Gonzales & Gonzales Bonds & Insurance Agency, Inc. v. UsdhsGonzales & Gonzales Bonds & Insurance Agency, Inc. v. Usdhs
Case Information
*4
BEA, Circuit Judge:
In certain immigration cases, the Department of Homeland Security (“DHS”) requires a bond—similar to a bail bond in criminal cases—to avoid detention of the alien pending deportation. The bond secures a promise that the alien will appear for immigration proceedings, which will determine whether the alien can remain in the United States. Commercial firms, known as sureties, provide such bonds. In 2020, the “Acting Secretary” of the DHS promulgated a rule that permitted the agency to refuse business from certain surety firms that were serially delinquent in making payments for absconding aliens or that had garnered a reputation for posting bonds for frequent absconders. Procedures and Standards for Declining Surety Immigration Bonds and Administrative Appeal Requirement for Breaches, 85 Fed. Reg. 45968, 45968–69 (July 31, 2020) (the “Rule”).
But some of those sureties that were not too fond of this new Rule, which cut into their business, realized that the “Acting Secretary” who promulgated the Rule may not have been duly appointed. Hence, the Rule might be invalid and the sureties might have been improperly banned from doing business with the DHS.
Unfortunately for the sureties’ pretensions, in 2021
Secretary of Homeland Security Alejandro Mayorkas, who
was duly appointed, ratified the Rule. But that leaves the
question—does the exercise of ratification cure the alleged
defect in the Rule’s promulgation? We hold that it does.
Under principles of agency law and Circuit precedent,
Secretary Mayorkas had the authority to ratify an action
ONZALES & G ONZALES B ONDS & I NS . A GENCY , I NC . V . taken by an improperly appointed Acting Secretary, who
would not otherwise have been authorized to take that action.
See Consumer Fin. Prot. Bureau v. Gordon
,
We conclude that the Secretary had the authority to delegate promulgation of the Rule; it was not a function or duty singularly entrusted to the Secretary. 6 U.S.C. § 112(b)(1). Because the Secretary could have delegated promulgation of the Rule, Secretary Mayorkas could ratify the 2020 promulgation of the Rule, regardless whether the Rule’s promulgation had been actually delegated. Thus, ratification of the Rule by Secretary Mayorkas cured any defect in the Rule’s promulgation.
The question in this case is whether 5 U.S.C.
§ 3348(d)(2),
the Ratification Bar, which prohibits
ratification of certain actions taken by a purported officer
serving in violation of the Federal Vacancies Reform Act of
1998 (“FVRA”), applies only to “functions or duties” that
are singularly entrusted by statute or regulation to that
officer, and in other words are “nondelegable.” We hold that
it does. By the statute’s own definition,
[1]
§ 3348(d)’s
Ratification Bar applies only to nondelegable functions or
duties because only nondelegable functions or duties are
“required by statute [or regulation] to be performed by the
applicable officer (and only that officer).” 5 U.S.C.
*6
requires the President to obtain the “Advice and Consent of
the Senate” to make those appointments effective. U.S.
C ONST . art. II, § 2, cl. 2. To avoid negative repercussions of
vacancies in those positions, “Congress has long accounted
for th[e] reality” of vacancies “by authorizing the President
to direct certain officials to temporarily carry out the duties
of a vacant . . . office in an acting capacity, without Senate
confirmation.”
NLRB v. SW Gen., Inc.
,
Under the FVRA, when an Executive agency officer “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[,] the first assistant to the office of such officer shall perform the functions and duties of the office temporarily in an acting capacity,” 5 U.S.C. § 3345(a)(1), unless the President selects either another officer who was previously Presidentially appointed and Senate-confirmed or an officer or employee of the same agency who has served a specified time in that agency, id. § 3345(a)(2)–(3).
The FVRA is 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 a statutory provision expressly authorizes the President, a court, or the head of an Executive department” to designate the acting officer, a statute designates the acting officer, or the President makes an appointment during a Senate recess. Id. § 3347(a).
In December 2016, President Obama exercised his authority under § 3345(a) to establish an order of succession for the Office of Secretary of Homeland Security in case of an office vacancy. Exec. Order No. 13753, 81 Fed. Reg. 90667 (Dec. 9, 2016) (“Executive Order 13753”). Later that month, Congress amended the Homeland Security Act to give the Secretary of Homeland Security independent authority to create an order of succession, but did not change the order of succession established by President Obama’s Executive Order 13753. National Defense Authorization Act for Fiscal Year 2017, Pub. L. No. 114-328, § 1903, 130 Stat. 2000, 2672 (2016) (codified at 6 U.S.C. § 113(g)). President Obama signed the Act, and it became law.
A. Chad Wolf’s Ascension to “Acting Secretary” of the DHS
In April 2019, Kirsjten Nielsen, on her last day of service as Secretary of Homeland Security, modified an order titled “DHS Orders of Succession and Delegations of Authority for Named Positions,” also known as Delegation 00106. Delegation 00106, both before and as amended, provided in subparts II.A–B:
A. In case of the Secretary’s death, resignation, or inability to perform the functions of the Office, the orderly succession of officials is governed by Executive Order 13753, amended on December 9, 2016.
B. I hereby delegate to the officials occupying the identified positions in the order listed (Annex A), my authority to exercise the powers and perform the functions and duties of my office, to the extent not otherwise prohibited by law, in the event I am unavailable to act during a disaster or catastrophic emergency . (emphasis added). In a document titled “Amending the Order of Succession in the Department of Homeland Security,” Secretary Nielsen invoked her authority under 6 U.S.C. § 113(g)(2), and “designate[d] the order of succession for the Secretary of Homeland Security as follow[ed].” What followed were instructions to strike Annex A and replace it with a new list, still titled “Annex A. Order for Delegation of Authority by the Secretary of the Department of Homeland Security.” Notably, Secretary Nielsen did not change the text of Delegation 00106, subpart II.A; so, Annex A, both before and after Secretary Nielsen’s order, applied only to delegations occurring “during a disaster or catastrophic emergency.” As a result, absent a delegation during a disaster or catastrophic emergency, subpart II.A, “the orderly succession of officials” to the Secretary’s office, was still “governed by Executive Order 13753.”
As of Secretary Nielsen’s last day in office, the list of names in Secretary Nielsen’s Annex A and Executive Order 13753 differed. Annex A listed (1) the Deputy Secretary of ONZALES & G ONZALES B ONDS & I NS . A GENCY , I NC . V . Homeland Security, (2) the Under Secretary for Management, (3) the Commissioner of Customs and Border Protection (“CBP”), and (4) the Administrator of the Federal Emergency Management Agency (“FEMA”), in that order. In contrast, Executive Order 13753’s order of succession began with the same first two positions as Annex A, (1) the Deputy Secretary of Homeland Security and (2) the Under Secretary for Management, but then it listed (3) the Administrator of FEMA (rather than the Commissioner of CBP) followed by (4) the Under Secretary for National Protection and Programs (“NPP”), renamed the Director of the Cybersecurity and Infrastructure Security Agency (“CISA”) (rather than the Administrator of FEMA). [2] 81 Fed. Reg. at 90667.
When Secretary Nielsen resigned the next day, the offices of Deputy Secretary of Homeland Security and Under Secretary for Management were both vacant, so the Commissioner of CBP, Kevin McAleenan, became “Acting Secretary,” apparently relying on Secretary Nielsen’s amendments to Annex A. No one disputes that there was no applicable “disaster or catastrophic emergency” on that day. So, under the operative orders—Delegation 00106, subpart II.A, and Executive Order 13753—and because the FEMA Administrator office was also vacant, the Director of the CISA, Christopher Krebs, should have assumed the role of Acting Secretary, rather than McAleenan. However, Krebs *9 did not do so; instead, McAleenan assumed the role. Thus, McAleenan was not a duly appointed Acting Secretary.
Nonetheless, in November 2019, McAleenan amended Delegation 00106, changing subpart II.A to reference Annex A instead of Executive Order 13753. McAleenan also amended Annex A, replacing the fourth position with the Under Secretary for Strategy, Policy, and Plans. Soon thereafter, McAleenan resigned, and because the first three positions of Annex A were vacant, the Under Secretary for Strategy, Policy, and Plans—Chad Wolf—became “Acting Secretary” pursuant to McAleenan’s purported order of succession, rather than the Director of the CISA, Christopher Krebs, as would have ensued under Executive Order 13753. No one disputes that there was no applicable “disaster or catastrophic emergency” on that day either. Hence, Wolf was no more duly appointed than had been McAleenan.
B. “Acting Secretary” Wolf’s Promulgation of the Rule
As noted, the DHS has a policy of releasing aliens from
custody while removal proceedings are pending if they post
an immigration bond, a guarantee that the alien will appear
upon government request for future proceedings or
otherwise cooperate with Immigration and Customs
Enforcement (“ICE”) officials.
See
To address this concern, Wolf promulgated the Rule in July 2020 while purportedly serving as “Acting Secretary.” See id. at 45968. The Rule delegated to ICE the discretion to reject surety bonds from companies with outstanding balances owed and unpaid to the DHS or with high breach rates, and further required administrative exhaustion, filings and procedures within DHS by sureties wishing to challenge DHS bond-breach decisions, prior to the sureties seeking relief by filing actions in court. id. at 45971–73.
