good morning good morning your honor and may please the court and joseph busa here on behalf of the government and i would like to reserve three minutes for a bottle of executive orders asian here to three days that things they create goals for agency negotiators to strive to achieve they direct agencies to elect against permissive bargaining and they create certain targeted rules for all employees in the federal government plaintiff's chief complaint about all of these provisions is that when agencies implement them they will thereby violate the federal service labor management relations statute by one bargaining in bad faith and two refusing to bargain over probably negotiable subjects those are personally sleeve the type of leader relations disputes that can brought before the federal labor relations at the ready for initial administrative adjudication and for that reason the district court did not have jurisdiction to enter the injunction here if they can't bring it they can't bring a claim before the a when a supervisor orders an unfair labor practice that's unfair labor practice and the authority can review that contention and this legislation is saying the case here is against the president of the united states they can't the unions  claim before the agency against the president of the united states oh i see it as a name defendant i think that that might be right your honor but i might be frank one versus massachusetts holds that the president is not an agency within the meaning of the a p a and the jurisdiction of this agency the f o already is over agencies the president is not in that category so they can't bring the case that us cannot be brought against the president before the f l or even taking that is given your honor they can obtain precisely the relief that they want from the afa law read if the question from an order to  brought before the president either so then the question would be is there equal distinction between the inability to bring it under the hypothesize action under the review scheme and versus what's going on in this case because in this case the district or didn't enter in order to get the credit that's exactly right your honor and that those at the request of the plaintiffs i think that just illustrates that plaintiff's chief complaint here is about how agencies will be implementing these orders you know it's not you know a facial challenge to the suit the district court so this is a facial challenge i think that's precisely the problem your honor is that disputes are routed through out the federal government in concrete bargaining context about you know when agenc contents you will see it again and again and again allegations that implementing these provisions will violate various unrated sections of the f s l m r s that's the authority statute and congress says that those kinds of labor relations claims have to proceed in front of the authority so i think taking this out of say because of the president issuing ego this is really no different from a supervisor telling an agency negotiator what they're supposed to do in these negotiations if a supervisor had said look your goal is going to be to try to wrap this up and six months is is there any place for the unions to bring this sort of gentleman's that the for the ethical or your honor in a concrete targeting context and i think it would help to illustrate how that  would come to pass so imagine that it's not this challenge this is a facial challenge to the to the president's executive orders where is the place for the union to bring that if not twenty thirteen case that we've cited to you there which you had was an ultra ultra vires is facial challenge to uniform regulations issued by the secretary of the air force and a panel of this court said look you got to bring that apply the independent agencies or they only apply to executive agencies i would have to double check the text the orders are not exactly sure that question the preamble to the orders they say it's in the executive agencies doesn't government wide regulation a rule that doesn't apply to all the all the agencies both executive then independent to take those the predicate first and then to ask the question if i may i think actually some of these orders may apply independent agencies as well again i would want to double check because they had specific prepared for that question before are going to happy to offer a follow up letter if that be helpful but then to double back this court has decided that what counts as a government might rule is whether it's sort of that effect of the finding where the government would rule this is plenty of effort or a president addressing this issue they tend to apply what this court has said about the scope of government wide rules making they tend to say it's about having general effect in the government but that is not dispositive the number of employees applies to whether they make the sun agencies that there's just no affect on so that your jury of your argument would say that that's exactly the type of question that the f l r a would result in a case pacific instance to just walk through practically how that would work to take for example take the the provision an executive order that has a hard cap on officials so with that the government's only response so that as i take it  belittle it by saying only that i think just isolated the government's response to that is yes that's in conflict with the statute that deals with negotiations over officials on but there's a government wide rule now as a consequence of the executive order that allows that to happen and then under seventy one seventeen the government can do that that's exactly and so if that's the that's the government's defense that how does that get resolved in through the channel that you envision would be the appropriate way to do i'm happy to address that your honor i so if if a union comes to an agency and says look we would like to bargain over using official time for some employees and in excess of the twenty five percent annual cap and if the agency says well look we've got section four a five official time order and applying that rule we're not going to allow that the union can bring to get an unfair labor chapter i just love your there so is that what an agency would say is that that's how the government understands the it is even the true it's true the executive orders that then they would come back and they would say is not something we can bargain over because there's an executive order provision right on point that tells us that we can't allow for official time in excess of the hard cap that's been implemented in stone as a consequence of the second yester i believe that the best positioned to entertain that kind of a textual arguments about an implicit exception from what seems to us like a pretty clean legal argument about the plaintext of seventy one seventeen and they'd be addressing that in the context of a con that you identify exactly and that comes let's say before this court and then this court