holding that the PLRA “requires exhaustion before the filing of 3 a complaint and that a prisoner does not comply with this requirement by exhausting available 4 remedies during the course of the litigation”
How later courts described this case
- holding that the PLRA “requires exhaustion before the filing of 3 a complaint and that a prisoner does not comply with this requirement by exhausting available 4 remedies during the course of the litigation”
- reconsideration motion challenging Authority’s determination that proposal was arrangement would have been futile where it “seem[ed] clear that the FLRA would have rejected” it given Authority had “repeatedly held negotiable” similar proposals, “including two proposals that [court] view[ed] as indistinguishable ” from proposal at issue (emphasis added)
- “almost sua sponte nature” of agency’s decision coupled with “patent futility of a rehearing petition constitutes an extraordinary circumstance that excuses the ... failure to object”
- failure to file for rehearing was excusable because of *1216 “almost sua sponte” nature of Authority’s decision and because motion for reconsideration would have been futile
Written by the judges who cited it.
The opinion
BUCKLEY, Circuit Judge,
dissenting in part:
In my view, we are without jurisdiction to reach the merits of the appropriate arrangements question. I write separately to express my concern that the court’s opinion represents an imprudent, albeit small, expansion of the “extraordinary circumstances” exception to the requirement that “[n]o objection that has not been urged before the *1199 Authority ... shall be considered by the court.” 5 U.S.C. § 7123 (c).
As the court acknowledges, neither the “almost sua sponte ” nature of the FLRA’s ruling on the appropriate arrangement issue nor the apparent futility of challenging that ruling is, by itself, sufficient to excuse the NLRB’s failure to object. It is true that the NLRB did not have notice that the appropriate arrangement issue would be considered when it initially presented its arguments to the FLRA. But the Board was put on notice when the Authority rendered its decision, and yet it failed to file a motion for reconsideration.
With respect to futility, finding that an extraordinary circumstance exists simply because an objection is likely to be rejected is hardly consonant with the plain meaning of the word “extraordinary.” Moreover, the futility concept is inherently susceptible of expansive applications. For that reason, it threatens to undermine the purposes of section 7123(c), which are to preserve the FLRA’s role as the primary adjudicator in public sector labor disputes and to conserve judicial resources by requiring that litigants raise arguments before the FLRA that might induce the Authority to change its course without judicial intervention. Accordingly, futility should be viewed as an extraordinary circumstance only in extreme situations, as when an agency is bound by court precedent to adhere to a particular position, see NLRB v. Robin American Corp., 667 F.2d 1170, 1171 (5th Cir.1982), or when an agency has steadfastly refused to acquiesce in judicial mandates, see Kitchen Fresh, Inc. v. NLRB, 716 F.2d 351 , 357-58 & n. 13 (6th Cir.1983). No such situation is presented here.
The court nevertheless concludes that, although these two considerations are by themselves inadequate to give rise to an extraordinary circumstance, they add up to such a circumstance when taken together. I recognize that we found this type of synergy to exist in United States Department of the Interior, Minerals Management Service v. FLRA 969 F.2d 1158 , 1161 (D.C.Cir.1992). But Minerals Management presented a truly unique situation that is readily distinguished. In that case, the court determined that a motion for reconsideration was excused because the FLRA had raised an issue sua sponte and recently denied a rehearing petition in a case involving an identical bargaining proposal. See id. Here, by contrast, the Authority’s prior decisions in analogous cases do indicate that a petition for reconsideration by the NLRB would have been an uphill struggle; but the FLRA had not previously ruled on a proposal identical to the one set forth by the Union. To be sure, expanding the Minerals Management holding to the present context is a small step; but it is a step in the wrong direction that I am unwilling to take. The principle embodied in section 7123(c) is an important one and should be protected from erosion by successive expansions of the “extraordinary circumstances” exception, however small each might be.
Finally, I cannot help but note the lack of an institutional perspective inherent in the NLRB’s argument that we should excuse its failure to comply with the requirements of section 7123(c). As the court notes, section 7123(c) is “virtually identical” to section 10(e) of the National Labor Relations Act, 29 U.S.C. § 160 (e). EEOC v. FLRA, 476 U.S. 19, 23 , 106 S.Ct. 1678, 1680 , 90 L.Ed.2d 19 (1986). Accordingly, it is entirely possible that parties will in the future seek to exploit the court’s holding today in an attempt to circumvent the NLRB’s own adjudicatory authority.
I do not reach the merits of the appropriate arrangements issue because I believe that neither I nor my colleagues are empowered to do so.