FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

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

D.C. No.

3:13-cv-05470-

BHS

OPINION

Appeal from the United States District Court

for the Western District of Washington

Benjamin H. Settle, District Judge, Presiding

Argued and Submitted

July 7, 2015—Seattle, Washington

Filed March 7, 2016
2 HOOKS V. KITSAP TENANT SUPPORT SERVS.

Before: Jacqueline H. Nguyen and Michelle T. Friedland, 

Circuit Judges and Cormac J. Carney,* District Judge.

Opinion by Judge Friedland

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.

 

 * The Honorable Cormac J. Carney, District Judge for the U.S. District 

Court for the Central District of California, sitting by designation.

 ** This summary constitutes no part of the opinion of the court. It has 

been prepared by court staff for the convenience of the reader.
HOOKS V. KITSAP TENANT SUPPORT SERVS. 3

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.
4 HOOKS V. KITSAP TENANT SUPPORT SERVS.

COUNSEL

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.

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 
HOOKS V. KITSAP TENANT SUPPORT SERVS. 5

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, Senateconfirmed 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. 
6 HOOKS V. KITSAP TENANT SUPPORT SERVS.

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/newsstory/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 

 

 1 A union, employer, or employee may file charges alleging unfair 

labor practices with an NLRB regional office. NLRB v. United Food & 

Commercial Workers Union, Local 23, AFL-CIO, 484 U.S. 112, 118 

(1987). Once a charge is received, the case is assigned for investigation. 

29 C.F.R. § 101.4. “After investigation, the case may be disposed of 

through informal methods such as withdrawal, dismissal, or settlement.” 

Id. If the charge “appears to have merit” and no settlement is reached,

the Regional Director “institutes formal action by issuance of a 

complaint and notice of hearing,” to take place before an administrative 

law judge. 29 C.F.R. §§ 101.8, 101.10. The power to decide whether or 

not to issue a complaint is one delegated by the General Counsel to the 

Board’s Regional Directors. NLRB v. Sears, Roebuck & Co., 421 U.S. 

132, 139 (1975).
HOOKS V. KITSAP TENANT SUPPORT SERVS. 7

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 

 

 2 KTSS’s motion to dismiss was brought pursuant to Rule 12(b)(1) for 

lack of subject matter jurisdiction or, in the alternative, Rule 12(b)(6) for 

failure to state a claim. The district court granted the motion without 

clarifying which Rule applied. We need not resolve which rule applies 

either. Whether we view the 10(j) petition’s valid authorization as a 

jurisdictional requirement or as an element of an injunctive relief claim 

that must be fulfilled for success on the merits, resolution of this appeal 

depends on whether Solomon served in violation of the FVRA. We hold 

that he did, that this means he could not validly authorize the petition, 

and that the petition was therefore properly dismissed. Because we 

always have jurisdiction to consider our own jurisdiction, we can reach 

this issue whether it is jurisdictional or not. United States v. El Dorado 

Cty., 704 F.3d 1261, 1262 (9th Cir. 2013).
8 HOOKS V. KITSAP TENANT SUPPORT SERVS.

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 

 

 3 The Board initially claimed that it “separately and independently 

authorized” the 10(j) petition in this case. The Board later conceded, 

however, that under NLRB v. Noel Canning, 134 S. Ct. 2550 (2014), it

was not properly constituted when it purportedly authorized the petition. 

In Noel Canning, the Supreme Court interpreted the Recess 

Appointments Clause, which “empowers the President to fill any 

existing vacancy during any recess—intra-session or inter-session—of 

sufficient length.” 134 S. Ct. at 2577. In addressing what constitutes 

“sufficient length,” the Court held that a recess of three days is too short 

to trigger the Clause. Id. at 2566–67. Because two of the three Board 

members serving when the present petition was purportedly authorized 

were held in Noel Canning to have invalid appointments, the threemember quorum needed to validly authorize the petition was absent. See 
HOOKS V. KITSAP TENANT SUPPORT SERVS. 9

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, 

 

id. at 2557; Board Members Since 1935, National Labor Relations 

Board, https://www.nlrb.gov/who-we-are/board/board-members-1935.

