PRELIMINARY PRINT 

Volume 598 U. S. Part 2 

Pages 449–470 

OFFICIAL REPORTS 

OF 

THE SUPREME COURT 

May 18, 2023 

REBECCA A. WOMELDORF 

reporter of decisions 

Page Proof Pending Publication

NOTICE: This preliminary print is subject to formal revision before 

the bound volume is published. Users are requested to notify the Reporter 

of Decisions, Supreme Court of the United States, Washington, D.C. 20543, 

pio@supremecourt.gov, of any typographical or other formal errors. 
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OCTOBER TERM, 2022 449 

Syllabus 

OHIO ADJUTANT GENERAL’S DEPARTMENT et al. v. 

FEDERAL LABOR RELATIONS AUTHORITY et al. 

certiorari to the united states court of appeals for 

the sixth circuit 

No. 21–1454. Argued January 9, 2023—Decided May 18, 2023 

The Federal Service Labor-Management Relations Statute (FSLMRS) 

provides for collective bargaining between federal agencies and their 

employees' unions; bars each from committing unfair labor practices; 

and establishes the Federal Labor Relations Authority (FLRA) to investigate and adjudicate labor disputes. See 5 U. S. C. § 7101 et seq. 

At issue here, the American Federation of Government Employees, 

Local 3970, AFL–CIO is the exclusive representative of certain federal 

civil-service employees known as dual-status technicians who work 

for the Ohio National Guard. After their prior collective-bargaining 

agreement (CBA) expired, petitioners here—the Ohio National Guard, 

the Ohio Adjutant General, and the Ohio Adjutant General's Department (collectively the Guard)—asserted that the Guard was not bound 

by the FSLMRS when interacting with the Guard's dual-status technicians. The Union subsequently fled an unfair labor practice complaint 

with the FLRA to resolve the dispute. Pointing to the fact that the 

FLRA only has jurisdiction over labor organizations and federal agencies, petitioners argued that the Guard was not an “agency” and that 

dual-status technician bargaining-unit employees were not “employees” 

for purposes of the FSLMRS. The Administrative Law Judge issued 

a recommended decision fnding that: the FLRA had jurisdiction over 

the Guard; the dual-status technicians had collective-bargaining rights 

under the FSLMRS; and the Guard's actions in repudiating the CBA 

violated the FSLMRS. A divided panel of the FLRA adopted the 

ALJ's fndings, conclusions, and remedial order. Petitioners sought review in the Sixth Circuit, which denied relief. 

Held: The FLRA had jurisdiction over this labor dispute because a State 

National Guard acts as a federal agency for purposes of the FSLMRS 

when it hires and supervises dual-status technicians serving in their 

civilian role. 

The question whether petitioners are an “agency” for purposes of the 

FSLMRS when they act as supervisors of dual-status technicians is 

bounded by a series of defned statutory terms. 5 U. S. C. § 7116(a)(1). 

The FSLMRS defnes “agency” to include the Department of Defense. 

§ 7103(a)(3). And each dual-status “technician . . . is an employee of 
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450 OHIO ADJUTANT GENERAL'S DEPT. v. FLRA 

Syllabus 

the Department of the Army or the Department of the Air Force.” 32 

U. S. C. § 709(e); see also 10 U. S. C. § 10216(a)(1)(A). Those Departments, in turn, are components of the Department of Defense. 

§§ 111(b)(6) and (8). Components of covered agencies plainly fall within 

the reach of the FSLMRS. See 5 U. S. C. §§ 7103(a)(12), 7112(a). Thus, 

when petitioners employ dual-status technicians, they—like components 

of an agency—exercise the authority of the Department of Defense, a 

covered agency. 

The statutory authority permitting the Ohio Adjutant General to employ dual-status technicians as civilian employees in the federal civil 

service reinforces this point. See 5 U. S. C. § 2105(a)(1)(F). Congress 

has required the Secretaries of the Army and Air Force to “designate” 

adjutants general “to employ and administer” technicians. 32 U. S. C. 

§ 709(d). That designation is the sole basis for petitioners' authority 

to employ technicians performing work in their federal civilian roles. 

Here, a 1968 order of the Secretary of the Army “designate[s]” and 

“empower[s]” each adjutant general “to employ and administer the 

Army National Guard technicians authorized for his State . . . as the 

case may be.” General Order No. 85, ¶3. Accordingly, dual-status 

technicians are ultimately employees of the Secretaries of the Army and 

the Air Force, and petitioners are the Secretaries' designees for purposes of dual-status technician employment. Should a state adjutant 

general wish to employ federal dual-status technicians, the adjutant 

general must do so pursuant to delegated federal authority and subject 

to federal civil-service requirements. See 5 U. S. C. § 2105(a)(1)(F). 

The evolution of federal agency-employee relations law and the text 

of § 7135(b) lend further support to the FLRA's exercise of authority 

over the Guard. Section 7135(b) explicitly continues prior practice 

under the provisions of Executive Order No. 11491—the precursor to 

the FSLMRS—except where specifcally revoked by the President or 

altered by the FSLMRS or corresponding regulations. The 1971 decision in Thompson Field is on point. See Mississippi National Guard, 

172d Military Airlift Group (Thompson Field), Asst. Sec. Labor/Management Relations (A/SLMR) No. 20. There, the Assistant Secretary of 

Labor—exercising adjudicative authority under Executive Order No. 

