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American Federation of Government Employees, Afl-Cio v. Trump
Citation: Not availableDocket: Civil Action No. 2018-1261
Court: District Court, District of Columbia; August 25, 2018; Federal District Court
Original Court Document: View Document
The document is a memorandum opinion from the United States District Court for the District of Columbia involving multiple plaintiffs, including various labor unions, against Donald J. Trump and others. The key points are as follows: 1. **Jurisdiction**: The court determines it has subject-matter jurisdiction because Congress did not intend for the Federal Service Labor-Management Relations Statute (FSLMRS) or the Civil Service Reform Act (CSRA) to exclusively resolve the unions' claims. 2. **Historical Context**: The memorandum provides an overview of federal employee management and the relevant statutory provisions, emphasizing the structure and purpose of the FSLMRS and the role of the Federal Labor Relations Authority (FLRA). 3. **Challenged Executive Orders**: The plaintiffs challenge several executive orders issued by the President, which affect collective bargaining procedures, official time for union activities, and removal procedures for federal employees. 4. **Legal Standards**: The court outlines relevant legal standards that govern the case. 5. **Analysis of Executive Orders**: - The President retains the authority to issue executive orders affecting federal labor-management relations, provided they do not conflict with congressional intent. - The court finds that many provisions in the challenged executive orders infringe upon the statutory right to bargain collectively, as defined in Section 7103(a) and related case law. 6. **Impact on Collective Bargaining**: Specific provisions of the executive orders significantly limit the scope of negotiations, removing critical topics from bargaining despite them being negotiable under existing law. This undermines good faith negotiations and restricts the unions' rights. 7. **Defendants' Arguments**: The court rejects the defendants' counterarguments, deeming them meritless, particularly regarding claims of 'no conflict' with existing statutory provisions. 8. **Legitimate Authority**: Some provisions of the executive orders are acknowledged as legitimate exercises of presidential authority. In conclusion, the court highlights that significant parts of the executive orders challenged by the unions violate statutory rights to collective bargaining, while affirming the President's authority in this area as long as it aligns with congressional intent. The United States Constitution delineates the powers of the federal government into three branches: legislative, executive, and judiciary, each with specific responsibilities to avoid the concentration of power that threatens liberty. The judiciary's role is to interpret laws and ensure that the other branches do not overstep their authority. This principle underpins the current case, which addresses the judiciary's power to adjudicate federal labor-management relations, the president's authority to issue executive orders affecting federal employee collective bargaining, and Congress's role in establishing collective bargaining rights. On May 25, 2018, President Trump issued three executive orders that aimed to regulate the conduct of federal employees in collective bargaining contexts, including limiting union activities and influencing negotiation strategies. Following the issuance of these orders, multiple federal employee unions filed consolidated lawsuits against Trump, the U.S. Office of Personnel Management (OPM), and its Director, challenging the legality of the orders. The lead plaintiffs include prominent unions such as the American Federation of Government Employees (AFGE) and the National Treasury Employees Union (NTEU), among others. The Federal Service Labor-Management Relations Statute (FSLMRS), 5 U.S.C. 7101–7135, is central to claims that certain executive orders issued by the President are unconstitutional and infringe on the collective bargaining rights of federal employees. Union plaintiffs argued initially for a preliminary injunction, citing significant violations of presidential power and immediate harm to their rights. However, the parties opted to move directly to the merits of the dispute via cross-motions for summary judgment, which the Court has expedited. Currently before the Court are the parties' cross-motions, following a hearing on July 25, 2018, where the Court addressed complex legal issues raised. The unions challenge twenty specific provisions within the Orders, collectively arguing that the President lacks the authority to issue such executive orders in federal labor relations, that these provisions violate the FSLMRS, and that some infringe on the Take Care Clause and First Amendment rights. Defendants counter that the Court lacks subject-matter jurisdiction due to the FSLMRS's administrative review framework and that some union claims lack sufficient concreteness. On the merits, they assert that the President has the authority to issue these orders and that the provisions do not conflict with the FSLMRS, arguing they serve merely as guidance or are authorized as government-wide regulations. They also contend that the Take Care Clause claim is nonjusticiable and the First Amendment claim is unfounded. The Court determined it has subject-matter jurisdiction, distinguishing this case from those intended to be resolved through the FSLMRS's administrative channels. It found that the unions' claims are ripe for judicial resolution. Ultimately, while acknowledging the President's authority to issue executive orders affecting federal labor relations, the Court emphasized that such orders cannot undermine the collective bargaining rights protected by the FSLMRS. The Court determines that the executive orders in question undermine the federal employees' right to good-faith collective bargaining as guaranteed by the Federal Service Labor-Management Relations Statute (FSLMRS). Congress intended for collective bargaining to protect public interests and facilitate dispute resolution regarding federal employment conditions. The executive orders reflect a policy that prioritizes the President's view that such bargaining rights are not conducive to an effective government, instead favoring agency interests in developing cost-effective collective bargaining agreements. Specific provisions of the orders restrict negotiations by limiting the terms agencies can address and constraining agency negotiators, thus impeding the ability to negotiate in good faith. The Court finds these provisions conflict with congressional intent and cannot be justified, leading to the decision to grant in part and deny in part both parties' motions for summary judgment. The Court will enjoin the enforcement of specific sections of the executive orders that infringe upon the bargaining rights of federal employees. Additionally, the Court notes the historical tension between broad executive authority in public employment and the rights of federal employees, emphasizing the need for a balance that respects both efficient governance and employee rights. Two contrasting perspectives regarding presidential power in managing civil service appointments are highlighted. The first perspective supports broad executive authority, asserting that it enables the President to align federal bureaucrats with the political agenda that facilitated their election. Conversely, the second perspective raises concerns about unchecked executive discretion to hire and fire civil servants, which could undermine public administration integrity and allow for arbitrary dismissals based on differing political views or whistleblowing. This view posits that public employees possess a 'property interest' in their positions, emphasizing the detrimental effects abrupt terminations could have on both government functionality and individual employment prospects. Consequently, it advocates for significant limitations on presidential employment decisions concerning non-political civil service workers. Historically, these views have fluctuated in prominence, with early presidents enjoying expansive hiring powers, often leading to purges of civil service positions. However, this practice diminished in the mid-20th century when Presidents Kennedy and Nixon implemented executive orders to enhance job security for civil servants and recognized collective bargaining rights for federal employees. In the 1970s, following concerns about government efficiency post-Watergate, the Civil Service Reform Act of 1978 was enacted to address perceived excess protections for federal employees, modifying the balance of power in federal employment practices. The legislation aims to codify various executive orders and rules governing the relationship between the federal government and its civil service employees, leading to a comprehensive overhaul of the civil service system through the Civil Service Reform Act (CSRA). The CSRA replaced a disjointed framework of laws with a structured system for evaluating adverse personnel actions, intending to balance the interests of federal employees with effective administration. It offers protections against numerous personnel practices and establishes causes of action and remedies for violations. The Federal Service Labor-Management Relations Statute (FSLMRS), which is Title VII of the CSRA, exclusively addresses collective bargaining and labor relations between federal agencies and their employees. The FSLMRS emphasizes the importance of labor unions and collective bargaining in safeguarding public interests, enhancing government operations, and fostering dispute resolution. Key provisions include affirming employee rights to unionize and bargain collectively, defining negotiable matters, and creating mechanisms for resolving disputes during collective bargaining. The arguments presented in the parties' cross-motions for summary judgment primarily relate to specific FSLMRS provisions and additional statutes within the CSRA and the United States Code. The Federal Service Labor-Management Relations Statute (FSLMRS) enshrines the rights of federal employees to join labor unions for the purpose of addressing labor issues with the government. Labor unions are described as representatives for federal employees, engaging in collective bargaining regarding employment conditions. "Collective bargaining" is defined as the mutual obligation of agencies and unions to meet and negotiate in good faith about employment conditions. "Conditions of employment" include personnel policies and practices affecting working conditions. The FSLMRS mandates good-faith negotiations, requiring both parties to approach discussions with an open mind aimed at reaching an agreement. It delineates a three-tier system for negotiability in collective bargaining. First, there is a presumption that agencies and unions must negotiate mandatory matters related to workplace conditions, including grievance procedures and official time for union activities. Second, a limited set of "permissive" matters