ORAL ARGUMENT REQUESTED IN THE UNITED STATES COURT OF APPEALS FOR THE TENTH CIRCUIT No. 01-9528 _______________________________ TINKER AIR FORCE BASE, OKLAHOMA CITY AIR LOGISTICS CENTER, OKLAHOMA CITY, OKLAHOMA, Petitioner v. FEDERAL LABOR RELATIONS AUTHORITY, Respondent AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO, LOCAL 916, Intervenor _______________________________ ON PETITION FOR REVIEW AND CROSS-APPLICATION FOR ENFORCEMENT OF AN ORDER OF THE FEDERAL LABOR RELATIONS AUTHORITY BRIEF FOR THE FEDERAL LABOR RELATIONS AUTHORITY DAVID M. SMITH Solicitor WILLIAM R. TOBEY Deputy Solicitor JAMES F. BLANDFORD Attorney Federal Labor Relations Authority 607 14th Street, N.W. Washington, D.C. 20424 (202) 482-6620 TABLE OF CONTENTS STATEMENT OF JURISDICTION 1 STATEMENT OF THE ISSUE 2 STATEMENT OF THE CASE 2 STATEMENT OF THE FACTS 3 I. Background 3 II. The ALJ's Decision 4 III. Proceedings before the Authority 5 STANDARD OF REVIEW 7 SUMMARY OF ARGUMENT 8 ARGUMENT 12 I. THE COURT LACKS SUBJECT MATTER JURISDICTION BECAUSE THE PETITIONER FAILED TO FILE TIMELY EXCEPTIONS TO THE DECISION OF THE ALJ WITH THE AUTHORITY 12 A. Basic Legal Principles 12 B. The Authority Did Not Abuse Its Discretion by Refusing to Accept Tinker AFB's Improperly Filed Exceptions 14 C. Tinker's Failure to Timely File Exceptions Is Not Excused by Futility 16 1. The Futility Exception to the Administrative Exhaustion Requirement Is to Be Narrowly Applied 17 2. The Futility Exception Does Not Apply in this Case 20 II. ASSUMING THE COURT'S JURISDICTION, THE AUTHORITY PROPERLY DETERMINED THAT MEETINGS BETWEEN REPRESENTATIVES OF TINKER AFB AND BARGAINING UNIT EMPLOYEES, TO DISCUSS A FORMAL DISCRIMINATION COMPLAINT, CONSTITUTED FORMAL DISCUSSIONS CONCERNING A GRIEVANCE PURSUANT TO § 7114(a)(2)(A) OF THE STATUTE 24 A. The Express Language of the Statute 24 B. The Legislative History of the Statute 27 C. The Purpose of the Statute's Provisions 29 D. This Court's Decision in Veterans Affairs .31 E. Tinker AFB's Arguments Concerning the Confidentiality of EEOC Proceedings 33 CONCLUSION 36 STATEMENT REGARDING ORAL ARGUMENT 37 CERTIFICATION PURSUANT TO FRAP RULE 32 38 ADDENDA Relevant portions of the Federal Service Labor-Management Relations Statute, 5 U.S.C. §§ 7101-7135 (2000) and other pertinent statutory and regulatory provisions A-1 TABLE OF AUTHORITIES CASES AFGE, Local 1345 v. FLRA, 793 F.2d 1360 (D.C. Cir. 1986) 29 AFGE v. FLRA, 865 F.2d 1283 (D.C. Cir. 1989) 25, 29 Am. Farm Lines v. Black Ball Freight Serv., 397 U.S. 532 (1970) 7 Am. Fed'n of Gov't Employees, Local 2343 v. FLRA, 144 F.3d 85 (D.C. Cir. 1998) 7 Am. Fed'n of Gov't Employees v. FLRA, 744 F.2d 73 (10th Cir. 1984) 7 Andrews v. Orr, 851 F.2d 146 (6th Cir. 1988) 15, 16 Aramark Corp. v. NLRB, 179 F.3d 872 (10th Cir. 1999) 24 Baldwin County Welcome Ctr. v. Brown, 466 U.S. 147 (1984) 15 Bureau of Alcohol, Tobacco and Firearms v. FLRA, 464 U.S. 89 (1983) 7 C.E. Carlson, Inc. v. S.E.C., 859 F.2d 1429 (10th Cir.1988) 18 Chevron, U.S.A., Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837 (1984) 7 Climax Molybdenum Co. v. Sec'y of Labor, 703 F.2d 447 (10th Cir. 1983) 7 Dep't of the Treasury v. FLRA, 837 F.2d 1163 (D.C. Cir. 1988) 7 Dep't of Veterans Affairs, Denver, Colo. v. FLRA, 3 F.3d 1386 (10th Cir. 1993) 26, 29, 30, 31, 32, 33 Dep't of Veterans Affairs Med. Ctr., Long Beach, Cal. v. FLRA, 16 F.3d 1526 (9th Cir. 1994) 33 Detroit Edison Co. v. NLRB, 440 U.S. 301 (1979) 13 Diaz v. United Agric. Employee Welfare Benefit Plan & Trust, 50 F.3d 1478 (9th Cir. 1995) 19 Drukker Communications, Inc. v. NLRB, 700 F.2d 727 (D.C. Cir. 1983) 13 EEOC v. FLRA, 476 U.S. 19 (1986) 13, 22 FLRA v. Dep't of Justice, No. 97-4001 (2d Cir. Oct. 7, 1999) 17 FLRA v. Dep't of Justice, 137 F.3d 683 (2d Cir. 1998), vacated and remanded by 527 U.S. 1031 (1999) 9, 16, 20, 23 FLRA v. Dep't of Justice, 527 U.S. 1031 (1999) 17 Fizer v. Safeway Stores, Inc., 586 F.2d 182 (10th Cir. 1978) 18 Green Country Mobile Phone, Inc. v. F.C.C., 765 F.2d 235 (D.C. Cir. 1985) 7, 15 Greene v. Meese, 875 F.2d 639 (7th Cir. 1989) 18, 22 Gustafson v. Alloyd Co., 513 U.S. 561 (1995) 25 Hooper v. Nat'l Transp. Safety Bd., 841 F.2d 1150 (D.C. Cir. 1988) 8, 15 Internal Revenue Service, Fresno Service Center v. FLRA, 706 F.2d 1019 (9th Cir. 1983), 29, 33 Jefferson-Pilot Corp. v. Commissioner of Internal Revenue, 12 F.3d 1005 (10th Cir. 1993) 26 KBI Security Serv., Inc. v. NLRB, 91 F.3d 291 (2d Cir. 1996) 14 Kawaauhau v. Geiger, 523 U.S. 57 (1998) 26 Kelley v. NLRB, 79 F.3d 1238 (1st Cir. 1996) 16 Keystone Roofing Co. v. OSHRC, 539 F.2d 960 (3rd Cir. 1976) 19 Makar v. Health Care Corp., 872 F.2d 80 (4th Cir. 1989) 19 Marine Mammal Conservancy, Inc. v. Dep't of Agric., 134 F.3d 409 (D.C. Cir. 1998) 19 Mountain Solutions, Ltd., Inc. v. FCC, 197 F.3d 512 (D.C. Cir. 1999) 15 NASA v. FLRA, 527 U.S. 229 (1999) 34, 35 NLRB v. Dominick's Finer Foods, Inc., 28 F.3d 678 (7th Cir. 1994) 14 NLRB v. FLRA, 2 F.3d 1190 (D.C. Cir. 1993) 23 NLRB v. Howard Immel, Inc., 102 F.3d 948 (7th Cir. 1996) 14 NLRB v. L&B; Cooling, Inc., 757 F.2d 236 (10th Cir. 1985); 14 NLRB v. Tri-State Warehouse & Distributing, Inc., 677 F.2d 31 (6th Cir. 1982) 14 NTEU v. FLRA, 774 F.2d 1181 (D.C. Cir. 1985) 25, 26, 27, 29, 30, 32 Overseas Education Association, Inc. v. FLRA, 961 F.2d 36 (2d Cir. 1992) 19 Randolph-Sheppard Vendors of Am. v. Weinberger, 795 F.2d 90 (D.C. Cir. 1995) 18 Springer v. Wal-Mart Assocs. Group Health Plan, 908 F.2d 897 (11th Cir. 1990) 19 Tele-Communications, Inc. v. Commissioner of Internal Revenue, 12 F.3d 1005 (10th Cir. 1993) 25 Thetford Properties v. United States Dep't of Housing & Urban Dev., 907 F.2d 445 (4th Cir. 1990) 19 UDC Chairs Chapter, Am. Ass'n of Univ. Professors v. Bd. of Trustees of the University of the Dist. of Columbia, 56 F.3d 1469 (D.C. Cir. 1995) 18 U.S. Immigration and Naturalization Serv. v. FLRA, 4 F.3d 268 (4th Cir. 1993) 34 United States Dep't of Energy v. FLRA, 880 F.2d 1163 (10th Cir. 1989) 7 United States v. L.A. Tucker Truck Lines, 344 U.S. 33 (1952) 17 Urban v. Jefferson County School Dist. R-1, 89 F.3d 720 (10th Cir. 1996) 18 Van Dorn Plastic Mach. Co. v. NLRB, 881 F.2d 302 (6th Cir. 1989) 19 Washington Ass'n for Tel. & Children v. FCC, 712 F.2d 677 (D.C. Cir. 1983) 17 Woelke & Romero Framing, Inc. v. NLRB, 456 U.S. 645 (1982) 13 In Re Yochum, 89 F.3d 661 (9th Cir. 1996) 25 DECISIONS OF THE FEDERAL LABOR RELATIONS AUTHORITY Dep't of the Air Force, 436th Airlift Wing, Dover Air Force Base, Dover, Del., 57 F.L.R.A. 304 (2001), petition for review filed, No. 01-1373 (D.C. Cir. Aug 24, 2001) 10, 22, 35 Dep't of the Air Force, March Air Reserve Base, Calif., 57 F.L.R.A. 392 (2001) 30 Dep't of the Air Force, Scott Air Force Base, 51 F.L.R.A. 675 (1995) 22 Luke Air Force Base, Arizona, 54 F.L.R.A. 716 (1998), rev'd Luke Air Force Base v. FLRA, 208 F.3d 221 (9th Cir. 1999)(Table), cert. denied 121 S. Ct. 60 (2000) 4, 21, 30 United States Dep't of Justice, Bureau of Prisons, Fed. Corr. Inst., Ray Brook, NY, 29 F.L.R.A. 584 (1987), aff'd sub nom. AFGE v. FLRA, 865 F.2d 1283 (D.C. Cir. 1989). 29, 30 United States Immigration and Naturalization Serv., United States Border Patrol, El Paso, Tex., 47 F.L.R.A. 170 (1993) 30 STATUTES Federal Service Labor-Management Relations Statute, 5 U.S.C. §§ 7101-7135 (2000) 1 5 U.S.C. § 7103(a)(9) 4, 10, 25, 27, 31 5 U.S.C. § 7105(a)(2)(G) 1 5 U.S.C. § 7114 26, 28, 30 5 U.S.C. § 7114(a)(2)(A) passim 5 U.S.C. § 7114(a)(2)(B) 34 5 U.S.C. § 7116(a)(1) 2 5 U.S.C. § 7116(a)(8) 2 5 U.S.C. § 7118 2 5 U.S.C. § 7121 26, 27, 28 5 U.S.C. § 7121(b)(1)(C) 27 5 U.S.C. § 7121(c) 29 5 U.S.C. § 7123(b) 2 5 U.S.C. § 7701- 7703 32 5 U.S.C. § 7702 32 42 U.S.C. § 2000e-16(a) 4, 10 42 U.S.C. § 2000e-16(c) 10 National Labor Relations Act, 29 U.S.C. § 160(e) 13 Privacy Act of 1974, 5 U.S.C. § 552a 34 CODE OF FEDERAL REGULATIONS 5 C.F.R. § 2423.34 5 5 C.F.R. § 2423.41(a) 2, 5, 6, 12, 13, 14 5 C.F.R. § 2429.24 5, 14 29 C.F.R. § 102.46 (b) (1978) 13 29 C.F.R. § 1614.108 3 29 C.F.R. Pt. 1201 32 29 C.F.R. Pt. 1614 32 LEGISLATIVE HISTORY H.R. Rep. No. 95-1403 (1978), reprinted in Subcommittee on Postal Personnel and Modernization of the Committee on Post Office and Civil Service, 96th Congress, 1st Sess., Legislative History of the Federal Service Labor-Management Relations Statute, Title VII of the Civil Service Reform Act of 1978 27, 28, 29 MISCELLANEOUS Executive Order 12,106, 3 C.F.R. 586 (1978), reprinted in 42 U.S.C. § 2000e-4 note 32 Executive Order 12,107, 3 C.F.R. 791 (1978), reprinted in 5 U.S.C. § 1101 note 32 67 U.S.L.W. 3344 (U.S. Nov. 17, 1998) 17 STATEMENT OF RELATED CASES There are no prior or related appeals in this case. However, Department of the Air Force, 436th Airlift Wing, Dover Air Force Base v. FLRA, No. 01-1373 (D.C. Cir., oral argument scheduled Oct. 10, 2002) also concerns a union's right under 5 U.S.C. § 7114(a)(2)(A) to have notice and an opportunity to attend formal discussions concerning discrimination complaints filed pursuant to EEOC procedures. IN THE UNITED STATES COURT OF APPEALS FOR THE TENTH CIRCUIT No. 01-9528 _______________________________ TINKER AIR FORCE BASE, OKLAHOMA CITY AIR LOGISTICS CENTER, OKLAHOMA CITY, OKLAHOMA, Petitioner v. FEDERAL LABOR RELATIONS AUTHORITY, Respondent AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO, LOCAL 916, Intervenor _______________________________ ON PETITION FOR REVIEW AND CROSS-APPLICATION FOR ENFORCEMENT OF AN ORDER OF THE FEDERAL LABOR RELATIONS AUTHORITY BRIEF FOR THE FEDERAL LABOR RELATIONS AUTHORITY STATEMENT OF JURISDICTION The order under review in this case was issued by the Federal Labor Relations Authority (Authority) on May 29, 2001, and is found at Appendix (App.) 68-70. The Authority exercised jurisdiction over the case pursuant to § 7105(a)(2)(G) of the Federal Service Labor-Management Relations Statute, 5 U.S.C. §§ 7101-7135 (2000) (Statute).[1] This Court lacks subject matter jurisdiction to review the Authority's order in this case because by failing to file timely exceptions to the decision of the Administrative Law Judge (ALJ) with the Authority, petitioner, Tinker Air Force Base, Oklahoma City Air Logistics Center, Oklahoma City, Oklahoma (Tinker AFB), has waived all objections to the Authority's final order. This Court has jurisdiction to enforce the Authority's order pursuant to § 7123(b) of the Statute.[2] STATEMENT OF THE ISSUE I. Whether the Court lacks subject matter jurisdiction because the petitioner failed to file timely exceptions to the decision of the ALJ with the Authority. II. Assuming the Court's jurisdiction, whether the Authority properly determined that meetings between representatives of Tinker AFB and bargaining unit employees, to discuss a formal discrimination complaint, constituted formal discussions concerning a grievance pursuant to § 7114(a)(2)(A) of the Statute. STATEMENT OF THE CASE This case arose as an unfair labor practice (ULP) proceeding brought under § 7118 of the Statute. The Authority adjudicated a ULP complaint based on a charge filed by the American Federation of Government Employees, Local 916 ("Local 916" or "the Union") alleging that Tinker AFB violated § 7116(a)(1) and (8) of the Statute by holding formal discussions with bargaining unit members without affording the Union adequate notice and an opportunity to attend. An Authority ALJ heard the case and issued a recommended order finding that Tinker AFB violated the Statute as alleged. Tinker AFB attempted to file exceptions to the ALJ's decision, but the Authority determined that the exceptions were not timely filed. Accordingly, pursuant to § 2423.41(a) of its regulations, 5 C.F.R. § 2423.41(a) (2002), the Authority held that the findings, conclusions, and recommendations of the ALJ constituted, without precedential significance, the findings, conclusions, and decision and order of the Authority. Tinker AFB now seeks review of the Authority's final order and the Authority seeks enforcement of its order. Local 916 has intervened on the Authority's behalf. STATEMENT OF THE FACTS I. Background The American Federation of Government Employees (AFGE) is the exclusive bargaining representative of a nationwide consolidated unit of certain Air Force employees, including the employees located at Tinker AFB. Local 916 is AFGE's agent for purposes of representing bargaining unit employees at Tinker AFB. The applicable collective bargaining agreement provides that where an employee believes that he or she is the victim of illegal discrimination, the employee may use either the negotiated grievance procedure or file a complaint under the procedures of the Equal Employment Opportunity Commission (EEOC). App.19. Under the EEOC complaint process the employing agency must investigate the complaint. 29 C.F.R. § 1614.108. The Department of Defense has created the Office of Complaint Investigations (OCI) to conduct these investigations throughout the Department. App. 19-20. Two bargaining unit employees filed complaints under the EEOC procedures, alleging illegal discrimination by Tinker AFB. Both employees designated Local 916 to be their representative at all phases of the complaint process. In turn, Local 916 notified Tinker AFB's Chief of Labor Relations of the specific individual designated in each case to be present whenever unit employees were to be "interviewed by Agency representatives (including OCI investigators) . . . ." App. 21. The Labor Relations Chief never replied to the Union's letter. Id. Tinker accepted both of the complaints and an OCI investigator was assigned to conduct the investigations. App. 21-22. In the course of the investigations, the OCI investigator interviewed two bargaining unit members other than the complainants. Local 916 was never notified of the interviews and therefore had no opportunity to attend the meetings. App. 22-23. II. The ALJ's Decision The ALJ concluded that Tinker AFB violated § 7114(a)(2)(A) of the Statute by not affording Local 916 an opportunity to attend the interviews of bargaining unit employees conducted by the OCI investigator. App. 23-24. Section 7114(a) provides in pertinent part that: (2) An exclusive representative of an appropriate unit in an agency shall be given the opportunity to be represented at- (A) any formal discussion between one or more representatives of the agency and one or more employees in the unit or their representatives concerning any grievance or any personnel policy or practices or other general condition of employment[.] 5 U.S.C. § 7114(a)(2)(A). The ALJ first determined that the interviews were formal discussions between a representative of the agency and bargaining unit employees. App. 25-29.[3] Then the ALJ found that the interviews concerned "grievances" within the meaning of § 7114(a)(2)(A). Relying on the Authority's decision in Luke Air Force Base, Arizona, 54 F.L.R.A. 716 (1998) (Luke AFB), rev'd Luke Air Force Base v. FLRA, 208 F.3d 221 (9th Cir. 1999) (Table), cert. denied, 121 S. Ct. 60 (2000), the ALJ noted that the Authority applies the broad definition of grievance found in § 7103(a)(9) of the Statute and that the Authority's application had been endorsed by the United States Courts of Appeals for the Tenth and District of Columbia Circuits.