US Dept. of the Air Force v. Federal Labor Relations Authority

The Air Force petitioned for review of the decision and order of the Federal Labor Relations Authority ("FLRA") that a union proposal for uniform cleaning was a negotiable condition of employment. Based on a recently discovered Conference Report, the Air Force contended that the expenditure under 5 U.S.C. 5901(a) of funds was not authorized for the provision of services related to uniforms and statutory silence did not leave it discretion to do so. At issue was whether the court lacked jurisdiction under 5 U.S.C. 7123(c) to entertain the Air Force's petition because the Air Force failed to present its new interpretation of the uniform statutes. The court held that the Air Force's belated discovery of a constructional appropriations bar was an extraordinary circumstance under section 7123(c) that permitted consideration of an argument not presented by 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 had approved and therefore, the court granted the petition for review. Accordingly, whether as a matter of the plain text of the two uniform statues, or the Air Force's permissible interpretation of any statutory ambiguity to which the FLRA must defer, the Air Force correctly maintained that the union's uniform cleaning proposal was non-negotiated because the statute the Department of Defense administered did not authorize such payments for appropriated funds.