Amicus Curiae Brief — Nat'l Labor Relations Bd. v. SW Gen., Inc., 136 S. Ct. 2489 (2016) (No. 15-1251)

SUpFEMme US.

FILED

SFP 26 2016

No. 15-1251 | OBFICE OF THE CLERK |

In the Supreme Court of the Anited States

NATIONAL LABOR RELATIONS BOARD, PETITIONER

-

SW GENERAL, INC., DBA SOUTHWEST AMBULANCE

ON WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS FOR

THE DISTRICT OF COLUMBIA CIRCUIT

BRIEF FOR THE CHAMBER OF COMMERCE OF

THE UNITED STATES OF AMERICA AS AMICUS

CURIAE IN SUPPORT OF RESPONDENT

KATHRYN COMERFORD TODD JOHN P. ELWOOD

STEVEN P. LEHOTSKY Counsel of Record

JANET Y. GALERIA JEREMY C. MARWELL

U.S. CHAMBER VINSON & ELKINS LLP

LITIGATION CENTER 2200 Pennsylvania Ave.,

1615 H Street, N.W. NW, Suite 500 West

Washington, DC 20062 Vashington, DC 20037

(202) 463-5337 (202) 639-6500

jelwood@velaw.com

GREGORY F. MILLER

VINSON & ELKINS LLP

1001 Fannin St.

Suite 2500

Houston, TX 77002

Counsel for Amicus Curiae the Chamber of

Commerce of the United States of America

TABLE OF CONTENTS

Page

EL CET EE II

Repent GIF III GIEIID oncccccccccccccccceseccccccccccccscsceees 1

Introduction And Summary Of Argument ................ 2

ee aiieindiiichinditiiiiniginsnsiinainzitisnidiitanmensseeesenscess 4

I. The FVRA Ensures The President Does

Not Bypass The Senate’s Advice And

Consent Role In Nominations.......................... 4

II. By Its Plain Terms, § 3345(b)(1) Limits An

Individual’s Ability To Serve Temporarily

As An Acting Official Under § 3345(a)(2)

RES SS RRR ef OSES TS 10

A. The Government's Interpretation

Turns The Term “Notwithstanding”

EEA 10

B. The Plain Meaning Of “A Person” In

Subsection (b)(1) Makes Clear That It

Applies To Individuals Other Than

First Assistants Serving Under

EL 19

C. The Plain Meaning Of “This Section”

Establishes That Subsection (b)(1)

Applies To Subsections (a)(2) And

SEERA 21

SEERA RS ALES SI Rc Re ane 23

(I)

II

TABLE OF AUTHORITIES

Cases: Page(s)

Am. Bus Ass'n v. Slater,

BID nccncennsccssscnsnsestesoencsones 19

Engine Mfrs. Ass'n v. S. Coast Air Quality Mgmt.

Dist., 541 U.S. 246 (2004).........cccccccccceccccerecees 15-16

Hooks v. Kitsap Tenant Support Servs., Inc.,

816 F.3d 550 (9th Cir. 2016) ...................... 3, 14, 22

Hooks v. Kitsap Tenant Support Servs., Inc.,

No. C13-5470-BHS, 2013 WL 4094344 (W.D.

Wash. Aug. 13, 2013).................... 5 ttt 4

Hooks v. Remington Lodging & Hosp., LLC,

8 F Supp. 3d 1178 (D. Alaska 2014)..................... 3

In re Cardelucci,

285 F.3d 1231 (9th Cir. 2002) .....................c.cc0ee 19

Jama v. Immigration & Customs Enft,

re ceeammncnsnccts 13

Kingdomware Techs., Inc. v. United States,

A 13

Koons Buick Pontiac GMC, Inc. v. Nigh,

Ce 21

Lawson v. FMR LLC,

Te 11

Mohamad v. Palestinian Auth.,

EE 19

Moskal v. United States,

I SII eiicctccncenenccccecerssresveenceventemannssn 11

Ill

Cases—continued: Page(s)

Pfizer v. Gov't of India,

EL a ne 19

Powerex Corp. v. Reliant Energy Servs., Inc.,

a 14, 20, 22

Rapanos v. United States,

TE TE EE 20

Rumsfeld v. Padilla,

i eimiaeel 20

Shomberg v. United States,

as ciremcennmentionnnede 12-13

Sosa v. Alvarez-Machain,

a creeeneeaiennentnd 17, 20

Touby v. United States,

i cesiuisiaietelionll 5

U.S. Telecom Ass'n v. F.C.C.,

368 P.34 664 CD.C. Cir. S004) .........00000000000.00222.020 5

Statutes and Rules:

i ntrnintceriiieneneinbenniniiell passim

scene 1, 4, 14, 17

I assented passim

nal cee sicintensinctiieiommallil passim

ET EE LEER NE se passim

TT ETAT REESE 1,2

a cninctaipsticcrndandennennsiniianiatl passim

I ii ccciccccuncicevencnesenines 13, 14, 17, 20

cs cease 17, 22

IV

Statutes and Rules—continued: Page(s)

a ciincnctenacnmmnsinianouenenediontl 18, 22

cs cicirstinccecaninpsiobensesnicuanesionniciaentil 22

I icciniinscscensondncomnsnetascionionnniedenasiin 22

as caasstnsanenmesnliinnieinnninonainttl 22

oi acnicceennsneenennncenesepnnmnnnniiill 22

snl areetanepsiactinnninnnnienietonensanll 22

TTT ENN 22

i sininnepsencncdemiascbintennsoninibenvnsbnntantnn 22

niin snccnsisnsieninninnneniensimnonisctenninennnniis 22

sen ieaninctiecaanincicaimininnimnennaiiti 22

i, caiccsnsninssnennenabiuniccaceinaietnvnsiinth 22

ai cai eatarteramiaclanininhendinenieniinanions 18

Ce ae 12

i nicccensennascerevisnetnienniementonsmtemassotstil 12

io cerins scctenacheiiptsinaateinieaninieineieiaien 12

ans ctiesieatninsennontnansindeenietiovininees 18

ee iincnsemcunessonsecsnsescenssacemevnmnnenisil 18

TT 18

ssc csraicnasesesennseniiannincenesesiett 18

Gn sercensensosennntdunincsnsdomnetinnianete 18

I ons ccninisinenooeneintionnnccnenenenenn 18

cn snccndimnemmecnsstosinienianeianetiaesesen 18

srs cnsaciinietmensneamenancsininenieniateninie 6

aii ccccsietcniancmsninannimmnteinisians ee

42 U.S.C. § 1396kkk(g)(2)(A)......ce.sccccsssesssseecsneeeceeees 16

V

Statutes and Rules—continued: Page(s)

