The Trump administration has appealed a federal court’s ruling invalidating key portions of three executive orders on disciplinary and union matters, an action that while not unexpected likely will further roil an already confused and contentious situation.
The Justice Department has filed a notice of appeal with the U.S. Court of Appeals for the District of Columbia although it did not include specific grounds for challenging the lower court’s rulings that certain provisions of the orders violated the Civil Service Reform Act. Those provisions affected matters including an opportunity for employees to show improvement before being disciplined on performance grounds and numerous restrictions on unions, including the amounts and allowable uses of official time and limits on what is negotiable.
The notice of appeal starts a potentially lengthy process at the appeals court which could include a request to block the lower court’s order during the challenge. It also raises the prospect that the losing side there will appeal on to the U.S. Supreme Court, a process that could take several years.
Shortly after the lower court’s ruling OPM instructed agencies to no longer enforce the affected provisions, and several agencies also sent similar internal directives. The notice of appeal gave no indication of a plan to change those orders. However, unions contend that even with those orders in place, agencies are being slow and reluctant to return to the prior policies.
The AFGE union has filed a motion with the court asserting that a VA facility with which it was bargaining is continuing to act as if the executive orders were fully in effect by continuing to insist that union officials get agency permission in advance before using official time. The Justice Department responded by asserting that the union failed to negotiate over the dispute before going to federal court.
AFGE also asserts that the CDC and its parent HHS are continuing to stick to bargaining positions envisioned by the executive orders that the court barred, including new limits on official time as well as rolling back provisions in previous agreements on issues such as grievances, telework and alternative working schedules. It further has enlisted the support of three Democratic senators who wrote the Education Department to reverse its decision to impose a contract with similar restrictions, an action it took even before the executive orders were issued.
Meanwhile the NTEU union has gotten similar support from three Democrats in the House and Senate who oversee another HHS component, the FDA, who urged that management restart negotiations that it broke off after making similar proposals.
Further, the ranking Democrat on the House Oversight and Government Reform Committee, Rep. Elijah Cummings of Maryland, has asked for a subpoena to have OPM director Jeff Pon testify on the administration’s steps to comply with the court. Earlier he had requested an informal briefing, which he said OPM refused to provide. However, the decision on a subpoena would be up to committee chairman Rep. Trey Gowdy, R-S.C.