Service Employees International Union Local 200United v. Trump

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OCT 08 2019

UNITED STATES DISTRICT COURT Kany oe

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WESTERN DISTRICT OF NEW YORK STERN DISTRICT □□

SERVICE EMPLOYEES INTERNATIONAL

UNION LOCAL 200UNITED and SERVICE

EMPLOYEES INTERNATIONAL UNION,

Plaintiffs,

DECISION AND ORDER

V.

1:19-CV-01073 EAW

DONALD J. TRUMP, President of the United

States, MARGARET WEICHERT, Acting

Director of the Office of Personnel Management,

and UNITED STATES OFFICE OF

PERSONNEL MANAGEMENT,

Defendants.

INTRODUCTION

Plaintiffs Service Employees International Union Local 200United (“SEIU Local

200U”) and Service Employees International Union (“SEIU”) (collectively “Plaintiffs’’)

bring this action seeking declaratory and injunctive relief related to three executive orders

issued by defendant Donald J. Trump (‘President Trump”’) and subject to implementation

by defendant Margaret Weichert (“Director Weichert”), the Acting Director of defendant

United States Office of Personnel Management (“OPM”) (hereinafter referred to

collectively with President Trump and Director Weichert as “Defendants”). (Dkt. 1).

Plaintiffs assert that the challenged executive orders unlawfully “interfere with federal

employees’ statutory right to engage in collective bargaining.” (/d. at § 1). Currently

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before the Court is Plaintiffs’ motion for a temporary restraining order (“TRO”). (Dkt. 26).

For the reasons discussed below, the Court denies the request for a TRO.

BACKGROUND

I. Statutory Scheme

In 1978, Congress enacted Title VII of the Civil Service Reform Act (““CSRA”),

“the first statutory scheme governing labor relations between federal agencies and their

employees.” Bureau of Alcohol, Tobacco and Firearms v. Fed. Labor Relations Auth., 464

U.S. 89, 91 (1983) [hereinafter “A7F”’’]. Before the enactment of Title VII, also known as

the Federal Service Labor-Management Relations Statute ““FSLMRS”), “[p]residents used

executive orders to grant federal employees ‘limited rights to engage in concerted activity’

through unions.” Am. Fed’n of Gov't Emps., AFL-CIO v. Trump, 929 F.3d 748, 752 (D.C.

Cir. 2019) [hereinafter “AFL-CIO IP’] (quoting ATF, 464 U.S. at 91-92); see Employee-

Management Cooperation in the Federal Service, 27 Fed. Reg. 551 (Jan. 17, 1962); Labor-

Management Relations in the Federal Service, 34 Fed. Reg. 17,605 (Oct. 29, 1969).

The FSLMRS “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.” AFL-CIO IT, 929 F.3d at 752. The statute also provides that no provision

of the FSLMRS “shall be construed to . . . limit, curtail, abolish, or terminate any function

of, or authority available to, the President which the President had immediately before the

[FSLMRS]’s effective date” unless “otherwise expressly provided.” Pub. L. No. 95-454,

§ 904, 92 Stat. 1111, 1224 (codified at 5 U.S.C. § 1101 note).

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Additionally, the FSLMRS established the Federal Labor Relations Authority

(“FLRA”), “a three-member independent and bipartisan body within the Executive

Branch” that “adjudicates negotiability disputes, unfair labor practice complaints,

bargaining unit issues, arbitration exceptions, and conflicts over the conduct of

representational elections.” ATF, 464 U.S. at 92 (citing 5 U.S.C. § 7104). The FLRA can

hold hearings, take testimony, and issue subpoenas, and if the FLRA finds an agency has

violated the FSLMRS, it can require the agency “to cease and desist... and require it to

take any remedial action it considers appropriate.” 5 U.S.C. § 7105(g). “The FLRA’s

decisions in such disputes are subject to direct review in the courts of appeals.” AFL-CIO

IT, 929 F.3d at 752 (citing 5 U.S.C. § 7123(a), (c)).

