# Petition for Writ of Certiorari — Cross v. Federal Labor Relations Authority

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition for Writ of Certiorari
- **Published:** January 1, 2004
- **Citation:** 541 U.S. 935

## Text

No.

IN THE

Supreme Court of the Midd tates

MAJOR GENERAL JAMES H. LIPSCOMB III, in his official
Capacities as the Adjutant General of the State of Mississippi,
of the Mississippi Militia, of the Mississippi National
Guard, and as Executive Head of the Mississippi Military
Department and the Mississippi Militia, the Mississippi
National Guard and the Mississippi Military Department,

Petitioners,
Vv.

FEDERAL LABOR RELATIONS AUTHORITY, NANCY SPEIGHT, in
her official capacity as Regional Director of the Federal Labor
Relations Authority, Atlanta Region and LINDA J. NoRWooD,
in her former official capacity as Acting Regional Director of
the Federal Labor Relations Authority, Atlanta Region,

Respondents.

Petition for a Writ of Certiorari to the
United States Court of Appeals

for the Fifth Circuit

PETITION FOR A WRIT OF CERTIORARI

November 19, 2003

E. BARNEY ROBINSON III *

JEFFREY A. WALKER

BUTLER, SNOW, O’MARA, STEVENS
& CANNADA, PLLC

Post Office Box 22567

Jackson, Mississippi 39225-2567

(601) 948-5711

PAUL ROGER GOOGE, JR.

Special Assistant Attorney General
MISSISSIPPI ATTORNEY GENERAL’S OFFICE
P.O. Box 220

Jackson, Mississippi 39205

(601) 359-3824

Counsel for Petitioners
* Counsel of Record

_ ee
WILSON-EPES PRINTING CO., INC. — (202) 789-0096 -— WASHINGTON, D.C. 20001

/52 #

QUESTIONS PRESENTED

Whether the Federal Labor Relations Authority has the
power to order state National Guards and their state Adjutants
General” to participate in federal union representation elec-
tions concerning Guard personnel.

Whether the valuable Tenth and Eleventh Amendment
rights of a state official and a state agency may be trumped by
federal statute, when Congress lacks the constitutional
authority to pierce those immunities with its Article I powers.

* Adjutants General are the senior military commanders of each state's
National Guard. They are the National Guard analogue to the Chairman
of the Joint Chiefs of Staff in the federal military. For the convenience of
the Court, a Wire Diagram reflecting the relationship of the various mili-
tary entities and persons at issue herein is included at App. J, 117a.

(i)

ii
LIST OF PARTIES

Parties to the proceedings are those listed in the caption,
to wit:

PETITIONERS:

Major General James H. Lipscomb III, in his official
Capacities as: the Adjutant General of the State of
Mississippi; of the Mississippi Militia; of the Mississippi
National Guard; and as Executive Head of the Mississippi
Military Department

The Mississippi Militia

The Mississippi National Guard

The Mississippi Military Department

RESPONDENTS:

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

Ee ta hee i RN 4. 8

TABLE OF CONTENTS

Page
QUES TIONG PRESEN 1 ED ...ccresserecesesersevcszcsscvcscessovees i
BRT GO PA TEED ecescccscesscssvecsscvssseosenccvepsovssovsvonsessnses ii
TABLE OF AUTHORITIES woceveccscccossescovevensesonsscvessseees Vv
Ce IIT cncvcvensssnsesoosesvencosenssvcensvensopsvenssssoees 2
cc aecicsinsi i
CONSTITUTIONAL AND STATUTORY
PROVISIONS INVOLVED...............sscccssssssessereeeeees 2
STATEMENT OF THE CASE .........0s.ccccsecssossssveessevenees 4
A. Proceedings and Disposition in Lower Courts .. 4
Be I ietiiertnvarensnensovnoeennonesocsensnnnensoveoousenvennnvesenees 2
REASONS FOR GRANTING THE WRIT .............064 8

I. THE FIFTH CIRCUIT'S FINDING THAT A
STATE ADJUTANT GENERAL AND
STATE NATIONAL GUARD ARE FED-
ERAL EXECUTIVE AGENCIES IS CON-
TRARY TO PERPICH AND WILL HAVE
UNINTENDED CONSEQUENCES DETRI-
MENTAL TO THE CONSTITUTIONAL
BALANCE AND NATIONAL SECURITY .... 11

