[00:00:00] Speaker 00: Case number 22-53 Oates, American Federation of Government Employees, National Council of HED Locals, Council 222 AFL-CIO versus Federal Labor Relations Authority, and Susan Swig Berman, Interoperational Capacity as Chairman of the Federal Labor Relations Authority Appellants. [00:00:19] Speaker 00: Mr. Tso for the appellants, Mr. Grijales for the appellee. [00:00:26] Speaker 03: Good morning. [00:00:26] Speaker 03: Good morning. [00:00:27] Speaker 03: Good morning, Your Honor. [00:00:30] Speaker 02: Hey, police, the court. [00:00:32] Speaker 02: I'm Esso for the FLRA. [00:00:35] Speaker 02: The case presented here is about lead-in jurisdiction, which this court has repeatedly said is a very narrow basis for the district court to review agency action, only in circumstances when there's extreme agency error and where the agency has committed ultra-virus actions so plainly beyond the bounds of its statutory authority. [00:00:57] Speaker 02: to warrant intervention by district court under 1331. [00:01:00] Speaker 02: Now this case concerns pretty much exactly the opposite, the type of case that warrants lead-in jurisdiction. [00:01:10] Speaker 02: In fact, in this case, the agency tried to correct an error to ensure that the entire case before it was within statutory bounds. [00:01:19] Speaker 02: the case presented to the FRA exceeded the statutory limits by intruding upon classification matters, which from its origin in the statute that created FRA specifically took away from the FRA's jurisdiction classification matters and gave it to sister agencies in the OPM and MSPB as we described in the briefs. [00:01:46] Speaker 02: Now, instead of going to these alternative agencies, it presented this case of classification to the FRA. [00:01:54] Speaker 02: And yes, the case went on for several years. [00:01:57] Speaker 02: But eventually, when it reached the FRA, the most recent instance, it looked at the case and saw that Arbor Trader acted beyond the statutory limits. [00:02:09] Speaker 02: And that is not in dispute before the appeal. [00:02:13] Speaker 02: the union did not dispute that, in fact, the classification issue was part of the case, integral to the case. [00:02:23] Speaker 02: And therefore, the FOIA was clearly correct in correcting the arbitrators exceeding statutory limitations. [00:02:31] Speaker 02: So we see this case very similar to Middleman, which, in fact, this court has said, cannot be an ultra-virus case because the agency took [00:02:40] Speaker 02: the pains to limit itself to fall within the statutory limits. [00:02:44] Speaker 02: Where does the authority get power to alter an award? [00:02:52] Speaker 02: So I think it's sourced in two different areas. [00:02:55] Speaker 02: One is 7122, which says concerning the award, it allows the authority when an arbitration award is presented to it to issue orders necessary [00:03:07] Speaker 02: to concerning the ward. [00:03:09] Speaker 02: And the ward here was a culmination of several intermediate awards that occurred over the years. [00:03:16] Speaker 02: And so when it says concerning the ward, within that, it was necessary to correct the ultra-virus actions that were void because of arbitrariness. [00:03:25] Speaker 02: That's during the mix. [00:03:26] Speaker 04: 7122 starts with subsection A and says, upon review, the authority [00:03:35] Speaker 04: finds so-and-so, then it may take such action. [00:03:40] Speaker 04: And then after that comes B. And the very next sentence says, if no exception is filed during the 30-day period, then the award is final and binding. [00:03:50] Speaker 04: So it seems like the authority has no power to do anything if no exception has been filed for 30 days. [00:04:01] Speaker 02: Well, you have to read 7122 along with the provision, which actually describes the powers and the extent of powers the authority was given by Congress, which was 7105. [00:04:10] Speaker 02: I think we have to read it in parallel in context. [00:04:15] Speaker 02: If you look at 7105, which is described as the powers of the authority, [00:04:19] Speaker 02: it in h it talks about resolving exceptions according to 7122 but then it goes on and i says and any necessary inappropriate actions to administer the statute which differentiates this from several other cases for example the what's what's the point of the 30-day limit if the authority can go back and alter any award at once in the past [00:04:40] Speaker 02: Well, this is, in this situation is quite different from a typical situation when there's an award that comes up that's all, that resolves all the issues in the