During contract negotiations with the Equal Employment
Opportunity Commission (EEOC), respondent American Federation of
Government Employees (AFGE) submitted a proposal that would require
the EEOC "to comply with OMB Circular A-76 and other applicable
laws and regulations concerning contracting out" by federal
agencies. The EEOC refused to bargain over the proposal on the
ground that it was nonnegotiable under Title VII of the Civil
Service Reform Act of 1978 (Act). On AFGE's petition for review,
respondent Federal Labor Relations Authority (FLRA) rejected the
EEOC's contentions that (1) because AFGE's proposed contract
provision concerned contracting out, the proposal was inconsistent
with the Act's management rights clause, which protects an agency's
authority, "in accordance with applicable laws," to make
determinations as to contracting out, and (2) the Circular itself
forbade negotiation over the proposal. The Court of Appeals
affirmed.
Held: The writ of certiorari previously granted by this
Court is dismissed as improvidently granted. The EEOC did not
assert before either the FLRA or the Court of Appeals its
contentions here that (1) the Circular is not an "applicable la[w]"
within the meaning of the Act's management rights clause, and
therefore AFGE's proposal, by requiring compliance with the
Circular, would intrude on management's reserved rights, and (2)
any alleged violation of the Circular would not be grievable absent
AFGE's proposal, because the Circular is not a "law, rule, or
regulation" within the meaning of the Act's definition of
"grievance." Nor had the EEOC presented to the FLRA the argument
that the Circular is a "Government-wide rule or regulation" for
purposes of the Act's provision that excludes such rules or
regulations from the scope of the duty to bargain. The Act provides
that an objection that has not been urged before the FLRA shall not
be considered on judicial review unless the failure to urge the
objection is excused because of extraordinary circumstances. Such
statutory bar is not "waived" simply because the FLRA fails to
invoke it. Since the EEOC failed to excuse its failure to raise
before the FLRA its principal objections to AFGE's proposal, this
Court will not consider them. Moreover, even if the EEOC's failure
to raise its
Page 476 U. S. 20
"grievability" contention before the FLRA were to be excused on
the ground that the FLRA,
sua sponte, had injected the
grievability issue into the proceedings, it did not excuse the
EEOC's failure to raise its claim in the Court of Appeals. This
Court's normal practice, applicable here, is to refrain from
addressing issues not raised in the Court of Appeals.
Certiorari dismissed. Reported below: 240 U.S.App.D.C. 218, 744
F.2d 842.
PER CURIAM.
We granted certiorari, 472 U.S. 1026 (1985), to consider the
question whether a union proposal that would require a federal
agency to comply with OMB Circular A-76 (1983) Performance of
Commercial Activities, which prescribes guidelines for contracting
out by federal agencies, is negotiable under Title VII of the Civil
Service Reform Act of 1978, 5 U.S.C. § 7101
et seq.
In the course of contract negotiations with petitioner, the
Equal Employment Opportunity Commission (EEOC), respondent American
Federation of Government Employees (AFGE) submitted the following
proposal:
Page 476 U. S. 21
"The EMPLOYER agrees to comply with OMB Circular A-76 and other
applicable laws and regulations concerning contracting out."
The EEOC took the position that this proposal was nonnegotiable
under the Civil Service Reform Act (Act), and declined to bargain
over it. AFGE then petitioned for review by respondent Federal
Labor Relations Authority (FLRA), which is empowered by the Act to
"resolv[e] issues relating to the duty to bargain" in the federal
sector. 5 U.S.C. § 7105(a)(2)(E).
Before the FLRA, the EEOC's principal contention was that,
because the proposal concerned contracting out it was inconsistent
with the Act's management rights clause, which, in pertinent part,
provides that
"nothing in [Title VII] shall affect the authority of any
management official of any agency -- . . . in accordance with
applicable laws -- . . . to make determinations with respect to
contracting out."
5 U.S.C. § 7106(a)(2)(B) (emphasis added). The FLRA rejected
this view, ruling that the proposal would not invade management's
reserved rights, since it would merely
"require management to exercise its right to make contracting
out determinations in accordance with whatever applicable laws and
regulations exist at the time of such action."
10 F.L.R.A. 3 (1982). In the course of rejecting the EEOC's
additional argument that the Circular itself forbade negotiation
over the proposal, the FLRA went on to explain that, even in the
absence of AFGE's proposed contract provision,
"disputes concerning conditions of employment arising in
connection with the application of the Circular would be covered by
the negotiated grievance procedure."
