Under the Federal Vacancies Reform Act (FVRA), an individual who has been nominated to fill a position requiring Presidential appointment and Senate confirmation may not perform the duties of that position in an acting capacity. Solomon had been appointed by President Obama as Acting General Counsel, and was subsequently nominated to fill the role permanently. His nomination, however, languished before the Senate for almost two years until it was finally withdrawn, and Solomon continued in his Acting role during this time.
In the meantime, the NLRB found that an employer had committed unfair labor practices (ULPs), and the employer appealed the NLRB’s ruling to the U.S. Court of Appeals for the D.C. Circuit. Among other things, the employer argued that, because Solomon was improperly serving as Acting General Counsel, the ULP complaint issued by one of his Regional Directors on his behalf was invalid. The D.C. Circuit agreed, and the NLRB appealed to the Supreme Court.