No. 02-60060
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
_______________________________
MAJOR GENERAL JAMES H. LIPSCOMB III,
IN HIS OFFICIAL CAPACITIES, et al.
Appellants
v.
FEDERAL LABOR RELATIONS AUTHORITY, et.al.
Appellees
_______________________________
ON APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF MISSISSIPPI
BRIEF FOR THE APPELLEES
DAVID M. SMITH
Solicitor
WILLIAM R. TOBEY
Deputy Solicitor
WILLIAM E. PERSINA
Attorney
Federal Labor Relations Authority
607 14th Street, N.W.
Washington, D.C. 20424
(202) 482-6620
TABLE OF CONTENTS
STATEMENT OF JURISDICTION 1
STATEMENT OF THE ISSUES 2
STATEMENT OF THE CASE 3
A. Nature of the Case 3
B. Statement of the Facts 4
1. The Authority's Role in Administering the Labor
Statute 4
2. The Authority Administrative Proceeding at Issue in
This Case 5
3. Proceedings in the District Court 8
STANDARD OF REVIEW 13
SUMMARY OF ARGUMENT 13
ARGUMENT 17
I. THE DISTRICT COURT CORRECTLY HELD THAT THE
MISSISSIPPI ARMY NATIONAL GUARD IS A COMPONENT,
OR "ACTIVITY," OF AN "AGENCY" OVER WHICH THE
AUTHORITY HAS JURISDICTION UNDER § 7103(a)(3) OF
THE LABOR STATUTE 17
A. Statutory Text and Case Law Support the District Court's Holding 17
B. The Guard's Arguments for Reversal of the Court Below
on the Federal "Agency" Issue Are Without Merit 22
II. THE DISTRICT COURT CORRECTLY HELD THAT THE
MISSISSIPPI ARMY NATIONAL GUARD, IN ITS CAPACITY
AS AN ACTIVITY OF A FEDERAL AGENCY, CANNOT RELY
ON THE TENTH AND ELEVENTH AMENDMENTS TO THE
UNITED STATES CONSTITUTION 28
A. The District Court Correctly Held That the MSANG
Cannot Assert State Rights Under the Tenth Amendment 29
B. The District Court Correctly Held That the MSANG Cannot
Assert State Rights Under the Eleventh Amendment 31
III. THE DISTRICT COURT CORRECTLY HELD THAT THE
DUAL STATUS NATIONAL GUARD TECHNICIANS AT
ISSUE IN THIS CASE CANNOT, UNDER FERES V.
UNITED STATES, BE BARRED FROM INCLUSION IN
A BARGAINING UNIT HELD TO BE APPROPRIATE
BY TH FEDERAL LABOR RELATIONS AUTHORITY
UNDER THE LABOR STATUTE 35
CONCLUSION 41
ADDENDA
Relevant portions of the Federal Service Labor-Management Relations
Statute, 5 U.S.C. §§ 7101-7135 (2000), and other pertinent statutory
and regulatory provisions A-1
FLRA v. Puerto Rico Nat'l Guard, No. 99-1293 (1st Cir., Nov.23,
1999) B-1
Adams v. United States, 218 F.3d 383 (5th Cir. 2000) 39
Am. Fed'n of Government Employees, Local 1816 v. FLRA,
715 F.2d 224 (5th Cir. 1983) 4
Ass'n of Civilian Technicians v. FLRA, 230 F.3d 377 (D.C. Cir. 2000) 37
Brown v. United States, 227 F.3d 295 (5th Cir. 2000), cert. denied
531 U.S. 1152 (2001) 36
Bureau of Alcohol, Tobacco and Firearms v. FLRA, 464 U.S. 89 (1983) 4
California Nat'l Guard v. FLRA, 697 F.2d 874 (9th Cir. 1983) 20
Chappell v. Wallace, 462 U.S. 296 (1983) 8, 35
Chaudoin v. Atkinson, 494 F.2d 1323 (3rd Cir. 1974) 21
Copeland v. Wasserstein, Perella, & Co., Inc., 278 F.3d 472 (5th Cir. 2002) 13
Ellis Fischel State Cancer Hosp. v. Marshall, 629 F.2d 563 (8th Cir. 1980),
cert. denied, 450 U.S. 1040 (1981) 32
Feres v. United States, 340 U.S. 135 (1950) passim
Florida Board of Business Regulation v. NLRB, 686 F.2d 1362
(11th Cir. 1982) 1, 2
FLRA v. Puerto Rico Nat'l Guard, No. 99-1293 (1st Cir., Nov. 23, 1999) 21
Fox v. Brown, 402 F.2d 837 (2nd Cir. 1968), cert. denied, 394 U.S. 938
(1969) 29, 30
Garcia v. San Antonio Metro. Transit Auth., 469 U.S. 528 (1985) 30
Gilliam v. Miller, 973 F.2d 760 (9th Cir. 1992) 21
Granite State Chapter, Ass'n of Civilian Technicians v. FLRA,
173 F.3d 25 (1st Cir. 1999) 37
Illinois Nat'l Guard v. FLRA, 854 F.2d 1396 (D.C. Cir. 1988) 20
Indiana Nat'l Guard v. FLRA, 712 F.2d 1187 (7th Cir. 1983) 20
Jones v. New York State Div. of Military and Naval Affairs, 166 F.3d 45
(2nd Cir. 1999) 31
Jorden v. Nat'l Guard Bureau, 799 F.2d 99 (3rd Cir. 1986), cert. denied,
484 U.S. 815 (1987) 19
Marshall v. A&M; Consol. Indep. Sch. Dist., 605 F.2d 186
(5th Cir. 1979) 32
Montana Air Nat'l Guard v. FLRA, 730 F.2d 577 (9th Cir. 1984) 20
NeSmith v. Fulton, 615 F.2d 196 (5th Cir. 1980) 5, 11, 21, 40
New Jersey Air Nat'l Guard v. FLRA, 677 F.2d 276 (3rd Cir.),
cert. denied sub nom. AFGE, Local 3486 v. New Jersey Air Nat'l
Guard, 459 U.S. 988 (1982) 19, 38, 39
Perpich v. Dep't of Defense, 496 U.S. 334 (1990) 13, 24, 25, 30
Premo v. Martin, 119 F.3d 764 (9th Cir. 1997), cert. denied, 522 U.S. 1147
(1998) 32
Printz v. United States, 521 U.S. 898 (1997) passim
Singleton v. MSPB, 244 F.3d 1331 (Fed. Cir. 2001) 14, 26, 27
South Carolina States Port Authority v. Federal Maritime Authority,
243 F.3d 165 (4th Cir. 2001), petit. for cert. granted 122 S. Ct. 392
(Oct. 15, 2001) 32, 33
State of Nebraska Military Dep't, Office of Adjutant Gen. v. FLRA,
705 F.2d 945 (8th Cir. 1983) 20
State of New York, Div. of Mil. Affairs v. FLRA, 696 F.2d 202
(2nd Cir. 1982) 20
Tennessee Dep't of Human Serv. v. United States Dep't of Education,
979 F.2d 1162 (6th Cir. 1992) 32
Truck Drivers and Helpers v. NLRB, 415 F.2d 986 (D.C. Cir. 1969),
cert. denied, 397 U.S. 935 (1970) 33
U.S. Dep't of Defense, Rhode Island Nat'l Guard v. FLRA, 982 F.2d 577
(D.C. Cir. 1993) 20
Wright v. Park, 5 F.3d 586 (1st Cir. 1993) 37
DECISION OF THE FEDERAL LABOR RELATIONS AUTHORITY
Mississippi Nat'l Guard, 12 FLRA 618 (1983) 20
CONSTITUTION AND STATUTES
Militia Clause of the United States Constitution, Art. I, sec. 8, cl. 16 15,
24, 30
Federal Service Labor-Management Relations Statute,
5 U.S.C. §§ 7101-7135 (2000) 2
5 U.S.C. § 7103 10
5 U.S.C. § 7103(a)(2) 39
5 U.S.C. § 7103(a)(3) passim
5 U.S.C. § 7105(a)(1) 4
5 U.S.C. § 7105(a)(2)(I) 4
5 U.S.C. § 7111 5
5 U.S.C. § 7112 5, 7
5 U.S.C. § 7118(a)(7) 28
5 U.S.C. § 7123(a) 20
5 U.S.C. § 7123(b) 36
5 U.S.C. § 105 17
5 U.S.C. § 554(a)(6) 33
5 U.S.C. § 1204(a)(2) 27, 28
5 U.S.C. § 2105(a)(1)(F) 39
10 U.S.C. § 111(a) 17
10 U.S.C. § 111(b)(6) 18
10 U.S.C. § 976 38
10 U.S.C. § 3062 23
10 U.S.C. § 3062(b)-(d) 18
10 U.S.C. § 10105 18, 22, 23
10 U.S.C. § 10501, et seq. 24
28 U.S.C. § 1291 2
28 U.S.C. § 1331 1, 2
STATUTES
28 U.S.C. § 1343 1
28 U.S.C. § 1346 1
28 U.S.C. § 1361 1
Whistleblower Protection Act (WPA), 5 U.S.C. § 2302(b)(8) 27
Nat'l Guard Technicians Act of 1968, 32 U.S.C. § 709 passim
32 U.S.C. § 709(d) 21
32 U.S.C. § 709(e) 38
32 U.S.C. § 709(f) 39
32 U.S.C. § 709(g) 39
Nat'l Labor Relations Act, 29 U.S.C. §§ 151-188 (1994) 4
CODE OF FEDERAL REGULATIONS
5 C.F.R. § 2421.4 (2002) 7, 18
LEGISLATIVE HISTORY
H.R. Rep. No. 95-894(I), reprinted in 1978 U.S.C.C.A.N. 7575 38
H.R. Rep. No. 95-894(II), reprinted in 1978 U.S.C.C.A.N. 7575 38
MISCELLANEOUS
Fed. R. Civ. P. 12 (b)(1) 9
Fed. R. Civ. P. 12(b)(6) 9
Fed. R. Civ. P. 56 9
Stephen Barr, When the Country Calls on Reservists, It Also Calls on
Employers to Help Support Them, Washington Post, Oct. 1, 2001 5
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 02-60060
_______________________________
MAJOR GENERAL JAMES H. LIPSCOMB III,
IN HIS OFFICIAL CAPACITIES, et al.
