Hooks Ex Rel. National Labor Relations Board v. Kitsap Tenant Support Services, Inc. ( 2016 )


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  •                  FOR PUBLICATION
    UNITED STATES COURT OF APPEALS
    FOR THE NINTH CIRCUIT
    RONALD K. HOOKS, Regional                  No. 13-35912
    Director of the Nineteenth Region
    of the National Labor Relations               D.C. No.
    Board, for and on behalf of the            3:13-cv-05470-
    National Labor Relations Board,                 BHS
    Petitioner-Appellant,
    v.                           OPINION
    KITSAP TENANT SUPPORT
    SERVICES, INC.,
    Respondent-Appellee.
    Appeal from the United States District Court
    for the Western District of Washington
    Benjamin H. Settle, District Judge, Presiding
    Argued and Submitted
    July 7, 2015—Seattle, Washington
    Filed March 7, 2016
    2        HOOKS V. KITSAP TENANT SUPPORT SERVS.
    Before: Jacqueline H. Nguyen and Michelle T. Friedland,
    Circuit Judges and Cormac J. Carney, * District Judge.
    Opinion by Judge Friedland
    SUMMARY **
    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.
    *
    The Honorable Cormac J. Carney, District Judge for the U.S. District
    Court for the Central District of California, sitting by designation.
    **
    This summary constitutes no part of the opinion of the court. It has
    been prepared by court staff for the convenience of the reader.
    HOOKS V. KITSAP TENANT SUPPORT SERVS.                3
    As a preliminary matter, the panel held that neither the
    FVRA nor the National Labor Relations Act was the
    exclusive means of appointing an Acting General Counsel of
    the Board, and thus the President was permitted to elect
    between the two statutory alternatives to designate an Acting
    General Counsel. The panel rejected Kitsap Tenant Support
    Services, Inc.’s argument that because Solomon’s
    appointment did not comply with section 3(d) of the
    National Labor Relations Act, the appointment was invalid.
    The panel held that because Solomon served as Acting
    General Counsel while also being the nominee to the
    permanent position, he held his post in violation of the
    FVRA. The panel agreed with the D.C. Circuit’s holding in
    SW General, Inc. v. NLRB, 
    796 F.3d 67
    (D.C. Cir. 2015), as
    to 5 U.S.C. § 3345(b)(1)’s reach, and likewise concluded
    that Solomon lacked the authority to serve after he was
    nominated.
    To be valid, a 10(j) petition must be authorized by the
    Board either through a quorum of three Board members
    directly authorizing the petition, or by the Board’s General
    Counsel authorizing the petition pursuant to a previous
    delegation of the Board’s 10(j) authority to the General
    Counsel. The Board conceded that the first avenue was not
    satisfied. The panel 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
    10(j) petition was filed.
    The panel held that the Board explicitly waived any
    arguments based on the FVRA’s exemption clause, and it
    did not otherwise contest the remedy sought by Kitsap
    Tenant Support Services, Inc., and therefore the district court
    properly dismissed the 10(j) petition.
    4       HOOKS V. KITSAP TENANT SUPPORT SERVS.
    COUNSEL
    Richard F. Griffin, Jr., Elinor L. Merberg, Jennifer Abruzzo,
    Laura T. Vazquez, Barry J. Kearney, Ruth E. Burdick
    (argued), and Jayme L. Sophir, National Labor Relations
    Board, Washington, D.C., for Petitioner-Appellant.
    Gary Lofland (argued), Kellen Holgate, and Rachel
    Saimons, Halverson Northwest Law Group P.C., Yakima,
    Washington, for Respondent-Appellee.
    OPINION
    FRIEDLAND, Circuit Judge:
    The Appointments Clause of the Constitution authorizes
    the President to appoint officers of the United States “by and
    with the Advice and Consent of the Senate.” U.S. Const. art.
    II, § 2, cl. 2. This appeal requires us to consider the
    President’s ability to temporarily fill vacancies in offices of
    the Executive branch that ordinarily require Senate
    confirmation. In particular, 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
    National Labor Relations Board (“NLRB” or “Board”).
    The FVRA authorizes the President to temporarily
    appoint acting officers to fill certain vacancies without first
    obtaining Senate confirmation. Specifically, it sets forth the
    eligibility requirements for the President’s appointees to
    certain acting roles and how long such appointees may serve.
    It also provides conditions for when an appointee may
    simultaneously serve as an acting officer and be the
    HOOKS V. KITSAP TENANT SUPPORT SERVS.              5
    President’s nominee for Senate confirmation to the
    permanent position.
    Respondent Kitsap Tenant Support Services (“KTSS”)
    here 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. We conclude that
    because Solomon served in that acting capacity while also
    being the nominee to the permanent position, he held his post
    in violation of the FVRA. Accordingly, we affirm the
    district court’s dismissal of the Board’s petition.
    I
    The Board consists of five members appointed by the
    President, by and with the advice and consent of the Senate.
    29 U.S.C. § 153(a). The National Labor Relations Act
    (“NLRA”) also provides that the Board shall have a General
    Counsel. 
    Id. § 153(d).
    This President-appointed, Senate-
    confirmed officer is tasked with the Board’s prosecutorial
    functions. 
    Id. These functions
    include authorizing the
    investigation of unfair labor practice charges and issuing
    complaints on behalf of the Board as a result of such
    investigations. 
    Id. On June
    20, 2010, former NLRB General Counsel
    Ronald Meisburg resigned, and President Obama designated
    Solomon as Acting General Counsel pursuant to § 3345(a)
    of the FVRA. President Obama subsequently nominated
    Solomon to the position of General Counsel on January 5,
    2011, 157 Cong. Rec. S69 (daily ed. Jan. 5, 2011), but the
    Senate returned the nomination, 159 Cong. Rec. S17 (daily
    ed. Jan. 3, 2013). The President later resubmitted Solomon’s
    nomination, 159 Cong. Rec. S3884 (daily ed. May 23, 2013),
    but then withdrew it, 159 Cong. Rec. S6263 (daily ed. Aug.