may be negotiated at the agency's discretion, such as employee positions and work methods. Lastly, the FSLMRS prohibits negotiations concerning management rights or matters governed by overarching government regulations. Bargaining rights conferred by the Federal Service Labor-Management Relations Statute (FSLMRS) do not infringe upon federal agencies' authority to manage their missions, budgets, organizations, and employee-related decisions, as specified in 5 U.S.C. 7106(a). Agencies are also exempt from negotiating over matters governed by government-wide rules or regulations, even if those rules do not apply to a significant portion of the federal workforce (5 U.S.C. 7117(a)(1)). The FSLMRS prohibits unfair labor practices by both labor unions and federal agencies, such as interference with employee rights or failure to negotiate in good faith (5 U.S.C. 7116). It includes mechanisms for resolving negotiation impasses and determining the negotiability of union proposals (5 U.S.C. 7119, 7117(c)). To implement these provisions, Congress established the Federal Labor Relations Authority (FLRA), a bipartisan agency with three presidentially appointed members, ensuring no more than two belong to the same political party (5 U.S.C. 7104). The FLRA is responsible for leading policy establishment, promulgating regulations, resolving bargaining issues, addressing unfair labor practice complaints, and handling employee grievances under collective agreements (5 U.S.C. 7105). The FLRA has the authority to conduct hearings, mandate compliance, and take appropriate remedial actions (5 U.S.C. 7105(g)). However, its decisions can be contested in federal courts of appeals, with specific exceptions noted (5 U.S.C. 7123(a)). When an appeal is filed concerning a decision made by the Federal Labor Relations Authority (FLRA), the court of appeals has jurisdiction to affirm, modify, or set aside the FLRA's order, as stated in 5 U.S.C. § 7123(c). The FLRA is granted Chevron deference in interpreting ambiguous provisions of the Federal Service Labor-Management Relations Statute (FSLMRS) due to its expertise and the significant role assigned to it by Congress. The excerpt also references the Merit Systems Protection Board (MSPB), created under the Civil Service Reform Act (CSRA), which adjudicates employee grievances related to adverse personnel actions, including removal for unacceptable performance and actions based on misconduct, with decisions typically reviewable in the Federal Circuit. Additionally, 5 U.S.C. § 3301 grants the President authority to regulate civil service admission to promote efficiency, including assessing applicants' fitness in various areas. Section 7301 also allows the President to set conduct regulations for executive branch employees. The CSRA clarifies that its provisions do not limit the President's pre-existing functions or authority. On May 25, 2018, President Donald J. Trump issued three Executive Orders aimed at reforming labor-management relations within the federal government: the Collective Bargaining Procedures Order, the Official Time Order, and the Removal Procedures Order. The Collective Bargaining Procedures Order (Executive Order 13,836) directs federal agencies on collective bargaining processes and emphasizes perceived failures in current practices that hinder effective governance, particularly regarding accountability and performance management in agency agreements with collective bargaining representatives. The Order establishes a framework for collective bargaining, suggesting a typical negotiating period of six weeks for ground rules and four to six months for a collective bargaining agreement (CBA). It stipulates that if negotiations are stalled due to a union representative's failure to negotiate in good faith, the agency may consider filing an unfair labor practice complaint or propose unilateral changes if timely counter-proposals are not offered. Additionally, it mandates that agency negotiators request the exchange of written proposals during negotiations to address negotiability issues and assess the impact on agency operations. Agencies are directed to eliminate any existing bargaining approaches that do not align with this written proposal exchange requirement. Section 6 prohibits agency heads from negotiating over certain subjects outlined in section 7106(b)(1) of Title 5 of the United States Code, instructing subordinate officials to adhere to this restriction. The net effect of these provisions is to establish a presumptive timeline for negotiations, remove specific matters from bargaining discussions, enforce the exchange of written proposals, and encourage agencies to take unilateral actions in response to bad faith negotiations. Executive Order 13,837 emphasizes transparency and efficiency in taxpayer-funded union time use, neglecting the statutory recognition of the public interest in labor organizations and collective bargaining, and asserting that federal employees should prioritize their governmental duties. The Order justifies this stance by referencing congressional intent for effective government operations. An effective government must monitor taxpayer spending and eliminate unnecessary expenditures. Executive Order 13,837 suggests that the official duty time federal employees spend on union activities is an inefficient use of taxpayer funds. The Order defines "taxpayer-funded union time" and restricts the engagement of federal employees in union business during work hours, limiting the use of federal resources for non-agency purposes. Four guiding principles are established: 1) taxpayer-funded union time must be efficient and reasonable; 2) federal employees should primarily work for the public; 3) agencies should not cover labor organizations' expenses unless mandated by law; and 4) agencies must restrict taxpayer-funded union time by requiring authorization, monitoring usage, and ensuring transparency. The Order specifies that agencies cannot agree to authorize official time unless it is deemed reasonable, necessary, and in the public interest, with a cap of one hour of official time per federal employee per year. Agencies are encouraged to negotiate for one hour or less of official time. If a proposal exceeds this limit, agency negotiators must inform the head of the agency five days prior, and any excess must be reported to the Office of Personnel Management (OPM) and the President within fifteen days. Additionally, the Order restricts federal employees from engaging in lobbying during work hours and prohibits the use of official time for preparing or pursuing grievances against an agency. Employees engaged in union-related activities may not exceed one quarter of their total working hours for such activities, with any excess counting against their official time for the subsequent calendar year. Exceptions exist when employees are working on their own grievances, serving as witnesses, or challenging retaliatory actions for whistleblowing. Official time requires prior written authorization from the agency, unless impractical. Additionally, federal employees are prohibited from receiving discounted use of government property for non-agency business and cannot be reimbursed for expenses incurred while performing non-agency work, unless required by law. The Order mandates that the Office of Personnel Management (OPM) and agency heads ensure compliance with these regulations and any new collective bargaining agreements. The Executive Order 13,839 aims to streamline removal procedures for federal employees, emphasizing accountability while recognizing employees' rights. It encourages agencies to address unacceptable performance without mandatory progressive discipline and allows for tailored penalties based on misconduct circumstances. A federal employee may be removed without warnings or temporary suspensions for a first infraction, emphasizing that progressive discipline is not mandatory. Each employee's disciplinary history is unique, meaning that the justification for discipline can vary by individual circumstances. Agencies are prohibited from entering agreements that limit their ability to remove employees without first using progressive discipline. Underperformance must generally be addressed within 30 days, unless an agency decides otherwise. The Order also allows agency heads to negotiate collective bargaining agreements that exclude grievance procedures for disputes regarding employee removals due to misconduct or unsatisfactory performance. Additionally, agencies cannot subject performance ratings or incentive pay awards to grievance procedures or binding arbitration. These provisions aim to simplify the removal process for federal employees and reduce collective bargaining over certain issues. Following the issuance of the Orders, seventeen federal employee unions filed four lawsuits challenging their legality, with claims centered around the President’s authority in federal labor-management relations, conflicts with provisions of the Federal Service Labor-Management Relations Statute (FSLMRS), and the overall impact on the right to bargain collectively. Claims have been made arguing that the issuance of certain Orders violates the Constitution’s Take Care Clause and, specifically regarding section 4(a)(v) of the Official Time Order, the First Amendment right to freedom of association, as seen in the case Am. Fed’n of State, Cty. Mun. Emps. et al. v. Trump (18-cv-1444). Between June 15 and June 19, 2018, the court consolidated related cases and the parties agreed to expedite summary judgment proceedings. Plaintiffs filed four motions for summary judgment, asserting no genuine issue of material fact regarding the President's actions. Defendants countered with a cross-motion for summary judgment, claiming the Unions’ assertions about presidential authority lack merit, arguing the Orders fall within the President's powers, particularly under section 7117 of the Statute, which allows for the issuance of government-wide rules that can override bargaining processes. Defendants also raised questions about the court's subject-matter jurisdiction, noting that Congress has designated the FLRA and MSPB as initial adjudicators for federal labor claims, and questioned the prudential ripeness of the Unions' claims. A hearing on the cross-motions took place on July 25, 2018. The document outlines that the President's authority must derive from either Congressional acts or the Constitution. Courts may need to evaluate both the statutory and constitutional authority of the President, but need not consider constitutional authority unless specifically invoked. It is possible for a court to determine that the President acted outside his statutory authority without concluding a constitutional violation occurred. The distinction between statutory excess and constitutional violations is emphasized, with challenges often involving complex statutory interpretation. A court must evaluate three critical aspects when determining the validity of a President's executive order: the organic statute granting authority, the scope of the executive order itself, and any inconsistencies between the