US Department of the Navy v. FLRA

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued September 20, 2011 Decided January 13, 2012

No. 10-1304

UNITED STATES DEPARTMENT OF THE NAVY,
NAVAL UNDERSEA WARFARE CENTER DIVISION
NEWPORT, RHODE ISLAND,
PETITIONER

v.

FEDERAL LABOR RELATIONS AUTHORITY,
RESPONDENT

On Petition for Review of an Order of
the Federal Labor Relations Authority

Mark W. Pennak, Attorney, U.S. Department of Justice,
argued the cause for petitioner. With him on the briefs were
Tony West, Assistant Attorney General, and William Kanter,
Attorney.

Rosa M. Koppel, Solicitor, Federal Labor Relations
Authority, argued the cause and filed the brief for respondent.
 2
Before: GINSBURG, 1 HENDERSON, and KAVANAUGH,
Circuit Judges.

Opinion for the Court filed by Circuit Judge KAVANAUGH.

KAVANAUGH, Circuit Judge: This case turns on whether
a government agency may provide employees with free
bottled water even when safe and drinkable water is available
from water fountains at their work sites. Under federal
appropriations law, the answer is no.

In the mid-1990s, the Naval Undersea Warfare Center
Division in Newport, Rhode Island, began providing
employees with bottled water. It did so after an EPA report
indicated that water fountains in some Navy buildings in
Newport contained components manufactured with lead.
Beginning in 2005, however, the Navy replaced the
problematic water fountains, tested the tap water, and
determined it safe to drink. The Navy then stopped providing
bottled water; it did not negotiate with employee unions
before removing the bottled water. The Navy reasoned that
an agency has no duty or authority to bargain over or grant
benefits that are prohibited by federal appropriations law.
And the Navy concluded that providing bottled water when
safe and drinkable tap water was available would violate the
legal prohibition against use of appropriated funds for
employees’ personal expenses.

The unions representing civilian employees at the
Newport facilities objected to the removal of the bottled water
and filed grievances with the Navy. When negotiations did
not yield a compromise, the unions sought binding arbitration.
An arbitrator sided with the unions and ordered the Navy to

1
As of the date this opinion was published, Judge Ginsburg
had assumed senior status.
 3
continue providing bottled water on the ground that bottled
water had become a condition of employment. The Federal
Labor Relations Authority – an independent government
agency responsible for adjudicating federal labor-
management disputes – affirmed the arbitrator’s decision,
holding that the Navy had a duty to bargain with the unions
before removing the bottled water. The Navy petitioned for
review in this Court.

Decisions of the Supreme Court and this Court have
strictly enforced the constitutional requirement, implemented
by federal statutes, that uses of appropriated funds be
authorized by Congress. See U.S. CONST. art. I, § 9, cl. 7; 31
U.S.C. § 1301 et seq. Funds appropriated for agency
operations may be used for “necessary expenses” but not for
employees’ “personal expenses.” As the Comptroller General
has long determined, when safe and drinkable tap water is
available in the workplace, bottled water constitutes a
personal expense for which appropriated funds may not be
expended. Under federal collective bargaining law,
moreover, an agency has no duty or authority to bargain over
or grant benefits that are “inconsistent with any Federal law.”
5 U.S.C. § 7117(a)(1). Therefore, if safe and drinkable tap
water was available at the Newport facilities, the Navy had no
authority or duty to bargain before removing the bottled
water.

We therefore vacate the decision of the Federal Labor
Relations Authority and remand this case to the Authority to
determine whether the tap water is in fact safe to drink. If the
Authority concludes that the tap water is safe to drink, the
Authority must rule for the Navy.
 4
I

The Naval Undersea Warfare Center Division in
Newport, Rhode Island, develops and supports submarine
warfare systems for the U.S. Navy. Civilian employees at the
Newport facilities are represented by two unions: (i) the
National Association of Government Employees, Local R1-
134, known as NAGE, and (ii) the Federal Union of Scientists
and Engineers, Local R1-144, known as FUSE. NAGE
negotiated a collective bargaining agreement with the Navy;
FUSE had a grievance procedure agreement with the Navy,
but no collective bargaining agreement.