On May 25, 2018, President Trump issued the three challenged executive orders

(the “Executive Orders”) regarding federal labor-management relations. (Dkt. 20-1 at 12;

Dkt. 29 at 10); see Developing Efficient, Effective, and Cost-Reducing Approaches to

Federal Sector Collective Bargaining, 83 Fed. Reg. 25329 (May 25, 2018) (“Collective

Bargaining Procedures Order”); Ensuring Transparency, Accountability, and Efficiency in

Taxpayer-Funded Union Time Use, 83 Fed. Reg. 25335 (May 25, 2018) (“Official Time

Order”); Promoting Accountability and Streamlining Removal Procedures Consistent with

Merit System Principles, 83 Fed. Reg. 25343 (May 25, 2018) (“Removal Procedures

Order”). The Collective Bargaining Procedures Order sets forth procedures for collective

bargaining negotiations, 83 Fed. Reg. 25329; the Official Time Order prescribes

parameters regarding the use of official time for union activities, 83 Fed. Reg. 25335; and

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the Removal Procedures Order addresses performance appraisals and removal of

employees, 83 Fed. Reg. 25343. The Executive Orders require agencies “to fulfill their

obligation to bargain in good faith,” 83 Fed. Reg. 25329, 25331; 83 Fed. Reg. 25335,

25336; 83 Fed. Reg. 25343, 25344, and state they are to be “implemented consistent with

applicable law,” 83 Fed. Reg. 25329, 25333; 83 Fed. Reg. 25335, 25340; 83 Fed. Reg.

25343, 25346.

In July 2018, the OPM issued three guidance documents (the “Guidances”)

regarding the rules and requirements set forth in the Executive Orders. Although OPM

rescinded the Guidances after the United States District Court for the District of Columbia

issued an injunction that prohibited OPM from implementing or giving effect to nine

provisions of the Executive Orders, see Am. Fed. of Gov’t Emps., AFL-CIO v. Trump, 318

F, Supp. 3d 370, 440 (D.D.C. 2018) [hereinafter “AFL-CIO I’], reversed and vacated,

AFL-CIO IT, 929 F.3d 748, OPM intends to immediately implement the Executive Orders

after the injunction is lifted (Dkt. 20-5 at ¥ 11).

Il. Prior Litigation

In June 2018, seventeen federal employee unions, not including Plaintiffs, filed four

lawsuits in the district court in D.C. challenging the legality of the Executive Orders. AFL-

CIO I, 318 F. Supp. 3d at 391. The cases were consolidated into a single action, and the

parties agreed to resolve the matters via summary judgment proceedings. Jd. at 392. On

August 25, 2018, the district court in D.C. issued a decision finding that it had subject

matter jurisdiction and that the President has constitutional and statutory authority to issue

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federal labor relations executive orders. Id. at 395-418. However, the D.C. district court

concluded that nine provisions of the Executive Orders violated the FSLMRS. Jd. at

418-37. The court enjoined “the President’s subordinates from implementing or giving

effect to” those nine provisions of the Executive Orders. Jd. at 440. The government

appealed the court’s decision. AFL-CIO II, 929 F.3d at 754.

On July 16, 2019, the D.C. Circuit unanimously reversed the district court’s ruling

and vacated the judgment, holding that “the district court lacked subject matter

jurisdiction.” Id. The D.C. Circuit found Congress intended that the unions’ challenges to

the Executive Orders be reviewed by the FLRA, and accordingly that the district court

lacked jurisdiction to hear those claims. Jd. at 761. The unions petitioned for en banc

review, which, in the absence of a request by any judge on the D.C. Circuit for a vote, the

court denied on September 25, 2019. Am. Fed. of Gov’t Emps., AFL-CIO v. Trump, No.

18-5289, Per Curiam Order (D.C. Cir. Sept. 25, 2019). The D.C. Circuit’s mandate is set

to issue on or about October 2, 2019, which will dissolve the district court’s injunction.

(Dkt. 26-1 at 5).!

