United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued March 10, 2015 Decided August 7, 2015

No. 14-1107

SW GENERAL, INC., DOING BUSINESS AS 

SOUTHWEST AMBULANCE,

PETITIONER

v.

NATIONAL LABOR RELATIONS BOARD,

RESPONDENT

Consolidated with 14-1121

On Petition for Review and Cross-Application

for Enforcement of an Order of

the National Labor Relations Board

Alison N. Davis argued the cause for the petitioner. 

Sherron McClain was with her on brief. Jennifer W. Thomas

entered an appearance.

Kellie J. Isbell, Attorney, National Labor Relations Board, 

argued the cause for the respondent. Richard Griffin, Jr., 

General Counsel, John H. Ferguson, Associate General 

Counsel, Linda Dreeben, Deputy Associate General Counsel, 

and Robert J. Englehart, Supervisory Attorney, were with her 

on brief.
2

Before: HENDERSON, SRINIVASAN and WILKINS, Circuit 

Judges.

Opinion for the Court filed by Circuit Judge HENDERSON.

KAREN LECRAFT HENDERSON, Circuit Judge: This case 

involves a labor dispute between an ambulance company and 

its employees. We do not reach the merits of that dispute, 

however, because we conclude that Lafe Solomon, the former 

Acting General Counsel of the National Labor Relations Board 

(NLRB or Board), served in violation of the Federal Vacancies 

Reform Act of 1998 (FVRA), 5 U.S.C. §§ 3345 et seq. 

Accordingly, the unfair labor practice (ULP) complaint issued 

against the ambulance company was unauthorized. We grant 

the petition for review, deny the cross-application for 

enforcement and vacate the Board’s order.

I. BACKGROUND

A. VACANCY STATUTES

The FVRA is a response to what Chief Justice John 

Marshall called “the various crises of human 

affairs”—problems that arise when our Constitution confronts

the realities of practical governance. M’Culloch v. Maryland, 

17 U.S. 316, 415 (1819). Specifically, the Appointments 

Clause generally requires “Officers of the United States” to be 

nominated by the President “by and with the Advice and 

Consent of the Senate.” U.S. CONST. art. II, § 2, cl. 2. 

Advice and consent is “more than a matter of etiquette or 

protocol”; it is a “structural safeguard[]” intended to “curb 

Executive abuses of the appointment power” and to “promote a 

judicious choice of persons for filling the offices of the union.” 

Edmond v. United States, 520 U.S. 651, 659 (1997) (quotation 

marks and alterations omitted). But vacancies can occur 

unexpectedly (due to death, resignation, illness, etc.) and the 
3

confirmation process takes time. See ANNE JOSEPH 

O’CONNELL, WAITING FOR LEADERSHIP at 10 fig. 5 (2010) 

(finding average lag time of 190 days between vacancy and 

confirmation). To keep the federal bureaucracy humming, the 

President needs the power to appoint acting officers who can

serve on a temporary basis without first obtaining the Senate’s 

blessing.

Since the “beginning of the nation,” the Congress has 

given the President this power through vacancy statutes. 

Doolin Sec. Sav. Bank, F.S.B. v. Office of Thrift Supervision, 

139 F.3d 203, 209–10 (D.C. Cir. 1998) (citing, inter alia, Act 

of May 8, 1792, ch. 37, § 8, 1 Stat. 279, 281). 1 The 

predecessor to the FVRA, the Vacancies Act, was first enacted 

in 1868. See Act of July 23, 1868, ch. 227, 15 Stat. 168. The 

Vacancies Act allowed the President to fill vacancies with 

temporary acting officers, subject to limitations on whom he 

could appoint and how long the appointee could serve. See

Pub. L. No. 89-554, 80 Stat. 378, 426 (Sept. 6, 1966); Pub. L. 

No. 100-398, 102 Stat. 985, 988 (Aug. 17, 1988).

Presidents, however, have not always complied with the 

Vacancies Act. See MORTON ROSENBERG, CONG. RESEARCH 

SERV., 98-892 A, THE NEW VACANCIES ACT: CONGRESS ACTS 

TO PROTECT THE SENATE’S CONFIRMATION PREROGATIVE 2–3 

(1998). By 1998, an estimated 20% of all officers in positions 

requiring presidential nomination and Senate confirmation 

(PAS positions) were serving in a temporary acting capacity, 

 1 The Constitution also partially addresses this problem. The 

President can temporarily fill vacancies “that may happen during the 

Recess of the Senate.” U.S. CONST. art. II, § 2, cl. 3. But the 

Recess Appointments Clause is an incomplete answer because the 

President may need to install an acting officer before the Senate’s 

next recess.
4

many well beyond the time limits prescribed in the Vacancies 

Act. See id. at 1. Nor was the Vacancies Act particularly 

amenable to judicial enforcement. In Doolin, for example, we

did not decide whether the acting director of the Office of 

Thrift Supervision lacked statutory authority because we 

determined that any error in his appointment was cured. See

139 F.3d at 214. We relied on the doctrine of ratification: 

because the director’s decision was later approved by a 

properly appointed director, any defect in his appointment was 

immaterial. See id. at 212–14. Our decision in Doolin, along 

with the President’s appointment of Bill Lann Lee to be Acting 

Attorney General of Civil Rights in 1997, prompted 

congressional action. See ROSENBERG, supra, at 1, 8.

In June 1998, Senators Fred Thompson, Robert Byrd, 

Strom Thurmond and others introduced the FVRA to 

strengthen, and ultimately replace, the Vacancies Act. See

144 CONG.REC. S6413–14 (daily ed. June 16, 1998) (statement 

of Sen. Thompson). The statute was framed as a reclamation

of the Congress’s Appointments Clause power. See id. at 

S6413 (“This legislation is needed to preserve one of the 

Senate’s most important powers: the duty to advise and 

consent on presidential nominees.”); S. REP. NO. 105-250, at 5 

(1998) (“If the Constitution’s separation of powers is to be 

maintained, . . . legislation to address the deficiencies in the 

operation of the current Vacancies Act is necessary. . . . [T]he 

Senate’s confirmation power is being undermined as never 

before.”). After some amendment, the FVRA was enacted in 

October 1998. See Pub. L. No. 105-277, div. C, tit. I, § 151.

