Ronald K. HOOKS, Regional Director of the Nineteenth Region of the National Labor Relations Board, for and on behalf of the National Labor Relations Board, Petitioner-Appellant, v. KITSAP TENANT SUPPORT SERVICES, INC., Respondent-Appellee.
No. 13-35912.
United States Court of Appeals, Ninth Circuit.
March 7, 2016.
816 F.3d 550
Before: JACQUELINE H. NGUYEN and MICHELLE T. FRIEDLAND, Circuit Judges and CORMAC J. CARNEY, District Judge.
Larkin met the requirements of both the Minnesota Rules of Professional Conduct and the Local Rules before seeking withdrawal. Defendants’ refusal to pay was “undoubtedly a substantial failure to fulfill an obligation to the lawyer” and “supplied good cause for withdrawal.” See Brandon, 560 F.3d at 538 (internal quotation marks omitted). Defendants’ failure to provide the firm with important information related to their defense also failed to fulfill an obligation to the firm. Moreover, the firm had warned defendants several times that if their outstanding bills were not paid, it would be required to withdraw. Finally, the record is clear that defendants were notified of the motion to withdraw. We conclude on this record that it was presumptively appropriate for Larkin to seek withdrawal.
The presumption favoring withdrawal in similar circumstances should be disregarded, however, if it would severely prejudice the client or third parties. See Brandon, 560 F.3d at 538. Such prejudicial conduct might include “waiting until the client is over a barrel and then springing a demand for payment (perhaps enhanced payment).” Fidelity, 310 F.3d at 540. Larkin did not engage in such conduct and provided defendants with notice at least four weeks prior to filing its motion to withdraw. This was “in a quiet period before trial,” over six months prior to the close of discovery, and over one year from the earliest possible trial date. See id. at 541; see also Brandon, 560 F.3d at 538 (three weeks notice to withdraw while “the case remained inactive, with no impending deadlines“).
Furthermore, the record does not show severe prejudice to any third parties from the firm‘s withdrawal. Neither party has identified any prejudice to third parties, and the plaintiffs did not oppose Larkin‘s motion before the district court nor its current appeal. While the magistrate judge “correctly noted that withdrawal would leave [defendants] without counsel, this does not amount to severe prejudice” to third parties when there are no “imminent deadlines” and defendants have time to secure new counsel. See Brandon, 560 F.3d at 538. Since a corporate entity cannot proceed pro se, the magistrate judge was aware that a delay might result. Nevertheless, the plaintiffs would be entitled to default judgment against Maid-Rite if it were unable to secure substitute counsel. See Fidelity, 310 F.3d at 541. That would expedite the case, rather than delay it. See id.; Erie Molded Plastics, Inc. v. Nogah, LLC, 520 Fed.Appx. 82, 85 (3rd Cir. 2013).
IV.
For these reasons the case is reversed and remanded to the district court.
Gary Lofland (argued), Mark Watson, Meyer, Fluegge & Tenney, P.S., Yakima, WA, for Respondent-Appellee.
FRIEDLAND, Circuit Judge:
The Appointments Clause of the Constitution authorizes the President to appoint officers of the United States “by and with the Advice and Consent of the Senate.”
The FVRA authorizes the President to temporarily appoint acting officers to fill certain vacancies without first obtaining Senate confirmation. Specifically, it sets forth the eligibility requirements for the President‘s appointees to certain acting roles and how long such appointees may serve. It also provides conditions for when an appointee may simultaneously serve as an acting officer and be the President‘s nominee for Senate confirmation to the permanent position.
Respondent Kitsap Tenant Support Services (“KTSS“) here challenges the authority of Lafe E. Solomon, the former Acting General Counsel of the NLRB, to authorize a petition for injunctive relief against KTSS after the President nominated him to the permanent position. We conclude that because Solomon served in that acting capacity while also being the nominee to the permanent position, he held his post in violation of the FVRA. Accordingly, we affirm the district court‘s dismissal of the Board‘s petition.
I
The Board consists of five members appointed by the President, by and with the advice and consent of the Senate.
On June 20, 2010, former NLRB General Counsel Ronald Meisburg resigned, and President Obama designated Solomon as Acting General Counsel pursuant to
Under Solomon‘s direction, the NLRB investigated various charges filed by a labor union that KTSS had engaged in unfair labor practices.1 Based on that investigation, Solomon issued a series of administrative complaints against KTSS, which led to a hearing against KTSS before an administrative law judge. While the administrative proceedings were pending, Ronald K. Hooks, a Regional Director of the Board, filed a petition for injunctive relief, thereby initiating the present case. The petition was filed on June 13, 2013, in the United States District Court for the Western District of Washington, pursuant to section 10(j),
KTSS moved to dismiss, arguing among other things that Solomon could not authorize the petition as Acting General Counsel because he had not been properly appointed under the FVRA. The district court agreed with KTSS and dismissed the action.