Hl. The Unions and Their Claims

Plaintiffs are unions who represent federal workers. (Dkt. 20-1 at 18). SEIU is the

certified representative for a nationwide unit of the Department of Veterans Affairs (“VA”)

employees whose facility-based contracts are negotiated by local units such as SEIU Local

l As of the signing of this Decision and Order, the docket in the D.C. Circuit did not

reflect issuance of the mandate. ;

200U. Cd. at 19). SEIU Local 200U represents federal employees who work at VA

medical facilities in Buffalo, Canandaigua, Syracuse, and Albany, New York, and in Erie,

Pennsylvania. (/d.). “These bargaining units include employees who provide pharmacy,

rehabilitation, and prosthetic services; who provide specialized treatment such as

psychological or speech/language therapy; and who serve as police officers and firefighters

on VA campuses.” (Jd. at 18-19). SEIU Local 200U’s members are covered by collective

bargaining agreements negotiated between them—acting through SEIU Local 200U as

their representative—and the VA facilities. (Dkt. 1 at § 14). SEIU Local 200U maintains

offices in Buffalo and Rochester to serve its members. (/d.). Plaintiffs allege that SEIU

Local 200U “cannot function unless its employee representatives have time to perform the

duties assigned to them by statute,” and that “the union cannot fulfill its obligations without

employee representatives.” (Dkt. 20-1 at 19).

Plaintiffs assert various claims regarding the lawfulness of the content of the

Executive Orders, including claims that the Executive Orders violate the Administrative

Procedures Act (the “APA”), 5 U.S.C. § 500 et seg. (Dkt. 1 at 19-25). For their APA

claims, Plaintiffs contend Defendants violated the APA in two different ways: (1) that

“OPM is poised to implement rules that should be subject to notice and comment rule-

making without complying with the APA’s procedural requirements” (Dkt. 26-1 at 12);

and (2) that OPM’s implementation of the provisions of the Executive Orders will violate

statutory provisions set forth in the CSRA and FSLMRS (id. at 14-16).

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IV. Procedural History of the Instant Action

On August 13, 2019, Plaintiffs filed the instant action, which was initially assigned

to another district judge. (Dkt. 1). On September 12, 2019, Plaintiffs filed a motion for a

preliminary injunction (Dkt. 20), and the case was reassigned to the undersigned (Dkt. 21).

On September 26, 2019, Plaintiffs filed the motion for a TRO presently before the Court

(Dkt. 26) and a motion to expedite (Dkt. 27). The Court granted the motion to expedite

(Dkt. 28), and Defendants filed their response to the motion for a TRO and motion for a

preliminary injunction on September 30, 2019. (Dkt. 29). Oral argument was heard before

the undersigned on October 1, 2019, and the Court reserved decision. (Dkt. 31).

DISCUSSION

L Legal Standard

“Tn the Second Circuit, the standard for a temporary restraining order is the same as

for a preliminary injunction.” Jackson v. Johnson, 962 F. Supp. 391, 392 (S.D.N.Y. 1997).

As the Second Circuit has explained:

In general, district courts may grant a preliminary injunction where a plaintiff

demonstrates irreparable harm and meets one of two related standards: either

(a) a likelihood of success on the merits, or (b) sufficiently serious questions

going to the merits of its claims to make them fair ground for litigation, plus

a balance of the hardships tipping decidedly in favor of the moving party.

Otoe-Missouria Tribe of Indians v. N.Y. State Dep’t of Fin. Servs., 769 F.3d 105, 110 (2d

Cir. 2014) (quotations omitted). However, “[a] plaintiff cannot rely on the fair-ground-

for-litigation alternative to challenge governmental action taken in the public interest

pursuant to a statutory or regulatory scheme.” Jd. In this context, the phrase “‘in the public

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interest” does not call upon the Court to make a value judgment, see Able v. United States,

44 F.3d 128, 131 (2d Cir. 1995) (applying higher standard in lawsuit challenging the

military’s “Don’t Ask, Don’t Tell” policy after finding “it is inappropriate for this court to

substitute its own determination of the public interest for that arrived at by the political

branches, whether or not there may be doubt regarding the wisdom of their conclusion’’),

and the higher standard applies even if the party requesting a preliminary injunction or

temporary restraining order “seeks to vindicate a sovereign or public interest.” Oneida

Nation of N.Y. v. Cuomo, 645 F.3d 154, 164 (2d Cir. 2011). Instead, the relevant inquiry

is whether the governmental policy at issue was “implemented through legislation or

regulations developed through presumptively reasoned democratic processes.” Able, 44

F.3d at 131.

Plaintiffs argue that the governmental action at issue in this case is not entitled to

any deference by the Court, because it results from “unilateral executive decision-making.”

(Dkt. 32 at 2). In support of this argument, Plaintiffs rely on Haitian Centers Council, Inc.

v. McNary, 969 F.2d 1326 (2d Cir. 1992), judgment vacated as moot sub nom. Sale v.

