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IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF TEXAS
DALLAS DIVISION
CHRISTOPHER L. CRANE, DAVID A.
ENGLE, ANASTASIA MARIE
CARROLL, RICARDO DIAZ,
LORENZO GARZA, FELIX
LUCIANO, TRE REBSTOCK,
FERNANDO SILVA, SAMUEL
MARTIN, and JAMES D. DOEBLER
Plaintiffs,

)
)
)
)
)
)
)
)
)
Civil Action No. 3:12-cv-03247-O
v.
)
JANET NAPOLITANO, in her official )
capacity as Secretary of Homeland
)
Security, JOHN MORTON, in his
)
official capacity as Director of
)
Immigration and Customs Enforcement, )
and ALEJANDRO MAYORKAS, in his )
official capacity as Director of United
)
States Citizenship and Immigration
)
Services
)
Defendants.
)
______________________________________________________________________________
AMENDED SUPPLEMENTAL BRIEF IN SUPPORT OF PLAINTIFFS
APPLICATION FOR PRELIMINARY INJUNCTIVE RELIEF
______________________________________________________________________________

P. MICHAEL JUNG
Texas Bar No. 11054600

KRIS W. KOBACH
Kansas Bar No. 17280 (admitted pro hac vice)

Strasburger & Price, LLP

901 Main Street, Suite 4400
Dallas, Texas 75202
Telephone: 214-651-4300

Kobach Law, LLC

4701 N. 130th St.
Kansas City, Kansas 66109
Telephone: 913-638-5567
Attorneys for Plaintiffs

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TABLE OF CONTENTS

Table of Contents............................................................................................................................. i
Table of Authorities ....................................................................................................................... iii
Argument and Authorities............................................................................................................... 1
I.

THE CSRA EXPRESSLY EXCLUDES DISPUTES WHERE THE

ADVERSE EMPLOYMENT ACTION IS LESS THAN FOURTEEN
DAYS...................................................................................................................... 1

II.

THE COLLECTIVE BARGAINING AGREEMENT IS LIMITED

TO CONDITIONS OF EMPLOYMENT AND EXPRESSLY
EXCLUDES DISPUTES OVER THE AGENCY MISSION. .......................... 4
A.

The Agreement Limits Bargaining to Conditions of

Employment............................................................................................... 5

B.

The Agreement Expressly Excludes from Bargaining the

Agencys Mission and the Assignment of Work..................................... 7

III.

FEDERAL LAW PROHIBITS COLLECTIVE BARGAINING

THAT RESTRICTS THE AUTHORITY OF AGENCY
MANAGEMENT TO DETERMINE THE AGENCYS MISSION OR
TO ASSIGN WORK............................................................................................. 8

IV.

THE DEFENDANTS HAVE DEMONSTRATED THAT THEY DID

NOT REGARD THE MEMORANDUM AND DIRECTIVE TO BE
NEGOTIABLE.................................................................................................... 10
A.

The Defendants Have Treated the Substance of the Morton

Memorandum As Not Subject to Bargaining....................................... 10

B.

The Mere Fact that Plaintiff Crane Sent a Demand to

Bargain Letter Does Not Bring the Substance of the Morton
Memorandum Within the Terms of the CBA. ..................................... 12

C.

The Defendants Sent Additional Letters Reiterating Their

Position That the Substance of the Morton Memorandum Was
Not Subject to Bargaining. ..................................................................... 13

D.

The Defendants Have Treated the Substance of the Directive

As Not Subject to Bargaining................................................................. 15

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

SP-#4819122-v1-Crane_Amended_Supplemental_Brief_in_Support_of_Motion_for_Preliminary_Injunction.DOCX

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Certificate of Service .................................................................................................................... 17

