[00:00:00] Speaker 00:
Case number 25-5157, National Treasury Employees Union versus Donald J. Trump, President of the United States, et al.

[00:00:09] Speaker 00:
a balance.

[00:00:10] Speaker 00:
And case number 25-5184, American Foreign Service Association versus Donald J. Trump in his official capacity as President of the United States, et al.

[00:00:20] Speaker 00:
a balance.

[00:00:21] Speaker 00:
and case number 25-5303, Federal Education Association, et al, versus Donald J. Trump in his official capacity as president of the United States, et al, at balance.

[00:00:31] Speaker 00:
Mr. Koppel, for balance, Donald J. Trump in his official capacity as president of the United States, et al.

[00:00:37] Speaker 00:
Mr. Schaub, for appellee, National Treasury Employees Union.

[00:00:40] Speaker 00:
Mr. Walta, for appellees, Federal Education Association, et al.

[00:00:44] Speaker 00:
Mr. Hearn, for appellee, American Friends Service Association.

[00:00:48] Speaker 00:
Morning.

[00:00:51] Speaker 04:
Good morning, Your Honors.

[00:00:52] Speaker 04:
May it please the Court, I'm Josh Koppel for the U.S.

[00:00:54] Speaker 04:
Government Defendants, and I would like to reserve seven minutes for rebuttal.

[00:00:59] Speaker 04:
Plaintiffs challenge the President's exercise of discretionary national security authority expressly granted by Congress.

[00:01:06] Speaker 04:
Their claims fail for multiple probable reasons, and the District Court committed numerous errors in the course of issuing the preliminary injunctions under review.

[00:01:14] Speaker 04:
I'd like to start where the court always must with jurisdiction.

[00:01:18] Speaker 04:
The district court lacked jurisdiction because Congress created an exclusive statutory review scheme under which claims arising under the collective bargaining statutes have to be channeled to the FLRA or the FSLRB with direct review in the Court of Appeals.

[00:01:35] Speaker 04:
there's no doubt the plaintiff's claims arise under the FSL MRS and subchapter 10 of the Foreign Service Act and require evaluating the actions of the president against the requirements of the statute.

[00:01:47] Speaker 04:
And that is exactly the type of claim that Congress intended be channeled to the FLRA.

[00:01:52] Speaker 04:
And this court held as much.

[00:01:53] Speaker 04:
In American Federation of Government Employees versus Loy,

[00:01:57] Speaker 04:
In that case, the undersecretary of transportation issued an order pursuant to other statutory authority, providing that TSA screeners would not be eligible for collective bargaining.

[00:02:09] Speaker 04:
A union filed a petition in the FLRA seeking representation elections.

[00:02:13] Speaker 04:
The FLRA denied that petition, dismissed the petition for lack of jurisdiction because of the undersecretary's order.

[00:02:20] Speaker 03:
Any reason to doubt that that was an appealable order?

[00:02:24] Speaker 04:
No, there was no reason to doubt that was an appealable order.

[00:02:27] Speaker 03:
No appeal was taken.

[00:02:29] Speaker 03:
But no appeal was taken, correct?

[00:02:31] Speaker 04:
That's correct.

[00:02:32] Speaker 04:
Instead, the union files suit in district court, and this court held that the district court lacked jurisdiction because the claim had to be routed through the FLRA.

[00:02:41] Speaker 03:
Is that the sequence that the authority dismissed the petition before the union files in this court?

[00:02:50] Speaker 04:
I believe they were happening concurrently.

[00:02:53] Speaker 03:
I thought they were more or less simultaneous.

[00:02:55] Speaker 04:
That's right.

[00:02:55] Speaker 04:
They were more or less simultaneous.

[00:02:57] Speaker 04:
But in any event, the court held that the district court lacked jurisdiction because any review had to come from the FLRA order.

[00:03:05] Speaker 04:
The court also held that even if the FLRA order, to get to your question just a moment ago, the court held that even if the FLRA order hadn't been appealable, subject to judicial review, nonetheless, the CSRA would preclude, the FSLMRS would preclude review in the district court.

[00:03:23] Speaker 04:
But here, there is a way for, there are multiple ways for plaintiffs to bring their claims to the FLRA with judicial review after that.

[00:03:31] Speaker 05:
So as to 7-1-1-1,

[00:03:34] Speaker 05:
The statute says that the authority will proceed if it has reasonable cause to believe that a question of representation exists.

[00:03:42] Speaker 05:
If they don't find reasonable cause, and I suppose deny the petition, the statute doesn't seem to address whether that kind of decision is appealable.

[00:03:52] Speaker 05:
Do you know whether it is?

[00:03:56] Speaker 05:
A final order would be, but a dismissal, much like a GC declination decision, might not be subject to review.

[00:04:04] Speaker 04:
I don't whether that

[00:04:06] Speaker 04:
I'm not sure whether if the FLRA determines that there's not a hearing, whether that is subject to judicial review, but I think that whether that's actually, first of all, there's several other routes to judicial review here, but even if it works.

[00:04:20] Speaker 05:
Let's just focus on 7111, because what Loy said, the situation where it doesn't matter if it can be reviewed is if you're subject to the explicit provision that says there is no review of certain categories, and 7111 is not in that category.

[00:04:35] Speaker 05:
So this seems analogous to the problem that you arguably face with UOP charges, which is we don't know if there will be a final decision reviewable even by the authority, much less a court, right?

[00:04:48] Speaker 04:
We don't know.

[00:04:50] Speaker 04:
Well, there are pending cases in front of the FLRA, including ULP cases.

[00:04:56] Speaker 04:
And in a couple of those cases, at least, the FLRA has issued show cause orders asking why the FLRA should not dismiss for lack of jurisdiction because the president's executive order has taken the agencies outside the scope of the FSLMRS.

[00:05:10] Speaker 04:
plaintiffs could explain that they believe the FLRA has jurisdiction because the executive order is invalid.

[00:05:16] Speaker 05:
Has the authority of any of those cases progressed far enough so that we would know what the authority is going to do in terms of whether they actually will resolve a challenge to the EO?

[00:05:27] Speaker 04:
The unions here have instead asked the FLRA to hold the cases in abeyance pending this litigation or pending, they didn't specify exactly what they could have.

[00:05:36] Speaker 08:
Has the authority done that, held those cases in abeyance?

[00:05:39] Speaker 08:
Yes.

[00:05:40] Speaker 08:
They have.

[00:05:40] Speaker 08:
So the authority is waiting for the courts.

[00:05:43] Speaker 04:
Yes.

[00:05:44] Speaker 04:
But again, if this court decides this case belongs in the FLRA because it arises under the FSLMRS, the FLRA would presumably continue with those cases.

[00:05:54] Speaker 04:
If it dismisses the cases because the agencies are no longer subject to the collective bargaining provisions, this court could review that dismissal order.

[00:06:02] Speaker 05:
And you represent a number of these agencies.

[00:06:05] Speaker 05:
What was their position before the FLRA as to whether the FLRA has jurisdiction to resolve this question?

[00:06:13] Speaker 04:
Their position is that the FLRA lacks jurisdiction over the pending cases because the executive order is valid.

[00:06:24] Speaker 05:
Will you say that the government will not argue that the FLRA lacks jurisdiction over a challenge to the EO?

[00:06:32] Speaker 04:
We don't think that the FLRA lacks jurisdiction to at least consider its jurisdiction over the case, right?

[00:06:39] Speaker 04:
Just like a district court has jurisdiction to consider its jurisdiction.

[00:06:43] Speaker 05:
And in your submissions to the FLRA, you advanced that position that they affirmatively have the ability to resolve their own jurisdiction.

[00:06:53] Speaker 04:
I'm not certain whether we've told the FLRA that

[00:06:57] Speaker 04:
But until now, it is— You can see the concern, right?

[00:06:59] Speaker 05:
If you tell us and we think that the FLRA has authority, and you turn around and argue that they don't.

[00:07:07] Speaker 04:
I know that we have not told the FLRA that it doesn't have authority to consider the validity of the executive order.

[00:07:12] Speaker 04:
We still have our arguments on the merits that certainly that just like the district court can't review the executive order, the FLRA can't review it for certain reasons on the merits.

[00:07:21] Speaker 04:
But in terms of jurisdiction, it is the government's position that the FLRA has jurisdiction to consider whether these agencies are properly excluded from the provisions of the FSLMRS.

[00:07:32] Speaker 05:
So in your view, 7-1-1-1 isn't really all that important.

[00:07:37] Speaker 05:
You think this question should be teed up in a ULP case?

[00:07:40] Speaker 04:
I think it could be teed up in a number of different cases, whether a 71-1-1 petition.

[00:07:47] Speaker 04:
There are currently negotiation, negotiability.

[00:07:51] Speaker 04:
cases pending before the FLRA where an agency did not agree to negotiate on a certain issue, those cases are currently pending.

[00:07:58] Speaker 04:
And so while they don't, on their merits, raise the issue of the executive order, the FLRA would have to consider the validity of that order in determining its jurisdiction.

[00:08:09] Speaker 04:
Those could come to this court or another court of appeals or through a ULP proceeding.

[00:08:14] Speaker 03:
I think we were told that the Foreign Service Union does not have any matter pending before the authority.

[00:08:21] Speaker 03:
I'm sorry, that the... That the Foreign Service Union does not have a matter pending before the authority.

[00:08:26] Speaker 04:
That's correct.

[00:08:27] Speaker 04:
And so they could file a, there's a 4111 petition, or they could raise... That takes us back to 711.

[00:08:35] Speaker 04:
Right.

[00:08:36] Speaker 04:
Or they could raise an unfair labor practice claim.

[00:08:38] Speaker 03:
But the option you just described does not apply to... Not the pending cases.

[00:08:43] Speaker 04:
They don't have pending cases before the FSLRB.

[00:08:46] Speaker 04:
But again, they could raise an unfair labor practice claim.

[00:08:49] Speaker 04:
They raise this question, well, the general counsel might decline to file the complaint.

[00:08:53] Speaker 04:
But that is a feature of the statute that is present in every unfair labor practice claim.

[00:08:58] Speaker 04:
It's not particular here.

[00:09:00] Speaker 04:
And this court has never held that the concern that the general counsel might decline to file the complaint gives rise to district court jurisdiction.

[00:09:08] Speaker 04:
That's a feature of the statute that Congress created.

[00:09:11] Speaker 03:
If the consequence of that is that there's no forum for their

[00:09:15] Speaker 03:
other arguments, their constitutional arguments or ultra-various arguments and so on.

[00:09:20] Speaker 03:
We've never said that that's a matter of indifference.

[00:09:28] Speaker 03:
We've never said you can rely on an unfair labor practice proceeding, even though if no complaint issues from the GC, you'll never have a forum for your other claims.

[00:09:38] Speaker 04:
In Afge versus Trump in 2019, the plaintiffs there were challenging executive orders.

[00:09:43] Speaker 04:
And this court said that one of the routes to judicial review would be to file an unfair labor practice complaint.

[00:09:50] Speaker 04:
The same objection could have been raised that the general counsel would decline to file.

[00:09:54] Speaker 03:
But as you must acknowledge, I think, from what you said earlier, that if they take that route and no complaint is issued, they have no way of getting to court.

[00:10:05] Speaker 03:
That's correct.

[00:10:06] Speaker 03:
And therefore, there is no forum for their other claims.

[00:10:11] Speaker 04:
So this court has said on multiple occasions, in Junt versus Broadcasting Board of Governors, for example, then Judge Kavanaugh said, what you get under the CSRA is what you get.

[00:10:20] Speaker 04:
Then Judge Roberts said in Ashcroft versus Graham, that what matters is not whether the plaintiff actually has a remedy, but the comprehensiveness of the statutory scheme.

[00:10:31] Speaker 08:
So we recognize that the comprehensiveness of the CSRA may mean that there's no forum for various claims.

[00:10:39] Speaker 08:
But have we ever held that that's true for Altravira's claims?

[00:10:43] Speaker 08:
And it seems that in many of those cases, the court either assumes that Altravira's claims would have some other avenue of district court or other review.

[00:10:51] Speaker 08:
I mean, how far does the comprehensiveness go?

[00:10:55] Speaker 08:
Is it the government's position that the comprehensiveness of the CSRA just means that sometimes there is no forum

[00:11:01] Speaker 08:
or the claim, even if it's an ultra-various claim?

[00:11:04] Speaker 04:
Yes, I think that all of these cases are necessarily ultra-various claims because if there were a cause of action, then the district court would have jurisdiction.

[00:11:11] Speaker 04:
So I think that the situation where a plaintiff ends up in a case where they might have a remedy in the FLRA, but they might not, but there's no cause of action in district court, I think that's necessarily an ultra-various claim.

[00:11:25] Speaker 04:
So yes, I think that

[00:11:27] Speaker 04:
And I don't think there's anything special about an ultra-various claim.

[00:11:30] Speaker 04:
Congress can certainly preclude district court jurisdiction over an ultra-various claim.

[00:11:35] Speaker 04:
In fact, an ultra-various claim only arises if there is no such preclusion of judicial review.

[00:11:42] Speaker 08:
So I thought it was interesting.

[00:11:44] Speaker 08:
You said at the beginning that this is a channeling type of statute.

[00:11:47] Speaker 08:
And that's not usually how our cases talk about these particular statutory schemes.

[00:11:52] Speaker 08:
We often talk about channeling for

[00:11:54] Speaker 08:
for the Tucker Act and some other things.

[00:11:56] Speaker 08:
And so I wonder, I mean, should we think of these schemes as channeling schemes?

[00:12:08] Speaker 04:
Maybe it's better expressed as an implied preclusion of district court jurisdiction because Congress has said that the way to raise this claim is in the FLRA and then direct review in the court of appeals.

[00:12:18] Speaker 04:
I'm not sure whether the channeling label really applies here or matters in this case.

[00:12:23] Speaker 08:
Well, the Thunderbasin factors suggest that there's, you know, even where Congress has created a separate scheme, there may be certain claims that fall out of the scheme.

[00:12:32] Speaker 08:
You know, there's sort of a more granular

[00:12:35] Speaker 08:
analysis that courts have to do, which, for instance, in the Tucker Act claims, it's sort of an on-off switch.

[00:12:42] Speaker 08:
Either this is a contracting that goes to the court of federal claims, or it's not.

[00:12:46] Speaker 08:
Whereas the Thunder Basin factor is also jurisdictional, but we do a different type of analysis.

[00:12:51] Speaker 08:
And I'm wondering if the analysis in Thunder Basin should look more like what we do in the Tucker Act context.

[00:12:57] Speaker 04:
I'm not as familiar with the analysis in the Tucker Act context, so I don't want to compare this to that and say how different it should be.

[00:13:07] Speaker 08:
You haven't had to litigate one of the 800 Tucker Act claims.

[00:13:10] Speaker 04:
Not yet.

[00:13:12] Speaker 04:
But, you know, it is certainly the case, Fausto makes clear, that people may not have claims under, may not have a remedy under the CSRA.

[00:13:23] Speaker 04:
Nonetheless, the CSRA includes district court jurisdiction over that type of claim.

[00:13:28] Speaker 04:
The FSLMRS, of course, is part of the CSRA.

[00:13:31] Speaker 05:
No doubt that there is a comprehensive scheme.

[00:13:35] Speaker 05:
And the question in this case is comprehensive as to what.

[00:13:38] Speaker 05:
So it's comprehensive when you have a grievance, maybe comprehensive when you want an election or you have a dispute about bargaining unit definition.

[00:13:46] Speaker 05:
But the district court's view was that this case is about basically a threshold question that there's no indication Congress wanted FLRA to decide because it's essentially a gateway question.

[00:13:59] Speaker 05:
Are you subject to the statute at all or not?

