Am. Fed'n of Gov't Emps. v. Trump

Decision Date16 July 2019
Docket NumberNo. 18-5289,18-5289
Citation929 F.3d 748
Parties AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO, et al., Appellees v. Donald J. TRUMP, in His Official Capacity as President of the United States, et al., Appellants
CourtU.S. Court of Appeals — District of Columbia Circuit

929 F.3d 748

AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO, et al., Appellees
v.
Donald J. TRUMP, in His Official Capacity as President of the United States, et al., Appellants

No. 18-5289

United States Court of Appeals, District of Columbia Circuit.

Argued April 4, 2019
Decided July 16, 2019


Joseph F. Busa, Attorney, U.S. Department of Justice, argued the cause for appellants. With him on the briefs were Hashim M. Mooppan, Deputy Assistant Attorney General, and Mark B. Stern, Attorney, U.S. Department of Justice. Sarah Carroll, Attorney, U.S. Department of Justice, entered an appearance.

Andres M. Grajales and Gregory O’Duden, Washington, DC, argued the causes for appellees. With them on the joint brief were David A. Borer, Washington, DC, Matthew W. Milledge, Larry J. Adkins, Washington, DC, Julie M. Wilson, Paras N. Shah, Allison C. Giles, Washington, DC, Jessica Horne, Judith E. Rivlin, Teague P. Paterson, Syracuse, NY, Michael L. Artz, Washington, DC, Jefferson D. Friday, David Strom, Washington, DC, and Suzanne Summerlin, Washington, DC. Keith R. Bolek, Washington, DC, and Richard J. Hirn, Washington, DC, entered appearances.

Victoria L. Bor, Washington, DC, Jonathan D. Newman, Washington, DC, Harold C. Becker, Los Angeles, CA, Matthew J. Ginsburg, Andover, MA, Brian A. Powers, Washington, DC, Micah Berul, and Anthony Tucci, Staten Island, NY, were on the brief for amici curiae American Federation of Labor and Congress of Industrial Unions, et al. in support of appellees. James B. Coppess, Washington, DC, entered an appearance.

Mark Gisler and Jean-Marc Favreau, Washington, DC, were on the brief for amicus curiae Thomas Wolf, Governor of Pennsylvania, in support of appellees. Michael J. Gan, Washington, DC, entered an appearance.

Adina H. Rosenbaum, Washington, DC, and Adam R. Pulver, New York, NY, were on the brief for amici curiae Representative Elijah Cummings, et al. in support of appellees.

Before: Griffith and Srinivasan, Circuit Judges, and Randolph, Senior Circuit Judge.

Griffith, Circuit Judge:

929 F.3d 752

In May 2018, the President issued three executive orders regarding relations between the federal government and its employees. Unions representing federal employees brought suit in the district court challenging various aspects of the orders. The district court concluded that certain provisions in the orders were unlawful and enjoined the President’s subordinates in the executive branch from implementing them. We hold that the district court lacked jurisdiction and vacate its judgment.

I

A

In the 1960s, Presidents used executive orders to grant federal employees "limited rights to engage in concerted activity" through unions. ATF v. FLRA , 464 U.S. 89, 91-92, 104 S.Ct. 439, 78 L.Ed.2d 195 (1983) ; see Exec. Order No. 10,988, Employee-Management Cooperation in the Federal Service , 27 Fed. Reg. 551 (Jan. 17, 1962) ; Exec. Order No. 11,491, Labor-Management Relations in the Federal Service , 34 Fed. Reg. 17,605 (Oct. 29, 1969). In 1978, Congress enacted the Federal Service Labor-Management Relations Statute (the "Statute" or FSLMRS) to govern labor relations between the executive branch and its employees. The Statute is set forth in Title VII of the Civil Service Reform Act (CSRA), Pub. L. No. 95-454, § 701, 92 Stat. 1111, 1191-1216 (1978) (codified at 5 U.S.C. §§ 7101 - 35 ).

The Statute grants federal employees the right to organize and bargain collectively, and it requires that unions and federal agencies negotiate in good faith over certain matters. See 5 U.S.C. §§ 7102(2), 7103(a)(14), 7106, 7114, 7117(a)(1) ; ATF , 464 U.S. at 91-92, 104 S.Ct. 439. But except as "expressly provided," the Statute does not limit "any function of, or authority available to, the President which the President had immediately before [its] effective date." Pub. L. No. 95-454, § 904, 92 Stat. at 1224 (codified at 5 U.S.C. § 1101 note).

