                          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,

                 Defendant.


                                MEMORANDUM OPINION

       Plaintiff National Railroad Passenger Corporation, best known

as Amtrak ("Plaintiff" or "Amtrak"), brings 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

("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. 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 his jurisdiction
and violated public policy with respect to Amtrak Inspector General

investigations and Amtrak police officer discipline. 1

     This matter is presently before the Court on Amtrak's Motion

for Summary Judgment [Dkt. No. 23] and the FOP's Cross-Motion for

Summary Judgment [Dkt. No. 25]. At the heart of the Parties' Cross-

Motions is 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 Office of Inspector General? The Court concludes that they

are not. Upon   consid~ration   of the Motions, Oppositions [Dkt. Nos.

25, 27], Replies [Dkt. Nos. 27, 28], the United States' Statement

of Interest   [Dkt. No. 26], and the entire record herein, and for

the reasons     stated below,   Amtrak's Motion for Summary Judgment

shall be granted and the FOP's Cross-Motion for Summary Judgment

shall be denied.




1 On July 9, 2014, Amtrak filed its First Amended Complaint [Dkt.
No. 5] , which raised the same core contentions as its initial
Complaint. Amtrak's initial Complaint named FOP member and former
Amtrak Police Department officer Sarah Bryant as a Defendant. Pl.'s
Compl. ~ 3. Amtrak's First Amended Complaint names only the FOP as
a Defendant. Pl.'s First Am. Compl. ~ 2.

                                   -2-
I .      BACKGROUND

         A.    Factual and Procedural Background2

         In May of 2008,         Sarah Bryant      ("Bryant")    joined the Canine

Unit of the Amtrak Police Department ("APD").

         On September 20, 2011, the Amtrak Office of Inspector General

    ("OIG")   and     APD's     Internal     Affairs    Unit    received    anonymous

complaints that Bryant's supervisor,                   William Parker      ("Parker") ,

was assigning Bryant a disproportionate share of "surge overtime"

in the Canine Unit and that Bryant and Parker jointly owned a home

in Bowie, Maryland.

         On September 25,         2012,    the OIG interviewed both Parker and

Bryant.       At the    interview,        Bryant was apprised of her right to
                                               )



remain silent in accordance with~Garrity v. State of New Jersey,

385 U.S.       493,    500    (1967)   (holding that statements obtained from

police officers under threat of termination for refusal to answer

could not be used in subsequent criminal proceedings).                        However,

2 The Parties agree that there are no facts in dispute. Statement
of Material Facts in Support of Plaintiff's Motion for Summary
Judgment at 1 n.l [Dkt. No.23-2]; Statement of Facts in Support of
Defendant's Cross-Motion for Summary Judgment at 1 n.1 [Dkt. No.
25-1]. Accordingly, the facts that follow are drawn from the
Arbitrator's Decision at 1-22 [Dkt. No. 22-1].

  The Parties renumbered the pages of the Arbitrator's Decision
when they compiled the Joint Administrative Record [Dkt. No. 22].
Compare Arbitrator's Decision as submitted with Pl.'s Compl. [Dkt.
No. 1-1] with Arbitrator's Decision as submitted in the Joint
Administrative Record [Dkt. No. 22-1] . The Court follows the
pagination set out in the Joint Administrative Record.
                                             -3-
...


          "[s] he was not advised of any right to                   [u] nion counsel and/or

      representation, or given Miranda rights, and her interview was not

      recorded in any way." Arbitrator's Decision at 5. The OIG' s failure

      to     take    these    three       steps    would prove      to be    critical     to   the

      Arbitrator's disposition of Bryant's case.

