[00:00:00] Speaker 06:
Case number 22-1028, National Association of Immigration Judges, International Federation of Professional and Technical Engineers, Judicial Council to Petitioner versus Federal Labor Relations Authority.

[00:00:15] Speaker 06:
Mr. Garcia for the petitioner.

[00:00:17] Speaker 06:
Ms.

[00:00:17] Speaker 06:
Osborne for the respondent.

[00:00:20] Speaker 01:
Good morning, Council.

[00:00:21] Speaker 01:
Mr. Garcia, please proceed when you're ready.

[00:00:25] Speaker 05:
Good morning, Your Honors.

[00:00:26] Speaker 05:
May it please the Court and Council.

[00:00:28] Speaker 05:
My name is Javier Garcia, and I represent the National Association of Immigration Judges.

[00:00:33] Speaker 05:
Acting in haste to deprive immigration judges of their right to belong to a union, the majority has cobbled together a decision that ignores authority precedent covering both the review of unit certifications and the scope of the management official exclusion.

[00:00:48] Speaker 05:
This is a direct quote from now Chairman DeVester regarding the authority's 2020 decision.

[00:00:53] Speaker 05:
The statement underpins the repeated due process violations committed by the authority.

[00:00:59] Speaker 05:
Unions before this court today ask that the court vacate the authority's 2020 decision decertifying the union in a subsequent 2022 decision, denying a motion to reconsider, and then remand this case back to the authority so it can issue an opinion consistent with due process.

[00:01:15] Speaker 05:
In overruling the regional director's detailed and methodical 25-page analysis, the authority's 2020 and 2022 decisions are

[00:01:24] Speaker 05:
Now Chairman DeBester summarily stated, quote, the antithesis reason decision-making, unquote.

[00:01:30] Speaker 05:
Both opinions fail to grapple with any of the regional director's factual or legal findings.

[00:01:35] Speaker 05:
And at no point does the authority hold that the regional director aired in any way.

[00:01:39] Speaker 01:
So there's some threshold questions about whether this case is probably before us based on the way it came up.

[00:01:44] Speaker 01:
And it's undisputed, I think, that

[00:01:48] Speaker 01:
At the time that you brought your petition for review, there was a motion for reconsideration pending before the agency.

[00:01:56] Speaker 01:
And why doesn't that just run squarely into the general doctrine that when there's a motion for reconsideration pending, that bringing up a petition for review is incurably premature?

[00:02:08] Speaker 05:
That motion to reconsider specifically asks for a motion to reconsider UIR or

[00:02:12] Speaker 05:
your 22, that's already 22 decision.

[00:02:15] Speaker 01:
Would you mind just raising the Mike's just a little yes.

[00:02:17] Speaker 05:
Yeah, that's a little louder.

[00:02:21] Speaker 05:
That motion to reconsider, which is filed after the authorities 2022 decision was asking for reconsideration of 2022 decision.

[00:02:32] Speaker 05:
Right.

[00:02:32] Speaker 05:
And so at that point, we hold that your 20 or your 20

[00:02:36] Speaker 05:
was final because we were not asking for reconsideration at that point in 2020.

[00:02:40] Speaker 05:
And actually in the authority's 2022 decision, it even dismissed the union's motion for reconsideration.

[00:02:48] Speaker 05:
And so at that point, what we said in our briefing as well was if it was incurable premature, it would only be with respect to the authority's 2022 decision.

[00:02:57] Speaker 01:
But what would be the sense of splicing it that way?

[00:02:59] Speaker 01:
Because the reason we have the incurable prematurity doctrine is that something might happen

[00:03:06] Speaker 01:
in the still ongoing proceedings before the agency that would affect our review, including rendering it entirely unnecessary.

[00:03:15] Speaker 01:
That's going to be the case even if, I'm not sure it makes sense to splice it in the way that you are, but even if you thought that it could, still have the same problem because whatever was pending before the agency could still have the effect of rendering our review unnecessary.

[00:03:31] Speaker 05:
Our understanding is that they wouldn't, because we were asking for reconsideration of the 2022 decision, which was, again, just analyzing a reconsideration already, that whatever effect or decision taken by the authority would not have affected the 2020 decision, which is the primary decision we're driving.

