AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO, ET AL., APPELLEES v. DONALD J. TRUMP, IN HIS OFFICIAL CAPACITY AS PRESIDENT OF THE UNITED STATES, ET AL., APPELLANTS
No. 18-5289
United States Court of Appeals FOR THE DISTRICT OF COLUMBIA CIRCUIT
Decided July 16, 2019
Argued April 4, 2019
Joseph F. Busa, Attorney, U.S. Department of Justice, argued the cause for appellants. With him on the briefs were Hashim M. Mooppan, Deputy Assistant Attorney General, and Mark B. Stern, Attorney, U.S. Department of Justice. Sarah Carroll, Attorney, U.S. Department of Justice, entered an appearance.
Andres M. Grajales and Gregory O‘Duden argued the causes for appellees. With them on the joint brief were David A. Borer, Matthew W. Milledge, Larry J. Adkins, Julie M. Wilson, Paras N. Shah, Allison C. Giles, Jessica Horne, Judith E. Rivlin, Teague P. Paterson, Michael L. Artz, Jefferson D. Friday, David Strom, and Suzanne Summerlin. Keith R. Bolek and Richard J. Hirn entered appearances.
Victoria L. Bor, Jonathan D. Newman, Harold C. Becker, Matthew J. Ginsburg, Brian A. Powers, Micah Berul, and Anthony Tucci were on the brief for amici curiae American Federation of Labor and Congress of Industrial Unions,
Mark Gisler and Jean-Marc Favreau were on the brief for amicus curiae Thomas Wolf, Governor of Pennsylvania, in support of appellees. Michael J. Gan entered an appearance.
Adina H. Rosenbaum and Adam R. Pulver were on the brief for amici curiae Representative Elijah Cummings, et al. in support of appellees.
Before: GRIFFITH and SRINIVASAN, Circuit Judges, and RANDOLPH, Senior Circuit Judge.
Opinion for the Court filed by Circuit Judge GRIFFITH.
GRIFFITH, Circuit Judge: In May 2018, the President issued three executive orders regarding relations between the federal government and its employees. Unions representing federal employees brought suit in the district court challenging various aspects of the orders. The district court concluded that certain provisions in the orders were unlawful and enjoined the President‘s subordinates in the executive branch from implementing them. We hold that the district court lacked jurisdiction and vacate its judgment.
I
A
In the 1960s, Presidents used executive orders to grant federal employees “limited rights to engage in concerted activity” through unions. ATF v. FLRA, 464 U.S. 89, 91-92 (1983); see
The Statute grants federal employees the right to organize and bargain collectively, and it requires that unions and federal agencies negotiate in good faith over certain matters. See
The Statute also establishes a scheme of administrative and judicial review. Administrative review is provided by the Federal Labor Relations Authority (FLRA), a three-member agency charged with adjudicating federal labor disputes, including “negotiability” disputes and “unfair labor practice” disputes. See
In May 2018, the President issued three executive orders regarding federal labor-management relations. Among other requirements, the “Collective Bargaining Order” provides agencies with certain procedures that they should seek to institute during negotiations with unions. See
The “Official Time Order” instructs agencies to aim to limit the extent to which collective bargaining agreements authorize “official time,” meaning time spent by employees on union business during working hours. See
The “Removal Procedures Order” tells agencies to seek to exclude from grievance proceedings any dispute over a decision to remove an employee “for misconduct or unacceptable performance.”
Although numerous, the various challenged provisions of the executive orders fall into three categories: provisions that (1) direct agencies to refuse to bargain over “permissive” subjects based on
C
The American Federation of Government Employees (AFGE) and sixteen other federal labor unions immediately challenged the executive orders in four separate suits against the President, OPM, and the Director of OPM. AFGE v. Trump, 318 F. Supp. 3d 370, 391 (D.D.C. 2018). The suits were consolidated before the district court in June 2018. Id. at 392. As explained by the district court, the unions asserted four types of claims: (1) The executive orders are unlawful because the President has no authority “at all” to issue executive orders in the field of federal labor relations; (2) The executive orders violate the Constitution, specifically the Take Care Clause and the First Amendment right to freedom of association;
Some of the unions moved for preliminary injunctions, but all parties ultimately agreed to the district court‘s proposal that the dispute be resolved on cross-motions for summary judgment, litigated on an expedited briefing schedule.
