United States Department of the Air Force , 4th Fighter Wing , Seymour Johnson Air… v. Federal Labor Relations Authority

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United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued April 12, 2011 Decided May 27, 2011
No. 10-1299
UNITED STATES DEPARTMENT OF THE AIR FORCE , 4TH
FIGHTER WING , SEYMOUR J OHNSON AIR FORCE BASE ,
PETITIONER
v.
FEDERAL LABOR RELATIONS AUTHORITY ,
RESPONDENT
On Petition for Review of an Order
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 William
Kanter, Attorney.
Joyce G. Friedman, Attorney, Federal Labor Relations
Authority, argued the cause for respondent. With her on the
brief was Rosa M. Koppel, Solicitor.

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Before: ROGERS , G RIFFITH and KAVANAUGH , Circuit
Judges.
Opinion for the Court by Circuit Judge ROGERS .
ROGERS , Circuit Judge: The Air Force petitions for review
of the decision and order of the Federal Labor Relations
Authority (“FLRA”) that a union proposal for uniform cleaning
is a negotiable condition of employment. Reversing its position
before the FLRA, the Air Force contends that the proposal is
non-negotiable because it would require the use of appropriated
funds for a purpose not authorized by law. Section 1593 of title
10 of the U.S. Code authorizes certain appropriated funds to be
used “for uniforms . . . or for allowance for uniforms,” whereby
the Air Force may either “pay an allowance” to employees
required by law “to wear a prescribed uniform” or, “[i]n lieu of
providing an allowance . . . [,] provide a uniform” to employees.
See also 5 U.S.C. § 5901(a). Based on a recently discovered
Conference Report, the Air Force contends that neither
alternative authorizes the expenditure of funds for the provision
of services related to uniforms and statutory silence does not
leave it discretion to do so. The FLRA, invoking the waiver
provision, 5 U.S.C. § 7123(c), contends the court lacks
jurisdiction to entertain the petition because the Air Force failed
to present its new interpretation of the uniform statutes below.
We hold that the Air Force’s belated discovery of a
constitutional appropriations bar, see U.S. CONST . art. I, § 9, cl.
7, is an “extraordinary circumstance[]” under section 7123(c)
that permits consideration of an argument not presented to the
FLRA. Were the exception not to apply, the FLRA’s order
would, in effect, permit the Air Force, by contract with the
Union, to authorize the expenditure of funds beyond what
Congress has approved. Having jurisdiction, we grant the
petition. Whether because the plain text of the uniform statutes

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does not authorize use of funds for cleaning uniforms, or
because the statutory silence creates ambiguity and the FLRA
must defer to the permissible interpretation of 10 U.S.C. § 1593
by the Department of Defense, which administers the statute, the
Air Force has no duty to bargain over uniform cleaning services.
I.
As of August 2007, the Air Force requires its Air Reserve
Technicians, who are citizen-employees required as a condition
of their employment to maintain membership in a military
reserve unit, to “wear the military uniform while performing
civilian duties.” Air Force Instruction 36-801 § 1.1.1.9 (Apr. 29,
1994) (incorporating change Aug. 6, 2007). The National
Association of Independent Labor, Local 7 (“the Union”),
challenged the “compelling need” for the uniform requirement,
see 5 U.S.C. § 7117; 5 C.F.R. § 2424.50, and alternatively
proposed as a subject for negotiation that the Air Force provide
uniform cleaning services.
The Air Force claimed it had no duty to bargain over
uniform maintenance because “[t]his matter is specifically
provided for by federal statute and therefore is not a condition
of employment under 5 U.S.C. [§] 7103(a)(14).” Decl. of
Negotiability 2 (Feb. 3, 2010). In its view, “5 U.S.C. § 5901
addresse[d] the payment of a uniform allowance for the
maintenance of the uniform.” Id. When the Union filed a
petition for a review of negotiability issues with the FLRA, see
5 C.F.R. § 2424.22, the Air Force responded to the same effect,
stating that the uniform maintenance proposal was non-
negotiable because under FLRA precedents uniform cleaning
expenses were expressly provided for in 10 U.S.C. § 1593 and
thus fell outside the duty to bargain. Alternatively, it argued that
the proposal was inconsistent with 10 U.S.C. § 1593, which
authorized the Air Force either to furnish a uniform or to