 4 KTSS also contends that Ronald K. Hooks was not validly appointed 

as a Regional Director of the Board, and that he consequently lacked the 

authority to issue the underlying administrative complaint pursuant to 

which the 10(j) petition was filed. See 29 U.S.C. § 160(j). Because the 

only decision we are reviewing is the district court’s decision to dismiss 

the 10(j) petition, and because we affirm its dismissal on the ground that 

the petition itself lacked valid authorization, we need not reach KTSS’s 

argument about the validity of the underlying administrative complaint.
10 HOOKS V. KITSAP TENANT SUPPORT SERVS.

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).

 

 5 Section 3(d) reads in relevant part:

In case of a vacancy in the office of the General 

Counsel[,] the President is authorized to designate the 

officer or employee who shall act as General Counsel 

during such vacancy, but no person or persons so 

designated shall so act (1) for more than forty days 

when the Congress is in session unless a nomination 

to fill such vacancy shall have been submitted to the 

Senate, or (2) after the adjournment sine die of the 

session of the Senate in which such nomination was 

submitted.

29 U.S.C. § 153(d).
HOOKS V. KITSAP TENANT SUPPORT SERVS. 11

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. 

 

 6 Certain positions may not be filled through the FVRA, but those 

exceptions are not applicable here. See 5 U.S.C. § 3349c.
12 HOOKS V. KITSAP TENANT SUPPORT SERVS.

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 would 

require Senate confirmation:

(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 
HOOKS V. KITSAP TENANT SUPPORT SERVS. 13

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.

5 U.S.C. § 3345(a).

Only the first category of acting officer fills the role 

automatically. As described in (a)(1), “the first assistant to 

the office” automatically fills the vacancy as an acting 

officer unless someone else is appointed. See id.

§ 3345(a)(1) (“[T]he first assistant to the office of such 

[absent] officer shall perform the functions and duties of the 

office.” (emphasis added)).

Signaled by the phrase “notwithstanding paragraph (1),” 

the statute goes on to provide two ways the President may 

override the automatic operation of (a)(1). First, (a)(2) 

permits the President to designate an acting officer from the 

second category of eligible candidates—prior Senateconfirmed officers. Alternatively, under (a)(3), the President 
14 HOOKS V. KITSAP TENANT SUPPORT SERVS.

may designate a within-agency officer or employee, 

provided that the individual served in the Executive agency 

for not less than ninety days in the year preceding the date of 

the vacancy in a position with a rate of pay equal to or greater 

than the minimum GS-15 rate.

Were we to stop here, there would be no concern about 

Solomon’s appointment. As a ten-year veteran who served 

as the Board’s Director of the Office of Representation 

Appeals at a pay level above GS-15, Solomon seems to 

satisfy the criteria under (a)(3).7 But there is another part of 

§ 3345 we must consider—specifically, § 3345(b)(1). It 

reads:

(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 [vacancy], such person—

(i) did not serve in the position 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

 

 7 For the first time on appeal, KTSS objects that the Board has not 

presented any evidence to support Solomon’s career history and rate of 

pay. We deem this objection waived because KTSS failed to raise it in

the district court. See Hormel v. Helvering, 312 U.S. 552, 556 (1941).
HOOKS V. KITSAP TENANT SUPPORT SERVS. 15

(B) the President submits a nomination of 

such person to the Senate for appointment 

to such office.

5 U.S.C. § 3345(b)(1). Subsection (b)(1) thus precludes 

someone from continuing to serve as an acting officer after 

being nominated to the permanent position, unless he or she 

had been the first assistant for ninety days of the prior year. 

The question is to whom this restriction applies.

The Board argues that (b)(1) is a narrow limitation that 

only applies to acting officers designated under (a)(1). If 

(b)(1) only applies to (a)(1), as the Board argues, this 

provision had no effect on Solomon, who was an (a)(3)-

designated acting officer. KTSS, on the other hand, argues 

that (b)(1) applies broadly to the whole of § 3345(a). Under 

KTSS’s interpretation, Solomon, who was an (a)(3) acting 

officer and who did not meet (b)(1)’s criteria, could not serve 

as Acting General Counsel once President Obama submitted 

his nomination to the Senate on January 5, 2011.8

1

The starting point—and, in this case, the ending point—

in discerning Congress’s intent in § 3345(b)(1) is the 

statutory text. BedRoc Ltd., LLC v. United States, 541 U.S. 

