# Ohio Adjutant General's Department v. FLRA/Opinion of Justice Alito

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”).
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.