C. Procedural History and Ratification of the Rule *10 In December 2020, five companies engaged in the business of posting immigration surety bonds with the DHS (“Plaintiffs”) sued the DHS, ICE, Wolf, and Kenneth Cuccinelli, under the title of Senior Official Performing the Duties of the Deputy Secretary of Homeland Security (collectively, “the government”) in the United States District Court for the Northern District of California, claiming that the Rule should be set aside under the Administrative Procedure Act (“APA”), 5 U.S.C. §§ 701–06. [3] Plaintiffs argued the Rule had not been properly promulgated because Wolf was not properly serving as Acting Secretary of DHS when he purported to promulgate the Rule.
However, in April 2021, Secretary Alejandro Mayorkas, who no one disputes was properly appointed by President Biden and confirmed by the Senate, ratified the Rule, stating that he had “full knowledge” of the Rule and believed ratification was “consistent with the Department’s *11 Plaintiff sureties were back in business. But the government timely appealed.
II. JURISDICTION & STANDARD OF REVIEW
We have jurisdiction over this appeal under 28 U.S.C. § 1291. We review the district court’s grant of summary judgment de novo. Desire, LLC v. Manna Textiles, Inc. , 986 F.3d 1253, 1259 (9th Cir. 2021).
III. DISCUSSION
A. DHS Order of Succession
On Secretary Nielsen’s last day serving as Secretary of
Homeland Security, she failed to amend Delegation 00106,
subpart II.A—the order of succession to her office “[i]n case
of the Secretary’s death, resignation, or inability to perform
the functions of the Office.” Instead, she amended Annex
A—the order of delegation in the event she was “unavailable
to act during a disaster or catastrophic emergency” pursuant
to Delegation 00106, subpart II.B. Hence, her amended
order of delegation could be effective only during a “disaster
or catastrophic emergency.” The parties do not dispute that
neither McAleenan’s nor Wolf’s succession to the
secretaryship of DHS occurred during such events. Despite
the plain language of the order, the government has argued—
and at least seven times failed to persuade district courts—
that Secretary Nielsen’s error should be excused.
See
Asylumworks v. Mayorkas
, 590 F. Supp. 3d 11, 20–21
(D.D.C. 2022);
Behring Reg’l Ctr. LLC v. Wolf
, 544 F. Supp.
3d 937, 943–44 (N.D. Cal. 2021);
Chamber of Com. of U.S.
v. U.S. Dep’t of Homeland Sec.
, No. 20-cv-07331-JSW,
2021 WL 4198518, at *4–5 (N.D. Cal. Sept. 15, 2021);
Pangea Legal Servs. v. U.S. Dep’t of Homeland Sec.
, 512 F.
Supp. 3d 966, 974–75 (N.D. Cal. 2021);
La Clínica de la
Raza v. Trump
, No. 19-cv-04980-PJH,
At this point, the government’s position that Secretary Nielsen’s error should be excused seems, at best, untenable, ONZALES & G ONZALES B ONDS & I NS . A GENCY , I NC . V . and at worst, frivolous. And though the government assured us at oral argument that the government’s intentions were not “nefarious,” Secretary Nielsen’s best intentions did not transform the modification of Annex A into a modification of Delegation 00106, subpart II.A. As a result, McAleenan improperly assumed the role of “Acting Secretary” over Christopher Krebs, who was next in line under Executive Order 13753. Therefore, McAleenan was without authority in November 2019 to amend Delegation 00106, though his attempt demonstrated awareness that his predecessor should have amended subpart II.A to reference Annex A instead of Executive Order 13753. When McAleenan resigned, Wolf improperly assumed the role of “Acting Secretary” pursuant to McAleenan’s version of Annex A instead of Executive Order 13753. Therefore, “Acting Secretary” Wolf lacked authority to promulgate the Rule. Undeterred, Wolf went on to promulgate the contested Rule.
B. Ratification and the FVRA’s Ratification Bar This raises the question whether, despite Wolf’s improper service as “Acting Secretary,” any defect in the 2020 promulgation of the Rule was cured by Secretary Mayorkas’s 2021 ratification of the Rule, or whether any such ratification was barred by the FVRA.
1. Secretary Mayorkas’s authority to ratify the Rule
The Supreme Court has instructed that when one officer
acts without authority, the validity of an “‘after-the-fact’
authorization” by another officer with authority to take the
action “is at least presumptively governed by principles of
agency law, and in particular the doctrine of ratification.”
FEC v. NRA Pol. Victory Fund
,
Where an invalidly appointed person takes an action on
behalf of an agency, a subsequent, valid ratification cures
any deficiencies in the original appointment.
Gordon
, 819
F.3d at 1190–91. In
Gordon
, the Consumer Financial
Protection Bureau (“CFPB”) brought a civil enforcement
action against a lawyer for violations of the Consumer
Financial Protection Act based on unfair and deceptive
practices.
Id.
at 1186. The lawyer challenged the
prosecution on the grounds that the CFPB brought the action
while being led by an improperly appointed Director.
Id.
The lawyer claimed the President had unconstitutionally
appointed the Director.
Id.
President Obama had initially
relied on his recess-appointment power to appoint Richard
Cordray as Director.
Id.
at 1185. But after the Supreme
Court rejected other similar appointments in
NLRB v. Noel
Canning
, 573 U.S. 513, 518–19 (2014), President Obama
“renominated” Cordray, and he was later confirmed by the
Senate.
Gordon
,
Here, we similarly find that Secretary Mayorkas, who
was appointed by President Biden and confirmed by the
Senate in February 2021, had the authority under agency law
to ratify the Rule in April 2021. Like in
Gordon
, Secretary
Mayorkas ratified Wolf’s promulgation of the Rule. At all
times relevant here, it is undisputed that the principal—the
Secretary of Homeland Security—had the authority to
“establish such regulations; prescribe such forms of bond,
reports, entries, and other papers; issue such instructions;
and perform such other acts as he deems necessary for
carrying out his authority.” 8 U.S.C. § 1103(a)(3);
see Gordon
,
2. The FVRA’s Ratification Bar
But not so fast. The authority to ratify is not unlimited.
One limit on the ability to ratify the unauthorized actions of
a purported Acting Secretary is the FVRA’s Ratification
Bar—the very crux of this case.
See
5 U.S.C. § 3348(d)(2).
The parties dispute the applicability of the Ratification Bar.
The subsection that contains the Ratification Bar provides
that actions “taken by any person who is not acting under”
the FVRA “in the performance of any
function or duty
of a
vacant office . . . shall have no force or effect” and “may not
be ratified.”
Id.
§ 3348(d) (emphasis added). Unfortunately,
the district court failed to grapple with § 3348’s definition of
“function or duty,” thus ignoring a key aspect of the statute
being interpreted.
id.
§ 3348(a)(2). Because this Court
has never interpreted the Ratification Bar provision of the
FVRA, we do so now and join the other circuit courts in
holding that the Ratification Bar embodied in § 3348(d)
applies only to those duties of an officer that are
nondelegable.
See Kajmowicz
,
We hold that promulgation of the Rule was not a nondelegable duty of the Secretary of Homeland Security. Since promulgation of the Rule could have been delegated by the Secretary to another person, and was not an action which only the Secretary could take, the Ratification Bar does not invalidate Secretary Mayorkas’s ratification of Wolf’s promulgation of the Rule.
As always, we “begin by analyzing the statutory
language, ‘assum[ing] that the ordinary meaning of that
language accurately expresses the legislative purpose.’”
Hardt v. Reliance Standard Life Ins. Co.
,
In prescribing the penalties for failure to comply with the FVRA, § 3348(d) provides:
(1) An action taken by any person who is not acting under [the FVRA] in the performance of any function or duty of a vacant office to which [the FVRA applies] shall have no force or effect. (2) An action that has no force or effect under paragraph (1) may not be ratified.
Id. (emphasis added). Notably, “function or duty” is a term defined in the same statute:
(a) In this section--
. . .
(2) the term “function or duty” means any function or duty of the applicable office that-- (A) (i) is established by statute; and (ii) is required by statute to be performed by the applicable officer ( and only that officer ); or (B) (i)(I) is established by regulation; and (II) is required by such regulation to be performed by the applicable officer (and only that officer); and (ii) includes a function or duty to which clause (i)(I) and (II) applies, and the applicable regulation is in effect at any time during the 180- day period preceding the date on which the vacancy occurs.
Id. § 3348(a) (emphasis added).
The plain and unambiguous language of § 3348(d)(1),
and subsection (d)(2)’s Ratification Bar, applies only to “any
ONZALES & G ONZALES B ONDS & I NS . A GENCY , I NC . V .
function or duty
of a vacant office.” § 3348(d)(1) (emphasis
added). As “function or duty” is defined within § 3348 as
one that is “required by statute to be performed by the
applicable officer (and only that officer),” the plain language
of that definition is determinative.
See Stenberg v. Carhart
,
530 U.S. 914, 942 (2000) (“When a statute includes an
explicit definition, we must follow that definition . . . .”).
Further, it is “a cardinal principle of statutory construction
that we must ‘“give effect, if possible, to every clause and
word of a statute.”’”
