assert her entitle me to a position that she believes she lawfully holds that is the legal question here and i would address the redress of hillary if she prevails does she get the relief she wants t v from occupying that position and it would restore missing glyph to what she believes is the status quo ante which is would it if you can't join the president what keeps him from naming someone else well the president has the power to name someone and send a name to the senate for confirmation to the question of that i show that that if she prevails that she's likely to get the really right and if you can't enjoy the president and well i think that's an open if that's an open question but not very open right you know can enjoying the president here what would prevent the president from simply naming other sure i mean i'd be i'd be happy to this question hasn't come up in a briefing and be happy to give supplemental briefing on this question was briefed a bit in the district court there are examples in this court and to you case from the circuit in jordan the president unless you can join the president here i don't see how she gets her will she gets the relief she wants because she will have an order that says that she is the acting director of the c f p be and mr moving he is not and that that can be accomplished without there that's right so to go to the merits now it's now been five months since the president since the vacancy in the president has yet to nominate a new c e o of b v director for senate confirmation both sides agreed that if president trump had not the vacancies reformat we under english would have become the rightful acting director by operation of the dodd frank god and so the question here is whether the general and permissive language of the vacancies reformat displaces the later in acted that the government makes much of this ambiguity that the statute the dot frank i use is the term unavailable libby but it's common ground between the parties that an availability covers a vacancy the office of legal counsel has concluded as such and and has done so in previous opinions as well and so the ambiguity on that question whether whether the statute applies to a vacancy i think should not be imported to other questions which is what i what is the meaning of the word shall and how clear was congress that this was a mandatory command once we get past the question whether the statute applies to a vacancy that either does or it doesn't and both parties agree that it does the question then is whether this is a mandatory command and we think up an ask something because you seem that essential to your position is that she is not only that we read dot cranky at the way you want us could write in opinion that that rules in our favor the that doesn't fine for us on that ground but i think well how would the appointment of mr mildmay not be constructive discharge from that  mean i think that's the more natural view and so let me let me try to defend the good natural of you the more natural the more natural you is what you said which is that our position depends on this so so i think this is a question of statutory construction and the question is did congress give any indication that the acting director wouldn't enjoy the four cars protection that is critical to this agency's design and that is as this court explained in p a central took to the goal that congress had for the surgeon see which is independence and it is not anomalous that in acting director or someone in this kind of position would have for cause protection the social security administration is one of the few section d they talk about director deputy director so it wasn't lost on congress that a deputy director is different from the director and if and so one just as a matter of a straightforward read the statute they left deputy director out of the any ambiguity at all that we have to go through a statute not to constrain the president's ordinary lower level ok so as to the first question this is just a question of statutory construction i think first you're trying to figure out what does the term acting director mean and i think what that means is that the acting director steps into the shoes of the director the powers privileges of the director which are referred to throughout the statute apply to the the acting director and there isn't any textual indication and i'll get to the text to indication you've suggested that congress intended this for cause protection that is really about the structural design of the agency not to apply to the deputy director now you mentioned this next  sentence after the removal for cause of the service restrictions but notice that the service restriction provision has some independent meaning when it applies to the deputy director because what that saying is in the ordinary course with the deputy director is not the acting director the deputy director also can't hold these positions in a bank so i don't think that one should draw an inference from that provision to say that there that we should have some kind of a textual limitation that withdraws the for cause protection that applies to this agency from the acting director particularly when we know that there are there are other examples like the social security administration where i think for cause removal and independence were less central  think is relevant is the federal housing finance agency and actually this question about whether for cause removal protection applies to that director an acting director there is being litigated right now in the fifth circuit  situations where out will be movable would operate with this so how can this be any different here is the statutory construction or the such very purpose for independence is protection there and that was a statute where there was no statutory for cause protection at all with that which is true of many financial regulators so i think that you know it's certainly possible to say under this one versus clinton that at that point  the term expires that the for cause protection ends with it but here we're in a situation in which we're still within that the original term the president hasn't even named a successor sent that name to the senate and so there isn't any textual reason or think any time i think constitutional of voidness certainly has a role to play but but first of all we're not in a situation in which the president has named a successor or past the term where where those kinds of constitutional concerns would would start to increase in this court is always that the supreme court has said that for cause removal protection is attached to