Reply Brief — The Ohio Adjutant General's Department, et al., Petitioners v. Federal Labor Relations Authority, et al.

No. 21-1454

In the Supreme Court of the United States

______________________________

THE OHIO ADJUTANT GENERAL’S DEP’T, ET AL.,

Petitioners,

v.

FEDERAL LABOR RELATIONS AUTHORITY, ET AL.,

Respondents.

______________________________

ON PETITION FOR WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

______________________________

REPLY IN SUPPORT OF PETITION FOR WRIT

OF CERTIORARI

______________________________

DAVE YOST

Ohio Attorney General

BENJAMIN M. FLOWERS*

*Counsel of Record

Ohio Solicitor General

MICHAEL J. HENDERSHOT

Chief Deputy Solicitor General

30 E. Broad St., 17th Floor

Columbus, Ohio 43215

614-466-8980

bflowers@ohioago.gov

Counsel for Petitioners

i

QUESTIONS PRESENTED

1. Does the Civil Service Reform Act of 1978,

which empowers the Federal Labor Relations Authority to regulate the labor practices of federal agencies

only, see 5 U.S.C. §7105(g), empower it to regulate the

labor practices of state militias?

2. The second Militia Clause empowers Congress

to “provide for organizing, arming, and disciplining,

the Militia, and for governing such Part of them as

may be employed in the Service of the United States.”

U.S. Const. art. I, §8, cl. 16. Assuming the Civil Service Reform Act of 1978 permits the Federal Labor Relations Authority to regulate the labor practices of

state militias, is the Act unconstitutional in its application to labor practices pertaining to militia members

who are not employed in the service of the United

States?

ii

TABLE OF CONTENTS

QUESTIONS PRESENTED ........................................ i

TABLE OF CONTENTS .............................................ii

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

REPLY ......................................................................... 1

I.

The Reform Act does not empower the

Authority to regulate state national

guards or state adjutants general................. 3

II.

The Authority’s interpretation of the

Reform Act raises constitutional doubts

under the second Militia Clause. .................. 8

CONCLUSION.......................................................... 11

iii

TABLE OF AUTHORITIES

Cases

Page

Am. Fed’n of Gov’t Emps., Local 2953 v.

Fed. Labor Relations Auth.,

730 F.2d 1534 (D.C. Cir. 1984).............................. 6

Babcock v. Kijakazi,

142 S. Ct. 641 (2022) ......................................... 4, 6

Berger v. N.C. State Conf. of the

NAACP,

142 S. Ct. 2191 (2022) ........................................... 3

Camden v. Maryland,

910 F. Supp. 1115 (D. Md. 1996) ...................... 5, 6

Cameron v. EMW Women’s Surgical

Ctr., P.S.C.,

142 S. Ct. 1002 (2022) ........................................... 3

Campbell-Ewald Co. v. Gomez,

577 U.S. 153 (2016) ............................................... 5

DiManni v. R.I. Army Nat’l Guard,

62 F. App’x 937 (Fed. Cir. 2003) ........................... 7

Fed. Election Comm’n v. Cruz,

142 S. Ct. 1638 (2022) ........................................... 8

New York v. United States,

505 U.S. 144 (1992) ............................................. 11

NFIB v. OSHA,

142 S. Ct. 661 (2022) (per curiam) ........................ 2

iv

Ramaprakash v. FAA,

346 F.3d 1121 (D.C. Cir. 2003).............................. 3

Richardson v. McKnight,

521 U.S. 399 (1997) ............................................... 5

Singleton v. Merit Systems Protection

Board,

244 F.3d 1331 (Fed. Cir. 2001) .............................. 7

United States v. Jeffries,

692 F.3d 473 (6th Cir. 2012) ................................. 3

Statutes and Constitutional Provisions

U.S. Const. art. I, §8, cl.16.................................... 1, 10

U.S. Const. amend. IX ................................................ 9

U.S. Const. amend. X .................................................. 9

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

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

5 U.S.C. §7103(a)(3) .................................................... 1

5 U.S.C. §7105(g)(3) .................................................... 1

5 U.S.C. §7118(a) ........................................................ 1

10 U.S.C. §10216(a)(1)(A) ........................................... 4

10 U.S.C. §10503(8) .................................................. 10

32 U.S.C. §108 ........................................................... 10

32 U.S.C. §709(a) .................................................. 7, 10

v

32 U.S.C. §709(b) ........................................................ 4

32 U.S.C. §709(d) .................................................. 4, 10

32 U.S.C. §709(e)..................................................... 4, 7

Intergovernmental Personnel Act of

1970, Pub. L. 91–648, 84 Stat. 1920,

5 U.S.C. §§3371–3376............................................ 5

National Guard Technicians Act, Pub.

