Case 1:18-cv-01261-KBJ Document 40 Filed 07/16/18 Page 1 of 83 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, AFLCIO, Plaintiff, Consolidated Case No. 1:18-cv-01261KBJ v. DONALD J. TRUMP, et al., Defendants. NATIONAL FEDERATION OF FEDERAL EMPLOYEES, FD-1, IAMAW, AFL-CIO, et al., Plaintiffs, v. DONALD J. TRUMP, et al., Defendants. AMERICAN FEDERATION OF STATE, COUNTY AND MUNICIPAL EMPLOYEES, AFLCIO, et al., Plaintiffs, v. DONALD J. TRUMP, et al., Defendants. DEFENDANTS’ OPPOSITION TO PLAINTIFFS’ MOTIONS FOR SUMMARY JUDGMENT AND DEFENDANTS’ CROSS-MOTION FOR SUMMARY JUDGMENT Case 1:18-cv-01261-KBJ Document 40 Filed 07/16/18 Page 2 of 83 NATIONAL TREASURY EMPLOYEES UNION, Plaintiff, v. DONALD J. TRUMP, et al., Defendants. Case 1:18-cv-01261-KBJ Document 40 Filed 07/16/18 Page 3 of 83 TABLE OF CONTENTS INTRODUCTION .......................................................................................................................... 1 BACKGROUND ............................................................................................................................ 4 I. THE PRESIDENT’S AUTHORITY TO CONTROL THE CONDUCT OF FEDERAL EMPLOYEES .................................................................................................. 4 II. THE FEDERAL SERVICE LABOR–MANAGEMENT RELATIONS STATUTE......... 5 General Statutory Framework ..................................................................................... 5 Employees’ Use of Official Time ............................................................................... 8 Negotiated Grievance Procedures ............................................................................... 9 Removal of Employees for Unacceptable Performance.............................................. 9 III. THE PRESIDENT’S MAY 25, 2018 EXECUTIVE ORDERS ....................................... 10 Executive Order No. 13,836, Developing Efficient, Effective, and Cost-Reducing Approaches to Federal Sector Collective Bargaining (Collective Bargaining Order) ................................................................................... 10 Executive Order No. 13,837, Ensuring Transparency, Accountability, and Efficiency in Taxpayer-Funded Union Time Use (Official Time Order) ................. 11 Executive Order No. 13,839, Promoting Accountability and Streamlining Removal Procedures Consistent With Merit System Principles (Removal Procedures Order) ..................................................................................... 13 LEGAL STANDARD................................................................................................................... 14 ARGUMENT ................................................................................................................................ 15 I. PLAINTIFFS’ CLAIMS FALL OUTSIDE THIS COURT’S JURISDICTION. ............. 15 Congress Already Foreclosed Plaintiffs’ Attempt to Bypass the Statute’s Exclusive Review Scheme by Filing Suit in District Court. ..................................... 16 1. The Statute establishes a scheme of exclusive review by the FLRA, subject to judicial review in the courts of appeals. ................................... 18 2. Plaintiffs’ claims are precisely the type that Congress intended be reviewed by the FLRA and, if necessary, by a court of appeals. .............. 20 i Case 1:18-cv-01261-KBJ Document 40 Filed 07/16/18 Page 4 of 83 Prudential Ripeness Concerns Counsel Against Hearing Plaintiffs’ Claims. ........... 22 II. PLAINTIFFS’ CLAIMS LACK MERIT.......................................................................... 26 Congress Made Clear That Certain Subjects Could be Made Exempt from Collective Bargaining Negotiations by the Issuance of Government-Wide Rules. .. 26 None of the Challenged Provisions of the Orders Conflicts With the Statute. ......... 28 1. 2. The Collective Bargaining Order is not in conflict with the Statute......... 28 a. Section 5(a)’s “ordinarily reasonable” time periods for negotiating ground rules and term CBAs do not conflict with the Statute...................................................................................... 29 b. Section 5(c) provides guidance to agencies that is consistent with 5 U.S.C. § 7114(b). ............................................................... 30 c. Section 5(e) is not in conflict with any provision of the Statute. .. 31 d. Section 6 is consistent with Congress’s express determination that certain matters may be negotiated only “[a]t the election of the agency.” .............................................................................. 32 The Official Time Order is not in conflict with the Statute. ..................... 33 a. Section 3 of the Official Time Order does not conflict with the Statute. .......................................................................................... 34 b. Section 4 of the Official Time Order does not conflict with the Statute. .......................................................................................... 36 i. Sections 4(a)(i)-(v) and 4(b) are Government-wide rules that preclude agencies from bargaining over contrary proposals. ............................................................ 36 ii. Section 4(a)(i) does not violate 5 U.S.C. §§ 7102(1) or 7211, or otherwise conflict with the Statute. ................ 38 iii. Section 4(a)(ii) does not conflict with the language of or intent underlying 5 U.S.C. § 7131. ........................... 39 iv. Sections 4(a)(iii), 4(a)(iv), and 4(b) do not conflict with the Statute. ................................................................ 41 ii Case 1:18-cv-01261-KBJ Document 40 Filed 07/16/18 Page 5 of 83 3. v. Section 4(a)(v) does not force unions to violate 5 U.S.C. § 7114, or otherwise conflict with the Statute. .............................................................................. 42 vi. Section 4(c) does not conflict with the Statute because Congress gave OPM broad authority to administer civil service regulations. ................................. 43 The Removal Procedures Order is entirely consistent with the Statute. ...................................................................................................... 44 a. Sections 3 and 4(a) of the Removal Procedures Order are not in conflict with the Statute. ........................................................... 45 i. Section 4(a) is a Government-wide rule that precludes agencies from including certain disputes in negotiated grievance procedures, and is also consistent with Congress’s express decision to allow any matter to be excluded from such procedures. ........................................................................ 45 ii. Section 3 is not a binding directive to agencies and, even if it were, is consistent with Congress’s intent to allow certain matters to be excluded from negotiated grievance procedures. ...................................... 47 b. Section 4(b)(iii) of the Removal Procedures Order does not conflict with the Statute or impermissibly restrict the scope of bargaining. .................................................................................... 48 c. Section 4(c) of the Removal Procedures Order does not conflict with 5 U.S.C. § 4302(c)(6). ............................................. 50 d. Sections 2(a) and 2(b) do not impose binding requirements but instead announce principles of federal employee Accountability, which create no conflict with statutory provisions. ..................................................................................... 51 The Executive Orders Do Not “Cumulatively” Violate the Collective Bargaining Scheme.................................................................................................... 54 Plaintiffs’ Claims Under the Take Care Clause and the Separation of Powers Doctrine Are Baseless. .............................................................................................. 58 Section 4(a)(v) of the Official Time Order Does Not Infringe Plaintiffs’ First Amendment Right to Free Association. .................................................................... 60 iii Case 1:18-cv-01261-KBJ Document 40 Filed 07/16/18 Page 6 of 83 III. 1. Section 4(a)(v) does not infringe Plaintiffs’ right to free association. ................................................................................................ 61 2. Even if the First Amendment were implicated, Section 4(a)(v) passes constitutional muster. ..................................................................... 63 THIS COURT HAS NO JURISDICTION TO GRANT PLAINTIFFS’ REQUESTED RELIEF. .................................................................................................... 64 CONCLUSION ............................................................................................................................. 67 iv Case 1:18-cv-01261-KBJ Document 40 Filed 07/16/18 Page 7 of 83 TABLE OF AUTHORITIES CASES Abbott Labs. v. Gardner, 387 U.S. 136 (1967) .................................................................................................................. 23 AFGE v. FLRA, 798 F.2d 1525 (D.C. Cir. 1986) .......................................................................................... 40, 51 AFGE v. Loy, 367 F.3d 932 (D.C. Cir. 2004) ................................................................................ 17, 19, 20, 22 AFGE, AFL-CIO, Local 2441 v. FLRA, 864 F.2d 178 (D.C. Cir. 1988) .................................................................................................. 32 AFGE, Locals 225, 1504, & 3723, AFL-CIO v. FLRA, 712 F.2d 640 (D.C. Cir. 1983) .................................................................................................. 46 Am. Petroleum Inst. v. EPA, 683 F.3d 382 (D.C. Cir. 2012) ...................................................................................... 23, 24, 26 Arch Coal, Inc. v. Acosta, 888 F.3d 493 (D.C. Cir. 2018) ............................................................................................ 17, 20 Ass’n of Civilian Technicians v. FLRA, 269 F.3d 1119 (D.C. Cir. 2001) .............................................................................................. 8, 9 Ass’n of Civiliam Technicians v. FLRA, 283 F.3d 339 (D.C. Cir. 2002) .................................................................................................. 20 Ass’n for Women in Sci. v. Califano, 566 F.2d 339 (D.C. Cir. 1977) .................................................................................................. 59 Autor v. Pritzker, 740 F.3d 176 (D.C. Cir. 2014) .................................................................................................. 63 Baker v. Carr, 369 U.S. 186 (1962) .................................................................................................................. 60 Bldg. & Const. Trades Dep’t, AFL-CIO v. Allbaugh, 295 F.3d 28 (D.C. Cir. 2002) ............................................................................................ 2, 4, 59 Boy Scouts of America v. Dale, 530 U.S. 640 (2000) .................................................................................................................. 62 v Case 1:18-cv-01261-KBJ Document 40 Filed 07/16/18 Page 8 of 83 Brook v. Corrado, 999 F.2d 523 (Fed. Cir. 1993)................................................................................................... 54 Bureau of Alcohol, Tobacco and Firearms v. FLRA, 464 U.S. 89 (1983) ............................................................................................................. passim Bush v. Lucas, 462 U.S. 367 (1983) .................................................................................................................. 38 Campaign for Accountability v. DOJ, 278 F. Supp. 3d 303 (D.D.C. 2017) .......................................................................................... 24 Celotex Corp. v. Catrett, 477 U.S. 317 (1986) .................................................................................................................. 15 Comm. on the Judiciary of the U.S. House of Representatives v. Miers, 542 F.3d 909 (D.C. Cir. 2008) .................................................................................................. 65 Council of Prison Locals v. Brewer, 735 F.2d 1497 (D.C. Cir. 1984) .................................................................................................. 8 Dalton v. Spencer, 511 U.S. 462 (1994) ........................................................................................................ 3, 57, 58 Delta Air Lines, Inc. v. Exp.-Imp. Bank of U.S., 85 F. Supp. 3d 250 (D.D.C. 2015) ............................................................................................ 25 Dep’t of Veterans Affairs v. FLRA, 9 F.3d 123 (D.C. Cir. 1993) ...................................................................................................... 46 El Dia v. Hernandez Colon, 963 F.2d 488 (1st Cir. 1992) ............................................................................................... 23, 24 Elgin v. Dep’t of the Treasury, 567 U.S. 1 (2012) ...................................................................................................................... 22 Elrod v. Burns, 427 U.S. 347 (1976) .................................................................................................................. 64 FLRA v. Aberdeen Proving Ground, 485 U.S. 409 (1988) .................................................................................................................... 6 Franklin v. Massachusetts, 505 U.S. 788 (1992) ...................................................................................................... 58, 65, 66 Free Enter. Fund v. Pub. Co. Accounting Oversight Bd., 561 U.S. 477 (2010) .................................................................................................................. 19 vi Case 1:18-cv-01261-KBJ Document 40 Filed 07/16/18 Page 9 of 83 HHS v. FLRA, 844 F.2d 1087 (4th Cir. 1988) (en banc) ........................................................................ 7, 20, 27 Ind. Air National Guard v. FLRA, 712 F.2d 1187 (7th Cir. 1983) .................................................................................................... 7 IRS v. FLRA, 494 U.S. 922 (1990) ...................................................................................................... 26, 27, 55 IRS v. FLRA, 996 F.2d 1246 (D.C. Cir. 1993) ......................................................................................... passim Jarkesy v. SEC, 803 F.3d 15 (D.C. Cir. 2015) .................................................................................................... 16 John Glenn Presidential Comm., Inc. v. FEC, 822 F.2d 1097 (D.C. Cir. 1987) ................................................................................................ 63 Karahalios v. NFFE, Local,1263, 489 U.S. 527 (1989) ...................................................................................................... 17, 18, 19 Keeffe v. Library of Cong., 588 F. Supp. 778 (D.D.C. 1984) aff’d in part, rev’d in part, 777 F.2d 1573 (D.C. Cir. 1985) ................................................................................................ 46 Konigsberg v. State Bar of Cal., 366 U.S. 36 (1961) .................................................................................................................... 63 Local 1498, AFGE v. AFGE, AFL/CIO, 522 F.2d 486 (3d Cir. 1975)........................................................................................................ 5 Lovitsky v. Trump, No. 17-cv-00450, 2018 WL 1730278 (D.D.C. Apr. 10, 2018) ................................................. 66 Lovshin v. Dep’t of the Navy, 767 F.2d 826 (Fed. Cir. 1985) ............................................................................................ 52, 53 Lujan v. Defs. of Wildlife, 504 U.S. 555 (1992) .................................................................................................................. 60 Lyng v. Int’l Union, United Auto., Aerospace & Agric. Implement Workers of Am., 485 U.S. 360 (1988) ...................................................................................................... 62, 63, 64 Manhattan-Bronx Postal Union v. Gronouski, 350 F.2d 451 (D.C. Cir. 1965) ................................................................................................ 4, 5 Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574 (1986) .................................................................................................................. 15 vii Case 1:18-cv-01261-KBJ Document 40 Filed 07/16/18 Page 10 of 83 Meyer v. Bush, 981 F.2d 1288 (D.C. Cir. 1993) ................................................................................................ 27 Mississippi v. Johnson, 71 U.S. 475 (1867) .................................................................................................... 3, 60, 65, 66 Mori v. Dep’t of the Navy, 731 F. Supp. 2d 43 (D.D.C. 2010) ............................................................................................ 15 Myers v. United States, 272 U.S. (4 Wall.) 52 (1926) ................................................................................................ 4, 59 NAACP v. Alabama ex. Rel. Patterson, 357 U.S. 449 (1958) .................................................................................................................. 62 Nat’l Ass’n of Gov’t Emps., Inc. v. FLRA, 179 F.3d 946 (D.C. Cir. 1999) .................................................................................................. 33 Nat’l Ass’n of Gov’t Emps., Local R5-136 v. FLRA, 363 F.3d 468 (D.C. Cir. 2004) .................................................................................................. 32 Nat’l Ass’n of Regulatory Util. Comm’rs v. U.S. Dep’t of Energy, 851 F.2d 1424 (D.C. Cir. 1988) ................................................................................................ 25 Newdow v. Roberts, 603 F.3d 1002 (D.C. Cir. 2010) ................................................................................................ 66 NFFE v. FLRA, 789 F.2d 944 (D.C. Cir. 1986) .................................................................................................... 7 NFFE, Local 1319 v. Dep’t of the Interior, 526 U.S. 86 (1999) .............................................................................................................. 17, 57 Nixon v. Fitzgerald, 457 U.S. 731 (1982) .................................................................................................................. 66 Nixon v. United States, 506 U.S. 224 (1993) .................................................................................................................. 60 NTEU v. Bush, 891 F.2d 99 (5th Cir. 1989) ...................................................................................................... 61 NTEU v. Chertoff, 452 F.3d 839 (D.C. Cir. 2006) ...................................................................................... 55, 56, 57 NTEU v. FLRA, 712 F.2d 669 (D.C. Cir. 1983) .................................................................................................... 7 viii Case 1:18-cv-01261-KBJ Document 40 Filed 07/16/18 Page 11 of 83 NTEU v. FLRA, 721 F.2d 1402 (D.C. Cir. 1983) .......................................................................................... 42, 43 NTEU v. FLRA, 745 F.3d 1219 (D.C. Cir. 2014) ................................................................................................ 19 NTEU v. United States, 101 F.3d 1423 (D.C. Cir. 1996) .................................................................................. 223, 25, 26 Ohio Bureau of Emp. Servs. v. Hodory, 431 U.S. 471 (1977) .................................................................................................................. 64 Old Dominion Branch, Nat’l Ass’n of Letter Carriers, Local 4965, AFL-CIO v. Austin, 418 U.S. 264 (1974) .............................................................................................................. 2, 59 OPM v. FLRA, 864 F.2d 165 (D.C. Cir. 1988) ............................................................................................ 27, 28 Overseas Educ. Ass’n v. FLRA, 876 F.2d 960 (D.C. Cir. 1989) ............................................................................................ 20, 45 Pro-Football, Inc. v. Harjo, 284 F. Supp. 2d 96 (D.D.C. 2003) ...................................................................................... 14, 15 Regan v. Taxation with Representation of Wash., 461 U.S. 540 (1983) ........................................................................................................... 62, 63 Roberts v. U.S. Jaycees, 468 U.S. 609 (1984) .................................................................................................................. 62 Rosell v. Wood, No. Civ. A. 01-1355 RCL, 2002 WL 32396260 (D.D.C. Mar. 27, 2002) aff’d, 63 F. App’x 519 (D.C. Cir. 2003) .................................................................................. 46 Sanchez-Espinoza v. Reagan, 770 F.2d 202 (D.C. Cir. 1985) ............................................................................................ 65, 66 Sierra Club v. Envtl. Prot. Agency, 873 F.3d 946 (D.C. Cir. 2017) .................................................................................................. 52 Social Sec. Admin. v. FLRA, 956 F.2d 1280 (4th Cir. 1992) .................................................................................................... 7 Steadman v. Governor, U.S. Soldiers’ & Airmen’s Home, 918 F.2d 963 (D.C. Cir. 1990) .................................................................................................. 22 Suzal v. Dir., U.S. Info. Agency, 32 F.3d 574 (D.C. Cir. 1994) .............................................................................................. 45, 46 ix Case 1:18-cv-01261-KBJ Document 40 Filed 07/16/18 Page 12 of 83 Swan v. Clinton, 100 F.3d 973 (D.C. Cir. 1996) ............................................................................................ 65, 66 Thunder Basin Coal Co. v. Reich, 510 U.S. 200 (1994) ........................................................................................................... 16, 22 United States v. Salerno, 481 U.S. 739 (1987) .................................................................................................................. 61 U.S. Customs Serv. v. FLRA, 43 F.3d 682 (D.C. Cir. 1994) .............................................................................................. 45, 46 U.S. Customs Serv. v. FLRA, 854 F.2d 1414 (D.C. Cir. 1988) ................................................................................................ 49 U.S. Dep’t of Navy v. FLRA, 665 F.3d 1339 (D.C. Cir. 2012) ................................................................................................ 18 Village of Hoffman Estates v. Flipside, Hoffman Estates, Inc., 455 U.S. 489 (1982) .................................................................................................................. 61 Williams v. IRS, 919 F.2d 745 (D.C. Cir. 1990) ............................................................................................ 63, 64 Wood v. AFGE, 255 F. Supp. 3d 190 (D.D.C. 2017) .......................................................................................... 65 Zingg v. Dep’t of the Treasury, IRS, 388 F.3d 839 (Fed. Cir. 2004)................................................................................................... 54 ADMINISTRATIVE CASES AFGE v. Dep’t of Hous. & Urban Dev., 43 F.L.R.A. 1405 (1992) ........................................................................................................... 21 AFGE Local 1426 & U.S. Dep’t of the Army, Fort Sheridan, IL, 45 F.L.R.A. 867 (1992) ............................................................................................................. 49 AFGE Local 3732 & U.S. Dep’t of Transp., U.S. Merch. Marine Acad., Kings Point, NY, 39 F.L.R.A. 187 (1991) ....................................................................................................... 49, 50 Dep’t of Def., Def. Contract Audit Agency Cent. Region & AFGE, Local 3529, 37 F.L.R.A. 1218 (1990) ........................................................................................................... 27 Dep’t of the Interior, Wash., D.C. & U.S. Geological Survey, Reston, Va. v. NFFE, 52 F.L.R.A. 475 (1996) ............................................................................................................. 21 x Case 1:18-cv-01261-KBJ Document 40 Filed 07/16/18 Page 13 of 83 Douglas v. Veterans Administration, 5 M.S.P.R. 280 (1981) .............................................................................................................. 52 In re Dep’t of Def., Mont. Air Nat’l Guard, Great Falls, Mont. & Ass’n of Civilian Technicians, Case No. 00 FSIP 35 (Apr. 18, 2000) ....................................................................................... 46 Int’l Bhd of Elec. Workers v. Dep’t of the Interior, 25 F.L.R.A. 201 (1987)............................................................................................................. 38 Lee v. EPA, 115 M.S.P.R. 533 (2010) .......................................................................................................... 50 Melnick v. HUD., 42 M.S.P.R. 93 (1989), aff’d, 899 F.2d 1228 (Fed. Cir.1990).................................................. 50 NFFE, Local 15 and U.S. Dep’t of the Army, 30 F.L.R.A. 1046 (1988) ........................................................................................................... 37 NFFE, Local 1214 & U.S. Dept. of the Army Headquarters, U.S. Army Training Ctr. & Fort Jackson, Fort Jackson, SC, 51 F.L.R.A. 1362 (1996) ........................................................................................................... 49 NFFE, Local 1655 v. Dep’t,of Def., 49 F.L.R.A. 874 (1994) ...................................................................................................... 21, 27 NFFE, Local 2015 and U.S. Dep’t of Interior Nat’l Park Serv., 41 F.L.R.A. 1158 (1991) ........................................................................................................... 37 NTEU v. Dep’t of the Treasury, 42 F.L.R.A. 377 (1991) ............................................................................................................. 21 Patent Office Prof’l Ass’n Union v. Patent & Trademark Office Dep’t of Commerce, 29 F.L.R.A. 1389 (1987) ........................................................................................................... 51 Towne v. Dep’t of Air Force, No. SF-0432-11-0591-I-2, 2013 WL 5781296 (M.S.P.B. Oct. 28, 2013) ................................ 50 U.S. Dep’t of the Army Corp of Eng’rs, Memphis Dist., Memphis, Tenn. and NFFE, 52 F.L.R.A. 920 (1997) ............................................................................................................. 39 Wood v. Dep’t of the Navy, 27 M.S.P.R. 659 (1985) ............................................................................................................ 51 CONSTITUTIONAL PROVISIONS U.S. Const. art. I ........................................................................................................................... 58 xi Case 1:18-cv-01261-KBJ Document 40 Filed 07/16/18 Page 14 of 83 U.S. Const. art. II ........................................................................................................................... 4 U.S. Const. art. II §1 ................................................................................................................. 4, 59 U.S. Const. art. II §3 ....................................................................................................... 2, 3, 58, 60 U.S. Const. art. III ......................................................................................................................... 33 U.S. Const. amend. I ................................................................................................................. 4, 64 STATUTES 3 U.S.C. § 301 ............................................................................................................................... 44 5 U.S.C. § 105 ............................................................................................................................... 28 5 U.S.C. § 1103 ............................................................................................................................. 44 5 U.S.C. § 1104 ............................................................................................................................. 44 5 U.S.C. § 3301 ............................................................................................................................. 59 5 U.S.C. § 4302 ........................................................................................................................ 9, 50 5 U.S.C. § 4303 ............................................................................................................................... 9 5 U.S.C. § 4304 ............................................................................................................................. 10 5 U.S.C. § 7101 et seq................................................................................................................. 1, 5 5 U.S.C. § 7101 ............................................................................................................................... 6 5 U.S.C. § 7102 ........................................................................................................................ 5, 38 5 U.S.C. § 7103 ................................................................................................................... 9, 28, 47 5 U.S.C. § 7105 ...................................................................................................................... passim 5 U.S.C. § 7106 ...................................................................................................................... passim 5 U.S.C. § 7114 ..................................................................................................................... passim 5 U.S.C. § 7116 ......................................................................................................................... 7, 19 xii Case 1:18-cv-01261-KBJ Document 40 Filed 07/16/18 Page 15 of 83 5 U.S.C. § 7117 ...................................................................................................................... passim 5 U.S.C. § 7118 ................................................................................................................... 7, 18, 31 5 U.S.C. § 7119 ............................................................................................................................... 7 5 U.S.C. § 7121 ...................................................................................................................... passim 5 U.S.C. § 7122 ............................................................................................................................. 18 5 U.S.C. § 7123 ............................................................................................................. 8, 17, 18, 19 5 U.S.C. § 7131 ...................................................................................................................... passim 5 U.S.C. § 7132 ............................................................................................................................. 19 5 U.S.C. § 7134 ....................................................................................................................... 43, 44 5 U.S.C. § 7301 ...................................................................................................................... passim 5 U.S.C. § 9701 ............................................................................................................................. 55 18 U.S.C. § 1913 ........................................................................................................................... 39 Civil Service Reform Act of 1978, Pub. L. No. 95–454, 92 Stat. 111 ................................................................................................ 5 H.R. Rep. No. 95-1403 (1978), reprinted in 1978 U.S.C.C.A.N. 2723 ......................................... 6 H. R. Conf. Rep. No. 95-1717 (1978), reprinted in 1978 U.S.C.C.A.N. 2860 ............................ 27 FEDERAL RULES Fed. R. Civ. P. 12 .......................................................................................................................... 65 Fed. R. Civ. P. 56 .......................................................................................................................... 14 FEDERAL REGULATIONS 5 C.F.R. § 430.210 ........................................................................................................................ 10 5 C.F.R. § 432.103 .......................................................................................................................... 9 5 C.F.R. § 432.104 .................................................................................................................... 9, 50 EXECUTIVE ORDERS xiii Case 1:18-cv-01261-KBJ Document 40 Filed 07/16/18 Page 16 of 83 Executive Order No. 10,988, 3 C.F.R. 521 (1959-1963) .......................................................... 5, 35 Executive Order No. 11,491, 3 C.F.R. 861 (1966-1970) .......................................................... 5, 35 Executive Order No. 11,616, 3 C.F.R. 605 (1971-1975) .............................................................. 35 Executive Order No. 11,636, 3 C.F.R. 634 (1971-1975) ................................................................ 5 Executive Order No. 11,838, 3 C.F.R. 957 (1971-1975) ................................................................ 5 Executive Order No. 12,564, 51 Fed. Reg. 32,889 (Sept. 15, 1986) ............................................ 27 Executive Order No. 12,871, 58 Fed. Reg. 52,201 (Oct. 1, 2013) ......................................... 33, 34 Executive Order No. 13,836, 83 Fed. Reg. 25,239 (June 1, 2018) ........................................ passim Executive Order No. 13,837, 83 Fed. Reg. 25,335 (June 1, 2018) ........................................ passim Executive Order No. 13,839, 83 Fed. Reg. 25,343 (June 1, 2018) ........................................ passim OTHER AUTHORITIES Application of 18 U.S.C. § 1913 to Grass Roots Lobbying by Union Representatives, 29 Op. O.L.C. 179 (2005) ......................................................................................................... 39 xiv Case 1:18-cv-01261-KBJ Document 40 Filed 07/16/18 Page 17 of 83 INTRODUCTION On May 25, 2018, the President issued three Executive Orders designed to promote more efficient and effective approaches to federal-sector collective bargaining and labor-management relations. Among other things, these Orders seek to eliminate unnecessary burdens and delays in the collective bargaining process between agencies and unions, to ensure that federal employees spend the clear majority of their paid time working on behalf of the public, and to promote accountability in the federal workforce by streamlining agency efforts to remove employees whose performance falls below acceptable standards. All of these measures are to be implemented within the framework established by the Federal Service Labor–Management Relations Statute, 5 U.S.C. § 7101 et seq. (the Statute), which governs federal-sector collective bargaining. While passage of the Statute in 1978 replaced the previous system of federal labor relations governed solely by Executive Order, Congress continued to acknowledge a substantial Executive Branch role to play in defining the scope of collective bargaining across the federal government and in setting consistent negotiating policy for employing agencies. Plaintiffs in these four consolidated cases, a collection of federal employee unions, challenge numerous provisions of the Orders under overlapping statutory and constitutional legal theories. None of their challenges has merit. As a threshold matter, Plaintiffs’ claims fall outside the Court’s jurisdiction for two independent reasons. First, in enacting the Statute, Congress designated the Federal Labor Relations Authority (FLRA) and the courts of appeals—not the district courts—as the proper forums to adjudicate claims of the sort Plaintiffs advance here. Because Congress intended that these challenges be channeled through this dedicated review mechanism, culminating in judicial review in a court of appeals, this Court lacks jurisdiction to hear these consolidated cases. 1 Case 1:18-cv-01261-KBJ Document 40 Filed 07/16/18 Page 18 of 83 Second, even if the Court concludes that it may hear Plaintiffs’ claims, these claims are not prudentially ripe. As the Orders make plain, numerous provisions that Plaintiffs challenge are to be implemented only pursuant to notice-and-comment rulemaking by the Office of Personnel Management (OPM). Those rulemakings have not yet been proposed, let alone concluded. Other provisions of the Orders contemplate negotiations between individual agencies and unions that have not been concluded, much less commenced in many cases. Only when such regulations become final or negotiations culminate in FLRA decisions reviewable in the court of appeals would the issues implicated by Plaintiffs’ claims be fit for judicial review. In all events, Plaintiffs’ claims cannot survive on their merits. Contrary to Plaintiffs’ insistence that the orders are an unlawful exercise of Presidential power, they fall well within the President’s authority. As the Supreme Court and D.C. Circuit have held, the President has ample statutory authority to “establish a labor-management relations system for federal employment,” Old Dominion Branch, Nat’l Ass’n of Letter Carriers, Local 4965, AFL-CIO v. Austin, 418 U.S. 264, 273-74 and 273 n.5 (1974)—a power far greater than the measures challenged here—and likewise possesses authority to supervise and guide federal agencies and officials in their execution of federal laws, including the Statute, Bldg. & Const. Trades Dep’t, AFL-CIO v. Allbaugh, 295 F.3d 28, 32 (D.C. Cir. 2002). In directing his subordinates to exercise their discretion consistent with statutory authority and to advance the efficient functioning of the civil service, the President is carrying out his constitutional responsibilities, not violating them as Plaintiffs contend. Plaintiffs’ attempts to dress up their core assertions of ultra vires Executive action as violations of the separation-of-powers doctrine and the Take Care Clause also must be dismissed. Plaintiffs’ separation-of-powers claim fails at the outset because it does no more than recycle their statutory conflict claims and the Supreme Court has squarely rejected the proposition “that 2 Case 1:18-cv-01261-KBJ Document 40 Filed 07/16/18 Page 19 of 83 whenever the President acts in excess of his statutory authority, he also violates the constitutional separation-of-powers doctrine.” Dalton v. Spencer, 511 U.S. 462, 471 (1994). Their Take Care Clause claims are similarly foreclosed by the Supreme Court’s recognition that “the duty of the President in the exercise of the power to see that the laws are faithfully executed” “is purely executive and political,” Mississippi v. Johnson, 71 U.S. (4 Wall.) 475, 499 (1867), and therefore not a proper subject of judicial intervention. Even if these claims were justiciable, they would fail for the same reason that Plaintiffs’ claims of ultra vires Executive action do: there is no conflict with the Statute. The challenged provisions of the Orders are wholly consistent with what Congress contemplated when it created the modern federal collective bargaining regime. Critically, section 7117(a)(1) of the Statute “permits the government to pull a subject out of the bargaining process by issuing a governmentwide rule that creates a regime inconsistent with bargaining.” IRS v. FLRA, 996 F.2d 1246, 1250 (D.C. Cir. 1993). This section alone, unmentioned by Plaintiffs, disposes of a large part of their case. Many of the provisions that Plaintiffs challenge are rules that § 7117(a)(1) envisions the Executive Branch might create to advance certain Government-wide interests and thereby limit the scope of collective bargaining. When the President does as he has here—set uniform, Government-wide rules on certain topics that preclude agencies from entertaining inconsistent proposals during negotiations—there can be no conflict with the duty to bargain. And for those challenged provisions that are not Government-wide rules, the President has done no more than set goals for agencies to achieve in collective bargaining negotiations, none of which are contrary to the Statute. Plaintiffs’ suggestion that the President may not establish policy objectives for his subordinates to meet lacks any basis. 