443 F.Supp. 451 (N.D.Fla. 1977), MCA 76-42, Peel v. Florida Dept. of Transp.

Docket NºMCA 76-42.
Citation443 F.Supp. 451
Party NameFrederick D. PEEL, Plaintiff, v. FLORIDA DEPARTMENT OF TRANSPORTATION, Tom B. Webb, Jr., as Secretary, Florida Department of Transportation, Defendants.
Case DateMarch 31, 1977
CourtUnited States District Courts, 11th Circuit, Northern District of Florida

Page 451

443 F.Supp. 451 (N.D.Fla. 1977)

Frederick D. PEEL, Plaintiff,

v.

FLORIDA DEPARTMENT OF TRANSPORTATION, Tom B. Webb, Jr., as Secretary, Florida Department of Transportation, Defendants.

No. MCA 76-42.

United States District Court, N.D. Florida

Mar. 31, 1977.

Page 452

Donald S. Modesitt, Asst. U.S. Atty., Northern Dist. of Florida, Tallahassee, Fla.,

Page 453

Stuart E. Schiffer, Guy B. Arthur, Attys., Dept. of Justice, Civ. Div., Washington, D. C., William H. Berger, U.S. Dept. of Labor, Officer of the Sol., Washington, D. C., for plaintiff.

George L. Waas, Atty., State of Florida, Dept. of Transp., Tallahassee, Fla., for defendants.

MEMORANDUM OF DECISION AND ORDER

STAFFORD, District Judge.

Plaintiff in this action alleges that his rights under the Veterans' Reemployment Rights Act, 38 U.S.C. s 2021 et seq. (hereinafter VRR Act) have been violated by the defendant.

Defendant has filed a motion to dismiss, and both plaintiff and defendant have filed motions for summary judgment. The motions came on for hearing, and oral arguments were presented by counsel for both parties. Following oral argument, the parties submitted a Stipulation of Facts for the record. The court finds that there are no genuine disputes as to the material facts in this case.

I. The Facts

Plaintiff was a permanent full-time employee of the defendant for more than 31/2 years. The defendant, Florida Department of Transportation (hereinafter Florida DOT), was and continues to be an agency of the State of Florida and exercises its authority and carries out its functions within the jurisdiction of this court. Prior to September 5, 1975, plaintiff used 14 of the 17 days allotted annually for military leave under s 115.07 of the Florida Statutes. These 14 days were used for Reserve Duty. On August 27, 1975, plaintiff received orders, issued pursuant to 32 U.S.C. s 505, which ordered plaintiff to Full Time Training Duty with the National Guard for the period September 9, 1975 to November 6, 1975. Plaintiff requested a military leave of absence for this 59-day period. This request was denied; nevertheless plaintiff reported as ordered to Ft. Benning, Georgia.

Plaintiff's last day of actual employment with defendant was September 5, 1975. In accordance with Florida Department of Administration Rule 22 A-7.10(B), plaintiff was deemed to have abandoned his position by virtue of his absence for three consecutive workdays without authorized leave. On September 16, 1975, defendant advised plaintiff that he had been fired. Plaintiff completed his training with the National Guard on November 6, 1975. On the next day, plaintiff applied for reemployment with the defendant, at which time his application was denied. Such refusal to reemploy the plaintiff has continued to the present time.

II. Veterans' Reemployment Rights Act

Section 2021 of the VRR Act applies to any person who leaves a position, other than a temporary position, with the United States Government or its political subdivisions (s 2021(a)(A)) or with a State or its political subdivisions (s 2021(a)(B)) for training and service in the Armed Forces. The thrust of s 2021 is unquestionably the protection of reemployment rights to persons who have been inducted into the Armed Forces. 1 Defendant argues that s 2021 applies only to inductees who have trained and served in the Armed Forces.

The scope of the VRR Act is not restricted to inductees of active military service, as the following language in s 2021(b)(3) makes clear:

"Any person who holds a position described in Clause (A) or (B) of subsection (a) of this section shall not be denied retention in employment or any promotion or other incident or advantage of employment because of any obligation as a member of a Reserve component of the Armed Forces." (emphasis added)

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In addition, s 2024 enumerates the wide range of individuals who are accorded the reemployment protections of the VRR Act. Subsection (a) of s 2024 provides protection to enlistees; subsection (b)(1) provides protection to persons called to active duty, other than for the purpose of determining physical fitness and other than for training; subsection (b)(2) provides reemployment protection to Reserve members who voluntarily or involuntarily enter active duty. Subsection (c) grants reemployment rights to Reservists who serve an initial period of active duty for training of not less than three consecutive months. Subsection (d) protects employees of the United States or a State who leave their positions to be inducted into the Armed Forces or to undergo pre-induction physical examinations. The enumerated categories in s 2024, along with its title "Rights of persons who enlist or are called to active duty; Reserves", reinforces plaintiff's contention that the VRR Act is not limited to inductees.

