American Federation of Government v. Gates

• Decision Date: 18 May 2007
• Docket Number: No. 06-5113.,06-5113.
• Citation: 486 F.3d 1316
• Parties: AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO, et al., Appellees v. Robert M. GATES, Secretary of Defense, in his Official Capacity and Linda M. Springer, Director, in her Official Capacity, Appellants.
• Court: U.S. Court of Appeals — District of Columbia Circuit

486 F.3d 1316

AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO, et al., Appellees v. Robert M. GATES, Secretary of Defense, in his Official Capacity and Linda M. Springer, Director, in her Official Capacity, Appellants.

No. 06-5113.

United States Court of Appeals, District of Columbia Circuit.

Argued December 11, 2006.

Decided May 18, 2007.

Appeal from the United States District Court for the District of Columbia (No. 05cv02183).

William G. Kanter, Attorney, U.S. Department of Justice, argued the cause for appellants. With him on the briefs were Peter D. Keisler, Assistant Attorney General, Jeffrey A. Taylor, U.S. Attorney, Gregory G. Katsas, Deputy Assistant Attorney General, Thomas M. Bondy, Lewis S. Yelin, and Eric Fleisig-Greene, Attorneys, Frank R. Jimenez and Michael E. Reheuser, Attorneys, Department of Defense, and David B. Scholl and Robin M. Richardson, Attorneys, Office of Personnel Management. Joseph W. LoBue and Tara L. Grove, Attorneys, U.S. Department of Justice, entered appearances.

Joe Goldberg argued the cause for appellees. With him on the brief were Mark D. Roth, Susan Tsui Grundmann, Sally M. Tedrow, Keith R. Bolek, and Daniel M. Schember. Charles A. Hobbie entered an appearance.

Gregory O'Duden, Elaine Kaplan, Larry J. Adkins, and Robert H. Shriver III were on the brief for amicus curiae National Treasury Employees Union in support of appellees. Barbara A. Atkin entered an appearance.

Before: TATEL and KAVANAUGH, Circuit Judges, and WILLIAMS, Senior Circuit Judge.

Opinion for the Court filed by Circuit Judge KAVANAUGH, in which Senior Circuit Judge WILLIAMS joins.

Dissenting opinion filed by Circuit Judge TATEL.

KAVANAUGH, Circuit Judge.

This case arises out of a contentious dispute over the collective bargaining rights of hundreds of thousands of civilian employees of the Department of Defense. Our limited judicial task is to determine whether the Department of Defense has acted consistently with its statutory authority in promulgating certain regulations. The primary legal question we must decide is whether the National Defense Authorization Act for Fiscal Year 2004 authorizes DoD to curtail collective bargaining rights that DoD's civilian employees otherwise possess under the Civil Service Reform Act of 1978. We hold that the National Defense Authorization Act grants DoD temporary authority to curtail collective bargaining for DoD's civilian employees. By its terms, the Act authorizes DoD to curtail collective bargaining through November 2009. But after November 2009, with certain specified exceptions, DoD again must ensure collective bargaining consistent with the Civil Service Reform Act of 1978. We reverse the District Court's judgment, and we uphold the DoD regulations at issue in this appeal.

I

1. To put together the pieces of the statutory puzzle in this case, one must first appreciate the difference between Chapter 71 and Chapter 99 of Title 5 of the U.S. Code.

Chapter 71 of Title 5 codifies the Civil Service Reform Act of 1978 and establishes the right of federal civilian employees, including civilian employees at the Department of Defense, "to engage in collective bargaining with respect to conditions of employment through representatives chosen by employees." 5 U.S.C. § 7102(2). The Act generally requires agency management to "meet and negotiate" in good faith with recognized unions over conditions of employment "for the purposes of arriving at a collective bargaining agreement." Id. § 7114(a)(1), (a)(4). The Act exempts various matters from collective bargaining, such as hiring, firing, suspending, paying, and reducing the pay of employees. See id. §§ 7103(a)(14)(C), 7106(a). Therefore, the Civil Service Reform Act ensures collective bargaining for federal employees, albeit more limited than the collective bargaining rights for private employees. See Nat'l Treasury Employees Union v. Chertoff, 452 F.3d 839, 860-61 (D.C.Cir.2006).

