Terrific. Well, we have argument today in this
matter. You'll see on the clock, we put 30 minutes
per side. We want to give each side plenty of
time to make their points. But I'm going to say
what I always say when I preside. There is no
extra credit or bonus points for using every
second on the clock in the Ninth Circuit. So
if you have made your points and you're not getting
any questions back, there's nothing wrong with
I guess sitting down or whatever we do on these
virtual things. It's okay to be done, is what
I'm saying. There's nothing wrong with that.
And I think 30 minutes is ample time for this
matter. And with that, I believe Mr. Becker,
are we hearing from you first? Yes, your honor.
All right, you may proceed when ready. Good morning,
your honors, and may it please the court. Tyler
Becker from the Department of Justice on behalf
of all appellants. I would like to reserve five
minutes for rebut. Very well. When Congress enacted
the FSL MRS authorizing collective bargaining
by federal employees, it recognized that national
security may require agencies to be excluded
from the statute's requirements. Thus, in section
7103, B1, Congress explicitly authorized the
president to exclude agencies and subdivisions
if the president determines that national security
so requires. Pursuant to this authority, President
Trump adopted Executive Order 14251, and excluded
agencies including the State Department, Department
of Defense, and Immigrations and Customs Enforcement
from bargaining. The district court below preliminary
enjoined the executive orders enforcement despite
the president's facially legitimate order adopted
pursuant to clear statutory authority in the
national security context, a context where courts
are supposed to give great deference to presidential
determinations. The district court did so after
finding plaintiffs had raised only a serious
question on the merits that the order was adopted
in retaliation for federal unions First Amendment
activities. Yet the district court failed to
address a key element of First Amendment retaliation
claims, an error that even plaintiffs do not
defend. And the district court should not have
exercised jurisdiction at all given the FSL MRS's
comprehensive scheme for labor disputes that
requires bringing claims like plaintiffs in the
FLRA with review in a court of appeals, not a
district court. Can I ask you, on the jurisdictional
issue, was that same issue raised in the D .C.
Circuit that had two somewhat similar cases as
this one? I guess, Your Honor, it is the same
issue. Okay. And did the D .C. Circuit, doesn't
seem, they addressed that then? They just, that
court concluded essentially that it had jurisdiction?
No, the D .C. Circuit did not address the issue.
I think that in this context where you're trying
to determine likelihood of success on the merits,
the DC Circuit may have thought and we think
is appropriate, if so inclined, that you can
just consider whether plaintiffs are likely to
succeed on the merits or plaintiffs are likely
to succeed or not on their jurisdictional claim.
So we're okay with not addressing if you would
prefer not to, but I think you have discretion
to do either. Well, yeah, I mean, usually when
something is jurisdictional, we don't have discretion
to avoid that. We have to decide whether we have
jurisdiction. But it just seemed interesting
to me that the DC circuit, I guess, did not address
that. Yeah, Your Honor, the government agrees
that it is an interesting question, and I know
there's not a Supreme Court precedent clearly
on point in this. You know, you're thinking more
about Steele Co., and usually you would have
to address jurisdiction. But we think, especially
in the state posture, we think you can address
either the merits or jurisdiction. And either
way, we don't think plaintiffs are likely to
succeed here, and the government is likely to
succeed on getting the district court's preliminary
injunction stayed. OK. Can I ask then on the
statute, would it be the government's position
that once the president makes this determination,
as he has here, there essentially could not be
a retaliation claim? Do you believe there could
be in the face of the president making the determination
that the statute gives to him? Your Honor, the
government does not believe that the retaliation
claim would succeed here. It's very different.
We think that plaintiffs could have a retaliation
claim in this context, but it just doesn't exist
here. We think this is governed by the Trump
versus Hawaii case. And in that case, you have
a situation where there may be one reason. that
the policy was adopted perhaps for one reason
that involved animus, but had other reasons as
well, other facially legitimate reasons. And
we think in that context, it's the same like
this context that there would not be a retaliation
claim or retaliation claim would not succeed.
Now, could you bring one if there was direct
evidence of animus? I think Trump versus Hawaii
leaves that open, but it would be a very limited
type of judicial review in the national security
context. If I could just jump in, I want to follow
up on Judge Bress' questions about the DC Circuit.
The DC Circuit focused on the injury issue. And
I was wondering if you could just update us kind
of where we are in this case in terms of Are
the CBAs, have they been rescinded? Are they
still in effect? Because I know there was some,
at least confusion on my part, about whether
anything had actually happened to rescind these
CBAs or to cancel them. Or are they actually
still in place? Or are some of them being canceled?
Where are we? Your Honor, the only agency that
has canceled CBAs at this point is the State
Department. They canceled them before the OPM
guidance was issued on April 7th, directing agencies
to not cancel CBAs as litigation proceeded. There
was an issue in district court. It was a record
issue about one division of one agency that had
canceled a CBA before that OPM guidance issued,
but then they... um put the cba back in place
and it remains in place today and no other agencies
have have canceled cbas thank you well doesn't
that put you in a um and sort of an interesting
position that if you argue that uh the injunction
causes the government irreparable harm but at
the same time argue that it doesn't cause the
plaintiff's irreparable harm because the cbas
have not been canceled and it seems that everything
status quo. So, how is the government harmed?
