author: Justice Breyer Justice O’Connor,

text:
    NATIONAL FEDERATION OF FEDERAL EMPLOYEES, LOCAL 1309 v. DEPARTMENT OF THE INTERIOR et al.
    No. 97-1184.
    Argued November 9, 1998
    Decided March 3, 1999

      Breyer, J., delivered the opinion of the Court, in which Stevens, Kennedy, Souter, and Ginsburg, JJ., joined. O’Connor, J., filed a dissenting opinion, in which Rehnquist, C. J., joined, and in which Scaua and Thomas, JJ., joined as to Part I, post, p. 101.

      Gregory O’Duden argued the cause for petitioner in No. 97-1184. With him on the briefs was Barbara A. Atkin. David M. Smith argued the cause for petitioner in No. 97-1243. With him on the brief was James F Blandford.

      Irving L. Gornstein argued the cause for the Department of the Interior in both cases. On the brief were Solicitor General Waxman, Assistant Attorney General Hunger, Deputy Solicitor General Underwood, Jonathan E. Nuech-terlein, William Ranter, Robert M. Loeb, and Sushma Soni.

      Together with No. 97-1243, Federal Labor Relations Authority v. Department of the Interior et al., also on certiorari to the same court.

        Jonathan P. Hiatt, James B. Coppess, Marsha S. Berzon, Laurence Gold, Mark D. Roth, and Kevin M. Grile filed a brief for the American Federation of Labor and Congress of Industrial Organizations et al. as amici curiae urging reversal.

   Justice Breyer

delivered the opinion of the Court.

The Federal Service Labor-Management Relations Statute requires federal agencies and the unions that represent their employees to “meet and negotiate in good faith for the purposes of arriving at a collective bargaining agreement.” 5 U. S. C. § 7114(a)(4). We here consider whether that duty to bargain extends to a clause proposed by a union that would bind the parties to bargain midterm — that is, while the basic comprehensive labor contract is in effect — about subjects not included in that basic contract. We vacate a lower court holding that the statutory duty to bargain does not encompass midterm bargaining (or bargaining about midterm bargaining). We conclude that the Statute delegates to the Federal Labor Relations Authority the legal power to determine whether the parties must engage in midterm bargaining (or bargaining about that matter). We remand these cases so that the Authority may exercise that power.

I

Congress enacted the Federal Service Labor-Management Relations Statute (Statute or FSLMRS) in 1978. See 5 U. S. C. §7101 et seq. Declaring that “labor organizations and collective bargaining in the civil service are in the public interest,” § 7101(a), the Statute grants federal agency employees the right to organize, provides for collective bargaining, and defines various unfair labor practices. See §§ 7114(a)(1), 7116. It creates the Federal Labor Relations Authority, which it makes responsible for implementing the Statute through the exercise of broad adjudicatory, policy-making, and rulemaking powers. §§ 7104, 7105. And it establishes within the Authority a Federal Service Impasses Panel, to which it grants the power to resolve negotiation impasses through compulsory arbitration, § 7119, hence without the strikes that the law forbids to federal employees, § 7116(b)(7).

Of particular relevanee here, the Statute requires a federal agency employer to “meet” with the employees’ collective-bargaining representative and to “negotiate in good faith for the purposes of arriving at a collective bargaining agreement.” § 7114(a)(4). The Courts of Appeals disagree about whether, or the extent to which, this good-faith-bargaining requirement extends to midterm bargaining. Suppose, for example, that the federal agency and the union negotiate a basic 5-year contract. In the third year a matter arises that the contract does not address. If the union seeks negotiations about the matter, does the Statute require the agency to bargain then and there, or can the agency wait for basic contract renewal negotiations? Does it matter whether the basic contract itself contains a “zipper clause” expressly forbidding such bargaining? Does it matter whether the basic contract itself contains a clause expressly permitting midterm bargaining? Can the parties insist upon bargaining endterm (that is, during the negotiations over adopting or renewing a basic labor contract) about whether to include one or the other such clauses in the basic contract itself?

In 1985 the Authority began to answer some of these questions. It considered a union’s effort to force midterm negotiations about a matter the basic labor contract did not address, and it held that the Statute did not require the agency to bargain. Internal Revenue Service, 17 F. L. R. A. 731 (1985) (IRS I).

The Court of Appeals for the District of Columbia Circuit, however, set aside the Authority’s ruling. The court held that in light of the intent and purpose of the Statute, it must be read to require midterm bargaining, inasmuch as it did not create any distinction between bargaining at the end of a labor contract’s term and bargaining during that term. National Treasury Employees Union v. FLRA, 810 F. 2d 295 (1987) (NTEU). On remand the Authority reversed its earlier position. Internal Revenue Service, 29 F. L. R. A. 162, 166 (1987) (IRS II). Accepting the D. C. Circuit’s analysis, the Authority held:

“[TJhe duty to bargain in good faith imposed by the Statute requires an agency to bargain during the term of a collective bargaining agreement on negotiable union-initiated proposals concerning matters which are not addressed in the [basic] agreement and were not clearly and unmistakably waived by the union during negotiation of the agreement." Id., at 167.

The Fourth Circuit has taken a different view of the matter. It has held that “union-initiated midterm bargaining is not required by the statute and would undermine the congressional policies underlying the statute.” Social Security Administration v. FLRA, 956 F. 2d 1280, 1281 (1992) (SSA). Nor, in its view, may the basic labor contract itself impose a midterm bargaining duty upon the parties. Department of Energy v. FLRA, 106 F. 3d 1158, 1163 (1997) (holding unlawful a midterm bargaining clause that the Federal Service Impasses Panel had imposed upon the parties’ basic labor contract).

In the present suit, the National Federation Employees, Local 1309 (Union), representing employees of the United States Geological Survey, a subagency of the Department of the Interior (Agency), proposed including in the basic labor contract a midterm bargaining provision that said:

“The Union may request and the Employer will be obliged to negotiate [midterm] on any negotiable matters not covered by the provisions of this [basic] agreement.” Department of Interior, 52 F. L. R. A. 475, 476 (1996).

The Agency, relying on the Fourth Circuit’s view that the Statute prohibits such a provision, refused to accept, or to bargain about, the proposed clause. The Authority, reiterating its own (and the D. C. Circuit’s) contrary view, held that the Agency’s refusal to bargain amounted to an unfair labor practice. Id., at 479-481. The Statute itself, said the Authority, imposes an obligation to engage in midterm bargaining — an obligation that the proposed clause only reiterates. Id., at 479-480. And even if such an obligation did not exist under the Statute, the Authority added, a proposal to create a contractual obligation to bargain midterm is a fit subject for endterm negotiation. Id., at 480-481. Consequently, the Authority ordered the Agency to bargain over the proposed clause.

The Fourth Circuit set aside the Authority’s order. 132 F. 3d 157 (1997). The court reiterated its own view that the Statute itself does not impose any midterm bargaining duty. Id., at 161-162. That being so, it concluded, the parties should not be required to bargain endterm about including a clause that would require bargaining midterm. The court reasoned that once bargaining over such a clause began, the employer would have no choice but to accept the clause. Were the employer not to do so (by bargaining to impasse over the proposed clause), the Federal Service Impasses Panel would then inevitably insert the clause over the employer’s objection, as the Impasses Panel (like the D. C. Circuit) believes that a midterm bargaining clause would merely reiterate the duty to bargain midterm that the Statute itself imposes. Ibid.

We granted certiorari to consider the conflicting views of the Circuits.

II

We shall focus primarily upon the basic question that divided the Gircuits: Does the Statute itself impose a duty to bargain during the term of an existing labor contract? The Fourth Circuit thought that the Statute did not impose a duty to bargain midterm and that the matter was sufficiently clear to warrant judicial rejection of the contrary view of the agency charged with the Statute’s administration. SSA, supra, at 1284 (stating that “ ‘Congress has directly spoken to the precise question at issue,’” and quoting Chevron U. S. A. Inc. v. Natural Resources Defense Council, Inc., 467 U. S. 837, 842 (1984)). We do not agree with the Fourth Circuit, for we find the Statute’s language sufficiently ambiguous or open on the point as to require judicial deference to reasonable interpretation or elaboration by the agency charged with its execution. See id., at 842-845; Fort Stewart Schools v. FLRA, 495 U. S. 641, 644-645 (1990).

The D. C. Circuit, all agree that the Statute itself does not expressly address union-initiated midterm bargaining. See NTEU, supra, at 298; SSA, supra, at 1284; Brief for Petitioner FLRA in No. 97-1243, p. 18. The Statute’s relevant language simply says that federal agency employer and union representative “shall meet and negotiate in good faith for the purposes of arriving at a collective bargaining agreement.” 5 U. S. C. § 7114(a)(4). It defines the key term “collective bargaining agreement” as an “agreement entered into as a result of collective bargaining.” § 7103(a)(8). And it goes on to define “collective bargaining” as involving the meeting of employer and employee representatives “at reasonable times” to “consult” and to “bargain in a good-faith effort to reach agreement with respect to the conditions of employment,” incorporating “any collective bargaining agreement reached” as a result of these negotiations in “a written document.” § 7103(a)(12). This language, taken literally, may or may not include a duty to bargain collectively midterm.

