D.C. Circuit: Unions Must Use FLRA to Challenge Trump’s Fed Workforce Executive Orders
After the president issued three executive orders regarding relations between the federal government and its employees, several federal employee unions filed lawsuits in district court to challenge provisions in those orders. Those suits were consolidated at the district court in June 2018. In its August 2018 decision, the district court found several provisions in the executive orders unlawful, and ordered agencies to cease implementation of those provisions. The government appealed the district court decision, and on July 16, 2019, the United States Court of Appeals for the D.C. Circuit found that the district court lacked jurisdiction to hear the unions’ claims, and vacated the district court judgment.
The appeals court noted that the Federal Service Labor-Management Relations Statute (FSLMRS), while granting federal employees the right to organize and bargain collectively and requiring that unions and federal agencies negotiate in good faith over certain matters, expressly did not limit “any function of, or authority available to, the President which the President had immediately before its effective date.” The appeals court also noted that the FSLMRS established “a scheme of administrative and judicial review” that featured adjudication of federal labor disputes by the Federal Labor Relations Authority (FLRA). Decisions by the FLRA, the appeals court observed, are “subject to direct review in the courts of appeals.”
The appeals court cited Bowles v. Russell, 551 U.S. 205, 212 (2007) for the proposition that Congress decides what cases the federal courts have jurisdiction to consider. According to the appeals court “[d]istrict courts have jurisdiction over civil actions arising under the Constitution and laws of the United States,” but in some circumstances, “Congress may preclude district court jurisdiction by establishing an alternative statutory scheme for administrative and judicial review.”
In order to determine whether Congress established an alternative statutory scheme for the claims brought by the unions, the appeals court employed the two-step framework set forth in Thunder Basin Coal Co. v. Reich, 510 U.S. 200 (1994). In that framework, Congress intended a litigant proceed “exclusively through a statutory scheme…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.’” The appeals court noted that the first step of the two-step framework was satisfied, and not in dispute, because Congress “passed an enormously complicated and subtle scheme to govern employee relations in the federal sector.” In analyzing the second step, the district court held that the unions’ claims are not “of the type” Congress intended for review within the statutory scheme of the FSLMRS. The appeals court disagreed.
According to the appeals court, claims will only be found to fall outside the scope of a special statutory scheme in limited circumstances. Specifically, only 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.
For the first element, the appeals court found that “all meaningful judicial review” was not foreclosed by requiring the unions to proceed through the statutory scheme. The unions argued that the scheme does not provide for the injunctive relief that “pre-implementation” review of executive orders can provide. The appeals court disagreed and cited the Supreme Court’s decision in Thunder Basin, which held that review was “meaningful” even though there was no way for the company in that case to assert its pre-enforcement challenge of an alleged violation of the National Labor Relations Act before the Mine Safety and Health Review Commission or the district courts. The appeals court also noted that the unions in AFGE v. Sec’y of the Air Force, 481 F. Supp. 2d 233, 235 (D.D.C. 2012) were required to raise their challenges through the scheme “even if that made it impossible to obtain particular forms of review or relief.” In AFGE v. Sec’y of the Air Force, AFGE wanted to challenge a uniform regulation on a national scale via an Administrative Procedure Act suit instead of the “local-by-local” basis provided for by the FLRA. In that case, the district court held that the lack of a way to assert a national-scale challenge to the uniform regulation “did not mean AFGE could resort to the courts.” Rather, the court held that AFGE “may not raise the claim at all.”
In this case, the appeals court held that the FSLMRS provides the unions with several “administrative options” for challenging the executive orders at the FLRA, as well as judicial review following the FLRA decision.
For the second element, the appeals court held that the unions’ claims of violation of the FSLMRS were not “wholly collateral” to the statutory scheme because it was of the type that is regularly adjudicated through the FSLMRS’ scheme. The appeals court found that the unions asked 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.”
For the third element, the appeals court held that the unions’ claims were not “beyond the expertise” of the FLRA, even though the FLRA could not adjudicate constitutional questions and had no constitutional expertise. The appeals court found that many of the unions’ claims were not so “grand” in nature, and “[e]ven in the absence of constitutional expertise, an agency’s expertise in other areas may still weigh in favor of administrative review if the agency could ‘obviate the need to address’ broad constitutional and statutory claims by resolving a case on other grounds or if the agency could ‘alleviate constitutional concerns’ through its interpretation of its statute.”
For the above stated reasons, the United States Court of Appeals for the D.C. Circuit reversed the district court decision, holding the district court lacked subject matter jurisdiction. The appeals court held that 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.”
Read the full case: AFGE v. Trump.
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Posted in Case Law Update