Federal Regulatory Agencies
Federal Regulatory Agencies
Here's a look at documents from federal regulatory agencies
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NRC Reflects on 2025 Successes
WASHINGTON, Dec. 30 -- The Nuclear Regulatory Commission issued the following news release:* * *
NRC Reflects on 2025 Successes
The Nuclear Regulatory Commission's accomplishments in 2025 underscore the agency's commitment to enabling the safe and secure use of civilian nuclear energy and radioactive materials through efficient and reliable licensing, oversight, and regulation to benefit society and the environment.
"This past year has been one of fast-moving change and accomplishment at the NRC," said Chairman David Wright. "Our priorities in 2025 included implementing requirements in Executive ... Show Full Article WASHINGTON, Dec. 30 -- The Nuclear Regulatory Commission issued the following news release: * * * NRC Reflects on 2025 Successes The Nuclear Regulatory Commission's accomplishments in 2025 underscore the agency's commitment to enabling the safe and secure use of civilian nuclear energy and radioactive materials through efficient and reliable licensing, oversight, and regulation to benefit society and the environment. "This past year has been one of fast-moving change and accomplishment at the NRC," said Chairman David Wright. "Our priorities in 2025 included implementing requirements in ExecutiveOrders and the ADVANCE Act while contributing to interagency efforts to meet broader national energy objectives. We'll build on these achievements in 2026 as we modernize our regulatory approach to safely reach licensing decisions faster, using fewer resources."
Reactor licensing highlights included completing the technical review of the TerraPower construction permit application within 18 months. The NRC also approved the NuScale US460 small modular reactor design, and the first-ever return to operational status for a retired reactor, paving the way for a potential Palisades restart. Additionally, the NRC renewed 13 reactor licenses each for an additional 20 years, preserving 12,000 megawatts on the U.S. power grid.
The NRC's strong 2025 performance also covered nuclear fuel facilities, materials and decommissioning programs. Over the past year, the NRC approved six fuel facility requests. This included continued high-assay, low-enriched uranium operations at the American Centrifuge Plant in Piketon, Ohio (part of the Department of Energy's HALEU demonstration project), as well as approving Urenco USA's enrichment facility in New Mexico to produce higher-enriched U-235 for advanced reactor and accident-tolerant fuel.
The NRC also modernized fuel cycle facility oversight, safely reducing upcoming inspection hours by 40 percent at the Honeywell conversion facility using risk-informed insights. The agency prepared for commercial fusion facilities by laying the foundation for a clear, predictable regulatory framework. The NRC's 2025 success story continued with an innovative 6-month review to license a first-of-a-kind remediation technology to address abandoned uranium mine waste. The agency also authorized Connecticut as the 40th Agreement State, allowing it to license and oversee radioactive materials within its borders.
These accomplishments were driven in large part by an updated mission statement and accompanying implementation guidance.
Significant NRC 2025 Accomplishments Operating Reactors
* The NRC authorized license renewals for 13 reactors in Ohio (1 reactor), South Carolina (4 reactors), Wisconsin (2 reactors), Alabama (3 reactors) and Illinois (3 reactors). Collectively, these 13 reactors will deliver 12,000 megawatts of power to the grid for 20 more years.
* The NRC authorized the restart of the Palisades Nuclear Power plant in Michigan - the first-ever regulatory approval of a reactor to restart after entering decommissioning. The NRC's experience with Palisades is also being applied to two additional reactor restart projects, the Crane Clean Energy Center in Pennsylvania and Duane Arnold Energy Center in Iowa.
* The NRC completed over 700 licensing actions for the 94 nuclear reactors in operation across the United States, 90 percent of which were completed ahead of schedule, reflecting efficiencies driven by the ADVANCE Act and Executive Order 14300. Since implementing these efficiencies, the NRC has lowered project estimates by roughly 40 percent for schedules and 35 percent for staff hours, while continuing to meet safety standards.
New and Advanced Reactors
* The NRC completed review of the construction permit application for TerraPower's Kemmerer Unit 1 facility, the agency's first approval of a non-light water reactor in the last 50 years and the first next-generation advanced power reactor. Kemmerer Unit 1 review was completed in 18 months (nine months ahead of schedule and 11 percent under budget), facilitated in part by changes directed by EO 14300 - specifically, streamlining the Advisory Committee on Reactor Safeguards review and environmental review efficiencies.
* The NRC issued a FY25 construction permit for the Kairos Hermes 2 test reactor facility, a fluoride salt cooled high temperature reactor. This built off work done in FY24 to issue the construction permit for Hermes 1, a very similar design, resulting in a 60 percent reduction in resources between the two reviews and completion in only 10 months.
* The NRC completed its review of NuScale's US460 Standard Design Approval, a light water small modular reactor, in 22 months (two months ahead of schedule and 13 percent under budget).
* The NRC is actively reviewing the construction permit application for Project Long Mott in Texas, establishing an 18-month or shorter schedule for the review.
* The NRC issued a direct final rule extending the expiration of design certifications from 15 (or 20) to 40 years (e.g., extended the AP1000 design certification), and the Commission is considering the Part 53 "Risk-Informed, Technology-Inclusive Regulatory Framework for Commercial Nuclear Plants," proposed rule.
New and Advanced Reactors (Cont.)
* The NRC is actively working with Fermi America on their combined license application and an applicant-led environmental impact statement pilot for a four-unit Westinghouse AP1000 plant in Texas.
* The NRC is actively working with Westinghouse to prepare for an expedited review of an updated Design Certification for the AP1000. Furthermore, the NRC staff is working to ensure the NRC is prepared for the anticipated submittal of 10 new applications.
* The NRC continues to engage with dozens of companies and organizations, including X-Energy, NuScale, University of Illinois-Urbana Champaign, and TerraPower, to support future applications.
Fuel Facilities, Decommissioning, Nuclear Materials, and Environmental Reviews
* The NRC completed over 100 licensing actions this year related to facilities, new fuels, storage, and transportation; and conducted over 150 inspections for fuel facilities and storage and transportation, including 6 new fuel facility approvals and 4 new transportation approvals.
* The NRC delivered robust environmental reviews in less time and with less resources, realizing up to a 50 percent reduction in resources and schedules for license renewal, 40 percent schedule reduction and 50 percent resource reduction for materials reviews, and a 35 percent schedule and 40 percent cost reduction for new reactor reviews.
* The NRC issued a license for a first-of-a-kind remediation technology for abandoned uranium mine waste.
* The NRC issued the Agreement to make Connecticut the 40th Agreement State.
* The NRC completed a fusion vision and strategy, roadmap, and project plan to support development of a regulatory framework to license fusion machines.
* The NRC issued licensing guidance for four emerging medical technologies ensuring consistent licensing across National Materials Program and patient access to new radiotherapies and radiopharmaceuticals.
* * *
The U.S. Nuclear Regulatory Commission was created as an expert, technical agency to protect public health, safety, and security, and regulate the civilian use of nuclear materials, including enabling the deployment of nuclear power for the benefit of society. Among other responsibilities, the agency issues licenses, conducts inspections, initiates and enforces regulations, and plans for incident response. The global gold standard for nuclear regulation, the NRC is collaborating with interagency partners to implement reforms outlined in new Executive Orders and the ADVANCE Act to streamline agency activities and enhance efficiency.