Appellants
v.
FEDERAL LABOR RELATIONS AUTHORITY, et al.
Appellees
_______________________________
ON APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF MISSISSIPPI
BRIEF FOR THE APPELLEES
STATEMENT OF JURISDICTION
The district court asserted jurisdiction over the Appellants' claims for
declaratory, but not injunctive, relief pursuant to 28 U.S.C. § 1331.[1]
This appeal is from a final judgment of the district court, dated January 8,
2002. A timely notice of appeal was filed on January 11, 2002. This Court
has jurisdiction over this appeal pursuant to 28 U.S.C. § 1291.
STATEMENT OF THE ISSUES
1. Whether the district court correctly held that the Mississippi Army
National Guard is a component, or "activity," of an "agency" over which the
Federal Labor Relations Authority has jurisdiction under § 7103(a)(3) of the
Federal Service Labor-Management Relations Statute (Labor Statute), 5 U.S.C.
§§ 7101-7135 (2000).
2. Whether the district court correctly held that the Mississippi Army
National Guard, in its capacity as an activity of a federal agency, cannot
rely on the Tenth and Eleventh Amendments to the United States Constitution.
3. Whether the district court correctly held that the dual status National
Guard technicians at issue in this case cannot, under Feres v. United
States, be barred from inclusion in a bargaining unit held to be appropriate
by the Federal Labor Relations Authority under the Labor Statute.
STATEMENT OF THE CASE
A. Nature of the Case
This case arises from a union representation proceeding conducted by the
Federal Labor Relations Authority (Authority) under the Labor Statute.
Specifically, a labor organization, the Association of Civilian Technicians
("ACT" or "union") petitioned the Authority to conduct an election, to
determine whether certain federal employees of the Mississippi Army National
Guard (MSANG) wish to be represented for collective bargaining purposes by
the union. (R. 459.) The MSANG opposed the petition on various grounds,
including that the Authority lacked jurisdiction to proceed in the matter.
(R. 116-18.) The Authority rejected these arguments, and directed that an
election be held. (R. 127.) The MSANG and other related plaintiffs filed
suit for injunctive and declaratory relief in the district court, seeking to
bar the Authority from conducting the election. (R. 1-30.)
The Authority moved to dismiss the Appellants' complaint in the district
court, based on lack of subject matter jurisdiction and failure to state a
claim. (R. 558.) The Appellants moved for summary judgment. (R. 41.) The
district court found that it had subject matter jurisdiction over the
Appellants' claims for declaratory relief, but not over their claim for
injunctive relief. (Rec. Exc., Tab 5, p. 12; R. 667.) The court below then
granted summary judgment in the Authority's favor and dismissed the
Appellants' complaint. (Rec. Exc., Tab 4, pp. 1-3; Tab 5, pp. 28-29; R.
683-84, 685-87.) This appeal followed. The district court denied
Appellants' request for a stay pending appeal. (Supplemental Record on
Appeal (Supp. R.) 61-A to 62-A.)
B. Statement of the Facts
1. The Authority's Role in Administering the Labor Statute
The Authority provides leadership in establishing policies and guidance
relating to federal service labor-management relations. 5 U.S.C. § 7105(a)
(1).[2] The Authority also ensures compliance with the statutory rights and
obligations of federal employees, labor organizations which represent such
federal employees, and federal agencies. The Authority is further empowered
to take such actions as are necessary and appropriate to effectively
administer the Labor Statute's provisions. 5 U.S.C. § 7105(a)(2)(I). See
generally Bureau of Alcohol, Tobacco and Firearms v. FLRA, 464 U.S. 89,
92-93 (1983) (BATF). The Authority's role and functions in administering
the Labor Statute are analogous to those of the National Labor Relations
Board (NLRB) in the private sector under the National Labor Relations Act,
29 U.S.C. §§ 151-188 (1994). Am. Fed'n of Gov't Employees, Local 1816 v.
FLRA, 715 F.2d 224, 225 n.1 (5th Cir. 1983); BATF, 464 U.S. at 93.
2. The Authority Administrative Proceeding at Issue in This Case
On April 11, 2000, the union filed a petition with an Authority regional
office seeking certification from the Authority as the exclusive bargaining
representative for a bargaining unit of National Guard technicians employed
by the MSANG. (R. 459.) As of November 2000, this included about 740 dual
status technicians employed under the National Guard Technicians Act of
1968, 32 U.S.C. § 709 (Technicians Act),[3] and about 45 purely civilian
technicians. (R. 100.) The union filed the petition pursuant to § 7111 of
the Labor Statute, 5 U.S.C. § 7111.
Among other things, in a representation proceeding of this nature, the
Authority must determine whether the bargaining unit proposed by the union
is appropriate under the criteria for determining unit appropriateness set
out in § 7112 of the Labor Statute. The Authority's regional director found
the proposed bargaining unit appropriate and ordered an election in the
proposed unit, to determine whether a majority of employees wish to be
represented by the Union. (R. 108-09.)
The MSANG filed with the Authority an application for review of the regional
director's direction of election. (R. 114; Supp. Exc. Rec. 1.)[4] In its
application for review to the Authority, as relevant here, the MSANG raised
three claims: 1) the Authority is without subject matter jurisdiction over
the administrative proceeding because the MSANG is not a federal agency
within the meaning of the Labor Statute; 2) the Regional Director's order of
an election improperly compels a state agency to perform a federal function,
in violation of the Eleventh Amendment and Printz v. United States, 521 U.S.
898 (1997) (Printz); and 3) the employees involved here cannot be
represented by a union because they are military personnel in a military
organization. (R. 116-18; Supp. Exc. Rec. 3-5.)
The Authority rejected the MSANG's application for review. (R. 127; Supp.
