Last year, the SEC filed with the District of Columbia Circuit Court of Appeals a Petition for Review of NTEU's Federal Labor Relations Authority (FLRA) victory in the 2002 within grade increase (WIGI) case. Briefs have been filed in this appeal, and the Court has scheduled oral argument for May 5. We hope to have a decision this summer.

NTEU originally commenced this case when it filed a complaint against the SEC in 2002, asserting that the agency had violated the law by unilaterally terminating WIGIs without first completing bargaining. The SEC ceased giving employees WIGIs as of May 19, 2002. This state of affairs continued for six months until November 8, 2002, when the Federal Service Impasses Panel finally issued a decision regarding the compensation negotiations impasse between NTEU and the SEC.

The SEC will be limited on appeal to the issues that it raised below, which have already been rejected both by Administrative Law Judge Richard Pearson and by the FLRA. Furthermore, the DC Circuit will consider these issues largely under the highly deferential substantial evidence standard of review, which is generally limited to determining whether the FLRA’s reasoning was supported by sufficient evidence from which it could have decided as it did. The DC Circuit typically will not second guess the FLRA’s judgment under that standard.