NATIONAL LABOR RELATIONS BOARD, Petitioner v. SW GENERAL, INC., DBA SOUTHWEST AMBULANCE, Respondent
Interviewer(s): Anthony M. Kennedy, Samuel A. Alito, Jr., Stephen G. Breyer, Elena Kagan, John G. Roberts, Jr., Ruth Bader Ginsburg, Sonia Sotomayor
Interviewee(s): Ian H. Gershengorn, Shay Dvoretzky

John G. Roberts, Jr.: We'll hear argument this morning in Case 15-1251, National Labor Relations Board v. Southwest General, Incorporated. Mr. Acting Assistant Attorney General.

Ian H. Gershengorn: Mr. Chief Justice, and may it please the Court: The Vacancy Reform Act's limitation on an individual serving as both the nominee and as the acting official for a single office applies only to someone who is currently the first assistant in that office and is acting pursuant to the automatic service rule set forth in Subsection 3345(a)(1). Both the GAO and OLC adopted that interpretation of the Act shortly after its passage. And in the nearly two decades from passage of the Act until the D.C. Circuit decision here, Presidents of both parties have made scores of nominations and designations based on that interpretation of the text without recorded objection from even a single Senator or staff member.

Elena Kagan: General Gershengorn, can I ask: As you read this statute, suppose you just took out these words "notwithstanding Section" -- "Subsection (a)(1)." What would then the effect of the statute be?

Ian H. Gershengorn: So, Your Honor, I think that our textual argument would be much more difficult, and the effect of the statute would be effectively to override (a)(1), (a)(2), and (a)(3). The "notwithstanding" clause really is the anchor of our textual interpretation.

But its strength, I think, comes not only from its text, but also how it fits so well with both the history, structure, contemporaneous interpretation, and practice.

Elena Kagan: But just focusing on text for a minute.

Ian H. Gershengorn: Sure.

Elena Kagan: If that's true, if the entire textual argument really does rest on the "notwithstanding Subsection (a)(1)" -- I mean, typically when you have a "notwithstanding" clause, it means, you know, take away Subsection (a)(1), not, you know, close your eyes to Subsection (a)(1)

But it doesn't do anything more than that. So why do you think it should be taken to do something more than that in this case?

Ian H. Gershengorn: Your Honor, we think that because it's a routine application of the expressio unius canon in the context of the "notwithstanding" clause.

And so we think it has power for at least three reasons. First -- and we're on pages 82A and 82 -- 83A of the government's brief -- the -- the expressio unius implication is very strong here, because if you read the statute on page 82A, (a)(1) sets out the first assistant rule, (a)(2) sets out the -- the PAS rule for a Senate-confirmed official, and (a)(3) then sets out the act -- the career official or the agency with -- agency official with substantial service. The very next words in the statute are "notwithstanding Subsection (a)(1)." So after (a)(1), (a)(2), and (a)(3), Congress said, "Notwithstanding only (a)(1)." We think the expressio unius counter is particularly powerfully, because Congress could have said, if we're -- we wanted to do a respondens se, notwithstanding subsection (a), but it did not do that. And it's particularly powerful as well, because the "notwithstanding" clause, as Your Honor suggests, is one that Congress uses all the time.

Congress will say, notwithstanding any other provision in the code, notwithstanding any other section of the --

Elena Kagan: But can I give you a hypo?

Ian H. Gershengorn: Sure.

Elena Kagan: So the hypo is, I'm at a restaurant, and I -- I'm talking to my waiter, and I place three orders.

I say, number 1, I'll have the house salad.

Number two, I'll have the steak.

Number three, I'll have the fruit cup.

And then I tell the waiter, notwithstanding order number three, I can't eat anything with strawberries. So on your theory, the waiter could bring me a house salad with strawberries in it, and that seems to me a quite odd interpretation of what's a pretty clear instruction: No strawberries.

Ian H. Gershengorn: So, Your Honor, I think this really is fundamentally different for a number of reasons. First of all, we have before us, in contrast to your -- your waiter hypothetical, we have before us the very history of this clause which suggests an interpretation very much in line with the government's interpretation.

Elena Kagan: So I -- I take it, you know, you have some arguments, some strong arguments on -- on history and on practice, but, you know, again, I'm just sort of -- isn't that just a peculiar way to understand the, you know, notwithstanding order number three, no strawberries?

Ian H. Gershengorn: So I don't think it is, Your Honor, and I -- I -- in a footnote, the -- if, for example, you had been a routine -- a regular member of that restaurant -- regular diner at that restaurant and had always understood that you couldn't have strawberries with only one of those things, then the waiter would be justified in interpreting it differently, and we have that contemporaneous practice here. But given Your Honor's textural point only for the moment, I do think that's exactly what this Court held in Preseault, in -- in -- where there was a "notwithstanding" clause, that said, notwithstanding the provisions of the Act, funds -- that you have to rely on advance appropriations, and this Court said, no, that doesn't override the existence of the Tucker Act. I point the Court as well to the case cited in our brief, SEC v. Mount Vernon Memorial Park, which is a situation extremely similar to this, if I could just take a sec on that because I think it will help. That was an interpretation of the Investment Company Act, and it said, "An investment company is an issuer who meets one of the following: (a)(1), (a)(2), and (a)(3)." And for (a)(3), there was something called a (b)(1) limitation, and it said "Notwithstanding (a)(3), an issuer is" -- "you're not an issuer unless you're in the business of issuing securities." And what the Court said was that the issuer who fell within that limitation, the same (b)(1) limitation, nonetheless was an investment company under (a)(2) precisely because the introductory limitation was limited to notwithstanding (a)(3), and that case is cited in our brief.

I think Shomberg is the same. Our point, Your Honor, is not that it is inevitably that way.

The expressio unius canon is never -- is -- is a canon.

It's an aid to interpretation, and it may be that, for example, in your restaurant hypo, that would be a -- it would be clear from context.

But here we really do think that all of the other aids to statutory --

Samuel A. Alito, Jr.: Isn't there another explanation for why the "notwithstanding" clause of (b)(1) refers only to (a)(1)? If it -- without that, there would be a direct conflict between (b)(1) and (a)(1) because (a)(1) says "shall," the first assistant shall perform.