Well, Your Honor, the CBAs have not been canceled,
however, besides from the State Department. However,
the government does not want to have to comply
with every provision of the CBA while the CBAs,
while this litigation proceeds. The government
would like to be able to, for example, in the
case of In the case of ICE, there's been an issue
where ICE would like to be able to have 24 -hour
legal support to agents on the ground, and they
would have to go through midterm bargaining to
be able to do that. Now, ICE has also said they
don't really think that is covered by the CBA,
et cetera, but the government has many things
that it would like to be able to do that it was
not able to do with this. with the preliminary
injunction in place. So another issue with determining
whether there's a reparable harm is that you
didn't submit any declarations to the district
court. And there are many, there are several
that are attached with your motion here, but
can we consider those in the context of the Nikin
factors? Your honor, we think that you can. We
did submit those declarations to the district
court when we moved for a stay to describe what
harm was actually being caused by the district
court's preliminary injunction. I mean, we submitted
those same declarations here. Additionally, We
don't even know that you need to go there because
the district court's order clearly causes irreparable
harm to the government, to the president's ability
to make a national determination, a statutorily
authorized determination in the national security
context. This is like a Youngstown. This is in
Youngstown, the kind of highest level of authority
the president has, where Congress has specifically
authorized such a determination, and the president
has made it. So we think the president, there's
immense harm just to the president's national
security prerogatives generally here. And the
D .C. Circuit agreed in the NTU case, and you
mentioned the NTU case. Just yesterday, the D
.C. Circuit denied rehearing en banc. in that
case, that was decided on irreparable harm as
well. This report seemed to be bothered by some
statements in the fact sheet. So why don't you
address those in terms of why you think they
don't amount to unlawful retaliation? Yes, your
honor. So the statements in the fact sheet the
government believes actually get at determinations
the statute allows the president to make. Even
though they may be related to First Amendment
activity, the president has a mandate and the
president believes he can go through and try
to reform the federal government and reform agencies,
including agencies like the State Department
that engage in national security work. The president,
in the fact sheet, was describing those reasons
that the statute actually requires him to make.
This is like in Yeve's, this court's decision
in Boquist. This is a determination that, in
a context, that First Amendment activity and
speech is going to be part of any determination.
And we think that's okay. Now, even if you disagree
with us on that, we think under Trump versus
Hawaii, even if there was one impermissible retaliatory
reason for an action, we think that where there's
another facially legitimate reason or other facially
legitimate reasons, which we think clearly there
are here, the court would still have to say the
district court's injunction. The district court
took issue with the scope of the executive order,
commenting that it's much broader than the executive
orders that were issued by prior administrations
and covers entire cabinet level departments.
Are there any limits on the scope of the president's
authority under the statute to exclude parts
of the government from collective bargaining
and these labor provisions? Could the president
theoretically exclude the entire federal workforce?
Your honor, I'm not prepared to offer today any
limitations on the president's authority in this
context. And that's not really at all what has
happened here. I mean, the president, if you
look at the fact sheet that plaintiffs want to
rely on, it goes through specific of reasons
that each of these agencies is engaged in national
security work. And we think that it's, we think
that courts engaging in determinations on an
agency by agency, subdivision by subdivision
level about what agencies are engaged in national
security is something we don't really think that
district courts should be doing. For example,
the district court here cited the National Institute
of Allergy and Infectious Diseases. Under the
district court's reasoning, An agency that is
trying to prevent a future COVID -19 pandemic
and is engaged in work trying to prevent bioterrorism,
it would simply be overbroad to include such
an agency under the district court's reasoning.
And under Trump versus Hawaii, overbreath in
this context, in the First Amendment context,
is not a reason that you would, because of the
deference owed to the president's national security
determinations, it's not a reason that you would.
um quite want to question the president's authority
here or that we think the court the district
have authority to do so at all well i understand
that the president did not do what i'm suggesting
here that's a hypothetical but what i'm getting
at is are there any limits are there any handles
that we can put on this i mean it's the government
does the government can see that there could
be limits that um something that was so broad
as such as what i described would not fit within
the president's authority under the statute Your
honor, the president has to make determinations
under the statute that agencies are engaged in,
have a primary purpose of national security,
counterintelligence, intelligence, or investigative
work, and that applying the provisions of the
statute would impair national security. We think
that if the president makes those determinations,
they're unreviewable beyond that. I'm sorry,
go ahead. We think this follows from the D .C.
Circuit's AFGE versus Reagan decision from 1989,
where the court said the president made those
required determinations and that was it. So your
friend on the other side has argued in their
response that Trump versus Hawaii doesn't apply
because that was in the context of admitting
persons into the United States versus domestic
issues. It was in that context, that's correct.
Is that a distinction we can or should draw to
limit national security concerns to foreign matters
or persons entering the country? We don't think
so, Your Honor. And for this reason, we think
that the way the court reasoned in that case
is that, yes, it involved admitting foreign nationals,
but it also was the national security concerns
with doing so that were animating that decision.
And we think that the Supreme Court's decision
is broader. And regardless, even if you disagreed
with us on that, We also raised that under the
typical First Amendment retaliation standard,
there would be sufficient significant deference
owed to the president in this context. We think
that's the Webster versus Doe case, but also
AFG versus Reagan, and that there would still
be a significant deference to the president.