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TABLE OF AUTHORITIES
Cases

AFGE Local 3511 and VA Hosp. San Antonio,

12 F.L.R.A. 76 (1983)......................................................................................................... 8
Bush v. Lucas,
462 U. S. 367 (1983)........................................................................................................... 2
Dept. of Air Force, Scott AFB and NAGE Local R7-23,
35 F.L.R.A. 844 (1990)..................................................................................................... 11
Elgin v. Department of the Treasury,
567 U.S. ___, 132 S. Ct. 2126 (2012)................................................................................. 1
Espenschied v. Merit Systems Protection Board,
804 F.2d 1233 (Fed. Cir. 1986), cert. denied, 481 U.S. 1017 (1987)................................. 5
Giles v. General Electric Co.,
245 F.3d 474 (5th Cir. 2001) ............................................................................................ 13
Manning v. Merit Systems Protection Board,
742 F.2d 1424 (Fed. Cir. 1984)........................................................................................... 3
Moore v. United Services Automobile Assn,
808 F.2d 1147 (5th Cir. 1987) .......................................................................................... 13
National Treasury Employees Union v. FLRA,
691 F.2d 553 (D.C. Cir. 1982) ............................................................................................ 9
Overseas Educ. Assn v. FLRA,
961 F.2d 36 (2d Cir. 1992).................................................................................................. 9
Perez v. Merit Systems Protection Board,
931 F.2d 853 (Fed. Cir. 1991)............................................................................................. 3
Rosano v. Department of the Navy,
699 F.2d 1315 (Fed. Cir. 1983)........................................................................................... 3
Schmittling v. Department of the Army,
219 F.3d 1332 (Fed. Cir. 2000)........................................................................................... 3
Thomas v. United States,
709 F.2d 48 (Fed. Cir. 1983)............................................................................................... 3

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United States Dept of Justice v. Federal Labor Rel. Auth.,

727 F.2d 481 (5th Cir. 1984) .............................................................................................. 9
United States Dept of Justice, INS v. Federal Labor Rel. Auth.,
995 F.2d 46 (5th Cir. 1993) ................................................................................................ 9
Verizon Md. Inc. v. Public Serv. Commn,
535 U.S. 635 (2002)............................................................................................................ 4
Whitman v. Department of Transportation,
547 U.S. 512 (2006)............................................................................................................ 4
Statutes

28 U.S.C. 1331................................................................................................................... 1, 4, 15
5 U.S.C. 706................................................................................................................................. 1
5 U.S.C. 7106......................................................................................................................... 9, 14
5 U.S.C. 7106(a) ........................................................................................................ 8, 12, 14, 15
5 U.S.C. 7106(a)(1)...................................................................................................................... 8
5 U.S.C. 7106(a)(2)(B) ................................................................................................................ 8
5 U.S.C. 7106(b (3).................................................................................................................... 11
5 U.S.C. 7106(b)(1) ..................................................................................................................... 9
5 U.S.C. 7106(b)(2) ................................................................................................................... 11
5 U.S.C. 7121............................................................................................................................... 4
5 U.S.C. 7121(a)(1)...................................................................................................................... 4
5 U.S.C. 7121(a)(2)...................................................................................................................... 4
5 U.S.C. 7511............................................................................................................................... 2
5 U.S.C. 7512..................................................................................................................... 1, 2, 15
8 U.S.C. 1225............................................................................................................................... 2
8 U.S.C. 1225(b)(2)(A).............................................................................................................. 12

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Legislative Materials

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

Administrative Materials

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

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ARGUMENT AND AUTHORITIES

On April 23, 2013, the Court ordered the parties to submit supplemental briefs addressing
the effect of the Collective Bargaining Agreement (CBA) and the Civil Service Reform Act
(CSRA) on the Courts jurisdiction to hear the case. As the following analysis explains, neither
the CBA nor the CSRA applies to the legal dispute in this case. Accordingly, jurisdiction lies in
this Court under 28 U.S.C. 1331, and review may occur pursuant to the Administrative Procedure Act (APA), 5 U.S.C. 706.
I.

