The provisions of three executive orders signed by President Donald Trump in May 2018 that target the collective bargaining negotiations between agencies and federal unions now have a path to go back into effect, under a July 16 ruling by the D.C. Circuit Court of Appeals.

The District Court of Washington, D.C., which first ruled that Trump overstepped Congress’s intent when laying out collective bargaining legislation, did not have the authority to strike down provisions of the three union-targeting executive orders, according to the appeals court ruling, issued by Judge Thomas Griffith.

“We reverse because the district court lacked subject matter jurisdiction. The unions must pursue their claims through the scheme established by the Statute, which provides for administrative review by the [Federal Labor Relations Authority] followed by judicial review in the courts of appeals,” Griffith wrote.

Lawyers from the Trump administration argued in April 2019 that unions should pursue a case against the implementation of the orders through the FLRA for adjudication, rather than contesting the legal authority of the orders themselves through the court system.

But union lawyers argued that the FLRA can’t adjudicate a claim made against the president himself.

According to Griffith’s ruling, “Congress may preclude district court jurisdiction by establishing an alternative statutory scheme for administrative and judicial review,” as they did in establishing the FLRA.

The initial district court ruling argued that the claims brought against the executive orders are “not of the type” that Congress intended to go before the FLRA.

The appeals court, however, found that all considerations that would theoretically allow the unions to pursue their case in the courts instead “demonstrate that the unions must pursue their claims through the statutory scheme and not before the district court.”

“This means that the enjoined provisions will be in effect, despite their obvious conflict with federal statute,” said Debra D’Agostino, a founding partner at the Federal Practice Group, in a statement.

“We anticipate that the unions will challenge the Executive Orders through a petition to the FLRA, after which the unions could appeal to the D.C. Circuit to re-visit the legality of the provisions at issue.”

Effectively, this means that the unions could end up exactly where they began, with a judge ruling that the executive orders are invalid, but only after going through the process of filing through and being heard by the FLRA.

Meanwhile, the FLRA has been closing regional offices over the past couple of years. The agency also lacks a General Counsel confirmed by the Senate, meaning that unfair labor practice charges cannot be issued.

“Today’s terrible decision by the U.S. Court of Appeals for the District of Columbia is a tremendous blow to federal employees and their voice in the workplace. The decision is mistaken about the jurisdictional question, wrong on the law and jeopardizes the rights of federal employees across the government. We will fight this decision using every legal tool available to us," said American Federation of Government Employees National President J. David Cox Sr. in a statement.

“While we consider our legal options and next steps, we also call on members of Congress to stand with federal workers and protect our workplace rights. The union-busting framework laid out in the executive orders and the actions already taken at the bargaining table so far demonstrate clearly that there must be a check on the president’s power to destroy federal employees’ union rights.”

Individual agencies have in the past few months been pursuing the spirit of the executive orders while their official authority has bee curtailed by the courts by restricting things like official time and employee telework in their collective bargaining contracts with unions.

“Since the president signed these orders more than a year ago, we have seen multiple attempts by political appointees in various agencies to run roughshod over the rights and benefits of their own workforce, which only provides further evidence that the administration is intent on silencing workers and weakening their rightful union representation,” National Treasury Employee Union National President Tony Reardon said in a statement. “NTEU will never stop fighting for the dignity and respect that federal employees deserve.”

He added that his organization would “pursue every legal avenue” to stop the executive orders and that FLRA would be unequipped to address the “sweeping legal challenge” contained in the orders.

“This fight isn’t over,” said Paul Shearon, president of the International Federation of Professional and Technical Engineers, in a statement. “The intent of Congress, to enable free collective bargaining for federal workers, is clear and unambiguous. We’ll consider every option available to uphold the law and exercise our rights.”

Jessie Bur covers federal IT and management.

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