United States Department of the Air Force , Luke Air Force Base , Arizona v. Federal Labor Relations Authority

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued March 19, 2012 Decided June 1, 2012
No. 11-1281
UNITED STATES DEPARTMENT OF THE AIR FORCE , LUKE AIR
FORCE BASE , ARIZONA ,
PETITIONER
v.
FEDERAL LABOR RELATIONS AUTHORITY,
RESPONDENT
AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, LOCAL
1547,
I NTERVENOR
On Petition for Review of a Final Decision of the
Federal Labor Relations Authority
Robert D. Kamenshine, Attorney, U.S. Department of
Justice, argued the cause for petitioner. With him on the
briefs were Tony West, Assistant Attorney General, and
Thomas M. Bondy.
David Shewchuk, Deputy Solicitor, Federal Labor
Relations Authority, argued the cause for respondent. On the
brief was Rosa M. Koppel, Solicitor.

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David A. Borer and Judith Galat were on the brief for
intervenor American Federation of Government Employees,
Local 1547, in support of respondent.
Before: SENTELLE , Chief Judge, BROWN and GRIFFITH,
Circuit Judges.
Opinion for the Court filed by Circuit Judge BROWN.
BROWN, Circuit Judge: In 2006, the United States
Department of the Air Force announced it would conduct a
reduction-in-force (“RIF”) at Luke Air Force Base in Arizona.
In response, the union representing employees at the Base—
the American Federation of Government Employees, Local
1547 (the “Union”)—made several proposals about how the
RIF should be conducted and asked the Air Force to enter into
negotiations. The Air Force claimed it had no duty to
negotiate over three of the Union’s proposals, prompting the
Union to appeal to the Federal Labor Relations Authority.
The Authority determined the Air Force had an obligation to
negotiate over two of the three disputed proposals. See Am.
Fed’n of Gov’t Emp., Local 1547 v. U.S. Dep’t of the Air
Force, Luke Air Force Base, 65 F.L.R.A. 911, 917 (2011)
(“Luke Air Force Base”).
The Air Force now petitions for review of the Authority’s
unfavorable rulings.
I
Federal employees have the right “to engage in collective
bargaining with respect to conditions of employment,” 5
U.S.C. § 7102(2), but that right only extends so far. Federal
agencies have no duty to negotiate over a proposal that is
“inconsistent with any Federal law or any Government-wide

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rule or regulation.” Id. § 7117(a)(1). They also have no duty
to negotiate over a proposal that interferes with their authority
“to hire, assign, direct, layoff, [or] retain employees,” id. §
7106(a)(2)(A), unless the proposal concerns “appropriate
arrangements for employees adversely affected by the
exercise” of that management authority, id. § 7106(b)(3).
The two proposals at issue here—Proposals 1 and 2—
related to the RIF’s effect on veterans recruitment
appointments (“VRAs”). Rooted in the Federal policy “to
promote the maximum of employment and job advancement
opportunities within the Federal Government for qualified
covered veterans,” 38 U.S.C. § 4214(a)(1), VRAs are
“excepted appointments, made without competition, to
positions [at Federal agencies] otherwise in the competitive
service.” 5 C.F.R. § 307.103. These excepted appointments
are not permanent; “[u]pon satisfactory completion of 2 years
of substantially continuous service, [an] incumbent’s VRA
must be converted to a career or career conditional
appointment.” Id.
The Air Force’s planned RIF only eliminated competitive
service positions, which meant VRA appointees who had not
been converted to competitive service employees would not
have been affected. Although the Union represented both
VRA appointees and competitive service employees, it did
not want to insulate the VRA appointees from the RIF
because, in many cases, the appointees had accrued less
service time than competitive service employees in
comparable positions. To address that issue, the Union
offered Proposal 1: if the Air Force determined a competitive
service employee would be displaced by the RIF, and a VRA
appointee with less seniority occupied a similar position, the
Air Force should convert that VRA appointee to a term
appointee whose term expired before the RIF took effect.

