Kise v. DEPARTMENT OF MILITARY

• Decision Date: 25 September 2003
• Citation: 832 A.2d 987,574 Pa. 528
• Parties: Galen E. KISE v. DEPARTMENT OF MILITARY and Veterans Affairs and the Adjutant General of Pennsylvania. Appeal of Department of Military and Veterans Affairs.
• Court: Pennsylvania Supreme Court

832 A.2d 987

574 Pa. 528

Galen E. KISE v. DEPARTMENT OF MILITARY and Veterans Affairs and the Adjutant General of Pennsylvania.

Appeal of Department of Military and Veterans Affairs.

Supreme Court of Pennsylvania.

Submitted November 14, 2002.

Decided September 25, 2003.

Mary Catherine Frye, Harrisburg, for amicus curiae U.S. Department of Justice.

Eclemus Wright, Kenneth Scott Roy, Michael Clark Barrett, James M. Sheehan, Annville, for Department of Military and Veterans Affairs.

Edward George Smith, Wendy Ann Nicolosi, for Galen E. Kise.

Before CAPPY, Cheif Justice, and CASTILLE, NIGRO, NEWMAN, SAYLOR, EAKIN and LAMB, JJ.

OPINION

Justice SAYLOR.

In this appeal, we consider the availability and appropriate breadth of state appellate review of a military personnel action in the form of an involuntary separation for cause from the "Active Guard/Reserve" program of the Army National Guard and Army Reserve.

For fifteen years, Appellee Staff Sergeant Galen Kise ("Kise") served as an enlisted member of the National Guard of the United States ("NGUS") and the Pennsylvania Army National Guard ("PAARNG)",¹ on full-time active service pursuant to Section 502(f), Title 32, of the United States Code, 32 U.S.C. § 502(f), as part of the Active Guard/Reserve ("AGR") program. The AGR is instituted and administered by, and subject to the direction of, the federal government; its purpose is to provide highly qualified officer and enlisted personnel to support the Army National Guard and Army Reserves, generally in positions related to organizing, administering, recruiting, instructing or training. See Army Regulation ("AR") 135-18, at ¶¶ 1-5, 3-1(c). See generally United States ex rel. Karr v. Castle, 746 F.Supp. 1231, 1237 n. 4 (D.Del.1990)

("The AGR program created a new status of military personnel dedicated to the full-time support of the National Guard[;][t]he creation of the AGR program is part of an increasing emphasis on the use of Reserves to augment active forces."), modified, 768 F.Supp. 1087 (D.Del.1991). During his service in the AGR, Kise was paid by the federal government, wore the uniform of the active United States Army, and was subject to numerous regulations promulgated by the federal Department of the Army and the adjunct of it and the Department of the Air Force, the National Guard Bureau.

Effective in May of 2000, Kise was separated from AGR service for cause (asserted misconduct) by order of the Adjutant General of Pennsylvania (the "Adjutant General"), following an investigation conducted pursuant to the provisions of AR 15-6, and National Guard Regulation ("NGR") 600-5.² Pursuant to the regulations, Kise received notice of the investigation report and was permitted to submit a written response with the assistance of counsel from the Judge Advocate General's Corps; however, the regulations do not require a hearing as a prerequisite to separation, and none was afforded to Kise. Parenthetically, according to the Adjutant General, no action was taken to remove Kise from his position in PAARNG, of which he apparently remained an active member. Kise subsequently filed a petition for review in the Commonwealth Court pursuant to Section 763 of the Judicial Code, 42 Pa.C.S. § 763, and Chapter 15 of the Pennsylvania Rules of Appellate Procedure, governing direct appeals from Commonwealth agencies, together with an application for a stay. Kise contended, inter alia, that he was not advised of the predicate claims of wrongdoing or permitted to participate in the military's investigation; the investigation and separation determination were fraught with error and lacking in due process; and the Adjutant General abused his discretion in concluding that Kise had engaged in misconduct and violated NGR 600-5. Kise therefore requested that the separation order be set aside.

In response, the Commonwealth of Pennsylvania, Department of Military and Veterans Affairs and the Adjutant General (collectively, the "Department") filed a motion to dismiss Kise's petition for review. The Department contended that the separation was federal in nature and therefore beyond the jurisdiction of the state courts, as the Adjutant General acted in a federal capacity, pursuant to federal regulations, to terminate the participation of a federal employee in a military program subject to pervasive federal regulation. Further, the Department addressed the requirement of the Pennsylvania Rules of Appellate Procedure that it certify a record in connection with the appeal, see Pa.R.A.P.1952, via an affidavit from the Adjutant General indicating that relevant documents were of a federal character and subject to corresponding national retention directives. The Adjutant General attested that he had asked the responsible federal officials to provide such documentation as could be made available to the court within the bounds of the applicable federal laws and regulations. Various documents were then provided by the PAARNG human relations officer, including the report of investigation, Kise's rebuttal, documentation reflecting various official reviews and recommendations, and a record of the Adjutant General's approval of Kise's separation.

