DC Circuit grills DOJ over Trump move to gut federal workers' bargaining rights

WASHINGTON (CN) — A D.C. Circuit panel on Monday seemed likely to strike down a series of executive orders by President Donald Trump exempting nearly two-thirds of the federal workforce from their collective bargaining agreements.

The three-judge panel heard arguments in three consolidated cases challenging the president’s use of an exemption under the Federal Service Labor-Management Relations Statute, meant for agencies and subdivisions with a primary national security function, to cancel their collective bargaining agreements.

A trio of employee unions — the American Foreign Service Association, the National Treasury Employees Union and the Federal Education Association — each sued Trump over his exempting 18 federal agencies and 25 agency subdivisions from labor protections under the Civil Reform Act of 1978.

The unions argue that under the March 27 executive order, “Exclusions from Federal Labor-Management Relations Programs,” Trump failed to make the proper determinations to identify specific offices with primary national security functions, instead painting a broad brush to weaken federal-sector unions that have challenged other executive actions in court.

In a separate Aug. 28 executive order, Trump further moved to exempt the U.S. Agency for Global Media, NASA, the National Weather Service, the International Trade Commission, the National Environmental Satellite, Data and Information Service and the Office of the Commissioner for Patents.

Justice Department attorney Joshua Koppel argued that Trump acted well within the law and exercised his discretionary national security authority, pointing to the 1919 Supreme Court decision in Dakota Central Telephone Company v. South Dakota.

There, the high court rejected a challenge against the president’s authority to take control of the state’s telegraph and telephone systems during World War I, finding that the court could not review such presidential discretion.

U.S. Circuit Judge Neomi Rao noted that U.S. District Judge Paul Friedman ruled the president was not entitled to the “presumption of regularity” — a legal doctrine that affords the executive branch a certain amount of deference based on the assumption officials follow the law — due to his animus against the employee unions.

Rao, a Trump appointee, pressed Koppel on how far the presumption should reach and how the court should define it, suggesting it may have to be both consistent with the law and reasonable, the latter of which would prohibit clear animus.

Koppel rejected the assertion that Trump had displayed animus in his executive order but argued that, even if he had, he met the requirements of the federal labor relations statute by making his determination.

Senior U.S. Circuit Judge Douglas Ginsburg seemed skeptical that Trump had conducted a properly tailored analysis, pointing out an apparent delegation to the secretary of defense and the secretary of veterans affairs to undo any exemptions for subdivisions that do not have a primary national security function.

Ginsburg, a Ronald Reagan appointee, said the delegation suggested Trump’s exemptions were clearly overbroad.

U.S. Circuit Judge Bradley Garcia, a Joe Biden appointee, followed that point and noted Friedman had found Trump’s “determinations” did not properly consider each agency and subdivision’s national security duties.

Friedman had pointed to an attached White House fact sheet, which explicitly targeted the federal unions that have “declared war on President Trump’s agenda,” with the goal of ending “union obstruction.”

Koppel said the unions have not shown that the fact sheet was written or reviewed by the president, and thus the statements within cannot be attributed to him.

Garcia seemed taken aback by the statement, asking how else he and his colleagues could determine how the president defined national security without engaging in a deeper review.

Koppel had argued that neither the D.C. Circuit nor the U.S. District Court for the District of Columbia was the proper venue to hear such a challenge against Trump’s executive order. He maintained that Congress specifically created the Federal Labor Relations Authority to hear union grievances, and the matter should be resolved there.

There, an employee or union can file a charge with the authority, which would then be investigated by its general counsel, who may then file a complaint against the agency before the labor authority. In most cases, a final order by the labor authority could be appealable.

Garcia expressed concern that the Trump administration’s jurisdictional argument would then be reversed if the panel agreed and remanded, where the administration would then argue before the labor authority that it could not review Trump’s decision.

Koppel replied that the labor authority at least has jurisdiction to consider whether it does have jurisdiction over such challenges, and such a decision could potentially be appealed to a federal circuit court.

Ginsburg followed up on Garcia’s point and noted that the government’s theory would effectively foreclose the employee unions’ arguments outright.

“The consequence of that is that there’s no forum for their other arguments, their constitutional arguments, their ultra vires[beyond one’s powers] and so on,” Ginsburg said. “We’ve never said, ‘You go rely on an unfair labor practice proceeding, even though if no complaint issues from the general counsel, you’ll never have a forum for your other claims.”

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