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Obama Non-Deportation Policy Case — Crane v Napolitano - Plaintiffs Supplemental Brief in Support of Motion for Preliminary Injunction

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					 Case 3:12-cv-03247-O Document 63 Filed 05/07/13         Page 1 of 23 PageID 1127



                     IN THE UNITED STATES DISTRICT COURT
                     FOR THE NORTHERN DISTRICT OF TEXAS
                               DALLAS DIVISION

CHRISTOPHER L. CRANE, DAVID A.          )
ENGLE, ANASTASIA MARIE                  )
CARROLL, RICARDO DIAZ,                  )
LORENZO GARZA, FELIX                    )
LUCIANO, TRE REBSTOCK,                  )
FERNANDO SILVA, SAMUEL                  )
MARTIN, and JAMES D. DOEBLER            )
     Plaintiffs,                        )
                                        )       Civil Action No. 3:12-cv-03247-O
        v.                              )
JANET NAPOLITANO, in her official )
capacity as Secretary of Homeland       )
Security, JOHN MORTON, in his           )
official capacity as Director of        )
Immigration and Customs Enforcement, )
and ALEJANDRO MAYORKAS, in his )
official capacity as Director of United )
States Citizenship and Immigration      )
Services                                )
        Defendants.                     )
______________________________________________________________________________

        AMENDED SUPPLEMENTAL BRIEF IN SUPPORT OF PLAINTIFFS’
            APPLICATION FOR PRELIMINARY INJUNCTIVE RELIEF
______________________________________________________________________________




P. MICHAEL JUNG                          KRIS W. KOBACH
Texas Bar No. 11054600                   Kansas Bar No. 17280 (admitted pro hac vice)

Strasburger & Price, LLP                 Kobach Law, LLC
901 Main Street, Suite 4400              4701 N. 130th St.
Dallas, Texas 75202                      Kansas City, Kansas 66109
Telephone: 214-651-4300                  Telephone: 913-638-5567


                              Attorneys for Plaintiffs
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                                                    TABLE OF CONTENTS


Table of Contents............................................................................................................................. i

Table of Authorities ....................................................................................................................... iii

Argument and Authorities............................................................................................................... 1

           I.         THE CSRA EXPRESSLY EXCLUDES DISPUTES WHERE THE
                      ADVERSE EMPLOYMENT ACTION IS LESS THAN FOURTEEN
                      DAYS...................................................................................................................... 1

           II.        THE COLLECTIVE BARGAINING AGREEMENT IS LIMITED
                      TO CONDITIONS OF EMPLOYMENT AND EXPRESSLY
                      EXCLUDES DISPUTES OVER THE AGENCY MISSION. .......................... 4

                      A.         The Agreement Limits Bargaining to Conditions of
                                 Employment............................................................................................... 5

                      B.         The Agreement Expressly Excludes from Bargaining the
                                 Agency’s Mission and the Assignment of Work..................................... 7

           III.       FEDERAL LAW PROHIBITS COLLECTIVE BARGAINING
                      THAT RESTRICTS THE AUTHORITY OF AGENCY
                      MANAGEMENT TO DETERMINE THE AGENCY’S MISSION OR
                      TO ASSIGN WORK............................................................................................. 8

           IV.        THE DEFENDANTS HAVE DEMONSTRATED THAT THEY DID
                      NOT REGARD THE MEMORANDUM AND DIRECTIVE TO BE
                      NEGOTIABLE.................................................................................................... 10

                      A.         The Defendants Have Treated the Substance of the Morton
                                 Memorandum As Not Subject to Bargaining....................................... 10

                      B.         The Mere Fact that Plaintiff Crane Sent a “Demand to
                                 Bargain” Letter Does Not Bring the Substance of the Morton
                                 Memorandum Within the Terms of the CBA. ..................................... 12

                      C.         The Defendants Sent Additional Letters Reiterating Their
                                 Position That the Substance of the Morton Memorandum Was
                                 Not Subject to Bargaining. ..................................................................... 13

                      D.         The Defendants Have Treated the Substance of the Directive
                                 As Not Subject to Bargaining................................................................. 15

Conclusion .................................................................................................................................... 15



SP-#4819122-v1-Crane_Amended_Supplemental_Brief_in_Support_of_Motion_for_Preliminary_Injunction.DOCX
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Certificate of Service .................................................................................................................... 17




                                                                    -ii-
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                                              TABLE OF AUTHORITIES


Cases


AFGE Local 3511 and VA Hosp. San Antonio,
     12 F.L.R.A. 76 (1983)......................................................................................................... 8

Bush v. Lucas,
       462 U. S. 367 (1983)........................................................................................................... 2

Dept. of Air Force, Scott AFB and NAGE Local R7-23,
       35 F.L.R.A. 844 (1990)..................................................................................................... 11

Elgin v. Department of the Treasury,
        567 U.S. ___, 132 S. Ct. 2126 (2012)................................................................................. 1

Espenschied v. Merit Systems Protection Board,
      804 F.2d 1233 (Fed. Cir. 1986), cert. denied, 481 U.S. 1017 (1987)................................. 5