The Statute also establishes a scheme of administrative and judicial review. Administrative review is provided by the Federal Labor Relations Authority (FLRA), a three-member agency charged with adjudicating federal labor disputes, including "negotiability" disputes and "unfair labor practice" disputes. See 5 U.S.C. § 7105(a). In negotiability disputes, the FLRA determines whether agencies and unions must bargain over certain subjects. Id. §§ 7105(a)(2)(E), 7117(c)(1). In unfair labor practice proceedings, the FLRA resolves whether an agency must bargain over a subject, violated the duty to bargain in good faith, or otherwise failed to comply with the Statute. Id. §§ 7105(a)(2)(G), 7116(a), 7118. The FLRA’s decisions in such disputes are subject to direct review in the courts of appeals. Id. § 7123(a), (c).

929 F.3d 753

B

In May 2018, the President issued three executive orders regarding federal labor-management relations. Among other requirements, the "Collective Bargaining Order" provides agencies with certain procedures that they should seek to institute during negotiations with unions. See Exec. Order No. 13,836, Developing Efficient, Effective, and Cost-Reducing Approaches to Federal Sector Collective Bargaining , 83 Fed. Reg. 25,329, 25,331 -32 (May 25, 2018). This order also tells agencies not to negotiate over "permissive" subjects, id. at 25,332, defined as those that are negotiable "at the election of the agency" under 5 U.S.C. § 7106(b)(1).

The "Official Time Order" instructs agencies to aim to limit the extent to which collective bargaining agreements authorize "official time," meaning time spent by employees on union business during working hours. See Exec. Order No. 13,837, Ensuring Transparency, Accountability, and Efficiency in Taxpayer-Funded Union Time Use , 83 Fed. Reg. 25,335, 25,336 (May 25, 2018). This order also establishes rules that limit whether "agency time and resources" may be used by employees on non-government business. Id. at 25,337 (capitalization omitted).

The "Removal Procedures Order" tells agencies to seek to exclude from grievance proceedings any dispute over a decision to remove an employee "for misconduct or unacceptable performance." Exec. Order No. 13,839, Promoting Accountability and Streamlining Removal Procedures Consistent With Merit System Principles , 83 Fed. Reg. 25,343, 25,344 (May 25, 2018). Subject to various exceptions, this order also prohibits agencies from resolving disputes over employee ratings and incentive pay through grievance or arbitration proceedings, and it mandates that some subpar employees may have no more than thirty days to improve their performance before being reassigned, demoted, or fired. Id. at 25,344 -45.

Although numerous, the various challenged provisions of the executive orders fall into three categories: provisions that (1) direct agencies to refuse to bargain over "permissive" subjects based on 5 U.S.C. § 7106(b)(1) ; (2) establish government-wide rules for employee and agency conduct, which may have the effect of removing mandatory subjects from bargaining based on 5 U.S.C. § 7117(a)(1) ; and (3) set goals that agencies must pursue during bargaining. The executive orders enforce these goals by directing agencies to "commit the time and resources necessary" to achieve them and by requiring agencies to notify the President through the Office of Personnel Management (OPM) if the goals are not met. 83 Fed. Reg. at 25,331 -32, 25,336, 25,344. The orders also require agencies "to fulfill their obligation to bargain in good faith" throughout their dealings with unions. Id. at 25,331, 25,336 ; see also id. at 25,344.

C

The American Federation of Government Employees (AFGE) and sixteen other federal labor unions immediately challenged the executive orders in four separate suits against the President, OPM, and the Director of OPM. AFGE v. Trump , 318 F. Supp. 3d 370, 391 (D.D.C. 2018). The suits were consolidated before the district court in June 2018. Id. at 392. As explained by the district court, the unions asserted four types of claims: (1) The executive orders are unlawful because the President has no authority "at all" to issue executive orders in the field of federal labor relations; (2) The executive orders violate the Constitution, specifically the Take Care Clause and the First Amendment right to freedom of association;

929 F.3d 754

(3) The executive orders and their various provisions violate particular requirements of the Statute; and (4) The executive orders’ "cumulative impact" violates the right to bargain collectively as guaranteed by the Statute. Id. at 391-92.

Some of the unions moved for preliminary injunctions, but all parties ultimately agreed to the district court’s proposal that the dispute be resolved on cross-motions for summary judgment, litigated on an expedited briefing schedule.

The district court issued its decision in late August 2018. The court first held that it had subject matter jurisdiction, rejecting the government’s argument that jurisdiction belonged exclusively to the FLRA and (on direct review from the FLRA) the courts of appeals. Id. at 395-409. On the merits, the district court ruled that the President has constitutional and statutory authority to issue executive orders in the field of federal labor relations generally, but nine...

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