United States Court of Appeals
Fifth Circuit
F I L E D
REVISED JUNE 30, 2003 June 24, 2003
IN THE UNITED STATES COURT OF APPEALS
Charles R. Fulbruge III
FOR THE FIFTH CIRCUIT Clerk
_____________________
No. 02-60060
_____________________
JAMES H. LIPSCOMB, III, Major General,
in his official capacity as the Adjutant
General of the State of Mississippi, of
the Militia, of the Mississippi National
Guard, and as the Executive Head of
the Mississippi Military Department;
MISSISSIPPI MILITIA; MISSISSIPPI NATIONAL
GUARD; MISSISSIPPI MILITARY DEPARTMENT,
Plaintiffs - Appellants,
versus
FEDERAL LABOR RELATIONS AUTHORITY, NANCY
SPEIGHT, in her official capacity as
Regional Director of the Federal Labor
Relations Authority, Atlanta Region;
LINDA J. NORWOOD, in her former official
capacity as Acting Regional Director of
the Federal Labor Relations Authority,
Atlanta Region,
Defendants -Appellees.
_______________________________________________________________
Appeal from the United States District Court
for the Southern District of Mississippi
_________________________________________________________________
Before JOLLY, DUHÉ, and WIENER, Circuit Judges.
E. GRADY JOLLY, Circuit Judge:
This appeal involves the efforts of the Association of Civilian
Technicians (“ACT”), a labor union, to conduct a representation
election among the Mississippi Army National Guard civilian
technicians. Adjutant General Lipscomb in his official capacity as
head of the Mississippi National Guard (“MSNG”), the Mississippi
Militia, and the Mississippi Military Department (along with the
entities themselves) (collectively, “Lipscomb”), brought this action
for a declaratory judgment that the Federal Labor Relations
Authority (“FLRA”) had no authority under the Federal Service Labor-
Management Relations Act (“FSLMRA”) to order the Mississippi Army
National Guard (“MSANG”), a unit of MSNG, to permit a union election
among its technicians. The district court dismissed the complaint,
finding that the MSANG, as a subpart of the MSNG, and a federally
recognized unit of the Army National Guard of the United States, is
an activity of a federal agency; and that the Adjutant General
(“AG”), as the duly authorized representative of the United States
military service secretaries, is itself a federal agency. Thus, the
district court concluded, the MSNG, MSANG, and AG are properly
subject to the jurisdiction of the FLRA.
We hold that the civilian technicians, clearly federal
employees by virtue of the National Guard Technicians Act, Pub. L.
No. 90-486, 82 Stat. 775 (codified as amended at 32 U.S.C. § 709
(2003)), are included under the terms of the FSLMRA as federal
employees of an Executive agency. We further find that the AG –-
as an employer of these federal employees -- along with the MSNG and
MSANG, which organizations operate under the AG’s authority and
direction, are federal executive agencies for the purpose of the
2
FSLMRA, and consequently are subject to the jurisdiction of the
FLRA. Accordingly, we agree with the district court and AFFIRM its
judgment dismissing the complaint.
I
In April 2000, the ACT petitioned the FLRA to order an election
among the MSANG technicians. After an evidentiary hearing on the
proposed bargaining unit and associated issues, the FLRA’s office
in Atlanta granted ACT’s petition in February 2001 and ordered an
election. On review to the FLRA in Washington, DC, this decision
was upheld in June. When FLRA officials ordered an election,
Lipscomb filed the present action, seeking declaratory and
injunctive relief. Lipscomb alleged that the defendants were acting
in excess of their statutory powers and in violation of plaintiffs’
constitutional rights. The district court found it had jurisdiction
over the action for declaratory judgment, and granted summary
judgment in favor of the FLRA, holding that the FLRA had authority
to order an election.