The FVRA provides that, in the event of a vacancy in a 

PAS position, the “first assistant” automatically takes over in 

an acting capacity. 5 U.S.C. § 3345(a)(1). The President can 

also choose to appoint a senior employee from the same agency 

or a PAS officer from another agency to serve as the acting 
5

officer. Id. § 3345(a)(3), (a)(2). Generally speaking, an 

acting officer can serve no longer than 210 days and cannot 

become the permanent nominee for the position. See id.

§§ 3346; 3345(b). Moreover, in response to Doolin, the 

FVRA renders actions taken by persons serving in violation of 

the Act void ab initio. See id. § 3348(d)(1)–(2) (“An action 

taken by any person who is not acting [in compliance with the 

FVRA] shall have no force or effect” and “may not be 

ratified.”); see also 144 CONG. REC. S6414 (explaining that the 

FVRA “impose[s] a sanction for noncompliance,” thereby 

“[o]verruling several portions of [Doolin]”); S. REP. NO.

105-250, at 5 (“The Committee . . . finds that th[e ratification] 

portion of [Doolin] demands legislative response. . . .”).

B. NLRB GENERAL COUNSEL VACANCY

Under the National Labor Relations Act (NLRA), the 

General Counsel of the NLRB must be appointed by the 

President with the advice and consent of the Senate. 29 

U.S.C. § 153(d). He is primarily responsible for prosecuting 

ULP cases before the Board. Id. Indeed, the Board cannot

adjudicate a ULP dispute until the General Counsel decides a 

charge has merit and issues a formal complaint. See id.

§ 160(b); 29 C.F.R. §§ 102.9, 102.15. To manage the volume 

of ULP charges filed each year, the General Counsel has 

delegated his authority to investigate charges and issue 

complaints to thirty-two regional directors. See NLRB v. 

Sears, Roebuck & Co., 421 U.S. 132, 139 (1975) (citing 29 

C.F.R. §§ 101.8; 102.10). The General Counsel, however, 

retains “final authority” over charges and complaints and 

exercises “general supervision” of the regional directors. 29 

U.S.C. § 153(d).

In June 2010, Ronald Meisburg resigned as NLRB 

General Counsel. The President directed Lafe Solomon, 
6

then–Director of the NLRB’s Office of Representation 

Appeals, to serve as the Acting General Counsel in Meisburg’s 

stead. See Memorandum from the White House for Lafe E. 

Solomon (June 18, 2010). The President cited the FVRA as 

the authority for Solomon’s appointment. See id. (invoking 

“section 3345(a) of title 5”). 2 On January 5, 2011—six 

months into Solomon’s temporary appointment—the President 

nominated him to be General Counsel. 157 CONG. REC. S69 

(daily ed. Jan. 5, 2011). The Senate, however, returned 

Solomon’s nomination. 159 CONG.REC. S17 (daily ed. Jan. 3, 

2013). The President resubmitted Solomon’s nomination on 

May 24, 2013, 159 CONG. REC. S3884 (daily ed. May 23, 

2013), but ultimately withdrew it and nominated Richard 

Griffin instead, who was confirmed by the Senate on October 

29, 2013. 159 CONG. REC. S7635 (daily ed. Oct. 29, 2013). 

All told, Solomon served as Acting General Counsel from June

21, 2010 to November 4, 2013.

C. BOARD PROCEEDINGS AGAINST SOUTHWEST

SW General, Inc. (Southwest) provides ambulance 

services to hospitals in Arizona. Its emergency medical 

technicians, nurses and paramedics are represented by the 

International Association of Fire Fighters Local I-60, 

 2 The NLRA also authorizes the appointment of a temporary 

Acting General Counsel. See 29 U.S.C. § 153(d); see also S. REP.

NO. 105-120, at 16 (FVRA does not override appointment provision 

in NLRA (referencing 5 U.S.C. § 3347(a)(1)(A))). The President 

did not invoke the NLRA when appointing Solomon, 

however—perhaps because the FVRA allows an acting officer to 

serve for a longer period of time. Compare 29 U.S.C. § 153(d) 

(permitting service for 40 days, tolled while nomination is pending 

before Senate), with 5 U.S.C. § 3346 (permitting service for 210 

days, tolled while first or second nomination is pending before 

Senate).
7

AFL-CIO (Union). The most recent collective bargaining 

agreement between Southwest and the Union contained a 

“Longevity Pay” provision, guaranteeing annual bonuses to 

Southwest employees who had been with the company for at 

least ten years. In December 2012—after the collective 

bargaining agreement expired but before the parties negotiated

a replacement—Southwest stopped paying the longevity 

bonuses.

The Union immediately filed a ULP charge with the 

NLRB. Regional Director Cornele Overstreet issued a formal 

complaint on January 31, 2013, alleging that Southwest had 

unilaterally discontinued longevity payments in violation of 

sections 8(a)(1) and 8(a)(5) of the NLRA, 29 U.S.C. 

§ 158(a)(1), (5). After a hearing, an administrative law judge 

(ALJ) agreed that Southwest had committed a ULP. 

Southwest filed fifteen exceptions to the ALJ’s decision, the 

second of which challenged the ULP complaint on the ground

that Acting General Counsel Solomon was serving in violation 

of the FVRA. See Resp’t’s Exceptions to ALJ Decision at 1

¶ 2, No. 28-CA-094176 (Sept. 5, 2013). In May 2014, the 

NLRB adopted the ALJ’s recommended order with only minor 

modifications, see 360 N.L.R.B. No. 109 (2014), and it did not 

address Southwest’s FVRA challenge.

