Ohio Adjutant General's Dept. v. FLRA

PRELIMINARY PRINT
Volume 598 U. S. Part 2
Pages 449–470
OFFICIAL REPORTS
OF
THE SUPREME COURT
May 18, 2023
Page Proof Pending Publication
REBECCA A. WOMELDORF
reporter of decisions
NOTICE: This preliminary print is subject to formal revision before
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OCTOBER TERM, 2022 449
Syllabus
OHIO ADJUTANT GENERAL’S DEPARTMENT et al. v.
FEDERAL LABOR RELATIONS AUTHORITY et al.
certiorari to the united states court of appeals for
the sixth circuit
No. 21–1454. Argued January 9, 2023—Decided May 18, 2023
The Federal Service Labor-Management Relations Statute (FSLMRS)
provides for collective bargaining between federal agencies and their
employees' unions; bars each from committing unfair labor practices;
and establishes the Federal Labor Relations Authority (FLRA) to in-
vestigate and adjudicate labor disputes. See 5 U. S. C. § 7101 et seq.
At issue here, the American Federation of Government Employees,
Local 3970, AFL–CIO is the exclusive representative of certain federal
civil-service employees known as dual-status technicians who work
for the Ohio National Guard. After their prior collective-bargaining
agreement (CBA) expired, petitioners here—the Ohio National Guard,
the Ohio Adjutant General, and the Ohio Adjutant General's Depart-
ment (collectively the Guard)—asserted that the Guard was not bound
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by the FSLMRS when interacting with the Guard's dual-status techni-
cians. The Union subsequently fled an unfair labor practice complaint
with the FLRA to resolve the dispute. Pointing to the fact that the
FLRA only has jurisdiction over labor organizations and federal agen-
cies, petitioners argued that the Guard was not an “agency” and that
dual-status technician bargaining-unit employees were not “employees”
for purposes of the FSLMRS. The Administrative Law Judge issued
a recommended decision fnding that: the FLRA had jurisdiction over
the Guard; the dual-status technicians had collective-bargaining rights
under the FSLMRS; and the Guard's actions in repudiating the CBA
violated the FSLMRS. A divided panel of the FLRA adopted the
ALJ's fndings, conclusions, and remedial order. Petitioners sought re-
view in the Sixth Circuit, which denied relief.
Held: The FLRA had jurisdiction over this labor dispute because a State
National Guard acts as a federal agency for purposes of the FSLMRS
when it hires and supervises dual-status technicians serving in their
civilian role.
The question whether petitioners are an “agency” for purposes of the
FSLMRS when they act as supervisors of dual-status technicians is
bounded by a series of defned statutory terms. 5 U. S. C. § 7116(a)(1).
The FSLMRS defnes “agency” to include the Department of Defense.
§ 7103(a)(3). And each dual-status “technician . . . is an employee of
450 OHIO ADJUTANT GENERAL'S DEPT. v. FLRA
Syllabus
the Department of the Army or the Department of the Air Force.” 32
U. S. C. § 709(e); see also 10 U. S. C. § 10216(a)(1)(A). Those Depart-
ments, in turn, are components of the Department of Defense.
§§ 111(b)(6) and (8). Components of covered agencies plainly fall within
the reach of the FSLMRS. See 5 U. S. C. §§ 7103(a)(12), 7112(a). Thus,
when petitioners employ dual-status technicians, they—like components
of an agency—exercise the authority of the Department of Defense, a
covered agency.
The statutory authority permitting the Ohio Adjutant General to em-
ploy dual-status technicians as civilian employees in the federal civil
service reinforces this point. See 5 U. S. C. § 2105(a)(1)(F). Congress
has required the Secretaries of the Army and Air Force to “designate”
adjutants general “to employ and administer” technicians. 32 U. S. C.
§ 709(d). That designation is the sole basis for petitioners' authority
to employ technicians performing work in their federal civilian roles.
Here, a 1968 order of the Secretary of the Army “designate[s]” and
“empower[s]” each adjutant general “to employ and administer the
Army National Guard technicians authorized for his State . . . as the
case may be.” General Order No. 85, ¶3. Accordingly, dual-status
technicians are ultimately employees of the Secretaries of the Army and
the Air Force, and petitioners are the Secretaries' designees for pur-
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poses of dual-status technician employment. Should a state adjutant
general wish to employ federal dual-status technicians, the adjutant
general must do so pursuant to delegated federal authority and subject
to federal civil-service requirements. See 5 U. S. C. § 2105(a)(1)(F).
The evolution of federal agency-employee relations law and the text
of § 7135(b) lend further support to the FLRA's exercise of authority
over the Guard. Section 7135(b) explicitly continues prior practice
under the provisions of Executive Order No. 11491—the precursor to
the FSLMRS—except where specifcally revoked by the President or
altered by the FSLMRS or corresponding regulations. The 1971 deci-
sion in Thompson Field is on point. See Mississippi National Guard,
172d Military Airlift Group (Thompson Field), Asst. Sec. Labor/Manage-
ment Relations (A/SLMR) No. 20. There, the Assistant Secretary of
Labor—exercising adjudicative authority under Executive Order No.
