National Treasury Employees Union v. Chertoff

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued April 6, 2006 Decided June 27, 2006

No. 05-5436

NATIONAL TREASURY EMPLOYEES UNION, ET AL.,
APPELLEES/CROSS-APPELLANTS

v.

MICHAEL CHERTOFF, SECRETARY,
UNITED STATES DEPARTMENT OF HOMELAND SECURITY
AND LINDA M. SPRINGER, DIRECTOR OF THE
OFFICE OF PERSONNEL MANAGEMENT,
APPELLANTS/CROSS-APPELLEES

Consolidated with
05-5437

Appeals from the United States District Court
for the District of Columbia
(No. 05cv00201)

Thomas M. Bondy, Attorney, U.S. Department of Justice,
argued the cause for appellants/cross-appellees. With him on
the briefs were Peter D. Keisler, Assistant Attorney General,
Kenneth L. Wainstein, U.S. Attorney, Gregory G. Katsas,
Deputy Assistant Attorney General, William G. Kanter, Deputy
Director, Tara Leigh Grove, Attorney, Leland E. Beck, Counsel,
Department of Homeland Security, and Mark A. Robbins, David
 2

B. Scholl, and Robin M. Richardson, Counsel, Office of
Personnel Management.
Gregory O’Duden argued the cause for appellees/cross-
appellants. With him on the briefs were Elaine D. Kaplan,
Larry J. Adkins, Robert H. Shriver, III, Mark D. Roth, Susan
Tsui Grundmann, Kim D. Mann, Sally M. Tedrow, Robert
Matisoff, and Keith R. Bolek. Charles A. Hobbie entered an
appearance.
Before: RANDOLPH and GRIFFITH, Circuit Judges, and
EDWARDS, Senior Circuit Judge.
Opinion for the Court filed by Senior Circuit Judge
EDWARDS.
ACRONYMS & ABBREVIATIONS IN OPINION
Act Homeland Security Act
Authority Federal Labor Relations Authority
Chapter 71 Codifies the Federal Services Labor-Management Statute
Chertoff I The first District Court opinion at 385 F. Supp. 2d 1 (D.D.C.
2005)
Chertoff II The second District Court opinion at 394 F. Supp. 2d 137
(D.D.C. 2005)
Department Department of Homeland Security
DHS Department of Homeland Security
Final Rule DHS Human Resources Management System (at 5 C.F.R.
Part 9701)
FLRA Federal Labor Relations Authority
FSLMS Federal Services Labor-Management Statute (codifying
“Chapter 71”)
HR system The human resources management system adopted in Final
Rule
HSA Homeland Security Act
HSLRB Homeland Security Labor Relations Board
MRP Mandatory Removal Panel under the HR system
MSPB Merit Systems Protection Board
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OPM Office of Personnel Management
regulations The Final Rule (at 5 C.F.R. Part 9701)
Secretary Secretary of Homeland Security
§ 9701 Statutory authorization for a human resources management
system at DHS
TABLE OF CONTENTS
I. Background
A. The Homeland Security Act
B. The Final Rule Adopting the HR System
1. Collective Bargaining
2. The Roles of the Homeland Security Labor Relations Board
and the Federal Labor Relations Authority
3. The Role of the Merit Systems Protection Board
C. Litigation Before the District Court
II. Analysis
A. Standing and Ripeness
B. Standard of Review
C . The Duty to Ensure Collective Bargaining
1. DHS’s Asserted Power to Unilaterally Abrogate Collective
Bargaining Agreements
2. The Scope of Bargaining
3. The Final Rule Fails to “Ensure Collective Bargaining” for
DHS Employees in Two Critical Respects – Therefore No
Deference is Due the Department’s Interpretation of the
HSA
D. The Role of the HSLRB
E. DHS’s Attempt to Regulate FLRA
F. The Role of MSPB
G. The Scope of the Injunction
III. Conclusion

EDWARDS, Senior Circuit Judge: When Congress enacted
the Homeland Security Act of 2002 (“HSA” or the “Act”) and
established the Department of Homeland Security (“DHS” or the
“Department”), it provided that “the Secretary of Homeland
 4

Security may, in regulations prescribed jointly with the Director
of the Office of Personnel Management, establish, and from
time to time adjust, a human resources management system.” 5
U.S.C. § 9701(a) (Supp. II 2002). Congress made it clear,
however, that any such system “shall – (1) be flexible; (2) be
contemporary; (3) not waive, modify, or otherwise affect
[certain existing statutory provisions relating to, inter alia,
merit hiring, equal pay, whistleblowing, and prohibited
personnel practices], [and] (4) ensure that employees may
organize, bargain collectively, and participate through labor
organizations of their own choosing in decisions which affect
them, subject to any exclusion from coverage or limitation on
negotiability established by law.” Id. § 9701(b)(1)-(4). The Act
also mandated that DHS employees receive “fair treatment in
any appeals that they bring in decisions relating to their
employment.” Id. § 9701(f)(1)(A). Section 9701 does not
mention “Chapter 71,” which codifies the Federal Services
Labor-Management Statute (“FSLMS”), 5 U.S.C. §§ 7101-
7106, 7111-7123, 7131-7135 (2000), and delineates the
framework for collective bargaining for most federal sector
employees.
In February 2005, the Department and Office of Personnel
Management (“OPM”) issued regulations establishing a human
resources management system. See Department of Homeland
Security Human Resources Management System, 70 Fed. Reg.
5272 (Feb. 1, 2005) (codified at 5 C.F.R. Chapter XCVII and
Part 9701) (“Final Rule” or “HR system”). The Final Rule, inter
alia, defines the scope and process of collective bargaining for
affected DHS employees, channels certain disputes through the
Federal Labor Relations Authority (“FLRA” or the “Authority”),
creates an in-house Homeland Security Labor Relations Board
(“HSLRB”), and assigns an appellate role to the Merit Systems
Protection Board (“MSPB”) in cases involving penalties
imposed on DHS employees.
 5

Unions representing many DHS employees (the “Unions”)
filed a complaint in District Court raising a cause of action
under the Administrative Procedure Act, 5 U.S.C. § 701 et seq.,
to challenge aspects of the Final Rule. In a detailed and
thoughtful opinion, Nat’l Treasury Employees Union v. Chertoff,
385 F. Supp. 2d 1 (D.D.C. 2005) (“Chertoff I”), the District
Court found that the regulations would not ensure collective
bargaining, would fundamentally and impermissibly alter FLRA
jurisdiction, and would create an appeal process at MSPB that
is not fair. Based on these rulings, the District Court enjoined
DHS from implementing § 9701.706(k)(6) and all of Subpart E
(§ 9701.501 et seq.) of the regulations. However, the District
Court rejected the Unions’ claims that the regulations
impermissibly restricted the scope of bargaining and that DHS
lacked authority to give MSPB an intermediate appellate
function in cases involving mandatory removal offenses. The
Government filed a motion to alter or amend the judgment, but
the District Court denied that motion. See Nat’l Treasury
Employees Union v. Chertoff, 394 F. Supp. 2d 137 (D.D.C.
2005) (“Chertoff II”). The case is now before this court on
appeal by the Government and cross-appeal by the Unions. We
affirm in part and reverse in part.
We hold that the regulations fail in two important respects
to “ensure that employees may . . . bargain collectively,” as the
HSA requires. First, we agree with the District Court that the
Department’s attempt to reserve to itself the right to unilaterally
abrogate lawfully negotiated and executed agreements is plainly
unlawful. If the Department could unilaterally abrogate lawful
contracts, this would nullify the Act’s specific guarantee of
collective bargaining rights, because the agency cannot “ensure”
collective bargaining without affording employees the right to
negotiate binding agreements.
Second, we hold that the Final Rule violates the Act insofar
as it limits the scope of bargaining to employee-specific
 6

personnel matters. The regulations effectively eliminate all
meaningful bargaining over fundamental working conditions
(including even negotiations over procedural protections),
thereby committing the bulk of decisions concerning conditions
of employment to the Department’s exclusive discretion. In no
sense can such a limited scope of bargaining be viewed as
consistent with the Act’s mandate that DHS “ensure” collective
bargaining rights for its employees. The Government argues
that the HSA does not require the Department to adhere to the
terms of Chapter 71 and points out that the Act states that the
HR system must be “flexible,” and from this concludes that a
drastically limited scope of bargaining is fully justified. This
contention is specious. Although the HSA does not compel the
Government to adopt the terms of Chapter 71 as such, Congress
did not say that Chapter 71 is irrelevant to an understanding of
how DHS is to comply with its obligations under the Act.
“Collective bargaining” is a term of art and Chapter 71 gives
guidance to its meaning. It is also noteworthy that the HSA
requires that the HR system be “contemporary” as well as
flexible. We know of no contemporary system of collective
bargaining that limits the scope of bargaining to
employee-specific personnel matters, as does the HR system,
and the Government cites to none. We therefore reverse the
District Court on this point.
We affirm the District Court’s judgment that the
Department exceeded its authority in attempting to conscript
FLRA into the HR system. The Authority is an independent
administrative agency, operating pursuant to its own organic
statute and long-established procedures. Although the
Department was free to avoid FLRA altogether, it chose instead
to impose upon the Authority a completely novel appellate
function, defining FLRA’s jurisdiction and dictating standards
of review to be applied by the Authority. In essence, the Final
Rule attempts to co-opt FLRA’s administrative machinery,
prescribing new practices in an exercise of putative authority
 7

that only Congress possesses. Nothing in the HSA allows DHS
to disturb the operations of FLRA.
Finally, we reverse without prejudice the District Court’s
finding that DHS was without authority to change the standard
by which the MSPB might mitigate a penalty for employee
misconduct. This matter is not ripe for review.
The case will be remanded to the District Court for further
proceedings consistent with this decision.
I. BACKGROUND
A. The Homeland Security Act
The Homeland Security Act, Pub. L. No. 107-296, 116 Stat.
2135 (2002), was enacted in November 2002. It established the
Department, a cabinet-level agency whose mission is to “prevent
and deter terrorist attacks[,] protect against and respond to
threats and hazards to the nation[,] . . . ensure safe and secure
borders, welcome lawful immigrants and visitors, and promote
the free-flow of commerce.” Final Rule, 70 Fed. Reg. at 5273
(internal quotation marks omitted). The Act merged 22 existing
agencies from across the federal government, integrating
170,000 employees, 17 unions, 7 payroll systems, 77 collective
bargaining units, and 80 personnel systems. See Chertoff I, 385
F. Supp. 2d at 6 n.1 (quoting 148 CONG. REC. S11017
(Statement of Sen. Thompson) (Nov. 14, 2002)).
As noted above, HSA authorizes the Secretary of Homeland
Security, with the Director of the Office of Personnel
Management, to promulgate regulations establishing a HR
system. See 5 U.S.C. § 9701 (Supp. II 2002). The Act reads in
pertinent part as follows:
(a) IN GENERAL. – Notwithstanding any other provision of this
part, the Secretary of Homeland Security may, in regulations
prescribed jointly with the Director of the Office of
Personnel Management, establish, and from time to time
 8

