[00:00:03] Speaker 00:
Case number 15-1122, National Treasury Employees Union Petitioner versus Federal Labor Relations Authority.

[00:00:09] Speaker 00:
Ms.

[00:00:10] Speaker 00:
Giles for the petitioner, Ms.

[00:00:11] Speaker 00:
Faust for the respondent.

[00:00:17] Speaker 05:
Good morning.

[00:00:18] Speaker 05:
I'd like to reserve two minutes for rebuttal.

[00:00:22] Speaker 05:
This case is about whether our union, NTEU, can negotiate with an agency over access to that agency's crediting plans, which are rating guides used in their promotions.

[00:00:33] Speaker 05:
Although the FLRA has ruled previously, multiple times, that there is no bar to releasing such crediting plans, it departed from that precedent here and ruled for the first time that we're aware of that a particular regulation

[00:00:46] Speaker 05:
A FOIA regulation is an absolute bar to release in such documents.

[00:00:51] Speaker 04:
Is it really departing from its precedent here?

[00:00:56] Speaker 04:
The other cases in which they've said there was no bar were somewhat distinguishable from this one.

[00:01:02] Speaker 04:
They weren't.

[00:01:03] Speaker 04:
talking about negotiability in those cases, correct?

[00:01:06] Speaker 05:
That's true.

[00:01:06] Speaker 05:
In the previous cases, it usually came up in the unfair labor practice context.

[00:01:10] Speaker 05:
And this regulation did not come up, because I think it's never come up.

[00:01:14] Speaker 05:
We haven't found a case in which this regulation has been used or applied to bar access to these documents.

[00:01:20] Speaker 04:
So we actually have no case in which the FLRA has discussed this particular regulation.

[00:01:29] Speaker 05:
That's true.

[00:01:30] Speaker 05:
There's an older case called Airborne in which the OPM raised an amicus brief, 5 CFR 300, and the FLRA didn't pick up on that or address it.

[00:01:40] Speaker 05:
I don't think 300.201C has been addressed in any FLRA decision.

[00:01:47] Speaker 05:
The authority's main argument here is that we did not sufficiently address the applicability of this regulation, 5 CFR 300.201C, in our briefs and therefore waived our arguments.

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But the agency below said that our proposal was contrary to law, and the agency cited FOIA and FOIA case law and, in a single sentence, this particular regulation.

[00:02:09] Speaker 05:
And we responded to those arguments.

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And we furthermore said that no law creates an absolute bar against the release of credit.

[00:02:17] Speaker 05:
Ms.

[00:02:17] Speaker 03:
Jones, why don't you seek re-hearing before the authority?

[00:02:22] Speaker 05:
Well, that's not a prerequisite to coming into this court, and we did think the extraordinary circumstances requirement would be a hard hurdle to overcome.

[00:02:31] Speaker 05:
So we did not petition for reconsideration.

[00:02:33] Speaker 01:
Then on 300.201, however, other than that sentence about no law, there's no further discussion of that that was put forth to the authority.

[00:02:46] Speaker 05:
I do want to be frank with the court.

[00:02:47] Speaker 05:
We did not cite 300.201C.

[00:02:49] Speaker 05:
We cited FOIA, FOIA case law, and the statement that no law creates a bar to release an accredited case.

[00:02:55] Speaker 01:
And I guess the question then for us is how, at what level of generality do we interpret the no objection not previously urged before the agency shall be considered because obviously you didn't discuss the regulation in specific

[00:03:16] Speaker 01:
and some of the arguments they are putting forth now were not put forth before the agency.

[00:03:22] Speaker 01:
So how would you urge us to explain the distinction between objection generally raised and one more specifically raised for purposes of this statute?

[00:03:33] Speaker 05:
Well, two responses.

[00:03:34] Speaker 05:
One, our statement that no law creates an absolute bar against the release of these documents was not our only argument.

[00:03:39] Speaker 05:
We did make multiple FOIA arguments.

[00:03:42] Speaker 01:
But on this, that would be the only real response, I think.

[00:03:47] Speaker 05:
Well, it is a FOIA regulation.