THE CSRA EXPRESSLY EXCLUDES DISPUTES WHERE THE ADVERSE EMPLOYMENT ACTION IS LESS THAN FOURTEEN DAYS.
The defendants contend that the CSRA deprives this Court of jurisdiction to hear the

statutory and constitutional claims in this case. They claim that the CSRA established the exclusive administrative procedures for resolving grievances for federal employment disputes,
including matters covered by collective bargaining agreements. Def. Resp. 9. But the defendants have repeatedly neglected to address the fact that some disciplinary actions fall below the
threshold necessary to trigger the jurisdiction of the Merit Systems Protection Board (MSPB)
under the CSRA.
Covered actions defined by the CSRA, over which the MSPB has jurisdiction, are the
following enumerated adverse actions:
(1) a removal;
(2) a suspension for more than 14 days;
(3) a reduction in grade;
(4) a reduction in pay; and
(5) a furlough of 30 days or less.
5 U.S.C. 7512; see also 5 C.F.R. 1201.3(a)(1). CSRA review does not cover adverse employment actions that are not included in this listsuch as a suspension for only three days.
The Supreme Court discussed the scope of the CSRA at length in Elgin v. Department of

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the Treasury, 132 S. Ct. 2126 (2012), holding that the reviewable actions are plainly defined by
the list in 5 U.S.C. 7512. The reviewable agency actions are removal, suspension for more
than 14 days, reduction in grade or pay, or furlough for 30 days or less. 7512. 132 S. Ct. at
2130. The statute specifically enumerates the major adverse actions and employee classifications to which the CSRAs procedural protections apply. 5 U.S.C. 7511, 7512. Id. at 2133.
Accordingly, the Court concluded that the CSRAs jurisdiction is not based on amorphous distinctions such as ones focused on nature of an employees claim; rather it is based on the
clearly-demarcated lines established by the type of employee and the terms of the adverse action.
Id. at 2136. [T]he better interpretation of the CSRA is that its exclusivity does not turn on the
constitutional nature of an employees claim, but rather on the type of the employee and the challenged employment action. Id. In addition, the Supreme Court has specifically stated that suspensions for 14 days or less are not covered by the MSPB. Not all personnel actions are covered by this system. For example, there are no provisions for appeal of either suspensions for 14
days or less . Bush v. Lucas, 462 U.S. 367, 385 n.28 (1983) (emphasis supplied).
Plaintiff James Doebler a plaintiff specifically threatened with adverse employment action when he commenced removal proceedings pursuant to the requirements of 8 U.S.C. 1225
and against the orders of his supervisors was threatened with suspension for a non-appealable
term that lies outside the scope of the CSRA, specifically three days. See Doebler Affidavit. At
no point in this litigation have defendants stated an intention to impose a suspension of more
than fourteen days upon ICE officers who defy orders not to initiate removal proceedings. Nor
have the defendants offered any example of an ICE officer who was ever suspended for more
than fourteen days doing so. Thus, there is no evidence before this Court to suggest that the penalties imposed upon officers who follow 8 U.S.C. 1225 by commencing removal proceedings

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would fall within the scope of the CSRA.

Consistent with the clearly limited jurisdiction of the MSPB, the Federal Circuit has repeatedly declined to find jurisdiction where the adverse action in question is not among those
specified in the CSRA. If [the MSPB] lacks jurisdiction, the Board is without authority to decide the issues presented by a petitioner. The [Board] has only the jurisdiction conferred on it
by Congress. Schmittling v. Department of the Army, 219 F.3d 1332, 1337 (Fed. Cir. 2000)
(quoting Thomas v. United States, 709 F.2d 48, 49 (Fed. Cir. 1983)). Other litigants have attempted to invoke the jurisdiction of the MSPB by construing the adverse action taken against
them as suspensions of more than 14 days. But the Federal Circuit has been appropriately unwilling to expand the Boards jurisdiction beyond the express terms of the statute. See Perez v.
Merit Systems Protection Board, 931 F.2d 853, 855 (Fed. Cir. 1991) (We hold that in a situation
such this, where an employee has voluntarily absented himself from work, placement in a nonpay or AWOL status, even for longer than 14 days, is not a constructive suspension or other
agency action appealable to the MSPB). The Federal Circuit has been similarly unwilling to
construe other adverse actions as falling within the four corners of the CSRAs statement of
MSPB jurisdiction. See Manning v. Merit Systems Protection Board, 742 F.2d 1424, 1425-27
(Fed. Cir. 1984) (reassignment of employee was not an adverse action within the MSPBs jurisdiction); Rosano v. Department of the Navy, 699 F.2d 1315 (Fed. Cir. 1983) (refusal to prorate
employees health insurance premiums was not adverse action within MSPBs jurisdiction).
In these cases, as in the instant case, where an employee has been threatened with disciplinary action that is not subject to CSRA procedures, the employee may bring suit under the
APA for violating the substantive provisions of federal law. As the Supreme Court has made
clear, the CSRA does not divest Article III courts of jurisdiction over all federal statutory or con-