Whereas (a)(2) and (a)(3) say that the President may do certain things.

So there isn't the same kind of direct conflict between the remainder of (b)(1) and (a)(2) and (a)(3) as there is with respect to (a)(1).

Ian H. Gershengorn: So, Your Honor, that is the argument that respondents make, and we simply disagree with that.

We think there is a direct conflict between (a)(2), which says the President may appoint this person as an acting, and (b)(1), which says the President may not appoint -- appoint a person as an acting when that person is also the nominee. That (b)(2) is a very -- is a designation and delegation of power to the President to make a designation, and it is every bit as broad as the -- as the (a)(1) example.

Samuel A. Alito, Jr.: But it's not quite the same kind of conflict.

To -- to pick up on Justice Kagan's restaurant scenario and modifying it a bit, if she -- if she were to say, or if I were to say to the waiter, "You may bring me the soup of the day, but you may not bring me soup that contains shellfish because I'm allergic to it," there wouldn't be a conflict of the same sort, would there, between those two statements?

Ian H. Gershengorn: So, Your Honor, I do think that there -- I do think there would be, and I think in particular, even apart from the restaurant hypo itself, the whole purpose of (a)(2) is to give the President the power to make a designation when he believes there's a superior official serving elsewhere in the government.

That grant of power is every much restricted by (b)(1) as (a)(1) absent the introductory clause.

The -- the (b)(1) says the President may do this.

(b)(2) says in some circumstances he may not do this, and that is precisely the kind of conflict that Congress was getting at. But even if you thought the text had some ambiguity here, I really do think that the other aids to statutory construction which this Court's have looked to -- this Court has looked to -- over and over, really do work in our favor and really not at all in Respondent's favor here. The -- principally, if one looks at the contemporaneous interpretation and consistent practice, what one sees is the sponsor of the legislation identified precisely the government's interpretation. Both GAO and OLC adopted that interpretation. President --

Ruth Bader Ginsburg: You went into detail without any elaboration.

It's just a question, and here's the answer, and there's no reason for the answer from OLC.

As far as GAO is concerned, they didn't say precisely what happens with category two and three.

Ian H. Gershengorn: So, Your Honor, I think -- so, two points -- a number of points, but two responding directly to both of those. With respect to OLC, our point is not that this Court should defer to it or defer to the reasoning in it.

Our point -- our point is, from the very beginning, from the moment the statute was passed, Congress was aware of the interpretation the Executive Branch was putting on it and raised no objection. And with respect to GAO, the GAO letter I think is quite significant because GAO recall under Section 3349 is the Congressionally-designated watchdog for the Vacancies Act, and when GAO issued its letter, which I -- I respectfully disagree, Your Honor, I think the GAO letter is quite clear. If you look at it, what it says is there are four ways to make an acting appointment, and for number 1, (a)(1), it says "And you can't be the nominee." For the other three, it does not have that, and the whole point of that letter was to give guidance to Congress.

So that letter was circulated not just to the Senate majority and minority committees, but to the Office of Presidential Personnel, to the White House counsel's office, to OPM and OMB.

John G. Roberts, Jr.: Well, I think you're putting a significant burden on Congress to sort of speak up.

There's sort of an estoppel against Congress. If they don't speak up in every instance where they think some prerogative or interpretation is -- is being misapplied or prerogative taken away from them, then there can -- deemed to have acquiesced in it.

And this is a context in which that might be particularly inappropriate, because maybe the particular appointment contravenes your -- your theory. But a significant number of people in Congress want to see that vacancy filled, you know, under -- even though it contravenes these more general provisions, and that might not be a particular battle they want to fight at that time.

I -- I think it's a very serious burden to impose on the Legislative Branch.

Ian H. Gershengorn: So, Your Honor, if -- we're not imposing a burden on the Branch, but we are asking you not to turn a blind eye to what really happened in this context. What lead up to the Vacancy Reform Act was -- was decades of Congress raising exactly the kind of objections that one would expect.

There were oversight hearings.

There were GAO letters.

There were congressional research reports.

There were letters back and forth to the Attorney General complaining about the way the Justice Department and the Executive Branch was handling the vacancies, and -- and ignoring the Vacancies Act. Then what we have is an interpretation -- then what we have is the Vacancies Reform Act and an interpretation set out by the author of the very provision we're talking about, Senator Thompson, and opened discussion by GAO, the watchdog of the Vacancies Act, designated by Congress and by OLC, and then silence.

So we're not putting a burden --

Ruth Bader Ginsburg: But you have on the other side -- was it Senator Thompson, you have Senator Byrd who seemed to be putting on it the construction that Respondents do.

Ian H. Gershengorn: So, Your Honor, I think that actually Senator Byrd is quite -- is quite vague about that and omits the "notwithstanding" language. But even if you thought that was sort of a draw, I would note that Senator Byrd, who again was not shy and had weighed in on these Vacancies Act issues, never raised an objection when the -- when Presidents across three administrations continued it into --

Anthony M. Kennedy: I'm sorry.

I think it should be noted that, you know, it's one thing to consult legislative history to understand the -- the whole context in which the -- the Congress was acting, but it's quite another thing to rely on an isolated statement and later contradicted by -- by another Senator, and even for those who at times find legislative history helpful, I think this is where it's at its weakest and most unpersuasive.

Ian H. Gershengorn: Your Honor, I disagree -- I don't -- I don't disagree with Your Honor. It is merely one, though, of a consistent stream given the OLC and GAO opinion. So I really would like to get back to the Chief Justice's point, if I could.

It is not at all an estoppel by Congress.

It is -- the reason why this Court has put -- should put particular weight on this silence here is because it reflects a contemporaneous and uniform interpretation of Congress' understanding of how its own powers are being -- are or are not being infringed.

John G. Roberts, Jr.: How is that -- I'm sorry.

Ian H. Gershengorn: And given the past history --

John G. Roberts, Jr.: How is that not -- how is that not an estoppel?