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Luke Air Force Base, 65 F.L.R.A. at 911. And to address its
related concern that the Air Force would fill “vacant positions
with excepted service VRA employees” before the RIF was
completed, the Union offered Proposal 2: the Air Force
should only fill a new position with a VRA appointee if the
position would not be affected by the ongoing RIF. Id. at
914.
The Air Force claimed it had no obligation to negotiate
over either Proposal because each interfered with its
management authority. Id. at 912, 914. It further claimed it
had no obligation to negotiate over Proposal 1 because the
Proposal conflicted with various federal regulations relating
to RIFs and term employment. Id. at 912. The Authority
disagreed on all counts. It found Proposal 1 did not
contravene the RIF and term-employment regulations and did
not infringe on the Air Force’s authority to assign or layoff
employees. Id. at 912–14. And though it was willing to
“assum[e]” that Proposal 2 interfered with the Air Force’s
right to hire employees, the Authority found the Proposal
negotiable under 5 U.S.C. § 7106(b)(3) because it concerned
“appropriate arrangements for employees adversely affected”
by the Air Force’s exercise of its hiring authority. Id. at 914.
II
In its petition, the Air Force contends, for the first time,
that it had no duty to negotiate over Proposals 1 and 2 because
they conflicted with federal statutes and regulations governing
VRAs. It also argues the Authority erred when it determined
that Proposals 1 and 2 did not improperly infringe on
management authority. We find the first claim waived and
the second insufficient to overcome our deferential standard
of review. See Nat’l Fed’n of Fed. Emps. v. FLRA, 745 F.2d
705, 707–08 (D.C. Cir. 1984) (holding an Authority ruling

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may only be set aside “if arbitrary, capricious, an abuse of
discretion, or otherwise not in accordance with law”).
A
The Air Force identifies two alleged conflicts between
the Proposals and the laws creating the VRA program. It
claims Proposal 1 conflicted with 5 C.F.R. § 307.103 because
it required the conversion of VRA appointees to career
appointees before “completion of 2 years of substantially
continuous service.” And it claims Proposal 2 conflicted with
38 U.S.C. § 4214(a)(1) because its restriction on hiring VRA
appointees did not “promote the maximum of employment
and job advancement opportunities within the Federal
Government for qualified covered veterans.”
The Air Force concedes it did not present either of these
objections to the Authority. Petitioner’s Br. 13, 23.
Accordingly, we may only consider them if the Air Force’s
failure to raise them before the Authority “is excused because
of extraordinary circumstances.” 5 U.S.C. § 7123(c).
Our precedents demonstrate that “extraordinary
circumstances” truly are extraordinary. With certain
inapplicable exceptions, we have only found they exist when
the newly raised arguments implicate constitutional issues
like “separation of powers,” U.S. Dep’t of the Air Force v.
FLRA, 648 F.3d 841, 845 (D.C. Cir. 2011), or “sovereign
immunity,” U.S. Dep’t of the Army v. FLRA, 56 F.3d 273, 275
(D.C. Cir. 1995). And we have consistently found they do not
exist when, as here, the new argument is based on statutory
inconsistency alone. See U.S. Dep’t of the Air Force, 648
F.3d at 845; U.S. Dep’t of Air Force v. FLRA, 949 F.2d 1169,
1174–75 (D.C. Cir. 1991).

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The Air Force asserts that this is not a typical case of
statutory inconsistency because its new objections protect the
“employment rights under the VRA program of third-party
veterans who were not participants in the proceedings before
the [Authority].” Petitioner’s Br. 24. It submits this Court
has never held that a “waiver by a government agency
deprives the Court of jurisdiction to consider . . . an
abrogation of third-party statutory rights.” Petitioner’s Reply
Br. 8.
That distinction is not dispositive here. The
“extraordinary circumstances” requirement “was designed to
ensure that the Authority’s expertise be used to dispose of all
arguments relating to cases within its jurisdiction,” and an
“agency’s legal strategy or, arguably, deficient lawyering by
agency counsel cannot provide a waiver from this clear
congressional directive.” U.S. Dep’t of Housing & Urban
Dev. v. FLRA, 964 F.2d 1, 5 (D.C. Cir. 1992). Moreover,
strict enforcement of the waiver statute promotes “agency
autonomy and judicial efficiency.” U.S. Dep’t of the Air
Force, 648 F.3d at 846; see also Marine Mammal
Conservancy, Inc. v. Dep’t of Agriculture, 134 F.3d 409, 414
(D.C. Cir. 1998) (observing that the policies underlying
similar waiver provisions include “giving agencies the
opportunity to correct their own errors, . . . compiling a record
adequate for judicial review, [and] promoting judicial
efficiency”). It may be tempting to ignore these abstract
principles out of concern for the rights of our veterans, but we
cannot selectively enforce the waiver statute based on whose
rights are at stake. Nor can we simply decline to enforce the
waiver statute whenever third-party rights are implicated, for
doing so would make “extraordinary circumstances” quite
ordinary. We therefore find the Air Force’s claims of conflict
waived.

