American Federation of Government Employees, Afl-Cio v. Trump

• Court: District Court, District of Columbia
• Decided: August 25, 2018
• Docket: Civil Action No. 2018-1261
• Status: Published

Opinion

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

) AMERICAN FEDERATION OF ) GOVERNMENT EMPLOYEES, AFL- ) CIO, ) ) Plaintiff, ) ) v. ) No. 1:18-cv-1261 (KBJ) ) DONALD J. TRUMP, et al., ) ) Defendants. ) ) MEMORANDUM OPINION ) 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. ) )

TABLE OF CONTENTS

I. INTRODUCTION ................................................................................................. 1 II. BACKGROUND ................................................................................................... 7 A. An Historical Overview Of The Management Of Federal Public Employees ....... 7 The Statutory Provisions That Are Relevant To The Instant Dispute ................. 10 1. The Purpose, Structure, And Provisions Of The FSLRMS ........................... 11 2. The Federal Labor Relations Authority ....................................................... 14 3. Relevant Miscellaneous Provisions Of The United States Code ................... 16 The Challenged Executive Orders .................................................................... 17 1. Executive Order 13,836 (“The Collective Bargaining Procedures Order”) ... 17 2. Executive Order 13,837 (“The Official Time Order”) .................................. 19 3. Executive Order 13,839 (“The Removal Procedures Order”) ....................... 23 Procedural History ........................................................................................... 25 III. APPLICABLE LEGAL STANDARDS ................................................................. 27 IV. ANALYSIS ......................................................................................................... 31 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 ...................................................................... 33 1. Both The FSLMRS And The CSRA Evince A Fairly Discernable Congressional Intent To Channel Certain Claims To The FLRA And The MSPB .......................................................................................... 35 2. The Unions’ Claims Are Not Of The Type That Congress Intended To Funnel Through The FLRA or CSRA Statutory Review Schemes ................ 37 a. Meaningful Judicial Review Of The Unions’ Claims Would Be Foreclosed If The District Courts Could Not Hear These Claims ..... 37 b. The Unions’ Claims Are Wholly Collateral To The FSLMRS And The CSRA Administrative-Judicial Review Schemes ............... 48

ii c. Although Potentially Helpful, The Agencies’ Expertise Is Not Essential To Resolving The Instant Claims ..................................... 56 The Unions’ Claims Are Fit For Judicial Resolution ......................................... 59 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 ................ 66 Before The Enactment Of The FSLMRS And CSRA, Presidents Had The Authority To Issue Executive Orders Regulating Federal Labor - Management Relations ................................................................................ 66 2. The FSLMRS And CSRA Did Not Divest The President Of Any Authority In This Field ............................................................................... 71 3. The President’s Executive Orders Concerning This Area Must Be Consistent With Congress’s Pronouncements .............................................. 75 Many Of The Order Provisions The Unions Have Challenged In This Case Impermissibly Infringe Upon The Statutory Right To Bargain Collectively ...... 76 1. Section 7103(a) And D.C. Circuit Caselaw Define The Contours Of The Statutory Right To Bargain Collectively ............................................... 78 a. The Duty To Bargain ..................................................................... 80 b. The Duty To Act In Good Faith ..................................................... 82 c. Takeaways Regarding Agency Conduct With Respect To Federal Labor Negotiations ..................................................... 83 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 ............................. 88 a. The Orders Remove These Matters From The Scope Of The Right To Bargain Despite The Fact That Congress Has Made Them Negotiable ........................................................................... 88 b. The Removed Topics Are Important To The Functioning Of Labor Organizations And The Fairness Of Collective Bargaining Negotiations ................................................................ 92 3. Certain Provisions Of The Executive Orders Impede The Prospect Of Good Faith Negotiations ...................................................................... 100 4. Defendants’ Best ‘No-Conflict’ Counterarguments Are Meritless .............. 105 a. The Specious Section 7117 Suggestion ........................................ 105 b. The Mistaken ‘Mere Guidance’ Characterization .......................... 111 The Remaining Challenged Provisions Of These Executive Orders Are Legitimate Exercises Of The President’s Authority ........................................ 113 V. CONCLUSION ................................................................................................. 118

iii 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 (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, 138 S. Ct. 897, 905 (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 (1995) (rebuking Congress’s intrusion into the judicial sphere ); Lujan v.

Defs. of Wildlife, 504 U.S. 555, 577 (1992) (preventing the Judiciary from intruding

into the executive sphere); Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 655

(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 supersed e 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

1 The lead plaintiff unions are: the American Federation of Government Employees, AFL -CIO (“AFGE”); the National Treasury Employees Union (“NTEU”); the National Federation of Federal Employees, FD1, IAMAW, AFL-CIO (“NFFE”); and the American Federation of State, County and Municipal Employees, AFL-CIO (“AFSCME”). Joining those Plaintiffs are the International Association of Machinists and Aerospace Worker s, AFL-CIO; the Seafarers International Union of North America, AFL-CIO; the National Association of Government Employees, Inc.; the International Brotherhood of Teamsters, the Federal Education Association, Inc. ; the Metal Trades Department, AFL- CIO; the International Federation of Professional and Technical Engineers, AFL -CIO & CLC; the National Weather Service Employees Organization; the Patent Office Professional Association; the National Labor Relations Board Union; the National Labor Relations Board Professional Association; the Marine Engineers’ Beneficial Association, District No. 1 PCD, AFL -CIO; and the American Federation of Teachers, AFL-CIO.

2 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

2 Page-number citations to the documents that the parties have filed refer to the page numbers that the Court’s electronic filing system automatically assigns. 3 See Pls.’ Mem. in Supp. of Their Mot. for Summ. J. (“NFFE’s Mem.”), ECF No. 26; Pls. AFSCME’s & AFT’s Stmt. in Supp. of Mot. for Summ. J. & Joinder in Mots. Filed by Pls . AFGE, NTEU and NFFE, et al. (“AFSCME’s Mem.”), ECF No. 27 -1; Mem. Supporting Pl. NTEU’s Mot. for Summ. J. (“NTEU’s Mem.”), ECF No. 29-2; Mem. in Supp. of Pl. AFGE’s Mot. for Summ. J. (“AFGE’s Mem.”), ECF No. 30-1; Defs.’ Opp’n to Pls.’ Mots. For Summ. J. & Defs.’ Cross -Mot. for Summ. J. (“Defs.’ Mot.”), ECF 40; Pls.’ Opp’n to Defs.’ Cross Mot. for Summ. J. & Reply to Defs.’ Opp’n to Pls.’ Mot. for Summ J. (“NFFE’s Reply”), ECF No. 45; Pl. NTEU’s Consol. Opp’n to Defs.’ Cross -Mot. for Summ. J. & Reply in Supp. of its Mot. for Summ J. (“NTEU’s Reply”), ECF No. 48; Pls. AFSCME & AFT’s Opp’n to Defs.’ Cross-Mot. for Summ. J., Reply in Supp. of Pls.’ Mot. for Summ. J., & Joinder in Opp’n to Defs.’ Mot. for Summ. J. (“AFSCME’s Reply”), ECF No. 49; Pl. AFGE’s Opp’n to Defs.’ Cross Mot. for Summ. J. & Reply to Defs.’ Opp’n to AFGE’s Mo t. for Summ. J. (“AFGE’s Reply”), ECF No. 50; Defs.’ Reply in Supp. of Defs.’ Cross -Mot. for Summ. J. (“Defs.’ Reply”), ECF No. 51.

3 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 rel ations; (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 judgment motion that has been filed on behalf of

Defendants raises two threshold issues: that this Court lacks subject-matter jurisdiction

over the instant dispute due to the channeling effect of the FSLMRS’s administrative

review scheme, and that some of the Unions’ claims are insufficiently concrete to be

prudentially ripe for judicial decision. On the merits, Defendants’ summary judgment

motion maintains that the President has ample statutory and constitutional authority to

issue executive orders in the field of federal labor relations, and that the Orders do not,

in fact, conflict with the FSLMRS’s complicated statutory regime, either because the

challenged provisions only constitute “guidance” to federal agencies or because a

section of the FSLMRS specifically authorizes the President to reduce the scope of

collective bargaining through the issuance of “government-wide rules or regulations.”

Defendants further assert that the Take Care Clause claim is nonjusticiable, and that the

First Amendment freedom-of-association claim is baseless.

For the reasons explained at length below, this Court has decided that the Unions

4 have the better of this argument. With respect to Defendants’ threshold concerns, the

Court concludes that it has subject-matter jurisdiction over the instant claims because,

even though most disputes concerning federal labor-management relations must be

channeled through the administrative review scheme that Congress has prescribed, this

matter is different in kind than the disputes that Congress intended the FSLMRS’s

channeling provisions to cover. The Court further finds that the Unions’ legal claims

are generally fit for judicial resolution, and therefore, the prudential ripeness doctrine

poses no bar to this Court’s consideration of these challenges now.

As to the merits of the Unions’ contentions, while past precedents and pertinent

statutory language indicate that the President has the authority to issue executive orders

that carry the force of law with respect to federal labor relations, it is undisputed that

no such orders can operate to eviscerate the right to bargain collectively as envisioned

in the FSLMRS. In this Court’s view, the challenged provisions of the executive orders

at issue have that cumulative effect. Stated succinctly, by enacting the FSLMRS,

Congress undertook to guarantee federal employees the statutory right to engage in

good-faith collective bargaining with agencies and executive branch officials, and the

pronouncements that the FSLMRS makes are clearly based upon Congress’s stated

opinion that “the right of employees” to “bargain collectively . . . safeguards the public

interest, contributes to the effective conduct of public business, and facilitates and

encourages the amicable settlements of disputes” in regard to the “conditions of

[federal] employment.” 5 U.S.C. § 7101(a)(1). Viewed collectively, the challenged

executive orders reflect a decidedly different policy choice; namely, the President’s

stated view that federal employees’ right to engage in collective bargaining over the

5 conditions of their employment is not apropos of an “effective and efficient

Government[,]” Exec. Order No. 13,836 § 1(b), and should be rendered subordinate to

the agencies’ interest “in developing efficient, effective, and cost-reducing collective

bargaining agreements[,]” id. (preamble); see also Exec. Order No. 13,837 (preamble);

Exec. Order No. 13,839 (preamble).

Certain provisions of the Orders plainly further the President’s intention to

restrict the scope and effectiveness of federal employees’ right to collective bargaining

vis-à-vis the agencies (e.g., those directives that stunt negotiations by narrowing the

terms that the agency can entertain related to significant matters, such as access to

government office space for union business and the amount of official time that can be

allotted to negotiations and counseling), see Exec. Order No. 13,836 § 5(e), 6; Exec.

Order No. 13,837 §§ 4(a), 4(b); Exec. Order No. 13,839 §§ 4(a), 4(c), or clearly

constrain agency negotiators’ ability to conduct collective bargaining negotiations in

good faith (e.g., those mandates that direct agency representatives to pursue specific

positions “whenever possible,” such as limiting the annual aggregate official time

awarded to one hour per employed union member per year), see Exec. Order No. 13,836

§§ 5(a), 5(e); Exec. Order No. 13,837 §§ 3(a); Exec. Order No. 13,839 §§ 3. Therefore,

this Court finds that these provisions conflict with congressional intent in a manner that

cannot be sustained. (See Part IV.D, infra.) What remains of the Orders are those

provisions that the Unions have not opted to challenge, and the few challenged

provisions described in Part IV.E. See Exec. Order No. 13,836 § 5(c); Exec. Order No.

13,837 §§ 2(j), 4(c); Exec. Order No. 13,839 §§ 2(b), 2(c), 4(b)(iii), 7.

This all means that, ultimately, both sides’ motions for su mmary judgment must

6 be GRANTED IN PART AND DENIED IN PART, and this Court will enjoin the

President’s subordinates within the Executive Branch to disregard: sections 5(a), 5(e),

and 6 of Executive Order 13,836; sections 3(a), 4(a), and 4(b) of Executive Or der

13,837; and sections 3, 4(a), and 4(c) of Executive Order 13,839. In this C ourt’s view,

these directives undermine federal employees’ right to bargain collectively as protected

by the FSLMRS, and as a result, the President must be deemed to have exceeded his

authority in issuing them. A separate order accompanies this Memorandum Opinion.

II. BACKGROUND

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

The history of federal public employment in the United States evidences two

competing visions of the proper relationship between the President and the individuals

who are employed to work for the federal government within the Executive Branch.

See The Civil Service and the Statutory Law of Public Employment , 97 Harv. L. Rev.

1619, 1619 (1984). The first of these visions emphasizes “broad deference to the

executive in matters of public employment[,]” and is based on the belief that such

deference “is essential both to efficient public administration and [to] the realization of

the popular will.” Id. According to this view, the President must have free reign to

discharge federal employees, and to regulate labor relations between the government

and its employees, because such authority is necessary to run a capable a nd efficient

Federal Government. See id. at 1620. This belief also maintains that such power is

necessary to ensure that the President can promote the will of the people by installing

federal bureaucrats who actually seek to achieve the political platform that undergir d

the President’s election. See id.

7 The second vision of public employment worries that unfettered “executive

discretion” to hire and fire civil servants can damage “the integrity of public

administration in general,” especially if an unchecked administ ration arbitrarily

discharges career employees who hold contrary political views or who seek to blow the

whistle on abusive employment practices within the Executive Branch. Id. This second

vision of public employment also often asserts that a public employee has acquired a

“property interest of sorts in his office[,]” id., and expresses concerns not only about

the impact that an abrupt dismissal might have on the administration of the federal

government as a whole, but also on that employee’s future empl oyment prospects, see

id. at 1621. Based on such concerns, the second vision of the civil service system

“fosters the view that the public executive ought to be extensively constrained in

employment decisions” regarding apolitical civil service employees. Id. at 1619; see

also, e.g., Harrison v. Bowen, 815 F.2d 1505, 1518 (D.C. Cir. 1987) (discussing how

certain statutes constrain executive discretion to remove employees).

As relevant here, these two different visions of the role of the President in

managing the civil service have proven ascendant at different moments in American

history, including during periods that preceded the statute at issue in this case. Indeed,

because “[i]nitially, presidents had broad powers to fill the civil service with their

[own] appointees[,]” Jacob Marisam, The President’s Agency Selection Powers, 65

Admin. L. Rev. 821, 863 (2013), throughout the nineteenth century, newly inaugurated

presidents would regularly purge the ranks of the civil service, see id.; see also U.S.

Civil Serv. Comm’r v. Nat’l Ass’n of Letter Carriers, 413 U.S. 548, 557–58 (1973)

(describing these practices). The exercise of presidential power to manage the federal

8 workforce in this way waned significantly in the mid-twentieth century, as both

President John F. Kennedy and President Richard M. Nixon expressly curtailed the

purging practice by issuing executive orders that afforded significant procedural

protections to civil servants. See, e.g., Exec. Order No. 11,491, 34 Fed. Reg. 17605

(October 29, 1969); Exec. Order No. 10,988, 27 Fed. Reg. 551 (January 17, 1962) . The

Kennedy and Nixon orders also authorized the creation of labor unions representing

federal government employees, and expressly granted federal employees “limited

collective bargaining rights[,]” thus “provid[ing] the initial authorization for federal

experimentation with unionization.” See Scott L. Novak, Collective Bargaining, 63

Geo. Wash. L. Rev. 693, 695–96 (1995); see also Bureau of Alcohol, Tobacco &

Firearms v. Fed. Labor Relations Auth., 464 U.S. 89, 91–92 (1983) (“BATF”).

With the 1970s, the view that slothful federal employees enjoyed too much

protection against discharge became increasingly popular, amidst mounting concern

over government integrity in the wake of the Watergate scandal . It was against this

backdrop that Congress enacted the Civil Service Reform Act of 1978 (“the CSRA”),

Pub L. No. 95-454, 92 Stat. 1111 (1978), which was codified (as amended) in scattered

sections of Title 5 of the United States Code. This legislation was expressly billed as

an effort to codify the previous assortment of executive orders and rules that regulated

the relationships between the federal government and its civil service employees. See

The Civil Service and the Statutory Law of Public Employment , 97 Harv. L. Rev. at

1631–33. And the CSRA “comprehensively overhauled the civil service system,”

Lindahl v. Office of Pers. Mgmt., 470 U.S. 768, 773 (1985), by replacing the “outdated

patchwork of statutes and rules built up” during the previous hundred years through

9 executive orders and federal statutes, United States v. Fausto, 484 U.S. 439, 444 (1988)

(quoting S. Rep. No. 95-969, p.3 (1978)), with “an elaborate new framework for

evaluating adverse personnel actions against federal employees[,] ” id. at 443 (internal

quotation marks, citation, and alternation omitted).

Significantly for present purposes, Congress crafted the CSRA with the express

goal of “balanc[ing] the legitimate interests of the various categories of federal

employees with the needs of sound and efficient administration.” Id. at 445. To that

end, “[t]he CSRA protects covered federal employees against a broad range of

personnel practices, and it supplies a variety of causes of action and remedies to

employees when their rights under the statute are violated.” Grosdidier v. Chairman,

Broad. Bd. of Governors, 560 F.3d 495, 497 (D.C. Cir. 2009). At the same time, the

CSRA also streamlined the lengthy and laborious appeals processes that pre -dated the

CSRA, which made it easier for employers to take successful disciplinary or

performance-based actions against federal employees. See Fausto, 484 U.S. at 445.

The aforementioned FSLMRS, which addresses collective bargaining and labor

unions exclusively, is Title VII of the CSRA, and is “the first statutory scheme

governing labor relations between federal agencies and their employees.” BATF, 464

U.S. at 91.

The Statutory Provisions That Are Relevant To The Instant Dispute

The arguments presented in the parties’ cross-motions for summary judgment in

this case chiefly revolve around several provisions of the FSLMRS, see 5 U.S.C. §§

7101–06, 7111–23, 7131–35, as well as a few miscellaneous provisions that appear

either in the CSRA or elsewhere in the United States Code, see, e.g., id. §§ 4302, 7301.

10 The Purpose, Structure, And Provisions Of The FSLRMS

The very first section of the FSLMRS lays out the purposes of the statute and the

legislative findings that underlie it. Congress makes crystal clear that, in its considered

judgment, labor unions and collective bargaining “safeguard[] the public interest”;

“contribute[] to the effective conduct of public business”; and “facilitate and encourage

the amicable settlement[] of disputes between employees and their employers involving

conditions of employment[.]” 5 U.S.C. § 7101(a)(1). This statutory text also

emphasizes the importance of adhering to “the highest standards of employee

performance and the continued development and implementation of modern and

progressive work practices to facilitate and improve employee performan ce and the

efficient accomplishment of the operations of the Government.” Id. § 7101(a)(2).

Broadly speaking, the FSLMRS sets out to accomplish these goals by, among other

things: affirming the rights of federal employees to unionize and to engage in col lective

bargaining, see id. §§ 7102, 7103(a)(12); determining what 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. §§ 7104–05, 7116, 7118–19, 7121–22, 7132.

First and foremost, the FSLMRS firmly establishes the rights of federal

employees to join labor unions for the purpose of petitioning government officials about

labor matters, see id. §§ 7102, 7102(1), and describes labor unions as entities that

represent federal employees by “engag[ing] in collective bargaining with respect to

conditions of employment through representatives chosen by employees under this

chapter[,]” id. § 7102(2). The terms “collective bargaining” and “conditions of

11 employment” are terms of art within the FSLMRS, which means they have particular

meanings that bear on this case. “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). The

“conditions 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). Furthermore, when

bargaining over such matters, both agencies and union representatives must abide by

their obligation to “meet and negotiate in good faith[,]” id. § 7114(a)(4), and this means

that the parties to the negotiation must generally “enter into discussions with an open

mind and a sincere intention to reach an agreement[,]” United Steelworkers of Am.,

AFL-CIO-CLC, Local Union 14534 v. Nat’l Labor Relations Bd., 983 F.2d 240, 245

(D.C. Cir. 1993) (quoting Sign and Pictorial Union Local 1175 v. Nat’l Labor Relations

Bd., 419 F.2d 726, 731 (D.C. Cir. 1969)).

After establishing that the right to good-faith collective bargaining exists, the

statute lays out what matters are subject to negotiation and the extent to which those

matters must be discussed. In this regard, the FSLMRS establishes a three-tier system

based upon the negotiability of matters in collective bargaining discussions. First, the

FSLMRS establishes a default presumption that it is “mandatory” for agencies and

unions to bargain over the “condition[s] of employment” in the workplace. U.S. Dep’t

of the Navy, Naval Aviation Depot, Cherry Point, N.C. v. Fed. Labor Relations Auth. ,

952 F.2d 1434, 1439 (D.C. Cir. 1992); accord 5 U.S.C. §§ 7102(2), 7103(a)(12), (14).

12 Moreover, while the phrase “conditions of employment” is broad, the FSLMRS further

explicitly emphasizes at least two mandatory bargaining matters: the scope of grievance

procedures for disputes between employees and management, see 5 U.S.C. § 7121(a),

and the availability of “official time[,]” id. § 7131(d)—i.e., the availability of paid time

to union members to work on union-related matters, see BATF, 464 U.S. at 91. Second,

the FSLMRS explicitly designates a narrow category of matters (listed in section

7106(b)(1)) as ‘permissive’ matters for bargaining, in the sense that the parties may

bargain over the matters contained within this section “at the election of the agency[. ]”

5 U.S.C. § 7106(b)(1); see id. (allowing, “at the election of the agency,” negotiation as

to the “numbers, types, and grades of employees or posit ions assigned to” any project,

or “the technology, methods, and means or performing work”); see also Nat’l Treasury

Emps. Union v. Fed. Labor Relations Auth., 414 F.3d 50, 53 (D.C. Cir. 2005)

(acknowledging that these matters constitute “permissive” subjects of bargaining).

Third and finally, the FSLMRS prohibits negotiation over matters relating to

management rights or those matters subject to Government -wide rules or regulations.

Accordingly, none of the bargaining rights the FSLMRS confers may interfere with the

rights of federal agencies “to determine the mission, budget, organization, number of

employees, and internal security practices of the agency” or “to hire, assign, dire ct,

layoff, and retain employees . . . or to suspend, remove, reduce in grade or pay, or take

other disciplinary action against such employees” as allowed by law. 5 U.S.C.

§ 7106(a). The statute also frees federal agencies of any obligation to negotiate over

those “matters which are the subject of any . . . Government -wide rule or regulation[.]”

Id. § 7117(a)(1). This means that the right to collective bargaining does not extend to

13 rules or regulations that are “generally applicable throughout the Feder al

Government[,]” even if the rule does not “apply[] to . . . a fixed minimum percentage of

the federal civilian workforce.” Overseas Educ. Ass’n, Inc. v. Fed. Labor Relations

Auth., 827 F.2d 814, 816–17 (D.C Cir. 1987) (internal quotation marks and citation

omitted); see also Am. Fed’n of Gov’t Emps., Local 2782 v. Fed. Labor Relations Auth. ,

803 F.2d 737, 741 (D.C. Cir. 1986).

As mentioned, the FSLMRS also recognizes that a number of disputes may arise

in the context of collective bargaining negotiations or during the execution of a

collective bargaining agreement. Thus, the statute prohibits labor unions or federal

agencies from engaging in “unfair labor practices[,]” such as interfering with the ability

of employees or agencies to pursue their rights under the FSLMRS, or refusing to

negotiate in good faith. 5 U.S.C. § 7116(a)(1), (a)(5), 7116(b)(1), (b)(5). It also

provides mechanisms for agencies and labor unions to resolve any impasse during

negotiations, id. § 7119, and to determine whether a union’s proposal is actually

negotiable under the FSLMRS, id. § 7117(c).

The Federal Labor Relations Authority

The various relevant provisions of the FSLMRS discussed above cover a lot of

substantive ground regarding the scope of federal labor-management relations. But

there’s more: to ensure that these statutory prescriptions are administered effectively,

Congress also created a permanent agency that it named the Federal Labor Relations

Authority (“FLRA”). See id. § 7104(a). The FLRA has three members who are

appointed by the President with the advice and consent of the Senate. See id. § 7104(a),

(b). No more than two of its three members may come from the same political party,

see id. § 7104(a), and the members may “be removed by the President only upon notice

14 and hearing and only for” cause, id. § 7104(b). Thus, the FLRA is a bipartisan,

independent agency. See Secs. Exch. Comm’n v. Fed. Labor Relations Auth., 568 F.3d

990, 997 (D.C. Cir. 2009) (Kavanaugh, J., concurring).

Per the FSLMRS, the FLRA must “provide leadership in establishing policies

and guidance relating to matters under” the statute, 5 U.S.C. § 7105(a)(1), and the

agency is specifically tasked with promulgating regulations pertaining to the FSLMRS,

see id. § 7134. The FLRA must also carry out a number of other prescribed duties, such

as “resolv[ing] issues relating to the duty to bargain in good faith under section

7117(c)[,]” id. § 7105(2)(E); “conduct[ing] hearings and resolv[ing] complaints of

unfair labor practices[,]” id. § 7105(a)(2)(G); and providing, by and large, the final

word relating to employee grievances under any grievance procedures established by a

collective bargaining agreement, see id. § 7122.

