shaw bransford & roth case law update

GAO Declines Reconsideration of Disposable Utensil Purchase Ban

In 2013, the Department of Commerce informed the National Weather Service Employee Organization (“NWSEO” or “union”) that it would no longer provide eating utensils to workers due to a lack of funds, despite a September 2009 memorandum of understanding pledging the purchase of said utensils.

In arbitration regarding the issue, the arbitrator sided with the union, but after bringing the case in front of the Federal Labor Relations Authority (“FLRA”) by filing Exceptions to the Arbitration Award, the Department of Commerce asked the FLRA to stay a decision while the Government Accountability Office (“GAO”) considered the issue. On December 23, 2014, GAO issued a decision to the Department of Commerce holding that appropriated funds are not available to purchase disposable cups, plates, and cutlery for employee use, reasoning that these purchases constituted the personal expenses of employees. NWSEO requested reconsideration from GAO’s General Counsel, claiming that the initial decision was unauthorized by law and contrary to GAO policy. On August 6, 2015, GAO’s General Counsel responded to NWSEO, informing the union that it declined to reconsider the decision.

Citing its initial decision, GAO’s reconsideration decision explained that “pubic funds are generally not available for the cost of personal items for the public’s employees,” and that accommodating employees’ personal tastes could not justify purchasing personal items when considering “accountability to Congress for the proper use of public money appropriated to agencies.” According to GAO, “neither Commerce nor the arbitrator’s opinion demonstrated that the provision of the disposable items was an essential part of accomplishing a statutory mission.”

The union argued that the “Federal Service Labor Management Relations Statute prohibited GAO from rendering a decision on the availability of appropriations for the personal expenses of federal employees if an arbitrator has opined on the matter.” GAO responded by stating that its authority was derived from a separate statute altogether (31 U.S.C. § 3529) which grants GAO’s Comptroller General (and previously the Comptroller of the Treasury) authority to render advance decisions if “a disbursing or certifying official or the head of an agency” requests such a decision. GAO went on to state that its “statutory responsibilities in this regard are widely understood and respected,” dating back to the mid-nineteenth century.

Citing Navy v. FLRA, 664 F.3d 1339 (D.C. Cir. 2012), a case in which it was ruled that the Navy could not collectively bargain over bottled water if tap water was safe and drinkable, GAO observed that the D.C. Circuit Court of Appeals held that even though FLRA “is entitled to deference when interpreting and applying the Federal Service Labor Management Relations Statute,” federal appropriations statutes generally are not within FLRA’s area of expertise, and that the Comptroller General’s decisions constitute an “expert opinion.”

Addressing the union’s claim that GAO should not issue a decision or comment on the merits of a matter subject to grievance procedures, GAO clarified that it would not issue decisions on matters subject to grievance procedures “if [GAO finds] that it is more properly within the jurisdiction of the Federal Labor Relations Authority.” The reconsideration decision went on to assert the General Counsel’s belief that the union may be confusing GAO’s former claims settlement authority with its current accounts settlement authority. Specifically, the GAO reconsideration decision points out that while the union cited a GAO decision stating that GAO “may not overrule a specific arbitration award,” the union’s citation “neglect[ed] to include” the two sentences following that quote, which state “The Comptroller General has the authority to settle the accounts of the United States government and thus to ensure the legality of government expenditures…Also, the Comptroller General is required to respond to agencies’ requests for decisions on questions involving payments the agency will make.”

According to GAO, its accounts settlement authority is unchanged, and is a specific charge from Congress. The reconsideration decision summarized its authority to issue decisions on questions by stating that “[q]uestions regarding the legal availability of appropriations for particular purposes, including purposes that might constitute unauthorized personal expenses, as opposed to specific disputes over amounts owed to individuals, are a primary component of almost 100 years of Comptroller General decisions and opinions.”

GAO observed that while Congress could enact a statute authorizing an agency to use public money for personal expenses, it had not yet done so, and thus the Department of Commerce could not use appropriated funds to provide the disposable utensils at issue.

For the above stated reasons, GAO found that its previous decision did not contain a material error of fact or law, and therefore declined to reconsider its decision.

Read the full reconsideration decision: Department of Commerce—Disposable Cups, Plates, and Cutlery (Reconsideration)


This case law update was written by Conor D. Dirks, associate attorney, Shaw Bransford & Roth, PC.

For thirty years, Shaw Bransford & Roth P.C. has provided superior representation on a wide range of federal employment law issues, from representing federal employees nationwide in administrative investigations, disciplinary and performance actions, and Bivens lawsuits, to handling security clearance adjudications and employment discrimination cases.

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