Filed: Jul. 10, 1997
Latest Update: Feb. 21, 2020
Summary: National Guard program to assist in drug interdiction.positions taken by other Guard personnel.under the selective service statute.technician duties with the Guard.H, arguendo e, ow , this , court , would , decide such a case is unclear.technicians who claim reemployment protection.
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
No. 96-2213
ROBERTO TIRADO-ACOSTA, ET AL.,
Plaintiffs, Appellants,
v.
PUERTO RICO NATIONAL GUARD, ET AL.,
Defendants, Appellees.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Carmen C. Cerezo, U.S. District Judge]
Before
Selya, Circuit Judge,
Cyr, Senior Circuit Judge,
and Boudin, Circuit Judge.
Rafael F. Castro Lang with whom F. Castro Amy was on brief for
appellants.
Sylvia Roger Stefani, Assistant Solicitor General, Department of
Justice,
with
whom
Carlos
Lugo Fiol, Solicitor General, and Edda Serrano
Blasini, Deputy Solicitor General, were on brief for appellees.
July 9, 1997
BOUDIN, Circuit Judge. Plaintiffs in this action, all
members of the Puerto Rico National Guard, were called to
active
duty
in the Persian Gulf War. Prior to active duty and
briefly upon their return, they were employed full-time in a
National Guard program to assist in drug interdiction. Not
long after their return, the plaintiffs' assignment to this
program
was
terminated
by the Puerto Rico National Guard. When
the
plaintiffs sued, the district court ruled that they had no
statutory
right to reemployment in such a program. We affirm.
The basic facts are not in dispute. The Puerto Rico
National Guard, like the National Guards in all 50 states, is
a hybrid organization. National Guards are ordinarily under
the control of state (or, in the case of Puerto Rico,
Commonwealth)
officials, but are organized pursuant to federal
statute,
and
in war time or other emergencies, Guard units may
be brought under federal control. See U.S. Const., art. I,
sec. 8, cl. 16; 32 U.S.C. S 101, et seq.
In
1989,
Congress
authorized federal funding to permit the
local National Guards to support drug interdiction and other
counter-drug activities. 32 U.S.C. S 112. Section 112
provided
that each state desiring to participate would draw up
its own plan subject to approval by the Secretary of Defense.
Despite this and other authority over the program granted to
the Secretary of Defense, the statute required that the
National
Guard personnel involved in these operations be under
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local
control and "not in Federal service," id. S 112(c)(1), a
requirement apparently designed to mesh with the Posse
Comitatus Act, 18 U.S.C. S 1385, limiting the use of federal
troops for domestic law enforcement purposes.
Most National Guard members ordinarily serve only part
time, but there are exceptions. Section 112 itself provided
that subject to Secretary of Defense regulations, local
National Guard members could, pursuant to a state plan, "be
ordered
to
perform full-time National Guard duty under section
502(f) of this title for the purpose of carrying out drug
interdiction
and counter-drug activities." 32 U.S.C. S 502(f)
allows National Guard personnel to be assigned additional
duties, apart from ordinary drills and field exercises, with
the provision appropriate for "pay and allowances."
Beginning
in
1989,
the
Puerto Rico National Guard used the
federal funds provided under section 112 for a variety of
counter-drug projects. In one of the projects, Puerto Rico
National Guard personnel assisted the U.S. Customs Service in
inspecting cargo containers arriving and leaving Puerto Rico
ports and airports. Each of the plaintiffs in this case is a
Puerto Rico National Guard member who was assigned to work
full-time in 1989 to 1990 in this phase of the counter-drug
program. Minor variations aside, each plaintiff worked under
orders couched in the following terms:
You are ordered to Active Duty special
work (ADSW) for the period indicated plus
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allowable
travel time. Upon completion of
the period of ADSW unless sooner relieved
or extended by proper authority you will
return
to
the place where you entered ADSW
and are relieved from such duty.
According to the memorandum of understanding between the
Puerto Rico National Guard and the Customs Service, "National
Guard personnel employed in support of [the Customs Service]
for counter-drug operations will be under the command of, and
directly
responsible to their military chain of command." The
memorandum also said that "all missions will be executed
through
the
military
chain of command; i.e., tactical direction
of the troops . . . will be left solely to the National Guard
Officers in Charge/Noncommissioned Officer in Charge."
Thus, the plaintiffs working in the drug interdiction
program
were
ultimately
commanded and controlled by Puerto Rico
National Guard officers, and they were paid for their work by
the Puerto Rico National Guard from funds provided by the
federal government. However, much of the plaintiffs' day-to-
day work was directed by Customs Service officials. The work
itself
did
not
entail
the use of any specialized military skill
but consisted mainly of unloading and reloading cargo
containers or inspecting their contents.
