NATIONAL RAILROAD PASSENGER CORPORATION v. FRATERNAL ORDER OF POLICE, LODGE 189 et al
Filing
31
MEMORANDUM OPINION to the Order on the Motions for Summary Judgment. Signed by Judge Gladys Kessler on 11/2/15. (CL)
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
National Railroad Passenger
Corporation,
Plaintiff,
v.
Civil Action No. 14-cv-678{GK)
Fraternal Order of Police,
Lodge 189,
Defendant.
MEMORANDUM OPINION
Plaintiff National Railroad Passenger Corporation, best known
as Amtrak ("Plaintiff" or "Amtrak"), brings this action to vacate
an arbitration award under the Railway Labor Act, 45 U.S.C.
et seq.
App.
3
§
151
("RLA"), and the Inspector General Act of 1978, 5 U.S.C.
§
1 et seq.
Amtrak and Defendant
("IG Act").
the
After a
labor dispute between
Fraternal Order of
Police,
Lodge 189
("Defendant" or "the FOP") involving one of the FOP'S members, on
March 24, 2014, an Arbitrator issued a Decision and Award in favor
of the FOP. Arbitrator's Decision [Dkt. No.
22-1]. On April 22,
2014, Amtrak filed its Complaint and Petition to Vacate Arbitration
Award under the Railway Labor Act
[Dkt. No.
1],
contending that
the Arbitrator's Decision exceeded the scope of his jurisdiction
and violated public policy with respect to Amtrak Inspector General
investigations and Amtrak police officer discipline. 1
This matter is presently before the Court on Amtrak's Motion
for Summary Judgment [Dkt. No. 23] and the FOP's Cross-Motion for
Summary Judgment [Dkt. No. 25]. At the heart of the Parties' CrossMotions is a single legal question: are procedural limitations on
the conduct of internal investigations contained in a collective
bargaining agreement between Amtrak and the FOP binding on the
Amtrak Office of Inspector General? The Court concludes that they
are not. Upon
consid~ration
of the Motions, Oppositions [Dkt. Nos.
25, 27], Replies [Dkt. Nos. 27, 28], the United States' Statement
of Interest
[Dkt. No. 26], and the entire record herein, and for
the reasons
stated below,
Amtrak's Motion for Summary Judgment
shall be granted and the FOP's Cross-Motion for Summary Judgment
shall be denied.
On July 9, 2014, Amtrak filed its First Amended Complaint [Dkt.
No. 5] , which raised the same core contentions as its initial
Complaint. Amtrak's initial Complaint named FOP member and former
Amtrak Police Department officer Sarah Bryant as a Defendant. Pl.'s
Compl. ~ 3. Amtrak's First Amended Complaint names only the FOP as
a Defendant. Pl.'s First Am. Compl. ~ 2.
1
-2-
I .
BACKGROUND
A.
Factual and Procedural Background2
In May of 2008,
Sarah Bryant
("Bryant")
joined the Canine
Unit of the Amtrak Police Department ("APD").
On September 20, 2011, the Amtrak Office of Inspector General
("OIG")
and
APD's
Internal
Affairs
complaints that Bryant's supervisor,
Unit
received
William Parker
anonymous
("Parker") ,
was assigning Bryant a disproportionate share of "surge overtime"
in the Canine Unit and that Bryant and Parker jointly owned a home
in Bowie, Maryland.
On September 25,
Bryant.
At the
2012,
interview,
the OIG interviewed both Parker and
Bryant was apprised of her right to
)
remain silent in accordance with~Garrity v. State of New Jersey,
385 U.S.
493,
500
(1967)
(holding that statements obtained from
police officers under threat of termination for refusal to answer
could not be used in subsequent criminal proceedings).
However,
2
The Parties agree that there are no facts in dispute. Statement
of Material Facts in Support of Plaintiff's Motion for Summary
Judgment at 1 n.l [Dkt. No.23-2]; Statement of Facts in Support of
Defendant's Cross-Motion for Summary Judgment at 1 n.1 [Dkt. No.
25-1]. Accordingly, the facts that follow are drawn from the
Arbitrator's Decision at 1-22 [Dkt. No. 22-1].
The Parties renumbered the pages of the Arbitrator's Decision
when they compiled the Joint Administrative Record [Dkt. No. 22].