ES ESN NC 7

a cacictaencnincieiiantntnatieietiannts 7

Se Re 16

inns ae ecennlonennpediaaiia 6

A 7

ar cl eailtinatiinigicilliin 7

Other Authorities:

The American Heritage Dictionary of the English

Ee il

M. Douglass Bellis, Statutory Structure and

Legislative Drafting Conventions: A Primer

TT 21, 22

Black’s Law Dictionary (10th ed. 2014)................... 11

Se IE ccncacccccccccscosescssoscescenscocseses 6

57 Fed. Reg. 26894 (June 16, 1992) ........................... 7

62 Fed. Reg. 13522 (Mar. 20, 1997) ......................0000. 8

62 Fed. Reg. 13938 (Mar. 24, 1997) ....................000000 8

64 Fed. Reg. 40777 (July 28, 1999) ................:ccccceeeees 8

65 Fed. Reg. 7753 (Feb. 16, 2000) .......................00000.. 8

65 Fed. Reg. 24531 (Apr. 26, 2000) ....................0.0000. 9

65 Fed. Reg. 24533 (Apr. 26, 2000) ............................ i)

69 Fed. Reg. 11652 (Mar. 11, 2004) .................0........ 9

69 Fed. Reg. 22559 (Apr. 26, 2004) ...................::eee )

74 Fed. Reg. 10120 (Mar. 9, 2009) .....................:0 9

74 Fed. Reg. 36614 (July 24, 2009) ..............cccceeeeeee 8

VI

Other Authorities—continued: Page(s)

74 Fed. Reg. 38974 (Aug. 5, 2009).........c.c.cccceseeseseee “

78 Fed. Reg. 19434 (Apr. 1, 2013) ...............:c:cceeeeeeeees 7

79 Fed. Reg. 52355 (Sept. 3, 2014) ..................cccceeeeeee 9

80 Fed. Reg. 26189 (May 7, 2015)......................00 5, 8

Bryan Garner, Garner’s Modern American Usage

ESR Reset redken ac Nee 11

James L. Gattuso & Diane Katz, Red Tape

Rising: Obama Regs Top $100 Billion

Annually (May 2016), at https://goo.gl/ofrzqQ ..... 6

Antonin Scalia & Bryan Garner, Reading Law:

The Interpretation of Legal Texts (2012) ............ 11

Securement of Unattended Equipment, Docket

No. FRA-2014-0032, Notice No. 2 (July 27,

INTEREST OF AMICUS CURIAE'

The Chamber of Commerce of the United States of

America (the “Chamber”) is the world’s largest busi-

ness federation. It represents 300,000 direct mem-

bers and indirectly represents the interests of more

than three million companies and professional organ-

izations of every size, in every industry, from every

region of the country. An important function of the

Chamber is to represent the interests of its members

in matters before Congress, the Executive Branch,

and the courts. The Chamber thus regularly files

amicus curiae briefs in cases raising issues of vital

concern to the Nation’s business community, includ-

ing cases involving challenges to federal agency ac-

tion, such as action by the National Labor Relations

Board.

This case concerns the Federal Vacancies Reform

Act (““FVRA”), 5 U.S.C. § 3345, et seg., which limits

when a nominee for a vacant office may also serve

temporarily as the acting official for that same office.

The question presented is whether § 3345(b)’s limita-

tion applies to all temporary officials serving under 5

U.S.C. § 3345(a), or whether it applies only to the

narrower class of officials who assume acting respon-

sibilities under Subsection (a)(1) because they act as

first assistants to the vacant office. Although this

case specifically addresses when the Acting General

Counsel of the National Labor Relations Board (the

' No counsel for a party authored this brief in whole or part,

and no counsel or party made a monetary contribution to fund

the preparation or submission of this brief. No person other

than the amicus curiae, its members, and its counsel made any

monetary contribution to its preparation and submission. The

parties have consented to this filing.

(1)

2

“NLRB” or the “Board”) may lawfully assume such

responsibilities, the question is of far broader signifi-

cance to the Chamber, whose members are subject to

regulation and enforcement by the NLRB and many

other federal agencies governed by the FVRA.

In a well-reasoned and thorough decision, the D.C.

Circuit gave effect to the plain language of § 3345(b),

limiting the circumstances in which the NLRB’s Act-

ing General Counsel may lawfully serve pursuant to

§ 3345(a)(2) or (a)(3), while also being the President's

nominee for that office. As the largest representative

of employers in the United States, the Chamber has a

vital interest in ensuring that the NLRB at all times

is acting within its authority when it discharges its

duties, and that the Senate plays a meaningful role

in providing advice and consent on the President's

nominees for offices at the NLRB and myriad other

agencies.

INTRODUCTION

AND SUMMARY OF ARGUMENT

The FVRA establishes rules for temporarily filling

vacancies that require presidential appointment and

Senate confirmation (“PAS” positions). It gives the

President limited authority to appoint acting officers

to serve temporarily in those positions, while restrict-

ing that temporary service to preserve the Senate's

advice-and-consent role. Subsection (a)(1) sets the

default rule for succession, providing that the first

assistant “shall” become the acting officer. 5 U.S.C.