Haitian Centers Council, Inc., 509 U.S. 918 (1993), and Christa McAuliffe Intermediate

School PTO, Inc. v. de Blasio, 364 F. Supp. 3d 253 (S.D.N.Y. 2019). (See Dkt. 32).

However, neither of those decisions are factually analogous to the situation before the

Court.

In Haitian Centers, the plaintiffs were challenging the government defendants’

refusal to allow them to “have access to. . . Haitian migrants on board Coast Guard cutters

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and at Guanténamo Bay for the purpose of providing them legal counsel, advocacy, and

representation.” 969 F.2d at 1332 (quotation omitted). The government defendants were

unable to point to a specific statute that authorized their conduct, but instead rested on the

broad grant of authority set forth in the Immigration and Naturalization Act. Jd. at 1339.

The Second Circuit concluded that under those circumstances, the district court had not

erred in applying the lesser, fair-ground-for-litigation standard. Jd. In Otoe-Missouria

Tribe, the Second Circuit distinguished Haitian Centers specifically on the basis that it

involved only an “informal policy” premised on “too general an authority to trigger the

higher standard for a preliminary injunction.” 769 F.3d at 111.

In Christa McAuliffe, the challenged governmental action related to changes the

New York City Department of Education had made to admissions criteria for New York

City schools. 364 F. Supp. 3d at 268. The district court found that the higher preliminary

injunction standard did not apply, because the New York City Department of Education

had acted unilaterally in adopting the changes, making them similar to the challenged

policies in Haitian Centers. Id.’

This case is unlike Haitian Centers or Christa McAuliffe because, as discussed

further in the Court’s assessment of the merits of Plaintiffs’ claims, the Executive Orders

in this case were based specifically on 5 U.S.C. § 7301, wherein Congress granted to the

- President express statutory authority to “prescribe regulations for the conduct of employees

2 The Christa McAuliffe court ultimately denied the requested preliminary injunction.

See 364 F. Supp. 3d at 284.

in the executive branch.” Jd. Moreover, the Executive Orders in question do not constitute

a mere informal policy, but instead set forth detailed, specific procedures for federal labor

relations. See Assoc. for Women in Science v. Califano, 566 F.2d 339, 344 (D.C. Cir. 1977)

(explaining that executive orders issued pursuant to § 7301 have the force of law). The

Court further notes that in Ab/e, much of the challenged governmental action was embodied

in Department of Defense directives, which the Second Circuit nonetheless concluded fell

“squarely within the confines” of the exception to the fair-ground-for-litigation standard.

44 F.3d at 131. Under these circumstances, the Court concludes that, in order to prevail

on the instant motion, Plaintiffs bear the burden of showing a likelihood of success on the

merits.

Il. Subject Matter Jurisdiction

Plaintiffs contend that they are likely to succeed on the merits of their claims under

the APA, which as noted above, have two aspects: first, Plaintiffs claim that Defendants

have violated the APA’s notice-and-comment rulemaking requirements; and second,

Plaintiffs claim that the Executive Orders violate numerous provisions of the CSRA and

FLSMRS and should accordingly be set aside under the APA as exceeding Defendants’

lawful authority. However, before turning to the merits of Plaintiffs’ claims, the Court

must consider as a threshold matter Defendants’ argument that the Court lacks jurisdiction

over Plaintiffs’ APA claims. In making this argument, Defendants rely largely on the

decision in AFL-CIO II. Plaintiffs argue that AFL-CIO II is not outcome determinative,

because it did not expressly consider claims under the APA. For the reasons that follow,

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the Court finds that, to the extent Plaintiffs’ APA claims challenge the content of the

Executive Orders and related Guidances, they are not cognizable in this Court, but that the

Court may have jurisdiction over the notice-and-comment rulemaking claim.

