Nat'l Labor Relations Bd. v. SW Gen., Inc. , 137 S. Ct. 929 ( 2017 )

(Slip Opinion) OCTOBER TERM, 2016 1
Syllabus
NOTE: Where it is feasible, a syllabus (headnote) will be released, as is
being done in connection with this case, at the time the opinion is issued.
The syllabus constitutes no part of the opinion of the Court but has been
prepared by the Reporter of Decisions for the convenience of the reader.
See United States v. Detroit Timber & Lumber Co., 200 U.S. 321, 337.
SUPREME COURT OF THE UNITED STATES
Syllabus
NATIONAL LABOR RELATIONS BOARD v. SW
GENERAL, INC., DBA SOUTHWEST AMBULANCE
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR
THE DISTRICT OF COLUMBIA CIRCUIT
No. 15–1251. Argued November 7, 2016—Decided March 21, 2017
Article II of the Constitution requires that the President obtain “the
Advice and Consent of the Senate” before appointing “Officers of the
United States.” §2, cl. 2. Given this provision, the responsibilities of
an office requiring Presidential appointment and Senate confirma-
tion (PAS office) may go unperformed if a vacancy arises and the
President and Senate cannot promptly agree on a replacement. Con-
gress has accounted for this reality by giving the President limited
authority to appoint acting officials to temporarily perform the func-
tions of a vacant PAS office without first obtaining Senate approval.
The current version of that authorization is the Federal Vacancies
Reform Act of 1998 (FVRA). Section 3345(a) of the FVRA permits
three categories of Government officials to perform acting service in a
vacant PAS office. Subsection (a)(1) prescribes the general rule that,
if a vacancy arises in a PAS office, the first assistant to that office
“shall perform” the office’s “functions and duties temporarily in an
acting capacity.” Subsections (a)(2) and (a)(3) provide that, “notwith-
standing paragraph (1),” the President “may direct” a person already
serving in another PAS office, or a senior employee in the relevant
agency, to serve in an acting capacity instead.
Section 3345 also makes certain individuals ineligible for acting
service. Subsection (b)(1) states: “Notwithstanding subsection (a)(1),
a person may not serve as an acting officer for an office under this
section” if the President nominates him for the vacant PAS office and,
during the 365-day period preceding the vacancy, the person “did not
serve in the position of first assistant” to that office or “served in
[that] position . . . for less than 90 days.”
The general counsel of the National Labor Relations Board (NLRB
2 N.L.R.B. v. SW GENERAL, INC.
Syllabus
or the Board) is a PAS office. In June 2010, a vacancy arose in that
office, and the President directed Lafe Solomon to serve as acting
general counsel. Solomon qualified for acting service under subsec-
tion (a)(3) of the FVRA, because he was a senior employee at the
NLRB. In January 2011, the President nominated Solomon to serve
as the NLRB’s general counsel on a permanent basis. The Senate
never took action on the nomination, and the President ultimately
withdrew Solomon’s name in favor of a new candidate, whom the
Senate confirmed in October 2013. Throughout this entire period
Solomon served as the acting general counsel to the NLRB.
In January 2013, an NLRB Regional Director, exercising authority
on Solomon’s behalf, issued an unfair labor practices complaint
against respondent SW General, Inc. An Administrative Law Judge
concluded that SW General had committed unfair labor practices,
and the NLRB agreed. SW General sought review in the United
States Court of Appeals for the District of Columbia Circuit, arguing
that the complaint was invalid because, under subsection (b)(1) of the
FVRA, Solomon could not perform the duties of general counsel to the
NLRB after having been nominated to fill that position. The NLRB
countered that subsection (b)(1) applies only to first assistants who
automatically assume acting duties under subsection (a)(1), not to
acting officers who, like Solomon, serve under (a)(2) or (a)(3). The
Court of Appeals vacated the Board’s order. It concluded that the
prohibition on acting service by nominees contained in subsection
(b)(1) applies to all acting officers, regardless of whether they serve
pursuant to subsection (a)(1), (a)(2), or (a)(3). As a result, Solomon
became ineligible to perform the duties of general counsel in an act-
ing capacity once the President nominated him to fill that post.
Held:
1. Subsection (b)(1) of the FVRA prevents a person who has been
nominated to fill a vacant PAS office from performing the duties of
that office in an acting capacity. The prohibition applies to anyone
performing acting service under the FVRA. It is not limited to first
assistants performing acting service under subsection (a)(1). Pp. 8–
18.
(a) The text of the FVRA requires this conclusion. Pp. 8–14.
(1) Subsection (b)(1) applies to any “person” and prohibits ser-
vice “as an acting officer for an office under this section.” “Person”
has an expansive meaning that can encompass anyone who performs
acting duties under the FVRA. See Pfizer Inc. v. Government of In-
dia, 434 U.S. 308, 312. And “under this section” clarifies that sub-
section (b)(1) applies to all of §3345: The FVRA contains cross-
references to specific subsections and paragraphs. But subsection
(b)(1) refers to §3345, which contains all of the ways a person may be-
Cite as: 580 U. S. ____ (2017) 3
Syllabus
come an acting officer. The rest of the FVRA also uses the pairing of
“person” and “section” to encompass anyone serving as an acting of-
ficer under the FVRA, and Congress could readily have used more
specific language if it intended subsection (b)(1) to apply only to first
assistants acting under (a)(1).
The dependent clause at the beginning of subsection (b)(1)—
“[n]otwithstanding subsection (a)(1)”—confirms the breadth of the
prohibition on acting service by nominees. In statutes, “notwith-
standing” clauses show that one provision prevails over another in
the event of a conflict. Here, that means that subsection (b)(1) ap-
plies even when it conflicts with the default rule in (a)(1) that first
assistants “shall perform” acting duties. Pp. 8–10.
(2) The Board argues that, because the phrase “notwithstand-
ing subsection (a)(1)” does not mention (a)(2) or (a)(3), Congress did
not intend the prohibition in subsection (b)(1) to apply to people serv-
ing as acting officers under those provisions. The Board relies on the
“interpretive canon, expressio unius est exclusio alterius, expressing
one item of [an] associated group or series excludes another left un-
mentioned.” Chevron U. S. A. Inc. v. Echazabal, 536 U.S. 73, 80 (in-
ternal quotation marks omitted).
This interpretive canon applies, however, only when “circumstanc-
es support[ ] a sensible inference that the term left out must have
been meant to be excluded.” Id., at 81. A “notwithstanding” clause
does not naturally give rise to such an inference; it just shows which
of two or more provisions prevails in the event of a conflict. Singling
out one conflict generally does not suggest that other, unaddressed
conflicts should be resolved in the opposite manner. Here, the con-
flict between (a)(1) and (b)(1) is unique: The former uses mandatory
language—the first assistant “shall perform” acting duties—while the
latter identifies who “may not” serve as an acting officer. The “not-
withstanding” clause clarifies that the mandatory language in sub-
section (a)(1) does not prevail over subsection (b)(1) in the event of a
conflict. Subsections (a)(2) and (a)(3) lack that mandatory language,
so the natural inference is that Congress left these provisions out of
the “notwithstanding” clause because they differ from subsection
(a)(1), not to implicitly exempt them from the prohibition in subsec-
tion (b)(1).
Moreover, subsection (b)(2) specifies that (b)(1) “shall not apply” to
certain people who are “serving as the first assistant.” If (b)(1) ap-
plied only to first assistants, stating that limitation would be super-
fluous. Pp. 10–14.
(b) Because the text is clear, the Board’s arguments about legis-
lative history, purpose, and post-enactment practice need not be con-
sidered. In any event, its arguments are not compelling.
4 N.L.R.B. v. SW GENERAL, INC.
Syllabus
The original draft of the FVRA contained a prohibition on nomi-
nees serving as acting officers, but explicitly limited that prohibition
to first assistants. The Board argues that, when Congress revised
this original draft, it made changes to give the President more flexi-
bility to appoint acting officers and did not intend to broaden the
prohibition on nominees performing acting service. The glitch in this
argument is that Congress did change the prohibition on nominees
performing acting service, revising it to clearly apply to all acting of-
ficers. The fact that certain Senators stated that they wanted to give
the President more flexibility to appoint acting officials does not
mean that they got exactly what they wanted. Nor does a statement
by one of the sponsors of the FVRA—who said that subsection (b)(1)
applies only to first assistants—overcome the clear text, particularly
given that the very next Senator to speak offered a contradictory ac-
count of the provision.
The Board also argues that, since the FVRA was enacted, Congress
has not objected when Presidents have nominated individuals who
were serving as acting officers under subsection (a)(2) or (a)(3), and
that the Office of Legal Counsel and Government Accountability Of-
fice have issued guidance construing subsection (b)(1) to apply only to
first assistants. Relying on NLRB v. Noel Canning, the Board con-
tends that this “historical practice” is entitled to “significant weight.”
573 U. S. ___.
“[H]istorical practice” is too grand a title for the Board’s evidence.
The FVRA was not enacted until 1998, and the evidence the Board
cites is not significant enough to warrant the conclusion that Con-
gress’s failure to speak up implies that it has acquiesced in the view
that subsection (b)(1) applies only to first assistants. By contrast, the
Court’s decision in Noel Canning dealt with the President’s constitu-
tional authority under the Recess Appointments Clause; an issue
that had attracted intense attention from Presidents, Attorneys Gen-
eral, and the Senate dating back to the beginning of the Republic.
Pp. 14–18.
