NATIONAL RAILROAD PASSENGER CORPORATION v. FRATERNAL ORDER OF POLICE, LODGE 189 et al

Filing 36

MEMORANDUM OPINION to the Order denying Defendant's Motion for Reconsideration. Signed by Judge Gladys Kessler on 12/30/15. (CL)

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA

National Railroad Passenger
Corporation,
Plaintiff,
Civil Action No. 14-cv-678(GK)

v.

Fraternal Order of Police,
Lodge 189 Labor Committee,
Defendant.

MEMORANDUM OPINION

Plaintiff National Railroad Passenger Corporation, best known
as Amtrak ("Plaintiff" or "Amtrak"), brought 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.

After

a

labor

("IG Act").
dispute

between

Amtrak

and

Defendant,

the

Fraternal Order of Police, Lodge 189 Labor Committee ("Defendant"
or "the FOP")
2014,

involving one of the FOP's members,

on March 24,

an Arbitrator issued a Decision and Award in favor of the

FOP. See 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 her jurisdiction and

violated public policy with respect to Amtrak Inspector General
investigations and Amtrak police officer discipline.
On July 10,

2015,

and August 14,

2015,

the Parties

filed

Cross-Motions for Summary Judgment. See Amtrak's Mot. for Summ. J.
[Dkt. No. 23]; FOP's Cross-Mot. for Summ. J.

[Dkt. No. 25]. At the

heart of the Parties' Cross-Motions was a single legal question:
are

procedural

investigations
between

Amtrak

limitations
contained
and

the

in

on
a

FOP

the

on

internal

bargaining

collective

binding

of

agreement

conduct

the

Amtrak

Off ice

of

Inspector General? The Court concluded that they are not, and on
November 2,

2015, issued a Memorandum Opinion 1 [Dkt. No.

31] and

Order [Dkt. No. 30] granting Amtrak's Motion for Summary Judgment
and denying the FOP's Cross-Motion for Summary Judgment.
On

November

25,

2015,

Reconsideration ("Def.'s Mot.")

the

FOP

filed

a

Motion

for

[Dkt. No. 32], contending that the

"Court's November 2, 2015 Memorandum Opinion [Dkt. No. 31] contains
a number of legal errors which,

if not corrected, will result in

a manifest injustice to not only the FOP, but to any federal labor
union

subject

to

the

investigatory powers

of

their

respective

inspectors general." Def.'s Mot. at 1. On December 8, 2015, Amtrak

1

Nat'l R.R. Passenger Corp. v. Fraternal Order of Police, Lodge
189, No. 14-CV-678 (GK), 2015 WL 6692104, at *l (D.D.C. Nov. 2,
2015).
-2-

filed its Opposition ("Pl.'s Opp'n")

[Dkt. No. 33], and on December

14, 2015, the FOP filed its Reply ("Def.' s Reply")

[Dkt. No. 34].

Upon consideration of the FOP's Motion for Reconsideration,
Amtrak's Opposition, the FOP's Reply, and the entire record herein,
and for the reasons stated below, the Court finds the FOP's Motion
to be without merit, and accordingly, the Motion shall be denied.
BACKGROUND

I .

The Court assumes familiarity with its previous Memorandum
Opinion

in

this

case

and

therefore

summarizes

only

the

most

relevant facts.
On April
forth

in

Amtrak

the

and

9,

2013,

pursuant to the grievance procedure set

Collective

the'

FOP,

a

Bargaining
former

Agreement

employee

of

("CBA")

the

Amtrak

between
Police

Department ("APD") appealed her termination to an Arbitrator.
On March 24, 2014, the Arbitrator issued her Decision, holding
that Amtrak did not have just cause to discharge the former officer
because Amtrak's Off ice of Inspector General

( "OIG")

failed to

abide by certain procedural requirements contained in Rule 50 of
the Amtrak-FOP CBA during an investigatory interview of the APD
officer.
Although Rule 50 does not specifically mention the OIG, the
Arbitrator reasoned that its terms applied to OIG investigations

-3-

because Amtrak agreed to the CBA containing Rule 50, and the OIG
is part of Amtrak's workforce.
As

a

remedy

for

the

officer's

wrongful

termination,

the

Arbitrator ordered Amtrak to reinstate the officer to her prior
position

with

her

previous

level

of

seniority,

back pay,

and

retroactive payment of benefits. Arbitrator's Decision at 22 [Dkt.
No. 22-1].
The Arbitrator did not reach any other issues raised by the
Parties and rested her Decision and Award entirely upon the OIG's
failure to comply with Rule 50. Id.

