[00:00:07] Speaker ?:
I call it Education Association.

[00:01:06] Speaker 01:
Good morning.

[00:01:07] Speaker 01:
May it please the court?

[00:01:08] Speaker 01:
My name is William Freeman.

[00:01:09] Speaker 01:
I represent the Federal Education Association.

[00:01:13] Speaker 01:
In this case, I would like to reserve two minutes for rebuttal if possible.

[00:01:18] Speaker 01:
I represent 4,000 federal teachers who teach at overseas military-dependent schools worldwide, mostly in Europe and the Pacific.

[00:01:31] Speaker 01:
Their pay system has to be among the most

[00:01:35] Speaker 01:
complicated and secretive on earth.

[00:01:40] Speaker 01:
The great majority of them are paid a different amount of pay every two weeks.

[00:01:45] Speaker 01:
At any given time, we have at least a thousand of those teachers with pay problems.

[00:01:53] Speaker 01:
Why?

[00:01:53] Speaker 01:
Because they don't really understand why they're paid different amounts, how much they're paid, and they can't

[00:02:03] Speaker 01:
determine whether something is wrong until sometimes years go by and then it's so compound that the pay problems are so complex that it takes years and years for me to straighten out.

[00:02:18] Speaker 01:
Right now we have a 10-year backlog of grievances for pay.

[00:02:24] Speaker 01:
This case is about enforcing arbitrator brimps

[00:02:27] Speaker 01:
Daniel Brant's award from 2003 that ordered the Department of Defense education activity to fully explain every paycheck every two weeks.

[00:02:43] Speaker 01:
He understood that that's how you solve this problem.

[00:02:45] Speaker 01:
You can't litigate your way out of 1,000 pay problems with a 10-year backlog.

[00:02:53] Speaker 01:
For the last 15 years, Arbitrator Brant

[00:02:57] Speaker 01:
the FDA, and even the FRA in 2004 have been doing our best to enforce this award.

[00:03:08] Speaker 01:
Last year, a majority of the Trump-appointed FRA arbitrarily brought all of these efforts to an end.

[00:03:16] Speaker 01:
And we are here to seek a decree from you modifying and, more importantly, enforcing

[00:03:26] Speaker 01:
that order from the FRA.

[00:03:28] Speaker 01:
And if I could refer you, it's a very, very important statute, it's critical in this case, 5 USC 7123A and C, and this is at the back, actually, of the Respondents' Brief, at the statutory addendum.

[00:03:49] Speaker 01:
And the pages are not numbered, but the 5 U.S.C.

[00:03:54] Speaker 01:
7123 actually begins on the third from the last page.

[00:04:01] Speaker 01:
It provides that any person aggrieved by a final order of the authority can bring this matter to you.

[00:04:09] Speaker 01:
And that's why we're here.

[00:04:11] Speaker 02:
I just think that you have a limited amount of time and I think you should spend your time on the timing question.

[00:04:16] Speaker 02:
I'm sorry, sir?

[00:04:17] Speaker 02:
You need to spend your time on the timing question why this case is... The timing question.

[00:04:22] Speaker 01:
Yes.

[00:04:25] Speaker 01:
You're asking the first issue is whether we were timing.

[00:04:28] Speaker 01:
That's right.

[00:04:29] Speaker 01:
Okay.

[00:04:33] Speaker 01:
The statute states that if you can find substantial evidence

[00:04:37] Speaker 01:
to support what the FLRA found below.

[00:04:39] Speaker 01:
We lose.

[00:04:41] Speaker 01:
It's that simple.

[00:04:43] Speaker 01:
Now, that substantial evidence is based on the record as a whole, and there was an extensive record here.

[00:04:50] Speaker 01:
But you really need look no further than the May 2010 letter that DoDEA sent to Arbitrator Brant and FEA, because that's the only evidence

[00:05:01] Speaker 01:
that the Trump majority relied upon, or even discussed.

[00:05:05] Speaker 01:
Now, that's a separate matter, but that's really as far as you need to look.

[00:05:09] Speaker 03:
Can you do us a favor and not politicize your references to the authority?

[00:05:14] Speaker 01:
I'm sorry?

[00:05:15] Speaker 03:
Please don't politicize your references to the authority.

[00:05:18] Speaker 01:
I'm sorry.

[00:05:19] Speaker 01:
I lost some of my hearing in the war.

[00:05:21] Speaker 02:
What she's saying is you should just refer to the majority of the FLRA and not characterize what it is.

[00:05:29] Speaker 03:
Never mind.

[00:05:30] Speaker 03:
Never mind.

[00:05:31] Speaker 03:
You were referring to the Trump majority in your briefing.

[00:05:34] Speaker 03:
You cast aspersions on the neutrality of these decision makers based on the president who appointed them.

