ASSOCIATION OF CIVILIAN TECHNICIANS, INC. v. US

• Citation: 603 F.3d 989
• Decision Date: 30 April 2010
• Docket Number: No. 09-5153.,09-5153.
• Parties: ASSOCIATION OF CIVILIAN TECHNICIANS, INC., et al., Appellants v. UNITED STATES of America, et al., Appellees.
• Court: United States Courts of Appeals. United States Court of Appeals (District of Columbia)

603 F.3d 989

ASSOCIATION OF CIVILIAN TECHNICIANS, INC., et al., Appellants
v.
UNITED STATES of America, et al., Appellees.

No. 09-5153.

United States Court of Appeals, District of Columbia Circuit.

Argued February 9, 2010.

Decided April 30, 2010.

603 F.3d 990

Daniel M. Schember argued the cause and filed the briefs for appellants.

Kathryn A. Donnelly, Special Assistant U.S. Attorney, argued the cause for appellees. With her on the brief was R. Craig Lawrence, Assistant U.S. Attorney. Lanny J. Acosta, Jr., Special Assistant U.S. Attorney, entered an appearance.

Before: ROGERS and TATEL, Circuit Judges, and WILLIAMS, Senior Circuit Judge.

Opinion for the Court by Circuit Judge ROGERS.

Concurring opinion by Senior Circuit Judge WILLIAMS.

ROGERS, Circuit Judge:

Four former civilian technician members of the Puerto Rico Army National Guard ("PRANG") joined two labor organizations (collectively the "Guardsmen") in contending the district court erred in upholding the policy and practice of the United States, the Secretary of the Army, and the Chief of the National Guard Bureau (collectively "the United States") of recommending, rather than ordering, reinstatement of discharged members of a state National Guard.¹ The Guardsmen contend such authority is plainly conferred by 32 U.S.C. § 110, which authorizes the President to "govern" and "issue orders" to a state National Guard. The plain text does not address reinstatement. The United States' interpretation of its enforcement powers is consistent with the text read in light of the Militia Clause of the United States Constitution and the statutory scheme and represents a reasoned judgment of its relationship with the states' National Guard. Accordingly, we affirm the grant of summary judgment to the United States.

I.

The Guardsmen had dual status, by virtue of working as civilian technicians, which required them to be members of a state National Guard. 32 U.S.C. § 709(b)(2). Upon being notified of their proposed discharge from PRANG, pursuant to Puerto Rico Regulation 635-100 on involuntary separation, either the Guardsmen or their unit commanders filed rebuttals. However, U.S. Army Regulation 135-178 on administrative separations required PRANG to notify the Guardsmen in writing of their right to request a hearing by an administrative board. None of

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the Guardsmen received this notice or appeared before an administrative board prior to their discharges. Instead, after filing rebuttals, they received honorable discharges from PRANG and were transferred to the Army Reserves or the Retired Reserves, depending on their length of service

The Guardsmen appealed their discharges to the Army Board for Correction of Military Records ("the Board") requesting that their National Guard records be corrected to show they were never discharged and they were not absent without leave when PRANG was activated after Hurricane George. The Board found that the discharges violated federal regulations, which required both notice of a right to a hearing or appearance before an administrative board prior to discharge for persons with over six years of service, and the approval of the discharge by the Chief of the National Guard Bureau in the Department of Defense for any soldiers with over eighteen but less than twenty years of service.² Concluding the discharges were therefore erroneous and unjust, but that it lacked authority to order the Guardsmen's reinstatement in PRANG, the Board recommended that the Adjutant General of Puerto Rico amend the discharge orders, reinstate the Guardsmen with all pay, allowance, and retirement points, and correct PRANG records to show they were not discharged. The Board ordered the correction of U.S. Army Reserves records to reflect the Guardsmen's proper amount of service in PRANG, assuming no discharge. PRANG declined to reinstate the Guardsmen. The Guardsmen thus remained in the U.S. Army Reserves following their discharges from PRANG but automatically lost their civilian technician jobs because they were no longer members of PRANG.

The Guardsmen filed suit, seeking declaratory and injunctive relief that the United States' "ongoing policy and practice" of refusing to order reinstatement of Guardsmen and correction of state National Guard records and related relief was "based on an erroneous belief of lack of authority." Compl. ¶ 1. The district court ruled the Guardsmen's claim was cognizable under the Administrative Procedure Act ("APA"), 5 U.S.C. § 706, and that the United States' interpretation of its authority was reasonable and entitled to deference, granting summary judgment to the United States. Ass'n of Civilian Technicians, Inc. v. United States, 601 F.Supp.2d 146 (D.D.C.2009). The Guardsmen appeal, and our review of the grant of summary judgment is de novo. See Fontana v. White, 334 F.3d 80, 81 (D.C.Cir.2003).

II.

The Guardsmen focus on 32 U.S.C. § 110, which provides: "The President shall prescribe regulations, and issue orders, necessary to organize, discipline, and govern the National Guard." They contend section 110 plainly authorizes the President to govern the PRANG, which necessarily includes the power to enforce federal regulations on discharge procedures. Because Congress placed this authority in the Secretary of the Army acting through the Board, see 3 U.S.C. §§ 301, 302; 10 U.S.C. § 1552, the Guardsmen maintain that section 110's authorization to "govern" and "to issue orders" means the Board can order reinstatement and correction of PRANG records where separation from PRANG violated federal regulations. The Guardsmen do not challenge the federal relief granted by the Board.

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The United States responds that it has interpreted "govern" in section 110 to authorize regulations and orders that apply generally to all the states' National Guard while leaving control of the day-to-day operations to the states. It maintains that its interpretation is due deference under Chevron, U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984). The United States does not explain on what basis the court might conclude Congress intended the Board's interpretation of a statute to be accorded the force of law, see United States v. Mead Corp., 533 U.S. 218, 226-27, 121 S.Ct. 2164, 150 L.Ed.2d 292 (2001), and the record does not indicate that the Board's interpretation of section 110 was adopted in a rulemaking or formal adjudication; the Board's rules of procedure call for informal proceedings, see 32 C.F.R. § 581.3, and the provisions of the Administrative Procedure Act on adjudications do not apply to "the conduct of military ... functions," 5 U.S.C. § 554(a)(4). However, it is undisputed that the United States' "policy and practice" is longstanding, and under the circumstances the court considers counsel's explanation of the statutory basis for the denial of the full relief sought by the Guardsmen to represent the United States' "fair and considered judgment." Ass'n of Bituminous Contractors, Inc. v. Apfel, 156 F.3d 1246, 1252 (D.C.Cir.1998). We conclude, regardless of the standard of review, that the denial of full relief to the Guardsmen was correct. See Fontana, 334 F.3d at 82.

We look to the text of the statute, recognizing that words are to be read in the context in which they are used and in the broader context of the statutory scheme. See, e.g., Robinson v. Shell Oil Co., 519 U.S. 337, 341, 117 S.Ct. 843, 136 L.Ed.2d 808 (1997). The plain text of section 110 does not address the nature and extent of the United States' governance of the states' National Guard. Although it authorizes the United States to "govern," neither the text nor the context require that the word be given its most expansive meaning. The Militia Clause and the statutory scheme contemplate a shared responsibility for the National Guard, although the precise nature of that relationship is not always obvious. As the Fifth Circuit has observed, "in the modern-day federal scheme, the national guard has come to occupy a unique place. It has become, by design, a `hybrid' entity that carefully combines both federal and state characteristics,...