two. There are two primary ways a President may exceed statutory authority: (1) the lack of any explicit or implicit delegation of authority from a statute, and (2) the issuance of orders that conflict with federal law. If the President claims inherent constitutional authority, the analysis follows the framework established by Justice Jackson in Youngstown. When acting under clear congressional authorization, the President's authority is at its peak, enjoying strong presumptions and a broad judicial interpretation. Conversely, if no congressional authority exists, the President's powers may overlap with Congress, leading to a "zone of twilight" where executive power can be exercised amidst congressional inaction. If the President acts against the expressed or implied will of Congress, his authority is diminished, relying primarily on his constitutional powers, and any claim of exclusive presidential control must show that such actions fall outside Congress's reach. Ultimately, the court must scrutinize the statutory and inherent authority of the President concerning the challenged action, drawing from constitutional text, structure, and relevant precedents. Motions for summary judgment require the movant to demonstrate there is no genuine dispute over material facts and that they are entitled to judgment as a matter of law, per Federal Rule of Civil Procedure 56(a). In cases involving ultra vires and constitutional separation of powers claims, the determination of whether a statute or the Constitution provides the President with authority is a legal question without factual disputes, leading to de novo review. In the current case, the Unions challenge the President’s authority to issue executive orders on federal labor-management relations, asserting that he lacks the statutory and constitutional basis for such actions, while the President argues he has the necessary authority and that the Unions' claims are not suitable for judicial review. The Court analyzes subject-matter jurisdiction and the ripeness of the Unions' claims, concluding they should not be directed to the Federal Labor Relations Authority (FLRA) and are ripe for judicial review. The Court assesses the merits, finding the President does indeed have constitutional and statutory authority to implement executive orders affecting federal labor-management relations. However, any such orders must respect the collective bargaining rights established under the Federal Service Labor-Management Relations Statute (FSLMRS). The Court determines that certain provisions of the challenged executive orders improperly restrict the right to bargain collectively, indicating that the President has exceeded his authority in this regard. Key provisions identified as problematic include restrictions on official time activities, prohibitions on bargaining over permissive matters, and limitations on negotiated grievance procedures, which collectively undermine the expansive negotiation intent of the FSLMRS. The Orders mandate that federal agencies typically conclude collective bargaining negotiations within five to seven months and limit the applicability of grievance procedures where reasonable. These directives contradict the Federal Service Labor-Management Relations Statute (FSLMRS), which expects good-faith conduct during negotiations. The Court asserts that the President lacks statutory authority to issue directives that diminish the statutory right to collective bargaining established by Congress and does not have constitutional power to override congressional policy. Only provisions from Executive Orders 13,836, 13,837, or 13,839 that do not restrict collective bargaining rights or hinder good-faith negotiations can remain valid. Additionally, the Court emphasizes its subject-matter jurisdiction, noting that Congress defines the powers of federal courts. Federal courts, being of limited jurisdiction, can only hear cases authorized by Congress. While Congress can channel claims through alternative review mechanisms, such as the FSLMRS and CSRA, the defendants argue that these mechanisms require the Unions to seek resolution through the Federal Labor Relations Authority (FLRA) or the Merit Systems Protection Board (MSPB), asserting that this precludes the Court from having jurisdiction over the present dispute. The statutory review framework established in Thunder Basin Coal Co. v. Reich requires courts to determine whether Congress intended for claims to be exclusively handled through a specific statutory scheme. This determination involves a two-pronged test: first, that Congress's intent is "fairly discernible" in the statutory framework, and second, that the claims fall within the type of issues Congress intended to be adjudicated through that framework. Both elements are necessary to conclude that district court jurisdiction has been implicitly denied. In the context of the Federal Service Labor-Management Relations Statute (FSLMRS) and the Civil Service Reform Act (CSRA), Congress has clearly indicated an intent to channel certain claims to the Federal Labor Relations Authority (FLRA) and the Merit Systems Protection Board (MSPB). The FSLMRS reflects a complex scheme for managing federal labor relations, which includes provisions that restrict plaintiffs from seeking judicial review outside of the CSRA's procedures. This is supported by the detailed review procedures outlined in the FSLMRS, which suggest an exclusive process for appeals related to final orders issued by the FLRA. The D.C. Circuit has recognized the exclusivity of the FSLMRS’s remedial regime, stating that federal district courts lack concurrent jurisdiction over matters exclusively within the FLRA's domain. Consequently, Congress intended for most claims under the FSLMRS to be addressed by the FLRA rather than federal district courts, as this allows for agency expertise to be applied to specific issues. Similarly, the CSRA provides a comprehensive system for reviewing personnel actions against federal employees. The statute includes mechanisms for resolving disputes through administrative and judicial review of adverse employment actions, specifically referencing Chapters 43 and 75 of the Civil Service Reform Act (CSRA) relating to job performance and misconduct. This structure implies that Congress intended to limit additional avenues for review in district courts for covered employees. The Unions argue that their claims do not fall within the scope intended for review under the Federal Labor-Management Relations Statute (FSLMRS) or CSRA. The D.C. Circuit has outlined an analysis for determining whether claims can bypass initial administrative review, emphasizing that a strong rationale is needed to challenge this presumption. Conditions that might support such a rationale include the potential for preclusion of meaningful judicial review, the claims being collateral to the statutory provisions, and the claims falling outside the agency's expertise. These conditions serve as general guideposts rather than strict criteria. The court concludes that these guideposts suggest Congress did not intend to eliminate district court jurisdiction over the Unions' claims. The availability of meaningful judicial review is crucial, requiring an assessment of whether plaintiffs would face significant harm by being restricted to the administrative review process and whether they could access necessary evidence through that process, as well as whether an Article III court would eventually resolve their claims. The Court determines that under the Federal Service Labor-Management Relations Statute (FSLMRS), the Unions cannot achieve meaningful judicial review regarding their claims since the Federal Labor Relations Authority (FLRA) lacks jurisdiction over such cases, precluding any appellate court review. The FSLMRS outlines the FLRA's authority, primarily limited to addressing specific factual issues related to labor disputes, such as violations of the statute's provisions. Congress has granted the FLRA powers to issue orders against agencies or labor organizations for FSLMRS violations and to mandate remedial actions. However, the FLRA's jurisdiction does not extend to broad legal questions about labor-management relations, such as the constitutionality of systemic agency practices. Any claims challenging the constitutionality of arbitration or FLRA procedures must be brought in district court. Notably, while similar agencies have been empowered to address abstract legal questions in other parts of the Civil Service Reform Act (CSRA), the FLRA's mandate remains limited. The FLRA has consistently asserted its lack of jurisdiction over claims questioning the legality of agency actions, reinforcing its interpretation of the FSLMRS as a narrow grant of authority. The FLRA has determined that challenges regarding the validity of federal labor relations rules should be addressed in district court, as indicated in the case of Am. Fed. Gov’t Emps. Local 4052. The Unions' claims in the current case are broad attacks on the validity of presidential directives rather than specific allegations of unfair labor practices or grievances. The FSLMRS does not empower the FLRA to evaluate the legality of executive orders or rules from other federal agencies, as clarified by prior rulings. Congress intended to limit the FLRA's jurisdiction to specific labor-related disputes, excluding ultra vires and constitutional claims. The defendants argue that judicial review could still occur via a court of appeals under section 7123 of Title 5, but this is contested. The MSPB also has limited jurisdiction, only able to hear appeals regarding specific employment actions, as outlined in Title 5 of the Code of Federal Regulations. Therefore, jurisdiction depends on concrete employment actions affecting individual employees, further limiting the scope of claims that can be addressed by the FLRA or MSPB. The MSPB's authority to invalidate OPM rules is limited to those requiring prohibited personnel actions as defined by section 2302(b) of Title 5, and does not extend to rules or executive orders with general legal force. Individuals aggrieved by FLRA final orders, including dismissals for lack of jurisdiction, can seek judicial review in the D.C. Circuit Court of Appeals. The federal courts of appeals have jurisdiction over FLRA-determined questions, which the defendants interpret as allowing the court to address ultra vires or constitutional challenges against presidential executive orders related to FLRA proceedings. However, the FSLMRS does not empower the FLRA to adjudicate such challenges, meaning the appeals court's review is derivative of the FLRA's jurisdiction. The review under section 7123(a) is confined to FLRA proceedings and determinations. The court of appeals may grant temporary relief and its final decree must relate to the FLRA's decision, affirming, modifying, or setting aside the FLRA's order as appropriate. The statute restricts the court's review to facts considered by the FLRA. Consequently, the Unions' lawsuit against the President and OPM regarding the validity of presidential orders falls outside FLRA’s jurisdiction, which precludes