[00:00:00] Speaker 00: Case number 16-1144, United States Department of Homeland Security, Immigration and Customs Enforcement Petitioner versus Federal Labor Relations Authority. [00:00:10] Speaker 00: Mr. Busa for the petitioner, Mr. Jacob for the respondent. [00:00:18] Speaker 02: Good morning and may it please the court, Joe Busa on behalf of the petitioner. [00:00:21] Speaker 02: And with your permission, I'd like to reserve five minutes for rebuttal. [00:00:25] Speaker 02: The Federal Labor Relations Authority failed to give effect to the Office of Personnel Management's reasonable interpretation of its own regulations. [00:00:34] Speaker 02: As a result, the Department of Homeland Security has been ordered to pay premium overtime pay for overtime hours that are never being worked. [00:00:44] Speaker 02: We respectfully request that this Court grant the petition. [00:00:47] Speaker 02: I think the best place to start in analyzing this question is with the text of the regulations themselves. [00:00:53] Speaker 02: I actually have a better place to start, if you don't mind. [00:00:55] Speaker 04: Certainly, I do. [00:00:56] Speaker 04: I wanted to ask about the new Administrative Leave Act. [00:01:01] Speaker 04: which both sides don't seem particularly interested in, and about which I'm confused as to why neither side is interested in. [00:01:09] Speaker 04: So as I understand the proposal of the Union, it was, as I'm reading from the Plura decision, that this portion of the proposal requires the agency to grant administrative leave and code it as such for administrative purposes. [00:01:28] Speaker 04: rather than for the AUO's certified team members, rather than granting or coding the time as official time, right? [00:01:36] Speaker 04: That's the proposal, that it be administrative leave. [00:01:40] Speaker 04: And in the discussion of why that's done, which is in the record of the post-petition conference, [00:01:48] Speaker 04: It says, and it's kind of long, but I think it's all important, this method, according to the union, is intended to operate by requiring the agency to grant administrative leave, coded for administrative purposes, the time spent. [00:02:01] Speaker 04: The union explained that coding this time as administrative leave would prevent AUO-certified LEOs participating in CBA negotiations from losing AUO pay. [00:02:12] Speaker 04: You may explain that after 30 cumulative days or 10 consecutive days on official time, an AUO certified employee would lose AUO time. [00:02:21] Speaker 04: So it seems like it was not only the proposal, but central to the proposal that this be administrative leave time. [00:02:29] Speaker 04: Is that park fair? [00:02:31] Speaker 04: I think that is a fair characterization, Your Honor, yes. [00:02:33] Speaker 04: All right. [00:02:33] Speaker 04: So if that's fair, and we now have a new statute which specifically says [00:02:42] Speaker 04: During any calendar year, an agency may place an employee at administrative leave for a period of not more than 10 work days, and also says that any agency shall record administrative leave separately from leave authorized under any other provision. [00:02:59] Speaker 04: That would seem to put this proposal at risk for a completely different set of reasons, namely a statute [00:03:06] Speaker 04: that is inconsistent. [00:03:08] Speaker 04: Now, I don't know whether that's the right answer or not, but I don't understand how we can go forward because none of this has happened yet with something that might completely moot anything we do today. [00:03:23] Speaker 02: Your Honor, I don't think the issue would be moot, at least with respect to the first 10 days on administrative leave. [00:03:29] Speaker 04: You know, I got that, but I also read here that we're not talking, in the distinction between hours and weeks, that we're not talking about a few days here, we're talking about weeks of time. [00:03:39] Speaker 04: I think that's right, Your Honor. [00:03:42] Speaker 04: Maybe they'll come back and say we'll be satisfied with 10 days, and that's all we're asking for, but that's not what they're asking for here. [00:03:48] Speaker 04: I'm not jumping to the merits. [00:03:50] Speaker 04: I don't actually know. [00:03:51] Speaker 04: I'm actually reading the statute. [00:03:54] Speaker 04: It says that OPM is supposed to come out with regulations. [00:03:57] Speaker 04: Have they done that yet? [00:03:58] Speaker 04: No, Your Honor. [00:03:58] Speaker 04: My understanding is that they have not. [00:04:00] Speaker 04: Well, they're slow because they're supposed to do that not later than 270 calendar days. [00:04:04] Speaker 04: I think that's right, Your Honor. [00:04:06] Speaker 04: so i don't know maybe they'll be a different proposal which