Giles v. General Electric Co.,
        245 F.3d 474 (5th Cir. 2001) ............................................................................................ 13

Manning v. Merit Systems Protection Board,
      742 F.2d 1424 (Fed. Cir. 1984)........................................................................................... 3

Moore v. United Services Automobile Ass’n,
      808 F.2d 1147 (5th Cir. 1987) .......................................................................................... 13

National Treasury Employees Union v. FLRA,
       691 F.2d 553 (D.C. Cir. 1982) ............................................................................................ 9

Overseas Educ. Ass’n v. FLRA,
      961 F.2d 36 (2d Cir. 1992).................................................................................................. 9

Perez v. Merit Systems Protection Board,
       931 F.2d 853 (Fed. Cir. 1991)............................................................................................. 3

Rosano v. Department of the Navy,
      699 F.2d 1315 (Fed. Cir. 1983)........................................................................................... 3

Schmittling v. Department of the Army,
       219 F.3d 1332 (Fed. Cir. 2000)........................................................................................... 3

Thomas v. United States,
      709 F.2d 48 (Fed. Cir. 1983)............................................................................................... 3




                                                                 -iii-
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United States Dep’t of Justice v. Federal Labor Rel. Auth.,
       727 F.2d 481 (5th Cir. 1984) .............................................................................................. 9

United States Dep’t of Justice, INS v. Federal Labor Rel. Auth.,
       995 F.2d 46 (5th Cir. 1993) ................................................................................................ 9

Verizon Md. Inc. v. Public Serv. Comm’n,
       535 U.S. 635 (2002)............................................................................................................ 4

Whitman v. Department of Transportation,
      547 U.S. 512 (2006)............................................................................................................ 4


Statutes


28 U.S.C. § 1331................................................................................................................... 1, 4, 15

5 U.S.C. § 706................................................................................................................................. 1

5 U.S.C. § 7106......................................................................................................................... 9, 14

5 U.S.C. § 7106(a) ........................................................................................................ 8, 12, 14, 15

5 U.S.C. § 7106(a)(1)...................................................................................................................... 8

5 U.S.C. § 7106(a)(2)(B) ................................................................................................................ 8

5 U.S.C. § 7106(b (3).................................................................................................................... 11

5 U.S.C. § 7106(b)(1) ..................................................................................................................... 9

5 U.S.C. § 7106(b)(2) ................................................................................................................... 11

5 U.S.C. § 7121............................................................................................................................... 4

5 U.S.C. § 7121(a)(1)...................................................................................................................... 4

5 U.S.C. § 7121(a)(2)...................................................................................................................... 4

5 U.S.C. § 7511............................................................................................................................... 2

5 U.S.C. § 7512..................................................................................................................... 1, 2, 15

8 U.S.C. § 1225............................................................................................................................... 2

8 U.S.C. § 1225(b)(2)(A).............................................................................................................. 12




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Legislative Materials


H. Rep. No. 95-969, 95th Cong., 2d. Sess. (1978) ......................................................................... 9


Administrative Materials


5 C.F.R. § 1201.3(a)(1)................................................................................................................... 1

5 C.F.R. § 1201.3(c)(1)................................................................................................................... 4




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                              ARGUMENT AND AUTHORITIES

         On April 23, 2013, the Court ordered the parties to submit supplemental briefs addressing

the effect of the Collective Bargaining Agreement (CBA) and the Civil Service Reform Act

(CSRA) on the Court’s jurisdiction to hear the case. As the following analysis explains, neither

the CBA nor the CSRA applies to the legal dispute in this case. Accordingly, jurisdiction lies in

this Court under 28 U.S.C. § 1331, and review may occur pursuant to the Administrative Proce-

dure Act (APA), 5 U.S.C. § 706.

I.       THE CSRA EXPRESSLY EXCLUDES DISPUTES WHERE THE AD-
         VERSE EMPLOYMENT ACTION IS LESS THAN FOURTEEN DAYS.

         The defendants contend that the CSRA deprives this Court of jurisdiction to hear the

statutory and constitutional claims in this case. They claim that the CSRA established the “ex-

clusive administrative procedures for resolving grievances” for federal employment disputes,

including matters covered by collective bargaining agreements. Def. Resp. 9. But the defen-

dants have repeatedly neglected to address the fact that some disciplinary actions fall below the

threshold necessary to trigger the jurisdiction of the Merit Systems Protection Board (MSPB)

under the CSRA.

         “Covered” actions defined by the CSRA, over which the MSPB has jurisdiction, are the

following enumerated adverse actions:

         (1) a removal;
         (2) a suspension for more than 14 days;
         (3) a reduction in grade;
         (4) a reduction in pay; and
         (5) a furlough of 30 days or less….

5 U.S.C. § 7512; see also 5 C.F.R. § 1201.3(a)(1). CSRA review does not cover adverse em-

ployment actions that are not included in this list—such as a suspension for only three days.