adjust, a human resources management system for some or
all of the organizational units of the Department of
Homeland Security.
(b) SYSTEM REQUIREMENTS. – Any system established under
subsection (a) shall –
(1) be flexible;
(2) be contemporary;
(3) not waive, modify, or otherwise affect –
(A) the public employment principles of merit and
fitness set forth in section 2301, including the
principles of hiring based on merit, fair treatment
without regard to political affiliation or other
nonmerit considerations, equal pay for equal
work, and protection of employees against reprisal
for whistleblowing;
(B) any provision of section 2302, relating to
prohibited personnel practices;
(C) (i) any provision of law referred to in section
2302(b)(1), (8), and (9); or (ii) any provision of
law implementing any provision of law referred to
in section 2302(b)(1), (8), and (9) by –
(I) providing for equal employment opportunity
through affirmative action; or
(II) providing any right or remedy available to
any employee or applicant for employment
in the civil service;
(D) any other provision of this part (as described in
subsection (c)); or
(E) any rule or regulation prescribed under any
provision of law referred to in any of the
preceding subparagraphs of this paragraph;
(4) ensure that employees may organize, bargain
collectively, and participate through labor
 9

organizations of their own choosing in decisions which
affect them, subject to any exclusion from coverage or
limitation on negotiability established by law; and
(5) permit the use of a category rating system for
evaluating applicants for positions in the competitive
service.
****
(f) PROVISIONS RELATING TO APPELLATE PROCEDURES. –
(1) SENSE OF CONGRESS. – It is the sense of Congress
that –
(A) employees of the Department are entitled to fair
treatment in any appeals that they bring in
decisions relating to their employment; and
(B) in prescribing regulations for any such appeals
procedures, the Secretary and the Director of the
Office of Personnel Management – (i) should
ensure that employees of the Department are
afforded the protections of due process; and (ii)
toward that end, should be required to consult
with the Merit Systems Protection Board before
issuing any such regulations.
(2) REQUIREMENTS. – Any regulations under this section
which relate to any matters within the purview of
chapter 77 –
(A) shall be issued only after consultation with the
Merit Systems Protection Board;
(B) shall ensure the availability of procedures which
shall – (i) be consistent with requirements of due
process; and (ii) provide, to the maximum extent
practicable, for the expeditious handling of any
matters involving the Department; and
(C) shall modify procedures under chapter 77 only
insofar as such modifications are designed to
further the fair, efficient, and expeditious
 10

resolution of matters involving the employees of
the Department.
(g) P ROVISIONS R ELATING TO L ABOR -M ANAGEMENT
RELATIONS. – Nothing in this section shall be construed as
conferring authority on the Secretary of Homeland Security
to modify any of the provisions of section 842 of the
Homeland Security Act of 2002.
Id. § 9701(a)-(b) &(f)-(g).
As may be seen from the text of the Act, § 9701 says little
about the substantive terms of the HR system. Notably,
however, the Act mandates that any HR system “ensure that
employees may organize, bargain collectively, and participate
through labor organizations of their own choosing in decisions
which affect them.” Id. § 9701(b)(4) (Supp. II 2002).
B. The Final Rule Adopting the HR System
On February 1, 2005, DHS and OPM promulgated the Final
Rule establishing the new HR system. See Final Rule, 70 Fed.
Reg. 5272. Although the HR system was established by DHS
and OPM, we will refer only to “DHS” or the “Department” as
the author of the regulations. (The District Court referred to
DHS and OPM collectively as the “Agencies.”) Our discussion
of the Final Rule will be limited to the portions of the
regulations at issue in this case, i.e., Subpart E (5 C.F.R.
§ 9701.501 et seq.), which governs labor relations at DHS, and
Subpart G (5 C.F.R. § 9701.701 et seq.), which addresses
employee appeals.
1. Collective Bargaining
As the District Court noted, the Final Rule “contain[s] an
expansive management rights provision and severely restrict[s]
collective bargaining to issues that affect individual employees.”
Chertoff I, 385 F. Supp. 2d at 9. Collective bargaining under the
new HR system is defined to mean “the performance of the
mutual obligation of a management representative of the
 11

Department and an exclusive representative of employees . . . to
meet at reasonable times and to consult and bargain in a good
faith effort to reach agreement with respect to the conditions of
employment affecting such employees.” 5 C.F.R. § 9701.504
(2006). Most “conditions of employment,” however, are placed
off-limits for bargaining. Thus, the Final Rule states:
nothing in this subpart may affect the authority of any
management official or supervisor of the Department –
(1) To determine the mission, budget, organization,
number of employees, and internal security practices of
the Department;
(2) To hire, assign, and direct employees in the
Department; to assign work, make determinations with
respect to contracting out, and to determine the
personnel by which Departmental operations may be
conducted; to determine the numbers, types, grades, or
occupational clusters and bands of employees or
positions assigned to any organizational subdivision,
work project or tour of duty, and the technology,
methods, and means of performing work; to assign and
deploy employees to meet any operational demand;
and to take whatever other actions may be necessary to
carry out the Department’s mission; and
(3) To lay off and retain employees, or to suspend,
remove, reduce in grade, band, or pay, or take other
disciplinary action against such employees or, with
respect to filling positions, to make selections for
appointments from properly ranked and certified
candidates for promotion or from any other appropriate
source.
Id. § 9701.511(a). In addition, management “is prohibited from
bargaining over the exercise of any authority under paragraph
(a) of this section or the procedures that it will observe in
 12

exercising the authorities set forth in paragraphs (a)(1) and (2)
of this section.” Id. § 9701.511(b).
The Final Rule states that management must bargain over
(1) Appropriate arrangements for employees adversely
affected by the exercise of any authority under
paragraph (a)(3) of this section and procedures which
management officials and supervisors will observe in
exercising any authority under paragraph (a)(3) of this
section; and
(2) (i) Appropriate arrangements for employees adversely
affected by the exercise of any authority under
paragraph (a)(1) or (2) of this section, provided that the
effects of such exercise have a significant and
substantial impact on the bargaining unit, or on those
employees in that part of the bargaining unit affected
by the action or event, and are expected to exceed or
have exceeded 60 days. Appropriate arrangements
within the duty to bargain include proposals on matters
such as –
(A) Personal hardships and safety measures; and
(B) Reimbursement for out-of-pocket expenses
incurred by employees as the direct result of the
exercise of authorities under this section.
Id. § 9701.511(e)(1)-(2)(i). However, “[a]ppropriate
arrangements within the duty to bargain do not include
proposals on such matters as – (A) [t]he routine assignment to
specific duties, shifts, or work on a regular or overtime basis;
and (B) [c]ompensation for expenses not actually incurred, or
pay or credit for work not actually performed.” Id.
§ 9701.511(e)(2)(ii).
In analyzing the provisions of 5 C.F.R. § 9701.511, the
District Court wryly commented:
 13

Translated into English, this Regulation would give
management full discretion over all aspects of the
Department except those that might be seen as personal
employee grievances.
Chertoff I, 385 F. Supp. 2d at 10.
The new HR system also authorizes the Department to
unilaterally abrogate lawfully negotiated and executed collective
bargaining agreements. In addition to securing DHS’s authority
to override agreements that are in existence when the HR system
takes effect, see 5 C.F.R. § 9701.506(a) (2006), the Final Rule
purports to authorize the Department to unilaterally set aside
provisions in agreements that are negotiated and executed under
the new HR system. An agreement may be invalidated by
DHS’s Secretary (or a designee) within 30 days of being
executed if found to be inconsistent with Departmental rules or
regulations. Id. § 9701.515(d)(1)-(2). Even if not explicitly
disapproved, an agreement takes effect “only if consistent with
law, the regulations in this part, Governmentwide rules and
regulations, Departmental implementing directives and other
policies and regulations, and Executive orders.” Id. at
9701.515(d)(3).
The Final Rule also gives DHS ongoing authority to
abrogate agreements after they take effect:
Provisions in existing collective bargaining agreements are
unenforceable if an authorized agency official determines
that they are contrary to law, the regulations in this part,
Governmentwide rules and regulations, Departmental
implementing directives (as provided by § 9701.506) and
other policies and regulations, or Executive orders.
Id. § 9701.515(d)(5). Moreover, as noted above, the
“management rights” provision in the Final Rule authorizes the
Department “to take whatever other actions may be necessary to
carry out the Department’s mission.” Id. § 9701.511(a)(2).
 14

Taken together, these regulations subordinate all collective
bargaining agreements to the prerogatives of management. See
Chertoff I, 385 F. Supp. 2d at 11 (“The Agencies acknowledge
that these provisions would allow DHS to reject any term of a
collective bargaining agreement negotiated under the new HR
System if a subsequent implementing directive or other policy
or regulation were deemed inconsistent.”).
2. The Roles of the Homeland Security Labor Relations
Board and the Federal Labor Relations Authority
The Federal Labor Relations Authority is an independent
administrative federal agency that was created by Title VII of
the Civil Service Reform Act of 1978, also known as the Federal
Service Labor-Management Relations Statute and “FSLMRS”,
5 U.S.C. § 7101 et. seq. (2000). The FSLMRS allows certain
non-postal federal employees to organize, bargain collectively,
and participate through labor organizations of their choice in
decisions affecting their working lives. The primary statutory
responsibilities of FLRA include: (1) resolving complaints of
unfair labor practices, (2) determining the appropriateness of
units for labor organization representation, (3) adjudicating
exceptions to arbitrator’s awards, (4) adjudicating legal issues
relating to duty to bargain/negotiability, and (5) resolving
impasses during negotiations. Id. § 7105(a)(2).
The HSA does not specify a role for FLRA under the HR
system. The Authority’s jurisdiction is limited to actions
brought pursuant to the FSLMRS. Id. DHS and many of its
employees are within the purview of the Authority’s
jurisdiction. See 5 U.S.C. §§ 7103(a)(2)(A) (2000) (defining
“employees” covered by the FSLMRS as individuals employed
in agencies), 7103(a)(3) (listing agencies that are excluded from
coverage under the FSLMRS). The Authority’s jurisdiction to
hear matters affecting DHS employees is limited, however, to
the extent that the Final Rule supplants the substantive
provisions of the FSLMRS pursuant to § 9701 of the HSA.
 15