The Agency, here gues that in context, this language must exclude midterm bargaining. We shall explain why we do not agree with each of the Agency’s basic arguments.

First, the Agency a As an initial matter, it emphasizes the words “arriving at” in the Statute’s general statement that the parties must bargain “for the purposes of arriving at a collective bargaining agreement.” This statement tends to exclude midterm bargaining, the Agency contends, because parties engage in midterm bargaining, not for the purpose of arriving at, but for the purpose of supplementing, their basic, comprehensive labor contract. In other words, the basic collective-bargaining agreement is the only appropriate destination at which negotiations might “arriv[e].” The Agency adds that “collective bargaining agreement” is a term of art, which only and always refers to basic labor contracts, not to midterm agreements.

Further, while the Agency acknowledges that there is a duty to bargain midterm in the private sector, see NLRB v. Jacobs Manufacturing Co., 196 F. 2d 680 (CA2 1952), it argues that this private-sector duty is based upon language in the National Labor Relations Act (NLRA) that is different in significant respects from the language in the Statute here. The Agency explains that the NLRA defines private-sector collective bargaining to include (1) negotiation “with respect to wages, hours, and other terms and conditions of employment, or [(2)] the negotiation of an agreement, or any question arising thereunder.” 29 U. S. C. § 158(d) (emphasis added). The “or,” under this view, indicates that private-sector employers have a comprehensive duty to “bargain collectively” whether or not such bargaining is part of “the negotiation of an agreement” leading to “written contract.”

arguments, while logical, make too much of too little. One can easily read “arriving at a collective bargaining agreement5” as including an agreement reached at the conclusion of midterm bargaining, particularly because the Statute itself does no more than define the relevant term “collective bargaining agreement” in a circular way — as “an agreement entered into as a result of collective bargaining.” 5 U. S. C. § 7103(a)(8). Nor have we found any statute, judicial opinion, agency document, or treatise that says whether the words “collective bargaining agreement” are words of art that must necessarily exclude midterm agreements. Finally, the linguistic differences between the NLRA and the FSLMRS tell us little, particularly given the fact that the two labor statutes, like collective bargaining itself, are not otherwise identical in the two sectors. For all these reasons, we find in the relevant statutory language ambiguity, not certainty.

Second, the Agency — like that the Statute’s policies demand a reading of the statutory language that would exclude midterm bargaining from its definition of “collective bargaining.” The availability of midterm bargaining, the Agency argues, might lead unions to withhold certain subjects from ordinary endterm negotiations and then to raise them during the term, under more favorable bargaining conditions. A union might conclude, for example, that it is more likely to get what it wants by presenting a proposal during the term (when no other issues are on the table and a compromise is less likely) and then negotiating to impasse, thus leaving the matter for the Federal Service Impasses Panel to resolve. The Agency also points out that public-sector and private-sector bargaining differ in this respect. Private-sector unions enforce their views through strikes, and because they hesitate to strike midterm, they also have no particular incentive to bargain midterm. But public-sector unions enforce their views through compulsory arbitration, not strikes. Hence, the argument goes, public-sector unions have a unique incentive to bargain midterm on a piecemeal basis, thereby threatening to undermine the basic collective-bargaining process. See, a. g., SSA, 956 F. 2d, at 1288-1289.

Other policy concerns, argue ing of the Statute. Without midterm bargaining, for example, will it prove possible to find a collective solution to a workplace problem, say, a health or safety hazard, that first appeared midterm? The Statute’s emphasis upon collective bargaining as “eontributEing] to the effective conduct of public business,” 5 U. S. C. § 7101(a)(1)(B), suggests that it would favor joint, not unilateral, solutions to such midterm problems.

The Authority would seem better suited than a court to make the workplace-related empirical judgments that would help properly balance these, and other, policy-related considerations. The Statute does not indicate that Congress itself decided to make these specific policy judgments. Hence the Agency’s policy arguments illustrate the need for the Authority’s elaboration or refinement of the basic statutory collective-bargaining obligation; they illustrate the appropriateness of judicial deference to considered Authority views on the matter; and, most importantly, they do not narrow the scope of a statutory provision the language of which is consistent with a variety of interpretations.

Third, the Agency argues that the Statute’s history and prior administrative practice support its view that federal agencies have no duty to bargain midterm. The Statute grew out of an Executive Order that previously had governed federal-sector labor relations. See Exec. Order No. 11491, 3 CFR 861 (1966-1970 Comp.), as amended by Exec. Order Nos. 11616, 11636, and 11838, 3 CFR 605, 634, 957 (1971-1975 Comp.). In support, the Agency cites a ease in which an Assistant Secretary of Labor, applying that Executive Order, dismissed an unfair labor practice complaint on the ground, among others, that a federal agency need not bargain over midterm union proposals. Army and Air Force Exchange Serv., Capital Exchange Region Headquarters, Case No. 22-6657(CA), 2 Rulings on Requests for Review of Assistant Secretary of Labor for Labor-Management Relations 561-562 (1976) (not reviewed by the Federal Labor Relations Council, predecessor to the Authority); see IRS I, 17 F. L. R. A., at 786-737, n. 7 (finding, based upon this decision, that there was no obligation to bargain over midterm union proposals under the Executive Order). A single alternative ground, however — in a single, unreviewed decision from before the Statute was enacted — does not demonstrate the kind of historical practice that one might assume would be reflected in the Statute, particularly when at least one treatise suggested at the time that federal labor relations practice was to the contrary. See H. Robinson, Negotiability in the Federal Sector 10-11, and n. 9 (1981) (stating that under the Executive Order both unions and agencies had a continuing duty to bargain through the term of a basic labor contract).

The Agency also points to a Senate Report in support its interpretation of the Statute. That Report speaks of the parties’ “mutual duty to bargain” with respect to (1) “changes in established personnel policies proposed by management,” and (2) “negotiable proposals initiated by either the agency or [the union] ... in the context of negotiations leading to a basic collective bargaining agreement.” S. Rep. No. 95-969, p. 104 (1978) (emphasis added). This Report, however, concerns a bill that contains language similar to the language before us but was not enacted into law. According to the D. C. Circuit, at least, any distinction between basic and midterm bargaining that is indicated by this passage “did not survive the rejection by Congress of the Senate’s restrictive view of the rights of labor and the importance of collective bargaining.” NTEU, 810 F. 2d, at 298. In any event, the Report’s list of possible occasions for collective bargaining does not purport to be an exclusive list; it does not say that the Statute was understood to exclude midterm bargaining; and any such implication is simply too distant to control our reading of the Statute.

Fourth, the Agency the “management rights” provision of the Statute, 5 U. S. C § 7106, does authorize limited midterm bargaining in respect to certain matters (not here at 'issue), and that by negativ< implication it denies permission to bargain midterm in re spect to any others. See, e. g., SSA, supra, at 1284 (“Th inclusion of a specific duty of midterm effects bargainin;

. . . suggests the duty into the statute”). Our examination of that provisior however, finds little support for such a strong negative implication.

Subsection (a) of the management rights provision withdraws from collective bargaining certain subjects that it reserves exclusively for decision by management. It specifies, for example, that federal agency “management offieial[s]” will retain their authority to hire, fire, promote, and assign work, and also to determine the agency’s “mission, budget, organization, number of employees, and internal security practices.” § 7106(a).

Subsection (b), however, permits a certain amount of collective bargaining in respect to the very subjects that subsection (a) withdrew. Subsection (b) states:

“Nothing in this section shall preclude any agency and any labor organization from negotiating—
the agency, on the numbers, types, and grades of employees or positions assigned to any organizational subdivision, work project, or tour of duty, or on the technology, methods, and means of performing work;
procedures which management officials . . . will observe in exercising any authority under this section; or
“(3) appropriate arrangements for employees adversely affected by the exercise of any authority under this section by such management officials.” § 7106(b) (emphasis added).

The two subsections of the management rights provision, taken together, do not help the Agency. While the provision contemplates that bargaining over the impact and implementation of management changes may take place during the term of the basic labor contract, subsection (b) need not be read to actually impose a duty to bargain midterm. The italicized clause, “[njothing in this section shall preclude,” indicates only that the delegation of certain rights to management (e. g., promotions) shall not preclude negotiations about certain related matters (e. g., promotion procedures). By its terms, then, subsection (b) does nothing more than create an exception to subsection (a), preserving the duty to bargain with respect to certain matters otherwise committed to the discretion of management. Because § 7106(b) chiefly addresses the subject matter of bargaining and not the timing, one could reasonably conclude that while that subsection contemplates midterm bargaining in the circumstances there specified, the duty to bargain midterm finds its source elsewhere in the Statute. Hence, the management rights provision seems to hurt, as much as to help, the Agency’s basic argument.