    6         HOOKS V. KITSAP TENANT SUPPORT SERVS.
    1, 2013), and nominated Richard Griffin, who was
    confirmed on October 29, 2013, 159 Cong. Rec. S7635
    (daily ed. Oct. 29, 2013). Solomon served in the role of
    Acting General Counsel from June 21, 2010 until November
    4, 2013, when Griffin took office. See Press Release,
    National Labor Relations Board, Richard F. Griffin, Jr.
    Sworn In as NLRB General Counsel (Nov. 4, 2013),
    available at https://www.nlrb.gov/news-outreach/news-
    story/richard-f-griffin-jr-sworn-nlrb-general-counsel.
    Under Solomon’s direction, the NLRB investigated
    various charges filed by a labor union that KTSS had
    engaged in unfair labor practices. 1         Based on that
    investigation, Solomon issued a series of administrative
    complaints against KTSS, which led to a hearing against
    KTSS before an administrative law judge. While the
    administrative proceedings were pending, Ronald K. Hooks,
    a Regional Director of the Board, filed a petition for
    injunctive relief, thereby initiating the present case. The
    petition was filed on June 13, 2013, in the United States
    District Court for the Western District of Washington,
    pursuant to section 10(j), 29 U.S.C. § 160(j), of the NLRA.
    Section 10(j) provides: “The Board [has] power, upon
    1
    A union, employer, or employee may file charges alleging unfair
    labor practices with an NLRB regional office. NLRB v. United Food &
    Commercial Workers Union, Local 23, AFL-CIO, 
    484 U.S. 112
    , 118
    (1987). Once a charge is received, the case is assigned for investigation.
    29 C.F.R. § 101.4. “After investigation, the case may be disposed of
    through informal methods such as withdrawal, dismissal, or settlement.”
    
    Id. If the
    charge “appears to have merit” and no settlement is reached,
    the Regional Director “institutes formal action by issuance of a
    complaint and notice of hearing,” to take place before an administrative
    law judge. 29 C.F.R. §§ 101.8, 101.10. The power to decide whether or
    not to issue a complaint is one delegated by the General Counsel to the
    Board’s Regional Directors. NLRB v. Sears, Roebuck & Co., 
    421 U.S. 132
    , 139 (1975).
    HOOKS V. KITSAP TENANT SUPPORT SERVS.                            7
    issuance of a complaint . . . to petition any United States
    district court . . . for appropriate temporary relief or
    restraining order.” 29 U.S.C. § 160(j). The purpose of a
    10(j) injunction is to afford interim relief and to “protect the
    integrity of the collective bargaining process” while the
    Board processes an unfair labor practice complaint. Small v.
    Avanti Health Sys., LLC, 
    661 F.3d 1180
    , 1187 (9th Cir.
    2011) (quoting McDermott v. Ampersand Pub., LLC,
    
    593 F.3d 950
    , 957 (9th Cir. 2010)).
    KTSS moved to dismiss, arguing among other things that
    Solomon could not authorize the petition as Acting General
    Counsel because he had not been properly appointed under
    the FVRA. The district court agreed with KTSS and
    dismissed the action.
    We review de novo a district court’s dismissal of an
    action under either Rule 12(b)(1) or Rule 12(b)(6), 2 Vaughn
    v. Bay Envtl. Mgmt., Inc., 
    567 F.3d 1021
    , 1024 (9th Cir.
    2009), and we may affirm on any ground supported by the
    record, ASARCO, LLC v. Union Pac. R.R. Co., 
    765 F.3d 999
    ,
    1004 (9th Cir. 2014); Bd. of Trs. of Constr. Laborers’
    Pension Tr. for S. Cal. v. M.M. Sundt Constr. Co., 
    37 F.3d 2
        KTSS’s motion to dismiss was brought pursuant to Rule 12(b)(1) for
    lack of subject matter jurisdiction or, in the alternative, Rule 12(b)(6) for
    failure to state a claim. The district court granted the motion without
    clarifying which Rule applied. We need not resolve which rule applies
    either. Whether we view the 10(j) petition’s valid authorization as a
    jurisdictional requirement or as an element of an injunctive relief claim
    that must be fulfilled for success on the merits, resolution of this appeal
    depends on whether Solomon served in violation of the FVRA. We hold
    that he did, that this means he could not validly authorize the petition,
    and that the petition was therefore properly dismissed. Because we
    always have jurisdiction to consider our own jurisdiction, we can reach
    this issue whether it is jurisdictional or not. United States v. El Dorado
    Cty., 
    704 F.3d 1261
    , 1262 (9th Cir. 2013).
    8         HOOKS V. KITSAP TENANT SUPPORT SERVS.
    1419, 1420 (9th Cir. 1994) (per curiam). We also review de
    novo questions of statutory interpretation. Waste Action
    Project v. Dawn Mining Corp., 
    137 F.3d 1426
    , 1428 (9th
    Cir. 1998). We now affirm the dismissal of the 10(j)
    petition.
    II
    To be valid, a 10(j) petition 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. 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. See
    29 U.S.C. §§ 153(d), 160(j). Under this second avenue, the
    Board must have had a proper quorum when it delegated
    authority to the General Counsel, Frankl v. HTH Corp.,
    
    650 F.3d 1334
    , 1354 (9th Cir. 2011), and the General
    Counsel must be validly serving. KTSS argues that neither
    avenue was satisfied here.
    The Board concedes that the first avenue was not
    satisfied. 3 We hold that the second avenue was not satisfied
    3
    The Board initially claimed that it “separately and independently
    authorized” the 10(j) petition in this case. The Board later conceded,
    however, that under NLRB v. Noel Canning, 
    134 S. Ct. 2550
    (2014), it
    was not properly constituted when it purportedly authorized the petition.
    In Noel Canning, the Supreme Court interpreted the Recess
    Appointments Clause, which “empowers the President to fill any
    existing vacancy during any recess—intra-session or inter-session—of
    sufficient 
    length.” 134 S. Ct. at 2577
    . In addressing what constitutes
    “sufficient length,” the Court held that a recess of three days is too short
    to trigger the Clause. 