3 Case 1:18-cv-01261-KBJ Document 40 Filed 07/16/18 Page 20 of 83 Plaintiffs’ remaining claim—that the Government’s decision not to pay employees for pursuing third-party grievances against their employing agencies violates their First Amendment right to free association—is baseless. The challenged provision imposes no restriction on the right of a union or its members to pursue a third-party grievance and in fact encourages agencies to grant leave to employees for that purpose. In any event, a decision not to subsidize the exercise of a First Amendment right does not amount to an infringement of that right. Finally, were Plaintiffs to prevail on any of their claims, the remedy they seek is not permissible. The President’s official, non-ministerial conduct may not be enjoined, nor is it appropriate to enter declaratory relief against him. Meanwhile, insofar as Plaintiffs seek to enjoin OPM and its Director, that request is premature since OPM has not yet begun the rulemaking process to which Plaintiffs object. For all of these reasons, Plaintiffs’ Motions for Summary Judgment should be denied, and summary judgment entered for Defendants on all of Plaintiffs’ claims. BACKGROUND I. THE PRESIDENT’S AUTHORITY TO CONTROL THE CONDUCT OF FEDERAL EMPLOYEES Article II of the Constitution provides that “[the executive Power shall be vested in a President of the United States of America.” U.S. Const., Art. II, § 1, cl. 1. This power “necessarily encompasses ‘general administrative control of those executing the laws,’ throughout the Executive Branch of government,” Bldg. & Const. Trades Dep’t, AFL-CIO, 295 F.3d at 32 (quoting Myers v. United States, 272 U.S. 52, 164 (1926)), and includes the authority to make “improvement[s] in the efficiency of federal employment.” Manhattan-Bronx Postal Union v. Gronouski, 350 F.2d 451, 456 (D.C. Cir. 1965). Congress has further recognized this aspect of 4 Case 1:18-cv-01261-KBJ Document 40 Filed 07/16/18 Page 21 of 83 Executive power by enacting, inter alia, 5 U.S.C. § 7301, which provides that “[t]he President may prescribe regulations for the conduct of employees in the executive branch.” Prior to Congress’s enactment of the Statute, the President routinely “regulate[d] labor relations in the federal government and internal matters of unions representing federal government employees” by Executive Order. See, e.g., Local 1498, AFGE v. AFGE, AFL/CIO, 522 F.2d 486, 491 (3d Cir. 1975). “This was a project of the Executive, and not of the Congress.” ManhattanBronx Postal Union v. Gronouski, 350 F.2d 451, 452 (D.C. Cir. 1965). Indeed, President Kennedy took the first formal measure to regulate federal-sector labor relations when he issued Executive Order No. 10,988, in 1962. Exec. Order No. 10,988, 3 C.F.R. 521 (1959–1963); see Bureau of Alcohol, Tobacco and Firearms v. FLRA, 464 U.S. 89, 91-92 (1983) (“BATF”). In doing so, he recognized that labor relations are closely linked to “the efficient administration of the Government” and the “effective conduct of public business.” See Exec. Order No. 10,988. Multiple Presidents subsequently amended that Order. See Exec. Order No. 11491, 3 C.F.R. 861 (1966–1970), as amended by Exec. Orders Nos. 11616, 11636, and 11838, 3 C.F.R. 605, 634 (1971–1975) and 3 C.F.R. 957 (1971–1975). II. THE FEDERAL SERVICE LABOR–MANAGEMENT RELATIONS STATUTE A. General Statutory Framework Against this backdrop, Congress in 1978 passed the Federal Service Labor–Management Relations Statute, 5 U.S.C. § 7101 et seq. The Statute, enacted as Title VII of the Civil Service Reform Act of 1978, Pub. L. No. 95–454, 92 Stat. 111, provides a “comprehensive . . . scheme governing labor relations between federal agencies and their employees.” BATF, 464 U.S. at 91. The Statute establishes the right of federal employees to organize, select an exclusive representative, and engage in collective bargaining about a circumscribed range of topics. 5 U.S.C. 5 Case 1:18-cv-01261-KBJ Document 40 Filed 07/16/18 Page 22 of 83 § 7102. It also requires the management officials of federal agencies to meet and bargain in good faith with the employees’ chosen union for the purpose “of arriving at a collective bargaining agreement.” 5 U.S.C. § 7114(a)(4). These directives are subject to a variety of limitations, however. As the Supreme Court has noted, Congress “[r]ecogniz[ed] ‘the special requirements and needs of the Government,’” and the Statute therefore “exempts certain matters from the duty to negotiate.” FLRA v. Aberdeen Proving Ground, 485 U.S. 409, 410 (1988) (per curiam) (quoting 5 U.S.C. § 7101(b)). Section 7117(a)(1), for instance, precludes an agency from bargaining over proposals that are “inconsistent with any Federal law or any Government-wide rule or regulation,” and over “matters which are the subject of . . . a Government-wide rule or regulation.” 5 U.S.C. § 7117(a)(1). And the Statute does not disturb the President’s express statutory authority to prescribe such Government-wide rules for the conduct of employees in the Executive Branch, id. at § 7301, or for the admission of individuals into the civil service, id. at § 3301. Moreover, section 7106(a) provides that “nothing in this chapter shall affect the authority of any management official of any agency” with respect to certain enumerated “management rights.” See H.R. Rep. No. 95-1403 (1978), reprinted in U.S.C.C.A.N. 2723 (Section 7106 “place[s] limits on the number of subjects about which agency management may bargain with a labor organization.”). Finally, the Statute itself makes clear that “[e]xcept as otherwise expressly provided,” none of its provisions should be construed to “limit, curtail, abolish, or terminate any function of, or authority available to, the President which the President had immediately before” the Statute’s effective date. Pub. L. 95-454, § 804, 92 Stat. 111. For any negotiability disputes that arise in the course of the bargaining process, the Statute provides a dedicated mechanism for their resolution. If management officials decline to negotiate 6 Case 1:18-cv-01261-KBJ Document 40 Filed 07/16/18 Page 23 of 83 over a union’s bargaining proposal, maintaining “that the duty to bargain in good faith does not extend to [such] matter,” 5 U.S.C. § 7117(c)(1), the union may file a negotiability appeal with the FLRA. See id. §§ 7105(a)(2)(E), 7117(c). The FLRA then “expedites proceedings” and, “at the earliest practicable date,” decides whether the union’s proposal is subject to the bargaining obligation. Id. § 7117(c)(6); see BATF, 464 U.S. at 93. A union or agency may also seek to resolve a dispute over whether there is a duty to bargain over a particular proposal by filing an unfair labor practice charge. See 5 U.S.C. § 7116(a)(5), (b)(5). Under §§ 7105(a)(2)(G) and 7118(a)(6), the FLRA has jurisdiction to consider charges of unfair labor practices. Apart from disputes over negotiability and unfair labor practice charges, if a union and an agency reach an impasse in their negotiations, including after a determination by the FLRA that a union’s proposal is subject to the bargaining obligation, either party may seek resolution of the substantive disagreements from the Federal Service Impasses Panel (the Panel). See id. § 7119(b)(1); see also Social Sec. Admin. v. FLRA, 956 F.2d 1280, 1287 (4th Cir. 1992). The Panel may “take whatever action is necessary and not inconsistent with [the Statute] to resolve the impasse,” 5 U.S.C. § 7119(c)(5)(B)(iii), such as adopting a compromise position or imposing either party’s proposal on the counterparty. Id. § 7119(c)(5)(C); see, e.g., NFFE v. FLRA, 789 F.2d 944, 945 (D.C. Cir. 1986); NTEU v. FLRA, 712 F.2d 669, 671 n.5 (D.C. Cir. 1983). “Thus, it is possible that a proposal held negotiable by the FLRA may be imposed on the parties by the Federal Service Impasses Panel in the event the agency and the union do not ultimately agree.” Ind. Air National Guard v. FLRA, 712 F.2d 1187, 1189 n.1 (7th Cir. 1983); accord HHS v. FLRA, 844 F.2d 1087, 1089 (4th Cir. 1988) (en banc). If either party fails to comply with any final action ordered by the Panel, such action constitutes an unfair labor practice, for which the other party 7 Case 1:18-cv-01261-KBJ Document 40 Filed 07/16/18 Page 24 of 83 may seek redress at the FLRA. See Council of Prison Locals v. Brewer, 735 F.2d 1497, 1500 (D.C. Cir. 1984). The FLRA’s final orders, including orders resolving negotiability disputes and unfair labor practice charges, such as those resulting from failure to comply with final action ordered by the Panel, are, with few exceptions, subject to judicial review “in the United States court of appeals in the circuit in which the [aggrieved] person resides or transacts business or in the United States Court of Appeals for the District of Columbia.” 5 U.S.C. § 7123(a). B. Employees’ Use of Official Time Congress mandated the authorization of paid “official time” for certain enumerated activities of employees and prohibited it for certain others. First, any employee representing a union “in the negotiation of a collective bargaining agreement” shall be authorized official time. 5 U.S.C. § 7131(a). Second, Congress authorized the FLRA to determine whether to authorize official time for an employee “participating for, or on behalf of a [union] in any phase of proceedings before the [FLRA].” Id. § 7131(c). Finally, Congress provided that any employee’s activities “relating to the internal business of a [union]” are ineligible for official time and must instead be performed when the employee is in a non-duty status. Id. § 7131(b). For other activities, when representing a union or in connection with any other matter covered by the Statute, an employee “shall be granted official time in any amount the agency and the [union] agree to be reasonable, necessary, and in the public interest.” 5 U.S.C. § 7131(d). Thus, Congress left to agencies and unions in individual negotiation settings to determine the specific activities for which official time may be authorized, so long as consistent with other laws and regulations. See Ass’n of Civilian Technicians v. FLRA, 269 F.3d 1119, 1120 (D.C. Cir. 2001). 8 Case 1:18-cv-01261-KBJ Document 40 Filed 07/16/18 Page 25 of 83 C. Negotiated Grievance Procedures The Statute requires that all federal collective bargaining agreements (CBAs) “shall provide procedures for the settlement of grievances, including questions of arbitrability.” 5 U.S.C. § 7121(a)(1). While “grievances” is broadly defined in § 7103(a)(9),1 a CBA may “exclude any matter from the application of the grievance procedures which are provided for in the agreement.” Id. § 7121(a)(2). With certain exceptions not pertinent here, these negotiated grievance procedures “shall be the exclusive procedures for resolving grievances.” Id. § 7121(a)(1). D. Removal of Employees for Unacceptable Performance Subject to provision of 30 days’ advance written notice and the employee’s right to counsel and to respond, an agency may “remove an employee for unacceptable performance.” 5 U.S.C. § 4303(a). To facilitate various personnel actions, including removals of employees for unacceptable performance, Congress has required each federal agency to develop a performance appraisal system. Id. § 4302(a). A performance appraisal system must provide for, among other things, “removing employees who continue to have unacceptable performance but only after an opportunity to demonstrate acceptable performance.” Id. § 4302(c)(6). OPM regulations provide that, if “an employee’s performance is determined to be unacceptable in one or more critical elements,” “the agency shall afford the employee a reasonable opportunity to demonstrate acceptable performance, commensurate with the duties and responsibilities of the employee’s position.” 5 C.F.R. § 432.104; see also id. § 432.103(d) (defining an opportunity to demonstrate acceptable performance as “a reasonable chance for the employee . . . to demonstrate acceptable 1 “Grievances,” as defined in § 7103(a)(9), include complaints by employees and unions “concerning any matter relating to the employment” of an employee, 5 U.S.C.§ 7103(a)(9)(A), (B), complaints concerning the effect, interpretation, or alleged breach of the collective bargaining agreement, id. § 7103(a)(9)(C)(i), and “any complaint . . . by any employee labor organization, or agency concerning . . . any claimed violation, misinterpretation, or misapplication of any law, rule, or regulation affecting conditions of employment,” id. § 7103(a)(9)(C)(ii). 9 Case 1:18-cv-01261-KBJ Document 40 Filed 07/16/18 Page 26 of 83 performance in the critical element(s) at issue”). An agency’s performance appraisal system is subject to review and approval by OPM. See 5 U.S.C. § 4304(b)(1); 5 C.F.R. § 430.210. III. THE PRESIDENT’S MAY 25, 2018 EXECUTIVE ORDERS On May 25, 2018, the President signed three Executive Orders addressing labor relations in the federal sector. To fulfill the President’s objective of a more effective and efficient Government, these Orders direct agencies subject to the Statute to adopt particular positions in collective bargaining negotiations, prescribe certain rules of employee conduct, and impose certain requirements on agencies, all subject to existing law, including the Statute, and any CBAs in effect when the Orders were issued. A. Executive Order No. 13,836, Developing Efficient, Effective, and CostReducing Approaches to Federal Sector Collective Bargaining (Collective Bargaining Order) Executive Order No. 13,836 (the Collective Bargaining Order) is designed “to assist executive departments and agencies . . . in developing efficient, effective, and cost-reducing collective bargaining agreements.” Exec. Order No. 13,836, 83 Fed. Reg. 25,239 (June 1, 2018). The Order requires that federal agencies make efforts to secure CBAs that satisfy this and other objectives. Sections 5 and 6 of this Order are relevant here. Generally, Section 5 establishes certain “temporal objectives” for agencies in negotiating grounds rules and term CBAs—generally, 6 weeks or less for ground rules and between 4 and 6 months for a term CBA should “ordinarily be considered reasonable.” Collective Bargaining Order, Sec. 5(a). When such negotiations last longer than a reasonable period, Section 5(a) directs agencies to consider seeking the assistance of the Federal Mediation and Conciliation Service or the Panel. Section 5(e) calls for agencies, during negotiations, to request the exchange of written proposals to facilitate resolution of any negotiability issues that may arise. If an agency’s existing 10 Case 1:18-cv-01261-KBJ Document 40 Filed 07/16/18 Page 27 of 83 agreements require something other than exchange of written proposals, Section 5(e) directs the agency to take steps to eliminate such requirements. Section 6 directs heads of agencies subject to the Statute not to negotiate over the subjects set forth in 5 U.S.C. § 7106(b)(1). That statutory provision, labeled “Management rights,” allows—but does not require—an agency to negotiate “on the numbers, types, and grades of employees or positions assigned to any organizational subdivision, work project, or tour of duty, or on the technology, methods, and means of performing work.” 5 U.S.C. § 7106(b)(1). In effect, Section 6 constitutes a binding directive across federal agencies involved in collective bargaining not to exercise their statutory discretion to negotiate over the subjects listed in § 7106(b)(1). The Collective Bargaining Order expressly provides that it “shall be implemented consistent with applicable law” and that it shall not “abrogate any CBA in effect on the date of [the] order.” Collective Bargaining Order, Sec. 9(b), (c). Executive Order No. 13,837, Ensuring Transparency, Accountability, and Efficiency in Taxpayer-Funded Union Time Use (Official Time Order) Executive Order No. 13,837 (the “Official Time Order”) reflects the President’s policy decision to “eliminate[] unnecessary, inefficient, or unreasonable expenditures” and “ensure that taxpayer-funded union time is used efficiently and authorized in amounts that are reasonable, necessary, and in the public interest.”2 Exec. Order No. 13,837, 83 Fed. Reg. 25,335 (June 1, 2018). The Order states that federal employees should spend the clear majority of their duty hours on agency business; that agencies should not pay, unless required by law, for unions’ expenses; that any unrestricted grants of official time should be eliminated to the extent consistent with the 2 Executive Order No. 13,837 uses the term “taxpayer-funded union time” synonymously with “official time,” as defined in the Statute. Official Time Order, Sec. 2(i). For simplicity and to reduce any potential confusion, this Memorandum uses the statutory term “official time.” 11 Case 1:18-cv-01261-KBJ Document 40 Filed 07/16/18 Page 28 of 83 Statute; and that use of official time should be pre-authorized and monitored by agencies to ensure usage only for authorized purposes. Aside from challenges to the definitional provisions for “taxpayer-funded union time” and “union time rate,” Plaintiffs primarily challenge Sections 3 and 4 of the Official Time Order. Section 3 provides guidance to agencies in negotiating official time grants under § 7131(d) of the Statute, while acknowledging that employees are entitled to official time for certain activities pursuant to §§ 7131(a) and (c). In essence, Section 3 instructs agencies that a bargaining unit’s union time rate3 exceeding one hour is presumptively not “reasonable, necessary, and in the public interest,” and directs agencies to commit the effort “to strive for a negotiated union time rate of [one] hour or less.” Official Time Order, Sec. 3(a). But the Order also permits agencies to authorize official time that would result in a union time rate exceeding one hour. Id., Sec. 3(b). In such cases, the agency head must simply report the agreement to the President and “explain why such expenditures are reasonable, necessary, and in the public interest.” Id. Section 4(a) consists of a set of five Government-wide rules that restrict employees’ use of paid time and Government property. These rules, which apply only to conduct taken while on official duty, prohibit employees from engaging in lobbying activities during paid time except in their official capacities as employees, set a cap on the amount of paid time employees may spend performing non-agency business (while ensuring employees can claim paid time for activities under §§ 7131(a) and (c)), disallow certain free or discounted use of Government property or resources by employees acting on behalf of a union, and prohibit employees from using official time to prepare or pursue grievances on behalf of third parties under negotiated grievance procedures. 3 The “union time rate” is defined as the total number of hours in a fiscal year that employees in a bargaining unit use for official time, divided by the number of employees in the bargaining unit. Official Time Order, Sec. 2(j). 12 Case 1:18-cv-01261-KBJ Document 40 Filed 07/16/18 Page 29 of 83 To administer the requirements of Section 4, the Order obligates OPM to “examine whether existing regulations are consistent with the rules set forth in this section.” Id., Sec. 4(c)(i). If not, OPM is to propose, as soon as practicable, new regulations “to clarify and assist agencies in implementing these rules.” Id. Further, each agency head is to ensure compliance with Section 4’s requirements “to the extent consistent with applicable law and existing collective bargaining agreements.” Id., Sec. 4(c)(ii). If an agency’s existing regulations, policies, and practices are not consistent with Section 4’s requirements, the agency head “shall take all appropriate steps consistent with applicable law to bring them into compliance . . . as soon as practicable.” Id. The Official Time Order expressly provides that it “shall be implemented consistent with applicable law” and that it shall not “abrogate any collective bargaining agreement in effect on the date of [the] order.” Id., Sec. 9(a), (d). The Order also directs each agency to “consult with employee labor representatives about the implementation of [the] order.” Id., Sec. 8(b). Executive Order No. 13,839, Promoting Accountability and Streamlining Removal Procedures Consistent With Merit System Principles (Removal Procedures Order) Executive Order No. 13,839 (the Removal Procedures Order) rests on the conclusion that a “[f]ailure to address unacceptable performance and misconduct undermines morale, burdens good performers with subpar colleagues, and inhibits the ability of executive agencies . . . to accomplish their missions.” Exec. Order No. 13,839, Sec. 1, 83 Fed. Reg. 25,343 (June 1, 2018). That position is supported by the Federal Employee Viewpoint Survey’s finding “that less than one-third of Federal employees believe that the Government deals with poor performers effectively.” Id. The Order thus includes measures to “advance[] the ability of supervisors in agencies to promote civil servant accountability consistent with merit system principles while simultaneously recognizing employees’ procedural rights and protections.” challenge Sections 2, 3, and 4 of the Order. 13 Id. Plaintiffs Case 1:18-cv-01261-KBJ Document 40 Filed 07/16/18 Page 30 of 83 Section 2 articulates a set of principles regarding federal employee accountability, including that agency supervisors “should not be required to use progressive discipline,” that “disciplinary action should be calibrated to the specific facts and circumstances of each individual employee’s situation,” and that “agencies are not prohibited from removing an employee simply because they did not remove a different employee for comparable conduct.” Id., Sec. 2(a)-(c). Section 3 encourages agencies, whenever reasonable, to exclude from negotiated grievance procedures disputes concerning employee removals for misconduct or unacceptable performance. Section 4(a) directs agencies, to the extent consistent with applicable law, to exclude from their negotiated grievance or binding arbitration procedures any disputes concerning either the assignment of ratings of record or the award of any form of incentive pay. Section 4(c) provides that agencies may generally not afford an employee facing possible removal a period of greater than thirty days to demonstrate acceptable performance, but includes an exception to this directive “when the agency determines in its sole and exclusive discretion that a longer period is necessary to provide sufficient time to evaluate an employee’s performance.” The Removal Procedures Order expressly provides that it “shall be implemented consistent with applicable law” and that it shall not “abrogate any collective bargaining agreement in effect on the date of [the] order.” Id., Sec. 8(b), (c). LEGAL STANDARD Rule 56(a) of the Federal Rules of Civil Procedure provides that a court “shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” “Although a court should draw all inferences from the supporting records submitted by the nonmoving party, the mere existence of a factual dispute, by itself, is not sufficient to bar summary judgment.” Pro-Football, Inc. v. Harjo, 14 Case 1:18-cv-01261-KBJ Document 40 Filed 07/16/18 Page 31 of 83 284 F. Supp. 2d 96, 112 (D.D.C. 2003) (citation omitted). Rather, the dispute must regard a question of fact that is material, meaning that it is “capable of affecting the substantive outcome of the litigation.” Id. That is determined by “look[ing] to the substantive law on which each claim rests.” Mori v. Dep’t of the Navy, 731 F. Supp. 2d 43, 45 (D.D.C. 2010) (citation omitted). The dispute must also be genuine, meaning that it is “supported by sufficiently admissible evidence such that a reasonable trier-of-fact could find for the nonmoving party.” Pro-Football, 284 F. Supp. 2d at 112. “In ruling on cross-motions for summary judgment, the court shall grant summary judgment only if one of the parties is entitled to judgment as a matter of law upon material facts that are not genuinely disputed.” Mori, 731 F. Supp. 2d at 46 (citation omitted). Summary judgment may also be granted in favor of the movant where “the nonmoving party has failed to make a sufficient showing on an essential element of her case with respect to which she has the burden of proof, Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986), such as through “the absence of evidence proffered by the opposing party,” Mori, 731 F. Supp. 2d at 46 (citing Celotex, 477 U.S. at 322). In opposing summary judgment, “the nonmoving party bears the affirmative duty to present, by affidavits or other means, specific facts showing that there is a genuine issue for trial.” Pro-Football, 284 F. Supp. 2d at 113. “[M]etaphysical doubt as to the material facts” does not suffice. Id. (quoting Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986)). ARGUMENT PLAINTIFFS’ CLAIMS FALL OUTSIDE THIS COURT’S JURISDICTION. Plaintiffs’ claims fall outside this Court’s jurisdiction for two independent reasons. First, in the Statute, Congress established a dedicated statutory review scheme for disputes over the scope and manner of collective bargaining, including an opportunity for judicial review in a court of appeals. A plaintiff may not bypass that scheme by seeking instead to obtain review in district 15 Case 1:18-cv-01261-KBJ Document 40 Filed 07/16/18 Page 32 of 83 court. Second, Plaintiffs’ claims are not prudentially ripe because they will not be fit for judicial review until subsequent action has occurred, including forthcoming rulemaking proceedings by OPM, any necessary revisions to agency policies, and developments in individual negotiating settings. For either of these reasons, Plaintiffs’ claims should be dismissed for lack of jurisdiction and summary judgment entered for Defendants. A. Congress Already Foreclosed Plaintiffs’ Attempt to Bypass the Statute’s Exclusive Review Scheme by Filing Suit in District Court. Plaintiffs cannot proceed in this Court because Congress did not provide for district courts to review the type of claims that Plaintiffs have asserted. Instead, in the Statute, Congress established a detailed, exclusive review mechanism for such claims: They must be addressed first by the FLRA, which possesses specialized expertise in the relevant area, followed, if necessary, by judicial review in the courts of appeals. Under Supreme Court precedent, Plaintiffs may not bypass this dedicated review scheme by proceeding to sue directly in district court. When a statute expressly provides for judicial review following review by an administrative review body, “it is ordinarily supposed that Congress intended that procedure to be the exclusive means of obtaining judicial review in those cases to which it applies.” Arch Coal, Inc. v. Acosta, 888 F.3d 493, 498 (D.C. Cir. 2018) (quoting Jarkesy v. SEC, 803 F.3d 15, 15 (D.C. Cir. 2015) (internal quotation marks omitted)). Therefore, when a plaintiff’s claim can be “meaningfully addressed in the Court of Appeals” under an exclusive statutory review scheme established by Congress, a district court lacks jurisdiction. Thunder Basin Coal Co. v. Reich, 510 U.S. 200, 201 (1994). “Under Thunder Basin’s framework, courts determine that Congress intended that a litigant proceed exclusively through a statutory scheme of administrative and judicial review when (i) such intent is fairly discernible in the statutory scheme, and (ii) the 16 Case 1:18-cv-01261-KBJ Document 40 Filed 07/16/18 Page 33 of 83 litigant’s claims are of the type Congress intended to be reviewed within [the] statutory structure.” Arch Coal, 888 F.3d at 498. Here, Congress intended for the claims asserted by Plaintiffs to be heard in the first instance by the FLRA, to which Congress delegated “rulemaking, adjudicatory, and policymaking powers” under the Statute. NFFE, Local 1319 v. Dep’t of the Interior, 526 U.S. 86, 87 (1999). As the Supreme Court has held, “the congressional scheme . . . leave[s] the enforcement of union and agency duties under the [Statute] to the General Counsel and the FLRA and . . . confine[s] the courts to the role given them under the [Statute].” Karahalios v. NFFE, Local 1263, 489 U.S. 527, 536–37 (1989) (implied right of action alleging violation of duty of fair representation could not be brought in district court). The FLRA’s powers granted by Congress include, inter alia, the power to “resolve issues relating to the duty to bargain,” 5 U.S.C. § 7105(a)(2)(E), and the power to resolve disputes about whether the duty to bargain in good faith extends to a particular matter, id. §§ 7105(a)(2)(D), 7117(c). In other words, Congress created and specifically empowered the FLRA to resolve just the type of disputes concerning negotiability that Plaintiffs attempt to lay before this Court. And if Plaintiffs are dissatisfied by the outcome before the FLRA, they retain a right to judicial review in the courts of appeals. See 5 U.S.C. § 7123. Because “district courts do not have concurrent jurisdiction over matters within the exclusive purview of the FLRA,” this Court should reject Plaintiffs’ effort to disrupt Congress’s review scheme and to seek premature, improper review through these consolidated actions. AFGE v. Loy, 367 F.3d 932, 935 (D.C. Cir. 2004) (quoting Karahalios, 489 U.S. at 533). 17 Case 1:18-cv-01261-KBJ Document 40 Filed 07/16/18 Page 34 of 83 1. The Statute establishes a scheme of exclusive review by the FLRA, subject to judicial review in the courts of appeals. As to the first Thunder Basin factor, Congress had made an exclusive scheme of review “fairly discernible” in the Statute. Enforcement of union and agency duties under the Statute is left, in the first instance, to the FLRA, subject to judicial review in the courts of appeals. Karahalios, 489 U.S. at 536-37. To that end, Congress directed that the FLRA “shall provide leadership in establishing policies and guidance relative to matters under [the Statute].” 5 U.S.C. § 7105(a)(1). Among other duties, the FLRA shall “resolve[] issues relating to the duty to bargain in good faith under section 7117(c),” and “conduct hearings and resolve complaints of unfair labor practice under section 7118.” Id. § 7105(a)(2)(E), (G). Thus, if a union alleges that an agency is improperly refusing to bargain on a particular matter—what Plaintiffs here allege will happen under the Orders—it “may appeal the allegation to the [FLRA],” which “shall expedite proceedings” and issue a written decision “at the earliest practicable date.” Id. § 7117(c)(1), (6). Similarly, if an agency is charged with an unfair labor practice, the FLRA’s General Counsel investigates and, if warranted, files a complaint against the agency. Following a hearing, the FLRA (or its designee) issues a written decision, which may include an order to the agency to cease and desist from the alleged unfair labor practice or to renegotiate a CBA, with retroactive effect, in accordance with the FLRA’s directive. Id. § 7118(a)(1), (2), (6)-(7). A union may also invoke the arbitration process to pursue an unfair labor practice charge with the FLRA. See 5 U.S.C. § 7122(a); U.S. Dep’t of Navy v. FLRA, 665 F.3d 1339, 1344 (D.C. Cir. 2012). With two limited exceptions, “[a]ny person aggrieved by any final order of the [FLRA]” may seek judicial review of the order in the Court of Appeals for the D.C. Circuit or in the court 18 Case 1:18-cv-01261-KBJ Document 40 Filed 07/16/18 Page 35 of 83 of appeals where the aggrieved person resides. Id. § 7123(a).4 The Statute makes no provision for any type of judicial review in federal district court. Indeed, the only two mentions of federal district courts in the Statute are to further the FLRA’s ability to resolve disputes. See id. § 7123 (allowing the FLRA to petition a district court for “appropriate temporary relief” after charging an unfair labor practice); id. § 7132 (providing that a district court may issue an order requiring compliance with a subpoena issued by the FLRA, the General Counsel, or the Panel). The FLRA’s function is “to develop specialized expertise in its field of labor relations and to use that expertise to give content to the principles and goals set forth in the Act.” BATF, 464 U.S. at 97. Congress created the FLRA “to enforce the duties imposed on agencies and unions by [the Statute]” and it provided such an “administrative remedy” in lieu of “a parallel remedy in a federal district court.” Karahalios, 489 U.S. at 532–33. As a general matter, “when Congress creates procedures designed to permit agency expertise to be brought to bear on particular problems,” as it has done here, “those procedures are to be exclusive.” Free Enter. Fund v. Pub. Co. Accounting Oversight Bd., 561 U.S. 477, 489 (2010) (citation omitted). Thus, when a matter is within the FLRA’s authority to decide, as are Plaintiffs’ claims here, “[judicial r]eview may be had, but it must be in the court of appeals and it may occur only after the claim has been presented to and finally decided by the FLRA.” Loy, 367 F.3d at 936. For this reason, the D.C. Circuit has previously rejected a union plaintiff’s attempt to file suit directly in district court when the union could obtain judicial review as Congress set forth in the Statute. As the D.C. Circuit in that case held, although § 7123 of the Statute prevents a union from suing in 4 The Statute provides unions with a right to judicial review in a court of appeals when an FLRA order reviewing an arbitral award “involves an unfair labor practice.” 5 U.S.C. § 7123(a)(1). The D.C. Circuit has accordingly held that a court of appeals “has jurisdiction to review a final order of the [FLRA] when an unfair labor practice under 5 U.S.C. § 7116 is either an explicit ground for, or necessarily implicated by, the [FLRA]’s decision.” NTEU v. FLRA, 745 F.3d 1219, 1222 (D.C. Cir. 2014) (quotation and alteration omitted). 19 Case 1:18-cv-01261-KBJ Document 40 Filed 07/16/18 Page 36 of 83 district court to challenge a bargaining unit determination, the union “remains free to obtain indirect judicial review by refusing to bargain, drawing an unfair labor practice charge, and appealing that charge to the Authority and then to a court of appeals.” Ass’n of Civilian Technicians v. FLRA, 283 F.3d 339, 342 (D.C. Cir. 2002). And the fact that the courts of appeals have been given jurisdiction only after the FLRA has undertaken a decision does not mean that Plaintiffs can circumvent the channeling scheme Congress designed by pursuing their claims in district court rather than before the FLRA. “The district courts do not have concurrent jurisdiction over matters within the exclusive purview of the FLRA.” Loy, 367 F.3d at 935. 2. Plaintiffs’ claims are precisely the type that Congress intended be reviewed by the FLRA and, if necessary, by a court of appeals. As to the second Thunder Basin factor, Plaintiffs’ claims are just the type Congress intended to be reviewed within the Statute’s structure. A claim will “fall outside of the scope of a special statutory scheme” in only three narrow circumstances: “when (1) a finding of preclusion might foreclose all meaningful judicial review; (2) the claim is wholly collateral to the statutory review provisions; and (3) the claims are beyond the expertise of the agency.” Arch Coal, 888 F.3d at 500. None of those circumstances exists here. The first and third circumstances can be quickly dispatched. The first (no meaningful judicial review) is plainly absent, since the Statute expressly provides for judicial review of an FLRA order in a court of appeals. There can be no plausible contention that such review would not be “meaningful,” as circuit courts routinely grapple with questions of negotiability and Government-wide rules. See, e.g., IRS, 996 F.2d 1246, 1249–53 (D.C. Cir. 1993); Overseas Educ. Ass’n v. FLRA, 876 F.2d 960, 962 (D.C. Cir. 1989); HHS, 844 F.2d at 1089–90. Nor could the third circumstance (lack of agency expertise) plausibly apply because, as the Supreme Court has observed, the FLRA possesses “specialized expertise in its field of labor relations” and enjoys 20 Case 1:18-cv-01261-KBJ Document 40 Filed 07/16/18 Page 37 of 83 “considerable deference when it exercises its special function of applying the general provisions of the [Statute] to the complexities of federal labor relations.” BATF, 464 U.S. at 97 (citation omitted). That leaves only the second circumstance—claims wholly collateral to the Statute’s review scheme. But Plaintiffs’ claims fall squarely within the purview of the FLRA’s broad scope of review authority. Nearly all of Plaintiffs’ claims are premised on alleged conflicts between provisions of the Executive Orders and provisions of the Statute that, according to Plaintiffs, mandate a duty to bargain on certain topics. Such negotiability claims are precisely the type of dispute that the FLRA is empowered to consider and routinely decides. See 5 U.S.C. § 7105(a)(2)(E); see, e.g., Dep’t of the Interior, Wash., D.C. & U.S. Geological Survey, Reston, Va. v. NFFE, 52 F.L.R.A. 475, 476 (1996); NTEU v. Dep’t of the Treasury, 42 F.L.R.A. 377, 378 (1991). Indeed, the FLRA has specifically addressed negotiability disputes centering on whether bargaining proposals are consistent with an Executive Order’s provisions. See NFFE, Local 1655 v. Dep’t of Def., 49 F.L.R.A. 874, 888-90 (1994); AFGE v. Dep’t of Hous. & Urban Dev., 43 F.L.R.A. 1405, 1410 (1992). If not raised as negotiability disputes, Plaintiffs’ claims are also not collateral to the Statute because they can be brought to the FLRA (and, if necessary, to a court of appeals) as an unfair labor practice committed by an agency. Plaintiffs broadly contend that pursuant to the Orders, agencies are now bound to take negotiating positions contrary to the Statute, and under § 7116(a)(8), any such “fail[ure] or refus[al] to comply with any provision of [the Statute]” would amount to an unfair labor practice. Plaintiffs’ claims are not “collateral” to the Statute, but are well within the scope of disputes which Congress committed to a dedicated review mechanism. 