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Unions Urge Court Not to Lift Injunction on Workforce Executive Orders

Attorneys argue that the Justice Department failed to prove that the government would suffer “irreparable harm” if it had to wait 45 days before implementing the orders.

A group of federal employee unions on Friday filed a legal brief outlining its opposition to the Trump administration’s request last week that an injunction blocking implementation of three controversial workforce executive orders be lifted immediately.

Last month, a three-judge panel on the U.S. Court of Appeals for the D.C. Circuit overturned on jurisdictional grounds a 2018 District Court decision blocking the key provisions of President Trump’s workforce orders. The judges said that in order to challenge the legality of the orders, federal employee unions must first seek redress through the Federal Labor Relations Authority’s administrative review process.

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. In August 2018, U.S. District Judge Ketanji Brown Jackson ruled that taken together, those orders effectively “eviscerated” the rights of federal workers to bargain collectively.

The appeals court's recent ruling triggered a 45-day window during which federal employee unions could request a rehearing of the appellate case before all 11 judges on the D.C. Circuit, or appeal to the Supreme Court.

But last week, the Justice Department filed a motion requesting the court issue its mandate immediately and lift the injunction before the unions could take further action in the case. Administration attorneys argued that the government would suffer “irreparable harm” if required to wait for additional court proceedings, citing a number of ongoing collective bargaining agreement negotiations at federal agencies.

In a court filing Friday, the unions issued their response to that request, arguing that the administration’s claims are unsupported by the facts or by the administration’s own actions in court.

The unions noted that the circuit court had already denied previous efforts by the Justice Department to expedite the resolution of the case, and argued that the government’s claims of “irreparable harm” are unfounded.

“The injunction simply preserves the collective bargaining system that has been in place since 1978, with the exception of the month and a half that the executive orders were in effect,” the unions wrote. “While the appellants might be dissatisfied with this longstanding status quo and the district court’s invalidation of their attempt to alter it, the continuation of that dissatisfaction during the appeal is not irreparable injury.”

Attorneys also pointed to the Justice Department’s own arguments at the district court level that sought to downplay the significance and immediacy of the executive orders’ provisions, describing implementation as a “gradual process,” and noted that if the Justice Department believed that the government would suffer irreparable harm by the injunction, it should have requested a stay when it was first issued.

“Government counsel stressed to the district court that the executive orders would not substantially alter the collective bargaining landscape,” union attorneys wrote. “Counsel argued that ‘the orders themselves will not substantially affect any federal employees’ rights under any current collective bargaining agreement. Rather, the orders’ substantive provisions will begin affecting federal employees covered by collective bargaining agreements only as those CBAs come up for renegotiation.’ ”

The unions argued that the case fails to rise to the bar established for an immediate issuance of a mandate, specifically that the public has an “unusual interest in prompt disposition.”

“This litigation is of significant consequence to federal sector unions and the employees they represent,” the attorneys wrote. “The government makes no showing, however, that the general public is unusually affected by the injunction. This is not a case involving military or national security . . . The government does not explain how requiring agencies to negotiate with an open mind, as they have been statutorily required to do for 40 years, adversely affects the public.”

The court is likely to rule on whether to issue its mandate immediately in the coming weeks. Federal employee unions are expected to file a request by the end of August that the full D.C. Circuit Court rehear the case.