Lawsuit challenging President Trump civil service executive orders (2018)

Administrative State
Five Pillars of the Administrative State
• Nondelegation • Judicial deference • Executive control • Procedural rights • Agency dynamics
Click here for more coverage of the administrative state on Ballotpedia

Legal challenges to President Trump's civil service executive orders (2018-2019)

See also: Civil Service Reform Act, E.O. 13836, E.O. 13837, and E.O. 13839

The following timeline identifies key events in a 2018-2019 lawsuit, American Federation of Government Employees, AFL-CIO, et. al. v. Trump, brought by a group of federal employee unions against President Donald Trump's (R) three civil service executive orders issued in May 2018: Executive Order 13837, Executive Order 13836, and Executive Order 13839.

October 2019: Injunction expires, agencies allowed to implement executive orders

The injunction blocking provisions of President Trump's three civil service executive orders expired on October 2, 2019. The United States Court of Appeals for the District of Columbia Circuit on October 3 issued a mandate to implement its July 16 decision vacating the district court ruling and allowing federal agencies to fully implement the orders.^[1][2]

September 2019: D.C. Circuit declines rehearing request

The United States Court of Appeals for the District of Columbia Circuit issued an order on September 25, 2019, declining to rehear American Federation of Government Employees, AFL-CIO, et. al. v. Trump before the full court. The order did not provide a reason for the decision.^[3]

August 2019: Unions file for rehearing en banc before full D.C. Circuit

Federal employee unions challenging Trump's three civil service executive orders filed a petition on August 30, 2019, requesting a rehearing of American Federation of Government Employees, AFL-CIO, et. al. v. Trump before the full United States Court of Appeals for the District of Columbia Circuit. A three-judge panel of the D.C. Circuit held in July that the court did not have jurisdiction to rule on the case because the Federal Service Labor-Management Relations Statute requires labor practice complaints to be brought before the Federal Labor Relations Authority (FLRA).^[4]

August 2019: SEIU files new lawsuit claiming civil service executive orders exceed president's constitutional authority

A chapter of the Service Employees International Union (SEIU) representing U.S. Department of Veterans Affairs employees in Buffalo, New York, filed a lawsuit in the United States District Court for the Western District of New York on August 13, 2019, arguing that President Trump's three civil service executive orders exceeded the president's constitutional authority and violated the Civil Service Reform Act. The union claimed that the district court had jurisdiction over the case in part because the FLRA had lacked a general counsel for almost two years—preventing the agency from hearing unfair labor practice complaints.^[5]

Because the United States Court of Appeals for the 2nd Circuit has appellate jurisdiction over the United States District Court for the Western District of New York, the D.C. Circuit's July 2019 decision upholding the civil service executive orders was not controlling on the case.^[5]

July 2019: D.C. Circuit panel reverses district court ruling, holds district court lacked jurisdiction to issue injunction

A three-judge panel of the United States Court of Appeals for the District of Columbia Circuit on July 16, 2019, reversed and vacated the district court ruling. Judges Thomas Griffith, Srikanth Srinivasan, and Arthur Randolph held that the district court did not have jurisdiction to rule on the merits of the executive orders and that the plaintiffs should have brought the case before the FLRA as required by the Federal Service Labor-Management Relations Statute.^[6][7]

Trump administration officials on July 23, 2019, asked the D.C. Circuit to immediately lift the injunction blocking enforcement of the three civil service executive orders rather than wait for the 45-day grace period for rehearing requests to expire. The court denied the administration's request on August 14, 2019.^[8][9]

April 2019: D.C. Circuit hears oral arguments in appeal, DOJ claims district court lacked jurisdiction in case

The United States Court of Appeals for the District of Columbia Circuit heard oral arguments in the appeal on April 4, 2019. An attorney for the U.S. Department of Justice (DOJ) argued that the federal courts lacked jurisdiction in the case and that the plaintiffs should have filed an unfair labor practices complaint with the Federal Labor Relations Authority (FLRA) instead. An attorney representing the union groups countered that the FLRA lacked the authority to weigh in on governmentwide rules that are not subject to collective bargaining negotiations.^[10][11]