         The Supreme Court discussed the scope of the CSRA at length in Elgin v. Department of


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the Treasury, 132 S. Ct. 2126 (2012), holding that the reviewable actions are plainly defined by

the list in 5 U.S.C. § 7512. “The reviewable agency actions are removal, suspension for more

than 14 days, reduction in grade or pay, or furlough for 30 days or less. § 7512.” 132 S. Ct. at

2130. The statute “specifically enumerates the major adverse actions and employee classifica-

tions to which the CSRA’s procedural protections apply. 5 U.S.C. §§ 7511, 7512.” Id. at 2133.

Accordingly, the Court concluded that the CSRA’s jurisdiction is not based on “amorphous dis-

tinctions” such as ones focused on nature of an employee’s claim; rather it is based on the

clearly-demarcated lines established by the type of employee and the terms of the adverse action.

Id. at 2136. “[T]he better interpretation of the CSRA is that its exclusivity does not turn on the

constitutional nature of an employee’s claim, but rather on the type of the employee and the chal-

lenged employment action.” Id. In addition, the Supreme Court has specifically stated that sus-

pensions for 14 days or less are not covered by the MSPB. “Not all personnel actions are cov-

ered by this system. For example, there are no provisions for appeal of either suspensions for 14

days or less ….” Bush v. Lucas, 462 U.S. 367, 385 n.28 (1983) (emphasis supplied).

       Plaintiff James Doebler – a plaintiff specifically threatened with adverse employment ac-

tion when he commenced removal proceedings pursuant to the requirements of 8 U.S.C. § 1225

and against the orders of his supervisors – was threatened with suspension for a non-appealable

term that lies outside the scope of the CSRA, specifically three days. See Doebler Affidavit. At

no point in this litigation have defendants stated an intention to impose a suspension of more

than fourteen days upon ICE officers who defy orders not to initiate removal proceedings. Nor

have the defendants offered any example of an ICE officer who was ever suspended for more

than fourteen days doing so. Thus, there is no evidence before this Court to suggest that the pen-

alties imposed upon officers who follow 8 U.S.C. § 1225 by commencing removal proceedings




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would fall within the scope of the CSRA.

       Consistent with the clearly limited jurisdiction of the MSPB, the Federal Circuit has re-

peatedly declined to find jurisdiction where the adverse action in question is not among those

specified in the CSRA. “If [the MSPB] lacks jurisdiction, the Board is without authority to de-

cide the issues presented by a petitioner. ‘The [Board] has only the jurisdiction conferred on it

by Congress.” Schmittling v. Department of the Army, 219 F.3d 1332, 1337 (Fed. Cir. 2000)

(quoting Thomas v. United States, 709 F.2d 48, 49 (Fed. Cir. 1983)). Other litigants have at-

tempted to invoke the jurisdiction of the MSPB by construing the adverse action taken against

them as suspensions of more than 14 days. But the Federal Circuit has been appropriately un-

willing to expand the Board’s jurisdiction beyond the express terms of the statute. See Perez v.

Merit Systems Protection Board, 931 F.2d 853, 855 (Fed. Cir. 1991) (“We hold that in a situation

such this, where an employee has voluntarily absented himself from work, placement in a non-

pay or AWOL status, even for longer than 14 days, is not a constructive suspension or other

agency action appealable to the MSPB”). The Federal Circuit has been similarly unwilling to

construe other adverse actions as falling within the four corners of the CSRA’s statement of

MSPB jurisdiction. See Manning v. Merit Systems Protection Board, 742 F.2d 1424, 1425-27

(Fed. Cir. 1984) (reassignment of employee was not an adverse action within the MSPB’s juris-

diction); Rosano v. Department of the Navy, 699 F.2d 1315 (Fed. Cir. 1983) (refusal to prorate

employee’s health insurance premiums was not adverse action within MSPB’s jurisdiction).

       In these cases, as in the instant case, where an employee has been threatened with disci-

plinary action that is not subject to CSRA procedures, the employee may bring suit under the

APA for violating the substantive provisions of federal law. As the Supreme Court has made

clear, the CSRA does not divest Article III courts of jurisdiction over all federal statutory or con-




                                                -3-
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stitutional claims by federal employees. If a case does not involve an adverse action that falls

within the clearly-defined boundaries of the CSRA, federal district courts retain their jurisdiction

that is conferred on them by 28 U.S.C. § 1331:

         Another statute, however – a very familiar one – grants jurisdiction to the federal
         courts over ‘all civil actions arising under the Constitution, laws, or treaties of the
         United States.’ 28 U.S.C. § 1331. The question, then, is not whether 5 U.S.C.
         § 7121 confers jurisdiction [on the federal courts], but whether § 7121 (or the
         CSRA as a whole) removes the jurisdiction given to the federal courts….

Whitman v. Department of Transportation, 547 U.S. 512, 513-14 (2006) (citing Verizon Md. Inc.

v. Public Serv. Comm’n, 535 U.S. 635, 642 (2002)). In the instant case, there is no adverse ac-

tion that brings this matter within the jurisdiction of the MSPB. 1 This Court therefore retains its

jurisdiction under 28 U.S.C. § 1331.

II.      THE COLLECTIVE BARGAINING AGREEMENT IS LIMITED TO
         CONDITIONS OF EMPLOYMENT AND EXPRESSLY EXCLUDES DIS-
         PUTES OVER THE AGENCY MISSION.

