By Brian A Jackson /

Court Delivers Blow to Federal Unions Fighting Trump’s Workforce Orders

A three-judge panel found that federal employee unions should have gone to the FLRA with their legal challenges before filing a federal lawsuit.

The U.S. Court of Appeals for the D.C. Circuit on Tuesday overturned on jurisdictional grounds a court ruling blocking the implementation of three controversial executive orders taking aim at federal employee unions.

Last August, U.S. District Judge Ketanji Brown Jackson struck down the key tenets of three executive orders signed by President Trump in May 2018, finding that taken together, they “eviscerate” federal employees’ collective bargaining rights. Those orders sought to shorten the length of performance improvement plans to 30 days, exempt adverse personnel actions from grievance proceedings, streamline collective bargaining negotiation, and significantly reduce the number of work hours union members can spend on official time.

The Trump administration appealed that decision, arguing that federal employee unions must make any challenges to issues regarding labor-management relations first to the Federal Labor Relations Authority. A three-judge panel agreed.

“We reverse [the District Court decision] because the district court lacked subject matter jurisdiction,” wrote U.S. Circuit Court Judge Thomas B. Griffith. “The unions must pursue their claims through the scheme established by the statute, which provides for administrative review by the FLRA followed by judicial review in the court of appeals.”

The unions had argued that the FLRA, which adjudicates labor-management disputes and unfair labor practice complaints at federal agencies, could not provide meaningful review of their claims against the administration’s executive orders because it would be subject to those orders. And an appellate court would be bound to the FLRA’s own administrative jurisdiction, rendering it unable to rule on claims of constitutional or statutory violations.

But the Court of Appeals found that although judges previously found that to be the case, more recent Supreme Court rulings—Thunder Basin Coal Co. v. Reich and Elgin v. Treasury—allow the Court of Appeals to consider issues beyond the scope of an administrative body’s jurisdiction.

“Reviewing similar statutory schemes, the Supreme Court has explained that ‘it is not unusual for an appellate court reviewing the decision of an administrative agency to consider a constitutional challenge to a federal statute that the agency concluded it lacked authority to decide,’ ” Griffith wrote. “[We] see no reason why the scheme here would prevent us from resolving the unions’ constitutional or statutory challenges even if the FLRA could not.”

The judges encouraged unions to file unfair labor practices before the FLRA related to concrete instances of federal agencies’ efforts to implement the executive orders. But it is unclear whether such an avenue truly would result in an appeals court hearing the unions’ challenges.

The FLRA’s general counsel must vet all unfair labor practice complaints before they go before the FLRA board. But the agency has lacked a Senate-confirmed general counsel for more than two years—Catherine Bird, Trump’s pick for the post, was nominated in March, and she had a confirmation hearing in the Senate Homeland Security and Governmental Affairs Committee Tuesday morning.

Even if she is confirmed, the general counsel could choose not to issue any unfair labor practice complaint, effectively tabling any union challenge to the executive orders.

Suzanne Summerlin, associate general counsel for the National Federation of Federal Employees, blasted Tuesday's decision as “intellectually bankrupt.”

“We feel that the D.C. Circuit took the jurisdictional challenge as sort of an easy out, because they would have rather not dealt with the substantive challenges to the sitting president of the United States,” Summerlin said. “There is no way that the Federal Labor Relations Authority, which is made up of presidential appointees, can handle these questions. That’s not what they’re designed to do, and that’s not what the Constitution allows them to do . . . It would be the executive branch policing the executive branch.”

In a statement, American Federation of Government Employees National President J. David Cox said unions will continue to fight the executive orders' implementation using every legal avenue available to them.

"Today's terrible decision by the U.S. Court of Appeals for the District of Columbia is a tremendous blow to federal employees and their voice in the workplace," Cox said. "The decision is mistaken about the jurisdictional question, wrong on the law, and jeopardizes the rights of federal employees across the government . . . While we consider our legal options and next steps, we also call on members of Congress to stand with federal workers and protect our workplace rights."

National Treasury Employees Union National President Tony Reardon said his union will ask the full U.S. Court of Appeals for the D.C. Circuit to rehear the case.

"We do not believe the FLRA is equipped to consider our sweeping legal challenge to many different provisions contained in the orders," he said. "These orders go to the heart of the federal law that clearly states collective bargaining in the federal government is in the public's interest, and we believe that the federal district courts had the authority to invalidate the provisions of the orders that violate that statute."

Summerlin said as a practical matter, the decision is likely to drag out litigation over the executive orders for years, all while the administration is free to make sweeping changes to labor-management relations across the federal government.

“What they want us to do is somehow bring hundreds of individual challenges to every single agency that does anything in reaction to these orders,” she said. “This is not an efficient system of justice . . . The court said to come back to us after going through the administrative process, and that’s all fine and good, except that federal workers’ rights will be trampled in the meantime.”

This story has been updated to include additional comment from federal employee unions.