              On October 22, 2012, the OIG issued its report to the APD's

      Acting Chief of Police.                The report stated that both Parker and

      Bryant        had    made    false      statements    and     omissions     about    their

      relationship and joint ownership of the Maryland home during their

      interviews with OIG and in previous interviews with APD Internal

      Affairs.        The     report       also    stated    that    Bryant      and    Parker's

      relationship created a                conflict of     interest,       described various

      violations          of Amtrak policy,          and noted a      likely violation of

      Maryland's criminal code. See Arbitrator's Decision at 5-7. 3

              On November          19,     2012,   the   Acting   Chief     of   Police   issued

      administrative charges against Bryant. On December 3,                            2012,    the

      APD     gave        Bryant    the     opportunity     to    resign     rather     than     be

      terminated. She declined the offer and was terminated. 4

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

      forth in the Collective Bargaining Agreement                        ("CBA"), A.R.        259-



      3 The potentially criminal conduct occurred in 2005 and has never
      been prosecuted. Def.'s Reply at 1 n.1.
      4    Parker, likewise, was terminated.
                                                     -4-
320   [Dkt. No. 22-2], between Amtrak and Bryant's union,         the FOP,

Bryant appealed her termination to an Arbitrator. On November 15,

2013, Arbitrator Joan Parker (no relation to William Parker) held

a hearing regarding Bryant's termination, and on January 31, 2014,

Amtrak and the FOP submitted post-hearing briefs.

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

that Amtrak   did not   have   just   cause   to   discharge   Bryant.   The

Decision ordered Amtrak to reinstate Bryant to her prior position

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

payment of benefits. Arbitrator's Decision at 22.

      The Arbitrator's Decision rests entirely on the OIG's failure

to: 1) advise Bryant of her right to union representation; 2) read

Bryant her Miranda rights; and 3) record her interview. A section

of the CBA between Amtrak and the FOB contains extensive procedures

that govern internal investigations of APD officers. Arbitrator's

Decision at 3-4. This section, entitled "Rule 50-Police Officers

Bill of Rights," includes the following relevant provisions:

      In an effort to ensure that these interrogations [of APD
      employees] are conducted in.a manner which is conducive
      to good order and discipline, the following guidelines
      are promulgated:

      2. The employee shall be advised of his [or her] right
      to an adjournment in order to have the Organization's
      [i.e., FOP's] counsel (or his [or her] designee) and/or
      Organization representative present.



                                  -5-
     4. If an employee is under arrest or is likely to be,
     that is, if he [or she] is a suspect or the target of a
     criminal investigation, he [or she] shall be given
     [their] rights pursuant to the Miranda decision.

     7. The complete interrogation of the employee shall be
     recorded mechanically or by a stenographer. All recesses
     called during the questioning shall be noted. The
     employee or the Organization's counsel (or his [or her]
     designee) shall be entitled to a transcript of such
     stenographic record within a reasonable time after such
     interrogation.

     8. The Department shall afford an opportunity for an
     employee, if he [or she] so requests, to consult with
     counsel and/or with a representative of the Organization
     before being questioned concerning a violation of the
     Rules and Regulations; provided the interrogation is not
     unduly delayed. The employee shall have the right to
     have the Organization's counsel      (or his   [or her]
     designee) and/or Organization representative present to
     assist him [or her] during the interrogation.

Arbitrator's Decision at 3-4. 5

5 Rule 50 of the Bill of Rights provides additional protections
that go far beyond those afforded to members of the public who may
interact with APD officers. For example, before any internal
investigation      including those involving suspected criminal
conduct by APD officers -- the officer under investigation "shall
be informed of the nature of the inquiry before any interrogation
commences, including the. name of the complainant." Arbitration
Record at 300-01 [Dkt. No. 22-2]. "If it is known that an employee
is the target of a criminal investigation or a witness only, he
[or she] should be so informed at the initial contact." Id.