When the FLRA is called upon to hear a dispute, it may hold hearings and take

testimony, require an agency or labor union “to cease and desist from violations” of the

FSLMRS, or otherwise “take any remedial action it considers appropriate to carry out

the policies of this chapter.” Id. § 7105(g). However, the FLRA is not the final word

on such matters; under the statute, “[a]ny person aggrieved by any final order of the

[FLRA]” may, with two minor exceptions, “institute an action for judicial review of the

Authority’s order in” the federal court of appeals where that person resides, or in the

D.C. Circuit. Id. § 7123(a). The statute further provides that when such an appeal is

filed, the court of appeals “shall have jurisdiction of the proceeding and of the question

determined therein[,]” and may affirm, modify, or set aside the FLRA’s order. Id.

§ 7123(c). Given the FLRA’s expertise and the extensive role that Congress envisioned

15 for this agency in administering the FSLMRS, the agency is entitled to Chevron

deference when interpreting the ambiguous provisions within that statute. See Fort

Stewart Schs. v. Fed. Labor Relations Auth., 495 U.S. 641, 645 (1990).

Relevant Miscellaneous Provisions Of The United States Code

Other statutory provisions that are either contained within the CSRA (but outside

of the FSLMRS), or appear elsewhere in the United States Code, are relevant to this

case. For example, in the CSRA, Congress created an agency known as the Merit

Systems Protection Board (“MSPB”) that adjudicates employee objections to certain

adverse personnel actions. See 5 U.S.C. § 7701; 5 C.F.R. § 1201.3 (listing the various

types of actions that the MSPB may hear). Among other things, the MSPB is

specifically empowered to hear cases regarding the removal or reduction in grade of an

employee “for unacceptable performance[,]” 5 U.S.C. § 4303, and cases involving an

“adverse action taken against employees . . . based on misconduct[,]” Fausto, 484 U.S.

at 446; see also 5 U.S.C. § 7513. The MSPB’s decisions are typically reviewable in the

Federal Circuit. 5 U.S.C. § 7703.

In the category of other sections of the United States Code that specifically

address the President’s ability to regulate the civil service, section 3301 of Title 5

authorizes the President to “prescribe such regulations for the admission of individuals

into the civil service in the [E]xecutive [B]ranch as will best promote the efficiency of

that service[,]” id. § 3301(1), and the President is also expressly authorized to

“ascertain the fitness of applicants as to age, health, character, knowledge, and ability

for the employment sought[,]” id. § 3301(2). Similarly, section 7301 of Title 5 states

that “[t]he President may prescribe regulations for the conduct of employees in the

[E]xecutive [B]ranch.” Id. § 7301. The public law version of the CSRA also states:

16 “no provision of [the CSRA] 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 effective date of this Act.” Civil Service Reform Act of 1978,

Pub. L. 95-454, § 904(1), 92 Stat. 1111, 1224 (internal quotation marks omitted).

The Challenged Executive Orders

President Donald J. Trump issued the Orders in this case on May 25, 2018, as

part of a coordinated effort to overhaul labor-management relations within the federal

government. 4 The Orders—dubbed “the Collective Bargaining Procedures Order”; “the

Official Time Order”; and “the Removal Procedures Order,” respectively—cover a

variety of issues, as described below.

Executive Order 13,836 (“The Collective Bargaining Procedures Order”)

Executive Order 13,836, which is officially entitled “Developing Efficient,

Effective, and Cost-Reducing Approaches to Federal Sector Collective Bargaining,”

Exec. Order No. 13,836 aims to instruct federal agencies on the procedures (e.g., the

methods and timing) that the President would like to see instituted with respect to

collective bargaining negotiations, as well as some of the subjects of negotiation that

the President would like to see eliminated from the collective bargaining process. This

Order sets the tone at the outset by admonishing federal agencies for “fall[ing] short” of

implementing the prescriptions of the FSLMRS, which in the President’s view, is

“consistent with” that statute’s pronouncement that the FSLMRS should be interpreted

to promote an “effective and efficient Government.” Id. § 1(a). The Order further

4 Defendants acknowledge that these three orders were issued simultaneously, as a package deal. (See Defs.’ Mem. at 17 (“[T]he President issued three Executive Orders designed to promote more efficient and effective approaches to federal-sector collective bargaining and labor -management relations.”).)

17 provides specific examples of such alleged failures: the President laments the fact that

“CBAs, and other agency agreements with collective bargaining representatives, often

make it harder for agencies to reward high performers, hold low performers

accountable, or flexibly respond to operational needs[,]” id., and notes that this

suboptimal result is often reached after years of taxpayer funded CBA renegotiations,

see id., under circumstances in which “[a]gencies must also engage in prolonged

negotiations before making even minor operational changes, like relocating office

space[,]” id.

As relevant to this litigation, Executive Order 13,836 purports to fix the se

problems, primarily by changing the collective bargaining procedures that federal

agencies follow. See id. §§ 5(a), (c), (e), (6). First, section 5(a) states that “[t]o

achieve the purposes of this order, agencies shall begin collective bargaining

negotiations by making their best effort to negotiate ground rules that minimize delay”

and “set reasonable time limits for good-faith negotiations[.]” Id. § 5(a). In this regard,

the Order also maintains that “a negotiating period of 6 weeks or less to achieve ground

rules, and a negotiating period of between 4 and 6 months for a term CBA under those

ground rules, should ordinarily be considered reasonable.” Id. Section 5(c),

meanwhile, explains that when collective bargaining is delayed or impeded due to a

union representative’s “failure to comply with the duty to negotiate in good faith,” the

agency shall “consider” filing an unfair labor practice complaint with the FLRA or

“propose a new contract, memorandum, or other change in agency policy and

implement that proposal if the collective bargaining representative does not offer

counter-proposals in a timely manner.” Id. § 5(c).

18 In a similar vein, section 5(e) purports to impact collective bargaining

procedures by announcing that, when “developing proposed ground rules, and during

any negotiations, agency negotiators shall request the exchange of written proposals, so

as to facilitate resolution of negotiability issues and assess the likely effect of specific

proposals on agency operations and management rights.” Id. § 5(e). Moreover, “[t]o

the extent that an agency’s CBAs, ground rules, or other agreements contain

requirements for a bargaining approach other than the exchange of written proposals

addressing specific issues,” agencies are required, “at the soonest opportunity, [to] take

steps to eliminate them.” Id. Finally, section 6 homes in on the substance of the

negotiations: it provides that “[t]he heads of agencies . . . may not negotiate over the

substance of the subjects set forth in [section 7106(b)(1) of Title 5 of the United States

Code] and shall instruct subordinate officials that they may not negotiate over those

same subjects.” Id. § 6.

The net effect of these challenged provisions is to set a presumptive timeframe

for the completion of collective bargaining negotiations (roughly five to seven months),

see id. § 5(a); to remove certain matters from the bargaining table completely, see id.

§ 6; to require agencies to seek an exchange of written proposals about specific issues

during rounds of collective bargaining, and to call for the elimination of other

approaches, see id. § 5(e); and to ask agencies to consider taking certain steps ( e.g., the

potential implementation of the agency’s own unilateral agreement) if union

representatives delay or impede the negotiations in bad faith, see id. § 5(c).

Executive Order 13,837 (“The Official Time Order”)

Executive Order 13,837 is entitled “Ensuring Transparency, Accountability, and

Efficiency in Taxpayer-Funded Union Time Use[.]” Exec. Order No. 13,837. In this

19 Order, as with all the Orders, there is no mention of Congress’s statutory statement that

“labor organizations and collective bargaining in the civil service are in the public

interest.” 5 U.S.C. § 7101(a). Rather, the Order suggests that the work of the agency

itself is the only relevant interest that the public has as far as federal employees are

concerned, and to make this crystal clear, the Order announces that “[t]o advance this

policy, executive branch employees should spend their duty hours performing the work

of the Federal Government and serving the public.” Exec. Order No. 13,837 § 1

(emphasis added). As justification for this policy statement, the Order points to

Congress’s direction that the FSLMRS should be interpreted “in a manner consistent

with the requirements of an effective and efficient government [,]” and asserts that “[a]n

effective and efficient government keeps careful track of how it spends taxpayer’s

money and eliminates unnecessary, inefficient, or unreasonable expenditures[.]” Id. In

so doing, the Order implies that the official duty time that some federal employees

(representatives of federal labor unions) spend working on union business or

representing federal employees in collective bargaining (which federal law allows) is an

inefficient and ineffective taxpayer expense. See id.

To this end, Executive Order 13,837 specifically redefines —and limits—the

extent to which federal employees may engage in union business during working hours

(a practice that the FSLMRS calls “official time” and that the Order dubs “taxpayer -

funded union time”), and the Order also prohibits federal employees from using certain

federal resources when working on non-agency business. The “[p]urpose” preamble

announces four animating principles: (1) that “agencies should ensure that taxpayer -

funded union time is used efficiently and authorized in amounts that are reasonable,

20 necessary, and in the public interest”; (2) that “[f]ederal employees should spend the

clear majority of their duty hours working for the public”; (3) that “[n]o agency should

pay for Federal labor organizations’ expenses, except where required by law”; and (4)

that agencies should “eliminate unrestricted grants of taxpayer-funded union time” by

“requir[ing] employees to obtain specific authorization[,]” “monitor [the] use of

taxpayer-funded union time[,]” and make that information available to the public, to

“ensure [such time] is used only for authorized purposes[.]” Id.

The Order then promotes these principles by laying out specific standards that

pertain to how much official time an agency can authorize through a collective

bargaining agreement. In this regard, the Order mandates that “[n]o agency shall agree

to authorize” official time under section 7131(d) of Title 5 of the United States Code

“unless such time is reasonable, necessary, and in the public interest.” Id. § 3(a).

Moreover, the Order states that, ordinarily, no federal union should, in one calendar

year, receive more authorized official time under section 7131(d) than one hour per

every federal employee within that union. See id. (asserting specifically that, while

attempting to “fulfill their obligation to bargain in good faith[,]” “[a]gencies shall

commit the time and resources necessary to strive for a negotiated union time rate of 1

hour or less”). Furthermore, if agency negotiators wish to present or accept a collective

bargaining proposal that would result in official time in excess of the rate prescribed

above, those negotiators must inform the agency head of that proposal 5 days in

advance of the date they intend to offer up or accept that proposal, see id. § 3(b)(ii), and

if the agency proceeds to authorize an amount of official time in excess of this standard,

the head of that agency has 15 days to report the relevant agreement or proposal to the

21 head of OPM, who will subsequently report that proposal and agreement to the

President of the United States, see id. § 3(b)(i).

The Executive Order also places limits on the activities that a federal employee

may participate in while on duty, and it regulates how much official time any employee

is entitled to, and what resources the government must make available to employees

during activities for which official time is allotted. To be specific, “[e]mployees may

not engage in lobbying activities during” their on-duty hours, “except in their official

capacities as an employee.” Id. § 4(a)(i). Nor may federal employees use official time

“to prepare or pursue grievances . . . brought against an agency[,]” unless that employee

is working on his own pending grievance, is serving as a witness in a grievance

proceeding, or is challenging an adverse personnel action as retaliation for

whistleblowing activity. Id. § 4(a)(v). In addition, these employees cannot spend more

than one quarter of total working hours engaged in union-related activities, see id.

§ 4(a)(ii)(1), and, if they do so, that time will count against their total permissible

official time for the next calendar year, see id. § 4(a)(ii)(3). The Order notes that this

does not apply to official time in excess of one quarter of a union employee’s total

working hours if that time is used for the purposes laid out in section 7131(a) and (c) of

Title 5 of the United States Code. See id. § 4(a)(ii)(2). But the use of any official time

will require “advance written authorization from [the employee’s] agency, except where

obtaining prior approval is deemed impractical” according to regulation. Id. § 4(b).

Finally, section 4(a)(iii) prohibits federal employees from receiving the “free or

discounted use of government property or any other agency resources if such free or

discounted use is not generally available for non-agency business by employees when

22 acting on behalf of non-federal organizations[,]” id. § 4(a)(iii), and section 4(a)(iv)

disallows reimbursement of employees for expenses incurred for performing non-

agency business, unless required by law or regulation, see id. § 4(a)(iv). The Order also

obligates both OPM and agency heads to take steps to ensure that all applicable

regulations and newly-negotiated collective bargaining agreements are brought into

conformance with those stated rules. See id. § 4(c).

In sum, the challenged portions of this Order not only seek to limit the amount of

taxpayer-funded union time (“official time”) that can be designated to a labor

organization and/or an individual union employee, see id. §§ 3(a), 4(a)(ii), 4(b), but

also prohibit union employees from using that time in relation to certain activities ( i.e.,

lobbying and some grievance-related proceedings), see id. §§ 4(a)(i), 4(a)(v). In

addition, the Order disallows union members from using government property for union

business conducted during official time, and refuses to reimburse employees for any

costs incurred during official time. See id. §§ 4(a)(iii), 4(a)(iv).

Executive Order 13,839 (“The Removal Procedures Order”)

The third, and final, executive order at issue in this lawsuit is entitled

“Promoting Accountability and Streamlining Removal Procedures Consistent With

Merit System Principles[.]” Exec. Order No. 13,839. Because federal agencies’

purported “[f]ailure to address unacceptable performance and misconduct undermines

morale, burdens good performers with subpar colleagues, and inhibits the ability of

executive agencies . . . to accomplish their missions,” this Order expressly seeks to

“advance the ability of supervisors in agencies to promote civil servant accountability

consistent with merit system principles while simultaneously recognizing employees’

procedural rights and protections[.]” Id. § 1. It mainly aims to achieve these goals by

23 encouraging the “[r]emov[al] [of] unacceptable performers” using “a straightforward

process that minimizes the burden on supervisors.” Id. § 2(a).

The relevant challenged provisions start by rejecting the idea that federal

supervisors and deciding officials should be “required to use progressive discipline”

when dealing with underperforming subordinates. Id. § 2(b). Instead, the Order makes

clear that “[a]gencies should limit opportunity periods to demonstrate acceptable

performance” once the agency deems an employee to b e performing inadequately, and

provides instead that “[t]he penalty for an instance of misconduct should be tailored to

the facts and circumstances.” Id. § 2(a), (b). For example, depending on the specific

factual circumstances, a federal employee might be removed for a first infraction—no

warnings, temporary suspensions, or second chances. See id. § 2(d) (“Suspension

should not be a substitute for removal in circumstances in which removal would be

appropriate.”). Of course, the Order notes that every employee’s disciplinary history

and work performance is unique, and thus theorizes that “[c]onduct that justifies

discipline of one employee at one time does not necessarily justify similar discipline of

a different employee at a different time.” Id. § 2(c). But it states in no uncertain terms

that progressive discipline should not be required, see id. § 2(b), and to effectuate that

policy, it further provides that no agency is permitted to make “any agreement,

including a collective bargaining agreement that limits the agency’s discretion to

remove an employee from Federal service without first engaging in progressive

discipline[,]” id. § 4(b)(iii). Along these same lines, the Order states that agencies shall

“generally [not] afford [an underperforming] employee more than a 30-day period” to

improve his unacceptable performance, unless the agency determines in its “sole

24 discretion” that a longer period is necessary. Id. § 4(c).

In an effort to further streamline the removal process, the Order takes certai n

other matters off the collective bargaining table. For example, the Order mandates that,

“[w]henever reasonable[,]” agency heads shall attempt to negotiate collective

bargaining agreements that “exclude from the application of any grievance procedures”

those disputes “concerning decisions to remove any employee from Federal service for

misconduct or unacceptable performance.” Id. § 3. Agencies are also prohibited from

subjecting “the assignments of ratings of record” or “the award of any form of incent ive

pay” (such as “cash awards[,] quality step increases[,] or recruitment, retention, or

relocation payments”) to any “grievance procedures or binding arbitration.” Id. § 4(a).

Boiled to bare essence, these provisions make it easier for the government to

dismiss federal employees for bad conduct or unsatisfactory performance at work, and

they remove certain matters relating to the grievance process from the collective

bargaining negotiations process. OPM and the heads of agencies are further directed t o

bring any current regulations, disciplinary programs, or collective bargaining

agreements into conformance with these principles as soon as possible. See id. § 7.

Procedural History

Within a month of the President signing the Orders described above, seventeen

federal employee unions filed four separate lawsuits in this Court seeking to challenge

the legality of these orders. See Am. Fed’n of Gov’t Emps., AFL-CIO v. Trump, et al.,

18-cv-1261 (KBJ); Nat’l Treasury Emps. Union v. Trump et al., 18-cv-1348 (KBJ);

Nat’l Fed’n of Fed. Emps., FD1, IAMAW, AFL-CIO, et al. v. Trump, et al., 18-cv-1395

(KBJ); Am. Fed’n of State, Cty. & Mun. Emps, et al. v. Trump, et al. , 18-cv-1444 (KBJ).

The contours of the claims that the Unions have brought in the context of those four

25 lawsuits differ slightly, but, in toto, the alleged claims can be grouped into four

categories: (1) claims that challenge the President’s authority to issue executive orders

in the field of federal labor-management relations at all (see, e.g., Compl., Nat’l Fed’n

of Fed. Emps., FD1, IAMAW, AFL-CIO, et al. v. Trump, et al., 18-cv-1395 (D.D.C. June

13, 2018) (“NFFE’s Compl.”), ECF No. 1, ¶¶ 82–95); (2) claims that challenge the

President’s authority to issue executive orders that conflict with individual provisions

of the FSLMRS (see, e.g., id. ¶¶ 96–109); (3) claims that challenge the cumulative

impact of these provisions upon the statutorily-guaranteed right to bargain collectively

(see, e.g., Am. Compl., Nat’l Treasury Emps. Union v. Trump, et al., 18-cv-1348

(D.D.C. June 15, 2018) (“NTEU’s Compl.”), ECF No. 21, ¶¶ 131–134); and (4) claims

that contend that the issuance of the Orders violate either the Constitution’s Take Care

Clause, or, in the case of section 4(a)(v) of the Official Time Order, the First

Amendment right to freedom of association (see, e.g., Compl., Am. Fed’n of State, Cty.

& Mun. Emps., et al. v. Trump, et al., 18-cv-1444 (D.D.C. June 18, 2018) (“AFSCME’s

Compl.”), ECF No. 1, ¶¶ 94–97, 114–18).

Between June 15 and June 19, 2018, this Court consolidated all of these cases

into a single action (see Minute Order of June 15, 2018; Minute Order of June 18, 2018;

Minute Order of June 19, 2018), and shortly thereafter, the parties agreed to have these

matters resolved by way of expedited summary judgment proceedings (see Scheduling

Order at 1). Plaintiffs then filed four separate motions for summary judgment,

reasserting their core claims and insisting that there is no genuine issue of material fact

regarding the impropriety of the President’s actions in issuing the Orders. (See NFFE’s

Mem.; AFSCME’s Mem.; NTEU’s Mem.; AFGE’s Mem.) Defendants filed an omnibus

26 cross-motion for summary judgment (see Defs.’ Mem.), and the parties’ summary

judgment motions have now been briefed in full (see NFFE’s Reply; AFSCME’s Reply;

NTEU’s Reply; AFGE’s Reply; Defs.’ Reply).

Defendants’ motion contends that the Unions’ claims about the lack of

presidential authority are meritless for a variety of reasons. ( See, e.g., Defs.’ Mem. at

18 (“Contrary to Plaintiffs’ insistence that the orders are an unlawful exercise of

Presidential power, they fall well within the President’s authority.”); id. at 19

(“[S]ection 7117 of the Statute permits the government to pull a subject out of the

bargaining process by issuing a government-wide rule that creates a regime inconsistent

with bargaining.” (internal quotation marks and citation omitted)).) Defendants also

raise threshold questions about whether this Court has subject-matter jurisdiction to

hear these claims, given that Congress has created a scheme that designates the FLRA

and the MSPB as the first steps for adjudicating federal labor claims (see id. at 17), and

Defendants also question whether the Unions’ claims are prudentially ripe (see id. at

18). This Court held a hearing regarding the parties’ cross -motions on July 25, 2018.

(See Hr’g Tr., ECF No. 56.)

III. APPLICABLE LEGAL STANDARDS

“The President’s authority to act, as with the exercise of any governmental

power, ‘must stem either from an act of Congress or from the Constitution itself[,]’” or

from a combination of the two. Medellin v. Texas, 552 U.S. 491, 523 (2008) (quoting

Youngstown, 343 U.S. at 585). Thus, when assessing whether the President has acted

beyond the bounds of his legal authority, a court may at times have to consider both the

authority that congressional statutes have conferred upon him and the inherent authority

27 that the Constitution assigns to the President. See, e.g., Dames & Moore v. Regan, 453

U.S. 654, 675–82 (1981) (considering both aspects of the President’s power). The

inquiries that are required to determine the extent of the President’s statutory and

constitutional authority differ substantially, but it is worth noting that a court need not

assess the scope of the President’s constitutional authority to take a particular action

unless the President has specifically asserted that authority in the context of the given

dispute. See Am. Fed’n of Labor and Congress of Indus. Orgs. v. Kahn , 618 F.2d 784,

787 (D.C. Cir. 1979) (en banc). Hence, it is possible for a court to conclude that the

President has acted ultra vires without concluding that the President has violated the

constitutional separation of powers. See Dalton v. Specter, 511 U.S. 462, 472 (1994)

(“Our cases do not support the proposition that every action by the President, or by

another executive official, in excess of his statutory authority is ipso facto in violation

of the Constitution. On the contrary, we have often distinguished between claims of

constitutional violations and claims that an official has acted in excess of his statutory

authority.”).

Evaluating whether the President (or one of his subordinates) has acted in excess

of his statutory authority typically presents “a difficult problem of statutory

interpretation.” Kahn, 618 F.2d at 787. To solve such a puzzle, a court must analyze

the organic statute that supposedly confers statutory authority upon the President,

assess the scope of a given executive order, and check for inconsistencies between the

statute and the executive order. See id. at 792–94. It must take these three steps

because there are two independent ways that the President may exceed the scope of his

statutory authority in issuing these orders. On the one hand, it is possible that no

28 statute has ever supplied the President with an explicit or implicit delegation of

statutory authority. See, e.g., Youngstown, 343 U.S. at 585–86. And on the other, even

if the President has the authority to act in a certain field, the President nevertheless acts

in excess of his statutory authority if the orders that he issues conflict with a federal

statute. See Chamber of Commerce of U.S. v. Reich, 74 F.3d 1322, 1332 (D.C. Cir.

1996).

If the President asserts his inherent constitutional authority to take a particular

challenged action, the court’s analysis shifts to the well-known tripartite framework

spelled out in Justice Robert Jackson’s Youngstown concurrence. “When the President

acts pursuant to an express or implied authorization of Congress” in a manner that is

consistent with the will of Congress, “his [overall] authority is at its ma ximum, for it

includes all that he possesses in his own right plus all that Congress can delegate.”

Youngstown, 343 U.S. at 635 (Jackson, J., concurring). In such a situation, the

President’s action is “supported by the strongest of presumptions and the widest latitude

of judicial interpretation, and the burden of persuasion would rest heavil y upon any who

might attack it.” Id. at 637. And, “[w]hen the President acts in absence of either a

congressional grant or denial of authority, he can only rely upon his own independent

powers, but there is a zone of twilight in which he and Congress may have concurrent

authority, or in which its distribution is uncertain.” Id. In these uncertain waters,

“‘congressional inertia, indifference or quiescence m ay’ invite the exercise of executive

power.” Zivotofsky ex rel. Zivotofsky v. Kerry, 135 S. Ct. 2076, 2084 (2015) (quoting

Youngstown, 343 U.S. at 637 (Jackson, J., concurring)). Finally, “[w]hen the President

takes measures incompatible with the expressed or implied will of Congress, his power

29 is at its lowest ebb, for then he can rely only upon his own constitutional powers minus

any constitutional powers of Congress over the matter.” Youngstown, 343 U.S. at 637

(Jackson, J., concurring). In the latter circumstance, sustaining such an exercise of

“exclusive Presidential control” essentially requires a court to “disabl[e] the Congress

from acting upon the subject[,]” id. at 637–38, and a court may affirm such a claim to

power only by holding that a given action is “within [the President’s] domain and

beyond control by Congress[,]” id. at 640.

In short, like an ultra vires claim, a constitutional separation of powers claim

requires the court to analyze what statutory authority, if any, the President possesses in

relation to a challenged action. See, e.g., Medellin, 552 U.S. at 529–30. After

evaluating the scope of the President’s statutory authority, the court must consider the

scope of the President’s inherent authority to act, looking to “the Constitution’s text

and structure, as well as precedent and history bearing on the question [,]” to determine

what acts the President’s inherent authority encompasses. Zivotofsky, 135 S. Ct. at

2084.

One final note, in regard to how these analytic frameworks function at the

motion for summary judgment stage, is useful. The familiar standard for deciding

motions for summary judgment under the Federal Rules of Civil Procedure dictates that

if a “movant shows that there is no genuine dispute as to any material fact and the

movant is entitled to judgment as a matter of law[,]” then a court must grant summary

judgment in his favor. Fed. R. Civ. P. 56(a). Of course, in the context of ultra vires

and constitutional separation of powers claims, there are no questions of fact, because

whether or not a statute or the Constitution grants the President the power to act in a

30 certain way is a pure question of law. See, e.g., Zivotofsky, 135 S. Ct. at 2083–84

(prescribing de novo review); Chamber of Commerce of U.S., 74 F.3d at 1332–39

(conducting a de novo review). The same can be said of any questions of interpretation

that a federal court may have to answer in parsing out the meaning of any re levant

statutes or the pertinent provisions of a challenged executive order. See Bldg. &

Constr. Trade Dep’t, v. Allbaugh, 295 F.3d 28, 32–36 (D.C. Cir. 2002).