II. JOINT APPLICATION OF THE TECH-
NICIANS ACT, PERPICH AND SOUTH
CAROLINA PORTS AUTHORITY PRESENTS
IMPORTANT ISSUES OF FEDERALISM
NOT YET.ADDRESSED BY THIS COURT... 19

(iii)

iV
TABLE OF CONTENTS—Continued
Page
Ill. THE FIFTH CIRCUIT'S DECISION THAT
PETITIONERS’ PUTATIVE FEDERAL
AGENCY STATUS TRUMPS_ THEIR |

TENTH AMENDMENT IMMUNITY IS
CONTRARY TO PRINT Z.....0.:sevesssvcevsssosvessessoee 22

IV. THE FIFTH CIRCUIT'S OPINION HAS
CREATED SPLITS BETWEEN THE

Se AI sacisnapickasicemnstenainenninesinansvorbibeieietncbenmantas 24
Ae eM stiisissinnschirdiivsionielidineeweinian tesiesiaieaniiabo 26
FE eserihitsinnisanndestcaninlaniniiinincimmananiniiagin la

Vv
TABLE OF AUTHORITIES

CASES Page

Atascadero State Hosp. v. Scanlon, 473 U.S. 234

CT ivcecnncstsnciissnicssersvaemeniotiacsemetienenitinsinieinas 19
Clark v. United States, 322 F.3d 1358 (Fed. Cir.

BED cxsvincsnsbciasncinionsntcaienaiinaainiiaataaiiaiantion 10, 19, 24, 25
Day v. Massachusetts Air Nat’! Guard, 167 F.3d

GIG (BE CA, FOF) aacenscsacinarerectonsibanggiaenvnvagenmneaoes 10, 25
Federal Mar. Comm'n v. South Carolina State

Ports Auth., 535 U.S. 743 (2002) .........000+ 9, 20, 21, 22
Gilbert v. United States, 165 F.3d 470 (6th Cir.

EDDD) ..cisisrsssstninetvenisiviernnnmnnmnnemaanonian 11, 26
Gregory v. Ashcroft, 501 U.S. 452 (1991)... 19, 21
Hefley v. Textron, Inc., 713 F.2d 1487 (10th Cir.

FISD ick vncinesnnacsvoinsavdvavioredaoenshuienniosonuideiatatabaiant 10, 19
Hefrich v. Pennsylvania Dept. of Military Affairs,

660 F.2d 88 (3rd Cir. 1981)... eesseesereseeeeeees 10, 25
Henry v. Textron, Inc., 577 F.2d 1163 (4th Cir.

1978), cert. denied, 439 U.S. 1047 (1978)........ 20, 25
Intrioni v. South Carolina Nat’l Guard, 828 F.

Supp. 391 (D. S.C. 1993).........ccssscscsssssesessersers 20
Jones v. New York State Div. of Military Affairs,

166 F.3d 45 (2d Cir. 1999)... cecessseeeeees 6, 10, 17, 25
Kimel v. Florida Bd. of Regents, 528 U.S. 62

(DOD nvcicsssenverierevernecnivenncectainmaimainatioenine 10, 19, 21
Knutson v. Wisconsin Air Nat’l Guard, 995 F.2d

765 (7th Cir. 1993), cert. denied, 510 U.S. 933

EDI vcereciccscisnnicieiisevocieenentenmnlentiepianiaetimeieteneetan 10, 25
Maryland ex rel. Levin v. United States, 381 U.S.

41 (1965), vacated on other grounds, 382 U.S.

199 (19GB) vecevececenssnessvreseseisensnervmenutineemnieinandete 13
Meadows v. State of Ind. 854 F.2d 1068 (7th Cir.
FOGG) vecscorcivinssocsnnceressanevnieseininesaaninnnseninannnaennes 10, 25

NeSmith v. Fulton, 615 F.2d 196 (Sth Cir. 1980)... 7, 14
Perpich v. DOD, 496 U.S. 334 (1990) .....s-sesseseees passim

vi
TABLE OF AUTHORITIES—Continued
Page

Petr v. Delaware Nat'l Guard, Case No. 94-327-

SLR, 1995 WL 579634 (D. Del. Sept. 28,

PID sscensiinisadantiiinavianvabisssiseminidihieiiadiaaalniiians 20
Printz v. United States, 521 U.S. 898 (1997)...9, 22, 23, 24
Richardson-Longmire yv. Kansas, Adjutant Gen-

eral, no. Civ.A.97-2679, 1997 WL 156168 (D.