         The CSRA allows for some disputes to be handled through negotiated grievance proce-

dures that may be laid out in a collective bargaining agreement, rather than through appeal to the

MSPB. 5 U.S.C. § 7121; see also 5 C.F.R. § 1201.3(c)(1). However, the CSRA plainly states

that for a collective bargaining agreement to apply, the grievance must “fall within [the agree-

ment’s] coverage.” 5 U.S.C. § 7121(a)(1). An agreement may also “exclude any matter from

the application of the grievance procedures which are provided for in the agreement.” 5 U.S.C.

§ 7121(a)(2). “In general, if an employee is covered by a collective bargaining agreement, mat-

ters that customarily would be within the board’s jurisdiction are deemed to be covered by the


1
  Another reason that the MSPB would lack jurisdiction to hear this case is that it only has jurisdiction to retrospec-
tively review a punishment that has already occurred. Cruz v. Department of Navy, 934 F.2d 1240, 1243 (Fed. Cir.
1991) (“The Board has only that jurisdiction conferred on it by Congress. … Because mere proposals to remove are
not listed in § 7512, they are not appealable adverse actions in themselves and the Board has no jurisdiction over
them.”). In contrast, this Court has jurisdiction to prospectively adjudicate the imminent threat of punishment.




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negotiated grievance procedure and thus beyond the board’s jurisdiction, unless the collective

bargaining agreement specifically excludes a matter from application of the grievance proce-

dure.” Espenschied v. Merit Systems Protection Board, 804 F.2d 1233, 1236 (Fed. Cir. 1986),

cert. denied, 481 U.S. 1017 (1987) (emphasis supplied).

           In the instant case, the ICE officers’ CBA plainly and unequivocally excludes the subject

matter of this litigation. The negotiable matters are limited to personnel matters and conditions

of employment, such as safety conditions, hours per shift, and equipment provided for the com-

fort or security of officers. Non-negotiable matters include (1) the mission of the agency, and (2)

the assignment of work – both of which include orders to place, or not to place, aliens into re-

moval proceedings. As demonstrated below, the CBA is unequivocal on these points.

           A.       The Agreement Limits Bargaining to Conditions of Employment.

           The CBA repeatedly makes clear that the bargaining and grievance procedures described

therein are limited to specific conditions of employment. This limiting factor appears repeatedly

throughout the CBA:

                   The right to engage in collective bargaining is limited as follows: “Col-
                    lective Bargaining. To engage in collective bargaining with respect to
                    conditions of employment through the Union as provided by law and this
                    Agreement.” Art. 3.A.(1)(b) (Doc. 34-7, p. 11) (emphasis supplied).

                   The right of the union to present its views is limited as follows: “Right to
                    Present Views. The Union shall have the right to present its views, either
                    orally or in writing, to the Employer on any matters of concern regarding
                    personnel policies and practices and matters affecting working condi-
                    tions.” Art. 5.D. (Doc. 34-7, p. 13) (emphasis supplied). 2



2
    “Personnel practice” is defined to include a list of prohibited “personnel actions” including:

           (1)      Discrimination.
           (2)      Non-merit Considerations.
           (3)      [Coerced] political activity.
                                                                                    (footnote continued on next page …)


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                The union may only respond to management on official time as follows:
                 “Respond to Management. Review of and response to memoranda, let-
                 ters, and requests from the Employer, as well as proposed new instruc-
                 tions, manuals, notices, etc., which affect personnel policies, practices or
                 working conditions.” Art. 7.A.(7) (Doc 34-7, p. 16) (emphasis supplied).

                Post-implementation bargaining over emergency changes is limited in the
                 same fashion, when “there is a need for expedited implementation of new
                 policies or practices affecting conditions of employment.” Art. 9.F. (Doc
                 34-7, p. 28) (emphasis supplied).

                The union’s right to be represented is similarly limited: “The Union shall
                 be given the opportunity to be represented at any formal discussion be-
                 tween one or more representatives of the Service and one or more employ-
                 ees in the unit or their representatives concerning any grievance or any
                 personnel policy or practices or other general conditions of employment.”
                 Art. 30.A. (Doc. 34-7, p. 64) (emphasis supplied).

                Bargaining involving equal employment opportunity programs is similarly
                 limited: “Bargaining Obligations. Where the development and imple-
                 mentation of the Employer’s Equal Employment Opportunity Plans and
                 Programs involve changes in personnel policies, practices, or working
                 conditions, the Employer will fulfill its bargaining obligations with the
                 Union under Chapter 71 – Labor-Management Relations—of Title 5,
                 United States Code.” Art. 44.B. (Doc. 34-7, p. 87) (emphasis supplied).

