U.S. Supreme Court Asked to Consider Justiciability of Discrimination Complaints Under the National Guard Technician’s Act

Two petitions for certiorari have been filed in the United States Supreme Court from the 8th and 9th Circuits, respectively, Wetherill v. Secretary of the Army et al., Docket No. 10-638 here Search, and Zuress v. Secretary of the Air Force, Docket No. 10-374 here, Search.

The “et al.” in the Wetherill case happens to be a significant difference in the two petitions and the potential issues that may be addressed if the Supreme Court grants.

Wetherill involves a discrimination case arising out of a National Guard Technician’s complaint that she was discriminated against as a member of the South Dakota National Guard, and thus, by extension, by the Adjutant General of the South Dakota National Guard, and by further extension the state of South Dakota.  The National Guard Technicians Act (the NGTA), 32 USC § 709, governs the employment and administration of members of the respective states’ National Guard units employed to assist with the support, maintenance and administration of the state’s national guard.

The Zuress case arises out of a discrimination claim by an Air Reserve Technician, a federal employee of the Air Force under 10 USC § 10216(a), against the Secretary of the Air Force.

The circuit courts in both cases ruled that federal courts do not have jurisdiction with respect to Title VII discrimination complaints arising out of command decisions regarding management, discipline, supervision, and control over military members who are “dual-status technicians” (DST’s).

These two decisions followed several other federal circuit courts around the country that have applied the rule that discrimination claims under Title VII are either nonjusticiable or barred by the Feres doctrine from proceeding in federal courts on jurisdictional grounds.

However, the Wetherill case in the 8th Circuit directly addresses DST’s under the NGTA, and those other circuits that have had occasion to rule on such complaints and have determined that they are non-justiciable in federal courts are correct for additional reasons than that provided by the 9th Circuit in Zuress.

The United States Constitution, legislation and case law addressing discrimination complaints by DSTs under the NGTA require that such claims be nonjusticiable and therefore terminate within the respective states’ National Guards, and particularly with their Adjutants General.  The NGTA was promulgated by Congress to insure that members of the National Guard who serve  as federally funded technicians would receive benefits similar to those enjoyed by civilian federal employees.  However, due to the unique nature of Title 32 DSTs, they must be and remain members of their state’s National Guard before they can be entitled to the benefits conferred upon them by the NGTA.

This unique nature is rooted in the fundamental concept of federalism that is ingrained in the U.S. Constitution.  The states, in agreeing to enter into that charter, surrendered not one jot or tittle of their sovereignty when it came to the orderly administration and maintenance of their respective militia, i.e., the National Guard units within a respective state’s national guard when not in federalized military service.  Not only is this one of the “inherent attributes of sovereignty” retained by the States per the Tenth Amendment, but too, it is one that is expressly reserved to them by the Second Amendment militia clause.  Even those Justices on the current Supreme Court that might disagree that the Second Amendment contains and “individual” right, they all agree that, if anything, the amendment preserves the individual states’ rights to maintain an organized militia.  This is evident not only in the writings that preceded the Constitution, but too it has pervaded judicial decisions related to the subject since.

This “additional” layer of “sovereignty” enjoyed by the state national guards when not in federalized military service makes the Wetherill decision fundamentally different in scope and significance.

Article I agencies, i.e., the EEOC and Article III courts simply do not have jurisdiction to review and pass upon the merits of employment decisions made with respect to NGT DST’s because the last right of appeal appropriately resides in the respective state’s adjutant general.

Thus, where discrimination complaints arise out of command decisions regarding management, discipline, supervision, and control over military members, such complaints begin and terminate within the respective state National Guard and particularly with that state’s Adjutant General.  See 32 U.S.C. § 709(f).  Thus, such decisions are nonjusticiable and Article I agencies and Article III courts have no authority to adjudicate them.

