The opinion
United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued November 25, 2013 Decided December 17, 2013
No. 12-1383
UNITED STATES DEPARTMENT OF JUSTICE FEDERAL BUREAU
OF PRISONS FEDERAL CORRECTIONAL COMPLEX COLEMAN,
FLORIDA,
PETITIONER
v.
FEDERAL LABOR RELATIONS AUTHORITY,
RESPONDENT
AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES,
COUNCIL OF PRISON LOCALS, COUNCIL 33, LOCAL 506,
INTERVENOR
Consolidated with 13-1067
On Petitions for Review and Cross-Applications for
Enforcement of an Order of the Federal Labor Relations
Authority
Howard S. Scher, Attorney, U.S. Department of
Justice, argued the cause for petitioner. With him on the
briefs were Stuart F. Delery, Assistant Attorney General, and
Leonard Schaitman, Attorney.
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Zachary R. Henige, Attorney, Federal Labor Relations
Authority, argued the cause for respondent. On the brief were
Rosa M. Koppel, Solicitor, and Barbara A. Sheehy, Attorney.
David A. Borer and Judith D. Galat were on the brief
for intervenor American Federation of Government
Employees, Council of Prison Locals, Council 33, Local 506
in support of respondent.
Before: BROWN, Circuit Judge, and EDWARDS and
SILBERMAN, Senior Circuit Judges.
Opinion for the Court filed by Senior Circuit Judge
EDWARDS.
SILBERMAN, Senior Circuit Judge, concurring in part.
EDWARDS, Senior Circuit Judge: The Petitioner in this
case, the United States Department of Justice Federal Bureau
of Prisons Federal Correctional Complex Coleman, Florida
(“agency” or “BOP”), challenges a decision and order of the
Federal Labor Relations Authority (“FLRA” or “Authority”)
regarding United States Penitentiary I, a high security facility
in Coleman, Florida. Am. Fed’n of Gov’t Emps. Council of
Prison Locals 33 Local 506 (Union), 66 F.L.R.A. 819 (July
23, 2012) (“FLRA Decision”), reprinted in Joint Appendix
(“J.A.”) 284-309. The Authority held that BOP was required
to bargain with the American Federation of Government
Employees, Council of Prison Locals, Council 33, Local 506
(“Union”) over two proposals relating to BOP’s installation of
two metal detectors in the compound through which prisoners
must pass to enter or exit the recreation yard. Id. at 824, 828.
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The Union’s Proposal 1 would require prison
management to have inmates turn in all watches which do not
clear the compound metal detector, treat such watches as
contraband, and assure that watches sold in the prison store
would not set off the metal detectors. In support of this
proposal, the Union argued, inter alia, that the bottlenecks of
inmates at the entrance to the compound/detector area, caused
by officers having to personally search inmates who had set
off the metal detectors while other inmates waited, posed a
safety risk to officers who could be “trapped in the event of a
disturbance.” Id. at 821. The FLRA determined that Proposal
1 was negotiable as an “appropriate arrangement” under 5
U.S.C. § 7106(b)(3) because it sought to ameliorate harm
caused by the installation of the new metal detectors and did
not excessively interfere with management’s rights under
§ 7106(a)(1) to determine its internal security practices.
The Union’s Proposal 2 initially consisted of the
following three sentences:
A block and mortar Compound Officer’s station, or
comparable building materials, will be constructed on the
compound. This should be constructed near one of the
metal detector areas. The Metal Detector Station on the
opposite side of the compound should have a secure area
to be used as a control center for controlling inmate
movement through the metal detector area, enclosed in a
chain link fence, or something comparable.