[4] Also relying on Luke AFB, the ALJ held that union presence at discussions in the EEOC process would not conflict with the regulations of the EEOC or the Administrative Dispute Resolution Act (ADR Act). App. 29-30. Consistent with the foregoing, the ALJ recommended that the Authority issue an appropriate remedial order. App. 31. In accordance with § 2423.34 of the Authority's regulations, 5 C.F.R. § 2423.34, the ALJ transmitted his decision to the Authority and served copies on all parties. The ALJ's notice transmitting his decision to the parties provided specific directions concerning the filing of exceptions with the Authority. The notice stated: PLEASE BE ADVISED that the filing of exceptions to the attached Decision is governed by 5 C.F.R. §§ 2423.40-2423.41, 2429.12, 2429.21-2429.22, 2429.24-2429.25, and 2429.27. Any such exceptions must be filed on or before APRIL 30, 2001, and addressed to: Federal Labor Relations Authority Office of Case Control 607 14th Street, NW., Suite 415 Washington, DC 20424-0001 App 17. The address specified in the ALJ's notice was drawn directly from § 2429.24 of the Authority's regulations, which the notice cited. III. Proceedings before the Authority On May 8, 2001, having received no exceptions to the ALJ's decision, the Authority issued an "Order to Show Cause," requiring Tinker AFB to show cause why the Authority should not take action under § 2423.41(a) of the Authority's regulations, 5 C.F.R. § 2423.41(a) (2001). App. 34. Section 2423.41(a) provides that in the absence of timely-filed exceptions, the findings, conclusions, and recommendations of the ALJ shall, without precedential significance, become the findings, conclusions, decision and order of the Authority. In addition, the regulation states that, absent timely exceptions, all objections and exceptions to the rulings and decision of the ALJ shall be deemed waived for all purposes. The Order to Show Cause noted that the Authority's General Counsel and Local 916 had filed oppositions to exceptions, but that the Authority had not received any exceptions from Tinker AFB. The Order to Show Cause provided Tinker AFB the opportunity to furnish proof that its exceptions had been timely filed with the Authority. App. 35. In its "Agency Response to Order to Show Cause," Tinker AFB stated that although it failed to file its exceptions with the Case Control Office, it timely served copies on, among others, the Authority's General Counsel and the Authority's Chief ALJ. App. 37-39. Tinker AFB asserted that by serving the Authority's General Counsel it had perfected service on the Authority and that its failure to file exceptions following the directions in the ALJ's transmittal notice was regretful, but "de minimus in nature." App. 39. Tinker AFB attached a copy of its exceptions to its response. App. 44-65. On May 29, 2001, the Authority issued an unpublished order finding that Tinker AFB's exceptions were not timely filed. The Authority noted that its regulations require that exceptions be filed with the Case Control Office, and that the Case Control Office failed to receive the exceptions until they were filed along with the response to the Show Cause Order. Consequently, pursuant to § 2423.41(a) of its regulations, the Authority held that the findings, conclusions, and recommendations of the ALJ constituted, without precedential significance, the findings, conclusions, and decision and order of the Authority. App. 68-70. STANDARD OF REVIEW The standard of review of Authority decisions is "narrow." Am. Fed'n of Gov't Employees, Local 2343 v. FLRA, 144 F.3d 85, 88 (D.C. Cir. 1998). Because of its expertise in interpreting federal labor law, the Authority "is entitled to considerable deference." Am. Fed'n of Gov't Employees v. FLRA, 744 F.2d 73, 75 (10th Cir. 1984) (quoting Bureau of Alcohol, Tobacco and Firearms v. FLRA, 464 U.S. 89, 97 (1983)). Authority action shall be set aside only if it is "arbitrary, capricious, an abuse of discretion, or . . . otherwise not in accordance with law." United States Dep't of Energy v. FLRA, 880 F.2d 1163, 1165 (10th Cir. 1989) (citing 5 U.S.C. § 706(2)(A)). Under this standard, unless it appears from the Statute or its legislative history that the Authority's construction of its enabling act is not one that Congress would have sanctioned, the Authority's construction should be upheld. See Chevron, U.S.A., Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837, 844 (1984). A court should defer to the Authority's construction as long as it is reasonable. See id. at 845. To the extent the Authority is required to interpret and apply other statutes, although it is not entitled to deference, the Authority's interpretation should be followed to the extent the reasoning is "sound." Dep't of the Treasury v. FLRA, 837 F.2d 1163, 1167 (D.C. Cir. 1988). Furthermore, administrative agencies retain substantial discretion in formulating, interpreting, and applying their own procedural rules. Climax Molybdenum Co. v. Sec'y of Labor, 703 F.2d 447, 451 (10th Cir. 1983) (citing Am. Farm Lines v. Black Ball Freight Serv., 397 U.S. 532, 539 (1970)). As relevant here, agency determinations not to waive procedural requirements will be reversed only when the agency has abused its discretion. Green Country Mobile Phone, Inc. v. F.C.C., 765 F.2d 235, 238 (D.C. Cir. 1985) (Green Country). The burden to show an abuse of discretion "is a heavy one," and only where an agency has inconsistently applied a procedural rule will a reviewing court find that an agency abused its discretion in such matters. Id.; see also Hooper v. Nat'l Transp. Safety Bd., 841 F.2d 1150, 1151 n.2 (D.C. Cir. 1988) (agency may enforce a rule as strictly as it pleases as long as it does so uniformly). SUMMARY OF ARGUMENT 1. Under the National Labor Relations Act, where a party fails to timely file exceptions to the decision of the agency's ALJ, that party fails to preserve its contentions for judicial review. This well-established principle is equally applicable to the analogous provisions for judicial review under the Statute. Because Tinker AFB concededly failed to timely file exceptions in accordance with the Authority's regulations, this Court is without jurisdiction to consider Tinker AFB's objections to the ALJ's decision. Tinker AFB argues, without merit, that: (1) the Authority abused its discretion by refusing to accept the misfiled exceptions; and (2) that Tinker AFB should be excused from filing exceptions because to do so would have been futile. A. The burden of establishing that an administrative agency has abused its discretion in denying a waiver of its procedural rules is a heavy one, and an agency's strict, but consistent, application of its rules is insufficient to establish such an abuse. Here, Tinker AFB cites no appellate cases where a similar administrative determination has been reversed, nor any case where the Authority has waived a time limit under similar circumstances. Tinker AFB contends only that there would be no prejudice to other parties if the time limits were waived in this case. However, the lack of prejudice is a factor in waiving procedural requirements only when other mitigating factors are present. As no other reason for waiving the Authority's procedural requirements are asserted, much less established, Tinker AFB clearly has not met its burden to establish an abuse of discretion by the Authority. B. Alternatively, Tinker AFB argues that "extraordinary circumstances," specifically the futility of filing exceptions, excuse its failure to present its objections to the Authority. Not only is Tinker AFB's interpretation of the futility exception overly expansive, but on any interpretation the exception does not apply in the facts of this case. To support its futility argument, Tinker AFB cites only FLRA v. Dep't of Justice, 137 F.3d 683 (2d Cir. 1998), vacated and remanded by 527 U.S. 1031 (1999). The liberal application of the futility exception found in that case is inconsistent with the view of the Supreme Court, and this and other circuit courts, all of which disfavor the application of the futility exception to the requirement of administrative exhaustion. Further, there is no basis on which to conclude that filing exceptions in this case would have been a futile gesture. Apparently not foreseeing futility, Tinker AFB attempted to file multiple exceptions, but because it failed to adhere to the Authority's regulations and the ALJ's instructions, the exceptions were not timely filed. Tinker AFB's futility argument constitutes only a post hoc attempt to escape the consequences of its conceded failure to abide by the Authority's regulations. In addition, the issues raised by Tinker AFB in its untimely-filed exceptions concerned matters as to which the Authority did not have established precedent, either because they were fact specific to the case at hand or they involved issues never decided by the Authority. Attempting to evade this difficulty, Tinker AFB only brings to this Court the one issue that has an extended history of litigation, namely, whether discrimination complaints filed under the procedures of the EEOC are "grievances" within the scope of § 7114(a)(2)(A) of the Statute. However, even with respect to this issue there was no reason to believe that the Authority's position was so well entrenched that filing exceptions would be futile. As noted by Tinker AFB, the Authority's view had been rejected by the Ninth Circuit and at the time of the ALJ's decision in the instant case, the Authority had not revisited the issue. Nor does the Authority's subsequent decision in Dep't of the Air Force, 436th Airlift Wing, Dover Air Force Base, Dover, Del., 57 F.L.R.A. 304 (2001) (Dover AFB), petition for review filed, No. 01-1373 (D.C. Cir. Aug 24, 2001) support Tinker AFB's futility argument. Although the Authority continued to hold that EEOC complaints are "grievances" within the scope of § 7114(a)(2)(A), one member of the Authority reconsidered her earlier views and dissented. Further, the majority expanded on its rationale in light of the Ninth Circuit's reversal. Similar consideration would have likely been granted to Tinker AFB's arguments had its exceptions been properly filed. 2. Assuming the Court's jurisdiction, Tinker AFB's arguments on the merits should be rejected. Tinker AFB mistakenly contends that complaints of illegal discrimination filed pursuant to the statutory procedures administered by the EEOC are not "grievances" within the scope of § 7114(a)(2)(A) of the Statute. The definitional section of the Statute defines grievance as "any complaint . . . by any employee concerning any matter relating to the employment of the employee[.]" 5 U.S.C. § 7103(a)(9). To maintain its position, Tinker AFB must establish that an employee's allegation of illegal discrimination by his or her employer is not a complaint by an employee concerning a matter related to his or her employment. Such a proposition is facially absurd and must be rejected. Nonetheless, Tinker AFB argues that, irrespective of the Statute's clear definition, the term "grievance" is limited to grievances pursued under a negotiated grievance procedure (NGP). Besides being contrary to the Statute's plain language, this argument is also without any collateral support. This Court, as well as the Ninth and District of Columbia Circuits, have held that the term "grievance" encompasses complaints filed under statutory appeals processes as well as under NGPs. As these courts have recognized, the Statute and its legislative history show that statutory appeals are simply alternative forums for pursuing grievances, not a category separate and apart from "grievances." Tinker AFB's attempts to distinguish this clear precedent on the grounds that those cases concerned appeals to the Merit Systems Protection Board (MSPB) are unavailing. Initially, Tinker AFB does not point to anything in the Statute to explain why "any complaint" includes MSPB procedures, but excludes EEOC procedures. In addition, with regard to the meaning of "grievance" in § 7114(a)(2)(A), there is no relevant difference between MSPB procedures and EEOC procedures. Both procedures are different than NGPs, and both are governed by rules and regulations of independent government agencies. Finally, the special confidentiality concerns that Tinker AFB suggests are present in EEOC complaints are insufficient to support a nontextual construction of the term "grievance" as used in section 7114(a)(2)(A). First, nothing in the statutes or regulations governing EEOC complaints prohibit union attendance at discussions concerning those complaints. Second, EEOC complaints are not unique in that they raise sensitive and personal matters. Many employee complaints, regardless of the forum in which they are raised may involve such matters. Thirdly, Tinker AFB does not contend that there are any confidentiality issues present in this case. Instead, it raises these issues only in general or hypothetical terms. The Authority has recently reaffirmed that where actual conflicts between the rights of a complainant and those of a union are raised they will be considered. However, the Authority has reasonably stated that such issues are most appropriately addressed when present in an actual case, not when raised hypothetically. ARGUMENT I. THE COURT LACKS SUBJECT MATTER JURISDICTION BECAUSE THE PETITIONER FAILED TO FILE TIMELY EXCEPTIONS TO THE DECISION OF THE ALJ WITH THE AUTHORITY By failing to file timely exceptions to the ALJ's decision, Tinker AFB waived "for all purposes" all objections and exceptions to the findings and conclusions of the ALJ. 5 C.F.R. § 2423.41(a). Accordingly, Tinker AFB is precluded from objecting to the ALJ's decision before this Court. See 5 U.S.C. § 7123(c). Tinker AFB concedes that it did not file exceptions in accordance with the Authority's regulations, but argues that it may, nonetheless, press its objections before this Court. In that regard, Tinker AFB argues alternatively that: (1) the Authority abused its discretion by refusing to accept Tinker AFB's misfiled exceptions (Petitioner's Brief (Br.) 24-26); and (2) in any event, Tinker AFB should be excused from filing exceptions because to do so would have been futile (Br. 19-24). Neither argument has merit.[5] A. Basic Legal Principles It is well established that a party may not raise before the Court an argument not presented to the Authority. Pursuant to 5 U.S.C. § 7123(c), "[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 such objection is excused because of extraordinary circumstances." 5 U.S.C. § 7123(c). The Supreme Court has explained that the purpose of this provision is to ensure "that the [Authority] shall pass upon issues arising under the [Statute], thereby bringing its expertise to bear on the resolution of those issues." EEOC v. FLRA, 476 U.S. 19, 23 (1986) (EEOC). Section 7123(c)'s language "is virtually identical to that found in § 10(e) of the National Labor Relations Act[ (NLRA)], 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.'" EEOC, 476 U.S. at 23. The Supreme Court has interpreted § 10(e) to mean that a court of appeals is "without jurisdiction to consider" an issue not raised before the National Labor Relations Board ("Board" or "NLRB") if the failure to do so is not excused by extraordinary circumstances. Woelke & Romero Framing, Inc. v. NLRB, 456 U.S. 645, 665-66 (1982). Further, and as relevant here, in applying § 10(e) of the NLRA, the Supreme Court has barred consideration of a matter which, though part of the ALJ's decision, was not excepted to before the Board. Detroit Edison Co. v. NLRB, 440 U.S. 301, 311 & n.10 (1979) (Detroit Edison); see also Drukker Communications, Inc. v. NLRB, 700 F.2d 727, 734 n.6 (D.C. Cir. 1983). The Supreme Court's analysis in Detroit Edison is directly applicable to the case at hand. The Court there found that a regulation of the Board, 29 C.F.R. § 102.46(b) (1978), which provided that any exception to a finding of the ALJ not specifically urged before the Board "shall be deemed to have been waived," served a sound purpose and was binding on the Court. 440 U.S. at 312 n.10. Section 2423.41(a) of the Authority's regulations similarly provides that in the absence of timely exceptions to an ALJ's decision, "all objections and exceptions [thereto] shall be deemed waived for all purposes." 5 C.F.R. § 2423.41(a). Applying these principles, this Court, as well as other courts of appeals, have consistently held that they are without jurisdiction to consider matters raised before an ALJ but not timely excepted to before the Board. See NLRB v. L&B; Cooling, Inc., 757 F.2d 236, 240 (10th Cir. 1985); see also NLRB v. Howard Immel, Inc., 102 F.3d 948, 951 (7th Cir. 1996); KBI Security Serv., Inc. v. NLRB, 91 F.3d 291, 294 (2d Cir. 1996); NLRB v. Tri-State Warehouse & Distributing, Inc., 677 F.2d 31, 31-32 (6th Cir. 1982). This well-established principle should similarly be applied to the facts in this case. B. The Authority Did Not Abuse Its Discretion by Refusing to Accept Tinker AFB's Improperly Filed Exceptions As noted above, it is not disputed that Tinker AFB did not file exceptions in accordance with the Authority's regulations. In spite of the explicit directions found in both the ALJ's transmittal notice accompanying his decision and § 2429.24 of the Authority's regulations, referenced in the notice, Tinker AFB did not file its exceptions with the appropriate Authority component within the prescribed time limits.[6] The Authority's regulations also make it clear that in order to preserve objections to an ALJ's decision, exceptions must be filed pursuant to those regulations. See 5 C.F.R. § 2423.41(a). Matters must be presented to the Authority at the proper time and in accordance with its prescribed practices. See NLRB v. Dominick's Finer Foods, Inc., 28 F.3d 678, 685-86 (7th Cir. 1994) (holding that raising matters to agents of the Board is insufficient to preserve issue for review if exceptions not filed with the Board). Although Tinker AFB correctly asserts that under the Authority's regulations the Authority has the discretion to waive the time limits for filing exceptions (see 5 C.F.R. § 2429.23), Tinker AFB fails to demonstrate that the Authority abused its discretion by not waiving the time limits in this case. It is well established that in this context the burden to show an abuse of discretion "is a heavy one." Green Country, 765 F.2d at 238. In that regard, reviewing courts will not second guess an agency's strict application of its own procedural regulations. Id. at 237. Standing alone, an agency's strict construction of a procedural rule in the face of a waiver request is insufficient evidence of an abuse of discretion. Mountain Solutions, Ltd., Inc. v. FCC, 197 F.3d 512, 517 (D.C. Cir. 1999) (citations omitted). Generally, only where an agency has inconsistently applied a procedural rule will a reviewing court find that an agency abused its discretion in such matters. Green Country, 765 F.2d at 238; see also Hooper v. Nat'l Transp. Safety Bd., 841 F.2d 1150, 1151 n.2 (D.C. Cir. 1988) (holding that an agency may enforce a rule as strictly as it pleases as long as it does so uniformly). Tinker AFB does no more than simply assert that the Authority has abused its discretion, citing no authority for reversing the Authority's determination. In that regard, Tinker AFB references no appellate cases where an analogous administrative determination has been reversed, nor any case where the Authority has waived a time limit under similar circumstances. Tinker AFB's only suggested rationale (Br. 25), but without supporting authority, is that there would be no prejudice to other parties if the time limits were waived in this case. However, it is well established that the lack of prejudice is a factor in waiving procedural requirements only when other mitigating factors are present. See Baldwin County Welcome Ctr. v. Brown, 466 U.S. 147, 152 (1984) (Baldwin County) ("Although absence of prejudice is a factor to be considered in determining whether the doctrine of equitable tolling should apply once a factor that might justify such tolling is identified, it is not an independent basis for invoking the doctrine and sanctioning deviations from established procedures."). As the Sixth Circuit has held, in order to justify tolling or waiving time limits, "we [must] look beyond the absence of prejudice[.]" Andrews v. Orr, 851 F.2d 146, 151 (6th Cir. 1988); see also Kelley v. NLRB, 79 F.3d 1238, 1250 (1st Cir. 1996) (explaining that in ULP context, absence of prejudice is not an independent basis "sanctioning deviations from established procedures") (quoting Baldwin County, 466 U.S. at 152). Tinker AFB clearly has not met its burden to establish an abuse of discretion on the Authority's part. C. Tinker's Failure to Timely File Exceptions Is Not Excused by Futility As discussed above, § 7123(c) of the Statute deprives a reviewing court of jurisdiction over matters not objected to before the Authority "unless the failure or neglect to urge the objection is excused because of extraordinary circumstances." Tinker AFB contends (Br. 19-24) that, even if the Authority properly deemed its exceptions untimely, extraordinary circumstances exist that excuse its failure to present its objections to the Authority. Specifically, Tinker AFB contends that its failure to exhaust the Authority's process should be excused because "the filing of exceptions would have been a futile gesture." Br. 23. In support of its contention Tinker relies only on FLRA v. Dep't of Justice, 137 F.3d 683 (2d Cir. 1998) (Dep't of Justice), vacated and remanded by 527 U.S. 1031 (1999). As demonstrated below, Tinker AFB's arguments are meritless. First, it urges an overly expansive interpretation of the futility exception that is inconsistent with the views of the Supreme Court and other courts of appeals, including this one. Second, under any interpretation of futility, the exception does not apply in the facts of this case. 1. The Futility Exception to the Administrative Exhaustion Requirement Is To Be Narrowly Applied "Futility should not lightly be presumed," as the D.C. Circuit observed based upon its analysis of the Supreme Court's decision in United States v. L.A. Tucker Truck Lines, 344 U.S. 33, 37 (1952) (L.A. Tucker). Washington Ass'n for Tel. & Children v. FCC, 712 F.2d 677, 682 n.9 (D.C. Cir. 1983). The Supreme Court stated in L.A. Tucker that "orderly procedure and good administration require that objections to the proceedings of an administrative agency be made while it has opportunity for correction in order to raise issues reviewable by the courts." 