2. Applying the FVRA to this case is straightforward. Subsection
(b)(1) prohibited Solomon from continuing his service as acting gen-
eral counsel once the President nominated him to fill the position
permanently. The President could have appointed another person to
serve as acting officer in Solomon’s place, but did not do so. P. 18.
796 F.3d 67, affirmed.
ROBERTS, C. J., delivered the opinion of the Court, in which KENNEDY,
THOMAS, BREYER, ALITO, and KAGAN, JJ., joined. THOMAS, J., filed a
concurring opinion. SOTOMAYOR, J., filed a dissenting opinion, in which
GINSBURG, J., joined.
Cite as: 580 U. S. ____ (2017) 1
Opinion of the Court
NOTICE: This opinion is subject to formal revision before publication in the
preliminary print of the United States Reports. Readers are requested to
notify the Reporter of Decisions, Supreme Court of the United States, Wash-
ington, D. C. 20543, of any typographical or other formal errors, in order
that corrections may be made before the preliminary print goes to press.
SUPREME COURT OF THE UNITED STATES
_________________
No. 15–1251
_________________
NATIONAL LABOR RELATIONS BOARD, PETITIONER
v. SW GENERAL, INC., DBA SOUTHWEST
AMBULANCE
ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT
[March 21, 2017]
CHIEF JUSTICE ROBERTS delivered the opinion of the
Court.
Article II of the Constitution requires that the President
obtain “the Advice and Consent of the Senate” before
appointing “Officers of the United States.” §2, cl. 2. Given
this provision, the responsibilities of an office requiring
Presidential appointment and Senate confirmation—
known as a “PAS” office—may go unperformed if a va-
cancy arises and the President and Senate cannot promptly
agree on a replacement. Congress has long accounted
for this reality by authorizing the President to direct
certain officials to temporarily carry out the duties of a
vacant PAS office in an acting capacity, without Senate
confirmation.
The Federal Vacancies Reform Act of 1998 (FVRA), 5
U.S. C. §3345 et seq., is the latest version of that authori-
zation. Section 3345(a) of the FVRA authorizes three
classes of Government officials to become acting officers.
The general rule is that the first assistant to a vacant
office shall become the acting officer. The President may
2 N.L.R.B. v. SW GENERAL, INC.
Opinion of the Court
override that default rule by directing either a person
serving in a different PAS office or a senior employee
within the relevant agency to become the acting officer
instead.
The FVRA, however, prohibits certain persons from
serving as acting officers if the President has nominated
them to fill the vacant office permanently. The question
presented is whether that limitation applies only to first
assistants who have automatically assumed acting duties,
or whether it also applies to PAS officers and senior em-
ployees serving as acting officers at the President’s behest.
We hold that it applies to all three categories of acting
officers.
I
A
The Senate’s advice and consent power is a critical
“structural safeguard[ ] of the constitutional scheme.”
Edmond v. United States, 520 U.S. 651, 659 (1997). The
Framers envisioned it as “an excellent check upon a spirit
of favoritism in the President” and a guard against “the
appointment of unfit characters . . . from family connec-
tion, from personal attachment, or from a view to popular-
ity.” The Federalist No. 76, p. 457 (C. Rossiter ed. 1961)
(A. Hamilton). The constitutional process of Presidential
appointment and Senate confirmation, however, can take
time: The President may not promptly settle on a nominee
to fill an office; the Senate may be unable, or unwilling, to
speedily confirm the nominee once submitted. Yet neither
may desire to see the duties of the vacant office go unper-
formed in the interim.
Since President Washington’s first term, Congress has
given the President limited authority to appoint acting
officials to temporarily perform the functions of a vacant
PAS office without first obtaining Senate approval. The
earliest statutes authorized the appointment of “any
Cite as: 580 U. S. ____ (2017) 3
Opinion of the Court
person or persons” to fill specific vacancies in the Depart-
ments of State, Treasury, and War. Act of May 8, 1792,
ch. 37, §8, 1 Stat. 281. Congress at first allowed acting
officers to serve until the permanent officeholder could
resume his duties or a successor was appointed, ibid., but
soon imposed a six-month limit on acting service, Act of
Feb. 13, 1795, ch. 21, 1 Stat. 415.
Congress revisited the issue in the 1860s, ultimately
passing the Vacancies Act of 1868. The Vacancies Act
expanded the number of PAS offices that the President
could fill with acting officers. Act of July 23, 1868, ch. 227,
15 Stat. 168; see also Act of Feb. 20, 1863, ch. 45, 12 Stat.
656. With that expansion came new constraints. The
authority to appoint “any person or persons” as an acting
officer gave way to a default rule that the “first or sole
assistant . . . shall” perform that function, with an excep-
tion allowing the President to instead fill the post with a
person already serving in a PAS office. 15 Stat. 168. And
rather than six months of acting service, the Vacancies Act
generally authorized only ten days. Ibid. That narrow
window of acting service was later lengthened to 30 days.
Act of Feb. 6, 1891, ch. 113, 26 Stat. 733.
During the 1970s and 1980s, interbranch conflict arose
over the Vacancies Act. The Department of Justice took
the position that, in many instances, the head of an execu-
tive agency had independent authority apart from the
Vacancies Act to temporarily fill vacant offices. The
Comptroller General disagreed, arguing that the Act was
the exclusive authority for temporarily filling vacancies in
executive agencies. See M. Rosenberg, Congressional
Research Service Report for Congress, The New Vacancies
Act: Congress Acts to Protect the Senate’s Confirmation
Prerogative 2–4 (1998) (Rosenberg). Congress then
amended the Vacancies Act to clarify that it applies to
such agencies, while at the same time lengthening the
term of permissible acting service to 120 days, with a
4 N.L.R.B. v. SW GENERAL, INC.
Opinion of the Court
tolling period while a nomination is pending. Id., at 3; see
Presidential Transitions Effectiveness Act, §7, 102 Stat.
988.
But tensions did not ease. By 1998, approximately 20
percent of PAS offices in executive agencies were occupied
by “temporary designees, most of whom had served beyond
the 120-day limitation period . . . without presidential
submissions of nominations.” Rosenberg 1. These acting
officers filled high-level positions, sometimes in obvious
contravention of the Senate’s wishes. One, for instance,
was brought in from outside Government to serve as Act-
ing Assistant Attorney General for the Civil Rights Divi-
sion of the Justice Department, immediately after the
Senate refused to confirm him for that very office. Ibid.;
see M. Rosenberg, Congressional Research Service, Valid-
ity of Designation of Bill Lann Lee as Acting Assistant
Attorney General for Civil Rights 1–3 (1998). Perceiving a
threat to the Senate’s advice and consent power, see Rosen-
berg 6, Congress acted again. In 1998, it replaced the
Vacancies Act with the FVRA.
Section 3345(a) of the FVRA permits three categories of
Government officials to perform acting service in a vacant
PAS office. Subsection (a)(1) prescribes a general rule: If a
person serving in a PAS office dies, resigns, or is otherwise
unable to perform his duties, the first assistant to that
office “shall perform” the office’s “functions and duties . . .
temporarily in an acting capacity.”
The next two paragraphs of §3345(a) identify alterna-
tives. Subsection (a)(2) provides that “notwithstanding
paragraph (1),” the President “may direct a person” who
already serves in a PAS office to “perform the functions
and duties of the vacant office temporarily in an acting
capacity.” Subsection (a)(3) adds that “notwithstanding
paragraph (1),” the President “may direct” a person to
perform acting duties if the person served in a senior
position in the relevant agency for at least 90 days in the
Cite as: 580 U. S. ____ (2017) 5
Opinion of the Court
365-day period preceding the vacancy.1
Section 3345 also makes certain individuals ineligible
for acting service. Subsection (b)(1) states: “Notwithstand-
ing subsection (a)(1), a person may not serve as an acting
officer for an office under this section” if the President
nominates him for the vacant PAS office and, during the
365-day period preceding the vacancy, the individual “did
not serve in the position of first assistant” to that office or
“served in [that] position . . . for less than 90 days.” Sub-
section (b)(2) creates an exception to this prohibition,
providing that “[p]aragraph (1) shall not apply to any
person” serving in a first assistant position that itself
requires the Senate’s advice and consent.
Other sections of the FVRA establish time limits on
acting service and penalties for noncompliance. In most
cases, the statute permits acting service for “210 days
beginning on the date the vacancy occurs”; tolls that time
limit while a nomination is pending; and starts a new 210-
day clock if the nomination is “rejected, withdrawn, or
returned.” §§3346(a)–(b)(1). Upon a second nomination,
the time limit tolls once more, and an acting officer can
serve an additional 210 days if the second nomination
proves unsuccessful. §3346(b)(2). The FVRA ensures
compliance by providing that, in general, “any function or
duty of a vacant office” performed by a person not properly
serving under the statute “shall have no force or effect.”
§3348(d).
B
The National Labor Relations Board (NLRB or Board) is
charged with administering the National Labor Relations
Act. By statute, its general counsel must be appointed by
the President with the advice and consent of the Senate.
——————
1 A senior position is one that has a rate of pay equal to or greater
than the minimum rate “for a position at GS–15 of the General Sched-
ule.” 5 U.S. C. §3345(a)(3)(B).
6 N.L.R.B. v. SW GENERAL, INC.
Opinion of the Court
29 U.S. C. §153(d).
In June 2010, the NLRB’s general counsel—who had
been serving with Senate confirmation—resigned. The
President directed Lafe Solomon to serve temporarily as
the NLRB’s acting general counsel, citing the FVRA as the
basis for the appointment. See Memorandum from Presi-
dent Barack Obama to L. Solomon (June 18, 2010). Solo-
mon satisfied the requirements for acting service under
subsection (a)(3) of the FVRA because he had spent the
previous ten years in the senior position of Director of the
NLRB’s Office of Representation Appeals.
