WEBVTT 00:00:00.000 --> 00:00:02.839 Terrific. Well, we have argument today in this 00:00:02.839 --> 00:00:05.679 matter. You'll see on the clock, we put 30 minutes 00:00:05.679 --> 00:00:08.380 per side. We want to give each side plenty of 00:00:08.380 --> 00:00:09.880 time to make their points. But I'm going to say 00:00:09.880 --> 00:00:13.400 what I always say when I preside. There is no 00:00:13.400 --> 00:00:17.460 extra credit or bonus points for using every 00:00:17.460 --> 00:00:20.120 second on the clock in the Ninth Circuit. So 00:00:20.120 --> 00:00:23.260 if you have made your points and you're not getting 00:00:23.260 --> 00:00:26.339 any questions back, there's nothing wrong with 00:00:26.919 --> 00:00:29.059 I guess sitting down or whatever we do on these 00:00:29.059 --> 00:00:31.199 virtual things. It's okay to be done, is what 00:00:31.199 --> 00:00:33.020 I'm saying. There's nothing wrong with that. 00:00:33.020 --> 00:00:35.780 And I think 30 minutes is ample time for this 00:00:35.780 --> 00:00:39.060 matter. And with that, I believe Mr. Becker, 00:00:39.079 --> 00:00:42.219 are we hearing from you first? Yes, your honor. 00:00:42.679 --> 00:00:45.659 All right, you may proceed when ready. Good morning, 00:00:45.780 --> 00:00:47.920 your honors, and may it please the court. Tyler 00:00:47.920 --> 00:00:49.960 Becker from the Department of Justice on behalf 00:00:49.960 --> 00:00:52.119 of all appellants. I would like to reserve five 00:00:52.119 --> 00:00:55.880 minutes for rebut. Very well. When Congress enacted 00:00:55.880 --> 00:00:58.960 the FSL MRS authorizing collective bargaining 00:00:58.960 --> 00:01:02.100 by federal employees, it recognized that national 00:01:02.100 --> 00:01:04.599 security may require agencies to be excluded 00:01:04.599 --> 00:01:07.780 from the statute's requirements. Thus, in section 00:01:07.780 --> 00:01:11.439 7103, B1, Congress explicitly authorized the 00:01:11.439 --> 00:01:14.260 president to exclude agencies and subdivisions 00:01:14.260 --> 00:01:16.780 if the president determines that national security 00:01:16.780 --> 00:01:20.439 so requires. Pursuant to this authority, President 00:01:20.439 --> 00:01:24.260 Trump adopted Executive Order 14251, and excluded 00:01:24.260 --> 00:01:26.760 agencies including the State Department, Department 00:01:26.760 --> 00:01:29.379 of Defense, and Immigrations and Customs Enforcement 00:01:29.379 --> 00:01:32.620 from bargaining. The district court below preliminary 00:01:32.620 --> 00:01:35.140 enjoined the executive orders enforcement despite 00:01:35.140 --> 00:01:37.879 the president's facially legitimate order adopted 00:01:37.879 --> 00:01:40.659 pursuant to clear statutory authority in the 00:01:40.659 --> 00:01:43.359 national security context, a context where courts 00:01:43.359 --> 00:01:45.879 are supposed to give great deference to presidential 00:01:45.879 --> 00:01:48.909 determinations. The district court did so after 00:01:48.909 --> 00:01:51.090 finding plaintiffs had raised only a serious 00:01:51.090 --> 00:01:53.469 question on the merits that the order was adopted 00:01:53.469 --> 00:01:56.290 in retaliation for federal unions First Amendment 00:01:56.290 --> 00:01:58.790 activities. Yet the district court failed to 00:01:58.790 --> 00:02:01.010 address a key element of First Amendment retaliation 00:02:01.010 --> 00:02:03.530 claims, an error that even plaintiffs do not 00:02:03.530 --> 00:02:05.810 defend. And the district court should not have 00:02:05.810 --> 00:02:09.370 exercised jurisdiction at all given the FSL MRS's 00:02:09.370 --> 00:02:12.069 comprehensive scheme for labor disputes that 00:02:12.069 --> 00:02:14.289 requires bringing claims like plaintiffs in the 00:02:14.289 --> 00:02:17.340 FLRA with review in a court of appeals, not a 00:02:17.340 --> 00:02:19.539 district court. Can I ask you, on the jurisdictional 00:02:19.539 --> 00:02:22.500 issue, was that same issue raised in the D .C. 00:02:22.840 --> 00:02:25.620 Circuit that had two somewhat similar cases as 00:02:25.620 --> 00:02:28.180 this one? I guess, Your Honor, it is the same 00:02:28.180 --> 00:02:31.240 issue. Okay. And did the D .C. Circuit, doesn't 00:02:31.240 --> 00:02:34.039 seem, they addressed that then? They just, that 00:02:34.039 --> 00:02:36.620 court concluded essentially that it had jurisdiction? 00:02:37.580 --> 00:02:39.919 No, the D .C. Circuit did not address the issue. 00:02:40.060 --> 00:02:42.960 I think that in this context where you're trying 00:02:42.960 --> 00:02:45.280 to determine likelihood of success on the merits, 00:02:46.039 --> 00:02:48.139 the DC Circuit may have thought and we think 00:02:48.139 --> 00:02:52.580 is appropriate, if so inclined, that you can 00:02:52.580 --> 00:02:55.560 just consider whether plaintiffs are likely to 00:02:55.560 --> 00:02:57.280 succeed on the merits or plaintiffs are likely 00:02:57.280 --> 00:03:00.680 to succeed or not on their jurisdictional claim. 00:03:01.080 --> 00:03:05.620 So we're okay with not addressing if you would 00:03:05.620 --> 00:03:09.039 prefer not to, but I think you have discretion 00:03:09.039 --> 00:03:11.719 to do either. Well, yeah, I mean, usually when 00:03:11.719 --> 00:03:13.900 something is jurisdictional, we don't have discretion 00:03:13.900 --> 00:03:16.780 to avoid that. We have to decide whether we have 00:03:16.780 --> 00:03:20.060 jurisdiction. But it just seemed interesting 00:03:20.060 --> 00:03:22.740 to me that the DC circuit, I guess, did not address 00:03:22.740 --> 00:03:25.819 that. Yeah, Your Honor, the government agrees 00:03:25.819 --> 00:03:28.560 that it is an interesting question, and I know 00:03:28.560 --> 00:03:30.500 there's not a Supreme Court precedent clearly 00:03:30.500 --> 00:03:33.039 on point in this. You know, you're thinking more 00:03:33.039 --> 00:03:34.840 about Steele Co., and usually you would have 00:03:34.840 --> 00:03:37.500 to address jurisdiction. But we think, especially 00:03:37.500 --> 00:03:41.199 in the state posture, we think you can address 00:03:41.199 --> 00:03:43.680 either the merits or jurisdiction. And either 00:03:43.680 --> 00:03:47.539 way, we don't think plaintiffs are likely to 00:03:47.539 --> 00:03:49.439 succeed here, and the government is likely to 00:03:49.439 --> 00:03:51.780 succeed on getting the district court's preliminary 00:03:51.780 --> 00:03:54.539 injunction stayed. OK. Can I ask then on the 00:03:54.539 --> 00:03:59.000 statute, would it be the government's position 00:03:59.000 --> 00:04:01.439 that once the president makes this determination, 00:04:02.639 --> 00:04:06.719 as he has here, there essentially could not be 00:04:06.719 --> 00:04:09.000 a retaliation claim? Do you believe there could 00:04:09.000 --> 00:04:11.599 be in the face of the president making the determination 00:04:11.599 --> 00:04:15.860 that the statute gives to him? Your Honor, the 00:04:15.860 --> 00:04:19.680 government does not believe that the retaliation 00:04:19.680 --> 00:04:23.870 claim would succeed here. It's very different. 00:04:24.709 --> 00:04:28.329 We think that plaintiffs could have a retaliation 00:04:28.329 --> 00:04:30.930 claim in this context, but it just doesn't exist 00:04:30.930 --> 00:04:33.209 here. We think this is governed by the Trump 00:04:33.209 --> 00:04:37.930 versus Hawaii case. And in that case, you have 00:04:37.930 --> 00:04:42.639 a situation where there may be one reason. that 00:04:42.639 --> 00:04:46.079 the policy was adopted perhaps for one reason 00:04:46.079 --> 00:04:50.240 that involved animus, but had other reasons as 00:04:50.240 --> 00:04:52.480 well, other facially legitimate reasons. And 00:04:52.480 --> 00:04:55.720 we think in that context, it's the same like 00:04:55.720 --> 00:05:00.779 this context that there would not be a retaliation 00:05:00.779 --> 00:05:02.660 claim or retaliation claim would not succeed. 00:05:02.980 --> 00:05:05.279 Now, could you bring one if there was direct 00:05:05.279 --> 00:05:08.790 evidence of animus? I think Trump versus Hawaii 00:05:08.790 --> 00:05:12.230 leaves that open, but it would be a very limited 00:05:12.230 --> 00:05:14.050 type of judicial review in the national security 00:05:14.050 --> 00:05:22.430 context. If I could just jump in, I want to follow 00:05:22.430 --> 00:05:24.870 up on Judge Bress' questions about the DC Circuit. 00:05:24.970 --> 00:05:28.329 The DC Circuit focused on the injury issue. And 00:05:28.329 --> 00:05:31.310 I was wondering if you could just update us kind 00:05:31.310 --> 00:05:34.600 of where we are in this case in terms of Are 00:05:34.600 --> 00:05:36.720 the CBAs, have they been rescinded? Are they 00:05:36.720 --> 00:05:39.240 still in effect? Because I know there was some, 00:05:39.319 --> 00:05:42.000 at least confusion on my part, about whether 00:05:42.000 --> 00:05:44.819 anything had actually happened to rescind these 00:05:44.819 --> 00:05:47.279 CBAs or to cancel them. Or are they actually 00:05:47.279 --> 00:05:49.220 still in place? Or are some of them being canceled? 00:05:49.399 --> 00:05:53.209 Where are we? Your Honor, the only agency that 00:05:53.209 --> 00:05:58.629 has canceled CBAs at this point is the State 00:05:58.629 --> 00:06:01.970 Department. They canceled them before the OPM 00:06:01.970 --> 00:06:05.790 guidance was issued on April 7th, directing agencies 00:06:05.790 --> 00:06:09.189 to not cancel CBAs as litigation proceeded. There 00:06:09.189 --> 00:06:11.810 was an issue in district court. It was a record 00:06:11.810 --> 00:06:15.730 issue about one division of one agency that had 00:06:15.730 --> 00:06:18.449 canceled a CBA before that OPM guidance issued, 00:06:18.470 --> 00:06:20.990 but then they... um put the cba back in place 00:06:20.990 --> 00:06:23.790 and it remains in place today and no other agencies 00:06:23.790 --> 00:06:26.870 have have canceled cbas thank you well doesn't 00:06:26.870 --> 00:06:31.629 that put you in a um and sort of an interesting 00:06:31.629 --> 00:06:35.949 position that if you argue that uh the injunction 00:06:35.949 --> 00:06:38.769 causes the government irreparable harm but at 00:06:38.769 --> 00:06:41.870 the same time argue that it doesn't cause the 00:06:41.870 --> 00:06:43.829 plaintiff's irreparable harm because the cbas 00:06:43.829 --> 00:06:46.879 have not been canceled and it seems that everything 00:06:46.879 --> 00:06:50.579 status quo. So, how is the government harmed? 