Amicus Curiae 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 DEPARTMENT, et al.,

v.

Petitioners,

FEDERAL LABOR RELATIONS AUTHORITY, et al.,

Respondents.

————

On Writ of Certiorari to the

United States Court of Appeals

for the Sixth Circuit

————

AMICUS CURIAE BRIEF OF

AMERICANS FOR FAIR TREATMENT

IN SUPPORT OF PETITIONERS

————

DAVID R. DOREY

Counsel of Record

TESSA E. SHURR

THE FAIRNESS CENTER

500 N. Third Street

Suite 600B

Harrisburg, PA 17101

(844) 293-1001

drdorey@fairnesscenter.org

Counsel for Amicus Curiae

Americans for Fair Treatment

November 16, 2022

WILSON-EPES PRINTING CO., INC. – (202) 789-0096 – WASHINGTON, D.C. 20002

TABLE OF CONTENTS

Page

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

ii

INTEREST OF AMICUS CURIAE .....................

1

SUMMARY OF ARGUMENT .............................

2

ARGUMENT ........................................................

3

I. The Ohio Adjutant General Is Not a

Federal Agency and Classifying Him as

Such Would Have Expansive Downstream Consequences ...............................

3

II. Allowing FLRA’s Decision to Stand

Would Suborn Serious First Amendment

Violations ...................................................

7

CONCLUSION ....................................................

12

(i)

ii

TABLE OF AUTHORITIES

CASES

Page(s)

Bostock v. Clayton Cnty., Ga.,

140 S. Ct. 1731 (2020) ...............................

4

Clay v. Greendale Sch. Dist.,

__ F. Supp. 3d __, 2022 WL 1443075

(E.D. Wis. May 6, 2022) ............................

11

Debont v. City of Poway,

No. 98CV0502-K, 1998 WL 415844

(S.D. Cal. April 14, 1998) ..........................

7

Duro v. Reina,

495 U.S. 676 (1990) ......................................

6

Erznoznik v. City of Jacksonville,

422 U.S. 205 (1975) ...................................

11

IRS v. FLRA,

494 U.S. 922 (1990) ...................................

4

Janus v. AFSCME, Council 31,

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

7

Lipscomb v. FLRA,

333 F.3d 611 (CA5 2003) ..........................

4

McClendon v. Long,

22 F.4th 1330 (CA11 2022) .......................

10

Pac. Gas & Elec. Co. v. Pub. Utils.

Comm’n,

475 U.S. 1 (1986) .......................................

7

Riley v. Nat’l Fed’n Blind, Inc.,

487 U.S. 781 (1988) ...................................

10

Roberts v. U.S. Jaycees,

468 U.S. 609 (1984) ...................................

9

iii

TABLE OF AUTHORITIES—Continued

Page(s)

Rowan v. U.S. Post Off. Dep’t,

397 U.S. 728 (1970) ...................................

11

U.S. Dep’t Treasury v. FLRA,

43 F.3d 682 (CADC 1994) .........................

4

W. Va. Bd. Educ. v. Barnette,

319 U.S. 624 (1943) ...................................

10

White Mountain Apache Tribe v. Bracker,

448 U.S. 136 (1980) ...................................

6

CONSTITUTION

U.S. Const. amend. I ...................................passim

STATUTES AND REGULATIONS

5 U.S.C. § 101 ...............................................

5

5 U.S.C. §§ 3371–75 .....................................

5

§ 3371(4)(C) ...............................................

5

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

8

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

3

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

2

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

10

5 U.S.C. § 7111(a) .........................................

6

5 U.S.C. § 7115(a) .........................................

9

5 U.S.C. § 7116(a)(1).....................................

6

5 U.S.C. § 7116(a)(2).....................................

6

5 U.S.C. § 7116(a)(5).....................................

6

5 U.S.C. § 7116(a)(8).....................................

6

iv

TABLE OF AUTHORITIES—Continued

Page(s)

32 U.S.C. § 325(a) .............................................

9

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

5

5 C.F.R. §§ 334.101–08 .................................

5

§ 334.103 ...................................................

