Kise v. Department of Military & Veterans Affairs

784 A.2d 253, 2001 Pa. Commw. LEXIS 715
CourtCommonwealth Court of Pennsylvania
DecidedSeptember 28, 2001
StatusPublished
Cited by4 cases

This text of 784 A.2d 253 (Kise v. Department of Military & Veterans Affairs) is published on Counsel Stack Legal Research, covering Commonwealth Court of Pennsylvania primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Kise v. Department of Military & Veterans Affairs, 784 A.2d 253, 2001 Pa. Commw. LEXIS 715 (Pa. Ct. App. 2001).

Opinions

FLAHERTY, Judge.

Galen E. Rise’s (Rise) filed a Petition for Review of his termination as a member of the Active Guard/Reserve (AGR) program.1 The Department of Military and Veterans Affairs (Department) and the Adjutant General of Pennsylvania’s (Adjutant General) filed a Motion to Dismiss. We deny the Department’s Motion to Dis[255]*255miss and remand this matter to the Department for further action.

On May 25, 2000, Kise petitioned this Court to review the Department’s decision to involuntarily separate Kise from the Active Guard/Reserve (AGR) program. The Department contends the Adjutant General’s separation determination was a federal action beyond our jurisdiction because the Adjutant General was acting in his federal capacity, under federal regulation, to dismiss a federal employee and asks this Court to conclude that it lacks jurisdiction to consider this matter.2 The Department’s contention presents an issue of first impression in Pennsylvania. While this Court has previously exercised jurisdiction over an adjudication of the Department and the Adjutant General brought by a National Guard member, jurisdiction over the administration of the AGR program has not been addressed. See e.g., Prewitt v. Department of Military Affairs, 686 A.2d 858 (Pa.Cmwlth.1996). We conclude that this Court does have jurisdiction.

We first turn to whether a member of the National Guard in the AGR program is a federal employee as opposed to a state employee. We begin with a brief overview of the National Guard’s dual status:

The Army and Air National Guard of the United States, collectively the National Guard of the United States (NGUS), are part of the “Ready Reserve,” units whose availability for active duty are most relied upon. The NGUS receives all of its funding from Congress and forms an integral part of the total armed forces of the United States. To become a member of the NGUS, a person must enlist in, and be federally recognized as a member of, the National Guard of a particular state. Since 1938, all persons who have enlisted in a state National Guard unit have simultaneously enlisted in the NGUS. Under this “dual enlistment” system, guardsmen, when not on active duty in the NGUS, are state employees of their respective state National Guard units.

Maj. Michael E. Smith, Federal Representation of National Guard Members in Civil Litigation, Army Law. 42-43 (Dec.1995) (footnotes omitted). “[T]he members of the State Guard .... must keep three hats in their elosets-a civilian hat, a state militia hat, and an army hat-only one of which is worn at any particular time.” Perpich v. Department of Defense, 496 U.S. 334, 348, 110 S.Ct. 2418, 110 L.Ed.2d 312 (1990). The type of duty the member is performing determines which “hat” he or she has on:

federally funded ARNG training duty, referred to as “Title 32 duty,” is ordered by the state governor and paid for with federal funds. This form of duty is used for weekend drills, annual training, and most schools and assignments within the United States. Most National Guard duty falls into this category. Conversely, “Title 10 duty” is duty ordered by the President or the Secretary of the Air Force under the authority of federal law and paid for with federal funds. This form of duty is used for basic (initial) military training, overseas training missions, and occasions when the Guard is called or ordered to active duty (mobilized) by the U.S. Government. ARNG members are not subject to the UCMJ [256]*256unless they are performing Title 10 duty.

Maj. Grant Blowers, et al, Disciplining the Force Jurisdictional Issues in the Joint and Total Force, 42 A.F.L. Rev 1, 8 (1997).

We conclude that Kise’s status, while serving full-time National Duty under 32 U.S.C. § 502(f), was as a member of the State militia and not as a federalized soldier.3 Given this status, Kise was a State employee. See A.R. 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.”);4 Department of Military and Veterans Affairs v. Bowen, 953 P.2d 888, 899 (Alaska 1998) (member serving in the AGR program was a state employee and subject to state National Guard statutes and regulations); U.S. ex rel. Karr v. Castle, 746 F.Supp. 1231, 1237 (D.Del.1990), withdrawn in part, 768 F.Supp. 1087 (D.Del.1991), aff'd sub nom., U.S. v. Carper, 22 F.3d 303 (3d Cir.1994) (“The intent of Congress was, and is, that National Guard personnel serving in the ‘Full Time Manning Program’ now included in a DOD [Department of Defense] program called Active Guard and Reserve (AGR) serve under 32 U.S.C. § 502(f) in conventional National Guard status, i.e., under State control as opposed to service in the active military service of the United States in Reserves of the Army or Reserves of the Air Force status.”); H.R.Rep. No. 691, 98th Cong., 2d Sess. pp. 242, 243 (1984), U.S.Code Cong. & Admin.News 1984 pp. 4174, 4201-4201 (“The Congress has always intended that such personnel [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.”); Op. Comp. Gen. of the U.S., dated December 7, 1992, 1992 WL 373552 at *2 (“Thus, members of the Active Guard/Reserve ordered to duty under 32 U.S.C. 502(f) remain under the command and control of state authorities although they may be paid out of funds [257]*257appropriated by Congress”). As the Supreme Court observed in Maryland v. United States, 381 U.S. 41, 48, 85 S.Ct. 1293, 14 L.Ed.2d 205 (1965), remanded on other grounds, 382 U.S. 159, 86 S.Ct. 305, 15 L.Ed.2d 227 (1965):

It is not argued here that military members of the Guard are federal employees, even though they are paid with federal funds and must conform to strict federal requirements in order to satisfy training and promotion standards. Their appointment by state authorities and the immediate control exercised over them by the States make it apparent that military members of the Guard are employees of the States, and so the courts of appeals have uniformly held.

Id (emphasis added).

Next, we consider whether the Adjutant General was acting in a federal or State capacity. The Adjutant General is appointed by the Governor with the advice and consent of the Senate. 51 Pa.C.S. § 901(a).

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Related

Kise v. Department of Military
832 A.2d 987 (Supreme Court of Pennsylvania, 2003)
Moore v. Pennsylvania Department of Military & Veterans Affairs
216 F. Supp. 2d 446 (E.D. Pennsylvania, 2002)
Kise v. Department of Military & Veterans Affairs
784 A.2d 253 (Commonwealth Court of Pennsylvania, 2001)

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784 A.2d 253, 2001 Pa. Commw. LEXIS 715, Counsel Stack Legal Research, https://law.counselstack.com/opinion/kise-v-department-of-military-veterans-affairs-pacommwct-2001.