Exc. Rec. 14.) As relevant to this case, the Authority first held that
under well-established precedent, the various state National Guards act as
federal agencies when they administer the Technicians Act. (R. 119; Supp.
Exc. Rec. 6.) Therefore, the MSANG is an agency within the meaning of the
Labor Statute.[5] (Id.) Second, the Authority held that because the MSANG
was appearing before the Authority in the Guard's capacity as a federal
agency, there was no unconstitutional usurpation of state powers as in
Printz. (R. 121; Supp. Exc. Rec. 8.) Third, the Authority held that a
bargaining unit under the Labor Statute may include National Guard
technicians. In this connection, the Authority held that while it may not
address military aspects of technician employment, that rule posed no
problem here because this case concerns solely the civilian aspects of
technician employment. (R. 121-22; Supp. Exc. Rec. 6-7.)[6]
As a result of these holdings, the Authority denied the MSANG's application
for review. (R. 127; Supp. Exc. Rec. 14.) This left standing the regional
director's order directing an election among the employees in the bargaining
unit. The Plaintiffs then filed the instant law suit in the court below.
3. Proceedings in the District Court
In their Complaint, the Appellants sought a declaratory judgment stating
that: 1) the Authority is without subject matter jurisdiction over the
underlying administrative proceeding because the MSANG is not a federal
agency within the meaning of the Labor Statute; 2) the Authority's order of
an election improperly compels a state agency to perform a federal function,
in violation of the Eleventh Amendment and Printz v. United States, 521 U.S.
898 (1997) (Printz); and 3) the employees involved here cannot be
represented by a union under Feres v. United States, 340 U.S. 135 (1950)
(Feres), because they are military personnel.[7] (R. 11-27.) The
Appellants also sought injunctive relief, to prevent the Authority from
carrying out its election order.[8] (R. 29-30.)
The Guard moved for a preliminary injunction and/or summary judgment. (R.
41.) The Authority moved to dismiss the complaint for lack of subject
matter jurisdiction under Fed. R. Civ. P. 12(b)(1), and failure to state a
claim on which relief could be granted under Fed. R. Civ. P. 12(b)(6). (R.
558.)
The district court found that it had subject matter jurisdiction over the
Guard's claims for declaratory judgment, but not for injunctive relief, and
therefore denied the Authority's motion to dismiss based on Fed. R. Civ. P.
12 (b)(1). (R. 667; Exc. Rec. Tab 5, p. 12.) The court then dismissed the
Guard's complaint on the merits because its claims for declaratory relief
were not supported by law. (R. 683; Exc. Rec. Tab 5, p. 28.) Treating the
Authority's motion to dismiss for failure to state a claim under Fed. R.
Civ. P 12(b)(6) as a motion for summary judgment under Fed. R. Civ. P. 56,
the court granted summary judgment to the Authority. (R. 686; Rec. Exc. Tab
4, p. 2.)
The district court began its consideration of the merits of the case by
identifying several points that were "clear beyond dispute." (R. 673; Exc.
Rec. Tab 5, p. 18.) These points were that: 1) the MSANG as an organization
has a "hybrid" federal/state status; 2) dual status National Guard
technicians are as a matter of law federal employees; 3) the state Adjutants
General under the Technicians Act are federal agents responsible for
administering the Technicians Act, and have authority over matters relating
the employment of technicians; and 4) "every court that has considered the
issue has held that National Guard technicians, as federal employees who are
not excluded from coverage of the [Labor Statute], fall within the coverage
of that Act and thus have the right to choose union representation." (R.
674; Exc. Rec. Tab 5, p. 19.)
The district court then considered each of the Guard's claims individually.
The court first rejected the Guard's claim that the MSANG was not an
"agency" within the meaning of § 7103(a)(3) of the Labor Statute. (R. 675;
Rec. Exc. Tab 5, p. 20.) The court began with the definition of an "agency"
in § 7103, and then traced the statutory link between that definition and
the MSANG, as a federally recognized unit of the Army National Guard of the
United States. This statutory analysis established the MSANG as a component
of the United States Department of Defense, thus bringing it within the
definition of an "agency" under the Labor Statute, and of an "activity"
under the Authority's regulations. (R. 675-76; Rec. Exc. Tab 5, p. 20-21.)
Further, in addressing another Guard argument, the district court "reject[ed
the Guard's] attempt to have it focus entirely on the Adjutant General's
status as a state officer." (R. 677; Rec. Exc. Tab 5, p. 22.) The court
held that the Adjutant General, although a state official, is designated by
law as a federal agent for the employment and administration of dual status
technicians under the Technicians Act. (R. 676-77; Rec. Exc. Tab 5, pp.
21-22.) The lower court cited numerous judicial rulings to this effect,
including this Court's opinion in NeSmith. (R. 678-69; Rec. Exc. Tab 5,
pp. 23-24.)[9] The district court also observed in this connection that the
Authority, in its case law involving dual status technicians, has shown that
it "has consistently refused to require collective bargaining over those
matters reserved to the adjutants general." (R. 681; Rec. Exc. Tab 5, p.
26.)
Finally, the district court held that Feres and the "considerations which
animate the doctrine" do not bar the Authority from conducting an election
in a bargaining unit containing dual status technicians. (R. 682; Rec. Exc.
Tab 5, p. 27.) The court relied in this regard on the previously noted
"hybrid" civilian/military nature of dual status technician employment, and
noted existing Authority and court case law observing the rule that
"military aspects of technicians' employment are not subject to
negotiation." (Id.) Accordingly, the court held, Feres provided no basis
for preventing dual status technicians from "organizing and bargaining over
civilian aspects of their employment." (R. 683; Rec. Exc. Tab 5, p. 28.)
Based on the foregoing, the court below concluded in its Memorandum Opinion
and Order that the Guard's "complaint for declaratory relief is not well
taken and [the] complaint must therefore be dismissed." (R. 683; Rec. Exc.
Tab 5, p. 28.) In a separate Final Judgment, the lower court denied the
Authority's motion to dismiss for lack of subject matter jurisdiction;
denied the Guard's motion for preliminary injunction and/or summary
judgment; treated the Authority's motion to dismiss for failure to state a
claim as a motion for summary judgment and granted that motion; and
dismissed the Guard's complaint with prejudice. (R. 686-87; Rec. Exc. Tab
4, pp. 1-2.) The lower court also denied the Guard's motion for a stay of
the Authority's order directing an election pending appeal. (Supp. R. 61-
A.)
STANDARD OF REVIEW
The standard of review of the lower court's legal rulings in a case such as
this, in which there is no dispute as to material facts, is de novo.
Copeland v. Wasserstein, Perella, & Co., Inc., 278 F.3d 472, 477 (5th Cir.
2002).
SUMMARY OF ARGUMENT
1. The district court correctly held that the MSANG is a component, or
"activity," of a federal agency. First, the court below correctly analyzed
the federal statutes that connect the MSANG, as a "federally recognized
unit" of the Army National Guard of the United States, to the United States
Defense Department. Second, the court below properly looked to a very large
body of case law, spanning several decades, firmly establishing that both
the state National Guards, and the dual status technicians who make up the
vast majority of National Guard bargaining units, have a federal capacity
which is subject to Authority jurisdiction.
The Guard does not demonstrate that the lower court's careful analysis on
this point is erroneous. The court below correctly held that nothing in
Perpich v. Dep't of Defense, 496 U.S. 334 (1990), calls for a different
result. Further, the Guard's argument, that district court erred because
the MSANG has not been shown to have been "converted into" the Army National
Guard of the United States (Br. 22), misses the point. The critical point
is that the MSANG, as a "federally recognized unit" of the Army National
Guard of the United States, has a capacity as a statutorily recognized
reserve component of the United States Department of Defense, even when it
has not been subsumed into the Army National Guard of the United States as
an active element of the federal military.
Nor can the Guard credibly contend that the MSANG is a purely state entity
when not on active duty. The Guard conceded in the court below that it
receives federal funding. It has also never contended that it is not
subject to regulations promulgated by the Departments of the Army and Air
Force through the Defense Department's National Guard Bureau. These
measures of federal support and control could not exist if the MSANG was a
purely state entity.