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stitutional claims by federal employees. If a case does not involve an adverse action that falls
within the clearly-defined boundaries of the CSRA, federal district courts retain their jurisdiction
that is conferred on them by 28 U.S.C. 1331:
Another statute, however a very familiar one grants jurisdiction to the federal
courts over all civil actions arising under the Constitution, laws, or treaties of the
United States. 28 U.S.C. 1331. The question, then, is not whether 5 U.S.C.
7121 confers jurisdiction [on the federal courts], but whether 7121 (or the
CSRA as a whole) removes the jurisdiction given to the federal courts.
Whitman v. Department of Transportation, 547 U.S. 512, 513-14 (2006) (citing Verizon Md. Inc.
v. Public Serv. Commn, 535 U.S. 635, 642 (2002)). In the instant case, there is no adverse action that brings this matter within the jurisdiction of the MSPB. 1 This Court therefore retains its
jurisdiction under 28 U.S.C. 1331.
II.

THE COLLECTIVE BARGAINING AGREEMENT IS LIMITED TO

CONDITIONS OF EMPLOYMENT AND EXPRESSLY EXCLUDES DISPUTES OVER THE AGENCY MISSION.
The CSRA allows for some disputes to be handled through negotiated grievance proce-

dures that may be laid out in a collective bargaining agreement, rather than through appeal to the
MSPB. 5 U.S.C. 7121; see also 5 C.F.R. 1201.3(c)(1). However, the CSRA plainly states
that for a collective bargaining agreement to apply, the grievance must fall within [the agreements] coverage. 5 U.S.C. 7121(a)(1). An agreement may also exclude any matter from
the application of the grievance procedures which are provided for in the agreement. 5 U.S.C.
7121(a)(2). In general, if an employee is covered by a collective bargaining agreement, matters that customarily would be within the boards jurisdiction are deemed to be covered by the

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

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negotiated grievance procedure and thus beyond the boards jurisdiction, unless the collective
bargaining agreement specifically excludes a matter from application of the grievance procedure. Espenschied v. Merit Systems Protection Board, 804 F.2d 1233, 1236 (Fed. Cir. 1986),
cert. denied, 481 U.S. 1017 (1987) (emphasis supplied).
In the instant case, the ICE officers CBA plainly and unequivocally excludes the subject
matter of this litigation. The negotiable matters are limited to personnel matters and conditions
of employment, such as safety conditions, hours per shift, and equipment provided for the comfort or security of officers. Non-negotiable matters include (1) the mission of the agency, and (2)
the assignment of work both of which include orders to place, or not to place, aliens into removal proceedings. As demonstrated below, the CBA is unequivocal on these points.
A.

The Agreement Limits Bargaining to Conditions of Employment.

The CBA repeatedly makes clear that the bargaining and grievance procedures described
therein are limited to specific conditions of employment. This limiting factor appears repeatedly
throughout the CBA:

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

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

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

(1)
(2)
(3)

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

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The union may only respond to management on official time as follows:

Respond to Management. Review of and response to memoranda, letters, and requests from the Employer, as well as proposed new instructions, manuals, notices, etc., which affect personnel policies, practices or
working conditions. Art. 7.A.(7) (Doc 34-7, p. 16) (emphasis supplied).

Post-implementation bargaining over emergency changes is limited in the

same fashion, when there is a need for expedited implementation of new
policies or practices affecting conditions of employment. Art. 9.F. (Doc
34-7, p. 28) (emphasis supplied).

The unions right to be represented is similarly limited: The Union shall

be given the opportunity to be represented at any formal discussion between one or more representatives of the Service and one or more employees in the unit or their representatives concerning any grievance or any
personnel policy or practices or other general conditions of employment.
Art. 30.A. (Doc. 34-7, p. 64) (emphasis supplied).

