AFGE’S STROKE OF LITIGATION GENIUS
FLRA Member Jim Abbott wanders around town declaring that he is a “strict constructionist” or someone to applies the law as it is written without much, if any, consideration of tradition, common sense, legislative history, etc. Well, AFGE might be about to shove that phony-baloney legal philosophy down his throat. The union just filed a lawsuit claiming that the recent FSIP decision largely destroying the union’s ability to operate in the Social Security Administration is illegal because it does not apply the law as it is clearly written.
No other union in the 40-plus years under the statute has argued this before, which reflects so well on the creativity of AFGE’s staff. The union is claiming that FSIP lacked the power to make any decisions at the time it imposed the SSA one because the clear and unambiguous statutory language requires that there be seven members on the Panel for it to make decisions, i.e., “ The Panel shall be composed of a Chairman and at least six other members.” (5 USC 7119(c)(4)) It doesn’t say the “Panel generally should…,” or that the “Panel could …,” or even “it would be swell if the Panel had….” A total of seven members. The use of the word “shall” means it is required. No less an expert than the self-trumpeting, juju jurist himself Jimbo-the-Hypocrite Abbott made that clear less than two months ago in DHS and AFGE, 71 FLRA 119 (2019) when he defined the word “shall” that appears elsewhere in the same statute. The dictionary folks at Merriam-Webster say it means a command, mandate, exhortation, etc.
The AFGE attorneys are smart enough to know that the unprincipled Abbott and Kiko will not hesitate to have their lawyers argue that the word “shall” is not a requirement when used in Section 7119, but a mere goal or diaphanous construct. So, the union has already pointed to a back-up statutory argument. The statute specifically says that the FLRA can operate even when it does not have all three seats filled (5 USC 7104(d)); however, Congress did not include that authorization for the Panel. An honest “strict constructionist”– and there are a few—will rule that the failure to give the Panel the flexibility it gave the Authority must be interpreted to mean that the Panel does not have the power to decide cases or do anything else when it does not have at least seven members. When the Panel decided the SSA case, it did not have seven members. Hence, AFGE is asking a federal court to void the SSA decision. That will amount to a huge monkey wrench being tossed into the Trumpites’ plan to crush unions until they support a certain political cult.
So, “Bravo” AFGE. It is hard to underestimate what a brilliant litigation stroke this is. Everyone else missed it for 40 years. Let’s hope the judge you draw for this suit does not have posters of Sean Hannity pasted on his chamber ceilings.