National Labor Relations Board v. SW General, Inc.

PETITIONER: National Labor Relations Board
RESPONDENT: SW General, Inc.
LOCATION: National Labor Relations Board Headquarters

DOCKET NO.: 15-1251
LOWER COURT: United States Court of Appeals for the District of Columbia Circuit

GRANTED: Jun 20, 2016
ARGUED: Nov 07, 2016

Ian H. Gershengorn - for petitioner
Shay Dvoretzky - for respondent

Facts of the case

In 1998, Congress enacted the Federal Vacancies Reform Act (FVRA), which provided that, if a position for which the President nominates and the Senate confirms (PAS position) becomes vacant, the first assistant automatically takes over as an “acting officer” for a period of 210 days. The President may also select a senior employee from the same agency or someone in a PAS position from another agency to serve as the acting officer. Pursuant to the FVRA, when the Ronald Meisberg resigned as the General Counsel of the National Labor Relations Board (NLRB), a PAS position, the President directed Lafe Solomon, who held a senior position in the NLRB, to serve as the Acting General Counsel. Six months into his tenure, the President nominated him for the General Counsel position, but the Senate did not confirm him. On October 29, 2013, the Senate confirmed a different nominee, so by the time he stepped down, Solomon had served as Acting General Counsel from June 21, 2010, until November 4, 2013.

SW General, Inc. provides ambulance services to hospitals in Arizona. Its emergency medical technicians (EMTs), nurses, and firefighters, are negotiated by a union that had negotiated with SW General for “longevity pay,” which meant that employees who had been with the company for at least ten years were guaranteed annual bonuses. In December 2012, between the expiration of one collective bargaining agreement and the negotiation of a new one, SW General stopped paying the longevity pay. The union filed an unfair labor practices claim with the NLRB, which issued a formal complaint. An administrative law judge determined that SW General had committed unfair labor practices, and SW General filed a list of exceptions, among which was a claim that Acting General Counsel was serving in violation of the FVRA. A provision of the FVRA states that the acting officer may not become the nominee for the position, and the nominee to fill the position may not serve in an acting capacity unless that nominee was the first assistant to the vacant position for at least 90 days in the previous year. Solomon was briefly a nominee for the position, and he had not served as the first assistant to the vacant position. SW General petitioned the U.S. Court of Appeals for the District of Columbia Circuit for review, and the appellate court did not address the merits of the case because it determined that Solomon’s tenure as Acting General Counsel violated the FVRA.


Do the limitations on nominees to vacant positions serving in an acting capacity under the Federal Vacancies Reform Act apply equally to first assistants who take on the position and to those who are selected by the President from within the same agency or from another agency?

Media for National Labor Relations Board v. SW General, Inc.

Audio Transcription for Oral Argument - November 07, 2016 in National Labor Relations Board v. SW General, Inc.

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:


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:


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.