5

§ 334.104(a) ...............................................

6

§ 334.106(a) ...............................................

5

OTHER AUTHORITIES

Collective Bargaining Agreement Between

the Adjutant General of Ohio and the

American Federation of Government

Employees, Local 3970: February 2011–

January 2014, https://www.ong.ohio.gov/

ohio_partnership/op-resources/Collective

BargainingAgreementFeb11toJan14.pdf

[https://perma.cc/JE2E-VLDT]................. 5, 7, 8–9

Erich B. Smith, National Guard Technician

Program Turns 50 (Jan. 28, 2019),

https://www.nationalguard.mil/News/Ar

ticle/1741764/national-guard-technicianprogram-turns-50/ [https://perma.cc/5LKSY7CF] ........................................................

2

OPM, Policy, Data, Oversight, https://www.

opm.gov/policy-data-oversight/hiring-inf

ormation/intergovernment-personnel-ac

t/#url=Provisions [https://perma.cc/L2XH9ZVQ] (last visited Nov. 15, 2022)................

6

INTEREST OF AMICUS CURIAE1

Americans for Fair Treatment (“AFFT”) is a national

non-profit organization that offers a free membership

program to public employees and helps them to understand and exercise their First Amendment rights in the

context of a unionized workplace. AFFT serves public

employees in the State of Ohio; they and a host of others

nationwide would be affected if the decision below of

the Federal Labor Relations Authority (“FLRA”) were

permitted to stand.

FLRA’s decision broadly holds that if a federal

employee works for someone, that someone must be a

federal agency. The import is that collective bargaining

rights then attach to that employment relationship—

and FLRA can give the employer orders. That conclusion is incorrect and worse lacks any limiting principle.

Without one, it means FLRA can (and probably will)

expand its once-limited jurisdiction to sweep in a host

of unsuspecting state, local, tribal, and territorial

(“SLTT”) officials and others who happen to employ

federal employees in the public interest.

Moreover, an expanded reach for FLRA would have

tremendous First Amendment implications here and

across the country. If FLRA’s decision stands, Ohio

National Guard technicians will be required to subsidize a union and in practice remain union members for

potentially a year or longer. And the Ohio Adjutant

General will be compelled to engage in forced speech

that his captive audience technicians must view.

1

No counsel for any party authored this brief in whole or in

part and no entity or person, aside from amicus curiae and its

counsel, made any monetary contribution toward the preparation

or submission of this brief. Counsel of record for all parties

consented to this filing.

2

SUMMARY OF ARGUMENT

FLRA is an independent federal agency responsible

for expounding and enforcing collective bargaining

rights within other federal agencies.2 FLRA purported

to substantially expand the scope of its jurisdiction by

deeming the Ohio Adjutant General—an Ohio state

official who is neither an officer of nor employed by the

United States—to himself be a federal agency. If the

conclusion sounds fanciful, that’s because it is.

FLRA’s quest to expand its jurisdiction lacks boundaries. FLRA’s basic thesis is if someone or something

employs a federal employee and is somewhat federally

regulated then that person or thing is ipso facto a

federal agency. The manifest problem beyond the fiftyfour clearly affected national guards is that, under the

Intergovernmental Personnel Act (“IPA”), a panoply of

SLTT governments (including Indian tribes), colleges,

and non-profits employ federal employees. FLRA’s

determination means these non-federal entities employing federal employees on multi-year or even indefinite

assignments must also engage in collective bargaining

and take orders from FLRA. “Commandeered” in this

context is probably an understatement.

Permitting the expansion of FLRA’s jurisdiction

inexorably means that the First Amendment rights of

untold thousands3 will be violated. FLRA’s order here

says that the “mandatory” provisions of the expired

2

FLRA is itself exempt from collective bargaining. 5 U.S.C.

§ 7103(a)(3)(F).

