                             UNITED STATES DISTRICT COURT
                             FOR THE DISTRICT OF COLUMBIA


National Railroad Passenger
Corporation,

                  Plaintiff,

        v.                                      Civil Action No. 14-cv-678(GK)

Fraternal Order of Police,
Lodge 189 Labor Committee,

                  Defendant.


                                    MEMORANDUM OPINION

        Plaintiff National Railroad Passenger Corporation, best known

as Amtrak ("Plaintiff" or "Amtrak"), brought this action to vacate

an arbitration award under the Railway Labor Act, 45 U.S.C.                            §   151

et seq.          ("RLA"), and the Inspector General Act of 1978, 5 U.S.C.

App. 3       §   1 et seq.      ("IG Act").

        After       a   labor    dispute   between       Amtrak     and   Defendant,       the

Fraternal Order of Police, Lodge 189 Labor Committee ("Defendant"

or "the FOP")           involving one of the FOP's members,                 on March 24,

2014,    an Arbitrator issued a Decision and Award in favor of the

FOP. See Arbitrator's Decision [Dkt. No. 22-1]. On April 22, 2014,

Amtrak filed its Complaint and Petition to Vacate Arbitration Award

under the Railway Labor Act                   [ Dkt.   No.   1] ,   contending that        the

Arbitrator's Decision exceeded the scope of her jurisdiction and
    violated public policy with respect to Amtrak Inspector General

    investigations and Amtrak police officer discipline.

        On July 10,        2015,    and August 14,           2015,    the Parties       filed

Cross-Motions for Summary Judgment. See Amtrak's Mot. for Summ. J.

    [Dkt. No. 23]; FOP's Cross-Mot. for Summ. J.                 [Dkt. No. 25]. At the

heart of the Parties' Cross-Motions was a single legal question:

are      procedural        limitations           on    the    conduct       of     internal

investigations         contained      in     a   collective     bargaining        agreement

between      Amtrak    and    the     FOP    binding     on    the    Amtrak     Off ice    of

Inspector General? The Court concluded that they are not, and on

November 2,     2015, issued a Memorandum Opinion 1 [Dkt. No.                       31] and

Order [Dkt. No. 30] granting Amtrak's Motion for Summary Judgment

and denying the FOP's Cross-Motion for Summary Judgment.

        On   November        25,     2015,       the   FOP     filed    a      Motion      for

Reconsideration ("Def.'s Mot.")                  [Dkt. No. 32], contending that the

"Court's November 2, 2015 Memorandum Opinion [Dkt. No. 31] contains

a number of legal errors which,                  if not corrected, will result in

a manifest injustice to not only the FOP, but to any federal labor

union     subject     to   the     investigatory powers          of    their     respective

inspectors general." Def.'s Mot. at 1. On December 8, 2015, Amtrak




1 Nat'l R.R. Passenger Corp. v. Fraternal Order of Police, Lodge
189, No. 14-CV-678 (GK), 2015 WL 6692104, at *l (D.D.C. Nov. 2,
2015).
                               -2-
filed its Opposition ("Pl.'s Opp'n")                   [Dkt. No. 33], and on December

14, 2015, the FOP filed its Reply ("Def.' s Reply")                        [Dkt. No. 34].

        Upon consideration of the FOP's Motion for Reconsideration,

Amtrak's Opposition, the FOP's Reply, and the entire record herein,

and for the reasons stated below, the Court finds the FOP's Motion

to be without merit, and accordingly, the Motion shall be denied.

I .     BACKGROUND

        The Court assumes familiarity with its previous Memorandum

Opinion       in   this     case        and    therefore   summarizes      only     the   most

relevant facts.

        On April      9,    2013,       pursuant to the grievance procedure set

forth    in    the    Collective              Bargaining   Agreement      ("CBA")    between

Amtrak     and     the'    FOP,     a    former     employee   of   the    Amtrak     Police

Department ("APD") appealed her termination to an Arbitrator.

        On March 24, 2014, the Arbitrator issued her Decision, holding

that Amtrak did not have just cause to discharge the former officer

because Amtrak's Off ice of Inspector General                          ( "OIG")   failed to

abide by certain procedural requirements contained in Rule 50 of

the Amtrak-FOP CBA during an investigatory interview of the APD

officer.

      Although Rule 50 does not specifically mention the OIG, the

Arbitrator reasoned that its terms applied to OIG investigations



                                                 -3-
because Amtrak agreed to the CBA containing Rule 50, and the OIG

is part of Amtrak's workforce.

     As    a    remedy          for   the   officer's     wrongful       termination,   the

Arbitrator ordered Amtrak to reinstate the officer to her prior

position       with       her   previous     level   of   seniority,       back pay,    and

retroactive payment of benefits. Arbitrator's Decision at 22 [Dkt.

