May Day: Federal Judge Backs Federal Workers Union and Enjoins Executive Order

On March 27th, the President issued an Executive Order entitled Exclusions From Federal Labor-Management Relations Programs (the EO). That same day, the Office of Personnel Management (the OPM) issued a Guidance on Executive Exclusions from Federal Labor Management Programs (the OPM Guidance) implementing the EO.

Last Friday, in a two page Order in National Treasury Employees Union v. Trump, Judge Paul Friedman (below right) enjoined the defendants from effectuating Section 2 of the EO and enjoined the defendants from effectuating the OPM Guidance. The President was excepted from the scope of the injunction. I’m not sure what that means, and the explanatory opinion doesn’t explain. Judge Friedman’s explanatory opinion followed on Monday.

Section 1 of the EO determines that branches of the federal government listed in Sections 2 and 3 of the EO “have as a primary function intelligence, counterintelligence, investigative, or national security work.” Section 2 lists  some agencies for which the statement seems preposterous, e.g.: Health and Human Services, the Department of Agriculture, Department of Commerce, the EPA, the National Science Foundation, the FCC, the General Services Administration, the Social Security Administration, and the Office of Personnel Management. Section 1 then provides that Chapter 71 of title 5, United States Code, which allows for collective bargaining and union representation for federal authorities, cannot apply to employees in the listed agencies.

The OPM Guidance implements the EO and other policies of the current administration designed to strip federal workers of job security and protections that have become a standard part of federal employment law since World War II. Among other things, it clarifies that the purpose is to facilitate the termination of federal employees deemed to be “underperforming.” The OPM Guidance directs agency heads to cease participating in grievance procedures and arbitrations provided for in collective bargaining procedures. With respect to on-going arbitrations, they are to cease and the employees are to be terminated.

In his 46-page opinion issued on April 28th, Judge Friedman, laid out the clear inconsistency between Congress’s directive in the 1978 Federal Service Labor-Management Relations Statute (FSLMRS) and the EO, which effectively deprived 2/3 of the federal workforce of their rights to collective bargaining. The FSLMRS took national security into account and empowered the President to suspend the rights protected in the statute on national security grounds. Presidents have done so in the past, but not in a way that approached the scope of the EO.

As is its wont, the Administration’s first response is to contend that its actions are not reviewable by the District Court. Rather, the National Treasury Employees Union (NTEU) must pursue its claims using the administrative review scheme that Congress created, the Federal Labor Relations Authority (FLRA). That would be true, Judge Friedman noted, except that the EO itself removes the agencies and subdivisions at issue in this case from the FSLMRS, thus stripping the FLRA of jurisdiction to hear complaints brought by NTEU employees in those agencies and subdivisions.

Sure, the Administration countered, if the NTEU tried to challenge the EO in the FLRA, that claim would dismissed for wont of jurisdiction, but then the NTEU could appeal that decision to a U.S. Court of Appeal. Judge Friedman noted that the government’s argument misses the point. Because the effect of the EO is to remove the case from the jurisdiction of the FSLMRS, nothing bars the District Court from exercising jurisdiction.  Some day, someone will write a Catch-22-style black comedy about the Administration’s standard moves to evade review of its lawlessness.

On the merits, things get really interesting. The meat of the opinion focuses on the NTEU’s likelihood of success on the merits. In a similar case from the Reagan era, the D.C. Circuit upheld President Reagan’s exclusion of the U.S. Marshall service from the protections offered by the FSLMRS. The District Court had struck down President Reagan’s Executive Order because he had provided no justification for the move. The D.C. Circuit reversed, according the President the “presumption of regularity.”  Here, Judge Friedman analyzed two issues: 1) whether the current EO was entitled to a presumption of regularity, and 2) whether the President had acted ultra vires. 

Judge Friedman found that the NTEU had rebutted the presumption of regularity by presenting clear evidence that “the President was indifferent to the purposes and requirements of the [FSLMRS], or acted deliberately in contravention of them.” This was so because, the EO contradicts Congressional findings from the FSLMRS and because the EO’s purposes were retaliatory and designed to effectuate policy goals unrelated to the FSLMRS. On the final point, the OPM Guidance is telling, as it makes scant reference to national security, the supposed animating purpose behind the EO. Rather, it emphasizes the need to eliminate bloat, waste, and inefficiency in the federal government, returning to its DOGE-inspired mantra.

The rebuttal of the presumption of regularity suffices to justify the grant of the injunction that NTEU sought. However, Judge Friedman also concluded that the EO was ultra vires because it provided no ground for thinking that any of the affected agencies and subdivisions have “national security work” as their “primary function.” The EO arrives at this conclusion by defining the relevant terms so broadly as to encompass virtually any governmental function. The remaining factors of the test for granting a preliminary injunction go pretty quickly, once the likelihood of success on the merits has been established.

The NTEU’s work in briefing these issues is impressive. Overcoming the presumption of regularity and persuading a court to overrule executive determinations regarding national security is no small task. In introducing each section Judge Friedman notes how high a mountain NTEU has to climb in order to prevail in its arguments. But Judge Friedman carefully scales those heights, relying on close readings of strong precedents as he ascends.

There has never been a more anti-union President. There has never been a more anti-worker President. There has never before been a President who cared so little about the plight of ordinary employees. Prior to the election, 60% of members of the Teamsters Union supported the current President. How do they like him now? Perhaps they think that it will all be worth it when manufacturing jobs to the U.S. We’ll have to watch and wait to see how that goes.