Bargaining involving equal employment opportunity programs is similarly

limited: Bargaining Obligations. Where the development and implementation of the Employers Equal Employment Opportunity Plans and
Programs involve changes in personnel policies, practices, or working
conditions, the Employer will fulfill its bargaining obligations with the
Union under Chapter 71 Labor-Management Relationsof Title 5,
United States Code. Art. 44.B. (Doc. 34-7, p. 87) (emphasis supplied).

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

( footnote continued from previous page)

(4)
(5)
(6)
(7)
(8)
(9)
(10)
(11)

Obstruct Competition.
Influence any person to withdraw from competition.
Grant any advantage not authorized by law, rule, or regulation to any employee.
Appoint any person who is a relative.
Whistleblower Reprisal [for] a disclosure of information.
Appeal Reprisal for the exercise of any appeal right granted by any law, rule, or regulation.
Outside Conduct ... [used to] [d]iscriminate for or against any employee.
Violation of Merit System Principles.

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

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phasis supplied).

The opportunity to bargain regarding equal employment opportunity plans

is similarly limited: Opportunity to Bargain. If implementation of the
Employers Equal Employment Opportunity Plans involves changes in
personnel policies, practices, or matters affecting working conditions, the
Union will be given reasonable opportunity to exercise its bargaining
rights pursuant to Chapter 71 of Title 5, United States Code prior to implementation. Art. 44.J. (Doc. 34-7, p. 91) (emphasis supplied).

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

Grievances involving violations of law may only be pursued if they affect

the same conditions: Violation of Law, Rule, or Regulation. Any
claimed violation, misinterpretation, or misapplication of any law, rule, or
regulation affecting conditions of employment. Art. 47.B.(2) (Doc. 34-7,
p. 96) (emphasis supplied).

In summary, the CBA repeatedly and emphatically limits the right of the union to bargain to
conditions of employment. The substance of the policy changes in the Morton Memorandum
and the Directive cannot reasonably be described as a change to these conditions.
B.

The Agreement Expressly Excludes from Bargaining the Agencys

Mission and the Assignment of Work.

Consistent with the agreements limitation of negotiable issues to employment conditions

and personnel matters, the CBA excludes topics that fall outside of these areas. Most importantly, the CBA makes clear that disputes concerning the agencys mission and the work that is
assigned to officers cannot be the subject of collective bargaining:

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

Nothing in this contract shall affect the authority of any Service official
to assign work . Art. 4.B.(1) (Doc. 34-7, p. 11) (emphasis supplied).
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This is an unequivocal, express exclusion from collective bargaining of the assignment of tasks
to immigration officers and the mission of the agency. Consequently, it is impossible for the
plaintiffs to collectively bargain whether or not they may place certain aliens into removal proceedings or whether or not they must follow the Morton Memorandum and the Directive.
III.

FEDERAL LAW PROHIBITS COLLECTIVE BARGAINING THAT RESTRICTS THE AUTHORITY OF AGENCY MANAGEMENT TO DETERMINE THE AGENCYS MISSION OR TO ASSIGN WORK.
Even if the CBA at issue in this case did not expressly exclude from bargaining the au-