3

In 2019 there were approximately 60,000 technicians employed in a national guard. Erich B. Smith, National Guard

Technician Program Turns 50 (Jan. 28, 2019), https://www.

nationalguard.mil/News/Article/1741764/national-guard-technic

ian-program-turns-50/ [https://perma.cc/5LKS-Y7CF].

3

collective bargaining agreement (“CBA”) are to be

resurrected. One CBA article says that any technician

who signs up to be a union member is compelled to

have union dues forcibly deducted from his paychecks

for at least one year, and under current practice is

forced to remain a union member during that time.

It also provides for a brief yearly window period in

which member technicians are permitted to stop dues

deductions after their first year of membership, and

also in practice to resign union membership. Any

attempt to disassociate from and stop subsidizing the

union outside of those narrow confines is not allowed.

FLRA further compelled the Ohio Adjutant General, a

state employee not subject to its jurisdiction, to

personally engage in the speech of saying that FLRA’s

theory of the case was correct, and to deliver that

speech via email to much of the Ohio National Guard.

This is regrettably par for the course in the world of

public-sector unions.

ARGUMENT

I. The Ohio Adjutant General Is Not a

Federal Agency and Classifying Him as

Such Would Have Expansive Downstream

Consequences

FLRA’s decision below holds that Ohio’s Adjutant

General is a federal “agency” within the meaning

of the Civil Service Reform Act of 1978.4 5 U.S.C.

§ 7103(a)(3). That is absurd.5 Not only is the term

4

FLRA further held that the Ohio National Guard and the

Ohio Adjutant General’s Department are also federal agencies

because they “operate under the authority and direction of the

Adjutant General[.]” Pet. App. 117a–18a.

5

This Court and others have not hesitated to intervene when

FLRA exceeds its jurisdiction or otherwise patently misconstrues

4

“agency” carefully defined there and by reference to

other parts of Title 5 to not include Major General

Harris, but if there were any ambiguity the ordinary

meaning of federal “agency” certainly does not include

a living person. Bostock v. Clayton Cnty., Ga.,

140 S. Ct. 1731, 1738 (2020) (“This Court normally

interprets a statute in accord with the ordinary public

meaning of its terms at the time of its enactment.”).

The Fifth Circuit reached a contrary conclusion in

2003 but candidly observed that getting there required

it to be totally unfair to the Reform Act’s plain text:

“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

search will be disappointing.” Lipscomb v. FLRA, 333

F.3d 611, 618 (CA5 2003).

Indeed, to the extent there could be any actual

federal agency involved here and within FLRA’s

jurisdiction it would have to be the Department of

the Reform Act. See, e.g., IRS v. FLRA, 494 U.S. 922, 928 (1990)

(“The FLRA’s position is flatly contradicted by the language of

§ 7106(a)’s command that ‘nothing in this chapter’—i.e., nothing

in the entire Act—shall affect the authority of agency officials

to make contracting-out determinations in accordance with

applicable laws.”); U.S. Dep’t Treasury v. FLRA, 43 F.3d 682,

689–90 (CADC 1994) (“The very preclusion of judicial review

suggests powerfully that Congress could not have contemplated,

let alone intended, that all or any part of American law would be

definitively interpreted by the FLRA on review of one or a series

of cases originally put to arbitration. To give any administrative

tribunal such final authority to construe any or all statutes or

treaties of the United States would be a staggering delegation,

which surely would have provoked considerable congressional

debate. That Congress would entrust such sweeping authority to

a minor three-member commission with quite restricted expertise

is, when one ponders the matter, utterly inconceivable.”).

5

Defense. 5 U.S.C. § 101; and see 32 U.S.C. § 709(e)

(technicians are “employee[s] of the Department of the

Army or the Department of the Air Force”). But that

too would make little sense because the expired CBA

that FLRA is attempting to reanimate is not signed by

or even on behalf of DoD; it is signed by a former Ohio

Adjutant General and a former president of AFGE

Local 3970. CBA at 20.6 And in any event FLRA didn’t

give DoD an order. See Pet. App. 17a–25a.