case. [00:04:52] Speaker 02: I think when the FLRA looks at a particular award, it looks at the entire case which is presented to the FLRA, not necessarily single pieces of an award. [00:05:02] Speaker 02: Can I give you a hypothetical? [00:05:03] Speaker 04: What if there was one award? [00:05:06] Speaker 04: And it said, you know, this will be implemented over the course of the next 30 years. [00:05:10] Speaker 04: There was no dispute for the first 29 years. [00:05:14] Speaker 04: And then some dispute arose about implementation. [00:05:16] Speaker 04: 29 years worth of actions have been taken. [00:05:21] Speaker 04: And the authority decides, you know what, we think that that first award was invalid. [00:05:31] Speaker 04: all of the actions that we've ordered since then. [00:05:35] Speaker 02: Could it do that? [00:05:37] Speaker 02: Yes, under limited circumstances. [00:05:40] Speaker 02: So we're not talking about situations where it goes back and looks at merits of awards. [00:05:44] Speaker 02: Here we're talking about trying to ensure that the statutory limits are imposed. [00:05:48] Speaker 02: Because from the design, congressional design, it was not allowing arbitrations to reach these issues. [00:05:53] Speaker 05: Something like that happens all the time in institutional cases. [00:06:00] Speaker 05: where there's an injunction outstanding. [00:06:02] Speaker 05: The injunction is final and binding. [00:06:06] Speaker 05: But for example, in school desegregation cases, in prison litigation cases, it keeps getting adjusted and adjusted and adjusted, sometimes broader, sometimes narrower. [00:06:19] Speaker 05: And it may be over 20 years or 30 years [00:06:23] Speaker 05: And so the idea that it's final and binding means it's not final and binding on the court that issued the injunction. [00:06:32] Speaker 05: It's final and binding on the people that are subject to the injunction. [00:06:36] Speaker 05: And so it can always be modified. [00:06:38] Speaker 05: And it actually can, you know, if there's an appeal at any point during there's a Supreme Court case that details all this, I won't bother with it. [00:06:45] Speaker 05: It's called Rufo, R-U-F-O. [00:06:48] Speaker 05: I don't have the citation handy. [00:06:50] Speaker 02: The analogy to me is right on point. [00:06:56] Speaker 02: Exactly, Judge Randolph. [00:06:57] Speaker 02: In fact, there's a case from 1983 from this court, Office of Professional Workers versus WMATA, which makes the exact same point, which it says, in a similar situation, it read a statute with final and binding award, and it said that has nothing to do with judicial review, that all that has to do with is the party's compliance while judicial review is ongoing. [00:07:18] Speaker 02: It is sometimes unjust. [00:07:21] Speaker 02: It may be prejudicial. [00:07:23] Speaker 02: And Christensen versus Colt, the Supreme Court says, enforcing jurisdictional boundaries sometimes will cause prejudice. [00:07:29] Speaker 02: But that's what the authority is bound to do under the congressional design. [00:07:35] Speaker 02: And this is particularly clear when we talk about judicial preclusion, which is another basis for why lead-in jurisdiction cannot apply here. [00:07:44] Speaker 04: What if there was a habeas statute [00:07:47] Speaker 04: that looked different than current EDPA. [00:07:50] Speaker 04: And it said, once a conviction is final, the prisoner has one year to file a habeas petition. [00:07:59] Speaker 04: And if the prisoner doesn't file the habeas petition, that conviction cannot be vacated, period, full stop, no exceptions. [00:08:07] Speaker 04: You think that a court could come in 30 years later and vacate the conviction? [00:08:11] Speaker 02: Well, first of all, the habeas petition, I think it's a petition for within the, it's a recognized petition to the courts, right, for releasing of prisoners here. [00:08:22] Speaker 02: Here we're talking about arbitration decisions that are final and binding that are before judicial review. [00:08:28] Speaker 02: So in this circumstance, when we look at the office and professional workers case, the court was pretty clear that [00:08:34] Speaker 02: the congressional history behind final and binding language and arbitration context between two private parties means that it is applicable to the parties themselves to prevent strikes and lockouts to maintain labor peace while the judicial review is ongoing. [00:08:49] Speaker 02: And under the congressional design, FLRA was the first step in that judicial review process. [00:08:56] Speaker 02: And so it's what this court said in