The Navy began providing bottled water at the Newport
facilities in the mid-1990s after it discovered that water
fountains in some buildings were manufactured with
components containing lead. Beginning in 2005, the Navy
replaced those fountains with newer, lead-free models. The
base command then re-tested the base’s tap water sources. In
2006, after determining that the base’s tap water was safe to
drink, the Navy stopped providing bottled water. The base
commander sent out a base-wide email assuring staff that the
tap water was safe. The email informed base personnel that
federal appropriations law precluded the Navy from providing
bottled water given that safe and drinkable tap water was
available.

The unions filed grievances under their negotiated
dispute resolution procedures, arguing as relevant here that
the Navy had a duty to bargain with them before removing the
bottled water. When the grievances were not resolved
through negotiation, the unions sought binding arbitration.

The arbitrator found that any change in the practice of
providing bottled water “required conferring and negotiating
between the parties bound by the Collective Bargaining
 5
Agreement(s).” In re Arbitration Between Dep’t of the Navy,
Naval Undersea Warfare Ctr., Div. Newport & FUSE/NAGE
R1-144 & NAGE R1-134, FMCS Case No. 070330-55282-3,
at 8 (June 19, 2008). The arbitrator declined to consider the
Navy’s argument that federal appropriations law barred it
from providing bottled water. The arbitrator said that looking
to federal appropriations law “would be looking outside of the
Collective Bargaining Agreement between the parties.” Id. at
9.

The Navy filed exceptions to the arbitration award with
the Federal Labor Relations Authority. See 5 U.S.C.
§ 7122(a). As relevant here, the Navy challenged the award
on the grounds that (1) the arbitrator refused to consider its
argument that federal appropriations law precluded it from
providing bottled water, and (2) the arbitrator’s findings drew
no distinction between NAGE and FUSE, even though only
NAGE had a collective bargaining agreement with the Navy.
See Agency’s Exceptions to Arbitrator Jerome H. Wolfson’s
June 19, 2008 Award & Opinion at 12, 15, 20, Dep’t of the
Navy, Naval Undersea Warfare Ctr. Div. Newport, R.I., 64
F.L.R.A. 1136 (2010).

The Authority denied the exceptions and affirmed the
arbitrator’s conclusion that the Navy was obligated to bargain
before removing the bottled water. Dep’t of the Navy, Naval
Undersea Warfare Ctr. Div. Newport, R.I., 64 F.L.R.A. 1136,
1138-40 (2010). The Authority agreed with the arbitrator’s
determination that the Navy’s “provision of bottled water for
many years was an established past practice” at the Newport
facilities and thus a “condition of employment,” which the
Navy could not change without bargaining with the unions.
Id. at 1139. The Authority rejected the Navy’s argument that
federal appropriations law precluded the Navy from supplying
bottled water, stating that “[n]one of the Comptroller General
 6
decisions . . . permits unilateral termination of a practice to
provide bottled water.” Id. The Navy petitioned for review in
this Court.

II

Before reaching the merits of the Navy’s arguments, we
first consider whether we have jurisdiction to review the
Authority’s decision. To simplify the jurisdictional question:
If the Authority’s decision was based solely on the collective
bargaining agreement between the Navy and NAGE, then we
do not have jurisdiction. But if the Authority’s decision was
based on the Navy’s statutory bargaining obligations, and not
solely on the Navy’s obligations under the collective
bargaining agreement, then we do have jurisdiction. We
conclude that the Authority’s decision was based on the
Navy’s statutory bargaining obligations, not on the collective
bargaining agreement. We therefore have jurisdiction.