Finally, the court below correctly declined to accept the Guard's "futility"
argument that any Authority directives to the MSANG could not be carried out
because the Adjutant General is a state official. As several decades of
case law have shown, all the elements for ensuring that Authority directives
are carried out are present: a federal activity (the MSANG), and a state
official who is designated by the Technicians Act, 32 U.S.C. § 709, as a
federal agent for the employment of dual status technicians. Singleton v.
MSPB, 244 F.3d 1331 (Fed. Cir. 2001), involves a different statutory scheme,
and is thus distinguishable.
2. As the foregoing analysis establishes, the court below correctly
rejected the Guard's constitutional arguments based on the Tenth and
Eleventh Amendments to the United States Constitution. As for the Tenth
Amendment, the lower court rightly distinguished the Supreme Court's
decision in Printz v. United States, 521 U.S. 898 (1997), on the ground that
the state officials in that case had no federal capacity whatsoever.
Moreover, the Tenth Amendment reserves rights to the states only to the
extent that the United States Constitution has not divested the states of
those powers. However, the Militia Clause of the United States
Constitution, Art. I, sec. 8, cl. 16, expressly gives the Congress the power
to direct the organization and training of the various state Guards. The
Authority's exercise of jurisdiction over the MSANG is simply a product of
Congress' regulation of dual status technician employment by the state
Guards under the Technicians Act.
As the lower court also recognized, the federal capacity of the MSANG and
the Adjutant General renders the Eleventh Amendment inapplicable. However,
even assuming for argument's sake that the MSANG is a state entity, the
amendment nevertheless is inapplicable. Under case law of this circuit, the
amendment does not apply to administrative proceedings. It also does not
apply to the kind of non-adversarial Authority representation proceeding at
issue here, in which the union is asking the Authority to conduct an
election to determine whether the union should be certified as the exclusive
bargaining agent for a unit of MSANG employees.
The court below properly declined to hold that the Guard entities not a
party to the Authority proceeding suffer constitutional harm. The Guard
provided only conjecture and opinion, not evidence, that any cognizable harm
would be suffered by state entities as a result of the MSANG's participation
in the Authority representation proceeding here at issue.
3. Finally, the lower court properly rejected the Guard's claim that the
doctrine of Feres v. United States bars dual status National Guard
technicians from being included in bargaining units under the Labor Statute.
This case does not involve the kind of adversarial law suit by a subordinate
member of the military against a superior that Feres was designed to
prevent. Further, in all of the court cases reviewing Authority decisions
involving dual status technicians, Feres has never been applied. The
Authority's "military aspect" doctrine, in which the Authority declines to
assert jurisdiction over matters concerning technicians' military capacity,
adequately protects the concerns underlying the Guard's assertion of Feres.
Legislation enacted after the Technicians Act is further evidence of
Congress' understanding and intent to allow dual status technicians to be
included in bargaining units under the Labor Statute. The Guard's reliance
on record statements by Guard officers, that technicians perform work in
furtherance of the military mission of the Guard, do not change this legal
conclusion.
ARGUMENT
I. THE DISTRICT COURT CORRECTLY HELD THAT THE MISSISSIPPI ARMY NATIONAL GUARD
IS A COMPONENT, OR "ACTIVITY," OF AN "AGENCY" OVER WHICH THE AUTHORITY HAS
JURISDICTION UNDER § 7103(a)(3) OF THE LABOR STATUTE
A. Statutory Text and Case Law Support the District Court's Holding
1. The district court saw through the Guard's attempt to portray the MSANG
as a purely state entity when not called to active military duty. The court
below correctly held that the MSANG does have a federal capacity, which
renders it an "activity" of an "agency" over which the Authority has
jurisdiction within the meaning of § 7103(a)(3) of the Labor Statute (R.
675; Rec. Exc. Tab 5, p. 20). Its holding on this point should be affirmed.
The court below began its analysis with a consideration of the relevant
statutory text, as follows (R. 675; Rec. Exc. Tab 5, pp. 20-21).
Section 7103(a)(3) of the Labor Statute defines an "agency" in
relevant part as an "Executive agency." 5 U.S.C. § 7103(a)(3).
An "executive agency" is defined in relevant part as an "Executive
department." 5 U.S.C. § 105.
The Department of Defense is an Executive department. 10 U.S.C. §
111(a).
The Department of the Army is a component of the Defense Department.
10 U.S.C. § 111(b)(6).
The United States 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. 10 U.S.C. § 3062(b)-(d)
(emphasis supplied).
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." 10 U.S.C. §
10105.
The MSANG, the sole entity before the Authority in the underlying
proceeding, is, among other things, indisputably a "federally recognized
unit[] and organization[] of the Army National Guard," and thus an element
of the Army National Guard of the United States. Based on the foregoing
statutory references, this fact directly and explicitly establishes that the
district court correctly found the MSANG to be an organizational entity, or
"activity," of an "agency" (i.e., the United States Department of Defense)
within the meaning of § 7103(a)(3) of the Labor Statute.[10]
2. But in addition to this statutory analysis, case law and other statutory
provisions establish the accuracy of the lower court's ruling on this point.
It is clear, as the district court pointed out (R. 673; Exc. Rec. Tab 5, p.
18), that the various state National Guards have both federal and state
functions. For example, the activity, makeup, and function of the National
Guard is provided for mainly by federal law. See New Jersey Air Nat'l Guard
v. FLRA, 677 F.2d 276, 278-79 (3rd Cir.), cert. denied sub nom. AFGE, Local
3486 v. New Jersey Air Nat'l Guard, 459 U.S. 988 (1982) (New Jersey
Guard).[11] The National Guard Bureau, an adjunct of the United States
Departments of the Army and Air Force, provides regulatory guidance to the
various state National Guards in their federal capacity, to ensure their
readiness for duty. Jorden v. Nat'l Guard Bureau, 799 F.2d 99, 101 (3rd
Cir. 1986), cert. denied, 484 U.S. 815 (1987).
Moreover, the federal/state hybrid character of Guard units like the MSANG
is further reflected in the status of its employees. Since passage of the
Technicians Act in 1968, technicians such as those here involved have been
employees of the United States, and as such entitled to the rights and
benefits of federal employment. These rights and benefits include the right
to collective bargaining under the Labor Statute. See, e.g., U.S. Dep't of
Defense, Rhode Island Nat'l Guard v. FLRA, 982 F.2d 577 (D.C. Cir. 1993);
Illinois Nat'l Guard v. FLRA, 854 F.2d 1396 (D.C. Cir. 1988); Montana Air
Nat'l Guard v. FLRA, 730 F.2d 577 (9th Cir. 1984); Indiana Nat'l Guard v.
FLRA, 712 F.2d 1187 (7th Cir. 1983); State of Nebraska, Military Dep't,
Office of the Adjutant Gen. v. FLRA, 705 F.2d 945 (8th Cir. 1983);
California Nat'l Guard v. FLRA, 697 F.2d 874 (9th Cir. 1983); State of New
York, Div. of Mil. Affairs v. FLRA, 696 F.2d 202, 203 (2d Cir. 1982).
Indeed, there have been literally hundreds of dual status technician cases
over the more than 20 years of the Authority's existence on which the
Authority has ruled.[12] As the court below noted (R. 674; Rec. Exc. Tab 5,
p. 19), dozens of these Authority cases have been reviewed on the merits in
circuit courts of appeals under the special review scheme for Authority
decisions, 5 U.S.C. § 7123(a).
Further, when National Guard units are not acting in a federalized military
capacity, they are headed by an Adjutant General who, by federal law, must
be designated by the appropriate Secretary of the Army or Air Force "to
employ and administer the technicians authorized" by the Technicians Act.
32 U.S.C. § 709(d). Adjutants General have been found to act in the
capacity of federal agents or federal agencies for purposes of administering
the National Guard technicians program. See, e.g., Gilliam v. Miller, 973
F.2d 760, 762 (9th Cir. 1992) (an Adjutant General's personnel actions "as
supervisor over the federal civilian technicians are taken in the capacity
of a federal agency"); NeSmith, 615 F.2d at 199; Chaudoin v. Atkinson, 494
F.2d 1323, 1329 (3rd Cir. 1974); FLRA v. Puerto Rico Nat'l Guard, No.
