Nat'l Ass'n of Agric. Emps. v. Trump

• Decision Date: 21 May 2020
• Docket Number: Case No.: GJH-19-3057
• Citation: 462 F.Supp.3d 572
• Parties: NATIONAL ASSOCIATION OF AGRICULTURE EMPLOYEES, Plaintiff, v. Donald J. TRUMP, et al., Defendants.
• Court: U.S. District Court — District of Maryland

462 F.Supp.3d 572

NATIONAL ASSOCIATION OF AGRICULTURE EMPLOYEES, Plaintiff,

v.Donald J. TRUMP, et al., Defendants.

Case No.: GJH-19-3057

United States District Court, D. Maryland, Southern Division.

Signed May 21, 2020

Bruce R. Lerner, Jacob Karabell, Bredhoff and Kaiser PLLC, Washington, DC, for Plaintiff.

Kuntal Cholera, U.S. Department of Justice, Washington, DC, for Defendants.

MEMORANDUM OPINION

GEORGE J. HAZEL, United States District Judge

In May 2018, President Donald J. Trump issued three executive orders regarding federal labor-management relations. ECF No. 1 at 2.¹ Plaintiff National Association of Agriculture Employees, a federal sector labor organization, subsequently brought this civil action against the President; the United States Department of Agriculture, Animal and Plant Health Inspection Service, Plant Protection and Quarantine ("APHIS PPQ"); and Dale Cabaniss, Director of the Office of Personnel Management ("OPM") (collectively, "the Government"), challenging the executive orders as violative of federal laws governing labor-management relations. ECF No. 1. Pending before the Court is the Government's Motion to Dismiss for Lack of Subject-Matter Jurisdiction. ECF No. 13. No hearing is necessary. See Loc. R. 105.6 (D. Md. 2018). For the following reasons, the Government's Motion to Dismiss for Lack of Subject-Matter Jurisdiction is granted.

I. BACKGROUND²

A. The Statutory Framework

In 1978, Congress enacted the Federal Service Labor-Management Relations Statute (the "Statute") as part of the broader Civil Service Reform Act ("CSRA") based upon its findings that "the statutory protection of the right of employees to organize, bargain collectively, and participate through labor organizations of their own choosing in decisions which affect them ... safeguards the public interest," "contributes to the effective conduct of public business," and "facilitates and encourages the amicable settlements of disputes between employees and their employers involving conditions of employment." 5 U.S.C. § 7101(a)(1). The purpose of the Statute was "to prescribe certain rights and obligations of the employees of the Federal Government and to establish procedures which are designed to meet the special requirements and needs of the Government." Id. § 7101(b). Generally speaking, the Statute strives to accomplish these goals by, among other things, affirming the right of federal employees to organize and bargain collectively, see id. §§ 7102; determining which matters must, can, or cannot be bargained over, see id. §§ 7102, 7106, 7117, 7121, 7131; and developing a dispute-resolution mechanism for the various foreseeable issues that might arise during the collective bargaining process or as part of a final collective bargaining agreement, see id. §§ 7104–5, 7116, 7118–19, 7121–22, 7132.

Specifically, the Statute provides that federal unions and agencies "shall meet and negotiate in good faith for the purposes of arriving at a collective bargaining agreement." Id. § 7114(a)(4). "Collective bargaining" is defined as "the performance of the mutual obligation of ... an agency and the [union] ... 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." Id. § 7103(a)(12). "[C]onditions of employment" that are subject to negotiation under the Statute include "personnel policies, practices, and matters, whether established by rule, regulation, or otherwise, affecting working conditions." Id. § 7103(a)(14). Agencies and unions must bargain over the scope of grievance procedures for disputes between employees and management, see id. § 7121(a), and the availability of "official time," id. § 7131(d), which is the time spent by employees on union business during working hours, and they may bargain over a narrow category of "permissive" matters "at the election of the agency," id. § 7106(b)(1); see also id. (allowing, "at the election of the agency," negotiation as to the "numbers, types, and grades of employees or positions assigned to" any project, or "the technology, methods, and means for performing work").

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)(2). 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 disputes, 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 then subject to direct review in the courts of appeals. Id. §§ 7123(a), (c).