the appeals court from addressing these claims under section 7123. While case law allows appeals courts to resolve claims even if an administrative agency lacks authority, objections not presented to the FLRA cannot be considered by the court unless extraordinary circumstances excuse the failure. Findings by the Federal Labor Relations Authority (FLRA) regarding factual questions are conclusive if backed by substantial evidence from the entire record. A court may allow additional evidence if a party demonstrates it is material and there were reasonable grounds for not presenting it during the FLRA hearing. However, in cases where unadjudicated claims arise from proceedings specifically designated for administrative review, plaintiffs retain the possibility of meaningful judicial review. In contrast, the D.C. Circuit in American Federation of Government Employees, AFL-CIO, Local 446 v. Nicholson held that the FLRA lacked authority to review the Secretary of Veterans Affairs' determination regarding collective bargaining, preventing the court from offering judicial review under section 7123 of Title 5. The FLRA’s jurisdiction is limited to matters involving unfair labor practices, grievances, or negotiability disputes, meaning the court cannot review claims outside this scope, such as challenges to presidential executive orders. Additionally, any challenge to the legality of OPM regulations must be addressed in district courts rather than through the FLRA. The reliance on Elgin v. Department of the Treasury is deemed misplaced, as Elgin involved a case where the agency could not assess the constitutionality of a statute, leading the plaintiff to pursue a district court action rather than an appeal through authorized channels. Elgin argued before the Supreme Court that he filed a district court action because the MSPB lacked authority to address certain constitutional claims, which also precluded the Federal Circuit from reviewing those claims, thereby limiting judicial review. The Supreme Court did not resolve whether the MSPB could adjudicate constitutional claims but stated that the Federal Circuit could hear Elgin’s claims under the statutory administrative review framework. The Court highlighted that the Federal Circuit only questions its jurisdiction when the MSPB lacks jurisdiction over an adverse action. If the MSPB has jurisdiction over an appeal involving employment actions, it does not matter if it cannot rule on specific claims. The principles established in Jarkesy and Thunder Basin were noted, where federal agencies were charged with violations they had the authority to adjudicate. In both cases, despite challenges regarding the agencies’ ability to rule on certain claims, the courts of appeals were deemed competent to review the agencies' proceedings. In contrast, Elgin's case differs significantly as it lacks an underlying jurisdictional matter for the FLRA, such as an unfair labor practice or grievance, that would enable it to exercise jurisdiction. The FLRA lacks jurisdiction over the case, not only regarding the specific claims raised by the Unions but also in a broader context that prevents a court of appeals from reviewing the Unions’ challenge to the President’s executive orders under section 7123(c) of Title 5 of the United States Code. Similarly, the Federal Circuit's jurisdiction is limited to claims arising from cases before the MSPB, where if the MSPB lacks jurisdiction, the Federal Circuit also cannot hear the appeal. In this instance, the MSPB cannot hear the Unions' claims due to the absence of any relevant employment action or employee, which consequently bars the Federal Circuit from reviewing these claims. The implications are significant: if the district court also denies jurisdiction, the Unions would be left without any avenue for Article III judicial review of their assertion that the President overstepped his authority. This suggests that Congress likely did not intend to preclude district court jurisdiction over the Unions' claims. Case law supports this, indicating that courts usually can review ultra vires claims unless Congress explicitly restricts all non-statutory judicial review of presidential actions. Additionally, the Unions' claims are determined to be wholly collateral to the FSLMRS and CSRA administrative-judicial review processes. The Supreme Court and the D.C. Circuit have differentiated between claims arising within the agency's enforcement scheme and those that emerge from actions outside of it. Claims considered "wholly collateral" typically involve circumstances separate from the agency's actions or decisions, which is applicable here. Legal claims challenging the existence of an administrative agency, rather than the agency's proceedings, are considered "wholly collateral." For instance, a challenge to a regulation resulting from the notice-and-comment rulemaking process is distinct from claims arising from specific agency actions, which cannot be deemed wholly collateral. Courts assess whether claims might impact ongoing administrative proceedings, preventing parties from circumventing statutory review by seeking direct federal court intervention. In the context of the Unions' lawsuit against the President and the Office of Personnel Management (OPM), their claims assert that certain executive orders are ultra vires and unconstitutional, not directly related to any unfair labor practices or grievance proceedings. Therefore, these claims do not intertwine with enforcement proceedings that the Federal Labor Relations Authority (FLRA) or the Merit Systems Protection Board (MSPB) might address. Historical precedent from the D.C. Circuit supports this view, as exemplified in National Mining Association v. Department of Labor, where the court allowed challenges to agency regulations in federal district courts. The court distinguished between "rules" and "orders" under administrative law, concluding that plaintiffs must seek district court review for rules not defined as orders under statutory review schemes. A pre-enforcement challenge to an agency rule can qualify as a wholly collateral claim, as established in National Mining, which emphasized that such challenges differ from those against enforcement policies. The D.C. Circuit reaffirmed this distinction by highlighting that National Mining focused on the validity of a formal regulation created through notice-and-comment rulemaking rather than on an enforcement policy. The court noted that the challenge presented by the Unions is more akin to the National Mining case, as it targets the President's "rules" rather than specific orders from the Federal Labor Relations Authority (FLRA) or the Merit Systems Protection Board (MSPB). Although the President's directives are not formal regulations, they are functionally similar as they have the force of law and affect parties' rights. The Unions argue that these new rules are ultra vires and violate federal law or the Constitution broadly, rather than contesting specific agency decisions. Furthermore, resolving the Unions' claims necessitates a comprehensive evaluation of existing laws and regulations, which cannot be effectively handled through individual adjudications of specific regulatory provisions. Defendants incorrectly assert that Congress intended for Unions to address broad ultra vires and constitutional claims through the established administrative-judicial review processes designed for labor representatives and federal managers. They reference the case American Federation of Government Employees v. Secretary of the Air Force, which involved a challenge to Air Force regulations regarding civilian dress codes. The D.C. Circuit held that the unions could not bypass the statutory review procedures established by the Federal Service Labor-Management Relations Statute (FSLMRS) and the Civil Service Reform Act (CSRA), as they had multiple avenues for relief through negotiations or grievances. However, the current claims differ significantly since the Unions are challenging presidential actions rather than agency-specific policies. The existing administrative remedies do not align with the relief sought by the Unions, as there is no close connection between their claims and the remedies available through the administrative process. The D.C. Circuit has indicated that when Congress provides a specific administrative review framework, plaintiffs should not be allowed to bypass it by resorting to federal district court complaints. Defendants further argue that the Unions need to reframe their claims to show violations by specific agencies related to the FSLMRS or unfair labor practices, implying that without such a connection, the Unions cannot raise their claims. Defendants fail to justify their argument that plaintiffs, specifically the Unions, cannot pursue their claims in district court, emphasizing that plaintiffs have control over their complaints. The Supreme Court has established that plaintiffs can choose the legal basis for their suits and has not required any transformation of claims that fall outside the designated administrative review processes. Case law indicates that if certain claims cannot be addressed by administrative bodies like the FLRA, it does not preclude district courts from hearing them. The suggestion by Defendants that only a reformulation of the claims can facilitate resolution lacks legal support and misrepresents the D.C. Circuit's findings. The Unions' claims, which challenge the President's authority under statutory and constitutional grounds, are distinct and cannot be treated as mere extensions of ongoing administrative proceedings. The claims are deemed "wholly collateral" to those processes, suggesting that Congress did not intend for such claims to be handled exclusively by the FLRA or MSPB. Additionally, while the expertise of relevant agencies may be beneficial, it is not critical for resolving the Unions' claims, which may involve legal questions beyond the agencies' typical purview. The statute in question may be regularly construed by the agency, but the claims brought by the Unions necessitate an evaluation of executive power, specifically whether Congress has granted the President the authority to issue executive orders related to labor-management relations. The expertise of the FLRA and MSPB, while potentially beneficial, is limited due to their lack of focus on separation-of-powers issues central to this case. The judiciary is tasked with resolving such foundational legal questions, supported by cases like Youngstown and Marbury v. Madison, which affirm the judiciary's role in interpreting law. Although the FLRA and MSPB can provide insights on federal labor relations statutes, Congress did not intend for these agencies to address broader legal questions beyond their specific expertise. Moreover, the district courts can rely on agency expertise when interpreting relevant statutes but must also maintain jurisdiction over cases like this one, as the claims presented are collateral to any administrative action. The argument that Congress intended an administrative agency to resolve significant legal disputes concerning the distribution