IV. ANALYSIS

The circumstances presented in the instant case—i.e., where the Unions have

challenged the President’s authority to issue certain executive orders regarding federal

labor-management relations on a variety of grounds, and where the President maintains

that he has both the statutory and constitutional authority to direct the manner of

executive agencies’ collective bargaining negotiations and other related matters but

that, in any event, this Court cannot and should not address the Unions’ claims —present

complicated legal questions that require the application of myriad legal precedents and

more than one analytical framework. The lengthy analysis below begins with the

threshold issues concerning this Court’s subject-matter jurisdiction and the ripeness of

the Unions’ claims, and the Court concludes that the claims at issue here are not the

types of claims that Congress intended to be funneled to the FLRA through the

FSLMRS’s administrative review scheme, nor are they unfit for judicial review at this

time. (See Part IV.A. & Part IV.B, infra.)

The Court then proceeds to tackle the merits of the claims presented in the

Unions’ consolidated complaints. It finds that the President has the constitutional and

statutory authority to issue executive orders that carry the force of law regarding federal

31 labor-management relations, including collective bargaining (see Part IV.C, infra), but

that any such orders cannot impermissibly infringe upon the right to collective

bargaining that is enshrined in the FSLMRS (see Part IV.D, infra). And because many

of the executive order provisions that the Unions challenge here have that effect, this

Court concludes that the President has overstepped his bounds. ( See id.)

Specifically, on their face, the Order provisions concerning matters such as the

reduction of the availability of and support for official time activities, see Exec. Order

No. 13,837 § 4, and the specific prohibitions against bargaining over section

7106(b)(1)’s permissive matters, see Exec. Order No. 13,836 § 6, or the unilateral

narrowing of any negotiated grievance procedures, see Exec. Order No. 13,839 § 4(a),

dramatically decrease the scope of the right to bargain collectively, because, in the

FSLMRS, Congress clearly intended for agencies and unions to engage in a broad and

meaningful negotiation over nearly every “condition of employment.” Likewise, the

Orders’ requirements, such as the directive that agencies should “ordinarily” seek to

conclude collective bargaining negotiations within five to seven months, Exec. Order

No. 13,836 § 5(a), or should limit the applicability of grievance procedures “[w]henever

reasonable[,]” Exec. Order No. 13,839 § 3, effectively instruct federal agencies and

executive departments to approach collective bargaining in a manner that clearly runs

counter to the FSLMRS’s expectation of good-faith conduct on the part of negotiating

parties.

In this Court’s considered judgment, the President is without statutory authority

to promulgate directives that reduce the scope of the statutory right to bargain

collectively that Congress enacted in the FSLMRS; and, indeed, there appears to be no

32 dispute that the President does not have the constitutional authority to override

Congress’s policy choice (see Defs.’ Reply at 30–31). Thus, the only challenged

provisions of Executive Orders 13,836, 13,837, or 13,839 that can stand are those that

neither contribute to a reduction in the scope of the collective bargaini ng that Congress

has envisioned nor impede the ability of agencies and executive departments to engage

in the kind of good-faith bargaining over conditions of federal employment that

Congress has required. (See Part IV.E., infra.)

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

“Federal courts are courts of limited jurisdiction[,]” meaning that “[t]hey possess

only that power authorized by [the] Constitution and statute.” Kokkonen v. Guardian

Life Ins. Co. of Am., 511 U.S. 375, 377 (1994). It is well established that, “[w]ithin

constitutional bounds, Congress decides what cases the federal courts have jurisdiction

to consider.” Bowles v. Russell, 551 U.S. 205, 212 (2007); see also U.S. Const. art. III.,

§ 1. Therefore, so long as Congress has provided a federal dis trict court with an

“applicable jurisdictional grant[,]” that court has the authority to hear any case that falls

within that grant of jurisdiction. Jarkesy v. Secs. Exch. Comm’n, 803 F.3d 9, 15 (D.C.

Cir. 2015); see also, e.g., 28 U.S.C. § 1331 (authorizing federal question jurisdiction);

id. § 1332 (authorizing diversity jurisdiction); id. § 1367 (authorizing supplemental

jurisdiction).

Of course, because Congress has the power to control the jurisdiction of federal

district courts, it may also choose to withhold jurisdiction, by “channeling” certain

types of claims through alternative review mechanisms. See Elgin v. Dep’t of the

Treasury, 567 U.S. 1, 9 (2012); accord Thunder Basin Coal Co. v. Reich, 510 U.S. 200,

33 207 (1994). In one such relatively common circumstance, Congress establishes a

“statutory scheme of administrative review followed by judicial review in a federal

appellate court[.]” Elgin, 567 U.S. at 9. It is also clear beyond cavil that when

Congress erects a statutory scheme of this nature, it “implicitly preclude[s] district

court jurisdiction over the claims” to which that statutory scheme applies. Arch Coal,

Inc. v. Acosta, 888 F.3d 493, 496 (D.C. Cir. 2018); see also Jarkesy, 803 F.3d at 15

(explaining that such schemes typically preclude initial judicial review by district

courts because “it is ordinarily supposed that Congress intended that procedure to be

the exclusive means of obtaining judicial review in those cases to which it applies”

(internal quotation marks and citation omitted)).

Defendants here insist that the administrative review schemes that appear in the

FSLMRS and CSRA channel the Unions’ claims to the FLRA or MSPB for resolution,

and thus, this Court has no subject-matter jurisdiction to resolve the instant dispute.

(See Defs.’ Mem. at 32–33.) To analyze whether a statutory scheme of review does, in

fact, implicitly strip away a district court’s power to hear a claim that it would

otherwise have the authority to hear, courts apply the two -step inquiry that the Supreme

Court laid out in Thunder Basin Coal Co. v. Reich. See Jarkesy, 803 F.3d at 15.

“Under Thunder Basin’s framework, courts determine that Congress intended that a

litigant proceed exclusively through a statutory scheme of administrative and judicial

review when (i) such intent is ‘fairly discernible in the statutory scheme,’ and (ii) the

litigant’s claims are ‘of the type Congress intended to be reviewed within [the] statutory

structure.’” Id. (quoting Thunder Basin, 510 U.S. at 207, 212); see also Elgin, 567 U.S.

at 10, 15 (applying this framework); Free Enter. Fund v. Pub. Co. Accounting

34 Oversight Bd., 561 U.S. 477, 489 (2010) (same). Both elements must be present to

support the conclusion that Congress has implicitly denied district court jurisdiction;

however, as explained below, only the first of these two prongs is satisfied under the

circumstances presented here.

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

It is well settled that the FSLMRS evinces a congressional intent to channel the

resolution of at least some claims to the administrative agency that Congress created to

address certain federal labor-management issues (the FLRA). See 5 U.S.C. § 7105(a).

The D.C. Circuit has acknowledged that, “[w]ith the FSLMRS, . . . Congress passed an

enormously complicated and subtle scheme to govern employee relations in the federal

sector, including the authorization of collective bargaining[,]” from which it reasoned

that “[i]t follows, then, that [a plaintiff] may not circumvent that structure by seeking

judicial review outside the CSRA’s procedures.” Am. Fed’n of Gov’t Emps. v. Sec’y of

the Air Force, 716 F.3d 633, 636 (D.C. Cir. 2013) (internal quotation marks and

citations omitted). Moreover, the procedures for judicial review that are set forth in the

FSLMRS are detailed and specific, suggesting that Congress intended for those

procedures to be exclusive. See 5 U.S.C. § 7123(a) (providing a right of appeal to

“[a]ny person aggrieved by any final order of the Authority other than an order under”

section 7112 or section 7122 of the FSLMRS); id. § 7123(c) (outlining, e.g., the court

of appeals’ jurisdiction, the relief that may be granted, the standard of review, and

waiver rules); cf. Elgin, 567 U.S. at 11–12 (“Given the painstaking detail with which

the CSRA sets out the method for covered employees to obtain review of adverse

employment actions, it is fairly discernable that Congress intended to deny such

35 employees an additional avenue of review in district court.”).

Thus, it comes as no surprise that the D.C. Circuit has held that “the FSLMRS’s

remedial regime is exclusive[,]” Sec’y of the Air Force, 716 F.3d at 637 (emphasis

added), and that federal “[d]istrict courts do not have concurrent jurisdiction over

matters within the exclusive purview of the FLRA[,]” Am. Fed’n of Gov’t Emps., AFL-

CIO, Local 446 v. Loy, 367 F.3d 932, 935 (D.C. Cir. 2004)—i.e., those matters listed in

section 7105 of Title 5. In short, Congress intended for the “mine -run of cases”

involving the FSLMRS to come before the FLRA—not the federal district courts—

because “Congress create[d] procedures designed to permit agency expertise to be

brought to bear on particular problems[.]” Jarkesy, 803 F.3d at 16 (internal quotation

marks and citation omitted).

Similarly, when it enacted the other provisions of the CSRA, Congress

unquestionably “established a comprehensive system for reviewing personnel action

taken against federal employees.” Fausto, 484 U.S. at 455. Thus, the statute’s scheme

contains its own mechanisms for the resolution of disputes: it provides for

“administrative and judicial review of specified adverse employment actions[,]” Elgin,

567 U.S. at 5, including the removal or reduction in grade of an employee “for

unacceptable job performance” under Chapter 43 of the CSRA, and a system for the

review of “adverse action taken against employees . . . based on misconduct” under

Chapter 75 of the CSRA, Fausto, 484 U.S. at 445–46. “Given the painstaking detail

with which the CSRA sets out the method for covered employees to obtain review of

adverse employment actions, it is fairly discernible that Congress intended to deny such

employees an additional avenue of review in district court.” Elgin, 567 U.S. at 11–12.

36 The Unions’ Claims Are Not Of The Type That Congress Intended To Funnel Through The FLRA or CSRA Statutory Review Schemes

Of course, the administrative and judicial review schemes that Congress adopted

in the FSLMRS and CSRA are the exclusive path only with respect to the disputes to

which these schemes apply. Here, the Unions maintain that their claims are not “of the

type Congress intended to be reviewed within” the pertinent “statutory structure[s]” of

the FLRA or the CSRA. Thunder Basin, 510 U.S. at 212. (See, e.g., AFGE’s Reply at

9.) Fortunately, the D.C. Circuit spoke at great length in Jarkesy about how this type of

analysis should unfold. See 803 F.3d at 17.

But first, it is important to note at the outset that “[t]o unsettle the presumption

of initial administrative review—made apparent by the structure of the organic statute—

requires a strong countervailing rationale.” Id. (internal quotation marks and citation

omitted). According to the D.C. Circuit, such a rationale exists “‘if a finding of

preclusion could foreclose all meaningful judicial review; if the suit is wholly collateral

to a statute’s review provisions; and if the claims are outside the agency’s expertise.’”

Id. (quoting Free Enter., 561 U.S. at 489–90) (internal quotation marks omitted). These

three conditions do not “form three distinct inputs into a strict mathematical formula[,]”

but instead serve as “general guideposts useful for channeling the inquiry” at hand. Id.;

see also Arch Coal, 888 F.3d at 500 (reaffirming this holistic assessment). This Court

concludes that, on balance, these guideposts point toward the conclusion that Congress

did not intend to strip away the jurisdiction of the district courts to hear cases such as

this.

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

The first of these guidepoststhe availability of meaningful judicial

37 reviewrequires a court to assess whether a plaintiff will, “as a practical matter[ ,] be

able to obtain meaningful judicial review” if he is “not allowed to pursue [his] claims in

the District Court.” Thunder Basin, 510 U.S. at 213 (internal quotation marks and

citation omitted). To answer this question, courts have considered such fac tors as

whether or not the plaintiff would suffer serious harm by dint of undergoing the

administrative review process, see Free Enter., 561 U.S. at 490; whether the plaintiff

could obtain the evidence it needs through the administrative process, see, e.g., McNary

v. Haitian Refugee Ctr., Inc., 498 U.S. 479, 497 (1991); and whether an Article III court

will eventually have the opportunity to resolve the plaintiff’s claims at some point

during the administrative review scheme, see, e.g., Elgin, 567 U.S. at 17–18. With

respect to the FSLMRS, this Court finds that the prescribed scheme for judicial review

is such that the Unions will not be able to obtain meaningful judicial review of the

claims that they bring here, because the FLRA cannot hear cases of this nature, and as a

result, no court of appeals will have the opportunity to review the instant claims.

The scope of the FLRA’s authority is laid out in the FSLMRS, and as a general

matter, that agency can address and resolve particular issues of fact that arise under

that statute—such as an agency’s or union’s alleged violation of the statute’s

prescriptions in the context of a given labor-related dispute. See 5 U.S.C. § 7105.

Congress has specifically conferred upon the FLRA the power to issue orders th at

“require an agency or a labor organization to cease and desist from violations of” the

FSLMRS, and the FLRA can also “require [the agency] to take any remedial action [the

FLRA] considers appropriate to carry out the policies of [the FSLMRS]. ” Id.

§ 7105(g)(3). Congress has also specifically enumerated the FLRA’s “powers and

38 duties[,]” see id. § 7105(a)(1), (2), and has thus made crystal clear that the FLRA’s

authority extends only to the consideration of certain fact-specific inquiries pertaining

to federal labor-management relations, and not to general questions of law.

For example, the FLRA is authorized to “determine the appropriateness of units

for labor organization representation under [section 7112 of Title 5 of the United States

Code]”; to “supervise or conduct [the] elections” that labor organizations hold under

section 7111; and to “prescribe criteria” regarding such matters as “the granting of

national consultation rights under section 7113” or an alleged “compelling need for

agency rules and regulations under section 7117(b)[.]” See id. §§ 7105(a)(2)(A)–(D).

The agency can also “resolve[] issues relating to the duty to bargain in good faith under

section 7117(c)[,]” id. § 7105(a)(2)(E), and “conduct hearings and resolve complaints

of unfair labor practices under section 7118[,]” id. § 7105(a)(2)(G). What does not

appear in the statute is any authorization for the FLRA to address and resolve broad,

abstract questions of law regarding labor-management relations, such as whether a

systemic agency practice is unconstitutional. See, e.g., U.S. Dep’t of the Treasury, U.S.

Customs Serv. v. Fed. Labor Relations Auth., 43 F.3d 682, 689 n.9 (D.C. Cir. 1994)

(“[A] claim that the arbitration or FLRA procedures were unconstitutional would have

to be brought as a collateral challenge in the district court[.]”). And this omission is

remarkable, because it appears that Congress has authorized similar agencies to address

such abstract questions in other portions of the CSRA. See, e.g., 5 U.S.C. § 1204(f)

(empowering the MSPB to “review” any “rule or regulation” issued by the Office of

Personnel Management); see also Clark v. Office of Pers. Mgmt., 95 F.3d 1139, 1141

(Fed. Cir. 1996) (recognizing that the MSPB has this authority).

39 The FLRA itself has interpreted the FSLMRS to be a limited grant of authority in

this regard; indeed, that agency has consistently maintained that it “lack[s] jurisdiction”

to address claims that assail the general legality of agency conduct. Nat’l Treasury

Emps. Union, 60 F.L.R.A. 782, 783 (2005) (refusing to consider a challenge to the

legality of an OPM regulation); see also Am. Fed’n of Gov’t Emps. v. Fed. Labor

Relations Auth., 794 F.2d 1013, 1015 (5th Cir. 1986) (“We find no support . . . for

AFGE’s argument that the FLRA may rule on the legality or validity of a government -

wide OPM regulation.”); Am. Fed’n of Gov’t Emps., Local 4052, Council of Prison

Locals, 56 F.L.R.A. 414, 416–17 (2000) (same); cf. City of Arlington, Tex. v. Fed.

Commc’ns Comm’n, 569 U.S. 290, 307 (2013) (requiring courts to accord Chevron

deference to an agency’s interpretation of its jurisdiction). Thus, when parties have

asked the FLRA to rule in the abstract upon the validity of a rule that has some effect

within the realm of federal labor relations, the FLRA has stated that such challenges

should be brought in the “district court.” Am. Fed. Gov’t Emps., Local 4052, Council of

Prison Locals, 56 F.L.R.A. at 416 (citing to Nat’l Treasury Emps. Union v. Devine, 577

F. Supp. 738, 745 (D.D.C. 1983), aff’d, 733 F.2d 114 (D.C. Cir. 1984)).

This all matters because the claims that the Unions have brought in the instant

case are broad, facial attacks on the validity of the Orders and the President’s authority

to issue such directives; there are no fact-specific claims of unfair labor practices,

mishandling of employment-related grievances, or negotiability disputes. (See, e.g.,

NFFE’s Compl. ¶¶ 82–120.) As noted, nothing in the FSLMRS’s detailed statement of

“the powers and duties” of the FLRA even remotely “relates to passing judgment on

rules or regulations enacted by any other federal agency[,]” Am. Fed’n of Gov’t Emps.,

40 794 F.2d at 1015, much less adjudicating the validity of executive orders that the

President of the United States has issued, see, e.g., U.S. Office of Pers. Mgmt., 68

F.L.R.A. 1039, 1041 (2015) (holding that both “executive orders” and “regulations

having the force and effect of law” constitute “applicable law” under section 7106(b) of

the FSLMRS). Thus, to be clear, this Court concludes that Congress has intended to

funnel only certain types of labor-related disputes into the administrative review

scheme that the FSLMRS established—i.e., those arising out of specific negotiations or

unfair labor practices—and that it never intended for the broad ultra vires and

constitutional claims that the Unions have brought in this case to be resolved by the

FLRA. 5

Defendants’ contention that an avenue for meaningful judicial review of the

Unions’ claims nevertheless exists within the prescribed administrative review scheme,

because a court of appeals could still reach and resolve these claims under section 7123

of Title 5 of the United States Code despite the limited jurisdiction of the FLRA, is

clever, but ultimately unpersuasive. Defendants point to the FSLMRS’s statement that

5 A similar analysis would apply to any attempt to bring the claims in this case before the MSPB. It is well established that “[t]he jurisdiction of the [MSPB] is not plenary[,]” Schmittling v. Dep’t of the Army, 219 F.3d 1332, 1336 (Fed. Cir. 2000); rather, that agency has the authori ty to hear appeals only “from any action which is appealable to the Board und er any law, rule, or regulation[,]” 5 U.S.C. § 7701; see also Schmittling, 219 F.3d at 1336. The specific actions that the MSPB has jurisdiction over are laid out in Part 1201.3 of Title 5 of the Code of Federal Regulations, and, as relevant here, the MSPB has jurisdiction to hear specific and concrete cases. See 5 C.F.R. 1201.3 (explaining how the board of appeals has the jurisdiction to hear, for example, appeals relating to ad verse actions, terminations, performance-based actions, or a reduction in force that have a negative impact on individual employees). The CSRA makes MSPB jurisdiction over an appeal “dependent only on the nature of the employee and the employment action a t issue[,]” Elgin, 567 U.S. at 18, which means that the MSPB cannot have jurisdiction until a specific employee has been the object of some sort of employment action. Moreover, although the MSPB has some limited authority to invalidate rules issued by OPM, that authority only extends to those rules that would require employees to take prohibited personnel actions, as defined in section 2302(b) of Title 5 of the United States Code, see 5 U.S.C. § 1204(f), and does not expand to invalidating rules or executi ve orders that carry the force of law as a general matter, see, e.g., Zirbel, 87 M.S.P.R. 84, 86 (2000).

41 “‘any person aggrieved by any final order of the FLRA’”—including, presumably, an

order dismissing the complaint for lack of jurisdiction—“may seek judicial review of

the order in the Court of Appeals for the D.C. Circuit[.]” (Defs.’ Mem at 34 –35

(alterations omitted) (quoting 5 U.S.C. § 7123(a)).) Defendants further observe that the

federal courts of appeals have “jurisdiction of the proceeding[s] and of the question[s]

determined” by the FLRA. (Defs.’ Reply at 16 (emphasis added) (quoting 5 U.S.C.

§ 7123(c)).) And Defendants read this language to authorize the court of appeals to

address any ultra vires or constitutional challenges that the Unions might bring to assail

the President’s executive orders in the context of an FLRA proceeding. ( See id. at 16.)

Of course, the trouble with this argument lies in the fact that the FSLMRS does not give

the FLRA the power to adjudicate such challenges (i.e., suits filed against the President

claiming that executive orders are invalid) in the first place.

To understand why this is so, it is important to begin by recognizing that the

FSLMRS’s statutory scheme plainly makes the court of appeals’ jurisdiction to review

matters brought before the FLRA entirely derivative of the FLRA’s jurisdiction. By its

terms, the “judicial review” that is provided for at section 7123(a) of Title 5 of the

United States Code extends only to “the proceeding” that took place before the FLRA

“and the question determined therein[,]” 5 U.S.C. § 7123(c)—language that, at the very

least, suggests that Congress intended for the court of appeals to review only those

matters that the FLRA could have considered. Furthermore, section 7123(c) makes

clear that, as a result of its review, the court of appeals may “grant any temporary relief

. . . it considers just and proper,” and its final decree must be crafted relative to the

FLRA’s decision: it can affirm (and enforce), modify (and enforce as so modified), or

42 “set[] aside in whole or in part the order of the [FLRA].” Id. The FSLMRS says

nothing that would authorize the court of appeals to hear matters that are beyond the

scope of the FLRA’s jurisdiction through this administrative review scheme, and lest

there be any doubt that Congress intended for the court of appeals to confine its review

to the FLRA’s own actual (or potential) determinations made in the context of

proceedings that properly pertain to alleged unfair labor practices, employment-related

grievances, negotiability disputes, and the like, section 7123(c) also imposes a series of

procedural restrictions that clearly indicate that the scope of the court of appeals’

review is no more and no less than the facts that the FLRA has already considered,

should have considered, or can be compelled to consider, in order to resolve the

dispute. See id. 6

Thus, the fact that the Unions here have sued the President of the United States

and the Office of Personnel Management to challenge the validity of the President’s

Orders—i.e., a dispute that is manifestly not within the purview of the FLRA—matters,

and, in this Court’s view, this fact ultimately disposes of the question of whether the

court of appeals can address the Unions’ claims under section 7123. To be sure, with

respect to similar channeling statutes, binding precedents indicate that a court of

appeals can reach and resolve a plaintiff’s claims notwithstanding an administrative

agency’s lack of authority to do so, see, e.g., Elgin, 567 U.S. at 18; Thunder Basin, 510

6 See 5 U.S.C. § 7123(c) (“No objection that has not been urged before the [FLRA], or its designee, shall be considered by the court, unless the fail ure or neglect to urge the objection is excused because of extraordinary circumstances. The findings of the [FLRA] with respect to questions of fact, if supported by substantial evidence on the record considered as a whole, shall be conclusive. If any person applies to the court for leave to adduce additional evidence and shows to the satisfaction of the court that the additional evidence is material and that there were reasonable grounds for the failure to adduce the evidence in the hearing before the [FLRA], or its designee, the court may order the additional evidence to be taken before the [FLRA], or its designee, and to be made a part of the record.”).

43 U.S. at 215, but in these cases, it was clear that the unadjudicated claims arose in the

context of the kind of proceeding that Congress had expressly funneled into the

administrative review process. In such a circumstance, the plaintiff could be said to

retain the prospect of meaningful judicial review of their claims , because the claim was

part of a proceeding that was otherwise properly before the agency. See Elgin, 567 U.S.

at 18.

In the instant context, however, just as in American Federation of Government

Employees, AFL-CIO, Local 446 v. Nicholson, 475 F.3d 341 (D.C. Cir. 2007), no such

meaningful opportunity exists. Nicholson involved a union’s challenge to the Secretary

of Veterans Affairs’ determination that a particular matter was not su bject to collective

bargaining—a determination that the agency was purportedly authorized to make under

section 7422 of Title 38 of the United States Code. See 475 F.3d at 345. In considering

the scope of the court of appeals’ authority to review that dispute pursuant to section

7123 of Title 5, the D.C. Circuit held that, because “[t]he FLRA lacked authority to

review” this decision of the Department of Veterans Affairs, see id. at 347, the “D.C.

Circuit could not provide [judicial] review” of the FLRA’s dismissal of that matter

under section 7123 of Title 5, id. at 348. In this Court’s view, that analysis not only

firmly establishes the derivative nature of the D.C. Circuit’s judicial review, it also

resolves the judicial review question presented here. The FLRA lacks jurisdiction over

disputes that do not involve an unfair labor practice, grievance, negotiability dispute, or

the like, as explained above, and that necessarily means that the court of appeals lacks

the ability under section 7123 to decide any claim that arises out of a challenge that the

FLRA did not have jurisdiction to hear, such as a challenge to the President’s executive

44 orders. Cf. U.S. Dep’t of the Air Force v. Fed. Labor Relations Auth., 952 F.2d 446,

453 (D.C. Cir. 1991) (“Any challenge to the legality of the OPM regulation under

§ 4(b) of the Portal-to-Portal Act must be brought in an appropriate forum.”); Am.

Fed’n of Gov’t Emps., 794 F.2d at 1015 (directing any challenge to a rule or regulation

to proceed through the district courts—not the FLRA).