SCOBY was quite clear that Congress wanted [00:09:03] Speaker 02: FRA to have full sort of authority in non unfair labor practice case, but a regular arbitration case as presented here, full authority to decide those cases without further judicial review. [00:09:15] Speaker 02: And that is why the second prong, in addition to the final and binding language, not being a clear mandatory requirement, the second prong also applies in that this court in Wagner, Loy, Scobie repeatedly has said that there is no jurisdiction of the federal courts. [00:09:32] Speaker 02: Don't forget custom service. [00:09:35] Speaker 02: Custom service, yes. [00:09:36] Speaker 02: Yes, they're just repeated sort of language, including Scobie saying it's a plain language. [00:09:42] Speaker 02: And Lloyd, Judge Randolph's opinion in Lloyd, basically saying there is no judicial review of these arbitration awards. [00:09:49] Speaker 02: And yes. [00:09:50] Speaker 02: Can I get your thoughts on this theory of the case? [00:09:55] Speaker 04: The authority does not have the power to vacate the, I think it was a 2012 award, the award that preceded summary number one. [00:10:07] Speaker 04: But if today's authority believes that that 2012 award was valid, there was no jurisdiction, then it can treat it as a nullity. [00:10:22] Speaker 04: So the authority going forward can issue decisions that treat it as a nullity. [00:10:29] Speaker 04: But what it can't do is it can't go back in time and vacate that 2012 award. [00:10:38] Speaker 04: So the parties are bound by the 2012 award, except to the extent that future orders from the authority [00:10:47] Speaker 04: tell them to do things in conflict with the award. [00:10:50] Speaker 04: And maybe future orders from the authority could tell them to do things in conflict with the award, because in the eyes of the authority, the award was issued without jurisdiction. [00:10:59] Speaker 04: How does that sound? [00:11:01] Speaker 02: So that is sort of, that is suggesting the case in Nicholson, which does say FLRI already has the authority to not enforce awards that it views are nullities. [00:11:11] Speaker 02: And so yes, we agree that that is a possibility, but it seems. [00:11:16] Speaker 02: Would that be good enough? [00:11:17] Speaker 02: Well, for a direct review to prevent having the parties to, again, having to go in the court and then go through the entire process, it seems to me that it's favorable to have a direct review situation when there's a case right before the FRA to enact the same effect instead of waiting for the parties then to enforce the award and then telling them. [00:11:41] Speaker 05: judicial review is precluded. [00:11:44] Speaker 05: And that's what you were talking about. [00:11:46] Speaker 02: Yes. [00:11:47] Speaker 02: So there's essentially three prongs to lead them. [00:11:48] Speaker 02: I think the plaintiff doesn't satisfy the burden on any of the three prongs. [00:11:53] Speaker 02: And so if you don't think it's favorable on one prong, I think the other two prongs do also prevent. [00:11:59] Speaker 02: So I think my time's up. [00:12:01] Speaker 02: Thank you. [00:12:03] Speaker 03: We'll give you some time on rebuttal. [00:12:12] Speaker 03: May it please the court, Andy Grahalis, for the union. [00:12:16] Speaker 06: The problem with what the FLRA is asserting here is that it has absolutely no limiting principle. [00:12:22] Speaker 06: They can act prospectively. [00:12:24] Speaker 06: But nothing in their delegated powers gives them the power to rewrite history. [00:12:29] Speaker 04: Are you saying that the theory I floated you would be on board with? [00:12:34] Speaker 04: Are you saying that the theory I floated in my last question to opposing counsel is an approach to the case that you would be on board with? [00:12:41] Speaker 04: And just be clear what I think it would look like. [00:12:43] Speaker 04: We would rule for you in this court. [00:12:46] Speaker 04: We would reverse the district courts [00:12:52] Speaker 04: We would, no, we would affirm, we would rule for you in this court. [00:12:55] Speaker 04: We would affirm the district courts granting of your summary judgment motion, because what you asked for was for the district court to vacate the authority's vacateur of the previous awards. [00:13:09] Speaker 04: Correct. [00:13:09] Speaker 04: So, so far it sounds like you're- We asked for a vacator of HUD 8 and HUD 9. [00:13:13] Speaker 04: So far it sounds like you're winning, but, but, [00:13:16] Speaker 04: And that would be nice for you because maybe it would mean that outstanding obligate, maybe