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provide a uniform allowance, but not to “pay a uniform
allowance [and] also to furnish uniforms in the form of cleaning
services to those employees who also receive a uniform
allowance.” Air Force Statement of Position 13–14 (Mar. 23,
2010). The Union responded by pointing to more recent FLRA
precedents as supporting the negotiability of the uniform
cleaning proposal.
The FLRA agreed with the Union, ruling the Air Force had
not established that the uniform statutes left it no discretion to
bargain where the uniform cleaning proposal would not require
it to exceed the dollar amount of the uniform allowance, and
further that the proposal was not inconsistent with the uniform
statutes because providing cleaning services was not the
equivalent of furnishing a uniform. See Nat’l Ass’n of Indep.
Labor Local 7, 64 F.L.R.A. 1194, 1199–1200 (2010). The Air
Force petitions for review.
II.
Under 5 U.S.C. § 7123(c), “[n]o 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 petition for
review by the Air Force presents a new interpretation of the
uniform statutes, 10 U.S.C. § 1593; 5 U.S.C. § 5901, based on
a belatedly discovered Conference Report that, in its view,
precludes payment for cleaning services. Unless the Air Force’s
petition falls within the “extraordinary circumstances” exception
to the waiver provision, then, the court must dismiss the petition
for lack of jurisdiction.
The court, recognizing its jurisdiction normally does not
extend to an “objection that has not been urged before the
Authority,” Am. Fed’n of State, Cnty. & Mun. Emps. Capital

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Area Council 26 v. FLRA, 395 F.3d 443, 451–52 (D.C. Cir.
2005) (citation and quotation marks omitted), has interpreted the
“extraordinary circumstances” exception narrowly. The
Supreme Court held that the “plain language [of section
7123(c)] evinces an intent that the FLRA shall pass upon issues
arising under [Title VII of the Civil Service Reform Act of 1978,
known as the Federal Service Labor-Management Relations Act,
5 U.S.C. § 7101 et seq.1], thereby bringing its expertise to bear
on the resolution of those issues.” EEOC v. FLRA, 476 U.S. 19,
23 (1986) (per curiam). In that case, the Court concluded it
lacked jurisdiction to decide the question of negotiability
because the principal arguments advanced by the EEOC against
negotiability were not presented to the FLRA, and there was no
extraordinary circumstance to excuse the omission. Id. at
23–24. 2 “[T]he Court so held despite the fact that, had EEOC’s
contentions been correct, the FLRA decision would have
undercut congressional policy.” U.S. Dep’t of Hous. & Urban
Dev. v. FLRA, 964 F.2d 1, 4 (D.C. Cir. 1992). Accordingly, this
court concluded that it is not enough that the FLRA’s order
would arguably circumvent this court’s precedent or even a
congressional preference with regard to a class of employees.
See id. at 3–4. Instead, in an exemplary circumstance, the court
has applied the “extraordinary circumstances” exception to
reach arguments not presented to the FLRA where they “simply
track the objections considered by the [FLRA]” in another case.
U.S. Dep’t of Interior Minerals Mgmt. Serv. v. FLRA, 969 F.2d
1158, 1161 (D.C. Cir. 1992). In other words, a failure to present
1 See Dep’t of Health & Human Servs. Family Support
Admin. v. FLRA, 920 F.2d 45, 47 (D.C. Cir. 1990).
2 The Court also noted that the EEOC’s failure to present its
objections to the Court of Appeals provided further justification for
dismissing the writ of certiorari as improvidently granted. See EEOC,
476 U.S. at 24.

