184 F.3d 889 (D.C. Cir. 1999)
Georgia State Chapter Association of Civilian Technicians, Petitionerv.Federal Labor Relations Authority, Respondent
No. 98-1452
United States Court of AppealsFOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued May 5, 1999Decided August 3, 1999

On Petition for Review of an Order of the Federal Labor Relations Authority
Daniel M. Schember argued the cause and filed the briefs  for petitioner.
Judith A. Hagley, Attorney, Federal Labor Relations Authority, argued the cause for respondent.  With her on the  brief were David M. Smith, Solicitor, and William R. Tobey,  Deputy Solicitor.
Before:  Ginsburg, Sentelle, and Randolph, Circuit  Judges.
Opinion for the Court filed by Circuit Judge Randolph.
Randolph, Circuit Judge:


1
Let us begin very simply. The  petitioner has raised several objections to a decision of the  Federal Labor Relations Authority.  No one made these  objections, or any arguments in support of them, during the  administrative proceedings.  The FLRA's opinion does not  address them.  Congress, in 5 U.S.C. § 7123(c), decreed:  "No  objection that has not been urged before the Authority ...  shall be considered by the court, unless the failure or neglect  to urge the objection is excused because of extraordinary  circumstances."  The particular "failure or neglect" encountered here cannot be excused.  There are no extraordinary  circumstances.  And so the petition for judicial review must  be denied.  See EEOC v. FLRA, 476 U.S. 19, 22-23 (1986);NLRB v. Seven-Up Bottling Co. of Miami, 344 U.S. 344, 350  (1953).


2
Now for the details.  Petitioner is the Georgia State Chapter of the Association of Civilian Technicians, a federal labor  union.  It has a collective bargaining agreement with the  Office of the Adjutant General, Georgia Department of Defense.  Section 5.2a(3) of the agreement gives the union, or  rather its members, a total of 2200 hours of paid administrative leave1--otherwise known as "official time"--for certain  specified purposes, one of which is to visit elected representatives regarding legislation that would affect union members.2In August 1995, the union requested hours of official time for eleven of its representatives to meet with Members of Congress to discuss "matters of interest to the Union and the  employees it represents."  See Georgia State Chapter Ass'n  of Civilian Technicians, 54 F.L.R.A. 654, 656 (1998).  The  Georgia Office of the Adjutant General refused on the basis  that the contractual leave provision, to the extent it concerned  lobbying of Congress, was unlawful and hence unenforceable. See id.


3
After management reiterated its position, the union filed an  unfair labor practice charge.  The FLRA's General Counsel  issued a complaint alleging that this arm of the Defense  Department, by repudiating a provision of the collective bargaining agreement, had violated § 7116(a)(1) and (5) of the  Federal Service Labor-Management Relations Act.3  See  Georgia State Chapter, 54 F.L.R.A. at 654. During the ensuing administrative proceedings, the General Counsel contended that § 7102 grants employees the right to act in a representational capacity and, in that capacity, to present the views  of their union to Congress.4  See Georgia State Chapter, 54  F.L.R.A. at 660.  The Act also requires that union representatives "be granted official time" in an amount set by contract.  See 5 U.S.C. § 7131(d).  In an anticipatory defense,  the General Counsel maintained that a criminal provision--18  U.S.C. § 1913--did not render the administrative leave provision illegal.  The criminal provision forbids using appropriated funds "directly or indirectly to pay for any ... device,  intended or designed to influence in any manner a Member of Congress ... [regarding] any legislation or appropriation,"  "in the absence of express authorization by Congress."  18  U.S.C. § 1913.  Section 7102(1), the General Counsel contended, is such an express congressional authorization.  See  Georgia State Chapter, 54 F.L.R.A. at 660.


4
Although agreeing with the General Counsel about 18  U.S.C. § 1913, the FLRA held the disputed portion of the  contractual leave provision unenforceable on another ground. Paying wages to union representatives for their lobbying of  Congress, the FLRA ruled, contradicted § 8015 of the Department of Defense Appropriations Act, 1996.  See Georgia  State Chapter, 54 F.L.R.A. at 665-66;  see also Department of  Defense Appropriations Act, 1996, Pub. L. No. 104-61,  § 8015, 109 Stat. 636, 654 (1995).  Section 8015 provides that  "[n]one of the funds made available by this Act shall be used  in any way, directly or indirectly, to influence congressional  action on any legislation or appropriation matters pending  before the Congress."  See Pub. L. No. 104-61, § 8015, 109  Stat. 654.  In so ruling, the FLRA adopted the contention of  the Defense Department in the brief it filed with the agency.


