By SEAN HIGGINS • 8/11/15

The D.C. Circuit Court of Appeals ruled Friday that Lafe Solomon, the former acting general counsel for the National Labor Relations Board from 2011 through 2013, had been serving in violation of the law governing federal appointments. It was the latest example of a federal court throwing out President Obama's picks for the board, which is the main federal labor law enforcement agency.

Last year, the Supreme Court ruled in the case Noel Canning v. NLRB that three of Obama's 2012 recess appointments to board were unconstitutional. The decision voided an entire year's worth of agency decisions.

Friday's ruling is unlikely to be as far-reaching as the Supreme Court decision. A three-judge panel for the circuit court was careful to say the ruling was specific to the case in question, which involved a business that had directly challenged the legality of Solomon's appointment at the time he was serving, and would extend only those that had made the same challenge.

"[T]his case is not Son of Noel Canning and we do not expect it to retroactively undermine a host of NLRB decisions. ... We doubt that an employer that failed to timely raise (the same) objection — regardless whether enforcement proceedings are ongoing or concluded — will enjoy the same success," the judges wrote.

James Plunkett, director of labor policy for the Chamber of Commerce, agreed it was probably a limited ruling, adding that there was only one other case he could think of where anyone raised the question of whether Solomon was legally serving as general counsel. Hardly anyone involved in litigation with the board ever thought to do it.

"The employer and their attorneys (in the case decided Friday) were quite shrewd in raising this objection way back when and that's why they were able to prevail," Plunkett said, adding, "But you cannot go back and breathe life into an already closed case."

Pat Semmens, spokesman for the National Right To Work Committee, a nonprofit conservative group involved in labor litigation, said their lawyers were looking through old cases to see if the Friday ruling applied, but were not expecting much.

Both said the ruling showed how "fast and loose" Obama played with the rules for federal appointments when it came to the NLRB.

"The bigger takeaway is just how aggressively the Obama Administration moved to influence labor policy to the benefit of Big Labor, even when they lacked the legal authority to act," Semmens said.

The role of NLRB general counsel is more important than the title implies. The individual functions more like a chief executive officer and largely runs the agency, including deciding when to file labor practice complaints against businesses.

Solomon, a long-time board lawyer, was appointed acting general counsel by Obama in June 2010 and officially nominated to the position, which requires Senate approval, the following January. However, the Senate, then under Democratic control, never held a vote on his nomination. Solomon continued to serve through November 2013, when the current general counsel, Richard Griffin, was confirmed by the Senate.

That same year, SW General, Inc., an Arizona-based ambulance company, challenged a NLRB complaint against it, alleging that Solomon was serving in violation of 1998 law called the Federal Vacancies Reform Act. The law says that once the president nominates someone for a position that requires Senate confirmation, that nominee cannot serve until they are confirmed. It includes an exception if the nominee had previously been "first assistant" to the last person to hold the office. On Friday, the federal court sided with the company and against the board.

"Because Solomon was never a first assistant and the President nominated him to be General Counsel on January 5, 2011, the FVRA prohibited him from serving as Acting General Counsel from that date forward," the court found.

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http://www.washingtonexaminer.com/courts...article/2569978