* * *
Original text here: https://www.nrc.gov/sites/default/files/cdn/doc-collection-news/2025/25-071.pdf
Agencies Release Annual Asset-Size Thresholds Under Community Reinvestment Act Regulations
WASHINGTON, Dec. 30 -- The Federal Deposit Insurance Corporation issued the following news release:* * *
Agencies Release Annual Asset-Size Thresholds Under Community Reinvestment Act Regulations
*
The Federal Reserve Board and the Federal Deposit Insurance Corporation today announced the 2026 updated Community Reinvestment Act (CRA) "small bank" and "intermediate small bank" asset-size thresholds.
The CRA regulations establish the framework and criteria by which the relevant agencies assess a financial institution's record of meeting the credit needs of its entire community, including low- ... Show Full Article WASHINGTON, Dec. 30 -- The Federal Deposit Insurance Corporation issued the following news release: * * * Agencies Release Annual Asset-Size Thresholds Under Community Reinvestment Act Regulations * The Federal Reserve Board and the Federal Deposit Insurance Corporation today announced the 2026 updated Community Reinvestment Act (CRA) "small bank" and "intermediate small bank" asset-size thresholds. The CRA regulations establish the framework and criteria by which the relevant agencies assess a financial institution's record of meeting the credit needs of its entire community, including low-and moderate-income neighborhoods, consistent with safe and sound operations. Financial institutions are evaluated under different CRA examination procedures based upon their asset-size classification. The asset-size thresholds are adjusted annually based on the average change in the Consumer Price Index for Urban Wage Earners and Clerical Workers (CPI-W), which is a measure of inflation.
As a result of the 2.51 percent increase in the CPI-W for the period ending in November 2025, the CRA asset-size thresholds for small banks and intermediate small banks are:
* A small bank is an institution that, as of December 31 of either of the prior two calendar years, had assets of less than $1.649 billion.
* An intermediate small bank is a small institution with assets of at least $412 million as of December 31 of both of the prior two calendar years and less than $1.649 billion as of December 31 of either of the prior two calendar years.
These thresholds are in effect from the latter of January 1, 2026 or the date of publication in the Federal Register through December 31, 2026. A list of the current and historical asset-size thresholds is available here.
Attachment(s)
Federal Register Notice (PDF)
Contact(s)
FDIC: LaJuan Williams-Young, (202) 898-3876
FRB: Chelsea Grate, (202) 452-2955
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Original text here: https://www.fdic.gov/news/press-releases/2025/agencies-release-annual-asset-size-thresholds-under-community-reinvestment
USITC Institutes Section 337 Investigation of Certain Dynamic Random Access Memory (Dram) Devices, Products Containing the Same, and Components Thereof
WASHINGTON, Dec. 29 -- The U.S. International Trade Commission issued the following news release:* * *
USITC Institutes Section 337 Investigation of Certain Dynamic Random Access Memory (Dram) Devices, Products Containing the Same, and Components Thereof
*
News Release 25-132
Inv. No(s). 337-TA-1472
Contact: Michelea Wyatt-McLeod, 202-205-1819
The U.S. International Trade Commission (USITC) voted to institute an investigation of certain dynamic random access memory (DRAM) devices, products containing the same, and components thereof. The products at issue in the investigation are described ... Show Full Article WASHINGTON, Dec. 29 -- The U.S. International Trade Commission issued the following news release: * * * USITC Institutes Section 337 Investigation of Certain Dynamic Random Access Memory (Dram) Devices, Products Containing the Same, and Components Thereof * News Release 25-132 Inv. No(s). 337-TA-1472 Contact: Michelea Wyatt-McLeod, 202-205-1819 The U.S. International Trade Commission (USITC) voted to institute an investigation of certain dynamic random access memory (DRAM) devices, products containing the same, and components thereof. The products at issue in the investigation are describedin the Commission's notice of investigation.
The investigation is based on a complaint filed by Netlist, Inc. of Irvine, California, on September 30, 2025. The complaint was supplemented on November 20, 2025, December 5, 2025, December 12, and December 16, 2025. The complaint, as supplemented, alleges violations of section 337 of the Tariff Act of 1930 in the importation into the United States and sale of certain dynamic random access memory (DRAM) devices, products containing the same, and components thereof that infringe patents asserted by the complainants. The complainant requests that the USITC issue a limited exclusion order and cease and desist orders.
The USITC has identified the following respondents in this investigation:
* Samsung Electronics Co., Ltd., Suwon, Republic of Korea
* Samsung Electronics America, Inc., Plano, Texas
* Samsung Semiconductor, Inc., Plano, Texas
* Google LLC, Mountain View, California
* Super Micro Computer, Inc., San Jose, California
By instituting this investigation (337-TA-1472), the USITC has not yet made any decision on the merits of the case. The USITC's Chief Administrative Law Judge will assign the case to one of the USITC's administrative law judges (ALJ), who will schedule and hold an evidentiary hearing. The ALJ will make an initial determination as to whether there is a violation of section 337; that initial determination is subject to review by the Commission.
The USITC will make a final determination in the investigation at the earliest practicable time. Within 45 days after institution of the investigation, the USITC will set a target date for completing the investigation. USITC remedial orders in section 337 cases are effective when issued and become final 60 days after issuance unless disapproved for policy reasons by the U.S. Trade Representative within that 60-day period.
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Original text here: https://www.usitc.gov/press_room/news_release/2025/er1229_67906.htm
SEC Announces Retirement of Division of Corporation Finance Deputy Director Cicely LaMothe
WASHINGTON, Dec. 29 -- The Securities and Exchange Commission issued the following news release:* * *
SEC Announces Retirement of Division of Corporation Finance Deputy Director Cicely LaMothe
*
The Securities and Exchange Commission today announced that Cicely LaMothe, Deputy Director of the Division of Corporation Finance, has retired from the agency.
"Cicely has gone above and beyond the call of duty over the past twenty-four years to serve the public in her many critical roles in the Division of Corporation Finance," said Jim Moloney, Director of the Division of Corporation Finance. ... Show Full Article WASHINGTON, Dec. 29 -- The Securities and Exchange Commission issued the following news release: * * * SEC Announces Retirement of Division of Corporation Finance Deputy Director Cicely LaMothe * The Securities and Exchange Commission today announced that Cicely LaMothe, Deputy Director of the Division of Corporation Finance, has retired from the agency. "Cicely has gone above and beyond the call of duty over the past twenty-four years to serve the public in her many critical roles in the Division of Corporation Finance," said Jim Moloney, Director of the Division of Corporation Finance."Throughout her tenure she has contributed her passion, commitment, and accounting expertise to support our mission - to ensure investors have the information they need to make informed decisions. She will be sorely missed, and we wish her all the best on her next chapter."
Ms. LaMothe joined the Division of Corporation Finance in 2002 and has served in multiple senior leadership positions, including Program Director of the Disclosure Review Program, Associate Director of the Office of Assessment and Continuous Improvement, and Associate Director of Disclosure Operations before being named Deputy Director for Disclosure Operations in 2022. She served as Acting Director until Jim Moloney was appointed Director on September 30, 2025.
During Cicely's tenure she:
* Increased regulatory transparency through the issuance of external guidance, including 25+ new and updated Compliance and Disclosure Interpretations (covering clawbacks, deSPACs, Rule 10b5-1, etc.), Staff Legal Bulletin 14M clarifying views on the application of Rule 14a-8, and seven CF Staff Statements on rapidly evolving crypto-related matters (liquid staking, stablecoins, mining activities, meme coins, crypto ETPs).
