her sleep the morning may please the court my name is kelly cindy and i represent the petitioner united state capitol police congress vested the capitol police board c p b and the chief of police officer for that reason congress and acted the special rule on terminations which governs the terminations of u s e p a employees further congress applied to employees covered by the congressional accountability act provisions of the federal service labor management relations statute that courts have interpreted as limiting an employee's rights or abilities to decision in this case is inconsistent with the statutory provisions the u s e p a had no obligation to comply with a may thirteenth two thousand and fourteen arbitration award to duty as a us e p police officer so there was no unfair labor practice that is our position because the arbitration award because the arbitrator had no jurisdiction relationship with the captain who seems to be interpreted i'm saying that the statutory provisions should be interpreted that way the statutory provisions of the special rule on terminations that apply to the united states capit agreement it can exist with function that is going to have a second argument which i take as a subject matter jurisdiction argument typically when you say in the case of terminations here there has already been a decision correct absolutely and then i understand you have a timeliness issue as well as to whether or not the under labor practice which goes to the refusal to follow the overture is work whether that was timely filed by your adversary because it wasn't timely file now and there's a sit in goes away as well that is correct but has essentially three arguments that is correct you have a little argument based on whether or not a summary judgment standard was properly applied the fleshing out our position essentially is that terminations are specifically provided for by the special rule as such they're not conditions of employment that are subject to the negotiated agreements procedures under section seventy one twenty the reason we were arrived at this conclusion is because the special rule requires the chief of police to submit to the c p b any terminations recommendation for a u s m p employee authority to approve or disapprove of that terminations recommendation for that reason our position is that is the c p being that has final authority to determine whether or not a u employee will continue to wear the uniform of a u s c officer it is true that the statute does not specifically state that the decisions of the c p b are not reviewable by an arbitrator but it does not need to state that is our position and the reason it does not need to state that is because the c p b is not subject to the c s requirements concerning the labor management relations provisions that have been  to review by an arbitrator and in this case you have an arbitrator who made the determination after the c p p and the chief made a determination as to determination and that arbitrator reversed despite finding that the an arbitrator comes along and says no i believe for whatever reason whatever standards i'm applying that mr rankin can continue to be a a us c p officer and instead of terminations i'm going to impose a thirty day suspension that's the inherent tension between the special rule and terminations and which congress gave to this this entity that is outside of the us c p which consists of the sergeant of sergeant at arm chambers who are elected by the senate and house respectively and the office the architect of the office of the architect of the capitol these three these three people who have been in arbitrator therefore reversed that decision again this is the inherent tension that we are pointing out that clearly by creating a special rule on terminations congress intended the c p be and not to give them the same rights that it employs in the executive branch exercise however in looking at what statute statutory provisions to adopt under the ca the congress specifically chose not to adopt an m s p b type of system and they had that option there was there was evidence or testimony before them concerning how m s p be like system would i suppose my point here is that i don't think choosing not to create a system in it that applies to us c p employees is silence because they as i said they've created such a system for other entities within the legislative bra different structure what are a call from the legislative history of the c a a as it applies to the federal labor management relations statute was that they intended for the employees of the legislat branch to have the same rights that those under the executive branch have i don't recall any mention of permitting an arbitrator to be the final authority with respect to arbitrations of terminations and specifically for congressional branch employees under the i a e a congress was very specific that when employees and this branch the executive branch were permitted to raise huge issue to to raise appeals in the judicial body that they also intended for employees in the legislative branch to exercise those same rights however because they didn't adopt the m s p b process there is no subsequent process but this was never contemplated when congress adopted provisions of the cia in terms of whether or not an employee who was raising a terminations appeal they didn't specifically address that question is what i'm trying to say here then in the legislative history there is no contemplation about what would occur if an employee who an arbitrator made a decision and that employee rule because it deals with terminations simply says this is not a proper subject matter for going to murder her remote so with that i want to turn to section seventy one twenty one and the fastow decisions if there are no question to enter into this agreement after that that you see it was an act and if you follow the approach of this court typically takes you look at the statutes that apply to the capitol police and not to the status of don't apply reason speculate as to why they don't apply suspended with or without pay discipline discharge and set the terms conditions and privileges of employment of employees of the capitol police subject to in accordance with the political laws and regulations this is a very broad of discretionary authority to the police chief and there is simply nothing in this language that prevents the chief from deciding that simply it's in the best interests interests of his department to decide that arbitration of removals is the way try to make all the rules uniform so that the rules of the architect of the capitol are a much different than the capitol police rules then the library of congress is rules and for the most part the rules are by regulation or by the collective bargaining agreement and there's nothing really in the language that they pass that restricts the ability to negotiate put that in the collective bargaining thing and again when you look at the special rule the special rule again is not a very serious rise up to the level of regulation never again i get that that would that would be a problem but of course obviously the chief of police when he entered into the agreement would believe at the time it did not