Federal appellate decision restores union rights for Defense Department teachers

A federal appellate court in Washington on Thursday declined to allow the Trump administration to ban collective bargaining at the Defense Department’s agency devoted to educating the children of active-duty service members at American military bases around the world while a lawsuit brought by three teachers’ unions proceeds.

The White House had appealed an August preliminary injunction blocking the implementation of a March executive order seeking to strip two-thirds of the federal workforce of its collective bargaining rights at the Defense Department Educational Activity and requested a stay, which effectively would allow the policy to proceed. The ruling was limited to DODEA and the Federal Education Association, FEA Stateside Region and the Antilles Consolidated Education Association, and does not protect unions elsewhere within the Pentagon or other federal agencies.

In that decision, U.S. District Judge Paul Friedman, writing his third decision in favor of federal labor groups this year, concluded that Trump exceeded his authority when he determined that around 14,000 K through 12th grade teachers were primarily engaged in national security work and thus incompatible with union representation. The U.S. Court of Appeals for the D.C. Circuit issued a brief delay earlier this month to solicit written arguments from the parties but effectively reimposed the injunction Thursday.

Writing for a two-vote majority on the three-judge panel, U.S. Circuit Judge Brad Garcia, a Biden appointee, focused on the burden that the government must meet to justify an administrative stay, which during the Trump administration has frequently meant allowing a policy to proceed.

“Assuming without deciding that the government is likely to succeed on the merits, it has not met its burden to separately demonstrate that it will face irreparable injury,” Garcia wrote. “That failure alone dooms its request . . . Here, the government’s allegation of irreparable harm is entirely untethered from the injunction the government asks us to stay.”

While Garcia bemoaned that Justice Department attorneys wrote “just one paragraph” in its request for a stay to explain how retaining unions at DODEA constituted an irreparable injury, he also took issue with the government’s more fulsome argument made at the district court level: that union activity could “divert resources” from educating children such as through increased need for substitute teachers and eventually influence military families to leave the service for better schools.

“We have long required stay applicants to show that their asserted injuries are imminent, in that those injuries would manifest to a meaningful extent during the pendency of the appeal,” Garcia wrote. “The government did not even attempt to demonstrate that the indirect effects on national security it posited could meet that standard, and it is far from self-evident that they would. Given all of that—and the fact that the government does not so much as mention this argument on appeal—we cannot conclude that the government has met its burden.”

Judge Karen LeCraft Henderson, a George H.W. Bush appointee, dissented, objected to the district court decision’s consideration of the national security designation of other agencies impacted by the executive order but not party to this case, such as the Environmental Protection Agency or the Federal Communications Commission, as part of its legal analysis.

“Rather than focusing on whether the DOD and DODEA satisfy [the law’s] ‘primary function’ requirement, the district court looked to the non-party departments and subdivisions that are excluded from [collective bargaining],” she wrote. “But because the plaintiffs represent employees of the DODEA alone, the record contains scant evidence regarding the functions of the other excluded agencies and subdivisions—which are neither plaintiffs nor represented by any union in the litigation . . . In essence, the district court aimed at non-targets and its errant aim cannot support an ultra vires claim against the president.”

And in a concurring opinion, Judge Florence Pan, a Biden appointee, disagreed with Henderson, arguing the district court came to the correct conclusion on whether the president exceeded his authority. The consideration of non-party agencies serves as evidence that Trump “never made the required [national security] determinations” at all, because their inclusion was due to “unrelated policy goals.”

“Here, we need not blindly accept the government’s dubious contention that a subdivision staffed by grade-school educators plays a prominent role ‘in support of DOD’s overall national security mission,’” Pan wrote. “Nor should we fail to probe the government’s conclusory assertion that the instant injunction ‘inflicts irreparable harm on the president by impeding his national-security prerogatives.’ It is the government’s burden to convince us that restoring union protections to federal employees focused on K-12 education will make the country less safe. Because the government fails to meet that burden, I disagree with our dissenting colleague’s unquestioning acceptance of the government’s implausible claim of irreparable harm.”