UNITED STATES DISTRICT COURT

AMERICAN POSTAL WORKERS	)
UNION, AFL-CIO,	)
	)
Plaintiff,	)
	)
v.	)	Civil Action No. 03-1908
	)
UNITED STATES POSTAL SERVICE,	)
	)
Defendant.	)

UNITED STATES DISTRICT COURT
DISTRICT OF COLUMBIA

RESPONDENT’S CONSENT MOTION FOR ENLARGEMENT
OF TIME TO FILE OPPOSITION/REPLY BRIEF

Respondent United States Postal Service, by and through its attorneys, hereby moves the Court for an enlargement of time within which to file its opposition to petitioner’s Partial Motion for Summary Judgment and reply to petitioner’s opposition to respondent’s Motion to Dismiss. Good cause exists to grant this motion:

1. Respondent’s opposition/reply memorandum is presently due December 12, 2003.

2. The principals in this matter have been actively engaged in trying to resolve the issues presented in this matter without further judicial involvement. These discussions are ongoing, and are expected to continue past the December 12 opposition/reply date.

3. Given the possibility that some or all of the issues in this case may be resolved through these discussions, respondent and petitioner (see ¶ 6) respectfully submit that further briefing should be briefly stayed, both to conserve the resources of the parties and the Court, and because briefing during settlement may adversely affect the parties’ ability to reach a compromise.

4. Therefore, respondent respectfully requests that the Court extend the time within which
it must file its opposition/reply memorandum through and including January 2, 2004. This should give the parties adequate time to either resolve this matter in whole or in part, or determine that a non-judicial resolution is not possible.

4. Granting this motion will not require the rescheduling of any pre-trial or trial dates or any in court matters.

5. This is the second enlargement of time sought by respondent for this deadline.

6. Pursuant to LCvR 7.1(m), counsel for respondent contacted counsel for petitioner with respect to the relief requested, and counsel for petitioner has graciously given his consent to the relief requested.

7. Respondent is cognizant of this Court’s standing order that motions to extend time be filed four days in advance of the deadline sought to be extended. In this instance, counsel wanted to be reasonably certain that settlement discussions were sufficiently fruitful so as to justify alteration of the briefing schedule. Further, undersigned counsel only heard from plaintiff’s counsel this day with respect to his agreement on the revised date for the opposition.

Respectfully submitted,

_____________ /s/________________

ROSCOE C. HOWARD, JR. D.C. BAR # 246460 United States Attorney

_____________ /s/

MARK E. NAGLE, D.C. BAR # 416364 Assistant United States Attorney

_____________ /s/________________

PETER D. BLUMBERG D.C. BAR # 463247 Assistant United States Attorney Judiciary Center Bldg.

555 Fourth Street, N.W., Tenth Fl. Washington, D.C. 20530 (202) 514-7157

Attorneys for Respondent

Date: December 12, 2003

November 20, 2003

Mr. Greg Bell

Director, Industrial Relations

American Postal Workers Union, AFL-CIO 1300 L Street, NW

Washington, DC 20005-4128

Dear Mr. Bell:

This is in response to your September 25 letter to Mr. Vegliante, in which the APWU invoked the parties' Administrative Dispute Resolution Procedures to address additional questions associated with the voluntary early retirement (VER) program. We met on October 21 to discuss this issue. The following represents the Postal Service's response to the contentions of the APWU.

The APWU raised two issues. The first was that, in requesting an extension of VER authority through December 31, 2004, the Postal Service had apparently narrowed its request to OPM, from "all APWU-represented employees" to a smaller category. This contention is based on OPM's September 9 letter, which approves VER for certain categories of employees, rather than "all APWU represented employees".

The second issue is that within those categories of employees, the Postal Service is "refusing to offer voluntary early retirement to all eligible clerk craft employees, motor vehicle craft employees in levels 5 and below, and maintenance craft employees in levels 5 and below, with the exception of technical maintenance positions for which there is a continuing need."

In response to the first issue, it is the Postal Service's position that our request to OPM to extend VER authority through December 31, 2004 was the same as the January 23, 2003 request for such authority. The Postal Service did not narrow the request, as asserted by the APWU.