  In contrast with oft-used interrogation tactics employed with
suspects of criminal activity, Rule 50 requires that "[t] he
interrogation of an employee shall be at a reasonable hour,
preferably when the employee is on duty, unless the exigencies of
the interrogation dictate otherwise."       Id.   Moreover, "[t]he
questioning shall not be overly long.         . Time shall also be
provided for personal necessities, meals, telephone call(s) and
rest periods as are reasonably necessary." Id. Finally,~ " [t] he
employee shall not be subject to any offensive language, nor shall
                                  -6-
      Relying on the Railway Labor Act ( "RLA"), 45 U.S. C.                       §    151

et    ~'        the Inspector General Act of 1978                    ( "IG Act"),        5

U.S.C. App. 3       §    1 et   ~'     and the Supreme Court's decision

in Nat'l Aeronautics & Space Admin. v. Fed. Labor Relations

Auth. ("NASA"), 527 U.S. 229 (1999), the Arbitrator concluded

that Rule SO's protections apply to investigations conducted

by the OIG. The Amtrak OIG is not specifically mentioned in

Rule 50, and the OIG was not a signatory to the CBA. However,

the   Arbitrator         reasoned      that    Amtrak       agreed     to   the        CBA

containing Rule 50,             and the OIG is a part of Amtrak,                      and,

therefore,       Rule 50 is binding on the OIG.                    Because the OIG

failed     to    afford       Bryant    the    benefits       of    Rule    50,        the

Arbitrator held that her·termination was unwarranted.

      On   April        22,   2014,    Amtrak       filed    its     Complaint         and

Petition to Vacate Arbitration Award under the Railway Labor

Act   [Dkt. No.     1], contending,           among other things,           that the

Arbitrator's application of Rule 50 to an OIG investigation

violates the clearly established public policy of Inspector

General independence reflected in the IG Act. On July 9, 2014,

Amtrak filed its First Amended Complaint [Dkt. No. 5], which




he [or she] be threatened with transfer, dismissal or other
disciplinary punishment. No promises or reward shall be made as an
inducement to answering questions." Id.
                                              -7-
contains substantially similar allegations. On September 26,

2014, Defendant FOP filed its Answer [Dkt. No. 9].

        On July 10,          2015, Amtrak filed its Motion for Summary

Judgment [Dkt. No. 23], and on August 14, 2015, the FOP filed

its Combined Cross-Motion for Summary Judgment and Opposition

[Dkt.        No.    25].    On    September    11,   2015,       Amtrak    filed     its

Combined Opposition and Reply [Dkt. No. 27]. On September 11,

2015,    the United States filed a Statement of Interest                           [Dkt.

No.   26]. On October 9,             2015,    the FOP filed its Reply              [Dkt.

No. 28] .

        B.         Statutory Background

                   1.      Inspector General Act

        Congress enacted the Inspector General Act of 1978 "to create

independent and objective units                           . to conduct and supervise

audits and investigations related to the programs and operations"

of federal agencies.               5 U.S.C. App.     3    §   2(1). Under the IG Act,

each agency's Inspector General is appointed by the President with

the advice and consent of the Senate, and is subject only to the

"general supervision" of the head of his or her agency or "the

officer next in rank below such head [.]" Id.                      §   3 (a).

        Although Inspectors General are supervised by the heads of

their        re spec ti ve       agencies,    they       enjoy     broad        independence.

"Congress did not intend that the power of 'general supervision'

                                              -8-
given to the two top agency heads could be used to limit or restrict

the investigatory power of the Inspector General." U.S. Nuclear

Regulatory Comm'n, Washington, D.C. v. Fed. Labor Relations Auth.,

25 F.3d 229,              234    (4th Cir.   1994),     as amended        (June 21,      1994).

Rather, Congress specified that "[n] either the head of the [agency]

nor the officer next in rank below such head shall prevent or

prohibit the Inspector General from initiating, carrying out, or

completing any audit or investigation, or from issuing any subpena

[sic]     during the course of any audit or investigation." 5 U.S.C.

App . 3    §   3 ( a) .