00:06:51.920 --> 00:06:54.399 Well, Your Honor, the CBAs have not been canceled, 00:06:54.500 --> 00:06:57.519 however, besides from the State Department. However, 00:06:57.879 --> 00:07:00.379 the government does not want to have to comply 00:07:00.379 --> 00:07:03.879 with every provision of the CBA while the CBAs, 00:07:03.899 --> 00:07:06.680 while this litigation proceeds. The government 00:07:06.680 --> 00:07:09.160 would like to be able to, for example, in the 00:07:09.160 --> 00:07:12.889 case of In the case of ICE, there's been an issue 00:07:12.889 --> 00:07:17.629 where ICE would like to be able to have 24 -hour 00:07:17.629 --> 00:07:22.050 legal support to agents on the ground, and they 00:07:22.050 --> 00:07:23.649 would have to go through midterm bargaining to 00:07:23.649 --> 00:07:26.069 be able to do that. Now, ICE has also said they 00:07:26.069 --> 00:07:27.949 don't really think that is covered by the CBA, 00:07:28.129 --> 00:07:31.490 et cetera, but the government has many things 00:07:31.490 --> 00:07:33.569 that it would like to be able to do that it was 00:07:33.569 --> 00:07:38.750 not able to do with this. with the preliminary 00:07:38.750 --> 00:07:43.410 injunction in place. So another issue with determining 00:07:43.410 --> 00:07:45.910 whether there's a reparable harm is that you 00:07:45.910 --> 00:07:48.610 didn't submit any declarations to the district 00:07:48.610 --> 00:07:50.970 court. And there are many, there are several 00:07:50.970 --> 00:07:54.250 that are attached with your motion here, but 00:07:54.250 --> 00:07:58.470 can we consider those in the context of the Nikin 00:07:58.470 --> 00:08:01.720 factors? Your honor, we think that you can. We 00:08:01.720 --> 00:08:03.519 did submit those declarations to the district 00:08:03.519 --> 00:08:06.500 court when we moved for a stay to describe what 00:08:06.500 --> 00:08:08.680 harm was actually being caused by the district 00:08:08.680 --> 00:08:10.819 court's preliminary injunction. I mean, we submitted 00:08:10.819 --> 00:08:14.839 those same declarations here. Additionally, We 00:08:14.839 --> 00:08:17.019 don't even know that you need to go there because 00:08:17.019 --> 00:08:21.259 the district court's order clearly causes irreparable 00:08:21.259 --> 00:08:23.740 harm to the government, to the president's ability 00:08:23.740 --> 00:08:27.379 to make a national determination, a statutorily 00:08:27.379 --> 00:08:30.779 authorized determination in the national security 00:08:30.779 --> 00:08:35.539 context. This is like a Youngstown. This is in 00:08:35.539 --> 00:08:37.620 Youngstown, the kind of highest level of authority 00:08:37.620 --> 00:08:39.679 the president has, where Congress has specifically 00:08:39.679 --> 00:08:42.240 authorized such a determination, and the president 00:08:42.240 --> 00:08:46.480 has made it. So we think the president, there's 00:08:46.480 --> 00:08:48.980 immense harm just to the president's national 00:08:48.980 --> 00:08:52.139 security prerogatives generally here. And the 00:08:52.139 --> 00:08:57.139 D .C. Circuit agreed in the NTU case, and you 00:08:57.139 --> 00:08:59.080 mentioned the NTU case. Just yesterday, the D 00:08:59.080 --> 00:09:02.019 .C. Circuit denied rehearing en banc. in that 00:09:02.019 --> 00:09:04.320 case, that was decided on irreparable harm as 00:09:04.320 --> 00:09:10.759 well. This report seemed to be bothered by some 00:09:10.759 --> 00:09:14.580 statements in the fact sheet. So why don't you 00:09:14.580 --> 00:09:16.600 address those in terms of why you think they 00:09:16.600 --> 00:09:21.120 don't amount to unlawful retaliation? Yes, your 00:09:21.120 --> 00:09:23.480 honor. So the statements in the fact sheet the 00:09:23.480 --> 00:09:29.850 government believes actually get at determinations 00:09:29.850 --> 00:09:33.450 the statute allows the president to make. Even 00:09:33.450 --> 00:09:35.409 though they may be related to First Amendment 00:09:35.409 --> 00:09:39.149 activity, the president has a mandate and the 00:09:39.149 --> 00:09:43.629 president believes he can go through and try 00:09:43.629 --> 00:09:47.029 to reform the federal government and reform agencies, 00:09:47.409 --> 00:09:49.169 including agencies like the State Department 00:09:49.169 --> 00:09:54.129 that engage in national security work. The president, 00:09:54.629 --> 00:09:58.110 in the fact sheet, was describing those reasons 00:09:58.110 --> 00:10:01.370 that the statute actually requires him to make. 00:10:02.450 --> 00:10:05.029 This is like in Yeve's, this court's decision 00:10:05.029 --> 00:10:08.509 in Boquist. This is a determination that, in 00:10:08.509 --> 00:10:12.090 a context, that First Amendment activity and 00:10:12.090 --> 00:10:15.850 speech is going to be part of any determination. 00:10:16.720 --> 00:10:20.320 And we think that's okay. Now, even if you disagree 00:10:20.320 --> 00:10:22.460 with us on that, we think under Trump versus 00:10:22.460 --> 00:10:28.360 Hawaii, even if there was one impermissible retaliatory 00:10:28.360 --> 00:10:31.620 reason for an action, we think that where there's 00:10:31.620 --> 00:10:34.639 another facially legitimate reason or other facially 00:10:34.639 --> 00:10:36.659 legitimate reasons, which we think clearly there 00:10:36.659 --> 00:10:41.679 are here, the court would still have to say the 00:10:41.679 --> 00:10:45.549 district court's injunction. The district court 00:10:45.549 --> 00:10:50.370 took issue with the scope of the executive order, 00:10:50.370 --> 00:10:53.929 commenting that it's much broader than the executive 00:10:53.929 --> 00:10:56.269 orders that were issued by prior administrations 00:10:56.269 --> 00:10:59.129 and covers entire cabinet level departments. 00:10:59.750 --> 00:11:03.669 Are there any limits on the scope of the president's 00:11:03.669 --> 00:11:07.070 authority under the statute to exclude parts 00:11:07.070 --> 00:11:11.529 of the government from collective bargaining 00:11:11.529 --> 00:11:14.450 and these labor provisions? Could the president 00:11:14.450 --> 00:11:17.590 theoretically exclude the entire federal workforce? 00:11:18.970 --> 00:11:22.110 Your honor, I'm not prepared to offer today any 00:11:22.110 --> 00:11:24.090 limitations on the president's authority in this 00:11:24.090 --> 00:11:28.710 context. And that's not really at all what has 00:11:28.710 --> 00:11:30.429 happened here. I mean, the president, if you 00:11:30.429 --> 00:11:31.950 look at the fact sheet that plaintiffs want to 00:11:31.950 --> 00:11:35.919 rely on, it goes through specific of reasons 00:11:35.919 --> 00:11:39.019 that each of these agencies is engaged in national 00:11:39.019 --> 00:11:42.500 security work. And we think that it's, we think 00:11:42.500 --> 00:11:46.419 that courts engaging in determinations on an 00:11:46.419 --> 00:11:48.659 agency by agency, subdivision by subdivision 00:11:48.659 --> 00:11:50.620 level about what agencies are engaged in national 00:11:50.620 --> 00:11:53.080 security is something we don't really think that 00:11:53.080 --> 00:11:55.500 district courts should be doing. For example, 00:11:55.580 --> 00:11:57.659 the district court here cited the National Institute 00:11:57.659 --> 00:11:59.980 of Allergy and Infectious Diseases. Under the 00:11:59.980 --> 00:12:02.700 district court's reasoning, An agency that is 00:12:02.700 --> 00:12:05.740 trying to prevent a future COVID -19 pandemic 00:12:05.740 --> 00:12:09.580 and is engaged in work trying to prevent bioterrorism, 00:12:09.899 --> 00:12:13.200 it would simply be overbroad to include such 00:12:13.200 --> 00:12:15.220 an agency under the district court's reasoning. 00:12:15.559 --> 00:12:17.519 And under Trump versus Hawaii, overbreath in 00:12:17.519 --> 00:12:19.259 this context, in the First Amendment context, 00:12:19.519 --> 00:12:23.220 is not a reason that you would, because of the 00:12:23.220 --> 00:12:24.919 deference owed to the president's national security 00:12:24.919 --> 00:12:26.860 determinations, it's not a reason that you would. 00:12:27.399 --> 00:12:29.759 um quite want to question the president's authority 00:12:29.759 --> 00:12:31.620 here or that we think the court the district 00:12:31.620 --> 00:12:34.399 have authority to do so at all well i understand 00:12:34.399 --> 00:12:37.279 that the president did not do what i'm suggesting 00:12:37.279 --> 00:12:39.399 here that's a hypothetical but what i'm getting 00:12:39.399 --> 00:12:42.100 at is are there any limits are there any handles 00:12:42.100 --> 00:12:44.240 that we can put on this i mean it's the government 00:12:44.240 --> 00:12:46.379 does the government can see that there could 00:12:46.379 --> 00:12:49.659 be limits that um something that was so broad 00:12:49.659 --> 00:12:53.379 as such as what i described would not fit within 00:12:53.379 --> 00:12:56.070 the president's authority under the statute Your 00:12:56.070 --> 00:12:58.529 honor, the president has to make determinations 00:12:58.529 --> 00:13:01.909 under the statute that agencies are engaged in, 00:13:02.269 --> 00:13:04.909 have a primary purpose of national security, 00:13:05.110 --> 00:13:07.409 counterintelligence, intelligence, or investigative 00:13:07.409 --> 00:13:09.889 work, and that applying the provisions of the 00:13:09.889 --> 00:13:15.049 statute would impair national security. We think 00:13:15.049 --> 00:13:17.909 that if the president makes those determinations, 00:13:18.990 --> 00:13:25.990 they're unreviewable beyond that. I'm sorry, 00:13:26.029 --> 00:13:28.830 go ahead. We think this follows from the D .C. 00:13:28.850 --> 00:13:32.649 Circuit's AFGE versus Reagan decision from 1989, 00:13:33.289 --> 00:13:37.029 where the court said the president made those 00:13:37.029 --> 00:13:42.830 required determinations and that was it. So your 00:13:42.830 --> 00:13:45.629 friend on the other side has argued in their 00:13:45.629 --> 00:13:50.049 response that Trump versus Hawaii doesn't apply 00:13:50.049 --> 00:13:52.070 because that was in the context of admitting 00:13:53.669 --> 00:13:57.809 persons into the United States versus domestic 00:13:57.809 --> 00:14:03.669 issues. It was in that context, that's correct. 00:14:03.789 --> 00:14:07.370 Is that a distinction we can or should draw to 00:14:07.370 --> 00:14:12.070 limit national security concerns to foreign matters 00:14:12.070 --> 00:14:15.399 or persons entering the country? We don't think 00:14:15.399 --> 00:14:18.259 so, Your Honor. And for this reason, we think 00:14:18.259 --> 00:14:22.220 that the way the court reasoned in that case 00:14:22.220 --> 00:14:25.820 is that, yes, it involved admitting foreign nationals, 00:14:25.840 --> 00:14:29.200 but it also was the national security concerns 00:14:29.200 --> 00:14:31.240 with doing so that were animating that decision. 00:14:31.299 --> 00:14:33.440 And we think that the Supreme Court's decision 00:14:33.440 --> 00:14:38.059 is broader. And regardless, even if you disagreed 00:14:38.059 --> 00:14:41.830 with us on that, We also raised that under the 00:14:41.830 --> 00:14:44.169 typical First Amendment retaliation standard, 00:14:44.450 --> 00:14:47.269 there would be sufficient significant deference 00:14:47.269 --> 00:14:50.110 owed to the president in this context. We think 00:14:50.110 --> 00:14:52.929 that's the Webster versus Doe case, but also 00:14:52.929 --> 00:14:56.830 AFG versus Reagan, and that there would still 00:14:56.830 --> 00:14:58.610 be a significant deference to the president. 