The upshot of this analysis the Fourth Circuit find a clear statutory denial of any midterm bargaining obligation, we find ambiguity created by the Statute’s use of general language that might, or might not, encompass various forms of midterm bargaining. That kind of statutory ambiguity is inconsistent both with the Fourth Circuit’s absolute reading of the Statute and also with the D. C. Circuit’s similarly absolute, but opposite, reading. Compare SSA, 956 F. 2d, at 1284, with NTEU, 810 F. 2d, at 301 (rejecting the Authority’s position that there is no duty to bargain midterm on the ground that it is “contrary to the intent of the legislature and the guiding purpose of the statute”). Indeed, the D. C. Circuit’s analysis implicitly concedes the need to make at least some midterm bargaining distinctions, when it assumes that the midterm bargaining obligation does not extend to matters that are covered by the basic contract. See id., at 296.

The statutory ambiguity is perfectly consistent, with the conclusion that Congress delegated to the Authority the power to determine — within appropriate legal bounds, see, e.g., 5 U. S. C. §706 (Administrative Procedure Act); Chevron U. S. A. Inc. v. Natural Resources Defense Council, Inc., 467 U. S. 887 (1984) — whether, when, where, and what sort of midterm bargaining is required. The Statute’s delegation of rulemaking, adjudieatory, and policymaking powers to the Authority supports this conclusion. See 5 U. S. C. § 7105(a)(1) (“Authority shall provide leadership in establishing policies and guidance”); § 7105(a)(2)(E) (Authority “resolves issues relating to the duty to bargain in good faith”); § 7117(c) (Authority resolves disputes about whether the duty to bargain in good faith extends to a particular matter); accord, American Federation of Govt. Employees, Local 2986, AFL-CIO v. FLRA, 775 F. 2d 1022, 1027 (CA9 1985); American Federation of Govt. Employees, AFL-CIO, Council of Soc. Sec. Dist. Office Locals, San Francisco Region v. FLRA, 716 F. 2d 47, 50 (CADC 1983). This conclusion is also supported by precedent recognizing the similarity of the Authority’s public-sector and the National Labor Relations Board’s private-sector roles. As we have recognized, the Authority’s function is “to develop specialized expertise in its field of labor relations and to use that expertise to give content to the principles and goals set forth in the Act,” and it “is entitled to considerable deference when it exercises its ‘special function of applying the general provisions of the Act to the complexities’ of federal labor relations.” Bureau of Alcohol, Tobacco and Firearms v. FLRA, 464 U. S. 89, 97 (1983) (quoting NLRB v. Erie Resistor Corp., 373 U. S. 221, 236 (1963)).

We conclude that Congress “left” the matters of whether, when, and where midterm bargaining is required “to be resolved by the agency charged with the administration of the statute in light of everyday realities.” Chevron, supra, at 865-866.

Ill

The specific question before us is whether an agency must bargain endterm about including in the basic labor contract a clause that would require certain forms of midterm bargaining. As is true of midterm bargaining itself, and for similar reasons, the Statute grants the Authority leeway (within ordinary legal limits) in answering that question as well.

The Authority says its own judgment, that the parties must bargain over such a provision. Our reading of its relevant administrative determinations, however, leads us to conclude that its judgment on the matter was occasioned by the D. C. Circuit’s holding that the Statute must be read to impose on agencies a duty to bargain midterm. See, e. g., Merit Systems Protection Bd. Professional Assn., 30 F. L. R. A. 852, 859-860 (1988) (midterm bargaining clause is negotiable because it “reiterates a right the Union has under the Statute”); 52 F. L. R. A., at 479 (in the instant suit, restating that same conclusion). The Authority did indicate below that even if it agreed with the Fourth Circuit’s position that the Statute does not impose a duty to bargain midterm, the outcome in this litigation would be no different, as the Authority “ ‘has previously upheld the negotiability of proposals despite the absence of a statutory right concerning the matter in question.’ ” Id., at 480 (quoting Department of Energy, 51 F. L. R. A. 124, 127 (1995), enf. denied, Department of Energy v. FLRA, 106 F. 3d 1158 (CA4 1997)). This explanation, however, seems more an effort to respond to, and to distinguish, a contrary judicial authority, rather than an independently reasoned effort to develop complex labor policies. Regardless, the Authority’s conclusion would seem linked to the D. C. Circuit’s basic understanding about the statutory requirements.

In our resolve the question of midterm bargaining, nor the related question of bargaining about midterm bargaining, we believe the Authority should have the opportunity to consider these questions aware that the Statute permits, but does not compel, the conclusions it reached.

The judgment of the Fourth Circuit is vacated, and the cases are remanded for further proceedings consistent with this opinion.

It is so ordered.

Justice O’Connor,

with whom The Chief Justice joins, and with whom Justice Scalia and Justice Thomas join as to Part I, dissenting.

The Court today ignores the plain meaning of the Federal Service Labor-Management Relations Statute (Federal Labor Statute or Statute) and erroneously concludes that when an agency responds to a judicial decision by abandoning its own interpretation of a statute and adopting that of the judicial forum this Court should defer to the agency’s revised position, rather than evaluate whether the revised interpretation renders, in fact, the most plausible reading of the statute. I respectfully dissent.

The Federal Labor Statute plainly does not impose a general duty on agencies to bargain midterm. See Social Security Administration v. FLRA, 956 F. 2d 1280, 1281 (CA4 1992). Whether the language of a statute is plain or ambiguous is determined “by reference to the language itself, the specific context in which that language is used, and the broader context of the statute as a whole.” Robinson v. Shell Oil Co., 519 U. S. 337, 341 (1997).

Here, the language of the Federal Labor Statute, as well as the specific and broader contexts in which that language is used, demonstrates that the Statute is unambiguous. The Federal Labor Statute specifies a few instances where midterm bargaining is required, see 5 U. S. C. § 7106(b), but it contains no provision that expressly or implicitly imposes a general duty on agencies to bargain during the term of a collective bargaining agreement. Rather, Congress defined the general duty to bargain to include only a duty to “meet and negotiate in good faith for the purposes of arriving at a collective bargaining agreement,” § 7114(a)(4) (emphasis added), and obligated agencies to negotiate “with a sincere resolve to reach a collective bargaining agreement,” § 7114(b)(1) (emphasis added); see also § 7114(b)(5) (requiring parties “to take such steps as are necessary to implement such agreement”). The term “arrive” is commonly understood to mean “to reach a destination” or “to gain or achieve an end.” See Webster’s Third New International Dictionary 121 (1976). Thus, by its terms, the Federal Labor Statute requires an agency to “meet and negotiate in good faith” with unions only “for the purposes of” achieving an end: a comprehensive collective bargaining agreement. See also § 7103(a)(8) (defining “collective bargaining agreement” as “an agreement” reached through collective bargaining); §71QS(a)(12) (defining “collective bargaining,” in part, as “to reach [an] agreement with respect to the conditions of employment”).

The agreement is an end agreement of negotiation, the duty to bargain may encompass midterm agreements as well. See ante, at 93. As the word “midterm” suggests, however, such agreements are only a “midpoint” in the term of the underlying collective bargaining agreement. Because such agreements do not stand alone but relate back to the primary collective bargaining agreement, a midterm agreement is most appropriately regarded as a modification of, or a supplement to, the primary agreement reached pursuant to the Federal Labor Statute. See, e. g., 29 U. S. C. § 158(d) (describing midterm bargaining agreements in private sector as “modification[s]” to the primary agreement). The Federal Labor Statute expresses no general duty on the part of agencies to negotiate modifications or supplements to an existing collective bargaining agreement. With respect to modifications and supplements, the Statute requires only that agen-cíes bargain over a few specified topics. See 5 U. S. C. § 7106(b).

Section 7106(b) obligates an agency to bargain midterm over specified agency initiatives, such as the creation of “procedures which management officials of the agency will observe in exercising any authority” under the Federal Labor Statute. § 7106(b)(2); see also § 7106(b)(3) (providing for bargaining over “appropriate arrangements for employees adversely affected by the exercise of any authority under this section by such management officials”); American Federation of Government Employees, AFL-CIO, Local 2782 v. FLRA, 702 F. 2d 1183, 1186-1187 (CADC 1983). Because the Statute specifies a few, limited topics that are subject to midterm bargaining, it cannot be construed to require midterm bargaining generally. Such a construction, indeed, renders the specific and general obligations redundant. See, e. g., United States v. Nordic Village, Inc., 503 U. S. 30, 36 (1992).

The Court reasons that § 7106(b) does not define a limited duty to bargain midterm because it merely defines exceptions to § 7106(a), which, in turn, defines managerial rights that are themselves exceptions to the duties outlined in the Statute. Moreover, because the section’s introductory language “indicates only that the delegation of certain rights to management . . . shall not preclude negotiations about certain related matters,” see ante, at 97-98, the Court suggests that § 7106(b) defines a permissive exception to an exception rather than an obligation. It thus follows from the structure and text of § 7106(b) that “the duty to bargain midterm finds its source elsewhere in the Statute.” Ante, at 98.

The Court’s reliance on §7106(b)’s introductory language is misplaced because the subparts of § 7106(b) indicate that this section defines an obligation, not a permissive exception. Specifically, although § 7106(b)(1) provides that an agency at its election can initiate bargaining on working conditions, §§ 7106(b)(2) and (b)(3) are mandatory, requiring that agen-cíes bargain midterm over the matters specified. At the very least, §§ 7106(b)(2) and (b)(3) demonstrate that Congress intended to impose only a limited duty on agencies to bargain midterm. Even assuming § 7106(b) is permissive, there is no basis for the Court’s conclusion that this section demonstrates that a generalized duty to bargain midterm emanates from another statutory source; indeed, there is no other provision of the Statute from which such a duty could emanate. See ante, at 98. Accordingly, it is plain from its language and structure that a general duty to engage in midterm bargaining is not prescribed by the Federal Labor Statute.