The President had bigger plans for Solomon than acting
service. On January 5, 2011, he nominated Solomon to
serve as the NLRB’s general counsel on a permanent
basis. The Senate had other ideas. That body did not act
upon the nomination during the 112th Congress, so it was
returned to the President when the legislative session
expired. 159 Cong. Rec. S17 (Jan. 3, 2013). The President
resubmitted Solomon’s name for consideration in the
spring of 2013, id., at S3884 (May 23, 2013), but to no
avail. The President ultimately withdrew Solomon’s
nomination and put forward a new candidate, whom the
Senate confirmed on October 29, 2013. Id., at S7635.
Throughout this entire period, Solomon served as the
NLRB’s acting general counsel.
Solomon’s responsibilities included exercising “final
authority” to issue complaints alleging unfair labor prac-
tices. 29 U.S. C. §§153(d), 160(b). In January 2013, an
NLRB Regional Director, exercising authority on Solo-
mon’s behalf, issued a complaint alleging that respondent
SW General, Inc.—a company that provides ambulance
services—had improperly failed to pay certain bonuses to
long-term employees. An Administrative Law Judge
concluded that SW General had committed unfair labor
practices, and the NLRB agreed. 360 N. L. R. B. 109
(2014).
Cite as: 580 U. S. ____ (2017) 7
Opinion of the Court
SW General filed a petition for review in the United
States Court of Appeals for the District of Columbia Cir-
cuit. It argued that the unfair labor practices complaint
was invalid because, under subsection (b)(1) of the FVRA,
Solomon could not legally perform the duties of general
counsel after having been nominated to fill that position.
The NLRB defended Solomon’s actions. It contended that
subsection (b)(1) applies only to first assistants who auto-
matically assume acting duties under subsection (a)(1),
not to acting officers who, like Solomon, serve under (a)(2)
or (a)(3).
The Court of Appeals granted SW General’s petition for
review and vacated the Board’s order. It reasoned that
“the text of subsection (b)(1) squarely supports” the con-
clusion that the provision’s restriction on nominees serv-
ing as acting officers “applies to all acting officers, no
matter whether they serve pursuant to subsection (a)(1),
(a)(2) or (a)(3).” 796 F.3d 67, 78 (CADC 2015). As a re-
sult, Solomon became “ineligible to serve as Acting Gen-
eral Counsel once the President nominated him to be
General Counsel.” Id., at 72.2 We granted certiorari, 579
U. S. ___ (2016), and now affirm.
——————
2 The FVRA exempts “the General Counsel of the National Labor
Relations Board” from the general rule that actions taken in violation
of the FVRA are void ab initio. 5 U.S. C. §3348(e)(1). The Court of
Appeals “assume[d] that section 3348(e)(1) renders the actions of an
improperly serving Acting General Counsel voidable” and rejected the
Board’s argument against voiding Solomon’s actions. 796 F.3d, at 79–
82. The Board did not seek certiorari on this issue, so we do not con-
sider it.
In addition, the unfair labor practice complaint in this case was
issued after the Senate had returned Solomon’s nomination the first
time but before the President had renominated him to the same posi-
tion. In the proceedings below, the Board did not argue that this
timing made any difference, and the court assumed it had no bearing
on the proper application of the FVRA to this case. Id., at 72, n. 3. We
proceed on the same assumption.
8 N.L.R.B. v. SW GENERAL, INC.
Opinion of the Court
II
Subsection (b)(1) of the FVRA prevents a person who
has been nominated for a vacant PAS office from perform-
ing the duties of that office in an acting capacity. In full,
it states:
“(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 death, resignation, or beginning of inability to
serve, 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 of-
fice of such officer for less than 90 days; and
(B) the President submits a nomination of such per-
son to the Senate for appointment to such office.”
Subsection (b)(2) adds that “[p]aragraph (1) shall not
apply” to a person serving in a first assistant position that
itself requires the advice and consent of the Senate.
We conclude that the prohibition in subsection (b)(1)
applies to anyone performing acting service under the
FVRA. It is not, as the Board contends, limited to first
assistants performing acting service under subsection
(a)(1). The text of the prohibition extends to any “person”
who serves “as an acting officer . . . under this section,” not
just to “first assistants” serving under subsection (a)(1).
The phrase “[n]otwithstanding subsection (a)(1)” does not
limit the reach of (b)(1), but instead clarifies that the
prohibition applies even when it conflicts with the default
rule that first assistants shall perform acting duties.
A
1
Our analysis of subsection (b)(1) begins with its text.
Cite as: 580 U. S. ____ (2017) 9
Opinion of the Court
Subsection (b)(1) applies to any “person” and prohibits
service “as an acting officer for an office under this sec-
tion.” The key words are “person” and “section.” They
clearly indicate that (b)(1) applies to all acting officers
under §3345, regardless of the means of appointment.
Start with “person.” The word has a naturally expan-
sive meaning that can encompass anyone who performs
acting duties under the FVRA. See Pfizer Inc. v. Govern-
ment of India, 434 U.S. 308, 312 (1978). Important as
they may be, first assistants are not the only “person[s]” of
the bunch.
Now add “under this section.” The language clarifies
that subsection (b)(1) applies to all persons serving under
§3345. Congress often drafts statutes with hierarchical
schemes—section, subsection, paragraph, and on down the
line. See Koons Buick Pontiac GMC, Inc. v. Nigh, 543
U.S. 50, 60–61 (2004); L. Filson, The Legislative Drafter’s
Desk Reference 222 (1992). Congress used that structure
in the FVRA and relied on it to make precise cross-
references. When Congress wanted to refer only to a
particular subsection or paragraph, it said so. See, e.g.,
§3346(a)(2) (“subsection (b)”); §3346(b)(2) (“paragraph
(1)”). But in (b)(1) Congress referred to the entire sec-
tion—§3345—which subsumes all of the ways a person
may become an acting officer.
The rest of the FVRA uses the pairing of “person” and
“section” the same way. Section 3346, for example, speci-
fies how long “the person serving as an acting officer as
described under section 3345 may serve in the office.”
(Emphasis added.) And §3348(d)(1) describes the conse-
quences of noncompliance with the FVRA by referring to
the actions “taken by any person who is not acting under
section 3345, 3346, or 3347.” (Emphasis added.) No one
disputes that both provisions apply to anyone serving as
an acting officer under the FVRA, not just first assistants
serving under subsection (a)(1).
10 N.L.R.B. v. SW GENERAL, INC.
Opinion of the Court
Had Congress intended subsection (b)(1) to apply only to
first assistants acting under (a)(1), it could easily have
chosen clearer language. Replacing “person” with “first
assistant” would have done the trick. So too would replac-
ing “under this section” with “under subsection (a)(1).”
“The fact that [Congress] did not adopt [either] readily
available and apparent alternative strongly supports” the
conclusion that subsection (b)(1) applies to any acting
officer appointed under any provision within §3345.
Knight v. Commissioner, 552 U.S. 181, 188 (2008).
The dependent clause at the beginning of subsection
(b)(1)—“[n]otwithstanding subsection (a)(1)”—confirms
that the prohibition on acting service applies even when it
conflicts with the default rule that the first assistant shall
perform acting duties. The ordinary meaning of “notwith-
standing” is “in spite of,” or “without prevention or ob-
struction from or by.” Webster’s Third New International
Dictionary 1545 (1986); Black’s Law Dictionary 1091 (7th
ed. 1999) (“Despite; in spite of ”). In statutes, the word
“shows which provision prevails in the event of a clash.”
A. Scalia & B. Garner, Reading Law: The Interpretation of
Legal Texts 126–127 (2012). Subsection (a)(1) sets the
rule that first assistants “shall perform” the vacant office’s
“functions and duties . . . in an acting capacity.” But the
“notwithstanding” clause in subsection (b)(1) means that,
even if a first assistant is serving as an acting officer
under this statutory mandate, he must cease that service
if the President nominates him to fill the vacant PAS
office. That subsection (b)(1) also applies to acting officers
serving at the President’s behest is already clear from the
broad text of the independent clause—they are all “per-
son[s]” serving “under this section.”
2
The Board takes a different view of the phrase
“[n]otwithstanding subsection (a)(1).” It begins by noting
Cite as: 580 U. S. ____ (2017) 11
Opinion of the Court
that §3345(a) uses three different subsections to “create
three separate paths for becoming an acting official.”
Reply Brief 2. The prohibition in subsection (b)(1), the
Board continues, “applies ‘[n]otwithstanding’ only one of
these subsections—‘subsection (a)(1).’ ” Ibid. In the
Board’s view, singling out subsection (a)(1) carries a nega-
tive implication: that “Congress did not intend Subsection
(b)(1) to override the alternative mechanisms for acting
service in Subsections (a)(2) and (a)(3).” Id., at 3.
We disagree. The Board relies on the “interpretive
canon, expressio unius est exclusio alterius, ‘expressing one
item of [an] associated group or series excludes another
left unmentioned.’ ” Chevron U. S. A. Inc. v. Echazabal,
536 U.S. 73, 80 (2002) (quoting United States v. Vonn, 535
U.S. 55, 65 (2002)). If a sign at the entrance to a zoo says
“come see the elephant, lion, hippo, and giraffe,” and a
temporary sign is added saying “the giraffe is sick,” you
would reasonably assume that the others are in good
health.
