No. 20-3908

IN THE UNITED STATES COURT OF

APPEALS FOR THE SIXTH CIRCUIT

THE OHIO ADJUTANT GENERAL’S DEPARTMENT, et al.

Petitioners,

v.

FEDERAL LABOR RELATIONS AUTHORITY,

Respondent,

AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, 

LOCAL 3970, AFL-CIO

Intervenors.

ON PETITION FROM THE FEDERAL LABOR 

RELATIONS AUTHORITY

BRIEF FOR RESPONDENT

FEDERAL LABOR RELATIONS AUTHORITY

NOAH PETERS

Solicitor

REBECCA J. OSBORNE

Deputy Solicitor

SARAH C. BLACKADAR

Attorney

Federal Labor Relations

Authority

1400 K Street, N.W.

Washington, D.C. 20424

(202) 218-7906

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TABLE OF CONTENTS

TABLE OF CONTENTS .............................................................................i

TABLE OF AUTHORITIES..................................................................... iii

GLOSSARY..............................................................................................viii

STATEMENT ON ORAL ARGUMENT ....................................................x

INTRODUCTION .......................................................................................1

STATEMENT OF JURISDICTION...........................................................3

STATEMENT OF ISSUES PRESENTED ................................................4

RELEVANT STATUTORY PROVISIONS................................................4

STATEMENT OF THE CASE ...................................................................4

I. The Agency and Union’s collective bargaining relationship 

predates the Statute................................................................................4

II. The Agency unlawfully seeks to end its collective bargaining 

relationship with the Union....................................................................5

III. The Union files multiple ULP charges against the Agency ..........7

IV. The ALJ finds that the Agency committed the ULPs charged by 

the General Counsel and recommends several remedies....................10

V. The Authority adopts the ALJ’s Recommended Decision and 

denies the Agency’s exceptions .............................................................11

SUMMARY OF THE ARGUMENT.........................................................13

STANDARD OF REVIEW........................................................................18

ARGUMENT.............................................................................................19

I. The Agency’s new arguments are barred from this 

Court’s review........................................................................................19

A. The Agency has waived its “plain text” and “statutory context” 

arguments ...........................................................................................23

B. The Agency has waived its constitutional avoidance and 

federalism canon arguments..............................................................26

C. The Agency failed to preserve its challenge to the Authority’s 

order to reinstate canceled union dues allotments...........................27

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D. The Agency has forfeited the argument that dual-status 

technicians are “members of the uniformed services”......................29

II. It is settled law in this Circuit that technicians have collective 

bargaining rights protected by the Statue and that the Agency is 

subject to the Authority’s jurisdiction ..................................................30

III. Even if the Court had jurisdiction to consider the Agency’s new 

arguments, and even if its decision in MANG did not control, these 

arguments should be denied on the merits ..........................................32

A. The Agency’s plain text argument is meritless.........................32

B. The Agency’s statutory context argument is meritless ............36

C. The Agency’s “uniformed services” argument is meritless.......40

D. The Authority can order restoration of the erroneously canceled 

dues allotments...................................................................................42

CONCLUSION .........................................................................................44

FED. R. APP. P. RULE 32(a) CERTIFICATION....................................46

CERTIFICATE OF SERVICE..................................................................46

STATUTORY ADDENDUM

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TABLE OF AUTHORITIES

PAGE(S)

CASES

Alwin Mfg. Co. Inc. v. Nat’l Labor Relations Bd.,

192 F.3d 133 (D.C. Cir. 1999)................................................................21

Am. Fed’n Gov’t Emps., Local 3936 v. FLRA,

239 F.3d 66 (1st Cir. 2001) ....................................................................34

Am. Fed’n of Gov’t Emps., Local 3486,

5 FLRA 209 (1981) .................................................................................39

Ass’n of Civilian Technicians, Inc., 

No. 72A-47, 1 FLRC 615b, 615d (Dec. 27, 1973)..................................16

Ass’n of Civilian Technicians, Mont. Air Chapter No. 29 v. FLRA,

22 F.3d 1150 (D.C. Cir. 1994)................................................................18

Babcock v. Comm’r of Soc. Sec.,

959 F.3d 210 (6th Cir. 2020)............................................................17, 41

Bureau of Alcohol, Tobacco & Firearms v. FLRA,

464 U.S. 89 (1983)..................................................................................18

Chevron, U.S.A., Inc. v. Nat. Res. Def. Council, Inc.,

467 U.S. 837 (1984)................................................................................18

City of Arlington, Tex. v. Fed. Commc’n Comm’n,

569 U.S. 290 (2013)..........................................................................19, 40

Consol. Freightways v. Nat’l Labor Relations Bd.,

669 F.2d 790 (D.C. Cir. 1981)................................................................25

Dep’t of Labor,

60 Comp. Gen. 93, B-199341, 1980 WL 14059 (1980)..........................44

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iv

Dep’t of Treasury v. FLRA,

707 F.2d 574 (D.C. Cir. 1983)................................................................20

Equal Emp’t Opportunity Comm’n v. FLRA,

476 U.S. 19 (1986)..................................................2, 3, 13, 14, 20, 21, 23

Fed. Deposit Ins. Corp. v. FLRA,

977 F.2d 1493 (D.C. Cir. 1992)..............................................................18

Fisher v. Peters,

249 F.3d 433 (6th Cir. 2001)..................................................................31

FLRA v. Mich. Army Nat’l Guard,

878 F.3d 171 (6th Cir. 2017)

........................................1, 2, 3, 14, 17, 30, 31, 32, 33, 35, 36, 39, 41, 42

Ga. State Ch. Ass’n of Civilian Technicians v. FLRA,

18 F.3d 889 (D.C. Cir. 1999)..................................................................20

Highlands Hosp. Corp., Inc. v. Nat’l Labor Relations Bd.,

508 F.3d 28 (D.C. Cir. 2007)..................................................................21

Indep. Union of Pension Emps. for Democracy & Justice,

68 FLRA 999 (2015) .................................................................................5

Janus v. American Federation of State, County, and Municipal 

Employees,

138 S. Ct. 2448 (2018)............................................................................43

Kennedy Ctr. for the Performing Arts,

45 FLRA 835 (1992) ...............................................................................37

Kokkonen v. Guardian Life Ins. Co. of Am.,

511 U.S. 375 (1994)..........................................................................19, 20

Libr. of Cong. v. FLRA,

699 F.2d 1280 (D.C. Cir. 1983)..............................................................18

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v

Lipscomb v. FLRA,

333 F.3d 611 (5th Cir. 2003)............................1, 2, 10, 34, 35, 38, 39, 41

Martin v. Soc. Sec. Admin.,

903 F.3d 1154 (11th Cir. 2018)..............................................................41

Morris v. Off. of Compliance,

608 F.3d 1344 (Fed. Cir. 2010) ........................................................19, 20

Nat’l Ass’n of Gov’t Emps., Local R5-136 v. FLRA,

363 F.3d 468 (D.C. Cir. 2004)..........................................................22, 27

Nat’l Fed’n of Fed. Emps., Loc. 1623 v. FLRA,

852 F.2d 1349 (D.C. Cir. 1988)........................................................36, 39

Nat’l Labor Relations Bd. v. FLRA,

2 F.3d 1190 (D.C. Cir. 1993)..............................................................2, 22

Nat’l Treasury Emps. Union v. FLRA,

414 F.3d 50 (D.C. Cir. 2005)..................................................................19

Nat’l Treasury Emps. Union v. FLRA,

754 F.3d 1031 (D.C. Cir. 2014)......................................18, 19, 20, 23, 29

N.J. Air Nat'l Guard v. FLRA,

677 F.2d 276 (3d Cir. 1982) .......................................................31, 32, 33

P.R. Air Nat’l Guard, 156th Airlift Wing (AMC) Caroline, P.R.,

56 FLRA 174, 179 (2000) .......................................................................34

U.S. Dep’t of the Treasury, Internal Revenue Serv.,

68 FLRA 329, 331 (2015) .......................................................................28

Singleton v. Merit Service Protection Board,

244 F.3d 1331 (Fed. Cir. 2001) ..........................................................9, 16

Springsteen-Abbott v. Sec. & Exch. Comm'n,

989 F.3d 4 (D.C. Cir. 2021)....................................................................21

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vi

Temp-Masters, Inc. v. Nat’l Labor Relations Bd.,

460 F.3d 684 (6th Cir. 2006)..................................................................21

U.S. Dep’t of Commerce v. FLRA,

7 F.3d 243 (D.C. Cir. 1993)....................................................................22

U.S. Dep’t of Def. Nat’l Guard Bureau,

55 FLRA 657 (1999) .............................................................................1, 3

U.S. Dep’t of Def. v. FLRA,

982 F.2d 577 (D.C. Cir. 1993)..........................................................21, 24

U.S. Dep’t of Justice Fed. Bureau of Prisons,

68 FLRA 786 (2015) ...............................................................................28

U.S. Dep’t of the Treasury, Bureau of the Pub. Debt Wash., D.C. v. 

FLRA,

670 F.3d 1315 (D.C. Cir. 2012)..............................................................22

United States v. Lanier,

201 F.3d 842 (6th Cir. 2000)........................................................2, 30, 32

Wright v. Spaulding,

939 F.3d 695 (6th Cir. 2019)......................................................14, 30, 32

STATUTES

5 U.S.C. § 104 ...............................................................................22, 24, 25

5 U.S.C. § 105 ...............................................................................22, 24, 25

5 U.S.C. § 7102 .........................................................................................39

5 U.S.C. § 7103(a)...............................................................................15, 36

5 U.S.C. § 7123(c)............................................................2, 3, 13, 19, 23, 29

5 U.S.C. § 7135(b)...............................................................................15, 37

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10 U.S.C. § 10216(a) ...........................................................................38, 41

32 U.S.C. § 709(e) ...............................................................................32, 38

32 U.S.C. § 709(f)..........................................................................15, 33, 36

32 U.S.C. § 709(g) ...............................................................................15, 33

REGULATIONS

5 C.F.R. § 550.312...............................................................................17, 43

5 C.F.R. § 2423.40(d) ................................................................................29

5 C.F.R. § 2429.19.....................................................................................43

5 C.F.R. § 2429.5.......................................................................................28

OTHER AUTHORITIES

Exec. Order No. 10988, 27 Fed. Reg. 551 (Jan. 17, 1962).......................33

Exec. Order No. 11491, 34 Fed. Reg. 17605 (Oct. 29, 1969) ....................4

H.R. Conf. Rep 114-840 (2016).....................................................16, 17, 35

H.R. Rep. No. 95-984 (1978)...........................................................2, 15, 36

National Defense Authorization Act for Fiscal Year 2017, Pub. L. No. 