thority of agency management to determine the agency mission or to assign work, it would not
matter, because federal law clearly prohibits any collective bargaining on these subjects:
(a) Subject to subsection (b) of this section, nothing in this chapter shall affect the
authority of any management official of any agency
(1) to determine the mission, budget, organization, number of employees, and
internal security practices of the agency; and
(2) in accordance with applicable laws
(A) to hire, assign, direct, layoff, and retain employees in the agency, or to
suspend, remove, reduce in grade or pay, or take other disciplinary action
against such employees;
(B) to assign work, to make determinations with respect to contracting out,
and to determine the personnel by which agency operations shall be conducted;
5 U.S.C. 7106(a) (emphasis supplied). The policies that DHS adopts regarding under what circumstances aliens may be placed into removal proceedings fall within the agencys nonnegotiable authority to assign work under 5 U.S.C. 7106(a)(2)(B). See AFGE Local 3511 and VA
Hosp. San Antonio, 12 F.L.R.A. 76, 81 (1983) (proposals that directly interfere with the
Agencys right to determine what duties must be performed are not subject to bargaining).
Such policies also involve the agencys authority to determine [its] mission under 5 U.S.C.
7106(a)(1). See AFGE Natl Border Patrol Council, 51 F.L.R.A. 1308, 1325 (1996) (The
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mission of the Agency includes the enforcement of laws concerning illegal immigration.).
Article III courts have consistently recognized the importance and the breadth of these
nonnegotiable areas. Without a doubt, the right to determine what work will be done and by
whom and when it is to be done, is at the very core of successful management of the employers
business, whether a private sector enterprise or the public service operations of a federal
agency. National Treasury Employees Union v. FLRA, 691 F.2d 553, 563 (D.C. Cir. 1982)
(emphasis supplied); see Overseas Educ. Assn v. FLRA, 961 F.2d 36, 39 (2d Cir. 1992) (referring to the wide net of subsection (a)s management prerogatives). The Fifth Circuit has
pointed to the legislative history of 5 U.S.C. 7106, noting that under no circumstances are general agency polices to be subject to collective bargaining: By inclusion of this [7106(b)(1) 3 ]
language, however, it is not intended that agencies will discuss general policy questions determining how an agency does its work. United States Dept of Justice v. Federal Labor Rel.
Auth., 727 F.2d 481, 487 (5th Cir. 1984) (quoting H. Rep. No. 95-969, 95th Cong., 2d. Sess.
(1978), at 154) (brackets in original). The Fifth Circuit has accordingly defined the assignment
of work broadly: The right to assign work necessarily encompasses the right to determine
when it will be performed. Id. at 488 (citing National Treasury Employees Union, 691 F.2d at
562); see also United States Dept of Justice, INS v. Federal Labor Rel. Auth., 995 F.2d 46, 48
(5th Cir. 1993). Operational decisions such as directing the INS to establish highway checkpoints at night are nonnegotiable. 727 F. 2d at 488. So too is the operational decision regarding
which illegal aliens will be placed into removal proceedings.

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

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IV.

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THE DEFENDANTS HAVE DEMONSTRATED THAT THEY DID NOT

REGARD THE MEMORANDUM AND DIRECTIVE TO BE NEGOTIABLE.
A.

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

Outside of this litigation, the defendants and their agency representatives have consistently regarded the substance of the Morton Memorandum as involving excluded subject matter
that is not negotiable under the CBA. At the time the policy was announced, the defendants did
not regard its substance to be subject to collective bargaining. This is evident because the defendants did not serve a notice of a proposed change on Plaintiff Christopher Crane regarding the
substance of the policy. According to Article 9 of the CBA, which governs the procedure for
bargaining, the agency must serve a formal notice of a proposed change whenever it makes a national policy change that is subject to bargaining. Art. 9.B.(1)(a) (Doc. 34-7, p. 24). Specifically, proposed changes to existing Service regulations covering personnel policies, practices,
and/or working conditions must be initiated with a notice of proposed change. Art. 9.A. (Doc.
34-7, p. 24) (emphasis supplied). The defendants have always taken the position that their obligation to send a Section 9.A. notice is coextensive with their obligation to bargain upon request.
Therefore, if the agency does not send a Section 9.A. notice regarding a particular matter, then
the agency does not regard the matter as subject to bargaining. 4
Understanding that the subject matter of removals within the Morton Memorandum is
expressly excluded by the CBA, and determining no effect upon working conditions, the defen-

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

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dants did not send a Section 9.A notice of a proposed change regarding the policys substance.
Instead, on December 8, 2011, Enforcement and Removal Operations Executive Director Gary
Mead sent a notice of proposed change only regarding any training that personnel might have to
undertake to implement the Morton Memorandum. In that notice, Mead specifically stated that
the policy itself was not subject to collective bargaining because it did not directly affect conditions of employment:
While we believe this [Morton] memorandum does not directly affect conditions
of employment of ERO bargaining unit employees, it is foreseeable that aliens, attorneys, and Non-Governmental Organizations will ask questions of ERO employees concerning its contents. [T]his training will provide ERO employees
with the information they need to respond to questions in a manner consistent
with Department of Homeland Security (DHS) and ICE priorities, should they encounter them.
Mead Letter of Dec. 8, 2011, attached as Exhibit A (emphasis supplied). The Mead Letter went
on to explain that the substance of the Morton Memorandum was non-negotiable under the collective bargaining agreement, and suggested that the training might also be non-negotiable:
The Agency maintains that the implementation of the [Morton] Memorandum
through mandatory training represents an exercise of managements rights to assign work and determine the methods and means of performing work. However
management serves this National 9(A) notice for the purpose of fulfilling its bargaining obligation with regard to the impact and implementation of the initiative.
Id. (emphasis supplied). 5 The letter then instructed Plaintiff Crane to serve any demand to bargain that the union wished to serve, pursuant to the collective bargaining agreement. Id.