[00:03:49] Speaker 01:
How could that be?

[00:03:50] Speaker 01:
Because the 2020 decision, then we would just be addressing a decision that would have been superseded in the agency itself by whatever it did with the 2022 decision.

[00:04:00] Speaker 05:
Because the 2020 decision, in our view, is an actual appropriate unit determination, and then the 2022 decision is whether or not they should reconsider that.

[00:04:08] Speaker 05:
Our further reconsideration after that would then be whether or not they would properly look to reconsider the original opinion.

[00:04:15] Speaker 01:
But that had no effect on whether or not they were going to reconsider.

[00:04:17] Speaker 01:
Well, suppose they granted reconsideration, and they actually gave you everything you asked for.

[00:04:22] Speaker 01:
then we would still be looking at a decision that had already been reconsidered and as to which you'd already gotten the grant of relief?

[00:04:29] Speaker 05:
Well, we would ask for a further briefing in terms of we had a pending motion to stay and remand for further fact-finding that never got ruled on.

[00:04:39] Speaker 05:
And so I don't know if the court would have given us everything exactly, would have helped effectuate or helped

[00:04:47] Speaker 03:
This problem arose in the federal courts, not in the context of administrative law, but in the context of federal civil procedure and federal rules of appellate procedure.

[00:04:58] Speaker 03:
And it created what the advisory committee called a dire trap for the unwary.

[00:05:07] Speaker 03:
And so the federal rules of civil procedure of appellate procedure now provide to solve the problem that Judge Sherna Bosson mentioned.

[00:05:17] Speaker 03:
now provide that if the motion for reconsideration is denied, that is the point in which the premature notice of appeal ripens.

[00:05:28] Speaker 03:
And so nothing goes forward until the motion for reconsideration is heard.

[00:05:34] Speaker 03:
Now, I don't know where this doctrine came from for sure in our court, this incurably premature, but it looks like it came from

[00:05:44] Speaker 03:
opinion about 1985 before any of the federal rules abolished that.

[00:05:53] Speaker 03:
And the other thing I don't know is whether it's ever been applied in the FLRA context.

[00:05:58] Speaker 03:
Are you aware of it?

[00:06:00] Speaker 03:
That incurably premature?

[00:06:02] Speaker 03:
I am not aware of it.

[00:06:04] Speaker 03:
You can't find that in the judicial review provision

[00:06:09] Speaker 03:
You can't find anything of that sort in the judicial review provision for a FRA decision.

[00:06:17] Speaker 03:
So if you're a counsel and you're looking at it and you pull out whatever it is, 70 something three, is it?

[00:06:23] Speaker 03:
That's a 103, please.

[00:06:24] Speaker 03:
Yeah, yeah.

[00:06:25] Speaker 03:
You pull that out and you read it and you wouldn't have a clue that if you file a motion for reconsideration, you can't file a petition for a judicial review.

[00:06:39] Speaker 04:
Yeah, but aren't their timelines a time limit to follow your petition for review?

[00:06:45] Speaker 04:
Yes, there is a 60 day.

[00:06:47] Speaker 04:
So how is a petition for review filed in 2022 timely as to the order in 2020 that you say you're really seeking you?

[00:06:59] Speaker 05:
So we the petition.

[00:07:01] Speaker 05:
Well, the petition for a reconsideration motion on the authorities actions in 2022 are further extension

[00:07:07] Speaker 05:
of just the repeated due process violations that happened over the course of the three years of the underlying litigation.

[00:07:13] Speaker 05:
So that's why the motion to reconsider in 2022 is specifically asking to reconsider at the authority's 2022 opinion.

[00:07:21] Speaker 05:
Because if we had tried to link it back to 2020, it would be improper or untimely.

[00:07:26] Speaker 04:
But then that just proves that it's

[00:07:29] Speaker 04:
incurably premature under our precedent, because now you're saying that the argument that you're making for us today, which is that there are due process violations, are the arguments that you were making in your motion for reconsideration?

[00:07:44] Speaker 05:
Well, we were raising further due process violations to the court in our 2022 reconsideration, but those are rich, you know, there are underlying issues and violations that happen in 2020 that we think are properly before the score and are not subject to the incurable premature argument.