[00:14:02] Speaker 05:
And so what is your response to that specific question rather than saying it should be sort of

[00:14:09] Speaker 05:
Hinged on to some other dispute that is not really the core of this case.

[00:14:12] Speaker 04:
So I've got a couple responses.

[00:14:14] Speaker 04:
First, it was the exact same situation in Afge versus Loy.

[00:14:17] Speaker 04:
The question there was a threshold question, whether the TSA screeners had collected bargaining rights under the FSLMRS.

[00:14:24] Speaker 05:
They had filed a petition for an election, and the defense was, you're not entitled to any bargaining.

[00:14:32] Speaker 05:
These folks don't need an election.

[00:14:35] Speaker 04:
But nonetheless, the question whether they're entitled to any bargaining is the same.

[00:14:40] Speaker 04:
And that is the type of claim that FLRA can adjudicate, whether it arises through the 7111 procedure or through a pending case or through a ULP claim.

[00:14:50] Speaker 04:
It's the type of claim that Congress envisioned the FLRA to decide.

[00:14:56] Speaker 04:
The Congress gave the FLRA authority to administer the provisions of the FSLMRS.

[00:15:02] Speaker 04:
The FLRA's specialty is interpreting the provisions of the FSLMRS.

[00:15:07] Speaker 04:
And that's exactly what this case calls out for.

[00:15:10] Speaker 04:
It arises under the statute.

[00:15:11] Speaker 04:
It requires interpreting the statute.

[00:15:13] Speaker 04:
This is squarely within the FLRA's wheelhouse.

[00:15:16] Speaker 05:
It seems like the unions would say, and the district court would say, for the collateralism and expertise factors, it has to at least be relevant that the FLRA has never decided a case like this in terms of an ultra-virus challenge to a presidential executive order.

[00:15:32] Speaker 05:
We didn't consider explicitly the jurisdictional question, but this court did in Reagan.

[00:15:38] Speaker 05:
So we would at least be saying that case was wrongly decided, right?

[00:15:42] Speaker 04:
So in Reagan, this court didn't consider the issue of jurisdiction.

[00:15:46] Speaker 04:
So it shouldn't be taken as a holding on the jurisdictional issue because it's mostly a drive-by jurisdictional ruling.

[00:15:52] Speaker 04:
And in terms of collateral... There's no ruling at all, is there?

[00:15:56] Speaker 03:
There's no mention, is there?

[00:15:57] Speaker 04:
Right.

[00:15:58] Speaker 04:
That's right.

[00:15:58] Speaker 04:
There's no mention.

[00:16:00] Speaker 04:
Right.

[00:16:00] Speaker 04:
It would be mostly kind of an implicit jurisdictional drive by jurisdictional holding that it was jurisdiction, but it didn't address jurisdiction at all.

[00:16:07] Speaker 04:
In terms of collateral.

[00:16:09] Speaker 05:
The question is, there are obviously many provisions that FLRA applies every single day.

[00:16:14] Speaker 05:
And here we have a provision, it's never considered.

[00:16:17] Speaker 05:
So why isn't that relevant on the collateralism and expertise factors?

[00:16:22] Speaker 04:
So first of all, the fact that it hasn't considered this before simply because plaintiffs don't usually challenge the validity of an executive order.

[00:16:30] Speaker 04:
The FLRA has issued this kind of show cause order in the past.

[00:16:33] Speaker 04:
If the plaintiff unions had contested the validity, the FLRA would have had the opportunity to consider this kind of claim.

[00:16:39] Speaker 04:
The FLRA does have expertise in this area, though.

[00:16:43] Speaker 04:
It regularly adjudicates, or in the course of its regular business, it has to adjudicate whether particular employees perform national security work because those employees can't be part of a collective bargaining unit.

[00:16:53] Speaker 04:
And that question has obvious relevance or analogy to the question presented here.

[00:16:58] Speaker 04:
The FLRA also has expertise in interpreting the provisions of the FSL MRS.

[00:17:06] Speaker 04:
even if the FLRA doesn't have any greater expertise than the district court, nonetheless, the Supreme Court had made clear in Elgin, for example, that Congress shows to direct claims through the administrative body and this court can apply or this court or another court of appeals.

[00:17:23] Speaker 04:
at least under the FSLMRS, not necessarily this court, but a court of appeals could apply its judicial expertise on direct review from the FLRA's decision.

[00:17:32] Speaker 03:
Did you cite any case in which the FLRA had in fact determined whether parties were eligible for representation by virtue, or ineligible by virtue of doing national security work?

[00:17:47] Speaker 04:
whether the agencies were or whether employees were.

[00:17:52] Speaker 03:
In which the FLRA adjudicated a question of national security employment.

[00:17:58] Speaker 04:
So there are cases, yes, we do cite a case in our, I believe it's in our opening brief, in which the FLRA adjudicated whether employees were engaged in national security work.

[00:18:08] Speaker 04:
The question, excuse me.

[00:18:21] Speaker 03:
You said they do this regularly.

[00:18:40] Speaker 04:
So this on page 26 of our opening brief in NTU.

[00:18:45] Speaker 04:
U.S.

[00:18:45] Speaker 04:
Department of the Air Force and AFGI, local 2924, considered whether employees were engaged in work that directly affects national security.

[00:18:55] Speaker 04:
So that arises under section 7112B6, which precludes, which bars including employees in a collective bargaining unit if those employees are engaged in intelligence, counterintelligence investigative or security work which directly affects national security.

[00:19:10] Speaker 08:
a different type of question, though, than the question of whether the president has determined that certain agencies involved, you know, national security and intelligence.

[00:19:23] Speaker 08:
Because the provision at issue here is about a presidential determination.

[00:19:26] Speaker 04:
It is a different question.

[00:19:29] Speaker 08:
Just whether those agencies are, in fact, national security agencies.

[00:19:33] Speaker 04:
Yes, it is a different question.

[00:19:35] Speaker 04:
But the point is that the FLRA has expertise that it can bring to bear.

[00:19:41] Speaker 04:
And again, even if it didn't, however, the CSRA, the FSL MRS makes clear that Congress intended claims arising under the statute to be channeled through the administrative review scheme.

[00:19:53] Speaker 04:
And then the court can apply its expertise

[00:19:55] Speaker 08:
I mean, both sides here have a little bit of a problem because the jurisdictional question and the merits diverge.

[00:20:02] Speaker 08:
So the government is saying you need to go through the statutory scheme.

[00:20:05] Speaker 08:
But if you prevail on the merits, it will mean that the FLRA and the board have no jurisdiction.

[00:20:11] Speaker 08:
And then parties could appeal to this court.

[00:20:14] Speaker 08:
But then obviously on the other side, they have the same problem, which is they need to get jurisdiction in district court.

[00:20:21] Speaker 08:
They need to assume that the EO is valid.

[00:20:24] Speaker 08:
So how do we think about that?

[00:20:26] Speaker 08:
It's a very unusual type of circumstances.

[00:20:29] Speaker 08:
Usually, jurisdiction and merits kind of line up.

[00:20:33] Speaker 08:
And I'm wondering how best to think about that question, because we usually say we look to the plaintiffs as though they will prevail on the merits, but that's usually in part because we don't want to prejudge their merits claims at the jurisdictional stage.

[00:20:46] Speaker 04:
Right.

[00:20:47] Speaker 04:
I think the question to ask is what statute does their claim arise under?

[00:20:51] Speaker 04:
And what they are alleging is that the president's executive order has violated section 7103B1.

[00:20:58] Speaker 04:
That provision is part of the FSLMRS, of course, and Congress intended that claims rising under that statute generally

[00:21:06] Speaker 04:
would be directed to the FLRA.

[00:21:08] Speaker 04:
If plaintiffs allegedly have collected bargaining rights under some other statute, there wouldn't be any question that FSLMRS doesn't channel those claims or direct those claims, if you don't like the channeling analogy, to the FLRA.

[00:21:20] Speaker 04:
But their claims arise under that statute that the FLRA is charged with administering and interpreting.

[00:21:25] Speaker 03:
So if there's a difference here, as Joe Trout suggested and you acknowledged, from a case like the one you cited on page 26, it's that the authority would first be confronted with a question as to whether it can second-guess the president.

[00:21:50] Speaker 04:
That's right.

[00:21:51] Speaker 04:
There's going to be this question whether

[00:21:53] Speaker 04:
We think the claim is properly before the FLRA.

[00:21:56] Speaker 04:
The FLRA has jurisdiction.

[00:21:57] Speaker 04:
But whether it's the FLRA that has jurisdiction or the district court, either way, there is going to be this question then of whether the tribunal, the FLRA, or the court can review the president's determination on the merits, even if it determines that it does.

[00:22:13] Speaker 04:
What is the appropriate level of deference?

[00:22:15] Speaker 04:
So certainly, all those questions will play out.

[00:22:17] Speaker 03:
Right.

[00:22:17] Speaker 03:
And whether they say yes or no, you can't do anything about it.

[00:22:22] Speaker 03:
that will be unappealable.

[00:22:25] Speaker 04:
That's right.

[00:22:25] Speaker 04:
So if the FLRA said, we've got jurisdiction to decide this question, or even if it said we don't have jurisdiction to decide this question, that's an that's appealable to this court.

[00:22:35] Speaker 04:
And this court or another court of appeals certainly could review the validity of the executive order.

[00:22:41] Speaker 04:
Then once it gets to the merits, that again is a separate question.

[00:22:45] Speaker 03:
As Judge Rao suggested, we often assume the merits in order to determine standing.

[00:22:52] Speaker 03:
Should we do it in any other context?

[00:22:56] Speaker 04:
I don't think that this court has to necessarily apply that rule here.

[00:22:59] Speaker 04:
Again, the question, I think the court simply needs to say, what statute is this claim arising under?

[00:23:04] Speaker 04:
It's not a perfect fit for the rule that your honor is referring to about assuming the merits for purpose of standing.

[00:23:13] Speaker 04:
But again, I don't think that that's not the way that we're arguing.

[00:23:16] Speaker 05:
So is the answer that you're not familiar with that principle being applied outside of the standing?

[00:23:21] Speaker 05:
That's correct.

[00:23:22] Speaker 05:
OK.

[00:23:22] Speaker 08:
Yes.

[00:23:24] Speaker 08:
I guess also on this question of thinking about the plaintiff's arguments about the EO, is that question better conceptualized at Thunder Basin step one about the existence of the statutory scheme, or is it better conceptualized at the three factors in step two of Thunder Basin?

[00:23:46] Speaker 08:
Does it matter?

[00:23:47] Speaker 04:
I don't think it matters.

[00:23:50] Speaker 04:
I'm not sure.

[00:23:53] Speaker 04:
If your honor thinks that the FLRA has jurisdiction on, you know, if you prefer, whichever way you prefer to analyze the question.

[00:24:00] Speaker 04:
I do think that the Supreme Court has, and this court, have generally been clear that the CSRA precludes district court jurisdiction, that FSLMRS precludes district court jurisdiction, and the three factors are kind of- That's like a step one.

[00:24:17] Speaker 08:
Like, is this statutory scheme

[00:24:20] Speaker 08:
the existence of the statutory scheme precludes district court jurisdiction.

[00:24:25] Speaker 04:
Right, yes, I haven't actually heard of the Thunder Basin being divided into step one and step two like that, but I think that's right, that whether or not you have preclusion of judicial review, collateral, expertise, those factors, I don't necessarily think you need to get there because Fausto decides the question, Elgin decides the question, Afge versus Trump, Afge versus Secretary of the Air Force,

[00:24:48] Speaker 04:
I think that these cases already hold that the FSLMRS precludes district court jurisdiction regardless of whether there's a remedy for plaintiff through the FLRA, although again, here we think there is.

[00:25:02] Speaker 05:
But I don't think- Your rule would be it precludes jurisdiction over any claim that involves interpreting any provision of the FSLMRS essentially?

[00:25:13] Speaker 04:
I don't want to address a situation that's not before us, because there might be situations that I haven't thought of, but I think that generally that is correct.

[00:25:20] Speaker 04:
I mean, when this court said in Afge versus Loy that where there's an exception to judicial review, that doesn't mean you can go to district court.

[00:25:29] Speaker 04:
example, that applies, I think that rule would apply equally where, for example, the relevant claim is ULP claim and Congress has said that the general counsel's decision whether to file a complaint is not subject to judicial review.

[00:25:42] Speaker 04:
That doesn't mean that because you can't necessarily bring your ULP claim all the way up to court of appeals, that therefore there's district court jurisdiction.

[00:25:51] Speaker 04:
You know, where there's not

[00:25:53] Speaker 04:
A remedy, nonetheless, the FSLMRS precludes just your court jurisdiction.

[00:25:59] Speaker 04:
Again, though, I don't think the court needs to get into that here because there is a route for judicial review.

[00:26:03] Speaker 03:
In law, this court used the term arguably, right?

[00:26:08] Speaker 03:
Arguably within the ambit of the authority.

[00:26:12] Speaker 03:
Any reason to think that's been superseded in a later case or an accident?

[00:26:19] Speaker 04:
I haven't focused on that question.

[00:26:21] Speaker 04:
I'm not certain, but nonetheless, I think that... Certainly the standard you would want.

[00:26:32] Speaker 04:
Yes, it's certainly the standard we would want, but I don't think that the court has to address that because I think there's a very easy way to say that the FLRA has authority here, has jurisdiction here, through the multiple routes that we've identified.

[00:26:50] Speaker 04:
I'm happy to answer other questions about jurisdiction.

[00:26:52] Speaker 04:
I know I'm over time.

[00:26:53] Speaker 04:
Also happy to address the merits.

[00:26:55] Speaker 08:
We have a question on the merits if we were to reach them.

[00:27:01] Speaker 08:
I guess I'm wondering, so the district court here found that the presumption of regularity was rebutted.

[00:27:09] Speaker 08:
And so what is the right standard of review for this court reviewing that finding?

[00:27:16] Speaker 04:
So I think that the court can apply a de novo standard of review in cases where the court has on occasion said that there's a clear error standard.

[00:27:27] Speaker 04:
But in those cases, there was really a dispute about the facts.

[00:27:30] Speaker 04:
The facts here are fairly clear.

[00:27:33] Speaker 04:
What the district court relied upon, what the plaintiffs relied upon are a fact sheet, OPM guidance, and the words, the scope of the executive order itself.

[00:27:41] Speaker 04:
There's no dispute over what those three documents say.

[00:27:45] Speaker 04:
The question is,

[00:27:46] Speaker 04:
How do those documents, whether those documents reflect the requirements of the statute, reflect the policy underlying the statute, and that's a legal question.

[00:27:56] Speaker 04:
So I think that in reviewing the district courts holding here that the presumption of regularity was rebutted, this court should apply de novo review.

[00:28:05] Speaker 08:
So the standard of review turns on what sort of regularity is at issue in a particular case?

[00:28:12] Speaker 04:
what kind of questions are raised, whether they're factual questions or legal questions.

[00:28:15] Speaker 04:
And I think that's consistent with the U.S.

[00:28:17] Speaker 04:
bank site that we, the U.S.

[00:28:19] Speaker 04:
bank case that we cite in our FEA reply relief.

[00:28:22] Speaker 08:
And so if the question is largely a legal one, then what is the court considering about regularity?

[00:28:30] Speaker 08:
If, for instance, there's a determination that the president, the president determines that these agencies are

[00:28:37] Speaker 08:
know, national security related agencies.

[00:28:41] Speaker 08:
But also that there is some animus, as the district court said.

[00:28:45] Speaker 08:
Does that, you know, does that sort of mixed motive rebut the presumption of regularity?

[00:28:52] Speaker 04:
I don't think so.

[00:28:55] Speaker 08:
That's sort of what the district court said.

[00:28:58] Speaker 04:
Right.

