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UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF TEXAS

DALLAS DIVISION

CHRISTOPHER L. CRANE, et al., ))

Plaintiffs. )

) Case No. 3:12-CV-3247-Ov. )

)

JANET NAPOLITANO, et al., ))

Defendants. )

))

__________________________________________)

DEFENDANTS’ SUPPLEMENTAL MEMORANDUM ON

WHY THE CIVIL SERVICE REFORM ACT

PRECLUDES PLAINTIFFS’ REQUESTED RELIEF

Case 3:12-cv-03247-O Document 60 Filed 05/06/13 Page 1 of 22 PageID 997


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TABLE OF CONTENTS

PAGE

INTRODUCTION ...........................................................................................................................1

ARGUMENT ...................................................................................................................................2

I. The Civil Service Reform Act Precludes Jurisdiction in FederalDistrict Court for Plaintiffs’ Employment Dispute ..............................................................2

A. The CSRA’s Scheme is Comprehensive ..................................................................3

B. The CSRA’s Scheme is Exclusive ...........................................................................6

C. Plaintiffs’ Employment Dispute is Precluded by the CSRA ...................................9

II. Plaintiffs Are Not Threatened with Irreparable Harm .......................................................11

III. Injunctive Relief Must Be Limited to Redress the Alleged Irreparable

Harm ..................................................................................................................................14

CONCLUSION ..............................................................................................................................15



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TABLE OF AUTHORITIES

CASES PAGE(S)

Broadway v. Block ,

694 F.2d 979 (5th Cir. 1982) ..................................................................................... passim

Bush v. Lucas,

647 F.2d 573 (5th Cir. 1981), affirmed 462 U.S. 367 (1983) ............................................9

Califano v. Yamasaki,

442 U.S. 682 (1979) ...........................................................................................................14

Carducci v. Regan,

714 F.2d 171 (D.C. Cir. 1983) .........................................................................................5, 8

Elgin v. Dept. of Treas,132 S. Ct. 2126 (2012) ............................................................................................... passim

Fornaro v. James,

416 F.3d 63 (D.C. Cir. 2005) ...............................................................................................3

Gonzalez v. Manjarrez ,

2013 WL. 152177 (W.D. Tex. Jan. 4, 2013) .......................................................................7

Graham v. Ashcroft ,

358 F.3d 931 (D.C. Cir. 2004) .............................................................................................8

Immigration & Naturalization Serv. v. Chadha,

462 U.S. 919 (1983) .............................................................................................................7

Karahalios v. National Federation of Federal Employees, Local 1263,

489 U.S. 527 (1989) .............................................................................................................4

Lion Health Serv., Inc. v. Sebelius,

635 F.3d 693 (5th Cir. 2011) .............................................................................................14

Montgomery v. U.S. Army Corps of Engineers,

128 F. Supp. 2d 433 (S.D. Tex. 2001) .............................................................................4, 8

Morales v. Dep't of the Army,

947 F.2d 766 (5th Cir. 1991) ...............................................................................................4

Munaf v. Geren,

553 U.S. 674 (2008) .........................................................................................................1, 2



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Rodgers v. Scott ,

95 F.3d 47 (5th Cir. 1996) ...................................................................................................8

Rollins v. Marsh,

937 F.2d 134 (5th Cir. 1991) .........................................................................................2, 10

Sampson v. Murray,

415 U.S. 61 (1974) .............................................................................................................12

Schrachta v. Curtis,

752 F.2d 1257 (7th Cir. 1985) .............................................................................................5

Smith v. Department of the Army,

458 F.3d 1359 (Fed. Cir. 2006)..........................................................................................13

Tores v. U.S. Social Sec. Admin.,

2001 WL. 1602160 (E.D. La. Dec. 13, 2001) ......................................................................7

Towers v. Horner ,791 F.2d 1244 (5th Cir. 1986) .............................................................................................8

United States v. Fausto,484 U.S. 439 (1988) ................................................................................................... passim

Winter v. Natural Res. Def. Council, Inc.,555 U.S. 7 (2008) ...............................................................................................................13

STATUTES

5 U.S.C. § 1214(a)(1) ...............................................................................................................11, 12

5 U.S.C. § 1214(a)(3) ............................................................................................................. passim

5 U.S.C. § 1214(c) .................................................................................................................2, 5, 11