("[Amtrak] did not have just

cause to discharge Grievant Sarah Bryant because the procedural
safeguards

guaranteed to

employees by Rule

50

were not

afforded her during the . . . Amtrak OIG interrogation.").
Upon review of the Arbitrator's Decision, the Court held that
application of Rule 50 to the OIG is contrary to the explicit,
well-defined,

and

dominant

public

policy

of

Inspector

General

independence. Mem. Op. at 14 (citing the Inspector General Act, 5
U.S.C. App. 3

§

8G(d) (1)). The Court noted that

Our Court of Appeals and the Court of Appeals for the
Fourth Circuit have spoken directly to the question the
parties present:
"[P]roposals concerning
Inspector
General-investigation procedures are not appropriately
the subject of [collective] bargaining, because to allow
such
bargaining
would
impinge
on
the
statutory
independence of the I [nspector] G [eneral]." See U.S.
Dep't of Homeland Sec. U.S. Customs & Border Prot. v.
Fed. Labor Relations Auth. ("DHS"), 751 F. 3d 665, 668
-4-

(D.C. Cir. 2014); accord U.S. Nuclear Regulatory Cornm'n
v. Fed. Labor Relations Auth. ("NRC"), 25 F.3d 229, 234
(4th Cir. 1994).
Mem. Op. at 14.
II.

STANDARD OF REVIEW

A motion for reconsideration under Fed. R. Civ. P. 59(e)
is "discretionary and need not be granted unless the district
court finds that there is an intervening change in controlling
law, the availability of new evidence, or the need to correct
a clear error or to prevent manifest injustice." Ciralsky v.
CIA, 355 F.3d 661, 671 (D.C. Cir. 2004)

(quoting Firestone v.

Firestone, 76 F.3d 1205, 1208 (D.C. Cir. 1996)). Importantly,
"Rule 59(e) motions are aimed at reconsideration, not initial
consideration." GSS Grp.
805,

812

marks,

and

(D.C.

Cir.

ellipses

Ltd v.

2012)

Nat'l Port Auth.,

(internal

omitted) .

citations,

"Accordingly,

a

680 F.3d
quotation

Rule

5 9 ( e)

motion may not be used to raise arguments or present evidence
that could have been raised prior to the entry of judgment."
Id.

(internal

citations,

quotation

marks,

and

ellipses

omitted).
III. ANALYSIS

The FOP contends that the Court's Memorandum Opinion in
this

case

contains

a

number of legal

correction. According to the FOP,

-5-

errors

that

require

these errors include the

Court's failure 1) to address the FOP's argument that sources
~

of law beyond the CBA limited the OIG's investigative powers
in the same manner as Rule 50, 2) to balance the policy goals
of the Railway Labor Act and the Inspector General Act, and
3) to prevent Amtrak from outsourcing internal investigations
to its OIG instead of conducting them through the APD's Office
of Internal Affairs ("OIA"). The Court finds none of the FOP's
contentions to be compelling.
A.

In

Other Limitations on OIG Investigative Powers

its

Cross-Motion

for

Summary

Judgment,

Defendant

relied on Quality Standards of Investigations ("QSis"), which
are

issued

by

the

Council

of

the

Inspectors

General

on

Integrity and Efficiency ("CIGIE"), to show that the CBA did
nothing more

than

binding on the OIG.
("Given

that

standards set

reassert
Def.' s

Amtrak's
forth

OIG

limitations
Cross-Mot.

that
for

Summ.

incontrovertibly

in the Council's QSI

were
J.

already
at

follows

[sic],

27
the

it is as

disingenuous as it is hypocritical for Amtrak to suggest that
its OIG is somehow immune from the strictures of Rule 50[.]").
According to the FOP,

"in demanding that Amtrak's OIG

honor the due-process protections guaranteed under Rule 50,
the FOP is not imposing any further restrictions upon Amtrak
OIG' s

independence

than

those

which
-6-

Congress

has

already

imposed via the Inspector General Reform Act of 2008." Def.'s
Reply at 13 (section heading written in all caps in original).
The
altogether

FOP

contends

the

FOP's

that

"[t]he

argument

Court

erred

concerning

by

the

ignoring
statutory

restrictions that Congress -- not Amtrak or the FOP -- placed on
Amtrak's- inspector general when Congress created the Council of
the Inspectors General on Integrity and Efficiency[.]" Def.'s Mot.
at

1.