The district court did not respect that deference
at all and in fact forgot an entire. A part of
the first amendment standard which in the retaliation
context involves whether asking after plaintiffs
have pled their prima facie case whether The
government would have instituted the same policy
regardless of the retaliatory alleged retaliatory
intent Ask a little bit different question the
district court here relied on the serious questions
aspect, framing of our preliminary injunction
tests. Does the government have a position on
whether that test is consistent with the winter
factors? Your honor, the government does not
believe that test is consistent with the winter
factors. However, under this court's precedent,
we do think that the panel has to consider the
district court's order using that standard. However,
the district court's order, it mentions that
in order to apply serious questions under the
Alliance for Wild Rockies versus Cottrell case,
that you The equities then have to sharply tip
in the favor of plaintiffs. I mean, we just don't
think that that happened here at all. But yes,
the government would like to preserve for further
review that the serious questions doctorate is
inconsistent with the winter factors. And we
raised this issue in the district court as well.
But the district court told us that this was
a long standing night circuit. rule and proceeded
to apply the standard in this context. And we
don't even think under, as I mentioned, we don't
even think under the actually Ninth Circuit precedent,
given that the equities don't sharply tip in
favor of plaintiffs here, especially given the
district court's order really impeding on the
president's national security prerogatives. So,
yeah, recognizing we're bound by Alliance for
the Wild Rockies, what is the government's reason
for why the serious questions test is inconsistent
with winter? Your honor, the reason is that you
have to show a likelihood of success on the merits,
and you have to show under the Supreme Court's
recent precedents, including the Starbucks case
last term, you have to make a showing on each
of those factors. And the Ninth Circuit has specifically
said in a case we signed in our brief, another
alliance for Wild Rocky's case that in 2017,
that the likelihood of success, the serious questions
doctrine is a lower standard than likelihood
of success. And frankly, under Supreme Court
precedent, that is, and very clearly decided
in the Starbucks case last term, that is not
sufficient. That is not sufficient to show a
likelihood of success, especially when the court
has recognized that it's actually a lower standard.
Your Honor, if I may, I want to talk a little
bit about the jurisdictional question here. We
think that the district court did not have jurisdiction,
and we've talked a little bit about that. We
think the Thunderbasin factors, and especially
the Supreme Court's Elgin decision, clearly mean
that the district court did not have jurisdiction
here. There are many ways plaintiffs could have
raised these claims inside the FLRA. They could
have filed a charge with the FLRA, whose general
counsel would then have to investigate the charge.
They could have filed a grievance with an arbitrator.
And even though we've advocated staying some
of those arbitrations or holding them in abeyance,
we're still complying with them and showing up
with them at this point. We also, the plaintiffs
could have also raised opposed dismissal in one
of the pending FLRA matters involving these particular
agencies. There's, the Thunder Basin factors
require due to show that in order for a district
court to have jurisdiction, plaintiffs would
have to show that not giving the district court
jurisdiction would foreclose all meaningful judicial
review. The suit would be wholly collateral to
the statute's review provisions, and the claims
would have to fall outside the agency's expertise.
We think on each of those prongs, plaintiffs
have not made such a showing. And ultimately
everything here in this case can be remedied
at the end by the FLRA. So we're not, so we just
don't think that there was jurisdiction at all
under the thunder basin factors. And plaintiffs
don't even really mention or make this argument,
but a lot of times a plaintiffs make an argument
that. oh, the FLRA or some agency couldn't really
consider constitutional questions like we're
considering here, but the FLRA considers constitutional
questions all the time and does so in the context
of reviewing arbitration awards for compliance
with law. In our reply brief at page six, we
discussed that. In the FLRA proceedings involving
the Supreme Court's recent Ohio adjudicant general
case involving the Ohio National Guard, the FLRA
had to consider the militia clause and whether
that applied. So we think this is clearly within
the agency's expertise, even on the constitutional
questions. And ultimately plaintiff's claims
are really statutory questions about whether
the government has to comply or is appropriately
complying with the collective bargaining agreements
at issue here. What about the fact that some
agencies file lawsuits basically seeking declaratory
judgments in federal court? Your honor, those
lawsuits, we think, are fundamentally different
from what could not have really been brought
in the FLRA. But regardless, that has nothing
to do with this court's jurisdiction. Those lawsuits,
that would require us to assume that those lawsuits
are going to succeed. There's currently pending
motions to dismiss in the case in Texas that
plaintiff cite. And we think that the district
court said, oh, it might be unfair if the plaintiffs
couldn't bring something in the FLRA as a result,
but the government thought it could. But that
has nothing to do with jurisdiction. And we think
those two things have to be considered separately.
Why doesn't it have to do with jurisdiction?
I mean, doesn't it seem like the government obviously
takes the position that there is jurisdiction
in the Texas case, but there's not here? What
else does it go to other than jurisdiction? This
is more a policy choice that Congress has made.
If you look at the Elgin case, Congress has made
the policy determination that plaintiffs have
to bring their claims inside of the FLRA and
work that out to a court of appeals. And we just,
we don't think that it matters whether the government
can bring a district court suit at all. I mean,
we think that's more of a policy argument about
what should happen, then like if the government,
whether it's fair to plaintiffs, then whether
it actually, then it actually goes to jurisdiction.
So yes, it relates to jurisdiction, but in terms
of whether you, whether it's more of a policy,
a policy thing, not something else. If the government
had filed this same case that we're talking about,
if the government was the plaintiff and filed
the declare. judgment against the union, your
position would be there's jurisdiction over that.