 

 8 This interpretation differs from that which KTSS advocated in the 

district court. There, KTSS argued that (b)(1) required all eligible 

candidates to have previously served as a first assistant for at least ninety

days in the year preceding the vacancy—an argument KTSS has since 

abandoned. Even though not raised below, we may consider KTSS’s 

“new legal arguments . . . [because they] relat[e] to claims previously 

raised in the litigation,” namely, the proper interpretation of (b)(1). 

Thompson v. Runnels, 705 F.3d 1089, 1098 (9th Cir. 2013).
16 HOOKS V. KITSAP TENANT SUPPORT SERVS.

176, 183 (2004) (“[O]ur inquiry begins with the statutory 

text, and ends there as well if the text is unambiguous.”).

The D.C. Circuit in SW General, Inc. v. NLRB, 796 F.3d 

67 (D.C. Cir. 2015), recently addressed the identical issue of 

whether Solomon validly served as the NLRB’s Acting 

General Counsel once he had been nominated. In SW 

General, after thoroughly analyzing the statutory text and 

legislative history, the D.C. Circuit held that § 3345(b)(1) 

applies not only to (a)(1), but also to (a)(2) and (a)(3). Id. at 

72–78. Thus, because Solomon, who was designated Acting 

General Counsel pursuant to (a)(3), “was never a first 

assistant and the President nominated him to be General 

Counsel on January 5, 2011,” the D.C. Circuit concluded 

that “the FVRA prohibited him from serving as Acting 

General Counsel from [the] date [of his nomination] 

forward.” Id. at 78. We agree with the D.C. Circuit as to 

§ 3345(b)(1)’s reach and thus likewise conclude that 

Solomon lacked the authority to serve after he was 

nominated.9

Subsection (b)(1) begins by specifying, 

“[n]otwithstanding subsection (a)(1), a person may not serve 

as an acting officer for an office under this section” if certain 

criteria are met. 5 U.S.C. § 3345(b)(1). As the D.C. Circuit 

recognized, Congress’s use of “a person” suggests that the 

phrase broadly “covers the full spectrum of possible 

candidates for acting officer,” which includes all persons 

 

 9 We additionally note that Solomon’s nomination was not pending at 

the time that, according to the Board, he authorized the 10(j) petition—

because the purported authorization occurred after the Senate had 

returned Solomon’s nomination but before the President resubmitted it. 

The Board does not argue that this matters to the analysis, and we 

assume, as did the D.C. Circuit, that it does not. See SW General, 

796 F.3d at 72 n.3.
HOOKS V. KITSAP TENANT SUPPORT SERVS. 17

contemplated by (a)(1), (a)(2), and (a)(3). SW Gen., 

796 F.3d at 74; see also Pfizer, Inc. v. Gov’t of India, 

434 U.S. 308, 312 (1978) (“the phrase ‘any person’” has a 

“naturally broad and inclusive meaning”); Gale v. First 

Franklin Loan Servs., 701 F.3d 1240, 1246 (9th Cir. 2012) 

(stating that “a” has a “generalizing force” and indicating 

that “a” is synonymous with “any” (citing Onink v. 

Cardelucci (In re Cardelucci), 285 F.3d 1231, 1234 (9th Cir. 

2002))). If Congress meant for (b)(1) to apply only to (a)(1), 

which refers only to first assistants, it likely would have said 

“first assistant” instead of “a person.”

In addition, in the context of the surrounding sections, 

Congress’s use of the phrase “this section” indicates that 

Congress intended to refer to § 3345 in its entirety. See 

Gale, 701 F.3d at 1244 (“the words of a statute must be read 

in their context and with a view to their place in the overall 

statutory scheme” (quoting Am. Bankers Ass’n v. Gould, 

412 F.3d 1081, 1086 (9th Cir. 2005))). As the D.C. Circuit 

correctly recognized, “[t]hroughout the FVRA, the Congress 

was precise in its use of internal cross-references,” using the 

term “subsection” or “paragraph” when it meant to refer to 

something less than a whole section. SW Gen., 796 F.3d at 

74 (citing, inter alia, 5 U.S.C. §§ 3345(b)(2)(A) 

(“subsection (a)”); 3345(c)(1) (“subsection (a)(1)”); 

3345(a)(2)–(3) (“paragraph (1)”)). Thus, if Congress had 

intended (b)(1) to apply only to (a)(1), it likely would have 

said “that subsection” instead of “this section,” consistent 

with the rest of the statute. Id. The plain language of (b)(1) 

thus indicates its applicability to all three subsections of 

§ 3345(a), not merely (a)(1).

