SSA law judges pile on another constitutional challenge against federal impasses panel

The Association of Administrative Law Judges sued the Federal Service Impasses Panel (FSIP) this week, joining a growing number of employee organizations that have challenged the panel’s constitutionality and authority.

The lawsuit, which AALJ and the law firm Gupta Wessler filed Monday in the U.S. District Court for the District of Columbia, is the latest legal challenge against the impasses panel. At least two other similar lawsuits are pending in the same federal district court.

AALJ represents some 1,200 administrative law judges in 163 Social Security disability hearings offices across the country. Its challenge followed several months of often contentious collective bargaining negotiations between the association and the agency.

SSA and AALJ began negotiating a new contract last year. The parties agreed on several articles for a new contract but couldn’t settle on nine of them.

In October, SSA asked for the panel’s assistance to resolve the remaining disputes.

FSIP issued its decision earlier this month, and many of its provisions lean in favor of SSA management.

The panel, for example, imposed a three-year contract on both parties. The association had asked for a contract with a seven-year term, as was customary in previous collective bargaining agreements.

The impasses panel also significantly lowered official time banks for AALJ. The agency proposed a 2,000-hour maximum on official time for the following fiscal year, well below the 14,000 hours AALJ representatives spent on official time, on average, for the last six years.

The panel ultimately imposed a  1,200-hour annual cap on official time.

For AALJ, the recent ruling from the impasses panel demonstrates its reach and authority.

“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 lawsuit reads.

But the latest decision from the impasses panel is invalid, the association argued, because its members weren’t confirmed by the Senate. Today, the panel has 10 members, all of whom were appointed by the president.

In an attempt to clarify the panel’s members as “inferior officers,” President Donald Trump last fall gave the Federal Labor Relations Authority the power to remove the chairman or members of the FSIP.

But for AALJ, it believes the members should be Senate-confirmed.

“The members of the Federal Service Impasses Panel are principal officers within the meaning of the Appointments Clause,” the lawsuit reads. “They exercise significant authority pursuant to the laws of the United States, including the power to issue final and unreviewable decisions imposing binding contract terms on federal agencies and their employees. And they are not supervised or directed by any other Senate-confirmed officers.”

AALJ lawsuit follows similar one from AFGE

The American Federation of Government Employees sued the impasses panel last month on behalf of the union’s National Veterans Affairs Council, which represents some 350,000 employees at the VA.

AFGE and VA have been locked in heated collective bargaining negotiations for much of the past year. The two parties began discussing the ground rules for their negotiations back in June 2018. VA asked the impasses panel to intervene this past December.

Like the AALJ, AFGE made similar arguments challenging the constitutionality of the impasses panel. The union also said FSIP members have an “anti-union bias” making them unfit to serve.

The lawsuit pointed to past experiences and published articles from several panel members as evidence of “anti-union bias.” David Osborne, for example, is president and general counsel for the Fairness Center, which, according to its website, “provides free legal services to those hurt by public-sector union officials.”

And like the AALJ, the AFGE lawsuit described examples where the impasses panel had imposed more “extreme positions” than those taken by the union or the agency. AFGE pointed to a dispute between an Agriculture Department subcomponent and the American Federation of State, County and Municipal Employees (AFSCME).

AFSCME had requested an official time schedule of three days a week for a local union president, while USDA had proposed two days a week. The impasses panel, according to the AFGE lawsuit, imposed a schedule of one day a week.

AFGE sued the impasses panel another time last summer. In its August 2019 lawsuit, the union again challenged the constitutionality of the impasses panel members. That lawsuit, which is still pending in the D.C. federal district court, sought injunctive relief from FSIP’s May 2019 ruling on a dispute between AFGE and SSA.

All three lawsuits are seeking some sort of determination that the impasses panel is improperly constituted, as well as a statement declaring the panel’s decisions as null and void.

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