[00:07:59] Speaker 01:
But you didn't flag those.

[00:08:00] Speaker 01:
I mean, there's another issue here, which is whether you raised the arguments before the agency.

[00:08:05] Speaker 01:
And I don't know how you could have raised arguments about due process.

[00:08:09] Speaker 01:
These would be the initial decision, because I think the due process claims primarily relate to things that happened after the initial decision or in the consideration of the initial decision.

[00:08:17] Speaker 05:
So our November 17, 2020 motion to reconsider after the authority's 2020 decision flags

[00:08:23] Speaker 05:
The specific arguments about the lack of a reasoned opinion discusses the issue with the announcement of this new rule that winning parties have to file a pro-cross appeal on a winning decision.

[00:08:37] Speaker 05:
Those arguments are flagged in our November 17, 2020 briefing to the authority.

[00:08:42] Speaker 01:
Right, but even if we thought that those were due process arguments, and I think there's a question about that, but even if we thought that, that would be after the decision that you're saying that it's before us.

[00:08:51] Speaker 05:
That is after the first decision that is before you, after the authority's 2020 decision.

[00:08:55] Speaker 05:
Because up until that point, the authority had not announced this new prophylaxis rule.

[00:08:59] Speaker 05:
And up until that point, when the authority issued 2020, the regional director's decision was a controlling decision, which is a well-methodical 25-page analysis.

[00:09:09] Speaker 03:
So that's your extraordinary circumstance?

[00:09:12] Speaker 05:
Well, the extraordinary circumstance, Your Honor, would be the fact that the regional director

[00:09:16] Speaker 05:
took the time to analyze the actual day-to-day duties of an immigration judge, went through the criterion as to what a management official is, how it interplays with the immigration judge's duties.

[00:09:27] Speaker 05:
And at the end of the day, it made the analysis that immigration judges at this day and time in 2020 are not management officials.

[00:09:35] Speaker 03:
The extraordinary- That's not what I was referring to.

[00:09:38] Speaker 03:
I was referring to the jurisdictional statute that prohibits a court

[00:09:44] Speaker 03:
from reviewing an objection that was not made before the agency except in the, except when there's extraordinary circumstances.

[00:09:55] Speaker 05:
I understand, Eric.

[00:09:56] Speaker 05:
So our argument is that we have made the same arguments to the authority multiple times since the November 17, 2020 motion and have repeatedly been raising this argument over the past two years.

[00:10:15] Speaker 05:
So to be clear, the regional director's decision really analyzes a lot of different issues and findings.

[00:10:24] Speaker 05:
For instance, whether the Board of Immigration Appeals continues to review and remand cases, how immigration judges implement immigration policy, and there's scores of others.

[00:10:32] Speaker 05:
But none of these are discussed in the authority's 2020 or 2022 decisions.

[00:10:36] Speaker 05:
The linchpin of the authority's 2020 decision comes down to one issue, and the authority explains, quote, arguing immigration judges' decisions do not influence agency policy while board members' decisions do is akin to arguing that district court decisions do not shape the law while appellate court decisions do.

[00:10:53] Speaker 05:
Such a distinction, based on what appears to be solely reviewability of decisions, is nonsensical, end quote.

[00:10:58] Speaker 01:
This is the sole explanation.

[00:11:00] Speaker 01:
I think we have, um, the merits of your process argument for your briefing.

[00:11:04] Speaker 01:
And I just want to make sure you have reserved some time for a bottle and we'll, we'll, we will give you that time if our colleagues don't have any additional questions for you at this time.

[00:11:13] Speaker 01:
Thank you.

[00:11:16] Speaker 07:
So as one will hear from you now, please record, um, the immigration judges petition for review denied its entirety.

[00:11:27] Speaker 07:
Um, with respect to,

[00:11:29] Speaker 07:
the constitutional claim.

[00:11:31] Speaker 07:
The FLRA's assessment of the union certification petition satisfied any due process rights that the union had with respect to the claims.

[00:11:42] Speaker 03:
What exactly is your understanding of the due process claim that's been raised?