The plaintiff in this case, as a former employee of the Florida DOT, falls within the terms of s 2024(d) as well as s 2021(b)(3). Section 2024(d) states:

"Any employee not covered by subsection (c) of this section who holds a position described in clause (A) or (B) of section 2021(a) 2 shall upon request be granted a leave of absence by such person's employer for the period required to perform active duty for training or inactive duty training in the Armed Forces of the United States. Upon such employee's release from a period of such active duty for training or inactive duty training, . . . such employee shall be permitted to return to such employee's position with such seniority, status, pay, and vacation as such employee would have had if such employee had not been absent for such purposes." (emphasis supplied).

For purposes of s 2024(d), full-time training or other full-time duty performed by a member of the National Guard under 32 U.S.C. s 505 is considered active duty for training. 38 U.S.C. s 2024(f). Plaintiff, as a member of the National Guard, received his orders for Full Time Training Duty pursuant to 32 U.S.C. s 505; therefore his absence from employment was for "active duty for training" within the terms of s 2024(d). The court finds both s 2021(b)(3) and 2024(d) are applicable to plaintiff.

Plaintiff succinctly explains the legislative history of the VRR Act, and specifically the intent behind s 2021(b)(3) and 2024(d). 3 The Selective Training and Service Act of 1940 originally established veterans' reemployment right. 4 However, the 1940 Act did not provide employees of States and political subdivisions the means of enforcing their rights. In 1974, Congress amended the VRR Act to "extend full coverage to veterans who were employed by States and their political subdivisions." 5

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Section 2021(b)(3) was added to the VRR Act to "prevent reservists and National Guardsmen not on active duty . . . from being discriminated against because of their Reserve membership." 6 Section 2024(d) was designed to accommodate those trainees who were absent from employment for "special training or instruction periods that may last 30, 60, or 90 days." 7

The VRR Act guarantees certain reemployment rights which all States must uniformly comply with. The States are free to establish additional rights or protections for State or local employees than those provided by the VRR Act. See 38 U.S.C. s 2021(a). However, they are not free to impose restrictions on the reemployment rights granted by the VRR Act. Therefore, in accordance with s 2024(d), plaintiff should have been granted his request for military leave of absence, regardless of restrictions imposed by s 115.07 of the Florida Statutes. Defendant should have reemployed plaintiff on November 7, 1975 with such seniority, status, and salary as if plaintiff had not been absent.

The jurisdiction of this court is conferred by 38 U.S.C. s 2022, entitled "Enforcement procedures." This section of the VRR Act reveals Congress' unequivocal intent that this court be the forum for the determination of plaintiff's reemployment rights. 8 Furthermore, under s 2022, this court is authorized, and does hereby order, the Florida DOT to reinstate the plaintiff to his former position and to compensate him for loss of wages or other benefits accruing since November 7, 1975, when defendant refused to reemploy plaintiff.

III. The War Powers

The parties in this case have argued that the statutory rights accruing to a National Guardsman under 38 U.S.C. s 2021(b)(3) and 2024(d) flow exclusively from different provisions of the Constitutional War Powers. Defendant contends that the above sections of the VRR Act were passed pursuant to Art. 1, s 8, cl. 16, and that this clause reserves to the States sole authority over the militia. Article I, s 8, cl. 16 states that Congress has the power:

To provide for organizing, arming and disciplining, the Militia, and for governing such Part of them as may be employed in the Service of the United States, reserving to the States respectively, the Appointment of the Officers, and

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the Authority of training the Militia according to the discipline prescribed by Congress.

The plaintiff contends that Congress' power to enact general laws concerning the National Guard and Reservists, including the granting of reemployment rights, flows from Art. I, s 8, cl. 12 of the Constitution. That clause gives Congress the power to "raise and support Armies." For purposes of this case, the court need not decide which clause is the constitutional basis for the reemployment rights granted to plaintiff. Both clauses reflect Congress' power of ultimate control over the militia, now recognized as the National Guard, and the active Armed Forces. Art. I, s 8, cl. 16 reserves to the States the authority to train the National Guard "according to the discipline prescribed by Congress." The power to "raise and support Armies" under Art. I, s 8, cl. 12 is not only one of the most important powers of Congress, but is also broad and sweeping. Johnson...

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