Compare Arbitrator's Decision as submitted with Pl.'s Compl. [Dkt.
No. 1-1] with Arbitrator's Decision as submitted in the Joint
Administrative Record [Dkt. No. 22-1] . The Court follows the
pagination set out in the Joint Administrative Record.
-3-
...
"[s] he was not advised of any right to
[u] nion counsel and/or
representation, or given Miranda rights, and her interview was not
recorded in any way." Arbitrator's Decision at 5. The OIG' s failure
to
take
these
three
steps
would prove
to be
critical
to
the
Arbitrator's disposition of Bryant's case.
On October 22, 2012, the OIG issued its report to the APD's
Acting Chief of Police.
The report stated that both Parker and
Bryant
statements
had
made
false
and
omissions
about
their
relationship and joint ownership of the Maryland home during their
interviews with OIG and in previous interviews with APD Internal
Affairs.
The
report
relationship created a
violations
also
stated
conflict of
of Amtrak policy,
that
Bryant
interest,
and noted a
and
Parker's
described various
likely violation of
Maryland's criminal code. See Arbitrator's Decision at 5-7. 3
On November
19,
2012,
the
Acting
Chief
of
Police
administrative charges against Bryant. On December 3,
APD
gave
Bryant
the
opportunity
to
resign
rather
issued
2012,
than
the
be
terminated. She declined the offer and was terminated. 4
On April 9,
2013,
pursuant to the grievance procedure set
forth in the Collective Bargaining Agreement
("CBA"), A.R.
259-
The potentially criminal conduct occurred in 2005 and has never
been prosecuted. Def.'s Reply at 1 n.1.
3
4
Parker, likewise, was terminated.
-4-
320
[Dkt. No. 22-2], between Amtrak and Bryant's union,
the FOP,
Bryant appealed her termination to an Arbitrator. On November 15,
2013, Arbitrator Joan Parker (no relation to William Parker) held
a hearing regarding Bryant's termination, and on January 31, 2014,
Amtrak and the FOP submitted post-hearing briefs.
On March 24, 2014, the Arbitrator issued her Decision, holding
that Amtrak
did not
have
just
cause
to
discharge
Bryant.
The
Decision ordered Amtrak to reinstate Bryant to her prior position
with her previous level of seniority,
back pay,
and retroactive
payment of benefits. Arbitrator's Decision at 22.
The Arbitrator's Decision rests entirely on the OIG's failure
to: 1) advise Bryant of her right to union representation; 2) read
Bryant her Miranda rights; and 3) record her interview. A section
of the CBA between Amtrak and the FOB contains extensive procedures
that govern internal investigations of APD officers. Arbitrator's
Decision at 3-4. This section, entitled "Rule 50-Police Officers
Bill of Rights," includes the following relevant provisions:
In an effort to ensure that these interrogations [of APD
employees] are conducted in.a manner which is conducive
to good order and discipline, the following guidelines
are promulgated:
2. The employee shall be advised of his [or her] right
to an adjournment in order to have the Organization's
[i.e., FOP's] counsel (or his [or her] designee) and/or
Organization representative present.
-5-
4. If an employee is under arrest or is likely to be,
that is, if he [or she] is a suspect or the target of a
criminal investigation, he [or she] shall be given
[their] rights pursuant to the Miranda decision.
7. The complete interrogation of the employee shall be
recorded mechanically or by a stenographer. All recesses
called during the questioning shall be noted. The
employee or the Organization's counsel (or his [or her]
designee) shall be entitled to a transcript of such
stenographic record within a reasonable time after such
interrogation.
8. The Department shall afford an opportunity for an
employee, if he [or she] so requests, to consult with
counsel and/or with a representative of the Organization
before being questioned concerning a violation of the
Rules and Regulations; provided the interrogation is not
unduly delayed. The employee shall have the right to
have the Organization's counsel
(or his
[or her]
designee) and/or Organization representative present to
assist him [or her] during the interrogation.
