Hooks Ex Rel. National Labor Relations Board v. Kitsap Tenant Support Services, Inc. , 816 F.3d 550 ( 2016 )

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).