Federal employee unions were dealt a blow Sept. 25 in their attempts to overturn provisions of three executive orders that would curtail the operating ability of union representatives and make it easier to fire federal employees.

The full panel of judges at the U.S. Court of Appeals for the District of Colombia denied the unions’ joint request for a rehearing of their lawsuit that claimed President Donald Trump’s three May 2018 executive orders violated legal statute and the intention of Congress.

The unions’ lawsuit met with early success in the courts, after a D.C Circuit Court judge ruled that significant provisions of the orders went beyond executive authority. But the appeals court later determined that the district court did not have the jurisdiction to rule on the case, and the unions should have gone through the Federal Labor Relations Authority for an opinion on federal agency enactment of the orders.

“The court’s decision not to grant an en banc rehearing of this vitally important case with far-reaching effects across the federal government is a sad day for the country. While we review our options, hundreds of thousands of federal government workers will suffer as their access to union representation at the worksite is stripped away by the implementation of President Trump’s union-busting executive orders," said American Federation of Government Employees National President J. David Cox Sr. in a statement.

Now that the application for a rehearing has been denied, the injunction preventing significant sections of those executive orders from being enacted will lift in one week, enabling the Trump administration to proceed with its planned workforce changes. The unions, meanwhile, have 90 days to decide whether they will pursue the case with the Supreme Court.

Should that case fail, or the unions choose not to pursue it, opposition to the orders will have to proceed through the FLRA, which could prove challenging, as the authority lacks a general counsel and its chairman has been accused of anti-union bias.

“We are, of course, disappointed that the full court of appeals declined the request to rehear our case against the president’s 2018 executive orders affecting the civil service. We are consulting with other unions who are involved in the case to decide next steps. Unfortunately, this decision sets the table for years of chaos in the federal sector as we have to take our issues, piecemeal, through the Federal Labor Relations Authority," National Treasury Employee Union National President Tony Reardon said in a statement.

"It is important to remember that the appellate court did not rule on the merits of our case against the executive orders, only jurisdiction. We still believe that these orders violate existing federal law and we will not relent on that argument, either at the FLRA or subsequently back in the courts. In the meantime, we are alarmed that the court-ordered injunction against many provisions of those orders may soon be lifted, subjecting federal employees to even more harmful actions by this administration. All Americans should be concerned that the executive branch is so eager to attack its own employees and weaken their legal right to collectively bargain.”

Jessie Bur covers federal IT and management.

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