US SUPREME COURT DECISIONS

During contract negotiations with the Equal Employment Opportunity Commission (EEOC), respondent American Federation of Government Employees (AFGE) submitted a proposal that would require the EEOC "to comply with OMB Circular A-76 and other applicable laws and regulations concerning contracting out" by federal agencies. The EEOC refused to bargain over the proposal on the ground that it was nonnegotiable under Title VII of the Civil Service Reform Act of 1978 (Act). On AFGE's petition for review, respondent Federal Labor Relations Authority (FLRA) rejected the EEOC's contentions that (1) because AFGE's proposed contract provision concerned contracting out, the proposal was inconsistent with the Act's management rights clause, which protects an agency's authority, "in accordance with applicable laws," to make determinations as to contracting out, and (2) the Circular itself forbade negotiation over the proposal. The Court of Appeals affirmed.

Held: The writ of certiorari previously granted by this Court is dismissed as improvidently granted. The EEOC did not assert before either the FLRA or the Court of Appeals its contentions here that (1) the Circular is not an "applicable la[w]" within the meaning of the Act's management rights clause, and therefore AFGE's proposal, by requiring compliance with the Circular, would intrude on management's reserved rights, and (2) any alleged violation of the Circular would not be grievable absent AFGE's proposal, because the Circular is not a "law, rule, or regulation" within the meaning of the Act's definition of "grievance." Nor had the EEOC presented to the FLRA the argument that the Circular is a "Government-wide rule or regulation" for purposes of the Act's provision that excludes such rules or regulations from the scope of the duty to bargain. The Act provides that an objection that has not been urged before the FLRA shall not be considered on judicial review unless the failure to urge the objection is excused because of extraordinary circumstances. Such statutory bar is not "waived" simply because the FLRA fails to invoke it. Since the EEOC failed to excuse its failure to raise before the FLRA its principal objections to AFGE's proposal, this Court will not consider them. Moreover, even if the EEOC's failure to raise its chanrobles.com-red

Page 476 U. S. 20

"grievability" contention before the FLRA were to be excused on the ground that the FLRA, sua sponte, had injected the grievability issue into the proceedings, it did not excuse the EEOC's failure to raise its claim in the Court of Appeals. This Court's normal practice, applicable here, is to refrain from addressing issues not raised in the Court of Appeals.

Certiorari dismissed. Reported below: 240 U.S.App.D.C. 218, 744 F.2d 842.