A

The Federal Service Labor-Management Relations
Statute establishes a two-track system for resolving labor
disputes between federal agencies and government employee
unions. See Overseas Educ. Ass’n v. FLRA (OEA), 824 F.2d
61, 62 (D.C. Cir. 1987). The first track permits a union
alleging an unfair labor practice, as defined in 5 U.S.C.
§ 7116, to file a charge with the General Counsel of the
Federal Labor Relations Authority. The General Counsel
must investigate the charge and may commence an
administrative proceeding against the agency if the charge has
merit. 5 U.S.C. § 7118(a)(1)-(2). The Authority’s resolution
of a charge is subject to judicial review in the courts of
appeals. 5 U.S.C. § 7123(a).
 7
The second track – the track chosen by the unions in this
case – is binding arbitration. Every collective bargaining
agreement between an agency and a union must include a
negotiated grievance procedure, and every grievance
procedure must allow a party dissatisfied with the outcome of
the grievance negotiations to opt for binding arbitration. 5
U.S.C. § 7121(a)(1), (b)(1)(C)(iii). Once the arbitrator
reaches a decision, either party may file exceptions to the
arbitrator’s award with the Federal Labor Relations Authority.
5 U.S.C. § 7122(a). The Authority reviews the arbitration
award to ensure that it is not “contrary to any law, rule, or
regulation,” or otherwise deficient on any ground “similar to
those applied by Federal courts in private sector labor-
management relations.” Id.

An aggrieved party may elect either track – the statutory
complaint procedure or binding arbitration – but not both. 5
U.S.C. § 7116(d).

When the aggrieved party chooses the second track, the
Authority’s order resolving the exceptions to the arbitration
award is ordinarily not judicially reviewable. 5 U.S.C.
§ 7123(a)(1). Insulating arbitration awards from judicial
review reflects “a strong Congressional policy favoring
arbitration of labor disputes” and furthers “Congress’s interest
in providing arbitration results substantial finality.” Ass’n of
Civilian Technicians, N.Y. State Council v. FLRA, 507 F.3d
697, 699 (D.C. Cir. 2007) (internal quotation marks omitted).

However, a narrow exception exists. Section 7123(a)
provides:

(a) Any person aggrieved by any final order of the
Authority other than an order under –
(1) section 7122 of this title (involving an award
by an arbitrator), unless the order involves an
 8
unfair labor practice under section 711[6] 2 of
this title, or
(2) section 7112 of this title (involving an
appropriate unit determination),
may, during the 60-day period beginning on the date on
which the order was issued, institute an action for judicial
review of the Authority’s order in the United States court
of appeals in the circuit in which the person resides or
transacts business or in the United States Court of Appeals
for the District of Columbia.

Therefore, under Section 7123(a), an FLRA order reviewing
an arbitration award is subject to judicial review if it
“involves an unfair labor practice” under Section 7116. 3

B

The Authority argues that its decision in this case is not
subject to judicial review – that is, that the decision did not
“involve” a statutory unfair labor practice – because the
Authority’s opinion does not explicitly discuss a statutory
“unfair labor practice.” That argument contravenes this
Court’s precedents. We have not interpreted Section
7123(a)(1) to depend on whether the Authority explicitly
discussed a specific statutory unfair labor practice. Instead,
“the standard is that a statutory unfair labor practice must be
either an explicit ground for, or be necessarily implicated by,

2
The statutory text refers to “section 7118.” That reference
“has been recognized to be an error; the correct reference is to
section 7116.” OEA, 824 F.2d at 63 n.2.
3
Refusing “to consult or negotiate in good faith with a labor
organization” constitutes a statutory “unfair labor practice” under
Section 7116(a)(5). The statutory unfair labor practice at issue here
is the Navy’s refusal to negotiate over a change to a condition of
employment.
 9
the Authority’s decision.” OEA, 824 F.2d at 67-68 (emphasis
added) (footnote omitted). Where a successful claim could
not possibly have been upheld based on the contract because
the contract provided no ground for the Authority’s decision,
the Authority’s decision necessarily implicates a statutory
unfair labor practice. That is what happened here.

