SW GENERAL, INC., dоing business as Southwest Ambulance, Petitioner v. NATIONAL LABOR RELATIONS BOARD, Respondent.
Nos. 14-1107, 14-1121.
United States Court of Appeals, District of Columbia Circuit.
Argued March 10, 2015. Decided Aug. 7, 2015.
796 F.3d 67
Nos. 14-1107, 14-1121.
United States Court of Appeals, District of Columbia Circuit.
Argued March 10, 2015.
Decided Aug. 7, 2015.
Kellie J. Isbell, Attorney, National Labor Relations Board, argued the cause for the respondent. Richard Griffin, Jr., General Counsel, John H. Ferguson, Associate General Counsel, Linda Dreeben, Deputy Associate General Counsel, and Robert J. Englehart, Supervisory Attorney, were with her on brief.
Before: HENDERSON, SRINIVASAN and WILKINS, Circuit Judges.
Opinion for the Court filed by Circuit Judge HENDERSON.
KAREN LECRAFT HENDERSON, Circuit Judge:
This case involves a labor dispute between an ambulance company and its employees. We do not reach the merits of that dispute, however, because we conclude that Lafe Solomon, the former Acting General Counsel of the National Labor Relations Board (NLRB or Board), served in violation of the Federal Vacancies Reform Act of 1998 (FVRA),
I. BACKGROUND
A. VACANCY STATUTES
The FVRA is a response to what Chief Justice John Marshall called “the various crises of human affairs“—problems that arise when our Constitution confronts the realities of practical governance. M‘Culloch v. Maryland, 17 U.S. 316, 415, 4 Wheat. 316, 4 L.Ed. 579 (1819). Specifically, the Appointments Clause generally requires “Officers of the United States” to be nominated by the President “by and with the Advice and Consent of the Senate.”
Since the “beginning of the nation,” the Congress has given the President this power through vacancy statutes. Doolin Sec. Sav. Bank, F.S.B. v. Office of Thrift Supervision, 139 F.3d 203, 209-10 (D.C.Cir.1998) (citing, inter alia, Act of May 8, 1792, ch. 37, § 8, 1 Stat. 279, 281).1 The predecessor to the FVRA, the Vacancies Act, was first enacted in 1868. See Act of July 23, 1868, ch. 227, 15 Stat. 168. The Vacancies Act allowed the President to fill vacancies with temporary acting officers, subject to limitations on whom he could appoint and how long the appointee could serve. See Pub.L. No. 89-554, 80 Stat. 378, 426 (Sept. 6, 1966); Pub.L. No. 100-398, 102 Stat. 985, 988 (Aug. 17, 1988).
Presidents, however, have not always complied with the Vacancies Act. See MORTON ROSENBERG, CONG. RESEARCH SERV., 98-892 A, THE NEW VACANCIES ACT: CONGRESS ACTS TO PROTECT THE SENATE‘S CONFIRMATION PREROGATIVE 2-3 (1998). By 1998, an estimated 20% of all officers in positions requiring presidential nomination and Senate confirmation (PAS positions) were serving in a temporary acting capacity, many well beyond the time limits prescribed in the Vacancies Act. See id. at 1. Nor was the Vacancies Act particularly amenable to judicial enforcement. In Doolin, for example, we did not decide whether the acting director of the Office of Thrift Supervision lacked statutory authority because we determined that any error in his appointment was cured. See 139 F.3d at 214. We relied on thе doctrine of ratification: because the director‘s decision was later approved by a properly appointed director, any defect in his appointment was immaterial. See id. at 212-14. Our decision in Doolin, along with the President‘s appointment of Bill Lann Lee to be Acting Attorney General of Civil Rights in 1997, prompted congressional action. See Rosenberg, supra, at 1, 8.