L. No. 90-486, 82 Stat. 755, 32

U.S.C. §709 ............................................................ 6

Other Authorities

Restatement (Third) of Agency (2006) ....................... 5

S. Rep. No. 90-1446 (1968) ......................................... 6

REPLY

This case presents the question whether the Civil

Service Reform Act of 1978 empowers the Federal Labor Relations Authority to regulate the petitioners’ labor practices. The answer is no. The Reform Act empowers the Authority to regulate only federal

“agenc[ies],” 5 U.S.C. §7105(g)(3); accord 5 U.S.C.

§7118(a), which the Act defines to include only “Executive department[s],” “Government corporation[s],”

and certain “independent establishment[s]” within

the executive branch. 5 U.S.C. §105; see also id. at

§§104, 7103(a)(3); Pet.14–15. But the petitioners—

the Ohio National Guard, the Ohio Adjutant General,

and the Ohio Adjutant General’s Department—are

not Executive departments, government corporations,

or independent establishments. (This brief will refer

to them collectively as the Ohio National Guard.)

They are all state officials or state entities. It follows

from these premises, which neither the Authority nor

the intervenor-union disputes, that the Authority has

no power to issue orders to the Ohio National Guard.

In this very case, two of the Authority’s three members doubted their ability to issue orders to the Guard.

See Pet.App.26a–27a (Abbott, M., concurring); id. at

28a–33a (Kiko, Ch., dissenting). For good reason. As

just explained, such orders contravene the Act’s plain

text. Further, if the Reform Act did empower the Authority to regulate the Guard’s labor practices, the Act

would exceed Congress’s constitutional authority. To

be sure, the second Militia Clause empowers Congress

to enact laws governing “such Part” of state militias

“as may be employed in the Service of the United

States.” U.S. Const. art. I, §8, cl.16. But that clause

cannot be read as empowering Congress to regulate

the state militias’ day-to-day labor relations. The

2

phrase “employed in the Service of the United States”

covers individuals called into active duty for the country. And if the Reform Act applies to disputes between

the Guard and individuals who work for it, it applies

even with respect to labor relations concerning individuals who are not in active duty. The Reform Act

would thus exceed the scope of Congress’s Militia

Clause power.

The Sixth Circuit accepted the Authority’s reading

anyway. It relied primarily on precedent. Pet.App.

11a–12a. And indeed, the circuits have uniformly

held, often with little in the way of analysis, that the

Reform Act empowers the Authority to regulate the

labor practices of state national guards and state adjutants general. Pet.App.12a (collecting cases).

This is the rare case in which the Court should

grant review notwithstanding the absence of any circuit split. The Authority is interfering with state governance using powers Congress never gave it. Allowing that to continue—notwithstanding the principle

that federal agencies “possess only the authority that

Congress has provided” them, NFIB v. OSHA, 142 S.

Ct. 661, 665 (2022) (per curiam)—would undermine

the horizontal separation of powers. And this particular overreach, because it interferes with matters at

the core of state sovereign authority, would contribute

to the “erosion of federalism.” Br. of Amici Curiae Mississippi, et al., 2. That is why Mississippi and ten

other States submitted an amicus brief urging this

Court to grant review. As if to bolster the sovereign

interests this case implicates, the Authority’s brief includes a bizarre footnote suggesting that state national guards and adjutants general must sometimes

beg the United States Solicitor General for permission

to appeal their own cases protecting their own

3

interests. US Br.16 n.3. If that is one consequence of

the prevailing view in the circuit courts, it is all the

more reason to grant review. The way a State may

defend its interests in federal court is a matter worthy

of this Court’s attention. See, e.g. Cameron v. EMW

Women’s Surgical Ctr., P.S.C., 142 S. Ct. 1002, 1009

(2022); cf. Berger v. N.C. State Conf. of the NAACP,

142 S. Ct. 2191, 2197, 2200 (2022).

The unanimity in the circuits, combined with the

weakness of the Authority’s arguments, suggests the

circuits have fallen into a groove. See Ramaprakash

v. FAA, 346 F.3d 1121, 1122 (D.C. Cir. 2003). The

longer they remain in that groove—the longer their

erroneous view prevails—the less likely the issue is to

reach this Court. States will simply stop wasting their

time raising it. Before the law ossifies, this Court

should grant review to “confirm that the current, …

uniform standard … is the correct one.” United States

v. Jeffries, 692 F.3d 473, 486 (6th Cir. 2012) (Sutton,

J., dubitante), abrogated by Elonis v. United States,

575 U.S. 723 (2015).

I.

The Reform Act does not empower the

Authority to regulate state national

guards or state adjutants general.

Neither the Authority nor the intervenor-union

disputes the importance of the question whether the

Reform Act empowers the Authority to issue orders to

state national guards and state adjutants general. Instead, they insist the Sixth Circuit decided the case

correctly. In fact, the Sixth Circuit erred. But more

importantly, the question is at least close. And this

Court, not the courts of appeals, should have the last

word on the answer to that question.

4

1. The Authority concedes the Reform Act gives it

power only over federal agencies. US Br.2. It thus

concedes that it lacks authority to regulate the Ohio

National Guard unless the Guard is a federal agency.

One might think those concessions would lead to a

confession of error.

But the Authority persists. Its argument rests entirely on the fact that the Authority’s order in this case

concerns a labor dispute between the Guard and “dual

status military technicians.” US Br.2. As the name

suggests, dual-status technicians “perform work in

two separate capacities.” Babcock v. Kijakazi, 142 S.

Ct. 641, 644 (2022). “First, they work full time as technicians in a civilian capacity.” Id. “Second, they participate as National Guard members in part-time

drills, training, and (sometimes) active-duty deployment.” Id. Technicians are federal employees. 32

U.S.C. §709(e). But federal law gives state adjutants

general the power to hire these technicians. And technicians perform work in state national guards while

remaining, for statutory purposes, federal employees.

10 U.S.C. §10216(a)(1)(A); 32 U.S.C. §709(b) & (d).

The Authority claims that the Ohio National

Guard acts as a “representative” or “agent” of a federal

agency—namely, the Department of Defense—when

it deals with technicians. Therefore, it reasons, the

Authority has the power to regulate the Guard’s labor

practices. See, e.g., US Br.4, 10; see also, e.g., Interv.

Br.14–16. The problem with this argument is that the

conclusion does not follow from the premises. The

Guard can serve as the representative of the federal

agency only because it is not the federal agency. If it

were, it would not need to hire technicians on the federal government’s behalf—it would be the federal government and would do the hiring directly. Because

5

the Guard is not a federal agency, and because the Reform Act empowers the Authority to issue orders only

to federal agencies, the Authority lacked the power to

issue the order at issue in this case.

This principal-agent arrangement is commonplace. In many contexts, an actor may represent a

government agency without being the government.

For example, a private prison guard represents the

State in the sense of having the power to restrain the

liberty of incarcerated convicts. But that same guard

does not become the government in the sense of enjoying the same qualified immunity as a guard the State

employs directly. See Richardson v. McKnight, 521

U.S. 399, 401 (1997). Take another example. A federal contractor may represent the government as its

agent, but the contractor is not the government itself.

And as a result, the contractor does not enjoy the same

“embracive immunity” as the government. CampbellEwald Co. v. Gomez, 577 U.S. 153, 166 (2016). General agency law aligns with these cases. That is why

an entire Restatement details the relationship between agent and principal—the two roles are not one

and the same. See Restatement (Third) of Agency

(2006).

Along the same lines, federal law allows the federal government to lend its employees to state and local governments. See generally Intergovernmental

Personnel Act of 1970, Pub. L. 91–648, 84 Stat. 1920,

5 U.S.C. §§3371–3376. Under that law, when a federal employee is loaned to another government, the

federal government continues to pay the employee’s

salary. “But in all other respects, the individual is

subject to the direction and control of the organization

to which he is providing services.” Camden v. Maryland, 910 F. Supp. 1115, 1116 n.1 (D. Md. 1996). The

6

loaned employee is “de facto an employee” of the borrowing entity. Id. In a similar way, although technicians are formally federal employees, the Technicians

Act, gave state adjutants general “the statutory

function of employing [these] Federal employees.” S.

Rep. No. 90-1446, at 15 (1968); see also National

Guard Technicians Act, Pub. L. No. 90-486, 82 Stat.

755, 32 U.S.C. §709. As the Intergovernmental Personnel Act illustrates, employing federal employees

does not make the employer a federal agency. That

goes double for employing technicians, who are only

“nominal federal employees for a very limited

purpose.” Am. Fed’n of Gov’t Emps., Local 2953 v. Fed.

Labor Relations Auth., 730 F.2d 1534, 1537–38 (D.C.

Cir. 1984).

In sum, the Ohio National Guard is not a federal

agency, even if it sometimes represents one or acts as

its agent. The Reform Act empowers the Authority to

issue orders only to federal agencies. It follows, as

night the day, that the Reform Act gives the Authority

no power to issue orders to the Guard.

2. The Authority responds that this view of technician employment “sidelines” this Court’s recent

Babcock decision. US Br.11. Not so. Babcock did not

address anything relevant to the question whether the

Ohio National Guard is a federal agency. Instead, it

held that pension payments related to work that technicians performed in their “civilian” roles did not qualify, under the Social Security Act, as “payment[s]

based wholly on service as a member of a uniformed

service.” 142 S. Ct. at 644 (quoting 42 U.S.C.

§415(a)(7)(A)(III)). True, Babcock recognizes that

technicians are federal employees. But the Guard

does not argue otherwise; this case presents the

7

question whether the Guard is a federal agency (it is

not), not whether technicians are federal employees.

The Authority also accuses the Guard of overlooking two provisions of the Technicians Act—32 U.S.C.

§709(d) and (e)—that it says bear on the question presented. In fact, neither is relevant. Those provisions

explain that state adjutants generals employ technicians under regulations set by the Army or the Air

Force. 32 U.S.C. §709(a), (e). But they do not say that

state adjutants general are the Army, the Air Force,

the Department of Defense, or any other federal

agency. In any event, the Guard has never disputed

that adjutants general must comply with federal laws

regarding dual-status technicians. Indeed, the Guard

expressly recognized that the Army and Air Force can

withhold federal funding to state national guards that

do not follow binding laws and regulations. Pet.17.

None of that, however, has any bearing on the only

question that matters here, which is whether state national guards and state adjutants general are federal

agencies for purposes of the Reform Act.

Finally, the Authority’s response to the tension between the decision below and Federal Circuit cases

does nothing to undermine the case for certiorari. Recall that federal law empowers the Merit Systems Protection Board to “order any Federal agency or employee to comply with” its decisions. Pet.30 (quoting 5

U.S.C. §1204(a)(2)). The Federal Circuit cases in

question hold that the Board lacks the power to adjudicate disputes between technicians and state adjutants general or state national guards, since neither

adjutants general nor state national guards are federal agencies. Singleton v. Merit Systems Protection

Board, 244 F.3d 1331, 1336–37 (Fed. Cir. 2001); DiManni v. R.I. Army Nat’l Guard, 62 F. App’x 937, 942

8

(Fed. Cir. 2003). The Authority responds by noting

that Congress recently enacted a law giving the Board

the power to adjudicate some of these disputes. US

Br.16 (citing 32 U.S.C. §709(f)(5)); accord Interv.

Br.21–24. True enough. But while the amendment

changes the result in some cases involving technicians, it does not call into question the Federal Circuit’s conclusion that neither state adjutants general

nor state national guards qualify as federal agencies

in their dealings with technicians. That reasoning,

which the newly enacted law does not upset, conflicts

with the Sixth Circuit’s reasoning below.

*

*

*

An agency “cannot operate independently of the

statute that authorize[s]” it to act. Fed. Election

Comm’n v. Cruz, 142 S. Ct. 1638, 1649 (2022) (internal

quotation marks omitted). The Authority is acting in

contravention of this principle. The Court should

grant certiorari and reverse.

II.

The Authority’s interpretation of the

Reform Act raises constitutional doubts

under the second Militia Clause.

The foregoing shows that the Ohio National Guard

ought to prevail under the plain text of the Reform

Act. If the Court agrees, it need not address the second question presented, which asks whether the Reform Act is unconstitutional if interpreted to allow the

Authority to issue orders to the Guard. Nonetheless,

the Court could consider the question. It could do so

when applying the constitutional-doubt canon to the

first question presented. Alternatively, it could consider the Reform Act’s constitutionality if it agrees

with the Authority’s interpretation. See Pet.20–24. In

sum, while the first question presented is the focus of

9

this suit and independently worthy of the Court’s review, there is no barrier to this Court’s granting the

second question presented if it wishes to do so.

The Authority does not disagree, though it claims

the Guard’s constitutional arguments are meritless.

US Br.12–16. To the Authority’s eyes, the constitutional issue evaporates so long as the technicians’ national-guard and civilian roles are viewed in isolation.

US Br.14. It notes that, “[w]hen performing duties in

his technician role, a dual status technician works as

a federal civilian employee; he does not work as a

member of a state National Guard or militia.” US

Br.12. And it stresses that technicians have collective-bargaining rights only with respect to their technician roles; “federal law bars dual status technicians

from bargaining over the conditions of their separate

National Guard militia service.” Id. In light of all

this, the Authority argues, the Reform Act leaves undisturbed the States’ constitutional authority to govern their militias. US Br.14.

The Authority misunderstands the constitutional

problem. While Congress has the power to confer labor-relations rights on technicians, it has no power to

enforce those rights through orders issued to state militias and state adjutants general. Put differently, the

Ohio National Guard does not bear the burden of identifying a constitutional provision the Reform Act

would violate if interpreted in the manner the Authority suggests. Instead, the Authority must identify

some constitutional provision empowering Congress

to enact such a law. See U.S. Const. amends. IX, X.

The second Militia Clause is the best candidate. But

it empowers Congress only to “provide for organizing,

arming, and disciplining, the Militia, and for governing such Part of them as may be employed in the

10

Service of the United States.” U.S. Const. art. I, §8, cl.

16 (emphasis added). The States argued, and the Authority does not contest, that “employed in the Service

of the United States,” means “called into active service

for the country.” Pet.23. The trouble for the Authority

is that, on its reading, the Reform Act governs labor

practices even with respect to technicians who are not

called into active service. As a result, this Clause cannot justify the Reform Act if the Act is interpreted in

the way the Authority suggests.

What other clause might allow Congress to enact a

law doing what the Authority understands the Reform

Act to do? The Authority does not point to any.

The intervenor-union makes one argument that

the Authority does not. Its argument rests on two provisions in the Technicians Act. See 32 U.S.C. §709(a)

& (d); Interv. Br.21. Those provisions require state

national guards to follow Army or Air Force regulations when they employ technicians. If state national

guards fail to follow these regulations, the federal government can withdraw federal recognition and withhold federal funds. 10 U.S.C. §10503(8); 32 U.S.C.

§108; Pet.8–9. The Ohio National Guard did not challenge the two provisions in question. And the intervenor-union says the Guard thereby implicitly conceded

that the Army and the Air Force can regulate the

Guard. See Interv. Br.21.

This argument, once again, misunderstands the

problem. The Ohio National Guard does not question

the federal government’s power to influence the operation of state militias through the granting and withholding of benefits. The constitutional question arises

only because the Reform Act, on the Sixth Circuit’s

reading, empowers the Authority to issue direct

11

orders to state entities and state officials. As this

Court has long recognized, there is a constitutionally

significant difference between encouraging the States

to adopt a policy and ordering them to do so. See New

York v. United States, 505 U.S. 144, 168 (1992). To

prevail, the Authority or the intervenor-union must

identify a provision empowering them to regulate directly the labor relations of state militias. They have

yet to do so.

CONCLUSION

The Court should grant the petition for a writ of

certiorari and reverse.

Respectfully submitted,

DAVE YOST

Ohio Attorney General

BENJAMIN M. FLOWERS*

Solicitor General

*Counsel of Record

MICHAEL J. HENDERSHOT

Chief Deputy Solicitor General

30 East Broad St., 17th Floor

Columbus, Ohio 43215

614-466-8980

bflowers@ohioago.gov

Counsel for Petitioners

JULY 2022