    Id. at 2566–67.
    Because two of the three Board
    members serving when the present petition was purportedly authorized
    were held in Noel Canning to have invalid appointments, the three-
    member quorum needed to validly authorize the petition was absent. See
    HOOKS V. KITSAP TENANT SUPPORT SERVS.                         9
    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, we need not reach KTSS’s
    alternative argument that the Board never validly delegated
    its 10(j) authority to Solomon. 4
    A
    As a preliminary matter, KTSS asserts that the NLRA
    provides the exclusive means for the President to appoint an
    Acting General Counsel. It is undisputed that Solomon’s
    appointment did not satisfy the NLRA’s conditions, and
    KTSS argues that this is sufficient to show that his
    appointment was invalid, without any need to consider the
    FVRA. This argument is belied by the text of the respective
    statutes.
    The NLRA specifically provides for the temporary
    designation of an Acting General Counsel in the event of a
    vacancy. Section 3(d) of the NLRA states that the President
    may temporarily fill a vacancy in the office of the General
    Counsel and limits the term of acting service to forty days,
    
    id. at 2557;
    Board Members Since 1935, National Labor Relations
    Board, https://www.nlrb.gov/who-we-are/board/board-members-1935.
    4
    KTSS also contends that Ronald K. Hooks was not validly appointed
    as a Regional Director of the Board, and that he consequently lacked the
    authority to issue the underlying administrative complaint pursuant to
    which the 10(j) petition was filed. See 29 U.S.C. § 160(j). Because the
    only decision we are reviewing is the district court’s decision to dismiss
    the 10(j) petition, and because we affirm its dismissal on the ground that
    the petition itself lacked valid authorization, we need not reach KTSS’s
    argument about the validity of the underlying administrative complaint.
    10         HOOKS V. KITSAP TENANT SUPPORT SERVS.
    with the possibility of a nomination-based extension.5
    29 U.S.C. § 153(d). The FVRA, in turn, states:
    (a) Sections 3345 and 3346 [of the FVRA]
    are the exclusive means for temporarily
    authorizing an acting official to perform the
    functions and duties of any office of an
    Executive agency . . . for which appointment
    is required to be made by the President, by
    and with the advice and consent of the
    Senate, unless—
    (1) a statutory provision expressly—
    (A) authorizes the President . . . to
    designate an officer or employee to
    perform the functions and duties of a
    specified office temporarily in an
    acting capacity[.]
    5 U.S.C. § 3347(a) (emphasis added).
    5
    Section 3(d) reads in relevant part:
    In case of a vacancy in the office of the General
    Counsel[,] the President is authorized to designate the
    officer or employee who shall act as General Counsel
    during such vacancy, but no person or persons so
    designated shall so act (1) for more than forty days
    when the Congress is in session unless a nomination
    to fill such vacancy shall have been submitted to the
    Senate, or (2) after the adjournment sine die of the
    session of the Senate in which such nomination was
    submitted.
    29 U.S.C. § 153(d).
    HOOKS V. KITSAP TENANT SUPPORT SERVS.                 11
    Under this provision of the FVRA, §§ 3345 and 3346
    form the exclusive means for filling a vacancy in an
    Executive agency office unless another statute expressly
    provides a means for filling such a vacancy. 6 Because
    section 3(d) of the NLRA does so, neither the FVRA nor the
    NLRA is the exclusive means of appointing an Acting
    General Counsel of the NLRB. Thus, the President is
    permitted to elect between these two statutory alternatives to
    designate an Acting General Counsel.
    The Senate Report on the FVRA confirms this
    interpretation. The Senate Report explains that the FVRA
    retains the vacancy-filling mechanisms in forty different
    statutes, including NLRA section 3(d), and states that “even
    with respect to the specific positions in which temporary
    officers may serve under the specific statutes this bill retains,
    the [FVRA] would continue to provide an alternative
    procedure for temporarily occupying the office.” S. Rep.
    105-250, 
    1998 WL 404532
    , at *17 (1998) (emphasis added).
    We therefore reject KTSS’s argument that because
    Solomon’s appointment did not comply with section 3(d) of
    the NLRA, the appointment was necessarily invalid.
    B
    We turn now to whether Solomon validly held the Acting
    General Counsel position under the FVRA at the time the
    10(j) petition against KTSS was authorized. The plain
    language of the FVRA leads us to conclude that he did not.
    6
    Certain positions may not be filled through the FVRA, but those
    exceptions are not applicable here. See 5 U.S.C. § 3349c.
    12     HOOKS V. KITSAP TENANT SUPPORT SERVS.
    Section 3345(a) of the FVRA delineates three discrete
    categories of individuals who may fill a vacant Executive
    agency office for which a permanent appointment would
    require Senate confirmation:
    (a) If an officer of an Executive agency
    (including the Executive Office of the
    President, and other than the Government
    Accountability Office) whose appointment to
    office is required to be made by the President,
    by and with the advice and consent of the
    Senate, dies, resigns, or is otherwise unable
    to perform the functions and duties of the
    office—
    (1) the first assistant to the office of such
    officer shall perform the functions and
    duties of the office temporarily in an
    acting capacity subject to the time
    limitations of section 3346;
    (2) notwithstanding paragraph (1), the
    President (and only the President) may
    direct a person who serves in an office for
    which appointment is required to be made
    by the President, by and with the advice
    and consent of the Senate, to perform the
    functions and duties of the vacant office
    temporarily in an acting capacity subject
    to the time limitations of section 3346; or
    (3) notwithstanding paragraph (1), the
    President (and only the President) may
    direct an officer or employee of such
    Executive agency to perform the
    HOOKS V. KITSAP TENANT SUPPORT SERVS.              13
    functions and duties of the vacant office
    temporarily in an acting capacity, subject
    to the time limitations of section 3346,
    if—
    (A) during the 365-day period
    preceding the date of death,
    resignation, or beginning of inability
    to serve of the applicable officer, the
    officer or employee served in a
    position in such agency for not less
    than 90 days; and
    (B) the rate of pay for the position
    described under subparagraph (A) is
    equal to or greater than the minimum
    rate of pay payable for a position at
    GS-15 of the General Schedule.