[00:28:59] Speaker 08:
Well, the presence of what he characterized as animus, um, overcomes regularity.

[00:29:05] Speaker 08:
So there's, there seems to be a legal question about regularity, but then I guess I'm just wondering how far does the presumption of regularity go?

[00:29:13] Speaker 08:
Does the decision have to be both consistent with law and sort of reasonable, like free from animus?

[00:29:19] Speaker 08:
Like, you know, what's the pumpest in regularity?

[00:29:22] Speaker 08:
We don't say very much about this in our cases.

[00:29:24] Speaker 04:
Yeah, the court does.

[00:29:25] Speaker 04:
And I think that here, though, the question is whether the president's determination met the requirements of the statute.

[00:29:32] Speaker 04:
And if the president made the two determinations that are laid out in section 7103B1, then whether he was also motivated by animus, which we certainly dispute.

[00:29:41] Speaker 04:
But even if he was, as the district court found he was, that doesn't rebut that the requirements of the statute were met.

[00:29:49] Speaker 04:
And so the president's executive order should be upheld.

[00:29:53] Speaker 05:
It seems that at least in parts of the district court opinion, the district judge was making a factual finding that the president did not in fact make the two national security determinations.

[00:30:07] Speaker 05:
Is that how you understand the district court's ruling?

[00:30:13] Speaker 04:
I don't think so.

[00:30:13] Speaker 04:
I think that it's more of a legal determination that because the reasons expressed in the fact sheet were in the district court's mind not consistent with the national security requirements laid out in the statute, that therefore the president must not have acted in accordance with the statute.

[00:30:29] Speaker 04:
I think that requires interpreting the fact sheet and how it applies to the

[00:30:36] Speaker 04:
to the requirements of the statute.

[00:30:38] Speaker 04:
Regardless of the standard of review, I certainly think, even if this court does review that the rebuttal of presumption of regularity for clear error, nonetheless, we think that the district court clearly erred.

[00:30:50] Speaker 04:
Also, I just want to put down a marker that, of course, we don't think the court even has to get there because there is no ultra-virus claim against the president when he's acting pursuant to discretion entrusted to him by Congress.

[00:31:00] Speaker 04:
And that's exactly what happened here.

[00:31:03] Speaker 05:
Well, if we just stay on the merits for a minute.

[00:31:06] Speaker 05:
the government argued based on this Oak Ridge case, which the government read to define national security to include any work that affects the productivity or economy of the United States.

[00:31:24] Speaker 05:
And that argument is noticeably absent from the appellate briefs.

[00:31:30] Speaker 05:
So are you

[00:31:33] Speaker 05:
Sort of, do you think that that is an unreasonable reading of the national security term in this provision of the statute?

[00:31:41] Speaker 04:
I don't think it's necessarily an unreasonable reading.

[00:31:44] Speaker 04:
But as your honor, as our briefs make clear, as your question makes clear, I don't think the court has to get there because I think that under any reasonable reading or understanding of the term national security, the president was acting within his discretion and reasonably.

[00:32:00] Speaker 04:
And even if this court did think that the president acted with some overbreath, plaintiffs can't establish an ultra-virus claim because the president

[00:32:08] Speaker 04:
active with overbreath or overly cautiously in protecting national security.

[00:32:12] Speaker 05:
What if their claim was that the president used a definition of national security that is facially overbroad?

[00:32:23] Speaker 05:
That kind of sounds like exactly what ultra virus review is for.

[00:32:26] Speaker 05:
We would be asking, do we know what definition he applied?

[00:32:30] Speaker 05:
And can we tell if it's obviously beyond the terms of the statute?

[00:32:33] Speaker 05:
Isn't that comfortably within what ultra virus review is?

[00:32:37] Speaker 04:
I think that there is, I think that the court would have jurisdiction, I guess, or

[00:32:47] Speaker 04:
putting the jurisdiction issues aside, I think that would be an ultra-various claim.

[00:32:51] Speaker 04:
I don't think the plaintiffs could establish their claim or prove their entitlement to relief on the merits because of some, even if they're, because the ultra-various standard, of course, is a heightened standard.

[00:33:02] Speaker 04:
It's not arbitrary and capricious review.

[00:33:04] Speaker 04:
It's not contrary to law review under the ADA.

[00:33:06] Speaker 05:
I think it's a very deferential review.

[00:33:07] Speaker 05:
The question is, if the president uses, and it is clear that he used,

[00:33:16] Speaker 05:
utterly unreasonable definition of national security, then a court should step in and grant an ultra-virus claim, right?

[00:33:24] Speaker 04:
So I still think that there is this question, I think that where Congress has granted the president discretion.

[00:33:32] Speaker 04:
Assuming the reviewability question.

[00:33:33] Speaker 04:
Assuming the reviewability, yes, I think that your honor is correct.

[00:33:37] Speaker 04:
But certainly here, it is not plain on the facts.

[00:33:40] Speaker 04:
It is not plain from the record that the president applied an improper definition of national security.

[00:33:46] Speaker 05:
Let me ask you about that.

[00:33:47] Speaker 05:
So this relates to Oak Ridge and in the fact sheet and elsewhere, it sort of just says explicitly things like,

[00:33:53] Speaker 05:
The Department of Treasury is excluded because it obviously affects the economic strength of the United States or the IRS collects all of our revenue and affects everything the United States does.

[00:34:05] Speaker 05:
So that's national security work.

[00:34:07] Speaker 05:
That reads, one reading of that is that they have the president applied a reading under which any employee that does anything that promotes the general welfare of the United States is doing national security work.

[00:34:24] Speaker 04:
I don't think that's the proper reading of the fact sheet.

[00:34:26] Speaker 04:
I think that the president was focused on national security here and national defense.

[00:34:32] Speaker 04:
The Secretary of the Treasury is a member of the National Security Council under statute.

[00:34:37] Speaker 04:
So I think it's not unreasonable.

[00:34:38] Speaker 05:
This is the government's explanation.

[00:34:41] Speaker 05:
Treasury performs national security work because it exists to promote the economic and productive strength of the United States.

[00:34:47] Speaker 05:
You may be totally right that Treasury does other things that could fit within a reasonable definition of national security.

[00:34:54] Speaker 05:
But if there's one thing a court can do, you just agreed with me, that we can try to find out what definition the president applied.

[00:35:02] Speaker 05:
And if it is an utterly unreasonable definition, we can't, in fact, have to step in and set aside this order.

[00:35:11] Speaker 04:
I'm not sure where your honor was quoting from in that, if that was a fact sheet.

[00:35:17] Speaker 05:
In the fact sheet, it is then in the NTIU-PI opposition, and then you run through four or five other agencies applying this definition, which is anything that affects the United States economy is national security work.

[00:35:34] Speaker 05:
And now you've abandoned that on appeal.

[00:35:37] Speaker 04:
So for one thing, plaintiffs have not established that the fact sheet was written by the president, reviewed by the president.

[00:35:43] Speaker 04:
I don't think you can necessarily attribute the statements of the fact sheet, certainly not parsing the fact sheet at that level, to the president.

[00:35:50] Speaker 04:
What we know from the president is what's in the executive order.

[00:35:53] Speaker 04:
This court made it clear in AFGE versus Reagan, the president didn't have to explain his determination.

[00:35:57] Speaker 05:
And we attribute statements in a brief by the lawyers representing the president that tell us what definition we used, and we attribute that to the president from the PI oppositions below.

[00:36:07] Speaker 04:
I don't think that we...

[00:36:11] Speaker 04:
I don't think that we below conceded anything with regard to how the president was interpreting national security.

[00:36:17] Speaker 04:
There are certainly ways, even if this court thinks that that is one way that the president might have been thinking when he excluded the Department of Treasury, there are certainly other ways that are certainly consistent with any reasonable definition of national security.

[00:36:32] Speaker 04:
Again, the Secretary of the Treasury is a member of the National Security Council.

[00:36:36] Speaker 04:
The Department of Treasury investigates fraud, investigates financial crimes.

[00:36:40] Speaker 04:
investigatory work.

[00:36:42] Speaker 03:
That's right.

[00:36:46] Speaker 05:
That's right.

[00:36:47] Speaker 05:
Just to be clear, I do think courts ought not second-guess any determination like that.

[00:36:52] Speaker 05:
The concern would be if the record reveals or suggests that the president didn't make those determinations.

[00:36:58] Speaker 05:
Instead, there was a meeting where they applied the definition that the government defended below,

[00:37:04] Speaker 05:
and they applied it to each agency.

[00:37:06] Speaker 05:
And the court absolutely should not be second-guessing fact-based, policy-based determinations.

[00:37:12] Speaker 05:
But if it is just a purely question of statutory interpretation, that seems like something a court has to do.

[00:37:19] Speaker 04:
So again, I don't think that you can attribute necessarily the fact sheet to the president.

[00:37:23] Speaker 04:
I think that even if the government has relied on Oak Ridge as one reason that the president's determination was correct, I don't think it has asserted that the president was applying and only applying the definition of Oak Ridge and to the exclusion of any other definition of national security, certainly.

[00:37:43] Speaker 03:
Does the statute require the president to or seem to on its face to designate only a subdivision if only that subdivision has a primary responsibility?

[00:37:56] Speaker 04:
No, the statute allows the president to designate an agency or a subdivision as long as the agency or subdivision has as a primary function intelligence, counterintelligence investigation or national security work.

[00:38:10] Speaker 03:
And so it's reasonable to say that a department

[00:38:15] Speaker 03:
has a primary responsibility for national security work when some very small subdivision thereof does have all of the work, all of the national security work in that department.

[00:38:27] Speaker 04:
I think you have to look at the circumstances as a whole.

[00:38:30] Speaker 04:
I don't think that it is necessarily the case that because one part has a certain primary function, that it is necessarily the whole's primary function.

[00:38:39] Speaker 04:
But it certainly can be.

[00:38:40] Speaker 03:
But doesn't the president then have some obligation to specify where it really is the primary function, since the consequence is overwhelmingly felt by people who don't have that?

[00:38:54] Speaker 04:
I think the president could say this agency, Department of Defense, Department of Energy, has as a primary function national security work.

[00:39:04] Speaker 04:
And even if there are subdivisions that do not, that is still the primary function of the agency.

[00:39:10] Speaker 04:
And the president doesn't need to go to a lower level.

[00:39:12] Speaker 03:
You're assuming that's the primary function at the departmental level.

[00:39:16] Speaker 03:
That's correct.

[00:39:16] Speaker 03:
I'm asking you to assume it's only at the subdivision level.

[00:39:19] Speaker 04:
So I don't think that the president

[00:39:22] Speaker 04:
I don't think that was the way that the president acted in this executive order.

[00:39:26] Speaker 04:
So there are certain subdivisions that are excluded, where the president did not exclude the department, the agency as a whole.

[00:39:33] Speaker 04:
And so the president clearly was not just looking at one subdivision saying they have a primary function of national security, therefore I'm going to exclude the entire agency.

[00:39:42] Speaker 04:
The president did do tailoring.

[00:39:44] Speaker 03:
What do you make of the executive order's delegation to the secretaries of veteran affairs and defense?

[00:39:51] Speaker 03:
to reverse the executive order with respect to subdivisions of their departments.

[00:39:59] Speaker 03:
So now the Second Veterans Affairs did do that and then rescinded it some months later.

[00:40:06] Speaker 03:
That's correct.

[00:40:07] Speaker 03:
About six months they

[00:40:09] Speaker 04:
That's correct.

[00:40:09] Speaker 04:
The Secretary of Veterans Affairs rescinded his determination.

[00:40:13] Speaker 04:
Plaintiffs haven't challenged that delegation of authority.

[00:40:16] Speaker 03:
I don't think they have standing to because- I'm wondering whether it means that the delegation here that's relevant is to the Secretary of Defense and to the Secretary of Veterans Affairs and not the president.

[00:40:27] Speaker 03:
The president did say, you know, scour this executive order and if you think it's appropriate, undo any exceptions for subdivisions.

[00:40:38] Speaker 03:
And they did and they didn't, depending on which the secretary.

[00:40:41] Speaker 03:
So maybe he's done all he should do on that.

[00:40:44] Speaker 04:
So the president was exercising his own authority invested in him by Congress when he excluded these agencies and subdivisions from the provisions of the FSLMRS.

[00:40:55] Speaker 04:
Plaintiffs have not challenged his subdelegation of authority to the secretaries.

[00:41:00] Speaker 04:
And I don't think they would have standing to.

[00:41:04] Speaker 03:
No, I realize that.

[00:41:05] Speaker 03:
I thought it was perhaps

[00:41:08] Speaker 03:
something that would ameliorate any problem if we have it with the president having overly broadly excluded employees of DOD and Veterans Affairs.

[00:41:29] Speaker 04:
Yeah, I think that absolutely, you know, to the extent that the secretaries exercise that authority because they determine that the president has acted over broadly.

[00:41:37] Speaker 04:
I think that certainly does ameliorate any problem.

[00:41:40] Speaker 04:
They haven't done so here or the Secretary of Veterans Affairs did, but then rescinded.

[00:41:44] Speaker 03:
And the president didn't do it with respect to any of the other several departments that were excluded.

[00:41:52] Speaker 04:
That's correct.

[00:41:53] Speaker 04:
And it's in the president's discretion to determine whether, once he's made these determinations to decide whether to exclude agencies and then whether to subdelegate authority to the secretaries.

[00:42:06] Speaker 08:
So Mr. Carvalho, I am interested in here in exactly how far the president's discretion goes.

[00:42:12] Speaker 08:
Because in some of the other cases where we've said a claim was unreviewable, the president had complete discretion.

[00:42:19] Speaker 08:
close a base, don't close a base for any reason at all.

[00:42:22] Speaker 08:
And even in like Dakota Central Telephone, the president could take actions whenever he shall deem it necessary for the national security.

[00:42:30] Speaker 08:
Here, the statute is not quite as open-ended.

[00:42:34] Speaker 08:
He has to make a determination.

[00:42:37] Speaker 08:
that the primary function is about national security, et cetera, et cetera.

[00:42:41] Speaker 08:
It is a presidential determination, but the statute provides certain criteria for that determination.

[00:42:48] Speaker 08:
So how do we think about that in terms of reviewability?

[00:42:52] Speaker 04:
So as an initial matter, I do think that at the very least, the second determination in the statute is just like that in Dakota Central.

[00:42:59] Speaker 04:
So Your Honor quoted the grant of discretion to Dakota Central whenever he shall deem it necessary for the national security or defense.

[00:43:08] Speaker 04:
7103B1B here, whenever he determines that the provisions of this chapter cannot be applied to that agency in a manner consistent with national security requirements or considerations, it's certainly the same amount of discretion vested in the president.

[00:43:21] Speaker 04:
With regard to subsection.

[00:43:23] Speaker 08:
Because it's consistent with national security requirements and considerations is wholly discretionary for the president?

[00:43:32] Speaker 04:
That's right.

[00:43:33] Speaker 04:
Exactly as in Dakota Central, this is something that is, the president is the expert, the executive branch is the expert, Congress also to some extent, in deciding what is necessary.

[00:43:43] Speaker 05:
He applied a facially unreasonable definition of national security, right?

[00:43:47] Speaker 05:
You agreed with me, that's a thing a court should review.

[00:43:50] Speaker 04:
I think that if it were clear that the president were not abiding by the terms of the statute, that the statute was acting for completely different reasons other than those provided by the statute, that could be the basis for an also fierce claim.

[00:44:05] Speaker 05:
I apologize for interjecting, but this is my fundamental question.

[00:44:09] Speaker 05:
Your arguments about non-reviewability suggest that the president ought to almost always win in a case like this.

[00:44:15] Speaker 05:
But the fact that there are statutory terms, national security, primary, that can be judicially reviewed in edge cases means that your threshold argument that courts never review any determination under the statute is at least on a shaky ground.

