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What an "Indicative Ruling" Means for the VA Union Contract Fight

afge collective bargaining first circuit shaun southworth union rights veterans affairs
 

Yesterday we covered how the VA is telling employees that the union contract is canceled while the appeals court calls the question unresolved. On Friday night, the union filed a new motion for an “indicative ruling.” If you work at the VA, here is what that phrase means and what it does and does not change.

The Problem the Union Is Trying to Solve

On October 2, the First Circuit said the trial judge cannot change her March injunction while that injunction is on appeal, absent a remand (First Circuit, Nos. 26-1321 and 26-1904, Oct. 2, 2026). In other words, her hands are tied unless the appeals court hands the case back to her.

How Rule 62.1 Works

Rule 62.1 of the Federal Rules of Civil Procedure exists for exactly that situation. When a judge gets a motion she has no power to grant because of a pending appeal, the rule gives her options: defer the motion, deny it, or state on the record that she would grant it if the First Circuit sent the case back, or that it raises a substantial issue. That statement is the indicative ruling. It indicates what she would do; it does not order anything.

The Three Steps From Here

Step one: the judge decides whether to issue an indicative ruling. Step two: the union takes that statement to the First Circuit under Appellate Rule 12.1 and asks for a remand. The First Circuit may remand, but it is not required to, and it can keep the appeal while the judge works. Step three: only after a remand can the judge actually rewrite the injunction.

The One Line Everything Turns On

Right now, the injunction keeps the contract in place for the remainder of the agreed-upon term. The VA says that term ended August 8. The union wants the line changed to say the injunction lasts until the parties finish negotiating a new agreement. That is the whole fight in one sentence.

The VA’s Response Argued the Calendar, Not the Merits

In its Monday filing (D.R.I. No. 1:25-cv-00583, Dkt. 81), the VA did not argue the merits. It argued timing. The union asked for a five-business-day response period, and the VA wants its full fourteen days. Its reasons: even a win for the union would have no immediate effect, the First Circuit does not have to remand, and the VA’s own appeals brief is not due until November 23. Shaun’s read is that the filing also signals the VA will use the motion to push the judge to redo the whole injunction analysis and re-argue points she already ruled it had forfeited.

What This Means for You

This is a smart motion because it is built out of the appeals court’s own words, but only the first step is in the union’s hands. Nothing changes at your facility this week, and probably not this month, and none of this is final. If you work at the VA, keep your copy of the master agreement saved and keep a dated log of any changes to your working conditions. 

Legal Disclaimer: This content is for general informational purposes only and does not constitute legal advice. Federal employment situations are fact-specific and time-sensitive. Please consult a qualified federal employment attorney about your specific situation. You can contact Southworth PC at attorneysforfederalemployees.com.

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