Williams v. Taylor
,
Equipped with these guiding principles, the plain and unambiguous text and the FVRA’s structure support an interpretation of “function or duty” that includes a Ratification Bar only to exclusive, or nondelegable, duties of the Secretary. We explain below why the promulgation of the Rule is not a “function or duty” which a statute or regulation requires only the Secretary to perform, but a duty which the Secretary can lawfully delegate. Thus, the Ratification Bar does not apply here.
a. Text A “function or duty” under § 3348 must be exclusive to the officer, or nondelegable, based on the plain and unambiguous meaning of the parenthetical modifier “and only that officer.” 5 U.S.C. § 3348(a)(2). Though Plaintiffs correctly note that the word nondelegable “appears nowhere in the statute,” to assign the parenthetical modifier any other interpretation would strain the plain meaning of the phrase “and only that officer.” In 1998, when the FVRA was passed, the pertinent definition of the adverb “only” meant what it means today: “solely, exclusively.” M ERRIAM - W EBSTER ’ S C OLLEGIATE D ICTIONARY 812 (10th ed. 1998). The plain meaning of “only that officer” means the “function or duty” must be entrusted to and performed exclusively by that officer and no one other than that officer . It does not, as the dissent suggests, merely “exclude[] instances in which Congress has directed more than one officer to perform a *17 function or duty,” each by himself or together with another officer. Diss. Op. 51–52. If a statute required a duty to be performed by “the Secretary and/or anyone of the Secretary’s choosing,” despite no other officer being assigned that duty, surely that duty would not constitute a “function or duty” under § 3348(a)(2), because that duty would not be “required by statute” to be performed by “only that officer.” See 5 U.S.C. § 3348(a)(2)(A)(ii). The dissent’s interpretation would negate the plain meaning of the parenthetical “and only that officer.”
The plain meaning of the parenthetical “and only that officer” is further clarified by the definition’s introductory language. The definition of “function or duty” refers to “the applicable office” and then “the applicable officer,” but the parenthetical “only that officer” refers to the officer, not the office. Id. § 3348(a)(2). By “officer” Congress means “an individual who is . . . engaged in the performance of a Federal function under authority of law or an Executive act.” Id. § 2104(a)(2). By “office” Congress means a particular set of functions or duties established by law. See id. § 2104(a)(3) (an officer is “subject to the supervision of an authority . . . while engaged in the performance of the duties of his office”). Functions and duties are established, or vested, in an office. See id. § 3348(a)(2)(A)(i). They are performed, and with proper authority may be delegated, by an officer. id. § 3348(a)(2)(A)(ii). Thus, the “only that officer” parenthetical applies to who performs or delegates the function or duty (the officer) instead of where the function or duty is established or vested (the office). Congress chose to define “function or duty” in terms of which specific officer is required to perform that duty. That choice supports an interpretation that incorporates a requirement of nondelegation for the Ratification Bar to apply.
An interpretation of “function or duty” narrower than
that proposed by the dissent, and in keeping with this
opinion, has been endorsed by every other circuit to decide
the issue, and for sound reasons.
See Kajmowicz
, 42 F.4th
at 148;
Arthrex
,
In Kajmowicz , the Third Circuit affirmed a district *18 court’s dismissal of a suit challenging the promulgation of a rule by a purported “Acting Attorney General.” Kajmowicz , 42 F.4th at 144. The court held that Attorney General William Barr’s later ratification of the rule was not barred by the FVRA and foreclosed Kajmowicz’s challenge. Id. at 144, 154. The court wrote that the statutory language was unambiguous and that the definition of “function or duty” does not include delegable functions and duties. Id. at 148– 49. The court was unpersuaded by the fact that § 3348 does not contain the words “nondelegable” or “exclusive” because “Congress need not have included these terms when it already included the parenthetical qualifier ‘and only that officer.’” Id. at 148 (quoting § 3348(a)(2)(A)(ii)). The court also explicitly rejected the argument that “if a statute assigns a duty to a single office rather than multiple offices, then it does so exclusively.” Id. at 149. Referencing the presumption that delegation is “permissible absent affirmative evidence of a contrary congressional intent,” the court gave “effect to Congress’s decision to define a ‘function or duty’ in terms of what the statute requires, not what it permits.” Id. at 149–50 (quoting La. Forestry Ass’n v. Sec’y U.S. Dep’t of Lab. , 745 F.3d 653, 671 (3d Cir. 2014)). Applying this interpretation, and acknowledging that “most statutes that confer authority will permit subdelegation,” and thus permit ratification under the FVRA, [4] the court determined that Attorney General Barr’s ratification of the promulgated rule was not prohibited by the FVRA and cured any defects. Id. at 151–52.
Here, applying the plain text of the statute, the relevant
question is whether promulgation of immigration surety
bond rules was a “function or duty” “established by statute”
and “required by statute to be performed by” the Secretary
of Homeland Security (and only the Secretary of Homeland
Security).
See
5 U.S.C. § 3348(a)(2)(A). Under 8 U.S.C.
ONZALES & G ONZALES B ONDS & I NS . A GENCY , I NC . V . § 1103(a)(3), the Secretary of Homeland Security “shall
establish such regulations; prescribe such forms of bond,
reports, entries, and other papers; issue such instructions;
and perform such other acts as he deems necessary for
carrying out his authority.” And under 6 U.S.C. § 112(b)(1),
the Secretary “except as otherwise provided by this chapter,
may delegate any of the Secretary’s functions to any officer,
employee, or organizational unit of the Department.” This
broad authority to delegate is reinforced by the presumption
that “as far as delegation to subordinates is concerned,
‘[e]xpress statutory authority for delegation is not
required.’”
Frankl v. HTH Corp.
,
b. Structure A textual interpretation of the statute that incorporates the “nondelegable” requirement as a necessary element to bar ratification is supported by the structure of the FVRA and will not, as Plaintiffs insist, “eviscerate the FVRA’s remedial scheme.” Nor does a textual reading require us to view this provision in isolation or disrupt the statute’s structure.
To begin, our interpretation of “function or duty” will not
allow agencies to skirt the FVRA’s requirements. Amicus
*20
Constitutional Accountability Center (“Center”) posits that
a requirement of nondelegation to invoke the Ratification
Bar would allow agencies to “rely on their vesting-and-
delegation authority to circumvent [the FVRA], knowing
that their unlawful actions could not be held void under
§ 3348(d)(1) and, if necessary, could be ratified.” Not so.
First, actions of officers who are exempt from § 3348,
[5]
including its Ratification Bar, can still be found without legal
force based on other provisions of the FVRA.
See SW Gen.
,
580 U.S. at 298–305, 309 (affirming the lower court’s
decision to vacate an NLRB order where the officer served
in violation of § 3345, even though his office was exempt
from § 3348, including the Ratification Bar). Second, the
FVRA is not the only limit on agency action, and a court
could “hold unlawful and set aside agency action” taken by
someone without authority to act on behalf of the agency as
“not in accordance with law . . . [or] in excess of
statutory . . . authority.” 5 U.S.C. § 706(2). Third,
subsequent ratification of an action taken by an improperly
appointed Acting Secretary is not inevitable. The
subsequent Secretary would have to exercise his lawful
authority to ratify the action, an action he could take
independently in his capacity as Secretary, and only if
Congress had not made that earlier action nondelegable.
Thus, agencies hypothetically could rely on their vesting-
and-delegation authority, even if knowingly violating the
FVRA, but that would neither make their actions
immediately lawful nor ensure their ratification.
*21
doctrine . . . to overcome the consequences of particular
FVRA violations.”
Id.
Or, as in this case, the agency may
raise a ratification defense.
See Gordon
,
Further, interpreting the parenthetical modifier “and only
that officer” to denote duties exclusive to that officer is
consistent with a similar use of the same parenthetical
modifier in § 3345(a). That section provides that “the
President (and only the President) may direct” eligible
people to serve as acting officers. 5 U.S.C.
§ 3345(a)(2)–(3). Though § 3345 is framed in terms of what
the President “may” do, and § 3348 in terms of what a statute
or regulation “require[s],” in both instances the modifier
“only” emphasizes the singularity or exclusivity of the action
G & , to the person discussed, be it “only the President” or “only
that officer.”
See Gustafson v. Alloyd Co.
,
Moreover, applying the plain meaning of “only that officer,” which narrows the scope of the Ratification Bar, will not render subsection (e) of § 3348 superfluous. Subsection (e) lists officers who are exempt from § 3348, including its Ratification Bar. But Congress’s choice not to exempt an officer from § 3348 while also narrowly defining which “functions and duties” are unratifiable is not irrational, even if Plaintiffs thought the distinction more significant. After all, the Ratification Bar is a severe restriction. Similarly, whether an action is a “function or duty” under § 3348, the only section this definition applies to, is a question a court need not address if the officer is listed in § 3348(e). An officer’s absence from § 3348(e), however, does not mean that any action taken in violation of the FVRA is necessarily subject to § 3348(d). The inquiry whether an action constitutes a “function or duty” under § 3348 is *22 distinct, meaning our interpretation in no way renders § 3348(e) surplusage.
Next, interpreting “function or duty” in § 3348 to include
only nondelegable duties does not alter § 3347(b)’s dictate
regarding
general
vesting-and-delegation
statutes.