Arbitrator's Decision at 3-4. 5
Rule 50 of the Bill of Rights provides additional protections
that go far beyond those afforded to members of the public who may
interact with APD officers. For example, before any internal
investigation
including those involving suspected criminal
conduct by APD officers -- the officer under investigation "shall
be informed of the nature of the inquiry before any interrogation
commences, including the. name of the complainant." Arbitration
Record at 300-01 [Dkt. No. 22-2]. "If it is known that an employee
is the target of a criminal investigation or a witness only, he
[or she] should be so informed at the initial contact." Id.
5
In contrast with oft-used interrogation tactics employed with
suspects of criminal activity, Rule 50 requires that "[t] he
interrogation of an employee shall be at a reasonable hour,
preferably when the employee is on duty, unless the exigencies of
the interrogation dictate otherwise."
Id.
Moreover,
"[t]he
questioning shall not be overly long.
. Time shall also be
provided for personal necessities, meals, telephone call(s) and
rest periods as are reasonably necessary." Id. Finally,~ " [t] he
employee shall not be subject to any offensive language, nor shall
-6-
Relying on the Railway Labor Act ( "RLA"), 45 U.S. C.
et
~'
the Inspector General Act of 1978
U.S.C. App. 3
§
1 et
~'
§
151
( "IG Act"),
5
and the Supreme Court's decision
in Nat'l Aeronautics & Space Admin. v. Fed. Labor Relations
Auth. ("NASA"), 527 U.S. 229 (1999), the Arbitrator concluded
that Rule SO's protections apply to investigations conducted
by the OIG. The Amtrak OIG is not specifically mentioned in
Rule 50, and the OIG was not a signatory to the CBA. However,
the
Arbitrator
reasoned
containing Rule 50,
that
Amtrak
agreed
the
and the OIG is a part of Amtrak,
therefore,
Rule 50 is binding on the OIG.
failed
afford
to
to
Bryant
the
benefits
of
CBA
and,
Because the OIG
Rule
50,
the
Arbitrator held that her·termination was unwarranted.
On
April
22,
2014,
Amtrak
filed
its
Complaint
and
Petition to Vacate Arbitration Award under the Railway Labor
Act
[Dkt. No.
1], contending,
among other things,
that the
Arbitrator's application of Rule 50 to an OIG investigation
violates the clearly established public policy of Inspector
General independence reflected in the IG Act. On July 9, 2014,
Amtrak filed its First Amended Complaint [Dkt. No. 5], which
he [or she] be threatened with transfer, dismissal or other
disciplinary punishment. No promises or reward shall be made as an
inducement to answering questions." Id.
-7-
contains substantially similar allegations. On September 26,
2014, Defendant FOP filed its Answer [Dkt. No. 9].
On July 10,
2015, Amtrak filed its Motion for Summary
Judgment [Dkt. No. 23], and on August 14, 2015, the FOP filed
its Combined Cross-Motion for Summary Judgment and Opposition
[Dkt.
No.
25].
On
September
11,
2015,
Amtrak
filed
its
Combined Opposition and Reply [Dkt. No. 27]. On September 11,
2015,
No.
the United States filed a Statement of Interest
26]. On October 9,
2015,
the FOP filed its Reply
[Dkt.
[Dkt.
No. 28] .
B.
Statutory Background
1.
Inspector General Act
Congress enacted the Inspector General Act of 1978 "to create
. to conduct and supervise
independent and objective units
audits and investigations related to the programs and operations"
of federal agencies.
5 U.S.C. App.
3
§
2(1). Under the IG Act,
each agency's Inspector General is appointed by the President with
the advice and consent of the Senate, and is subject only to the
"general supervision" of the head of his or her agency or "the
officer next in rank below such head [.]" Id.
§
3 (a).
Although Inspectors General are supervised by the heads of
their
re spec ti ve
agencies,
they
enjoy
broad
independence.
"Congress did not intend that the power of 'general supervision'
-8-
given to the two top agency heads could be used to limit or restrict
the investigatory power of the Inspector General." U.S. Nuclear
Regulatory Comm'n, Washington, D.C. v. Fed. Labor Relations Auth.,
25 F.3d 229,
234
(4th Cir.
1994),
as amended
(June 21,
1994).
Rather, Congress specified that "[n] either the head of the [agency]
nor the officer next in rank below such head shall prevent or
prohibit the Inspector General from initiating, carrying out, or
completing any audit or investigation, or from issuing any subpena
[sic]
during the course of any audit or investigation." 5 U.S.C.