Chapter 99 of Title 5 codifies a section of the National Defense Authorization Act for Fiscal Year 2004 and sets out a new labor relations framework for Department of Defense employees. Chapter 99 differs from the Chapter 71 model in several respects. In particular, Section 9902(a) of Chapter 99 establishes procedures for DoD, in coordination with the Office of Personnel Management, to "establish, and from time to time adjust, a human resources management system for some or all of the organizational or functional units of the Department of Defense." 5 U.S.C. § 9902(a). (Hereafter, for ease of reference, we will refer only to DoD and not also to OPM.) The "human resources management system" is called the "National Security Personnel System." Id. Within the National Security Personnel System, the Act authorizes DoD to establish a "labor relations system" to structure bargaining between management and employees. Id. § 9902(m)(1).

Section 9902 of Chapter 99 in turn contains a complicated set of authorizations and requirements for DoD to follow in establishing the National Security Personnel System and the labor relations system, many of which are important to this case:

• General Requirements for National Security Personnel System—Subsections (b)(3), (b)(4), and (d)(2).

Subsection 9902(b) lists general "system requirements" for the National Security Personnel System. Of relevance here, subsection (b)(3)(D) states that the system "shall . . . not waive, modify, or otherwise affect . . . any other provision of this part (as described in subsection (d))." Subsection (d)(2) in turn says that the "provisions of this part referred to in subsection (b)(3)(D) are (to the extent not otherwise specified in this title) . . . [Chapter] 71 . . . and this chapter" (emphasis added).

Taken together, therefore, subsections (b)(3) and (d)(2) mean that DoD's National Security Personnel System may not waive or modify Chapter 71, which is the provision codifying the Civil Service Reform Act of 1978's limited collective bargaining rights for federal civilian employees, unless the authority to waive or modify Chapter 71 is "otherwise specified" in the statute.

Subsection (b)(4) of Section 9902 similarly requires DoD to "ensure that employees may organize, bargain collectively as provided for in this chapter, and participate through labor organizations of their own choosing in decisions which affect them, subject to the provisions of this chapter" (emphases added). Therefore, subsection (b)(4) requires that DoD's National Security Personnel System ensure collective bargaining, but only "as provided for in" and "subject to the provisions of" the statute.

• Authorization to Create Labor Relations System—Subsections (m) (1) and (m) (8).

Subsection (m) of Section 9902 authorizes DoD to create a new labor relations system within the National Security Personnel System. Specifically, subsection (m)(1) states: "Notwithstanding section 9902(d)(2), the Secretary . . . may establish and from time to time adjust a labor relations system for the Department of Defense to address the unique role that the Department's civilian workforce plays in supporting the Department's national security mission."

The "notwithstanding" clause in subsection (m)(1) indicates that the generally non-waivable provisions listed in subsection (d)(2)—including Chapter 71 and its protection of limited collective bargaining rights—do not constrain DoD's authority to develop a labor relations system under subsection (m).

Furthermore, subsection (m)(8) broadly states that the labor relations system developed and from time to time adjusted by DoD under subsection (m) "shall be binding on all bargaining units within the Department of Defense" and "shall supersede all other collective bargaining agreements for bargaining units in the Department."

Subsection (m)(9) provides, however, that the authority under subsections (m)(1) and (m)(8) runs out in November 2009: "Unless it is extended or otherwise provided for in law, the authority to establish, implement and adjust the labor relations system developed under this subsection shall expire six years after the date of enactment of this subsection [that is, six years after November 2003], at which time the provisions of chapter 71 will apply."

• Additional Authorization—Subsection (k)(1).

Subsection (k) of Section 9902 provides additional specific authority for DoD to act in certain specified areas of labor relations. Subsection (k)(1) states: "Notwithstanding subsection (d), the Secretary of Defense . . . shall not be limited by any provision of this title or any rule or regulation prescribed under this title in establishing and implementing regulations relating to—(A) the methods of establishing qualification requirements for, recruitment for, and appointments to positions; (B) the methods of assigning, reassigning, detailing, transferring, or promoting employees; and (C) the methods of reducing overall agency staff and grade levels . . . ."

Subsection (k)(1) is not subject to the sunset date of subsection (m)(9). Therefore, DoD will retain the targeted authority conferred by (k)(1) even after the broader general authority under subsection (m) runs out in November 2009.

2. After Congress enacted the National Defense Authorization Act in November 2003, DoD began developing the National Security Personnel System. On February 14, 2005, DoD published a proposed system in the Federal Register. See National Security Personnel System, 70 Fed.Reg. 7552. After various DoD employee representatives submitted comments, DoD held several meetings with employee representatives in the spring of 2005. On November 1, 2005, DoD promulgated final regulations setting up the National Security Personnel System. See Department of Defense Resources Management and Labor Relations System, 70 Fed.Reg. 66,116.

The regulations curtail the scope of Chapter 71 collective bargaining in several ways relevant to this appeal:

• The regulations permit certain DoD...