Subsection 3347(a)(1) provides that the FVRA is the
exclusive means for appointing Acting officials “unless a
statutory provision expressly authorizes the President, a
court, or the head of an Executive department” to designate
the acting officer, or a separate statute designates the acting
officer. Section 3347(b) provides, “Any statutory provision
providing general authority to the head of an Executive
agency . . . to delegate duties statutorily vested in that
agency head to, or to reassign duties among, officers or
employees of such Executive agency, is not a statutory
provision to which subsection (a)(1) applies.” Therefore,
§ 3347(b) clarifies that general vesting-and-delegation
statutes are not sufficient to authorize the department to
choose the acting officer under the FVRA, but this does not
impact the meaning of “function or duty” in § 3348.
[6]
See
Arthrex
,
Lastly, the Center incorrectly argues that “[m]any duties
that are established by regulation are delegations,” so the
definition of “function or duty” under § 3348(a)(2)(A) must
include delegable duties. This conclusion is wrong.
Section 3348(a)(2)(B)
uses
similar
language
as
§ 3348(a)(2)(A) but defines “function or duty” in terms of
those “required by . . .
regulation
to be performed by the
applicable officer (and only that officer).” 5 U.S.C.
§ 3348(a)(2)(B)(i)(II) (emphasis added). What logically
follows from the structure of § 3348(a)(2) is that even if a
statute does not make a duty nondelegable, an agency can tie
its own hands by doing so in a regulation.
See Stand Up for
Cal.! v. U.S. Dep’t of the Interior
,
[8] The dissent tries to have it both ways, at once arguing that we read the parenthetical in isolation, but also faulting us for recognizing that our interpretation will not frustrate the FVRA’s statutory scheme. Diss. Op. 52, 57. Though the dissent argues that “[w]hether other statutes [such as the APA] may provide means of redress” to enforce the FVRA “says nothing about the correct interpretation of the FVRA,” we disagree. Diss. Op. 57. First, this case was brought under the APA, so consideration of that statute in conjunction with the FVRA is, at a minimum, “our task.” Diss. Op. 57. Second, that our interpretation accounts for a variety of consequences for violations of the FVRA is both supported by the plain text and sensible.
therefore determine whether the Department itself has cabined this authority.”). The Center reasons that if some duties established by regulation are “functions and duties” under § 3348, and “many” duties established by regulation *24 are delegations, then some “functions and duties” under § 3348(a)(2)(A) must be delegable. But this is a faulty syllogism, as an action that is delegable under the statutory scheme, and therefore not a “function or duty” under § 3348(a)(2)(A), could be made nondelegable by regulation, and satisfy and give independent meaning to § 3348(a)(2)(B). The practice of delegating duties by regulation does not justify interpreting “and only that officer” out of the statute Congress enacted.
If a statute’s provision “has a plain meaning or is
unambiguous, the statutory interpretation inquiry ends
there.”
CVS Health Corp. v. Vividus, LLC
,
Even had the Court in
SW General
reached the issue of
interpreting “function or duty” under § 3348,
the
interpretation would not have been determinative because
the officer at issue was the General Counsel of the NLRB,
who is exempt from § 3348.
See
5 U.S.C. § 3348(e);
SW
Gen.
,
Lastly, even assuming various department heads can delegate virtually all of their functions or duties, this does *25 not change Congress’s authority under the current statutory scheme to alter the scope of those delegations, as it has done before. See 6 U.S.C. § 624(c)(2) (“The Secretary may not delegate the authority under paragraph (1) [regarding certain emergency orders] to any official other than the Director of the Cybersecurity and Infrastructure Security Agency.”); 31 U.S.C. § 1344(d)(3) (“The authority to make *26 Mayorkas’s ratification of the Rule.
IV. CONCLUSION
For the reasons stated above, we reverse the district court’s order, which granted Plaintiffs’ motion for summary judgment and which vacated the Rule, and we remand for further proceedings.
REVERSED AND REMANDED. Johnstone, J., concurring:
When a purported acting officer serves in violation of the Federal Vacancies Reform Act of 1998, an action taken by that officer in the performance of “any function or duty” of the vacant office may be challenged. 5 U.S.C. § 3348(a)(2). Subsection 3348(d)(2) provides one especially potent remedy: it voids, and prohibits ratification of, the action. But Congress limited the application of this ratification bar to the performance of a “function or duty” that “is required . . . to be performed by the applicable officer (and only that officer).” 5 U.S.C. § 3348(a)(2)(A)(ii), (B)(i)(II).
I agree with the lead opinion’s analysis of the FVRA’s text and structure. But our analysis cannot stop there because, even after considering text and structure, the phrase “the applicable officer (and only that officer)” is ambiguous. So we must look to extrinsic evidence from our co-equal branches to determine its meaning. The best evidence of the FVRA’s history and practice resolves this ambiguity: the defined “function or duty” includes only the officer’s nondelegable duties. Therefore, § 3348(d)(2) did not prohibit the Secretary of Homeland Security’s ratification of the surety bonds rule. Accordingly, except for its conclusion ONZALES & G ONZALES B ONDS & I NS . A GENCY , I NC . V . that the meaning of the statute is plain, I concur in the lead opinion.
I. The FVRA’s definition of “function or duty” is
ambiguous.
To determine the scope of the ratification bar we must
ask: what is a function or duty “required by statute to be
performed by the applicable officer (and only that officer)”?
5 U.S.C. § 3348(a)(2)(A)(ii). One answer: a function or duty
“is required . . . to be performed by the applicable officer
(and only that officer)” when it cannot be delegated to
anyone else. Few functions and duties of federal offices are
nondelegable, so this reading gives a narrow scope to the
actions subject to § 3348(d). The lead opinion concludes that
the FVRA’s text unambiguously requires this narrower
interpretation. At least two other courts agree.
Kajmowicz v.
Whitaker
,
Other courts that find the same language unambiguous,
however, come up with a different answer: a function or duty
“is required . . . to be performed by the applicable officer
(and only that officer)” when only a single officer is vested
with the function or duty.
Asylumworks v. Mayorkas
, 590 F.
Supp. 3d 11, 22–25 (D.D.C. 2022);
Behring Reg’l Ctr. v.
Wolf
,
Whether this language is ambiguous matters because
when the text is clear, we do not look to outside evidence to
interpret it.
See NLRB v. SW Gen., Inc.
,
Wherever the line between plain meaning and ambiguity lies, in my view the text at issue falls on the side of ambiguity. The linguistic meaning of the phrase “and only that officer” does not resolve that proposition’s legal meaning in the context of the FVRA. Despite the invocation of competing definitions by the lead opinion and dissent, dictionaries fortify neither interpretation from doubt. Cf. Cabell v. Markham , 148 F.2d 737, 739 (2d Cir. 1945) (L. Hand, J.) (warning “not to make a fortress out of the dictionary”), aff’d , 326 U.S. 404 (1945). And the phrase “and only that officer” appears to be unprecedented in federal law, so there are no established usages to draw upon elsewhere in the United States Code. Cf. Antonin Scalia & Brian A. Garner, Reading Law: The Interpretation of Legal Texts 167–68 (2012) (explaining the whole-text canon). Those terms do not obviously describe nondelegable duties. Congress could have simply referred to delegation by name in § 3348, but it did not. Elsewhere, Congress used delegation only to broaden, not narrow, the FVRA’s reach. See 5 U.S.C. § 3347(b). It is no surprise that our fellow . federal courts have diverged in their interpretations of this statute. So while I agree that the lead opinion’s narrower reading of the statute’s text and structure is more likely than the alternative, it is not sufficiently clear to dismiss the dissent’s broader reading of the FVRA’s purpose. II. Legislative history supports the narrower reading.
When a statute’s meaning is not plain, we may consider
its legislative history
See Silvers v. Sony Pictures Ent., Inc.
,
402 F.3d 881, 885–86 (9th Cir. 2005) (en banc);
e.g.
,
Delaware v. Pennsylvania
, 598 U.S. 115, 138–39 (2023)
(relying in part on a Senate Report to construe the limiting
parenthetical “(other than a third party bank check)” in 12
U.S.C. § 2503). When we use legislative history to
understand linguistic usage of words in a statute, rather than
the drafters’ intent or the law’s purpose, it is just as probative
as any dictionary. Scalia & Garner,
supra
, at 388. Thus,
in our search for a statute’s meaning, legislative history may
“supply[] a well-informed, contemporaneous account of the
relevant background to the enactment.” John F. Manning,
Textualism as a Nondelegation Doctrine
, 97 Colum. L. Rev.
*29
673, 732 (1997). This is because “[c]larity depends on
context, which legislative history may illuminate,” bearing
in mind that “the search is not for the contents of the authors’
heads but for the rules of language they used.”
In re Sinclair
,
The FVRA’s primary legislative history is a Senate Report on an earlier version of the bill. See generally S. Rep. No. 105-250 (1998) (discussing the materially identical FVRA bill later enacted as part of an omnibus appropriations act). Committee reports, “which presumably are well considered and carefully prepared,” are generally more reliable than other Congressional materials that trouble skeptics of legislative history. Schwegmann Bros. v. Calvert Corp. , 341 U.S. 384, 395 (1951) (Jackson, J., concurring) (“Resort to legislative history is only justified where the face of the Act is inescapably ambiguous, and then I think we should not go beyond Committee reports.”). And while “legislative history is itself often murky, ambiguous, and contradictory,” Exxon Mobil Corp. , 545 U.S. at 568, this Senate Report speaks clearly and consistently to § 3348 and the text at issue.