11491 analogous to the FLRA's—held that Mississippi's National Guard 

technicians were employees of the Federal Government under Executive 

Order No. 11491. The Assistant Secretary concluded that the State's 

adjutant general had “been designated as an agent of the Secretaries of 

the Army and the Air Force” in employing and administering dualstatus technicians and that this agency relationship created the obligation to comply with Executive Order No. 11491. Id., at 7. The defnitions of “employee” and “agency” that Thompson Field examined were 
Cite as: 598 U. S. 449 (2023) 451 

Syllabus 

materially identical to those that Congress ultimately adopted in the 

FSLMRS. The Court thus ordinarily presumes that the FSLMRS 

maintained the same coverage that existed under the prior regime, see, 

e. g., George v. McDonough, 596 U. S. –––, –––, and the Court identifes 

nothing to weaken that presumption here. Pp. 456–461. 

21 F. 4th 401, affrmed. 

Thomas, J., delivered the opinion of the Court, in which Roberts, C. J., 

and Sotomayor, Kagan, Kavanaugh, Barrett, and Jackson, JJ., joined. 

Alito, J., fled a dissenting opinion, in which Gorsuch, J., joined, post, 

p. 461. 

Benjamin M. Flowers, Solicitor General of Ohio, argued 

the cause for petitioners. With him on the briefs were Dave 

Yost, Attorney General, and Michael J. Hendershot, Chief 

Deputy Solicitor General. 

Nicole Frazer Reaves argued the cause for the federal respondent. With her on the brief were Solicitor General 

Prelogar, Deputy Solicitor General Fletcher, and Rebecca J. 

Osborne. Andres M. Grajales argued the cause for respondent American Federation of Government Employees, 

Local 3970, AFL–CIO. With him on the brief were Matthew Milledge and David A. Borer.* 

*Briefs of amici curiae urging reversal were fled for the State of Mississippi et al. by Lynn Fitch, Attorney General of Mississippi, Scott G. 

Stewart, Solicitor General, and Justin L. Matheny and Anthony M. Shults, 

Deputy Solicitors General, and by the Attorneys General for their respective States as follows: Steve Marshall of Alabama, Treg Taylor of Alaska, 

Leslie Rutledge of Arkansas, Jeff Landry of Louisiana, Austin Knudsen 

of Montana, John M. O'Connor of Oklahoma, Mark Vargo of South Dakota, 

Ken Paxton of Texas, Sean D. Reyes of Utah, and Patrick Morrisey of 

West Virginia; for the State of South Carolina by Alan Wilson, Attorney 

General, Robert D. Cook, Solicitor General, and James Emory Smith, Jr., 

Deputy Solicitor General; for the America First Policy Institute by Craig 

W. Trainor and Pamela Jo Bondi; and for Americans for Fair Treatment 

by David R. Dorey. 

Briefs of amici curiae urging affrmance were fled for the American 

Federation of Labor and Congress of Industrial Organizations et al. by 

Harold C. Becker, Andrew Lyubarsky, Bruce Lerner, Ramya Ravindran, 

and Theodore T. Green; and for Military Law Scholars by Charles A. RothPage Proof Pending Publication
452 OHIO ADJUTANT GENERAL'S DEPT. v. FLRA 

Opinion of the Court 

Justice Thomas delivered the opinion of the Court. 

This case requires us to determine whether the Federal 

Labor Relations Authority (FLRA) properly exercised jurisdiction over an unfair labor practices dispute. On one side 

were the Ohio National Guard, the Ohio Adjutant General, 

and the Ohio Adjutant General's Department (collectively 

petitioners or the Guard). On the other was the American 

Federation of Government Employees, Local 3970, AFL– 

CIO (Union), which represents federal employees known as 

dual-status technicians who work in both civilian and military roles for the Guard. 

The Union petitioned the FLRA to resolve the dispute. 

But, under the Federal Service Labor-Management Relations Statute (FSLMRS or Statute), the FLRA only has jurisdiction over labor organizations and federal “agencies”— 

and petitioners insist that they are neither. 5 U. S. C. § 7101 

et seq. We hold, however, that petitioners act as a federal 

“agency” when they hire and supervise dual-status technicians serving in their civilian role. 

I 

A 

Enacted in 1978, the FSLMRS establishes a comprehensive framework governing labor-management relations in 

federal agencies. It secures the right of “[e]ach employee” 

“to form, join, or assist any labor organization, or to refrain 

from any such activity, freely and without fear of penalty 

or reprisal.” § 7102. And, it further guarantees that “each 

employee shall be protected in the exercise of such right.” 

Ibid. To that end, the FSLMRS provides for collective 

bargaining between federal agencies and their employees' 

unions, and it bars each from committing unfair labor pracfeld, Andrew J. Pincus, Paul W. Hughes, Michael B. Kimberly, and 

Eugene R. Fidell, pro se. 

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Cite as: 598 U. S. 449 (2023) 453 

Opinion of the Court 

tices. See §§ 7102(2) and 7116(a)–(b). For example, an 

agency may not “interfere with, restrain, or coerce any employee in the exercise by the employee of any right under” 

the Statute; “refuse to consult or negotiate in good faith with 

a labor organization as required by” the Statute; or “otherwise fail or refuse to comply with any provision of” the 

Statute. §§ 7116(a)(1), (5), (8). 