                The notification requirement regarding changes to resolve equal employ-
                 ment opportunity complaints is similarly limited: “Notification of
                 Change. If at any stage of the complaint process under procedures cov-
                 ered by this article, the Employer determines to make changes to resolve
                 the complaint with respect to personnel policies and practices or matters
                 affecting the general working conditions of unit employees, the Union will
                 be afforded reasonable notification.” Art. 44.G. (Doc. 34-7, p. 90) (em-


(… footnote continued from previous page)
        (4)      Obstruct Competition.
        (5)      Influence … any person to withdraw from competition.
        (6)      Grant any … advantage not authorized by law, rule, or regulation to any employee….
        (7)      Appoint … any person who is a relative.
        (8)      Whistleblower Reprisal … [for] a disclosure of information….
        (9)      Appeal Reprisal … for the exercise of any appeal right granted by any law, rule, or regu-
                 lation.
        (10)     Outside Conduct ... [used to] [d]iscriminate for or against any employee….
        (11)     Violation of Merit System Principles.

Art. 11.A.-B. (Doc. 34-7, pp. 31-33).




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               phasis supplied).

              The opportunity to bargain regarding equal employment opportunity plans
               is similarly limited: “Opportunity to Bargain. If implementation of the
               Employer’s Equal Employment Opportunity Plans involves changes in
               personnel policies, practices, or matters affecting working conditions, the
               Union will be given reasonable opportunity to exercise its bargaining
               rights pursuant to Chapter 71 of Title 5, United States Code prior to im-
               plementation.” Art. 44.J. (Doc. 34-7, p. 91) (emphasis supplied).

              Grievance procedures are similarly limited: “A grievance means a com-
               plaint either by a unit employee concerning his or her conditions of em-
               ployment, by the Union in its own behalf concerning conditions of em-
               ployment of any employee, or alleged contractual violations by the Service,
               or by the Service concerning alleged contractual violations by the Union.”
               Art. 47.B. (Doc. 34-7, p. 96) (emphasis supplied).

              Grievances involving violations of law may only be pursued if they affect
               the same conditions: “Violation of Law, Rule, or Regulation. Any
               claimed violation, misinterpretation, or misapplication of any law, rule, or
               regulation affecting conditions of employment.” Art. 47.B.(2) (Doc. 34-7,
               p. 96) (emphasis supplied).

In summary, the CBA repeatedly and emphatically limits the right of the union to bargain to

conditions of employment. The substance of the policy changes in the Morton Memorandum

and the Directive cannot reasonably be described as a change to these conditions.

       B.      The Agreement Expressly Excludes from Bargaining the Agency’s
               Mission and the Assignment of Work.

       Consistent with the agreement’s limitation of negotiable issues to employment conditions

and personnel matters, the CBA excludes topics that fall outside of these areas. Most impor-

tantly, the CBA makes clear that disputes concerning the agency’s mission and the work that is

assigned to officers cannot be the subject of collective bargaining:

              “Nothing in this contract shall affect the authority of any Service official
               … to determine the mission, budget, organization, number of employees
               and internal security practices of the service ….” Art. 4.B.(1) (Doc. 34-7,
               p. 11) (emphasis supplied).

              “Nothing in this contract shall affect the authority of any Service official
               … to assign work ….” Art. 4.B.(1) (Doc. 34-7, p. 11) (emphasis supplied).


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This is an unequivocal, express exclusion from collective bargaining of the assignment of tasks

to immigration officers and the mission of the agency. Consequently, it is impossible for the

plaintiffs to collectively bargain whether or not they may place certain aliens into removal pro-

ceedings or whether or not they must follow the Morton Memorandum and the Directive.

III.   FEDERAL LAW PROHIBITS COLLECTIVE BARGAINING THAT RE-
       STRICTS THE AUTHORITY OF AGENCY MANAGEMENT TO DE-
       TERMINE THE AGENCY’S MISSION OR TO ASSIGN WORK.

       Even if the CBA at issue in this case did not expressly exclude from bargaining the au-

thority of agency management to determine the agency mission or to assign work, it would not

matter, because federal law clearly prohibits any collective bargaining on these subjects:

       (a) Subject to subsection (b) of this section, nothing in this chapter shall affect the
       authority of any management official of any agency—

           (1) to determine the mission, budget, organization, number of employees, and
           internal security practices of the agency; and

           (2) in accordance with applicable laws—

               (A) to hire, assign, direct, layoff, and retain employees in the agency, or to
               suspend, remove, reduce in grade or pay, or take other disciplinary action
               against such employees;

               (B) to assign work, to make determinations with respect to contracting out,
               and to determine the personnel by which agency operations shall be con-
               ducted;

5 U.S.C. § 7106(a) (emphasis supplied). The policies that DHS adopts regarding under what cir-

cumstances aliens may be placed into removal proceedings fall within the agency’s nonnegotia-

ble authority “to assign work” under 5 U.S.C. § 7106(a)(2)(B). See AFGE Local 3511 and VA

Hosp. San Antonio, 12 F.L.R.A. 76, 81 (1983) (proposals that “directly interfere with the

Agency’s right to determine what duties must be performed” are not subject to bargaining).

Such policies also involve the agency’s authority “to determine [its] mission” under 5 U.S.C.

§ 7106(a)(1). See AFGE Nat’l Border Patrol Council, 51 F.L.R.A. 1308, 1325 (1996) (“The


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    Case 3:12-cv-03247-O Document 63 Filed 05/07/13                         Page 15 of 23 PageID 1141



mission of the Agency … includes the enforcement of laws concerning illegal immigration.”).

