Ohio Adjutant General’s Dept. v. FLRA, 98 U. S. ____ (2023) is a case heard by the Supreme Court in his January sitting. The question presented was whether the Federal Labor Relations Authority (FLRA) could exercise his authority, under the Federal Service Labor-Management Relations Statute (FSLMRS), on the Ohio Adjutant General in relation to his duty, under the Technicians Act of 1968, to “employ and administer” dual-status technicians. 32 U. S. C. §709(d). Justice Thomas gave the opinion of the Court, while Justice Alito dissented, joined by Justice Gorsuch. The dissent, that we will consider below, is particularly interesting for its analysis of the Statue at issue.
Justice Thomas “start[ed] where [the Court] always do: with the text of the statute.” Van Buren v. United States, 593 U. S. ___, ___ (2021) (slip op., at 5). In particularly, with the FSLMRS and the Technicians Act. In fact, the dual-status technicians, such “rare bird[s]” Babcock v. Kijakazi, 595 U. S. ___, ___ (2022) (slip op., at 2), had given the Court hard times interpreting their peculiar role. In fact, as Justice Thomas reminds us, those technicians “occupy both civilian and military roles” Ohio Adjutant General’s Dept. v. FLRA, 98 U. S. ____ (2023) (slip op., at 3). The Technicians Act establish that those dual-status technicians are “employee[s] of the Department of the Army or the Department of the Air Force, as the case may be, and […] employee[s] of the United States.” 32 U. S. C. §709(e). This provision in particular is of paramount importance in this case. In fact, the question for the Court is whether the Ohio Adjutant General is subject to the FLRA authority to “investigate” charges against “agency or labor organization” and eventually “require” the entity “to cease and desist from violations of [the FSLMRS] and require it to take any remedial action it considers appropriate.” 5 U. S. C. §§7118(a)(1)–(2), 7105(g)(3).
The Statue protects, among others, the right of the employees to “form, join, or assist any labor organization, or to refrain from any such activity, freely and without fear of penalty or reprisal.” §7102. Furthermore, the FSLMRS establishes that “each employee shall be protected in the exercise of such right.” Ibid., and “tasks [the FLRA] with administering th[e FSLMRS’] framework, including by investigating and adjudicating labor disputes.” Ohio Adjutant General’s Dept. slip op., at 2.
Under the Statue, 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 FSLMRS. §§7116(a)(1). Furthermore, agencies shall not “refuse to consult or negotiate in good faith with a labor organization as required by” the Statute, or “otherwise fail or refuse to comply with any provision of” the Statute. §§7116(a)(5), (8). In general, they may refrain from committing “unfair labor practice” at large.
Nonetheless, the Ohio Adjutant General didn’t challenge those obligations directly, but it asserted instead that, under the word of the Statue, he can’t fit in the definition of “agency”. §7118(a)(1). In fact, the jurisdictional provision of the Statue limits the FLRA’s authority to “agency or labor organization” and defined them quite precisely. §7118(a)(2). The Statue clarifies that an agency is “an Executive agency”. §7103(a)(3). Justice Thomas clarifies that in Title 5 this definition fit those of “an Executive department, a Government corporation, and an independent establishment.” §105. These firsts are the “15 Cabinet-level Departments” Ohio Adjutant General’s Dept. slip op., at 6. Instead, the law defines the “Government corporation” as those “corporation owned or controlled by the Government of the United States,” §103. To the contrary, “independent establishments” are “establishment in the executive branch”, specifying that they cannot be “Executive department, military department, Government corporation, or part thereof, or part of an independent establishment,” §104(1).
The Court quickly concluded that the Guard, in favor of which the Ohio Adjutant General Department intervened, was surely not a “Government corporation”, neither an “independent establishment”. Nonetheless, Justice Thomas focused on the definition of “Executive department” and underlined the fact that the “Department of Defense” is one. §101. While the Ohio Adjutant General emphasizes that the Guard is not one of the 15 cabinet-level Department, the FLRA stressed that they “exercise federal authority in employing dual-status technicians” and that they should be regarded as an agency. Ohio Adjutant General’s Dept. slip op., at 6.