In response to the second issue, the Postal Service denies that it is refusing to offer voluntary early retirement to APWU employees covered by the National Agreement who meet the applicable statutory and regulatory standards. OPM authorized the Postal Service to use voluntary early retirements under Chapters 83 and 84 of Title 5 U. S. C. The Postal Service can only authorize VERs that are consistent with the authority granted by OPM. The crux of the Union's argument is that the Postal Service must authorize early retirement for employees where circumstances place them outside the scope of the statute and OPM's grant of authority. Furthermore, the Union cannot arbitrate the statutory standards and OPM's regulatory authority for determining eligibility for voluntary early retirement.

Moreover, in regards to the APWU's contention that all APWU-represented employees

must be offered this VER opportunity, the Postal Service position remains as stated in

my September 4 response to the APWU's contentions in Case No.

Q00C-4Q-C 03209254, the first dispute filed under the Administrative Dispute Resolution

Procedures regarding VERA.

Sincerely,

Patricia Heath
Labor Relations Specialist
Contract Administration

Excerpts of FOURTH DECLARATION OF APWU Human Relations Director,GREG BELL

On September 25, 2003, I initiated a second dispute concerning the Postal Service’s Voluntary Early Retirement (VER) program, following the procedures of the Alternative Dispute Resolution Procedure agreed to by the American Postal Workers Union, AFL-CIO (APWU) and the United States Postal Service. A copy of my letter initiating that dispute is Exhibit 4 to my Second Declaration in this case.

4. On October 21, 2003, I met with the Postal Service to discuss this second dispute concerning the VER program. I attended that meeting on behalf of the APWU. At that meeting, the parties failed to reach agreement, and I declared an impasse on behalf of the APWU.

5. On November 20, 2003, the parties exchanged position statements concerning this second dispute concerning the VER program. APWU’s position paper is attached to this Declaration as Exhibit 1. The Postal Service’s position paper is attached to this Declaration as Exhibit 2.

6. Both of the parties’ disputes concerning the VER program have now been processed through the parties’ Alternative Dispute Resolution Procedure to the point where all that remains to be done is the scheduling of the disputes for arbitration.

7. I am aware that the Postal Service has asserted that it has excluded many clerks, and all maintenance and motor vehicle employees above level 5 from the VER program because the Postal Service contends that they occupy positions that are necessary to the mission of the Postal Service and they cannot be replaced by a qualified employee in a surplus or excess position. This assertion is incorrect and misleading. Under the parties’ collective bargaining agreements, there are well-established procedures for filling vacant positions the Postal Service determines are necessary to the mission of the Postal Service. It is commonplace for the Postal Service to fill through reassignment (voluntary or involuntary) necessary positions that become vacant with existing qualified employees in positions (surplus) no longer needed. Reassignment occurs from within the affected areas, from other areas, both inside and outside the facility where the necessary positions are located, in order to fill the positions. The collective bargaining agreements also permit the Postal Service to transfer employees from other areas, both inside and outside the facility where the necessary position is located in order to fill positions. Under the terms of the parties’ collective bargaining agreements, the current reassignment and transferring procedures would permit the Postal Service to fill positions vacated by people taking VER by existing qualified employees.

I declare under penalty of perjury that the foregoing is true and correct.

Executed on November 21, 2003.

Update #24-03

Nov. 7, 2003

Interim Decision Received, Further Court Action Expected by Early 2004

In a preliminary decision, U.S. District Court Judge Reggie B. Walton denied the APWU’s motion to compel the Postal Service to immediately arbitrate our grievances over the Voluntary Early Retirement (VER) program. Still pending before the court is the APWU’s request that the court order the Postal Service to submit the parties’ dispute over VERA to arbitration.

“So that employees who are entitled to take early retirement are afforded this option before the VERA closing date,” Walton wrote, “the Court will endeavor to decide the defendant’s motion to dismiss by January 2, 2004.” The Postal Service has taken the position that the dispute is not subject to arbitration.

In reaching its conclusion, the court relied on the fact that the Postal Service’s VER authority extends until Dec. 31, 2004, and that employees’ rights would not be impaired until that authority expires. (When the union filed its petition to compel arbitration, the Postal Service’s authority to grant voluntary early retirement was set to expire Sept. 30.)

Walton’s decision postpones for two months the question of whether the court will compel arbitration of our dispute with the Postal Service over the VER program. The judge wrote that if he ultimately orders arbitration of the dispute, he will reconsider the union’s request to order expedited arbitration.