will be completely consistent with the statute and may be completely consistent with your p m regulations in which case it's just one argument but uh... i'd be a chance to have an argument uh... but understand why [00:04:29] Speaker 04: At least your side is resisting the need for a remand here to have Fleur reconsider this. [00:04:40] Speaker 04: I appreciate Fleur doesn't want to reconsider this. [00:04:43] Speaker 04: That's usually not high on our list of reasons not to allow reconsideration. [00:04:47] Speaker 02: Indeed, Your Honor, and I don't want to resist too heavily. [00:04:50] Speaker 02: If the Court concludes that this new statutory enactment is a good reason to remand, I think that could be a permissible outcome. [00:04:59] Speaker 02: But I do think that the authority has made clear they don't think that [00:05:05] Speaker 02: They think that any period of official time, however characterized, could be excluded from a retrospective review period. [00:05:14] Speaker 02: And so I do think that that pure question of law is still presented in this case. [00:05:19] Speaker 04: Well, they haven't decided that in light of the statute that says that the agency shall record administrative leave separately from leave authorized under any other provision of law. [00:05:28] Speaker 00: That's true. [00:05:28] Speaker 04: There is a provision of law allowing official time, which covers representation. [00:05:35] Speaker 04: I don't know what that means. [00:05:36] Speaker 04: No one's interpreted it yet. [00:05:38] Speaker 04: And I'd hate to be the first one to interpret it without a view from the agency on the subject, which you have not offered to us. [00:05:47] Speaker 02: That's true, Your Honor. [00:05:48] Speaker 02: But I do think that the authority itself has made clear what it thinks about the bargainability of exclusion of time of any amount, not specifically enumerated in the guidance, Your Honor. [00:06:04] Speaker 02: Again, I guess we don't know what the authority would say about the effect of the new statute. [00:06:09] Speaker 02: They haven't argued here before you that it changes anything, and so I suspect we know what their answer would be. [00:06:16] Speaker 02: And I do think it's important to note that the authority is a little short-staffed. [00:06:23] Speaker 03: How do you digest this now and how does it affect your thinking? [00:06:36] Speaker 03: I don't know. [00:06:36] Speaker 02: That's true, Your Honor. [00:06:38] Speaker 02: We don't actually know what their answer would be. [00:06:39] Speaker 02: What we do know, and I think this goes to the point, at least somewhat, is in a footnote in their red brief to this court, they note that then Chairman Pizella thought that maybe remand could be appropriate or something like that, or reconsideration of this issue in light of OPMs having joined our briefs to this court. [00:07:00] Speaker 02: But the authority made clear that it did not, as an institution, [00:07:04] Speaker 02: asked for a remand for reconsideration, and they also noted that was notwithstanding the 2016 Act, which they don't think changes their conclusion. [00:07:15] Speaker 04: And so... Well, we don't... This is a sentence without any explanation. [00:07:21] Speaker 04: And it doesn't even say they voted against, it just says they haven't voted to seek. [00:07:26] Speaker 04: I don't know what that means. [00:07:27] Speaker 02: Right. [00:07:28] Speaker 04: So, I mean, it's a lot of reading between lines, where the lines aren't even there. [00:07:34] Speaker 02: So I do think if this court thought the 2016 act changed the case such that a remand would be appropriate, I'm not here to tell you that that would be inappropriate. [00:07:45] Speaker 02: But I do think you have the judicial power to continue to hear this case. [00:07:49] Speaker 03: Yeah, and we also have the judicial power to rule against you. [00:07:52] Speaker 03: Absolutely, Your Honor. [00:07:53] Speaker 02: I don't mean to deny that. [00:07:54] Speaker 03: I don't understand why you would resist the remand. [00:07:58] Speaker 03: I don't know whether you're in a better position or not. [00:08:00] Speaker 03: You're certainly not in a worse position. [00:08:02] Speaker 03: There is certainly an argument on the other side of this case. [00:08:06] Speaker 03: Inconsistent with yours, but the point where what we're suggesting to you is there's a new statute, and the authority ought to have something to say about it before court considers it. [00:08:17] Speaker 03: That makes sense to me, Your Honor. [00:08:33] Speaker 02: It is fairly complex. [00:08:35] Speaker 02: I do think that the department has a significant interest in judicial resolution of this issue, sort of as soon as possible. [00:08:43] Speaker 02: I mean, we