of power among government branches is implausible, particularly given the nature of the claims raised by the Unions. Consequently, this court concludes that Congress did not intend for these claims to be resolved by the specified agencies. The court determines it has subject-matter jurisdiction to address the Unions’ claims, which are suitable for judicial resolution. The principle of prudential ripeness dictates that federal courts should only intervene when necessary, avoiding premature involvement in abstract disputes. This concept serves to prevent judicial interference until decisions from other branches are finalized and their impacts are realized. To evaluate if a claim is ripe, courts consider the fitness of the issues for decision-making and the potential hardship of delaying a decision for the parties involved. Generally, claims that are purely legal or require a concrete context for analysis are seen as fit for review. During the motion hearing, the Defendants recognized the weaknesses in their ripeness argument concerning the Unions’ legal claim about the President's authority over federal labor relations executive orders. They conceded that specific provisions of these orders, which are clearly defined and leave no discretion to federal agencies, are ripe for judicial examination. However, they argued that certain claims regarding the President's announcement of new collective bargaining policies, particularly those involving directives to the Office of Personnel Management (OPM) for regulatory changes, and provisions setting aspirational goals that allow for negotiation, should be deemed prudentially unripe. Defendants assert that the Court should postpone its evaluation of Plaintiffs' challenges to specific provisions in executive orders, arguing that further clarification from the Office of Personnel Management (OPM) and other agencies could facilitate administrative determinations regarding the orders' interaction with applicable law. They contend that the provisions in question primarily set goals for agency negotiations and provide policy guidance, rendering them unsuitable for judicial review due to their factual nature. However, the Court finds these ripeness arguments unconvincing, suggesting that they misinterpret either the executive orders or the Unions' claims. Specifically, the Court notes that the anticipated clarifications by OPM will be limited and will not significantly alter the clear policy changes established by the President regarding collective bargaining negotiations. For instance, Executive Order No. 13,837 prohibits employees from lobbying on paid time unless acting in their official capacity, and Executive Order No. 13,839 removes certain disputes from grievance procedures. Agencies are already interpreting and implementing these orders without ambiguity, indicating that additional guidance from OPM would not impede the Court's ability to assess whether these new policies violate labor rights protected by the Federal Service Labor-Management Relations Statute (FSLMRS). The Court references case law suggesting that facial claims against such policies are generally ripe for judicial review, as they address concrete issues rather than speculative or abstract concerns. Defendants' ripeness arguments concerning executive order provisions related to collective bargaining fail to hold. Specific sections of the Collective Bargaining Procedures Order, Official Time Order, and Removal Procedures Order establish goals that agencies should "ordinarily" pursue in negotiations. While agencies have discretion resulting in variable outcomes, the core issue is whether these provisions are ultra vires, as the Unions argue that the President's imposition of such aspirational goals infringes on agency officials' bargaining discretion, violating statutory requirements. Key points of contention include the assertion that Section 3 restricts meaningful negotiation on official time and that Section 5(a) sets an unreasonable baseline for negotiations, undermining good faith. The Unions' complaints emphasize that the President's establishment of presumptive timelines and procedural steps transgresses the statutory duty of good faith bargaining, which mandates agencies approach negotiations without preordained constraints. The legal question of FSLMRS requirements regarding open-minded negotiations is ripe for resolution without further factual inquiry, as established in case law. Even if doubts exist about judicial resolution, the alleged ongoing hardships faced by the Unions would justify the Court's engagement in judicial review. The President has the authority to issue executive orders on federal labor-management relations, provided they do not conflict with Congress's intent. With the preliminary arguments addressed, the focus shifts to the merits of the Unions' claims. The Unions in the consolidated actions contend that the President lacks the authority to issue executive orders with legal force in federal labor-management relations, arguing this is unsupported by statutory or constitutional provisions. However, the Court finds that established precedent and historical practices affirm the President's authority under both section 7301 of Title 5 of the U.S. Code and his constitutional powers as the head of the Executive Branch. The Unions have exaggerated Congress's intent to restrict presidential authority through the FSLMRS/CSRA, though it is acknowledged that presidential orders must align with congressional intent. Historically, prior Presidents, such as Kennedy and Nixon, issued executive orders to regulate labor relations, which the Unions dispute as lacking statutory basis. The defense counters that the Supreme Court has recognized the President's authority to issue such orders. In the case of Old Dominion Branch No. 496, the Supreme Court upheld President Nixon’s Executive Order 11,491, affirming it as a reasonable exercise of presidential responsibility for the Executive Branch's operation and emphasizing statutory support in 5 U.S.C. 7301, which encompasses employee conduct, including interactions with management. The Old Dominion Court affirmed the validity of an executive order establishing federal labor-management relations, citing both statutory authority from Congress under section 7301 and the President's constitutional authority over federal workforce management. This supports the view that the President has the power to issue executive orders regarding federal labor-management relationships, particularly before the Federal Service Labor-Management Relations Statute (FSLMRS). Historical precedent demonstrates that presidents have utilized executive orders to create comprehensive labor-management frameworks and determine employee rights, as seen in various executive orders. Recent Supreme Court decisions further reinforce the President's significant authority over executive branch employees. The National Federation of Federal Employees (NFFE) claims that there is no statutory basis for presidential executive orders in this area, but this argument is undermined by the established combination of statutory and constitutional authority enabling presidential involvement in labor-management issues. NFFE's reference to Supreme Court statements and circuit court opinions attempting to question the legislative nature of early executive orders fails to negate the President's authority. The excerpt examines the legal status of pre-FSLMRS executive orders and their classification as “laws of the United States,” which affects federal court jurisdiction under section 1331 of Title 28 and private actions against unions or federal employers. It distinguishes the current case from prior circuit court rulings, emphasizing that those rulings did not suggest that pre-FSLMRS executive orders were unauthorized by statute, despite stating they were not legislative or issued under specific congressional authority. The National Federation of Federal Employees (NFFE) claims that section 7301, which grants the President authority to regulate executive branch employee conduct, does not validate executive orders related to union official time. However, historical interpretations by courts indicate that executive orders lacking a direct congressional mandate cannot be classified as “laws of the United States” for the purposes of section 1331, but this does not negate the President's statutory authority to issue such orders in federal labor relations. The Supreme Court has recognized this authority, as seen in Old Dominion and BATF cases, which affirm the President's power to regulate employee conduct, including how employees allocate their work time. The FSLMRS and CSRA do not strip the President of authority over federal labor-management relations. Union plaintiffs argue that Congress intended to limit executive power in this area when enacting the FSLMRS in 1978. However, the FSLMRS explicitly references the President in three contexts: granting authority to exclude agencies from coverage for national security reasons, allowing presidential appointments to the FLRA and the Federal Services Impasse Board, and affirming that existing executive orders remain effective until changed by the President or superseded by the FSLMRS. Notably, the FSLMRS does not explicitly prohibit presidential executive orders regarding labor relations, which is significant given Congress's awareness of past executive involvement. The legislative history indicates that Congress aimed to codify the gains achieved through executive orders rather than eliminate presidential authority. This absence of explicit prohibition, alongside the historical context, suggests that Congress likely did not intend to completely remove the President from this regulatory sphere. Defendants have highlighted language in the original Public Law that underscores Congress's intent on this matter. Congress, in the Civil Service Reform Act (CSRA) of 1978, established that no part of the Act should limit the President's existing functions or authority unless explicitly stated. This includes the President's power to delegate functions. The court highlights that the unions have not provided compelling arguments against this provision, which clearly affirms the President's authority in federal labor relations despite the enactment of the Federal Service Labor-Management Relations Statute (FSLMRS). While the unions acknowledge the comprehensive nature of the FSLMRS, they incorrectly suggest that it prevents future presidential actions in this domain. Courts typically require clear evidence of congressional intent to limit presidential powers, particularly when it involves balancing powers among branches of government. The court concludes that the unions lack a valid basis to claim that Congress has stripped the President of authority in federal labor relations through the FSLMRS and CSRA. However, it notes that any executive orders issued by the President must not conflict with federal statutes, as such orders are not deemed valid if they contradict established laws. The D.C. Circuit has ruled that executive orders inconsistent with federal statutes are ultra vires and cannot