5 U.S.C. § 2302(b)(8) ......................................................................................................................2

5 U.S.C. § 2302(b)(9)(D) ....................................................................................................... passim

5 U.S.C. § 7103(a)(9)(C)(ii) ..........................................................................................................13

5 U.S.C. § 7106(a)(2)(B) .................................................................................................................4

5 U.S.C. § 7121 ......................................................................................................................4, 5, 11



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5 U.S.C. §§ 7501-7504 ..................................................................................................................13

5 U.S.C. §§ 7511-7514 ..................................................................................................................13

5 U.S.C. § 7512 ................................................................................................................................4

5 U.S.C. § 7513 ................................................................................................................................4

5 U.S.C. § 7702 ................................................................................................................................4

5 U.S.C. 7703(b) .................................................................................................................... passim

The Civil Service Reform Act of 1978,

Pub. L. No. 95-454, 92 Stat. 1111 (1978) ............................................................................3

Whistleblower Protection Enhancement Act of 2012,

Pub. L. No. 112-199, § 101, 126 Stat. 1465, 1465 (2012) .................................................11

RULES AND REGULATIONS

5 C.F.R. § 752.203 .........................................................................................................................13



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INTRODUCTION

This Court’s Order of April 23, 2013, requested supplemental briefs addressing

the effect of the Civil Service Reform Act (“CSRA”) and the U.S. Immigration and

Customs Enforcement (“ICE”) Collective Bargaining Agreement (Agreement 2000

between U.S. Immigration and Naturalization Service and American Federation of

Government Employees (“AFGE”) Local 118, National Immigration and Naturalization

Service Council (referred to hereinafter as “CBA”)) on this Court’s jurisdiction and as to

whether Plaintiffs can demonstrate irreparable harm. For the reasons explained below,

this Court is without jurisdiction to review this action under the CSRA, and, further,

Plaintiffs cannot demonstrate irreparable harm.

In its January 24, 2013, ruling granting in part Defendants’ Motion to Dismiss,

this Court concluded that the only cognizable injury Plaintiffs have standing to pursue is

the prospect that they may be subject to some sort of disciplinary action for violating

Department of Homeland Security (“DHS”) policy. See Mem. Op. and Order (Dkt. #41)

at 18-22. As such, this action is a quintessential employment dispute that is foreclosed by

the CSRA. The Supreme Court has repeatedly held that the remedies established by the

CSRA are the exclusive means of redressing employment disputes involving federal

employees, even when these disputes are styled as constitutional or other types of claims,

and that the CSRA precludes review in district court. See Elgin v. Dep’t of Treas, 132

S.Ct. 2126, 2133-36 (2012); United States v. Fausto, 484 U.S. 439, 455 (1988).

As a result of the broad, preclusive effect of the CSRA this Court should dismiss

this action outright. See Munaf v. Geren, 553 U.S. 674, 692 (2008) (finding it

appropriate to “terminate the litigation” at the preliminary injunction stage if the



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“Government is entitled to judgment as a matter of law”). Additionally, the CSRA

demonstrates why preliminary relief is inappropriate in this case: Plaintiffs have a variety

of forms of relief under the CSRA, and they should seek their relief through

administrative means and potentially through the Federal Circuit Court of Appeals.

ARGUMENT

I. The Civil Service Reform Act Precludes Jurisdiction in Federal District

Court for Plaintiffs’ Employment Dispute.

The CSRA remedies are the “comprehensive and exclusive procedures for settling

work-related controversies between federal civil service employees and the federal

government.” See Rollins v. Marsh, 937 F.2d 134, 139 (5th Cir. 1991). Plaintiffs’

employment dispute in this action – fear of discipline based on a disagreement with their

federal employer about how properly to interpret the law – is directly addressed by the

CSRA. Just last year, in the Whistleblower Protection Enhancement Act of 2012,

Congress amended the CSRA to allow federal employees to bring individual rights of

action appeals before the Merit Systems Protection Board (“MSPB”), that ultimately are

subject to judicial review in the Federal Circuit,1 to challenge personnel actions or threats

of personnel actions “for refusing to obey an order that would require the individual to

violate a law.” 5 U.S.C. § 2302(b)(9)(D); id . §§ 1214(a)(3), (c), 7703(b)(1). This case is

therefore directly foreclosed by the Supreme Court’s decision in Elgin from last term,

which held that CSRA preclusion unquestionably applies when the CSRA establishes

administrative and judicial remedies. See Elgin, 132 S.Ct. at 2133.

