United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued October 10, 2001 Decided November 9, 2001
No. 00-1486
Association of Civilian Technicians,
Puerto Rico Army Chapter,
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.
David M. Smith, Solicitor, Federal Labor Relations Au-
thority, argued the cause for respondent. With him on the
brief were William R. Tobey, Deputy Solicitor, and Judith A.
Hagley, Attorney.
Before: Sentelle, Randolph and Garland, Circuit Judges.
Opinion for the Court filed by Circuit Judge Sentelle.
Sentelle, Circuit Judge: The Association of Civilian Tech-
nicians, Puerto Rico Army Chapter ("the Union"), petitions
this Court for review of the Federal Labor Relations Authori-
ty's ("FLRA" or "Authority") decision in which the FLRA
determined that a collective bargaining agreement provision
that seeks reimbursement for out-of-pocket losses resulting
from agency cancellation of previously approved leave is
contrary to law and therefore nonnegotiable. Petitioner ar-
gues that the FLRA erroneously applied the Travel Expenses
Act, 5 U.S.C. s 5701, et seq., to resolve the dispute and failed
to consider whether the provision was authorized under the
collective bargaining law, 5 U.S.C. s 7101, et seq. (Federal
Services Labor-Management Relations Statute). Because we
agree with the petitioner that the Travel Expenses Act does
not prohibit the proposed provision, we grant the petition for
review, vacate the decision and order of the FLRA, and
remand for proceedings consistent with this opinion.
I. Proceedings Below
The Association of Civilian Technicians, a federal employee
labor organization, filed a negotiability appeal with the FLRA
pursuant to 5 U.S.C. s 7105(a)(2)(E), concerning provisions of
a collective bargaining agreement that had been disapproved
by the head of the agency (the Department of Defense) as
contrary to law under 5 U.S.C. s 7114(c). Specifically, this
case involves the following provision:
Once leave has be[en] approved and the employer has a
compelling need to cancel the previously approved leave,
the employer agrees not to subject the employee to a loss
of funds expended in planning of the leave (i.e. hotel
reservations, airline tickets, etc.). The employee will
demonstrate the unavoida[bility] of the loss of funds.
Ass'n of Civilian Technicians, Puerto Rico Army Ch., 56
F.L.R.A. 493, 496 (2000). Both the Union and the agency
agreed that this provision would require the Department of
Defense to use appropriated funds to reimburse an employee
for certain losses of funds, including (but not limited to) lost
travel expenses, resulting from the agency's cancellation of
previously approved leave.
In its statement to the FLRA the agency objected to the
disputed provision on the grounds that the Comptroller Gen-
eral's decisions "consistently held that purely personal ex-
penses, such as forfeited hotel room deposits, dependent's
travel costs, and increased costs for alternate flight reserva-
tions, do not become a government obligation upon the can-
cellation of approved annual leave and may not be reim-
bursed." In one of those opinions, the Comptroller General
noted that its "own research ... has not revealed any law or
regulation under which we may authorize payment ... for the
additional personal travel expense incurred." Matter of:
John W. Keys, 60 Comp. Gen. 629 (1981). Thus the agency
concluded that "language which would agree to payment of
personal expenses as a blanket rule, when annual leave is
cancelled [sic] would create a violation of the Antideficiency
Act."
In response to the DOD, the Union noted that the Comp-
troller General's decisions were not dispositive because they
"by their own terms, do not prohibit collective bargaining
agreements." The Union accepted the "general principle that
expenditures are not authorized unless a law or regulation
affirmatively authorizes them." However, it suggested that
the collective bargaining provisions anticipate some expendi-
tures, otherwise, the sweep of this principle "would bar all
proposals costing money unless the expenditure affirmatively
were authorized by law or regulation," a scenario not contem-
plated by Congress, it argued, given the specificity of the
collective bargaining law.
The FLRA affirmed the agency's rejection of this provision
as contrary to law and therefore nonnegotiable. 56 F.L.R.A.