The majority focused on the role and the activity that the Guard carried out. In fact, while recognizing that the Guard does not fall directly within the definition of “agency”, Justice Thomas observed that the technicians are “employee[s] of the Department of the Army or the Department of the Air Force” and “employee[s] of the United States.” 32 U. S. C. §709(e). More broadly, they are employees of the Department of Defense, which is one of the 15 cabinet-level department. Hence, when the Guard and the Ohio Adjutant General “employ and administer” the technicians, they “exercise the authority of the Department of Defense.” Ohio Adjutant General’s Dept. slip op., at 7.
In addition, the Court pointed at the word of the Statue. In fact, the law establishes that the “adjutant general” should be “designated by the Secretary [of the Army or of the Air Force] under section 709[(d)] of title 32” 5 U. S. C. §2105(a)(1)(F). This designation is, for the Court, an indicator that reinforces the assumption the adjutant general “exercises federal authority” Ohio Adjutant General’s Dept. slip op., at 6. This designation is hence “the sole basis for petitioners’ authority to employ technicians performing work in their federal civilian roles” and reinforce the fact that, for the Court, the Guard “act[s] on behalf of—and exercise[s] the authority of—a covered federal agency when they supervise dual-status technicians.” Id. at 7. Justice Thomas pointed at the fact that, because the technicians are federal employees, “it would be passing strange” if they “were supervised by an entity not required to safeguard the rights guaranteed employees under the Statute.” Id. 8. For the Court hence, the Guard and the Adjutant General, even if they are not agencies, when exercising the Department’s authority are subject to the obligations of the FSLMRS that are incumbent upon it and the FLRA supervision. The Court ended its opinion by doing some consideration based on some pre-FSLMRS precedents that, in their view, supported their interpretation. We will consider this “historical practices” below.
I nonetheless found, at this point, very interesting to consider the objections raised by Justice Alito and Gorsuch. The two justices, started by a “plain reading of the statutory text” Ohio Adjutant General’s Dept. v. FLRA, 98 U. S. ____ (2023) (Alito, J, dissenting) (slip op., at 2).
Justice Alito stick to the original question: “whether any […] obligations can be enforced by means of an order from the FLRA” Id. (slip op., at 4).
First, the two dissenters agreed on the fact that the Ohio Adjutant General couldn’t be an agency in itself. Nonetheless, because “it is so clear that no petitioner is an “agency””, in their view, “the Court sidesteps the issue”, resting its decision “on three main grounds” none which nonetheless “justifies the conclusion that any of the petitioners is an “agency” subject to the FLRA’s remedial authority.” Id. (slip op., at 3).
Hence, the dissenters focused their attention on the three main grounds on which in their view the majority’s opinion rested. First: “the dual status technicians are federal employees” Ibid.; second: “petitioners “exercise the authority of ” a covered agency as components or representatives of that agency” Ibid. (quoting Ohio Adjutant General’s Dept. at 7); third: “pre-FSLMRS administrative practice supports the FLRA’s exercise of jurisdiction.”.
The two Justices agreed on the reasoning of the majority, which couldn’t establish that the Ohio Adjutant General was an “agency” per se within the meaning of the FSLMRS. Nonetheless, for them the inquiry should have stopped there. In fact, for Justice Alito if the text is “‘unambiguous’” the statutory interpretation not only “begins with the statutory text”, but it “ends there as well” National Assn. of Mfrs. v. Department of Defense, 583 U. S. 109, 127 (2018).