In response to the APWU’s complaint that members are being denied the right to take VER and need immediate relief, the court concluded:

“Although the plaintiff’s concern may be legitimate, there is nothing in the record that supports its claim that immediate intervention by the Court is compelled to protect its members from irreparable harm. As the Court already stated, the Postal Service has VER authority for approximately another 14 months. And the plaintiff has failed to establish that its members would suffer irreparable harm by not being permitted to exercise the early retirement option immediately.

“While an individual may suffer irreparable harm if he or she is precluded from ever being able to exercise the option to retire early pursuant to a VER, there is absolutely nothing in the record which establishes that this will occur without immediate judicial intervention or that one of APWU’s members is actually suffering such harm now as a result of not being able to exercise the option immediately.”

The APWU argued that any further delay in ordering arbitration might mean that arbitration could not be concluded in time to provide access to VER by Dec. 31, 2004. The court held that this contention was “grounded principally upon speculation regarding how long it will take to have this dispute arbitrated if the Court fails to order expedited arbitration.”

Finally, because he hopes to decide the merits of the case by Jan. 2, 2004, the judge ordered the APWU to submit its brief on the merits of the underlying suit to compel arbitration no later than Nov. 21, 2003, and ordered the Postal Service to file its reply by Dec. 5, 2003.

Bill Burrus

President

Below is the web version of the PDF file from the US DC District Court

UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

)

AMERICAN POSTAL WORKERS

   )

UNION, AFL-CIO,

   )

)

Plaintiff,

   )

   )

v.

)

Civil Action No. 03-1908

)

UNITED STATES POSTAL SERVICE,

)

)

Defendant.

)

___________________________________)

ORDER

This matter came before the Court on October 23, 2003, for a hearing on the plaintiff's Motion for Preliminary Injunction. The plaintiff, the American Postal Workers Union ("APWU"), is an unincorporated labor organization that represents approximately 309,000 employees of the United States Postal Service ("USPS" or the "Postal Service"). Complaint ("Compl.") ¶ 6. During the fall of 2002, representatives of the APWU and the Postal Service negotiated an extension of a collective bargaining agreement that covered approximately 307,000 "maintenance employees, motor vehicle service employees, clerks, mail equipment shop employees, and material distribution center employees." Defendant's Consolidated Motion to Dismiss and Opposition to Plaintiff's Petition to Compel Arbitration and Motion for Preliminary Injunction ("Def.'s Opp'n") at 5; Compl. ¶ 9. As part of their agreement, the parties entered into a December 19, 2002, Memorandum of Understanding on Excessing ("MOU"), in which they "agreed that the Postal Service [would] petition the Office of Personnel Management (OPM) for the purpose of implementing Section 8336(d)(2) (voluntary early retirement – CSRS) and Section 8414(b)(1)(B) (voluntary early retirement – FERS) of Title 5, United States Code for all eligible APWU represented employees, subject to the limitations imposed by OPM." Petitioner's Motion for Preliminary Injunction and Request for Hearing Within 20 Days ("Pl.'s Mot."), Exhibit ("Ex.") 3. The MOU further stated that "[a]ny disputes arising out of this memorandum will be handled in accordance with the Memorandum of Understanding Re: Administrative Disputes Resolution Procedures." Id. On January 23, 2003, the Postal Service petitioned the OPM to offer voluntary early retirement ("VER") to postal employees represented by the APWU under the parties' collective bargaining agreement. Compl. ¶ 17. The Postal Service's correspondence indicated, in relevant part, that

[t]his is to request approval from the Office of Personnel Management for Voluntary Early Retirement Authority (VERA) for Postal Service employees represented by the American Postal Workers Union (APWU) that are covered by either the Civil Service Retirement System [("CSRS")] or Federal Employees Retirement System [("FERS")] . . . . To meet our mission, we have reviewed our complement needs and have determined we have surplus positions. Therefore, we are seeking Voluntary Early Retirement (VER) as a tool to aid us in reducing our complement.

Pl.'s Mot., Ex. 8. On June 13, 2003, the OPM responded to the Postal Service's request and "authorize[d] the use of voluntary early retirements under sections 8336(d)(2) and 8414(b)(1) of title 5, United States Code (U.S.C.), and sections 831.114 and 842.213 of title 5, Code of Federal Regulations (CFR)." Id., Ex. 9. This authorization also provided:

As you have requested, this authority does not cover all employees of USPS.