[00:44:31] Speaker 04:
I think that the plaintiff's claim here is analogous to the claim that the plaintiffs made in Dakota Central where they said that the circumstances were not present where the president could reasonably make the determination that taking control of the telegraph and telephone systems was

[00:44:47] Speaker 04:
necessary for the national security or defense.

[00:44:50] Speaker 04:
And so they necessarily, I think, were asserting that the president had either just acted without regard to the requirements of the statute or had misinterpreted the statutory terms, national security or defense.

[00:45:01] Speaker 04:
And nonetheless, the Supreme Court there said, this is a matter entrusted to the president's discretion.

[00:45:06] Speaker 04:
It's not reviewable by courts.

[00:45:08] Speaker 08:
Mr. Apple, did you previously say in response to Judge Garcia's questions that we could review if it was facially

[00:45:17] Speaker 08:
not about national security.

[00:45:20] Speaker 08:
So I mean, then, did you concede that?

[00:45:23] Speaker 04:
So my exchange with Judge Garcia, I think, was after we get to the question of whether there's an ultra-various claim for a matter that is entrusted to the president's discretion.

[00:45:34] Speaker 04:
I think that we had agreed that we were talking at the point where the court has decided that you can make such an ultra-various claim here.

[00:45:41] Speaker 04:
Once you're applying that ultra-various standard, I think the question is whether the president has just ignored the terms of the statute.

[00:45:50] Speaker 04:
But again, I do think that you have that threshold reviewability.

[00:45:53] Speaker 08:
But I guess the question is, what is the relationship between those things?

[00:45:57] Speaker 08:
So if we conclude that

[00:46:01] Speaker 08:
you know, if we conclude that, you know, we're at that stage and the president has made that type of determination, does that affect, does it kind of go back to whether it is reviewable in the first place?

[00:46:11] Speaker 04:
I don't think so.

[00:46:12] Speaker 08:
I, you know, the question, because like, how do I mean, these things are starting to blur together.

[00:46:18] Speaker 04:
Yeah, and I do want to make clear because these are, I think, separate questions.

[00:46:23] Speaker 04:
The first question, once setting aside jurisdiction, once you get to the merits, the first question is whether this is the type of statute where Congress has entrusted the...

[00:46:33] Speaker 04:
discretion to the president, and there's no basis for judicial review of that discretion.

[00:46:38] Speaker 04:
We think the answer is yes, again, comparing to Dakota Central.

[00:46:41] Speaker 08:
I know I never finished my answer to your honest question about the one statutory provision that is amenable to ultra various review.

[00:46:49] Speaker 04:
That's correct.

[00:46:51] Speaker 04:
That's correct.

[00:46:52] Speaker 04:
We interrupted your answer about B1.

[00:46:54] Speaker 04:
Yes, even subsection B1, the statute makes clear that the president may exclude an agency when the president determines that an agency has as a primary function such and such work.

[00:47:06] Speaker 04:
And Congress could have said the president may exclude an agency that has as a primary function this type of work if the president determines it's necessary for national security.

[00:47:16] Speaker 04:
But Congress was clear that even B1

[00:47:20] Speaker 04:
is a determination for the president to make.

[00:47:23] Speaker 04:
And that's a vesting of discretion in the president.

[00:47:27] Speaker 04:
It's not a judicially findable fact.

[00:47:29] Speaker 04:
And I think there's good reason to think that Congress would want to do that.

[00:47:32] Speaker 04:
Whether an executive agency performs national security work is really a question that the president is best situated to determine with the president's understanding of the national security threats,

[00:47:43] Speaker 04:
with the president's understanding of how agencies work together, how they work independently to address those threats.

[00:47:49] Speaker 04:
And it's not something that the courts have particular expertise in.

[00:47:54] Speaker 05:
So there's no difference in terms of our reviewability between this statute and a statute that said the president can exclude agencies whenever he determines it's in the interests of the United States.

[00:48:06] Speaker 04:
I think that's correct.

[00:48:09] Speaker 04:
Congress has set out guidelines that the president has to apply.

[00:48:13] Speaker 04:
I don't think that there is no statutory cause of action, certainly.

[00:48:18] Speaker 04:
Congress could have also set out this exact same statute, the president makes the determination, that also provided a cause of action.

[00:48:25] Speaker 04:
Here, there's no cause of action.

[00:48:26] Speaker 04:
So where you're operating without a cause of action, ultra virus review, your honor is correct.

[00:48:32] Speaker 04:
And if Congress

[00:48:33] Speaker 04:
He thinks that there needs to be some judicial check on the president's exercise of his discretion.

[00:48:38] Speaker 04:
It can create a statutory cause of action.

[00:48:40] Speaker 04:
It can, of course, amend the statute to take away that discretion from the president.

[00:48:44] Speaker 04:
But here, Congress hasn't done those things.

[00:48:51] Speaker 04:
For the questions, we asked the courts to vacate the preliminary injunctions below.

[00:48:55] Speaker 08:
Thank you.

[00:48:55] Speaker 08:
We'll give you some time.

[00:49:07] Speaker 01:
may please the court.

[00:49:09] Speaker 01:
I'm Bar Shah on behalf of the Appellee National Treasury Employees Union.

[00:49:13] Speaker 01:
The executive order here nullified nearly all of Congress's statute to eliminate the collective bargaining rights of three quarters of the federal employees who had them.

[00:49:23] Speaker 01:
And the government argues that if the president wants to undo all of the statute's coverage, he can do it.

[00:49:30] Speaker 01:
And the courts can't do anything about it so long as he invokes the statute's narrow national security exemption

[00:49:37] Speaker 01:
I'd like to address three things today.

[00:49:39] Speaker 01:
First, the jurisdictional question that the court discussed with my friend on the other side.

[00:49:44] Speaker 01:
Second, why are Altavira's claim is reviewable under this court's precedent and likely to succeed?

[00:49:51] Speaker 01:
And third, why the district court's reputable harm holding, which is based on extensive factual findings in Court of Appeals precedent regarding what is lost when employers do not recognize unions, is correct.

[00:50:06] Speaker 01:
First, on jurisdiction, the government has presented its jurisdictional argument to 12 judges, including seven on this court.

[00:50:19] Speaker 01:
And none has indicated any agreement with it.

[00:50:24] Speaker 01:
Judge Garcia asked if the government's taken a position on the authority's jurisdiction.

[00:50:31] Speaker 01:
It has.

[00:50:33] Speaker 01:
In the OPM guidance that was issued contemporaneously with the executive order, OPM stated, and OPM is a defendant in this action, OPM stated, quote, a union no longer has standing to file an unfair labor practice charge.

[00:50:48] Speaker 01:
against an excluded agency or subdivision because that agency or subdivision is no longer subject to the provisions of the statute.

[00:50:56] Speaker 08:
But Mr. Shaw, I mean, on a jurisdictional question, irrespective of the party's, you know, arguments, we have an independent obligation to determine our jurisdiction.

[00:51:06] Speaker 01:
Indeed, Your Honor.

[00:51:06] Speaker 08:
So even if the government takes arguably inconsistent positions, we still have to determine whether the district court had jurisdiction here.

[00:51:15] Speaker 01:
Yes, Your Honor.

[00:51:16] Speaker 01:
Here, though, the party's position should inform the court's analysis.

[00:51:20] Speaker 01:
And here the parties agree.

[00:51:21] Speaker 01:
If you're an excluded agent to your subdivision, you are outside of the statute's coverage.

[00:51:27] Speaker 01:
That's what OPM said.

[00:51:28] Speaker 08:
That is a different question, though, about whether the FRA or the board has the authority to determine its own jurisdiction.

[00:51:39] Speaker 08:
Well, I think that's a different question.

[00:51:41] Speaker 08:
You know, it may well be that if the authority concludes that the EO is valid, then it won't have jurisdiction, but it has jurisdiction to determine its jurisdiction.

[00:51:53] Speaker 01:
Yes, your honor.

[00:51:55] Speaker 01:
So the party's positions that we get things so far, I would agree with your honor there, though I do think it informs the analysis.

[00:52:02] Speaker 01:
And even as to the Department of Treasury, another defendant in this action, the government has stated to a different federal court, this one in the Eastern District of Kentucky, that the Department of Treasury is outside of Chapter 71, our statute,

[00:52:16] Speaker 01:
So therefore the government and the action it filed against NTU said federal district court jurisdiction is appropriate.

[00:52:24] Speaker 01:
Those things are not as positive.

[00:52:26] Speaker 01:
I agree with your honor, but they informed the analysis.

[00:52:29] Speaker 05:
But that's still the way.

[00:52:31] Speaker 05:
So Judge Rao's question was, or a version of it is,

[00:52:37] Speaker 05:
Will the FLRA decide a challenge to the EEO's validity or not?

[00:52:43] Speaker 05:
And it seems like no one is really sure, or do you think they will or they won't?

[00:52:48] Speaker 05:
And what evidence do you have for that position?

[00:52:51] Speaker 01:
The authority is not going to decide that question if it follows its precedent.

[00:52:56] Speaker 01:
It will dismiss any action before it involving an excluded agency for lack of jurisdiction if it follows its own precedent.

[00:53:03] Speaker 05:
And the key question is, in any of those cases, did the union try to dispute the EO's validity?

[00:53:11] Speaker 05:
And the FLRA said, I can't consider that.

[00:53:14] Speaker 05:
We're dismissing.

[00:53:16] Speaker 01:
I don't believe that occurred, Your Honor.

[00:53:17] Speaker 01:
I think this situation really stands alone and precedent only guides us so far because of the extreme facts of this situation we've never had.

[00:53:25] Speaker 08:
Why are the unions, according to the government, the unions have asked the FLRA to hold these cases in abeyance waiting for this court's decision?

[00:53:35] Speaker 08:
But why not let the authority go forward?

[00:53:38] Speaker 08:
Because certainly, well, I assume at least it's likely that whatever they hold on that matter, then the unions could get direct review from that decision in the Court of Appeals.

[00:53:49] Speaker 08:
So why would that not be sufficient in terms of meaningful review, irrespective of what they decide?

[00:53:55] Speaker 08:
I mean, if they decide they agree with the EO, EO is valid, you can come to the Court of Appeals, as opposed to through the district court.

[00:54:04] Speaker 08:
So but the unions apparently, I don't know if that's true.

[00:54:07] Speaker 08:
I mean, you can tell me if it's not true that they've asked the authority not to decide the question.

[00:54:11] Speaker 01:
So Your Honor, in every show cause order the authority issued, it cited its own precedent requiring dismissal of actions against excluded agencies or subdivisions, foreshadowing the likely outcome of for each of those cases.

[00:54:26] Speaker 08:
But irrespective of that outcome, you could still come to the Court of Appeals from that outcome.

[00:54:32] Speaker 01:
So two things there, Your Honor.

[00:54:34] Speaker 01:
One is our request to the authority to hold cases in abeyance was to say, was a protective request, number one.

[00:54:44] Speaker 01:
But more broadly, true, an authority dismissal

[00:54:50] Speaker 01:
could be appealable to a court of appeals.

[00:54:53] Speaker 01:
But there is no case, there's none, in which an unregulated party has been forced to go through the statute's administrative procedures.

[00:55:01] Speaker 01:
And here, there's no dispute between the parties that the defendants here in NTU's case are unregulated by the statute.

[00:55:07] Speaker 01:
That's a central piece of the analysis.

[00:55:11] Speaker 01:
But here's the other.

[00:55:12] Speaker 01:
And it goes to the type of claim dialogue that occurred earlier this morning.

[00:55:17] Speaker 01:
And that's centered on this court's decision in Loy, for example.

[00:55:21] Speaker 01:
And Your Honor Judge Ginsburg, you asked if any subsequent decisions have perhaps painted Loy in a different color or changed the analysis in some way.

[00:55:32] Speaker 01:
And the answer is the Supreme Court's decision in Axon Enterprises does add a pragmatic gloss to the analysis here that's highly relevant.

[00:55:43] Speaker 01:
In Axon, the court talked about how there's a difference between a 30,000 foot question, a gateway question as Judge Garcia came to this type of question, versus a more granular question as to an agency decision or agency procedure.

[00:56:02] Speaker 01:
where it is that 30,000 foot question, that is the type of question under Axon Enterprises where federal court jurisdiction is appropriate.

[00:56:12] Speaker 01:
Here it's nothing like, Louis, where they were trying to prompt the authority to act in a very discreet way to prompt an FLRA representation election.

[00:56:22] Speaker 01:
That's not the type of narrow agency action that's at issue here.

[00:56:25] Speaker 01:
We're talking about

[00:56:27] Speaker 01:
Congress's entire collective bargaining statute being nullified in terms of three quarters of his coverage.

[00:56:33] Speaker 01:
That's an entirely different question than the types of discrete granular questions that Axon spoke to in terms of being appropriately channeled to administrative agencies.

[00:56:44] Speaker 08:
So how does this court draw a line between

[00:56:49] Speaker 08:
what I take you're suggesting are sort of questions that are too big for the statutory scheme, because I take it that NTU agrees that this is a comprehensive scheme where Congress intended a certain amount of channeling over statutory questions.

[00:57:06] Speaker 08:
Do you have any cases where we've carved out big questions?

[00:57:12] Speaker 08:
Once you decide that the agency has expertise over the statute in general, why would certain statutory questions be carved out from that to go to district court?

[00:57:25] Speaker 08:
And how would we possibly draw that line?

[00:57:28] Speaker 01:
So two things, Your Honor.

[00:57:31] Speaker 01:
Despite the existence of this comprehensive scheme, we're on the outside looking in.

[00:57:36] Speaker 01:
We do not have access to it.

[00:57:38] Speaker 01:
That's our position in the government's that if you're an agency defendant in our action, you are outside of the statute.

[00:57:46] Speaker 08:
But more broadly, I mean, outside the statute because of the EO, correct?

[00:57:51] Speaker 08:
So we have to assume that EO is valid.

[00:57:56] Speaker 08:
You want to be kicked out of the scheme.

[00:57:58] Speaker 08:
But then you want a ruling from us to say that the EO is invalid on the merits.

[00:58:04] Speaker 08:
It's a very, very strange posture to be in.

[00:58:07] Speaker 01:
Well, that's just a distinction between the facts.

[00:58:10] Speaker 01:
We have been kicked out of the statute.

[00:58:12] Speaker 01:
We have been excluded versus the remedy we seek, which is declare the executive order unlawful and bring us back within the statute's coverage.

[00:58:24] Speaker 08:
But the fact that you say has occurred is only if the president's EO is lawful and your position is that it's unlawful.

[00:58:32] Speaker 08:
So maybe you are within the statutory scheme.

[00:58:34] Speaker 01:
Well, two things there, Your Honor.

[00:58:36] Speaker 01:
I think the fact that we're relying on is the fact that the EO issued and is in effect, not as lawfulness.

[00:58:42] Speaker 01:
It issued, it's in effect.

[00:58:44] Speaker 01:
We do not have access to the statute's administrative procedures.

[00:58:50] Speaker 01:
That's the primary thing that we're relying on here.

[00:58:54] Speaker 08:
But that's not really the Thunder Basin question, right?

[00:58:59] Speaker 08:
The Thunder Basin question is at least arguably a more formal question about whether such a statutory scheme exists and whether the claim is of the type that can go through that scheme.

[00:59:13] Speaker 01:
And this is where I think, Your Honor, that Axon does very importantly add a pragmatic gloss to the Thunder Basin framework.

[00:59:23] Speaker 01:
It speaks to whether judicial review would come too late, for example, to be meaningful.

[00:59:28] Speaker 01:
Here, unlike Thunder Basin itself, where it was a garden variety, mining enforcement dispute, where the mining company could still

[00:59:37] Speaker 01:
continue on.