[00:03:49] Speaker 05:
I think the FLRA doesn't dispute that.

[00:03:50] Speaker 05:
And we did discuss FOIA.

[00:03:53] Speaker 05:
And I do want to bring to the Court's attention a ruling, which is not in our briefs because I only found it preparing for oral argument.

[00:03:58] Speaker 05:
But in a 1985 case, this Court in Treasury versus FLRA

[00:04:03] Speaker 05:
It's at 762 F.

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2nd 1119.

[00:04:05] Speaker 05:
The agency there did not quote or cite the regulation that was in dispute, and the court nevertheless found that there had not been a waiver.

[00:04:13] Speaker 05:
So I don't think that's an automatic bar to our waiver arguments.

[00:04:16] Speaker 05:
But we would submit you have to take all our arguments in total, the four-year arguments, and the fact that we made that statement about no law creating an absolute bar to the release of these documents.

[00:04:29] Speaker 05:
The context here is there were five proposals in dispute before the FLRA and multiple agency arguments on the non-negotiability of each one.

[00:04:38] Speaker 05:
Understandably, here we are focused just on the one proposal in dispute and the one argument that the FLRA addressed.

[00:04:45] Speaker 05:
Of course, we are expanding and hopefully adding more detail to our argument below, as every appellant does and every appellant has a right to do.

[00:04:53] Speaker 05:
Getting past waiver, the agency doesn't dispute this as a FOIA regulation, and FOIA permits agencies to withhold documents, but it doesn't mandate it.

[00:05:03] Speaker 05:
Using a FOIA regulation as a categorical bar would undercut the strong public policy in favor of collective bargaining.

[00:05:10] Speaker 03:
Ms.

[00:05:10] Speaker 03:
Jobs, it's not entirely clear to me what the union's proposal seeks.

[00:05:17] Speaker 03:
it seems to me that there's a stronger case that the union is entitled to this information, for example, for the purpose of having an expert labor economist or whatever appropriate expert ensure that they're valid, that they're not biased, and that would be part of the union's representation of its employees' interests.

[00:05:39] Speaker 03:
However, you also in your briefing appear to be saying, hey, this needs to be

[00:05:43] Speaker 03:
available for members to know what these criteria are, universities do it, they should be doing it too.

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And that strikes me as actually on quite different footing, that if they want to have criteria by which they can get a more spontaneous answer or a less strategically designed answer from a candidate, that's management prerogative, is it not?

[00:06:06] Speaker 03:
So it's just not entirely clear to me which of those is the proposal, or both, or is it

[00:06:12] Speaker 05:
You're right that originally this typically comes up in a more specific context, in a ULP or something where we narrowly need it.

[00:06:19] Speaker 05:
We are asking for access to these documents, although stepping back, we're actually just asking for the opportunity to talk with the agency about it.

[00:06:26] Speaker 05:
We can't even come to the negotiations table.

[00:06:29] Speaker 05:
But were we to get access to the documents, and were the agency to find that

[00:06:33] Speaker 05:
it didn't need the safeguards that are built into the proposal, then we would evaluate the crediting plans on a broader scale to see if they are compliant with the rest of 5 CFR 300.

[00:06:44] Speaker 03:
I'll try to follow that.

[00:06:46] Speaker 03:
If you said the agency didn't need the safeguards built into the proposal, what are you referring to?

[00:06:50] Speaker 05:
No, I'm saying we would only get them if the agency decided.

[00:06:53] Speaker 05:
There are safeguards built into our proposal.

[00:06:55] Speaker 05:
They can orally discuss it with us instead of handing it over.

[00:06:58] Speaker 05:
So we wouldn't even get them if the agency felt the safeguards needed to be invoked.

[00:07:03] Speaker 05:
if they felt that was not a concern and handed them over to us, then it is true.

[00:07:08] Speaker 05:
We would look at them in a slightly broader viewpoint.

[00:07:11] Speaker 01:
Can I go ahead?

[00:07:13] Speaker 01:
Ask another question on the waiver point.

[00:07:15] Speaker 01:
Sorry to take you back to that.