it would mean that satisfied obligations. [00:13:23] Speaker 06: Well, it would indicate a right that the union has to binding arbitration because let's not forget that this issue, the issue here is that the authority already decided the legal question of whether the grievance concern classification found that it did not. [00:13:40] Speaker 04: Before you get off track, let me tell you what I think you would not maybe like about this approach is that [00:13:47] Speaker 04: that the authority here would not be obligated to enforce outstanding obligations because those obligations would flow from an award that lacked jurisdiction. [00:14:06] Speaker 06: So we would argue that the correct approach, if the court were to side with us, would be to affirm the district court, vacate [00:14:17] Speaker 06: HUD 8 and HUD 9, a remand to the authority for reconsideration of the 10th summary in light of any findings that this court would make. [00:14:27] Speaker 06: And so in answer to your question, it's a hypothetical of whether some future remedy would violate some other portion of the statute. [00:14:38] Speaker 06: But that would only apply to the exceptions that were in front of the authority. [00:14:43] Speaker 06: They would have to be in front of the authority. [00:14:46] Speaker 06: here is twofold. [00:14:49] Speaker 06: The authority had already made the legal determination that the grievance did not concern classification. [00:14:56] Speaker 06: So the injunction analogy that Your Honor raised isn't quite right, with due respect, because it's more as if in Brown versus Board of Education, the Supreme Court made a legal conclusion of a constitutional violation. [00:15:09] Speaker 06: That legal conclusion remained the same, and it bound those parties, certain. [00:15:16] Speaker 06: But whether implementation in the future would change, depended on whether or not there was a live case and controversy. [00:15:23] Speaker 05: It's not just Brown. [00:15:24] Speaker 05: It's a whole series of cases. [00:15:26] Speaker 05: Let me ask you something. [00:15:28] Speaker 05: You agreed, do you not, that under section, was it 7123, that our court would not have jurisdiction if you filed your action in our court? [00:15:41] Speaker 05: In this court, the lead-up has to proceed in addition to that. [00:15:45] Speaker 05: If you filed your action for judicial review of the FRA arbitration decision in our court, we wouldn't have jurisdiction. [00:15:58] Speaker 06: That would be the premise of the case, and that's why we filed district court. [00:16:01] Speaker 06: To be clear. [00:16:02] Speaker 06: The answer is yes, we would not have jurisdiction. [00:16:08] Speaker 05: If you were filed as an original matter in this court, that's correct. [00:16:12] Speaker 05: If we don't have jurisdiction and all the cases that the counsel for the FRA cited, we don't have jurisdiction. [00:16:20] Speaker 05: Judicial review is precluded. [00:16:24] Speaker 05: Then how can it be [00:16:26] Speaker 05: that we have jurisdiction to decide this case. [00:16:29] Speaker 05: Because in this case, we have to conduct judicial review of the FRA decision. [00:16:36] Speaker 05: And Congress told us we can't do that. [00:16:39] Speaker 06: Your Honor, it's because it's apples and oranges. [00:16:42] Speaker 06: The cases that all of the cases that they cite to are inapposite. [00:16:46] Speaker 06: To begin with, this court decided in Griffith that Leadham Review is available for this purpose [00:16:54] Speaker 06: when a party is bringing a challenge to a violation so severe that the authority has aggregated to itself a power that the statute does not give it. [00:17:06] Speaker 05: That case, which is the case here, belongs in the district. [00:17:11] Speaker 05: We're aggregating to ourselves a power the statute doesn't give us, namely to review an arbitration decision that you've brought to us now. [00:17:19] Speaker 05: That's brought to us now on appeal. [00:17:21] Speaker 05: Well, not at all. [00:17:21] Speaker 05: You're on that. [00:17:22] Speaker 05: That is that situation did not exist in Lidl. [00:17:26] Speaker 05: In Lidl, there was no bar on appellate review, no bar of judicial review on appeal. [00:17:34] Speaker 05: So if there is here and so the system that's being set up is that we don't have jurisdiction to decide this case, but the district court does. [00:17:45] Speaker 05: I mean, that's basically what you're arguing here. [00:17:49] Speaker 06: That's what this court has already cited in Griffith at 490 of that opinion. [00:17:56] Speaker 06: That's exactly what Griffith