The Statute creates the FLRA and tasks it with administering this framework, including by investigating and adjudicating labor disputes. § 7105(a)(2)(G); see also §§ 7104 and 

7118(a)(1). It provides that the FLRA's general counsel 

“shall investigate” a charge against “any agency or labor organization” and, if warranted, may issue a complaint calling for a hearing before the FLRA. §§ 7118(a)(1)–(2). The 

FLRA is then responsible for “conduct[ing] hearings and resolv[ing such] complaints.” § 7105(a)(2)(G). If the FLRA 

determines that an agency or a union has engaged in an 

unfair labor practice, it “may require” the entity “to cease 

and desist from violations of [the Statute] and require it 

to take any remedial action it considers appropriate.” 

§ 7105(g)(3). 

This case concerns the Statute's application to a unique 

category of federal civil-service employees: dual-status technicians working for the State National Guards. These “rare 

bird[s]” occupy both civilian and military roles. Babcock v. 

Kijakazi, 595 U. S. –––, ––– (2022). They serve as “civilian employee[s]” engaged in “organizing, administering, 

instructing,” “training,” or “maintenance and repair of supplies” to assist the National Guard. 10 U. S. C. § 10216(a) 

(1)(C); see 32 U. S. C. §§ 709(a)(1)–(2); Babcock, 595 U. S., 

at –––. Yet, they must “as a condition of that employment 

. . . maintain membership in the [National Guard]” and wear 

a uniform while working. 10 U. S. C. § 10216(a)(1)(B); see 32 

U. S. C. §§ 709(b)(2)–(4). Except when participating as National Guard members in part-time drills, training, or activeduty deployment, see 32 U. S. C. §§ 502(a) and 709(g)(2), dual-
454 OHIO ADJUTANT GENERAL'S DEPT. v. FLRA 

Opinion of the Court 

status technicians work full time in a civilian capacity and 

receive federal civil-service pay. See Babcock, 595 U. S., 

at ––– – –––; see also 5 U. S. C. § 2101(a). 

Importantly, under the Technicians Act of 1968, each dualstatus technician is considered “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). While it is state adjutants general who 

“employ and administer” dual-status technicians working for 

their respective State National Guard units, they can only 

do so pursuant to an express “designat[ion]” of authority by 

the Secretary of the Army or the Secretary of the Air Force. 

§ 709(d); see also Dept. of the Army, S. Resor, Delegation of 

Authority Under the National Guard Technicians Act of 1968 

(General Order No. 85, Dec. 31, 1968) (General Order No. 85) 

(current order designating the relevant authority). 

B 

The parties' collective-bargaining relationship dates back 

to 1971, when the Guard recognized the Union as the exclusive representative of its dual-status technicians. They 

have since negotiated a number of collective-bargaining 

agreements (CBAs), the most recent of which was signed in 

2011 and expired in 2014. As the expiration date neared, 

the Guard and the Union entered into negotiations for a 

new agreement. During this process, in March 2016, they 

adopted a memorandum of understanding whereby the Ohio 

Adjutant General promised to abide by certain practices contained in the expired agreement. But, later that year, the 

Ohio Adjutant General's Department reversed course. It 

asserted that it was not bound by the expired CBA and did 

not consider itself bound by the FSLMRS when interacting 

with dual-status technicians. The Guard also sent letters to 

dual-status technician Union members, asking them to submit the requisite forms to permit the deduction of Union 

dues from their pay. The letters advised that, if the techniPage Proof Pending Publication
Cite as: 598 U. S. 449 (2023) 455 

Opinion of the Court 

cians did not promptly submit the forms, the Guard would 

cancel dues deductions on their behalf. The Guard ultimately terminated dues withholding for 89 technicians. 

The Union subsequently fled unfair labor practice charges 

with the FLRA. After investigating, the FLRA general 

counsel issued consolidated complaints against the “U. S. Department of Defense, Ohio National Guard,” alleging that 

the Guard had refused to negotiate in good faith and interfered with the exercise of employee rights under the Statute through its treatment of technicians' dues deductions. 

App. 16. The Ohio Adjutant General and the Ohio Adjutant 

General's Department intervened on the side of the Ohio 

National Guard. 

Petitioners argued before the Administrative Law Judge 

that the Guard was not an “agency” and that dual-status 

technician bargaining-unit employees were not “employees” 

for purposes of the Statute. The Administrative Law Judge 

issued a recommended decision fnding that the FLRA had 

jurisdiction over the Guard, that the dual-status technicians 

had collective-bargaining rights under the Statute, and that 

the Guard's actions in repudiating the CBA violated the Statute. It thus ordered petitioners to follow the mandatory 

terms of the 2011 CBA, bargain in good faith going forward, 

and reinstate Union dues withholding. A divided panel of 

the FLRA adopted the Administrative Law Judge's fndings, 

conclusions, and remedial order. 

The Guard petitioned for review in the U. S. Court of Appeals for the Sixth Circuit, which denied the petition. 21 

F. 4th 401 (2021). The Sixth Circuit held that the Guard is 

an agency subject to the Statute when it operates in its capacity as employer of dual-status technicians. The court 

further found that dual-status technicians are federal civilian 

employees with collective-bargaining rights under the Statute. Thus, because the FLRA has authority to enforce 

those collective-bargaining rights, the court concluded that 

this dispute fell within its jurisdiction. 

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Opinion of the Court 

We granted certiorari to consider whether the FLRA had 

jurisdiction over this labor dispute under the Statute. 598 

U. S. ––– (2022).1 

II 

Under the FSLMRS, it is “an unfair labor practice for an 

agency” “to interfere with, restrain, or coerce any employee 

in the exercise by the employee of any right under” the Statute. 5 U. S. C. § 7116(a)(1). The FLRA's jurisdiction over 

this unfair labor practices dispute thus turns on whether 

petitioners are an “agency” for purposes of the Statute when 

they act in their capacities as supervisors of dual-status technicians, a question bounded by a series of defned terms. 