B. The Executive Orders

In May 2018, the President issued three executive orders (the "Executive Orders") regarding federal labor-management relations: (1) Developing Efficient, Effective, and Cost-Reducing Approaches to Federal Sector Collective Bargaining , Exec. Order No. 13,836, 83 Fed. Reg. 25,329 (May 25, 2018) (the "Collective Bargaining Order"); (2) Ensuring Transparency, Accountability, and Efficiency in Taxpayer-Funded Union Time Use , Exec. Order No. 13,837, 83 Fed. Reg. 25,335 (May 25, 2018) (the "Official Time Order"); and (3) Promoting Accountability and Streamlining Removal Procedures Consistent with Merit System Principles , Exec. Order No. 13,839, 83 Fed. Reg. 25,343 (May 25, 2018) (the "Removal Procedures Order"). See ECF No. 1 at 2.

The Collective Bargaining Order provides agencies with certain procedures that they should seek to implement during negotiations with unions. See 83 Fed. Reg. at 25,331 –32. It directs agencies not to bargain over permissive matters, as those matters are defined in 5 U.S.C. § 7106(b)(1), and it advises that a reasonable negotiation time period is six weeks for ground rules and four to six months for a collective bargaining agreement. Id. It also states that negotiation should take place through the exchange of written proposals. Id. at 25,332.

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. 83 Fed. Reg. at 25,336. It places caps on the use of official time and requires preauthorization for the use of official time. Id. at 25,336 –37. It also restricts union access to government resources and places limits on the reimbursement of employees’ expenses incurred while undertaking union activities. Id. at 25,337, 25,339.

The Removal Order instructs agencies to seek to exclude from grievance procedures any dispute over a decision to remove an employee "for misconduct or unacceptable performance." 83 Fed. Reg. at 23,344. Subject to certain exceptions, it also prohibits agencies from resolving disputes over employee ratings and incentive pay through grievance or arbitration proceedings, and it mandates that certain employees may have no more than thirty days to improve their performance before being reassigned, demoted, or fired. Id. at 25,334 –45.

C. Previous Litigation

Various federal employee unions have previously brought two similar but separate lawsuits challenging the Executive Orders. In AFGE v. Trump , 318 F. Supp. 3d 370 (D.D.C. 2018), the American Federation of Government Employees ("AFGE") and numerous other federal employee unions brought consolidated cases, contending that (1) the President had no statutory or constitutional authority to issue executive orders pertaining to the field of federal labor relations; (2) provisions within the Executive Orders conflicted with particular sections of the Statute in a manner that abrogated the unions’ statutory right to bargain collectively; and (3) the Executive Orders violated the Constitution, specifically the Take Care Clause and the First Amendment right to freedom of association. 318 F. Supp. 3d at 380. On cross-motions for summary judgment, the Government contended that the district court lacked subject-matter jurisdiction over the dispute due to the channeling effect of the Statute's administrative review scheme, that some of the unions’ claims were insufficiently concrete to be prudentially ripe for judicial decision, and that the unions’ claims failed on the merits. Id. The district court held that it did have subject-matter jurisdiction and that the legal claims were generally ripe for judicial resolution. Id. at 395–412. On the merits, the district court determined that although the President did have statutory authority to issue executive orders in the field of federal labor relations generally, nine provisions of these specific Executive Orders violated the Statute. Id. at 412–33. The district court therefore enjoined the executive branch from implementing those nine provisions. Id. at 440.

On appeal, the United States Court of Appeals for the D.C. Circuit reversed the district court, finding that it lacked subject-matter jurisdiction. AFGE v. Trump , 929 F.3d 748, 754 (D.C. Cir. 2019). Applying the two-step framework articulated by the Supreme Court in Thunder Basin Co. v. Reich , 510 U.S. 200, 114 S.Ct. 771, 127 L.Ed.2d 29 (1994), the D.C. Circuit determined that Congress had precluded district court jurisdiction over challenges to the Executive Orders by establishing an alternative statutory scheme for administrative and judicial review in the Statute. AFGE , 929 F.3d at 754–61. At the first step, the D.C. Circuit determined that Congress intended the statutory scheme laid out in the Statute "to be exclusive with respect to claims within its scope." Id. at 755. At the second step, the D.C. Circuit determined that all meaningful review was ...