Ian H. Gershengorn: It's not an estoppel, Your Honor.

What it is, is further evidence that the interpretation of the plain language that we're putting forward is correct.

The language supports it.

The -- everybody understood and has acted for 20 years on that assumption.

John G. Roberts, Jr.: Sounds like the point I was trying to make, is: You are putting weight on the fact that they didn't do anything.

And you say you've got other arguments, too, and I appreciate that, but what did they do, then?

Ian H. Gershengorn: Absolutely, Your Honor.

No, I am putting weight on what they didn't do. To me, it is very much the dog that didn't bark. Congress had been barking quite loudly and vociferously for decades on this very issue.

And then it adopted a statute that was interpreted by its own watchdog in a certain way, and then the barking stopped.

And it seems to me this Court is really ignoring reality to not -- to not see that that has important weight.

Anthony M. Kennedy: What would be the consequences if we affirm? Your brief didn't list a great parade of horribles.

It seems to me that our system is quite capable of accommodating the Respondent's argument.

And on that point, eight judges have looked at this, and every one of them has come to the conclusion that the Respondent's reached.

Ian H. Gershengorn: So, Your Honor, I believe there are important consequences. So, first, Congress understood that there are often important positions that don't have first assistants to take over.

To cite one at page 11A of the chart, there's an appointment of Linton Brooks, who was a -- who was named as the director in the National Nuclear Security Administration.

They're the folks that oversee nuclear counterterrorism. When the Senate-confirmed director of that agency left, there was no first assistant, and the President, President Bush, put in Linton Brooks both as nominee and to act to take over. So Congress was well aware that there often weren't first assistants around.

Elena Kagan: Can I ask you about the consequences going backward?

Ian H. Gershengorn: Yes.

Elena Kagan: Your brief did not talk about this, but do you think that if we find against you, that that subjects to some uncertainty actions that these 100-plus officials took?

Ian H. Gershengorn: Yes, Your Honor.

Elena Kagan: If so, what actions?

Ian H. Gershengorn: So, Your Honor, it does -- and that's the second point to Justice Kennedy's question. It does subject the past officials to substantial uncertainty.

In truth, we don't know exactly the extent of it, because we don't know when we'll have defenses of waiver.

We don't know when we might, for some things, be able to ratify.

But there's no doubt that there are significant reliance interests that the Executive Branch --

Ruth Bader Ginsburg: What did Judge Henderson say about that? This is not going to be a floodgate situation, because you would have to raise it.

Here, it was raised before the ALJ.

And for these other cases where the vacancy was long filled, there would be no possibility of making, very late in the day, an argument that you didn't make before.

Ian H. Gershengorn: So, Your Honor, I'm in a tough position, because I don't want to argue too hard against defenses that we're going to want to assert later.

But I do think what Judge Henderson was talking about in particular was the NLRB situation, which is a different situation, because there are particular hearings and the NLRB has an ability to ratify that other agencies don't.

Elena Kagan: Suppose you didn't have those defenses, because, you know, I'm not sure why you would necessarily, given that the statute says they're void ab initio if people take it as against these procedures.

So if you didn't have those defenses, as you look down the list of these officials, what kinds of actions are you most worried about being unsettled?

Ian H. Gershengorn: So, Your Honor, we have, for example, Adam Szubin, who was the Undersecretary For Terrorism and Financial Crimes.

He does the terror-sponsored designations in the Treasury Department.

We have the deputy attorney general.

We have the head of OPM.

These are people who issue -- may issue regulations, who make designations, who make important decisions in the Executive Branch. It is, I think -- the reliance interests of the Executive Branch are quite strong here.

This is a situation -- and we have put very senior officials in place at the -- with the understanding that what they were doing based on -- that what they were doing was lawful at the time based on the -- based on the language of the statute and the interpretation provided on it.

Elena Kagan: Can I just press you a little bit?

Ian H. Gershengorn: Sure.

Elena Kagan: I mean, those are all very important positions that you named, but it's not absolutely clear to me that those -- that there are categories of decisions that those people take that we should be worried about.

And if there are, I would like to know about those categories of decisions.

Ian H. Gershengorn: So, Your Honor, I can't list them chapter and verse.

But I do think the kinds of things we're worried about are rulemakings by the heads of agencies, the -- particular designations by -- by the senior officials, and decisions on litigation and other things that may be subject to challenge. We have not gone back and catalogued all of the potential ramifications, but we do think that with over 100 officials over the course of 20 years, the effects of this are really quite significant.

Anthony M. Kennedy: Does that 100 include or exclude military officers? Do you know?

Ian H. Gershengorn: It is not including military officers, Your Honor.

These are -- these are the acting officials in the Executive Branch, but I don't think they're military officials. The interpretation that the -- that the Court is putting forward -- if I could make a couple of points on the structure and why we really don't think that this is -- that this is the right way to reason and why our way makes sense -- we think what's reflected in the Vacancies Act is a judgment by Congress that before an individual serves as both the acting and the nominee, that there be one of two protections: that the individual either have been Senate-confirmed before, or that they meet a length-of-service requirement. So in (a)(2), what one sees is that that's in a prior Senate confirmation.

In (a)(3), it's a length of service.

And if one looks at (c)(1), which addresses Senate-confirmed officials whose terms have expired, again, it's Senate confirmation. The entire purpose of (b)(1) is to extend those protections to first assistants.

So what (b)(1) does is, for first assistants, it puts on a length-of-service requirement.

And then in (b)(2), it exempts from that length-of-service requirement what -- the very individuals who have received prior Senate confirmation.

The package works as a seamless whole. Congress was not putting on a first-assistant requirement on a PAS appointee from elsewhere in the government, and it was not putting on a first-assistant requirement on a career agency official moved into an acting position.

What it was doing was making sure that first assistants who were both nominees and the acting had -- had one of the two protections. It's also consistent with the way the legislative history is, and the drafting history, with respect -- I think this is very important -- to the PAS positions.

It had been the President's prerogative expressly under the Vacancies Act, back to 1968, to take a PAS officer and put him into an acting position and then still be able to nominate him.