November 2018: OPM instructs agencies to comply with effective executive order provisions

The Office of Personnel Management (OPM) released a memo in November 2018 instructing federal agencies to comply with the provisions of the civil service executive orders that remained in effect, including guidelines related to employee discipline and the use of official union time.^[12]

September 2018: DOJ appeals district court ruling

The DOJ appealed the district court's ruling on September 25, 2018. The notice of appeal was filed with the United States Court of Appeals for the District of Columbia Circuit. Oral argument in the case was scheduled for April 4, 2019.^[13][14]

August 2018: District court ruling strikes provisions of executive orders, cites conflict with federal statute

Judge Ketanji Brown Jackson of the United States District Court for the District of Columbia struck down several provisions of President Trump's civil service executive orders in a ruling issued on August 25, 2018. The stricken provisions included components of the executive orders that Brown Jackson claimed conflicted with federal statute, such as limitations on the amount of taxpayer-funded time that full-time federal employees can dedicate to union activities, a reduction in the amount of time that poor-performing employees can demonstrate improvement, and certain restrictions on workplace issues that federal agencies can negotiate with unions.^[15][16]

A DOJ representative responded to the ruling on August 25, stating that the DOJ was "reviewing the decision and considering our next steps." Then-OPM Director Jeff Pon issued a memo to all federal agencies on August 29 stating that the OPM would comply with Jackson's order and encouraging compliance by other agencies. The OPM also rescinded agency guidance related to the blocked provisions of the executive orders.^[15][17]

May 2018: Unions file suit against civil service executive orders, claim orders are unconstitutional and violate federal statute

The American Federation of Government Employees (AFGE) filed a lawsuit challenging the constitutionality of Executive Order 13837 on May 30, 2018. The lawsuit claimed that the order violates freedom of association protections under the First Amendment and alters sections of the Federal Service Labor-Management Relations Statute—Title VII of the Civil Service Reform Act of 1978—without congressional action.^[18][19][20]

Brown Jackson consolidated AFGE's lawsuit with two other lawsuits challenging Trump's civil service executive orders (E.O. 13837, E.O. 13836, and E.O. 13839) filed by the National Treasury Employees Union and a coalition of 13 smaller public sector unions. A hearing in the case took place on July 25, 2018.^[21]