21 Case 1:18-cv-01261-KBJ Document 40 Filed 07/16/18 Page 38 of 83 The constitutional claims that certain Plaintiffs seek to press fall equally within the jurisdiction of the FLRA, subject to review in the court of appeals, and they may not be brought directly in this court. That Plaintiffs have chosen not to “present [their] constitutional claims to the [FLRA] is no reason for allowing [them] to litigate those claims in the district court.” Loy, 367 F.3d at 936. “To hold otherwise would be to excuse non-compliance with the requirement that one must exhaust administrative remedies on the basis that the party failed to comply.” Id. (reversing for lack of jurisdiction district court’s consideration of union’s constitutional claims not presented to the FLRA). As the D.C. Circuit has explained, “when a constitutional claim is intertwined with a statutory one, and Congress has provided machinery for the resolution of the latter, a plaintiff must first pursue the administrative machinery.” Steadman v. Governor, U.S. Soldiers’ & Airmen’s Home, 918 F.2d 963, 967 (D.C. Cir. 1990). At bottom, Plaintiffs challenge the validity of Executive Order provisions removing certain subjects from the collective bargaining process and affecting the manner of bargaining between agencies and unions. The Statute channels such disputes to the FLRA under its exclusive review scheme, whether the dispute is framed in constitutional terms or otherwise. See Elgin v. Dep’t of the Treasury, 567 U.S. 1, 12–13 (2012). Even if the FLRA were incapable of addressing constitutional questions (which is not the case), district court jurisdiction would still be precluded so long as such “constitutional questions” “can be meaningfully addressed in the Court of Appeals.” Thunder Basin, 510 U.S. at 215. Because the Statute “does not foreclose all judicial review of [Plaintiffs’] constitutional claims, but merely directs that judicial review shall occur in the” courts of appeals, this Court lacks jurisdiction to hear them. Elgin, 567 U.S. at 10. B. Prudential Ripeness Concerns Counsel Against Hearing Plaintiffs’ Claims. Even if review of Plaintiffs’ claims were not statutorily precluded, the Court should decline to consider these claims because they are not prudentially ripe. The prudential ripeness doctrine 22 Case 1:18-cv-01261-KBJ Document 40 Filed 07/16/18 Page 39 of 83 “exists to prevent the courts from wasting [their] resources by prematurely entangling [themselves] in abstract disagreements, and, where, as here, other branches of government are involved, to protect the other branches from judicial interference until their decisions are formalized.” NTEU v. United States, 101 F.3d 1423, 1431 (D.C. Cir. 1996). In determining whether a claim is prudentially ripe, courts consider two factors: (1) “the ‘fitness of the issues for judicial decision;’” and (2) “the extent to which withholding a decision will cause ‘hardship to the parties.’” Am. Petroleum Inst., 683 F.3d 382, 387 (D.C. Cir. 2012) (quoting Abbott Labs. v. Gardner, 387 U.S. 136, 149 (1967)). The “fitness” of the issues “depends on whether [the issues are] purely legal, whether consideration of the issues would benefit from a more concrete setting, and whether the agency’s action is sufficiently final.” Id. (internal quotations omitted). Assuming the issues are not fit for judicial review, “any hardship” caused by the deferral of consideration must be “immediate and significant,” given the “institutional interests” at play. Id. at 389. Section 4 of the Official Time Order and each challenged provision of the Removal Procedures Order present issues that are not currently fit for judicial review because these sections contemplate future action by OPM and each affected agency. When a challenged executive order is “merely a precursor to the later formulation of actual regulations,” the “policies that underscore the ripeness doctrine militate strongly against granting discretionary (declaratory) relief,” and that is true here. El Dia v. Hernandez Colon, 963 F.2d 488, 496 (1st Cir. 1992). Section 4 of the Official Time Order became effective 45 days after the date the Order was issued, i.e., on July 9, 2018. During the 45-day period, Section 4(c)(i) instructs OPM to “examine whether existing regulations are consistent with the rules set forth in this section.” If OPM finds that existing regulation are not consistent, it must “propose for notice and public comment, as soon as practicable, appropriate regulations to clarify and assist agencies in implementing these rules, 23 Case 1:18-cv-01261-KBJ Document 40 Filed 07/16/18 Page 40 of 83 consistent with applicable law.” Although the requirements of Section 4 went into effect on July 9, 2018, only when OPM has finalized its regulations to “administer[] th[ose] requirements of this section” might there be a sufficiently final agency action fit for judicial review. Official Time Order, Sec. 4(c)(i). Similarly, Section 7 of the Removal Procedures Order directs OPM to examine existing regulations and, “as soon as practicable,” to “propose for notice and public comment appropriate regulations to effectuate” Sections 2 through 6 of the Order. Simultaneously, agency heads are ordered to revise their policies in areas where new OPM regulations are not required. Removal Procedures Order, Sec. (7)(b)(i). Section 7 further instructs agency heads, after OPM issues final regulations, to “further revise” their “discipline and unacceptable performance policies” to “conform” to any new regulations. Id. Plaintiffs’ challenges to the Removal Procedures Order itself are premature given the OPM and agency administrative action that has yet to occur. See El Dia, 963 F.2d at 496. Judicial review is inappropriate at least until these administrative processes are complete. In proposing new regulations for comment, OPM is directed to clarify the rules, specifically considering the interplay of the Orders with “applicable law.” See Official Time Order, Section 4(c). When it does so, Plaintiffs will have an opportunity to air their concerns about the Orders directly to OPM through the notice-and-comment process, and OPM will have an opportunity to “apply its expertise,” and “solidify or simplify the factual context” before any determination of the legality of the provisions at issue. See Am. Petroleum Inst., 683 F.3d at 387. And, even if Plaintiffs fail to “persuade the agency, permitting the administrative process to reach its end” allows “for more intelligent resolution of any remaining claims and avoid[s] inefficient and unnecessary piecemeal review.” Id.; see also Campaign for Accountability v. DOJ, 278 F. Supp. 3d 303, 318– 24 Case 1:18-cv-01261-KBJ Document 40 Filed 07/16/18 Page 41 of 83 19 (D.D.C. 2017) (A prudential ripeness defect “occurs, generally speaking, when the alleged wrong is insufficiently concrete—as a factual matter—to be capable of legal evaluation. . . .”). That “the broad legal theory advanced” by Plaintiffs may not significantly change over time does not prevent the application of the prudential ripeness doctrine. See NTEU, 101 F.3d at 1431. The prudential ripeness doctrine exists for courts to avoid “‘entangling [them]selves in abstract disagreements over administrative policy’” regardless of whether the legal argument underlying Plaintiffs’ claim will evolve. See Delta Air Lines, Inc. v. Exp.-Imp. Bank of U.S., 85 F. Supp. 3d 250, 270 (D.D.C. 2015) (quoting Nat’l Ass’n of Regulatory Util. Comm’rs v. U.S. Dep’t of Energy, 851 F.2d 1424, 1428 (D.C. Cir. 1988)). Section 3 of the Official Time Order and the Collective Bargaining Order also present issues that are unfit for judicial review at this time. Both Section 3 of the Official Time Order and the Collective Bargaining Order set goals for the outcome of agencies’ negotiations and advise agencies on policy considerations while bargaining with individual unions. While the Orders intend for agencies to strive to meet these aspirational objectives, their provisions leave room for negotiation, in at least one case contemplating that the agency may end up before the Panel at impasse. See Official Time Order, Sec. 3(b)(ii). The Orders moreover expressly direct agencies to fulfill their statutory obligation to bargain in good faith while striving to meet the Orders’ directives. See Collective Bargaining Order, Secs. 5(a)-(b), (d), 7(b); Official Time Order, Sec. 3(a). As the factual outcome of these negotiations is sure to vary by agency and bargaining unit, disputes arising from these provisions should be channeled through the FLRA and, if necessary, decided upon a complete factual record before the D.C. Circuit. In their current abstract form, the issues are unripe. 25 Case 1:18-cv-01261-KBJ Document 40 Filed 07/16/18 Page 42 of 83 Further, given the “institutional interests” at play, Plaintiffs have not identified sufficiently “immediate and significant” hardships that would be caused by deferring consideration of their claims and thus justify review at this point. See Am. Petroleum Inst., 683 F.3d at 389 (citation omitted). Though many provisions of the Orders have immediate effect in the absence of a current CBA with conflicting terms, OPM and other agencies must be given an opportunity to implement the terms of the Orders consistent with their expertise and applicable law and in the course of negotiations. That Congress has created avenues for review of both administrative rulemaking proceedings and federal labor disputes only confirms that judicial review is premature. See NTEU, 101 F.3d at 1432. Until such time as OPM issues regulations implementing these challenged sections of the Orders or agency-specific disputes have been channeled through the FLRA (and the Panel, if necessary), Plaintiffs claims are prudentially unripe. II. PLAINTIFFS’ CLAIMS LACK MERIT. Even if this Court concludes that it has jurisdiction to hear Plaintiffs’ claims, it should dismiss them on the merits and grant summary judgment to Defendants. A. Congress Made Clear That Certain Subjects Could be Made Exempt from Collective Bargaining Negotiations by the Issuance of Government-Wide Rules. Plaintiffs’ claims that the challenged provisions are ultra vires executive action contrary to the Statute are baseless. Many provisions of the challenged Orders are properly considered “government-wide rules or regulations” that permissibly remove subjects from the scope of collective bargaining, as contemplated by Congress. 5 U.S.C. § 7117(a)(1). In light of the unique statutory scheme, wherein the duty to bargain includes an obligation for federal agencies to proceed to binding arbitration in cases of disagreement, Congress reserved for the Government the right to create “government-wide rules or regulations,” thereby exempting matters from that duty. See IRS, 996 F.2d at 1247; see also IRS v. FLRA, 494 U.S. 922, 935 n.3 (1990) (Brennan, J., 26 Case 1:18-cv-01261-KBJ Document 40 Filed 07/16/18 Page 43 of 83 dissenting) (“The function of § 7117(a)(1) appears to be to insulate from the bargaining process union efforts to change anything that has already been settled by those with authority over the agency — e. g., Congress, the President, or OMB.” (emphasis added)). In doing so, Congress provided the Executive with the discretion to “pull a subject out of the bargaining process by issuing a government-wide rule that creates a regime inconsistent with bargaining.” IRS, 996 F.2d at 1250; see also IRS, 494 U.S. at 938 (Stevens, J. dissenting) (The duty to bargain “does not extend to matters which are the subject of such a regulation.”); Dep’t of Def., Def. Contract Audit Agency Cent. Region & AFGE, Local 3529, 37 F.L.R.A. 1218, 1228 (1990) (“[U]nder section 7117 of the Statute, Government-wide [rules and] regulations bar the negotiation of, and agreement on, union proposals that conflict with them.”). Rather than creating conflict with the Statute, as Plaintiffs suggest, these portions of the challenged Orders constitute a lawful exercise of the authority delegated to the Executive by Congress to promote “governmental efficiency and merit objectives of the statute.” OPM v. FLRA, 864 F.2d 165, 169 (D.C. Cir. 1988). They also constitute a lawful exercise of his authority, expressly recognized by Congress, “to prescribe regulations for the conduct of employees in the executive branch.” 5 U.S.C. § 7301. Under § 7117(a)(1), these portions of the challenged Orders are “Government-wide rules or regulations” that remove certain subjects from the collective bargaining process.5 Congress intended that the term “Government-wide rules or regulations” be construed broadly to include “official declarations of policy” that are “binding on officials and agencies to which they apply,” as well as rules and regulations promulgated after notice and 5 Although Defendants here maintain that the challenged provisions are properly characterized as Government-wide rules, provisions of an Executive Order may also be considered “Federal law” within the meaning of § 7117(a)(1). See, e.g., NFFE, Local 1655 v. Dep’t of Def., 49 F.L.R.A. at 888–90 (“The Authority has determined that Executive Order 12,564 constitutes a ‘“law,’” within the meaning of section 7117(a)(1) of the Statute.”); see also Meyer v. Bush, 981 F.2d 1288, 1302 n. 6 (D.C. Cir. 1993) (“An executive order is, for many purposes, a form of presidential ‘law.’”). 27 Case 1:18-cv-01261-KBJ Document 40 Filed 07/16/18 Page 44 of 83 comment. HHS, 844 F.2d at 1099 (quoting H. R. Conf. Rep. No. 95-1717 at 158 (1978), reprinted in 1978 U.S.C.C.A.N. 2860, 2892). Section 6 of the Collective Bargaining Order, Sections 4(a) and 4(b) of the Official Time Order, and Section 4 of the Removal Procedures Order easily meet this standard. By their terms, each of these provisions is binding across the Federal Government and apply to all agencies subject to the Statute. See, e.g., Collective Bargaining Order, Sec. 6 (referring to heads of agencies “subject to the provisions of chapter 71 of title 5”); Official Time Order, Sec. 2(a) (defining “agency” as defined in 5 U.S.C. § 7103(a)(3)); Removal Procedures Order, Sec. 1 (defining “agencies” as defined in 5 U.S.C. § 105). Each challenged provision is also “generally applicable throughout the federal government.” IRS, 996 F.2d at 1250 n. 5. Most importantly, and as explained in more detail below, each of these provisions lawfully removes something from the scope of collective bargaining. See infra Part II.B. To be sure, the Executive may not use its statutory authority to issue Government-wide rules or regulations to create additional rights not present in the Statute. See OPM v. FLRA, 864 F.2d at 169-71. The Executive may, however, “direct[] the exercise” of its authority in a “specific way, so that particular subjects or appropriate arrangements are identified as inappropriate topics of bargaining.” IRS, 996 F.2d at 1251 (quoting OPM, 864 F.2d at 171). As explained below, the challenged provisions create no conflict with the statutory scheme. Instead, they “restrict” the discretion of agencies to exercise “rights already granted.” IRS, 996 F.2d at 1251. B. None of the Challenged Provisions of the Orders Conflicts With the Statute. Plaintiffs’ claims that individual provisions of the Orders are in “conflict” with the Statute are all meritless. Repeatedly, Plaintiffs either misread the provision at issue, misconstrue the Statute, or refuse to acknowledge the effect of a Government-wide rule. These claims of ultra vires Executive action should be dismissed and judgment on those claims granted to Defendants. 28 Case 1:18-cv-01261-KBJ Document 40 Filed 07/16/18 Page 45 of 83 1. The Collective Bargaining Order is not in conflict with the Statute. Plaintiffs challenge four sections of the Collective Bargaining Order. Section 4(a) encourages, but does not require, agencies to meet specified timetables in their collective bargaining negotiations. Section 5(c), meanwhile, merely restates the Statute’s parameters for when an unfair labor practice may be charged. Although Section 5(e) provides that agencies should request the exchange of written proposals during negotiations, nothing in that provision allows agencies to unilaterally impose such an exchange as an exclusive requirement, as Plaintiffs allege. Finally, Section 6 directs agencies not to negotiate matters that Congress reserved to them as management rights, wholly consistent with the Statue’s express allowance that such matters may be negotiated only “at the election of the agency.” None of these challenged provisions conflicts with the Statute. a. Section 5(a)’s “ordinarily reasonable” time periods for negotiating ground rules and term CBAs do not conflict with the Statute. Section 5(a) of the Collective Bargaining Order provides agencies with direction on what time periods “should ordinarily be considered reasonable” for negotiating ground rules (up to six weeks) and a term CBA (between four and six months). Plaintiffs maintain (NFFE Mot. 33, ECF No. 26) that this guidance to agencies deprives the FLRA of its authority to decide whether the parties are negotiating in good faith through an unfair labor practice charge. But nothing in Section 5(a) precludes a union from bringing an unfair labor practice charge to the FLRA alleging that an agency has prematurely terminated negotiations. The FLRA’s authority has not been diminished. Plaintiffs also misread Section 5(a) when they state that it requires agencies to submit to mediation or the Panel any bargaining over ground rules that exceeds six weeks or any term CBA negotiation that exceeds four to six months. AFSCME Mot. 24, ECF No. 27. The final sentence 29 Case 1:18-cv-01261-KBJ Document 40 Filed 07/16/18 Page 46 of 83 of Section 5(a) applies only to disputes over ground rules that have not been resolved “after a reasonable period” and does not expressly refer to or incorporate the six-week period previously noted. Also contrary to Plaintiffs’ view, there is no mention of advancing disputes over substantive CBA negotiations in the same manner as disputes over ground rules. Moreover, the reference to a “reasonable period” is deliberately flexible: while agencies have been notified that a six-week period “should ordinarily be considered reasonable,” nothing in Section 5(a) precludes them from negotiating for a longer period before advancing to mediation or the Panel. Plaintiffs’ claim (AFSCME Mot. 24) that Section 5(a) “sets uniform rules for all agency timelines” and ignores the “specific context” of any particular negotiating session is belied by the text of the provision, which designates the time periods as “objectives,” rather than hard-and-fast rules, and stresses agencies’ “obligation to bargain in good faith.” Plaintiffs’ reading of Section 5(a) would require agencies and unions to protract their disputes for an unreasonable period, which is hardly a viable solution. Finally, Plaintiffs’ invocation of §§ 7114(b)(1) and (b)(3) supports the rationale underlying Section 5(a). While §§ 7114(b)(1) and (b)(3) direct unions and agencies to meet “as frequently as may be necessary,” nothing in Section 5(a) speaks to the frequency of negotiation meetings. Section 5(a) instead speaks to the overall duration of negotiations over a period, regardless of their frequency within that period. More importantly, sections 7114(b)(1) and (b)(3) specifically direct the parties “to avoid unnecessary delays,” which is the same policy goal that animates Section 5(a). Collective Bargaining Order, Sec. 5(a) (directing agencies to “minimize delay” and “set reasonable time limits for good-faith negotiations”). The Statute establishes no minimum time period during which negotiations, whether productive or not, must continue. 30 Case 1:18-cv-01261-KBJ Document 40 Filed 07/16/18 Page 47 of 83 b. Section 5(c) provides guidance to agencies that is consistent with 5 U.S.C. § 7114(b). Section 5(c)—challenged by AFSCME—instructs agencies to consider filing an unfair labor practice complaint when confronted with a union negotiating in bad faith. It further instructs agencies to consider proposing new contract terms or agency policies if the union does not offer counter proposals in a timely manner. In essence, Section 5(c) restates as a policy instruction to agencies what Congress provided in 5 U.S.C. § 7114(b). It is therefore consistent with the Statute. In challenging Section 5(c), AFSCME advances an interpretation wholly untethered to that provision’s text. AFSCME speculates that agencies will “presume bad faith on the part of a union” and contends that Section 5(c) mandates them to “engage in bad faith bargaining.” AFSCME Mot. 23. But Section 5(c) merely restates as a policy instruction to agencies what Congress provided in §§ 7114(b) and 7118—that if the union violates its duty to negotiate in good faith, agencies should consider filing an unfair labor practice complaint or consider proposing new contract terms or policy changes. Nothing in Section 5(c) requires agencies to take these actions. Indeed, there is nothing contemplated by Section 5(c) that is not already permitted by the Statute, and AFSCME has not contended otherwise. Plaintiffs’ argument that Section 5(c) will mandate bad-faith bargaining is further undermined when considered against Section 5(d), which provides that agencies shall continue to “negotiate in good faith” even after filing an unfair labor practice complaint. At bottom, Plaintiffs’ speculation about possible developments in hypothetical future negotiations is not based on any requirement of Section 5(c), and simply underscores why such disputes should be channeled through the FLRA in the first instance. See supra Part I.A. 31 Case 1:18-cv-01261-KBJ Document 40 Filed 07/16/18 Page 48 of 83 c. Section 5(e) is not in conflict with any provision of the Statute. Section 5(e) reflects the President’s policy conclusion that written proposals “facilitate resolution of negotiability issues and assess the likely effect of specific proposals on agency operations and management rights.” It therefore directs agencies to “request” of unions that the parties exchange written proposals during negotiations. Plaintiffs’ challenge to Section 5(c) rests on a misunderstanding of its terms. Nothing in Section 5(e) authorizes agencies to unilaterally impose the exchange of written proposals as the exclusive method of negotiation (NFFE Mot. 33) or requires agencies “to remove all bargaining approaches other than the exchange of written proposals.” AFSCME Mot. 24. Instead, it directs agencies, at the soonest available opportunity, to take steps to eliminate any requirement that an agency use a technique other than exchange of written proposals. Thus, if currently effective requirements prevent an agency from taking the approach that the President has directed, the agency is instructed to take steps to change that requirement. Plaintiffs cannot seek to invalidate Section 5(e) by advancing an interpretation at odds with its text. Finally, the suggestion (AFSCME Mot. 24–25) that Section 5(e) silently bans agencies from meeting with unions is baseless. There is nothing in the Collective Bargaining Order that precludes agency and union representatives from meeting face-to-face, and Plaintiffs point to none. d. Section 6 is consistent with Congress’s express determination that certain matters may be negotiated only “[a]t the election of the agency.” Section 6 is a Government-wide rule that prohibits agencies from negotiating “over the substance of the subjects” set forth in 5 U.S.C. § 7106(b)(1). As Plaintiffs rightly concede, section 7106(b)(1) “permits an agency to refrain from negotiating its statutory ‘management rights.’” AFSCME Mot. 25; see, e.g., Nat’l Ass’n of Gov’t Employees, Local R5-136 v. FLRA, 363 F.3d 468, 471 (D.C. Cir. 2004) (“As to these decisions [concerning subjects set forth in § 7106(b)(1)], 32 Case 1:18-cv-01261-KBJ Document 40 Filed 07/16/18 Page 49 of 83 the agency is permitted but not required to negotiate with the labor organization.” (quoting AFGE, AFL-CIO, Local 2441 v. FLRA, 864 F.2d 178, 180 (D.C. Cir. 1988)) (emphasis added)). Section 6 merely restates agencies’ statutorily-conferred right to “refrain from negotiating,” and it is therefore entirely consistent with Congress’s determination that the enumerated subjects may only be negotiated “at the election of the agency.” 5 U.S.C. § 7106(b)(1). This language—which Plaintiffs fail to acknowledge—is fatal to Plaintiffs’ argument. The D.C. Circuit took no issue with a prior Executive Order that mandated agencies to negotiate over the subjects set forth in § 7106(b)(1). See Nat’l Ass’n of Gov’t Employees, Inc. v. FLRA, 179 F.3d 946, 951 (D.C. Cir. 1999) (concluding that Executive Order No. 12,871 “reaffirm[s] the President’s authority to insure his control and supervision over the Executive Branch” by issuing an order to his subordinates) (quotation and alterations omitted)). By the same logic, given Congress’s reservation of the election to agencies, an Executive Order that prohibits agencies from such negotiation is an equally valid exercise of Presidential authority. 2. The Official Time Order is not in conflict with the Statute. The challenged provisions of the Official Time Order—Sections 3 and 4—broadly aim to promote “an effective and efficient government,” Official Time Order, Sec. 1, by setting forth goals for bargaining under 5 U.S.C. § 7131(d) and prescribing rules of conduct that remove certain subjects from the scope of official-time negotiations. Nothing in these provisions conflicts with the Statute.6 6 Though Plaintiffs also attempt to challenge definitions of terms contained in the Executive Order (see AFGE Mot. 14–15), the use of such terms does not impose an injury on Plaintiffs sufficient to establish Article III standing. The use of these terms is limited to the “purposes of this order,” and the terms have no independent effect. See Official Time Order, Sec. 2. Section 2(i), which defines “taxpayer-funded union time,” specifically incorporates the definition of official time contained in the Statute and adds no other criteria to the statutory definition. And, assuming any challenge to a definition contained in an executive order could confer standing on a plaintiff, Plaintiffs’ challenge to the definition of “union time rate,” Section 2(j), is coextensive with their challenge to Section 3, which sets an aspirational union time rate that agencies should strive to meet in negotiations. 33 Case 1:18-cv-01261-KBJ Document 40 Filed 07/16/18 Page 50 of 83 a. Section 3 of the Official Time Order does not conflict with the Statute. Section 3 is consistent with both the language of and the intent underlying 5 U.S.C. § 7131(d). In crafting the official time portion of the Statute, Congress specifically provided that employees may spend unlimited official time on “the negotiation of a collective bargaining agreement” and, when the FLRA allows, on “any phase of proceedings before the [FLRA].” 5 U.S.C. §§ 7131(a), (c). Congress left the decision to the unions and the agencies, however, as to how much official time “shall be granted” for other activities, provided only that the activities are covered under the Statute and that the agreement is “reasonable, necessary, and in the public interest.” Id. § 7131(d). Section 3 expressly preserves the statutory obligation to grant official time under §§ 7131(a) and (c). See Official Time Order, Sec. 3(c) (“Nothing in this section shall be construed to prohibit any agency from authorizing taxpayer-funded union time as required under sections 7131(a) and 7131(c) of title 5, United States Code.”). Instead, Section 3 of the Official Time Order merely provides guidance to agencies as to how they should approach negotiations under § 7131(d), just as a union president may provide a directive to his or her officers in preparing for collective bargaining negotiations. Plaintiffs correctly point out that § 7131(d) contemplates bargaining over the amount of negotiated official time. And, despite Plaintiffs’ arguments to the contrary, so does Section 3. Section 3 provides guidance on what amount of official time should “ordinarily be considered reasonable” under § 7131(d), specifically contemplating that agencies will need to consider some additional factors in making this determination, such as “the size of the bargaining unit.” Official Time Order, Sec. 3(a). Tellingly, Section 3 requires agencies to “commit the time and resources necessary to strive for a negotiated union time rate of 1 hour or less” while, at the same time, fulfilling “their obligation to bargain in good faith.” Id. (emphasis added). If the President had 34 Case 1:18-cv-01261-KBJ Document 40 Filed 07/16/18 Page 51 of 83 intended for Section 3 to give unilateral authority to agencies to determine what is reasonable under § 7131(d), he would not have included such language contemplating negotiations and reminding agencies of their statutory obligation to bargain in good faith. Nor does anything in Section 3 run afoul of Congress’ intent in drafting § 7131(d). Prior to the passage of the Statute, the system of Executive Orders governing federal labor relations limited a union to negotiating with agencies “to obtain official time for employee representatives, up to a maximum of either 40 hours, or 50% of the total time spent in bargaining.” BATF, 464 U.S. at 101; Exec. Order No. 11,616, 3 C.F.R. 861 (1966-1970). Rather than adopting an earlier Senate version of the legislation, which would have codified these restrictions on official time, Congress enacted § 7131 as presently in force, with unlimited official time for collective bargaining and some activities before the FLRA, and the joint discretion to negotiate the allowance of official time for other activities covered under the Statute. See BATF, 464 U.S. at 102; see also 5 U.S.C. § 7131(d). Indeed, Congress was presumably aware of the long history of the President’s regulating the use of official time through Executive Order, and declined to alter his authority in that regard. See, e.g. Exec. Order. 10,988, 3 C.F.R. 521, 524-25 (1959-1963); Exec. Order. No. 11,491, 3 C.F.R. 861-62, 863-74 (1966-1970); Exec. Order No. 11,616, 3 C.F.R. 861 (1966-1970). In particular, as the Supreme Court has noted, nothing in the Act “suggest[s] that Congress intended employee representatives to be treated as though they were ‘on the job’ for all purposes.” BATF, 464 U.S. at 104. Section 3 is consistent with the statutory scheme enacted by Congress; it does not limit the amount of official time available for §§ 7131(a) and (c) activities, and only guides agencies in their negotiations over other circumstances where it is appropriate to consider employee representatives “on the job.” 35 Case 1:18-cv-01261-KBJ Document 40 Filed 07/16/18 Page 52 of 83 Acknowledging that agencies may, at times, be unable to meet the goal outlined in Section 3, the Official Time Order sets forth a procedure for agencies to inform the President, through the Director of OPM, when that is the case. Official Time Order, Sec. 3(b). When necessary, an agency is required to “explain why such expenditures are reasonable, necessary, and in the public interest, describe the benefit (if any) the public will receive . . . and identify the total cost.” Id., Sec. 3(b)(i). But, in contrast to Plaintiffs’ unfounded suggestion that the agencies would be “taken to the woodshed” for making such a report (NTEU Mot. 17, ECF No. 29), the Order provides no consequence whatsoever for so reporting, reinforcing the aspirational nature of Section 3’s goal to negotiate for a reasonable amount of official time for certain activities. b. Section 4 of the Official Time Order does not conflict with the Statute. i. Sections 4(a)(i)-(v) and 4(b) are Government-wide rules that preclude agencies from bargaining over contrary proposals. Sections 4(a)(i)-(v) and Section 4(b) are all Government-wide rules as contemplated by § 7117(a)(1). Each of these provisions prescribes a uniform rule for employee conduct, applicable across the entire Government, which entirely removes contrary proposals from the scope of collective bargaining. Congress specifically allowed the type of action being challenged here in § 7117(a)(1), and § 7301 further authorizes the President to regulate the conduct of federal employees in this manner. Despite this express authority, Plaintiffs argue that, because they have historically bargained over topics covered by these provisions, the Government-wide rules are contrary to the Statute. Plaintiffs note that the text of the Statute, which states that employees “shall be granted official time” upon agreement by the agency and the union, contemplates bargaining over the amount of time to be official under § 7131(d). But the duty to bargain under § 7131(d) is limited by § 7117, providing that the Executive may remove issues from the scope of 36 Case 1:18-cv-01261-KBJ Document 40 Filed 07/16/18 Page 53 of 83 bargaining. Moreover, the parties may continue to bargain over a variety of other activities that should (or should not) be permitted as official time. Thus, Plaintiffs’ claim of “conflict” falls flat. Plaintiffs’ reading of the Statute would also render § 7117(a)(1) superfluous. That section “is cast in absolute terms—there is no obligation to bargain over any proposal inconsistent with a government-wide regulation.” IRS, 996 F.2d at 1252. That the FLRA, in cases not involving Government-wide rules, has previously found the subjects of Section 4 to be negotiable or even mandatory subjects of bargaining is no longer relevant in light of the President’s creation of Government-wide rules on these subjects. Section 7131(d) allows unions and agencies to bargain over the extent to which official time shall be granted with respect to “any . . . matter covered by [the Statute].” If the Executive’s right to issue Government-wide rules is limited to subjects unregulated by the Statute, it would have no effect at all. See, e.g., NFFE, Local 2015 and U.S. Dep’t of the Interior Nat’l Park Serv., 41 F.L.R.A. 1158, 1185–86 (1991) (concluding that a drugtesting regime established following President Reagan’s Drug-Free Workplace Executive Order appropriately overrode the agency’s duty to bargain over official time for a private drug test); NFFE, Local 15 and U.S. Dep’t of the Army, 30 F.L.R.A. 1046, 1070–71 (1988) (finding union proposals non-negotiable because they conflicted with President Reagan’s Drug-Free Workplace Executive Order). In IRS, the D.C. Circuit rejected an argument analogous to Plaintiffs’ reasoning here. There, the court considered an Office of Management and Budget Circular that imposed a Government-wide rule specifically precluding grievances related to the regulation, and that the FLRA had found contrary to the Statute. 996 F.2d at 1251–52. The FLRA read the Statute to confer a right to grieve over Government-wide regulations, reasoning that “the statutory right to grieve over a claimed violation of a rule may not be cut off by the rule itself, even if the rule, by 37 Case 1:18-cv-01261-KBJ Document 40 Filed 07/16/18 Page 54 of 83 its very terms, purports to prohibit grievances.” Id. at 1251. The D.C. Circuit overturned the FLRA’s decision, characterizing its reasoning as “circular.” Id. at 1252. The court explained that the FLRA’s reliance on the statutory right to grieve failed “to recognize that the statute itself, in Section 7117(a), provides the exemption from the duty to bargain.” Id. (emphasis added). Thus, it held, to avoid reading Section 7117(a) out of the statute, “general right[s]” contained in the statute cannot be “read to trump that explicit exception.” Id. Similarly, here, Plaintiffs’ generalized reliance on the right to bargain over certain proposed grants of official time does not supersede the Executive’s right to prescribe Government-wide rules that remove discrete issues from the scope of bargaining. See id.; see also Int’l Bhd. of Elec. Workers v. Dep’t of the Interior, 25 F.L.R.A. 201, 201–03 (1987) (finding that reduction-in-force procedures, which the union argued had historically been a mandatory subject for bargaining, were not negotiable, as they conflicted with a Government-wide regulation). ii. Section 4(a)(i) does not violate 5 U.S.C. §§ 7102(1) or 7211, or otherwise conflict with the Statute. Section 4(a)(i) provides that employees may not engage in lobbying activities—apart from in their official capacities—on paid time, not that employees are prohibited from lobbying at all. As Plaintiffs note, 5 U.S.C. § 7102(1) gives employees the right “to present the views of the labor organization to heads of agencies and other officials of the executive branch of the Government, the Congress, or other appropriate authorities.” The Statute further prohibits agencies from “interfer[ing]” with or “den[ying]” employees this right. But the Official Time Order does no such thing. Section 4(a)(i) simply provides that employees may not engage in lobbying activities while being paid by the Government on an active duty status. Thus, Plaintiffs’ reliance on the discussion in Bush v. Lucas, concerning Executive Orders issued by Presidents Taft and Roosevelt that “forbade federal employees to communicate directly with Congress without the permission of their 38 Case 1:18-cv-01261-KBJ Document 40 Filed 07/16/18 Page 55 of 83 supervisors,” has no application here. 462 U.S. 367, 382–83 (1983). Nothing in this Order limits employees’ ability to petition their representatives, so long as they do not do so while on paid time, official or otherwise, or to lobby in the course of discharging their official duties as government employees (such as in an agency Office of Legislative Affairs). Plaintiffs’ reliance on the Office of Legal Counsel’s Opinion “Application of 18 U.S.C. § 1913 to ‘Grass Roots’ Lobbying by Union Representatives” and the FLRA’s decision in U.S. Dep’t of the Army Corp of Eng’rs, Memphis Dist., Memphis, Tenn. and NFFE, 52 F.L.R.A. 920 (1997) is also misplaced. Both the OLC Opinion and the FLRA decision addressed the question of whether agreements under § 7131(d) to allow lobbying on official time are separately prohibited by 18 U.S.C. § 1913. See Application of 18 U.S.C. § 1913 to ‘Grass Roots’ Lobbying by Union Representatives, 29 Op. O.L.C. 179, 180–82 (2005); 52 F.L.R.A. 920 at 933. Neither OLC nor the FLRA, however, concluded that § 7131(d) requires bargaining over lobbying on official time in a manner inconsistent with a Government-wide rule providing to the contrary. iii. Section 4(a)(ii) does not conflict with the language of or intent underlying 5 U.S.C. § 7131. Section 4(a)(ii)(1) provides that employees generally “shall spend at least three-quarters of their paid time . . . performing agency business or attending necessary training.” Nonetheless, employees who have already “spent one-quarter of their paid time [on union business] may continue to use taxpayer-funded union time in that fiscal year” for activities covered by §§ 7131(a) and (c), which establish categories of official time that agencies must grant regardless of the outcome of collective bargaining negotiations provided for in § 7131(d). Official Time Order, Sec. 4(a)(ii)(2). This additional §§ 7131(a) and (c) time “shall count toward[s]” the amount of official time available to conduct union business under § 7131(d) in future years. Id., Sec. 4(a)(ii)(3). In effect, therefore, Section 4(a)(ii) permits individuals to spend unlimited amounts of 39 Case 1:18-cv-01261-KBJ Document 40 Filed 07/16/18 Page 56 of 83 their paid time on §§ 7131(a) and (c) activities, but individuals who choose to do so limit their ability to spend time on non-agency business, such as official time pursuant to § 7131(d) in future years. Take, for example, an individual who had already spent 25% of his paid time on union business. He may choose to take advantage of the Order’s exception and spend an additional 10% (or more) of his paid time on §§ 7131(a) and (c) activities. The following year, however, he would be permitted to spend only 15% of his paid time—rather than the 25% otherwise allotted—on nonagency business that does not fall under §§ 7131(a) or (c). But that person may spend unlimited amounts of his paid time on §§ 7131(a) and (c) activities—either in the next year or in any subsequent fiscal year. For the same reasons that Section 3 is consistent with the Statute, discussed in Part II.B.1.a, supra, Section 4(a)(ii) does not violate Congress’s intent to allow unlimited grants of official time for purposes specified in §§ 7131(a) and (c). It has no effect on certain employee representatives’ ability to spend, hypothetically, up to 100% of their time on collective bargaining or certain activities before the FLRA. Instead, it limits the amount of paid time that an agency can agree to grant to particular individuals for other non-agency business. The reason for this requirement is obvious: Federal employees have been hired to perform specific tasks based on specific qualifications and expertise. When these employees are shifted to other tasks—to perform union business, for example—other employees who may or may not have the same qualifications and expertise will have to fill in, and the employees who have been shifted to other business may fall out of practice with handling their official job duties. The President was well within his authority to conclude that this inefficient practice should cease. See 5 U.S.C. §§ 7117(a)(1), 7301. That some unions were able to previously negotiate over proposals for employees to devote 100% of 40 Case 1:18-cv-01261-KBJ Document 40 Filed 07/16/18 Page 57 of 83 their paid time to any official time activity, see, e.g., AFGE v. FLRA, 798 F.2d 1525 (D.C. Cir. 1986), has nothing to do with whether unions can now prevent the President from issuing a Government-wide rule to require federal employees to spend at least three-quarters of their paid time on official duties. Rather, that some agencies previously agreed to the unlimited funding of union activities as official time under § 7131(d) is precisely one of the inefficiencies that the Official Time Order seeks to prevent. iv. Sections 4(a)(iii), 4(a)(iv), and 4(b) do not conflict with the Statute. Section 4(a)(iii) prohibits employees from receiving the “free or discounted” use of Government property or resources for union business unless the use is “generally available” for other employees acting on behalf of “non-Federal organizations.” Section 4(a)(iv) provides that “[e]mployees may not be permitted reimbursement for expenses incurred performing non-agency business, unless required by law or regulation.” Section 4(b) provides that employees must obtain “advance written authorization from their agency” before using official time, “except where obtaining prior approval is deemed impracticable under regulations or guidance adopted” by OPM. None of these provisions limits Plaintiffs’ or their members’ ability to conduct union business outside of the office or to engage in collective bargaining. In fact, Plaintiffs fail to identify any specific statutory conflict with these provisions.7 Instead, they rely on their general argument that, because access to agency resources, travel reimbursements, and the scheduling of official time have previously been negotiated, a Government wide-rule prohibiting negotiation on these issues is unlawful. But that is precisely the point of the Executive’s authority to issue Government-wide rules or regulations: to remove certain discrete topics from the scope of bargaining where other 7 Indeed, in BATF, the Supreme Court held that the provision of expenses for travel related to collective bargaining was not mandated under § 7131(a), but instead negotiable under § 7131(d). 464 U.S. at 106–07. 