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Appeals Court Declines to Rehear Case Against Trump's Workforce Executive Orders

The decision marks a major blow to federal employee unions, which must now wait for agencies to implement three controversial executive orders and then challenge them before the Federal Labor Relations Authority.

A federal appeals court on Wednesday announced that it has declined to rehear federal employee unions’s legal challenge against three controversial workforce executive orders, dealing a significant blow to labor groups and likely triggering years of further litigation.

In July, a three-judge panel on the U.S. Court of Appeals for the D.C. Circuit overturned a district court decision blocking key provisions of the executive orders on jurisdictional grounds, finding that unions must first seek redress before the Federal Labor Relations Authority.

Trump’s executive orders, signed 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 and activities union members can spend on official time. But in August 2018, U.S. District Judge Ketanji Brown Jackson found that, taken together, the orders effectively “eviscerated” the right to collectively bargain in the federal sector.

Last month, the unions filed a request that all 11 judges on the D.C. Circuit rehear the case, citing irreparable harm if forced to go through a lengthy administrative review process and noting that the FLRA general counsel can effectively table any challenges indefinitely.

The court’s order declining to rehear the case was brief, and did not mention any reasoning for the decision. The rehearing request was considered a longshot, as appellate courts rarely agree to reconsider the rulings of three-judge panels.

In a statement, National Treasury Employees Union National President Tony Reardon expressed disappointment in the court’s decision and said the unions are consulting with each other on next steps.

“Unfortunately, this decision sets the table for years of chaos in the federal sector as we have to take our issues, piecemeal, through the Federal Labor Relations Authority,” Reardon said. “In the meantime, we are alarmed that the court-ordered injunction against many provisions of those orders may soon be lifted, subjecting federal employees to even more harmful actions by this administration.”

American Federation of Government Employees National President J. David Cox stated that he was outraged that “union busting” executive orders could soon go into effect.

“The court’s decision not to grant an en banc rehearing of this vitally important case with far-reaching effects across the federal government is a sad day for the country,” Cox said. “While we review our options, hundreds of thousands of federal government workers will suffer as their access to union representation at the worksite is stripped away by the implementation of President Trump’s union-busting executive orders.”

Barring further appeals, the injunction blocking implementation of the executive orders is set to be lifted within the next week.