In reaching its conclusion, the district court, in a thorough
and cogent opinion, found that MSNG is a federal agency; that MSANG
is an activity of a federal agency; that because the AG wears a
federal hat for purposes of applying the FSLMRA, the constitutional
claims under the Tenth and Eleventh Amendments lacked merit; and
finally, that because of the civilian nature of the technicians’
employment, the doctrine of Feres v. United States, 340 U.S. 135
3
(1950) (military aspects of civilian employment are not subject to
negotiation) did not apply.
On appeal, Lipscomb argues that the application of the FSLMRA
to the MSANG and MSNG conflicts with the statutory scheme under
which the Guard operates, with precedents of the Supreme Court and
this Circuit, with the Tenth and Eleventh Amendments to the United
States Constitution, and with the Feres doctrine. More
specifically, Lipscomb contends that neither the MSNG, the MSANG,
nor the AG are federal executive “agencies” or “activities” of those
agencies within the meaning of 32 U.S.C. § 7103(a)(3) and related
regulations, and therefore that the FLRA lacks jurisdiction over
them.
II
We begin our consideration of this appeal with full recognition
that the national guard is the militia, in modern-day form, that is
reserved to the states by Art. I § 8, cls. 15, 16 of the
Constitution. Maryland v. United States, 381 U.S. 41, 46 (1965).
However, in the modern-day federal scheme, the national guard has
come to occupy a unique place. It has become, by design, a “hybrid”
entity that carefully combines both federal and state
characteristics, sometimes distinctly and sometimes not. The second
Militia clause of the federal Constitution illustrates this duality,
reserving “to the States respectively, the Appointment of the
Officers, and the Authority of training the Militia according to the
4
discipline prescribed by Congress.” Const. art. I, § 8, cl. 16.
The daily operations of the national guard units are thus
recognized generally to be under the control of the states, but
governed largely by substantive federal law. Under the National
Defense Act, 39 Stat. 166, passed in 1916, the guard has been
trained in accordance with federal standards and is armed and funded
by the United States government. The Army National Guard of the
United States is a component of the Army, and is made up of the
federally recognized units and organizations of the Army National
Guards in the respective fifty states. 10 U.S.C. §§ 3062, 10105.
This dual federal-state nature of the national guard system has
remained essentially unchallenged, as the Supreme Court has
observed. Perpich v. Department of Defense, 496 U.S. 334, 347
(1990).
In addition to its part-time, purely military personnel, the
national guard employs full-time civilian workers, described as
national guard technicians. These civilian technicians -- the
object of the union’s organizing efforts here -- are employed by and
perform the daily operations of the state guard units, but are
funded by the federal government. Despite their state character,
these employees were explicitly granted federal employee status in
1968 when Congress enacted the Technicians Act. “In 1968, Congress
was reacting to a situation in which national guard technicians were
considered state employees and consequently were not assured of
5
uniform treatment with respect to fringe benefits or retirement
plans.” New Jersey Air National Guard v. FLRA, 677 F.2d 276, 283-84
(3d Cir. 1982) (“New Jersey Guard”). To provide uniformity and
afford national guard technicians the emoluments of federal service,
“all Guard technicians, who had previously been employees of the
states, were declared to be federal employees, and were thereby
afforded the benefits and rights generally provided for federal
employees in the civil service.” Id. at 279. Thus, through an act
of Congress, national guard technicians are by design “dual-status”
employees. See Brown v. United States, 227 F.3d 295, 298 (5th Cir.
2000); Davis v. Vandiver, 494 F.2d 830, 832 (5th Cir. 1974) (“The
principal purpose of the National Guard Technicians Act . . . was
to create a bifurcated nature of technician employment . . ..”).
