The More Things Change, The More They Stay The Same

A federal judge has ruled against the implementation of the newly-designed labor relations program for DHS putting the program on hold for now.

The Department of Homeland Security and the Office of Personnel Management on Friday lost their bid to persuade a District Court judge to scale back her injunction against the department’s new personnel system. (National Treasury Employees Union v. Chertoff, U.S.D.C.D.C., C.A. No. 05-201 (RMC), October 7, 2005).

Judge Rosemary Collyer issued an opinion on August 12, 2005, thwarting the agency’s attempt to implement a more “flexible” personnel system. (See NTEU Gets Big Win in Round One)

In that earlier decision, she invited the agency to submit an order that “more selectively enjoins Subpart E in a manner otherwise comporting with this memorandum opinion.” She indicated a willingness to entertain such a move. (See endnote 1, p. 1) The agency took her up on her offer and submitted a motion to limit the court’s injunction to five specific sections of Subpart E of the regulations.

Pointing out that the agency went too far in that it tried to re-argue the merits of the injunction rather than seek an appropriate limitation of the order, the judge concluded that the agency’s proposal was “insufficient to comport with the [earlier] Memorandum Opinion.” She denied the agency’s motion. (p. 2)

Seemingly miffed with the agency, the judge penned this language in her latest opinion:

Having given the Court’s ruling the most narrow of interpretations, the Agencies argue that the remainder of Subpart E is severable from five specific regulations they state were held to be invalid. The principal flaw in this argument is that the Court disallowed all parts of the Regulations that allow the unilateral repudiation of lawful contracts — whether by issuance of directives, policies and rules, or other means. Inasmuch as there are significant additional avenues by which DHS would allow itself to ignore its contractual obligations, and the Agencies suggest no modification to those regulatory provisions that would bring the Regulations into conformity with the Court’s ruling, the Court declines to modify its August 12, 2005, Memorandum Opinion and Order. (p. 15)

The result is that the labor relations portion of the new DHS personnel system is on hold. In effect, with this new decision, the agency has gone from a situation where the judge identified restrictions on several portions of the proposed system to a situation that places this portion of the DHS system on hold for the time being.

The problem, from the perspective of the district court judge, was that the agency is not establishing a system with meaningful collective bargaining. In the original regulations and with the modifications contemplated as a result of the initial decision, the agency would have had the power to overturn collective bargaining agreements in a number of ways.

As stated by Judge Collyer, “[t]he Agencies’ proposal falls short because it leaves open other avenues whereby DHS could unilaterally and without recourse disavow lawful contracts.”

In revealing what may have sealed the outcome of the decision, Judge Collyer wrote: “Rather than merely ask the Court to amend or modify its judgment, the Agencies effectively ask it to reconsider and disavow this portion of its prior decision.” In effect, the judge concluded her initial ruling was effectively ignored and she does not intend to have that happen.

The Department of Homeland Security can appeal the decision. It can also go back and restart the process to reconstruct a new or modified system that may pass judicial muster.

One other possibility: the agency could arguably ask the President to remove major portions of the Department of Homeland Security out of the collective bargaining arena altogether although no reference has been made for taking this approach.

But, for the moment, the major changes to the labor relations program at DHS are at a standstill. The next move is up to the agency and the existing system will presumably remain in place for the time being.

About the Author

Susan McGuire Smith spent most of her federal legal career with NASA, serving as Chief Counsel at Marshall Space Flight Center for 14 years. Her expertise is in government contracts, ethics, and personnel law.