“The force of any negative implication, however, de-
pends on context.” Marx v. General Revenue Corp., 568
U. S. ___, ___ (2013) (slip op., at 9). The expressio unius
canon applies only when “circumstances support[ ] a sen-
sible inference that the term left out must have been
meant to be excluded.” Echazabal, 536 U.S., at 81. A
“notwithstanding” clause does not naturally give rise to
such an inference; it just shows which of two or more
provisions prevails in the event of a conflict. Such a clause
confirms rather than constrains breadth. Singling out one
potential conflict might suggest that Congress thought the
conflict was particularly difficult to resolve, or was quite
likely to arise. But doing so generally does not imply
anything about other, unaddressed conflicts, much less
that they should be resolved in the opposite manner.
Suppose a radio station announces: “We play your favor-
ite hits from the ’60s, ’70s, and ’80s. Notwithstanding the
12 N.L.R.B. v. SW GENERAL, INC.
Opinion of the Court
fact that we play hits from the ’60s, we do not play music
by British bands.” You would not tune in expecting to
hear the 1970s British band “The Clash” any more than
the 1960s “Beatles.” The station, after all, has announced
that “we do not play music by British bands.” The “not-
withstanding” clause just establishes that this applies
even to music from the ’60s, when British bands were
prominently featured on the charts. No one, however,
would think the station singled out the ’60s to convey
implicitly that its categorical statement “we do not play
music by British bands” actually did not apply to the ’70s
and ’80s.
Drawing a negative inference from the “notwithstand-
ing” clause in subsection (b)(1) is similarly inapt. Without
that clause, subsection (b)(1) plainly would apply to all
persons serving as acting officers under §3345(a). Adding
“notwithstanding subsection (a)(1)” makes sense because
(a)(1) conflicts with (b)(1) in a unique manner. The former
is mandatory and self-executing: The first assistant “shall
perform” acting duties. The latter, by contrast, speaks to
who “may not” be an acting officer. So if a vacancy arises
and the President nominates the first assistant to fill the
position, (a)(1) says the first assistant “shall perform” the
duties of that office in an acting capacity while the nomi-
nation is pending, and (b)(1) says he “may not.” The “not-
withstanding” clause clarifies that the language of (a)(1)
does not prevail if that conflict occurs.
Compare the mandatory language of subsection (a)(1) to
(a)(2) and (a)(3). People appointed under those provisions
are just as much acting officers as first assistants who
assume the role. But there is no freestanding directive
that they perform acting duties; subsections (a)(2) and
(a)(3) just say that the President “may direct” them to do
so. The natural inference, then, is that Congress left these
provisions out of the “notwithstanding” clause because
they are different from subsection (a)(1), not to exempt
Cite as: 580 U. S. ____ (2017) 13
Opinion of the Court
from the broad prohibition in subsection (b)(1) those offic-
ers serving under (a)(2) and (a)(3).
Indeed, “notwithstanding” is used the same way in other
parts of §3345. Subsections (a)(2) and (a)(3) are each
preceded by the phrase “notwithstanding paragraph (1).”
The phrase recognizes that subsection (a)(1) is unique, and
resolves the potential conflict between the mandatory
“shall perform” in that provision and the permissive “may
direct” in (a)(2) and (a)(3). But it implies nothing about
other potential conflicts that may arise in the statutory
scheme. In subsection (b)(1), it works the same way: The
“notwithstanding” clause simply shows that (b)(1) over-
rides (a)(1), and nothing more.
Step back from the Board’s focus on “notwithstanding”
and another problem appears: Its interpretation of subsec-
tion (b)(1) makes a mess of (b)(2). Subsection (b)(2) speci-
fies that (b)(1) “shall not apply to any person” if (A) that
person “is serving as the first assistant”; (B) the first
assistant position is itself a PAS office; and (C) “the Senate
has approved the appointment of such person” to that
office.
The Board’s interpretation makes the first requirement
superfluous, a result we typically try to avoid. Williams v.
Taylor, 529 U.S. 362, 404 (2000) (“It is . . . a cardinal
principle of statutory construction that we must give
effect, if possible, to every clause and word of a statute.”
(internal quotation marks omitted)). If subsection (b)(1)
applied only to first assistants, there would be no need to
state the requirement in (b)(2)(A) that “such person is
serving as the first assistant.” The Board proposes that
Congress did so for clarity, but the same could be said of
most superfluous language.
The Board and the dissent counter that applying the
prohibition in subsection (b)(1) to anyone performing
acting service under §3345(a) has its own problem: Doing
so would also require applying it to §3345(c)(1), which
14 N.L.R.B. v. SW GENERAL, INC.
Opinion of the Court
“would nullify” that provision. Reply Brief 9. The dissent
deems this “no way to read a statute.” Post, at 6.
We agree, and it is not the way we read it. Under our
reading, subsection (b)(1) has no effect on (c)(1). Subsec-
tion (b)(1) addresses nominations generally, prohibiting
any person who has been nominated to fill any vacant
office from performing that office’s duties in an acting
capacity. Subsection (c)(1) speaks to a specific nomination
scenario: When a person is “nominated by the President
for reappointment for an additional term to the same office
. . . without a break in service.” In this particular situa-
tion, the FVRA authorizes the nominee “to continue to
serve in that office.” §3345(c). “[I]t is a commonplace of
statutory construction that the specific governs the gen-
eral.” RadLAX Gateway Hotel, LLC v. Amalgamated
Bank, 566 U.S. 639, 645 (2012). The general prohibition
on acting service by nominees yields to the more specific
authorization allowing officers up for reappointment to
remain at their posts. Applying subsection (b)(1) to
§3345(a) hardly compels a different result.
The text of subsection (b)(1) is clear: Subject to one
narrow exception, it prohibits anyone who has been nomi-
nated to fill a vacant PAS office from performing the du-
ties of that office in an acting capacity, regardless of
whether the acting officer was appointed under subsection
(a)(1), (a)(2), or (a)(3). It is not limited to first assistants
who automatically assume acting duties under (a)(1).
B
The Board contends that legislative history, purpose,
and post-enactment practice uniformly show that subsec-
tion (b)(1) applies only to first assistants. The text is
clear, so we need not consider this extra-textual evidence.
See State Farm Fire & Casualty Co. v. United States
ex rel. Rigsby, 580 U. S. ___ (2016) (slip op., at 9). In any
event, the Board’s evidence is not compelling.
Cite as: 580 U. S. ____ (2017) 15
Opinion of the Court
The Board argues that subsection (b)(1) was designed to
serve a specific purpose: preventing the President from
having his nominee serve as an acting officer by making
him first assistant after (or right before) a vacancy arises.
Brief for Petitioner 38. The original draft of the FVRA
authorized first assistants and PAS officers to perform
acting service. Subsection (b) of that draft provided that if
a first assistant was nominated to fill the vacant office, he
could not perform that office’s duties in an acting capacity
unless he had been the first assistant for at least 180 days
before the vacancy. Several Senators thought the FVRA
too restrictive. They asked to add senior agency officials
to the list of potential acting officers and to shorten the
180-day length-of-service requirement in subsection (b).
Their requests, the Board says, were granted; the final
version of the FVRA included subsection (a)(3) for senior
employees and shortened the length-of-service require-
ment to 90 days. There was no intent to extend the pro-
hibition in subsection (b) beyond first assistants. Id., at
45–46.
The glitch in this argument is of course the text of sub-
section (b)(1). Congress did amend the statute to allow
senior employees to become acting officers under subsec-
tion (a)(3). The only substantive change that was requested
in (b) was to reduce the length-of-service requirement.
Congress could have done that with a few tweaks to the
original version of subsection (b). Instead, Congress went
further: It also removed language that expressly limited
subsection (b) to first assistants. And it added a provi-
sion—subsection (b)(2)—that makes sense only if (b)(1)
applies to all acting officers. In short, Congress took a
provision that explicitly applied only to first assistants
and turned it into one that applies to all acting officers.
The Board protests that Congress would not have ex-
panded the prohibition on nominees serving as acting
officers after Senators asked to give the President more
16 N.L.R.B. v. SW GENERAL, INC.
Opinion of the Court
flexibility. See Brief for Petitioner 45–46. That certain
Senators made specific demands, however, does not mean
that they got exactly what they wanted. Passing a law
often requires compromise, where even the most firm
public demands bend to competing interests. See Rags-
dale v. Wolverine World Wide, Inc., 535 U.S. 81, 93–94
(2002). What Congress ultimately agrees on is the text
that it enacts, not the preferences expressed by certain
legislators. See Oncale v. Sundowner Offshore Services,
Inc., 523 U.S. 75, 79 (1998) (“[I]t is ultimately the provi-
sions of our laws rather than the principal concerns of our
legislators by which we are governed.”).
Compromise is precisely what happened here: “[A]
period of intense negotiations” took place after Senators
demanded changes to the original draft of the FVRA, and
the final bill was “a compromise measure.” Rosenberg 9.
The legislation as passed did expand the pool of individu-
als the President could appoint as acting officers, by add-
ing senior employees in subsection (a)(3). But it also
expanded the scope of the limitation on acting service in
(b)(1), by dropping the language making (b)(1) applicable
only to first assistants.