00:14:59.230 --> 00:15:01.970 The district court did not respect that deference 00:15:01.970 --> 00:15:05.960 at all and in fact forgot an entire. A part of 00:15:05.960 --> 00:15:08.379 the first amendment standard which in the retaliation 00:15:08.379 --> 00:15:11.840 context involves whether asking after plaintiffs 00:15:11.840 --> 00:15:15.799 have pled their prima facie case whether The 00:15:15.799 --> 00:15:18.080 government would have instituted the same policy 00:15:18.080 --> 00:15:22.100 regardless of the retaliatory alleged retaliatory 00:15:22.100 --> 00:15:30.379 intent Ask a little bit different question the 00:15:30.379 --> 00:15:34.179 district court here relied on the serious questions 00:15:34.179 --> 00:15:39.720 aspect, framing of our preliminary injunction 00:15:39.720 --> 00:15:42.360 tests. Does the government have a position on 00:15:42.360 --> 00:15:44.580 whether that test is consistent with the winter 00:15:44.580 --> 00:15:47.759 factors? Your honor, the government does not 00:15:47.759 --> 00:15:49.500 believe that test is consistent with the winter 00:15:49.500 --> 00:15:52.539 factors. However, under this court's precedent, 00:15:52.980 --> 00:15:56.419 we do think that the panel has to consider the 00:15:56.419 --> 00:16:01.000 district court's order using that standard. However, 00:16:01.799 --> 00:16:06.580 the district court's order, it mentions that 00:16:06.580 --> 00:16:10.120 in order to apply serious questions under the 00:16:10.120 --> 00:16:12.740 Alliance for Wild Rockies versus Cottrell case, 00:16:13.200 --> 00:16:17.929 that you The equities then have to sharply tip 00:16:17.929 --> 00:16:20.610 in the favor of plaintiffs. I mean, we just don't 00:16:20.610 --> 00:16:22.889 think that that happened here at all. But yes, 00:16:22.970 --> 00:16:24.870 the government would like to preserve for further 00:16:24.870 --> 00:16:27.870 review that the serious questions doctorate is 00:16:27.870 --> 00:16:31.009 inconsistent with the winter factors. And we 00:16:31.009 --> 00:16:32.710 raised this issue in the district court as well. 00:16:32.809 --> 00:16:36.029 But the district court told us that this was 00:16:36.029 --> 00:16:39.860 a long standing night circuit. rule and proceeded 00:16:39.860 --> 00:16:42.000 to apply the standard in this context. And we 00:16:42.000 --> 00:16:44.340 don't even think under, as I mentioned, we don't 00:16:44.340 --> 00:16:46.779 even think under the actually Ninth Circuit precedent, 00:16:46.820 --> 00:16:49.080 given that the equities don't sharply tip in 00:16:49.080 --> 00:16:52.559 favor of plaintiffs here, especially given the 00:16:52.559 --> 00:16:55.559 district court's order really impeding on the 00:16:55.559 --> 00:16:57.779 president's national security prerogatives. So, 00:16:57.779 --> 00:17:00.039 yeah, recognizing we're bound by Alliance for 00:17:00.039 --> 00:17:02.779 the Wild Rockies, what is the government's reason 00:17:02.779 --> 00:17:06.140 for why the serious questions test is inconsistent 00:17:06.140 --> 00:17:11.279 with winter? Your honor, the reason is that you 00:17:11.279 --> 00:17:13.839 have to show a likelihood of success on the merits, 00:17:14.500 --> 00:17:16.660 and you have to show under the Supreme Court's 00:17:16.660 --> 00:17:18.539 recent precedents, including the Starbucks case 00:17:18.539 --> 00:17:21.960 last term, you have to make a showing on each 00:17:21.960 --> 00:17:25.519 of those factors. And the Ninth Circuit has specifically 00:17:25.519 --> 00:17:28.200 said in a case we signed in our brief, another 00:17:28.200 --> 00:17:31.200 alliance for Wild Rocky's case that in 2017, 00:17:31.880 --> 00:17:34.240 that the likelihood of success, the serious questions 00:17:34.240 --> 00:17:36.599 doctrine is a lower standard than likelihood 00:17:36.599 --> 00:17:38.880 of success. And frankly, under Supreme Court 00:17:38.880 --> 00:17:42.299 precedent, that is, and very clearly decided 00:17:42.299 --> 00:17:44.619 in the Starbucks case last term, that is not 00:17:44.619 --> 00:17:48.579 sufficient. That is not sufficient to show a 00:17:48.579 --> 00:17:50.220 likelihood of success, especially when the court 00:17:50.220 --> 00:17:52.960 has recognized that it's actually a lower standard. 00:18:03.569 --> 00:18:06.109 Your Honor, if I may, I want to talk a little 00:18:06.109 --> 00:18:10.470 bit about the jurisdictional question here. We 00:18:10.470 --> 00:18:15.089 think that the district court did not have jurisdiction, 00:18:15.210 --> 00:18:18.309 and we've talked a little bit about that. We 00:18:18.309 --> 00:18:20.529 think the Thunderbasin factors, and especially 00:18:20.529 --> 00:18:24.430 the Supreme Court's Elgin decision, clearly mean 00:18:24.430 --> 00:18:26.289 that the district court did not have jurisdiction 00:18:26.289 --> 00:18:28.470 here. There are many ways plaintiffs could have 00:18:28.470 --> 00:18:31.029 raised these claims inside the FLRA. They could 00:18:31.029 --> 00:18:34.069 have filed a charge with the FLRA, whose general 00:18:34.069 --> 00:18:36.710 counsel would then have to investigate the charge. 00:18:37.000 --> 00:18:41.220 They could have filed a grievance with an arbitrator. 00:18:41.839 --> 00:18:45.319 And even though we've advocated staying some 00:18:45.319 --> 00:18:47.480 of those arbitrations or holding them in abeyance, 00:18:48.160 --> 00:18:50.240 we're still complying with them and showing up 00:18:50.240 --> 00:18:54.799 with them at this point. We also, the plaintiffs 00:18:54.799 --> 00:18:57.400 could have also raised opposed dismissal in one 00:18:57.400 --> 00:19:00.299 of the pending FLRA matters involving these particular 00:19:00.299 --> 00:19:04.079 agencies. There's, the Thunder Basin factors 00:19:04.079 --> 00:19:08.670 require due to show that in order for a district 00:19:08.670 --> 00:19:10.190 court to have jurisdiction, plaintiffs would 00:19:10.190 --> 00:19:13.029 have to show that not giving the district court 00:19:13.029 --> 00:19:15.049 jurisdiction would foreclose all meaningful judicial 00:19:15.049 --> 00:19:17.230 review. The suit would be wholly collateral to 00:19:17.230 --> 00:19:19.349 the statute's review provisions, and the claims 00:19:19.349 --> 00:19:21.309 would have to fall outside the agency's expertise. 00:19:21.670 --> 00:19:24.470 We think on each of those prongs, plaintiffs 00:19:24.470 --> 00:19:29.259 have not made such a showing. And ultimately 00:19:29.259 --> 00:19:31.960 everything here in this case can be remedied 00:19:31.960 --> 00:19:35.480 at the end by the FLRA. So we're not, so we just 00:19:35.480 --> 00:19:37.279 don't think that there was jurisdiction at all 00:19:37.279 --> 00:19:39.079 under the thunder basin factors. And plaintiffs 00:19:39.079 --> 00:19:42.579 don't even really mention or make this argument, 00:19:42.940 --> 00:19:45.480 but a lot of times a plaintiffs make an argument 00:19:45.480 --> 00:19:49.519 that. oh, the FLRA or some agency couldn't really 00:19:49.519 --> 00:19:51.519 consider constitutional questions like we're 00:19:51.519 --> 00:19:54.220 considering here, but the FLRA considers constitutional 00:19:54.220 --> 00:19:57.019 questions all the time and does so in the context 00:19:57.019 --> 00:20:00.599 of reviewing arbitration awards for compliance 00:20:00.599 --> 00:20:03.720 with law. In our reply brief at page six, we 00:20:03.720 --> 00:20:09.359 discussed that. In the FLRA proceedings involving 00:20:09.359 --> 00:20:12.319 the Supreme Court's recent Ohio adjudicant general 00:20:12.319 --> 00:20:16.720 case involving the Ohio National Guard, the FLRA 00:20:16.720 --> 00:20:19.339 had to consider the militia clause and whether 00:20:19.339 --> 00:20:22.500 that applied. So we think this is clearly within 00:20:22.500 --> 00:20:24.980 the agency's expertise, even on the constitutional 00:20:24.980 --> 00:20:27.079 questions. And ultimately plaintiff's claims 00:20:27.079 --> 00:20:29.579 are really statutory questions about whether 00:20:29.579 --> 00:20:32.259 the government has to comply or is appropriately 00:20:32.259 --> 00:20:35.160 complying with the collective bargaining agreements 00:20:35.160 --> 00:20:38.480 at issue here. What about the fact that some 00:20:38.480 --> 00:20:42.460 agencies file lawsuits basically seeking declaratory 00:20:42.460 --> 00:20:47.339 judgments in federal court? Your honor, those 00:20:47.339 --> 00:20:51.000 lawsuits, we think, are fundamentally different 00:20:51.000 --> 00:20:54.240 from what could not have really been brought 00:20:54.240 --> 00:20:56.779 in the FLRA. But regardless, that has nothing 00:20:56.779 --> 00:21:00.759 to do with this court's jurisdiction. Those lawsuits, 00:21:00.980 --> 00:21:03.940 that would require us to assume that those lawsuits 00:21:03.940 --> 00:21:05.359 are going to succeed. There's currently pending 00:21:05.359 --> 00:21:08.299 motions to dismiss in the case in Texas that 00:21:08.299 --> 00:21:12.619 plaintiff cite. And we think that the district 00:21:12.619 --> 00:21:14.880 court said, oh, it might be unfair if the plaintiffs 00:21:14.880 --> 00:21:18.160 couldn't bring something in the FLRA as a result, 00:21:18.519 --> 00:21:20.640 but the government thought it could. But that 00:21:20.640 --> 00:21:22.559 has nothing to do with jurisdiction. And we think 00:21:22.559 --> 00:21:26.259 those two things have to be considered separately. 00:21:27.579 --> 00:21:29.380 Why doesn't it have to do with jurisdiction? 00:21:29.539 --> 00:21:32.779 I mean, doesn't it seem like the government obviously 00:21:32.779 --> 00:21:35.660 takes the position that there is jurisdiction 00:21:35.660 --> 00:21:38.839 in the Texas case, but there's not here? What 00:21:38.839 --> 00:21:43.700 else does it go to other than jurisdiction? This 00:21:43.700 --> 00:21:46.579 is more a policy choice that Congress has made. 00:21:47.700 --> 00:21:51.400 If you look at the Elgin case, Congress has made 00:21:51.400 --> 00:21:53.559 the policy determination that plaintiffs have 00:21:53.559 --> 00:21:58.940 to bring their claims inside of the FLRA and 00:21:58.940 --> 00:22:03.619 work that out to a court of appeals. And we just, 00:22:03.680 --> 00:22:05.700 we don't think that it matters whether the government 00:22:05.700 --> 00:22:08.279 can bring a district court suit at all. I mean, 00:22:08.359 --> 00:22:10.339 we think that's more of a policy argument about 00:22:10.339 --> 00:22:14.019 what should happen, then like if the government, 00:22:14.200 --> 00:22:16.160 whether it's fair to plaintiffs, then whether 00:22:16.160 --> 00:22:18.420 it actually, then it actually goes to jurisdiction. 00:22:18.559 --> 00:22:21.099 So yes, it relates to jurisdiction, but in terms 00:22:21.099 --> 00:22:24.380 of whether you, whether it's more of a policy, 00:22:24.400 --> 00:22:27.400 a policy thing, not something else. If the government 00:22:27.400 --> 00:22:29.539 had filed this same case that we're talking about, 00:22:29.539 --> 00:22:31.299 if the government was the plaintiff and filed 00:22:31.299 --> 00:22:34.180 the declare. judgment against the union, your 00:22:34.180 --> 00:22:37.059 position would be there's jurisdiction over that. 00:22:40.379 --> 00:22:42.660 Your honor, the case would be a little bit different 00:22:42.660 --> 00:22:44.619 because we would be asking for a declaratory 00:22:44.619 --> 00:22:47.920 judgment that we could cancel the CBAs. The government, 00:22:48.079 --> 00:22:50.660 we think, has the ability to file such actions 00:22:50.660 --> 00:22:54.839 to avoid all the problems that would be caused 00:22:54.839 --> 00:22:56.339 by canceling the CBAs. I mean, there's a lot 00:22:56.339 --> 00:22:59.680 of reasons the government hasn't canceled the 00:22:59.680 --> 00:23:03.220 vast majority of CBAs here, just because that 00:23:03.220 --> 00:23:06.200 would cause a lot of remedial problems, potentially 00:23:06.200 --> 00:23:08.900 subjecting the government to significant amounts 00:23:08.940 --> 00:23:20.799 the damages, etc, etc. Well, Mr. Becker, if you 00:23:20.799 --> 00:23:22.859 don't have any other points to make and we don't 00:23:22.859 --> 00:23:24.420 have any questions, don't you want to save around 00:23:24.420 --> 00:23:27.640 five minutes with seven and a half work? Uh, 00:23:27.819 --> 00:23:29.119 that works. That works for the government, your 00:23:29.119 --> 00:23:39.259 honor. Okay, very well. Good morning, your honors, 00:23:39.440 --> 00:23:41.579 may it please the court, Ramya Ravindran on behalf 00:23:41.579 --> 00:23:45.119 of the APA Lees. This case involves a challenge 00:23:45.119 --> 00:23:47.940 to an executive order that eliminated statutory 00:23:47.940 --> 00:23:50.079 labor law protections and collective bargaining 00:23:50.079 --> 00:23:53.039 rights for approximately two thirds of the federal 00:23:53.039 --> 00:23:55.539 workforce. As the district court found in its 00:23:55.539 --> 00:23:57.859 preliminary injunction order, this executive 00:23:57.859 --> 00:24:00.359 order is unprecedented in size and scope from 00:24:00.359 --> 00:24:04.779 prior exclusion orders under 7103B, and that 00:24:04.779 --> 00:24:07.299 overbreath is combined with some peculiar line 00:24:07.299 --> 00:24:10.180 drawing that resulted in bargaining rights for 00:24:10.180 --> 00:24:13.279 some employees at an agency while maintaining, 00:24:13.279 --> 00:24:15.240 eliminating bargaining rights for some employees 00:24:15.240 --> 00:24:17.720 at an agency while maintaining them for other 00:24:17.720 --> 00:24:20.059 employees who work at those very same agencies. 