The
plaintiffs' pay and allowances for full-time National
Guard duty in the program were substantial (e.g., $1,400 to
$2,000 per month). Each plaintiff worked under orders
assigning
him such duty for a relatively brief period, ranging
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from
2
days
to 61 days, but the orders were regularly renewed.
At
trial
the
plaintiffs
testified that they believed that these
orders
would
be
renewed
indefinitely so long as funding for the
drug interdiction program continued. They said that they had
been given assurances that they would not be dismissed unless
they failed to perform their work satisfactorily.
In January 1991, all of the plaintiffs were called into
active service on account of the Persian Gulf War and left
their positions in the drug interdiction program. The
plaintiffs completed their active federal military duty in
early
July
1991
and
were
reassigned by the Puerto Rico National
Guard
to
the
drug interdiction program for the period July 11,
1991
to
September
30,
1991. On October 1, 1991, the plaintiffs
were released from full-time duty in the program, and their
positions taken by other Guard personnel.
In
September
1992, the plaintiffs brought suit in federal
district court in Puerto Rico seeking reinstatement and back
pay. The principal claim brought against the Puerto Rico
National Guard "and/or the United States of America" was that
defendants had violated the plaintiffs' rights under the
Veterans' Reemployment Rights Act ("the Veterans' Act"), then
codified
at
38 U.S.C. S 2021 et seq., by not retaining them in
their full-time drug-interdiction positions following their
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return from the Gulf War. The United States was later
dismissed as a defendant.1
The Puerto Rico National Guard moved to dismiss the
complaint on several grounds, including failure to state a
claim, non-justiciability, Eleventh Amendment immunity, non-
exhaustion of administrative remedies, and untimeliness. The
district
court deemed most of these defenses lacking in merit;
and it said that the merits could not be resolved without
developing
a
factual
record. Accordingly, after discovery, the
district
court
conducted
a bench trial in August 1995 and heard
testimony from both sides.
In
a
written
decision
issued August 16, 1996, the district
court dismissed the complaint. It ruled that the plaintiffs
did not have reemployment rights under the Veterans' Act
because their drug interdiction positions were "military in
nature" and therefore beyond the statute's intended coverage;
the
court
did not reach or resolve the defendants' alternative
statutory
defense
that
the plaintiffs be excluded from coverage
because
their
posts
were
"temporary." See 38 U.S.C. S 2021(a).
The district court entered judgment for the defendants, and
this appeal followed.
1The complaint also alleged that two individual Guard
officers had violated 42 U.S.C. S 1983 by refusing to retain
the plaintiffs in the program; but this claim was contingent
on a showing of violation of the Veterans' Act and requires
no further discussion.
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In our view, the district court was clearly right in its
construction of the federal statute, and we affirm on that
ground without addressing other defenses. Where the result
would
be
the
same, this court has often rejected claims on the
merits without resolving possible jurisdictional objections.
Hachikian
v.
FDIC
,
96
F.3d 502, 506 n.4 (1st Cir. 1996). Here,
the case ought to be decided promptly, in view of the delay
already
suffered by the plaintiffs, and the legal issue is one
that can be decided definitively only by a federal court.
We begin with the terms of the Veterans' Act. This
statute, enacted in 1978, carried forward the policy that
Congress
first
adopted
in 1940 to provide employment protection
for veterans returning from military service. Monroe v.
Standard Oil Co., 452 U.S. 549, 554-55 (1981). Although the
Veterans' Act has itself been superseded by a new enactment--
the
Uniform
Services
Employment and Reemployment Act, 38 U.S.C.
S 4301 et seq.--the new statute applies only to reemployments
initiated on or after October 13, 1994. 110 Stat. 3336.
The Veterans' Act main section granting reemployment
rights is 38 U.S.C. S 2021, which provides protection for
anyone "inducted into the Armed Forces of the United States"
under the selective service statute. A companion section, 28
U.S.C. S 2024, extends similar protection, by cross-reference
back to section 2021, to several other classes of persons
including reservists and others called to "active duty (other
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than
for
the
purpose of determining physical fitness and other
than for training) . . . ." Concededly, the plaintiffs were
called to active duty in 1991.
Section 2021(a) provides that an inductee (or by cross-
reference a reservist called to active duty) "who leaves a
position
(other
than
a
temporary position) in the employ of any
employer"
is
entitled to reemployment if sought within 90 days
after release from the military. The conditions and
obligations vary somewhat depending on whether the prior
employer was governmental or private, but it is common ground
that the statute protects prior employment by the federal
government, the states, and the Commonwealth of Puerto Rico.
See 38 U.S.C. S 2021(a); id. S 101(20) (defining the
Commonwealth as a state for this purpose).
