Tirado-Acosta v. Puerto Rico Nat. Guard

• Decision Date: 03 June 1997
• Docket Number: TIRADO-ACOSTA,No. 96-2213,96-2213
• Citation: 118 F.3d 852
• Parties: 155 L.R.R.M. (BNA) 2798, 133 Lab.Cas. P 10,004 Roberto, et al., Plaintiffs, Appellants, v. PUERTO RICO NATIONAL GUARD, et al., Defendants, Appellees. . Heard
• Court: U.S. Court of Appeals — First Circuit

Page 852

118 F.3d 852

155 L.R.R.M. (BNA) 2798, 133 Lab.Cas. P 10,004

Roberto TIRADO-ACOSTA, et al., Plaintiffs, Appellants, v. PUERTO RICO NATIONAL GUARD, et al., Defendants, Appellees.

No. 96-2213.

United States Court of Appeals, First Circuit.

Heard June 3, 1997.

Decided July 9, 1997.

Rafael F. Castro Lang, San Juan, PR, with whom F. Castro Amy was on brief, for appellants.

Sylvia Roger Stefani, Assistant Solicitor General, Department of Justice, Guaynabo, PR, with whom Carlos Lugo Fiol, Solicitor General, and Edda Serrano Blasini, Deputy Solicitor General, were on brief, for appellees.

Before SELYA, Circuit Judge, CYR, Senior Circuit Judge, and BOUDIN, Circuit Judge.

BOUDIN, Circuit Judge.

Plaintiffs in this action, all members of the Puerto Rico National Guard, were called to active duty in the Persian Gulf War. Prior to active duty and briefly upon their return, they were employed full-time in a National Guard program to assist in drug interdiction. Not long after their return, the plaintiffs' assignment to this program was terminated by the Puerto Rico National Guard. When the plaintiffs sued, the district court ruled that they had no statutory right to reemployment in such a program. We affirm.

The basic facts are not in dispute. The Puerto Rico National Guard, like the National Guards in all 50 states, is a hybrid organization. National Guards are ordinarily under the control of state (or, in the case of Puerto Rico, Commonwealth) officials, but are organized pursuant to federal statute, and in war time or other emergencies, Guard units may be brought under federal control. See U.S. Const., art. I, sec. 8, cl. 16; 32 U.S.C. § 101, et seq.

In 1989, Congress authorized federal funding to permit the local National Guards to support drug interdiction and other counter-drug activities. 32 U.S.C. § 112. Section 112 provided that each state desiring to participate would draw up its own plan subject to approval by the Secretary of Defense. Despite this and other authority over the program granted to the Secretary of Defense, the statute required that the National Guard personnel involved in these operations be under local control and "not in Federal service," id. § 112(c)(1), a requirement apparently designed to mesh with the Posse Comitatus Act, 18 U.S.C. § 1385, limiting the use of federal troops for domestic law enforcement purposes.

Most National Guard members ordinarily serve only part time, but there are exceptions. Section 112 itself provided that subject to Secretary of Defense regulations, local National Guard members could, pursuant to a state plan, "be ordered to perform full-time National Guard duty under section 502(f) of this title for the purpose of carrying out drug interdiction and counter-drug activities." 32 U.S.C. § 502(f) allows National Guard personnel to be assigned additional duties, apart from ordinary drills and field exercises, with the provision appropriate for "pay and allowances."

Beginning in 1989, the Puerto Rico National Guard used the federal funds provided under section 112 for a variety of counter-drug projects. In one of the projects, Puerto Rico National Guard personnel assisted the U.S. Customs Service in inspecting cargo containers arriving and leaving Puerto Rico ports and airports. Each of the plaintiffs in this case is a Puerto Rico National Guard member who was assigned to work full-time in 1989 to 1990 in this phase of the counter-drug program. Minor variations aside, each plaintiff worked under orders couched in the following terms:

You are ordered to Active Duty special work (ADSW) for the period indicated plus allowable travel time. Upon completion of the period of ADSW unless sooner relieved or extended by proper authority you will return to the place where you entered ADSW and are relieved from such duty.

According to the memorandum of understanding between the Puerto Rico National Guard and the Customs Service, "National Guard personnel employed in support of [the Customs Service] for counter-drug operations will be under the command of, and directly responsible to their military chain of command." The memorandum also said that "all missions will be executed through the military chain of command; i.e., tactical direction of the troops ... will be left solely to the National Guard Officers in Charge/Noncommissioned Officer in Charge."