1 The Whistleblower Protection Enhancement Act further provides that appeals from the

MSPB that exclusively allege a violation of sections 2302(b)(8) or (b)(9) claims may be

brought in either the Federal Circuit or other court of appeals of competent jurisdiction. 5

U.S.C. § 7703(b)(1)(B).



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Before addressing the impact of the CSRA as to the facts of this particular case,

however, it is important to note the full breadth of the CSRA. See, e.g., Fausto, 484 U.S.

at 448-49 (holding that the CSRA is exclusive even when there is no administrative or

judicial remedy). As discussed below, Congress intended the CSRA to be the

comprehensive and exclusive scheme of administrative and judicial review for federal

employment disputes, balancing the legitimate interests of various federal government

employees with “the needs of sound and efficient administration.” Id. at 445. The

administration of government is tied directly to the actions taken by public employees

carrying out their duties. Against this backdrop, Congress established a system in which

disputes, such as this one, that arise from disagreements about an employee’s duties or

potential discipline could only be adjudicated through the procedures outlined by the

CSRA. See, e.g., Broadway v. Block , 694 F.2d 979, 986 (5th Cir. 1982) (comprehensive

scheme of the CSRA cannot be circumvented by bringing a lawsuit under the

Administrative Procedure Act). Channeling such disputes through the process

established by the CSRA – and not allowing them to proceed directly in district court – is

required even where the government employees’ lawsuit purports to be a “systemic

challenge” to government policy, rather than a challenge to a disciplinary action. See

Fornaro v. James, 416 F.3d 63, 68-69 (D.C. Cir. 2005) (Roberts, J.).

A. The CSRA’s Scheme is Comprehensive.

The Civil Service Reform Act of 1978, Pub. L. No. 95-454, 92 Stat. 1111, as

amended, codified throughout Title 5, “replaced the [previous] patchwork system with an

integrated scheme of administrative and judicial review, designed to balance the

legitimate interests of the various categories of federal employees with the needs of



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sound and efficient administration.” Fausto, 484 U.S. at 445. Collective bargaining

procedures are part of the CSRA’s comprehensive scheme. See 5 U.S.C. § 7121; see also

Morales v. Dep’t of the Army, 947 F.2d 766, 768 (5th Cir. 1991); Montgomery v. U.S.

Army Corps of Engineers, 128 F. Supp. 2d 433, 435 (S.D. Tex. 2001); Karahalios v.

National Federation of Federal Employees, Local 1263, 489 U.S. 527 (1989) (CSRA

precludes action challenging violation of duty of fair representation under a collective

bargaining agreement).

The exhaustive scheme of the CSRA covers the entire scope of the federal

employment relationship, even beyond personnel actions. For example, the CSRA

provides management the right to assign work, see 5 U.S.C. § 7106(a)(2)(B), and to

establish performance appraisal systems, see id . § 4302. See also Fausto, 484 U.S. at 445

(addressing personnel actions taken in light of appraisal system).

For personnel actions, different review procedures govern depending on the

nature of the personnel action, see id ., 484 U.S. at 445-447; see also Broadway, 694 F.2d

at 981-83:2

• An adverse action – that is, a removal, a suspension for more than 14 days, a

reduction in grade, a reduction in pay, or a furlough of 30 days or less, 5 U.S.C.

§ 7512 – may be appealed directly to the MSPB, with judicial review of the

Board’s decision in the Court of Appeals for the Federal Circuit. Id . §§ 7513(d),

7703(b)(1).

• Corrective action for a prohibited personnel practice, id . § 2302(b) –

2 Only claims of discrimination against government employees, claims which Plaintiffs

do not assert in this action, may be brought in district court through separate anti-

discrimination statutes as specifically provided for by the CSRA, 5 U.S.C. §§ 7702,

7703(b)(2). See Broadway, 694 F.2d at 983.