The Statute defnes an “agency” as “an Executive agency,” 

with exceptions not relevant here. § 7103(a)(3). Then, the 

term “ `Executive agency,' ” as used in Title 5, “means an 

Executive department, a Government corporation, and an independent establishment.” § 105. And each of those terms 

is separately defned: an “Executive departmen[t]” means 

each of 15 Cabinet-level Departments, including “[t]he Department of Defense,” § 101; a “ `Government corporation' 

means a corporation owned or controlled by the Government 

of the United States,” § 103; and an “ `independent establishment' means” “an establishment in the executive branch,” 

with exceptions not relevant here, “which is not an Executive department, military department, Government corporation, or part thereof, or part of an independent establishment,” § 104(1). It is undisputed that the Guard is neither 

a “Government corporation” nor an “independent establishment,” leaving only “Executive department” at issue. 

1 We did not grant certiorari to consider petitioners' additional question 

presented, which disputed the constitutionality of the FLRA's authority 

to regulate the labor practices of state militia members who are not employed in the service of the United States. Consequently, we address 

only the statutory question presented, and our holding is limited to the 

unique class of federal employees hired and supervised by state adjutants general. 

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Cite as: 598 U. S. 449 (2023) 457 

Opinion of the Court 

Petitioners work backwards through the links in the statutory chain. They argue that they are not an Executive department because they are not listed among the 15 Cabinetlevel Departments specifed in § 101. Thus, they claim, they 

are not an “Executive agency” under § 105 and, accordingly, 

do not qualify as an “agency” under the Statute. Respondents counter that the components, representatives, and 

agents of an agency may be required to comply with the 

Statute. And they emphasize that petitioners exercise federal authority in employing dual-status technicians and must 

therefore comply with applicable federal law. Respondents 

have the better of the argument. 

A 

The Guard, when employing dual-status technicians, functions as an agency covered by the Statute. The Statute 

defnes “ `agency' ” to include the Department of Defense, 

one of the enumerated executive Departments in § 101. 

§ 7103(a)(3); see §§ 101 and 105. And, each dual-status 

“technician . . . is an employee of the Department of the 

Army or the Department of the Air Force.” 32 U. S. C. 

§ 709(e); see also 10 U. S. C. § 10216(a)(1)(A). Those Departments, in turn, are components of the Department of Defense. 10 U. S. C. §§ 111(b)(6) and (8). And, components of 

covered agencies plainly fall within the Statute's reach. 5 

U. S. C. §§ 7103(a)(12) (contemplating collective bargaining 

between “the representative of an agency” and “the exclusive representative of employees in an appropriate unit in 

the agency”) and 7112(a) (contemplating the establishment of 

“appropriate” bargaining units “on an agency, plant, installation, functional, or other basis”). Accordingly, when petitioners employ and supervise dual-status technicians, they— 

like components of an agency—exercise the authority of the 

Department of Defense, a covered agency. 

The statutory authority permitting the Adjutant General 

to employ dual-status technicians reinforces this point. AdPage Proof Pending Publication
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458 OHIO ADJUTANT GENERAL'S DEPT. v. FLRA 

Opinion of the Court 

jutants general appoint dual-status technicians as civilian 

employees in the federal civil service. See 5 U. S. C. 

§ 2105(a)(1)(F) (providing that the term “ `employee,' ” for 

purposes of Title 5, ordinarily includes “an individual . . . 

appointed in the [federal] civil service by . . . an adjutant 

general designated by the Secretary [of the Army or of the 

Air Force] under section 709[(d)] of title 32”). And, Congress has required the Secretaries of the Army and Air 

Force to “designate” adjutants general “to employ and administer” technicians. 32 U. S. C. § 709(d). That designation is the sole basis for petitioners' authority to employ 

technicians performing work in their federal civilian roles, 

confrming that petitioners act on behalf of—and exercise the 

authority of—a covered federal agency when they supervise 

dual-status technicians. 

Here, for example, a 1968 order of the Secretary of the 

Army “designate[s]” and “empower[s]” each adjutant general 

“to employ and administer the Army National Guard technicians authorized for his State . . . as the case may be.” General Order No. 85, ¶3. Accordingly, dual-status technicians 

are ultimately employees of the Secretaries of the Army and 

the Air Force, and petitioners are the Secretaries' designees 

for purposes of dual-status technician employment. Should 

a state adjutant general wish to employ federal dual-status 

technicians, he must do so pursuant to delegated federal 

authority and subject to federal civil-service requirements. 

See 5 U. S. C. § 2105(a)(1)(F). Indeed, it would be passing 

strange if dual-status technicians, who qualify as employees 

under the Statute, were supervised by an entity not required 

to safeguard the rights guaranteed employees under the 

Statute. §§ 7102 (providing that “each employee shall be 

protected in the exercise of” his right to join or refrain from 

joining a labor association) and 7103(a)(2)(A) (defning an 

“ `employee' ” as “an individual . . . employed in an agency”). 

The case caption in this matter refects the Guard's federal 

function with respect to hiring dual-status technicians; be-
Cite as: 598 U. S. 449 (2023) 459 

Opinion of the Court 

fore the FLRA, the case proceeded against the “U. S. Department of Defense, Ohio National Guard,” with the Adjutant General and the Adjutant General's Department joining 

the suit later as intervenors. App. 16. 