App . 3
§
3 ( a) .
In 1988, Congress expanded the Inspector General Act to create
Off ices
of
entities,
(Oct.
Inspector
General
in
certain
designated
federal
including Amtrak. Pub. Law No. 100-504, 102 Stat. 2515
18,
1988).
Congress
vested
these
additional
Inspectors
General with the same investigative powers and independence as
their forebears. 5 U.S.C. App. 3
"head
of
the
designated
§
Federal
8G(d) (1)
entity
(guaranteeing that the
shall
not
prohibit the Inspector General from carrying out,
any
audit
or
investigation");
see
also
id.
prevent
or
or completing
§
8G(g) (1)
(incorporating the same investigative and subpoena powers provided
under Section 6 of the IG Act) .
-9-
2. Railway Labor Act
The RLA provides for the creation of CBAs between railway
employees and management and the resolution of conflicts that arise
under
Amtrak,
those
agreements.
Congress
45
the
made
See
U.S. C.
publicly-owned
§
151a.
In establishing
passenger
railroad
subject to the provisions of the RLA and its statutory scheme for
union representation and collective bargaining. See,
~,
Railway
Labor Executives 1 Ass 1 n v. Nat 1 l R.R. Passenger Corp., 691 F. Supp.
1516, 1519 (D.D.C. 1988)
("Relations between the unions and Amtrak
are governed by the Railway Labor Act[.]"); Abdul-Qawiy v. Nat'l
R.R. Passenger Corp., 2005 WL 3201271, at *1 (D.D.C. Oct. 25, 2005)
("Amtrak is a
common carrier subject to the provisions of
the
Railway Labor Act[.]").
Section 3 First (q) , of the Railway Labor Act provides that
any employee or carrier "aggrieved by any of the terms of an award"
issued by an arbitrator under the Act may file a petition for
review
§
in
United
153 First (q) .
States
District
Court.
See
45
u.s.c.
The RLA also provides that the findings of an
arbitrator may be set aside "for failure
. to comply with the
requirements of this chapter, for failure of the order to conform,
or
confine
itself,
to
matters
within
the
scope
of
the
[arbitrator's] jurisdiction, or for fraud or corruption by a member
of the [panel] making the order." Id.
-10-
II.
STANDARD OF REVIEW
Summary judgment may be granted only if the moving party has
shown that there is no genuine dispute of material fact and that
the moving party is entitled to judgment as a matter of law. See
Fed. R. Civ. P. 56(a); Celotex Corp. v. Catrett, 477 U.S. 317, 325
(1986); Waterhouse v. Dist. of Columbia, 298 F.3d 989, 991 (D.C.
Cir. 2002). As already noted, the Parties agree that there are no
facts in dispute. Statement of Material Facts in Support of Pl.'s
Mot. for Summ. J. at 1 n.1; Statement of Facts in Support of Def.'s
Cross-Mot. for Summ. J. at 1 n.l. Accordingly, the Court need only
determine whether either Party is entitled to judgment as a matter
of law. Fed. R. Civ. P. 56(a).
III. ANALYSIS
Amtrak contends that the Court must vacate the Arbitrator's
Decision and Award because the Decision conflicts with the public
policy underlying the IG Act, 5 U.S.C. App. 3
§
1 et seq. 6 Amtrak's
principal argument is that, contrary to the Arbitrator's Decision,
6
Amtrak raises two arguments in the alternative. First, it
contends that by relying on the IG Act and Supreme Court precedent,
the Arbitrator exceeded the jurisdiction conferred on her by the
RLA. Second, Amtrak contends that because the OIG report implicated
Bryant in potentially criminal conduct, Bryant's reinstatement to
her former position would conflict with the public policy of
maintaining a law-abiding police force.
Because the Court holds
that the Arbitrator's Decision conflicts with the established
public policy of Inspector General independence, it need not reach
Amtrak's secondary argument.
-11-
the investigatory powers of Inspectors General cannot be altered
or regulated by collective bargaining agreements because, if they
could, Inspectors General would lose the independence Congress set
out to give
them.
Thus,
according to Amtrak,
the Arbitrator's
Decision, which is predicated entirely on application of the CBA's
Rule
50
to
the Amtrak OIG,
conflicts with clearly articulated
Congressional policy.