[00:11:49] Speaker 07:
There are two due process claims, and they were not raised by the union until the second motion for reconsideration was still pending when

[00:11:59] Speaker 07:
for review of the file.

[00:12:01] Speaker 07:
And just to clarify, we had also raised the premature, incurably premature argument when the union filed emergency motion for today.

[00:12:13] Speaker 03:
So they needed it.

[00:12:14] Speaker 03:
What are the two due process claims?

[00:12:17] Speaker 07:
The substantive due process and procedural due process.

[00:12:22] Speaker 03:
And we argue.

[00:12:23] Speaker 03:
Yeah, but that doesn't, what is the procedural due process?

[00:12:26] Speaker 07:
The procedural due process claim they have argued.

[00:12:29] Speaker 07:
They have a liberty interest that was violated by the authority, first because they had not had the opportunity to assert that there had not been a substantial change to the unit.

[00:12:46] Speaker 07:
And that's simply not true.

[00:12:48] Speaker 07:
They could have raised that issue.

[00:12:50] Speaker 07:
They lost the issue of substantial change before the regional director.

[00:12:55] Speaker 07:
The regional director found that there had been a substantial change in the unit.

[00:13:00] Speaker 07:
but the regional director found it didn't alter the character of the unit.

[00:13:06] Speaker 07:
When applications for review were made to the regional director's decision, the agency filed an application for review, but the union did not.

[00:13:19] Speaker 07:
And so the authority properly held under the regulation that the issue of substantial change

[00:13:29] Speaker 07:
And that's because it was waived, and the union should have brought that claim under Section 22, 2422.

[00:13:37] Speaker 07:
They also claimed that the authority violated due process rights because there had been a rush to have a dissenting member finalize a draft dissent decision.

[00:13:56] Speaker 07:
And that's actually not accurate, because the decision had actually been in the process of being drafted.

[00:14:04] Speaker 07:
And the majority had simply stated that they were intending to issue the decision within 21 days and ask the dissenting member to finalize the decision within 21 days.

[00:14:18] Speaker 07:
They've also said that the case was not moved

[00:14:25] Speaker 07:
at the time that the authorities render the second decision denying motion for reconsideration.

[00:14:32] Speaker 07:
And they say that's because the parties have entered into a settlement agreement.

[00:14:37] Speaker 07:
But the problem is that the statute gives to the authority alone the ability to determine an appropriate unit.

[00:14:46] Speaker 07:
And it's not something that parties can settle.

[00:14:49] Speaker 07:
And there is authority case law going back to 1990 that says the fundamental principle

[00:14:55] Speaker 07:
of the statute that parties cannot negotiate over the unit status of employees.

[00:15:00] Speaker 03:
I mean, the idea is that the employer then provokes an unfair labor practice charge and refuses to bargain.

[00:15:09] Speaker 03:
And one of the defenses is an inappropriate unit, right?

[00:15:16] Speaker 03:
How can this union ever provoke an unfair labor practice charge?

[00:15:20] Speaker 07:
Well, it could have actually provoked an unfair labor practice charge because it had a valid live, um, unfair lack, unfair labor practice complaint that was being prosecuted through the office of general counsel.

[00:15:35] Speaker 03:
There can't be a refusal to bargain if the union is not recognized.

[00:15:41] Speaker 07:
Well, but there, there is,

[00:15:45] Speaker 07:
An individual would have... Oh, an individual, yes, an individual.

[00:15:49] Speaker 03:
I saw that in your briefing.

[00:15:50] Speaker 03:
That's not the union.

[00:15:52] Speaker 07:
But the union itself had live complaints as of December of last year, and those complaints would have moved forward.

[00:16:02] Speaker 02:
But the union chose... I don't see how.

[00:16:04] Speaker 02:
I frankly don't see how.

[00:16:09] Speaker 07:
Well, Your Honor, those complaints were live, and if you look at the settlement agreement,

[00:16:14] Speaker 07:
the Office of General Counsel at that point, because the union had not yet been decertified.

[00:16:22] Speaker 03:
That's another question I had.

[00:16:24] Speaker 03:
I just want to make sure, in the National Labor Relations Board context, which you used rightly as an analogy, an individual or a union, or even an employer, cannot bring an unfair labor practice charge.