Petitioners contend that federalism concerns require us to 

read the Statute to exempt them from the FLRA's jurisdiction. But, the FLRA enforces the rights and obligations of 

federal civilian employees and their agency employers. Because adjutants general act on behalf of an agency of the 

Federal Government with respect to their supervision of civilian technicians, their actions in that capacity do not implicate the balance between federal and state powers. See 10 

U. S. C. § 10216(a); 32 U. S. C. § 709(e). 

B 

The evolution of federal agency-employee relations law 

and the text of 5 U. S. C. § 7135(b), which functions as the 

Statute's saving clause, lend further support to the FLRA's 

exercise of authority over the Guard. Before the FSLMRS 

was adopted, “labor-management relations in the federal sector were governed by a program established” by a series of 

Executive Orders “under which federal employees had limited rights to engage in” collective bargaining. Bureau of 

Alcohol, Tobacco and Firearms v. FLRA, 464 U. S. 89, 91– 

92 (1983). The Statute's immediate predecessor, Executive 

Order No. 11491, established the precursor to the current 

FLRA and listed prohibited unfair labor practices for both 

federal agency management and unions. See Exec. Order 

No. 11491, 3 CFR 861 (1966–1970 Comp.). When Congress 

later replaced that Executive Order with the FSLMRS, it 

explicitly continued many aspects of the pre-FSLMRS regime: “Policies, regulations, and procedures established 

under and decisions issued under Executive Orde[r] 11491 . . . 

shall remain in full force and effect until revised or revoked 

by the President, or unless superseded by specifc provisions 

of [the Statute] or by regulations or decisions issued pursuPage Proof Pending Publication
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460 OHIO ADJUTANT GENERAL'S DEPT. v. FLRA 

Opinion of the Court 

ant to [the Statute].” 5 U. S. C. § 7135(b). Thus, “decisions 

issued under Executive Orde[r] 11491” supply critical guidance regarding the FLRA's jurisdiction today. 

One such decision is directly on point. In the 1971 case 

of Mississippi National Guard, 172d Military Airlift Group 

(Thompson Field), Asst. Sec. Labor/Management Relations 

(A/SLMR) No. 20 (Thompson Field), the Assistant Secretary of Labor—exercising adjudicative authority under Executive Order No. 11491 analogous to the modern FLRA's— 

rejected arguments virtually identical to those petitioners 

advance here. See id., at 2 (describing the state guard's argument “that the provisions of Executive Order 11491 did 

not apply . . . because the employees involved are under 

the operational control of the Adjutant General of the State 

of Mississippi, who is appointed and employed pursuant to 

State law”). The Assistant Secretary reasoned “that National Guard technicians [were] employees within the meaning of” the Executive Order and “employees of the Federal 

government” under the Technicians Act. Id., at 6. The Assistant Secretary then concluded that the adjutant general 

had “been designated as an agent of the Secretaries of the 

Army and the Air Force” in employing and administering 

dual-status technicians and that this agency relationship 

created the obligation to comply with Executive Order 

No. 11491. Id., at 7. 

The defnitions of “employee” and “agency” that Thompson Field examined under Executive Order No. 11491 were 

materially identical to those that Congress ultimately 

adopted in the FSLMRS. Compare 5 U. S. C. §§ 7103(a)(2)– 

(3) (defning “ `employee' ” as “an individual . . . employed in 

an agency,” and defining “ `agency' ” as “an Executive 

agency,” which § 105 in turn defnes as an executive department, a Government corporation, and an independent establishment) with Exec. Order No. 11491, §§ 2(a)–(b) (defning 

“ `[e]mployee' ” primarily as “an employee of an agency,” and 

defning “ `[a]gency' ” as “an executive department, a Govern-
Cite as: 598 U. S. 449 (2023) 461 

Alito, J., dissenting 

ment corporation, and an independent establishment”). We 

would, therefore, ordinarily presume that the FSLMRS 

maintained the same coverage that existed under the prior 

regime. See, e. g., George v. McDonough, 596 U. S. –––, ––– 

(2022); Taggart v. Lorenzen, 587 U. S. –––, ––– – ––– (2019). 

We see nothing to weaken the force of that presumption 

here. On the contrary, § 7135(b) specifcally demonstrates 

Congress' intent to leave the prior regime in place except 

where it was specifcally altered. And, because the President has not revoked it and neither the FSLMRS nor associated regulations have repudiated it, the decision in Thompson Field “remain[s] in full force and effect.” § 7135(b). 

* * * 

We conclude that petitioners are subject to the authority 

of the FLRA when acting in their capacities as supervisors 

of dual-status technicians. Each dual-status technician is an 

employee of the Department of the Army or the Department 

of the Air Force; those Departments are, in turn, components 

of the Department of Defense; and the Department of Defense is a covered agency under the Statute. Further, a 

designation from the Department of the Army is the sole 

basis for petitioners' authority to employ dual-status technicians. Accordingly, petitioners employ federal dual-status 

technicians pursuant to delegated federal authority and subject to federal civil-service requirements. The Statute also 

explicitly incorporates prior practice, including the decision 

in Thompson Field, which further reinforces our conclusion. 

The judgment of the Sixth Circuit is affrmed. 

It is so ordered. 

Justice Alito, with whom Justice Gorsuch joins, 

dissenting. 