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including personnel actions or threats of personnel actions based on an allegation

of a violation of any law, rule, or regulation, id . § 2302(b)(9)(D) – must first be

sought in the Office of Special Counsel (“OSC”), unless the action is directly

appealable to the MSPB. Id . § 1214(a)(3). If the employee is dissatisfied with the

OSC’s determination, the employee may seek corrective action from the MSPB in

certain instances, followed by judicial review in those instances before the Court

of Appeals for the Federal Circuit. Id . §§ 1214(a)(3), (c); 7703(b)(1).

• All other minor personnel actions “are left to agency discretion.” Schrachta v.

Curtis, 752 F.2d 1257, 1259 (7th Cir. 1985); see Carducci v. Regan, 714 F.2d

171, 174-75 (D.C. Cir. 1983) (stating that “some types of nonmajor personnel

action” are “deemed committed to agency discretion by law”) (internal quotation

marks omitted); see also Broadway, 694 F.2d at 986 (finding federal employment

decisions that are not subject to review are left to agency discretion).

• Collective bargaining grievances for bargaining employees are subject to the

procedures established in the applicable collective bargaining agreement. See 5

U.S.C. § 7121. These procedures must include the availability of binding

arbitration. See id . § 7121(b)(1)(C)(iii). Disciplinary actions, regardless of their

duration, must be covered under the collective bargaining agreement’s grievance

procedures. See id . § 7121(b)(2)(B).3 In addition, bargaining employees have

available the CSRA appeal rights established for adverse actions and prohibited

personnel practices. See id . §§ 7121(d); 7121(e).

3 Either a federal agency or union can file exceptions to an arbitrator’s award with the

Federal Labor Relations Authority, and if the grievance also alleged an unfair labor

practice, review is available in the Court of Appeals for the D.C. Circuit. See id. § 7123.



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B. The CSRA’s Scheme is Exclusive.

The CSRA scheme is exclusive for federal employment claims regardless of the

precise nature of the review available. See Fausto, 484 U.S. at 448-49 (“It seems to us

evident that the absence of provision for [certain] employees to obtain judicial review is

not an uninformative consequence of the limited scope of the statute, but rather

manifestation of a considered congressional judgment that they should not have statutory

entitlement to review for adverse action”).

In Fausto, the Supreme Court held that the CSRA precluded jurisdiction even

though the particular action at issue could not give rise to either administrative or judicial

review. See Fausto, 484 U.S. at 443-44. The Supreme Court found that the CSRA

provided employees in plaintiff’s employment situation with some “limited, and in some

cases conditional, rights.” See id . at 445. But, whatever precise rights were implicated,

the Supreme Court still applied CSRA preclusion even though the CSRA was void of any

available administrative or judicial review for the plaintiff. See id . at 455 (“The CSRA

established a comprehensive system for reviewing personnel action taken against federal

employees,” and its “deliberate exclusion of employees in respondent's service category

from the provisions establishing administrative and judicial review for personnel action

of the sort at issue here prevents respondent from seeking review.”).

Just last term, in Elgin, the Supreme Court reaffirmed the holding in Fausto and

found that CSRA exclusivity covers constitutional claims. See Elgin, 132 S.Ct. at 2133-

34 (“Nothing in the CSRA’s text suggests that its exclusive review scheme is

inapplicable simply because a covered employee challenges a covered action on the

ground that the statute authorizing that action is unconstitutional.”). In that case, an



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employee tried to circumvent the CSRA’s exclusive scheme, and brought a constitutional

challenge to his discharge from federal employment. See id . 2131-32. The Supreme

Court found that the “CSRA's objective of creating an integrated scheme of review would

be seriously undermined if, as petitioners would have it, a covered employee could

challenge a covered employment action first in a district court, and then again in one of

the courts of appeals, simply by alleging that the statutory authorization for such action is

unconstitutional.” Id . at 2135.4 The CSRA forecloses claims alleging constitutional

injuries regardless of whether judicial review is available under the CSRA. See Gonzalez

v. Manjarrez , 2013 WL 152177 at *5-*6 (W.D. Tex. Jan. 4, 2013); see also Elgin, 132 S.

Ct. at 2136 (“[W]e conclude that the better interpretation of the CSRA is that its

exclusivity does not turn on the constitutional nature of an employee’s claim, but rather

on the type of the employee and the challenged employment action.”).