Plt. TI BF Riketcnniacconincccaveedinncaniiaiis 20
Scott v. Univ. of Miss., 148 F.3d 493 (Sth Cir.

1998), abrogated on other grounds by Kimel v.

Florida Bd. of Regents, 528 U.S. 62 (2000)...... 19
Singleton v. Merit Systems Prot. Bd., 244 F.3d

EO0) G06, CU, BPE kienicsennanniin 10, 25
Storer Broad. Co. v. United States, 251 F.2d 268

CRIED... FINED pre sessisitenciveceesnnciieesebisiamtiaaaaaannetiis 13
United States v. Hutchings, 127 F.3d 1255 (10th

ROR: BOY Piticesvacsiacesniscmennensneeenainineen it, 15, 17, 2
Zitser v. Walsh, 352 F.Supp. 438 (D. Conn.

FFF Fr incenntiiiesnianeanivceaaseuinnemntaabeauaiaadammaiicn 13, 16

CONSTITUTIONAL PROVISIONS
Oi .cv CAOUNRE., QUUNOINE, Fe secsveisesererevacesonsenens 4, 8,9, 10, 22, 23
U.S. Const., amend. XI................ 4, 6, 8, 9, 10, 20, 21, 25
ge eS |, SEP NOREEN, 6, 13
FEDERAL STATUTES

F ites © TAI) stiseessniiesiomeniaiaiaana 25
TUBA... © TPIS encecninssonsasvevesseenns 4, 8, 12, 17, 22, 23
PRs © FF PET) “Federal recognition” merely means that a given Guardsman, in
addition to membership in his state's Guard, may also be a member of the
National Guard of the United States. See 32 U.S.C. § 301; see also Zitser
v. Walsh, 352 F.Supp. 438, 440 (D. Conn. 1972)(“One may be a member
of the National Guard of a state without receiving federal recognition, but
never the reverse’”’).

sii aaa

14

of an organization separate and distinct from the Mississippi
Guard - the National Guard of the United States, a federal
reserve component. If actually serving in the National Guard
of the United States, the Adjutant General would hold a
federal status. However, the statutory scheme and Supreme
Court precedent, make it clear that the Adjutant General’s
respective state or federal statuses are mutually exclusive.’

More particularly, when serving in the National Guard of
the United States, the Adjutant General - like all Guardsmen -
loses his state militia status and becomes a Title 10 federal
soldier. See 10 U.S.C. § 12405 (“Members of the National
Guard called into Federal service are, from the time when
they are required to respond to the call, subject to the laws
and regulations governing the Army or the Air Force, as the
case may be...”). 58a. Furthermore, Perpich held that:

Since 1933 all persons who have enlisted in a State
National Guard unit have simultaneously enlisted in the
National Guard of the United States. [BJut unless and
until ordered to active duty in the Army, they retained
their status as members of a separate State Guard unit. .
” All persons so ordered into the active military
service of the United States shall from the date of such
order stand relieved from duty in the National Guard of
their respective States, . . . and during such time shall be
subject to such laws and regulations for the government
of the Army of the United States... .” Upon being
relieved from active duty ...all individuals and units shall
thereupon revert to their National Guard status.”

Perpich, 496 U.S. at 345-46 (emphasis added)(some citations
omitted). Thus, Guardsmen “[n]ow must keep three hats in
their closets - a civilian hat, a state militia hat, and an
army hat - only one of which is worn at any particular

* To the extent that NeSmith v. Fulton, 615 F.2d 196, !98 (Sth Cir.
1980), can be read to the contrary, it has been overruled by Perpich v.
DOD, 496 U.S. 334 (1990).

15

time.” Id. at 348 (emphasis added). This is “dual” military
status, not “hybrid” status.

Just as one cannot be a little bit pregnant, the Adjutant
General cannot simultaneously be a little bit state and a little
bit federal. This is because, in the context of the Guard,
whether one is in a state or federal status “[d]Jepends solely on
whether command of the Guardsman has been taken away
from a state’s governor by one authorized to do so by
Congress.” United States v. Hutchings, 127 F.3d 1255, 1258-
59 (10th Cir. 1997) (emphasis added). The Adjutant General
is either commanded by the Governor or the President, but
never both.