[00:05:40] Speaker 03:
And I was asking you to refrain from doing that.

[00:05:45] Speaker 01:
So the authority is appointed by the current administration.

[00:05:52] Speaker 01:
Two members are from the Republicans.

[00:05:54] Speaker 03:
We're interested in your views on the timing, on the timing question.

[00:05:57] Speaker 03:
Why was it timely, given that in this memo that you pointed us to, the May 2011 letter, there was an attachment, and the attachment seemed to say on the part of, is it DFAS, there are certain issues that, there are certain problems with the pay stubs that you've identified that will not be fixable, and that was as early as 2011.

[00:06:21] Speaker 03:
And the question is, given that you were on notice as of 2011 that there were problems that weren't going to be fixed, didn't the unfair labor practice charge have to be filed within six months of that?

[00:06:34] Speaker 01:
All right, please, you should not be distracted by any deflection toward DFAS.

[00:06:40] Speaker 01:
Arbitrary, Arbitrary did not order DFAS to do anything.

[00:06:44] Speaker 01:
He had no authority to order DFAS to do anything.

[00:06:47] Speaker 01:
He only ordered the deal.

[00:06:49] Speaker 01:
The smart LES in DFAS was really Dodia's idea.

[00:06:54] Speaker 01:
Dodia saw a way, hey, let's just let DFAS handle this.

[00:06:58] Speaker 01:
As it turns out, we find out in 2015 that DFAS really didn't want to handle that.

[00:07:05] Speaker 01:
But if you look at the letter that we got, it actually misled us.

[00:07:13] Speaker 01:
If you read ALJ Pearson's decision,

[00:07:16] Speaker 01:
He sort of sugar-coated this.

[00:07:18] Speaker 01:
He said, well, you know, there was a cover letter for this that went from DFAS to DoDEA that said, hey, we're not bound by this.

[00:07:27] Speaker 01:
You shouldn't even hide this.

[00:07:28] Speaker 01:
You can't bring us in on this.

[00:07:32] Speaker 01:
More important, you know, I can understand DoDEA not sharing that information with us.

[00:07:36] Speaker 01:
But what I can understand is when they forwarded the information paper written by DFAS,

[00:07:43] Speaker 01:
They deleted the disclaimer at the top of that page, where DFAS essentially said the same thing.

[00:07:50] Speaker 01:
So as far as Arbitrator Brent and FDA knew, DFAS was fully on board to volunteer to help.

[00:07:59] Speaker 01:
with what they could do.

[00:08:00] Speaker 01:
And this is a very important concept.

[00:08:02] Speaker 01:
If you look at the information paper, there are certain things that ZFAS said they cannot do because they don't have the database.

[00:08:10] Speaker 01:
Well, guess what?

[00:08:11] Speaker 01:
DoDEA does have the database.

[00:08:13] Speaker 01:
The rest of this information, DoDEA had access to.

[00:08:16] Speaker 01:
This information is not created.

[00:08:19] Speaker 01:
It's out there.

[00:08:21] Speaker 01:
It's what the payment is based upon.

[00:08:22] Speaker 00:
Let me interrupt you.

[00:08:23] Speaker 00:
There was a request that was made

[00:08:27] Speaker 00:
for modifications to be made to the, I guess, the SMART LES system and for information to be shared.

[00:08:36] Speaker 00:
And there was testimony that the ALJ heard about that.

[00:08:40] Speaker 00:
And there was an email that in minutes that were introduced into evidence where basically there was a request made to make modifications

[00:08:50] Speaker 00:
or to seek modifications and that request was approved I think around like the time period of October 2010, etc.

[00:09:00] Speaker 00:
Would those requests, if they had all been approved and implemented, fully complied with Arbitrary or Brent's decision?

[00:09:11] Speaker 01:
They would have complied with the parts that DFAS

[00:09:14] Speaker 01:
could help out with.

[00:09:16] Speaker 01:
They would not have complied that only DODIA has access to.

[00:09:19] Speaker 01:
Now, the most important thing to consider, you brought up the request, it was approved.

[00:09:24] Speaker 01:
It was approved six months after I was supposed to file a ULP.

[00:09:30] Speaker 01:
So, you know, I submit to you that if I had filed a ULP at that time, I would have been summarily dismissed because I was premature.

[00:09:42] Speaker 01:
More importantly, Arbitrator Brent had reserved jurisdiction, retained jurisdiction, and he was actively working on trying to figure this out.

[00:09:51] Speaker 01:
The FRA wasn't going to get involved.

[00:09:53] Speaker 01:
They were going to dismiss me.

[00:09:58] Speaker 03:
So they were really even accepting that the letter might have

[00:10:04] Speaker 03:
put you on notice that the parts that DFAS could deal with might not be dealt with by DFAS.