00:24:20.880 --> 00:24:23.660 The rationale for this order was explained in 00:24:23.660 --> 00:24:25.700 a fact sheet that was published by the White 00:24:25.700 --> 00:24:28.799 House along with the executive order, which stated 00:24:28.799 --> 00:24:31.420 that it was targeted at federal unions who had 00:24:31.420 --> 00:24:34.240 engaged in speech and petitioning activity critical 00:24:34.240 --> 00:24:38.339 of the president's agenda. Based on the unprecedented 00:24:38.339 --> 00:24:41.059 scope of the order, the rationale that was set 00:24:41.059 --> 00:24:43.839 forth in the fact sheet and uncontested factual 00:24:43.839 --> 00:24:47.000 submissions, demonstrating irreparable harm suffered 00:24:47.000 --> 00:24:49.660 by the plaintiffs and their members, the district 00:24:49.660 --> 00:24:52.359 court granted plaintiffs in motion for preliminary 00:24:52.359 --> 00:24:55.940 injunction. That injunction would maintain the 00:24:55.940 --> 00:24:58.920 status quo labor relations framework that has 00:24:58.920 --> 00:25:02.059 existed since 1978 and that the defendant agencies 00:25:02.059 --> 00:25:06.000 here have been operating under since 1978 pending 00:25:06.000 --> 00:25:08.420 resolution of the government's appeal of the 00:25:08.420 --> 00:25:10.660 P .I., which is proceeding on an expeditious 00:25:10.660 --> 00:25:14.880 schedule opening briefs are due next week. The 00:25:14.880 --> 00:25:17.400 defendant's stay motion does not demonstrate 00:25:17.400 --> 00:25:20.059 error in the district court's analysis, nor did 00:25:20.059 --> 00:25:22.680 their newly submitted declarations establish 00:25:22.680 --> 00:25:25.240 the type of irreparable harm that would warrant 00:25:25.240 --> 00:25:31.279 a stay pending appeal of the PI. Since jurisdiction 00:25:31.279 --> 00:25:33.859 was brought up at the end, but because it is 00:25:33.859 --> 00:25:38.140 jurisdiction, I will start with that. The government's 00:25:38.140 --> 00:25:40.220 jurisdictional argument was correctly rejected 00:25:40.220 --> 00:25:42.299 by the district court as it was also rejected 00:25:42.299 --> 00:25:45.460 by the district court in D .C. in the NTEU case 00:25:45.460 --> 00:25:48.400 that Judge Bress referenced. The government's 00:25:48.400 --> 00:25:51.680 argument here is that even though the plaintiffs 00:25:51.680 --> 00:25:54.740 and their members are no longer covered by Chapter 00:25:54.740 --> 00:25:58.579 71, the statute that creates the FLRA and that 00:25:58.579 --> 00:26:00.980 defines the scope of the FLRA's jurisdiction. 00:26:01.559 --> 00:26:03.279 Plaintiffs and their members no longer have rights 00:26:03.279 --> 00:26:05.980 and protections under that statute. The agencies 00:26:05.980 --> 00:26:08.079 are no longer covered by that statute and have 00:26:08.079 --> 00:26:10.740 no obligation to comply with the terms of that 00:26:10.740 --> 00:26:14.180 statute. Nevertheless, the statutory scheme that 00:26:14.180 --> 00:26:16.859 only extends to parties within the scope of the 00:26:16.859 --> 00:26:20.119 statute is the exclusive form for the plaintiffs. 00:26:20.619 --> 00:26:23.420 But if the government wants to seek review of 00:26:23.420 --> 00:26:26.380 the validity of the executive order, it is free 00:26:26.380 --> 00:26:28.880 to bring that claim in federal district court. 00:26:29.299 --> 00:26:31.700 That would be an unprecedented application of 00:26:31.700 --> 00:26:34.900 the channeling doctrine, and therefore it was 00:26:34.900 --> 00:26:37.400 correctly rejected. Channeling is a question 00:26:37.400 --> 00:26:39.900 of congressional intent, and there is nothing 00:26:39.900 --> 00:26:42.880 in the statute that suggests Congress intended 00:26:42.880 --> 00:26:46.740 for the FLRA to exercise jurisdiction over non 00:26:46.740 --> 00:26:50.720 -covered entities nor to set up an unbalanced 00:26:50.720 --> 00:26:53.799 scheme where only union claims are challenged 00:26:53.799 --> 00:26:57.259 and government claims are not. That is not the 00:26:57.259 --> 00:27:00.000 FLRA's authority. Whether if there are covered 00:27:00.000 --> 00:27:02.319 entities bringing covered claims, whether it's 00:27:02.319 --> 00:27:05.359 the union or the agency, those go to the FLRA 00:27:05.359 --> 00:27:11.500 and that channel is closed. otherwise. That statutory 00:27:11.500 --> 00:27:13.900 scheme is not available to the plaintiffs here 00:27:13.900 --> 00:27:16.140 and therefore the district court correctly found 00:27:16.140 --> 00:27:19.380 just like the DC Circuit in the Nicholson case 00:27:19.380 --> 00:27:22.099 that we cited in our brief. when an executive 00:27:22.099 --> 00:27:26.799 action takes a matter outside of the FLRA's purview, 00:27:26.880 --> 00:27:29.779 which is what has occurred here with this executive 00:27:29.779 --> 00:27:33.119 order that excludes these agencies from the coverage 00:27:33.119 --> 00:27:36.819 of chapter 71, it is appropriate for a challenge 00:27:36.819 --> 00:27:39.940 to the legality of that executive action to be 00:27:39.940 --> 00:27:45.859 brought in federal district court. in its reply 00:27:45.859 --> 00:27:48.720 essentially said, well, your position is that 00:27:48.720 --> 00:27:52.259 your clients are covered by the statute and you 00:27:52.259 --> 00:27:54.619 believe the executive order to be unlawful. And 00:27:54.619 --> 00:27:58.680 so you should therefore be required to pursue 00:27:58.680 --> 00:28:02.839 the FLRA remedial scheme in light of that. I 00:28:02.839 --> 00:28:05.079 mean, there's a bit of a tail chasing problem 00:28:05.079 --> 00:28:08.420 with this particular issue. So how do you respond 00:28:08.420 --> 00:28:12.390 on that point? Well, so the case that the government 00:28:12.390 --> 00:28:15.940 cites in support of that is a... a case that 00:28:15.940 --> 00:28:19.380 involves standing and particularly involves regressibility, 00:28:19.440 --> 00:28:22.059 where the court does assume whether the plaintiff 00:28:22.059 --> 00:28:24.039 is going to succeed on the merits in order to 00:28:24.039 --> 00:28:26.319 determine whether the injury that's asserted 00:28:26.319 --> 00:28:29.200 is regressible for Article III standing purposes. 00:28:29.740 --> 00:28:32.819 Channeling, though, that is a matter of congressional 00:28:32.819 --> 00:28:35.660 intent. Did Congress intend that this is the 00:28:35.660 --> 00:28:39.799 type of claim that should go to the administrative 00:28:39.799 --> 00:28:43.700 agency first? And that congressional intent is 00:28:43.700 --> 00:28:47.619 lacking here. because the statute does not grant 00:28:47.619 --> 00:28:50.900 the FLRA jurisdiction over entities that are 00:28:50.900 --> 00:28:54.799 outside the scope of the statute. And it doesn't 00:28:54.799 --> 00:29:00.619 provide whether it's the union or the agency, 00:29:01.039 --> 00:29:04.299 if it's a non -covered entity, then the FLRA 00:29:04.299 --> 00:29:06.980 lacks authority to decide any claims that are 00:29:06.980 --> 00:29:10.160 brought by non -covered entities. Doesn't your 00:29:10.160 --> 00:29:15.339 argument assume that the executive order is valid 00:29:15.339 --> 00:29:17.319 and that the government prevails. It seems that 00:29:17.319 --> 00:29:21.920 the issue that would be before the FLRA is the 00:29:21.920 --> 00:29:24.980 very crux of the issue. Is it valid? Are these 00:29:24.980 --> 00:29:27.759 agencies and departments excluded? Are these 00:29:27.759 --> 00:29:31.559 employees excluded? That the FLRA would not assume 00:29:31.559 --> 00:29:33.539 that to be the case, but that would be the question 00:29:33.539 --> 00:29:36.759 presented to them. And if that is so, why is 00:29:36.759 --> 00:29:38.940 that not within their purview and their expertise? 00:29:39.359 --> 00:29:42.200 The reason it's not, wouldn't be, it's not within 00:29:42.200 --> 00:29:44.059 their purview is the fact that it wouldn't have 00:29:44.059 --> 00:29:46.579 jurisdiction to decide a claim against a, one 00:29:46.579 --> 00:29:49.200 of the defendant agencies here because that agency 00:29:49.200 --> 00:29:51.240 is excluded. And that's what we've seen in the 00:29:51.240 --> 00:29:53.180 process. You're saying the same thing. My point 00:29:53.180 --> 00:29:55.160 is that you're assuming that's the case, but 00:29:55.160 --> 00:29:58.559 that would be the very issue. Is it within their 00:29:58.559 --> 00:30:01.039 jurisdiction? Are they excluded? That would be 00:30:01.039 --> 00:30:02.420 the question, the question, the very question 00:30:02.420 --> 00:30:03.920 you presented to the district court would be 00:30:03.920 --> 00:30:06.039 the very question you would present to the FLRA. 00:30:06.440 --> 00:30:10.099 Why the FLRA would lack authority to decide that 00:30:10.099 --> 00:30:14.299 claim is that the question of the scope of presidential 00:30:14.299 --> 00:30:18.380 exclusion of an agency under 7103B is not a matter 00:30:18.380 --> 00:30:21.720 that's committed to the FLRA. The FLRA decides 00:30:21.720 --> 00:30:25.039 labor management disputes and it's enumerated 00:30:25.039 --> 00:30:27.859 in the statute, particular provisions of the 00:30:27.859 --> 00:30:32.299 statute. 7103B does not give the FLRA the authority 00:30:32.299 --> 00:30:38.220 to review the president's of that exception and 00:30:38.220 --> 00:30:41.059 exclude an agency from the coverage of the statute 00:30:41.059 --> 00:30:44.059 altogether. But do you think that it does give 00:30:44.059 --> 00:30:47.099 the district court the ability to review the 00:30:47.099 --> 00:30:49.200 president's national security determinations? 00:30:49.599 --> 00:30:52.240 It gives the district court the authority to 00:30:52.240 --> 00:30:56.220 review the constitutional challenges to the president's 00:30:56.220 --> 00:31:00.299 invocation of 7103B. And that's the issue that 00:31:00.299 --> 00:31:02.480 the district court found that's before the court 00:31:02.480 --> 00:31:05.640 here is a First Amendment claim. And courts absolutely 00:31:05.640 --> 00:31:09.039 have the ability to review whether presidential 00:31:09.039 --> 00:31:12.500 action violates the First Amendment. So maybe 00:31:12.500 --> 00:31:16.240 walk through what is the evidence of First Amendment 00:31:16.240 --> 00:31:20.880 retaliation. So the primary evidence of the First 00:31:20.880 --> 00:31:23.440 Amendment retaliation comes from the White House's 00:31:23.440 --> 00:31:26.059 own statements that is published in the fact 00:31:26.059 --> 00:31:31.019 sheet. So that fact sheet was the rationale for 00:31:31.019 --> 00:31:34.460 this very executive order. It's not an extrinsic 00:31:34.460 --> 00:31:38.000 statement or an unconnected statement. It is 00:31:38.000 --> 00:31:42.339 an official document published by the White House. 