National Treasury v. Federal Labor Relations Authority ( 2006 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
NATIONAL TREASURY EMPLOYEES 
UNION (NTEU),
Petitioner,
OFFICE OF THE COMPTROLLER OF THE No. 04-72237

CURRENCY, FLRA No. 59
Intervenor, FLRA No. 148
v. OPINION
FEDERAL LABOR RELATIONS
AUTHORITY,
Respondent.

On Petition for Review of a Decision
and Order of the
Federal Labor Relations Authority
Argued and Submitted
December 9, 2005—San Francisco, California
Filed January 23, 2006
Before: Alex Kozinski and William A. Fletcher,
Circuit Judges, and H. Russel Holland,*
Senior District Judge.
Opinion by Judge Holland
*The Honorable H. Russel Holland, Senior District Judge for the Dis-
trict of Alaska, sitting by designation.
919
NATIONAL TREASURY EMPLOYEES UNION v. FLRA 921
COUNSEL
Kerry L. Adams, Associate General Counsel, Nat. Treasury
Employees Union, Washington, D.C., argued the cause for the
petitioner; Gregory O’Duden, General Counsel, and Barbara
A. Atkin, Deputy General Counsel, Nat. Treasury Employees
Union, Washington, D.C., were on the briefs.
Ellen M. Warwick, Counsel, Office of the Comptroller of the
Currency, Washington, D.C., argued the cause for the interve-
nor; Julie L. Williams, First Senior Deputy Comptroller and
Chief Counsel, Daniel P. Stipano, Counsel, and David C.
Kane, Counsel, Office of the Comptroller of the Currency,
Washington, D.C., were on the brief.
James F. Blandford, Federal Labor Relations Authority,
Washington, D.C., argued the cause for the respondent; David
M. Smith, Solicitor, and William R. Tobey, Deputy Solicitor,
Federal Labor Relations Authority, Washington, D.C., were
on the brief.
OPINION
HOLLAND, District Judge:
The National Treasury Employees Union (“Union”) peti-
tions for review of the Federal Labor Relations Authority’s
(“FLRA”) decision that a proposal regarding geographically-
based pay (“geo pay”) was outside the Comptroller of the
Currency’s duty to bargain. Federal agencies are generally
922 NATIONAL TREASURY EMPLOYEES UNION v. FLRA
required to negotiate in good faith with a representative of
their employees over conditions of employment. See Fort
Stewart Sch. v. FLRA, 495 U.S. 641, 644 (1990). Wages and
other monetary compensation are considered a condition of
employment. Id. at 645-50. However, there is no duty to
negotiate if “Congress intended the agency in question to
enjoy complete discretion over the particular matter at issue.”
Am. Fed’n of Gov’t Employees, Local 3295 v. FLRA, 46 F.3d
73, 74 (D.C. Cir. 1995) (“AFGE”). The FLRA concluded that
12 U.S.C. §§ 481 and 482 give the Comptroller sole and
exclusive discretion to set the compensation for employees of
the Office of the Comptroller of the Currency (“OCC”), and
thus the Comptroller had no duty to bargain over the geo pay
proposal. We have jurisdiction pursuant to 5 U.S.C.
§ 7123(a), and we affirm the FLRA’s decision.
Review of decisions of the FLRA are governed by 5 U.S.C.
§ 706, which provides that agency action shall be set aside if
it is “arbitrary, capricious, an abuse of discretion, or otherwise
not in accordance with law.” 5 U.S.C. § 706(2)(A); see also
Dep’t of Veterans Affairs Med. Ctr. v. FLRA, 16 F.3d 1526,
1529 (9th Cir. 1994). “The FLRA is entitled to considerable
deference when it is applying the general provisions of the
Federal Service Labor-Management Relations Statute to the
complexities of federal labor relations.” United States Dep’t
of Interior v. FLRA, 279 F.3d 762, 765 (9th Cir. 2002). How-
ever, because the FLRA does not administer § 481 or § 482,
no deference is owed to its interpretation of these statutes. See
id.
[1] Determination of the extent of the Comptroller’s discre-
tion over compensation issues is a question of statutory inter-
pretation. We begin our analysis by considering the language
of the statute itself. United States v. Carter, 421 F.3d 909, 911
(9th Cir. 2005). “Where the statutory language is clear and
consistent with the statutory scheme at issue . . . the judicial
inquiry is at an end.” Botosan v. Paul McNally Realty, 216
F.3d 827, 831 (9th Cir. 2000).