The CSRA’s extensive preclusive effect is a direct manifestation of Congress’s

intent in designing that statute. “Congress did not neglect expressly to create a judicial

remedy where it wanted one to exist. In balancing conflicting needs for efficiency and

employee protection, it chose to make certain severe personnel actions, namely ‘adverse

actions,’ subject to judicial review, while leaving other ‘personnel actions,’ including

reassignments, to administrative discretion.” Broadway, 694 F.2d at 984; accord Tores

v. U.S. Social Sec. Admin., 2001 WL 1602160 at *2 (E.D. La. Dec. 13, 2001) (applying

the CSRA to a collective bargaining agreement).

Plaintiffs mistakenly believe that, under the CSRA, this Court lacks jurisdiction

4 Here, Plaintiffs have not even alleged any constitutional injury but instead assert their

statutory claims as separation-of-powers claims. See Immigration & Naturalization Serv.

v. Chadha, 462 U.S. 919, 954 n.16 (1983) (holding that statutory claims are to be

reviewed subject to the authority of that statute).



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only for the subset of disputes that are subject to review by the MSPB and ultimately the

Federal Circuit. See Plaintiffs’ Reply in Support of their Application for Preliminary

Injunction at 10 (Dkt. # 36) (contending that the CSRA covers only actions subject to the

MSPB). “‘[T]he exhaustive remedial scheme of the CSRA,” however, would be

“impermissibly frustrated” if CSRA exclusivity did not cover “lesser personnel actions,’”

and only applied to those actions subject to the MSPB and judicial review. See Towers v.

Horner , 791 F.2d 1244, 1246 (5th Cir. 1986) (quoting Carducci, 714 F.2d at 174), accord

Montgomery, 128 F. Supp. 2d at 437; Graham v. Ashcroft , 358 F.3d 931, 934-35 (D.C.

Cir. 2004) (Roberts, J.) (applying CSRA preclusion to lesser personnel actions not

subject to administrative or judicial review). Indeed, it would turn the comprehensive

and exclusive nature of the CSRA on its head if lesser (and more frequent) personnel

actions could be litigated freely and evade the CSRA’s administrative and judicial review

procedures, while only the subset of more serious (and less frequent) personnel actions

triggered the CSRA’s preclusive effect.

For similar reasons, Plaintiffs “may not circumvent the detailed scheme of the

CSRA by invoking the more general [Administrative Procedure Act (‘APA’)].” See,

e.g., Rodgers v. Scott , 95 F.3d 47 at *1 (5th Cir. 1996) (unpublished) (citing Broadway,

694 F.2d at 979); see also Graham, 358 F.3d at 934-35 (comprehensive scheme of the

CSRA precludes FBI special agent’s APA suit claiming that the FBI violated its own

regulations in taking personnel action against him with respect to surveillance operation).

The CSRA precludes an action under the APA, regardless of the remedy available under

the CSRA. See Broadway, 694 F.2d at 986 (finding the CSRA exclusive and precluding

APA review even though under the CSRA “[s]ome agency actions are reviewable by



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circuit courts, some by district courts, and some by no court at all”). “[A]llowing suit

under the APA would likewise ‘encourage aggrieved employees to bypass the statutory

and administrative remedies in order to seek direct judicial relief and thereby deprive the

Government of the opportunity to work out its personnel problems within the framework

it has so painstakingly established.’” Id. (quoting Bush v. Lucas, 647 F.2d 573, 577 (5th

Cir. 1981), affirmed 462 U.S. 367 (1983)).

C. Plaintiffs’ Employment Dispute is Precluded by the CSRA.

The only injury that remains for Plaintiffs to pursue in this action is a question of

discipline, a typical employment dispute; accordingly, Plaintiffs’ action is appropriately

precluded by the CSRA. This Court has found that Plaintiffs have standing only because

of their potential exposure to discipline. Any challenge to discipline, or even a threat of

discipline, would constitute an employment dispute of a type that must necessarily

proceed through the CSRA. See supra, at 2-8; see also, e.g., Elgin, 132 S.Ct. at 2133-36.

