UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
AMERICAN FEDERATION OF )
GOVERNMENT EMPLOYEES, )
National Council of HUD Locals )
Council 222, AFL-CIO, )
)
Plaintiff, )
)
v ) Civil Case No. 19-1934 (RJL)
)
FEDERAL SERVICE IMPASSES )
PANEL, et al., )
)
Defendants. )
MEMORANDUM OPINION
Novembe, Pft;D*. ##23,421
This case presents two legal challenges to the composition of the Federal Service
Impasses Panel, a federal agency that helps to resolve bargaining impasses between public-
sector unions and federal government agencies. Plaintiff American Federation of
Government Employees, National Council of HUD Locals Council 222, AFL-CIO is a
federal public-sector union that came before the Panel as a result of its negotiations with
the U.S. Department of Housing and Urban Development over a new collective bargaining
agreement. In a challenge to the Panel's order setting ground procedural rules for the
negotiations, plaintiff contends first that Panel members are principal officers who were
appointed by the President without the advice and consent of the Senate, violating the
Appointments Clause, and second that when the Panel issued the relevant order, it was
composed of only four members, violating statutory quorum requirements for the Panel.
Before the Court are plaintifPs Motion for Summary Judgment lDkt. #231and defendants'
Cross-Motion for Summary Judgment [Dkt. #42]. However, since plaintiff first challenged
the Panel's order prescribing the ground rules, plaintiff has voluntarily complied with those
ground rules and has concluded negotiations on a new collective bargaining agreement.
Because plaintiff no longer suffers any injury from the Panel's order that is redressable by
this Court, this case must be dismissed as moot. Accordingly, defendants' Cross-Motion
for Summary Judgment [Dkt. #42] is GRANTED IN PART, and plaintiff s Motion for
Summary Judgment [Dkt. #231is DENIED
BACKGROUND
The Federal Service Labor-Management Relations Statute ("Statute"), Pub. L. No.
95-454,92 Stat. Illl (197 8), governs labor relations between public-sector unions and
federal agencies. 5 U.S.C. $$ 710l-7135. The Federal Labor Relations Authority
("Authority") is tasked with administering the Statute. 1d $$ 7104-7105. The Federal
Service Imirasses Panel ("Panel") is an entity within the Authority that is responsible for
resolving negotiation impasses between agencies and unions representing federal
employees. Id. 5 7119(c)(1).
In June 2llS,plaintiff American Federation of Government Employees, National
Council of HUD Locals Council 222, AFL-CIO ("Council222" or "plaintiffl') and the U.S.
Department of Housing and Urban Development ("HUD") began negotiating a new term
collective bargaining agreement to replace their previous agreement, which would expire
in July 201 8. Second Am. Compl. fllT 20, 22 lDkt. #141. However, on July 30,2018, HUD
asserted that the parties were at an impasse in negotiations over a "ground rules" agreement
2
that would govern the parties' negotiations for their collective bargaining agreement. Id.
fln2213. Accordingly, upon a request by HUD and over an objection by Council22L,the
Federal Service Impasses Panel asserted jurisdiqtion onNovember 15, 2018. Id.fln24-25.
The parties met with a mediator, who referred them to the Panel for resolution of an
impasse on all outstanding terms for the ground rules. Id.fln26-27 . On February 14,2019,
the Panel issued an order imposing ground rules for Council 222 and HUD's negotiations
that, according to Council 222,largely mirrored HUD's proposals. Id.nn32-33.
On June 27 ,2019, plaintiff Council 222 fiIeda complaint against the Federal Service
Impasses Panel, the current Panel Chairman Mark Anthony Carter, and the Federal Labor
Relations Authority (collectively, "defendants"), challenging the Panel's order as invalidly
issued because of the Panel's composition. See Compl. [Dkt. #1]. Plaintiff first argues
that Panel members are principal officers by virtue of their ability to "issue final and
binding decisions," their lack of "direct supervision," and their "power to hold hearings,
take testimony, and issue subpoenas." Second Am. Compl. fl 39. Plaintiff therefore
contends that the President's appointment of the Panel members without advice and
consent by the Senate violated the Appointments Clause. Id. ]n 38, 404L Plaintiff also
argues that when the Panel issued the relevant order, it was composed of only four members
rather than the seven members required by the Statute. See id. fln31,37 .
On September 6, 2019,I consolidated this case with a related case filed by the
American Federation of Government Employees, AFL-CIO. See 91612019 Min. Order.