493 (2000). It first observed that "[t]he disbursement of
appropriated funds must be authorized by statute. Thus, the
use of appropriated funds to reimburse employees for travel
expenses must be authorized by statute." Id. at 497 (cita-
tions and footnote omitted). Following this observation, it
noted that "payment of employee travel expenses is governed
by the provisions of the Travel Expenses Act." Id. Because
the "Comptroller General administers and interprets the
Travel Expense[s] Act," the Authority "look[ed] for guidance
to decisions of the Comptroller General to determine whether
the Agency has authority to reimburse employees in the
circumstances presented here." Id. The FLRA found that
the "Comptroller General has consistently held that purely
personal expenses, such as forfeited hotel room deposits,
dependents' travel costs, and increased costs for alternate
flight reservations, may not be reimbursed upon the cancella-
tion of approved annual leave." Id. (citing Earl J. Barlow,
Comp. Gen. Decision B-241249 (1991)). Thus, the Authority
concluded that "given the nature of the reimbursement at
issue in this case, we agree with the Comptroller General that
no authority exists for agencies to use appropriated funds to
reimburse employees for purely personal expenses involved in
the planning of leave." Id.
The Union filed a motion for reconsideration before the
FLRA in which it argued that the Travel Expenses Act was
inapplicable. It further argued that the expenditures that
would be required by the disputed provision "are authorized
by the collective bargaining law, [5 U.S.C. s 7101, et seq.],
and therefore by the law that generally authorizes agency
expenditures." The Union cited two FLRA decisions, NTEU
and Department of the Treasury, BATF, 26 F.L.R.A. 497
(1987); and NFFE and GSA, 24 F.L.R.A. 430 (1986), which it
argued stood for the proposition that the "collective bargain-
ing law creates new agency obligations which general agency
appropriations may be used to meet." In the order denying
the motion for reconsideration, 56 F.L.R.A. 807 (2000), the
FLRA noted that the "Union contends that the Authority
erroneously applied the Travel Expenses Act and Federal
Travel Regulations" and that the Union believes that " 'gener-
al agency appropriations ... may be used to meet obligations
of collective bargaining agreements' when those agreements
are 'reasonably related' to the purpose of the collective bar-
gaining law." 56 F.L.R.A. at 807. The Authority dispensed
with the Union's arguments as follows:
The Union's first argument is that the Authority errone-
ously applied the Travel Expenses Act and its imple-
menting Federal Travel Regulations in finding that the
provision is contrary to law. By its own terms, however,
the provision requires the Agency, among other things,
to reimburse employees for hotel reservations and airline
tickets.... The provision clearly requires the Agency to
pay employees for lost travel expenses. Accordingly, in
[the case below] Puerto Rico National Guard, we applied
Comptroller General decisions which have interpreted
the Federal Travel Regulations to hold that agencies
have "no authority" to reimburse employees for the kind
of purely personal travel expenses that are set forth by
the terms of the provision.
Id. at 808.
Finally, the FLRA addressed the Union's "further
argu[ment] that 'the collective bargaining law' authorizes the
Agency to negotiate over the provision" and concluded that
"[b]ecause there is no duty to bargain over a provision that is
contrary to law, we reject the Union's argument." Id. The
Authority responded, in a footnote, to the decisions cited by
the Union by observing that "[c]onsistent with those cases, it
is well accepted that agencies are required to negotiate on
matters pertaining to the conditions of employment of unit
employees that are within the discretion of the agency under
law and are not otherwise nonnegotiable. In contrast, howev-
er, the provision in this case has been demonstrated to be
contrary to law." Id. n.5 (citations omitted).
The Union sought review in this Court.
II. Analysis
In reviewing the FLRA's interpretation of its own enabling
statute, we are "mindful that we owe great deference to the
expertise of the Authority as it 'exercises its special function
of applying the general provisions of the Act to the complexi-
ties of federal labor relations.' " NLRB Union, Local 6 v.
FLRA, 842 F.2d 483, 486 (D.C. Cir. 1988) (quoting BATF v.
FLRA, 464 U.S. 89, 97 (1983)). Here, however, we are faced
with the FLRA's interpretation of the Travel Expenses Act, a
statute not committed to the Authority's administration. We
review such purely legal questions de novo. See Social
Security Admin. v. FLRA, 201 F.3d 465, 471 (D.C. Cir. 2000)
("We do not defer to the FLRA's interpretation of ... a
general statute not committed to the Authority's administra-
tion."). The Authority's reliance on opinions of the Comptrol-
ler General does not change our analysis. As we have held,
"we regard the assessment of the GAO [and thus, the Comp-
troller General] as an expert opinion, which we should pru-
dently consider but to which we have no obligation to defer."
Delta Data Systems Corp. v. Webster, 744 F.2d 197, 201 & n.1
(D.C. Cir. 1984) (Scalia, J.) (concluding that "[s]ince the GAO
has been thought to be 'an arm of the legislature,' there
might be a constitutional impediment to such binding effect"
(citation omitted)); cf. Crandon v. United States, 494 U.S.