Your honor, the case would be a little bit different
because we would be asking for a declaratory
judgment that we could cancel the CBAs. The government,
we think, has the ability to file such actions
to avoid all the problems that would be caused
by canceling the CBAs. I mean, there's a lot
of reasons the government hasn't canceled the
vast majority of CBAs here, just because that
would cause a lot of remedial problems, potentially
subjecting the government to significant amounts
the damages, etc, etc. Well, Mr. Becker, if you
don't have any other points to make and we don't
have any questions, don't you want to save around
five minutes with seven and a half work? Uh,
that works. That works for the government, your
honor. Okay, very well. Good morning, your honors,
may it please the court, Ramya Ravindran on behalf
of the APA Lees. This case involves a challenge
to an executive order that eliminated statutory
labor law protections and collective bargaining
rights for approximately two thirds of the federal
workforce. As the district court found in its
preliminary injunction order, this executive
order is unprecedented in size and scope from
prior exclusion orders under 7103B, and that
overbreath is combined with some peculiar line
drawing that resulted in bargaining rights for
some employees at an agency while maintaining,
eliminating bargaining rights for some employees
at an agency while maintaining them for other
employees who work at those very same agencies.
The rationale for this order was explained in
a fact sheet that was published by the White
House along with the executive order, which stated
that it was targeted at federal unions who had
engaged in speech and petitioning activity critical
of the president's agenda. Based on the unprecedented
scope of the order, the rationale that was set
forth in the fact sheet and uncontested factual
submissions, demonstrating irreparable harm suffered
by the plaintiffs and their members, the district
court granted plaintiffs in motion for preliminary
injunction. That injunction would maintain the
status quo labor relations framework that has
existed since 1978 and that the defendant agencies
here have been operating under since 1978 pending
resolution of the government's appeal of the
P .I., which is proceeding on an expeditious
schedule opening briefs are due next week. The
defendant's stay motion does not demonstrate
error in the district court's analysis, nor did
their newly submitted declarations establish
the type of irreparable harm that would warrant
a stay pending appeal of the PI. Since jurisdiction
was brought up at the end, but because it is
jurisdiction, I will start with that. The government's
jurisdictional argument was correctly rejected
by the district court as it was also rejected
by the district court in D .C. in the NTEU case
that Judge Bress referenced. The government's
argument here is that even though the plaintiffs
and their members are no longer covered by Chapter
71, the statute that creates the FLRA and that
defines the scope of the FLRA's jurisdiction.
Plaintiffs and their members no longer have rights
and protections under that statute. The agencies
are no longer covered by that statute and have
no obligation to comply with the terms of that
statute. Nevertheless, the statutory scheme that
only extends to parties within the scope of the
statute is the exclusive form for the plaintiffs.
But if the government wants to seek review of
the validity of the executive order, it is free
to bring that claim in federal district court.
That would be an unprecedented application of
the channeling doctrine, and therefore it was
correctly rejected. Channeling is a question
of congressional intent, and there is nothing
in the statute that suggests Congress intended
for the FLRA to exercise jurisdiction over non
-covered entities nor to set up an unbalanced
scheme where only union claims are challenged
and government claims are not. That is not the
FLRA's authority. Whether if there are covered
entities bringing covered claims, whether it's
the union or the agency, those go to the FLRA
and that channel is closed. otherwise. That statutory
scheme is not available to the plaintiffs here
and therefore the district court correctly found
just like the DC Circuit in the Nicholson case
that we cited in our brief. when an executive
action takes a matter outside of the FLRA's purview,
which is what has occurred here with this executive
order that excludes these agencies from the coverage
of chapter 71, it is appropriate for a challenge
to the legality of that executive action to be
brought in federal district court. in its reply
essentially said, well, your position is that
your clients are covered by the statute and you
believe the executive order to be unlawful. And
so you should therefore be required to pursue
the FLRA remedial scheme in light of that. I
mean, there's a bit of a tail chasing problem
with this particular issue. So how do you respond
on that point? Well, so the case that the government
cites in support of that is a... a case that
involves standing and particularly involves regressibility,
where the court does assume whether the plaintiff
is going to succeed on the merits in order to
determine whether the injury that's asserted
is regressible for Article III standing purposes.
Channeling, though, that is a matter of congressional
intent. Did Congress intend that this is the
type of claim that should go to the administrative
agency first? And that congressional intent is
lacking here. because the statute does not grant
the FLRA jurisdiction over entities that are
outside the scope of the statute. And it doesn't
provide whether it's the union or the agency,
if it's a non -covered entity, then the FLRA
lacks authority to decide any claims that are
brought by non -covered entities. Doesn't your
argument assume that the executive order is valid
and that the government prevails. It seems that
the issue that would be before the FLRA is the
very crux of the issue. Is it valid? Are these
agencies and departments excluded? Are these
employees excluded? That the FLRA would not assume
that to be the case, but that would be the question
presented to them. And if that is so, why is
that not within their purview and their expertise?
The reason it's not, wouldn't be, it's not within
their purview is the fact that it wouldn't have
jurisdiction to decide a claim against a, one
of the defendant agencies here because that agency
is excluded. And that's what we've seen in the
process. You're saying the same thing. My point
is that you're assuming that's the case, but
that would be the very issue. Is it within their
jurisdiction? Are they excluded? That would be
the question, the question, the very question
you presented to the district court would be
the very question you would present to the FLRA.
Why the FLRA would lack authority to decide that
claim is that the question of the scope of presidential
exclusion of an agency under 7103B is not a matter
that's committed to the FLRA. The FLRA decides
labor management disputes and it's enumerated
in the statute, particular provisions of the
statute. 7103B does not give the FLRA the authority
to review the president's of that exception and
exclude an agency from the coverage of the statute
altogether. But do you think that it does give
the district court the ability to review the
president's national security determinations?