In this regard, then, Defendants’ reliance on Elgin v. Department of the Treasury

(see Defs.’ Reply at 16–18), is misplaced. The plaintiffs in Elgin were “former federal

competitive service employees who failed” to register for the Selective Service and

were discharged from their jobs with federal agencies as a result. 567 U.S. at 6 –7. One

of the plaintiffs (Elgin) appealed his removal to the MSPB, and claimed that requiring

male citizens between the ages of 18 and 26 to register for the Selective Service was

unconstitutional. See id. at 7. The ALJ who heard Elgin’s claim held that the agency

“lack[ed] authority to determine the constitutionality of a statute[,]” id. (internal

quotation marks and citation omitted), and Elgin then proceeded to file a suit in district

court (instead of appealing the ALJ’s determination to the full MSPB or the Federal

Circuit, which is the court of appeals authorized to hear such appeals), see id. Before

the Supreme Court, Elgin explained that he had filed an action in district court because

the MSPB did not have the authority to decide certain constitutional claims, and that as

a result, the Federal Circuit also could not hear such claims, effectively foreclosing any

prospect of meaningful judicial review. See id. at 16–17. But the Supreme Court

sidestepped the issue of whether the MSPB was actually capable of deciding a

constitutional claim, see id. at 17, and reasoned instead that, even if the MSPB could

not hear Elgin’s claims, the Federal Circuit could do so pursuant to the statutory

45 administrative review scheme, see id. at 18. The Supreme Court emphasized that the

Federal Circuit had only ever “questioned its jurisdiction when an employee appeals

from a type of adverse action over which the MSPB lacked jurisdiction [,]” and that so

long as the MSPB had jurisdiction “over [the] appeal”—because the case involved the

type of “employee and [] employment action” that the MSPB could handle—it did not

matter that the MSPB may have lacked the authority to rule on a particular claim. Id.

(emphasis added).

Jarkesy and Thunder Basin speak to the same principle. In both cases, federal

agencies had charged, or would soon charge, the plaintiffs with violating laws and

regulations that the agencies administered. See Thunder Basin, 510 U.S. at 204 (failure

to post a notice containing information regarding miners’ representatives); Jarkesy, 803

F.3d at 13 (securities law violations). There was also no question in Jarkesy or

Thunder Basin that the Securities Exchange Commission or the Federal Mine Safety and

Health Review Commission, respectively, had the power to adjudicate these alleged

violations as a general matter. See Thunder Basin, 510 U.S. at 205; Jarkesy, 803 F.3d

at 19. And both cases involved plaintiffs who challenged the agencies’ ability to rule

upon certain statutory and constitutional claims in the context of cases involving

government action that the agencies could otherwise legitimately consider. See

Thunder Basin, 510 U.S. at 213–15; Jarkesy 803 F.3d at 18–19. Under those

circumstances, both the Supreme Court and the D.C. Circuit conclu ded that, even if for

some reason these agencies could not adjudicate the particular claims in the proceeding

before them, the courts of appeals were “fully competent” to do so on review of the

agency’s proceedings. Jarkesy, 803 F.3d at 19; see also Thunder Basin, 510 U.S. at 215

46 (“[P]etitioner’s statutory and constitutional claims [] can be meaningfully addressed in

the Court of Appeals.”).

These situations differ significantly from the one presented here. To recap, in

Elgin, Jarkesy, and Thunder Basin, the agencies had jurisdiction over the underlying

matters at issue: the MSPB had jurisdiction over cases concerning the removal of

federal employees; the SEC had jurisdiction over cases concerning the violation of

securities laws; and the FMSHRC had jurisdiction over cases concerning matters arising

under the Mine Act. In addition, the challenged conduct was generally of the type that

could be addressed by the relevant agencies; therefore, the courts of appeals had no

reason to “question[]” their own jurisdiction to review the underlying proceedings.

Elgin, 567 U.S. at 18. By contrast, the instant case does not involve such a matter—

there is no alleged unfair labor practice, grievance, or negotiability dispute over which

the FLRA could otherwise exercise jurisdiction. The FLRA has no jurisdiction to hear

any part of this case—and does not just lack the authority to hear the particular claims

that the Unions have raised—so a court of appeals that is limited to reviewing “the

proceeding and the question [the FLRA] determined therein” under section 7123(c) of

Title 5 of the United States Code could not possibly reach the Unions’ challenge to the

President’s Orders through the statutory administrative-judicial review process. 7

7 The same is true of the Federal Circuit’s jurisdiction to review claims that arise in cases brought before the MSPB. In any case “brought under 5 U.S.C. § 7701, ‘the scope of the subj ect matter jurisdiction of the Federal Circuit is identical to the scope of the jurisdiction of the Board.’” Schmittling, 219 F.3d at 1337 (alterations omitted) (quoting Rosano v. Dep’t of the Navy, 699 F.2d 1315, 1318 (Fed. Cir. 1983)). Thus, “[i]f the [MSPB] lacks jurisdiction” over a matter, the Federal Circuit is “without authority to hear the merits of the appeal.” Id. Here, the MSPB could not possibly hear the case that the Unions have advanced—since there is no employment action or employee to speak of—and as a result, the Federal Circuit could not review any of the claims that the Union s have brought in this case.

47 The practical effect of this analysis is that all Article III judicial review of the

Unions’ contention that the President lacks the authority to issue the challenged

executive orders would be foreclosed if the doors of the district court are shut , and that

result counsels against concluding that Congress meant to preclude the district court

from exercising subject-matter jurisdiction over the claims that the Unions have brought

in this case. See Free Enter., 561 U.S. at 489 (“[W]e presume that Congress does not

intend to limit jurisdiction if ‘a finding of preclusion could foreclose all meaningful

judicial review[.]’” (citation omitted)); Nicholson, 475 F.3d at 348 (“[B]ecause the D.C.

Circuit could not provide that review on a petition for the review of the FLRA decision

dismissing the [unfair labor practice] complaint, [the case law] does not provide a basis

for the district court dismissing this case for lack of jurisdiction.”); see also Chamber of

Commerce of U.S., 74 F.3d at 1328 (indicating that courts may normally review ultra

vires claims unless Congress has precluded all non-statutory judicial review of the

President’s actions); Ralls Corp. v. Comm. on Foreign Inv. in the U.S., 926 F. Supp. 2d

71, 86 (D.D.C. 2013) (suggesting that congressional preclusion of jurisdiction over

ultra vires claims must be “express”), rev’d on other grounds, 758 F.3d 296 (D.C. Cir.

2014).

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

Not only do the FSLMRS and CSRA administrative-judicial review schemes

foreclose meaningful review of the challenge that the Unions seek to make here, it is

also clear that the Unions’ claims themselves are “‘wholly collateral’ to the” statutory -

review scheme at issue. Jarkesy, 803 F.3d at 22.

In determining whether a lawsuit is wholly collateral to a statute’s scheme of

48 review, the Supreme Court and the D.C. Circuit have differentiated between those

claims that “arise ‘outside’ the [agency’s] administrative enforcement scheme” and

those claims that “arise from actions the [administrative agency] took in the course of

that scheme.” Id. at 23. Claims that are deemed to have arisen outside the agency’s

administrative enforcement scheme are those that are essentially divorced from any

action that the agency has taken, or any determination that it has made, in the context of

agency proceedings. See, e.g., Free Enter., 561 U.S. at 490 (challenging the very

existence of an administrative agency, not any proceeding before that agency); Nat’l

Mining Ass’n v. Dep’t of the Labor, 292 F.3d 849, 855 (D.C. Cir. 2002) (per curiam)

(challenging a regulation passed through the notice-and-comment rulemaking process as

impermissibly retroactive). By contrast, legal claims that arise from actions taken by an

administrative agency (and are thus not properly considered wholly collateral) include

attacks on the initiation of administrative proceedings involving the plaintiff, or

challenges to specific decisions that the agency made in the cou rse of those

proceedings, or any other attempt to use a federal lawsuit as “the ‘vehicle by which’

[the party] seeks to prevail in his administrative proceeding.” Jarkesy, 803 F.3d at 23

(quoting Elgin, 567 U.S. at 22). In essence, courts seek to determine whether the

claims brought in the lawsuit would impact ongoing administrative proceedings such

that the plaintiff can be said to have made “an end run around” the applicable statutory

review scheme “by going directly to district court.” Sturm, Ruger & Co. v. Chao, 300

F.3d 867, 876 (D.C. Cir. 2002).

By these standards, the Unions’ claims are wholly collateral to any

administrative action. Again, the Unions have sued the President and OPM, and the

49 gravamen of their consolidated action is that the three disputed executive orders in this

case are ultra vires and unconstitutional. As explained above, the Unions’ claims do

not relate specifically to any alleged unfair labor practice, negotiability dispute, or

grievance proceeding. (See Part IV.A.2.a., supra.) Consequently, these claims are not

“inextricably intertwined with the conduct of” an enforcement proceeding or appeal that

the FLRA or MSPB may “institute and resolve as an initial matter[.]” Jarkesy, 803

F.3d at 23 (internal quotation marks and citation omitted); see also Free Enter., 561

U.S. at 490 (explaining that a “general challenge” to the existence of an agency “is

‘collateral’ to any [agency] orders or rules from which review might be sought.”); cf.

McNary, 498 U.S. at 491–92 (concluding that a challenge to the agency’s policies and

procedures, rather than claims about any individual adjudication, were wholly collateral

to a specific immigration proceeding).

The fact that the D.C. Circuit has previously treated analogous claims as

“collateral”—and has allowed them to be brought in the federal district courts —is

significant. In National Mining Association v. Department of Labor, the plaintiffs

sought to challenge the validity of a Department of Labor regulation that revised the

“rules governing the adjudication of miners’ claims under” the Black Lung Benefits Act

(“BLBA”). 292 F.3d at 854. The BLBA contained a statutory-review scheme that

provided that “a person ‘adversely affected or aggrieved by a final order of the Board

may obtain review of that order in’” the courts of appeals. Id. at 856 (quoting 33

U.S.C. § 921(c)). The D.C. Circuit pointed out that the “rule” that the plaintiffs sought

to challenge could not properly be understood as an “order,” given the distinct mean ing

of those terms in the administrative law context. See id.; compare 5 U.S.C. § 551(4)

50 (defining “rule”) with 5 U.S.C. § 551(6) (defining “order”). So, while Congress may

have decided that a plaintiff should obtain judicial review of an “order” through the

statutory-review scheme, it had not specified how a plaintiff ought to challenge a rule

of the agency, and thus, the panel concluded that “persons seeking such review would

be directed by the APA to go to district court.” Nat’l Mining, 292 F.3d at 856; see also

id. (concluding that such a pre-enforcement “broad-scale attack” on an agency rule falls

outside the relevant statutory-review scheme). Furthermore, and notably, the panel

distinguished Thunder Basin, and thereby indicated that even if a pre-enforcement

challenge to an inevitable adjudicatory proceeding is not wholly collateral to the

administrative process, a pre-enforcement challenge to a “rule” can constitute a wholly

collateral claim. See id. at 857; see also Nat’l Treasury Emps. Union v. Devine, 733

F.2d 114, 117 n.8 (D.C. Cir. 1984) (“It is quite different to suggest, as appellant does,

that a detailed scheme of administrative adjudication impliedly precludes

preenforcement judicial review of rules.”). 8

The D.C. Circuit has since affirmed this core holding of National Mining, see,

e.g., Arch Coal, 888 F.3d at 500–01; Sturm, Ruger & Co., 300 F.3d at 875–76, and the

cases that have followed have identified three aspects of that decision that were

especially relevant to the D.C. Circuit’s analysis. First, National Mining involved a

“direct attack on the validity of a ‘formal regulation,’ issued pursuant to ‘notice -and-

comment’ rulemaking” rather than an “attack on an enforcement policy[.]” Sturm,

8 Thunder Basin had suggested that a pre-enforcement challenge in the context of an administrative adjudication is not wholly collateral, but National Mining emphasized that Thunder Basin “did not involve a regulation, which is typically treated different [ly] from an adjudication.” 292 F.3d at 857. It is clear to this Court that the challenge to the President’s Orders that the Unions bring here is more analogous to the challenge to National Mining’s “rule” than Thunder Basin’s attack on the pre- enforcement adjudicative policies of an agency.

51 Ruger & Co., 300 F.3d at 875 (quoting Nat’l Mining, 292 F.3d at 858). Second, the

challenge to the regulations at issue in National Mining “require[d] analysis of ‘all of

the regulations together as well as the entire rulemaking process’” and “such an

analysis ‘would not be feasible in individual adjudications dealing with particular

regulatory provisions.’” Id. at 876 (quoting Nat’l Mining, 292 F.3d at 858–59). Last,

“and most important, National Mining Association was not a case in which the ‘plaintiff

sought to short-circuit the administrative process’ through the vehicle of a district court

complaint.” Id.

All three of these circumstances are present. The Unions have brought a

challenge to the “rules” the President has adopted in the Orders, rather than any specific

“order” of the FLRA or the MSPB. Cf. Nat’l Mining, 292 F.3d at 856; see also 5 U.S.C.

§ 7123 (permitting a challenge to an “order” of the FLRA); id. § 7703(a)(1) (permitting

a challenge to an “order or decision” of the MSPB). Moreover, although the Orders are

not regulations authored through notice-and-comment rulemaking, the President’s

directives are similar for all intents and purposes, because they carry the force of law,

and “alter the rights or interests of parties.” Arch Coal, 888 F.3d at 501. (See Part

IV.C., infra.) And, far from seeking to upend any particular agency determination or

adjudication, the Unions have claimed that the President’s new rules are ultra vires and

violate federal law or the Constitution across the board. Cf. Nat’l Mining, 292 F.3d at

856. It is also noteworthy that the resolution of several of the Unions’ claims requires

an evaluation of existing laws and regulations in mass, as well as a determination of the

extent to which those statutes and regulations authorize the President’s action in this

case (see Parts III.C & D, infra)—analyses that “would not be feasible in individual

52 adjudications dealing with particular regulatory provisions[,]” Nat’l Mining, 292 F.3d at

858.

Thus, Defendants are mistaken when they righteously maintain that Congress

intended for the Unions to be forced to jam the square peg of these broad ultra vires

and constitutional claims into the round hole of the administrative -judicial review

scheme that was crafted specifically for labor representatives and federal managers to

utilize as they hammer out particular collective bargaining agreements or engage in

other, similar fact-bound negotiations. (See, e.g., Defs.’ Reply at 14–15.) Pointing to

American Federation of Government Employees v. Secretary of the Air Force, 716 F.3d

633 (D.C. Cir. 2013), Defendants insist that the Unions must challenge the President’s

Orders in the context of a “negotiability appeal, arbitration, or an unfair labor practice

charge[,]” rather than launching a direct attack in federal district court. (Defs.’ Reply

at 14.) But the Secretary of the Air Force case does not require the Unions to follow

that approach under the circumstances presented here.

Secretary of the Air Force involved a challenge to Air Force regulations that

required certain civilian workers within the Air Force “to wear military uniforms while

performing civilian duties.” 716 F.3d at 635. The plaintiff unions filed a lawsuit

against the Air Force under section 706 of the Administrative Procedure Act, alleging

that the agency had acted arbitrarily and capriciously, contrary to law, and in excess of

its statutory authority, see id., but the D.C. Circuit ruled that those claims improperly

circumvented the FSLMRS and CSRA’s statutory review schemes, primarily because

the plaintiffs had myriad ways of obtaining the relief they sought through the

administrative process: they could attempt to negotiate with the Air Force about its

53 dress code policy; file a grievance claiming that the dress code violated the employees’

rights under the relevant statutory scheme; or, if any current collective bargaining

agreement contradicted the policy, file an unfair labor charge, see id. at 637–38.

Here, by contrast, the Unions have brought ultra vires and constitutional claims

against the President and OPM, and not against any particular agency, so a negotiability

appeal, arbitration, or unfair labor practice charge brought in the context of a

proceeding before the FLRA will not generate the relief the Unions seek. That is, in

contrast to Secretary of the Air Force and that case’s predecessors, there is not a

“close[] connection between the relief sought in th[is] judicial action and that available

in the administrative process.” Fornaro v. James, 416 F.3d 63, 68 (D.C. Cir. 2005).

This distinction is sufficient to place the Unions’ claims outside the boundaries of the

D.C. Circuit’s warning that, where Congress has imposed a channeling administrative -

judicial review scheme, plaintiffs should not be permitted to “short-circuit the

administrative process through the vehicle of a district court complaint.” Sturm, Ruger

& Co., 300 F.3d at 875 (internal quotation marks and citation omitted); see also Free

Enter., 561 U.S. at 490 (“[P]etitioners object to the Board’s existence, not to any of its

auditing standards.”); McNary, 498 U.S. at 497–98 (acknowledging that while judicial

review of individual determinations may be barred, a broad pattern or practice claim is

not); Nicholson, 475 F.3d at 348 (holding that “because the legality of the disputed

§ 7422 Decision is expressly outside the FLRA’s purview” the district court could hear

that case (emphasis added)).

Undaunted, Defendants suggest that the Unions here must reformulate their

claims to contend that, because of the President’s Orders, a particular agency has

54 violated the FSLMRS; or a particular agency must negotiate on a certain matter with

the union; or a particular agency has committed an unfair labor practice, such that the

FLRA or MSPB can address the Unions’ contentions, or else they simply cannot “‘raise

the[se] claim[s] at all.’” (Defs.’ Reply at 14 (quoting Sec’y of the Air Force, 716 F.3d

at 638).) But Defendants don’t explain why this is so; in the ordinary course, “plaintiffs

are masters of their complaints”—not defendants. Webster v. Reprod. Health Servs.,

492 U.S. 490, 512 (1989); cf. The Fair v. Kohler Die & Specialty Co., 228 U.S. 22, 25

(1913) (“[T]he party who brings a suit is master to decide what law he will rely

upon[.]”). And the Supreme Court did not mandate any such transmogrification with

respect to similar claims that it deemed to be outside of the prescribed administrative -

judicial review process. See, e.g., Free Enter., 561 U.S. at 490; McNary, 498 U.S. at

497–98.

Indeed, Defendants’ suggestion that such a reformation is the only viable way of

getting the Unions’ claims resolved (Defs.’ Reply at 14 (quoting Sec’y of the Air Force,

716 F.3d at 638)), has no support in the case law. In Secretary of the Air Force, the

D.C. Circuit merely acknowledged that if the CSRA and FSLMRS left certain parties

unable to pursue a claim that the FLRA could otherwise hear, then those parties could

not raise that claim at all. See id. at 638–39. And the panel did not suggest, as

Defendants do here, that an agencies’ inability to hear a claim me ant that such claims

could not be heard by district courts. To the contrary, at least with regard to the

constitutional and ultra vires claims presented in this case, such a conclusion upends

well-settled principles of law. See Webster v. Doe, 486 U.S. 592, 603 (1988) (noting

the serious constitutional issues that would result if no court were available to hear

55 constitutional claims); Chamber of Commerce of U.S., 74 F.3d at 1328 (explaining that

courts may normally review ultra vires claims unless Congress has expressly precluded

all non-statutory judicial review of the President’s actions).

The bottom line is this: there is no hint or suggestion that the Unions in this case

have “sought to short-circuit the administrative process through the vehicle of a district

court complaint[,]” Sturm, Ruger & Co., 300 F.3d at 876 (internal quotation marks and

citation omitted), or that they have otherwise attempted to influence the course of an

existing (or anticipated) agency adjudication, see Thunder Basin, 510 U.S. at 216. To

the contrary, it is clear that these claims against the President are not sim ply “the

vehicle by which” the Unions intend to prevail in any one given administrative

proceeding, Elgin, 567 U.S. at 22, and that the Unions’ allegations cannot be

legitimately reframed and adjudicated piecemeal by each agency t hat must apply the

President’s Orders without altering the fundamental character of the relief that is being

claimed: across-the-board invalidation of those provisions of the Orders that conflict

with the FLRA and CSRA, on the grounds that the President has no statutory or

constitutional authority to issue the challenged directives. ( See, e.g., NFFE’s Compl.

¶¶ 82–120; NTEU’s Compl. ¶¶ 100–34.) As such, the Unions’ claims are “wholly

collateral” to the administrative-judicial review processes set forth in the FSLMRS and

CSRA, and that finding clearly supports the conclusion that Congress did not intend to

relegate these types of claims to the FLRA and MSPB in the first instance. See Free

Enter., 561 U.S. at 490.

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

Finally, this Court must consider whether the Unions’ claims fall “outside the

56 [the relevant agency’s] competence and expertise.” Id. at 491. This inquiry asks not

only whether the administrative agency to which Congress has channeled certain

disputes regularly confronts the claims that a plaintiff has raised, but also whether the

agency’s expertise can be generally “brought to bear on the [] questions presented” in

the administrative proceeding. Thunder Basin, 510 U.S. at 215 (internal quotation

The statutory and constitutional claims in a given case may well be of a type that

the agency typically encounters in its line of work; if so, such claims do generally fall

within its expertise. See, e.g., Jarkesy, 803 F.3d at 28 (noting the wide array of

constitutional and statutory claims that come before the SEC). Moreover, “the

challenged statute may be one that the [agency] regularly construes,” Elgin, 567 U.S.

22, and, indeed, “there are precious few cases involving interpret ation of statutes

authorizing agency action in which [the court’s] review is not aided by the agency’s

statutory construction[,]” Jarkesy, 803 F.3d at 29 (emphasis added) (internal quotation

marks and citation omitted). That said, the Unions’ claims here primarily require an

assessment of questions concerning executive power (including, in particular, whether

or not Congress has conferred upon the President the statutory authority to issue

executive orders in the area of labor-management relations at all), and thus, this Court

concludes that the expertise of the agencies, though potentially helpful, would

ultimately be of limited utility.

This conclusion is based primarily on the fact that, as this Court has already

emphasized, neither the FLRA nor the MSPB regularly opines upon the separation-of-

powers issues that are at the heart of the instant action, nor do they have any specialized

57 experience in determining whether a statute or the Constitution has authorized the

President to act in a particular way. By contrast, these sorts of questions are the

proverbial bread and butter of the Judicial Branch. See Youngstown, 343 U.S. at 597

(Frankfurter, J., concurring) (“The judiciary may . . . have to intervene in determining

where authority lies as between the democratic forces in our scheme of government.”);

Marbury v. Madison, 1 Cranch 137, 177 (1803) (“It is emphatically the province and

duty of the judicial department to say what the law is.”).

Thus, while the FLRA and the MSPB might have helpful backgrou nd knowledge

about what the FSLMRS and CSRA require or authorize with respect to federal labor

relations, one cannot infer that Congress necessarily intended for these agencies to

always be the bodies that resolve any broader legal questions that might ari se in the

context of their consideration of the particular fact issues within their realm of

expertise. Truth be told, this conclusion is even more readily apparent when one

acknowledges the fact that the district courts can rely heavily upon the expertise of the

FLRA and the MSPB, as necessary and appropriate, when interpreting the appropriate

meaning of the FSLMRS and the CSRA. See Fort Stewart Schs., 495 U.S. at 645

(according Chevron deference to the FLRA); Kaplan v. Conyers, 733 F.3d 1148, 1177

(Fed. Cir. 2013) (noting that MSPB’s interpretation of the CSRA would be entitled to

deference were the language ambiguous).

***

“Having canvassed the three considerations the Supreme Court laid out in

Thunder Basin” and its progeny, this Court concludes that Congress did not “implicitly

preclude[] the district court’s jurisdiction over cases of this type.” Jarkesy, 803 F.3d at

58 29. The FLRA and the MSPB do not have any statutory basis for exercising jurisdiction

over the case presented here, which means no meaningful judicial review of the claims

presented here can occur unless the district courts are available to resolve cases of this

nature. (See Part IV.A.2.a, supra.) And the claims that the Unions have brought are

wholly collateral to any administrative action, such that they cannot be reasonably

construed as an effort to “short circuit” the administrative scheme that Congress

enacted. (See Part IV.A.2.b., supra.) Finally, it strains credulity to suggest, as

Defendants do here, that Congress intended for an administrative agency (even one with

particular expertise in federal labor-management relations) to resolve purely legal

claims that implicate the fundamental distribution of power among the different

branches of the federal government, and this is especially so when those claims arise in

the context of a legal challenge that is utterly divorced from any of the matters that

Congress has expressly assigned to an agency for resolution.

Therefore, although Congress clearly intended for certain disputes arising under

the FSLMRS and the CSRA to come before these administrative agencies in the first

instance, this Court confidently concludes that Congress had no such intent with regard

to the claims that the Unions have raised in the instant case. Accordingly, and because

this Court sees no other basis for questioning its own subject -matter jurisdiction, this

Court concludes that the district court is open to address, and resolve, the Unions’

claims.

The Unions’ Claims Are Fit For Judicial Resolution

“[T]he doctrine of prudential ripeness ensures that Article III courts make

decisions only when they have to, and then, only once.” Am. Petroleum Inst. v. Envtl.

Prot. Agency, 683 F.3d 382, 387 (D.C. Cir. 2012). This “threshold inquiry[,]” Ctr. for

59 Biological Diversity v. Envtl. Prot. Agency, 722 F.3d 401, 408 (D.C. Cir. 2013), exists

to ensure that the federal courts do not waste resou rces in “prematurely entangling

[them]selves in abstract disagreements,” Nat’l Treasury Emps. Union v. United States,

101 F.3d 1423, 1431 (D.C. Cir. 1996), and it “protect[s] the other branches from

judicial interference until their decisions are formalized and their ‘effects felt in a

concrete way[,]’” id. (quoting Abbott Labs v. Gardner, 387 U.S. 136, 148–49 (1967)).

Thus, although not jurisdictional, prudential ripeness is an important initial

consideration for the federal courts.

