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By: FEDweek StaffA federal appeals court has rejected the administration’s request to speed up consideration of its challenge of a decision holding invalid major parts of a set of three executive orders—one focused on speeding up the disciplinary process while the other two focused on union-related issues, one primarily on the scope of bargaining and the other on the use of official time.
The Justice Department had asked the Court of Appeals for the District of Columbia Circuit to put the case on a fast-track schedule that would have allowed for oral arguments as soon as early in the new year, but the court held that there was not a “compelling reason” to do so.
The appeals court’s decision does not necessarily send a signal regarding the ultimate outcome of the suit brought by a coalition of federal employee unions. But it does likely mean that at a minimum, the lower court’s injunction against the provisions at issue will remain in effect for well into 2019.
The district court held that several of the provisions of those orders interfered with bargaining and other rights guaranteed to federal unions by civil service law, for example by imposing time frames on bargaining, limiting what management would negotiate over, and limiting the amounts and allowable uses of official time. OPM soon afterward told agencies to stop enforcing the enjoined portions of the executive orders but unions continue to complain that in some cases agencies are continuing to act as if those orders remain in effect by refusing to bargain over traditionally negotiable subjects.
The district court also held invalid several provisions aimed at speeding discipline on performance grounds, for example by limiting the opportunity for employees to improve. However, the ruling did not affect numerous other discipline-related provisions, including that agencies need not use progressive discipline, need not suspend an employee first if an infraction merits removal, and need not apply the same penalty used in a previous similar case involving another employee.
While those provisions were unaffected, it is unclear how much impact they are having. That could become clearer once some employee appeals of actions taken under those authorities start advancing through the grievance or MSPB systems; however, the scope of the grievance system is one of the matters at issue in the court case and the MSPB is currently not able to issue decisions because it lacks a quorum.