Thus, while the Adjutant General certainly holds “dual”
statuses, it is simply mistaken - and contrary to Perpich - to
say he has a “hybrid” status—as found by the Fifth Circuit.
Compare 13a (“[t]he hybrid character of the AG includes a
federal component . . .) with Perpich, 496 U.S. at 348
(Guardsmen “[n]ow must keep three hats in their closets - a
civilian hat, a state militia hat, and an army hat - only one of f
which is worn at any particular time”) and id. at 349
(emphasis added) (“[t]he state affiliation is suspended in
favor of an entirely federal affiliation during the period of
active duty”). This strict and mutually exclusive duality is
important, as the state status of nonfederalized Guardsmen
is a “[c]onstitutional aspect” of their service. Perpich, 496 ;
U.S. at 349.

* Respondents offered no evidence whatsoever, and the Fifth Circuit
did not purport to rely upon any, suggesting that the Adjutant General was
serving in the National Guard of the United States during any of the time
periods at issue in this Action. See 10 U.S.C. § 12401 (National Guard of
the United States members “[a]re not in active Federal service except
when ordered thereto under law”). 58a. In fact, the Adjutant General did
not even hold federal recognition (National Guard of the United States
membership) during part of the time at issue. 1 16a.

;

16

Likewise, the Mississippi Guard is not a federal Executive
agency or activity. Unlike the National Guard of the United
States, the Mississippi Guard is not (and never is) a federal
reserve component under 10 U.S.C. § 10101.° 57a. Rather,
under 10 U.S.C. § 101(c)(2), the Mississippi Guard is one of
the “[o]rganized militia of the several States... .” Jd. 54a.
Admittedly, if the President uses his call power to impress the
Mississippi Guard, it becomes part of the Army itself, under
10 U.S.C. § 3062(c), as the Army can include, “[t]he Army
National Guard® while in the service of the United States... .”
Id. (emphasis added). 60a. However, it is undisputed that the
Mississippi Guard - the entity - was not impressed’ during
any of the time period at issue. In fact, during any time

*Because federal law does not require a Guardsman to keep his federal
recognition in order to remain in a state's Guard, Zitser v. Walsh, 352 F.
Supp. 438, 440 (D. Conn. 1972), the National Guard of the United States
can never contain a state's Guard (the entity), because such would
subsume non-federally recognized Guardsmen into the National Guard of
the United States, in violation of 10 U.S.C. § 10105. In that regard, Miss.
Code Ann. § 33-3-7 does not even require the Adjutant General to hold
federal recognition, so long as he is “[eJligible to receive federal
recognition.” Mississippi has had periods of time when the then Adjutant
General did not hold federal recognition. 116a. As a result, during those
time periods (which included some of the time of Respondents’ Labor
Management Act proceeding), the Adjutant General could not have been a
member of the National Guard of the United States as a matter of law.

° The federally recognized parts of the Mississippi Guard are part of
the Army National Guard under 10 U.S.C. § 101(c)(2). 54a. However,
the Army National Guard, like the Mississippi Guard, is not a federal
reserve component under 10 U.S.C. § 10101. 57a.

’ Certainly, significant numbers of Mississippi Guardsmen have been
mobilized to federal active duty in recent years through their separate
membership in the National Guard of the United States. However, the
Mississippi Guard itself has not been impressed by Presidential call
during the time period at issue. See Perpich, 496 U.S. at 350 n.21
(explaining the difference between Presidential impression of a state's
Guard itself versus activation of individual National Guard of the United
States members).

17

period when the Mississippi Guard assumes a federal status—
it no longer has any Military Technicians. This is because
upon impression of the Mississippi Guard, its Military
Technicians lose their Technician status and become Title 10
soldiers and airmen, as the case may be.” 58a.

In other words, the respective States’ Militias, (parts of
which comprise the term “Army National Guard”), are sep-
arate legal entities and are never a part of the National Guard
of the United States. Those state entities only become part of
the “Army” when “[iJn the service of the United States. . . ,”
10 U.S.C. § 3062(c)(1), when impressed by call under federal
Statutory authority. 60a. E.g., 10 U.S.C. §§ 331-333 &
12406 (authorizing executive officials to call forth the militia
of the States). 55a, 58a.

Thus, when in a state status, the Mississippi Guard is a
State entity, under the command of the Governor. E.g., Jones
v. New York State Div. of Military Affairs, 166 F.3d 45, 49
(2d Cir. 1999) (New York Guard is state entity). It only
obtains a federal status when and if converted into part of the
Army when impressed by Presidential call. 10 U.S.C.
§ 3062(c)(1); 10 U.S.C. §§ 331-333 & 12406; Hutchings, 127
F.3d at 1258-59. 55a, 58a. Absent such an impression, the
Mississippi Guard is never a “federal” Executive agency
under 5 U.S.C. § 7103(a)(3) or an “activity” of a federal
Executive agency under 5 CFR § 2421.4 and cannot be a
subjected to federal labor laws. 52a, 70a.