41 Case 1:18-cv-01261-KBJ Document 40 Filed 07/16/18 Page 58 of 83 overarching policy prerogatives take precedence. And these provisions do not limit Plaintiffs’ ability to exercise their statutory rights; they only limit the extent to which the Government will subsidize such activities or allow it to interfere with agency work. v. Section 4(a)(v) does not force unions to violate 5 U.S.C. § 7114, or otherwise conflict with the Statute. Section 4(a)(v) prohibits employees from using official time to prepare or pursue grievances unless they are brought on the employee’s own behalf, the employee is appearing as a witness in a grievance proceeding, or an employee is challenging an adverse personnel action taken against the employee in retaliation for engaging in federally protected whistleblower activity. Nothing in Section 4(a)(v), however, prohibits unions from providing representation to federal employees by union employees working on union time, or federal union representatives from preparing grievances outside of their time on active duty, and nothing prohibits individuals from accessing grievance procedures. Indeed, Section 4(a)(v) explicitly carves out official time used by individuals preparing their own grievances. Despite these carve-outs, Plaintiffs allege that, by prohibiting union representatives from preparing grievances for individuals other than themselves on official time, the unions will be forced to violate their duty of fair representation. But unions are still able to discharge this duty adequately—they simply, at least as a general matter, may no longer be subsidized by the Government in doing so. Plaintiffs’ argument also misunderstands that duty. The duty of fair representation, rooted in 5 U.S.C. § 7114(a)(1), requires the union to “represent[] the interests of all employees in the unit it represents without discrimination and without regard to labor organization membership.” The duty “does not establish an objective standard of ‘adequate representation’ that the union must meet as a minimum, and that, once met, the union may use as a basis upon which to discriminate between members and nonmembers.” NTEU v. FLRA, 721 42 Case 1:18-cv-01261-KBJ Document 40 Filed 07/16/18 Page 59 of 83 F.2d 1402, 1406 (D.C. Cir. 1983). Instead, “a union may adopt virtually any non-arbitrary standard for providing representation of individual employees, so long as the standard adopted is applied in a nondiscriminatory manner with respect to all unit employees, i.e., members and nonmembers alike.” Id. (emphasis in original). Here, Section 4(a)(v) generally prohibits employees from taking official time to prepare grievances for individuals other than themselves, thereby precluding any possibility of discrimination between union members and nonmembers. Thus, unless Plaintiffs’ employee representatives, in their discretion, intend to use their non-duty time solely to prepare grievances for a subset of their bargaining unit (which would be a choice independent of any effect from Section 4(a)(v)), no violation of the duty of fair representation will result. Nor will Plaintiffs’ rights to be present at formal discussions with or investigations of employees that they represent be affected. See 5 U.S.C. § 7114(b). Section 4(a)(v) only applies to the conduct of employees on official time, and does not prevent Plaintiffs from exercising their rights under § 7114. vi. Section 4(c) does not conflict with the Statute because Congress gave OPM broad authority to administer civil service regulations. Section 4(c) states that the requirements of Section 4 “shall become effective 45 days from the date” of the Executive Order and that OPM “shall be responsible for administering the requirements of this section.” Section 4(c) also directs OPM to “examine whether existing regulations are consistent with the rules set forth in this section” and if not, to “propose for notice and public comment, as soon as practicable, appropriate regulations to clarify and assist agencies in implementing these rules, consistent with applicable law.” Plaintiffs challenge Section 4(c) by arguing that OPM lacks authority to issue regulations implementing the Official Time Order. Plaintiffs’ challenge to OPM’s authority to issue regulations that it has not issued is plainly not ripe for judicial review. See supra Part I.B. But in any case, OPM has ample authority to issue 43 Case 1:18-cv-01261-KBJ Document 40 Filed 07/16/18 Page 60 of 83 regulations to implement the Official Time Order. Congress granted OPM broad authority to “execut[e], administer[], and enforc[e] . . . the civil service rules and regulations of the President and the Office and the laws governing the civil service” as well as to “aid[] the President . . . in preparing such civil service rules as the President prescribes.” 5 U.S.C. § 1103(a)(5), (7). And nothing in the Statute contradicts this authority. Plaintiffs’ reliance on 5 U.S.C. § 7134, which provides that “the [FLRA], the General Counsel, the Federal Mediation and Conciliation Service, the Assistant Secretary of Labor for Labor Management Relations, and the Panel shall each prescribe rules and regulations to carry out the provisions of this chapter applicable to each of them,” is misplaced. Section 7134 only requires the enumerated entities to prescribe rules applicable to them. It does not prevent OPM, which possesses independent statutory authority, from promulgating regulations as requested by the President in his role of overseeing the conduct of the civil workforce under 5 U.S.C. § 7301. This argument, moreover, wholly ignores that Congress has authorized the President to delegate to the OPM Director the authority to issue Government-wide rules. See 5 U.S.C. § 1104(a)(1), (b)(3); id. § 301; see also IRS, 996 F.2d at 1250 (finding that an OMB Circular may constitute a Government-wide rule). 3. The Removal Procedures Order is entirely consistent with the Statute. Plaintiffs challenge parts of Sections 2, 3, and 4 of the Removal Procedures Order. These provisions aim to “hold[] Federal employees accountable for performance and conduct,” Removal Procedures Order, Sec. 1, by setting forth guiding management principles and standards for negotiating grievance procedures, removing certain disputes from negotiated grievance procedures, and setting a presumptive standard for a reasonable performance improvement period. Because there is no conflict between these provisions and the Statute, Plaintiffs’ claims lack merit. 44 Case 1:18-cv-01261-KBJ Document 40 Filed 07/16/18 Page 61 of 83 a. Sections 3 and 4(a) of the Removal Procedures Order are not in conflict with the Statute. i. Section 4(a) is a Government-wide rule that precludes agencies from including certain disputes in negotiated grievance procedures, and is also consistent with Congress’s express decision to allow any matter to be excluded from such procedures. Section 4(a) directs agencies to exclude two discrete types of disputes—performance ratings and incentive pay awards—from negotiated grievance procedures contained in CBAs. Plaintiffs contend that this provision conflicts with the Statute. The D.C. Circuit has flatly rejected this argument, explaining that “agencies are under no obligation to make any particular matters ‘grievable.’” Suzal v. Dir., U.S. Info. Agency, 32 F.3d 574, 585 (D.C. Cir. 1994); see 5 U.S.C. § 7121(a)(2) (“Any collective bargaining agreement may exclude any matter from the application of the grievance procedures which are provided for in the agreement.”). Moreover, Plaintiffs’ argument ignores the fact that Section 4(a) itself is a Government-wide rule. Accordingly, whether performance ratings and incentive pay awards should be included in grievance procedures under Section 4(a) is not a matter to which the duty to bargain extends. An agency’s refusal to negotiate over matters subject to a Government-wide rule is not “bad faith bargaining” by agencies (AFSCME Mot. 14); rather, it is the result envisioned by Congress in § 7117(a)(1). See Overseas Educ. Ass’n, Inc., 876 F.2d at 962 n.7 (“Section 7117 forecloses bargaining where it would be inconsistent with some other applicable law.”). Plaintiffs’ assertion that performance ratings and incentive pay awards are “mandatory subjects of bargaining” runs counter to what Congress provided in § 7117(a)(1) and to the express permission Congress extended in § 7121(a)(1), to exclude certain matters from negotiated grievance procedures. Other than performance ratings and incentive pay awards, the negotiability of a variety 45 Case 1:18-cv-01261-KBJ Document 40 Filed 07/16/18 Page 62 of 83 of disputes remains unaffected by Section 4(a). The claim that Section 4(a) will “preclude bargaining altogether” (NTEU Mot. 21), is both speculative and overstated. Section 4(a) is also consistent with what the D.C. Circuit has long held—that a broad range of matters may be the subject of a negotiated grievance procedure “unless the parties’ collective bargaining agreement specifically limits the scope of grievances.” U.S. Customs Serv. v. FLRA, 43 F.3d 682, 689 (D.C. Cir. 1994) (citing 5 U.S.C. § 7121(a)(2)); AFGE, Locals 225, 1504, & 3723, AFL-CIO v. FLRA, 712 F.2d 640, 649 (D.C. Cir. 1983) (holding that § 7121(a)(2) “permits the parties to negotiate limited scope agreements in the course of bargaining”). Congress did not mandate a fixed and uniform set of grievances to be included in negotiated grievance procedures, as Plaintiffs repeatedly suggest. See U.S. Customs Serv., 43 F.3d at 684 (citing § 7121(a)(2) and explaining that “[p]arties are not required to adopt a grievance procedure coextensive with the Statute’s provision”).8 The FLRA and Panel decisions on which Plaintiffs rely (NFFE Mot. 23) did not involve a Government-wide rule prohibiting agencies from subjecting certain matters to negotiated grievance procedures. Indeed, in one of those cited decisions, In re Dep’t of Def., Mont. Air Nat’l Guard, Great Falls, Mont. and Ass’n of Civilian Technicians, Case No. 00 FSIP 35, at *4 (Apr. 18, 2000), the Panel indicated that the outcome would have been different if the type of dispute at 8 See also Dep’t of Veterans Affairs v. FLRA, 9 F.3d 123, 130 (D.C. Cir. 1993) (“[T]he scope of the grievance procedures may also be negotiated.”); Suzal, 32 F.3d at 581 (noting that parties “may ‘exclude any matter’ from the negotiated procedure’s coverage”); AFGE, Locals 225, 1504, & 3723, AFL-CIO v. FLRA, 712 F.2d 640, 642 (D.C. Cir. 1983) (“A collectively bargained agreement that excludes from the grievance procedure only the five subjects specified in section 7121(c) is termed a ‘broad scope’ agreement; one that excludes other subjects as well is called a ‘limited scope’ agreement.”); Keeffe v. Library of Cong., 588 F. Supp. 778, 781 (D.D.C. 1984), aff’d in part, rev’d in part, 777 F.2d 1573 (D.C. Cir. 1985) (“While this negotiated grievance procedure often covers all potential grievances, of importance here is that the CSRA permits a union and a federal agency to exclude certain matters from the negotiated grievance procedure and to establish some alternate mechanism for resolution of those matters. § 7121(a)(2).”); Rosell v. Wood, No. CIV.A. 01-1355 RCL, 2002 WL 32396260, at *4 (D.D.C. Mar. 27, 2002), aff’d, 63 F. App’x 519 (D.C. Cir. 2003) (“[C]ollective bargaining agreements may specifically exclude certain categories of grievances from their procedures.”) 46 Case 1:18-cv-01261-KBJ Document 40 Filed 07/16/18 Page 63 of 83 issue were “required, by law, to be excluded from the scope of negotiated grievance/arbitration procedures.” When a Government-wide rule is involved, and certainly where it precludes certain matters from being grieved, as Section 4(a) does, the Statute “exempts from bargaining any proposal inconsistent with such a [rule].” IRS, 996 F.2d at 1251. Indeed, the D.C. Circuit has previously rejected the very arguments Plaintiffs raise here. To permit employees to grieve matters expressly excluded by Government-wide rule “would be to destroy the exemption from bargaining” and thereby deprive the Government of § 7117(a)(1)’s “meaningful protection,” particularly “when the government-wide [rule] specifically precludes grievances.” Id. at 1252 (explaining that § 7117(a)’s “exemption from bargaining could be largely negated if employees retain an independent right to grieve violations of a government-wide rule”). Section 4(a) is entirely consistent with Congress’s design that certain matters could be excluded from negotiated grievance procedures. Plaintiffs’ claim that the provision “plainly conflicts” with the Statute is meritless. NTEU Mot. 22. Only if Congress had mandated that these two types of disputes be included in negotiated grievance procedures would Section 4(a) create any conflict with the Statute. Because Congress did not, Plaintiffs’ claims of conflict fail.9 ii. Section 3 is not a binding directive to agencies and, even if it were, is consistent with Congress’s intent to allow certain matters to be excluded from negotiated grievance procedures. Plaintiff NTEU contends that Section 3, concerning employee removals, is invalid for essentially the same reasons as Section 4(a). NTEU Mot. 27-28 But unlike Section 4(a), Section 9 That § 7103(a)(9) defines “grievance” broadly is not dispositive, as Plaintiffs contend. Other provisions of § 7121 make clear that it is not mandatory for an agency to subject every conceivable employment matter other than those expressly excluded by Congress in § 7121(c), to a grievance procedure. For example, § 7121(d) refers to the rights of an employee affected by a prohibited personnel practice “which also falls under the coverage of the negotiated grievance procedure.” Had Congress intended to establish conclusively that all matters (other than those set forth in § 7121(c)) are subject to every agency’s negotiated grievance procedure, as NTEU contends, the quoted language from § 7121(d) would not have been necessary. 47 Case 1:18-cv-01261-KBJ Document 40 Filed 07/16/18 Page 64 of 83 3 is not a binding directive requiring agencies to exclude removals from negotiated grievance procedures. Instead, Section 3 sets a “goal” for agencies during negotiations to “endeavor” to exclude employee removals from negotiated grievance procedures. Section 3 expressly contemplates that this goal may not be met. See Removal Procedures Order, Sec. 3 (requiring agency head to explain to the President, through the OPM Director, any “fail[ure] to achieve this goal”). Clearly, the President knows how to issue a binding directive to agencies to exclude certain matters from negotiated grievance procedures, since Section 4(a) of the same Order does just that. The hortatory language of Section 3 and its express contemplation of a contrary outcome are fatal to NTEU’s argument.10 Consistent with Congress’s express allowance in § 7121(a)(2) that certain matters be excluded from negotiated grievance procedures, Section 3 does no more than give direction to agency negotiators on which particular grievances they should seek to exclude. b. Section 4(b)(iii) of the Removal Procedures Order does not conflict with the Statute or impermissibly restrict the scope of bargaining. Section 4(b)(iii) is a Government-wide rule that precludes agencies from making agreements that would require them to engage in “progressive discipline” before deciding to remove an employee. Section 4(b)(iii) reflects the President’s determination that any proposal to require progressive discipline should be “pull[ed] . . . out of the bargaining process.” IRS, 996 F.2d at 1250. Congress contemplated the exercise of such authority in § 7117(a), and there is thus no “impermissible restriction” on the scope of bargaining. NFFE Mot. 22. 10 NTEU’s argument that Congress intended, without exception, for employee removals to be included in negotiated grievance procedures misreads 5 U.S.C. § 7121(e). That section permits an employee to elect a remedy only for “[m]atters covered under sections 4303 and 7512 of this title which also fall within the coverage of the negotiated grievance procedure.” 5 U.S.C. § 7121(e)(1) (emphasis added). Plainly, if the matter does not “fall within the coverage of the negotiated grievance procedure,” there is no election for the employee to make. In any event, had Congress intended to mandate inclusion of removals in negotiated grievance procedures, it would not have done so in such roundabout fashion. 48 Case 1:18-cv-01261-KBJ Document 40 Filed 07/16/18 Page 65 of 83 Even if the decision to forego progressive discipline had not been removed from the scope of the duty to bargain under § 7117(a), no provision of the Statute mandates the use of progressive discipline prior to removing an employee. Plaintiffs’ claim of “conflict” thus fails at the outset. Congress expressly reserved as a management right the “authority of any management official of any agency . . . to . . . remove . . . or take other disciplinary action against [employees in the agency].” 5 U.S.C. § 7106(a)(2). And § 7106(b)(2) does not independently require agencies to bargain over progressive-discipline proposals to be used when agencies take any disciplinary action, as Plaintiffs contend. AFSCME Mot. 14. Rather, that argument is contradicted by D.C. Circuit precedent. See U.S. Customs Serv. v. FLRA, 854 F.2d 1414, 1420 (D.C. Cir. 1988) (noting that FLRA decisions and “the decisions of this court establish that a proposal to postpone agency action can directly interfere with management rights” and collecting cases). Plaintiff NFFE further mischaracterizes Section 4(b)(iii) as “preclud[ing] unions from negotiating ‘just cause’ standards for discipline” when the provision erects no such bar, and wrongly relies on FLRA decisions considering “just cause” proposals—as opposed to the “progressive discipline” proposals that Section 4(b)(iii) actually addresses. NFFE Mot. 24. Moreover, in the very decision on which NFFE relies, the FLRA expressly stated that a mandatory “progressive discipline[]” system would “excessively interfere with management’s right to discipline.” See NFFE, Local 1214 & U.S. Dep’t of the Army Headquarters, U.S. Army Training Ctr. & Fort Jackson, Fort Jackson, SC, 51 F.L.R.A. 1362, 1366 (1996) (citing AFGE Local 1426 and U.S. Dep’t of the Army, Fort Sheridan, IL, 45 F.L.R.A. 867, 875 (1992); AFGE Local 3732 and U.S. Dep’t of Transportation, U.S. Merch. Marine Acad., Kings Point, NY, 39 F.L.R.A. 187, 199 (1991)). As the FLRA has previously explained, “[r]estrictions on an agency’s ability to choose the specific penalty to impose in disciplinary actions directly interfere with management’s 49 Case 1:18-cv-01261-KBJ Document 40 Filed 07/16/18 Page 66 of 83 right to discipline employees under section 7106(a)(2)(A) of the Statute.” Merchant Marine Acad., 39 F.L.R.A. at 198. c. Section 4(c) of the Removal Procedures Order does not conflict with 5 U.S.C. § 4302(c)(6). Section 4(c) is a Government-wide rule that generally requires agencies to set a presumptive 30-day limit on an employee’s opportunity to demonstrate acceptable performance. It contains an exception to the general rule, however, when the agency in its discretion determines that a period longer than thirty days “is necessary to provide sufficient time to evaluate an employee’s performance.” Plaintiffs’ claim of a conflict between Section 4(c) and 5 U.S.C. § 4302(c)(6) is unfounded. Neither § 4302(c)(6) nor any other provision establishes any minimum duration that an agency must afford an employee to improve performance, let alone any minimum period in excess of thirty days. Nor did OPM do so when, pursuant to that provision, it promulgated the currently applicable regulation. See 5 C.F.R. § 432.104 (“[T]he agency shall afford the employee a reasonable opportunity to demonstrate acceptable performance, commensurate with the duties and responsibilities of the employee’s position.”).11 Plaintiffs cite no statutory provision that precludes the President from directing agencies to set a presumptive limit on improvement periods in the course of their labor negotiations. Indeed, § 7106 confirms that nothing in the Statute affects the authority of management to “layoff,” “suspend,” “remove,” “reduce in pay grade,” or “take other disciplinary action” against an employee. 5 U.S.C. § 7106(a)(2)(A). Plaintiffs’ allegation of a “conflict” thus draws no support from the text of the statute or the regulation.12 11 Section 7(a) of the Removal Procedures Order directs OPM, as it may deem necessary, to issue new proposed regulations to effectuate Section 4(c)’s presumptive 30-day limit on improvement periods. 12 Notably, a 30-day period has previously been found of sufficient duration for an employee to demonstrate acceptable performance. See Towne v. Dep’t of Air Force, No. SF-0432-11-0591-I-2, 2013 WL 5781296 (M.S.P.B. Oct. 28, 50 Case 1:18-cv-01261-KBJ Document 40 Filed 07/16/18 Page 67 of 83 Equally meritless is Plaintiffs’ contention that the duration of a performance improvement period is a “mandatory subject of negotiation.” NFFE Mot. 24. Because the President has issued a Government-wide rule directing agencies to impose a 30-day limit on improvement periods (except when the agency determines a longer period is warranted), agencies may properly refuse to negotiate on that issue. See AFGE, 798 F.2d at 1530 n.6; IRS, 996 F.2d at 1249–50. That the FLRA, in a decision not involving a Government-wide rule, has found the duration of an improvement period negotiable is therefore of no consequence to the analysis. See Patent Office Prof’l Ass’n Union & Patent & Trademark Office Dep’t of Commerce, 29 F.L.R.A. 1389, 1402– 04 (1987). Even if that decision were applicable here, the FLRA took care to note that the “length of the ‘reasonable time’ to demonstrate acceptable performance . . . is left to agency discretion.” Id. at 1403. While Section 4(c) establishes a presumptive limit on improvement periods, it also expressly contemplates that an agency may exercise such discretion to extend that period when it determines that a period longer than thirty days is necessary to evaluate the employee’s performance. Plaintiffs’ claim of a statutory conflict is baseless. d. Sections 2(a) and 2(b) do not impose binding requirements but instead announce principles of federal employee accountability, which create no conflict with statutory provisions. Section 2(a) sets forth the preferred policy that agencies “limit opportunit[ies] to demonstrate acceptable performance” to “the amount of time that provides sufficient opportunity” to do so. Section 2(b) declares that management “should not be required” to use progressive discipline, but should have the opportunity to tailor a penalty “to the facts and circumstances” of particular instances of misconduct. Plaintiff NTEU claims that Sections 2(a) and 2(b) conflict with 2013); Lee v. EPA, 115 M.S.P.R. 533 (2010), ¶ 33; Melnick v. HUD, 42 M.S.P.R. 93, 101 (1989), aff’d, 899 F.2d 1228 (Fed. Cir. 1990) (Table); Wood v. Dep’t of the Navy, 27 M.S.P.R. 659, 662–63 (1985). 51 Case 1:18-cv-01261-KBJ Document 40 Filed 07/16/18 Page 68 of 83 statutory provisions governing employee removals. NTEU Mot. 24-27. Sections 2(a) and 2(b) are not mandatory directives imposing requirements on agencies or federal employees, but instead articulate two of the President’s “principles for accountability” for the federal workforce. Plaintiffs’ claims of statutory conflict founder at the outset. In contrast to other portions of the Orders that constitute Government-wide rules, Sections 2(a) and 2(b) are merely general policy statements. Because such policy statements do not carry the force of law, they cannot “conflict” with the Statute in a manner that could form the basis of a valid claim. Cf., e.g., Sierra Club v. EPA, 873 F.3d 946, 951 (D.C. Cir. 2017) (“Policy statements are binding on neither the public nor the agency, and the agency retains the discretion and the authority to change its position . . . in any specific case.” (citation omitted)). The Order itself recognizes that these Sections do not on their own impose any requirements. Instead, the Order in Section 7 directs OPM to propose regulations, to the extent necessary, “to effectuate the principles set forth in Section 2 of this order” and directs agencies to conform their policies to these principles. By contrast, Section 7 requires OPM and agencies to effectuate the “requirements” of other Sections of the Order, including 3, 4, 5, and 6. If any judicial review might be sought for a challenge to the policies embodied in Sections 2(b) and 2(c), it is not through NTEU’s premature policy dispute with these provisions, but through a challenge to any forthcoming changes to OPM regulations or agency policies. See supra Part I.B. NTEU’s argument that these Sections undercut particular factors set forth in the MSPB’s decision in Douglas v. Veterans Administration, 5 M.S.P.R. 280, is also premature; whether an agency has properly considered any of the Douglas factors in deciding to remove an employee, or is even required to, is a question the MSPB should answer in the context of a specific removal case.13 13 The factors set forth in Douglas apply only to disciplinary actions pursuant to Chapter 75 of Title 5, and not to those taken under Chapter 43. See Lovshin v. Dep’t of the Navy, 767 F.2d 826, 835 (Fed. Cir. 1985). Thus, Plaintiffs’ claim 52 Case 1:18-cv-01261-KBJ Document 40 Filed 07/16/18 Page 69 of 83 Even if these Sections were proper subjects of judicial review, NTEU’s arguments lack merit. Although NTEU submits that Sections 2(a) and 2(b) conflict with Congress’s removal scheme, it identifies no statutory provision that generates this alleged problem. Instead, NTEU’s actual argument is not that these Sections conflict with any statute, but that they “undercut” certain aspects of the MSPB’s ruling in Douglas. NTEU Mot. 26. This claim of inconsistency with Douglas is belied by a close reading of the six specific Douglas factors which NTEU invokes. Id. Consideration of whether an offense was “frequently repeated” (Douglas factor 1) and of the employee’s “past disciplinary record” (Douglas factor 3) are not “undercut,” but are instead expressly contemplated, by the Removal Procedures Order, which expects agencies to consider “not only similar past misconduct” of the disciplined employee, but also “all past misconduct,” and furthermore makes clear that agencies should consider “an employee’s disciplinary record.” Removal Procedures Order, Sec. 2(e). MSPB’s dictate in Douglas that agencies consider the consistency of a disciplinary penalty with those imposed on other employees or set forth in any “applicable agency table of penalties” (Douglas factors 6, 7) is also not at odds with the Order. Section 2(c) simply states the truism that “disciplinary action should be calibrated to the specific facts and circumstances of each individual employee’s situation.” Removal Procedures Order, Sec. 2(c). And while Section 2(c) does call for individualized assessments of appropriate penalties, it merely states that agencies should not be bound to conform their penalties to how different employees have been treated historically, and hardly mandates that agencies vary from prior disciplinary practice, as NTEU’s argument implies. Id., Sec. 2(a) (stating that that agency officials “should not be required to use progressive discipline” (emphasis added)), Sec. 2(b) (stating that discipline handed down to one employee “does not necessarily justify similar discipline of a of a conflict with Douglas does not extend to the substantial set of disciplinary actions that an agency may take pursuant to Chapter 43. 53 Case 1:18-cv-01261-KBJ Document 40 Filed 07/16/18 Page 70 of 83 different employee at a different time” (emphases added)). Indeed, Section 2(c) explicitly advises that “agencies should consider appropriate comparators as they evaluate potential disciplinary actions.” Id., Sec. 2(c). Similarly, nothing in the Order precludes agencies from considering an employee’s rehabilitation potential (Douglas factor 10) or the deterrent value of alternative sanctions (Douglas factor 12), and NTEU points to nothing. NTEU’s contention that the Removal Procedures Order “undercuts” these Douglas factors is baseless. NTEU’s statutory conflict argument, such as it is, also ignores that the MSPB leaves to agencies the discretionary determination of which of the Douglas factors are relevant in a particular misconduct case. “The determination of which Douglas factors apply in a particular case and the weight to be given the relevant factors lies primarily within the agency’s broad discretion to determine the appropriate penalty for a particular case.” Zingg v. Dep’t of the Treasury, IRS, 388 F.3d 839, 844 (Fed. Cir. 2004) (emphasis added); Brook v. Corrado, 999 F.2d 523, 528 (Fed. Cir. 1993). NTEU’s contention that the Douglas factors are to be uniformly imposed as rigid requirements in every misconduct case does not survive close scrutiny. Finally, even assuming there is any conflict between the policy stated in Sections 2(a) and 2(b) and Douglas, NTEU offers no authority for the proposition that the President’s policy preferences must conform to MSPB precedent. NTEU’s implicit argument that the President must be enjoined merely from stating his policy differences with the MPSB is baseless. C. The Executive Orders Do Not “Cumulatively” Violate the Collective Bargaining Scheme. In addition to challenging the individual provisions detailed above, Plaintiffs contend that the Executive Orders, “taken together,” “are aimed at ending collective bargaining as we know it.” NTEU Mot. 30. This argument cannot be squared with the absence of any conflict between the challenged Executive Order provisions and the Statute. Nor can it be reconciled with Congress’s 54 Case 1:18-cv-01261-KBJ Document 40 Filed 07/16/18 Page 71 of 83 express contemplation that the scope of bargaining could be restricted by the President’s issuance of Government-wide rules. That the President’s policy choices about how best to guide the conduct of employees of the Executive branch do not align with Plaintiffs’ own policy preferences is not a proper basis for seeking judicial review. Given that Congress, in § 7117(a)(1), sought to “insulate from the bargaining process” any matter already settled by the Executive, and that Plaintiffs have identified no actual conflict with the Statute, the Executive Orders are wholly consistent with the congressional scheme. IRS v. FLRA, 494 U.S. at 935 n.3 (Brennan, J., dissenting). Contrary to Plaintiffs’ claim, there is no “cumulative” violation of collective bargaining in the abstract. Plaintiffs’ argument relies principally on NTEU v. Chertoff, 452 F.3d 839 (D.C. Cir. 2006), a case that involved a legal framework entirely distinct from the Statute. In NTEU, the D.C. Circuit considered the human resources management system (“HR system”) that the newly-formed Department of Homeland Security had created pursuant to the Homeland Security Act of 2002, 5 U.S.C. § 9701 (the “HSA”). Although the HSA did not mention the Statute, it did require the HR system to “ensure that employees may . . . bargain collectively.” 5 U.S.C. § 9701(b)(4). The D.C. Circuit held that DHS’s HR system failed to meet this requirement. NTEU, 452 F.3d at 844. But that HR system was created from whole cloth; in particular, it was different in at least four respects from the directives to agencies within the existing framework of the Statute that Plaintiffs challenge here. First, the HR system gave DHS the “right to unilaterally abrogate lawfully negotiated and executed agreements.” Id. at 844, 848 (“Taken together, these regulations subordinate all collective bargaining agreements to the prerogatives of management.”). No similar attempt has 55 Case 1:18-cv-01261-KBJ Document 40 Filed 07/16/18 Page 72 of 83 been made here, nor could it have been, given the specific review mechanism that Congress established for negotiated agreements in § 7114(c). Second, DHS’s HR system allowed bargaining only over “employee-specific terms affecting discipline, discharge and promotion,” id. at 861, thus leaving the parties with “virtually nothing to negotiate over,” id. at 860. The HR system also would have “empower[ed] DHS to take any matter off the bargaining table at any time,” whenever DHS deemed it necessary to carry out its mission. Id. at 862 (emphasis added). By contrast, the effect of the Executive Orders challenged here is to remove, ex ante, certain discrete subjects from the scope of bargaining—a result the Statute expressly permits and the D.C. Circuit has endorsed—while also urging (but not requiring) agencies to meet several specified policy objectives during negotiations. On its face, meanwhile, each of the Orders repeatedly states that its provisions are to be implemented consistent with applicable law and subject to the duty to bargain in good faith that is the hallmark of the Statute. That all of this is achieved within the framework Congress established for federal sector collective bargaining sets this case apart from Chertoff, where DHS had committed “a flagrant departure from the norms of ‘collective bargaining’ underlying [the Statute].” Id. (noting the “striking disparity” between DHS’s HR system and the framework of the Statute). Third, the DHS HR system did not “have the advantage of an impasses panel” to resolve negotiation stalemates, including potentially imposing conditions on the agency. Id. at 864. This omission differs starkly from the context of the present case, where resort to the Panel, as well as to the FLRA for additional disputes, remains expressly contemplated on the face of the Orders. Fourth, the DHS HR system sought “to conscript FLRA into reviewing a narrowly defined area of cases under an intensely deferential standard of review.” Id. at 866. Under that system, the FLRA would have been reduced to “guard[ing] against substantial adjudicative failures” by an 56 Case 1:18-cv-01261-KBJ Document 40 Filed 07/16/18 Page 73 of 83 initial reviewing board within DHS. Id. The Executive Orders here do not purport to intrude into the FLRA’s domain, let alone to do so in ways that indiscriminately favor agencies over unions. Rather, the FLRA is to retain all of its “rulemaking, adjudicatory, and policymaking powers” under the Statute. NFFE v. Dep’t of the Interior, 526 U.S. at 98. Therefore, even assuming any applicable force from the holding of NTEU v. Chertoff, which is based on the sui generis provisions of the Homeland Security Act and not the broadly applicable provisions of the Statute, the HR system struck down by the D.C. Circuit bears no resemblance to the collective bargaining regime that continues to exist under the President’s Executive Orders. DHS’s HR system, as the D.C. Circuit put it, “does not even give an illusion of collective bargaining.” NTEU, 452 F.3d at 858. By contrast, the design of the Executive Orders is to implement, subject to applicable limitations, a specific approach to the existing collective bargaining scheme established by the Statute, i.e., one in pursuit of an “effective and efficient Government.” Collective Bargaining Order, Sec. 1(b). Plaintiffs’ reliance on Chertoff cannot sustain their claim of a “cumulative” violation of collective bargaining. Plaintiffs’ “cumulative” violation theory ignores not only § 7117(a) of the Statute and the President’s authority to exempt certain subjects from bargaining, but also the Orders’ repeated directives that agencies must continue to meet their statutory duty to bargain in good faith. At bottom, Plaintiffs’ argument appears to be that they simply dislike the actions the President has taken—but that is no basis for this Court to invalidate an Executive Order that does not conflict with the Statute. 57 Case 1:18-cv-01261-KBJ Document 40 Filed 07/16/18 Page 74 of 83 D. Plaintiffs’ Claims Under the Take Care Clause and the Separation of Powers Doctrine Are Baseless. Under a variety of doctrinal frameworks, Plaintiffs also contend that the President lacked authority to issue the Executive Orders they challenge. These claims, whether asserted as a separation-of-powers claim or as a violation of the Take Care Clause, are meritless. As an initial matter, these constitutional claims are simply dressed-up allegations that mirror Plaintiffs’ contentions that the Executive Orders are ultra vires because they conflict with the Statute. But Plaintiffs cannot independently proceed with these claims merely by repackaging them in constitutional guise. See, e.g., Dalton, 511 U.S. at 471 (rejecting argument “that whenever the President acts in excess of his statutory authority, he also violates the constitutional separationof-powers doctrine”). Plaintiffs cannot transform what is otherwise a straightforward claim of statutory conflict into a constitutional one merely by alleging that the President’s failure to comply with the Statute encroaches on the Legislative Branch’s Article I powers or amounts to a violation of his constitutional responsibilities under Article II, Section 3. See id. at 474 (“The distinction between claims that an official exceeded his statutory authority, on the one hand, and claims that he acted in violation of the Constitution, on the other, is too well established to permit this sort of evisceration.”). Indeed, “if every claim alleging that the President exceeded his statutory authority were considered a constitutional claim, the exception identified in Franklin [v. Massachusetts, 505 U.S. 788 (1992)], permitting review of presidential acts for constitutionality] would be broadened beyond recognition.” Id. In any event, Plaintiffs’ arguments that the President lacks authority to issue the Executive Orders are baseless. Congress has expressly recognized the President’s authority to “prescribe regulations for the conduct of employees in the executive branch.” 5 U.S.C. § 7301. The Supreme Court had “no difficulty” concluding that this provision empowers the President to issue an 58 Case 1:18-cv-01261-KBJ Document 40 Filed 07/16/18 Page 75 of 83 Executive Order that “establish[es] a labor-management relations system for federal employment.” Nat’l Ass’n of Letter Carriers, 418 U.S. at 273 n.5; see also Ass’n for Women in Sci. v. Califano, 566 F.2d 339, 344 (D.C. Cir. 1977) (concluding that Executive Order prescribing standards of ethical conduct for federal employees “has a distinct statutory foundation [under § 7301]; indeed, it is to be accorded the force and effect of a statute”). The Executive Order that preceded enactment of the Statute governed all aspects of federal sector labor-management relations and was thus considerably more expansive than the individual provisions of the Orders at issue here. Yet the court upheld the lawfulness of this Executive Order, acknowledging the broad scope of executive authority conferred by § 7301. If § 7301 conferred sufficient basis to sustain an Executive Order that created a standalone federal labor relations regime, it certainly supports the lesser executive action taken within an existing congressional scheme at issue here.14 Far from exceeding his constitutional authority, the Orders carry out the President’s responsibilities under Article II, Section 1, which provides that the “executive Power shall be vested in a President of the United States of America.” That power “necessarily encompasses ‘general administrative control of those executing the laws,’ throughout the Executive Branch of government.” Bldg. & Const. Trades Dep’t, AFL-CIO, 295 F.3d at 32 (quoting Myers, 272 U.S. at 164). In addition, Article II, Section 3, provides that the President “shall take Care that the Laws be faithfully executed,” and the “faithful execution of the laws enacted by the Congress . . . ordinarily allows and frequently requires the President to provide guidance and supervision to his subordinates.” Bldg. & Const. Trades Dept., 295 F.3d at 32. The Executive Orders are “an exercise of the President’s supervisory authority over the Executive Branch.” Id. 14 The Removal Procedures Order is also authorized under 5 U.S.C. § 3301, inter alia, which provides that the President may “prescribe such regulations for the admission of individuals into the civil service in the executive branch as will best promote the efficiency of that service.” 59 Case 1:18-cv-01261-KBJ Document 40 Filed 07/16/18 Page 76 of 83 at 33. Plaintiffs thus have things exactly backwards in contending that the President exceeded his constitutional authority. Indeed, it is Plaintiffs’ extreme positions—such as their assertion that the President cannot even tell his subordinates how to allocate their “time and resources” to achieve particular “goal[s]” in bargaining (NTEU Mot. 27)—that would raise constitutional concerns. Finally, Plaintiffs’ attempted claim under the Take Care Clause cannot proceed in this Court because there is “a textually demonstrable constitutional commitment of the issue to a coordinate political department” and “a lack of judicially discoverable and manageable standards for resolving it.” Nixon v. United States, 506 U.S. 224, 228 (1993) (quoting Baker v. Carr, 369 U.S. 186, 217 (1962)). As the Court has explained, “[v]ery different is the duty of the President in the exercise of the power to see that the laws are faithfully executed . . . . The duty thus imposed on the President is in no just sense ministerial. It is purely executive and political.” Mississippi, 71 U.S. at 499. “An attempt on the part of the judicial department of the government to enforce the performance of such duties by the President might be justly characterized, in the language of Chief Justice Marshall, as ‘an absurd and excessive extravagance.’” Id.; see also, e.g., Lujan v. Defs. of Wildlife, 504 U.S. 555, 577 (1992) (holding that it would be improper for the courts to take over the President’s duty to “take Care that the Laws be faithfully executed”). Plaintiffs’ Take Care Clause claim must be dismissed. E. Section 4(a)(v) of the Official Time Order Does Not Infringe Plaintiffs’ First Amendment Right to Free Association. Plaintiffs allege that Section 4(a)(v) of the Official Time Order violates their First Amendment right to free association. In a series of speculations, Plaintiffs contend that the unavailability of official time for pursuing third-party grievances will reduce their ability to represent their members, which in turn will discourage employees from associating with them, all in violation of the First Amendment. AFGE Mot. 12; AFSCME Mot. 29–30. 