American Federation of Govt. v. Donald Trump

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued April 4, 2019 Decided July 16, 2019
No. 18-5289
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
Appeal from the United States District Court
for the District of Columbia
(No. 1:18-cv-01261)
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.
2
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, et al.
in support of appellees. James B. Coppess entered an
appearance.
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
3
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 Exec. Order No. 10,988, Employee-Management
Cooperation in the Federal Service, 27 Fed. Reg. 551 (Jan. 17,
1962); Exec. Order No. 11,491, Labor-Management Relations
in the Federal Service, 34 Fed. Reg. 17,605 (Oct. 29, 1969). In
1978, Congress enacted the Federal Service Labor-
Management Relations Statute (the “Statute” or FSLMRS) to
govern labor relations between the executive branch and its
employees. The Statute is set forth in Title VII of the Civil
Service Reform Act (CSRA), Pub. L. No. 95-454, § 701, 92
Stat. 1111, 1191-1216 (1978) (codified at 5 U.S.C. §§ 7101-
35).
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 5
U.S.C. §§ 7102(2), 7103(a)(14), 7106, 7114, 7117(a)(1); ATF,
464 U.S. at 91-92. But except as “expressly provided,” the
Statute does not limit “any function of, or authority available
to, the President which the President had immediately before
[its] effective date.” Pub. L. No. 95-454, § 904, 92 Stat. at 1224
(codified at 5 U.S.C. § 1101 note).
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 5 U.S.C. § 7105(a). In negotiability disputes, the
FLRA determines whether agencies and unions must bargain
over certain subjects. Id. §§ 7105(a)(2)(E), 7117(c)(1). In
4
unfair labor practice proceedings, the FLRA resolves whether
an agency must bargain over a subject, violated the duty to
bargain in good faith, or otherwise failed to comply with the
Statute. Id. §§ 7105(a)(2)(G), 7116(a), 7118. The FLRA’s
decisions in such disputes are subject to direct review in the
courts of appeals. Id. § 7123(a), (c).
B
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 Exec. Order No.
13,836, Developing Efficient, Effective, and Cost-Reducing
Approaches to Federal Sector Collective Bargaining, 83 Fed.
Reg. 25,329, 25,331-32 (May 25, 2018). This order also tells
agencies not to negotiate over “permissive” subjects, id. at
25,332, defined as those that are negotiable “at the election of
the agency” under 5 U.S.C. § 7106(b)(1).
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 Exec. Order No.
13,837, Ensuring Transparency, Accountability, and Efficiency
in Taxpayer-Funded Union Time Use, 83 Fed. Reg. 25,335,
25,336 (May 25, 2018). This order also establishes rules that
limit whether “agency time and resources” may be used by
employees on non-government business. Id. at 25,337
(capitalization omitted).
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
5
unacceptable performance.” Exec. Order No. 13,839,
Promoting Accountability and Streamlining Removal
Procedures Consistent With Merit System Principles, 83 Fed.
Reg. 25,343, 25,344 (May 25, 2018). Subject to various
exceptions, this order also prohibits agencies from resolving
disputes over employee ratings and incentive pay through
grievance or arbitration proceedings, and it mandates that some
subpar employees may have no more than thirty days to
improve their performance before being reassigned, demoted,
or fired. Id. at 25,344-45.
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 5 U.S.C. § 7106(b)(1); (2) establish
government-wide rules for employee and agency conduct,
which may have the effect of removing mandatory subjects
from bargaining based on 5 U.S.C. § 7117(a)(1); and (3) set
goals that agencies must pursue during bargaining. The
executive orders enforce these goals by directing agencies to
“commit the time and resources necessary” to achieve them
and by requiring agencies to notify the President through the
Office of Personnel Management (OPM) if the goals are not
met. 83 Fed. Reg. at 25,331-32, 25,336, 25,344. The orders also
require agencies “to fulfill their obligation to bargain in good
faith” throughout their dealings with unions. Id. at 25,331,
25,336; see also id. at 25,344.
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
6
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; (3) The
executive orders and their various provisions violate particular
requirements of the Statute; and (4) The executive orders’
“cumulative impact” violates the right to bargain collectively
as guaranteed by the Statute. Id. at 391-92.
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-1261 (D.D.C. Aug. 24, 2018), Dkt. No. 57.*
*
The district court also held that several provisions of the
executive orders were consistent with the Statute, AFGE, 318 F.
7The 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 28 U.S.C. § 1291. We review
the district court’s subject matter jurisdiction de novo. Capitol
Hill Grp. v. Pillsbury, Winthrop, Shaw, Pittman, LLC, 569 F.3d
485, 489 (D.C. Cir. 2009).
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, 28 U.S.C § 1331, but Congress
may preclude district court jurisdiction by establishing an
alternative statutory scheme for administrative and judicial
review. To determine whether Congress has done so, we use
the two-step framework set forth in Thunder Basin Coal Co. v.