        In 1988, Congress expanded the Inspector General Act to create

Off ices       of    Inspector        General     in     certain       designated       federal

entities,        including Amtrak. Pub. Law No. 100-504, 102 Stat. 2515

(Oct.     18,       1988).       Congress    vested     these     additional         Inspectors

General with the same investigative powers and independence as

their forebears. 5 U.S.C. App. 3                 §    8G(d) (1)   (guaranteeing that the

"head     of     the      designated     Federal       entity     shall    not       prevent   or

prohibit the Inspector General from carrying out,                               or completing

any     audit        or         investigation");        see     also      id.    §     8G(g) (1)

(incorporating the same investigative and subpoena powers provided

under Section 6 of the IG Act) .




                                                -9-
              2. Railway Labor Act

        The RLA provides for the creation of CBAs between railway

employees and management and the resolution of conflicts that arise

under     those   agreements.          See   45   U.S. C.   §   151a.   In establishing

Amtrak,     Congress       made        the   publicly-owned        passenger        railroad

subject to the provisions of the RLA and its statutory scheme for

union representation and collective bargaining. See,                          ~,    Railway

Labor Executives 1 Ass 1 n v. Nat 1 l R.R. Passenger Corp., 691 F. Supp.

1516, 1519 (D.D.C. 1988)               ("Relations between the unions and Amtrak

are governed by the Railway Labor Act[.]"); Abdul-Qawiy v. Nat'l

R.R. Passenger Corp., 2005 WL 3201271, at *1 (D.D.C. Oct. 25, 2005)

("Amtrak is a       common carrier subject to the provisions of                          the

Railway Labor Act[.]").

        Section 3 First (q) , of the Railway Labor Act provides that

any employee or carrier "aggrieved by any of the terms of an award"

issued by an arbitrator under the Act may file a petition for

review      in    United     States          District       Court.      See    45     u.s.c.
§    153 First (q) .   The RLA also provides that the findings of an

arbitrator may be set aside "for failure                          . to comply with the

requirements of this chapter, for failure of the order to conform,

or     confine    itself,         to     matters     within       the    scope      of   the

[arbitrator's] jurisdiction, or for fraud or corruption by a member

of the [panel] making the order." Id.

                                             -10-
II.     STANDARD OF REVIEW

        Summary judgment may be granted only if the moving party has

shown that there is no genuine dispute of material fact and that

the moving party is entitled to judgment as a matter of law. See

Fed. R. Civ. P. 56(a); Celotex Corp. v. Catrett, 477 U.S. 317, 325

    (1986); Waterhouse v. Dist. of Columbia, 298 F.3d 989, 991 (D.C.

Cir. 2002). As already noted, the Parties agree that there are no

facts in dispute. Statement of Material Facts in Support of Pl.'s

Mot. for Summ. J. at 1 n.1; Statement of Facts in Support of Def.'s

Cross-Mot. for Summ. J. at 1 n.l. Accordingly, the Court need only

determine whether either Party is entitled to judgment as a matter

of law. Fed. R. Civ. P. 56(a).

III. ANALYSIS

        Amtrak contends that the Court must vacate the Arbitrator's

Decision and Award because the Decision conflicts with the public

policy underlying the IG Act, 5 U.S.C. App. 3   §   1 et seq. 6 Amtrak's

principal argument is that, contrary to the Arbitrator's Decision,



6 Amtrak raises two arguments in the alternative. First, it
contends that by relying on the IG Act and Supreme Court precedent,
the Arbitrator exceeded the jurisdiction conferred on her by the
RLA. Second, Amtrak contends that because the OIG report implicated
Bryant in potentially criminal conduct, Bryant's reinstatement to
her former position would conflict with the public policy of
maintaining a law-abiding police force.    Because the Court holds
that the Arbitrator's Decision conflicts with the established
public policy of Inspector General independence, it need not reach
Amtrak's secondary argument.
                                  -11-
the investigatory powers of Inspectors General cannot be altered

or regulated by collective bargaining agreements because, if they

could, Inspectors General would lose the independence Congress set

out to give          them.     Thus,    according to Amtrak,               the Arbitrator's

Decision, which is predicated entirely on application of the CBA's

Rule   50    to    the Amtrak OIG,          conflicts with clearly articulated

Congressional policy.

