Dual Status National Guard Technicians Should be Barred From Bringing Civil Suits Under Title VII

• Author: Major William E. Brown
• Pages: 04

DUAL STATUS NATIONAL GUARD TECHNICIANS SHOULD BE BARRED FROM BRINGING CIVIL SUITS UNDER TITLE VII

MAJOR WILLIAM E. BROWN1

1. Introduction

   At no time in our history has America depended more on dual status National Guard technicians (DSTs). The strength of the National Guard is derived from the caliber of these Citizen-Soldiers and Airmen who are employed as DSTs. Significant contributions by DSTs during the 9/11 al-Qaeda attacks on the United States and the 2005 Gulf Coast devastation wrought by Hurricanes Katrina and Rita prove that the National Guard remains an effective provider of well-trained, highly equipped warfighting units to combatant commanders throughout the Army and Air Force. However, judicial review of DSTs' Title VII challenges seriously impedes the military's performance of its vital national security duties.2 Congress must amend the National Guard Technician Act of 19683 (Technician Act) to explicitly exclude Title VII4 claims by DSTs.5

   Title VII is silent regarding the application of its protections to DSTs, leaving resolution in the hands of the courts. A split still exists in the federal circuit courts over whether DSTs should be allowed to bring claims against the military under Title VII. Although the Eleventh Circuit Court of Appeals has yet to specifically hold that National Guard military technicians' positions are "'irreducibly military in nature,' the majority of circuit courts of appeals that have examined the issue have so concluded."6 It is well-established law that members of the armed forces are precluded from suing the United States for alleged constitutional violations.7 The Ninth Circuit has also ruled that discrimination actions are personnel actions integrally related to the military's structure.8 The Supreme Court, however, has not yet ruled on whether DSTs may sue the U.S. government under Title VII. The field is now open for Congress to intervene and enact legislation amending the Technician Act to explicitly exclude DSTs from Title VII coverage.

   Barring DSTs from bringing suit in federal court will not leave them without a venue to seek redress for unlawful acts of discrimination. In lieu of civil suits, discrimination complaints brought by DSTs would be handled exclusively within the National Guard Military Discrimination Complaint System (NGMDCS).9 The NGMDCS provides due process protections for DSTs similar to those afforded active duty members of the Army through the Department of Defense (DoD) Equal Opportunity (EO) Program.10

   Congress should amend the Technician Act to explicitly exclude DSTs from Title VII coverage because their positions are "integrally related" to the unique structure and mission of the armed forces.11 The

   DSTs hold a "hybrid"12 position that is more akin to a military position than to a civilian job. As such, DSTs should be treated like military personnel and explicitly excluded from Title VII coverage.

   Section II of this article provides a brief history of the origins of the National Guard. Section III explains the military nature of the DST position and the vital role DSTs perform in contributing to our national defense. Section IV reviews Supreme Court decisions that bar military personnel from bringing Title VII claims against the military. Section V describes the split among the federal circuit courts regarding the justiciability of Title VII claims filed by DSTs. Section VI proposes that Congress adopt a three-prong approach to resolving the controversy, including requiring DSTs to use the NGMDCS to reconcile discrimination allegations. Section VII demonstrates that the NGMDCS provides adequate due process protections for DSTs who file discrimination complaints and concludes by explaining how amending the Technician Act and directing DSTs to pursue intraservice remedies through the NGMDCS to resolve discrimination complaints would promote judicial efficiency and fundamental fairness within the armed services. Finally, amending the Technician Act would prevent courts from second-guessing personnel decisions made by military commanders.