[00:07:17] Speaker 01:
There's a regulation 24.25C1 that says the union's response must include the arguments and authority supporting the opposition in any agency argument, including specific citation, any law, rule, or regulation on which you rely.

[00:07:31] Speaker 01:
So how should we deal with that regulation?

[00:07:34] Speaker 05:
So that's the FLRA's regulation, and I believe it sort of dovetails with the statute and the objection.

[00:07:38] Speaker 05:
It's the same analysis.

[00:07:39] Speaker 05:
Did we sufficiently address it below?

[00:07:42] Speaker 01:
Well, to my point about how should we think about the generality of the term objection, and you rightly say, well, we should be able to further develop our arguments here.

[00:07:51] Speaker 01:
I agree with that.

[00:07:52] Speaker 01:
But if the term objection means you have to put forth the arguments and authorities, which their regulation says you do, that didn't really happen here, at least with respect to

[00:08:04] Speaker 01:
300.

[00:08:04] Speaker 05:
Well, we do think our FOIA cases are the authorities, and we think our FOIA arguments are the arguments that we want to fight.

[00:08:12] Speaker 01:
So it really blends.

[00:08:12] Speaker 01:
In the end, it's not just that one sentence, no law, but it's the surrounding FOIA arguments you think are the response, ultimately.

[00:08:20] Speaker 05:
Yes, that's our position.

[00:08:22] Speaker 03:
And I mean, I'm not sure whether you have any insight on which you rely language, whether you're relying on that.

[00:08:31] Speaker 03:
You would be relying on that regulation or the authority would be relying on that information?

[00:08:35] Speaker 03:
I don't know if that makes any difference as to the applicability of 2424.25C1.

[00:08:42] Speaker 05:
I'm not sure.

[00:08:43] Speaker 05:
I think we're saying that our FOIA arguments and the authorities that we cited are the ones that we rely in support of our claim that we should have access to these discussions over these crediting plans.

[00:08:54] Speaker 05:
I think my time is up if I'm going to reserve time.

[00:08:57] Speaker 05:
Thank you.

[00:09:06] Speaker 02:
Good morning, Your Honors.

[00:09:07] Speaker 02:
May it please the Court, my name is Stephanie Faust on behalf of Respondent, the Federal Labor Relations Authority.

[00:09:13] Speaker 02:
With me at council table are the agencies Solicitor, Fred Jacob, and the Deputy Solicitor, Zachary Henegy.

[00:09:19] Speaker 02:
The Court should dismiss the petition for review because the Union failed to raise its 5 CFR, section 300.201C arguments to the authority in the first instance.

[00:09:31] Speaker 02:
The court may not consider any objection that was not urged before the authority unless extraordinary circumstances excuse the failure to do so.

[00:09:40] Speaker 02:
Here, the union made no mention of section 300.201C to the authority, nor did it raise any of the arguments that span nine pages of its opening brief to the court.

[00:09:51] Speaker 02:
The union now claims that in raising its FOIA arguments, it preserved its 201C arguments.

[00:09:57] Speaker 02:
However, the union's FOIA arguments were insufficient to put the authority on notice that the union would pursue 201C arguments on appeal for three reasons.

[00:10:08] Speaker 02:
First, in raising the FOIA, the union at best raised 201C implicitly.

[00:10:14] Speaker 02:
But under the court's precedent in National Weather Service, raising an argument to the authority implicitly is insufficient to preserve it on appeal.

[00:10:24] Speaker 02:
Second, 201C is not obviously on its face a FOIA regulation as opposed to a general regulation intended to protect the integrity of federal test material, including crediting plans.

[00:10:38] Speaker 02:
The authority only would have known 201C was a FOIA regulation had the union made that argument to the authority or had the authority looked beyond the plain text of the regulation to the 1985 Federal Register notice.

[00:10:52] Speaker 02:
And that leads into the third reason.

[00:10:54] Speaker 02:
As Judge Kavanaugh acknowledged, the authority's negotiability regulations provide that a union must make specific citation to the law, rule, or regulations on which it relies in opposing an agency's statement of position.