114-328 (2016)..................................................................................16, 35

S. Rep. No. 114-255 (2016)...........................................................16, 17, 35

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GLOSSARY

Agency U.S. Department of Defense, Ohio National Guard,

Major General Mark E. Bartman (in his official 

capacity as the Adjutant General of the Ohio National 

Guard), and the Ohio Adjutant General’s Department

ALJ Administrative Law Judge

Authority The Federal Labor Relations Authority’s three-member 

adjudicatory body

Br. Petitioner’s opening brief

CBA Collective Bargaining Agreement

Decision The decision of the Authority in this case, dated June 

30, 2020 (PA 1a-10a)

EO 11491 Executive Order 11491, 34 Fed. Reg. 17605 (Oct. 29, 

1969)

FLRA Respondent, the Federal Labor Relations Authority

NLRA The National Labor Relations Act

NLRB The National Labor Relations Board

PA Petitioner’s Appendix

SA Supplemental Appendix

SF 1187 Standard Form used for commencing employees’ union 

dues allotments

SF 1188 Standard Form used by employees to terminate a 

union dues allotment

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The Statute The Federal Service Labor-Management Relations 

Statute, 5 U.S.C. §§ 7101-7135 (2018)

ULP Unfair Labor Practice

Union Intevenor, American Federation of Government 

Employees Local 3970, AFL-CIO

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STATEMENT ON ORAL ARGUMENT

The FLRA believes that oral argument is unnecessary because 

this case involves a straightforward application of well-settled law.

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INTRODUCTION

The U.S. Department of Defense, Ohio National Guard, the Major 

General Mark E. Bartman, in his official capacity as the Adjutant 

General of the Ohio National Guard, and the Ohio Adjutant General’s 

Department (collectively, the “Agency”) seek to revisit a question that 

several state National Guards have already asked, and the courts and 

the Federal Labor Relations Authority (the “Authority” or “FLRA”) have 

already answered: Does the Authority have the power to protect the 

collective bargaining rights of dual-status technicians (“technicians”) 

employed by state National Guard units?

Courts (including this Circuit) and the Authority have repeatedly 

answered this question “yes.” Over and over again, they have found 

that the Statute covers technicians and that the Authority may remedy 

unfair labor practices (“ULPs”) committed by technicians’ employing 

agencies. See, e.g., FLRA v. Mich. Army Nat’l Guard, 878 F.3d 171 (6th 

Cir. 2017) (“MANG”); Lipscomb v. FLRA, 333 F.3d 611 (5th Cir. 2003); 

U.S. Dep’t of Def. Nat’l Guard Bureau, 55 FLRA 657 (1999). As recently 

as 2017, this Court, after analyzing the Statute at length, concluded 

that it “clearly” provides federal collective-bargaining rights to 

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technicians. MANG, 878 F.3d at 178. The Agency’s suggestion that 

this Court should second-guess MANG’s conclusion is unavailing. For 

one thing, “[i]t is firmly established that one panel of this court cannot 

overturn a decision of another panel; only the court sitting en banc can 

overturn such a decision.” United States v. Lanier, 201 F.3d 842, 846 

(6th Cir. 2000).

For another, many of the Agency’s arguments for overturning 

MANG and similar precedential decisions were never raised with the 

Authority and thus are not properly before this Court. See 5 U.S.C. § 

7123(c) (prohibiting parties from raising an “objection that has not been 

urged before the Authority” to an appellate court absent “extraordinary 

circumstances”); Equal Emp’t Opportunity Comm’n v. FLRA, 476 U.S. 

19, 23 (1986) (“EEOC”); Nat’l Labor Relations Bd. v. FLRA, 2 F.3d 1190, 

1195 (D.C. Cir. 1993) (“NLRB”). 

The Agency’s position is little more than a request that this Court 

disregard decades of settled precedent and strip thousands of federal 

civilian employees of their collective-bargaining rights—rights that they 

have enjoyed since before the Statute was enacted. See H.R. Rep. No. 

95-984, pt. 3, at 5 (1978). 

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Notably, the Agency concedes that its actions violated the Statute. 

(Br. at 22-48.) It has abandoned all the arguments it made before the 

ALJ and the Authority contending otherwise. (See id.; see also SA 712a722a, 786a-801a.)1

This Court should deny the Agency’s Petition for Review.

STATEMENT OF JURISDICTION

The Authority had subject matter jurisdiction pursuant to 

§ 7105(a)(2)(G) of the Statute, which charges the Authority with 

resolving ULP complaints. The Agency, in directing and employing 

technicians, falls under the Authority’s jurisdiction. See, e.g., MANG, 

878 F.3d at 174, 177-78; Lipscomb, 333 F.3d at 613; U.S. Dep’t of Def. 

Nat’l Guard Bureau, 55 FLRA at 660-61.

On the other hand, the Court lacks jurisdiction to hear several 

arguments raised by the Agency in this appeal. Specifically, the Court 

may not consider any “objection that has not been urged before the 

Authority, or its designee.” See 5 U.S.C. § 7123(c); see also EEOC, 476 

 

1 Petitioners’ Appendix is cited as (“PA __”) throughout this brief. 

Respondent’s Supplemental Appendix is cited as (“SA __”).

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U.S. at 23. The Court lacks jurisdiction to consider the new arguments 

the Agency has raised for the first time in its Petition for Review.

STATEMENT OF ISSUES PRESENTED

1. Is the Agency, in directing and employing technicians, an 

“Executive agency” subject to the Authority’s jurisdiction?

2. Can this Court, consistent with 5 U.S.C. § 7123(c), consider 

new arguments that the Agency raised for the first time in its Petition 

for Review?

RELEVANT STATUTORY PROVISIONS

All relevant statutory and regulatory provisions are contained in 

the attached Statutory Addendum. (Add. 1.)

STATEMENT OF THE CASE

I. The Agency and Union’s collective bargaining relationship 

predates the Statute

The collective bargaining relationship between the Agency and 

Union has existed for a half century. The Agency first recognized the 

Union in 1971 under Executive Order 11491, which preceded the 

Statute. See Exec. Order No. 11491, 34 Fed. Reg. 17605 (Oct. 29, 1969) 

(“EO 11491”); Adjutant General Dep’t, State of Oh., Air Nat’l Guard, et 

al., No. 53-2974, 1 A/SLMR 234, 234-36 (May 20, 1971); PA 15a-16a; SA 

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640a. In 1990, the Authority certified the Union as the exclusive 

representative of the Agency’s technicians under the Statute. (PA 16a; 

SA 126.) The parties negotiated a CBA that expired in February 2014 

but remained in force thereafter, as required by the Statute. (SA 640a, 

661a (citing Indep. Union of Pension Emps. for Democracy & Justice, 68 

FLRA 999, 1004 (2015)).)

The Agency and Union had attempted to renegotiate their CBA in 

2012 but failed. (PA 18a.) A month before the CBA expired in 

February 2014, the Agency informed the Union that it would continue 

to honor the mandatory terms of the agreement after expiration. (Id.)

II. The Agency unlawfully seeks to end its collective 

bargaining relationship with the Union

The Agency did not live up to its promise, however. It proceeded 

to violate numerous terms of the CBA that pertained to mandatory 

bargaining topics, committing several ULPs. 

In September 2016, the Agency circulated a memorandum to 

hundreds of employees, including many bargaining-unit members, 

announcing that it was no longer bound by the CBA, that the Agency 

itself was not subject to the Statute, and that the Agency would no 

longer comply with several provisions of the CBA pertaining to 

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mandatory bargaining subjects. (SA 621a-622a.) Specifically, the 

Agency repudiated the CBA’s grievance procedures, announced it would 

no longer grant official time, and said it would change the negotiated 

procedures for hiring, merit promotions, and evaluations. (Id.; PA 27a; 

PA 123a-24a; 126a.) All of these actions occurred without any 

negotiation between the Union and the Agency. (PA 256a-258a.)

Then, beginning in November 2016, the Agency informed 

bargaining-unit members that a large number of SF 1187s, by which 

unit members authorized the Agency to deduct union dues from their 

paychecks, had gone missing. (SA 568a-570a.) The Agency informed 

unit members that they had sixty days to submit new SF 1187s to 

continue dues allotment. (Id.) The Agency also told unit members that 

they could submit an SF 1188 to end their dues deductions. (Id.) The 

Agency had known of the missing forms for years, however, and never 

previously taken any action. (PA 29a.) The Agency did not offer to 

bargain with the Union over the issue before directly communicating 

with its members. (Id.)

Few Union members submitted a new form because they believed 

they had submitted one previously and a second form should not be 

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required. (PA 131a-13a; PA 159a-164a.) Some members viewed the 

Agency’s actions as an excuse for the Agency to identify Union 

supporters and reduce the Union’s financial support. (PA 211a.) When 

some members did attempt to submit new SF 1187s, it became clear 

that the Agency would not honor them. (PA 214a.) After most 

members submitted neither a SF 1187 nor SF 1188, the Agency 

prepared and submitted numerous SF 1188s, signed by a member of the 

human resources department and not the employees themselves, ending 

their dues deductions. (PA 204a-207a.)

In early 2017, the Agency sought to implement changes to its 

negotiated merit promotion and performance appraisal policies without 

affording the Union an opportunity to bargain. (PA 27a.)

III. The Union files multiple ULP charges against the Agency

In March 2017, the Union filed four ULP charges with the FLRA’s 

General Counsel’s Office. (PA 15a.) The FLRA’s General Counsel 

investigated, found merit to the charges, and issued a complaint. (Id.) 

The General Counsel, through its Chicago Regional Office, alleged that 

the Agency “refused to negotiate in good faith” by telling “employees 

that is was no longer bound by the mandatory terms of the expired 

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[CBA] and that it was not obligated to comply with the Statute, and by 

unilaterally implementing new policies regarding union dues 

deductions, grievances, official time, and merit promotions.” (Id.)

Initially, both the Agency and General Counsel moved for 

summary judgment. The ALJ rejected both motions and held a hearing. 

(SA 632a-633a.) After the hearing, both sides filed post-hearing briefs.

In its brief, the General Counsel noted that technicians have long 

enjoyed collective bargaining rights both under the Statute and 

Executive Orders that preceded it. (SA 652a-676a.) The General 

Counsel argued that the statutory scheme and the legislative history 

demonstrated Congress’s clear intent to subject state National Guards 

and Adjutant Generals to the Authority’s jurisdiction. (SA 654a-656a.) 