00:31:43.480 --> 00:31:46.859 What specific statements in it are the troubling 00:31:46.859 --> 00:31:51.660 ones to you? The ones are the, first of all, 00:31:52.799 --> 00:31:56.920 the reference to, so the fact sheet refers to 00:31:56.920 --> 00:32:00.079 hostile federal unions, and then it goes on to 00:32:00.079 --> 00:32:02.640 explain what the hostility of that act is, where 00:32:02.640 --> 00:32:06.200 it states that it references. The largest federal 00:32:06.200 --> 00:32:09.059 reunion, which is plaintiff AFG, so it was referenced 00:32:09.059 --> 00:32:12.180 directly in this, describes itself as fighting 00:32:12.180 --> 00:32:14.799 back against Trump. The words fighting back are 00:32:14.799 --> 00:32:17.420 in quotes in the fact sheet because that's taken 00:32:17.420 --> 00:32:21.440 from an article that AFG published on its website 00:32:21.440 --> 00:32:24.279 where it detailed various First Amendment activity 00:32:24.279 --> 00:32:26.940 that it is engaged in, such as filing lawsuits, 00:32:27.519 --> 00:32:30.539 lobbying members of Congress, engaging in public 00:32:30.539 --> 00:32:33.460 speech that is critical of various policies of 00:32:33.460 --> 00:32:36.710 the administration. has been pursuing. It also 00:32:36.710 --> 00:32:39.869 calls out plaintiff NNU, one of the VA's unions, 00:32:40.529 --> 00:32:43.569 for filing grievances against President Trump's 00:32:43.569 --> 00:32:47.569 policies. So it directly references First Amendment 00:32:47.569 --> 00:32:51.369 activity by the plaintiffs in this case. And 00:32:51.369 --> 00:32:54.849 it goes on to say that, in the closing words 00:32:54.849 --> 00:32:57.680 of that fact sheet, President Trump supports 00:32:57.680 --> 00:33:00.279 constructive partnerships with unions who work 00:33:00.279 --> 00:33:03.559 with him, and therefore makes clear that the 00:33:03.559 --> 00:33:07.000 dividing line between which unions are okay and 00:33:07.000 --> 00:33:09.779 which aren't, when we're going to allow collective 00:33:09.779 --> 00:33:12.559 bargaining in this agency and when we're not, 00:33:12.960 --> 00:33:15.299 is whether or not the union that represents the 00:33:15.299 --> 00:33:19.779 employees in those agencies have expressed sufficient 00:33:19.779 --> 00:33:22.900 support or at least not expressed opposition 00:33:22.900 --> 00:33:26.390 to the president's agenda. That's First Amendment 00:33:26.390 --> 00:33:30.109 retaliation. That's drawing a line and punishing 00:33:30.109 --> 00:33:33.269 those federal unions who have engaged in speech 00:33:33.269 --> 00:33:36.329 and petitioning activity critical of the president. 00:33:37.450 --> 00:33:39.789 And that is First Amendment speech. What do we 00:33:39.789 --> 00:33:42.049 do with the fact that the statute allows the 00:33:42.049 --> 00:33:44.369 president to make a national security determination 00:33:44.369 --> 00:33:48.609 and he did that? And that doesn't seem to be 00:33:48.609 --> 00:33:51.559 reviewable. Well, we would disagree that it's 00:33:51.559 --> 00:33:54.279 not reviewable, but we don't have to even get 00:33:54.279 --> 00:33:57.039 into, that's a different claim that the plaintiffs 00:33:57.039 --> 00:33:59.400 have brought below, which the district court, 00:33:59.480 --> 00:34:01.180 because he ruled on First Amendment grounds, 00:34:01.200 --> 00:34:05.420 didn't reach. But the First Amendment question 00:34:05.420 --> 00:34:08.619 is, first of all, is not reviewable. And here, 00:34:09.139 --> 00:34:12.739 I think the reason, in the government's presentation, 00:34:12.840 --> 00:34:15.900 they referenced Trump v. Hawaii several times. 00:34:17.559 --> 00:34:20.519 That case is distinguishable for multiple reasons. 00:34:20.900 --> 00:34:23.840 But one of them is that what the court was looking 00:34:23.840 --> 00:34:29.480 at in that case is when you had a facially neutral 00:34:29.480 --> 00:34:33.440 rationale set forth, and the court looked at, 00:34:34.179 --> 00:34:38.340 can we look behind that facially neutral rationale 00:34:38.340 --> 00:34:43.360 and cast doubt? on the stated rationale based 00:34:43.360 --> 00:34:46.300 on other statements and other evidence, extrinsic 00:34:46.300 --> 00:34:49.320 evidence. That is not the situation here. We're 00:34:49.320 --> 00:34:52.500 not asking that we don't need to look behind 00:34:52.500 --> 00:34:55.880 any stated motive. We don't need to infer or 00:34:55.880 --> 00:34:58.880 speculate or guess from various pieces of evidence 00:34:58.880 --> 00:35:01.460 that we're putting together. The improper motive 00:35:01.460 --> 00:35:05.539 is set forth in the very explanation of the executive 00:35:05.539 --> 00:35:09.099 order. So we don't need to look behind the rationale. 00:35:10.349 --> 00:35:12.510 To make that statement, you're saying that the 00:35:12.510 --> 00:35:15.769 fact sheet is the rationale for the executive 00:35:15.769 --> 00:35:19.289 order. But the executive order itself is facially 00:35:19.289 --> 00:35:23.050 neutral, as it was in Trump versus Hawaii. And 00:35:23.050 --> 00:35:26.090 I think that's the issue. In Trump versus Hawaii, 00:35:26.429 --> 00:35:28.590 they're talking about looking beyond the executive 00:35:28.590 --> 00:35:31.690 order to statements, things posted on websites, 00:35:31.969 --> 00:35:36.110 et cetera, some before the president was president, 00:35:36.130 --> 00:35:39.590 when he was a candidate here. you're looking 00:35:39.590 --> 00:35:43.110 beyond the executive order to the fact sheet. 00:35:43.530 --> 00:35:45.690 And I think that you've rushed with the frequently 00:35:45.690 --> 00:35:47.309 answered questions as well, but it seems that 00:35:47.309 --> 00:35:48.710 you're really focused on the fact sheet. But 00:35:48.710 --> 00:35:51.309 that's not part of the executive order. So aren't 00:35:51.309 --> 00:35:54.349 we looking beyond the facially neutral executive 00:35:54.349 --> 00:35:56.869 order at that point? So we would not characterize 00:35:56.869 --> 00:36:00.030 the executive order as facially neutral. So the 00:36:00.030 --> 00:36:03.010 executive order on its face says it is eliminating 00:36:03.010 --> 00:36:05.289 collective bargaining rights at a large swath 00:36:05.289 --> 00:36:08.570 of agencies. But within that very order, it then 00:36:08.570 --> 00:36:11.010 carves out and maintains collective bargaining 00:36:11.010 --> 00:36:13.190 rights for other employees at those very same 00:36:13.190 --> 00:36:16.210 agencies, specifically law enforcement employees, 00:36:16.670 --> 00:36:20.070 except for law enforcement employees who work 00:36:20.070 --> 00:36:23.900 at the Bureau of Prisons. where plaintiff AFG 00:36:23.900 --> 00:36:26.340 represents all of the bargaining unit employees 00:36:26.340 --> 00:36:30.519 at the Bureau of Prisons. So there are suspect 00:36:30.519 --> 00:36:33.019 features on the face of the executive order itself. 00:36:33.380 --> 00:36:38.119 And here, the fact sheet is not the type of extrinsic 00:36:38.119 --> 00:36:39.820 evidence that the Supreme Court was referring 00:36:39.820 --> 00:36:44.659 to in Trump v. Hawaii, because it was published 00:36:44.659 --> 00:36:47.480 alongside this executive order, and it calls 00:36:47.480 --> 00:36:51.449 itself the fact sheet. for the executive order. 00:36:51.510 --> 00:36:55.130 So it is directly connected and on its face states 00:36:55.130 --> 00:36:58.670 that it is the official explanation for this 00:36:58.670 --> 00:37:01.150 executive order. How is this not just questioning 00:37:01.150 --> 00:37:04.510 the line drawing on the national security side 00:37:04.510 --> 00:37:06.670 of the house? It seems that it inevitably just 00:37:06.670 --> 00:37:09.570 falls back into that. You see that in the district 00:37:09.570 --> 00:37:11.170 court order too, where the district court says, 00:37:11.309 --> 00:37:13.469 I'm not questioning this, but that at times it 00:37:13.469 --> 00:37:15.489 does appear that the order does question it. 00:37:16.400 --> 00:37:20.559 But the the so the what the district court did 00:37:20.559 --> 00:37:23.059 was find and what we are saying here as well 00:37:23.059 --> 00:37:27.559 is that First Amendment retaliation is not that's 00:37:27.559 --> 00:37:29.719 not national security and that's not a valid 00:37:29.719 --> 00:37:33.579 basis by which government action can be taken. 00:37:33.639 --> 00:37:37.159 It's in the Arizona Students Association case 00:37:37.159 --> 00:37:39.159 from this court, which we cited in our brief, 00:37:39.760 --> 00:37:42.739 as well as in the Boquist case that the government 00:37:42.739 --> 00:37:45.960 cites. In both cases, this court makes the point 00:37:45.960 --> 00:37:50.219 that the fact that an action could have been 00:37:50.219 --> 00:37:53.940 lawfully taken, it is still unlawful if it is 00:37:53.940 --> 00:37:57.460 done so on First Amendment retaliation grounds. 00:37:59.059 --> 00:38:01.920 Any argument that, well, some of these agencies 00:38:01.920 --> 00:38:05.579 maybe could have been excluded or not, or that, 00:38:05.579 --> 00:38:08.599 you know, the president could draw lines in certain 00:38:08.599 --> 00:38:13.079 ways. That's not, there's a threshold problem 00:38:13.079 --> 00:38:16.000 here though, because here those lines were drawn 00:38:16.000 --> 00:38:19.219 on the basis of First Amendment speech as retaliation 00:38:19.219 --> 00:38:21.579 for First Amendment speech, which is unlawful. 00:38:21.579 --> 00:38:25.039 That is unconstitutional. But I have to go back 00:38:25.039 --> 00:38:27.539 to what Judge Bres just asked you. How is that 00:38:27.539 --> 00:38:30.849 not weighing the president's determination on 00:38:30.849 --> 00:38:34.010 national security. I mean, the language in the 00:38:34.010 --> 00:38:36.829 district court's order, preliminary injunction 00:38:36.829 --> 00:38:39.869 order, talks about the scope of the executive 00:38:39.869 --> 00:38:44.369 order, and that certain agencies that are listed 00:38:44.369 --> 00:38:46.250 don't appear as if they have anything to do with 00:38:46.250 --> 00:38:48.869 national security. That just seems to me to be 00:38:48.869 --> 00:38:53.409 naked, unvarnished, straightforward, reweighing 00:38:53.409 --> 00:38:55.329 the president's national security determination, 00:38:55.710 --> 00:38:58.510 whether an agency impacts national security or 00:38:58.510 --> 00:39:00.329 not. I don't know how we view it as anything 00:39:00.329 --> 00:39:05.090 else. I mean, even your scope argument that you're 00:39:05.090 --> 00:39:08.489 talking about, that seems to fall clearly within 00:39:08.489 --> 00:39:10.730 the president's authority to make a national 00:39:10.730 --> 00:39:15.309 security determination. So first of all, the 00:39:15.309 --> 00:39:17.730 scope argument that I'm making as what the district 00:39:17.730 --> 00:39:21.230 court opinion did as well, is that that points 00:39:21.230 --> 00:39:23.530 out that there are suspect features on the face 00:39:23.530 --> 00:39:26.369 of the executive orders. that raises a question. 