Petitioners, the Ohio National Guard, the Ohio Adjutant 

General, and the Ohio Adjutant General's Department, chalPage Proof Pending Publication
462 OHIO ADJUTANT GENERAL'S DEPT. v. FLRA 

Alito, J., dissenting 

lenge the lawfulness of an order of the Federal Labor Relations Authority (FLRA). That order directs petitioners to 

honor their existing agreement with the union that represents the dual-status civilian technicians who are members 

of the Ohio National Guard and to bargain in good faith with 

the union in the future. The Court correctly observes that 

the FLRA's ability to enter such an order against petitioners 

“turns on whether petitioners are an `agency' for purposes of 

the” Federal Service Labor-Management Relations Statute. 

Ante, at 456; see 5 U. S. C. § 7105(g)(3). But the Court stops 

short of answering that question, holding instead that petitioners “act as a federal `agency,' ” ante, at 452, “exercise 

the authority of” a covered agency, ante, at 457, and even 

“functio[n] as an agency,” ibid. Because petitioners are not 

actually federal agencies, a proposition that the Court does 

not dispute, the FLRA lacks jurisdiction to enter remedial 

orders against them. 

I 

These dual-status civilian technicians are indeed strange 

creatures—“rare bird[s,]” as we called them last Term. 

Babcock v. Kijakazi, 595 U. S. –––, ––– (2022); ante, at 453– 

454. For that reason, any decision we make here may have 

odd spillover effects. See, e. g., Nelson v. Geringer, 295 

F. 3d 1082, 1084, 1086 (CA10 2002) (considering a Rev. Stat. 

§ 1979, 42 U. S. C. § 1983 claim, which is available for deprivations of rights under state law, against a state adjutant general); Singleton v. MSPB, 244 F. 3d 1331, 1336–1337 (CA Fed. 

2001) (holding that the Merit Systems Protection Board lacks 

authority over state adjutants general because they are not 

federal employees or agencies); Chaudoin v. Atkinson, 494 

F. 2d 1323, 1329 (CA3 1974) (allowing a mandamus action 

brought by a civilian technician to proceed against a state 

adjutant general based on the court's authority “ `to compel 

an offcer or employee of the United States or any agency 

thereof to perform a duty owed to the plaintiff' ” (quoting 28 

U. S. C. § 1361)). But the consequences of petitioners' thePage Proof Pending Publication
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Alito, J., dissenting 

ory are not nearly as odd as the majority claims, and a plain 

reading of the statutory text leads ineluctably to the conclusion that petitioners are not “agenc[ies]” within the meaning 

of the Federal Service Labor-Management Relations Statute 

(FSLMRS or Statute). 5 U. S. C. § 7105(g)(3). 

A 

“[W]e begin by analyzing the statutory language,” for 

“[w]e must enforce plain and unambiguous statutory language according to its terms.” Hardt v. Reliance Standard 

Life Ins. Co., 560 U. S. 242, 251 (2010). The conclusion that 

petitioners should prevail follows from a straightforward 

reading of the statute's text. 

First, the FSLMRS gives the FLRA remedial jurisdiction 

over an entity if it is “an agency or a labor organization.” 

§ 7105(g)(3). Second, petitioners are obviously not labor organizations, and thus the only question before us is whether 

they are “agenc[ies].” Third, “agency,” a defned term in 

the FSLMRS, means, with certain exceptions not relevant 

here, “an Executive agency.” § 7103(a)(3). Fourth, an “Executive agency” is defned as “an Executive department, 

a Government corporation, [or] an independent establishment.” § 105. Fifth, no petitioner is listed among the executive departments in § 101's exhaustive list. See § 101. 

Likewise, no petitioner is either a “Government corporation” 

(i. e., a “corporation owned or controlled by the Government 

of the United States,” § 103(1)) or an independent establishment (i. e., “an establishment in the executive branch,” 

§ 104(1)). Thus, no petitioner is an “agency” within the 

meaning of the FSLMRS, and that means that the FLRA 

lacks remedial jurisdiction over petitioners under 

§ 7105(g)(3). 

Interpretation of a statute both “ `begins with the statutory 

text, and ends there as well' ” if the text is “ `unambiguous.' ” 

National Assn. of Mfrs. v. Department of Defense, 583 U. S. 

109, 127 (2018). This simple textual analysis shows that 

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Alito, J., dissenting 

the FSLMRS's language unambiguously does not allow the 

FLRA to direct a remedial order to any petitioner. That 

should be the end of the matter. 

B 

Because it is so clear that no petitioner is an “agency,” the 

Court sidesteps the issue. Instead, it rests its decision on 

three main grounds. It notes: (1) the dual status technicians 

are federal employees, (2) petitioners “exercise the authority 

of” a covered agency as components or representatives of 

that agency, ante, at 457, and (3) pre-FSLMRS administrative practice supports the FLRA's exercise of jurisdiction. 

None of these grounds justifes the conclusion that any of the 

petitioners is an “agency” subject to the FLRA's remedial 

authority. 

1 

The Court refers repeatedly to the uncontested proposition that the technicians are federal employees, are subject to federal civil-service requirements, and are employed 

under federal law. Ante, at 454, 457–458, 461. The Court 

posits that “it would be passing strange if dual-status technicians, who qualify as employees under the Statute, were supervised by an entity not required to safeguard the rights 

guaranteed employees under the Statute.” Ante, at 458. 

But the question on which this case turns is not whether the 

technicians are federal employees or whether they have civil 

service or bargaining rights. It is not even whether petitioners are obligated to “safeguard” the technicians' bargaining rights. The question is whether any such obligations 

can be enforced by means of an order from the FLRA. 