As the AFL-CIO IT court explained, while district courts generally have jurisdiction

over civil actions that arise under either the Constitution or the laws of the United States,

“Congress may preclude district court jurisdiction by establishing an alternative statutory

scheme for administrative and judicial review.” 929 F.3d at 754. In Thunder Basin Coal

Co. v. Reich, 510 U.S. 200 (1994), the Supreme Court established an analytical framework

pursuant to which “courts determine that Congress intended that a litigant proceed

exclusively through a statutory scheme of administrative and judicial review when (1) 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. S.E.C.,

803 F.3d 9, 15 (D.C. Cir. 2015) (quoting Thunder Basin, 510 U.S. at 207, 212).

It is well-established that the FLSMRS establishes a review mechanism that is

exclusive for claims falling within its scope, see AFL-CIO II, 929 F.3d at 755, and the

parties do not dispute this fact here. Instead, Plaintiffs contend that their APA claims do

not satisfy the second step of the Thunder Basin inquiry—that is, that they are not the type

of claims that Congress intended to require the FLRA to hear.

To the extent that Plaintiffs’ APA claims constitute challenges to the content of the

Executive Orders and the related Guidances—in other words, with respect to Plaintiffs’

claims that the Executive Orders and related Guidances run afoul of the APA because they

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exceed President Trump and OPM’s lawful authority—the Court finds that they are subject

to the FLSMRS’ statutory review scheme. The Court’s conclusion in this regard is

informed by the AFL-CIO II decision, wherein the D.C. Circuit analyzed in detail whether

the content of the precise Executive Orders challenged here by Plaintiffs was subject to

district court review. In the absence of any contrary authority from the Second Circuit, the

Court finds it ‘appropriate to adopt the D.C. Circuit’s conclusion that claims to the

lawfulness of the Executive Orders and associated Guidances “fall within the exclusive

statutory scheme, which the unions may not bypass by filing suit in the district court.”

AFL-CIO IT, 929 F.3d at 761.

This conclusion applies to Plaintiff's APA claims to the extent they challenge the

substantive lawfulness of the Executive Orders and associated Guidances. It is well-

established that the mere fact that a claim is styled as arising under the APA does not mean

that it is “outside of the scope of the administrative review scheme.” Arch Coal, Inc. v..

Hugler, 242 F. Supp. 3d 13, 20 (D.D.C. 2017), aff'd sub nom. Arch Coal, Inc. v. Acosta,

888 F.3d 493 (D.C. Cir. 2018). Indeed, in Fornaro v. James, 416 F.3d 63 (D.C. Cir. 2005),

the D.C. Circuit, in a decision authored by now-Chief Justice Roberts, concluded that “the

exclusivity of the remedial and review provisions of the CSRA” barred district court review

of a “a collateral, systemwide challenge to OPM policy” based on the APA. Jd. at 68-69;

see also Am. Fed’n of Gov't Emps. v. Sec’y of Air Force, 716 F.3d 633, 639 (D.C. Cir.

2013) (“[A] plaintiffs inability to use the APA to circumvent the CSRA’s requirements

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applies to a systemwide challenge to an agency policy interpreting a statute just as it does

to the implementation of such a policy in a particular case.” (quotation omitted)).

At oral argument, Plaintiffs argued that the cases finding APA claims subject to the

administrative review scheme are distinguishable because 5 U.S.C. §§ 1103, 1105, and

7134 make it clear that regulations promulgated by OPM must comply with the APA’s

requirements. The Court is not persuaded by this argument. As the Fornaro court noted,

see 416 F.3d at 66, the text of the APA itself accounts for the possibility that agency action

otherwise reviewable thereunder may instead be subject to an alternative remedy, see 5

U.S.C. §§ 702, 704. Nothing before the Court suggests that Plaintiffs would be unable to

pursue the merits of their content-based APA challenges in litigation before the FLRA and

ultimately the circuit court. Moreover, as discussed later in this Decision and Order, the

provisions cited by Plaintiffs apply only to regulations issued by OPM, and the Guidances

at issue here are not legislative rules subject to these provisions.

For all these reasons, the Court agrees with Defendants that it lacks jurisdiction over

Plaintiffs’ content-based APA claims. To be clear, the Court’s determination in this regard

is unrelated to any assessment of the merits of Plaintiffs’ contention that the Executive

Orders are in conflict with the CSRA and the FLSMRS. To the contrary, the Court finds

the careful and thorough assessment of these issues in AFL-CIO I persuasive. However,

as the D.C. Circuit explained in AFL-CIO II, the district court is not an available venue in

which to assert such claims. Instead, Plaintiffs’ content-based APA claims must be

litigated before the FLRA in the context of concrete bargaining disputes.