Acknowledging that “Administrative agencies are creatures of statute,” National Federation of Independent Business v. OSHA, 595 U. S. ___, ___ (2022) (per curiam) (slip op., at 5), their power should be strictly limited to the words of the Statue. In fact, those administrations “have only those powers given to them by Congress,” West Virginia v. EPA, 597 U. S. ___, ___ (2022) (slip op., at 19). In relation to the Court’s “remedial authority”, Justice Alito pointed out that “[the Court] regularly acknowledge many potential impediments to granting a judicial remedy” Ohio Adjutant General’s Dept. v. FLRA, 98 U. S. ____ (2023) (Alito, J, dissenting) (slip op., at 4). Hence, in their view, such a decision wouldn’t “be passing strange” supra, because “agency’s remedy may be set aside where it “is unwarranted in law”” Ohio Adjutant General’s Dept., 98 U. S. ____ (2023) (Alito, J, dissenting) (slip op., at 4) (quoting American Power & Light Co. v. SEC, 329 U. S. 90, 112–113 (1946)).
Secondly, the dissent point at the designation problem. In fact, the majority, acknowledging that the Guard was not an “agency”, underlined that still “the components, representatives, and agents of an agency may be required to comply with the Statute.” Ohio Adjutant General’s Dept., 98 U. S. ____ (2023) (slip op., at 6). Furthermore, Justice Alito underlined that “a “designat[ion]” to exercise the authority of an “agency” does not turn the designee into an agency.”, tacking as an example the designation made by the Secretary of the Interior pursuant to 43 U. S. C. §101. Ohio Adjutant General’s Dept., 98 U. S. ____ (2023) (Alito, J, dissenting) (slip op., at 6). Focusing on the question presented, the dissent acknowledged that the Guard could be subject to the obligation set forth in the Statue but stressed that the problem was “whether those obligations may be enforced against petitioners as if they are “agenc[ies].”” Id. (slip op., at 7) (quoting 5 U. S. C. §7105(g)(3)).
Finally, the majority had pointed to the historical practice. In particular they examined the Executive Order No. 11491, “the precursor to the current FLRA” Ohio Adjutant General’s Dept., 98 U. S. ____ (2023) (slip op., at 9). Congress when passed the FSLMRS included a “saving clause” which establishes that: “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 specific provisions of [the Statute] or by regulations or decisions issued pursuant to [the Statute].” 5 U. S. C. §7135(b). Justice Thomas had pointed to Mississippi National Guard, 172nd Military Airlift Group (Thompson Field), et. al., A/SLMR No. 20., a 1971 Mississippi National Guard case. In this case, the Assistant Secretary of Labor, acting under Executive Order 11491, rejected the Mississippi Guard argument that the obligations set forth in Executive Order 11491 weren’t incumbent upon them because the employees were “under the operational control of the Adjutant General of the State of Mississippi, who is appointed and employed pursuant to State law” Id. at 2. The majority relied on this historical practice reasoning that, “see[ing] nothing [that] weaken the force of th[e Thompson Field] presumption here” the decision should “remain in full force and effect.” §7135(b).
The dissent couldn’t agree. Justice Alito argued that the “saving clause” “does not evince approval of any particular practice or prevent a court from saying that a particular practice has been unlawful all along” Ohio Adjutant General’s Dept., 98 U. S. ____ (2023) (Alito, J, dissenting) (slip op., at 7-8). He considered that in Thompson Field the Assistant Secretary “was not addressing the question whether being an “agent” of those Secretaries rendered the Adjutant General sufficiently “like an agency” to be subject to federal remedial jurisdiction.” Id. (slip op., at 9). Furthermore, “A single administrative decision, […] is ordinarily not especially probative of statutory meaning.” Ibid.
In conclusion, because “no petitioner is an “agency” within the meaning of §7105(g)(3),” Justice Alito and Gorsuch would have hold “that petitioners fall outside the remedial jurisdiction of the FLRA.” Ibid.
Some could argue that contrary to what was set forth last term in OSHA and West Virginia, the majority adopted a less textualist approach in determining if the Guard and the Ohio Adjutant General qualify as “agency”. This only proves that the “rare bird[s’]” cases, as the Court defines them, are particularly technical and though cases, for the Justices too, like many agencies related disputes. We can hence consider that the agencies related cases that are next to come, like Loper Bright Enterprises v. Raimondo next term, will keep all the expectations.