60 Case 1:18-cv-01261-KBJ Document 40 Filed 07/16/18 Page 77 of 83 As a threshold matter, Plaintiffs have failed to make the necessary showing to succeed on a facial challenge to the constitutionality of an executive order. “A facial challenge to an executive order, like a facial challenge to legislation, ‘is, of course, the most difficult challenge to mount successfully, since the challenge must establish that no set of circumstances exists under which the Act would be valid.’” NTEU v. Bush, 891 F.2d 99, 100 (5th Cir. 1989) (quoting United States v. Salerno, 481 U.S. 739, 745 (1987); see also Vill. of Hoffman Estates v. Flipside, Hoffman Estates, Inc., 455 U.S. 489, 494 n. 5 (1982) (“A facial challenge, in this context, means a claim that the law is invalid in toto —and therefore incapable of any valid application.” (internal quotation omitted)). As discussed previously, Section 4(a)(v) is subject to future clarifying regulations by OPM, and is thus not ripe for judicial review. See supra, Part I.B. For similar reasons, Plaintiffs have not shown—and cannot show—that there are no possible circumstances under which Section 4(a)(v) would be valid. Thus, Plaintiffs’ facial challenge fails. But even setting aside the conjectural nature of this alleged constitutional harm, Section 4(a)(v) in no way prohibits unions from engaging in representational efforts, and therefore does not infringe the right of unions or their members to associate. Instead, it merely provides that union representatives shall not be paid a Government salary while pursuing grievance proceedings on behalf of third parties. Plaintiffs muster no authority for their claim that the First Amendment requires the Government to subsidize their associational efforts in this regard, and the Supreme Court has held directly to the contrary. 1. Section 4(a)(v) does not infringe Plaintiffs’ right to free association. Plaintiffs’ First Amendment claim hinges on the premise that Section 4(a)(v) works an actual infringement of their members’ right to associate. It does not. Instead, Section 4(a)(v) has no effect on union members’ ability to associate; it merely reflects the President’s determination 61 Case 1:18-cv-01261-KBJ Document 40 Filed 07/16/18 Page 78 of 83 that the cost to unions for one particular form of union business—pursuing grievances on behalf of third parties—should not be borne by the taxpayer. Section 4(a)(v) imposes no direct effect on Plaintiffs’ right to free association because it does not compel them to accept members who would compromise their message, meddle in their internal affairs, or expose them to reprisals. See Boy Scouts of America v. Dale, 530 U.S. 640 (2000); Roberts v. U.S. Jaycees, 468 U.S. 609 (1984); NAACP v. Alabama ex. Rel. Patterson, 357 U.S. 449 (1958). Nor does it impose any indirect burden on that right. “It does not ‘order’ [employees] not to associate together for the purpose of [pursuing grievances], or for any other purpose, and it does not ‘prevent’ them from associating together or burden their ability to do so in any significant manner.” Lyng v. Int’l Union, United Auto., Aerospace & Agric. Implement Workers of America, 485 U.S. 360, 366 (1988). Indeed, Plaintiffs and their members remain free to pursue third-party grievances without restriction, and the Order expressly contemplates that employees would be granted leave for that purpose. See Official Time Order, Sec. 4(e). The sole effect of Section 4(a)(v) is that the Government will not in future collective bargaining agreements agree to subsidize this particular form of union business through the provision of official time to union representatives. That decision does not rise to the level of a First Amendment infringement. See Regan v. Taxation With Representation of Wash., 461 U.S. 540, 550 (1983) (“Although TWR does not have as much money as it wants, and thus cannot exercise its freedom of speech as much as it would like, the Constitution does not confer an entitlement to such funds as may be necessary to realize all the advantages of that freedom.” (quotation omitted)). In fact, the Supreme Court has rejected the erroneous supposition underlying Plaintiffs’ entire First Amendment argument—i.e., that the Government’s decision not to pay for unions’ 62 Case 1:18-cv-01261-KBJ Document 40 Filed 07/16/18 Page 79 of 83 pursuit of third-party grievances works a constitutional deprivation. To the contrary, even assuming that employees “and their union would be much better off if [official time] were available [to pursue third-party grievances], [the unions’] right of association does not require the Government to furnish funds to maximize the exercise of that right.” Lyng, 485 U.S. at 368; see also Autor v. Pritzker, 740 F.3d 176, 182 (D.C. Cir. 2014) (“when the government appropriates public funds to establish a program, its decision not to [use program funds to] subsidize the exercise of a fundamental right does not infringe the right” (citation and alterations omitted)); John Glenn Presidential Comm., Inc. v. FEC, 822 F.2d 1097, 1100 (D.C. Cir. 1987) (same). 2. Even if the First Amendment were implicated, Section 4(a)(v) passes constitutional muster. Even if Section 4(a)(v) posed some cognizable burden on Plaintiffs’ right to free association, the regulation passes muster under the standard articulated in Williams v. IRS, 919 F.2d 745 (D.C. Cir. 1990). “It is well settled that the government may limit the exercise of a citizen’s first amendment rights where government regulations are aimed to address legitimate concerns and not designed to control or limit the exercise of first amendment freedoms.” Id. (citing Konigsberg v. State Bar of Cal., 366 U.S. 36, 50–51 (1961)). While the right to free association is considered a fundamental interest, the Government’s “decision not to subsidize the exercise of a fundamental right does not infringe [that] right, and thus is not subject to strict scrutiny.” Regan, 461 U.S. at 549. Thus, Plaintiffs’ contention that strict scrutiny analysis is required (AFSCME Mot. 29–30) is incorrect. Although Plaintiffs mischaracterize the Government’s interest as mere “administrative convenience” (AFSCME Mot. 31), Section 4(a)(v) is plainly “aimed to address legitimate concerns.” Williams, 919 F.2d at 746. In fact, the Order expressly identifies an interest in maintaining “[a]n effective and efficient government” by “keep[ing] careful track of how it spends 63 Case 1:18-cv-01261-KBJ Document 40 Filed 07/16/18 Page 80 of 83 the taxpayers’ money and eliminat[ing] unnecessary, inefficient, or unreasonable expenditures.” Official Time Order, Sec. 1. To advance this policy, the Order directs executive branch employees to “spend their duty hours performing the work of the Federal Government and serving the public.” Id.15 “The fiscal integrity of Government programs, and the Government as a whole, ‘is a legitimate concern of the State.’” Lyng 485 U.S. at 373 (quoting Ohio Bureau of Emp. Servs. v. Hodory, 431 U.S. 471, 493 (1977)). Section 4(a)(v) is also “not designed to control or limit the exercise of first amendment freedoms.” Williams, 919 F.2d at 746. As discussed above, the Order carefully preserves the right of unions to pursue third-party grievances on their own time, see Official Time Order, Sec. 4(e), and affects only whether they will be paid for that specific activity out of public funds. Were it designed to “control or limit” Plaintiffs’ free association, the Order would have sought to go further than merely discontinuing a public subsidy for this particular activity. The face of the Order further makes clear that its intent is to ensure efficient allocation of resources, and not to interfere in any way with Plaintiffs’ associational activities in pursuing grievances.16 Accordingly, even if the Court concludes that Section 4(a)(v) poses some burden on Plaintiffs’ associational rights, the provision passes constitutional muster. Plaintiffs’ First Amendment claim should be dismissed and summary judgment granted in favor of Defendants. III. THIS COURT HAS NO JURISDICTION TO GRANT PLAINTIFFS’ REQUESTED RELIEF. Though Plaintiffs name OPM and Director Pon as Defendants in these cases, Plaintiffs make no allegations of unlawful conduct by OPM. Because Plaintiffs have failed to state any 15 Plaintiffs’ repeated insistence that the Order states no government interest is thus flatly wrong. AFGE Mot. 11. Section 4(a) itself offers a justification to “ensure that Federal resources are used effectively and efficiently and in a manner consistent with . . . the public interest.” Official Time Order, Sec. 4(a). 16 Plaintiffs’ claim to strict scrutiny similarly hinges on the flawed proposition that Section 4(a)(v) works a “significant impairment of First Amendment rights.” AFSCME Mot. 30 (quoting Elrod v. Burns, 427 U.S. 347, 362 (1976)). 64 Case 1:18-cv-01261-KBJ Document 40 Filed 07/16/18 Page 81 of 83 claim for relief against OPM or Director Pon, their dismissal is appropriate. See Fed. R. Civ. P. 12(b)(6); Wood v. AFGE, 255 F. Supp. 3d 190, 199 (D.D.C. 2017) (dismissing defendant when there were “no allegations tying him” to the remaining claims). If Plaintiffs argue OPM is properly a defendant because of future conduct, such an argument only highlights the premature nature of these actions. See supra Part I.B. With only the President remaining as a Defendant, this Court lacks jurisdiction to grant Plaintiffs’ requested relief enjoining the President from enforcing his Executive Orders and declaring the President’s Orders unlawful. See NTEU, 18-cv-01348, ECF No. 21, Am. Compl. at 41–42, Relief Requested; NFFE, 18-cv-01395, ECF No.1, Compl. at 27–28, Request for Relief, AFSCME, 18-cv-01444, ECF No. 1, Compl. at 22–23, Relief Requested; AFGE, ECF No. 9, Am. Compl. at 20, Relief Requested. Courts have no jurisdiction “to enjoin the President in the performance of his official duties.” Franklin, 505 U.S. at 803 (quoting Mississippi, 71 U.S. at 501). The reasons underlying this principle are “painfully obvious.” Swan v. Clinton, 100 F.3d 973, 978 (D.C. Cir. 1996). “[T]he President . . . is a coequal branch of government, and for the President ‘to be ordered to perform particular executive . . . acts at the behest of the Judiciary,’ at best creates an unseemly appearance of constitutional tension and at worst risks a violation of the constitutional separation of powers.” Id. (quoting Franklin, 505 U.S. at 827 (Scalia, J., concurring in part and concurring in the judgment). With respect to Executive Branch officials, a “declaratory judgment is the functional equivalent of an injunction,” Comm. on the Judiciary of the U.S. House of Representatives v. Miers, 542 F.3d 909, 911 (D.C. Cir. 2008) (citing Sanchez-Espinoza v. Reagan, 770 F.2d 202, 208 n.8 (D.C. Cir. 1985)), because “it must be presumed that federal officers will adhere to the law as declared by the court,” Sanchez-Espinoza, 770 F.2d at 208 n.8. Therefore, “similar considerations 65 Case 1:18-cv-01261-KBJ Document 40 Filed 07/16/18 Page 82 of 83 regarding a court’s power to issue [injunctive] relief against the President himself apply to [a] request for a declaratory judgment.” Swan, 100 F.3d at 976 n.1; Lovitsky v. Trump, No. 17-cv00450, 2018 WL 1730278 at *5 n.5 (D.D.C. Apr. 10, 2018); see also Sanchez-Espinoza, 770 F.2d at 208 n.8 (The “equivalence of [the] effect” of injunctive and declaratory relief directed at Executive branch officials “dictates an equivalence of criteria for issuance.”). “It is incompatible with [the President’s] constitutional position that he can be compelled personally to defend his executive actions before a court.” Franklin, 505 U.S. at 827–28 (Scalia, J., concurring in part and concurring in the judgment). The President’s immunity from such judicial relief is “a functionally mandated incident of the President’s unique office, rooted in the constitutional tradition of the separation of powers and supported by our history.” Id. (quoting Nixon v. Fitzgerald, 457 U.S. 731, 749 (1982)). Following Franklin, the D.C. Circuit determined that “declaratory relief” against the President for his non-ministerial conduct “is unavailable.” Newdow v. Roberts, 603 F.3d 1002, 1012–13 (D.C. Cir. 2010). This is because “a court—whether via injunctive or declaratory relief— does not sit in judgment of a President’s executive decisions.” Id. at 1012 (emphasis added) (citing Mississippi, 71 U.S. at 499); see also Lovitsky, 2018 WL 1730278 at *7 (recognizing same). Here, Plaintiffs have limited their allegations to supposed wrongdoings on the part of the President. See e.g., AFSCME Compl. ¶¶ 94-97 (alleging that the President has failed to take care that the laws be faithfully executed). In such circumstances, this Court has no authority to direct the President in his exercise of his executive authority or to enter declaratory judgment against him. 66 Case 1:18-cv-01261-KBJ Document 40 Filed 07/16/18 Page 83 of 83 CONCLUSION For the foregoing reasons, Plaintiffs’ Motions for Summary Judgment should be denied, Defendants’ Motion for Summary Judgment should be granted, and Judgment should be entered for Defendants. Dated: July 16, 2018 Respectfully submitted, CHAD A. READLER Acting Assistant Attorney General JENNIFER D. RICKETTS Director, Federal Programs Branch CHRISTOPHER HALL Assistant Branch Director /s/ Rachael Westmoreland RACHAEL WESTMORELAND (GA Bar #539498) /s/ M. Andrew Zee M. ANDREW ZEE (CA Bar #272510) Trial Attorneys United States Department of Justice Civil Division, Federal Programs Branch 20 Massachusetts Ave., N.W. Washington, DC 20530 Tel.: (202) 514-1280 Fax: (202) 616-8460 Email: rachael.westmoreland@usdoj.gov Counsel for Defendants 67 Case 1:18-cv-01261-KBJ Document 40-1 Filed 07/16/18 Page 1 of 4 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, AFLCIO, Plaintiff, Consolidated Case No. 1:18-cv-01261KBJ v. DONALD J. TRUMP, et al., Defendants. NATIONAL FEDERATION OF FEDERAL EMPLOYEES, FD-1, IAMAW, AFL-CIO, et al., Plaintiffs, v. DONALD J. TRUMP, et al., Defendants. AMERICAN FEDERATION OF STATE, COUNTY AND MUNICIPAL EMPLOYEES, AFLCIO, et al., Plaintiffs, v. DONALD J. TRUMP, et al., Defendants. DEFENDANTS’ STATEMENT OF MATERIAL FACTS AS TO WHICH THERE IS NO GENUINE ISSUE Case 1:18-cv-01261-KBJ Document 40-1 Filed 07/16/18 Page 2 of 4 NATIONAL TREASURY EMPLOYEES UNION, Plaintiff, v. DONALD J. TRUMP, et al., Defendants. Case 1:18-cv-01261-KBJ Document 40-1 Filed 07/16/18 Page 3 of 4 As shown by Defendants’ Cross-Motion for Summary Judgment, filed on this date, the lawfulness of the challenged provisions of Executive Order No. 13,836, Executive Order No. 13,837, and Executive Order No. 13,839 is purely a matter of law. Thus there exists no genuine issue of material fact preventing summary judgment in favor of Defendants because there are no facts material to the resolution of Defendant’s motion. Out of an abundance of caution, however, pursuant to Rule 7(h)(1) of the Rules of the United States District Court for the District of Columbia, Defendants state the following material facts as to which there can be no genuine issue: 1. On May 25, 2018, the President issued Executive Order No. 13,836, Developing Efficient, Effective, and Cost-Reducing Approaches to Federal Sector Collective Bargaining. See 83 Fed. Reg. 25,329 (June 1, 2018). 2. On May 25, 2018, the President issued Executive Order No. 13,837, Ensuring Transparency, Accountability, and Efficiency in Taxpayer-Funded Union Time Use. See 83 Fed. Reg. 25,335 (June 1, 2018). 3. On May 25, 2018, the President issued Executive Order No. 13,839, Promoting Accountability and Streamlining Removal Procedures Consistent With Merit System Principles. See 83 Fed. Reg. 25,343 (June 1, 2018). 4. The Office of Personnel Management has not yet promulgated proposed rules to implement provisions of any of the three above-referenced Executive Orders. Dated: July 16, 2018 Respectfully submitted, CHAD A. READLER Acting Assistant Attorney General JENNIFER D. RICKETTS Director, Federal Programs Branch 1 Case 1:18-cv-01261-KBJ Document 40-1 Filed 07/16/18 Page 4 of 4 CHRISTOPHER HALL Assistant Branch Director /s/ Rachael Westmoreland RACHAEL WESTMORELAND (GA Bar #539498) M. ANDREW ZEE (CA Bar #272510) Trial Attorneys United States Department of Justice Civil Division, Federal Programs Branch 20 Massachusetts Ave., N.W. Washington, DC 20530 Tel.: (202) 514-1280 Fax: (202) 616-8460 Email: rachael.westmoreland@usdoj.gov Counsel for Defendants 2 Case 1:18-cv-01261-KBJ Document 40-2 Filed 07/16/18 Page 1 of 83 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, AFLCIO, Plaintiff, Consolidated Case No. 1:18-cv-01261KBJ v. DONALD J. TRUMP, et al., Defendants. NATIONAL FEDERATION OF FEDERAL EMPLOYEES, FD-1, IAMAW, AFL-CIO, et al., Plaintiffs, v. DONALD J. TRUMP, et al., Defendants. AMERICAN FEDERATION OF STATE, COUNTY AND MUNICIPAL EMPLOYEES, AFLCIO, et al., Plaintiffs, v. DONALD J. TRUMP, et al., Defendants. DEFENDANTS’ RESPONSES TO PLAINTIFFS’ STATEMENTS OF MATERIAL FACT AS TO WHICH THERE IS NO GENUINE ISSUE Case 1:18-cv-01261-KBJ Document 40-2 Filed 07/16/18 Page 2 of 83 NATIONAL TREASURY EMPLOYEES UNION, Plaintiff, v. DONALD J. TRUMP, et al., Defendants. Case 1:18-cv-01261-KBJ Document 40-2 Filed 07/16/18 Page 3 of 83 Defendants object to Plaintiffs’ Statements of Material Facts as to Which There is No Genuine Issue (“Statements”), filed in support of their Motions for Summary Judgment (ECF Nos. 26-1, 27-2, 29-3, 30-2) to the extent that they fail to identify “facts” that are “material” to their motions. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986) (explaining that a fact is “material” only if it “might affect the outcome of the suit under the governing law”). Rather than providing material facts, Plaintiffs offer, in part, general background information. Defendants further object to Plaintiffs’ Statements to the extent that the assertions do not constitute facts at all, but rather argument, speculation, characterizations, or conclusions of law, and are immaterial, or irrelevant, and accordingly are disputed. Indeed, much of Plaintiffs’ Statements constitutes characterizations of documents and actions taken by federal agencies that do not bear on the lawfulness of the challenged provisions of the Executive Orders, which is purely a matter of law. Further, Plaintiffs’ Statements contain numerous legal conclusions and speculation about potential future events rather than statements of material fact. Subject to those objections, pursuant to Rule 7(h)(1) of the Rules of the United States District Court for the District of Columbia, Defendants, by undersigned counsel, respectfully submit the following Responses to each of Plaintiffs’ Statements. 1 Case 1:18-cv-01261-KBJ Document 40-2 Filed 07/16/18 Page 4 of 83 DEFENDANTS’ RESPONSE TO PLAINTIFF NTEU’S STATEMENT 1. Plaintiff National Treasury Employees Union (NTEU) is a labor organization that represents approximately 150,000 federal government employees in 32 agencies and departments. Declaration of Kenneth Moffett, Jr. ¶ 24 (Union Exhibits (UE) 10). Response: It is undisputed that NTEU is a labor organization that represents federal employees. 2. Defendant Donald J. Trump is the President of the United States of America. On May 25, 2018, President Trump issued three executive orders: a. Executive Order 13836, Developing Efficient, Effective, and CostReducing Approaches to Federal Sector Collective Bargaining (Collective Bargaining EO); b. Executive Order 13837, Ensuring Transparency, Accountability, and Efficiency in Taxpayer-Funded Union Time Use (Official Time EO); and c. Executive Order 13839, Promoting Accountability and Streamlining Removal Procedures Consistent with Merit Systems Principles (Removal Procedures EO). See 83 Fed. Reg. 25,329 (June 1, 2018); 83 Fed. Reg. 25,335 (June 1, 2018); and 83 Fed. Reg. 25,343 (June 1, 2018). Response: Undisputed. 3. Defendant Jeff T.H. Pon is the Director of the U.S. Office of Personnel Management (OPM). See https://www.opm.gov/about-us/our-people-organization/senior-staffbios/jeff-pon/. 2 Case 1:18-cv-01261-KBJ Document 40-2 Filed 07/16/18 Page 5 of 83 Response: Undisputed. 4. The Official Time EO, section 4(c)(i), gives OPM responsibility for “administering the requirements of this section.” Response: This paragraph constitutes a characterization of the Official Time Order, rather than a statement of material fact to which a response is required. Defendants respectfully refer the Court to the text of the Official Time Order for a complete and accurate statement of its contents. 5. The Removal Procedures EO, section 7(a), provides that “Within 45 days of the date of this order, the OPM Director shall examine whether existing regulations effectuate the principles set forth in section 2 of this order and the requirements of sections 3, 4, 5, and 6 of this order. To the extent necessary or appropriate, the OPM Director shall, as soon as practicable, propose for notice and public comment appropriate regulations to effectuate the principles set forth in section 2 of this order and the requirements of sections 3, 4, 5, and 6 of this order.” Response: This paragraph constitutes a characterization of the Removal Procedures Order, rather than a statement of material fact to which a response is required. Defendants respectfully refer the Court to the text of the Removal Procedures Order for a complete and accurate statement of its contents. 6. The Collective Bargaining EO, at Section 3, creates a Labor Relations Group and installs Defendant Pon as its chair. Section 3 goes on to explain that Defendant Pon will lead the Group’s work in, among other things, “[a]nalyzing provisions of term CBAs on subjects of bargaining that have relevance to more than one agency, particularly those that may infringe on, or otherwise affect, reserved management rights”; and “[s]haring information and analysis . . . [to] encourage common approaches across agencies, as appropriate.” 3 Case 1:18-cv-01261-KBJ Document 40-2 Filed 07/16/18 Page 6 of 83 Response: This paragraph constitutes a characterization of the Collective Bargaining Order, rather than a statement of material fact to which a response is required. Defendants respectfully refer the Court to the text of the Collective Bargaining Order for a complete and accurate statement of its contents. 7. Section 8(a) of the Official Time EO provides that “[e]ach agency shall implement the requirements of this order within 45 days of the date of this order, except for subsection 4(b) [reporting requirements for official time use] . . . to the extent permitted by law and consistent with their obligations under collective bargaining agreements in force on the date of this order.” July 9, 2018 is 45 calendar days from the date of the order. Response: Undisputed that July 9, 2018 is 45 calendar days from the date of the Official Time Order. The remainder of this paragraph constitutes a characterization of the Official Time Order, rather than a statement of material fact to which a response is required. Defendants respectfully refer the Court to the text of the Official Time Order for a complete and accurate statement of its contents. 8. Section 8(b) of the Official Time EO provides that “[o]n the earliest date permitted by law, and to effectuate the terms of this order, any agency that is party to a collective bargaining agreement that has at least one provision that is inconsistent with any part of this order shall give any contractually required notice of its intent to alter the terms of such agreement and either reopen negotiations and negotiate to obtain provisions consistent with this order, or subsequently terminate such provision and implement the requirements of this order, as applicable under law.” Response: This paragraph constitutes a characterization of the Official Time Order, rather than a statement of material fact to which a response is required. Defendants respectfully 4 Case 1:18-cv-01261-KBJ Document 40-2 Filed 07/16/18 Page 7 of 83 refer the Court to the text of the Official Time Order for a complete and accurate statement of its contents. 9. Section 7(b)(i) and (ii) of the Removal Procedures EO requires that “each agency head shall[,] within 45 days of this order, revise its discipline and unacceptable performance policies to conform to the principles and requirements of this order . . . and renegotiate, as applicable, any collective bargaining agreement provisions that are inconsistent with any part of this order. . . .” Executive Order 13,839, Sec. 7(b). July 9, 2018 is 45 calendar days from the date of the order. Response: Undisputed that July 9, 2018 is 45 calendar days from the date of the Removal Procedures Order. The remainder of this paragraph constitutes a characterization of the Removal Procedures Order, rather than a statement of material fact to which a response is required. Defendants respectfully refer the Court to the text of the Removal Procedures Order for a complete and accurate statement of its contents. 10. In its June 18, 2018 Notice of Response, counsel for Defendants stated that they “do not at this time anticipate that the Government will agree to extend the July 9, 2018 implementation date set forth in Executive Orders 13,837 (Official Time EO) or 13,839 (Removal Procedures EO).” ECF No. 15 (Notice of Response). Response: This paragraph constitutes a characterization of Defendant’s Notice of Response filed with the Court, rather than a statement of material fact to which a response is required. Defendants respectfully refer the Court to the text of the Notice of Response for a complete and accurate statement of its contents. 11. NTEU represents the interests of employees by negotiating collective bargaining agreements with agency-employers, advocating for legislation that improves the working lives of 5 Case 1:18-cv-01261-KBJ Document 40-2 Filed 07/16/18 Page 8 of 83 federal employees, and engaging in general advocacy for federal employees’ rights. See https://www.nteu.org/who-we-are/what-we-do. Response: The allegations in this paragraph are immaterial to any issue before the Court because NTEU’s activities are not relevant to the lawfulness of the challenged provisions of the Executive Orders. 12. The following collective bargaining agreements to which NTEU is a party are currently open for bargaining: Federal Law Enforcement Training Centers (FLETC); U.S. Commodity Futures Trading Commission (CFTC); Social Security Administration (SSA), Office of Disability Adjudication and Review; Department of Agriculture, Food and Nutrition Service (FNCS); U.S. Securities and Exchange Commission (SEC); Department of Energy (DOE); Office of the Comptroller of the Currency (OCC); and Department of Health and Human Services (HHS). Moffett Decl. ¶ 7 (UE 6). Response: The allegations in this paragraph are immaterial to any issue before the Court because whether the referenced collective bargaining agreement are open for bargaining is not relevant to the lawfulness of the challenged provisions of the Executive Orders. 13. SSA notified NTEU, by letter dated June 5, 2018, that it intends to implement the provisions of the executive orders, effective July 9, 2018. Moffett Decl. ¶ 8 (Att. 1.A) (UE 6); see UE 22-23 (SSA Letter). Response: This paragraph constitutes a characterization of SSA’s alleged letter dated June 5, 2018, rather than a statement of material fact to which a response is required. Defendants respectfully refer the Court to the text of the June 5, 2018 letter for a complete and accurate statement of its contents. The allegations in this paragraph are further immaterial to any issue before the Court because whether SSA intends to implement certain provisions of the Executive 6 Case 1:18-cv-01261-KBJ Document 40-2 Filed 07/16/18 Page 9 of 83 Orders is not relevant to the lawfulness of the challenged provisions of the Executive Orders. 14. In its June 5 letter, SSA stated that it intends to revise 19 articles of its collective bargaining agreement with NTEU, to include Official Time (Article 8), Facilities and Services (Article 10), Performance (Article 21), Monetary Awards (Article 22), Disciplinary Actions (Article 26), Adverse Actions (Article 27), Grievance Procedure (Article 28), and Arbitration (Article 29). Moffett Decl. ¶ 8 (Att. 1.A) (UE 6); see UE 22-23 (SSA Letter). Response: This paragraph constitutes a characterization of SSA’s alleged letter dated June 5, 2018, rather than a statement of material fact to which a response is required. Defendants respectfully refer the Court to the text of the June 5, 2018 letter for a complete and accurate statement of its contents. The allegations in this paragraph are further immaterial to any issue before the Court because whether SSA intends to revise its collective bargaining agreement with NTEU is not relevant to the lawfulness of the challenged provisions of the Executive Orders. 15. HHS’s Director of Workforce Relations Division Julie Murphy stated in a June 1, 2018 email to NTEU Assistant Counsel for Negotiations Jennifer Harling that HHS had decided to submit proposed changes to the collective bargaining agreement on June 11, 2018 because, in part, of “the recently issued [Collective Bargaining] Executive Order.” Moffett Decl. ¶ 14 (Att. 1.C) (UE 7); see UE 28 (June 1 HHS email). Response: This paragraph constitutes a characterization of an email from HHS dated June 1, 2018, rather than a statement of material fact to which a response is required. Defendants respectfully refer the Court to the text of the June 1, 2018 email for a complete and accurate statement of its contents. The allegations in this paragraph are further immaterial to any issue before the Court because whether HHS intends to propose changes to its collective bargaining agreement is not relevant to the lawfulness of the challenged provisions of the Executive Orders. 7 Case 1:18-cv-01261-KBJ Document 40-2 Filed 07/16/18 Page 10 of 83 16. On June 11, 2018, HHS submitted proposals to NTEU. Moffett Decl. ¶ 16 (Att 1.D) (UE 7-8); see UE 31 (June 11 HHS email). Response: This paragraph constitutes a characterization of an email from HHS dated June 11, 2018, rather than a statement of material fact to which a response is required. Defendants respectfully refer the Court to the text of the June 11, 2018 email for a complete and accurate statement of its contents. The allegations in this paragraph are further immaterial to any issue before the Court because whether HHS submitted a proposal to NTEU is not relevant to the lawfulness of the challenged provisions of the Executive Orders. 17. In its June 11 submission, HHS proposes to eliminate, in their entirety, 13 articles of its collective bargaining agreement, to include Union Rights (Article 7), Awards (Article 27), Performance Management Appraisal System (Article 30), Actions Based on Unacceptable Performance (Article 31), Adverse Actions (Article 43), and Disciplinary Actions (Article 44). Moffett Decl. ¶ 19 (UE 8-9); see UE 32 (HHS proposals). Response: This paragraph constitutes a characterization of an email from HHS dated June 11, 2018, rather than a statement of material fact to which a response is required. Defendants respectfully refer the Court to the text of the June 11, 2018 email for a complete and accurate statement of its contents. The allegations in this paragraph are further immaterial to any issue before the Court because what HHS has proposed to NTEU is not relevant to the lawfulness of the challenged provisions of the Executive Orders. 18. HHS also proposes substantial changes to another seven articles, to include Union Access to Employer Services (Article 9), Union Representation/Official Time (Article 10), Grievance Procedures (Article 45), and Arbitration (Article 46). Moffett Decl. ¶ 20 (UE 9); see also UE 32-48 (HHS proposals). 8 Case 1:18-cv-01261-KBJ Document 40-2 Filed 07/16/18 Page 11 of 83 Response: This paragraph constitutes a characterization of an email from HHS dated June 11, 2018, rather than a statement of material fact to which a response is required. Defendants respectfully refer the Court to the text of the June 11, 2018 email for a complete and accurate statement of its contents. The allegations in this paragraph are further immaterial to any issue before the Court because what HHS has proposed to NTEU is not relevant to the lawfulness of the challenged provisions of the Executive Orders. 19. NTEU collective bargaining agreements, including current HHS Article 9, contain provisions recording the parties’ agreement that NTEU have access to agency property. Moffett Decl. ¶ 22 (UE 9). See UE 53-56 (current Article 9); see also Declaration of Stephen Keller ¶ 14 (UE 82-83). Response: The allegations in this paragraph are disputed. HHS Article 9 permits access to and use of only certain limited and specified agency property. This paragraph also constitutes a characterization of HHS Article 9, rather than a statement of material fact to which a response is required. Defendants respectfully refer the Court to the text of HHS Article 9 for a complete and accurate statement of its contents. The allegations in this paragraph are further immaterial to any issue before the Court because whether HHS Article 9 records an agreement of access to agency property is not relevant to the lawfulness of the challenged provisions of the Executive Order. 20. With respect to Article 9, HHS proposes, for the first time, to charge NTEU at the Standard Level User Charge rate for the use of private office space for official union business. Moffett Decl. ¶ 21 (UE 9). Compare UE 33-35 (proposed changes to HHS Article 9) with UE 5356 (current HHS Article 9). Response: This paragraph constitutes a characterization of HHS’s proposed changes to 9 Case 1:18-cv-01261-KBJ Document 40-2 Filed 07/16/18 Page 12 of 83 Article 9, rather than a statement of material fact to which a response is required. Defendants respectfully refer the Court to the text of HHS’s proposed changes for a complete and accurate statement of their contents. The allegations in this paragraph are further immaterial to any issue before the Court because whether HHS intends to modify Article 9 is not relevant to the lawfulness of the challenged provisions of the Executive Orders. 21. HHS further proposes, again for the first time, that NTEU “will have [only] the same access” to certain training rooms “as other groups.” Moffett Decl. ¶ 21 (UE 9). Compare UE 33-35 (proposed changes to HHS Article 9) with UE 53-56 (current HHS Article 9). Response: This paragraph constitutes a characterization of HHS’s proposed changes to Article 9, rather than a statement of material fact to which a response is required. Defendants respectfully refer the Court to the text of HHS’s proposed changes for a complete and accurate statement of their contents. The allegations in this paragraph are further immaterial to any issue before the Court because whether HHS intends to modify Article 9 is not relevant to the lawfulness of the challenged provisions of the Executive Orders. 22. HHS’s cited objective for these new limitations is its role “[a]s a responsible steward of the American Taxpayer.” Moffett Decl. ¶ 23 (UE 9-10); see UE 33 (proposed HHS Article 9). Response: This paragraph constitutes a characterization of HHS’s proposed changes to Article 9, rather than a statement of material fact to which a response is required. Defendants respectfully refer the Court to the text of HHS’s proposed changes for a complete and accurate statement of their contents. The allegations in this paragraph are further immaterial to any issue before the Court because whether HHS intends to modify Article 9 is not relevant to the lawfulness of the challenged provisions of the Executive Orders. 10 Case 1:18-cv-01261-KBJ Document 40-2 Filed 07/16/18 Page 13 of 83 23. Consistent with the labor statute, NTEU has negotiated official time provisions in its collective bargaining agreements, including provisions that discuss allotments of official time and parameters for its use. Moffett Decl. ¶ 25 (UE 10). See, e.g., id. ¶ 6.a (UE 5) (IRS Article 9, Stewards and Official Time); id. ¶ 6.b (CBP Article 30, Union Representatives and Official Time). Response: This paragraph constitutes a characterization of IRS Article 9 and CBP Article 30, rather than a statement of material fact to which a response is required. Defendants respectfully refer the Court to the text of IRS Article 9 and CBP Article 30 for a complete and accurate statement of their contents. The allegations in this paragraph are further immaterial to any issue before the Court because whether NTEU has historically negotiated official time provisions in the referenced agreements is not relevant to the lawfulness of the challenged provisions of the Executive Orders. 24. NTEU’s collective bargaining agreements generally allow for individual union representatives to spend more than 25% of paid time on official time activities, including the preparation and processing of grievances. Moffett Decl. ¶ 28 (UE 11). See, e.g., UE 57-64 (current HHS Article 10 on official time). Response: This paragraph constitutes a characterization of HHS Article 10, rather than a statement of material fact to which a response is required. Defendants respectfully refer the Court to the text of HHS Article 10 for a complete and accurate statement of its contents. The allegations in this paragraph are further immaterial to any issue before the Court because what NTEU’s agreements have generally allowed as a historical matter is not relevant to the lawfulness of the challenged provisions of the Executive Orders. 25. The current version of HHS Article 10 (Union Representatives/Official Time) explicitly provides, “[HHS] and the Union recognize that the use of official time to conduct 11 Case 1:18-cv-01261-KBJ Document 40-2 Filed 07/16/18 Page 14 of 83 authorized representational activities is in the public interest.” Moffett Decl. ¶ 27 (UE 10-11); see UE 57 (current HHS Article 10). Response: This paragraph constitutes a characterization of HHS Article 10, rather than a statement of material fact to which a response is required. Defendants respectfully refer the Court to the text of HHS Article 10 for a complete and accurate statement of its contents. The allegations in this paragraph are further immaterial to any issue before the Court because what HHS Article 10 provides is not relevant to the lawfulness of the challenged provisions of the Executive Orders. 26. Current Article 10 describes how official time will be allocated to union representatives and under what circumstances official time will be authorized. Moffett Decl. ¶ 27 (UE 10-11); see UE 57-64 (current HHS Article 10). Response: This paragraph constitutes a characterization of HHS Article 10, rather than a statement of material fact to which a response is required. Defendants respectfully refer the Court to the text of HHS Article 10 for a complete and accurate statement of its contents. The allegations in this paragraph are further immaterial to any issue before the Court because what HHS Article 10 provides is not relevant to the lawfulness of the challenged provisions of the Executive Orders. 27. These circumstances include any statutory proceeding or other forum in which NTEU is representing an employee or the Union is acting pursuant to its representational obligations. Moffett Decl. ¶ 27 (UE 10-11). See also UE 57-64 (current HHS Article 10). Response: This paragraph constitutes a characterization of HHS Article 10, rather than a statement of material fact to which a response is required. Defendants respectfully refer the Court to the text of HHS Article 10 for a complete and accurate statement of its contents. The 12 Case 1:18-cv-01261-KBJ Document 40-2 Filed 07/16/18 Page 15 of 83 allegations in this paragraph are further immaterial to any issue before the Court because what HHS Article 10 provides is not relevant to the lawfulness of the challenged provisions of the Executive Orders. 28. In its June 11 submission, HHS proposes to eliminate all official time with the exception of “reasonable” (albeit undefined) amounts of official time for: a. The negotiation of collective bargaining agreements and attendance at impasse proceedings (excluding travel and preparation time) under 5 U.S.C. 7131(a) of the federal labor statute; and b. Participation in any phase of a Federal Labor Relations Authority (FLRA) proceeding, for which official time is ordered by the FLRA under 5 U.S.C. 7131(c) of the statute. Moffett Decl. ¶ 29 (UE 11); see UE 37 (proposed HHS Article 10). Response: This paragraph constitutes a characterization of proposed HHS Article 10, rather than a statement of material fact to which a response is required. Defendants respectfully refer the Court to the text of proposed HHS Article 10 for a complete and accurate statement of its contents. The allegations in this paragraph are further immaterial to any issue before the Court because what proposed HHS Article 10 provides is not relevant to the lawfulness of the challenged provisions of the Executive Orders. 29. For the first time since NTEU has assumed the role of exclusive representative, HHS asserts that no additional official time for union representatives is “reasonable, necessary, and in the public interest.” Moffett Decl. ¶ 30 (UE 11). Response: This paragraph constitutes a characterization of proposed HHS Article 10, rather than a statement of material fact to which a response is required. Defendants respectfully 13 Case 1:18-cv-01261-KBJ Document 40-2 Filed 07/16/18 Page 16 of 83 refer the Court to the text of proposed HHS Article 10 for a complete and accurate statement of its contents. The allegations in this paragraph are further immaterial to any issue before the Court because what proposed HHS Article 10 provides is not relevant to the lawfulness of the challenged provisions of the Executive Orders. 