Association of Civilian Technicians, Inc. v. U.S.

Decision Date04 March 2009
Docket NumberCivil Action No. 07-1747 (CKK).
Citation601 F.Supp.2d 146
PartiesASSOCIATION OF CIVILIAN TECHNICIANS, INC., et al., Plaintiffs, v. UNITED STATES of America, et al., Defendants.
CourtU.S. District Court — District of Columbia

Daniel McCrea Schember, Gaffney & Schember, PC, Washington, DC, for Plaintiffs.

Lanny James Acosta, Jr., U.S. Attorney's Office, Washington, DC, for Defendants.



Plaintiffs Daniel Romero Cruz, Juan A. Velez Soto, Domingo Hernandez Dones, and Kenneth Colon Ayala, along with the Association of Civil Technicians, Inc. and Laborers' International Union of North America ("Plaintiffs")1 bring this action for declaratory and injunctive relief against Defendants, the United States of America, Pete Geren in his official capacity as Secretary of the Army ("Secretary"), and General Craig R. McKinley in his official capacity as Chief of the National Guard Bureau2 ("NGB," collectively with the United States of America and the Secretary, "Defendants"). Plaintiffs are former military members of the Puerto Rico Army National Guard ("PRANG") and former dual status National Guard technicians employed by the PRANG. Each of the Plaintiffs was administratively separated from the PRANG by the Adjutant General of Puerto Rico and consequently was also automatically separated from his employment as a dual status National Guard technician. The Secretary, acting through the Army Board for Correction of Miliary Records ("ABCMR" or "Board"), found that each Individual Plaintiff had been separated from the PRANG in violation of federal regulations. Defendants determined, however, that as federal agencies they lacked the authority to require the State National Guard to reinstate Plaintiffs and therefore recommended (rather than ordered) that the Adjutant General of Puerto Rico retroactively reinstate each Individual Plaintiff in the PRANG. Puerto Rico officials, however, refused to reinstate Plaintiffs, as recommended.

Plaintiffs filed the instant lawsuit alleging that Defendants in fact have the authority both to order Puerto Rico officials to reinstate Plaintiffs into the Army National Guard ("ARNG") and to correct Plaintiffs' National Guard records to show that they were never discharged. According to Plaintiffs, Defendants' refusal to do so is therefore arbitrary, capricious, and otherwise in violation of the law.3 Currently pending before the Court are Defendants' [6] Motion to Dismiss, or in the Alternative, Motion for Summary Judgment and Plaintiffs' [9] Cross-Motion for Summary Judgment. Upon a searching review of the parties' submissions, the administrative record, applicable case law as well as statutory and regulatory authority, the Court shall GRANT Defendants' [6] Motion to Dismiss as to Plaintiffs' claims for mandamus relief pursuant to 28 U.S.C. § 1361, shall GRANT Defendants' Motion in the Alternative for Summary Judgment as to Plaintiffs' remaining claims brought pursuant to the APA, and shall DENY Plaintiffs' [9] Cross-Motion for Summary Judgment, for the reasons that follow.


To better understand Plaintiffs' allegations, it is useful to first understand the somewhat complex organization of the National Guard as well as the unique position of a dual status National Guard technician. Accordingly, the Court shall briefly provide an overview of the National Guard organization and the National Guard Technician Act, before then turning to the specific factual allegations at issue in the instant case.

A. General Factual Background
1. Structure of the National Guard

The National Guard is a component of the organized militia of the United States and incorporates both the Army National Guard and the Air National Guard. 10 U.S.C. § 101(c). The National Guard is an "unique military force in that each unit within the Guard is responsible to two governments, one local (here, the Commonwealth of the Puerto Rico) and the other federal, i.e., that of the United States." Penagaricano v. Llenza, 747 F.2d 55, 56 (1st Cir.1984), overruled in part on other grounds by Wright v. Park, 5 F.3d 586, 590-91 (1st Cir.1993); see also Perpich v. Dep't of Defense, 496 U.S. 334, 345-346, 110 S.Ct. 2418, 110 L.Ed.2d 312 (1990). That is, the National Guard consists of "two overlapping but distinct organization"(1) the National Guard of the various states4 and (2) the National Guard of the United States. Perpich, 496 U.S. at 345, 110 S.Ct. 2418 (internal quotation marks omitted).

