NOTE: Where it is feasible, a syllabus (headnote) will be released, as is being done in connection with this case, at the time the opinion is issued.The syllabus constitutes no part of the opinion of the Court but has been prepared by the Reporter of Decisions for the convenience of the reader.See United States v. Detroit Timber & Lumber Co., 200 U. S. 321 .
SUPREME COURT OF THE UNITED STATES
NATIONAL LABOR RELATIONS BOARD v. SW GENERAL, INC., dba SOUTHWEST AMBULANCE
certiorari to the united states court of appeals for the district of columbia circuit
No. 15–1251. Argued November 7, 2016—Decided March 21, 2017
Article II of the Constitution requires that the President obtain “the Advice and Consent of the Senate” before appointing “Officers of the United States.” §2, cl. 2. Given this provision, the responsibilities of an office requiring Presidential appointment and Senate confirmation (PAS office) may go unperformed if a vacancy arises and the President and Senate cannot promptly agree on a replacement. Congress has accounted for this reality by giving the President limited authority to appoint acting officials to temporarily perform the functions of a vacant PAS office without first obtaining Senate approval.
The current version of that authorization is the Federal Vacancies Reform Act of 1998 (FVRA). Section 3345(a) of the FVRA permits three categories of Government officials to perform acting service in a vacant PAS office. Subsection (a)(1) prescribes the general rule that, if a vacancy arises in a PAS office, the first assistant to that office “shall perform” the office’s “functions and duties temporarily in an acting capacity.” Subsections (a)(2) and (a)(3) provide that, “notwithstanding paragraph (1),” the President “may direct” a person already serving in another PAS office, or a senior employee in the relevant agency, to serve in an acting capacity instead.
Section 3345 also makes certain individuals ineligible for acting service. Subsection (b)(1) states: “Notwithstanding subsection (a)(1), a person may not serve as an acting officer for an office under this section” if the President nominates him for the vacant PAS office and, during the 365-day period preceding the vacancy, the person “did not serve in the position of first assistant” to that office or “served in [that] position . . . for less than 90 days.”
The general counsel of the National Labor Relations Board (NLRB or the Board) is a PAS office. In June 2010, a vacancy arose in that office, and the President directed Lafe Solomon to serve as acting general counsel. Solomon qualified for acting service under subsection (a)(3) of the FVRA, because he was a senior employee at the NLRB. In January 2011, the President nominated Solomon to serve as the NLRB’s general counsel on a permanent basis. The Senate never took action on the nomination, and the President ultimately withdrew Solomon’s name in favor of a new candidate, whom the Senate confirmed in October 2013. Throughout this entire period Solomon served as the acting general counsel to the NLRB.
In January 2013, an NLRB Regional Director, exercising authority on Solomon’s behalf, issued an unfair labor practices complaint against respondent SW General, Inc. An Administrative Law Judge concluded that SW General had committed unfair labor practices, and the NLRB agreed. SW General sought review in the United States Court of Appeals for the District of Columbia Circuit, arguing that the complaint was invalid because, under subsection (b)(1) of the FVRA, Solomon could not perform the duties of general counsel to the NLRB after having been nominated to fill that position. The NLRB countered that subsection (b)(1) applies only to first assistants who automatically assume acting duties under subsection (a)(1), not to acting officers who, like Solomon, serve under (a)(2) or (a)(3). The Court of Appeals vacated the Board’s order. It concluded that the prohibition on acting service by nominees contained in subsection (b)(1) applies to all acting officers, regardless of whether they serve pursuant to subsection (a)(1), (a)(2), or (a)(3). As a result, Solomon became ineligible to perform the duties of general counsel in an acting capacity once the President nominated him to fill that post.
1. Subsection (b)(1) of the FVRA prevents a person who has been nominated to fill a vacant PAS office from performing the duties of that office in an acting capacity. The prohibition applies to anyone performing acting service under the FVRA. It is not limited to first assistants performing acting service under subsection (a)(1). Pp. 8–18.
(a) The text of the FVRA requires this conclusion. Pp. 8–14.
(1) Subsection (b)(1) applies to any “person” and prohibits service “as an acting officer for an office under this section.” “Person” has an expansive meaning that can encompass anyone who performs acting duties under the FVRA. See Pfizer Inc. v. Government of India, 434 U. S. 308 . And “under this section” clarifies that subsection (b)(1) applies to all of §3345: The FVRA contains cross-references to specific subsections and paragraphs. But subsection (b)(1) refers to §3345, which contains all of the ways a person may become an acting officer. The rest of the FVRA also uses the pairing of “person” and “section” to encompass anyone serving as an acting officer under the FVRA, and Congress could readily have used more specific language if it intended subsection (b)(1) to apply only to first assistants acting under (a)(1).