[00:59:37] Speaker 01:
Here, we've had two thirds of our workers taken away.

[00:59:41] Speaker 01:
We can't collectively bargain for them.

[00:59:44] Speaker 01:
Their rights are gone.

[00:59:45] Speaker 08:
I understand this is a much bigger action, but that doesn't tell us about the Thunder Basin factors, does it?

[00:59:52] Speaker 08:
I mean, the Thunder Basin factors don't account for that type of, you know, oh, this is a, you know, using, you know, it's like a major question.

[01:00:00] Speaker 08:
And so we get out of Thunder Basin or something like that.

[01:00:03] Speaker 01:
Well, Exxon Enterprises does speak to that, Your Honor.

[01:00:05] Speaker 01:
It talks about a 30,000 foot question versus a more granular question.

[01:00:10] Speaker 01:
And here, indeed, it is a 30,000 foot question about this sweeping unprecedented in scope executive order that nullifies most of Congress's comprehensive federal labor relations scheme.

[01:00:23] Speaker 08:
Are you arguing that the delegation in the statute is invalid?

[01:00:28] Speaker 08:
That this authority that's been delegated to the president is invalid?

[01:00:32] Speaker 08:
I didn't see any argument like that.

[01:00:35] Speaker 01:
No, Your Honor, we're not.

[01:00:37] Speaker 01:
What we're saying about the statute is 7103B1 has discernible limits that should be imposed by this court.

[01:00:46] Speaker 01:
That it's not the Dalton type scenario where it's unlimited discretion to close military bases.

[01:00:53] Speaker 01:
There are discernible limits in 7103, whether it's the primary function language, the national security language, or the final sub-provision.

[01:01:03] Speaker 01:
That encourages the president to take one more look, even if there is an agency or subdivision with the primary function of national security work, to make sure that they still nonetheless cannot be covered by the statute consistent with national security.

[01:01:18] Speaker 01:
those are discernible limits that it's this court's obligation.

[01:01:22] Speaker 05:
Just going back to the jurisdictional questions.

[01:01:25] Speaker 05:
One 30,000 foot view of this is the one you suggested that this is a gateway threshold question, which should be resolved in district court.

[01:01:34] Speaker 05:
And the government's response would essentially be sure, but it's still a dispute about a provision of this statute.

[01:01:43] Speaker 05:
And so it should go.

[01:01:44] Speaker 05:
This doesn't come up very often or ever, but the FLRA is the one with expertise over the statute in general.

[01:01:51] Speaker 05:
And I would just like to hear how you respond to that framing of the argument.

[01:01:55] Speaker 01:
Your Honor, I believe that goes to the second two factors of the Thunder Basin Framework, which as Axon describes, those were intended to give the agency a heightened role in matters that customarily handles and can apply distinctive knowledge to.

[01:02:10] Speaker 01:
The authority doesn't customarily handle these questions.

[01:02:13] Speaker 01:
It's never decided whether an executive order like this is valid or not.

[01:02:18] Speaker 01:
So it cannot apply its distinctive knowledge to that question, especially in this day and age, post-loop or bright, where anything it says will not get deference in any event.

[01:02:31] Speaker 08:
It's not really about deference.

[01:02:32] Speaker 08:
I mean, an agency can have expertise in interpreting its statute without necessarily having to get judicial deference on that question.

[01:02:40] Speaker 08:
Those are two separate legal questions.

[01:02:44] Speaker 01:
Well, it goes to the value of that determination by the administrative agency.

[01:02:48] Speaker 01:
But regardless, the authority doesn't handle these questions.

[01:02:51] Speaker 01:
It has never decided a question like this regarding the national security exemption.

[01:02:57] Speaker 08:
So the unions make a number of kind of functional arguments about how hard it is to get review before the FLRA or the board in this context.

[01:03:06] Speaker 08:
But the government points to the

[01:03:10] Speaker 08:
the fact that can petition for clarification that any party can petition for clarification.

[01:03:15] Speaker 08:
Is there some reason why that is not an adequate way of getting review by the FLRA?

[01:03:22] Speaker 01:
So Your Honor, we're not arguing that it's hard to get authority review or that it... Well, you've made a lot of arguments that it's impossible.

[01:03:29] Speaker 08:
There's no general counsel, even if there were, and they decided not to prosecute a ULP.

[01:03:34] Speaker 08:
There are a lot of these functional arguments that you can't really get this question before the authority.

[01:03:41] Speaker 08:
There are a lot of arguments like that that have been made, right?

[01:03:43] Speaker 08:
So there is this petition for clarification.

[01:03:45] Speaker 08:
Is there any reason to think that that's not available here?

[01:03:48] Speaker 08:
Because that was, I think,

[01:03:50] Speaker 08:
I think it was raised in the government's reply brief.

[01:03:52] Speaker 08:
So I want to give you an opportunity to respond to whether you think that is inadequate in some way that hasn't been briefed.

[01:03:59] Speaker 01:
Yeah, I think as to an excluded agency or subdivision, one that's been taken out of statute's coverage, if a union were to file a unit clarification petition to try to override that executive order, that would be a meaningless exercise.

[01:04:13] Speaker 01:
That wouldn't.

[01:04:13] Speaker 08:
But it's not a motion for clarification to override the EO.

[01:04:18] Speaker 08:
It's a petition for clarification to determine whether the EO is consistent with the statute.

[01:04:23] Speaker 08:
And it may well be that the FLRA says, yeah, we think the EO is valid.

[01:04:30] Speaker 08:
you can get appellate review if you're in an Article III court.

[01:04:33] Speaker 08:
So why do you have to be able to have district court review?

[01:04:37] Speaker 01:
So a unit clarification petition, it goes to employees who you think should be covered, whereas the executive order here, relying on a different part of the statute, carves out agencies or subdivisions.

[01:04:50] Speaker 01:
So I do not think you could clarify through an authority petition to have

[01:04:55] Speaker 01:
say, DOD workers covered by the statute while the executive order exempting DOD is on the books.

[01:05:03] Speaker 08:
Why do you not think that?

[01:05:05] Speaker 08:
Why is that not possible?

[01:05:08] Speaker 08:
You haven't explained why it's impossible.

[01:05:10] Speaker 08:
You might think that the authority is going to disagree, but why is it not a possible avenue of review?

[01:05:17] Speaker 01:
Well, two things there, Your Honor.

[01:05:18] Speaker 01:
I think the authority would be bound to disagree in light of the executive order, but then that is not an appealable determination.

[01:05:26] Speaker 08:
Why would that not be appealable?

[01:05:28] Speaker 01:
Under the statute, unit clarification petitions are not appealable to a federal court.

[01:05:34] Speaker 08:
Can you cite a provision that says that?

[01:05:37] Speaker 01:
It goes to 7123C.

[01:05:39] Speaker 01:
So only decisions by the three-member authority are reviewable in a court of appeals.

[01:05:43] Speaker 01:
The unit clarification petition would be decided by the regional director.

[01:05:47] Speaker 08:
But isn't the decision from the regional director appealable to the authority?

[01:05:52] Speaker 01:
That is appealable to the authority.

[01:05:54] Speaker 01:
I think there may be a card out.

[01:05:56] Speaker 08:
So if it's appealable to the authority, then the authority would make a decision, and then that decision would be appealable to the court of appeals, correct?

[01:06:06] Speaker 01:
So 7123A2 talks about how determinations involving an appropriate unit determination, which is what we're talking about, those are not

[01:06:21] Speaker 03:
I'm not sure why we're talking about a unit determination as to which employees are in or out of a bargaining unit.

[01:06:28] Speaker 03:
I thought we were talking about an obligation to bargain.

[01:06:32] Speaker 03:
A clarification petition, and that purpose would not be about unit determination.

[01:06:39] Speaker 03:
It would be about saying, I'm the real union.

[01:06:42] Speaker 03:
Tell them that they've got to bargain with me.

[01:06:45] Speaker 01:
So that type of argument where we're saying we should be the exclusive broadening representative of this unit.

[01:06:57] Speaker 03:
The units have been determined.

[01:06:58] Speaker 03:
You already went through that some years ago.

[01:07:01] Speaker 03:
Yes.

[01:07:02] Speaker 03:
I know what your units are.

[01:07:03] Speaker 03:
You don't need clarification on that.

[01:07:05] Speaker 01:
Right.

[01:07:05] Speaker 01:
I took your honor's question to be about determinations about the scope of our units, but I may have misunderstood that question.

[01:07:16] Speaker 08:
I mean, I think it's about the.

[01:07:20] Speaker 05:
Can I try a version of it, which is the statute that we're focused on 7111 B2 says a petition can be filed by any person seeking clarification of a matter relating to representation.

[01:07:35] Speaker 05:
So just on a reading that in a vacuum.

[01:07:39] Speaker 05:
The question rises, can't you file a petition like that?

[01:07:42] Speaker 05:
Or maybe, why can't you?

[01:07:44] Speaker 05:
That says, clarify that we're the proper representative because the EO is invalid.

[01:07:51] Speaker 03:
Humphrey says, tell the world that I'm the real commissioner of the FTC.

[01:07:55] Speaker 03:
Trespass plaintiff says, tell the defendant that it's really my land, therefore you trespass.

[01:08:03] Speaker 01:
Yeah, so with that type of petition, Your Honors, and assuming it would go to the three-member authority and then could go to a court of appeals, I think that still misses sort of the two fundamental points that we're resting on, which is number one, these chapter 71 procedures, to include this one, are not available to us under the government's view or ours right now.

[01:08:29] Speaker 01:
But then looking into the axon,

[01:08:32] Speaker 01:
gloss on the Thunderbase framework.

[01:08:35] Speaker 01:
The types of questions here are the broader 30,000 foot questions that the Supreme Court has said belong in federal district court as opposed to before the administrative agency.

[01:08:50] Speaker 01:
Your honor, on judicial review of our claim.

[01:08:54] Speaker 05:
One last question.

[01:08:55] Speaker 05:
We said, I think we've covered this.

[01:08:56] Speaker 05:
I just want to confirm because you didn't.

[01:08:58] Speaker 05:
Really have a chance to address in your briefs, but we're obviously focused on the lawyer case and you've mentioned one distinction is based on axon that may or may not be persuasive.

[01:09:08] Speaker 05:
Do you just standing here have another reason that that the lawyer decision would be distinguishable?

[01:09:14] Speaker 01:
Yes, so.

[01:09:16] Speaker 01:
Lloyd, as your honor's noted this morning, the key phrase was, was there arguable jurisdiction?

[01:09:23] Speaker 01:
Here again, the party's positions are aligned.

[01:09:28] Speaker 01:
There's not arguable jurisdiction here because we are outside the scope of the statute.

[01:09:34] Speaker 01:
But Lloyd is, I think, a good example of a discrete

[01:09:39] Speaker 01:
situation, not the 30,000 foot question.

[01:09:41] Speaker 01:
This was about a single agency and whether a representation election should be held by the authority.

[01:09:48] Speaker 01:
So that's much more the Thunder Basin garden variety statutory claim versus the 30,000 foot claim that we have here.

[01:09:56] Speaker 00:
Thank you.

[01:09:57] Speaker 07:
Any questions?

[01:10:04] Speaker 08:
Um, I think we'll hear over.

[01:10:08] Speaker 08:
Yes, thank you.

[01:10:19] Speaker 00:
Morning.

[01:10:19] Speaker 06:
Good morning.

[01:10:20] Speaker 06:
May I please the court?

[01:10:20] Speaker 06:
I'm Jason Walta for the Federal Education Association and the other educator unions whose members work for the DOD Educational Activity Schools.

[01:10:31] Speaker 06:
With my limited time, I'd like to focus on, I guess, three issues.

[01:10:35] Speaker 06:
One, I don't know if we've quite flogged the channeling issue to death yet, but there's one point I would like to make.

[01:10:43] Speaker 06:
My understanding from the government's argument is that they, I think, essentially concede that an unfair labor practice charge brought right now is a graveyard of unreviewability.

[01:10:57] Speaker 06:
I think they have to concede that a grievance right now is a graveyard of unreviewability because the agency isn't going to process the grievance.

[01:11:07] Speaker 06:
So what they're left with

[01:11:09] Speaker 06:
is to argue that your meaningful review under Thunder Basin, under Axon, is kind of the happenstance.

[01:11:17] Speaker 06:
that you have something already in front of the agency or the happenstance that you have something in front of an arbitrator.

[01:11:24] Speaker 08:
But the petition for clarification that we were just discussing.

[01:11:28] Speaker 06:
Your honor, I think there are two problems with that one.

[01:11:30] Speaker 06:
One is that it would just be kind of passing strange for Congress to have intended for your route for review to be

[01:11:40] Speaker 06:
to kind of misplead and abuse the unit clarification petition.

[01:11:45] Speaker 06:
I mean, there's no there's no dispute about which specific employees are in or out of the unit, right?

[01:11:52] Speaker 03:
And so to kind of a unit determinate, it's not a unit.

[01:11:54] Speaker 03:
It's not a unit determination matter of effecting concerning representation a different part of that statute.

[01:12:00] Speaker 06:
Precisely, it would be a misplead and kind of abuse that.

[01:12:03] Speaker 06:
But anyway, I do believe it's unreviewable under section under 7112, the unit determination.

[01:12:10] Speaker 06:
Okay, why do you believe that?

[01:12:11] Speaker 06:
I believe I don't have the text in front of you, but I do believe it's unreviewable under 7112.

[01:12:15] Speaker 08:
I don't know what the mispleading would be.

[01:12:17] Speaker 08:
You'd say, you know, there's an EO that purports to exempt these agencies and subdivisions, and we want to clarify whether that is valid.

[01:12:29] Speaker 06:
Well, but it's not a general clarification petition.

[01:12:32] Speaker 06:
It's a unit clarification petition, specifically which employees are in or out of the specific unit.

[01:12:39] Speaker 06:
There's no dispute between the parties about what the.

[01:12:42] Speaker 06:
constitution of the unit is, whether employees are in or out.

[01:12:48] Speaker 05:
Are you saying that a clarification petition has some kind of term of art meaning?

[01:12:52] Speaker 06:
It has a very well established term of art meaning about who is in or out of the unit that is in existence, not the existence of the unit itself.

[01:13:00] Speaker 03:
So a unit determination and a petition for clarification are the same?

[01:13:05] Speaker 06:
Well, a unit determination is really at the initial phase.

[01:13:09] Speaker 03:
A petition for unit determination and a petition for clarification are the same thing?

[01:13:14] Speaker 06:
They're not the same thing.

[01:13:15] Speaker 06:
They're separate things.

[01:13:16] Speaker 06:
The unit clarification asks for an existing unit whether additional employees should be added in or existing employees should be taken out.

[01:13:25] Speaker 06:
That's what a unit clarification petition is about.

[01:13:29] Speaker 06:
It's not about the employer's obligation to bargain.

[01:13:31] Speaker 03:
This is a person alleging

[01:13:36] Speaker 03:
Any person seeking clarification of or an amendment to a certification then in effect.

[01:13:42] Speaker 03:
That's what you're describing.

[01:13:43] Speaker 03:
Or a matter relating to representation.

[01:13:46] Speaker 03:
It's something else.

[01:13:51] Speaker 06:
The unit clarification petition in particular is precisely that, is who's in and who's out.

[01:13:55] Speaker 03:
Are you saying the statute's got an extra clause in it that doesn't add anything?

[01:14:00] Speaker 06:
Not that it doesn't add anything.

[01:14:02] Speaker 03:
Or a matter relating to representation.

[01:14:04] Speaker 03:
It can't be that that's just the same thing, clarify the unit or amend the unit.

[01:14:09] Speaker 06:
Well, that is how the statute defines clarifying the unit, who is in and who's out.

