Rejection: DC District Court Upholds FSIP Authority With Trump Appointees

The DC District Court dismissed a case filed by a federal employee union seeking to overturn a decision of the FSIP because FSIP members were not confirmed by the Senate.

For those who follow the litany of lawsuits filed by unions during the Trump administration, one of them has been dismissed. In this case, the Association of Administrative Law Judges challenged the constitutional legitimacy of the Federal Service Impasses Panel (FSIP or the Panel) with the District Court for the District of Columbia.

The FSIP is an organization within the Federal Labor Relations Authority (FLRA). It includes a Chairman and at least six other members who are appointed by the President. The function of the Panel is “to provide assistance in resolving negotiation impasses between agencies and exclusive representatives.”

Union Arguments Before DC District Court

The Association of Administrative Law Judges (“AALJ”), is a labor union that is the bargaining unit for about 1,200 federal administrative law judges who work at the Social Security Administration.

While negotiating a labor agreement in 2019, the parties reached an impasse and the case went to the FSIP for resolution. The union objected to the Panel taking the case. It claimed the Panel did not have the authority to issue a decision because the members’ appointment violated the Appointments Clause of the Constitution. Specifically, the union argued that the Senate had not confirmed the appointment of the Panel Members.

To put this in context, the FSIP was created with the passage of the Civil Service Reform Act of 1978. None of the Panel members have ever been confirmed by the Senate but were only appointed by the president and no legal arguments on this issue had previously been raised. Federal employee unions generally believed the Panel members appointed by President Trump would not be receptive to the arguments and concerns of the union.

Federal employee unions argued during the Trump administration that appointing Panel members without the Senate confirming the nominations were unconstitutional. This is one of the cases in which the unions raised the argument regarding the requirement of Senate confirmation for Panel members.

FSIP Accepted Case

The FSIP accepted the case over the objections of the union. Legal objections filed by the union with the FLRA and the Fourth Circuit Court of Appeals were denied. The FSIP issued its decision on the impasse issues on April 15, 2020.

Five days after the decision by the FSIP, the union filed an appeal with the District Court for the District of Columbia. The Social Security Administration intervened and argued the Court lacked jurisdiction to hear the case.

Union Seeking to Overturn FSIP Decision

The Court noted the union claimed its legal challenge involved a “lone constitutional claim” alleging Panel members were appointed in violation of the Appointments Clause. But, observed the Court, “…the plaintiff devotes a significant portion of the complaint to discussing a specific, and unfavorable, Panel decision – the April 15, 2020 decision. Furthermore, the complaint asks the Court to declare Panel decisions ‘null and void’ and to ‘[e]njoin the Panel . . . from issuing, giving effect to, or otherwise enforcing a Panel decision.’” 

Based on this, the Court concluded the union filed the case with the Court seeking a “vehicle by which” plaintiff seeks invalidation of a Panel decision, rather than a “lone constitutional claim.”


The Court denied the relief sought by the union. The Court ruled the case was one “of the type Congress intended to be reviewed within [the] statutory structure.”

In other words, the Court concluded the case should have gone before the Federal Labor Relations Authority. Note, however, the decision did not specifically address the Constitutional issue of the argument contending Senate confirmation is required for appointing FSIP members.

About the Author

Ralph Smith has several decades of experience working with federal human resources issues. He has written extensively on a full range of human resources topics in books and newsletters and is a co-founder of two companies and several newsletters on federal human resources. Follow Ralph on Twitter: @RalphSmith47