That the Federal Labor Statute contemplates a single end agreement, and not supplementary agreements or modifications, is also demonstrated by a comparison of it to the National Labor Relations Act (NLRA), the Statute’s private-sector counterpart. The duty to bargain, as defined in the NLRA, includes "the negotiation of an agreement, or any question arising thereunder." 29 U. S. C. § 158(d) (emphasis added). This broad definition of the duty, which clearly contemplates negotiation of midterm agreements, stands in stark contrast to the duty defined in the Federal Labor Statute, to "arriv[e] at a collective bargaining agreement.” 5 U. S. C. § 7114(a)(4). The NLRA also contains a proviso limiting this broad duty to negotiate when there is “in effect a collective-bargaining contract covering employees in an industry” and a party desires to "modify” that contract. 29 U. S. C. § 158(d). For example, there is no duty to engage in midterm bargaining over matters already “contained in” the existing collective bargaining agreement. Ibid. As noted above, the Federal Labor Statute lacks any comparable language. Because, at the time it drafted the Statute, Congress knew that the NLRA defined a duty to bargain midterm, see NLRB v. Jacobs Mfg. Co., 196 F. 2d 680, 684 (CA2 1952), this omission indicates that Congress did not intend to include a similar duty in the Federal Labor Statute.

The Court concludes, nevertheless, that this omission is irrelevant because the Federal Labor Statute and the NLRA, as well as collective bargaining in the public and private sectors, are different. See ante, at 93; see also Fort Stewart Schools v. FLRA, 495 U. S. 641, 648 (1990) (observing that the Federal Labor Statute and the NLRA should not be read in pari materia). To be sure, there are differences between the Acts, but that fact does not render a comparison of them irrelevant. It is well established that “the interpretation of a doubtful statute may be influenced by language of other statutes which are not specifically related, but which apply to similar persons, things, or relationships.” 2B N. Singer, Sutherland on Statutory Construction § 53.03, p. 233 (rev. 5th ed. 1992). Employing this principle, the Court has previously compared nonanalogous statutes to aid its interpretation of them. See Overstreet v. North Skore Corp., 318 U. S. 125, 131-132 (1943) (using Federal Employers’ Liability Act to aid interpretation of Fair Labor Standards Act of 1938 even though the two Acts were not strictly analogous). In light of these principles of construction, the NLRA may be used to aid our interpretation of the Federal Labor Statute. See also Bureau of Alcohol, Tobacco and Firearms v. FLRA, 464 U. S. 89, 92-93, 96-97 (1983) (analogizing the Federal Labor Relations Authority (FLRA) to the National Labor Relations Board).

A comparison of the two statutes explains why a duty to bargain midterm was included in the NLRA but omitted from the Federal Labor Statute. Under the Statute, but not the NLRA, the Government must subsidize union negotiators. See 5 U. S. C. § 7131(a). Consequently, there is little incentive for union negotiators to streamline their bargaining positions or to avoid extended midterm bargaining. Given this incentive structure, it is difficult to imagine that Congress would obligate Government agencies to bargain midterm, for such an obligation would likely cause perpetual collective bargaining. Continuous bargaining, however, is contrary to the goal of the FLRA: to promote “effective and efficient” Government, not Government stymied by perpetual bargaining. § 7101(b). Indeed, it was this realization that initially motivated the FLRA to reject the contention that the Federal Labor Statute contained a duty to bargain midterm. See Internal Revenue Service, 17 F. L. R. A. 731, 736-737 (1985) (observing that midterm bargaining would cause continuous bargaining on an issue-by-issue basis).

A duty to bargain midterm was Statute because, in the context of the no-strike regime of federal, labor relations, it would leave the agency-employer at an unfair disadvantage. In the NLRA context, the union that wants to obtain a midterm modification or supplement from an employer who is dead set against it must pay the price of a strike that is costly to it and its members. In the context of the Federal Labor Statute, the union that wants to obtain a midterm modification or supplement need only bargain to an impasse and then hope that the Federal Service Impasses Panel will give it all (or at least some) of what it has requested. Demanding unreciprocated additional benefits is cost free. Thus, a midterm bargaining requirement might motivate a union to “hold [a] matter off until the term agreement is done[,]... initiate the proposal as part of a single-issue negotiation,” and, if an impasse results, force the agency to arbitrate. Ferris, Union-Initiated Mid-Term Bargaining: A Catalyst in Reshaping Conflict Patterns, 5 Negotiation J. 407, 411-412 (Oct. 1989). Again, it is obvious that this incentive structure does not promote “effective and efficient” Government. § 7101(b). Given the language and structure of the Federal Labor Statute, the context in which this language is used and the differences between the Statute and the NLRA, I would hold that the Federal Labor Statute plainly, and justifiably, does not impose a general duty to bargain midterm.

The argues, eral Labor Statute does not impose a general obligation to bargain midterm, agencies nevertheless must bargain over union-initiated proposals to include in term agreements midterm bargaining provisions. In other words, unions may propose that agency-employers agree to obligate themselves contractually to bargain midterm. In the private sector, the duty to bargain means only that the employer and the exclusive representative bargain over something in good faith. In the public sector, however, the duty to bargain over a proposal can have very different consequences: Unions may force an agency into binding arbitration by bargaining to impasse. § 7119(c)(5)(B)(iii). Therefore, by imposing a duty to bargain over midterm bargaining clauses, the FLRA is, at the very least, taking the choice of whether to bargain midterm out of a reluctant federal employer’s hands, and placing it into the hands of the Federal Service Impasses Panel, a result that seems inconsistent with the Federal Labor Statute’s goals of promoting “effective and efficient Government.” § 7101(b).

There is, moreover, no statutory source for a duty to bargain over contractual requirements to bargain midterm. Section 7117(a)(1) directs an agency to bargain over “matters which are the subject of any rule or regulation only if the rule or regulation is not a Government-wide rule or regulation” but only “to the extent not inconsistent with any Federal law.” The FLRA has interpreted this section to impose a duty on agencies to bargain over only proposals relating to conditions of employment. See Brief for Petitioner FLRA in No. 97-1243, p. 37. It is not apparent, however, how bargaining over a contractual requirement to bargain midterm is a “mattefr] . . . affecting working conditions.” See 5 U. S. C. §7103(a)(14) (defining “conditions of employment”). More important, because Congress, through the Federal Labor Statute, chose not to require agencies to bargain midterm, it is “inconsistent with... Federal law” for the FLRA to require bargaining over a contractual requirement to bargain midterm. As I read the Statute, Congress has clearly rejected such a requirement.

Even if I agreed with the Court that the Federal Labor Statute is ambiguous with respect to the duty to bargain midterm, I would not defer in this suit to the FLRA’s interpretation of the Statute pursuant to Chevron U. S. A Inc. v. Natural Resources Defense Council, Inc., 467 U. S. 837, 842-843 (1984).

We observed in Good Samaritan Hospital v. U. S. 402 (1993), that when an agency alters its interpretation of a statute, its revised interpretation may be entitled to less deference than a position consistently held. We explained:

“The Secretary is not estopped from changing a view she believes to have been grounded upon a mistaken legal interpretation. Indeed, an administrative agency is not disqualified from changing its mind; and when it does, the courts still sit in review of the administrative decision and should not approach the statutory construction issue de novo and without regard to the administrative understanding of the statutes. On the other hand, the consistency of an agency’s position is a factor in assessing the weight that position is due. As we have stated: An agency interpretation of a relevant provision which conflicts with the agency’s earlier interpretation is “entitled to considerably less deference” than a consistently held agency view.’ INS v. Cardoza-Fonseca, 480 U. S. 421, 446, n. 30 (1987). How much weight should be given to the agency’s views in such a situation, and in particular where its shifts might have resulted from intervening and possibly erroneous judicial decisions and its current position from one of our own rulings, will depend on the facts of individual cases.” Id., at 417 (some citations and internal quotation marks omitted).

See also INS v. Cardoza-Fonseca, 480 U. S. 421, 446-447, and n. 30 (1987) (rejecting agency interpretation of statute on ground that interpretation was not consistent with congressional intent, and agency’s interpretation was not entitled to heightened deference because it had been inconsistent over time); Federal Election Comm’n v. Democratic Senatorial Campaign Comm., 454 U. S. 27, 37 (1981) (observing that the "thoroughness, validity, and consistency of an agency’s reasoning are factors that bear upon the amount of deference to be given an agency’s ruling,” but ultimately deferring to inconsistent agency position); see also Watt v. Alaska, 451 U. S. 259, 272-273 (1981) (holding that agency’s interpretation of amendment that was contemporaneous with amendment’s passage was entitled to considerably more deference than agency’s current, inconsistent interpretation).