See also

• Administrative state

External links

• Search Google News for this topic

Footnotes

v • e The Administrative State Main The Administrative State Project main page • Administrative State Project Index • Glossary of administrative state terms • Quotes about the administrative state • Administrative state • Rulemaking • Deference • Adjudication • Nondelegation doctrine Reporting Changes to the Federal Register • Completed OIRA review of federal administrative agency rules • Federal agency rules repealed under the Congressional Review Act • Historical additions to the Federal Register, 1936-2016 • Pages added monthly to the Federal Register, 1995-2017 Laws Administrative Procedure Act • Antiquities Act • Civil Service Reform Act • Clayton Antitrust Act • Communications Act of 1934 • Congressional Review Act • Electronic Freedom of Information Act • Federal Food, Drug, and Cosmetic Act of 1938 • Federal Housekeeping Statute • Federal Reserve Act • Federal Trade Commission Act of 1914 • Freedom of Information Act • Government in the Sunshine Act • Independent Offices Appropriations Act of 1952 • Information Quality Act • Interstate Commerce Act • National Labor Relations Act • Paperwork Reduction Act • Pendleton Act • Privacy Act of 1974 • Regulatory Flexibility Act • REINS Act • REINS Act (Wisconsin) • Securities Act of 1933 • Securities Exchange Act of 1934 • Sherman Antitrust Act • Small Business Regulatory Enforcement Fairness Act • Truth in Regulating Act • Unfunded Mandates Reform Act Cases Abbott Laboratories v. Gardner • A.L.A. Schechter Poultry Corp. v. United States • Association of Data Processing Service Organizations v. Camp • Auer v. Robbins • Chevron v. Natural Resources Defense Council • Citizens to Preserve Overton Park v. Volpe • Federal Trade Commission (FTC) v. Standard Oil Company of California • Field v. Clark • Food and Drug Administration v. Brown and Williamson Tobacco Corporation • Humphrey's Executor v. United States • Immigration and Naturalization Service (INS) v. Chadha • J.W. Hampton Jr. & Company v. United States • Lucia v. SEC • Marshall v. Barlow's • Massachusetts v. Environmental Protection Agency • Mistretta v. United States • National Federation of Independent Business (NFIB) v. Sebelius • National Labor Relations Board v. Noel Canning Company • National Labor Relations Board v. Sears, Roebuck & Co. • Panama Refining Co. v. Ryan • Securities and Exchange Commission v. Chenery Corporation • Skidmore v. Swift & Co. • United States v. Lopez • United States v. Western Pacific Railroad Co. • Universal Camera Corporation v. National Labor Relations Board • Vermont Yankee Nuclear Power Corp. v. Natural Resources Defense Council • Wayman v. Southard • Weyerhaeuser Company v. United States Fish and Wildlife Service • Whitman v. American Trucking Associations • Wickard v. Filburn • Wiener v. United States Terms Adjudication (administrative state) • Administrative judge • Administrative law • Administrative law judge • Administrative state • Arbitrary-or-capricious test • Auer deference • Barrier to entry • Bootleggers and Baptists • Chevron deference (doctrine) • Civil servant • Civil service • Code of Federal Regulations • Codify (administrative state) • Comment period • Compliance costs • Congressional Record • Coordination (administrative state) • Deference (administrative state) • Direct and indirect costs (administrative state) • Enabling statute • Ex parte communication (administrative state) • Executive agency • Federal law • Federal Register • Federalism • Final rule • Formal rulemaking • Formalism (law) • Functionalism (law) • Guidance (administrative state) • Hybrid rulemaking • Incorporation by reference • Independent federal agency • Informal rulemaking • Joint resolution of disapproval (administrative state) • Major rule • Negotiated rulemaking • Nondelegation doctrine • OIRA prompt letter • Organic statute • Pragmatism (law) • Precautionary principle • Promulgate • Proposed rule • Publication rulemaking • Regulatory budget • Regulatory capture • Regulatory dark matter • Regulatory impact analysis • Regulatory policy officer • Regulatory reform officer • Regulatory review • Rent seeking • Retrospective regulatory review • Risk assessment (administrative state) • Rulemaking • Separation of powers • Significant regulatory action • Skidmore deference • Statutory authority • Substantive law and procedural law • Sue and settle • Sunset provision • Unified Agenda of Federal Regulatory and Deregulatory Actions • United States Code • United States Statutes at Large Bibliography "Administrative Law - The 20th Century Bequeaths an 'Illegitimate Exotic' in Full and Terrifying Flower" by Stephen P. Dresch (2000) "Confronting the Administrative Threat" by Philip Hamburger and Tony Mills (2017) "Constitutionalism after the New Deal" by Cass R. Sunstein (1987) Federalist No. 23 by Alexander Hamilton (1787) "From Administrative State to Constitutional Government" by Joseph Postell (2012) "Interring the Nondelegation Doctrine" by Eric A. Posner and Adrian Vermeule (2002) "Rulemaking as Legislating" by Kathryn Watts (2015) "The Checks & Balances of the Regulatory State" by Paul R. Verkuil (2016) "The Myth of the Nondelegation Doctrine" by Keith E. Whittington and Jason Iuliano (2017) "The Progressive Origins of the Administrative State: Wilson, Goodnow, and Landis" by Ronald J. Pestritto (2007) "The Rise and Rise of the Administrative State" by Gary Lawson (1994) "The Study of Administration" by Woodrow Wilson (1887) "The Threat to Liberty" by Steven F. Hayward (2017) "Why the Modern Administrative State Is Inconsistent with the Rule of Law" by Richard A. Epstein (2008) Agencies Administrative Conference of the United States • United States Civil Service Commission • U.S. Government Accountability Office • U.S. Office of Information and Regulatory Affairs • U.S. Office of Management and Budget