briefed to you the ongoing grievance that is still pending before the FLRA. [00:08:48] Speaker 03: I guess you'll move the people on your side along to get done what they need to do, including OPM, right? [00:08:55] Speaker 02: I'm sorry, Your Honor, done what they need to do? [00:08:57] Speaker 03: I think OPM's under... To say what they have to do about the new statute. [00:09:02] Speaker 02: OPM certainly has the obligation under Congress's statute to issue regulations for the Administrative Leave Act. [00:09:09] Speaker 02: I don't think OPM thinks that that affects the core issue of whether there is discretion for any agency to exclude any amount of time from within a review period. [00:09:17] Speaker 03: More to trust is when we say we're perplexed enough that it might make sense for this case to go back. [00:09:24] Speaker 02: I think that would be an appropriate disposition if you came to that determination. [00:09:28] Speaker 02: I would only ask that in doing so, if you also have determination as to what these regulations leave discretion for in terms of bargainability, that you say so. [00:09:38] Speaker 02: Because, again, I think the authority has its own view of what OPM's regulations mean. [00:09:45] Speaker 02: They haven't been giving due deference to OPM's own interpretations. [00:09:50] Speaker 03: That's a problem that we think only this- There will be no need for us to opine on the hour error. [00:09:56] Speaker 03: You are not coming in in the best position claiming that we have a deference to OPM given the posture of this case. [00:10:03] Speaker 03: That's why people have some problems with hour deference and you did it as poorly as it could be done respectfully. [00:10:11] Speaker 03: And I don't think any judge ought to pay one second of attention to what you suggest is the other agency's view, given that they are not presently before us, have not asked to be before us, have not officially, that is not the way our shoot. [00:10:27] Speaker 03: And so you really need to get that straight. [00:10:29] Speaker 03: That's my view, and it explains why some judges are irritated with our deference. [00:10:35] Speaker 03: The way you pose it here is outrageous, quite frankly. [00:10:39] Speaker 02: I appreciate that, Your Honor. [00:10:40] Speaker 02: I think that even discounting OPM's appearance on our briefs to this Court, we still have OPM's construction of its own regulations in 97 and 2002. [00:10:50] Speaker 03: Counsel, are you asking, is there any reason you would oppose remand? [00:10:54] Speaker 04: No, Your Honor. [00:10:57] Speaker 04: All right. [00:10:57] Speaker 04: And on the merits, do you have anything to say other than what you said in your briefs? [00:11:02] Speaker 04: No, Your Honor. [00:11:03] Speaker ?: Okay. [00:11:03] Speaker 04: All right. [00:11:04] Speaker 04: We'll let you reserve your time in case you need to rebut. [00:11:26] Speaker 01: Good morning, Your Honors. [00:11:26] Speaker 01: May I please support? [00:11:27] Speaker 03: You don't have to button your coat if it's going to be short and say, we agree you should remand. [00:11:30] Speaker 01: I should always button my coat. [00:11:31] Speaker 01: Your Honor, with your respect to the court. [00:11:35] Speaker 01: With me, my name is Fred Jacob. [00:11:37] Speaker 01: I'm a Solicitor of the FLRA. [00:11:38] Speaker 01: With me is Zach Hennigy, who's a Deputy Solicitor, and Hampton Stennis is a Council Table, who's Union Council. [00:11:44] Speaker 01: To address the questions Your Honors raised regarding the Administrative Leave Act, one factual matter is OPM has issued interim regulations on the Administrative Leave Act. [00:11:54] Speaker 01: It did so in July, but it has not issued final regulations. [00:11:58] Speaker 01: The authority's position is that the Administrative Leave Act shouldn't require remand from the court, in that the administrative leave component of the proposal was critical when it was first made at the bargaining table, because at the time, DHS believed and conceded [00:12:20] Speaker 01: that administrative leave would be excludable as a form of AUO. [00:12:25] Speaker 01: That was its position at the bargaining table, that was its position through the post-petition conference, that was its petition all the way until about a month after it filed its motion for reconsideration. [00:12:36] Speaker 01: So the administrative leave aspect was a component of the original proposal, because that would be the means by which the parties could exclude official time. [00:12:46] Speaker 01: That said, under the authority's 1986 National Border Patrol Council case, official time, regardless of how it's coded, could be excluded from AUO as a... Does it say that in the, in the opinion? [00:12:58] Speaker 01: In