The first draft of the bill preserved that. So after all of the rancor, after all of the unhappiness of the Vacancies Act, the first draft of the bill allowed an acting officer to come in automatically under (a)(1), whereas a PAS under (a)(2), and the (b)(1) restriction, only applied to (a)(1)

There's no dispute. And so then what happened? Then there was an objection that the bill didn't give enough authority to the President, and so changes were made to give the President more authority.

And what Respondents would have you believe is that Congress overturned sub silentio, without a single complaint, 130 years of Executive Branch practice.

Elena Kagan: Well, why do you -- why and how do you think that that change was made, then? Because the change clearly was made.

In the initial draft, it obviously applied only to first assistants; and then in the final draft, not so obvious at all. And, you know, I agree with you there's no explanation, but there is a change. Are you suggesting it was, you know, just a mistake that somehow happened?

Ian H. Gershengorn: Absolutely not, Your Honor.

And if you'll bear with me, I can explain that. The initial draft of (a)(1) required a -- provided that the person be a first assistant to the officer.

And (b)(1) read as it does. When Congress -- Congress changed that to allow the appointment of officers who were not -- who were -- after the officer dies, and so they changed it to first assistant to the office.

The significance of that is that somebody could be appointed first assistant even after the vacancy arose.

That was a very big change.

If Your Honor looks at page 19A of the -- of the Appendix to the petition where the bill is set out, the original bill, the way the bill read, it -- it put the restriction only on the person who was serving at the time of the vacancy.

So if the -- if Congress had left (b)(1) the way it was, it would have created a very odd situation where at the current serving first assistant would be subject to (b)(1), and the after put in, that someone put in later, was not subject to (b)(1). So what did Congress do? Congress changed it so that the limitation applied to all first assistants.

But then it added "notwithstanding" (a)(1), and that is the critical thing.

So in other words, Congress did it, made this change to (b)(1), precisely to deal with the after-appointed first assistants, and then it added the "notwithstanding" clause to say notwithstanding only (a)(1)

And so it does seem to me, Your Honor, that it was a very important change. And I think if Your Honor chases -- chases through the legislative history and looks at 19A and way the provision works, you will see that that was the reason -- that that was the reason for the change.

Ruth Bader Ginsburg: If you -- if your -- if your interpretation is the correct one, what is your answer to the horrible that appears in the -- in the Respondent's brief at 33 to 34? They say if you read the statute the way the government does, then you could have somebody in there who has never been read -- approved by Congress, by the Senate.

You could have someone there upwards of, they calculate, 630 days.

Ian H. Gershengorn: So, Your Honor, the response to that is there's no doubt that someone can serve for that length of time, and that Congress understood that.

That's the consequence of the time limits in the Vacancies Act. What Respondents are arguing is that should only be true for first assistants but should not be true for -- for individuals that the President appoints under -- designates under (a)(2) and (a)(3)

And it's that irrationality that we think the statute -- it's that difference that we think the statute just doesn't justify. So just to be clear: It is -- it is crystal clear under both Respondent's view and our view that an individual can serve for a very long period of time. That's the consequence of the -- of the 210-day -- 210-day period and the various ways you can extend it. The question before you, though, is whether it makes sense that Congress decided only the first assistants could do that.

But there are real reasons to doubt that.

(A)(2) and (a)(3) were put in precisely to give the President himself -- and it could only be the President; it's not delegable -- the chance to choose a superior -- a superior officer, a better -- a better placed, the more talented officer than the first assistant.

It seems very odd in that situation to say that the 1100-day scale, or however many days, could only served by the first assistant but not by someone chosen by the President for that very reason under (a)(2) and (a)(3). If I could reserve the balance of my time.

John G. Roberts, Jr.: Thank you, Mr. Gershengorn. Mr. Dvoretzky.

Shay Dvoretzky: Mr. Chief Justice, and may it please the Court: Four features of the FVRA's text and drafting history compel our interpretation. First, Congress used the broad terms "a person" and "this section." Second, "notwithstanding" is a term of expansion.

It does not contract the broad meaning of "person" and "section." Third, the government's interpretation makes Subsection (b)(2) superfluous in multiple ways. And fourth, at the time that Congress added (b)(2), it deleted language from the initial draft of (b)(1) that expressly limited the provision to first assistants.

The revised language encompasses all acting officers.

Anthony M. Kennedy: I -- I agree that "person" and "section" are very strong arguments for you. Suppose what the statute said is "notwithstanding (a)(1) and (a)(2)"? And what -- what would then be your argument with respect to whether or not it affected (a)(3)?

Shay Dvoretzky: I still think in that circumstance that "person" and "section" would apply to (a)(3)

But the reason that that would be a different case is that there is no meaningful distinction between (a)(2) and (a)(3) and the role that they play in the statute. There is a meaningful distinction between (a)(1) on the one hand and (a)(2) and (a)(3) on the other hand.

And it makes sense because of that distinction that Congress would single out just (a)(1).

Elena Kagan: I don't get that, Mr. Dvoretzky.

And maybe this follows the government's line of thought, but, you know, I've been -- the (a)(1) says, "The first assistant shall be the acting officer." And then (b)(1) says, no, she may not be.

Right? And (a)(2) and (a)(3) doesn't use the words "shall," but it says, the President may appoint any of these people. And then (b) comes along and says, no, the President can't appoint some subset of them. So the basic conflict seems to me to be the same in both cases, which is that the second clause says not so fast, not with respect to those people.

Shay Dvoretzky: Justice Kagan, the difference is that (a)(1) is a self-executing provision. It automatically places the first assistant into the vacant office, and (b)(1) then takes the person out. (A)(2) and (a)(3) are grants of discretion that has to be understood side by side with --

Elena Kagan: But those grants of discretion are very broad, and then (b)(1) again takes the person out, takes the person out of the grant of discretion, just as it takes the person out of the self-executing provision before them.

Shay Dvoretzky: They -- they are broad only if read in isolation, but they can't be read in isolation as a statutory matter.

