observing that agency’s “failure to follow its own well-established precedent without explanation is the very essence of arbitrariness”
How later courts described this case
- observing that agency’s “failure to follow its own well-established precedent without explanation is the very essence of arbitrariness”
- “[T]he Authority must consider the evidence in the record before it, conduct the balanced inquiry required by the KANG line of precedent, and then reach its conclusion as to whether the proposal ‘excessively interferes’ with the agency’s internal security practices.”
- “The Authority’s failure to follow its own well-established precedent without explanation is the very essence of arbitrariness.”
Written by the judges who cited it.
The opinion
ROBERTS, Circuit Judge,
concurring.
I agree with the court that the Authority was not arbitrary and capricious in determining that the Union’s proposal implicated management’s right to determine internal security practices, 5 U.S.C. § 7106 (a)(1), and was not a negotiable “procedure,” id. at § 7106(b)(2). The court goes on to fault the Authority for finding that the proposal was not an “appropriate arrangement,” id. at § 7106(b)(3), because the Authority considered that question in light of the incorrect premise that agency policy required all employees to take their weapons home when off-duty.
The court is correct that this is not the agency policy, but it is arguable that the Authority appreciated this fact. See, e.g., 59 F.L.R.A. at 753 (“The Agency has determined ... that by not allowing storage during off-duty periods at those facilities which lack adequate security, it is reducing the risk of theft and furthering its asserted internal security practice determinations.”) (emphasis added); id. at 755 (concluding that the Union’s proposal “effectively overrid[es] the Agency’s internal security determination regarding those employees working at facilities and locations ill-equipped and, unsuitable for off-duty storage of firearms ”) (emphasis add *301 ed). At the same time, it is difficult to fault the court’s reading, given that the agency itself told the Authority below that agency “policy and practice ... never authorized routine overnight storage of issued firearms in employees’ work locations.” Agency Statement of Position at 4.
Given all this, it is reasonable to read the Authority’s analysis as the court does, and to find that analysis wanting. On remand, the Authority must consider whether the Union’s proposal is an “appropriate arrangement” in light of a correct view of the agency’s policy. I join the court’s opinion on the understanding that nothing in it precludes the Authority from concluding on remand that the proposal to provide “a lockbox or other secure and locked container” for overnight storage of firearms “at all government offices where armed employees work or are assigned,” 59 F.L.R.A. at 749 (emphasis added), completely overrides or excessively interferes with a policy of allowing overnight storage only when the agency determines security at a particular location is adequate. Cf. id. at 755 n. 5 (“The fact that the Agency provides overnight storage at some locations also constitutes a determination by management that security at those locations is safe and effective — itself an exercise of the right to determine internal security practices.”).