Southwest petitioned this Court for review and the Board 

cross-petitioned for enforcement. We have jurisdiction 

pursuant to 29 U.S.C. § 160(f), (e).

II. ANALYSIS

Southwest maintains that, as of January 2011, Acting 

General Counsel Solomon was serving in violation of the 

FVRA and, thus, the ULP complaint issued against it in 

January 2013 was invalid. Specifically, Southwest argues that 

Solomon became ineligible to serve as Acting General Counsel
8

once the President nominated him to be General Counsel. See 

5 U.S.C. § 3345(b)(1). 3 In its original brief, the Board 

vigorously contested Southwest’s reading of the statute but 

made no argument—except in a lone footnote—about the 

consequences of an FVRA violation. We therefore asked the 

parties to submit supplemental briefs addressing whether an

FVRA violation, assuming one occurred, would nonetheless be

harmless error. With the benefit of the parties’ arguments, we 

now conclude that (A) Solomon was serving in violation of the 

FVRA when the complaint issued against Southwest and 

(B) the violation requires us to vacate the Board’s order.

A.

The key provision of the FVRA, for present purposes, is 

section 3345. For ease of reference, we quote the provision in 

full:

§ 3345. Acting officer

(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 

 3

 We note that Solomon’s nomination was no longer pending

when the ULP complaint issued against Southwest: the Senate had 

returned it and the President had not yet resubmitted it. The Board, 

however, does not argue that the non-pendency of Solomon’s 

nomination should make a difference in our analysis. We therefore 

assume it does not.

We also note that the complaint against Southwest was issued 

by Regional Director Overstreet pursuant to a delegation of authority 

from Solomon. The Board, however, does not argue that this 

delegation survives any defect in the General Counsel’s authority. 

We, again, assume arguendo that it does not.
9

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 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.

(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 death, resignation, or beginning of inability 

to serve, such person—
10

(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

(B) the President submits a nomination of such 

person to the Senate for appointment to such 

office.

(2) Paragraph (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.

(c)(1) Notwithstanding subsection (a)(1), the 

President (and only the President) may direct an 

officer who is nominated by the President for 

reappointment for an additional term to the same 

office in an Executive department without a break in 

service, to continue to serve in that office subject to 

the time limitations in section 3346, until such time as 

the Senate has acted to confirm or reject the 

nomination, notwithstanding adjournment sine die.

(2) For purposes of this section and sections 3346, 

3347, 3348, 3349, 3349a, and 3349d, the expiration of 

a term of office is an inability to perform the functions 

and duties of such office.

5 U.S.C. § 3345.
11

Solomon became Acting General Counsel pursuant to 

subsection (a)(3)—the senior agency employee provision. As 

the Director of the Office of Representation Appeals for the 

previous ten years, Solomon easily met the salary and 

experience requirements of that subsection. See id.

§ 3345(a)(3)(A)–(B). According to Southwest, however, 

Solomon could no longer serve as Acting General Counsel

once the President nominated him in January 2011 to be 

General Counsel. Subsection (b)(1) of the FVRA prohibits a 

person from being both the acting officer and the permanent 

nominee unless (1) he served as the first assistant to the office 

in question for at least 90 of the last 365 days or (2) he was 

confirmed by the Senate to be the first assistant. See id.

§ 3345(b)(1)–(2). Solomon was never a first assistant at all so 

the exceptions plainly do not apply to him. The Board, 

however, contends that the prohibition in subsection (b)(1) 

governs only an acting officer who assumes the position 

pursuant to subsection (a)(1), not an acting officer who is

directed to serve by the President pursuant to subsections (a)(2) 

or (a)(3). Thus, the pivotal question is whether the prohibition 

in subsection (b)(1) applies to all acting officers, as Southwest 

contends, or just first assistants who become acting officers by 

virtue of subsection (a)(1), as the Board contends. 

Considering this question de novo,4

we think Southwest has 

 4

 The NLRB is not entitled to Chevron deference when it 

interprets the FVRA, “a general statute not committed to [its] 

administration.” Soc. Sec. Admin. v. FLRA, 201 F.3d 465, 471 

(D.C. Cir. 2000). We also note that, in 1999, the Office of Legal 

Counsel (OLC) endorsed the NLRB’s interpretation of subsection 

(b)(1). See Guidance on Application of Federal Vacancies Reform 

Act of 1998, 23 Op. O.L.C. 60, 64 (1999) (“The limitation on the 

ability to be the nominee for the vacant position and to serve as the 

acting officer applies only to persons who serve as acting officers by 

virtue of having been the first assistant to the office.”). But the 
12

the better argument.5

The first independent clause of subsection (b)(1) is the 

clearest indication of its overall scope. That clause states that

“a person may not serve as an acting officer for an office under 

this section.” 5 U.S.C. § 3345(b)(1) (emphases added). The 

term “a person” is broad; it covers the full spectrum of possible 

candidates for acting officer. See Pfizer, Inc. v. Gov’t of 

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

a “naturally broad and inclusive meaning”). And the phrase

“this section” plainly refers to section 3345 in its entirety. 

Throughout the FVRA, the Congress was precise in its use of 

internal cross-references. See, e.g., 5 U.S.C.

§§ 3345(b)(2)(A) (“subsection (a)”); 3345(c)(1) (“subsection 

(a)(1)”); 3345(c)(2) (“this section and sections 3346, 3347, 

3348 . . .”); 3345(a)(2)–(3) (“paragraph (1)”); 3348(e) (“this 

section”). If the Congress had wanted to enact the Board’s 

understanding, it would have said “first assistant” and “that 

subsection” instead of “a person” and “this section.” Thus, 

the plain language of subsection (b)(1) manifests that no 

person can serve as both the acting officer and the permanent 

nominee (unless one of the exceptions in subsections (b)(1)(A) 

or (b)(2) applies).

 

OLC is not entitled to Chevron deference either. See Crandon v. 

