Hooks Ex Rel. National Labor Relations Board v. Kitsap Tenant Support Services, Inc.
816 F.3d 550
9th Cir.
2016

Background

  • Ronald Meisburg resigned as NLRB General Counsel on June 20, 2010; President Obama designated Lafe E. Solomon Acting General Counsel under the FVRA and later nominated him to be permanent General Counsel on January 5, 2011. Solomon served as Acting General Counsel from June 21, 2010 to November 4, 2013.
  • Under the NLRA the Board may delegate 10(j) authority to the General Counsel; Regional Director Ronald Hooks filed the underlying complaint and the Board (through Solomon) sought a 10(j) injunction against Kitsap Tenant Support Services (KTSS) on June 13, 2013.
  • KTSS moved to dismiss, arguing Solomon lacked authority to authorize the 10(j) petition because his service as Acting General Counsel violated the Federal Vacancies Reform Act (FVRA) once he was nominated for the permanent post.
  • The district court dismissed the 10(j) petition; on appeal the Board conceded its own three-member quorum authorization was invalid after Noel Canning, so validity of Solomon’s FVRA status determinative.
  • The Ninth Circuit held § 3345(b)(1) of the FVRA applies to all categories of acting officers under § 3345(a), so an acting official who has been nominated to the permanent office may not continue to serve unless the (b)(1) conditions are met; Solomon did not meet them and thus lacked authority to authorize the 10(j) petition.
  • The Board waived reliance on the FVRA exemption and de facto officer defenses; the Ninth Circuit affirmed dismissal of the 10(j) petition for lack of valid authorization.

Issues

Issue KTSS's Argument NLRB's Argument Held
Whether § 3345(b)(1) of the FVRA prohibits an acting officer designated under § 3345(a)(2) or (a)(3) from continuing to serve after the President nominates that same person to the permanent office unless (b)(1) is satisfied § 3345(b)(1) applies broadly to all acting officers; Solomon (an (a)(3) designee) could not continue to serve once nominated because he did not meet (b)(1) (b)(1) is limited to first-assistant acting officers under (a)(1); (a)(2)/(a)(3) designees are not covered Court held (b)(1) applies to all § 3345(a) categories; Solomon’s service after nomination violated the FVRA
Whether the NLRA’s temporary-designation provision (29 U.S.C. § 153(d)) precludes use of the FVRA for NLRB General Counsel appointments NLRA alone governs Acting General Counsel appointments and Solomon’s noncompliance with § 153(d) would invalidate his service FVRA and NLRA coexist; NLRA § 3(d) is an express statutory alternative to FVRA, so President may use either statute Court held NLRA § 3(d) is an express alternative; President may elect FVRA or NLRA methods
Whether actions taken by an improperly serving Acting General Counsel are necessarily void FVRA generally voids actions taken in violation but some statutory exemptions and doctrines (de facto officer, harmless error) may render actions voidable Board argued for applicability of FVRA exemption or de facto officer doctrine to validate actions Court noted statutory exemption exists but Board waived reliance; dismissal affirmed and de facto/officer defenses were not considered on the merits
Whether the Board’s separate three-member quorum authorization validated the 10(j) petition NLRB initially claimed independent quorum authorization KTSS argued Noel Canning invalidated two appointments, so Board lacked a valid quorum Court accepted Board’s concession that Noel Canning defeated the quorum basis; thus only the General Counsel delegation route remained and it failed

Key Cases Cited

  • NLRB v. United Food & Commercial Workers Union, Local 23, 484 U.S. 112 (1987) (describing NLRB charge and complaint process)
  • NLRB v. Sears, Roebuck & Co., 421 U.S. 132 (1975) (discussing delegation of complaint-issuing authority to Regional Directors)
  • NLRB v. Noel Canning, 134 S. Ct. 2550 (2014) (limits on Recess Appointments Clause affecting Board membership)
  • SW General, Inc. v. NLRB, 796 F.3d 67 (D.C. Cir. 2015) (interpreting § 3345(b)(1) to cover all § 3345(a) categories)
  • United States v. Great Northern Ry. Co., 343 U.S. 562 (1952) (apply statutes as written, not as might have been written)
  • TRW Inc. v. Andrews, 534 U.S. 19 (2001) (avoid interpretations that render statutory language superfluous)
  • Pfizer, Inc. v. Government of India, 434 U.S. 308 (1978) (interpretation of broad phrases like "any person")
  • Nguyen v. United States, 539 U.S. 69 (2003) (describing de facto officer doctrine)
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