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American Federation of Government Employees v. Trump

United States Court of Appeals, District of Columbia Circuit

July 16, 2019

American Federation of Government Employees, AFL-CIO, et al., Appellees
Donald J. Trump, in his official capacity as President of the United States, et al., Appellants

          Argued April 4, 2019

          Appeal from the United States District Court for the District of Columbia (No. 1:18-cv-01261)

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

          Victoria L. Bor, Jonathan D. Newman, Harold C. Becker, Matthew J. Ginsburg, Brian A. Powers, Micah Berul, and Anthony Tucci 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 entered an appearance.

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

          Adina H. Rosenbaum and Adam R. Pulver 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.

         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.


         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 (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. 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).


         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 ...

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