344 U.S. at 37. This requirement holds even when it is argued that the administrative agency "had a predetermined policy on [the relevant] subject which would have required it to overrule the objection if made," because repetition of an objection could lead to a change of policy by the agency. Id. Thus, "[s]imple fairness . . . requires as a general rule that courts should not topple over administrative decisions unless the administrative body not only has erred but has erred against objection made at the time appropriate under its practice." Id. To counter this established Supreme Court precedent, Tinker AFB relies on Dep't of Justice, a Second Circuit case lacking viability as precedent because the judgment was vacated by the Supreme Court. In that case, the Authority sought certiorari on both the administrative exhaustion issue and on the merits question in the case. See 67 U.S.L.W. 3344 (U.S. Nov. 17, 1998). The Supreme Court, in a memorandum order without further explication, granted certiorari, vacated the judgment, and remanded the case for further consideration. FLRA v. Dep't of Justice, 527 U.S. 1031 (1999). On remand the court enforced the Authority's order. FLRA v. Dep't of Justice, No. 97-4001 (2d Cir. Oct. 7, 1999). However, even assuming the continued viability of Dep't of Justice, the liberal application of the futility exception employed by the Second Circuit should not be adopted by this Court because it is inconsistent with the view of the Supreme Court and other courts of appeals. The Second Circuit's overly indulgent interpretation and application of the futility exception conflicts not only with the L.A. Tucker language set out above, but also with other circuits' more restrictive views of administrative exhaustion and the futility exception. In rejecting a futility argument, the Seventh Circuit explained why the futility exception should be reluctantly applied: No doubt denial is the likeliest outcome, but that is not sufficient reason for waiving the requirement of exhaustion. Lightning may strike; and even if it doesn't, in denying relief the Bureau may give a statement of reasons that is helpful to the district court in considering the merits of the claim. Greene v. Meese, 875 F.2d 639, 641 (7th Cir. 1989). This Court has also narrowly construed the futility doctrine. See C.E. Carlson, Inc. v. S.E.C., 859 F.2d 1429, 1439 (10th Cir. 1988) (stating that agency's past response is not a sufficient ground for presuming futility); see also Fizer v. Safeway Stores, Inc., 586 F.2d 182, 183 (10th Cir. 1978) (holding that exhaustion of remedies may be excused only on a "clear and positive showing of futility") (internal quotations omitted). In addition, this Court has held that the futility exception applies only where "structural or systemic" failures render exhaustion futile. Urban v. Jefferson County School Dist. R-1, 89 F.3d 720, 725 (10th Cir. 1996) (internal quotations omitted). In addition, the D.C. Circuit has consistently held that the mere "'probability of administrative denial of the relief requested does not excuse the failure to pursue' administrative remedies." UDC Chairs Chapter, Am. Ass'n of Univ. Professors v. Bd. of Trustees of the University of the Dist. of Columbia, 56 F.3d 1469, 1475 (D.C. Cir. 1995) (quoting Randolph- Sheppard Vendors of Am. v. Weinberger, 795 F.2d 90, 105 (D.C. Cir. 1986)). Futility can serve as an exceptional circumstance (or "extraordinary" circumstance under § 7123(c)'s language) "where 'an agency has articulated a very clear position on the issue which it has demonstrated it would be unwilling to reconsider.'" Id. In contrast to the Second Circuit, in applying the futility exception the D.C. Circuit requires "'the certainty of an adverse decision' or indications that pursuit of administrative remedies would be 'clearly useless.'" Id. As did the Seventh Circuit, the D.C. Circuit has recognized that an agency may always alter or modify its position in response to persuasive arguments. Marine Mammal Conservancy, Inc. v. Dep't of Agric., 134 F.3d 409, 413 (D.C. Cir. 1998). Similarly, virtually all other courts of appeals have been reluctant to excuse the requirement to exhaust administrative remedies on the grounds of futility.[7] Contrary to Tinker AFB's suggestions, this Court should not adopt the Second Circuit's expansive application of the futility exception.[8] 2. The Futility Exception Does Not Apply in this Case Even if there are circumstances where "futility" would excuse a party's failure to raise a matter before the Authority, there is no basis on which to excuse Tinker AFB's failure to file exceptions in this case. Initially, Tinker AFB's clear intent to file exceptions, contained in its 22-page "Brief in Support of Exceptions to the Decision of the Administrative Law Judge" (App. 44-65), belies its claim that filing exceptions was futile. Tinker AFB simply failed to timely file its exceptions in accordance with the Authority's clear procedural requirements, explicitly set forth in the Authority's regulations and the ALJ's instructions. Tinker AFB's futility argument constitutes a post hoc attempt by Tinker AFB to escape the consequences of its conceded failure to abide by the Authority's regulations.[9] But in any event, there can be no showing of futility in this case. At issue in the administrative proceeding was whether Tinker AFB, in its role as employer, committed unfair labor practices by holding formal discussions with bargaining unit employees without notifying its employees' exclusive representative as required under § 7114(a)(2)(A) of the Statute. The formal discussions concerned the investigation of two discrimination complaints filed by other bargaining unit employees. Most of the numerous issues raised by Tinker AFB in its untimely-filed Exceptions Brief concerned matters as to which the Authority did not have any established precedent. For example, Tinker AFB contested whether the meetings at issue were mandatory and whether the OCI investigator at the meeting was a "representative of the agency." App. 46-47. The former issue is fact specific to this case, and the latter has never been decided by the Authority.[10] Therefore, Tinker AFB cannot viably claim that raising such issues before the Authority would have been futile. However, Tinker AFB ignores those issues over which filing exceptions would clearly not be futile and discusses only one issue that has an extended history of litigation, namely, whether discrimination complaints filed under the procedures of the EEOC constitute "grievances" within the scope of § 7114(a)(2)(A) of the Statute. Nevertheless, even with respect to this issue there is no reason to believe that the Authority's position was so well entrenched that filing exceptions would be futile. As noted by Tinker AFB, the Authority's view has been rejected by the Ninth Circuit and at the time of the ALJ's decision in the instant case, the Authority had not revisited the issue.[11] Tinker AFB's reliance on the Authority's subsequent decision in Department of the Air Force, 436th Airlift Wing, Dover Air Force Base, Dover, Delaware, 57 F.L.R.A. 304 (2001) (Dover AFB), petition for review filed, No. 01-1373 (D.C. Cir. Aug 24, 2001) is unavailing. First, the Dover AFB decision issued after the time limits for filing exceptions in the instant case expired and thus could not have been a factor in Tinker AFB's determination with respect to the futility of filing exceptions. Second, to the extent the Dover AFB decision is relevant herein, that decision shows that filing exceptions in the instant case would not have been futile. Significantly, in Dover AFB, the first decision issued on the subject after the Ninth Circuit decision in Luke AFB, Member (now Chairman) Cabaniss reconsidered her earlier views and dissented, stating she would adopt the holding of the Ninth Circuit reversing Luke AFB. 57 F.L.R.A. at 312. But in addition, the majority opinion, in light of the Ninth Circuit's decision "[took] the opportunity to thoroughly review [the] issue." Id. at 308. Such a thorough review serves the purposes of administrative exhaustion by allowing the Authority to "pass upon issues arising under the Statute, thereby bringing its expertise to bear on the resolution of those issues," even if the ultimate disposition remains unchanged. EEOC, 476 U.S. at 23; see also Greene v. Meese, 875 F.2d at 641. It is reasonable to assume that the Authority would have granted similar consideration to Tinker AFB's arguments had its exceptions been properly filed. Accordingly, Tinker's contention (Br. 23-24) that the Authority could not have provided any new guidance on the matter is disproven by the Authority's Dover AFB decision. For all these reasons, the Court should reject Tinker AFB's contention that filing exceptions would have been futile in this case.[12] Because Tinker AFB failed to raise any objections before the Authority, and there are no "extraordinary circumstances" to excuse this failure, this Court should decline to hear Tinker AFB's objections and dismiss the petition for review for lack of jurisdiction.[13] II. ASSUMING THE COURT'S JURISDICTION, THE AUTHORITY PROPERLY DETERMINED THAT MEETINGS BETWEEN REPRESENTATIVES OF TINKER AFB AND BARGAINING UNIT EMPLOYEES, TO DISCUSS A FORMAL DISCRIMINATION COMPLAINT, CONSTITUTED FORMAL DISCUSSIONS CONCERNING A GRIEVANCE PURSUANT TO § 7114(a)(2)(A) OF THE STATUTE Tinker AFB mistakenly contends that complaints of illegal discrimination filed pursuant to the statutory procedures administered by the EEOC are not "grievances" within the scope of § 7114(a)(2)(A) of the Statute. Essentially, Tinker AFB argues that the term "grievance" is limited to those complaints pursued through the parties' negotiated grievance procedure (NGP). As demonstrated below, this excessively narrow interpretation of the Statute's definition of "grievance" is inconsistent with the express terminology, legislative history, and purpose of the provisions of the Statute under consideration, as well as with the precedent of this Court. Rather, as the Authority has held, the term "grievance," as used in the Statute, refers to all employment-related complaints regardless of the forum in which they are pursued. Additionally, the confidentiality concerns expressed by Tinker AFB do not constitute legal impediments to a union's right to attend formal discussions concerning EEOC complaints. A. The Express Language of the Statute "In accordance with the first principle of statutory construction, this court begins its analysis with the plain language of [the statute]." Aramark Corp. v. NLRB, 179 F.3d 872, 878 (10th Cir. 1999). Section 7114(a) (2)(A) of the Statute broadly provides for union attendance at meetings concerning "any grievance." To ascertain the scope of the term "grievance" in § 7114(a)(2)(A), the first place to look is the Statute's express definition of "grievance" in § 7103(a)(9). See Gustafson v. Alloyd Co., 513 U.S. 561, 570 (1995) ("[I]dentical words used in different parts of the same act are intended to have the same meaning.") (internal quotation marks omitted); In Re Yochum, 89 F.3d 661, 666 (9th Cir. 1996) ("[I]n statutes that contain statutory definition sections, it is commonly understood that such definitions establish meaning wherever the terms appear in the same Act.") (citation omitted). The express language of § 7103(a)(9) provides no basis for limiting the definition of "grievance," as Tinker AFB argues here, so as to exclude complaints brought pursuant to EEOC statutory procedures. To the contrary, the Statute defines "grievance" as: any complaint- (A) by any employee concerning any matter relating to the employment of the employee[.] 5 U.S.C. § 7103(a)(9)(A) (emphasis added). Thus, by its plain terms, the Statute's broad definition of "grievance" encompasses any employment-related complaint, regardless of the forum in which the complaint may be pursued. See AFGE v. FLRA, 865 F.2d 1283, 1286 (D.C. Cir. 1989) ("It is understood that a grievance may arise either pursuant to a statutory procedure or a contractually administered process.") (citation omitted). Congress's repeated use of the modifier "any" underscores its intent that the definition be as inclusive as possible. In this case, the employees' complaints that they were victims of illegal discrimination by their employing agency are undeniably "complaint[s] by employee[s] concerning [a] matter relating to [their employment]," i.e., a "grievance" under the Statute's definition. The Statute could not be more clear. See Tele-Communications, Inc. v. Commissioner of Internal Revenue, 12 F.3d 1005, 1007 (10th Cir. 1993) (stating that where the language of the statutory definition is plain, the court's "'sole function is to apply it according to its terms.'") (quoting Jefferson-Pilot Corp. v. Commissioner of Internal Revenue Serv., 995 F.2d 530, 531 (4th Cir. 1993)). Contrary to Tinker AFB's arguments, § 7121 of the Statute provides no basis for limiting the definition of "grievance." Rather, § 7121 indicates specifically that a "grievance" includes both those complaints filed through the NGP and those filed through alternative statutory procedures. Subsections 7121(d) and (e) provide that "aggrieved employees" affected by illegal discrimination may raise these matters under either a statutory procedure or a NGP, but not both. 5 U.S.C. § 7121(d), (e). As the D.C. Circuit held with regard to these subsections: [I]f the term "grievance" referred only to disputes pursued through [NGPs], § 7121(d) and (e) would not be worded to require an "aggrieved employee" (emphasis supplied) to elect to pursue a remedy under either a negotiated procedure or a statutory procedure. An "aggrieved employee" - i.e., one with a grievance - would by definition necessarily pursue his grievance under a negotiated procedure. NTEU v. FLRA, 774 F.2d 1181, 1187 (D.C. Cir. 1985) (NTEU). Section 7121(a)'s reference to § 7121(d) and (e) in discussing the scope and exclusivity of NGPs also indicates that a "grievance" includes complaints filed under statutory procedures. Section 7121(a) provides that any collective bargaining agreement shall include procedures for the "settlement of grievances." These procedures, however, are not entirely exclusive. Section 7121(a) states in this regard that NGPs are the exclusive administrative procedures for resolving grievances that fall within the NGP's coverage, "[e]xcept as provided in subsections (d) [and] (e) . . . of this section." Accordingly, this section recognizes that discrimination complaints filed under statutory procedures are in fact "grievances" and provides that this class of grievances may be processed through either a contractual or a statutory procedure. See NTEU, 774 F.2d at 1187-88 ("[T]he statutory procedures referred to in § 7121(d) and (e) are also procedures for resolving grievances."). As will be discussed in section D below, this Court has specifically recognized that the term "grievance" encompasses statutory appeals as well as complaints processed under the NGP. Dep't of Veterans Affairs, Denver, Colo. v. FLRA, 3 F.3d 1386, 1390-91 (10th Cir. 1993) (Veterans Affairs). Finally, the "grievances" referred to in § 7114 must be broader than the