According to

the

FOP,

"the Court

failed to make even a

passing reference to the CIGIE or the [QSis] the CIGIE promulgates
standards by which Amtrak's [OIG] was statutorily bound to abide
as a member of CIGIE[.J" Def.'s Mot. at 2.
The FOP continues, "The Court was and is obligated to address
in at least some fashion all of the arguments that the FOP raised
in its briefs in defense against Amtrak's lawsuit. To refuse to do
so

invites an unnecessary remand on appeal."

(emphasis in original) .

It reasons,

Def.' s

Mot.

at

2

"[h] ad this Court performed

even a cursory review of those standards in its Memorandum Opinion,
it would have been hard-pressed to deny that the CIGIE imposes
almost identical restrictions upon its OIG members in conducting
their respective investigations as those set forth in Rule 50 of
the collective negotiations agreement between Amtrak and the FOP."
Def.'s Mot. at 6.

-7-

Defendant's argument, however, ignores the Court's discussion
on page 20 of its Memorandum Opinion, where the Court stated:
The FOP also contends that Amtrak has failed to
specifically show how .Rule 50 would interfere with OIG's
investigative authority. This argument misses the mark.
As the OHS court explained, "[t]he important point [] is
not that particular negotiated procedures interfere with
specific aspects of OIG authority under the Inspector
General Act but, rather, that negotiation in and of
itself is antithetical to OIG independence established
by the Inspector General Act." OHS, 751 F.3d at 672
(emphasis added) (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,
if the Decision were
enforced, Rule 50 would regulate the OIG's conduct
during employee interviews.
Mem. Op. at 20 (emphasis added in the Memorandum Opinion).
The FOP's contention that the Arbitrator correctly enforced
Rule 50 of the CBA because it imposed no additional restrictions
on the OIG is not convincing because it relies on an inquiry into
which negotiated procedures

interfere with OIG authorities and

which do not. Our Court of Appeals had stated squarely that such
an inquiry conflicts with the OIG Act. OHS, 751 F.3d at 672.
It is true that the Court does not discuss the intricacies of
the QSis or the CIGIE or any other pre-existing 'restrictions on
the OIG's authority. No discussion is necessary -- indeed, such an
inquiry would conflict with OHS,

in which our Court of Appeals

ruled that "negotiation in and of itself is antithetical to OIG
independence established by the Inspector General Act." OHS,
-8-

751

F.3d at 672. Even if a CBA included negotiated procedures mirroring
restrictions already incumbent on the OIG,

the terms of the CBA

would not be directly binding on the OIG. 2
B.

The IG Act and the Railway Labor Act

The FOP next claims that "[t]he Court also failed to perform
any analysis whatsoever of the interplay between the statutory
independence afforded to inspectors general under the Inspector
General Act

[]

and the equal

if not

superior

--

statutory

importance of free and uninhibited labor relations promoted by the
Railway Labor Act ("RLA") ." Def.'s Mot. at 2. "Because Rule 50 of
the parties' collective negotiations agreement imposes no further
restrictions upon the independence of Amtrak's inspector general
to conduct investigations than those restrictions set forth by the
CIGIE in the QSI, this Court erroneously concluded that the public
policy goals of the [IG Act] trump the [RLA's] longstanding aim of
promoting

and

ensuring

labor

stability

through

collective

negotiations." Id.
2

The FOP claims that Congress itself has imposed restrictions on
OIG's authority similar to those of Rule 50. Def.'s Mot. at 1. The
FOP is incorrect. 5 U.S.C. App. 3 § ll(c) (2) requires Inspectors
General to "adhere to professional standards developed by the
Council" "[t]o the extent permitted under law[.]" The FOP believes
that those standards, the QSis, mirror the provisions of Rule 50.
But as § 11 (c) (2) makes clear, the QSis are not established by
Congress but by the Council of Inspectors General on Integrity and
Efficiency. Moreover, if the QSis, which are merely "professional
standards developed by the [CIGIE]," conflict with a Congressional
command, clearly, the QSis must yield. Id.
-9-

To a large extent,

this argument merely restates the last,

and so the Court again refers the FOP to our Court of Appeals'
holding

in

DHS

that

"proposals

investigation procedures
[collective]

bargaining,

impinge

on

the

G[eneral] ."