supersede them. The President may assert inherent constitutional authority to act independently of congressional statutes, as seen in cases like Zivotofsky and Youngstown; however, in this instance, the Defendants have acknowledged statutory limitations on presidential authority. They have not claimed the President can issue executive orders that conflict with federal statutes or revoke portions of those statutes through executive action. The key issue at hand involves statutory interpretation regarding whether Executive Orders 13,836, 13,837, and 13,839 conflict with congressional intent as expressed in federal statutes. If such a conflict exists, the President lacks the authority to enforce those provisions. The Federal Service Labor-Management Relations Statute (FSLMRS) explicitly grants federal employees the right to bargain collectively regarding their working conditions, reflecting Congress's commitment to labor organizations and collective bargaining. The FSLMRS emphasizes that employee organization and collective bargaining serve the public interest, enhance government efficiency, and facilitate dispute resolution between employees and employers. The statute sets forth rights and obligations for federal employees and management, outlines unfair labor practices, and mandates good faith bargaining, establishing a framework for effective federal labor-management relations. The provisions should be interpreted to promote an effective and efficient government, reinforcing the importance of labor organizations and collective bargaining in the civil service. The excerpt emphasizes the detrimental impact of certain directives from President Trump's executive orders on federal labor protections as established by the Federal Service Labor-Management Relations Statute (FSLMRS). The unions argue that these directives undermine core protections, rendering the right to collective bargaining nearly unrecognizable. The court concurs that many provisions of the orders infringe upon the statutory right to good-faith bargaining mandated by the FSLMRS. The FSLMRS not only establishes the right to collective bargaining for federal employees but also defines it as the mutual obligation of agency representatives and employee representatives to meet and negotiate in good faith regarding employment conditions. While the statute clarifies that neither party is compelled to accept proposals or concessions, it emphasizes that collective bargaining must occur with respect to personnel policies and working conditions. The FSLMRS also establishes an independent agency to resolve disputes and develop policies to protect collective bargaining rights. Ultimately, the law mandates that labor and management must consult and negotiate in good faith, ensuring federal workers have a voice in their working conditions. A collective bargaining measure enables employees to express their views collectively, fostering industrial peace through voluntary agreements between unions and employers, as outlined in the National Labor Relations Act. The D.C. Circuit identifies core elements of the right to bargain collectively under the Federal Service Labor-Management Relations Statute (FSLMRS), including the duties to bargain and to negotiate in good faith. The FSLMRS establishes a three-tier framework for the duty to bargain regarding working conditions in the federal civil service. First, federal agencies and labor unions are generally required to negotiate on any "condition of employment," which encompasses policies and practices affecting employees. These topics are mandatory subjects of negotiation. Second, the FSLMRS allows for permissive bargaining on certain matters at the agency's discretion, such as employee numbers and methods of work, but neither party can insist on agreement as a condition for a labor agreement. Finally, the statute prohibits bargaining on specific substantive topics, including management rights and any conditions inconsistent with federal law or government-wide regulations. Thus, collective bargaining under the FSLMRS involves negotiating all mandatory subjects not excluded by the statute. Negotiations under the Federal Service Labor-Management Relations Statute (FSLMRS) require parties to address "mandatory" subjects of bargaining while allowing for the negotiation of certain "permissive" matters, per Section 7106(b)(1). Although agencies have the discretion to negotiate these permissive matters, they must engage in discussions over mandatory topics, as mandated by the National Labor Relations Act (NLRA) and FSLMRS. The D.C. Circuit has noted that the scope of bargaining rights under the FSLMRS is limited compared to private sector obligations, reflecting Congress's intent to accommodate the government's unique needs. FSLMRS also imposes a duty on both labor unions and agencies to negotiate in good faith, characterized by a willingness to engage meaningfully in discussions, avoid unnecessary delays, and actively work towards a collective agreement. This includes being represented by authorized individuals prepared to negotiate and maintaining an open mind throughout the process. The courts and the Federal Labor Relations Authority (FLRA) assess good faith by evaluating any attempts to evade or frustrate the bargaining responsibilities. Precedents established under the NLRA are considered relevant in interpreting the FSLMRS's requirements for good faith negotiations. The Federal Service Labor-Management Relations Statute (FSLMRS) mandates federal agencies to engage in collective bargaining and negotiate in good faith. Agencies must be cautious not to remove issues from the negotiation table, as this would infringe upon federal workers' rights to bargain. Good faith negotiation requires agency representatives to approach discussions with an open mind and a willingness to consider employee proposals seriously. The case National Treasury Employees Union v. Chertoff illustrates the consequences of agencies limiting the scope of bargaining. The Department of Homeland Security (DHS) and Office of Personnel Management (OPM) attempted to implement regulations that significantly restricted collective bargaining topics, leaving only personal grievances. This action was challenged by unions, and the D.C. Circuit ruled that such limitations violated employees' rights to collective bargaining. Key takeaways from this case include the importance of maintaining the core elements of collective bargaining and recognizing that reducing negotiable matters can infringe on these rights. Agencies must ensure that they do not indiscriminately take topics off the table and must respect the statutory requirements governing the scope and nature of negotiations. An agency, including the President, may violate the Federal Service Labor-Management Relations Statute (FSLMRS) by diminishing the scope of bargaining to the extent that it undermines the requirement for good-faith negotiation regarding employment conditions. Attempts to limit negotiable topics deemed permissive under FSLMRS section 7106(b)(1) are not mere exercises of management prerogatives; they significantly infringe upon employees’ rights to negotiate and raise concerns about the agency's motivations for excluding specific topics. The court in Chertoff highlighted the critical nature of such removals in assessing the permissibility of bargaining scope reductions. Defendants argue that the focus should be on whether the remaining topics are sufficient for collective bargaining, rather than solely on the removal of specific negotiable topics. However, Chertoff does not necessitate a finding of a near-total reduction to establish a violation; even less severe reductions can impair the right to bargain under the FSLMRS. The court reiterates that the norms of collective bargaining must be respected, and any arbitrary removal of negotiable topics jeopardizes the rights protected by the statute. Additionally, it is noted that an executive official's instructions to agency negotiators may undermine the good faith required for compliance with FSLMRS. The excerpt outlines significant concerns regarding executive orders that limit the scope of collective bargaining between agencies and unions, potentially violating the statutory duty to negotiate in good faith. It asserts that certain instructions may lead agency negotiators to approach discussions with a predetermined mindset, undermining their obligation to negotiate flexibly and sincerely. The text identifies four categories of negotiable matters, as defined by Congress, that the executive orders improperly attempt to exclude from bargaining: 1. Permissive subjects of bargaining listed in section 7106(b)(1) of Title 5. 2. Regulations governing how union members can utilize official time, as addressed in section 7131(d) of the Federal Service Labor-Management Relations Statute (FSLMRS). 3. Procedures for managing employee performance issues, which are detailed in sections 7103(a)(12) and 7121. 4. Methods for conducting collective bargaining, designated as negotiable under section 7114(a)(4). The excerpt highlights that the Collective Bargaining Procedures Order explicitly prohibits negotiations over subjects listed in section 7106(b)(1), while the Official Time Order redefines the terms related to employees' rights to engage in union activities during paid hours, contrary to the provisions of the FSLMRS. The court concludes that the executive orders represent an illegitimate effort to remove these negotiable matters from bargaining discussions. Participation in proceedings before the FLRA is permitted if authorized by the agency. Section 7131(b) prohibits the use of official time for activities related to a labor organization’s internal business, while section 7131(d) mandates that federal employees be granted official time as agreed upon by the agency and the exclusive representative, provided it is reasonable, necessary, and in the public interest. Official time is defined as the right of employees to receive usual pay during union-related activities. However, certain provisions in the Official Time Order limit negotiations regarding the use of official time, including outright prohibitions on lobbying government officials and preparing grievances on behalf of the union. The Order also restricts the use of federal resources for activities performed on official time and caps the maximum official time at twenty-five percent of a union employee's working hours, requiring management approval for any use of official time. The Removal Procedures Order, similarly, restricts negotiation over employee performance evaluations, explicitly prohibiting agencies from subjecting disputes about assignment ratings or performance-based awards to grievance procedures or binding arbitration. This contrasts with the provisions of the FSLMRS, which suggest grievance matters are negotiable. Additionally, the Order grants agency management sole discretion regarding the timeline for employee performance improvement, despite existing regulations not imposing a specific limit. Courts and the FLRA recognize that these matters fall within the bargaining rights protected by Congress