99-1293 (1st Cir., Nov. 23, 1999) (unpublished) (Addendum B to this
brief).[13]
In sum, as the district court recognized, the various components of the
Mississippi National Guard do act in certain situations and at certain times
as instrumentalities of the State of Mississippi. Accordingly, the Guard
belabors the obvious when it argues (Br. 16-18) that the various components
of the Mississippi National Guard have a state capacity. The key point, as
the lower court recognized (R. 676; Rec. Exc. Tab 5, p. 20), is that the
MSANG also has a capacity as a component of a federal agency.
Despite the Guard's apparent attempt to ignore this fact, it is in this
federal status that the MSANG appears before the Authority in this case.
Accordingly, the court below correctly held that the Authority properly
exercises jurisdiction over the MSANG as an activity of a federal agency
within the meaning of § 7103(a)(3) of the Labor Statute.
B. The Guard's Arguments for Reversal of the Court Below on the Federal
"Agency" Issue Are Without Merit
1. The Guard never refutes the lower court's careful statutory analysis
establishing a direct and interlocking organizational connection between the
MSANG in its federal capacity, and the United States Department of Defense.
Rather, the linchpin of the Guard's argument on this point is the assertion
(Br. 20-22) that the Army National Guard of the United States, described in
10 U.S.C. § 10105, is an entirely separate entity from the MSANG. This
argument misses the point.
The district court correctly held (R. 675; Rec. Exc. Tab 5, p. 20) that the
MSANG is a statutory component of the Army National Guard of the United
States, not that the two are identical organizations. That is, the district
court correctly recognized that the MSANG is, as a matter of law, one of the
"federally recognized units and organizations of the Army National Guard"
which goes to make up the Army National Guard of the United States under 10
U.S.C. § 10105.[14]
The Guard itself freely concedes that the Mississippi National Guard is a
"federally recognized" unit (R. 4-5). This concession by itself refutes the
Guard's argument that the MSANG is not an activity of an "agency" within the
meaning of the Labor Statute.
Notwithstanding this conclusive concession, the MSANG's status as a
component of a federal agency is hardly debatable by the Guard. If the
MSANG was not such a "federally recognized" unit, it could not receive
federal funding and equipment, nor would it be subject to federal Air Force
and Army regulations as administered to the various state Guards by the
National Guard Bureau under 10 U.S.C. § 10501, et seq. (1994). But the
Guard conceded in the court below that it receives federally appropriated
funds (R. 42). Moreover, the Guard has never indicated that it is not
subject to applicable regulations of the Secretaries of the Air Force and
the Army, as administered through the National Guard Bureau. These further
points also establish the MSANG's status, in its federal capacity, as an
activity of a federal agency within the meaning of § 7103(a)(3) of the Labor
Statute.
2. The Guard also places heavy reliance on the Supreme Court's opinion in
Perpich v. Department of Defense, 496 U.S. 334 (1990) (Perpich). However,
as the court below correctly held (R. 680; Rec. Exc. Tab 5, p. 25 fn. 14),
nothing in Perpich compels the conclusion that federally recognized state
National Guard units are exclusively state entities unless called up to
active military duty on behalf of the United States. In fact, the Supreme
Court expressly recognized the dual state/federal nature of state Guard
units. Perpich, 496 U.S. at 345 (the various state Guards and the National
Guard of the United States are "two overlapping but distinct
organizations"). The Court also recognized Congress' power under the
Militia Clause of the United States Constitution, Art. I, sec. 8, cl. 16, to
regulate the state Guards, in order to ensure a well-prepared military.
Perpich, 496 U.S. at 340.
The Guard erroneously attempts (Br. 24) to relate the "dual enlistment"
system discussed in Perpich, 496 U.S. at 345, to the wholly separate issue
raised in this case, i.e., whether the MSANG possess any capacity as an
organizational component, or "activity," of the Defense Department. In this
connection, the Guard argues that individual military enlistees of the state
Guard do not become members of the United States Army until called to active
military duty on behalf of the United States.
Whatever may be the truth of the Guard's assertion on this point, it is
beside the point here. This case concerns only dual status Guard
technicians in their capacity as federal civilian employees, and the MSANG
as a federally recognized component of the military of the United States.
The status of individual military members of the state Guards under the
"dual enlistment" system discussed in Perpich is simply irrelevant to
determining whether the MSANG as an organization is, as a matter of law, an
"activity" of an "agency" under § 7103(a)(3) of the Labor Statute. The
district court correctly decided that it was, and the Guard's contrary
arguments should be rejected.
3. Finally, the Guard argues (Br. 40-43) that the court below erred in not
holding that it would be "futile" to compel the MSANG to participate in the
Authority's administrative proceeding due to a supposed inability of the
Authority to obtain enforcement of its orders. This futility argument is
based on the claims that the MSANG, the only named party before the
Authority, "lacks any authority over technicians"; while the Adjutant
General, who is designated to employ technicians, is not a named party
before the Authority.
The district court's ruling establishes the baselessness of the Guard's
attempt to create a bureaucratic "shell game" concerning application of the
Labor Statute to bargaining units of Guard technicians. First, the court
below noted the fact that numerous state National Guards across the country
have for many years been subject to Authority jurisdiction (R. 674; Rec.
Exc. Tab 5, p. 19). Yet there has never been any indication of enforcement
difficulties of the kind suggested by the Guard in any of these cases.
Second, the lower court's ruling demonstrates why there is no such
enforcement problem: all the necessary ingredients to allow for effective
enforcement are present. There is an activity of a federal agency over
which the Authority has jurisdiction; and there is a statutorily designated
federal agent, the state Adjutant General, who can carry out Authority
orders directed to the activity.
The Guard's reliance on Singleton v. MSPB, 244 F.3d 1331 (Fed. Cir. 2001)
(Singleton), is completely misplaced. In that case, the Merit Systems
Protection Board (Board) held that it was without the power to issue an
enforceable order to a state Adjutant General, to remedy a Guard
technician's allegation of an alleged violation by the Guard of the
Whistleblower Protection Act (WPA), 5 U.S.C. § 2302(b)(8). The Board
therefore dismissed the technician's WPA claim for failure to state a claim
on which relief could be granted. The Federal Circuit affirmed.
First, the overwhelming body of case law, a small part of which is
referenced at pp. 19 to 20, above, recognizes the Authority's jurisdiction
over the various state Guards and their Adjutants General. This fact in
itself shows that the basis for the ruling in Singleton is not relevant to
National Guard cases arising under the Labor Statute.
Second, the critical basis for the Board's and court's ruling in Singleton,
completely ignored by the Guard in its argument here, was the statutory
remedial provision governing the Board. Specifically, under 5 U.S.C. §
1204(a)(2), the Board's remedial orders may only be directed to a "Federal
agency or employee." The court found that a remedial order concerning the
taking of a personnel action in favor of an individual employee, even if
directed to the Guard as a federal agency, would have to be carried out by
the Adjutant General. However, because the Adjutant General is not a
federal employee, as the court found to be required under § 1204(a)(2), the
court agreed that the Board properly found itself without any basis to issue
an effective remedial order. Singleton, 244 F.3d at 1336-37.
The Labor Statute does not require the presence of a federal employee to
carry out the Authority's remedial orders, in contrast to the court's ruling
in Singleton under § 1204(a)(2). In fact, Authority directives, such as
remedial orders in unfair labor practice cases, are required to be directed
only to agencies. E.g., 5 U.S.C. § 7118(a)(7). Accordingly, the presence
of the Adjutant General, as a state official who is designated by statute as
a federal agent for the employment of technicians, is sufficient to enable
the Authority to issue orders that can be lawfully enforced. Accordingly,
this Guard argument should be rejected as well.