[00:10:12] Speaker 03:
There were other aspects that couldn't have been dealt with by DFAS that that letter did not speak to.

[00:10:19] Speaker 01:
That's correct.

[00:10:21] Speaker 03:
And or if DFAS can't do it, the part that Dodia thought DFAS might do still remained the responsibility of Dodia unless and until

[00:10:33] Speaker 03:
It said, we can't do this.

[00:10:35] Speaker 03:
And it didn't say.

[00:10:36] Speaker 01:
I've been doing this for 20 years.

[00:10:37] Speaker 01:
I knew that DoDia had access to all that information.

[00:10:42] Speaker 01:
And I think if you read between the lines, and at even some points, it says that DFAS says that it's DoDia who has access.

[00:10:50] Speaker 01:
But remember, DFAS is the bank.

[00:10:53] Speaker 01:
That's all they do.

[00:10:55] Speaker 01:
DoDia writes the checks.

[00:10:57] Speaker 01:
they calculate what should be paid and how it should be paid.

[00:11:02] Speaker 01:
They just forward certain information to DFAS, only the information they need to pay someone.

[00:11:08] Speaker 01:
They don't tell DFAS well how we acted on this application or what, you know, a lot of information because there's no need to do that.

[00:11:21] Speaker 01:
I think a very

[00:11:22] Speaker 01:
I referred you to this statute, and I think the most controversial part of this case is, what are we going to do?

[00:11:28] Speaker 01:
I think it's very clear that FEA was timely.

[00:11:31] Speaker 01:
I think Judge Pearson and Member DuVester did a great job of explaining that.

[00:11:37] Speaker 01:
I have a lot more to say, but I don't think it's necessary.

[00:11:40] Speaker 01:
The most controversial part is, what are we going to do about it?

[00:11:44] Speaker 01:
Now, normally, in normal times,

[00:11:48] Speaker 01:
it would be the FRA that would be here and standing in front of you trying to enforce this award.

[00:11:57] Speaker 01:
But they didn't do that.

[00:12:00] Speaker 01:
So we're here.

[00:12:02] Speaker 01:
And if you look at the statute, it says that you have complete jurisdiction over this case now.

[00:12:10] Speaker 01:
You can enforce this award how you see fit.

[00:12:14] Speaker 01:
And it also incorporates

[00:12:17] Speaker 01:
5 U.S.

[00:12:19] Speaker 01:
Code 706 of the Administrative Procedures Act.

[00:12:24] Speaker 01:
If you look at the first part of that, the very first paragraph says, the review in court shall compel agency action unreasonably delay or unlawfully deny.

[00:12:40] Speaker 01:
Now, the FRA

[00:12:45] Speaker 01:
It's very adamant that you should remand jurisdiction here.

[00:12:49] Speaker 01:
Ask yourselves why.

[00:12:52] Speaker 01:
I believe it's because they know this would put us in a catch-22.

[00:12:56] Speaker 01:
If you simply remanded this case, the FRA, you know, in normal times we could depend on an M to hold a ULP.

[00:13:05] Speaker 01:
After all, it's very clear that it was a ULP here.

[00:13:08] Speaker 01:
ALJ Pearson says, Arbitrator Britt held that it was timely in 2015

[00:13:13] Speaker 01:
And therefore, and Dodia did not appeal.

[00:13:17] Speaker 01:
End of story.

[00:13:18] Speaker 01:
Raise Judicata.

[00:13:19] Speaker 01:
He went on to explain, also just in case, that it was a ULP.

[00:13:24] Speaker 01:
There are no issues of fact for you to resolve here.

[00:13:29] Speaker 01:
It's all in the record.

[00:13:29] Speaker 01:
It's all very comprehensive.

[00:13:32] Speaker 01:
But the most important thing is, let's say we get a ULP on a man.

[00:13:37] Speaker 01:
It's the worst thing that could possibly happen, because

[00:13:42] Speaker 01:
We've got a ULP in our favor, but we cannot force compliance.

[00:13:48] Speaker 01:
Only the FRA can do it, and they don't have to do it.

[00:13:52] Speaker 01:
That's why I referred you to this statute.

[00:13:54] Speaker 01:
Section B of 7123 says the FRA may bring enforcement actions.

[00:14:01] Speaker 01:
I believe that the current majority of FRA has demonstrated we can't count on them to either hold a ULP or enforce it.

[00:14:09] Speaker 01:
59 to nothing.

[00:14:12] Speaker 01:
59 decisions in the first 94 cases.

[00:14:16] Speaker 01:
The decision makers below who rules for the union were overturned.

[00:14:23] Speaker 01:
Not a single decision maker who rules for the agency was overturned.