For several reasons, it is apparent that the Authority
derived the Navy’s duty to bargain over the removal of
bottled water – that is, to bargain over a change to a condition
of employment – from the statute, not from the collective
bargaining agreement.

First, the Authority did not identify any provision of the
collective bargaining agreement as creating a duty to bargain
over the manner in which the Navy provided safe drinking
water. Neither did the arbitrator. Our decision in National
Treasury Employees Union v. FLRA (NTEU), the companion
case to Overseas Education Association, provides a useful
comparison. See 824 F.2d at 68. In NTEU, the union argued
that the Customs Service had breached its “duty to bargain”
by “failing to negotiate with respect to the changes in
overtime practices.” Id. The union grounded its claim on its
collective bargaining agreement, which provided that “the
Union has the right to bargain over the procedures which the
Employer will observe in exercising its management rights
authority.” Id. Because the union “affirmatively chose to
invoke the agreement, not the statute,” the Court found that it
did not have jurisdiction under Section 7123(a)(1), even
though “the contractual provision at issue mirrors the Act.”
Id. at 69.

Here, by contrast, there is no contractual provision that
“mirrors,” or even approximates, the statutory duty “to
consult or negotiate in good faith with a labor organization.”
 10
5 U.S.C. § 7116(a)(5). The only relevant provision of the
NAGE Collective Bargaining Agreement is article 25, section
6. That section requires the Navy to provide “high quality
drinking and wash water facilities” but says nothing about
bargaining over the manner in which the Navy fulfills that
obligation – that is, by water fountains or bottled water. J.A.
63.

Second, the Authority’s discussion of the “duty to
bargain” over changed conditions of employment relies on its
own case law discussing statutory unfair labor practices, not
contractual grievances. The Authority’s order cites its prior
decisions in DOL I and DOL II, see 64 F.L.R.A. at 1139,
where it held that the Department of Labor committed a
statutory unfair labor practice by failing to bargain over the
removal of water coolers. See Dep’t of Labor (DOL I), 37
F.L.R.A. 25, 36 (1990) (“[W]e conclude that DOL . . .
violated section 7116(1) and (5) of the Statute when they
decided to remove and/or stop paying for the water coolers
without giving the Union notice and an opportunity to bargain
over the decision to do so.”) (emphasis added); Dep’t of
Labor (DOL II), 38 F.L.R.A. 899, 910 (1990) (“The
Respondent Violated Section 7116(a)(1) and (5) of the
Statute”). The Authority’s reliance on its statutory unfair
labor practice case law further demonstrates that it derived the
Navy’s duty to bargain over the bottled water from the statute,
not from any contractual provision.

Third, of the two unions that brought the initial
grievances, only one – NAGE – even had a collective
bargaining agreement with the Navy. The other – FUSE –
had negotiated a grievance procedure agreement (which it
invoked in this case) but no collective bargaining agreement.
With respect to FUSE, the Authority’s contention that the
claim “was litigated solely as a contractual violation” is thus
 11
illogical. FLRA Br. at 20. There simply was no contract on
which the “duty to bargain” with FUSE could have been
predicated.

The Authority’s decision necessarily involved a statutory
unfair labor practice. Therefore, this Court has jurisdiction
under Section 7123(a)(1).

III

We therefore proceed to the substantive question raised
by the Navy’s petition: whether the Authority’s order
compelling the Navy to provide bottled water at its Newport
facilities is consistent with federal appropriations law.