The Board disputes this interpretation, arguing that 

because (b)(1) begins with the language “[n]otwithstanding 

subsection (a)(1),” (b)(1)’s application must be limited to 
18 HOOKS V. KITSAP TENANT SUPPORT SERVS.

(a)(1). This argument is in tension, however, with the 

ordinary meaning of the word “notwithstanding.” See 

Sandifer v. U.S. Steel Corp., 134 S. Ct. 870, 876 (2014) 

(“unless otherwise defined, words will be interpreted 

as taking their ordinary, contemporary, common meaning” 

(quoting Perrin v. United States, 444 U.S. 37, 42 

(1979))). The word “notwithstanding” means “in spite of.” 

Oxford English Dictionary, http://www.oed.com/

view/Entry/128667?redirectedFrom=notwithstanding#eid; 

see also Merriam-Webster, http://www.merriamwebster.com/dictionary/notwithstanding (defining “notwith

standing” as “despite” or “without being prevented by”). 

Consistent with this definition, as well as Supreme Court 

guidance, we have explained that “as a general proposition 

. . . statutory ‘notwithstanding’ clauses” work to “sweep 

aside potentially conflicting laws.” United States v. Novak, 

476 F.3d 1041, 1046 (9th Cir. 2007) (en banc) (citing 

Cisneros v. Alpine Ridge Grp., 508 U.S. 10, 18 (1993)).

Applying this definition here, “[n]otwithstanding 

subsection (a)(1)” simply means that (b)(1)’s limitations 

control, even to the extent that (a)(1)’s automatic directive 

that first assistants “shall” serve in an acting capacity may 

conflict with those limitations. Nothing about this textual 

construction indicates that (b)(1) applies only to (a)(1); it 

merely “sweep[s] aside [the] potentially conflicting” 

provisions of (a)(1). Novack, 476 F.3d at 1046; see also SW 

Gen., 796 F.3d at 75 (“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 
HOOKS V. KITSAP TENANT SUPPORT SERVS. 19

an order of operations, the ‘notwithstanding’ clause has no 

significance for the ultimate scope of subsection (b)(1).”).10

Furthermore, adopting the Board’s interpretation of the 

FVRA would result in surplusage. “It is ‘a cardinal principle 

of statutory construction’ that ‘a statute ought, upon the 

whole, to be so construed that, if it can be prevented, no 

clause, sentence, or word shall be superfluous, void, or 

insignificant.’” TRW Inc. v. Andrews, 534 U.S. 19, 31 

(2001) (quoting Duncan v. Walker, 533 U.S. 167, 174 

(2001)); see also Bosley Med. Inst., Inc. v. Kremer, 403 F.3d 

672, 681 (9th Cir. 2005) (“We try to avoid, where possible, 

an interpretation of a statute ‘that renders any part of it 

superfluous and does not give effect to all of the words used 

by Congress.’” (quoting Nevada v. Watkins, 939 F.2d 710, 

715 (9th Cir. 1991))). If (b)(1) applies only to (a)(1), which 

refers only to first assistants, then (b)(1)’s reference to 

persons who “did not serve in the position of first assistant 

to the office of such officer,” 5 U.S.C. § 3345(b)(1)(A)(i), 

would be, as the D.C. Circuit recognized, “inoperative 

because the current first assistant necessarily served as the 

first assistant in the previous year.” SW Gen., 796 F.3d at 

76. If, however, (b)(1) applies to all acting officers—

including those designated under (a)(2) and (a)(3)—“then 

subsection (b)(1)(A)(i) is not superfluous because many 

[such] officers . . . will not have served as the first assistant 

in the prior year.” Id.