In fact, the Sixth Circuit has specifically considered Title VII discrimination complaints by Title 32 DSTs in the National Guard, repeatedly finding these claims to be nonjusticiable and stating that “[e]very court having occasion to consider the capacity of National Guard technicians has determined that capacity to be irreducibly military in nature.” Leistiko v. Stone, 134 F.3d 817, 821 (6th Cir. 1998) (quoting Leistiko v. Sec’y of the Army, 922 F. Supp. 66, 73 (N.D. Ohio 1996) (internal citations omitted). Because “the National Guard is ‘irreducibly military,’” an “executive decision by an adjutant general to relieve a Guard officer of command is simply an adverse personnel action.” Fisher v. Peters, supra at 439 (6th Cir. 2001).

Therefore, “guard technicians’ challenges to discharge by the Guard and termination from technician employment are nonjusticiable because judicial review would seriously impede the military in performance of its vital duties.” Id. (quoting Bradley v. Stump, 971 F. Supp. 1149, 1156 (W.D. Mich. 1997)). Accordingly, dual-status technicians who present nonjusticiable claims “must pursue military channels for relief.” Fisher, supra at 443 (explicitly ruling that “a military transfer is nonjusticiable in part because ‘transfer decisions go to the core deployment of troops and overall strategies of preparedness.’” (internal citations omitted).

In fact, this is consistent also with the National Guard Bureau’s adoption of a dual system of regulations to address “military” discrimination complaints and “civilian” military complaints.  Under the former, the terminus of the discrimination complaint is the respective states’ Adjutants General, consistent with the non-applicability of Title VII to these Title 32 DSTs and the NGTA.  These regulations allow appeals of the Adjutant General’s decision to the National Guard Bureau.  In practice, however, the bifurcated “military” and “civilian” regulatory system continues to be misused or ignored.  Thus, where any alleged act of discrimination can be claimed to have arisen out of a civilian aspect of a Title 32 DST’s job, the Title VII apparatus can be utilized to thwart and destroy the exercise of the state’s sovereign rights to command and control the direction and strength of its military forces.  Once acknowledged as available to a Title 32 DST, Title VII claims fall within the jurisdiction of the EEOC, who impose significant resource strains and monetary liability upon the States, and are subject to enforcement, adjudication, and ultimately review by federal courts.  These “federal” consequences are unavoidable, regardless of whether or not the true originating decision was an exercise of an Adjutant General’s retained and exclusive authority on behalf of the State over the latter’s military forces.

The very fact that this system improperly leaves open the ability of a federal agency or a federal court to inquire into whether or not the decision was preliminarily “civilian” or “military” defeats the entire purpose of asserting lack of jurisdiction (and the reasons why such jurisdiction should not be exercised).  At best, a court having concluded that it does not have jurisdiction over some or all of the claims, may still send the matter back to the EEOC for a determination of whether or not those claims are “civilian” or “military” in nature, an intensive and invasive factual inquiry in and of itself that does nothing to ease the burden of having to administratively litigate civilian EO claims brought by Title 32 DSTs.  At worst, courts hold that these Title VII claims are justiciable, adding even greater burden to the already burgeoning caseloads.

Discretion is inherent in the military decision-making process and the types of discrimination that are justiciable in a purely “civilian” context are precisely the types of decisions that must be made in a military context.

Interestingly, or perhaps expectedly, the petitioner in Wetherill barely touched upon the fact that 32 USC § 709, and the regulations promulgated pursuant thereto actually governs the disposition of the case, as opposed to 10 USC § 10216(a).  The petitioner glosses over this because it is fatal to her case.  Unfortunately, only the federal government has responded, although South Dakota will have an opportunity to write a separate respondent’s brief if the petition is granted.  The two petitions are below.



There is definitely a split in the circuits on this issue and it does not appear to be going away anytime soon.  There is the added complexity that comes with dealing with the separate state arguments where a discrimination complaint is lodged by a National Guard Technician, as opposed to a federal reserve technician.

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