Labor & Employment Law Daily Federal sector union fails to halt Trump’s labor-management executive orders
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Friday, September 18, 2020

Federal sector union fails to halt Trump’s labor-management executive orders

By Wayne D. Garris Jr., J.D.

The public sector union filed suit after the D.C. Circuit found that it lacked jurisdiction to hear another union’s challenge to the EOs.

The Second Circuit affirmed a district court’s denial of SEIU Local 200’s motion for a preliminary injunction to halt enforcement of three Executive Orders affecting federal sector employees. Wholly adopting the district court’s reasoning, the court agreed that federal law authorizes the president to issue regulations governing federal labor-management relations; thus the Executive Orders were legally binding. Further, although OPM actions are subject to the APA, the three guidances issued by OPM were not required to go through notice and comment rulemaking as the guidances merely summarized, not implemented, the Executive Orders. Lastly, the court held that it lacked jurisdiction to hear the APA claims, as they were subject to mandatory litigation before the Federal Labor Relations Authority (Service Employees International Union, Local 200 v. Trump, September 16, 2020, per curiam).

The Executive Orders. In May 2018, President Trump issued three executive orders that made substantial changes to federal sector labor management-relations: Developing Efficient, Effective, and Cost-Reducing Approaches to Federal Sector Collective Bargaining; Ensuring Transparency, Accountability, and Efficiency in Taxpayer-Funded Union Time Use; and Promoting Accountability and Streamlining Removal Procedures Consistent with Merit System Principles. In July 2018, OPM issued three guidances on the requirements provided in the EOs.

District court proceedings. In August 2019, the union filed suit alleging that the orders violated the procedural and substantive provisions of the Administrative Procedures Act.

In a December 2019 order, the district court denied the union’s motion finding that it did not have jurisdiction to consider the merits of the union’s claim and, even if jurisdiction exists, the union could not demonstrate a likelihood of success on the merits.

Specifically, the district court found that 5 U.S.C. § 7301 expressly gives the president authority to issue regulations that “carry the force of law” in the area of federal labor-management relations, thus the executive orders were legally binding. Regarding the guidances, the district court acknowledged that the APA typically applies to actions by OPM to implement executive orders, but the guidances at issue here merely summarized the president’s legally binding EOs, so notice and comment rulemaking was not required. Lastly, the federal courts did not have jurisdiction over the union’s substantive APA claims because the claims were subject to mandatory litigation before the Federal Labor Relations Authority in the context of concrete bargaining disputes.

Affirmed. In a brief order, the Second Circuit held that the district court did not abuse its discretion when denying the motion for preliminary injunction. The court did not provide any new analysis, instead stating that it affirmed denial for “substantially the reasons set forth by the district court” in its December 2019 order.

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