The Board argues that our reading of (b)(1) would itself 

render superfluous the phrase “[n]otwithstanding subsection 

 10 As the D.C. Circuit also pointed out in SW General, Congress used 

the phrase “[f]or purposes of” in § 3345(c)(2), which indicates that “it 

knew how to use limiting language when it wanted to.” 796 F.3d at 75. 

If (b)(1) were meant to relate only to (a)(1), Congress likely would have 

said “for purposes of subsection (a)(1),” instead of “notwithstanding.”
20 HOOKS V. KITSAP TENANT SUPPORT SERVS.

(a)(1).” If (b)(1) limits all of (a), in the Board’s view there 

is no reason for Congress to have singled out (a)(1) in 

particular in the “notwithstanding” clause. This argument 

misses the point of that clause and the effect of (a)(1). 

Subsection (a)(1)—and only (a)(1)—provides for a default 

rule, by which the first assistant automatically becomes the 

acting officer. The “notwithstanding” language, as used in 

(a)(2), (a)(3), and (b)(1), simply provides that, although that 

default rule exists, these other provisions still apply. 

Without the “notwithstanding” clause, confusion could 

easily arise as to whether (b)(1) has any force in light of the 

fact that a default rule exists. We thus disagree with the 

Board’s contention that our reading deprives the 

“notwithstanding” clause of independent meaning.

We also disagree with the Board’s further argument that 

it is “structurally implausible” that (b)(1) applies to (a)(3). 

Specifically, the Board argues that because (b)(1)’s criteria 

for serving as an acting officer are linked to service as a first 

assistant, it does not make sense for an otherwise qualified 

senior agency official designated under (a)(3)—a subsection 

that has nothing to do with first assistants—to also have to 

satisfy the requirements of (b)(1). This argument overlooks 

the fact that (b)(1) does not set out general criteria for 

designation as an acting officer; instead, (b)(1) comes into 

play only when “the President submits a nomination of such 

person to the Senate for appointment to such office.” 

5 U.S.C. § 3345(b)(1)(B). An official needs to meet the 

requirements of both subsections (a) and (b)(1)(A) in order 

to continue to serve in an acting capacity only if the official 

is also nominated for the permanent position. There is thus 

no “implausibility,” structural or otherwise, in our reading of 

the statute.
HOOKS V. KITSAP TENANT SUPPORT SERVS. 21

The Board seems to contend in its reply brief that, even 

if this construction of the statute is logically plausible, 

Congress could not have meant for persons otherwise 

qualified to serve as acting officers under (a)(2) and (a)(3) to 

also have to meet the requirements of (b)(1) if they are 

nominated to the permanent office. The Board contends that 

(b)(1) simply provides a minimum career-service 

requirement—ninety days—for a first assistant to serve in 

both an acting capacity and as the nominee. Without such a 

requirement, the first assistant position could be 

“manipulat[ed]” to include “persons highly unlikely to be 

career officials.” Because (a)(3), according to the Board, 

already includes a ninety-day service requirement, it would 

be “illogical[] [for] service as a first assistant [to be] a 

minimum requirement for serving as an acting officernominee,” even if the president were relying on (a)(2) or 

(a)(3) to designate an acting officer.

The Board, however, provides no reasons why such a 

scheme would be “illogical.” Indeed, it is not difficult to see 

why congressional concerns about “manipulation” could not 

have extended to prior Senate-confirmed officers and senior 

agency employees. A designation of a prior Senateconfirmed officer to the acting position could just as easily 

be used for “manipulation” as a first assistant of insufficient 

tenure. Such an officer may be equally ill-equipped to run a 

particular agency insofar as the officer, although previously 

Senate-confirmed, may have been confirmed to a dissimilar 

position in a different field.