the... In the authority's current opinion. [00:13:01] Speaker 01: Yeah. [00:13:01] Speaker 01: I mean, I think it certainly relies on the National Border Patrol Council case. [00:13:06] Speaker 04: But does it say that we're going to accept a different proposal than the one here and that alternative proposal is the one that we find negotiable? [00:13:15] Speaker 01: Well, what it does say, it doesn't go that specifically, Your Honor. [00:13:18] Speaker 01: Obviously, it was considering the proposal in its entirety. [00:13:22] Speaker 01: The authority does say, though, as one of its grounds for distinguishing the guidance, that official time, that the proposal doesn't cover, or the guidance doesn't cover the subject of the proposal, which is the exclusion of official time generally. [00:13:38] Speaker 04: Well, I understand that, but the mechanism for excluding it [00:13:41] Speaker 04: was supposed to be by coding it as administratively correct and that they don't say we don't need that or that's not part of the issue right I mean maybe maybe this is the answer that they'll come back with on sure on remand that now no actually we're just going to call it official time but that's not what we have in front of us [00:14:00] Speaker 01: I think the authority's position is that, and this is the position we stated in our brief, is that when, if the proposal were negotiated, because it is just a starting place. [00:14:08] Speaker 04: It wouldn't be negotiable if the proposal is for administrative leave and the statute says you can't have administrative leave either because what you're really asking for is official or if because it's for more than 10 days, then it wouldn't be negotiable at all, right? [00:14:25] Speaker 04: that that's yes yes but so that's why your footnote that says this can always be negotiated doesn't move me because you have to first decide that that's not consistent with the statutory requirement but whatever i think what me i don't know if this will move you but i think what [00:14:45] Speaker 01: may be helpful is that parties all the time are at the table making proposals and counterproposals. [00:14:52] Speaker 01: In any negotiability case, the authority could say, go negotiate this proposal. [00:14:57] Speaker 01: A counterproposal may come up during the course of the negotiated proposal. [00:15:00] Speaker 03: No, I mean, you miss what the chief judge is saying, that it's facially non-negotiable. [00:15:06] Speaker 03: And that's the question that's probably before the authority. [00:15:08] Speaker 03: It's facially non-negotiable because the label that's put onto it. [00:15:12] Speaker 03: I can see how you would try and argue around it. [00:15:14] Speaker 03: But the arguments that you're raising now are not what the authority said. [00:15:19] Speaker 03: And it may be that you'll correct that on remand to address it, but that's not what's said. [00:15:23] Speaker 03: I mean, you're in the label of the proposal, which is all that was before you and before us, appears to make it non-negotiable. [00:15:33] Speaker 03: That's the end of it. [00:15:33] Speaker 03: That's all we would say. [00:15:36] Speaker 01: And I understand the court's concerns. [00:15:38] Speaker 01: I think the authority's [00:15:42] Speaker 01: Obviously, the authority would prefer the court to remand it than to decide it on its own. [00:15:48] Speaker 01: And that is certainly if the court believes that the Administrative Leave Act is critical to resolving this case and isn't something that can be negotiated on the back end or negotiated around where one provision might drop out or one sentence might drop out and a new sentence put in to replace it based on the agreement of the parties. [00:16:07] Speaker 01: then the authority would be the best place to decide to have the first incident. [00:16:11] Speaker 03: But you see, that kind of decision from the authority would be something like, what we're looking at is spatially impermissible, but we understand that if you change the proposal in these ways, it would be acceptable, so we're sending it back. [00:16:23] Speaker 03: That's not what you said. [00:16:26] Speaker 03: That's not what your decision said to the parties. [00:16:29] Speaker 01: The authority's current decision. [00:16:30] Speaker 01: Right. [00:16:32] Speaker 01: Well, obviously, the Administrative Leave Act was passed after the authority's two cases. [00:16:37] Speaker 01: I understand. [00:16:38] Speaker 03: So that's why I'm saying to you, I'm emphasizing what we're trying to say to you. [00:16:42] Speaker 03: The posture of the case looks very different. [00:16:44] Speaker 03: Now, you think there's an easy explanation. [00:16:46] Speaker 03: They think there's an easy explanation that supports their position. [00:16:50] Speaker 