The Final Rule establishes the Homeland Security Labor
Relations Board, composed of a rotating board of members –
appointed by the Secretary of Homeland Security – who “must
be independent, distinguished citizens of the United States who
are well known for their integrity and impartiality” and have
“expertise in labor relations, law enforcement, or
national/homeland or other related security matters.” 5 C.F.R.
§ 9701.508(a)(2) (2006). The regulations empower HSLRB to,
inter alia, (1) resolve issues relating to the scope of bargaining
under the regulations and the duty to bargain in good faith, (2)
conduct hearings and resolve complaints of unfair labor
practices, (3) resolve exceptions to arbitration awards involving
the exercise of management rights and the duty to bargain, (4)
resolve negotiation impasses, (5) conduct de novo review of
legal conclusions involving all matters within its jurisdiction,
and (6) assume jurisdiction over any matter concerning DHS
employees that has been submitted to FLRA “if the HSLRB
determines that the matter affects homeland security.” Id.
§ 9701.509(a). The regulations also authorize HSLRB to “issue
binding Department-wide opinions,” id. § 9701.509(b), which
may be subject to judicial review pursuant to 5 C.F.R.
§ 9701.508(h), id. There is no doubt that the HSLRB was
created to supplant FLRA with respect to many matters that
would otherwise be within the Authority’s jurisdiction.
Although the Final Rule obviously was adopted to replace
many of the substantive provisions of the FSLMRS, the
regulations nonetheless purport to create a limited role for
FLRA under the HR system. The Final Rule provides that any
party who wishes to obtain judicial review of a HSLRB decision
must first seek FLRA review. Id. § 9701.508(h). But the
Authority’s role is tightly circumscribed:
The Authority must defer to findings of fact and
interpretations of this part made by the HSLRB and sustain
 16

the HSLRB’s decision unless the requesting party shows
that the HSLRB’s decision was –
(i) Arbitrary, capricious, an abuse of discretion, or
otherwise not in accordance with law;
(ii) Based on error in applying the HSLRB’s
procedures that resulted in substantial prejudice to
a party affecting the outcome; or
(iii) Unsupported by substantial evidence.
Id. The Final Rule also purports to give FLRA limited authority
to determine the appropriateness of bargaining units within
DHS, supervise or conduct elections, adjudicate some unfair
labor practice disputes, and resolve some exceptions to arbitral
awards. Id. § 9701.510(a). However, HSLRB “[a]ssume[s]
jurisdiction over any matter concerning Department employees
that has been submitted to FLRA . . . if the HSLRB determines
that the matter affects homeland security.” Id. § 9701.509(b)(7).
And the Final Rule confers sole authority on HSLRB to
determine whether a particular matter “affects homeland
security” or otherwise belongs on HSLRB’s docket. Id.
§ 9701.510(b).
3. The Role of the Merit Systems Protection Board
Normally, Chapter 77 allows federal employees to appeal
adverse actions to the MSPB. As noted above, the HSA states
that DHS employees must receive due process in pursuing their
appeals, and that any modification of Chapter 77 by DHS must
be crafted in consultation with MSPB. 5 U.S.C. § 9701(f)
(Supp. II 2002). The Act also states that regulations “which
relate to any matters within the purview of chapter 77 . . . shall
modify procedures under chapter 77 only insofar as such
modifications are designed to further the fair, efficient, and
expeditious resolution of matters involving the employees of the
Department.” Id. § 9701(f)(2)(C).
 17

MSPB’s role under the HR system is sharply limited. The
regulations significantly diminish MSPB’s ability to mitigate
penalties imposed on employees. As DHS acknowledges,
normally, when MSPB reviews an agency’s penalty decision
under Chapter 77, it seeks to determine “not only whether [the
penalties] were too harsh or otherwise arbitrary but also whether
they were unreasonable under all the circumstances.” See Final
Rule, 70 Fed. Reg. at 5281 (discussing Douglas v. Veterans
Admin., 5 M.S.P.R. 280 (1981)). The Final Rule imposes a
narrower role for MSPB, stating that “MSPB may not modify
the penalty imposed by the Department unless such penalty is so
disproportionate to the basis for the action as to be wholly
without justification.” 5 C.F.R. § 9701.706(k)(6) (2006).
The Final Rule also defines a new class of “mandatory
removal offenses” for DHS employees. A mandatory removal
offense is “an offense that the Secretary determines in his or her
sole, exclusive, and unreviewable discretion has a direct and
substantial adverse impact on the Department’s homeland
security mission.” Id. § 9701.703. Appeals of mandatory
removal actions are heard by DHS’s Mandatory Removal Panel
(“MRP”). Id. § 9701.707(a). An employee may only obtain
judicial review of a mandatory removal action after first seeking
review before the MRP. Id. § 9701.707(c)(1). When MSPB
reviews an MRP decision, it “must accept the findings of fact
and interpretations of this part made by the MRP and sustain the
MRP’s decision unless the employee shows” that the underlying
decision was:
(i) Arbitrary, capricious, an abuse of discretion, or
otherwise not in accordance with law;
(ii) Caused by harmful error in the application of the
MRP’s procedures in arriving at such decision; or
(iii) Unsupported by substantial evidence.
 18

Id. MSPB is allotted a limited time in which to review MRP
decisions, and if “MSPB does not issue a final decision within
the mandatory time limit . . . MSPB will be considered to have
denied the request for review of the MRP’s decision, which will
constitute a final decision of MSPB” for purposes of judicial
review. Id. § 9701.707(c)(2)-(4).
C. Litigation Before the District Court
As soon as DHS issued its Final Rule, the Unions filed suit.
Their complaint contained four counts. First, they claimed that
the regulations violated the HSA by failing to ensure collective
bargaining rights. Second, the Unions argued that DHS
exceeded its authority under the HSA by fundamentally
transforming the role of FLRA. Third, they claimed that the
regulations violated § 9701(f)(2)’s requirement that the
personnel system provide “fair” appellate procedures. And
finally, the Unions argued that no statutory authority allowed the
regulations to grant MSPB intermediate appellate duties in MRP
cases.
On August 12, 2005, the District Court issued a decision
addressing DHS’s motion to dismiss and the Unions’ motion for
summary judgment. The court rejected DHS’s claims that the
Unions lacked standing to challenge certain regulations and that
some of their claims were unripe. Chertoff I, 385 F. Supp. 2d at
17-22. The District Court then posited that the “sine qua non of
good-faith collective bargaining is an enforceable contract once
the parties reach an agreement.” Id. at 25. The court found that
the Final Rule flouted this standard by allowing DHS to
unilaterally abrogate agreements. The District Court tellingly
noted:
A contract that is not mutually binding is not a contract.
Negotiations that lead to a contract that is not mutually
binding are not true negotiations. A system of “collective
 19

bargaining” that permits the unilateral repudiation of
agreements by one party is not collective bargaining at all.
Id. at 28. The court thus concluded that the Department was
owed no deference under Chevron U.S.A. Inc. v. Natural
Resources Defense Council, Inc., 467 U.S. 837 (1984), on this
point.
The District Court declined to accept the Unions’ argument
that the Final Rule impermissibly restricted the scope of
bargaining, however. Although the court agreed that the
regulations’ “eradication of virtually all bargaining over
‘operational’ issues will have a dramatic effect upon the work
lives of the employees the [Unions] represent,” it nonetheless
found that “Congress gave the [Department] the authority to
ignore the provisions of Chapter 71 and to establish new metes
and bounds for collective bargaining at DHS.” 385 F. Supp. 2d
at 28-29 (internal quotation marks omitted).
Similarly, the District Court rejected the Unions’ opposition
to the HSLRB and their claim that the HR system failed to
provide adequate review by a neutral arbiter. The court found
that, “by deliberately and clearly giving the [Department] the
authority to establish an HR System for DHS without reference
to the FLRA or any other adjudicative system for labor-
management disputes, Congress left it to the Executive Branch
to formulate that system.” Id. at 29.
The District Court sustained the Unions’ objections to the
role assigned to FLRA by the Final Rule. On this point, the
court held that DHS could not “commandeer the resources of an
independent agency and thereby fundamentally transform its
functions, absent a clearer indication of congressional intent.”
Id. at 32.
The District Court also found that the Final Rule violated
§ 9701(f)(2) of the HSA, because the restrictions on MSPB
review “result[ ] in a system that is not fair.” Id. at 35. The
 20

court found that, because the Final Rule specified that MSPB
could modify penalties only when they are “so disproportionate
as to be wholly without justification,” 5 C.F.R. § 9701.706(k)(6)
(2006), review would become “almost a nullity.” 385 F. Supp.
2d at 35. And, “since it is the MSPB decision that goes to the
Federal Circuit and not the employing agency decision,” the
District Court felt that DHS adverse actions would be effectively
insulated from meaningful review. Id. The District Court
therefore found that the Final Rule failed to abide the plain
meaning of the HSA.
Finally, the District Court rejected the Unions’ claim
challenging the assignment to MSPB of an intermediate
appellate function in cases involving mandatory removal
offenses. The court found that “Congress authorize[d] the
[Department] to modify the internal regulations of MSPB,” and,
therefore, DHS’s “interpretation of the HSA to that effect is
entitled to Chevron deference.” Id. at 36.
The District Court enjoined the Department from enforcing
Subpart E and one section of Subpart G (5 C.F.R.
§ 9701.706(k)(6)). It invited DHS, however, to submit a
proposed order that would “more selectively enjoin[ ] Subpart
E in a manner otherwise comporting with [the court’s]
memorandum opinion.” Id. at 38. The Department then filed a
motion to alter or amend the District Court’s judgment under
Federal Rule of Civil Procedure 59(e). The Department sought
to have the court limit its injunction to five discrete subsections
of Subpart E. The District Court denied the motion:
Having given the Court’s ruling the most narrow of
interpretations, the [Department] argue[s] that the
remainder of Subpart E is severable from five specific
regulations they state were held to be invalid. The principal
flaw in this argument is that the Court disallowed all parts
of the Regulations that allow the unilateral repudiation of
lawful contracts – whether by issuance of directives,
 21