In June 1998, Senators Fred Thompson, Robert Byrd, Strom Thurmond and others introduced the FVRA to strengthen, and ultimately replace, the Vacancies Act. See 144 CONG. REC. S6413-14 (daily ed. June 16, 1998) (statement of Sen. Thompson). The statute was framed as a reclamation of the Congress‘s Appointments Clause power. See id. at S6413 (“This legislation is needed to preserve one of the Senate‘s most important powers: the duty to advise and consent on presidential nominees.“); S.REP. NO. 105-250, at 5 (1998) (“If the Constitution‘s separation of powers is to be maintained, ... lеgislation to address the deficiencies in the operation of the current Vacancies Act is necessary. ... [T]he Senate‘s confirmation power is being undermined as never before.“). After some amendment, the FVRA was enacted in October 1998. See Pub.L. No. 105-277, div. C, tit. I, § 151.
The FVRA provides that, in the event of a vacancy in a PAS position, the “first assistant” automatically takes over in an acting capacity.
B. NLRB GENERAL COUNSEL VACANCY
Under the National Labor Relations Act (NLRA), the General Counsel of the NLRB must be appointed by the President with the advice and consent of the Senate.
In June 2010, Ronald Meisburg resigned as NLRB General Counsel. The President directed Lafe Solomon, then-Director of the NLRB‘s Office of Representation Appeals, to serve as the Acting General Counsel in Meisburg‘s stead. See Memorandum from the White House for Lafe E. Solomon (June 18, 2010). The President cited the FVRA as the authority for Solomon‘s appointment. See id. (invoking “section 3345(a) of title 5“).2 On January 5, 2011—six months into Solomon‘s temporary appointment—the President nominated him to be General Counsel. 157 CONG. REC. S69 (daily ed. Jan. 5, 2011). The Senate, however, returned Solomon‘s nomination. 159 CONG. REC. S17 (daily ed. Jan. 3, 2013). The President resubmitted Solomon‘s nomination on May 24, 2013, 159 CONG. REC. S3884 (daily ed. May 23, 2013), but ultimately withdrew it and nominated Richard Griffin instead, who was confirmed by the Senate on October 29, 2013. 159 CONG. REC. S7635 (daily ed. Oct. 29, 2013). All told, Solomon served as Acting General Counsel from June 21, 2010 to Nоvember 4, 2013.
C. BOARD PROCEEDINGS AGAINST SOUTHWEST
SW General, Inc. (Southwest) provides ambulance services to hospitals in Arizona. Its emergency medical technicians, nurses and paramedics are represented by the International Association of Fire Fighters Local I-60, AFL-CIO (Union). The most recent collective bargaining agreement be-
The Union immediately filed a ULP charge with the NLRB. Regional Director Cornele Overstreet issued a formal complaint on January 31, 2013, alleging that Southwest had unilaterally discontinued longevity payments in violation of sections 8(a)(1) and 8(a)(5) of the NLRA,
Southwest petitioned this Court for review and the Board cross-petitioned for enforcement. We have jurisdiction pursuant to
II. ANALYSIS
Southwest maintains that, as of January 2011, Acting General Counsel Solomon was serving in violation of the FVRA and, thus, the ULP complaint issued against it in January 2013 was invalid. Specifically, Southwest argues that Solomon became ineligible to serve as Acting General Counsel once the President nominated him to be General Counsel. See
A.
The key provision of the FVRA, for present purposes, is section 3345. For ease of reference, we quote the provision in full:
§ 3345. Acting officer
(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.
(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 death, resignation, or beginning of inability to serve, such person—
(i) did not serve in the positiоn of first assistant to the office of such officer; or
(ii) served in the position of first assistant to the office of such officer for less than 90 days; and
(B) the President submits a nomination of such person to the Senate for appointment to such office.
(2) Paragraph (1) shall not apply to any person if—
(A) such person is serving as the first assistant to the office of an officer described under subsection (a);
(B) the office of such first assistant is an office for which appointment is required to be made by the President, by and with the advice and consent of the Senate; and
(C) the Senate has approved the appointment of such person to such office.
