National Treasury Employees Union v. Chertoff, CIV.A.05-201(RMC).

Citation385 F.Supp.2d 1
Decision Date12 August 2005
Docket NumberNo. CIV.A.05-201(RMC).,CIV.A.05-201(RMC).
PartiesNATIONAL TREASURY EMPLOYEES UNION, et al., Plaintiffs, v. Michael CHERTOFF, Secretary, Department of Homeland Security, et al., Defendants.
CourtUnited States District Courts. United States District Court (Columbia)

Gregory O'Duden, Robert H. Shriver, National Treasury Employees Union, Mark D. Roth, American Federation of Government Employees, Susan Tsui Grundmann, National Federation of Federal Employees, Kim D. Mann, National Association of Agriculture Empolyees, Keith R. Bolek, O'Donoghue & O'Donoghue LLP, Washington, DC, for Plaintiffs.

Joseph W. Lobue, Susan Kay Rudy, US Department of Justice, Sarah Freitas Waldman, United States Department of Justice Civil Division, Washington, DC, for Defendants.

MEMORANDUM OPINION

COLLYER, District Judge.

The terrorist attacks on September 11, 2001, elevated to preeminence existing concerns regarding a federal system that diffused the responsibility for domestic security among numerous separate and independent agencies. Because "[t]he United States needs a homeland security establishment that can help prevent catastrophic attacks, mobilize national resources for an enduring conflict, and assist in recovery efforts all the while protecting this Nation's values and liberties," Congress created the Department of Homeland Security ("DHS") and gave its executive leadership the unenviable task of melding into a cohesive whole 22 agencies and parts of agencies that had previously been spread across the federal government. H.R.Rep. No. 107-609, at 63-64 (2002), reprinted in 2002 U.S.C.C.A.N. 1352, 1353; see Homeland Security Act of 2002 ("HSA"), Pub.L. No. 107-296 (Nov. 25, 2002) (codified as amended at 6 U.S.C. § 101, et seq. (2005)). Congress gave the Secretary of DHS ("Secretary") and the Director of the Office of Personnel Management ("OPM") (collectively "Agencies") extraordinary authority to develop a separate human resources management system ("HR System") for DHS without regard to many of the constraints imposed by the civil service laws that normally govern employees in the competitive service of the federal government.

Congress set out specific system requirements for the new HR System, mandating that it be flexible, contemporary, and ensure the ability of employees to bargain collectively. The National Treasury Employees Union, American Federation of Government Employees, National Federation of Federal Employees, National Association of Agriculture Employees, and Metal Trades Department of the AFL-CIO ("Unions"), which collectively represent approximately 60,000 DHS employees, challenge the regulations implementing DHS's new HR System for allegedly failing to comply with these requirements and for exceeding the authority of the Agencies. The Agencies move to dismiss and the Unions move for summary judgment.

As detailed below, the Court concludes that significant aspects of the HR System fail to conform to the express dictates of the Homeland Security Act. Implementation of Subpart E and 5 C.F.R. § 9701.706(k)(6) of Subpart G will be enjoined. Should the Agencies wish to submit an order that more selectively enjoins Subpart E in a manner otherwise comporting with this memorandum opinion, the Court would be willing to entertain it. A memorializing order accompanies this memorandum opinion.

I. BACKGROUND
A. This Litigation

DHS resulted from the largest reorganization of the federal government in decades. This behemoth and complex department was established by the HSA, an equally behemoth and complex statute.1 The primary missions of DHS are to prevent terrorist attacks in the United States, reduce our vulnerability to attack, and minimize damage from terrorist attacks, while simultaneously carrying out all of the functions of the agencies and subdivisions within the Department that are not related directly to securing the United States. See HSA § 111(b)(1). DHS employs approximately 110,000 people, many of whom are directly engaged in intelligence, counterintelligence, or investigative work related to terrorism investigations. Employees in such positions, among others, are not represented by the Unions and are not covered by the regulations under challenge. See HSA § 842(b), (e).

Given the enormity of the task of creating a cohesive whole out of all these disparate parts, Congress specifically authorized the Agencies to establish a new HR System at DHS "[n]otwithstanding any other provision" of Title 5, United States Code, which governs federal employment, except as noted. See 5 U.S.C. § 9701(a). The extraordinary nature of this grant of authority is described below.