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arguments to the FLRA was excused because the court enjoyed
the benefit of the FLRA’s expertise in addressing the same
arguments in another case and “a rehearing petition would have
been futile given that the Authority had just found an identical
proposal negotiable.” Id.
The Air Force suggests that FLRA precedent gave it “ample
reason” to conclude that presenting its new argument to the
FLRA would have been futile. Reply Br. 10. It points to
National Association of Government Employees, SEIU, AFL-
CIO, 26 F.L.R.A. 515, 526 (1987), where the FLRA, based on
an examination of the uniform statutes and Senate Report No.
83-1992 (1954), reprinted in 1954 U.S.C.C.A.N. 3816, 3826,
concluded that 5 U.S.C. chapter 59, subchapter I (where section
5901 is found) “deals comprehensively with the payment of a
uniform allowance by an agency for the maintenance of the
uniform which the agency requires employees to wear.” See
also Ass’n of Civilian Technicians, Wisconsin Chapter, 26
F.L.R.A. 682, 684 (1987). Subsequent FLRA decisions
addressing uniform maintenance proposals emphasized and
relied almost exclusively on the Senate Report in ruling that “the
legislative scheme encompassed both the purchase and upkeep
of the uniforms.” See, e.g., Nat’l Treasury Emps. Union, 46
F.L.R.A. 696, 776–77 (1992).
The difficulty with the Air Force’s futility argument is two-
fold. First, the legislative history objections now presented do
not “simply track the objections considered by the Authority” in
another case. U.S. Dep’t of Interior, 969 F.2d at 1161. Second,
the Air Force presumes that the FLRA, having relied on
legislative history in the past, would have resisted considering
legislative history not previously addressed in an opinion. The
futility exception does not reach that far. See Ga. State Chapter
Ass’n of Civilian Technicians v. FLRA, 184 F.3d 889, 892 (D.C.
Cir. 1999); cf. W & M Props. of Conn., Inc. v. NLRB, 514 F.3d

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1341, 1346 (D.C. Cir. 2008). Particularly in the instant case, by
the mid-1990s the FLRA had modified its approach to
determining the negotiability of proposals, “clarif[ying] . . . that
the comprehensiveness of a statutory scheme is not, in itself, a
sufficient basis to find a matter outside the duty to bargain” and
focusing instead on “whether the statute at issue provides the
Agency the discretion to agree to the proposal.” Nat’l Fed’n of
Fed. Emps., Local 1669, 55 F.L.R.A. 63, 67 (1999).
Consequently, the FLRA held the decisions upon which the Air
Force relies in making its futility argument to be “superseded
by, and inconsistent with,” the new methodology insofar as the
decisions “suggest that the comprehensive nature of [the
uniform statute]” – a conclusion previously supported by Senate
Report No. 83-1992, see, e.g., SEIU, 26 F.L.R.A. at 526 – “by
itself . . . foreclose[d] any bargaining on the subject of uniform
allowances.” Nat’l Fed’n of Fed. Emps., Local 1669, 55
F.L.R.A. at 67.
The belated discovery of a statutory provision, and
presumably no less legislative history, would normally be
insufficient to fall within the waiver exception. See U.S. Dep’t
of the Air Force, Griffiss Air Force Base v. FLRA, 949 F.2d
1169, 1175 (D.C. Cir. 1991); see also Marine Mammal
Conservancy, Inc. v. Dep’t of Agric., 134 F.3d 409, 414 (D.C.
Cir. 1998). Nonetheless, we conclude that the Air Force’s
petition presents an “extraordinary circumstance[]” under
section 7123(c) for another reason. The Air Force maintains, in
view of the belated discovery of the Conference Report, that the
uniform statutes it administers do not authorize use of
appropriated funds to clean uniforms. Its new interpretation thus
implicates the Constitution’s Appropriations Clause, which
provides that “No Money shall be drawn from the Treasury, but
in Consequence of Appropriations made by Law.” U.S. CONST .
art. I, § 9, cl. 7; see also 31 U.S.C. § 1301(a); Ass’n of Civilian
Technicians, Puerto Rico Army Chapter v. FLRA, 370 F.3d

