An appeals court ruling on Thursday overturned a lower court ruling that allowed 21 federal agencies to maintain their collective bargaining rights after an executive order signed by President Donald Trump sought to strip those rights from the federal workforce last year.
After San Francisco U.S. District Judge James Donato agreed with the American Federation of Government Employees (AFGE) and other unions that Trump’s order from last year likely violated the law, a three-judge panel at the Ninth Circuit Court of Appeals vacated that preliminary injunction.
That preliminary injunction ordered by Donato was stayed by the appeals court in July, which lasted until last week.
The decision affects nearly 1 million federal workers. Employees impacted by Thursday’s decision include those at: The Office of Personnel Management, Environmental Protection Agency, U.S. Agency for International Development, National Science Foundation, International Trade Commission, General Services Administration, and Social Security Administration.
It also applies to the departments of State, Defense, Treasury, Veterans Affairs, Justice, Health and Human Services, Homeland Security, Interior, Energy, Agriculture, Labor, Housing and Urban Development, Transportation, and Education.
The suit, led by AFGE and five other unions, claimed that the stripping of collective bargaining rights was a retaliatory act by Trump in response to a flurry of suits filed by those agencies in the wake of numerous executive orders that the unions alleged were illegal.
In its ruling on Thursday, the appeals court said it had concluded that the unions had failed to show a likely First Amendment retaliation claim because – on the record so far – the government demonstrated that Trump would have issued the order anyway based on stated national security concerns.
The Trump administration argued that the Federal Service Labor-Management Relations Statute gave Trump the authority to ban collective bargaining for agencies that dealt with matters of national security.
Notably, the appeals court did not issue a final verdict on whether the executive order is ultimately lawful. The court said that based on the early record in this still-unfolding case, unions haven’t met the high bar for keeping the order blocked while the lawsuit continues.
In a statement following the decision, AFGE National President Everett Kelley said, “This case is not over. The merits of this case are still very much alive.”
“Importantly, the Ninth Circuit agreed with AFGE on a critical issue. The court held that federal district courts have jurisdiction to hear this challenge. That is a precedent-setting victory,” Kelley explained.
Kelley said that the court’s decision only addressed the unions’ First Amendment retaliation claim and did not address their statutory claim that Trump’s order exceeded the president’s authority under federal law. “As this case proceeds, additional evidence will be presented,” he said.
In the meantime, Kelley said that AFGE is “considering whether to seek en banc review of this decision while simultaneously returning to the district court to continue litigating this case on the merits.” An en banc review would mean that a federal appeals court would rehear a case before a larger group of judges to resolve a major legal issue.
“We are confident that when the full record is developed, we will prevail. We will continue to build our case and pursue every legal avenue available,” Kelley said.
A separate challenge to Trump’s order is also playing out in Washington, D.C., where U.S. District Judge Paul Friedman issued injunctions that, in narrower slices of the fight, temporarily preserved bargaining rights for certain union-represented workers at agencies including the EPA, Coast Guard, and parts of the Defense and Energy departments.