Serv. Emps. Int'l Union Local 200 United v. Trump

• Citation: 420 F.Supp.3d 65
• Decision Date: 03 October 2019
• Docket Number: 1:19-CV-01073 EAW
• Parties: SERVICE EMPLOYEES INTERNATIONAL UNION LOCAL 200 UNITED and Service Employees International Union, Plaintiffs, v. Donald J. TRUMP, President of the United States, Margaret Weichert, Acting Director of the Office of Personnel Management, and United States Office of Personnel Management, Defendants.
• Court: U.S. District Court — Western District of New York

420 F.Supp.3d 65

SERVICE EMPLOYEES INTERNATIONAL UNION LOCAL 200 UNITED and Service Employees International Union, Plaintiffs,

v.Donald J. TRUMP, President of the United States, Margaret Weichert, Acting Director of the Office of Personnel Management, and United States Office of Personnel Management, Defendants.

1:19-CV-01073 EAW

United States District Court, W.D. New York.

Signed October 3, 2019

Catherine Creighton, Creighton Johnsen & Giroux, Buffalo, NY, Mairead E. Connor, Syracuse, NY, Barbara J. Chisholm, Pro Hac Vice, Danielle Leonard, Pro Hac Vice, Megan Wachspress Altshuler Berzon LLP San Francisco, CA, Claire Prestel, Pro Hac Vice, Washington, DC, Nicole Berner, Pro Hac Vice, Service Employees International Union, Washington, DC, for Plaintiffs.

Kuntal Virendra Cholera, Covington & Burling LLP, Washington, DC, for Defendants.

DECISION AND ORDER

ELIZABETH A. WOLFORD, United States District Judge

INTRODUCTION

Plaintiffs Service Employees International Union Local 200United ("SEIU Local 200U") and Service Employees International Union ("SEIU") (collectively "Plaintiffs") bring this action seeking declaratory and injunctive relief related to three executive orders issued by defendant Donald J. Trump ("President Trump") and subject to implementation by defendant Margaret Weichert ("Director Weichert"), the Acting Director of defendant United States Office of Personnel Management ("OPM") (hereinafter referred to collectively with President Trump and Director Weichert as "Defendants"). (Dkt. 1). Plaintiffs assert that the challenged executive orders unlawfully "interfere with federal employees' statutory right to engage in collective bargaining." (Id. at ¶ 1). Currently before the Court is Plaintiffs' motion for a temporary restraining order ("TRO"). (Dkt. 26). For the reasons discussed below, the Court denies the request for a TRO.

BACKGROUND

I. Statutory Scheme

In 1978, Congress enacted Title VII of the Civil Service Reform Act ("CSRA"), "the first statutory scheme governing labor relations between federal agencies and their employees." Bureau of Alcohol, Tobacco and Firearms v. Fed. Labor Relations Auth. , 464 U.S. 89, 91, 104 S.Ct. 439, 78 L.Ed.2d 195 (1983) [hereinafter " ATF "]. Before the enactment of Title VII, also known as the Federal Service Labor-Management Relations Statute ("FSLMRS"), "[p]residents used executive orders to grant federal employees ‘limited rights to engage in concerted activity’ through unions." Am. Fed'n of Gov't Emps., AFL-CIO v. Trump , 929 F.3d 748, 752 (D.C. Cir. 2019) [hereinafter " AFL-CIO II "] (quoting ATF , 464 U.S. at 91-92, 104 S.Ct. 439 ); see Employee-Management Cooperation in the Federal Service, 27 Fed. Reg. 551 (Jan. 17, 1962) ; Labor-Management Relations in the Federal Service, 34 Fed. Reg. 17,605 (Oct. 29, 1969).

The FSLMRS "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." AFL-CIO II , 929 F.3d at 752. The statute also provides that no provision of the FSLMRS "shall be construed to ... limit, curtail, abolish, or terminate any function of, or authority available to, the President which the President had immediately before the [FSLMRS]'s effective date" unless "otherwise expressly provided." Pub. L. No. 95-454, § 904, 92 Stat. 1111, 1224 (codified at 5 U.S.C. § 1101 note).

Additionally, the FSLMRS established the Federal Labor Relations Authority ("FLRA"), "a three-member independent and bipartisan body within the Executive Branch" that "adjudicates negotiability disputes, unfair labor practice complaints, bargaining unit issues, arbitration exceptions, and conflicts over the conduct of representational elections." ATF , 464 U.S. at 92, 104 S.Ct. 439 (citing 5 U.S.C. § 7104 ). The FLRA can hold hearings, take testimony, and issue subpoenas, and if the FLRA finds an agency has violated the FSLMRS, it can require the agency "to cease and desist ... and require it to take any remedial action it considers appropriate." 5 U.S.C. § 7105(g). "The FLRA's decisions in such disputes are subject to direct review in the courts of appeals." AFL-CIO II , 929 F.3d at 752 (citing 5 U.S.C. § 7123(a), (c) ).