Plaintiff filed an Amended Complaint, asserting three counts: (l) ultra vires action because
the Panel issued an order without seven members, (2) violation of the Appointments Clause
a
-)
because the Panel members were appointed without the advice and consent of the Senate,
and (3) violation of the Administrative Procedure Act because the Panel issued an order in
violation of the statutory quorum requirement. See Second Am. Compl.flfl 44-67 . Plaintiff
asserted that it was injured by the Panel's order because it had to pay the travel costs of its
bargaining team members. 1d. fl 35.
On October 11, 2019, defendants moved to dismiss the complaint for lack of
jurisdiction, arguing that Congress precluded judicial review of Panel orders in the Federal
Service Labor-Management Relations Statute, 5 U.S.C. $$ 7101-7135. See Defs.' Mot. to
Dismiss [Dkt. #20]. On November 1,2019, plaintiff both opposed the motion to dismiss
and moved for summary judgment. ,See Pl.'s Mot. for Summ. J. & Opp'n to Defs.: Mot.
to Dismiss ("PI.'s Mot.") [Dkt. #23). Upon defendants' motion, I stayed briefing on
plaintiff s motion for summary judgment pending a decision on defendants' motion to
dismiss. l2l5l20l9 Min. Order. After I denied the motion to dismiss on June 22,2020,I
set a briefing schedule for cross-motions for summary judgment. See 612212020 Min.
Order; 71612020 Min. Order;Defs.'Mot. for Summ. J. ("Defs.'Mot.") [Dkt. #42]. Briefing
concluded on August 31,2020, and defendants filed notices of supplemental authority on
September 22,2020 and October 14,2020.
In the meantime, however, the parties continued their negotiations on a new
collective bargaining agreement. Plaintiff did not challenge the Panel's order by refusing
to abide by it and triggering an unfair labor practice proceeding before the Authority, nor
did it move in this Court to stay the order's effect. ,See Defs.' Mot. at 14; Pl.'s Opp'n &
Reply at 12 [Dkt. #441. Plaintiff complied with the Panel's order regarding ground rules
4
for the negotiations and paid its bargaining team's travel costs. See Defs.' Mot. at 13; Pl.'s
Opp'n & Reply at7. The parties reached the end of the negotiations schedule outlined in
the Panel's order in January 2020 and then went to the Panel again in a dispute over certain
proposed articles for the collective bargaining agreement. Defs.' Mot., Ex. B, Letter,
Katherine Hannah to Kimberly Mosely (Jan. 10, 2020) ("Hannah Letter") [Dkt. #42-51
The Panel asserted jurisdiction on April 6,2020. ,See Defs.' Mot., Ex. C, Letter, Chairman
Mark A. Carter to Katherine Hannah and Ashaki Robinson (Apr. 6,2020) [Dkt. #42-6].
On August 12,2020, the Panel imposed terms for the remaining disputed articles for the
collective bargaining agreement. See U.S, Dep't of Housing & Urban Development & Am.
Fed'n of Gov't Emps., Council 222,20 FSIP 036 (Aug. 12,2020); see also Am. Fed'n of
Gov't Emps. v. Fed. Serv. Impasses Panel, No. 20-cv-2683, Compl. n36 &. Ex. I (D.D.C.
filed Sept. 21,2020) [Dkt. #2].
ANALYSIS
Defendants now contend in their motion for summary judgment that this case should
be dismissed as moot on the basis that no relief sought by plaintiff would remedy its alleged
injury. Defs.' Mot. at 11-13. Since it filed its complaint challenging the Panel's order in
June 2019, plaintiff has followed the terms of the ground rules agreement set by the Panel,
and the parties completed their collective bargaining agreement negotiations in January
2020. SeeHannah Letter at 1. Therefore, according to defendants, any remedy sought by
plaintiff would not address the injury it asserted: having to abide by the terms of the ground
rules agreement, such as paying travel costs, in their negotiations. Defs.' Mot. at ll-12.
Plaintiff asserts that this case is not moot because the defendants' actions continue to cause
5
injury and that the Court may vacate the ground rules agreement and put the parties back
in the same position. Pl.'s Opp'n & Reply at7-8.
"Article III of the Constitution limits the 'judicial power' of the United States to the
resolution of 'cases' and 'controversies."' Valley Forge Christian Coll. v. Ams. Unitedfor
Separation of Church & State, lnc.,454 U.S. 464, 471 (1982). The federal judiciary must
"confine[] itself to its constitutionally limited role of adjudicating actual and concrete
disputes, the resolutions of which have direct consequences on the parties involved."
