Solomon was not properly serving as Acting General Counsel under the FVRA at the time that the petition was filed. In light of this holding, the court need not reach KTSS’s alternative argument that the Board never validly delegated its 10(j) authority to Solomon. Finally, the Board explicitly waived any arguments based on the FVRA’s exemption clause and it does not otherwise contest the remedy sought by KTSS. Accordingly, the court affirmed the district court's dismissal of the petition.
Court Description: Appointments The panel affirmed the district court’s dismissal of a petition, filed pursuant to section 10(j) of the National Labor Relations Act, providing interim injunctive relief while the National Labor Relations Board processed an unfair labor practice complaint against Kitsap Tenant Support Services, Inc., because Lafe E. Solomon could not authorize the 10(j) petition as Acting General Counsel of the Board because he had not been properly appointed under the Federal Vacancies Reform Act (“FVRA”). The FVRA authorizes the President to temporarily fill vacancies in offices in the Executive Branch that ordinarily require Senate confirmation. The FVRA also provides conditions for when an appointee may simultaneously serve as an acting officer and be the President’s nominee for Senate confirmation as to the permanent position.
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