    5 U.S.C. § 3345(a).
    Only the first category of acting officer fills the role
    automatically. As described in (a)(1), “the first assistant to
    the office” automatically fills the vacancy as an acting
    officer unless someone else is appointed.            See 
    id. § 3345(a)(1)
    (“[T]he first assistant to the office of such
    [absent] officer shall perform the functions and duties of the
    office.” (emphasis added)).
    Signaled by the phrase “notwithstanding paragraph (1),”
    the statute goes on to provide two ways the President may
    override the automatic operation of (a)(1). First, (a)(2)
    permits the President to designate an acting officer from the
    second category of eligible candidates—prior Senate-
    confirmed officers. Alternatively, under (a)(3), the President
    14       HOOKS V. KITSAP TENANT SUPPORT SERVS.
    may designate a within-agency officer or employee,
    provided that the individual served in the Executive agency
    for not less than ninety days in the year preceding the date of
    the vacancy in a position with a rate of pay equal to or greater
    than the minimum GS-15 rate.
    Were we to stop here, there would be no concern about
    Solomon’s appointment. As a ten-year veteran who served
    as the Board’s Director of the Office of Representation
    Appeals at a pay level above GS-15, Solomon seems to
    satisfy the criteria under (a)(3). 7 But there is another part of
    § 3345 we must consider—specifically, § 3345(b)(1). It
    reads:
    (b)(1) Notwithstanding subsection (a)(1), a
    person may not serve as an acting officer for
    an office under this section, if—
    (A) during the 365-day period preceding
    the date of the [vacancy], such person—
    (i) did not serve in the position of first
    assistant to the office of such officer;
    or
    (ii) served in the position of first
    assistant to the office of such officer
    for less than 90 days; and
    7
    For the first time on appeal, KTSS objects that the Board has not
    presented any evidence to support Solomon’s career history and rate of
    pay. We deem this objection waived because KTSS failed to raise it in
    the district court. See Hormel v. Helvering, 
    312 U.S. 552
    , 556 (1941).
    HOOKS V. KITSAP TENANT SUPPORT SERVS.                          15
    (B) the President submits a nomination of
    such person to the Senate for appointment
    to such office.
    5 U.S.C. § 3345(b)(1). Subsection (b)(1) thus precludes
    someone from continuing to serve as an acting officer after
    being nominated to the permanent position, unless he or she
    had been the first assistant for ninety days of the prior year.
    The question is to whom this restriction applies.
    The Board argues that (b)(1) is a narrow limitation that
    only applies to acting officers designated under (a)(1). If
    (b)(1) only applies to (a)(1), as the Board argues, this
    provision had no effect on Solomon, who was an (a)(3)-
    designated acting officer. KTSS, on the other hand, argues
    that (b)(1) applies broadly to the whole of § 3345(a). Under
    KTSS’s interpretation, Solomon, who was an (a)(3) acting
    officer and who did not meet (b)(1)’s criteria, could not serve
    as Acting General Counsel once President Obama submitted
    his nomination to the Senate on January 5, 2011. 8
    1
    The starting point—and, in this case, the ending point—
    in discerning Congress’s intent in § 3345(b)(1) is the
    statutory text. BedRoc Ltd., LLC v. United States, 
    541 U.S. 8
        This interpretation differs from that which KTSS advocated in the
    district court. There, KTSS argued that (b)(1) required all eligible
    candidates to have previously served as a first assistant for at least ninety
    days in the year preceding the vacancy—an argument KTSS has since
    abandoned. Even though not raised below, we may consider KTSS’s
    “new legal arguments . . . [because they] relat[e] to claims previously
    raised in the litigation,” namely, the proper interpretation of (b)(1).
    Thompson v. Runnels, 
    705 F.3d 1089
    , 1098 (9th Cir. 2013).
    16        HOOKS V. KITSAP TENANT SUPPORT SERVS.
    176, 183 (2004) (“[O]ur inquiry begins with the statutory
    text, and ends there as well if the text is unambiguous.”).
    The D.C. Circuit in SW General, Inc. v. NLRB, 
    796 F.3d 67
    (D.C. Cir. 2015), recently addressed the identical issue of
    whether Solomon validly served as the NLRB’s Acting
    General Counsel once he had been nominated. In SW
    General, after thoroughly analyzing the statutory text and
    legislative history, the D.C. Circuit held that § 3345(b)(1)
    applies not only to (a)(1), but also to (a)(2) and (a)(3). 
    Id. at 72–78.
    Thus, because Solomon, who was designated Acting
    General Counsel pursuant to (a)(3), “was never a first
    assistant and the President nominated him to be General
    Counsel on January 5, 2011,” the D.C. Circuit concluded
    that “the FVRA prohibited him from serving as Acting
    General Counsel from [the] date [of his nomination]
    forward.” 
    Id. at 78.
    We agree with the D.C. Circuit as to
    § 3345(b)(1)’s reach and thus likewise conclude that
    Solomon lacked the authority to serve after he was
    nominated. 9
    Subsection       (b)(1)      begins      by      specifying,
    “[n]otwithstanding subsection (a)(1), a person may not serve
    as an acting officer for an office under this section” if certain
    criteria are met. 5 U.S.C. § 3345(b)(1). As the D.C. Circuit
    recognized, Congress’s use of “a person” suggests that the
    phrase broadly “covers the full spectrum of possible
    candidates for acting officer,” which includes all persons
    9
    We additionally note that Solomon’s nomination was not pending at
    the time that, according to the Board, he authorized the 10(j) petition—
    because the purported authorization occurred after the Senate had
    returned Solomon’s nomination but before the President resubmitted it.
    The Board does not argue that this matters to the analysis, and we
    assume, as did the D.C. Circuit, that it does not. See SW 
    General, 796 F.3d at 72
    n.3.