Here, the FLRA changed its position on the precise matter that we have been asked to consider — whether agencies have a duty to bargain midterm under the Federal Labor Statute — and did so in response to a judicial decision. Initially, the FLRA determined that the Statute did not impose a duty to bargain midterm, see Internal Revenue Service, 17 F. L. R. A. 731 (1985), but it came to the opposite conclusion after the D. C. Circuit rejected this reading of the Statute, see National Treasury Employees Union v. FLRA, 810 F. 2d 295 (1987) (holding the Statute required midterm bargaining); Internal Revenue Service, 29 F. L. R. A. 162, 166 (1987) (adopting D. C. Circuit’s reading of the Statute). At the time it reversed course, the FLRA offered only a scant explanation for its sudden interpretive shift. It merely stated that it agreed with the D. C. Circuit’s holdings and concluded, “based on the court’s decision and in agreement with the Administrative Law Judge,” that the IRS had im-permissibly refused to bargain over a midterm proposal. Id., at 165-166, 168. The only apparent reason for the agency’s shift in interpretation was the D. C. Circuit’s decision. In this circumstance, the agency’s interpretation of the Statute is entitled to less deference. See Good Samaritan Hospital v. Shalala, supra, at 417. This lesser standard of deference seems particularly appropriate here because we have recognized some limits on the FLRA’s interpretive powers. See Bureau of Alcohol, Tobacco and Firearms v. FLRA, 464 U. S., at 108. Accordingly, we should endeavor to find the most plausible construction of the Federal Labor Statute and examine the Secretary’s current interpretation in light of this construction.

The FLRA currently interprets to impose a duty on federal agencies to negotiate midterm those union-initiated proposals that are not covered in the term agreement unless the union has clearly waived its right to bargain midterm. See Brief for Petitioner FLRA in No. 97-1243, at 18-20; see Department of Navy, Marine Corps Logistics Base v. FLRA, 962 F. 2d 48, 56 (CADC 1992) (outlining FLRA position). This is not, however, the most plausible construction of the Statute. For the reasons previously discussed, there is no language in the Statute expressing a general duty to bargain midterm. Moreover, to the extent that the FLRA has codified exceptions to a generalized duty to bargain midterm, those exceptions are defined out of whole cloth; there is nothing in the text of the Federal Labor Statute that suggests limits on a duty to bargain midterm. For these reasons, even if there were some ambiguity in the Federal Labor Statute, I would hold that the agency’s interpretation of the Federal Labor Statute is inferior to the natural, and most plausible, reading of that Statute — that there is no general duty to bargain midterm. See Good Samaritan Hospital v. Shalala, supra, at 417; INS v. Cardoza-Fonseca, supra, at 446-447, and n. 30. I respectfully dissent and would affirm the decision of the Fourth Circuit.


source: Caselaw Access Project

author: Per Curiam. Justice Souter, Justice Breyer,

license: Public Domain

text:
    FEDERAL REPUBLIC OF GERMANY et al. v. UNITED STATES et al.
    No. 127, Orig. (A-736).
    Decided March 3, 1999
   Per Curiam.

The motion of the Federal Republic of Germany et al. (plaintiffs) for leave to file a bill of complaint and the motion for preliminary injunction against the United States of America and Jane Dee Hull, Governor of the State of Arizona, both raised under this Court’s original jurisdiction, are denied. Plaintiffs’ motion to dispense with printing requirements is granted. Plaintiffs seek, among other relief, enforcement of an order issued this afternoon by the International Court of Justice, on its own motion and with no opportunity for the United States to respond, directing the United States to prevent Arizona’s scheduled execution of Walter LaGrand. Plaintiffs assert that LaGrand holds German citizenship. With regard to the action against the United States, which relies on the ex parte order of the International Court of Justice, there are imposing threshold barriers. First, it appears that the United States has not waived its sovereign immunity. Second, it is doubtful that Art. Ill, § 2, cl. 2, provides an anchor for an action to prevent execution of a German citizen who is not an ambassador or consul. With respect to the action against the State of Arizona, as in Breard v. Greene, 523 U. S. 371, 377 (1998) (per curiam), a foreign government’s ability here to assert a claim against a State is without evident support in the Vienna Convention and in probable contravention of Eleventh Amendment principles. This action was filed within only two hours of a scheduled execution that was ordered on January 15,1999, based upon a sentence imposed by Arizona in 1984, about which the Federal Republic of Germany learned in 1992. Given the tardiness of the pleas and the jurisdictional barriers they implicate, we decline to exercise our original jurisdiction.

Justice Souter,

with whom Justice Ginsburg joins,

concurring.

I join in the foregoing order, subject to the qualification that I do not rest my decision to deny leave to file the bill of complaint on any Eleventh Amendment principle. In exercising my discretion, I have taken into consideration the position of the Solicitor General on behalf of the United States.

Justice Breyer,

with whom Justice Stevens joins,

dissenting.

The Federal Republic of Germany et al. (Germany) has filed a motion for leave to file a complaint, seeking as relief an injunction prohibiting the execution of Walter LaGrand pending final resolution of Germany’s case against the United States in the International Court of Justice (ICJ) — a case in which Germany claims that Arizona’s execution of LaGrand violates the Vienna Convention. Germany also seeks a stay of that execution “pending the Court’s disposition of the motion for leave to file an original bill of complaint after a normal course of briefing and deliberation on that motion.” Motion for Leave to File a Bill of Complaint and for a Temporary Restraining Order or Preliminary Injunction 2 (Motion). The ICJ has issued an order “indicating]” that the “United States should take all measures at its disposal to ensure that Walter LaGrand is not executed pending the final decision in these [ICJ] proceedings.” ¶ 9, id., at 6-7.

The Solicitor General has filed a letter in which he opposes any stay. In his view, the “Vienna Convention does not furnish a basis for this Court to grant a stay of execution,” and “an order of the International Court of Justice indicating provisional measures is not binding and does not furnish a basis for judicial relief.” The Solicitor General adds, however, that he has “not had time to read the materials thoroughly or to digest the contents.” Letter from Solicitor General Waxman filed Mar. 3,1999, with Clerk of this Court.

Germany’s filings come at what is literally the eleventh hour. Nonetheless, Germany explains that it did not file its case in the ICJ until it learned that the State of Arizona had admitted that it was aware, when LaGrand was arrested, that he was a German national. That admission came only eight days ago, and the ICJ issued its preliminary ruling only today. Regardless, in light of the fact that both the ICJ and a sovereign nation have asked that we stay this case, or “indicate[d]” that we should do so, Motion 6,1 would grant the preliminary stay that Germany requests. That stay would give us time to consider, after briefing from all interested parties, the jurisdictional and international legal issues involved, including further views of the Solicitor General, after time for study and appropriate consultation.

The Court has made Germany’s motion for a preliminary stay moot by denying its motion to file its complaint and "declining] to exercise” its original jurisdiction in light of the “tardiness of the pleas and the jurisdictional barriers they implicate.” Ante, at 112. It is at least arguable that Germany’s reasons for filing so late are valid, and the jurisdictional matters are arguable. Indeed, the Court says that it is merely “doubtful that Art. Ill, §2, cl. 2, provides an anchor” for the suit and that a foreign government’s ability to assert a claim against a State is “without evident support in the Vienna Convention and in probable contravention of Eleventh Amendment principles.” Ante, at 112' (emphasis added). The words “doubtful” and “probable,” in my view, suggest a need for fuller briefing.

For these reasons I a


author: Per Curiam. Justice Souter, Justice Stevens,

text:
    STEWART, DIRECTOR, ARIZONA DEPARTMENT OF CORRECTIONS, et al. v. LaGRAND
    No. A-735 (98-1412).
    Decided March 3, 1999
   Per Curiam.

Walter LaGrand and Karl LaGrand were each convicted of first-degree murder, attempted murder in the first degree, attempted armed robbery, and two counts of kidnaping. The Arizona Supreme Court gave a detailed account of the crime in Walter LaGrand’s appeal. See State v. LaGrand, 153 Ariz. 21, 23-24, 734 P. 2d 563, 565-566 (1987). Following a jury trial, both Karl LaGrand and Walter LaGrand were convicted on all charges and sentenced to death. The Arizona Supreme Court affirmed the convictions and sentences. State v. LaGrand, 152 Ariz. 483, 733 P. 2d 1066 (1987) (Karl LaGrand); State v. LaGrand, supra (Walter LaGrand). Subsequently, we denied the LaGrands’ petitions for certiorari. See 484 U. S. 872 (1987).

The LaGrands then filed petitions corpus pursuant to 28 U. S. C. §2254. Until then, Walter LaGrand had been represented by Bruce Burke, a Tucson lawyer. Before appointing Burke as counsel in the habeas proceeding, however, the District Court required Burke to discuss all possible claims of ineffective assistance of counsel with Walter LaGrand and to file a status report with the court. See 133 F. 3d 1253, 1269 (CA9 1998). Walter La-Grand informed Burke that he did not desire a new attorney and requested that Burke continue to represent him. Ibid. Nevertheless, after Burke learned that Karl LaGrand was pursuing ineffective-assistanee-of-counsel claims, Burke moved to withdraw as counsel. The District Court denied this motion on the ground that ‘Walter LaGrand entered a waiver of any potential claims of ineffective assistance of counsel and Mr. Burke indicated to the Court that he believes no such grounds existed.” LaGrand v. Lewis, 883 F. Supp. 451, 456, n. 3 (1995). The Ninth Circuit affirmed, holding that “[w]hen Walter waived the offer of new counsel, he was waiving the benefits of new representation, among which would potentially have been the presentation of this sort of [ineffective-assistance claim].” 133 F. 3d, at 1269.

