ON AUGUST 25, 2018, A U.S. DISTRICT JUDGE HAS INVALIDATED PROVISIONS OF THREE EXECUTIVE ORDERS ISSUED BY PRESIDENT DONALD TRUMP THAT APPLY TO FEDERAL EMPLOYEES AND THEIR FEDERAL EMPLOYEE UNIONS.

In a Memorandum Opinion dated August 25, 2018, U.S. District Court Judge Ketanji Brown Jackson, an appointee of President Barak Obama, invalidated provisions of three executive orders issued by President Donald Trump that impacted the bargaining powers of federal employee labor unions.  AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO, et.al. v. DONALD J. TRUMP, et al., No. 1:18-cv-1261 (KBJ)  United States District Court for the District Of Columbia, https://ecf.dcd.uscourts.gov/cgi-bin/show_public_doc?2018cv1261-58  The Challenged Executive Orders issued in May 2018 and are Executive Order 13,836 (“The Collective Bargaining Procedures Order”), Executive Order 13,837 (“The Official Time Order”), and Executive Order 13,839 (“The Removal Procedures Order”).

All three of the Executive Orders were meant to make “it easier for the government to dismiss federal employees for bad conduct or unsatisfactory performance at work, and they remove certain matters relating to the grievance process from the collective bargaining negotiations process.”  Opinion at p. 25.  In invalidating provisions of the three Executive Orders, the Judge focused on collective bargaining rights under the Federal Service Labor-Management Relations Act (“the FSLMRS”), 5 U.S.C. §§ 7101–7135.  Other provisions were not challenged by the Unions or passed muster through the FSLMRS lens.

The thrust of the Judge’s opinion concerned Unions and collective bargaining rights.  However, we represent individual employees, not Unions, so first discuss the specific provisions of Executive Order 13,839, the “Removal Procedures Order,” that were invalidated.  Judge Brown declared Sections 3, 4(a), and 4(c) of Executive Order (EO) 13,839 to be invalid.  Opinion at page 119.

Section 3 of EO 13,839 is titled “Standard for Negotiating Grievance Procedures and provides, in part, that:

“Whenever reasonable in view of the particular circumstances, agency heads shall endeavor to exclude from the application of any grievance procedures negotiated under section 7121 of title 5, United States Code, any dispute concerning decisions to remove any employee from Federal service for misconduct or unacceptable performance.”

Section 4(a) of EO 13,839 provides that no agency shall “subject to grievance procedures or binding arbitration disputes” the assignment of ratings of record; or the award of any form of incentive pay, including cash awards; quality step increases; or recruitment, retention, or relocation payments.

Section 4 (c) of EO 13,839 provides that no agency shall “generally afford an employee more than a 30-day period to demonstrate acceptable performance under section 4302(c)(6) of title 5, United States Code, except when the agency determines in its sole and exclusive discretion that a longer period is necessary to provide sufficient time to evaluate an employee’s performance.”

The above are specific provisions of one of the three Executive Orders that were invalidated. More generally, the reason that the Judge invalidated provisions of each of the three Executive Orders was that:

“In this Court’s considered judgment, the President is without statutory authority to promulgate directives that reduce the scope of the statutory right to bargain collectively that Congress enacted in the FSLMRS; and, indeed, there appears to be no dispute that the President does not have the constitutional authority to override Congress’s policy choice (see Defs.’ Reply at 30–31).  Thus, the only challenged provisions of Executive Orders 13,836, 13,837, or 13,839 that can stand are those that neither contribute to a reduction in the scope of the collective bargaining that Congress has envisioned nor impede the ability of agencies and executive departments to engage in the kind of good-faith bargaining over conditions of federal employment that Congress has required.”

Opinion at pp. 33-34.

The Judge also held that she had jurisdiction to consider the claims of the Union in the first place, rejecting arguments that any review of the challenges must be through administrative review mechanisms set forth in the FSLMRS and the Civil Service Reform Act of 1978 (CSRA).  Opinion at p. 34.

These two issues of Presidential authority and jurisdiction promise for an interesting review upon appeal of the Judge’s decision.  And the inherent tensions between Presidential authority and rights provided through statutes and the United States Constitution are likely to be recurring themes in future challenges to Presidential Executive Orders and regulations.

This case about collective bargaining rights also encompasses some important rights concerning for federal employees.  The restraints on Presidential authority, but also the administrative mechanisms discussed in the Judge’s decision, statutes, and the U.S. Constitution each concern important rights of federal employees.

In closing, if you feel that your job is under threat, seek counsel of an informed attorney for individual cases to know what rights you have, and what rights you do not have.  Even if you do not plan to file an appeal or lawsuit, you want to a strategy and plan for yourself and your career, and in the best scenarios perhaps you want to resolve the issue without further conflict.

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