In granting technicians federal employee status under the
Technicians Act, Congress was nonetheless concerned with protecting
the military authority of the states. Accordingly, “federal
employee status was carefully hinged upon the reservations set out
in section 709[(f)]) of certain powers to the state adjutants
general.” New Jersey Guard, 677 F.2d at 284. “[S]ection 709[(f)],
which ensures the authority of the state adjutants general, can be
viewed as a virtual quid pro quo for the section 709[(e)] grant of
federal employee status.” Id. Numerous courts, after reviewing
the legislative history of the Technicians Act, have held that the
matters explicitly reserved to the discretion of the adjutants
6
general by section 709(f) reflect Congress’s careful compromise, and
thus are beyond the scope of bargaining under the FSLMRA.1 See,
e.g., New York Council, Ass’n of Civilian Technicians v. FLRA, 757
F.2d 502, 505 (2d Cir. 1985); Indiana Air National Guard v. FLRA,
712 F.2d 1187, 1190, n.3 (7th Cir. 1983); State of Nebraska Military
Department, Office of the Adjutant General v. FLRA, 705 F.2d 945
(8th Cir. 1983); California National Guard v. FLRA, 697 F.2d 874
(9th Cir. 1983). These decisions recognized and safeguarded the
careful state-federal power balance struck by Congress in enacting
the Technicians Act; “it was necessary to carefully craft the
legislation so as not to compromise the essential military
requirements of state guard service.” American Federation of
Government Employees, AFL-CIO, Local 2953 v. FLRA, 730 F.2d 1534,
1543 (D.C.Cir. 1984). Section 709(f) reflects that deliberate
calibration, and the courts, interpreting portions of the
Technicians Act as exceptions to the FSLMRA’s broad coverage, have
found it to be a substantial check on the scope of the FLRA’s
1
The current section 709(f) was previously 709(e) and is referred to as such in cases prior to
the 1999 Amendments, Pub.L. 106-65, § 524, which rewrote parts of § 709. This opinion will refer
to the current statute.
7
authority.2 We now turn to examine more closely the act under which
the FLRA attempts to assert jurisdiction over the MSANG.
III
The Civil Service Reform Act of 1978 brought about a new era
of labor-management relations for the federal service. Pub. L. No.
95-454, 92 Stat. 111, 5 U.S.C § 7101, et seq. Title VII of the
Reform Act, the FSLMRA, governs the labor relations of most federal
employees with the federal government. The FSLMRA “grants federal
agency employees the right to organize, provides for collective
bargaining, and defines various unfair labor practices. §§
7114(a)(1), 7116. It creates the FLRA, which is responsible for
administering the statute through the exercise of broad
adjudicatory, policymaking and rulemaking powers. §§ 7104, 7105.”
Nat’l Federation of Federal Employees, Local 1309 v. Dept. of
Interior, 526 U.S. 86, 88 (1999). The Act applies to employees of
an “Executive agency,” § 7103(a)(2)-(3), and states that “each
employee shall have the right to form, join, or assist any labor
organization, or to refrain from such activity, freely and without
fear of penalty or reprisal, and each employee shall be protected
in the exercise of such right.” § 7102. Notably, the Act
2
It is worth noting that the FLRA itself protects this balance, rejecting unions’ efforts to
encroach on the discretion of the adjutants general by seeking to force bargaining over certain,
excepted terms and conditions of technicians’ employment. See, e.g., American Federation of
Government Employees, AFL-CIO, Local 2953 v. FLRA, 730 F.2d 1534, 1541 (D.C.Cir. 1984)
(affirming FLRA’s decision upholding the national guard’s refusal to bargain over matters that would
conflict with the mandate of the Technicians Act).
8
specifically exempts certain Executive agencies from coverage,
including the General Accounting Office, the Federal Bureau of
Investigation, the Central Intelligence Agency, the National
Security Agency, and the Federal Labor Relations Authority, among
others. See § 7103(a)(3)(A)-(H). Although members of the uniformed
services are explicitly exempted, § 7103(a)(2)(B)(ii), the national
guard as such is not mentioned, nor are the civilian technicians
employed thereby. Thus, we turn to address the next question (and
now we begin to get into a thicket), whether the civilian
technicians of the MSANG are “employees of an Executive agency” of
the federal government within the meaning of the FSLMRA.
