Frey v. State of Cal.

• Decision Date: 05 January 1993
• Docket Number: No. 91-16162,91-16162
• Citation: 982 F.2d 399
• Parties: 60 Fair Empl.Prac.Cas. (BNA) 958, 60 Empl. Prac. Dec. P 41,966, 61 USLW 2437 Archer FREY, Plaintiff-Appellant, v. STATE OF CALIFORNIA; State of California Military Department, Defendants-Appellees.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 399

982 F.2d 399

60 Fair Empl.Prac.Cas. (BNA) 958,

60 Empl. Prac. Dec. P 41,966, 61 USLW 2437

Archer FREY, Plaintiff-Appellant, v. STATE OF CALIFORNIA; State of California Military Department, Defendants-Appellees.

No. 91-16162.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted July 22, 1992.

Decided Jan. 5, 1993.

Leo F. Donahue, Gold River, CA, for plaintiff-appellant.

S. Michelle Inan, Deputy Atty. Gen., Oakland, CA, for defendants-appellees.

Appeal from the United States District Court for the Eastern District of California.

Before CANBY, REINHARDT, and LEAVY, Circuit Judges.

LEAVY, Circuit Judge:

Archer Frey appeals from the district court's dismissal of his action alleging that the California National Guard violated the

                Age Discrimination in Employment Act (ADEA), 29 U.S.C. §§ 621-634, by requiring him to separate from active duty on his sixtieth birthday pursuant to Section 167 of the California Military and Veterans' Code.   Frey filed this action against the State of California and the State of California Military Department seeking, inter alia, a judicial declaration that section 167 violated the ADEA.   In granting the state's motion to dismiss for failure to state a claim, Fed.R.Civ.P. 12(b)(6), the district court held that the military departments of the states, when taking actions affecting active duty officers of the state national guard, are not "employers" within the meaning of the ADEA
                

FACTS AND PROCEDURAL BACKGROUND

Archer Frey was a commissioned officer in the California National Guard on State Active Duty in the Office of the Adjutant General. He served in the State Guard from 1971 until 1991, when he was terminated under the authority of section 167, which contains a provision for mandatory retirement at age 60 for state active duty commissioned officers of the California National Guard who can no longer be called into active federal service. ¹ Frey's retirement from active service at age sixty comports with the mandatory retirement age for reserve officers of the United States Army below the rank of major general. See 10 U.S.C. § 3843.

In 1985, because he had attained 30 years of commissioned service, Frey lost federal recognition, the effect being that he ceased to be a member of the National Guard of the United States (Army National Guard). ² From 1985 until his mandatory retirement, Frey served only as a military officer in the California National Guard. See 32 U.S.C. § 323(a); Calif.Mil. & Vet.Code § 210. His job title during all relevant periods was Chief, Engineering Branch, and his rank at retirement was Colonel. Frey never served on active duty in the regular United States Army.

Frey's loss of federal recognition ³ meant he could no longer be called into active federal service. Notwithstanding the loss of federal recognition, as a member of the California National Guard on state active duty, Frey was subject to being called to duty 24 hours a day, seven days a week; he had no entitlement to compensatory time off; he was required to meet the same physical standards as prescribed for federally recognized National Guard members; and he wore a military uniform while on duty. Frey was exempt from the requirements of state civil service. See Cal.Const. art. VII, § 4(k). His pay and allowances were determined in accordance with those Prior to his sixtieth birthday, the State informed Frey that it intended to discharge him at the end of April 1991, under the authority of section 167. In response, Frey filed this action alleging four claims and seeking, inter alia, a declaration that the ADEA applies to him and section 167 violates the ADEA. The complaint also alleged that section 167 directly conflicts with the provisions of the ADEA, thereby violating the Supremacy Clause of the United States Constitution. In addition, he sought damages for the alleged age discrimination and a preliminary injunction to restrain the State defendants from forcing him to retire pending the outcome of this action. The district court denied his request for preliminary injunctive relief, and Frey did not appeal from that denial.

                of officers of the United States Army.  See Cal.Mil. & Vet.Code §§ 320, 340.   Discipline, if necessary, was determined according to the Federal Uniform Code of Military Justice, see id. at § 102, and he was subject to reassignment at will to any duty, or being called into active service in case of war, insurrection, rebellion, invasion, tumult, riot, breach of the peace, public calamity, catastrophe, or other emergency.   See id. at §§ 142, 146
                

The State then moved to dismiss under Fed.R.Civ.P. 12(b)(6) for failure to state a claim. In granting the State's motion, the district court held that the military departments of the states, when taking actions affecting uniformed active duty officers of the state national guard, are not included within the definition of "employer" as that term is defined under the ADEA, 29 U.S.C. § 630(b). The court went on to conclude that because this was a state employment action, taken under a state statute, it could not be preempted by federal law. Frey filed a timely appeal from the district court's dismissal.