The district court issued its decision in late August 2018. The court first held that it had subject matter jurisdiction, rejecting the government‘s argument that jurisdiction belonged exclusively to the FLRA and (on direct review from the FLRA) the courts of appeals. Id. at 395-409. On the merits, the district court ruled that the President has constitutional and statutory authority to issue executive orders in the field of federal labor relations generally, but nine provisions of these executive orders violated the Statute: Some did so by removing from the bargaining table subjects that “must” or “may” be negotiable, others by preventing agencies from bargaining in good faith. Id. at 412-33. The court enjoined the President‘s subordinates within the executive branch from implementing these provisions. Id. at 440; Order at 2-3, AFGE v. Trump, No. 1:18-cv-01261 (D.D.C. Aug. 24, 2018), Dkt. No. 57.*
The government appealed, arguing that the district court lacked subject matter jurisdiction and erred in holding unlawful the various provisions of the executive orders. We have jurisdiction over the appeal under
II
We reverse because the district court lacked subject matter jurisdiction. The unions must pursue their claims through the scheme established by the Statute, which provides for administrative review by the FLRA followed by judicial review in the courts of appeals.
A
“Within constitutional bounds, Congress decides what cases the federal courts have jurisdiction to consider.” Bowles v. Russell, 551 U.S. 205, 212 (2007). District courts have jurisdiction over civil actions arising under the Constitution and laws of the United States,
Here, the district court concluded that the first step is satisfied. AFGE, 318 F. Supp. 3d at 396-97. The parties do not dispute this conclusion on appeal, nor could they. “With the FSLMRS, as with all of the CSRA: ‘Congress passed an enormously complicated and subtle scheme to govern employee relations in the federal sector.‘” AFGE v. Sec‘y of the Air Force, 716 F.3d 633, 636 (D.C. Cir. 2013) (quoting Steadman v. Governor, U.S. Soldiers’ & Airmen‘s Home, 918 F.2d 963, 967 (D.C. Cir. 1990)). The scheme “provides the exclusive procedures by which federal employees and their bargaining representatives may assert federal labor-management relations claims.” Id. at 638; see AFGE v. Loy, 367 F.3d 932, 935 (D.C. Cir. 2004). Thus, we can fairly discern that Congress intended the statutory scheme to be exclusive with respect to claims within its scope.
The parties’ dispute arises at the second step. There, the district court held that the unions’ claims are not “of the type” Congress intended for review within the statutory scheme. AFGE, 318 F. Supp. 3d at 397-409. We disagree.
B
Claims “will be found to fall outside of the scope of a special statutory scheme in only limited circumstances, when (1) a finding of preclusion might foreclose all meaningful judicial review; (2) the claim[s] [are] wholly collateral to the statutory review provisions; and (3) the claims are beyond the expertise of the agency.” Arch Coal, Inc. v. Acosta, 888 F.3d 493, 500 (D.C. Cir. 2018); see Free Enter. Fund, 561 U.S. at 489; Thunder Basin, 510 U.S. at 212-13. These considerations do not form “three distinct inputs into a strict mathematical formula.” Jarkesy, 803 F.3d at 17. Rather, they serve as “general guideposts useful for channeling the inquiry into whether the particular claims at issue fall outside an overarching congressional design.” Id. In this case, all three considerations demonstrate that the unions must pursue their claims through the statutory scheme and not before the district court.
1
First, “all meaningful judicial review” is not foreclosed by requiring the unions to proceed through the statutory scheme. See Arch Coal, 888 F.3d at 500. The unions argue that the scheme does not provide for meaningful judicial review because they are unable to obtain “pre-implementation” review of the executive orders or immediate relief barring all agencies from implementing the executive orders. This argument is foreclosed by the Supreme Court‘s decision in Thunder Basin and our decision in AFGE v. Secretary of the Air Force, 716 F.3d 633 (D.C. Cir. 2013).
In Thunder Basin, a mining company‘s employees designated two non-employees to serve as their representatives. 510 U.S. at 204. Believing this violated the National Labor Relations Act (NLRA), the company refused to post their contact information. Id. This refusal would ordinarily have drawn a citation from the mine safety agency, but before that could occur, the company filed a pre-enforcement challenge in the district court, arguing that the designation of non-employees as union representatives violated the NLRA. Id. at 204-05, 213-14, 216. The Supreme Court held that the district court‘s jurisdiction was precluded by the statutory scheme, which provided
Air Force provides the same guidance, but more emphatically and in the specific context of the Statute‘s scheme for review. The case began with a regulation requiring certain civilian employees to wear Air Force uniforms. See AFGE v. Sec‘y of the Air Force, 841 F. Supp. 2d 233, 235 (D.D.C. 2012). AFGE and its local unions brought an Administrative Procedure Act (APA) suit in the district court, challenging the regulation as arbitrary and capricious, unlawful under various provisions of Titles 10 and 18 of the U.S. Code, and in excess of the Secretary‘s authority under Title 10. Id. We held that the district court lacked jurisdiction, explaining that the Statute “provides the exclusive procedures by which federal employees and their bargaining representatives may assert federal labor-management relations claims,” and “federal employees may not circumvent” the Statute “by seeking judicial review outside [its] procedures.” Air Force, 716 F.3d at 636, 638 (quoting Steadman, 918 F.2d at 967).