policies and rules, or other means. Inasmuch as there are
significant additional avenues by which DHS would allow
itself to ignore its contractual obligations, and the
[Department] suggest[s] no modification to those regulatory
provisions that would bring the Regulations into conformity
with the Court’s ruling, the Court declines to modify its
August 12, 2005, Memorandum Opinion and Order.
Chertoff II, 394 F. Supp. 2d at 147.
DHS now appeals the District Court’s judgment insofar as
it holds that aspects of the HR system are inconsistent with the
HSA. The Department also argues that, even if the District
Court’s legal rulings stand, a more narrow injunction is
appropriate. The Unions cross-appeal three of the District
Court’s determinations: its denial of the Unions’ claim that the
regulations impermissibly restrict the scope of bargaining, its
conclusion sustaining the role of HSLRB, and its finding that the
expanded role of MSPB under the regulations is entitled to
deference.
II. ANALYSIS
A. Standing and Ripeness
As an initial matter, the Government argues that some of the
Unions’ claims are not presently justiciable, either for want of
standing or ripeness. The Government does “not dispute that the
. . . unions have standing, as parties likely to engage in collective
bargaining in the near future, to challenge the management
rights provisions restricting the range of topics for bargaining.”
DHS’s Br. at 28 n.5. The Government “also do[es] not dispute
that the . . . unions have standing, as parties likely to appear
before the HSLRB and the FLRA in the near future, to challenge
the roles of these administrative bodies under the new DHS
scheme.” Id. Rather, the Government argues that the Unions
lack standing to challenge the terms of the Final Rule covering
collective bargaining, because “it is entirely unclear how DHS
 22

will exercise the authority conferred by these provisions.” Id. at
27. According to the Government, “DHS may conclude that it
rarely (if ever) needs to issue additional regulations or
implementing directives that are inconsistent with collective
bargaining agreements. Likewise, DHS may rarely (if ever) act
contrary to collective bargaining agreements in exercising its
authority to take actions necessary to carry out its mission.” Id.
at 27. Thus, the Government says, “DHS’s mere reservation of
discretionary authority to take certain kinds of actions in the
future does not give rise to a presently justiciable controversy.”
Id. The Government also argues that the Unions “lack standing
to challenge the ‘wholly without justification’ standard (5 C.F.R.
§ 9701.706(k)(6)) used in MSPB review of DHS penalty
determinations. That standard is not self-defining, and it
remains to be seen how the MSPB will flesh it out in actual
cases.” DHS’s Br. at 28.
The Unions surely have standing to challenge the provisions
in the Final Rule covering collective bargaining, and their claims
surely are ripe for review. As the District Court explained,
standing to invoke the jurisdiction of the federal courts under
Article III of the Constitution requires the Unions to show that
they have (1) “suffered an ‘injury in fact’ that is (a) concrete and
particularized and (b) actual or imminent, not conjectural or
hypothetical; (2) the injury is fairly traceable to the challenged
action of the defendant; and (3) it is likely, as opposed to
merely speculative, that the injury will be redressed by a
favorable decision.” Friends of the Earth, Inc. v. Laidlaw Envtl.
Servs., Inc., 528 U.S. 167, 180-81 (2000) (citing Lujan v.
Defenders of Wildlife, 504 U.S. 555, 560-561 (1992)). A Union
can assert standing on behalf of itself as an institution or on
behalf of its members. See United Food & Commercial
Workers Union Local 751 v. Brown Group, Inc., 517 U.S. 544,
553 (1996) (“[A]n association has standing to bring suit on
behalf of its members when (a) its members would otherwise
have standing to sue in their own right; (b) the interests it seeks
 23

to protect are germane to the organization’s purpose; and (c)
neither the claim asserted nor the relief requested requires the
participation of individual members in the lawsuit.”) (quoting
Hunt v. Washington Apple Adver. Comm’n, 432 U.S. 333, 343
(1977)); see also Am. Library Ass’n v. FCC, 401 F.3d 489,
492-93 (D.C. Cir. 2005) (explaining the requirements of
associational and representational standing). The Unions easily
meet these standards.
The District Court correctly explained that the Unions’
claim does not depend on any particular act of abrogation.
Rather, their bargaining position in all negotiations is
fundamentally diminished, because they will be unable to ever
reach a mutually binding contract. Chertoff I, 385 F. Supp. 2d
at 22. The District Court’s decision also details how the Final
Rule “eliminates all bargaining over what were formerly
‘permissive’ subjects – the Regulations actually prohibit
bargaining over such topics as numbers, types, and grades of
employees assigned to any subdivision or work project; tours of
duty; technology; and means and methods of doing work.
Compare 5 C.F.R. § 9701.511(a)(2) (2006), with 5 U.S.C. §
7106(b)(1) (2000). Further, the Regulations would permit DHS
to avoid bargaining with the Unions over the procedures
management will observe when exercising its management
rights.” Chertoff I, 385 F. Supp. 2d at 28. Obviously, the
regulations will greatly diminish the role of the Unions in
collective negotiations, for they have very little about which to
bargain. And the Final Rule limits the possible fruits of
bargaining for the employees who are represented by the
Unions. These harms are far from conjectural and they will be
remedied if the Unions prevail on their claims here.
The Unions also convincingly explain the “immediate
practical impact” of the Final Rule on their organizations and
their members:
 24

The Unions cannot effectively formulate strategies or
evaluate tradeoffs to secure concessions from DHS because
DHS (and even individual managers and supervisors) could
later neutralize any concessions DHS had made at the table.
As the district court understood, it does not matter whether
DHS actually declares a contract clause unenforceable next
month or three years from now. It is the change wrought on
the bargaining process itself by the presence of these
powers that causes immediate injury to the Unions.
Unions’ Br. at 28-29 (citations and internal quotation marks
omitted); see also Clinton v. City of New York, 524 U.S. 417,
433 n.22 (1998) (noting earlier holding that “a denial of a
benefit in the bargaining process can itself create an Article III
injury, irrespective of the end result”) (citing N.E. Fla. Ch.,
Associated Gen. Contractors of Am. v. Jacksonville, 508 U.S.
656, 666 (1993)).
It does not matter that “DHS may rarely (if ever) act
contrary to collective bargaining agreements in exercising its
authority to take actions necessary to carry out its mission.”
DHS’s Br. at 27. What matters is that, under the proposed HR
system, the Unions will enter collective bargaining with little to
bargain over, and they will face an ever-present threat that DHS
will abrogate any agreement that they reach with management.
This harm to their bargaining position is certainly a real injury
that is fairly traceable to the Final Rule and would be redressed
by a favorable ruling.
The Unions’ challenge to the provisions in the Final Rule
covering collective bargaining is also ripe for review. In
evaluating ripeness, we examine the “fitness of the issues for
judicial decision and the hardship to the parties of withholding
court consideration.” Abbot Labs. v. Gardner, 387 U.S. 136,
149 (1967). Gauging an issue’s fitness for review involves
assessing: “whether the agency action is final; whether the issue
presented for decision is one of law which requires no additional
 25

factual development; and whether further administrative action
is needed to clarify the agency’s position.” Action Alliance of
Senior Citizens of Greater Phila. v. Heckler, 789 F.2d 931, 940
(D.C. Cir. 1986). None of these considerations counsels against
evaluating the collective bargaining provisions now.
As with its challenge to standing, the Government argues
that the Unions’ challenge to the collective bargaining
provisions is unfit for immediate review, because the
Department may never choose to override an agreement. This
argument is specious. As noted above, whether DHS ever
chooses to displace the outcome of collective bargaining is
irrelevant to the ripeness inquiry, since the Unions cite a threat
to the process of collectively bargaining. The Unions’ argument
that collective bargaining cannot occur without an ex ante
presumption of mutual obligation is entirely independent of any
injury that might occur if the Department eventually exercises
its discretion to vitiate an agreement. Accordingly, waiting to
observe DHS’s actions would only exacerbate the Unions’
asserted injury while doing nothing to enable judicial review.
See Nat’l Ass’n of Home Builders v. United States Army Corps
of Eng’rs, 417 F.3d 1272, 1282 (D.C. Cir. 2005) (a purely legal
challenge to final agency action is not unfit for review merely
because the application of the disputed rule remains within the
agency’s discretion).
There is also no doubt that the Unions’ challenge to the
limited scope of bargaining under the Final Rule is ripe. There
is no further agency action to be taken with respect to this
matter. The Final Rule states, without equivocation, that certain
subjects are not subject to collective bargaining. The Unions’
challenge to these regulatory limits raises “a purely legal claim
in the context of a facial challenge . . . [that] is ‘presumptively
reviewable.’” Id.
Finally, the Government asserts that the Unions lack
standing to challenge MSPB’s role in penalty mitigation cases.
 26