00:39:26.690 --> 00:39:28.909 The fact sheet then tells us what is going on 00:39:28.909 --> 00:39:31.349 here. Why is it that you have this? I think the 00:39:31.349 --> 00:39:33.730 point is when you say there are suspect features, 00:39:34.010 --> 00:39:36.650 i .e., these are not really national security 00:39:36.650 --> 00:39:39.389 determinations, meaning we're reweighing whether 00:39:39.389 --> 00:39:41.889 they are in fact national security determinations. 00:39:42.809 --> 00:39:45.829 I mean, that's the whole problem that I'm having 00:39:45.829 --> 00:39:48.889 with your argument. So please explain to me why 00:39:48.889 --> 00:39:52.440 this is, I'm wrong. Well so I think what I let 00:39:52.440 --> 00:39:54.500 me step back and I'll put the statute in context 00:39:54.500 --> 00:39:58.099 which I think is important here. 7103B is an 00:39:58.099 --> 00:40:01.559 exception. to a congressional statute that found 00:40:01.559 --> 00:40:05.639 that it is, and these are set forth in 7101, 00:40:05.820 --> 00:40:08.039 the purposes which Congress laid out when it 00:40:08.039 --> 00:40:10.719 passed the statute, where it found that collective 00:40:10.719 --> 00:40:13.219 bargaining and labor organizations in the federal 00:40:13.219 --> 00:40:16.300 workforce increases efficiency within the federal 00:40:16.300 --> 00:40:19.000 government, and having labor organizations is 00:40:19.000 --> 00:40:21.500 in the public interest. And therefore, we are 00:40:21.500 --> 00:40:24.500 providing collective bargaining rights across 00:40:24.500 --> 00:40:28.119 the federal government. 7103B then is an exception 00:40:28.119 --> 00:40:30.820 that when those two national security criteria 00:40:30.820 --> 00:40:34.099 are met, an agency or a subdivision can be excluded. 00:40:34.519 --> 00:40:38.199 Under just general principles of statutory interpretation, 00:40:38.719 --> 00:40:42.340 that exception cannot be read in a way that swallows 00:40:42.340 --> 00:40:47.820 the entire rule. But that's what's at least in 00:40:47.820 --> 00:40:49.780 the government's presentation, I think in response 00:40:49.780 --> 00:40:52.260 to your question, Judge Beatty, about whether 00:40:52.260 --> 00:40:54.860 there are any limits. here, the government's 00:40:54.860 --> 00:40:57.980 interpretation is that the president can declare 00:40:57.980 --> 00:41:01.460 anything to be national security, and that's 00:41:01.460 --> 00:41:03.039 the end of it. The court cannot work. What does 00:41:03.039 --> 00:41:04.659 any of this have to do with the First Amendment? 00:41:04.840 --> 00:41:08.739 I mean, this is looking at B1 and trying to ask, 00:41:09.559 --> 00:41:12.039 can the president essentially exclude all employees? 00:41:12.079 --> 00:41:14.599 He hasn't done that here, but there's some reason 00:41:14.599 --> 00:41:17.320 to think about what would happen if he did. But 00:41:17.320 --> 00:41:20.219 even so, I mean, that gets into a, that's that 00:41:20.219 --> 00:41:22.400 issue. That's the issue before us is the argument 00:41:22.400 --> 00:41:27.960 that There's First Amendment animus that's so 00:41:27.960 --> 00:41:31.219 powerful that we should undo this. Right. And 00:41:31.219 --> 00:41:34.559 my argument on the First Amendment animus is 00:41:34.559 --> 00:41:37.000 what I stated before. The First Amendment animus 00:41:37.000 --> 00:41:39.980 here is stated outright in the official explanation 00:41:39.980 --> 00:41:43.159 of the executive order. And that's what the district 00:41:43.159 --> 00:41:46.579 court cited and relied on. And that provides 00:41:46.579 --> 00:41:50.019 the motive. There's no further inferences. Why 00:41:50.019 --> 00:41:52.920 wouldn't we read that? the statements just as 00:41:52.920 --> 00:41:54.980 good part and parcel of the national security 00:41:54.980 --> 00:41:59.619 rationale because that would then mean that we're 00:41:59.619 --> 00:42:03.760 defining national security to mean political 00:42:03.760 --> 00:42:06.280 allegiance to the president political support 00:42:06.280 --> 00:42:10.940 of the president's agenda that if it were a threat 00:42:10.940 --> 00:42:14.969 to national security for domestic organizations 00:42:14.969 --> 00:42:17.889 to engage in public criticism and opposition 00:42:17.889 --> 00:42:20.969 to the president's policies through constitutionally 00:42:20.969 --> 00:42:23.329 protected avenue. We're talking about filing 00:42:23.329 --> 00:42:27.030 lawsuits, making public statements, using the 00:42:27.030 --> 00:42:30.010 statutory provisions that are granted. These 00:42:30.010 --> 00:42:32.780 are legal. constitutionally protected avenues 00:42:32.780 --> 00:42:36.860 to engage in speech. That cannot be seen as the 00:42:36.860 --> 00:42:38.940 threat to national security. That runs right 00:42:38.940 --> 00:42:45.019 into the First Amendment. So you pointed to two 00:42:45.019 --> 00:42:48.199 bullets, I think, in the fact sheet. What would 00:42:48.199 --> 00:42:50.159 have happened if the fact sheet just hadn't had 00:42:50.159 --> 00:42:54.909 those two bullets? Well, it's not two bullets. 00:42:55.369 --> 00:42:57.869 It's more than that, but just to answer your 00:42:57.869 --> 00:42:59.949 honor's question. Well, let's just pin that down 00:42:59.949 --> 00:43:02.449 actually. I see the fighting back. I see the 00:43:02.449 --> 00:43:07.210 VA union. What else in here is part of the evidence 00:43:07.210 --> 00:43:09.750 of First Amendment retaliation beyond those two? 00:43:13.269 --> 00:43:16.440 Prior to that, it states that the CSRA enables 00:43:16.440 --> 00:43:19.480 hostile federal unions to obstruct agency management. 00:43:20.380 --> 00:43:23.880 It also then... So you just think the word hostile, 00:43:24.840 --> 00:43:31.179 that's retaliation? Well, no. It's then explained 00:43:31.179 --> 00:43:33.460 what is the hostile action, and that's what's 00:43:33.460 --> 00:43:35.159 explained in the bullet points that I was referencing. 00:43:35.659 --> 00:43:39.159 After that, there's also the closing line that 00:43:39.159 --> 00:43:43.599 states outright that... Partnerships that unions 00:43:43.599 --> 00:43:45.880 will be tolerated if they are if they will work 00:43:45.880 --> 00:43:48.679 with the president and those will not will not 00:43:48.679 --> 00:43:52.420 be tolerated So that and that's also at the end 00:43:52.420 --> 00:43:54.940 of the fact sheet There are multiple provisions 00:43:54.940 --> 00:43:57.980 of the fact sheet that demonstrate the retaliatory 00:43:57.980 --> 00:44:04.239 animus and Let's just imagine those were taken 00:44:04.239 --> 00:44:08.440 out What would you still be arguing that there's 00:44:08.440 --> 00:44:10.800 First Amendment retaliation here I think that 00:44:10.800 --> 00:44:13.699 would be a different case. I think then it would 00:44:13.699 --> 00:44:16.619 be a circumstantial evidence case, rather than 00:44:16.619 --> 00:44:19.099 a direct evidence case, as we have here today 00:44:19.099 --> 00:44:22.280 with these fact sheet statements. And the First 00:44:22.280 --> 00:44:24.739 Amendment analysis may be different there. If 00:44:24.739 --> 00:44:28.460 there was an executive order that was issued, 00:44:29.719 --> 00:44:33.500 and if, you know, this Court has said in the, 00:44:33.500 --> 00:44:35.659 I think it's also the Arizona Students Association 00:44:35.659 --> 00:44:38.139 case, the First Amendment retaliation can be 00:44:38.139 --> 00:44:40.610 shown by both either circumstantial evidence 00:44:40.610 --> 00:44:45.880 or by direct evidence. So if you had the unprecedented 00:44:45.880 --> 00:44:48.760 size and scope and the extraordinary over -breath 00:44:48.760 --> 00:44:51.679 of the executive order. If you had the carve 00:44:51.679 --> 00:44:54.639 -ins and carve -outs, which raise questions as 00:44:54.639 --> 00:44:57.039 they did here, the law enforcement carve -in, 00:44:57.119 --> 00:45:00.199 the Bureau of Prisons then carve -out where AFG 00:45:00.199 --> 00:45:04.960 represents the bargaining unit employees, that 00:45:04.960 --> 00:45:07.159 could still raise a First Amendment retaliation 00:45:07.159 --> 00:45:09.599 question. It would not be the same case. This 00:45:09.599 --> 00:45:12.260 case is much stronger and more straightforward 00:45:12.260 --> 00:45:15.489 because we have direct evidence of what the motive 00:45:15.489 --> 00:45:18.469 was for this executive order, which was published 00:45:18.469 --> 00:45:20.590 in an official document put out by the White 00:45:20.590 --> 00:45:23.050 House. So council, let me jump in here. Let's 00:45:23.050 --> 00:45:26.690 assume I agree with everything you said so far. 00:45:26.909 --> 00:45:29.849 Okay. Every single word. What do we do with the 00:45:29.849 --> 00:45:33.690 fact that the district court did not address 00:45:33.690 --> 00:45:37.289 what I'll call the Mount healthy issue, which 00:45:37.289 --> 00:45:39.630 is that even if everything you said is true, 00:45:40.309 --> 00:45:42.929 the president may have just done this anyway. 00:45:43.679 --> 00:45:46.500 And if that's the case, what's your response 00:45:46.500 --> 00:45:48.659 to the fact that the district court didn't address 00:45:48.659 --> 00:45:52.539 that? Well, so the district court did say that 00:45:52.539 --> 00:45:55.139 after going through the fact sheet statements, 00:45:55.480 --> 00:45:59.380 it did say that the national security does not 00:45:59.380 --> 00:46:02.099 rebut that. I do want to point out what the posture 00:46:02.099 --> 00:46:04.460 was in the district court. The government did 00:46:04.460 --> 00:46:09.500 not put in any evidence that... support what 00:46:09.500 --> 00:46:13.760 is an affirmative defense, both under mouth healthy 00:46:13.760 --> 00:46:16.940 as well as this court's case law, that once a 00:46:16.940 --> 00:46:21.139 prima facie case of retaliation is shown that 00:46:21.139 --> 00:46:24.760 animus was the substantial motive, the burden 00:46:24.760 --> 00:46:27.940 shifts to the government to establish as an affirmative 00:46:27.940 --> 00:46:30.340 defense that they would have done the same thing 00:46:30.340 --> 00:46:32.519 anyway. We don't think that can be established 00:46:32.519 --> 00:46:35.019 here. And the district court did point out, it 00:46:35.019 --> 00:46:38.000 referenced the very piece of the fact sheet that 00:46:38.000 --> 00:46:40.380 I was pointing to as well, which is the closing 00:46:40.380 --> 00:46:42.739 words. And what the district court says is, what 00:46:42.739 --> 00:46:47.139 that says is that it condemns unions who are 00:46:47.139 --> 00:46:51.099 critical of the presidents and supports the unions 00:46:51.099 --> 00:46:53.900 who will toe the line. That's what shows that 00:46:53.900 --> 00:46:56.380 even if the government had attempted to make 00:46:56.380 --> 00:46:58.780 a showing before the district court, which it 00:46:58.780 --> 00:47:01.599 did not, that it would have taken the same action 00:47:01.599 --> 00:47:04.380 anyway, that negates any such showing. What the 00:47:04.380 --> 00:47:07.000 government argued in its day motion here is that 00:47:07.000 --> 00:47:09.420 the district court failed to consider its, quote, 00:47:09.699 --> 00:47:13.219 additional evidence. the government put in zero 00:47:13.219 --> 00:47:16.139 evidence at the preliminary injunction stage. 