Homeland Security appeals decision blocking personnel reforms

Bush administration continues push for governmentwide reform despite DHS’ legal troubles.

The legal battle over the Homeland Security Department's personnel system has resumed, with each side appealing unfavorable aspects of a federal judge's ruling on proposed reforms.

Assistant Attorney General Peter Keisler submitted a notice of appeal Thursday on behalf of the department. The unions that initiated the lawsuit responded Monday by filing a cross-appeal.

Judge Rosemary Collyer of the U.S. District Court for the District of Columbia in August ruled that DHS' proposed personnel system infringed on collective bargaining rights, in large part because of the department's override authority for existing contracts. In October, Collyer rejected proposed revisions to rules for the system.

DHS' notice did not specify the grounds on which the department was appealing.

"We're doing it because we believe that these regulations are entirely consistent with the provisions of the Homeland Security Act," DHS spokesman Larry Orluskie said.

Government lawyers have argued that the department needs increased flexibility to carry out its mission. The new labor regulations provide that flexibility, the lawyers have said.

Briefs detailing both appeals will be filed at a later date once appellate judges are assigned to the case.

The National Treasury Employees Union -- which, along with the American Federation of Government Employees, the National Federation of Federal Employees, the National Association of Agricultural Employees and the Metal Trades Department of the AFL-CIO, sued DHS to halt the new system -- said the unions are appealing aspects of Collyer's initial ruling that favored the government.

Specifically, the unions are questioning the legality of a new Homeland Security Labor Relations Board which would replace the Federal Labor Relations Authority in presiding over labor disputes. The unions are also appealing the regulations' limitations on subjects open to bargaining.

"The most frustrating part of this is the continued refusal by DHS to take the much wiser step of responding to our efforts to get the agency to sit down with NTEU to work out new personnel rules," NTEU President Colleen Kelley said.

Kelley said her group chose to file its own appeal because DHS did so, "rather than sit down with NTEU."

NTEU General Counsel Gregory O'Duden said the appeals will be assigned to a three-judge panel in the U.S. Court of Appeals for the District of Columbia. Following that, both sides will file briefs and then give oral arguments to the judges. The process could take "six to nine months or even a little bit more," O'Duden said.

The lawsuit does not touch on the pay-for-performance aspect of DHS' new personnel system. The department said it plans to award the first wave of performance-based pay raises in January 2008.

The legal battle also does not seem to be hindering the administration's efforts to extend personnel reforms across government. The Office of Management and Budget and the Office of Personnel Management jointly issued an implementation plan Monday for expanding reforms to the civilian agencies.

OMB and OPM devised the chronology in response to queries from Sens. Susan Collins, R-Maine, and George Voinovich, R-Ohio. Officials said it is formulated based on the experience of agencies already under alternative personnel systems, either in demonstration projects or in agencies with full exemption from civil service rules.

The administration in July released draft legislation aimed at implementing personnel reforms similar to those in the works at DHS across government. That legislation, dubbed the Working for America Act, has yet to be introduced by a member of Congress.