After President Donald Trump issued executive orders in May 2018 regarding employee and labor relations, several unions filed lawsuits in district court to challenge provisions in the three orders. Those suits were consolidated at the district court in June 2018.
In its August 2018 decision, the district court found several provisions in the executive orders unlawful and ordered agencies to cease implementation of those provisions. The government appealed the district court decision. This summer the United States Court of Appeals for the D.C. Circuit found that the district court lacked jurisdiction to hear the unions’ claims and vacated the district court judgment.
The court of appeals noted that the Federal Service Labor-Management Relations Statute, while granting federal employees the right to organize and bargain collectively and requiring that unions and federal agencies negotiate in good faith over certain matters, expressly did not limit “any function of, or authority available to, the president which the president had immediately before its effective date.”
The appeals court also noted that the FSLMRS established “a scheme of administrative and judicial review” that featured adjudication of federal labor disputes by the Federal Labor Relations Authority.
And thus, the appeals court held that the “unions must pursue their claims through the scheme established by the statute, which provides for administrative review by the FLRA followed by judicial review in the courts of appeals.” In sum, the appeals court found that the unions had gone into court too soon, not having first used a statutory process to challenge the EO’s at the FLRA.
So, where does this leave enforceability of the executive orders? In full force and effect. And with this loss in the court of appeals, my hunch is that the administration will double down on its use and enforcement of both EO’s. The unions may have tried to attain a quick judicial win, but it now appears it was at the cost of a year or more delay in starting the correct process for a legal challenge.
Debra Roth is a partner at Shaw Bransford & Roth, a federal employment law firm in Washington, D.C. Email your legal questions to email@example.com.