§ 3345(a)(1). The President may override that auto-

matic succession rule by either directing an individ-

ual who already holds a different PAS position to

serve as the acting officer, id. § 3345(a)(2), or direct-

3

ing a senior employee within the same agency to

serve as the acting officer, id. § 3345(a)(3). Congress

included § 3345(b)(1) to prevent the President from

using acting service as a way to evade the Senate’s

advice-and-consent role. It provides that, “[njotwith-

standing subsection (a)(1), a person may not serve as

an acting officer for an office under this section, if”

that person did not serve as first assistant to the va-

cant office for 90 days of the preceding year and has

been nominated to that office. 5 U.S.C. § 3345(b)(1).

Subsection (b)(1)’s limitation is important given

the vast power that acting officers wield. Such offi-

cials can occupy the highest reaches of government

agencies. Despite their “acting” status, such officials

can issue final rules with nationwide effect, approve

statewide regulatory regimes, and make individual

case determinations about the applicability of regula-

tions that have profound effects on businesses and

individuals.

The text of Subsection (b)(1) unambiguously ap-

plies to persons serving under Subsections (a)(2) and

(a)(3), as well as (a)(1). Congress made three specific

choices in the language of Subsection (b)(1) that make

that meaning plain—beginning it with a “notwith-

standing” clause, using the broad term “a person,”

and specifying that its limitation applied to “this sec-

tion.” Indeed, every federal judge to consider the is-

sue has concluded that the plain text of § 3345(b)(1)

unambiguously limits an individual’s ability to serve

temporarily as an acting officer pursuant to

§ 3345(a)(2) or (a)(3), and not just (a1). See Pet.

App. 12a-20a; Hooks v. Kitsap Tenant Support Servs.,

Inc., 816 F.3d 560, 558-64 (9th Cir. 2016); Hooks v.

Remington Lodging & Hosp., LLC, 8 F.Supp. 3d

4

1178, 1187-89 (D. Alaska 2014); Hooks v. Kitsap Ten-

ant Support Servs., Inc., No. C13-5470-BHS, 2013 WL

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

Court should reach the same conclusion.

ARGUMENT

I. The FVRA Ensures The President Does Not

Bypass The Senate’s Advice And Consent

Role In Nominations

One of the FVRA’s core purposes is preventing the

President from installing an officer of the United

States to a PAS position without the Senate’s consti-

tutional check of advice and consent. Resp. Br. 11-14.

The FVRA’s reforms are a critical safeguard for the

separation of powers and guard against executive ag-

grandizement in the myriad areas in which executive

officers are vested with authority to take actions with

the force of law. The range of officials subject to the

FVRA is as broad as the Executive Branch itself. Ab-

sent faithful application of the FVRA’s limitations on

acting service, the President could install his chosen

officials without Senate approval; those officials could

then take a wide range of actions carrying the force of

law, subjecting businesses and individuals nation-

wide to regulations, enforcement actions, and other

agency determinations with serious real-world conse-

quences. Acting officials who are permanent nomi-

nees are more likely than temporary caretakers to be

emboldened to take significant actions to advance the

President’s agenda.

It is difficult to overstate the broad universe of of-

fices subject to the FVRA, or the scope of practical

and legal consequences that would result from the

government’s proposed interpretation of that statute.

5

By its terms, the FVRA applies to any “officer of an

Executive agency,” defined to include those in “the

Executive Office of the President,” whose appoint-

ment “is required to be made by the President, by and

with the advice and consent of the Senate.” 5 U.S.C.

§ 3345(a). The FVRA thus applies to all of the offi-

cials who lead agencies responsible for regulating vir-

tually every sector of the U.S. economy, from the En-

vironmental Protection Agency (“EPA”) and Depart-

ment of Health and Human Services to the Depart-

ments of Homeland Security, Commerce, and State,

as well as the Office of Management and Budget. By

statute, those serving in covered offices exercise a

vast range of authority. In addition, most federal

agency heads and other principals have standing del-

egations of authority to subordinates via “internal

delegations and appointments of authority.” Approv-

al and Promulgation of Air Quality Implementation

Plans, 80 Fed. Reg. 26189, 26189-26190 (May 7,

2015); see U.S. Telecom Ass'n v. F.C.C., 359 F.3d 554,

565 (D.C. Cir. 2004) (finding such subdelegation “pre-

sumptively permissible”); see Touby v. United States,

500 U.S. 160, 169 (1991) (upholding Attorney Gen-

eral’s power to subdelegate).?

As a result, acting officials covered by the FVRA

and operating at many different levels of an agency’s

internal organization often wield significant authori-

ty, making the Senate's advice-and-consent role cru-

2 Many agencies do not make their subdelegations readily

available to the public. For instance, the EPA Delegations

Manual, which outlines EPA’s general methods of delegating

powers and functions within the agency, is not readily available

to the public, yet EPA frequently invokes it to defend subordi-

nate officials’ actions. E.g., 80 Fed. Reg. at 26190.

6

cial. Even a few examples illustrate the importance

of ensuring the President is not able to bypass the

Senate by readily resorting to the use of acting offi-

cials.

1. To begin with the example presented in this

case, the NLRB’s General Counsel has substantial

enforcement powers under the National Labor Rela-

tions Act. The General Counsel exercises “general

supervision” over NLRB attorneys and “the regional

offices,” as well as “final authority * * * in respect of

the investigation of charges and issuance of [unfair

labor practice] complaints.” 29 U.S.C. § 153(d). The

General Counsel brings enforcement proceedings

against those who do not comply with Board-issued

subpoenas. See 29 C.F.R. § 102.31(d). Simply re-

sponding to such an investigation—to say nothing of

defending against charges if a complaint is issued—

can impose substantial costs on employers, some-

times resulting in tens if not hundreds of thousands

of dollars in legal fees.*

Other acting officials can exercise similarly broad

powers. To take another example from among the

positions the government acknowledges were filled

based on its flawed and aggressive reading of the

FVRA, see Pet. Br. App. 74a, the Deputy Administra-

tor of the EPA can wield essentially the entire au-

thority of the Administrator, which includes some of

the most far-reaching, burdensome, and controversial

regulatory schemes in the U.S. Code. E.g., 42 U.S.C.