To assess whether a claim is ripe for judicial review, a court must evaluate both

“the fitness of the issues for judicial decision and the extent to which withholding a

decision will cause hardship to the parties.” Am. Petroleum Inst., 683 F.3d at 387

(internal quotation marks and citation omitted). Generally, “[t] he fitness of an issue for

judicial [review] depends on whether it is purely legal, whether consideration of the

issue would benefit from a more concrete setting, and whether the [challenged] action is

sufficiently final.” Atl. States Legal Found. v. Envtl. Prot. Agency, 325 F.3d 281, 284

(D.C. Cir. 2003) (internal quotation marks and citation omitted). In most cases, the

determination of whether a matter is fit for judicial review will be the end of the matter;

an unripe claim will usually only be heard if delay threatens “immediate and

significant” hardship to the plaintiff. Devia v. Nuclear Regulatory Comm’n, 492 F.3d

421, 427 (D.C. Cir. 2007) (internal quotation marks omitted). But, of course, this is not

an “exact science; nor is it a matter of weaving complicated legal distinctions divorced

from reality.” State Farm Mut. Auto. Ins. Co. v. Dole, 802 F.2d 474, 480 (D.C. Cir.

1986) (internal quotation marks omitted). Therefore, when making this determination,

60 courts must ultimately rely on the exercise of “practical common sense[.]” Continental

Air Lines, Inc. v. Civil Aeronautics Bd., 522 F.2d 107, 128 (D.C. Cir. 1974) (citation

omitted).

At the motion hearing in this case, Defendants acknowledged “the weaknesses of

[their] ripeness claim with respect” to the Unions’ purely legal argument that the

President does not have the statutory or constitutional authority to issue executive

orders that pertain to the field of federal labor relations (Hr’g Tr. at 27:1–5);

furthermore, defense counsel also appeared to concede that the subset of challenged

executive-order provisions that are “fully formed” and leave “no discretion” to federal

agencies are ripe for judicial review (id. at 29:5–12). But counsel held fast to the

assertion that certain claims that the Unions have made should be deemed prudentially

unripe: (1) those claims that challenge the President’s announcement of a new

collective bargaining policy if the executive order provision contains a directive to

OPM to issue regulations about the matter (Defs.’ Mem. at 39–40; Hr’g Tr. at 28:6–

18)—e.g., section 4 of the Official Time Order, which both prohibits the use of official

time for a variety of matters, and requires OPM to identify and change regulations that

are inconsistent with this mandate, see Exec. Order No. 13,837 § 4—and (2) those

claims that challenge provisions within the Orders that purport to set “aspirational

objectives” and thus “leave room for negotiation” (Defs’ Mem. at 41), such as section

5(a) of the Collective Bargaining Procedures Order, which states that “ordinarily” “a

negotiation period of 6 weeks or less to achieve ground rules, and a negotiating period

of between 4 and 6 months for a [collective bargaining agreement]” should suffice,

Exec. Order No. 13,836 § 5(a). Defendants argue that this Court should defer its

61 consideration of Plaintiffs’ challenges to these kinds of provisions in the Orders, either

because further clarification by OPM and other agency heads will permit helpful

administrative determinations regarding “the interplay of the Orders with ‘applicable

law’” (Defs.’ Mem. at 40), or because the Order provisions that merely “set goals for

the outcome of agencies’ negotiations and advise agencies on policy considerations

while bargaining with individual unions” are too fact-bound to be fit for judicial review

(id. at 41). As demonstrated below, Defendants’ ripeness contentions misconstrue

either the nature of the President’s orders, or the claims that the Unions are making

about those orders—or both—and thus are not persuasive.

Take the first category first: with respect to the Unions’ purportedly unripe

challenges to those executive order provisions that authorize further ‘clarification’ by

OPM and the like, see, e.g., Exec. Order No. 13,837 § 4(c) (ordering rulemaking to

“clarify and assist agencies in implementing these rules”), it is clear to this Court that

any future clarification by OPM or other agencies will be of limited scope, because the

anticipated future regulations will necessarily pertain to the c lear and concrete policy

change that the President has made regarding how federal agencies or federal

employees must act going forward with respect to collective bargaining negotiations ,

and this Court has no doubt that the President’s orders will be received as such, (see

AFGE’s Reply at 20–21; NFFE’s Reply at 13; NTEU’s Reply at 16–17). This means

that, as far as subsequent ‘clarifications’ are concerned, there is really not much left to

be done.

For example, section 4 of Executive Order No. 13,83 7 announces that

“[e]mployees may not engage in lobbying activities during paid time, except in their

62 official capacities as an employee.” Exec. Order No. 13,837 § 4(a)(i). Similarly,

section 4 of Executive Order No. 13,839 states that agencies shall not “subject to

grievance procedures or binding arbitration disputes concerning (i) the assignment of

ratings of record; or (ii) the award of any form of incentive pay[.]” Exec. Order No.

13,839 § 4(a); see also, e.g., Exec. Order No. 13,837 §§ 4(a)(ii)–(v), 4(b); Exec. Order

No. 13,839 §§ 2(b), 2(c), 4(b)(iii). Agencies are presently interpreting and actively

implementing these challenged prescriptions, and others (see, e.g., Pls.’ Stmt. of

Material Facts as to Which There Is No Genuine Dispute (“NFFE’s Stm t. of Facts”),

ECF No. 26-1, ¶¶ 39, 51, 66, 73–74; Pl. NTEU’s Stmt. of Material Facts Not in Dispute

(“NTEU’s Stmt. of Facts”), ECF No. 29-3, ¶¶ 13–18, 20, 28, 36, 40, 44, 54, 72–74;

Decl. of David I. Cann, Ex. 1 to Pl. AFGE’s Mot. for Summ. J., ECF No. 30-4, ¶¶ 13–

15), presumably without confusion about what the President has ordered them to do .

The fact that OPM might eventually provide additional practical guidance about how

agencies can best implement these unequivocal mandates poses no impediment to t his

Court’s consideration of the Unions’ current contention that the President’s new

policies are contrary to the labor rights that the FSLMRS guarantees. See Nat’l Home

Ass’n of Home Builders v. U.S. Army Corp of Eng’rs, 417 F.3d 1272, 1282 (D.C. Cir.

2005) (suggesting that such facial claims are presumptively fit for judicial review); see

also Am. Petroleum Inst. v. U.S. Envt’l Prot. Agency, 906 F.2d 729, 739 (D.C. Cir.

1990) (per curiam) (refusing to defer judicial review when a rulemaking will not

actually alter the status quo); Campaign for Accountability v. U.S. Dep’t of the Justice,

278 F. Supp. 3d 303, 318 (D.D.C. 2017) (explaining that a “true prudential ‘ripeness’

defect has a remarkably different appearance” and “occurs, generally speaking, when

63 the alleged wrong is insufficiently concrete . . . as a factual matter”).

The ripeness contentions that Defendants make with respect to the executive

order provisions that pertain to what agencies should “ordinarily” do in various

collective bargaining circumstances fare no better. Section 5(a) of the Collective

Bargaining Procedures Order, section 3(a) of the Official Time Order, and section 3 of

the Removal Procedures Order prescribe goals that agencies should “ordinarily”

negotiate toward, Exec. Order No. 13,836 § 5(a); Exec. Order No. 13,837 § 3(a), and/or

steps that an agency should take as part of labor negotiations “[w]henever

reasonable[,]” Exec. Order No. 13,839 § 3. Given the literal language of these Order

provisions, there is no question that agencies retain a measure of discretion that will

necessarily result in “a factual outcome” that is “sure to vary by agency and bargaining

unit[.]” (Defs.’ Mem. at 41.) But the question of whether these Order provisions

themselves are ultra vires does not turn on these variable outcomes; rather, the Unions

have suggested, among other things, that the President cannot prescribe these types of

aspirational goals because, in doing so, he has constrained agency officials’ bargaining

discretion in a manner that violates the statute. (See, e.g., NTEU’s Mem. at 24

(“Section 3 does not allow for any real bargaining on amounts of official time[.]”

(emphasis added)); AFSCME’s Reply at 18 (“[T]he clear effect of Section 5(a) is to set

an unreasonable baseline by decree rather than to approach negotiations in good faith

and with an open mind[.]”).

Properly understood, then, the Unions’ “conflict” contentions are not necessarily

about the reasonableness of the particular presumptive period of negotiation that

appears in Executive Order 13,836 (e.g., 4 months, versus 6 months, versus some longer

64 period), or whether allowing only one hour of ‘official time’ per bargaining -unit

member, as Executive Order 13,837 suggests, is in the public interest; with those kinds

of claims, perhaps a wait-and-see approach might be warranted. Instead, a consistent

theme within the Unions’ consolidated complaints is that it transgresses the statutorily -

prescribed duty of good faith in the context of collective bargaining for the Presiden t to

prescribe any presumptive timeframes or any procedural steps for the agency to shoot

for as it bargains. (See NTEU’s Compl. ¶ 106 (“Section 3 would cause agencies to seek

to impose a formulaic annual aggregate on official time . . . [and] would precl ude the

type of good faith negotiations on official time that Congress’s scheme requires[.]”);

see also AFSCME’s Compl. ¶ 55.) And the issue that such a contention raises—i.e.,

whether and to what extent the FSLMRS requires federal agencies to enter into

collective bargaining negotiations with an open mind about various aspects of

bargaining (including the scope and length of the negotiations) and without pre -

established constraints related to terms that Congress has identified as up for

discussion—is a legal one that needs no further factual development. See Nat’l

Treasury Emps. Union v. Chertoff, 452 F.3d 839, 854 (D.C. Cir. 2006) (characterizing

the union’s claim as a challenge to the perceived “threat to the process of collectively

bargaining[,]” and noting that “whether DHS ever chooses to” take a certain course of

action “is irrelevant to the ripeness inquiry”). In Part IV.D.3, infra, this Court

undertakes to answer that question. 9

9 Even if the Court “ha[d] doubts” about whether the Unions’ challenges to the goal -setting, aspirational provisions of these the Orders are fit for judicial resolution, the ongoing hardship that the Unions allege would be sufficient to propel the Court toward commencing judicial review. Nat’l Ass’n of Home Builders, 417 F.3d at 1283. (See, e.g., NFFE’s Stmt. of Facts ¶¶ 39, 50, 69; NTEU’s Stmt. of Facts ¶ 40.)

65 The President Has The Statutory And Constitutional Authority To Iss ue Executive Orders That Pertain To Federal Labor-Management Relations, So Long As His Orders Do Not Conflict With The Will Of Congress

With Defendants’ threshold arguments out of the way, the merits of the Unions’

claims take center stage. As has repeatedly been mentioned, the Unions have made a

variety of claims in the four consolidated actions that are now before this Court; for the

purpose of this Memorandum Opinion, the Court first addresses the Unions’ assertion

that the President of the United States cannot issue executive orders that carry the force

of law in the field of federal labor-management relations, because he lacks the statutory

and/or constitutional authority to do so. (See NFFE’s Compl. ¶¶ 82–95; AFSCME’s

Compl. ¶¶ 102–03.) As explained below, this Court finds that binding precedent and

the history of presidential action in this arena compels the conclusion that both section

7301 of Title 5 of the United States Code and the President’s inherent constitutional

power as head of the Executive Branch authorizes him to act in the field of federal

labor-management relations (see Part IV.C.1, infra), and furthermore, the Unions have

largely overstated the extent to which Congress sought to divest the President of any

such authority with its enactment of the FSLMRS/CSRA (see Part IV.C.2, infra). But

there is no serious dispute that any orders a President issues in this area must be

consistent with the will of Congress (see Part IV.C.3, infra), and ultimately, that is the

principle that guides this Court’s conclusions regarding the merits of the Unions’

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

As this Court mentioned at the outset, both President Kennedy and President

Nixon utilized executive orders to regulate federal labor -management relations in a

66 manner that afforded significant protections to federal workers. ( See Part II.A, supra.)

See also Exec. Order No. 11,491; Exec. Order No. 10,988. With their ultra vires

arguments, NFFE and AFSCME have strongly suggested that there has never been

statutory authority for presidents to issue any such orders with respect to federal labor

relations. (NFFE’s Reply at 21–23; AFSCME’s Compl. ¶¶ 102–03.) For their part,

Defendants maintain that “the Supreme Court has held that the President is authorized

by both Article II of the Constitution and congressional statute to issue executive orders

regulating labor relations in the federal government[.]” (Defs.’ Reply at 29.) This

dispute is material to the Unions’ overall attack on the source of the President’s

authority to act in this arena, and, as defense counsel suggests, this Court does not pen

its analysis on an entirely blank slate.

In Old Dominion Branch No. 496, National Association of Letter Carriers v.

Austin, 418 U.S. 264 (1974), the Supreme Court discussed President Nixon’s Executive

Order 11,491, which was issued in 1969 and operated as the foundation for all

collective bargaining and labor rights within the federal government. In the majority

opinion, the Court observed that this executive order was “pla inly a reasonable exercise

of the President’s responsibility for the efficient operation of the Executive Branch”

that is afforded by the Constitution, and the Court also found “express statutory

authorization in 5 U.S.C. § 7301.” 418 U.S. at 273 n.5. That statute provided (then, as

now) that “[t]he President may prescribe regulations for the conduct of employees in

the executive branch[,]” 5 U.S.C. § 7301, and the Supreme Court reasoned that the term

“conduct” included how federal employees interact with management in the workplace,

see Old Dominion, 418 U.S. at 273 n.5. Thus, the Old Dominion Court had “no

67 difficulty” in announcing the validity of an executive order that established an entire

universe of federal labor-management relations, both in light of the statutory authority

that Congress had conferred upon the President in section 7301, and also on the basis of

the inherent constitutional authority that the President enjoys with respect to the

management of the federal administrative workforce. Id.

Old Dominion can only be read to support the conclusion that the President of

the United States possesses the authority to issue executive orders regarding federal

labor-management relationships, at least in the pre-FSLMRS world. Indeed, that

appears to have been the generally accepted view throughout history, because, by

executive order presidents have dictated an entire scheme of federal labor-management

relations, see Manhattan-Bronx Postal Union v. Gronouski, 350 F.2d 451, 456 (D.C.

Cir. 1965), and they have also routinely determined what rights executive branch

employees would enjoy as part of that scheme, see, e.g., Exec. Order No. 11,491

(modifying the rights conferred by previous presidents in this field); see also Novak,

Collective Bargaining, 63 Geo. Wash. L. Rev. at 695 (explaining how these executive

orders were the ones to extend to federal employees “the right . . . to form, join and

assist any employee or organization” and to engage in “limited collective bargaining”

(internal quotation marks and citation omitted)). Moreover, it appears that the

President’s exercise of authority in this arena has not ceased in modern times. See, e.g.,

Exec. Order No. 13,522, 74 Fed. Reg. 66,203 (Dec. 9, 2009), amended by Exec. Order No.

13,708, 80 Fed. Reg. 60,271 (Sept. 30, 2015), revoked by Exec. Order No. 13,812, 82 Fed.

Reg. 46,367 (Sept. 29, 2017); Exec. Order No. 12,983, 60 Fed. Reg. 66,855 (Dec. 21,

1995), revoked by Exec. Order No. 13,203, 66 Fed. Reg. 11,227 (Feb. 17, 2001); Exec.

Order No. 12,128, 44 Fed. Reg. 20,625 (Apr. 4, 1979); Exec. Order No. 12,107, 44 Fed.

68 Reg. 1,055 (Dec. 28, 1978). If anything, the more recent pronouncements of the

Supreme Court and other authorities strongly suggest in an even clearer fashion that the

President of the United States possesses substantial authority over executive branch

employees and operations. Cf. Free Enter., 561 U.S. at 492 (“[I]f any power

whatsoever is in its nature Executive, it is the power of appointing, oversee ing, and

controlling those who execute the laws.”); id. at 496–97 (“Article II makes a single

President responsible for the actions of the Executive Branch.” (internal quotation

marks and citation omitted)); see also 5 C.F.R. 251 (citing 5 U.S.C. § 7301 as the

statutory basis for certain regulations that govern the relationships between agencies

and labor unions). Consequently, NFFE’s insistence that there is no “statutory

foundation” for a President to issue an executive order concerning federal labor -

management relations rings hollow. (NFFE’s Reply at 20.)

The best that NFFE can do to resist the conclusion that some combination of

statutory authority and constitutional authority provides the President with sufficient

power to enter the labor-management arena is to argue that the Supreme Court did not

mean what it said in Old Dominion. (See id. at 22.) In this regard, NFFE highlights the

Supreme Court’s observation in Karahalios v. National Federation of Federal

Employees, Local 1263, 489 U.S. 527 (1989), that the pre-FSLMRS executive orders

“were not legislative[,]” 489 U.S. at 535 n.3, and it also points to a series of comments

in the dicta of circuit court opinions that purport to consider whether the early

executive orders were issued pursuant to an y federal statute, see Kuhn v. Nat’l Ass’n of

Letter Carrriers, Branch 5, 570 F.2d 757, 760–61 (8th Cir. 1978); Local 1498, Am.

Fed’n of Gov’t Emps. v. Am. Fed’n of Gov’t Emps., 522 F.2d 486, 491 (3d Cir. 1975).

69 But the question presented in each of these circuit court cases differs from the one at

issue here: these cases address the status of pre-FSLMRS executive orders in the course

of deciding whether or not such orders constituted “laws of the United States” (and thus

can provide either subject-matter jurisdiction to the federal courts under section 1331 of

Title 28, or a cause of action to private persons seeking to sue their unions or federal

employers). See, e.g., Karahalios, 489 U.S. at 534–35; Kuhn, 570 F.2d at 760–61;

Local 1498, Am. Fed’n of Gov’t Emps., 522 F.2d at 490. 10 So while these courts stated

that such orders were not “legislative,” Karahalios, 489 U.S. at 535 n.3, and/or were

not “issued pursuant to a statutory authority providing for presidential implementation”

of a congressional scheme, Local 1498, Am. Fed’n of Gov’t Emps., 522 F.2d at 491,

those statements cannot be read to suggest that the pre -FSLMRS executive orders were

themselves statutorily unauthorized in the manner that NFFE suggests here. 11

NFFE’s argument also withers when viewed in light of the plain language of

section 7301. For example, NFFE emphatically argues that while section 7301 gives

the President express authority to “prescribe regulations for the conduct of employees

in the executive branch[,]” 5 U.S.C. § 7301 (emphasis added), “[u]nion official time is

10 It appears that, for a time, some courts believed that the “law[s] of the United States” could not encompass presidential orders that resulted from the President’s own power to pursue “federal government personnel policies,” but instead had to derive from a specific congressional decision to regulate a given industry or activity. Local 1498, AFGE, 522 F.2d at 491; see also Kuhn, 570 F.2d at 760–61 (looking for a “specific statute” to authorize an executive order with “the force and effect of law” (internal quotation marks and citation omitted) ); Stevens v. Carey, 483 F.2d 188, 190–91 (7th Cir. 1973) (“The President . . . was under no obligation to issue the Order; and his action in doing so was simply in furtherance of a personal policy.” (alteration in original) (internal quotation marks and citation omitted)). 11 These cases actually seem to stand for the mere proposition that, because the executive orders at issue (and the regulations they contained) were not mandated by any overarching congressional statute or design, they could not constitute a “law of the United States” for purposes of section 1331 of Title 28. Of course, that contention has no bearing on the question of whether the President has statutory authority to issue executive orders in the field of federal labor relations.

70 not a conduct issue” (NFFE’s Reply at 21 (emphasis added)). Apparently, the Supreme

Court thinks otherwise. See Old Dominion, 418 U.S. at 273 n.5 (accepting Executive

Order 11,491 as a valid exercise of the President’s statutory authority under section

7301, including section 20 of the executive order, which plainly dealt with official

time); see also BATF, 464 U.S. at 100–01 (describing the different approaches to

official time in Executive Order 11,491 and Executive Order 10,988). It is also

manifestly logical to consider the express grant of statutory authority to the President to

regulate employee “conduct” under section 7301 to include the power to speak to how

an employee spends her time at work. Cf. Black’s Law Dictionary 358 (10th ed. 2014)

(defining “conduct” as “[p]ersonal behavior,” “the manner in which a person

behaves[,]” or “collectively, a person’s deeds”).

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

Several of the union plaintiffs insist, in the alternative, that even if past

presidents had the statutory and constitutional authority to issue executive orders

regarding the federal labor-management relationship, Congress unquestionably intended

to foreclose any such action in 1978, when it enacted the FSLMRS and CSRA. ( See

NFFE’s Mem. at 28 (“Congress wrested the power to regulate federal labor -

management relations away from the Executive Branch with the passage of the

[FSLMRS.]”); NFFE’s Reply at 20 (“[T]he overall purpose of the Statute was to divest

the President of authority to regulate federal sector labor relations through executive

orders.” (emphasis in original)).) The first (and, frankly, most imposing) hurdle that

the Unions have to face in sustaining this argument is the language of the FSLMRS

itself. The codified provisions of that statute mention the President expressly in only

71 three respects. First, in section 7103(b) of Title 5 of the United States Code, Congress

provides “[t]he President” with the authority to “issue an order excluding any agency or

subdivision thereof from coverage under [the FSLMRS]” for reasons pertaining to

national security. 5 U.S.C. § 7103(b). Second, the FSLMRS allows “the President” to

appoint the members of the FLRA and its General Counsel, with the advice and consent

of the Senate, see id. § 7104(b), (f)(1), as well as the members of the Federal Services

Impasse Board, the other independent agency that the FSLMRS creates, see id.

§ 7119(c)(2). And, third, the FSLMRS affirms that the “[p]olicies, regulations, and

procedures established under and decisions issued under” prior executive orders “shall

remain in full force and effect until revised or revoked by the President, or unless

superseded by specific provisions of [the FSLMRS] or by regulations or decisions

issued pursuant to [the FSLMRS].” Id. § 7135. The provisions of the FSLMRS do not

mention the President at any other point—and, unfortunately for the Unions, that statute

does not say, as one might rightly expect it to, something to the effect of: the President

is ‘hereby precluded from issuing executive orders in this arena as he has done in the

past.’

This omission is crucial. Congress clearly knew that Presidents had previously

dabbled in regulating federal labor relations by executive order, see, e.g., id.; in fact, it

appears that the Legislature entered this arena precisely because it wanted to codify the

gains that federal workers had made by virtue of certain executive orders. See H.R.

Rep. No. 95-1403 at 12 (1978) (“The committee agrees that the time has come to

establish by statute a labor-management relations system for Federal employees[.]”

(emphasis added)); President Carter’s Statement on Signing the Civil Service Reform

72 Act of 1978, 14 Weekly Comp. of Pres. Doc. 1765 (Oct. 13, 1978) (explaining that Title

VII of the CSRA “move[d] Federal labor relations from Executive order to statute”).

The Unions read this history as firm support for the contention that Congress intended

“to stop regulation of employees by executive order.” (NFFE’s Reply at 22 (emphasis

added).) But the statute does not say that. And given the widely-known sweeping

exercise of presidential prerogative to regulate federal labor-management relations that

preceded the FSLMRS, Congress’ silence on the issue of the President’s authority to

continue to act in this arena speaks volumes about whether it actually intended to oust

the President entirely from this sphere.

What is more, in their briefing and during the motions hearing, Defendants

pointed to language in the original Public Law that appears so definitive that it can only

be understood as closing the case with respect to this investigation into Congress’s

intent. At the tail end of the document that became the CSRA, Congress included the

heading—“POWERS OF PRESIDENT UNAFFECTED EXCEPT BY EXPRESS

PROVISIONS”—and then inserted the following statement:

SEC. 904. Except as otherwise expressly provided in this Act, no provision of this Act shall be construed to[:] (1) limit, curtail, abolish, or terminate any function of, or authority available to, the President which the President had immediately before the effective date of this Act; or (2) to limit, curtail, or terminate the Pre sident’s authority to delegate, redelegate, or terminate any delegation of functions.

Civil Service Reform Act of 1978, Pub. L. 95-454, § 904, 92 Stat. 1111, 1224 . If there

exists more explicit language about the extent to which an Act of Congress should be

viewed as leaving the power of the President intact, this Court has not seen it. The

Unions themselves have provided no argument as to why this provision doesn’t settle

73 the issue, and none of the eight separate briefs that they have filed in this matter does

anything to blunt the sheer force of this clear statement of Congress.

This is not to say that the Unions are entirely wrong to observe that Congress

undertook to enact a “specific statute in 1978 comprehensively governing Federal sector

labor relations” (NFFE’s Reply at 23), and to note that the FSLMRS “reached every

aspect” of that relationship (AFGE’s Mem. at 9). See also H.R. Rep. No. 95-1403 at 38

(explaining that the FSLMRS represents “a new framework for the conduct of Federal

labor-management relations”). Where they veer off course is with the suggestion that

Congress’s enactment of the FSLMRS, standing alone, is sufficient to justify the

inference that Congress intended to prevent future Presidents from taking any action in

this area. (See, e.g., NFFE’s Reply at 20.) Courts ordinarily require more to give

subsequent legislation such preclusive effect. Cf. Lorillard Tobacco Co. v. Reilly, 533

U.S. 525, 541–42 (2001) (“[W]e work on the assumption that the historic police powers

of the States are not to be superseded by the Federal Act unless that is the clear and

manifest purpose of Congress.” (internal quotation marks, citation, and alterations

omitted)). And a clear-statement rule (or some other showing of clear congressional

intent) seems all the more important where, as here, Congress’s entry into a field

implicates the exercise of power by a co-equal branch of the federal government. Cf.