00:47:16.500 --> 00:47:19.880 So there is no error by the district court in 00:47:19.880 --> 00:47:22.500 not considering, quote, additional evidence. 00:47:22.739 --> 00:47:25.280 There was none before it. And the district court 00:47:25.280 --> 00:47:28.480 did look at, it went through the First Amendment 00:47:28.480 --> 00:47:32.159 retaliation elements, and then it also found 00:47:32.159 --> 00:47:35.639 that the national security statements did not 00:47:35.639 --> 00:47:39.090 rebut. the nexus that the government that the 00:47:39.090 --> 00:47:43.090 plaintiffs had shown that nexus between the adverse 00:47:43.090 --> 00:47:46.530 action taken and the first amendment speech and 00:47:46.530 --> 00:47:49.670 so it it properly applied this court's first 00:47:49.670 --> 00:47:52.170 amendment retaliation analysis but can you tell 00:47:52.170 --> 00:47:54.429 me again i don't want to harp on it too much 00:47:54.429 --> 00:47:56.929 but i'm looking at the district court's order 00:47:56.929 --> 00:47:59.929 i don't see the mount healthy standards cited 00:47:59.929 --> 00:48:04.550 did maybe i missed it um but i didn't see it 00:48:04.489 --> 00:48:07.389 And look, there may be reasons why the government 00:48:07.389 --> 00:48:09.610 certainly could have handled this better. I'm 00:48:09.610 --> 00:48:12.989 not arguing with you on that. But I didn't see 00:48:12.989 --> 00:48:20.840 the district court say what you just said. of 00:48:20.840 --> 00:48:23.920 the order, the invocation, so this is after going 00:48:23.920 --> 00:48:26.239 through the fact sheet statements and finding 00:48:26.239 --> 00:48:29.440 the invocation of the national security exception 00:48:29.440 --> 00:48:34.079 in section 7103B1 does not necessarily rebut 00:48:34.079 --> 00:48:38.320 this nexus as the government would have it. And 00:48:38.320 --> 00:48:42.019 so you think that's, but then it goes on to talk 00:48:42.019 --> 00:48:43.840 about second guessing national security termination. 00:48:43.980 --> 00:48:47.340 Okay, I mean, I see your point. And I'm not going 00:48:47.340 --> 00:48:48.880 to try to force you to concede something, but 00:48:48.880 --> 00:48:51.760 in response to my question, that's the best part 00:48:51.760 --> 00:48:54.539 we point to. Yeah, and I would point out that, 00:48:54.619 --> 00:48:57.400 yes, it starts with that, but then it goes on 00:48:57.400 --> 00:49:02.239 again and it discusses the additional, the scope 00:49:02.239 --> 00:49:04.539 of the executive order, the line drawing. So 00:49:04.539 --> 00:49:08.239 the district court was looking at all of that 00:49:08.239 --> 00:49:20.880 evidence and weighing it there. The final point 00:49:20.880 --> 00:49:25.340 I'll make on in my remaining time in terms of, 00:49:25.880 --> 00:49:29.400 I just wanted to say a word on irreparable harm. 00:49:31.139 --> 00:49:37.820 So the injunction here, return the agencies to 00:49:37.820 --> 00:49:41.239 the same labor relations framework that has been 00:49:41.239 --> 00:49:45.460 in place since 1978. It should be dispositive 00:49:45.460 --> 00:49:47.880 of the government's argument. that none of the 00:49:47.880 --> 00:49:50.719 declarations that they've proffered to this court, 00:49:50.780 --> 00:49:53.480 which was not proffered, again, during the preliminary 00:49:53.480 --> 00:49:58.159 injunction record, that does not cite a single 00:49:58.159 --> 00:50:00.500 example of something that has happened in the 00:50:00.500 --> 00:50:03.940 past 50 years where an agency's compliance with 00:50:03.940 --> 00:50:06.320 a collective bargaining agreement harmed national 00:50:06.320 --> 00:50:09.360 security. And there's an obvious reason for that, 00:50:09.400 --> 00:50:12.639 which is that the statute already provides substantial 00:50:12.639 --> 00:50:16.239 flexibility in this area, including an emergency 00:50:16.239 --> 00:50:19.519 exception that permits an agency to take whatever 00:50:19.519 --> 00:50:22.559 actions may be necessary to carry out the agency 00:50:22.559 --> 00:50:26.119 mission during emergencies. The statute also 00:50:26.119 --> 00:50:28.619 excludes altogether from the bargaining unit 00:50:28.619 --> 00:50:32.619 any employee whose work directly affects national 00:50:32.619 --> 00:50:36.000 security. The statute allows for the suspension 00:50:36.000 --> 00:50:39.460 of an employee when an agency head finds it necessary 00:50:39.460 --> 00:50:43.780 in the interests of national security. So the 00:50:43.780 --> 00:50:46.699 framework that the injunction put back in place 00:50:46.699 --> 00:50:50.480 and what agencies, the situation that the agencies 00:50:50.480 --> 00:50:53.380 are addressing. is engaging with labor unions, 00:50:53.599 --> 00:50:56.039 which Congress found are in the public interest, 00:50:56.599 --> 00:51:00.119 about workplace matters in non -emergency situations 00:51:00.119 --> 00:51:03.199 on behalf of non -national security employees. 00:51:03.420 --> 00:51:06.260 That's the status quo that the preliminary injunction 00:51:06.260 --> 00:51:10.400 put in place. And the allegations of harm... 00:51:10.400 --> 00:51:14.099 Wait, so you say it puts back in place the status 00:51:14.099 --> 00:51:17.619 quo of dealing with non -national security employees, 00:51:17.760 --> 00:51:20.219 which means we're making that determination? 00:51:20.639 --> 00:51:24.940 as opposed to the president? No, I'm sorry. So 00:51:24.940 --> 00:51:28.300 what the statute provides is when a labor organization 00:51:28.300 --> 00:51:32.500 is certified as exclusive rep in the first place, 00:51:33.420 --> 00:51:37.139 the bargaining unit, so the employees who... 00:51:37.119 --> 00:51:39.659 had collective bargaining rights and who then 00:51:39.659 --> 00:51:42.360 lost them under the executive order. There had 00:51:42.360 --> 00:51:46.079 already been the determination made that their 00:51:46.079 --> 00:51:48.360 work does not directly impact national security 00:51:48.360 --> 00:51:50.079 because they could not be part of the bargaining 00:51:50.079 --> 00:51:54.900 unit if that were the case. The situation is 00:51:54.900 --> 00:51:58.380 not static. You keep referring to 1978. Everything 00:51:58.380 --> 00:52:01.500 in the world is different, things are changing. 00:52:02.119 --> 00:52:05.000 I'm not sure how powerful it is to argue that, 00:52:05.139 --> 00:52:07.699 oh, this is a status quo for 50 years because 00:52:07.699 --> 00:52:12.239 statute in its provisions recognizes that the 00:52:12.239 --> 00:52:14.679 national security situation changes and the president 00:52:14.679 --> 00:52:18.579 needs to have the ability to react quickly and 00:52:18.579 --> 00:52:22.400 issue executive orders to do so. So why is what 00:52:22.400 --> 00:52:25.260 was happening in 1978 or when President Carter 00:52:25.260 --> 00:52:27.760 issued an executive order exempting various agencies, 00:52:27.820 --> 00:52:29.659 why is that relevant to what's happening now? 00:52:29.920 --> 00:52:33.320 What's relevant is that it has existed for 50 00:52:33.320 --> 00:52:36.719 years. So it was what was in place in 2024, 2023, 00:52:37.019 --> 00:52:41.159 2022, and prior to that. My point is that in 00:52:41.159 --> 00:52:45.780 terms of the allegations of irreparable harm 00:52:45.780 --> 00:52:47.960 that the declarations that the government relies 00:52:47.960 --> 00:52:51.059 on here and that they've proffered here, the 00:52:51.059 --> 00:52:53.599 assertions that are made in those declarations 00:52:53.599 --> 00:52:57.639 are the hypothetical scenarios that are put forth 00:52:57.639 --> 00:53:02.039 in there are ones that the statute already provides 00:53:02.039 --> 00:53:05.539 for. And there's no explanation provided or even 00:53:05.539 --> 00:53:08.920 any accounting in those declarations that there 00:53:08.920 --> 00:53:12.079 are these other statutory mechanisms which would 00:53:12.079 --> 00:53:14.380 still exist under the preliminary injunction. 00:53:16.619 --> 00:53:19.219 Can I just ask a logistic question? You mentioned 00:53:19.219 --> 00:53:23.099 the briefing schedule. When will the briefing 00:53:23.099 --> 00:53:27.349 be complete? Not on the emergency motion, but 00:53:27.349 --> 00:53:31.449 on the actual PI. The government's brief is due 00:53:31.449 --> 00:53:36.429 a week from Friday. And then our brief, I should 00:53:36.429 --> 00:53:38.630 know the exact date. I believe it's 30 days after 00:53:38.630 --> 00:53:41.789 that. And what's happening in the district court? 00:53:42.199 --> 00:53:45.539 So the district court was scheduled to be having 00:53:45.539 --> 00:53:48.960 the initial case management conference. While 00:53:48.960 --> 00:53:51.440 we're here talking right now, the district court 00:53:51.440 --> 00:53:54.260 took that off the calendar as a result of the 00:53:54.260 --> 00:53:56.760 appellate proceedings. But the party submitted 00:53:56.760 --> 00:54:00.400 their joint case management statement last week 00:54:00.400 --> 00:54:03.780 in advance of what was to be the case management 00:54:03.780 --> 00:54:06.900 conference today. That schedule provides for 00:54:06.900 --> 00:54:10.000 summary judgment briefing beginning, I believe, 00:54:10.159 --> 00:54:14.559 in August. Is there a discovery that's contemplated? 00:54:15.539 --> 00:54:18.059 As of right now, there's no discovery that's 00:54:18.059 --> 00:54:21.300 been proposed. The parties haven't engaged, haven't 00:54:21.300 --> 00:54:24.360 exchanged initial disclosures yet. And what the 00:54:24.360 --> 00:54:27.920 joint case management statement provided is that, 00:54:27.920 --> 00:54:31.280 depending on what witnesses may or may not be 00:54:31.280 --> 00:54:33.460 identified by the government in their initial 00:54:33.460 --> 00:54:35.960 disclosures, but as of right now, there's no 00:54:35.960 --> 00:54:38.239 plan for, there's no contemplated discovery. 00:54:38.619 --> 00:54:40.639 So is the summary judgment? just going to be 00:54:40.639 --> 00:54:43.219 essentially a redo of you know what we've already 00:54:43.219 --> 00:54:46.320 seen on the on the PI it's the same record it's 00:54:46.320 --> 00:54:49.400 going to be the same issues. The record may have 00:54:49.400 --> 00:54:52.159 because things continue to be happening at agencies 00:54:52.159 --> 00:54:54.019 though there may be I think there will be additional 00:54:54.019 --> 00:54:57.659 evidence that's put into the record but there 00:54:57.659 --> 00:54:59.820 are additional claims that the plaintiffs had 00:54:59.820 --> 00:55:02.019 which the district court did not address in the 00:55:02.019 --> 00:55:05.420 preliminary injunction motion. So the the additional 00:55:05.420 --> 00:55:08.329 claims would include that This was essentially 00:55:08.329 --> 00:55:11.190 beyond the statutory power because it was too 00:55:11.190 --> 00:55:15.010 broad The basis isn't that it's too broad, but 00:55:15.010 --> 00:55:16.809 that is what it is not the only basis But yes, 00:55:16.869 --> 00:55:19.309 there is an ultra various claim that the plaintiffs 00:55:19.309 --> 00:55:21.849 raised have raised in this case Which was not 00:55:21.849 --> 00:55:24.070 addressed in the preliminary injunction opinion. 