3 See, e.g., 145 Cong. Rec. 6764 (1999) (reporting that a single

employer “had to spend more than $600,000 in legal fees from

one salting campaign, with the average cost per charge of more

than $8,500").

7

§ 7601(a) (rulemaking authority under Clean Air

Act); id. § 6912(a)(1) (same, Resource Conservation

and Recovery Act); 33 U.S.C. § 1361(a) (Clean Water

Act); see generally James L. Gattuso & Diane Katz,

Red Tape Rising: Obama Regs Top $100 Billion An-

nually (May 2016), at https://goo.gV/ofrzqQ (EPA regu-

lations promulgated in 2015 alone increased regula-

tory costs by $11.1 billion, according to EPA’s own

calculations). By regulation, the Deputy Administra-

tor has blanket authority to “assist{] the Administra-

tor in the discharge of Agency duties and responsibil-

ities,” and can even “serve[] as Acting Administrator.”

40 C.F.R. § 1.23. Under that authority, Acting Depu-

ty Administrators have taken a lead role in notice-

and-comment rulemaking, including in notoriously

controversial areas such as the scope of federal juris-

diction under the Clean Water Act.‘ And by regula-

tion, the Deputy Administrator has authority over all

appeals by small business owners regarding whether

they have complied with EPA standards. See 40

C.F.R. § 21.5. That kind of substantive rulemaking

authority and important decisionmaking power un-

derscores the need for Senate advice and consent.

Statutes, regulations, and internal agency memoran-

da charge scores of other officials at the NLRB, EPA,

and other agencies with comparable powers.

2. One need look no further than the Federal Reg-

ister to see that acting officials routinely take actions

that carry the force of law and have real-world conse-

quences for businesses and individuals. For starters,

acting officials often issue or approve substantive

* See, e.g., Proposed Rule for the Clean Water Act Regulatory

Programs of the Army Corps of Engineers and the Environmen-

tal Protection Agency, 57 Fed. Reg. 26894 (June 16, 1992).

8

regulations. They routinely propose® and issue final

rules with nationwide effect,* and respond to com-

ments made in the rulemaking process.’ They also

issue authoritative guidelines for implementing fed-

eral programs,® and approve state regulatory regimes

that are subject to federal standards.®

5 Effluent Limitations Guidelines and Standards for the Con-

struction and Development Point Source Category, 78 Fed. Reg.

19434 (Apr. 1, 2013) (issued by Acting Administrator of EPA).

* See, e.g., Securement of Unattended Equipment, Docket No.

FRA-2014-0032, Notice No. 2 (July 27, 2016) (Acting Adminis-

trator of Federal Railroad Administration issues final rule on

unattended railroad equipment); Requirements and Procedures

for Consumer Assistance To Recycle and Save Program, 74 Fed.

Reg. 38974 (Aug. 5, 2009) (Acting Deputy Administrator of

NHTSA issues final rule governing federal automobile exchange

and disposal program); Rules of Practice for Motor Carrier Pro-

ceedings; Violations of Commercial Regulations, 65 Fed. Reg.

7753 (Feb. 16, 2000) (Acting Deputy Administrator of FMCSA

issues final rule governing various aspects of proceedings under

the ICC Termination Act of 1996); Motor Vehicle Content Labe)-

ing, 64 Fed. Reg. 40777 (July 28, 1999) (Acting Deputy Adminis-

trator of NHTSA adopts final rule concerning labeling required

for passenger vehicles); Consolidation, Elimination, and Clarifi-

cation of Various Regulations, 62 Fed. Reg. 13938 (Mar. 24,

1997) (Acting Deputy Administrator of DEA issues final rule

making numerous changes to federal regulations covering “the

pharmaceutical, chemical, and health care industries”).

’ Elimination of Route Designation Requirement for Motor

Carriers Transporting Passengers Over Regular Routes, 74 Fed.

Reg. 36614 (July 24, 2009).

* See, e.g., Guidelines for Implementing the Hardship Grants

Program for Rural Communities, 62 Fed. Reg. 13522 (Mar. 20,

1997) (Acting Assistant Administrator of EPA issues guidelines

governing “a $50 million grant program”).

® See, e.g., Approval and Promulgation of Air Quality Imple-

mentation Plans, 80 Fed. Reg. at 26189-26190 (Acting EPA Re-

9

Acting officials also make individual adjudicatory

determinations of profound importance for businesses

and individuals. For instance, they routinely decide

whether to grant regulatory waiver requests,'° or ap-

plications for regulatory exemptions.'! They also ap-

prove or deny applications for certifications that are

necessary for certain businesses.'2 These decisions

are highly significant to the individuals and entities

affected by them.

gional Administrator approves New Mexico's State Implementa-

tion Plan, pursuant to Federal Clean Air Act).

1© See, e.g., Notice of Regulatory Waiver Requests Granted for

the Second Quarter of Calendar Year 2014, 79 Fed. Reg. 52355,

523356-52358 (Sept. 3, 2014) (reporting three decisions to waive

regulations, made by various “[a]cting” officials of the Office of

Community Planning and Development)

'! See, e.g., Parts and Accessories Necessary for Safe Opera-

tion; General Motors Corporation's Exemption Application; Min-

imum Fuel Tank Fill Rate and Certification Labeling, 65 Fed.