The clear and exclusive applicability of the CSRA in this case is evident from this

Court’s ruling on Defendants’ motion to dismiss. In ruling on Defendants’ motion to

dismiss, this Court concluded that the only injury Plaintiffs could assert sufficient to

confer standing was premised in the risk that Plaintiffs might be subject to discipline

based on their proclamation that they intended to violate their supervisor’s instructions as

an unlawful order. See Mem. Op. and Order at (Dkt. #41) at 21-22 (“The Court finds that

the potential disciplinary action that results from failing to comply with the Directive and

the Morton Memorandum constitutes a sufficient injury-in-fact to satisfy the

constitutional requirements of standing.”). This Court specifically rejected any other

claimed injury – and for that matter standing – that would result from Plaintiffs’



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compliance with their supervisors’ instructions as a basis for the lawsuit to proceed. See

id . at 16 (“Because the ICE Agent Plaintiffs have not alleged that any negative

consequence apart from the violation of their oath will flow from complying with the

challenged Directive and Morton Memorandum, they have failed to allege a sufficient

injury-in-fact under the Fifth Circuit’s interpretation of violation-of-oath standing.”)

(emphasis in original).5 Here, Plaintiffs have several avenues to address claims of

unlawful discipline and the CSRA’s exclusive scheme requires Plaintiffs to pursue those

avenues. See, supra, at 4-5; see, infra, at 11-14.

Further, because of the administrative and judicial review available to address

Plaintiffs’ claims, Plaintiffs’ action is directly foreclosed by the Supreme Court’s holding

in Elgin from last term. In Elgin, the Supreme Court held that CSRA preclusion applies

for situations in which the CSRA provides administrative and judicial remedies,

especially considering that CSRA preclusion applies in situations for which there are no

administrative or judicial remedies. See Elgin, 132 S. Ct. at 2133 (“Just as the CSRA's

‘elaborate’ framework demonstrates Congress’ intent to entirely foreclose judicial review

to employees to whom the CSRA denies statutory review, it similarly indicates that

extrastatutory review is not available to those employees to whom the CSRA grants

administrative and judicial review.”) (citing Fausto, 484 U.S. at 443) (emphasis in

original).

Last year, Congress amended the CSRA so that the Office of Special Counsel’s

disposition regarding an employee’s refusal to obey an allegedly unlawful order ( i.e.,

5 Even if Plaintiffs’ action could somehow be segregated from potential discipline, which

it cannot, and related solely to Plaintiffs’ disagreement with their supervisors’ legal

interpretations, this action would still be precluded. See Rollins, 937 F.2d at 139 (CSRA

remedies are exclusive for all federal work-related controversies).



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Plaintiffs’ claim here) is now reviewed by the MSPB and then is subject to judicial

review by the Federal Circuit. See Whistleblower Protection Enhancement Act of 2012,

Pub. L. No. 112-199, § 101, 126 Stat. 1465, 1465 (2012) (codified at 5 U.S.C. §

1214(a)(3)).6 Thus, Congress has granted Plaintiffs review procedures under the CSRA

which specifically provide for redress for personnel actions or thr eats of personnel

actions based on an unlawful order , first upon seeking review with the Office of Special

Counsel, and after such proceedings, the right to appeal to the MSPB and eventually the

right to appeal to the Federal Circuit. See 5 U.S.C. §§ 2302(b)(9)(D); 1214(a)(1);

1214(a)(3); 1214(c); 7703(b)(1). This statutory scheme is still available to each of the

Plaintiffs here even though the CBA provides them collectively with separate grievance

procedures. See 5 U.S.C. § 7121(d). Accordingly, just as in Elgin, this Court is without

jurisdiction.

Because Plaintiffs are bringing an employment dispute precluded by the CSRA,

this Court lacks jurisdiction over all of Plaintiffs’ claims and should deny Plaintiffs’

preliminary injunction motion, and should proceed to dismiss Plaintiffs’ action.

II. Plaintiffs Are Not Threatened with Irreparable Harm.

Given the procedural protections available under the CSRA’s exclusive legal

framework, Plaintiffs cannot demonstrate that they face a cognizable imminent threat of

irreparable harm justifying injunctive relief in this forum.

6 The 2012 amendments explicitly provide employees with right to appeal for corrective

action from the MSPB based on an unlawful order (as described by 5 U.S.C. §2302(b)(9)(D)) after an employee seeks review with the Office of Special Counsel. See 5

U.S.C. §§ 1214(a)(3). A final order or decision of the MSPB is then subject to judicial

review. Id . §§ 1214(c); 7703(b)(1).



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Even apart from the jurisdictional question, the availability of remedies under the

CSRA means that Plaintiffs do not face a cognizable imminent threat of irreparable harm.