        Article III courts have consistently recognized the importance and the breadth of these

nonnegotiable areas. “Without a doubt, the right to determine what work will be done and by

whom and when it is to be done, is at the very core of successful management of the employer’s

business, whether a private sector enterprise or the public service operations of a federal

agency.” National Treasury Employees Union v. FLRA, 691 F.2d 553, 563 (D.C. Cir. 1982)

(emphasis supplied); see Overseas Educ. Ass’n v. FLRA, 961 F.2d 36, 39 (2d Cir. 1992) (refer-

ring to “the wide net of subsection (a)’s management prerogatives”). The Fifth Circuit has

pointed to the legislative history of 5 U.S.C. § 7106, noting that under no circumstances are gen-

eral agency polices to be subject to collective bargaining: “By inclusion of this [7106(b)(1) 3 ]

language, however, it is not intended that agencies will discuss general policy questions deter-

mining how an agency does its work.” United States Dep’t of Justice v. Federal Labor Rel.

Auth., 727 F.2d 481, 487 (5th Cir. 1984) (quoting H. Rep. No. 95-969, 95th Cong., 2d. Sess.

(1978), at 154) (brackets in original). The Fifth Circuit has accordingly defined the assignment

of work broadly: “The right ‘to assign work’ necessarily encompasses the right to determine

when it will be performed.” Id. at 488 (citing National Treasury Employees Union, 691 F.2d at

562); see also United States Dep’t of Justice, INS v. Federal Labor Rel. Auth., 995 F.2d 46, 48

(5th Cir. 1993). “Operational decisions” such as directing “the INS to establish highway check-

points at night” are nonnegotiable. 727 F. 2d at 488. So too is the operational decision regarding

which illegal aliens will be placed into removal proceedings.



3
  5 U.S.C. § 7106(b)(1) states: “Nothing in this section shall preclude any agency and any labor organization from
negotiating – (1) at the election of the agency, on the numbers, types, and grades of employees or positions assigned
to any organizational subdivision, work project, or tour of duty, or on the technology, methods, and means of per-
forming work.”




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IV.     THE DEFENDANTS HAVE DEMONSTRATED THAT THEY DID NOT
        REGARD THE MEMORANDUM AND DIRECTIVE TO BE NEGOTIA-
        BLE.

        A.       The Defendants Have Treated the Substance of the Morton Memo-
                 randum As Not Subject to Bargaining.

        Outside of this litigation, the defendants and their agency representatives have consis-

tently regarded the substance of the Morton Memorandum as involving excluded subject matter

that is not negotiable under the CBA. At the time the policy was announced, the defendants did

not regard its substance to be subject to collective bargaining. This is evident because the defen-

dants did not serve a “notice of a proposed change” on Plaintiff Christopher Crane regarding the

substance of the policy. According to Article 9 of the CBA, which governs the procedure for

bargaining, the agency must serve a formal notice of a proposed change whenever it makes a na-

tional policy change that is subject to bargaining. Art. 9.B.(1)(a) (Doc. 34-7, p. 24). Specifi-

cally, proposed changes to “existing Service regulations covering personnel policies, practices,

and/or working conditions” must be initiated with a notice of proposed change. Art. 9.A. (Doc.

34-7, p. 24) (emphasis supplied). The defendants have always taken the position that their obli-

gation to send a Section 9.A. notice is coextensive with their obligation to bargain upon request.

Therefore, if the agency does not send a Section 9.A. notice regarding a particular matter, then

the agency does not regard the matter as subject to bargaining. 4

        Understanding that the subject matter of removals within the Morton Memorandum is

expressly excluded by the CBA, and determining no effect upon working conditions, the defen-


4
  For example, on February 24, 2012, the agency responded to a demand to bargain regarding a new detainer form.
The agency stated that because the matter was not subject to bargaining, it had no obligation to send a Section 9.A.
notice: “To the extent that these changes have any impact whatsoever on the conditions of employment of bargain-
ing unit employees, the impact is no more than de minimis. Consequently the Agency did not have an obligation to
provide notice and an opportunity to bargain to the Union.” Venturella Letter of Feb. 24, 2012, attached as Exhibit
F.




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dants did not send a Section 9.A notice of a proposed change regarding the policy’s substance.

Instead, on December 8, 2011, Enforcement and Removal Operations Executive Director Gary

Mead sent a notice of proposed change only regarding any training that personnel might have to

undertake to implement the Morton Memorandum. In that notice, Mead specifically stated that

the policy itself was not subject to collective bargaining because it did not directly affect condi-

tions of employment:

        While we believe this [Morton] memorandum does not directly affect conditions
        of employment of ERO bargaining unit employees, it is foreseeable that aliens, at-
        torneys, and Non-Governmental Organizations will ask questions of ERO em-
        ployees concerning its contents. … [T]his training will provide ERO employees
        with the information they need to respond to questions in a manner consistent
        with Department of Homeland Security (DHS) and ICE priorities, should they en-
        counter them.

