United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued May 5, 1999 Decided August 3, 1999
No. 98-1452
Georgia State Chapter Association of Civilian Technicians,
Petitioner
v.
Federal Labor Relations Authority,
Respondent
On Petition for Review of an Order of the
Federal Labor Relations Authority
Daniel M. Schember argued the cause and filed the briefs
for petitioner.
Judith A. Hagley, Attorney, Federal Labor Relations Au-
thority, argued the cause for respondent. With her on the
brief were David M. Smith, Solicitor, and William R. Tobey,
Deputy Solicitor.
Before: Ginsburg, Sentelle, and Randolph, Circuit
Judges.
Opinion for the Court filed by Circuit Judge Randolph.
Randolph, Circuit Judge: Let us begin very simply. The
petitioner has raised several objections to a decision of the
Federal Labor Relations Authority. No one made these
objections, or any arguments in support of them, during the
administrative proceedings. The FLRA's opinion does not
address them. Congress, in 5 U.S.C. s 7123(c), decreed: "No
objection that has not been urged before the Authority ...
shall be considered by the court, unless the failure or neglect
to urge the objection is excused because of extraordinary
circumstances." The particular "failure or neglect" encoun-
tered here cannot be excused. There are no extraordinary
circumstances. And so the petition for judicial review must
be denied. See EEOC v. FLRA, 476 U.S. 19, 22-23 (1986);
NLRB v. Seven-Up Bottling Co. of Miami, 344 U.S. 344, 350
(1953).
Now for the details. Petitioner is the Georgia State Chap-
ter of the Association of Civilian Technicians, a federal labor
union. It has a collective bargaining agreement with the
Office of the Adjutant General, Georgia Department of De-
fense. Section 5.2a(3) of the agreement gives the union, or
rather its members, a total of 2200 hours of paid administra-
tive leave1--otherwise known as "official time"--for certain
specified purposes, one of which is to visit elected representa-
tives regarding legislation that would affect union members.2
In August 1995, the union requested hours of official time for
__________
1 Administrative leave is "time granted an employee by an agency
to perform representational functions" and is considered hours of
work. See 5 C.F.R. s 551.424(b).
2 Section 5.2a states: "The Labor Organization is authorized two
thousand two hundred (2200) hours of administrative leave for the
following purposes: ... (3) Represent Technicians by visiting elect-
ed representatives in support or opposition to pending or desired
legislation which would impact the working conditions of Techni-
cians represented by [the Association of Civilian Technicians]."
eleven of its representatives to meet with Members of Con-
gress to discuss "matters of interest to the Union and the
employees it represents." See Georgia State Chapter Ass'n
of Civilian Technicians, 54 F.L.R.A. 654, 656 (1998). The
Georgia Office of the Adjutant General refused on the basis
that the contractual leave provision, to the extent it concerned
lobbying of Congress, was unlawful and hence unenforceable.
See id.
After management reiterated its position, the union filed an
unfair labor practice charge. The FLRA's General Counsel
issued a complaint alleging that this arm of the Defense
Department, by repudiating a provision of the collective bar-
gaining agreement, had violated s 7116(a)(1) and (5) of the
Federal Service Labor-Management Relations Act.3 See
Georgia State Chapter, 54 F.L.R.A. at 654. During the ensu-
ing administrative proceedings, the General Counsel contend-
ed that s 7102 grants employees the right to act in a repre-
sentational capacity and, in that capacity, to present the views
of their union to Congress.4 See Georgia State Chapter, 54
F.L.R.A. at 660. The Act also requires that union represen-
tatives "be granted official time" in an amount set by con-
tract. See 5 U.S.C. s 7131(d). In an anticipatory defense,
the General Counsel maintained that a criminal provision--18
U.S.C. s 1913--did not render the administrative leave provi-
sion illegal. The criminal provision forbids using appropriat-
ed funds "directly or indirectly to pay for any ... device,
intended or designed to influence in any manner a Member of
__________
3 5 U.S.C. s 7116(a) provides that "it shall be an unfair labor
practice for an agency--(1) to interfere with, restrain, or coerce any
employee in the exercise by the employee of any right under this
chapter; ... (5) to refuse to consult or negotiate in good faith with
a labor organization as required by this chapter."
4 5 U.S.C. s 7102(1) states that employees shall have the right to
form, join or assist any labor organization and that "such right
includes the right--to act for a labor organization in the capacity of
a representative and the right, in that capacity, to present the views
of the labor organization to heads of agencies and other officials of
the executive branch of the Government, the Congress, or other
appropriate authorities."
Congress ... [regarding] any legislation or appropriation,"
"in the absence of express authorization by Congress." 18
U.S.C. s 1913. Section 7102(1), the General Counsel con-
tended, is such an express congressional authorization. See
Georgia State Chapter, 54 F.L.R.A. at 660.
Although agreeing with the General Counsel about 18
U.S.C. s 1913, the FLRA held the disputed portion of the
contractual leave provision unenforceable on another ground.