says. [00:17:58] Speaker 06: And Griffith is not dicta. [00:18:00] Speaker 06: This court, when it makes a finding, is not speaking in terms of dicta. [00:18:05] Speaker 06: It's speaking in terms of a finding. [00:18:07] Speaker 06: And we know that because in the very same sense, this court says, we find [00:18:15] Speaker 06: that the statute leaves the door ajar for a litem ultra-virus claim. [00:18:21] Speaker 06: The court then goes on in Griffith to say, but they haven't met the standard in that particular case. [00:18:27] Speaker 05: Is Griffith under 7123? [00:18:29] Speaker 06: Yes, Griffith is under this statute. [00:18:32] Speaker 06: So Griffith controls the question of whether or not litem is available at all. [00:18:38] Speaker 06: And in any event, if you look at 7123, [00:18:42] Speaker 06: Preclusion is clearly implied. [00:18:44] Speaker 06: It's not expressed. [00:18:45] Speaker 06: When I agreed with you earlier, that's because we're talking about run-of-the-mill cases that don't rise to the level, that jurisdictional dimension. [00:18:56] Speaker 05: Well, I want to ask you about that. [00:18:57] Speaker 05: Do you realize that there's a bar in the Administrative Procedure Act under 701, and it says that if a statute precludes judicial review, [00:19:10] Speaker 05: The APA doesn't apply. [00:19:12] Speaker 05: You're familiar with that, I'm sure. [00:19:14] Speaker 05: Right? [00:19:15] Speaker 05: Certain. [00:19:16] Speaker 05: Yeah. [00:19:17] Speaker 05: Do you realize that the original bill said if a statute does not expressly preclude judicial review, then the APA does not apply. [00:19:29] Speaker 05: And the word expressly was excised from the statute. [00:19:36] Speaker 05: And the reason for that is that judicial decisions can determine whether there's a preclusion of judicial review. [00:19:45] Speaker 05: And we have half a dozen of them that hold just that with respect to analogies to this case. [00:19:54] Speaker 06: Well, again, Your Honor, we don't believe that the court has ever held that elitem is unavailable under the statute. [00:20:01] Speaker 06: This court has consistently held that elitem is available. [00:20:04] Speaker 06: It has looked very, [00:20:06] Speaker 06: cautiously and hard at particular claims. [00:20:11] Speaker 06: And we invite the court to do that here because we believe we meet the standard, but lead them is certainly available. [00:20:19] Speaker 06: I believe I may be over my time. [00:20:21] Speaker 06: I would just like to close with, if this was a power that the statute gave them. [00:20:26] Speaker 04: I have a question along the lines of your answers to judge Randolph. [00:20:31] Speaker 04: We leave them and the way we've interpreted it as a court distinguishes between express and implied. [00:20:40] Speaker 04: Jurisdiction strip. [00:20:42] Speaker 04: Or pollution and. [00:20:43] Speaker 04: I mean, what is the difference between express and imply? [00:20:49] Speaker 06: The difference is clear. [00:20:51] Speaker 06: The difference is if you look at the MCOR case, it says there will be no judicial review. [00:20:56] Speaker 06: The Fiscal Responsibility Act of 2023 says no determination, action, et cetera, shall be subject to judicial review. [00:21:04] Speaker 06: That's express exclusion. [00:21:06] Speaker 04: There's none of that language here. [00:21:08] Speaker 04: And kind of action and omission. [00:21:11] Speaker 04: And that line is always pretty blurry. [00:21:14] Speaker 04: That's why I always phrase an omission as an action. [00:21:17] Speaker 06: If we go back and we think about the considerations that underpin LEEDM, that's a real distinction with the difference because agencies have initial are preachers of delegated authority. [00:21:30] Speaker 06: And so that's what LEEDM is saying is there must be review when an agency so violates its statute, where its violation is so severe that it takes into itself a power it doesn't have, it arrogates power it doesn't have. [00:21:45] Speaker 06: There must be review. [00:21:47] Speaker 06: And that review proceeds in the district court. [00:21:50] Speaker 06: And the defleri doesn't have that power. [00:21:53] Speaker 06: Their argument with respect to 7122A, they read the word concerning, they divorce it from the rest of the subsection. [00:22:03] Speaker 06: And in 7105, that section begins with a limitation. [00:22:09] Speaker 06: That can't be a plenary grant of power to the authority. [00:22:13] Speaker 06: It can't be. [00:22:15] Speaker 06: It begins with a limitation, and that limitation is subject in accordance with this chapter. [00:22:21] Speaker 