Mead Letter of Dec. 8, 2011, attached as Exhibit A (emphasis supplied). The Mead Letter went

on to explain that the substance of the Morton Memorandum was non-negotiable under the col-

lective bargaining agreement, and suggested that the training might also be non-negotiable:

        The Agency maintains that the implementation of the [Morton] Memorandum
        through mandatory training represents an exercise of management’s rights to as-
        sign work and determine the methods and means of performing work. However
        management serves this National 9(A) notice for the purpose of fulfilling its bar-
        gaining obligation with regard to the impact and implementation of the initiative.

Id. (emphasis supplied). 5 The letter then instructed Plaintiff Crane to serve any demand to bar-

gain that the union wished to serve, pursuant to the collective bargaining agreement. Id.




5
 “Impact and implementation bargaining” refers to the impacts of a mission change on working conditions and the
“procedures which management officials of the agency will observe in exercising any authority under this section.”
5 U.S.C. §§ 7106(b)(2) & (3). Such impacts are negotiable even though the substance of the mission change is not.
See Dept. of Air Force, Scott AFB and NAGE Local R7-23, 35 F.L.R.A. 844 (1990).




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       B.      The Mere Fact that Plaintiff Crane Sent a “Demand to Bargain” Let-
               ter Does Not Bring the Substance of the Morton Memorandum
               Within the Terms of the CBA.

       Shortly after receiving the Mead Letter, Plaintiff Crane responded on January 24, 2012,

with a demand to bargain over the Morton Memorandum’s “impact and implementation” con-

cerning working conditions. He also realized that the Morton Memorandum would likely place

ICE officers in an impossible position: it was foreseeable that they would be required to choose

between violating federal law and disobeying the orders of their supervisors. Plaintiff Crane

therefore followed a natural course for a union officer seeking to protect union members who

wished to follow federal law and commence removal proceedings when required to do so by

8 U.S.C. § 1225(b)(2)(A). He included among the numerous proposals in the demand-to-bargain

letter a proposal that: “No employee will be subject to disciplinary or adverse action for refusing

to obey an unlawful order.” Crane Letter of Jan. 25, 2012, attached as Exhibit B. He did not at-

tempt to bargain the substance of the Morton Memorandum; rather, he attempted to bargain

whether or not ICE officers would be punished if they disobeyed it. The fact that the letter was

sent, and that it included this proposal, was stated in the Amended Complaint. Am. Complt.

¶ 53. On April 5, 2012, Plaintiff Crane submitted Additional Proposals and an Information Re-

quest, attached as Exhibit C. That too is in the Amended Complaint. Am. Complt. ¶ 54.

       The attempt to protect the ICE officers from suspension in this instance was in vain, be-

cause federal law prohibits bargaining that restrict the “authority of any management official of

any agency … to suspend, remove, reduce in grade or pay, or take other disciplinary action

against such employees.” 5 U.S.C. § 7106(a); see Section III, supra. Even if the agency had

been willing to negotiate whether or not adverse employment actions would be taken against

agents who initiated removal proceedings in defiance of the Morton Memorandum, federal law




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rendered this issue nonnegotiable. 6

        The fact that a plaintiff pursued a collective bargaining remedy that is prohibited by fed-

eral law does not bar the plaintiffs from demonstrating in this Court, as they have done above,

that no collective bargaining remedy is available. A party is precluded from asserting a position

inconsistent with that asserted in prior proceedings only if, inter alia, the tribunal accepted the

party’s prior position. E.g., Giles v. General Electric Co., 245 F.3d 474, 483 (5th Cir. 2001)

(ADA plaintiff, who claimed to be qualified individual, not estopped by statements on SSDI ap-

plication that he was disabled, where no SSDI benefits were awarded); Moore v. United Services

Automobile Ass’n, 808 F.2d 1147, 1153 n.6 (5th Cir. 1987).

        C.       The Defendants Sent Additional Letters Reiterating Their Position
                 That the Substance of the Morton Memorandum Was Not Subject to
                 Bargaining.

        On October 1, 2012, the defendants through their representative Michael Ellis responded

to Plaintiff Crane’s demand-to-bargain letter. In their response (which occurred well after the

commencement of this litigation) the defendants emphatically declared that the substance of the

Morton Memorandum was not subject to collective bargaining. Ellis Letter of Oct. 1, 2012, at-

tached as Exhibit D. The defendants stated that the substance of the Morton Memorandum, inter

alia, was “nonnegotiable” for several reasons, three of which are relevant here. Id. First, they

stated that “[t]he Union’s proposal is beyond the scope of the Agency’s duty to bargain.” Id.

(emphasis supplied). Second, they stated that “[m]anagement’s intended change represents ei-

ther no, or no more than de minimis, changes to conditions of employment for BUE’s.” Id.




6
  None of the other proposals included in the demand-to-bargain letter came even close to touching upon the sub-
stance of the Morton Memorandum. See Exhibit B. Nor do the proposals included in the Additional Proposals and
an Information Request of April 5, 2012. See Exhibit C.