We review de novo a district court‘s dismissal of an action under either
II
To be valid, a 10(j) petition must be authorized by the Board through one of two avenues. The first is for a quorum of three Board members to directly authorize the specific 10(j) petition. The second is for the General Counsel to authorize the petition pursuant to a previous delegation of the Board‘s 10(j) authority to the General Counsel. See
The Board concedes that the first avenue was not satisfied.3 We hold that the second avenue was not satisfied either because Solomon was not properly serving as Acting General Counsel under the FVRA at the time that the petition was filed. In light of this holding, we need not reach KTSS‘s alternative argument that the Board never validly delegated its 10(j) authority to Solomon.4
A
As a preliminary matter, KTSS asserts that the NLRA provides the exclusive means for the President to appoint an Acting General Counsel. It is undisputed that Solomon‘s appointment did not satisfy the NLRA‘s conditions, and KTSS argues that this is sufficient to show that his appointment was invalid, without any need to consider the FVRA. This argument is belied by the text of the respective statutes.
The NLRA specifically provides for the temporary designation of an Acting General Counsel in the event of a vacancy. Section 3(d) of the NLRA states that the President may temporarily fill a vacancy in the office of the General Counsel and limits the term of acting service to forty days, with the possibility of a nomination-based extension.5
(a) Sections 3345 and 3346 [of the FVRA] are the exclusive means for temporarily authorizing an acting official to perform the functions and duties of any office of an Executive agency . . . for which appointment is required to be made by the President, by and with the advice and consent of the Senate, unless—
(1) a statutory provision expressly—
(A) authorizes the President . . . to designate an officer or employee to perform the functions and duties of a specified office temporarily in an acting capacity[.]
Under this provision of the FVRA, §§ 3345 and 3346 form the exclusive means for filling a vacancy in an Executive agency office unless another statute expressly provides a means for filling such a vacancy.6 Because section 3(d) of the NLRA does so, neither the FVRA nor the NLRA is the exclusive means of appointing an Acting General Counsel of the NLRB. Thus, the President is permitted to elect between these two statutory alternatives to designate an Acting General Counsel.
The Senate Report on the FVRA confirms this interpretation. The Senate Report explains that the FVRA retains the vacancy-filling mechanisms in forty different statutes, including NLRA section 3(d), and states that “even with respect to the specific positions in which temporary officers may serve under the specific statutes this bill retains, the [FVRA] would continue to provide an alternative procedure for temporarily occupying the office.” S. Rep. 105-250, 1998 WL 404532, at *17 (1998) (emphasis added).
We therefore reject KTSS‘s argument that because Solomon‘s appointment did not comply with section 3(d) of the NLRA, the appointment was necessarily invalid.
B
We turn now to whether Solomon validly held the Acting General Counsel position under the FVRA at the time the 10(j) petition against KTSS was authorized. The plain language of the FVRA leads us to conclude that he did not.
Section 3345(a) of the FVRA delineates three discrete categories of individuals who may fill a vacant Executive agency office for which a permanent appointment would require Senate confirmation:
(a) If an officer of an Executive agency (including the Executive Office of the President, and other than the Government Accountability Office) whose appointment to office is required to be made by the President, by and with the advice and consent of the Senate, dies, resigns, or is otherwise unable to perform the functions and duties of the office—
(1) the first assistant to the office of such officer shall perform the functions and duties of the office temporarily in an acting capacity subject to the time limitations of section 3346;
(2) notwithstanding paragraph (1), the President (and only the President)
may direct a person who serves in an office for which appointment is required to be made by the President, by and with the advice and consent of the Senate, to perform the functions and duties of the vacant office temporarily in an acting capacity subject to the time limitations of section 3346; or (3) notwithstanding paragraph (1), the President (and only the President) may direct an officer or employee of such Executive agency to perform the functions and duties of the vacant office temporarily in an acting capacity, subject to the time limitations of section 3346, if—
(A) during the 365-day period preceding the date of death, resignation, or beginning of inability to serve of the applicable officer, the officer or employee served in a position in such agency for not less than 90 days; and
(B) the rate of pay for the position described under subparagraph (A) is equal to or greater than the minimum rate of pay payable for a position at GS-15 of the General Schedule.