United States, 494 U.S. 152, 177 (1990) (“advisory opinion[] . . . of 

the . . . OLC . . . is not an administrative interpretation that is entitled 

to deference under Chevron”).

5

 Our decision is in accord with the two other courts that have 

considered the question. See Hooks v. Remington Lodging & 

Hospitality, LLC, 8 F. Supp. 3d 1178, 1187–89 (D. Alaska 2014); 

Hooks v. Kitsap Tenant Support Servs., Inc., No. 13-cv-5470, 2013 

WL 4094344, at *2 (W.D. Wash. Aug. 13, 2013).
13

The Board’s main argument to the contrary focuses on the 

first dependent clause in subsection (b)(1): “Notwithstanding 

subsection (a)(1).” According to the Board, the

“notwithstanding” clause limits subsection (b)(1)’s prohibition 

to first assistants who become acting officers pursuant to

subsection (a)(1). There are several flaws with this argument. 

For starters, it is not what the word “notwithstanding” means. 

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

is a fundamental canon of statutory construction that, unless 

otherwise defined, words will be interpreted as taking their 

ordinary, contemporary, common meaning.” (quotation marks 

omitted)). “Notwithstanding” means “in spite of,” OXFORD 

ENGLISH DICTIONARY (2d ed. 1989); BLACK’S LAW 

DICTIONARY (10th ed. 2014)—not, as the Board would have it, 

“for purposes of” or “with respect to.” Here, then, the 

“notwithstanding” clause means “to the extent that subsection 

(a)(1) deviates from subsection (b)(1), subsection (b)(1) 

controls.” See United States v. Fernandez, 887 F.2d 465, 468 

(4th Cir. 1989) (proviso “ ‘notwithstanding any other provision 

of law’ . . . naturally means that the [statute] should not be 

limited by other statutes”); ANTONIN SCALIA & BRYAN A.

GARNER, READING LAW: THE INTERPRETATION OF LEGAL 

TEXTS 126 (Thompson/West 2012) (“A dependent phrase that 

begins with notwithstanding indicates that the main clause that 

it introduces . . . derogates from the provision to which it 

refers.”). The 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 an order of 

operations, the “notwithstanding” clause has no significance

for the ultimate scope of subsection (b)(1). See Kucana v. 

Holder, 558 U.S. 233, 238–39 n.1 (2010) (“The introductory 

clause [‘Notwithstanding any other provision of law’] does not 

define the scope of [the statute]. It simply informs that once 
14

the scope of the [statute] is determined, [it applies] regardless 

of what any other provision or source of law might say.”).

Context further refutes the Board’s “notwithstanding” 

argument. As discussed, the Board’s interpretation of 

“notwithstanding” is irreconcilable with the breadth of the 

words “a person” and “this section” in the remainder of the 

introductory clause. See Maracich v. Spears, 133 S. Ct. 2191, 

2205 (2013) (“The provisions of a text should be interpreted in 

a way that renders them compatible, not contradictory.”); cf.

also United States v. Emerson, 270 F.3d 203, 233 n.32 (5th Cir. 

2001) (“[W]here the preamble and the operative portion of the 

statute may reasonably be read consistently with each other, 

the preamble may not properly support a reading of the 

operative portion which would plainly be at odds with what 

otherwise would be its clear meaning.”). Indeed, the only 

other time section 3345 uses the phrase “a person” is in 

subsection (a)(2) and, there, the phrase is plainly not limited to 

a first assistant. Moreover, the Congress used the word 

“notwithstanding” several times in section 3345. See 5 U.S.C. 

§§ 3345(a)(2)–(3) (“notwithstanding paragraph (1)”); 

3345(c)(1) (“Notwithstanding subsection (a)(1)” and 

“notwithstanding adjournment sine die”). Each time, it

plainly meant “in spite of” rather than “with respect to.” “It is 

a well established rule of statutory construction that a word is 

presumed to have the same meaning in all subsections of the 

same statute.” Allen v. CSX Transp., Inc., 22 F.3d 1180, 1182 

(D.C. Cir. 1994) (quotation marks omitted). Similarly, the 

Congress used the phrase “For purposes of” in subsection 

(c)(2), which shows that it knew how to use limiting language 

when it wanted to. See Vonage Holdings Corp. v. FCC, 489 

F.3d 1232, 1240 (D.C. Cir. 2007) (“[W]e have repeatedly held 

that where different terms are used in a single piece of 

legislation, the court must presume that Congress intended the 

terms to have different meanings.” (quotation marks and 
15

alteration omitted)). The Board’s crabbed interpretation of 

“notwithstanding” simply does not pass muster.

Further, the Board’s reading of subsection (b)(1)—but not 

Southwest’s—renders other provisions of section 3345 

superfluous. See TRW Inc. v. Andrews, 534 U.S. 19, 31 

(2001) (“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.” (quotation marks 

omitted)). In the Board’s view, subsection (b)(1) applies only 

to subsection (a)(1)—the first assistant provision. Although 

we do not decide its meaning today, subsection (a)(1) may

refer to the person who is serving as first assistant when the 

vacancy occurs. Accord 23 Op. O.L.C. at 64 (“[W]e believe 

. . . you must be the first assistant when the vacancy occurs in 

order to be the acting officer by virtue of being the first 

assistant.”). Under this reading, subsection (a)(1) provides a

default rule that automatically promotes someone (the current 

first assistant) to be the acting officer without a break in service 

and without action by the President. But if subsection (a)(1) 

refers to the first assistant at the time of the vacancy, then the 

condition in subsection (b)(1)(A)(i)—that the person “did not 

serve in the position of first assistant to the office” in the prior 

365 days—is inoperative because the current first assistant 

necessarily served as the first assistant in the previous year. If 

Southwest is correct that subsection (b)(1) applies to all acting 

officers, however, then subsection (b)(1)(A)(i) is not 

superfluous because many PAS officers (subsection (a)(2)) and 

senior agency employees (subsection (a)(3)) will not have 

served as the first assistant in the prior year.