Id. at 824 (emphasis added). The Authority found that
Proposal 2, in its entirety, would excessively interfere with
management’s right to determine internal security practices
and, thus, is not an “appropriate arrangement” subject to
bargaining. Id. at 827. However, the Authority granted the
Union’s request to sever the third sentence from Proposal 2
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and held that the severed sentence is within the duty to
bargain. Id. The Authority did not hold that the Union has a
right to bargain over the construction of “chain link fence, or
something comparable.” Rather, it reasoned that the third
sentence did not offend BOP’s management rights because it
merely proposed that the metal detector on one side of the
compound “should” (instead of must) have a secure area
enclosed in a chain link fence or something comparable. Id. at
828. In other words, the Authority found that the third
sentence of Proposal 2 was negotiable because it required
nothing of BOP. Id.; Br. for Resp’t at 27.
In March 2013, after BOP had filed its petition for review
with this court but before arguments had been presented to the
court, the prison warden changed the metal detector policy so
that detectors would be used only “as needed.” BOP then filed
a motion with the court to dismiss the case as moot because
the bottleneck problem that prompted the Union’s proposals
was no longer an issue.
BOP now asks that this court find its petition moot and
vacate the Authority’s decision and order, or, in the
alternative, that the court reverse the Authority’s decision and
order on the merits. The Authority has cross-petitioned for
enforcement of its decision and order, and the Union has
intervened on behalf of the Authority. For the reasons
indicated below, we deny BOP’s motion to dismiss, deny the
petition for review with respect to Proposal 1, grant the
petition with respect to the third sentence of Proposal 2, and
remand the case to the Authority for further review.
I. MOOTNESS
We first address the threshold jurisdictional issue raised
by BOP, i.e., whether “this case is moot because of events
5
occurring after the Authority’s decision, namely, a new
warden’s decision to use the compound detectors to screen
only those inmates suspected of carrying contraband.” Br. for
the Pet’r at 3. BOP is simply mistaken in its contention that
the case is moot because the action giving rise to the Union’s
bargaining demands is no longer an issue. On this point, the
Supreme Court has spoken unequivocally:
[V]oluntary cessation of allegedly illegal conduct does not
deprive the tribunal of power to hear and determine the
case, i.e., does not make the case moot. A controversy
may remain to be settled in such circumstances, e.g., a
dispute over the legality of the challenged practices. The
defendant is free to return to his old ways. This, together
with a public interest in having the legality of the practices
settled, militates against a mootness conclusion.
United States v. W.T. Grant Co., 345 U.S. 629, 632 (1953)
(citations omitted); accord County of Los Angeles v. Davis,
440 U.S. 625, 631 (1979). In order for this matter to be
declared moot, BOP must satisfy a heavy burden of
demonstrating “that ‘there is no reasonable expectation’ that
the alleged violation will recur.” County of Los Angeles, 440
U.S. at 631 (quoting W.T. Grant, 345 U.S. at 633); accord
Payne Enters., Inc. v. United States, 837 F.2d 486, 492 (D.C.
Cir. 1988). BOP has not satisfied this burden.
The record before the court indicates that BOP has not
irrevocably reversed its decision to place metal detectors in
the prison compound. And it is uncontested that BOP retains
the discretion to decide how to utilize the metal detectors. In a
February 2013 memorandum issued by the agency concerning
use of the metal detectors, BOP declared that the metal
detectors will not be removed from the recreation yard and
that the metal detectors will be used “to screen inmates as
6
needed for security purposes (randomly, suspicious behavior,
etc.).” Br. for the Pet’r, Addendum B. It is clear from this
directive that the agency can increase the number of inmates
required to pass through the metal detectors at any time, as it
sees fit, and reintroduce the bottleneck problem that the Union
seeks to address through its bargaining proposals. Given this
reality, we cannot conclude that BOP has met its “heavy
burden” of showing that “there is no reasonable expectation
that the wrong will be repeated.” Payne Enters., 837 F.2d at
492 (citation omitted).
BOP also contends that we should vacate the FLRA’s
decision, either because the case is moot or because the
Union’s claim regarding Proposal 1 is now stale. We disagree.