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Third, the defendants stated that “[t]he Union’s proposal is nonnegotiable since it excessively

interferes with management’s rights under 5 U.S.C. § 7106 (right to assign work, right to direct

employees, right to discipline, etc. …).” The defendants were unequivocal in their position that

the substance of the Morton Memorandum was not subject to bargaining.

       The defendants also declared that they had no duty to bargain at all. However they would

accept one Union proposal regarding training; that is, they would “avoid interruptions and relieve

the bargaining unit employees of other job demands while he or she is attending training.” Ellis

Letter of Oct. 1, 2012. Ellis firmly stated that “the Union has presented no ‘impact and imple-

mentation’ proposals over which the Agency has a duty to bargain. …[T]he Agency does not

believe that the Union’s proposals raise any negotiable issues….” Id. (emphasis supplied).

       In a second letter, dated December 13, 2012, Mr. Ellis reiterated that the substance of the

Morton Memorandum was not subject to negotiation: “The Article 9(A) notice sent to the Union

on December 22, 2011, was specifically in reference to the provision of mandatory training to

bargaining unit employees concerning the June 17, 2011, memorandum and not with regard to

the memorandum itself. Therefore, the only relevant issues in question related to any possible

bargaining were impact and implementation matters concerning the provision of the mandatory

training.” Ellis Letter of December 13, 2012, attached as Exhibit E (emphasis supplied).

       Nevertheless, looking for some way to argue that this Court lacks jurisdiction to adjudi-

cate this case, counsel for the defendants, in a footnote, took a position exactly the opposite of

that stated in the two Ellis letters during the same time period. See Defendants’ Motion to Dis-

miss and Memorandum in Support, 11 n.3 (Nov. 13, 2012). Now they attempt to advance the

untenable argument that the substance of the Morton Memorandum, itself, is subject to collective

bargaining. As explained at length above, 5 U.S.C. § 7106(a) and the text of the collective bar-




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 Case 3:12-cv-03247-O Document 63 Filed 05/07/13                  Page 21 of 23 PageID 1147



gaining agreement clearly state that the mission of the agency and the assignment of work cannot

be negotiated. Their argument is unsustainable as a matter of law, and remarkable in that it so

clearly contradicts their client’s position.

        D.      The Defendants Have Treated the Substance of the Directive As Not
                Subject to Bargaining.

        Finally, it is important to note that the defendants did not regard the Directive to be sub-

ject to bargaining in any respect. Whereas with the Morton Memorandum their Section 9.A. no-

tice stated that the substance of the policy was nonnegotiable, but conceded that some training

might be negotiable, see Section IV.A, supra, with the Directive the defendants declined to send

any notice of proposed change at all. The defendants have consistently taken the position that

they are under no obligation to send a Section 9.A. notice if the policy in question is not subject

to bargaining. See note 4, supra. They thereby evidenced their correct understanding that the

substance of the Directive is not subject to collective bargaining under the CBA.

                                           CONCLUSION

        In summary, defense counsel face two insurmountable statutory hurdles in their attempt

to argue that this Court’s jurisdiction is supplanted by the MSPB’s jurisdiction or by the CBA. 5

U.S.C. § 7512 makes clear that the MSPB lacks jurisdiction over this case. And 5 U.S.C.

§ 7106(a) makes clear that this case cannot be subject to collective bargaining. Consequently,

jurisdiction lies in this Court pursuant to 28 U.S.C. § 1331. The plaintiffs therefore respectfully

request that this court issue preliminary injunctive relief to prevent the harm that the ICE officers

and the public would otherwise face due to the operation of the unlawful Directive and Morton

Memorandum during the pendency of this litigation. With each passing week, more illegal

aliens arrested for crimes are being released by ICE, and thousands of additional illegal aliens are

being induced to rely on the unlawfully-conferred benefit of deferred action.


                                                -15-
 Case 3:12-cv-03247-O Document 63 Filed 05/07/13         Page 22 of 23 PageID 1148



                              Respectfully submitted,

                                         /s Kris W. Kobach
P. MICHAEL JUNG                          KRIS W. KOBACH
Texas Bar No. 11054600                   Kansas Bar No. 17280 (admitted pro hac vice)

Strasburger & Price, LLP                 Kobach Law, LLC
901 Main Street, Suite 4400              4701 N. 130th St.
Dallas, Texas 75202                      Kansas City, Kansas 66109
Telephone: 214-651-4300                  Telephone: 913-638-5567

                              Attorneys for Plaintiffs

DATED: May 7, 2013




                                       -16-
 Case 3:12-cv-03247-O Document 63 Filed 05/07/13              Page 23 of 23 PageID 1149



                               CERTIFICATE OF SERVICE


       I hereby certify that this Amended Supplemental Brief in Support of Plaintiffs’ Applica-

tion for Preliminary Injunctive Relief has been served on the defendants by electronic service

through the Court’s ECF system to Adam Kirschner, Esq., and Bradley H. Cohen, Esq., Attor-

neys for Defendants, at Adam.Kirschner@usdoj.gov and Bradley.Cohen@usdoj.gov, on this 7th

day of May, 2013.


                                               /s Kris W. Kobach
                                               KRIS W. KOBACH




                                             -17-

				
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