then gives chevron deference to the f l r a's interpretation seventy one seventeen and your point is well the same legal issue alternately gets up here even if not under the same procedural vehicle that's before us and it feels in that context and additional review will feel quite like a the facial challenge that unions that we were just talking about it will feel like just the pure legal question is there an implicit exception in seventy one seventeen for these kinds of government liable is that the that th court they wouldn't enter an injunction against all the president's aborted officers that's correct your honor it would be you there have to be sort of multiple jury occasions of course once this court gives a definitive answer on judicial review from the first case that will be the i believe that the authority has to go to district court in order to enforce them who are on direct reviewing this court they can cross petition for force and i think that might be right on i want to double check the details of the statute the answer we found in seventy one your answers that seem to be were inclined towards trying to figure out a way to do that and i guess i was wondering why your answer isn't well no you might not be able to bring this exact action but that doesn't matter because as long as you can get the legal ground a issue resolved through the parallel through the statutory scheme but it doesn't matter that you can't get the same relief you can here and that's a question for us we have to decide whether the donor base of money cases supports you on that but it seems like you are resisting the notion that you might not be able to bring this sort of action but it wouldn't matter you know i don't mean to resist that at all your honor that is definitely a fall back are going to think i was proceeding just from that as an initial point i wanted to point out in the government exactly the question i was off and i was surprised i thought the answer  no you can't bring that case here you can't bring a case against the president in front of the accelerator so what that's the scheme that congress has created congress created this piecemeal litigation that's the scheme the congress if the union starts to want to wants to bargain over permissive subject in the agencies and says we can't do that we've got an executive order that says that we are not allowed to bargain over a permissive subject and then the union susan district court brings the same suit is brought here now we wouldn't allow that because that's an end run around the jurisdiction of the lower rate i don't know that this case is any different than the other i completely agree or honor this is a direct and run around what you've said in secretary of the or force which is that i did more convenience to bring sort of a unified action in district court and try to get it done in all one fell swoop but you simply can't do that you have to raise these issues in concrete bargaining context that's precisely right and the unions don't risk a sanction by going down that road the government risks the sanction from f l areas you to cation there's no harm to the unions from going in front of the  only benefits in the form of ethyl or a decisions that might provide a basis for this court to defer to reasonable interpretations of the statu found in both weinberger and in the local four four six case and in other words what this court has said is taking the hypothetical we discussed in the court discussed previously if it's a negotiate bill a to appeal what's decided by the actual arrays negotiate billy and that is the question that comes before this court on review not whether the orders themselves were invalid or unlawful why what is your authority for the and this is where the government gets its citation to the local thirty nine hundred seven case wrong there misreading that case so before i address the court's question let me go back and explain how iris rose in local three seven the union put forth a bargaining proposal that would have allowed grievances over the implementation of eighty seven he said and the f l are a sad we find this ne because even though a seventy six says you may not grieve a violation of this circular we believe that the statute provides an independent right under seventy one twenty one to agr get to do you have to apply this government wide rule the way it is written notwithstanding whether there's a sweater seventy one twenty one exists you have to apply it the way it's written and what it says is you may not grieve and so f lorida you were wrong to find that the union's proposal was negotiable that's the real world outcome that we're talking about here is so so for your  address at least for me the section of the air force case which seems great deal like this it's completely different your honor and i'll tell you the main reason and there are two probably more why it's different secretary of the air force involved a covered action that was an agency policy and so when we talk about quintessential claims that are the bread and butter or the mind one of cases before an administrative agency this court found that because it was an agency policy it fell within the purview of the f r a that is precisely not the case here too there were grievances pending seeking the same relief and so the risk of an enron in this court found was very different in secretary of the air force sites and what we have here that that response and your general submission that you're putting forward today is hinged i think on this idea and this i just want to score this for second cousins on the idea that one thing you can do through the f l i r a mechanism that the government's relying on is get an up or down vote on the executive order that's just not available there now alicia suppose i suppose i agree with you on that but i think what the government says and responses ok well maybe you can't get the f l r a to pronounce on the executive order as such but take the hard caps on official time for negotiate on this because the executive order prevents it from negotiate negotiate on it whether we can pronounce on executive order or not we can pronounce on we can't pronounce on whether the agency can decide not to negotiate and then you and the government would have it out you'd say the government is citing this government wide rule under seven hundred seventeen they're all the arguments you're putting forward now they can't rely on that their argument proves way too much authority they're claiming under seventy one seventeen is way too sweeping it was all of the rule all the things that you're saying now which may well have forced i don't know but i'm not getting to that point and then the governor would come back and say no read seventy one seven hundred it tells us that we can adopt a government wide rule that gives us the license to do exactly what we want and they fell  would decide that now wouldn't necessarily say therefore the executive orders invalid but what it would say is therefore the agency can or can't take this