Erich Wagner at Government Executive reports attorneys for the Nation’s largest Federal Employee Union warns the August decision to allow President Trump’s Executive Orders stripping two-thirds of the Federal Workforce of their Collective Bargaining Rights would leave a “gaping hole” in the First Amendment if left in place. In a legal brief, attorneys for the American Federation of Government Employees (AFGE) criticized the three-Judge panel’s decision, which they said “effectively forecloses” Americans’ ability to claim they were retaliated against by the Federal Government for protected speech. The panel originally reasoned the Administration would have taken this course of action regardless of the Unions’ actions, thereby diffusing the claim of a First Amendment violation. “It is well-established that if a District Court finds that First Amendment activity was a substantial or motivating factor in the Government’s conduct toward the plaintiff, the burden shifts to the Government to prove by a preponderance of the evidence that it would have taken the same action even without the impetus to retaliate,” the Union wrote. “(By) determining conclusively that ‘on this record the Government has shown the President would have taken the same action even in the absence of the protected conduct,’ the panel upended this burden-shifting scheme and absolved the government of its burden of proof. The panel’s analysis is tantamount to the adoption of a legal rule that a claim of First Amendment retaliation fails as a matter of law as long as the Government, at the same time it engages in the retaliatory conduct, ‘fairly indicates’ a non-retaliatory rationale for the conduct.”

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