The following are excluded:

(1) Any employees who have not been continuously on the agency's rolls since at least 31 days before the date of your request, January 23, 2003;

(2) Any USPS employees who are not represented by the American Postal Workers Union;

(3) Employees serving under time-limited appointments; and 3

(4) Employees in receipt of a decision of involuntary separation for misconduct or unsatisfactory performance.

USPS may offer voluntary early retirements to its eligible employees from the date of approval through September 30, 2003, subject to the provisions, limitations, and instructions outlined in this letter and sections 831.114 and 842.213 of 5 CFR.

Id. In addition, the OPM letter stated that the Postal Service "may determine the coverage of offers to eligible employees under this authority based on any combination of organizational components, geographic areas, occupational series or levels, or other nonpersonal and objective factors. These offers may be established on your own initiative." Id.

The dispute that led to the filing of this case commenced when the Postal Service interpreted the OPM letter to mean that only APWU employees that met the qualifications of 5 U.S.C. § 8336(d)(2) and 5 U.S.C. § 8414(b)(1)(B) were eligible for VER. Def.'s Opp'n at 7.

This interpretation conflicted with the APWU's interpretation of the letter and the APWU's view of the Postal Service's obligation under the MOU. Compl. ¶ 28. On July 28, 2003, the APWU invoked the administrative dispute resolution process referenced in the MOU. Id. On August 5, 2003, the parties' representatives met to discuss this dispute. Id. ¶ 29. On August 6, 2003, the Postal Service petitioned the OPM for an extension until December 31, 2004, to offer VERs to "career U.S. Postal Service employees represented by the [APWU] that are covered by the Civil Service Retirement System or Federal Employees Retirement System[,]" because the Postal Service's authority to offer VERs was scheduled to expire on September 30, 2003. Defendant's Notice of Filing of Attachments to Declarations ("Def.'s Not. of Attachm."), Ex. 3 (August 6, 2003 Postal Service Letter to OPM). The Postal Service explained that [t]o meet our mission, we have reviewed our complement needs and have determined we have surplus positions. . . . The extension of this VERA will assist us in reducing a portion of these excess positions, by minimizing the impact of those career employees potentially subject to involuntary reassignments under the various articles of their collective bargaining agreement.

Id. On August 12, 2003, representatives of the Postal Service, the OPM, and the APWU convened a meeting to discuss this disupte. Def.'s Mot., Ex. C (Declaration of Kevin Mahoney) ¶ 6. At this meeting, OPM representatives advised the attendees . . . [that] as a general matter, an agency in receipt of VERA may determine the coverage of offers to eligible employees based on any combination of organizational components, geographic areas, occupational series or levels, or other nonpersonal and objective factors. Further, OPM representatives indicated that it is not appropriate to offer voluntary early retirement to an employee occupying a position that remains necessary to the performance of the mission of the Postal Service unless such position could be filled by a qualified employee in a surplus or excess position.

Id. Upon reviewing the Postal Service's August 6, 2003 extension request, the "OPM determined to recast the extension of its VERA approval by making specific reference to the authorized occupational series and levels in order to ensure consistency with the applicable statutory and regulatory criteria." Id. ¶ 7. Apparently after consulting with the Postal Service regarding which categories of the APWU-represented employees would fall under the VER authority,1 the OPM issued a September 9, 2003 letter extending the Postal Service's VER authority through December 31, 2004. Def.'s Not. of Attachm., Ex. 4. The letter also stated that "[t]his authority applies to U.S. Postal Service employees within the following occupational series and levels: clerk craft employees; motor vehicle craft employees in levels 5 and below; and maintenance craft employees in levels 5 and below, with the exception of technical maintenance positions for which there is a continuing need." Id. The Postal Service posits that this dispute is not arbitrable because it complied with the MOU by petitioning the OPM for the VER authority and because any dispute the APWU has about the scope of this authority should be directed to the OPM as "Congress vested the Office of Personal Management with the exclusive responsibility to administer all federal retirement programs." Def.'s Mot. at 21 (citing 5 U.S.C. § 1003(5)(B)).