No. 22-1].

     The Arbitrator did not reach any other issues raised by the

Parties and rested her Decision and Award entirely upon the OIG's

failure to comply with Rule 50. Id.                   ("[Amtrak] did not have just

cause to discharge Grievant Sarah Bryant because the procedural

safeguards      guaranteed to           employees by Rule           50           were not

afforded her during the . . . Amtrak OIG interrogation.").

     Upon review of the Arbitrator's Decision, the Court held that

application of Rule 50 to the OIG is contrary to the explicit,

well-defined,         and       dominant    public   policy    of    Inspector    General

independence. Mem. Op. at 14 (citing the Inspector General Act, 5

U.S.C. App. 3         §   8G(d) (1)). The Court noted that

     Our Court of Appeals and the Court of Appeals for the
     Fourth Circuit have spoken directly to the question the
     parties present:    "[P]roposals concerning    Inspector
     General-investigation procedures are not appropriately
     the subject of [collective] bargaining, because to allow
     such   bargaining  would   impinge   on  the   statutory
     independence of the I [nspector] G [eneral]." See U.S.
     Dep't of Homeland Sec. U.S. Customs & Border Prot. v.
     Fed. Labor Relations Auth. ("DHS"), 751 F. 3d 665, 668

                                              -4-
       (D.C. Cir. 2014); accord U.S. Nuclear Regulatory Cornm'n
       v. Fed. Labor Relations Auth. ("NRC"), 25 F.3d 229, 234
       (4th Cir. 1994).

Mem. Op. at 14.

II.    STANDARD OF REVIEW

       A motion for reconsideration under Fed. R. Civ. P. 59(e)

is "discretionary and need not be granted unless the district

court finds that there is an intervening change in controlling

law, the availability of new evidence, or the need to correct

a clear error or to prevent manifest injustice." Ciralsky v.

CIA, 355 F.3d 661, 671 (D.C. Cir. 2004)                 (quoting Firestone v.

Firestone, 76 F.3d 1205, 1208 (D.C. Cir. 1996)). Importantly,

"Rule 59(e) motions are aimed at reconsideration, not initial

consideration." GSS Grp.              Ltd v.    Nat'l Port Auth.,       680 F.3d

805,     812     (D.C.   Cir.    2012)    (internal     citations,     quotation

marks,     and    ellipses       omitted) .    "Accordingly,     a   Rule   5 9 ( e)

motion may not be used to raise arguments or present evidence

that could have been raised prior to the entry of judgment."

Id.    (internal         citations,      quotation     marks,    and    ellipses

omitted).

III. ANALYSIS

       The FOP contends that the Court's Memorandum Opinion in

this   case      contains    a    number of legal       errors   that    require

correction. According to the FOP,                   these errors include the

                                              -5-
Court's failure 1) to address the FOP's argument that sources
                                                                               ~




of law beyond the CBA limited the OIG's investigative powers

in the same manner as Rule 50, 2) to balance the policy goals

of the Railway Labor Act and the Inspector General Act, and

3) to prevent Amtrak from outsourcing internal investigations

to its OIG instead of conducting them through the APD's Office

of Internal Affairs ("OIA"). The Court finds none of the FOP's

contentions to be compelling.

         A.    Other Limitations on OIG Investigative Powers

         In   its    Cross-Motion         for       Summary    Judgment,       Defendant

relied on Quality Standards of Investigations ("QSis"), which

are      issued     by    the    Council       of    the    Inspectors        General      on

Integrity and Efficiency ("CIGIE"), to show that the CBA did

nothing more         than        reassert      limitations       that    were       already

binding on the OIG.               Def.' s     Cross-Mot.       for   Summ.     J.    at    27

("Given       that       Amtrak's       OIG     incontrovertibly         follows          the

standards set            forth    in the Council's QSI               [sic],    it is as

disingenuous as it is hypocritical for Amtrak to suggest that

its OIG is somehow immune from the strictures of Rule 50[.]").

         According to the FOP,                "in demanding that Amtrak's OIG

honor the due-process protections guaranteed under Rule 50,

the FOP is not imposing any further restrictions upon Amtrak

OIG' s    independence           than   those       which     Congress   has        already

                                                -6-
imposed via the Inspector General Reform Act of 2008." Def.'s

Reply at 13 (section heading written in all caps in original).