Reg. 24531 (Apr. 26, 2000) (Acting Deputy Administrator of

FMCSA grants GM's application for exemption from certain fue!

tank design and certification labeling requirements); Controlled

Substances and Alcohol Use and Testing; PacifiCorp Electric

Operations’ Exemption Application; Random Testing of Drivers,

65 Fed. Reg. 24533 (Apr. 26, 2000) (Acting Deputy Administra-

tor of FMCSA denies company’s application for exemption from

requirement of random substance and alcohol tests); Commer-

cial Driver’s License: Commonwealth of Virginia, Department of

Motor Vehicles; Application for Exemption, 74 Fed. Reg. 10120

(Mar. 9, 2009) (Acting Deputy Administrator of FMCSA grants

Virginia's application for an exemption allowing it to accept

black and white photographs on commercial driver's licenses).

12 See, e.g., Denial of Application, 69 Fed. Reg. 22569 (Apr. 26,

2004) (Acting Deputy Administrator of DEA denies certification

for small business owner planning to distribute various cough

medicines to gas stations); Denial of Application, 69 Fed. Reg.

11652 (Mar. 11, 2004) (same, denial of certification for applicant

planning to distribute to gas stations and convenience stores).

10

There is thus every reason to believe that Con-

gress intended to protect the Senate’s primary role in

providing advice and consent as to the officers who

wield such wide-ranging powers.

Il. By Its Plain Terms, § 3345(b)(1) Limits An

Individual’s Ability To Serve Temporarily As

An Acting Official Under § 3345(a)(2) Or

(a)(3)

The plain language of the statute confirms this

understanding. Section 3345(b)(1) states that

“(njotwithstanding subsection (a)(1), a person may

not serve as an acting officer for an office under this

section, if” that person did not serve as first assistant

to the vacant office for 90 days of the preceding year

and has been nominated to that office. 5 U.S.C.

§ 3345(b)(1). Three features of that language—the

use of “[njotwithstanding,” “a person,” and “this sec-

tion"—make clear that Subsection (b)(1) applies to

individuals acting as temporary officers under Sub-

sections (a)(2) and (a)(3), as well as those serving un-

der Subsection (a)(1).

A. The Government’s Interpretation Turns

The Term “Notwithstanding” On Its Head

1. The Plain Meaning Of “Notwithstanding” Re-

quires An Expansive Application Of Subsection (b)\(1)

The government’s textual argument focuses pri-

marily—almost exclusively—on the opening depend-

ent clause of Subsection (b)(1). See Pet. Br. 26-37.

But the government’s argument skips over what the

word “notwithstanding” actually means. The plain

meaning of “notwithstanding” prevents Subsection

(a)(1) from limiting Subsection (b)(1) , as the govern-

ment contends.

11

When interpreting a statute, this Court “look[s]

first to its language, giving the words used their or-

dinary meaning.” Lawson v. FMR LLC, 134 S. Ct.

1158, 1165 (2014) (quoting Moskal v. United States,

498 U.S. 103, 108 (1990)). The ordinary meaning of

“notwithstanding” is “in spite of” or “despite.” Black's

Law Dictionary 1230 (10th ed. 2014); accord Bryan

Garner, Garner’s Modern American Usage 575 (3d ed.

2009) (“despite,” “in spite of,” or “although”); The

American Heritage Dictionary of the English Lan-

guage 1238 (3d ed. 1992) (“In spite of:” “All the same;

nevertheless:” “In spite of the fact that; although”).

By that ordinary meaning, the opening clause pro-

vides that the restrictions in Subsection (b)(1) should

apply in spite of what Subsection (a)(1) says. In other

words, Subsection (a)(1) does not limit the applica-

tion of Subsection (b)(1).

In the statutory context, “/njotwithstanding per-

forms a function opposite that of subject to. A de-

pendent phrase that begins with notwithstanding in-

dicates that the main clause that it introduces or fol-

lows derogates from the provision to which it refers.”

Antonin Scalia & Bryan Garner, Reading Law: The

Interpretation of Legal Texts 126 (2012). Thus, when

an opening clause uses the term “notwithstanding” in

reference to a prior provision, it is ensuring that the

main clause it introduces is not limited by that prior

provision. IJbid. (noting the “superordinating” func-

tion of the term “notwithstanding’).

The government's interpretation of Subsection

(b)(1) turns the term “[nlotwithstanding” on its head

by reading it to restrict the meaning of Subsection

(b)(1). Indeed, the government reads

“(njotwithstanding subsection (a)(1)” to mean that

12

Subsection (b)(1) applies “only to persons who auto-

matically assume acting status based on the general

rule in Subsection (a)(1).” Pet. Br. 14 (emphasis add-

ed). In effect, it gives “notwithstanding” the opposite

of its ordinary meaning. Tellingly, the government

cannot point to a single definition of “notwithstand-

ing,” or any instance of everyday usage, that supports

its backwards interpretation of “notwithstanding” as

a term of limitation. See Pet. Br. 20-55. Nor has it

identified any decisions from this Court—or any oth-

er—adopting that idiosyncratic approach.

In fact, this Court’s precedent is to the contrary.

Shomberg v. United States, 348 U.S. 540 (1955), re-

jected a similarly misguided construction of an open-

ing “notwithstanding” clause. Shomberg involved the

Immigration and Nationality Act of 1952 and ad-

dressed the interaction of a savings clause that pre-

served the validity of existing immigration docu-

ments (Section 405(a)), a non-retroactivity provision

specifying that a petition for naturalization would be

determined under the law in effect at the time of its

filing (Section 405(b)), and a provision saying that

“[njotwithstanding the provisions of section 405(b),”

“no petition for naturalization shall be finally heard”

if a deportation proceeding was then pending (Section

318). The petitioner argued that Section 318 had no

application to the savings clause in Section 405(a) be-

cause Section 318 mentioned only Section 405(b). Id.

at 543. While acknowledging that the “notwithstand-

ing clause” “at first glance might indicate that it was

intended not to apply to § 4065(a),” the Court deemed

that position “untenable,” concluding that Congress’s

“intent is plain enough” that Section 318 “super-

13

sede[d] rights” under both Sections 405(a) and (b).

Id. at 545.

This Court should reach the same conclusion here

and reject the government’s attempt to subvert the

plain meaning of Subsection (b)({1)’s “notwithstand-

ing” clause.