While we reject the Government’s standing argument, we agree
that the asserted defects in MSPB’s penalty mitigation
procedures are not yet ripe for review. “[A] purely legal claim
may be less fit for judicial resolution when it is clear that a later
as-applied challenge will present the court with a richer and
more informative factual record.” Sabre, Inc. v. Dep’t of
Transp., 429 F.3d 1113, 1119 (D.C. Cir. 2005). Although
determining whether the penalty mitigation standard comports
with the HSA’s requirement of “fair” appellate procedures
presents a purely legal question, it is a question that will “stand
on a much surer footing in the context of a specific application
of [the] regulation than could be the case in the framework of
the generalized challenge made here.” Toilet Goods Ass’n, Inc.
v. Gardner, 387 U.S. 158, 164 (1967).
And there is no real hardship to the Unions in deferring any
challenge to the penalty mitigation procedures. The disputed
procedures do not have any “direct and immediate” impact on
the Unions’ “primary conduct.” Better Gov’t Ass’n v. Dep’t of
State, 780 F.2d 86, 92, 93 (D.C. Cir. 1986). And the “mere
uncertainty as to the validity of a legal rule [does not constitute]
a hardship for purposes of the ripeness analysis.” Nat’l Park
Hospitality Ass’n v. Dep’t of Interior, 538 U.S. 803, 811 (2003).
Indeed, nothing in the disputed penalty mitigation procedures
purports to regulate the primary conduct of DHS employees, nor
do the procedures modify the potential penalties available to
DHS in the first instance. Problems with MSPB’s review will
arise only after DHS has disciplined an employee and the
penalty has been appealed. See 5 C.F.R. § 9701.707 (2006).
Any challenges to the procedures will then be ripe for review.
B. Standard of Review
As noted above, the HSA provides that “the Secretary of
Homeland Security may, in regulations prescribed jointly with
the Director of the Office of Personnel Management, establish,
and from time to time adjust, a human resources management
 27

system.” 5 U.S.C. § 9701(a) (Supp. II 2002). The authority
granted to the Department by the HSA is not without limits,
however. Congress made it clear that any HR system adopted
pursuant to the HSA “shall – (1) be flexible; (2) be
contemporary; (3) not waive, modify, or otherwise affect
[certain existing statutory provisions relating to, inter alia, merit
hiring, equal pay, whistleblowing, and prohibited personnel
practices], [and] (4) ensure that employees may organize,
bargain collectively, and participate through labor organizations
of their own choosing in decisions which affect them, subject to
any exclusion from coverage or limitation on negotiability
established by law.” Id. § 9701(b)(1)-(4). The HSA also
mandates that DHS employees receive “fair treatment in any
appeals that they bring in decisions relating to their
employment.” Id. § 9701(f)(1)(A).
The question here is whether the disputed portions of the
HR system adhere to the limitations imposed by § 9701. In
particular, we must determine whether, in promulgating the
Final Rule, DHS reasonably interpreted the controlling
provisions of the HSA. In reviewing the Department’s
interpretations of the Act, we apply the familiar standards
enunciated by the Supreme Court in Chevron and United States
v. Mead Corp., 533 U.S. 218 (2001). Under these standards, we
first employ the traditional tools of statutory construction to
determine whether Congress has spoken to the precise question
at issue. Chevron, 467 U.S. at 842-43 & n.9. “If the intent of
Congress is clear, that is the end of the matter; for the court, as
well as the Agency, must give effect to the unambiguously
expressed intent of Congress.” Id. at 842-43. However, where
a statute is ambiguous and the agency has acted within its
delegated authority, we will defer to the agency’s interpretation
only if it is reasonable. Am. Library Ass’n. v. FCC, 406 F.3d
689, 698-99 (D.C. Cir. 2005) (citing Chevron, 467 U.S. at 843-
44).
 28

An “agency’s interpretation of [a] statute is not entitled to
deference absent a delegation of authority from Congress to
regulate in the areas at issue.” Motion Picture Ass’n of Am., Inc.
v. FCC, 309 F.3d 796, 801 (D.C. Cir. 2002). The Court’s
decision in Mead reiterates the command in Chevron that
deference to an agency’s interpretation of a statute is due only
when the agency acts pursuant to delegated authority. Mead,
533 U.S. at 226-27; see also Cal. Indep. Sys. Operator Corp. v.
FERC, 372 F.3d 395, 399 (D.C. Cir. 2004); Bluewater Network
v. EPA, 370 F.3d 1, 11 (D.C. Cir. 2004); AT&T Corp. v. FCC,
323 F.3d 1081, 1086 (D.C. Cir. 2003).
Chevron “requires a reviewing court to ask . . . whether an
agency’s specific course of action is permitted by statute. It is
possible that a statute might grant an agency authority to act in
some fashion, but not in the particular manner it has chosen.”
Arent v. Shalala, 70 F.3d 610, 619 n.1 (D.C. Cir. 1995) (Wald,
J., concurring). This point is particularly important here,
because the Unions do not question DHS’s authority to
promulgate regulations defining collective bargaining; they
contend instead that the specific regulatory standards selected by
the Department to narrow the scope of bargaining and allow for
the unilateral abrogation of agreements do not give effect to the
HSA’s command to “ensure that employees may organize,
bargain collectively, and participate through labor organizations
of their own choosing in decisions which affect them.” 5 U.S.C.
§ 9701(b)(4) (Supp. II 2002). Likewise, the Unions do not
doubt that the Department could have opted to have disputes
arising under the HR system be resolved by FLRA pursuant to
the terms of the Federal Services Labor-Management Statute
(Chapter 71); rather, they contend that DHS had no authority to
conscript the Authority to function under the HR system on
terms defined by the Department.
 29

C . The Duty to Ensure Collective Bargaining
In a vain effort to defend the Final Rule’s construction of a
purported structure for collective bargaining, the Government
points to § 9701(a), which says that the Department is
authorized to promulgate a HR system “[n]otwithstanding any
other provision of this part,” and § 9701(b)(3), which says that
any such system “shall – . . . (3) not waive, modify, or otherwise
affect [certain existing statutory provisions relating to, inter alia,
merit hiring, equal pay, whistleblowing, and prohibited
personnel practices].” The Government appears to argue that,
read together, these two provisions authorize DHS to waive any
provision relating to employee relations, save those specifically
listed in § 9701(b)(3), and then to do entirely as it pleases in
establishing a HR system. This argument is completely
unconvincing. When § 9701 is read in its entirely, it is
absolutely clear that DHS does not have a free hand to construct
a HR system entirely as it prefers. The HSA does not require
the Department to adopt any existing human resources
management system, but it does specify “system requirements”
that DHS must follow in promulgating a HR system. See id.
§ 9701(b). Thus, the system must be “flexible” and
“contemporary,” id. § 9701(b)(1)-(2); it must comply with
certain provisions of law, id. § 9701(b)(3); and, it must include
several substantive features, including “ensur[ing] that
employees may . . . bargain collectively,” id. § 9701(b)(4). In
other words, DHS’s discretion to establish “a human resources
management system for some or all of the organizational units
of the Department of Homeland Security,” id. § 9701(a), is
limited by all of the requirements listed in § 9701(b). Most
importantly, at least with respect to the issues in this case, when
Congress added the substantive requirement in the HSA
guaranteeing DHS employees the right to bargain collectively,
it obviously intended for this requirement to be construed
reasonably and applied fully.
 30

Although the HSA requires the Department to “ensure” that
their employees may bargain collectively, the Act does not
define collective bargaining. Fortunately, this is not a term
without meaning. Indeed, “collective bargaining” is a term of
art in the federal sector that has been defined by Congress in the
FSLMS:
“[C]ollective bargaining” means the performance of the
mutual obligation of the representative of an agency and the
exclusive representative of employees in an appropriate unit
in the agency to meet at reasonable times and to consult and
bargain in a good-faith effort to reach agreement with
respect to the conditions of employment affecting such
employees and to execute, if requested by either party, a
written document incorporating any collective bargaining
agreement reached, but the obligation referred to in this
paragraph does not compel either party to agree to a
proposal or to make a concession.
5 U.S.C. § 7103(a)(12) (2000). The Government’s incantation
of the truism that collective bargaining “is not a static concept
with a fixed meaning in all circumstances,” DHS’s Br. at 32, is
thus beside the point. In the context of federal sector labor-
relations, collective bargaining is a term of art with a well-
established statutory meaning. The Department presumably
understood this, because its Final Rule adopts essentially the
same definition as the one in the FSLMS:
Collective bargaining means the performance of the mutual
obligation of a management representative of the
Department and an exclusive representative of employees
in an appropriate unit in the Department to meet at
reasonable times and to consult and bargain in a good faith
effort to reach agreement with respect to the conditions of
employment affecting such employees and to execute, if
requested by either party, a written document incorporating
any collective bargaining agreement reached, but the
 31

obligation referred to in this paragraph does not compel
either party to agree to a proposal or to make a concession.
5 C.F.R. § 9701.504 (2006). And “collective bargaining
agreement” is defined in nearly identical terms in the FSLMS
and under the Final Rule, as “an agreement entered into as a
result of collective bargaining pursuant to the provisions of this
subpart.” Compare 5 U.S.C. § 7103(a)(8) (2000), with 5 C.F.R.
§ 9701.504 (2006).
There is a presumption that Congress uses the same term
consistently in different statutes. See Smith v. City of Jackson,
Miss., 544 U.S. 228, 233 (2005) (emphasizing the “premise that
when Congress uses the same language in two statutes having
similar purposes, particularly when one is enacted shortly after
the other, it is appropriate to presume that Congress intended
that text to have the same meaning in both statutes”); see also
Hawaiian Airlines v. Norris, 512 U.S. 246, 254 (1994); cf.
Merrill Lynch, Pierce, Fenner & Smith, Inc. v. Dabit, 126 S. Ct.
1503, 1513 (2006) (“[W]hen ‘judicial interpretations have
settled the meaning of an existing statutory provision, repetition
of the same language in a new statute indicates, as a general
matter, the intent to incorporate its . . . judicial interpretations as
well.’”) (quoting Bragdon v. Abbot, 524 U.S. 624, 645 (1998))
(ellipsis in original). Given the parallel provisions in the
FSLMS, the HSA, and the Final Rule, it is clear that “collective
bargaining” under the HSA gains meaning from the application
of that same term under Chapter 71. Indeed, these parallel
provisions give “a strong indication” that the common term
should be construed consistently under each statute. Indep.
Fed’n of Flight Attendants v. Zipes, 491 U.S. 754, 758 n.2
(1989); see also Kooritzky v. Herman, 178 F.3d 1315 (D.C. Cir.
1999) (similar language in two different statutes is strong
indication that the language is to be interpreted alike).
The Government argues that the Department was free to
“modify the collective bargaining provisions” of Chapter 71 in
 32

promulgating a new HR system pursuant to the HSA. DHS’s
Br. at 31. This is undoubtedly correct. But nothing in the HSA
suggests that the meaning of “collective bargaining” under
Chapter 71 could be disregarded by the Department in its
promulgation of the HR system. There are many “provisions”
relating to collective bargaining in Chapter 71 – e.g., resort to
FLRA, determination of appropriate units, handling of refusal-
to-bargain complaints, exceptions to arbitral awards, and use of
an impasses panel – that the Department was free to ignore in its
Final Rule. The core meaning of “collective bargaining” itself,
however, could not be ignored or supplanted. Why? Because
the HSA states explicitly that, in establishing a new HR system,
the Department “shall”
ensure that employees may organize, bargain collectively,
and participate through labor organizations of their own
choosing in decisions which affect them, subject to any
exclusion from coverage or limitation on negotiability
established by law.
5 U.S.C. § 9701(b)(4) (Supp. II 2002). This statutory obligation
is mandatory, not optional. And if, as shown above, “collective
bargaining” means the same thing under both the HSA and the
FSLMS, then application of the term under the latter statute
cannot possibly be irrelevant to an understanding of how the
term applies under the former.
With these considerations in mind, we now review the
provisions of the Final Rule to determine whether the
Department’s regulations “ensure that employees may . . .
bargain collectively,” as the HSA requires. The obvious
problem with the HR system is that very few “conditions of
employment” are subject to meaningful bargaining, and the few
conditions over which the parties can negotiate may be
unilaterally abrogated by management. A system of this sort
does not even give an illusion of collective bargaining.
 33