The Board contends that this compromise must not have
happened because Senator Thompson, one of the sponsors
of the FVRA, said that subsection (b)(1) “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. 27496
(1998). But Senator Byrd—the very next speaker—offered
a contradictory account: A nominee may not “serve as an
acting officer” if “he is not the first assistant” or “has been
the first assistant for less than 90 . . . days, and has not
been confirmed for the position.” Id., at 27498. This is a
good example of why floor statements by individual legis-
lators rank among the least illuminating forms of legisla-
tive history. See Milner v. Department of Navy, 562 U. S.
Cite as: 580 U. S. ____ (2017) 17
Opinion of the Court
562, 572 (2011) (“Those of us who make use of legislative
history believe that clear evidence of congressional intent
may illuminate ambiguous text. We will not take the
opposite tack of allowing ambiguous legislative history to
muddy clear statutory language.”).
Finally, the Board supports its interpretation with post-
enactment practice. It notes that the Office of Legal
Counsel and the Government Accountability Office have
issued guidance construing subsection (b)(1) to apply only
to first assistants. And three Presidents have, without
congressional objection, submitted the nominations of 112
individuals who were serving as acting officers under
subsections (a)(2) and (a)(3). The Board contends that this
“historical practice” is entitled to “significant weight”
because the FVRA “concern[s] the allocation of power
between two elected branches of Government.” Brief for
Petitioner 49 (quoting NLRB v. Noel Canning, 573 U. S.
___, ___–___ (2014) (slip op., at 6–7); internal quotation
marks omitted).
“[H]istorical practice” is too grand a title for the Board’s
evidence. The FVRA was not enacted until 1998, and the
112 nominations that the Board cites make up less than
two percent of the thousands of nominations to positions
in executive agencies that the Senate has considered in
the years since its passage. Even the guidance documents
the Board cites paid the matter little attention; both made
conclusory statements about subsection (b)(1), with no
analysis.
In this context, Congress’s failure to speak up does not
fairly imply that it has acquiesced in the Board’s interpre-
tation. See Zuber v. Allen, 396 U.S. 168, 185, n. 21
(1969); Alexander v. Sandoval, 532 U.S. 275, 292 (2001).
The Senate may not have noticed that certain nominees
were serving as acting officers in violation of the FVRA, or
it may have chosen not to reject a qualified candidate just
to make a point about compliance with the statute. Either
18 N.L.R.B. v. SW GENERAL, INC.
Opinion of the Court
is at least as plausible as the theory that the Legislature’s
inaction reflects considered acceptance of the Executive’s
practice.
Our decision in Noel Canning—the chief opinion on
which the Board relies—is a sharp contrast. That case
dealt with the President’s constitutional authority under
the Recess Appointments Clause, an issue that has at-
tracted intense attention and written analysis from Presi-
dents, Attorneys General, and the Senate. 573 U. S., at
___–___ (slip op., at 22–32). The voluminous historical
record dated back to “the beginning of the Republic,” and
included “thousands of intra-session recess appointments.”
Id., at ___, ___ (slip op., at 8, 12). That the chronicle of the
Recess Appointments Clause weighed heavily in Noel
Canning offers no support to the Board here.
III
Applying the FVRA to this case is straightforward.
Solomon was appointed as acting general counsel under
subsection (a)(3). Once the President submitted his nomi-
nation to fill that position in a permanent capacity, sub-
section (b)(1) prohibited him from continuing his acting
service. This does not mean that the duties of general
counsel to the NLRB needed to go unperformed; the Presi-
dent could have appointed another person to serve as the
acting officer in Solomon’s place. And he had a wide array
of individuals to choose from: any one of the approximately
250 senior NLRB employees or the hundreds of individu-
als in PAS positions throughout the Government. The
President, however, did not do so, and Solomon’s contin-
ued service violated the FVRA. Accordingly, the judgment
of the Court of Appeals is affirmed.
It is so ordered.
Cite as: 580 U. S. ____ (2017) 19
Opinion
Appendix of the of
to opinion Court
the Court
APPENDIX
Section 3345 of the FVRA provides:
“(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 Sen-
ate, 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 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 posi-
tion 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.
(b)(1) Notwithstanding subsection (a)(1), a person may
not serve as an acting officer for an office under this sec-
tion, if—
20 N.L.R.B. v. SW GENERAL, INC.
Opinion
Appendix of the of
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the Court
(A) during the 365-day period preceding the date of the
death, resignation, or beginning of inability to serve, 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
(B) the President submits a nomination of such person
to the Senate for appointment to such office.
(2) Paragraph (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.
(c)(1) Notwithstanding subsection (a)(1), the President
(and only the President) may direct an officer who is nom-
inated by the President for reappointment for an office in
an Executive department without a break in service, to
continue to serve in that office subject to the time limita-
tions in section 3346, until such time as the Senate has
acted to confirm or reject the nomination, notwithstanding
adjournment sine die.
(2) For purposes of this section and sections 3346, 3347,
3348, 3349, 3349a, and 3349d, the expiration of a term of
office is an inability to perform the functions and duties of
such office.”
Cite as: 580 U. S. ____ (2017) 1
THOMAS, J., concurring
SUPREME COURT OF THE UNITED STATES
_________________
No. 15–1251
_________________
NATIONAL LABOR RELATIONS BOARD, PETITIONER
v. SW GENERAL, INC., DBA SOUTHWEST
AMBULANCE
ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT
[March 21, 2017]
JUSTICE THOMAS, concurring.
I join the opinion of the Court because it correctly inter-
prets the Federal Vacancies Reform Act of 1998 (FVRA), 5
U.S. C. §3345 et seq. The dissent’s conclusion that the
FVRA authorized the appointment in this case, however,
implicates an important constitutional question that the
Court’s interpretation does not: Whether directing Lafe
Solomon to serve as acting general counsel of the National
Labor Relations Board (NLRB or Board), without the
advice and consent of the Senate, complied with the Con-
stitution. I write separately to explain my view that
the Appointments Clause likely prohibited Solomon’s
appointment.
I
The Appointments Clause prescribes the exclusive
process by which the President may appoint “officers of
the United States.” United States v. Germaine, 99 U.S.
508, 510 (1879); accord, Buckley v. Valeo, 424 U.S. 1, 132
(1976) (per curiam) (“[A]ll officers of the United States are
to be appointed in accordance with the Clause . . . . No
class or type of officer is excluded because of its special
functions”). It provides that the President
“shall nominate, and by and with the Advice and Con-
2 N.L.R.B. v. SW GENERAL, INC.
THOMAS, J., concurring
sent of the Senate, shall appoint Ambassadors, other
public Ministers and Consuls, Judges of the supreme
Court, and all other Officers of the United States,
whose Appointments are not herein otherwise pro-
vided for, and which shall be established by Law: but
the Congress may by Law vest the Appointment of such
inferior Officers, as they think proper, in the Presi-
dent alone, in the Courts of Law, or in the Heads of
Departments.” U. S. Const., Art. II, §2, cl. 2.
“[F]or purposes of appointment,” the Clause divides all
officers into two classes—“inferior officers” and noninferior
officers, which we have long denominated “principal”
officers. Germaine, supra, at 509, 511. Principal officers
must be appointed by the President by and with the advice
and consent of the Senate. See Edmond v. United States,
520 U.S. 651, 660 (1997). That process “is also the default
manner of appointment for inferior officers.” Ibid. But
the Clause provides a limited exception for the appoint-
ment of inferior officers: Congress may “by Law” authorize
the President, the head of an executive department, or a
court of law to appoint inferior officers without the advice
and consent of the Senate. Ibid.
The FVRA governs the process by which the President
may temporarily fill a vacancy in an Executive Branch
office normally occupied by an officer of the United States.
As relevant in this case, when a vacancy arises, the Presi-
dent may “direct” an official to “perform the functions and
duties of the office temporarily.” 5 U.S. C. §§3345(a)(2),
(3). That official may be an officer previously appointed by
the President and confirmed by the Senate to any office, or
certain high-ranking employees of the agency in which the
vacancy arose. Ibid. The FVRA does not, however, re-
quire the President to seek the advice and consent of the
Senate before directing the official to perform the func-
tions of the vacant office.
Cite as: 580 U. S. ____ (2017) 3
THOMAS, J., concurring
When the President “direct[s]” someone to serve as an
officer pursuant to the FVRA, he is “appoint[ing]” that
person as an “officer of the United States” within the
meaning of the Appointments Clause. Around the time of
the framing, the verb “appoint” meant “[t]o establish
anything by decree,” 1 S. Johnson, A Dictionary of the
English Language (def. 3) (6th ed. 1785); T. Sheridan, A
Complete Dictionary of the English Language (To Appoint)
(6th ed. 1796), or “[t]o allot, assign, or designate,” 1 N.
Webster, An American Dictionary of the English Lan-
guage (def. 3) (1828). When the President “direct[s]” a
person to serve as an acting officer, he is “assign[ing]” or
“designat[ing]” that person to serve as an officer.
The FVRA authorizes the President to appoint both
inferior and principal officers without first obtaining the
advice and consent of the Senate. Appointing inferior
officers in this manner raises no constitutional problems.
That is because the Appointments Clause authorizes
Congress to enact “Law[s],” like the FVRA, “vest[ing] the
Appointment of such inferior Officers . . . in the President
alone.” Appointing principal officers under the FVRA,
however, raises grave constitutional concerns because the
Appointments Clause forbids the President to appoint
principal officers without the advice and consent of the
Senate.
II
Because we interpret the FVRA to forbid Solomon’s
appointment in this case, we need not confront these
concerns. But the dissent’s contrary interpretation neces-
sarily raises the question whether that appointment com-
plied with the requirements of the Appointments Clause.