[00:16:40] Speaker 03:
That's up to the general counsel.

[00:16:42] Speaker 03:
And they can go to the General Counsel and request them to do that.

[00:16:49] Speaker 03:
Is that the same situation in the FORA?

[00:16:52] Speaker 03:
Yes.

[00:16:53] Speaker 07:
And in this case, the union had filed five separate charges.

[00:16:58] Speaker 07:
The Office of General Counsel consolidated those charges and issued a complaint.

[00:17:05] Speaker 07:
OK.

[00:17:05] Speaker 07:
So that's when I say that there was a live complaint as of December of last year.

[00:17:10] Speaker 07:
There was.

[00:17:10] Speaker 07:
And the Office of General Counsel

[00:17:12] Speaker 07:
was prepared to process.

[00:17:15] Speaker 07:
Also in this case, the union has already filed for recertification of the union.

[00:17:24] Speaker 07:
And there's going to be a hearing on that for the regional director.

[00:17:27] Speaker 03:
That has not been decided.

[00:17:29] Speaker 07:
It has not been decided.

[00:17:31] Speaker 07:
The hearing is going to be held in January.

[00:17:34] Speaker 07:
The parties had asked that proceedings be held.

[00:17:37] Speaker 03:
Has the composition of the FORA changed since 2020?

[00:17:44] Speaker 07:
Yes, it has.

[00:17:49] Speaker 07:
In any event, one of the issues that I did want to raise about the need to exhaust is Congress clearly did not intend for appropriate unit determination to be directly reviewed in the courts.

[00:18:00] Speaker 07:
We are concerned that the direct review of a constitutional claim will provide an incentive to parties to bring challenges to appropriate unit determinations

[00:18:13] Speaker 07:
as constitutional claims.

[00:18:15] Speaker 07:
And this is important institutionally because there are at least four different decisions among different FLRA components.

[00:18:25] Speaker 07:
And those components have non-reviewable decisions.

[00:18:30] Speaker 07:
And you can only get review indirectly.

[00:18:33] Speaker 07:
So for example, there were five challenges to fissive decisions in district courts over the past five years

[00:18:45] Speaker 07:
Those courts held parties in the case had to administrative exhaust through the ULT process, which is reviewable by the court.

[00:18:57] Speaker 07:
If that was not the case, the parties could simply challenge the decisions, authority decisions, and other non-reviewable decisions directly in the court by raising

[00:19:13] Speaker 01:
You sort of mentioned in passing in your briefing, I think it was in your reply brief, the principle that if the party didn't raise the argument before the agency and give the agency to address it, then we lack jurisdiction over it.

[00:19:26] Speaker 07:
That is also true.

[00:19:28] Speaker 01:
But are you relying on that argument?

[00:19:29] Speaker 01:
Because I think if it's jurisdictional, it doesn't matter whether you specifically invoke it.

[00:19:34] Speaker 01:
But your brief didn't make much of an argument to that effect.

[00:19:40] Speaker 07:
In my brief before you today, I can make the argument before you today.

[00:19:45] Speaker 01:
I think that... I guess I'm wondering, did you not emphasize it in your briefing because you have a concern about its applicability here?

[00:19:52] Speaker 07:
No, I don't, Your Honor.

[00:19:54] Speaker 07:
I think claims need to be administratively exhausted.

[00:19:58] Speaker 07:
And in this case, it goes also to the issue of prematurity, because the constitutional claims were not raised before the authority in the first motion for reconsideration.

[00:20:09] Speaker 07:
only in the second motion for reconsideration and the union filed the petition before this court before the authority could address it.

[00:20:20] Speaker 03:
I think it's an odd formulation.

[00:20:22] Speaker 03:
The way I understand it, and I'll ask counsel for the union, is the claim is that the decision of the board or the authority was arbitrary and capricious and therefore denied us due process.

[00:20:38] Speaker 03:
Which is just a kind of fancy way of saying it violated the APA.

[00:20:44] Speaker 07:
That is a concern that.

[00:20:47] Speaker 07:
And I think this Supreme Court said in FCCD box that there is arbitrary increases under constitutional standards are different.

