SSA judges sue Impasses Panel
- By Lia Russell
- Apr 22, 2020
The Association of Administrative Law Judges has become the second federal-sector union to sue the Federal Service Impasses Panel, alleging unconstitutionally circumventing processes to appoint the panel members in charge of mediating federal labor-management disputes.
AALJ filed a lawsuit against the FSIP, which is a component of the Federal Labor Relations Authority, on April 21 in the District Court for the District of Columbia. The lawsuit posits that President Donald Trump improperly appointed the 10 members who sit on the panel without securing the Senate's approval, violating the Appointments Clause of the U.S. Constitution.
"Despite this serious constitutional defect," the complaint states, "the Panel is wielding substantial government power: It is asserting jurisdiction over federal labor unions, issuing final orders that are purportedly binding on those unions, and imposing long-term contract provisions on the unions against their will—including restrictions that go even further than those requested by employers."
The American Federation of Government Employees and its National Veterans Affairs Council filed suit against FSIP on the same grounds in March.
The complaint notes that at least three FSIP members hold current positions as consultants at law firms or think tanks that claim to highlight the "abuses" rampant in federal-sector and public-sector unions.
One of those members, F. Vincent Vernuccio, published two separate blog posts on March 25 and April 21 for the Mackinac Center for Public Policy, where he is a senior fellow, decrying a recent Senate relief bill as a "handout out to unions."
The lawsuit challenging the FSIP members' fitness is unprecedented, according to H. Joseph Schimansky, who was the executive director of the FSIP between 1996 and 2016.
"Individual lawsuits have challenged the Panel's decisions in the past, who historically have served at the pleasure of the President," he told FCW in an interview. However, he said that there have never been lawsuits before challenging their ability to serve under the Federal Service Labor-Management Relations Statute.
The FSIP can issue final, binding decisions for the duration of a union's contract agreement if a union and agency cannot agree on a decision during bargaining negotiations.
AALJ's lawsuit stems from an earlier labor dispute during which it alleged that the Impasses Panel improperly issued a binding decision in a contract negotiation dispute with the Social Security Administration.
The union also alleged that the FSIP unilaterally adopted provisions that were favorable to the SSA without attempting to address the union's concerns, such as implementing a seven-year long contract and granting the agency full discretion to determine how often and when judges could telework.
The FSIP's decision to intervene and make decisions that weren't strictly related to the issues being deliberated marks a radical departure from previous panels' philosophy, according to Mary Jacksteit, who was the chair of the FSIP under the Obama administration until 2017.
"It's a way of operation that's unprecedented. It's not surprising people are challenging it," Jacksteit said in an interview with FCW.
"The way we saw it, and how every panel until now interpreted the federal statute, was to [see] the [Impasses] panel as part of the collective bargaining process. When the process of negotiation cannot be completed, the role of the panel [was] to support the two parties as much as possible in making a decision. Only then if they couldn't reach an agreement, would the panel make a final decision."
The AALJ wants the court to "declare that any decisions issued or actions taken by the Panel are null and void," prevent any other parties from making decisions on behalf of the FSIP and pay attorneys' fees and court costs.
Lia Russell is a former staff writer and associate editor at FCW.