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However, the Court is not persuaded, on the instant record, that it lacks jurisdiction

over Plaintiffs’ procedural APA claims. The case law on this matter is far less clear. In

National Mining Association v. Department of Labor, 292 F.3d 849 (D.C. Cir. 2002), the

D.C. Circuit noted that a court must “read very carefully legislative restrictions on district

court review of generic challenges to agency action,” and further noted that it would not

be feasible to obtain review of the “rulemaking process” in “individual adjudications

dealing with particular regulatory provisions.” Jd. at 856, 858 (emphasis added).

Consistent with this distinction, the Arch Coal court noted that challenges to the procedural

aspects of a rule can “fall outside the scope of the administrative process. .. .” 242 F. Supp.

3d at 19.

The Court notes that National Mining Association and Arch Coal involved the

administrative review provisions of the Black Lung Benefits Act, and not the CSRA or

FLSMRS. The parties have not cited, nor has the Court discovered in its own research,

any cases that specifically address a district court’s jurisdiction to review procedural APA

challenges under the statutes relevant here. However, the Court finds it plausible that a

purely procedural APA challenge—that is, a challenge to the process used to adopt a

regulation, rather than the content thereof—is wholly collateral to the FLSMRS’s

administrative review scheme and outside the expertise of the FLRA, and therefore not

excluded from district court review. The Court accordingly will consider the merits of

Plaintiffs’ request for a TRO solely with respect to its procedural APA challenge.

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III. Likelihood of Success on the Merits

For the reasons previously discussed, the only claim that Plaintiffs assert on the

instant motion for a TRO over which the Court arguably has jurisdiction is Plaintiffs’ claim

that Defendants have violated the APA’s notice-and-comment rulemaking requirements.

Accordingly, the Court now considers whether Plaintiffs have established a likelihood of

success on the merits of this claim and concludes that they have not.

A. Applicability of the APA to Presidential Actions

Prior to discussing the merits of Plaintiff's procedural APA claim, a brief discussion

of the applicability of the APA to presidential actions and, specifically, executive orders,

is necessary.

The APA governs actions taken by agencies, which it defines as “each authority of

the Government of the United States, whether or not it is within or subject to review by

another agency,” with a number of exceptions, including Congress and the federal courts.

5 U.S.C. § 701(b)(1).. In Franklin v. Massachusetts, 505 U.S. 788 (1992), the Supreme

Court noted that “[t]he President is not explicitly excluded from the APA’s purview, but

he is not explicitly included,” and concluded that “textual silence is not enough to subject

the President to the provisions of the APA.” Jd. at 800-01. Accordingly, while a

president’s actions may be reviewable on other bases, such as constitutionality, they are

not subject to the requirements of the APA. Jd. at 801; see also Armstrong v. Bush, 904

F.2d 282, 289 (D.C. Cir. 1991) (“[T]he President has never been thought to have to comply

with APA rulemaking procedures when issuing executive orders.”).

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Notwithstanding the inapplicability of the APA to presidential actions, “agency

actions implementing a presidential action may be reviewed under the APA, even when

the agency action accomplishes a presidential directive.” Int’l Refugee Assistance Project

v. Trump, 373 F. Supp. 3d 650, 665 (D. Md. 2019); see also E. Bay Sanctuary Covenant v.

Trump, 932 F.3d 742, 770 (9th Cir. 2018) (explaining that while a court cannot review a

presidential proclamation under the APA, it can review the validity of a rule that

incorporates that proclamation). In this context, “courts that have conducted APA review

of agency actions implementing a presidential directive are typically presented with a

discrete agency rule or decision to review,” and generally do not “conduct[] APA review

[of a presidential directive] for compliance with substantive and procedural requirements

without a defined final agency action.” Jnt’l Refugee Assistance Project, 373 F. Supp. 3d

at 665. In other words, an APA challenge to an agency’s implementation of an executive

order (or other presidential directive) is not permissible prior to some independent, concrete

action by the agency. See Chamber of Commerce of U.S. v. Reich, 74 F.3d 1322, 1326

(D.C. Cir. 1996) (holding, in context of challenge to Secretary of Labor’s issuance of

regulations pursuant to executive order, that “[a]ppellants could not possibly have relied

on the APA for a cause of action prior to the Secretary’s issuance of regulations

implementing the Executive Order because, as the government correctly emphasizes, the