Reich, 510 U.S. 200 (1994). Under that framework, “Congress
intended that a litigant proceed exclusively through a statutory
Supp. 3d at 437-39; rejected the Take Care Clause claim, id. at 439;
and did not address the First Amendment claim because the only
provision of the executive orders challenged under the First
Amendment was held unlawful under the Statute, id. at 430 n.16. The
unions do not contest these decisions on appeal.
8
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.’” Jarkesy v. SEC, 803 F.3d 9, 15 (D.C. Cir. 2015)
(quoting Thunder Basin, 510 U.S. at 207, 212); see Free Enter.
Fund v. Pub. Co. Accounting Oversight Bd., 561 U.S. 477, 489
(2010).
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
9
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
10
204-05, 213-14, 216. The Supreme Court held that the district
court’s jurisdiction was precluded by the statutory scheme,
which provided for review before the Mine Safety and Health
Review Commission followed by appeal to the circuit courts.
Id. at 218. Critically, that review was held “meaningful” even
though there was no way for the company to assert its pre-
enforcement challenge, whether before the Commission or the
district court. Id. at 212-16. The company was required to wait
until the mine safety agency issued a citation and initiated
concrete enforcement proceedings before the Commission. Id.
at 216. Only through those proceedings—not before the district
court—could the company challenge the designation of the
non-employees as violating the NLRA. Id. Here, Thunder
Basin instructs that the unions are not necessarily entitled to
raise a pre-implementation challenge in the district court, and
that Congress may require them to litigate their claims solely
through the statutory scheme, at least so long as they can
eventually obtain review and relief.
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
11
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 5 U.S.C.
§ 7117(c)). A local union could also use a grievance
proceeding to adjudicate a claim that the dress code violated
Title 10. Id. at 637-38 & n.4 (citing 5 U.S.C. § 7121). Or a
union could challenge the dress code by filing unfair labor
practice charges. Id. at 638 (citing 5 U.S.C. §§ 7116(a),
7118(a)). We acknowledged that the unions “may not prevail
using one of these procedures or would prefer to challenge the
Air Force instructions by some other means,” such as an APA
suit in district court, but “that does not mean their claims may
be brought outside the [Statute’s] exclusive remedial scheme.”
Id.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 before the district court. Id.12
at 639. The statutory scheme provided no way to assert such a
“nationwide” attack, but that did not mean AFGE could resort
to the courts. Id. at 638. Rather, it meant AFGE “may not raise
the claim at all.” Id. Even plaintiffs with “nationwide” or
“systemwide” challenges may not “circumvent” the scheme
established by the Statute. Id. at 639 (internal quotation marks
omitted). We also acknowledged that even though the scheme
might not afford the unions the same relief they sought in
district court, the Statute still precluded the district court from
exercising jurisdiction: “[I]t is the comprehensiveness of the
statutory scheme involved, not the adequacy of specific
remedies thereunder, that counsels judicial abstention.” Id. at
638 (internal quotation marks omitted).
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.
13
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 5 U.S.C. § 7117(a)(1)
authorizes it to remove subjects from bargaining in this way,
and the FLRA could then determine whether the government is
correct. See, e.g., Nat’l Fed’n of Fed. Emps. Local 15, 33
F.L.R.A. 436, 438-39 (1988); AFSCME Local 3097 Union, 31
F.L.R.A. 322, 345-47 (1988); cf. IRS v. FLRA, 996 F.2d 1246,
1252 (D.C. Cir. 1993) (reviewing the FLRA’s holding as to
whether a government-wide rule displaced the duty to bargain
under the Statute, indicating that the FLRA may hear such
claims).
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 5 U.S.C. § 7106(b)(1), which states that certain
subjects are negotiable “at the election of the agency.” The
FLRA could then determine whether the agency may refuse to
bargain in this way.
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 against the President. Even if true, the latter
point does not appear to make FLRA review any less
meaningful than district court review in this case, where the
14
unions stated that injunctive relief against the President’s
subordinates in executive branch agencies was sufficient to
afford them the relief they sought and the district court did not
grant injunctive relief against the President. See Tr. of Mot.
Hr’g at 133-34, AFGE v. Trump, No. 1:18-cv-1261 (D.D.C.
July 25, 2018), Dkt. No. 56; Order at 2-3, AFGE v. Trump, No.
1:18-cv-1261 (D.D.C. Aug. 24, 2018), Dkt. No. 57. Instead, the
unions obtained an order directing that the President’s
subordinates may not implement various provisions of the
executive orders during bargaining. Order at 2-3, AFGE v.
Trump, No. 1:18-cv-1261 (D.D.C. Aug. 24, 2018), Dkt. No. 57.
On this record, it appears that the unions may seek similar
orders through the statutory scheme. Indeed, the government
has even taken the position that the FLRA would have the
authority to resolve the unions’ broad statutory claims,
specifically those asserting that the executive orders are invalid
or ultra vires under the Statute. See Tr. of Oral Arg. at 42:16-
43:19 (April 4, 2019).
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].” 5 U.S.C. § 7123(a), (c). Also,
the courts of appeals generally may not consider objections that
were not at least “urged” before the FLRA. Id. § 7123(c).