[00:20:58] Speaker 03:
See, that's an objection.

[00:21:00] Speaker 03:
That is a camp that's never made.

[00:21:04] Speaker 03:
in the before the agency, no matter which agency it is, whether it's the board or any other FCC or whatever, it's an objection that's always made for the first time in our court, obviously, because you can't make it without having the decision already come down.

[00:21:21] Speaker 03:
It's arbitrary and capricious.

[00:21:24] Speaker 03:
So that doesn't fall within the prohibition of the whatever 7123 or C or something like that.

[00:21:34] Speaker 07:
The problem with that is, Your Honor, that because there is no direct judicial review of great unit determinations, Congress didn't intend that, that exhaustion of constitutional claim should be exhaustion in direct review the same way that it would be under a simple challenge.

[00:21:58] Speaker 07:
That's the problem.

[00:22:05] Speaker 07:
Thank you very much, Your Honor.

[00:22:07] Speaker 01:
Thank you, Council.

[00:22:09] Speaker 01:
Mr. Garcia, we'll give you two minutes for rebuttal.

[00:22:14] Speaker 05:
Thank you, Your Honors.

[00:22:15] Speaker 05:
The first one I want to talk about is the due process issue and when it was raised, right?

[00:22:18] Speaker 05:
So this is a quote from our motion to reconsider on November 17th, 2020.

[00:22:22] Speaker 05:
The authority erred in at least two ways.

[00:22:25] Speaker 05:
One, it incorrectly concluded that this renewed attempt by the agency to rid itself of the union was not an unlawful collateral attack on a previous unit certification

[00:22:34] Speaker 05:
And two, ignored its own precedent in agency regulations.

[00:22:37] Speaker 05:
It's the fundamental things we've been raising for 20 years or for the past two years in our briefing.

[00:22:42] Speaker 05:
It's been before the agency or the authority for at least two years.

[00:22:47] Speaker 01:
It seems to me quite different to say that it's wrong and to say that it's a violation of due process.

[00:22:52] Speaker 01:
Assuming that you needed to, assuming that this is the type of thing that you could have raised.

[00:22:56] Speaker 01:
and that that doctrine applies here.

[00:22:57] Speaker 05:
Those aren't the same thing.

[00:22:58] Speaker 05:
We believe that it raises to the level of a constitutional violation because we pointed out the same issues about the flipping nature of the decision, the lack of analysis of the regional director's decision.

[00:23:10] Speaker 05:
That's what we think these are.

[00:23:11] Speaker 03:
That's just an arbitrary and capricious argument.

[00:23:15] Speaker 05:
So the statement about arbitrary and capricious, right, the County of Sacramento case has held that, quote, we have emphasized time and again

[00:23:25] Speaker 05:
touchstone of due process is protection of the individual against arbitrary action of government, whether the fault lies in a denial of fundamental procedural fairness,

[00:23:33] Speaker 03:
or in the exercise of power without any reasonable justification, the service of a legitimate... Yeah, so you read that and it means every case that we've decided that an agency has acted arbitrarily and capriciously, we've also decided that it's a violation of the Constitution.

[00:23:48] Speaker 03:
I don't think that's correct.

[00:23:49] Speaker 05:
I agree with you on that not every single time that someone acts arbitrarily and capriciously is a constitutional violation, but in this

[00:23:55] Speaker 05:
In this context, having one sentence that essentially tries to justify overturning the 20-year-old union does shock the conscience coupled with the fact of now-Chairman DuBester's two dissents talking about how he believes this was results-driven decision-making.

[00:24:14] Speaker 05:
To the final argument on jurisdiction, we believe that Griffith is controlling in this case, which did allow constitutional claims to be appealed under 7123A1, which shares the same legislative history as 7123A2.

[00:24:27] Speaker 05:
And because of that allowance, we have seen no cases that have flooded this court with constitutional claims on appeals for 7123A1.

[00:24:34] Speaker 05:
Thank you, Your Honors.

[00:24:37] Speaker 01:
Thank you, Council.

[00:24:38] Speaker 01:
Thank you to both Council.

[00:24:39] Speaker 01:
We'll take this case under submission.