Genesis Healthcare Corp. v. Symczyk,569 U.S. 66, 7l (2013). As Chief Justice Roberts
himself stated: "In our system of government, courts have no business deciding legal
disputes or expounding on law in the absence of such a case or controversy." Already,
LLC v. Nike, lnc.,568 U.S. 85, 90 (2013). This jurisdictional requirement is "especially
rigorous" in a case like the present one where "reaching the merits of the dispute would
force us to decide whether an action taken by one of the other two branches of the Federal
Government was unconstitutional." Raines v. Byrd,521 U.S. 81 1, 8 19-20 (1997). "[W]e
must put aside the natural urge to proceed directly to the merits of [an] important dispute
and to 'settle' it for the sake of convenience and efficiency ." Id. at 820.
"lA]n actual controversy must be extant at all stages of review, not merely at the
time the complaint is filed." Arizonans for Official English v. Arizona,520 U.S. 43,67
(1997) (quoting Preiser v. Newkirk, 422 U .5. 395, 401 ( 1975)). A case is moot "when the
issues presented are no longer 'live' or the parties lack a legally cognizable interest in the
outcome." Already, LLC,568 U.S. at 91 (quoting Murphy v. Hunt,455 U.S. 478, 481
(1982) (per curiam)). "No matter how vehemently the parties continue to dispute the
6
lawfulness of the conduct that precipitated the lawsuit," id., a case must be dismissed as
moot "[i]f an intervening circumstance deprives the plaintiff of a 'personal stake in the
outcome of the lawsuit,"' Genesis Healthcare Corp., 569 U.S. at 72 (quoting Lewis v.
Cont'l Bank Corp.,494rJ.S.472,478 (1990)), or "if an event occurs ... that makes it
impossible for the court to grant any effectual relief," Anderson v. Carter,802 F.3d 4, l0
(D.C. Cir. 2015). "The party seeking jurisdictional dismissal must establish mootness,
while the opposing party has the burden to prove thata mootness exception applies." Reid
v. Hurwitz, 920 F .3d 828, 832 (D.C. Cir. 20 I 9).
Upon consideration of the parties' briefing, the relevant law, and the entire record,
I have concluded that this case is indeed moot. Because plaintiff has complied with the
terms of the ground rules agreement and concluded its negotiations with HUD, it has no
injury that can be remedied by the relief it seeks. The only injury that plaintiff asserted in
its complaint was payment of the travel costs of its bargaining team members. Second Am.
Compl. tf 35. As relief, plaintiff sought a declaration that the Panel's order was ultra vires
and void, vacatur of the Panel's order, and a declaration that the Panel may not exercise its
jurisdiction until it is composed of at least seven members who have been appointed with
the advice and consent of the Senate. See id. at 12. Because plaintiff has already complied
with the ground rules, paid its team's travel costs, and concluded negotiations, this Court's
vacatur of the Panel's order would not remedy plaintiffls asserted injury. Nor is plaintiff s
request for declaratory relief sufficient to keep this case alive. "The real value of [a]
judicial pronouncement-what makes it a proper judicial resolution of a 'case or
controversy' rather than an advisory opinion-is in the settling of some dispute which
7
affects the behavior of the defendant towards the plaintiff ." Hewitt v. Helms, 482 U.S. 755,
761 (1987 ) (emphasis omitted). Neither declaratory relief, nor vacatur of the Panel's order
setting the ground rules for negotiations, would affect defendants' behavior as to plaintiff s
asserted injuries from the Panel's order, as the negotiations governed by the order have
concluded.
Moreover, the Court has no power to return the parties to the status quo ante, as
plaintiff suggests in its reply, see Pl.'s Opp'n & Reply at 6. In Anderson v. Carter,802
F.3d 4 (D.C. Cir.2015), our Circuit Court dismissed as moot a First Amendment challenge
to the U.S. military's media ground rules, explaining that "[t]here appears to be nothing
this court can do that will put [plaintiff] back in the same position he occupied before the
events alleged in the complaint." Id. at 10. In Anderson, the U.S. military had removed
the plaintiff from his position as a military-embed journalist for violating its media ground
rules. Id. at 6-7. In his complaint, the plaintiff had asked the district court to reverse the
termination memorandum and reinstate him as a military-embed journalist in Afghanistan.
