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

> Briefs, arguments, decisions, and more.

URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385016_0659%3A10

## Record

- **Collection:** Supreme Court brief
- **Document type:** Amicus Curiae Brief
- **Published:** January 1, 2016

## Text

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

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385016_0659%3A10. Public record. Not legal advice.