* Drove policy recommendations to the Commission regarding the acceleration of registration statements with mandatory arbitration provisions as well as Concept Releases covering both Foreign Private Issuers and Asset-Backed Securities.
* Expanded accommodations for companies submitting draft registration statements to promote capital formation.
* Advanced key improvements in the division's approach on the reviews of public company disclosures that modernize and enhance the efficiency and effectiveness of regulatory oversight.
"After more than two decades at the SEC, I depart with a deep sense of honor and gratitude for the opportunity to serve the American public. The work has been incredibly challenging and rewarding, and I have learned immensely from the dedicated individuals who commit themselves daily to this critical mission. To my colleagues, your integrity and, more importantly, your friendship, has been my true inspiration and constant motivation," said Ms. LaMothe.
Before coming to the SEC, Ms. LaMothe worked for six years in the private sector, including as the financial reporting manager for a public company and with a national accounting firm. Ms. LaMothe earned her bachelor's degree in accounting from Hampton University and is a licensed Certified Public Accountant.
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Original text here: https://www.sec.gov/newsroom/press-releases/2025-145-sec-announces-retirement-division-corporation-finance-deputy-director-cicely-lamothe
SEC Obtains Final Judgment as to Texas Resident Charged With Insider Trading
WASHINGTON, Dec. 24 -- The Securities and Exchange Commission issued the following litigation release (No. 4:24-cv-919-P; N.D. Tex. filed Sept. 26, 2024) involving Bryan Scott McMillan:* * *
On December 22, 2025, the U.S. District Court for the Northern District of Texas entered a final consent judgment as to defendant Bryan Scott McMillan, whom the SEC previously charged with insider trading.
The SEC's complaint, filed on September 26, 2024, alleged that on November 28, 2022, McMillan committed insider trading when he purchased shares of Apollo Endosurgery, Inc. common stock on the basis of ... Show Full Article WASHINGTON, Dec. 24 -- The Securities and Exchange Commission issued the following litigation release (No. 4:24-cv-919-P; N.D. Tex. filed Sept. 26, 2024) involving Bryan Scott McMillan: * * * On December 22, 2025, the U.S. District Court for the Northern District of Texas entered a final consent judgment as to defendant Bryan Scott McMillan, whom the SEC previously charged with insider trading. The SEC's complaint, filed on September 26, 2024, alleged that on November 28, 2022, McMillan committed insider trading when he purchased shares of Apollo Endosurgery, Inc. common stock on the basis ofmaterial nonpublic information obtained from his domestic partner, who worked at Apollo at the time. Specifically, the complaint alleged that McMillan learned that Apollo would be acquired by another company and, within minutes of learning about the planned acquisition, he sold the securities of three other companies and purchased 20,000 shares of Apollo stock right before the stock market closed. The next morning, Apollo announced that it was being acquired, which caused its share price to increase. According to the SEC's complaint, McMillan obtained ill-gotten profits of $81,400.
Without admitting or denying the allegations in the SEC's complaint, McMillan consented to the entry of the final judgment that permanently enjoins him from violating Section 10(b) of the Securities Exchange Act of 1934 and Rule 10b-5 thereunder; orders him to pay disgorgement of $81,400, prejudgment interest of $18,260.76, and a civil penalty of $122,100; and bars him from serving as an officer or director of a public company for two years.
The case originated from the SEC Market Abuse Unit's Analysis and Detection Center, which uses data analysis tools to detect suspicious trading patterns. The SEC's litigation was conducted by James P. McDonald and Jacqueline M. Moessner, and was supervised by Gregory A. Kasper and Nicholas P. Heinke of the SEC's Denver Regional Office. The SEC's investigation was conducted by Market Abuse Unit staff members Jeffrey Oraker and John Rymas, and was supervised by Danielle R. Voorhees and Joseph G. Sansone, Chief of the Market Abuse Unit.
* * *
Resources
* Final Judgment (https://www.sec.gov/files/litigation/litreleases/2025/judg26454.pdf)
* * *
Original text here: https://www.sec.gov/enforcement-litigation/litigation-releases/lr-26454
SEC Charges Three Purported Crypto Asset Trading Platforms and Four Investment Clubs With Misappropriating $14 Million From Retail Investors
WASHINGTON, Dec. 24 -- The Securities and Exchange Commission issued the following litigation release (No. 25-cv-04102; D. Colo. filed Dec. 22, 2025):* * *
Securities and Exchange Commission v. Morocoin Tech Corp., et al., No. 25-cv-04102 (D. Colo. filed Dec. 22, 2025)
The Securities and Exchange Commission today filed charges against purported crypto asset trading platforms Morocoin Tech Corp.; Berge Blockchain Technology Co., Ltd.; and Cirkor Inc. and investment clubs AI Wealth Inc.; Lane Wealth Inc.; AI Investment Education Foundation Ltd. ("AIIEF"); and Zenith Asset Tech Foundation alleging ... Show Full Article WASHINGTON, Dec. 24 -- The Securities and Exchange Commission issued the following litigation release (No. 25-cv-04102; D. Colo. filed Dec. 22, 2025): * * * Securities and Exchange Commission v. Morocoin Tech Corp., et al., No. 25-cv-04102 (D. Colo. filed Dec. 22, 2025) The Securities and Exchange Commission today filed charges against purported crypto asset trading platforms Morocoin Tech Corp.; Berge Blockchain Technology Co., Ltd.; and Cirkor Inc. and investment clubs AI Wealth Inc.; Lane Wealth Inc.; AI Investment Education Foundation Ltd. ("AIIEF"); and Zenith Asset Tech Foundation allegingthat they defrauded retail investors of at least $14 million in an investment confidence scam.
According to the complaint, from at least January 2024 to January 2025, AI Wealth, Lane Wealth, AIIEF, and Zenith operated so-called investment clubs using WhatsApp and solicited investors to join the clubs with ads on social media. The clubs gained investors' confidence with supposedly AI-generated investment tips before luring investors to open and fund accounts on purported crypto asset trading platforms Morocoin, Berge, and Cirkor, which falsely claimed to have government licenses, as alleged. The investment clubs and platforms then allegedly offered "Security Token Offerings" that were purportedly issued by legitimate businesses. In reality, no trading took place on the trading platforms, which were fake, and the Security Token Offerings and their purported issuing companies did not exist, according to the complaint. When investors tried to withdraw their funds, the complaint alleges that the defendants further defrauded victims by demanding that they pay advance fees. In all, the defendants misappropriated at least $14 million from U.S.-based retail investors and funneled those funds overseas through a web of bank accounts and crypto asset wallets, as alleged.
The complaint, filed in the United States District Court for the District of Colorado, charges Morocoin, Berge, and Cirkor with violating Section 17(a) of the Securities Act of 1933 and Section 10(b) of the Securities Exchange Act of 1934 and Rule 10b-5 thereunder, and charges AI Wealth, Lane Wealth, AIIEF, and Zenith with violating Sections 17(a)(1) and (3) of the Securities Act and Section 10(b) of the Exchange Act and Rule 10b-5 thereunder. The SEC seeks permanent injunctions and civil penalties against all of the defendants, and disgorgement with prejudgment interest against Morocoin, Berge, and Cirkor.
The SEC's investigation was conducted by Devlin N. Su of the Cyber and Emerging Technologies Unit, with assistance from Thomas Bedkowski of the Cyber and Emerging Technologies Unit and Crystal Boodoo of the Philadelphia Regional Office. The investigation was supervised by Norman P. Ostrove and Laura D'Allaird of the Cyber and Emerging Technologies Unit, and Scott A. Thompson of the Philadelphia Regional Office. The litigation will be led by Christopher R. Kelly and supervised by Gregory Bockin of the Philadelphia Regional Office.