All fifty states and Puerto Rico have their own National Guard. Jorden v. Nat'l Guard Bureau, 799 F.2d 99, 101 (3rd Cir.1986). "In each state, the Guard is a state agency, under state authority and control." Charles v. Rice, 28 F.3d 1312, 1315 (1st Cir.1994). "The governor and his or her appointee, the Adjutant General, command the Guard in each state." Id. At issue here is the ARNG unit of Puerto Rico, known as the PRANG. The ARNG is defined by statute as "that part of the organized militia of the several States and Territories, Puerto Rico, and the District of Columbia, active and inactive, that (A) is a land force; (B) is trained, and has its officers appointed, under the sixteenth clause of section 8, article I, of the Constitution; (C) is organized, armed, and equipped wholly or partly at Federal expense; and (D) is federally recognized." 32 U.S.C. § 101(4).

Pursuant to the National Guard's "dual enlistment" system, all persons who enlist in a State National Guard unit also simultaneously enlist in the National Guard of the United States, a distinct federal military organization. See Penagaricano, 747 F.2d at 56; see also Perpich, 496 U.S. at 345-56, 110 S.Ct. 2418. Accordingly, every member of the PRANG is concurrently enlisted in the Army National Guard of the United States ("ARNGUS"), which is a component of the Ready Reserves of the United States Armed Forces and is composed of the federally recognized ARNG units of the various States. See Perpich, 496 U.S. at 345-56, 110 S.Ct. 2418; see also 32 U.S.C. § 101(5).

Because of the hybrid nature of the National Guard and the fact that each member of a State National Guard is also a member of the National Guard of the United States and may be activated to federal status at anytime, the federal government is authorized to prescribe regulations and issue orders to organize, discipline and govern the National Guard. See 32 U.S.C. § 110; see also Charles, 28 F.3d at 1315. In exchange for following the regulations, the State National Guard receive federal recognition, arms, equipment and funding. See 32 U.S.C. §§ 101(4), 106, 107. "States that fail to comply with federal regulations risk forfeiture of federal funds allocated to organize, equip, and arm state Guards." Charles, 28 F.3d at 1315-16; see also 32 U.S.C. § 108.

2. National Guard Technicians

"The National Guard Technician Act of 1968 is a special act of Congress enacted for the limited purpose of making fringe and retirement benefits of federal employees and coverage under the Federal Tort Claims Act available to National Guard technician employees of the various states." Am. Fed. of Gov't Employees v. F.L.R.A., 730 F.2d 1534, 1536-37 (D.C.Cir. 1984). "It accomplishes this by creating a dual status for such technicians." Id. at 1537. Specifically, National Guard technicians are considered to be federal employees for some purposes—i.e., for purposes of federal employee benefits and coverage under the Federal Tort Claims Act—but are also members of the respective State National Guard units where they serve. Id.

As the D.C. Circuit has emphasized, "[s]ince technicians are members of the state National Guard, Congress was careful to recognize the authority of the state." Id. In particular, Congress provided that the Secretary is directed to designate that the relevant State's Adjutant General "employ and administer the technicians." 32 U.S.C. § 709(b). Accordingly, Congress provided that the State's Adjutant General is authorized to separate a technician from his or her technician employment at any time for cause and to accomplish any "reduction in force, removal, or an adverse action involving discharge from technician employment, suspension, furlough without pay, or reduction in rank or compensation." Id. at §§ 709(f)(2)-(3). As the D.C. Circuit summarized, "[it] thus appears that the scheme of the act is to create the technicians as nominal federal employees for a very limited purpose and to recognize the military authority of the states through their Governors and Adjutants General to employ, command and discharge them." Am. Fed. of Gov't Employees, 730 F.2d at 1537-38.

In addition, Congress also specifically required that technicians be members of their State National Guard and that, in the event a technician is "separated from the National Guard," the individual "shall be promptly separated from military technician (dual status) employment by the adjutant general" of the relevant state. 32 U.S.C. at §§ 709(b), (f)(1); see also Ass'n of Civilian Technicians v. F.L.R.A., 250 F.3d 778, 780 (D.C.Cir.2001) ("The National Guard Technician Act of 1968, 32 U.S.C. § 709(b), provides that, as a condition of civilian employment, technicians must, inter alia, be members of the National Guard and hold the military grade specified by the Secretary concerned."). In addition, Congress provided that a right of appeal from any such action taken by the state adjutant general "shall not extend beyond the adjutant general of the jurisdiction concerned." 32 U.S.C. § 709(f)(4).

3. The ABCMR and the NGB

The ABCMR is composed of civilians who evaluate service-members' claims of error or injustice in their military records. Dickson v. Secretary of Defense, 68 F.3d 1396, 1399 (D.C.Cir.1995). The ABCMR derives its authority from 10 U.S.C. § 1552(a)(1), which provides in relevant part that:


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