1. DHS’s Asserted Power to Unilaterally Abrogate
Collective Bargaining Agreements
The most extraordinary feature of the Final Rule is that it
reserves to the Department the right to unilaterally abrogate
lawfully negotiated and executed agreements. This is plainly
impermissible under the HSA. If the Department could
unilaterally abrogate lawful contracts, this would nullify the
statute’s specific guarantee of collective bargaining rights,
because DHS cannot “ensure” collective bargaining without
affording employees the right to negotiate binding agreements.
The District Court’s decision on this point is exactly right:
The Regulations fail because any collective bargaining
negotiations pursuant to its terms are illusory: the Secretary
retains numerous avenues by which s/he can unilaterally
declare contract terms null and void, without prior notice to
the Unions or employees and without bargaining or
recourse.
Chertoff I, 385 F. Supp 2d at 25.
There can be no doubt that the Final Rule authorizes DHS
to unilaterally abrogate any collective bargaining agreement that
is negotiated under the HR system, not just those in existence
when the Final Rule was promulgated. Indeed, the Government
conceded this point, before the District Court, in its briefs to this
court, and during oral argument. See Tr. of Oral Argument at
6-9 (Government counsel explicitly affirmed his understanding
of the provisions in Subpart E as permitting DHS to override
any collectively bargained agreement it enters, not just those
extant when the regulations take effect.). We “‘give substantial
deference to an agency’s interpretation of its own regulations.’”
Castlewood Prods., L.L.C. v. Norton, 365 F.3d 1076, 1082 (D.C.
Cir. 2004) (quoting Thomas Jefferson Univ. v. Shalala, 512 U.S.
504, 512 (1994)). Accordingly, “‘the agency’s interpretation
must be given controlling weight unless it is plainly erroneous
 34

or inconsistent with the regulation.’” Id. (quoting Shalala, 512
U.S. at 512).
As the District Court found, the Government’s proffered
interpretation of the regulations is consistent with the language
employed in key provisions of Subpart E. An agreement
negotiated pursuant to the HR system will not take effect if
found by DHS officials to be inconsistent with Department rules
or regulations. Id. § 9701.515(d)(1)-(2). Even if not explicitly
disapproved, an agreement takes effect only if it comports with,
inter alia, the Department’s “implementing directives and other
policies and regulations.” Id. at § 9701.515(d)(3). Most
significantly, the regulations give DHS ongoing authority to
render collective bargaining agreements “unenforceable if an
authorized agency official determines that they are contrary to
. . . Departmental implementing directives . . . and other policies
and regulations.” Id. § 9701.515(d)(5). Moreover, in elaborating
the list of “management rights,” the regulations state that
“nothing in [Subpart E of the regulations] may affect the
authority of any management official or supervisor of the
Department . . . to take whatever . . . actions may be necessary to
carry out the Department’s mission.” Id. § 9701.511(a), (a)(2).
Read together, these provisions permit unilateral abrogation of
collectively bargained contracts.
In the Government’s view, the provisions at issue represent
a reasonable, and therefore permissible, understanding of
“collective bargaining.” Congress required DHS to craft a HR
system that is “flexible” and “contemporary,” 5 U.S.C.
§ 9701(b)(1)-(2) (Supp. II 2002), and the Government insists that
DHS deserves deference in weighing those objectives in its
efforts to ensure collective bargaining. The Government’s
arguments on this point are completely unconvincing, because
they ignore Congress’ explicit command that any HR system
“ensure that employees may . . . bargain collectively,” 5 U.S.C.
§ 9701(b)(4) (Supp. II 2002). A system that gives the
 35

Department a free hand to selectively vitiate collectively
bargained agreements does not obey that command.
As noted above, “collective bargaining” is a term of art,
defined in other statutory schemes, and DHS was not free to treat
it as an empty linguistic vessel. See Smith, 544 U.S. at 233.
None of the major statutory frameworks for collective bargaining
allows a party to unilaterally abrogate a lawfully executed
agreement. See, e.g., 5 U.S.C. §§ 7102(2), 7103(a)(12) (2000)
(federal sector bargaining); 29 U.S.C. § 158(a)(5), (b)(3) & (d)
(2000) (private sector bargaining); 39 U.S.C. § 1206 (2000)
(U.S. Postal Service); 45 U.S.C. § 152 (Fourth) (2000) (common
carriers). Indeed, no statutorily mandated collective bargaining
system that we are aware of dispenses with the premise that
negotiated agreements bind both parties – no matter what the
scope of bargaining was ex ante. Indeed, when pressed at oral
argument, the Government could provide no counterexample.
See Tr. of Oral Argument at 9-10.
The HR system embodied in the Final Rule has no
antecedent, because it undermines the very idea of collective
bargaining. Structuring collective bargaining so that labor and
management meet to negotiate terms until they reach an accord
or an impasse only makes sense on the assumption that each
side’s evolving bargaining position will reflect a series of trade-
offs that move the parties toward a mutually satisfactory end
point. It is therefore dispositive that the HSA refers to collective
bargaining – not merely “consultation” or “notification” – in
describing the Department’s obligations under § 9701(b)(4).
When Congress intended to deny collective bargaining rights and
provide only advisory roles to employee representatives, it used
different language. Compare 5 U.S.C. § 9701(b)(4) (Supp. II
2002) (“bargain collectively”), with id. § 9701(e)
(“collaboration” or “consultation” through “meet and confer”
process), and 5 U.S.C. § 7113 (2000) (“national consultation
rights”).
 36

Finally, the Government’s position not only defies the well-
understood meaning of collective bargaining, it also defies
common sense. As noted above, collective bargaining is a
method of structuring the formation of labor contracts, and the
notion of mutual obligation is inherent in contract law. See
Restatement (Second) of Contracts § 3 (1979) (“An agreement
is a manifestation of mutual assent on the part of two or more
persons. A bargain is an agreement to exchange promises or to
exchange a promise for a performance or to exchange
performances.”). To imagine that a system might “ensure
collective bargaining” without imposing mutual obligations is
simply bizarre.
We emphasize that our holding relates only to DHS’s power
to abrogate collectively bargained contracts executed pursuant to
the HR system. The Unions do not contest the Department’s
authority to supersede labor contracts inherited from the
previously independent agencies that now constitute DHS. See
5 C.F.R. § 9701.506(a) (2006). Our holding does nothing to
undercut the Department’s authority to exercise that power.
2. The Scope of Bargaining
The right to negotiate collective bargaining agreements that
are equally binding on both parties is of little moment if the
parties have virtually nothing to negotiate over. That is the result
of the Final Rule adopted by DHS. The scope of bargaining
under the HR system is virtually nil, especially when measured
against the meaning of collective bargaining under Chapter 71.
And this is saying a lot, because the scope of bargaining under
Chapter 71 is extraordinarily narrow. This was made clear in
NTEU v. FLRA, 910 F.2d 964 (D.C. Cir. 1990) (en banc), where
we pointed out
the unique structure of the federal sector labor relations
statute, which, because of “the special requirements and
needs of the Government,” 5 U.S.C. § 7101(b), excludes
 37

from negotiations a host of subjects that employers would be
obliged to bargain about in the private sector. For instance,
section 7106(a), the “management rights” provision of the
statute, ensures that agencies need not bargain over the
number of employees, their hiring, assignment, and
discharge, the right to contract out work, and the authority
“to take whatever actions may be necessary to carry out the
agency mission during emergencies.” 5 U.S.C. § 7106(a).
Id. at 968. There is no doubt that the restricted scope of
bargaining under Chapter 71 gives federal agencies great
“flexibility” in collective bargaining, of the sort contemplated by
5 U.S.C. § 9701(b)(1) (Supp. II 2002).
Having reviewed the Final Rule with care, we find that the
limited scope of bargaining under the proposed HR system
violates the Act, and on this point we reverse the District Court.
In upholding the narrow scope of bargaining permitted under the
HR system, the District Court rested its analysis primarily on the
HSA’s enumeration of certain nonwaivable provisions of law.
Since “Congress gave the [Department] the authority to ignore
the provisions of Chapter 71 and to establish new metes and
bounds for collective bargaining at DHS,” the court felt
compelled to defer to DHS’s new framework. Chertoff I, 385 F.
Supp. 2d at 28-29. This line of reasoning fails.
The problem with the District Court’s analysis and with the
Government’s arguments in the same vein is that they elevate
one provision of the HSA over another: the Department’s
authority to modify the provisions of Chapter 71 is given
precedence over § 9701(b)(4)’s command to ensure collective
bargaining. If DHS enjoys unlimited discretion to define the
“metes and bounds” of collective bargaining under the HSA, it
can whittle the scope of bargaining so drastically as to render
collective bargaining meaningless. Under the District Court’s
view, there is no stopping point – the court recognizes nothing
 38

inherent in federal sector collective bargaining that fixes the
scope of bargaining in the absence of Chapter 71.
This reasoning is fatally flawed, because, as noted above,
nothing in the HSA suggests that the meaning of “collective
bargaining” under Chapter 71 can be disregarded by the
Department in its promulgation of the HR system. If, as we
have shown, “collective bargaining” in the HSA derives its
meaning from the same term in the FSLMRA, then application
of the term under the latter statute must guide our understanding
of how the term applies under the former. We cannot assume
that Congress deployed a term of art, with a long history of legal
usage, while contemplating that DHS could completely drain that
term of significance.
A core element of collective bargaining is a requirement that
labor and management bargain in good faith over conditions of
employment for purposes of reaching an agreement. Indeed, the
Final Rule purports to adopt this understanding of collective
bargaining in its definition of the term. See 5 C.F.R. § 9701.504
(2006). The scope of bargaining under the Final Rule, however,
does not come close to reaching this core element. As the
District Court found, “[t]he HR System essentially reduces
collective bargaining to employee-specific terms affecting
discipline, discharge and promotion.” Chertoff I, 385 F. Supp.
2d at 29. This is so far short of the meaning of collective
bargaining under Chapter 71 that we are constrained to hold that
the Final Rule does not meet the HSA’s requirement of
bargaining in good faith over conditions of employment for
purposes of reaching an agreement.
It is readily apparent that the Final Rule reflects a flagrant
departure from the norms of “collective bargaining” underlying
Chapter 71. In fact, the Government acknowledges the striking
disparity between the FSLMS framework and the system
established for DHS. See DHS’s Reply Br. at 13. Even a quick
glance at the Final Rule confirms what the Government
 39