President is not an ‘agency’ under that Act and appellants sued before the Secretary issued

his regulations”); cf Hawaii v. Trump, 878 F.3d 662, 680 (9th Cir. 2017) (finding APA

review available where agencies had “consummated” their implementation of a

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presidential proclamation), rev’d and remanded on other grounds, 138 S. Ct. 2392 (2018);

O.A. v. Trump, No. CV 18-2718 (RDM), 2019 WL 3536334, at *24 (D.D.C. Aug. 2, 2019)

_ (‘The Court, moreover, need not pause over the fact that presidential actions are not

themselves subject to APA review, . . . because it is the Rule, and not the Proclamation,

that has operative effect.”).

B. Notice-and-Comment Rulemaking Claim

The Court turns now to Plaintiff's claim that the Executive Orders and OPM’s

related adoption of the Guidances violated the APA’s notice-and-comment rulemaking

requirements. “The APA establishes the procedures federal administrative agencies use

for ‘rule making,’ defined as the process of ‘formulating, amending, or repealing a rule.’”

Perez v. Mortg. Bankers Ass’n, 135 S. Ct. 1199, 1203 (2015) (quoting 5 U.S.C. § 551(5)).

Under the APA “[iJn most instances, agency rules must be subjected to a notice and

comment period before taking effect.” N.Y.S. Elec. & Gas Corp. v. Saranac Power

Partners, L.P.,267 F.3d 128, 131 (2d Cir. 2001) (quotation and original alteration omitted).

However, the APA’s notice-and-comment rulemaking requirements do not apply to “rules

that are merely interpretive.” Jd. An interpretive rule is one that does not create rights but

merely clarifies an existing statute or regulation. Jd.

The Court is not, on the instant record, persuaded that Plaintiffs have set forth a

claim that is likely to succeed for violation of the APA’s notice-and-comment rulemaking

requirements because the Court is not persuaded that Defendants have taken any action to

which such requirements apply. Initially, the Court finds that President Trump was not

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required to engage in notice-and-comment rulemaking before issuing the Executive

Orders. As the Court has previously explained, the President has express statutory

authority to “prescribe regulations for the conduct of employees in the executive branch.”

5 U.S.C. § 7301. This statutory authority is separate and distinct from the authority of the

director of OPM to issue regulations, which is set forth in 5 U.S.C. §§ 1103 and 1105 and

expressly subject to the requirements of the APA. The Supreme Court has held that § 7301

provides “express statutory authorization” for the President to issue executive orders

governing federal labor practices that “may create rights.” Old Dominion Branch No. 496,

Nat. Ass’n of Letter Carriers, AFL-CIO v. Austin, 418 U.S. 264, 273 n.5 (1974) (enforcing

executive order that “establish[ed] a labor-management relations system for federal

employment”); see also AFL-CIO I, 318 F. Supp. 3d at 414-17 (discussing history of the

president’s authority to issue executive orders governing federal labor practices and

concluding that neither the CSRA nor the FSLMRS “divested the President of his authority

to act in the field of federal labor relations”). Moreover, and as discussed at length above,

the President is not considered an agency under the APA and his actions are not subject to

the requirements thereof.

There is simply no plausible basis for the Court to conclude that President Trump

was required to engage in notice-and-comment rulemaking before issuing the Executive

Orders pursuant to § 7301. Plaintiffs have conceded they are aware of no case law that

would support such a conclusion, but instead argue that any finding to the contrary would

permit an unlawful circumvention of the APA. However, the APA exists alongside

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numerous federal statutes that modify or displace its terms, and the Court cannot ignore

the fact that § 7301 expressly provides the President with an independent source of

authority to issue executive orders of the type at issue here.

Nor are Plaintiffs’ claims saved by their reference to the Guidances issued by OPM.