06: And even the specific subsection they rely on that gives the authority the power to take necessary and appropriate or proper and appropriate actions, it can't be appropriate if what they do violates another section of the statute. [00:22:37] Speaker 06: So the powers that they claim they have under the statute don't give them the power that they sought to exercise in this case. [00:22:45] Speaker 06: And again, the local 446 case, all of those cases that they rely on are totally inapposite. [00:22:52] Speaker 06: Local 446 involved a separate statute, and it was a UOP. [00:23:01] Speaker 06: And it actually, the determination by the undersecretary of the VA in that case happened much later in time, and that's what led to that decision. [00:23:10] Speaker 01: Do you agree with your friend on the other side that the arbitrator's decision was ultra-virus to the extent that it concerns classification? [00:23:25] Speaker 06: No, and I also point out that's not a concession we make. [00:23:29] Speaker 06: We don't believe that's a fair reading or brief, but also it's not a fair construction of the record. [00:23:36] Speaker 06: If you go back to Joint Appendix 759 in the union's response to the authority's amended statement of facts, we say that the grievance did not involve classification. [00:23:49] Speaker 06: So that's not a concession we make. [00:23:51] Speaker 06: Why doesn't it? [00:23:53] Speaker 06: Because it didn't, well, I mean, if we go, it's a promotion grievance about whether or not [00:23:59] Speaker 06: individuals were denied promotion potential into previously classified position. [00:24:05] Speaker 06: And that's why. [00:24:05] Speaker 06: And that's what the authority found in HUD 2. [00:24:08] Speaker 06: They resolved that. [00:24:09] Speaker 06: And the authority has been reviewing the remedy. [00:24:12] Speaker 06: It's not actually a fair construction to say the authority never reviewed the remedy. [00:24:17] Speaker 06: HUD 3, HUD 4, HUD 6, those are authority decisions, final and binding authority decisions, where the authority upheld it. [00:24:24] Speaker 06: And in HUD 3, [00:24:27] Speaker 06: where the authority says the agency below HUD waived its defenses or its arguments on exceptions, let's remember that how that occurred was in HUD 2. [00:24:41] Speaker 06: It was the FLRA that remanded to the parties or resubmission to the arbitrator absent settlement. [00:24:48] Speaker 06: That's all that the union did. [00:24:49] Speaker 06: They didn't settle. [00:24:50] Speaker 06: They followed the authority's orders. [00:24:52] Speaker 06: So that's where that power came. [00:24:53] Speaker 06: So no, we don't. [00:24:55] Speaker 05: We don't agree and you interpret in following language from opinions of our court. [00:25:00] Speaker 05: We have recognized an arbitrator's award is absolutely immune from judicial review. [00:25:08] Speaker 05: Or in any event, the authorities, the final stop. [00:25:14] Speaker 05: Or the service here committed [00:25:17] Speaker 05: Once the authority determines that the service has not committed an unfair labor practice, that's the end of the line. [00:25:27] Speaker 06: Again, Your Honor, we would argue that's apples and oranges. [00:25:32] Speaker 05: The court was wrong in stating it that way? [00:25:34] Speaker 06: No, it's what was under review. [00:25:37] Speaker 06: that is different from what was under review here. [00:25:40] Speaker 06: Let's recall, we're not, actually those cases help us because what we are arguing promotes the finality of arbitration wards, which this court has said in a variety of cases is what the statute intended. [00:25:54] Speaker 06: We're trying to get the benefit of the binding arbitration, the right that the statute gives us that the authority to do process case wasn't. [00:26:03] Speaker 06: No, Griffith had a variety of claims in it. [00:26:07] Speaker 06: There was a statutory claim. [00:26:08] Speaker 06: That was the Leadham claim that was reviewed, but ultimately rejected. [00:26:12] Speaker 06: It was a due process claim. [00:26:15] Speaker 06: That's what the court reviewed after going through Leadham. [00:26:20] Speaker 06: It was a constitutional claim. [00:26:22] Speaker 06: There were multiple claims in Griffith. [00:26:24] Speaker 06: But in closing, if this was a power that the authority had to go back and rewrite history, to unring a bell that's already been rung, we would have seen some evidence of that in their last close to 50 years of decisions. [00:26:37] Speaker 06: And it's not there because they don't have that. [00:26:40] Speaker 03: Thank