This was so even though AFGE and its local unions could not obtain immediate review of their “pre-implementation” claims before the FLRA, nor could they obtain their preferred form of relief. Instead, the statutory scheme provided the local unions with more modest “administrative options” for challenging the uniform regulation, followed by judicial review in the courts of appeals. Id. at 636-38. For example, a local union could attempt to bargain over the dress code, and if the Air Force refused to bargain, the local union could raise a negotiability dispute with the FLRA. Id. at 637 (citing
In fact, we went even further, holding that the unions were required to raise their challenges through the scheme even if that made it impossible to obtain particular forms of review or relief. The Statute “can preclude a claim from being brought in a district court even if it forecloses the claim from administrative review” and provides no other way to bring the claim. Id. (emphasis added). For example, AFGE did not wish to challenge the uniform regulation on a concrete “local-by-local” basis through the FLRA but rather sought to do so on a “nationwide” basis in an APA suit
We need not determine the extent to which Air Force would allow a statutory scheme to foreclose review and relief. This case does not test Air Force‘s outer bounds because the unions here are not cut off from review and relief. Rather, they can ultimately obtain review of and relief from the executive orders by litigating their claims through the statutory scheme in the context of concrete bargaining disputes.
On the present record, it appears that the Statute provides the unions with several “administrative options” for challenging the executive orders before the FLRA, followed by judicial review. See id. at 637. First, if an agency follows the executive orders’ goal-setting provisions while bargaining with a union, the union could charge in an unfair labor practice proceeding that the agency‘s adherence to those provisions amounted to bad-faith bargaining in violation of the Statute. The FLRA could then determine whether the agency had done so, and whether the agency may continue pursuing those goals during bargaining.
Also, if an agency refuses to bargain over various subjects based on the executive orders’ government-wide rules, the unions could charge in a negotiability or unfair labor practice dispute that the agency had refused to bargain over mandatory matters in violation of the Statute. In response, the government could argue (as it does here) that
The same sequence could occur if an agency refuses to bargain over permissive subjects as directed by the executive orders. The union could charge the agency with violating the Statute, and the government could respond (as it does here) by invoking
These administrative options might enable the unions to obtain from the FLRA much of the review and relief that they sought from the district court. The unions worry that the FLRA cannot address all of their claims, especially their broader claims: that the President acted ultra vires or violated the Take Care Clause, the First Amendment, or the Statute in issuing the executive orders. And the unions argue that the FLRA cannot entertain suits
But we need not map the precise contours of the FLRA‘s authority to adjudicate the claims in this case. For even if the FLRA could not address the claims, circuit courts could do so on appeal from the FLRA. The statutory scheme provides that the courts of appeals “shall have jurisdiction of the [FLRA] proceeding and of the question determined therein” and “may make and enter a decree affirming and enforcing, modifying and enforcing as so modified, or setting aside in whole or in part the order of the [FLRA].”