grievances that are processed through the NGP pursuant to § 7121. Union presence is already assured throughout the NGP, pursuant to § 7121(b)(1)(C) (i) and (ii). If § 7114(a)(2)(A)'s "grievance" was limited to grievances processed through the NGP, then the formal discussion right set out in § 7114 would merely duplicate the rights provided in § 7121(b)(1)(C). Such a reading would render that portion of § 7114(a)(2)(A) superfluous. See Kawaauhau v. Geiger, 523 U.S. 57, 63 (1998) (The court is hesitant to adopt an interpretation of statute that renders superfluous portion of the same law.). B. The Legislative History of the Statute Although the Statute's language is perfectly clear, Tinker AFB contends (Br. 30) that the Statute's legislative history "contradicts" the Authority's broad interpretation of the term grievance. In so claiming, Tinker AFB misreads and misapplies the legislative history. To the contrary, the legislative history supports the Authority's position. The definition of grievance is discussed only in the Report of the House Committee on Post Office and Civil Service. There the committee stated that "[i]t should be noted that, although [§ 7103(a)(9)] is virtually all- inclusive in defining 'grievance,' section 7121 excludes certain grievances from being processed under a negotiated grievance procedure, thereby limiting the net effect of the term." H.R. Rep. No. 95-1403, at 40 (1978) (House Report); reprinted in Subcommittee on Postal Personnel and Modernization of the Committee on Post Office and Civil Service, 96th Congress, 1st Sess., Legislative History of the Federal Service Labor- Management Relations Statute, Title VII of the Civil Service Reform Act of 1978 (Legis. Hist.) at 686. This passage, however, provides no support for the proposition that EEOC complaints are not grievances within the scope of § 7114(a)(2)(A). First, although the passage indicates that § 7121 excludes some grievances from coverage under the NGP, the term "grievance" is not limited to matters covered under the NGP. See NTEU, 774 F.2d at 1188 (explaining that "[t]he only plausible reading" of this history is "that § 7121 ensures that some grievances cannot be processed under [an NGP]."). By recognizing that some grievances are excluded from the NGP, the passage makes clear that the term "grievance" should not be limited to matters covered by an NGP. Second, to the extent the passage supports a narrowed "effect" of the term "grievance," it does so with respect only to the NGP in § 7121, not regarding the formal discussion right provided for by § 7114. Rather, the passage contrasts the "all-inclusive" nature of the Statute's definition of "grievance" with the express limitations found in § 7121. Significantly, there are no limitations on the effect of the term "grievance" found in § 7114. Third, in referring to matters excluded from the NGP in § 7121, this passage could not have been referring to statutory discrimination complaints. In the first place, § 7121 does not exclude such complaints from the NGP. Instead, § 7121 provides only that for such complaints, the NGP is not the exclusive forum. However, Tinker AFB commits a more fundamental error in its reliance on this passage from the House Report. As reported out of committee, § 7121 of H.R. 11280 did not contain the choice of forum provisions relied upon by Tinker AFB. See House Report at 55-56; Legis. Hist. at 701-02. It is evident, therefore, that the House Report was referring to those matters actually excluded from the NGP by § 7121(c).[14] C. The Purpose of the Statute's Provisions Quoting from Internal Revenue Service, Fresno Service Center v. FLRA, 706 F.2d 1019, 1024-25 (9th Cir. 1983) (IRS, Fresno), Tinker AFB argues (Br. 34) that the purposes of § 7114(a)(2)(A) are not implicated here because the Union has "no such institutional role in the EEOC process." This perspective ignores important policies and purposes behind the Statute's formal discussion right. As the Authority has stated, the purpose of § 7114(a)(2)(A) is to "safeguard [the union's] interests and the interests of employees in the bargaining unit - - viewed in the context of a union's full range of responsibilities under the Statute." United States Dep't of Justice, Bureau of Prisons, Fed. Corr. Inst., Ray Brook, NY, 29 F.L.R.A. 584, 589 (1987) (FCI Ray Brook), aff'd sub nom. AFGE v. FLRA, 865 F.2d 1283, 1287 (D.C. Cir. 1989). Contrary to Tinker AFB's arguments, unions have an established interest in how allegations of discrimination are dealt with and resolved, regardless of the forum in which the employee chooses to lodge the complaint or whether the aggrieved employee seeks union assistance. NTEU, 774 F.2d at 1188; see also AFGE, Local 1345 v. FLRA, 793 F.2d 1360, 1363-64 (D.C. Cir. 1986) (recognizing a union's § 7114 interest in discipline afforded bargaining unit employees, even though the employees did not file a grievance or seek union representation concerning the discipline). In addition, the processing of an individual complaint through EEOC procedures can have an effect on the entire bargaining unit, which the union represents. Luke AFB, 54 F.L.R.A. at 731; see also Dep't of the Air Force, March Air Reserve Base, Calif., 57 F.L.R.A. 392, 393 (2001). In that regard, this Court has specifically recognized that, by providing formal discussion rights for discrete "grievances" and not just general personnel policies, the Statute "recognizes that the resolution of an individual employee complaint may have an impact on the rights of other unit employees." Veterans Affairs, 3 F.3d at 1390. Tinker AFB, on the other hand, takes too narrow a view of the union's role in the workplace, relegating unions to the role of mere grievance- processors. Thus, Tinker mistakenly contends that the union's role in formal discussions must be analogous to the representational role assumed in the NGP and that the Authority's interpretation of the Statute is intended to "engraft on these statutory procedures the entire panoply of rules governing the [NGP]." Br. 46. Such hyperbole is wholly unsubstantiated. The Authority has consistently recognized that "a union's institutional role with respect to statutory appeal matters is more restricted than its role in the negotiated grievance procedure." FCI, Ray Brook, 29 F.L.R.A. at 590. As relevant here, the Authority holds only that where all the elements of a formal discussion are met, the union has a right to attend a meeting regarding a bargaining unit employee's formal discrimination complaint. As the Authority specifically noted in FCI, Ray Brook, consideration must be given to any conflict between union rights under § 7114(a)(2)(A) and rights of other parties, including the aggrieved employee, under alternative statutory procedures. Id.; see also United States Immigration and Naturalization Serv., United States Border Patrol, El Paso, Tex., 47 F.L.R.A. 170, 184-187(1993) (holding that deposition of bargaining unit employee in connection with MSPB appeal was a formal discussion which the union was entitled to attend, but pursuant to MSPB regulations, active participation in the deposition was prohibited). Contrary to Tinker AFB's suggestion (Br. 46), the Authority has never held that a union should have the same rights in the EEOC procedure as it does in the NGP. D. This Court's Decision in Veterans Affairs This Court has squarely addressed the scope of the term grievance as used in § 7114 of the Statute and held that the term applies to statutory appeals as well as grievances pursued under an NGP. Veterans Affairs, 3 F.3d at 1390-91. In Veterans Affairs, the Court found that witness interviews with bargaining unit employees conducted by a representative of an employer agency in connection with an MSPB appeal were formal discussions concerning a "grievance" within the scope of § 7114(a)(2)(A).[15] 3 F.3d at 1390. In so holding, the Court was "greatly persuaded" by the reasoning of the D.C. Circuit in NTEU. Id. As discussed in section II.A. above, the court in NTEU extensively analyzed the language of the Statute and held that the statutory procedures for resolving employment complaints are procedures for resolving "grievances." Tinker AFB argues, however (Br. 41-44), that Veterans Affairs does not control the instant case because that case concerned appeals to the MSPB, not discrimination complaints filed with the EEOC. However, with regard to the meaning of "grievance" in § 7114(a)(2)(A) of the Statute, there is no relevant difference between MSPB procedures and EEOC procedures. That section refers to "any grievance," which in turn is defined in § 7103(a)(9) as "any complaint." Tinker AFB does not - and cannot -point to anything in the Statute to explain why "any complaint" includes MSPB procedures, but excludes EEOC procedures. In addition, many of Tinker AFB's claims made about EEOC procedures apply equally to MSPB procedures. For example, both processes are established and governed by statutes and regulations other than the Statute and the Authority's regulations. See 42 U.S.C. § 2000e-16, 29 C.F.R. Pt. 1614 (EEOC); 5 U.S.C. § 7701-7703, 5 C.F.R. Pt. 1201 (MSPB). Further, Tinker AFB argues (Br. 44) that EEO complaints may raise privacy issues; but discrimination matters, and thus the same type of privacy issues, may arise in mixed-case appeals to the MSPB. See 5 U.S.C. § 7702. Tinker AFB also incorrectly attributes significance (Br. 43-44) to the fact that the Authority and the MSPB were established as a result of the Civil Service Reform Act of 1978 and the EEOC was not. On the contrary, the EEOC's specific role in processing federal sector complaints was established concurrently with the passage of the Civil Service Reform Act.[16] Moreover, in creating the MSPB and the Authority, Congress expressly contemplated that these new agencies would interact with the EEOC. See 5 U.S.C. § 7702; 5 U.S.C. § 7121(d). As pertinent to § 7114(a)(2)(A) - which provides for union attendance at formal discussions concerning grievances - all three agencies address employees' work-related complaints. Finally, nothing in Veterans Affairs indicates that, with respect to § 7114(a)(2)(A), this Court would approach EEOC appeals any differently than those before the MSPB. Although the Veterans Affairs court distinguished IRS, Fresno "on the facts," it in no way indicated that it found the legal reasoning of IRS Fresno persuasive. 3 F.3d at 1391. To the contrary and as noted above, this Court specifically endorsed the reasoning of the D.C. Circuit in NTEU, where that court viewed its decision as conflicting with - not being distinguishable from - IRS, Fresno. See NTEU, 774 F.2d at 1188 ("To the extent [] the Ninth Circuit may have construed the term 'grievance' to include only disputes governed by [an NGP], we must disagree[.]") Further, to the extent this Court distinguished IRS, Fresno, it did so on the basis of the anonymity requirements of the precomplaint processes at issue in IRS, Fresno.[17] Veterans Affairs, 3 F.3d at 1391. No such considerations are present in this case, which concerns formal discrimination complaints.[18] E. Tinker AFB's Arguments Concerning the Confidentiality of EEOC Proceedings Similarly unpersuasive are Tinker AFB's arguments that EEOC confidentiality safeguards (Br. 35-41) and the Privacy Act are impediments to the union's right to attend EEOC proceedings. Significantly, Tinker AFB has pointed to no substantive law or regulation that prohibits union attendance or is otherwise inconsistent with § 7114(a)(2)(A) of the Statute.[19] Instead, Tinker AFB is saddled with the far weaker argument (see Br. 38) that the EEOC's regulations do not explicitly provide for the presence of a union representative at discussions between the employing agency and a complainant. However, such regulatory silence is insufficient to extinguish the union's right to attend provided in the Statute. See U.S. Immigration and Naturalization Serv. v. FLRA, 4 F.3d 268, 272-73 (4th Cir. 1993) (holding that the fact that MSPB regulations do not provide for official (paid) time for union representatives at its proceedings does not preclude such time where otherwise provided for in the Statute). Contrary to Tinker AFB's assertion (Br. 45), there was no need for Congress to "amend" Title VII of the Civil Rights Act to specifically permit union representation at § 7114(a)(2)(A) sessions involving EEOC proceedings, just as there was no need for Congress to amend the Inspector General Act to specifically permit union representation at § 7114(a)(2)(B) sessions involving Inspector General personnel, see generally NASA v. FLRA, 527 U.S. 229 (1999) (NASA).[20] In both instances, the Statute generally provides for - and nothing in any other law precludes - union presence. Further, with respect to the confidentiality of the EEOC process, Tinker AFB raises these issues only in general or hypothetical terms. Tinker AFB does not assert that such issues will arise in every case; indeed, none are present here.[21] Rather than adopting a rule uniformly prohibiting union attendance at such sessions, the better course is to permit the Authority to balance individual and institutional interests when such issues actually arise. The Authority has recently reaffirmed that where such conflicts are raised they will be considered, but stated that such issues "are more appropriately addressed in an actual case when squarely presented." Dover AFB, 57 F.L.R.A. at 310 (citing Navegar, Inc. v. United States, 103 F.3d 994, 998 (D.C. Cir. 1997)). In short, Tinker AFB's speculative confidentiality arguments cannot support a non-literal construction of § 7114 (a)(2)(A) that the Authority has refused to adopt. Cf. NASA, 527 U.S. at 243-44 ("[C]onfidentiality concerns are not weighty enough to justify a nontextual construction of § 7114(a)(2)(B) rejected by the Authority."). CONCLUSION The petition for review should be dismissed for lack of jurisdiction. Assuming the Court has jurisdiction, the petition should be denied on the merits. In either event, the Court should enforce the Authority's order. Respectfully submitted, DAVID M. SMITH Solicitor WILLIAM R. TOBEY Deputy Solicitor JAMES F. BLANDFORD Attorney Federal Labor Relations Authority 607 14th Street, N.W. Washington, D.C. 20424 (202) 482-6620 March 11, 2002 STATEMENT REGARDING ORAL ARGUMENT The Authority requests oral argument in this case. Although the jurisdictional issues raised in this case by themselves may not merit oral argument, the merits issues arise in a unique and complex statutory scheme and the circuit courts have split on closely-related issues. CERTIFICATION PURSUANT TO FRAP RULE 32 Pursuant to Federal Rule of Appellate Procedure 32, I certify that the attached brief is proportionately spaced, utilizes 14-point serif type, and contains 10, 817 words. ___________________________ James F. Blandford March 11, 2002 IN THE UNITED STATES COURT OF APPEALS FOR THE TENTH CIRCUIT _______________________________ TINKER AIR FORCE BASE, OKLAHOMA CITY AIR LOGISTICS CENTER, OKLAHOMA CITY, OKLAHOMA, Petitioner v. No. 01-9528 FEDERAL LABOR RELATIONS AUTHORITY, Respondent and AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO, LOCAL 916, Intervenor _______________________________ SERVICE LIST I certify that copies of the Brief for the Federal Labor Relations Authority and the Cross-Application for Enforcement of an Order of the Federal Labor Relations Authority have been served this day, by mail, upon the following: Robert D. McCallum, Jr. Mark D. Roth, General Counsel William Kanter Charles A. Hobbie, Deputy General Counsel Sandra Wien Simon AFGE, AFL-CIO Attorneys, Appellate Staff 80 F Street, N.W. Civil Division, Room 9146 Washington, D.C. 20001 601 D Street, N.W. Washington, D.C. 20530-0001 Kevin M. Grile, Assistant General Counsel AFGE, AFL-CIO 300 South Ashland Avenue Suite 302 Chicago, IL 60607 Jennifer Baker Paralegal Specialist March 11, 2002 ADDENDUM A 1. 5 U.S.C. § 7103(a)(9) A-1 2. 5 U.S.C. § 7105(a)(2) (G) A-2 3. 5 U.S.C. § 7114 A-3 4. 5 U.S.C. § 7116(a)(1), (8) A-5 5. 5 U.S.C. § 7119 A-6 6. 5 U.S.C. § 7121 A-8 7. 5 U.S.C. § 7123(b) A-11 8. 5 U.S.C. § 7702 A-12 9. 5 U.S.C. § 552a A-16 10. 29 U.S.C. § 160(e) A-24 11. 42 U.S.C. § 2000e-16(a), (c) A-25 12. 5 C.F.R. § 2423.34 A-26 13. 5 C.F.R. § 2423.41(a) A-27 14. 5 C.F.R. § 2429.24 A-28 15. 29 C.F.R. § 102.46 (b) (1978) A-30 16. 