The General Counsel noted that the Agency had ignored the multitude 

of cases where the federal courts have affirmed the rights of technicians 

to organize and bargain collectively under the Statute. (SA 656a-659a.) 

The General Counsel also argued that the Agency’s actions 

amounted to a repudiation of mandatory terms of the parties’ CBA and 

thus violated the Statute. (SA 659a-673a.) The General Counsel asked 

for several traditional and non-traditional remedies. (SA 674a-675a.) 

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Among other things, the General Counsel sought to compel the Agency 

to reinstate the dues allotments canceled after the September 2016 

memorandum where the employee had not submitted an SF 1188. (SA 

674a.)

In its brief, the Agency argued that the Authority lacked 

jurisdiction over it because the National Guard had not been called into 

service under Article I, Section 8, Clause 15 of the Constitution. (SA 

707a-708a.) Further, the Agency urged that Title 32 of the U.S. Code 

does not define the Adjutant General as a federal employee, and § 7103 

of the Statute does not specifically list the state National Guards as 

“agenc[ies].” (SA 708a.) The Agency also asked the ALJ to rely on the 

Federal Circuit’s decision in Singleton v. Merit Service Protection Board, 

244 F.3d 1331 (Fed. Cir. 2001) and hold that technicians do not have 

bargaining rights under the Statute. (SA 708a-709a.) 

The Agency then argued that, if it is subject to the Statute, its 

actions did not constitute ULPs. (SA 712a-722a). While contesting 

liability, the Agency did not specifically challenge the remedies 

requested by the General Counsel. (SA 707a-722a.)

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IV. The ALJ finds that the Agency committed the ULPs 

charged by the General Counsel and recommends several 

remedies

The ALJ found that the text of both the Technicians Act and the 

Statute, along with their legislative histories, indicate that the 

Authority has jurisdiction over the Agency insofar as the Agency 

supervises and directs technicians. (PA 44a.) The ALJ noted that the 

Technicians Act limits the Authority’s jurisdiction regarding technician 

discipline, specifying that Adjutant Generals have the final say on the 

military aspects of technician employment, but otherwise contains no 

limitations on the Authority’s jurisdiction over state National Guard 

units. (PA 44a-47a.) He further observed that the Technicians Act 

explicitly granted technicians federal civilian employee status with all 

the benefits and rights generally afforded to those employees. (PA 45a.) 

The ALJ relied on Lipscomb v. FLRA, 333 F.3d 611, 613 (5th Cir. 

2003), which held that technicians had collective bargaining rights 

under the Statute. (PA 47a-49a.) The ALJ also cited this Court’s 

decision in MANG, which he found to have clearly and directly 

addressed the Authority’s jurisdiction over the Michigan National 

Guard and Adjutant General. (PA 49a.) 

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In light of this precedent, the ALJ found that technicians had 

collective bargaining rights under the Statute and, in that regard, were 

subject to the Authority’s jurisdiction. (PA 49a-53a.) The ALJ then 

determined that the Agency’s actions were clear violations of the 

Statute. (PA 53a-68a.) The ALJ recommended several remedies, 

including reinstatement of dues allotments and reimbursement to the 

Union of dues that were improperly canceled. (PA 72a-73a.)

V. The Authority adopts the ALJ’s Recommended Decision 

and denies the Agency’s exceptions

The Agency filed exceptions to the ALJ’s recommended decision. 

It argued that the Authority could not regulate state National Guards 

because Congress had not called the militia into the service of the 

United States. (SA 776a-779a.) The Agency also urged that the 

Authority should reject precedent holding that it has jurisdiction over 

technicians. (SA 781a-782a.) In support, the Agency cited the Federal 

Circuit’s decision in Singleton regarding the jurisdiction of the Merit 

System Protection Board (“MSPB”) over technicians. (SA 780a-786a.) 

That was the extent of the Agency’s jurisdictional argument.

The Agency then argued that its actions were not ULPs. (SA 

786a-801a). The Agency ended with a conclusory sentence where, for 

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the first time, it claimed that the ALJ’s recommended remedies were 

inappropriate—despite the fact that the General Counsel had urged 

similar remedies before the ALJ, and the Agency had not specifically 

objected to them. (SA 801a, 807a-809a.)

In response, the General Counsel argued that Congress clearly 

intended that the Authority exercise jurisdiction over state National 

Guards. (SA 835a-839a.) The General Counsel cited precedent 

confirming the Authority’s jurisdiction. (SA 840a-842a.) The General 

Counsel then argued that the ALJ correctly determined that the Agency 

committed the charged ULPs, and that on a number of critical issues 

the Agency did not even except to the ALJ’s findings. (SA 845a-863a.) 

Finally, the General Counsel noted that the Authority’s 

regulations require parties to object to the General Counsel’s requested 

remedy before the ALJ, but the Agency had failed to do so. (SA 863a865a.)

The Authority adopted the ALJ’s recommended decision in full 

and denied the Agency’s exceptions. (PA 1a.) Member Abbott 

concurred, noting that he shared Chairman Kiko’s concerns over 

judicial and Authority precedent articulated in her dissent, but that the 

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Fifth Circuit “has spoken quite decisively on the matter and at least 

four other Circuits have reached similar conclusions.” (PA 6a.) 

Chairman Kiko dissented and raised several new arguments, not urged 

by the Agency, about the application of the Statute to state National 

Guards and Adjutant Generals. (PA 7a-9a.)

This Petition for Review followed.

SUMMARY OF THE ARGUMENT

The Agency’s Petition for Review is based primarily on new 

arguments that it failed to raise in its exceptions briefs to the 

Authority. Those new arguments must fail because the Court lacks 

jurisdiction to consider them. See 5 U.S.C. § 7123(c); see also EEOC, 

476 U.S. at 23. The only ground that the Agency presents to this Court 

in its Opening Brief that was actually raised to the Authority was its 

argument regarding Singleton. (SA 776a-786a.) 

Specifically, the Agency failed to present the following arguments 

to the Authority in its exceptions briefing, and has thus waived them on 

appeal:

1) its arguments based on the text of the Statute (Br. 23-29), 

2) its arguments based on the canon of constitutional avoidance 

(Br 31-34), 

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14

3) its arguments based on the federalism canon (Br. 34-36), 

4) its contention that the Authority’s order to reinstate the 

wrongfully-terminated dues allotments is unenforceable (Br. 

38-39), and

5) its arguments based on the “uniformed services” exception (Br. 

40-42). 

The Agency has not argued that any extraordinary circumstances 

excused its failure to raise these arguments to the Authority. As § 

7123(c) of the Statute is jurisdictional in nature, the Court cannot grant 

the Agency’s Petition on any of these grounds. EEOC, 476 U.S. 23.

Even if the Court had jurisdiction to consider these new 

arguments, the Petition should still be denied on the merits. The Fifth 

Circuit’s thorough and well-reasoned decision in Lipscomb, along with 

this Court’s decision in MANG, govern. See MANG, 878 F.3d at 176-79 

(citing Lipscomb approvingly). In MANG, this Court found that the 

Authority had jurisdiction over state National Guards and Adjutant 

Generals with respect to technician bargaining. Id. Circuit precedent 

demands that the holding in MANG be followed. Wright v. Spaulding, 

939 F.3d 695, 700 (6th Cir. 2019).

But even if MANG did not control, and even if the Agency’s 

arguments had been raised below, the Agency has not presented a 

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15

compelling reason to depart from decades of precedent holding that 

technicians are covered by the Statute. The Agency’s argument that the 

text of the Technicians Act exempts them from the Statute is without 

merit. That Act lists a number of Title 5 provisions that do not apply to 

technicians, but does not list the Statute, which is part of Title 5. See

32 U.S.C. § 709(f), (g). 

The Agency’s arguments also ignore that technicians were widely 

unionized under the Executive Orders that predated the Statute. See 

H.R. Rep. No. 95-984, pt. 3, at 5 (1978). Congress was aware of this fact 

but did not exempt technicians from the Statute’s coverage. See id. 

Section 7135(b) of the Statute states that “[p]olicies, regulations, and 

procedures established under and decisions issued under Executive 

Order[] 11491 . . . shall remain in full force and effect . . . unless 

superseded by specific provisions of this chapter or by regulations or 

decisions issued pursuant to this chapter.” See 5 U.S.C. § 7135(b). In 

passing the Statute, Congress specifically exempted several agencies 

from the Statute’s coverage but did not list state National Guards. See 

5 U.S.C. § 7103(a)(3). Thus, Congress intended that technicians’ 

coverage under EO 11491, and the precedent upholding that coverage, 

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16

be carried over under the Statute. See, e.g., Ass’n of Civilian 

Technicians, Inc., No. 72A-47, 1 FLRC 615b, 615d (Dec. 27, 1973) 

(discussing the scope of technician bargaining under Section 11(a) of EO 

11491). 

Further, when Congress passed legislation explicitly banning 

unionization amongst members of the military, it specifically chose not 

to include technicians in that prohibition. See H.R. Rep. No. 95-894(I), 

reprinted in 1978 U.S. Code Cong. & Ad. News 7575, 7580.

In an effort to undermine the numerous court decisions from this 

and other circuits directly on point, the Agency turns to cases holding 

that technicians do not have MSPB appeal rights. See, e.g., Singleton, 

244 F.3d 1331. But here again the argument is unpersuasive. Those 

cases dealt with specific statutory language governing MSPB appeal 

rights and do not stand for the broad proposition that it is unlawful for 

the Authority to issue orders to protect technicians’ bargaining rights. 

Moreover, Congress superseded Singleton when it passed the National 

Defense Authorization Act for Fiscal Year 2017, Pub. L. No. 114-328 

(2016), which clarified that technicians have MSPB appeal rights. See

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17

S. Rep. No. 114-255, at 139 (2016); H.R. Conf. Rep 114-840, at 1016-17 

(2016)).

Similarly, the Agency’s argument that technicians are not covered 

by the Statute because they are “members of uniformed services” is 

meritless. Not only did the Agency fail to raise that argument before 

the Authority, this Circuit has already adopted the view that 

employment as a dual-status technician is not wholly military in nature 

for purposes of the Social Security Act’s windfall provisions. Babcock v. 

Comm’r of Soc. Sec., 959 F.3d 210, 216 (6th Cir. 2020). Further, this 

Court has squarely rejected the view that cases dealing with the 

applicability of Title VII of the Civil Rights Act of 1964 to technicians 

should control whether the Statute covers technicians. MANG, 878 

F.3d at 178-79 at 178-79.

Finally, the Agency’ argument challenging the Authority’s order to 

restore erroneously cancelled dues allotments is without merit. That 

argument was not presented to the Authority, and the Agency cites 

little support for it. Applicable regulations are clear that the employee, 

not the employing agency, must submit an SF 1188 to change or cancel 

an allotment. 5 C.F.R. § 550.312(c). In violation of those regulations, 

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the Agency submitted SF 1188s on behalf of numerous technicians for 

no other reason than its own recordkeeping failings. The Authority 

properly ordered the Agency to remedy its unlawful conduct in 

cancelling employees’ dues revocations without their consent.

Thus, the Agency’s Petition for Review must be denied.

STANDARD OF REVIEW

Congress gave the Authority responsibility for interpreting and 

administering the Statute. See Bureau of Alcohol, Tobacco & Firearms 

v. FLRA, 464 U.S. 89, 97 (1983); Ass’n of Civilian Technicians, Mont. 

Air Chapter No. 29 v. FLRA, 22 F.3d 1150, 1153 (D.C. Cir. 1994) (citing 

Chevron, U.S.A., Inc. v. Nat. Res. Def. Council, Inc., 467 U.S. 837, 842-

43 (1984) (“Chevron”)). Thus, this Court defers to the Authority’s 

construction of the Statute. Nat’l Treasury Emps. Union v. FLRA, 754 

F.3d 1031, 1041 (D.C. Cir. 2014) (“NTEU 2014”) (quoting Libr. of Cong. 

v. FLRA, 699 F.2d 1280, 1284 (D.C. Cir. 1983)). 

In particular, the Court “accord[s] considerable deference to the 

Authority when reviewing a ULP determination, recognizing that such 

determinations are best left to the expert judgment of the FLRA.” Fed. 

Deposit Ins. Corp. v. FLRA, 977 F.2d 1493, 1496 (D.C. Cir. 1992) 

Case: 20-3908 Document: 22 Filed: 04/29/2021 Page: 29
19

(internal quotation marks omitted). In addition, the Authority receives 

Chevron deference when it interprets ambiguities in its organic statute 

that concern the scope of its own jurisdiction. City of Arlington, Tex. v. 

Fed. Commc’n Comm’n, 569 U.S. 290, 293 (2013).

Moreover, under § 7123(c) of the Statute, this Court may not 

consider any “objection that has not been urged before the Authority, or 

its designee . . . unless the failure or neglect to urge the objection is 

excused because of extraordinary circumstances.” 5 U.S.C. § 7123(c); 

accord NTEU 2014, 754 F.3d at 1040 (“[w]e have enforced [§] 7123(c) 

strictly”); Nat’l Treasury Emps. Union v. FLRA, 414 F.3d 50, 59 n. 5 

(D.C. Cir. 2005).

ARGUMENT

I. The Agency’s new arguments are barred from this Court’s 

review

Section 7123(c) of the Statute precludes consideration of the 

arguments that the Agency advances for the first time in its Opening 

Brief. Federal courts are courts of limited jurisdiction, possessing only 

that power authorized by the Constitution and statutes. Kokkonen v. 

Guardian Life Ins. Co. of Am., 511 U.S. 375, 377 (1994); Morris v. Off. of 

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20

Compliance, 608 F.3d 1344, 1346 (Fed. Cir. 2010). Congress may limit 

federal court jurisdiction as it sees fit. Kokkonen, 511 U.S. at 1346.

In § 7123(c) of the Statute, Congress barred judicial review of 

objections not raised before the Authority. See Ga. State Ch. Ass’n of 

Civilian Technicians v. FLRA, 18 F.3d 889, 890 (D.C. Cir. 1999). 

Section 7123(c) of the Statute states in relevant part: “No objection that 

has not been raised before the Authority, or its designee, shall be 

considered by the court, unless the failure or neglect to urge the 

objection is excused because of extraordinary circumstances.” Id.

(emphasis added). The purpose of § 7123(c) is “to ensure ‘that the 

FLRA shall pass upon issues arising under the [Statute], thereby 

bringing its expertise to bear on the resolution of those issues.’” NLRB, 

2 F. 3d at 1195 (quoting EEOC, 476 U.S. at 23). Section 7123(c) is 

jurisdictional in nature, and this Court must consider its application in 

every case, even sua sponte. Id.

Courts “strictly interpret” § 7123(c) so as to preserve the 

Authority’s initial adjudicatory role and the appellate nature of this 

Court’s review. See NTEU 2014, 754 F.3d at 1040 (quoting Dep’t of 

Treasury v. FLRA, 707 F.2d 574, 580 (D.C. Cir. 1983)). A “generalized,” 

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“imprecise,” or “incoherent” objection will not preserve an issue for 

appeal. Highlands Hosp. Corp., Inc. v. Nat’l Labor Relations Bd., 508 

F.3d 28, 33 (D.C. Cir. 2007); U.S. Dep’t of Def. v. FLRA, 982 F.2d 577, 

580 (D.C. Cir. 1993). Instead, “the Petitioner must raise the substance

of her argument below.” Springsteen-Abbott v. Sec. & Exch. Comm'n, 

989 F.3d 4, 8 (D.C. Cir. 2021) (emphasis in original). 

Section 7123(c) is identical to § 10(e) of the National Labor 

Relations Act (“NLRA”). EEOC, 476 U.S. at 27 n. 5. Section 10(e) of the 

NLRA requires a party to put the National Labor Relations Board (the 

“Board”) on notice of the specific grounds for its objections. TempMasters, Inc. v. Nat’l Labor Relations Bd., 460 F.3d 684, 690 (6th Cir. 

2006); Alwin Mfg. Co. Inc. v. Nat’l Labor Relations Bd., 192 F.3d 133, 

144 (D.C. Cir. 1999) (holding a passing objection to a remedy broadly 

was insufficient to put the Board on notice of the exception).

The sua sponte argument of a dissenting Authority member is not 

enough to preserve an issue for appeal under § 7123(c) of the Statute. 

Instead, a party seeking to preserve that argument for judicial review 

must first move for reconsideration before the Authority. Cf.

Contractors’ Labor Pool, Inc. v. Nat’l Labor Relations Bd., 32 F.3d 1051, 

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22

1061-62 (D.C. Cir. 2003). That is, “[§] 7123(c) requires a party to 

present its own views to the Authority in order to preserve a claim for 

judicial review.” Nat’l Ass’n of Gov’t Emps., Local R5-136 v. FLRA, 363 

F.3d 468, 479 (D.C. Cir. 2004) (“NAGE”) (emphasis in original); see also

NLRB, 2 F.3d at 1195-96 (collecting cases); U.S. Dep’t of the Treasury, 

Bureau of the Pub. Debt Wash., D.C. v. FLRA, 670 F.3d 1315, 1319 (D.C. 

Cir. 2012); U.S. Dep’t of Commerce v. FLRA, 7 F.3d 243, 245–46 (D.C. 

Cir. 1993).

In this case, the Agency has raised five new arguments on appeal 

that were not included in its exceptions briefing before the Authority. 

(SA 683a-722a, 751a-811a). The arguments are: the Agency’s “plain 

text” argument based on 5 U.S.C. §§ 104-105 (Br. 23-24); its “statutory 

context” arguments (Br. 26-29); its discussion of the constitutionalavoidance canon (Br. 31-34); its discussion of the federalism canon (Br. 

34-36); its argument that the Authority’s dues-withholding remedy was 

improper (Br. 38-39); and its contention that dual-status technicians are 

exempt from the Statute’s coverage because they are “members of the 

uniformed services” (Br. 40-42.)

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None of those arguments were included in the Agency’s exceptions 

briefing before the Authority, although several were raised sua sponte 

by Chairman Kiko in her dissent. (PA 7a-9a.) They are thus waived, 

and this Court lacks jurisdiction to consider them. See 5 U.S.C. § 

7123(c). Because the Agency’s arguments on appeal bear little 

resemblance to the ones the Agency made in its exceptions briefing, 

they were not “fairly brought” before the Authority. See NTEU 2014, 

754 F.3d at 1041. The Agency has not articulated any extraordinary

circumstances that prevented it from property bringing those 

arguments to the Authority’s attention. See 5 U.S.C. § 7123(c). 

Therefore, § 7123(c) bars this Court from reviewing those arguments. 

EEOC, 476 U.S. at 24.

A. The Agency has waived its “plain text” and “statutory 

context” arguments 

This Court cannot hear the Agency’s “plain text” and “statutory 

context” arguments under § 7123(c) because the arguments were not 

mentioned in the Agency’s exceptions briefing. (SA 776a-786a.) While 

petitions for review often expand upon rationale brought before the 

Authority, entirely new rationales or arguments raised the first time on 

appeal cannot be considered. U.S. Dep’t of Def, 982 F.2d at 580. Here, 

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the Agency has advanced entirely new rationales for why it is not 

subject to the Statute.

The Agency, in its exceptions filed before the Authority, argued as 

“Exception A” that it was exempt from the Statute’s coverage and not 

subject to the Authority’s jurisdiction. (SA 776a-786a.) But the reasons 

it presented in support were very different from those it now relies 

upon. The Agency cited Congress’s military powers under the 

Constitution, the President’s powers as Commander-in-Chief, and the 

Tenth Amendment. (Id.) It noted the Governor of Ohio’s military 

powers under the Ohio Constitution, and urged that the Ohio National 

Guard was “an element of the organized militia of Ohio.” (SA 777a.) 

Then, the Agency discussed the Adjutant General and his status as a 

state employee. (Id.) 

Now, in its brief before this Court, the Agency presents a 

completely different rationale for why it is not subject to the Statute. It 

argues that it is not subject to the Authority’s jurisdiction based on a 

“plain text” reading of the Statue. (Br. 23.) The Agency supports this 

argument with a “chain of definitions” from the Statute and 5 U.S.C. 

§§ 104-105. (Id.) The Agency claims that it is not “an agency” under 

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the Statute because it is not an “executive department[], government 

corporation[], or independent establishment[]” as defined in a different 

statute, 5 U.S.C. § 105. (Br. 24.)

This argument was not articulated by the Agency in its exceptions 

filed with the Authority. The Agency cited the definition of “executive 

agency” under § 7103, but did not include the “chain of definitions” it 

now relies upon, or any references to 5 U.S.C. §§ 104-105. (SA 777a778a.) The Agency’s exceptions before the Authority barely mentioned 

the Statute’s text, and never discussed the definitions and other 

provisions upon which it now relies. (SA 776a-786a; Br. 15, 23-26.) 

This argument surfaces for the first time in the Agency’s Opening Brief, 

and it is exactly the type of argument § 7123(c) bars from judicial 

review. See Consol. Freightways v. Nat’l Labor Relations Bd., 669 F.2d 

790, 793 (D.C. Cir. 1981).

The Agency also presents a “statutory context” argument in its 

Opening Brief that it never raised before the Authority. (Br. 26.) It 

expands on its “plain text” reading of 5 U.S.C. §§ 104-105, stating “[t]he 

exclusion of the state National Guards from the meaning of ‘[e]xecutive 

agency’ is consistent with the overall statutory context with respect to 

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the relationship between the federal military and state national guard.” 

(Id.) The Agency continues with a lengthy discussion of the federal 

government’s power over state National Guards, citing several statutes 

and cases that it never cited to the Authority. (Br. 26-28.) It then 

mentions a “parallel federal agency,” the MSPB, and precedent 

involving the MSPB, to allege that the Authority does not have 

jurisdiction over the Adjutant General. (Br. 28.)

This argument is new, except to extent that the Agency’s 

argument relies on Singleton. (SA 776a-786a.) This new argument is 

also beyond the Court’s jurisdiction as there are no traces of its 

reasoning in the Agency’s exceptions filed with the Authority.

B. The Agency has waived its constitutional avoidance and 

federalism canon arguments

The Agency’s next argument relies on the “constitutionalavoidance canon” and “federalism canon” to support is position that it 

cannot be subject to the Authority’s jurisdiction. (Br. 30, 34.) These 

arguments are being raised for the first time before this Court and are 

thus waived. (PA 9a; SA 776a-777a.) While Chairman Kiko raised 

similar arguments in her dissent, this was not sufficient to preserve 

them for appeal under § 7123(c). NAGE, 363 F.3d at 479. If the Agency 

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27

wished to preserve these arguments for appeal, it had to raise them in 

its exceptions brief or, at a minimum, in a motion for reconsideration. 

Id. at 480. Section 7123(c) requires a party to present its own views to 

the Authority in order to preserve them for judicial review—it cannot 

rely on the dissenting Authority member. Id.

The Agency never presented the “constitutional-doubt canon” and 

“federalism canon” arguments to the Authority. (Compare Br. 18, 30-

33, with PA 9a.) The analysis that the Agency presented in its 

exceptions brief would not in any way have put the Authority on notice 

of these arguments. (Compare SA 776a-777a with Br. 30-36.) As both 

of these arguments were only raised by the dissent and never by the 

Agency itself, they are waived and outside this Court’s jurisdiction 

under § 7123(c).

C. The Agency failed to preserve its challenge to the 

Authority’s order to reinstate canceled union dues 

allotments

The Agency’s argument that the Authority cannot compel the 

Agency to reinstate dues allotments because it does not have SF 1187s 

for these employees was not preserved for appeal. (Br. 38-39.) The 

Agency’s brief, for the first time, articulates a rationale for why such an 

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order violates federal law. (Br. 39.) The Agency failed to make this 

argument at all in either its exceptions brief filed with the Authority or 

its post-hearing brief filed with the ALJ. (SA 683a-722a, 751a-811a.) 

The Agency’s exceptions brief simply asserted that the ALJ’s findings 

were in error because the Authority did not have jurisdiction over the 

Agency and did not commit the charged ULPs; it did not raise any 

specific arguments against the remedies he recommended. (SA 801a.) 

In addition, the Agency had notice that the General Counsel was 

seeking an order restoring lost dues allotments, but failed to raise any 

specific objection to this remedy before the ALJ. (See SA 863a (citing 5 

C.F.R. § 2429.5, U.S. Dep’t of Justice Fed. Bureau of Prisons, 68 FLRA 

786, 787 (2015), U.S. Dep’t of the Treasury, Internal Revenue Serv., 68 

FLRA 329, 331 (2015)).) The Authority’s regulations require the 

Agency to raise any arguments against proposed remedies in the 

proceedings before the ALJ. 5 C.F.R. § 2429.5 (“The Authority will not 

consider any . . . challenges to an awarded remedy that could have been, 

but were not, presented in the proceedings before the” ALJ). 

Thus, the Agency waived this argument even before it filed its 

exceptions with the Authority (which also failed to make this 

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argument). This Court is jurisdictionally-barred from considering the 

Agency’s contentions regarding the supposed impropriety of the 

Authority’s remedy. See NTEU 2014, 754 F.3d at 1040.

D. The Agency has forfeited the argument that dual-status 

technicians are “members of the uniformed services”

The Agency argues that dual-status technicians are not subject to 

the Statute because they are members of the uniformed services. (Br. 

40-47.) In its post-hearing brief before the ALJ, the Agency made a 

cursory effort to raise this argument. (SA 712a.) But the Agency did 

not include the argument in its exceptions briefs to the Authority, and 

thus waived it. (SA 805a-809a.) 

Whether the Agency omitted any support for this argument in its 

exceptions brief deliberately or by accident is of no consequence—it is 

forfeited either way. 5 C.F.R. § 2423.40(d) (“Any exception not 

specifically argued shall be deemed to have been waived.”) (emphasis 

added). As with all of the Agency’s new arguments to this Court, it has 

not even attempted to argue “extraordinary circumstances” excuse its 

failure to raise these arguments to the Authority. This Court thus lacks 

jurisdiction to consider the Agency’s “uniformed services” argument. 5 

U.S.C. § 7123(c).

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II. It is settled law in this Circuit that technicians have 

collective bargaining rights protected by the Statue and 

that the Agency is subject to the Authority’s jurisdiction

All federal courts, including this one, that have been asked to 

consider whether the Statute applies to technicians and state National 

Guard units have concluded it does. This Court settled the issue in 

MANG, when it found that the Statute “clearly” provides labor rights to 

dual-status technicians. MANG, 878 F.3d at 178. 

A panel of this Court cannot overturn the decision of another 

panel of this Court—only the Court sitting en banc may do so. Lanier, 

201 F.3d at 846 (holding that even if the Court was persuaded by the 

new argument, it remains bound by the circuits precedent and “only the 

court sitting en banc can overturn such a decision.”); Wright, 939 F.3d 

at 700 (“Like most circuits, this circuit follows the rule that the holding 

of a published panel opinion binds all later panels unless overruled or 

abrogated en banc or by the Supreme Court.”). 

This Court uses a three-factor test to distinguish matters essential 

to the Court’s holding from dicta. Id. at 701-02. First, “[t]he decision of 

the issue must contribute to the judgment,” second, “it must be clear 

that the court intended to rest the judgment (if necessary) on its 

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31

conclusion about the issue,” and third, “it must be clear that the court 

considered the issue and consciously reached a conclusion about it.” Id. 

In MANG, the agency challenged the power of the FLRA to assert 

jurisdiction over it, citing many of the same cases the Agency now relies 

upon. MANG, 878 F.3d at 178-79 at 178-79 (citing, inter alia, Fisher v. 

Peters, 249 F.3d 433, 438 (6th Cir. 2001)). Specifically, the agency 

contended that the “technicians operate[] in a capacity that is 

‘irreducibly military in nature,’” thus precluding the FLRA from 

exercising jurisdiction. Id. at 178 (quoting Fisher, 249 F.3d at 439). 

MANG rejected that challenge. Id. at 171, 174, 177-79. It held 

that technicians are “clearly” covered by the Statute, and the FLRA has 

jurisdiction over state National Guards and Adjutant Generals for the 

limited purpose of enforcing the Statute. Id. at 178. It stated that, 

“[u]nder the [Statute], the Guard . . . must engage in collective 

bargaining with a union representing Guard technicians[.]” Id. (quoting 

N.J. Air Nat’l Guard v. FLRA, 677 F.2d 276, 286 (3d Cir. 1982).) The 

Court cited Lipscomb approvingly for this same proposition. Id. 

The MANG court’s finding that the FLRA had jurisdiction over 

state National Guard units was essential to its decision. That is 

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32

because 1) the agency specifically challenged the FLRA’s jurisdiction to 

remedy ULPs committed against technicians, and 2) if the FLRA lacked 

jurisdiction over the agency, the other issues in the case would have 

been irrelevant. The question of the Statute’s coverage was an integral 

part of the case and controversy before the Court. Wright, 939 F.3d at 

700; see also MANG, 878 F.3d at 171, 174, 177-79 (discussing the 

FLRA’s jurisdiction over state National Guard units at length). MANG 

is thus binding precedent, and this panel cannot overturn it. Wright, 

939 F.3d at 700-02; Lanier, 201 F.3d at 846. 

III. Even if the Court had jurisdiction to consider the Agency’s 

new arguments, and even if its decision in MANG did not 

control, these arguments should be denied on the merits

A. The Agency’s plain text argument is meritless

Section 709(e) of the Technicians Act states that “[a] technician . . 

. is an employee of the Department 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). With this provision, “technicians, who had 

previously been employees of the states, were declared to be federal 

employees, and were thereby afforded the benefits and rights generally 

provided for federal employees in the civil service.” N.J. Air Nat’l

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Guard, 677 F.2d at 279. This includes collective bargaining rights 

under the Statute. Id. at 284 (“Because, under section 709([e]) [of the 

Technicians Act], Guard technicians are now federal agency employees, 

they are within the scope of the [Statute]”); see also MANG, 878 F.3d at 

174 (under the Technicians Act “dual-status technicians are afforded 

the benefits and rights generally provided for federal employees in the 

civil service, including rights under the [Statute]”) (internal citations 

and formatting omitted). 

Subsections 709(f) and (g) of the Technicians Act exempt 

technicians from specific provisions of Title 5 of the United States Code, 

but they do not exempt technicians from the Statute (which is part of 

Title 5). 32 U.S.C. §§ 709(f),(g). Further, at the time the Technicians 

Act was enacted in 1968, federal employees had collective bargaining 

rights under Executive Order 10988. See Exec. Order No. 10988, 27 

Fed. Reg. 551 (Jan. 17, 1962) (granting “[e]mployees of the Federal 

Government. . . the right, freely and without fear of penalty or reprisal, 

to form, join and assist any employee organization or to refrain from 

any such activity” and providing consultation and bargaining rights to 

duly-recognized federal unions). 

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Thus, for many decades, it has been well-settled by the Authority 

and the federal courts that, in their civilian capacity, technicians enjoy 

the protection of the Statute. P.R. Air Nat’l Guard, 156th Airlift Wing 

(AMC) Caroline, P.R., 56 FLRA 174, 179 (2000), aff’d sub nom., Am. 

Fed’n Gov’t Emps., Local 3936 v. FLRA, 239 F.3d 66 (1st Cir. 2001); 

Lipscomb, 333 F.3d at 616 (collecting cases). The reasoning supporting 

this conclusion is straightforward: 

Federal employees of federal executive agencies, with the 

noted statutory exceptions, are entitled to exercise the rights 

provided in the [Statute]. The civilian technicians are nonexcluded federal employees under the Act, and the [Adjutant 

General] employs those civilian technicians; as the federal 

employer of these federal employees, with full authority over 

such federal employees, the [Adjutant General] is—

notwithstanding his dual capacity as a military officer of the 

State of Mississippi—an agency of the executive department 

of the federal government in the context of these 

proceedings, as are his organizational adjuncts in the 

exercise of that employer-related authority over federal 

employees.

Lipscomb, 333 F.3d at 620.

The Agency’s argument to the contrary rests on a string of 

definitions from other parts of Title 5 and comparisons to other 

statutes. (Br. at 23-25.) These arguments miss the mark. Congress 

has spoken clearly in the Technicians Act and has expressly granted 

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35

technicians the rights and benefits enjoyed by federal civilian 

employees generally. That includes the collective bargaining rights that 

federal civilian employees enjoy by virtue of the Statute. MANG, 878 

F.3d at 174; Lipscomb, 333 F.3d at 613 (technicians are “clearly federal 

employees by virtue of the” Technicians Act and, as such, “are included 

under the terms of the [Statute] as federal employees of an Executive 

agency.”). As such, the employers of technicians—state National Guard 

units—“are federal executive agencies for the purpose of the [Statute], 

and consequently are subject to the jurisdiction of the FLRA.” 

Lipscomb, 333 F.3d at 613.

Nor is the Agency’s reliance on Singleton and similar cases sound. 

(Br. 28-29.) Following the Federal Circuit’s decisions in those cases, 

Congress amended the Technicians Act to clarify that technicians in 

fact have MSPB appeal rights. See National Defense Authorization Act 

for Fiscal Year 2017, Pub. L. No. 114-328 (2016); S. Rep. No. 114-255, at 

139 (2016); H.R. Conf. Rep 114-840, at 1016-17 (2016)).

Further, to the extent that the Agency argues that Congress must 

call the state National Guards into federal service before technicians 

are subject to the Authority’s jurisdiction, the Agency misunderstands 

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36

the distinct civilian and military roles technicians fill. To be sure, the 

Authority cannot exercise jurisdiction over the purely military aspects 

of technicians’ employment. See 32 U.S.C. § 709(f); Nat’l Fed’n of Fed. 

Emps., Loc. 1623 v. FLRA, 852 F.2d 1349, 1352 (D.C. Cir. 1988) 

(“NFFE”). But the Authority in this case is not attempting to regulate 

any military aspect of technicians’ employment, see MANG, 878 F.3d at 

178-79, and thus these constitutional provisions are wholly 

inapplicable.

B. The Agency’s statutory context argument is meritless

Technicians were widely unionized under the Executive Orders 

allowing for collective bargaining in the federal service that preceded 

the Statute. See H.R. Rep. No. 95-984, pt. 3, at 5 (1978) (noting that, by 

1978, over 68,000 technicians had unionized under EO 11941). At the 

time Congress passed the Statute there were thirty-nine bargaining 

units at state National Guards. Id. Congress, in passing the Statute, 

made no effort to alter the meaning of “agency” in § 7103 to exclude 

state National Guard units—even as it specifically exempted several 

agencies from its coverage. See 5 U.S.C. § 7103(a)(3). 

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37

Section 7135(b) of the Statute states that “[p]olicies, regulations, 

and procedures established under and decisions issued under Executive 

Order[] 11491 . . . shall remain in full force and effect . . . unless 

superseded by specific provisions of this chapter or by regulations or 

decisions issued pursuant to this chapter.” See 5 U.S.C. § 7135(b). The 

Authority has specifically held Congress intended that the term 

“agency” have the same meaning under the Statute as it did under the 

Executive Orders, except where Congress made specific alterations. 

Kennedy Ctr. for the Performing Arts, 45 FLRA 835, 851 (1992). 

Congress made no alteration that would exempt a state National Guard 

in its capacity as an employer of technicians.

Legislation prohibiting collective bargaining amongst members of 

the military supports the view that technicians have collective 

bargaining rights. The language and legislative history of the statute 

barring military unions demonstrates that Congress recognized the 

special employment circumstances of technicians and sought to 

preserve their collective-bargaining rights. See H.R. Rep. No. 95-894(I), 

reprinted in 1978 U.S. Code Cong. & Admin. News 7575, 7580 (“the 

section [of the Senate bill] which required those [dual-status] 

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38

technicians who are members of a military labor organization to 

terminate their membership within 90 days of enactment w[as] omitted 

from the Committee bill.”); H.R. Rep. No. 95-894 (II), reprinted in 1978 

U.S. Code Cong. & Admin. News 7575, 7586. Indeed, the Agency 

acknowledges that the statute that “criminalizes union activities by a 

‘member of the armed forces’ . . . does not include technicians.” (Br. 46.)

Given this history, it is unsurprising that there are dozens of 

Authority decisions and court opinions confirming that technicians are 

covered by the Statute. The Agency’s attempts to distinguish this case 

from previous ones based on arguments that it never raised before the 

Authority are unavailing.

First, the Agency has not addressed the rationale articulated by 

the Authority and several appellate courts that have noted 1) 

technicians are specifically defined as federal civilian employees by 

statute, 10 U.S.C. § 10216(a); 32 U.S.C. § 709(e); 2) state National 

Guards and Adjutant Generals control the day-to-day working 

conditions of these federal civilian employees, and 3) as a result, these 

entities, insofar as they employ federal civilian employees, are 

“Executive agencies” subject to the Statute. See, e.g., Lipscomb, 333 

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39

F.3d at 613; NFFE, 852 F.2d at 1352 (holding that state National Guard 

units are subject to the Statute, except for specific matters reserved by 

the Technicians Act to the Adjutant General’s control); Am. Fed’n of 

Gov’t Emps., Local 3486, 5 FLRA 209, 211-14 (1981).

Second, the Agency’s argument is totally reliant on cases that 

interpret different statutory provisions that have different wording 

than the Statute. (Br. 27-28.) 

Third, the Authority and the courts have long understood that 

technicians must hold positions in their state National Guard and the 

U.S. military in order to hold their civilian position. See, e.g., NFFE, 

852 F.2d at 1351. But technicians’ civilian and military duties are 

distinct and technicians do not (as the testimony during the ALJ 

hearing showed (PA 120a-122a, 183a-184a)) perform any of these duties 

at the same time. “Military status, in short, does not flatly deprive 

dual-status technicians of their statutory right ‘to form, join, or assist 

any labor organization, freely and without fear of penalty or reprisal.’” 

MANG, 878 F.3d at 178-79 (formatting omitted) (quoting 5 U.S.C. § 

7102).

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40

The Authority’s holding that technicians and the Agency are 

subject to the Statute is consistent with 40 years of precedent, the 

statutory text, and relevant legislative history. The Authority’s 

interpretation is, at a bare minimum, reasonable and entitled to 

Chevron deference. See City of Arlington, Tex., 569 U.S. at 293.

C. The Agency’s “uniformed services” argument is meritless

The Agency’s arguments that technicians are excluded from the 

Statute’s coverage because they are “members of the uniformed 

services” under § 7103(a)(2)(B)(ii) is not supported by case law or the 

text and history of the relevant statutes. (Br. 40-46.) As discussed 

above, when Congress passed legislation prohibiting collective 

bargaining for members of the military it considered, and decided not to 

disturb, unionization of technicians. Further, the Agency’s argument is 

based entirely on cases interpreting different statutes, and the Court 

has already rejected the notion that such cases control the 

interpretation of the Statute. MANG, 87 F.3d at 178-79.

The Agency’s reliance on cases interpreting the windfall 

provisions of the Social Security Act is misplaced. (Br. 43-44.) The 

Agency cites to these cases as support that technicians’ employment is 

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41

“irreducibly military” in character. (Id.) However, the fact that 

technicians must concurrently hold a position in the state National 

Guard where they work, as well as the U.S. military, does not mean 

that their technician employment is “irreducibly military.” Lipscomb, 

333 F.3d at 614. Indeed, the technician position is specifically 

designated as a federal civilian position by the Technicians Act. 10 

U.S.C. § 10216(a); 32 U.S.C. § 709. Far from being “irreducibly 

military,” the technicians’ civilian duties are easily separable from their 

military responsibilities. See MANG, 878 F.3d at 178–79 (rejecting the 

argument that the Statute does not apply to technicians because their 

duties are “irreducibly military”).

Indeed, this Court has already answered this question and found 

that technician roles are not wholly military in the context of Social 

Security law. “Rather, by its plain text, the uniformed-service exception 

[in the Social Security context] is cabined to payments that are based 

exclusively on employment in the capacity or role of a uniformedservices member.” Babcock v. Comm’r of Soc. Sec., 959 F.3d 210, 216 

(6th Cir. 2020). All other circuits that have considered the issue, except 

the Eighth Circuit, agree. See e.g. Martin v. Soc. Sec. Admin., 903 F.3d 

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42

1154 (11th Cir. 2018). Thus, precedent establishes that technicians are 

federal civilian employees who are only members of the uniformed 

services when they are serving in their reserve duties or called to active 

duty in the National Guard or U.S. military.

Next, the Agency argues that because this and other courts have 

found that technicians cannot bring claims under Title VII, technicians 

should also be excluded from the Statute’s coverage. (Br. 44-46.) But 

this Court already rejected this argument in MANG. 878 F.3d at 178-

79. 

Thus, as with the the other arguments discussed above, the 

Agency has not presented any reason for this Court to break with its 

own precedent or the well-reasoned decisions of other courts. 

D. The Authority can order restoration of the erroneously 

canceled dues allotments

The Agency has failed to demonstrate that it cannot legally 

comply with the remedies order by the Authority. While an agency 

cannot commence dues allotments without an employee’s authorization, 

the Agency did not present any evidence that the employees in question 

failed to validly authorize dues deductions. (See, e.g., PA 159a (union 

member testifying he submitted a completed SF 1187 in 2003); PA 205a 

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43

(same); see also 5 C.F.R. § 550.312 (general limitations on allotments).) 

Instead, the testimony indicated that the Agency failed to maintain 

copies of the technicians’ completed SF 1187s and then proceeded to 

cancel several of those employees’ due allotments on its own. (PA 275a282a.) 

Further, the relevant regulations are clear that only an employee 

may change or cancel indefinite allotments such as union dues 

deductions. 5 C.F.R. § 550.312(c). The Agency violated this provision 

when it unilaterally terminated technicians’ dues allotments by signing 

SF 1188s on their behalf. (PA 325a.) That is, it was the Agency’s

actions that violated technicians’ free speech rights under Janus v. 

American Federation of State, County, and Municipal Employees, 138 S. 

Ct. 2448 (2018). Moreover, any employees who do not wish to continue 

paying Union dues can simply submit an SF 1188 at any time after 

their allotments are restored. See 5 C.F.R. § 2429.19. 

The Agency’s argument about the “practicalities” of complying 

with the remedies ordered by the Authority (Br. 38-39) ignores the 

troubling message it would send if the Agency were not required to 

comply with the Authority’s order. Specifically, this would mean that 

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44

an agency could fail to maintain proper personnel records that affect the 

Union’s financial resources (PA 349a-350a), make a bad-faith attempt 

to “correct” the error without consulting with the Union (PA 33a, 207a), 

and then avoid any consequences for these actions by virtue of its own 

negligence in having lost the necessary dues authorization forms in the 

first place.

Finally, the Comptroller General has previously found that 

agencies can reimburse unions from appropriated funds for dues that 

an agency wrongfully failed to withhold from an employee’s paycheck. 

See, e.g., Dep’t of Labor, 60 Comp. Gen. 93, B-199341, 1980 WL 14059 

(1980). And the Agency can continue to process SF 1188s if technicians 

actually submit them. Thus, the Authority’s remedy is not impractical 

or unlawful for the Agency to implement.

CONCLUSION

For the foregoing reasons, the Authority respectfully requests that 

this Court deny the Petition for Review.

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45

Respectfully submitted,

/s/ Noah Peters

NOAH PETERS

Solicitor

REBECCA J. OSBORNE

Deputy Solicitor

SARAH C. BLACKADAR

Attorney

FEDERAL LABOR RELATIONS 

AUTHORITY

1400 K Street, NW

Washington, DC 20424

April 29, 2021 (202) 218-7908

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46

FED. R. APP. P. RULE 32(a) CERTIFICATION

Pursuant to Fed. R. App. P. 32(a)(7)(B)(i), I hereby certify that this 

brief is double-spaced (except for extended quotations, headings, and 

footnotes) and is proportionally spaced, using Century Schoolbook font, 

14-point type. Based on a word count of my word processing system, 

this brief contains fewer than 13,000 words. It contains 8512 words 

excluding exempt material. 

/s/ Noah Peters

Noah Peters

Solicitor 

Federal Labor Relations Authority

CERTIFICATE OF SERVICE

I hereby certify that on this 29th day of April, 2021, I 

electronically filed the foregoing with the Clerk of the Court for the 

United States Court of Appeals for the Sixth Circuit by using the 

CM/ECF system. I also certify that the foregoing document is being 

served on counsel of record and that service will be accomplished by the 

CM/ECF system. 

/s/ Noah Peters

Noah Peters

Solicitor 

Federal Labor Relations Authority

Case: 20-3908 Document: 22 Filed: 04/29/2021 Page: 57
ADDENDUM

Relevant Statutes and Regulations

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ii

TABLE OF CONTENTS

5 U.S.C. § 104 .............................................................................................1

5 U.S.C. § 105 .............................................................................................1

5 U.S.C. § 7102 ...........................................................................................1

5 U.S.C. § 7103(a).......................................................................................2

5 U.S.C. § 7123(c) .......................................................................................8

5 U.S.C. § 7135(b).......................................................................................9

10 U.S.C. § 10216(a)...................................................................................9

32 U.S.C. § 709(e) .....................................................................................11

32 U.S.C. § 709(f)......................................................................................11

32 U.S.C. § 709(g) .....................................................................................12

5 C.F.R. § 550.312.....................................................................................13

5 C.F.R. § 2423.40(d) ................................................................................14

5 C.F.R. § 2429.5.......................................................................................14

5 C.F.R. § 2429.19.....................................................................................14

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1

5 U.S.C. § 104

Independent establishment

For the purpose of this title, “independent establishment” means--

(1) an establishment in the executive branch (other than the 

United States Postal Service or the Postal Regulatory 

Commission) which is not an Executive department, military 

department, Government corporation, or part thereof, or part of 

an independent establishment; and

(2) the Government Accountability Office.

5 U.S.C. § 105

Executive agency

For the purpose of this title, “Executive agency” means an Executive 

department, a Government corporation, and an independent 

establishment.

5 U.S.C. § 7102

Employees' rights

Each employee shall have the right to form, join, or assist any labor 

organization, or to refrain from any such activity, freely and without 

fear of penalty or reprisal, and each employee shall be protected in the 

exercise of such right. Except as otherwise provided under this chapter, 

such right includes the right--

(1) to act for a labor organization in the capacity of a 

representative and the right, in that capacity, to present the views 

of the labor organization to heads of agencies and other officials of 

the executive branch of the Government, the Congress, or other 

appropriate authorities, and

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2

(2) to engage in collective bargaining with respect to conditions of 

employment through representatives chosen by employees under 

this chapter.

5 U.S.C. § 7103(a)

Definitions; application

(a) For the purpose of this chapter--

(1) “person” means an individual, labor organization, or agency;

(2) “employee” means an individual--

(A) employed in an agency; or

(B) whose employment in an agency has ceased because of

any unfair labor practice under section 7116 of this title and 

who has not obtained any other regular and substantially 

equivalent employment, as determined under regulations 

prescribed by the Federal Labor Relations Authority;

but does not include--

(i) an alien or noncitizen of the United States who 

occupies a position outside the United States;

(ii) a member of the uniformed services;

(iii) a supervisor or a management official;

(iv) an officer or employee in the Foreign Service of the 

United States employed in the Department of State, 

the International Communication Agency, the Agency 

for International Development, the Department of 

Agriculture, or the Department of Commerce; or

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(v) any person who participates in a strike in violation 

of section 7311 of this title;

(3) “agency” means an Executive agency (including a 

nonappropriated fund instrumentality described in section 2105(c) 

of this title and the Veterans' Canteen Service, Department of 

Veterans Affairs), the Library of Congress, the Government 

Publishing Office, and the Smithsonian Institution1 but does not 

include--

(A) the Government Accountability Office;

(B) the Federal Bureau of Investigation;

(C) the Central Intelligence Agency;

(D) the National Security Agency;

(E) the Tennessee Valley Authority;

(F) the Federal Labor Relations Authority;

(G) the Federal Service Impasses Panel; or

(H) the United States Secret Service and the United States 

Secret Service Uniformed Division.

(4) “labor organization” means an organization composed in whole 

or in part of employees, in which employees participate and pay 

dues, and which has as a purpose the dealing with an agency 

concerning grievances and conditions of employment, but does not 

include--

(A) an organization which, by its constitution, bylaws, tacit 

agreement among its members, or otherwise, denies 

membership because of race, color, creed, national origin, 

sex, age, preferential or nonpreferential civil service status, 

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4

political affiliation, marital status, or handicapping 

condition;

(B) an organization which advocates the overthrow of the 

constitutional form of government of the United States;

(C) an organization sponsored by an agency; or

(D) an organization which participates in the conduct of a 

strike against the Government or any agency thereof or 

imposes a duty or obligation to conduct, assist, or participate 

in such a strike;

(5) “dues” means dues, fees, and assessments;

(6) “Authority” means the Federal Labor Relations Authority 

described in section 7104(a) of this title;

(7) “Panel” means the Federal Service Impasses Panel described in 

section 7119(c) of this title;

(8) “collective bargaining agreement” means an agreement entered 

into as a result of collective bargaining pursuant to the provisions 

of this chapter;

(9) “grievance” means any complaint--

(A) by any employee concerning any matter relating to the 

employment of the employee;

(B) by any labor organization concerning any matter relating 

to the employment of any employee; or

(C) by any employee, labor organization, or agency 

concerning--

(i) the effect or interpretation, or a claim of breach, of a 

collective bargaining agreement; or

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5

(ii) any claimed violation, misinterpretation, or 

misapplication of any law, rule, or regulation affecting 

conditions of employment;

(10) “supervisor” means an individual employed by an agency 

having authority in the interest of the agency to hire, direct, 

assign, promote, reward, transfer, furlough, layoff, recall, suspend, 

discipline, or remove employees, to adjust their grievances, or to 

effectively recommend such action, if the exercise of the authority 

is not merely routine or clerical in nature but requires the 

consistent exercise of independent judgment, except that, with 

respect to any unit which includes firefighters or nurses, the term 

“supervisor” includes only those individuals who devote a 

preponderance of their employment time to exercising such 

authority;

(11) “management official” means an individual employed by an 

agency in a position the duties and responsibilities of which 

require or authorize the individual to formulate, determine, or 

influence the policies of the agency;

(12) “collective bargaining” means the performance of the mutual 

obligation of the representative of an agency and the exclusive 

representative of employees in an appropriate unit in the agency 

to meet at reasonable times and to consult and bargain in a goodfaith effort to reach agreement with respect to the conditions of 

employment affecting such employees and to execute, if requested 

by either party, a written document incorporating any collective 

bargaining agreement reached, but the obligation referred to in 

this paragraph does not compel either party to agree to a proposal 

or to make a concession;

(13) “confidential employee” means an employee who acts in a 

confidential capacity with respect to an individual who formulates 

or effectuates management policies in the field of labormanagement relations;

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(14) “conditions of employment” means personnel policies, 

practices, and matters, whether established by rule, regulation, or 

otherwise, affecting working conditions, except that such term 

does not include policies, practices, and matters--

(A) relating to political activities prohibited under 

subchapter III of chapter 73 of this title;

(B) relating to the classification of any position; or

(C) to the extent such matters are specifically provided for by 

Federal statute;

