The opinion of the court was delivered by: Rosemary M. Collyer United States District Judge
By Memorandum Opinion and Order issued August 12, 2005, this Court enjoined the Department of Homeland Security ("DHS") and the Office of Personnel Management ("OPM") ("Agencies") from implementing Subpart E and § 9701.706(k)(6) of Subpart G of the Department of Homeland Security Human Resources Management System, 5 C.F.R. § 9701 et seq. ("Regulations"). Nat'l Treasury Employees Union v. Chertoff, No. 05-201 (D.D.C. Aug. 12, 2005) ("Mem. Op."). The Regulations would establish a separate human resources management system ("HR System") at DHS. Pursuant to the Court's invitation,*fn1 the Agencies have submitted a motion to alter or amend the judgment of the Court under Federal Rule of Civil Procedure 59(e). They ask the Court to limit its injunction to five discrete subsections of Subpart E.*fn2 The National Treasury Employees Union, American Federation of Government Employees, National Federation of Federal Employees, National Association of Agriculture Employees, and Metal Trades Department of the AFL-CIO ("Unions") oppose the Agencies' motion.
The Court cannot oblige. After thorough consideration of the Agencies' proposed order, the Court concludes that the proposal is insufficient to comport with the Memorandum Opinion. As a result, the motion must be denied.*fn3
Federal Rule of Civil Procedure 59(e) permits a party to file a motion to alter or amend a judgment no later than ten days after the entry thereof. Fed. R. Civ. P. 59(e). A motion to alter or amend a judgment pursuant to Rule 59(e) is not, however, "simply an opportunity to reargue facts and theories upon which a court has already ruled." New York v. United States, 880 F. Supp. 37, 38 (D.D.C. 1995) (three-judge panel) (per curiam). Nor is it an avenue for a "losing party . . . to raise new issues that could have been raised previously." Kattan v. District of Columbia, 995 F.2d 274, 276 (D.C. Cir. 1993). "A Rule 59(e) motion is discretionary and need not be granted unless the district court finds that there is an intervening change of controlling law, the availability of new evidence, or the need to correct a clear error or prevent manifest injustice." Fox v. Am. Airlines Inc., 389 F.3d 1291, 1294 (D.C. Cir. 2004) (quoting Firestone v. Firestone, 76 F.3d 1205, 1208 (D.C. Cir. 1996) (per curiam)).
"Whether the offending portion of a regulation is severable depends upon the intent of the agency and upon whether the remainder of the regulation could function sensibly without the stricken provision." MD/DC/DE Broadcasters Ass'n v. FCC ("MD/DC/DE Broadcasters I"), 236 F.3d 13, 22 (D.C. Cir.) (citing K-Mart Corp. v. Cartier, Inc., 486 U.S. 281, 294 (1988)), reh'g denied, MD/DC/DE Broadcasters Ass'n v. FCC ("MD/DC/DE Broadcasters II"), 253 F.3d 732 (D.C. Cir. 2001). In evaluating agency intent, "[s]everance 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) (per curiam) (citing North Carolina v. FERC, 730 F.2d 790, 795-96 (D.C. Cir. 1984), and Bell Atl. Tel. Cos. v. FCC, 24 F.3d 1441, 1447 (D.C. Cir. 1994)). In evaluating whether the remainder of the regulation could function sensibly, the D.C. Circuit considers, for example, whether severance would "impair the function" of the remaining regulations, Davis County, 108 F.3d at 1460, or "sensibly serve the goals for which [the regulation] was designed." MD/DC/DE Broadcasters II, 253 F.3d at 734.
This Court's initial opinion rested on three grounds. First, it found that the Regulations fail to "ensure that employees may . . . bargain collectively" as required by the Homeland Security Act ("HSA") because "[t]he HR System does not lead to enforceable contracts" and "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." Mem. Op. at 35; see 5 U.S.C. § 9701(b)(4). Second, it found that the Regulations improperly assigned an intermediate role of administrative appellate review to the Federal Labor Relations Authority ("FLRA") to determine DHS compliance with the Regulations. Mem. Op. at 43-46. Third, it concluded that the Regulations are not "fair" as required by the HSA, due to a new standard limiting the authority of the Merit Systems Protection Board to mitigate penalties. Mem. Op. at 47-52; see 5 U.S.C. § 9701(f)(1)(A). The Agencies' motion seeks to amend the Court's order only as it relates to the first two grounds, which the Court addresses in turn.
The Agencies suggest that Regulations' failure to ensure collective bargaining can be remedied by an injunction limited to those provisions of 5 C.F.R. § 9701.506(a)*fn4 and 5 C.F.R. § 9701.515(d)(5)*fn5 that would authorize DHS to invalidate terms of a collective bargaining agreement based upon "implementing directives" or "other policies and regulations" issued after the collective bargaining agreement had become effective. They propose this limitation in an effort to cure the problem that the Regulations, as currently drafted, would allow DHS to void contract terms to which it had already agreed.
1. Adequacy of the Agencies' Proposal
The Agencies' proposal falls short because it leaves open other avenues whereby DHS could unilaterally and without recourse disavow lawful contracts. Prime among these is the last clause of the Management Rights provision at 5 C.F.R. § 9701.511(a)(2), which authorizes DHS managers "to take whatever other actions may be necessary to carry out the Department's mission." The Regulations prohibit bargaining over any decision made under § 9701.511(a)(2), as well as over the procedures management will observe in exercising this authority. 5 C.F.R. § 9701.511(b). The Regulations contain no limitation that would require management to respect the terms of pre-existing collective bargaining agreements in the exercise of this broad authority, and the Agencies offer none. See Reply Memorandum in Support of Defendants' Motion to Alter or Amend Judgment ("Defs.' Reply") at 5 ("The effect of these limitations is to grant to management the unilateral right: (1) to take each action encompassed within the management rights regulation without any prior negotiations with the union and (2) to render the matters covered within the regulation nonnegotiable.").
In its Memorandum Opinion, the Court identified 5 C.F.R. § 9701.511(a)(2) as one of the Regulations' troublesome provisions that would authorize DHS to invalidate lawful collective bargaining agreements, although the Agencies' proposed amendment to the Court's Order does not speak to it:
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 the Unions or employees and without bargaining or recourse. Under the Regulations, DHS would have the power to take any matter off the bargaining table simply by issuing department-wide directives, policies, or other regulations. HSLRB could issue binding Department-wide opinions without regard to the terms of collectively bargained agreements. See [5 C.F.R.] § 9701.509(b). DHS managers have also reserved the right to "take whatever other actions may be necessary to carry out the Department's mission," see id. § 9701.511(a)(2), without bargaining or prior notice, irrespective of the terms of collective bargaining agreements. These unilateral actions could be appealed to the HSLRB but "[p]rovisions that are identified by the Department as ...