It gives the district court the authority to
review the constitutional challenges to the president's
invocation of 7103B. And that's the issue that
the district court found that's before the court
here is a First Amendment claim. And courts absolutely
have the ability to review whether presidential
action violates the First Amendment. So maybe
walk through what is the evidence of First Amendment
retaliation. So the primary evidence of the First
Amendment retaliation comes from the White House's
own statements that is published in the fact
sheet. So that fact sheet was the rationale for
this very executive order. It's not an extrinsic
statement or an unconnected statement. It is
an official document published by the White House.
What specific statements in it are the troubling
ones to you? The ones are the, first of all,
the reference to, so the fact sheet refers to
hostile federal unions, and then it goes on to
explain what the hostility of that act is, where
it states that it references. The largest federal
reunion, which is plaintiff AFG, so it was referenced
directly in this, describes itself as fighting
back against Trump. The words fighting back are
in quotes in the fact sheet because that's taken
from an article that AFG published on its website
where it detailed various First Amendment activity
that it is engaged in, such as filing lawsuits,
lobbying members of Congress, engaging in public
speech that is critical of various policies of
the administration. has been pursuing. It also
calls out plaintiff NNU, one of the VA's unions,
for filing grievances against President Trump's
policies. So it directly references First Amendment
activity by the plaintiffs in this case. And
it goes on to say that, in the closing words
of that fact sheet, President Trump supports
constructive partnerships with unions who work
with him, and therefore makes clear that the
dividing line between which unions are okay and
which aren't, when we're going to allow collective
bargaining in this agency and when we're not,
is whether or not the union that represents the
employees in those agencies have expressed sufficient
support or at least not expressed opposition
to the president's agenda. That's First Amendment
retaliation. That's drawing a line and punishing
those federal unions who have engaged in speech
and petitioning activity critical of the president.
And that is First Amendment speech. What do we
do with the fact that the statute allows the
president to make a national security determination
and he did that? And that doesn't seem to be
reviewable. Well, we would disagree that it's
not reviewable, but we don't have to even get
into, that's a different claim that the plaintiffs
have brought below, which the district court,
because he ruled on First Amendment grounds,
didn't reach. But the First Amendment question
is, first of all, is not reviewable. And here,
I think the reason, in the government's presentation,
they referenced Trump v. Hawaii several times.
That case is distinguishable for multiple reasons.
But one of them is that what the court was looking
at in that case is when you had a facially neutral
rationale set forth, and the court looked at,
can we look behind that facially neutral rationale
and cast doubt? on the stated rationale based
on other statements and other evidence, extrinsic
evidence. That is not the situation here. We're
not asking that we don't need to look behind
any stated motive. We don't need to infer or
speculate or guess from various pieces of evidence
that we're putting together. The improper motive
is set forth in the very explanation of the executive
order. So we don't need to look behind the rationale.
To make that statement, you're saying that the
fact sheet is the rationale for the executive
order. But the executive order itself is facially
neutral, as it was in Trump versus Hawaii. And
I think that's the issue. In Trump versus Hawaii,
they're talking about looking beyond the executive
order to statements, things posted on websites,
et cetera, some before the president was president,
when he was a candidate here. you're looking
beyond the executive order to the fact sheet.
And I think that you've rushed with the frequently
answered questions as well, but it seems that
you're really focused on the fact sheet. But
that's not part of the executive order. So aren't
we looking beyond the facially neutral executive
order at that point? So we would not characterize
the executive order as facially neutral. So the
executive order on its face says it is eliminating
collective bargaining rights at a large swath
of agencies. But within that very order, it then
carves out and maintains collective bargaining
rights for other employees at those very same
agencies, specifically law enforcement employees,
except for law enforcement employees who work
at the Bureau of Prisons. where plaintiff AFG
represents all of the bargaining unit employees
at the Bureau of Prisons. So there are suspect
features on the face of the executive order itself.
And here, the fact sheet is not the type of extrinsic
evidence that the Supreme Court was referring
to in Trump v. Hawaii, because it was published
alongside this executive order, and it calls
itself the fact sheet. for the executive order.
So it is directly connected and on its face states
that it is the official explanation for this
executive order. How is this not just questioning
the line drawing on the national security side
of the house? It seems that it inevitably just
falls back into that. You see that in the district
court order too, where the district court says,
I'm not questioning this, but that at times it
does appear that the order does question it.
But the the so the what the district court did
was find and what we are saying here as well
is that First Amendment retaliation is not that's
not national security and that's not a valid
basis by which government action can be taken.
It's in the Arizona Students Association case
from this court, which we cited in our brief,
as well as in the Boquist case that the government
cites. In both cases, this court makes the point
that the fact that an action could have been
lawfully taken, it is still unlawful if it is
done so on First Amendment retaliation grounds.
Any argument that, well, some of these agencies
maybe could have been excluded or not, or that,
you know, the president could draw lines in certain
ways. That's not, there's a threshold problem
here though, because here those lines were drawn
on the basis of First Amendment speech as retaliation
for First Amendment speech, which is unlawful.