Among the claims a writ of habeas corpus was the claim that execution by lethal gas constituted cruel and unusual punishment under the Eighth Amendment to the United States Constitution. The District Court found the claim to be proeedurally defaulted because Walter LaGrand had failed to raise it either on direct appeal or in his petition for state postconviction relief, when the sole method of execution was by way of lethal gas. On appeal, the Ninth Circuit did not reach the issue of procedural default because it found the claim was not ripe until and unless LaGrand chose gas as his method of execution. Id., at 1264. The petition for writ of habeas corpus was denied. Id., at 1269.

In February 1999, Karl LaGrand filed a successive state petition for postconviction relief raising the claim that execution by lethal gas constituted cruel and unusual punishment. The trial court found the claim moot and precluded due to Karl LaGrand’s failure to raise the claim in prior state court proceedings, and the Arizona Supreme Court denied review. Karl LaGrand again raised the claim in a second federal habeas corpus petition. The District Court again found the claim proeedurally defaulted and concluded that Karl LaGrand had failed to establish cause and prejudice or a fundamental miscarriage of justice to excuse the default. The District Court denied that petition, but the Court of Appeals reversed.

The Ninth Circuit held that Karl LaGrand’s lethal gas claim was proeedurally barred but found cause and prejudice to excuse the default. The court concluded that Karl LaGrand’s failure to raise the lethal gas claim was excused because there was no legal or factual basis for the elaim when he pursued his direct appeal in state court. Prejudice was shown because he was now faced with execution by a method the Ninth Circuit had previously found to be unconstitutional.

The Ninth Circuit also addressed the State’s argument that Karl LaGrand’s choice of execution method constituted a waiver of his current claim. According to the Ninth Circuit, its precedent dictated that “Eighth Amendment protections may not be waived, at least in the area of capital punishment.” See LaGrand v. Stewart, 173 F. 3d 1144, 1148 (1999). As part of its ultimate order, the Court of Appeals stayed Karl LaGrand’s execution and enjoined Arizona “from executing Karl Hinze LaGrand, or anyone similarly situated, by means of lethal gas.” Id., at 1149. The State filed an application to vacate the stay, which we granted. Subsequent^/, Karl LaGrand’s lawyers moved to clarify our order to determine whether the Ninth Circuit’s injunction was still in place. We denied this motion. 525 U. S. 1174 (1999). At the last moment, Karl LaGrand requested the use of lethal injection, which the State allowed, and the validity of the Ninth Circuit’s injunction was not tested.

This case followed. Like Karl filed a petition for writ of habeas corpus challenging lethal gas as a cruel and unusual form of execution. The District Court declined to follow the Ninth Circuit’s previous opinion in LaGrand v. Stewart, No. 99-99004 (Feb. 23, 1999), concluding that our lifting of the stay of execution necessarily vacated the merits of the Ninth Circuit’s decision. The District Court also denied a certificate of appealability, concluding that “the issue of procedural default of Petitioner’s lethal gas challenge is not debatable among jurists of reason.” Pet. for Cert. 5.

The Ninth Circuit panel granted a certificate of appealability and proceeded to the merits of the case. It concluded that our order lifting the stay of execution in LaGrand v. Stewart, No. 99-99004 (Feb. 23, 1999), did not pass upon the merits of the panel’s opinion and concluded that its reasoning remained sound. It then denied the stay of execution but restrained and enjoined the State of Arizona from executing Walter LaGrand by means of lethal gas.

The a application to lift the Court of Appeals’ injunction. We now grant the petition for certiorari, summarily reverse the judgment, and vacate the Court of Appeals’ injunctive order.

Walter LaGrand, by his actions, has waived his claim that execution by lethal gas is unconstitutional. At the time Walter LaGrand was sentenced to death, lethal gas was the only method of execution available in Arizona, but the State now provides inmates a choice of execution by lethal gas or lethal injection, see Ariz. Rev. Stat. Ann. § 13-704(B) (Supp. 1998) (creating a default rule of execution by lethal injection). Walter LaGrand was afforded this choice and decided to be executed by lethal gas. On March 1, 1999, Governor Hull of Arizona offered Walter LaGrand an opportunity to rescind this decision and select lethal injection as his method of execution. Walter LaGrand, again, insisted that he desired to be executed by lethal gas. By declaring his method of execution, picking lethal gas over the State’s default form of execution — lethal injection — Walter LaGrand has waived any objection he might have to it. See, e.g., Johnson v. Zerbst, 304 U. S. 458, 464 (1938). To hold otherwise, and to hold that Eighth Amendment protections cannot be waived in the capital context, would create and apply a new procedural rule in violation of Teague v. Lane, 489 U. S. 288 (1989).

b — ( ! — [

In addition, Walter LaGrand’s claims are procedurally defaulted, and he has failed to show cause to overcome this bar. See Coleman v. Thompson, 501 U. S. 722, 750 (1991). At the time of Walter LaGrand’s direct appeal, there was sufficient debate about the constitutionality of lethal gas executions* that Walter LaGrand cannot show cause for his failure to raise this claim. Arguments concerning the constitutionality of lethal gas have existed since its introduction as a method of execution in Nevada in 1921. See H. Bedau, The Death Penalty in America 16 (3d ed. 1982). In the period immediately prior to Walter LaGrand’s direct appeal, a number of States were reconsidering the use of execution by lethal gas, see Gray v. Lucas, 710 F. 2d 1048, 1059-1061 (CA5 1983) (discussing evidence presented by the defendant and changes in Nevada’s and North Carolina’s methods of execution), and two United States Supreme Court Justices had expressed their views that this method of execution was unconstitutional, see Gray v. Lucas, 463 U. S. 1237, 1240-1244 (1983) (Marshall, J., joined by Brennan, J., dissenting from denial of certiorari). In addition, lethal gas executions have been documented since 1937, when San Quentin introduced it as an execution method, and studies of the effect of execution by lethal gas date back to the 1950’s. See Bedau, supra, at 16.

III

Walter LaGrand’s alternative argument, that his ineffeetive-assistanee-of-counsel claim suffices as cause, also fails. Walter LaGrand specifically waived the claim that his trial counsel was ineffective, representing to the District Court prior to filing his first federal habeas petition that there was no basis for such claims. See LaGrand v. Lewis, 883 F. Supp., at 456, n. 3; 133 F. 3d, at 1269. In addition, the ineffective-assistance claim is, itself, procedurally defaulted. The Arizona court held that Walter LaGrand’s ineffective-assistance arguments were barred pursuant to a state procedural rule, see State v. LaGrand, No. CR-07426, Minute Entry (Pima County Super. Ct., Mar. 2, 1999), and Walter LaGrand has failed to demonstrate cause or prejudice for his failure to raise these claims on direct review.

Accordingly, the judgment of the United States Court of Appeals for the Ninth Circuit is reversed, and its injunctive order is vacated.

It is so ordered.

Justice Souter,

with whom Justice Ginsburg and Justice Breyer join,

concurring in part and concurring in the judgment.

I join Part I of the per curiam opinion, on the understanding that petitioner makes no claim that death by lethal injection would be cruel and unusual under the Eighth Amendment. I do not reach any issue of the applicability of Teague v. Lane, 489 U. S. 288 (1989).

Justice Stevens,

dissenting.

In my opinion the answer to the question whether a capital defendant may consent to be executed by an unacceptably torturous method of execution is by no means clear. I would not decide such an important question without full briefing and argument.

I, therefore, respectfully dissent.


author: Per Curiam. Justice Stevens,

text:
    SCHWARZ v. NATIONAL SECURITY AGENCY et al.
    No. 98-7771.
    Decided March 8, 1999

      Together with No. 98-7782, Schwarz v. Executive Office of the President et al., also on motion for leave to proceed informa pauperis.

   Per Curiam.

Pro se petitioner Schwarz seeks leave to proceed informa 'pauperis under Rule 39 of this Court. We deny this request as frivolous pursuant to Rule 39.8. Schwarz is allowed until March 29, 1999, within which to pay the docketing fee required by Rule 38 and to submit her petitions in compliance with this Court’s Rule 33.1. We also direct the Clerk not to accept any further petitions for certiorari from Schwarz in noncriminal matters unless she pays the doeketing fee required by Rule 38 and submits her petition in compliance with Rule 33.1.

Schwarz has repeatedly abused this Court’s certiorari process. On December 14, 1998, we invoked Rule 39.8 to deny Schwarz informa pauperis status with respect to four petitions for certiorari. See Schwarz v. Federal Bureau of Investigation, 525 U. S. 1053; Schwarz v. National Institute of Corrections, 525 U. S. 1053; Schwarz v. United States Parole Comm’n, 525 U. S. 1053; Schwarz v. National Archives and Records Administration, 525 U. S. 1053. Before that time, Schwarz had filed 29 petitions for certiorari, all of which were both patently frivolous and had been denied without recorded dissent. The instant petitions for certio-rari thus constitute Schwarz’s 34th and 35th frivolous filings with this Court.