A.
Review under the RLA
The standard applicable
to
judicial review of arbitration
awards under the Railway Labor Act is "among the narrowest known
to the law [.]
Union Pac. R.R. v. Sheehan, 439
11
u. s.
89, 91 (1978) .
However, while review under the RLA is limited, the Courts still
play a
role.
The
RLA itself
specifies
arbitration awards may be overturned:
with the requirements of
three
"[1]
[the RLA] ,
[2]
grounds
failure . .
[]
on which
to comply
failure
to
conform, or confine [an order] , to matters within the scope of the
[arbitrator's]
member
of
jurisdiction, or [3]
the
[panel]
making
for fraud or corruption by a
the
order.
11
45
u.s.c.
§
153
First (q) .
Our Court of Appeals has made clear that courts must also set
aside arbitration decisions and awards that are contrary to a welldefined and dominant public policy. Nw. Airlines, Inc. v. Air Line
Pilots Ass'n,
Int'l,
808 F.2d 76,
-12-
83
(D.C.
Cir. 1987); see also
Office & Prof 'l Employees Int'l Union, Local 2 v. Washington Metro.
Area Transit Auth., 724 F.2d 133, 140 (D.C. Cir. 1983)
(" [C] ourts
will not enforce an award that is contrary to law or explicit
public policy.").
However, review on public policy grounds,
like review under
the RLA's explicit provisions, is also narrow. Nw. Airlines, 808
F.2d at 83. An award may be overturned on public policy grounds
only
if
"the public policy
dominant,
and
[may]
in question
[is]
well-defined and
be ascertained by reference to the laws and
legal precedents and not from general considerations of supposed
public
interests."
Id.
(internal
citation and quotation marks
omitted); accord E. Associated Coal Corp. v. United Mine Workers
of Am.,
Dist.
17,
531 U.S.
57,
63
(2000)
(courts must consider
whether enforcement of award would "run contrary to an explicit,
well-defined,
and
dominant
public
policy,
as
ascertained
by
reference to positive law and not from general considerations of
supposed public interests"); Union Pac. R.R. Co. v. United Transp.
Union,
1072
3 F. 3d 255,
(1994)
258
("federal
(8th Cir.
1993) ,
courts
possess
cert.
denied,
authority
to
510 U.S.
vacate
arbitration awards under the Railway Labor Act on public policy
grounds . . . when those awards violate well-defined and dominant
public policies.").
-13-
B.
Collective Bargaining and the Inspector General
The public policy that Amtrak cites - -
that the Inspector
General's investigative powers may not be regulated or abridged by
CBAs -- is an explicit, well-defined, and dominant public policy.
The independence of Inspector Generals is at the heart of the IG
Act,
see,
head
~,
from
5 U.S.C.
preventing
investigations).
App.
3
8G(d) (1)
or
prohibiting
§
(prohibiting agency
Inspector
General
Our Court of Appeals and the Court of Appeals
for the Fourth Circuit have spoken directly to the question the
parties
present:
"[P]roposals
investigation procedures
[collective]
bargaining,
impinge
the
on
are
concerning
not
Inspector
appropriately
the
General-
subject
of
because to allow such bargaining would
statutory
independence
of
the
I[nspector]
G[eneral] ." See U.S. Dep't of Homeland Sec. U.S. Customs & Border
Prot.
v.
Fed.
(D.C.
Cir.
Labor Relations Auth.
751 F.3d 665,
2014); accord U.S. Nuclear Regulatory Comm'n v.
Labor Relations Auth.
Department of
751 F.3d at 666,
Homeland Security's refusal
unit
668
Fed.
("NRC"), 25 F.3d 229, 234 (4th Cir. 1994).
The controversy in DHS,
bargaining
("DHS"),
representing
employees
of
centered on the
to negotiate with a
Customs
and
Board
Protection (an agency within the Department) over the procedures
the Department's OIG would use to conduct employee interviews. The
-14-
bargaining unit's proposal at issue in DHS closely mirrored Rule
50. It provided:
that union officials receive advance notice of employee
interviews;
that
interviews be conducted at
the
worksite;
that
employer
representatives
act
professionally;
that
the
employer
representatives
provide employees with specific negotiated forms with
their rights outlined prior to conducting the interview;
and that employer representatives advise employees of
their right to union representation if the employee may
be subject to discipline or adverse action before the
interview is conducted.