Even if the case were moot, we would not vacate the FLRA’s
order with respect to Proposal 1. The Supreme Court has
stated that if the party seeking relief from the judgment below
caused the mootness by voluntary action, vacatur usually will
not be ordered. U.S. Bancorp Mortg. Co. v. Bonner Mall
P’ship, 513 U.S. 18, 24-25, 29 (1994). We can find no
equitable basis for vacatur in this case. However, we will
remand the case for further consideration by the Authority to
allow it to determine whether, in light of the changed
circumstances cited by BOP, the order to bargain over
Proposal 1 should be modified.
II. LEGAL FRAMEWORK
As we explained in Nat’l Treasury Emps. Union v. FLRA
(NTEU 2008), 550 F.3d 1148 (D.C. Cir. 2008):
The Federal Service Labor-Management Relations
Act, 5 U.S.C. §§ 7101-7135, requires federal agencies to
bargain with public employee unions over employment
conditions, but renders certain management rights
7
nonnegotiable, including an agency’s right to determine
its “internal security practices,” 5 U.S.C. § 7106(a)(1).
When a union submits a proposal that would affect an
agency’s internal security practices, the agency can
invoke this provision to relieve it of the obligation to
negotiate over the proposal. To find that a proposal
would affect the agency’s right to determine its internal
security practices, the Federal Labor Relations Authority
must determine that the agency’s policy is reasonably
linked to the security of its operations, and that the
union’s proposal deviates from or modifies the policy.
See Nat’l Treasury Emps. Union v. FLRA (NTEU I), 404
F.3d 454, 456-57 (D.C. Cir. 2005). An agency may
nevertheless be required to negotiate over a proposal
which would affect its right to determine its internal
security practices if the union can establish that the
proposal represents an “appropriate arrangement[ ] for
employees adversely affected” by the agency’s exercise
of that right. § 7106(b)(3).
In assessing whether a proposal that would affect an
agency’s right to determine its internal security practices
is nonetheless negotiable as an appropriate arrangement,
the Authority applies the “KANG test.” See Nat’l
Treasury Employees Union v. FLRA (NTEU II), 437 F.3d
1248, 1252-53 (D.C. Cir. 2006) (citing Nat’l Ass’n of
Gov’t Employees, Local R14-87 (KANG), 21 F.L.R.A. 24
(1986)). Under this test, the Authority requires the union
to establish that the proposal is in fact intended as an
arrangement to benefit employees. If the union does so,
then the Authority balances the “‘practical needs of
employees and managers’” to see if the proposal
“‘excessively interferes’” with management rights.
NTEU II, 437 F.3d at 1253 (quoting KANG, 21 F.L.R.A.
at 31-32).
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Therefore, in order to conclude that an agency has no
obligation to negotiate over a proposal, the Authority
must determine, first, that the proposal would affect the
agency’s right to determine its internal security practices
and, second, that the proposal does not qualify as an
appropriate arrangement. While the Authority may make
the first determination without requiring the agency to
produce evidence if the connection is obvious, see, e.g.,
U.S. Dep’t of Def. Fort Bragg Dependents Sch., 49
F.L.R.A. 333, 343 (1994), its second determination must
be supported by record evidence, e.g., NTEU I, 404 F.3d
at 458.
Id. at 1150-51.
As noted above, the dispute in this case arose when BOP
installed outdoor metal detectors at the United States
Penitentiary I in Coleman, FL, and implemented a policy
requiring that all prisoners move through them on the way in
and out of the recreation yard. The Union, concerned that the
large numbers of inmates moving through the detectors could
cause “bottlenecking,” submitted a number of bargaining
proposals for changes in prison procedure intended to
improve working conditions for the correctional officers in
light of the new detectors. Only Proposal 1 and the third
sentence of Proposal 2 are at issue in this case.
III. STANDARD OF REVIEW
“It is well established that the court’s role in reviewing
the FLRA’s negotiability determinations is narrow.” Am.