11491 analogous to the FLRA's—held that Mississippi's National Guard
technicians were employees of the Federal Government under Executive
Order No. 11491. The Assistant Secretary concluded that the State's
adjutant general had “been designated as an agent of the Secretaries of
the Army and the Air Force” in employing and administering dual-
status technicians and that this agency relationship created the obliga-
tion to comply with Executive Order No. 11491. Id., at 7. The defni-
tions of “employee” and “agency” that Thompson Field examined were
Cite as: 598 U. S. 449 (2023) 451
Syllabus
materially identical to those that Congress ultimately adopted in the
FSLMRS. The Court thus ordinarily presumes that the FSLMRS
maintained the same coverage that existed under the prior regime, see,
e. g., George v. McDonough, 596 U. S. –––, –––, and the Court identifes
nothing to weaken that presumption here. Pp. 456–461.
21 F. 4th 401, affrmed.
Thomas, J., delivered the opinion of the Court, in which Roberts, C. J.,
and Sotomayor, Kagan, Kavanaugh, Barrett, and Jackson, JJ., joined.
Alito, J., fled a dissenting opinion, in which Gorsuch, J., joined, post,
p. 461.
Benjamin M. Flowers, Solicitor General of Ohio, argued
the cause for petitioners. With him on the briefs were Dave
Yost, Attorney General, and Michael J. Hendershot, Chief
Deputy Solicitor General.
Nicole Frazer Reaves argued the cause for the federal re-
spondent. With her on the brief were Solicitor General
Prelogar, Deputy Solicitor General Fletcher, and Rebecca J.
Osborne. Andres M. Grajales argued the cause for re-
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spondent American Federation of Government Employees,
Local 3970, AFL–CIO. With him on the brief were Mat-
thew Milledge and David A. Borer.*
*Briefs of amici curiae urging reversal were fled for the State of Mis-
sissippi et al. by Lynn Fitch, Attorney General of Mississippi, Scott G.
Stewart, Solicitor General, and Justin L. Matheny and Anthony M. Shults,
Deputy Solicitors General, and by the Attorneys General for their respec-
tive States as follows: Steve Marshall of Alabama, Treg Taylor of Alaska,
Leslie Rutledge of Arkansas, Jeff Landry of Louisiana, Austin Knudsen
of Montana, John M. O'Connor of Oklahoma, Mark Vargo of South Dakota,
Ken Paxton of Texas, Sean D. Reyes of Utah, and Patrick Morrisey of
West Virginia; for the State of South Carolina by Alan Wilson, Attorney
General, Robert D. Cook, Solicitor General, and James Emory Smith, Jr.,
Deputy Solicitor General; for the America First Policy Institute by Craig
W. Trainor and Pamela Jo Bondi; and for Americans for Fair Treatment
by David R. Dorey.
Briefs of amici curiae urging affrmance were fled for the American
Federation of Labor and Congress of Industrial Organizations et al. by
Harold C. Becker, Andrew Lyubarsky, Bruce Lerner, Ramya Ravindran,
and Theodore T. Green; and for Military Law Scholars by Charles A. Roth-
452 OHIO ADJUTANT GENERAL'S DEPT. v. FLRA
Opinion of the Court
Justice Thomas delivered the opinion of the Court.
This case requires us to determine whether the Federal
Labor Relations Authority (FLRA) properly exercised juris-
diction over an unfair labor practices dispute. On one side
were the Ohio National Guard, the Ohio Adjutant General,
and the Ohio Adjutant General's Department (collectively
petitioners or the Guard). On the other was the American
Federation of Government Employees, Local 3970, AFL–
CIO (Union), which represents federal employees known as
dual-status technicians who work in both civilian and mili-
tary roles for the Guard.
The Union petitioned the FLRA to resolve the dispute.
But, under the Federal Service Labor-Management Rela-
tions Statute (FSLMRS or Statute), the FLRA only has ju-
risdiction over labor organizations and federal “agencies”—
and petitioners insist that they are neither. 5 U. S. C. § 7101et seq. We hold, however, that petitioners act as a federal
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“agency” when they hire and supervise dual-status techni-
cians serving in their civilian role.
I
A
Enacted in 1978, the FSLMRS establishes a comprehen-
sive framework governing labor-management relations in
federal agencies. It secures the right of “[e]ach employee”
“to form, join, or assist any labor organization, or to refrain
from any such activity, freely and without fear of penalty
or reprisal.” § 7102. And, it further guarantees that “each
employee shall be protected in the exercise of such right.”
Ibid. To that end, the FSLMRS provides for collective
bargaining between federal agencies and their employees'
unions, and it bars each from committing unfair labor prac-
feld, Andrew J. Pincus, Paul W. Hughes, Michael B. Kimberly, and
Eugene R. Fidell, pro se.
Cite as: 598 U. S. 449 (2023) 453
Opinion of the Court
tices. See §§ 7102(2) and 7116(a)–(b). For example, an
agency may not “interfere with, restrain, or coerce any em-
ployee in the exercise by the employee of any right under”
the Statute; “refuse to consult or negotiate in good faith with
a labor organization as required by” the Statute; or “other-
wise fail or refuse to comply with any provision of ” the
Statute. §§ 7116(a)(1), (5), (8).
The Statute creates the FLRA and tasks it with adminis-
tering this framework, including by investigating and adjudi-
cating labor disputes. § 7105(a)(2)(G); see also §§ 7104 and
7118(a)(1). It provides that the FLRA's general counsel
“shall investigate” a charge against “any agency or labor or-
ganization” and, if warranted, may issue a complaint call-
ing for a hearing before the FLRA. §§ 7118(a)(1)–(2). The
FLRA is then responsible for “conduct[ing] hearings and re-
solv[ing such] complaints.” § 7105(a)(2)(G). If the FLRA
determines that an agency or a union has engaged in an
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unfair labor practice, it “may require” the entity “to cease
and desist from violations of [the Statute] and require it
to take any remedial action it considers appropriate. ”
§ 7105(g)(3).