Only the first category of acting officer fills the role automatically. As described in (a)(1), “the first assistant to the office” automatically fills the vacancy as an acting officer unless someone else is appointed. See
Signaled by the phrase “notwithstanding paragraph (1),” the statute goes on to provide two ways the President may override the automatic operation of (a)(1). First, (a)(2) permits the President to designate an acting officer from the second category of eligible candidates—prior Senate-confirmed officers. Alternatively, under (a)(3), the President may designate a within-agency officer or employee, provided that the individual served in the Executive agency for not less than ninety days in the year preceding the date of the vacancy in a position with a rate of pay equal to or greater than the minimum GS-15 rate.
Were we to stop here, there would be no concern about Solomon‘s appointment. As a ten-year veteran who served as the Board‘s Director of the Office of Representation Appeals at a pay level above GS-15, Solomon seems to satisfy the criteria under (a)(3).7 But there is another part of § 3345 we must consider—specifically, § 3345(b)(1). It reads:
(b)(1) Notwithstanding subsection (a)(1), a person may not serve as an acting officer for an office under this section, if—
(A) during the 365-day period preceding the date of the [vacancy], such person—
(i) did not serve in the position of first assistant to the office of such officer; or
(ii) served in the position of first assistant to the office of such officer for less than 90 days; and
(B) the President submits a nomination of such person to the Senate for appointment to such office.
The Board argues that (b)(1) is a narrow limitation that only applies to acting officers designated under (a)(1): If (b)(1) only applies to (a)(1), as the Board argues, this provision had no effect on Solomon, who was an (a)(3)-designated acting officer. KTSS, on the other hand, argues that (b)(1) applies broadly to the whole of
1
The starting point—and, in this case, the ending point—in discerning Congress‘s intent in
The D.C. Circuit in SW Gen., Inc. v. NLRB, 796 F.3d 67 (D.C. Cir. 2015), recently addressed the identical issue of whether Solomon validly served as the NLRB‘s Acting General Counsel once he had been nominated. In SW General, after thoroughly analyzing the statutory text and legislative history, the D.C. Circuit held that
Subsection (b)(1) begins by specifying, “[n]otwithstanding subsection (a)(1), a person may not serve as an acting officer for an office under this section” if certain criteria are met.
In addition, in the context of the surrounding sections, Congress‘s use of the phrase “this section” indicates that Congress intended to refer to
The Board disputes this interpretation, arguing that because (b)(1) begins with the language “[n]otwithstanding subsection (a)(1),” (b)(1)‘s application must be limited to (a)(1). This argument is in tension, however, with the ordinary meaning of the word “notwithstanding.” See Sandifer v. U.S. Steel Corp., 571 U.S. 220, 876 (2014) (“unless otherwise defined, words will be interpreted as taking their ordinary, contemporary, common meaning” (quoting Perrin v. United States, 444 U.S. 37, 42 (1979))). The word “notwithstanding” means “in spite of.” Oxford English Dictionary, http://www.oed.com/view/Entry/128667?redirectedFrom=notwithstanding#eid; see also Merriam-Webster, http://www.merriam-webster.com/dictionary/notwithstanding (defining “notwithstanding” as “despite” or “without being prevented by“). Consistent with this definition, as well as Supreme Court guidance, we have explained that “as a general proposition . . . statutory ‘notwithstanding’ clauses” work to “sweep aside potentially conflicting laws.” United States v. Novak, 476 F.3d 1041, 1046 (9th Cir. 2007) (en banc) (citing Cisneros v. Alpine Ridge Grp., 508 U.S. 10, 18 (1993)).
