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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-O
v.
)
)
JANET NAPOLITANO, et al.,
)
)
Defendants.
)
)
)
__________________________________________)
DEFENDANTS SUPPLEMENTAL MEMORANDUM ON
WHY THE CIVIL SERVICE REFORM ACT
PRECLUDES PLAINTIFFS REQUESTED RELIEF

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TABLE OF CONTENTS
PAGE
INTRODUCTION ...........................................................................................................................1
ARGUMENT ...................................................................................................................................2
I.

The Civil Service Reform Act Precludes Jurisdiction in Federal

District Court for Plaintiffs Employment Dispute ..............................................................2
A.

The CSRAs Scheme is Comprehensive..................................................................3

B.

The CSRAs 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 Courts 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 Courts 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. Dept 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 Courts 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.

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 employees 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 CSRAs 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 CSRAs comprehensive scheme. See 5 U.S.C. 7121; see also
Morales v. Dept 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
Boards 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)

Only claims of discrimination against government employees, claims which Plaintiffs

do not assert in this action, may be brought in district court through separate antidiscrimination 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
OSCs 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 agreements 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).

Either a federal agency or union can file exceptions to an arbitrators 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.

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The CSRAs 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 plaintiffs 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 213334 (Nothing in the CSRAs 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 CSRAs 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 employees claim, but rather
on the type of the employee and the challenged employment action.).
The CSRAs extensive preclusive effect is a direct manifestation of Congresss
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 CSRAs administrative and judicial review
procedures, while only the subset of more serious (and less frequent) personnel actions
triggered the CSRAs 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 agents 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
Courts 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 supervisors 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 Circuits interpretation of violation-of-oath standing.)
(emphasis in original).5 Here, Plaintiffs have several avenues to address claims of
unlawful discipline and the CSRAs 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 Courts 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 Counsels
disposition regarding an employees 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 threats 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 CSRAs exclusive legal

framework, Plaintiffs cannot demonstrate that they face a cognizable imminent threat of
irreparable harm justifying injunctive relief in this forum.

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. 75017504.7 Further, there are
administrative procedures and eventually review in the Federal Circuit for major
personnel actions. See Ellis Decl. 12; 5 U.S.C. 75117514.8
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 CBAs
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.

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 Federal
Circuit, which has plenary authority to set the agency act aside and to order appropriate
relief. Id.; Smith v. Dept 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 Immigration
Enforcement 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) (DHSs 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 DHSs 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 Justice
Civil Division, Federal Programs Branch
/s/ Adam D. Kirschner
ADAM D. KIRSCHNER (IL Bar No.
6286601)
BRADLEY H. COHEN (DC Bar No.
495145)
Trial Attorneys, Federal Programs Branch
U.S. Department of Justice, Civil Division
20 Massachusetts Avenue, N.W.
Washington, DC 20530
(202) 353-9265
Adam.Kirschner@usdoj.gov
Bradley.Cohen@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. Kirschner

ADAM D. KIRSCHNER

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EXHIBIT A

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Page 2 of 8 PageID 1020

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Page 3 of 8 PageID 1021

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Page 4 of 8 PageID 1022

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Page 5 of 8 PageID 1023

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Page 6 of 8 PageID 1024

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Page 7 of 8 PageID 1025

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Page 8 of 8 PageID 1026