(c)(1) Notwithstanding subsection (a)(1), the President (and only the President) may direct an officer who is nominated by the President for reappointment for an additional term to the same office in an Executive department without a break in service, to continue to serve in thаt office subject to the time limitations in section 3346, until such time as the Senate has acted to confirm or reject the nomination, notwithstanding adjournment sine die.
(2) For purposes of this section and sections 3346, 3347, 3348, 3349, 3349a, and 3349d, the expiration of a term of office is an inability to perform the functions and duties of such office.
Solomon became Acting General Counsel pursuant to subsection (a)(3)—the senior agency employee provision. As the Director of the Office of Representation Appeals for the previous ten years, Solomon easily met the salary and experience requirements of that subsection. See
The first independent clause of subsection (b)(1) is the clearest indication of its overall scope. That clause statеs that “a person may not serve as an acting officer for an office under this section.”
The Board‘s main argument to the contrary focuses on the first dependent clause in subsection (b)(1): “Notwithstanding subsection (a)(1).” According to the Board, the “notwithstanding” clause limits subsection (b)(1)‘s prohibition to first assistants who become acting officers pursuant to subsection (a)(1). There are several flaws with this argument. For starters, it is not what the word “notwithstanding” means. See Sandifer v. U.S. Steel Corp., 571 U.S. 220, 134 S.Ct. 870, 876, 187 L.Ed.2d 729 (2014) (“It is a fundamental canon of statutory construction that, unless otherwise defined, words will be interpreted as taking their ordinary, contemporary, common meaning.” (quotation marks omitted)). “Notwithstanding” means “in spite of,” OXFORD ENGLISH DICTIONARY (2d ed. 1989); BLACK‘S LAW DICTIONARY (10th ed. 2014)—not, as the Board would have it, “for purposes of” or “with respect to.” Here, then, the “notwithstanding” clause means “to the extent that subsection (a)(1) deviates from subsection (b)(1), subsection (b)(1) controls.” See United States v. Fernandez, 887 F.2d 465, 468 (4th Cir.1989) (proviso “‘notwithstanding any other provision of law’ ... naturally means that the [statute] should not be limited by other statutes“); ANTONIN SCALIA & BRYAN A. GARNER, READING LAW: THE INTERPRETATION OF LEGAL TEXTS 126 (Thompson/West 2012) (“A dependent phrase that begins with notwithstanding indicаtes that the main clause that it introduces ... derogates from the provision to which it refers.“). The 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). See Kucana v. Holder, 558 U.S. 233, 238-39 n. 1, 130 S.Ct. 827, 175 L.Ed.2d 694 (2010) (“The introductory clause [‘Notwithstanding any other provision of law‘] does not define the scope of [the statute]. It simply informs that once the scope of the [statute] is determined, [it applies] regardless of what any other provision or source of law might say.“).
Context further refutes the Board‘s “notwithstanding” argument. As discussed, the Board‘s interpretation of “notwithstanding” is irreconcilable with the breadth of the words “a person” and “this section” in the remaindеr of the introductory clause. See Maracich v. Spears, 570 U.S. 48, 133 S.Ct. 2191, 2205, 186 L.Ed.2d 275 (2013) (“The provisions of a text should be interpreted in a way that renders them compatible, not contradictory.“); cf. also United States v. Emerson, 270 F.3d 203, 233 n. 32 (5th Cir. 2001) (“[W]here the preamble and the operative portion of the statute may reasonably be read consistently with each other, the preamble may not properly support a reading of the operative portion which would plainly be at odds with what otherwise would be its clear meaning.“). Indeed, the only other time section 3345 uses the phrase “a person” is in subsection (a)(2) and, there, the phrase is plainly not limited to a first assistant. Moreover, the Congress used the word “notwithstanding” several times in section 3345. See
At oral argument, the Board argued—consistent with a revised OLC opinion—that subsection (a)(1) also applies to a person who becomes first assistant after the vacancy occurs. Oral Arg. Recording 17:02-30:24; accord Designation of Acting Associate Attorney General, 25 Op. O.L.C. 177, 179-81 (2001). This interpretation, the Board contends, gives a nonsuperfluous meaning to subsection (b)(1)(A)(i). Yet, the Board‘s interpretation faces another surplusage problem. Section 3345(b)(2)(A) allows an acting officer to also be the permanent nominee if, inter alia, he “is serving as [a] first assistant.” But the current first assistant—whether he became first assistant before or after the vacancy—is necessarily serving as a first assistant. The Board‘s interpretation (which reads “person” in subsection (b) to mean “first assistant“) creates surplusage whereas Southwest‘s interpretation (which reads “person” to mean “first assistant, PAS officer or senior agency employee“) does not.
