ROSEMARY LEDET, Judge.

This is a workers' compensation case. The sole issue presented is whether the workers' compensation judge ("WCJ") erred in finding the appellants, three National Guardsmen (the "Guardsmen") who were injured while on active duty in New Orleans after Hurricane Katrina,1 lack a right of action under La. R.S. 23:1211 and thus granting summary judgment in favor of the defendant, the State of Louisiana. Finding the Guardsmen have a right of action, we reverse and remand.

FACTUAL AND PROCEDURAL BACKGROUND

In anticipation of the imminent landfall of Hurricane Katrina, Governor Kathleen Babineaux Blanco issued a proclamation declaring a state of emergency on August 26, 2005. In two subsequent proclamations, Governor Blanco extended the state of emergency to November 24, 2005. At Governor Blanco's request, the National Guard was ordered into the New Orleans area. Initially, the National Guard was activated under state active duty. However, at Governor Blanco's request, Gordon England, acting Secretary of the Army and Acting Secretary of the Air Force, by memorandum dated September 7, 2005, approved "[f]ederal funding for use of the National Guard in Title 32 U.S.Code status to support Hurricane Katrina disaster relief efforts retroactive to August 29, 2005."

During the state of emergency (on November 6, 2005), the Guardsmen were injured in a motor vehicle accident in New Orleans. The accident occurred when the HMMWV in which the Guardsmen were riding collided with another vehicle. The driver of the other vehicle died at the scene; the Guardsmen suffered personal injuries. The Guardsmen applied for and received federal benefits for the injuries they sustained in the accident. In August 2009, the Guardsmen each filed a disputed claim for compensation with the Louisiana Department of Labor, Office of Workers' Compensation seeking special compensation benefits pursuant to La. R.S. 23:1211. In response, the State filed a peremptory exception of no right of action.2 In March 2010, the WCJ consolidated the Guardsmen's actions and denied the State's exception of no right of action. This court denied the State's writ applications.3 Thereafter, the State filed a motion for summary judgment, which the WCJ granted. This appeal followed.

DISCUSSION

The standard of review in this case is de novo. Smith v. Our Lady of the Lake Hosp., Inc., 93-2512, p. 26 (La.7/5/94), 639 So.2d 730, 750 (holding that a de novo standard applies in reviewing a trial court's decision granting summary judgment); Fortier v. Hughes, 09-0180, p. 2 (La.App. 4 Cir. 6/17/09), 15 So.3d 1185, 1186 (holding that "[p]eremptory exceptions raising the objection of no right of action are reviewed de novo on appeal as they involve questions of law.")

The sole issue on appeal is whether the WCJ erred in granting the State's motion for summary judgment on the basis that the Guardsmen lack a right of action under La. R.S. 23:1211. At the time of the accident in question,4 La. R.S. 23:1211 provided as follows:

The Guardsmen contend that they meet all the requirements set forth in La. R.S. 23:1211: they were injured while on active duty during a state of emergency declared by the governor. The Guardsmen point out that the Legislature, in enacting La. R.S. 23:1211, did not qualify the receipt of benefits on either a lack of Title 32 status or a lack of receipt of federal benefits. Citing McGee v. State, 502 So.2d 121 (La.App. 4 Cir.1986), the Guardsmen further point out that this court expressly declined to read into La. R.S. 23:1211 a qualification based on a lack of receipt of federal benefits. The Guardsmen thus contend that the trial court erred in finding they lack a right of action.

The State counters that pursuant to La. R.S. 23:1211(B), the Guardsmen lack a right of action because they were injured "while in the service of the United States of America." According to the State, the Guardsmen lost their state service status when they were called into federal service under federal law, Title 32. Given that the Guardsmen were injured while on federal-Title 32 duty, were paid federal benefits, and were federal employees, the State contends that the Guardsmen are not entitled to state workers' compensation benefits. In support, the State cites 10 U.S.C. § 12602(b)(2),5 which defines active duty-Title 32 status as federal service. The State also cites the Federal Tort Claims Act, 28 U.S.C.A. § 2671 ("FTCA"),6 which defines a National Guard member in Title 32 status as a federal employee. The State also cites La. R.S. 29:23.1 and Wells v. State Through Military Dep't, 524 So.2d 778 (La.App. 3rd Cir.1988), as recognizing this distinction.

The State submits that it is illogical to classify a National Guard member serving in Title 32 status as a federal employee subject to the FTCA when a third party is injured, but as a state employee eligible for state workers' compensation benefits when the National Guard's member himself or herself is injured. According to the State, the most important proof it submitted in support of its motion for summary judgment was the deposition testimony of one of the Guardsmen (Mr. Williams) that the Guardsmen were "on federal orders and we were actually commissioned to carry weapons, wear body armor." The State thus contends that the trial court correctly found the Guardsmen lack a right of action under La. R.S. 23:1211.

In order to have a right of action under the applicable law (La. R.S. 23:1211 as it read in November 2005), the Guardsmen were required to prove five factors: (1) that they were national guard members, (2) who were accidentally injured, (3) while on active duty, (4) during a state of emergency declared by the governor, and (5) while not "in the service of the United States of America or going to or returning from this service." For purposes of the State's motion for summary judgment the only element disputed was the fifth one: whether the Guardsmen were in federal service.

Although a National Guard member in Title 32 status is defined by statute as a federal employee for the purpose of receiving federal benefits and for determining FTCA coverage, these statutory definitions are inapposite to the issue presented in this case of whether the Guardsmen were in state (not federal) service and thus entitled to state workers' compensation benefits. The issue is one of state law regarding the meaning of the state workers' compensation statute. Because this is a legal issue, the State's reliance on the deposition testimony of one of the Guardsmen as establishing their federal service status is misplaced.