          The   FOP   contends   that   "[t]he    Court   erred     by     ignoring

altogether        the    FOP's    argument       concerning     the       statutory

restrictions that Congress -- not Amtrak or the FOP -- placed on

Amtrak's- inspector general when Congress created the Council of

the Inspectors General on Integrity and Efficiency[.]" Def.'s Mot.

at   1.    According to    the   FOP,   "the Court    failed to make even a

passing reference to the CIGIE or the [QSis] the CIGIE promulgates

     standards by which Amtrak's [OIG] was statutorily bound to abide

as a member of CIGIE[.J" Def.'s Mot. at 2.

       The FOP continues, "The Court was and is obligated to address

in at least some fashion all of the arguments that the FOP raised

in its briefs in defense against Amtrak's lawsuit. To refuse to do

so   invites an unnecessary remand on appeal."                Def.' s    Mot.   at   2

(emphasis in original) .         It reasons,     "[h] ad this Court performed

even a cursory review of those standards in its Memorandum Opinion,

it would have been hard-pressed to deny that the CIGIE imposes

almost identical restrictions upon its OIG members in conducting

their respective investigations as those set forth in Rule 50 of

the collective negotiations agreement between Amtrak and the FOP."

Def.'s Mot. at 6.



                                        -7-
     Defendant's argument, however, ignores the Court's discussion

on page 20 of its Memorandum Opinion, where the Court stated:

     The FOP also contends that Amtrak has failed to
     specifically show how .Rule 50 would interfere with OIG's
     investigative authority. This argument misses the mark.
     As the OHS court explained, "[t]he important point [] is
     not that particular negotiated procedures interfere with
     specific aspects of OIG authority under the Inspector
     General Act but, rather, that negotiation in and of
     itself is antithetical to OIG independence established
     by the Inspector General Act." OHS, 751 F.3d at 672
     (emphasis added) (internal quotation marks and citation
     omitted) . Thus, Amtrak need not show precisely how Rule
     50 would burden the OIG. It is enough to nullify the
     Arbitrator's   Decision that,    if the Decision were
     enforced, Rule 50 would regulate the OIG's conduct
     during employee interviews.

Mem. Op. at 20 (emphasis added in the Memorandum Opinion).

     The FOP's contention that the Arbitrator correctly enforced

Rule 50 of the CBA because it imposed no additional restrictions

on the OIG is not convincing because it relies on an inquiry into

which negotiated procedures   interfere with OIG authorities and

which do not. Our Court of Appeals had stated squarely that such

an inquiry conflicts with the OIG Act. OHS, 751 F.3d at 672.

     It is true that the Court does not discuss the intricacies of

the QSis or the CIGIE or any other pre-existing 'restrictions on

the OIG's authority. No discussion is necessary -- indeed, such an

inquiry would conflict with OHS,     in which our Court of Appeals

ruled that "negotiation in and of itself is antithetical to OIG

independence established by the Inspector General Act." OHS,     751

                               -8-
    F.3d at 672. Even if a CBA included negotiated procedures mirroring

restrictions already incumbent on the OIG,           the terms of the CBA

would not be directly binding on the OIG. 2

         B.   The IG Act and the Railway Labor Act

         The FOP next claims that "[t]he Court also failed to perform

any analysis whatsoever of the interplay between the statutory

independence afforded to inspectors general under the Inspector

General Act      []   and the equal      if not   superior      --    statutory

importance of free and uninhibited labor relations promoted by the

Railway Labor Act ("RLA") ." Def.'s Mot. at 2. "Because Rule 50 of

the parties' collective negotiations agreement imposes no further

restrictions upon the independence of Amtrak's inspector general

to conduct investigations than those restrictions set forth by the

CIGIE in the QSI, this Court erroneously concluded that the public

policy goals of the [IG Act] trump the [RLA's] longstanding aim of

promoting      and    ensuring   labor   stability    through        collective

negotiations." Id.


2 The FOP claims that Congress itself has imposed restrictions on
OIG's authority similar to those of Rule 50. Def.'s Mot. at 1. The
FOP is incorrect. 5 U.S.C. App. 3 § ll(c) (2) requires Inspectors
General to "adhere to professional standards developed by the
Council" "[t]o the extent permitted under law[.]" The FOP believes
that those standards, the QSis, mirror the provisions of Rule 50.
But as § 11 (c) (2) makes clear, the QSis are not established by
Congress but by the Council of Inspectors General on Integrity and
Efficiency. Moreover, if the QSis, which are merely "professional
standards developed by the [CIGIE]," conflict with a Congressional
command, clearly, the QSis must yield. Id.
                                -9-
     To a large extent,           this argument merely restates the last,

and so the Court again refers the FOP to our Court of Appeals'

holding     in    DHS    that   "proposals      concerning       Inspector   General-

investigation procedures           are    not   appropriately       the   subject   of

[collective]       bargaining,    because to allow such bargaining would

impinge      on    the    statutory      independence       of     the    I[nspector]

G[eneral] ."      DHS,    751   F.3d     at   668   (internal      quotation    marks

omitted).       It does not matter whether "Rule 50 of the parties'

collective negotiations agreement imposes no further restrictions

upon the independence of Amtrak's inspector general to conduct

investigations." Def.'s Mot. at 2. Negotiation itself is what is

not allowed. Moreover, the DHS court's unambiguous statement makes

clear that the policy of OIG independence takes precedence over

"the Railway Labor Act's longstanding aim of promoting and ensuring

labor stability through collective negotiations," Def.'s Mot. at 2

(emphasis added). See Memorandum Opinion at 14-17 (section titled

"Collective Bargaining and the Inspector General") .