IV
Under the Technicians Act, a civilian technician in a state
national guard is statutorily “an employee of the Department of the
Army or the Department of the Air Force, as the case may be, and an
employee of the United States.” 32 U.S.C. § 709(e). It is thus
indisputable that the technicians of the MSANG are “employees of an
Executive agency” under the coverage terms of the FSLMRA. They
therefore have the right to choose union representation, as indeed
numerous cases have acknowledged. See, e.g., Association of
Civilian Technicians, Schenectady Chap. v. FLRA, 230 F.3d 377, 378
(D.C.Cir. 2000) (observing that, as federal employees, the guard’s
civilian technicians are entitled to engage in collective bargaining
over certain matters); New York Council, Ass’n of Civilian
9
Technicians v. FLRA, 757 F.2d 502, 508 (2d Cir. 1985) (noting that
federal employees’ labor relations are governed by the Civil Service
Reform Act, and applying the Act to national guard technicians); New
Jersey Guard, 677 F.2d at 284 (noting the FSLMRA exempts certain
executive agency employees from coverage, but because it does not
reference the national guard or its technicians, it applies to
them).
Nevertheless, Adjutant General Lipscomb maintains that the
MSANG, the MSNG, and the AG are not subject to the jurisdiction of
the FLRA because, while the technicians are federal employees for
certain purposes, these entities that directly employ and supervise
them are not federal “Executive agencies” under § 7103(a)(3), nor
does their employment of the technicians constitute “federal
activities” of an agency under 5 C.F.R. 2421.4.3 Consequently, to
the extent that these technicians may be considered federal
employees of the appellants, Adjutant General Lipscomb argues, they
are not “employees of a federal Executive agency” within the meaning
of the FSLMRA and are not subject to its coverage. The question is
thus reduced to whether these state national guard entities are
“federal executive agencies” for purposes of the FSLMRA, because if
they are, they are plainly covered within its terms. Although many
3
5 C.F.R. § 2421.4 defines “Activity” as it is used in the regulations implementing the
FSLMRA. See 5 C.F.R. 2420.1 (purpose of subchapter is to implement Chapter 71 of Title 5,
governing Labor-Management Relations). Section 2421.4 states that “Activity means any facility,
organizational entity or geographical subdivision or any combination thereof, of any agency.”
10
courts have had occasion to review various aspects of the
Technicians Act and its interaction with the FSLMRA, it appears that
no court of appeals has addressed the jurisdictional questions from
the perspective raised by Lipscomb in this case. All of the
decisions analyzing FLRA orders and actions taken with respect to
the various state national guard organizations apparently have
accepted without question the jurisdiction of the FLRA over them and
their related entities, but only by virtue of the federal status of
the employees, not the status of their employer.4
We should make reference to another factor (which we have
earlier noted) that burdens appellants’ argument that none of them
is an “Executive agency.” By the express terms of the Technicians
Act, the civilian technicians of the MSANG –- bifurcated though the
nature of their employment may be -- are declared to be federal
employees of an Executive agency, i.e., the Department of the Army.
32 U.S.C. § 709(e). As such, it would seem that they are, by
definition, statutorily entitled to the union organizational rights
created for federal employees by the FSLMRA. See Association of
Civilian Technicians, 230 F.3d at 378. Yet, given how the issue is
framed in this case, we must consider whether the Adjutant General,
as the designated employer of these particular federal employees,
4
Even the MSNG, now contesting the FLRA’s authority over it, has appeared previously
before the FLRA to contest the appropriateness of a proposed bargaining unit, apparently without
raising the jurisdictional objection now presented. Mississippi National Guard Mates Shop, Camp
Shelby and Association of Civilian Technicians, Inc., 12 F.L.R.A. 618 (1983).
11
and the entities he oversees, are federal agencies for the purpose
of the FSLMRA, and are thus subject to the jurisdiction of the
FLRA.5
A.
The Adjutant General
We first examine the status of the Adjutant General in
determining whether the FLRA properly asserts jurisdiction over the
MSANG and MSNG. The appellants admit, as they must, that the AG is
an employer, indeed the ultimate employer, of these federal
employees as provided under an act of Congress, the Technicians Act.
