Ninth Circuit lifts block on Trump limits to collective bargaining for federal workers

(CN) — The Ninth Circuit on Thursday cleared the way for President Donald Trump’s executive order curbing collective bargaining rights at certain federal agencies, finding a coalition of unions are unlikely to succeed on their First Amendment claims.

“Turning to the merits, we conclude that on this record, AFGE has not demonstrated a likelihood of success or serious questions on the merits of its retaliation claim,” U.S. Circuit Judge Daniel Bress, a Trump appointee, wrote for a three-judge panel. 

On March 27, Trump issued an executive order titled “Exclusions from Federal Labor-Management Programs,” which exempted certain federal agencies from Chapter 71, Title 5 of the U.S. Code — a federal law that outlines the rights of federal employees to organize, join or assist labor unions “without fear of penalty or reprisal,” and establishes procedures for collective bargaining between federal agencies and unions.

A coalition of unions — National Nurses United, Service Employees International Union, National Association of Government Employees, the National Federation of Federal Employees, the American Federation of Government Employees and the American Federation of State, County & Municipal Employees. — sued in April. 

The unions claim Trump’s order stripped them of their protections under federal law in retaliation for criticizing his efforts to “decimate the federal workforce” with mass firings and “fundamentally restructure the federal government,” using the national security argument as an excuse.

In June, U.S. District Judge James Donato, a Barack Obama appointee, blocked the executive order, finding that federal workers had raised a “serious question” that their First Amendment rights had been violated by the White House.

The Ninth Circuit then paused the injunction while the government pursued its appeal, and on Thursday vacated the preliminary injunction.

“Assuming without deciding that AFGE has made out a prima facie case of retaliation, we conclude, as we did when we stayed the district court’s injunction pending appeal, that ‘on this record the government has shown that the president would have taken the same action even in the absence of the protected conduct,’” Bress wrote.

The panel found Trump’s executive order “discloses no retaliatory animus on its face.”

“It instead expresses that the president’s primary — if not only — concern with union activity was its interference with national security,” Bress wrote.

Bress noted there are various reasons why an executive order would include some agencies and subdivisions but not others.

“Even assuming EO 14,251 is over- or under-inclusive, it does not follow that the president would only have issued this executive order because of his purported retaliatory animus,” Bress wrote. “We need not infer the most jaundiced, retaliatory account of the president’s actions without greater support in the record.”

And, even had there been some degree of discriminatory animus in the order, Bress noted there was still substantial support for the finding that Trump still would have issued the order regardless of the unions’ speech. 

A preliminary injunction would harm the United States, the court determined.

“That is particularly true here, where the government’s interest in ensuring the nation’s security is ‘an urgent objective of the highest order,’” Bress wrote. 

The unions are likely to suffer irreparable harm in the absence of a preliminary injunction through the loss of collective bargaining rights, Bress noted. Initially, the Office of Personnel Management — one of the defendant agencies — instructed agencies to hold off on terminating collective bargaining agreements, but later changed course and certain agreements have started to be terminated.

“But despite the change to OPM’s guidance, it remains the case that the harm to the unions would likely be mitigated to a fair extent by reinstating the terminated agreements if the union plaintiffs were to prevail,” Bress wrote.

The unions expressed confidence that they will prevail when a full record is developed and their remaining claims are addressed.

“This case is not over. The merits of this case are still very much alive,” American Federation of Government Employees national president Everett Kelley said in a statement. “We will continue to challenge unlawful overreach in court. And we will continue to make clear that weakening the federal workforce weakens the services the American people depend on every day. This fight is far from over.”

U.S. Circuit Judges John Owens, a Barack Obama appointee, and Bridget Bade, a Trump appointee, joined the opinion.

The federal defendants did not respond to a request for comment.