a limited duration here i think congress intended the acting director position would be a position of limited duration and there's no reason to think it won't be here that the president has the ability to name a successor and have that person confirmed and so in the end i should just point out that the constitutional avoidance considerations point in both directions i mean it is possible on the defendant's view that a director an acting director could name a deputy and that person could remain for an indefinite period of horribles about a person who is remaining in the position in the senate does not confirm anyone and conspires to deprive a senate confirmed director that that can obtain even and there a scenario but but i think i think if there is if you conclude that there is ambiguity about this question about whether or cause removal protection applies i think the right way to analyze that question is first of all i think you know there is no textual indication that it was not intended to apply and i don't think the service restriction provision gets you there and then i think the overall purpose of this statute is very clear from this court's decision the court recognized that this statute was designed to preserve independence from presidential will above all and it is it would be quite strange for congress in designing this agency to have created the first independent financial regulator where during this transitional period the president can take over the agency as it were i mean if you look at the multi member commissions what typically happens is the senate before that before the president can name a successor the president has to say that send a name to the senate and get senate confirmation and so this would be a situation in which the very agency that congress intended to be sort of more independent super independent so much so that it raised these concerns and page age would be an agency where the president could take over immediately in the event of a vacancy and all of these attributes of independence would then actually all be in service of the opposite of what congress state rules right and we put them together and it's as if it reads the vacancy act procedures are displaced only have done so expressly that's mashing them to together what what is there in dot frank that  with this argument you recreating two alternatives right and we think the ninth circuit's decision hooks is is correctly decided to stay two statutes in another statute can exist side by side the statute there of course uses the word may and it was a pretty hefty are a statute so the question here is what did congress mean when he used the word shall i think the legislative history is helpful here congress in the house version of the dodd frank act had an explicit reference to the  shows that the express statement rule was the last thing that came in in the senate report right you're talking about the god frank legislative history on here yeah but i got that express statement rule i mean actually point out that there are fifteen other statutes involving hacking directors use the word shall and never been thought that they displace the president's authority under the well prepared a f e r a it's our now understood that those statutes can exist side by side with the f e r s but sequence i think is quite important here the question here is what intent did congress have in two thousand and ten when congress was designing an agency that was designed above all to be laws applying to personnel budget all sorts of things and i think what this is exactly right and what that means is that absent some some textual indication to the contrary those statutes and work together and can't they work together here shall does not displace the president's yes i think they do work together that's the point i was trying to make about it and i think of space the presence of where they were together in the sense the general and specific canon understands that the more specific and later an argument is it becomes an exception to the general rule and so it's not implied repeal it's just state it in this specific situation congress or both works in your eyes because  of just i want to sit down the f b i says the first assistant shall become the acting right and then the two later clauses say notwithstanding that section the president may and what that structure understands is the conventional understanding of shall and may that we needed those not withstanding clauses because otherwise that shall language would be mandatory in the dod frank at congress has used that shell language to indicate  mandatory command and it hasn't it and there's no indication that notwithstanding that mandatory command those those permissive provisions of the affair would apply to the extent your argument hinges on  right i think that the appointment of mr moore veiny highlights the the principal argument we're making the problem with how it how it destroys the statutory design the congress had for this agency but it's particularly i think notable in this regard that congress had provisions in the statute to insulate the bureau from the director of the office of management budget so there are provisions of the say that the budgets and plans necessary to decide it's necessary not to decide if you greedy with this more narrow argument that congress sought to insulate the o m b director from the c f p be and so the one person that the president you know should not have named to this position slightly you know broader argument would be that someone who serves at the pleasure of the president cannot be in this role of having this independent agency because it contravenes the the whole theory of humphrey's executor but independence certainly has standing for the same reasons that she has standing right to to bring the broader arguments because someone who who transgress is that a more narrow understanding of independence has been named and displaced her now that isn't to say that the president couldn't solve the problem by naming someone who would be inappropriate nominee and in the end that on the end but the reason that you want isn't just some sort of you know table you should have done make it easier for me i'm right here right it would be your honor bit but then that it would be up to the president to decide how he wants to respond and he has of course he still has the ability to name a senate confirmed director he would have the name of the approach the option to name someone who would be appropriate and wouldn't transgress these principles of independence but but missing list would receive should have standing in her