Perhaps sensing the weakness of its textual arguments, the Board falls back on legislative history and statutory purpose to support its interpretation. Its argument needs to be quite strong because, to repeat, the text of the FVRA plainly supports Southwest. See Milner v. Dep‘t of Navy, 562 U.S. 562, 572, 131 S.Ct. 1259, 179 L.Ed.2d 268 (2011) (“Those of us who make use of legislative history believe that clear evidence of congressional intent may illuminate ambiguous text. We will not take the opposite tack of allowing ambiguous legislative history to muddy clear statutory language.“); Kloeckner v. Solis, 568 U.S. 41, 133 S.Ct. 596, 607 n. 4, 184 L.Ed.2d 433 (2012) (“[E]ven the most formidable argument concerning the statute‘s purposes could not overcome the clarity we find in the statute‘s text.“). As we shall see, however, the Board‘s argument is anything but.
The Board first points to a floor statement by Senator Thompson, the chief sponsor of the FVRA. Thompson presaged the Board‘s view, stating, “Under § 3345(b)(1), the revised reference to
The Board next cites a Senate committee report to buttress its interpretation. The report states that “a first assistant who has not received Senate confirmation, but who is nominated to fill the office permanеntly, can be made the acting officer only if he has been the first assistant for at least 180 days in the year preceding the vacancy.” S. REP. NO. 105-250, at 2 (emphasis added). The committee report, however, is inapposite because it discusses a different version of the FVRA from the one ultimately enacted. Specifically, an earlier draft of subsection (b) provided:
(b) Notwithstanding section 3346(a)(2), 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 server 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.
Id. at 25 (emphases added). This version of subsection (b) manifestly applies to first assistants only. But the version ultimately enacted looks quite different. In fact, the change in phraseology weighs somewhat against the Board‘s interpretation. See Ariz. Pub. Serv. Co. v. EPA, 211 F.3d 1280, 1289 (D.C.Cir.2000) (“The fact that Congress specifically rejected language favorable to [a party‘s] position and enacted
Finally, the Board contends that Southwest‘s interpretation of subsection (b)(1) defeats the purpose behind subsections (a)(2) and (a)(3): namely, “expanding the pool of potential acting officers beyond first assistants.” Resp‘t‘s Br. 38. But accepting Southwest‘s interpretation in no way decreases the pool of peoplе eligible to be an acting officer; it merely decreases the pool of people eligible to be both the acting officer and the permanent nominee.
In short, the text of subsection (b)(1) squarely supports Southwest‘s interpretation and neither the legislative history nor the purported goal of the FVRA helps the Board. We therefore hold that the prohibition in subsection (b)(1) applies to all acting officers, no matter whether they serve pursuant to subsection (a)(1), (a)(2) or (a)(3). Because Solomon was never a first assistant and the President nominated him to be General Counsel on January 5, 2011, the FVRA prohibited him from serving as Acting General Counsel from that date forward.
B.
Having concluded that Solomon was serving in violation of the FVRA when the ULP complaint issued against Southwest, we must now determine the consequence of that violation. Southwest believes we must vacate the Board‘s order. If the violation had occurred in the typical federal office, we might agree. The FVRA renders any action taken in violation of the statute void ab initio: section 3348(d) declares that “[a]n action taken by any person who is not acting [in compliance with the FVRA] shall have no force or effect” and “may not be ratified.”
