Court Issues Delay on Lifting Injunction of EO’s

On July 16, 2019, the Court of Appeals for the DC Circuit issued a decision that overturned a District Court decision issued in August 2018. The earlier decision was issued by the D.C. District Court and it issued an injunction to preclude Federal Agencies from implementing a number of provisions in three executive orders addressing labor relations institutional issues and were intended to make the system for removing federal employees quicker and easier.

The latest decision from the higher court reversed the District Court decision. But, with our complicated system of resolving disputes, that does not end the issue.

While the recent decision from the Court of Appeals reversed the injunction against the Executive Orders, the same Court of Appeals also issued another document. This other document orders “that the Clerk withhold issuance of the mandate herein….” This later document (at end of this article) reads, in its entirety:

It is ORDERED, on the court’s own motion, that the Clerk withhold issuance of the mandate herein until seven days after disposition of any timely petition for rehearing or petition for rehearing en banc. See Fed. R. App. P. 41(b); D.C. Cir. Rule 41. This instruction to the Clerk is without prejudice to the right of any party to move for expedited issuance of the mandate for good cause shown.

In effect, while the Court of Appeals has determined that the injunction against the Executive Orders in question was improper, the injunction has not yet been lifted. The language of the Court order appears to encourage further litigation and delay the implementation of the decision until “after disposition of any timely petition”.

No doubt, whether there is a good case to be made or not, federal employee unions will continue to appeal in hopes that they can delay the Executive Orders until after the next presidential election.

So, the fight over the Executive Orders will continue on. Democrats in Congress beholden to the union money and publicity efforts will issue their own press releases supporting the union attempts to delay or prevent issuing the Executive Orders. It is possible the House will pass a bill that would restrict implementing the Executive Orders. Any such bill is unlikely to pass in the Senate and would probably be vetoed in any event.

The work of the federal government will continue. As a result of the latest court decision, the Federal Labor Relations Authority (FLRA) is likely to be presented with cases and issue decisions on issues such as the legitimacy of the Executive Orders and shape the role of unions in the federal government as was intended by the Civil Service Reform Act of 1978.

Accompanying Order to Case 18-5289 by FedSmith Inc. on Scribd