injury would be redress civil because you would be issuing an order that would restore what we think is the status quo ante put her back in that position  predict what this president will do the only player is that they're going to be some period of time just as a matter of the way things work takes time for news to travel she would then acting director she would be acting director and the court would also be saying that you know she should have been the acting director and that this design of agency independence means something and that the president we have to be saying all that in the in the just not mr mcveigh because it would we would be saying other people who are director to the broader version of that argument is that it cannot be somebody who serves the the president at his pleasure to have to run this independent agency and you know that's never been the case an independent financial provision they did not have i have a word vacancy or verbs that indicate permanent terminations of the individual any other shot you write what i mean to go back to the our discussion of this earlier i mean this is something that's common ground between the parties use the office of legal counsel has interpreted the word it's not the word absence it's the word on availability and you know there are there are references in your previous i guess i guess you know with all due respect oh well see i have to read statutes myself and in my own stash i construction and even they admitted that well it's a bit dubious  front displacement of the federal vacancies we farm right general thing out there in congress meant for this to govern vacancy can we do that when the word vacancy is not here nor are there the equivalent terms of die resigns or is otherwise unavailable right or where the what the f e r a says dies resigns or was otherwise unable to serve right and so i think that is the best and most natural reading of that word i honestly don't know why congress tros that word as opposed to the more traditional formulations but the legislative history does show us words are known by the company they keep and i get that if you say dies resigns terminated or otherwise unavailable you're just trying to cover the bases or whatever capacity of this person is because in the situation where someone has not you know died or resigned they're going to be absent i think i mean those are the only two situations in which she would have someone acting come in right in just about every other state well and i think it's also i want to belabor this but i think the legislative history is helpful in that you know congress knew it was talking about vacancies and it had this very specific reference to the vacancies reform act it removed that reference and then put in this language and so i think in light of that history it's best understood as a they can see provision thank made please the court congress would not have intended to displace the f b i using the precise language it specified to co exist with the f b i as counsel conceded again this morning the f e r a specifically says that the f d r is exclusive unless there are other agency specific statutes that that directly designate an officer to serve that language is temporarily up temporarily temporarily unqualified it doesn't turn on when that other statute was passed where there was korea work post so just on the face of the f we are a congress has already told us that if there's an agency specific statute even one that uses the word shall be even one that's mandatory it co exist with  discharge and we do think it is correct that she doesn't have that will move all i guess i'll make a couple of points in addition to what was discussed earlier first of course is there's the fact that the removal provision only specifies the director not the acting director but there's a pretty good if you look at the holdover provision the holdover provision reference is an individual serving as director and the removal provision doesn't use that language it doesn't use the language of individual serving as director if you contrast that to the language in the social security on the removal restriction in social security act coverage of individual serving as the social security which are that if you is a independent single head of agency so there we have a very good textural contrasts that when congress wants to because those are the powers and duties of the director and the whole point of the acting director is it says that the acting director of conserve as director and exercise their powers and duties but this isn't a power duty this is a restriction or protection of the director and so the language   were little restrictions should be extended to holdovers i think all the rationales the forty for that equally apply to acting directors including the constitution commissions so i do think that would be a complete answer to this case ya but going back to disagree that acting directors have any sort in even within the same term we can go all the both the textual indications and the constitutional concerns that swung discussed apply equally for holdovers and hacking if i turned to the canons of interpretation which i think vul start actual argument there are two kinds of interpretation i think are quite relevant one is that congress legislate under the backdrop of existing law and two is that sachin should be harmonised in this case as i said the f already makes clear that agency specific vacancy statutes even when they use mandatory words like shall co exist with the the ira and so there's simply no reason to read shall as displacing all that you need to have greater language what they emphasize heavily the kind in the specific controls the judge all but it accords made clear both the supreme court and this court that hadn't applies when the specific the general are inconsistent and you need to basically create an exception so that they can be harmonised that's not necessary here you don't see that the specific crimes the general when the general already says they co exist with the specific it just doesn't make sense and that they're creating a conflict in the statute when statute on their own terms can be harmonized a turn to some of their points about control who acted as pleasure and that be perfectly permissible on the dot frankly even under their own interpretation a couple other points about independence there are that f d r way does say that the dot that it doesn't apply to president has to pick within the three deputy director but it's still the case that he gets the pick who is one of the three w directors and then whoever he picks serves at his