2. The Statutory Context Confirms The Plain

Meaning Of “Notwithstanding” In Subsection (b)(1)

An examination of the statutory context under-

scores this reading. First, giving “notwithstanding”

its plain meaning in Subsection (b)(1) would be con-

sistent with the principle that, when used “in contra-

position,” the term “may” is permissive and the term

“shall” is mandatory. Jama v. Immigration & Cus-

toms Enft, 543 U.S. 335, 346 (2005); see Kingdom-

ware Techs., Inc. v. United States, 136 S. Ct. 1969,

1977 (2016) (“When a statute distinguishes betwsccn

‘may’ and ‘shall,’ it is generally clear that ‘shall’ im-

poses a mandatory duty.”). Subsection (a)(1) uses

“shall” to establish a default rule whereby the first

assistant temporarily assumes the responsibilities of

the officer. 5 U.S.C. § 3345(a)(1). Then Subsections

(a)(2), (a)(3), and (c)(1) establish circumstances where

the President “may direct” someone other than the

first assistant to be the acting officer: a PAS official,

id. § 3345(a)(2) (emphasis added), or an employee

who has attained at least a GS-15 pay grade and 90

daya’ service in the agency, id. § 3346(a)(3). Subsec-

tion (b)(1) then specifies when individuals “may not

serve” under § 3345. Id. § 3345(b)(1). As the Ninth

Circuit recognized, it is logical that each subsection

using the permissive verb “may” would open with the

14

phrase “[njotwithstanding subsection (a)(1)”™ to

make clear that the mandatory “shall” in Subsection

(a)(1) does not override it. See Hooks, 816 F.3d at

560. Thus, interpreting the “notwithstanding” claus-

es to mean “in spite of’ conforms to the use of “may”

and “shall” in the statute.

This understanding of the contrast between per-

missive and mandatory language makes clear why

the government is wrong to suggest that the D.C.

Circuit’s reading “renders that specific language su-

perfluous.” Pet. Br. 37. As the Ninth and D.C. Cir-

cuits agreed, the plain meaning of “notwithstanding”

gives effect to the “notwithstanding” clause in Sub-

section (b)(1)—along with the similar clauses in Sub-

sections (a)(2), (a)(3), and (c)(1)}—because they all

clarify the “order of operations” between those sub-

sections and subsection (a)(1). See Pet. App. 14a;

Hooks, 816 F.3d at 560 (“The ‘notwithstanding’ lan-

guage, as used in (a)(2), (a)(3), and (b)(1), simply pro-

vides that, although that default rule exists, these

other provisions still apply.”).

Second, giving “notwithstanding” its plain mean-

ing in Subsection (b)(1) follows the “principle * * *

that identical words and phrases within the same

statute should normally be given the same meaning.”

Powerex Corp. v. Reliant Energy Servs., Inc., 551 U.S.

224, 232 (2007). As explained above, the D.C. Cir-

cuit’s reading ensures that the mandatory “shall” in

Subsection (a)(1) does not override the permissive

“may” in the other subsections (or the equally manda-

13 Of course, Subsections (a)(2) and (a)(3) refer to “paragraph

(1)” instead of “subsection (a)(1),” because they are also under

the heading of Subsection (a). See 5 U.S.C. § 3345(a)(2), (3).

But the meaning is the same.

15

tory “may not” in subsection (b)(1)). See Pet. App.

14a-15a. The government’s proposed interpretation,

by contrast, gives the “notwithstanding” clause in

(b)(1) a very different meaning than the term has

throughout Subsection (a). The government claims

that it reads all the “notwithstanding” clauses “con-

sistently with each other, as carving out an exception

to the default rule that the first assistant shall per-

form the duties of the vacant office.” Pet. Br. 22. But

under the government’s reading, Subsection (b)(1) is

the only provision that applies only to Subsection

(a)(1): It never claims that the “[njotwithstanding”

clauses of Subsections (a)(2) and (a)(3) limit their ap-

plication in the same way.

For good reason. Under that approach, the Pres-

ident’s discretionary power under Subsections (a)(2)

and (a)(3) could be used only to replace the first assis-

tant serving automatically under Subsection (a)(1).

And that would mean that the President could not

(for example) exercise his discretion under Subsection

(a)(2) to replace a temporary officeholder whom the

President previously directed to act under Subsection

(a)(3}—despite Subsection (a)(2)’s clear authorization

that he “may direct” a PAS official to act in the va-

cant office. Such a position cannot be squared with

the plain language of those subsections.

The government’s reliance on the negative-

implication canon, and the fact that Subsection (b)(1)

references “Subsection (a)(1)” alone, is misplaced.

See Pet. Br. 28-30. That argument overlooks the fact

that, given their substantive differences, Subsection

(b)(1) doee not need a broader “notwithstanding”

clause to limit Subsections (a)(2) and (a)(3). Cf. En-

gine Mfrs. Ass'n v. S. Coast Air Quality Mgmt. Dist.,

16

541 U.S. 246, 257-58 (2004) (noting that a “notwith-

standing” clause “might have been nice, but hardly

seems necessary” given how the substance of the two

statutory provisions determined their interaction).

The provisions simply work differently. Because

Subsection (b)(1) plainly specifies the circumstances

under which a person “may not serve” as an acting

officer, there was no need for it to reference the per-

missive provisions of Subsections (a)(2) and (a)(3).

Congress often uses the phrase “may not serve” in

this way to effectively limit—without using any “not-

withstanding” clause—the President's ability to place

individuals in office. See, eg. 42 U.S.C.

§ 1395kkk(g)(2)(A) (providing that, though the Presi-

dent has the power to appoint members of the Inde-

pendent Payment Advisory Board, “a member may

not serve more than 2 full consecutive terms” (empha-

sis added)); 54 U.S.C. § 304101(c) (providing that,

though President has the power to appoint members

to the Advisory Council on Historic Preservation,

“[a]jn appointed member may not serve more than 2

terms” (emphasis added)).