The FVRA’s legislative history is particularly probative of its meaning because members of Congress are more than the authors of the statute; in the case of the Senate they are also a central audience for it. This confluence narrows any gap between linguistic conventions of the regulators and the regulated, lessening any potential notice concerns. See Amy Coney Barrett, Congressional Insiders and Outsiders , 84 U. Chi. L. Rev. 2193, 2202 (2017). Especially where the text is technical and arises from a lengthy course of dealing between the branches, evidence of legislative usage may be a more reliable guide to the words Congress chose than dueling dictionary definitions. Abbe R. Gluck & Lisa Schultz Bressman, Statutory Interpretation from the Inside—An Empirical Study of Congressional Drafting, Delegation, and the Canons: Part I , 65 Stan. L. Rev. 901, 939 (2013) (Congressional drafters “emphasized the utility ONZALES & G ONZALES B ONDS & I NS . A GENCY , I NC . V . of legislative history far more than dictionaries in resolving statutory ambiguities”).
The Senate Report’s discussion of § 3348 maps the concept of nondelegable duties onto the phrase “function or duty required to be performed by the applicable officer (and only that officer),” and therefore supports the narrower reading. It shows that the FVRA’s remedy applies only to functions and duties the law requires “only that officer” to perform, meaning they are nondelegable to other officers. While the dissent is correct that the term “nondelegable” does not appear in the statute, it appears throughout the Senate Report’s discussion of the functions and duties defined in § 3348. This statutory definition of “function or duty” discussed in the report applies equally to all subsections “[i]n this section,” 5 U.S.C. § 3348(a), including the ratification bar of § 3348(d)(2).
The report summarizes the “function or duty” definition at issue “as those functions or duties that . . . are established by statute and are required to be performed only by the applicable officer.” S. Rep. No. 105-250, at 17. It then discusses this definition in the context of the subsection providing that only the head of the agency in which the vacant office occurs “may perform any function or duty of such office.” 5 U.S.C. § 3348(b)(2). The report explains that the “function or duty” defined in § 3348(a) refers to “the non-delegable functions or duties of the officer . . . .” S. Rep. No. 105-250, at 18; see also id. (“Delegable functions of the office could still be performed by other officers or employees, but the functions and duties to be performed only by the [Presidentially appointed, Senate confirmed (“PAS”)] officer . . . could be performed solely by the head of the executive agency.”). According to the Senate Report, therefore, the phrase “functions or duties” of an office means *31 nondelegable duties of the office, which the drafters then described as “required . . . to be performed by the applicable officer (and only that officer).” Id. at 27 (text of § 3348(a)).
This definition of functions or duties was also consistently used by Senators providing additional or dissenting views. A group of five Senators worried about “an unintended shutdown of the Federal agency within which the vacancy exists due to administrative paralysis,” and requested that the legislation clarify “that the non-delegable duties we intend to have performed only by the agency head are only those expressly vested by law or regulation exclusively in the vacant position.” Id. at 31 (views of Sens. Glenn, Levin, Lieberman, Cleland, & Torricelli). And the minority urged: “It is imperative that the bill unequivocally ensure that the affected functions and duties of the office are only those that are expressly deemed nondelegable by statute or regulation.” Id. at 36 (minority views of Sens. Durbin & Akaka). [1]
Taken as evidence of linguistic usage, the legislative
history of the FVRA shows that the Senators who supported
the bill used “and only that officer” to express the
*32
what the statute should do. The dissent discerns a similar
legislative intent in the report’s criticism of
Doolin Sec. Sav.
Bank, F.S.B. v. Office of Thrift Supervision
, 139 F.3d 203
(D.C. Cir. 1998). But we cannot “give[] authoritative weight
to a single passage of legislative history that is in no way
anchored in the text of the statute.”
Shannon v. United States
,
narrower reading.
A quarter-century of practice under the FVRA by both
Congress and the Administration confirms the narrower
reading. As James Madison observed: “All new laws, though
penned with the greatest technical skill, and passed on the
fullest and most mature deliberation, are considered as more
or less obscure and equivocal, until their meaning be
liquidated and ascertained by a series of particular
discussions and adjudications.”
The Federalist
No. 37, at
236 (James Madison) (Jacob E. Cooke ed., 1961). Thus, in
separation of powers disputes generally, and appointments
disputes specifically, we may look to the “liquidation” of
ambiguous terms through government practice.
See NLRB v.
Noel Canning
, 573 U.S. 513, 525 (2014);
see also M’Culloch v. Maryland
, 17 U.S. 316, 401 (1819) (“[A]
doubtful question” of separation of powers, “if not put at rest
by the practice of the government, ought to receive a
considerable impression from that practice.”);
SEC v.
Jarkesy
,
Congress charged the Comptroller General of the United States, the head of the Government Accountability Office in the legislative branch, with monitoring executive branch *33 compliance with the FVRA. 5 U.S.C. § 3349; see Bowsher v. Synar , 478 U.S. 714, 731–32 (1986) (holding that the Comptroller General is an officer of the legislative branch). That office is thus uniquely situated to interpret the statute. Despite its position in the legislative branch it has given § 3348 the narrower reading. In a legal opinion for Senators, the General Counsel for the Comptroller General explained that the functions and duties set forth in § 3348(a)(2) “are described as non-delegable.” The Honorable Richard J. Durbin et al., B-310780, 2008 U.S. Comp. Gen. LEXIS 101, at *7–8 (Comp. Gen. June 13, 2008). “[T]he Vacancies Act[’s] focus is on specified duties and functions which under statutory or regulatory language must be performed exclusively by the incumbent of the office,” which “requires language that clearly signals duties or functions that cannot be delegated.” Id. at *11–12.
Perhaps unsurprisingly, the executive branch agrees with
this narrower reading. Still, it has taken the position
deliberately and consistently. Shortly after the FVRA’s
enactment, the Department of Justice issued an opinion
explaining that “a ‘function or duty’ is defined as any
function or duty of the PAS office that is required by statute
or regulation to be performed exclusively by the holder of
that office.” Guidance on Application of Fed. Vacancies
Reform Act of 1998,
We have refused to give formal deference to agency
interpretations of the FVRA,
Hooks v. Kitsap Tenant
Support Servs.
,
* * *
A leading commentator observes, “[f]or all the detail given to permissible types of acting officials, their tenures, and the severe consequences of violations, the Vacancies Act now appears to provide an easy workaround in many cases: delegate the tasks of the vacant office.” Anne Joseph O’Connell, Actings , 120 Colum. L. Rev. 613, 633 (2020). “[T]hese delegation practices are pervasive.” Id. at 633 n.105. The dissent is correct that under our reading the FVRA’s voidness and ratification provision does not apply to “the vast majority of actions taken by officials serving in violation of the act.” But it is not our reading of the FVRA itself that does that limiting work.
We have recognized that Congress can authorize
delegations implicitly: “as far as delegation to subordinates
is concerned, ‘[e]xpress statutory authority for delegation is
not required.’”
Frankl v. HTH Corp.
,
The cumulative evidence of the text, structure, history, and practice of the FVRA establishes that the “function or duty” definition of § 3348(a)(2) applies only to the nondelegable functions or duties of the applicable office. Therefore, § 3348(d)(2) did not prohibit ratification of the surety bonds rule.
Christen, J., dissenting:
This case requires us to decide when consequences result for violations of the Federal Vacancies Reform Act of 1998 (FVRA), the statute that limits the time temporary officials may serve in Executive Branch positions that require presidential appointment and Senate confirmation.
Congress crafted a stiff enforcement mechanism for violations of the FVRA: actions taken by officials serving in violation of the Act have no force or effect, and the Act bars later ratification of those actions. 5 U.S.C. § 3348(d)(1)–(2). Unfortunately, today’s decision renders the FVRA a near-dead letter because the court decides that the FVRA does not apply to the vast majority of actions taken by officials serving in violation of the Act. The majority reaches this conclusion by reasoning that the *36 FVRA’s integrated scheme applies only to those functions and duties that Congress expressly forbids an officer from delegating to a subordinate. In my view, this conclusion is inconsistent with the text, structure, and purpose of the FVRA, all of which make clear that the Act applies to functions and duties that Congress requires a single officer to perform and excludes functions and duties that Congress authorizes more than one officer to perform.
Turning to the subject appeal, I agree with the majority that Chad Wolf was not lawfully serving as Acting Secretary of the Department of Homeland Security (DHS) when he promulgated the surety bonds rule at the heart of the parties’ dispute. But I respectfully dissent from the majority’s decision to reverse the judgment of the district court because I conclude that the FVRA’s ratification bar prevented Wolf’s successor from ratifying the rule Wolf adopted.
I
The Constitution vests the President with the power and
duty to nominate officers of the United States, subject to the
advice and consent of the Senate. U.S. Const. art. II, § 2, cl.
2. An officer of the United States is an official who
“exercis[es] significant authority pursuant to the laws of the
United States.”
Freytag v. Comm’r
, 501 U.S. 868, 881
(1991) (quoting
Buckley v. Valeo
,
The FVRA is Congress’s latest attempt to reign in the
Executive Branch’s use of acting officers. The FVRA’s
predecessor, the Vacancies Act, dated to 1868.