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1214, 1217 (D.C. Cir. 2004) (“ACT II”). In Office of Personnel
Management v. Richmond, 496 U.S. 414 (1990), the Supreme
Court rejected an estoppel claim for payment of disability
benefits, holding that the Appropriations Clause dictated that
“judicial use of the equitable doctrine of estoppel cannot grant
respondent a money remedy that Congress has not authorized.”
Id. at 426. The Court pointed to the underlying separation of
powers concerns: “If agents of the Executive were able, by their
unauthorized oral or written statements to citizens, to obligate
the Treasury for the payment of funds, the control over public
funds that the Clause reposes in Congress in effect could be
transferred to the Executive.” Id. at 428; cf. Schism v. United
States, 316 F.3d 1259, 1274–75 (Fed. Cir. 2002) (en banc).
Similarly, in Department of the Army v. FLRA, 56 F.3d 273, 275
(D.C. Cir. 1995), this court declined to apply section 7123(c)’s
waiver provision where the petition was based on sovereign
immunity, reasoning that if section 7123(c) could bar a belated
claim “a federal official could effectively waive sovereign
immunity and confer jurisdiction upon the court without an
express authorization from the Congress.”
The Air Force’s petition presents the same concerns
identified in Richmond: were the “extraordinary circumstances”
exception not to apply, the FLRA’s order would, in effect,
permit the Air Force, by contract with the Union, to authorize
the expenditure of funds beyond what Congress has approved,
see 496 U.S. at 426, implicating separation of powers concerns,
see id. at 428. This follows because, contrary to the FLRA’s
response to the petition for review, either the plain text of the
uniform statutes dictates this result or the Air Force’s
interpretation of any statutory ambiguity is entitled to deference.
Cf. Gen. Servs. Admin. v. FLRA, 86 F.3d 1185, 1187 (D.C. Cir.
1996). Although this touches on the merits, doing so is
necessary in order to determine whether the Air Force’s
invocation of a constitutional appropriations bar presents a

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substantial objection to which the waiver exception should
apply. Otherwise the exception Congress provided for
“extraordinary circumstances” would sweep too broadly,
encompassing even frivolous Appropriations Clause challenges.
This is how the court has previously ensured itself of the merits
of a claim of “extraordinary circumstances.” See Dep’t of the
Army, 56 F.3d at 275. There is no issue of the FLRA’s
expertise. Rather, as the Air Force suggests, “[w]aiver is not a
constitutionally valid basis on which to compel the Air Force to
spend funds for a purpose unauthorized by Congress.” Reply
Br. 7 (capitalization omitted). Section 7123(c), rooted in
concerns of agency autonomy and judicial efficiency, cf.
Woodford v. Ngo, 548 U.S. 81, 89 (2006); NLRB v. Saint-
Gobain Abrasives, Inc., 426 F.3d 455, 458–59 (1st Cir. 2005),
cannot create that authorization. Because the Air Force’s
belated discovery of a constitutional appropriations bar is an
“extraordinary circumstance[]” under section 7123(c), the court
has jurisdiction to consider the Air Force’s petition, to which we
now turn.
III.
For purposes of identifying our standard of review, the
court has differentiated between the FLRA’s interpretations of
its organic statute and interpretations of a non-organic statute,
where both are at issue. See, e.g., Ass’n of Civilian Technicians,
Tony Kempenich Mem’l Chapter 21 v. FLRA, 269 F.3d 1119,
1121 (D.C. Cir. 2001). The court has held that it “owe[s] no
deference to the FLRA’s statutory interpretation where it has
endeavored to ‘reconcile its organic statute . . . with a[nother]
statute . . . not within its area of expertise.’” U.S. Dep’t of
Veterans Affairs v. FLRA, 9 F.3d 123, 126 (D.C. Cir. 1993)
(second alteration in original) (citation omitted). Here, the Air
Force does not challenge the FLRA’s interpretation of its
organic statute and thus presents no occasion to afford the FLRA

