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

Decision Date25 August 2018
Docket NumberNo. 1:18-cv-1261 (KBJ),1:18-cv-1261 (KBJ)
Citation318 F.Supp.3d 370
Parties AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO, Plaintiff, v. Donald J. TRUMP, et al., Defendants. National Federation of Federal Employees, FD-1, IAMAW, AFL-CIO, et al., Plaintiffs, v. Donald J. Trump, et al., Defendants. American Federation of State, County and Municipal Employees, AFL-CIO, et al., Plaintiffs, v. Donald J. Trump, et al., Defendants. National Treasury Employees Union, Plaintiff, v. Donald J. Trump, et al., Defendants.
CourtU.S. District Court — District of Columbia

Andres M. Grajales, Chad E. Harris, Matthew Whitmore Milledge, American Federation of Government Employees, Office of the General Counsel, Gregory J. O'Duden, Allison Conrey Giles, Jessica Horne, Julie M. Wilson, Larry J. Adkins, Paras N. Shah, Office of General Counsel, National Treasury Employees Union, Suzanne Elizabeth Summerlin, National Federation of Federal Employees, Richard J. Hirn, Washington, DC, for Plaintiffs.

Michael Andrew Zee, U.S. Department of Justice, San Francisco, CA, Rachael Lynn Westmoreland, U.S. Department of Justice, Washington, DC, for Defendants.


KETANJI BROWN JACKSON, United States District Judge


C. The Challenged Executive Orders...387
1. Executive Order 13,836 ("The Collective Bargaining Procedures Order")...387
2. Executive Order 13,837 ("The Official Time Order")...388
3. Executive Order 13,839 ("The Removal Procedures Order")...390

The Constitution of the United States divides the powers of the Federal government into three spheres: "[t]o the legislative department has been committed the duty of making laws, to the executive the duty of executing them, and to the judiciary the duty of interpreting and applying them in cases properly brought before the courts." Massachusetts v. Mellon , 262 U.S. 447, 488, 43 S.Ct. 597, 67 L.Ed. 1078 (1923). Because "the accumulation of all powers, legislative, executive, and judiciary, in the same hands ... pose[s] an inherent threat to liberty[,]" each branch of government must stay within its proper domain. Patchak v. Zinke , ––– U.S. ––––, 138 S.Ct. 897, 905, 200 L.Ed.2d 92 (2018) (plurality opinion) (internal quotation marks and citations omitted). When one of the three branches exceeds the scope of either its statutory or constitutional authority, it falls to the federal courts to reestablish the proper division of Federal power. See, e.g., Plaut v. Spendthrift Farm, Inc. , 514 U.S. 211, 218, 115 S.Ct. 1447, 131 L.Ed.2d 328 (1995) (rebuking Congress's intrusion into the judicial sphere); Lujan v. Defs. of Wildlife , 504 U.S. 555, 577, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992) (preventing the Judiciary from intruding into the executive sphere); Youngstown Sheet & Tube Co. v. Sawyer , 343 U.S. 579, 655, 72 S.Ct. 863, 96 L.Ed. 1153 (1952) (halting the President's encroachment upon the legislative sphere). The instant case implicates these fundamental principles, for it relates to the power of the Judiciary to hear cases and controversies that pertain to federal labor-management relations; the power of the President to issue executive orders that regulate the conduct of federal employees in regard to collective bargaining; and the extent to which Congress has made policy choices about federal collective bargaining rights that supersede any presidential pronouncements or priorities.

On May 25, 2018, President Donald J. Trump issued three executive orders relating to the administration of the federal civil service and the rights of federal employees to engage in collective bargaining. See Exec. Order No. 13,836, 83 Fed. Reg. 25329 (May 25, 2018) ; Exec. Order No. 13,837, 83 Fed. Reg. 25335 (May 25, 2018) ; Exec. Order No. 13,839, 83 Fed. Reg. 25343 (May 25, 2018) (collectively, "the Orders"). Among other things, these Orders seek to regulate both the collective bargaining negotiations that federal agencies enter into with public-sector unions and the matters that these parties negotiate. The Orders place limits on the activities that federal employees may engage in when acting as labor representatives; guide agencies toward particular negotiating positions during the collective bargaining process; and address the approaches agencies shall follow when disciplining or evaluating employees working within the civil service.

Between May 30, 2018, and June 18, 2018, numerous federal employee unions ("the Unions" or "Plaintiffs") filed the instant consolidated cases against President Trump, the U.S. Office of Personnel Management ("OPM"), and the Director of OPM (collectively, "Defendants"), challenging the validity of the President's executive orders in various respects.1 The Unions contend that the Orders conflict with the Federal Service Labor-Management Relations Statute ("the FSLMRS"), 5 U.S.C. §§ 7101 – 7135 —and therefore constitute ultra vires and unconstitutional actions on the part of the President—and also that the Orders impinge upon the constitutional rights of federal employees. Several union plaintiffs initially insisted that the Orders amounted to such an egregious violation of presidential power, and worked such an immediate harm to the collective bargaining rights of federal employees, that a preliminary injunction was warranted. (See, e.g. , Pl. AFGE's Mot. for a Prelim. Injunction, ECF No. 10.) However, the parties subsequently agreed to proceed straight to the merits of the Unions' challenges by having this Court resolve the instant dispute on cross-motions for summary judgment, handled in an expedited fashion. (See Scheduling Order, ECF No. 16, at 1.)2

Before this Court at present are Plaintiffs' and Defendants' ripe cross-motions for summary judgment.3 The Court held a lengthy hearing on these motions on July 25, 2018, and since then, it has worked diligently to sort out, and resolve, the myriad complicated and contentious issues that the parties' arguments raise. For example, each of the four motions for summary judgment that the Unions have filed assails various provisions in the Orders (a total of twenty provisions are targeted), and each motion makes different claims regarding the validity of the challenged provisions. By and large, this Court has treated the Unions' four motions as one. Generally speaking, the Unions collectively contend that: (1) the President has no statutory or constitutional authority to issue executive orders pertaining to the field of federal labor relations; (2) the challenged provisions conflict with particular sections of the FSLMRS in a manner that abrogates the Unions' statutory right to bargain collectively; and (3) certain provisions of the Orders transgress Article II's Take Care Clause, and also, in one instance, the First Amendment's right to freedom of association.

For its part, the summary...

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    ...not an exact science," and "courts must ultimately rely on the exercise of practical common sense." Am. Fed'n of Gov't Emp's, AFL-CIO v. Trump, 318 F.Supp.3d 370, 409-10 (D.D.C. 2018) (internal quotation marks and citations omitted), appeal docketed, No. 18-5289 (D.C. Cir. Sept. 26, 2018).T......
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