A broader “notwithstanding” clause is also un-

necessary because Subsection (b)(1) explicitly applies

to “this section.” As the D.C. Circuit recognized, Sub-

section (b)(1)’s use of “the phrase ‘this section’ plainly

refers to section 3345 in its entirety,” thereby making

a person’s ability to serve under § 3345(a)(2) and

(a)(3) subject to the conditions in Subsection (b)(1).

Pet. App. 12a. Broadening the “notwithstanding”

clause would simply have created redundancy in the

statute.

Moreover, the D.C. Circuit’s reading aligns with

the “usual rule” that “when the legislature uses cer-

17

tain language 1 in one part of the statute and different

language in another, the court assumes different

meanings were intended.” Sosa v. Alvarez-Machain,

542 U.S. 692, 712 n.9 (2004) (internal quotation

marks omitted). Here, the use of introductory “not-

withstanding” clauses in Subsections (a)(2), (a)(3),

(b)(1), and (c)(1) contrasts sharply with the use of the

introductory “For purposes of” clause in Subsection

(c)(2). See 5 U.S.C. § 3345(c)(2) (“For purposes of this

section * * * the expiration of a term of office is an in-

ability to perform* * *”). Following the plain mean-

ing of “notwithstanding” ensures that those different

clauses receive different meanings.

3. The Government's Alternative Wording Argu-

ments Fail

The government also makes a number of counter-

factual arguments based on language Congress did

not enact in Subsection (b)(1)'s “notwithstanding”

clause. It asserts that, if Congress had intended for

Subsection (b)(1) to apply to all of Subsection (a), it

would have said “notwithstanding any other provi-

sion of law,” Pet. Br. 31, or “[njotwithstanding sub-

section (a), or ‘[njotwithstanding subsections (a)(1),

(a)(2), and (a)(3),” Pet. Br. 33. Those arguments do

not withstand scrutiny.

While the government asserts that Subsections

(a)(2) and (a)(3) “are just as categorical as Subsection

(a)(1),” Pet. Br. 32-33, those provisions do not use the

mandatory term “shall.” There is thus no need for a

“notwithstanding” clause to prevent them from affect-

ing Subsection (b)(1). And given the narrow sweep of

Subsection (b)(1), it is perfectly sensible that Con-

gress did not use the phrase “[njotwithstanding any

other provision of law.” Pet. Br. 31. Subsection (b)(1)

18

specifies that it applies to “a person * * * serv[ing] as

an acting officer ** * under this section.” 5 U.S.C.

§ 3345(b)(1) (emphasis added). Because Subsection

(b)(1) is limited in scope to a single section, it would

have been nonsensical to include a wide-ranging

“notwithstanding” clause that swept in every section

of all fifty-two titles of the United States Code. In-

deed, the government acknowledges that, when it

comes to “notwithstanding” clauses, more “precise

provisions” are preferable. Pet. Br. 31. The govern-

ment’s argument also fails to account for 5 U.S.C.

§ 3347(a), which establishes that certain statutory

provisions provide alternatives to the FVRA. Using

an omnibus “notwithstanding” clause would unneces-

sarily conflict with that provision.

The government’s arguments are also undercut

by lengthy congressional practice. There are numer-

ous Code provisions in which a subsection or para-

graph with a mandatory “shall” is followed by a pro-

vision containing “notwithstanding” language to en-

sure that the mandatory provision does not override

permissive language in a neighboring provision. See,

e.g., 7 U.S.C. § 6d (paragraph (2) provides that funds

of a swaps customer and the futures commission mer-

chant “shall not” be commingled, while subpara-

graphs (3)(a) and (b) provide that funds “may” be

commingled in certain conditions, “[n]otwithstanding

paragraph (2)"); 15 U.S.C. § 80a-56 (subsection (d)

provides that “it shall be unlawful” for noncontrolling

shareholders or affiliates to conduct certain transac-

tions, while subsections (f), (g), and (j) permit certain

transactions “[njotwithstanding subsection (d)”).'*

14 See also, ¢.g., 10 U.S.C. § 125(a), (b), (c) (similar); 15 U.S.C.

§ 80a-17(a), (b), (c) (similar).

19

The government tellingly cannot offer a single in-

stance of another statute containing an introductory

“notwithstanding” clause that has the same effect it

claims is present here—restricting the meaning of the

clause it introduces.

B. The Plain Meaning Of “A Person” In Sub-

section (b)(1) Makes Clear That It Applies

To Individuals Other Than First Assis-

tants Serving Under Subsection (a)(1)

By its plain terms, Subsection (b)(1) applies to

acting officers serving under (a)(2) and (a)(3) because

it provides that “a person may not serve as an acting

officer for an office under this section.” 5 U.S.C.

§ 3345(b)(1) (emphasis added). The broad scope of

the word “person” plainly covers more than “the first

assistant” referenced in Subsection (a)(1).

To begin, the phrase “a person” is expansive. As

this Court has noted frequently, the term “person”

has “a broa[d] meaning in the law.” Mohamad v. Pal-

estinian Auth., 132 S. Ct. 1702, 1708 (2012); accord

Pfizer v. Gov't of India, 434 U.S. 308, 312 (1978) (“the

phrase ‘any person’ has a “naturally broad and in-

clusive meaning”). And the “indefinite or generaliz-

ing force of ‘a’” confirms the breadth intended for the

term “person.” Am. Bus Ass'n v. Slater, 231 F.3d 1, 5

(D.C. Cir. 2000); In re Cardelucci, 286 F.3d 1231,

1234 (9th Cir. 2002) (same). Thus, Congress inten-

tionally made the object of Subsection (b)(1) broad.