152, 177 (1990) ("[T]he vast body of administrative interpreta-
tion that exists--innumerable advisory opinions not only of
the Attorney General, the OLC, and the Office of Government
Ethics, but also of the Comptroller General and the general
counsels for various agencies--is not an administrative inter-
pretation that is entitled to deference under Chevron....").
With that standard of review in mind, we turn to the Authori-
ty's decision.
The FLRA's decision was premised on the assumption that
the Travel Expenses Act governs the disputed provision in
the collective bargaining agreement. It does not. The dis-
puted provision says that "[o]nce leave has be[en] approved
and the employer has a compelling need to cancel the previ-
ously approved leave, the employer agrees not to subject the
employee to a loss of funds expended in the planning of the
leave," and gives costs incurred from hotel reservations and
airline tickets as examples. 56 F.L.R.A at 496 (emphasis
added). That provision does not speak in terms of travel
expenses, personal, official, or otherwise. As the Union
notes, it requires the agency to "pay employees' out-of-pocket
losses (whether or not travel-related) when the agency--
acting for its convenience, and in its interest--exercises its
management right under 5 U.S.C. s 7106(a)(2)(B) to cancel
leave and assign work instead." In contrast, the Travel
Expenses Act, and specifically 5 U.S.C. s 5702, the provision
in question, only governs per diem and reimbursement when
an employee is "traveling on official business." The Union
proposal does not necessarily even involve canceled travel,
and it certainly does not address official business.
The FLRA cannot cite a single provision within the Travel
Expenses Act, much less s 5702, that prohibits the disputed
provision, expressly or impliedly. The Act addresses differ-
ent subject matter altogether. It authorizes official travel.
It does not by its terms prohibit anything. The Authority is
attempting to force a square peg into a round hole. No
faithful reading of the Travel Expenses Act, which establishes
"entitled" reimbursement or allowance "when traveling on
official business," 5 U.S.C. s 5702(a)(1), is relevant to the
disputed provision, which provides compensation for unavoid-
able expenses resulting from canceled leave. To force such a
reading turns the Travel Expenses Act on its head.
This is not to say that the expenditure of appropriated
funds in a manner not authorized by law is negotiable--it is
not. In an attempt to salvage its decision, the Authority now
argues that its decision was based on the general principle
that expenditures are not authorized unless a law or regula-
tion affirmatively authorizes them, and that there is no autho-
rization for the expenditure required by the disputed provi-
sion. But the Authority's decision was not based on a lack of
authorization for the expenditure. Rather, it is clear that the
FLRA's decision reasoned that because the Travel Expenses
Act did not authorize the expenditure, it was prohibited. The
Authority offered no other reason. Specifically, it did not rely
on the lack of authorization elsewhere in governing law.
Agency decisions must generally be affirmed on the grounds
stated in them. See, e.g., Fort Stewart Schools v. FLRA, 495
U.S. 641, 651-52 (1990) ("[I]t is elementary that if an agency's
decision is to be sustained in the courts on any rationale
under which the agency's factual or legal determinations are
entitled to deference, it must be upheld on the rationale set
forth by the agency itself."); SEC v. Chenery Corp., 318 U.S.
80, 93-95 (1943). Post-hoc rationalizations, developed for
litigation are insufficient. See Burlington Truck Lines, Inc.
v. United States, 371 U.S. 156, 168 (1962) ("The courts may
not accept appellate counsel's post hoc rationalizations for
agency action...."). If the Authority only based its decision
on the Travel Expenses Act, then that is the only rationale we
may consider.
In its original opinion below, under "Analysis and Conclu-
sions," the FLRA begins its analysis as follows: "The dis-
bursement of appropriated funds must be authorized by
statute. Thus, the use of appropriated funds to reimburse
employees for travel expenses must be authorized by statute."
56 F.L.R.A. at 497 (emphasis added). The FLRA clearly saw
the provision as one involving travel expenses and treated it
as squarely governed by the Travel Expenses Act. Because
the Travel Expenses Act did not authorize these expendi-
tures, it concluded (following the Comptroller General's opin-
ions), that there was no authority for the disputed provision,
and declared it nonnegotiable. That proves at most that the
Travel Expenses Act cannot be the source of authority for the
disputed provision, not that the provision is contrary to law.