[00:14:30] Speaker 01:
This bias is on the public record.

[00:14:33] Speaker 01:
Don't take my word for it.

[00:14:35] Speaker 01:
It's there.

[00:14:37] Speaker 02:
We're over time.

[00:14:39] Speaker 02:
We're over time.

[00:14:41] Speaker 02:
Thank you.

[00:14:47] Speaker 04:
Good morning, Your Honors.

[00:14:49] Speaker 04:
My name is Rebecca Osborne, and together with Tabitha Macco, I represent the Federal Labor Relations Authority in this matter.

[00:14:55] Speaker 04:
I need to start by clarifying and correcting some of the statements that have been previously made.

[00:15:03] Speaker 04:
With respect to the May 2010 letter, if you look at it on SA 82 and with the attachments, it goes to SA 85.

[00:15:17] Speaker 04:
You will see that the attachments, the information smart LES paper, contains a listing of all, of certain points in which the smart LES system could and could not comply with the arbitrator's award.

[00:15:34] Speaker 02:
If you refer back to... Before we get to that, I know you're going to compare the two.

[00:15:38] Speaker 02:
I see.

[00:15:39] Speaker 02:
Before we get to that, I just want to be sure I understand the structure here.

[00:15:43] Speaker 02:
Your argument with respect to timing is...

[00:15:47] Speaker 02:
In light of our NTA case, that the agency expressly rejected its obligation

[00:15:55] Speaker 04:
Expressly notified, expressly notified the union.

[00:16:00] Speaker 02:
Expressly rejected, that's the test.

[00:16:02] Speaker 02:
Did they expressly reject it?

[00:16:04] Speaker 04:
They expressly said that they could not comply.

[00:16:07] Speaker 02:
Is that expressly, I'm reading both the NTA and your own decision at 621-146, adopting the NTA test, says we adopt the approach taken by the court, it may expressly reject its obligation under the award.

[00:16:22] Speaker 02:
Is that what you've done?

[00:16:23] Speaker 04:
It – yes, Your Honor, I would say that in the May 2010 letter it is expressly stated.

[00:16:29] Speaker 04:
In that letter?

[00:16:29] Speaker 04:
Yes, it is expressly stated.

[00:16:30] Speaker 02:
All right.

[00:16:30] Speaker 02:
So you're not doing the second possibility that a deadline was set and they missed a deadline?

[00:16:36] Speaker 04:
No, Your Honor.

[00:16:37] Speaker 04:
Okay.

[00:16:39] Speaker 04:
After the NTU case was decided by this court, the FLRA in IRS 61 FLRA 146-150 also articulated facts and circumstances.

[00:16:52] Speaker 02:
That's what I have in my hand.

[00:16:53] Speaker 04:
Yes, sir.

[00:16:54] Speaker 02:
But you're doing it based on the expressly rejects prom.

[00:16:59] Speaker 04:
Yes, and I believe also that the facts and circumstances of this case can be alternated.

[00:17:04] Speaker 02:
Well, that's how you decide.

[00:17:05] Speaker 02:
We recognize that there may be situations

[00:17:08] Speaker 02:
where there's been no express declaration, in such situations, the fact that each case, based upon what an award requires and what a party's actions have been followed.

[00:17:18] Speaker 02:
That's what you're referring to now.

[00:17:19] Speaker 04:
Yes, Your Honor.

[00:17:20] Speaker 02:
All right.

[00:17:20] Speaker 02:
The first express rejection that you pointed us to, maybe the only one, is the May 3, 2010 letter.

[00:17:26] Speaker 02:
Is that correct?

[00:17:27] Speaker 04:
Yes, Your Honor.

[00:17:28] Speaker 02:
Okay.

[00:17:28] Speaker 02:
So that letter, I happen to be looking at.

[00:17:31] Speaker 04:
Yes, Your Honor.

[00:17:32] Speaker 02:
I don't know which page of the exhibit it is.

[00:17:35] Speaker 04:
It's SA 62.

[00:17:36] Speaker 02:
Yeah, I'm not sure that's the one.

[00:17:37] Speaker 02:
But in any event, I have the letter in front of me.

[00:17:40] Speaker 02:
It says, our HR team conducted a phone conversation.

[00:17:44] Speaker 02:
We found that Smart LES and its current system indeed has most of the structure and functions you require.

[00:17:53] Speaker 02:
In fact, the blue highlighted items have most of the functions you require.

[00:17:57] Speaker 02:
The information paper is in the attached document, identifies most of your required changes.

[00:18:04] Speaker 02:
Does that sound like an express rejection of compliance when you say we've managed to make most of the changes you asked for and then explain the other ones?