Legal Analysis

Case law clearly establishes that in considering whether to grant a motion for a preliminary injunction, this Court must weigh the following four factors: "(1) whether the plaintiff has a substantial likelihood of success on the merits; (2) whether the plaintiff would suffer irreparable injury were an injunction not granted; (3) whether an injunction would substantially injure other interested parties; and (4) whether the grant of an injunction would further the public interest." Al-Fayed v. CIA, 254 F.3d 300, 303 (D.C. Cir. 2001); Mova Pharmaceutical Corp. v. Shalala, 140 F.3d 1060, 1066 (D.C. Cir. 1998); CityFed Financial Corp. v. Office of Thrift Supervision, 58 F.3d 738, 746 (D.C. Cir. 1995). The Court must balance the moving party's claims in each of these four areas and may issue an injunction if one factor is particularly strong, even though the remaining criteria are weak. CityFed, 58 F.3d at 747 (holding that an injunction may be proper "where there is a particularly strong likelihood of success on the merits even if there is a relatively slight showing of irreparable injury."); Health Ins. Assoc. of Am. v. Novelli, 211 F. Supp. 2d 23, 28 (D.D.C. 2002) (Walton, J.).

However, despite this balancing approach, the District of Columbia Circuit clearly requires that "some injury" must be demonstrated by the moving party. Id. (citing Population Inst. v. McPherson, 797 F.2d 1062, 1078 (D.C. Cir. 1986); Sea Containers Ltd. v. Stena AB, 890 F.2d 1205, 1210-11 (D.C. Cir. 1989) ("upholding district court decision denying request for preliminary injunction where moving party may have been 'likely to succeed' but did not carry burden of showing irreparable harm")). Thus, as a natural consequence of this prerequisite, a failure to establish irreparable harm is alone sufficient reason to deny a motion for a preliminary injunction. Id.; Adair v. England, No. Civ.A. 00-0566, 2002 WL 1791301, at *2 (D.D.C. July 31, 2002). This is because "[t]he basis of injunctive relief in the federal courts has always been irreparable harm." CityFed, 58 F.3d at 747 (quoting Sampson v. Murray, 415 U.S. 61, 88 (1974) (quoting Beacon Theatres, Inc. v. Westover, 359 U.S. 500, 506 (1959))).

In this case, the plaintiff asserts that its members will be irreparably harmed, in that they will forever lose the opportunity to elect voluntary early retirement under the parties' agreement. If these employees are not provided the opportunity to retire and are required to keep working, monetary compensation cannot restore them to the position that they would have been in had they been permitted to retire, nor could they be permitted by [the Postal Service] to take early retirement at a later date, when [the Postal Service's] VER authorization from OPM has expired.

First Amended Petition to Compel Arbitration ¶ 48. The APWU seeks an order from this Court requiring the expedited arbitration of this dispute because [u]nder the formal scheduling procedure used by the parties to schedule arbitration of their disputes, arbitration cases are scheduled to be arbitrated in the order in which they are appealed to arbitration. If that procedure were followed with respect to this dispute, it would be several years before the issues raised by the APWU through the parties [administrative dispute resolution procedures] . . . could be heard in arbitration.

Id. ¶ 49. The APWU further explains that [b]ecause [the Postal Service's] VER authority presently expires on December 31, 2004, and because [the Postal Service] has designated specific window periods within which employees must retire, if the arbitration hearing sought in this case is not expedited, [the Postal Service's] VER authority will expire before the parties' disputes could be arbitrated, and the APWU's right to obtain arbitration of this dispute will be nullified.

Id. ¶ 50. The Postal Service contends that the APWU's "request for expedited arbitration is premature and based on conclusory statements and speculative fears, namely that arbitration under the terms of the National Agreement would not be concluded until after the Postal Service's authority to offer VER expired." Def.'s Opp'n at 27. It also notes that its "authority to offer VERs does not expire until December 31, 2004 . . . [and that] [u]nder the terms of the MOU the employer may offer VER to employees anytime during this period." Id.

This Court concludes that the plaintiff has not established that it will suffer irreparable harm if the Court defers a ruling on its Petition to Compel Arbitration until this petition has been fully briefed by the parties.2 The Court appreciates the urgency of the situation from the plaintiff's perspective. However, while the plaintiff argues that by granting the injunctive relief it is requesting, the Court would merely be enforcing the parties' bargained-for agreement contained in the MOU that this matter be submitted to arbitration, it is also asking the Court to ignore the collective bargaining agreement's requirement that "[a]ll grievances appealed to arbitration will be placed on the appropriate pending arbitration list in the order in which appealed[,]" Pl.'s Mot., Ex. 4 (Collective Bargaining Agreement), by ordering the arbitration process be expedited. This latter objective concerns the Court, but what is most troubling about plaintiff's request for emergency relief is that it is grounded principally upon speculation regarding how long it will take to have this dispute arbitrated if the Court fails to order expedited arbitration. See Adams v. Freedom Forge Corp., 204 F.3d 475 (3d Cir. 2000) (noting that the Third Circuit has "insisted that the risk of irreparable harm must not be speculative" to support a preliminary injunction) (citation omitted); Bristol-Myers Squibb Co. v. Shalala, 923 F. Supp. 212, 221 (D.D.C. 1996) (finding that a preliminary injunction was inappropriate because plaintiff's claim was "supported by mere speculation."). Plaintiff advances this position even though the Postal Service has VER authority through December 31, 2004.