2. The Role of the National Guard

   1. The National Guard as the "Militia"

      "The National Guard is the modern Militia reserved to the States by [Article I, Section 8, Clauses 15 and 16] of the Constitution."13 Since the days of the Minutemen of Lexington and Concord until just prior to World War I, the militias of the various states embodied the concept of a citizen army.14 The enactment of the National Defense Act in 1916 altered the status of the militias by establishing them as the National

      Guard.15 The National Guard occupies a unique position in the United States' federal structure because the daily operation of National Guard units remains under the authority and control of the states.16 However, since the passage of the National Defense Act, the National Guard has been equipped and funded by the federal government and trained pursuant to federal standards.17

      In accordance with the National Defense Act, as amended in 1933, the National Guard is also a component of the U.S. Army Reserve, and officers appointed to the National Guard receive corresponding commissions in the Army Reserve Corps.18 As a vital and essential reserve component of the Armed Forces of the United States, the National Guard is available to serve with regular forces in time of war.19

      In addition to its role under state control, the National Guard may also be called to federal service to assist in controlling civil disorder.20

   2. National Guard of the United States-Reserve Component of the Armed Forces

      The Armed Forces of the United States consists of the Army, Navy, Marine Corps, Air Force, and Coast Guard.21 Each of the services is supported by a reserve component.22 The purpose of each reserve component is to provide trained military units as well as qualified individuals to supplement the active duty armed forces "in time of war or national emergency, and at such times as the national security may require."23

      Since the 1933 amendments to the National Defense Act, all individuals who have joined a state National Guard unit have simultaneously enlisted in the National Guard of the United States (NGUS).24 Under this "dual enlistment" system, Guardsmen retain their

      status as members of a state Guard unit, unless and until ordered to active duty in the Army.25 Members of the NGUS who are ordered to active duty are relieved from duty in the National Guard of their state.26

      Congress may order the NGUS to active duty if it determines that such units are required for national security.27 Likewise, the President or Congress may order NGUS units to active duty upon the declaration of a national emergency.28

   3. Federal Authority Over the National Guard

      Article I, Section 8, Clause 15 of the Constitution grants Congress power to "provide for calling forth the militia to execute the laws of the Union, suppress insurrections, and repel invasions . . . ."29 Additional power over the National Guard is granted to Congress in Clause 16, where Congress has the authority to make appropriations for "organizing, arming, and disciplining the militia, and for governing such part of them as may be employed in the service of the United States, reserving to the states respectively the appointment of the officers, and the authority of training the militia according to the discipline prescribed by Congress . . . ."30 Congress has the legislative authority to promulgate laws that regulate military life, including whether DSTs should be excluded from Title VII coverage to promote the efficiency of the military. This authority is further supported by the Supreme Court ruling in Chappell v. Wallace.

      In Chappell, the Supreme Court advised that "the Constitution contemplated that the Legislative Branch has plenary control over the rights, duties, and responsibilities in the framework of the Military Establishment."31 The Supreme Court has further emphasized that Congress has the authority to "regulate military life, taking into account the special patterns that define the military structure."32

      In exercising its explicit authority over the National Guard, Congress has promulgated legislation ordering the organization and composition of the National Guard to be the same as that prescribed for the Army and Air Force.33 In addition, Congress has established eligibility criteria for original enlistment in the National Guard.34 Congress requires that those who qualify for service take an oath to support and defend the Constitution of the United States and the constitutions of their own states against all enemies, as well as to obey orders of the President of the United States and of the governor of their state.35 If a state requests federal assistance to control domestic violence, the President may authorize the use of the militia and armed forces to render assistance to the state.36 Whenever the President determines that during a period of unlawful obstruction or rebellion against the authority of the federal government it has become impracticable to enforce the laws of the United States, the militia may be authorized for use to enforce federal law.37

      Further, Congress requires each company, battery, squadron, and detachment of the National Guard to assemble for drill and instruction at least forty-eight times per year and to participate annually in fifteen-day training camps.38 If a state fails to comply with the prescribed requirements for federal recognition (i.e., adherence to military standards or regulations authorized by Congress), the National Guard of that state will be barred, in whole or in part, from receiving federal aid, benefits, or privileges authorized by law.39 The National Guard plays a vital role in America's national defense; it must be trained and prepared to respond to both peacetime and wartime missions.

      The 9/11 terrorist attacks brought new meaning to the need for well-trained National Guard units. In the immediate wake of the...