However, the Union does not rely on the Travel Expenses
Act as a source of authority--quite to the contrary, it ex-
pressly argues that the Act is inapplicable, instead relying on
the collective bargaining laws as authorizing resulting expen-
ditures. The FLRA did not address this argument.
The argument that the collective bargaining laws them-
selves authorize the expenditure is one reason that the Comp-
troller General opinions relied on by the FLRA cannot re-
solve this case. Those opinions did not address a collective
bargaining situation and did not consider what effect, if any,
the collective bargaining laws would have in authorizing the
disputed provision. See 56 F.L.R.A. at 497 (discussing Comp-
troller General opinions). Reliance on these opinions of the
Comptroller General is flawed for yet another reason. To the
extent that the these opinions stand for the proposition that
" 'there is no authority' to reimburse [an] employee for addi-
tional personal travel expenses incurred when employee's
official duties caused him to make alternative flight reserva-
tions," 56 F.L.R.A. at 497 (quoting John W. Keys, 60 Comp.
Gen. 629)) (1981), they must be read narrowly. This pro-
nouncement would necessarily only apply to the agency be-
fore the Comptroller General at that time--the Department
of the Interior (in the Keys matter), not the Department of
Defense, as we have here. Moreover, any subsequent appro-
priations acts would, of course, render that opinion, expert
though it may have been at the time, obsolete. Therefore the
FLRA should have confronted the specific facts before it--a
collective bargaining agreement provision, with the DOD, in
the year 2000. It did not, either in its original order or the
order denying reconsideration.
In its motion for reconsideration, the Union expressly
argued that the expenditures required by the disputed provi-
sion "are authorized by the collective bargaining law, [5
U.S.C. s 7101, et seq.], and therefore by the law that general-
ly authorizes agency expenditures." (emphasis added). Yet
again, however, the Authority failed to address this argument.
Instead it relied on its position that the "provision clearly
requires the Agency to pay employees for lost travel ex-
penses," and noted that in the original decision it "applied
Comptroller General decisions which have interpreted the
Federal Travel Regulations to hold that agencies have 'no
authority' to reimburse employees for the kind of purely
personal travel expenses that are set forth by the terms of
the provision." 56 F.L.R.A. at 808 (emphasis added). The
FLRA was only "appl[ying]" a rule that under the Travel
Expenses Act and corresponding regulations, there is no
authority to reimburse personal travel expenses or expenses
that arise from canceled leave, and that rule does not dispose
of the Union's argument that the collective bargaining laws
and laws that generally authorize agency expenditures pro-
vide an independent source of authority. Instead, the FLRA
acknowledges the Union's "further argu[ment] that 'the col-
lective bargaining law' authorizes the Agency to negotiate
over the provision" only to respond that "[b]ecause there is no
duty to bargain over a provision that is contrary to law, we
reject the Union's argument." Id. The FLRA cannot now
argue that its decision was based on the general proposition
that expenditures must be authorized, because after reaching
the conclusion that there is no duty to bargain over a provi-
sion that is contrary to law, the Authority clearly states in a
footnote: "In light of this result, it is unnecessary for the
Authority to address the Union's additional arguments." Id.
at 808 n.6. These unaddressed "additional arguments" in-
cluded the Union's position that the collective bargaining laws
themselves permitted the use of general agency appropria-
tions to meet the obligations of bargaining. See id. at 807-08.
Despite its protestations to the contrary, the Authority only
considered whether the disputed provision was prohibited by
the Travel Expenses Act. Because the FLRA's application of
the Travel Expenses Act was erroneous we must grant the
petition for review.
III. Conclusion
On remand, the Authority should consider whether the
expenditures required by the disputed provision are "autho-
rized by the collective bargaining law," 5 U.S.C. s 7101, et
seq., or are specifically authorized as an "appropriate arrange-
ment[ ] for employees adversely affected by the exercise of
[agency management] authority" in canceling leave and "as-
sign[ing] work," 5 U.S.C. ss 7106(a)(2)(B), (b)(3), as argued
by the Union. That question is not properly before this
Court because the FLRA based its decision solely on a
misinterpretation of the Travel Expenses Act, and we decline
to address it. Similarly, whether the Union failed to, or even
needed to cite a general agency appropriations bill in the
FLRA proceedings is also not before us. The only issue
confronting this Court is the validity of the FLRA's deci-
sion--that the Travel Expenses Act prohibits the disputed
provision. Because it does not, we grant the petition for
review, vacate the decision and order below, and remand for
proceedings consistent with this opinion.