NATIONAL TREASURY EMPLOYEES UNION v. FLRA 923
Section 481 provides, in pertinent part, that bank examiners
and other necessary staff
shall be employed by the Comptroller of the Cur-
rency with the approval of the Secretary of Treasury;
the employment and compensation of examiners,
chief examiners, reviewing examiners, assistant
examiners, and of the other employees of the office
of the Comptroller of the Currency whose compen-
sation is and shall be paid from assessments on
banks or affiliates thereof or from other fees or
charges imposed pursuant to this section shall be
without regard to the provisions of other laws appli-
cable to officers or employees of the United States.
12 U.S.C. § 481 (emphasis added).
[2] Section 481 is not ambiguous. It gives the Comptroller
the authority to set compensation for OCC employees “with-
out regard to the provisions of other laws.” This type of lan-
guage has consistently been interpreted by both the courts and
the FLRA as giving an agency unfettered discretion over the
matter at hand. See, e.g., AFGE, 46 F.3d at 76; United States
Dep’t of Def. Nat’l Imagery and Mapping Agency, 57
F.L.R.A. 837, 844 n.10 (2002). That the Comptroller’s com-
pensation decisions are subject to approval by the Secretary
of Treasury does not affect this interpretation. The agency
involved here, for purposes of collective bargaining, is the
Department of Treasury, and the fact that the Secretary of that
department had to approve the Comptroller’s compensation
decisions does not mean that the agency’s discretion over
compensation issues was something less than sole and exclu-
sive. See 5 U.S.C. §§ 101, 105, 7103(a)(3), 7114(a)(4). In
short, § 481 gives the relevant agency—the Department of
Treasury—sole and exclusive authority over compensation
issues for OCC employees.
Section 482, as amended in 1989 and 1994, provides, in
pertinent part, that
924 NATIONAL TREASURY EMPLOYEES UNION v. FLRA
[n]otwithstanding any of the provisions of section
481 of this title or section 301(f)(1) of Title 31 to the
contrary, the Comptroller of the Currency shall fix
the compensation and number of, and appoint and
direct, all employees of the Office of the Comptrol-
ler of the Currency. Rates of basic pay for all
employees of the Office may be set and adjusted by
the Comptroller without regard to the provisions of
chapter 51 or subchapter III of chapter 53 of Title 5.
The Comptroller may provide additional compensa-
tion and benefits to employees of the Office if the
same type of compensation or benefits are then being
provided by any other Federal bank regulatory
agency or, if not then being provided, could be pro-
vided by such an agency under applicable provisions
of law, rule, or regulation. In setting and adjusting
the total amount of compensation and benefits for
employees of the Office, the Comptroller shall con-
sult with, and seek to maintain comparability with,
other Federal banking agencies.
12 U.S.C. § 482. As explained below, § 482 is not ambiguous
either, and none of the provisions of § 482 conflict with or
limit the unfettered discretion given the agency in § 481.
[3] First, § 482 provides that the Comptroller shall fix the
compensation and number of all OCC employees and appoint
and direct the activities of these employees, notwithstanding
any provision of § 481 to the contrary. This provision rein-
forces that the Comptroller’s authority is sole and exclusive
by eliminating the need for Treasury Secretary’s approval of
the Comptroller’s compensation decisions. Second, § 482
authorizes the Comptroller to set rates of basic pay without
regard to the wage schedules and other pay provisions found
in Title 5 of the United States Code, authority that the Comp-
troller already had pursuant to § 481. The reference to Title 5
neither conflicts with nor constitutes a partial repeal of § 481
as would be necessary if Congress had intended this reference
NATIONAL TREASURY EMPLOYEES UNION v. FLRA 925
to limit the discretion given the Comptroller in § 481. The ref-
erence to Title 5, coupled with the removal of Treasury
approval, is properly deemed a reaffirmation of the Comptrol-
ler’s discretion expressed in § 481, the full scope of which, at
least as regards wages, the Secretary of Treasury appears to
not have always given complete effect.
Finally, § 482 directs the Comptroller to seek to maintain
pay comparability with the other federal banking agencies by
specifying that the Comptroller may provide additional com-
pensation and benefits to OCC employees similar to that
being provided by any other federal bank regulatory agency.
Although the Comptroller must consult with other banking
agencies and consider what they are providing in terms of
compensation, the Comptroller is not required to match, nor
is he limited by, what other agencies are providing their
employees in terms of compensation and benefits. Wage par-
ity is an aspiration but not a directive that constrains the
Comptroller’s sole discretion.
[4] We conclude that, pursuant to §§ 481 and 482, the
Comptroller has sole and exclusive discretion over compensa-
tion issues for OCC employees. Thus, the geo pay proposal
was outside the Comptroller’s duty to bargain. The FLRA’s
conclusion to that effect was neither arbitrary nor capricious.
See 5 U.S.C. § 706(2)(A).
PETITION DENIED.