Executive Order Litigation Update

NTEU has expanded its legal challenge to contest provisions in each of the Executive Orders issued on May 25, 2018. The court now expects to issue a ruling by the end of July 2018.

U.S. District Court, District of Columbia
U.S. District Court, District of Columbia

On June 15, 2018, NTEU filed an amended complaint over the above-described Executive Orders (EOs) in the U.S. District Court for the District of Columbia. As you will recall, NTEU’s June 6, 2018 complaint in that court challenged the EOs imposition of a 25% cap on the use of official time; the prohibition against using official time for lobbying; the ban on the use of official time by union representatives to prepare and present grievances; and a provision that would generally set performance improvement periods (PIPs) at 30 days and give agencies the sole and exclusive discretion to apply longer periods.

Our amended complaint broadens our legal challenge to encompass provisions in all three EOs issued by President Trump on May 25. The new claims cover the following topics:

  1. The one-hour per bargaining unit employee formula to be applied to set an aggregate cap on the use of official time;
  2. The limitations placed on unions’ use of agency facilities, such as office space and computers;
  3. The disregard of concepts of progressive discipline and the consistency of penalties with those imposed on others;
  4. The direction to press for the exclusion of removals from the scope of the negotiated grievance procedure;
  5. The prohibition against bargaining over the “permissive” subjects described in 5 U.S.C. 7106(b)(1); and
  6. The disruptive overall effect that the challenged provisions of the EO have on the statutory scheme that Congress enacted when it devised the Civil Service Reform Act.

Wooden gavelOn June 18, the parties had a telephonic conference with the judge assigned to handle NTEU’s complaint and complaints filed over the EOs by other unions. That conference resulted in the setting of a schedule for adjudication of our complaint. NTEU’s complaint, and those of the other unions, will now be subject to motions for summary judgment, which will be filed by the unions on June 25 and considered together on an expedited schedule. Briefing will be completed by July 24, and the court will conduct a hearing on the motions on July 25. The court currently expects to issue a ruling on all the union motions by the end of July 2018.

I will keep you informed of further developments in this matter as they occur.

Author: chapterpresident

I have worked in the FDA since 1990 in a variety of positions. I currently serve as chapter president of NTEU Chapter 254, representing FDA employees in Arkansas, Colorado, Iowa, Kansas, Missouri, Nebraska, New Mexico, Oklahoma, Texas, and Utah.