926 F.3d 814
D.C. Cir.2019Background
- ICE historically excluded leave days/hours when calculating employees' average weekly Administratively Uncontrollable Overtime (AUO), which increased AUO premium rates.
- OPM issued 1997 Guidance directing agencies not to reduce review-period weeks by subtracting paid or unpaid leave (among other time), clarifying AUO calculations.
- OPM later amended regulations in 2002 to add a limited set of exceptions for post-9/11 exigencies, reinforcing the default no-exclusion rule.
- Oversight reports (OSC, GAO) found ICE's practice inconsistent with OPM guidance; DHS ordered components to stop the practice.
- ICE changed its AUO calculation in May 2015 to stop excluding leave, notified the Union, and offered post-implementation bargaining; the Union grieved and an arbitrator ordered reinstatement of the old policy.
- The FLRA set aside the arbitration award, concluding ICE’s prior exclusion practice conflicted with OPM regulations/guidance and thus ICE had no duty to bargain before changing the policy; the Union petitioned for judicial review.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether ICE’s prior policy of excluding leave from AUO calculations violated OPM guidance/regulations | The 1997 Guidance bars excluding hours but not full days; longstanding authority treats exclusions as lawful | 1997 Guidance prohibits excluding leave (hours or days); 2002 regs confirm default no-exclusion rule | Court held ICE’s prior policy conflicted with OPM guidance and regulations; exclusion was unlawful |
| Whether the Authority properly refused to enforce the arbitrator’s reinstatement award as contrary to law | Union argued decades of precedent supported exclusion practice | FLRA/ICE argued those decisions are inapplicable or vacated; earlier precedents predate the 1997 Guidance | Court upheld the Authority’s setting aside of the award because the arbitrator’s order was contrary to law |
| Whether the Union preserved its statutory-interpretation challenges to the Guidance | Union raised statutory/regulatory-challenge only at oral argument | ICE/Authority argued failure to raise in briefing forfeited the challenge | Court concluded the argument was forfeited and refused to consider it |
| Whether any vacated or moot FLRA decisions create settled law permitting exclusions | Union pointed to older FLRA and other decisions and claimed settled practice | FLRA vacaturs and pre-1997 authorities do not establish controlling law after the Guidance | Court found no settled authority supporting the Union’s position and rejected the claim |
Key Cases Cited
- Al-Tamimi v. Adelson, 916 F.3d 1 (D.C. Cir. 2019) (forfeiture principle for issues not raised in opening brief)
- Elec. Privacy Info. Ctr. v. Presidential Advisory Comm'n on Election Integrity, 878 F.3d 371 (D.C. Cir. 2017) (forfeiture of arguments not properly briefed)
- Beeunas v. United States, 1 Cl. Ct. 706 (Ct. Cl. 1983) (older decision pre-dating OPM 1997 Guidance; not controlling here)
- United States v. Munsingwear, 340 U.S. 36 (1950) (mootness doctrine and vacatur of decisions rendered moot)
So ordered. Denial of Union’s petition for review affirmed.