The SEC's Office of Investor Education and Assistance has issued an investor alert warning investors that fraudsters may use popular social media platforms and messaging apps to lure investors into scams, and never to rely solely on information from group chats in making investment decisions. The SEC encourages investors to use Investor.gov to check the background of anyone offering or selling them an investment.
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Resources
* SEC Complaint (https://www.sec.gov/files/litigation/complaints/2025/comp-pr2025-144.pdf)
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Original text here: https://www.sec.gov/enforcement-litigation/litigation-releases/lr-26453
FLRA Issues Decision Regarding Department of Army, Fort Huachuca, Arizona Vs. AFGE, Local 1662
WASHINGTON, Dec. 24 -- The Federal Labor Relations Authority issued the following decision (Case No. 0-AR-5989) on Dec. 22, 2025:* * *
UNITED STATES DEPARTMENT OF THE ARMY
FORT HUACHUCA, ARIZONA (Agency)
and
AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES
LOCAL 1662 (Union)
0 AR 5989
DECISION
December 22, 2025
* * *
Before the Authority: Colleen Duffy Kiko, Chairman, and Anne Wagner, Member
I. Statement of the Case
The Agency denied an employee (the grievant) sick leave - and designated him absent without leave (AWOL) - because he did not provide documentation from a medical practitioner ... Show Full Article WASHINGTON, Dec. 24 -- The Federal Labor Relations Authority issued the following decision (Case No. 0-AR-5989) on Dec. 22, 2025: * * * UNITED STATES DEPARTMENT OF THE ARMY FORT HUACHUCA, ARIZONA (Agency) and AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES LOCAL 1662 (Union) 0 AR 5989 DECISION December 22, 2025 * * * Before the Authority: Colleen Duffy Kiko, Chairman, and Anne Wagner, Member I. Statement of the Case The Agency denied an employee (the grievant) sick leave - and designated him absent without leave (AWOL) - because he did not provide documentation from a medical practitioner(medical certificate) to support his sick leave request. After the Union grieved the matter, Arbitrator Richard R. Rice issued an award finding that, although the Agency required the grievant to submit a medical certificate, the Agency did not communicate to the grievant why he must do so. Absent such an explanation, the Arbitrator found the Agency's actions violated the parties' collective bargaining agreement. The Agency filed exceptions to the Arbitrator's award, and the exceptions present the five questions below.
The first question is whether the Authority has jurisdiction over this case after the President's issuance of Executive Order 14,251 (the executive order),[1] which, as pertinent here, excluded certain agencies and agency subdivisions from the coverage of the Federal Service Labor Management Relations Statute (the Statute) pursuant to Sec. 7103(b)(1) of the Statute.[2] Importantly, the executive order did not exempt from the Statute's coverage "the immediate, local employing offices of any agency . . . firefighters."[3] Because the grievant is an Agency firefighter, we have jurisdiction over this dispute. Thus, the answer to the first question is yes.
The second question is whether the award is based on nonfacts. Because the Agency fails to establish that the contested findings are clearly erroneous, and for the additional reasons explained below, the answer is no.
The third question is whether the award fails to draw its essence from the agreement. The award interpreting the agreement's wording concerning medical certificates to substantiate sick leave is not irrational, unfounded, implausible, or in manifest disregard of the agreement, so the answer is no.
The fourth question is whether the award is contrary to 5 C.F.R. Sec. 630.405 (Sec. 630.405), which pertinently provides that "[a]n employee must provide . . . medical certification for a request for sick leave . . . after . . . the agency requests such medical certification."[4] The Arbitrator's finding that the Agency did not comply with the agreement is consistent with the Agency's discretion concerning medical certificate requests under Sec. 630.405, so the answer to the fourth question is no.
The fifth question is whether the award conflicts with management's rights to assign work and discipline employees, under Sec. 7106(a)(2)(A) and (B) of the Statute.[5] For the reasons discussed below, the award is consistent with management's rights, and the answer to the fifth question is also no.
II. Background and Arbitrator's Award
The grievant is a firefighter employed by the Agency's Directorate of Emergency Services, Fire Protection & Prevention Division. The Agency directed the grievant to attend a mandatory two day training about medical skills for active shooter incidents. The grievant requested official time to conduct Union related activities - and, in the alternative, annual leave - that would excuse him from attending the training. The Agency denied those official time and annual leave requests, and the grievant completed the first day's training.
Partway through the second day's training, the grievant reported that he felt unwell, and he asked for sick leave that would excuse him from the remainder of the training. The Agency tentatively approved the sick leave request but required the grievant, upon his return to duty, to provide a medical certificate to substantiate his sick leave request. When he returned to duty, the grievant submitted a self certification stating that he was "temporarily incapacitated," requiring his absence from the training.[6] The Agency rejected the self certification because it was not a medical certificate, and, consequently, the Agency changed the tentatively approved sick leave to AWOL.
The Union grieved the denial of sick leave and AWOL designation, and the Agency denied the grievance. The parties stipulated the following issues for arbitration: "Did the Agency violate the [agreement] or federal law when it denied sick leave to [the grievant] and marked him AWOL . . . ; and if so, what shall be the remedy?"[7]
Addressing the basis for the sick leave request, the Arbitrator credited the grievant's evidence that he has "anxiety[ ]related issues that are treated by a medical practitioner," and his testimony that his anxiety is often "resolved through coping skills, rather than a trip to the emergency room."[8] Given the grievant's "history of anxiety," the Arbitrator found that it was reasonable to believe the grievant "suffer[ed] from anxiety" due to the active shooter training, and that the grievant requested sick leave for that reason.[9]
Concerning the standards for requesting and approving sick leave, the Arbitrator identified Article 32, Section 12 (Section 12) of the agreement as the governing contract provision. That section states:
Unit employees may be required to furnish a medical certificate to substantiate a request for approval of sick leave . . . when the [A]gency determines it is necessary for legitimate reasons. Supervisors are encouraged to verbally counsel an employee about sick leave abuse prior to issuing a written warning. The employee is entitled to review medical certificate requirements with the supervisor to discuss whether or not the requirement will be continued.[10]
The Arbitrator acknowledged that, under Section 12, the Agency may require a medical certificate if the Agency finds a certificate necessary for "legitimate reasons."[11] However, the Arbitrator found that the "second part" of Section 12 "requir[es] communication with the employee to prevent sick[ ]leave abuse."[12] Based on that finding, the Arbitrator held that Section 12 "implicit[ly]" requires the Agency to communicate any legitimate reasons to the affected employee.[13]
Applying this requirement, the Arbitrator found the Agency did not communicate to the grievant any legitimate reasons for needing a medical certificate, rather than a self certification. On that basis, the Arbitrator "[did ]not find justification for the medical [certificate]; or for the rejection of the self certification."[14] Thus, the Arbitrator concluded that the requirement for a medical certificate, the denial of sick leave, and the AWOL designation violated Section 12.
The Arbitrator determined that his contractual finding was consistent with Sec. 630.405. He recognized that Sec. 630.405 authorized the Agency to either rely on an employee's self certification to support sick leave, or to determine that a medical certificate was necessary. However, he also found that this "standard must be tempered [by] some evidence supporting the request for documentation," and he faulted the Agency for "never communicat[ing] . . . to the [g]rievant" the reasons a medical certificate was necessary under the regulation.[15]
The Arbitrator sustained the grievance, directed the Agency to remove the AWOL designation, and awarded the grievant backpay for the compensation he would have received if the Agency had approved his sick leave request.