[00:11:09] Speaker 02:
Again, the union made no citation to 201C here.

[00:11:13] Speaker 01:
I guess the counter to that would be you all, or 300.201C is raised and the union responds with a general

[00:11:24] Speaker 01:
comment that no law actually bars this and then explains the FOIA regulations, which is the substance of its argument.

[00:11:32] Speaker 01:
So it's not that they're raising something that was never contemplated before.

[00:11:40] Speaker 01:
It's that something was raised, they responded with a general

[00:11:46] Speaker 01:
answer, I guess, and then explained some of the details of why they, more broadly, don't think that's proper.

[00:11:55] Speaker 01:
So that seems a different circumstance to me than the usual no objection, not previously urged.

[00:12:01] Speaker 01:
Mel?

[00:12:02] Speaker 02:
Well, Your Honor, the Court has, under Section 7123C, required parties to raise their arguments to the authority with specificity.

[00:12:11] Speaker 03:
And as you said, the point is, were you on notice?

[00:12:14] Speaker 03:
And I'm not sure what you're saying about not being on notice, because the basic gist of the union's argument is that the agency has miscast

[00:12:29] Speaker 03:
effect of FOIA and the FOIA regulation on the negotiability of this visibility of disclosure.

[00:12:37] Speaker 03:
It doesn't bar you from disclosing it.

[00:12:41] Speaker 03:
It permits your client to make a judgment about that.

[00:12:45] Speaker 03:
And therefore, if in the context of bargaining, you thought the judgment was we can afford it in a limited way,

[00:12:51] Speaker 03:
to give over these instruments, that it doesn't prevent that.

[00:12:56] Speaker 03:
It authorizes you.

[00:12:57] Speaker 03:
It gives you some leeway.

[00:12:59] Speaker 03:
And so they're making that argument.

[00:13:01] Speaker 03:
Clearly, you knew that argument wasn't the case.

[00:13:03] Speaker 03:
And how does this one little regulation that's further elaborating it make a difference in terms of your ability to prepare?

[00:13:13] Speaker 02:
Well, Your Honor, again, the Union's 201C arguments in its opening brief to the court were not raised to the authority.

[00:13:19] Speaker 03:
But the gist of them is very much there.

[00:13:22] Speaker 03:
201C is not the basis of their argument.

[00:13:25] Speaker 03:
It's the basis of your argument, right?

[00:13:27] Speaker 03:
And they're responding to it.

[00:13:29] Speaker 02:
Your Honor is correct.

[00:13:31] Speaker 02:
201C is the basis of the agency's argument and the authority found that the union had conceded that argument when it did not respond to it.

[00:13:39] Speaker 01:
In raising the union's... That makes no sense, obviously, in the context of the overall back and forth here that they conceded it.

[00:13:46] Speaker 01:
I mean, I guess you could...

[00:13:49] Speaker 01:
But they didn't waive, they made a bunch of arguments about why no law, to their words, created an absolute bar against releasing crediting plans.

[00:14:02] Speaker 02:
Well, Your Honor, the authority found that the union did not specifically counter the agency's assertion that 201C expressly prohibits the release of crediting plans.

[00:14:13] Speaker 02:
It only, as Your Honor said, made that generalized objection that no law creates an absolute bar.

[00:14:18] Speaker 02:
And if that kind of statement were sufficient to preserve an issue, then there would be no need, in fact, for a response in a negotiability proceeding before the authority.

[00:14:28] Speaker 01:
It's not always going to.

[00:14:30] Speaker 01:
Wait, so can you just explain that?

[00:14:32] Speaker 01:
What do you mean?

[00:14:32] Speaker 02:
Yes, Your Honor, if an agency could argue to the authority that a proposal was barred by law and a union in response could say that no law creates an absolute bar against the release of crediting plans in this instance, there would be no purpose for a response.

[00:14:48] Speaker 03:
But there's much more here.

[00:14:49] Speaker 03:
They've said FOIA, and by implication a FOIA regulation, doesn't bar because it gives you a more nuanced

[00:15:01] Speaker 03:
choice whether to disclose in light of what agency hiring interests might be impaired by disclosure.