    HOOKS V. KITSAP TENANT SUPPORT SERVS.                17
    contemplated by (a)(1), (a)(2), and (a)(3). SW 
    Gen., 796 F.3d at 74
    ; see also Pfizer, Inc. v. Gov’t of India,
    
    434 U.S. 308
    , 312 (1978) (“the phrase ‘any person’” has a
    “naturally broad and inclusive meaning”); Gale v. First
    Franklin Loan Servs., 
    701 F.3d 1240
    , 1246 (9th Cir. 2012)
    (stating that “a” has a “generalizing force” and indicating
    that “a” is synonymous with “any” (citing Onink v.
    Cardelucci (In re Cardelucci), 
    285 F.3d 1231
    , 1234 (9th Cir.
    2002))). If Congress meant for (b)(1) to apply only to (a)(1),
    which refers only to first assistants, it likely would have said
    “first assistant” instead of “a person.”
    In addition, in the context of the surrounding sections,
    Congress’s use of the phrase “this section” indicates that
    Congress intended to refer to § 3345 in its entirety. See
    
    Gale, 701 F.3d at 1244
    (“the words of a statute must be read
    in their context and with a view to their place in the overall
    statutory scheme” (quoting Am. Bankers Ass’n v. Gould,
    
    412 F.3d 1081
    , 1086 (9th Cir. 2005))). As the D.C. Circuit
    correctly recognized, “[t]hroughout the FVRA, the Congress
    was precise in its use of internal cross-references,” using the
    term “subsection” or “paragraph” when it meant to refer to
    something less than a whole section. SW 
    Gen., 796 F.3d at 74
    (citing, inter alia, 5 U.S.C. §§ 3345(b)(2)(A)
    (“subsection (a)”); 3345(c)(1) (“subsection (a)(1)”);
    3345(a)(2)–(3) (“paragraph (1)”)). Thus, if Congress had
    intended (b)(1) to apply only to (a)(1), it likely would have
    said “that subsection” instead of “this section,” consistent
    with the rest of the statute. 
    Id. The plain
    language of (b)(1)
    thus indicates its applicability to all three subsections of
    § 3345(a), not merely (a)(1).
    The Board disputes this interpretation, arguing that
    because (b)(1) begins with the language “[n]otwithstanding
    subsection (a)(1),” (b)(1)’s application must be limited to
    18      HOOKS V. KITSAP TENANT SUPPORT SERVS.
    (a)(1). This argument is in tension, however, with the
    ordinary meaning of the word “notwithstanding.” See
    Sandifer v. U.S. Steel Corp., 
    134 S. Ct. 870
    , 876 (2014)
    (“unless otherwise defined, words will be interpreted
    as taking their ordinary, contemporary, common meaning”
    (quoting Perrin v. United States, 
    444 U.S. 37
    , 42
    (1979))). The word “notwithstanding” means “in spite of.”
    Oxford         English      Dictionary, http://www.oed.com/
    view/Entry/128667?redirectedFrom=notwithstanding#eid;
    see      also     Merriam-Webster,      http://www.merriam-
    webster.com/dictionary/notwithstanding (defining “notwith
    standing” as “despite” or “without being prevented by”).
    Consistent with this definition, as well as Supreme Court
    guidance, we have explained that “as a general proposition
    . . . statutory ‘notwithstanding’ clauses” work to “sweep
    aside potentially conflicting laws.” United States v. Novak,
    
    476 F.3d 1041
    , 1046 (9th Cir. 2007) (en banc) (citing
    Cisneros v. Alpine Ridge Grp., 
    508 U.S. 10
    , 18 (1993)).
    Applying this definition here, “[n]otwithstanding
    subsection (a)(1)” simply means that (b)(1)’s limitations
    control, even to the extent that (a)(1)’s automatic directive
    that first assistants “shall” serve in an acting capacity may
    conflict with those limitations. Nothing about this textual
    construction indicates that (b)(1) applies only to (a)(1); it
    merely “sweep[s] aside [the] potentially conflicting”
    provisions of (a)(1). 
    Novack, 476 F.3d at 1046
    ; see also SW
    
    Gen., 796 F.3d at 75
    (“Congress likely referenced subsection
    (a)(1) to clarify that its command—that the first assistant
    ‘shall’ take over as acting officer—does not supersede the
    prohibition in subsection (b)(1). But, apart from setting out
    HOOKS V. KITSAP TENANT SUPPORT SERVS.                      19
    an order of operations, the ‘notwithstanding’ clause has no
    significance for the ultimate scope of subsection (b)(1).”). 10
    Furthermore, adopting the Board’s interpretation of the
    FVRA would result in surplusage. “It is ‘a cardinal principle
    of statutory construction’ that ‘a statute ought, upon the
    whole, to be so construed that, if it can be prevented, no
    clause, sentence, or word shall be superfluous, void, or
    insignificant.’” TRW Inc. v. Andrews, 
    534 U.S. 19
    , 31
    (2001) (quoting Duncan v. Walker, 
    533 U.S. 167
    , 174
    (2001)); see also Bosley Med. Inst., Inc. v. Kremer, 
    403 F.3d 672
    , 681 (9th Cir. 2005) (“We try to avoid, where possible,
    an interpretation of a statute ‘that renders any part of it
    superfluous and does not give effect to all of the words used
    by Congress.’” (quoting Nevada v. Watkins, 
    939 F.2d 710
    ,
    715 (9th Cir. 1991))). If (b)(1) applies only to (a)(1), which
    refers only to first assistants, then (b)(1)’s reference to
    persons who “did not serve in the position of first assistant
    to the office of such officer,” 5 U.S.C. § 3345(b)(1)(A)(i),
    would be, as the D.C. Circuit recognized, “inoperative
    because the current first assistant necessarily served as the
    first assistant in the previous year.” SW 
    Gen., 796 F.3d at 76
    . If, however, (b)(1) applies to all acting officers—
    including those designated under (a)(2) and (a)(3)—“then
    subsection (b)(1)(A)(i) is not superfluous because many
    [such] officers . . . will not have served as the first assistant
    in the prior year.” 