Because the Fifth Circuit found to the contrary, its decision
threatens to warp the carefully crafted Congressional and
constitutional scheme delineating the respective spheres of
State versus federal military power. As evidenced by

* See 10 U.S.C. § 12405 (“Members of the National Guard called into
Federal service are, from the time when they are required to respond to the
call, subject to the laws and regulations governing the Army or the Air
Force, as the case may be. . .”). 58a.

18

Perpich, it is very important - as a matter of Federalism, as
well as the interworkings of the Guard and the Active
Components - that the distinctions of authority and juris-
diction between the federal military and each state’s militia
be maintained. Additionally, if left undisturbed, the Fifth
Circuit’s decision will harm national security.

Soberingly, this Nation is at war. Unlike any other war in
recent history, the War on Terrorism is being fought not only
overseas, but also - and tragically, as evidenced by the events
of September 11 - on our own soil. Each state’s National
Guard is playing a critical role in this War.

Under the Posse Comitatus Act, it has long been accepted
that the Guard - because it is not a part of the federal
military - is not prohibited from engaging in domestic opera-
tions—including counterterrorism and law enforcement
operations. For example, in the post-911 period, Guardsmen
were detailed as security at airports nationwide. These
Guardsmen served in a state status - as members of their
respective states’ Guards - so as not to run afoul of the Posse
Comitatus Act. See (MS Exec. Order no. 850 (Sept. 28,
2001)), App. E, 48a.

However, the Fifth Circuit’s holding that the Mississippi
Guard is a federal agency and part of the National Guard of
the United States, 15a-16a n.8 - a federal reserve component -
threatens to criminalize the use of the Mississippi Guard for
these and certain other domestic operations. This is because
the Posse Comitatus Act prohibits the use of “[a]ny part of
the Army or Air Force as a posse comitatus or otherwise to
execute the laws... .” 18 U.S.C. § 1385 (emphasis added). 62a.

Under 10 U.S.C. § 3062(c), National Guard of the United
States is indisputably part of the Army. 60a. Thus, if the
Fifth Circuit’s finding that the Mississippi Guard is a subpart
of the National Guard of the United States stands, some may
well contend that use of the Mississippi Guard for certain

19

domestic counterterrorism and law enforcement operations is
a felony. See Clark v. United States, 322 F.3d 1358, 1367
(Fed. Cir. 2003) (“To include a National Guard member in a
reserve component . . . when he is in service to the state
National Guard would be to treat that member as a federal
employee, and not as a state serviceman, and would be
contrary to [Posse Comitatus]”). Such a result, especially
with this Nation at war, would damage national security.

Il. JOINT APPLICATION OF THE TECHNICIANS
ACT, PERPICH AND SOUTH CAROLINA PORTS
AUTHORITY PRESENTS IMPORTANT ISSUES
OF FEDERALISM NOT YET ADDRESSED BY
THIS COURT.

It is well established that, “[i]f Congress intends to alter the
‘usual constitutional balance between the States and the
Federal Government,’ it must make its intention to do so
‘unmistakably clear in the language of the statute.’” Gregory
v. Ashcroft, 501 U.S. 452, 460 (1991) (quoting Atascadero
State Hosp. v. Scanlon, 473 U.S. 234, 242 (1985)). This
“plain statement” rule is not met by a mere “general author-
ization for suit in federal court... .” Scott v. Univ. of Miss.,
148 F.3d 493, 499 (5th Cir. 1998), abrogated on other
grounds by Kimel v. Florida Bd. of Regents, 528 U.S. 62
(2000). Rather, both the text and structure of the statute must
“make[] it clear that the State is the [intended] Defendant in
the suit.” /d.