Fed’n of Gov’t Emps., Local 2761 v. FLRA, 866 F.2d 1443,
1446 (D.C. Cir. 1989). We “will only reverse a negotiability
finding of the Authority when the finding is not supported by
9
substantial evidence, is inconsistent with the governing
statute, represents an unexplained departure from prior agency
determinations, or is otherwise arbitrary or capricious or not
in accordance with the law.” Id.
However, pursuant to arbitrary and capricious review, if
an agency’s “explanation for its determination . . . lacks any
coherence,” a court owes “no deference to [the agency’s]
purported expertise.” Tripoli Rocketry Ass’n, Inc. v. Bureau of
Alcohol, Tobacco, Firearms, & Explosives, 437 F.3d 75, 77
(D.C. Cir. 2006); accord Fox v. Clinton, 684 F.3d 67, 80
(D.C. Cir. 2012) (holding that because the agency failed to
offer any coherent explanation for its judgment denying the
plaintiff’s application for a Certificate of Loss of Nationality,
the action was arbitrary and capricious for want of reasoned
decisionmaking); Coburn v. McHugh, 679 F.3d 924, 926
(D.C. Cir. 2012) (holding that because the agency decisions
were “largely incomprehensible,” they were “unworthy of any
deference”).
IV. PROPOSAL 1
We need not tarry long over Proposal 1, for the
Authority’s decision is eminently reasonable and supported
by the record. The Authority found that the Union had
identified several adverse effects resulting from BOP’s
decision to install new outdoor metal detectors. These adverse
effects included, inter alia, bottlenecks at the metal detector
entrances that compromised the safety of officers and the
efficacy of the clearing process and that increased the amount
of time officers were “at the mercy of . . . climate conditions.”
FLRA Decision, 66 F.L.R.A. at 823. Moreover, the Authority
found that “Proposal 1 is sufficiently tailored because it
targets a group of employees likely to be harmed by a
particular exercise of management’s right to determine
10
internal security practices, here, the installation of outdoor
metal detectors. It is intended to reduce nuisance alarms
triggered by prohibited watches, thereby moving inmates
through the compound-detector bottlenecks more quickly.”
Br. for Resp’t at 17; see FLRA Decision, 66 F.L.R.A. at 823.
Finally, the Authority found that Proposal 1 is an “appropriate
arrangement” under KANG because “banning prohibited
watches would reduce the delays, inefficiencies, and security
risks caused by nuisance alarms at the compound-detector
bottlenecks.” FLRA Decision, 66 F.L.R.A. at 823.
During argument before this court, counsel for BOP
suggested that Proposal 1 should be declared non-negotiable
because BOP retains sole discretion to determine all matters
related to internal security at its prisons. This assertion is
wrong as a matter of law. As noted above in NTEU 2008,
“[i]n assessing whether a proposal that would affect an
agency’s right to determine its internal security practices is
nonetheless negotiable as an appropriate arrangement, the
Authority applies the ‘KANG test.’” 550 F.3d at 1150. The
Authority appropriately applied the KANG test here and
reasonably determined that Proposal 1 would not excessively
interfere with management rights. BOP argued before the
FLRA that Proposal 1 excessively interferes with its
management rights because it would leave the agency without
discretion to decide “what is and is not contraband as it relates
to inmate watches.” Agency’s Statement of Position at 15,
reprinted in J.A. 110. However, as the FLRA properly notes,
BOP never explained to the Authority just how this purported
loss of discretion would “excessively interfere” with BOP’s
management rights. FLRA Decision, 66 F.L.R.A. at 823.
In sum, we can find no grounds upon which to overturn
the judgment of the Authority with respect to Proposal 1. The
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Authority’s decision clearly passes muster under the
applicable standard of review.
V. PROPOSAL 2
The Authority’s decision on Proposal 2 is a different
matter, however. It is arbitrary and capricious because it is
“largely incomprehensible” and thus not supported by
reasoned decisionmaking. Coburn, 679 F.3d at 926.