A

The Appropriations Clause of the Constitution provides:
“No Money shall be drawn from the Treasury, but in
Consequence of Appropriations made by Law . . . .” U.S.
CONST. art. I, § 9, cl. 7. The Clause’s words convey a
“straightforward and explicit command”: No money “can be
paid out of the Treasury unless it has been appropriated by an
act of Congress.” Office of Personnel Mgmt. v. Richmond
(OPM), 496 U.S. 414, 424 (1990) (quoting Cincinnati Soap
Co. v. United States, 301 U.S. 308, 321 (1937)) (internal
quotation marks omitted). The Clause protects Congress’s
“exclusive power over the federal purse.” Rochester Pure
Waters Dist. v. EPA, 960 F.2d 180, 185 (D.C. Cir. 1992). The
power over the purse was one of the most important
authorities allocated to Congress in the Constitution’s
“necessary partition of power among the several
departments.” THE FEDERALIST NO. 51, at 320 (James
Madison) (Clinton Rossiter ed., 1961); see also id. NO. 58, at
359 (James Madison) (“This power over the purse may, in
fact, be regarded as the most complete and effectual weapon
 12
with which any constitution can arm the immediate
representatives of the people, for obtaining a redress of every
grievance, and for carrying into effect every just and salutary
measure.”).

The Appropriations Clause is thus a bulwark of the
Constitution’s separation of powers among the three branches
of the National Government. It is particularly important as a
restraint on Executive Branch officers: If not for the
Appropriations Clause, “the executive would possess an
unbounded power over the public purse of the nation; and
might apply all its monied resources at his pleasure.” 3
JOSEPH STORY, COMMENTARIES ON THE CONSTITUTION OF THE
UNITED STATES § 1342, at 213-14 (1833); see also Cincinnati
Soap Co., 301 U.S. at 321 (the Clause “was intended as a
restriction upon the disbursing authority of the Executive
department”); Reeside v. Walker, 52 U.S. 272, 291 (1851)
(“However much money may be in the Treasury at any one
time, not a dollar of it can be used in the payment of any thing
not thus previously sanctioned. Any other course would give
to the fiscal officers a most dangerous discretion.”). The
Appropriations Clause prevents Executive Branch officers
from even inadvertently obligating the Government to pay
money without statutory authority. See OPM, 496 U.S. at
416; see also Dep’t of the Air Force v. FLRA, 648 F.3d 841,
845 (D.C. Cir. 2011).

Federal statutes reinforce Congress’s control over
appropriated funds. See 31 U.S.C. § 1301 et seq.; see also
Harrington v. Bush, 553 F.2d 190, 194-95 (D.C. Cir. 1977)
(“This clause is not self-defining and Congress has plenary
power to give meaning to the provision. The Congressionally
chosen method of implementing the requirements of Article I,
section 9, clause 7 is to be found in various statutory
provisions.”) (footnote omitted).
 13
Section 1301, known as the “Purpose Statute,” provides
that appropriated funds may be applied only “to the objects
for which the appropriations were made.” 31 U.S.C.
§ 1301(a). Section 1341, known as the Anti-Deficiency Act,
makes it unlawful for government officials to “make or
authorize an expenditure or obligation exceeding an amount
available in an appropriation” or to involve the Federal
Government “in a contract or obligation for the payment of
money before an appropriation is made unless authorized by
law.” 31 U.S.C. § 1341(a)(1)(A)-(B). A government official
who knowingly and willfully violates Section 1341(a) is
subject to criminal penalties, including imprisonment. 31
U.S.C. § 1350.

Federal collective bargaining is not exempt from the rule
that funds from the Treasury may not be expended except
pursuant to congressional appropriations. Indeed, the statute
governing federal labor relations explicitly relieves agencies
of the duty to bargain over any matter that would be
“inconsistent with any Federal law or any Government-wide
rule or regulation.” 5 U.S.C. § 7117(a)(1). Therefore, under
Section 7117, “a collective bargaining proposal is contrary to
law, and hence not subject to bargaining, if it requires
expenditure of appropriated funds for a purpose not
authorized by law.” Air Force, 648 F.3d at 848 (quoting
Ass’n of Civilian Technicians, P.R. Army Chapter v. FLRA
(ACT III), 534 F.3d 772, 776 (D.C. Cir. 2008)); see also Ass’n
of Civilian Technicians, P.R. Army Chapter v. FLRA (ACT II),
370 F.3d 1214, 1217 (D.C. Cir. 2004).