Id. at 5.
A divided panel of the Court of Appeals for the District of
Columbia Circuit affirmed the FLRA's decision. 240 U.S.App.D.C.
218, 744 F.2d 842 (1984). The Court of Appeals found the EEOC's
claim that any proposal regarding contracting out was barred by the
management rights clause "untenable in light of the plain text of
the clause."
Page 476 U. S. 22
Id. at 224, 744 F.2d at 848. Since management's
reserved right was conditioned upon compliance with "applicable
laws," and since the proposed contract language "essentially echoes
the statutory requirement that contracting-out determinations be
made in accordance with applicable laws," the proposal would not
affect the EEOC's reserved authority to make contracting-out
decisions.
Ibid. The Court of Appeals also agreed with the
FLRA that, under 5 U.S.C. § 7103(a)(9)(C)(ii), which defines
"grievance" to include "any claimed violation, misinterpretation,
or misapplication of any law, rule, or regulation affecting
conditions of employment," an alleged violation of the Circular
would be grievable even in the absence of AFGE's proposal. 240
U.S.App.D.C. at 227, 744 F.2d at 850. The dissenting judge believed
that the proposal was intended to, and would, place additional
constraints on the EEOC's reserved rights with respect to
contracting out.
Id. at 228, 744 F.2d at 852 (MacKinnon,
J., dissenting).
In this Court, the EEOC raises three principal arguments in
support of its claim that AFGE's proposal is nonnegotiable. First,
although it did not so argue to the FLRA or the Court of Appeals,
the EEOC now contends that Circular A-76 is not an "applicable
la[w]" within the meaning of the management rights clause, and
therefore that AFGE's proposal, by requiring compliance with the
Circular, would intrude on management's reserved rights. Second,
and again for the first time in this Court, the EEOC asserts that
an alleged violation of the Circular would not be grievable absent
AFGE's proposal, because the Circular is not a "law, rule, or
regulation" within the meaning of § 7103(a)(9)'s definition of
"grievance." Third, the EEOC suggests that the Circular
is
a "Government-wide rule or regulation" for purposes of 5 U.S.C. §
7117(a)(1), and argues that § 7117(a)(1) excludes such rules or
regulations from the scope of the duty to bargain. This argument,
too, was never presented to the FLRA.
Page 476 U. S. 23
Whatever their merit, we have concluded that these contentions,
which are the linchpins of the EEOC's brief in this Court, are not
properly before us. The Act expressly provides that, when an
aggrieved party seeks judicial review of a final order of the
FLRA,
"[n]o objection that has not been urged before the Authority, or
its designee, shall be considered by the court, unless the failure
or neglect to urge the objection is excused because of
extraordinary circumstances."
5 U.S.C. § 7123(c). This language is virtually identical to that
found in § 10(e) of the National Labor Relations Act, 29 U.S.C. §
160(e), which provides that
"[n]o objection that has not been urged before the [National
Labor Relations] Board . . . shall be considered by the court,
unless the failure or neglect to urge such objection shall be
excused because of extraordinary circumstances."
This Court has interpreted § 10(e) to mean that a Court of
Appeals is "without jurisdiction to consider" an issue not raised
before the Board if the failure to do so is not excused by
extraordinary circumstances.
Woelke & Romero Framing, Inc.
v. NLRB, 456 U. S. 645,
456 U. S.
665-666 (1982).
See also Detroit Edison Co. v.
NLRB, 440 U. S. 301,
440 U. S. 311,
n. 10 (1979);
May Department Stores Co. v. NLRB,
326 U. S. 376,
326 U. S. 386,
n. 5 (1945). The Court of Appeals for the District of Columbia
Circuit has similarly held that, under § 7123(c), review of "issues
that an agency never placed before the Authority" is barred absent
extraordinary circumstances.
Department of Treasury v.
FLRA, 227 U.S.App.D.C. 377, 382, 707 F.2d 574, 579 (1983).
See also FLRA v. Social Security Administration, 243
U.S.App.D.C. 338, 342, 753 F.2d 156, 160-161 (1985). We agree with
this interpretation of § 7123(c), which we think is not "waived"
simply because the FLRA fails to invoke it. Section 7123(c) speaks
to courts, not parties, and its plain language evinces an intent
that the FLRA shall pass upon issues arising under the Act, thereby
bringing its expertise to bear on the resolution of those issues.