pleasure as acting director and so all the pressures and desires to comply with his this expressively that the fact that they didn't is significant here but but doesn't that suggest that maybe the way that they did it was through the use of the word shall here well so i don't think that all your are they were signaling here is that this this is agency is a different sort of agency we want to preserve independence here and so the way that we're going to do it is we're going to the deputy director is going to become the acting director of the president is cut out of the picture so that would be a passing strange first is i think there's at least a possibility that he couldn't appoint someone who would be who could not service the director themselves so at the dock frank act specifically specifies certain people in certain jobs relationships that exclude you from being director either if there was a presidential designation but at least possibly that language would be but then if i could just bracket that language further shows why they're wrong because congress specified congress thought about who shouldn't serve as the director and congress i don't think so your honor because again the word independent this entire to that oh and the provision right there of wording dependent is at the front end saying that it's an independent establishment so anyone who picks literally any one of the f d r is not going to be independent in that sense and most of all the statute says is that they're not required to do so and they can take down that shall not be construed and use that as somehow implicitly qualifying the president's doesn't nation power down the of the ira if shallow isn't enough t don't do anything that the o m b director wouldn't do if he were in your position that would be contradicting the statute correct that it's violate the plain text of the statute i don't think so your honor the president is allowed to and acting director has no more obligation to get on the approval of a budget then the director would have you don't have an obligation to but the president can certainly remove him for doing it as again they can feed if there was a holdover or if there was no be required to do that because normally when the c f p director is serving during their term they have for cause removal but once the for the movie has gone as drawn or pointed out for holdovers and there's also the case for acting's then that just can't be the case the president isn't somehow senate confirmed zisha an include the power to tell the acting person to do nothing or do all the things that sag you said you cannot do should not do and cannot do or need not do that seems to me  prohibit it just said you're not required to and that makes perfect sense when you go for pulverizing you would agree them they that and appointing someone the president and say you're pointed on the condition that you do something a narrow point not just displacement of the f d r a wholesale but simply that reading the statutes together even under your approach there are at least seems to arise an argument as a preventive arises out of the god frank act  that your universe is narrower as a tad narrower here and the f d r a you can't do o m b director and you can do a federal reserve banking the things that are listed in the services directions i guess i'd still say the same thing though right it's not clear enough to thank you like to start with the o m b issue that my colleague left off so it is true that the statute does not expressly say the o m b director may not be the director or the acting director in so many any jurisdiction over oversight over the affairs or operations of the bureau i don't see how mr movingly can be in the bureau and not be violating that provision every day that he was there and in his congressional testimony yesterday mr moving he admitted that he performs bureau business at the o m b offices and vice versa and so this is a structural it's a specific provision intended to facilitate the overall structural f b director but then he would have to choose which job because this statute makes it very clear that the o m b cannot have jurisdiction or oversight those are congress words over this bureau and so this is that's why i said earlier this is the one person that congress made it very clear cannot be in this position in this bureau i think my colleagues argument also brought out the how extreme the government's position is that it amounts really to a magic words kind of theory that  that congress cannot displace the f b i or a in their words unless congress expresses explicitly refers to the i fear ray and says we are overriding the f d r and i think the supreme court has been very clear that that one congress cannot bind a future congress justice scalia mentions this in his treatise and in his opinion in the lockhart decision and so that is effectively what they're saying even with respect to these single director independent agencies that congress created in the wake of the f e r a where it's quite clear they used mandatory language and it's quite clear that they intended these agencies to be independent of presidential control but on their view these asians was would be less independent than the multi member commissions that preceded them like the f t c where the senate the president cannot name a successor to run those agencies and agency head without senate confirmation finally or two more points judge millette you asked my colleague about the word unavailable and i think it's telling that the reason i said earlier that the government wants to have it both ways they want to be able to read this word unavailable as we do  becomes the acting director and remains there and is controlled by the president and so i think you know i think the court should be wary of that in however it writes its opinion to ensure that the statutory design isn't turned on its head and that we don't have someone who serves at the at the pleasure of the president serving indefinitely in fact finally i would just say the purpose i think has a role here and what this court is tasked with doing here is interpret in two statutes  federal vacancies reformat the whole purpose of limiting the president's role and safeguarding the prerogatives of the senate and the dodd frank that which had an overarching purpose in creating this agency of structuring an agency that's independent of controlled presidential control and in the feet of legal alchemy they have managed to read both statutes together to maximize presidential control and indeed to allow the president to take over this engine c in a way that would not be