That inquiry turns on two considerations: (1) whether the
general counsel of the NLRB is an “Officer of the United
States” within the meaning of the Appointments Clause
and, if so, (2) whether he is a principal officer who can be
4 N.L.R.B. v. SW GENERAL, INC.
THOMAS, J., concurring
appointed only by and with the advice and consent of the
Senate.1 In my view, the general counsel plainly is an
officer of the United States. I also think he is likely a
principal officer.
A
As an initial matter, the NLRB’s general counsel is an
“officer of the United States” whose appointment is gov-
erned by the Appointments Clause. “Extensive evidence
suggests” that, at the time of the framing, this phrase was
understood to encompass “all federal officials with respon-
sibility for an ongoing statutory duty.” Mascott, Who
are “Officers of the United States”? 70 Stan. L. Rev.
(forthcoming 2017) (manuscript, at 74, online at
https://ssrn.com/abstract=2918952 (as last visited Mar. 17,
2017)); see also Officers of the United States Within the
Meaning of the Appointments Clause, 31 Op. O. L. C. 73,
77 (2007) (an officer of the United States was originally
understood to be an official who “hold[s] a position with
delegated sovereign authority” and whose office was “ ‘con-
tinuing,’ ” rather than “ ‘incidental’ ” or “ad hoc”). And this
Court has previously held that an “Officer of the United
States” is “any appointee exercising significant authority
pursuant to the laws of the United States.” Buckley, 424
U.S., at 126; see also Free Enterprise Fund v. Public
Company Accounting Oversight Bd., 561 U.S. 477, 539–
540 (2010) (BREYER, J., dissenting) (collecting cases ad-
dressing who counts as an officer).
——————
1 ThatSolomon was appointed “temporarily” to serve as acting gen-
eral counsel does not change the analysis. I do not think the structural
protections of the Appointments Clause can be avoided based on such
trivial distinctions. Solomon served for more than three years in an
office limited by statute to a 4-year term, and he exercised all of the
statutory duties of that office. 29 U.S. C. §153(d). There was thus
nothing “special and temporary” about Solomon’s appointment. United
States v. Eaton, 169 U.S. 331, 343 (1898).
Cite as: 580 U. S. ____ (2017) 5
THOMAS, J., concurring
The general counsel is an officer of the United States
under both the probable original meaning of the Clause
and this Court’s precedents. He is charged by statute with
carrying out significant duties. He “exercise[s] general
supervision over all attorneys employed by the Board . . .
and over the officers and employees in the regional of-
fices.” 29 U.S. C. §153(d). He has “final authority, on behalf
of the Board, in respect of the investigation of charges and
issuances of complaints . . . and in respect of the prosecu-
tion of such complaints before the Board.” Ibid. The
general counsel is effectively the Nation’s labor-law prose-
cutor and is therefore an officer of the United States. See
Edmond, 520 U.S., at 666 (treating the general counsel of
the Department of Transportation as an officer).
B
Although a closer question, the general counsel also is
likely a principal officer. In Edmond, we explained that
an “ ‘inferior’ ” officer is one “whose work is directed and
supervised at some level by others who were appointed by
Presidential nomination with the advice and consent of
the Senate.” Id., at 663. That view is consistent with the
original meaning of the term and with the practices of the
early Congresses. See id., at 663–664; Morrison v. Olson,
487 U.S. 654, 719–721 (1988) (Scalia, J., dissenting); see
also, e.g., Sheridan, supra, (Inferiour); 1 Johnson, supra,
(Inferiour (def. 2)); 1 Webster, supra, (Inferior).2 By con-
——————
2 In Morrison, the Court used a multifactor test to determine whether
an independent counsel under the Ethics in Government Act of 1978,
28 U.S. C. §§49, 591 (1982 ed., Supp. V), was an “Inferior officer.” 487
U.S., at 671–672. Although we did not explicitly overrule Morrison in
Edmond, it is difficult to see how Morrison’s nebulous approach sur-
vived our opinion in Edmond. Edmond is also consistent with the
Constitution’s original meaning and therefore should guide our view of
the principal-inferior distinction. See Calabresi & Lawson, The Uni-
tary Executive, Jurisdiction Stripping, and the Hamdan Opinions: A
Textualist Response to Justice Scalia, 107 Colum. L. Rev. 1002, 1018–
6 N.L.R.B. v. SW GENERAL, INC.
THOMAS, J., concurring
trast, a principal officer is one who has no superior other
than the President.
The general counsel of the NLRB appears to satisfy that
definition. Before 1947, the Board “controlled not only the
filing of complaints, but their prosecution and adjudica-
tion” as well. NLRB v. Food & Commercial Workers, 484
U.S. 112, 117 (1987). The Labor Management Relations
Act, 1947, ch. 120, 61 Stat. 136, however, “effected an
important change” in the NLRB’s structure by “sepa-
rat[ing] the prosecuting from the adjudicating function, to
place the former in the General Counsel, and to make him
an independent official appointed by the President.”
Lewis v. NLRB, 357 U.S. 10, 16, n. 10 (1958). Congress
thus separated the NLRB into “two independent branches,”
Food & Commercial Workers, 484 U.S., at 129, and
made the general counsel “independent of the Board’s
supervision and review,” id., at 118; see also id., at 129
(Congress “decided to place the General Counsel within
the agency, but to make the office independent of the
Board’s authority”). Moreover, the general counsel’s pros-
ecutorial decisions are unreviewable by either the Board
or the Judiciary. NLRB v. Sears, Roebuck & Co., 421 U.S.
132, 138 (1975); Vaca v. Sipes, 386 U.S. 171, 182 (1967).
Although the Board has power to define some of the
general counsel’s duties, see 29 U.S. C. §153(d), and the
general counsel represents the Board in certain judicial
proceedings, see Higgins, Labor Czars—Commissars—
Keeping Women in the Kitchen—The Purpose and Effects
of the Administrative Changes Made by Taft-Hartley, 47
Cath. U. L. Rev. 941, 967 (1998), the statute does not give
the Board the power to remove him or otherwise generally
to control his activities, see Edmond, supra, at 664 (“The
power to remove officers, we have recognized, is a powerful
tool for control”); see also Free Enterprise Fund, 561 U. S.,
——————
1019 (2007).
Cite as: 580 U. S. ____ (2017) 7
THOMAS, J., concurring
at 510 (holding that executive officials were inferior offic-
ers in large part because they were subject to a superior’s
removal). Because it appears that the general counsel
answers to no officer inferior to the President, he is likely
a principal officer.3 Accordingly, the President likely could
not lawfully have appointed Solomon to serve in that
role without first obtaining the advice and consent of the
Senate.
III
I recognize that the “burdens on governmental processes”
that the Appointments Clause imposes may “often seem
clumsy, inefficient, even unworkable.” INS v. Chadha,
462 U.S. 919, 959 (1983). Granting the President unilat-
eral power to fill vacancies in high offices might contribute
to more efficient Government. But the Appointments
Clause is not an empty formality. Although the
Framers recognized the potential value of leaving the
selection of officers to “one man of discernment” rather
than to a fractious, multimember body, see The Federalist
No. 76, p. 510 (J. Cooke ed., 1961), they also recognized
the serious risk for abuse and corruption posed by permit-
ting one person to fill every office in the Government, see
id., at 513; 3 J. Story, Commentaries on the Constitution
of the United States §1524, p. 376 (1833). The Framers
“had lived under a form of government that permitted
arbitrary governmental acts to go unchecked,” Chadha,
supra, at 959, and they knew that liberty could be pre-
served only by ensuring that the powers of Government
would never be consolidated in one body, see The Federal-
ist No. 51, p. 348. They thus empowered the Senate to
confirm principal officers on the view that “the necessity of
its co-operation in the business of appointments will be a
——————
3 I think the general counsel would likely qualify as a principal officer
even under Morrison v. Olson, 487 U.S. 654 (1988). See id., at 671–
672.
8 N.L.R.B. v. SW GENERAL, INC.
THOMAS, J., concurring
considerable and salutary restraint upon the conduct of ”
the President. The Federalist No. 76, at 514; 3 Story,
supra, §1525, at 376–377. We cannot cast aside the sepa-
ration of powers and the Appointments Clause’s important
check on executive power for the sake of administrative
convenience or efficiency. See Bowsher v. Synar, 478 U.S.
714, 736 (1986).
That the Senate voluntarily relinquished its advice-and-
consent power in the FVRA does not make this end-run
around the Appointments Clause constitutional. The
Clause, like all of the Constitution’s structural provisions,
“is designed first and foremost not to look after the inter-
ests of the respective branches, but to protect individual
liberty.” NLRB v. Noel Canning, 573 U. S. ___, ___ (2014)
(Scalia, J., concurring in judgment) (slip op., at 3) (internal
quotation marks and bracket omitted). It is therefore
irrelevant that “the encroached-upon branch approves the
encroachment.” Free Enterprise Fund, supra, at 497
(internal quotation marks omitted). “Neither Congress
nor the Executive can agree to waive” the structural provi-
sions of the Constitution any more than they could agree
to disregard an enumerated right. Freytag v. Commis-
sioner, 501 U.S. 868, 880 (1991). The Judicial Branch
must be most vigilant in guarding the separation between
the political powers precisely when those powers collude to
avoid the structural constraints of our Constitution.
* * *
Courts inevitably will be called upon to determine
whether the Constitution permits the appointment of
principal officers pursuant to the FVRA without Senate
confirmation. But here, the proper interpretation of the
FVRA bars the appointment.
Cite as: 580 U. S. ____ (2017) 1
SOTOMAYOR, J., dissenting
SUPREME COURT OF THE UNITED STATES
_________________
No. 15–1251
_________________
NATIONAL LABOR RELATIONS BOARD, PETITIONER
v. SW GENERAL, INC., DBA SOUTHWEST
AMBULANCE
ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT
[March 21, 2017]
JUSTICE SOTOMAYOR, with whom JUSTICE GINSBURG
joins, dissenting.
Many high-level offices in the Executive Branch may be
filled only by a person who has been nominated to the
position by the President and confirmed by the Senate.
The Federal Vacancies Reform Act of 1998 (FVRA) cedes
the Senate’s confirmation authority, partially and on a
temporary basis, to allow executive agencies to continue to
function when one of those high-level offices becomes
vacant. It authorizes certain categories of officials to
perform the duties of vacant offices on an acting basis.
One of its provisions pulls back that authorization when
an official has been nominated to fill the vacant office on a
permanent basis. The scope of that provision is at issue
here. I agree with the Court that the provision applies to
first assistants to a vacant office who serve as acting
officials automatically, by operation of the FVRA. I dis-
agree with the Court’s conclusion that the provision also
applies to other officials who may serve as acting officials
if the President directs them to serve in that capacity.
The Court gives the provision a broader reach than the
text can bear with no support from the history of, or prac-
tice under, the FVRA. I respectfully dissent.
2 N.L.R.B. v. SW GENERAL, INC.
SOTOMAYOR, J., dissenting
I
As the Court explains, the FVRA governs vacancies in
offices held by persons “whose appointment to office is
required to be made by the President, by and with the
advice and consent of the Senate.” 5 U.S. C. §3345(a).
These are known as “PAS” offices. When an official in a
PAS office “dies, resigns, or is otherwise unable to perform
the functions and duties of the office” the FVRA steps in.
Ibid.; see also §3345(c)(2) (an “expiration of a term of
office” makes an official unable “to perform the functions
and duties” of the office).
Section 3345 of the FVRA authorizes four categories of
officials to perform the duties of a vacant office. Subsec-
tion (a)(1) contains a default rule: The “first assistant to
the office” automatically assumes the vacant office and
performs “the functions and duties of the office temporarily
in an acting capacity.” §3345(a)(1). Subsections (a)(2),
(a)(3), and (c)(1) authorize the President to override that
default rule. The President may direct a person already
confirmed by the Senate to a PAS office to serve as the
acting officer. See §3345(a)(2). The President may direct
certain senior officials in the same agency to serve as the
acting officer. See §3345(a)(3). Or the President may
direct a person whose Senate-confirmed term in the office
has expired and who has been nominated to a subsequent
term in that same office to serve as the acting officer until
the Senate acts on the nomination. See §3345(c)(1).
Subsection (b)(1) takes away this authorization in a
specific situation. It provides that, “[n]otwithstanding
subsection (a)(1)”—the first assistant default rule—a
person may not serve as an acting official while nominated
to fill the office if the person was not the first assistant to
the office for at least 90 of the 365 days preceding the
vacancy. §3345(b)(1). The prohibition in subsection (b)(1)
does not apply to a person serving as the Senate-confirmed
first assistant to the vacant office. See §3345(b)(2).
Cite as: 580 U. S. ____ (2017) 3
SOTOMAYOR, J., dissenting
II
In my view, the text, purpose, and history of the FVRA
make clear that the prohibition in subsection (b)(1) applies
only to a first assistant who performs the duties of a va-
cant office under subsection (a)(1).
A
As the Court observes, subsection (b)(1) contains some
potentially broad language. The provision specifies when
“a person may not serve as an acting officer for an office
under this section”—that is, §3345. The words “person”
and “this section,” taken in isolation, could signal that the
prohibition applies to subsections (a)(1), (a)(2), (a)(3), and
(c)(1) and thus covers all acting officials. But context
matters. And here, the context cabins those words and
gives subsection (b)(1) a more limited reach.
The text of subsection (b)(1) contains a clear signal that
its prohibition applies only to first assistants who auto-
matically assume a vacant office under subsection (a)(1): It
begins with the clause “[n]otwithstanding subsection
(a)(1).” A notwithstanding clause identifies a potential
conflict between two or more provisions and specifies
which provision will prevail. Under the familiar expressio
unius est exclusio alterius interpretive canon, the choice to
single out subsection (a)(1)—and only subsection (a)(1)—in
this notwithstanding clause strongly suggests that the
prohibition reaches, and conflicts with, subsection (a)(1),
and only subsection (a)(1).
The rest of §3345 confirms this conclusion. The prohibi-
tion in subsection (b)(1) establishes who may not perform
the duties of a vacant office. In doing so, it introduces a
potential conflict with subsections (a)(1), (a)(2), (a)(3), and
(c)(1), which identify four categories of persons who may
perform the duties of a vacant office. By stating that its
prohibition applies “[n]otwithstanding subsection (a)(1),”
subsection (b)(1) expressly states that its prohibition takes
4 N.L.R.B. v. SW GENERAL, INC.
SOTOMAYOR, J., dissenting
precedence over the default rule set out in subsection
(a)(1). The omission of any reference to subsections (a)(2),
(a)(3), and (c)(1), in spite of the parallel potential for con-
flict with those subsections, suggests that the omission
was a “ ‘deliberate choice, not inadvertence.’ ” Bruesewitz
v. Wyeth LLC, 562 U.S. 223, 232–233 (2011) (quoting
Barnhart v. Peabody Coal Co., 537 U.S. 149, 168 (2003)).
That choice means that subsection (b)(1) trumps subsec-
tion (a)(1) but not subsections (a)(2), (a)(3), and (c)(1).
Nothing about a notwithstanding clause renders it
impervious to this established rule of statutory interpreta-
tion. The Court says that the rule has less force in the
context of a notwithstanding clause because such a clause
“confirms rather than constrains” the breadth of the provi-
sion to which it is attached. Ante, at 11. But the breadth
of the attached provision is precisely the question here,
and the clause’s specific reference to subsection (a)(1) and
only subsection (a)(1) strongly supports reading the at-
tached prohibition to limit only subsection (a)(1). See
Preseault v. ICC, 494 U.S. 1, 13–14 (1990) (a reference to
“ ‘this Act’ ” in a notwithstanding clause limited the scope
of the attached provision (emphasis deleted)).
The Court claims that the reference to subsection (a)(1)
may serve a different purpose. In its view, the reference
might instead demonstrate a congressional concern that a
conflict between subsection (b)(1) and subsection (a)(1)
would be “quite likely to arise” or “particularly difficult to
resolve.” Ante, at 11. A closer examination does not bear
out this hypothesis.
The text itself refutes the theory that subsection (b)(1) is
more likely to conflict with subsection (a)(1) than the other
subsections. The prohibition in subsection (b)(1) does not
apply to a person who served as the first assistant to the
vacant office for more than 90 days in the year before the
vacancy arose, §3345(b)(1)(A), or who serves as a Senate-
confirmed first assistant to the office, §3345(b)(2). A
Cite as: 580 U. S. ____ (2017) 5
SOTOMAYOR, J., dissenting
person serving under subsection (a)(1)—by definition, only
a first assistant—has a leg up in meeting those conditions
and avoiding subsection (b)(1)’s prohibition altogether.
Those serving under subsections (a)(2), (a)(3), and (c)(1)—
PAS officials, senior agency officials, or officials whose
terms in the vacant office have expired—do not. The
prohibition in subsection (b)(1) is thus more likely, not less
likely, to conflict with subsections (a)(2), (a)(3), and (c)(1).
And true enough, subsection (a)(1) sets out an automatic
rule under which the first assistant assumes acting status
upon a vacancy, whereas subsections (a)(2), (a)(3), and
(c)(1) set out conditional rules, under which the President
may choose to direct other officials to assume acting sta-
tus. But that distinction makes no difference when asking
whether a conflict between subsections (b)(1) and (a)(1)
would be harder to resolve without guidance than a con-
flict between subsection (b)(1) and the other subsections.
In stating who may not assume acting status, subsection
(b)(1) conflicts equally with the rules about who may
assume acting status set out in subsections (a)(1), (a)(2),
(a)(3), and (c)(1). The reference to subsection (a)(1) in
subsection (b)(1)’s notwithstanding clause thus cannot be
understood as a means to resolve a particularly vexing
conflict. The same conflict exists for all four categories.
Indeed, the Court’s explanations make the notwith-
standing clause in subsection (b)(1) superfluous. If the
notwithstanding clause serves only to confirm the breadth
of subsection (b)(1) and singles out subsection (a)(1) to
address a conflict shared equally by other subsections,
then it does no real work. The clause could be deleted
without changing the meaning of subsection (b)(1), as the
Court all but admits. See ante, at 12.
Worse still, a broad interpretation of subsection (b)(1)
renders subsection (c)(1) superfluous. Under subsection
(c)(1), the President may designate a person whose term in
an office has expired and who has been nominated to a
6 N.L.R.B. v. SW GENERAL, INC.
SOTOMAYOR, J., dissenting
subsequent term to serve as the acting official. It is un-
likely, even implausible, that a person who serves out a
set term will have served as the first assistant to her own
office during the year before her term expired. Yet subsec-
tion (b)(1) requires such service before a person can serve
as both an acting official and a nominee.1 As a result, if
subsection (b)(1) applies to all acting officials, it would
prohibit what subsection (c)(1) expressly permits: acting
service by a person nominated by the President to serve
out a consecutive Senate-confirmed term in the vacant
office. That is no way to read a statute.
