Justice Department Seeks to Fast-Track Its Appeal of Decision Striking Down Workforce EOs

By Brian A Jackson / Shutterstock.com

The Justice Department filed a motion Thursday asking for an expedited review of the government's appeal of a decision striking down the key provisions of three executive orders aimed at making it easier to fire federal employees and reducing the influence of labor groups at agencies.

On Tuesday, the Trump administration signaled that it would appeal the Aug. 24 ruling by U.S. District Judge Ketanji Brown Jackson that said President Trump exceeded his authority in ordering agencies to standardize performance improvement periods, set time limits on collective bargaining negotiations and severely limit the amount and scope of official time for union employees to perform representational duties.

In a filing Thursday, Justice Department lawyers said they want an expedited schedule for the appeal in the D.C. Circuit of the U.S. Court of Appeals that would complete all written arguments by Christmas, and offered a preview of the government’s potential case.

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The attorneys first noted that the administration maintains that any challenge to the executive orders must go to the Federal Labor Relations Authority, contending that body is the “expert agency” for disputes regarding the 1978 Civil Service Reform Act, the law Jackson concluded Trump violated. The more than a dozen federal employee unions that sued the administration argued the executive orders were outside of the scope of what the FLRA can weigh in on, and Jackson agreed.

The administration also plans to argue that the decision, which blocks the key provisions of the orders, prevents Trump from exercising constitutionally protected powers as president, and violates a provision of federal labor law that “the president may prescribe regulations for the conduct of employees in the executive branch.”

“The district court’s order declares provisions of three executive orders to be unlawful and permanently enjoins all of the president’s subordinates in the executive branch from enforcing or otherwise giving effect to those provisions,” the administration wrote. “The president is thereby disabled, with respect to the enjoined provisions, from exercising his authority under the Constitution and statute to superintend the executive branch.”

Attorneys argued that a blocked provision of the orders that would have restricted most collective bargaining negotiations to the exchange of written proposals should have been upheld, because “exchanging written proposals occurs in ‘most negotiations,’ helps ‘to facilitate communication’ . . . and can help ‘to objectively evaluate the parties’ good or bad faith.’”

They also characterized provisions that instructed agencies to remove various issues from the scope of grievance procedures in new collective bargaining agreements as requirements to “strive” toward administration policy goals. Jackson concluded those provisions were effectively edicts that would necessitate bargaining in bad faith with labor groups.

“The district court concluded that agencies would violate their duty to bargain in good faith under the statute if they entered negotiations seeking to achieve a goal, committed the time and resources necessary to achieve that goal, and reported to the president if negotiators were unable to achieve that goal,” the Justice Department wrote. “The district court enjoined several other similar goal-setting provisions of the executive orders on the same ground.”

The filing indicated that the federal employee unions are opposed to expedited review. In a statement, American Federation of Government Employees National President J. David Cox condemned the appeal.

“The administration's appeal filing is just another step in the administration’s relentless attacks on workers and the working class,” Cox said. “We call on the administration to do what is right: stop the ongoing harassment of federal employees, and support and restore all workplace rights. AFGE is steadfast in its mission to support federal employees. We will not back down in our effort to secure better pay, workplace conditions and rights for not just our members, but for every federal employee.”

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