This case concerns the Statute's application to a unique
category of federal civil-service employees: dual-status tech-
nicians working for the State National Guards. These “rare
bird[s]” occupy both civilian and military roles. Babcock v.
Kijakazi, 595 U. S. –––, ––– (2022). They serve as “civil-
ian employee[s]” engaged in “organizing, administering,
instructing,” “training,” or “maintenance and repair of sup-
plies” to assist the National Guard. 10 U. S. C. § 10216(a)
(1)(C); see 32 U. S. C. §§ 709(a)(1)–(2); Babcock, 595 U. S.,
at –––. Yet, they must “as a condition of that employment
. . . maintain membership in the [National Guard]” and wear
a uniform while working. 10 U. S. C. § 10216(a)(1)(B); see 32
U. S. C. §§ 709(b)(2)–(4). Except when participating as Na-
tional Guard members in part-time drills, training, or active-
duty deployment, see 32 U. S. C. §§ 502(a) and 709(g)(2), dual-
454 OHIO ADJUTANT GENERAL'S DEPT. v. FLRA
Opinion of the Court
status technicians work full time in a civilian capacity and
receive federal civil-service pay. See Babcock, 595 U. S.,
at ––– – –––; see also 5 U. S. C. § 2101(a).
Importantly, under the Technicians Act of 1968, each dual-
status technician is considered “an employee of the Depart-
ment of the Army or the Department of the Air Force, as
the case may be, and an employee of the United States.”
32 U. S. C. § 709(e). While it is state adjutants general who
“employ and administer” dual-status technicians working for
their respective State National Guard units, they can only
do so pursuant to an express “designat[ion]” of authority by
the Secretary of the Army or the Secretary of the Air Force.
§ 709(d); see also Dept. of the Army, S. Resor, Delegation of
Authority Under the National Guard Technicians Act of 1968
(General Order No. 85, Dec. 31, 1968) (General Order No. 85)
(current order designating the relevant authority).
B
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The parties' collective-bargaining relationship dates back
to 1971, when the Guard recognized the Union as the ex-
clusive representative of its dual-status technicians. They
have since negotiated a number of collective-bargaining
agreements (CBAs), the most recent of which was signed in
2011 and expired in 2014. As the expiration date neared,
the Guard and the Union entered into negotiations for a
new agreement. During this process, in March 2016, they
adopted a memorandum of understanding whereby the Ohio
Adjutant General promised to abide by certain practices con-
tained in the expired agreement. But, later that year, the
Ohio Adjutant General's Department reversed course. It
asserted that it was not bound by the expired CBA and did
not consider itself bound by the FSLMRS when interacting
with dual-status technicians. The Guard also sent letters to
dual-status technician Union members, asking them to sub-
mit the requisite forms to permit the deduction of Union
dues from their pay. The letters advised that, if the techni-
Cite as: 598 U. S. 449 (2023) 455
Opinion of the Court
cians did not promptly submit the forms, the Guard would
cancel dues deductions on their behalf. The Guard ulti-
mately terminated dues withholding for 89 technicians.
The Union subsequently fled unfair labor practice charges
with the FLRA. After investigating, the FLRA general
counsel issued consolidated complaints against the “U. S. De-
partment of Defense, Ohio National Guard,” alleging that
the Guard had refused to negotiate in good faith and in-
terfered with the exercise of employee rights under the Stat-
ute through its treatment of technicians' dues deductions.
App. 16. The Ohio Adjutant General and the Ohio Adjutant
General's Department intervened on the side of the Ohio
National Guard.
Petitioners argued before the Administrative Law Judge
that the Guard was not an “agency” and that dual-status
technician bargaining-unit employees were not “employees”
for purposes of the Statute. The Administrative Law Judge
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issued a recommended decision fnding that the FLRA had
jurisdiction over the Guard, that the dual-status technicians
had collective-bargaining rights under the Statute, and that
the Guard's actions in repudiating the CBA violated the Stat-
ute. It thus ordered petitioners to follow the mandatory
terms of the 2011 CBA, bargain in good faith going forward,
and reinstate Union dues withholding. A divided panel of
the FLRA adopted the Administrative Law Judge's fndings,
conclusions, and remedial order.
The Guard petitioned for review in the U. S. Court of Ap-
peals for the Sixth Circuit, which denied the petition. 21
F. 4th 401 (2021). The Sixth Circuit held that the Guard is
an agency subject to the Statute when it operates in its ca-
pacity as employer of dual-status technicians. The court
further found that dual-status technicians are federal civilian
employees with collective-bargaining rights under the Stat-
ute. Thus, because the FLRA has authority to enforce
those collective-bargaining rights, the court concluded that
this dispute fell within its jurisdiction.
456 OHIO ADJUTANT GENERAL'S DEPT. v. FLRA
Opinion of the Court
We granted certiorari to consider whether the FLRA had
jurisdiction over this labor dispute under the Statute. 598
U. S. ––– (2022).1
II
Under the FSLMRS, it is “an unfair labor practice for an
agency” “to interfere with, restrain, or coerce any employee
in the exercise by the employee of any right under” the Stat-
ute. 5 U. S. C. § 7116(a)(1). The FLRA's jurisdiction over
this unfair labor practices dispute thus turns on whether
petitioners are an “agency” for purposes of the Statute when
they act in their capacities as supervisors of dual-status tech-
nicians, a question bounded by a series of defned terms.