[00:15:09] Speaker 03:
And that is true both of FOIA in general and of this regulation.

[00:15:13] Speaker 03:
So the notion that you've somehow been sandbagged, I just don't even follow how that could be.

[00:15:19] Speaker 03:
And it also seems like this is an argument that's been made in the context of

[00:15:23] Speaker 03:
you know, six different arguments at the authority level with each of them with, you know, many, many subparts.

[00:15:29] Speaker 03:
And so we would be applying a very demanding standard of preservation in that context with a, you know, a forest of arguments to say that every single one, every branch has to be articulated in order for it to be preserved.

[00:15:45] Speaker 02:
Well, first, Your Honor, I would note that the Union did not make the argument to the authority that not only the FOIA, but also FOIA regulations would not bar the release of crediting plans.

[00:15:57] Speaker 03:
How could a FOIA regulation bar something that FOIA doesn't bar?

[00:16:00] Speaker 02:
Well, Your Honor, because the authority didn't reach that issue in this instance because it did find concession, I can't speak to the substance of that.

[00:16:09] Speaker 03:
No, but just as a general matter, it would be unauthorized as a regulation if it barred something that FOIA didn't

[00:16:15] Speaker 03:
actually bar, wouldn't it?

[00:16:17] Speaker 02:
Again, Your Honor, the authority didn't reach that, but here the union did not even argue to the authority that not only FOIA, but the regulations, such as 201C, which the agency clearly cited, did not bar the release of crediting plans.

[00:16:32] Speaker 01:
I guess this blends in your merits argument, because you could say that the reason they didn't explain more specifically about 201.C is because they don't have a good answer to it.

[00:16:43] Speaker 02:
Is your honor referring to the authority or to the union?

[00:16:46] Speaker 01:
The authority.

[00:16:48] Speaker 01:
Well, your honor is... I mean, the union doesn't have a good answer, I should say, to 201C.

[00:16:53] Speaker 01:
Is your merits position?

[00:16:57] Speaker 02:
Our merits position is that the union did not raise any response to the 201C argument, and so the authority acted reasonably and in accordance with its negotiability regulations in treating the union as conceding that point.

[00:17:11] Speaker 02:
And in light of that concession, the authority reasonably found that there was a conflict between the proposal and 201C.

[00:17:18] Speaker 02:
201C's plain language provides that all civilian federal employees have a duty to protect the confidentiality of test material broadly, not merely OPM-created or controlled test material, and to assure the release of that material, including crediting plans, only in conjunction with a competitive service examination.

[00:17:40] Speaker 01:
That's what I mean by your merits argument.

[00:17:41] Speaker 01:
Your merits argument is the plain terms of this regulation are inconsistent with the union's position.

[00:17:49] Speaker 02:
Yes, the authority found that there was an apparent conflict between the proposal and the plain language of 201C.

[00:17:55] Speaker 01:
And absent any argument, again, on the merits, the text controls.

[00:18:02] Speaker 01:
That's your position.

[00:18:03] Speaker 02:
That's correct, Your Honor.

[00:18:04] Speaker 02:
The authority applied its negotiability regulations to fine concession in that instance.

[00:18:09] Speaker 03:
If the union had proffered a proposal that was, I would have to characterize it clearer than the one that they proffered, that said, our concern, we recognize management prerogative to have not only test questions and answers, but criteria for hiring to remain confidential.

[00:18:31] Speaker 03:
But we have a concern on behalf of our members with validity and the lack of arbitrariness and bias in employment criteria.

[00:18:40] Speaker 03:
So what we're proposing to negotiate over is that the union receiving confidence

[00:18:47] Speaker 03:
something like these crediting plans for the sole purpose of having an expert independently evaluate it on behalf of our members.

[00:18:57] Speaker 03:
We would keep it in confidence and not release it to members who are incumbent who might not qualify for these promotions.

[00:19:04] Speaker 03:
Is that something that you think would be negotiable?

[00:19:07] Speaker 02:
Well, Your Honor, because the authority has not ruled on that, I can't speculate on how it would.