And oftentimes, the President doesn't read them in isolation as a practical matter. In other words, there is no way to avoid the conflict created between (a)(1) and (b)(1) because (a)(1) puts the person in the job and (b)(1) takes them out. If the President, however, simply reads (a)(2) and (a)(3) together with (b)(1), then he knows what the limitations are on his discretion, and he can avoid that ripping out.

It's that ripping out of the nominee from acting service that creates a particularly stark conflict that Congress sought to address through the "notwithstanding" (a)(1) clause.

Elena Kagan: I have to say, I find it a little bit odd to think of this drafter thinking of the kind of distinction you're making.

Say, well, this is self-executing and this is not self-executing.

It's only a broad grant of discretion.

And then not realizing that just by virtue of saying "notwithstanding (a)(1)," the statute creates -- raises this question about, well, you've said (a)(1) but not (a)(2) or (a)(3)

What does that mean? I mean, that seems just like a very strange drafter to me, somebody who is so in the weeds that they can't figure out that pretty obvious objection to what they're doing.

Shay Dvoretzky: Well, perhaps one way to think of it, and this goes back to your first question of the argument, what if you had a statute that didn't have any "notwithstanding" clause at all at the beginning of (b)(1)? In that situation it would be clear that "person" and "section" would make (b)(1) applicable to (a)(2) and (a)(3). There would be a question in that situation, though, whether (b)(1) also applied to (a)(1), first of all, because of the starkness of the conflict between (a)(1) and (b)(1), and second of all, the government argues that the general versus specific canon would apply there, but it wouldn't necessarily because the general versus specific canon is typically invoked in order to avoid superfluity where you have one general provision and a specific provision that would be meaningless if not read as an exception to the general. Here, however, in -- in the hypothetical statute without the "notwithstanding" clause, you wouldn't have superfluity concern because (b)(1) would apply to (a)(2) and (a)(3)

And so you'd be left with a particular question, not about (2) and (3), but just about (1)

And so it makes sense that Congress singled out (1) because of the particular role that it's playing in the statute.

Sonia Sotomayor: So what about (c)(1)? Isn't, under your reading, it -- it will never be in effect?

Shay Dvoretzky: No.

No, Your Honor.

First of all, the officials under (c)(1) are not acting officials.

They are receiving term extensions.

The language of (c)(1) talks about those individuals continuing to serve in the office. (a)(1) through (3) all talk about performing the functions and duties of the office temporarily in an acting capacity.

The legislative history likewise talks about three categories of acting officials, and it consistently talks about (a)(1), (2), and (3)

And so (c)(1) is just functioning separately.

That's just a different thing.

Sonia Sotomayor: So why aren't (a)(2) and (a)(3) functioning separately from (a)(1)? If -- if (c)(1) can function separately, and that was the thought of the drafters, why don't we carry it to its logical conclusion? (a)(1) is separate from -- they are written almost identically.

"The Presidents may direct," "may appoint," may -- they are all sort of exceptions to the rule.

Shay Dvoretzky: The reason that (c)(1) functions separately is that it describes the work that the official is doing in a different way.

It describes continuing to serve in the office.

(a)(1) through (a)(3) all describe the work that the official is doing in the same parallel way, performing the functions and duties of the office temporarily in an acting capacity. That's why the three categories of acting officials are (a)(1) to (a)(3), but (c), by its text, is just doing something different.

Stephen G. Breyer: Why -- why -- the thing -- I'd like to go back to the Solicitor General's last point, and that's where I'm having -- I have a puzzle. I'd like to hear what you have to say. I mean, for the purposes of this question, I'm assuming all the text, which sounds to me, if a person came from Mars, that's what he would expect a legal argument to be like. The -- the number's all over had the place, and I will also assume that for every chef salad there is a countervailing strawberry shortcake; all right? So -- so everything balances out.

Assume. Now, it seems to me that this exception here is saying this.

We have the Secretary of the Treasury. He has five assistants.

Each is a presidential appointee.

One day, secretary -- Assistant Secretary of the Treasury number two dies, and now the President can fill that role with any one of three people on an acting basis: His first assistant, some other assistant secretary or deputy in the treasury department, or a GS-18. Have I got it right so far?

Shay Dvoretzky: Yes, Your Honor.

Stephen G. Breyer: I'm using examples.

All right. Now, what this statute as you read it would seem to say, if you appoint whichever one you choose, put any one of those three people in, go ahead, do it. Now, if you nominate those, one of those three to a presidential position roughly, they are out.

All of them are out.

Oh, wait.

There's one exception.

The first assistant is not out if he served for 90 days as first assistant. Have I got the statute right?

Shay Dvoretzky: Yes, Your Honor.

Stephen G. Breyer: Okay.

I would just wonder, were I from Mars, what's the point of such a statute? (Laughter.)

Stephen G. Breyer: Why is it you're perfectly willing to have stay there and do the acting job the first assistant, if he served 90 days before, but you're not willing to have served the acting job this guy who was a GS-18 in the same department, or the person who was an assistant secretary of the Treasury, number two. Why? I can't think of an answer given your interpretation. I can think of an answer given their interpretation.

I say what they were worried about on their interpretation were our friends number two and number three, the GS-18 and the Assistant Secretary number two.

They can continue to serve, on their interpretation. Hey, why did they do this? The name of that explanation is called Bill Lann Lee.

Because that was the problem that gave rise to the statute, and on their interpretation they passed some words that solved that problem.

So there we are. I get an explanation for his, assuming that you like purposes more than you like numbers.

I get an explanation on his, and I don't get an explanation on yours.

So that's what I would like you to respond to.

Shay Dvoretzky: So I'd like to respond, first of all, to why it makes sense to treat first assistants differently, and second of all, to Bill Lann Lee and how that is relevant to the statute. The legislative history explains in multiple places that first assistants are particularly well-suited to be the acting official because they represent continuity and regularity in the office. We know from (b)(1) that Congress was concerned with at least some acting service by nominees. And the reason that it created an exception for first assistants, even as nominees, is that they are the least likely to represent change in the agency.

It's just the deputy being pushed up one spot, and that's continuity and regularity. On the other hand, particularly when Congress added for the first time in the FVRA this category of GS-15s, potentially thousands of employees within an agency, there's no accountability there to Congress and there are potentially much greater concerns about those individuals serving as acting officials while the nominee.