Id.
The
bargaining
unit
explained
that
the
purpose
of
"the
provision at issue [wa]s to obligate all employer representatives
to
adhere
to
the []
negotiated
investigatory interviews
Border
and
Additionally,
from
[the
provisions
when
(criminal and noncriminal)
of
Protection]
bargaining
the proposal
"specifically identif ie [d]
Department
representatives
when
of
Homeland
they conduct
unit
conducting
employees."
Security's]
these
[Customs
Id.
employees
OIG as
investigations
employer
of
CBP
employees [ . ] " Id.
Citing the clear statutory foundation of Inspector General
independence, our Court of Appeals upheld the Department's refusal
to
consider
the
union's
proposal,
holding
that
proposals
to
regulate OIG investigations authorized by the IG Act are not proper
subjects of collective bargaining. Id. at 671-72 (citing 5 U.S.C.
App. 3
§
2) .
-15-
is not
The Court also noted that "[t]he important point . .
that
particular
negotiated
procedures
aspects of OIG authority under the
interfere
with
specific
Inspector General Act but,
rather, that negotiation in and of itself is antithetical to OIG
independence established by the Inspector General Act." Id. at 672
(internal quotation marks and citation omitted); see also id. at
672-73 ("To allow the [agency] and the Union, which represents the
[agency's]
apply
in
employees,
the
interviews
to
course
in
the
of
the
agency
independence
of
establishing
employee
investigatory
bargain over
the
Inspector General's
would
Inspector
rights
interviews
restrictions
on
the
statutory
[Proposals]
procedures
therefore
would
investigatory
General.
and
are
impinge
that
for
inconsistent
conducting
with
the
Inspector General's independence and the Inspector General Act."
(quoting NRC, 25 F.3d at 234)).
Notably, the DHS Court was careful to distinguish NASA, 527
U.S.
229,
the Supreme Court opinion heavily relied upon in the
Arbitrator's Decision in this case.
In NASA,
the Supreme Court
held that OIG investigators were agency "representatives" for the
purposes
of
certain
statutorily
guaranteed
rights
of
union
members. 527 U.S. at 246. NASA's holding formed the basis for the
Arbitrator's ruling that OIG is bound by Amtrak's CBA with the FOP
because it is part of Amtrak. Arbitrator's Decision at 21.
-16-
However,
as DHS makes clear, NASA cannot be stretched that
far. Instead, the DHS Court stated that the holding in NASA goes
only so far as to protect certain rights explicitly guaranteed by
statute. DHS, 751 F.3d at 671.
"[T]he [Supreme]
Court's decision
in NASA certainly does not suggest that OIG investigations can be
regulated .
. pursuant to the terms of a collective bargaining
agreement." Id.7
In short, DHS makes clear that the IG Act's public policy of
Inspector General independence would be violated if CBAs could
restrict an Inspector General's investigative authority. Because
the
Arbitrator's
investigative
Decision
powers
to
would
subject
limitations
the
contained
in
Amtrak
a
OIG's
CBA-not
a
statute--there is no question that the Decision is contrary to the
public
policy
underlying
the
IG
Act.
Thus,
the
Arbitrator's
Decision cannot stand.s
7 The Supreme Court even acknowledged in NASA that the question of
whether a collective bargaining agreement could affect an
Inspector General's investigative powers was not before it. 527
U.S. at 244 n.8. Moreover, the Court approvingly cited the Fourth
Circuit's earlier opinion holding that an agency "could not bargain
over certain procedures by which its OIG conducts investigatory
interviews." Id. (citing NRC, 25 F.3d 229).
The Court notes that the United States Government filed a
Statement of Interest on September 11, 2015 [Dkt. No. 26].
The
Government stated that the arbitrator had, in its view, committed
legal error "because Inspectors General cannot be bound by any
collective bargaining agreement purporting to place substantial
limits on their investigative authority."
The Government also
stated that the "arbitrator misread NASA." Finally, the Government
8
-17-
c.
Retroactive Application of Judicial Decisions
The FOP argues that despite the clear conflict between DHS
and the Arbitration Decision,
the DHS Court's judgment does not
justify overturning the Arbitrator's Decision because DHS was not
decided until three months after the arbitration was completed.