(15) “professional employee” means--

(A) an employee engaged in the performance of work--

(i) requiring knowledge of an advanced type in a field of 

science or learning customarily acquired by a 

prolonged course of specialized intellectual instruction 

and study in an institution of higher learning or a 

hospital (as distinguished from knowledge acquired by 

a general academic education, or from an 

apprenticeship, or from training in the performance of 

routine mental, manual, mechanical, or physical 

activities);

(ii) requiring the consistent exercise of discretion and 

judgment in its performance;

(iii) which is predominantly intellectual and varied in 

character (as distinguished from routine mental, 

manual, mechanical, or physical work); and

(iv) which is of such character that the output produced 

or the result accomplished by such work cannot be 

standardized in relation to a given period of time; or

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7

(B) an employee who has completed the courses of 

specialized intellectual instruction and study described in 

subparagraph (A)(i) of this paragraph and is performing 

related work under appropriate direction or guidance to 

qualify the employee as a professional employee described in 

subparagraph (A) of this paragraph;

(16) “exclusive representative” means any labor organization 

which--

(A) is certified as the exclusive representative of employees 

in an appropriate unit pursuant to section 7111 of this title; 

or

(B) was recognized by an agency immediately before the 

effective date of this chapter as the exclusive representative 

of employees in an appropriate unit--

(i) on the basis of an election, or

(ii) on any basis other than an election,

and continues to be so recognized in accordance with the 

provisions of this chapter;

(17) “firefighter” means any employee engaged in the performance 

of work directly connected with the control and extinguishment of 

fires or the maintenance and use of firefighting apparatus and 

equipment; and

(18) “United States” means the 50 States, the District of 

Columbia, the Commonwealth of Puerto Rico, Guam, the Virgin 

Islands, the Trust Territory of the Pacific Islands, and any 

territory or possession of the United States.

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5 U.S.C. § 7123(c)

Judicial review; enforcement

(c) Upon the filing of a petition under subsection (a) of this section for 

judicial review or under subsection (b) of this section for enforcement, 

the Authority shall file in the court the record in the proceedings, as 

provided in section 2112 of title 28. Upon the filing of the petition, the 

court shall cause notice thereof to be served to the parties involved, and 

thereupon shall have jurisdiction of the proceeding and of the question 

determined therein and may grant any temporary relief (including a 

temporary restraining order) it considers just and proper, and may 

make and enter a decree affirming and enforcing, modifying and 

enforcing as so modified, or setting aside in whole or in part the order of 

the Authority. The filing of a petition under subsection (a) or (b) of this 

section shall not operate as a stay of the Authority's order unless the 

court specifically orders the stay. Review of the Authority's order shall 

be on the record in accordance with section 706 of this title. No objection 

that has not been urged before the Authority, or its designee, shall be 

considered by the court, unless the failure or neglect to urge the 

objection is excused because of extraordinary circumstances. The 

findings of the Authority with respect to questions of fact, if supported 

by substantial evidence on the record considered as a whole, shall be 

conclusive. If any person applies to the court for leave to adduce 

additional evidence and shows to the satisfaction of the court that the 

additional evidence is material and that there were reasonable grounds 

for the failure to adduce the evidence in the hearing before the 

Authority, or its designee, the court may order the additional evidence 

to be taken before the Authority, or its designee, and to be made a part 

of the record. The Authority may modify its findings as to the facts, or 

make new findings by reason of additional evidence so taken and filed. 

The Authority shall file its modified or new findings, which, with 

respect to questions of fact, if supported by substantial evidence on the 

record considered as a whole, shall be conclusive. The Authority shall 

file its recommendations, if any, for the modification or setting aside of 

its original order. Upon the filing of the record with the court, the 

jurisdiction of the court shall be exclusive and its judgment and decree 

shall be final, except that the judgment and decree shall be subject to 

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9

review by the Supreme Court of the United States upon writ of 

certiorari or certification as provided in section 1254 of title 28.

5 U.S.C. § 7135(b)

Continuation of existing laws, recognitions, agreements, and 

procedures

(b) Policies, regulations, and procedures established under and 

decisions issued under Executive Orders 11491, 11616, 11636, 11787, 

and 11838, or under any other Executive order, as in effect on the 

effective date of this chapter, shall remain in full force and effect until 

revised or revoked by the President, or unless superseded by specific 

provisions of this chapter or by regulations or decisions issued pursuant 

to this chapter.

10 U.S.C. § 10216(a)

(a) In general.--(1) For purposes of this section and any other provision 

of law, a military technician (dual status) is a Federal civilian employee 

who--

(A) is employed under section 3101 of title 5 or section 709(b) 

of title 32;

(B) is required as a condition of that employment to 

maintain membership in the Selected Reserve; and

(C) is assigned to a civilian position as a technician in the 

organizing, administering, instructing, or training of the 

Selected Reserve or in the maintenance and repair of 

supplies or equipment issued to the Selected Reserve or the 

armed forces.

(2) Military technicians (dual status) shall be authorized and 

accounted for as a separate category of civilian employees.

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(3) A military technician (dual status) who is employed under 

section 3101 of title 5 may perform the following additional duties 

to the extent that the performance of those duties does not 

interfere with the performance of the primary duties described in 

paragraph (1):

(A) Supporting operations or missions assigned in whole or 

in part to the technician's unit.

(B) Supporting operations or missions performed or to be 

performed by--

(i) a unit composed of elements from more than one 

component of the technician's armed force; or

(ii) a joint forces unit that includes--

(I) one or more units of the technician's 

component; or

(II) a member of the technician's component 

whose reserve component assignment is in a 

position in an element of the joint forces unit.

(C) Instructing or training in the United States or the 

Commonwealth of Puerto Rico or possessions of the United 

States of--

(i) active-duty members of the armed forces;

(ii) members of foreign military forces (under the same 

authorities and restrictions applicable to active-duty 

members providing such instruction or training);

(iii) Department of Defense contractor personnel; or

(iv) Department of Defense civilian employees.

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32 U.S.C. § 709(e)

Technicians: employment, use, status

(e) A technician employed under subsection (a) is an employee of the 

Department of the Army or the Department of the Air Force, as the case 

may be, and an employee of the United States. However, a position 

authorized by this section is outside the competitive service if the 

technician employed in that position is required under subsection (b) to 

be a member of the National Guard.

32 U.S.C. § 709(f)

Technicians: employment, use, status

(f) Notwithstanding any other provision of law and under regulations 

prescribed by the Secretary concerned--

(1) a person employed under subsection (a) who is a military 

technician (dual status) and otherwise subject to the requirements 

of subsection (b) who--

(A) is separated from the National Guard or ceases to hold 

the military grade specified by the Secretary concerned for 

that position shall be promptly separated from military 

technician (dual status) employment by the adjutant general 

of the jurisdiction concerned; and

(B) fails to meet the military security standards established 

by the Secretary concerned for a member of a reserve 

component under his jurisdiction may be separated from 

employment as a military technician (dual status) and 

concurrently discharged from the National Guard by the 

adjutant general of the jurisdiction concerned;

(2) a technician may, at any time, be separated from 

his technician employment for cause by the adjutant 

general of the jurisdiction concerned;

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(3) a reduction in force, removal, or an adverse action 

involving discharge from technician employment, 

suspension, furlough without pay, or reduction in rank 

or compensation shall be accomplished by the adjutant 

general of the jurisdiction concerned;

(4) a right of appeal which may exist with respect to 

paragraph (1), (2), or (3) shall not extend beyond the 

adjutant general of the jurisdiction concerned when the 

appeal concerns activity occurring while the member is 

in a military pay status, or concerns fitness for duty in 

the reserve components;

(5) with respect to an appeal concerning any activity 

not covered by paragraph (4), the provisions of sections 

7511, 7512, and 7513 of title 5, and section 717 of the 

Civil Rights Act of 1991 (42 U.S.C. 2000e-16) shall 

apply; and

(6) a technician shall be notified in writing of the 

termination of his employment as a technician and, 

unless the technician is serving under a temporary 

appointment, is serving in a trial or probationary 

period, or has voluntarily ceased to be a member of the 

National Guard when such membership is a condition 

of employment, such notification shall be given at least 

30 days before the termination date of such 

employment.

32 U.S.C. § 709(g)

Technicians: employment, use, status

(g)(1) Except as provided in subsection (f), sections 2108, 3502, 7511, 

and 7512 of title 5 do not apply to a person employed under this section.

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(2) In addition to the sections referred to in paragraph (1), section 

6323(a)(1) of title 5 also does not apply to a person employed 

under this section who is performing active Guard and Reserve 

duty (as that term is defined in section 101(d)(6) of title 10).

5 C.F.R. § 550.312

General limitations.

(a) The allotter must specifically designate the allottee and the amount 

of the allotment.

(b) The total amount of allotments may not exceed the pay due the 

allotter for a particular period.

(c) The allotter must personally authorize a change or cancellation of an 

allotment.

(d) The agency has no liability in connection with any authorized 

allotment disbursed by the agency in accordance with the allotter's 

request.

(e) Any disputes regarding any authorized allotment are a matter 

between the allotter and the allottee.

(f) Notwithstanding the requirements in paragraphs (a) and (c) of this 

section, an agency may make an allotment for an employee's share of 

Federal Employees Health Benefits premiums under § 550.311(a)(7) 

and part 892 of this chapter without specific authorization from the 

employee, unless the employee specifically waives such allotment. 

Agency procedures for processing employee waivers must be consistent

with procedures established by the Office of Personnel Management. 

(See part 892 of this chapter.)

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5 C.F.R. § 2423.40(d)

Exceptions; oppositions and cross-exceptions; oppositions to 

cross-exceptions; waiver.

(d) Waiver. Any exception not specifically argued shall be deemed to 

have been waived.

5 C.F.R. § 2429.5

Matters not previously presented; official notice.

The Authority will not consider any evidence, factual assertions, 

arguments (including affirmative defenses), requested remedies, or 

challenges to an awarded remedy that could have been, but were not, 

presented in the proceedings before the Regional Director, Hearing 

Officer, Administrative Law Judge, or arbitrator. The Authority may, 

however, take official notice of such matters as would be proper.

5 C.F.R. § 2429.19

Revocation of assignments.

Consistent with the exceptions in 5 U.S.C. 7115(b), after the expiration 

of the one-year period during which an assignment may not be revoked 

under 5 U.S.C. 7115(a), an employee may initiate the revocation of a 

previously authorized assignment at any time that the employee 

chooses. After the expiration of the one-year period of irrevocability 

under 5 U.S.C. 7115(a), upon receiving an employee's request to revoke 

a previously authorized dues assignment, an agency must process the 

revocation request as soon as administratively feasible.

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