II. THE DISTRICT COURT CORRECTLY HELD THAT THE MISSISSIPPI ARMY NATIONAL GUARD,
IN ITS CAPACITY AS AN ACTIVITY OF A FEDERAL AGENCY, CANNOT RELY ON THE TENTH AND
ELEVENTH AMENDMENTS TO THE UNITED STATES CONSTITUTION
The district court again correctly rebuffed the Guard's attempt to portray
the MSANG as a purely state entity, when the court rejected the Guard's
assertion in this case of rights accorded the states under the Tenth and
Eleventh Amendments to the United States Constitution (R. 680-81; Rec. Exc.
Tab 5, pp. 25-26 fn. 15). The lower court's ruling on this constitutional
point follows logically from its findings that the MSANG has a capacity as a
component of a federal agency; and that the Adjutant General is the
statutorily designated federal agent for the employment of dual status Guard
technicians (R. 675-680; Rec. Exc. Tab 5, pp. 20-25).
A. The District Court Correctly Held That the MSANG Cannot Assert State Rights
Under the Tenth Amendment
The court below correctly rejected (R. 680-81; Rec. Exc. Tab 5, pp. 25-26
fn. 15) the Guard's claim that the MSANG can lawfully refuse to participate
in the Authority's administrative proceeding based on the Tenth Amendment.
In this connection, the lower court accurately distinguished the Supreme
Court's decision in Printz v. United States, 521 U.S. 898 (1997) (Printz).
Due to its clear and well-established federal status, discussed above, the
MSANG can in no way be likened to the State officers at issue in Printz. In
Printz, a federal gun control law required the "chief law enforcement
officer" of each local jurisdiction to perform certain tasks, such as
conducting background checks related to implementation of the scheme.
Printz, 521 U.S. at 903. These local officers acted in no federal capacity
whatsoever prior to enactment of the federal law. In contrast, as we have
seen above, the various state National Guards, including the MSANG, have a
well-established status as federal agencies that predates enactment of the
Labor Statute as administered by the Authority.[15]
The Tenth Amendment preserves state sovereignty over matters "only to the
extent that the Constitution has not divested [the states] of their original
powers and transferred those powers to the Federal Government." Garcia v.
San Antonio Metro. Transit Auth., 469 U.S. 528, 549 (1985). As indicated at
p. 24, above, however, the Militia Clause of the Constitution, Art. 1, sec.
8, cl. 16, expressly gives the United States Congress the power to direct
the organization and training of the various State National Guards.
Perpich, 496 U.S. at 350-51. The States are directed by that clause only to
carry out the training mandated by Congress.
Thus, the States have never possessed the kind of state sovereignty over the
National Guards that the Guard claims they have. In fact, if the Guard's
argument was correct, many statutory provisions in Title 32 of the U.S.
Code, such as the Technicians Act's designation of the Adjutants General as
federal agents for dual status technician employment, would be
unconstitutional under the Tenth Amendment. In short, the Guard's argument
on this point (Br. 33-35) proves far too much. The Tenth Amendment is
therefore inapplicable here, as the court below held.
B. The District Court Correctly Held That the MSANG Cannot Assert State Rights
Under the Eleventh Amendment
1. The court below also correctly rejected (R. 680-81; Rec. Exc. Tab 5, pp.
25-26 fn. 15) the Guard's claim that the MSANG can lawfully refuse to
participate in the Authority's administrative proceeding based on the
Eleventh Amendment. What has already been said, concerning the federal
capacity of the MSANG as a statutory component of a federal agency, and the
statutory role of the Adjutants General as federal agents in the employment
of dual status technicians, supports this holding.
The Guard's sole basis for applying the Eleventh Amendment to the MSANG in
this case is Jones v. New York State Div. of Military and Naval Affairs, 166
F.3d 45 (2d Cir. 1999). However, this reliance is misplaced. That case
involved an individual who was only a military member of the Guard, and did
not involve any action taken by the Guard in its federal capacity. Again,
the court below recognized that the state National Guards have a state
capacity. The court only held that they are not solely and exclusively
state entities.
2. Even assuming for argument's sake that the MSANG is a state entity, it
would still not be entitled to immunity under the Eleventh Amendment.
Neither the Authority nor the Union is proceeding against the Guard in a
court, as required under that amendment. Further, to the extent that any
future enforcement action is brought against the Guard, it would be brought
by the Authority to enforce a bargaining order (if the bargaining unit
employees vote for union representation and the Guard refuses to recognize
and bargain with the Union). It is well established that the Eleventh
Amendment does not apply to federal agencies suing in their own name. See,
e.g., Marshall v. A&M; Consol. Indep. Sch. Dist., 605 F.2d 186, 188 (5th Cir.
1979) (Marshall) (no Eleventh Amendment bar to an action brought by a
federal administrative agency pursuant to a complaint of a private
individual).
The Guard's reliance on South Carolina States Port Authority v. Federal
Maritime Authority, 243 F.3d 165 (4th Cir. 2001), petit. for cert. granted
122 S. Ct. 392 (Oct. 15, 2001) (South Carolina), does not advance their
cause. First, prevailing case law in the Fifth Circuit remains Marshall,
with which South Carolina is at odds.[16]
Second, even assuming the applicability of South Carolina, an Authority
representation proceeding is not an adversarial adjudication akin to a law
suit, the existence of which was critical to the Fourth Circuit's ruling in
that case. Rather, a representation proceeding is non-adversarial, more
akin to an application for a license or permit. Truck Drivers and Helpers
v. NLRB, 415 F.2d 986, 989 n.11 (D.C. Cir. 1969), cert. denied, 397 U.S. 935
(1970); 5 U.S.C. § 554(a)(6) (exempting adjudications involving "the
certification of worker representatives," such as here involved, from the
procedural requirements for an administrative hearing under the
Administrative Procedures Act).
In short, the union in this case is not suing the MSANG for relief for
alleged injuries suffered by the union. Rather, the union is petitioning
the Authority to conduct an election, to determine whether the Authority
should issue to the union a certification to bargain on behalf of unit
employees. This is not the kind of adversarial law suit the Eleventh
Amendment is aimed at, even under South Carolina.
3. Finally, the Guard argues (Br. 43-45) that the court below erroneously
failed to consider the harm to the Tenth and Eleventh Amendment rights of
the state entity plaintiffs that are not parties to the Authority's
proceeding. In support of this claim, the Guard refers (Br. 43, fn. 26) to
affidavit statements of a Mississippi National Guard officer. This officer
opined that personnel representing the MSANG before the Authority would be
in "state status;" and that different working conditions of dual status
technicians resulting from collective bargaining under the Labor Statute
would have a "negative impact" on other personnel of the Guard.
These broad, conclusory, and unsubstantiated opinions of the Guard officer
affiant, and other similar statements in the record, hardly merited much
discussion from the court below. The Guard never established in the record
that the Guard was compelled to use only personnel paid solely by state
funds to represent the MSANG before the Authority.
Further, the idea that different working conditions established through
collective bargaining would have a "negative impact" on other personnel is
entirely speculative. To date, no election has been held among the
employees in the bargaining unit. Thus, if the employees vote not to have a
union, there will be no different set of working conditions being created
through collective bargaining. But even if the employees did vote for a
union, the notion that any different working conditions resulting for these
employees from collective bargaining would be harmful to the Guard is
conjectural. The Guard provided no evidence whatsoever from the more than
forty states in which Guard technicians are unionized to support this
proposition.
III. THE DISTRICT COURT CORRECTLY HELD THAT THE DUAL STATUS NATIONAL GUARD
TECHNICIANS AT ISSUE IN THIS CASE CANNOT, UNDER FERES V. UNITED STATES, BE
BARRED FROM INCLUSION IN A BARGAINING UNIT HELD TO BE APPROPRIATE BY THE FEDERAL
LABOR RELATIONS AUTHORITY UNDER THE LABOR STATUTE
Contrary to the Guard's argument (Br. 45-51), the district court correctly
held (R. 682-83; Rec. Exc. Tab 5 at pp. 27-28) that the doctrine of Feres v.