The Agency filed exceptions to the award on September 20, 2024, and the Union filed an opposition on October 17, 2024.
III. Preliminary Matters
A. We have jurisdiction over this case, and we deny the Union's stay motion.
After the Agency filed its exceptions, the President issued the executive order, which excluded certain agencies and agency subdivisions - including the Department of Defense - from the coverage of the Statute.[16] Because the Agency is part of the Department of Defense, the Authority ordered the Agency to show cause why its exceptions should not be dismissed for lack of jurisdiction.[17] The Authority also provided the Union an opportunity to reply to the Agency's response to the show cause order.[18]
In its response, the Agency cites Section 1 499 of the executive order (Section 1 499), which states, in pertinent part, "[N]othing in th[e executive order's new exclusions] shall exempt from the coverage of [the Statute] . . . the immediate, local employing offices of any agency police officers, security guards, or firefighters . . . ."[19] Relying on this wording, the Agency asserts the Authority has jurisdiction over the exceptions because the grievant is an Agency firefighter, and the arbitral remedies apply only to him.[20]
In its reply to the Agency's response, the Union moves for the Authority to stay the proceedings in this case.[21] The Union argues that: (1) the executive order's validity is at issue in pending federal court litigation;[22] (2) the Department of Defense sought declaratory relief in federal court to allow the Agency to "rescind or repudiate" the parties' agreement;[23] and (3) the executive order raises complex questions of constitutional and statutory interpretation. Regarding those first two considerations, the Union argues the Authority would benefit from the courts' resolution of the issues under litigation.[24] Concerning the third consideration, the Union argues the Authority would benefit from more fulsome briefing.[25] Nevertheless, the Union agrees with the Agency that this case concerns an Agency firefighter.[26]
We agree with the Agency that this case falls within the scope of Section 1 499 because the grievant is a firefighter. Additionally, the award provides relief only to him.[27] Accordingly, none of the executive order's exclusions apply so as to deprive the Authority of jurisdiction in this case.[28]
Further, the pending challenges to the executive order are not a reason to stay this case. Before the executive order issued, the Authority had jurisdiction over this dispute; in accordance with Section 1 499, the executive order does not deprive the Authority of jurisdiction. Thus, there is no basis for finding that the litigation challenging the executive order could affect the Authority's jurisdiction to decide the Agency's exceptions.
Moreover, the Department of Defense's declaratory judgment action seeking to rescind or repudiate the parties' agreement does not warrant a stay. Initially, since the parties responded to the show cause order, the federal district court dismissed, without prejudice, the declaratory judgment action for lack of jurisdiction.[29] Further, the government sought,[30] and received, a voluntary dismissal of its earlier appeal of the district court's order.[31] But because the district court's dismissal was without prejudice to refiling, the declaratory judgment action could be re filed.[32] Nevertheless, that possibility does not warrant a stay, because the Authority derives its jurisdiction to resolve arbitration exceptions from the Statute, not the parties' collective bargaining agreement.[33] Thus, even if the Agency were to rescind or repudiate that agreement, and even if such action were consistent with a declaratory judgment order, the rescission or repudiation would not affect the Authority's jurisdiction under the Statute.[34] In addition, the Authority has held that an agency's cancellation of a collective bargaining agreement did not render exceptions moot where the agreement governed the parties' relationship at the time the award was issued.[35] This precedent lends further support to a conclusion that we have jurisdiction to resolve the exceptions here.
Finally, this case does not involve complex questions of law that require further briefing. As just stated, the Authority has jurisdiction here irrespective of the results of any pending federal court litigation. We find that the parties' previously submitted briefs contain sufficient information to resolve this dispute.
In sum, we have jurisdiction over this case,[36] and we deny the Union's stay motion.
B. Sections 2425.4(c) and 2429.5 of the Authority's Regulations do not bar the Agency's management right arguments.
The Agency argues the award is contrary to its rights to assign work and discipline employees.[37] In its opposition, the Union argues the Authority should bar these arguments because "the Agency never raised the issue of management's rights . . . with the Arbitrator."[38] Under Sec.Sec. 2425.4(c) and 2429.5 of the Authority's Regulations, the Authority will not consider arguments that could have been, but were not, presented to the arbitrator.[39]
The Agency raised the management rights to assign work and discipline employees in its closing brief at arbitration.[40] Accordingly, the Authority's Regulations do not bar the Agency from relying on those same rights in its exceptions.[41]
IV. Analysis and Conclusions
A. The award is not based on nonfacts.
The Agency argues the award is based on two nonfacts, discussed further below.[42] To establish an award is based on a nonfact, the excepting party must show that a central fact underlying the award is clearly erroneous, but for which the arbitrator would have reached a different result.[43] The Authority will not find an award deficient based on the arbitrator's determination of any factual matter that the parties disputed at arbitration.[44] Further, disagreement with an arbitrator's evaluation of evidence, including the weight accorded such evidence, does not provide a basis for finding that an award is based on a nonfact.[45]
The Agency's first nonfact argument is that the Arbitrator erred in finding that the Agency never communicated the reasons the grievant needed to provide a medical certificate.[46] According to the Agency, it clearly communicated the reason in the tentative approval: "to support his request for sick leave."[47] However, Sec. 630.405 permits an agency to consider an employee's self certification to support a sick leave request.[48] Thus, under Sec. 630.405, requiring an employee to "support"[49] a sick leave request with a medical certificate is not, standing alone, a reason for requiring such a certificate. Further, the Arbitrator found that Section 12 requires the Agency to communicate its legitimate reasons to an employee when requiring medical documentation - and, as discussed below, we deny the Agency's essence exception challenging that finding. The Agency's communication did not convey why the Agency was asking the grievant to support his sick leave request. For these reasons, the Agency does not demonstrate that the Arbitrator made a clearly erroneous factual finding when he determined that the Agency never communicated the reasons the grievant needed to provide a medical certificate.[50]
The Agency's second nonfact argument is that the Arbitrator erred in finding no justification for the medical certificate requirement because the Agency explained at arbitration its reasons for insisting on a medical certificate.[51] However, even assuming this argument concerns a factual finding - rather than a contractual one - the parties disputed below whether the certificate requirement was justified,[52] and the Arbitrator found it was not.[53] This arbitral resolution of a factual dispute does not provide a basis for finding a nonfact.[54] Further, to the extent the Agency argues the Arbitrator "ignore[d] the record,"[55] contesting the Arbitrator's weighing of evidence also does not establish a nonfact.[56] Moreover, any explanation for the medical certificate requirement that the Agency provided at arbitration does not demonstrate that the Arbitrator clearly erred in finding the Agency was unjustified in requiring a medical certificate without providing any explanation to the grievant.[57]
For these reasons, we deny the nonfact exception.