That is unconstitutional. But I have to go back
to what Judge Bres just asked you. How is that
not weighing the president's determination on
national security. I mean, the language in the
district court's order, preliminary injunction
order, talks about the scope of the executive
order, and that certain agencies that are listed
don't appear as if they have anything to do with
national security. That just seems to me to be
naked, unvarnished, straightforward, reweighing
the president's national security determination,
whether an agency impacts national security or
not. I don't know how we view it as anything
else. I mean, even your scope argument that you're
talking about, that seems to fall clearly within
the president's authority to make a national
security determination. So first of all, the
scope argument that I'm making as what the district
court opinion did as well, is that that points
out that there are suspect features on the face
of the executive orders. that raises a question.
The fact sheet then tells us what is going on
here. Why is it that you have this? I think the
point is when you say there are suspect features,
i .e., these are not really national security
determinations, meaning we're reweighing whether
they are in fact national security determinations.
I mean, that's the whole problem that I'm having
with your argument. So please explain to me why
this is, I'm wrong. Well so I think what I let
me step back and I'll put the statute in context
which I think is important here. 7103B is an
exception. to a congressional statute that found
that it is, and these are set forth in 7101,
the purposes which Congress laid out when it
passed the statute, where it found that collective
bargaining and labor organizations in the federal
workforce increases efficiency within the federal
government, and having labor organizations is
in the public interest. And therefore, we are
providing collective bargaining rights across
the federal government. 7103B then is an exception
that when those two national security criteria
are met, an agency or a subdivision can be excluded.
Under just general principles of statutory interpretation,
that exception cannot be read in a way that swallows
the entire rule. But that's what's at least in
the government's presentation, I think in response
to your question, Judge Beatty, about whether
there are any limits. here, the government's
interpretation is that the president can declare
anything to be national security, and that's
the end of it. The court cannot work. What does
any of this have to do with the First Amendment?
I mean, this is looking at B1 and trying to ask,
can the president essentially exclude all employees?
He hasn't done that here, but there's some reason
to think about what would happen if he did. But
even so, I mean, that gets into a, that's that
issue. That's the issue before us is the argument
that There's First Amendment animus that's so
powerful that we should undo this. Right. And
my argument on the First Amendment animus is
what I stated before. The First Amendment animus
here is stated outright in the official explanation
of the executive order. And that's what the district
court cited and relied on. And that provides
the motive. There's no further inferences. Why
wouldn't we read that? the statements just as
good part and parcel of the national security
rationale because that would then mean that we're
defining national security to mean political
allegiance to the president political support
of the president's agenda that if it were a threat
to national security for domestic organizations
to engage in public criticism and opposition
to the president's policies through constitutionally
protected avenue. We're talking about filing
lawsuits, making public statements, using the
statutory provisions that are granted. These
are legal. constitutionally protected avenues
to engage in speech. That cannot be seen as the
threat to national security. That runs right
into the First Amendment. So you pointed to two
bullets, I think, in the fact sheet. What would
have happened if the fact sheet just hadn't had
those two bullets? Well, it's not two bullets.
It's more than that, but just to answer your
honor's question. Well, let's just pin that down
actually. I see the fighting back. I see the
VA union. What else in here is part of the evidence
of First Amendment retaliation beyond those two?
Prior to that, it states that the CSRA enables
hostile federal unions to obstruct agency management.
It also then... So you just think the word hostile,
that's retaliation? Well, no. It's then explained
what is the hostile action, and that's what's
explained in the bullet points that I was referencing.
After that, there's also the closing line that
states outright that... Partnerships that unions
will be tolerated if they are if they will work
with the president and those will not will not
be tolerated So that and that's also at the end
of the fact sheet There are multiple provisions
of the fact sheet that demonstrate the retaliatory
animus and Let's just imagine those were taken
out What would you still be arguing that there's
First Amendment retaliation here I think that
would be a different case. I think then it would
be a circumstantial evidence case, rather than
a direct evidence case, as we have here today
with these fact sheet statements. And the First
Amendment analysis may be different there. If
there was an executive order that was issued,
and if, you know, this Court has said in the,
I think it's also the Arizona Students Association
case, the First Amendment retaliation can be
shown by both either circumstantial evidence
or by direct evidence. So if you had the unprecedented
size and scope and the extraordinary over -breath
of the executive order. If you had the carve
-ins and carve -outs, which raise questions as
they did here, the law enforcement carve -in,
the Bureau of Prisons then carve -out where AFG
represents the bargaining unit employees, that
could still raise a First Amendment retaliation
question. It would not be the same case. This
case is much stronger and more straightforward
because we have direct evidence of what the motive
was for this executive order, which was published
in an official document put out by the White
House. So council, let me jump in here. Let's
assume I agree with everything you said so far.
Okay. Every single word. What do we do with the
fact that the district court did not address
what I'll call the Mount healthy issue, which
is that even if everything you said is true,
the president may have just done this anyway.
And if that's the case, what's your response
to the fact that the district court didn't address
that? Well, so the district court did say that
after going through the fact sheet statements,
it did say that the national security does not
rebut that. I do want to point out what the posture
was in the district court. The government did
not put in any evidence that... support what
is an affirmative defense, both under mouth healthy
as well as this court's case law, that once a
prima facie case of retaliation is shown that
animus was the substantial motive, the burden
shifts to the government to establish as an affirmative
defense that they would have done the same thing
anyway. We don't think that can be established
here. And the district court did point out, it
referenced the very piece of the fact sheet that
I was pointing to as well, which is the closing
words. And what the district court says is, what
that says is that it condemns unions who are
critical of the presidents and supports the unions
who will toe the line. That's what shows that
even if the government had attempted to make
a showing before the district court, which it
did not, that it would have taken the same action
anyway, that negates any such showing. What the
government argued in its day motion here is that
the district court failed to consider its, quote,
additional evidence. the government put in zero
evidence at the preliminary injunction stage.