30. Employees rely upon their unions to prepare and pursue grievances. Moffett Decl. ¶ 34 (UE 12). NTEU’s contract with HHS, for example, allows official time for employee representatives for grievance meetings and arbitration hearings. UE 60-62 (current HHS Article 10). Response: Defendants dispute that employees rely upon their unions to prepare and pursue grievances. This paragraph constitutes a characterization of HHS Article 10, rather than a statement of material fact to which a response is required. Defendants respectfully refer the Court to the text of HHS Article 10 for a complete and accurate statement of its contents. The allegations in this paragraph are further immaterial to any issue before the Court because what HHS Article 10 provides is not relevant to the lawfulness of the challenged provisions of the Executive Orders. 31. HHS’s proposed changes to Article 10, which closely track the executive order’s directives on official time, would hinder NTEU in preparing and presenting grievances on behalf of the almost 15,000 HHS employees that the union represents. Moffett Decl. ¶ 34 (UE 12). Compare UE 60-61 (current HHS Article 10) with UE 36-39 (proposed changes to Article 10). Response: This paragraph constitutes a characterization of proposed HHS Article 10, rather than a statement of material fact to which a response is required. Defendants respectfully refer the Court to the text of proposed HHS Article 10 for a complete and accurate statement of its contents. This paragraph further contains legal argument and speculation about future events 14 Case 1:18-cv-01261-KBJ Document 40-2 Filed 07/16/18 Page 17 of 83 without any evidentiary foundation, to which no response is required. 32. NTEU has specifically bargained for reasonable official time for employees to make their views known to Congress on important matters affecting employees’ conditions of employment. Moffett Decl. ¶ 35 (UE 12-13). Response: It is undisputed that NTEU has previously bargaining for official time for certain activities. The remaining allegations in this paragraph are immaterial to any issue before the Court because what NTEU has historically negotiated is not relevant to the lawfulness of the challenged provisions of the Executive Orders 33. HHS and NTEU have long recognized that it is in the “public interest” for union representatives to be granted the use of official time to petition Congress on matters related to federal employees’ conditions of employment. Moffett Decl. ¶ 35 (UE 13). See, e.g., UE 57, 62 (current HHS Article 10). Response: This paragraph constitutes a characterization of HHS Article 10, rather than a statement of material fact to which a response is required. Defendants respectfully refer the Court to the text of HHS Article 10 for a complete and accurate statement of its contents. The allegations in this paragraph are further immaterial to any issue before the Court because what HHS Article 10 provides is not relevant to the lawfulness of the challenged provisions of the Executive Orders. 34. NTEU’s collective bargaining agreement with CBP similarly allows for official time for employees to petition Congress by, for example, visiting, phoning and writing to elected representatives, on matters concerning employees' conditions of employment. This provision has been in the CBP agreement for more than 20 years. Moffett Decl. ¶ 37 (UE 13). Response: This paragraph constitutes a characterization of NTEU’s collective bargaining 15 Case 1:18-cv-01261-KBJ Document 40-2 Filed 07/16/18 Page 18 of 83 agreement with CBP, rather than a statement of material fact to which a response is required. Defendants respectfully refer the Court to the text of NTEU’s collective bargaining agreement with CBP for a complete and accurate statement of its contents. The allegations in this paragraph are further immaterial to any issue before the Court because what NTEU’s collective bargaining agreement with CBP provides is not relevant to the lawfulness of the challenged provisions of the Executive Orders. 35. The current version of HHS Article 10 expressly states that union representatives “shall be granted” official time “to meet with members of Congress and their staffs on matters relating to bargaining unit conditions of employment.” Moffett Decl. ¶ 36 (UE 13); see UE 62 (current HHS Article 10). Response: This paragraph constitutes a characterization of HHS Article 10, rather than a statement of material fact to which a response is required. Defendants respectfully refer the Court to the text of HHS Article 10 for a complete and accurate statement of its contents. The allegations in this paragraph are further immaterial to any issue before the Court because what HHS Article 10 provides is not relevant to the lawfulness of the challenged provisions of the Executive Orders. 36. The HHS’s June 11 proposal, which eliminates this use of official time, tracks the explicit ban on the use of official time for such activities in Section 4(a)(i) of the Official Time EO. Moffett Decl. ¶ 36 (UE 13); see UE 36-37 (HHS Proposed Article 10). See also Executive Order 13,837, Sec. 4(a)(i). Response: This paragraph contains legal argument, to which no response is required, and constitutes a characterization of HHS’s June 11 proposal. Defendants respectfully refer the Court to the text of the June 11 proposal for a complete and accurate statement of its contents. 16 Case 1:18-cv-01261-KBJ Document 40-2 Filed 07/16/18 Page 19 of 83 The allegations in this paragraph are further immaterial to any issue before the Court because what proposed HHS Article 10 provides is not relevant to the lawfulness of the challenged provisions of the Executive Orders. 37. Consistent with the statute, NTEU negotiates grievance procedures that are broad in scope, through which employees or NTEU can file a grievance on matters relating to employment or violations of law. Moffett Decl. ¶ 42 (UE 14). See, e.g., id. ¶ 6.a (UE 5) (IRS Article 41, Employee Grievance; Article 42, Institutional Grievance Procedures); id. ¶ 6.b (CBP Article 27, Grievance Procedure). Response: This paragraph contains legal argument, to which no response is required, and constitutes a characterization of IRS Article 41 and CBP Article 27. Defendants respectfully refer the Court to the text of IRS Article 41 and CBP Article 27 for a complete and accurate statement of their contents. The allegations in this paragraph are further immaterial to any issue before the Court because what IRS Article 41 and CBP Article 27 provide is not relevant to the lawfulness of the challenged provisions of the Executive Orders. 38. Article 45 reflects NTEU and HHS’s negotiated agreement on grievance procedures. The current Article 45 excludes 17 matters from the negotiated grievance procedure; of this number, five are expressly excluded by statute. Moffett Decl. ¶ 43 (UE 14- 15). See UE 70-78 (current HHS Article 45). Response: This paragraph contains legal argument, to which no response is required. This paragraph further constitutes a characterization of HHS Article 45, rather than a statement of material fact to which a response is required. Defendants respectfully refer the Court to the text of HHS Article 45 for a complete and accurate statement of its contents. The allegations in this paragraph are further immaterial to any issue before the Court because what HHS Article 45 17 Case 1:18-cv-01261-KBJ Document 40-2 Filed 07/16/18 Page 20 of 83 provides is not relevant to the lawfulness of the challenged provisions of the Executive Orders, and the allegations in this paragraph are further immaterial to any issue before the Court. 39. In its June 11 submission, HHS proposes to exclude 41 matters from the negotiated grievance-procedure in addition to the five statutorily excluded matters, for a total of 46 exclusions. Moffett Decl. ¶ 44 (UE 15); see UE 40-42 (proposed HHS Article 45). Response: This paragraph contains legal argument, to which no response is required, and constitutes a characterization of HHS’s June 11 proposal and proposed Article 45. Defendants respectfully refer the Court to the text of the June 11 proposal and proposed Article 45 for a complete and accurate statement of their contents. The allegations in this paragraph are further immaterial to any issue before the Court because what proposed HHS Article 45 provides is not relevant to the lawfulness of the challenged provisions of the Executive Orders. 40. For the first time in its bargaining history with NTEU, HHS proposes to exclude from the grievance process any matter involving: opportunities to demonstrate acceptable performance; adverse personnel matters; decisions regarding performance awards, on the spot awards, or any other types of awards; decisions regarding incentive pay; disputes regarding the grant or denial of official time related to union representational activities; performance based actions; disciplinary or adverse actions; and many more. HHS also excludes from the grievance process any matter involving “disputes regarding whether these exclusions apply to a particular grievance.” Moffett Decl. ¶ 44 (UE 15); see UE 40-42 (proposed HHS Article 45). Response: This paragraph constitutes a characterization of HHS’s proposed Article 45. Defendants respectfully refer the Court to the text of the HHS’s proposed Article 45 for a complete and accurate statement of its contents. The allegations in this paragraph are further immaterial to any issue before the Court because what proposed HHS Article 45 provides is not 18 Case 1:18-cv-01261-KBJ Document 40-2 Filed 07/16/18 Page 21 of 83 relevant to the lawfulness of the challenged provisions of the Executive Orders. 41. HHS proposes, for the first time in its bargaining history with NTEU, to exclude from the parties’ grievance procedure any opportunity to demonstrate acceptable performance; determinations of an employee’s performance rating; and performance-based actions (including removals). Moffett Decl. ¶ 46 (UE 15); see UE 40-42 (proposed HHS Article 45). Response: This paragraph constitutes a characterization of HHS’s proposed Article 45. Defendants respectfully refer the Court to the text of the HHS’s proposed Article 45 for a complete and accurate statement of its contents. The allegations in this paragraph are further immaterial to any issue before the Court because what proposed HHS Article 45 provides is not relevant to the lawfulness of the challenged provisions of the Executive Orders. 42. HHS proposes to exclude all disciplinary or adverse actions from the grievance procedure. Moffett Decl. ¶ 46 (UE 15); see UE 40-42 (proposed HHS Article 45). Response: This paragraph constitutes a characterization of HHS’s proposed Article 45. Defendants respectfully refer the Court to the text of the HHS’s proposed Article 45 for a complete and accurate statement of its contents. The allegations in this paragraph are further immaterial to any issue before the Court because what proposed HHS Article 45 provides is not relevant to the lawfulness of the challenged provisions of the Executive Orders. 43. And, HHS proposes to exclude from the grievance procedure any complaint concerning performance awards or incentive pay. Moffett Decl. ¶ 46 (UE 15); see UE 40-42 (proposed HHS Article 45). Response: This paragraph constitutes a characterization of HHS’s proposed Article 45. Defendants respectfully refer the Court to the text of the HHS’s proposed Article 45 for a complete and accurate statement of its contents. The allegations in this paragraph are further 19 Case 1:18-cv-01261-KBJ Document 40-2 Filed 07/16/18 Page 22 of 83 immaterial to any issue before the Court because what proposed HHS Article 45 provides is not relevant to the lawfulness of the challenged provisions of the Executive Orders. 44. The negotiated grievances procedures in NTEU’s collective bargaining agreements allow for employees or for NTEU to grieve removals. Moffett Decl. ¶ 47 (UE 15). See, e.g., UE 74 (current HHS Article 45, Section 4). Response: This paragraph constitutes a characterization of HHS Article 45. Defendants respectfully refer the Court to the text of the HHS Article 45 for a complete and accurate statement of its contents. The allegations in this paragraph are further immaterial to any issue before the Court because what HHS Article 45 provides is not relevant to the lawfulness of the challenged provisions of the Executive Orders. 45. NTEU frequently invokes arbitration over removals. When the union invokes arbitration, employees get the chance to challenge unjust agency actions with the assistance of skilled and experienced union representatives. Moffett Decl. ¶ 47 (UE 15-16). Response: This paragraph contains legal argument, to which no response is required. To the extent a response is deemed required, Defendants dispute that agency actions are “unjust.” The allegations in this paragraph are further immaterial to any issue before the Court because whether NTEU has historically invoked arbitration is not relevant to the lawfulness of the challenged provisions of the Executive Orders. 46. NTEU’s ability to arbitrate unjust removals is one of the most important functions that it performs for its members. Moffett Decl. ¶ 47. Response: This paragraph contains legal argument, to which no response is required. The allegations in this paragraph are further immaterial to any issue before the Court because the relative importance to NTEU members of arbitration is not relevant to the lawfulness of the 20 Case 1:18-cv-01261-KBJ Document 40-2 Filed 07/16/18 Page 23 of 83 challenged provisions of the Executive Orders. 47. NTEU’s collective bargaining agreements allow for employees or the Union to grieve performance ratings and incentive pay, including monetary awards. Moffett Decl. ¶ 49, 52 (UE 16-17). Response: The allegations in this paragraph contain generic legal conclusions to which no response is required. To the extent that a response is required, disputed. This paragraph further constitutes a characterization of unspecified collective bargaining agreements. Defendants respectfully refer the Court to the text of the agreements for a complete and accurate statement of their contents. The allegations in this paragraph are further immaterial to any issue before the Court because what NTEU’s collective bargaining agreements generally provide is not relevant to the lawfulness of the challenged provisions of the Executive Orders. 48. Performance ratings determine entitlement to pay, awards, and other recognition. Moffett Decl. ¶ 50 (UE 16). Response: The allegations in this paragraph contain generic legal conclusions to which no response is required. To the extent that a response is required, disputed. 49. An unacceptable performance rating can subject an employee to an adverse personnel action, including removal. Moffett Decl. ¶ 50 (UE 16). Response: This paragraph contains speculation about future events without any evidentiary foundation and contains generic legal conclusions, to which no response is required. To the extent that a response is required, disputed. The allegations in this paragraph are further immaterial to any issue before the Court because the potential consequences of an unacceptable performance rating are not relevant to the lawfulness of the challenged provisions of the Executive Orders. 21 Case 1:18-cv-01261-KBJ Document 40-2 Filed 07/16/18 Page 24 of 83 50. Agencies are required to take performance ratings into account in determining which employees will be retained in the event of a reduction in force. Moffett Decl. ¶ 50 (UE 16). Response: This paragraph contains speculation about future events without any evidentiary foundation and contains generic legal conclusions, to which no response is required. To the extent that a response is required, disputed. The allegations in this paragraph are further immaterial to any issue before the Court because the potential consequences of performance ratings are not relevant to the lawfulness of the challenged provisions of the Executive Orders. 51. Highlighting the importance of the negotiated grievance procedure in performance ratings matters, NTEU successfully raised and resolved through its negotiated grievance procedures with the Securities and Exchange Commission and the Federal Deposit Insurance Corporation claims concerning illegal race and age discrimination related to performance appraisal ratings at those agencies. Moffett Decl. ¶ 51 (UE 16-17); Keller Decl. ¶ 11 (UE 82). Response: The allegations in this paragraph are immaterial to any issue before the Court because the historical resolution of a dispute with SEC and FDIC is not relevant to the lawfulness of the challenged provisions of the Executive Orders. 52. NTEU’s collective bargaining agreements also generally allow for employees or NTEU to file grievances related to types of incentive pay. Moffett Decl. ¶ 52 (UE 17). Response: This paragraph contains generic legal conclusions, to which no response is required. To the extent that a response is required, disputed. This paragraph further constitutes a characterization of unspecified collective bargaining agreements. Defendants respectfully refer the Court to the text of the agreements for a complete and accurate statement of their contents. 22 Case 1:18-cv-01261-KBJ Document 40-2 Filed 07/16/18 Page 25 of 83 The allegations in this paragraph are further immaterial to any issue before the Court because what NTEU’s collective bargaining agreements generally provide is not relevant to the lawfulness of the challenged provisions of the Executive Orders. 53. The importance of being able to challenge employer decisions related to these types of pay and awards is critical because, as with performance ratings, the employer’s decisions might be flawed or discriminatory. Moffett Decl. ¶ 52 (UE 17); Keller Decl. ¶ 12 (UE 82). Response: This paragraph contains legal argument and speculation about hypothetical events, to which no response is required. To the extent that a response is required, disputed. The allegations in this paragraph are further immaterial to any issue before the Court because NTEU’s subjective opinion and speculation about the relative importance of the ability to challenge employer decision related to pay and awards is not relevant to the lawfulness of the challenged provisions of the Executive Orders. 54. HHS has proposed the elimination of Article 43 (Adverse Actions). Section 3 of the current Article 43 expressly states: “the Employer [HHS] endorses the use of like penalties for like offenses and progressive discipline.” Moffett Decl. ¶ 54 (UE 17-18). See UE 65-66 (current HHS Article 43). Response: This paragraph constitutes a characterization of HHS Article 43. Defendants respectfully refer the Court to the text of the HHS Article 43 for a complete and accurate statement of its contents. The allegations in this paragraph are further immaterial to any issue before the Court because what HHS Article 43 provides is not relevant to the lawfulness of the challenged provisions of the Executive Orders. 55. In determining the appropriateness of a penalty, Section 4 of the current Article 43 23 Case 1:18-cv-01261-KBJ Document 40-2 Filed 07/16/18 Page 26 of 83 recognizes, among other factors, the “consistency of the penalty with those imposed upon other employees for the same or similar offenses.” Moffett Decl. ¶ 54 (UE 17-18). See UE 65-66 (current HHS Article 43). Response: This paragraph constitutes a characterization of HHS Article 43. Defendants respectfully refer the Court to the text of the HHS Article 43 for a complete and accurate statement of its contents. The allegations in this paragraph are further immaterial to any issue before the Court because what HHS Article 43 provides is not relevant to the lawfulness of the challenged provisions of the Executive Orders. 56. These provisions, or ones that similarly apply the factors established in Douglas v. Veterans Administration, 5 M.S.P.R. 280 (1981), have been in HHS collective bargaining agreements since NTEU assumed the role of exclusive representative. Moffett Decl. ¶ 55 (UE 18). Response: This paragraph contains legal argument to which no response is required, and further constitutes a characterization of unspecified HHS collective bargaining agreements. To the extent a response is deemed required, disputed. The allegations in this paragraph are further immaterial to any issue before the Court because what HHS agreements have historically provided is not relevant to the lawfulness of the challenged provisions of the Executive Orders. 57. Consistent with the Removal Procedures EO, HHS proposes to eliminate the requirements of progressive discipline and consistency of penalty while at the same time denying employees the opportunity to grieve adverse actions, including removal. Moffett Decl. ¶ 57 (UE 18); see UE 32. Response: This paragraph contains legal argument to which no response is required, and further constitutes a characterization of unspecified HHS proposals. To the extent a response is 24 Case 1:18-cv-01261-KBJ Document 40-2 Filed 07/16/18 Page 27 of 83 deemed required, disputed. The allegations in this paragraph are further immaterial to any issue before the Court because HHS proposal provide is not relevant to the lawfulness of the challenged provisions of the Executive Orders. 58. NTEU routinely negotiates the length of what is commonly known as “the performance improvement period” or PIP in its collective bargaining agreements. Moffett Decl. ¶ 60 (UE 19). See, e.g., id. ¶ 6.a (UE 5) (citing IRS Article 40, Unacceptable Performance) and id. ¶ 6.b (citing CBP Article 21, Unacceptable Performance). Response: Defendants dispute that NTEU “routinely” negotiates PIP durations. This paragraph constitutes a characterization of IRS Article 40 and CBP Article 21. Defendants respectfully refer the Court to the text of IRS Article 40 and CBP Article 21 for a complete and accurate statement of their contents. The allegations in this paragraph are further immaterial to any issue before the Court because what IRS Article 40 and CBP Article 21 provide is not relevant to the lawfulness of the challenged provisions of the Executive Orders. 59. The PIPs that NTEU bargains are frequently longer than 30 days. Moffett Decl. ¶ 61 (UE 19). Response: The allegations in this paragraph are immaterial to any issue before the Court because the duration of PIPs that NTEU has historically bargained is not relevant to the lawfulness of the challenged provisions of the Executive Orders. 60. NTEU has found that, due to the nature of their positions, many employees require periods greater than 30 days to show that they can perform at their jobs. Moffett Decl. ¶ 61 (UE 19). See, e.g., Keller Decl. ¶ 9 (UE 81) (current OCC Article 31 provides for 60120 days for PIP). Response: This paragraph contains legal argument to which no response is required. To 25 Case 1:18-cv-01261-KBJ Document 40-2 Filed 07/16/18 Page 28 of 83 the extent a response is deemed required, disputed. 61. NTEU’s contract with the Internal Revenue Service, for example, provides that "[p]rior to issuing a notice of proposed action based on unacceptable performance, the Employer will issue a letter to the employee which contains . . . a statement that the employee has a reasonable period of time (specified in days) but never less than sixty (60) days in which to bring performance up to an acceptable level." Moffett Decl. ¶ 61 (UE 19). Response: This paragraph contains legal argument to which no response is required, and this paragraph further constitutes a characterization of a IRS collective bargaining agreement. Defendants respectfully refer the Court to the text of the IRS collective bargaining agreement for a complete and accurate statement of its contents. The allegations in this paragraph are further immaterial to any issue before the Court because what the IRS agreement provides is not relevant to the lawfulness of the challenged provisions of the Executive Orders. 62. Similarly, NTEU's contract with Customs and Border Protection provides that, prior to removing an employee for unacceptable performance, “[t]he employee will be provided a reasonable period of time, at least sixty (60) days, to improve his/her performance to the Successful level.” Moffett Decl. ¶ 61 (UE 19). Response: This paragraph contains legal argument to which no response is required, and this paragraph further constitutes a characterization of a CBP collective bargaining agreement. Defendants respectfully refer the Court to the text of the CBP collective bargaining agreement for a complete and accurate statement of its contents. The allegations in this paragraph are further immaterial to any issue before the Court because what the CBP agreement provides is not relevant to the lawfulness of the challenged provisions of the Executive Orders. 63. Current HHS Article 31 provides that employees will have “not fewer than sixty 26 Case 1:18-cv-01261-KBJ Document 40-2 Filed 07/16/18 Page 29 of 83 (60) days” to demonstrate acceptable performance. Moffett Decl. ¶ 62 (UE 19). In its June 11 submission, HHS proposes to eliminate, in its entirety, the parties’ agreement on unacceptable performance. Moffett Decl. ¶ 63 (UE 19); see UE 32. Response: This paragraph contains legal argument to which no response is required, and this paragraph further constitutes a characterization of current HHS Article 31 and HHS’s June 11 proposal. Defendants respectfully refer the Court to the text of Article 31 and HHS’s June 11 proposal for a complete and accurate statement of their contents. The allegations in this paragraph are further immaterial to any issue before the Court because what HHS has proposed is not relevant to the lawfulness of the challenged provisions of the Executive Orders. 64. In its June 11 submission, HHS proposes to eliminate, in its entirety, the parties’ agreement on unacceptable performance. Moffett Decl. ¶ 63 (UE 19); see UE 32. Response: This paragraph constitutes a characterization of HHS’s June 11 proposal. Defendants respectfully refer the Court to the text of HHS’s June 11 proposal for a complete and accurate statement of its contents. The allegations in this paragraph are further immaterial to any issue before the Court because what HHS has proposed is not relevant to the lawfulness of the challenged provisions of the Executive Orders. 65. In the absence of an agreement, HHS has complete discretion to impose limitations on the length of a PIP. Moffett Decl. ¶ 63 (UE 19-20). Response: This paragraph contains legal argument and speculation about hypothetical events, to which no response is required. To the extent a response is deemed required, disputed. 66. NTEU has already begun to adopt a completely different approach to bargaining with agencies. Moffett Decl. ¶ 38 (UE 13). Response: The allegations in this paragraph are immaterial to any issue before the Court 27 Case 1:18-cv-01261-KBJ Document 40-2 Filed 07/16/18 Page 30 of 83 because whether NTEU has changed its bargaining approach is not relevant to the lawfulness of the challenged provisions of the Executive Orders. 67. Under the federal labor statute, NTEU and agency-employers customarily offer packages of proposals that, if accepted, can result in a complete agreement. Moffett Decl. ¶ 39 (UE 13). Response: This paragraph contains legal argument and speculation about hypothetical “customary” events, to which no response is required. The allegations in this paragraph are immaterial to any issue before the Court because NTEU’s historical practice is not relevant to the lawfulness of the challenged provisions of the Executive Orders. 68. Because there will be far fewer options over which NTEU may bargain, the Union has less flexibility to compromise with HHS in reaching an agreement on those subjects. Moffett Decl. ¶ 39 (UE 13). Response: This paragraph contains legal argument and speculation about hypothetical future events, to which no response is required. To the extent a response is deemed required, disputed. The allegations in this paragraph are immaterial to any issue before the Court because NTEU’s potential future bargaining positions are not relevant to the lawfulness of the challenged provisions of the Executive Orders. 69. The Department of the Treasury, Bureau of the Fiscal Service (BFS) similarly notified NTEU, by letter dated June 12, 2018, that the agency intended to open the parties’ collective bargaining agreement “to provide clarification of expectations and intentions, and to bring it into compliance with updated rules, laws, Executive Orders and policies.” Moffett Decl. ¶ 11 (Att. 1.B) (UE 6-7); see UE 25-26 (Treasury letter). Response: This paragraph constitutes a characterization of a June 12 letter from the 28 Case 1:18-cv-01261-KBJ Document 40-2 Filed 07/16/18 Page 31 of 83 Department of the Treasury. Defendants respectfully refer the Court to the text of the June 12 letter for a complete and accurate statement of its contents. The allegations in this paragraph are further immaterial to any issue before the Court because what the June 12 letter provides is not relevant to the lawfulness of the challenged provisions of the Executive Orders. 70. On June 15, 2018, OCC submitted proposals for revisions to the parties’ collective bargaining agreement consistent with the executive orders’ requirements. Moffett Decl. ¶ 11 (UE 7); Keller Decl. ¶ 5, 15 (UE 81, 83). Response: This paragraph contains legal argument to which no response is required, and further constitutes a characterization of a June 15 OCC proposal. Defendants respectfully refer the Court to the text of the June 15 proposal for a complete and accurate statement of its contents. The allegations in this paragraph are further immaterial to any issue before the Court because what OCC has proposed is not relevant to the lawfulness of the challenged provisions of the Executive Orders. 71. OCC proposes changes to 13 articles, to include Performance (Article 8), Unacceptable Performance (Article 31) Access to Facilities (Article 37), and Employee Compensation and Benefits (Article 39). Keller Decl. ¶ 7 (UE 81). Response: This paragraph constitutes a characterization of a June 15 OCC proposal. Defendants respectfully refer the Court to the text of the June 15 proposal for a complete and accurate statement of its contents. The allegations in this paragraph are further immaterial to any issue before the Court because what OCC has proposed is not relevant to the lawfulness of the challenged provisions of the Executive Orders. 72. OCC proposes to eliminate all union office space. Keller Decl. ¶ 13 (UE 82) Response: This paragraph constitutes a characterization of a OCC proposal. Defendants 29 Case 1:18-cv-01261-KBJ Document 40-2 Filed 07/16/18 Page 32 of 83 respectfully refer the Court to the text of the OCC proposal for a complete and accurate statement of its contents. The allegations in this paragraph are further immaterial to any issue before the Court because what OCC has proposed is not relevant to the lawfulness of the challenged provisions of the Executive Orders. 73. OCC proposes to exclude performance appraisals, merit pay, and merit bonus determinations from the negotiated grievance procedure. Keller Decl. ¶ 8. Response: This paragraph constitutes a characterization of a OCC proposal. Defendants respectfully refer the Court to the text of the OCC proposal for a complete and accurate statement of its contents. The allegations in this paragraph are further immaterial to any issue before the Court because what OCC has proposed is not relevant to the lawfulness of the challenged provisions of the Executive Orders. 74. OCC proposes to reduce the length of the contractual performance improvement period to 30 days, compared to the current 60-120 days provided in the current Article 31. Keller Decl. ¶ 9. Response: This paragraph constitutes a characterization of a OCC proposal. Defendants respectfully refer the Court to the text of the OCC proposal for a complete and accurate statement of its contents. The allegations in this paragraph are further immaterial to any issue before the Court because what OCC has proposed is not relevant to the lawfulness of the challenged provisions of the Executive Orders. 75. Negotiations with these agencies will require the investment of significant time, effort, and resources by NTEU. Moffett Decl. ¶ 64 (UE 20). Response: This paragraph contains speculation about future events without any evidentiary foundation, to which no response is deemed required. To the extent that a response 30 Case 1:18-cv-01261-KBJ Document 40-2 Filed 07/16/18 Page 33 of 83 is required, disputed. The allegations in this paragraph are further immaterial to any issue before the Court because whether NTEU will have to expend time, effort, and resources in the future is not relevant to the lawfulness of the challenged provisions of the Executive Orders. 76. By weakening NTEU’s effectiveness and ability to influence working conditions via the collective bargaining process, the executive orders make it more difficult for NTEU to recruit and to retain members. Moffett Decl. ¶ 64 (UE 20). Response: This paragraph contains speculation about future events without any evidentiary foundation, to which no response is deemed required. To the extent that a response is required, disputed. 77. Recruitment and retention of members is critical to NTEU because it relies primarily on the dues paid by its members for its continued existence. Moffett Decl. ¶ 64 (UE 20). Response: This paragraph contains speculation about future events without any evidentiary foundation, to which no response is deemed required. To the extent that a response is required, disputed. The allegations in this paragraph are further immaterial to any issue before the Court because the relative importance of member dues to NTEU is not relevant to the lawfulness of the challenged provisions of the Executive Orders. 78. Further, the drain on NTEU’s treasury has a negative impact on its ability to provide services to its members. Moffett Decl. ¶ 64 (UE 20). Response: This paragraph contains speculation about future events without any evidentiary foundation, to which no response is deemed required. To the extent that a response is required, disputed. The allegations in this paragraph are further immaterial to any issue before the Court because the effect of a hypothetical financial impact to NTEU is not relevant to the 31 Case 1:18-cv-01261-KBJ Document 40-2 Filed 07/16/18 Page 34 of 83 lawfulness of the challenged provisions of the Executive Orders. 79. By restricting, and in many cases eliminating, NTEU’s ability to negotiate over the subject matters covered by the executive orders, employees are deprived of the benefits of the bargains that the Union could otherwise strike on their behalf. Moffett Decl. ¶ 64 (UE 20). Response: This paragraph contains legal argument and speculation about future events without any evidentiary foundation, to which no response is required. To the extent a response is deemed required, disputed. 32 Case 1:18-cv-01261-KBJ Document 40-2 Filed 07/16/18 Page 35 of 83 DEFENDANTS’ RESPONSE TO PLAINTIFF AFSCME et al.’s STATEMENT 1. On May 25, 2018, Defendant Donald J. Trump issued three Executive Orders: (1) Executive Order No. 13,836, titled “Developing Efficient, Effective, and Cost-Reducing Approaches to Federal Sector Collective Bargaining” (hereafter, the “Bargaining Process Order”), see 83 FR 25,329; (2) Executive Order No. 13,837, titled “Executive Order Ensuring Transparency, Accountability, and Efficiency in Taxpayer Funded Union Time Use” (hereafter, the “Official Time Order”), see 83 FR 25335; and (3) Executive Order No. 13,839, titled “Promoting Accountability and Streamlining Removal Procedures Consistent with Merit System Principles” (hereafter, the “Removal Order”), see 83 FR 25,343. Response: Undisputed 2. Plaintiff American Federation of State, County and Municipal Employees, AFL-CIO (“AFSCME”) is a labor organization whose subordinate bodies are certified as the exclusive collective bargaining representatives of various collective bargaining units certified pursuant to the Federal Service Labor-Management Relations Statute (“FSLMRS”), namely 5 U.S.C. § 7111. (See Declaration of Andrew Washington (“Washington Decl.”) ¶¶ 4 & 6). Response: It is undisputed that AFSCME is a labor organization. The remaining allegations in this paragraph are immaterial to any issue before the Court because whether AFSCME’s subordinate bodies are certified collective bargaining representatives is not relevant to the lawfulness of the challenged provisions of the Executive Orders. 3. Plaintiff American Federation of Teachers, AFL-CIO (“AFT”) is a labor organization whose subordinate body, the Overseas Federation of Teachers, is certified as the exclusive collective bargaining representative of a collective bargaining unit certified pursuant 33 Case 1:18-cv-01261-KBJ Document 40-2 Filed 07/16/18 Page 36 of 83 to the FSLMRS, namely 5 U.S.C. § 7111. (See Declaration of Linda Hogan (“Hogan Decl.”) ¶¶ 2 & 4-5). Response: It is undisputed that AFT is a labor organization. The remaining allegations in this paragraph are immaterial to any issue before the Court because whether AFT’s subordinate body is a certified collective bargaining representative is not relevant to the lawfulness of the challenged provisions of the Executive Orders. 4. Both AFSCME and AFT and their subordinate bodies representing federal employees are unincorporated membership associations. (See Washington Decl. ¶¶ 7 & 8; Hogan Decl. ¶ 7). Response: It is undisputed that AFSCME and AFT are labor organizations that represent federal employees. The remaining allegations in this paragraph are immaterial to any issue before the Court because whether AFSCME and AFT and their subordinate bodies are unincorporated membership associations is not relevant to the lawfulness of the challenged provisions of the Executive Orders. 5. Membership in AFSCME or AFT is voluntary. (See Washington Decl. ¶ 8; Hogan Decl. ¶ 8). Response: The allegations in this paragraph are immaterial to any issue before the Court because whether membership in AFSCME and AFT is voluntary is not relevant to the lawfulness of the challenged provisions of the Executive Orders. 6. The respective leaderships of AFSCME and AFT are democratically elected by and from among their respective memberships. (See Washington Decl. ¶ 9; Hogan Decl. ¶ 9). Response: The allegations in this paragraph are immaterial to any issue before the 34 Case 1:18-cv-01261-KBJ Document 40-2 Filed 07/16/18 Page 37 of 83 Court because whether AFSCME and AFT leadership are democratically elected by and from among their respective memberships is not relevant to the lawfulness of the challenged provisions of the Executive Orders. 7. AFSCME’s and AFT’s members form and join their respective unions to improve their employment conditions through collective bargaining and to engage in other forms of mutual aid and protection. (See Washington Decl. ¶¶ 10 & 11; Hogan Decl. ¶ 10). Response: It is undisputed that AFSCME and AFT engage in collective bargaining. The remaining allegations in this paragraph are immaterial to any issue before the Court because the reasons why AFSCME and AFT members form and join their unions are not relevant to the lawfulness of the challenged provisions of the Executive Orders. 8. AFSCME’s and AFT’s subordinate bodies are parties to collective bargaining agreements with federal executive agencies. (See Washington Decl. ¶ 12; Hogan Decl. ¶ 6). Response: Undisputed. 9. Such collective bargaining agreements govern the employment conditions of persons employed within the applicable collective bargaining units, without regard to whether such persons are members of AFSCME, or of AFT, or have not elected to join the union certified to represent them. (See Washington Decl. ¶¶ 13 & 14; Hogan Decl. ¶ 13a & 13b). Response: The allegations in this paragraph are immaterial to any issue before the Court because whether or not certain federal employees are or are not members of AFSCME and AFT is not relevant to the lawfulness of the challenged provisions of the Executive Orders. 10. Without regard to AFSCME membership, the FSLMRS obligates AFSCME’s 35 Case 1:18-cv-01261-KBJ Document 40-2 Filed 07/16/18 Page 38 of 83 subordinate bodies to represent all persons employed within the collective bargaining units of the respective executive agencies. (See Washington Decl. ¶¶ 13&14). The same is true with respect to AFT’s subordinate body and the bargaining unit it is certified to represent. (See Hogan Decl. ¶ 13b). Response: This paragraph constitutes a characterization of obligations pursuant to the FSLMRS, rather than a statement of material fact to which a response is required. Defendants respectfully refer the Court to the text of the FSLMRS for a complete and accurate statement of its contents. 11. In order to comply with these obligations, AFSCME’s and AFT’s affiliates negotiate collective bargaining agreements; enforce and administer the collective bargaining agreements (CBAs) they negotiate; process and arbitrate grievances brought pursuant to negotiated grievance procedures; and represent bargaining unit members in formal discussions or investigative examinations pursuant to 5 U.S.C. § 7114(a)(2). (See Washington Decl. ¶ 15; Hogan Decl. ¶ 11). Response: The reasons why AFSCME and AFT affiliates engage in the conduct described in this paragraph are immaterial to any issue before the Court because any such reasons are not relevant to the lawfulness of the challenged provisions of the Executive Orders; the allegations of this paragraph are otherwise undisputed. 