They also acknowledge that he is the officer with ultimate control
over and responsibility for the MSNG and MSANG under state law. It
follows from the undisputed federal status of the technicians that
their employer and supervisor is, at the very least, an employer of
federal employees. By any ordinary standard of reasoning, it would
seem incontrovertible, in the absence of a contrary statutory
definition,6 that a statutory employer of regular and permanent
5
Certainly, nothing in this opinion expands the scope of the Mississippi National Guard’s duty
to bargain; we are not called upon to examine any of the areas reserved by § 709(f) to the sole
discretion of the adjutants general of the states. We proceed with the utmost caution, fully cognizant
of the unique role and duty the national guard plays in the defense of this nation, as well as the special
role the states have in administering the national guard and the Technicians Act; we do not purport
to subject the national guard to any greater burden in its labor relations than that permissible under
the existing law. We merely hold that the federal employees employed by the AG and MSANG are
entitled to the rights afforded the rest of the non-excepted federal civilian employees, and recognized
in countless court decisions affecting numerous national guard units and entities.
6
5 U.S.C. § 7103(a)(3) defines “agency” as “an Executive agency including a nonappropriated
fund instrumentality described in section 2105(c) of this title and the Veterans' Canteen Service,
Department of Veterans Affairs), the Library of Congress, the Government Printing Office, and the
12
federal employees, is a “federal employer;” and, consequently, that
a federal employer of such federal employees of the Executive
Department, with the authority to direct and supervise all of their
day-to-day work, must constitute, at least in some recognizable, if
limited sense, an “agency” of the Executive branch of the federal
government.
Yet the AG argues that because of his purely state character
as an officer appointed by the state, in charge only of the state
militia under Article I, § 8 of the Constitution, with authority
primarily drawn from state statutes -- and with no federal statute
expressly defining him as a “federal executive agency” -- he is not,
under the terms of the FSLMRA (defining coverage as employees of an
“Executive agency”), subject to the jurisdiction of the FLRA. We
must admit that if one is searching for translucent, definitional,
statutory words under the FSLMRA stating that the entities composing
the Mississippi National Guard constitute an “Executive agency”, the
Smithsonian Institution but does not include--
(A) the General Accounting Office;
(B) the Federal Bureau of Investigation;
(C) the Central Intelligence Agency;
(D) the National Security Agency;
(E) the Tennessee Valley Authority;
(F) the Federal Labor Relations Authority;
(G) the Federal Service Impasses Panel; or
(H) the United States Secret Service and the United States Secret Service Uniformed
Division.”
We find that the broad and somewhat circular terms of the statutory definitions of agency and
Executive agency are non-dispositive in resolving the specific question that this appeal presents.
13
search will be disappointing. But yet our consideration of the many
factors to which we have alluded –- most arising from the
Technicians Act -- leaves no doubt that the hybrid character of the
AG includes a federal component, which in his capacity as employer
of the technicians renders him an “Executive agency”. As one court
has observed, Section 709 “charges the adjutant generals with
employment and administration of the civilian technicians who are
federal employees. In view of the foregoing there can be no doubt
that the Adjutant General of Delaware is an agency or an agent of
the United States and therefore within the purview of § 1361
[providing action for mandamus in district courts against federal
officers or agencies].” Chaudoin v. Atkinson, 494 F.2d 1323, 1329
(3d Cir. 1974).
Indeed, in NeSmith v. Fulton, 615 F.2d 196, 198 (5th Cir.
1980), this Court held that the AG is itself a federal agency,
despite its status as a state office, because of the federal nature
of the employees the AG supervises and the substantive federal law
that governs the AG’s duties. “The conclusion that an adjutant
general is a federal agency as well as a state officer reflects the
hybrid state-federal character of the National Guard and the role
of adjutants general in administering it.” Id. at 199. Although
this holding was applied to resolve a procedural issue, the court’s
conclusion in NeSmith -- that the AG is itself a federal agency --
constitutes precedent that, even without other considerations to
14
which we have alluded, will control the outcome of this case. See
also Chaudoin, 494 F.2d at 1329; Gilliam v. Miller, 973 F.2d 760,
762 (9th Cir. 1992) (Oregon AG’s personnel actions taken as
supervisor of the federal civilian technicians were taken in the
capacity of a federal agency, for purposes of determining whether
the federal Administrative Procedures Act applies). In short, the
AG constitutes an “Executive agency” for the purposes of this case.