So there is no error by the district court in
not considering, quote, additional evidence.
There was none before it. And the district court
did look at, it went through the First Amendment
retaliation elements, and then it also found
that the national security statements did not
rebut. the nexus that the government that the
plaintiffs had shown that nexus between the adverse
action taken and the first amendment speech and
so it it properly applied this court's first
amendment retaliation analysis but can you tell
me again i don't want to harp on it too much
but i'm looking at the district court's order
i don't see the mount healthy standards cited
did maybe i missed it um but i didn't see it
And look, there may be reasons why the government
certainly could have handled this better. I'm
not arguing with you on that. But I didn't see
the district court say what you just said. of
the order, the invocation, so this is after going
through the fact sheet statements and finding
the invocation of the national security exception
in section 7103B1 does not necessarily rebut
this nexus as the government would have it. And
so you think that's, but then it goes on to talk
about second guessing national security termination.
Okay, I mean, I see your point. And I'm not going
to try to force you to concede something, but
in response to my question, that's the best part
we point to. Yeah, and I would point out that,
yes, it starts with that, but then it goes on
again and it discusses the additional, the scope
of the executive order, the line drawing. So
the district court was looking at all of that
evidence and weighing it there. The final point
I'll make on in my remaining time in terms of,
I just wanted to say a word on irreparable harm.
So the injunction here, return the agencies to
the same labor relations framework that has been
in place since 1978. It should be dispositive
of the government's argument. that none of the
declarations that they've proffered to this court,
which was not proffered, again, during the preliminary
injunction record, that does not cite a single
example of something that has happened in the
past 50 years where an agency's compliance with
a collective bargaining agreement harmed national
security. And there's an obvious reason for that,
which is that the statute already provides substantial
flexibility in this area, including an emergency
exception that permits an agency to take whatever
actions may be necessary to carry out the agency
mission during emergencies. The statute also
excludes altogether from the bargaining unit
any employee whose work directly affects national
security. The statute allows for the suspension
of an employee when an agency head finds it necessary
in the interests of national security. So the
framework that the injunction put back in place
and what agencies, the situation that the agencies
are addressing. is engaging with labor unions,
which Congress found are in the public interest,
about workplace matters in non -emergency situations
on behalf of non -national security employees.
That's the status quo that the preliminary injunction
put in place. And the allegations of harm...
Wait, so you say it puts back in place the status
quo of dealing with non -national security employees,
which means we're making that determination?
as opposed to the president? No, I'm sorry. So
what the statute provides is when a labor organization
is certified as exclusive rep in the first place,
the bargaining unit, so the employees who...
had collective bargaining rights and who then
lost them under the executive order. There had
already been the determination made that their
work does not directly impact national security
because they could not be part of the bargaining
unit if that were the case. The situation is
not static. You keep referring to 1978. Everything
in the world is different, things are changing.
I'm not sure how powerful it is to argue that,
oh, this is a status quo for 50 years because
statute in its provisions recognizes that the
national security situation changes and the president
needs to have the ability to react quickly and
issue executive orders to do so. So why is what
was happening in 1978 or when President Carter
issued an executive order exempting various agencies,
why is that relevant to what's happening now?
What's relevant is that it has existed for 50
years. So it was what was in place in 2024, 2023,
2022, and prior to that. My point is that in
terms of the allegations of irreparable harm
that the declarations that the government relies
on here and that they've proffered here, the
assertions that are made in those declarations
are the hypothetical scenarios that are put forth
in there are ones that the statute already provides
for. And there's no explanation provided or even
any accounting in those declarations that there
are these other statutory mechanisms which would
still exist under the preliminary injunction.
Can I just ask a logistic question? You mentioned
the briefing schedule. When will the briefing
be complete? Not on the emergency motion, but
on the actual PI. The government's brief is due
a week from Friday. And then our brief, I should
know the exact date. I believe it's 30 days after
that. And what's happening in the district court?
So the district court was scheduled to be having
the initial case management conference. While
we're here talking right now, the district court
took that off the calendar as a result of the
appellate proceedings. But the party submitted
their joint case management statement last week
in advance of what was to be the case management
conference today. That schedule provides for
summary judgment briefing beginning, I believe,
in August. Is there a discovery that's contemplated?
As of right now, there's no discovery that's
been proposed. The parties haven't engaged, haven't
exchanged initial disclosures yet. And what the
joint case management statement provided is that,
depending on what witnesses may or may not be
identified by the government in their initial
disclosures, but as of right now, there's no
plan for, there's no contemplated discovery.
So is the summary judgment? just going to be
essentially a redo of you know what we've already
seen on the on the PI it's the same record it's
going to be the same issues. The record may have
because things continue to be happening at agencies
though there may be I think there will be additional
evidence that's put into the record but there
are additional claims that the plaintiffs had
which the district court did not address in the
preliminary injunction motion. So the the additional
claims would include that This was essentially
beyond the statutory power because it was too
broad The basis isn't that it's too broad, but
that is what it is not the only basis But yes,
there is an ultra various claim that the plaintiffs
raised have raised in this case Which was not
addressed in the preliminary injunction opinion.
