Hooks v. Kitsap Tenant Support Servs., Inc.

• Decision Date: 07 March 2016
• Docket Number: No. 13–35912.,13–35912.
• Citation: 816 F.3d 550
• Parties: 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.
• Court: U.S. Court of Appeals — Ninth Circuit

816 F.3d 550

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.

Argued and Submitted July 7, 2015.

Filed March 7, 2016.

Richard F. Griffin, Jr., Elinor L. Merberg, Jennifer Abruzzo, Laura T. Vazquez, Barry J. Kearney, Ruth E. Burdick (argued), and Jayme L. Sophir, National Labor Relations Board, Washington, D.C., for Petitioner–Appellant.

Gary Lofland (argued), Mark Watson, Meyer, Fluegge & Tenney, P.S., Yakima, WA, for Respondent–Appellee.

Before: JACQUELINE H. NGUYEN and MICHELLE T. FRIEDLAND, Circuit Judges and CORMAC J. CARNEY,^* District Judge.

OPINION

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." U.S. Const. art. II, § 2, cl. 2

. This appeal requires us to consider the President's ability to temporarily fill vacancies in offices of the Executive branch that ordinarily require Senate confirmation. In particular, the parties contest the proper interpretation of the Federal Vacancies Reform Act ("FVRA"), 5 U.S.C. § 3345 et seq., as it relates to the appointment of the former Acting General Counsel of the National Labor Relations Board ("NLRB" or "Board").

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. 29 U.S.C. § 153(a)

. The National Labor Relations Act ("NLRA") also provides that the Board shall have a General Counsel. Id. § 153(d). This President-appointed, Senate-confirmed officer is tasked with the Board's prosecutorial functions. Id. These functions include authorizing the investigation of unfair labor practice charges and issuing complaints on behalf of the Board as a result of such investigations. Id.

On June 20, 2010, former NLRB General Counsel Ronald Meisburg resigned, and President Obama designated Solomon as Acting General Counsel pursuant to § 3345(a) of the FVRA. President Obama subsequently nominated Solomon to the position of General Counsel on January 5, 2011, 157 Cong. Rec. S69 (daily ed. Jan. 5, 2011), but the Senate returned the nomination, 159 Cong. Rec. S17 (daily ed. Jan. 3, 2013). The President later resubmitted Solomon's nomination, 159 Cong. Rec. S3884 (daily ed. May 23, 2013), but then withdrew it, 159 Cong. Rec. S6263 (daily ed. Aug. 1, 2013), and nominated Richard Griffin, who was confirmed on October 29, 2013, 159 Cong. Rec. S7635 (daily ed. Oct. 29, 2013). Solomon served in the role of Acting General Counsel from June 21, 2010 until November 4, 2013, when Griffin took office. See Press Release, National Labor Relations Board, Richard F. Griffin, Jr. Sworn In as NLRB General Counsel (Nov. 4, 2013), available at https://www.nlrb.gov/news-outreach/news-story/richard-f-griffin-jr-sworn-nlrb-general-counsel.

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), 29 U.S.C. § 160(j)

, of the NLRA. Section 10(j) provides: "The Board [has] power, upon issuance of a complaint ... to petition any United States district court ... for appropriate temporary relief or restraining order." 29 U.S.C. § 160(j). The purpose of a 10(j) injunction is to afford interim relief and to "protect the integrity of the collective bargaining process" while the Board processes an unfair labor practice complaint. Small v. Avanti Health Sys., LLC, 661 F.3d 1180, 1187 (9th Cir.2011) (quoting McDermott v. Ampersand Pub., LLC, 593 F.3d 950, 957 (9th Cir.2010) ).

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 Rule 12(b)(1)

or Rule 12(b)(6),²

Vaughn v. Bay Envtl. Mgmt., Inc., 567 F.3d 1021, 1024 (9th Cir.2009), and we may affirm on any ground supported by the record, ASARCO, LLC v. Union Pac. R.R. Co., 765 F.3d 999, 1004 (9th Cir.2014) ; Bd. of Trs. of Constr. Laborers' Pension Tr. for S. Cal. v. M.M. Sundt Constr. Co., 37 F.3d 1419, 1420 (9th Cir.1994) (per curiam). We also review de novo questions of statutory interpretation. Waste Action Project v. Dawn Mining Corp.,

137 F.3d 1426, 1428 (9th Cir.1998). We now affirm the dismissal of the 10(j) petition.

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 29 U.S.C. §§ 153(d)

, 160(j). Under this second avenue, the Board must have had a proper quorum when it delegated authority to the General Counsel, Frankl v. HTH Corp., 650 F.3d 1334, 1354 (9th Cir.2011), and the General Counsel must be validly serving. KTSS argues that neither avenue was satisfied here.

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 29 U.S.C. § 153(d)

. The FVRA, in turn, states:

(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[.]

5 U.S.C. § 3347(a)

(emphasis added).

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...