United States, 340 U.S. 135 (1950) (Feres), and subsequent cases, does not
bar the Authority from exercising jurisdiction over the MSANG in its federal
agency capacity.
1. Most significantly, Authority representation proceedings like the one at
issue here do not involve the kind of suit to obtain relief from a superior
officer by an individual member of the military to which the Feres doctrine
has been limited. Chappell v. Wallace, 462 U.S. 296, 305 (1983). Rather,
as indicated at pp. 32-35, above, this proceeding is more in the nature of
an application by the union to the Authority to direct an election, to
determine whether the Authority should issue a certification to the union to
represent unit employees. The employees themselves have sued no one.
Moreover, even if the union should win the election directed by the
Authority, it would be the union in the overwhelming majority of cases, and
not individual employees, that would be the filing party should there be
grievances and unfair labor practice (ULP) charges against the Guard.
Further, if judicial action should be necessary to enforce an Authority
remedial order against the Guard, it would be the Authority, and not an
individual technician, that would bring the enforcement action pursuant to §
7123(b) of the Labor Statute.
In all of the legions of Authority and court cases involving the bargaining
rights of technicians under the Labor Statute, the Feres line of cases has
never been applied. The Guard never contends otherwise. In short, the
entire premise of the Feres doctrine, i.e., that courts should not have to
intercede in disputes between military superiors and subordinates, is simply
not presented in this case. The Authority's proceeding does not implicate
any "inherently military" aspect of the MSANG's operations. Cf. Brown v.
United States, 227 F.3d 295, 299 n.4 (5th Cir. 2000), cert. denied 531 U.S.
1152 (2001) (holding that dual status technician can sue under Title VII for
alleged discrimination in his civilian capacity, since Title VII
"specifically provides for claims against the government for civilian
employees in the military departments").
2. Notwithstanding the legal inapplicability of the Feres doctrine to the
present case, the court below also correctly observed (R. 682-83; Rec. Exc.
Tab 5 at pp. 27-28) that the Authority has been careful to draw a line
between matters that concern technicians' civilian employment and their
military duties. For example, the Authority held nonnegotiable a union
bargaining proposal that would have mandated how the National Guard Bureau
in the Department of Defense informs dual status technicians of their
eligibility to volunteer for active military duty. The basis for the
Authority's holding was that the proposal related to the "military aspect"
of technician employment. Ass'n of Civilian Technicians v. FLRA, 230 F.3d
377 (D.C. Cir. 2000).[17]
Contrary to the Guard's claim (Br. 47-48), the court below did not reference
the Authority's "military aspect" doctrine as a substitute for the Feres
doctrine. Rather, the court was in effect observing that, notwithstanding
the inapplicability of Feres, the Authority and reviewing courts have
nonetheless been careful to confine themselves to the purely civilian
aspects of technician employment.
3. Legislation enacted after the Technicians Act confirms that Congress
intended technicians to have the right to bargain collectively like other
federal employees. In 1978, Congress enacted what was to become 10 U.S.C. §
976 (Pub. L. 95-610), which prohibits collective bargaining in the military.
However, the legislative history demonstrates that Congress knew of and
considered the special employment circumstances of dual status technicians,
and did not eliminate collective bargaining rights for those employees. See
H.R. Rep. No. 95-894(I), reprinted in 1978 U.S.C.C.A.N. 7575, 7580; H.R.
Rep. No. 95-894(II), reprinted in 1978 U.S.C.C.A.N. 7575, 7586.
This clear legislative choice by the Congress is very much in keeping with
its creation, 10 years earlier in the Technicians Act, of the dual military
and civilian status of technicians. The Technicians Act states that a
technician employed under the Act is 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). E.g., New Jersey Guard, 677 F.2d
at 279 (under the Technicians Act, while also serving in a military
capacity, dual status technicians "were declared to be federal employees,
and were thereby afforded the benefits and rights generally provided for
federal employees in the civil service").
The Technicians Act not only establishes the civilian character of
technician employment, but also reflects Congress' intent that technicians
have the same collective bargaining rights as other federal employees. In
this regard, subsections 709(f) and (g) exempt technicians from some
specific provisions of Title 5 of the United States Code, but, importantly,
do not exempt them from the Labor Statute. Based on the foregoing, Congress
clearly intended that dual status Guard technicians fit within the
definition of an "employee" in § 7103(a)(2) of the Labor Statute. They also
are expressly included in the definition of federal civilian employee in 5
U.S.C. § 2105(a)(1)(F).
What Congress did in the Technicians Act was to provide dual status
technicians with the rights and benefits accorded to all other federal
civilian employees, with certain specific exceptions not here relevant.[18]
E.g., New Jersey Guard, 677 F.2d at 279. The fact that Congress chose to
exclude certain federal civil service provisions from application to
technicians, but has never chosen to do so concerning the Labor Statute, is
a powerful indicator that the Guard's argument on this point is wrong.
Adams v. United States, 218 F.3d 383, 389 (5th Cir. 2000) (application of
the doctrine inclusio unius est exclusio alterius).
4. The Guard attempts to make much of statements contained in affidavits it
submitted to the court below (Br. 47). These statements, contained in the
affidavits of various Guard officers (R. 86-90, 511-44; Rec. Exc. Tabs
6-14), describe the various duties of dual status technicians, express the
view that the nature of their employment is "inherently military," and offer
the conclusion that unionization of these employees would "be detrimental to
the operations and efficiency of the Mississippi National Guard." (See,
e.g., R. 86-90; Rec. Exc. Tab 6, pp. 3-7.)
The court below properly disregarded these statements, because they add
absolutely nothing to the resolution of the legal issues in this case. The
fact that dual status technicians perform duties in furtherance of the
military mission of the Guard is hardly a new revelation. Literally dozens
of court decisions, including from this Court, have recognized the military
nature of technician employment. See, e.g., NeSmith, 615 F.2d at 201. The
issue here is whether, notwithstanding the military nature of technician
employment, these employees have organizing rights under the Labor Statute
to the extent consistent with their civilian employee capacity. The court
below correctly held that they do.
The affiants' speculative and unsubstantiated views on the effect of
technician unionization on the Guard's efficiency are irrelevant. Indeed,
their views are undermined by the fact that the Guard submitted not one
shred of evidence to show that the 30-plus years of technician unionization,
in more than forty States and territories of the United States, has in any
way impaired Guard operational efficiency.
In short, the Guard's strident argument (Br. 47) that its affiants'
statements are unrebutted amounts to nothing. The district court correctly
realized that these statements add nothing to resolving a case that turns on
purely legal issues. The Guard's arguments on this point should also
therefore be rejected.
CONCLUSION
The judgment of the district court should be affirmed.
Respectfully submitted.
____________________________
DAVID M. SMITH
Solicitor
____________________________
WILLIAM R. TOBEY
Deputy Solicitor
____________________________
WILLIAM E. PERSINA
Attorney
Federal Labor Relations Authority
607 14th Street, N.W.
Suite 330
Washington, D.C. 20424-0001
(202) 482-6620
MAY 2002
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
_______________________________
MAJOR GENERAL JAMES H. LIPSCOMB III,
In His Official Capacities, et al.,
Appellants
i. No. 02-60060
FEDERAL LABOR RELATIONS AUTHORITY,
et al.,
Appellees
_______________________________
CERTIFICATE OF SERVICE
I certify that copies of the Federal Labor Relations Authority's Brief ,
Supplemental Excerpt of Record and an electronic version of the Brief have
been served upon the following counsel:
E. Barney Robinson III T. Hunt Cole, Jr.
Jeffrey A. Walker [COR LD NTC]
Butler, Snow, O'Mara, Stevens Office of the Attorney General
& Cannada, PLLC Post Office Box 220
210 East Capitol Street, Suite 1700 Jackson, MS 39205-0220
Post Office Box 22567
Jackson, MS 39225-2567
Thelma Brown
Paralegal Specialist
May 21, 2002
CERTIFICATION OF COMPLIANCE
Pursuant to Federal Rule of Appellate Procedure 32 and Circuit Rule R. 32, I
certify that the attached brief is proportionately spaced, utilizes 14-point
serif type, and contains 9,488 words. I am also providing an electronic
version of the brief to this Court and to Appellants
___________________________
William E. Persina
May 21, 2002
[1] The Appellants' assertion, on p. 1 of their brief (Br.), that the
district court also premised its jurisdiction on 28 U.S.C. §§ 1343, 1346, and
1361, is mistaken. The district court expressly premised its finding of subject
matter jurisdiction on Florida Board of Business Regulation v. NLRB, 686 F.2d
1362 (11th Cir. 1982) (Florida Board) (Record on Appeal (R.) 667; Appellants'
Record Excerpts (Rec. Exc.), Tab 5, at p. 12). In Florida Board, the Court
relied solely on 28 U.S.C. § 1331 as the jurisdictional basis for the law suit
in that case. Florida Board, 686 F.2d at 1370. The court below gave no
indication that it relied on the other jurisdictional statutes referenced by the
Appellants, nor do those other statutes appear to be applicable in this case.