Paying wages to union representatives for their lobbying of
Congress, the FLRA ruled, contradicted s 8015 of the De-
partment of Defense Appropriations Act, 1996. See Georgia
State Chapter, 54 F.L.R.A. at 665-66; see also Department of
Defense Appropriations Act, 1996, Pub. L. No. 104-61,
s 8015, 109 Stat. 636, 654 (1995). Section 8015 provides that
"[n]one of the funds made available by this Act shall be used
in any way, directly or indirectly, to influence congressional
action on any legislation or appropriation matters pending
before the Congress." See Pub. L. No. 104-61, s 8015, 109
Stat. 654. In so ruling, the FLRA adopted the contention of
the Defense Department in the brief it filed with the agency.
The union tells us that the FLRA erred, because the
Appropriations Act could not repeal the provisions of the
Federal Service Labor-Management Relations Act by impli-
cation; because the FLRA "overlooked its obligation to rec-
oncile the statutes"; because the FLRA's interpretation rais-
es a question under the First Amendment to the Constitution;
and because the labor statute is more specific than the
Appropriations Act. We can say with confidence that none of
these objections, none of these arguments, was ever urged
until the case arrived in this court. As we wrote in the
opening paragraph, that failure and neglect precludes us from
passing on the union's contentions. We do not have to deal
with any possible distinctions between, on the one hand,
preserving an "objection"--the term used in 5 U.S.C.
s 7123(c), and in its NLRB counterpart, 29 U.S.C. s 160(e)--
and, on the other hand, preserving an "issue," or a "claim," or
an "argument." Compare Seven-Up Bottling Co. of Miami,
344 U.S. at 350; Kamen v. Kemper Fin. Servs., Inc., 500 U.S.
90, 99 (1991); Yee v. City of Escondido, 503 U.S. 519, 534-35
(1992); Parsippany Hotel Management Co. v. NLRB, 99
F.3d 413, 417-18 (D.C. Cir. 1996). The fact of the matter is
that nothing was put before the FLRA to counter the De-
fense Department's contention that the Appropriations Act
rendered the contractual provision unenforceable. It is not
enough that the FLRA's General Counsel brought to the
agency's attention the maxim that a specific statute prevails
over a general one. This was said to explain why the criminal
provision (18 U.S.C. s 1913) did not override the provisions in
the Federal Service Labor-Management Relations Act. See
Georgia State Chapter, 54 F.L.R.A. at 660. Whether the
maxim should be applied to the Appropriations Act is another
question entirely, and one on which the General Counsel was
silent. See, e.g., United States Dep't of Commerce v. FLRA,
7 F.3d 243, 245 (D.C. Cir. 1993).
Section 7123(c) permits us to pass on an objection even
though it has not been urged before the FLRA if "extraordi-
nary circumstances" warrant excusing the failure. The union
points out that the FLRA requires simultaneous briefing.
See 5 C.F.R. s 2429.1(a) (1997), removed and reserved, Unfair
Labor Practice Proceedings: Miscellaneous and General Re-
quirements, 62 Fed. Reg. 40,911, 40,922 (July 31, 1997). The
Defense Department's arguments regarding the 1996 Appro-
priations Act, the union tells us, were unanticipated. Be that
as it may, leave to file a reply brief setting forth the argu-
ments in opposition was never sought. See 5 C.F.R.
s 2429.26(a); see Garment Workers v. Quality Mfg. Co., 420
U.S. 276, 281 n.3 (1975); NLRB v. FLRA, 2 F.3d 1190, 1195
(D.C. Cir. 1993). Nor did the union request reconsideration
of the FLRA's decision. See 5 C.F.R. s 2429.17.
It is true that we have considered and ruled on objections
first raised on judicial review when the FLRA rested its
decision on a ground neither party had argued, so long as a
request for reconsideration appeared clearly doomed. See
United States Dep't of Commerce, 7 F.3d at 245; United
States Dep't of Interior v. FLRA, 969 F.2d 1158, 1161 (D.C.
Cir. 1992). The situation here is not comparable. In the first
place, the FLRA did not sua sponte raise the Appropriations
Act; the Defense Department argued the point to the agency.
Second, it is not so plain that a request for reconsideration
would have been futile. Shortly before issuing its opinion in
this case, the FLRA handed down two decisions--Office of
the Adjutant General, New Hampshire National Guard, 54
F.L.R.A. 301, 310-11 (1998), and Headquarters, National
Guard Bureau Washington, D.C. Nevada Air National
Guard, Reno, Nevada, 54 F.L.R.A. 316, 325 (1998). The union
describes these cases as identical to its case, and states that
in both, the FLRA rejected the arguments the union wishes
us to consider. But the factual setting of those cases was not
the same as this one and, in any event, the FLRA's opinions
do not even deal with several of the arguments contained in
the union's brief in this court. We have no doubt that these
precedents would have put the union in the position of waging
an uphill battle in getting the FLRA to reconsider, but "the
requirement that a litigant present such a petition is ordinari-
ly not excused simply 'because the [FLRA] was unlikely to
have granted it.' " Compare NLRB v. FLRA, 2 F.3d at 1196.
The petition for review is denied.