B. The award draws its essence from the agreement.
The Agency argues the award fails to draw its essence from the parties' agreement because the Arbitrator erroneously required the Agency to communicate legitimate reasons for requiring a medical certificate.[58] The Authority will find that an award fails to draw its essence from a collective bargaining agreement when the excepting party establishes the award: (1) cannot in any rational way be derived from the agreement; (2) is so unfounded in reason and fact and so unconnected with the wording and purposes of the agreement as to manifest an infidelity to the obligation of the arbitrator; (3) does not represent a plausible interpretation of the agreement; or (4) evidences a manifest disregard of the agreement.[59]
In its first essence argument, the Agency contends the Arbitrator's imposition of a requirement to communicate its legitimate reasons to an employee when requiring medical documentation is irrational and implausible because Section 12 does not contain such a requirement.[60] However, the Arbitrator found this requirement was "implicit" in Section 12, observing that the "second part of Section 12 requir[es] communication with the employee to prevent sick leave abuse."[61] Section 12 requires supervisors to verbally counsel employees, to review medical certificate requirements with employees, and to discuss with employees whether medical certificate requirements will be continued.[62] In other words, Section 12 contains several requirements for supervisors to communicate with employees about sick leave usage - and medical certificates, in particular. Further, Section 12 authorizes the Agency to require a medical certificate "for legitimate reasons," but it would be impossible for the grievant to know whether the Agency had "legitimate reasons" for requiring a medical certificate unless the Agency communicated such reasons to him.[63] Consequently, it was not irrational, unfounded, implausible, or in manifest disregard of the parties' agreement for the Arbitrator to conclude that Section 12 required the Agency to communicate to the grievant its legitimate reasons for requiring a medical certificate.[64]
In its second essence argument, the Agency asserts the Arbitrator's interpretation of Section 12 disregards Article 35, Section 1(b)(1) (Section 1(b)(1)) - a provision that addresses when firefighters must provide medical certificates to support sick leave.[65] Section 1(b)(1) states, in pertinent part, "Operations firefighters who take sick leave . . . [,] when the [A]gency determines it is necessary for legitimate reasons[,] must provide a medical certificate . . . ."[66] However, this provision contains the same wording as Section 12 regarding the Agency's need to have legitimate reasons for requiring a medical certificate. Thus, for the same reason identified in the Section 12 discussion above - the Agency's failure to communicate any legitimate reasons to the grievant - the Agency does not show that the award is irrational, unfounded, implausible, or in manifest disregard of Section 1(b)(1).[67]
We deny the essence exception.
C. The award is consistent with Sec. 630.405.
The Agency argues the award is contrary to Sec. 630.405 because that regulation does not require the Agency to justify a medical certificate requirement when evaluating sick leave requests.[68] When exceptions involve an award's consistency with law, the Authority reviews any question of law raised by the exceptions and the award de novo.[69] In applying the standard of de novo review, the Authority assesses whether an arbitrator's legal conclusions are consistent with the applicable standard of law.[70] In making that assessment, the Authority defers to the arbitrator's underlying factual findings, unless the excepting party establishes they are based on nonfacts.[71]
Section 630.405(a) says, in relevant part, "An agency may also require a medical certificate . . . as to the reason for an absence . . . when the agency determines it is necessary."[72] Further, Sec. 630.405(b) says, in pertinent part, "An employee must provide administratively acceptable evidence or medical certification for a request for sick leave . . . after the date the agency requests such medical certification."[73]
Emphasizing the word "must" in Sec. 630.405(b), the Agency asserts that, once it requests a medical certificate, an employee is obligated to furnish one.[74] The Agency "essentially argues that it has an unreviewable right to determine that medical documentation is necessary."[75] But the Authority has previously held that an arbitrator may scrutinize whether an agency "properly determined that medical documentation was necessary," without running afoul of Sec. 630.405(b).[76] In doing so, the arbitrator may examine whether the determination was "reasonable" or an "abuse[ of] discretion."[77] Thus, the Authority has rejected the proposition that such determinations are unreviewable.
Further, the Authority has recognized that Sec. 630.405 permits parties to negotiate, to the extent of an agency's discretion, over the circumstances in which the agency will require medical certificates.[78] Here, the parties negotiated the conditions set forth in Section 12, and the Arbitrator found that one of those conditions required the Agency to communicate to the grievant its legitimate reasons for requiring a medical certificate.[79]
In short, Sec. 630.405 does not provide the Agency with unlimited or unreviewable discretion to determine when it will require a medical certificate; the parties bargained over the conditions that apply to such a requirement; and the Arbitrator remedied the Agency's failure to comply with one of those conditions. Under Authority precedent, the Arbitrator's interpretation of the parties' agreement is consistent with the Agency's discretion under Sec. 630.405, and we reject the Agency's argument to the contrary.
D. The Arbitrator enforced an appropriate arrangement, so the award is consistent with management's rights.
The Agency argues that, by limiting its ability to require the grievant to provide a medical certificate to substantiate his sick leave, the award interferes with management's rights to assign work and discipline employees,[80] under Sec. 7106(a)(2)(A) and (B) of the Statute.[81] The Union contends any such interference is lawful because Section 12 - which the Arbitrator enforced - is an appropriate arrangement under Sec. 7106(b)(3) of the Statute.[82] In Consumer Financial Protection Bureau (CFPB), the Authority revised its test for resolving management rights exceptions in cases where an arbitrator found a collective bargaining agreement violation.[83] We apply CFPB here.
Under the four part CFPB framework, the first question is whether the excepting party establishes the arbitrator's interpretation and application of the parties' agreement, or the awarded remedy, affects a management right.[84] In CFPB, the Authority stated that "if it is clear that the [collective bargaining agreement] provision is enforceable under Sec. 7106(b), then the Authority may assume, without deciding, that the interpretation and application of the [agreement] and/or the awarded remedy 'affects' a management right."[85] As explained further below, Authority precedent establishes that Section 12, as interpreted and applied by the Arbitrator, is an appropriate arrangement under Sec. 7106(b)(3). Thus, we assume, without deciding, that the Arbitrator's interpretation and application of Section 12 affect management's rights under Sec. 7106(a).[86]
Under CFPB's second question, the Authority determines whether the arbitrator correctly found, or the opposing party demonstrates, that the pertinent contract language - as interpreted and applied by the arbitrator - is enforceable under Sec. 7106(b).[87] As the Arbitrator did not address Sec. 7106, we examine whether the Union demonstrates that Section 12, as interpreted and applied by the Arbitrator, is enforceable.[88] The Union argues that, in the event the Agency conditions sick-leave approval on the employee's production of a medical certificate, the Arbitrator's interpretation and application of Section 12 requires the Agency to communicate the reasons for this requirement.[89] The Authority has previously recognized that "provisions addressing the circumstances in which management can deny leave requests ameliorate the adverse [e]ffects flowing from management's right to deny leave requests."[90] Thus, the Union has shown that Section 12, as interpreted and applied by the Arbitrator, is an "arrangement" under Sec. 7106(b)(3).[91]
Arrangements are "appropriate" within the meaning of Sec. 7106(b)(3) when they do not "excessively interfere" with management rights - that is, when the "benefit to employees outweighs the . . . burden on the exercise of the management right involved."[92] The Union argues that Section 12 - as interpreted and applied by the Arbitrator - ensures that an employee understands why management has exercised its discretion to require a medical certificate so the employee can take the necessary steps to obtain approval for sick leave.[93] The Union argues this benefit is particularly important when management requires a medical certificate in circumstances that are "contrary to the normal practice."[94] Further, the Union argues the burden on management is slight because a supervisor need only tell the employee what the legitimate reasons are for requiring a medical certificate.[95]
The Authority "has determined that agreement pro[visions] that address requesting and granting sick leave . . . constitute appropriate arrangements within the meaning of [Sec. ]7106(b)(3) of the Statute,"[96] as long as they "afford[] management sufficient notice to make appropriate adjustments in the scheduling of work" and do "not require management to grant leave for any unsubstantiated reason."[97] Here, the Arbitrator's interpretation and application of Section 12 require only that the Agency (1) have a legitimate reason for requiring a medical certificate and (2) communicate that reason to the affected employee. The Agency fails to identify a management interest in either requiring a medical certificate without a legitimate reason or refusing to disclose its legitimate reason to the grievant. Moreover, the Arbitrator's interpretation and application of Section 12 do "not require management to grant leave for any unsubstantiated reason."[98] Accordingly, we find the Union has established that Section 12, as interpreted and applied by the Arbitrator, is an enforceable appropriate arrangement.[99]
CFPB's third question asks whether the excepting party challenges the remedy separate and apart from the underlying violation.[100] In this case, the Agency does not separately challenge the remedy.[101] Therefore, the CFPB analysis ends, and we need not reach the fourth question.[102]
Because the Union has established that Section 12 is enforceable under Sec. 7106(b)(3), the award is not contrary to management's rights. Consequently, we deny the contrary to law exception.