DHS,

omitted).

are

not

Inspector

appropriately

the

General-

subject

of

because to allow such bargaining would

statutory
751

concerning

F.3d

independence
at

668

of

(internal

the

I[nspector]

quotation

marks

It does not matter whether "Rule 50 of the parties'

collective negotiations agreement imposes no further restrictions
upon the independence of Amtrak's inspector general to conduct
investigations." Def.'s Mot. at 2. Negotiation itself is what is
not allowed. Moreover, the DHS court's unambiguous statement makes
clear that the policy of OIG independence takes precedence over
"the Railway Labor Act's longstanding aim of promoting and ensuring
labor stability through collective negotiations," Def.'s Mot. at 2
(emphasis added). See Memorandum Opinion at 14-17 (section titled
"Collective Bargaining and the Inspector General") .
True,
Federal
5 U.S.C.

the labor-relations statute at issue in DHS was the

Service
§

Labor-Management

7101 et seq.,

Relations

Statute

("FSLMRS"),

rather than the Railway Labor Act, but

the FOP has provided no reason why the two analogous regimes should
receive different treatment.

Indeed,

the FOP cites another case

considering the FSLMRS -- not the Railway Labor Act -- to support
-10-

its arguments.

Def.' s Mot.

at 8

(citing U.S. Nuclear Regulatory

Comm'n v. Fed. Labor Relations Auth.
(4th Cir.
that

1994)

the

(Murnaghan,

policies

J.

underlying

("NRC"), 25 F.3d 229, 236-37

dissenting)

for the proposition

labor-relations

statutes

and

the

Inspector General Act are deserving of equal consideration) . 3
For these reasons,
Memorandum

Opinion,

the Court concludes,

that

the

principle

of

as it did in its
Inspector

General

independence underlying the IG Act prevails over the collective
bargaining
statutes.

rights

established

Consequently,

by

the

the

federal

FOP's

labor

second

relations
for

ground

reconsideration is without merit.
C.

The

Internal Investigations and the OIG

FOP' s

appreciate

the

final

argument

consequences

is
of

that
its

"the Court failed

decision

to

vacate

[]

to

[the]

Arbitrator['s] March 24, 2014 [Decision] and Award -- namely, the
tacit endorsement of Amtrak's calculated effort to make a complete
end-run

around

the

due

process

protections

that

unmistakably

govern APO [Office of Internal Affairs ("OIA")] investigations and
to
3

instead rely solely upon the poisoned fruits

of Amtrak OIG

The Court also notes that the FOP cites a dissent for the core
of its argument. Def.'s Mot. at 8 ("This fundamental truth mirrors
Circuit Judge Murnaghan's dissent in [NRC], 25 F.3d [at 236-37]").
The NRC majority, which our Court of Appeals favorably cites in
OHS, held that Inspector General independence does, indeed, take
precedence over collective-bargaining rights. See NRC, 25 F.3d at
234-35; DHs·, 751 F.3d at 668.
-11-

investigations in meting out discipline to its employees." Def.'s
Mot. at 9. The FOP fears that the Court's decision will lead to "a
systemic practice of outsourcing all future APD OIA investigations
to Amtrak's
select

inspector general

investigations

for

-- or,

at

the very least,

which Amtrak has

a

vested,

those

tactical

interest in shirking its contractual obligation to afford dueprocess protections prior to their commencement."

Id.

at

9-10.

"Such a role[,]" the FOP concludes, "is not what either Congress
or President Carter envisioned for OIGs nationwide when those two
co-equal branches of government enacted the Inspector General Act
in 1978." Id. at 10.
The FOP's final argument is that it is a violation of the IG
Act itself for Amtrak to use the findings from an OIG investigation
("poisoned fruit")

to "met[e] out discipline to its employees[.]"

Def.'s Mot. at 9. This is a new argument which the FOP failed to
raise in its Cross-Motion for Summary Judgment. The FOP points to
language from its initial briefs indicating its fear that Amtrak
would outsource internal

investigations to its OIG.

See Def.' s

Reply at 41. However, there is no hint in its initial briefs that
such a course of action would violate the IG Act. Since Defendant
could have raised this argument in its Cross-Motion and failed to
do so, the argument shall not be considered at this late date. GSS
Grp. Ltd, 680 F.3d at 812.
-12-

Finally,

to the extent that the FOP is simply voicing its

policy concerns about the practical effects of the IG Act on agency
operations, it must direct those concerns to Congress. This Court
cannot provide the remedy that the FOP seeks.
IV.

CONCLUSION

For

the

foregoing

reasons,

the

FOP's

Motion

for

Reconsideration [Dkt. No. 32] shall be denied.

Glady~ler
United States District Judge

December 3...1;2_, 2015

Copies to: attorneys on record via ECF

-13-