       A.        Review under the RLA

       The standard applicable              to   judicial review of arbitration

awards under the Railway Labor Act is "among the narrowest known

to the law [.]      11
                         Union Pac. R.R. v. Sheehan, 439                u. s.   89, 91 (1978) .

However, while review under the RLA is limited, the Courts still

play a      role.        The   RLA itself    specifies         three      grounds    on which

arbitration awards may be overturned:                   "[1]     failure . .         to comply

with the requirements of                [the RLA] ,      [2]     []     failure                to

conform, or confine [an order] , to matters within the scope of the

[arbitrator's]           jurisdiction, or [3]          for fraud or corruption by a

member      of    the      [panel]     making    the    order.    11
                                                                           45    u.s.c.   §   153

First (q) .

       Our Court of Appeals has made clear that courts must also set

aside arbitration decisions and awards that are contrary to a well-

defined and dominant public policy. Nw. Airlines, Inc. v. Air Line

Pilots Ass'n,            Int'l,   808 F.2d 76,     83    (D.C.         Cir. 1987); see also

                                            -12-
Office & Prof 'l Employees Int'l Union, Local 2 v. Washington Metro.

Area Transit Auth., 724 F.2d 133, 140 (D.C. Cir. 1983)                            (" [C] ourts

will not enforce an award that is contrary to law or explicit

public policy.").

       However, review on public policy grounds,                       like review under

the RLA's explicit provisions, is also narrow. Nw. Airlines, 808

F.2d at 83. An award may be overturned on public policy grounds

only     if    "the public policy         in question           [is]    well-defined and

dominant,       and   [may]    be ascertained by reference to the laws and

legal precedents and not from general considerations of supposed

public        interests."      Id.   (internal      citation and quotation marks

omitted); accord E. Associated Coal Corp. v. United Mine Workers

of Am.,       Dist.   17,     531 U.S.   57,   63     (2000)    (courts must consider

whether enforcement of award would "run contrary to an explicit,

well-defined,         and     dominant    public       policy,     as    ascertained       by

reference to positive law and not from general considerations of

supposed public interests"); Union Pac. R.R. Co. v. United Transp.

Union,    3 F. 3d 255,         258   (8th Cir.      1993) ,    cert.    denied,    510 U.S.

1072      (1994)      ("federal       courts     possess        authority     to      vacate

arbitration awards under the Railway Labor Act on public policy

grounds . . . when those awards violate well-defined and dominant

public policies.").



                                           -13-
        B.      Collective Bargaining and the Inspector General

        The public policy that Amtrak cites - -                             that the Inspector

General's investigative powers may not be regulated or abridged by

CBAs -- is an explicit, well-defined, and dominant public policy.

The independence of Inspector Generals is at the heart of the IG

Act,    see,    ~,          5 U.S.C.    App.    3     §    8G(d) (1)    (prohibiting agency

head         from     preventing        or      prohibiting             Inspector         General

investigations).             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

(D.C.    Cir.       2014); accord U.S. Nuclear Regulatory Comm'n v.                           Fed.

Labor Relations Auth.            ("NRC"), 25 F.3d 229, 234 (4th Cir. 1994).

        The controversy in DHS,                751 F.3d at 666,                centered on the

Department of          Homeland Security's refusal                     to negotiate with a

bargaining          unit    representing        employees         of        Customs    and   Board

Protection (an agency within the Department) over the procedures

the Department's OIG would use to conduct employee interviews. The



                                               -14-
bargaining unit's proposal at issue in DHS closely mirrored Rule

50. It provided:

       that union officials receive advance notice of employee
       interviews;   that   interviews be conducted at       the
       worksite;    that     employer    representatives     act
       professionally;    that   the  employer  representatives
       provide employees with specific negotiated forms with
       their rights outlined prior to conducting the interview;
       and that employer representatives advise employees of
       their right to union representation if the employee may
       be subject to discipline or adverse action before the
       interview is conducted.