The Statute defnes an “agency” as “an Executive agency,”
with exceptions not relevant here. § 7103(a)(3). Then, the
term “ ``Executive agency,' ” as used in Title 5, “means an
Executive department, a Government corporation, and an in-
dependent establishment.” § 105. And each of those terms
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is separately defned: an “Executive departmen[t]” means
each of 15 Cabinet-level Departments, including “[t]he De-
partment of Defense,” § 101; a “ ``Government corporation'
means a corporation owned or controlled by the Government
of the United States,” § 103; and an “ ``independent establish-
ment' means” “an establishment in the executive branch,”
with exceptions not relevant here, “which is not an Execu-
tive department, military department, Government corpora-
tion, or part thereof, or part of an independent establish-
ment,” § 104(1). It is undisputed that the Guard is neither
a “Government corporation” nor an “independent establish-
ment,” leaving only “Executive department” at issue.
1
We did not grant certiorari to consider petitioners' additional question
presented, which disputed the constitutionality of the FLRA's authority
to regulate the labor practices of state militia members who are not em-
ployed in the service of the United States. Consequently, we address
only the statutory question presented, and our holding is limited to the
unique class of federal employees hired and supervised by state adju-
tants general.
Cite as: 598 U. S. 449 (2023) 457
Opinion of the Court
Petitioners work backwards through the links in the statu-
tory chain. They argue that they are not an Executive de-
partment because they are not listed among the 15 Cabinet-
level Departments specifed in § 101. Thus, they claim, they
are not an “Executive agency” under § 105 and, accordingly,
do not qualify as an “agency” under the Statute. Respond-
ents counter that the components, representatives, and
agents of an agency may be required to comply with the
Statute. And they emphasize that petitioners exercise fed-
eral authority in employing dual-status technicians and must
therefore comply with applicable federal law. Respondents
have the better of the argument.
A
The Guard, when employing dual-status technicians, func-
tions as an agency covered by the Statute. The Statute
defnes “ ``agency' ” to include the Department of Defense,
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one of the enumerated executive Departments in § 101.
§ 7103(a)(3); see §§ 101 and 105. And, each dual-status
“technician . . . is an employee of the Department of the
Army or the Department of the Air Force.” 32 U. S. C.
§ 709(e); see also 10 U. S. C. § 10216(a)(1)(A). Those Depart-
ments, in turn, are components of the Department of De-
fense. 10 U. S. C. §§ 111(b)(6) and (8). And, components of
covered agencies plainly fall within the Statute's reach. 5
U. S. C. §§ 7103(a)(12) (contemplating collective bargaining
between “the representative of an agency” and “the exclu-
sive representative of employees in an appropriate unit in
the agency”) and 7112(a) (contemplating the establishment of
“appropriate” bargaining units “on an agency, plant, installa-
tion, functional, or other basis”). Accordingly, when peti-
tioners employ and supervise dual-status technicians, they—
like components of an agency—exercise the authority of the
Department of Defense, a covered agency.
The statutory authority permitting the Adjutant General
to employ dual-status technicians reinforces this point. Ad-
458 OHIO ADJUTANT GENERAL'S DEPT. v. FLRA
Opinion of the Court
jutants general appoint dual-status technicians as civilian
employees in the federal civil service. See 5 U. S. C.
§ 2105(a)(1)(F) (providing that the term “ ``employee,' ” for
purposes of Title 5, ordinarily includes “an individual . . .
appointed in the [federal] civil service by . . . an adjutant
general designated by the Secretary [of the Army or of the
Air Force] under section 709[(d)] of title 32”). And, Con-
gress has required the Secretaries of the Army and Air
Force to “designate” adjutants general “to employ and ad-
minister” technicians. 32 U. S. C. § 709(d). That designa-
tion is the sole basis for petitioners' authority to employ
technicians performing work in their federal civilian roles,
confrming that petitioners act on behalf of—and exercise the
authority of—a covered federal agency when they supervise
dual-status technicians.
Here, for example, a 1968 order of the Secretary of the
Army “designate[s]” and “empower[s]” each adjutant general
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“to employ and administer the Army National Guard techni-
cians authorized for his State . . . as the case may be.” Gen-
eral Order No. 85, ¶3. Accordingly, dual-status technicians
are ultimately employees of the Secretaries of the Army and
the Air Force, and petitioners are the Secretaries' designees
for purposes of dual-status technician employment. Should
a state adjutant general wish to employ federal dual-status
technicians, he must do so pursuant to delegated federal
authority and subject to federal civil-service requirements.
See 5 U. S. C. § 2105(a)(1)(F). Indeed, it would be passing
strange if dual-status technicians, who qualify as employees
under the Statute, were supervised by an entity not required
to safeguard the rights guaranteed employees under the
Statute. §§ 7102 (providing that “each employee shall be
protected in the exercise of ” his right to join or refrain from
joining a labor association) and 7103(a)(2)(A) (defning an
“ ``employee' ” as “an individual . . . employed in an agency”).
The case caption in this matter refects the Guard's federal
function with respect to hiring dual-status technicians; be-
Cite as: 598 U. S. 449 (2023) 459
Opinion of the Court
fore the FLRA, the case proceeded against the “U. S. De-
partment of Defense, Ohio National Guard,” with the Adju-
tant General and the Adjutant General's Department joining
the suit later as intervenors. App. 16.