29 C.F.R. § 1614.108 A-31 § 7103. Definitions; application (a) For the purpose of this chapter- * * * * * * * (9) "grievance" means any complaint- (A) by any employee concerning any matter relating to the employment of the employee; (B) by any labor organization concerning any matter relating to the employment of any employee; or (C) by any employee, labor organization, or agency concerning- (i) the effect or interpretation, or a claim of breach, of a collective bargaining agreement; or (ii) any claimed violation, misinterpretation, or misapplication of any law, rule, or regulation affecting conditions of employment; * * * * * * * § 7105. Powers and duties of the Authority * * * * * * * (a)(2)The Authority shall, to the extent provided in this chapter and in accordance with regulations prescribed by the Authority- * * * * * * * (G) conduct hearings and resolve complaints of unfair labor practices under section 7118 of this title; * * * * * * * § 7114. Representation rights and duties (a)(1) A labor organization which has been accorded exclusive recognition is the exclusive representative of the employees in the unit it represents and is entitled to act for, and negotiate collective bargaining agreements covering, all employees in the unit. An exclusive representative is responsible for representing the interests of all employees in the unit it represents without discrimination and without regard to labor organization membership. (2) An exclusive representative of an appropriate unit in an agency shall be given the opportunity to be represented at- (A) any formal discussion between one or more representatives of the agency and one or more employees in the unit or their representatives concerning any grievance or any personnel policy or practices or other general condition of employment; or (B) any examination of an employee in the unit by a representative of the agency in connection with an investigation if- (i) the employee reasonably believes that the examination may result in disciplinary action against the employee; and (ii) the employee requests representation. (3) Each agency shall annually inform its employees of their rights under paragraph (2)(B) of this subsection. (4) Any agency and any exclusive representative in any appropriate unit in the agency, through appropriate representatives, shall meet and negotiate in good faith for the purposes of arriving at a collective bargaining agreement. In addition, the agency and the exclusive representative may determine appropriate techniques, consistent with the provisions of section 7119 of this title, to assist in any negotiation. (5) The rights of an exclusive representative under the provisions of this subsection shall not be construed to preclude an employee from- (A) being represented by an attorney or other representative, other than the exclusive representative, of the employee's own choosing in any grievance or appeal action; or (B) exercising grievance or appellate rights established by law, rule, or regulation; except in the case of grievance or appeal procedures negotiated under this chapter. (b) The duty of an agency and an exclusive representative to negotiate in good faith under subsection (a) of this section shall include the obligation- (1) to approach the negotiations with a sincere resolve to reach a collective bargaining agreement; (2) to be represented at the negotiations by duly authorized representatives prepared to discuss and negotiate on any condition of employment; (3) to meet at reasonable times and convenient places as frequently as may be necessary, and to avoid unnecessary delays; (4) in the case of an agency, to furnish to the exclusive representative involved, or its authorized representative, upon request and, to the extent not prohibited by law, data- (A) which is normally maintained by the agency in the regular course of business; (B) which is reasonably available and necessary for full and proper discussion, understanding, and negotiation of subjects within the scope of collective bargaining; and (C) which does not constitute guidance, advice, counsel, or training provided for management officials or supervisors, relating to collective bargaining; and (5) if agreement is reached, to execute on the request of any party to the negotiation a written document embodying the agreed terms, and to take such steps as are necessary to implement such agreement. (c)(1) An agreement between any agency and an exclusive representative shall be subject to approval by the head of the agency. (2) The head of the agency shall approve the agreement within 30 days from the date the agreement is executed if the agreement is in accordance with the provisions of this chapter and any other applicable law, rule, or regulation (unless the agency has granted an exception to the provision). (3) If the head of the agency does not approve or disapprove the agreement within the 30-day period, the agreement shall take effect and shall be binding on the agency and the exclusive representative subject to the provisions of this chapter and any other applicable law, rule, or regulation. (4) A local agreement subject to a national or other controlling agreement at a higher level shall be approved under the procedures of the controlling agreement or, if none, under regulations prescribed by the agency. § 7116. Unfair labor practices (a) For the purpose of this chapter, it shall be an unfair labor practice for an agency- (1) to interfere with, restrain, or coerce any employee in the exercise by the employee of any right under this chapter; * * * * * * * (8) to otherwise fail or refuse to comply with any provision of this chapter. * * * * * * * § 7119. Negotiation impasses; Federal Service Impasses Panel (a) The Federal Mediation and Conciliation Service shall provide services and assistance to agencies and exclusive representatives in the resolution of negotiation impasses. The Service shall determine under what circumstances and in what matter it shall provide services and assistance. (b) If voluntary arrangements, including the services of the Federal Mediation and Conciliation Service or any other third-party mediation, fail to resolve a negotiation impasse- (1) either party may request the Federal Service Impasses Panel to consider the matter, or (2) the parties may agree to adopt a procedure for binding arbitration of the negotiation impasses, but only if the procedure is approved by the Panel. (c)(1) The Federal Service Impasses Panel is an entity within the Authority, the function of which is to provide assistance in resolving negotiation impasses between agencies and exclusive representatives. (2) The Panel shall be composed of a Chairman and at least six other members, who shall be appointed by the President, solely on the basis of fitness to perform duties and functions involved, from among individuals who are familiar with Government operations and knowledgeable in labor- management relations. (3) Of the original members of the Panel, 2 members shall be appointed for a term of 1 year, 2 members shall be appointed for a term of 3 years, and the Chairman and the remaining members shall be appointed for a term of 5 years. Thereafter each member shall be appointed for a term of 5 years, except that an individual chosen to fill a vacancy shall be appointed for the unexpired term of the member replaced. Any member of the Panel may be removed by the President. (4) The Panel may appoint an Executive Director and any other individuals it may from time to time find necessary for the proper performance of its duties. Each member of the Panel who is not an employee (as defined in section 2105 of this title) is entitled to pay at a rate equal to the daily equivalent of the maximum annual rate of basic pay then currently paid under the General Schedule for each day he is engaged in the performance of official business of the Panel, including travel time, and is entitled to travel expenses as provided under section 5703 of this title. (5)(A) The Panel or its designee shall promptly investigate any impasse presented to it under subsection (b) of this section. The Panel shall consider the impasse and shall either- (i) recommend to the parties procedures for the resolution of the impasse; or (ii) assist the parties in resolving the impasse through whatever methods and procedures, including factfinding and recommendations, it may consider appropriate to accomplish the purpose of this section. (B) If the parties do not arrive at a settlement after assistance by the Panel under subparagraph (A) of this paragraph, the Panel may- (i) hold hearings; (ii) administer oaths, take the testimony or deposition of any person under oath, and issue subpoenas as provided in section 7132 of this title; and (iii) take whatever action is necessary and not inconsistent with this chapter to resolve the impasse. (C) Notice of any final action of the Panel under this section shall be promptly served upon the parties, and the action shall be binding on such parties during the term of the agreement, unless the parties agree otherwise. § 7121. Grievance procedures (a)(1) Except as provided in paragraph (2) of this subsection, any collective bargaining agreement shall provide procedures for the settlement of grievances, including questions of arbitrability. Except as provided in subsections (d), (e) and (g) of this section, the procedures shall be the exclusive administrative procedures for resolving grievances which fall within its coverage. (2) Any collective bargaining agreement may exclude any matter from the application of the grievance procedures which are provided for in the agreement. (b)(1) Any negotiated grievance procedure referred to in subsection (a) of this section shall- (A) be fair and simple, (B) provide for expeditious processing, and (C) include procedures that- (i) assure an exclusive representative the right, in its own behalf or on behalf of any employee in the unit represented by the exclusive representative, to present and process grievances; (ii) assure such an employee the right to present a grievance on the employee's own behalf, and assure the exclusive representative the right to be present during the grievance proceeding; and (iii) provide that any grievance not satisfactorily settled under the negotiated grievance procedure shall be subject to binding arbitration which may be invoked by either the exclusive representative or the agency. (2)(A) The provisions of a negotiated grievance procedure providing for binding arbitration in accordance with paragraph (1)(C)(iii) shall, if or to the extent that an alleged prohibited personnel practice is involved, allow the arbitrator to order- (i) a stay of any personnel action in a manner similar to the manner described in section 1221(c) with respect to the Merit Systems Protection Board; and (ii) the taking, by an agency, of any disciplinary action identified under section 1215(a)(3) that is otherwise within the authority of such agency to take. (B) Any employee who is the subject of any disciplinary action ordered under subparagraph (A)(ii) may appeal such action to the same extent and in the same manner as if the agency had taken the disciplinary action absent arbitration. (c) The preceding subsections of this section shall not apply with respect to any grievance concerning- (1) any claimed violation of subchapter III of chapter 73 of this title (relating to prohibited political activities); (2) retirement, life insurance, or health insurance; (3) a suspension or removal under section 7532 of this title; (4) any examination, certification, or appointment; or (5) the classification of any position which does not result in the reduction in grade or pay of an employee. (d) An aggrieved employee affected by a prohibited personnel practice under section 2302(b)(1) of this title which also falls under the coverage of the negotiated grievance procedure may raise the matter under a statutory procedure or the negotiated procedure, but not both. An employee shall be deemed to have exercised his option under this subsection to raise the matter under either a statutory procedure or the negotiated procedure at such time as the employee timely initiates an action under the applicable statutory procedure or timely files a grievance in writing, in accordance with the provisions of the parties' negotiated procedure, whichever event occurs first. Selection of the negotiated procedure in no manner prejudices the right of an aggrieved employee to request the Merit Systems Protection Board to review the final decision pursuant to section 7702 of this title in the case of any personnel action that could have been appealed to the Board, or, where applicable, to request the Equal Employment Opportunity Commission to review a final decision in any other matter involving a complaint of discrimination of the type prohibited by any law administered by the Equal Employment Opportunity Commission. (e)(1) Matters covered under sections 4303 and 7512 of this title which also fall within the coverage of the negotiated grievance procedure may, in the discretion of the aggrieved employee, be raised either under the appellate procedures of section 7701 of this title or under the negotiated grievance procedure, but not both. Similar matters which arise under other personnel systems applicable to employees covered by this chapter may, in the discretion of the aggrieved employee, be raised either under the appellate procedures, if any, applicable to those matters, or under the negotiated grievance procedure, but not both. An employee shall be deemed to have exercised his option under this subsection to raise a matter either under the applicable appellate procedures or under the negotiated grievance procedure at such time as the employee timely files a notice of appeal under the applicable appellate procedures or timely files a grievance in writing in accordance with the provisions of the parties' negotiated grievance procedure, whichever event occurs first. (2) In matters covered under sections 4303 and 7512 of this title which have been raised under the negotiated grievance procedure in accordance with this section, an arbitrator shall be governed by section 7701(c)(1) of this title, as applicable. (f) In matters covered under sections 4303 and 7512 of this title which have been raised under the negotiated grievance procedure in accordance with this section, section 7703 of this title pertaining to judicial review shall apply to the award of an arbitrator in the same manner and under the same conditions as if the matter had been decided by the Board. In matters similar to those covered under sections 4303 and 7512 of this title which arise under other personnel systems and which an aggrieved employee has raised under the negotiated grievance procedure, judicial review of an arbitrator's award may be obtained in the same manner and on the same basis as could be obtained of a final decision in such matters raised under applicable appellate procedures. (g)(1) This subsection applies with respect to a prohibited personnel practice other than a prohibited personnel practice to which subsection (d) applies. (2) An aggrieved employee affected by a prohibited personnel practice described in paragraph (1) may elect not more than one of the remedies described in paragraph (3) with respect thereto. For purposes of the preceding sentence, a determination as to whether a particular remedy has been elected shall be made as set forth under paragraph (4). (3) The remedies described in this paragraph are as follows: (A) An appeal to the Merit Systems Protection Board under section 7701. (B) A negotiated grievance procedure under this section. (C) Procedures for seeking corrective action under subchapters II and III of chapter 12. (4) For the purpose of this subsection, a person shall be considered to have elected- (A) the remedy described in paragraph (3)(A) if such person has timely filed a notice of appeal under the applicable appellate procedures; (B) the remedy described in paragraph (3)(B) if such person has timely filed a grievance in writing, in accordance with the provisions of the parties' negotiated procedure; or (C) the remedy described in paragraph (3)(C) if such person has sought corrective action from the Office of Special Counsel by making an allegation under section 1214(a)(1). (h) Settlements and awards under this chapter shall be subject to the limitations in section 5596(b)(4) of this title. § 7123. Judicial review; enforcement * * * * * * * (b) The Authority may petition any appropriate United States court of appeals for the enforcement of any order of the Authority and for appropriate temporary relief or restraining order. * * * * * * * § 7702. Actions involving discrimination (a)(1) Notwithstanding any other provision of law, and except as provided in paragraph (2) of this subsection, in the case of any employee or applicant for employment who - (A) has been affected by an action which the employee or applicant may appeal to the Merit Systems Protection Board, and (B) alleges that a basis for the action was discrimination prohibited by - (i) section 717 of the Civil Rights Act of 1964 (42 U.S.C. 2000e-16), (ii) section 6(d) of the Fair Labor Standards Act of 1938 (29 U.S.C. 206(d)), (iii) section 501 of the Rehabilitation Act of 1973 (29 U.S.C. 791), (iv) sections 12 and 15 of the Age Discrimination in Employment Act of 1967 (29 U.S.C. 631, 633a), or (v) any rule, regulation, or policy directive prescribed under any provision of law described in clauses (i) through (iv) of this subparagraph, the Board shall, within 120 days of the filing of the appeal, decide both the issue of discrimination and the appealable action in accordance with the Board's appellate procedures under section 7701 of this title and this section. (2) In any matter before an agency which involves - (A) any action described in paragraph (1)(A) of this subsection; and (B) any issue of discrimination prohibited under any provision of law described in paragraph (1)(B) of this subsection; the agency shall resolve such matter within 120 days. The decision of the agency in any such matter shall be a judicially reviewable action unless the employee appeals the matter to the Board under paragraph (1) of this subsection. (3) Any decision of the Board under paragraph (1) of this subsection shall be a judicially reviewable action as of - (A) the date of issuance of the decision if the employee or applicant does not file a petition with the Equal Employment Opportunity Commission under subsection (b)(1) of this section, or (B) the date the Commission determines not to consider the decision under subsection (b)(2) of this section. (b)(1) An employee or applicant may, within 30 days after notice of the decision of the Board under subsection (a)(1) of this section, petition the Commission to consider the decision. (2) The Commission shall, within 30 days after the date of the petition, determine whether to consider the decision. A determination of the Commission not to consider the decision may