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

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B.

Page 18 of 23 PageID 1144

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

Shortly after receiving the Mead Letter, Plaintiff Crane responded on January 24, 2012,
with a demand to bargain over the Morton Memorandums impact and implementation concerning working conditions. He also realized that the Morton Memorandum would likely place
ICE officers in an impossible position: it was foreseeable that they would be required to choose
between violating federal law and disobeying the orders of their supervisors. Plaintiff Crane
therefore followed a natural course for a union officer seeking to protect union members who
wished to follow federal law and commence removal proceedings when required to do so by
8 U.S.C. 1225(b)(2)(A). He included among the numerous proposals in the demand-to-bargain
letter a proposal that: No employee will be subject to disciplinary or adverse action for refusing
to obey an unlawful order. Crane Letter of Jan. 25, 2012, attached as Exhibit B. He did not attempt to bargain the substance of the Morton Memorandum; rather, he attempted to bargain
whether or not ICE officers would be punished if they disobeyed it. The fact that the letter was
sent, and that it included this proposal, was stated in the Amended Complaint. Am. Complt.
53. On April 5, 2012, Plaintiff Crane submitted Additional Proposals and an Information Request, attached as Exhibit C. That too is in the Amended Complaint. Am. Complt. 54.
The attempt to protect the ICE officers from suspension in this instance was in vain, because federal law prohibits bargaining that restrict the authority of any management official of
any agency to suspend, remove, reduce in grade or pay, or take other disciplinary action
against such employees. 5 U.S.C. 7106(a); see Section III, supra. Even if the agency had
been willing to negotiate whether or not adverse employment actions would be taken against
agents who initiated removal proceedings in defiance of the Morton Memorandum, federal law

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rendered this issue nonnegotiable. 6

The fact that a plaintiff pursued a collective bargaining remedy that is prohibited by federal law does not bar the plaintiffs from demonstrating in this Court, as they have done above,
that no collective bargaining remedy is available. A party is precluded from asserting a position
inconsistent with that asserted in prior proceedings only if, inter alia, the tribunal accepted the
partys prior position. E.g., Giles v. General Electric Co., 245 F.3d 474, 483 (5th Cir. 2001)
(ADA plaintiff, who claimed to be qualified individual, not estopped by statements on SSDI application that he was disabled, where no SSDI benefits were awarded); Moore v. United Services
Automobile Assn, 808 F.2d 1147, 1153 n.6 (5th Cir. 1987).
C.

The Defendants Sent Additional Letters Reiterating Their Position

That the Substance of the Morton Memorandum Was Not Subject to
Bargaining.

On October 1, 2012, the defendants through their representative Michael Ellis responded
to Plaintiff Cranes demand-to-bargain letter. In their response (which occurred well after the
commencement of this litigation) the defendants emphatically declared that the substance of the
Morton Memorandum was not subject to collective bargaining. Ellis Letter of Oct. 1, 2012, attached as Exhibit D. The defendants stated that the substance of the Morton Memorandum, inter
alia, was nonnegotiable for several reasons, three of which are relevant here. Id. First, they
stated that [t]he Unions proposal is beyond the scope of the Agencys duty to bargain. Id.
(emphasis supplied). Second, they stated that [m]anagements intended change represents either no, or no more than de minimis, changes to conditions of employment for BUEs. Id.

