National Treasury Employees Union v. Chertoff
| Citation | 452 F.3d 839 |
| Decision Date | 27 June 2006 |
| Docket Number | No. 05-5437.,No. 05-5436.,05-5436.,05-5437. |
| Parties | NATIONAL TREASURY EMPLOYEES UNION, et al., Appellees/Cross-Appellants v. Michael CHERTOFF, Secretary, United States Department of Homeland Security and Linda M. Springer, Director of the Office of Personnel Management, Appellants/Cross-Appellees. |
| Court | United States Courts of Appeals. United States Court of Appeals (District of Columbia) |
Thomas M. Bondy, Attorney, U.S. Department of Justice, argued the cause for appellants/cross-appellees. With him on the briefs were Peter D. Keisler, Assistant Attorney General, Kenneth L. Wainstein, U.S. Attorney, Gregory G. Katsas, Deputy Assistant Attorney General, William G. Kanter, Deputy Director, Tara Leigh Grove, Attorney, Leland E. Beck, Counsel, Department of Homeland Security, and Mark A. Robbins, David B. Scholl, and Robin M. Richardson, Counsel, Office of Personnel Management.
Gregory O'Duden argued the cause for appellees/cross-appellants. With him on the briefs were Elaine D. Kaplan, Larry J. Adkins, Robert H. Shriver, III, Mark D. Roth, Susan Tsui Grundmann, Kim D. Mann, Sally M. Tedrow, Robert Matisoff, and Keith R. Bolek. Charles A. Hobble entered an appearance.
Before: RANDOLPH and GRIFFITH, Circuit Judges, and EDWARDS, Senior Circuit Judge.
Opinion for the Court filed by Senior Circuit Judge EDWARDS.
Act Homeland Security Act
Authority Federal Labor Relations
Authority
Chapter 71 Codifies the Federal Services
Labor-Management Statute
Chertoff I The first District Court opinion
at 385 F.Supp.2d 1 (D.D.C
2005)
Chertoff II The second District Court
opinion at 394 F.Supp.2d 137
(D.D.C.2005)
Department Department of Homeland
Security
DHS Department of Homeland
Security
Final Rule DHS Human Resources Management
System (at 5 C.F.R
Part 9701)
FLRA Federal Labor Relations
Authority
FSLMS Federal Services Labor-Management
Statute
(codifying "Chapter 71")
HR system The human resources management
system adopted in Final
Rule
HSA Homeland Security Act
HSLRB Homeland Security Labor
Relations Board
MRP Mandatory Removal Panel
under the HR system
MSPB Merit Systems Protection
Board
OPM Office of Personnel
Management
regulations The Final Rule (at 5 C.F.R
Part 9701)
Secretary Secretary of Homeland
Security
§ 9701 Statutory authorization for a
human resources management
system at DHS
TABLE OF CONTENTS
When Congress enacted the Homeland Security Act of 2002 ("HSA" or the "Act") and established the Department of Homeland Security ("DHS" or the "Department"), it provided that "the Secretary of Homeland Security may, in regulations prescribed jointly with the Director of the Office of Personnel Management, establish, and from time to time adjust, a human resources management system." 5 U.S.C. § 9701(a) (Supp. II 2002). Congress made it clear, however, that any such system "shall — (1) be flexible; (2) be contemporary; (3) not waive, modify, or otherwise affect [certain existing statutory provisions relating to, inter alia, merit hiring, equal pay, whistleblowing, and prohibited personnel practices], [and] (4) ensure that employees may organize, bargain collectively, and participate through labor organizations of their own choosing in decisions which affect them, subject to any exclusion from coverage or limitation on negotiability established by law." Id. § 9701(b)(1)-(4). The Act also mandated that DHS employees receive "fair treatment in any appeals that they bring in decisions relating to their employment." Id. § 9701(f)(1)(A). Section 9701 does not mention "Chapter 71," which codifies the Federal Services Labor-Management Statute ("FSLMS"), 5 U.S.C. §§ 7101-7106, 7111-7123, 7131-7135 (2000), and delineates the framework for collective bargaining for most federal sector employees.
In February 2005, the Department and Office of Personnel Management ("OPM") issued regulations establishing a human resources management system. See Department of Homeland Security Human Resources Management System, 70 Fed. Reg. 5272 (Feb. 1, 2005) (codified at 5 C.F.R. Chapter XCVII and Part 9701) ("Final Rule" or "HR system"). The Final Rule, inter alia, defines the scope and process of collective bargaining for affected DHS employees, channels certain disputes through the Federal Labor Relations Authority ("FLRA" or the "Authority"), creates an in-house Homeland Security Labor Relations Board ("HSLRB"), and assigns an appellate role to the Merit Systems Protection Board ("MSPB") in cases involving penalties imposed on DHS employees.
Unions representing many DHS employees (the "Unions") filed a complaint in District Court raising a cause of action under the Administrative Procedure Act, 5 U.S.C. § 701 et seq., to challenge aspects of the Final Rule. In a detailed and thoughtful opinion, Nat'l Treasury Employees Union v. Chertoff, 385 F.Supp.2d 1 (D.D.C.2005) ("Chertoff I"), the District Court found that the regulations would not ensure collective bargaining, would fundamentally and impermissibly alter FLRA jurisdiction, and would create an appeal process at MSPB that is not fair. Based on these rulings, the District Court enjoined DHS from implementing § 9701.706(k)(6) and all of Subpart E (§ 9701.501 et seq.) of the regulations. However, the District Court rejected the Unions' claims that the regulations impermissibly restricted the scope of bargaining and that DHS lacked authority to give MSPB an intermediate appellate function in cases involving mandatory removal offenses. The Government filed a motion to alter or amend the judgment, but the District Court denied that motion. See Nat'l Treasury Employees Union v. Chertoff, 394 F.Supp.2d 137 (D.D.C.2005) ("Chertoff II"). The case is now before this court on appeal by the Government and cross-appeal by the Unions. We affirm in part and reverse in part.
We hold that the regulations fail in two important respects to "ensure that employees may . . . bargain collectively," as the HSA requires. First, we agree with the District Court that the Department's attempt to reserve to itself the right to unilaterally abrogate lawfully negotiated and executed agreements is plainly unlawful. If the Department could unilaterally abrogate lawful contracts, this would nullify the Act's specific guarantee of collective bargaining rights, because the agency cannot "ensure" collective bargaining without affording employees the right to negotiate binding agreements.
Second, we hold that the Final Rule violates the Act insofar as it limits the scope of bargaining to employee-specific personnel matters. The regulations effectively eliminate all meaningful bargaining over fundamental working conditions (including even negotiations over procedural protections), thereby committing the bulk of decisions concerning conditions of employment to the Department's exclusive discretion. In no sense can such a limited scope of bargaining be viewed as consistent with the Act's mandate that DHS "ensure" collective bargaining rights for its employees. The Government argues that the HSA does not require the Department to adhere to the terms of Chapter 71 and points out that the Act states that the HR system must be "flexible," and from this concludes that a drastically limited scope of bargaining is fully justified. This contention is specious. Although the HSA does not compel the Government to adopt the terms of Chapter 71 as such, Congress did not say that Chapter 71 is irrelevant to an understanding of how DHS is to comply with its obligations under the Act. "Collective bargaining" is a term...
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