you. [00:26:41] Speaker 03: We ask for a firmance. [00:26:49] Speaker 03: That we're opposing council left off, has the authority ever done this? [00:26:54] Speaker 02: The authority has in Nicholson is probably the closest in which we've said that there is no longer final binding. [00:27:02] Speaker 02: You're trying to enforce avoid a war that went outside this jurisdiction. [00:27:06] Speaker 02: The Nicholson to the authority Nicholson purports to vacate the original award. [00:27:13] Speaker 02: It didn't use the word vacature because at that point it was an enforcement action already. [00:27:17] Speaker 02: So it was in a different procedural posture. [00:27:20] Speaker 02: But I would like to go back. [00:27:22] Speaker 04: Maybe another way of putting it is did it attempt to reverse satisfied obligations? [00:27:30] Speaker 02: I think what it did was exactly what your honor said was treated as a nullity. [00:27:34] Speaker 02: So it didn't create, yes. [00:27:35] Speaker 02: But I think you have to go back and look at 71-22 as a matter of statutory interpretation. [00:27:40] Speaker 02: We could affirm the district court here [00:27:43] Speaker 04: and still leave open the possibility that you the authority could treat the 2012 award and summaries one through nine as felonies. [00:27:52] Speaker 04: We can leave open that possibility. [00:27:53] Speaker 02: We can leave open that possibility, but I think reading 7122 closely, I think will allow for direct review of these. [00:28:00] Speaker 02: And let me just point out that it says recommendations too, and it also allows FRA to remand back to the arbitrator. [00:28:08] Speaker 02: So it seems like it doesn't make sense when you can remand and make recommendations. [00:28:11] Speaker 02: You can't in the subsequent authority decisions when this case comes up again, you go back and vacate awards that went outside the bounds of those recommendations and remands. [00:28:20] Speaker 02: And it happened here. [00:28:22] Speaker 02: I want to ask you a clarification. [00:28:25] Speaker 05: If you didn't, if the FRA did not vacate the other than the summary 10 or whatever, didn't, then how would the union enforce the arbitrator's previous decisions? [00:28:41] Speaker 02: But we believe it's complete. [00:28:43] Speaker 02: It will be almost impossible because they're all a culmination. [00:28:46] Speaker 02: They're all related to each other. [00:28:47] Speaker 05: They would insist on compliance by HUD. [00:28:52] Speaker 05: HUD would refuse because the orders were nullities. [00:28:57] Speaker 05: Then the union would file an unfair labor practice charge. [00:29:01] Speaker 05: Right. [00:29:02] Speaker 05: And the precedent is that they didn't have the arbitrator didn't have jurisdiction. [00:29:06] Speaker 05: So they would lose. [00:29:07] Speaker 02: Yeah. [00:29:08] Speaker 02: So I mean, it goes back to a simple principle that people who act outside in ultra virus ways, like the arbitrator did in these previous summaries, their decisions are void, not voidable. [00:29:17] Speaker 02: So there were nullities from the beginning. [00:29:20] Speaker 02: And so it's hard to allow just for the enforcement action, I think, in a direct review. [00:29:25] Speaker 02: It doesn't mean that. [00:29:27] Speaker 02: I think that makes a lot of sense. [00:29:27] Speaker 04: Doesn't what Judge Randolph suggests is [00:29:30] Speaker 04: You might lose the battle in terms of whether we affirm the district court, but you can still win the war. [00:29:37] Speaker 04: You can still refuse to enforce things you think ought not be enforced. [00:29:40] Speaker 04: At the end of the day, practically, even if we affirm the district court, you can still get your way. [00:29:46] Speaker 02: I understand. [00:29:47] Speaker 02: For this case, yes, but I want to preserve the ability to correct remand. [00:29:51] Speaker 02: Arbitrations are remand. [00:29:52] Speaker 02: Arbitrations are recommended. [00:29:53] Speaker 02: Arbitrations that were on interlocutory view, for example, we have to go back and can vacate awards when arbitrators went off the rails after remand, for example. [00:30:03] Speaker 02: But I just want to make one last point in conclusion that Griffith, it was about a constitutional claim. [00:30:07] Speaker 02: I think the operative and governing standards should be M-Corp, which is significantly different from the Griffith standard, which was issued before the M-Corp Supreme Court decision. [00:30:17] Speaker 02: Thank you. [00:30:20] Speaker 02: Thank you. [00:30:20] Speaker 02: We'll take the case under advisement.