We need not decide whether an express waiver by the FLRA would be
relevant
Page 476 U. S. 24
in determining whether there are "extraordinary circumstances"
excusing a party's failure to raise an issue before that agency,
for there is no such waiver here. We do, however, reject JUSTICE
STEVENS' theory of implied waiver, which, it should be noted, is
not offered as an interpretation of the exception for
"extraordinary circumstances." We think that, if Congress had meant
there to be two exceptions to the bar raised by § 7123(c), instead
of one, it would have said so.
Since the EEOC has failed to excuse its failure to raise before
the FLRA what now appear to be its principal objections to AFGE's
proposal, we decline to consider them. Conceivably, the EEOC's
failure to apprise the FLRA of its claim that the Circular is not a
"law, rule, or regulation" for purposes of the Act's definition of
grievance is attributable to what appears to have been the FLRA's
sua sponte injection of the grievability issue into these
proceedings in rendering its decision. But, at most, that might
excuse the EEOC's failure to press this claim before the FLRA; it
does not excuse the EEOC's failure to raise it at any point in the
Court of Appeals. This latter failure was "brought to our attention
. . . in respondent's brief in opposition to the petition for
certiorari,"
Oklahoma City v. Tuttle, 471 U.
S. 808, 816 (1985), as was the EEOC's failure to raise
its claim that the Circular is not an "applicable la[w]."
See Brief for FLRA in Opposition 11, n. 8, 17, n. 17. Our
normal practice, from which we see no reason to depart on this
occasion, is to refrain from addressing issues not raised in the
Court of Appeals.
See, e.g., FTC v. Grolier, Inc.
462 U. S. 19,
462 U. S. 23, n.
6 (1983);
Rogers v. Lodge, 458 U.
S. 613,
458 U. S. 628,
n. 10 (1982). Under these circumstances, several central issues on
which resolution of the question presented may well turn cannot be
reached or resolved. Accordingly, we dismiss the writ of certiorari
as improvidently granted.
It is so ordered.
Page 476 U. S. 25
JUSTICE WHITE, dissenting.
Because I agree with JUSTICE STEVENS that the Court should
decidethe merits of this case, I cannot join the Court's opinion or
judgment.
JUSTICE STEVENS, dissenting.
In my opinion, the Court should decide the merits of this case.
Two federal agencies disagree about the meaning of an important
federal statute; it would serve the interests of both to have the
disagreement resolved as promptly as possible. To this end, neither
agency has suggested that the arguments advanced by the other are
not properly before the Court. Since we are now fully advised about
the merits, it would be most efficient for us to resolve the issue
now, rather than to postpone decision until another similar case
works its way up through the agency and the Court of Appeals.
[
Footnote 1]
The Federal Labor Relations Authority (FLRA) is the agency
designated by Congress to enforce the Civil Service Reform Act of
1978, 5 U.S.C. § 7101
et seq. We must therefore presume
that the FLRA has a thorough understanding of the provisions of
that Act, including § 7123(c). [
Footnote 2]
See Chevron U.S.A. Inc. v.
Natural Resources Defense Council, Inc.,
467 U. S. 837,
467 U. S.
844-845 (1984). Under that
Page 476 U. S. 26
provision, the Authority surely knew that it could have
interposed an objection to our consideration of arguments advanced
by the Solicitor General on behalf of the EEOC's construction of
the statute, [
Footnote 3] but
it elected not to take such an approach in this Court. [
Footnote 4] In so doing, it has waived
the protection of § 7123(c) -- and given its palpable interest in
having the merits decided, I believe it has acted wisely in doing
so. [
Footnote 5]
Page 476 U. S. 27
On the merits, I am persuaded that Circular A-76 is not one of
the "applicable laws" described in 5 U.S.C. § 7106(a)(2)(B), and
that requiring compliance with the Circular would intrude on
management's reserved rights. Accordingly, I would reverse the
judgment of the Court of Appeals.
[
Footnote 1]
"[R]espondent's argument might have prevailed had it been made
to the Court of Appeals. But we do not think that judicial economy
is served by invoking [a contemporaneous objection rule] at this
point,
after we have granted certiorari and the case has
received plenary consideration on the merits. Our decision to grant
certiorari represents a commitment of scarce judicial resources
with a view to deciding the merits of one or more of the questions
presented in the petition. Nonjurisdictional defects of this sort
should be brought to our attention
no later than in
respondent's brief in opposition to the petition for certiorari; if
not, we consider it within our discretion to deem the defect
waived."