under the FSLMRS, affirming that financial support to union members is negotiable during collective bargaining. A party has the freedom to advocate for the proper amount of official time, but matters under section 7106(b)(1) are negotiable only at the agency's discretion. Official time usage and the amount of recovery time before performance-based actions are negotiable topics. Grievance procedures also fall under negotiable scope, per 5 U.S.C. 7114(a)(4). The Unions have identified a conflict between the Removal Procedures Order and the Federal Service Labor-Management Relations Statute (FSLMRS) regarding bargaining scope. Specifically, section 4(b)(iii) of the Order restricts agreements that limit agency discretion in employee removal without progressive discipline. However, this directive does not conflict with FSLMRS, as the Federal Labor Relations Authority (FLRA) asserts these matters fall under agency management's sole discretion and should receive Chevron deference. The Orders challenged by the Unions remove certain topics from bargaining discussions, which diminishes the scope of negotiation rights intended by Congress. This reduction is viewed as impermissible, as it shifts topics from negotiable to non-negotiable, ultimately impacting labor organizations and fairness in collective bargaining. The Orders overly emphasize concepts of an "effective" and "efficient" government, which contrasts with the FSLMRS's core principle that supports labor organizations and collective bargaining as being in the public interest. The statute articulates that the right of employees to organize and bargain collectively contributes to the effective conduct of public business, suggesting that accommodating collective bargaining rights does not hinder governmental efficiency. Section 7101(a)(2) emphasizes that collective bargaining enhances employee performance and government operations by promoting modern work practices. The significance of issues removed from collective bargaining negotiations is crucial, as it affects the assessment of whether these removals align with Congressional intent. Notably, the D.C. Circuit in Chertoff rejected the notion that certain bargaining matters are completely “off limits,” stressing the importance of distinguishing between a right to bargain that includes potential discussions of these matters and one that does not. The executive order limiting official time for union activities may further restrict bargaining scope under the Federal Service Labor-Management Relations Statute (FSLMRS). This order prohibits union members from using official time for lobbying and pursuing grievances, undermining key union functions such as advocating for workers’ rights and enforcing collective bargaining agreements. Unions have historically played a critical role in promoting favorable legislation for workers, and the right to communicate with Congress is essential due to the legislative determination of many working conditions. The efficacy of union agreements is contingent upon the ability to vigorously pursue grievances, a practice supported by Congress through the FSLMRS, which emphasizes the right to negotiate grievance procedures. Unions have actively sought to protect their right to negotiate the use of official time for lobbying and grievance assistance, both prior to and following the Federal Service Labor-Management Relations Statute (FSLMRS) enactment. Collective bargaining regarding material support is viewed as essential for achieving balance between management and labor, as mandated by the FSLMRS. Historical justifications for allowing federal employees to engage in union activities during official time include maintaining reasonable union self-support and ensuring union representatives have equal opportunity to perform their duties as management does. However, the Official Time Order significantly undermines unions' rights to negotiate official time and financial support, as union representatives are unable to negotiate for financial backing equivalent to that of management or secure sufficient time to specialize in labor-management issues. The Order requires agency management to pre-approve union representatives' use of official time, effectively granting management discretion over when union activities can occur. This provision poses the greatest threat to the bargaining rights established by the FSLMRS, as it allows management to control what is deemed "reasonable and necessary," thus potentially limiting union representatives' use of paid time for union-related activities to a narrow scope. While the Order does not prevent union members from engaging in activities during their own time or strip them of their statutory rights under Title 5, it shifts critical decision-making authority regarding official time usage from both parties to management, which could lead to restrictions on labor representatives' access to paid time. Parties involved in collective bargaining negotiations retain the ability to negotiate the conditions under which official time may be granted, excluding circumstances related to lobbying and grievances. However, the Official Time Order mandates that agencies have the authority to grant or deny authorization for official time usage, which could undermine the effectiveness of any agreements reached. The D.C. Circuit has ruled that this unilateral authority conflicts with Congressional intent, as no statutory framework permits a party to unilaterally invalidate a legitimate agreement. Additionally, the provisions of the Removal Procedures Order regarding grievance processes and performance evaluations significantly impact employee rights. Grievance procedures are essential for protecting the participation rights of employees and unions, as established by the Federal Service Labor-Management Relations Statute (FSLMRS). Reducing the scope of negotiations on these matters raises concerns about adherence to Congressional priorities. The Order also restricts labor representatives from negotiating grievance handling related to unsatisfactory performance evaluations or compensation issues, thereby limiting unions' roles in ensuring fair treatment of federal employees. This restriction could jeopardize the accountability of government officials in their treatment of workers, contradicting the FSLMRS's objective to promote public interest and resolve disputes amicably. Moreover, preventing agencies from negotiating the timeframe for employees to demonstrate acceptable performance undermines a critical employee right concerning performance evaluations. Defendants have not adequately justified how these restrictions align with the FSLMRS's requirement for federal workers to have a voice in their employment conditions. Overall, the protections outlined in chapters 43 and 75 of the Act serve to shield competitive service employees from unjust discipline or dismissal. Legally mandated collective bargaining serves as a structured means for expressing differing viewpoints, potentially leading to mutually acceptable outcomes. However, despite addressing only specific issues within a broader negotiation framework, certain provisions significantly affect the bargaining rights under the Federal Service Labor-Management Relations Statute (FSLMRS). The D.C. Circuit has noted that the scope of bargaining under the FSLMRS is inherently limited compared to private sector negotiations, indicating that attempts to further restrict these rights may be viewed skeptically. The court highlighted that when management does not even provide an "illusion of collective bargaining," it risks violating established congressional boundaries. Specific provisions of executive orders, including sections from the Collective Bargaining Procedures Order, Official Time Order, and Removal Procedures Order, impose new norms that could hinder good faith negotiations. For instance, these orders dictate standard practices regarding negotiation timelines and limits on official time for union representatives. Such restrictions may prevent federal agency representatives from fulfilling their obligations under the FSLMRS to engage in genuine negotiations. Consequently, the court found that some provisions, particularly section 4(a)(v) of the Official Time Order, undermine essential bargaining rights, making it unnecessary to explore the unions' First Amendment claims related to this section. The rights granted by the Federal Service Labor-Management Relations Statute (FSLMRS) reject the idea of a standard duration for negotiations or a typical amount of authorized official time, asserting that these are unwarranted and excessively limiting. Each collective bargaining agreement is unique regarding negotiable employment conditions and procedures, as acknowledged by the Federal Labor Relations Authority (FLRA). The executive orders in question impose norm-setting provisions that function as strict enforcement mechanisms, transforming aspirational goals into rigid requirements. These orders mandate agencies to strive for specific outcomes and allocate necessary resources, with consequences for non-compliance, including mediation or accountability to the President. The Court notes that these provisions inherently bias negotiations by establishing predetermined goals, constraining agency negotiators to defend these positions aggressively, which undermines the expected give-and-take of good faith bargaining. Additionally, section 7114(b) of the FSLMRS requires that both agencies and unions send fully authorized representatives to negotiate all employment conditions. The norm-setting provisions of the Orders limit the negotiation authority of agency officials, detracting from the FSLMRS's endorsement of open-minded collective bargaining. Agency negotiators are required to prioritize predetermined positions, commit resources to achieving them, and report to the Director of OPM and the President if unsuccessful. This approach contradicts the FSLMRS principle that collective bargaining is a cooperative process, not a competitive one, as emphasized in relevant case law. Section 5(e) of the Collective Bargaining Procedures Order further undermines good faith bargaining by mandating written proposal exchanges and discouraging flexible, direct negotiations essential to the bargaining process. This method implies that agency representatives lack full authority to engage meaningfully in negotiations, reducing their role to documentation rather than constructive dialogue. The emphasis on written proposals shifts the nature of negotiations away from interpersonal engagement and mutual effort, ultimately compromising the integrity of the bargaining process as outlined in the FSLMRS. The portion highlights significant concerns regarding the constraints imposed by section 5(e) of the Collective Bargaining Procedures Order on good faith negotiations mandated by the Federal Service Labor-Management Relations Statute (FSLMRS). It argues that this section introduces rigidity that undermines negotiation flexibility, particularly in preventing discussions about whether proposals should be submitted in writing, which is a negotiable aspect of collective bargaining