position and in bargaining and so the legal issue would get res then is that not enough to it seems to me your position is that's not enough because as long as the authority lacks the discretion to pronounce on the validity of the executive order we have this channel that we're presenting now and the the cases all the thunder basin cases indicate that you're not for example under basin itself you're not going to get a pre enforcement challenge you just not but the answer the supreme court david under basin is that's too bad you're you have a post unfortunate challenge and you're going to get the same legal issue resolved it's just going to be through the context of opposing force and so the question would be for you is why doesn't that rubric apply here to say yeah you might not get the exact same thing you're looking for now but the legal issue that you're raising will get here to the going to bases where the sanction was already in process and i think that's very different from here but it also leads to the third reason why the unions won't get meaningful review i think in the hypothetical that you raise that every file an unfair labor practice complaint and they'll get review that way the statute gives discretion and if you have original counsel views that and looks at the government's argument reviews the government's argument is the government want to rule no complaint may ever issue and again review of for example an opium government wide regulation that proceeds in district court and that's a line of cases that includes the department of the air force case and includes and that's the fifth circuit case that the that the district court relied on but also another case which we cite in our brief n t v divine which this court affirmed the principle that these type of facial challenges to what is essentially its nature a legislative rule these belong in district court these are not applied challenges that belong before the f word they're not something that is in the the statute that the that f r a administers but for some other reason that there's some other statute that the agency may have violated but here the question is whether the executive orders violate the very statute that the agency administers that's the issue and the problem with trying to parse it in that manner is aren't you then adopting the type of rule that the elgin case rejected which is somehow whether the unions can get review in district court should be premised on the substance not whether the action itself is covered and then you run into a problem that that doesn't change the essential nature but it wasn't focused on the executive orders that large of them and all the provisions of those it just isolates one and it says here's the particular one we're talking about and you can pick any of about let's just pick the one we've been going change the nature of the challenges and he would just changes the form of the court's consideration the merits of challenges so that in terms of these are speculations of the scope of the challenges much narrower because it focuses on one particular provision of the executive order it's just hard caps on official time and your argument would be that that kind of challenge even if that could come up in the context of a concrete dispute under the existing statutory review mechanism because if an agency implemented that and said i'm sorry i can't go sheet over that i've got an executive order that tells me that i can't and then the union says that's and you're violating a law office and then the f l i r i guess that your position would be even though that is the course of events that we could predict would come about we still get to bring the action through this mechanism because this mechanism is a directional to the executive order and the other mechanism wouldn't directly challenge the executive order that would challenge the agenc of the executive order which is something different that's that's where you'd be i believe that it is correct that we would not see that as changing the jurisdiction for the jurisdictional inquiry for a number warning when you may please the court i do i do want to try as best i can anyway to to make clear that with reason with respect to the executive orders that there are two categories that fall within all of all three of the executive order and the first one has to do with a government wide rules that the government claims that under seventy one seventeenth it can implement these government wide rules and completely all five of them in effect and that's its justification for taking aim at the many collective bargaining provisions that it has taken off the table as you mentioned a couple times there are caps sharply curtailed bargaining regarding things like office space they purport to just unilaterally end the practice of providing official time to people who are to union reps who are helping people who are subject to grievances this is all under their umbrella of a government wide rules and as we develop a great length in our in our brief done because it would come first of all that the whole collective bargaining scheme resulted from an executive order that president kennedy issued it was no or any before that but before the statute was passed the president of the united states had the authority to control the executive branch and the employees and could allow click the bargain or not allow collective bargaining and the statute specifically says that the power of the president that existed before we the congress passed the statute is not if it's not affected by the statute now one way to read that is to indicate that the president still possessed the power to decide whether to have collective bargaining or not well what's your answer i thought well i think congress would have been very surprised to learn that it had taken the trouble to enact a comprehensive collective bargaining statute that the provision that ages and she as you did with i think with all respect that we would have to take issue with reading all we believe that that provision merely means that to the extent that there are residual powers that the president retains poster nachman of the statute he keeps them it doesn't mean that he gets to resurrect himself and return to the executive order regime that was in place before the s e i think that would that would be a most unlikely interpretation of the savings clause and of congress's and country congress specter for a time and effort talking about the sort of collective bargaining it wanted to be sure that the rights of the employees were codified in a statute and i encouraged the court to please take a look it at the debate that went on when the statute was passed hundred seventy eight and you will see as a district court pointed out that the congress had a kind of reverence for collective bargaining and so for the congress to have decided oh yes we'll pass a law we'll say that they have all these rights and you mr president any time you feel like it you can come back and cancel out the rights that we have