Because of the federal character that the AG assumes under the
Technicians Act, and because the FLRA asserts its jurisdiction over
these entities only in their federal capacities, Appellants’
remaining arguments, based on the Tenth and Eleventh Amendments to
the federal Constitution and the state character of the AG, must
fail.7
B.
The Mississippi National Guard &
The Mississippi Army National Guard
The AG argues, however, that even if the AG is a federal
agency, this appeal still is not resolved. He points out that the
FLRA does not seek to assert its jurisdiction over the AG -- that
7
The AG relies on the Tenth and Eleventh Amendments to the Constitution to avoid the
FLRA’s assertion of jurisdiction over it. Appellants argue that the application of the FSLMRA to the
AG amounts to conscription of a state official into the performance of a federal duty in violation of
the Tenth Amendment. Printz v. United States, 521 U.S. 898 (1997). The conclusion that the AG
is a federal agency, subject to the FSLMRA in its federal capacity, renders Printz inapposite.
MSNG’s second constitutional argument relies on the Eleventh Amendment and Federal
Maritime Commission v. South Carolina State Ports Authority, 535 U.S. 743 (2002) (state sovereign
immunity precluded a federal agency from adjudicating a private party’s complaint that the state port
had violated the Shipping Act). For the purposes of the rights asserted in this case, the MSNG is a
federal agency, unlike the state port in South Carolina.
15
is to say, the AG is not a respondent to the underlying agency
proceedings. Instead, only the MSNG and MSANG -- the entities to
which the technicians are assigned -- are named as the employer
parties in the proceedings before the FLRA. In this connection, the
district court held that MSNG is a federal executive agency for
purposes of the FSLMRA, 5 U.S.C. § 7103(a)(3), and that MSANG is an
“activity” of a federal agency under 5 C.F.R. § 2421.4 (“Activity
means any facility, organizational entity, or geographical
subdivision or any combination thereof, of any agency.”), and thus
they are subject to the obligations of the FSLMRA. The district
court concluded that MSANG is an “activity” of the Department of the
Army, because it is recognized as a part of the Army National Guard
of the United States.8 Lipscomb argues that neither the MSNG or the
8
The district court’s analysis reasoned as follows:
[T]he statute defines “agency” to mean an “Executive
agency,” 5 U.S.C. § 7103(a)(3), which is in turn defined as
“an Executive department ....” 5 U.S.C. § 105. The
Department of Defense is an “executive department,” see 5
U.S.C. § 101, and 10 U.S.C. § 111(a); and the Department of
the Army is a component of the Department of Defense, see
10 U.S.C. § 111(b)(6). The Department of the Army consists
of the Regular Army, the Army National Guard of the United
States, the Army National Guard while in service of the
United States and the Army Reserve, see 10 U.S.C. §
3062(b)-(d); and the Army National Guard of the United
States is the reserve component of the Army that consists in
relevant part of the “federally recognized units and
organizations of the Army National Guard,” see 10 U.S.C. §
10105. As it is indisputable “a federally recognized unit[] and
organization of the Army National Guard,” the Mississippi
Army National Guard (which is a subset of the MSNG), is
16
MSANG are agencies, and that the MSANG, by whom the instant
technicians are employed, is not an “activity” of a federal agency.9
At the outset, we must say that once we have determined that
the AG is a federal executive agency, it requires little exercise
in reasoning for us to conclude that the MSANG and MSNG are
executive agencies for the purpose of FLRA authority and this legal
proceeding. This is true because they exist and operate under the
authoritative direction and control of the adjutant general –-
indeed they are merely the adjuncts of his office, under whom, and
on whose behalf, civilian technicians work.
The AG is the executive head of the Mississippi military
department, Miss. Code. § 33-3-3, and he “shall provide for and be
responsible for the organization, training, tactical employment, and
discipline of the Mississippi National Guard ....” Miss. Code. §
33-3-11. This includes the supervision and authorization of the
Assistant Adjutants General for Army and Air. See e.g., Miss. Code.
thus an element of the Army National Guard of the United
States, and hence falls within the definition of “activity” of an
“agency” within the meaning of § 7103(a)(3) of the FLSRA,
which extends to federal agencies and to “activities” of federal
agencies. See 5 C.F.R. § 2421.4.
Lipscomb v. Federal Labor Relations Authority, 200 F.Supp.2d 650, 660 (S.D.Miss. 2001).
9
As we note below, the question whether the FLRA can compel the Mississippi National
Guard’s compliance with the FLRA may be adequately resolved by the nature of AG Lipscomb
himself -- a federal employer and agency for purposes of the FSLRA. However, because the parties
ascribe great importance to the nature of the MSANG, we address this issue.
17
§ 33-3-9 (Assistant Adjutant General for Army “shall aid the
Adjutant General by the performance of such duties as may be
assigned to him”). It follows that, to the extent that the AG acts
as an executive agency of the federal government, when the AG acts
through the MSNG and MSANG in carrying out his federal duties -- as
he does here as the employer of the technicians –- they likewise are
departments of the federal agency of the AG -- or if one chooses to
use the words of the federal regulations, supra, these organizations
are “activities” of a federal agency. Certainly, the appellants
have offered no basis for us to reject this rationale, plainly
dictated by a common sense reading of the applicable state statutes
when considered in the light of our holding that the AG constitutes
a federal executive agency.10
V
In sum, the appellants have provided us with no persuasive
reason to reject decades of settled practice and the decisions of
our sister circuits, which have upheld the organizational rights of
national guard civilian technicians under the FSLMRA. Although
neither we nor other appellate courts have previously addressed the
precise arguments presented in this appeal, the resolution of the
10
Lipscomb cites Clark v. United States, 322 F.3d 1358 (Fed. Cir. 2003) to support his
argument that because the MSANG is an organizational entity of the state, distinct from the National
Guard of the United States, it cannot be deemed a federal “Executive agency.” Clark addressed the
status of guardsmen -- not dual-status technicians -- under a wholly different statutory scheme.
Consequently, Clark does not affect this Court’s conclusions with respect to the federal character of
AG Lipscomb or the entities he controls.
18
ultimate jurisdictional question presented is straightforward:
Federal employees of federal executive agencies, with the noted
statutory exceptions, are entitled to exercise the rights provided
in the FSLMRA. The civilian technicians are non-excluded federal
employees under the Act, and the AG employs those civilian
technicians; as the federal employer of these federal employees,
with full authority over such federal employees, the AG is –-
notwithstanding his dual capacity as a military officer of the State
of Mississippi -- an agency of the executive department of the
federal government in the context of these proceedings, as are his
organizational adjuncts in the exercise of that employer-related
authority over federal employees.
Thus, for the reasons set out above, the appellants have failed
to demonstrate that the district court erred in denying to them a
declaratory judgment that the FLRA has no authority over the MSANG
to order an election among the technicians in its service.11
Accordingly, the judgment of the district court dismissing the
complaint for declaratory relief is
AFFIRMED.
11
Appellants’ argument that this action is barred by Feres v. United States, 340 U.S. 135
(1950), is inapposite. In Feres, the Supreme Court held that military officers were not liable for
injuries arising out of active duty in the armed forces. This action involves efforts by a federal agency
to vindicate civilian employees’ union rights, not by an individual seeking to impose liability on an
officer of the military for duties arising from the unique relations between soldiers and their superiors.
The Feres doctrine does not reach this case. See Chappell v. Wallace, 462 U.S. 296, 299, 305
(1983).
19