The Authority held that the Proposal 2 taken as a whole
was non-negotiable because “a proposal concerning the
construction of a shelter for officers on the grounds of a
correctional facility affects management’s right to determine
internal security practices.” FLRA Decision, 66 F.L.R.A. at
826. The Authority found that “management has made a
decision to keep the compound area free from any
obstructions that could aid an inmate in escaping, committing
an assault, or otherwise engaging in illegal or non-allowed
conduct in that area.” Id. at 825. (citation and alterations
omitted). Thus, the Authority concluded that Proposal 2
would impermissibly infringe management rights, and it
further concluded that the proposal was not an appropriate
arrangement because it “excessively interferes with the
Agency’s right to determine its internal security practices.” Id.
at 826.
Oddly, however, the Authority concluded that the third
sentence in Proposal 2 –
The Metal Detector Station on the opposite side of the
compound should have a secure area to be used as a
control center for controlling inmate movement through
the metal detector area, enclosed in a chain link fence, or
something comparable.
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– is negotiable because it “has a separate meaning, and can
operate independently, from the first two sentences.” Id. at
828. Given the words of the proposal and the Authority’s
holding with regard to Proposal 2 in its entirely, this
conclusion makes no sense.
In an effort to defend its conclusion, the Authority found
that the first two sentences of Proposal 2 “address the
construction of the officers’ station, [while] the third sentence
addresses creating a ‘secure area’ in the compound-detector
area . . . [and not] necessarily the physical, block-and-mortar
officers’ station discussed in the first two sentences of the
proposal.” Id. Most notably, the Authority held that “the
severed sentence of the proposal uses the word ‘should’ and
we have adopted the Union’s explanation that the severed
sentence does not require that the compound detector area
have a secure area.” Id. (emphasis added). Thus, the
Authority’s decision relies heavily on its view that the word
“should” commands nothing and that, therefore, the third
sentence has no substantive content.
In its brief to this court, the FLRA amplified its view of
the third sentence of Proposal 2:
[T]he Authority found that the [third sentence in Proposal
2] is within the duty to bargain because it “does not
require that the compound-detector area have a secure
area,” only that it should have such an area. In other
words, the Authority determined that the proposal’s use
of the non-obligatory term “should” does not affect any
management right . . . . The Agency’s claim must fail
because the Agency did not, and cannot, explain how a
proposal that does not require it to do anything could be
outside the duty to bargain.
13
Br. for Resp’t at 29 (emphasis added) (citation omitted).
When pressed at oral argument on this point, counsel for the
Authority repeated the claim that the third sentence in
Proposal 2 requires nothing of BOP. He also asserted that,
even if it were included in a collective bargaining agreement,
the Union’s proposal would have no meaning and could not
be enforced. According to counsel, BOP was thus obliged to
bargain over the third sentence of Proposal 2. This is a
specious line of reasoning.
The Authority rhetorically asks: how can “a proposal that
does not require [BOP] to do anything” be outside the duty to
bargain? Id. This is the wrong question. The proper question
here is: how can a proposal that purports to have no meaning
whatsoever be within the scope of the statutory duty to
bargain? The Authority has provided no answer.
The Authority’s claim that the disputed proposal is
meaningless is sophistry. On its face, the third sentence in
Proposal 2 plainly would require a secure area for use as a
control center; that is what the Union was seeking. And the
Authority concedes that such a proposal would not be
negotiable. The Authority’s claim that the word “should” in
the third sentence somehow negates the force of what is being
proposed does not withstand scrutiny. “Should” is typically
used to express an obligation or duty. See, e.g., WEBSTER’S
THIRD NEW INTERNATIONAL DICTIONARY 2104 (3d ed. 1976).
Thus, the disputed proposal presented by the Union certainly
suggests something more than nothing.
Finally, counsel for the Authority acknowledged that if
BOP was required to bargain over the third sentence in
Proposal 2 and the parties failed to reach agreement, the
dispute could be submitted to the Federal Services Impasses
14
Panel for resolution. 5 U.S.C. § 7119(b). The Impasses Panel
may use any of a number of dispute resolution techniques –
such as informal conferences, additional mediation, fact
finding, written submissions, recommendations for settlement,
and mediation-arbitration – to resolve a bargaining impasse. If
the parties are still unable to reach settlement, the Impasses
Panel may impose contract terms upon the parties. Id.
