269 F.3d 1119 (D.C. Cir. 2001)
Association of Civilian Technicians, Tony Kempenich Memorial Chapter 21, Petitionerv.Federal Labor Relations Authority, Respondent
No. 01-1044
United States Court of Appeals  FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued October 11, 2001Decided November 9, 2001

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.
William E. Persina, Attorney, Federal Labor Relations  Authority, argued the cause for respondent.  With him on the  brief was David M. Smith, Solicitor. William R. Tobey,  Deputy Solicitor, entered an appearance.
Before:  Sentelle, Randolph and Garland, Circuit Judges.
Opinion for the Court filed by Circuit Judge Sentelle.
Sentelle, Circuit Judge:


1
The Association of Civilian Technicians, Tony Kempenich Memorial Chapter 21 ("the Union")  petitions this Court for review of the Federal Labor Relations  Authority's ("FLRA" or "Authority") decision in which the  FLRA determined that a collective bargaining agreement  provision requiring the Department of Defense ("DOD") to  permit employees to use "official time" to lobby Congress on  pending legislation is contrary to law.  In reaching this  determination, the Authority concluded that the disputed  provision would require the agency to use appropriated funds  in a manner prohibited by section 8012 of the Department of  Defense Appropriations Act, Pub. L. No. 105-262, 112 Stat.  2279, 2299 (1998) ("Appropriations Act").  Because we agree  with the Authority, we deny the petition for review.

I. Background

2
The Association of Civilian Technicians, a federal employee  labor organization, filed a negotiability appeal with the FLRA  pursuant to 5 U.S.C. § 7105(a)(2)(E), concerning provisions of  a collective bargaining agreement that had been disapproved  by the head of the agency (the Department of Defense) as  contrary to law under 5 U.S.C. § 7114(c).  The disputed  provision would grant official time to "Union officials when  representing Federal Employees by visiting, phoning and  writing to elected representatives in support [of] or opposition  to pending or desired legislation which would impact the  working conditions of employees represented by the labor  organization."  Association of Civilian Technicians, Tony  Kempenich Memorial Ch. 21, 56 F.L.R.A. 526 (2000).


3
The Union argues that sections 7131 and 7102 of the  Federal Service Labor-Management Relations Act (the collective bargaining laws) mandate inclusion of this provision. 5 U.S.C. §§ 7102, 7131.  Section 7131 governs the grant of  "official time," which allows employees performing union representation functions to be paid as if they were at work,  without being charged for annual leave.  Under that section, union officials may be granted "official time" for a variety of  reasons, including those "in connection with any other matter  covered by [the collective bargaining laws]," so long as such  time is "reasonable, necessary, and in the public interest." Id. at § 7131(d).  Section 7102(1) provides that employees,  acting in their union representational capacity, have the right  to present the views of their labor organization to Congress. The FLRA has read these sections together to mean that  union representatives may receive official time for lobbying  Congress in matters concerning their working conditions. See, e.g., National Fed'n of Fed. Employees Local 259, 52  F.L.R.A. 920, 932-33 (1997).