Congress’s control over federal expenditures is
“absolute.” Rochester, 960 F.2d at 185 (internal quotation
marks omitted). The Clause does not permit an agency, by
contract with a union, “to authorize the expenditure of funds
beyond what Congress has approved.” Air Force, 648 F.3d at
 14
845; see also Ass’n of Civilian Technicians, P.R. Army
Chapter v. FLRA (ACT I), 269 F.3d 1112, 1116 (D.C. Cir.
2001) (“This is not to say that the expenditure of appropriated
funds in a manner not authorized by law is negotiable – it is
not.”); 1 GAO, PRINCIPLES OF FEDERAL APPROPRIATIONS LAW
4-9 (3d ed. 2004) (“an agency cannot use the device of a
contract, grant, or agreement to accomplish a purpose it could
not do by direct expenditure”).

The question, then, is whether providing bottled water
under these circumstances would violate federal
appropriations law. If it would, then the Navy cannot
continue providing bottled water at the Newport facilities and
cannot bargain over that issue with the unions.

B

We have established so far that an agency’s obligations
under federal collective bargaining law are circumscribed by
the limitations imposed by federal appropriations law.
Therefore, whether the Navy had a duty to bargain depends
on whether federal appropriations law permits the purchase of
bottled water where safe and drinkable tap water is available.

The Authority ruled that using appropriated funds to
purchase bottled water at the Newport facilities would not
contravene federal appropriations law. Dep’t of the Navy,
Naval Undersea Warfare Ctr. Div. Newport, R.I., 64 F.L.R.A.
1136, 1139-40 (2010). The FLRA is entitled to “considerable
deference” when interpreting and applying the Federal
Service Labor-Management Relations Statute, its “own
enabling statute.” ACT III, 534 F.3d at 776 (quoting Bureau
of Alcohol, Tobacco & Firearms v. FLRA, 464 U.S. 89, 97
(1983); ACT II, 370 F.3d at 1219). It receives no deference,
however, when it “has endeavored to reconcile its organic
statute with another statute” – such as a federal appropriations
 15
statute – “not within its area of expertise.” Air Force, 648
F.3d at 846 (quoting Dep’t of Veterans Affairs v. FLRA, 9
F.3d 123, 126 (D.C. Cir. 1993)) (internal quotation marks,
brackets, and ellipses omitted); see also Ass’n of Civilian
Technicians, Tony Kempenich Mem’l Chapter 21 v. FLRA,
269 F.3d 1119, 1121 (D.C. Cir. 2001); SSA v. FLRA, 201 F.3d
465, 471 (D.C. Cir. 2000).

A core tenet of appropriations law is enshrined in 31
U.S.C. § 1301(a), the “Purpose Statute,” which commands:
“Appropriations shall be applied only to the objects for which
the appropriations were made except as otherwise provided by
law.” Under Section 1301(a), in order for appropriated funds
to be legally available for an expenditure, “the purpose of the
obligation or expenditure must be authorized.” 1 GAO,
PRINCIPLES OF FEDERAL APPROPRIATIONS LAW at 4-6.

To begin with, the relevant appropriations statute does
not specifically prohibit the purchase of bottled water. But by
the same token, no statutory language explicitly authorizes
the purchase of bottled water here. And all uses of
appropriated funds must be affirmatively approved by
Congress; the mere absence of a prohibition is not sufficient.

The question then is whether, and under what
circumstances, a general appropriation for an agency’s
operations implicitly authorizes the purchase of bottled water.

