UNITED STATES COURT OF APPEALS FOR THE D.C. CIRCUIT


GA ST CHPTR ASSN

v.

FLRA


98-1452a

D.C. Cir. 1999


*	*	*


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,


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




__________

n 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 




__________

n 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.


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


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


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


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


The petition for review is denied.