4
In this case, however, the agency contends, and the Authority agrees, that section 8012 of the Appropriations Act prohibits this application of the collective bargaining laws, at least  with respect to DOD employees.  As the Authority held in  New Hampshire Nat'l Guard, 54 F.L.R.A. 301, 310 (1998),  aff'd sub nom. Granite State Chapter, Ass'n of Civilian  Technicians v. FLRA, 173 F.3d 25 (1st Cir. 1999), the authorization in § 7131(d) to negotiate for official time, as with  bargaining on any other matter under the statute, is contingent on the bargaining proposal being consistent with applicable laws, rules, and regulations. See National Fed'n of Fed.  Employees Local 2015, 41 F.L.R.A. 1158, 1185 (1991) ("Additionally, official time may be granted for a variety of matters  and parties may negotiate under section 7131(d) for official  time, as long as it is otherwise consistent with the Statute and  other applicable laws and regulations");  American Fed'n of  Gov't Employees, Nat'l Council of Field Labor Locals, 39  F.L.R.A. 546, 553 (1991) (same).  Section 8012 of the Appropriations Act provides:  "None 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."  Thus, the Authority concluded that the Appropriations Act precluded, as a  matter of law, the granting of official time for lobbying  Congress on pending matters, though not non-pending, desired, legislation. See 56 F.L.R.A. at 529.  In reaching this  decision, the FLRA relied on decisions of the First and Ninth Circuits in Granite State Chapter, Association of Civilian  Technicians v. FLRA, 173 F.3d 25 (1st Cir. 1999) ("Granite  State"), and Association of Civilian Technicians, Silver Barons Chapter v. FLRA, 200 F.3d 590 (9th Cir. 2000) ("Silver  Barons"), which addressed virtually identical collective bargaining provisions and identical DOD appropriations act language from previous years.  The Authority rejected the  union's argument that similar collective bargaining agreement  provisions were held to be consistent with other anti-lobbying  laws, including 18 U.S.C. § 1913, and section 8001 of the  Appropriations Act.  The FLRA observed that "[m]ost of the  Union's arguments presented in this case have been considered and rejected in prior decisions."  Specifically, the Authority cited its prior decision in New Hampshire Nat'l  Guard, 54 F.L.R.A. at 310-11, in which the FLRA noted that  section 8012 and its predecessors did not contain the same  exceptions to the lobbying ban as do 18 U.S.C. § 1913 and  Appropriations Act § 8001.  Rather, section 8012 and its  predecessors contain an absolute ban on using appropriated  funds for lobbying.


5
Further, the FLRA held that section 8012 was more specific in scope than 5 U.S.C. § 7131(d), and thus rejected the  argument that the right to official time prevails as more  specific than the prohibition against using "funds made available" for lobbying.  It rejected the union's argument that  official time was indistinguishable from paid leave under  section 8012, and that the agency's interpretation would necessarily prohibit lobbying while on paid leave, potentially in  violation of the First Amendment.  Instead, the FLRA concluded, as it had previously held in Association of Civilian  Technicians, Old Hickory Chapter and U.S. Dep't of Defense,  North Carolina Nat'l Guard Bureau, 55 F.L.R.A. 811 (1999)  ("North Carolina Guard"), that official time and annual leave  were distinguishable.  Finally, the FLRA also rejected the  union's argument that its previous interpretation of the forerunner provisions to 8012 was " 'implausible' " given Congress's rejection of legislation that would have banned lobbying on official time for all federal employees.  56 F.L.R.A. at  529.  Rather, the FLRA observed that Congress had carved out special treatment for DOD employees through the DOD  Appropriations Act.  Id.


6
On motion for reconsideration, the FLRA affirmed its  decision that disapproval of the provision of the collective  bargaining agreement applying to pending legislation was  proper. 56 F.L.R.A. 947 (2000).  The Union sought review in  this Court.

II. Analysis

7
"In reviewing the FLRA's interpretation of its own enabling statute, we are mindful that we owe great deference to  the expertise of the Authority as it 'exercises its "special  function of applying the general provisions of the Act to the  complexities" of federal labor relations.' "  NLRB Union,  Local 6 v. FLRA, 842 F.2d 483, 486 (D.C. Cir. 1988) (quoting  Bureau of Alcohol, Tobacco & Firearms v. FLRA, 464 U.S.  89, 97 (1983)).  Were we reviewing the Authority's interpretation of the Federal Service Labor Management Relations Act,  we would review that interpretation deferentially under the  standard set forth in Chevron U.S.A. Inc. v. Natural Res.  Def. Council, 467 U.S. 837 (1984).  Here, however, we are  also faced with the FLRA's interpretation of the Department  of Defense Appropriations Act, a statute not committed to the  Authority's administration.  In general, this Court does not  defer to the FLRA's interpretation of a statute not committed  to the Authority's administration, but reviews such purely  legal questions de novo.  See Social Sec. Admin. v. FLRA,  201 F.3d 465, 471 (D.C. Cir. 2000).  We have reviewed the  Authority's interpretation of the Appropriations Act under  this de novo standard.