acknowledges, i.e., that the HR system shrinks the scope of
bargaining well below what Chapter 71 provides. For example,
“permissive” areas of bargaining under Chapter 71 are off limits
for negotiation at DHS. Compare 5 U.S.C. § 7106(b)(1) (2000),
with 5 C.F.R. § 9701.511(a)(2) & (b) (2006). This distinction is
critical. Procedures for exercising rights affecting issues like
work assignments and deployments are negotiable under Chapter
71, but not under the HR system. And, under the HR system,
when management exercises one of its rights, it need not provide
notice to labor representatives in advance. 5 C.F.R.
§ 9701.511(d) (2006). Moreover, the proposed HR system gives
DHS broad new authority “to take whatever other actions may be
necessary to carry out the Department’s mission.” Id.
§ 9701.511(a)(2) (2006). Presumably, this provision empowers
DHS to take any matter off the bargaining table at any time,
regardless of what concessions have already been made by union
representatives. No analogous power exists anywhere in Chapter
71. Most strikingly, DHS management is prohibited from
negotiating over the “procedures it will observe in exercising”
the authority laid out in subsections (a)(1) and (a)(2) of the
management rights provision. Id. § 9701.511(b). Instead,
management must merely “confer” with labor representatives
about the procedures it will use. Id. § 9701.511(c). These
provisions stand in sharp contrast to Chapter 71’s obligation to
bargain over the procedures used to exercise management rights.
5 U.S.C. § 7106(b)(2) (2000).
Finally, Chapter 71 requires agencies to bargain over
“appropriate arrangements” for employees adversely affected by
the exercise of a management right. Id. § 7106(b)(3). The HR
system shrinks such bargaining considerably. For the
“operational matters” committed to management discretion
under § 9701.511(a)(1)-(a)(2), DHS must negotiate appropriate
arrangements only when “the effects of [management’s exercise
of a right] have a significant and substantial impact on the
bargaining unit, or on those employees in that part of the
 40

bargaining unit affected by the action or event, and are expected
to exceed or have exceeded 60 days.” Id. § 9701.511(e)(2)(i).
Even under these narrow circumstances, appropriate arrangement
proposals must be limited to such matters as personal hardships
and safety measures, or reimbursements for out-of-pocket
expenses. Id. § 9701.511(e)(2)(i)(A)-(B). The Final Rule thus
effectively strips the term “collective bargaining” of any real
meaning in limiting the scope of bargaining.
Our decision in Amalgamated Transit Union Int’l, AFL-CIO
v. Donovan, 767 F.2d 939 (D.C. Cir. 1985) (“ATU”), although
not controlling here, is instructive. The Urban Mass
Transportation Act allowed formerly private transit companies
that had been transferred to public ownership to receive federal
funds if the Secretary of Labor certified that the transit authority
had forged a “fair and equitable” labor protective agreement with
its union that included, inter alia, provisions ensuring employees
of “the continuation of collective bargaining rights.” See id. at
940 (explicating 49 U.S.C. App. § 1609(c) (1982)). We found
that “collective bargaining” had accumulated significance
through its history of usage. The ATU court rejected the
Secretary’s invitation to measure the right to collective
bargaining by reference to state law:
Congress neither imposed upon the states the precise
definition of “collective bargaining” established by the
[National Labor Relations Act] and the case law that has
developed under that Act, nor did it employ a term of art
devoid of all meaning, leaving the states free to interpret and
define it as they saw fit. Instead, Congress used the phrase
generically, incorporating within the statute the commonly
understood meaning of “collective bargaining.” The 1964
Congress was not writing on a clean slate. Then as now,
collective bargaining was universally understood to require,
at a minimum, good faith negotiations, to a point of
 41

impasse, if necessary, over wages, hours and other terms
and conditions of employment.
Id. at 949. We noted that those principles “have long been the
bedrock of collective bargaining in the federally-regulated
private sector” and that they had also “provided the common
denominator of the public sector collective bargaining schemes
enacted by the states.” Id. Accordingly, we acknowledged that
the statute attempted “a delicate balance” by conditioning federal
transportation aid on collective bargaining rights while not
incorporating the NLRA wholesale, but we deemed it “clear that
federal labor policy would dictate the substantive meaning of
collective bargaining for purposes of section 13(c).” Id. at 950.
A similar analysis applies here, because Congress “was not
writing on a clean slate” when it enacted the HSA. The
Government would have us impute to Congress the expectation
that, as used in the HSA, “collective bargaining” has no
particular content, thus leaving DHS wholly unconstrained to
define the term as it wishes. Because we have no evidence to
indicate that Congress chose to “employ a term of art devoid of
all meaning,” we conclude that Chapter 71 must inform the
substantive meaning of collective bargaining for purposes of
§ 9701(b)(4). Accordingly, the scope of bargaining under HSA
must be guided by the federal labor policy underlying the
permissible scope of bargaining in the federal sector. The
parameters of the scope of collective bargaining under the
FSLMS are narrow and flexible, so Chapter 71 gives appropriate
guidance to DHS in how to ensure collective bargaining for its
employees. See, e.g., FLRA v. OPM, 778 F.2d 844, 845 (D.C.
Cir. 1985) (“[T]he scope of collective bargaining is far narrower
in the federal sector than in the private sector.”) (citing H.
ROBINSON, NEGOTIABILITY IN THE FEDERAL SECTOR 189
(1981)). For example, Chapter 71’s enumeration of management
rights places a number of substantive topics off limits for
bargaining, 5 U.S.C. § 7106(a) (2000), but it also requires that
 42

agencies negotiate over the “impact and implementation” of
those rights, id. § 7106(b). See FLRA v. U.S. Dep’t of Justice,
994 F.2d 868, 871-72 (D.C. Cir. 1993). This general framework
must be followed by DHS to ensure collective bargaining for its
employees, as required by the HSA.
Using Chapter 71 to give content to the HSA’s collective
bargaining requirement is perfectly consistent with the Act’s
authorization to proceed “notwithstanding” many sources of law.
Chapter 71 has numerous provisions that do not directly inform
the definition of collective bargaining; many would impede
DHS’s flexibility if it lacked the freedom to waive them. Most
conspicuously, Chapter 71 envisions a significant role for FLRA:
it establishes that the “Authority shall provide leadership in
establishing policies and guidance relating to matters under this
chapter” and that, with specified exceptions, it should “be
responsible for carrying out the purpose of this chapter.” 5
U.S.C. § 7105(a)(1) (2000). It also gives the Authority extensive
power to investigate, adjudicate, and enforce labor practices in
the federal sector. Id. § 7105(a)(2) & (g). Yet, it is beyond
dispute that the HSA permits DHS to bypass the Authority
altogether in setting up a HR system. Similarly, Chapter 71
establishes a process for the resolution of bargaining impasses,
id. § 7119, which DHS chose not to incorporate into its HR
system. Chapter 71 also proscribes numerous unfair labor
practices. See id. § 7116. The ability to selectively waive or
modify § 7116 clearly comports with the HSA’s stated
imperatives of flexibility and contemporaneity.
Furthermore, it must be recalled that the duty to bargain
does not require agreement, only a good faith effort by the
parties to reach agreement. Id. §§ 7103(a)(12), 7114(a)(4) & (b).
Additionally, employees in the federal sector are forbidden from
striking, Prof’l Air Traffic Controllers Org. v. FLRA, 685 F.2d
547, 550 (D.C. Cir. 1982), so they can add no economic leverage
to their bargaining demands as can employees in the private
 43

sector. And, most importantly, employees covered by DHS’s
HR system will not have the advantage of an impasses panel –
which can impose conditions of employment if the parties’
negotiations reach an impasse, see 5 U.S.C. § 7119(c)(5)(B)(iii)
(2000) – as do employees who are covered by Chapter 71. In
other words, if the Department follows the core notion of
“collective bargaining” in the federal sector in defining the scope
of bargaining under the HR system, as the Act requires, DHS
will have extraordinary “flexibility” to achieve the goals of the
statute and, at the same time, “ensure” that the limited benefits
flowing from a “contemporary” program of collective bargaining
in the federal sector are made available to its employees. The
Act mandates no less.
3. The Final Rule Fails to Ensure Collective Bargaining
for DHS Employees in Two Critical Respects –
Therefore No Deference is Due the Department’s
Interpretation of the HSA
The foregoing discussion makes it clear that, insofar as the
Final Rule permits the Department to abrogate final agreements
and narrowly limits the scope of bargaining to employee-specific
terms, the regulations fail to “ensure” collective bargaining for
DHS employees. In these circumstances, we owe no deference
to DHS’s interpretation of the HSA.
As we explain above, Chevron analysis typically “is focused
on discerning the boundaries of Congress’ delegation of
authority to the agency; and as long as the agency stays within
that delegation, it is free to make policy choices in interpreting
the statute, and such interpretations are entitled to deference.”
Aid Ass’n for Lutherans v. United States Postal Serv., 321 F.3d
1166, 1174 (D.C. Cir. 2003) (citation and inner quotation marks
omitted). An agency construction of a statute cannot survive
judicial review, however, if a contested regulation reflects an
action that is inconsistent with the agency’s authority. It does
not matter whether the unlawful action arises because the
 44