A pernicious problem with FLRA’s decision is that it

cannot be limited to national guards by its reasoning

or facts—nor is there any reason to think FLRA would

independently try to so limit it. FLRA decided that

Major General Harris is a federal agency because

he employs some federal employees and is subject to

certain DoD regulations. Pet. App. 113a, 117a–18a.

But just like national guards, the IPA provides for

federal employees to work for SLTT governments and

even higher education institutions and non-profits.

5 U.S.C. §§ 3371–75; see also id. at § 3371(4)(C);

5 C.F.R. § 334.106(a). So too the Office of Personnel

Management (“OPM”) regulates how SLTT governments and others must act when employing federal

workers under the IPA. 5 C.F.R. §§ 334.101–08; see e.g.,

id. at § 334.103 (setting forth what SLTT governments

and “other organizations” must submit to become

“certified” to participate); id. at § 334.106(a) (“written

agreement recording the obligations and responsibilities of the parties” required before assignment begins).

Under the OPM regulations, a typical assignment is

6

Collective Bargaining Agreement Between the Adjutant

General of Ohio and the American Federation of Government

Employees, Local 3970: February 2011–January 2014, https://

www.ong.ohio.gov/ohio_partnership/op-resources/CollectiveBarg

ainingAgreementFeb11toJan14.pdf [https://perma.cc/JE2E-VLDT]

6

for up to two years and can then be extended for two

more. Id. at § 334.104(a). That is plenty of time

to establish a collective bargaining agreement. And

in the case of Indian tribes, OPM says that federal

employees may be assigned for “any length of time”

so long as it would benefit the federal government and

the Indian tribe.7

The follow-on consequence of FLRA’s decision is

it can transfigure all manner of states, localities,

territories, Indian tribes, universities, and non-profits

nationwide into federal agencies and give them orders

to engage in collective bargaining8 as it sees fit.

That’s a significant problem generally but is acutely

concerning for Indian tribes that can have practically

permanent federal employees on staff. See, e.g., White

Mountain Apache Tribe v. Bracker, 448 U.S. 136, 143

(1980) (“Even so, traditional notions of Indian selfgovernment are so deeply engrained in our jurisprudence that they have provided an important backdrop,

against which vague or ambiguous federal enactments

must always be measured.”) (cleaned up); Duro v.

Reina, 495 U.S. 676, 693 (1990) (“As full citizens, Indians

share in the territorial and political sovereignty of the

United States.”). And for all concerned it raises the specter

of weighty First Amendment violations discussed below.

7

OPM, Policy, Data, Oversight, https://www.opm.gov/policydata-oversight/hiring-information/intergovernment-personnelact/#url=Provisions [https://perma.cc/L2XH-9ZVQ] (last visited Nov.

15, 2022) (emphasis added).

8

Collective bargaining is mandatory under the Reform Act. See

5 U.S.C. § 7111(a); 5 U.S.C. § 7116(a)(1), (2), (5), (8).

7

II. Allowing FLRA’s Decision to Stand Would

Suborn Serious First Amendment Violations

1. The First Amendment guarantees public-sector

employees the right to choose whether (or not) to associate with and to financially support a labor union.

See Janus v. AFSCME, Council 31, 138 S. Ct. 2448,

2478 (2018) (“public-sector agency-shop arrangements

violate the First Amendment . . . .”). That right includes

the ability to change one’s mind and to dissociate from

a union. See id. at 2463; see also Pac. Gas & Elec. Co.

v. Pub. Utils. Comm’n, 475 U.S. 1, 12 (1986) (“forced

associations that burden protected speech are impermissible”); Debont v. City of Poway, No. 98CV0502-K,

1998 WL 415844, at *6 (S.D. Cal. April 14, 1998) (“[A]t

the heart of the First Amendment . . . is the freedom

of expression, the freedom of speech, the freedom to

associate, the freedom not to associate, and all of

which inherently also involve the freedom to

change one’s mind.”) (emphasis added).

