Unpublished Disposition, 841 F.2d 1128 (9th Cir. 1988)

DEPARTMENT OF the NAVY, Navy Exchange, Pearl Harbor,Petitioners/Cross- Respondents,v.FEDERAL LABOR RELATIONS AUTHORITY, Respondent/Cross-Petitioner.DEPARTMENT OF the NAVY, Marine Corps Exchange, Pearl Harbor,et al., Petitioners/Cross-Respondents,v.FEDERAL LABOR RELATIONS AUTHORITY, Respondent/Cross-Petitioner.

Nos. 87-7161, 87-7226, 87-7220 and 87-7276.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted Feb. 10, 1988.Decided Feb. 26, 1988.

Before FARRIS, BRUNETTI and DAVID R. THOMPSON, Circuit Judges.

MEMORANDUM^* 

We remand the cases to the Federal Labor Relations Authority with permission to the Departments to present additional evidence on the issue of whether there is a compelling need for the regulation. We recognize that the evidence which will now be submitted is not "newly discovered." We remand, however, because we find the evidence "material" and we deem the unsettled state of the law at the time of the prior hearing to be a "reasonable ground" for the military's failure to offer it at the prior hearing. The agency's good faith reasonable view that it was not necessary to present additional evidence is sufficient to bring its failure to present that evidence within the contemplation of 5 U.S.C. § 7123(c).

REMANDED.