    Id. The Board
    argues that our reading of (b)(1) would itself
    render superfluous the phrase “[n]otwithstanding subsection
    10
    As the D.C. Circuit also pointed out in SW General, Congress used
    the phrase “[f]or purposes of” in § 3345(c)(2), which indicates that “it
    knew how to use limiting language when it wanted 
    to.” 796 F.3d at 75
    .
    If (b)(1) were meant to relate only to (a)(1), Congress likely would have
    said “for purposes of subsection (a)(1),” instead of “notwithstanding.”
    20       HOOKS V. KITSAP TENANT SUPPORT SERVS.
    (a)(1).” If (b)(1) limits all of (a), in the Board’s view there
    is no reason for Congress to have singled out (a)(1) in
    particular in the “notwithstanding” clause. This argument
    misses the point of that clause and the effect of (a)(1).
    Subsection (a)(1)—and only (a)(1)—provides for a default
    rule, by which the first assistant automatically becomes the
    acting officer. The “notwithstanding” language, as used in
    (a)(2), (a)(3), and (b)(1), simply provides that, although that
    default rule exists, these other provisions still apply.
    Without the “notwithstanding” clause, confusion could
    easily arise as to whether (b)(1) has any force in light of the
    fact that a default rule exists. We thus disagree with the
    Board’s contention that our reading deprives the
    “notwithstanding” clause of independent meaning.
    We also disagree with the Board’s further argument that
    it is “structurally implausible” that (b)(1) applies to (a)(3).
    Specifically, the Board argues that because (b)(1)’s criteria
    for serving as an acting officer are linked to service as a first
    assistant, it does not make sense for an otherwise qualified
    senior agency official designated under (a)(3)—a subsection
    that has nothing to do with first assistants—to also have to
    satisfy the requirements of (b)(1). This argument overlooks
    the fact that (b)(1) does not set out general criteria for
    designation as an acting officer; instead, (b)(1) comes into
    play only when “the President submits a nomination of such
    person to the Senate for appointment to such office.”
    5 U.S.C. § 3345(b)(1)(B). An official needs to meet the
    requirements of both subsections (a) and (b)(1)(A) in order
    to continue to serve in an acting capacity only if the official
    is also nominated for the permanent position. There is thus
    no “implausibility,” structural or otherwise, in our reading of
    the statute.
    HOOKS V. KITSAP TENANT SUPPORT SERVS.             21
    The Board seems to contend in its reply brief that, even
    if this construction of the statute is logically plausible,
    Congress could not have meant for persons otherwise
    qualified to serve as acting officers under (a)(2) and (a)(3) to
    also have to meet the requirements of (b)(1) if they are
    nominated to the permanent office. The Board contends that
    (b)(1) simply provides a minimum career-service
    requirement—ninety days—for a first assistant to serve in
    both an acting capacity and as the nominee. Without such a
    requirement, the first assistant position could be
    “manipulat[ed]” to include “persons highly unlikely to be
    career officials.” Because (a)(3), according to the Board,
    already includes a ninety-day service requirement, it would
    be “illogical[] [for] service as a first assistant [to be] a
    minimum requirement for serving as an acting officer-
    nominee,” even if the president were relying on (a)(2) or
    (a)(3) to designate an acting officer.
    The Board, however, provides no reasons why such a
    scheme would be “illogical.” Indeed, it is not difficult to see
    why congressional concerns about “manipulation” could not
    have extended to prior Senate-confirmed officers and senior
    agency employees. A designation of a prior Senate-
    confirmed officer to the acting position could just as easily
    be used for “manipulation” as a first assistant of insufficient
    tenure. Such an officer may be equally ill-equipped to run a
    particular agency insofar as the officer, although previously
    Senate-confirmed, may have been confirmed to a dissimilar
    position in a different field.
    In this regard, we find it informative that § 3345(b)(2) 11
    exempts from (b)(1)’s limitations only a person who was
    11
    5 U.S.C. § 3345(b)(2) reads:
    22      HOOKS V. KITSAP TENANT SUPPORT SERVS.
    confirmed by the Senate to be first assistant for the agency
    in question. The inclusion of (b)(2) suggests that Congress
    was focused not on prior Senate confirmation as a guarantee
    of qualification to be simultaneously an acting officer and
    nominee but rather on whether the person is serving as a first
    assistant and that that office itself requires Senate
    confirmation. Subsection (b)(2) ensures that the acting
    officer also nominated to the permanent position has already
    been vetted by the Senate specifically for appointment to that
    agency and for a role similar to the position to which he or
    she has most recently been nominated. The text suggests
    that Congress was careful to carve out an exception to (b)(1)
    not for any previously Senate-confirmed acting officer, but
    only for an individual confirmed to be first assistant to the
    permanent position in question.
    As to senior agency employees, although the pay scale
    and tenure requirements of (a)(3) may ensure designees of
    adequate experience within the agency, Congress still could
    have chosen to exclude such persons from simultaneously
    serving as acting officers and nominees. Congress may have
    decided that only first assistants—rather than just any GS-15
    (2) Paragraph [(b)](1) shall not apply to any person
    if—
    (A) such person is serving as the first assistant to
    the office of an officer described under subsection
    (a);
    (B) the office of such first assistant is an office for
    which appointment is required to be made by the
    President, by and with the advice and consent of
    the Senate; and
    (C) the Senate has approved the appointment of
    such person to such office.