[00:18:12] Speaker 04:
Well, Your Honor, if you look at the information paper that is attached to it, there are a number of places throughout, and that's listed both in our brief and in the authorities' decision,

[00:18:27] Speaker 04:
noting the places and things that Smart LES could not do.

[00:18:31] Speaker 02:
I understand, but you don't dispute the cover letter.

[00:18:34] Speaker 04:
I do not, Your Honor.

[00:18:35] Speaker 02:
Which says most of the things you asked for were given you.

[00:18:38] Speaker 04:
That's correct.

[00:18:38] Speaker 02:
Now which do you think is the strongest rejection in the information you have?

[00:18:44] Speaker 04:
Your Honor, if you

[00:18:48] Speaker 04:
You're asking me to choose between babies.

[00:18:50] Speaker 02:
Well, you can choose both babies if you want.

[00:18:52] Speaker 02:
I don't care.

[00:18:52] Speaker 02:
Take two babies.

[00:18:53] Speaker 04:
It's all right.

[00:18:54] Speaker 04:
Your Honor, I think that stating that it could not include some.

[00:19:00] Speaker 02:
Which paragraph?

[00:19:01] Speaker 02:
There are a number of paragraphs.

[00:19:02] Speaker 02:
One, two, which one?

[00:19:04] Speaker 04:
Yes, Your Honor.

[00:19:05] Speaker 04:
The number should be able to maintain.

[00:19:10] Speaker 04:
I apologize.

[00:19:16] Speaker 04:
that with respect to the pay lanes, I know that Smart LES could not.

[00:19:34] Speaker 04:
And the pay lanes, I believe, is number eight.

[00:19:37] Speaker 04:
With respect to the pay lanes, the Smart LES system could not specifically calculate

[00:19:46] Speaker 04:
where a person, which pay lane a person was in, in one year to the next, because it would not fully incorporate all.

[00:19:55] Speaker 02:
Yes, it says, right, I see.

[00:19:56] Speaker 02:
The years of service as a teacher, in particular pay lane is not maintained by the pay system.

[00:20:00] Speaker 02:
This information may be available on the DoDEA website.

[00:20:05] Speaker 04:
Correct.

[00:20:06] Speaker 02:
And does that, do you regard that as an express rejection

[00:20:12] Speaker 02:
I mean, I took it from the arbitrators' award that there was to be back and forth about which things were possible, which things weren't possible, and that's the way you treated it, isn't it?

[00:20:22] Speaker 04:
Yes, it is, Your Honor.

[00:20:23] Speaker 02:
So then this is just a statement that this one isn't completely possible, but you might be able to get the information on the GoDEA website.

[00:20:31] Speaker 04:
You might be able to get the information on the DOCIA website, but what the union had been asking for was that all of this be provided on LAS for the union members.

[00:20:46] Speaker 04:
And that couldn't be done.

[00:20:48] Speaker 02:
Well, is that an expressed rejection or just an explanation?

[00:20:53] Speaker 04:
Actually, it is an express rejection, Your Honor, because the agency doesn't have control over smart LES.

[00:21:02] Speaker 04:
It doesn't have control over making the changes necessary to the system in order to comply with the Arbitrator's Award.

[00:21:10] Speaker 04:
And one other thing that I think – But, Ms.

[00:21:11] Speaker 03:
Osborne, just a second.

[00:21:12] Speaker 03:
Doesn't that cut the other way in the sense that

[00:21:15] Speaker 03:
DoDEA is the party bound by the arbitration, not smart LES or DFAS.

[00:21:23] Speaker 03:
And so DFAS is saying what it can or can't do.

[00:21:26] Speaker 03:
And nowhere does the party then take that and say, hey, if they can't do it, we can't do it.

[00:21:32] Speaker 03:
Actually, the implication is we're still bound.

[00:21:34] Speaker 03:
We'll work with you.

[00:21:36] Speaker 03:
Maybe there's some alternative.

[00:21:38] Speaker 04:
Well, actually, that's not the way that this conversation worked out.

[00:21:44] Speaker 04:
First of all, one thing that I need to note is that the union took this as an express rejection.

[00:21:51] Speaker 02:
Before we get to that, let's just work on this one itself.

[00:21:55] Speaker 02:
What was your second baby?

[00:21:57] Speaker 04:
What was my second baby?

[00:21:59] Speaker 04:
If you were to look at, contains the, that,

[00:22:08] Speaker 04:
it would not be able to comply with

[00:22:18] Speaker 04:
It could not create a link to show post-allowances paid to... What paragraph number?

[00:22:23] Speaker 04:
I beg your pardon.

[00:22:24] Speaker 04:
Post-allowances would be paragraph two in response to that.

[00:22:28] Speaker 02:
Paragraph two?