Applying this definition here, “[n]otwithstanding subsection (a)(1)” simply means that (b)(1)‘s limitations control, even to the extent that (a)(1)‘s automatic directive that first assistants “shall” serve in an acting capacity may conflict with those limitations. Nothing about this textual construction indicates that (b)(1) applies only to (a)(1); it merely “sweep[s] aside [the] potentially conflicting” provisions of (a)(1). Novak, 476 F.3d at 1046; see also SW Gen., 796 F.3d at 75 (“Congress likely referenced subsection (a)(1) to clarify that its command—that the first assistant ‘shall’ take over as acting officer—does not supersede the prohibition in subsection (b)(1). But, apart from setting out an order of operations, the ‘notwithstanding’ clause has no significance for the ultimate scope of subsection (b)(1).“).10
Furthermore, adopting the Board‘s interpretation of the FVRA would result in surplusage. “It is ‘a cardinal principle of statutory construction’ that ‘a statute ought, upon the whole, to be so construed that, if it can be prevented, no clause, sentence, or word shall be superfluous, void, or insignificant.‘” TRW Inc. v. Andrews, 534 U.S. 19, 31 (2001) (quoting Duncan v. Walker, 533 U.S. 167, 174 (2001)); see also Bosley Med. Inst., Inc. v. Kremer, 403 F.3d 672, 681 (9th Cir. 2005) (“We try to avoid, where possible, an interpretation of a statute ‘that renders any part of it superfluous and does not give effect to all of the words used by Congress.‘” (quoting Nevada v. Watkins, 939 F.2d 710, 715 (9th Cir. 1991))). If (b)(1) applies only to (a)(1), which refers only to first assistants, then (b)(1)‘s reference to persons who “did not serve in the position of first assistant to the office of such officer,”
The Board argues that our reading of (b)(1) would itself render superfluous the phrase “[n]otwithstanding subsection (a)(1).” If (b)(1) limits all of (a), in the Board‘s view there is no reason for Congress to have singled out (a)(1) in particular in the “notwithstanding” clause. This argument misses the point of that clause and the effect of (a)(1). Subsection (a)(1)—and only (a)(1)—provides for a default rule, by which the first assistant automatically becomes the acting officer. The “notwithstanding” language, as used in (a)(2), (a)(3), and (b)(1), simply provides that, although that default rule exists, these other provisions still apply. Without the “notwithstanding” clause, confusion could easily arise as to whether (b)(1) has any force in light of the fact that a default rule exists. We thus disagree with the Board‘s contention that our reading deprives the “notwithstanding” clause of independent meaning.
We also disagree with the Board‘s further argument that it is “structurally implausible” that (b)(1) applies to (a)(3). Specifically, the Board argues that because (b)(1)‘s criteria for serving as an acting officer are linked to service as a first assistant, it does not make sense for an otherwise qualified senior agency official designated under (a)(3)—a subsection that has nothing to do with first assistants—to also have to satisfy the requirements of (b)(1). This argument overlooks the fact that (b)(1) does not set out general criteria for designation as an acting officer; instead, (b)(1) comes into play only when “the President submits a nomination of such person to the Senate for appointment to such office.”
The Board seems to contend in its reply brief that, even if this construction of the statute is logically plausible, Congress meant to relate only to (a)(1). Congress likely would have said “for purposes of subsection (a)(1),” instead of “notwithstanding.”
The Board, however, provides no reasons why such a scheme would be “illogical.” Indeed, it is not difficult to see why congressional concerns about “manipulation” could not have extended to prior Senate-confirmed officers and senior agency employees. A designation of a prior Senate-confirmed officer to the acting position could just as easily be used for “manipulation” as a first assistant of insufficient tenure. Such an officer may be equally ill-equipped to run a particular agency insofar as the officer, although previously Senate-confirmed, may have been confirmed to a dissimilar position in a different field.
In this regard, we find it informative that
As to senior agency employees, although the pay scale and tenure requirements of (a)(3) may ensure designees of adequate experience within the agency, Congress still could have chosen to exclude such persons from simultaneously serving as acting officers and nominees. Congress may have decided that only first assistants—rather than just any GS-15 employee—hold the requisite seniority and experience to appropriately serve in both capacities (or, perhaps more saliently, to continue serving in an acting capacity even if the nomination does not succeed, see
In any event, instead of speculating as to Congress‘s intent or second-guessing the wisdom of the statute‘s plain language, we give effect to the unambiguous words Congress actually used. See Gov‘t of Guam ex rel. Guam Econ. Dev. Auth. v. United States, 179 F.3d 630, 635 (9th Cir. 1999) (“[W]e are bound by the words that Congress actually used.“). As the Supreme Court has long held, “[i]t is our judicial function to apply statutes on the basis of what Congress has written, not what Congress might have written.” United States v. Great N. Ry. Co., 343 U.S. 562, 575 (1952).
In sum, the text of the FVRA clearly and unambiguously operates to make (b)(1) applicable to all subsections of
2
When the statutory language is unambiguous and the statutory scheme is coherent and consistent, our inquiry comes to an end, without any inquiry into legislative history. Miranda v. Anchondo, 684 F.3d 844, 849 (9th Cir. 2012). Even if we could consider the legislative history of the FVRA, however, the legislative history is inconclusive as to Congress‘s intent.
The Board attempts to support its proposed interpretation with a floor statement by the FVRA‘s chief sponsor, Senator Thompson, providing: “Under
However, a person may not serve as an acting officer if: (1)(a) he is not the first assistant, or (b) he has been the first assistant for less than 90 of the past 365 days, and has not been confirmed for the position; and (2) the President nominates him to fill the vacant office.