[01:14:12] Speaker 03:
This is hopeless.

[01:14:15] Speaker 03:
Frankly, that's ridiculous.

[01:14:16] Speaker 06:
You're saying that A or B is what the statute says and they both mean A. For purposes of a petition for unit clarification, what the authority is being asked to do.

[01:14:29] Speaker 03:
Yes, go ahead.

[01:14:30] Speaker 06:
is is to determine who is in and out of a matter relating to representation.

[01:14:35] Speaker 03:
That's got to be something different.

[01:14:37] Speaker 03:
It's another clause.

[01:14:41] Speaker 03:
I don't believe that's true, Your Honor, and I do believe that it's just surplusage on the statute.

[01:14:46] Speaker 03:
It doesn't add anything.

[01:14:48] Speaker 03:
That's a loser.

[01:14:50] Speaker 03:
You've got to do better than that, really.

[01:14:52] Speaker 06:
Fair enough, Your Honor.

[01:14:53] Speaker 06:
But I do believe that that is not really what that petition is for, and that in any event, it isn't reviewable.

[01:15:00] Speaker 06:
And that the idea to say that your opportunity for meaningful judicial review should depend on the happenstance of already having a matter in front of the FLRA or already having a matter in front of an arbitrator just can't be the case.

[01:15:16] Speaker 03:
I agree with you on that.

[01:15:18] Speaker 06:
So I would like to turn a little bit to the merits and talk a little bit about the Supreme Court's decision in Cole versus Young, which we haven't discussed yet, and why it should really be seen as defining the contours of this case and going very much to the question, Judge Garcia, that you raised about the definition of national security.

[01:15:38] Speaker 06:
But I think Cole... Which case?

[01:15:40] Speaker 06:
Cole versus Young.

[01:15:43] Speaker 06:
but not just as to the application of the definition of national security, but also going to the availability of review, the presumption of regularity, and why the FEA plaintiffs are likely to prevail on the application of ultra virus review.

[01:16:00] Speaker 06:
Also, if I have time, which I doubt I will, I'd like to talk a little bit about the overall structure of the statute and why this national security provision that we're talking about here in the context of the statute really needs to be construed very

[01:16:13] Speaker 06:
So Cole versus Young had dealt with a 1950 act that bore many similarities to 7103.

[01:16:21] Speaker 06:
The law did two things against the backdrop of an existing veterans civil service law that provided for just cause protection and appeal to a civil service commission.

[01:16:33] Speaker 06:
First, it changed that backdrop rule for certain designated agencies and any other agencies that the president designated for national security purposes.

[01:16:42] Speaker 06:
And it changed that backdrop rule by saying that the head of the agency could dismiss an employee based on national security concerns.

[01:16:52] Speaker 06:
President Eisenhower executed an executive order in 1953 that included the entire federal government within this 1950 law and shortly thereafter Mr. Cole the plaintiff in the case

[01:17:04] Speaker 06:
who was an FDA food inspector, he was summarily terminated for national security grounds.

[01:17:10] Speaker 06:
And he first appealed to the Civil Service Commission, which rejected his claim as jurisdictionally barred.

[01:17:17] Speaker 06:
They said they were ousted from jurisdiction.

[01:17:20] Speaker 06:
And then he sued in district court, alleging that his firing was ultra virus.

[01:17:24] Speaker 06:
And the main question before the Supreme Court was the definition of

[01:17:28] Speaker 06:
What is national security?

[01:17:29] Speaker 06:
And the government told the court in that case that this was a matter that was unreviewable.

[01:17:36] Speaker 06:
It's unreviewably committed to the executive, the definition of national security here.

[01:17:41] Speaker 06:
But the court rejected that.

[01:17:43] Speaker 06:
And the court held that to accept the government's position in that case,

[01:17:48] Speaker 06:
was improper because it would allow this narrow exception for national security to swallow the entire statute and deprive employees of the protections that were meant to be broadly applicable to federal employees.

[01:18:03] Speaker 06:
So the court concluded that the term was limited to comprehend only those activities of the government that are directly concerned with the protection of the nation from subversion and foreign aggressiveness.

[01:18:15] Speaker 06:
And it specifically rejected

[01:18:18] Speaker 06:
a version or really precisely the conception of national security that you see in the fact sheet, it rejected the idea that national security could be defined as simply those things that contribute to the strength of the nation only through their impact on the general welfare.

[01:18:37] Speaker 06:
And then in that case, the court held that because the agency had not

[01:18:39] Speaker 08:
So is that court judicial definition of national security applicable to all other statutes that use that term?

[01:18:48] Speaker 06:
Well, I think if we're doing good textualism, it is the definition that applies here.

[01:18:54] Speaker 06:
This is a decision that was on the books when Congress turned its mind to chapter 71.

[01:18:59] Speaker 06:
It was a definition of national security from

[01:19:06] Speaker 08:
a very analogous context doesn't matter here that the statute doesn't say the president can exempt agencies that relate to national security, but that the president determines

[01:19:19] Speaker 08:
whether to exempt for national security reasons, right?

[01:19:23] Speaker 08:
So the president is making a determination about national security, which is, is there any space between that and a statute that just talks about national security in general?

[01:19:33] Speaker 06:
I don't think so, Your Honor.

[01:19:35] Speaker 06:
Actually, if you put the statute in Cole next to the statute,

[01:19:39] Speaker 06:
to 7103.

[01:19:40] Speaker 06:
7103 is much more restrictive than the statute at issue in coal, particularly in a couple of respects.

[01:19:48] Speaker 06:
First, it doesn't just say that the president gets to act on national security issues.

[01:19:52] Speaker 06:
It confines that discretion into important ways.

[01:19:56] Speaker 06:
First he has to decide

[01:19:57] Speaker 06:
that the agency or subdivision at issue has a primary function of national security, narrowly defined.

[01:20:05] Speaker 06:
And then it also says that the chapter provisions of chapter 71 cannot be applied, cannot be applied.

[01:20:13] Speaker 06:
Those are Congress's words, cannot be applied to that agency in a manner consistent with national security, again, narrowly defined.

[01:20:22] Speaker 08:
national security requirements and considerations.

[01:20:26] Speaker 08:
And that's pretty broad, right?

[01:20:30] Speaker 08:
So the president, who is the commander in chief, may decide that

[01:20:35] Speaker 08:
something cannot be applied consistent with national security considerations.

[01:20:38] Speaker 08:
Why would national security considerations be confined to a specific definition that a court came up with about what national security means?

[01:20:48] Speaker 06:
Well, I mean, I think that the court, I think that Congress was operating under the definition from Cole versus Young because that was

[01:20:54] Speaker 06:
But a definitive definition of that term on the books at the time that it enacted Chapter 71, and that they included several restrictions on the exercise of the president's authority.

[01:21:09] Speaker 06:
As I take the government's position, their position essentially is that if you give the executive any discretion, they get all the discretion.

[01:21:20] Speaker 06:
And first of all, I don't think you can square that with the language of the statute.

[01:21:24] Speaker 06:
And I think there's a danger in it, which is to say that it will then discourage Congress from giving the president even limited discretion because judicially interpreted, some discretion now means all the discretion.

[01:21:42] Speaker 06:
And that might not be something that Congress is willing to give away in every circumstance.

[01:21:48] Speaker 06:
But returning to the idea that this was really a definition that was on the books and in front of Congress at the time, Justice Frankfurter talked about when you take a definition of one statute and put in another, you kind of bring the old soil with it.

[01:22:05] Speaker 06:
And the old soil here is obviously the definition itself, but it's also Congress's expectation of reviewability.

[01:22:13] Speaker 06:
In Cole, the court

[01:22:18] Speaker 06:
but reviewed the firing as ultra virus, right?

[01:22:23] Speaker 06:
Even though there was a civil service commission.

[01:22:27] Speaker 06:
And I think that you can anticipate the same to be true, a similar route for challenge to be true under chapter 71 as well.

[01:22:38] Speaker 08:
Mr. Walter, you're over time.

[01:22:39] Speaker 08:
Let me just see if my colleagues have a couple of questions.

[01:22:42] Speaker 05:
So you mentioned that the fact sheet, there are statements in the fact sheet that indicate the president may have used the expansive definition rejected in coal.

[01:22:52] Speaker 05:
And the government says there's no reason you should attribute those statements to the president.

[01:22:58] Speaker 05:
What's your response to that?

[01:22:59] Speaker 06:
I mean, I guess I have a couple of responses.

[01:23:02] Speaker 06:
Is one, they only came around to that view in their reply brief on appeals.

[01:23:06] Speaker 06:
I don't know that that's actually properly before the court.

[01:23:09] Speaker 05:
But these are statements from- They hadn't previously ever asserted that the fact sheet didn't reflect the president's thinking?

[01:23:15] Speaker 05:
Correct.

[01:23:16] Speaker 06:
Correct.

[01:23:17] Speaker 06:
But more to the point, these are statements from the executive.

[01:23:21] Speaker 06:
The executive wasn't required to make them.

[01:23:24] Speaker 06:
And also, the district court's decision on the presumption of regularity doesn't depend on the fact sheet alone.

[01:23:32] Speaker 06:
It depends on the enormous breadth of the executive order itself.

[01:23:38] Speaker 06:
And I think that what is very telling is that there are a number of instances where the government tries to justify the breadth

[01:23:45] Speaker 06:
of the order based on national security functions within agencies that are already excluded under an executive order.

[01:23:54] Speaker 06:
For example, they talk about, I believe it's at page 51 of their briefs, they talk about the importance of the Department of Energy in safeguarding our nuclear stockpile, but the subagency within the Department of Energy that performs that function is already excluded under a 2008 executive order from President George W. Bush.

[01:24:15] Speaker 05:
Relatedly, if we thought it mattered that we needed to be able to tell what definition of national security the president used, one thing you could look to is the fact sheet.

[01:24:30] Speaker 05:
Is there anything else the court could look to to try to figure out, if it can figure out, what definition the president used?

[01:24:38] Speaker 06:
I think it's the fact sheet.

[01:24:40] Speaker 06:
I think it's the breadth of the order that seems, not just the breadth, but also the kind of very puzzling line drawing that it does in other respects.

[01:24:50] Speaker 06:
For example, excluding all fire and police, even those seem to have a fairly crucial national security function, or certainly more crucial than the K through 12 teachers that I represent.

[01:25:04] Speaker 06:
But, you know, as I understand the government's argument, the president could could exempt the entire federal government route and branch and that that would be.

[01:25:17] Speaker 06:
both unreviewable and a proper exercise of the president's discretion under this provision.

[01:25:24] Speaker 06:
If they disagree with that, I'd be happy to hear why that's the case when they're back up on rebuttal, but that simply can't be true.

[01:25:31] Speaker 03:
So if the nation went to war, you don't think the president could say collective bargaining is suspended across the government until the duration of the war is over?

[01:25:40] Speaker 06:
Well, we were at war at the time that President Nixon

[01:25:47] Speaker 06:
instituted the first collective bargaining executive order.

[01:25:51] Speaker 06:
So I don't know that those things are necessarily incompatible.

[01:25:55] Speaker 03:
That the president might not do that doesn't tell you answer my question.

[01:25:59] Speaker 03:
Is there any reason why the president could not do that?

[01:26:04] Speaker 06:
It's certainly conceivable, but it's nothing close to the facts that we have before us right now.

[01:26:09] Speaker 03:
Well, I realize that.

[01:26:10] Speaker 03:
Yes.

[01:26:10] Speaker 03:
Question is, how far your argument goes?

[01:26:13] Speaker 03:
Why doesn't it go all the way and say, no, we couldn't do that?

[01:26:16] Speaker 06:
Well, I think the statute was written to anticipate, I mean, it's written for the ages, right?

[01:26:22] Speaker 06:
It's written to be a safety valve within several safety valves that you find in chapter 71 to allow for national security concerns.

[01:26:34] Speaker 06:
But if the nation is at war, if there is an invasion, I mean, certainly those would be things that we would consider, but they're simply not the facts we have here.

[01:26:43] Speaker 08:
So for the presumption of regularity, the district court concluded that there was animus reflected in the fact sheet or the OPM guidance or something like that.

[01:26:55] Speaker 08:
Does that matter for this determination about the presumption of regularity?

[01:26:59] Speaker 08:
I mean, what happens?

[01:27:03] Speaker 08:
Does this court have to find that there was animus in order for the presumption to be rebutted?

[01:27:09] Speaker 06:
I don't think it needs to find that there was animus.

[01:27:12] Speaker 08:
What is the best non-animus-related reason why the presumption is overcome from your perspective?

[01:27:19] Speaker 06:
Yeah, in the Afchi versus Reagan case, this court talked about the presumption of regularity and said that you could defeat it by showing that the president was indifferent to the purposes and requirements of the act or acted deliberately in contravention of them.

[01:27:34] Speaker 08:
Those are legal questions.

[01:27:35] Speaker 06:
Yes.

[01:27:36] Speaker 08:
So would we review that de novo?

[01:27:38] Speaker 06:
they could be legal questions and they could be fact questions.

[01:27:41] Speaker 06:
I think a determination that the executive was acting based on animus, I think that is a factual determination.

[01:27:48] Speaker 06:
I do think that that is a fact you add into the mix in determining whether the presumption was rebutted.

[01:27:54] Speaker 06:
I think that another factual issue is that the executive was pursuing aims that aren't included in the statute, which was to clear the path.

[01:28:04] Speaker 08:
Is that a factual question or a legal question?

[01:28:06] Speaker 08:
Like looking at the EO, does it

[01:28:08] Speaker 08:
comport with the text and purpose of the statute.

[01:28:12] Speaker 08:
Isn't that a legal question?

[01:28:13] Speaker 06:
I think the question's about kind of underlying intentions and animus.

[01:28:18] Speaker 06:
I think those would be factual questions.

[01:28:20] Speaker 06:
But I agree that things about the scope of it, about the scope of the executive order, and it's kind of unreasonable over-breath and under-inclusiveness, I do believe those are legal questions.

[01:28:31] Speaker 08:
Do motive and intention matter for regularity?

[01:28:34] Speaker 06:
They certainly can, yes.

[01:28:36] Speaker 06:
I mean, they're not dispositive one way or another, but certainly if there is a question of an improper motive, that can certainly go to rebut the presumption of regularity.

[01:28:50] Speaker 05:
Would you agree that if the EO said, I'm using the definition of national security that was rejected in coal, that that might be an indication that

[01:29:00] Speaker 06:
I think that would be an easy case.

[01:29:02] Speaker 06:
I think that would be the easy case.

[01:29:05] Speaker 06:
I think a case where the president exempted the entire federal government would also be an easy case.

[01:29:12] Speaker 06:
But I also don't think that's very far from the case you have in front of you.

[01:29:17] Speaker 08:
Thank you.

[01:29:35] Speaker 02:
May it please the court?

[01:29:37] Speaker 02:
I'm Richard Hearn, and I'm here today on behalf of the American Foreign Service Association and the thousands of members of the US diplomatic corps that AFSA represents.

[01:29:47] Speaker 02:
I'd like to begin by making a few observations on jurisdiction.

[01:29:52] Speaker 02:
A finding of preclusion, in our case, could and almost certainly would preclude all judicial review with regard to a potential

[01:30:05] Speaker 02:
petition that the government refers to brought under section 4111 of the Foreign Service Act.

[01:30:13] Speaker 02:
That first of all I would observe that the government has never argued before their reply brief in this case that that was available to us.

[01:30:23] Speaker 02:
They didn't argue it below.

[01:30:25] Speaker 02:
It wasn't in the opening brief.

[01:30:27] Speaker 02:
And as this court noted not too long ago in United Parcel Service versus Post Regulatory Commission, this court doesn't.

[01:30:37] Speaker 08:
Well, they certainly maintain that there is no jurisdiction.