In this regard, we find it informative that § 3345(b)(2)11

exempts from (b)(1)’s limitations only a person who was 

 

 11 5 U.S.C. § 3345(b)(2) reads:
22 HOOKS V. KITSAP TENANT SUPPORT SERVS.

confirmed by the Senate to be first assistant for the agency 

in question. The inclusion of (b)(2) suggests that Congress 

was focused not on prior Senate confirmation as a guarantee 

of qualification to be simultaneously an acting officer and 

nominee but rather on whether the person is serving as a first 

assistant and that that office itself requires Senate 

confirmation. Subsection (b)(2) ensures that the acting 

officer also nominated to the permanent position has already 

been vetted by the Senate specifically for appointment to that 

agency and for a role similar to the position to which he or 

she has most recently been nominated. The text suggests 

that Congress was careful to carve out an exception to (b)(1) 

not for any previously Senate-confirmed acting officer, but 

only for an individual confirmed to be first assistant to the 

permanent position in question.

As to senior agency employees, although the pay scale 

and tenure requirements of (a)(3) may ensure designees of 

adequate experience within the agency, Congress still could 

have chosen to exclude such persons from simultaneously 

serving as acting officers and nominees. Congress may have 

decided that only first assistants—rather than just any GS-15 

 

(2) Paragraph [(b)](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.
HOOKS V. KITSAP TENANT SUPPORT SERVS. 23

employee—hold the requisite seniority and experience to 

appropriately serve in both capacities (or, perhaps more 

saliently, to continue serving in an acting capacity even if the 

nomination does not succeed, see 5 U.S.C. § 3346).12

In any event, instead of speculating as to Congress’s 

intent or second-guessing the wisdom of the statute’s plain 

language, we give effect to the unambiguous words 

Congress actually used. See Gov’t of Guam ex rel. Guam 

Econ. Dev. Auth. v. United States, 179 F.3d 630, 635 (9th 

Cir. 1999) (“[W]e are bound by the words that Congress 

actually used.”). As the Supreme Court has long held, “[i]t 

is our judicial function to apply statutes on the basis of what 

Congress has written, not what Congress might have 

written.” United States v. Great N. Ry. Co., 343 U.S. 562, 

575 (1952).

 

 12 Section 3346(a) provides, in relevant part, that “the person serving 

as an acting officer as described under section 3345” may serve for no 

longer than 210 days beginning on the date of the vacancy, or, “once a 

first or second nomination for the office is submitted to the Senate, from 

the date of such nomination for the period that the nomination is pending 

in the Senate.” 5 U.S.C. § 3346(a). Section 3346(b)(1) provides that the 

acting officer may continue to serve in that position for another 210 days 

if “the first nomination for the office is rejected by the Senate, 

withdrawn, or returned to the President by the Senate.” If a second 

nomination is submitted, § 3346(b)(2) provides that the person may 

again continue serving in an acting capacity until “the second nomination 

is confirmed” or “for no more than 210 days after the second nomination 

is rejected, withdrawn, or returned.” Thus, § 3346 has the effect of 

extending an acting officer’s tenure even after that individual’s 

nomination is unsuccessful—which is what happened in Solomon’s 

case. It would be plausible for Congress, through § 3345(b)(1), to have 

intended to limit the pool of individuals who may serve for an extended 

period of time despite their failed nomination.
24 HOOKS V. KITSAP TENANT SUPPORT SERVS.

In sum, the text of the FVRA clearly and unambiguously 

operates to make (b)(1) applicable to all subsections of 

§ 3345(a), not merely to (a)(1).

2

When the statutory language is unambiguous and the 

statutory scheme is coherent and consistent, our inquiry 

comes to an end, without any inquiry into legislative history. 

Miranda v. Anchondo, 684 F.3d 844, 849 (9th Cir. 2012). 

Even if we could consider the legislative history of the 

FVRA, however, the legislative history is inconclusive as to 

Congress’s intent.

The Board attempts to support its proposed interpretation 

with a floor statement by the FVRA’s chief sponsor, Senator 

Thompson, providing: “Under § 3345(b)(1), the revised 

reference to § 3345(a)(1) means that this subsection applies 

only when the acting officer is the first assistant, and not 

when the acting officer is designated by the President 

pursuant to §§ 3345(a)(2) or 3345(a)(3).” 144 Cong. Rec. 