The Guidances (which are, at this point, rescinded) do nothing more than summarize the

content of the Executive Orders and advise the relevant heads of executive departments

and agencies to consult with legal counsel regarding the implementation thereof. They do

not go beyond the four corners of the Executive Orders,? nor do they purport to have the

force of law. See Christensen v. Harris County, 529 U.S. 576, 587 (2000) (explaining that

agency “interpretations contained in policy statements, agency manuals, and enforcement

guidelines, all. . . lack the force of law”); cf Nat’l Treasury Emps. Union v. Reagan, 685

F. Supp. 1346, 1356-57 (E.D. La. 1988) (holding OPM’s letter issued after the issuance of

an executive order was a legislative rule, not a guideline, because “many provisions of

the . . . Letter contain mandatory instructions above and beyond the mandatory instructions

contained in the Order itself’). In other words, unlike the cases cited by Plaintiffs, this is

not a matter in which, in response to an executive order or presidential directive, an agency

has taken action that is then subject to the APA’s notice-and-comment rulemaking

requirements. Instead, the Executive Orders themselves have the force of law, see

Califano, 566 F.2d at 344, and the Guidances issued by OPM merely interpret those

3 Plaintiffs have not pointed to any portion of the Guidances that go above and beyond

the provisions in the Executive Orders. “19-

Executive Orders, see Arch Coal, 242 F. Supp. 3d at 21 (“While there might be some de

facto rules that a court would treat as notice-and-comment rules . . . the [document] does

not have the force of law or have a legally cognizable immediate effect[.]’”). OPM has not

yet issued any regulations or taken any other independent action in an effort to effectuate

or implement the Executive Orders. See Reich, 74 F.3d at 1326 (explaining that parties

cannot rely on the APA for a cause of action prior to “issuance of regulations implementing

the Executive Order”).

The Court notes that both the Executive Orders and the Guidances leave open the

possibility for future notice-and-comment rulemaking, and expressly state that the

Executive Orders should be implemented only “to the extent consistent with applicable

law.” See 83 Fed. Reg. 25329, 25333; 83 Fed. Reg. 25335, 25340; 83 Fed. Reg. 25343,

25346. In other words, on their own terms, the Executive Orders and associated Guidances

anticipate that agencies will continue to comply with existing regulations, unless and until

they are modified through the appropriate processes. There is nothing in the record before

the Court to suggest that the affected agencies will not do so. Of course, any action by

OPM to modify its existing regulations in response to the Executive Orders must fully

comport with the requirements of the APA.

In sum, on the record currently before this Court, Plaintiffs cannot demonstrate that

the Executive Orders or the associated Guidances are subject to challenge for having

failed to comply with the APA’s notice-and-comment rulemaking requirements. Under

these circumstances, Plaintiffs cannot demonstrate a likelihood of success on the merits (or

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indeed even serious questions making the matter fair ground for litigation). The Court

thus finds that issuance of a TRO is not warranted.

Ill. Irreparable Harm

In addition to arguing the merits of Plaintiffs’ claims, the parties vigorously dispute

whether Plaintiffs have established that they will experience irreparable harm absent a

TRO. It is well-established that “[a] showing of irreparable harm is the single most

important prerequisite for the issuance of a preliminary injunction” or TRO. Faiveley

7 ransp. Malmo AB v. Wabtec Corp., 559 F.3d 110, 118 (2d Cir. 2009) (quotation omitted).

The Court has reservations as to the adequacy of Plaintiffs’ showing in this regard. For

instance, Plaintiffs ask the Court to restrain Defendants from implementing the Executive

Orders in total, notwithstanding that portions of the Executive Orders were not enjoined by

the AFL-CIO J decision and have been in effect since May of 2018. Similarly, the Court

is hard-pressed to conclude that irreparable harm will inure pending the return date of

Plaintiffs’ motion for a preliminary injunction on October 21, 2019. In other words, the

bureaucracy of the federal government is anything but fastmoving and the Court is hard-

pressed to conclude that Plaintiffs’ collective bargaining rights will be irreparably harmed

immediately after the stay with respect to the Executive Orders is lifted.

However, because the Court has already concluded that Plaintiffs have not satisfied

the requirement that they demonstrate a likelihood of success on the merits, the Court need

not and does not reach this issue. See Forest City Daly Hous., Inc. v. Town of North

Hempstead, 175 F.3d 144, 153 (2d Cir. 1999) (“[A]ny irreparable harm plaintiffs might

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suffer in this case does not warrant a preliminary injunction in the absence of a showing of

(at least) a likelihood of success.”).

CONCLUSION

For the foregoing reasons, Plaintiffs’ motion for a TRO (Dkt. 26) is denied.

SO ORDERED.

0 ze gu □□

ELIZABETHA. WOLFORD

United States District Judge

Dated: October 3, 2019

Rochester, New York

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