What are the other claims? So there's ultra Vera's
there's First Amendment. What else? There's a
fifth amendment claim as well relating to the
abrogation of contracts, as well as a fifth amendment
procedural due process claim, which were part
of the preliminary injunction motion, but were
not reached by the district court. The district
court described the first amendment claim as
the strongest issue for the plaintiffs. We're
calling the order correctly. District Court did
say that. I should add as well, we had two First
Amendment claims, First Amendment retaliation,
as well as First Amendment viewpoint discrimination,
and the District Court did not reach the second
First Amendment, the second part of the First
Amendment claim. Anything else from my colleagues?
No, Your Honor, and I see I'm over time as well.
Thank you. Thank you very much. All right, Council
for the Government. Thank you, Your Honor. I
want to start just briefly with jurisdiction.
This is clearly a situation where Congress intended
the FLRA to hear these claims. The FLRA has authority
to hear any claim that an agency has violated
the FSL MRS. That's in 5 USC 7105 and 5 USC 7116,
AA8. This is clearly such a claim. Plaintiffs
are saying that the government has to comply
with these collective bargaining agreements and
the government is saying that it doesn't. We
should also mention that all of the relief that
plaintiffs are asking for here can be received
from the FLRA after this litigation proceeds
or from a court. I wanna go back to the First
Amendment claim. Plaintiffs do, plaintiffs attempt
to read and add words to the district court's
order that I don't think are there. The district
court did not cite the non -healthy standard
despite us raising this in our brief in, which
is a brief in opposition to their temporary restraining
order because the procedural posture of this
case is that the district court turned that into
a preliminary injunction. And the district court
and the plaintiffs cannot ask this court to add
on that reasoning. That just is simply not there.
They didn't mention that in their brief solo
now. They say that the word rebut somewhere in
the opinion mentions that, but I just don't think
that's the case. And regardless, even if the
district court had appropriately considered whether
there was evidence to rebut, whether the government
would have adopted the executive order anyways,
that doesn't really matter here because the government
had clearly facially legitimate reasons for adopting
the order. Judge Beatty, you were mentioning
that the executive order is really new facially
neutral. It's just a fact sheet that was published
by the White House press office that included
the statements plaintiffs are mentioning. Now,
we think that press office statement is actually
helpful to explaining some of the reasons for
the agencies being included here. However, that's
not something that plaintiffs have really even
alleged the president ever saw. And we, so we
think that's clearly extrinsic, extrinsic evidence
here. It is not direct, the plaintiffs said over
and over again that this, they had direct evidence
here. We don't think that's the case at all,
given that. the executive order itself is facially
neutral. And the basis of the First Amendment
retaliation claim appears to just be what was
in the fact sheet, which is not contained within
the executive order. How about on the face of
the fact sheet? The other side points to some
statements, hostile federal unions and fighting
back, and the last bullet points and a few other
points. Yes, Your Honor, we think the President
can appropriately consider such things when determining
whether agencies should be exempted from the
FSL MRS requirements. And the reason for that
is simply that the President has the ability,
as the Commander -in -Chief, to determine whether
his plans to try to make national security involved
agencies more efficient and more responsive and
better able to plan for national security emergencies
in the future, we think that the president has
the ability to consider what plaintiffs can complain
about, even though those things may involve some
First Amendment protected activity. We think
this is a context, like Nieves and Boquist, where
there is legitimate consideration of whether
whether a particular union activity and complying
with the FSLR MRS requirements would impede the
president's, would impede the president's policy
agenda. Well, Council, let me jump in on that
because I'm, this is where I get a little bit
concerned about the government's position in
this case. So if a president says, I'm the national
security president, so therefore if you don't
like me, you're against national security, so
I'm going to cancel any contracts if you don't
like me because I'm the national security guy.
Is that what you're saying he could do that?
Your honor, what the government is saying here
is that if the president has a facially legitimate
reason for excluding certain agencies here, which
we think is very clear from the fact sheet, that
that is sufficient to defeat a First Amendment
retaliation claim. We're not going further than
that in saying that the president can just exclude
whatever he wants. There would be some limited
judicial review And we just think it would be
governed by the Trump versus Hawaii standard,
where you would look at whether there was a legitimate
interest involved. Your Honor, the district court's
order has caused irreparable harm to the government.
There were some questions about whether some
of the declarations were properly submitted.
We think they were because we were trying to
show that there was a stay, a stay was necessary
from the district court. But regardless, the
government did not need to present its own evidence
in district court. to on that fourth prong of
the retaliation test under Mount Healthy. The
government relied in docket 44 at around pages
33 to 35. The government relied on... relied
on evidence that was in plaintiff's own record
to robot that, including the fact sheet, including
that many of the collective bargaining agreements
had been renegotiated in the prior administration
to try to disrupt the current administration's
policies. And then at SA 60, which is in plaintiff's
supplemental appendix. They mentioned that we
never mentioned any time in the last 50 years
that the president's national security has been
hampered by this, by bargaining. There's a good
example on SA60 about ICE not being able to modify
its cybersecurity policies without bargaining.
It couldn't exclude Gmail or web -based mail
services, even though those were compromising
security. We think the district court's order
is a significant intrusion on the president's
national security prerogatives and should be
stayed pending appeal. And with that, the government
rests. Any other questions for my colleagues?
All right, seeing none, I want to thank both
of you for your advocacy in this case and the
excellent briefing and we appreciate the very
quick turnaround around July 4th. Sometimes we
all got to do that and I want to appreciate that
your prompt attention in this matter. For that,
I guess that last thing I'll say is this matter
is now adjourned, submitted, and we will go into
conference. Thank you.