Decision Over-Turning Executive Orders Goes to Next Level Court

A District Court decision overturning major provisions of three Executive Orders has been appealed. Here is a summary of the arguments made by Justice Department.

The Department of Justice (DOJ) has filed a brief outlining its arguments before the Court of Appeals for the District of Columbia. The case concerns contents of Executive Orders regarding labor relations and other issues for the federal government’s workforce.

The district court in the District of Columbia issued a decision earlier this year overturning significant portions of the Executive Orders. The current appeal seeks to overturn that decision.

Basis for the Appeal

Case is in the Wrong Forum

The Justice Department argues that the attempt to overturn the Executive Orders is in the wrong forum. Instead of going to court, the case should have gone to the Federal Labor Relations Authority (FLRA) as intended by the federal government’s labor relations statute (FSLMRS).

According to the DOJ brief, “…the district court’s express and sole rationale for its decision was that the enjoined provisions ‘exceed the President’s statutory authority because they conflict with the letter and the spirit of the FSLMRS.’ ”

The FLRA resolves unfair labor practices which include allegations that an agency or union fails “to otherwise fail or refuse to comply with any provision of” the labor relations statute. The FLRA is “the expert agency that adjudicates claimed violations of the FSLMRS every day” and the case should not have been before the district court as the administrative remedy outlined in the labor relations law.

No Rationale for District Court Review

Where a statute provides administrative review and channels judicial review through the courts of appeals, as is the case with the FLRA, the Court “requires a strong countervailing rationale” before it will conclude that it is proper to file claims outside that administrative and allow a case to be taken to a district court.

DOJ argues there is not any rationale for taking this case into a district court instead of to the FLRA.

The FLRA has jurisdiction to consider the interaction between the FSLMRS and other statutes that give OPM and the President authority to prescribe regulations. The district was mistaken in concluding the FLRA could not decide the issues in this case. DOJ asserts that the FLRA has acknowledged it has the power to decide this type of case, and it has done so while expressly distinguishing the type of cases cited by the district court.

Avoiding FLRA Review Does Not Create Right to Go to Court

The action of filing the case immediately in district court allowed the unions in this case to preempt adjudication of the issues that should have gone before the FLRA. Deliberately evading the Congressional statutory scheme does not create a new right of review. Quoting from an earlier court decision, DOJ noted: “To hold otherwise would be to excuse non-compliance with the requirement that one must exhaust administrative remedies on the basis that the party failed to comply.”

The unions in this case are seeking a judgment they could obtain from the FLRA. That is, they wanted a decision on whether agencies implementing provisions of the Executive Orders violated the labor relations statute and wanted an order enforcing compliance. The remedies available under the FSLMRS include orders to refrain from bad-faith conduct or other violations of the statute, and orders to bargain over matters that are open to negotiation under the FSLMRS.

In this case, the district court enjoined Executive Order provisions because, in its view, they “conflict with the letter and the spirit of the FSLMRS.” That is what the FLRA had the authority to find had the case come before that administrative agency. Pursuing a decision in district court rather than before the FLRA was an attempt to “jump the gun and make an end run around” the review provisions of the labor relations statute.

Ignoring Expertise of the FLRA

This Court of Appeals in DC has recognized the FLRA has “primary responsibility for administering and interpreting” the FSLMRS. Since being established by the Civil Service Reform Act of 1978, it has developed “specialized expertise in the field of federal labor relations”—expertise that Congress intended for that agency to use “to give content to the statute’s principles and goals.”

For example, argues DOJ, the FLRA is “best positioned to determine whether, for example, the provisions of the Executive Orders that set presumptively reasonable goals inevitably lead, in all contexts, to agency negotiators bargaining in bad faith….”

Agency Negotiators Can Pursue Reasonable Goals While Bargaining

DOJ argues that goals established by the Executive Orders are reasonable and can be pursued while bargaining with a union in good faith. The goals at issue are:

  • It should “ordinarily” take six weeks or less to negotiate ground rules and four to six months to negotiate collective-bargaining agreement;
  • A negotiated “union time rate” of one hour of official time per employee per year in a bargaining unit, or more, “should … ordinarily not be considered” by an agency to be “reasonable, necessary, and in the public interest”; and
  • Agency heads shall endeavor to exclude from the application of any grievance procedures … any dispute concerning decisions to remove any employee from Federal service for misconduct or unacceptable performance.”

Achieving these goals requires good faith bargaining, according to the DOJ brief. “The district court nevertheless invalidated these provisions, in all of their applications, based on the court’s wholly unsupported speculation about how agency negotiators might (mis)apply these provisions in concrete bargaining contexts.”

In other words, an agency that engages in hard bargaining with a union is not violating the FSLMRS. The duty to bargain in good faith “does not compel either party to agree to a proposal or to make a concession.”

Permissive Bargaining and the Executive Orders

The statute provides that, “at the election of the agency,” certain matters may be subject to collective bargaining, such as the number of employees assigned to a work project.

An Executive Order from President Trump instructs agency heads to use their power under the labor relations law to elect not to negotiate over the permissive subjects.

President Clinton made use of his authority when he told agency heads  they “shall” negotiate over permissive subjects and “instruct subordinate officials to do the same.”

On this issue before the same Court, the decison concluded is was appropriate use of “the President’s authority ‘[t]o insure [his] control and supervision over the Executive Branch.’”

No Duty to Bargain on Government-Wide Regulations

The district court also declared invalid and enjoined provisions in the Executive Orders that create certain government-wide rules for all federal employees.

The FSLMRS notes that the duty to bargain with a union does include any matter “inconsistent with any Federal law or any Government-wide rule.” DOJ’s brief states “presidents of both parties have invoked their continuing authority to prescribe certain rules for federal employees via Executive Order, wholly independent of the collective bargaining process, in order to ensure proper management of the federal workforce.”

The district court in its decision invalidated several government-wide rules because, in the court’s view, it would violate the labor relations statute to “reduc[e] … the scope of the collective bargaining that Congress has envisioned.”

But, wrote DOJ, Congress envisioned that government-wide rules would do precisely that. The Court has previously concluded that the labor relations statute “essentially permits the government to pull a subject out of the bargaining process by issuing a government-wide rule.”


These Executive Orders have been controversial for federal employee unions as they would place restrictions on their influence in federal agencies. No doubt, it will be a few weeks before a decision by the Court is issued. FedSmith will alert readers and summarize the decision and its implications when the decision is made public.

DOJ Brief on Trump Executive Orders

About the Author

Ralph Smith has several decades of experience working with federal human resources issues. He has written extensively on a full range of human resources topics in books and newsletters and is a co-founder of two companies and several newsletters on federal human resources. Follow Ralph on Twitter: @RalphSmith47