Trump’s anti-union EO can remain in effect during challenge, appellate court says

A federal appellate court on Wednesday allowed President Trump’s executive order purporting to strip two-thirds of the federal workforce of its right to join and be represented by a union to go into effect while a legal challenge from the National Treasury Employees Union proceeds.

The March edict cited a rarely used provision of the 1978 Civil Service Reform Act to ban unions at most federal agencies under the guise of national security. But across multiple court cases, federal employee unions have argued successfully at the district court level that the measure is a mere pretext for retaliating against labor groups for fighting the White House’s personnel policies in court, in violation of the unions’ and their members’ First Amendment rights.

NTEU’s lawsuit over the executive order resulted in a preliminary injunction blocking its implementation from U.S. District Judge Paul Freidman in April. But in May, a three-judge panel on the U.S. Court of Appeals for the Washington, D.C., Circuit stayed that decision, concluding that the initial decision impeded on the legal deference afforded to presidents on national security matters, and that NTEU’s harm in the case was still “speculative” in nature.

The latter point is premised on the administration’s assertions that it has not, in fact, implemented the executive order since agencies have not formally repudiated their collective bargaining agreements with labor groups. But the administration, in many cases by its own admission, has disregarded the terms of those contracts, withdrawing from collective bargaining negotiations, ongoing grievance and arbitration proceedings and cancelling the automatic collection of union dues from employees’ biweekly paychecks.

Following the ruling of the three-judge panel, NTEU requested that decision be reviewed by all 11 judges on the D.C. circuit. But in an order Wednesday evening, the court reaffirmed the smaller panel’s decision. In a concurring opinion, U.S. Circuit Judge J. Michelle Childs, the dissenting jurist on the panel decision, said that despite her initial vote on the administration’s request for a stay, NTEU similarly failed to reach the bar needed to overturn a preceding decision.

“As I detailed in my dissent to that special panel’s order, I continue to believe that the government fell short of its burdens to show its own irreparable harm absent a stay pending appeal,” Childs wrote. “En banc consideration is rare, however, and this particular petition has not satisfied the high threshold for review by our full court.”

Though Childs’ concurrence was in relation to NTEU’s request for reconsideration, she stressed it applied to all who seek judicial stays, “including the government.”

“The core question [in stay requests] is thus whether the party moving for relief can wait until the litigation is resolved through the ordinary course or whether such a delay will cause injury to the party that cannot be remedied at the close of the case, even if the party were to prevail on the merits,” she wrote.” “[The] ordinary course is ordinary for a reason . . . Our appellate procedures are structured to allow us to review a complete lower court record, hear the parties’ positions, consider complex questions, and adjudicate a fair outcome. We take ‘extraordinary action’ to intervene in the ordinary course of an appeal only when the movant makes the ‘critical’ showing that it will suffer irreparable injury before the appeal concludes.”

In a separate case, the American Federation of Government Employees, who also succeeded in securing a preliminary injunction blocking the executive order’s implementation, will argue against the Trump administration’s request for a stay Thursday in the Ninth Circuit. Two jurists on that three-judge panel, which already has ordered a short-term stay in the case, were appointed during Trump’s first term.