In contrast, the term “the first assistant” is very

narrow. A “first assistant” is not just any “person,”

but someone who holds a particular position that does

not always (or even usually) exist for many statutory

offices. Moreover, the use of “the definite article” un-

20

derscores that there is “only one” first assistant for

purposes of Subsection (a)(1). See Rumsfeld v. Pa-

dilla, 542 U.S. 426, 434 (2004); Rapanos v. United

States, 547 U.S. 715, 732 (2006) (plurality opinion)

(“[t]he use of the definite article” indicates a “nar-

row[er]” reference).

For at least two reasons, the broader statutory

context confirms that Congress used the term “per-

son” in Subsection (b)(1) to reach beyond Subsection

(a)(1) to individuals acting under (a)(2) and (a)(3).

First, giving “person” its naturally expansive

meaning is faithful to the bedrock rule of construction

that the same word should generally have the same

meaning within a particular statute, and different

terms should have different meanings. See Powerex

Corp., 551 U.S. at 232; see aleo Sosa, 542 U.S. at 712

n.9 (presuming “different language” in different parts

of a statute indicates “different meanings’). Doing so

ensures that the term “person” is given the same

meaning in Subsections (a)(2) and (b)(1). See 5

U.S.C. § 3345(a)(2), (b)(1). And it gives meaning to

the very different terms used in Subsections (a)(1)

and (b)(1)}—“the first assistant” and “a person.”

Second, Congress consciously used different levels

of specificity in defining the objects of Section 3345's

various subsections, confirming that “a person” in

(b)(1) has broad effect. Subsection (a)(1) uses the

phrase “the first assistant” because it identifies the

particular individual who should be elevated auto-

matically to acting status when a vacancy arises. See

5 U.S.C. § 3345(a)(1). Subsection (a)(2) uses the

broader term “person” to ensure that all eligible PAS

officials are covered. Id. § 3345(a)(2). Subsection

(a)(3) uses “officer or employee” because it is limited

21

to those individuals who have held positions within

the agency. Id. § 3345(a)(3). And Subsection (c)(1)

uses “officer” because it is limited to those individuals

who have already occupied the office in question and

are being reappointed. Id. § 3345(c)(1). Given the

precision with which Congress defined the objects of

all the surrounding subsections, it is only logical to

conclude that Congress intended the breadth of scope

that follows from using the broad term “person” in

Subsection (b)(1).

C. The Plain Meaning Of “This Section” Es-

tablishes That Subsection (b)(1) Applies

To Subsections (a)(2) And (a)(3)

When Subsection (b)(1) states that “a person may

not serve as an acting officer for an office under this

section,” 5 U.S.C. § 3345(b)(1) (emphasis added), the

term “this section” can have only one possible mean-

ing: all of Section 3345.

The term “section” has a specific meaning in the

“hierarchical scheme” that Congress uses in drafting

federal statutes. See Koons Buick Pontiac GMC, Inc.

v. Nigh, 543 U.S. 50, 60 (2004). A “section” is com-

prised of subsidiary “subsections,” “paragraphs,”

“subparagraphs,” and “clauses.” See id. at 60-61

(quoting the House’s and Senate’s drafting manuals).

So “section” is the “naming convention[]” for the

“most fundamental division” of the statute. See M.

Douglass Bellis, Statutory Structure and Legislative

Drafting Conventions: A Primer for Judges 7-8 (2008).

Here, the term refers to the entire “division” falling

under the “designation” of Section 3345. Jd. at 8.

The FVRA’s numerous and reticulated cross-

references confirm that Congress used “this section”

22

in its ordinary sense. As the Ninth and D.C. Circuits

both noted, Congress was precise in inserting inter-

nal cross-references into the FVRA. See Hooks, 816

F.3d at 559 (collecting the FVRA’s uses of “section,”

“subsection,” and “paragraph”); Pet. App. 12a. Cru-

cially, all of those cross-references follow the estab-

lished “naming conventions” for “basic subdivisions of

federal laws” described above. Bellis, supra, at 7.

This consistent and precise usage forecloses the gov-

ernment’s assertion that “this section” means “Sub-

section (a)(1).” Pet. Br. 33.

The government’s interpretation would again vio-

late the rule that the same words, used in the same

statute, carry the same meaning. See Powerex Corp.,

551 U.S. at 232. Indeed, every time the FVRA uses

the phrase “this section” or the term “section,” it re-

fers to the section in its entirety, not to a particular

subsection or paragraph within that section. For in-

stance, Subsection (c)(2) uses “this section” to refer-

ence all of Section 3345 when it defines “the expira-

tion of a term of office” “[flor purposes of this section

and sections 3346, 3347, 3348, 3349, 3349a, and

3349d.” 5 U.S.C. § 3345(c)(2) (emphasis added). So

too for the 14 other occurrences of “section,” see id.

§ 3345(a)(1); id. § 3345(a)(2); id. § 3345(a)(3); id.

§ 3347(a); id. § 3348(b); id. § 3348(c); id. § 3348(d)(1);

id. § 3349(a)(1); id. § 3349(b); id. § 3349a(a); id.

§ 3349b; id. § 3349c; id. § 3349d(a); § 3349d(b). Con-

gress plainly did not intend for “section” in Subdivi-

sion (b)(1) to have a meaning that is out of step with

the fifteen other provisions that use that same term.

23

CONCLUSION

For these reasons, and those in respondent’s brief,

the judgment below should be affirmed.

Respectfully submitted.

KATHRYN COMERFORD TODD JOHN P. ELWOOD

STEVEN P LEHOTSKY JEREMY C. MARWELL

JANET Y. GALERIA VINSON & ELKINS LLP

U.S. CHAMBER 2200 Pennsylvania

LITIGATION CENTER Ave., NW

1615 H Street, N.W. Suite 500 West

Washington, DC 20062 Washington, DC 20037

(202) 463-5337 (202) 639-6500

jelwood@velaw.com

GREGORY F. MILLER

VINSON & ELKINS LLP

1001 Fannin St.

Suite 2500

Houston, TX 77002

Counsel for Amicus Curiae the

Chamber of Commerce

of the United States of America

SEPTEMBER 2016