[01:30:40] Speaker 08:
And then in response,

[01:30:42] Speaker 08:
to the various union arguments that there's functionally no review.

[01:30:45] Speaker 08:
They add an additional avenue for review.

[01:30:47] Speaker 08:
So perhaps you can address why would the petition clarification not be sufficient because your colleagues have not provided an answer to that.

[01:30:56] Speaker 02:
All right.

[01:30:56] Speaker 02:
Section 4111 of the Foreign Service Act is the process for obtaining an initial election to represent employees.

[01:31:08] Speaker 02:
We've already to get an initial certification.

[01:31:12] Speaker 02:
We've already had an election.

[01:31:14] Speaker 02:
If you look at the language of it, it says if you

[01:31:25] Speaker 02:
If a reasonable cause to believe a question of representation exists, there'll be a hearing and then the board shall supervise and conduct an election.

[01:31:33] Speaker 02:
We've already had an election.

[01:31:34] Speaker 02:
We are already the elected representative and have been for many decades of the employees at the State Department and USAID.

[01:31:43] Speaker 08:
What is the language to clarify a matter relating to representation?

[01:31:51] Speaker 08:
Why isn't that at issue here?

[01:31:53] Speaker 08:
And then the regulations also allow petitions to clarify any other matter relating to representation.

[01:32:04] Speaker 02:
I think we see from the context of this language, it's to get an initial

[01:32:15] Speaker 02:
election and certification.

[01:32:17] Speaker 08:
So, your answer is is the same as mister Walters.

[01:32:19] Speaker 08:
Yes, this is not the parts of the statue but only the first part of the statue.

[01:32:25] Speaker 02:
If if if on the record, the of the hearing, a question of representation exists, the board shall supervise or conduct an election by on the question by secret ballot.

[01:32:38] Speaker 02:
It's only referring to getting an election.

[01:32:41] Speaker 02:
I don't have the full statue in front of me.

[01:32:47] Speaker 02:
This would be under 411B, the last full paragraph.

[01:32:56] Speaker 02:
Second sentence.

[01:33:03] Speaker 03:
Just as you say, it would make no sense to have a hearing on the unit determination or who is the appropriate bargaining representative.

[01:33:14] Speaker 03:
That's all covered by the first clauses of B2.

[01:33:24] Speaker 03:
any person seeking clarification of our amendment to a certification that in effect.

[01:33:29] Speaker 03:
Your position is that there is a certification that in effect.

[01:33:32] Speaker 03:
Right.

[01:33:33] Speaker 03:
The government's position would be that there's a matter relating to representation because we've been directed, because the president has directed us not to bargain.

[01:33:45] Speaker 02:
Well, but then the board would order, then the board would order an election that doesn't.

[01:33:50] Speaker 03:
No, no, they would answer the question or resolve the matter relating to representation.

[01:33:55] Speaker 03:
It doesn't have to do with an election.

[01:33:58] Speaker 03:
We know if there is collective bargaining, we know who the agent is, who the union is.

[01:34:05] Speaker 02:
But if the whole sentence, the whole sentence refers ultimately to conducting an election as the remedy.

[01:34:15] Speaker 02:
and then to certify whoever wins the election.

[01:34:17] Speaker 03:
So what do you make of the last clause or a matter relating to representation?

[01:34:21] Speaker 02:
What does that tell you?

[01:34:30] Speaker 02:
As to whether a majority of the employees wish to be represented for the purposes of collective bargaining by the petitioner.

[01:34:40] Speaker 03:
That's often raised, I've seen the phrase in the NLRA context, as a question of representation.

[01:34:46] Speaker 07:
Right?

[01:34:48] Speaker 03:
Well, that's not your statute, I guess.

[01:34:50] Speaker 03:
But anyway, here it's a matter relating to representation.

[01:34:54] Speaker 03:
So I'm not sure why they would depart in that one respect.

[01:34:59] Speaker 02:
So let's take it a step further.

[01:35:02] Speaker 02:
Here's the larger thing that the government is arguing that we're surprised about.

[01:35:06] Speaker 02:
They are suggesting

[01:35:08] Speaker 02:
that subordinate officers of the president, who are now apparently removable at will by the president, can determine whether or not the president acted ultra-virus

[01:35:22] Speaker 02:
And particularly, that sounds astounding in the face of Executive Order 14215 earlier this year, which prohibited any subordinate officers of the president from advancing any interpretation of law that differs from that of the president and the attorney general.

[01:35:43] Speaker 02:
Under Executive Order 14215, the FLRA

[01:35:49] Speaker 02:
excuse me, the FLS, the Foreign Service Labor Relations Board cannot

[01:35:55] Speaker 08:
Oh, even if it's the case, which I'm not sure, given the due process concerns with like, with adjudicative bodies within the executive branch.

[01:36:04] Speaker 08:
I mean, even if assuming you're right that they are bound to follow the president's directive, that still doesn't answer the question of whether you have to go through that channel.

[01:36:16] Speaker 08:
So you have to go to the authority, authority may disagree with you, but then you come to the court of appeals instead of to district courts.

[01:36:25] Speaker 02:
I still don't see how we get there, because the primary thing that the government argued below was we file an unfair labor practice charge.

[01:36:37] Speaker 02:
But that's still up to the regional director and the general counsel.

[01:36:41] Speaker 08:
Well, assuming there's a petition for clarification, because to be honest, I haven't heard a good argument as to why there isn't the possibility of such a petition.

[01:36:48] Speaker 08:
So if such a petition is available, then

[01:36:54] Speaker 08:
know, even if you lose before the authority or the board, you get to come to the court of appeals.

[01:37:01] Speaker 08:
And that's, we like to believe that's meaningful.

[01:37:04] Speaker 02:
Okay, I don't.

[01:37:07] Speaker 02:
My hesitation on that is in my career practicing labor law, I've never seen a petition for clarification be used for

[01:37:16] Speaker 02:
for a purpose as large as this, such as this.

[01:37:19] Speaker 02:
It's just generally been limited to who is and who's not in the bargaining unit, whether new employees are in the bargaining unit, whether somebody's become a sub.

[01:37:27] Speaker 08:
Perhaps it's because this is, as everyone has suggested, a kind of unusual circumstance.

[01:37:32] Speaker 08:
So it wasn't intended.

[01:37:33] Speaker 08:
It doesn't mean that that's not available.

[01:37:35] Speaker 08:
I believe there's a Ninth Circuit case discussing this general approach.

[01:37:44] Speaker 02:
I'm not familiar with it.

[01:37:46] Speaker 08:
I think I singer versus FLRA, the 2009 circuit case.

[01:37:51] Speaker 02:
But but in any event, OK, on the merits, we believe the district court correctly determined that the president lacks authority under the clear text of the Foreign Service Act to exclude the entirety of the Department of State than the entirety of the USAID from coverage by simply referring to the general national security and foreign policy character of the two agencies.

[01:38:15] Speaker 02:
The district court noted that the language of the Foreign Service Act, subject to 10, differs from that of the Federal Service Labor Management Relations Statute, in that it only allows the president to exclude any subdivision of the Department from coverage, as opposed to that of the Federal Service Labor Management Relations Statute, which allows the president to exclude any agency or subdivision thereof.

[01:38:44] Speaker 02:
being able to exclude only any subdivision of the department from coverage is not authority to exclude the whole department because to exclude particular subdivisions, to read that as permission to exclude everybody,

[01:39:00] Speaker 02:
would allow the exception to swallow the rule.

[01:39:03] Speaker 02:
It would also conflict with the language of 4.101 of the statute, in which Congress not only recognized the collective bargaining amongst the foreign services and the public interest, but, quote, that the unique conditions of foreign service employment requires

[01:39:22] Speaker 02:
implementation of modern destructive cooperative relations between management officials and organizations representing members of the service.

[01:39:32] Speaker 02:
Congress would never have enacted the Foreign Service Labor Management Relations Statute, which we know is subchapter 10.

[01:39:40] Speaker 02:
In the first place, if it had any doubts about as a general rule, it would be consistent with national collective bargaining by the Foreign Service officers, would be consistent with national security.

[01:39:52] Speaker 02:
The subchapter 10 is part of a larger comprehensive overall bill addressing

[01:40:00] Speaker 02:
the employment in the Foreign Service.

[01:40:02] Speaker 02:
Congress had 14 days of hearing, produced 258-page committee report.

[01:40:07] Speaker 02:
Congress knew what the Foreign Service officers were doing.

[01:40:12] Speaker 08:
But then they delegated this quite open-ended authority to the president to make exemptions.

[01:40:19] Speaker 02:
We wouldn't categorize it as open-ended.

[01:40:21] Speaker 02:
We would categorize it as a narrow exception, which has never been used in

[01:40:29] Speaker 02:
a half century of collective bargaining at the State Department.

[01:40:32] Speaker 08:
Well, the fact that a power isn't used doesn't mean that it doesn't exist, as I think Judge Ginsburg earlier said.

[01:40:38] Speaker 02:
Well, one place where the government, and we agree, and the government says this on page 22 of the reply brief, is that the statute requires an individualized approach, an individualized assessment

[01:40:55] Speaker 02:
of what the primary function of each subdivision to be excluded is and whether collective bargaining is consistent with national security in each of the subdivisions.

[01:41:08] Speaker 02:
And the executive board, however, hasn't even identified a single subdivision to be excluded.

[01:41:13] Speaker 02:
It only identifies 12 senior officials of the Department of State and says that any subdivisions that report to them are excluded.

[01:41:24] Speaker 02:
There are, in fact, if we- Mr. Hearn, I see you're over time.

[01:41:28] Speaker 08:
I see my colleagues have further questions.

[01:41:31] Speaker 03:
I'll need to look at page 21.

[01:41:35] Speaker 03:
Sure.

[01:41:37] Speaker 03:
Just a moment.

[01:41:41] Speaker 03:
Mr. Hearn, 21 of the reply brief.

[01:41:42] Speaker 03:
22.

[01:41:43] Speaker 03:
22.

[01:41:48] Speaker 02:
You're at the bottom, I believe.

[01:41:56] Speaker 03:
But government does not disagree with plaintiff that the president must make the relevant determinations under 4103B.

[01:42:02] Speaker 03:
respect to each subdivision of the State Department of USA IG that he excludes.

[01:42:07] Speaker 03:
Right.

[01:42:09] Speaker 02:
And then we can look at Joint Appendix, page 249, and we can see that there are seven, at the time of the executive order, there were 734 bureaus and offices in the Department of State to be reduced to 602.

[01:42:27] Speaker 02:
Those are the subdivision.

[01:42:30] Speaker 02:
And if we looked at the executive orders that the prior presidents have issued, we'll see very, very granular identification of entities within various agencies, specific offices.

[01:42:46] Speaker 08:
Is there anything in the statute that requires that?

[01:42:50] Speaker 08:
That requires such granular determinations?

[01:42:54] Speaker 02:
I think that to maybe I would say to practice, maybe it's advisable, but is it legally required to to balance the congressional objective expressed in section four one oh one that the unique attributes of the employment of the Foreign Service requires collective bargaining to manifest to make that as manifest as possible

[01:43:23] Speaker 02:
to balance the two things against each other, 4101, 4103, we would suggest that the exceptions of 4103 need to be as now and as specific as possible to maximize as much as possible the congressional objectives in 4101.

[01:43:48] Speaker 03:
In how many of those 700 subdivisions are Foreign Service officers employed, or roughly how many?

[01:43:55] Speaker 02:
I don't know.

[01:44:00] Speaker 03:
More than one?

[01:44:02] Speaker 03:
It's not something called the Foreign Service, and that's the agency?

[01:44:06] Speaker 03:
Right.

[01:44:07] Speaker 03:
That's correct.

[01:44:08] Speaker 02:
I don't know, but I feel confident to say that if they'd all include members of the Foreign Service, that most of them would include members of the Foreign Service.

[01:44:23] Speaker 03:
So would you say that again?

[01:44:25] Speaker 02:
If they don't all include members of the foreign service, I think that we would find an overwhelming majority of those bureaus and offices have members.

[01:44:32] Speaker 02:
And that includes counselor officers.

[01:44:34] Speaker 02:
And then there's counselor officers and embassies.

[01:44:39] Speaker 02:
They.

[01:44:42] Speaker 02:
So.

[01:44:44] Speaker 02:
And we find it very hard to believe in the first two months of the administration that an analysis was made amongst all 734 bureaus and the analysis all came out the same way.

[01:44:59] Speaker 02:
Basically, just as a district court found, the government simply relied on the general national security character of the Department of State and excluded everybody.

[01:45:13] Speaker 08:
But the government admits... Why would that be irregular, though, where the statute talks about national security considerations in the State Department

[01:45:23] Speaker 08:
is involved with these types of issues?

[01:45:27] Speaker 02:
Yes, of course they're involved in these types of issues.

[01:45:30] Speaker 02:
But the question is whether each one of the 734 bureaus, and it now may be reduced to 602 as part of the reorganization, whether the primary function of each one of those is national security

[01:45:45] Speaker 02:
And if so, whether collective bargaining is inconsistent with the national security considerations in each one of those offices.

[01:45:56] Speaker 02:
And as I said, the government concedes in page 22 of the reply brief that such an individualized assessment must be made.

[01:46:03] Speaker 03:
What's your best example of a subdivision?

[01:46:07] Speaker 02:
Office of protocol.

[01:46:10] Speaker 02:
The office of protocol.

[01:46:14] Speaker 02:
Here are some.

[01:46:15] Speaker 03:
Pretty easy to give offense.

[01:46:17] Speaker 02:
Office of Protocol, Medical Affairs, Office of International Religious Freedom.

[01:46:24] Speaker 02:
Can we say that that's primarily national security?

[01:46:29] Speaker 03:
The terms in the statute is not just national security or national security considerations, is it?

[01:46:34] Speaker 02:
No, the primary function must be national security.

[01:46:37] Speaker 02:
Step one is the primary function national security.

[01:46:41] Speaker 02:
And if so, step two is collective bargaining in that subdivision.

[01:46:46] Speaker 03:
I understand that.

[01:46:47] Speaker 03:
I'm asking whether in the statute there's reference to intelligence, counterintelligence, or any other activities.

[01:46:53] Speaker 02:
Well,

[01:46:57] Speaker 02:
The government has not argued that it's anything other than national security.

[01:47:03] Speaker 02:
Let's assume it could be intelligence.

[01:47:04] Speaker 02:
And even assuming one of those, certainly the Office of International Religious Freedom isn't, and the Office of Democracy, Human Rights, and Labor Protections isn't.

[01:47:14] Speaker 02:
So many offices.

[01:47:18] Speaker 03:
I know someone who served on the Religious Freedom Commission.

[01:47:24] Speaker 03:
friction with certain other nations was an everyday consideration.

[01:47:30] Speaker 02:
That's foreign.

[01:47:31] Speaker 02:
I would say that's foreign relations and not national security, perhaps.

[01:47:35] Speaker 03:
OK, so you say it's just national security, not foreign relations.

[01:47:37] Speaker 02:
That's what the statute says.

[01:47:39] Speaker 03:
That's somehow separable.

[01:47:41] Speaker 03:
Yeah, OK, that's a bit of a stretch.

[01:47:45] Speaker 08:
Any further questions?

[01:47:48] Speaker 08:
Thank you, Mr. Koppel.

[01:47:50] Speaker 08:
Mr. Koppel, we'll give you four minutes.

[01:48:03] Speaker 04:
Thank you, Your Honours.

[01:48:04] Speaker 04:
I'm happy to answer questions about the jurisdictional questions, but we did spend a lot of time on that.

[01:48:09] Speaker 04:
And so unless there are questions, I will just turn to the merits.

[01:48:20] Speaker 04:
give a very broad construction of the holding in Cole versus Young.

