Page:Ohio Adjutant General's Department v. FLRA.pdf/21

Rh “agenc[ies].” 5 U. S. C. §7105(g)(3). And on that score, saying the Departments’ designation transforms petitioners into agencies, with all the legal ramifications of that label, is no more sensible than saying the officer the Secretary of the Interior designates to receive disqualification notices becomes, like the Secretary of the Interior, a principal officer of the United States subject to Senate confirmation. U. S. Const., Art. II, §2.

Finally, the Court’s reliance on the Statute’s “saving clause,” §7135(b), and on the Assistant Secretary of Labor’s decision in Thompson Field, is both misplaced and unpersuasive on its own terms. See Mississippi National Guard, 172d Military Airlift Group (Thompson Field), Asst. Sec. Labor/Management Reports (A/SLMR) No. 20 (Thompson Field).

Section 7135(b) provides that “[p]olicies, regulations, and procedures established under and decisions issued under Executive Orde[r] 11491 … shall remain in full force and effect until revised or revoked by the President, or unless superseded by specific provisions of [the Statute] or by regulations or decisions issued pursuant to [the Statute].” This language merely directs that, absent specific abrogation by the FSLMRS or reconsideration by the appropriate executive officer, prior administrative policies, regulations, and procedures remain just as binding on the Executive Branch as they were before the adoption of the FSLMRS. The Court appears to agree, describing the saving clause as having “continued” pre-FSLMRS administrative practice.

If that is all that the saving clause did, however, I fail to see why it is relevant here. Congress’s directive to “continu[e]” existing administrative practices does not evince approval of any particular practice or prevent a court from saying that a particular practice has been unlawful all