Reviewing similar statutory schemes, the Supreme Court has
explained that “[i]t is not unusual for an appellate court
reviewing the decision of an administrative agency to consider
a constitutional challenge to a federal statute that the agency
concluded it lacked authority to decide,” Elgin v. Dep’t of
15
Treasury, 567 U.S. 1, 18 n.8 (2012), and we recently elaborated
that “it is of no dispositive significance” whether the agency
“has the authority to rule” on constitutional claims so long as
the claims “can eventually reach ‘an Article III court fully
competent to adjudicate’ them,” Jarkesy, 803 F.3d at 19
(quoting Elgin, 567 U.S. at 17); accord Bank of La. v. Fed.
Deposit Ins. Corp., 919 F.3d 916, 925-26 (5th Cir. 2019). We
see no reason why the scheme here would prevent us from
resolving the unions’ constitutional or statutory challenges
even if the FLRA could not.
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 5 U.S.C. § 7123(c)). We once
suggested in a footnote that the Statute would not allow us to
review constitutional claims that the FLRA could not consider.
Nat’l Fed’n of Fed. Emps. v. Weinberger, 818 F.2d 935, 940
n.7 (D.C. Cir. 1987). But this suggestion cannot survive the
Supreme Court’s decision in Thunder Basin, which involved a
statutory scheme that used nearly identical language,
conferring on appellate courts jurisdiction over the Mine Safety
and Health Review Commission’s “proceeding” and “the
questions determined therein,” with the authority to affirm,
modify, or set aside the Commission’s order. 30 U.S.C.
§ 816(a)(1); see 510 U.S. at 208. The Supreme Court held that
this scheme allowed the courts of appeals to “meaningfully
address[]” statutory and constitutional claims even if the
Commission could not. Thunder Basin, 510 U.S. at 215.
16
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 29 U.S.C. § 660(a). This
scheme, we explained, permitted us to meaningfully address
constitutional claims on appeal from the Commission. Sturm,
300 F.3d at 874; see also Jarkesy, 803 F.3d at 19
(nondelegation challenge must be channeled through the
Securities and Exchange Commission, followed by review in
this court, even if the Commission cannot resolve the
challenge). The same language in the FSLMRS leads to the
same conclusion: we may review the unions’ broad statutory
and constitutional claims on appeal from an FLRA proceeding
even if the FLRA cannot.
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. (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
17
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 “aimed to obtain the same relief they
could seek in the agency proceeding.” Id. at 23 (citing Elgin,
567 U.S. at 22). The Supreme Court concluded that they did,
because their challenge was of the type that was “regularly
adjudicated” through the statutory scheme and the statutory
scheme empowered the agency and the reviewing appellate
court to provide the relief sought by the plaintiffs. Elgin, 567
U.S. at 22.
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
18
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 5 U.S.C.
§ 7105(a), and it serves the “‘special function of applying the
general provisions of the [Statute] to the complexities’ of
federal labor relations,” Nat’l Fed’n of Fed. Emps. Local 1309
v. Dep’t of Interior, 526 U.S. 86, 99 (1999) (quoting ATF, 464
U.S. at 97). In doing so, the FLRA “regularly construes” the
Statute and adjudicates whether governmental actions violate
the Statute. See Elgin, 567 U.S. at 23. Indeed, unlike Article III
courts, the FLRA’s “ordinary course of business” involves
determining whether subjects are mandatory bargaining topics
or whether the government has bargained in good faith. See
Jarkesy, 803 F.3d at 28. The FLRA’s familiarity with federal
labor-management relations is thus more than “helpful
background knowledge.” AFGE, 318 F. Supp. 3d at 408. It is
expertise that goes to the core issues in this case.
19
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 interpreting. Regardless, the
Supreme Court has “clarified” that “an agency’s relative level
of insight into the merits of a constitutional question is not
determinative.” Jarkesy, 803 F.3d at 28-29 (citing Elgin, 567
U.S. at 22-23). Even 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.
Id. at 29 (quoting Elgin, 567 U.S. at 22-23); see Bank of La.,
919 F.3d at 929-30. That is the case here. The FLRA could
“moot the need to resolve” the unions’ constitutional claims by
concluding that the Statute bars agencies from implementing
the executive orders. See Jarkesy, 803 F.3d at 29; cf. AFGE,
318 F. Supp. 3d at 430 n.16 (doing just that by declining to
20
resolve the First Amendment claim after concluding that the
provision at issue ran afoul of the Statute). Also, the FLRA
“could offer an interpretation of the [Statute] in the course of
the proceeding” that might alleviate or “shed light on” the
constitutional concerns. See Jarkesy, 803 F.3d at 29. After all,
“there are precious few cases involving interpretation of
statutes authorizing agency action in which our review is not
aided by the agency’s statutory construction.” Id. (quoting
Mitchell v. Christopher, 996 F.2d 375, 379 (D.C. Cir. 1993)).
Because the FLRA’s expertise can be “brought to bear” on the
unions’ claims in these ways, “we see no reason to conclude
that Congress intended to exempt” the claims from the
statutory scheme. Id. (quoting Elgin, 567 U.S. at 23).
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.