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deference; the Air Force does not contest the FLRA’s
methodology of determining when a bargaining proposal is
“specifically provided for by Federal statute,” 5 U.S.C. §
7103(a)(14), viz., “whether the statute at issue provides the
Agency the discretion to agree to the proposal,” Nat’l Fed’n of
Fed. Emps., Local 1669, 55 F.L.R.A. at 67. Instead, the Air
Force challenges the FLRA’s failure to defer to its interpretation
of 10 U.S.C. § 1593 and 5 U.S.C. § 5901, which are not
administered by the FLRA. The court reviews de novo the
FLRA’s interpretation of a statute it is not charged with
administering. See, e.g., Tony Kempenich Mem’l, 269 F.3d at
1121.
As noted, 10 U.S.C. § 1593 and 5 U.S.C. § 5901 relate to
the provision of uniforms in that they authorize the expenditure
of appropriated funds for either a uniform or “in lieu [there]of”
a uniform allowance.3 Section 1593 is specific to the Armed
3 Section 1593 provides, in relevant part:
(a) Allowance authorized. –
(1) The Secretary of Defense may pay an allowance
to each civilian employee of the Department of
Defense who is required by law or regulation to wear
a prescribed uniform in the performance of official
duties.
(2) In lieu of providing an allowance under
paragraph (1), the Secretary may provide a uniform
to a civilian employee . . . .
* * *
(d) Use of appropriated funds for allowance. – Amounts
appropriated annually to the Department of Defense for the
pay of civilian employees may be used for uniforms, or for
allowance for uniforms, as authorized by this section and

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Forces; section 5901 applies generally to federal government
organizations and employees. Before the FLRA, the Air Force
agreed with the FLRA that uniform cleaning expenses fell
within the scope of these statutes, and therefore the FLRA
decision addressed only whether the statutes leave any discretion
to the Air Force to bargain. The FLRA ultimately concluded,
because the Union proposal did not require an annual
expenditure in excess of the $400 maximum allowance and was
not otherwise inconsistent with the uniform statutes, that the Air
Force had discretion to bargain over the amount of uniform
cleaning expenses. See Nat’l Ass’n of Indep. Labor Local 7, 64
F.L.R.A. at 1199–1200. The Air Force now relies on a recently
discovered Conference Report in contending that the uniform
statutes preclude expenditures for uniform cleaning services.
We apply the two-step analysis of Chevron, U.S.A., Inc. v.
NRDC, 467 U.S. 837, 842–43 (1984).
The plain text of the two uniform statutes addresses
payment for a uniform or payment “[i]n lieu of,” 10 U.S.C.
§ 1593(a)(2), provision of a uniform. The most natural reading
section 5901 of title 5.
10 U.S.C. § 1593(a), (d). Section 5901 provides, in relevant part:
(a) There is authorized to be appropriated annually . . . on a
showing of necessity or desirability, such sums as may be
necessary to carry out this subchapter. The head of the
agency concerned, out of funds made available by the
appropriation, shall –
(1) furnish to each of these employees a uniform at
a cost not to exceed $400 a year . . . ; or
(2) pay to each of these employees an allowance for
a uniform not to exceed $400 a year . . . .
5 U.S.C. § 5901(a).

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of the text allows the expenditure of up to $400 per employee
per year for uniforms, and suggests that Congress cares not
whether the employer or employee is the ultimate purchaser.
See FCC v. AT&T, Inc., 131 S. Ct. 1177, 1182 (2011). Neither
the word “provide,” 10 U.S.C. 1593(a)(2), nor “furnish,” 5
U.S.C. § 5901(a)(1), normally brings to mind cleaning services.
That Congress did not contemplate uniform maintenance to fall
within the ambit of the statutory authorization appears clear
from the use of the phrase “[i]n lieu of,” contrasting a uniform
allowance and the provision of a uniform. 10 U.S.C.
§ 1593(a)(1) & (2). The legislative history and other traditional
tools of statutory construction reinforce this conclusion. See
Chevron, 467 U.S. at 843 n.9; Shays v. FEC, 414 F.3d 76, 105
(D.C. Cir. 2005). The original Federal Employees Uniform
Allowance Act of 1954, the uncodified precursor to section
5901, stated that funds may be used either to furnish a uniform
or to pay “an allowance for defraying the expenses of
acquisition of such uniform.” Pub. L. No. 83-763, § 402, 68
Stat. 1105, 1114 (emphasis added). Review of the legislative
history further reveals that initial versions of the House and
Senate bills provided for uniform maintenance. See S. REP . NO .
83-1992 (accompanying H.R. 2263 and reprinting comments on
S. 2265 and S. 3507), reprinted in 1954 U.S.C.C.A.N. at 3826
(summarizing H.R. 2263, substantially the same as S. 2665 and
S. 3681, as authorizing disbursement “for purchase and upkeep
of uniforms”). The Conference Report upon which the Air
Force relies states, however, that this provision was deleted:
“The conference substitute adopts the language of the Senate
amendment [to Title IV of H.R. 2263], except . . . for deletion of
a provision therein for use of uniform allowances for upkeep of
uniforms.” CONF . REP . NO . 83-2665 (1954), reprinted in 1954
U.S.C.C.A.N. 3861, 3875.