5
The union tells us that the FLRA erred, because the  Appropriations Act could not repeal the provisions of the  Federal Service Labor-Management Relations Act by implication;  because the FLRA "overlooked its obligation to reconcile the statutes";  because the FLRA's interpretation raises a question under the First Amendment to the Constitution; and because the labor statute is more specific than the  Appropriations Act.  We can say with confidence that none of  these objections, none of these arguments, was ever urged  until the case arrived in this court.  As we wrote in the  opening paragraph, that failure and neglect precludes us from  passing on the union's contentions.  We do not have to deal  with any possible distinctions between, on the one hand,  preserving an "objection"--the term used in 5 U.S.C.  § 7123(c), and in its NLRB counterpart, 29 U.S.C. § 160(e)-and, on the other hand, preserving an "issue," or a "claim," or  an "argument."  Compare Seven-Up Bottling Co. of Miami,  344 U.S. at 350;  Kamen v. Kemper Fin. Servs., Inc., 500 U.S.  90, 99 (1991);  Yee v. City of Escondido, 503 U.S. 519, 534-35 (1992);  Parsippany Hotel Management Co. v. NLRB, 99  F.3d 413, 417-18 (D.C. Cir. 1996).  The fact of the matter is  that nothing was put before the FLRA to counter the Defense Department's contention that the Appropriations Act  rendered the contractual provision unenforceable.  It is not  enough that the FLRA's General Counsel brought to the  agency's attention the maxim that a specific statute prevails  over a general one.  This was said to explain why the criminal  provision (18 U.S.C. § 1913) did not override the provisions in  the Federal Service Labor-Management Relations Act.  See  Georgia State Chapter, 54 F.L.R.A. at 660.  Whether the  maxim should be applied to the Appropriations Act is another  question entirely, and one on which the General Counsel was  silent.  See, e.g., United States Dep't of Commerce v. FLRA,  7 F.3d 243, 245 (D.C. Cir. 1993).


6
Section 7123(c) permits us to pass on an objection even  though it has not been urged before the FLRA if "extraordinary circumstances" warrant excusing the failure.  The union  points out that the FLRA requires simultaneous briefing. See 5 C.F.R. § 2429.1(a) (1997), removed and reserved, Unfair  Labor Practice Proceedings:  Miscellaneous and General Requirements, 62 Fed. Reg. 40,911, 40,922 (July 31, 1997).  The  Defense Department's arguments regarding the 1996 Appropriations Act, the union tells us, were unanticipated.  Be that  as it may, leave to file a reply brief setting forth the arguments in opposition was never sought.  See 5 C.F.R.  § 2429.26(a);  see Garment Workers v. Quality Mfg. Co., 420  U.S. 276, 281 n.3 (1975);  NLRB v. FLRA, 2 F.3d 1190, 1195  (D.C. Cir. 1993).  Nor did the union request reconsideration  of the FLRA's decision.  See 5 C.F.R. § 2429.17.


7
It is true that we have considered and ruled on objections  first raised on judicial review when the FLRA rested its  decision on a ground neither party had argued, so long as a  request for reconsideration appeared clearly doomed.  See  United States Dep't of Commerce, 7 F.3d at 245;  United  States Dep't of Interior v. FLRA, 969 F.2d 1158, 1161 (D.C.  Cir. 1992).  The situation here is not comparable.  In the first  place, the FLRA did not sua sponte raise the Appropriations  Act;  the Defense Department argued the point to the agency.


8
Second, it is not so plain that a request for reconsideration  would have been futile.  Shortly before issuing its opinion in  this case, the FLRA handed down two decisions--Office of  the Adjutant General, New Hampshire National Guard, 54  F.L.R.A. 301, 310-11 (1998), and Headquarters, National  Guard Bureau Washington, D.C. Nevada Air National  Guard, Reno, Nevada, 54 F.L.R.A. 316, 325 (1998). The union  describes these cases as identical to its case, and states that  in both, the FLRA rejected the arguments the union wishes  us to consider.  But the factual setting of those cases was not  the same as this one and, in any event, the FLRA's opinions  do not even deal with several of the arguments contained in  the union's brief in this court.  We have no doubt that these  precedents would have put the union in the position of waging  an uphill battle in getting the FLRA to reconsider, but "the  requirement that a litigant present such a petition is ordinarily not excused simply 'because the [FLRA] was unlikely to  have granted it.' "  Compare NLRB v. FLRA, 2 F.3d at 1196.


9
The petition for review is denied.



Notes:


1
 Administrative leave is "time granted an employee by an agency  to perform representational functions" and is considered hours of  work.  See 5 C.F.R. § 551.424(b).


2
 Section 5.2a states:  "The Labor Organization is authorized two  thousand two hundred (2200) hours of administrative leave for the  following purposes:  ... (3) Represent Technicians by visiting elected representatives in support or opposition to pending or desired  legislation which would impact the working conditions of Technicians represented by [the Association of Civilian Technicians]."


3
 5 U.S.C. § 7116(a) provides that "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;  ... (5) to refuse to consult or negotiate in good faith with  a labor organization as required by this chapter."


4
 5 U.S.C. § 7102(1) states that employees shall have the right to  form, join or assist any labor organization and that "such right  includes the right--to act for a labor organization in the capacity of  a representative and the right, in that capacity, to present the views  of the labor organization to heads of agencies and other officials of  the executive branch of the Government, the Congress, or other  appropriate authorities."


