National Railroad Passenger Corporation v. Fraternal Order of Police, Lodge 189 , 142 F. Supp. 3d 82 ( 2015 )

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