But this is not the typical case. Section 3348(e)(1) exempts “the General Counsel of the National Labor Relations Board” from the provisiоns of “section [3348],” including the void-ab-initio and no-ratification rules. See
i. Harmless Error
We first address the “rule of prejudicial error.”
The grand jury analogy in Doolin, like the doctrine of harmless error generally, focuses on the existence vel non of “prejudice[]” to the petitioner. Id. But a petitioner need not demonstrate prejudice in the first place if the alleged error is “structural” in nature. Landry v. FDIC, 204 F.3d 1125, 1131 (D.C.Cir.2000). In the grand jury context, for example, the occurrence of race or sex discrimination in the selection of grand jurors constitutes a structural error that warrants automatic reversal. See id. at 1130-31 (citing Vasquez v. Hillery, 474 U.S. 254, 261 & n. 4, 106 S.Ct. 617, 88 L.Ed.2d 598 (1986) (race); Ballard v. United States, 329 U.S. 187, 195, 67 S.Ct. 261, 91 L.Ed. 181 (1946) (sex)). In agency context, we concluded in Landry that “[i]ssues of separation of powers” are structural errors that do not require a showing of prejudice because “it will often be difficult or impossible for someone subject to a wrongly designed scheme to show that the design—the structure—played a causal role in his loss.” Id. at 1131. “[D]emand for a clear causal link to a party‘s harm” would frustrate the “prophylactic” goal of the separation of powers—i.e., “establishing high
Southwest contends that an FVRA violation is a structural error that cannot be rendered harmless by subsequent de novo review. We do not reach that question, however, because we agree with another one of Southwest‘s arguments. Specifically, the grand jury analogy from Doolin is ill-suited in this case. In a criminal proceeding, the grand jury and petit jury are similarly situated and have the same basic task: determining the defendant‘s guilt under the requisite standard of proof (“probable cause” and “beyond a reasonable doubt,” respectively). See Mechanik, 475 U.S. at 70. As such, “[a] later conviction by a petit jury supplies virtual certainty that a properly constituted grand jury would have indicted.” Landry, 204 F.3d at 1131 (emphasis added). Here, however, we lack the same certainty. The NLRB General Counsel is statutorily independent from the Board, see NLRB v. United Food & Commercial Workers Union, Local 23, 484 U.S. 112, 124, 108 S.Ct. 413, 98 L.Ed.2d 429 (1987); Sears, Roebuck, 421 U.S. at 138-39, and he has “final authority” over the issuance of ULP complaints,
ii. De Facto Officer Doctrine
The only other argument in the Board‘s supplemental brief is the de facto officer doctrine. This oft-forgotten doctrine has “feudal origins,” dating back to the 15th century. Andrade v. Lauer, 729 F.2d 1475, 1496 (D.C.Cir.1984); see also Note, The De Facto Officer Doctrine, 63 COLUM. L.REV. 909, 909 n. 1 (1963) (“The first reported case to discuss the concept of de facto authority was The Abbe of Fountaine, 9 Hen. VI, at 32(3) (1431).“). The doctrine “confers validity upon acts performed by a person acting under the color of official title even though it is later discovered that the legality of that person‘s appointment or election to office is deficient.” Ryder v. United States, 515 U.S. 177, 180, 115 S.Ct. 2031, 132 L.Ed.2d 136 (1995). In its most recent cases, however, the Supreme Court has limited the doctrine, declining to apply it when reviewing Appointments Clause challenges, see id. at 182-83, and important statutory defects to an adjudicator‘s authority, see Nguyen v. United States, 539 U.S. 69, 78, 123 S.Ct. 2130, 156 L.Ed.2d 64 (2003).