The dependent clause at the beginning of subsection (b)(1)—“[n]otwithstanding subsection (a)(1)”—confirms the breadth of the prohibition on acting service by nominees. In statutes, “notwithstanding” clauses show that one provision prevails over another in the event of a conflict. Here, that means that subsection (b)(1) applies even when it conflicts with the default rule in (a)(1) that first assistants “shall perform” acting duties. Pp. 8–10.
(2) The Board argues that, because the phrase “notwithstanding subsection (a)(1)” does not mention (a)(2) or (a)(3), Congress did not intend the prohibition in subsection (b)(1) to apply to people serving as acting officers under those provisions. The Board relies on the “interpretive canon, expressio unius est exclusio alterius, expressing one item of [an] associated group or series excludes another left unmentioned.” Chevron U. S. A. Inc. v. Echazabal, 536 U. S. 73 (internal quotation marks omitted).
This interpretive canon applies, however, only when “circumstances support[ ] a sensible inference that the term left out must have been meant to be excluded.” Id., at 81. A “notwithstanding” clause does not naturally give rise to such an inference; it just shows which of two or more provisions prevails in the event of a conflict. Singling out one conflict generally does not suggest that other, unaddressed conflicts should be resolved in the opposite manner. Here, the conflict between (a)(1) and (b)(1) is unique: The former uses mandatory language—the first assistant “shall perform” acting duties—while the latter identifies who “may not” serve as an acting officer. The “notwithstanding” clause clarifies that the mandatory language in subsection (a)(1) does not prevail over subsection (b)(1) in the event of a conflict. Subsections (a)(2) and (a)(3) lack that mandatory language, so the natural inference is that Congress left these provisions out of the “notwithstanding” clause because they differ from subsection (a)(1), not to implicitly exempt them from the prohibition in subsection (b)(1).
Moreover, subsection (b)(2) specifies that (b)(1) “shall not apply” to certain people who are “serving as the first assistant.” If (b)(1) applied only to first assistants, stating that limitation would be superfluous. Pp. 10–14.
(b) Because the text is clear, the Board’s arguments about legislative history, purpose, and post-enactment practice need not be considered. In any event, its arguments are not compelling.
The original draft of the FVRA contained a prohibition on nominees serving as acting officers, but explicitly limited that prohibition to first assistants. The Board argues that, when Congress revised this original draft, it made changes to give the President more flexibility to appoint acting officers and did not intend to broaden the prohibition on nominees performing acting service. The glitch in this argument is that Congress did change the prohibition on nominees performing acting service, revising it to clearly apply to all acting officers. The fact that certain Senators stated that they wanted to give the President more flexibility to appoint acting officials does not mean that they got exactly what they wanted. Nor does a statement by one of the sponsors of the FVRA—who said that subsection (b)(1) applies only to first assistants—overcome the clear text, particularly given that the very next Senator to speak offered a contradictory account of the provision.
The Board also argues that, since the FVRA was enacted, Congress has not objected when Presidents have nominated individuals who were serving as acting officers under subsection (a)(2) or (a)(3), and that the Office of Legal Counsel and Government Accountability Office have issued guidance construing subsection (b)(1) to apply only to first assistants. Relying on NLRB v. Noel Canning, the Board contends that this “historical practice” is entitled to “significant weight.” 573 U. S. ___.
“[H]istorical practice” is too grand a title for the Board’s evidence. The FVRA was not enacted until 1998, and the evidence the Board cites is not significant enough to warrant the conclusion that Congress’s failure to speak up implies that it has acquiesced in the view that subsection (b)(1) applies only to first assistants. By contrast, the Court’s decision in Noel Canning dealt with the President’s constitutional authority under the Recess Appointments Clause; an issue that had attracted intense attention from Presidents, Attorneys General, and the Senate dating back to the beginning of the Republic. Pp. 14–18.
2. Applying the FVRA to this case is straightforward. Subsection (b)(1) prohibited Solomon from continuing his service as acting general counsel once the President nominated him to fill the position permanently. The President could have appointed another person to serve as acting officer in Solomon’s place, but did not do so. P. 18.
796 F. 3d 67, affirmed.
Roberts, C. J., delivered the opinion of the Court, in which Kennedy, Thomas, Breyer, Alito, and Kagan, JJ., joined. Thomas, J., filed a concurring opinion. Sotomayor, J., filed a dissenting opinion, in which Ginsburg, J., joined.