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

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Third, the defendants stated that [t]he Unions proposal is nonnegotiable since it excessively
interferes with managements rights under 5 U.S.C. 7106 (right to assign work, right to direct
employees, right to discipline, etc. ). The defendants were unequivocal in their position that
the substance of the Morton Memorandum was not subject to bargaining.
The defendants also declared that they had no duty to bargain at all. However they would
accept one Union proposal regarding training; that is, they would avoid interruptions and relieve
the bargaining unit employees of other job demands while he or she is attending training. Ellis
Letter of Oct. 1, 2012. Ellis firmly stated that the Union has presented no impact and implementation proposals over which the Agency has a duty to bargain. [T]he Agency does not
believe that the Unions proposals raise any negotiable issues. Id. (emphasis supplied).
In a second letter, dated December 13, 2012, Mr. Ellis reiterated that the substance of the
Morton Memorandum was not subject to negotiation: The Article 9(A) notice sent to the Union
on December 22, 2011, was specifically in reference to the provision of mandatory training to
bargaining unit employees concerning the June 17, 2011, memorandum and not with regard to
the memorandum itself. Therefore, the only relevant issues in question related to any possible
bargaining were impact and implementation matters concerning the provision of the mandatory
training. Ellis Letter of December 13, 2012, attached as Exhibit E (emphasis supplied).
Nevertheless, looking for some way to argue that this Court lacks jurisdiction to adjudicate this case, counsel for the defendants, in a footnote, took a position exactly the opposite of
that stated in the two Ellis letters during the same time period. See Defendants Motion to Dismiss and Memorandum in Support, 11 n.3 (Nov. 13, 2012). Now they attempt to advance the
untenable argument that the substance of the Morton Memorandum, itself, is subject to collective
bargaining. As explained at length above, 5 U.S.C. 7106(a) and the text of the collective bar-

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gaining agreement clearly state that the mission of the agency and the assignment of work cannot
be negotiated. Their argument is unsustainable as a matter of law, and remarkable in that it so
clearly contradicts their clients position.
D.

The Defendants Have Treated the Substance of the Directive As Not

Subject to Bargaining.

Finally, it is important to note that the defendants did not regard the Directive to be subject to bargaining in any respect. Whereas with the Morton Memorandum their Section 9.A. notice stated that the substance of the policy was nonnegotiable, but conceded that some training
might be negotiable, see Section IV.A, supra, with the Directive the defendants declined to send
any notice of proposed change at all. The defendants have consistently taken the position that
they are under no obligation to send a Section 9.A. notice if the policy in question is not subject
to bargaining. See note 4, supra. They thereby evidenced their correct understanding that the
substance of the Directive is not subject to collective bargaining under the CBA.
CONCLUSION
In summary, defense counsel face two insurmountable statutory hurdles in their attempt
to argue that this Courts jurisdiction is supplanted by the MSPBs jurisdiction or by the CBA. 5
U.S.C. 7512 makes clear that the MSPB lacks jurisdiction over this case. And 5 U.S.C.
7106(a) makes clear that this case cannot be subject to collective bargaining. Consequently,
jurisdiction lies in this Court pursuant to 28 U.S.C. 1331. The plaintiffs therefore respectfully
request that this court issue preliminary injunctive relief to prevent the harm that the ICE officers
and the public would otherwise face due to the operation of the unlawful Directive and Morton
Memorandum during the pendency of this litigation. With each passing week, more illegal
aliens arrested for crimes are being released by ICE, and thousands of additional illegal aliens are
being induced to rely on the unlawfully-conferred benefit of deferred action.
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Respectfully submitted,

/s Kris W. Kobach
P. MICHAEL JUNG
Texas Bar No. 11054600

KRIS W. KOBACH
Kansas Bar No. 17280 (admitted pro hac vice)

Strasburger & Price, LLP

901 Main Street, Suite 4400
Dallas, Texas 75202
Telephone: 214-651-4300

Kobach Law, LLC

4701 N. 130th St.
Kansas City, Kansas 66109
Telephone: 913-638-5567
Attorneys for Plaintiffs

DATED: May 7, 2013

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CERTIFICATE OF SERVICE
I hereby certify that this Amended Supplemental Brief in Support of Plaintiffs Application for Preliminary Injunctive Relief has been served on the defendants by electronic service
through the Courts ECF system to Adam Kirschner, Esq., and Bradley H. Cohen, Esq., Attorneys for Defendants, at Adam.Kirschner@usdoj.gov and Bradley.Cohen@usdoj.gov, on this 7th
day of May, 2013.

/s Kris W. Kobach
KRIS W. KOBACH

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