conflict with the regulation and i can't imagine a chief you know agreed to something that was contrary to his own regulations the seems to me that the language that we have though seems to be a grant the authority and the only restriction is that prior to removing somebody yes to get either an implicit or explicit approval from the capitol police more but it's still his decision there's nothing in that that that specific language that that language is the chief may terminate an officer member or employee only after the chief has provided notice of the chairman issue the capitol police board in such manner as the board may from time to time require and it's also i think worthwhile to point out that there are limitations on that authority otherwise you know in other places in the stash so in one thousand twenty one a one but it's a very specifically that the capitol police board and the chief of the capitol police so have the sole and exclusive authority to to determine various types of compensation and then they go on to say that the determination of a rate or amount described may not be subject to review or appeal in any manner so what you  have is language further on in the statute that says these are areas where there cannot be any review very specific language saying this is a decision that the board must make the capitol police can make and nobody else as any review and you do not see that language when it comes to terminations or remov at the back and one of the false arguments there i think the one thing i think to bear in mind is that the congress responded to foster by passing that the civil service due process amendments of one thousand nine hundred which in fact restored the rights to employees like also who did not have the right to appeal and i think that's why you don't see any circuit court decisions after nine hundred ninety the expose the fossil type of line of reasoning so what  false you had a very carefully reasoned decision that said you had an employee who was given some rights under chapter forty five of title five but was denied certain other rights your chapter forty forty five of title five of forty three of title twenty one each one which is simply a choice of form provision basically it says that if you choose one form you can't let it really gaitered in the other form you have seventy one twenty one half which again allows for direct review the second certain sense that the standard is when the department failed to comply with an arbitration or the cause of action or could when the department first had an opportunity to comply with that work again if you read the decision they decided just the opposite what they said is that the statute does not begin when are when the average duration or became final factor begins when they fail to comply or notify them that they fail to comply and then the third sentence they go on to say that they adopted two points one is that it occurs when it is expressly when a party express lee rejects its obligation to comply with the award or to simply fail to take the steps ordered by the work again they do it up they do  you make two points but the second point is not accurately stated the second point if you read the cases when award establishes a deadline for implementing obligations required by the war and the deadline passes without the party  up on review to actually petition for in force one as well so the issue doesn't come back to you in another form so if we have especially where you have a party that's demonstrated a reluctance to comply with any orders from the from the compliance more  be well unless there is an order from the court there up for compliance there would be no contempt i mean the our board cannot enforce a contempt proceedings we knew we needed a court order in order to have to come back to us think the purpose of filing the petition for enforcement is so that whatever argument they have for not complying with the words addressed here rather than having another proceeding for that then that's the reason why it's routinely done in and in many circuits all that is and usually the background i can address the time in this issue as well and that this is exactly what the parties the way this is worked through this process is exactly what the parties are going for in their collective bargaining agreement the events that  this heavily litigated case were seven years ago back in two thousand and eleven there's been three appeals to the opposite of compliance or through this process and a few things to keep in mind when considering all this is that prior to the events at at issue here you never received any just one in six years in the u s up a police force and since then and the time that he has been  parties bargained for in their collective bargaining agreement they anticipated that terminations in arbitrations involving terminations would be considered under section thirty two point one three of their collective bargaining agreement detailing when the date of a fine decision would be for removal of a us p employee from the payroll they also arm in defining the purpose of discipline and it's not solely to punish the employer that they're going to consider progress and discipline that removal was the severest form of discipline that the department can use and then the very next action to dress that this covers actions involving command discipline including removals and basically what the arbitrator simply did was apply that contract to ensure that the department and the chief in making his determination to terminate this employer di they have the option of an appeals process in the legislation is that an option of appeals process or a negotiated grievance procedure and here as we've discussed there is no innes p p type  and so the negotiated grievance procedure is what would be used for terminations and that is what is it was used in this case and in other cases also here the c p b is not be employing authority agencies they do not have the final authority on terminations they cannot determine who should be terminated or when or what they can only act on the decisions made by the ch chief has the discretion and the discretion to apply all of these factors employments were the employees work record the seriousness of the if then it's prior discipline how others are treated  i understand that but my my point is they're there has to be that they were it was in vision that they would have these employees would have riots that were to enforce certain labor labor relations statues and one of those is being able to prevent such you know improperly apply discipline or overly harsh discipline that kind of thing and if you weren't able to appeal the decision by the chief who was it was a pint of these there would be you know there would be no effective remedy and so you know for those purposes i think it's very clear that it was invision that terminations would be covered but through statute there's nothing there silence on whether terminations i'm should apply or not in the statutory history in the regulatory history so for those risk absolutely correct that the order came out from the o c board on the first appeal the agency the department never distinguishes or terrorists defines a date that they believe