chosen to provide all you have to do is pass a government what rule no and i guess that's what we're saying is that that would be a most unlikely reading of the scope of a government wide rule and let's talk about the government wide rule and what it actually means and i think that in order to do that you have to look at  context common sense also helps and also the case law so i'd like to do that as you know the government wide rule provision is in seventy one seventeen well i think everybody agrees that the is the president but in terms of whether the president could actually do a government wide rule something that the statute otherwise counter means there's at least some limits that well i  are observations made in that case that speaks very well to this case in the o p m case this court underscored that seventy one seventeen could not be used to circumvent other portions of the statute and of course that's exactly what it's doing here the official time provisions being the most obvious example the court also said that seventy one seventeen should not red expansively well this is one that repetition of the statute doesn't qualify as a government wide band or in one bargain the government has rights right because you know why because it had been fashioned for the purpose of cancelling out collective bargaining namely appropriate arrangements bargaining and that's what we're saying here is that the collective excuse me the a government wide rule mechanism can't be brought in to pick off from the bargaining table where these topics have long been to pick them off the table and not allow them to be subject to the duty to bargain along the way still sticking here with the o p m case  the court said couldn't be read expansively and furthermore and this is i think the real answer to your question perhaps it could not be used as a broad veto mechanism and your hypothetical judge randolph they suggesting just well you may believe that that wasn't the precise issue and i would agree with you but the court gave a very thoughtful consideration to the scope of what a government wide rule was and you know you're argument the way you str called goals provisions i think just a brief discussion is is in order the goals provisions and there are four of them in the statute what they have in common among other things is good management isn't it we have an objective these are permissive subjects so sure this is where we want to go how has that possibly go off if that's all they were if they were you know just  aspirational that was the word that the government use that would be one thing but there's more to it here as the district court pointed out they are making very clear to the agencies not just that you know this is something for you to aspire to these are in effect commands where the president is telling the agencies or what they must do and that is something that that he cannot do consistent with the statute he tells the agencies that they have to spend whatever time and resources that are necessary to achieve his goals he can piss for itself can can but in this instance what we've seen and here's an example for a short period of time these executive orders were in place before the lawsuit was filed and what we saw go on during that period of time and this is in the record in this case is that agencies were falling over themselves rushing to put into their collective bargaining agreements provisions echoed the president's executive orders so this is not a situation where the agency designed it for itself to adopt these things it was a direct result of presidential action because the president under article two at least for executive agencies is in charge so that the fact that they're falling over themselves to comply with the directive from the president of the united point of the chamber of commerce case the president has to follow the law and our point here is when he tells the agencies you need to do these things and by the way if you don't do them you have to report them to the head of the agency and furthermore the head of the agency will have to report them to me with an explanation a flavor of the district court as well let me back up it may not be really good negotiating strategy given what's reflected in the executive orders it may not be a good negotiating strategy to take off the table permissive subjects of pardoning that every agency that does that is giving up some leverage because  seems to me is is a choice that the executive department of the government made and so the question is whether the president have the authority to make that and of course our position is that he did not because so everyone  the specifies that those decisions regarding whether to bargain about permits or subjects are not made by agencies not by the president because they wanted the agencies to make that call because obviously the individual agencies are most familiar with the nitty gritty of labor relations issues that are in play i see them over my time you are and i thank you of course one of my colleagues of the statute doesn't say to the exclusion of the president's lawful ability to direct his subordinates and how to carry out the functions of the executive branch and i think you'd want that kind of clear state rule to dispossess the president of the power he otherwise obviously has under article two but most importantly i hope that the plaintiffs have properly presented or preserve any such argument they never said that you know that that that the problem here is that agencies need to have their own insulated ability to decide this issue separate apart from the president i think this morning was the first time i heard that clearly articulated i only have really one coeur point to make in rebuttal your honor i hope it's pretty quick and the key issue is jurisdiction all these legal issues will get resolved are interruptive that do you agree that the f r a has the authority to herman the validity of an executive order in the face of an argument that the executive order violates the organic statute the f r a yes and the reason we i mean if you just look at cases like o p m and i r s the reason those cases from this court on petition for review from the authority resolving important questions about what seventy one seventeen includes and what it excludes how you can use it and what the scope of negotiation is that's because those issues can be resolved by the authority and they can every all of the senate just to be clear on that was not so if the authority said we don't think we have authority to pronounce on the legality of an executive order as against the statute that the authority would be wrong you know that he does the authority does that oh i see what you're saying i think that's the question and i think they would be wrong but i don't think you need to prejudge it whether now whether they would be right or wrong about that because of the thunder basin channeling arguments this court without a doubt has authority to reach back cushion and so in conclusion i we ask that you co