The facts of this case illustrate that concern. The President designated Mr. Solomon to serve as the acting general counsel.

Some months later he nominated Mr. Solomon.

Perhaps emboldened by the nomination, Mr. Solomon then took some very controversial actions that led the Senate promptly to make clear to the President that this individual was not going to be confirmed. Rather than at that point finding a new nominee, the President allowed Mr. Solomon to continue serving even -- even after the nomination had been returned by the Senate, waited four months before renominating the same individual, and then only a few months later after that, finally came up with a nominee that the Senate approved. In the meantime, Mr. Solomon served, even though the Senate quite clearly did not consent to him, served in the job for -- for over three years. And so it is that kind of concern about GS-15s that's fundamentally different from a first assistant who represents continuity and regularity in the office.

Ruth Bader Ginsburg: If -- if Mr. Solomon had been confirmed, you -- you say that that would be all right, even -- even with the erroneous nomination of him while he was acting. But -- so he's confirmed for the permanent office.

Yet, under your reading, everything that he did while he was acting is invalidated; is that right?

Shay Dvoretzky: Well, it's not necessarily invalidated.

It's subject to the defenses that the D.C. Circuit identified at the end of its opinion, but under our reading of the statute, when he was nominated, he needed to step aside and he couldn't serve as the permanent official until the Senate confirmed him.

Ruth Bader Ginsburg: So his confirmation would be irrelevant to what happens to what was done prior to the confirmation?

Shay Dvoretzky: That's right.

His confirmation does not in effect ratify the actions that he took when, in our view, he was improperly serving as an acting official.

Ruth Bader Ginsburg: If -- there's one other peculiarity of this.

This is why I mentioned the 90 days, but a first assistant who is also what they call a PAS, presidentially-appointed, Senatorial-confirmed, such a first assistant without any 90 days can simultaneously be acting; and a nominee. But why couldn't the people in category two, that is people who are presidentially-appointed, Senatorially-confirmed in other agencies, why wouldn't the same -- why wouldn't they be treated the same way if the stress is on having someone that the Senate wants approved?

Shay Dvoretzky: Because Senate confirmation for one position is not fungible with Senate confirmation for another.

When you're talking about a Senate-confirmed first assistant, that again is a combination of Senate confirmation and somebody who's in a first assistant position representing continuity and regularity in the position. Somebody who is confirmed for a completely unrelated Senate position is much more of an end-run around the Senate's advice-and-consent role for the vacant office, and the legislative history includes examples -- includes discussion of Congress' concern about PAS officials who are being moved around from one position to the other.

John G. Roberts, Jr.: You -- you want to respond to Justice Breyer's point about Mr. Lee?

Shay Dvoretzky: I do want to get back to the point about Mr. Lee. The concern about Mr. Lee was not just that he was brought in from the outside at the last minute, which is what the government emphasizes.

If that were the concern, Congress could have imposed a restriction on short-serving first assistants as acting officials. Instead, what Congress imposed was a restriction on acting officials -- acting officials who are also the nominee, and there's no reason to think that Congress' concern about nominees serving as acting officials was limited just to first assistants.

The text doesn't support that concern, and as the example of Mr. Solomon's own service illustrates, in practice, Congress can have very serious concerns about people outside of the -- the first assistant category serving as the acting official while also the nominees. And -- and that's a vivid illustration of the example in our brief of somebody who can serve almost an entire presidential -- presidential term as the permanent -- as the acting official, even though Congress has made clear that the individual is not somebody that -- that the Senate will consent to as the permanent nominee.

Elena Kagan: Can I ask Mr. Dvoretzky about the post-enactment history? Because, you know, we're generally reluctant to demand that Congress objects to things. But on the other hand, the -- the history here is so strong.

All of these appointments, 100-plus of them, in a time when Congress and the President -- I mean, this is -- this has been a time where there's been a lot of partisan bickering over appointments, and you would think that in that context, if anybody had thought that this statute could be read differently, we would have heard about it, and yet we hear absolutely nothing. So how do you explain that?

Shay Dvoretzky: Several points in response to that. First, just identifying these FVRA violations is not an easy thing to do.

It took the government months of study to do it, and it's an arcane technical issue. Second of all, even if Congress had identified the violations, what was it supposed to do about them? If the nominee is somebody that the Senate wants to approve, there's no point in rejecting them based on their past improper service.

That's not what the FVRA requires.

And doing so would only prolong the vacancy with another acting official that Congress hadn't approved. If Congress doesn't approve of the nominee, odds are it has a reason for doing so that is much more of a headline issue than the FVRA.

The FVRA does not make the front page of the Washington Post.

It's other objections.

Elena Kagan: I don't know.

Wouldn't you say something like I don't like this nominee, and anyway, it's illegal for the President to make this nomination?

Shay Dvoretzky: You might add that, but it would be a gratuitous addition to what is really the fundamental concern with the nominee.

Elena Kagan: Seems like it gives it some real extra oomph, right? (Laughter.)

Elena Kagan: It's not just -- it's not just a matter of my preferences versus the government's preferences.

Now the President's preference is illegal. It's off the board.

Congress has said he can't do it. Who wouldn't say that in that circumstance?

Shay Dvoretzky: Somebody who then was going to be pressed and had to explain the technicalities of why the appointment was illegal. (Laughter.)

Stephen G. Breyer: You -- you have been -- and I understand -- you've been concerned about instances in which there is controversy over appointment.

But there are thousands of jobs in the government where they have to run departments where there's no controversy, you know. And people leave, or they die, or something happens; there's a vacancy.

And the main institutional imperative is keep the job being done.

Keep the office working.

So an obvious person is to say Mr. First Assistant, you carry on.

Okay? And maybe you bring in somebody from next door.

And maybe you look for a GS-18 in the department.

You know, the guy next door has a presidential appointment.

So you put him in the job. That's all.

No problem. And why all of a sudden Congress would, in these thousands of instances where there's no problem, or hundreds anyway, Congress would say, if you decide to appoint him permanently, you have to take him immediately out of the acting position, and there's more disruption in the department.

