
Ted Parker is a student at Harvard Law School and a member of the Labor and Employment Lab.
In today’s news and commentary, the comment period for the Trump administration’s new Schedule F rule draws to a close; Gwynne Wilcox’s reinstatement case works its way through the D.C. Circuit; plaintiffs seeking a declaratory judgment on the NLRB’s removal protections run into a jurisdictional problem; and New Jersey locomotive engineers return to work after a successful strike.
The comment period for the Trump administration’s revived Schedule F rule ends this Friday at midnight. As Henry wrote in January, Schedule F (now called “Schedule Policy/Career”) would allow the administration to fire career employees “at will.” The proposed rule (“Improving Performance, Accountability and Responsiveness in the Civil Service”) invokes the specter of civil servants “intentionally subverting Presidential directives” to remove their for-cause protections. Unions like the National Treasury Employees Union say Schedule F is about “administering political loyalty tests” to employees in non-political positions. Advocates are encouraging the public to submit comments to the rule with a step-by-step guide. These comments are not likely to block the rule but could create a record making it easier to overturn.
Speaking of for-cause protections, a D.C. Circuit panel heard oral arguments on Friday in Gwynne Wilcox’s reinstatement case. How the case’s current procedural posture fits into the back-and-forth John laid out last month is complex. First, a D.C. District Court ordered Wilcox’s reinstatement. Then, a D.C. Circuit panel stayed that order, pending its consideration of the case on the merits. Then, the full D.C. Circuit reversed the panel’s stay, giving the order effect again. Finally, the Supreme Court stayed the order again, which simultaneously returned the case to the D.C. Circuit panel (for consideration on the merits) and retained it at the Supreme Court (where the administration’s request for consideration on the merits is still pending). As a result, the case is now playing out on two levels. The oral arguments last Friday took place on the lower of these two levels, as the case winds its way through D.C. Circuit back up to the Supreme Court. Meanwhile, the Supreme Court could intervene at any time by granting administration’s request to hear the case before the D.C. Circuit has ruled on the merits. One way or the other, then, the oral arguments on Friday are likely only a prelude to the case’s final resolution at the Supreme Court.
According to reporting in Bloomberg, Wilcox’s case was also the talk of a different D.C. Circuit panel the day before. At oral arguments, the National Right to Work Legal Defense Foundation, representing two Starbucks workers, asked for a declaratory judgment that the removal protections for Board members are unconstitutional “as a shield against [Wilcox’s] return.” Judge Garcia appeared to question whether it would be “appropriate” to “interrupt ongoing litigation over Wilcox’s reinstatement.” But even more important was a larger jurisdictional problem. Because Trump’s NLRB agrees with Right to Work that the protections are unconstitutional, the “controversy” required for federal jurisdiction seems to be lacking. For Garcia, this “sets off every alarm bell I have for what it means to only resolve controversies with adverse parties.” If the Court declared the protections unconstitutional now, a future litigant willing to actually make the case for the protections’ constitutionality might be bound by a decision made without the benefit of this advocacy.
Finally, New Jersey locomotive engineers returned to work today after a historic three-day strike (previously covered by Ajayan, Justin, and Liana). Details are still sketchy, but the workers seem to have won the raise they were striking for. NJ Transit service is expected to resume Tuesday.
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June 30
Antidiscrimination scholars question McDonnell Douglas, George Washington University Hospital bargained in bad faith, and NY regulators defend LPA dispensary law.
June 29
In today’s news and commentary, Trump v. CASA restricts nationwide injunctions, a preliminary injunction continues to stop DOL from shutting down Job Corps, and the minimum wage is set to rise in multiple cities and states. On Friday, the Supreme Court held in Trump v. CASA that universal injunctions “likely exceed the equitable authority that […]
June 27
Labor's role in Zohran Mamdani's victory; DHS funding amendment aims to expand guest worker programs; COSELL submission deadline rapidly approaching
June 26
A district judge issues a preliminary injunction blocking agencies from implementing Trump’s executive order eliminating collective bargaining for federal workers; workers organize for the reinstatement of two doctors who were put on administrative leave after union activity; and Lamont vetoes unemployment benefits for striking workers.
June 25
Some circuits show less deference to NLRB; 3d Cir. affirms return to broader concerted activity definition; changes to federal workforce excluded from One Big Beautiful Bill.
June 24
In today’s news and commentary, the DOL proposes new wage and hour rules, Ford warns of EV battery manufacturing trouble, and California reaches an agreement to delay an in-person work mandate for state employees. The Trump Administration’s Department of Labor has advanced a series of proposals to update federal wage and hour rules. First, the […]