See
Act of
July 23, 1868, ch. 227, 15 Stat. 168. The Vacancies Act
initially allowed temporary officers to serve for just 10 days
in most circumstances, a grace period that was later
lengthened to 30 days and then 120 days.
SW Gen.
, 580 U.S.
at 294–95. The Vacancies Act did not impose any
consequences for the Executive Branch failing to comply
with these limits, however. 15 Stat. 168. For more than
*37
a century, the Vacancies Act was understood to be the sole
means of temporarily filling vacancies in Executive offices.
Morton Rosenberg, Cong. Rsch. Serv., RL 98-892,
The
New Vacancies Act: Congress Acts to Protect the Senate’s
Confirmation Prerogative
2 (1998) (Rosenberg).
In 1973, the Department of Justice took the position that
the Vacancies Act was just
one way
of filling vacancies.
Id.
at 2–3;
see also SW Gen.
,
As the Supreme Court explained in
SW General
, the
“interbranch conflict . . . over the Vacancies Act” came to a
head in the late-1990s.
The FVRA spans 5 U.S.C. §§ 3345 to 3349. Section 3345 identifies who may serve in an acting capacity when a Senate-confirmed member of the Executive Branch dies, ONZALES & G ONZALES B ONDS & I NS . A GENCY , I NC . V . resigns, or is otherwise unable to perform her duties. Pursuant to the Act, the default replacement is the officer’s first assistant, who “shall perform the functions and duties of the office” in an acting capacity. 5 U.S.C § 3345(a)(1). Alternatively, Congress provided that the President may direct another Senate-confirmed officer, or an officer or employee who has served in their position for at least 90 days during the year preceding the vacancy and has a rate of pay of at least GS-15, to perform the functions and duties of the vacant office in an acting capacity. Id. § 3345(a)(2)–(3). Section 3346 limits the period an acting officer appointed pursuant to § 3345 may serve to 210 days from the date of the vacancy. Id. § 3346(a)(1). The 210-day period restarts if the Senate rejects a nominee. Id. § 3346(b)(1).
Section 3347(a) confirms that §§ 3345 and 3346 “are the exclusive means” for the appointment of officers to temporarily fill positions that require Senate confirmation, unless Congress expressly enacts an alternative order of succession for a given office or expressly gives the President, a court, or a department head the power to designate a different order of succession. Id. § 3347(a)– (a)(1). Of critical importance to this appeal, § 3347(b) states that the alternative order of succession referred to in § 3347(a)(1) does not include general vesting-and- delegation statutes. Id. § 3347(b) (“Any statutory provision providing general authority to the head of an Executive agency . . . to delegate duties statutorily vested in that agency head to, or to reassign duties among, officers or employees of such Executive agency, is not a statutory provision to which [§ 3347(a)(1)] applies .” (emphasis added)). In other words, the FVRA explicitly rejected the workaround position DOJ took starting in 1973 that vesting-and- delegation statutes offer another way for a subordinate to perform the duties of an agency head.
Unlike the Vacancies Act, § 3348 of the FVRA sets out two consequences for the Executive Branch’s failure to comply with §§ 3345, 3346, and 3347. When an officer serves without valid acting authority, or continues to serve beyond the time in which she has valid acting authority, *39 § 3348(d) unequivocally requires that any action taken by that officer in the performance of any function or duty of that office “shall have no force or effect.” Id. § 3348(d)(1). Second, the Act states that an action that has no force or effect under § 3348(d)(1) “may not be ratified.” Id. § 3348(d)(2).
Section 3348(a) goes on to define the functions and duties that are subject to the ratification bar:
(2) the term “function or duty” means any function or duty of the applicable office that— (A)(i) is established by statute; and (ii) is required by statute to be performed by the applicable officer (and only that officer); . . . .
Id. § 3348(a). [1] Finally, § 3349 requires the head of each Executive agency to report to the Comptroller General and to Congress all vacancies, acting officers, and nominees. Id. § 3349(a).
*40 the DHS Secretary to perform, the 2020 surety bonds rule was without force or effect and could not be ratified. The majority nevertheless concludes that Secretary Mayorkas successfully ratified the rule, reasoning that the duty to promulgate surety bonds rules was not a “function or duty” of the DHS Secretary because the Secretary was free to delegate virtually all his duties to subordinates.
II
My colleagues adopt a definition of “function or duty”
that turns what the Supreme Court has described as the Act’s
“general rule” into an exception.
SW Gen.
,
A
As a majority of this panel recognizes, the FVRA’s
definition of “function or duty” is susceptible to at least two
permissible readings. The statute provides that functions
and duties of officers requiring Senate confirmation are
those that are “required by statute to be performed by the
applicable
officer
(and
only
that
officer).”
§ 3348(a)(2)(A)(ii). The plainest reading of this text is that
where Congress directs an officer to perform a duty, and
does not also direct one or more other officers to perform it,
Congress has required that officer—and only that officer—
to perform the duty.
Require
, Black’s Law Dictionary
(6th ed. 1990) (defining “[r]equire” as “[t]o direct, order,
demand, instruct, command, claim, compel, request, need,
exact”). Several federal district courts have adopted this
reading.
See, e.g.
,
Behring Reg’l Ctr. LLC v. Wolf
, 544 F.
Supp. 3d 937, 948 (N.D. Cal. 2021);
Asylumworks v.
Mayorkas
,
Under this interpretation of the Act, the parenthetical “(and only that officer)” excludes instances in which Congress has directed more than one officer to perform a function or duty. For example, 18 U.S.C. § 2332(d) provides that “[n]o prosecution for [certain crimes against U.S. nationals that occur outside the U.S.] shall be undertaken by the United States except on written certification of the Attorney General or the highest ranking subordinate of the ONZALES & G ONZALES B ONDS & I NS . A GENCY , I NC . V . Attorney General with responsibility for criminal prosecutions” that the prosecution meets certain requirements. Because this statute directs either the Attorney General or her highest-ranking subordinate to authorize certain prosecutions, this duty is not required to be performed by the Attorney General and only the Attorney General, and it is therefore not a “function or duty” within the meaning of the FVRA.
Another plausible reading of the “function or duty”
provision, at least when the text is considered in isolation, is
the one adopted by the majority and two of our sister circuits.
See Arthrex, Inc. v. Smith & Nephew, Inc.
,
First, a specific duty may be made expressly delegable by statute. Alternatively, general vesting-and-delegation statutes allow agency heads to delegate any of their duties, so long as another statutory provision does not forbid them from doing so. Finally, we have recognized a “general presumption that delegations to subordinates are permissible in cases of statutory silence.” Frankl v. HTH Corp. , 650 F.3d 1334, 1350 (9th Cir. 2011). Because there are several ways for duties to be delegable, my colleagues’ read of the FVRA—as barring ratification of actions taken in the performance of functions or duties only where Congress has *42 expressly forbidden delegation—excludes nearly every statutory function or duty in the United States Code. This interpretation is strained, but I agree that if we were limited to consulting the text of § 3348(a)(2) alone, the statutory language could conceivably sustain it. The problem is that the structure and purpose of the FVRA confirm that the majority’s interpretation is an inferior reading of the text.
The author of the majority reads the text of § 3348(a)(2) in isolation and concludes that it unambiguously refers to functions or duties that are expressly nondelegable. But for the reasons explained, the provision is susceptible to more than one reading even when divorced from the statutory context. [2] The majority author’s conclusion also does not account for the bedrock principle that the “plainness or ambiguity” of a provision must be “determined by reference to the language itself, the specific context in which the language is used, and the broader context of the statute as a whole.” Robinson v. Shell Oil Co. , 519 U.S. 337, 341 (1997).
B
Because the meaning of “function or duty” is
“ambiguous, we must turn to the broader structure of the Act
to determine the [provision’s] meaning.”
King v. Burwell
,
576 U.S. 473, 492 (2015). “It is a fundamental canon of
statutory construction that the words of a statute must be read
in their context and with a view to their place in the overall
statutory scheme.”
FDA v. Brown & Williamson Tobacco
Corp.
,
*43
readings of “function or duty” in § 3348(a)(2), only this one
“produces a substantive effect that is compatible with the
rest of the law.”
United Sav. Ass’n of Tex. v. Timbers of
Inwood Forest Assocs., Ltd.
,
1
First, Congress’s inclusion of § 3347(b) strongly favors reading § 3348(d)(2)’s ratification bar to apply to all functions and duties that Congress has assigned to a single officer, without regard to whether a duty is delegable. In § 3347(b), Congress acknowledged general vesting-and- delegation statutes and expressly rejected the practice of relying on them to bypass the FVRA’s rules of succession. Section 3348(d) ensures that there are consequences if the rules of succession are not followed. Sections 3347(b) and 3348(d) therefore work in tandem to cabin the discretion of the Executive Branch to use acting officers.
My colleagues conclude that § 3347(b) “does not impact the meaning of ‘function or duty’ in § 3348.” I disagree. Both sections are necessary parts of the exclusive scheme Congress adopted for the Executive Branch to temporarily fill vacancies. In § 3347(b), Congress took the unusual step of anticipating that the Executive Branch might invoke general delegation authority as a loophole to circumvent the Act’s rules of succession, and expressly foreclosed the Executive Branch from doing so. The majority nevertheless concludes the very same general delegation authority enables the Executive Branch to avoid the Act’s consequences. Rather than working in tandem, the majority’s interpretation places §§ 3347(b) and 3348(d) at odds.
