Trump administration lacks standing to sue to enforce anti-labor executive order, union says

The nation’s largest federal employee union on Monday urged a federal judge in Texas to dismiss the Trump administration’s lawsuit against the labor group, arguing that the government lacks standing to sue.

Last month, President Trump signed an executive order citing a rarely used provision of the 1978 Civil Service Reform Act to exempt wide swathes of the federal government from federal labor law under the auspices of national security. Prior to Trump’s edict, the CSRA’s so-called national security exemption had only been used for the intelligence community and some pockets of federal law enforcement.

Fully 90 minutes before Trump’s order was published, the administration had already sued the American Federation of Government Employees in Texas—before a court with only one judge, a Trump appointee—and the National Treasury Employees Union in Kentucky, again before a court staffed solely by Republican-appointed judges. In those lawsuits, the White House said it was seeking a declarative judgment affirming the administration may legally rescind or otherwise repudiate collective bargaining agreements at the affected agencies.

While agencies have been advised not to repudiate any union contracts while the two suits against unions are pending, officials have taken other steps to strip employees at impacted agencies of their collective bargaining rights, such as ceasing the collection of union dues from employees’ paychecks. And last week, the Veterans Affairs Department seemingly acknowledged that it is retaliating against AFGE and other unions for their efforts to block administration workforce policies after it exempted some smaller labor groups from the executive order.

In a court filing Monday, AFGE urged U.S. District Judge Alan Albright to dismiss the case, arguing that the administration lacks standing and that a declarative judgment would amount to an advisory opinion, which is barred in federal courts.

“The Declarative Judgment Act was enacted to provide a judicial pathway when the plaintiff faces a specific kind of injury: ‘the Hobson’s choice of foregoing their rights or acting at their peril’ of being ‘subjected to some significant liability,’” the union wrote. “Here, the government faces no such peril. It has alleged no ongoing or prospective liability, financial or criminal, that the declaration it seems would redress.”

The administration’s lawsuit alleges three harms that it could incur absent a declaratory judgment in its favor: labor strife, having to abide by the terms of union contracts and the potential for litigation against the government. But the union said there is little threat of the first harm—federal workers already are banned from striking—and union contracts are legal documents willingly agreed to by the federal agencies.

“These alleged contractual restrictions, however, cannot confer standing because they are not imminent injuries, and they are not injuries caused by the actions of these defendants,” the motion states. “Rather, they are legally permissible contractual provisions, negotiated and agreed to by plaintiffs themselves, which have been in effect for decades. Moreover, because, according to the government’s own allegations, those CBAs, and any allegedly harmful provisions they contain, are already void under the executive order, any harm deriving from these contracts has already been remedied and a declaration from this court will therefore redress nothing."

No hearing dates have been set in the administration’s case against AFGE. The judge in NTEU’s lawsuit against the administration will hold a hearing on the union’s motion for a temporary restraining order blocking the executive order’s implementation is slated for Wednesday, while a hearing in the administration’s suit against NTEU is scheduled for Friday.