Although the plaintiff's concern may be legitimate, there is nothing in the record that supports its claim that immediate intervention by the Court is compelled to protect its members from suffering irreparable harm. As the Court already stated above, the Postal Service has VER authority for approximately another fourteen months. And, the plaintiff has failed to establish that its members would suffer irreparable harm by not being permitted to exercise the early retirement option immediately. While an individual may suffer irreparable harm if he or she is precluded from ever being able to exercise the option to retire early pursuant to a VER,3 there is absolutely nothing in the record which establishes that this will occur without immediate judicial intervention or that one of the APWU's members is actually suffering such harm now as a result of not being able to exercise the option immediately. Cf. Chalk v. United States Dist. Court Dist. of California, 840 F.2d 701, 709-10 (9th Cir. 1988) (finding that a plaintiff with AIDS satisfied a showing of irreparable injury by being reassigned to another job because of immediate emotional and psychological injury); EEOC v. Chrysler Corp., 733 F.2d 1183, 1186 (6th Cir. 1984) (finding that employees forced to retire suffered irreparable injury by "suffer[ing] from such problems as emotional distress, depression, increased drug use, decrease in feelings of a useful life, a contracted social life, increased cigarette consumption, lassitude, sexual problems, and a reduced sense of well-being."). Having failed to demonstrate the fundamental predicate for injunctive relief in federal courts – irreparable harm – the plaintiff's motion for a preliminary injunction must be denied.

To ensure that the issues raised by the plaintiff in its Petition to Compel Arbitration are addressed expeditiously so that employees who are entitled to take early retirement are afforded this option before the VERA closing date, the Court will endeavor to decide the defendant's motion to dismiss by January 2, 2003. In the event the plaintiff's petition survives the dismissal motion, the Court will then take the necessary steps to quickly resolve the petition on the merits.

At that time, if the plaintiff has prevailed on the merits, the Court will reassess whether injunctive relief is necessary to ensure that the arbitration process is completed in time for eligible APWU-employees to exercise the option of taking early retirement. Accordingly, it is hereby this 7th day of November, 2003

ORDERED that the plaintiff's Motion for Preliminary Injunction is DENIED. It is FURTHER ORDERED that the plaintiff shall file an opposition to the defendant's motion to dismiss by November 21, 2003, and the defendant shall file any reply thereto by December 5, 2003.

SO ORDERED.

REGGIE B. WALTON

United States District Judge

Footnotes

1 The plaintiff has provided the Court with the copy of an August 28, 2003, email from the Postal Service's RIF Compliance Team Leader to the OPM entitled "clarification of occupation groups for APWU VERA[.]" Petitioner's Reply Brief in Support of Motion for Preliminary Injunction, Ex. 7 (August 28, 2003 email from Oswald Barsi to OPM). This email contains the same categories of employees subject to the Postal Service's VER authority as outlined in OPM's September 9, 2003 letter. An OPM representative explained that the OPM based its authorization for the specific groups of employees referenced in its September 9, 2003, letter on information provided by the USPS following an inquiry by OPM staff. This inquiry was the result of OPM's determination that the applicable VE RA statutory and regulatory provisions do not reference union representation as a factor in either approving an agency request for voluntary early retirement or, otherwise, making an offer of voluntary early retirement. Def.'s Mot., Ex. C ¶ 8.

2 While the defendant has filed a motion to dismiss the plaintiff's petition, the plaintiff has not yet filed an opposition to the defendant's motion, nor has the defendant filed a reply thereto.

3 Whether being foreclosed forever from exercising an option to retire early is alone sufficient to establish irreparable harm, as opined by the plaintiff, is not an issue the Court needs to resolve at this time because, as the Court explains above, the Postal Service has VERA until December 31, 2004.

From the Editor