§ 7119(c); 5 C.F.R. §§ 2471.1, 2471.6. Both this court and the
Authority have held that, barring “unusual circumstances,”
Panel decisions are not reviewable by the Authority or a
court. See, e.g., Council of Prison Locals v. Brewer, 735 F.2d
1497, 1499 (D.C. Cir. 1984) (holding that 5 U.S.C.
§ 7119(c)(1) “commits to the [impasses] panel broad authority
to make swift decisions in order to end disputes,” and that
such decisions are normally binding and nonreviewable);
Nat’l Treasury Emps. Union, 63 F.L.R.A. 183 (2009)
(NTEU), (same). In NTEU, the Authority tellingly stated that,
in matters concerning the resolution by an Impasses Panel of a
negotiation impasse under the statutory authority of
§ 7119(c)(1),
[the statute] establishes the Panel as an independent
entity within the Authority and commits to the Panel the
broad authority to make decisions to resolve negotiation
impasses. Council of Prison Locals v. Brewer, 735 F.2d
at 1499. That broad authority denies direct review of
Panel orders by either the Authority or the courts. Id. at
1499-1500.
63 F.L.R.A. at 187.
Given the wording of the Union’s proposal, an Impasses
Panel seemingly would be free to impose a contract term that
requires BOP to construct a secure area for controlling inmate
movement through the metal detector area, enclosed in a
15
chain link fence, or something comparable. This would be
quite ironic, because the Authority suggests that BOP has no
obligation to bargain over such a requirement.
The point here is that the Authority’s decision that the
third sentence in Proposal 2 is negotiable could result in its
imposition on the parties by an Impasses Panel. It is possible,
of course, that BOP could fail or refuse to cooperate in
impasse procedures or decline to adhere to a contract
provision imposed by an Impasses Panel requiring it to
construct the secure area. This might prompt the Union to file
an unfair labor practice charge with the Authority pursuant to
5 U.S.C. § 7116(a)(6), which would allow the Authority to
clarify its position on the meaning of the third sentence in
Proposal 2. Brewer, 735 F.2d at 1500 (noting that it is an
unfair labor practice for an agency or a labor organization “to
fail or refuse to cooperate in impasse procedures and impasse
decisions”). But the Authority has not argued here that if an
Impasses Panel imposes a contract term that requires BOP to
construct a secure area to be used as a control center for
controlling inmate movement through the metal detector area,
enclosed in a chain link fence, or something comparable, this
would be subject to review by the Authority. Therefore, we
decline to address this issue.
In sum, the Authority’s construction of the third sentence
in Proposal 2 defies reasoned decisionmaking. We therefore
hold that the Authority’s decision regarding the third sentence
of Proposal 2 is arbitrary and capricious.
VI. CONCLUSION
For the reasons given above, we deny BOP’s motion to
dismiss on grounds of mootness and its motion to vacate the
Authority’s decision and order. We grant the Authority’s
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cross-petition to enforce its decision and order regarding
Proposal 1, and we grant BOP’s petition to vacate the
Authority’s decision and order regarding the third sentence in
Proposal 2. We hereby remand the case to the Authority to
allow it to determine whether, in light of the changed
circumstances occasioned by the changed use of the metal
detectors, the order to bargain over Proposal 1 should be
revised.
SILBERMAN, Senior Circuit Judge, concurring in part. I
join the panel opinion with one exception. Counsel for the
FLRA explicitly stated at oral argument that an impasse panel
would not be able to order the petitioner to actually do
anything regarding the “should” clause. I think that statement
would certainly constitute an “unusual circumstance”
providing grounds for review of a wayward impasse panel
decision, and we should accept the Authority's assurance.
That makes the dispute over the “should” clause a tempest in
a teapot.