The D.C. Circuit Court of Appeals just pantsed the two Trumpian toadies by not just overturning their decision in AFGE v. FLRA, Civ. No. 19-1069 (6/9/20), but also engaging in what amounts to a  public disrobing by a federal judicial panel. The three judges unanimously stripped the Abbott & Kiko decision for all to see that the two Trumpettes not only lacked elementary legal writing skills, but also even minimal legal integrity.  This is the FLRA decision that held–over Dubester’s strong and wise objection– that while unions were entitled to negotiate over changes in “conditions of employment,” they could not bargain changes in “working conditions.” Given the distinction between the two terms was and is vague, you would have thought Donald’s dupes would have explained to agencies how to practically distinguish between the two. But as the court pointed out “…the Authority fails to explain the differences between the terms or how the alleged differences matter….”  What Abbott & Kiko did is like a grammar school student tasked with homework to explain the difference between a coat and a jacket and simply turning in a paper declaring that they are different because the letters in the two words are mostly different.  But the Abbott-Kiko blunders did not stop there as the court went on to write that –

– Abbott & Kiko “misread United States Supreme Court precedent, … when, in fact, the point being made in Fort Stewart is the opposite” of what they concluded,

– Abbott & Kiko justified their misreading of the Supreme Court holding by “omitting” a critical term from that Court’s decision, but stopped short of referring them to a bar hearing for a most fundamental form of gross legal dishonesty,

– Abbott & Kiko’s legal analysis was “missing … any connection to the definition of conditions of employment in § 7103(a)(14).”

– Abbott-Kiko wrongly decided that the directions contained in the agency memorandum did not change anything when in reality…the Memo plainly changed something.” (Of course, it did.  Otherwise, why would management have needed to put out a formal memo if the message was business as usual?)

The D.C. Circuit judges wrapped up by noting that readers of the FLRA decision  “are left wondering how the Authority reached its decision that the CBP was free to issue the Memo without bargaining in light of § 7103(a)(14)’s language and so are we. Was it because the Memo did not affect working conditions? Was it because the Memo was not a personnel policy, practice or matter? Was it because of some other rule or exception?”  When a first-year law school student gets feedback like that it is a good sign s/he need not set aside funds to cover second year costs, but rather use the money to buy into an Avon products franchise.

Jim Abbott must feel particularly humiliated standing around in public right now given that it was just last month that he publicly criticized his colleagues for not issuing decisions as clearly written as he does. See our post entitled, “FLRA’s James Abbott Comes Out as Hypocrite Extraordinaire.”

Just in case there was any doubt as to how the Court judged the overall quality of the Abbott/Kiko decision, the judges ended their decision calling the FLRA’s conclusions “not the product of reasoned decision-making,” nor “sensibly explained.” Abbott and Kiko were given their work back and told to go rewrite it from scratch.

P.S.  Those of you taken by what the Kiko-Abbott omission of a key word from a quote from a Supreme Court decision says about their ethical values, should check out U.S. COURT CONFIRMS THAT ABBOTT & KIKO MANIPULATE EVIDENCE . If we were still in the day-to-day LR business, we would file charges with the U.S. Special Counsel, Office of Government Ethics, and their bar associations before we let this latest attempt at falsification disappear into history.  Here is a list of some of the Kiko-Abbott stories we have posted in the past if you want to get to know them more.








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FEDSMILL staff has over 40 years of federal sector labor relations experience on the union as well as management side of the table and even some time as a neutral.
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1 Response to

  1. Donald Bishop says:

    Jeez, my faith in the legal system has been redeemed. When this initial decision from the FLRA was rendered, I scratched my head, scratched it some more, and still could not fathom where they were going or why they decided as they did (except for the obvious of not giving a victory to labor). We’ll wait and see how they decide to rewrite, but I’m sure this is headed for the big decider.

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