Not a problem, the Court says. “[S]ubsection (b)(1) has
no effect on (c)(1)” because subsection (c)(1) contains a
specific rule about acting service by a nominee for a second
term that, under ordinary principles of statutory interpre-
tation, controls over the general rule governing acting
service by a nominee in subsection (b)(1). Ante, at 14. The
Court’s reasoning on this point undercuts its opening
claim that the words “person” and “under this section” in
subsection (b)(1) must refer to “anyone who performs
acting duties under the FVRA.” Ante, at 9. And it under-
scores why the “[n]otwithstanding subsection (a)(1)” clause
in subsection (b)(1) is superfluous under the Court’s read-
ing. The general authorization of acting service by a first
assistant in subsection (a)(1) would yield to the specific
prohibition on acting service by certain nominees in sub-
section (b)(1) even without the notwithstanding clause.2
——————
1 Subsection (b)(2)’s exception would not apply, as a person “nominated
. . . for reappointment for an additional term to the same office . . .
without a break in service,” 5 U.S. C. §3345(c)(1), will of course not be
a Senate-confirmed first assistant to that office.
2 SW General offers a different response that a person directed to
perform the duties of a vacant office under subsection (c)(1) does not
“serve as an acting officer,” §3345(b)(1). See Tr. of Oral Arg. 30. This
also misses the mark. Like subsections (a)(1), (a)(2), and (a)(3), subsec-
tion (c)(1) is located in §3345, titled, “Acting officer.” Div. C, §151(b),
112 Stat. 2681–611. Like those subsections, it addresses who may fill a
Cite as: 580 U. S. ____ (2017) 7
SOTOMAYOR, J., dissenting
In contrast, reading subsection (b)(1) to apply only to a
first assistant serving as an acting official under subsec-
tion (a)(1) renders no other provision superfluous. The
Court reasons that subsection (b)(2)(A)’s reference to a
person “serving as the first assistant to the office” would
be superfluous if subsection (b)(1) applies only to first
assistants serving under subsection (a)(1). See ante, at 13.
But recall that subsection (b)(2) creates an exception to
subsection (b)(1). Subsection (b)(1) provides that a person
cannot serve as an acting official while nominated if that
person was not the first assistant to the vacant office for at
least 90 of the 365 days before the vacancy arose. Subsec-
tion (b)(2) states that those requirements do “not apply to”
current Senate-confirmed first assistants. Put another
way, subsection (b)(1) imposes requirements based on a
person’s past service, and subsection (b)(2) lifts those
requirements based on a person’s current service. The
reference in subsection (b)(2)(A) to a person “serving as
the first assistant to the office” is thus necessary to convey
the relevant time period of the service that triggers the
exception to subsection (b)(1).
B
The events leading up to and following the enactment of
the FVRA further support interpreting subsection (b)(1) to
apply only to first assistants serving under subsection
(a)(1).
——————
vacant office. See 5 U.S. C. §3345(c)(2). And like those subsections, it
expressly subjects service to the time limits in §3346, which apply to
“the person serving as an acting officer as described under section
3345.” §3346(a). Moreover, relegating officials directed to serve under
subsection (c)(1) to some statutorily unnamed, non-acting official status
would muddle other provisions of the FVRA. See §3347(a) (making
§§3345 and 3346 “the exclusive means for temporarily authorizing an
acting official” to serve in a PAS office); §3349(a)(2) (requiring reporting
of “the name of any person serving in an acting capacity and the date
such service began immediately upon the designation”).
8 N.L.R.B. v. SW GENERAL, INC.
SOTOMAYOR, J., dissenting
First, nothing in the legislative history of the FVRA
indicates that subsection (b)(1) was enacted as a broad
prohibition on acting service by all nominees. Under the
Vacancies Act of 1868, the FVRA’s predecessor, the first
assistant to a vacant office served as the acting official
unless the President directed another PAS official to do so.
See Act of July 23, 1868, ch. 227, 15 Stat. 168–169. The
Act did not prohibit any person, first assistant or other-
wise, from serving as an acting official while nominated to
fill the office. This structure remained in place for over a
century.
The events that prompted the FVRA’s enactment con-
firm, in line with the reading above, that the Act altered
this pre-existing structure to prohibit certain first assis-
tants from serving in an acting capacity while nominated
to the vacant office. The service of one acting official, Bill
Lann Lee, was the turning point in a broader, long-
running dispute between the political branches over Exec-
utive Branch compliance with the Vacancies Act of 1868.
In 1997, Lee was brought into the Department of Justice
to serve as the Acting Assistant Attorney General for the
Civil Rights Division after his nomination to the position
failed. He continued to serve in an acting capacity after
he was renominated to the position. The decision to bring
Lee in to serve in the Department of Justice after his
failed nomination led to strong congressional criticism.
See, e.g., Letter from A. Fois, Assistant Attorney General,
Office of Legislative Affairs, to Sen. S. Thurmond, pp. 3–4
(Feb. 24, 1998). Subsection (b)(1) addresses the Lee inci-
dent and prevents its recurrence. See S. Rep. No. 105–
250, p. 13 (1998) (explaining that an earlier version of
subsection (b)(1) “prevent[s] manipulation of first assis-
tants to include persons highly unlikely to be career offi-
cials”). It bars a first assistant from serving under subsec-
tion (a)(1) while nominated unless the person was the first
assistant for a significant period of time before the vacancy
Cite as: 580 U. S. ____ (2017) 9
SOTOMAYOR, J., dissenting
arose (90 of the previous 365 days) or the person is the
Senate-confirmed first assistant to the vacant office.
In contrast, there is no indication of an intent to depart
further from the century-old practice under the Vacancies
Act of 1868 and prohibit acting service by other officials
nominated to a vacant office. No one has identified con-
gressional statements expressing concern with such ser-
vice or calling for a broader prohibition. Indeed, an earlier
version of subsection (b)(1) unquestionably applied only to
first assistants serving under subsection (a)(1), even
though the bill permitted the President to designate a PAS
official as the acting official instead of the first assistant.
See id., at 25. The legislative history does not document
the reason for the changes to this subsection. The Court
suggests that an unspoken congressional compromise led
to an expanded subsection (b)(1). Ante, at 15–16. While
the compromise it hypothesizes is possible, no evidence
supports it, and the absence of any hint that the compro-
mise was hoped for during the development of or debate on
the FVRA means that it is not probable.
Second, under the Court’s reading of subsection (b)(1),
the Executive Branch began violating the FVRA almost
immediately after its enactment. Within months, the
Department of Justice’s Office of Legal Counsel (OLC)
advised Executive Branch agencies that the prohibition in
subsection (b)(1) “applies only to persons who serve as
acting officers by virtue of having been the first assistant
to the office.” Guidance on Application of Federal Vacan-
cies Reform Act of 1998, 23 Op. OLC 60, 64 (1999). The
Government Accountability Office, tasked with aiding
congressional enforcement of the FVRA, later reached the
same conclusion. See Letter from C. Joyner, Dir., Strate-
gic Issues, to F. Thompson, Chairman, U. S. Senate Com-
mittee on Governmental Affairs, Subject: Eligibility Crite-
ria for Individuals To Temporarily Fill Vacant Positions
Under the Federal Vacancies Reform Act of 1998, pp. 3–4
10 N.L.R.B. v. SW GENERAL, INC.
SOTOMAYOR, J., dissenting
(GAO–01–468R, Feb. 23, 2001). Since the enactment of
the FVRA, the Senate has received over 100 nominations
of persons who continued to serve in an acting capacity
after their nomination but had not satisfied the conditions
in subsection (b)(1) for acting service by a nominee. See
App. A to Brief for United States.
And yet, this legion of would-be violations prompted no
response. No evidence suggests that the Senate reacted by
requiring any of those nominees to cease their acting
service. Cf. Pet. for Cert. 28–29 (citing objections raised
after the decision below). The failure to object is all the
more glaring in light of the enforcement mechanism writ-
ten into the FVRA. Section 3349 requires each Executive
Branch agency to “immediately” notify the Comptroller
General, who heads the Government Accountability Office,
and both Houses of Congress of “a vacancy . . . and the
date such vacancy occurred,” “the name of any person
serving in an acting capacity and the date such service
began,” “the name of any person nominated to the Senate
to fill the vacancy and the date such nomination is submit-
ted,” and the date a nomination is acted upon. This provi-
sion leaves no doubt that Congress had all the information
it needed to object to any FVRA violations it perceived.
Congressional silence in the face of a decade-plus prac-
tice of giving subsection (b)(1) a narrow reach casts serious
doubt on the broader interpretation. It indicates that
Congress, like the Executive Branch, interpreted subsec-
tion (b)(1) in line with its text to reach only first assistants
to the vacant office serving pursuant to subsection (a)(1).
* * *
The FVRA prohibits a limited set of acting officials—
non-Senate confirmed first assistants who serve under
subsection (a)(1) and did not serve as the first assistant to
the vacant office for at least 90 of the 365 days before the
vacancy arose—from performing the duties of a vacant
Cite as: 580 U. S. ____ (2017) 11
SOTOMAYOR, J., dissenting
office while also serving as the President’s nominee to fill
that office. Reading the provision more broadly to apply to
all acting officials disregards the full text of the FVRA and
finds no support in its purpose or history. The Court
prefers that reading. I respectfully dissent.