The only cognizable harm as defined by the Court in its January 24, 2013 Order (Dkt

#41) is that of potential disciplinary action for failure to comply with the challenged

memoranda. However, none of the ten Plaintiffs are subject to any discipline or face any

imminent threat of disciplinary or other adverse action. In addition, “the Government has

traditionally been granted the widest latitude in the ‘dispatch of its own internal affairs,’”

and preliminary injunctive relief is disfavored before Plaintiffs have exhausted their

available remedies. See Sampson v. Murray, 415 U.S. 61, 83-84 (1974). To the extent

that one of the ICE officers later faces disciplinary action, the CSRA provides exclusive

and sufficient remedies.

The CSRA affords Plaintiffs robust opportunities to review whatever discipline –

i.e., whatever harm – might be imposed. See Sampson, 415 U.S. at 90 (“[T]he possibility

that adequate compensatory or other corrective relief will be available at a later date, in

the ordinary course of litigation, weighs heavily against a claim of irreparable harm.”). It

cannot be disputed that Plaintiffs have procedures to challenge discipline or threats of

potential discipline based on violations of law. See 5 U.S.C. § 2302(b)(9); §§ 1214(a)(1)

(Office of Special Counsel); 1214(a)(3) (MSPB); 7703(b)(1) (Federal Circuit). Further,

given that no Plaintiff is in fact subject to discipline, it is speculative what disciplinary

proceedings would apply but, regardless, any such discipline would proceed within the

scheme established by Congress. There are procedures available for minor personnel

actions; this is the process that Plaintiff James Doebler utilized to respond to his proposed

suspension of three days, which was ultimately reduced to a non-disciplinary letter of



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counseling. See Declaration of Michael Ellis, Attachment G to Defs.’ Opp. Pls.’ App. for

Prelim. Inj. (Dkt #34-7) ¶¶ 7-10; 5 U.S.C. §§ 7501–7504.7 Further, there are

administrative procedures and eventually review in the Federal Circuit for major

personnel actions. See Ellis Decl.¶ 12; 5 U.S.C. §§ 7511–7514.8

In addition to the other CSRA remedies, Plaintiffs have available multi-step

grievance procedures, including the availability of arbitration, under their CBA. Under

Article 31 of the CBA, a bargaining unit member could grieve a disciplinary action, of

any duration, through the procedures articulated in Article 47 of the CBA. See Ellis

Decl., Ex. A at 59-62, 90-97 (Articles 31 and 47 of CBA)).

9

Further, the CBA’s

grievance procedures cover “any claimed violation, misinterpretation, or misapplication

of any law, rule, or regulation affecting conditions of employment.” See id .; see also 5

U.S.C. § 7103(a)(9)(C)(ii). Arbitration procedures are also ultimately available through

Article 48 of the CBA. See Ellis Decl., Ex. A at 97-100 (Article 48). This backdrop of

procedural opportunities demonstrates that any potential harm to Plaintiffs can be

reviewed (i.e., repaired) through the scheme designed by Congress as the exclusive

avenue for reviewing these types of disputes.

7 Mr. Doebler was given notice of his proposed suspension and an opportunity to provide

an answer in accordance with 5 C.F.R. § 752.203. See Ellis Decl., Ex. B (Notice of

Proposed Suspension pursuant to “Title 5 of the Code of Federal Regulations, Part 752”).8 If the employee prevails in a challenge to an adverse action, the MSPB is authorized to

order reinstatement, backpay, and attorney fees. Elgin, 132 S. Ct. at 2130. If the MSPB

sustains the adverse personnel action, the employee has a right of appeal to the FederalCircuit, which has plenary authority to set the agency act aside and to order appropriate

relief. Id .; Smith v. Dep’t of the Army, 458 F.3d 1359, 1364 (Fed. Cir. 2006); 5 U.S.C. §

7703(b). Absent clear demonstration of irreparable harm, a preliminary injunction is

improper. See Winter v. Natural Res. Def. Council, Inc., 555 U.S. 7, 22 (2008).9 Article 47 provides three levels of grievance: (1) informal oral grievance with

immediate supervisor; (2) written grievance to designated official; and (3) another written

grievance to a higher level designated official.