2
Context provides a second clue as to which reading of
“function or duty” is most consistent with the FVRA’s
statutory design. The majority holds that Congress defined
“function or duty” to include only those duties that are made
expressly nondelegable by statute, even though the terms
“delegate” or “nondelegable” do not appear anywhere in the
definition of “function or duty.” Such a glaring omission is
cause enough to second-guess the majority’s conclusion.
But the significance of the omission of “nondelegable” from
§ 3348(a)(2) is magnified by the FVRA’s use of the word
“delegate” in the immediately preceding subsection,
§ 3347(b), because we must give meaning to the variation in
word choice between the two provisions. If a statute “has
*44
used one term in one place, and a materially different term
in another, the presumption is that the different term denotes
a different idea.”
Sw. Airlines Co. v. Saxon
,
In § 3347(b), Congress explicitly used the word
“delegate”; accordingly, we presume that the words in
§ 3348(a)(2)(A)(ii)—that a function or duty is one “required
by statute to be performed by the applicable officer (and only
that officer)”—do
not
mean that the functions and duties that
may not be ratified are limited to those that Congress has
affirmatively deemed nondelegable. Congress’s use of
“delegate” in § 3347(b) “shows that when Congress
intended to” refer to delegable duties, “it knew how to do
so.”
Custis v. United States
,
3
A third rule that counsels against my colleagues’
interpretation is that we must not adopt a reading that renders
an ambiguous provision “almost a nullity.”
Hernandez v.
Williams, Zinman & Parham PC
,
Undeterred, the majority insists it “does not leave the
FVRA toothless” because actions not subject to the
ratification bar under the majority’s interpretation of
“function or duty” “can still be found without legal force
based on other provisions of the FVRA” and “remain
ONZALES & G ONZALES B ONDS & I NS . A GENCY , I NC . V . voidable on other grounds.” But the majority fails to identify
what other statutory basis exists in the FVRA that allows
courts to find actions “voidable.” The cases the majority
cites do not support its position because each of them
expressly states that whether the agency’s action was
voidable was not at issue.
See SW Gen.
,
My colleagues speculate that their interpretation of “function or duty” might not wind up frustrating the FVRA’s remedial scheme because, depending on the circumstances, the Administrative Procedure Act might invalidate agency actions taken by improperly serving officers. This sidesteps our task, which is to interpret the statute before us and to adopt a permissible reading that allows it to be understood as a harmonious whole. Whether other statutes may provide means of redress says nothing about the correct interpretation of the FVRA.
The concurrence relies on legislative history contained in a Senate committee report addressing a prior version of the bill that became the FVRA, and concludes that the report supports the majority’s reading of “function or duty.” See S. *46 a scenario not raised by the present case. [4] See id. at 17–18.
The reference the concurrence calls out demonstrates that Congress knew precisely how to refer to nondelegable duties, and yet it did not use those words in the text § 3348(a)(2). When the Federal Circuit considered the meaning of “function or duty” in the FVRA, it noted the same language in the Senate report. Arthrex , 35 F.4th at 1336–37. Far from conclusive, the Federal Circuit found that the references to nondelegable duties in the Senate *47 acting director of OTS initiated administrative enforcement proceedings against a bank and resigned two and a half years later, before adopting an administrative law judge’s recommended decision. Id. The President invoked the Vacancies Act to name a new acting director, and that director issued a final opinion and cease and desist order against the bank. Id. The bank appealed and argued that the cease and desist order was void because the first acting director—who initiated the enforcement action—was not appointed pursuant to the Vacancies Act and because the second acting director—who signed the final order—was appointed after the President’s authority under the Vacancies Act had expired. Id. at 207, 211. The D.C. Circuit held that the second acting director was validly appointed pursuant to the Vacancies Act. Id. at 211. The court further held that any violation of the Vacancies Act with respect to the first acting director was harmless because the second acting director ratified his predecessor’s initiation of the enforcement action when he issued the final cease and desist order. Id. at 211, 214.
The Senate report makes plain the committee’s reaction to Doolin ’s ratification holding: “if any subsequent acting official or anyone else can ratify the actions of a person who served beyond the length of time provided by the Vacancies Act, then no consequence will derive from an illegal acting designation.” S. Rep. No. 105-250, at 8. The Senate report explains that the committee included the ratification bar in the FVRA because it was “concerned that the ratification approach taken by the court in Doolin would render enforcement of the [FVRA] a nullity in many instances.” Id. at 20. Thus, if the legislative history in the Senate report is considered, it does not support the majority’s conclusion that the Act permits end runs around the ratification bar. To the contrary, because the function at issue in Doolin was one the OTS director could have delegated to a subordinate, the committee’s intent to overrule Doolin makes clear that it could not have intended the ratification bar to be limited to only those actions taken in the performance of nondelegable duties. [5]
*48 obtained his purported authority when the outgoing director “delegated to him ‘all the powers of the Director’” pursuant to § 1462a(h)(4)(A)(ii). Doolin , 139 F.3d at 211. Thus, the acting director who initiated the enforcement action in Doolin was exercising a delegable function. Yet, under the majority’s view, the FVRA’s ratification bar still would not prevent ratification of that acting director’s actions.
Our analysis should be grounded in the Act’s text and structure. The permissible reading of “function or duty” that allows the FVRA’s provisions to work together is also the plainest reading of the words Congress used: when officials improperly serve in positions that require presidential appointment and Senate confirmation, the FVRA bars ratification of actions those officials take in performing any function or duty that Congress required a single officer to perform.
C
This reading of the ratification bar is further confirmed
by “the context in which [the FVRA] was enacted and the
purposes it was designed to accomplish.”
Jones v. R.R.
Donnelley & Sons Co.
,
With this context, the clear purpose of the FVRA is to allow for the limited use of acting officers while strengthening protection of the Senate’s advice-and-consent role, in part by encouraging the advancement of nominees by adding consequences for the Executive Branch’s noncompliance. See SW Gen. , 580 U.S. at 295–96. To further this purpose, the ratification bar must extend to the duties Congress grants to a single officer—and not to those ONZALES & G ONZALES B ONDS & I NS . A GENCY , I NC . V . functions and duties granted to multiple officers. The majority’s limitation of the ratification bar to only those duties that Congress expressly deems nondelegable guts the FVRA. See N.Y. State Dep’t of Soc. Servs. v. Dublino , 413 U.S. 405, 419–20 (1973) (“We cannot interpret federal statutes to negate their own stated purposes.”).
At least some agencies have applied the majority’s
interpretation of the FVRA to continue operating as if the
statute had never been enacted. For example, when there
have been vacancies in both the Director and Deputy
Director positions in the United States Patent and Trademark
Office (USPTO), the agency has used the Commissioner of
Patents to perform the duties of the Director and explained
that the Commissioner “has not been, and need not be,
appointed ‘Acting Director’ of the USPTO under the
[FVRA].”
[6]
Though Congress required only the Director to
perform these duties,
see, e.g.
, 35 U.S.C. § 3(a)(2)(A), the
USPTO asserted that it need not comply with the FVRA
because compliance with the Act “is only needed” when
there are duties “that are exclusive to that particular [Senate-
confirmed] Officer” and “[a]ll of the Director[’s] duties . . .
are delegable (i.e., non-exclusive) duties.”
[7]
Other agencies
have adopted a similar practice.
See, e.g.
,
Bullock v. U.S.
Bureau of Land Mgmt.
,
Notes
[1] Judge Johnstone concurs in this opinion, except for its conclusion that the meaning of the statute is plain and unambiguous. Con. Op. 33–34. § 3348(a)(2). Thus, we hold that the district court erred in granting Plaintiffs’ motion for summary judgment because the FVRA did not bar Secretary Mayorkas from ratifying the Rule, and that ratification cured any defects in the Rule’s 2020 promulgation. I. BACKGROUND Article II of the Constitution gives the President the authority to appoint “Officers of the United States,” but
[2] The NPP was renamed CISA in November 2018. Cybersecurity and Infrastructure Security Agency Act of 2018, Pub. L. No. 115-278, § 2202, 132 Stat. 4168, 4169 (2018) (codified at 6 U.S.C. § 652). The position Under Secretary for the NPP refers to the Director of the CISA. 6 U.S.C. § 652(b)(3).
[3] The parties consented to the jurisdiction of a United States Magistrate Judge pursuant to 28 U.S.C. § 636. authorities.” In August 2021, Plaintiffs amended their complaint to state that Secretary Mayorkas did not have the authority to ratify Wolf’s promulgation of the Rule, but the government nonetheless moved to dismiss the amended complaint under Federal Rule of Civil Procedure 12(b)(6). In denying the government’s motion to dismiss the amended complaint, the district court held that Wolf had never lawfully held the title of “Acting Secretary” and that Secretary Mayorkas’s ratification of the Rule was barred by “the FVRA’s plain and unambiguous language,” the Ratification Bar. In May 2022, Plaintiffs moved for summary judgment on the issue whether the “Rule was lawfully promulgated.” The district court granted Plaintiffs’ motion predominantly for the same reasons it had earlier denied the government’s 12(b)(6) motion to dismiss the amended complaint. On the question whether Wolf was validly appointed as Acting Secretary, the district court found that Secretary Nielsen failed properly to amend the order of succession, rendering McAleenan’s and Wolf’s purported ascension to Acting Secretary invalid and their service improper. On the question whether Secretary Mayorkas’s ratification cured the defect, the district court echoed its previous order and held that the FVRA barred ratification of the improperly promulgated Rule. The district court granted Plaintiffs’ motion for summary judgment and vacated the Rule. The
[4] Judge Fisher’s concurring opinion in
Kajmowicz
articulated an
additional requirement to conclude an action is not a “function or duty”
under § 3348: that the authority for that action not just be delegable but
have been previously delegated.