The Comptroller General has developed the “necessary
expense” doctrine as a rule of construction for appropriations
statutes. 4 That doctrine governs the many situations where, as

4
The Comptroller General is a legislative official who heads
the Government Accountability Office. See 31 U.S.C. § 702(b).
The Comptroller General is appointed to a 15-year term by the
President with the advice and consent of the Senate. See 31 U.S.C.
 16
here, general statutory text leaves open whether a specific
proposed expenditure is a legally authorized purpose for
which appropriated funds may be expended. See ACT II, 370
F.3d at 1221-22. This Court regards “the assessment of the
GAO and thus, the Comptroller General as an expert opinion,
which we should prudently consider but to which we have no
obligation to defer.” ACT I, 269 F.3d at 1116 (quoting Delta
Data Systems Corp. v. Webster, 744 F.2d 197, 201 & n.1
(D.C. Cir. 1984) (Scalia, J.)) (internal quotation marks and
brackets omitted); see also Delta Data Systems, 744 F.2d at
201 n.1 (“Since the GAO has been thought to be an arm of the
legislature, there might be a constitutional impediment to such
binding effect.”) (internal quotation marks and citation
omitted). Here, moreover, the Navy – an executive agency
represented by the Department of Justice – agrees with the
Comptroller General’s analysis. That said, although we
consider the Comptroller General’s reasoning to the extent it
is persuasive, “it is the court that has the last word.” Id. at
202 (internal quotation marks and brackets omitted).

Under the necessary expense doctrine, “[a]n
appropriation made for a specific object is available for
expenses necessarily incident to accomplishing that object
unless prohibited by law or otherwise provided for.” 1 GAO,
PRINCIPLES OF FEDERAL APPROPRIATIONS LAW at 4-20; see
also ACT II, 370 F.3d at 1218; Public Building Improvements,
42 Comp. Gen. 226, 228 (1962). Whether an expenditure is
reasonably necessary to accomplish the agency’s mission, “in

§ 703(a)(1), (b). The President selects a nominee from a list of
candidates prepared by a commission of congressional leaders. See
31 U.S.C. § 703(a). Once appointed, the Comptroller General is
removable only by Congress and only for cause. See 31 U.S.C.
§ 703(e)(1); see also Bowsher v. Synar, 478 U.S. 714, 730 (1986)
(“In constitutional terms, the removal powers over the Comptroller
General’s office dictate that he will be subservient to Congress.”).
 17
the first instance, is a matter of agency discretion,” but the
expenditure’s “relationship to an authorized purpose or
function” may be “so attenuated as to take it beyond that
range” of permissible discretion. Implementation of Army
Safety Program, B-223608 (Comp. Gen. Dec. 19, 1988).

The Comptroller General “has never established a precise
formula for determining the application of the necessary
expense rule”; rather, it applies and develops the doctrine
through its “body of case law responsive to the changing
needs of government.” 1 GAO, PRINCIPLES OF FEDERAL
APPROPRIATIONS LAW at 4-21. That case law distinguishes
necessary expenses, on which appropriated funds may be
expended, from “personal expenses,” on which they may not
be expended. See Scope of Professional Credentials Statute,
B-302548, at 3 (Comp. Gen. Aug. 20, 2004) (“Generally,
personal expenses are not payable from appropriated funds
absent specific statutory authority.”). Personal expenses are
items that government employees are expected to obtain at
their own expense, like food while at their regular workplaces
(that is, not on government travel). See GAO, 1 PRINCIPLES
OF FEDERAL APPROPRIATIONS LAW at 4-103 (“food is a
personal expense and government salaries are presumed
adequate to enable employees to eat regularly”).

The Comptroller General’s case law has analyzed when
agencies may purchase bottled water under the necessary
expense doctrine. As a threshold matter, “it has long been
conceded that drinking water is a necessity” at the workplace.
Id. at 4-119 n.70. “However, an agency may not use
appropriated funds for bottled drinking water for the use of
employees where the public water supply of the locality is
safe for drinking purposes.” Id. (emphasis added). That is
because, “[a]s a general proposition, bottled water is a
personal expense for which appropriations are not available.”
 18
Dep’t of the Army, Military Surface Deployment &
Distribution Command – Use of Appropriations for Bottled
Water, B-318588, at 1 (Comp. Gen. Sept. 29, 2009).