Although
the
Veterans' Act covers "a position (other than
a temporary position) in the employ of any employer," the
defendants argue that the statute was not meant to protect
prior employment in a military position. We consider at the
outset whether the statute, which contains no such limiting
term,
should
be
so
construed; and, finding that it should be so
read, we then return to the question whether the plaintiffs'
former positions in the drug interdiction program should be
regarded as unprotected military positions. Both are legal
questions, but of slightly different character.
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As we have noted, no express term in the Veterans' Act
limits a protectible former "position" to a position in
civilian employment or excludes from the category of
protectible
positions a military assignment. Nevertheless, it
is
apparent
to
us
that
the statute must be thus construed. The
evidence for this conclusion is provided by the structure and
purpose of the statute, by extrinsic policy safeguarding the
autonomy of military organizations, and by the lack of
precedent extending reemployment protection to military
positions.
First, the very design of the Veterans' Act makes clear
its central aim was to protect those who were inducted or
otherwise drawn into military life and thereby required to
surrender
their
civilian
jobs. The Supreme Court, for example,
has spoken of the Veterans' Act as relating to "military
service after which a member of the Armed Forces retains the
right to civilian employment." King v. St. Vincent's Hosp.,
502
U.S.
215,
216
(1991). Congress probably did not insert the
word "civilian" before "position" simply because it seemed
unnecessary to add a term made almost redundant by context.
Each of the provisions providing reemployment protection
is
directed
at
persons
who cross the barrier from civilian into
military life: the inductee (section 2021), the enlistee
(section 2024(a)), the reservist entering upon active duty
(other than for physical fitness testing or for training)
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(section 2024(b)), and certain persons who enter upon active
duty for training or inactive duty training (subsections (c)
and
(d)).
It
is
persons
who leave "a position" to perform such
duties and thereafter seek to "be restored to such position"
who are protected. 38 U.S.C. S 2021(a).
There is simply no hint in all this that when Congress
sought to protect prior employment, it intended to protect
prior employment in a military capacity. It is true that
civilian
employees of state and federal military organizations
are
themselves
protected
if called to active duty. See Panigua
v. Department of the Air Force, 13 M.S.P.R. 306, 307-09
(M.S.P.B. 1982). But such civilian employees of the military
are akin to civilian employees of any other department of
government. Military employees are a different matter.
This brings us to a further, reenforcing reason why we
decline to read the Veterans' Act to protect reemployment
rights
in
former
military positions. The courts have long been
reluctant to interfere with internal military decisionmaking,
including
personnel decisions. With only rare exceptions, the
courts
have
taken
the
view that assignments within the military
structure
are matters to be decided by the military and not by
the courts. See Orloff v. Willoughby, 345 U.S. 83, 93-94
(1953). The reasons are too obvious to need elaboration.
In some situations, this view is expressed by deeming a
controversy to be nonjusticiable, Wright v. Park, 5 F.3d 586,
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589-91
(1st
Cir. 1993); in others, it takes the form of giving
great deference to the military's judgment on the matter at
hand. Richenberg v. Perry, 97 F.3d 256, 261 (8th Cir. 1996).
But the underlying notion is that matters of military
organization,
personnel and operations are extremely sensitive
and that courts will do more harm than good by interfering.
Congress
can
provide otherwise by statute, but rarely does so.
Thus, we conclude that Veterans' Act protections do not
extend to affording anyone reemployment rights in a military
position. However generously the Veterans' Act may be
construed to protect prior civilian employment, Tilton v.
Missouri P.R.R., 376 U.S. 169, 181 (1964), Congress did not
intend
that
anyone
should have a preemptive claim to his former
position as an air force pilot or an army tank commander.
Whether the plaintiffs' positions in the Puerto Rico National
Guard
drug
interdiction program should be viewed as sharing in
this
"military" character is a different issue to which we now
turn.
It
is
clear
from section 112 and the orders issued to the
plaintiffs that their participation in the drug interdiction
program
was
the
performance of "full-time National Guard duty."
The
drug
interdiction
statute, 32 U.S.C. S 112(b), provides for
Guard personnel to perform such National Guard duty "under
section 502(f)" to carry out drug interdiction; and section
502(f)
allows Guard members to be ordered to perform "training
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or other duty" in addition to assembly for drills and
encampment.
The
orders
issued to the plaintiffs made reference
to section 502(f) and, in certain cases, section 503 which is
a companion provision involving joint exercises with the army
or the air force.
In addition, the evidence shows that the plaintiffs were
participating in the drug interdiction program pursuant to
military
orders and were subject to the command and control of
Guard
officers.
Indeed,
it appears likely that the plaintiffs'
full-time
positions
in
the drug interdiction program might have
allowed
them
to claim reemployment rights in any civilian jobs
they
held
at
the
time
they entered upon full-time duty. See 38
U.S.C. S 2024(c)(d); id. S 101(22)(C). In all events, full-
time National Guard duty by a Guard member under military
orders appears to us quintessentially military in character.