12. Other issues addressed by AFSCME or AFT through their CBAs or in negotiations include, but are not limited to: grievance procedures and processes; scope and extent of grievance procedures to resolve disputes; progressive and appropriate discipline; performance improvement periods, including their length and the assessment of improvement and employee performance; reasonable use of Official Time by federally employed members; 36 Case 1:18-cv-01261-KBJ Document 40-2 Filed 07/16/18 Page 39 of 83 use of federally owned office space and communications systems; and efforts to lobby Congress with respect to workplace matters involving employment conditions and appropriations necessary for the efficient operations of the agency, including adequate remuneration of federal employees. (See Washington Decl. ¶¶ 16 & 17; Hogan Decl. ¶¶ 11, 14). Response: It is undisputed that AFSCME and AFT collective bargaining agreements refer to the topics listed in this paragraph. The remaining allegations in this paragraph are immaterial to any issue before the Court because whether these topics have historically been addressed during AFSCME and AFT’s negotiations is not relevant to the lawfulness of the challenged provisions of the Executive Orders. 13. AFSCME’s affiliates also negotiate with federal agency employers over topics and matters relating to the employees or positions assigned to particular work, the methods and means of performing work, and the procedures agency officials observe with respect to decisions relating to such matters, as well as the treatment of bargaining unit members adversely affected by any such changes. (See Washington Decl. ¶ 18). Response: The allegations in this paragraph are immaterial to any issue before the Court because whether these topics have historically been addressed during AFSCME’s negotiations is not relevant to the lawfulness of the challenged provisions of the Executive Orders. 14. When AFSCME’s and AFT’s affiliates negotiate collective bargaining agreements or mid-contract decisions with federal agency employers, such negotiations include multiple face-to-face meetings and discussions across the bargaining table. The issues are often complex and require discussion and an open mind to parties’ presentations. (See Washington Decl. ¶ 19; Hogan Decl. ¶ 15). 37 Case 1:18-cv-01261-KBJ Document 40-2 Filed 07/16/18 Page 40 of 83 Response: The allegations in this paragraph are immaterial to any issue before the Court because the specific manner of AFSCME and AFT’s negotiations are not relevant to the lawfulness of the challenged provisions of the Executive Orders. 15. AFSCME and AFT have negotiated collective bargaining agreements with their respective federal agency employers, which consist of the terms agreed to through negotiations over the aforementioned topics and others. (See Washington Decl. ¶¶ 5, 15, 16; Hogan Decl. ¶ 18). Response: It is undisputed that AFSCME and AFT have negotiated collective bargaining agreement with federal agencies. The remaining allegations in this paragraph are immaterial to any issue before the Court because the terms that AFSCME and AFT have historically agreed to are not relevant to the lawfulness of the challenged provisions of the Executive Orders. 16. Plaintiffs are presently in negotiations with federal employers. (See Washington Decl. ¶ 5; Hogan Decl. ¶ 20). Response: The allegations in this paragraph are immaterial to any issue before the Court because whether AFSCME and AFT are presently engaged in negotiations is not relevant to the lawfulness of the challenged provisions of the Executive Orders. 17. The terms of the collective bargaining agreements apply to all bargaining unit members, not merely those who are union members. (See Washington Decl. ¶ 14; Hogan Decl. 13). Response: This paragraph constitutes a characterization of multiple collective bargaining agreements, rather than a statement of material fact to which a response is required. Defendants respectfully refer the Court to the text of the referenced agreements for a complete and accurate 38 Case 1:18-cv-01261-KBJ Document 40-2 Filed 07/16/18 Page 41 of 83 statement of their contents. 18. When AFSCME and AFT have negotiated collective bargaining agreements or mid-contract decisions with their respective federal agency employers, such negotiations have included multiple face-to-face meetings and discussions across the bargaining table. (See Washington Decl. ¶ 19; Hogan Decl. ¶ 15). Response: The allegations in this paragraph are immaterial to any issue before the Court because the specific manner of AFSCME and AFT’s historical negotiations are not relevant to the lawfulness of the challenged provisions of the Executive Orders. 19. Members and officers of AFSCME and AFT affiliates utilize Official Time in order to perform functions required of certified exclusive representatives under the FSLMRS, including the processing, presentation and prosecution of grievances arising under collective bargaining agreements, representation in merit system disputes, performance ratings, issues of an appropriate progressive discipline, and participation in labor-management groups. (See Washington Decl. ¶¶ 21 & 22; Hogan Decl. ¶ 16 & 19). Response: It is undisputed that AFSCME and AFT members use official time to perform certain activities. Whether those activities are required by the FSLMRS is a legal conclusion and argument to which no response is required. The remaining allegations in this paragraph are immaterial to any issue before the Court because the specific activities that AFSCME and AFT conduct on official time is not relevant to the lawfulness of the challenged provisions of the Executive Orders. 20. Use of Official Time is negotiated by Plaintiffs with executive agencies. (See Washington Decl. ¶ 16, 17 & 22; Hogan Decl. ¶ 17). Response: It is undisputed that AFSCME and AFT negotiate for the use of official 39 Case 1:18-cv-01261-KBJ Document 40-2 Filed 07/16/18 Page 42 of 83 time for certain activities. The remaining allegations in this paragraph are immaterial to any issue before the Court because whether AFSCME and AFT have historically negotiated for the use of official time is not relevant to the lawfulness of the challenged provisions of the Executive Orders. 21. The use of Official Time is not evenly spread among the bargaining unit or union members. Rather, in order to efficiently and properly fulfill the duty to fairly represent the bargaining unit, the obligations are shouldered by designated representatives, such as stewards, who utilize a substantial amount of necessary and reasonable Official Time to perform the functions of representation. (See Washington Decl. ¶¶ 23 & 24; Hogan Decl. ¶ 22). Response: The allegations in this paragraph are immaterial to any issue before the Court because the historical manner in which AFSCME and AFT have allocated the use of official time among their members is not relevant to the lawfulness of the challenged provisions of the Executive Orders. 22. The substantial use of Official Time by designated representatives permits the bulk of the unit workforce to use less, if any, Official Time. (See Washington Decl. ¶¶ 23 & 24; Hogan Decl. ¶ 22). Response: This paragraph contains speculation and opinion about how use of official time affects the workforce, rather than stating a material fact. The allegations in this paragraph are further immaterial to any issue before the Court because the historical manner in which AFSCME and AFT have allocated the use of official time among their members is not relevant to the lawfulness of the challenged provisions of the Executive Orders. 23. The substantial use of Official Time by designated representatives also 40 Case 1:18-cv-01261-KBJ Document 40-2 Filed 07/16/18 Page 43 of 83 ensures efficiency in that experienced union representatives with institutional knowledge and an understanding of the collective bargaining agreement are able to represent the union and individual employees, fulfilling the Union’s obligation of representation. (See Washington Decl. ¶¶ 23 & 24; Hogan Decl. ¶ 21 & 22). Response: This paragraph contains speculation and opinion about how use of official time affects the workforce, rather than stating a material fact. The allegations in this paragraph are further immaterial to any issue before the Court because the historical manner in which AFSCME and AFT have allocated the use of official time among their members is not relevant to the lawfulness of the challenged provisions of the Executive Orders. 24. Further, both AFT’s and AFSCME’s subordinate bodies representing federal executive agency employees utilize space within federally-owned buildings, and federally owned communications systems, in order to fulfill their duties as exclusive collective bargaining representatives. (See Washington Decl. ¶ 25; Hogan Decl. ¶ 23). Response: The allegations in this paragraph are immaterial to any issue before the Court because the reasons why AFSCME and AFT utilize federal property and communication systems are not relevant to the lawfulness of the challenged provisions of the Executive Orders. 25. The use of federally owned space, and utilization of federally owned communications systems, is negotiated and reduced to writing during the negotiation of the parties’ collective bargaining agreements. (See Washington Decl. ¶ 26; AFT Decl. ¶ 24). Response: The allegations in this paragraph are immaterial to any issue before the Court because the historical manner in which AFSCME and AFT have negotiated the use of 41 Case 1:18-cv-01261-KBJ Document 40-2 Filed 07/16/18 Page 44 of 83 federal property and communication systems is not relevant to the lawfulness of the challenged provisions of the Executive Orders. 26. The May 25, 2018 Executive Orders are applicable to departments and agencies AFSCME and AFT are certified to represent. (See Washington Decl. ¶ 12; Hogan Decl. ¶ 5). Response: Undisputed. 27. Defendants U.S. Office of Personnel Management (“OPM”) and Jeff T. H. Pon, Director of OPM, are currently obligated to implement the terms of the Executive Orders. (Paterson Declaration, Exh. B; Executive Orders Nos. 13,836, 13,837 & 13,839). Response: It is undisputed that Defendant OPM and Pon are required to implement certain provisions of the Executive Orders. This paragraph further constitutes a characterization of the Executive Orders, rather than a statement of material fact to which a response is required. Defendants respectfully refer the Court to the text of the Executive Orders for a complete and accurate statement of their contents. Defendants otherwise dispute this paragraph to the extent that it extends to provisions of the Orders that Defendants OPM and Pon are not required to implement. 28. The White House’s Fact Sheet on the Executive Orders, issued at the direction of Defendant Trump, states with respect to the Official Time Executive Order that: • “Those Federal employees authorized to act on behalf of unions will be permitted to spend no more than 25 percent of their time on union business.”; • “The order cuts back on lobbying or pursuing a grievance against an agency on taxpayer-funded union time. Taxpayers should not pay for unions to sue or lobby the government.”; and • “Agencies will charge rent to employees that use Federal office space for non-agency business and stop covering travel expenses for non-agency 42 Case 1:18-cv-01261-KBJ Document 40-2 Filed 07/16/18 Page 45 of 83 business.” (See Declaration of Teague P. Paterson (“Paterson Decl.”) ¶¶ 4, 5 & Exh. B). Response: This paragraph constitutes a characterization of the White House’s Fact Sheet. Defendants respectfully refer the Court to the text of the Fact Sheet for a complete and accurate statement of its contents. The allegations in this paragraph are further immaterial to any issue before the Court because whether the Fact Sheet contains the quoted statements is not relevant to the lawfulness of the challenged provisions of the Executive Orders. 29. In his 2019 Fiscal Budget Statement, the President stated: “Federal employer-employee relations activities currently consume considerable management time and taxpayer resources, and may negatively impact efficiency, effectiveness, cost of operations, and employee accountability and performance. About 60 percent of Federal employees belong to a union. Federal statute defines the parameters of collective bargaining, which are different than those in the private sector and State or local governments. Federal employees are not allowed to strike and unions must represent all eligible employees regardless of paid membership. Fewer items are negotiable than in the private sector. Yet, collective bargaining contracts can have a significant impact on agency performance, workplace productivity, and employee satisfaction. The Administration sees an opportunity for progress on this front and intends to overhaul labor-management relations. On September 29, 2017, Executive Order 13812 rescinded the requirement for labor-management forums. Agencies were further instructed to remove any internal policies, programs, or guidelines related to existing forums.” (See Declaration of Teague P. Paterson (“Paterson Decl.”) ¶ 2 & Exh. A). Response: This paragraph constitutes a characterization of the 2019 Fiscal Budget Statement. Defendants respectfully refer the Court to the text of the Budget Statement for a complete and accurate statement of its contents. The allegations in this paragraph are further immaterial to any issue before the Court because whether the Budget Statement contains the quoted statements is not relevant to the lawfulness of the challenged provisions of the Executive Orders. 43 Case 1:18-cv-01261-KBJ Document 40-2 Filed 07/16/18 Page 46 of 83 DEFENDANTS’ RESPONSE TO PLAINTIFF NFFE et al.’s STATEMENT 1. Plaintiff National Federation of Federal Employees, FD-1, IAMAW, AFL-CIO (“NFFE”), is a labor union certified as the exclusive bargaining representative of approximately 110,000 federal employees. Compl. ¶4. Response: It is undisputed that NFFE is a labor organization that represents federal employees. 2. Plaintiff International Association of Machinists and Aerospace Workers, AFL- CIO (“IAM”) is a labor union of nearly 600,000 members, representing approximately 20,000 federal employees. Compl. ¶5. Response: It is undisputed that IAM is a labor organization that represents federal employees. 3. Plaintiff Seafarers International Union of North America, AFL-CIO (“SIUNA”) is a labor union representing approximately 5,500 federal employees through its affiliate the Seafarers International Union, Atlantic, Gulf, Lakes and Inland Waters District (“SIU, AGLIWD”). Compl. ¶ 6. Response: It is undisputed that SIUNA is a labor organization that represents federal employees. 4. Plaintiff National Association of Government Employees, Inc. (“NAGE”) is a labor union certified as the exclusive representative of approximately 110,000 employees including 75,000 federal employees. Compl. ¶7. Response: It is undisputed that NAGE is a labor organization that represents federal employees. 5. Plaintiff International Brotherhood of Teamsters (“Teamsters”) is a labor union of 44 Case 1:18-cv-01261-KBJ Document 40-2 Filed 07/16/18 Page 47 of 83 approximately 1.4 million members, serving as the exclusive representative for approximately 1,700 federal employees. Compl. ¶8. Response: It is undisputed that Teamsters is a labor organization that represents federal employees. 6. Plaintiff Federal Education Association, Inc. (“FEA”) is a labor union and unified state affiliate of the National Education Association, and it serves as exclusive representative for 6,000 educators and support professionals working for the federal government. Compl. ¶9. Response: It is undisputed that FEA is a labor organization that represents federal employees. 7. Plaintiff Metal Trades Department, AFL-CIO, (“MTD”), is a labor union serving as the exclusive representative of approximately 21,000 federal employees. Compl. ¶10. Response: It is undisputed that MTD is a labor organization that represents federal employees. 8. Plaintiff International Federation of Professional and Technical Engineers, AFL- CIO & CLC (“IFPTE”) is a labor union certified as the exclusive representative of approximately 20,000 federal employees. Compl. ¶11. Response: It is undisputed that IFPTE is a labor organization that represents federal employees. 9. Plaintiff National Weather Service Employees Organization (“NWSEO”) is a labor union certified as the exclusive representative of approximately 4,000 employees of the National Ocean and Atmospheric Administration, U.S. Department of Commerce. Compl. ¶12. Response: It is undisputed that NWSEO is a labor organization that represents federal employees. 45 Case 1:18-cv-01261-KBJ Document 40-2 Filed 07/16/18 Page 48 of 83 10. Plaintiff Patent Office Professional Association is a labor union certified as the exclusive representative of approximately 8,500 patent examiners and other professional employees of the U.S. Patent and Trademark Office, U.S. Department of Commerce. Compl. ¶13. Response: It is undisputed that Patent Office Professional Association is a labor organization that represents federal employees. 11. Plaintiff National Labor Relations Board Union (“NLRBU”) is a labor union certified as the exclusive bargaining representative of approximately 750 federal employees. Compl. ¶14. Response: It is undisputed that NLRBU is a labor organization that represents federal employees. 12. Plaintiff National Labor Relations Board Professional Association (“NLRBPA”) is a labor union certified as the exclusive bargaining representative of approximately 140 attorneys and FOIA Specialists at the headquarters for the National Labor Relations Board. Compl. ¶15. Response: It is undisputed that NLRPA is a labor organization that represents federal employees. 13. Plaintiff Marine Engineers’ Beneficial Association, District No. 1 PCD, AFL-CIO (“MEBA”) is a labor union certified as the exclusive bargaining representative of approximately 200 federal employees located within the Military Sealift Command. Compl. ¶16. Response: It is undisputed that MEBA is a labor organization that represents federal employees. 14. Plaintiff Unions are all “labor organizations” as defined by 5 U.S.C. § 7103(a)(4). Compl. ¶4-16. Response: This paragraph contains a legal conclusion to which no response is required. 46 Case 1:18-cv-01261-KBJ Document 40-2 Filed 07/16/18 Page 49 of 83 15. Defendant Donald J. Trump is the President of the United States of America. Response: Undisputed. 16. Defendant U.S. Office of Personnel Management (“OPM”) is a federal agency charged by Defendant Trump with implementing the Executive Orders pertinent to this matter. See Exec. Orders 13, 186; 13, 837; 13, 839. Response: Undisputed that OPM is a federal agency. The remainder of this paragraph contains a characterization of the Orders, rather than a statement of material fact to which a response is required. Defendants respectfully refer the Court to the Orders for a complete and accurate statement of their contents. 17. Defendant Jeff T.H. Pon is the Director of OPM and therefore has been tasked to implement the Executive Orders. See https://www.opm.gov/about-us/our-people- organization/senior-staff-bios/jeff-pon/. Response: Undisputed that Jeff T.H. Pon is the Director of OPM. The remainder of this paragraph contains a characterization of the Orders, rather than a statement of material fact to which a response is required. Defendants respectfully refer the Court to the Orders for a complete and accurate statement of their contents. 18. On May 25, 2018, Defendant Trump issued three executive orders pertaining to federal workers: (1) Order No. 13,836 regarding collective bargaining; (2) Order No. 13,837 regarding official time; and (3) Order No. 13,839 regarding performance based discipline of federal workers (collectively, the “Executive Orders”). Response: Undisputed. 19. Each of the Executive Orders purports to implement, or direct Defendant the Office of Personnel Management (“OPM”) to issue regulations regarding, the Federal Service 47 Case 1:18-cv-01261-KBJ Document 40-2 Filed 07/16/18 Page 50 of 83 Labor- Management Relations Statute, 5 U.S.C. § 7101, et seq., (the “FSLMR Statute”) and other sections of Title 5 of the U.S. Code governing the working conditions of federal employees. Exec. Order 13,836, 83 Fed. Reg. 25,329 (Jun. 1 2018); Exec. Order 12,837, 83 Fed. Reg. 25,335 (Jun. 1, 2018); and Exec. Order 12,839, 83 Fed. Reg. 25, 25343 (Jun. 1, 2018). Response: This paragraph constitutes a characterization of the Orders, rather than a statement of material fact to which a response is required. Defendants respectfully refer the Court to the text of the Orders for a complete and accurate statement of their contents. 20. The FSLMR Statute governs labor relations in the federal civilian workplace. See for example Bureau of Alcohol, Tobacco, and Firearms v. Federal Labor Relations Authority, 464 U.S. 89, 91 (1983). Response: This paragraph constitutes a characterization of FSLMR Statute, rather than a statement of material fact to which a response is required. Defendants respectfully refer the Court to the text of the statute for a complete and accurate statement of its contents. 21. The FSLMR Statute is a part of the Civil Service Reform Act (“CSRA”). See 5 U.S.C. § 7101, et seq. Response: Undisputed. 22. Prior to this Congressional legislation, labor relations in the federal civilian workplace were governed by a succession of executive orders issued by U.S. Presidents which amended the Lloyd-LaFollete Act, 5 U.S.C. §7501, et seq. (1912). See Exec. Order 10, 988 (Kennedy) and Exec. Order 11, 491 (Nixon). Response: This paragraph contains a characterization of labor relations in the federal civilian workplace, rather than a statement of material fact to which a response is required. Defendants respectfully refer the Court to the cited documents for a complete and accurate 48 Case 1:18-cv-01261-KBJ Document 40-2 Filed 07/16/18 Page 51 of 83 statement of their contents. 23. Congress’s intent in passing the FSLMR Statute was to strengthen and promote collective bargaining in the federal sector, and to guard against the unchecked executive power which had previously governed federal labor-management relations. During debate, Representative William L. Clay of Missouri, Chairman of the Civil Service Subcommittee, stated that “testimony was overwhelmingly in support of the thrust of the committee’s legislation because the existing program was susceptible to the whims of an incumbent President, limited in its scope, management-oriented, and lacking in the opportunity for judicial review of decisions of the Federal Labor Relations Council.” 124 Cong. Rec. 25613 (1978). Response: This paragraph contains a characterization of congressional intent, rather than a statement of material fact to which a response is required. Defendants respectfully refer the Court to the cited document for a complete and accurate statement of its contents. 24. Congress explicitly codified in the FSLMR Statute its finding that labor organizations and collective bargaining are in the public interest. U.S.C. §§ 7101(a); 7131(a). Response: This paragraph contains a characterization of congressional intent, rather than a statement of material fact to which a response is required. Defendants respectfully refer the Court to the statute for a complete and accurate statement of its contents. 25. Congress further created the Federal Labor Relations Authority (the “Authority”) to administer the FSLMR Statute. 5 U.S.C. § 7105(a)(2)(I). Response: This paragraph contains a characterization of congressional intent, rather than a statement of material fact to which a response is required. Defendants respectfully refer the Court to the statute for a complete and accurate statement of its contents. 26. Plaintiff NFFE’s Local 476 (“Local 476”) is the exclusive representative of a 49 Case 1:18-cv-01261-KBJ Document 40-2 Filed 07/16/18 Page 52 of 83 consolidated unit consisting of all professional employees employed by the U.S. Department of the Army, Communications-Electronics Command (CECOM), located in Aberdeen Proving Ground, Maryland. Declaration of Thomas Angioletti [Angioletti Decl.], ¶ 4. Response: This paragraph constitutes a characterization of Local 476. The allegations in this paragraph are immaterial to any issue before the Court because Local 476 is not relevant to the lawfulness of the challenged provisions of the Executive Orders. 27. Local 476 completed negotiations with CECOM for a Memorandum of Agreement to supplement its collective bargaining agreement. Angioletti Decl. ¶ 5. Response: This paragraph constitutes a characterization of Local 476’s negotiations. The allegations in this paragraph are immaterial to any issue before the Court because any negotiations are not relevant to the lawfulness of the challenged provisions of the Executive Orders. 28. Bargaining between Local 476 and CECOM lasted for a period of months and was completed on or about March 8, 2018 when the parties reached agreement and executed the Memorandum of Agreement. Angioletti Decl. ¶ 6. Response: This paragraph constitutes a characterization of Local 476’s negotiations. The allegations in this paragraph are immaterial to any issue before the Court because any negotiations are not relevant to the lawfulness of the challenged provisions of the Executive Orders. 29. The Memorandum of Agreement was submitted to the U.S. Department of Defense (“DOD”) for agency head review. Angioletti Decl. ¶7. Response: This paragraph constitutes a characterization of Local 476’s negotiations. The allegations in this paragraph are immaterial to any issue before the Court because any negotiations are not relevant to the lawfulness of the challenged provisions of the Executive Orders. 30. The Department of Defense, Defense Civilian Personnel Advisory Service 50 Case 1:18-cv-01261-KBJ Document 40-2 Filed 07/16/18 Page 53 of 83 (“DCPAS”) conducts 5 U.S.C. 7114(c) (1) legal sufficiency review of all collective bargaining agreements for the Department of Defense. https://www.cpms.osd.mil/Subpage/LER/LERIndex Response: This paragraph constitutes a characterization of DCPAS. Defendants respectfully refer the Court to the webpage for a complete and accurate statement of its contents. The allegations in this paragraph are immaterial to any issue before the Court because DCPAS procedure is not relevant to the lawfulness of the challenged provisions of the Executive Orders. 31. relationships DCPAS performs this function for approximately 250 collective bargaining covering 450,000 https://apps.opm.gov/flis/index.aspx; represented employees in DOD. www.opm.gov/policy-data-oversight/labor-management- relations/reports-on-official-time/reports/2016-official-time-usage-in-the-federal-government.pdf Response: This paragraph constitutes a characterization of DCPAS. Defendants respectfully refer the Court to the webpage for a complete and accurate statement of its contents. The allegations in this paragraph are immaterial to any issue before the Court because DCPAS procedure is not relevant to the lawfulness of the challenged provisions of the Executive Orders. 32. On June 19, 2018, the agency head review declined to approve various provisions of the Memorandum of Agreement as legally sufficient. The reasons cited were that the agreement did not conform to an existing law, rule, or regulation, citing the Executive Orders. Angioletti Decl. ¶7. Response: This paragraph constitutes a characterization of DCPAS. Defendants respectfully refer the Court to the webpage for a complete and accurate statement of its contents. The allegations in this paragraph are immaterial to any issue before the Court because DCPAS procedure is not relevant to the lawfulness of the challenged provisions of the Executive Orders. 33. The use of official time in the federal sector pre-dates the FSLMR Statute. In 1962, 51 Case 1:18-cv-01261-KBJ Document 40-2 Filed 07/16/18 Page 54 of 83 President John F. Kennedy, through Executive Order 10, 988, first recognized the right of federal employees to engage in collective bargaining and to use official time to represent all members of the bargaining unit – including federal employees who choose not to pay union dues. See Lt. Col. Keith Bullock, OFFICIAL TIME AS A FORM OF UNION SECURITY IN FEDERAL SECTOR LABOR- MANAGEMENT RELATIONS, 59 A.F. L. Rev. 153 (2007). Response: This paragraph constitutes a characterization of the history of federal labor relations, not a statement of material fact to which a response is required. Defendants respectfully refer the Court to the cited article for a true and accurate statement of its contents. 34. Through the FSLMR Statute, Congress legislated that federal agencies must grant official time to employees representing their union in collective bargaining with the agencies. 5 U.S.C. § 7131(a). Response: This paragraph constitutes a characterization of congressional intent, not a statement of material fact to which a response is required. This paragraph also states a legal argument to which no response is required. Defendants respectfully refer the Court to the Statute for a true and accurate statement of its contents. 35. The grant of official time allows the employee representatives to be paid as if they were at work, whenever they bargain during hours when they would otherwise be on duty. Id. Plaintiff NFFE’s Local 1998 (“Local 1998”) is currently in the process of negotiating a collective bargaining agreement with the Passport Services, Bureau of Consular Affairs, Department of State (“Passport Services”). See Declaration of Robert Arnold [Arnold Decl.] ¶ 3-5. Response: The first sentence of this paragraph states a legal argument to which no response is required. Defendants respectfully refer the Court to the Statute for a true and accurate statement of its contents. The second sentence of this paragraph consists of a characterization of Local 52 Case 1:18-cv-01261-KBJ Document 40-2 Filed 07/16/18 Page 55 of 83 1998’s negotiations. This characterization is immaterial to any issue before the Court because any negotiations are not relevant to the lawfulness of the challenged provisions of the Executive Orders. 36. Local 1998 and Passport Services have reached agreement on the majority of collective bargaining agreement articles, and have sought assistance from the Federal Service Impasses Panel on the remainder of the articles which the parties have not yet agreed upon. Arnold Decl. ¶ 6. Response: The allegations in this paragraph consist of a characterization of Local 1998’s agreements. This characterization is immaterial to any issue before the Court because any agreements are not relevant to the lawfulness of the challenged provisions of the Executive Orders. 37. On June 13, 2018 the Chief Labor Negotiator for Passport Services informed Local 1998 that the agency was withdrawing its proposals for articles relating to the subjects covered by the Executive Orders, including official time. Arnold Decl. ¶7. Response: The allegations in this paragraph consist of a characterization of proposals in Local 1998’s negotiations. This characterization is immaterial to any issue before the Court because any proposals are not relevant to the lawfulness of the challenged provisions of the Executive Orders. 38. The cited reason for the change in bargaining position by the agency was the issuance of the Executive Orders. Id. Response: The allegations in this paragraph consist of a characterization of proposals in Local 1998’s negotiations. This characterization is immaterial to any issue before the Court because any proposals are not relevant to the lawfulness of the challenged provisions of the Executive Orders. 53 Case 1:18-cv-01261-KBJ Document 40-2 Filed 07/16/18 Page 56 of 83 39. The agency revised its proposal to, among other things, limit allotment of official time to one hour for each bargaining unit employee represented at the beginning of each fiscal year; prohibit official time for union representatives in excess of 25% of their paid time; prohibit union representatives from using official time to prepare or pursue grievances (including arbitration of grievances) brought against the Employer; and prohibit the granting of a reasonable amount of official time as designated representatives and/or witnesses in MSPB and EEOC proceedings. Arnold Decl. ¶ 9-10. Response: The allegations in this paragraph consist of a characterization of proposals in Local 1998’s negotiations. This characterization is immaterial to any issue before the Court because any proposals are not relevant to the lawfulness of the challenged provisions of the Executive Orders. 40. Currently, the President of Local 1998 is allotted 28 hours a week of official time, and the Vice President of Local 1998 is allotted 16 hours a week. Arnold Decl. ¶ 15. Response: The allegations in this paragraph consist of a characterization of official time allotted to Local 1998. The allegations in this paragraph are immaterial to any issues before this Court because current allotments of official time are not relevant to the lawfulness of the challenged provisions of the Executive Orders. 41. Plaintiff IFPTE affiliate, the Association of Administrative Law Judges (AALJ), is party to a series of collective bargaining agreements with the Social Security Administration (SSA). Declaration of Marilyn Zahm [Zahm Decl.] ¶ 4. Response: The allegations in this paragraph consist of a characterization of AALJ’s CBA’s. The allegations in this paragraph are immaterial to any issues before this Court because current CBA’s are not relevant to the lawfulness of the challenged provisions of the Executive Orders. 54 Case 1:18-cv-01261-KBJ Document 40-2 Filed 07/16/18 Page 57 of 83 42. The current collective bargaining agreement between AALJ and SSA is set to expire on September 30, 2018. Zahm Decl. ¶6. Response: The allegations in this paragraph constitute a characterization of AALJ’s current CBA. The allegations in this paragraph are immaterial to any issues before this Court because the current CBA is not relevant to the lawfulness of the challenged provisions of the Executive Orders. 43. SSA has provided notice to AALJ that it intends to unilaterally revise portions of the collective bargaining agreement to conform with the Executive Orders on July 9, 2018. Zahm Decl. ¶ 6. Response: The allegations in this paragraph constitute a characterization of SSA’s conduct. The allegations in this paragraph are immaterial to any issues before this Court because the SSA’s conduct is not relevant to the lawfulness of the challenged provisions of the Executive Orders. 44. SSA intends to cap official time for all union officials at 1500 hours annually – representing one hour per each bargaining unit employee. Zahm Decl. ¶ 3, 7. Response: The allegations in this paragraph constitute a characterization of SSA’s intent. The allegations in this paragraph are immaterial to any issues before this Court because SSA’s intent is not relevant to the lawfulness of the challenged provisions of the Executive Orders. 45. Federal employees who serve their union as AALJ officials will not have sufficient time to bargain as necessary with the agency, and also represent bargaining unit employees pursuant to the union’s duty of fair representation, if the cap of 1500 hours of official time is imposed upon the collective bargaining agreement. Zahm Decl. ¶8, 9. Response: The allegations in this paragraph constitutes a characterization of alleged future events. The allegations in this paragraph are immaterial to any issues before this Court because future events are not relevant to the lawfulness of the challenged provisions of the Executive 55 Case 1:18-cv-01261-KBJ Document 40-2 Filed 07/16/18 Page 58 of 83 Orders. 46. Plaintiff NAGE affiliate Local R1-240 is a party to a series of collective bargaining agreements with the U.S. Environmental Protection Agency (“EPA”). Declaration of Lesley Judith Mills [Mills Decl.], ¶ 4. Response: The allegations in this paragraph constitute a characterization of RI-240’s CBAs. The allegations in this paragraph are immaterial to any issues before this Court because these CBAs are not relevant to the lawfulness of the challenged provisions of the Executive Orders. 47. On or about April 26, 2018, the EPA notified Local R1-240 that it intended to open the parties’ current collective bargaining agreement for renegotiation. Mills Decl. ¶6. Response: The allegations in this paragraph constitute a characterization of EPA’s conduct. The allegations in this paragraph are immaterial to any issues before this Court because the EPA’s conduct is not relevant to the lawfulness of the challenged provisions of the Executive Orders. 48. On June 8, 2018, the EPA proposed ground rules for collective bargaining negotiations. In the ground rules, the EPA proposed that Local R1-240 would only be allotted 56 hours of leave without pay to prepare for negotiations. Mills Decl. ¶ 6. Response: The allegations in this paragraph constitute a characterization of EPA’s conduct. The allegations in this paragraph are immaterial to any issues before this Court because the EPA’s conduct is not relevant to the lawfulness of the challenged provisions of the Executive Orders. 49. Historically, the EPA allowed official time for contract negotiations. Mills Decl. ¶ 6. Response: The allegations in this paragraph constitute a characterization of EPA’s past conduct. The allegations in this paragraph are immaterial to any issues before this Court because the EPA’s conduct is not relevant to the lawfulness of the challenged provisions of the Executive 56 Case 1:18-cv-01261-KBJ Document 40-2 Filed 07/16/18 Page 59 of 83 Orders. 50. The EPA is proposing to limit official time to one hour per bargaining unit employee per year, and to limit official time and leave without pay time to one union official. Mills Decl. ¶ 6. Response: The allegations in this paragraph constitute a characterization of EPA’s conduct. The allegations in this paragraph are immaterial to any issues before this Court because the EPA’s conduct is not relevant to the lawfulness of the challenged provisions of the Executive Orders. 51. The EPA is proposing that union officials use leave without pay for representational activities required by the union to perform for all represented members, not just bargaining unit employees. Mills Decl. ¶ 6. Response: The allegations in this paragraph constitute a characterization of EPA’s conduct. The allegations in this paragraph are immaterial to any issues before this Court because the EPA’s conduct is not relevant to the lawfulness of the challenged provisions of the Executive Orders. 52. There are approximately 100 collective bargaining agreements currently in effect between Plaintiff NFFE affiliates and federal agencies. See Declaration of Randy Erwin [Erwin Decl.] ¶ 6. Response: The allegations in this paragraph constitute a characterization of agreements between NFFE and federal agencies. The allegations in this paragraph are immaterial to any issues before this Court because NFFE’s current agreements are not relevant to the lawfulness of the challenged provisions of the Executive Orders. 53. Plaintiff NFFE officials meet with members of Congress and their staff members to provide information about working conditions and to discuss potential legislative initiatives to benefit the federal workforce. Erwin Decl. ¶ 7. 57 Case 1:18-cv-01261-KBJ Document 40-2 Filed 07/16/18 Page 60 of 83 Response: The allegations in this paragraph constitute a characterization of NFFE’s conduct. The allegations in this paragraph are immaterial to any issues before this Court because the NFFE’s conduct is not relevant to the lawfulness of the challenged provisions of the Executive Orders. 54. Meetings between union representatives, federal employees, and the members of Congress or their staff typically take place during regular business hours. Erwin Decl. ¶ 7. Response: The allegations in this paragraph constitute a characterization of NFFE’s conduct. The allegations in this paragraph are immaterial to any issues before this Court because NFFE’s conduct is not relevant to the lawfulness of the challenged provisions of the Executive Orders. 55. Each year, for example, Plaintiffs NFFE and the International Association of Machinists and Aerospace Workers organize a lobby week for union representatives and members. Erwin Decl. ¶ 8. Response: The allegations in this paragraph constitute a characterization of NFFE’s conduct. The allegations in this paragraph are immaterial to any issues before this Court because NFFE’s conduct is not relevant to the lawfulness of the challenged provisions of the Executive Orders. 56. During lobby week, union members meet with their Congressional representatives to discuss working conditions such as pay, health benefits, and pension benefits. Erwin Decl. ¶ 8. Response: The allegations in this paragraph constitute a characterization of NFFE’s conduct. The allegations in this paragraph are immaterial to any issues before this Court because NFFE’s conduct is not relevant to the lawfulness of the challenged provisions of the Executive Orders. 