should set the european clock ticking they basically say could be anywhere between december fifteenth of january twenty sixth however on december nineteenth when the arbitrator was informed of the order they said we will work with the union to comply with this award or something to that effect  after some back and forth on that in january twenty sixth they said when asked when you're going to produce the information required to calculate back pay and when can you give us the details on how officer written history report back to work get back up to speed on any training he's missed on get is a quick meet in his uniform all stuff that he had to turn in the response was let me check my client on how they want to deal with this i think two weeks went on from that nothing that happened so the arbitrator said reinstate him within thirty days which put us to i believe around march twentieth would have been thirty days and on march thirteenth was the very first time the partment said we do not intend to comply with the sward because we don't believe the arbitrator had jurisdiction therefore at any one of these points whether it's march thirteenth the date informed that the parties that they don't believe referring to the timeliness of the time period in which the board's decision was issued and the procedures that are followed after that after that decision was was i may thirteenth award had come and gone without the us e p taking any steps to comply is shown by the arbitrator's and the f o peace correspondent let me go into a little bit detail of what that means on the office of compliances on regulations where an arbitration award may thirteenth were does not specifically include a deadline the deadlines of the rules apply and the deadline set forth by the rules which is office of compliance procedure zero eight point zero three a states a party required to take any action under the terms of a final decision of the office of compliance board of directors carry out its terms promptly and shall within thirty days after the decision order becomes final and goes into effect by its terms provide the o c and all parties to them to the proceedings with  compliance report specifying the manner in which compliance with the provisions of the decision order has been accomplished following the olson board's decision on december twelfth two thousand and fourteen explicitly said in forth what it had done and what it was going to do to comply with that decision indeed the arbitrator and the union's correspondence in this case demonstrate that the u obligation to comply occur well before the arbitrator issued its feb seventeenth two thousand and fifteen e mail setting a date a deadline of march seventeenth i believe it was to comply so prior to any such amendment by the arbitrator to his award there was an obligation to comply and under our national treasury employees union versus the f r a the c circuits they stated that it is the first obligation to comply not when the order as the office of compliance is argued not when the order becomes final the issue is when was the us e p a his first obligation to comply and under its own regulations that first obligation to comply was promptly after the order with issued we've argued in our brief that that meant december fifteenth two thousand and fourteen the us e p a had some obligation to act the summer fifteenth two thousand and fourteen is the first business day after the the office supplies board of directors decision was issued so based its conclusion the office of compliances argument that an issue may arise before an arbitrator concerning terminations and subject to someone twenty one seventy one twenty one and seventy one twenty two there is no ability for the us c p or the employee to challenge the arbitrator's decision that means that the arbitrator's decision would be final and binding on the parties and there would be no opportunity for judicial review that is unprecedented not only in the public sector but the private sector where there is still judicial review of an arbitrator's decision it's critical here because unlike in the private sector arbitrators in the public sector may be construing statutory federal and state law provisions in resolving the case or the tween the parties and what seventy one twenty one  and twenty two do is prevent any party from challenging those decisions an arbitrator who oftentimes doesn't even have a law degree will have final say as to what a statutory interpretation is whether or not an employee should be fit or unfit to continue as a us officer that is unprecedented in both the public and private sector and for that reason we believe the congress express chose these provisions of some want twenty one the office of compliance says they don't apply here but they did they were adopted by the c a a and for that basis when you have something that is adopted by the by congress knowing that these these provisions have been construed to limit the rights of employees to challenge certain personnel actions when they've been deprived of those rights otherwise and another statutory pellet system you can only conclude the congress understood how those provisions would apply soon please and this statutory in the legislative branch who are now subject to those provision over fifteen days terminations the motions and i'm sure i'm missing some of the and those are the provisions that were sent were those are the subject matters that are governed by those  again i may be getting the language wrong but they're saying similar matters under other personnel systems so it's not just chapters forty three chapter seventy five that provide that apply it saying those top matters covered by those sections and other matter specific subject matter that congress if you look at the legislative history of the epithelium our us says these are serious personnel actions and we want more than just negotiate a grievance procedure the appeals process that's available the own like those in the c s r s who were given serous right that's right so we know from our previous experience that da officers for example criminal law enforcement officers have full and asked to be right there in front of us all the time think that's your argument tell me if i'm wrong because i don't i don't want to go on here right it is correct but let me clarify further that if you so we start with the due process notion there  internally so employees still are able before the before the chief of police recommends any terminations employees get notice that they're being recommended for termination and there's an entire process including a disciplinary review board where they can choose to appear before their peers and other important prepare and other persons in the department with authority to decide these matters and to review it and determine it and in fact i believe  such appellate challenges don't exist outside of the negotiated lease procedure there would be no opportunity for someone outside besides the c p p to review a terminations decision that is absolutely correct however that's not unlike the executive branch where employees who are denied access to the c s r a's appellate procedures for terminations and other serious serious personnel actions were also