The appeals case on whether or not President Donald Trump had the authority to issue executive orders contradicting government collective bargaining law may hinge on whether the unions have the ability to file a lawsuit with the courts in the first place.

Gregory O’Duden, counsel for the National Treasury Employee Union, noted following an April 4 appeals hearing that the three judges spent a lot of time focused on the technical, jurisdictional aspects of whether the District Court or Federal Labor Relations Authority could decide on the case.

Trump signed three executive orders in May 2018 that limited the use of official time at government agencies and set certain standards for agency bargaining with unions.

Federal employee unions — the American Federation of Government Employees and the National Treasury Employee Union — quickly filed suit with the District Courts, claiming that the orders violated collective bargaining rights protected by federal statute.

Judge Ketanji Brown Jackson ruled in August of that same year that significant portions of the orders did in fact violate statute, striking down those sections and preventing agencies from enforcing them.

But an administration appeal of that decision claims that the District Court had no authority to rule in the first place, and employee unions should have brought their complaints to the FLRA for adjudication.

“The plaintiff’s chief complaint about all of these provisions is that when agencies implement them, they will thereby violate the Federal Service Labor Management Relations Statute by one, bargaining in bad faith; and two, refusing to bargain over properly negotiable subjects. Those are precisely the type of labor relations disputes that can and must be brought before the Federal Labor Relations Authority for initial administrative adjudication,” government counsel Joseph Busa said at the April 4 appeals hearing.

“They can obtain precisely the relief that they want from the FLRA.”

The FLRA has the authority to determine when a federal agency policy or supervisor at a particular agency has violated labor relations statute.

“I think your strongest point is hypothetical,” said Judge A. Raymond Randolph. “If the union wants to bargain over a permissive subject and the agency head says that ‘we can’t do that, we’ve got an executive order that says that we are not allowed to bargain over permissive subjects.’ And then the union sues in district court, brings the same suit as brought here. Now, we wouldn’t allow that because that’s an end runaround of the jurisdiction of the FLRA.”

O’Duden said that if he had encouraged the union to pursue a case with the FLRA first “somebody should have filed malpractice against us.”

At issue is whether FLRA has any authority to rule on a case against the president himself.

“The case here is against the president of the United States. They can’t, the unions can’t bring a claim before the agency against the president of the United States,” said Randolph.

“This is a facial challenge to the president’s executive orders,” agreed Judge Thomas Griffith. “Where is the place for the unions to bring that if not the District Court?”

A facial challenge calls into question the legality or constitutionality of a rule itself, rather than the implementation or enforcement of that rule.

An FLRA case would have to address enforcement.

AFGE counsel Andres Grajales said that the union case was “very much a facial challenge.”

But Busa contended that the FLRA does, in fact, have the authority to determine the validity of an executive order by issuing a cease-and-desist order on a case involving the executive order.

Robert Tobias, a distinguished practitioner in residence at American University’s Department of Public Administration and Policy and fromer NTEU president, said after the hearing that he was “surprised that FLRA could decide that the executive order was invalid.”

“I don’t think anybody’s ever said that before,” he added.

O’Duden said that he expects a decision on the appeal before the end of June this year.

Jessie Bur covers federal IT and management.

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