19-4143-cv
SEIU Local 200 v. Trump


                          UNITED STATES COURT OF APPEALS
                              FOR THE SECOND CIRCUIT

                                 August Term 2019

            (Argued: August 25, 2020        Decided: September 16,2020)

                               Docket No. 19-4143-cv



    SERVICE EMPLOYEES INTERNATIONAL UNION LOCAL 200 UNITED, SERVICE
                   EMPLOYEES INTERNATIONAL UNION,

                                                     Plaintiffs-Appellants,

                                          v.

DONALD J. TRUMP, PRESIDENT OF THE UNITED STATES OF AMERICA, MICHAEL J.
  RIGAS, ACTING DIRECTOR OF THE OFFICE OF PERSONNEL MANAGEMENT,
           UNITED STATES OFFICE OF PERSONNEL MANAGEMENT,

                                                     Defendants-Appellees. *



                 ON APPEAL FROM THE UNITED STATES DISTRICT COURT
                      FOR THE WESTERN DISTRICT OF NEW YORK




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.
Before:
                     WINTER, RAGGI, and CHIN, 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.



                          DANIELLE LEONARD, 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.




                                          2
                          JOSEPH F. BUSA, 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 CURIAM:

             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




                                          3
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.


                                            4
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, 

, 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., 

, 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, 

, 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, 

(D.D.C. 2018), rev'd and vacated, 

, 754
(D.C. Cir. 2019).
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