It
is
quite
true that the physical tasks performed by the
plaintiffs could have been, and commonly were, performed by
customs
officers
who
were not in military service. But this is
common: one can be a cook or a pilot or a radio operator in
either military or civilian life. National Guard members
called to duty to build up the dikes in a flooded area are
still part of the military even though they are engaged in
construction work. Given Congress' intent to protect prior
civilian jobs for those serving in the military, it is the
nature
of
the employment--not its functions--that is decisive.
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The same result follows from extrinsic policy. It would
directly offend the tradition of non-interference in military
assignments for a court to direct that the plaintiffs be
restored to performing specific functions as National Guard
members assigned to full-time duty in the drug interdiction
program. The Puerto Rico National Guard cited as reasons for
its reshuffling of personnel "unity of command" and "rank."
The
plaintiffs
say
that
these objectives could have been met by
a
different
reorganization that retained their jobs; but making
these evaluations is just what courts are reluctant to do.
It remains to refer briefly to cases involving Guard
employees governed by the National Guard Technicians Act of
1968, 32 U.S.C. S 709. These technicians are "full-time
civilian
employees
of
the National Guard" who are also, in most
cases, required to hold "concurrent National Guard membership
as a condition for their civilian employment." H.R. Rep. No.
90-1823, at 2 (1968). E.g., Wright, 5 F.3d at 587 (full-time
aircraft maintenance specialist).
In
a
number
of
cases,
a
National Guard technician has been
called to active service and forced to surrender his civilian
technician duties with the Guard. The question has arisen
whether this technician position is protected under the
Veterans'
Act
after
active duty ends. One district court ruled
in
favor
of
coverage, although it assumed rather than analyzed
the statutory-coverage issue, and several other courts have
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been willing to assume such coverage in denying th
technician's reemployment protection on other grounds.2
H
arguendo e
ow
this
court
would
decide such a case is unclear. There
is language in Wright v. Park that would lean against
protection, although the rights claimed by the technician in
that
case
were not under the Veterans' Act but under the Civil
Rights
Act,
42 U.S.C. SS 1983, 1985, and the federal and state
whistle-blower statutes. On the other hand, a passing
reference in the new reemployment statute that has supplanted
the Veterans' Act may give some support to National Guard
technicians who claim reemployment protection. See 38 U.S.C.
S 4304(4)(B); see also H.R. Rep. No. 103-65, at 21 (1994).
However such cases might be decided, we think that National
Guard technicians are clearly distinguishable from the
plaintiffs in this case.
National Guard technicians are employed full-time by the
Guard in a civilian capacity. In this respect, they are
arguably protected under the Veterans' Act like any other
civilian
employees
of
a
federal or state military organization.
The difficulty, where such civilian positions are tied to
membership in the National Guard, is that reinstatement would
require either that the military tie-in be waived or that a
2See Witter v. Pennsylvania Nat'l Guard, 462 F. Supp.
299, 305-06 (E.D. Pa. 1978); see also Polos v. United States,
621 F.2d 385, 389-90 (Ct. Cl. 1980); Leistiko v. Secretary of
Army,
922 F. Supp. 66, 76 (N.D. Ohio 1996).
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military position also be made available. The issue was
avoided in Witter because plaintiff in that case no longer
sought reemployment but merely monetary compensation. 462 F.
Supp. at 306.
In
any
event, the plaintiffs in the present case were not
employed
as
technicians with the curious dual capacity of that
position: full-time civilian employment with an adjunct
military role. The plaintiffs' only status was as "full-time
National Guard" members assigned, under a state plan approved
by the Secretary of Defense, to work under military orders in
the drug interdiction program. Even assuming that this court
might
follow
Witter
and
extend protection to technicians--which
is far from clear--this would not affect our decision in the
present case that the plaintiffs are not protected by the
Veterans' Act.
To
this
point, we have said little about the new federal
statute
which, as of October 1994, supplants the Veterans' Act
and provides a new framework for reemployment rights of
veterans.
This new statute does not apply to the present case
and is not direct evidence of the intent of the Congress that
enacted the Veterans' Act. But the new statute is in certain
respects
a
reenactment
of the Veterans' Act in somewhat clearer
language,
and
it
would
certainly be deserving of mention if the
new
version
were
strongly favorable either to the plaintiffs or
the defendants.
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The
fact
is
that the new statute carries forward the same
ambiguity
in
literal language that afflicts the Veterans' Act.
It protects, subject to certain conditions, "any person whose
absence
from
a
position
of employment is necessitated by reason
of service in the uniformed services . . . ." About the most
to be said is that the new statute provides that "full-time
National
Guard duty" is included in the definition of "service
in the uniformed services," 38 U.S.C. S 4303(13), reenforcing
our view that the plaintiffs here passed over to the military
domain
when
they
accepted full-time National Guard duty as part
of the drug interdiction program.
Affirmed.
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