Id.    The      bargaining           unit    explained    that     the    purpose       of    "the

provision at issue [wa]s to obligate all employer representatives

to     adhere        to     the []     negotiated        provisions        when    conducting

investigatory interviews                    (criminal and noncriminal)            of    [Customs

and      Border           Protection]         bargaining         unit     employees."          Id.

Additionally,             the proposal        "specifically identif ie [d]             employees

from     [the    Department           of    Homeland     Security's]       OIG as      employer

representatives             when     they conduct        these    investigations         of   CBP

employees [ . ] " Id.

       Citing the clear statutory foundation of Inspector General

independence, our Court of Appeals upheld the Department's refusal

to    consider       the     union's        proposal,     holding        that   proposals       to

regulate OIG investigations authorized by the IG Act are not proper

subjects of collective bargaining. Id. at 671-72 (citing 5 U.S.C.

App. 3    §   2) .


                                                -15-
        The Court also noted that "[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." Id. at 672

(internal quotation marks and citation omitted); see also id. at

672-73 ("To allow the [agency] and the Union, which represents the

[agency's]      employees,         to    bargain over        restrictions        that   would

apply    in    the       course   of    the     Inspector General's          investigatory

interviews          in    the     agency       would      impinge     on   the     statutory

independence         of     the    Inspector           General.                  [Proposals]

establishing         employee          rights     and     procedures       for   conducting

investigatory            interviews      are     therefore        inconsistent     with    the

Inspector General's independence and the Inspector General Act."

(quoting NRC, 25 F.3d at 234)).

       Notably, the DHS Court was careful to distinguish NASA, 527

U.S.    229,   the Supreme Court opinion heavily relied upon in the

Arbitrator's Decision in this case.                       In NASA,     the Supreme Court

held that OIG investigators were agency "representatives" for the

purposes       of    certain       statutorily          guaranteed     rights      of    union

members. 527 U.S. at 246. NASA's holding formed the basis for the

Arbitrator's ruling that OIG is bound by Amtrak's CBA with the FOP

because it is part of Amtrak. Arbitrator's Decision at 21.

                                                -16-
      However,    as DHS makes clear, NASA cannot be stretched that

far. Instead, the DHS Court stated that the holding in NASA goes

only so far as to protect certain rights explicitly guaranteed by

statute. DHS, 751 F.3d at 671.          "[T]he [Supreme]       Court's decision

in NASA certainly does not suggest that OIG investigations can be

regulated .       . pursuant to the terms of a collective bargaining

agreement." Id.7

      In short, DHS makes clear that the IG Act's public policy of

Inspector General independence would be violated if CBAs could

restrict an Inspector General's investigative authority. Because

the   Arbitrator's     Decision    would       subject       the    Amtrak   OIG's

investigative     powers   to   limitations      contained     in    a   CBA-not   a

statute--there is no question that the Decision is contrary to the

public   policy    underlying    the    IG    Act.   Thus,    the    Arbitrator's

Decision cannot stand.s

7 The Supreme Court even acknowledged in NASA that the question of
whether a collective bargaining agreement could affect an
Inspector General's investigative powers was not before it. 527
U.S. at 244 n.8. Moreover, the Court approvingly cited the Fourth
Circuit's earlier opinion holding that an agency "could not bargain
over certain procedures by which its OIG conducts investigatory
interviews." Id. (citing NRC, 25 F.3d 229).