[2] Relevant statutory and regulatory provisions are provided in Addendum
A to this brief.
[3] Guard technicians are referred to as "dual status" because they are
civilian employees who must, as a prerequisite of their civilian employment,
become and remain military members of the Guard unit in which they are employed.
There are approximately 48,000 dual status technicians employed by the various
state National Guards. Stephen Barr, When the Country Calls on Reservists, It
Also Calls on Employers to Help Support Them, Washington Post, Oct. 1, 2001, at
B2. Of these, approximately 33,000 are in collective bargaining units under the
Labor Statute, in more than 40 states around the country. U.S. Office of
Personnel Management, Union Recognition in the Federal Government 54 (1999).
For a discussion of the dual military and civilian status of National Guard
technicians under the Technicians Act, see NeSmith v. Fulton, 615 F.2d 196 (5th
Cir. 1980) (NeSmith).
[4] The Authority's decision is also provided to the Court as a
Supplemental Excerpt of Record (Supp. Exc. Rec.), contemporaneous with the
filing of this brief.
[5] The Authority's regulations, 5 C.F.R. § 2421.4 (2002), define an
"activity" as "any facility, organizational entity, or geographical subdivision
or combination thereof, of any agency." Accordingly, the Authority also held
(R. 119; Supp. Exc. Rec. 6.) that the MSANG in its federal capacity is an
"activity" of the United States Department of Defense.
[6] The Authority also rejected the MSANG's arguments concerning the
appropriateness of the proposed bargaining unit under the criteria in § 7112 of
the Labor Statute for making appropriate unit determinations. (R. 123-27; Supp.
Exc. Rec. 10-14.) The Appellants did not contest this Authority ruling,
however, and it will not be discussed further in this brief.
[7] Under Feres, a member of the military cannot sue a superior officer
for damages stemming from his military service. See also Chappell v. Wallace,
462 U.S. 296 (1983).
[8] The named plaintiffs in the complaint, in addition to the MSANG, were:
the Adjutant General of the State of Mississippi, Major General James H.
Lipscomb III; the Mississippi Militia; the Mississippi National Guard; and the
Mississippi Military Department. (R. 1.) Only the MSANG in its federal
capacity appeared as a party before the Authority in its representation case
proceeding. These plaintiffs/appellants will collectively be referred to herein
as "the Guard."
The named defendants in the complaint were the Authority; Nancy Speight in
her official capacity as Regional Director of the Authority's Atlanta
regional office; and Linda Norwood, in her official capacity as the former
Acting Regional Director of the Atlanta regional office. These
defendants/appellees will collectively be referred to herein as "the
Authority."
[9] Based on its holdings concerning the federal capacity of the MSANG and
the Adjutant General, the court below rejected the Guard's assertion that the
states' rights under the Tenth and Eleventh Amendments to the United States
Constitution barred the Authority from asserting jurisdiction in this case. (R.
680 n.15; Rec. Exc. Tab 5, pp. 26 n.15.)
[10] As indicated at p. 7, n.4, above, an "activity" is defined in
Authority regulations as, among other things, an "organizational entity . . . of
[an] agency." 5 C.F.R. § 2421.4 (2002). Accordingly, contrary to the Guard's
claim (Br. 19-20), once the statutory lineage between the United States
Department of Defense and the MSANG is established, as the lower court
accurately did in this case, the latter is shown to be an activity of the
former.
[11] The Guard appears to concede this point in 130 of its Complaint (R.
24), wherein it states that "the national guard is part and parcel of the
military" of the United States.
[12] In fact, the Mississippi National Guard participated some 19 years ago
as a party in a case before the Authority without questioning the Authority's
jurisdiction over it. Mississippi Nat'l Guard, 12 FLRA 618 (1983).
[13] The Guard argues (Br. 25-32) that the court below erred in holding the
State Adjutant General to be himself a "federal agency" under § 7103(a)(3) of
the Labor Statute, over which the Authority has jurisdiction. This argument
misapprehends the lower court's ruling. That court only held, in rejecting a
Guard argument, that Adjutants General are "'hybrid federal and state
officials,' who function in a federal capacity, i.e., as a federal agent, in
their role of employing and administering technicians' employment." (R. 678;
Rec. Exc. Tab 5, p. 23, quoting NeSmith, 615 F.2d at 199.) The court below was
not, in rejecting the Guard's claim, making a separate holding that the Adjutant
General himself was a federal agency within the meaning of § 7103(a)(3).
Indeed, the only named party respondent before the Authority was the MSANG, not
the Adjutant General. Hence, upon correctly holding, as the lower court did,
that the MSANG is an "activity" of a federal "agency," the Authority's
jurisdiction over the matter is perfected.
[14] Accordingly, the Guard is wrong when it claims (Br. 22), that under 10
U.S.C. § 3062, the MSANG is "never a part of a federal department or agency"
unless called to active duty. Indeed, § 3062 expressly states that the Army of
the United States consists of, among other things, the Army National Guard of
the United States, which in turn is composed of the various "federally
recognized" state Army National Guard units. Moreover, this statutory
relationship between federally recognized state Guard units and the United
States Defense Department as organizational entities exists, regardless of
whether the MSANG has "ever in modern times been converted into the [National
Guard of the United States] ," as the Guard argues (Br. 22).
[15] In the only decision on the issue disclosed by research, Fox v. Brown,
402 F.2d 837, 841 (2d Cir. 1968), cert. denied, 394 U.S. 938 (1969), the court
held that "the plenary power of Congress over the raising and maintenance of
armed forces" rendered the Tenth Amendment inapplicable to a Guardsman's
challenge to an order directing him to active duty. Given the federal capacity
of the Guard and the Adjutant General in employing technicians in furtherance of
military readiness, the ruling in Fox is directly applicable to the present
case.
[16] South Carolina is also at odds with the holdings of at least three
other circuit courts. Premo v. Martin, 119 F.3d 764 (9th Cir. 1997), cert.
denied, 522 U.S. 1147 (1998); Tennessee Dep't of Human Serv. v. United States
Dep't of Education, 979 F.2d 1162 (6th Cir. 1992); Ellis Fischel State Cancer
Hosp. v. Marshall, 629 F.2d 563 (8th Cir. 1980), cert. denied, 450 U.S. 1040
(1981).
[17] Indeed, courts that have applied the Feres doctrine to dual status
technicians in suits not involving the Labor Statute have nonetheless recognized
that dual status technicians are appropriately included in bargaining units
under the Labor Statute. For example, in Wright v. Park, 5 F.3d 586 (1st Cir.
1993) (Wright), the First Circuit held that certain personnel decisions
regarding technicians are nonjusticiable military matters under Feres. However,
that same court has also recognized that technicians are covered under the Labor
Statute and may be included in bargaining units. E.g., Granite State Chapter,
Ass'n of Civilian Technicians v. FLRA, 173 F.3d 25 (1st Cir. 1999). This same
distinction observed by the First Circuit should apply here.
[18] The civil service provisions expressly made inapplicable to dual
status technicians in the Technicians Act include certain adverse action appeal
and overtime pay rights. 32 U.S.C. § 709(f), (g).