not be used as evidence with respect to any issue of discrimination in any judicial proceeding concerning that issue. (3) If the Commission makes a determination to consider the decision, the Commission shall, within 60 days after the date of the determination, consider the entire record of the proceedings of the Board and, on the basis of the evidentiary record before the Board, as supplemented under paragraph (4) of this subsection, either - (A) concur in the decision of the Board; or (B) issue in writing another decision which differs from the decision of the Board to the extent that the Commission finds that, as a matter of law - (i) the decision of the Board constitutes an incorrect interpretation of any provision of any law, rule, regulation, or policy directive referred to in subsection (a)(1)(B) of this section, or (ii) the decision involving such provision is not supported by the evidence in the record as a whole. (4) In considering any decision of the Board under this subsection, the Commission may refer the case to the Board, or provide on its own, for the taking (within such period as permits the Commission to make a decision within the 60-day period prescribed under this subsection) of additional evidence to the extent it considers necessary to supplement the record. (5)(A) If the Commission concurs pursuant to paragraph (3)(A) of this subsection in the decision of the Board, the decision of the Board shall be a judicially reviewable action. (B) If the Commission issues any decision under paragraph (3)(B) of this subsection, the Commission shall immediately refer the matter to the Board. (c) Within 30 days after receipt by the Board of the decision of the Commission under subsection (b)(5)(B) of this section, the Board shall consider the decision and - (1) concur and adopt in whole the decision of the Commission; or (2) to the extent that the Board finds that, as a matter of law, (A) the Commission decision constitutes an incorrect interpretation of any provision of any civil service law, rule, regulation or policy directive, or (B) the Commission decision involving such provision is not supported by the evidence in the record as a whole - (i) reaffirm the initial decision of the Board; or (ii) reaffirm the initial decision of the Board with such revisions as it determines appropriate. If the Board takes the action provided under paragraph (1), the decision of the Board shall be a judicially reviewable action. (d)(1) If the Board takes any action under subsection (c)(2) of this section, the matter shall be immediately certified to a special panel described in paragraph (6) of this subsection. Upon certification, the Board shall, within 5 days (excluding Saturdays, Sundays, and holidays), transmit to the special panel the administrative record in the proceeding, including - (A) the factual record compiled under this section, (B) the decisions issued by the Board and the Commission under this section, and (C) any transcript of oral arguments made, or legal briefs filed, before the Board or the Commission. (2)(A) The special panel shall, within 45 days after a matter has been certified to it, review the administrative record transmitted to it and, on the basis of the record, decide the issues in dispute and issue a final decision which shall be a judicially reviewable action. (B) The special panel shall give due deference to the respective expertise of the Board and Commission in making its decision. (3) The special panel shall refer its decision under paragraph (2) of this subsection to the Board and the Board shall order any agency to take any action appropriate to carry out the decision. (4) The special panel shall permit the employee or applicant who brought the complaint and the employing agency to appear before the panel to present oral arguments and to present written arguments with respect to the matter. (5) Upon application by the employee or applicant, the Commission may issue such interim relief as it determines appropriate to mitigate any exceptional hardship the employee or applicant might otherwise incur as a result of the certification of any matter under this subsection, except that the Commission may not stay, or order any agency to review on an interim basis, the action referred to in subsection (a)(1) of this section. (6)(A) Each time the Board takes any action under subsection (c)(2) of this section, a special panel shall be convened which shall consist of - (i) an individual appointed by the President, by and with the advice and consent of the Senate, to serve for a term of 6 years as chairman of the special panel each time it is convened; (ii) one member of the Board designated by the Chairman of the Board each time a panel is convened; and (iii) one member of the Commission designated by the Chairman of the Commission each time a panel is convened. The chairman of the special panel may be removed by the President only for inefficiency, neglect of duty, or malfeasance in office. (B) The chairman is entitled to pay at a rate equal to the maximum annual rate of basic pay payable under the General Schedule for each day he is engaged in the performance of official business on the work of the special panel. (C) The Board and the Commission shall provide such administrative assistance to the special panel as may be necessary and, to the extent practicable, shall equally divide the costs of providing the administrative assistance. (e)(1) Notwithstanding any other provision of law, if at any time after - (A) the 120th day following the filing of any matter described in subsection (a)(2) of this section with an agency, there is not judicially reviewable action under this section or an appeal under paragraph (2) of this subsection; (B) the 120th day following the filing of an appeal with the Board under subsection (a)(1) of this section, there is no judicially reviewable action (unless such action is not as the result of the filing of a petition by the employee under subsection (b)(1) of this section); or (C) the 180th day following the filing of a petition with the Equal Employment Opportunity Commission under subsection (b)(1) of this section, there is no final agency action under subsection (b), (c), or (d) of this section; an employee shall be entitled to file a civil action to the same extent and in the same manner as provided in section 717(c) of the Civil Rights Act of 1964 (42 U.S.C. 2000e-16(c)), section 15(c) of the Age Discrimination in Employment Act of 1967 (29 U.S.C. 633a(c)), or section 16(b) of the Fair Labor Standards Act of 1938 (29 U.S.C. 216(b)). (2) If, at any time after the 120th day following the filing of any matter described in subsection (a)(2) of this section with an agency, there is no judicially reviewable action, the employee may appeal the matter to the Board under subsection (a)(1) of this section. (3) Nothing in this section shall be construed to affect the right to trial de novo under any provision of law described in subsection (a)(1) of this section after a judicially reviewable action, including the decision of an agency under subsection (a)(2) of this section. (f) In any case in which an employee is required to file any action, appeal, or petition under this section and the employee timely files the action, appeal, or petition with an agency other than the agency with which the action, appeal, or petition is to be filed, the employee shall be treated as having timely filed the action, appeal, or petition as of the date it is filed with the proper agency. § 552. Public information; agency rules, opinions, orders, records, and proceedings (a) Each agency shall make available to the public information as follows: (1) Each agency shall separately state and currently publish in the Federal Register for the guidance of the public - (A) descriptions of its central and field organization and the established places at which, the employees (and in the case of a uniformed service, the members) from whom, and the methods whereby, the public may obtain information, make submittals or requests, or obtain decisions; (B) statements of the general course and method by which its functions are channeled and determined, including the nature and requirements of all formal and informal procedures available; (C) rules of procedure, descriptions of forms available or the places at which forms may be obtained, and instructions as to the scope and contents of all papers, reports, or examinations; (D) substantive rules of general applicability adopted as authorized by law, and statements of general policy or interpretations of general applicability formulated and adopted by the agency; and (E) each amendment, revision, or repeal of the foregoing. Except to the extent that a person has actual and timely notice of the terms thereof, a person may not in any manner be required to resort to, or be adversely affected by, a matter required to be published in the Federal Register and not so published. For the purpose of this paragraph, matter reasonably available to the class of persons affected thereby is deemed published in the Federal Register when incorporated by reference therein with the approval of the Director of the Federal Register. (2) Each agency, in accordance with published rules, shall make available for public inspection and copying - (A) final opinions, including concurring and dissenting opinions, as well as orders, made in the adjudication of cases; (B) those statements of policy and interpretations which have been adopted by the agency and are not published in the Federal Register; (C) administrative staff manuals and instructions to staff that affect a member of the public; (D) copies of all records, regardless of form or format, which have been released to any person under paragraph (3) and which, because of the nature of their subject matter, the agency determines have become or are likely to become the subject of subsequent requests for substantially the same records; and (E) a general index of the records referred to under subparagraph (D); unless the materials are promptly published and copies offered for sale. For records created on or after November 1, 1996, within one year after such date, each agency shall make such records available, including by computer telecommunications or, if computer telecommunications means have not been established by the agency, by other electronic means. To the extent required to prevent a clearly unwarranted invasion of personal privacy, an agency may delete identifying details when it makes available or publishes an opinion, statement of policy, interpretation, staff manual, instruction, or copies of records referred to in subparagraph (D). However, in each case the justification for the deletion shall be explained fully in writing, and the extent of such deletion shall be indicated on the portion of the record which is made available or published, unless including that indication would harm an interest protected by the exemption in subsection (b) under which the deletion is made. If technically feasible, the extent of the deletion shall be indicated at the place in the record where the deletion was made. Each agency shall also maintain and make available for public inspection and copying current indexes providing identifying information for the public as to any matter issued, adopted, or promulgated after July 4, 1967, and required by this paragraph to be made available or published. Each agency shall promptly publish, quarterly or more frequently, and distribute (by sale or otherwise) copies of each index or supplements thereto unless it determines by order published in the Federal Register that the publication would be unnecessary and impracticable, in which case the agency shall nonetheless provide copies of such index on request at a cost not to exceed the direct cost of duplication. Each agency shall make the index referred to in subparagraph (E) available by computer telecommunications by December 31, 1999. A final order, opinion, statement of policy, interpretation, or staff manual or instruction that affects a member of the public may be relied on, used, or cited as precedent by an agency against a party other than an agency only if - (i) it has been indexed and either made available or published as provided by this paragraph; or (ii) the party has actual and timely notice of the terms thereof. (3)(A) Except with respect to the records made available under paragraphs (1) and (2) of this subsection, each agency, upon any request for records which (i) reasonably describes such records and (ii) is made in accordance with published rules stating the time, place, fees (if any), and procedures to be followed, shall make the records promptly available to any person. (B) In making any record available to a person under this paragraph, an agency shall provide the record in any form or format requested by the person if the record is readily reproducible by the agency in that form or format. Each agency shall make reasonable efforts to maintain its records in forms or formats that are reproducible for purposes of this section. (C) In responding under this paragraph to a request for records, an agency shall make reasonable efforts to search for the records in electronic form or format, except when such efforts would significantly interfere with the operation of the agency's automated information system. (D) For purposes of this paragraph, the term ''search'' means to review, manually or by automated means, agency records for the purpose of locating those records which are responsive to a request. (4)(A)(i) In order to carry out the provisions of this section, each agency shall promulgate regulations, pursuant to notice and receipt of public comment, specifying the schedule of fees applicable to the processing of requests under this section and establishing procedures and guidelines for determining when such fees should be waived or reduced. Such schedule shall conform to the guidelines which shall be promulgated, pursuant to notice and receipt of public comment, by the Director of the Office of Management and Budget and which shall provide for a uniform schedule of fees for all agencies. (ii) Such agency regulations shall provide that - (I) fees shall be limited to reasonable standard charges for document search, duplication, and review, when records are requested for commercial use; (II) fees shall be limited to reasonable standard charges for document duplication when records are not sought for commercial use and the request is made by an educational or noncommercial scientific institution, whose purpose is scholarly or scientific research; or a representative of the news media; and (III) for any request not described in (I) or (II), fees shall be limited to reasonable standard charges for document search and duplication. (iii) Documents shall be furnished without any charge or at a charge reduced below the fees established under clause (ii) if disclosure of the information is in the public interest because it is likely to contribute significantly to public understanding of the operations or activities of the government and is not primarily in the commercial interest of the requester. (iv) Fee schedules shall provide for the recovery of only the direct costs of search, duplication, or review. Review costs shall include only the direct costs incurred during the initial examination of a document for the purposes of determining whether the documents must be disclosed under this section and for the purposes of withholding any portions exempt from disclosure under this section. Review costs may not include any costs incurred in resolving issues of law or policy that may be raised in the course of processing a request under this section. No fee may be charged by any agency under this section - (I) if the costs of routine collection and processing of the fee are likely to equal or exceed the amount of the fee; or (II) for any request described in clause (ii) (II) or (III) of this subparagraph for the first two hours of search time or for the first one hundred pages of duplication. (v) No agency may require advance payment of any fee unless the requester has previously failed to pay fees in a timely fashion, or the agency has determined that the fee will exceed $250. (vi) Nothing in this subparagraph shall supersede fees chargeable under a statute specifically providing for setting the level of fees for particular types of records. (vii) In any action by a requester regarding the waiver of fees under this section, the court shall determine the matter de novo: Provided, That the court's review of the matter shall be limited to the record before the agency. (B) On complaint, the district court of the United States in the district in which the complainant resides, or has his principal place of business, or in which the agency records are situated, or in the District of Columbia, has jurisdiction to enjoin the agency from withholding agency records and to order the production of any agency records improperly withheld from the complainant. In such a case the court shall determine the matter de novo, and may examine the contents of such agency records in camera to determine whether such records or any part thereof shall be withheld under any of the exemptions set forth in subsection (b) of this section, and the burden is on the agency to sustain its action. In addition to any other matters to which a court accords substantial weight, a court shall accord substantial weight to an affidavit of an agency concerning the agency's determination as to technical feasibility under paragraph (2)(C) and subsection (b) and reproducibility under paragraph (3)(B). (C) Notwithstanding any other provision of law, the