[00:22:29] Speaker 04:
Yes.

[00:22:30] Speaker 04:
Would not be able to create a link to show post-allowances.

[00:22:35] Speaker 02:
Wait, I'm sorry.

[00:22:37] Speaker 02:
Post-allowances.

[00:22:37] Speaker 02:
I thought what it says... I'm reading DFAS comments.

[00:22:40] Speaker 04:
Yes.

[00:22:44] Speaker 02:
It says...

[00:22:45] Speaker 02:
This new release implemented a new interface, and it will provide the following information.

[00:22:51] Speaker 02:
However, until funding is obtained, the interface file cannot be, it doesn't say never, it just says until funding is obtained.

[00:22:59] Speaker 02:
That's not a rejection, is it?

[00:23:00] Speaker 04:
Well, it is a rejection, Your Honor, because as of the current time, and that would depend on third parties acting.

[00:23:08] Speaker 02:
Well, that may be, but the district court, the arbitrator didn't say

[00:23:13] Speaker 02:
You have to do something even if there's no money on earth that can pay for it.

[00:23:17] Speaker 02:
I mean, no one would interpret an arbitrator's award as requiring that.

[00:23:21] Speaker 02:
There has to be funding.

[00:23:22] Speaker 02:
It says until funding is obtained.

[00:23:23] Speaker 02:
It doesn't say we're not going to seek funding.

[00:23:25] Speaker 02:
It doesn't say we're never going to get funding.

[00:23:27] Speaker 04:
But compliance in this case, then, is placed on third parties who aren't party to the arbitration and have no incentive to assist the agency in attempting to comply.

[00:23:37] Speaker 04:
The truth of the matter is that the agency didn't have

[00:23:40] Speaker 04:
the ability to change its own payroll system.

[00:23:43] Speaker 04:
Until funding is obtained.

[00:23:46] Speaker 04:
Until funding is obtained, but you need a third party to say yes to that.

[00:23:50] Speaker 02:
It doesn't say here, we're never going to be able to give it to you.

[00:23:53] Speaker 02:
It just says until funding is obtained.

[00:23:55] Speaker 04:
But the funding would have to be obtained from third parties, Your Honor.

[00:23:59] Speaker 04:
And the third parties are not bound by the arbitrator's decision.

[00:24:01] Speaker 02:
Imagine an arbitrator ordered a pay increase for somebody.

[00:24:04] Speaker 02:
And the defense was only Congress can appropriate funds.

[00:24:07] Speaker 02:
We've learned that recently, only Congress.

[00:24:10] Speaker 02:
Yes.

[00:24:10] Speaker 02:
Does that mean the agency is in default?

[00:24:13] Speaker 02:
Because it depends on the constitutional requirement that only Congress can appropriate?

[00:24:18] Speaker 04:
Your Honor, in this case, yes, the agency was being held responsible and being asked to continue to attempt to comply with something that it could not comply with.

[00:24:30] Speaker 00:
Your Honor, if I could... What was the purpose of the language in the cover letter from the agency to the arbitrator that says that we have this information paper here

[00:24:45] Speaker 00:
that identifies most of the changes you've mentioned, as well as those changes currently being pursued by DFAS.

[00:24:54] Speaker 00:
I mean, you, your client, well, I guess it's not technically your client.

[00:25:06] Speaker 00:
But the agency here,

[00:25:10] Speaker 00:
identified this and then also brought to the arbitrator's attention that there were changes that were being requested by this third party.

[00:25:20] Speaker 00:
I mean, what's the relevance of bringing that to the, why bring that to the arbitrator's attention if the third party basically is irrelevant because they aren't a party to the proceeding?

[00:25:34] Speaker 04:
Well, the third party may seek those changes, and certainly the agency can ask the third party to make those changes, but the truth of the matter is that the agency has no control over that third party.

[00:25:48] Speaker 04:
And the continuation of this proceeding over the course of five years was basically waiting to see if the agency could convince third parties

[00:25:58] Speaker 04:
to make changes that needed to be made in order for the payroll system.

[00:26:02] Speaker 03:
So it's hard to see that as a rejection by the agency.

[00:26:06] Speaker 03:
I mean, internal emails, the record suggests that Dodia was still trying to comply with the award long after this May 2010 letter and August 2010 meeting.

[00:26:16] Speaker 03:
And if Dodia was acting as if compliance was still a possibility, how are we supposed to

[00:26:22] Speaker 03:
affirm an order that assumes that the employees are not

[00:26:29] Speaker 04:
Well, Your Honour, I think, first of all, the agency could not comply in May of 2010.

[00:26:35] Speaker 04:
But nobody told the employees that.

[00:26:38] Speaker 03:
Nobody said, look, you're barking up the wrong tree, we refuse, this can't be done.