In the context of our own remedial authority, we regularly 

acknowledge many potential impediments to granting a judicial remedy, even to a litigant that might be able to prove 

that another party has breached its rights. For instance, 

we might lack subject-matter jurisdiction over a particular 

claim, see, e. g., Steel Co. v. Citizens for Better Environment, 

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Alito, J., dissenting 

523 U. S. 83, 94–95 (1998), or lack personal jurisdiction over 

a particular defendant, see, e. g., Daimler AG v. Bauman, 

571 U. S. 117, 121–122 (2014). The plaintiff may lack a private right of action, see, e. g., Alexander v. Sandoval, 532 

U. S. 275, 293 (2001), or the defendant may have a valid immunity defense, see, e. g., Wilson v. Layne, 526 U. S. 603, 

605–606 (1999). The fact that litigants with meritorious 

claims may not be able to obtain a particular remedy from a 

particular source is not “strange,” but perfectly ordinary. 

It is no more strange to say in this case that, regardless 

of whatever rights and duties the parties may have, the 

particular remedy of an FLRA order is unavailable. “Administrative agencies are creatures of statute,” National 

Federation of Independent Business v. OSHA, 595 U. S. 

–––, ––– (2022) (per curiam), and accordingly “have only 

those powers given to them by Congress,” West Virginia v. 

EPA, 597 U. S. –––, ––– (2022). If Congress wants the 

FLRA to have authority to enter an order against any of 

the petitioners, it must give the FLRA that authority. See 

American Power & Light Co. v. SEC, 329 U. S. 90, 112–113 

(1946) (contemplating that an agency's remedy may be set 

aside where it “is unwarranted in law”).* 

2 

Second, the Court reasons that petitioners, in supervising 

the technicians, “exercise the authority of the Department of 

Defense, a covered agency.” Ante, at 457. The Court approvingly relates respondents' argument that, while petitioners may not be agencies, “the components, representatives, 

*Although an order from the FLRA is not available, several mechanisms 

exist to remedy breaches of petitioners' obligations. As petitioners concede, the National Guard Bureau may exert its authority via control of 

funding and recognition of state guards. See Brief for Petitioners 33–34. 

And the Federal Government could bring a suit against petitioners in an 

Article III court to enforce the technicians' bargaining rights. See, e. g., 

Seminole Tribe of Fla. v. Florida, 517 U. S. 44, 71, n. 14 (1996). 

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466 OHIO ADJUTANT GENERAL'S DEPT. v. FLRA 

Alito, J., dissenting 

and agents of an agency may be required to comply with the 

Statute.” Ante, at 457. The Court does not specify which 

of these three categories it thinks petitioners fall into. It 

says only that petitioners are “like components of an 

agency.” Ibid. (emphasis added). And it fnds that they 

are “like” components of an agency because they supervise 

the technicians pursuant to a “designat[ion]” from the heads 

of the Departments of the Army and the Air Force, which 

are themselves components of the Department of Defense. 

Ante, at 458. Since the Department of Defense is an agency, 

the Court reasons that the same must be true of petitioners. 

The problem with this reasoning is that a “designat[ion]” 

to exercise the authority of an “agency” does not turn the 

designee into an agency. Just because A is designated to 

exercise the authority of B, it does not follow that A is B. 

Here is an example. If an administrative hearing offcer in 

the Department of the Interior is disqualifed from hearing 

a case, that offcer must report that information “to the Secretary of the Interior or such offcer as he may designate.” 

43 U. S. C. § 101 (emphasis added). The designated offcer 

does not become the Secretary by virtue of having been designated to carry out a duty or exercise authority that would 

otherwise rest with the Secretary. 

The same is true here. The designation of petitioners by 

the Departments of the Army and Air Force to perform some 

of those departments' duties and to exercise some of their 

authority does not turn petitioners into agencies or necessarily have any effect beyond assigning them those duties and 

responsibilities. 32 U. S. C. § 709(d). 

The Court's related and highly functionalist argument that 

petitioners must be subject to the FLRA because they “exercise the authority of” an agency in supervising the technicians similarly fails. Ante, at 457. One entity may augment the power of another by delegating to it certain 

authority. See, e. g., Youngstown Sheet & Tube Co. v. Sawyer, 

343 U. S. 579, 635–638 (1952) (Jackson, J., concurring). That 
Cite as: 598 U. S. 449 (2023) 467 

Alito, J., dissenting 

delegation of authority, however, does not turn the latter entity into the former one. That petitioners exercise authority that federal agencies would otherwise hold does not make 

them agencies any more than the President is Congress 

when he exercises authority pursuant to congressional authorization. See ibid. 

To be sure, the offcial who makes the designation cannot 

delegate authority that he or she does not have. If the 

FSLMRS constrains the Departments of the Army and Air 

Force in their relationship with the technicians, it stands to 

reason that those Departments cannot delegate to adjutants 

general the power to supervise the technicians free from 

such constraints. As I have explained, though, this case 

turns not on whether petitioners have obligations to bargain with the technicians, but on whether those obligations 

may be enforced against petitioners as if they are “agenc[ies].” 5 U. S. C. § 7105(g)(3). And on that score, saying 

the Departments' designation transforms petitioners into 

agencies, with all the legal ramifcations of that label, is no 

more sensible than saying the offcer the Secretary of the 

Interior designates to receive disqualifcation notices becomes, like the Secretary of the Interior, a principal offcer 

of the United States subject to Senate confrmation. U. S. 

Const., Art. II, § 2. 