In its traditional form, the de facto officer doctrine distinguishes between “direct” and “collateral” attacks on an officer‘s authority. Andrade, 729 F.2d at 1496. A collateral attack challenges “government action on the ground that the officials who took the action were improperly in office.” Id. (emphasis added). The de facto officer doctrine bars such attacks. Id. A direct attack, by contrast, challenges “the qualifications of the officer, rather than the actions taken by the officer.” Id. (emphasis added). The de facto officer doctrine allows such attacks but they can be brought via writ of quo warranto only. Id. at 1496-97. To obtain quo warranto against a federal official, an interested party must petition the Attorney General of the United States to institute a proceeding in federal district court.
This Court has rejected the traditional version of the de facto officer doctrine. See id. at 1498-99. Direct action via quo warranto is too “cumbersome,” we explained in Andrade, and “could easily operate to deprive a plaintiff with an otherwise legitimate claim of the opportunity to have his case heard.” Id. at 1498. We disapprove of any “interpretation of the de facto officer doctrine that ... would render legal norms concerning appointment and eligibility to hold office unenforceable.” Id. Instead, we have held that collateral attacks on an official‘s authority are permissible when two requirements are satisfied:
First, the plaintiff must bring his action at or around the time that the challenged government action is taken. Second, the plaintiff must show that the agency or department involved has had reasonable notice under all the circum-
Id. at 1499. Both requirements are met here.
The first requirement, as stated in Andrade, appears on its face not to fit this case. The plaintiffs in Andrade filed a separate suit for injunctive and declaratory relief, id. at 1479, which explains the Court‘s instruction to “bring [an] action at or around the time the challenged government action is taken,” id. at 1499 (emphases added). Here, by contrast, Southwest is subject to an enforcement action brought by the NLRB. In these circumstances, we have held, a party satisfies the first Andrade requirement if it challenges an officer‘s authority as a defense to the enforcement action. See FEC v. NRA Political Victory Fund, 6 F.3d 821, 828 (D.C.Cir.1993). Of course, the ordinary rules of exhaustion and forfeiture still apply. See United States v. L.A. Tucker Truck Lines, Inc., 344 U.S. 33, 38, 73 S.Ct. 67, 97 L.Ed. 54 (1952); FEC v. Legi-Tech, Inc., 75 F.3d 704, 707 (D.C.Cir.1996). In the administrative proceedings below, Southwest raised its FVRA challenge as an exception to the ALJ decision. It therefore complied with the NLRA‘s jurisdictional exhaustion requirement. See
Nor does the Board contest that the second Andrade requirement—notice—is also satisfied here. To meet this requirement, “the agency ... [must] actually know[] of the claimed defect.” Andrade, 729 F.2d at 1499. Notice ensures that the agency has a chance to “remedy any defects (especially narrowly technical defects) either before it permits invalidly appointed officials to act or shortly thereafter.” Id.; see also Wilkinson v. Legal Servs. Corp., 80 F.3d 535, 538 (D.C.Cir.1996). Here, Southwest notified the NLRB of the defect in Solomon‘s authority by excepting to the ALJ decision. See Andrade v. Regnery, 824 F.2d 1253, 1256 (D.C.Cir.1987) (“The filing of the underlying suit ... in and of itself notified the government of appellants’ ... challenge.“). The Board does not challenge the adequacy of this notice. Moreover, the notice requirement is satisfied if the agency learns of the defect from any source, not only the petitioner. See Andrade, 729 F.2d at 1499 (“[We] do[] not require ... that the agency‘s knowledge of the alleged defect must come from the plaintiff.“). The Board has not informed us when it first became aware of Solomon‘s problematic service. We therefore cannot say that its notice of the FVRA defect was inadequate. Accordingly, we conclude that the de facto officer doctrine does not bar Southwest from challenging Solomon‘s authority.
Finally, we emphasize the narrowness of our decision. We hold that the former Acting General Counsel of the NLRB, Lafe Solomon, served in violation of the FVRA from January 5, 2011 to November 4, 2013. But this case is not Son of Noel Canning8 and we do not expect it to retro-
For the foregoing reasons, we grant the petition for review, deny the cross-application for enforcement and vacate the NLRB order.
So ordered.