agreements. The excerpt asserts that this rigidity conflicts with the fundamental duties to bargain and negotiate in good faith as per FSLMRS, thus rendering the provision problematic. Additionally, it critiques the defendants' arguments claiming that the President has the authority to issue such orders without conflict with FSLMRS. Specifically, it challenges their interpretation of section 7117(a)(1), which suggests that the President can override Congressional mandates through government-wide rules. The court finds that the defendants' assertions lack merit and highlights the inconsistency in their position, noting that while they claim the orders are meant to enhance efficiency in federal labor relations, they simultaneously argue for the President's unrestricted authority to contradict existing labor relations laws. The Defendants argue that the President has the authority to issue executive orders that nullify worker protections related to collective bargaining, which contradicts the statute designed by Congress to protect these rights. A reasonable interpretation of the statute’s language regarding "Government-wide rules or regulations" suggests that such rules relate to civil service employment conditions and should be excluded from collective bargaining requirements, as clarified in section 7117. The Defendants’ interpretation posits that the President can create government-wide rules applicable to federal labor relations, asserting that Congress intended for the President to use this power to remove specific matters from collective bargaining, as indicated by section 7117’s language about exemptions. However, this interpretation distracts from the statute's primary purpose, which is to protect collective bargaining rights. The core issue remains unanswered: why would Congress allow the President or any agency official to exempt mandatory or permissive negotiation topics from the collective bargaining framework established by the Federal Service Labor-Management Relations Statute (FSLMRS)? The Defendants' analysis fails to address this fundamental question, despite emphasizing that their interpretation is narrower than it appears. Defendants lack a rational basis for claiming that Congress intended for the President to hold the power to issue government-wide regulations that negate negotiable matters under the Federal Service Labor-Management Relations Statute (FSLMRS). The D.C. Circuit has established that officials cannot create regulations that merely restate management prerogatives to render bargaining proposals nonnegotiable if such prerogatives do not inherently do so. Section 7117(a)(1) cannot be used to bypass other FSLMRS provisions, contradicting Defendants' assertions that Congress authorized the President to do so. The D.C. Circuit has emphasized the implausibility of Congress promoting collective bargaining while simultaneously allowing for a mechanism to negate it through government-wide rules. In the case of U.S. Department of the Treasury, IRS v. Federal Labor Relations Authority, the court found that an OMB circular directing agency prerogatives under the FSLMRS was a valid government-wide rule but clarified that it did not undermine collective bargaining rights. This ruling aligns with the interpretation that section 7117(a)(1) can guide existing management prerogatives without obstructing collective bargaining, as the circular addressed internal appeal processes rather than bargaining directly. The cases cited by Defendants do not support the authority to regulate collective bargaining scope through government-wide rules. Section 7117(a)(1) cannot be interpreted as granting the President the authority to undermine the right to collective bargaining as outlined in the Orders. The court references IRS, emphasizing that significant limitations exist on the government's capacity to reduce collective bargaining rights through broad regulations. Elevating section 7117(a)(1) above other statutory provisions would contradict Congress's intent to protect these rights. Defendants acknowledge the statutory limitations on the President's authority, yet their argument suggests that Congress intended to allow the President to eliminate workers' bargaining rights, which is inconsistent with the statute's purpose. Additionally, the Defendants assert that the Orders contain provisions that serve merely as guiding objectives, claiming they cannot conflict with the Federal Service Labor-Management Relations Statute (FSLMRS). However, this argument fails, as even flexible directives can violate the obligation to bargain in good faith mandated by the FSLMRS. The conflict isn't merely about specific bargaining requirements but rather involves the general statutory duty to negotiate in good faith. The court concludes that the President's guidance in these Orders impairs agency officials' ability to engage fully in collective bargaining discussions, regardless of whether the guidance is strict or merely suggestive. The inclusion of directives for agencies to fulfill their good faith bargaining duties does not negate the impairing effect of the President's guidance. Executive Orders Nos. 13,836 and 13,839 impose specific goals and mandatory reporting requirements that hinder genuine collective bargaining, as clarified in Part IV.D.3. The D.C. Circuit has established that good faith bargaining requires more than superficial negotiation, and the Court has determined that the policies outlined in these executive orders do not fulfill the statutory obligation to bargain in good faith. The coercive nature of the directives undermines agency negotiators' ability to engage fully in negotiations, despite a later directive to comply with the Federal Service Labor-Management Relations Statute (FSLMRS). However, not all challenged provisions in these orders violate rights protected under the FSLMRS or the Civil Service Reform Act (CSRA). Specifically, Section 5(c) of the Collective Bargaining Procedures Order, which allows federal agency representatives to consider filing unfair labor practices in response to union bad faith, is consistent with the FSLMRS. The FSLMRS permits such filings, and nothing in the order contradicts this authorization. Similarly, Section 2(j) of the Official Time Order and Section 2(c) of the Removal Procedures Order are found to express general policy principles without dictating specific outcomes, thus avoiding statutory conflicts. Items under section 2 are labeled as “policies” in contrast to “requirements” in other sections, indicating that they lack independent legal effect. Policy statements do not bind the public or the agency, which retains discretion to alter its stance, as established in Sierra Club v. Environmental Protection Agency. The Unions may lack Article III standing to contest these provisions, which require an invasion of a legally protected interest backed by specific factual evidence. Challenges regarding the President’s policy on “progressive discipline” are likely to fail since the Federal Service Labor-Management Relations Statute (FSLMRS) grants management discretion over such matters. The Unions contest section 4(b)(iii) of the Removal Procedures Order, stating agencies cannot bargain over proposals limiting their discretion to remove employees without progressive discipline. This aligns with FSLMRS provisions, particularly section 7106(a)(2), which exempts management's disciplinary powers from the duty to bargain. The Federal Labor Relations Authority (FLRA) has ruled that proposals mandating progressive discipline are nonnegotiable, affirming management's rights under section 7106(a)(2)(A). Consequently, the Unions’ challenges lack merit due to the Chevron deference afforded to FLRA decisions. Similar deficiencies exist in the Unions’ challenges to section 4(c) of the Official Time Order and section 7 of the Removal Procedures Order. Congress has empowered the Office of Personnel Management (OPM) to execute civil service rules and assist the President in this capacity. The President also has the authority to issue executive orders and delegate functions to department heads, including OPM. OPM has the authority to issue regulations that align with the FSLMRS and CSRA, even if some underlying mandates are invalid. The implementation of the President's Orders meets the requirements outlined in the Official Time Order and the Removal Procedures Order. One Union has raised a constitutional claim under the Take Care Clause, arguing that even if the executive orders do not conflict with statutory provisions, they still violate the President's duty to execute laws faithfully. This claim suggests that the President's interpretation and enforcement of the FSLMRS and CSRA lack good faith, thus breaching the Take Care Clause. However, the justiciability of such claims is uncertain, as highlighted in relevant case law. Even if some claims under the Take Care Clause could be viable, AFSCME's assertion is not sufficiently established. They contend that the President must engage in good faith negotiations and act accordingly when executing statutes. The record does not provide evidence of bad faith on the President's part, nor does it demonstrate that the Orders exceed his statutory authority in a way that implicates constitutional duties. The court notes that not every action exceeding statutory authority constitutes a constitutional violation. Additionally, several provisions of the President’s Orders improperly exercise statutory authority related to federal employee labor relations by conflicting with the right to good-faith collective bargaining. Nonetheless, the court will not invalidate the Orders in their entirety, as the President intended for any invalid provisions to be severable from the rest. The Court determined that the remedy for the case must be limited to what is necessary to address the issues at hand. The challenged provisions of the executive orders, discussed in Part IV.E, were found to be valid, allowing them to remain in effect alongside unchallenged parts of the orders. In the cross-motion for summary judgment, Defendants argued that differences between the President's policies and the Plaintiffs' preferences do not warrant judicial review. However, the Court recognized that the Unions' core claim is that the President’s executive orders conflict with Congressional policy preferences, which is valid. The Federal Service Labor-Management Relations Statute (FSLMRS) aims to protect the collective bargaining rights of federal workers, reflecting Congress’s belief in the public interest of labor organizations and collective bargaining. The Court found that while the President has the authority to issue executive orders, several challenged provisions of these orders diminish the collective bargaining rights established by Congress and hinder good faith negotiations. Consequently, the Court will invalidate specific provisions of Executive Orders 13,836, 13,837, and 13,839 while allowing certain other provisions to remain, as they do not infringe upon the rights protected under the FSLMRS. The parties' cross-motions for summary judgment were granted in part and denied in part.