Government argues it would suffer “irreparable harm” if required to wait 45 days before an existing injunction against three controversial executive orders is lifted.
This story has been updated to include comment from federal employee unions.
The Trump administration on Tuesday asked the U.S. Court of Appeals for the D.C. Circuit to immediately lift an injunction blocking three workforce executive orders, rather than provide the customary 45-day grace period for federal employee unions to file a request that the court rehear the case.
Last week, a three-judge panel overturned a decision by U.S. District Judge Ketanji Brown-Jackson that President Trump’s executive orders cracking down on unions at federal agencies “eviscerated” the right to bargain collectively. The appeals court found that the district court had lacked jurisdiction over the case. Instead, the appellate court said unions must challenge the provisions of the executive orders first before the Federal Labor Relations Authority, whose decision could be appealed back to the circuit court.
The circuit court is slated to issue its mandate—the enforcement mechanism that would lift the district court’s injunction on the workforce orders—in 45 days, or seven days after the disposal of an appeal or request for rehearing by all of the circuit’s 11 judges. The federal unions involved in the case are expected to make that request in the coming weeks.
But the Justice Department on Tuesday filed a motion to issue the mandate that would allow implementation of the executive orders immediately, arguing that agencies would suffer “irreparable harm” if required to wait for additional court proceedings. Attorneys said that waiting 45 days would negatively impact agencies in their ongoing collective bargaining negotiations.
“Because of the to-be-vacated injunction, officials who are presently engaged in collective bargaining on behalf of federal agencies are prohibited from relying on the executive orders as a basis for complying with the president’s directive to, where reasonable, strive to achieve presumptively reasonable goals,” the attorneys wrote.
The three executive orders, signed by President Trump in May 2018, sought to shorten the length of performance improvement plans to 30 days, exempt adverse personnel actions from grievance proceedings, streamline collective bargaining negotiations and significantly reduce the number of work hours union members can spend on official time.
The administration cited three instances where it argued delaying the implementation of the executive orders would harm agencies’ ability to negotiate with unions: at the Office of Personnel Management and the Veterans Affairs and Housing and Urban Development departments.
“Indeed, we are informed by the Office of Personnel Management that it has bargained to impasse while operating under the injunction and that it has been released to submit any remaining disputes to the Federal Service Impasses Panel for final resolution,” the administration wrote. “Absent relief from this court, there is a risk that the impasses panel may resolve those remaining disputes and bring an end to the collective bargaining process before the agency will have had the opportunity to negotiate or take positions before the impasses panel free from the restrictions of the injunction that this court has already unanimously held must be vacated.”
The administration argued that lifting the injunction immediately would actually help federal employee unions, because it would allow them to file complaints with the FLRA faster.
“Freeing agency negotiators from the restrictions of the erroneously issued injunction will enable those negotiators to implement the challenged provisions of the executive orders in collective bargaining, which may generate the kind of ‘concrete bargaining disputes’ with union negotiators that will enable plaintiffs to present their claims to the Federal Labor Relations Authority,” the attorneys wrote.
A Government Executive analysis of FLRA processes suggests that even if federal employee unions were able to immediately file complaints with the labor authority challenging the executive orders, it could take a year or longer for the FLRA to issue a decision.
In a statement Wednesday, National Treasury Employees Union National President Tony Reardon said unions would fight the effort to lift the injunction immediately.
"The federal court's injunction of major provisions in the president's executive orders trampling the rights of federal employees should remain in place as long as this entire issue is pending in court," Reardon said. "We strongly oppose the administration's effort to lift the injunction and we will be filing our written arguments to that effect by next Friday, Aug. 2. The government has offered no basis for the appellate court to deviate from the normal timelines for appellate review. The three-judge appeals court decision last week was based on a threshold jurisdictional determination, not the merits of our argument that the executive orders clearly conflict with existing law."