816 F.3d 550 (9th Cir. 2016), 13-35912, Hooks ex rel. National Labor Relations Bd. v. Kitsap Tenant Support Services, Inc.

Docket Nº13-35912
Citation816 F.3d 550
Opinion JudgeMichelle T. Friedland, Circuit Judge:
Party NameRONALD 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
AttorneyRichard 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), Kellen Holgate, and Rachel Saimons, Halverson Northwe...
Judge PanelBefore: Jacqueline H. Nguyen and Michelle T. Friedland, Circuit Judges and Cormac J. Carney,[*] District Judge.
Case DateMarch 07, 2016
CourtUnited States Courts of Appeals, United States Court of Appeals (9th Circuit)

Page 550

816 F.3d 550 (9th Cir. 2016)

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

Argued and Submitted, Seattle, Washington July 7, 2015.

Page 551

[Copyrighted Material Omitted]

Page 552

Appeal from the United States District Court for the Western District of Washington. D.C. No. 3:13-cv-05470-BHS. Benjamin H. Settle, District Judge, Presiding.

SUMMARY[**]

Appointments

The panel affirmed the district court's dismissal of a petition, filed pursuant to section 10(j) of the National Labor Relations Act, providing interim injunctive relief while the National Labor Relations Board processed an unfair labor practice complaint against Kitsap Tenant Support Services, Inc., because Lafe E. Solomon could not authorize the 10(j) petition as Acting General Counsel of the Board because he had not been properly appointed under the Federal Vacancies Reform Act (" FVRA" ).

The FVRA authorizes the President to temporarily fill vacancies in offices in the Executive Branch that ordinarily require Senate confirmation. The FVRA also provides conditions for when an appointee may simultaneously serve as an acting officer and be the President's nominee for Senate confirmation as to the permanent position.

As a preliminary matter, the panel held that neither the FVRA nor the National Labor Relations Act was the exclusive means of appointing an Acting General Counsel of the Board, and thus the President was permitted to elect between the two statutory alternatives to designate an Acting General Counsel. The panel rejected Kitsap Tenant Support Services, Inc.'s argument that because Solomon's appointment did not comply with section 3(d) of the National Labor Relations Act, the appointment was invalid.

The panel held that because Solomon served as Acting General Counsel while also being the nominee to the permanent position, he held his post in violation of the FVRA. The panel agreed with the D.C. Circuit's holding in SW General, Inc. v. NLRB, 796 F.3d 67 (D.C. Cir. 2015), as to 5 U.S.C. § 3345(b)(1)'s reach, and likewise concluded that Solomon lacked the authority to serve after he was nominated.

To be valid, a 10(j) petition must be authorized by the Board either through a quorum of three Board members directly authorizing the petition, or by the Board's General Counsel authorizing the petition pursuant to a previous delegation of the Board's 10(j) authority to the General Counsel. The Board conceded that the first avenue was not satisfied. The panel held 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 10(j) petition was filed.

The panel held that the Board explicitly waived any arguments based on the FVRA's exemption clause, and it did not otherwise contest the remedy sought by Kitsap Tenant Support Services, Inc., and therefore the district court properly dismissed the 10(j) petition.

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), Kellen Holgate, and Rachel Saimons, Halverson Northwest Law Group P.C., Yakima, Washington, for Respondent-Appellee.

Before: Jacqueline H. Nguyen and Michelle T. Friedland, Circuit Judges and Cormac J. Carney,[*] District Judge.

OPINION

Page 553

Michelle T. 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 N.L.R.B. 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 N.L.R.B. General Counsel

Page 554

(Nov. 4, 2013), available at https://www.nlrb.gov/news-outreach/newsstory/richard-f-griffin-jr-sworn-nlrb-general-counsel.

Under Solomon's direction, the N.L.R.B. 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., 567 F.3d 1021, 1024 (9th Cir. 2009), and we may affirm on any ground supported by the record, ASARCO, LLC v. Union P. 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.

Page 555

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....

To continue reading

Request your trial

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT