Lipscomb v. Federal Labor Relations Authority

United States Court of Appeals

Fifth Circuit

F I L E D

REVISED JUNE 30, 2003 June 24, 2003

IN THE UNITED STATES COURT OF APPEALS

Charles R. Fulbruge III

FOR THE FIFTH CIRCUIT Clerk

_____________________

No. 02-60060

_____________________

JAMES H. LIPSCOMB, III, Major General,

in his official capacity as the Adjutant

General of the State of Mississippi, of

the Militia, of the Mississippi National

Guard, and as the Executive Head of

the Mississippi Military Department;

MISSISSIPPI MILITIA; MISSISSIPPI NATIONAL

GUARD; MISSISSIPPI MILITARY DEPARTMENT,

Plaintiffs - Appellants,

versus

FEDERAL LABOR RELATIONS AUTHORITY, NANCY

SPEIGHT, in her official capacity as

Regional Director of the Federal Labor

Relations Authority, Atlanta Region;

LINDA J. NORWOOD, in her former official

capacity as Acting Regional Director of

the Federal Labor Relations Authority,

Atlanta Region,

Defendants -Appellees.

_______________________________________________________________

Appeal from the United States District Court

for the Southern District of Mississippi

_________________________________________________________________

Before JOLLY, DUHÉ, and WIENER, Circuit Judges.

E. GRADY JOLLY, Circuit Judge:

This appeal involves the efforts of the Association of Civilian

Technicians (“ACT”), a labor union, to conduct a representation

election among the Mississippi Army National Guard civilian

technicians. Adjutant General Lipscomb in his official capacity as

head of the Mississippi National Guard (“MSNG”), the Mississippi

Militia, and the Mississippi Military Department (along with the

entities themselves) (collectively, “Lipscomb”), brought this action

for a declaratory judgment that the Federal Labor Relations

Authority (“FLRA”) had no authority under the Federal Service Labor-

Management Relations Act (“FSLMRA”) to order the Mississippi Army

National Guard (“MSANG”), a unit of MSNG, to permit a union election

among its technicians. The district court dismissed the complaint,

finding that the MSANG, as a subpart of the MSNG, and a federally

recognized unit of the Army National Guard of the United States, is

an activity of a federal agency; and that the Adjutant General

(“AG”), as the duly authorized representative of the United States

military service secretaries, is itself a federal agency. Thus, the

district court concluded, the MSNG, MSANG, and AG are properly

subject to the jurisdiction of the FLRA.

We hold that the civilian technicians, clearly federal

employees by virtue of the National Guard Technicians Act, Pub. L.

No. 90-486, 82 Stat. 775 (codified as amended at 32 U.S.C. § 709

(2003)), are included under the terms of the FSLMRA as federal

employees of an Executive agency. We further find that the AG –-

as an employer of these federal employees -- along with the MSNG and

MSANG, which organizations operate under the AG’s authority and

direction, are federal executive agencies for the purpose of the

2

FSLMRA, and consequently are subject to the jurisdiction of the

FLRA. Accordingly, we agree with the district court and AFFIRM its

judgment dismissing the complaint.

I

In April 2000, the ACT petitioned the FLRA to order an election

among the MSANG technicians. After an evidentiary hearing on the

proposed bargaining unit and associated issues, the FLRA’s office

in Atlanta granted ACT’s petition in February 2001 and ordered an

election. On review to the FLRA in Washington, DC, this decision

was upheld in June. When FLRA officials ordered an election,

Lipscomb filed the present action, seeking declaratory and

injunctive relief. Lipscomb alleged that the defendants were acting

in excess of their statutory powers and in violation of plaintiffs’

constitutional rights. The district court found it had jurisdiction

over the action for declaratory judgment, and granted summary

judgment in favor of the FLRA, holding that the FLRA had authority

to order an election.

In reaching its conclusion, the district court, in a thorough

and cogent opinion, found that MSNG is a federal agency; that MSANG

is an activity of a federal agency; that because the AG wears a

federal hat for purposes of applying the FSLMRA, the constitutional

claims under the Tenth and Eleventh Amendments lacked merit; and

finally, that because of the civilian nature of the technicians’

employment, the doctrine of Feres v. United States, 340 U.S. 135

3

(1950) (military aspects of civilian employment are not subject to

negotiation) did not apply.

On appeal, Lipscomb argues that the application of the FSLMRA

to the MSANG and MSNG conflicts with the statutory scheme under

which the Guard operates, with precedents of the Supreme Court and

this Circuit, with the Tenth and Eleventh Amendments to the United

States Constitution, and with the Feres doctrine. More

specifically, Lipscomb contends that neither the MSNG, the MSANG,

nor the AG are federal executive “agencies” or “activities” of those

agencies within the meaning of 32 U.S.C. § 7103(a)(3) and related

regulations, and therefore that the FLRA lacks jurisdiction over

them.

II

We begin our consideration of this appeal with full recognition

that the national guard is the militia, in modern-day form, that is

reserved to the states by Art. I § 8, cls. 15, 16 of the

Constitution. Maryland v. United States, 381 U.S. 41, 46 (1965).

However, in the modern-day federal scheme, the national guard has

come to occupy a unique place. It has become, by design, a “hybrid”

entity that carefully combines both federal and state

characteristics, sometimes distinctly and sometimes not. The second

Militia clause of the federal Constitution illustrates this duality,

reserving “to the States respectively, the Appointment of the

Officers, and the Authority of training the Militia according to the

4

discipline prescribed by Congress.” Const. art. I, § 8, cl. 16.

The daily operations of the national guard units are thus

recognized generally to be under the control of the states, but

governed largely by substantive federal law. Under the National

Defense Act, 39 Stat. 166, passed in 1916, the guard has been

trained in accordance with federal standards and is armed and funded

by the United States government. The Army National Guard of the

United States is a component of the Army, and is made up of the

federally recognized units and organizations of the Army National

Guards in the respective fifty states. 10 U.S.C. §§ 3062, 10105.

This dual federal-state nature of the national guard system has

remained essentially unchallenged, as the Supreme Court has

observed. Perpich v. Department of Defense, 496 U.S. 334, 347

(1990).

In addition to its part-time, purely military personnel, the

national guard employs full-time civilian workers, described as

national guard technicians. These civilian technicians -- the

object of the union’s organizing efforts here -- are employed by and

perform the daily operations of the state guard units, but are

funded by the federal government. Despite their state character,

these employees were explicitly granted federal employee status in

1968 when Congress enacted the Technicians Act. “In 1968, Congress

was reacting to a situation in which national guard technicians were

considered state employees and consequently were not assured of

5

uniform treatment with respect to fringe benefits or retirement

plans.” New Jersey Air National Guard v. FLRA, 677 F.2d 276, 283-84

(3d Cir. 1982) (“New Jersey Guard”). To provide uniformity and

afford national guard technicians the emoluments of federal service,

“all Guard 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.” Id. at 279. Thus, through an act

of Congress, national guard technicians are by design “dual-status”

employees. See Brown v. United States, 227 F.3d 295, 298 (5th Cir.

2000); Davis v. Vandiver, 494 F.2d 830, 832 (5th Cir. 1974) (“The

principal purpose of the National Guard Technicians Act . . . was

to create a bifurcated nature of technician employment . . ..”).

In granting technicians federal employee status under the

Technicians Act, Congress was nonetheless concerned with protecting

the military authority of the states. Accordingly, “federal

employee status was carefully hinged upon the reservations set out

in section 709[(f)]) of certain powers to the state adjutants

general.” New Jersey Guard, 677 F.2d at 284. “[S]ection 709[(f)],

which ensures the authority of the state adjutants general, can be

viewed as a virtual quid pro quo for the section 709[(e)] grant of

federal employee status.” Id. Numerous courts, after reviewing

the legislative history of the Technicians Act, have held that the

matters explicitly reserved to the discretion of the adjutants

6

general by section 709(f) reflect Congress’s careful compromise, and

thus are beyond the scope of bargaining under the FSLMRA.1 See,

e.g., New York Council, Ass’n of Civilian Technicians v. FLRA, 757

F.2d 502, 505 (2d Cir. 1985); Indiana Air National Guard v. FLRA,

712 F.2d 1187, 1190, n.3 (7th Cir. 1983); State of Nebraska Military

Department, Office of the Adjutant General v. FLRA, 705 F.2d 945

(8th Cir. 1983); California National Guard v. FLRA, 697 F.2d 874

(9th Cir. 1983). These decisions recognized and safeguarded the

careful state-federal power balance struck by Congress in enacting

the Technicians Act; “it was necessary to carefully craft the

legislation so as not to compromise the essential military

requirements of state guard service.” American Federation of

Government Employees, AFL-CIO, Local 2953 v. FLRA, 730 F.2d 1534,

1543 (D.C.Cir. 1984). Section 709(f) reflects that deliberate

calibration, and the courts, interpreting portions of the

Technicians Act as exceptions to the FSLMRA’s broad coverage, have

found it to be a substantial check on the scope of the FLRA’s

1

The current section 709(f) was previously 709(e) and is referred to as such in cases prior to

the 1999 Amendments, Pub.L. 106-65, § 524, which rewrote parts of § 709. This opinion will refer

to the current statute.

7

authority.2 We now turn to examine more closely the act under which

the FLRA attempts to assert jurisdiction over the MSANG.

III

The Civil Service Reform Act of 1978 brought about a new era

of labor-management relations for the federal service. Pub. L. No.

95-454, 92 Stat. 111, 5 U.S.C § 7101, et seq. Title VII of the

Reform Act, the FSLMRA, governs the labor relations of most federal

employees with the federal government. The FSLMRA “grants federal

agency employees the right to organize, provides for collective

bargaining, and defines various unfair labor practices. §§

7114(a)(1), 7116. It creates the FLRA, which is responsible for

administering the statute through the exercise of broad

adjudicatory, policymaking and rulemaking powers. §§ 7104, 7105.”

Nat’l Federation of Federal Employees, Local 1309 v. Dept. of

Interior, 526 U.S. 86, 88 (1999). The Act applies to employees of

an “Executive agency,” § 7103(a)(2)-(3), and states that “each

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

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

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

in the exercise of such right.” § 7102. Notably, the Act

2

It is worth noting that the FLRA itself protects this balance, rejecting unions’ efforts to

encroach on the discretion of the adjutants general by seeking to force bargaining over certain,

excepted terms and conditions of technicians’ employment. See, e.g., American Federation of

Government Employees, AFL-CIO, Local 2953 v. FLRA, 730 F.2d 1534, 1541 (D.C.Cir. 1984)

(affirming FLRA’s decision upholding the national guard’s refusal to bargain over matters that would

conflict with the mandate of the Technicians Act).

8

specifically exempts certain Executive agencies from coverage,

including the General Accounting Office, the Federal Bureau of

Investigation, the Central Intelligence Agency, the National

Security Agency, and the Federal Labor Relations Authority, among

others. See § 7103(a)(3)(A)-(H). Although members of the uniformed

services are explicitly exempted, § 7103(a)(2)(B)(ii), the national

guard as such is not mentioned, nor are the civilian technicians

employed thereby. Thus, we turn to address the next question (and

now we begin to get into a thicket), whether the civilian

technicians of the MSANG are “employees of an Executive agency” of

the federal government within the meaning of the FSLMRA.

IV

Under the Technicians Act, a civilian technician in a state

national guard is statutorily “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). It is thus

indisputable that the technicians of the MSANG are “employees of an

Executive agency” under the coverage terms of the FSLMRA. They

therefore have the right to choose union representation, as indeed

numerous cases have acknowledged. See, e.g., Association of

Civilian Technicians, Schenectady Chap. v. FLRA, 230 F.3d 377, 378

(D.C.Cir. 2000) (observing that, as federal employees, the guard’s

civilian technicians are entitled to engage in collective bargaining

over certain matters); New York Council, Ass’n of Civilian

9

Technicians v. FLRA, 757 F.2d 502, 508 (2d Cir. 1985) (noting that

federal employees’ labor relations are governed by the Civil Service

Reform Act, and applying the Act to national guard technicians); New

Jersey Guard, 677 F.2d at 284 (noting the FSLMRA exempts certain

executive agency employees from coverage, but because it does not

reference the national guard or its technicians, it applies to

them).

Nevertheless, Adjutant General Lipscomb maintains that the

MSANG, the MSNG, and the AG are not subject to the jurisdiction of

the FLRA because, while the technicians are federal employees for

certain purposes, these entities that directly employ and supervise

them are not federal “Executive agencies” under § 7103(a)(3), nor

does their employment of the technicians constitute “federal

activities” of an agency under 5 C.F.R. 2421.4.3 Consequently, to

the extent that these technicians may be considered federal

employees of the appellants, Adjutant General Lipscomb argues, they

are not “employees of a federal Executive agency” within the meaning

of the FSLMRA and are not subject to its coverage. The question is

thus reduced to whether these state national guard entities are

“federal executive agencies” for purposes of the FSLMRA, because if

they are, they are plainly covered within its terms. Although many

3

5 C.F.R. § 2421.4 defines “Activity” as it is used in the regulations implementing the

FSLMRA. See 5 C.F.R. 2420.1 (purpose of subchapter is to implement Chapter 71 of Title 5,

governing Labor-Management Relations). Section 2421.4 states that “Activity means any facility,

organizational entity or geographical subdivision or any combination thereof, of any agency.”

10

courts have had occasion to review various aspects of the

Technicians Act and its interaction with the FSLMRA, it appears that

no court of appeals has addressed the jurisdictional questions from

the perspective raised by Lipscomb in this case. All of the

decisions analyzing FLRA orders and actions taken with respect to

the various state national guard organizations apparently have

accepted without question the jurisdiction of the FLRA over them and

their related entities, but only by virtue of the federal status of

the employees, not the status of their employer.4

We should make reference to another factor (which we have

earlier noted) that burdens appellants’ argument that none of them

is an “Executive agency.” By the express terms of the Technicians

Act, the civilian technicians of the MSANG –- bifurcated though the

nature of their employment may be -- are declared to be federal

employees of an Executive agency, i.e., the Department of the Army.

32 U.S.C. § 709(e). As such, it would seem that they are, by

definition, statutorily entitled to the union organizational rights

created for federal employees by the FSLMRA. See Association of

Civilian Technicians, 230 F.3d at 378. Yet, given how the issue is

framed in this case, we must consider whether the Adjutant General,

as the designated employer of these particular federal employees,

4

Even the MSNG, now contesting the FLRA’s authority over it, has appeared previously

before the FLRA to contest the appropriateness of a proposed bargaining unit, apparently without

raising the jurisdictional objection now presented. Mississippi National Guard Mates Shop, Camp

Shelby and Association of Civilian Technicians, Inc., 12 F.L.R.A. 618 (1983).

11

and the entities he oversees, are federal agencies for the purpose

of the FSLMRA, and are thus subject to the jurisdiction of the

FLRA.5

A.

The Adjutant General

We first examine the status of the Adjutant General in

determining whether the FLRA properly asserts jurisdiction over the

MSANG and MSNG. The appellants admit, as they must, that the AG is

an employer, indeed the ultimate employer, of these federal

employees as provided under an act of Congress, the Technicians Act.

They also acknowledge that he is the officer with ultimate control

over and responsibility for the MSNG and MSANG under state law. It

follows from the undisputed federal status of the technicians that

their employer and supervisor is, at the very least, an employer of

federal employees. By any ordinary standard of reasoning, it would

seem incontrovertible, in the absence of a contrary statutory

definition,6 that a statutory employer of regular and permanent

5

Certainly, nothing in this opinion expands the scope of the Mississippi National Guard’s duty

to bargain; we are not called upon to examine any of the areas reserved by § 709(f) to the sole

discretion of the adjutants general of the states. We proceed with the utmost caution, fully cognizant

of the unique role and duty the national guard plays in the defense of this nation, as well as the special

role the states have in administering the national guard and the Technicians Act; we do not purport

to subject the national guard to any greater burden in its labor relations than that permissible under

the existing law. We merely hold that the federal employees employed by the AG and MSANG are

entitled to the rights afforded the rest of the non-excepted federal civilian employees, and recognized

in countless court decisions affecting numerous national guard units and entities.

6

5 U.S.C. § 7103(a)(3) defines “agency” as “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 Printing Office, and the

12

federal employees, is a “federal employer;” and, consequently, that

a federal employer of such federal employees of the Executive

Department, with the authority to direct and supervise all of their

day-to-day work, must constitute, at least in some recognizable, if

limited sense, an “agency” of the Executive branch of the federal

government.

Yet the AG argues that because of his purely state character

as an officer appointed by the state, in charge only of the state

militia under Article I, § 8 of the Constitution, with authority

primarily drawn from state statutes -- and with no federal statute

expressly defining him as a “federal executive agency” -- he is not,

under the terms of the FSLMRA (defining coverage as employees of an

“Executive agency”), subject to the jurisdiction of the FLRA. We

must admit that if one is searching for translucent, definitional,

statutory words under the FSLMRA stating that the entities composing

the Mississippi National Guard constitute an “Executive agency”, the

Smithsonian Institution but does not include--

(A) the General Accounting 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.”

We find that the broad and somewhat circular terms of the statutory definitions of agency and

Executive agency are non-dispositive in resolving the specific question that this appeal presents.

13

search will be disappointing. But yet our consideration of the many

factors to which we have alluded –- most arising from the

Technicians Act -- leaves no doubt that the hybrid character of the

AG includes a federal component, which in his capacity as employer

of the technicians renders him an “Executive agency”. As one court

has observed, Section 709 “charges the adjutant generals with

employment and administration of the civilian technicians who are

federal employees. In view of the foregoing there can be no doubt

that the Adjutant General of Delaware is an agency or an agent of

the United States and therefore within the purview of § 1361

[providing action for mandamus in district courts against federal

officers or agencies].” Chaudoin v. Atkinson, 494 F.2d 1323, 1329

(3d Cir. 1974).

Indeed, in NeSmith v. Fulton, 615 F.2d 196, 198 (5th Cir.

1980), this Court held that the AG is itself a federal agency,

despite its status as a state office, because of the federal nature

of the employees the AG supervises and the substantive federal law

that governs the AG’s duties. “The conclusion that an adjutant

general is a federal agency as well as a state officer reflects the

hybrid state-federal character of the National Guard and the role

of adjutants general in administering it.” Id. at 199. Although

this holding was applied to resolve a procedural issue, the court’s

conclusion in NeSmith -- that the AG is itself a federal agency --

constitutes precedent that, even without other considerations to

14

which we have alluded, will control the outcome of this case. See

also Chaudoin, 494 F.2d at 1329; Gilliam v. Miller, 973 F.2d 760,

762 (9th Cir. 1992) (Oregon AG’s personnel actions taken as

supervisor of the federal civilian technicians were taken in the

capacity of a federal agency, for purposes of determining whether

the federal Administrative Procedures Act applies). In short, the

AG constitutes an “Executive agency” for the purposes of this case.

Because of the federal character that the AG assumes under the

Technicians Act, and because the FLRA asserts its jurisdiction over

these entities only in their federal capacities, Appellants’

remaining arguments, based on the Tenth and Eleventh Amendments to

the federal Constitution and the state character of the AG, must

fail.7

B.

The Mississippi National Guard &

The Mississippi Army National Guard

The AG argues, however, that even if the AG is a federal

agency, this appeal still is not resolved. He points out that the

FLRA does not seek to assert its jurisdiction over the AG -- that

7

The AG relies on the Tenth and Eleventh Amendments to the Constitution to avoid the

FLRA’s assertion of jurisdiction over it. Appellants argue that the application of the FSLMRA to the

AG amounts to conscription of a state official into the performance of a federal duty in violation of

the Tenth Amendment. Printz v. United States, 521 U.S. 898 (1997). The conclusion that the AG

is a federal agency, subject to the FSLMRA in its federal capacity, renders Printz inapposite.

MSNG’s second constitutional argument relies on the Eleventh Amendment and Federal

Maritime Commission v. South Carolina State Ports Authority, 535 U.S. 743 (2002) (state sovereign

immunity precluded a federal agency from adjudicating a private party’s complaint that the state port

had violated the Shipping Act). For the purposes of the rights asserted in this case, the MSNG is a

federal agency, unlike the state port in South Carolina.

15

is to say, the AG is not a respondent to the underlying agency

proceedings. Instead, only the MSNG and MSANG -- the entities to

which the technicians are assigned -- are named as the employer

parties in the proceedings before the FLRA. In this connection, the

district court held that MSNG is a federal executive agency for

purposes of the FSLMRA, 5 U.S.C. § 7103(a)(3), and that MSANG is an

“activity” of a federal agency under 5 C.F.R. § 2421.4 (“Activity

means any facility, organizational entity, or geographical

subdivision or any combination thereof, of any agency.”), and thus

they are subject to the obligations of the FSLMRA. The district

court concluded that MSANG is an “activity” of the Department of the

Army, because it is recognized as a part of the Army National Guard

of the United States.8 Lipscomb argues that neither the MSNG or the

8

The district court’s analysis reasoned as follows:

[T]he statute defines “agency” to mean an “Executive

agency,” 5 U.S.C. § 7103(a)(3), which is in turn defined as

“an Executive department ....” 5 U.S.C. § 105. The

Department of Defense is an “executive department,” see 5

U.S.C. § 101, and 10 U.S.C. § 111(a); and the Department of

the Army is a component of the Department of Defense, see

10 U.S.C. § 111(b)(6). The Department of the Army consists

of the Regular Army, the Army National Guard of the United

States, the Army National Guard while in service of the

United States and the Army Reserve, see 10 U.S.C. §

3062(b)-(d); and the Army National Guard of the United

States is the reserve component of the Army that consists in

relevant part of the “federally recognized units and

organizations of the Army National Guard,” see 10 U.S.C. §

10105. As it is indisputable “a federally recognized unit[] and

organization of the Army National Guard,” the Mississippi

Army National Guard (which is a subset of the MSNG), is

16

MSANG are agencies, and that the MSANG, by whom the instant

technicians are employed, is not an “activity” of a federal agency.9

At the outset, we must say that once we have determined that

the AG is a federal executive agency, it requires little exercise

in reasoning for us to conclude that the MSANG and MSNG are

executive agencies for the purpose of FLRA authority and this legal

proceeding. This is true because they exist and operate under the

authoritative direction and control of the adjutant general –-

indeed they are merely the adjuncts of his office, under whom, and

on whose behalf, civilian technicians work.

The AG is the executive head of the Mississippi military

department, Miss. Code. § 33-3-3, and he “shall provide for and be

responsible for the organization, training, tactical employment, and

discipline of the Mississippi National Guard ....” Miss. Code. §

33-3-11. This includes the supervision and authorization of the

Assistant Adjutants General for Army and Air. See e.g., Miss. Code.

thus an element of the Army National Guard of the United

States, and hence falls within the definition of “activity” of an

“agency” within the meaning of § 7103(a)(3) of the FLSRA,

which extends to federal agencies and to “activities” of federal

agencies. See 5 C.F.R. § 2421.4.

Lipscomb v. Federal Labor Relations Authority, 200 F.Supp.2d 650, 660 (S.D.Miss. 2001).

9

As we note below, the question whether the FLRA can compel the Mississippi National

Guard’s compliance with the FLRA may be adequately resolved by the nature of AG Lipscomb

himself -- a federal employer and agency for purposes of the FSLRA. However, because the parties

ascribe great importance to the nature of the MSANG, we address this issue.

17

§ 33-3-9 (Assistant Adjutant General for Army “shall aid the

Adjutant General by the performance of such duties as may be

assigned to him”). It follows that, to the extent that the AG acts

as an executive agency of the federal government, when the AG acts

through the MSNG and MSANG in carrying out his federal duties -- as

he does here as the employer of the technicians –- they likewise are

departments of the federal agency of the AG -- or if one chooses to

use the words of the federal regulations, supra, these organizations

are “activities” of a federal agency. Certainly, the appellants

have offered no basis for us to reject this rationale, plainly

dictated by a common sense reading of the applicable state statutes

when considered in the light of our holding that the AG constitutes

a federal executive agency.10

V

In sum, the appellants have provided us with no persuasive

reason to reject decades of settled practice and the decisions of

our sister circuits, which have upheld the organizational rights of

national guard civilian technicians under the FSLMRA. Although

neither we nor other appellate courts have previously addressed the

precise arguments presented in this appeal, the resolution of the

10

Lipscomb cites Clark v. United States, 322 F.3d 1358 (Fed. Cir. 2003) to support his

argument that because the MSANG is an organizational entity of the state, distinct from the National

Guard of the United States, it cannot be deemed a federal “Executive agency.” Clark addressed the

status of guardsmen -- not dual-status technicians -- under a wholly different statutory scheme.

Consequently, Clark does not affect this Court’s conclusions with respect to the federal character of

AG Lipscomb or the entities he controls.

18

ultimate jurisdictional question presented is straightforward:

Federal employees of federal executive agencies, with the noted

statutory exceptions, are entitled to exercise the rights provided

in the FSLMRA. The civilian technicians are non-excluded federal

employees under the Act, and the AG employs those civilian

technicians; as the federal employer of these federal employees,

with full authority over such federal employees, the AG 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.

Thus, for the reasons set out above, the appellants have failed

to demonstrate that the district court erred in denying to them a

declaratory judgment that the FLRA has no authority over the MSANG

to order an election among the technicians in its service.11

Accordingly, the judgment of the district court dismissing the

complaint for declaratory relief is

AFFIRMED.

11

Appellants’ argument that this action is barred by Feres v. United States, 340 U.S. 135

(1950), is inapposite. In Feres, the Supreme Court held that military officers were not liable for

injuries arising out of active duty in the armed forces. This action involves efforts by a federal agency

to vindicate civilian employees’ union rights, not by an individual seeking to impose liability on an

officer of the military for duties arising from the unique relations between soldiers and their superiors.

The Feres doctrine does not reach this case. See Chappell v. Wallace, 462 U.S. 296, 299, 305

(1983).

19