The Court disagrees.
First, although DHS had not yet been decided, the policy it
articulates
was
already
firmly
established.
The
policy
of
Inspector General independence is made clear in the IG Act itself.
See e.g., 5 U.S.C. App. 3
§
8G(d) (1)
("the head of the designated
Federal entity shall not prevent or prohibit the Inspector General
from
initiating,
carrying
out,
or
completing
any
audit
or
investigation, or from issuing any subpena [sic] during the course
of any audit or investigation") . Moreover,
1994,
twenty years ago in
the United States Court of Appeals for the Fourth Circuit
had reached the same conclusion as the DHS court. NRC,
229; see also NASA, 527 U.S. at 244 n.8
25 F.3d
(favorably citing NRC in
footnote) .
Second, the FOP's contention that this Court should not apply
what is now clearly binding precedent is simply incorrect.
The
relied upon the conclusion in DHS v. FLRA that "proposals
concerning Inspector General-investigation procedures are not
'appropriately the subject of bargaining,' because to allow such
bargaining 'would impinge on the statutory independence of the
IG."' DHS, 751 F.3d at 668.
-18-
Supreme Court has said that "[w]hen [it] applies a rule of federal
law
to
the
parties
before
it,
that
rule
is
the
controlling
interpretation of federal law and must be given full retroactive
effect in all cases still open on direct review and as to all
events, regardless of whether such events predate or postdate our
announcement of the rule." Harper v. Virginia Dep't of Taxation,
509 U.S.
86,
97
(1993)
("adopt [ing]
a rule that fairly reflects
the position of a majority of Justices in [James B. Beam Distilling
Co. v. Georgia, 501 U.S. 529 (1991)]").
There is no doubt that this Court must take the same approach
to decisions of our Court of Appeals. United States v. McKie, 73
F.3d 1149, 1152 (D.C. Cir. 1996)
(noting that "[l]itigants, either
civil or criminal, may [] take advantage of judicial modifications
in the law that are announced before they have exhausted their
direct appeals"). As the Court of Appeals wrote in Nat'l Fuel Gas
Supply Corp. v. F.E.R.C.,
Because the decision of an Article III court announces
the law as though it were finding it -- discerning what
the law is, rather than decreeing what it is changed to,
or what it will tomorrow be, all parties charged with
applying that decision, whether agency or court, state
or federal, must treat it as if it had always been the
law. The agency must give retroactive effect to the
ruling of a federal court because of the nature of that
court. Just as an Article III court may not issue an
advisory decision, it may not issue a decision for less
than all seasons, for some citizens and not others, as
an administrator shall later decide.
In sum,
the
decision of a federal court must be given retroactive
-19-
effect regardless whether it is being applied by a court
or an agency.
59 F.3d 1281, 1289 (D.C. Cir. 1995)
(internal brackets, ellipses,
citations, and quotation marks omitted).
D.
Showing Required
The FOP also contends that Amtrak has failed to specifically
show
how
Rule
50
would
authority.
This
explained,
"[t] he
negotiated
procedures
authority
under
argument
interfere
misses
important
the
the
point
interfere
Inspector
with
OIG's
mark.
[]
is
with
As
not
specific
General
Act
investigative
the
that
DHS
particular
aspects
but,
court
of
rather,
OIG
that
negotiation in and of itself is antithetical to OIG independence
established by the Inspector General Act." DHS,
(emphasis added)
7 51 F. 3d at 672
(internal quotation marks and citation omitted).
Thus, Amtrak need not show precisely how Rule 50 would burden the
OIG.
It is enough to nullify the Arbitrator's Decision that,
the Decision were
enforced,
Rule
conduct during employee interviews.
-20-
50
would
regulate
the
if
OIG' s
IV.
CONCLUSION
For
Judgment
the
foregoing
reasons,
shall be granted,
the
Amtrak's
FOP' s
Motion
for
Summary
Cross-Motion for
Summary
Judgment shall be denied, and the Arbitrator's Decision and Award
shall be vacated.
November
.2.:.----
1
~i&~~
Gladys Kes~r · - united States District Judge
2015
Copies to: attorneys on record via ECF
-21-
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?