STANDARD OF REVIEW

We review de novo a dismissal for failure to state a claim pursuant to Fed.R.Civ.P. 12(b)(6). Kruso v. International Tel. & Tel. Corp., 872 F.2d 1416, 1421 (9th Cir.1989), cert. denied, 496 U.S. 937, 110 S.Ct. 3217, 110 L.Ed.2d 664 (1990).

DISCUSSION

Frey characterizes his status as that of a state employee, defined by 28 U.S.C. § 630(f), rather than that of federal military personnel. He asserts that because the ADEA applies to state employees, see 29 U.S.C. § 630(b), he is eligible to claim the protection of the ADEA. Frey argues that the clear language of section 630(f) evinces Congress' intent to capture, with few exceptions, all state employees, including Civil Service employees, within the provisions of the ADEA. See 29 U.S.C. § 630(f). Frey claims that the four statutory exceptions must be narrowly construed and do not apply to him. Additionally, Frey maintains that section 167 violates the Supremacy Clause of the United States Constitution as it is in direct conflict with the ADEA.

A. Statutes

Section 623(a) provides in relevant part that: "[i]t shall be unlawful for an employer--(1) to fail or refuse to hire or to discharge any individual ... because of such individual's age...." 29 U.S.C. § 623(a). The term "employer" is defined by the ADEA to include "a State or political subdivision of a State." Id. at § 630(b). Similarly, section 633a extended the ADEA to protect federal employees as well. ⁴ Finally, section 630(f) of the ADEA defines the term "employee" as follows:

[A]n individual employed by any employer except that the term "employee" shall not include any person elected to public office in any State or political subdivision of any State by the qualified voters thereof, or any person chosen by such officer to be on such officer's personal staff, or an appointee on the policy making level or an immediate adviser with respect to the exercise of the constitutional or legal powers of the office. The exemption set forth in the preceding sentence shall not include employees subject to the civil service laws of a State government, governmental agency, or political subdivision....

29 U.S.C. § 630(f). Although, in 1986, Congress amended the ADEA in order to exempt state firefighters and law enforcement officers from the Act, see id. at §§ 623(j), 630(j), (k), no such exemption was provided for state military personnel.

B. Merits

Historically, our court has restricted its review of military decision making out of deference "to the special function of the military in our constitutional structure and in the system of national defense." Sebra v. Neville, 801 F.2d 1135, 1140-41 (9th Cir.1986); accord Gilliam v. Miller, 973 F.2d 760, 762 (9th Cir.1992); see also Gonzalez v. Department of Army, 718 F.2d 926, 930 (9th Cir.1983) (court declining to enter into an area of military expertise even in the face of a claim of intentional race discrimination). Although the California statute at issue in this case is not a traditional "military decision" similar principles apply when Congress or the states take actions affecting the militia.

Article I, section 8 of the United States Constitution explicitly grants Congress plenary authority over the military. See U.S. Const. art. I, § 8, cl. 12-16 (the "Militia Clauses"). One provision in the Militia Clauses confers upon Congress the power "[t]o 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." Id. at cl. 16. That provision, however, reserves to the states "the Appointment of the Officers, and the Authority of training the Militia according to the discipline prescribed by Congress." Id. The statutes and regulations governing the National Guard recognize the constitutional source of the states' power and refrain from intruding on it unnecessarily. See 32 U.S.C. § 324(b) ("the appointment of an officer of the National Guard may be terminated or vacated as provided by the laws of the State or Territory of whose National Guard he is a member"); 32 U.S.C.App. § 1101.5 ("The termination of the appointment of a commissioned officer of the National Guard is a function of the State authorities"); 32 U.S.C.App. § 1101.2(a)(1) ("Article 1, section 8, Clause 16, of the Constitution of the United States reserves to the States the appointment of officers in the militia"). Here, the state legislature, by way of Cal.Mil. & Vet.Code § 167, adopted a mandatory retirement provision that simply parallels the mandatory retirement age for reserve officers of the U.S. Army imposed by Congress. See 10 U.S.C. § 3843. Thus, the state statute at issue here involves a scope of activity--the appointment of state military officers--in which the states have...