Why would anyone want to do that? Now, I could see they might want to do it with the first assistant where it's a runaround, and they have an idea that it's a runaround when he hasn't served as first assistant for more than 90 days.

Then you might say, well, why him? Maybe they were just trying to get this controversial guy in. In other words, as -- as an administrator in noncontroversial matters, I can understand their interpretation more easily.

But you will tell me that I'm wrong because?

Shay Dvoretzky: The -- the first assistant restriction in (b)(1) reflects that Congress clearly was concerned about some acting officials who are also the permanent nominee.

Congress saw that as a particular affront to its advice and consent role, and that exemplifies a lot of the problems that led to the enactment of the FVRA in which the Presidents -- Presidents of both parties were putting in their ultimate choice for a position long term without Senate confirmation. There's no reason to think that that concern is limited only to first assistants coming in from the outside.

Those concerns are equally applicable to any of the thousands of GS-15 employee within an agency. And it's not surprising that, in the same set of revisions when Congress added (a)(3), it made -- made those GS-15s eligible to serve, that it also thought, well, perhaps this has the potential for mischief. Perhaps this has the potential to allow just as much of an end -- of a runaround of our advice-and-consent role as the first assistants. Likewise, with respect to the PAS officials, it's true that PAS officials had previously been able to serve as both permanent nominees and acting officials, but the FVRA rethought this entire area of vacancies. And it's not surprising that, while -- while Congress was also prohibiting GS-15s, this new category from serving as acting officials while nominees, that it also swept in the (a)(2)s as well. There's also a practical point about how this actually operates.

Much of the time, over 30 percent of the time, the President nominates and designates, either at the same time, or -- or the President nominates first and designates second after apparently becoming impatient with the confirmation process. And so, Justice Breyer, your hypothetical -- your hypothetical was asking why does it make sense to take the official out of the job once they are nominated? Often that doesn't even happen.

Often the President is nominating the person and then making them the acting official later.

So you're not taking the person out of the job. Moreover, our interpretation of the statute removes one person from the pool of acting officials. There -- there is not -- this is not a situation where we are taking out the thousands of GS-15s or PAS officials.

There are lots of people available to serve. We're taking out the one person that reflects the biggest affront to Congress' advice-and-consent role if allowed to serve while also nominating.

Sonia Sotomayor: And defeating the efficient running of the department at the same time, because if the person has been running the department, now you're going to put it through a second dislocation of having that person removed and somebody else step in.

Shay Dvoretzky: Again, in practice, over a third of the time, that doesn't happen.

It's also something that the --

Sonia Sotomayor: It hasn't happened because no one's read it the way you have and invalidated that person's actions so far.

Shay Dvoretzky: Well, no.

What I mean is if you look at the government's chart, a third of the time, even if you applied our interpretation, it would not result in the nominee being taken out of acting service because the nominee isn't even put into acting service until later or at the same time as the nomination. Moreover, the President --

Sonia Sotomayor: The Senate is taking a long time to confirm, even when they're not objecting.

Shay Dvoretzky: So in -- in this particular case, after Mr. Solomon had served for some two-and-a-half years, when the President put up a permanent nominee, the Senate confirmed him in a matter of months.

And so the Senate doesn't always take a long time. Moreover, the Senate has confirmed approximately 85 percent of PAS officials during the current President's administration.

And so the Senate is confirming these officials.

What the FVRA requires is that the official not do the job without Senate confirmation because that would recreate the very problems that the FVRA was intended to combat in the first place. There's a limited exception for long-serving or Senate-confirmed first assistants, but that makes policy sense because of the continuity and the regularity that they bring to the job. I'd like to address the -- the question that was raised earlier about the consequences of ruling in our favor retroactively in terms of past decisions. No court has considered the "no force and effect" language.

But what I can tell you is that the government has been shoring up a defense that would be tied to the language in 3348 about the functions and duties of a particular office.

The only actions that have no force and effect are those that are taken in the performance of a function and duty of a vacant office. In response to a Senate inquiry about a deputy EPA administrator who had been serving for two years, the EPA took the position that that individual had not taken any actions whatsoever that were actually tied to the functions or duties of the vacant office. On the GAO website, there are approximately two dozen reports of time violations over the years of the FVRA.

And the GAO reports that agencies had reported to it that none of those two dozen individuals who served in violation of the FVRA took any actions that were tied to the functions and duties of the office.

And so the government is already shoring up arguments for why the "no force and effect" language would not undo actions taken by these improperly pointed officials. With respect to the GAO, the -- the Acting Solicitor General referred to the GAO as a watchdog --

Elena Kagan: The way you described that, you sound a bit skeptical of those defenses. (Laughter.)

Shay Dvoretzky: Well, skeptical only in the sense that they're not at issue in this case, and they haven't been litigated.

But if it were, if ruling in our favor were going to lead the sky to fall, you would expect the government to -- to tell you that.

And not only has the government not told you that, but the -- the surrounding context shows that the government thinks it has pretty good arguments for why.

Sonia Sotomayor: So you say that you can bring those cases, too?

Shay Dvoretzky: I'm sorry?

Sonia Sotomayor: Telling us -- so that -- you can bring those cases, too, or for other people to bring them? They're in a real catch-22 situation.

Shay Dvoretzky: The fact is, though, it's their burden to show the consequences of their actions. And the government's track record on this shows just the opposite; shows that these officials supposedly are not doing anything that would actually be invalidated.

Ruth Bader Ginsburg: So is Mr. Solomon's case atypical, the general counsel to the NLRB?

Shay Dvoretzky: Well, it's atypical in the sense that it is, under 3348(e), the "no force and effect" language doesn't apply to the general counsel of the NLRB.

It's -- the -- his actions are only voidable rather than void, and that's why the D.C. Circuit looked to the harmless error doctrine and the de facto officer doctrine as additional defenses. But even in a case where the "no force and effect" language did apply, again on the government's theory, challengers would have to show that the actions were -- that the actions that were taken were ones that could only have been taken by an individual in the vacant office.