03: We're not in a position to weigh in at this point. [00:16:53] Speaker 01: I, you know, and I, again, what I would suggest, what I would say is, obviously, if the court is that, believes that it's not right for decision because of the Administrative Leave Act, it's best to send it back to the authority to decide in the first instance. [00:17:06] Speaker 01: I mean, we agree with that basic principle, rather than decide it and apply the Administrative Leave Act. [00:17:11] Speaker 01: the Court of Appeals level. [00:17:13] Speaker 01: The authority should get the first crack on it. [00:17:15] Speaker 01: I think at this point the authority was, there was not consensus to reconsider the case, given that it had already been before the Court when the Administrative Leave Act was passed. [00:17:25] Speaker 01: It's our job to help them reach consensus. [00:17:27] Speaker 01: And we appreciate it, Your Honor. [00:17:29] Speaker 01: I do think on the merits of the case, if the Court were to reach it, the authority's opinion is very straightforward in that [00:17:36] Speaker 01: We have a 1986 opinion that does address this issue, and there is no subsequent OPM guidance or regulation that even touches it. [00:17:43] Speaker 01: So the authority was reasonable, given the case that was presented to it in 2015 or 2016, to conclude that there was no current prohibition or conflict with existing regulation or law. [00:17:57] Speaker 04: I'll just ask you the same question I maybe undiplomatically asked the other side. [00:18:01] Speaker 04: You don't have anything more to say than what you said in your briefs with respect to the merits, do you? [00:18:06] Speaker 01: I think the timeline of the various documents in this case is dispositive on the merits and that the authority decided this case and that it's National Border Patrol Council case in 1986. [00:18:18] Speaker 01: And for 31 years, OPM has been silent until it decided to represent DHS in this case. [00:18:24] Speaker 01: And I think that makes it very plain why the authority reached the decision it did. [00:18:30] Speaker 03: Mr. Lucy, you see he did the same thing you did. [00:18:32] Speaker 03: I have nothing more to say but I wanted to say why I should win. [00:18:34] Speaker 03: You want to get it in, right? [00:18:36] Speaker 03: You're right. [00:18:38] Speaker 04: Thank you. [00:18:38] Speaker 04: We know you each want to win. [00:18:39] Speaker 04: We got that part. [00:18:40] Speaker 04: I'm sorry? [00:18:40] Speaker 04: We know you. [00:18:40] Speaker 04: We would each like to win. [00:18:41] Speaker 04: We understand. [00:18:42] Speaker 04: All right. [00:18:44] Speaker 04: I let you have more time if you want. [00:18:45] Speaker 04: Do you have anything more to say? [00:18:48] Speaker 02: Your Honor, all I would add is that if you are remanding the case, we ask that you vacate the authority's judgment before you do so. [00:18:54] Speaker 02: We don't think you could remand while leaving in place the opinion before you. [00:18:58] Speaker 04: And why is that? [00:19:00] Speaker 02: Only because we don't think that there might be a chenery problem, I guess, is what I'm trying to get at. [00:19:11] Speaker 04: Often when there is a chenery problem, we send it back if we think the agency might have [00:19:16] Speaker 04: another explanation under our allied signal rule, we don't vacate. [00:19:22] Speaker 04: We usually only vacate if we think there's no way they can reach the same result. [00:19:27] Speaker 04: And neither side seems to know whether there's a way here. [00:19:30] Speaker 04: So I'm not sure that vacatur is really compelled. [00:19:36] Speaker 02: I understand, Your Honor. [00:19:37] Speaker 02: I believe that OPM's view would be that they couldn't reach, well, they would have to reach OPM's interpretation of OPM's regulations. [00:19:45] Speaker 03: That's the only reason why I raise it, but I don't think... Why, are you concerned that unless we vacate, this would somehow find its way to an impasse panel and you could lose? [00:19:53] Speaker 02: No, Your Honor, I think the concern is that the FLRA's opinion here has been cited by arbitrators in other cases, such as the grievance we cited in our blue brief. [00:20:02] Speaker 03: And so without vacating that determination, we think arbitrators will continue to- Yeah, but if the court were to issue a decision that this matter is on hold now, insofar as the ultimate decision, those arbitrators could be informed, right? [00:20:14] Speaker 04: I think that's appropriate, Your Honor, yes. [00:20:16] Speaker 04: Okay. [00:20:17] Speaker 04: Further questions? [00:20:18] Speaker 04: Thank you. [00:20:19] Speaker 04: Thank you very much. [00:20:19] Speaker 04: We'll take the matter under submission.