Id. at 10. However, by the time the court heard the case, NATO had taken over operations
of the embed program, such that a court's reversal of the U.S. military's termination
memorandum would not grant the plaintiff a military-embed job with NATO and would
therefore not remedy his assertedinjury. Id. Here, like in Anderson, plaintiffs asserted
injury-its payment of travel costs for the negotiations-cannot be remedied by any relief
requested from this Court because those negotiations have concluded. Plaintiff did not
seek damages for those payments. See Second Am. Compl. at 12, Relief Requested (1)-
(7). Nor did plaintiff seek a stay of Panel proceedings or negotiations to ensure that the
8
parties remained at the status quo ante. The events have "outrun the controversy such that
the court can grant no meaningful relief." McBryde v. Comm. to Review Cir. Council
Conduct & Disability Orders of Jud. Conf. of U.5.,264 F.3d 52,55 (D.C. Cir. 2001)
(holding challenge to one-year and three-year bans on certain judicial conduct moot when
the bans had concluded before the court ruled). Accordingly, I must conclude that this case
is moot.
Of course, courts may still hear a mooted case if it falls under the narrow exception
of being "capable of repetition, yet evading review." Reid, g20 F .3d at 832. However, that
exception does not apply here. Under the first prong of that exception, "resolution of an
otherwise moot case must have 'a reasonable chance of affecting the parties' future
relations."' Newdow v. Roberts, 603 F.3d 1002,1008 (D.C. Cir. 2010) (quoting Clarke v.
United States,9l5 F.2d 699,703 (D.C. Cir. 1990)). Under the second prong, "the
challenged action fmust be] in its duration too short to be fully litigated prior to its cessation
or expiration." Weinsteinv. Bradford,423 U.S. 147,149 (I975). Plaintiff fails to establish
that its legal challenges satisff both prongs. How so?
First, even if we assume plaintiff s Appointments Clause challenge is capable of
repetition, as Panel members appointed without the advice and consent of the Senate
continue to issue decisions and orders that may affect plaintiff, plaintiff is barred from
asserting that this challenge evades review. See Newdow,603 F.3d at 1008. To claim that
oomake
a case evades review, a plaintiff must a full attempt to prevent [its] case from
becoming moot." Id, at 1008-09. Here, however, plaintiff did not seek a stay of the Panel's
order, as unions have done in other cases, see, e.g., Ass'n of Admin. Law Judges v. Fed.
9
Serv. Impasses Panel, No. 20-cv-1026, Mot. for Prelim. Inj. (D.D.C. filed Apr.24,2020)
[Dkt. #5]. "[A] litigant who could have but did not file for a stay to prevent a counter-party
from taking any action that would moot his case may not, barring exceptional
circumstances, later claim his case evaded review." Armstrongv. FAA,515 F.3d 1294,
1297 (D.C. Cir. 2008) (citing cases). In fact, since negotiations for the collective
bargaining agreement concluded, plaintiff Council 222 filed another suit raising the
Appointments Clause issue again and seeking to invalidate the Panel's order imposing
terms for the collective bargaining agreement. See Am. Fed'n of Gov't Emps. v. Fed. Serv
Impasses Panel, No. 20-cv-2683 (D.D.C. filed Sept. 21,2020). That case may well be a
meaningful avenue to review plaintiff s Appointments Clause challenge. See Finca Santa
Elena, Inc. v. U.S. Army Corps of Eng'rs,62F. Supp. 3d 1,4 (D.D.C. 2014). Regardless,
plaintiff s Appointments Clause challenge does not evade judicial review
Plaintiff s quorum challenge, on the other hand, does not even satisff the first prong
of being "capable of repetition." To establish that an issue is "capable of repetition," the
"same parties" must be likely to "engage in litigation over the same issues in the future."
See Senate Permanent Subcomm. on Investigations v. Ferrer,856 F.3d 1080, 1088 (D.C.
Cir.2017). The situation of having fewer than seven Panel members adjudicate a dispute
between Council 222 and HUD is not reasonably likely to occur again. Indeed, the Panel
currently has ten members. See Federal Service Impasses Panel Biographies,
https://www.flra.gov/fsipjanel_bios (last visited Nov. 15, 2020). Neither of plaintifls
two legal challenges satisfies the mootness exception for controversies that are "capable of
repetition, yet evading review."
10
CONCLUSION
For the above reasons, the Court must dismiss this case as moot. An appropriate
Order will issue with this Memorandum Opinion.
t
RICHARD J
United States District Judgq
11
American Federation of Government Employees v. Federal Service Impasses Panel
Combined Opinion