S12822 (daily ed. Oct. 21, 1998). Although this statement 

does support the Board’s interpretation rather than the one 

we glean from the text, it is not the only statement on the 

subject. Comments by co-sponsor Senator Byrd are in direct 

tension with those of Senator Thompson. Senator Byrd 

“hewed much more closely to the statutory text and 

suggested that subsection (b)(1) applies to all categories of 

acting officers.” SW Gen., 796 F.3d at 77. In particular, after 

listing the three categories of potential acting officers under 

subsection (a), Senator Byrd stated:

However, a person may not serve as an acting 

officer if: (1)(a) he is not the first assistant, or 

(b) he has been the first assistant for less than 

90 of the past 365 days, and has not been 
HOOKS V. KITSAP TENANT SUPPORT SERVS. 25

confirmed for the position; and (2) the 

President nominates him to fill the vacant 

office.

144 Cong. Rec. S12824 (daily ed. Oct. 21, 1998) (emphasis 

added). Senator Byrd’s use of the word “however” suggests 

that the (b)(1) provisions restrict all of the three categories 

in subsection (a) that he had just described. That is, instead 

of simply restating “notwithstanding subsection (a)(1)” or 

agreeing with Senator Thompson’s remarks about the scope 

of (b)(1), Senator Byrd’s wording implied that (b)(1) 

restricts all of subsection (a) and not merely (a)(1). The floor 

statements by the FVRA’s sponsors are thus in tension with 

each other and could not help interpret (b)(1) even if the text 

were ambiguous.

The Board also makes various arguments based on 

portions of a Senate Report on an earlier version of the bill. 

See S. Rep. No. 105-250, 1998 WL 404532 (July 15, 1998). 

We agree with the D.C. Circuit that these portions of the

Senate Report are “inapposite because [they] discuss[] a 

different version of the FVRA from the one ultimately 

enacted.” SW Gen., 796 F.3d at 77. The earlier version of 

§ 3345(b) provided:

(b) Notwithstanding section 3346(a)(2) 

[which governs the length of time an acting 

officer may serve upon nomination], 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 serve[] of the 

applicable officer, such person serves in 
26 HOOKS V. KITSAP TENANT SUPPORT SERVS.

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.

S. Rep. No. 105-250, 1998 WL 404532, at *25 (emphases 

added). As the D.C. Circuit correctly observed, the earlier 

draft of subsection (b) “manifestly applie[d] to first 

assistants only. But the version ultimately enacted looks 

quite different.” SW Gen., 796 F.3d at 77. “[W]hen 

Congress does not adopt limiting language contained in a 

draft bill, such an action is ordinarily deemed evidence of 

Congressional intent to reject the limitation.” Nuclear Info. 

& Res. Serv. v. U.S. Dep’t of Transp. Res. & Special 

Programs Admin., 457 F.3d 956, 962 (9th Cir. 2006). Thus, 

we agree with the D.C. Circuit’s determination that “the 

change in phraseology weighs somewhat against the 

Board’s interpretation.” SW Gen., 796 F.3d at 77.

Next, the Board argues that the purposes of the FVRA 

would be frustrated by our interpretation of (b)(1). The 

Board points again to floor statements by Senator 

Thompson, who said that the (a)(3) category for acting 

officers was added to address concerns that there may be a 

shortage of first assistants or Senate-confirmed officers to 

fill all acting positions, particularly in the early days of a 

presidential administration. 144 Cong. Rec. S12822. 

According to the Board, reading (b)(1) to apply to acting 

officers other than first assistants would undermine (a)(3)’s 
HOOKS V. KITSAP TENANT SUPPORT SERVS. 27

goal of expanding the pool of potential acting officers. Our 

reading of (b)(1), however, does not directly limit the pool 

of potential acting officers. Subsection (b)(1) affects instead 

the pool of potential acting officers who may also be

nominated for permanent posts—a separate circumstance 

that Senator Thompson’s statements do not expressly 

address.

In a similar vein, the Board contended at oral argument 

that our reading of (b)(1) cannot be correct because it would 

“greatly . . . limit the president’s options” in designating and 

nominating acting officers. But there is no indication that 

Congress intended to make it easier for the President to 

simultaneously designate as acting officers and also 

nominate more persons of his or her choosing. If anything, 

the legislative history of the FVRA suggests the opposite 

motivation. The Senate Report states that legislation was 

required to “uphold the Senate’s prerogative to advise and 

consent to nominations through placing a limit on 

presidential power to appoint temporary officials.” S. Rep. 

