Unions Dispute Government’s Latest Effort to Dismiss Impasse Panel Challenges

The Trump administration this week cited a recent federal appellate court decision affirming that unions must challenge President Trump’s workforce executive orders through an administrative process, rather than U.S. District Court, to support its efforts to dismiss multiple lawsuits challenging the constitutionality of how members of a federal labor relations board are appointed.

Multiple federal employee unions are engaged in litigation challenging the validity of the Federal Service Impasses Panel and its largely pro-management decisions, based on the legal theory that members of the panel are effectively principal officers under the Constitution, which would require them to be confirmed by the Senate. Currently, the law establishing the panel allows the president to appoint members directly without consulting Congress.

The unions have argued that since members of the impasses panel lack direct supervisors and in most instances, their decisions cannot be reviewed either by the Federal Labor Relations Authority or the judiciary, the Senate must have a say in their appointment.

But attorneys for the impasses panel and the Trump administration have contended that since the issue is related to federal labor-management relations, unions should be required to seek redress through the Federal Labor Relations Authority first. Until recently, although the FLRA and FSIP shared agency staff, they were considered essentially independent of one another, but following the filing of lawsuits challenging members’ appointments President Trump delegated his authority to supervise the impasses panel to the FLRA.

In both the Association of Administrative Law Judges’ and the American Federation of Government Employees National Veterans Affairs Council’s lawsuits against the impasses panel, the government filed a so-called Notice of Supplemental Authority citing a recent decision by the U.S. Court of Appeals for the Second Circuit that confirmed unions seeking to challenge President Trump’s workforce executive orders must first go to the FLRA before filing a lawsuit to support their request that the cases be dismissed.

“The Second Circuit’s per curiam decision in SEIU v. Trump affirmed the Western District of New York’s holding . . . that the Federal Service Labor-Mangement Relations Statute’s comprehensive review scheme channels all claims arising within its scope away from district court and instead through proceedings before the [FLRA] and then a court of appeals,” the government wrote.

Both the AALJ and AFGE were swift to respond, arguing that efforts to invalidate the controversial executive orders represent entirely different circumstances than challenging the constitutionality of how impasses panel members are appointed.

“The Second Circuit’s summary affirmance in [SEIU v. Trump] offers no support to the government’s jurisdictional arguments here,” wrote attorneys for the Association of Administrative Law Judges. “[As] we have explained, these cases have nothing to do with this one—a structural challenge to the Impasses Panel’s authority under the Appointments Clause. Binding D.C. Circuit precedent holds that this court has jurisdiction over challenges to the panel’s authority, as opposed to the merits of a particular decision or action.”

And AFGE’s attorneys noted that unlike in the executive order cases, unions have no other avenue through which to seek meaningful review of their claims.

“The panel’s decisions impose terms and conditions of employment on bargaining unit employees, but they are not directly reviewable,” the attorneys wrote. “A union’s only option to maintain a constitutional challenge to the composition of the panel is to deliberately violate the panel’s decision in the hope of provoking an unfair labor practice charge. But the initiation of an unfair labor practice proceeding rests entirely in the hands of others.”

In both lawsuits, the parties are awaiting decisions from judges on whether to grant the administration’s request to dismiss the cases.