    HOOKS V. KITSAP TENANT SUPPORT SERVS.                       23
    employee—hold the requisite seniority and experience to
    appropriately serve in both capacities (or, perhaps more
    saliently, to continue serving in an acting capacity even if the
    nomination does not succeed, see 5 U.S.C. § 3346). 12
    In any event, instead of speculating as to Congress’s
    intent or second-guessing the wisdom of the statute’s plain
    language, we give effect to the unambiguous words
    Congress actually used. See Gov’t of Guam ex rel. Guam
    Econ. Dev. Auth. v. United States, 
    179 F.3d 630
    , 635 (9th
    Cir. 1999) (“[W]e are bound by the words that Congress
    actually used.”). As the Supreme Court has long held, “[i]t
    is our judicial function to apply statutes on the basis of what
    Congress has written, not what Congress might have
    written.” United States v. Great N. Ry. Co., 
    343 U.S. 562
    ,
    575 (1952).
    12
    Section 3346(a) provides, in relevant part, that “the person serving
    as an acting officer as described under section 3345” may serve for no
    longer than 210 days beginning on the date of the vacancy, or, “once a
    first or second nomination for the office is submitted to the Senate, from
    the date of such nomination for the period that the nomination is pending
    in the Senate.” 5 U.S.C. § 3346(a). Section 3346(b)(1) provides that the
    acting officer may continue to serve in that position for another 210 days
    if “the first nomination for the office is rejected by the Senate,
    withdrawn, or returned to the President by the Senate.” If a second
    nomination is submitted, § 3346(b)(2) provides that the person may
    again continue serving in an acting capacity until “the second nomination
    is confirmed” or “for no more than 210 days after the second nomination
    is rejected, withdrawn, or returned.” Thus, § 3346 has the effect of
    extending an acting officer’s tenure even after that individual’s
    nomination is unsuccessful—which is what happened in Solomon’s
    case. It would be plausible for Congress, through § 3345(b)(1), to have
    intended to limit the pool of individuals who may serve for an extended
    period of time despite their failed nomination.
    24      HOOKS V. KITSAP TENANT SUPPORT SERVS.
    In sum, the text of the FVRA clearly and unambiguously
    operates to make (b)(1) applicable to all subsections of
    § 3345(a), not merely to (a)(1).
    2
    When the statutory language is unambiguous and the
    statutory scheme is coherent and consistent, our inquiry
    comes to an end, without any inquiry into legislative history.
    Miranda v. Anchondo, 
    684 F.3d 844
    , 849 (9th Cir. 2012).
    Even if we could consider the legislative history of the
    FVRA, however, the legislative history is inconclusive as to
    Congress’s intent.
    The Board attempts to support its proposed interpretation
    with a floor statement by the FVRA’s chief sponsor, Senator
    Thompson, providing: “Under § 3345(b)(1), the revised
    reference to § 3345(a)(1) means that this subsection applies
    only when the acting officer is the first assistant, and not
    when the acting officer is designated by the President
    pursuant to §§ 3345(a)(2) or 3345(a)(3).” 144 Cong. Rec.
    S12822 (daily ed. Oct. 21, 1998). Although this statement
    does support the Board’s interpretation rather than the one
    we glean from the text, it is not the only statement on the
    subject. Comments by co-sponsor Senator Byrd are in direct
    tension with those of Senator Thompson. Senator Byrd
    “hewed much more closely to the statutory text and
    suggested that subsection (b)(1) applies to all categories of
    acting officers.” SW 
    Gen., 796 F.3d at 77
    . In particular, after
    listing the three categories of potential acting officers under
    subsection (a), Senator Byrd stated:
    However, a person may not serve as an acting
    officer if: (1)(a) he is not the first assistant, or
    (b) he has been the first assistant for less than
    90 of the past 365 days, and has not been
    HOOKS V. KITSAP TENANT SUPPORT SERVS.                25
    confirmed for the position; and (2) the
    President nominates him to fill the vacant
    office.
    144 Cong. Rec. S12824 (daily ed. Oct. 21, 1998) (emphasis
    added). Senator Byrd’s use of the word “however” suggests
    that the (b)(1) provisions restrict all of the three categories
    in subsection (a) that he had just described. That is, instead
    of simply restating “notwithstanding subsection (a)(1)” or
    agreeing with Senator Thompson’s remarks about the scope
    of (b)(1), Senator Byrd’s wording implied that (b)(1)
    restricts all of subsection (a) and not merely (a)(1). The floor
    statements by the FVRA’s sponsors are thus in tension with
    each other and could not help interpret (b)(1) even if the text
    were ambiguous.
    The Board also makes various arguments based on
    portions of a Senate Report on an earlier version of the bill.
    See S. Rep. No. 105-250, 
    1998 WL 404532
    (July 15, 1998).
    We agree with the D.C. Circuit that these portions of the
    Senate Report are “inapposite because [they] discuss[] a
    different version of the FVRA from the one ultimately
    enacted.” SW 
    Gen., 796 F.3d at 77
    . The earlier version of
    § 3345(b) provided:
    (b) Notwithstanding section 3346(a)(2)
    [which governs the length of time an acting
    officer may serve upon nomination], a person
    may not serve as an acting officer for an
    office under this section, if—
    (1) on the date of the death, resignation,
    or beginning of inability to serve[] of the
    applicable officer, such person serves in
    26      HOOKS V. KITSAP TENANT SUPPORT SERVS.
    the position of first assistant to such
    officer;
    (2) during the 365-day period preceding
    such date, such person served in the
    position of first assistant to such officer
    for less than 180 days; and
    (3) the President submits a nomination of
    such person to the Senate for appointment
    to such office.
    S. Rep. No. 105-250, 
    1998 WL 404532
    , at *25 (emphases
    added). As the D.C. Circuit correctly observed, the earlier
    draft of subsection (b) “manifestly applie[d] to first
    assistants only. But the version ultimately enacted looks
    quite different.” SW 
    Gen., 796 F.3d at 77
    . “[W]hen
    Congress does not adopt limiting language contained in a
    draft bill, such an action is ordinarily deemed evidence of
    Congressional intent to reject the limitation.” Nuclear Info.
    & Res. Serv. v. U.S. Dep’t of Transp. Res. & Special
    Programs Admin., 
    457 F.3d 956
    , 962 (9th Cir. 2006). Thus,
    we agree with the D.C. Circuit’s determination that “the
    change in phraseology weighs somewhat against the
    Board’s interpretation.” SW 
    Gen., 796 F.3d at 77
    .