The Agencies worked diligently to develop a new HR System that would meet the System Requirements set by law. There is no dispute here that, as part of that process, the Agencies fulfilled the "provisions to ensure collaboration with employee representatives"2 and provided written descriptions of the proposed changes to each employee representative; gave them time to review and make recommendations; considered their comments; and engaged in pre-implementation congressional notification, consultation, and mediation. At the end of this lengthy process, the Secretary determined "that further consultation and mediation [was] unlikely to produce agreement," and published final regulations on February 1, 2005. Department of Homeland Security Human Resources Management System, 70 Fed.Reg. 5272 (February 1, 2005) ("Regulations"). The Plaintiff Unions sued immediately, pursuant to Section 112(e) of the HSA, which states that regulations issued by the Secretary shall be subject to challenge under the Administrative Procedure Act. See 5 U.S.C. § 702. While briefing progressed on the parties' motions to dismiss and for summary judgment, the Unions moved for a preliminary injunction to forestall the effective date of the new HR System, scheduled for August 1, 2005. The Court held two hours of oral argument on the motions on July 14, 2005, and then asked for, and received, the Government's assurance that it would postpone the effective date until after August 15, 2005, so that the Court could rule on the merits in the first instance and not on the motion for a preliminary injunction. With thanks for this courtesy, the Court has carefully considered the arguments of the parties, and the entire record, and issues its opinion on an expedited basis.

B. Federal Labor Relations

The Federal Sector Labor Management Relations Act ("FSLMRA"), 5 U.S.C. §§ 7101-7106, 7111-7135 (2000), extends the right to bargain collectively through union representatives to most federal employees, with important caveats. If a union is elected by majority vote to represent an appropriate bargaining unit of employees, the employing agency must meet with union representatives to negotiate a collective bargaining agreement in good faith. Id. § 7114(a)(4). The parties bargain concerning "conditions of employment," id. § 7102(2), defined as those "personnel policies, practices, and matters ... affecting working conditions," id. § 7103(a)(14). While management retains its rights to make decisions without bargaining concerning wages and other subjects commonly negotiated in private-sector bargaining, see 5 U.S.C. § 7106(a), a federal-sector union can demand that the agency negotiate concerning the "impact and implementation" of most management rights, see Dep't of the Navy v. FLRA, 962 F.2d 48 50 (D.C.Cir.1992); 5 U.S.C. § 7106(b)(2)-(3), unless the impact is de minimis. See Nat'l Weather Serv. Employees' Org. v. U.S. Dep't of Commerce, 37 F.L.R.A. 392, 396 (1990).

Subjects for bargaining in the federal sector are divided into three categories. "Mandatory" subjects are those over which management is required to bargain upon request. "Permissive" subjects are those over which management can lawfully bargain but a union cannot force bargaining; any contract reached covering permissive terms is fully enforceable. "Prohibited" subjects are those over which management of an agency is not allowed by law to bargain. "[T]he phrase `conditions of employment' in turn is defined to include essentially all `personnel policies, practices, and matters ... except ... to the extent such matters are specifically provided for by federal statute.'" U.S. Dep't of Health and Human Servs. v. FLRA, 858 F.2d 1278, 1283 (7th Cir.1988) (citing 5 U.S.C. § 7103(a)(14)); see also FLRA v. U.S. Dep't of Justice, 994 F.2d 868, 872 (D.C.Cir.1993) ("[B]y case law and statutory reference, the term `impact and implementation' includes only the `procedures which management officials of the agency will observe in exercising' management rights and `appropriate arrangements for employees adversely affected by the exercise'" of the management rights defined by 5 U.S.C. § 7106(a).) (citation omitted). Even when bargaining is prohibited because issues are covered by a statute, the parties still "negotiate anything that complements, supplements, or explains the matter covered by federal statute." Henry H. Robinson, Negotiability in the Federal Sector 13-14 (1981).

Negotiations are prohibited on matters covered by a federal statute and specified management rights, including, inter alia, the mission, budget, and organization of the agency, the right to manage an agency's workforce and fill positions from certain pools of candidates, and the right to take "whatever actions may be necessary to carry out the agency mission during emergencies." 5 U.S.C. § 7106(a)(2)(A)-(D). A federal-sector union can demand bargaining over agency rules and regulations as long as the rule or regulation "is not a Government-wide rule or regulation." Id. § 7117(a)(1). However, if an agency can demonstrate a "compelling need" for the rule or regulation, id. § 7117(a)(2), it need only bargain about its impact and implementation and not about the decision to adopt the rule in the...

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