8 The Court notes that the United States Government filed a
Statement of Interest on September 11, 2015 [Dkt. No. 26].     The
Government stated that the arbitrator had, in its view, committed
legal error "because Inspectors General cannot be bound by any
collective bargaining agreement purporting to place substantial
limits on their investigative authority."     The Government also
stated that the "arbitrator misread NASA." Finally, the Government
                                       -17-
        c.    Retroactive Application of Judicial Decisions

        The FOP argues that despite the clear conflict between DHS

and the Arbitration Decision,           the DHS Court's judgment does not

justify overturning the Arbitrator's Decision because DHS was not

decided until three months after the arbitration was completed.

The Court disagrees.

        First, although DHS had not yet been decided, the policy it

articulates      was   already       firmly      established.     The    policy   of

Inspector General independence is made clear in the IG Act itself.

See e.g., 5 U.S.C. App. 3        §   8G(d) (1)      ("the head of the designated

Federal entity shall not prevent or prohibit the Inspector General

from     initiating,   carrying       out,     or    completing    any    audit   or

investigation, or from issuing any subpena [sic] during the course

of any audit or investigation") . Moreover,                twenty years ago in

1994,    the United States Court of Appeals for the Fourth Circuit

had reached the same conclusion as the DHS court. NRC,                      25 F.3d

229; see also NASA, 527 U.S. at 244 n.8                (favorably citing NRC in

footnote) .

        Second, the FOP's contention that this Court should not apply

what is now clearly binding precedent is simply incorrect.                        The


relied upon the conclusion in DHS v. FLRA that "proposals
concerning Inspector General-investigation procedures are not
'appropriately the subject of bargaining,' because to allow such
bargaining 'would impinge on the statutory independence of the
IG."' DHS, 751 F.3d at 668.
                                        -18-
Supreme Court has said that "[w]hen [it] applies a rule of federal

law   to   the    parties   before    it,     that   rule   is   the   controlling

interpretation of federal law and must be given full retroactive

effect in all cases still open on direct review and as to all

events, regardless of whether such events predate or postdate our

announcement of the rule." Harper v. Virginia Dep't of Taxation,

509 U.S.    86,   97   (1993)   ("adopt [ing]    a rule that fairly reflects

the position of a majority of Justices in [James B. Beam Distilling

Co. v. Georgia, 501 U.S. 529 (1991)]").

      There is no doubt that this Court must take the same approach

to decisions of our Court of Appeals. United States v. McKie, 73

F.3d 1149, 1152 (D.C. Cir. 1996)            (noting that "[l]itigants, either

civil or criminal, may [] take advantage of judicial modifications

in the law that are announced before they have exhausted their

direct appeals"). As the Court of Appeals wrote in Nat'l Fuel Gas

Supply Corp. v. F.E.R.C.,

      Because the decision of an Article III court announces
      the law as though it were finding it -- discerning what
      the law is, rather than decreeing what it is changed to,
      or what it will tomorrow be, all parties charged with
      applying that decision, whether agency or court, state
      or federal, must treat it as if it had always been the
      law. The agency must give retroactive effect to the
      ruling of a federal court because of the nature of that
      court. Just as an Article III court may not issue an
      advisory decision, it may not issue a decision for less
      than all seasons, for some citizens and not others, as
      an administrator shall later decide.       In sum,   the
      decision of a federal court must be given retroactive

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       effect regardless whether it is being applied by a court
       or an agency.

59 F.3d 1281, 1289 (D.C. Cir. 1995)             (internal brackets, ellipses,

citations, and quotation marks omitted).

       D.     Showing Required

       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   DHS    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." DHS,                      7 51 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.




                                       -20-
IV.   CONCLUSION

      For     the           foregoing   reasons,     Amtrak's    Motion   for   Summary

Judgment     shall be granted,             the     FOP' s   Cross-Motion for    Summary

Judgment shall be denied, and the Arbitrator's Decision and Award

shall be vacated.




November    .2.:.----   1   2015
                                                      ~i&~~
                                                    Gladys Kes~r · - -
                                                    united States District Judge

Copies to: attorneys on record via ECF




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