It is undisputed that the Guardsmen were serving in Title 32 status at the time of the accident. Title 32 status is one of three legally distinct statuses under which a National Guard member may be called into duty. The other two statuses are state active duty and federal Title 10 status. Explaining these three statuses in his report regarding the response to Hurricane Katrina, Lawrence Kapp, Specialist in National Defense; Foreign Affairs, Defense and Trade Division, stated:

CRS Report for Congress: Hurricane Katrina: DOD Disaster Response, (9/9/05) at pp. 6-9 (available at http://www.fas.org/sgp/crs/natsec/RL_33095.pdf)(Emphasis supplied).

At the time of the accident, the Guardsmen were serving in Title 32 status under the command of the Governor of Louisiana. The dispositive issue is whether Title 32 status is federal service, i.e., "in the service of the United States of America," under La. R.S. 23:1211(B). The phrase "in the service of the United States of America" has been in La. R.S. 23:1211 since it was originally enacted in 1968 and appeared in former La. R.S. 29:39 (1950), which La. R.S. 23:1211 replaced. This phrase, however, is not defined in the statute. To determine the meaning of this phrase an analysis of the constitutional and statutory background of the National Guard is required.

The National Guard is a "hybrid" organization. United States v. Hutchings, 127 F.3d 1255, 1258 (10th Cir.1997). It includes "two overlapping but distinct organizations"—the National Guard of the individual States and the National Guard of the United States of America. Perpich v. Department of Defense, 496 U.S. 334, 345, 110 S.Ct. 2418, 110 L.Ed.2d 312 (1990). Explaining the National Guard's dual enlistment requirement, the Supreme Court in Perpich noted that "[s]ince 1933 all persons who have enlisted in a State National Guard unit have simultaneously enlisted in the National Guard of the United States." Id. Citing various provisions of Title 10 of the United States Code, the Supreme Court further noted that "Congress has by distinct statutes provided for activating the National Guard of the United States and for calling forth the militia, including the National Guards of the various States." Id. at 350 n. 21, 110 S.Ct. 2418. The Supreme Court still further noted that during the period of active federal duty, "[t]he state affiliation is suspended in favor of an entirely federal affiliation." Id. at 349, 110 S.Ct. 2418.

National Guard members are not in the service of the United States "unless and until ordered to active duty" or federalized. Clark v. United States, 322 F.3d 1358, 1366 (Fed.Cir.2003)(quoting Perpich, 496 U.S. at 345, 110 S.Ct. 2418). "[A] National Guard member is only on federal `active duty' as a member of the United States Army when called to federal service pursuant to Title 10." Baccus v. N.C. Dep't. of Crime Control and Public Safety, 195 N.C. App. 1, 13, 671 S.E.2d 37, 44 (2009). Not until "that triggering event occurs does a Guardsman become a part of the Army and lose his status as a state serviceman." Gilbert v. United States, 165 F.3d 470, 473 (6th Cir.1999) (quoting United States v. Hutchings, 127 F.3d 1255, 1258 (10th Cir.1997)).

To demonstrate the basic concept that a National Guard member is in state service and retains his or her state service status except when formally called into federal service, the Supreme Court in Perpich provided the following "hat" analogy: all National Guard members "must keep three hats in their closets—a civilian hat, a state militia hat, and an army hat—only one of which is worn at any particular time." Perpich, 496 U.S. at 348, 110 S.Ct. 2418. The issue of whether a National Guard member is in federal or state service status turns on "which `hat' (state militia or Army) is being worn." Steven B. Rich, The National Guard, Drug Interdiction and Counterdrug Activities and Posse Comitatus: The Meaning and Implications of "in Federal Service," 1994 Army Law. 16, 40 (hereinafter "Rich").

In Gilbert, supra, the court addressed the issue of whether the use of National Guard members serving in Title 32 status as part of an anti-drug task force violated the Posse Comitatus Act. The Act prohibits the use of the federal army to perform civil law enforcement functions. Because the Act only applies to National Guard members called into federal service, the dispositive issue in Gilbert was whether the National Guard members were in federal service. The criminal defendant argued that since the National Guard members were serving in full-time capacity under Title 32 and were being compensated with federal funds they were in federal service. Rejecting that argument, the court reasoned:

Gilbert, 165 F.3d at 473. The court thus held that the National Guard members were not in federal service and that the Act did not apply.

In the instant case, the State makes a similar argument that because the Guardsmen were activated under Title 32, a federal law, and received federal benefits they were in federal service. Rejecting that argument, we note, as the commentator cited in Gilbert points out, that "[a]lthough one might argue that the federal funding and resources, federal statutory and regulatory authority, and certain federal protections and benefits make the Guard a de facto federal organization, the constitutional and legal separation remains clear." Rich, supra at 43. While the Guardsmen were in Title 32 status, the duty they were performing was "in the capacity of the state National Guard, and this remains true regardless of resourcing by the federal government." Id.; see also Hutchings, supra. (noting that a National Guard member's Title 32 status demonstrates his assignment is "a state-controlled, not a federal, assignment.")

Based on the above background, we construe the phrase "in the service of the United States" in La. R.S. 23:1211(B) to mean a National Guard member serving in a purely federal status under Title 10, i.e., wearing an "army hat." Because the Guardsmen were not "in the service of the United States," they have a right of action under La. R.S. 23:1211.

DECREE

For the forgoing reasons, the judgment of the workers' compensation judge granting the State's motion for summary judgment is reversed; and this matter is remanded for further proceedings.

REVERSED AND REMANDED