Petitioners contend that federalism concerns require us to
read the Statute to exempt them from the FLRA's jurisdic-
tion. But, the FLRA enforces the rights and obligations of
federal civilian employees and their agency employers. Be-
cause adjutants general act on behalf of an agency of the
Federal Government with respect to their supervision of ci-
vilian technicians, their actions in that capacity do not impli-
cate the balance between federal and state powers. See 10
U. S. C. § 10216(a); 32 U. S. C. § 709(e).
B
The evolution of federal agency-employee relations law
and the text of 5 U. S. C. § 7135(b), which functions as the
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Statute's saving clause, lend further support to the FLRA's
exercise of authority over the Guard. Before the FSLMRS
was adopted, “labor-management relations in the federal sec-
tor were governed by a program established” by a series of
Executive Orders “under which federal employees had lim-
ited rights to engage in” collective bargaining. Bureau of
Alcohol, Tobacco and Firearms v. FLRA, 464 U. S. 89, 91–
92 (1983). The Statute's immediate predecessor, Executive
Order No. 11491, established the precursor to the current
FLRA and listed prohibited unfair labor practices for both
federal agency management and unions. See Exec. Order
No. 11491, 3 CFR 861 (1966–1970 Comp.). When Congress
later replaced that Executive Order with the FSLMRS, it
explicitly continued many aspects of the pre-FSLMRS re-
gime: “Policies, regulations, and procedures established
under and decisions issued under Executive Orde[r] 11491 . . .
shall remain in full force and effect until revised or revoked
by the President, or unless superseded by specifc provisions
of [the Statute] or by regulations or decisions issued pursu-
460 OHIO ADJUTANT GENERAL'S DEPT. v. FLRA
Opinion of the Court
ant to [the Statute].” 5 U. S. C. § 7135(b). Thus, “decisions
issued under Executive Orde[r] 11491” supply critical guid-
ance regarding the FLRA's jurisdiction today.
One such decision is directly on point. In the 1971 case
of Mississippi National Guard, 172d Military Airlift Group
(Thompson Field), Asst. Sec. Labor/Management Relations
(A/SLMR) No. 20 (Thompson Field), the Assistant Secre-
tary of Labor—exercising adjudicative authority under Ex-
ecutive Order No. 11491 analogous to the modern FLRA's—
rejected arguments virtually identical to those petitioners
advance here. See id., at 2 (describing the state guard's ar-
gument “that the provisions of Executive Order 11491 did
not apply . . . because the employees involved are under
the operational control of the Adjutant General of the State
of Mississippi, who is appointed and employed pursuant to
State law”). The Assistant Secretary reasoned “that Na-
tional Guard technicians [were] employees within the mean-
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ing of ” the Executive Order and “employees of the Federal
government” under the Technicians Act. Id., at 6. The As-
sistant Secretary then concluded that the adjutant general
had “been designated as an agent of the Secretaries of the
Army and the Air Force” in employing and administering
dual-status technicians and that this agency relationship
created the obligation to comply with Executive Order
No. 11491. Id., at 7.
The defnitions of “employee” and “agency” that Thomp-
son Field examined under Executive Order No. 11491 were
materially identical to those that Congress ultimately
adopted in the FSLMRS. Compare 5 U. S. C. §§ 7103(a)(2)–
(3) (defning “ ``employee' ” as “an individual . . . employed in
an agency, ” and defining “ ``agency' ” as “an Executive
agency,” which § 105 in turn defnes as an executive depart-
ment, a Government corporation, and an independent estab-
lishment) with Exec. Order No. 11491, §§ 2(a)–(b) (defning
“ ``[e]mployee' ” primarily as “an employee of an agency,” and
defning “ ``[a]gency' ” as “an executive department, a Govern-
Cite as: 598 U. S. 449 (2023) 461
Alito, J., dissenting
ment corporation, and an independent establishment”). We
would, therefore, ordinarily presume that the FSLMRS
maintained the same coverage that existed under the prior
regime. See, e. g., George v. McDonough, 596 U. S. –––, –––
(2022); Taggart v. Lorenzen, 587 U. S. –––, ––– – ––– (2019).
We see nothing to weaken the force of that presumption
here. On the contrary, § 7135(b) specifcally demonstrates
Congress' intent to leave the prior regime in place except
where it was specifcally altered. And, because the Presi-
dent has not revoked it and neither the FSLMRS nor associ-
ated regulations have repudiated it, the decision in Thomp-
son Field “remain[s] in full force and effect.” § 7135(b).
* * *
We conclude that petitioners are subject to the authority
of the FLRA when acting in their capacities as supervisors
of dual-status technicians. Each dual-status technician is an
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employee of the Department of the Army or the Department
of the Air Force; those Departments are, in turn, components
of the Department of Defense; and the Department of De-
fense is a covered agency under the Statute. Further, a
designation from the Department of the Army is the sole
basis for petitioners' authority to employ dual-status techni-
cians. Accordingly, petitioners employ federal dual-status
technicians pursuant to delegated federal authority and sub-
ject to federal civil-service requirements. The Statute also
explicitly incorporates prior practice, including the decision
in Thompson Field, which further reinforces our conclusion.
The judgment of the Sixth Circuit is affrmed.
It is so ordered.
Justice Alito, with whom Justice Gorsuch joins,
dissenting.
Petitioners, the Ohio National Guard, the Ohio Adjutant
General, and the Ohio Adjutant General's Department, chal-
462 OHIO ADJUTANT GENERAL'S DEPT. v. FLRA
Alito, J., dissenting
lenge the lawfulness of an order of the Federal Labor Rela-
tions Authority (FLRA). That order directs petitioners to
honor their existing agreement with the union that repre-
sents the dual-status civilian technicians who are members
of the Ohio National Guard and to bargain in good faith with
the union in the future. The Court correctly observes that
the FLRA's ability to enter such an order against petitioners
“turns on whether petitioners are an ``agency' for purposes of
the” Federal Service Labor-Management Relations Statute.