Initially, the Commonwealth Court granted the stay requested by Kise, via single-judge order. Subsequently, Kise filed a petition for adjudication of civil contempt, contending that the Department violated the stay order by failing to restore him to his full-time AGR position. Following argument, however, the Commonwealth Court denied relief on the contempt petition and vacated the stay, again by single-judge order, citing serious concerns regarding its jurisdiction. Subsequently, the en banc Commonwealth Court considered the motion to dismiss and issued a divided opinion and order denying the relief requested by the Department, directing the Department to certify an adequate record, and indicating the court's intention to conduct merits review of several of the issues implicated by Kise's appeal. See Kise v. Department of Military and Veterans Affairs, 784 A.2d 253 (Pa.Cmwlth. 2001)

.

The majority opened its discussion by noting that the Commonwealth Court previously had exercised jurisdiction over an adjudication of the Department challenged by a National Guard soldier, see id. at 255 (citing Prewitt v. Department of Military Affairs, 686 A.2d 858 (Pa.Cmwlth.1996)); however, it also observed that the availability and scope of state appellate jurisdiction as concerns the administration of the AGR program had not been addressed in that opinion. See id. In its evaluation of jurisdiction, the majority first addressed whether a member of the National Guard serving in the AGR program is a federal, as opposed to a state, employee. In this regard, the majority examined the National Guard's dual enlistment scheme, in which, as noted, a soldier enlists both in the National Guard of the United States and the state militia, see Kise, 784 A.2d at 255

(citing Maj. Michael E. Smith, Federal Representation of National Guard Members in Civil Litigation, 1995-DEC ARMY LAW. 41, 42-43; see also supra note 1, and highlighted that, at any particular time, the member serves in one or the other of these capacities, rather than functioning in both simultaneously. See Kise, 784 A.2d at 255 (citing Perpich, 496 U.S. at 348, 110 S.Ct. at 2426-27 ("[T]he members of the State Guard ... 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."))). The majority observed that most duty assignments performed by National Guard members (weekend drills, annual training, and most training and other assignments within the United States), denominated "Title 32 duty," is undertaken in a state status directed by the Governor, albeit that it is paid for with federal funds. See Kise, 784 A.2d at 255 (citing Maj. Grant Blowers, et al., Disciplining the Force—Jurisdictional Issues in the Joint and Total Force, 42 A.F.L.REV. 1, 8 (1997)). Furthermore, it distinguished strictly federal service that is ordered by the President or the Secretary of the Army under the authority of federal laws, "Title 10 duty," such as basic military training, overseas training missions, and mobilization of the National Guard by the United States Government. See id.

The Commonwealth Court majority concluded that Kise's status in the AGR was as a member of the state militia and not as a federalized soldier; therefore, at the time of his discharge, Kise was a state employee. In this respect, the Commonwealth Court cited, inter alia, the salient Army regulation, see AR 135-18, ch. 3-1.c (June 19, 1996) ("Personnel of the ARNGUS serving an AGR tour under the provisions of 32 U.S.C. § 502(f)(2) ... serve in a State status."), and commentary associated with relevant legislative amendments, see H.R.Rep. No. 691, 98th Cong., 2d Sess. pp. 242, 243 (1984), reprinted in 1984 U.S.C.C.A.N. 4174, 4201-4202 ("The Congress has always intended that [National Guard personnel serving in a full-time duty status] should remain under the control of State National Guard authorities rather than the federal government."). The majority also determined that the Adjutant General acted in a state capacity in separating Kise from the AGR program, based on the Adjutant General's position as a Commonwealth official. Although acknowledging the Adjutant General's responsibility to administer federal laws and regulations, the majority nonetheless deemed it controlling that this is accomplished pursuant to state law authorization. See Kise, 784 A.2d at 258-59

.

Next, the majority rejected the Department's contention that, since Kise's cause of action is based on federal regulations, jurisdiction over his claims resides exclusively in the United States district courts, reasoning that, under the national scheme of dual sovereignty, state courts are competent to adjudicate claims arising under the laws of the United...