V. Decision
We have jurisdiction over this case. We deny the Union's stay motion and the Agency's exceptions.
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Footnotes:
[1] Exclusions from Federal Labor Management Relations Programs, Exec. Order No. 14,251 (Mar. 27, 2025) (EO 14,251), 90 Fed. Reg. 14553 (Apr. 3, 2025) (amending Executive Order 12,171, 44 Fed. Reg. 66565 (Nov. 19, 1979)).
[2] 5 U.S.C. Sec. 7103(b)(1).
[3] EO 14,251, sec. 2(b), Sec. 1 499, 90 Fed. Reg. at 14554.
[4] 5 C.F.R. Sec. 630.405(b).
[5] 5 U.S.C. Sec. 7106(a)(2)(A), (B).
[6] Opp'n, Attach. 3, Self-Certification at 1.
[7] Award at 2.
[8] Id. at 6.
[9] Id. at 6 7.
[10] Id. at 3 (quoting Collective Bargaining Agreement (CBA) Art. 32, Sec. 12).
[11] Id. at 5 (quoting CBA Art. 32, Sec. 12).
[12] Id. at 7.
[13] Id.
[14] Id. (emphasis omitted).
[15] Id. at 6.
[16] EO 14,251, sec. 2(b), Sec. 1 402, 90 Fed. Reg. at 14553.
[17] Order to Show Cause at 1.
[18] Id.
[19] EO 14,251, sec. 2(b), Sec. 1 499, 90 Fed. Reg. at 14554.
[20] Resp. at 1.
[21] Reply at 1.
[22] Id. at 1 2.
[23] Id. at 2 (citing U.S. DOD v. AFGE, AFL CIO, Dist. 10, 792 F. Supp. 3d 711, 726 (W.D. Tex. 2025) (dismissing case without prejudice for lack of subject matter jurisdiction), appeal voluntarily dismissed, No. 25 50784 (5th Cir. Dec. 2, 2025)).
[24] Id. at 2 3.
[25] Id. at 3.
[26] Id.
[27] We need not address whether Section 1 499 would apply if the award provided broader relief, because that circumstance is not currently before us.
[28] EO 14,251, sec. 2(b), Sec. 1 499, 90 Fed. Reg. at 14554.
[29] U.S. DOD, 792 F. Supp. 3d at 726.
[30] Consent Mot. to Voluntarily Dismiss Appeal, U.S. DOD, No. 25 50784 (5th Cir. Nov. 25, 2025), Dkt. No. 11.
[31] Clerk's Order Granting Mot. to Dismiss Appeal Pursuant to Fed. R. App. P. 42(b), U.S. DOD, No. 25 50784 (5th Cir. Dec. 2, 2025), Dkt. No. 12.
[32] Id.
[33] See 5 U.S.C. Sec. 7122 (granting the Authority power to review arbitration awards when exceptions are filed); cf. NTEU, Chapter 208, 4 FLRA 215, 216 (1980) ("[The Authority's negotiability] jurisdiction . . . cannot in any way be expanded by an agreement between the parties . . . ."); IRS, Wash., D.C., 47 FLRA 1091, 1106 (1993) (finding that parties' agreement to include unfair labor practice (ULP) allegations within the scope of their negotiated grievance procedure could not deprive the Authority of jurisdiction under the Statute to address ULP charges filed by a party to that agreement); U.S. Dep't of VA, Med. Ctr., Danville, Ill., 34 FLRA 131, 135 36 (1990) (where agency entered into agreement with employees as an exercise of discretion, rather than pursuant to a collective bargaining obligation under the Statute, Authority had no jurisdiction to consider exceptions to an arbitration award that arose from that agreement); LaBoube v. Dep't of the Treasury, 105 M.S.P.R. 337, 340 (2007) ("[P]arties cannot confer [Merit Systems Protection] Board jurisdiction by agreement where it is otherwise lacking.").
[34] Cf. U.S. Dep't of the Treasury, BEP, Wash., D.C., 41 FLRA 860, 865 66 (1991) (holding that agency's cancellation of collective bargaining agreement provided no reason to find an award deficient, where the "agreement governed the parties' relationship at the time the award was issued").
[35] Id.
[36] See U.S. Dep't of the Navy, Commander Navy Region Nw., Fire & Emergency Servs., 74 FLRA 286, 288 (2025) (holding the executive order did not deprive Authority of jurisdiction over arbitration exceptions where there was no dispute that agency was "the immediate, local employing office of firefighters").
[37] See Exceptions Br. at 4 5.
[38] Opp'n Br. at 10.
[39] 5 C.F.R. Sec.Sec. 2425.4(c), 2429.5.
[40] Exceptions, Encl. 8, Agency's Arb. Closing Br. (Agency's Arb. Closing Br.) at 3 4 (arguing Arbitrator would interfere with management's rights to assign work and discipline employees if he held Agency could not require grievant to provide medical certificate).
[41] See, e.g., U.S. DOJ, Fed. BOP, Fed. Corr. Inst., Ashland, Ky., 74 FLRA 13, 15 (2024) (finding Sec.Sec. 2425.4(c) and 2429.5 did not bar an exception because the party raised the same argument in its post hearing brief at arbitration).
[42] Exceptions Br. at 5.
[43] NTEU, Chapter 46, 73 FLRA 654, 655 56 (2023) (Chapter 46) (citing AFGE, Loc. 4156, 73 FLRA 588, 590 (2023)).
[44] Id. (citing Int'l Bhd. of Boilermakers, Loc. 290, 72 FLRA 586, 588 & n.28 (2021); AFGE, Loc. 1698, 70 FLRA 96, 99 (2016)).
[45] Id. (citing AFGE, Loc. 12, 70 FLRA 582, 583 (2018)).
[46] Exceptions Br. at 5.
[47] Id.
[48] 5 C.F.R. Sec. 630.405(a) ("An agency may consider an employee's self certification as to the reason for his or her absence as administratively acceptable evidence, regardless of the duration of the absence."); see also Award at 6 (finding "an employer may rely upon an employee's self-certification" (citing 5 C.F.R. Sec. 630.405(a))).
[49] Exceptions Br. at 5.
[50] See Chapter 46, 73 FLRA at 655 57 (rejecting nonfact argument because party did not demonstrate clear factual error).
[51] Exceptions Br. at 5.
[52] Award at 5 (stating Union argued medical certificate requirement was "arbitrary and discriminatory"); Agency's Arb. Closing Br. at 4 (asserting Agency had legitimate reason for requiring medical certificate).