Bottled water is considered “necessary” – and thus may
be purchased with appropriated funds – when “the available
water posed a health risk if consumed, or because water was
not available.” Id. at 2-3. The line of Comptroller General
decisions articulating this rule dates back at least to 1923. See
Purchase of Drinking Water, 2 Comp. Gen. 776, 776 (1923)
(“The purchase of drinking water is, ordinarily, a personal
matter, and the expense may only be allowed upon the ground
of necessity. It has been recognized as a duty upon the
Government to supply drinking water where none is available
in the offices or other public quarters or where that furnished
is unwholesome or not potable.”); see also, e.g., Dep’t of the
Army – Use of Appropriations for Bottled Water, B-310502,
at 3 (Comp. Gen. Feb. 4, 2008); Clarence Maddox – Relief of
Liability for Improper Payments for Bottled Water, B-303920,
at 2-3 (Comp. Gen. Mar. 21, 2006); U.S. Agency for Int’l
Development – Purchase of Bottled Drinking Water, B-
247871 (Comp. Gen. Apr. 10, 1992).

Under the Comptroller General’s longstanding reading of
the statute, an agency would violate 31 U.S.C. § 1301 if it
provided bottled water when safe and drinkable tap water is
available. The Navy – represented by the Department of
Justice – concurs in that reasoning and conclusion.

We agree with that interpretation of the statute.
Permitting bottled water purchases only upon a showing of
such necessity recognizes that “an agency, as an employer, is
expected to meet certain basic needs of its employees,
particularly when it comes to protecting an employee’s health
and safety in the workplace.” Dep’t of the Army – Use of
 19
Appropriations for Bottled Water, B-310502, at 4. That rule
balances that appropriate solicitude for employee health with
the principle that food, including “snacks and refreshments,”
“is a personal expense which a Government employee is
expected to bear from his or her salary.” 1 GAO, PRINCIPLES
OF FEDERAL APPROPRIATIONS LAW at 4-103 & n.58 (internal
quotation marks omitted); see also id. at 4-103 (“In addition
to the obvious reason that food is a personal expense and
government salaries are presumed adequate to enable
employees to eat regularly, furnishing free food might violate
5 U.S.C. § 5536, which prohibits an employee from receiving
compensation in addition to the pay and allowances fixed by
law.”) (footnote omitted). Providing bottled water when safe
and drinkable tap water is available would serve no purpose
other than accommodating employees’ personal tastes – a
purpose that generally cannot justify the expenditure of
appropriated funds.

The general rule prohibiting such expenditures serves to
“ensure public confidence in the integrity of those who spend
the taxpayers[’] money.” Id. at 4-108. In light of this
overriding goal, the prohibition on bottled water when safe
and drinkable tap water is available strikes us as the correct
application of the Purpose Statute. Therefore, if the tap water
at the Newport facilities is safe and drinkable, the purchase of
bottled water with appropriated funds would violate federal
appropriations law – and the Navy would have no authority or
duty to bargain with the unions before discontinuing the
provision of free bottled water. See U.S. Agency for Int’l
Development, B-247871 (“We conclude that the OIG may use
appropriated funds to purchase bottled drinking water for its
employees until the problems with the building’s water supply
are adequately corrected and the water is shown to be safe.”)
(emphasis added).
 20
C

The remaining question is whether the tap water at the
Newport facilities is in fact safe to drink. The Navy argues
that the decisions in the related Cain arbitrations conclusively
establish that the tap water is safe to drink. Those arbitrations
were not in the record before the Authority. The Navy did,
however, raise at every stage of the proceedings the argument
that the tap water was safe to drink and that the Navy
therefore had no discretion to provide bottled water. Under
the circumstances, we think the prudent course is to remand to
the Authority for it to assess the Cain arbitrations and the
more fundamental question whether the tap water is in fact
safe to drink. If the water at the Newport facilities is safe to
drink, then the Authority must rule for the Navy.

* * *

We grant the petition for review, vacate the FLRA’s
order, and remand this case for the Authority to determine
whether the tap water is in fact safe to drink. If the tap water
is in fact safe to drink, the FLRA must rule for the Navy.

So ordered.