We enter the order barring prospective filings for the reasons discussed in Martin v. District of Columbia Court of Appeals, 506 U. S. 1 (1992) (per curiam). Schwarz’s abuse of the writ of certiorari has been in noncriminal cases, and we limit our sanction accordingly. The order therefore will not prevent Schwarz from petitioning to challenge criminal sanctions which might be imposed on her. Similarly, because Schwarz has not abused this Court’s extraordinary writs procedures, the order will not prevent her from filing nonfrivolous petitions for extraordinary writs. The order will, however, allow this Court to devote its limited resources to the claims of petitioners who have not abused our certiorari process.

It is so ordered.

Justice Stevens,

dissenting.

For reasons previously stated, see Martin v. District of Columbia Court of Appeals, 506 U. S. 1, 4 (1992) (Stevens, J., dissenting), and cases cited, I respectfully dissent.


author:
      Per Curiam. Justice Ginsburg,
      Justice Stevens,

text:
    CENTRAL STATE UNIVERSITY v. AMERICAN ASSOCIATION OF UNIVERSITY PROFESSORS, CENTRAL STATE UNIVERSITY CHAPTER
    No. 98-1071.
    Decided March 22, 1999
   Per Curiam.

Petitioner Central State University challenges a ruling of the Ohio Supreme Court striking down on equal protection grounds a state law requiring public universities to develop standards for professors’ instructional workloads and exempting those standards from collective bargaining. We grant the petition and reverse the judgment of the Ohio Supreme Court.

In an effort to address the decline in the amount of time that public university professors devoted to teaching as opposed to researching, the State of Ohio enacted Ohio Rev. Code Ann. § 3345.45 (1997). This provision provides in relevant part:

“On or before January 1, 1994, the Ohio board of regents jointly with all state universities ... shall develop standards for instructional workloads for full-time and part-time faculty in keeping with the universities’ missions and with special emphasis on the undergraduate learning experience....
“On or before June 30,1994, the board of trustees of each state university shall take formal aetion to adopt a faculty workload policy consistent with the standards developed under this section. Notwithstanding [other provisions making faculty workload at public universities a proper subject for collective bargaining], the policies adopted under this section are not appropriate subjects for collective bargaining. Notwithstanding [these collective-bargaining provisions], any policy adopted under this section by a board of trustees prevails over any conflicting provisions of any collective bargaining agreement between an employees organization and that board of trustees.”

In 1994, petitioner Central State University adopted a workload policy pursuant to § 8345.45 and notified respondent, the certified collective-bargaining agent for Central State’s professors, that it would not bargain over the issue of faculty workload. Respondent subsequently filed a complaint in Ohio state court for declaratory and injunctive relief, alleging that §3345.45 created a class of public employees not entitled to bargain regarding their workload and that this classification violated the Equal Protection Clauses of the Ohio and United States Constitutions.

By a divided vote, respondent that §3345.45 deprived public university professors the equal protection of the laws. See 83 Ohio St. 3d 229, 699 N. E. 2d 463 (1998). The court acknowledged that Ohio’s purpose in enacting the statute was legitimate and that all legislative enactments enjoy a strong presumption of constitutionality. Id., at 234-235, 699 N. E. 2d, at 468-469. Nonetheless, the court held that §3345’s collective-bargaining exemption bore no rational relationship to the State’s interest in correcting the imbalance between research and teaching at its public universities. See id., at 236-239, 699 N. E. 2d, at 469-470. The State had argued that achieving uniformity, consistency, and equity in faculty workload was necessary to recapture the decline in teaching, and that collective bargaining produced variation in workloads across universities in departments having the same academic mission. Id., at 236, 699 N. E. 2d, at 469. Reviewing evidence that the State had submitted in support of this contention, the Ohio Supreme Court held that “there is not a shred of evidence in the entire record which links collective bargaining with the decline in teaching over the last decade, or in any way purports to establish that collective bargaining contributed in the slightest to the lost faculty time devoted to undergraduate teaching.” Ibid. Based on this determination, the court concluded that the State had failed to show “any rational basis for singling out university faculty members as the only public employees . . . precluded from bargaining over their workload.” Id., at 237, 699 N. E. 2d, at 470.

The dissenting justices pointed out that the majority’s methodology and conclusion conflicted with this Court’s standards for rational-basis review of equal protection challenges. See id., at 238-241, 699 N. E. 2d, at 471-472. In their view, “that collective bargaining has not caused the decline in teaching proves nothing in assessing whether the faculty workload standards imposed pursuant to R. C. 3345.45 legitimately relate to that statute’s purpose of restoring losses in undergraduate teaching activity.” Id., at 238, 699 N. E. 2d, at 471 (emphasis in original). The majority’s review of the State’s evidence was therefore “inconsequential” to the only question in the case: whether the challenged legislative action was arbitrary or irrational. See id., at 239-242, 699 N. E. 2d, at 472-473. Answering this question, the dissent concluded that imposing uniform workload standards via the exemption “is not an irrational means of effecting an increasing in teaching activity. In fact, it was probably the most direct means of accomplishing that objective available to the General Assembly.” Id., at 241, 699 N. E. 2d, at 473.

agree the Ohio Supreme Court’s holding cannot be reconciled with the requirements of the Equal Protection Clause. We have repeatedly held that “a classification neither involving fundamental rights nor proceeding along suspect lines... cannot run afoul of the Equal Protection Clause if there is a rational relationship between disparity of treatment and some legitimate governmental purpose.” Heller v. Doe, 509 U. S. 312, 319-321 (1993) (citations omitted); FCC v. Beach Communications, Inc., 508 U. S. 307, 313-314 (1993); Nordlinger v. Hahn, 505 U. S. 1, 11 (1992). The legislative classification created by §3345.45 passes this test. One of the statute’s objectives was to increase the time spent by faculty in the classroom; the imposition of a faculty workload policy not subject to collective bargaining was an entirely rational step to accomplish this objective. The legislature could quite reasonably have concluded that the policy animating the law would have been undercut and likely varied if it were subject to collective bargaining. The State, in effect, decided that the attainment of this goal was more important than the system of collective bargaining that had previously included university professors. See Vance v. Bradley, 440 U. S. 93 (1979) (upholding a similar enactment of Congress providing that federal employees covered by the Foreign Service retirement system, but not those covered by the Civil Service retirement system, would be required to retire at age 60).

The fact that the show that collective bargaining in the past had lead to the decline in classroom time for faculty does not detract from the rationality of the legislative decision. See Heller, supra, at 320 (“A State ... has no obligation to produce evidence to sustain the rationality of a statutory classification”). The legislature wanted a uniform workload policy to be in place by a certain date. It could properly conclude that collective bargaining about that policy in the future would interfere with the attainment of this end. Under our precedent, this is sufficient to sustain the exclusion of university professors from the otherwise general collective-bargaining scheme for public employees.

The petition for a writ of certiorari is granted, the judgment of the Supreme Court of Ohio is reversed, and the case is remanded for further proceedings not inconsistent with this opinion.

It is so ordered.

Justice Ginsburg,

with whom Justice Breyer joins,

concurring.

I join the per curiam opinion recognizing, as the Court did in Nordlinger v. Hahn, 505 U. S. 1 (1992), that for the mine run of economic regulations that do not trigger heightened scrutiny, it is appropriate to inquire whether the lawmaker’s classification

“rationally furthers a legitimate state interest. In general, the Equal Protection Clause is satisfied so long as there is a plausible policy reason for the classification, see United States Railroad Retirement Bd. v. Fritz, 449 U. S. 166, 174, 179 (1980), the legislative facts on which the classification is apparently based rationally may have been considered to be true by the governmental decisionmaker, see Minnesota v. Clover Leaf Creamery Co., 449 U. S. 456, 464 (1981), and the relationship of the classification to its goal is not so attenuated as to render the distinction arbitrary or irrational, see Cleburne v. Cleburne Living Center, Inc., 473 U. S. [432, 446 (1985)].” Id., at 11.

I also recognize that a summary disposition is not a fit occasion for elaborate discussion of our rational-basis standards of review. See Hohn v. United States, 524 U. S. 236, 251 (1998) (opinions rendered without full briefing or argument have muted precedential value). Justice Stevens emphasizes that this case is of dominant importance to the state universities in Ohio, see post, at 131 (dissenting opinion); in that light, the Ohio Supreme Court is of course at liberty to resolve the matter under the Ohio Constitution.

Justice Stevens,

dissenting.

While surveying the flood of law desk, I have sometimes wondered whether law professors have any time to spend teaching their students about the law. Apparently, a majority of the legislators in Ohio had a similar reaction to the work product of faculty members in Ohio’s several state universities. By enacting Ohio Rev. Code Ann. §3345.45 (1997), the legislators decided to do something about what they perceived to be a problem that neither the State Board of Regents nor the trustees of those universities could solve for themselves. Section 3345.45 directs that board and those trustees to develop standards and policies for instructional workloads for university faculty members. It provides that faculty members of public universities, unlike any other group of public employees, may not engage in collective bargaining about their workload.