On May 25, 2018, President Trump issued the three challenged executive orders (the "Executive Orders") regarding federal labor-management relations. (Dkt. 20-1 at 12; Dkt. 29 at 10); see Developing Efficient, Effective, and Cost-Reducing Approaches to Federal Sector Collective Bargaining, 83 Fed. Reg. 25329 (May 25, 2018) ("Collective Bargaining Procedures Order"); Ensuring Transparency, Accountability, and Efficiency in Taxpayer-Funded Union Time Use, 83 Fed. Reg. 25335 (May 25, 2018) ("Official Time Order"); Promoting Accountability and Streamlining Removal Procedures Consistent with Merit System Principles, 83 Fed. Reg. 25343 (May 25, 2018) ("Removal Procedures Order"). The Collective Bargaining Procedures Order sets forth procedures for collective bargaining negotiations, 83 Fed. Reg. 25329 ; the Official Time Order prescribes parameters regarding the use of official time for union activities, 83 Fed. Reg. 25335 ; and the Removal Procedures Order addresses performance appraisals and removal of employees, 83 Fed. Reg. 25343. The Executive Orders require agencies "to fulfill their obligation to bargain in good faith," 83 Fed. Reg. 25329, 25331 ; 83 Fed. Reg. 25335, 25336 ; 83 Fed. Reg. 25343, 25344, and state they are to be "implemented consistent with applicable law," 83 Fed. Reg. 25329, 25333 ; 83 Fed. Reg. 25335, 25340 ; 83 Fed. Reg. 25343, 25346.

In July 2018, the OPM issued three guidance documents (the "Guidances") regarding the rules and requirements set forth in the Executive Orders. Although OPM rescinded the Guidances after the United States District Court for the District of Columbia issued an injunction that prohibited OPM from implementing or giving effect to nine provisions of the Executive Orders, see Am. Fed. of Gov't Emps., AFL-CIO v. Trump , 318 F. Supp. 3d 370, 440 (D.D.C. 2018) [hereinafter " AFL-CIO I "], reversed and vacated, AFL-CIO II , 929 F.3d 748, OPM intends to immediately implement the Executive Orders after the injunction is lifted (Dkt. 20-5 at ¶ 11).

II. Prior Litigation

In June 2018, seventeen federal employee unions, not including Plaintiffs, filed four lawsuits in the district court in D.C. challenging the legality of the Executive Orders. AFL-CIO I , 318 F. Supp. 3d at 391. The cases were consolidated into a single action, and the parties agreed to resolve the matters via summary judgment proceedings. Id. at 392. On August 25, 2018, the district court in D.C. issued a decision finding that it had subject matter jurisdiction and that the President has constitutional and statutory authority to issue federal labor relations executive orders.

Id. at 395-418. However, the D.C. district court concluded that nine provisions of the Executive Orders violated the FSLMRS. Id. at 418-37. The court enjoined "the President's subordinates from implementing or giving effect to" those nine provisions of the Executive Orders. Id. at 440. The government appealed the court's decision. AFL-CIO II , 929 F.3d at 754.

On July 16, 2019, the D.C. Circuit unanimously reversed the district court's ruling and vacated the judgment, holding that "the district court lacked subject matter jurisdiction." Id. The D.C. Circuit found Congress intended that the unions' challenges to the Executive Orders be reviewed by the FLRA, and accordingly that the district court lacked jurisdiction to hear those claims. Id. at 761. The unions petitioned for en banc review, which, in the absence of a request by any judge on the D.C. Circuit for a vote, the court denied on September 25, 2019. Am. Fed. of Gov't Emps., AFL-CIO v. Trump , No. 18-5289, Per Curiam Order (D.C. Cir. Sept. 25, 2019). The D.C. Circuit's mandate is set to issue on or about October 2, 2019, which will dissolve the district court's injunction. (Dkt.26-1 at 5).¹

III. The Unions and Their Claims

Plaintiffs are unions who represent federal workers. (Dkt. 20-1 at 18). SEIU is the certified representative for a nationwide unit of the Department of Veterans Affairs ("VA") employees whose facility-based contracts are negotiated by local units such as SEIU Local 200U. (Id. at 19). SEIU Local 200U represents federal employees who work at VA medical facilities in Buffalo, Canandaigua, Syracuse, and Albany, New York, and in Erie, Pennsylvania. (Id. ). "These bargaining units include employees who provide pharmacy, rehabilitation, and prosthetic services; who provide specialized treatment such as psychological or speech/language therapy; and who serve as police officers and firefighters on VA campuses." (Id. at 18-19). SEIU Local 200U's members are covered by collective bargaining agreements negotiated between them—acting through SEIU Local 200U as their representative—and the VA facilities. (Dkt. 1 at ¶ 14). SEIU Local 200U maintains offices in Buffalo and Rochester to serve its members. (Id. ). Plaintiffs allege that SEIU Local 200U "cannot function unless its employee representatives have time to perform the duties assigned to them by statute," and that "the union cannot fulfill its obligations without employee representatives." (Dkt. 20-1 at 19).

Plaintiffs assert various claims regarding the lawfulness of the content of the Executive Orders, including claims that the Executive Orders violate the Administrative Procedures Act (the "APA"), 5 U.S.C. § 500 et seq. (Dkt. 1 at 19-25). For their APA claims, Plaintiffs contend Defendants violated the APA in two different ways: (1) that "OPM is poised to implement rules that should be subject to notice and comment rulemaking without complying with the APA's procedural requirements" (Dkt. 26-1 at 12); and (2) that OPM's implementation of the provisions of the Executive Orders will violate statutory provisions set forth in the CSRA and FSLMRS (id. at 14-16).

IV. Procedural...