[00:26:43] Speaker 03:
The party didn't say that.

[00:26:45] Speaker 04:
The party did say that in the attachments to the May 2010 letter, and also the union acknowledged.

[00:26:51] Speaker 02:
When was that?

[00:26:52] Speaker 02:
When did the union acknowledge?

[00:26:53] Speaker 04:
August of 2010, demonstrated to all individuals.

[00:26:57] Speaker 02:
That's essay 121, right?

[00:26:58] Speaker 04:
Yes, Your Honor.

[00:26:59] Speaker 02:
Okay, so in the paragraph before, the union witness says,

[00:27:08] Speaker 02:
After I figured out that it wasn't so smart, I scheduled an extensive implementation hearing, and DFAS actually attended, as far as I can recall, and they gave a demonstration of a smart LES.

[00:27:19] Speaker 02:
They were contending that it did comply with Arbitrator Rent's award.

[00:27:27] Speaker 04:
Yes, Your Honor.

[00:27:28] Speaker 02:
So was DFAS and DODIA saying that their smart LES did

[00:27:37] Speaker 02:
comply with the award.

[00:27:40] Speaker 04:
Obviously, the union didn't believe that.

[00:27:42] Speaker 02:
That's a different question.

[00:27:43] Speaker 02:
That's a different question.

[00:27:44] Speaker 02:
I'm asking, this requires, you have two different sides of this problem.

[00:27:48] Speaker 02:
One is, was there an express denial?

[00:27:50] Speaker 02:
And two, I think Judge Pillard was getting at the question, what did the union reasonably understand?

[00:27:57] Speaker 02:
That's a separate question from whether there was an express denial.

[00:28:01] Speaker 02:
So this meeting, when would this implementation hearing occur?

[00:28:05] Speaker 04:
in August of 2010.

[00:28:07] Speaker 02:
So then, at that time, notwithstanding what you told us about the May letter, the agency was still saying that they were complying.

[00:28:20] Speaker 04:
You can argue two things at the same time.

[00:28:22] Speaker 04:
One is a notification that we cannot fully comply with the award.

[00:28:27] Speaker 02:
But that's not what this says.

[00:28:28] Speaker 02:
It says, in effect, this is a

[00:28:33] Speaker 02:
statement about what DFAS was saying, they were contending that it did comply.

[00:28:39] Speaker 04:
Well, Your Honor, obviously, the arbitrator and the union did not believe that was the case, and therefore, they had notice at that time also stated.

[00:28:47] Speaker 02:
That's not notice.

[00:28:48] Speaker 02:
That may be they've misconstrued, but that's not notice.

[00:28:51] Speaker 02:
And then on 136, you have Mr. Carver's testimony, is that right?

[00:28:56] Speaker 04:
Yes, Your Honor.

[00:28:57] Speaker 02:
And he's Doe Dia also?

[00:28:59] Speaker 04:
No, he, yes, he is Doe Dia.

[00:29:01] Speaker 04:
Yes, Your Honor.

[00:29:01] Speaker 02:
Okay, and he says during that, and he's referring to the same meeting, right?

[00:29:05] Speaker 04:
Mm-hmm.

[00:29:05] Speaker 02:
During that presentation, Ms.

[00:29:07] Speaker 02:
Dieffa Wells, who's from DFAS, right?

[00:29:09] Speaker 04:
Yes, Your Honor.

[00:29:10] Speaker 02:
Reiterated that pretty much anything we wanted, we could do in the SMART LES, realizing there's a cost associate and still has to get approval.

[00:29:19] Speaker 02:
And volunteered to help us write requirements document to send forward to the change control.

[00:29:24] Speaker 04:
Well, the problem with that is that the cost involved could be significant and the approval would come from third parties who are not subject to the arbitration.

[00:29:32] Speaker 02:
Did anyone tell from the agency, say to either the arbitrator or the union, we are never going to get funding for this?

[00:29:45] Speaker 04:
They did not say that they were never going to have funding for it, but certainly the union and the arbitrator knew that the agency was attempting to get another third party who was not subject to the arbitration to approve something.

[00:30:01] Speaker 04:
It had no incentive to do that.

[00:30:02] Speaker 02:
Let me ask you to focus on one more document.

[00:30:05] Speaker 02:
This is the May 13, 2015 letter.

[00:30:08] Speaker 02:
SA 54.

[00:30:09] Speaker 04:
Yes, Your Honor.

[00:30:11] Speaker 02:
This is the final notification where they want, where the agency wants out of jurisdiction, right?

[00:30:17] Speaker 04:
Yes, Your Honor.

[00:30:17] Speaker 02:
And it says at the end in the third paragraph, the agency is requesting that you consider the totality of the respective agency's efforts and that you accept the upgrades as meeting the spirit and intent of your order concerning the LES.