Kajmowicz
,
[5] Section 3348(e) provides a list of officers to whom that section,
including the Ratification Bar, does not apply. The Secretary of
Homeland Security is not among those officers.
As we have explained, not “every violation of the FVRA
will result in the invalidation of the challenged agency
action.”
Hooks v. Kitsap Tenant Support Servs., Inc.
, 816
F.3d 550, 564 (9th Cir. 2016) (dismissing the NLRB’s
petition “for lack of proper authorization” by Acting General
Counsel, even though he was exempt from § 3348). And yet,
even where functions and duties performed in violation of
the FVRA fall outside of the scope of § 3348, those actions
are “
voidable
, not void.”
Id.
(quoting
SW Gen., Inc. v.
NLRB
,
[6] The distinction between § 3347 and § 3348 is further supported by the
phrase “In this section,” which introduces the definition of “function or
duty” in § 3348(a)(2). As we have 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.”
Hooks
,
[7] In fact, § 3347(b) addresses a specific past practice of the executive
branch. Until Congress enacted the FVRA, the Department of Justice
maintained that its general “vesting-and-delegation authority . . .
permit[ted] the Attorney General to reassign the duties of such Senate-
confirmed positions to other officials of the Department, outside the
limits of the Vacancies Act.” The Vacancies Act,
[9] We recognize the Supreme Court did not reach the issue whether
§ 3348(e)(1) renders the actions of an improperly serving Acting NLRB
General Counsel voidable because the NLRB did not seek certiorari on
that issue.
See SW Gen.
,
[1] The Committee reported the bill by a vote of 9-1, with Senators Cleland, Glenn, Levin, and Lieberman joining the majority in voting Yea. Senator Durbin was the only member voting Nay. S. Rep. No. 105- 250, at 11. The Senate failed to invoke cloture on the original version of the Act by a vote of 53-38, with Senators Akaka, Cleland, Durbin, Glenn, Levin, and Lieberman voting Nay after several of them objected to their inability to make amendments unrelated to the nondelegable duty issue. 105 Cong. Rec. 22526 (1998). A month later a Conference Committee reported the Act in an omnibus appropriations bill. H.R. Rep. 108-825, at 633–38 (1998). The House agreed to the conference report by a vote of 333-95, and the Senate agreed to it by a vote of 65-29. 105 Cong. Rec. 22347–48, 27483 (1998). nondelegable function or duty meaning that we apply today. The Senators who expressed concerns about the FVRA agreed, but worried that the text did not express that reading unambiguously, an observation the dissent and I share. The plaintiffs and amicus the Center for Constitutional Accountability make general claims about the FVRA’s purpose, rooted in part in the Senate Report’s summary of the bill, to support their broader reading of § 3348. Yet assertions that the purpose of the FVRA is to limit the President’s power under the Appointments Clause do not prove how, exactly, its text does so. Legislative history is most reliable to prove what statutory text may mean, not
[1] I focus primarily on the ratification bar at § 3348(d)(2) because that is
the dispositive provision in this case. However, the majority’s
interpretation of “function or duty” equally limits § 3348(d)(1)’s
requirement that actions taken in violation of the FVRA have “no force
or effect,”
i.e.
, they “are void
ab initio
.”
SW Gen.
,
[2] The third member of our panel agrees that § 3348(a)(2) is ambiguous. The FVRA’s provisions work together to restrict the Executive Branch’s discretion to allow officials to serve in Senate-confirmed positions without actually receiving Senate confirmation. The Act allows limited use of acting officers, but the consequences Congress imposed for violating the FVRA incentivize the nomination of permanent officials who are subjected to the Senate confirmation process. Three separate aspects of the FVRA’s statutory design support the conclusion that “function or duty” of a vacant office refers to duties that Congress directs a single officer to perform, and excludes duties that Congress directs more than one officer to perform. Of the permissible
[3] These courts did not consider the meaning of the ratification bar because the General Counsel of the NLRB is one of several offices the FVRA exempts from the penalty provisions of § 3348(d). § 3348(e)(1). Rep. No. 105-250 (1998). Although the Senate report refers to nondelegable functions and duties, it does so in reference to a different subsection of the bill, § 3348(b), that addresses
[4] Section 3348(b) requires that a Senate-confirmed agency head take on
all functions and duties of a vacant subordinate office unless an acting
officer fills the vacant subordinate office pursuant to the FVRA’s
succession rules. 5 U.S.C. § 3348(b). The Senate report contemplates,
however, that the functions and duties the agency head must perform are
limited to “the non-delegable functions or duties of the [subordinate]
officer.” S. Rep. No. 105-250, at 18. The report reflects the concerns of
committee members who worried that “administrative paralysis” would
result if an agency head were forced to perform the numerous delegable
functions and duties of vacant subordinate offices. S. Rep. No. 105-250,
at 31. When addressing the duties subject to the ratification bar, the
Senate report makes clear that the committee was treating the situation
in the present case—where
the agency head
lacks valid acting
authority—differently from a situation where a subordinate officer lacks
valid acting authority pursuant to § 3348(b). The Senate report states
that when one who, “not being the agency head” “perform[s]
nondelegable duties of” a subordinate office—in violation of
§ 3348(b)—the ratification bar applies.
Id.
at 19. But it also provides,
without limitation, that “the successor in the office by virtue of his
appointment by the President by and with the advice and the consent of
the Senate may not ratify the actions of a person who filled the office in
violation of the legislation’s provisions.”
Id.
report merely revealed the “competing narratives in the
legislative history.”
Id.
at 1337.
The concurrence nevertheless sees unequivocal support
for the majority’s interpretation in the Senate report,
overlooking that the report leaves no doubt that the Senate
committee’s unambiguous aim was to avoid the very result
that the majority urges here. Specifically, the report explains
that the FVRA was intended “[t]o ensure an effective
enforcement mechanism and to overturn the recent decision
of the United States Court of Appeals for the District of
Columbia Circuit in
Doolin Security Savings Bank v. Office
of Thrift Supervision
, 139 F.3d 203 (D.C. Cir. 1998).” S.
Rep. No. 105-250, at 11. In
Doolin
, the D.C. Circuit
addressed a challenge to an order issued by the now-defunct
Office of Thrift Supervision (OTS).
[5] OTS’s authorizing statutes vested in the director the “power to enforce” the agency’s statutes and regulations, 12 U.S.C. § 1464(d)(1)(A) (1994), and to “issue such orders” as necessary, 12 U.S.C. § 1462a(b)(2) (1994). Just as with DHS in this case, Congress permitted the OTS director to “delegate to any employee, representative, or agent any” of the director’s powers. Id. § 1462a(h)(4)(A)(ii). Indeed, the first acting director
[6] See Notice of Delegation of Functions and Duties at the USPTO , U.S. Pat. & Trademark Off. (Nov. 22, 2013), www.uspto.gov/trademarks/trademark-updates-and- announcements/notice-delegation-functions-and-duties-uspto [https://perma.cc/77BE-CS8J] (USPTO Notice).
[7] USPTO Notice. delegation authority to perform the duties of the vacant Director’s office). This is the precise end-run that § 3347(b) was enacted to prevent.
[8] I recognize that the ratification bar is a harsh consequence and that the interpretation I advance has the potential to imperil many agency actions if an official has served in violation of the Act. I also recognize that the
[8] The concurrence notes that Professor Anne Joseph O’Connell has written that broad delegations of authority “appear[] to provide an easy workaround” to the FVRA. Anne Joseph O’Connell, Actings , 120 Colum. L. Rev. 613, 633 (2020). But Professor O’Connell explained that she only “treats [agencies’ delegation practices] as permissible (though not necessarily desirable) under the” FVRA because they “are pervasive and have largely been upheld by the limited courts to consider them.” Id. at 633 n.105. Professor O’Connell’s careful observation about Executive Branch practice and the nascent state of the relevant caselaw did not endorse of agencies’ circumvention of the FVRA nor analyze the Act’s definition of “function or duty.” few notable exceptions, but officials serving in violation of the Act have not been common. D With the meaning of “function or duty” in hand, the outcome of this appeal is straightforward. Chad Wolf was without authority to issue the surety bonds rule because he was not properly acting as DHS Secretary under the FVRA. Congress directed only the DHS Secretary to promulgate surety bond rules. 8 U.S.C. § 1103(a)(3). The issuance of surety bonds rules is a “function or duty” of the DHS Secretary within the meaning of § 3348(a)(2), so it follows under § 3348(d) that Wolf’s promulgation of the surety bonds rule was without force or effect and could not be ratified by Wolf’s successor. III I would affirm the district court’s order granting Plaintiff-Appellees’ motion for summary judgment. Accordingly, I respectfully dissent.