     True,       the labor-relations statute at issue in DHS was the

Federal    Service       Labor-Management       Relations    Statute      ("FSLMRS"),

5 U.S.C.    §    7101 et seq.,    rather than the Railway Labor Act, but

the FOP has provided no reason why the two analogous regimes should

receive different treatment.             Indeed,    the FOP cites another case

considering the FSLMRS -- not the Railway Labor Act -- to support

                                         -10-
    its arguments.         Def.' s Mot.     at 8        (citing U.S. Nuclear Regulatory

    Comm'n v. Fed. Labor Relations Auth.                      ("NRC"), 25 F.3d 229, 236-37

    (4th Cir.      1994)      (Murnaghan,     J.    dissenting)          for the proposition

    that    the    policies      underlying        labor-relations         statutes     and      the

    Inspector General Act are deserving of equal consideration) . 3

           For these reasons,            the Court concludes,              as it did in its

Memorandum           Opinion,      that    the      principle       of     Inspector    General

independence underlying the IG Act prevails over the collective

bargaining           rights      established        by    the    federal     labor     relations

statutes.            Consequently,           the         FOP's      second         ground        for

reconsideration is without merit.

           C.     Internal Investigations and the OIG

           The    FOP' s   final    argument       is    that    "the Court failed          []    to

appreciate          the    consequences        of       its     decision    to    vacate      [the]

Arbitrator['s] March 24, 2014 [Decision] and Award -- namely, the

tacit endorsement of Amtrak's calculated effort to make a complete

end-run          around    the     due    process        protections       that    unmistakably

govern APO [Office of Internal Affairs ("OIA")] investigations and

to     instead rely solely upon the poisoned fruits                               of Amtrak OIG


3 The Court also notes that the FOP cites a dissent for the core
of its argument. Def.'s Mot. at 8 ("This fundamental truth mirrors
Circuit Judge Murnaghan's dissent in [NRC], 25 F.3d [at 236-37]").
The NRC majority, which our Court of Appeals favorably cites in
OHS, held that Inspector General independence does, indeed, take
precedence over collective-bargaining rights. See NRC, 25 F.3d at
234-35; DHs·, 751 F.3d at 668.
                               -11-
investigations in meting out discipline to its employees." Def.'s

Mot. at 9. The FOP fears that the Court's decision will lead to "a

systemic practice of outsourcing all future APD OIA investigations

to Amtrak's   inspector general      -- or,   at   the very least,       those

select   investigations   for    which Amtrak has     a   vested,   tactical

interest in shirking its contractual obligation to afford due-

process protections prior to their commencement."             Id.   at   9-10.

"Such a role[,]" the FOP concludes, "is not what either Congress

or President Carter envisioned for OIGs nationwide when those two

co-equal branches of government enacted the Inspector General Act

in 1978." Id. at 10.

     The FOP's final argument is that it is a violation of the IG

Act itself for Amtrak to use the findings from an OIG investigation

("poisoned fruit")   to "met[e] out discipline to its employees[.]"

Def.'s Mot. at 9. This is a new argument which the FOP failed to

raise in its Cross-Motion for Summary Judgment. The FOP points to

language from its initial briefs indicating its fear that Amtrak

would outsource internal        investigations to its OIG.      See Def.' s

Reply at 41. However, there is no hint in its initial briefs that

such a course of action would violate the IG Act. Since Defendant

could have raised this argument in its Cross-Motion and failed to

do so, the argument shall not be considered at this late date. GSS

Grp. Ltd, 680 F.3d at 812.

                                    -12-
      Finally,      to the extent that the FOP is simply voicing its

policy concerns about the practical effects of the IG Act on agency

operations, it must direct those concerns to Congress. This Court

cannot provide the remedy that the FOP seeks.

IV.   CONCLUSION

      For     the     foregoing   reasons,    the   FOP's   Motion   for

Reconsideration [Dkt. No. 32] shall be denied.




December 3...1;2_, 2015                   Glady~ler
                                          United States District Judge

Copies to: attorneys on record via ECF




                                   -13-