144 Cong. Rec. S12824 (daily ed. Oct. 21, 1998) (emphasis added). Senator Byrd‘s use of the word “however” suggests that the (b)(1) provisions restrict all of the three categories in subsection (a) that he had just described. That is, instead of simply restating “notwithstanding subsection (a)(1)” or agreeing with Senator Thompson‘s remarks about the scope of
The Board also makes various arguments based on portions of a Senate Report on an earlier version of the bill. See S.Rep. No. 105-250, 1998 WL 404532 (July 15, 1998). We agree with the D.C. Circuit that these portions of the Senate Report are “inapposite because [they] discuss[] a different version of the FVRA from the one ultimately enacted.” SW Gen., 796 F.3d at 77. The earlier version of
(b) Notwithstanding section 3346(a)(2) [which governs the length of time an acting officer may serve upon nomination], a person may not serve as an acting officer for an office under this section, if—
(1) on the date of the death, resignation, or beginning of inability to serve[] of the applicable officer, such person serves in the position of first assistant to such officer;
(2) during the 365-day period preceding such date, such person served in the position of first assistant to such officer for less than 180 days; and
(3) the President submits a nomination of such person to the Senate for appointment to such office.
S.Rep. No. 105-250, 1998 WL 404532, at *25 (emphases added). As the D.C. Circuit correctly observed, the earlier draft of subsection (b) “manifestly applie[d] to first assistants only. But the version ultimately enacted looks quite different.” SW Gen., 796 F.3d at 77. “[W]hen Congress does not adopt limiting language contained in a draft bill, such an action is ordinarily deemed evidence of Congressional intent to reject the limitation.” Nuclear Info. & Res. Serv. v. U.S. Dep‘t of Transp. Res. & Special Programs Admin., 457 F.3d 956, 962 (9th Cir. 2006). Thus, we agree with the D.C. Circuit‘s determination that “the change in phraseology weighs somewhat against the Board‘s interpretation.” SW Gen., 796 F.3d at 77.
Next, the Board argues that the purposes of the FVRA would be frustrated by our interpretation of (b)(1). The Board points again to floor statements by Senator Thompson, who said that the (a)(3) category for acting officers was added to address concerns that there may be a shortage of first assistants or Senate-confirmed officers to fill all acting positions, particularly in the early days of a presidential administration. 144 Cong. Rec. S12822. According to the Board, reading (b)(1) to apply to acting officers other than first assistants would undermine (a)(3)‘s goal of expanding the pool of potential acting officers. Our reading of (b)(1), however, does not directly limit the pool of potential acting officers. Subsection (b)(1) affects instead the pool of potential acting officers who may also be nominated for permanent posts—a separate circumstance that Senator Thompson‘s statements do not expressly address.
In a similar vein, the Board contended at oral argument that our reading of (b)(1) cannot be correct because it would “greatly . . . limit the president‘s options” in designating and nominating acting officers. But there is no indication that Congress intended to make it easier for the President to simultaneously designate as acting officers and also nominate more persons of his or her choosing. If anything, the legislative history of the FVRA suggests the opposite motivation. The Senate Report states that legislation was required to “uphold the Senate‘s prerogative to advise and consent to nominations through placing a limit on presidential power to appoint tem-
Finally, the Board contends that its interpretation of the statute is supported by guidance documents and letters from the Government Accountability Office and the Office of Legal Counsel. Neither Office is charged with administering the FVRA, however, and we give no deference to interpretations of statutes by agencies not charged with administering them. See Ass‘n of Civilian Techs., Silver Barons Chapter v. Fed. Labor Relations Auth., 200 F.3d 590, 592 (9th Cir. 2000); Parola v. Weinberger, 848 F.2d 956, 959-60 (9th Cir. 1988). In any event, for the reasons discussed, we believe the GAO‘s and OLC‘s interpretation, which accords with the Board‘s, conflicts with the plain text of the statute.
III
The parties do not dispute that our interpretation of the FVRA requires that the Board‘s 10(j) petition be dismissed for lack of proper authorization. This is not to suggest, however, that every violation of the FVRA will result in the invalidation of the challenged agency action. Although the FVRA generally renders void actions taken in violation of its provisions, see
The district court‘s dismissal of the 10(j) petition is therefore AFFIRMED.
Notes
In case of a vacancy in the office of the General Counsel[,] the President is author-
(2) Paragraph [(b)](1) shall not apply to any person if—
(A) such person is serving as the first assistant to the office of an officer described under subsection (a);
(B) the office of such first assistant is an office for which appointment is required to be made by the President, by and with the advice and consent of the Senate; and
(C) the Senate has approved the appointment of such person to such office.