[00:19:13] Speaker 02:
However, I can tell, Your Honor, that in a more recent case that was not cited in the briefs, the 2009 Fourth Dix case, the authority found in the particularized need context that an agency was not required to release crediting plans

[00:19:29] Speaker 02:
relying on the precedent of this court in National Treasury Employees Union versus US Customs Service and the Seventh Circuit in the Kaganov case, that crediting plans need not be released under FOIA Exemption 2.

[00:19:44] Speaker 02:
Allowing the Union to seek initial review of its claims before this court would conflict with congressional intent.

[00:19:51] Speaker 02:
Oh, I'm sorry, Your Honor, I just saw that my time has expired.

[00:19:56] Speaker 02:
Thank you, Your Honors.

[00:19:57] Speaker 04:
Thank you.

[00:19:59] Speaker 04:
I think she, there was some time left.

[00:20:02] Speaker 04:
Okay.

[00:20:03] Speaker 04:
You had a minute remaining.

[00:20:05] Speaker 04:
We'll give you two.

[00:20:07] Speaker 05:
Just briefly, there are of course a number of waiver cases out there by this court and we would submit that the ones that where this court has held magic words are not required to preserve an argument is the one that's on point for the 2014 ruling where you said it is permissible for a party to present a

[00:20:24] Speaker 05:
narrower argument than it made below without the waiver concerned.

[00:20:28] Speaker 01:
The agency cites, in essence, the text of the regulation.

[00:20:32] Speaker 01:
Your response is, no, the text, the regulation doesn't control reading your response, I think generously.

[00:20:41] Speaker 01:
But why, just going to the merits, why doesn't the text control?

[00:20:45] Speaker 01:
Your response on the merits seems to be, well, it's a FOIA regulation, so read the text of the regulation in light of its

[00:20:54] Speaker 01:
purpose.

[00:20:55] Speaker 01:
Is that your argument?

[00:20:57] Speaker 05:
An additional argument is that the text of the regulation seems to apply only to OPM documents and these are food nutrition and consumer service documents.

[00:21:05] Speaker 05:
And if you look at 300.201 generally the first part talks about

[00:21:10] Speaker 05:
releasing information to the public.

[00:21:12] Speaker 05:
So we think it's clear just from the text without going back to the implementing statute that it means to apply to releasing documents to the public.

[00:21:20] Speaker 01:
But it says each employee entrusted with test material has a positive duty to protect the confidentiality of that material and to assure release only as required to conduct an examination authorized by the office.

[00:21:37] Speaker 01:
That's beyond FOIA.

[00:21:41] Speaker 05:
So I believe that last part talks about examinations conducted by OPM.

[00:21:45] Speaker 05:
That's what that regulation would be limited to.

[00:21:48] Speaker 01:
OK, so that's your argument, that in context it doesn't reply.

[00:21:52] Speaker 01:
But this is where the authority is a little bit hamstrung, because they specifically say, well, we didn't get any decision.

[00:22:00] Speaker 01:
We didn't get any arguments to that effect.

[00:22:03] Speaker 01:
And that's where the waiver point does seem to give them some force.

[00:22:07] Speaker 05:
Well, we didn't give them a FOIA argument, but you're certainly correct.

[00:22:10] Speaker 05:
We didn't specifically say,

[00:22:11] Speaker 05:
The implementing statute for this regulation is FOIA.

[00:22:14] Speaker 05:
We did not raise that.

[00:22:15] Speaker 01:
And on this employee question, does it apply to all employees or apply to OPM?

[00:22:20] Speaker 01:
That's not put forward to the authority below either, correct?

[00:22:24] Speaker 05:
It was not, correct.

[00:22:26] Speaker 01:
Okay, and that's why we don't have, I mean you're raising it now, that's why we don't have a good explanation from them on this.

[00:22:37] Speaker 05:
Okay.

[00:22:37] Speaker 05:
Thank you.

[00:22:38] Speaker 05:
Thank you, counsel.

[00:22:39] Speaker 04:
The case will be submitted.