In a victory for the Trump administration, a federal appeals court tossed a preliminary injunction that would have prevented the removal of bargaining rights from about 800,000 federal employees, including those at USDA's Food Safety and Inspection Service.
The 9th Circuit Court of Appeals in San Francisco ruled that the employees were not likely to succeed on their claims of retaliation by the administration, which has canceled contracts with bargaining units covered by the executive order.
The court had stayed enforcement of the injunction pending appeal on an emergency basis in August. The latest ruling is on the merits of the injunction.
The March executive order relied on the Federal Service Labor-Management Relations Statute (FSLMRS) to exclude certain agency employees from collective bargaining rights based on national security concerns – including those at FSIS and the Animal and Plant Health Inspection Service.
APHIS employees are represented by the National Agriculture Employees Union, which has filed a separate lawsuit challenging the EO.
The court said that based on the record, there wasn’t sufficient evidence of retaliatory conduct on the part of the administration. In short, it said that President Donald Trump would have done the same thing even if the American Federation of Government Employees and other unions involved in the case had not been critical of the administration.
The court also found that Trump has the authority under the FSLMRS to exclude agencies and their subdivisions from collective bargaining rights based on national security considerations.
“It is true that in the absence of a preliminary injunction, AFGE is likely to suffer some irreparable harm resulting from the loss of collective bargaining rights,” the court said in its opinion.
The court noted that when it granted a stay of the injunction pending appeal in August, “we relied on [the Office of Personnel Management’s] initial instruction to agencies to refrain” from terminating collective bargaining agreements.
“OPM has since changed its guidance, and we are informed that agencies have started to terminate certain CBAs,” the court said. “Although harm cannot overcome a lack of likelihood of success on the merits, this change in OPM policy means that AFGE has shown more likely harm now than it did before.”
AFGE vowed to continue with the litigation.
“This case is not over. The merits of this case are still very much alive,” AFGE President Everett Kelley said in a press release.
“The decision to vacate the preliminary injunction was based on the limited record before the court at this early stage,” he continued. “One judge wrote separately to emphasize that reviewing a preliminary injunction is a ‘distinction with a difference,’ and that a fully developed factual record may materially change the analysis.”
In addition, Kelley said the decision only addressed the First Amendment retaliation claim. “It does not resolve our statutory claims that the executive rrder exceeds the president’s authority under federal law.”
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