58 Case 1:18-cv-01261-KBJ Document 40-2 Filed 07/16/18 Page 61 of 83 57. The topics discussed during lobby week include issues deemed non-negotiable by statute at the bargaining table. Erwin Decl. ¶ 8. Response: The allegations in this paragraph constitute a characterization of discussions during “lobby week.” The allegations in this paragraph are immaterial to any issues before this Court because “lobby week” is not relevant to the lawfulness of the challenged provisions of the Executive Orders. 58. The only redress federal workers have for non-negotiable issues, including their pay and other working conditions, is by lobbying members of Congress. Erwin Decl. ¶ 8. Response: This paragraph contains a legal argument, to which no response is required. 59. Plaintiff NFFE members and representatives meet with members of Congress during normal working hours, often using the official time provisions that the union has negotiated with the agency for such purposes. Erwin Decl. ¶ 8. Response: The allegations in this paragraph constitute a characterization of union members’ conduct. The allegations in this paragraph are immaterial to any issues before this Court because union members’ conduct is not relevant to the lawfulness of the challenged provisions of the Executive Orders. 60. Plaintiff NFFE members have also been called before Congress, while on official time, to present information concerning other conditions of employment – including lay-offs and closures of federal work sites. Erwin Decl. ¶ 8. Response: The allegations in this paragraph constitute a characterization of union members’ conduct. The allegations in this paragraph are immaterial to any issues before this Court because union members’ conduct is not relevant to the lawfulness of the challenged provisions of the Executive Orders. 59 Case 1:18-cv-01261-KBJ Document 40-2 Filed 07/16/18 Page 62 of 83 61. Through the Civil Service Reform Act (“CSRA”) the Congress established processes for evaluating employee performance, including procedures for addressing the performance of an employee that drops below an acceptable level. Therein, Congress directed federal agencies to develop one or more personnel appraisal systems that “(1) provide for periodic appraisals of job performance of employees; (2) encourage employee participation in establishing performance standards; and (3) use the results of performance appraisals as a basis for training, rewarding, reassigning, promoting, reducing in grade, retaining, and removing employees.” 5 U.S.C. § 4302. Response: This paragraph contains a legal argument to which no response is required. Defendants respectfully refer the Court to the Statute for a complete and accurate statement of its contents. 62. Congress further provided in Section 4302 that, “[u]nder regulations which the Office of Personnel Management shall prescribe, each performance appraisal system shall provide for … reassigning, reducing in grade, or removing employees who continue to have unacceptable performance but only after an opportunity to demonstrate acceptable performance.” 5 U.S.C. 4302(c)(6). Response: This paragraph contains a legal argument to which no response is required. Defendants respectfully refer the Court to the Statute for a complete and accurate statement of its contents. 63. The statutorily mandated “opportunity to demonstrate acceptable performance” is commonly known as a “performance improvement period” (PIP). 5 U.S.C. 4302(c)(6), see also https://www.opm.gov/policy-data-oversight/employee-relations/training/Performance-BasedDiscipline.pdf. 60 Case 1:18-cv-01261-KBJ Document 40-2 Filed 07/16/18 Page 63 of 83 Response: This paragraph contains a legal argument to which no response is required. Defendants respectfully refer the Court to the Statute for a complete and accurate statement of its contents. 64. Congress chose not to define the precise length of a PIP in Section 4302(c)(6) or its list of reserved management rights in the Statute. See 5 U.S.C. § 7106. Response: This paragraph contains a legal argument to which no response is required. Defendants respectfully refer the Court to the Statute for a complete and accurate statement of its contents. 65. The Plaintiff Unions and agencies historically have bargained over the appropriate length of a PIP before an employee would being sanctioned for unacceptable performance. 5 U.S.C. §§ 7103(12). Response: This paragraph constitutes a characterization of past bargaining practice. Defendants respectfully refer the Court to the Statute for a complete and accurate statement of its contents. The allegations contained in this paragraph are immaterial to any issues before this Court because past bargaining practice is not relevant to the lawfulness of the challenged provisions of the Executive Orders. 66. For example, NFFE Local 1998 and Passport Services have previously agreed upon PIP lengths of 45-90 days as a term including in their collective bargaining agreement. Arnold Decl. ¶ 5. Response: This paragraph constitutes a characterization of past Local 1998 agreements. The allegations contained in this paragraph are immaterial to any issues before the Court because past agreements are not relevant to the lawfulness of the challenged provisions of the Executive Orders. 61 Case 1:18-cv-01261-KBJ Document 40-2 Filed 07/16/18 Page 64 of 83 67. On June 13, 2018 the Chief Labor Negotiator for Passport Services informed Local 1998 that the agency was withdrawing its proposals for articles relating to the subjects covered by the Executive Orders, including performance removals and the union’s negotiated grievance procedure. Arnold Decl. ¶7. Response: This paragraph constitutes a characterization of Passport Services’ conduct. The allegations contained in this paragraph are immaterial to any issues before the Court because Passport Services’ conduct is not relevant to the lawfulness of the challenged provisions of the Executive Orders. 68. The cited reason for the change in bargaining position by the agency was the issuance of the Executive Orders. Id. Response: This paragraph constitutes a characterization of Passport Services’ conduct. The allegations contained in this paragraph are immaterial to any issues before the Court because Passport Services’ conduct is not relevant to the lawfulness of the challenged provisions of the Executive Orders. 69. The agency revised its proposal to, among other things, strike from the already negotiated article the concept of progressive discipline and use of the factors outlined in Douglas vs. Veterans Administration, 5 M.S.P.R. 280 (1981); striking the Union’s opportunity to serve as an employee’s representative during investigatory interviews or where the employee requests union representation in contravention of 5 U.S.C. §7114; excluding removals from the Union’s negotiated grievance procedure; striking a clause requiring the Agency to expunge from its records any documentation related to a disciplinary action where it is determined that discipline was not warranted or where it was rescinded; and specifying that “the Employer will follow the principles for accountability set forth in and consistent with the May 25, 2018 Executive Order, entitled 62 Case 1:18-cv-01261-KBJ Document 40-2 Filed 07/16/18 Page 65 of 83 Executive Order Promoting Accountability and Streamlining Removal Procedures Consistent with Merit System Principles.” Arnold Decl. ¶ 13. Response: This paragraph constitutes a characterization of Passport Services’ conduct. The allegations contained in this paragraph are immaterial to any issues before the Court because Passport Services’ conduct is not relevant to the lawfulness of the challenged provisions of the Executive Orders. 70. In negotiations with Local R1-240, the EPA cites Exec. Order 13, 836 for its proposals to completely strike out articles on previously negotiable subjects such as employee performance evaluations and merit promotions. Mills Decl. ¶ 6. Response: This paragraph constitutes a characterization of EPA’s conduct. The allegations contained in this paragraph are immaterial to any issues before the Court because EPA’s conduct is not relevant to the lawfulness of the challenged provisions of the Executive Orders. 71. The Memorandum of Agreement ratified by both Local 476 and CECOM was disapproved during agency head review, where the agency head cited Exec. Order 13, 839 in unilaterally striking provisions which were negotiated and agreed to by CECOM regarding performance appraisals. Angioletti Decl. ¶ 8-11. Response: This paragraph constitutes a characterization of CECOM’s conduct. The allegations contained in this paragraph are immaterial to any issues before the Court because CECOM’s conduct is not relevant to the lawfulness of the challenged provisions of the Executive Orders. 72. Plaintiff NAGE affiliate Local R1-240 is a party to a series of collective bargaining agreements with the U.S. Environmental Protection Agency (“EPA”). Declaration of Lesley Judith Mills [Mills Decl.], ¶ 4. 63 Case 1:18-cv-01261-KBJ Document 40-2 Filed 07/16/18 Page 66 of 83 Response: This paragraph constitutes a characterization of RI-240’s CBAs. The allegations contained in this paragraph are immaterial to any issues before the Court because RI240’s CBAs are not relevant to the lawfulness of the challenged provisions of the Executive Orders. 73. The EPA is proposing eliminating union office space and use of equipment for Local R1-240 consistent with the directives of the Executive Orders. Mills Decl. ¶6. Response: This paragraph constitutes a characterization of an EPA proposal. The allegations contained in this paragraph are immaterial to any issues before the Court because EPA proposals are not relevant to the lawfulness of the challenged provisions of the Executive Orders. 74. Passport Services is proposing that NFFE Local 1998 now pay rent on office space and cabinet space; pay for the use of agency email for representational purposes; and pay for the use of agency equipment (such as phones, computers, and office equipment for any type of union business) which had previously been provided to Local 1998 as a term negotiated by the parties into past collective bargaining agreements. Arnold Decl. ¶ 12. Response: This paragraph constitutes a characterization of a Passport Services proposal. The allegations contained in this paragraph are immaterial to any issues before the Court because Passport Services’ proposals are not relevant to the lawfulness of the challenged provisions of the Executive Orders. 75. Passport Services allows non-labor organizations to use agency space and facilities. Arnold Decl. ¶ 17. Response: This paragraph constitutes a characterization of Passport Services’ conduct. The allegations contained in this paragraph are immaterial to any issues before the Court because Passport Services’ conduct is not relevant to the lawfulness of the challenged provisions of the 64 Case Document 40-2 Filed 07/16/18 Page 67 of 83 Executive Orders. 65 Case 1:18-cv-01261-KBJ Document 40-2 Filed 07/16/18 Page 68 of 83 DEFENDANTS’ RESPONSE TO PLAINTIFF AFGE’s STATEMENT 1. Defendant Donald J. Trump signed Executive Order No. 13837, 83 Fed. Reg. 25335, entitled “Ensuring Transparency, Accountability, and Efficiency in Taxpayer-Funded Union Time Use” on May 25, 2018. Response: Undisputed. 2. Executive Order 13837 restricts the use of official time. Executive Order 13837, Sec. 4. Response: This paragraph contains a legal argument to which no response is required. Defendants respectfully refer the Court to the Official Time Order for a complete and accurate statement of its contents. 3. Official time is paid time granted to a federal employee pursuant to section 7131 of the Federal Service Labor Management Relations Statute, 5 U.S.C. 7101 et seq., (“the Statute” or “Chapter 71”) for the purpose of engaging in collective bargaining or providing representation during time the employee would otherwise be in a duty status. Response: This paragraph contains a legal argument to which no response is required. Defendants respectfully refer the Court to the Statute for a complete and accurate statement of its contents. 4. Executive Order 13837 defines “Taxpayer-funded union time” to mean “official time granted to an employee pursuant to section 7131 of title 5, United States Code.” Exec. Order 13837, Sec. 2(i). Response: This paragraph contains a characterization of the Official Time Order, rather than a statement of material fact to which a response is required. Defendants respectfully refer the Court to the Official Time Order for a complete and accurate statement of its contents. 66 Case 1:18-cv-01261-KBJ Document 40-2 Filed 07/16/18 Page 69 of 83 5. Executive Order 13837 defines “Agency business” to mean “work performed by Federal employees, including detailees and assignees, on behalf of an agency, but does not include work performed on taxpayer-funded union time.” Id. Sec. 2(b). Response: This paragraph contains a characterization of the Official Time Order, rather than a statement of material fact to which a response is required. Defendants respectfully refer the Court to the Official Time Order for a complete and accurate statement of its contents. 6. Executive Order 13837 gives the term “Labor organization” the same meaning “given the term in section 7103(a)(4) of title 5, United States Code.” Id. Sec. 2(g). Response: This paragraph contains a characterization of the Official Time Order, rather than a statement of material fact to which a response is required. Defendants respectfully refer the Court to the Official Time Order for a complete and accurate statement of its contents. 7. Executive Order 13837 uses the term “Union time rate” to mean “the total number of duty hours in the fiscal year that employees in a bargaining unit used for taxpayer-funded union time, divided by the number of employees in such bargaining unit.” Id. Sec. 2(j). Response: This paragraph contains a characterization of the Official Time Order, rather than a statement of material fact to which a response is required. Defendants respectfully refer the Court to the Official Time Order for a complete and accurate statement of its contents. 8. The Statute does not contain a “union time rate.” 5 U.S.C. § 7101, et seq. Response: This paragraph contains a characterization of the Statute, rather than a statement of material fact to which a response is required. Defendants respectfully refer the Court to the Statute for a complete and accurate statement of its contents. 9. The Statute does not contain the term “taxpayer funded union time.” 5 U.S.C. § 7101, et seq. 67 Case 1:18-cv-01261-KBJ Document 40-2 Filed 07/16/18 Page 70 of 83 Response: This paragraph contains a characterization of the Statute, rather than a statement of material fact to which a response is required. Defendants respectfully refer the Court to the Statute for a complete and accurate statement of its contents. 10. Executive Order 13837 directs that “[a]greements authorizing taxpayer-funded union time under section 7131(d) of title 5, United States Code, that would cause the union time rate in a bargaining unit to exceed 1 hour should, taking into account the size of the bargaining unit, and the amount of taxpayer-funded union time anticipated to be granted under sections 7131(a) and 7131(c) of title 5, United States Code, ordinarily not be considered reasonable, necessary, and in the public interest, or to satisfy the ‘effective and efficient’ goal set forth in section 1 of this order and section 7101(b) of title 5, United States Code.” Executive Order 13837, Sec. 3(a). Response: This paragraph contains a characterization of the Official Time Order, rather than a statement of material fact to which a response is required. Defendants respectfully refer the Court to the Official Time Order for a complete and accurate statement of its contents. 11. Executive Order 13837 directs that “[e]mployees may not engage in lobbying activities during paid time, except in their official capacities as an employee.” Id. Sec. 4(a)(i). Response: This paragraph contains a characterization of the Official Time Order, rather than a statement of material fact to which a response is required. Defendants respectfully refer the Court to the Official Time Order for a complete and accurate statement of its contents. 12. The Statute does not prohibit employees from engaging in direct lobbying while on official time. 5 U.S.C. § 7102. 68 Case 1:18-cv-01261-KBJ Document 40-2 Filed 07/16/18 Page 71 of 83 Response: This paragraph contains a characterization of the Statute, rather than a statement of material fact to which a response is required. Defendants respectfully refer the Court to the Statute for a complete and accurate statement of its contents. 13. Executive Order 13837 also directs that “employees shall spend at least three- quarters of their paid time, measured each fiscal year, performing agency business or attending necessary training (as required by their agency)[,]” and that “[e]mployees who have spent onequarter of their paid time in any fiscal year on non-agency business may continue to use taxpayerfunded union time in that fiscal year for purposes covered by sections 7131(a) or 7131(c) of title 5, United States Code[,]” but that “any time in excess of one- quarter of an employee’s paid time used to perform non-agency business in a fiscal year shall count toward” the one-quarter limitation “in subsequent fiscal years.” Executive Order 13837, Sec. 4(ii). Response: This paragraph contains a characterization of the Official Time Order, rather than a statement of material fact to which a response is required. Defendants respectfully refer the Court to the Official Time Order for a complete and accurate statement of its contents. 14. Section 4(ii) of Executive Order 13837 sets a numerical cap on the amount of official time that an employee may use in a fiscal year. Id. Response: This paragraph contains a characterization of the Official Time Order, rather than a statement of material fact to which a response is required. Defendants respectfully refer the Court to the Official Time Order for a complete and accurate statement of its contents. 15. The Statute does not set a numerical cap on the amount of official time that an employee may use in a fiscal year. 5 U.S.C. § 7131. 69 Case 1:18-cv-01261-KBJ Document 40-2 Filed 07/16/18 Page 72 of 83 Response: This paragraph contains a characterization of the Statute, rather than a statement of material fact to which a response is required. Defendants respectfully refer the Court to the Statute for a complete and accurate statement of its contents. 16. Executive Order 13837 directs that “[n]o employee, when acting on behalf of a Federal labor organization, may be permitted the free or discounted use of government property or resources if such free or discounted use is not generally available for non-agency business by employees acting on behalf of non-Federal organizations. Such property and resources include office or meeting space, reserved parking spaces, phones, computers, and computer systems.” Executive Order 13837, Sec. 4(iii). Response: This paragraph contains a characterization of the Official Time Order, rather than a statement of material fact to which a response is required. Defendants respectfully refer the Court to the Official Time Order for a complete and accurate statement of its contents. 17. The Statute does not prohibit a labor organization from negotiating with an agency for, or receiving, the use of agency-provided office or meeting space, parking spaces, phones, computers, or computer systems. 5 U.S.C. § 7114(b). Response: This paragraph contains a characterization of the Statute, rather than a statement of material fact to which a response is required. Defendants respectfully refer the Court to the Statute for a complete and accurate statement of its contents.Executive Order 13837 further directs that “[e]mployees may not use taxpayer-funded union time to prepare or pursue grievances (including arbitration of grievances) brought against an agency under procedures negotiated pursuant to section 7121 of title 5, United States Code, except where such use is otherwise authorized by law or regulation.” Executive Order 13837, Sec. 4(a)(v)(1). 70 Case 1:18-cv-01261-KBJ Document 40-2 Filed 07/16/18 Page 73 of 83 Response: This paragraph contains a characterization of the Official Time Order, rather than a statement of material fact to which a response is required. Defendants respectfully refer the Court to the Official Time Order for a complete and accurate statement of its contents. 18. The prohibition in section 4(a)(v)(1) does not apply to “an employee using taxpayer- funded union time to prepare for, confer with an exclusive representative regarding, or present a grievance brought on the employee’s own behalf; or to appear as a witness in any grievance proceeding” nor does the prohibition apply to “an employee using taxpayer-funded union time to challenge an adverse personnel action taken against the employee in retaliation for engaging in activity protected under section 2302(b)(8) of title 5, United States Code, under section 78u-6(h)(1) of title 15, United States Code, under section 3730(h) of title 31, United States Code or under any other similar whistleblower law.” Id. Sec. 4(a)(v)(2)(A) and (2)(B). Response: This paragraph contains a characterization of the Official Time Order, rather than a statement of material fact to which a response is required. Defendants respectfully refer the Court to the Official Time Order for a complete and accurate statement of its contents. 19. Section 4(a)(v) of Executive Order 13837 prohibits an employee from using official time to represent another employee or a group of other employees in a grievance or arbitration under a grievance procedure negotiated pursuant to 5 U.S.C. § 7121. Response: This paragraph contains a characterization of the Official Time Order, rather than a statement of material fact to which a response is required. Defendants respectfully refer the Court to the Official Time Order for a complete and accurate statement of its contents. 20. Section 4(a)(v) of Executive Order 13837 prohibits an employee from using official time to represent a labor organization in a grievance brought on its own behalf under a grievance procedure negotiated pursuant to 5 U.S.C. § 7121. 71 Case 1:18-cv-01261-KBJ Document 40-2 Filed 07/16/18 Page 74 of 83 Response: This paragraph contains a characterization of the Official Time Order, rather than a statement of material fact to which a response is required. Defendants respectfully refer the Court to the Official Time Order for a complete and accurate statement of its contents. 21. The Statute does not contain any of the prohibitions contained in Section 4(a)(v) of Executive Order 13837. 5 U.S.C. § 7131. Response: This paragraph contains a characterization of the Statute, rather than a statement of material fact to which a response is required. Defendants respectfully refer the Court to the Statute for a complete and accurate statement of its contents. 22. Section 4 of Executive Order 13837 “shall become effective 45 days from the date” of the order. Executive Order 13837, Sec. 4(c)(i). Response: This paragraph contains a characterization of the Official Time Order, rather than a statement of material fact to which a response is required. Defendants respectfully refer the Court to the Official Time Order for a complete and accurate statement of its contents. 23. “The Office of Personnel Management (OPM) shall be responsible for administering the requirements” of Section 4 of Executive Order 13837. Id. Response: This paragraph contains a characterization of the Official Time Order, rather than a statement of material fact to which a response is required. Defendants respectfully refer the Court to the Official Time Order for a complete and accurate statement of its contents. 24. Labor organizations and collective bargaining in the civil service are in the public interest. 5 U.S.C. § 7101(a). Response: This paragraph contains a characterization of the Statute, rather than a statement of material fact to which a response is required. Defendants respectfully refer the Court to the Statute for a complete and accurate statement of its contents. 72 Case 1:18-cv-01261-KBJ Document 40-2 Filed 07/16/18 Page 75 of 83 25. 5 U.S.C. § 7131, which is part of Chapter 71, governs official time. Response: This paragraph contains a characterization of the Statute, rather than a statement of material fact to which a response is required. Defendants respectfully refer the Court to the Statute for a complete and accurate statement of its contents. 26. 5 U.S.C. § 7131(d) provides that “any employee representing an exclusive representative,” or “in connection with any other matter covered by this chapter, any employee in an appropriate unit represented by an exclusive representative, shall be granted official time in any amount the agency and the exclusive representative involved agree to be reasonable, necessary, and in the public interest.” Response: This paragraph contains a characterization of the Statute, rather than a statement of material fact to which a response is required. Defendants respectfully refer the Court to the Statute for a complete and accurate statement of its contents. 27. 5 U.S.C. § 7102, also part of Chapter 71, gives each employee the right to “form, join, or assist any labor organization, or to refrain from any such activity, freely and without fear of penalty or reprisal, and each employee shall be protected in the exercise of such right.” Response: This paragraph contains a characterization of the Statute, rather than a statement of material fact to which a response is required. Defendants respectfully refer the Court to the Statute for a complete and accurate statement of its contents. 28. 5 U.S.C. § 7102(1) guarantees the right of an employee “to act for a labor organization in the capacity of a representative and the right, in that capacity, to present the views of the labor organization to heads of agencies and other officials of the executive branch of the Government, the Congress, or other appropriate authorities[.]” 73 Case 1:18-cv-01261-KBJ Document 40-2 Filed 07/16/18 Page 76 of 83 Response: This paragraph contains a characterization of the Statute, rather than a statement of material fact to which a response is required. Defendants respectfully refer the Court to the Statute for a complete and accurate statement of its contents. 29. 5 U.S.C. § 7211 provides that the “right of employees, individually or collectively, to petition Congress or a Member of Congress, or to furnish information to either House of Congress, or to a committee or Member thereof, may not be interfered with or denied.” Response: This paragraph contains a characterization of the Statute, rather than a statement of material fact to which a response is required. Defendants respectfully refer the Court to the Statute for a complete and accurate statement of its contents. 30. 5 U.S.C. § 7114(a)(1) creates a duty of fair representation by requiring an exclusive representative to represent “the interests of all employees in the unit it represents without discrimination and without regard for labor organization membership.” Response: This paragraph contains a characterization of the Statute, rather than a statement of material fact to which a response is required. Defendants respectfully refer the Court to the Statute for a complete and accurate statement of its contents. 31. 5 U.S.C. § 7114(a)(2) requires that an exclusive representative of an appropriate unit in an agency be given a genuine and reasonable opportunity to be present at (A) a formal discussion between any agency representative and one or more bargaining unit employees or their representative concerning, inter alia, any grievance; and (B) any investigative examination of a bargaining unit employee if the employee reasonably believes discipline may result from the interview and the employee requests representation. 74 Case 1:18-cv-01261-KBJ Document 40-2 Filed 07/16/18 Page 77 of 83 Response: This paragraph contains a characterization of the Statute, rather than a statement of material fact to which a response is required. Defendants respectfully refer the Court to the Statute for a complete and accurate statement of its contents. 32. 5 U.S.C. § 7114(b)(1) provides that agencies have a duty to bargain in good faith that includes the obligation to approach negotiations with a sincere resolve to reach agreement. Response: This paragraph contains a characterization of the Statute, rather than a statement of material fact to which a response is required. Defendants respectfully refer the Court to the Statute for a complete and accurate statement of its contents. 33. 5 U.S.C. § 7121(b)(1) requires that any grievance procedure negotiated pursuant to the Statute: “(A) be fair and simple, (B) provide for expeditious processing, and (C) include procedures that – (i) assure an exclusive representative the right, in its own behalf or on behalf of any employee in the unit represented by the exclusive representative, to present and process grievances; (ii) assure such an employee the right to present a grievance on the employee’s own behalf, and assure the exclusive representative the right to be present during the grievance proceeding; and (iii) provide that any grievance not satisfactorily settled under the negotiated grievance procedure be subject to binding arbitration which may be invoked by either the exclusive representative or the agency.” Response: This paragraph contains a characterization of the Statute, rather than a statement of material fact to which a response is required. Defendants respectfully refer the Court to the Statute for a complete and accurate statement of its contents. 34. The American Federation of Government Employees, AFL-CIO, (“AFGE”) is a labor organization as defined by 5 U.S.C. § 7103(a)(4). 75 Case 1:18-cv-01261-KBJ Document 40-2 Filed 07/16/18 Page 78 of 83 Response: It is undisputed that AFGE is a labor organization that represents federal employees. The remainder of allegations in this paragraph constitute a legal argument to which no response is required. 35. AFGE is headquartered at: 80 F Street N.W., Washington, D.C. 20001. Response: Undisputed. 36. AFGE and its affiliated councils and locals are certified as the exclusive representative of the employees that they represent. Declaration of Witold Skwierczynski at ¶¶ 56; Declaration of Holly Salamido at ¶¶ 4-5. Response: It is undisputed that AFGE is a labor organization that represents federal employees. The remainder of allegations in this paragraph constitute a legal argument to which no response is required. 37. AFGE is an exclusive representative of an appropriate unit in an agency. Id. Response: It is undisputed that AFGE is a labor organization that represents federal employees. The remainder of allegations in this paragraph constitute a legal argument to which no response is required. 38. AFGE, on its own and through its affiliated councils and locals, represents employees within bargaining units for which AFGE and its councils and locals have been certified as the exclusive representative by, inter alia, negotiating collective bargaining agreements, arbitrating grievances brought pursuant to applicable negotiated grievance procedures, representing employees in formal discussions or investigative examinations pursuant to 5 U.S.C. § 7114(a)(2), litigating employees’ collective and individual rights before administrative agencies and in court, and generally acting as federal civilian employees’ exclusive representative for the purpose of collective bargaining with the federal government. Skwierczynski Decl. at ¶¶ 13-14; 76 Case 1:18-cv-01261-KBJ Document 40-2 Filed 07/16/18 Page 79 of 83 Salamido Decl. at ¶¶ 9-10; Declaration of David I. Cann at ¶¶ 6-7; Declaration of Richard Couture at ¶¶ 10-11. Response: This paragraph constitutes a characterization of AFGE’s functions, rather than a material fact to which a response is required. The allegations in this paragraph are further immaterial to any issue before this Court because AFGE’s functions are not relevant to the lawfulness of the challenged provisions of the Executive Orders. 39. AFGE, on its own and by and through its members and officers, is presently engaged in collective bargaining with agencies of the federal government. Skwierczynski Decl. at ¶ 18; Salamido Decl. at ¶¶ 8, 16-21; Couture Decl. at ¶ 14; Cann Decl. at ¶ 11. Response: This paragraph constitutes a characterization of AFGE’s ongoing bargaining. The allegations in this paragraph are further immaterial to any issue before this Court because AFGE’s ongoing bargaining is not relevant to the lawfulness of the challenged provisions of the Executive Orders. 40. These members and officers, and other AFGE representatives, use official time to engage in collective bargaining. Skwierczynski Decl. at ¶¶ 10, 29-31; Salamido Decl. at ¶ 9; Couture Decl. at ¶¶ 9-10; Cann Decl. at ¶¶ 5. Response: This paragraph constitutes a characterization of AFGE’s ongoing bargaining. The allegations in this paragraph are further immaterial to any issue before this Court because AFGE’s ongoing bargaining is not relevant to the lawfulness of the challenged provisions of the Executive Orders. 41. AFGE, on its own and by and through its members and officers, represents federal employees in grievances brought pursuant to negotiated grievance procedures. These members and 77 Case 1:18-cv-01261-KBJ Document 40-2 Filed 07/16/18 Page 80 of 83 officers, and other AFGE representatives, use official time for this purpose. Skwierczynski Decl. at ¶¶ 27-28. Response: This paragraph constitutes a characterization of AFGE’s activities. The allegations in this paragraph are further immaterial to any issue before this Court because AFGE’s activities are not relevant to the lawfulness of the challenged provisions of the Executive Orders. 42. AFGE, and its members and officers, both publicly and privately engage in multiple forms of expression, such as promoting unity of action in matters affecting the mutual interest of federal employees, promoting organized labor, and advocating for workers’ rights and for the improvement of government service. Skwierczynski Decl. at ¶ 7; Couture Decl. at ¶ 7. Response: This paragraph constitutes a characterization of AFGE’s activities. The allegations in this paragraph are further immaterial to any issue before this Court because AFGE’s activities are not relevant to the lawfulness of the challenged provisions of the Executive Orders. 43. AFGE is a party to collective bargaining agreements that allow AFGE representatives to directly lobby Congress while on official time. Cann Decl. at ¶¶ 8-9. Response: This paragraph constitutes a characterization of current AFGE CBAs. The allegations contained in this paragraph are immaterial to any legal issues before this Court because current CBAs are not relevant to the lawfulness of the challenged provisions of the Executive Orders. 44. The federal sector is an open shop. 5 U.S.C. § 7102. Response: This paragraph consists of legal argument to which no response is required. Defendants respectfully refer the Court to the Statute for a complete and accurate statement of its contents. 78 Case 1:18-cv-01261-KBJ Document 40-2 Filed 07/16/18 Page 81 of 83 45. AFGE has a statutory duty of fair representation to its bargaining unit employees in the negotiated grievance and collective bargaining processes. 5 U.S.C. § 7114(a). Response: This paragraph consists of legal argument to which no response is required. Defendants respectfully refer the Court to the Statute for a complete and accurate statement of its contents. 46. AFGE, by and through its councils and locals, uses official time to meet this duty of fair representation. Skwierczynski Decl. at ¶¶ 15, 27, 29-31; Salamido Decl. at ¶¶ 9-10; Couture Decl. at ¶¶ 10-11. Response: This paragraph consists of legal argument to which no response is required. 47. AFGE, by and through its councils, locals, and representatives, also uses government property and government resources, such as agency email systems and offices, at no added cost, in the course of providing representation for bargaining unit employees, bargaining collectively with agencies, and communicating with agency personnel in order to fulfill their mutual obligations under Chapter 71. Skwierczynski Decl. at ¶ 16; Salamido Decl. at ¶¶ 14-15; Couture Decl. at ¶¶ 12-13. Response: This paragraph consists of legal argument to which no response is required. 48. The use of government property or resources, such as agency email systems and offices, is a negotiable subject of collective bargaining that AFGE bargains. Salamido Decl. at ¶¶ 13-14; Couture Decl. at ¶¶ 12, 18. Response: This paragraph consists of legal argument to which no response is required. 49. Agencies are implementing Executive Order 13837 vis-a-vis AFGE. Skwierczynski Decl. at ¶¶ 22-23, 25-26; Salamido Decl. at ¶¶ 17, 19, 21; Couture Decl. at ¶¶1516. 79 Case 1:18-cv-01261-KBJ Document 40-2 Filed 07/16/18 Page 82 of 83 Response: This paragraph constitutes a characterization of current agency action. The allegations in this paragraph are immaterial to any issues before this Court because agency action is not relevant to the lawfulness of the challenged provisions of the Executive Orders. 50. Executive Order 13837 negatively impacts AFGE by preventing AFGE representatives from engaging in direct lobbying while on official time, which is allowed by AFGE contracts. Cann Decl. at ¶¶ 8-9. Response: This paragraph contains a legal argument to which no response is required. Defendants respectfully refer the Court to the Official Time Order for a complete and accurate statement of its contents. 51. Executive Order 13837 adversely affects AFGE by reducing the amount of official time available for AFGE representatives to represent other bargaining unit members or the Union on its own behalf in grievance proceedings, including in arbitration. Skwierczynski Decl. at ¶¶ 24, 28, 32-38; Couture Decl. at ¶ 20. Response: This paragraph contains a legal argument to which no response is required. Defendants respectfully refer the Court to the Official Time Order for a complete and accurate statement of its contents. 52. Executive Order 13837 adversely affects AFGE by prohibiting AFGE’s use of no- cost office space and supplies, which AFGE uses to fulfill its representational obligations under the Statute. Skwierczynski Decl. at ¶ 34; Salamido Decl. at ¶¶ 19, 22-23; Couture Decl. at ¶ 1617, 19. Response: This paragraph contains a legal argument to which no response is required. Defendants respectfully refer the Court to the Official Time Order for a complete and accurate statement of its contents. 80 Case 1:18-cv-01261-KBJ Document 40-2 Filed 07/16/18 Page 83 of 83 53. Executive Order 13837 also adversely affects AFGE by prohibiting AFGE’s use of no- cost office space and supplies presently allowed by existing collective bargaining agreements. Skwierczynski Decl. at ¶ 16 ; Salamido Decl. at ¶¶ 13, 19, 22-23; Couture Decl. at ¶¶ 12, 16-17. Response: This paragraph contains a legal argument to which no response is required. Defendants respectfully refer the Court to the Official Time Order for a complete and accurate statement of its contents. Dated: July 16, 2018 Respectfully submitted, CHAD A. READLER Acting Assistant Attorney General JENNIFER D. RICKETTS Director, Federal Programs Branch CHRISTOPHER HALL Assistant Branch Director /s/ Rachael Westmoreland RACHAEL WESTMORELAND (GA Bar #539498) M. ANDREW ZEE (CA Bar #272510) Trial Attorneys United States Department of Justice Civil Division, Federal Programs Branch 20 Massachusetts Ave., N.W. Washington, DC 20530 Tel.: (202) 514-1280 Fax: (202) 616-8460 Email: rachael.westmoreland@usdoj.gov Counsel for Defendants 81 Case 1:18-cv-01261-KBJ Document 40-3 Filed 07/16/18 Page 1 of 2 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, AFLCIO, Plaintiff, Consolidated Case No. 1:18-cv-01261KBJ v. DONALD J. TRUMP, et al., Defendants. NATIONAL FEDERATION OF FEDERAL EMPLOYEES, FD-1, IAMAW, AFL-CIO, et al., Plaintiffs, v. DONALD J. TRUMP, et al., Defendants. AMERICAN FEDERATION OF STATE, COUNTY AND MUNICIPAL EMPLOYEES, AFLCIO, et al., Plaintiffs, v. DONALD J. TRUMP, et al., Defendants. [PROPOSED] ORDER GRANTING DEFENDANTS’ CROSS-MOTION FOR SUMMARY JUDGMENT Case 1:18-cv-01261-KBJ Document 40-3 Filed 07/16/18 Page 2 of 2 NATIONAL TREASURY EMPLOYEES UNION, Plaintiff, v. DONALD J. TRUMP, et al., Defendants. Defendants, Donald J. Trump, sued solely in his official capacity as President of the United States; the U.S. Office of Personnel Management; and Jeff T.H. Pon, sued solely in his official capacity as Director of the U.S. Office of Personnel Management, have moved for summary judgment on all claims asserted by Plaintiffs in these consolidated cases. Upon consideration of Defendants’ Cross-Motion for Summary Judgment, the pleadings on file, and oral argument of counsel, and good cause appearing: IT IS HEREBY ORDERED THAT Defendants’ Motion is GRANTED; that summary judgment shall be entered for Defendants; and that Plaintiffs’ Complaint is DISMISSED WITH PREJUDICE. IT IS SO ORDERED. Dated: , 2018. HON. KETANJI BROWN JACKSON United States District Court Judge 2