The unions argue, and the district court concluded, that we would not be able to address such challenges because our jurisdiction is entirely “derivative” of the FLRA‘s. Union Br. 16-18; AFGE, 318 F. Supp. 3d at 400. As the district court put it, the Statute does not authorize us “to hear matters that are beyond the scope of the FLRA‘s jurisdiction,” AFGE, 318 F. Supp. 3d at 400, because it merely grants us jurisdiction over the FLRA “proceeding” and “the question determined therein” and authorizes us to affirm, modify, or set aside only the FLRA‘s order, id. (quoting
Likewise, Sturm, Ruger & Co. v. Chao, 300 F.3d 867, 868 (D.C. Cir. 2002), involved a statute that used the same language to empower us to review the orders of the Occupational Safety and Health Review Commission, see
This conclusion is confirmed by our decision in AFGE v. Loy, 367 F.3d 932 (D.C. Cir. 2004). There, several unions alleged in district court that an agency directive prohibiting airport security screeners from engaging in collective bargaining was “ultra vires” and violated the First and Fifth Amendments of the Constitution. Id. at 934, 936. We held that the district court lacked jurisdiction and the unions were required to pursue even their constitutional claims through the FSLMRS‘s scheme. Id. at 936-37. Our decision might have been different, we acknowledged, if the scheme “preclude[d] all judicial review of” the constitutional claims. Id. at 937 (quoting Thunder Basin, 510 U.S. at 215 n.20). But we found “unwarranted” the “assumption” that the courts of appeals would not be able to review the claims on appeal from the FLRA. Id. at 937. So too here. As we have explained, we see no reason to think that the unions’ claims would be “unreviewable” by an appellate court through the statutory scheme. See id.; see also Steadman, 918 F.2d at 967 (“Congress passed an enormously complicated and subtle scheme to govern employee relations in the federal sector,” and “federal employees may not circumvent that structure even if their claim is based as well on the Constitution.“).
Requiring the unions here to proceed through the FSLMRS‘s scheme does not foreclose “all meaningful judicial review.” See Arch Coal, 888 F.3d at 500. Although the unions are not able to pursue their preferred systemwide challenge through the scheme, they can ultimately obtain review of and relief from the executive orders by litigating their claims in the context of concrete bargaining disputes. Such review, according to Thunder Basin, Air Force, and Loy, qualifies as meaningful.
2
For many of the same reasons, the unions’ claims are not “wholly collateral” to the statutory scheme. See Arch Coal, 888 F.3d at 500. This consideration is “related” to whether “meaningful judicial review” is available, and the two considerations are sometimes analyzed together. Jarkesy, 803 F.3d at 22. In its most recent decision on this subject, the Supreme Court determined whether the plaintiffs’ challenge was “wholly collateral” to a statutory scheme by asking whether the plaintiffs
The unions’ challenge in this case is of the type that is regularly adjudicated through the FSLMRS‘s scheme: disputes over whether the Statute has been violated. And the unions ask the district court for the same relief that they could ultimately obtain through the statutory scheme, namely rulings on whether the executive orders are lawful and directives prohibiting agencies from following the executive orders during bargaining disputes. Their challenge is not wholly collateral to the statutory scheme.
3
Finally, the unions’ claims are not “beyond the expertise” of the FLRA. See Arch Coal, 888 F.3d at 500. Many of their claims allege that the executive orders direct agencies to violate the Statute by refusing to bargain over mandatory subjects or by taking actions that are inconsistent with the duty to bargain in good faith. These matters lie at the core of the FLRA‘s “specialized expertise in the field of federal labor relations.” AFGE Council of Locals No. 214 v. FLRA, 798 F.2d 1525, 1528 (D.C. Cir. 1986). The FLRA has “primary responsibility for administering and interpreting” the Statute, id.; see
The district court concluded that this consideration weighed in favor of exercising its jurisdiction because the FLRA‘s expertise was “potentially helpful” but “not essential to resolving” the unions’ claims. Id. at 408-09 (capitalization omitted). But that is not the law. The question we must ask is whether agency expertise may be “brought to bear on” the claims, not whether the expertise is essential. Jarkesy, 803 F.3d at 29.
The district court also viewed the unions’ claims as “primarily” concerned with “separation-of-powers issues” and “whether a statute or the Constitution has authorized the President to act in a particular way“—issues that are the “bread and butter of the Judicial Branch.” AFGE, 318 F. Supp. 3d at 408 (citing Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 597 (1952) (Frankfurter, J., concurring), and Marbury v. Madison, 5 U.S. (1 Cranch) 137, 177 (1803)). As already discussed, many of the claims are not so grand, but rather require interpreting the FSLMRS—the very law that the FLRA is charged with administering and
III
All three considerations demonstrate that the unions’ claims fall within the exclusive statutory scheme, which the unions may not bypass by filing suit in the district court. See Arch Coal, 888 F.3d at 500. Lacking jurisdiction, the district court had no power to address the merits of the executive orders. See Steel Co. v. Citizens for a Better Env‘t, 523 U.S. 83, 94-95 (1998); Kaplan v. Cent. Bank of the Islamic Republic of Iran, 896 F.3d 501, 510 (D.C. Cir. 2018). We therefore reverse the judgment of the district court holding that it had jurisdiction, and we vacate the district court‘s judgment on the merits.
So ordered.