At oral argument, the Board argued—consistent with a 

revised OLC opinion—that subsection (a)(1) also applies to a 

person who becomes first assistant after the vacancy occurs. 
16

Oral Arg. Recording 17:02–30:24; accord Designation of 

Acting Associate Attorney General, 25 Op. O.L.C. 177, 179–

81 (2001). This interpretation, the Board contends, gives a 

nonsuperfluous meaning to subsection (b)(1)(A)(i). Yet, the 

Board’s interpretation faces another surplusage problem. 

Section 3345(b)(2)(A) allows an acting officer to also be the 

permanent nominee if, inter alia, he “is serving as [a] first 

assistant.” But the current first assistant—whether he became

first assistant before or after the vacancy—is necessarily

serving as a first assistant. The Board’s interpretation (which 

reads “person” in subsection (b) to mean “first assistant”) 

creates surplusage whereas Southwest’s interpretation (which 

reads “person” to mean “first assistant, PAS officer or senior 

agency employee”) does not.

Perhaps sensing the weakness of its textual arguments, the 

Board falls back on legislative history and statutory purpose to 

support its interpretation. Its argument needs to be quite 

strong because, to repeat, the text of the FVRA plainly supports 

Southwest. See Milner v. Dep’t of Navy, 562 U.S. 562, 572 

(2011) (“Those of us who make use of legislative history 

believe that clear evidence of congressional intent may 

illuminate ambiguous text. We will not take the opposite tack 

of allowing ambiguous legislative history to muddy clear 

statutory language.”); Kloeckner v. Solis, 133 S. Ct. 596, 607 

n.4 (2012) (“[E]ven the most formidable argument concerning 

the statute’s purposes could not overcome the clarity we find in 

the statute’s text.”). As we shall see, however, the Board’s 

argument is anything but.

The Board first points to a floor statement by Senator 

Thompson, the chief sponsor of the FVRA. Thompson 

presaged the Board’s view, stating, “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 
17

not when the acting officer is designated by the President 

pursuant to §§ 3345(a)(2) or 3345(a)(3).” 144 CONG. REC.

S12,822 (daily ed. Oct. 21, 1998). Yet, a statement of a single

Senator—even the bill’s sponsor—is only weak evidence of 

congressional intent. See Zuber v. Allen, 396 U.S. 168, 186 

(1969) (“Floor debates reflect at best the understanding of 

individual Congressmen.”); Chrysler Corp. v. Brown, 441 U.S. 

281, 311 (1979) (“The remarks of a single legislator, even the 

sponsor, are not controlling in analyzing legislative history.”). 

Moreover, Thompson was immediately contradicted by 

Senator Byrd—an “original sponsor” of the FVRA. 144 

CONG. REC. S12,824 (statement of Sen. Byrd). Byrd’s 

statement6 hewed much more closely to the statutory text and 

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

acting officers. Thus, the floor statements are a wash. See

March v. United States, 506 F.2d 1306, 1314 n.31 (D.C. Cir. 

1974) (“[W]here, as here, [congressional debates] reflect 

individual interpretations that are contradictory and 

ambiguous, they carry no probative weight.”). And Senator 

Thompson’s statement is certainly not enough to overcome the 

FVRA’s clear text. See Nat’l Ass’n of Mfrs. v. Taylor, 582 

F.3d 1, 12 (D.C. Cir. 2009) (“Floor statements from members 

of Congress, even from a bill’s sponsors, cannot amend the 

 6 “[T]he officer’s position may . . . be filled temporarily by 

either: (1) the first assistant to the vacant office; (2) an executive 

officer who has been confirmed by the Senate for his current 

position; or (3) a career civil servant, paid at or above the GS-15 rate, 

who has served in the agency for at least 90 of the past 365 days. 

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 confirmed for the 

position; and (2), the President nominates him to fill the vacant 

office.” 144 CONG. REC. S12,824 (emphases added).
18

clear and unambiguous language of a statute.” (quotation 

marks omitted)).

The Board next cites a Senate committee report to buttress 

its interpretation. The report states that “a first assistant who 

has not received Senate confirmation, but who is nominated to 

fill the office permanently, can be made the acting officer only 

if he has been the first assistant for at least 180 days in the year 

preceding the vacancy.” S. REP. NO. 105-250, at 2 (emphasis 

added). The committee report, however, is inapposite 

because it discusses a different version of the FVRA from the 

one ultimately enacted. Specifically, an earlier draft of 

subsection (b) provided:

(b) Notwithstanding section 3346(a)(2), 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 server of the applicable 

officer, such person serves in 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.

Id. at 25 (emphases added). This version of subsection (b) 

manifestly applies to first assistants only. But the version 

ultimately enacted looks quite different. In fact, the change in 

phraseology weighs somewhat against the Board’s 

interpretation. See Ariz. Pub. Serv. Co. v. EPA, 211 F.3d 

1280, 1289 (D.C. Cir. 2000) (“The fact that Congress 
19

specifically rejected language favorable to [a party’s] position 

and enacted instead language that is consistent with [the 

opponent’s] interpretation only strengthens our conclusion that 

the [opponent] has correctly ascertained Congress’ intent 

. . . .”).

Finally, the Board contends that Southwest’s 

interpretation of subsection (b)(1) defeats the purpose behind

subsections (a)(2) and (a)(3): namely, “expanding the pool of 

potential acting officers beyond first assistants.” Resp’t’s Br. 

38. But accepting Southwest’s interpretation in no way 

decreases the pool of people eligible to be an acting officer; it 

merely decreases the pool of people eligible to be both the

acting officer and the permanent nominee.

In short, the text of subsection (b)(1) squarely supports 

Southwest’s interpretation and neither the legislative history 

nor the purported goal of the FVRA helps the Board. We 

therefore hold that the prohibition in subsection (b)(1) applies 

to all acting officers, no matter whether they serve pursuant to 

subsection (a)(1), (a)(2) or (a)(3). Because Solomon was 

never a first assistant and the President nominated him to be 

General Counsel on January 5, 2011, the FVRA prohibited him 

from serving as Acting General Counsel from that date

forward.