The expired CBA here contains an article that,

by its terms and typical practice, violates the First

Amendment in two distinct ways by severely constraining technicians’ ability to disassociate from and

stop subsidizing AFGE. CBA, art. XVIII. FLRA has

deemed this article “mandatory,” which means it

“must be maintained” even though the CBA is no

more. Pet. App. 131a–32a, 136a. If this Court allows

FLRA’s decision to stand, it will accordingly be

breathing new life into that CBA—agreed to more

than a decade ago, signed by officials who no longer

occupy their offices, and made with an express enddate. And the double-offending “mandatory” article

will reemerge to violate Ohio Guard technicians’

constitutional rights.

8

The article first burdens technicians’ freedom to

choose whether to continue associating with and supporting the union by forcing them, for a period of at

least one year after agreeing to be AFGE members, to

financially support AFGE via wage garnishments and,

in practice, to remain union members. CBA, art. XVIII

(“Union members may voluntarily revoke dues withholding after a one-year period.”). The forced membership

issue arises because unions and agencies alike treat

OPM’s Standard Form 1188 as the sole method by

which union members can both stop dues deductions

and resign from union membership.9 See Pet. App.

21a (requiring Major General Harris to “[r]einstate to

dues withholding status all technicians removed from

dues withholding since September 16, 2016, who did

not fill out dues revocation forms in the anniversary

month of their allotment” without reference to whether

the technicians independently attempted to resign

from the union). As applied by current practice, for

example, if the CBA is resurrected by this Court, a

technician who, say, joins AFGE on June 25, 2024, will

have to wait until June 25, 2025, before he may

exercise his First Amendment right to disassociate

from the union and stop financially supporting it.10

9

Amicus curiae does not believe this practice is permissible.

See, e.g., 5 U.S.C. § 7102 (“Each employee shall have the right to

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

such activity . . . .”). The SF-1188 is by its terms how federal

employees may stop agencies from deducting union dues from

their paychecks; it says nothing about union membership. See

Pet. App. 5a (“If employees want to cancel dues allotments, they

must submit a . . . Standard Form 1188—cancellation of payroll

deductions . . . .”).

10

Presumably this CBA provision is derived from 5 U.S.C.

§ 7115(a), which likewise violates the First Amendment by

compelling federal employees to have dues deducted from their

9

The article goes on to further encumber technicians’

association rights by imposing what is often called a

“window period” that permits cessation of dues deduction and currently, in practice, resignation from the

union, only during a brief period once a year. CBA, art.

XVIII (“[U]nion members may choose to revoke withholding for dues annually only during their membership

anniversary month.”). To comply with this, technicians must track when they became union members

and submit their resignation requests consonantly.

And missing the “window” by just a day—perhaps by

being out sick or being “relieved from duty” having

been called up into federal service, 32 U.S.C. § 325(a)—

means having to wait another almost twelve months

to resign11 and being forced to pay hundreds of dollars.12

If FLRA’s order stands, it fully intends to make the

Adjutant General comply. See Pet. App. 21a.

paychecks for the union’s benefit for at least one year after

joining, and as applied to remain union members. Compare 5

U.S.C. § 7115(a) (“[A]ny such [dues deduction] assignment may

not be revoked for a period of 1 year.”), with Roberts v. U.S.

Jaycees, 468 U.S. 609, 623 (1984) (“Freedom of association

therefore plainly presupposes a freedom not to associate.”).

11

Let us imagine hypothetically a technician who chooses to

join AFGE on June 25, 2024. Per the CBA article, he may not

resign his union membership and stop dues deductions until June

25, 2025. But the “window period” also interacts with that oneyear resignation prohibition and prevents him from resigning

outside the month of June. That means he would be permitted

to exercise his First Amendment rights only during the six-day

span of June 25–30, 2025, two days of which are weekend days.

If he missed that window he would be forced into unwilling

membership and subsidy of AFGE for yet another twelve

months—until at least June 1, 2026.

12

A typical amount of union dues might be $25 per biweekly

paycheck. Over a year, that adds to $650.

10

2. FLRA’s decision further violates the First Amendment by compelling speech. The First Amendment

protects “the decision of both what to say and what not

to say.” Riley v. Nat’l Fed’n Blind, Inc., 487 U.S. 781,

797 (1988) (emphasis added). But FLRA ordered Major

General Harris to personally sign and post “for sixty

consecutive days” at Guard facilities “statewide” a

“notice.” Pet App. 20a. Because FLRA lacks jurisdiction over Major General Harris, see supra pp. 3–4, and

he accordingly has no official capacity vis-à-vis FLRA,

this is compulsory speech in his personal capacity.13

The required “notice” not only discusses in detail

FLRA’s decision but it’s littered with disputed and

incorrect legal conclusions—and worse requires Major

General Harris to say those conclusions are correct.

See Pet. App. 22a–25a; e.g., id. 22a–23a (“WE RECOGNIZE and will comply with the mandatory terms of

the expired collective-bargaining agreement . . . .”);

id. 22a (“The Statute gives dual-status technicians . . .

[the right to] form, join or assist any labor organization

. . . .”). The First Amendment violation is patent.

W. Va. Bd. Educ. v. Barnette, 319 U.S. 624, 642 (1943)

(“If there is any fixed star in our constitutional

constellation, it is that no official, high or petty, can

prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion or force

citizens to confess by word or act their faith therein.”).14

13

It’s worth noting that FLRA also lacks authority to give

orders to federal agency officials in their official capacities.

5 U.S.C. § 7105(g)(3). It may only give orders to agencies and

labor organizations. Id.

14

See also McClendon v. Long, 22 F.4th 1330, 1337 (CA11

2022) (the government’s use of another’s property as a “stationary

billboard” for its ideological messages is “a classic example of

compelled government speech”).

11

FLRA didn’t stop there, though. It also required

Major General Harris to communicate a copy of the

compelled personal capacity “notice” via his “email

system” to “all technicians, managers, and supervisors

in the Ohio Army and Air National Guard.” Pet. App.

20a.15 Therefore FLRA made doubly sure that no one

concerned in the Ohio National Guard could avoid

the “notice”—they cannot avert their eyes16—because

reading emails from their commanding officer is a mandatory part of their job duties. See Clay v. Greendale

Sch. Dist., __ F. Supp. 3d __, 2022 WL 1443075, at *8

(E.D. Wis. May 6, 2022) (“Because school email is

generally used for curriculum and instruction, students

must check their email accounts—they are ‘captive

audiences’ even outside of the traditional classroom.”).

“Nothing in the Constitution compels us to listen to

or view any unwanted communication, whatever its

merit; we see no basis for according the printed word

or pictures a different or more preferred status because

they are sent by mail.” Rowan v. U.S. Post Off. Dep’t,

397 U.S. 728, 737 (1970). FLRA has entirely dispensed

with this lesson and in so doing proposes to vitiate the

First Amendment rights of Major General Harris and

every single technician, manager, and supervisor in

the Ohio National Guard.

15

As to the latter two, the ALJ below described this as a

“nontraditional” remedy. Pet. App. 159a.

16

Erznoznik v. City of Jacksonville, 422 U.S. 205, 210–11

(1975) (“[T]he burden normally falls upon the viewer to avoid

further bombardment of his sensibilities simply by averting his

eyes.”).

12

CONCLUSION

Ohio’s Adjutant General is a person, not a federal

agency. FLRA lacked authority to give him an order.

Any contrary conclusion would turn the Reform Act on

its head and lead to First Amendment violations

affecting thousands of people. FLRA’s decision should

be reversed.

Respectfully submitted,

DAVID R. DOREY

Counsel of Record

TESSA E. SHURR

THE FAIRNESS CENTER

500 N. Third Street

Suite 600B

Harrisburg, PA 17101

(844) 293-1001

drdorey@fairnesscenter.org

Counsel for Amicus Curiae

Americans for Fair Treatment

November 16, 2022