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Although the Conference Report does not explain why the
provision on upkeep of uniforms was deleted,4 the FLRA owes
deference to the Department of Defense’s reasonable
interpretation of the second uniform statute, 10 U.S.C. § 1593,
because the Department administers that statute, see Gen. Servs.
Admin., 86 F.3d at 1187, and would exceed its authority by
ruling that, in the absence of a provision specifically addressing
the maintenance of uniforms, the Air Force has discretion to
negotiate with the Union on uniform cleaning services, see Nat’l
Fed’n of Fed. Emps., Local 1669, 55 F.L.R.A. at 67. Here the
Air Force’s interpretation of 10 U.S.C. § 1593 (which is, of
course, the same as the interpretation of the Department of
Defense), assuming there is ambiguity from statutory silence, is
a permissible one that this court “should not disturb” because “it
appears from the statute [and] its legislative history that the
4 Agency comments reprinted in Senate Report No. 83-1992
indicate that the cost of providing and maintaining uniforms, estimated
to be $20 million, id., reprinted in 1954 U.S.C.C.A.N. at 3818, was a
concern. See Letter from John W. Macy, Jr., For and in Absence of
Philip Young, Chairman, U.S. Civil Serv. Comm’n, to Senator Frank
Carlson, Chairman, Comm. on Post Office & Civil Serv. (Feb. 19,
1954) (commenting that S. 2265 provides “allowance for the purchase
and maintenance of uniforms,” but noting that “the annual cost of this
bill would be substantial” and, given “the President’s policy of
curtailing expenditures wherever possible, . . . not recommend[ing]
such legislation at this time”); Letter from True D. Morse, Under
Sec’y, Dep’t of Agric., to Chairman Carlson (Mar. 2, 1954)
(commenting that S. 2665 provides allowance for “acquisition and
upkeep of prescribed uniforms,” but noting costs and not
recommending enactment at this time); Letter from Edmund F.
Mansure, Adm’r, Gen. Servs. Admin., to Chairman Carlson (Mar. 5,
1954) (describing GSA’s existing “authority to purchase, repair, and
clean uniforms” and suggesting payment of a uniform allowance be
made optional in S. 2665), reprinted in 1954 U.S.C.C.A.N. 3829,
3836, 3840, 3850.

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accommodation is . . . one that Congress would have
sanctioned.” Chevron, 467 U.S. at 845 (citation and quotation
marks omitted). There consequently is no need to address the
FLRA’s bald assertion that the “necessary expense” doctrine
under decisions of the Comptroller General might allow for such
expenditures. See Resp. Br. 18, 20. See generally ACT II, 370
F.3d at 1218–19, 1221–22; 1 Office of the Gen. Counsel, U.S.
Gen. Accounting Office, Principles of Federal Appropriations
Law 4-19 (3d ed. 2004).
The parties agree that “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.” Ass’n of Civilian Technicians, Puerto Rico
Army Chapter v. FLRA, 534 F.3d 772, 776 (D.C. Cir. 2008)
(“ACT III”); see also Ass’n of Civilian Technicians, Puerto Rico
Army Chapter v. FLRA, 269 F.3d 1112, 1116–18 (D.C. Cir.
2001) (“ACT I”). The FLRA also recognizes that 31 U.S.C.
§ 1301(a) limits the application of appropriations “only to the
objects for which the appropriations were made except as
otherwise provided by law.” Accordingly, whether as a matter
of the plain text of the two uniform statutes, or the Air Force’s
permissible interpretation of any statutory ambiguity to which
the FLRA must defer, the Air Force correctly maintains that the
Union’s uniform cleaning proposal is non-negotiable because
the statute the Department of Defense administers does not
authorize such payment from appropriated funds, and we grant
the petition for review.

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