00:55:24.170 --> 00:55:27.210 What are the other claims? So there's ultra Vera's 00:55:27.210 --> 00:55:29.380 there's First Amendment. What else? There's a 00:55:29.380 --> 00:55:32.340 fifth amendment claim as well relating to the 00:55:32.340 --> 00:55:35.360 abrogation of contracts, as well as a fifth amendment 00:55:35.360 --> 00:55:39.219 procedural due process claim, which were part 00:55:39.219 --> 00:55:40.820 of the preliminary injunction motion, but were 00:55:40.820 --> 00:55:44.519 not reached by the district court. The district 00:55:44.519 --> 00:55:46.159 court described the first amendment claim as 00:55:46.159 --> 00:55:49.340 the strongest issue for the plaintiffs. We're 00:55:49.340 --> 00:55:50.960 calling the order correctly. District Court did 00:55:50.960 --> 00:55:53.800 say that. I should add as well, we had two First 00:55:53.800 --> 00:55:55.840 Amendment claims, First Amendment retaliation, 00:55:55.980 --> 00:55:58.239 as well as First Amendment viewpoint discrimination, 00:55:58.260 --> 00:56:00.579 and the District Court did not reach the second 00:56:00.579 --> 00:56:03.599 First Amendment, the second part of the First 00:56:03.599 --> 00:56:09.699 Amendment claim. Anything else from my colleagues? 00:56:10.760 --> 00:56:12.860 No, Your Honor, and I see I'm over time as well. 00:56:12.920 --> 00:56:16.139 Thank you. Thank you very much. All right, Council 00:56:16.139 --> 00:56:20.780 for the Government. Thank you, Your Honor. I 00:56:20.780 --> 00:56:22.739 want to start just briefly with jurisdiction. 00:56:23.420 --> 00:56:26.159 This is clearly a situation where Congress intended 00:56:26.159 --> 00:56:29.639 the FLRA to hear these claims. The FLRA has authority 00:56:29.639 --> 00:56:32.019 to hear any claim that an agency has violated 00:56:32.019 --> 00:56:39.900 the FSL MRS. That's in 5 USC 7105 and 5 USC 7116, 00:56:39.900 --> 00:56:44.829 AA8. This is clearly such a claim. Plaintiffs 00:56:44.829 --> 00:56:46.510 are saying that the government has to comply 00:56:46.510 --> 00:56:49.090 with these collective bargaining agreements and 00:56:49.090 --> 00:56:55.849 the government is saying that it doesn't. We 00:56:55.849 --> 00:56:58.849 should also mention that all of the relief that 00:56:58.849 --> 00:57:03.429 plaintiffs are asking for here can be received 00:57:03.429 --> 00:57:06.409 from the FLRA after this litigation proceeds 00:57:06.409 --> 00:57:10.489 or from a court. I wanna go back to the First 00:57:10.489 --> 00:57:14.010 Amendment claim. Plaintiffs do, plaintiffs attempt 00:57:14.010 --> 00:57:17.190 to read and add words to the district court's 00:57:17.190 --> 00:57:20.789 order that I don't think are there. The district 00:57:20.789 --> 00:57:22.429 court did not cite the non -healthy standard 00:57:22.429 --> 00:57:25.610 despite us raising this in our brief in, which 00:57:25.610 --> 00:57:28.130 is a brief in opposition to their temporary restraining 00:57:28.130 --> 00:57:30.210 order because the procedural posture of this 00:57:30.210 --> 00:57:31.710 case is that the district court turned that into 00:57:31.710 --> 00:57:35.789 a preliminary injunction. And the district court 00:57:35.789 --> 00:57:38.250 and the plaintiffs cannot ask this court to add 00:57:38.250 --> 00:57:41.429 on that reasoning. That just is simply not there. 00:57:41.510 --> 00:57:43.030 They didn't mention that in their brief solo 00:57:43.030 --> 00:57:45.309 now. They say that the word rebut somewhere in 00:57:45.309 --> 00:57:48.489 the opinion mentions that, but I just don't think 00:57:48.489 --> 00:57:53.050 that's the case. And regardless, even if the 00:57:53.050 --> 00:57:56.570 district court had appropriately considered whether 00:57:56.570 --> 00:58:00.170 there was evidence to rebut, whether the government 00:58:00.170 --> 00:58:03.619 would have adopted the executive order anyways, 00:58:04.860 --> 00:58:08.559 that doesn't really matter here because the government 00:58:08.559 --> 00:58:11.059 had clearly facially legitimate reasons for adopting 00:58:11.059 --> 00:58:13.179 the order. Judge Beatty, you were mentioning 00:58:13.179 --> 00:58:17.099 that the executive order is really new facially 00:58:17.099 --> 00:58:19.420 neutral. It's just a fact sheet that was published 00:58:19.420 --> 00:58:23.219 by the White House press office that included 00:58:23.219 --> 00:58:26.059 the statements plaintiffs are mentioning. Now, 00:58:26.179 --> 00:58:29.650 we think that press office statement is actually 00:58:29.650 --> 00:58:32.889 helpful to explaining some of the reasons for 00:58:32.889 --> 00:58:35.710 the agencies being included here. However, that's 00:58:35.710 --> 00:58:37.809 not something that plaintiffs have really even 00:58:37.809 --> 00:58:42.389 alleged the president ever saw. And we, so we 00:58:42.389 --> 00:58:45.269 think that's clearly extrinsic, extrinsic evidence 00:58:45.269 --> 00:58:49.230 here. It is not direct, the plaintiffs said over 00:58:49.230 --> 00:58:51.329 and over again that this, they had direct evidence 00:58:51.329 --> 00:58:53.550 here. We don't think that's the case at all, 00:58:53.710 --> 00:58:56.860 given that. the executive order itself is facially 00:58:56.860 --> 00:59:00.800 neutral. And the basis of the First Amendment 00:59:00.800 --> 00:59:03.519 retaliation claim appears to just be what was 00:59:03.519 --> 00:59:06.780 in the fact sheet, which is not contained within 00:59:06.780 --> 00:59:10.719 the executive order. How about on the face of 00:59:10.719 --> 00:59:14.659 the fact sheet? The other side points to some 00:59:14.659 --> 00:59:17.860 statements, hostile federal unions and fighting 00:59:17.860 --> 00:59:21.900 back, and the last bullet points and a few other 00:59:21.900 --> 00:59:25.760 points. Yes, Your Honor, we think the President 00:59:25.760 --> 00:59:30.639 can appropriately consider such things when determining 00:59:30.639 --> 00:59:34.260 whether agencies should be exempted from the 00:59:34.260 --> 00:59:36.940 FSL MRS requirements. And the reason for that 00:59:36.940 --> 00:59:39.800 is simply that the President has the ability, 00:59:40.019 --> 00:59:44.139 as the Commander -in -Chief, to determine whether 00:59:44.139 --> 00:59:48.880 his plans to try to make national security involved 00:59:48.880 --> 00:59:52.519 agencies more efficient and more responsive and 00:59:52.519 --> 00:59:55.780 better able to plan for national security emergencies 00:59:55.780 --> 00:59:59.539 in the future, we think that the president has 00:59:59.539 --> 01:00:04.000 the ability to consider what plaintiffs can complain 01:00:04.000 --> 01:00:08.400 about, even though those things may involve some 01:00:08.400 --> 01:00:10.699 First Amendment protected activity. We think 01:00:10.699 --> 01:00:13.699 this is a context, like Nieves and Boquist, where 01:00:13.699 --> 01:00:18.440 there is legitimate consideration of whether 01:00:19.630 --> 01:00:23.190 whether a particular union activity and complying 01:00:23.190 --> 01:00:27.110 with the FSLR MRS requirements would impede the 01:00:27.110 --> 01:00:29.090 president's, would impede the president's policy 01:00:29.090 --> 01:00:31.090 agenda. Well, Council, let me jump in on that 01:00:31.090 --> 01:00:33.730 because I'm, this is where I get a little bit 01:00:33.730 --> 01:00:35.110 concerned about the government's position in 01:00:35.110 --> 01:00:38.369 this case. So if a president says, I'm the national 01:00:38.369 --> 01:00:40.809 security president, so therefore if you don't 01:00:40.809 --> 01:00:42.710 like me, you're against national security, so 01:00:42.710 --> 01:00:44.369 I'm going to cancel any contracts if you don't 01:00:44.369 --> 01:00:46.110 like me because I'm the national security guy. 01:00:46.789 --> 01:00:48.250 Is that what you're saying he could do that? 01:00:49.619 --> 01:00:52.659 Your honor, what the government is saying here 01:00:52.659 --> 01:00:55.280 is that if the president has a facially legitimate 01:00:55.280 --> 01:00:59.420 reason for excluding certain agencies here, which 01:00:59.420 --> 01:01:04.000 we think is very clear from the fact sheet, that 01:01:04.000 --> 01:01:08.059 that is sufficient to defeat a First Amendment 01:01:08.059 --> 01:01:12.400 retaliation claim. We're not going further than 01:01:12.400 --> 01:01:15.559 that in saying that the president can just exclude 01:01:15.559 --> 01:01:17.840 whatever he wants. There would be some limited 01:01:17.840 --> 01:01:21.579 judicial review And we just think it would be 01:01:21.579 --> 01:01:23.360 governed by the Trump versus Hawaii standard, 01:01:23.400 --> 01:01:27.420 where you would look at whether there was a legitimate 01:01:27.420 --> 01:01:38.480 interest involved. Your Honor, the district court's 01:01:38.480 --> 01:01:42.679 order has caused irreparable harm to the government. 01:01:43.539 --> 01:01:49.579 There were some questions about whether some 01:01:49.579 --> 01:01:52.099 of the declarations were properly submitted. 01:01:52.340 --> 01:01:54.840 We think they were because we were trying to 01:01:54.840 --> 01:01:57.980 show that there was a stay, a stay was necessary 01:01:57.980 --> 01:02:02.179 from the district court. But regardless, the 01:02:02.179 --> 01:02:05.119 government did not need to present its own evidence 01:02:05.119 --> 01:02:08.429 in district court. to on that fourth prong of 01:02:08.429 --> 01:02:12.449 the retaliation test under Mount Healthy. The 01:02:12.449 --> 01:02:15.909 government relied in docket 44 at around pages 01:02:15.909 --> 01:02:21.420 33 to 35. The government relied on... relied 01:02:21.420 --> 01:02:23.880 on evidence that was in plaintiff's own record 01:02:23.880 --> 01:02:27.320 to robot that, including the fact sheet, including 01:02:27.320 --> 01:02:29.219 that many of the collective bargaining agreements 01:02:29.219 --> 01:02:31.840 had been renegotiated in the prior administration 01:02:31.840 --> 01:02:35.260 to try to disrupt the current administration's 01:02:35.260 --> 01:02:41.000 policies. And then at SA 60, which is in plaintiff's 01:02:41.000 --> 01:02:45.789 supplemental appendix. They mentioned that we 01:02:45.789 --> 01:02:48.449 never mentioned any time in the last 50 years 01:02:48.449 --> 01:02:54.010 that the president's national security has been 01:02:54.010 --> 01:03:00.280 hampered by this, by bargaining. There's a good 01:03:00.280 --> 01:03:05.019 example on SA60 about ICE not being able to modify 01:03:05.019 --> 01:03:08.059 its cybersecurity policies without bargaining. 01:03:08.559 --> 01:03:10.739 It couldn't exclude Gmail or web -based mail 01:03:10.739 --> 01:03:14.400 services, even though those were compromising 01:03:14.400 --> 01:03:17.480 security. We think the district court's order 01:03:17.480 --> 01:03:19.460 is a significant intrusion on the president's 01:03:19.460 --> 01:03:21.099 national security prerogatives and should be 01:03:21.099 --> 01:03:25.900 stayed pending appeal. And with that, the government 01:03:25.900 --> 01:03:28.960 rests. Any other questions for my colleagues? 01:03:30.760 --> 01:03:33.460 All right, seeing none, I want to thank both 01:03:33.460 --> 01:03:36.539 of you for your advocacy in this case and the 01:03:36.539 --> 01:03:38.880 excellent briefing and we appreciate the very 01:03:38.880 --> 01:03:43.159 quick turnaround around July 4th. Sometimes we 01:03:43.159 --> 01:03:44.900 all got to do that and I want to appreciate that 01:03:44.900 --> 01:03:47.780 your prompt attention in this matter. For that, 01:03:48.019 --> 01:03:50.099 I guess that last thing I'll say is this matter 01:03:50.099 --> 01:03:53.159 is now adjourned, submitted, and we will go into 01:03:53.159 --> 01:03:54.139 conference. Thank you.