disputed regulation defies the plain language of a statute or
because the agency’s construction is utterly unreasonable and
thus impermissible. Am. Library Ass’n, 406 F.3d at 699 (citing
Aid Ass’n for Lutherans, 321 F.3d at 1174).
In this case, as we have shown, DHS’s Final Rule defies the
plain language of the Act, because it renders “collective
bargaining” meaningless; and it is utterly unreasonable and thus
impermissible, because it makes no sense on its own terms. The
Government’s argument is premised on a view that DHS’s
authority to modify the provisions of Chapter 71 takes
precedence over § 9701(b)(4)’s command to ensure collective
bargaining. As we have explained, this is simply wrong. The
agency’s policy preferences cannot trump the words of the
statute.
D. The Role of the HSLRB
The Unions also argue that DHS’s HR system impermissibly
shrinks the collective bargaining requirement in a third way: by
funneling bargaining disputes to HSLRB. The Unions object to
HSLRB, because, in their view, the new board lacks sufficient
independence to provide the neutral adjudication required of a
collective bargaining regime. As noted above, HSLRB is
composed of members appointed by the Secretary of Homeland
Security. 5 C.F.R. § 9701.508(a)(1) (2006). The Secretary also
retains discretion to remove HSLRB members “on the same
grounds as an FLRA member,” id. § 9701.508(a)(2), i.e., “upon
notice and hearing and only for inefficiency, neglect of duty, or
malfeasance in office,” 5 U.S.C. § 7104(b) (2000). Among other
things, HSLRB adjudicates disputes concerning the scope of
bargaining and the duty to bargain in good faith, most unfair
labor practice charges, disputes concerning information requests,
exceptions to arbitration awards in cases involving the exercise
of management rights or the duty to bargain, and negotiation
impasses. 5 C.F.R. § 9701.509(a)(1)-(5) (2006). The Unions
insist that concentrating so much authority in a body effectively
 45

run by management obliterates any chance for review by a
neutral arbiter. Existing labor relations statutes, the Unions
argue, reveal Congress’ understanding that neutral arbitration is
fundamental to collective bargaining in the federal sector. The
regulations thus violate the statute, according to the Unions, by
assigning responsibility for adjudicating labor disputes to a
management-controlled board.
Our holding in Part E below, relating to the role of FLRA
under the HR system, renders this issue unripe for resolution.
The Final Rule is flawed insofar as it allows DHS to encroach on
FLRA’s operations without the statutory authority to do so.
Accordingly, we affirm the District Court’s judgment vacating
the portions of the regulations pertaining to the Authority. We
have no way to know, however, what form the revised
regulations will take. In particular, we have no way of knowing
what HSLRB’s role will be under a revised Final Rule, nor do we
know whether DHS will opt to create other boards to carry out
the functions now assigned to FLRA. Indeed, we do not know
whether DHS might elect to allow disputes arising under the HR
system to be resolved by FLRA pursuant to the Authority’s
defined jurisdiction under Chapter 71. In short, the issues
relating to the efficacy of HSLRB under the HR system are
premature.
E. DHS’s Attempt to Regulate FLRA
The Government appeals the District Court’s finding that
DHS exceeded its statutory authority by assigning new protocols
to FLRA. The District Court was “convinced that [DHS] cannot
commandeer the resources of an independent agency and thereby
fundamentally transform its functions, absent a clearer indication
of congressional intent.” Chertoff I, 385 F. Supp. 2d at 32. We
agree.
As explained above, the Final Rule quite clearly intends to
impose a novel procedural scheme on FLRA, even though
 46

nothing in the HSA authorizes DHS to regulate the work of the
Authority or alter its statutory jurisdiction. The Authority is an
independent agency operating pursuant to its organic statute
under Chapter 71. See 5 U.S.C. § 7104 (2000). Chapter 71
prescribes FLRA’s functions and authority. The Authority is
empowered to make a host of determinations related to labor
negotiations and disputes, including “resolv[ing] issues relating
to the duty to bargain in good faith,” “conduct[ing] hearings and
resolv[ing] complaints of unfair labor practices,” and
“resolv[ing] exceptions to arbitrator’s awards” under Chapter 71.
Id. § 7105(a)(2)(E) & (G)-(H). DHS’s Final Rule attempts to
conscript FLRA into reviewing a narrowly defined area of cases
under an intensely deferential standard of review. See 5 C.F.R.
§ 9701.508(h) (2006). Whereas FLRA’s statutory function
involves the exercise of judgment and significant authority, the
Final Rule shrinks the Authority’s role, using it only to guard
against substantial adjudicative failures by HSLRB. Indeed,
under the Final Rule, FLRA’s role with respect to any matter
relating to a DHS employee would evaporate if HSLRB
“determines that the matter affects homeland security.” Id.
§ 9701.509(a)(7); see also id. § 9701.510(b). The role of FLRA
under the HR system bears no resemblance to its normal
statutory role, and conforming to the regulations would therefore
require FLRA to substantially change its operating functions.
The Government fruitlessly searches 5 U.S.C. § 9701 for the
authority necessary to rearrange FLRA’s operations. To justify
its purported exercise of authority over FLRA, the Government
relies, first, on § 9701(a)’s mandate to establish a new human
resources scheme “notwithstanding any other provision of this
part.” But this language does not justify DHS’s attempt to
regulate FLRA, because the cited provision applies only to
regulations relating to “a human resources management system
for some or all of the organizational units of the Department of
Homeland Security.” 5 U.S.C. § 9701(a) (Supp. II 2002).
FLRA, quite obviously, is not an organizational unit of DHS.
 47

Consequently, the “notwithstanding” clause is not relevant. The
“notwithstanding” clause does nothing more than establish
DHS’s freedom to design its own internal human resources
scheme. It does not serve as a license for DHS to draft an
independent agency to do its bidding pursuant to terms
prescribed by the Department.
The Department’s second defense of its intrusion into
FLRA’s internal operations is similarly farfetched. Citing the
enumeration of certain non-waivable provisions of law, DHS
urges us to draw a sweeping negative implication, claiming
authority to “modify” any unenumerated legal provision. We
refuse to negatively infer, from a restriction of authority, a broad
grant of power that would authorize DHS to prescribe
procedures for independent agencies. See Ry. Labor Executives’
Ass’n v. Nat’l Mediation Bd., 29 F.3d 655, 671 (D.C. Cir. 1994)
(en banc) (“Were courts to presume a delegation of power absent
an express withholding of such power, agencies would enjoy
virtually limitless hegemony, a result plainly out of keeping with
Chevron and quite likely with the Constitution as well.”).
Extended to its logical limit, the Government’s interpretation of
the statute would allow the Department to overtake any agency
to achieve its own ends – indeed, it could even claim to revise
the standards of review in federal courts. Such a sweeping grant
of authority exists nowhere in the HSA.
F. The Role of MSPB
Two issues related to the role of MSPB under the HR system
are before us on appeal. As we explained above, DHS appeals
the District Court’s determination that MSPB’s standard of
review in penalty mitigation cases violates HSA’s command to
provide “fair” appellate procedures; we reversed that holding,
finding the Unions’ claim unripe for review. Additionally, the
Unions cross-appeal the District Court’s determination that DHS
was entitled to Chevron deference in assigning MSPB an
 48

appellate role in mandatory removal cases. We affirm the
District Court on this point.
The Act explicitly contemplates that, under certain
conditions, the HR system will effectively “modify procedures
under chapter 77 [5 U.S.C. §§ 7701-7703 (2000)],” which is the
statutory framework governing MSPB’s appellate procedures.
5 U.S.C. § 9701(f)(2)(C) (Supp. II 2002). Unlike its intrusion
into FLRA’s domain, then, the Department’s modification of
MSPB’s procedures has a clear statutory predicate. It is also
noteworthy that Congress directed DHS and OPM to consult
with MSPB in crafting appellate procedures.
Moreover, the statute delineating MSPB’s powers and
functions authorizes it to:
hear, adjudicate, or provide for the hearing or adjudication,
of all matters within the jurisdiction of the Board under this
title, chapter 43 of title 38, or any other law, rule, or
regulation, and, subject to otherwise applicable provisions
of law, take final action on any such matter.
5 U.S.C. § 1204(a)(1) (2000) (emphasis added). Congress thus
clearly intended MSPB to serve a broad function that may be
defined in diverse ways. Given MSPB’s broad statutory
underpinning, we find no error in the District Court’s judgment
upholding DHS’s action.
G. The Scope of the Injunction
Because we have substantially upheld the District Court’s
judgments regarding the legality of the Final Rule, we must
address DHS’s contention that the District Court’s injunction
sweeps too broadly. DHS contends in particular that it was
improper to enjoin Subpart E in its entirety. The Government’s
argument is mostly pointless, however, because our decision here
invalidates a broader portion of Subpart E than did the District
Court. Curing the problems we have identified will require not
 49

only making collective bargaining mutually binding and
respecting FLRA’s independent authority, but also adjusting the
scope of bargaining. The injunction the Government proposed
to the District Court did not anticipate our holding, and the
Government’s appellate brief supplies no insight into how
Subpart E might be revised to address the concerns raised by our
decision.
Even if the Government had anticipated our holdings and
attempted to address them, we still would have been disinclined
to pursue a dissection of the Final Rule. “Severance and
affirmance of a portion of an administrative regulation is
improper if there is ‘substantial doubt’ that the agency would
have adopted the severed portion on its own.” Davis County
Solid Waste Mgmt. v. EPA, 108 F.3d 1454, 1459 (D.C. Cir. 1997)
(quoting North Carolina v. FERC, 730 F.2d 790, 795-96 (D.C.
Cir. 1984). Moreover, we are obliged to respect “the
fundamental principle that agency policy is to be made, in the
first instance, by the agency itself – not by courts, and not by
agency counsel.” Harmon v. Thornburgh, 878 F.2d 484, 494
(D.C. Cir. 1989). Accordingly, courts generally “do not attempt,
even with the assistance of agency counsel, to fashion a valid
regulation from the remnants of the old rule.” Id. We will leave
these matters to be addressed by the parties and the District
Court on remand of this case.
III. CONCLUSION
The allowance of unilateral contract abrogation and the
limited scope of bargaining under DHS’s Final Rule plainly
violate the statutory command in the HSA that the Department
“ensure” collective bargaining for its employees. We therefore
vacate any provisions of the Final Rule that betray this
command. DHS’s attempt to co-opt FLRA’s administrative
machinery constitutes an exercise of power far outside the
Department’s statutory authority. We therefore affirm the
District Court’s decision to vacate the provisions of the Final
 50

Rule that encroach on the Authority. We reverse the District
Court’s holding that MSPB’s standard of review in penalty
modification cases represents a failure to provide “fair” appellate
procedures, because that issue is not yet ripe for review. And we
express no view on the role of the HSLRB, because the matter
cannot be addressed until DHS revises the Final Rule. Finally,
we decline to amend the injunction.
The judgments of the District Court are affirmed in part and
reversed in part, and the case is hereby remanded for further
proceedings consistent with this opinion.
So ordered.