B.

Having concluded that Solomon was serving in violation 

of the FVRA when the ULP complaint issued against 

Southwest, we must now determine the consequence of that 

violation. Southwest believes we must vacate the Board’s 

order. If the violation had occurred in the typical federal 

office, we might agree. The FVRA renders any action taken 

in violation of the statute void ab initio: section 3348(d) 

declares that “[a]n action taken by any person who is not acting 
20

[in compliance with the FVRA] shall have no force or effect” 

and “may not be ratified.” 5 U.S.C. § 3348(d)(1)–(2). 

Moreover, without a valid complaint, the Board could not find

Southwest liable for a ULP. See 29 U.S.C. § 160(b) (requiring 

complaints); NLRB v. Dant, 344 U.S. 375, 382 (1953) (“[T]he 

remedial processes of the [NLRA] to cure [unfair labor] 

practices . . . can only be invoked by the issuance of a 

complaint.”); NLRB v. Highland Park Mfg. Co., 341 U.S. 322, 

325 (1951) (“The Board is a statutory agency, and, when it is 

forbidden to investigate or entertain complaints in certain 

circumstances, its final order could hardly be valid.”).

But this is not the typical case. Section 3348(e)(1) 

exempts “the General Counsel of the National Labor Relations 

Board” from the provisions of “section [3348],” including the 

void-ab-initio and no-ratification rules. See 5 U.S.C.

§ 3348(e)(1). 7 The Board contends that section 3348(e)(1) 

 7 According to a Senate committee report, section 3348(e) was 

intended to exempt the General Counsel of the NLRB from “the 

vacant office provisions” of the FVRA. S. REP. NO. 105-250, at 20. 

The vacant office provision is section 3348(b), which provides that, 

absent compliance with the FVRA, an office must “remain vacant” 

and “only the head of [the] Executive agency may perform any 

function or duty of such office.” 5 U.S.C. § 3348(b)(1)–(2). The 

Congress did not want the “head” of the NLRB—i.e., the Board

members—to perform the duties of the General Counsel because the 

NLRA intentionally “separate[s] the official who . . . investigate[s] 

and charge[s] [ULPs] from the officials who . . . determine whether 

th[e] statute ha[s] actually been violated.” S. REP. NO. 105-250, at 

20; see also Haleston Drug Stores v. NLRB, 187 F.2d 418, 421 n.3 

(9th Cir. 1951). “If the non-delegable duties of the[] general 

counsel were somehow to be performed by the [Board members] that 

policy would be obliterated.” S. REP. NO. 105-250, at 20. This 

explains why the Congress exempted the General Counsel from 

section 3348(b) but we are unsure why the Congress also exempted 
21

allows it to raise arguments like harmless error and the de facto 

officer doctrine. See generally 5 U.S.C. § 706 (in reviewing 

agency action, “due account shall be taken of the rule of 

prejudicial error”); Doolin, 139 F.3d at 212–14. We therefore 

assume that section 3348(e)(1) renders the actions of an 

improperly serving Acting General Counsel voidable, not void, 

and consider the two arguments the Board posits in its 

supplemental brief. We express no view on whether section 

3348(e)(1) could be understood more broadly to wholly 

insulate the Acting General Counsel’s actions even in the event 

of an FVRA violation. We similarly express no view on 

defenses the Board never raised. See United States v. Hasting, 

461 U.S. 499, 510 (1983) (“[W]e are not required to review 

records to evaluate a harmless error claim, and do so 

sparingly.”).

i. Harmless Error

We first address the “rule of prejudicial error.” 5 U.S.C. 

§ 706. As previously discussed, we held in Doolin that any 

statutory defect in the acting director’s authority was cured

because a subsequent, properly appointed director ratified his 

actions. See 139 F.3d at 213. The Board does not rely on 

Doolin’s holding—understandably, inasmuch as no properly 

appointed General Counsel ratified the ULP complaint against 

Southwest. See generally FEC v. NRA Political Victory 

Fund, 513 U.S. 88, 98–99 (1994). The Board instead relies on 

a paragraph of dicta from Doolin. In Doolin, we analogized a 

complaint in an administrative enforcement proceeding to a 

grand jury indictment in a criminal proceeding. See 139 F.3d 

at 212. Defects in a grand jury indictment do not constitute 

reversible error, Doolin noted, unless they “prejudiced” the 

 

the General Counsel from section 3348(d) (i.e., the no-ratification 

and void-ab-initio provisions).
22

defendant. Id. (quoting Bank of Nova Scotia v. United States, 

487 U.S. 250, 254 (1988)). And a defect does not prejudice 

the defendant if a petit jury subsequently finds him guilty 

beyond a reasonable doubt. Id. (citing United States v. 

Mechanik, 475 U.S. 66, 73 (1986)). The same logic might 

apply, we postulated in Doolin, if an agency adjudicator finds a 

petitioner liable despite a defective administrative complaint. 

See id. Doolin ultimately declined to rely on this hypothesis, 

however, because the parties had not briefed it. See id. Here, 

on the other hand, the Board brings Doolin’s dicta to the 

forefront and argues that the NLRB’s final order renders 

harmless any defect in the ULP complaint against Southwest.

The grand jury analogy in Doolin, like the doctrine of 

harmless error generally, focuses on the existence vel non of 

“prejudice[]” to the petitioner. Id. But a petitioner need not

demonstrate prejudice in the first place if the alleged error is 

“structural” in nature. Landry v. FDIC, 204 F.3d 1125, 1131

(D.C. Cir. 2000). In the grand jury context, for example, the

occurrence of race or sex discrimination in the selection of 

grand jurors constitutes a structural error that warrants 

automatic reversal. See id. at 1130–31 (citing Vasquez v. 