How the intellectually gifted selected teaching as their profession shall allocate their professional endeavors between research and teaching is a matter of great importance to themselves, to their students, and to the consumers of their scholarly writing. Who shall decide how the balance between research and teaching shall be struck presents a similarly important question.

Prior to § 3345.45, such decisions was constrained only by the teaching or research assignments imposed by their superiors in the educational establishment. By its enactment of §3345.45, the Ohio General Assembly has asserted an interest in playing a role in making these decisions. As a result of the filing of this lawsuit, first the Ohio courts and now this Court have also participated in this decisional process.

Buried beneath lies a debate over academic freedom. In my judgment the relevant sources of constraint on that freedom are (1) the self-discipline of the teacher, (2) her faculty or department supervisors, (3) the trustees of the university where she teaches, (4) the State Board of Regents, (5) the state legislature, (6) state judges, and, finally, (7) the judges sitting on this Court. I omit any reference to the collective-bargaining representatives of the teachers because, as everyone agrees, there is no evidence that collective bargaining has had any effect on the increased emphasis on research over teaching that gave rise to the enactment of § 3345.45.

the mandate nor the inclination to assess whether the decision of the Ohio General Assembly to enact §3345.45 was wise or unwise. I am equally convinced that this Court should not review the role played by the Ohio judiciary in deciding how to resolve this dispute. The case is important to the state universities in Ohio, but it has little, if any, national significance. Seven of the eleven Ohio judges who reviewed the case concluded that the Ohio statute violated the Ohio Constitution. Indeed, the majority opinion of the Ohio Supreme Court did not cite a single case decided by this Court.

If the State Supreme Court did misconstrue Protection Clause of the Federal Constitution, the impact of that arguable error is of consequence only in the State of Ohio, and will, in any event, turn out to be totally harmless if that court adheres to its previously announced interpretation of the State Constitution. I therefore believe that the Court should deny the petition for certiorari.

If the ease does warrant be decided summarily. It surely should not be disposed of simply by quoting descriptions of the rational-basis standard of review articulated in four nonunanimous opinions of this Court deciding wholly dissimilar issues. Cases applying the rational-basis test have described that standard in various ways. Compare, e. g., the Court’s opinions in F. S. Royster Guano Co. v. Virginia, 253 U. S. 412, 415 (1920), and Cle-burne v. Cleburne Living Center, Inc., 473 U. S. 432, 446 (1985), with the majority opinion in Railroad Retirement Bd. v. Fritz, 449 U. S. 166, 174-177 (1980). Indeed, in the latter case there were three opinions, each of which formulated the rational-basis standard differently from the other two. Ibid. (majority opinion); id., at 180-181 (Stevens, J., concurring in judgment); id., at 183-184 (Brennan, J., dissenting).

The Court’s disposition of this case seems to assume that an incantation of the rational-basis test, together with speculation that collective bargaining might interfere with the adoption of uniform faculty workload policies, makes it unnecessary to consider any other facts or arguments that might inform an exercise of judgment about the underlying issue. While I am not prepared to express an opinion about the ultimate merits of the case, I can identify a serious flaw in the Court’s mechanistic analysis. The Court assumes that the question improperly answered by the Ohio Supreme Court is whether collective bargaining may interfere with the attainment of a uniform workload policy. But that is not the issue, because this case involves the Equal Protection Clause, and not the principles of substantive due process.

The question posed by this case is whether there is a rational basis for discriminating against faculty members by depriving them of bargaining assistance that is available to all other public employees in the State of Ohio. Even the Court’s speculation about the possible adverse consequences of collective bargaining about faculty workload does not explain why collective bargaining about the workloads of all other public employees might not give rise to the same adverse consequences arising from lack of statewide uniformity. Indeed, I would suppose that the interest in protecting the academic freedom of university faculty members might provide a rational basis for giving them more bargaining assistance than other public employees. In any event, no one has explained why there is a rational basis for concluding that they should receive less.

I respectfully dissent.

      As part of the same bill codified at §3345, the Ohio General Assembly also enacted uncodified legislation providing that the Board of Regents shall work with state universities "to ensure that no later than [the] fall term 1994, a minimum ten percent increase in statewide undergraduate teaching activity be achieved to restore the reductions experienced over the past decade. Notwithstanding section 3345.46 of the Revised Code, any collective bargaining agreement in effect on the effective date of this act shall continue in effect until its expiration date.” Amended Substitute House Bill No. 152, §84.14, 145 Ohio Laws 4539 (effective July 1,1993).

       After reviewing studies prepared by the Legislative Office of Education Oversight, by a Special Task Force on Challenges & Opportunities for Higher Education in Ohio, by the Regents’ Advisory Committee on Faculty Workload Standards & Guidelines, by the Regents’ Advisory Committee on Faculty Workload, and by the Ohio Board of Regents, as well as statistical data collected from Ohio colleges and universities, the Ohio Supreme Court concluded:
      upon State University], and all other evidence contained in the record, and can conclude with confidence that there is not a shred of evidence in the entire record which links collective bargaining with the decline in teaching over the last decade, or in any way purports to establish that collective bargaining contributed in the slightest to the lost faculty time devoted to undergraduate teaching. Indeed, these reports appear to indicate that factors other than collective bargaining are responsible for the decline in teaching activity.” 83 Ohio St. 3d 229, 236, 699 N. E. 2d 463, 469 (1998).

      The seven include the four from the majority opinion of the State Supreme Court and the three judges of the Court of Appeals who originally struck down §3345.45.
      Supreme Court held that the statute violated Article I, §2, of the Ohio Constitution, which provides:
      people. Government is instituted for their equal protection and benefit, and they have the right to alter, reform, or abolish the same, whenever they may deem it necessary; no special privileges or immunities shall ever be granted, that’may not be altered, revoked, or repealed by the General Assembly.” The court found it unnecessary to consider respondent’s additional arguments based, in part, on other provisions of the State Constitution. Id., at 237, 699 N. E. 2d, at 470.

       In a footnote to the basis eases, the Court made this observation:
      “The most arrogant applied a uniform or consistent test under equal protection principles. And realistically speaking, we can be no more certain that this opinion will remain undisturbed than were those who joined the opinion in Lindsley [v. Natural Carbonic Gas Co., 220 U. S. 61 (1911)], [F. S.] Royster Guano

        Co. [v. Virginia, 253 U. S. 412 (1920)], or any of the other eases referred to in this opinion and in the dissenting opinion.” 449 U. S., at 176-177, n. 10.

         In addition, the Court’s opinion assumes that the ultimate objective of having teachers spend more time in classrooms requires that there be a single workload policy for each of the State’s universities and for each of the subjects taught in those schools, whether Latin, medicine, or astrophysics. I am not at all sure that such an assumption is rational.

       Ohio Rev. Code Ann.4117.03(A)(4) (1998) provides: “Public employees have the right to:... Bargain collectively with their public employers to determine wages, hours, terms and other conditions of employment and the continuation, modification, or deletion of an existing provision of a collective bargaining agreement, and enter into collective bargaining agreements....”


text:
    RIVERA v. FLORIDA DEPARTMENT OF CORRECTIONS
    No. 98-7450.
    Decided March 22, 1999
   Per Curiam.

Pro se petitioner Rivera seeks leave to proceed informa pauperis under Rule 39 of this Court. We deny this request pursuant to Rule 39.8. Rivera is allowed until April 12, 1999, within which to pay the docketing fee required by Rule 38 and to submit his petition in compliance with this Court’s Rule 33.1. We also direct the Clerk not to accept any further petitions for certiorari nor petitions for extraordinary writs from Rivera in noncriminal matters unless he pays the docketing fee required by Rule 38 and submits his petition in compliance with Rule 33.1.

Rivera has abused this Court’s eertiorari and extraordinary writ processes. In January of this year, we twice invoked Rule 39.8 to deny Rivera in forma pauperis status. See Rivera v. Allin, 525 U. S. 1065; In re Rivera, 525 U. S. 1066. At that time, Rivera had filed two petitions for extraordinary writs and eight petitions for certiorari, all of which were both patently frivolous and had been denied without recorded dissent. The instant petition for certio-rari thus constitutes Rivera’s 13th frivolous filing with this Court. He has four additional filings — all of them patently frivolous — currently pending before this Court.

We enter the order barring sons discussed in Martin v. District of Columbia Court of Appeals, 506 U. S. 1 (1992) (per curiam). Rivera’s abuse of the writ of certiorari and of the extraordinary writs has been in noncriminal eases, and so we limit our sanction accordingly. The order therefore will not prevent Rivera from petitioning to challenge criminal sanctions which might be imposed on him. The order, however, will allow this Court to devote its limited resources to the claims of petitioners who have not abused our process.

It is so

Justice Stevens,

dissenting.

For reasons previously stated, see Martin v. District of Columbia Court of Appeals, 506 U. S. 1, 4 (1992) (STEVENS, J., dissenting), and cases cited, I respectfully dissent.