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Ninth U.S. Circuit Stays Preliminary Injunction Against Enforcement of Trump Executive Order
By a MetNews Staff Writer
The Ninth U.S. Circuit Court of Appeals late Friday granted the government an emergency stay, pending appeal, of a preliminary injunction blocking enforcement of an executive order issued by President Donald Trump barring union activity among employees of several arms of the federal government.
Enacted in 1978, the Federal Service Labor Management Relations Statute (“FSLMRS”) declares that “labor organizations and collective bargaining in the civil service are in the public interest” but, in the national interest, expressly bars union efforts at several federal agencies including the Federal Bureau of Investigation, the Central Intelligence Agency, the National Security Agency, and the Secret Service. The FSLMRS authorizes the president to bar unionizing at other agencies that have “as a primary function intelligence, counterintelligence, investigative, or national security work.”
Every president since 1978, other than Joseph Biden, has added agencies to the list. Trump on March 22 added more than 40 cabinet departments, agencies, and subdivisions to that list, doing so in Executive Order 14,251.
District Court Judge James Donato of the Northern District of California on June 24 preliminarily enjoined enforcement of that order. The Ninth Circuit on July 7 granted an administrative stay pending consideration of the government’s emergency motion, and the following day, Donato denied a stay pending appeal.
That stay was granted Friday in an order by Circuit Judges John B. Owens (an appointee of President Barack Obama) Bridget S. Bade and Daniel A. Bress (placed on the Ninth Circuit by Trump).
The order was challenged by unions which persuaded Donato that Trump’s action was predicated on First Amendment retaliation in response to some unions having, they claimed, “declared war on President Trump’s agenda.”
Friday’s order says:
“We conclude the government has shown that it is likely to succeed on the merits of the retaliation claim. Even assuming that Plaintiffs have made out a prima facie claim of retaliation, on this record the government has shown that the President would have taken the same action even in the absence of the protected conduct….On its face, the Order does not express any retaliatory animus. Instead, it conveys the President’s determination that the excluded agencies have primary functions implicating national security and cannot be subjected to the FSLMRS consistent with national security.”
It adds:
“The government has also established a likelihood that it will suffer irreparable harm absent a stay….As the D.C. Circuit explained in staying an injunction of the same Executive Order, although the government has deferred implementation of aspects of EO 14,251, the government ‘suffers irreparable harm even to the extent the preliminary injunction overlaps with the [government’s self-imposed restrictions’ because the injunction ‘ties the government’s hands ... in the national security context.’ ”
The case is American Federation of Government Employees. AFL-CIO v. Trump, 25-4014.
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