Service Employees International Union Local 200 United , Service Employees… v. Donald J. Trump , President of the United States of America, Michael J. Rigas,…

19-4143-cv
SEIU Local 200 v. Trump
U NITED S TATES C OURT OF A PPEALS
F OR THE SECOND C IRCUIT
August Term 2019
(Argued: August 25, 2020 Decided: September 16,2020)
Docket No. 19-4143-cv
SERVICE E MPLOYEES I NTERNATIONAL U NION LOCAL 200 UNITED , SERVICE
EMPLOYEES I NTERNATIONAL UNION,
Plaintiffs-Appellants,
v.
DONALD J. T RUMP , P RESIDENT OF THE UNITED S TATES OF AMERICA, MICHAEL J.
R IGAS, ACTING DIRECTOR OF THE OFFICE OF P ERSONNEL M ANAGEMENT,
UNITED S TATES OFFICE OF P ERSONNEL MANAGEMENT,
Defendants-Appellees.*
O N A PPEAL FROM THE U NITED S TATES D ISTRICT C OURT
FOR THE WESTERN D ISTRICT OF NEW Y ORK
1 Pursuant to Federal Rule of Appellate Procedure 43(c)(2), Acting Director of the
Office of Personnel Management Michael J. Rigas is substituted for former Director Dale
Cabaniss. The Clerk of Court is respectfully directed to amend the caption as set forth
above.

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2
Before:
W INTER , R AGGI, and C HIN, Circuit Judges.
Appeal from a decision and order of the United States District Court
for the Western District of New York (Elizabeth A. Wolford, J.) denying
plaintiffs-appellants' request for a preliminary injunction to enjoin the
implementation of three Executive Orders relating to federal labor-management
relations. Plaintiffs-appellants contend that the district court erred when it
concluded that it lacked subject matter jurisdiction over their substantive
Administrative Procedure Act claim and that their procedural Administrative
Procedure Act claim was not likely to succeed on the merits.
AFFIRMED.
D ANIELLE L EONARD, Altshuler Berzon LLP, San
Francisco, California (Barbara J. Chisholm,
Altshuler Berzon LLP, San Francisco, California;
Nicole G. Berner and Claire Prestel, Service
Employees International Union, Washington,
D.C.; Catherine Creighton, Creighton, Johnsen &
Giroux, Buffalo, New York; and Mairead E.
Connor, Law Offices of Mairead E. Connor,
PLLC, Syracuse, New York, on the brief), for
Plaintiffs-Appellants.

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JOSEPH F. B USA, Attorney (Mark B. Stern, Attorney, on
the brief), for Ethan P. Davis, Acting Assistant
Attorney General, Civil Division, United States
Department of Justice, Washington, D.C., and
James P. Kennedy, Jr., United States Attorney for
the Western District of New York, Buffalo, New
York, for Defendants-Appellees.
PER C URIAM :
Plaintiffs-appellants Service Employees International Union Local
200 United and Service Employees International Union (together, the "Unions")
appeal from a decision and order of the District Court for the Western District of
New York issued December 10, 2019, denying their request for a preliminary
injunction to enjoin defendants-appellees President Donald J. Trump and
Michael J. Rigas, Acting Director of the Office of Personnel Management
("OPM"), from implementing certain Executive Orders (the "Orders") relating to
federal labor-management relations. The Unions alleged violations of the
Administrative Procedure Act, 5 U.S.C. § 551 et seq. (the "APA") and the Civil
Service Reform Act, 5 U.S.C. § 7101 et seq. (the "CSRA"). On appeal, the Unions
argue that the district court erred when it concluded that (1) it lacked jurisdiction

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over their substantive APA claim; and (2) their procedural APA claim was not
likely to succeed on the merits. We affirm.
The Orders were issued by President Trump in May 2018 and
related Guidances issued by OPM in July 2018.1 Broadly speaking, the Orders
and Guidances address collective bargaining, work time for representational
activities, and discipline and discharge.
On August 13, 2019, the Unions filed their complaint below
challenging the Orders and Guidances on several grounds, including that they
violated procedural and substantive provisions of the APA, and seeking
declaratory and injunctive relief. The Unions moved for a preliminary injunction
on September 12, 2019, and a temporary restraining order on September 26, 2019.
The district court denied the Unions' motion for a temporary restraining order on
October 3, 2019, and denied their motion for a preliminary injunction on
December 10, 2019. With respect to the preliminary injunction, the district court
1 The three Orders are EO No. 13,836: Developing Efficient, Effective, and Cost-
Reducing Approaches to Federal Sector Collective Bargaining, EO No. 13,837: Ensuring
Transparency, Accountability, and Efficiency in Taxpayer-Funded Union Time Use, and
EO No. 13,839: Promoting Accountability and Streamlining Removal Procedures
Consistent with Merit System Principles. The three Guidances are Guidance for
Implementation of Executive Order 13,836, Guidance for Implementation of Executive
Order 13,837, and Guidance for Implementation of Executive Order 13,839.

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held that (1) it lacked subject matter jurisdiction over the Unions' substantive
APA claim; and (2) the Unions' procedural APA claim was unlikely to succeed
on the merits because the Guidances were not subject to notice-and-comment
rulemaking as the Orders were "presumptively legally binding" and the
Guidances "did nothing more than summarize the legally binding . . . Orders." S.
App'x at 17–18. This appeal followed.
We review the district court's denial of a preliminary injunction for
abuse of discretion. See N. Am. Soccer League, LLC v. U.S. Soccer Fed'n, 883 F.3d
32, 36 (2d Cir. 2018). "A district court abuses its discretion if it (1) bases its
decision on an error of law or uses the wrong legal standard; (2) bases its
decision on a clearly erroneous factual finding; or (3) reaches a conclusion that,
though not necessarily the product of a legal error or a clearly erroneous factual
finding, cannot be located within the range of permissible decisions." Klipsch
Grp., Inc. v. ePRO E-Commerce Ltd., 880 F.3d 620, 627 (2d Cir. 2018). We review the
district court's legal conclusion as to whether subject matter jurisdiction exists de
novo and factual findings in connection with that determination for clear error.
See Cohen v. Postal Holdings, LLC, 873 F.3d 394, 398 (2d Cir. 2017).

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After an independent review of the record and relevant case law, we
affirm for substantially the reasons set forth by the district court in its carefully
reasoned December 10, 2019 decision and order.2
CONCLUSION
Accordingly, the decision and order of the district court is
AFFIRMED.
2 These same Orders and Guidances were recently challenged in the D.C. District
Court, with the D.C. Circuit Court holding that the existence of administrative review
by the Authority precluded district court jurisdiction. See Am. Fed'n of Gov't Emps.,
AFL-CIO v. Trump, 318 F. Supp. 3d 370 (D.D.C. 2018), rev'd and vacated, 929 F.3d 748, 754
(D.C. Cir. 2019).

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