Yet another lawsuit challenging the legality of how members of the Federal Service Impasses Panel are appointed comes just days after the panel imposed a largely pro-management contract on SSA administrative law judges.
A union representing administrative law judges at the Social Security Administration on Monday filed a federal lawsuit against the Federal Service Impasses Panel, arguing that the body’s members have not been constitutionally appointed.
In a lawsuit filed in the U.S. District Court for the District of Columbia, the Association of Administrative Law Judges joined a growing list of federal employee groups to file constitutional challenges to the impasses panel’s authority.
Like other recent legal challenges, the union argued that the impasses panel is improperly constituted, because its members were appointed directly by the president. The latest lawsuit said that impasses panel members are effectively principal officers requiring Senate confirmation because they lack direct supervisors and issue decisions that cannot be appealed.
“Despite this constitutional defect, the panel is wielding substantial government power: It is asserting jurisdiction over federal labor unions, issuing final orders that are purportedly binding to 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 union wrote. “And the panel’s unconstitutional exercise of these broad governmental powers is more egregious still because, unlike most federal agencies, its actions are unchecked—the merits of the panel’s actions generally are not subject to any further administrative or judicial review.”
Similar to a recent lawsuit from the American Federation of Government Employees’ National Veterans Council filed last month, the administrative law judges' association accused impasse panel members of being biased against labor groups. In particular, it noted that panel member F. Vincent Vernuccio has in recent weeks written blog posts criticizing coronavirus stimulus legislation for providing a “handout” to unions.
Last week, the impasses panel imposed a decision on nine contested articles of the administrative law judge union’s new contract with the Social Security Administration, siding mostly with management. In one instance, the panel severely cut the union’s access to official time to 1,200 hours per year, a number even lower than the proposal offered by agency management.
“Given that the association’s yearly official-time usage for the past 19 years has ranged between 19,000 and 22,000 hours, the panel’s decision renders the association incapable of meaningfully representing its members or performing its statutory duties,” the lawsuit stated. “It would reduce the staff that the association would have to represent its members or perform its statutory duties from 10 full-time equivalents to one-half of a full-time equivalent.”
The union asked the court to assert that impasses panel members must be confirmed by the Senate, and to make all of the panel’s decisions until it has Senate-confirmed members “null and void.”