Oklahoma City v. Tuttle, 471 U.
S. 808,
471 U. S.
815-816 (1985).
[
Footnote 2]
Section 7123(c) provides that
"[n]o objection that has not been urged before the Authority, or
its designee, shall be considered by the court, unless the failure
or neglect to urge the objection is excused because of
extraordinary circumstances."
[
Footnote 3]
See Brief for FLRA in Opposition 11, n. 8, 17, n.
17.
[
Footnote 4]
The Court's "per curiam" opinion implies that its reasons for
dismissing the petition for writ of certiorari were "brought to our
attention . . . in respondent's brief in opposition to the petition
for writ of certiorari."
See ante at
476 U. S. 24. If
this be true, one can only wonder why the Court decided to grant
certiorari. As a matter of fact, however, respondent FLRA's brief
in opposition did not even cite § 7123(c), and did not suggest that
any of the EEOC's contentions had been waived; it merely made the
rhetorical point that a contention that had not been previously
advanced would not appear to have much merit.
[
Footnote 5]
Because the Court has not called for supplementary briefing on
the Authority's ability to waive § 7123(c), its per curiam opinion
in this case is the functional equivalent of a summary disposition
on this point, a manner of proceeding we customarily reserve for
settled issues of law.
See Wyrick v. Fields, 459 U. S.
42,
459 U. S. 51
(1982) (MARSHALL, J., dissenting);
Schweiker v. Hansen,
450 U. S. 785,
450 U. S. 791
(1981) (MARSHALL, J., dissenting); R. Stern, E. Gressman, & S.
Shapiro, Supreme Court Practice § 5.12, p. 277 (6th ed.1986). Until
today, however, the waivability of § 7123(c) had never been
addressed by this Court. (Indeed, § 7123(c) itself has never
received an authoritative construction in this tribunal.) The Court
nonetheless proceeds on the confident assumption that § 7123(c)
should be construed
in pari materia with § 10(e) of the
National Labor Relations Act, 29 U.S.C. § 160(e), because the
language of the former is "virtually identical" to the language of
the latter.
Ante at
476 U. S. 23.
Even accepting the propriety of parallel interpretation -- an
assumption for which the Court adduces no support in either the
Civil Service Reform Act or its legislative history -- the § 10(e)
cases relied on by the Court do not decide the waiver issue
presented by this case. In
Woelke & Romero Framing, Inc. v.
NLRB, 456 U. S. 645,
456 U. S.
665-666 (1982), the Solicitor General offered the §
10(e) defense in his brief in opposition to certiorari,
see Brief for National Labor Relations Board in
Opposition, O.T. 1981, No. 80-1798, p. 11; in
Detroit Edison
Co. v. NLRB, 440 U. S. 301,
440 U. S.
311-312, n. 10 (1979), he offered it in his brief on the
merits in response to an argument raised for the first time in
petitioner's brief on the merits,
see Brief for
Respondent, O.T. 1978, No. 77-968, pp. 17-18; in
May Department
Stores Co. v. NLRB, 326 U. S. 376,
326 U. S. 387,
n. 5 (1946), the Court found "the objection . . . sufficient" to
"put the Board on notice of the issue now presented." Thus, in none
of these cases did this Court honor an objection not relied on by
the affected agency. Moreover, all three dispositions are
consistent with the practice we announced in
Oklahoma City v.
Tuttle, 471 U.S. at
417 U. S. 816,
that
"[n]onjurisdictional defects [barring our review] should be
brought to our attention no later than in respondent's brief in
opposition to the petition for certiorari."
Because § 7123(c) does not deprive this Court of subject matter
jurisdiction (indeed, it authorizes waiver in "extraordinary
circumstances,"
see Department of Treasury v. FLRA, 277
U.S.App.D.C. 377, 381-384, 707 F.2d 574, 578-581 (1983)), I would
adhere to the practice we announced in
Tuttle and decide
the questions presented.
Finally, even if I were persuaded that § 7123(c) is a
nonwaivable bar to our consideration of the arguments advanced by
the Solicitor General for the first time in the petition for
certiorari, I still would not dismiss the writ, because the
arguments that were properly presented to the Court of Appeals had
enough force to convince one judge of that court that the FLRA's
construction of the Act is erroneous. The Court does not adequately
explain why its conclusion that
some arguments cannot be
advanced by the EEOC leads to the further conclusion that its
entire petition must be dismissed.