[53] Award at 7 ("[T]his Arbitrator cannot find justification for the medical documentation [requirement]; or for the rejection of the self-certification.").
[54] See Chapter 46, 73 FLRA at 656 (rejecting nonfact challenge to arbitral resolution of disputed factual issue).
[55] Exceptions Br. at 5.
[56] See Chapter 46, 73 FLRA at 656; U.S. Dep't of VA, Puget Sound Health Care Sys., Seattle, Wash., 72 FLRA 441, 443 (2021) (Chairman DuBester concurring) (denying nonfact argument that a finding "ignore[d] the record").
[57] See Chapter 46, 73 FLRA at 655 57 (rejecting nonfact argument because party did not demonstrate clear factual error).
[58] Exceptions Br. at 6 7.
[59] NLRB Union, 74 FLRA 230, 234 (2025).
[60] Exceptions Br. at 7.
[61] Award at 7.
[62] Id. at 3.
[63] Id. (quoting CBA Art. 32, Sec. 12).
[64] See U.S. Dep't of the Treasury, IRS, Greensboro, N.C., 61 FLRA 103, 105 (2005) (Member Armendariz concurring in part and dissenting in part on other grounds) (denying essence challenge to award in which arbitrator interpreted contractually required "counseling" about performance deficiencies as necessitating "verbal discussions," not merely written notices).
[65] Exceptions Br. at 6 7.
[66] Id. at 7 (emphasis omitted) (quoting CBA Art. 35, Sec. 1(b)(1)).
[67] See U.S. Dep't of the Army, Fort Huachuca, Ariz., 65 FLRA 442, 445 (2011) (relying on arbitrator's interpretation of one contract provision to find that award drew its essence from "functionally identical" wording in another provision of the same agreement).
[68] Exceptions Br. at 3 4 (citing 5 C.F.R. Sec. 630.405).
[69] U.S. Dep't of the Treasury, IRS, 73 FLRA 888, 889 (2024) (IRS); see U.S. DHS, CBP, 69 FLRA 579, 581 (2016) (analyzing argument that award was contrary to government wide regulation using contrary to law framework).
[70] IRS, 73 FLRA at 889.
[71] U.S. Dep't of the Navy, Naval Med. Ctr. Camp Lejeune, Jacksonville, N.C., 73 FLRA 137, 140 (2022).
[72] 5 C.F.R. Sec. 630.405(a).
[73] Id. Sec. 630.405(b).
[74] Exceptions Br. at 4.
[75] U.S. DOJ, Fed. BOP, U.S. Penitentiary Marion, Ill., 59 FLRA 811, 813 (2004) (Member Pope dissenting in part on other grounds).
[76] Id. (emphasis added). The pertinent wording of Sec. 630.405 previously appeared in 5 C.F.R. Sec. 630.403, and older Authority decisions cited Sec. 630.403 for that reason.
[77] Id.
[78] See U.S. Dep't of the Navy, Norfolk Naval Shipyard, Portsmouth, Va., 55 FLRA 1103, 1105 (1999) (Navy) (arbitrator's finding that agreement permitted sick leave restricted employee to rely on self certification to substantiate sick leave usage for recurring medical condition was not contrary to Sec. 630.403); NAGE, SEIU, Loc. R1 134, 47 FLRA 675, 682 (1993) (arbitrator's finding that agreement permitted agency to question the reasonableness of grievant's medical certificate was consistent with Sec. 630.403); AFGE, AFL CIO, Loc. 2052, 30 FLRA 837, 841 (1987) (finding parties could lawfully negotiate a proposal that prohibited supervisors from asking or ordering employees who requested sick leave to disclose their medical diagnoses because "Sec. 630.403 does not require employees to provide reasons in addition to the employee's certification as to the basis for sick[ ]leave usage").
[79] See Award at 6 7.
[80] Exceptions Br. at 4 5.
[81] 5 U.S.C. Sec. 7106(a)(2)(A), (B).
[82] Opp'n Br. at 13 (citing 5 U.S.C. Sec. 7106(b)(3)).
[83] 73 FLRA 670, 676 81 (2023).
[84] Id. at 676 77.
[85] Id. at 681 n.123.
[86] See, e.g., U.S. DHS, U.S. CBP, 74 FLRA 6, 10 (2024) (assuming effect on Sec. 7106(a) rights where Authority found provision interpreted and applied by arbitrator was enforceable as procedure under Sec. 7106(b)(2)).
[87] 73 FLRA at 677 80.
[88] See, e.g., U.S. DOJ, Fed. BOP, Fed. Corr. Inst., Seagoville, Tex., 74 FLRA 40, 43 44 (2024) (where arbitrator did not address Sec. 7106(b), Authority assessed whether opposing party demonstrated that contract provision, as interpreted and applied by arbitrator, was enforceable under Sec. 7106(b)).
[89] Opp'n Br. at 12 13; see also Award at 7 (finding Agency violated Section 12 by denying the grievant's sick-leave request on the basis of the inadequacy of the grievant's self certification without communicating any legitimate reasons to the grievant justifying the need for a medical certificate).
[90] SSA, 65 FLRA 339, 342 (2010) (citing NTEU, 45 FLRA 696, 724 (1992)).
[91] See, e.g., SSA, 65 FLRA at 342. We presume that this amelioration is tailored to the grievant's circumstances because the Agency does not attempt to rebut that presumption. CFPB, 73 FLRA at 680 ("[I]n the arbitration context, we will not separately conduct a tailoring analysis; we will presume that the tailoring requirement is met. However, that presumption is rebuttable: If a party argues that the tailoring requirement is not met for some reason, then we will consider that argument in conducting our Sec. 7106(b)(3) analysis.").
[92] AFGE, Council 220, 74 FLRA 114, 116 (2024).
[93] Opp'n Br. at 13.
[94] Id.
[95] Id.
[96] Navy, 55 FLRA at 1105 (citing NAGE, SEIU, AFL CIO, 40 FLRA 657, 678 82 (1991) (NAGE)).
[97] NAGE, 40 FLRA at 681 82 (finding lawful a provision that established "substantive criteria governing management's decision to grant leave to employees for reasons of illness or medical treatment" because the provision did "not preclude management from requiring documentation" or "require management to grant leave for any unsubstantiated reason," and because the provision "afford[ed] management sufficient notice to make appropriate adjustments in the scheduling of work").
[98] Id. at 681.
[99] See Navy, 55 FLRA at 1105; NAGE, 40 FLRA at 681 82. As such, we need not address the Union's argument that Section 12 - as interpreted and applied by the Arbitrator - is an enforceable procedure under Sec. 7106(b)(2) of the Statute. Opp'n Br. at 11 12; see U.S. Dep't of VA, James A. Haley Veterans Hosp. & Clinics, 73 FLRA 880, 885 n.85 (2024) (then Member Kiko concurring) (citing CFPB, 73 FLRA at 679 (explaining that opposing party need demonstrate only "that one of the subsections of Sec. 7106(b) applies")).
[100] 73 FLRA at 680 81.
[101] See, e.g., Exceptions Br. at 5 ("The Arbitrator cannot render a CBA interpretation that varies from law . . . .").
[102] 73 FLRA at 681 ("Does the excepting party challenge the remedy separate and apart from the underlying CBA violation? If no, then the Authority will deny the exception.").
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Original text here: https://www.flra.gov/decisions/v74/74-52