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, 

INTERVENOR

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. 
2 

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 
3 

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. 
4 

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 
5 

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).
6 

 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. 
7 

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 nonnegotiable. 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 
8 

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). 
9 

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.