Legal brief filed ahead of Wednesday’s court hearing says the claims are "hypothetical," since OPM has not issued regulations to finish implementation of the orders.
Attorneys for the government plan to argue Wednesday that a federal court lacks jurisdiction to hear a legal challenge against President Trump's recent workforce executive orders, and that unions were premature in filing the challenge.
But a cursory look at the actions taken by the Trump administration and federal agencies since the orders’ enactment in May calls those claims into question.
In a document filed July 16, the administration argued that the U.S. District Court for the District of Columbia is not the proper venue for challenging the executive orders, which seek to streamline the firing process, exempt adverse personnel actions from grievance procedures, speed up collective bargaining negotiations and limit union employees’ ability to use official time.
Instead, the administration stated, any challenges of the executive orders must go through the Federal Labor Relations Authority and, if necessary, the U.S. Court of Appeals.
“In enacting the [1978 Civil Service Reform Act], Congress designated the Federal Labor Relations Authority and the courts of appeals—not the district courts—as the proper forums to adjudicate claims of the sort plaintiffs advance here,” the government wrote. “Because Congress intended that these challenges be channeled through this dedicated review mechanism, culminating in judicial review in a court of appeals, this court lacks jurisdiction to hear these consolidated cases.”
But the FLRA can only hear cases if they are vetted and brought forward by the FLRA general counsel, a position for which Trump has not nominated a candidate. Federal employment lawyers and observers have accused the White House of intentionally keeping the job unfilled so as to prevent review of alleged unfair labor practices, and have suggested unions and employees could begin to directly file litigation as a result.
Additionally, in a legal brief responding to the administration’s arguments, the American Federation of Government Employees argued that the FLRA can only review an individual agency's implementation of a policy governing the federal workforce for “negotiability,” not the legality of the policy itself. And an appeal of any FLRA decision on that basis in federal court would be similarly limited in scope.
“AFGE is challenging the facial validity of the order itself,” the union wrote. “[This] is important because the FLRA lacks the power to pass on the underlying legality of an executive order . . . Likewise, any eventual judicial review of an unfair labor practice decision or negotiability determination by the FLRA would be limited . . . to review of the FLRA’s order.”
The administration also argued that the legal challenge is premature, since the Office of Personnel Management has not formally issued new regulations to finish implementation of the executive orders. The government said union complaints about the outcomes of the orders were “hypothetical.”
“Although the requirements [of the order] went into effect on July 9, 2018, only when OPM has finalized its regulations to ‘administer those requirements of this section’ might there be sufficiently final agency actions fit for judicial review,” the government wrote. “[Judicial] review is inappropriate at least until these administrative processes are complete.”
But OPM issued guidance on how to implement many of the provisions of the executive orders earlier this month, and agencies already have taken action to restrict employees’ ability to use official time, frequently circumventing the renegotiation process suggested in the orders. Unions representing employees at the Social Security Administration, the Veterans Affairs Department, Housing and Urban Development, and the Bureau of Prisons have all reported management actions to unilaterally restrict the use of official time or to evict unions from agency office space.
AFGE noted several examples of agency implementation efforts, and argued that OPM’s own guidance suggests that the orders are to be implemented immediately, despite the possibility that the agency could issue future regulations on the issue.
“[The administration] manages not even the barest rebuttal to AFGE’s argument, or the facts supporting it, that agencies are presently implementing the official time order without waiting to engage in collective bargaining, and certainly without waiting for [OPM] to issue implementing regulations,” the union wrote. “[They] merely assert that ‘prudential’ considerations warrant delaying this court’s review because OPM may issue implementing regulations.”