Hillery, 474 U.S. 254, 261 & n.4 (1986) (race); Ballard v. 

United States, 329 U.S. 187, 195 (1946) (sex)). In the agency 

context, we concluded in Landry that “[i]ssues of separation of 

powers” are structural errors that do not require a showing of 

prejudice because “it will often be difficult or impossible for 

someone subject to a wrongly designed scheme to show that 

the design—the structure—played a causal role in his loss.” 

Id. at 1131. “[D]emand for a clear causal link to a party’s 

harm” would frustrate the “ ‘prophylactic’ ” goal of the 

separation of powers—i.e., “ ‘establishing high walls and clear 

distinctions because low walls and vague distinctions will not 

be judicially defensible in the heat of interbranch conflict.’ ” 

Id. (quoting Plaut v. Spendthrift Farm, Inc., 514 U.S. 211, 239 
23

(1995)). Landry rejected the argument that subsequent de 

novo review by the Federal Deposit Insurance Commission 

could render harmless the fact that the ALJ was serving in

violation of the Appointments Clause. See id. at 1130–32. 

“If the process of final de novo review could cleanse the 

violation of its harmful impact,” Landry reasoned, “then all 

such arrangements would escape judicial review.” Id. at 

1132.

Southwest contends that an FVRA violation is a structural 

error that cannot be rendered harmless by subsequent de novo

review. We do not reach that question, however, because we 

agree with another one of Southwest’s arguments. 

Specifically, the grand jury analogy from Doolin is ill-suited in 

this case. In a criminal proceeding, the grand jury and petit 

jury are similarly situated and have the same basic task: 

determining the defendant’s guilt under the requisite standard 

of proof (“probable cause” and “beyond a reasonable doubt,” 

respectively). See Mechanik, 475 U.S. at 70. As such, “[a] 

later conviction by a petit jury supplies virtual certainty that a 

properly constituted grand jury would have indicted.” 

Landry, 204 F.3d at 1131 (emphasis added). Here, however, 

we lack the same certainty. The NLRB General Counsel is 

statutorily independent from the Board, see NLRB v. United 

Food & Commercial Workers Union, Local 23, 484 U.S. 112, 

124 (1987); Sears, Roebuck, 421 U.S. at 138–39, and he has 

“final authority” over the issuance of ULP complaints, 29 

U.S.C. § 153(d); see also United Food, 484 U.S. at 126 

(General Counsel has “unreviewable discretion to file and 

withdraw a complaint”). He essentially exercises 

prosecutorial discretion: he need not issue a complaint even if 

he believes a ULP was committed. See United Food, 484 U.S. 

at 126, 130. Moreover, the General Counsel sets the 

enforcement priorities for the NLRB and generally supervises 

its lawyers. See 29 U.S.C. § 153(d); Sears, Roebuck, 421 U.S. 
24

at 138–42. During oral argument, the Board conceded that, if 

the General Counsel’s office were vacant, the NLRB “would 

not be issuing complaints.” Oral Arg. Recording 32:51–

32:57. The Board nonetheless argued that, because the type 

of ULP charged against Southwest was not “of substantial 

legal interest” to Acting General Counsel Solomon, that 

particular complaint did not require submission to the General 

Counsel’s Office for review beforehand. Id. at 32:06–32:51. 

Southwest rightly points out, however, that a different General 

Counsel may have imposed different requirements and 

procedures during his tenure. See, e.g., Memorandum GC 

11-11 from Acting Gen. Counsel Lafe Solomon to All Reg’l 

Dirs., Officers-in-Charge, and Resident Officers 1 (Apr. 12, 

2011) (identifying four “groups” of matters that must be 

submitted to General Counsel for advice, including those that 

“involve a policy issue in which I am particularly interested” 

and “involve issues as to which the law is in flux as the result of 

Board or court decisions”). Accordingly, notwithstanding the 

final Board order, we cannot be confident that the complaint 

against Southwest would have issued under an Acting General 

Counsel other than Solomon. See Haleston Drug Stores, 187 

F.2d at 422 n.5 (“[O]scillations in rigor are characteristic of 

prosecuting officers.”). Our uncertainty is sufficient to 

conclude that Southwest has carried its burden of 

demonstrating that the FVRA violation is non-harmless under 

the Administrative Procedure Act. See Jicarilla Apache 

Nation v. U.S. Dep’t of Interior, 613 F.3d 1112, 1121 n.5 (D.C. 

Cir. 2010) (although “[t]he burden to demonstrate prejudicial 

error is on the party challenging agency action,” it “is not a 

particularly onerous requirement” (quotation marks and 

ellipsis omitted)). We therefore conclude that the NLRB 

order did not ratify or otherwise render harmless the FVRA 

defect in the ULP complaint against Southwest. We note, 

however, that our conclusion does not control whether the 
25

ineligibility of an official with prosecutorial responsibilities in 

other contexts should be considered harmless.

ii. De Facto Officer Doctrine

The only other argument in the Board’s supplemental brief

is the de facto officer doctrine. This oft-forgotten doctrine has 

“feudal origins,” dating back to the 15th century. Andrade v. 

Lauer, 729 F.2d 1475, 1496 (D.C. Cir. 1984); see also Note, 

The De Facto Officer Doctrine, 63 COLUM. L. REV. 909, 909

n.1 (1963) (“The first reported case to discuss the concept of de 

facto authority was The Abbe of Fountaine, 9 Hen. VI, at 32(3) 

(1431).”). The 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.” Ryder v. 

United States, 515 U.S. 177, 180 (1995). In its most recent 

cases, however, the Supreme Court has limited the doctrine, 

declining to apply it when reviewing Appointments Clause 

challenges, see id. at 182–83, and important statutory defects to 

an adjudicator’s authority, see Nguyen v. United States, 539 

U.S. 69, 78 (2003).