Bond v. United States, 134 S. Ct. 2077, 2089 (2014) (noting that when Congress

changes the balance of the vertical separation of powers, courts look for a clear

statement).

All things considered, then, this Court concludes that the Unions have no

sustainable basis for contending that Congress divested the President of his authority to

74 act in the field of federal labor relations by enacting the FSLMRS and CSRA. That

said, whether the President can proceed to issue labor relations executive orders that

conflict with Congress’s own pronouncements is another issue, as the Court explains

below.

The President’s Executive Orders Concerning This Area Must Be Consistent With Congress’s Pronouncements

There is no dispute that, even if the President can issue executive orders that

carry the force of law in the field of federal labor-management relations, he does not

have a “blank check . . . to fill in at his will.” Kahn, 618 F.2d at 793. (Compare, e.g.,

NTEU’s Mem. at 20 (stating that an executive order may not contradict a federal statue )

with Defs.’ Reply at 30–31 (acknowledging that an executive order that conflicts with a

federal statute is without statutory authorization).) Thus, the notion that the President

does not have the statutory authority to issue an executive order that conflicts with a

federal statute need not detain the Court for long. Quite simply, this is now clear

beyond cavil, for the D.C. Circuit has held that executive orders that conflict with the

purposes of a federal statute are ultra vires. See Chamber of Commerce of U.S., 74

F.3d at 1339 (striking down an executive order under the Procurement Act because it

conflicted with the National Labor Relations Act); see also Marks v. Cent. Intelligence

Agency, 590 F.2d 997, 1003 (D.C. Cir. 1978) (“[A]n executive order cannot supersede a

statute.”).

Of course, the President could always theoretically claim that he possesses the

inherent constitutional authority to take a given action, regardless of any conflict with a

congressional statute and his resulting lack of statutory authority. See, e.g., Zivotofsky,

135 S. Ct. at 2084; Youngstown, 343 U.S. at 585–86. But Defendants have made no

75 such assertion in the instant case; instead, they have “expressly recognized statutory

limitations on the President’s authority to act in this area.” (Defs.’ Reply at 31; see

also id. at 30–31 (“Defendants have not argued that the President can issue executive

orders contrary to the specific language of the Statute or that he has the right to revoke

any portion of the Statute through an Executive Order and make the scope of bargain ing

a null set.” (internal quotation marks and citations omitted)).)

Therefore, the claims that remain in this case turn solely upon a somewhat

“difficult problem of statutory interpretation[,]” see Kahn, 618 F.2d at 787: whether or

not the provisions of Executive Orders 13,836, 13,837 and 13,839 that the Unions have

challenged do conflict with the will of Congress as set forth in any federal statute. If

such a conflict exists, then this Court must hold that the President lacks the authority to

issue those Order provisions that generate the relevant conflicts. See Chamber of

Commerce of U.S., 74 F.3d at 1339.

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

The FSLMRS expressly enshrines the right of federal employees to bargain

collectively with respect to their working conditions. See BATF, 464 U.S. at 107. Lest

there be any doubt about the reverence that Congress appears to have had for labor

organizations and collective bargaining at the time the FSLMRS was enacted, the

statute opens with Congress’s unequivocal finding that

(1) experience in both private and public employment indicates 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— (A) safeguards the public interest, (B) contributes to the effective conduct of public business, and

76 (C) facilitates and encourages the amicable settlements of disputes between employees and their employers involving conditions of employment[.]

5 U.S.C. § 7101(a)(1). What this means is that existing, binding federal law fully

endorses labor organizations and collective bargaining in the federa l civil service; in

fact, even before Congress acknowledges that “the public interest demands the highest

standards of employee performance . . . and the efficient accomplishment of the

operations of Government,” id. § 7101(a)(2), it makes the additional, unqualified

proclamation that “labor organizations and collective bargaining in the civil service are

in the public interest[,]” id. § 7101(a).

The plain text of the FSLMRS also dispels all myths about that statute’s

purposes: “to prescribe certain rights and obligations of the employees of the Federal

Government and to establish procedures which are designed to meet the spec ial

requirements and needs of the Government.” Id. § 7101(b). Thus the statute’s various

provisions delineating “[e]mployees’ rights,” id. § 7102, “[m]anagement rights,” id.

§ 7106, “[n]ational [c]onsultation [r]ights,” id. § 7113, and “[r]epresentation rights and

duties,” id. § 7114, as well as those proscribing “unfair labor practices,” id. § 7116, and

imposing a specific duty to bargain in “good faith,” id. § 7117, clearly provide the

baseline framework for the establishment of the type of “effective” and “efficient”

federal sector labor-management relationship that the FSLMRS envisions, see id.

§ 7101(b) (“The provisions of this chapter should be interpreted in a manner consistent

with the requirement of an effective and efficient Government.”). 12 In the instant case,

12 See also id. § 7101(a)(1)(B) (finding, in particular, that protecting labor organizations and the right to collective bargaining “contributes to the effective conduct of public business” (emphasis added)); id. § 7101(a)(2) (explaining, without caveat, that “continued development and implementation of modern and progressive work practices” facilitates “the efficient accomplishment of the operations of

77 the Unions claim that certain directives in President Trump’s recent Orders so

undermine the core protections for federal laborers that the FSLMRS says “safeguard[]

the public interest,” id. § 7101(a)(1), and are so at odds with the requirements that

Congress has specifically prescribed “to facilitate and improve employee performance

and the efficient accomplishment of the operations of Government,” id. § 7101(a)(2),

that the resulting right to collective bargaining has been rendered virtually

unrecognizable. (See, e.g., NTEU’s Mem. at 37; NTEU’s Reply at 37; Hr’g Tr. at

115:14–22.) When the text of the challenged executive order provisions are considered

in light of existing law that delineates the scope of the right to bargain collectively and

the duty of management to bargain in good faith, this Court agrees that many of the

challenged Order provisions impermissibly infringe upon the right to good -faith

bargaining that the FSLMRS establishes.

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

The FSLMRS not only created the statutory right of federal employees to

“collective bargaining,” but also (quite helpfully) expressly defined that term. In

relevant part, the definitions section (5 U.S.C. § 7103) states:

“collective bargaining” means the performance of the mutual obligation of the representative of an agency and the exclusive representative of employees in an appropriate unit in the agency 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 and to execute, if requested by either party, a written document incorporating any collective bargaining agreement reached, but the obligation referred to in this paragraph does not compel either party to agree to a proposal or to make a concession[.]

Government” (emphasis added)).

78 5 U.S.C. § 7103(a)(12) (emphasis added). Much of the remainder of the statute is

devoted to specifying the circumstances under which the prescribed good-faith

negotiations over “the personnel policies, practices, and matters . . . affecting working

conditions[,]” id. at § 7103(a)(14) (defining “conditions of employment”), must, might,

or won’t occur, see id. §§ 7103(a)(12), 7106, 7117. The FSLMRS also creates an

independent agency to resolve certain foreseeable future disputes regarding particular

negotiations and to develop the specific policies that necessarily will be required to

shore up collective bargaining rights, id. §§ 7104, 7105.

But the primary mandate is clear: in contrast to workplace scenarios in which

rules and requirements can be unilaterally imposed upon workers by the management,

under the FSLMRS, labor representatives and agency managers are obliged “to consult

and bargain” regarding the conditions of employment, and to proceed in “good faith”

during any such collective bargaining negotiations. Id. § 7103(a)(12). In other words,

boiled to bare essence, the right of collective bargaining that the FSLMRS protects is

the right of federal workers to have a say with respect to the terms and conditions under

which they will be working. See Overseas Educ. Ass’n, Inc. v. Fed. Labor Relations

Auth., 876 F.2d 960, 971 (D.C. Cir. 1989) (stating that a “collective bargaining measure

. . . allows [] employees to combine their views and their voices in a concerted

responsive effort”); cf. Nat’l Labor Relations Bd. v. Am. Ins. Co., 343 U.S. 395, 401–02

(1952) (“The National Labor Relations Act is designed to promote industrial peace by

encouraging the making of voluntary agreements governing relations between unions

and employers.”).

Notably, the D.C. Circuit has determined that there are certain “core element[s]”

79 of the protected right to bargain collectively under the FSLMRS—i.e., certain aspects

of that right that are so fundamental to its exercise that efforts to interfere with them

qualify as violations of the FSLMRS. See Chertoff, 452 F.3d at 861. Two of these core

elements are relevant to this Court’s analysis of the Orders the Unions have challenged

in the instant case: (1) the duty to “bargain[,]” and (2) the duty to negotiate “in good

faith[.]” 5 U.S.C. § 7103(a)(12). An understanding of the scope and nature of these

obligations is essential for comprehending this Court’s ultimate conclusions.

a. The Duty To Bargain

The text of the FSLMRS plainly establishes a three-tier approach that delineates

the boundaries of the parties’ statutory duty “to bargain” about working conditions in

the federal civil service. To begin, there is a presumptive requirement that federal

agencies and labor unions must bargain over any “condition of employment[,]” meaning

any “personnel policies, practices, and matters” that affect agency employees. Id.

§ 7103(a)(12), (14); see also Nat’l Treasury Emps. Union, 414 F.3d at 52 (“[T]he

Statute generally obligates an agency to negotiate with its employees’ bargaining

representative over ‘conditions of employment[.]’” (citation omitted)). These are

“mandatory” subjects of negotiation. U.S. Dep’t of the Navy, Naval Aviation Depot,

Cherry Point, N.C., 952 F.2d at 1439.

The FSLMRS also identifies certain other matters that courts have deemed

“permissive”—i.e., matters that an agency may bargain over “at [its] election[.]” 5

U.S.C. § 7106(b)(1); see also Nat’l Treasury Emps. Union v. Fed. Labor Relations

Auth., 453 F.3d 506, 508 (D.C. Cir. 2006). Per the statute, the parties might negotiate

over the “numbers, types, and grades of employees” or the “technology, m ethods, and

means of performing work[,]” and if the agency agrees, they can strike a bargain

80 regarding these matters. 5 U.S.C. § 7106(b)(1). Thus, federal agencies and unions are

free to approach each other and discuss the prospect of bargaining over such matters,

and must engage in a good-faith discussion on this front, but “neither party may

lawfully insist upon agreement on such issues as a condition to a labor agreement.”

U.S. Dep’t of the Interior, Bureau of Reclamation v. Fed. Labor Relations Auth. , 23

F.3d 518, 521 (D.C. Cir. 1994).

Third, and finally, the statute specifically “places a number of substantive topics

off limits for bargaining[,]” including the “management rights” contained in section

7106(a) of Title 5 of the United States Code, Chertoff, 452 F.3d at 863; see also 5

U.S.C. § 7106(a), as well as the subject matter of “any Federal law or any Government-

wide rule or regulation[,]” 5 U.S.C. § 7117(a)(1); see also U.S. Dep’t of the Air Force,

952 F.2d at 448 (“[A] federal agency may not negotiate over proposed conditions of

employment that are inconsistent with any Federal law or Government -wide rule or

regulation.” (internal quotation marks and citation omitted)).

What this three-tier structure means is that the scope of collective bargaining

between federal agencies and unions under the FSLMRS encompasses the negotiation of

all mandatory subjects (i.e., all conditions of employment not excluded or excludable

under sections 7106 or 7117), as well as discussions regarding the prospect o f

negotiating any of the permissive bargaining matters laid out in section 7106(b)(1) (i.e.,

matters over which the agency can opt to reach an agreement). See U.S. Dep’t of the

Navy, Naval Aviation Depot, Cherry Point, N.C., 952 F.2d at 1439 (“Inherent in both

the NLRA and the FSLMRS is a fundamental rule that the parties to a bargaining

relationship are [] required to negotiate over “mandatory” subjects of bargaining.”);

81 U.S. Dep’t of the Treasury, Internal Revenue Serv., Office of Chief Counsel, Wash. D. C.

v. Fed. Labor Relations Auth., 739 F.3d 13, 19 (D.C. Cir. 2014) (“[S]ection 7106(b)(1)

expressly identifies certain matters that although interfering with section 7106(a)

management rights, may nonetheless be negotiated at the election of the agency[.]”

(internal quotation marks and citation omitted)). With respect to these delineated

matters, Congress has provided no choice: federal workers’ right to collective

bargaining requires agency management to either actually discuss certain topics or be

open to discussing them. But as the D.C. Circuit has recognized, in the overall scheme

of things, the scope of protected bargaining rights that the FSLMRS mandates with

respect to federal labor relations is relatively narrow. See Chertoff, 452 F.3d at 861.

That is, the FSLMRS “excludes from negotiations a host of subjects that employers

would be obliged to bargain about in the private sector.” Id. (internal quotation marks

and citations omitted). As explained above, Congress appears to have done this in

deference to “the special requirements and needs of the government[.]” Id.; see also id.

at 863 (explaining that Congress struck a delicate balance, by creating a collective

bargaining system whose “parameters . . . under the FSLMRS are narrow and flexible”).

b. The Duty To Act In Good Faith

The FSLMRS also expressly requires both labor unions and agencies to negotiate

“in good faith” during collective bargaining negotiations. See, e.g., 5 U.S.C.

§§ 7103(a)(12), 7114(b). The duty to bargain in good faith plays a central role in the

FSLMRS’s scheme, because an agency’s “unwillingness to discuss the issues with an

open mind, and to engage in a ‘give and take’ relationship foreclose[s] any possibility

of meaningful collective bargaining.” Fed. Aviation Admin. Nw. Mountain Region

Seattle, WA, 14 F.L.R.A. 644, 672 (1984); see also Archibald Cox, The Duty to Bargain

82 in Good Faith, 71 Harv. L. Rev. 1401, 1412–13 (1958) (“The bargaining status of a

union can be destroyed by going through the motions of negotiating almost as easily as

by bluntly withholding recognition.”).

To satisfy this duty, agencies and unions have a clear statutory obligation: to

“approach [] negotiations with a sincere resolve to reach a colle ctive bargaining

agreement”; to “be represented at the negotiations by duly authorized representatives

prepared to discuss and negotiate on any condition of employment”; and to “meet at

reasonable times and convenient places as frequently as may be necessa ry, and to avoid

unnecessary delays[.]” 5 U.S.C. § 7114(b)(1)–(2). In addition, the parties must

“participate actively in the deliberations so as to indicate a present intention to find a

basis for agreement”; maintain “an open mind”; and make “a sincere effort . . . to reach

[] common ground.” Amalgamated Transit Union Int’l AFL–CIO v. Donovan, 767 F.2d

939, 949 (D.C. Cir. 1985); Turegon v. Fed. Labor Relations Auth., 677 F.2d 937, 939–

40 (D.C. Cir. 1982) (“[I]t is appropriate . . . to consider preceden t developed under the

NLRA in interpreting the [FSLMRS].”). Hence, when appraising whether a union or

agency has acted in bad faith, the FLRA and the courts pay particular attention to

whether there has been an “attempt to evade or frustrate the bargainin g

responsibility[.]” Division of Military & Naval Affairs, State of N.Y., 7 F.L.R.A. 321,

338 (1981).

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

The FSLMRS’s unequivocal duties to (a) “bargain” and (b) negotiate “in good

faith” compel the conclusion that Congress intended to regulate agency conduct with

respect to federal labor negotiations, and these statutory criteria clearly impact federal

83 agencies in at least two ways. First, in order to preserve federal workers’ statutory

right to “bargain,” an agency must be cautious about taking matters off the negotiating

table in its collective bargaining discussions. See, e.g., U.S. Dep’t of the Navy, Naval

Aviation Depot, Cherry Point, N.C., 952 F.2d at 1439. Second, in order to fulfill the

obligation to bargain “in good faith,” agency representatives must keep an open mind

and exhibit flexibility in the give-and-take process that good-faith negotiation requires.

See Amalgamated Transit Union Int’l AFL–CIO, 767 F.2d at 949. In other words,

because Congress has specifically determined the scope of the right to collective

bargaining in the federal civil service, (i.e., what matters can, must, and need not be

negotiated), as well as the required nature of any such negotiations (i.e., a sincere

attempt to reach agreement), in order to act consistently with that statute, agency

management must not remove covered matters from the bargaining table

indiscriminately, and must proceed to collective bargaining discussions ready to listen

and consider what the workers are proposing, with an open mind and with every

intention of coming to a mutually acceptable result.

In regard to what agencies can and cannot do, National Treasury Employees

Union v. Chertoff, 452 F.3d 839 (D.C. Cir. 2006), is instructive. In that case, OPM and

the Department of Homeland Security (“DHS”) attempted to implement a provision of

the Homeland Security Act that authorized them to create the DHS human resources

system, but the final regulations that DHS issued drastically reduced the matters that

were subject to collective bargaining such that, in essence, only those “that might be

seen as personal employee grievances” remained. Id. at 848. The new policy also

authorized DHS to take additional matters off the bargaining table in the future. See id.

84 Several unions filed a lawsuit, complaining that, among other things, OPM and DHS’s

regulation “impermissibly restricted the scope of bargaining.” Id. at 851. And, the

D.C. Circuit held that, because the agencies had impermissibly diminished the already

narrow “scope of bargaining” under the Homeland Security Act (which mimics the

scope of bargaining under the FSLMRS, see id. at 858, 863), the agencies’ actions had

violated the right to bargain collectively, see id. at 861.

As far as agency management’s obligation to respect employees’ right to bargain

goes, Chertoff provides at least three relevant lessons. First, it establishes that the

linchpin of identifying agency conduct that impermissibly undermines the right to

bargain is whether the agency’s actions strike at the “core elements[s]” of collective

bargaining as defined by statute. (See Part IV.D.1(a), (b), supra.) Chertoff, 452 F.3d at

861. Second, with respect to the scope of bargaining under the FSLMRS, an agency’s

reduction of the matters that would otherwise be subject to negotiation between

agencies and federal employees (i.e., taking matters off the table) can deprive the

employees and their union representatives of the right to bargain collectively, and can

thereby violate the statute. Chertoff, 452 F.3d at 844, 861–62. Even without imposing

limitations that specifically and directly conflict with individual statutory prescriptions,

there can come a point at which an agency (or in this case the President) diminishes the

scope of bargaining such that the only acceptable conclusion is that the agency’s

conduct violates the FSLMRS’s requirement that the parties “bargain in a good-faith

effort to reach agreement with respect to the conditions of employment affecting such

employees[,]” 5 U.S.C. § 7103(a)(12). Third, an attempt to limit the negotiability of

the areas of bargaining that the FSLMRS deems permissive (i.e., those over which the

85 agency has discretion to bargain under section 7106(b)(1)) is not merely an innocuous

exercise of management prerogatives; rather, it eviscerates the statutory right of

employees to have an opportunity to discuss certain matters, and also seemingly sheds

light on the agency’s motivations for slashing otherwise potentially negotiable topics ,

and as such, is cause for great concern. See Chertoff, 452 F.3d at 862 (calling the fact

that the agency had removed the “permissive” areas of bargaining from the scope of

bargaining “critical” with respect to a determination of whether the scope of bargaining

was impermissibly reduced).

Not surprisingly, Defendants read Chertoff differently. They argue, for example,

that the hallmark of an impermissible reduction in the scope of bargaining under

Chertoff is not whether the agency has acted to remove from the collective bargaining

table topics that Congress has specifically identified as negoti able, but whether what is

left on the table is sufficient to constitute collective bargaining within the meaning of

statute. (See, e.g., Defs.’ Mem. at 73 (“[T]he HR system struck down by the D.C.

Circuit in Chertoff bears no resemblance to the collective bargaining regime that

continues to exist under the President’s Executive Orders.”); see also Defs.’ Reply at 24

(quoting Chertoff to suggest that an egregious near-total diminution of bargaining is

necessary, based on the D.C. Circuit’s observation that the challenged act before it had

“reduced the scope of bargaining . . . to ‘virtually nil’” (citation omitted)).) But

Chertoff’s analysis does not demand this result. To be sure, in that case the D.C.

Circuit evaluated what appears to have been a near total abrogation of the collective

bargaining right, but that says nothing about whether a less egregious affront can

suffice to impair the right to bargain in violation of the FSLMRS. With respect to that

86 key question, Chertoff established (and this Court concludes) that “the norms of

‘collective bargaining’” matter, 452 F.3d at 861, and that agency efforts to remove from

the bargaining table otherwise negotiable topics of discussion arbitrarily and in a

manner that impacts a unions’ ability to engage in effective collective bargaining

negotiations moving forward impermissibly jeopardizes the right to bargain that the

FSLMRS assiduously protects, id. at 487 (concluding “the scope of bargaining” rights

under federal law “must be guided by the federal labor policy underlying the

permissible scope of bargaining in the federal sector[,]” and that the “general

framework” that Congress has laid out “to ensure collective bargaining” for federal

employees “must be followed”).

One final takeaway bears mentioning: we have learned from the FLRA that an

executive branch official can be found to have “instruct[ed]” agency negotiators in a

manner that “preclude[s] the existence of the prerequisite good faith necessary under

the” FSLMRS. Fed. Aviation Admin. Nw. Mountain Region Seattle, WA, 14 F.L.R.A. at

672. This occurs most obviously when the instruction prevents the negotiator from

“approach[ing] the Union with [an] open mind[.]” Id. In other words, commands that

are likely to cause agency representatives to pursue a certain outcome with such dogged

determination that the agency negotiator effectively “come[s] to the bargaining table

with a closed mind[,]” impinge upon the duty to act in good faith. Sign & Pictorial

Union Local 1175, 419 F.2d at 731; compare Teamsters Local Union No. 515 v. Nat’l

Labor Relations Bd., 906 F.2d 719, 726 (D.C. Cir. 1990) (emphasizing that “rigid

adherence to disadvantageous proposals may provide a basis for inferring bad faith”

(internal citation and quotation marks omitted)) with Fed. Aviation Admin. Nw.

87 Mountain Region Seattle, WA, 14 F.L.R.A. at 672 (associating a flexible process of

“give and take” with the obligation to proceed in “good faith”).

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

With the above framework in mind, it is clear to this Court that various aspects

of the Orders that the Unions seek to challenge in this case violate the statutorily

protected duty to bargain. This violation is most easily perceived as an illegitimate

attempt to take four categories of otherwise negotiable matters off the bargaining table:

(1) all of the permissive subjects of bargaining that Congress has listed in section

7106(b)(1) of Title 5 of the United States Code; (2) the ways in which union members

can receive and use official time (which the FSLMRS addresses in section 7131(d)); (3)

the agency’s procedures for handling matters relating to inadequate employee

performance, performance evaluations, and performance-based bonuses (which is

covered in the statute, at sections 7103(a)(12) and 7121); and (4) the methods for

conducting collective bargaining in the first place (which are designated by Congress as

a topic for negotiation under section 7114(a)(4)).

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

To be more specific, with respect to each of these bargaining categories, the

challenged executive orders dictate the following. Section 6 of the Collective

Bargaining Procedures Order states that agencies “may not negotiate over the substance

of the subjects set forth in section 7106(b)(1) of [T]itle 5”— period. Exec. Order No.

13,836 § 6. This means that unions and agencies will no longer engage in negotiations

over such topics as “the numbers, types, and grades of employees or positions assigned

88 to any organizational subdivision, work project, or tour of duty” and “the technology,

methods, and means of performing work”—matters that Congress specifically

designated as subject to negotiation “at the election of the agency” in section

7106(b)(1). 5 U.S.C. § 7106(b)(1).

Even more dramatically, the Official Time Order completely reconceptualizes the

terms and scope of bargaining regarding the right of employees to engage in union

business during their paid working hours—a topic that the FSLMRS specifically covers.

See Exec. Order No. 13,837. Subsections (a) and (c) of section 7131 of the FSLMRS

provide a list of certain activities for which a federal agency must grant “official time”

to labor representatives, 5 U.S.C. § 7131(a) (negotiation of a collective barg aining

agreement); id. § 7131(c) (participation of proceedings before the FLRA, if that agency

authorizes it), while section 7131(b) provides Congress’s directive that, with respect to

activities “relat[ed] to the internal business of a labor organization[ ,]” official time

cannot be used, id. § 7131(b). For everything else, section 7131(d) states that federal

employees “shall be granted official time in any amount the agency and the exclusive

representative involved agree to be reasonable, necessary, and i n the public interest.”

Id.; see also BATF, 464 U.S. at 99 (defining “official time” as the right of employees to

receive their “usual pay” during union-related matters). Yet certain challenged

provisions in the Official Time Order expressly limit the negotiations over the matters

for which official time can be utilized: e.g., the Order flatly prohibits the use of official

time to lobby government officials, or to prepare grievances on behalf of the union or

other union members. See Exec. Order No. 13,837 §§ 4(a)(i), 4(a)(v). Similarly, the

Official Time Order instructs agencies that they cannot provide union members with

89 federal resources or support relating to activities performed on official time, see id.

§§ 4(a)(iii)–(iv)—effectively making those matters, too, non-negotiable—and it restricts

bargaining over the conduct of union employees with respect to the use of official time

as well, because, whatever collective bargaining negotiators might have been able to

agree to about the amount of official time labor representatives can utilize while

engaged in union business, the order mandates that official time cannot comprise more

than twenty-five percent of a union employee’s working hours, see id. § 4(a)(ii), and

management approval must be obtained before any official time can be used at all, see

id. §§ 4(b).

By restricting negotiation over the procedures that an agency uses to evaluate

employee performance, the Removal Procedures Order takes a similar tack. See Exec.