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Beyond individual Plaintiffs seeking relief through the CSRA, Plaintiff Crane has

filed a national grievance on behalf of the Union concerning the Morton Memorandum.10

The Union has affirmatively asserted that Plaintiffs’ injury is repairable (i.e., the Union

has specifically requested that an arbitrator order the agency to rescind the policy and

enter into union negotiations before DHS can reinstitute the policy, see Exhibit A).

The CSRA provides for several different opportunities for administrative and

judicial review. Accordingly, Plaintiffs cannot meet their burden in establishing

irreparable harm absent a preliminary injunction.

III. Injunctive Relief Must Be Limited to Redress the Alleged Irreparable Harm.

This question of irreparable harm directly implicates what relief should be

available at the preliminary injunction stage. Defendants contend that any injunctive

relief is inappropriate because this Court is without jurisdiction to review this action and

because Plaintiffs cannot carry their burden of demonstrating an entitlement to

preliminary relief. That said, if this Court disagrees, this Court should follow the

“general principle [that] ‘injunctive relief should be no more burdensome to the

defendant than necessary to provide complete relief to the plaintiffs.’” See Lion Health

Serv., Inc. v. Sebelius, 635 F.3d 693, 703 (5th Cir. 2011) (quoting Califano v. Yamasaki,

442 U.S. 682, 702 (1979)). Plaintiffs’ proposed relief is in no way tailored to the

threatened disciplinary action, which is the only possible injury that the Court concluded

might be redressed through this lawsuit. Instead, Plaintiffs have asked this Court to

10 See NATIONAL LEVEL GRIEVANCE: Agency Refusal to Bargain the Memorandum

titled “Exercising Prosecutorial Discretion Consistent with the Civil ImmigrationEnforcement Priorities of the Agency for the Apprehension, Detention, and Removal of

Aliens” and the related policies and associated training programs (Nov. 6, 2012)

(attached hereto as Exhibit A).



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enjoin even those portions of the challenged memoranda that (i) are not at issue in this

case and (ii) that this Court has recognized as related to areas of immigration enforcement

in which the federal government has unquestioned enforcement discretion. Mem. Op.

and Order at 24 (Dkt #58) (“DHS’s ability to exercise its discretion at later stages in the

removal process by, for example, cancelling the Notice to Appear or moving to dismiss

the removal proceedings, is not at issue in the present case, and nothing in this Order

limits DHS’s discretion at later stages of the removal process.”).

Accordingly, should this Court, after concluding that all four factors weigh in

Plaintiffs’ favor, determine that it is required to provide preliminary relief to these

Plaintiffs, Defendants respectfully submit that any preliminary injunction be limited to

only enjoin discipline of the named Plaintiffs.

If the Court enters an injunction, Defendants respectfully request a temporary stay

of thirty days to permit consultation with the Solicitor General concerning whether to

appeal and whether to seek a stay pending appeal.

CONCLUSION

Defendants request this Court to dismiss this action or, in the alternative, deny

Plaintiffs’ Application for a Preliminary Injunction.

Dated: May 6, 2013 Respectfully Submitted,

STUART F. DELERY

Acting Assistant Attorney General

SARAH R. SALDANA

United States Attorney



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IAN HEATH GERSHENGORN

Deputy Assistant Attorney General

DIANE KELLEHER

Assistant Branch Director

U.S. Department of JusticeCivil Division, Federal Programs Branch

/s/ Adam D. KirschnerADAM D. KIRSCHNER (IL Bar No.

6286601)

BRADLEY H. COHEN (DC Bar No.495145)

Trial Attorneys, Federal Programs Branch

U.S. Department of Justice, Civil Division20 Massachusetts Avenue, N.W.

Washington, DC 20530(202) 353-9265

[email protected]@usdoj.gov

Counsel for Defendants



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CERTIFICATE OF SERVICE

I hereby certify that on May 6, 2013, I electronically filed the foregoing with the

clerk of the court for the U.S. District Court, Northern District of Texas, using the

electronic case filing system of the court. I also certify that a copy of this document was

served upon all opposing parties, or their attorneys of record, by electronic delivery on

the 6th day of May, 2013.

/s/ Adam D. KirschnerADAM D. KIRSCHNER



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EXHIBIT A

Case 3:12-cv-03247-O Document 60-1 Filed 05/06/13 Page 1 of 8 PageID 1019


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