In its traditional form, the de facto officer doctrine 

distinguishes between “direct” and “collateral” attacks on an 

officer’s authority. Andrade, 729 F.2d at 1496. A collateral 

attack challenges “government action on the ground that the 

officials who took the action were improperly in office.” Id.

(emphasis added). The de facto officer doctrine bars such

attacks. Id. A direct attack, by contrast, challenges “the 

qualifications of the officer, rather than the actions taken by the 

officer.” Id. (emphasis added). The de facto officer doctrine 

allows such attacks but they can be brought via writ of quo 

warranto only. Id. at 1496–97. To obtain quo warranto 

against a federal official, an interested party must petition the 
26

Attorney General of the United States to institute a proceeding 

in federal district court. D.C. CODE §§ 16-3501–02. If the 

Attorney General declines, the interested party can petition the 

court to issue the writ instead. D.C. CODE § 16-3503. Both 

the Attorney General and the court, however, have “broad 

discretion” to decline to make use of quo warranto. Andrade, 

729 F.2d at 1498.

This Court has rejected the traditional version of the de 

facto officer doctrine. See id. at 1498–99. Direct action via 

quo warranto is too “cumbersome,” we explained in Andrade, 

and “could easily operate to deprive a plaintiff with an 

otherwise legitimate claim of the opportunity to have his case 

heard.” Id. at 1498. We disapprove of any “interpretation of 

the de facto officer doctrine that . . . would render legal norms 

concerning appointment and eligibility to hold office 

unenforceable.” Id. Instead, we have held that collateral 

attacks on an official’s authority are permissible when two 

requirements are satisfied:

First, the plaintiff must bring his action at or around 

the time that the challenged government action is 

taken. Second, the plaintiff must show that the 

agency or department involved has had reasonable 

notice under all the circumstances of the claimed 

defect in the official’s title to office.

Id. at 1499. Both requirements are met here.

The first requirement, as stated in Andrade, appears on its 

face not to fit this case. The plaintiffs in Andrade filed a 

separate suit for injunctive and declaratory relief, id. at 1479, 

which explains the Court’s instruction to “bring [an] action at 

or around the time the challenged government action is taken,” 

id. at 1499 (emphases added). Here, by contrast, Southwest is 

subject to an enforcement action brought by the NLRB. In 
27

these circumstances, we have held, a party satisfies the first 

Andrade requirement if it challenges an officer’s authority as a 

defense to the enforcement action. See FEC v. NRA Political 

Victory Fund, 6 F.3d 821, 828 (D.C. Cir. 1993). Of course, 

the ordinary rules of exhaustion and forfeiture still apply. See 

United States v. L.A. Tucker Truck Lines, Inc., 344 U.S. 33, 38 

(1952); FEC v. Legi-Tech, Inc., 75 F.3d 704, 707 (D.C. Cir. 

1996). In the administrative proceedings below, Southwest 

raised its FVRA challenge as an exception to the ALJ decision. 

It therefore complied with the NLRA’s jurisdictional 

exhaustion requirement. See 29 U.S.C. § 160(e) (“No 

objection that has not been urged before the Board . . . shall be 

considered by the court,” absent “extraordinary 

circumstances”); id. at § 160(f) (incorporating § 160(e)); see 

also Trump Plaza Associates v. NLRB, 679 F.3d 822, 829 

(D.C. Cir. 2012) (“Cases interpreting section 10(e) look to 

whether a party’s exceptions are sufficiently specific to apprise 

the Board that an issue might be pursued on appeal.”). And 

the Board does not assert that Southwest’s challenge was

otherwise untimely or forfeited. Thus, we assume it was 

properly preserved.

Nor does the Board contest that the second Andrade

requirement—notice—is also satisfied here. To meet this 

requirement, “the agency . . . [must] actually know[] of the 

claimed defect.” Andrade, 729 F.2d at 1499. Notice ensures 

that the agency has a chance to “remedy any defects (especially 

narrowly technical defects) either before it permits invalidly 

appointed officials to act or shortly thereafter.” Id.; see also

Wilkinson v. Legal Services Corp., 80 F.3d 535, 538 (D.C. Cir. 

1996). Here, Southwest notified the NLRB of the defect in 

Solomon’s authority by excepting to the ALJ decision. See

Andrade v. Regnery, 824 F.2d 1253, 1256 (D.C. Cir. 1987) 

(“The filing of the underlying suit . . . in and of itself notified 

the government of appellants’ . . . challenge.”). The Board 
28

does not challenge the adequacy of this notice. Moreover, the 

notice requirement is satisfied if the agency learns of the defect 

from any source, not only the petitioner. See Andrade, 729 

F.2d at 1499 (“[We] do[] not require . . . that the agency’s 

knowledge of the alleged defect must come from the 

plaintiff.”). The Board has not informed us when it first 

became aware of Solomon’s problematic service. We 

therefore cannot say that its notice of the FVRA defect was 

inadequate. Accordingly, we conclude that the de facto 

officer doctrine does not bar Southwest from challenging 

Solomon’s authority.

Finally, we emphasize the narrowness of our decision. 

We hold that the former Acting General Counsel of the NLRB, 

Lafe Solomon, served in violation of the FVRA from January 

5, 2011 to November 4, 2013. But this case is not Son of Noel 

Canning8 and we do not expect it to retroactively undermine a 

host of NLRB decisions. We address the FVRA objection in 

this case because the petitioner raised the issue in its exceptions 

to the ALJ decision as a defense to an ongoing enforcement 

proceeding. We doubt that an employer that failed to timely 

raise an FVRA objection—regardless whether enforcement 

proceedings are ongoing or concluded—will enjoy the same 

success. See 29 U.S.C. § 160(e); Andrade, 729 F.2d at 1499.

For the foregoing reasons, we grant the petition for review, 

deny the cross-application for enforcement and vacate the 

NLRB order.

So ordered.

 8

 Noel Canning v. NLRB, 705 F.3d 490 (D.C. Cir. 2013), aff’d, 

134 S. Ct. 2550 (2014).