Thus, the plaintiffs working in the drug interdiction program were ultimately commanded and controlled by Puerto Rico National Guard officers, and they were paid for their work by the Puerto Rico National Guard from funds provided by the federal government. However, much of the plaintiffs' day-to-day work was directed by Customs Service officials. The work itself did not entail the use of any specialized military skill but consisted mainly of unloading and reloading cargo containers or inspecting their contents.

The plaintiffs' pay and allowances for full-time National Guard duty in the program were substantial (e.g., $1,400 to $2,000 per month). Each plaintiff worked under orders assigning him such duty for a relatively brief period, ranging from 2 days to 61 days, but the orders were regularly renewed. At trial the plaintiffs testified that they believed that these orders would be renewed indefinitely so long as funding for the drug interdiction program continued. They said that they had been given assurances that they would not be dismissed unless they failed to perform their work satisfactorily.

In January 1991, all of the plaintiffs were called into active service on account of the Persian Gulf War and left their positions in the drug interdiction program. The plaintiffs completed their active federal military duty in early July 1991 and were reassigned by the Puerto Rico National Guard to the drug interdiction program for the period July 11, 1991 to September 30, 1991. On October 1, 1991, the plaintiffs were released from full-time duty in the program, and their positions taken by other Guard personnel.

In September 1992, the plaintiffs brought suit in federal district court in Puerto Rico seeking reinstatement and back pay. The principal claim brought against the Puerto Rico National Guard "and/or the United States of America" was that defendants had violated the plaintiffs' rights under the Veterans' Reemployment Rights Act ("the Veterans' Act"), then codified at 38 U.S.C. § 2021 et seq., by not retaining them in their full-time drug-interdiction positions following their return from the Gulf War. The United States was later dismissed as a defendant. ¹

The Puerto Rico National Guard moved to dismiss the complaint on several grounds, including failure to state a claim, non-justiciability, Eleventh Amendment immunity, non-exhaustion of administrative remedies, and untimeliness. The district court deemed most of these defenses lacking in merit; and it said that the merits could not be resolved without developing a factual record. Accordingly, after discovery, the district court conducted a bench trial in August 1995 and heard testimony from both sides.

In a written decision issued August 16, 1996, the district court dismissed the complaint. It ruled that the plaintiffs did not have reemployment rights under the Veterans' Act because their drug interdiction positions were "military in nature" and therefore beyond the statute's intended coverage; the court did not reach or resolve the defendants' alternative statutory defense that the plaintiffs be excluded from coverage because their posts were "temporary." See 38 U.S.C. § 2021(a). The district court entered judgment for the defendants, and this appeal followed.

In our view, the district court was clearly right in its construction of the federal statute, and we affirm on that ground without addressing other defenses. Where the result would be the same, this court has often rejected claims on the merits without resolving possible jurisdictional objections. Hachikian v. FDIC, 96 F.3d 502, 506 n. 4 (1st Cir.1996). Here, the case ought to be decided promptly, in view of the delay already suffered by the plaintiffs, and the legal issue is one that can be decided definitively only by a federal court.

We begin with the terms of the Veterans' Act. This statute, enacted in 1978, carried forward the policy that Congress first adopted in 1940 to provide employment protection for veterans returning from military service. Monroe v. Standard Oil Co., 452 U.S. 549, 554-55, 101 S.Ct. 2510, 2513-14, 69 L.Ed.2d 226 (1981). Although the Veterans' Act has itself been superseded by a new enactment--the Uniform Services Employment and Reemployment Act, 38 U.S.C. § 4301 et seq.--the new statute applies only to reemployments initiated on or after October 13, 1994. 110 Stat. 3336.

The Veterans' Act main section granting reemployment rights is 38 U.S.C. § 2021, which provides protection for anyone "inducted into the Armed Forces of the United States" under the selective service statute. A companion section, 38 U.S.C. § 2024, extends similar protection, by cross-reference back to section 2021, to several other classes of persons including reservists and others called to "active duty (other than for the purpose of determining physical fitness and other than for training)...." Concededly, the plaintiffs were called to active duty in 1991.

Section 2021(a) provides that an inductee (or by cross-reference a reservist called to active duty) "who leaves a position (other than a temporary position) in the employ of any employer" is entitled to reemployment if sought within 90 days after release from the military. The conditions and obligations vary somewhat depending on whether the prior employer was governmental or private, but it is common ground that the statute protects prior employment by the federal government, the states, and the Commonwealth of Puerto Rico. See 38 U.S.C. § 2021(a); id. § 101(20) (defining the Commonwealth as a state for this purpose).

Although the...