[00:30:36] Speaker 02:
Doesn't that sound like the agency is saying we have complied with the order?

[00:30:42] Speaker 04:
Yes, but Your Honor, it doesn't have to be one or the other.

[00:30:46] Speaker 04:
You can say we have substantially complied, but we cannot comply with the other portions.

[00:30:51] Speaker 04:
It doesn't have to be an either or.

[00:30:54] Speaker 04:
And that's what the agency had been saying all along.

[00:30:57] Speaker 02:
What they're saying is they're meeting the intent of the order.

[00:31:00] Speaker 02:
So if the intent of the order is only substantial compliance up to what's possible,

[00:31:05] Speaker 02:
then until that happens, there's not a refusal to comply.

[00:31:10] Speaker 04:
Well, there is a refusal to comply in that the agency could not meet some of the specific requirements that have been placed before it.

[00:31:21] Speaker 04:
One thing that I would like

[00:31:24] Speaker 04:
to point out to Your Honors is even if you do not believe that the authority's decision was supported by substantial evidence with respect to the express rejection, then there is substantial evidence in the record and it is articulated in the decision that the facts and circumstances of this case

[00:31:48] Speaker 04:
should have indicated to the Union, far in advance of October 2015, that the agency was not going to be able to comply.

[00:31:56] Speaker 04:
And we would respectfully request that the petition for review be denied on that ground.

[00:32:08] Speaker 04:
One last thing we ask that you reject in its entirety the petitioner's request that this court maintain jurisdiction over this case for an extended period of time.

[00:32:26] Speaker 04:
There is no basis in law for retention of jurisdiction in these cases.

[00:32:31] Speaker 04:
And quite frankly, the allegations that the union has made with respect to the members of the authority are frivolous.

[00:32:39] Speaker 04:
There is nothing in basis.

[00:32:42] Speaker 03:
They'll get a fair shake when they go back.

[00:32:44] Speaker 03:
And if they disagree, if the authority doesn't press their claim, for example, what recourse?

[00:32:54] Speaker 03:
Any?

[00:32:54] Speaker 03:
reviewable at all?

[00:32:56] Speaker 04:
If this course remands the case to the authority for further determinations, a further determination is made, then the recourse is to come back to the DC Circuit, which is the way that the system is supposed to work.

[00:33:11] Speaker 03:
So I think that opposing counsel was speculating that send it back, there's an unfair labor practice, but the authority doesn't wanna press it to this court.

[00:33:23] Speaker 03:
If that were to be decided, that the agency doesn't comply, then is it in your hands, unreviewable whether to take any further action?

[00:33:36] Speaker 04:
Your Honor, if this court renders a decision, the decision would go back to the authority, and the authority has the responsibility to act on it.

[00:33:46] Speaker 04:
And there has been nothing to indicate that the authority would not fulfill its obligations under the statute.

[00:33:52] Speaker 02:
And presumably if it doesn't act, they can appeal.

[00:33:56] Speaker 02:
Right.

[00:33:56] Speaker 02:
And if the failure to act is arbitrary and capricious, then we could force

[00:34:01] Speaker 02:
And if it is supported by substantial evidence, then we don't.

[00:34:06] Speaker 04:
That's correct, Your Honor.

[00:34:07] Speaker 02:
Okay.

[00:34:08] Speaker 02:
Okay?

[00:34:09] Speaker 02:
Thank you.

[00:34:10] Speaker 02:
Is there any time left?

[00:34:13] Speaker 02:
All right.

[00:34:13] Speaker 02:
There's no time remaining.

[00:34:14] Speaker 02:
I'll give you another two minutes, but I ask you, I'll give you another two minutes, but please restrict yourself to the question of whether the appeal is timely.

[00:34:25] Speaker 01:
Just very briefly.

[00:34:28] Speaker 01:
I spent 20 years in the Air Force.

[00:34:30] Speaker 01:
I know how the Department of Defense works.

[00:34:32] Speaker 01:
You have to remember that both the DEA and DFAS are in the Department of Defense.

[00:34:38] Speaker 01:
If you order compliance, especially if you compel on a course with 7061, the DEA is going to go up the chain in the Department of Defense until they find somebody

[00:34:52] Speaker 01:
is going to force DFAS to help them comply with this award, to do whatever DFAS can do.

[00:35:01] Speaker 01:
And they're going to provide the funding for DoDEA to do the rest, everything they can do.

[00:35:08] Speaker 01:
And I'd like to just finally say the stronger your order, the more likely that is going to happen.

[00:35:16] Speaker 02:
All right, we'll take a matter on the commission.

[00:35:17] Speaker 02:
Thank you all.