The Adjutant General - a state officer - and the Mississippi
Guard - a state entity - are entitled to sovereign immunity
under the Eleventh Amendment,’ and their i immunity extends

® See Day v. Massachusetts Air Nat'l Guard, 167 F.3d 678, 686 (1st
Cir. 1999); Jones v. New York State Div. of Military Affairs, 166 F.3d 45,
49 (2d Cir. 1999); Knutson v. Wisconsin Air Nat'l Guard, 995 F.2d 765,
769 n.3 (7th Cir. 1993), cert. denied, 510 U.S. 933 ( 1993)(citing Meadows
v. State of Ind., 854 F.2d 1068, 1069 (7th Cir. 1988)); Hefley v. Textron,

20

to federal administrative proceedings - like those at issue
here - that are initiated by private parties such as Association
of Civilian Technicians, a union. E.g., Federal Mar. Comm.
v. South Carolina State Ports Auth., 535 U.S. 743, 760 (2002)
(“[s]tate sovereign immunity bars [federal administrative
agencies, like the FLRA] from adjudicating complaints filed
by a private party against a nonconsenting State’’).

Here, the Fifth Circuit found the Adjutant General and
the Mississippi Guard to have no Eleventh Amendment
immunity—implicitly holding that such had been pierced
through Congress’ putative designation of them as federal
Executive agencies or activities under the Technicians Act.
14a-15a n.7. However, the Fifth Circuit itself repeatedly
admits that there is no plain statutory statement by Congress,
reflecting any intent to pierce these state actors’ immunities.

For example, the decision’s operative portion states that
upon review of the actual statutory language - which of
course should control the outcome - “[w]e begin to get into a
thicket... .” 9a. Maneuvering through that “thicket,” the
Fifth Circuit then “[f]lind[s] 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.” 12a-13a n.6 (emphasis
added).

This finding is not surprising, as if the Fifth Circuit had
found the actual statutory words dispositive, the Fifth Circuit
implicitly concedes it would have to rule the other way:

Inc., 713 F.2d 1487, 1493 (10th Cir. 1983); Hefrich v. Pennsylvania Dept.
of Military Affairs, 660 F.2d 88, 90 (3rd Cir. 1981); Henry v. Textron,
Inc., 577 F.2d 1163, 1164 (4th Cir. 1978), cert. denied, 439 U.S. 1047
(1978); Richardson-Longmire v. Kansas, Adjutant General, no. Civ.A.97-
2679, 1997 WL 156168 (D. Kan. March 8, 1999); Petr v. Delaware Nat'l
Guard, Case No. 94-327-SLR, 1995 WL 579634 (D. Del. Sept. 28, 1995);
Intrioni v. South Carolina Nat'l Guard, 828 F.Supp. 391, 396 (D. S.C.
1993).

21

“{w]e must admit that if one is searching for translucent,
definitional, statutory words under the Labor Management
Act stating that the entities composing the [Mississippi
Guard] constitute an ‘Executive agency,’ the search will be
disappointing.” 13a. A “thicket” is not a “plain statement.”

Additionally, even if there was a plain statement - which
there is not - Congress must have constitutional authority to
pierce a state’s Eleventh Amendment immunity. Here, Con-
gress could not pierce Petitioners’ immunity as the Militia
Clauses are part of Article I of the Constitution and “{C]on-
gress lacks power under Article I to abrogate the States’
sovereign immunity.” Kimel v. Florida Bd. of Regents, 528
U.S. 62, 78 (2000). The Fifth Circuit’s opinion ignores this
black letter rule of law.

In Perpich v. DOD, 496 U.S. 334, 345, 350 n.21 (1990),
this Court made it clear that state National Guards are state
agencies, unless impressed into federal service by Presidential
call. Further, this Court made it clear that Guardsmen are not
in federal service merely because they hold a separate
membership in the National Guard of the United States. Id. at
345. These holdings should have entitled the Mississippi
Guard and its Adjutant General to the full benefits of this
Court’s Eleventh Amendment case law, including Gregory,
501 U.S. at 460, Kimel, 528 U.S. at 78 and South Carolina
State Ports Authority, 535 U.S. at 760.

However, employing the Technicians Act, 32 U.S.C. § 709,
in a context to which it does not apply - federal unionization
proceedings - the Fifth Circuit found that the Adjutant Gen-
eral’s putative status as a federal agent in administering his
Military Technicians somehow converted him into a federal
“Executive agency” under an entirely different federal statu-
tory scheme, the Labor Management Act. 18a. Ignoring not
only the Plain Statement Rule, but also this Court’s
explanation of the state nature of the Guard and its personnel
in Perpich, the Fifth Circuit thereafter found the Labor

CC

22

Management Act to trump Petitioners’ Eleventh Amendment
rights. 14a-15an.7. Petitioners therefore respectfully submit
that certiorari should be granted to address the intersection of
the Technicians Act, Perpich and South Carolina State Ports
Authority, as these new, difficult and important federalism
issues were incorrectly decided by the Fifth Circuit in a
manner that will harm our federal system.

Il. THE FIFTH CIRCUIT’S DECISION THAT
PETITIONERS’ PUTATIVE FEDERAL
AGENCY STATUS TRUMPS THEIR TENTH
AMENDMENT IMMUNITY IS CONTRARY TO
PRINTZ.

The Fifth Circuit gave short shrift to the Petitioners’ Tenth
Amendment rights. Relegating Petitioners’ important con-
stitutional rights to a mere footnote, the Fifth Circuit found
that those rights do. not attach as “[t]he conclusion that the
AG is a federal agency, subject to the [Labor Management
Act] in its federal capacity, renders Printz inapposite.” 14a-
15an.7. This conclusion is mistaken, because as discussed in
detail above, neither the Mississippi Guard nor the Adju-
tant General are “[a]n Executive Agency” under 5 U.S.C.
§ 7103(a)(3). 52a. In any event, and quite importantly to the
instant appeal, even if either or both of them were a statutory
federal “agent” with respect to Military Technicians under
32 U.S.C. § 709, such would not change the constitutional
inquiry. 67a.

In Printz v. United States, 521 U.S. 898, 935 (1997), a
federal statute, 18 U.S.C. § 922, specifically designated state
law enforcement officers to administer part of the Brady Act.
Printz, 521 U.S. at 903. 61a. That explicit federal statutory
designation arguably made them statutory federal “agents.”
Despite this fact, it did not in any way vitiate those state
officials’ Tenth Amendment immunities, and this Court had
no hesitation in holding that:

—_———— ee eee ae

23

Congress cannot compel the States to enact or enforce a
federal regulatory program. [Further,] Congress cannot
circumvent that prohibition by conscripting the States’
officers directly. The Federal Government may [not]
command the States’ officers ...to administer or enforce
a federal regulatory program.

Printz, 521 U.S. at 935.

Here, Respondents are doing exactly what this Court
prohibited in Printz. By coercively dragooning the Missis-
sippi Guard and its Adjutant General to enforce a federal
regulatory program - the Labor Management Act - they are
violating the Tenth Amendment. 50a, 104a, 108a.

Simply put, the Fifth Circuit’s reasoning that 5 U.S.C.
§ 7103(a)(3) of the Labor Management Act trumps Peti-
tioners’ Tenth Amendment rights is contrary to Printz. It is
circuitous to argue that since involuntary statutory con-
scription of a state actor through the Labor Management Act
would render him a federal agent, the resulting agency status
constitutionally immunizes the underlying conscription. This
very reasoning was rejected in Printz, a case which - unlike
here - had an explicit federal Statutory conscription of a
state official.

Here, the Respondents, at the behest of Association of
Civilian Technicians, a private party, are seeking to conscript
the Petitioners into administering and participating in a
federal regulatory scheme, the Labor Management Act.
104a-108a. However, under Printz, such a commandeering is
unconstitutional. Petitioners respectfully submit that this
Court should grant certiorari to clarify the rule in Printz—that
Congress may not obviate the constitutional prohibition on
involuntary conscription of state officers by means of a
federal statutory mandate.

|
}
|
|

24

IV. THE FIFTH CIRCUIT’S OPINION HAS
CREATED SPLITS BETWEEN THE CIRCUITS.

Not only is the Fifth Circuit’s decision contrary to this
Court’s decisions in Perpich, 496 U.S. at 345-46, Gregory,
501 U.S. at 460, Kimel, 528 U.S. at 78, Printz, 521 U.S. at
935 and South Carolina, 535 U.S. at 760, it further has
created splits between the Circuits on a number of issues.

First, in Clark v. U.S., 322 F.3d 1358 (Fed. Cir. 2003), the
Federal Circuit analyzed one of the key issues also in the
instant case - the relationship between a state Guard and the

separate and distinct federal entity the National Guard of the
United States. Clark found:

Although the National Guard of the United States is a
reserve component, the Alabama National Guard, . . . is
not a reserve component of a uniformed service. It
becomes clear, when we consider Supreme Court
precedent and the statutory scheme .. . , that the
National Guard and the National Guard of, the United
States are separate and distinct entities.

Case law thus establishes that when National Guard
members are not activated into federal service, they are
not treated as federal employees.

In short, National Guard members are only serving in the
federal military when they are called into formal military
service.

Clark, 322 F.3d at 1365, 1366 & 1368.

Contrary to Clark, the Fifth Circuit decision in this case
adopted the district court’s finding that the Mississippi Guard
is a subpart of the National Guard of the United States, 15a-
16a n.8, not an entity which is “separate and distinct” as
found by the Federal Circuit in Clark. Further, and also

25

contrary to Clark, the Fifth Circuit decision effectively treats
the Adjutant General as a federal employee, even when he is
“not activated into federal service... .” Clark, 322 F.3d
at 1368. 18a.

Clark is not the only Circuit decision in conflict with the
instant case. By finding that Petitioners were federal agencies
or activities, 16a, the Fifth Circuit found Petitioners to have
no Eleventh Amendment immunity. However, First, Second,
Third, Fourth, Seventh and Tenth Circuit decisions - contrary
to the result here - all have recognized the Eleventh
Amendment immunity of a state Guard. See Day v.
Massachusetts Air Nat’! Guard, 167 F.3d 678, 686 (1st Cir.
1999); Jones v. New York State Div. of Military Affairs, 166
F. 3d 45, 49 (2d Cir. 1999); Knutson v. Wisconsin Air Nat'l
Guard, 995 F.2d 765, 769 n.3 (7th Cir. 1993), cert. denied,
510 U.S. 933 (1993)(citing Meadows v. State of Ind. 854 F.2d
1068, 1069 (7th Cir. 1988)); Hefley v. Textron, Inc., 713 F.2d
1487, 1493 (10th Cir. 1983); Hefrich v. Pennsylvania Dept. of
Military Affairs, 660 F.2d 88, 90 (3rd Cir. 1981); Henry v.
Textron, Inc., 577 F.2d 1163, 1164 (4th Cir, 1978), cert.
denied, 439 U.S. 1047 (1978).

The Fifth Circuit’s opinion is further is in conflict with
Singleton v. Merit Systems Protection Board, 244 F.3d 1331,
1333 (Fed. Cir. 2001), in which the Federal Circuit found the
Merit Systems Protection Board lacked authority to issue
orders to the Ohio Adjutant General, even though the statute
at issue - 5 U.S.C. § 1204(a)(2) - is even narrower in scope of
enforcement power than 5 U.S.C. § 7118(a)(7) of the Labor
Management Act. Here, the Fifth Circuit ignored the plain
language of the Labor Management Act statutes at issue, and,
employing common law agency rules, found the FLRA to
have the authority to issue compulsory orders against a state
Adjutant General, a result contrary to Singleton. 12a, 18a.

Additionally, the Fifth Circuit’s finding that the Adjutant
General can act in a federal Capacity though in a state

{

Te

26

command status, 13a, is contrary to Sixth and Ninth Circuit
decisions. For example, in Gilbert v. United States, 165 F.3d
470, 473 (6th Cir. 1999) (quoting B. Rich, The National
Guard and Posse Comitatus” 1994 Army Law 16, 19) the
Sixth Circuit held that “‘[t]he issue of status depends on
command and control and not on whether: state or federal
benefits apply; state or federal funds are being used; the
authority for the duty lies in state or federal law; or any
combination thereof.’” Further, in United States v. Hutch-
ings, 127 F.3d 1255, 1258-59 (10th Cir. 1997) (emphasis
added), the Tenth Circuit found that in the context of the
Guard, whether one is in a state or federal status “[dJepends
solely on whether command of the Guardsman has been taken
away from a state’s governor by one authorized to do so by
Congress.” These Circuit splits additionally counsel for the
grant of certiorari.

CONCLUSION

For the foregoing reasons, a writ of certiorari should issue
to review the judgment of the Fifth Circuit Court of Appeals.

Respectfully submitted,

E,. BARNEY ROBINSON III *

JEFFREY A. WALKER

BUTLER, SNOW, O’MARA, STEVENS
& CANNADA, PLLC

Post Office Box 22567

Jackson, Mississippi 39225-2567

(601) 948-5711

PAUL ROGER GOOGE, JR.

Special Assistant Attorney General
MISSISSIPPI ATTORNEY GENERAL’S OFFICE
P.O. Box 220

Jackson, Mississippi 39205

(601) 359-3824

Counsel for Petitioners
November 19, 2003 * Counsel of Record

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386015_2435%3A1. Public record. Not legal advice.