Ante, at 456; see 5 U. S. C. § 7105(g)(3). But the Court stops
short of answering that question, holding instead that peti-
tioners “act as a federal ``agency,' ” ante, at 452, “exercise
the authority of ” a covered agency, ante, at 457, and even
“functio[n] as an agency,” ibid. Because petitioners are not
actually federal agencies, a proposition that the Court does
not dispute, the FLRA lacks jurisdiction to enter remedial
orders against them.
I
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These dual-status civilian technicians are indeed strange
creatures—“rare bird[s,]” as we called them last Term.
Babcock v. Kijakazi, 595 U. S. –––, ––– (2022); ante, at 453–
454. For that reason, any decision we make here may have
odd spillover effects. See, e. g., Nelson v. Geringer, 295
F. 3d 1082, 1084, 1086 (CA10 2002) (considering a Rev. Stat.
§ 1979, 42 U. S. C. § 1983 claim, which is available for depriva-
tions of rights under state law, against a state adjutant gen-
eral); Singleton v. MSPB, 244 F. 3d 1331, 1336–1337 (CA Fed.
2001) (holding that the Merit Systems Protection Board lacks
authority over state adjutants general because they are not
federal employees or agencies); Chaudoin v. Atkinson, 494
F. 2d 1323, 1329 (CA3 1974) (allowing a mandamus action
brought by a civilian technician to proceed against a state
adjutant general based on the court's authority “ ``to compel
an offcer or employee of the United States or any agency
thereof to perform a duty owed to the plaintiff' ” (quoting 28
U. S. C. § 1361)). But the consequences of petitioners' the-
Cite as: 598 U. S. 449 (2023) 463
Alito, J., dissenting
ory are not nearly as odd as the majority claims, and a plain
reading of the statutory text leads ineluctably to the conclu-
sion that petitioners are not “agenc[ies]” within the meaning
of the Federal Service Labor-Management Relations Statute
(FSLMRS or Statute). 5 U. S. C. § 7105(g)(3).
A
“[W]e begin by analyzing the statutory language,” for
“[w]e must enforce plain and unambiguous statutory lan-
guage according to its terms.” Hardt v. Reliance Standard
Life Ins. Co., 560 U. S. 242, 251 (2010). The conclusion that
petitioners should prevail follows from a straightforward
reading of the statute's text.
First, the FSLMRS gives the FLRA remedial jurisdiction
over an entity if it is “an agency or a labor organization.”
§ 7105(g)(3). Second, petitioners are obviously not labor or-
ganizations, and thus the only question before us is whether
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they are “agenc[ies].” Third, “agency,” a defned term in
the FSLMRS, means, with certain exceptions not relevant
here, “an Executive agency.” § 7103(a)(3). Fourth, an “Ex-
ecutive agency” is defned as “an Executive department,
a Government corporation, [or] an independent establish-
ment.” § 105. Fifth, no petitioner is listed among the exec-
utive departments in § 101's exhaustive list. See § 101.
Likewise, no petitioner is either a “Government corporation”
(i. e., a “corporation owned or controlled by the Government
of the United States,” § 103(1)) or an independent establish-
ment (i. e., “an establishment in the executive branch,”
§ 104(1)). Thus, no petitioner is an “agency” within the
meaning of the FSLMRS, and that means that the FLRA
lacks remedial jurisdiction over petitioners under
§ 7105(g)(3).
Interpretation of a statute both “ ``begins with the statutory
text, and ends there as well' ” if the text is “ ``unambiguous.' ”
National Assn. of Mfrs. v. Department of Defense, 583 U. S.
109, 127 (2018). This simple textual analysis shows that
464 OHIO ADJUTANT GENERAL'S DEPT. v. FLRA
Alito, J., dissenting
the FSLMRS's language unambiguously does not allow the
FLRA to direct a remedial order to any petitioner. That
should be the end of the matter.
B
Because it is so clear that no petitioner is an “agency,” the
Court sidesteps the issue. Instead, it rests its decision on
three main grounds. It notes: (1) the dual status technicians
are federal employees, (2) petitioners “exercise the authority
of ” a covered agency as components or representatives of
that agency, ante, at 457, and (3) pre-FSLMRS administra-
tive practice supports the FLRA's exercise of jurisdiction.
None of these grounds justifes the conclusion that any of the
petitioners is an “agency” subject to the FLRA's remedial
authority.
1
The Court refers repeatedly to the uncontested propo-
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sition that the technicians are federal employees, are sub-
ject to federal civil-service requirements, and are employed
under federal law. Ante, at 454, 457–458, 461. The Court
posits that “it would be passing strange if dual-status techni-
cians, who qualify as employees under the Statute, were su-
pervised by an entity not required to safeguard the rights
guaranteed employees under the Statute.” Ante, at 458.
But the question on which this case turns is not whether the
technicians are federal employees or whether they have civil
service or bargaining rights. It is not even whether peti-
tioners are obligated to “safeguard” the technicians' bargain-
ing rights. The question is whether any such obligations
can be enforced by means of an order from the FLRA.