8
Congress expressed a clear intent to prohibit the use "in  any way" of "funds made available by the [DOD Appropriations] Act" to "influence congressional action on any legislation or appropriation matters pending before the Congress." Appropriations Act § 8012 (emphasis added).  Twice before,  our sister circuits have addressed this very issue, involving  the same labor union, similar, if not identical bargaining  provision language, and identical predecessor DOD appropriations acts. Granite State, 173 F.3d at 27-28;  Silver Barons,  200 F.3d at 592-93.  And unsurprisingly, twice before, our  sister circuits have affirmed the Authority's determination  that the disputed provision was contrary to law and therefore  nonnegotiable.  Perhaps the Union believed the third time  would be the charm.  It is not.  Nothing has changed--not  the crux of the provision in dispute, and not the appropriations act language, and therefore we see no reason to depart  from our sister circuits' good company.  The Appropriations  Act prohibits the disputed provision because, as the FLRA  has had several occasions to reiterate, official time may only  be granted to the extent that it is consistent with all "applicable laws and regulations."  E.g., NFFE Local 2015, 41  F.L.R.A. at 1185.  Here the granting of official time is not  consistent with the Appropriations Act.  Hardly more needs  to be said.


9
The Union also raises a constitutional argument which we  dispense with just as summarily.  The Union contends that  the FLRA's treatment of the Appropriations Act raises "serious" First Amendment concerns because it leads to the  "unacceptable conclusion that employee activities on paid  annual leave constitute use of appropriated funds, and that  § 8012 therefore prohibits employees from visiting Members  of Congress while on annual leave."  However, this "unacceptable conclusion" is predicated on there being no difference  between annual leave and official time.  That is simply not so. The Authority has reasonably distinguished between official  time and paid annual leave.  See North Carolina Guard, 55  F.L.R.A. at 813 (setting out the "critical distinction" between  employee use of official time and annual leave).  The collective bargaining laws impose restrictions on the use of official  time that are not applicable to the use of paid annual leave. Official time is a "distinct third category of time," id., and  unlike annual leave, is considered to be "hours of work."  5  C.F.R. § 551.424(b) (2001).  Annual leave is compensation for  work performed at other times.  This First Amendment  argument is a red herring.  Section 8012, like its predecessors, "does not in any way affect what Union members can do  during their annual leave." Granite State, 173 F.3d at 28 n.3.


10
Finally, at oral argument, the question arose whether this  interpretation of the Appropriations Act would affect lobbying  by DOD officials (i.e., the Secretary of Defense or other  agency "management") in their official capacity on behalf of  the Department and the Executive Branch.  Because this  issue is not before us, rather only a union's use of "official  time," we need not address it, though we do note that  applying section 8012 to DOD officials in their official capacity  would raise constitutional separation of powers concerns not  implicated here.  That question would also require us to  inquire into longstanding practices of DOD officials in lobbying Congress, to determine whether their actions have placed  a "gloss" on Congress's action in enacting section 8012.  See,  e.g., FDA v. Brown & Williamson Tobacco Corp., 529 U.S.  120, 132-33, 137 (2000);  Cannon v. University of Chicago,  441 U.S. 677, 696-99 (1979).  The agency's continued lobbying  of Congress in the presence of recurring appropriations act provisions such as section 8012 provides additional background for interpreting such sections not relevant to the case  before us.

III. Conclusion

11
Because we agree with the Authority that section 8012 of  the Appropriations Act renders the disputed provision contrary to law, we deny the petition for review.

