Labor & Employment Law Daily FLRA flips precedent, finds immigration judges are ‘management officials’ who cannot join a union
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Monday, November 9, 2020

FLRA flips precedent, finds immigration judges are ‘management officials’ who cannot join a union

By Pamela Wolf, J.D.

Dissenting Member Ernest DuBester called the decision “an act of legal gymnastics.”

In a 2-1 decision on November 2, the Federal Labor Relations Authority (FLRA) upended its own 2000 precedent establishing that immigration judges are not “management officials,” to find that in fact they are (in 2020), thus taking away the right of present-day immigration judges to join a union.

Re-examining precedent. In U.S. DOJ Executive Office for Immigration Review and National Association of Immigration Judges (71 FLRA No. 207, November 4, 2020), the FLRA took the opportunity to reevaluate its precedent on whether immigration judges (IJs) are “management officials” under 5 U.S.C. § 7103(a)(11).

IJs not management officials. Below, a FLRA regional director (RD) denied the EOIR’s petition to clarify a bargaining unit to exclude all IJs on the grounds that they are management officials and accordingly not appropriate unit members under § 7112(b)(1) of the Federal Service Labor-Management Relations Statute (FSLMRS). According to the RD, “changed circumstances” existed to support re-examination of the Authority’s finding that the unit could include IJs. However, despite the changed circumstances, the unit was still appropriate because IJs are not management officials, the RD found.

“Changed circumstances.” Notably, since the Authority’s 2000 decision establishing that IJs are not management officials, the number of cases pending before IJs and decided each year has significantly increased, according to the FLRA. Furthermore, the EOIR has codified “adopt-and-affirm” and “affirmance with opinion” procedures, and revised the level of review of IJ factual determinations from de novo to a clear error standard. The U.S. Supreme Court also decided, in Lucia v. Securities & Exchange Commission), that Administrative Law Judges at the SEC were officers of the United States under the Appointments Clause of the U.S. Constitution. These developments had prompted the EOIR’s petition to clarify the bargaining unit to exclude IJs.

But now they are. After the RD denied the petition, the EOIR filed an application for review arguing that the FLRA should, among other things, reconsider its 2000 decision in U.S. DOJ, Executive Office for Immigration Review (56 FLRA 616). After considering the record and reviewing prior precedent, the FLRA found that the 2000 decision was incorrectly decided. The Authority thus vacated that precedent and found that “immigration judges are management officials, and therefore, excluded from being members of the bargaining unit” under the FSLMRS.

Dissent. The dissenting Member of the three-Member Authority harshly criticized the decision. “Acting in haste to deprive [IJs] of their right to belong to a union, the majority has cobbled together a decision that ignores Authority precedent governing both the review of unit certifications and the scope of the ‘management official’ exclusion, as defined in § 7103(a)(11) of the [FSLMRS],” wrote Member Ernest DuBester.

DuBester observed that the RD had agreed with the EOIR that a regulatory change to the level of review of the IJ’s factual determinations amounted to a substantial change warranting a reassessment of the IJ’s status. However, after conducting that reassessment, the RD concluded that this change did not establish that the IJs are management officials.

The majority’s decision does not disturb the RD’s findings; it concludes that “the substantial change finding does not even ‘raise a separate ground for review under 5 C.F.R. § 2422.31(c), but merely demonstrates that re-examination of the certified unit was required,”" the dissent noted.

“Legal gymnastics.” Nonetheless, “in an act of legal gymnastics,” the majority decided that it may reconsider the FLRA’s 2000 decision—”the very decision in which the Authority determined that the IJs were not management officials—because the Union did not file an application for review to challenge the RD’s findings regarding the substantial change,” wrote DuBester.

Setting aside the question of why the National Association of Immigration Judges (NAIJ) would seek review of a decision denying the EOIR’s petition, “it is entirely unclear how its failure in this regard opens the door to what is essentially a collateral attack on our decision in [the 2000 case],” according to DuBester.

No “plausible reason” for reconsidering precedent. Even assuming the viability of the 2000 decision was properly before the Authority, the majority “fails to set forth a plausible reason for reconsidering this decision, much less vacating the RD’s decision for relying upon it,” DuBester said. The majority’s purported justification is that the 2000 ruling “is in conflict” with the FLRA’s decision in U.S. DOJ, Board of Immigration Appeals (47 FLRA 505] “is simply not true,” DuBester wrote.

The case is 71 FLRA No. 207.

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