An Appeals Court Seems Skeptical of Both Sides in Immigration Judges Union Case

Judges for a federal appeals court gave little indication whether they favored overturning a controversial 2020 decision by the Federal Labor Relations Authority busting the union representing the nation’s corps of immigration judges during oral arguments Thursday.

In November 2020, the then-Republican controlled FLRA voted 2-1 to reject the conclusions of its regional director and decertify the National Association of Immigration Judges, a union representing immigration judges in the Justice Department’s Executive Office of Immigration Review, asserting that the judges are now management officials. The FLRA reaffirmed that decision in January and busted the union, despite the fact that the Justice Department withdrew its request for decertification, rendering the case moot.

Since the January decision, the union again asked the FLRA to reconsider its decision, appealed the decision to the D.C. Circuit Court, and in July the labor group filed a new representation petition with the FLRA. The FLRA has since denied the union’s reconsideration motion, and a hearing on the representation petition is slated for January.

During oral arguments, National Association of Immigration Judges attorney Abiel Garcia cited now-FLRA Chairman Ernest DuBester’s dissent in the case, which accused the Republican majority of “the antithesis of reasoned decision-making” and suggested one of his dissents in the case was improperly rushed by his GOP colleagues, who were anxious to bust the union before President Biden could nominate a new Democratic member to shift the authority’s ideological balance.

“Acting in haste to deprive immigration judges of their right to a union, the majority cobbled together a decision that ignores authority and precedent covering both the review of [bargaining] unit certifications and the scope of the management official exclusion,” he said.

But Circuit Judge Sri Srinivasan questioned whether the union had filed its appeal prematurely, given that it was still seeking the now-denied reconsideration from the FLRA at the time, and continues to pursue being reinstated via a new representation position.

“It’s undisputed that at the time you brought the petition for review, there was a motion for reconsideration pending before the agency,” he said. “Why doesn’t that run squarely into our doctrine that when there’s a motion for reconsideration pending, the petition for review is incurably premature?”

“That motion to reconsider specifically asked for reconsideration of the 2022 decision,” Garcia said. “At that point, we hold that [the 2020 decision] was final . . . so if it was premature, it would only be with regard to the 2022 decision.”

But Judge A. Raymond Randolph described the question of whether the union filed its appeal prematurely as a “dire trap for the unwary,” noting that he was unaware of any caselaw where the doctrine was applied in an FLRA case.

“You just can’t find that in the judicial review provision for an FLRA decision,” he said. “If you’re a counsel looking at it, pull it out and and read it, and you wouldn’t have a clue that if you file a motion for reconsideration, you can’t file a petition for review.”

Rachel Osborne, an attorney representing the FLRA, received a similar grilling, this time over the government’s argument that the union cannot appeal a decertification decision at all, and instead must provoke an unfair labor practice complaint by the Executive Office of Immigration Review and then appeal a resulting FLRA decision on that complaint.

“The idea is that the employer then provokes an unfair labor practice charge, and refuses to bargain, and one of the defenses is ‘inappropriate unit,’” Randolph said. “But how can this union ever provoke an unfair labor practice charge?”

“It could have provoked one because it had a valid, live unfair labor practice complaint that was being prosecuted through the Office of General Counsel,” Osborne said.

“But there can’t be a refusal to bargain if the union is not recognized,” Randolph said. “An individual [could], yes, but that’s not the union.”

“Well the union itself had a live complaint as of December of last year, and those complaints could have moved forward,” Osborne said.

“I don’t see how,” Randolph said. “I frankly don’t see how.”

After the hearing, National Association of Immigration Judges President Mimi Tsankov said she thought Garcia did a good job of keeping the focus on the alleged denial of the union’s due process rights with what was effectively a collateral attack on their bargaining unit’s certification.

“Now-Chairman DuBester set it forth in his dissent in the 2020 decision, that the FLRA really just cobbled together a decision that ignored precedent, ran afoul of its own bar on collateral attacks on a previous certification and failed to grapple with the findings of its regional director,” she said. “We think it’s clear that based on the law and the way that we presented it not only in oral arguments but in our briefs, that we clearly had the right to bring this case and we have jurisdiction to have this considered by the circuit court.”

It is unclear when the three-judge panel might issue a decision in the case, but Tsankov said she is “hopeful” that it be sooner rather than later.

“We’re very hopeful to get the decision quickly, because every day that we don’t get it is one more day that a longstanding union continues to not be recognized by the Justice Department,” she said.