
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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May 19
Schedule F comment period ends this week; Wilcox's reinstatement case is back before D.C. Circuit; NLRB removal protection case runs into jurisdictional problem; NJ locomotive strike ends in success.
May 18
In today’s news and commentary, the DC Circuit lifts a preliminary injunction on Trump’s collective bargaining ban for federal workers; HHS, DOL and Treasury pause a 2024 mental health parity regulation; and NJ Transit workers continue into the third day of a historic strike. In a 2-1 decision issued on Friday, the D.C. Circuit overturned […]
May 16
Supreme Court hears a case about universal injunctions; Champion of workers' rights announces run for Colorado Attorney General; Sesame Street is officially union!
May 15
Unions in Colorado urge Governor Polis to sign Senate Bill 5; more than 1200 Starbucks workers go on strike; and IATSE calls on President Trump to reinstate Shira Perlmutter.
May 14
District court upholds NLRB's constitutionality, NY budget caps damage awards, NMB or NLRB jurisdiction for SpaceX?
May 13
In today’s News and Commentary, Trump appeals a court-ordered pause on mass layoffs, the Tenth Circuit sidesteps a ruling on the Board’s remedial powers, and an industry group targets Biden-era NLRB decisions. The Trump administration is asking the US Court of Appeals for the Ninth Circuit to pause a temporary order blocking the administration from continuing […]