defendant shall serve an answer or otherwise plead to any complaint made under this subsection within thirty days after service upon the defendant of the pleading in which such complaint is made, unless the court otherwise directs for good cause shown. ((D) Repealed. Pub. L. 98-620, title IV, Sec. 402(2), Nov. 8, 1984, 98 Stat. 3357.) (E) The court may assess against the United States reasonable attorney fees and other litigation costs reasonably incurred in any case under this section in which the complainant has substantially prevailed. (F) Whenever the court orders the production of any agency records improperly withheld from the complainant and assesses against the United States reasonable attorney fees and other litigation costs, and the court additionally issues a written finding that the circumstances surrounding the withholding raise questions whether agency personnel acted arbitrarily or capriciously with respect to the withholding, the Special Counsel shall promptly initiate a proceeding to determine whether disciplinary action is warranted against the officer or employee who was primarily responsible for the withholding. The Special Counsel, after investigation and consideration of the evidence submitted, shall submit his findings and recommendations to the administrative authority of the agency concerned and shall send copies of the findings and recommendations to the officer or employee or his representative. The administrative authority shall take the corrective action that the Special Counsel recommends. (G) In the event of noncompliance with the order of the court, the district court may punish for contempt the responsible employee, and in the case of a uniformed service, the responsible member. (5) Each agency having more than one member shall maintain and make available for public inspection a record of the final votes of each member in every agency proceeding. (6)(A) Each agency, upon any request for records made under paragraph (1), (2), or (3) of this subsection, shall - (i) determine within 20 days (excepting Saturdays, Sundays, and legal public holidays) after the receipt of any such request whether to comply with such request and shall immediately notify the person making such request of such determination and the reasons therefor, and of the right of such person to appeal to the head of the agency any adverse determination; and (ii) make a determination with respect to any appeal within twenty days (excepting Saturdays, Sundays, and legal public holidays) after the receipt of such appeal. If on appeal the denial of the request for records is in whole or in part upheld, the agency shall notify the person making such request of the provisions for judicial review of that determination under paragraph (4) of this subsection. (B)(i) In unusual circumstances as specified in this subparagraph, the time limits prescribed in either clause (i) or clause (ii) of subparagraph (A) may be extended by written notice to the person making such request setting forth the unusual circumstances for such extension and the date on which a determination is expected to be dispatched. No such notice shall specify a date that would result in an extension for more than ten working days, except as provided in clause (ii) of this subparagraph. (ii) With respect to a request for which a written notice under clause (i) extends the time limits prescribed under clause (i) of subparagraph (A), the agency shall notify the person making the request if the request cannot be processed within the time limit specified in that clause and shall provide the person an opportunity to limit the scope of the request so that it may be processed within that time limit or an opportunity to arrange with the agency an alternative time frame for processing the request or a modified request. Refusal by the person to reasonably modify the request or arrange such an alternative time frame shall be considered as a factor in determining whether exceptional circumstances exist for purposes of subparagraph (C). (iii) As used in this subparagraph, ''unusual circumstances'' means, but only to the extent reasonably necessary to the proper processing of the particular requests - (I) the need to search for and collect the requested records from field facilities or other establishments that are separate from the office processing the request; (II) the need to search for, collect, and appropriately examine a voluminous amount of separate and distinct records which are demanded in a single request; or (III) the need for consultation, which shall be conducted with all practicable speed, with another agency having a substantial interest in the determination of the request or among two or more components of the agency having substantial subject-matter interest therein. (iv) Each agency may promulgate regulations, pursuant to notice and receipt of public comment, providing for the aggregation of certain requests by the same requestor, or by a group of requestors acting in concert, if the agency reasonably believes that such requests actually constitute a single request, which would otherwise satisfy the unusual circumstances specified in this subparagraph, and the requests involve clearly related matters. Multiple requests involving unrelated matters shall not be aggregated. (C)(i) Any person making a request to any agency for records under paragraph (1), (2), or (3) of this subsection shall be deemed to have exhausted his administrative remedies with respect to such request if the agency fails to comply with the applicable time limit provisions of this paragraph. If the Government can show exceptional circumstances exist and that the agency is exercising due diligence in responding to the request, the court may retain jurisdiction and allow the agency additional time to complete its review of the records. Upon any determination by an agency to comply with a request for records, the records shall be made promptly available to such person making such request. Any notification of denial of any request for records under this subsection shall set forth the names and titles or positions of each person responsible for the denial of such request. (ii) For purposes of this subparagraph, the term ''exceptional circumstances'' does not include a delay that results from a predictable agency workload of requests under this section, unless the agency demonstrates reasonable progress in reducing its backlog of pending requests. (iii) Refusal by a person to reasonably modify the scope of a request or arrange an alternative time frame for processing a request (or a modified request) under clause (ii) after being given an opportunity to do so by the agency to whom the person made the request shall be considered as a factor in determining whether exceptional circumstances exist for purposes of this subparagraph. (D)(i) Each agency may promulgate regulations, pursuant to notice and receipt of public comment, providing for multitrack processing of requests for records based on the amount of work or time (or both) involved in processing requests. (ii) Regulations under this subparagraph may provide a person making a request that does not qualify for the fastest multitrack processing an opportunity to limit the scope of the request in order to qualify for faster processing. (iii) This subparagraph shall not be considered to affect the requirement under subparagraph (C) to exercise due diligence. (E)(i) Each agency shall promulgate regulations, pursuant to notice and receipt of public comment, providing for expedited processing of requests for records - (I) in cases in which the person requesting the records demonstrates a compelling need; and (II) in other cases determined by the agency. (ii) Notwithstanding clause (i), regulations under this subparagraph must ensure - (I) that a determination of whether to provide expedited processing shall be made, and notice of the determination shall be provided to the person making the request, within 10 days after the date of the request; and (II) expeditious consideration of administrative appeals of such determinations of whether to provide expedited processing. (iii) An agency shall process as soon as practicable any request for records to which the agency has granted expedited processing under this subparagraph. Agency action to deny or affirm denial of a request for expedited processing pursuant to this subparagraph, and failure by an agency to respond in a timely manner to such a request shall be subject to judicial review under paragraph (4), except that the judicial review shall be based on the record before the agency at the time of the determination. (iv) A district court of the United States shall not have jurisdiction to review an agency denial of expedited processing of a request for records after the agency has provided a complete response to the request. (v) For purposes of this subparagraph, the term ''compelling need'' means - (I) that a failure to obtain requested records on an expedited basis under this paragraph could reasonably be expected to pose an imminent threat to the life or physical safety of an individual; or (II) with respect to a request made by a person primarily engaged in disseminating information, urgency to inform the public concerning actual or alleged Federal Government activity. (vi) A demonstration of a compelling need by a person making a request for expedited processing shall be made by a statement certified by such person to be true and correct to the best of such person's knowledge and belief. (F) In denying a request for records, in whole or in part, an agency shall make a reasonable effort to estimate the volume of any requested matter the provision of which is denied, and shall provide any such estimate to the person making the request, unless providing such estimate would harm an interest protected by the exemption in subsection (b) pursuant to which the denial is made. §160. Prevention of unfair labor practices * * * * * * * (e) Petition to court for enforcement of order; proceedings; review of judgment The Board shall have power to petition any court of appeals of the United States, or if all the courts of appeals to which application may be made are in vacation, any district court of the United States, within any circuit or district, respectively, wherein the unfair labor practice in question occurred or wherein such person resides or transacts business, for the enforcement of such order and for appropriate temporary relief or restraining order, and shall file in the court the record in the proceedings, as provided in section 2112 of title 28. Upon the filing of such petition, the court shall cause notice thereof to be served upon such person, and thereupon shall have jurisdiction of the proceeding and of the question determined therein, and shall have power to grant such temporary relief or restraining order as it deems just and proper, and to make and enter a decree enforcing, modifying and enforcing as so modified, or setting aside in whole or in part the order of the Board. No objection that has not been urged before the Board, its member, agent, or agency, shall be considered by the court, unless the failure or neglect to urge such objection shall be excused because of extraordinary circumstances. The findings of the Board with respect to questions of fact if supported by substantial evidence on the record considered as a whole shall be conclusive. If either party shall apply to the court for leave to adduce additional evidence and shall show to the satisfaction of the court that such additional evidence is material and that there were reasonable grounds for the failure to adduce such evidence in the hearing before the Board, its member, agent, or agency, the court may order such additional evidence to be taken before the Board, its member, agent, or agency, and to be made a part of the record. The Board may modify its findings as to the facts, or make new findings by reason of additional evidence so taken and filed, and it shall file such modified or new findings, which findings with respect to questions of fact if supported by substantial evidence on the record considered as a whole shall be conclusive, and shall file its recommendations, if any, for the modification or setting aside of its original order. Upon the filing of the record with it the jurisdiction of the court shall be exclusive and its judgment and decree shall be final, except that the same shall be subject to review by the appropriate United States court of appeals if application was made to the district court as hereinabove provided, and by the Supreme Court of the United States upon writ of certiorari or certification as provided in section 1254 of title 28. * * * * * * * § 2000e-16. Employment by Federal Government (a) Discriminatory practices prohibited; employees or applicants for employment subject to coverage All personnel actions affecting employees or applicants for employment (except with regard to aliens employed outside the limits of the United States) in military departments as defined in section 102 of title 5, in executive agencies as defined in section 105 of title 5 (including employees and applicants for employment who are paid from nonappropriated funds), in the United States Postal Service and the Postal Rate Commission, in those units of the Government of the District of Columbia having positions in the competitive service, and in those units of the judicial branch of the Federal Government having positions in the competitive service, in the Smithsonian Institution, and in the Government Printing Office, the General Accounting Office, and the Library of Congress shall be made free from any discrimination based on race, color, religion, sex, or national origin. * * * * * * * (e) Government agency or official not relieved of responsibility to assure nondiscrimination in employment or equal employment opportunity Nothing contained in this Act shall relieve any Government agency or official of its or his primary responsibility to assure nondiscrimination in employment as required by the Constitution and statutes or of its or his responsibilities under Executive Order 11478 relating to equal employment opportunity in the Federal Government. § 2423.34 Decision and record. (a) Recommended decision. Except when bench decisions are issued pursuant to § 2423.31(d), the Administrative Law Judge shall prepare a written decision expeditiously in every case. All written decisions shall be served in accordance with § 2429.12 of this subchapter. The decision shall set forth: (1) A statement of the issues; (2) Relevant findings of fact; (3) Conclusions of law and reasons therefor; (4) Credibility determinations as necessary; and (5) A recommended disposition or order. (b) Transmittal to Authority. The Judge shall transmit the decision and record to the Authority. The record shall include the charge, complaint, service sheet, answer, motions, rulings, orders, prehearing conference summaries, stipulations, objections, depositions, interrogatories, exhibits, documentary evidence, basis for any sanctions ruling, official transcript of the hearing, briefs, and any other filings or submissions made by the parties. §§ 2423.35-2423.39 [Reserved] § 2423.41 Action by the Authority; compliance with Authority decisions and orders. [Code of Federal Regulations] [Title 5, Volume 3] [Revised as of January 1, 2002] From the U.S. Government Printing Office via GPO Access [CITE: 5CFR2423.41] [Page 404] TITLE 5--ADMINISTRATIVE PERSONNEL CHAPTER XIV--FEDERAL LABOR RELATIONS AUTHORITY, GENERAL COUNSEL OF THE FEDERAL LABOR RELATIONS AUTHORITY AND FEDERAL SERVICE IMPASSES PANEL PART 2423--UNFAIR LABOR PRACTICE PROCEEDINGS--Table of Contents Subpart D--Post-Transmission and Exceptions to Authority Procedures Sec. 2423.41 Action by the Authority; compliance with Authority decisions and orders. (a) Authority decision; no exceptions filed. In the absence of the filing of exceptions within the time limits established in Sec. 2423.40, the findings, conclusions, and recommendations in the decision of the Administrative Law Judge shall, without precedential significance, become the findings, conclusions, decision and order of the Authority, and all objections and exceptions to the rulings and decision of the Administrative Law Judge shall be deemed waived for all purposes. Failure to comply with any filing requirement established in Sec. 2423.40 may result in the information furnished being disregarded. * * * * * * * [Code of Federal Regulations] [Title 5, Volume 3] [Revised as of January 1, 2002] From the U.S. Government Printing Office via GPO Access [CITE: 5CFR2429.24] [Page 425-426] TITLE 5--ADMINISTRATIVE PERSONNEL CHAPTER XIV--FEDERAL LABOR RELATIONS AUTHORITY, GENERAL COUNSEL OF THE FEDERAL LABOR RELATIONS AUTHORITY AND FEDERAL SERVICE IMPASSES PANEL PART 2429--MISCELLANEOUS AND GENERAL REQUIREMENTS--Table of Contents Subpart B--General Requirements Sec. 2429.24 Place and method of filing; acknowledgement. (a) All documents filed or required to be filed with the Authority pursuant to this subchapter shall be filed with the Director, Case Control Office, Federal Labor Relations Authority, Docket Room, suite 415, 607 14th Street, NW., Washington, DC 20424-0001 (telephone: FTS or Commercial (202) 482-6540) between 9 a.m. and 5 p.m., Monday through Friday (except Federal holidays). Documents hand-delivered for filing must be presented in the Docket Room not later than 5 p.m. to be accepted for filing on that day. (b) A document submitted to the General Counsel pursuant to this subchapter shall be filed with the General Counsel at the address set forth in the appendix. (c) A document submitted to a