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Administrative Law Judges Union Asks Court to Intervene in Impasses Case

Union says two labor-management panels ignored calls to address constitutional complaints related to how the president appoints members of the Federal Service Impasses Panel.

A union representing administrative law judges at the Social Security Administration on Thursday asked a federal appeals court to halt an impasses panel's proceedings with the agency, after the panel and another labor-management entity failed to respond to a constitutional challenge.

Last October, the Social Security Administration declared an impasse in negotiations over a new contract with the Association of Administrative Law Judges, following a combined six months of negotiations and mediation, and asked for the Federal Service Impasses Panel to assert jurisdiction over the proceedings.

Later that month, the union objected to the impasses panel getting involved, arguing that the way its members are appointed is unconstitutional. The union’s argument echoes multiple ongoing lawsuits that claim that given the power granted to the impasses panel, as well as lack of oversight and parties to appeal its decisions, the Senate must confirm panel members, in accordance with the Appointments Clause of the Constitution.

But in January, the impasses panel asserted jurisdiction and declined to acknowledge the union’s objections. The union then filed a motion to the Federal Labor Relations Authority requesting a stay of proceedings and that the FLRA issue a decision on the merits of its constitutional challenge. Since then, the FLRA has not even acknowledged receipt of the union’s requests, while the impasses panel has set a Feb. 7 deadline for the union to submit its last best offers on the eight contract articles before the panel.

Although the impasses panel’s decisions in most cases cannot be reviewed by a higher court, decisions by the FLRA can be appealed to federal circuit courts. On Thursday, the union submitted a petition for review and a motion to stay proceedings to the U.S. Court of Appeals for the Fourth Circuit.

The union argued that the Federal Labor Relations Authority's continued inaction on its requests constitutes a final decision that can be brought to the court for review.

“The January 24 decision of the Federal Service Impasses Panel is the final order on its determination of jurisdiction,” the union wrote. “The [labor authority] failed to respond to the union’s motions. As a result, it also failed to afford the union the relief requested. The authority’s failure to act is a constructive denial.”

In other cases where questions regarding how members are appointed have arisen, the impasses panel has simply declined to consider them when issuing a final decision.

The Trump administration last November sought to blunt legal challenges to the impasses panel’s makeup by issuing a presidential memorandum delegating the president’s authority to fire panel members to the Federal Labor Relations Authority. Legal experts have doubted whether the memorandum would hold up to scrutiny, describing it as “diametrically opposed to the letter and the spirit” of the law establishing both panels.

In a statement, Association of Administrative Law Judges President Melissa McIntosh said that the fact that the impasses panel is appointed solely by the president casts doubt on the impartiality of its members.

“We believe the Social Security Administration has been refusing to negotiate in good faith and its extreme positions have failed to put the interests of the American public first,” she said. “To reach a compromise, we need to have a trust in the impasses panel—we can’t depend on an unconstitutional structure to try to resolve these serious issues.”

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