Order No. 13,839. For example, section 4(a) explicitly prohibits agencies from

subjecting disputes about assignment ratings (i.e., performance evaluations) or

performance-based monetary awards to any “grievance procedures or binding

arbitration[,]” id. § 4(a), no matter what the agency and labor organization might have

been able to agree to with respect to how such disputes should be handled. Compare 5

U.S.C. § 7121(a)(1) and (2) (providing that “any collective bargaining agreement shall

provide procedures for the settlement of grievances[,]” and suggesting that all related

grievance matters are negotiable, because “any collective bargaining agreement may

exclude any matter from the application of the grievance procedures which are provided

for in the agreement”). Section 4(c) of Executive Order 13,839 removes from the

bargaining process and commits to the sole discretion of agency management how long

an employee should have to improve their performance before being terminated once

90 their employer has deemed their performance unacceptable within the meaning of

section 4302(c)(6) of Title 5 in the United States Code, see Exec. Order No. 13,839

§ 4(c), despite the fact that section 4302(c)(6) and the relevant regulations in this regard

do not set any definite limit on the length of time that employees have to improve their

performance, see 5 U.S.C. § 4302(c)(6). 13

Courts and the FLRA have decided that each of the matters discussed above falls

within the scope of the right to bargain that Congress sought to protect when it enacted

the FSLMRS. See BATF, 464 U.S. at 107 n.17 (financial support to union members is

negotiable during collective bargaining); Dep’t of the Air Force Eglin Air Force Base,

Fla., 2016 WL 3548040, at *13 (May 31, 2016) (a party is free “to advocate for what it

believes to be the proper amount of official time”); U.S. Dep’t of the Treasury, Internal

Revenue Serv., Wash. D.C., 56 F.L.R.A. 393, 395 (2000) (“[M]atters covered under

section 7106(b)(1) are negotiable only at the election of the agency.”); Am. Fed’n of

Gov’t Emps. Nat’l Council of Field Labor Locals, 39 F.L.R.A. 546, 553 (1991) (how

official time may be used is open to negotiation); Patent Office Prof’l Ass’n, 29

F.L.R.A. 1389, 1403 (1987) (the amount of recovery time to be provided before

performance-based action is negotiable); Vt. Air Nat’l Guard, Burlington, Vt., 9

F.L.R.A. 737, 740–41 (1982) (the scope of grievance procedures is negotiable); see also

5 U.S.C. § 7114(a)(4) (unions and agencies “may determine appropriate techniques,

13 The Unions point to one other purported conflict between a provision of the Removal Procedures Order and the FSLMRS with regard to the scope of bargaining: section 4(b)(iii) of that Order prohibits an agency from “mak[ing] any agreement, including a collective bargaining agreement . . . that limits the agency’s discretion to remove an employee from Federal Service without first engaging in progressive discipline[.]” Exec. Order No. 13839 § 4(b)(iii). As explained in Part IV.E, this directive does not conflict with the scope of bargaining protected by the FSLMRS, because the FLRA has already determined that such matters are within the sole discretion of agency management under section 7106(a), and the opinion of this expert agency is entitled to Chevron deference.

91 consistent with the provisions of section 7119 of [the FSLRMS], to assist in any

negotiation”). However, as indicated above, the Orders that the Unions challenge here

selectively remove these nine matters from the array of topics that Congress has placed

on the bargaining table in the FSLMRS, ostensibly to promote an expansive conception

of what Congress intended when it recognized the public’s interest in “the effective

functioning of the executive branch.” Exec. Order No. 13,837 (preamble); Exec. Order

No. 13,839 (preamble); see also Exec. Order No. 13,836 (preamble); cf. Chertoff, 452

F.3d at 861–62 (concluding that the removal of just six matters illegally diminished the

scope of bargaining anticipated in the statute). 14 This Court has little doubt that this

shifting of discussion topics from the “must” or “may” negotiate buckets that Congress

created and into the non-negotiable bucket reduces the scope of the protected right to

bargain in an impermissible manner. See Chertoff, 452 F.3d at 861.

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

Whether or not the right to bargain has been impermissibly reduced as a result of

14 As an aside, each of these Orders puts way too much stock in the FSLMRS’s statements about an “effective” and “efficient” government, as a general matter. It is certainly true that that goal reflects one key aspect of the careful balance that Congress was attempting to strike between management and labor. See, e.g., 5 U.S.C. § 7101(a)(2) (suggesting that “the public interest demands the highest standards of employee performance”). But the overall thrust of the FSLMRS is unquestionably Congress’s stated belief that “labor organizations and collective bargaining in the civil service are in the public interest[,]” id., rather than any concern that, by accommodating collective bargaining rights, government agencies were becoming ineffective or inefficient and thus not serv ing the public. Moreover, far from being propelled by some abstract conviction that the scope of the right of collective bargaining needs to be reduced in order to achieve an effective and efficient federal workforce (as these Orders suggest), in the FSLMRS, Congress stated plainly what the statute means when it references “the requirement of an effective and efficient Government.” Id. § 7101(b). Section 7101(a)(1)(B) explains that “the statutory protection of the right of employees to organize, bargain c ollectively, and participate through labor organizations of their own choosing in decisions which affect them” itself “contributes to the effective conduct of public business,” and section 7101(a)(2) indicates that “the continued development and implementation of modern and progressive work practices” through collective bargaining “facilitate[s] and improve[s] employee performance and the efficient accomplishment of the operations of the Government.” Id. § 7101(a)(1)(B), (2) (emphasis added).

92 the removal of these matters from the realm of negotiation turns on more than just the

number of matters the Orders remove from the ambit of collective bargaining

discussions; it also depends on the relative importance of the subjects that the orders

target in this regard. When viewed from this perspective, this Court’s assessment of

whether or not these provisions of the Orders conflict with the will of Congress

becomes even more grave.

Consider, for example, the ban on agency and union negotiations about the

potential of negotiating the permissive bargaining matters listed in section 7106(b)(1).

In Chertoff, the D.C. Circuit expressly disapproved of agency determinations that these

matters are categorically “off limits[,]” and in doing so, the panel strongly suggested

that the “distinction” between a right of bargaining that includes the potential to discuss

these matters and a right of bargaining that does not “is critical.” 452 F.3d at 862.

But that is not the only canary in the coal mine. Indeed, one could argue th at the

executive order provisions that restrict and limit official time have an even bigger

impact on the scope of bargaining that the FSLMRS protects. By prohibiting union

members from using official time for lobbying efforts or for the pursuit of other

employees’ grievances, the Official Time Order has eliminated what the Unions say are

two indisputably central activities of labor organizations: attempting to preserve and

expand (through lobbying) the statutory protections for workers and the right to

collective bargaining (see, e.g., NFFE’s Stmt. of Facts ¶ 58; Decl. of Kenneth Moffett,

Jr., Ex. 1 to Pl. NTEU’s Mot. for Summ. J., ECF No. 29 -4, ¶ 35), and seeking to enforce

the results of collective bargaining negotiations by working with their members to file

grievances under negotiated grievance procedures about the violation of agreed-to

93 conditions (see, e.g., NTEU’s Stmt. of Facts ¶¶ 30, 47; Decl. of Witold Skwierczynski,

Ex. 3 to Pl. AFGE’s Mot. for Summ. J., ECF No. 30 -6, ¶ 27). For a very long time in

this country, unions have played a “major” role “in urging legislation and candidacies”

with the goal of advancing policy agendas that are favorable to workers. Int’l Ass’n of

Machinists v. Street, 367 U.S. 740, 813 (1961) (Frankfurter, J., dissenting); see also

Citizens United v. Fed. Election Comm’n, 558 U.S. 310, 344–47 (2010) (providing

examples). Indeed, for public unions in particular, the right to “communicate with

Congress is essential . . . because so many fundamental working conditions are directly

determined by Congress through legislation.” Gen. Servs. Admin., 9 F.L.R.A. 213, 223

(1982). And it is also clear that gains workers achieve through a union’s agreements

with management would not be worth the paper they are written on if unions and their

members cannot effectively enforce the terms of their agreements through the vigorous

pursuit of any grievance that a member is authorized to file. See Sec’y of the Air Force,

716 F.3d at 636–37. By assisting individual members in the grievance process, unions

have traditionally advanced this effort. See, e.g., Vaca v. Sipes, 386 U.S. 171, 194

(1967). And Congress appears to have endorsed this practice, for it devoted an entire

section of the FSLMRS to negotiated grievance procedures, see 5 U.S.C. § 7121,

explicitly granting federal workers (through their representatives) an open -ended right

to bargain with management about them.

Thus, it is entirely unsurprising that unions have sought to protect and defend the

right to bargain over the use of official time for lobbying and grievance assistance, both

before and after the enactment of the FSLMRS. See Patent Office Prof’l Ass’n v. Fed.

Labor Relations Auth., 872 F.2d 451, 452–53 (D.C. Cir. 1989) (grievances); Gen. Servs.

94 Admin., 9 F.L.R.A. at 223 (lobbying). Collective bargaining over material support has

also been viewed as a vital term in collective bargaining negotiations for many reasons,

including the fact that the potential of securing support contributes to the parity

between management and labor that the FSLMRS implicitly requires. See Dep’t of the

Navy Naval Constr. Battalion Ctr. Port Hueneme, Cal., 14 F.L.R.A. 360, 372 (1984);

see also BATF, 464 U.S. at 104 (noting that several provisions of the act “aim[] at

equalizing the positions of management and labor”); id. at 101–02 (recognizing that the

justifications for permitting federal workers to do union work during paid time have

historically centered on the need “to maintain a reasonable policy with respe ct to union

self-support[,]” and on the principle that union members “should be allowed official

time to carry out their statutory representational activities just as management uses

official time to carry out its responsibilities” (internal quotation marks and citations

omitted)). Under these challenged provisions of the Official Time Order, however, the

Unions’ right to bargain for the official time and financial support that contributes to

parity in collective bargaining negotiations is significantly diminished, because union

representatives cannot negotiate for the financial support that management receives, nor

can they barter for arrangements that would permit uni on representatives to devote the

necessary time to become specialists in labor-management issues. See Exec. Order No.

13,837 §§ 4(a)(ii)–4(a)(iv). This, in turn, exacerbates management’s advantages over

labor and hampers unions’ ability to engage effectively in future collective bargaining,

contrary to the clearly articulated goals of the FS LMRS. See 5 U.S.C. § 7101(a).

Insofar as the Official Time Order also generally requires agency management to

pre-approve union representatives’ use of official time, see Exec. Order No. 13,837

95 § 4(b), one could argue that this singular provision is the one that does the most damage

to the statutory right to bargain that the FSLMRS establishes. This is so because

requiring preapproval effectively confers upon management the discretion to dictate

when, if ever, union employees may use paid time to engage i n union activities. See id.

§ 5(b) (requiring any authorization procedure to allow management to “assess whether

it is reasonable and necessary” to grant such official time). (See also NFFE’s Mem. at

41–42.) No, the Order does not give management the power to prevent union members

from engaging in any union activities on their own time. (See Defs.’ Mem. at 77; Hr’g

Tr. 146:3–11.) Nor does the Order expressly divest labor representatives of their clear

statutory right to use paid time to negotiate collective bargaining agreements under

section 7131(a) of Title 5 of the United States Code, or to participate in authorized

FLRA proceedings. See id. § 7131(c). But to the extent that the Order confers upon

management control over when (and if) official time is used to do anything else union -

related, it effectively shifts the determination of what is “reasonable, necessary, and in

the public interest” away from both parties, where section 7131(d) of Title 5 of the

United States Code places it, and hands that crucial decision over to management alone,

in a manner that might well result in labor representatives being denied the use of p aid

time in all but the most narrow set of circumstances. 15

15 The parties to collective bargaining negotiations can still conceivably bargain over the circumstances under which official time might be appropriately granted (except for lobbying and grievances), and can include such circumstances in their agreements, under the Official Time Order’s provision, but, as noted, the Order directs agencies to secure the power to grant or deny “authorization” for the requested use of official time for any reason, which will affect how official -time agreements are actually implemented. Exec. Order No. 13,837 § 4(b). Thus, agencies can turn any bargain regarding the scope of official time into a meaningless exercise, and according to the D.C. Circuit, that circumstance conflicts with the will of Congress, because “[n]one of the major s tatutory frameworks for collective bargaining allows a party to unilaterally abrogate a lawfully executed agreement.” Chertoff, 452 F.3d at 860. In other words, by giving management the unilateral power to determine whether or not this bargained-for term will be actually implemented, the government has effectively conferred upon itself

96 The Removal Procedures Order provisions that (a) pertain to agreements about

the grievability of performance evaluations and incentive awards, and (b) place time

limits on struggling employees’ efforts to improve their performance, have similar

outsized significance. As indicated above, it is well established that grievance

procedures exist to “safeguard the participation rights of individual employees and []

unions[,]” Am. Fed’n of Gov’t Emps., Locals 225, 1504, and 3723 AFL-CIO v. Fed.

Labor Relations Auth., 712 F.2d 640, 641 (D.C. Cir. 1983), and the FSLMRS finds that

such participation is “in the public interest[,]” 5 U.S.C. § 7101(a), so any reduction in

the scope of negotiations regarding such procedures is potentially problematic from the

standpoint of what matters to Congress as reflected in the FSLMRS. Moreover, because

federal employees’ ability to file grievances regarding unsatisfactory performance

evaluations and/or performance awards, in particular, is clearly instrumental in

facilitating the protection of other statutory rights, see, e.g., Lathram v. Snow, 336 F.3d

1085, 1089 (D.C. Cir. 2003) (claiming that a “pay differential was a result of

discrimination”); Smith v. Sec’y of the Navy, 659 F.2d 1113, 1120 (D.C. Cir. 1981)

(acknowledging that “[a]n unfavorable employee assessment . . . could both prejudice

the employee’s superiors and materially diminish his chances for advancement”), the

Order’s elimination of the ability of labor representatives to negotiate over how

grievances will be handled with respect to federal employees who claim they were

improperly evaluated or undercompensated deprives unions of an opportunity to utilize

the collective bargaining process to influence the m echanisms through which accurate

and fair treatment of employees within the federal civil service occurs. Accountability

the power to nullify any bargained -for agreement to the use of official time.

97 of government officials with respect to their treatment of workers also hangs in the

balance—all in clear contrast with Congress’s stated conviction that collective

bargaining has the potential to “safeguard[] the public interest” and to “facilitate . . .

the amicable settlements of disputes[.]” 5 U.S.C. § 7101(a) (emphasis added).

Likewise, and finally, forbidding agencies from bargaining over the length of

time available to an employee to “demonstrate acceptable performance” under section

4302(c)(6) of Title 5 of the United States Code effectively silences workers with

respect to “one of the most important rights” relating to perform ance-based employment

actions. Sandland, 23 M.S.P.R. 583, 590 (1984). Defendants have yet to explain how

shutting down any such discussions comports with the FSLMRS’s requirement that

federal workers get a ‘say’ with respect to their conditions of employment. See 5

U.S.C. § 7103(a)(14); Dep’t of the Treasury, Office of Chief Counsel v. Fed. Labor

Relations Auth., 873 F.2d 1467, 1468 (D.C. Cir. 1989) (“Perhaps the most important

protections enjoyed by the competitive service are those—set forth in chapters 43 and

75 of the Act—which buffer the prospect of discipline or discharge.”); see also Prof’l

Airways Sys. Specialists, MEBA, AFL-CIO v. Fed. Labor Relations Auth., 809 F.2d 855,

858 (D.C. Cir. 1987) (“Legally mandated collective bargaining provide s an orderly

vehicle for the formal articulation of competing positions so, if successful, a more

universally agreeable course of action may eventuate.”).

This all demonstrates that even though the Orders touch upon only selected

matters among the myriad topics that negotiators purportedly seek to addres s during the

federal collective bargaining process (see Hr’g Tr. at 122:6–13 (defense counsel

contending that “ I have a long, long list of things that would [still] be negotiable in

98 that respect”)), these particular provisions have a substantial impact on the scope of the

right to bargain under the FSLMRS. As the D.C. Circuit recognized, the scope of

bargaining under the FSLMRS is actually quite “narrow” to begin with, when compared

to what labor and management negotiate over in the private sector, Chertoff, 452 F.3d at

860, so it stands to reason that almost any attempt to shrink the otherwise generally

accepted and traditional scope of bargaining rights under the FSLMRS can quickly

render such an effort suspect from the standpoint of the boundaries that Congress has

constructed, id. at 858 (suggesting that the point in which management is “not even

giv[ing] an illusion of collective bargaining” comes fast in the federal bargaining

process). Even with respect to one carveout in the Chertoff case—the permissive

bargaining matters under section 7106(b)(1) of Title 5 of the United States Code—the

Circuit has made no bones about the fact that the scope of the right to bargain can be

“critical[ly]” restricted. See id. at 862; see also, e.g., U.S. Dep’t of the Navy, Naval

Aviation Depot, Cherry Point, N.C., 952 F.2d at 1439 (finding that the removal of

“mandatory subjects of bargaining,” such as matters relating to official time, grievance

procedures, employee performance, and the methods of collective bargaining,

“impermissibly restricts collective bargaining at its core”). The Orders before this

Court require the carveout of the FSLMRS’s permissive bargaining topics, too, and—in

terms of actual practical effect—so much more. 16

16 Because the above analysis invalidates section 4(a)(v) of the Official Time Order, which is the only Order provision to which the Unions’ First Amendment claim related, it is unnecessary for this Court to consider the Unions’ claims that section 4(a)(v) of the Official Time Order violates the Unions’ First Amendment right to freely associate. (See AFGE’s Mem. at 15–19; AFGE’s Reply at 31–34; AFSCME’s Mem. at 31–36; AFSCME’s Reply at 10–15.)

99 Certain Provisions Of The Executive Orders Impede The Prospect Of Good Faith Negotiations

Sections 5(a) and (e) of the Collective Bargaining Procedures Order, section 3(a)

of the Official Time Order, and section 3 of the Removal Procedures Order, create a

new series of norms and default bargaining positions, and in this Court’s view, these

standards prevent federal agency representatives from bargaining with labor

organizations “in good faith,” consistent with their duty under the FSLMRS. See 5

U.S.C. §§ 7103(a)(12), 7114(b).

First of all, several of these provisions tell the agencies —at the outset—what

should “ordinarily” happen with respect to certain negotiable terms and negotiatio n

processes during the course of collective bargaining. Section 5(a) of the Collective

Bargaining Procedures Order, for example, provides that “ordinarily” agencies shall

only devote a certain amount of time to negotiating the ground rules for a collective

bargaining process (no more than six weeks) or to hammering out the terms of a final

collective bargaining agreement (between four to six months). Exec. Order No. 13,836

§ 5(a). Section 3(a) of the Official Time Order similarly prescribes that agencies

should “ordinarily” not agree to provide unions with more than one hour of official time

per union member employed with the bargaining agency, in the aggregate. Exec. Order

No. 13,837 § 3(a). And section 3 of the Removal Procedures Order instructs agenc ies

that they should, “[w]henever reasonable[,]” endeavor to exclude from the negotiated

grievance procedures any issues relating to an employee’s removal for misconduct or

unacceptable performance. Exec. Order No. 13,839 § 3.

Given the rights that the FSLMRS confers, such preconceived notions of the

‘ordinary’ length of negotiations or the standard amount of official time to be

100 authorized, are unwarranted, and ultimately unduly restrictive, because there is no such

thing as a typical collective bargaining agreement with respect to each of these terms—

all of these matters concern negotiable conditions of employment or negotiated

procedures for collective bargaining, as the FLRA has recognized. See Dep’t of the Air

Force Base, Fla., 2016 WL 3548040 at *13 (amount of official time); U.S. Dep’t of the

Treasury, Internal Revenue Serv., Wash, D.C., 64 F.L.R.A. 426, 432 (2010) (timelines);

Vt. Air Nat’l Guard, Burlington, Vt., 9 F.L.R.A. at 740–41 (scope of grievance

procedures).

Furthermore, these norm-setting provisions of the executive orders at issue each

contain an implicit enforcement mechanism that effectively transforms the se norms

from fashionable “aspirations,” merely to be tried on and thoughtfully pondered during

the course of negotiations (Defs.’ Mem. at 41), into an impermeable straightjacket. In

this regard, each Order first announces the endpoint that the agency must strive to

achieve in the “ordinar[y]” course of things, or whenever it is “reasonable” for the

agency to do so. Exec. Order No. 13,836 § 5(a); Exec. Order No. 13,837 § 3(a); Exec.

Order No. 13,839 § 3. Then, across the board, these provisions indicate that

“[a]gencies shall commit the time and resources necessary” to achieve these objectives.

Exec. Order No. 13,836 § 5(a); Exec. Order No. 13,837 § 3(a); Exec. Order No. 13,839

§ 3. And, in the unlikely event that the agency somehow fails to bring all of its

resources to bear upon the assigned task of browbeating the union into accepting the

stated term in the context of any negotiation, it must either bring the matter to

mediation and then to the Federal Impasse Panel, see Exec. Order No. 13,836 § 5(a)

(regarding ground-rule negotiations), or must explain to the “President [of the United

101 States] through the Director of the Office of Personnel Management” why the agency

relented, and thereby, shamefully, failed to achieve the goal, Exec. Order No. 13,837

§ 3(b); Exec Order No. 13,839 § 3.

This Court has no doubt that the net effect of these provisions is to put an entire

hand on the scale with respect to certain negotiable provisions of a collective

bargaining agreement before negotiations even begin (never mind the thumb), and to

require agency negotiators to cut off any digits that union representatives might seek to

extend in the hopes of reaching an agreement on these particular issues. In effect,

agency negotiators are told that they must enter into the negotiating arena wielding

predetermined goals, and must be prepared to fight to the death on these prescribed

issues, in a manner that, in this Court’s view, is not meaningfully susceptible to the

open “give and take” negotiating process that the duty to bargain in good faith

anticipates. Fed. Aviation Admin. Nw. Mountain Region Seattle, WA , 14 F.L.R.A. at

672. Indeed, “[s]ection 7114(b) of the [FSLMRS] obligates” agencies and unions “to

send representatives to the bargaining table who are fully authorized to discuss and

negotiate over any condition of employment.” Am. Fed. of Gov’t Emps., Local 1916, 64

F.L.R.A. 1171, 1172 (2010) (emphasis added). But the norm-setting sections of these

Orders effectively remove full negotiation authority from agency officials in the

covered circumstances, and rather than seeking to promote the “open mind” approach to

collective bargaining negotiations that the FSLMRS unquestionably promotes,

Amalgamated Transit Union Int’l AFL–CIO, 767 F.2d at 949 (internal quotation marks

and citation omitted), these challenged provisions of the Orders require the following of

agency negotiators: to commit to keeping the presumptive positions in the forefront of

102 their consciousness; to dedicate all the time and resources necessary to achieving these

positions; and to answer to the Director of OPM and the President of the United States

about their failed negotiating strategy, if, in some unlikely scenario, they cannot secure

the desired result.

Under the FSLMRS, the collective bargaining process is not a c utthroat death

match. Cf. Nat’l Labor Relations Bd. v. Katz, 369 U.S. 736, 747 (1962) (suggesting

that behavior that “in effect . . . reflects a cast of mind against reaching agreement” is

inconsistent with good-faith bargaining (emphasis added)). Quite to the contrary,

Congress explicitly called for open-mindedness, civility, and sincere mutual effort when

it directed agency and labor representatives to bargain “in good faith.”

Section 5(e) of the Collective Bargaining Procedures Order conflicts with the

duty of good faith bargaining for a similar reason. That executive order provision

provides that, with respect to the manner of bargaining, agencies “shall request the

exchange of written proposals” and “should, at the soonest opportunity, take steps” to

remove any other approach to collective bargaining from current collective bargaining

agreements or collective bargaining ground rules. Exec. Order No. 13,836 § 5(e). Even

a mere “request” to conduct collective bargaining negotiations entirely on paper (and

especially pursuant to changed agency rules requiring this result) risks altering the

fundamental nature of the fair and flexible bargaining process that the FSLMRS

guarantees, for collective bargaining negotiations are supposed to involve flexible

exchanges between knowledgeable institutional actors who meet regularly to try to

come to an agreement. 5 U.S.C. § 7114(a)(4). The requested robotic exchange of

written proposals suggests that the kind of direct and personal contact that has to occur

103 when negotiators are seated around a metaphorical table, discussing workplace

conditions, is not welcomed; moreover, it surely discourages the type of “give and take”

among equals that the negotiating process of the FSLMRS demands. See Fed. Aviation

Admin. Nw. Mountain Region Seattle, WA, 14 F.L.R.A. at 672. 17

What is more, a written-proposal request carries with it the implicit assertion that

the requestor (the agency representative) himself does not have “full” authority to

commit or to comment about union proposals, see Am. Fed. of Gov’t Emps., Local 1916,

64 F.L.R.A. at 1172. Instead, his apparent task is to compile a record of union

suggestions in a format that other agency officials (folks who are not otherwise engaged

in the negotiations) can review. See, e.g., Exec. Order. 13,836 § 5(e) (stating that this

provision will “facilitate resolution of negotiability issues and assess the likely effect of

specific proposals”). While having a comprehensive listing of all that has ever been

offered might well make the supervision of an individual agency negotiator’s game-time

strategy decisions easier, see, e.g., Exec. Order No. 13,837 § 3(a), it is also

unquestionably constraining (e.g., of a piece with the substantive negotiating

restrictions described above) from the standpoint of the government official who is

charged with the responsibility of negotiating in good faith.