3 

Finally, the Court's reliance on the Statute's “saving 

clause,” § 7135(b), and on the Assistant Secretary of Labor's 

decision in Thompson Field, is both misplaced and unpersuasive on its own terms. See Mississippi National Guard, 172d 

Military Airlift Group (Thompson Field), Asst. Sec. Labor/ 

Management Relations (A/SLMR) No. 20 (Thompson Field). 

Section 7135(b) provides that “[p]olicies, regulations, and 

procedures established under and decisions issued under Executive Orde[r] 11491 . . . shall remain in full force and effect 

until revised or revoked by the President, or unless superseded by specifc provisions of [the Statute] or by regulations 

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Alito, J., dissenting 

or decisions issued pursuant to [the Statute].” This language merely directs that, absent specifc abrogation by the 

FSLMRS or reconsideration by the appropriate executive 

offcer, prior administrative policies, regulations, and procedures remain just as binding on the Executive Branch as 

they were before the adoption of the FSLMRS. The Court 

appears to agree, describing the saving clause as having “continued” pre-FSLMRS administrative practice. Ante, at 459. 

If that is all that the saving clause did, however, I fail to 

see why it is relevant here. Congress's directive to “continu[e]” existing administrative practices does not evince approval of any particular practice or prevent a court from saying that a particular practice has been unlawful all along. 

The saving clause “expressly intended to allow both the 

[FLRA] and the courts to disregard . . . earlier . . . interpretation[s] of the Executive Order” and “did not intend for the 

[FLRA] or the courts to pay any deference to [such earlier] 

interpretations.” INS v. FLRA, 855 F. 2d 1454, 1461 (CA9 

1988); see also Department of Air Force v. FLRA, 877 F. 2d 

1036, 1041 (CADC 1989) (§ 7135 “was merely intended to prevent the slate from being wiped clean until the [FLRA] and 

the courts could interpret the [FSLMRS] in a manner consistent with Congress's intent” (internal quotation marks 

omitted)). Prior agency practice under the “materially 

identical” language of Executive Order No. 11491 is thus no 

obstacle to adopting the straightforward reading of “agency” 

the FSLMRS's text requires. Ante, at 460. 

Although the majority's historical-practice argument is 

fawed at the foundation because it misreads § 7135(b), the 

single administrative decision it cites in support of its argument does not shed much light on the matter at hand anyway. 

In Thompson Field, the Adjutant General of the State of 

Mississippi raised a number of objections to federal oversight 

of the technicians, including that the technicians are not federal employees; that Executive Order No. 11491 is categorically “not applicable to the State of Mississippi”; and that 

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Alito, J., dissenting 

bargaining with a technicians' union would violate Mississippi law. Thompson Field, at 3–5. 

The Mississippi Adjutant General did not make the argument that his Department is not an “agency” within 

the meaning of the remedial provision of Executive Order 

No. 11491. 

Moreover, in deciding Thompson Field, the Assistant Secretary of Labor relied principally on the fact that dual-status 

civilian technicians are federal employees and that the protections of Executive Order No. 11491 apply to them. Id., 

at 6–7. That analysis does not answer the key question 

whether the Mississippi Adjutant General is an “agency” 

subject to remedial jurisdiction. And while the Court 

quotes the Assistant Secretary's remark that the Adjutant 

General is “ `an agent of the Secretaries of the Army and the 

Air Force,' ” ante, at 460, that observation was made in the 

course of rejecting the Adjutant General's argument that 

Mississippi law did not permit him to bargain with a labor 

organization. Thompson Field, at 7. The Assistant Secretary was not addressing the question whether being an 

“agent” of those Secretaries rendered the Adjutant General 

suffciently “like an agency” to be subject to federal remedial jurisdiction. 

A single administrative decision, like a single or even “a 

smattering of lower court opinions,” is ordinarily not especially probative of statutory meaning. BP p.l.c. v. Mayor 

and City Council of Baltimore, 593 U. S. –––, ––– (2021); see 

also George v. McDonough, 596 U. S. –––, ––– (2022) (explaining that a “robust regulatory backdrop” may “fl[l] in the 

details” of a statutory scheme (emphasis added)). The saving clause does not render this case an exception. Consequently, a single administrative decision by an Assistant Secretary that does not even address the particular argument 

petitioners raise in this case offers no reason to resist the 

conclusion that the Ohio Adjutant General's Department is 

plainly not a federal agency. 

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Alito, J., dissenting 

II 

Because no petitioner is an “agency” within the meaning 

of § 7105(g)(3), I would reverse the judgment of the Sixth 

Circuit and hold that petitioners fall outside the remedial 

jurisdiction of the FLRA. I respectfully dissent from the 

Court's contrary conclusion. 

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Reporter’s Note 

The attached opinion has been revised to refect the usual publication 

and citation style of the United States Reports. The revised pagination 

makes available the offcial United States Reports citation in advance of 

publication. The syllabus has been prepared by the Reporter of Decisions 

for the convenience of the reader and constitutes no part of the opinion of 

the Court. A list of counsel who argued or fled briefs in this case, and 

who were members of the bar of this Court at the time this case was 

argued, has been inserted following the syllabus. Other revisions may 

include adjustments to formatting, captions, citation form, and any errant 

punctuation. The following additional edits were made: 

p. 450, line 10 from bottom, “Reports” is replaced with “Relations” 

p. 454, line 15, “No.” is inserted after “Order” 

p. 458, line 20, “No.” is inserted after “Order” 

p. 460, line 6, “Reports” is replaced with “Relations” 

p. 467, line 6 from bottom, “Reports” is replaced with “Relations”