In the context of our own remedial authority, we regularly
acknowledge many potential impediments to granting a judi-
cial remedy, even to a litigant that might be able to prove
that another party has breached its rights. For instance,
we might lack subject-matter jurisdiction over a particular
claim, see, e. g., Steel Co. v. Citizens for Better Environment,
Cite as: 598 U. S. 449 (2023) 465
Alito, J., dissenting
523 U. S. 83, 94–95 (1998), or lack personal jurisdiction over
a particular defendant, see, e. g., Daimler AG v. Bauman,
571 U. S. 117, 121–122 (2014). The plaintiff may lack a pri-
vate right of action, see, e. g., Alexander v. Sandoval, 532
U. S. 275, 293 (2001), or the defendant may have a valid im-
munity defense, see, e. g., Wilson v. Layne, 526 U. S. 603,
605–606 (1999). The fact that litigants with meritorious
claims may not be able to obtain a particular remedy from a
particular source is not “strange,” but perfectly ordinary.
It is no more strange to say in this case that, regardless
of whatever rights and duties the parties may have, the
particular remedy of an FLRA order is unavailable. “Ad-
ministrative agencies are creatures of statute,” National
Federation of Independent Business v. OSHA, 595 U. S.
–––, ––– (2022) (per curiam), and accordingly “have only
those powers given to them by Congress,” West Virginia v.
EPA, 597 U. S. –––, ––– (2022). If Congress wants the
FLRA to have authority to enter an order against any of
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the petitioners, it must give the FLRA that authority. See
American Power & Light Co. v. SEC, 329 U. S. 90, 112–113
(1946) (contemplating that an agency's remedy may be set
aside where it “is unwarranted in law”).*
2
Second, the Court reasons that petitioners, in supervising
the technicians, “exercise the authority of the Department of
Defense, a covered agency.” Ante, at 457. The Court ap-
provingly relates respondents' argument that, while petition-
ers may not be agencies, “the components, representatives,
*Although an order from the FLRA is not available, several mechanisms
exist to remedy breaches of petitioners' obligations. As petitioners con-
cede, the National Guard Bureau may exert its authority via control of
funding and recognition of state guards. See Brief for Petitioners 33–34.
And the Federal Government could bring a suit against petitioners in an
Article III court to enforce the technicians' bargaining rights. See, e. g.,
Seminole Tribe of Fla. v. Florida, 517 U. S. 44, 71, n. 14 (1996).
466 OHIO ADJUTANT GENERAL'S DEPT. v. FLRA
Alito, J., dissenting
and agents of an agency may be required to comply with the
Statute.” Ante, at 457. The Court does not specify which
of these three categories it thinks petitioners fall into. It
says only that petitioners are “like components of an
agency.” Ibid. (emphasis added). And it fnds that they
are “like” components of an agency because they supervise
the technicians pursuant to a “designat[ion]” from the heads
of the Departments of the Army and the Air Force, which
are themselves components of the Department of Defense.
Ante, at 458. Since the Department of Defense is an agency,
the Court reasons that the same must be true of petitioners.
The problem with this reasoning is that a “designat[ion]”
to exercise the authority of an “agency” does not turn the
designee into an agency. Just because A is designated to
exercise the authority of B, it does not follow that A is B.
Here is an example. If an administrative hearing offcer in
the Department of the Interior is disqualifed from hearing
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a case, that offcer must report that information “to the Sec-
retary of the Interior or such offcer as he may designate.”
43 U. S. C. § 101 (emphasis added). The designated offcer
does not become the Secretary by virtue of having been des-
ignated to carry out a duty or exercise authority that would
otherwise rest with the Secretary.
The same is true here. The designation of petitioners by
the Departments of the Army and Air Force to perform some
of those departments' duties and to exercise some of their
authority does not turn petitioners into agencies or necessar-
ily have any effect beyond assigning them those duties and
responsibilities. 32 U. S. C. § 709(d).
The Court's related and highly functionalist argument that
petitioners must be subject to the FLRA because they “ex-
ercise the authority of ” an agency in supervising the techni-
cians similarly fails. Ante, at 457. One entity may aug-
ment the power of another by delegating to it certain
authority. See, e. g., Youngstown Sheet & Tube Co. v. Sawyer,
343 U. S. 579, 635–638 (1952) (Jackson, J., concurring). That
Cite as: 598 U. S. 449 (2023) 467
Alito, J., dissenting
delegation of authority, however, does not turn the latter en-
tity into the former one. That petitioners exercise author-
ity that federal agencies would otherwise hold does not make
them agencies any more than the President is Congress
when he exercises authority pursuant to congressional au-
thorization. See ibid.To be sure, the offcial who makes the designation cannot
delegate authority that he or she does not have. If the
FSLMRS constrains the Departments of the Army and Air
Force in their relationship with the technicians, it stands to
reason that those Departments cannot delegate to adjutants
general the power to supervise the technicians free from
such constraints. As I have explained, though, this case
turns not on whether petitioners have obligations to bar-
gain with the technicians, but on whether those obligations
may be enforced against petitioners as if they are “agen-
c[ies].” 5 U. S. C. § 7105(g)(3). And on that score, saying
the Departments' designation transforms petitioners into
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agencies, with all the legal ramifcations of that label, is no
more sensible than saying the offcer the Secretary of the
Interior designates to receive disqualifcation notices be-
comes, like the Secretary of the Interior, a principal offcer
of the United States subject to Senate confrmation. U. S.
Const., Art. II, § 2.
3
Finally, the Court's reliance on the Statute's “saving
clause,” § 7135(b), and on the Assistant Secretary of Labor's
decision in Thompson Field, is both misplaced and unpersua-
sive on its own terms. See Mississippi National Guard, 172d
Military Airlift Group (Thompson Field), Asst. Sec. Labor/
Management Relations (A/SLMR) No. 20 (Thompson Field).