Regional Director pursuant to this subchapter shall be filed with the appropriate regional office, as set forth in the appendix. (d) A document submitted to an Administrative Law Judge pursuant to this subchapter shall be filed with the appropriate Administrative Law Judge, as set forth in the appendix. (e) All documents filed pursuant to this section shall be filed in person, by commercial delivery, by first-class mail, or by certified mail. Provided, however, that where facsimile equipment is available, motions; information pertaining to prehearing disclosure, conferences, orders, or hearing dates, times, and locations; information pertaining to subpoenas; and other similar matters may be filed by facsimile transmission, provided that the entire individual filing by the party does not exceed 10 pages in total length, with normal margins and font sizes. (f) All matters filed under paragraphs (a), (b), (c) and (d) of this section shall be printed, typed, or otherwise legibly duplicated: Carbon copies of typewritten matter will be accepted if they are clearly legible. (g) Documents in any proceedings under this subchapter, including correspondence, shall show the title of the proceeding and the case number, if any. (h) The original of each document required to be filed under this subchapter shall be signed by the party or by an attorney or representative of record for the party, or by an officer of the party, and shall contain the address and telephone number of the person signing it. (i) A return postal receipt may serve as acknowledgement of receipt by the Authority, General Counsel, Administrative Law Judge, Regional Director, or Hearing Officer, as appropriate. The receiving officer will otherwise acknowledge receipt of documents filed only when the filing party so requests [[Page 426]] and includes an extra copy of the document or its transmittal letter which the receiving office will date stamp upon receipt and return. If return is to be made by mail, the filing party shall include a self- addressed, stamped envelope for the purpose. [45 FR 3516, Jan. 17, 1980, as amended at 51 FR 45752, Dec. 22, 1986; 58 FR 53105, Oct. 14, 1993; 62 FR 40924, July 31, 1997] [Code of Federal Regulations] [Title 29, Volume 2, Parts 100 to 499] [Revised as of July 1, 1998] From the U.S. Government Printing Office via GPO Access [CITE: 29CFR102.46] [Page 50-51] TITLE 29--LABOR CHAPTER I--NATIONAL LABOR RELATIONS BOARD PART 102--RULES AND REGULATIONS, SERIES 8--Table of Contents Subpart B--Procedure Under Section 10 (a) to (i) of the Act for the Prevention of Unfair Labor Practices \1\ Sec. 102.46 Exceptions, cross-exceptions, briefs, answering briefs; time for filing; where to file; service on the parties; extension of time; effect of failure to include matter in exceptions; reply briefs; oral arguments. * * * * * * * (b)(1) Each exception (i) shall set forth specifically the questions of procedure, fact, law, or policy to which exception is taken; (ii) shall identify that part of the administrative law judge's decision to which objection is made; (iii) shall designate by precise citation of page the portions of the record relied on; and (iv) shall concisely state the grounds for the exception. If a supporting brief is filed the exceptions document shall not contain any argument or citation of authority in support of the exceptions, but such matters shall be set forth only in the brief. If no supporting brief is filed the exceptions document shall also include the citation of authorities and argument in support of the exceptions, in which event the exceptions document shall be subject to the 50-page limit as for briefs set forth in Sec. 102.46(j). (2) Any exception to a ruling, finding, conclusion, or recommendation which is not specifically urged shall be deemed to have been waived. Any exception which fails to comply with the foregoing requirements may be disregarded. * * * * * * * [Code of Federal Regulations] [Title 29, Volume 4] [Revised as of July 1, 2001] From the U.S. Government Printing Office via GPO Access [CITE: 29CFR1614.108] [Page 261-262] TITLE 29--LABOR CHAPTER XIV--EQUAL EMPLOYMENT OPPORTUNITY COMMISSION PART 1614--FEDERAL SECTOR EQUAL EMPLOYMENT OPPORTUNITY--Table of Contents Subpart A--Agency Program To Promote Equal Employment Opportunity Sec. 1614.108 Investigation of complaints. (a) The investigation of complaints shall be conducted by the agency against which the complaint has been filed. (b) In accordance with instructions contained in Commission Management Directives, the agency shall develop an impartial and appropriate factual record upon which to make findings on the claims raised by the written complaint. An appropriate factual record is one that allows a reasonable fact finder to draw conclusions as to whether discrimination occurred. Agencies may use an exchange of letters or memoranda, interrogatories, investigations, fact-finding conferences or a any other fact-finding methods that efficiently and thoroughly address the matters at issue. Agencies are encouraged to incorporate alternative dispute resolution techniques into their investigative efforts in order to promote early resolution of complaints. (c) The procedures in paragraphs (c) (1) through (3) of this section apply to the investigation of complaints: (1) The complainant, the agency, and any employee of a Federal agency shall produce such documentary and testimonial evidence as the investigator deems necessary. [[Page 262]] (2) Investigators are authorized to administer oaths. Statements of witnesses shall be made under oath or affirmation or, alternatively, by written statement under penalty of perjury. (3) When the complainant, or the agency against which a complaint is filed, or its employees fail without good cause shown to respond fully and in timely fashion to requests for documents, records, comparative data, statistics, affidavits, or the attendance of witness(es), the investigator may note in the investigative record that the decisionmaker should, or the Commission on appeal may, in appropriate circumstances: (i) Draw an adverse inference that the requested information, or the testimony of the requested witness, would have reflected unfavorably on the party refusing to provide the requested information; (ii) Consider the matters to which the requested information or testimony pertains to be established in favor of the opposing party; (iii) Exclude other evidence offered by the party failing to produce the requested information or witness; (iv) Issue a decision fully or partially in favor of the opposing party; or (v) Take such other actions as it deems appropriate. (d) Any investigation will be conducted by investigators with appropriate security clearances. The Commission will, upon request, supply the agency with the name of an investigator with appropriate security clearances. (e) The agency shall complete its investigation within 180 days of the date of filing of an individual complaint or within the time period contained in an order from the Office of Federal Operations on an appeal from a dismissal pursuant to Sec. 1614.107. By written agreement within those time periods, the complainant and the respondent agency may voluntarily extend the time period for not more than an additional 90 days. The agency may unilaterally extend the time period or any period of extension for not more than 30 days where it must sanitize a complaint file that may contain information classified pursuant to Exec. Order No. 12356, or successor orders, as secret in the interest of national defense or foreign policy, provided the investigating agency notifies the parties of the extension. (f) Within 180 days from the filing of the complaint, or where a complaint was amended, within the earlier of 180 days after the last amendment to the complaint or 360 days after the filing of the original complaint, within the time period contained in an order from the Office of Federal Operations on an appeal from a dismissal, or within any period of extension provided for in paragraph (e) of this section, the agency shall provide the complainant with a copy of the investigative file, and shall notify the complainant that, within 30 days of receipt of the investigative file, the complainant has the right to request a hearing and decision from an administrative judge or may request an immediate final decision pursuant to Sec. 1614.110 from the agency with which the complaint was filed. (g) Where the complainant has received the notice required in paragraph (f) of this section or at any time after 180 days have elapsed from the filing of the complaint, the complainant may request a hearing by submitting a written request for a hearing directly to the EEOC office indicated in the agency's acknowledgment letter. The complainant shall send a copy of the request for a hearing to the agency EEO office. Within 15 days of receipt of the request for a hearing, the agency shall provide a copy of the complaint file to EEOC and, if not previously provided, to the complainant. [57 FR 12646, Apr. 10, 1992, as amended at 64 FR 37656, July 12, 1999] [1] Pertinent statutory and regulatory provisions are set forth in the attached Addendum to this brief. [2] The Authority is filing a cross-application for enforcement of its order contemporaneously with the filing of this brief. [3] Tinker AFB does not contest these findings before the Court. [4] The ALJ acknowledged that Luke AFB had been reversed by the Ninth Circuit, but noted that the Authority had not signaled whether it intended to acquiesce in that court's interpretation of the Statute. App. 23 n.12. [5] The Authority filed a motion to dismiss Tinker AFB's petition for review for lack of jurisdiction. Tinker AFB responded, and the Authority replied. By order dated November 26, 2001, the Court referred the jurisdictional question to the panel assigned to hear the petition on the merits. [6] Section 2429.24 specifically requires that all documents "shall be filed with the Director, Case Control Office[.]" [7] See, e.g., Van Dorn Plastic Mach. Co. v. NLRB, 881 F.2d 302, 306 (6th Cir. 1989) (declining to excuse a litigant from the exhaustion requirements of 29 U.S.C. § 160(e) simply because the NLRB was unlikely to have reacted favorably); Diaz v. United Agric. Employee Welfare Benefit Plan & Trust, 50 F.3d 1478, 1485 (9th Cir. 1995) (concluding that "bare assertions of futility are insufficient to bring a claim within the futility exception, which is designed to avoid the need to pursue an administrative review that is demonstrably doomed to fail") (citations omitted); Thetford Properties v. United States Dep't of Housing & Urban Dev., 907 F.2d 445, 450 (4th Cir. 1990) ("Absent a clear showing that an administrative agency has taken a hard and fast position that makes an adverse ruling a certainty, a litigant's prognostication that he is likely to fail before an agency is not a sufficient reason to excuse the lack of exhaustion."); Springer v. Wal-Mart Assocs. Group Health Plan, 908 F.2d 897, 901 (11th Cir. 1990) (finding that "'bare allegations of futility are no substitute for the "clear and positive" showing of futility . . . required before suspending the exhaustion requirement.'") (quoting Makar v. Health Care Corp., 872 F.2d 80, 83 (4th Cir. 1989)); Keystone Roofing Co. v. OSHRC, 539 F.2d 960, 964 (3rd Cir. 1976) (explaining that "probable futility cannot be equated with extraordinary circumstances"). [8] In addition, the Second Circuit's decision in Dep't of Justice was arguably an unwarranted expansion of its own precedent. The court in Dep't of Justice relied on its previous decision in Overseas Education Association, Inc. v. FLRA, 961 F.2d 36, 38 (2d Cir. 1992) (OEA), where it found futility to exist only where there was a "formidable wall of precedent." See Dep't of Justice, 137 F.3d at 687-88. When the Second Circuit reviewed the Authority's "excessive interference" test in OEA, the test had been used by the Authority for six years and had been affirmed by the courts of appeals that reviewed it. OEA, 961 F.2d at 38. In Dep't of Justice, however, the court cited only two cases where the Authority had applied the rule at issue, 137 F.3d at 688, and it acknowledged a split in the circuit courts over the matter, id. at 690. [9] Tinker AFB conclusively responds (Br. 22 n.4) by saying that the fact that it attempted to file exceptions "should not be held against it." This response not only lacks support, but ignores the inconsistency between Tinker AFB's current contention that filing exceptions would be futile and its previous intent to file multiple exceptions. As will be discussed below, the exceptions involved matters on which the Authority had not previously ruled. [10] With respect to the latter, see Luke AFB, 54 F.L.R.A. at 720, 730 (Although the agency raised the question of whether OCI investigator was a representative of the agency, it was unnecessary for the Authority to decide the issue.). [11] Contrary to Tinker AFB's contentions (Br. 22 ), the ALJ's comments in the instant case did not clearly signal that nothing would change by filing exceptions on this issue with the Authority. The ALJ's speculation as to the Authority's future action has no binding effect on the Authority. In any event, and regardless of the ALJ's opinions regarding what the Authority might do, the ALJ was required to apply the law as currently interpreted by the Authority. See, e.g., Dep't of the Air Force, Scott Air Force Base, Illinois, 51 F.L.R.A. 675, 702 (1995). [12] In a footnote (Br. 26 n.6), Tinker AFB makes the outrageous claim that the fact that the Authority declined to waive its procedural regulations in this case "evidences how opposed the [Authority] is to [Tinker AFB]'s position in this case." Although lacking any evidentiary or precedential support that the Authority's Director of Case Control's procedural determination was influenced by a desire by the Authority to avoid the merits of the case, Tinker AFB nonetheless attacks the integrity of the Authority's adjudicatory processes. This line of argument must be rejected as wholly without foundation. [13] In urging that the Court lacks jurisdiction, the Authority has relied on well- established principles of administrative law regarding both an agency's right to establish its procedures and the requirement of administrative exhaustion. Any weakening of these principles would affect not only the Authority's processes, but those of other administrative agencies as well. See NLRB v. FLRA, 2 F.3d 1190, 1199 (D.C. Cir. 1993) (Buckley, J., dissenting) (noting "lack of an institutional perspective" of the Board in arguing that the court should excuse the Board's failure to exhaust the Authority's processes as required by § 7123(c), because it would be possible for a future party to use the same argument to circumvent the Board's own adjudicatory authority under §10(e) of the NLRA); see also Dep't of Justice, 137 F.3d at 687 (noting that Department of Justice's futility argument is at variance with what the Department normally demands of private litigants regarding exhaustion before administrative agencies). [14] Section 7121(c) excludes certain subjects such as retirement and insurance benefits, and removals for reasons of national security from NGPs. A substantially identical provision was found at § 7121(d) of H.R. 11280. House Report at 56; Legis. Hist. at 702. [15] In this regard, the facts of VA Denver and those in the instant case are strikingly similar. Both involved interviews by agency representatives with fact witnesses other than the aggrieved employee conducted in connection with statutory appeals processes. [16] Prior to January 1, 1979, federal sector discrimination complaints were processed by the United States Civil Service Commission. See Executive Order 12,106, 3 C.F.R. 586 (1978), reprinted in 42 U.S.C. § 2000e-4 note at 555. The Authority and the MSPB were also established effective January 1, 1979. See Executive Order 12,107, 3 C.F.R. 791 (1978), reprinted in 5 U.S.C. § 1101 note at 676-680. [17] Central to the court's holding in IRS, Fresno was the particular character of "informal" precomplaint EEO proceedings. Under the governing regulations an employee who believes he or she has been discriminated against must consult with an EEO counselor who will informally investigate the matter, seek to resolve the matter on an "informal basis," and otherwise counsel the aggrieved employee. IRS, Fresno, 706 F.2d at 1021 n. 2 (setting out 29 C.F.R. §1613.213(a) (1982)). Further, the regulations require that the counselor not reveal the identity of the aggrieved employee until and unless the employee files a formal complaint. Id. [18] Hence, this case is also distinguishable from IRS, Fresno on that ground. To the extent, however, that Tinker AFB relies on IRS, Fresno, for the broader proposition that all EEOC complaints are not grievances, for the reasons discussed above, we contend that IRS, Fresno was wrongly decided. In that regard, we note that not only has the D.C. Circuit expressed its disagreement with IRS, Fresno, but a subsequent panel of the Ninth Circuit did so as well. See Dep't of Veterans Affairs Med. Ctr., Long Beach, Cal. v. FLRA, 16 F.3d 1526, 1534 n.4 (9th Cir. 1994). [19] In that regard, Tinker AFB states (Br. 44) that this case "present[s] issues under the Privacy Act of 1974, 5 U.S.C. § 552a," but does not explain how the Privacy Act is implicated in this case. [20] Section 7114(a)(2)(B) of the Statute provides for union representation in investigatory interviews where the employee reasonably fears disciplinary action will result. [21] In this case, the complainants designated the Union as their representative.