Notably, section 5(e) of the Collective Bargaining Procedures Order not only

introduces an element of inflexibility into the process of negotiating that is antithetical

to the good faith negotiations that the FSLMRS guarantees, but it also expressly

prevents negotiation over whether or not proposals must be made in writing—which is

17 With respect to the same matter, “rigidity” and “fluidity” are opposing concepts. See, e.g., Paul J. Hagerman, Flexibility of RNA, 26 Ann. Rev. of Biophysics and Biomolecular Structure 139 (1997) (examining the helix and nonhelix components of RNA).

104 an otherwise negotiable term of a collective bargaining agreement. See 5 U.S.C.

§ 7114(a)(4). (See also AFSCME’s Reply at 19.) Consequently, in terms of FSLMRS

transgressions, this provision of the Order comes up snake eyes, as it has the unenviable

distinction of patently conflicting with both the duty to bargain and the duty to

negotiate in good faith. (See Part IV.D.2, supra.)

Defendants’ Best ‘No-Conflict’ Counterarguments Are Meritless

In their briefs and during the hearing, Defendants made a host of compelling

counterarguments, but upon reflection, none of them effectively counters this Court’s

conclusion that the challenged provisions of the Orders described above exceed the

President’s statutory authority because they conflict with the letter and the spirit of the

FSLMRS. (See Part IV.D.2 and 3, supra.) Only two of Defendants’ contentions are

worth addressing here. 18

a. The Specious Section 7117 Suggestion

Defendants vigorously maintain that the President has the statutory authority to

issue the challenged executive order provisions notwithstanding any conflict with the

tenets of FSLMRS—and, in fact, that the President has explicit authorization to

contradict Congress—because the Orders qualify as “Government-wide rule[s]” under

section 7117(a)(1). To hear Defendants tell it, the following statutory statement

provides the window through which Congress has permitted the President to toss any of

the other labor relations mandates that Congress has made:

[T]he duty to bargain in good faith shall, to the extent not inconsistent with any Federal law or any Government-wide rule 18 To the extent that Defendants’ briefs make the argument that what the President set out to do with these Orders was to regulate the conduct of federal employees and agencies (see, e.g., Defs.’ Mem. at 49), the Court notes that Defendants have also maintained that the Orders were “designed to promote more efficient and effective approaches to federal -sector collective bargaining and labor -management relations” (id. at 17). In this Court’s view, Defendants cannot have it both ways.

105 or regulation, extend to matters which are the subject of any rule or regulation only if the rule or regulation is not a Government - wide rule or regulation.

5 U.S.C. § 7117(a)(1). (See Defs.’ Reply at 21 (characterizing Collective Bargaining

Procedures Order section 6, Official Time Order sections 4(a) and (b), and Removal

Procedures Order section 4 as “a lawful exercise of the President’s authority to issue

consistent rules across the federal workforce”).)

The strangeness of Defendants’ contention that, in the context of a statute that

Congress has crafted to protect workers’ rights to good-faith collective bargaining,

Congress intended to confer upon the President the power to issue executive orders that

nullify those protections, cannot be overstated. A plain, compelling, and entirely

reasonable alternative explanation for the statute’s language carving-out “Government-

wide rule[s] or regulations” is that government-wide standards sometimes relate to

various terms and conditions of employment in the civil service. See, e.g., Nat’l Fed’n

of Fed. Emps., Local 2015, 41 F.L.R.A. 1158, 1185–86 (1991) (concerning President

Ronald Reagan’s Drug-Free Workplace Executive Order). And section 7117 merely

clarifies that any such requirement naturally has to be applied to federal workers, so, as

a result, such government-wide rules must be excluded from the scope of collective

bargaining. See 5 U.S.C. § 7117(a)(1). This is the simplest, narrowest, and most

straightforward reading of the plain text of the section 7117(a)(1) exemption from

bargaining. By contrast, Defendants employ an analysis that is akin to verbal jujitsu:

their first move is to contend that the President can certainly issue executive orders that

qualify as “government-wide rules” (Defs.’ Reply at 20–21); then, they confidently

maintain that the President has the authority to opt to make such governm ent-wide rules

106 apply to federal-sector labor relations “in a specific way” (id. at 23 (internal quotation

marks, italics, and citation omitted). For the grand finale, they reason that clearly

Congress must have intended for the President to employ this power to impact federal

sector labor relations by taking select matters off the collective bargaining table

nationwide per the language of section 7117, because that provision plainly states that

“matters which are the subject of any rule of regulation” that qualifies as “a

[g]overnment-wide rule or regulation” (read: any executive order the President wishes

to craft) are necessarily exempted from good-faith bargaining (id. at 20–23).

In so arguing, Defendants have (voila!) made a distracting shiny object out of an

otherwise entirely unremarkable statutory exemption. But this Court has kept its focus

on Congress’s stated “findings and purposes,” which provide clear context for the

statute in which section 7117 is nestled. As has by now been said repeatedly, Congress

enacted the FSLMRS to protect and preserve collective bargaining rights, not to destroy

them. Thus, what Defendants’ section 7117 analysis has not answered—and cannot

answer—is why an exception to collective bargaining principles that allows the

President (or any other agency official, for that matter) to pick off any of the mandatory

or permissive topics of negotiation that Congress took care to delineat e in the FSLMRS,

and put it into the management rights (non-negotiable) bundle, would ever be inserted

in this statute? Defendants attempt to distract from this fundamental unanswered

inquiry by providing a detailed discussion of the reason why the scope of its favored

interpretation is actually less expansive than its implications might suggest. ( See, e.g.,

id. at 22 (emphasizing the “narrowness” of a conclusion that the President is authorized

to “direct the exercise of existing management prerogatives in a specific way, so that

107 particular subjects or appropriate arrangements are identified as inappropriate topics of

bargaining” (emphasis in original) (internal citation and quotation marks omitted)).)

But with respect to the actual question at issue, the silence is deafening; there is no

rational explanation for Defendants’ suggestion that Congress would have intended for

the President to have the power to act in this fashion at all in regard to the matters that

the FSLMRS specifically characterizes as negotiable. Quite frankly, it is hard to even

imagine a rational statutory exception that is intentionally designed to swallow the rule.

Not surprisingly, the D.C. Circuit has confirmed that government officials are

not permitted to issue government-wide regulations “that merely restate[] a statutorily

guaranteed prerogative of management” in order to “render a bargaining proposal

nonnegotiable when the underlying statutory prerogative does not do so[.]” Office of

Pers. Mgmt. v. Fed. Labor Relations Auth., 864 F.2d 165, 166 (D.C. Cir. 1988). Put

another way, contrary to Defendants’ assertions, the government cannot use section

7117(a)(1) to “circumvent” other portions of the FSLMRS. Id. at 168; see also Equal

Emp’t Opportunity Comm’n v. Fed. Labor Relations Auth., 744 F.2d 842, 853 (D.C. Cir.

1984). Yet, that is precisely what Defendants say Congress has authorized the

President to do, when they press the section 7117 argument here. That is, rather than

asking this Court “to give [the] statute the most harmonious, comprehensive meaning

possible, and not to impute to Congress a purpose to paralyze with one hand what it

sought to promote with the other[,]” Office of Pers. Mgmt., 864 F.2d at 168 (internal

quotation marks and citations omitted), Defendants insist that, pursuant to section 7117,

the President has the authority to “lawfully prescribe Government -wide rules that have

the effect of removing subjects from the scope of collective bargaining[,] as he has

108 done here” (Defs.’ Reply at 20). But in the words of the D.C. Circuit, “[i]t strains

plausibility to assert . . . that Congress could have made statements in support of”

collective bargaining and the various rights conferred throughout the FSLMRS “while

simultaneously fashioning an omnipotent veto mechanism in the form of government -

wide regulations[.]” Office of Pers. Mgmt., 864 F.2d at 170.

U.S. Department of the Treasury, IRS v. Federal Labor Relations Authority, 996

F.2d 1246 (D.C. Cir. 1993), is not to the contrary. (See, e.g., Defs.’ Mem. at 36–38;

Defs.’ Reply at 22–23.) In IRS, the D.C. Circuit concluded that an OMB circular

directing agencies in the exercise of their prerogatives under the management rights

section of the FSLMRS qualified as a government-wide rule under section 7117. See

996 F.2d at 1250–51. The circular at issue addressed the implementing “agency’s own

internal appeal system,” id. at 1248, and in characterizing the circular’s tenets as a

“government-wide rule” that was exempted from bargaining under section 7117, the

Circuit observed that the union could not reasonably rely on the “general right to

grieve” under the FSLMRS to demand that the agency commence bargaining over

appeal processes, notwithstanding the circular, id. at 1251. This holding made

imminent sense, and was entirely consistent with Office of Personnel Management,

because the circular was directed at agency appeals, and not the collective bargaining

process. See Office of Pers. Mgmt., 864 F.2d at 170 (explaining that section 7117(a)(1)

may be used to “direct[] the exercise of existing management prerogatives in a specific

way, so that particular subjects or appropriate arrangements are identified as

inappropriate topics of bargaining”). In other words, the circular’s policy

pronouncement was not designed to thwart collective bargaining rights; at most, it had a

109 merely incidental effect on workers’ collective bargaining rights. Nothing in the IRS

case, or in any other case involving section 7117 that Defendants have cited, authorizes

direct regulation of the scope of bargaining through the adoption of government-wide

rules. See, e.g., U.S. Dep’t of the Navy v. Fed. Labor Relations Auth., 665 F.3d 1339,

1347 (D.C. Cir. 2012) (appropriations law preventing bargaining over the provision of

free bottled water); Overseas Educ. Ass’n, 827 F.2d at 816–17 (State Department

regulations regarding overseas employees prohibited negotiating over employment

benefits).

Even if section 7117(a)(1) could be used to regulate collective bargaining

directly in the way that Defendants suggest, it cannot seriously be maintained that

Congress has authorized the President to abrogate the right to “bargain collectively” as

the challenged provisions of the Orders do here. See IRS, 996 F.2d at 1251 (observing

that “some important limitations on the government’s ability to diminish the scope of

collective bargaining through government-wide regulations” exist). To read section

7117 to permit the President to trump the statutory right to “bargain” would elevate

7117(a)(1) far above sections 7101(a), 7102(2), and 7103(a)(12), in a manner that

dwarfs Congress’s clear efforts to guarantee this right. Cf. Chertoff, 452 F.3d at 861

(“The problem with . . . the Government’s arguments . . . is that they elevate one

provision of the [statute] over another[.]”). Defendants appear to admit that the

President does not have that power. (See Defs.’ Reply at 31 (admitting that there exist

“statutory limitations on the President’s authority to act in this area”).) But the irony of

their section 7117 argument—i.e., that in the context of a statute that was motivated in

large part by Congress’s belief that it was necessary to protect federal collective

110 bargaining processes from the vagaries of rogue presidential action (see Part IV.C.,

supra), Congress intended to insert an exception that authorized the President to target

and eliminate workers’ statutory bargaining rights—seems to be lost on them.

b. The Mistaken ‘Mere Guidance’ Characterization

The other ‘no conflict’ argument that merits discussion is Defendants’ repeated

suggestion that many provisions in these Orders merely provide goals for agencies to

strive towards, and therefore cannot conflict with the FSLMRS by nature. (See Defs.’

Mem. at 46 (suggesting that orders that do not constitute “hard -and-fast rules” cannot

conflict with the substantive rights conferred by statute) .) This counterargument also

fails to carry the day. Even if such provisions are “deliberately flexible[,]” and ev en if

nothing “precludes [agencies] from” deviating from the “objectives” within these

provisions (id.), such directives can violate the duty to bargain in good faith that the

FSLMRS prescribes nevertheless, and for the reasons laid out in Part IV.D.3, they do

so.

Defendants’ argument fails to appreciate that the conflict at issue with respect to

these provisions is not in identifiable tension with a particular substantive requirement

over which agencies and unions must bargain (as is the case with the right to bargain

transgressions (See Part IV.D.2, supra).) Rather, for the purpose of this Court’s

analysis, the relevant conflict is the distinct (and admittedly general) statutory

obligation that the parties must undertake to negoti ate in “good faith[.]” 5 U.S.C.

§ 7114(b). In other words, with respect to these types of provisions, the nature of the

President’s order (i.e., whether he seeks to give guidance as opposed to laying down a

hard-and-fast rule) makes no difference; instead, the key question is whether these

suggestions impair the ability of agency officials to keep an open mind, and to

111 participate fully in give-and-take discussions, during collective bargaining negotiations.

See id.; see also United Steelworkers of Am., 983 F.2d at 245 (defining the duty of good

faith). This Court has concluded that the guidance the President has provided to federal

agency negotiators in the context of the Orders does just that. (See Part IV.D.3, supra.)

Finally, it makes no difference that the President’s guidance in the context of

these challenged Order provisions is packaged with “repeated directives that agencies

must continue to meet their statutory duty to bargain in good faith.” (Defs.’ Mem. at

73; see also id. at 45–46; 50–52.) See Exec. Order No. 13,836 § 5(a); Exec. Order No.

13,837 § 3(a); Exec. Order No. 13,839 § 3. That command does not abate the conflict,

for, as Part IV.D.3 explains, prescribing specified goals and suggesting fixed outcomes,

while simultaneously flashing the coercive implement of mandatory reporting

requirements, wreaks a kind of damage with respect to the negotiati ng mindset of

agency officials that a subsequent, generalized ‘follow the law’ directive simply can’t

undo.

As the D.C. Circuit has recognized, “it takes more than mere surface bargaining”

for a party to act in good faith “for purpose[s] of collective bargaining.” Cap Santa

Vue, Inc. v. Nat’l Labor Relations Bd., 424 F.2d 883, 889 (D.C. Cir. 1970) (internal

quotation marks and citation omitted). And this Court has already found that, with

respect to the matters at issue, the suggested policies in the challenged executive order

provisions pay only lip service to the statutory duty to bargain in good faith. ( See Part

IV.D.3, supra.) Having essentially demanded that agency representatives seek specific

ends, and use specific means, in a manner that prevents full and open collective

bargaining negotiation, the Orders cannot be saved due to their clever (albeit internally

112 inconsistent) directive that, notwithstanding these suggestions, an agency negotiator

should nevertheless act in the manner that the FSLMRS requires. Cf. Cap Santa Vue,

424 F.2d at 889 (“[B]ad faith is prohibited though done with sophistication and

finesse.” (internal quotation marks and citation omitted)).

The Remaining Challenged Provisions Of These Executive Orders Are Legitimate Exercises Of The President’s Authority

This Court now arrives at the final stop in the epic journey of consideration that

the parties’ various claims and arguments have required it to make. Here, the Court

reaches the clear conclusion that not each and every provision that the Unions challenge

within the Orders runs afoul of a right protected within the FSLMRS or within the CSRA.

For example, with respect to the Unions’ claim that section 5(c) of the Collective

Bargaining Procedures Order is an unauthorized exercise of presidential power (see

AFSCME’s Mem. at 28–29), the Court discerns no conflict with the FSLMRS. This is

because Section 5(c) merely provides that, if union representatives delay or impede

negotiations in bad faith, federal agency representatives shall only “consider” filing an

unfair labor practice or unilaterally implementing a proposal. Exec. Order No. 13,836

§ 5(c). The FSLMRS plainly authorizes such filings in appropriate situations, and

nothing in the Order requires agencies to take steps incompatible with that statutory

authorization. See 5 U.S.C. § 7116(b)(5); U.S. Dep’t of the Justice, Immigration &

Naturalization Serv., 55 F.L.R.A. 892, 904 (1999) (explaining that an agency may

implement changes unilaterally if “implementation is necessary for the functioning of

the agency”). Thus, contrary to the Unions’ suggestion (see AFSCME’s Mem. at 28–

29), this Order provision does not contradict the statute.

Nor do section 2(j) of the Official Time Order or section 2(c) of the Removal

113 Procedures Order (see NTEU’s Mem. at 31–34; AFGE’s Mem. at 20–21), present

statutory conflicts. These provisions are little more than general statements that define

other terms in the Orders, or they espouse abstract policy principles that are too

generalized to dictate particular outcomes. See, e.g., Exec. Order No. 13,837 § 2(j)

(defining the phrase “union time rate”); Exec. Order No. 13,839 § 2(c) (remarking, inter

alia, that “[e]ach employee’s work performance and disciplinary history is unique, and

disciplinary action should be calibrated to the specific facts and circumstances of each

individual employee’s situation”); see also id. § 7 (referring to the items under section

2 as “policies” as compared to the “requirements” in other sections). Such statements

do not have any independent operative legal effect. Cf. Sierra Club v. Envt’l Prot.

Agency, 873 F.3d 946, 951 (D.C. Cir. 2017) (“Policy statements are binding on neither

the public nor the agency, and the agency retains the discretion and the authority to

change its position[.]” (internal quotation marks and citation omitted)). Therefore, it is

unclear whether the Unions have Article III standing to challenge these types of

provisions, standing alone. See Lujan, 504 U.S. at 560 (standing requires “an invasion

of a legally protected interest”); id. at 561 (stating that plaintiffs must set forth

“evidence” demonstrating, via “specific facts[,]” the elements of Article III standing) .

Regardless, any challenge to the President’s expression of such abstract policy views

about ‘progressive discipline’—a topic that the FSLMRS commits entirely to the

discretion of management (see infra)—would necessarily fail on the merits.

The Unions have challenged section 4(b)(iii) of the Removal Procedures Order,

which specifically informs federal agencies that they must refuse to bargain over any

proposal “that limits the agency’s discretion to remove an employee from Federal

114 service without first engaging in progressive discipline[,]” Exec. Order No. 13,839

§ 4(b)(iii), but this Court agrees with Defendants that this particular provision lines up

with the FSLMRS. Section 7106(a)(2) of Title 5 of the United States Code specifically

exempts from the duty to bargain in good faith issues regarding the power of

management “to suspend, remove, reduce in grade or pay, or take other disciplinary

action against [agency] employees[.]” 5 U.S.C. § 7106(a)(2)(A). In addition, the

FLRA has considered such a policy prescription, and has determined that a proposal

that requires an agency “to administer discipline in, among other things, a progressive

and consistent manner” need not be bargained over, because “[r]estrictions on an

agency’s ability to choose the specific penalty to impose in disciplinary actions directly

interfere with management’s right to discipline employees under section 7106(a)(2)(A)

of the [FSLMRS].” Am. Fed. of Gov’t Emps., AFL-CIO, Local 3732, 39 F.L.R.A. 187,

198 (1991); see also Patent Office Prof’l Ass’n, 47 F.L.R.A. 10, 53–54 (1993)

(concluding that a system of “progressive discipline” was nonnegotiable under section

7106(a) of Title 5 of the United States Code). As a result, and due to the Chevron

deference the FLRA receives, the Unions’ challenges to this provision (see AFSCME’s

Mem. at 19; NFFE’s Mem. at 36), have no merit.

The Unions’ challenges to section 4(c) of the Official Time Order and section 7

of the Removal Procedures Order are similarly deficient. (See NFFE’s Mem. at 34–35,

40; AFSCME’s Mem. at 37.) Congress has clearly vested OPM with the authority to

“execut[e], administer[], and enforc[e] the civil service rules and regulations of the

President and the Office and the laws governing the civil service[,]” 5 U.S.C.

§ 1103(a)(5)(A), and with the authority to “aid[] the President, as the President may

115 request, in preparing such civil service rules as the President prescribes,” id.

§ 1103(a)(7). This Court has already explained that the President himself has the

authority to issue executive orders within the sphere of federal labor -management

relations (see Part IV.C., supra), and he also has the undisputed authority to “empower

the head of any department or agency[,]” including OPM, to perform “any function

which is vested in the President by law,” 3 U.S.C. § 301. Thus, given the multiple

wellsprings of authority that OPM enjoys in this area, OPM can surely receive

directions from the President to promulgate regulations that are consistent with the

rights and duties that the FSLMRS or CSRA prescribe, and setting aside the invalidity

of some of the underlying substantive mandates, OPM ’s implementation of the Orders

themselves appears to be all that section 4(c) of the Official Time Order and section 7

of the Removal Procedures Order require.

Finally, one of the Unions has raised a constitutional Take Care Clause claim

against Defendants; at this point, the contention seems to be that, even if the Court

finds that the remaining executive order provisions do not create statutory conflicts with

the FSLMRS, these provisions, too, must be enjoined as a violation of the President’s duty

to “take care that the laws be faithfully executed.” (AFSCME’s Mem. at 10 (“This

clause commands that the President shall execute this duty with ‘care’ and ‘faithfully’;

this duty is therefore one of good faith towards Congressional statutes[.]”).) At bottom,

this argument suggests that the manner in which the President has interpreted and

enforced the FSLMRS and the CSRA has not been in good faith, and thus, his act of

issuing these Orders violates the Constitution’s Take Care Clause. (See id. at 10–11.)

As an initial matter, it is not at all clear that a claim under the Take Care Clause

116 presents a justiciable claim for this Court’s resolution. See Citizens for Responsibility

and Ethics in Wash. v. Trump, 302 F. Supp. 3d 127, 138–40 (D.D.C. 2018) (debating

the justiciability of such claims). But even “assuming [that] some universe of viable”

and justiciable “Take Care Clause claims exists,” id. at 140, the claim that AFSCME

raises here has not been plausibly asserted, much less established, and thus cannot be

sustained. AFSCME merely alleges that the President cannot “dispense with the

requirement of good faith negotiations” and must “act in good faith in executing the

statute himself[.]” (See AFSCME’s Mem. at 16–17.) But the instant record contains no

evidence of intentional bad-faith decisionmaking on the part of the President. And

absent such evidence (or at least some indication that the Orders issued here exceed the

statutory authority of the President in a manner that clearly implicates his constitutional

duties and prerogatives that AFSCME says apply)—this Court will decline to hold that

there has been a Take Care Clause violation. See Dalton, 511 U.S. at 472 (“Our cases

do not support the proposition that every action by the President, or by another

executive official, in excess of his statutory authority is ipso facto in violation of the

Constitution. On the contrary, we have often distinguished between claims of

constitutional violations and claims that an official has acted in excess of his statutory

* * *

The end is nigh. As explained in Part IV.D of this Memorandum Opinion, many

of the challenged provisions of the President’s Orders constitute an improper exercise

of his statutory authority to regulate federal employee labor relations, because they

conflict with the right to good-faith collective bargaining that the FSLMRS seeks to

117 protect. The Orders that the President issued on May 25, 2018, and that have been

evaluated extensively in this Opinion, will not be invalidated in toto, however, given

the President’s clear intent that any invalid provisions within these orders should be

severable from the rest. See, e.g., Exec. Order No. 13,837 § 9(f); Exec. Order No.

13,839 § 8(e); cf. Ass’n of Am. R.R. v. U.S. Dep’t of Transp., et al., 896 F.3d 539, 544

(D.C. Cir. 2018) (“[T]he remedy should be no more severe than ne cessary to cure the

disease.”). Furthermore, the Court has concluded that the challenged provisions of the

Orders that are addressed herein in Part IV.E are not invalid. Thus, along with the

unchallenged parts of the Orders, these provisions remain.

V. CONCLUSION

In their cross-motion for summary judgment, Defendants assert that the fact “that

the President’s policy choices about how best to guide the conduct of e mployees in the

Executive Branch do not align with Plaintiffs’ own policy preferences is not a proper

basis for seeking judicial review.” (Defs.’ Mem. at 71.) This is undoubtedly true. But

the core claim that the Unions make in the context of the instant case is that the

President’s policy choices as reflected in the challenged executive orders do not align

with the policy preferences of Congress, and in this Court’s view, that contention is

undoubtedly true as well.

In short, there is no dispute that the principle mission of the FSLMRS is to

protect the collective bargaining rights of federal workers, based on Congress’s clear

and unequivocal finding that “labor organizations and collective bargaining in the civil

service are in the public interest.” 5 U.S.C. § 7101(a). Congress did not intend for

union challenges to the validity of executive orders that threaten such collective

118 bargaining rights to be funneled to the FLRA. And upon exercising its subject-matter

jurisdiction over the ripe claims that the Unions bring here, this Court has concluded

that, although the President has the authority to issue executive orders in the realm of

federal labor relations, many of the challenged provisions of the Orders at issue here

effectively reduce the scope of the right to bargain collectively as Congress has crafted

it, or impair the ability of agency officials to bargain in good faith as Congress has

directed, and therefore cannot be sustained.

As a result, and as set forth in the accompanying Order, this Court will declare

the following provisions invalid, and will enjoin the President’s subordinates from

implementing or giving effect to: Executive Order 13,836 §§ 5(a), 5(e), 6; Executive

Order 13,837 §§ 3(a), 4(a), 4(b); and Executive Order 13,839 §§ 3, 4(a), 4(c). What

remains— Executive Order 13,836 § 5(c); Executive Order 13,837 §§ 2(j), 4(c); and

Executive Order 13,839 §§ 2(b), 2(c), 4(b)(iii), 7—are the few challenged directives

that have neither reduced the scope of protected collective bargaining rights nor

hampered good faith bargaining, and, thus, cannot be said to conflict with the FSLMRS.

Furthermore, given these conclusions, the parties’ various cross -motions for summary

judgment are GRANTED IN PART AND DENIED IN PART.

DATE: August 25, 2018 Ketanji Brown Jackson KETANJI BROWN JACKSON United States District Judge