Unions Enjoin DHS From Implementing New Personnel Regulations

(National Federation of Federal Employees)Late Friday, the District Court for the District of Columbia issued its much anticipated ruling.  In a bold but justified decision, Judge Collyer enjoined the Department of Homeland Security (DHS) and the Office of Personnel Management (OPM) from implementing certain aspects of their new personnel regulations on the grounds that the new Human Resources System “fail(s) to conform to the express dictates of the Homeland Security Act” (HSA).

NFFE joined NTEU, AFGE, and the Metal Trades Department in challenging the agencies’ new system.  The lawsuit argued that the regulations failed to “ensure” collective bargaining as required by the HSA since DHS could supercede any agreement with subsequent policies and managers retained the unilateral right to “take whatever other actions may be necessary to carry out the Department’s mission” without bargaining or prior notice, irrespective of collective bargaining terms. The court agreed.  Judge Collyre also agreed with the unions that the new regulations “fundamentally change the obligations of an independent agency”, the FLRA, by creating an artificial appellate role for the Federal Labor Relations Authority to review decisions of the Homeland Security Labor Relations Board within a limited time frame, while according DHS a highly deferential standard, which the FLRA itself has yet to recognize.  While the court sustained certain limitations placed on operational and procedural issues, as well as restrictions on appropriate arrangements bargaining, it also found the regulations overreached the scope given DHS by the HSA.

With regard to the employee appeals procedure, the court also found that the regulations contravened the express intent of Congress in creating a new Human Resources System, which stated that DHS employees “are entitled to fair treatment in any appeals that they bring in decisions relating to their employment.”  Included in the statutory requirements for the new system are the right to due process and “the fair, efficient, and expeditious resolution of matters” involving DHS employees.  Judge Collyre found that the new DHS scheme did not meet these statutory requirements, since the regulations restrict Merit Systems Protection Board review and eliminate mitigation of penalties for adverse actions by requiring the MSPB to uphold DHS actions unless the penalty was “so disproportionate” at to be “wholly without justification.”  The Court found that this standard “would render MSPB review almost a nullity . . .” and could insulate DHS decisions from review altogether.

The court left the door open for DHS and OPM to submit an order that more selectively enjoins the agencies in accordance with its decision.  Unless this decision is amended or set aside by a higher court, Judge Collyer’s ruling becomes precedent, which could substantially impact pending and contemplated litigation with respect to the proposed Department of Defense regulations. President Brown praised the court’s decision:  “Finally, the court has told management what we have been telling them for the last two years.”

We anticipate a prompt appeal filed by the government to the U.S. Court of Appeals for the D.C. Circuit.