Page:Ohio Adjutant General's Department v. FLRA.pdf/22

8 along. The saving clause “expressly intended to allow both the [FLRA] and the courts to disregard … earlier … interpretation[s] of the Executive Order” and “did not intend for the [FLRA] or the courts to pay any deference to [such earlier] interpretations.” INS v. FLRA, 855 F. 2d 1454, 1461 (CA9 1988); see also Department of Air Force v. FLRA, 877 F. 2d 1036, 1041 (CADC 1989) (§7135 “was merely intended to prevent the slate from being wiped clean until the [FLRA] and the courts could interpret the [FSLMRS] in a manner consistent with Congress’s intent” (internal quotation marks omitted)). Prior agency practice under the “materially identical” language of Executive Order No. 11491 is thus no obstacle to adopting the straightforward reading of “agency” the FSLMRS’s text requires.

Although the majority’s historical-practice argument is flawed at the foundation because it misreads §7135(b), the single administrative decision it cites in support of its argument does not shed much light on the matter at hand anyway. In Thompson Field, the Adjutant General of the State of Mississippi raised a number of objections to federal oversight of the technicians, including that the technicians are not federal employees; that Executive Order No. 11491 is categorically “not applicable to the State of Mississippi”; and that bargaining with a technicians’ union would violate Mississippi law. Thompson Field, at 3–5.

The Mississippi Adjutant General did not make the argument that his Department is not an “agency” within the meaning of the remedial provision of Executive Order No. 11491.

Moreover, in deciding Thompson Field, the Assistant Secretary of Labor relied principally on the fact that dual-status civilian technicians are federal employees and that the protections of Executive Order No. 11491 apply to them. Id., at 6–7. That analysis does not answer the key question whether the Mississippi Adjutant General is an “agency” subject to remedial jurisdiction. And while the Court