Service Employees International Union Local 200United v. Trump, 419 F.Supp.3d 612

Background:

Plaintiffs SEIU Local 200United and SEIU challenged three May 25, 2018 Executive Orders (Collective Bargaining Order; Official Time Order; Removal Procedures Order) regulating federal labor-management relations.
OPM issued July 2018 Guidances implementing the EOs, later rescinded during D.C. district-court litigation and reissued after that litigation concluded; President issued a memorandum on the EOs on Oct. 11, 2019.
The D.C. district court initially enjoined nine EO provisions as inconsistent with the CSRA; the D.C. Circuit later vacated that judgment for lack of subject-matter jurisdiction (AFL-CIO litigation).
Plaintiffs sought a TRO (denied Oct. 3, 2019) and a preliminary injunction (denied Dec. 10, 2019) to block OPM and the President from implementing the EOs/Guidances.
The district court treated the EOs as presidential regulations under 5 U.S.C. § 7301, viewed OPM’s Guidances as interpretive, and concluded it lacked jurisdiction over Plaintiffs’ substantive APA challenges (channeling those matters to the FLRA under the Thunder Basin framework).

Issues:

Issue	Plaintiff's Argument	Defendant's Argument	Held
Legal force of the EOs: are they binding regulations?	EOs are not binding law and cannot be treated as regulations subject to APA interpretation.	EOs issued under 5 U.S.C. § 7301 are presidentially issued regulations and presumptively binding.	EOs are presumptively legally binding under § 7301; Old Dominion and related precedent support that conclusion.
Do OPM’s Guidances require APA notice-and-comment?	Guidances effect legislative changes and thus must undergo APA notice-and-comment.	Guidances merely interpret/summarize legally binding EOs (interpretive rules exempt from notice-and-comment).	Guidances are interpretive summaries of the EOs and not subject to notice-and-comment rulemaking.
Subject-matter jurisdiction over substantive APA claims (must they go to FLRA first)?	Second Circuit tests differ; claims are collateral and judicial review here is necessary and meaningful.	Thunder Basin / CSRA review scheme channels substantive challenges to the FLRA (and related processes); courts lack jurisdiction for pre-enforcement substantive relief.	Court lacks jurisdiction over substantive APA challenges; such claims are channeled to the FLRA under Thunder Basin and AFL-CIO II reasoning.
Preliminary-injunction standard: ‘‘fair ground for litigation’’ vs. likelihood of success	Plaintiffs: government action is unilateral and contrary to statute, so the ordinary (less deferential) standard should apply.	Defendants: EOs are regulations issued under a statutory scheme and entitled to deference; plaintiffs must show likelihood of success.	Court adheres to likelihood-of-success standard (rejects plaintiffs’ argument); plaintiffs failed to meet even the lower standard.

Key Cases Cited

Old Dominion Branch No. 496 Nat'l Ass'n of Letter Carriers, AFL-CIO v. Austin, 418 U.S. 264 (Sup. Ct. 1974) (recognizes § 7301 as express statutory authorization for presidential labor rules).
American Federation of Government Employees, AFL-CIO v. Trump, 318 F. Supp. 3d 370 (D.D.C. 2018) (district court enjoined nine EO provisions under CSRA).
American Federation of Government Employees, AFL-CIO v. Trump, 929 F.3d 748 (D.C. Cir. 2019) (reversed district court for lack of subject-matter jurisdiction).
Thunder Basin Coal Co. v. Reich, 510 U.S. 200 (Sup. Ct. 1994) (statutory-review preclusion analysis and when administrative remedies preclude district-court review).
Tilton v. SEC, 824 F.3d 276 (2d Cir. 2016) (analyzing "meaningful" judicial review and the Thunder Basin factors in Second Circuit context).
Clarry v. United States, 85 F.3d 1041 (2d Cir. 1996) (presidential directives under §§ 3301/7301 can be legally effective; OPM implementation may be interpretive).
Elgin v. Dep't of Treasury, 567 U.S. 1 (Sup. Ct. 2012) (CSRA/administrative scheme can provide meaningful review; appellate review suffices for some claims).