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

318 F.Supp.3d 370

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.

No. 1:18-cv-1261 (KBJ)

United States District Court, District of Columbia.

Signed August 25, 2018

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.

MEMORANDUM OPINION

KETANJI BROWN JACKSON, United States District Judge

TABLE OF CONTENTS

I. INTRODUCTION...378

II. BACKGROUND...382

A. An Historical Overview Of The Management Of Federal Public Employees...382

B. The Statutory Provisions That Are Relevant To The Instant Dispute...383

1. The Purpose, Structure, And Provisions Of The FSLRMS...384

2. The Federal Labor Relations Authority...385

3. Relevant Miscellaneous Provisions Of The United States Code...386

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

D. Procedural History...391

III. APPLICABLE LEGAL STANDARDS...392

IV. ANALYSIS...394

A. This Court Has Subject-Matter Jurisdiction Because Congress Did Not Intend For This Matter To Be Resolved Through The FSLMRS Or CSRA Administrative Review Schemes...395

1. Both The FSLMRS And The CSRA Evince A Fairly Discernable Congressional Intent To Channel Certain Claims To The FLRA And The MSPB...396

2. The Unions' Claims Are Not Of The Type That Congress Intended To Funnel Through The FSLMRS Or CSRA Statutory Review Schemes...397

a. Meaningful Judicial Review Of The Unions' Claims Would Be Foreclosed If The District Courts Could Not Hear These Claims...397

b. The Unions' Claims Are Wholly Collateral To The FSLMRS And The CSRA Administrative-Judicial Review Schemes...403

c. Although Potentially Helpful, The Agencies' Expertise Is Not Essential To Resolving The Instant Claims...408

B. The Unions' Claims Are Fit For Judicial Resolution...409

C. The President Has The Statutory And Constitutional Authority To Issue Executive Orders That Pertain To Federal Labor-Management Relations, So Long As

His Orders Do Not Conflict With The Will Of Congress...412

1. Before The Enactment Of The FSLMRS And CSRA, Presidents Had The Authority To Issue Executive Orders Regulating Federal Labor-Management Relations...413

2. The FSLMRS And CSRA Did Not Divest The President Of Any Authority In This Field...415

3. The President's Executive Orders Concerning This Area Must Be Consistent With Congress's Pronouncements...417

D. Many Of The Order Provisions The Unions Have Challenged In This Case Impermissibly Infringe Upon The Statutory Right To Bargain Collectively...418

1. Section 7103(a) And D.C. Circuit Caselaw Define The Contours Of The Statutory Right To Bargain Collectively...419

a. The Duty To Bargain...420

b. The Duty To Act In Good Faith...421

c. Takeaways Regarding Agency Conduct With Respect To Federal Labor Negotiations...421

2. Certain Provisions Of The Challenged Executive Orders Dramatically Curtail The Scope Of Bargaining Because Agencies And Unions Will No Longer Negotiate Over A Host Of Significant Issues...424

a. The Orders Remove These Matters From The Scope Of The Right To Bargain Despite The Fact That Congress Has Made Them Negotiable...424

b. The Removed Topics Are Important To The Functioning Of Labor Organizations And The Fairness Of Collective Bargaining Negotiations...426

3. Certain Provisions Of The Executive Orders Impede The Prospect Of Good Faith Negotiations...426

4. Defendants' Best ‘No-Conflict’ Counterarguments Are Meritless...430

a. The Specious Section 7117 Suggestion...433

b. The Mistaken ‘Mere Guidance’ Characterization...436

E. The Remaining Challenged Provisions Of These Executive Orders Are Legitimate Exercises Of The President's Authority...437

V. CONCLUSION...440

MEMORANDUM OPINION

I. INTRODUCTION

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...