SUPREME COURT OF THE UNITED STATES
_________________
No. 21–1454
_________________
THE OHIO ADJUTANT GENERAL’S DEPARTMENT,
et al., PETITIONERS
v. FEDERAL LABOR RELATIONS
AUTHORITY, et al.
on writ of certiorari to the united states
court of appeals for the sixth circuit
[May 18, 2023]
Justice Alito, with whom Justice Gorsuch
joins, dissenting.
Petitioners, the Ohio National Guard, the Ohio
Adjutant General, and the Ohio Adjutant General’s Department,
challenge the lawfulness of an order of the Federal Labor Relations
Authority (FLRA). That order directs petitioners to honor their
existing agreement with the union that represents 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 5; see 5 U. S. C. §7105(g)(3).
But the Court stops short of answering that question, holding
instead that petitioners “act as a federal ‘agency,’ ”
ante, at 1, “exercise the authority of ” a covered
agency,
ante, at 7, and even “functio[n] as an agency,”
ante, at 6. 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
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) (slip op., at 2);
ante, at 2–3. 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
deprivations of rights under state law, against a state adjutant
general);
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 officer 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’ theory are not nearly as odd as
the majority claims, and a plain reading of the statutory text
leads ineluctably to the conclusion 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
language 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 organizations, and thus the only question
before us is whether they are “agenc[ies].”
Third, “agency,”
a defined term in the FSLMRS, means, with certain exceptions not
relevant here, “an Executive agency.” §7103(a)(3).
Fourth,
an “Executive agency” is defined as “an Executive department, a
Government corporation, [or] an independent establishment.” §105.
Fifth, no petitioner is listed among the executive
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 establishment (
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 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 7, and (3)
pre-FSLMRS administrative practice supports the FLRA’s exercise of
jurisdiction. None of these grounds justifies 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
proposition that the technicians are federal employees, are subject
to federal civil-service requirements, and are employed under
federal law.
Ante, at 3, 7–8, 11. The Court posits that “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.”
Ante, at 8. 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 petitioners are obligated to “safeguard” the
technicians’ bargaining 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
judicial 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,
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 private right of
action, see,
e.g.,
Alexander v.
Sandoval,
532 U.S.
275, 293 (2001), or the defendant may have a valid immunity
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. “Administrative
agencies are creatures of statute,”
National Federation of
Independent Business v.
OSHA, 595 U. S. ___, ___
(2022) (
per curiam) (slip op., at 5), and accordingly
“have only those powers given to them by Congress,”
West
Virginia v.
EPA, 597 U. S. ___, ___ (2022) (slip
op., at 19). If Congress wants the FLRA to have authority to enter
an order against any of 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”).[
1]*
2
Second, the Court reasons that petitioners, in
supervising the technicians, “exercise the authority of the
Department of Defense, a covered agency.”
Ante, at 7. The
Court approvingly relates respondents’ argument that, while
petitioners may not
be agencies, “the components,
representatives, and agents of an agency may be required to comply
with the Statute.”
Ante, at 6. 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.”
Ante, at 7 (emphasis added). And it finds 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 7–8. 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 officer in the
Department of the Interior is disqualified from hearing a case,
that officer must report that information “to the Secretary of the
Interior
or such officer as he may designate.” 43
U. S. C. §101 (emphasis added). The designated officer
does not become the Secretary by virtue of having been designated
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 necessarily
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
“exercise the authority of ” an agency in supervising the
technicians similarly fails.
Ante, at 7. One entity may
augment 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 delegation
of authority, however, does not turn the latter entity
into
the former one. That petitioners exercise authority 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 authorization. See
ibid.
To be sure, the official 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 bargain with the technicians, but on whether
those obligations may be enforced against petitioners as if they
are “agenc[ies].” 5 U. S. C. §7105(g)(3). And on that
score, saying the Departments’ designation transforms petitioners
into agencies, with all the legal ramifications of that label, is
no more sensible than saying the officer the Secretary of the
Interior designates to receive disqualification notices becomes,
like the Secretary of the Interior, a principal officer of the
United States subject to Senate confirmation. 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
unpersuasive on its own terms. See Mississippi National Guard, 172d
Military Airlift Group (Thompson Field), Asst. Sec.
Labor/Management Reports (A/SLMR) No. 20 (
Thompson
Field).
Section 7135(b) provides that “[p]olicies,
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].” This
language merely directs that, absent specific abrogation by the
FSLMRS or reconsideration by the appropriate executive officer,
prior administrative policies, regulations, and procedures 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 “continued” pre-FSLMRS administrative
practice.
Ante, at 9.
If that is all that the saving clause did,
however, I fail to see why it is relevant here. Congress’s
directive to “continu[e]” existing administrative practices does
not evince approval of any particular practice or prevent a court
from saying 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 . . .
interpretation[s] of the Executive Order” and “did not intend for
the [FLRA] or the courts to pay any deference to [such earlier]
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
prevent the slate from being wiped clean until the [FLRA] and the
courts could interpret the [FSLMRS] in a manner consistent 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 10.
Although the majority’s historical-practice
argument is flawed at the foundation because it misreads §7135(b),
the single administrative decision it cites in support of its
argument 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 federal
employees; that Executive Order No. 11491 is categorically “not
applicable to the State of Mississippi”; and that bargaining with a
technicians’ union would violate Mississippi law.
Thompson
Field, at 3–5.
The Mississippi Adjutant General did not make
the argument 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 Secretary of Labor relied principally on the fact that
dual- status civilian technicians are federal employees and that
the protections 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 10, that observation was made in the course of rejecting the
Adjutant General’s argument that
Mississippi law did not
permit him to bargain with a labor organization.
Thompson
Field, at 7. 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.
A single administrative decision, like a single
or even “a smattering of lower court opinions,” is ordinarily not
especially probative of statutory meaning.
BP p.l.c. v.
Mayor and City Council of Baltimore, 593 U. S. ___, ___
(2021) (slip op., at 11); see also
George v.
McDonough, 596 U. S. ___, ___ (2022) (slip op., at 5)
(explaining that a “
robust regulatory backdrop” may “fil[l]
in the details” of a statutory scheme (emphasis added)). The saving
clause does not render this case an exception. Consequently, a
single administrative decision by an Assistant Secretary 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.
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.
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