105-250, at 1998 WL 404532, *4. When vacancies arise, 

“[t]he president’s duty is to submit nominees for offices to 

the Senate, not to fill those offices himself.” Id. at *5. The 

Senate Report noted that previous legislation “unfortunately 

has not succeeded in encouraging presidents to submit 

nominees in a timely fashion . . . . Indeed, given the number 

of acting officials and the growing number of departments 

that claim not to be covered by the [prior Vacancies Act], the 

Senate’s confirmation power is being undermined as never 

before.” Id. The Senate Report suggests that the FVRA was 

motivated by a desire to reassert the Senate’s confirmation 

power in the face of what was seen as executive overreach. 

See SW Gen., 796 F.3d at 70 (“The statute was framed as a 

reclamation of the Congress’s Appointments Clause 

power.”). Our reading of (b)(1), which limits the President’s 
28 HOOKS V. KITSAP TENANT SUPPORT SERVS.

choice of who can concurrently serve in an acting capacity 

and be nominated to the permanent position, seems 

consistent with such a purpose.

Finally, the Board contends that its interpretation of the 

statute is supported by guidance documents and letters from 

the Government Accountability Office and the Office of 

Legal Counsel. Neither Office is charged with administering 

the FVRA, however, and we give no deference to 

interpretations of statutes by agencies not charged with 

administering them. See Ass’n of Civilian Techs., Silver 

Barons Chapter v. Fed. Labor Relations Auth., 200 F.3d 

590, 592 (9th Cir. 2000); Parola v. Weinberger, 848 F.2d 

956, 959–60 (9th Cir. 1988). In any event, for the reasons 

discussed, we believe the GAO’s and OLC’s interpretation, 

which accords with the Board’s, conflicts with the plain text 

of the statute.

III.

The parties do not dispute that our interpretation of the 

FVRA requires that the Board’s 10(j) petition be dismissed 

for lack of proper authorization. This is not to suggest, 

however, that every violation of the FVRA will result in the 

invalidation of the challenged agency action. Although the 

FVRA generally renders void actions taken in violation of 

its provisions, see 5 U.S.C. § 3348(d)(1)–(2), it also exempts 

from that automatic result actions by a select pool of officers, 

including the General Counsel of the NLRB, see 5 U.S.C. 

§ 3348(e). The exemption provision thus “renders the 

actions of [such] improperly serving [officers, including the 

Acting General Counsel,] voidable, not void.” SW Gen., Inc. 

v. NLRB, 796 F.3d 67, 79 (D.C. Cir. 2015). In addition to 

this provision, defenses based on harmless error or the de 

facto officer doctrine might potentially be raised to 

overcome the consequences of particular FVRA 
HOOKS V. KITSAP TENANT SUPPORT SERVS. 29

violations.13 See id. at 79–82; Hooks v. Remington Lodging 

& Hosp., LLC, 8 F. Supp. 3d 1178, 1189–92 (D. Alaska 

2014). Here, however, the Board has explicitly waived any 

arguments based on the FVRA’s exemption clause, 5 U.S.C. 

§ 3348(e), and it does not otherwise contest the remedy 

sought by KTSS.14

The district court’s dismissal of the 10(j) petition is 

therefore AFFIRMED.

 

 13 The de facto officer 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.” Nguyen v. United States, 539 U.S. 69, 77 (2003)

(quoting Ryder v. United States, 515 U.S. 177, 180 (1995)).

 14 The Board suggests for the first time in a letter filed after oral 

argument pursuant to Federal Rule of Appellate Procedure 28(j) that the 

de facto officer defense is available here. Even if we could consider such 

a defense despite the Board’s explicit waiver of the § 3348(e) issue, that 

defense would have been waived for the separate reason that it was 

available at the time the Board filed its opening brief and yet was not 

raised. See United States v. McEnry, 659 F.3d 893, 902 (9th Cir. 2011) 

(rejecting a harmless error argument raised for the first time in a 28(j)

letter where that argument was available at the time the party filed its

initial brief); United States v. LaPierre, 998 F.2d 1460, 1466 n.5 (9th 

Cir. 1993) (28(j) letter “cannot raise a new issue” that was not addressed 

in the briefs).