[01:48:24] Speaker 04:
In Cole, the Supreme Court assumed without deciding, to be fair, what this court had earlier held, that this president had validly expanded to the Department of Health, Education and Welfare at that time the authorities under the 1950 Act.

[01:48:40] Speaker 04:
And what the Supreme Court held in Cole was simply that

[01:48:44] Speaker 04:
the employee who had been discharged there, the secretary that had done that discharge had not necessarily considered national security at all in effectuating that discharge, but had possibly only considered the employee's loyalty and not how that might relate to national security.

[01:49:01] Speaker 04:
Even under the definition of national security that Hull versus Young

[01:49:07] Speaker 04:
gives, however, we think it is entirely reasonable for the president to exclude the agencies involved here.

[01:49:15] Speaker 04:
Plaintiffs mentioned two-thirds of the federal workforce, three-quarters of the federal workforce, but I think that those statistics are a little bit misleading.

[01:49:22] Speaker 04:
Even if you just take

[01:49:24] Speaker 04:
The core, what everyone has to agree, our agencies with primary function of national security work, investigative work, the Department of Defense, the largest employer of civilians, the Department of Veterans Affairs, Department of Homeland Security, Department of Justice, those four agencies by themselves comprise approximately 60 to 70% of the federal workforce.

[01:49:47] Speaker 04:
So when plaintiffs bandy about these numbers, what they're really talking about in the main is these really core national security agencies.

[01:49:56] Speaker 04:
Again, we absolutely think that the president reasonably determined that the other agencies also- Is that a fair description of the Department of Veterans Affairs?

[01:50:04] Speaker 05:
You say in the brief that it is the backup healthcare provider in times of war.

[01:50:10] Speaker 05:
Obviously, the default operation of the Department of Veterans Affairs is essentially a hospital and benefits system.

[01:50:17] Speaker 05:
How often has that wartime VA assistance been called upon?

[01:50:23] Speaker 05:
Do you know?

[01:50:24] Speaker 04:
I don't know how often the VA has performed that function, but the VA is critical.

[01:50:30] Speaker 04:
With an all-volunteer army, with an all-volunteer military, it's critical that the members of our military, the potential recruits, have the assurance that they and their families will be taken care of.

[01:50:44] Speaker 04:
And the veteran affairs ability to perform its function and to provide the care that

[01:50:51] Speaker 04:
our veterans and their families need is essential to the military's recruitment efforts.

[01:50:57] Speaker 03:
Mr. Koppel, would you respond to most recent Mr. Hearn pointing us to page 22 and 3 of your reply brief?

[01:51:08] Speaker 04:
Yeah, we don't disagree that under the sub chapter 10 of the Foreign Service Act, which is somewhat different than the FSL MRS, the president does need to make the determination at the subdivision level.

[01:51:22] Speaker 04:
But we certainly don't think that that means.

[01:51:25] Speaker 04:
the micro level of 734 bureaus.

[01:51:29] Speaker 04:
The president didn't hear in the executive order simply say we're going to exclude the State Department from the provisions of the Foreign Service Act.

[01:51:37] Speaker 04:
The president did go through subdivisions of the State Department and say we're going to exclude these subdivisions.

[01:51:44] Speaker 05:
Each time it says a subdivision reporting to X, that might be 80 subdivisions.

[01:51:48] Speaker 04:
I think that if you go down the hierarchy, you can almost always, until you get to some level, come up with more subdivisions.

[01:51:59] Speaker 04:
Subdivisions upon subdivisions and offices within subdivisions, there's no indication in the statute.

[01:52:04] Speaker 04:
Did the president think about what constitutes a subdivision?

[01:52:08] Speaker 05:
I can't speak to what the president was considering.

[01:52:11] Speaker 05:
The face of the order doesn't reveal that he thought about the statutory finding that you concede is required.

[01:52:19] Speaker 04:
I think it's very clear that he did, because with regard to certain other agencies, the president excluded the agency level.

[01:52:25] Speaker 04:
The fact that the president excluded the State Department and the subdivision level.

[01:52:29] Speaker 05:
But it's now, Mr. Hearn has crystallized that there is a potentially meaningful distinction between those two cases and the AFSA case.

[01:52:36] Speaker 05:
You did have to look at each individual subdivision and not just exclude

[01:52:43] Speaker 05:
groups of maybe they're 10, maybe they're 100, maybe nobody thought about it, subdivisions.

[01:52:48] Speaker 04:
Well, this is exactly what I was getting at.

[01:52:50] Speaker 04:
The fact that the president took a different approach to agencies that operate under the FSLMRS and excluded them in certain circumstances, in certain instances at the agency level.

[01:53:00] Speaker 04:
And then with regard to the Department of State excluded at the subdivision level indicates that the president was considering the requirements of the statute, of the Foreign Service Act.

[01:53:11] Speaker 05:
We don't have to dwell on it, but that doesn't follow at all.

[01:53:13] Speaker 05:
The Foreign Service Act statute doesn't allow an agency-level exclusion.

[01:53:17] Speaker 05:
That's why you had to do it by subdivision.

[01:53:19] Speaker 05:
It doesn't prove anything that he was looking subdivision.

[01:53:22] Speaker 05:
He used the word subdivision.

[01:53:24] Speaker 04:
Well, I think that that goes back to the presumption of regularity, that the court has to presume that the president was acting consistent with the requirements of the statute.

[01:53:32] Speaker 04:
And in the absence of any other information, certainly there is no evidence here that the president was not considering subdivision by subdivision, at least at the level the president issued this exclusion order.

[01:53:44] Speaker 05:
So I wanted to let you get to the merits, but unfortunately I do have jurisdictional questions that I hope you can help with.

[01:53:52] Speaker 05:
You've argued that they could raise this in a pending ULP case.

[01:53:57] Speaker 05:
I want to ask, if they filed a new ULP case today, do you know what would happen?

[01:54:07] Speaker 05:
Would the FLRA just dismiss it for lack of jurisdiction?

[01:54:10] Speaker 05:
I don't know what would happen.

[01:54:12] Speaker 05:
Nobody knows what would happen.

[01:54:15] Speaker 04:
I can't say what the FLRA is going to say, just like I couldn't say what the district court would hold on any question.

[01:54:22] Speaker 04:
Even if the FLRA dismisses, even if the FLRA says, we can't even consider our jurisdiction, I think that would be incorrect.

[01:54:29] Speaker 04:
But even if the FLRA were to say that, this court certainly could consider the FLRA's jurisdiction on judicial review.

[01:54:34] Speaker 05:
Right.

[01:54:35] Speaker 05:
So then your best case for something like that would be something like Elgin, which says, even if the FLRA, in that case, was the MSPP, can't consider a constitutional claim, you still have to bring it there.

[01:54:47] Speaker 05:
Elgin was very careful to say.

[01:54:49] Speaker 05:
there will still be fact-finding because you are fundamentally, you're challenging, you're firing.

[01:54:56] Speaker 05:
And that's something the MSPB does.

[01:54:58] Speaker 05:
Here, the concern would be that what the Court of Appeals gets is an absolute nothing.

[01:55:05] Speaker 05:
It says, we don't have authority.

[01:55:07] Speaker 05:
We dismiss this for jurisdiction.

[01:55:09] Speaker 05:
There is no record like we have in our case that tells us the facts.

[01:55:13] Speaker 04:
So I don't think that, first of all, I don't think that fact-finding is really necessary here.

[01:55:18] Speaker 04:
Again, I think that

[01:55:20] Speaker 04:
The record could consist of these relevant documents.

[01:55:23] Speaker 05:
In fact, finding is important to resolve a case like this.

[01:55:27] Speaker 05:
That's a reason you agree the agency might not provide an appellate court that.

[01:55:32] Speaker 04:
I don't think so.

[01:55:33] Speaker 04:
So this court also addressed that issue in AFGE versus Trump.

[01:55:38] Speaker 04:
Their executive orders were at issue.

[01:55:39] Speaker 04:
The plaintiff said the FLRA doesn't have jurisdiction or doesn't have authority to invalidate the executive orders at issue.

[01:55:46] Speaker 04:
This court said, nonetheless, the district court lacks jurisdiction.

[01:55:50] Speaker 04:
Even if the FLRA doesn't have authority to review the executive orders at issue, we can on judicial review.

[01:55:57] Speaker 04:
And it did not carve out, it didn't say anything, I don't think, about the possibility of fact finding in FLRA.

[01:56:02] Speaker 05:
Okay.

[01:56:04] Speaker 05:
And then we've asked a lot of questions about 7111B and this language, a matter relating to representation.

[01:56:14] Speaker 05:
Do you know?

[01:56:15] Speaker 05:
It sounds like nobody has an answer to whether that allows you to file a freestanding petition of the type the government is arguing.

[01:56:26] Speaker 05:
Do you have a response on that issue?

[01:56:28] Speaker 04:
My understanding is that it does and that

[01:56:32] Speaker 04:
Any decision on a 7111 petition would be subject to judicial review.

[01:56:37] Speaker 04:
The statute 7123 precludes judicial review of decisions under 7121.

[01:56:42] Speaker 05:
One reason to be concerned about whether that's true is that if it was true, I would have imagined it would be the very first thing the government would say in its district court briefing.

[01:56:51] Speaker 05:
But you went through three, took a long time to think of 7111.

[01:56:55] Speaker 05:
It might raise concerns that it's as clear as you're suggesting.

[01:57:03] Speaker 04:
My understanding is that there is a possibility of such a petition.

[01:57:08] Speaker 04:
The union would seek clarification that it is the

[01:57:16] Speaker 04:
the representative of the bargaining unit, and the government would assert it's not because the agency is excluded under this executive order, and the FLRA would have to determine that, and then the FLRA's order would be subject to judicial review.

[01:57:32] Speaker 04:
My understanding is that the union could assert such a petition, the FLRA could adjudicate it, and it would be subject to judicial review.

[01:57:38] Speaker 03:
By determine that, you don't mean on the merits.

[01:57:42] Speaker 03:
It might just simply determine that it cannot address it.

[01:57:46] Speaker 04:
I think it probably could address the merits, but even if it doesn't, this court... That's a concern.

[01:57:51] Speaker 03:
If it doesn't address them, it just says, we can't consider this.

[01:57:55] Speaker 04:
Even if it said that and it dismissed the 7111 petition, this court or another court of appeals would have jurisdiction on judicial review of that dismissal order.

[01:58:06] Speaker 05:
Mr. Hearn also raised the question whether the FLRA would see itself related to this as having authority to question a presidential EO.

[01:58:14] Speaker 05:
And that seems to raise a question.

[01:58:16] Speaker 05:
I don't know if you have a position on it, but that would also be a distinction from Lloyd, right?

[01:58:21] Speaker 05:
Because that didn't involve a presidential determination.

[01:58:24] Speaker 04:
I don't think that an agency's understanding of its authority.

[01:58:29] Speaker 04:
Well, first of all, I do think that the court kind of addressed that in AFGE versus Trump, which I mentioned earlier.

[01:58:34] Speaker 04:
Whether or not the FLRA has jurisdiction or authority to question, to override the president's executive orders, the court held

[01:58:41] Speaker 04:
that the Court of Appeals does on judicial review, that's enough to require channeling.

[01:58:46] Speaker 04:
But regardless, whether or not independent agencies have changed their position on whether they're bound to follow an executive order, I don't think that reflects on Congress's intent in the CSRA, in the FSLMRS, which was to preclude judicial review of these questions and channel claims to the FLRA and then to the Court of Appeals on direct review of the FLRA's order.

[01:59:07] Speaker 05:
There's one interesting feature of

[01:59:10] Speaker 05:
and not intended to be a gotcha question, I think it's a difficult issue.

[01:59:15] Speaker 05:
The way you just described what the jurisdictional analysis is, is

[01:59:19] Speaker 05:
completely in conflict with what Loy says it is.

[01:59:22] Speaker 05:
It says the question is, is this issue arguably within the authority's jurisdiction to decide?

[01:59:28] Speaker 05:
And you said, that doesn't matter.

[01:59:30] Speaker 05:
And I agree that your version of it seems to crack more directly the way the Supreme Court has treated the question under thunder base.

[01:59:41] Speaker 05:
So I guess if there is a question there, it's whether how would you reconcile always test with what seems to be the general inquiry that we undertake in these kinds of cases?

[01:59:51] Speaker 04:
So I think that.

[01:59:55] Speaker 04:
I think that Lloyd was applying the thunder basin factors, and in particular, the first factor, which is the availability of judicial review as a clue to congressional intent.

[02:00:05] Speaker 04:
But ultimately, it is clear that what matters here is congressional intent, not whether there is necessarily or even arguably a method of obtaining judicial review through the statutory review scheme.

[02:00:16] Speaker 04:
And so even if it is absolutely clear on its face, as in Fausto, that Congress has precluded judicial review of a question,

[02:00:25] Speaker 04:
Nonetheless, the CSRA, FSL, and the RS can preclude district court jurisdiction of that question in the first instance.

[02:00:34] Speaker 03:
The court in Baker, although concerned reviewability at this point,

[02:00:39] Speaker 03:
Judge Ginsburg, Ruth Ginsburg said, the congressional intent behind these schemes, all of them labor schemes, is to avoid multiple litigation and multiple district courts with divergent opinions and forum shopping.

[02:00:58] Speaker 03:
And to centralize everything in these various authorities seems to me equally applicable to jurisdiction.

[02:01:08] Speaker 04:
Absolutely.

[02:01:09] Speaker 04:
The plaintiff unions, each local could raise this in a district court under plaintiff's theory.

[02:01:16] Speaker 03:
In different district courts.

[02:01:18] Speaker 04:
In different district courts, exactly.

[02:01:20] Speaker 04:
There's probably a local in every district, and you could have these suits in every district court, eventually making their way to the Court of Appeals.

[02:01:27] Speaker 04:
That's not what Congress wanted with the CSRA.

[02:01:28] Speaker 04:
It wanted to centralize review in the FLRA, and then in the Courts of Appeals, or in the case of the Foreign Service Act specifically, this Court of Appeals.

[02:01:36] Speaker 03:
And if there were appeals from borders of the FLRA, as there are, should they have to go to this Court of Appeals or can they go to any Court of Appeals?

[02:01:45] Speaker 04:
Under the FSL MRS, I believe, I'm sorry, if the FLRA appeals?

[02:01:51] Speaker 03:
No, no, if there's an appeal from an order of the FLRA, it can take any circuit in which the union can be found.

[02:01:57] Speaker 04:
If it arises under the FSLMRS, I believe it is any court of appeals.

[02:02:01] Speaker 04:
I'm not sure if it's any court of appeals where the union can be found, but it could arise in any court of appeals under the sub-chapter 10 of the Foreign Service Act, specifically the DC Circuit.

[02:02:13] Speaker 03:
Oh, so even in that instance, the Congress even more determines who avoid a multiplicity of views.

[02:02:21] Speaker 04:
That's right, but then it's...

[02:02:24] Speaker 04:
12 views, as opposed to however many district courts.

[02:02:28] Speaker 03:
You don't mean 12 views on this court.

[02:02:30] Speaker 04:
Not on this court.

[02:02:30] Speaker 04:
I mean, of the 12 regional courts of appeals.

[02:02:34] Speaker 04:
And I believe that that's the same under the MSPB orders.

[02:02:38] Speaker 04:
I believe they can be.

[02:02:39] Speaker 04:
I think that's right for MSPB.

[02:02:40] Speaker 04:
Appealed to any court of appeals, not only this one.

[02:02:44] Speaker 04:
Again, we ask that the court reverse the preliminary or vacate the preliminary injunctions below.

[02:02:49] Speaker 04:
Thank you.

[02:02:50] Speaker 08:
Thank you.

[02:02:50] Speaker 08:
Thank you to all counsel.