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Petition to Decertify Immigration Judges’ Union to Get Hearing

Jan. 6, 2020, 2:24 PM

The Federal Labor Relations Authority in a hearing that’s set to begin Jan. 7 will consider whether to decertify a union that represents about 440 immigration judges at the Department of Justice.

The National Association of Immigration Judges, an affiliate of the International Federation of Professional and Technical Engineers, is challenging a decertification petition filed by the DOJ in August. The petition says the judges are management officials and for this reason it’s “inappropriate” under federal labor law for them to be represented by a union. The FLRA likely will take at least a couple of days to hear arguments from both sides.

If the Trump administration prevails before the FLRA, similar challenges could be ahead for other unions that represent in-house judges at federal agencies, NAIJ President Ashley Tabaddor said in an interview. The Association of Administrative Law Judges, which represents about 1,400 ALJs at the Social Security Administration, could be the next target, she said.

Immigration judges have more power and less oversight than they did when the FLRA last considered the question in 2000 and found that the judges weren’t management officials, the DOJ petition says. The petition also cites a June 2018 ruling from the U.S. Supreme Court that found that ALJs at another federal agency, the Securities and Exchange Commission, are constitutional officers who “exercise significant authority pursuant to the laws of the United States.”

For these and other reasons, immigration judges “should be precluded from forming or joining a labor organization,” the petition says.

The hearing comes at a time when agencies and unions across the government are locked in labor disputes. These disputes likely will heat up as the administration continues to enforce three recently revived executive orders, first issued by President Donald Trump in May 2018, that make it harder for unions to represent employees at federal agencies. There are about 2.1 million federal workers; about half of them are represented by unions.

The hearing will be held at FLRA headquarters in Washington at 9 a.m. Jan. 7. The DOJ declined to comment, citing the department’s policy against discussing ongoing litigation.

‘Monitored and Micromanaged’

The NAIJ will argue at the hearing that immigration judges, because of changes made by the Trump administration, have less autonomy than they did before, not more, Tabaddor said.

The Justice Department during the past couple of years established case processing quotas for the judges, which as a practical matter has restricted the judges’ ability to make decisions about how they handle cases, she said. The administration appears to be looking to turn the immigration court system into a “factory” that will push its law enforcement policies rather than provide due process, Tabaddor said.

“What we’re seeing is an effort to stop the judges from speaking out” about the changes by decertifying their union, she said.

Immigration judges are being “monitored and micromanaged” in a way that’s getting in the way of independent decision-making, Tabaddor said in September. They’re facing a million-case backlog that’s growing even though the department is hiring new judges at a rapid clip and imposing work quotas on the judges to close a minimum of 700 cases each per year, she said then.

The backlog is currently about 1.1 million cases, according to the most recent figures from Syracuse University’s Transactional Records Access Clearinghouse, a data gathering, research, and distribution organization.

The administration likely is confident that it can prevail before the FLRA, but there are other ways to achieve the same result if it doesn’t, said Rachel Greszler, a research fellow at the Heritage Foundation, which describes its mission as supporting free enterprise and limited government.

“President Trump could presumably exclude immigration judges from unionization based on the argument that they perform national security work. Multiple past presidents have used this authority to exclude agencies and subdivisions from unionization due to their primary functions relating to national security, intelligence, counterintelligence, or investigative work,” she said.

To contact the reporter on this story: Louis C. LaBrecque in Washington at llabrecque@bloomberglaw.com

To contact the editors responsible for this story: Karl Hardy at khardy@bloomberglaw.com; Martha Mueller Neff at mmuellerneff@bloomberglaw.com

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