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B
The Air Force’s alternative argument is that the Authority
acted arbitrarily when it found the Proposals did not interfere
with management authority. That claim falls short because
“we can discern a reasoned path from the facts and
considerations before the [agency] to the decision it reached.”
Neighborhood TV Co., Inc. v. FCC, 742 F.2d 629, 639 (D.C.
Cir. 1984).
The Air Force objects to the Authority’s determination
that Proposal 1 did not interfere with its right to “layoff”
employees. The Authority has explained that “management’s
right to layoff employees includes the right to conduct a RIF
and to exercise its discretion in determining which positions
will be abolished and retained in a RIF.” Nat’l Treasury
Emps. Union v. U.S. Dep’t of Treasury, 60 FLRA 219, 222
(Sept. 3, 2004) (emphasis added). Here, the Authority
reasonably found that Proposal 1 did not restrict the Air
Force’s right to conduct a RIF, nor limit the Air Force’s
discretion in deciding which positions to cut, because the
Proposal only took effect after the Air Force had decided
which positions it wished to eliminate. See Luke Air Force
Base, 65 F.L.R.A. at 913–14.
In the Air Force’s telling, Proposal 1 was no different
than an earlier Union proposal the Authority found non-
negotiable. See Am. Fed’n of Gov’t Emps., Local 1547 v.
Luke Air Force Base, 64 F.L.R.A. 813 (May 27, 2010). That
is not so. The Union’s earlier proposal barred the Air Force
from conducting a RIF until all VRA appointees had accrued
two years of service and had been converted to competitive
service employees. See id. at 816. That proposal plainly
interfered with the Air Force’s right “to conduct a RIF” by
dictating when the Air Force could begin implementing its

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RIF plan. Nat’l Treasury Emps. Union v. United States Dep’t
of Treasury, 60 FLRA at 222. Proposal 1 had no such effect.1
With regard to Proposal 2, the Authority determined that
even if the Proposal interfered with the Air Force’s right to
hire employees, the Air Force nonetheless had a duty to
negotiate because the Proposal concerned “appropriate
arrangements for employees adversely affected” by the Air
Force’s exercise of that right. 5 U.S.C. § 7106(b)(3). The
Authority arrived at that conclusion by applying a two-part
test, under which a proposal concerns “appropriate
arrangements” if it was “intended as an arrangement,” and
was “appropriate because it d[id] not excessively interfere
with the exercise of management’s rights.” Luke Air Force
Base, 65 F.L.R.A. at 915 (emphasis added). The Authority
found Proposal 2 satisfied the “arrangement” requirement
because the RIF would have had “a severe, negative impact”
on terminated employees, and the Proposal was sufficiently
tailored “because it benefit[ted] employees who could be
affected by the RIF.” Id. And the Authority found the
Proposal satisfied the “appropriateness” requirement because
the benefits to employees outweighed the burden on the Air
Force’s hiring authority. See id.
The Air Force only challenges the Authority’s
appropriateness finding. It argues that when the Authority
weighed the benefits to employees against the burden on
management, it failed to account for “the vital and
independent statutory interest in preserving hiring . . . [of]
1 The Air Force also argues Proposal 1 was non-negotiable because
the Proposal interfered with its right to “retain . . . employees,” but
the Air Force waived that argument by failing to present it to the
Authority. See Luke Air Force Base, 65 F.L.R.A. at 912 (listing
Air Force’s objections to Proposal 1).

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veterans.” Petitioner’s Br. 31. While it is true the Authority
did not explicitly discuss the interests of veterans in its
appropriateness analysis, its decision explained why the RIF’s
impact on veterans might not be that severe. The Authority
observed that the Proposal’s “hiring limitation only applie[d]
to RIF-affected positions”; that the Air Force could still “fill
vacancies during the RIF from other sources,” including
veterans not on VRAs; and that the “hiring restriction [wa]s
only effective until the termination of the RIF,” meaning the
Air Force could always cut the RIF short if it felt that the
effect on veterans was too dramatic. Luke Air Force Base, 65
F.L.R.A. at 915. Taken together, these justifications for the
appropriateness finding adequately addressed the Air Force’s
concerns about veterans—concerns, it is worth noting, that the
Air Force never raised explicitly in its submissions to the
Authority.
III
Because the Air Force’s objections to the Authority’s
ruling are either waived or unavailing, the petition for review
is
Denied.

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