And the government doesn't believe that that happens very much. With respect to the cases that the government cites for the first time in its reply brief, none of those are on point.

The Preseault case, the -- the operative language there was "under this act." That's what made clear that the particular provision there applied only to the statute at issue and not separately to the Tucker Act. The Mount Vernon case out of the Ninth Circuit, interpreting the "notwithstanding" clause -- the -- the language in the "notwithstanding" clause there to apply to all of (a) would have created superfluity which is not the case here.

To the contrary, here the government's interpretation makes (b)(2) superfluous. Congress specifically added (b)(2) when it expanded (b)(1) to apply to more than just first assistants, and if (b) -- if (b)(1) did not apply to all of (a) in the first place, there would be no need under (b)(2) to create an exception for Senate-confirmed first assistants.

Those Senate-confirmed individuals could serve under (a)(2), anyway.

So the only reason that Congress would have had to add that (b)(2) was because (b)(1), pursuant to these -- the changes to the statutory language otherwise applied to all of (a). The government argues in its reply brief that (b)(2) serves the -- serves a purpose because it saves the President from having to designate someone under (b)(2)

That's not a plausible account that Congress would have gone to all the trouble of adding (b)(2) solely to achieve that goal. And -- and, again, I would return to the core language here, which is "person" and "section." Those are broad inclusive terms.

If Congress had meant to accomplish what the government argues that this statute is accomplishing --

Ruth Bader Ginsburg: Wasn't that the argument, is that language, "person" and "this section," were in the prior bill, where it -- it applied only to first -- What do you call it?

Shay Dvoretzky: Only to first assistants.

Ruth Bader Ginsburg: -- first assistants?

Shay Dvoretzky: Because -- because the -- that's true, but the language in the prior bill had an old version of (b)(1) -- this is, again, at 19A of the cert petition -- that made clear that the only persons we were talking about were persons who are serving as first assistants.

There was immediate qualifying language that made clear and narrowed what "person" meant. Congress specifically deleted that language and it added a new (b)(2) that would be unnecessary if (b)(1) applied only -- if (a)(1) applied -- I'm sorry -- if (b)(1) applied only to (a)(1). If Congress had simply meant to achieve in the draft what the government ascribes to it, the edits could have been much simpler.

It could have simply changed 180 days to 90 days in order to shorten the -- the required period of acting service, and it could have edited the existing (b)(1) to say, such person serves in the position of first assistant to the office of such officer.

It made much broader changes.

John G. Roberts, Jr.: Thank you, counsel. Four minutes, Mr. Gershengorn.

Ian H. Gershengorn: Thank you, Mr. Chief Justice.

I'd like to make a number of points. First, Justice Kagan, your account of what would have happened in Congress had there been any reason to believe there was a problem with the Executive was doing is exactly right, and we know that because after the D.C. Circuit ruled, in fact, what you said would happen is what happened. Senators started raising objections to the President's nominees, arguing that they were serving illegally.

That's what happened in the years prior to the Act, and that's what happened as soon as the D.C. Circuit ruled.

That in-between period, I submit, is very significant. Justice Sotomayor, you raised Section (c)(1)

I think you're exactly right.

What their reading of the statute does is read the notwithstanding (a)(1) to mean notwithstanding (a)(1) -- to mean that it applies to (a)(1), (a)(2), and (a)(3), but not (c)(1). I think that's a very odd thing to express with the term "notwithstanding (a)(1)." Justice Breyer, you were asking about why it would make sense to treat the (a)(2) and (a)(3) differently, and I think you're exactly right.

It does not. What Respondent said was there needs to be accountability to Congress.

Congress put in that accountability.

It said that these individuals under (a)(2) and (a)(3) need to be personally designated by the President.

It cannot be delegated.

That is the kind of responsibility that when Congress puts that in the President, this -- it's not surprising then that those folks should be able to serve while they are nominated because they have gotten not only a Senate confirmation or long-standing agency service, but the personal approval of the President. Counsel tried to distinguish the cases that we raised.

I think they are worth raising because it does change, I think, the way this -- this Court has read the "notwithstanding" clause the way we say it. Preseault is a perfect example.

It said, notwithstanding this Act, but Congress then didn't read the remainder of clause to provide -- to apply to the whole code.

It limited to the Act, which was what was specified in the "notwithstanding" clause.

We think that that's what this Court should do here. And then finally I'd like to address this, the treatment of PAS officers, which I think is really important.

What Respondent said was, oh, Congress swept in (a)(2) as well.

With that blithe assertion, he attributes to Congress the intent to overturn 130 years of practice that had raised no complaint.

There is no evidence anywhere in the congressional record that Congress was concerned about Senate-confirmed officials also -- who were also nominated, and it was not reflected in the initial draft.

The idea that Congress blithely did that and swept in (a)(2), I think is just not supported by the record. And I'm sorry.

One more point.

One final point.

Justice Ginsburg, I think you're exactly right on the person/section point, which Justice Kennedy also had raised.

That language was in the prior bill.

There is no doubt that the provision it was in applied -- applied in addition to only -- applied only to first assistants.

And our point is that "person" and "section," of course it's broad.

But all that does is set up the conflict.

Congress understood that. So how did it resolve the conflict? Not in the most natural way under -- that Respondent would have this Court understand, by saying, notwithstanding Subsection (a), which would have taken out all of the problem.

Instead it said, notwithstanding Subsection (a)(1)

And the idea that Congress did that because there was no conflict between (a)(2) and (a)(3) and -- and (b)(1) just doesn't hold water. Finally, on that point -- I know that's my third finally, and I apologize, Your Honor.

But the -- it does seem that the notwithstanding (a)(1) doesn't do any work in their reading.

If Congress had just said (a)(1), and then had had (b)(1) without the "notwithstanding" clause, this Court would have understood (b)(1) to be a limitation on (a)(1)'s authority without a doubt.

And so what "notwithstanding (a)(1)" does is specify the order of operations, to specify the provision that is overridden.

And this Court should give that -- that congressional decision respect. Thank you.

John G. Roberts, Jr.: Thank you, counsel. The case is submitted.