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Hooks ex rel. National Labor Relations Bd. v. Kitsap Tenant Support Services, Inc.

United States Court of Appeals, Ninth Circuit

March 7, 2016

RONALD K. HOOKS, Regional Director of the Nineteenth Region of the National Labor Relations Board, for and on behalf of the National Labor Relations Board, Petitioner-Appellant,
v.
KITSAP TENANT SUPPORT SERVICES, INC., Respondent-Appellee

Argued and Submitted, Seattle, Washington July 7, 2015.

Page 551

[Copyrighted Material Omitted]

Page 552

Appeal from the United States District Court for the Western District of Washington. D.C. No. 3:13-cv-05470-BHS. Benjamin H. Settle, District Judge, Presiding.

SUMMARY[**]

Appointments

The panel affirmed the district court's dismissal of a petition, filed pursuant to section 10(j) of the National Labor Relations Act, providing interim injunctive relief while the National Labor Relations Board processed an unfair labor practice complaint against Kitsap Tenant Support Services, Inc., because Lafe E. Solomon could not authorize the 10(j) petition as Acting General Counsel of the Board because he had not been properly appointed under the Federal Vacancies Reform Act (" FVRA" ).

The FVRA authorizes the President to temporarily fill vacancies in offices in the Executive Branch that ordinarily require Senate confirmation. The FVRA also provides conditions for when an appointee may simultaneously serve as an acting officer and be the President's nominee for Senate confirmation as to the permanent position.

As a preliminary matter, the panel held that neither the FVRA nor the National Labor Relations Act was the exclusive means of appointing an Acting General Counsel of the Board, and thus the President was permitted to elect between the two statutory alternatives to designate an Acting General Counsel. The panel rejected Kitsap Tenant Support Services, Inc.'s argument that because Solomon's appointment did not comply with section 3(d) of the National Labor Relations Act, the appointment was invalid.

The panel held that because Solomon served as Acting General Counsel while also being the nominee to the permanent position, he held his post in violation of the FVRA. The panel agreed with the D.C. Circuit's holding in SW General, Inc. v. NLRB, 796 F.3d 67 (D.C. Cir. 2015), as to 5 U.S.C. § 3345(b)(1)'s reach, and likewise concluded that Solomon lacked the authority to serve after he was nominated.

To be valid, a 10(j) petition must be authorized by the Board either through a quorum of three Board members directly authorizing the petition, or by the Board's General Counsel authorizing the petition pursuant to a previous delegation of the Board's 10(j) authority to the General Counsel. The Board conceded that the first avenue was not satisfied. The panel held that the second avenue was not satisfied either because Solomon was not properly serving as Acting General Counsel under the FVRA at the time that the 10(j) petition was filed.

The panel held that the Board explicitly waived any arguments based on the FVRA's exemption clause, and it did not otherwise contest the remedy sought by Kitsap Tenant Support Services, Inc., and therefore the district court properly dismissed the 10(j) petition.

Richard F. Griffin, Jr., Elinor L. Merberg, Jennifer Abruzzo, Laura T. Vazquez, Barry J. Kearney, Ruth E. Burdick (argued), and Jayme L. Sophir, National Labor Relations Board, Washington, D.C., for Petitioner-Appellant.

Gary Lofland (argued), Kellen Holgate, and Rachel Saimons, Halverson Northwest Law Group P.C., Yakima, Washington, for Respondent-Appellee.

Before: Jacqueline H. Nguyen and Michelle T. Friedland, Circuit Judges and Cormac J. Carney,[*] District Judge.

OPINION

Page 553

Michelle T. Friedland, Circuit Judge:

The Appointments Clause of the Constitution authorizes the President to appoint officers of the United States " by and with the Advice and Consent of the Senate." U.S. Const. art. II, § 2, cl. 2. This appeal requires us to consider the President's ability to temporarily fill vacancies in offices of the Executive branch that ordinarily require Senate confirmation. In particular, the parties contest the proper interpretation of the Federal Vacancies Reform Act (" FVRA" ), 5 U.S.C. § 3345 et seq., as it relates to the appointment ...


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