    Next, the Board argues that the purposes of the FVRA
    would be frustrated by our interpretation of (b)(1). The
    Board points again to floor statements by Senator
    Thompson, who said that the (a)(3) category for acting
    officers was added to address concerns that there may be a
    shortage of first assistants or Senate-confirmed officers to
    fill all acting positions, particularly in the early days of a
    presidential administration. 144 Cong. Rec. S12822.
    According to the Board, reading (b)(1) to apply to acting
    officers other than first assistants would undermine (a)(3)’s
    HOOKS V. KITSAP TENANT SUPPORT SERVS.                27
    goal of expanding the pool of potential acting officers. Our
    reading of (b)(1), however, does not directly limit the pool
    of potential acting officers. Subsection (b)(1) affects instead
    the pool of potential acting officers who may also be
    nominated for permanent posts—a separate circumstance
    that Senator Thompson’s statements do not expressly
    address.
    In a similar vein, the Board contended at oral argument
    that our reading of (b)(1) cannot be correct because it would
    “greatly . . . limit the president’s options” in designating and
    nominating acting officers. But there is no indication that
    Congress intended to make it easier for the President to
    simultaneously designate as acting officers and also
    nominate more persons of his or her choosing. If anything,
    the legislative history of the FVRA suggests the opposite
    motivation. The Senate Report states that legislation was
    required to “uphold the Senate’s prerogative to advise and
    consent to nominations through placing a limit on
    presidential power to appoint temporary officials.” S. Rep.
    105-250, at 
    1998 WL 404532
    , *4. When vacancies arise,
    “[t]he president’s duty is to submit nominees for offices to
    the Senate, not to fill those offices himself.” 
    Id. at *5.
    The
    Senate Report noted that previous legislation “unfortunately
    has not succeeded in encouraging presidents to submit
    nominees in a timely fashion . . . . Indeed, given the number
    of acting officials and the growing number of departments
    that claim not to be covered by the [prior Vacancies Act], the
    Senate’s confirmation power is being undermined as never
    before.” 
    Id. The Senate
    Report suggests that the FVRA was
    motivated by a desire to reassert the Senate’s confirmation
    power in the face of what was seen as executive overreach.
    See SW 
    Gen., 796 F.3d at 70
    (“The statute was framed as a
    reclamation of the Congress’s Appointments Clause
    power.”). Our reading of (b)(1), which limits the President’s
    28      HOOKS V. KITSAP TENANT SUPPORT SERVS.
    choice of who can concurrently serve in an acting capacity
    and be nominated to the permanent position, seems
    consistent with such a purpose.
    Finally, the Board contends that its interpretation of the
    statute is supported by guidance documents and letters from
    the Government Accountability Office and the Office of
    Legal Counsel. Neither Office is charged with administering
    the FVRA, however, and we give no deference to
    interpretations of statutes by agencies not charged with
    administering them. See Ass’n of Civilian Techs., Silver
    Barons Chapter v. Fed. Labor Relations Auth., 
    200 F.3d 590
    , 592 (9th Cir. 2000); Parola v. Weinberger, 
    848 F.2d 956
    , 959–60 (9th Cir. 1988). In any event, for the reasons
    discussed, we believe the GAO’s and OLC’s interpretation,
    which accords with the Board’s, conflicts with the plain text
    of the statute.
    III.
    The parties do not dispute that our interpretation of the
    FVRA requires that the Board’s 10(j) petition be dismissed
    for lack of proper authorization. This is not to suggest,
    however, that every violation of the FVRA will result in the
    invalidation of the challenged agency action. Although the
    FVRA generally renders void actions taken in violation of
    its provisions, see 5 U.S.C. § 3348(d)(1)–(2), it also exempts
    from that automatic result actions by a select pool of officers,
    including the General Counsel of the NLRB, see 5 U.S.C.
    § 3348(e). The exemption provision thus “renders the
    actions of [such] improperly serving [officers, including the
    Acting General Counsel,] voidable, not void.” SW Gen., Inc.
    v. NLRB, 
    796 F.3d 67
    , 79 (D.C. Cir. 2015). In addition to
    this provision, defenses based on harmless error or the de
    facto officer doctrine might potentially be raised to
    overcome the consequences of particular FVRA
    HOOKS V. KITSAP TENANT SUPPORT SERVS.                         29
    violations. 13 See 
    id. at 79–82;
    Hooks v. Remington Lodging
    & Hosp., LLC, 
    8 F. Supp. 3d 1178
    , 1189–92 (D. Alaska
    2014). Here, however, the Board has explicitly waived any
    arguments based on the FVRA’s exemption clause, 5 U.S.C.
    § 3348(e), and it does not otherwise contest the remedy
    sought by KTSS. 14
    The district court’s dismissal of the 10(j) petition is
    therefore AFFIRMED.
    13
    The de facto officer doctrine “confers validity upon acts performed
    by a person acting under the color of official title even though it is later
    discovered that the legality of that person’s appointment or election to
    office is deficient.” Nguyen v. United States, 
    539 U.S. 69
    , 77 (2003)
    (quoting Ryder v. United States, 
    515 U.S. 177
    , 180 (1995)).
    14
    The Board suggests for the first time in a letter filed after oral
    argument pursuant to Federal Rule of Appellate Procedure 28(j) that the
    de facto officer defense is available here. Even if we could consider such
    a defense despite the Board’s explicit waiver of the § 3348(e) issue, that
    defense would have been waived for the separate reason that it was
    available at the time the Board filed its opening brief and yet was not
    raised. See United States v. McEnry, 
    659 F.3d 893
    , 902 (9th Cir. 2011)
    (rejecting a harmless error argument raised for the first time in a 28(j)
    letter where that argument was available at the time the party filed its
    initial brief); United States v. LaPierre, 
    998 F.2d 1460
    , 1466 n.5 (9th
    Cir. 1993) (28(j) letter “cannot raise a new issue” that was not addressed
    in the briefs).