Section 7135(b) provides that “[p]olicies, regulations, and
procedures established under and decisions issued under Ex-
ecutive Orde[r] 11491 . . . shall remain in full force and effect
until revised or revoked by the President, or unless super-
seded by specifc provisions of [the Statute] or by regulations
468 OHIO ADJUTANT GENERAL'S DEPT. v. FLRA
Alito, J., dissenting
or decisions issued pursuant to [the Statute].” This lan-
guage merely directs that, absent specifc abrogation by the
FSLMRS or reconsideration by the appropriate executive
offcer, prior administrative policies, regulations, and proce-
dures remain just as binding on the Executive Branch as
they were before the adoption of the FSLMRS. The Court
appears to agree, describing the saving clause as having “con-
tinued” pre-FSLMRS administrative practice. Ante, at 459.
If that is all that the saving clause did, however, I fail to
see why it is relevant here. Congress's directive to “con-
tinu[e]” existing administrative practices does not evince ap-
proval of any particular practice or prevent a court from say-
ing that a particular practice has been unlawful all along.
The saving clause “expressly intended to allow both the
[FLRA] and the courts to disregard . . . earlier . . . interpre-
tation[s] of the Executive Order” and “did not intend for the
[FLRA] or the courts to pay any deference to [such earlier]
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interpretations.” INS v. FLRA, 855 F. 2d 1454, 1461 (CA9
1988); see also Department of Air Force v. FLRA, 877 F. 2d
1036, 1041 (CADC 1989) (§ 7135 “was merely intended to pre-
vent the slate from being wiped clean until the [FLRA] and
the courts could interpret the [FSLMRS] in a manner con-
sistent with Congress's intent” (internal quotation marks
omitted)). Prior agency practice under the “materially
identical” language of Executive Order No. 11491 is thus no
obstacle to adopting the straightforward reading of “agency”
the FSLMRS's text requires. Ante, at 460.
Although the majority's historical-practice argument is
fawed at the foundation because it misreads § 7135(b), the
single administrative decision it cites in support of its argu-
ment does not shed much light on the matter at hand anyway.
In Thompson Field, the Adjutant General of the State of
Mississippi raised a number of objections to federal oversight
of the technicians, including that the technicians are not fed-
eral employees; that Executive Order No. 11491 is categori-
cally “not applicable to the State of Mississippi”; and that
Cite as: 598 U. S. 449 (2023) 469
Alito, J., dissenting
bargaining with a technicians' union would violate Missis-
sippi law. Thompson Field, at 3–5.
The Mississippi Adjutant General did not make the ar-
gument that his Department is not an “agency” within
the meaning of the remedial provision of Executive Order
No. 11491.
Moreover, in deciding Thompson Field, the Assistant Sec-
retary of Labor relied principally on the fact that dual-status
civilian technicians are federal employees and that the pro-
tections of Executive Order No. 11491 apply to them. Id.,at 6–7. That analysis does not answer the key question
whether the Mississippi Adjutant General is an “agency”
subject to remedial jurisdiction. And while the Court
quotes the Assistant Secretary's remark that the Adjutant
General is “ ``an agent of the Secretaries of the Army and the
Air Force,' ” ante, at 460, that observation was made in the
course of rejecting the Adjutant General's argument that
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Mississippi law did not permit him to bargain with a labor
organization. Thompson Field, at 7. The Assistant Secre-
tary was not addressing the question whether being an
“agent” of those Secretaries rendered the Adjutant General
suffciently “like an agency” to be subject to federal reme-
dial jurisdiction.
A single administrative decision, like a single or even “a
smattering of lower court opinions,” is ordinarily not espe-
cially probative of statutory meaning. BP p.l.c. v. Mayor
and City Council of Baltimore, 593 U. S. –––, ––– (2021); see
also George v. McDonough, 596 U. S. –––, ––– (2022) (explain-
ing that a “robust regulatory backdrop” may “fl[l] in the
details” of a statutory scheme (emphasis added)). The sav-
ing clause does not render this case an exception. Conse-
quently, a single administrative decision by an Assistant Sec-
retary that does not even address the particular argument
petitioners raise in this case offers no reason to resist the
conclusion that the Ohio Adjutant General's Department is
plainly not a federal agency.
470 OHIO ADJUTANT GENERAL'S DEPT. v. FLRA
Alito, J., dissenting
II
Because no petitioner is an “agency” within the meaning
of § 7105(g)(3), I would reverse the judgment of the Sixth
Circuit and hold that petitioners fall outside the remedial
jurisdiction of the FLRA. I respectfully dissent from the
Court's contrary conclusion.
Page Proof Pending Publication
Reporter’s Note
The attached opinion has been revised to refect the usual publication
and citation style of the United States Reports. The revised pagination
makes available the offcial United States Reports citation in advance of
publication. The syllabus has been prepared by the Reporter of Decisions
for the convenience of the reader and constitutes no part of the opinion of
the Court. A list of counsel who argued or fled briefs in this case, and
Page Proof Pending Publication
who were members of the bar of this Court at the time this case was
argued, has been inserted following the syllabus. Other revisions may
include adjustments to formatting, captions, citation form, and any errant
punctuation. The following additional edits were made:
p. 450, line 10 from bottom, “Reports” is replaced with “Relations”
p. 454, line 15, “No.” is inserted after “Order”
p. 458, line 20, “No.” is inserted after “Order”
p. 460, line 6, “Reports” is replaced with “Relations”
p. 467, line 6 from bottom, “Reports” is replaced with “Relations”