Association of Civilian Technicians, Inc. v. United States

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued February 9, 2010 Decided April 30, 2010

No. 09-5153

ASSOCIATION OF CIVILIAN TECHNICIANS, INC., ET AL.,
APPELLANTS

v.

UNITED STATES OF AMERICA, ET AL.,
APPELLEES

Appeal from the United States District Court
for the District of Columbia
(No. 1:07-cv-01747)

Daniel M. Schember argued the cause and filed the briefs
for appellants.

Kathryn A. Donnelly, Special Assistant U.S. Attorney,
argued the cause for appellees. With her on the brief was R.
Craig Lawrence, Assistant U.S. Attorney. Lanny J. Acosta, Jr.,
Special Assistant U.S. Attorney, entered an appearance.

Before: ROGERS and TATEL, Circuit Judges, and WILLIAMS,
Senior Circuit Judge.

Opinion for the Court by Circuit Judge ROGERS.
 2

Concurring opinion by Senior Circuit Judge WILLIAMS.

ROGERS, Circuit Judge: Four former civilian technician
members of the Puerto Rico Army National Guard (“PRANG”)
joined two labor organizations (collectively the “Guardsmen”)
in contending the district court erred in upholding the policy and
practice of the United States, the Secretary of the Army, and the
Chief of the National Guard Bureau (collectively “the United
States”) of recommending, rather than ordering, reinstatement
of discharged members of a state National Guard.1 The
Guardsmen contend such authority is plainly conferred by 32
U.S.C. § 110, which authorizes the President to “govern” and
“issue orders” to a state National Guard. The plain text does not
address reinstatement. The United States’ interpretation of its
enforcement powers is consistent with the text read in light of
the Militia Clause of the United States Constitution and the
statutory scheme and represents a reasoned judgment of its
relationship with the states’ National Guard. Accordingly, we
affirm the grant of summary judgment to the United States.

I.

The Guardsmen had dual status, by virtue of working as
civilian technicians, which required them to be members of a
state National Guard. 32 U.S.C. § 709(b)(2). Upon being
notified of their proposed discharge from PRANG, pursuant to
Puerto Rico Regulation 635-100 on involuntary separation,
either the Guardsmen or their unit commanders filed rebuttals.
However, U.S. Army Regulation 135-178 on administrative
separations required PRANG to notify the Guardsmen in writing

1
Because the differences between the status of Puerto Rico
and a state are immaterial for purposes of this appeal, we will treat
PRANG as a state National Guard. See Penagaricano v. Llenza, 747
F.2d 55, 56 n.1 (1st Cir. 1984).
 3

of their right to request a hearing by an administrative board.
None of the Guardsmen received this notice or appeared before
an administrative board prior to their discharges. Instead, after
filing rebuttals, they received honorable discharges from
PRANG and were transferred to the Army Reserves or the
Retired Reserves, depending on their length of service.

The Guardsmen appealed their discharges to the Army
Board for Correction of Military Records (“the Board”)
requesting that their National Guard records be corrected to
show they were never discharged and they were not absent
without leave when PRANG was activated after Hurricane
George. The Board found that the discharges violated federal
regulations, which required both notice of a right to a hearing or
appearance before an administrative board prior to discharge for
persons with over six years of service, and the approval of the
discharge by the Chief of the National Guard Bureau in the
Department of Defense for any soldiers with over eighteen but
less than twenty years of service.2 Concluding the discharges
were therefore erroneous and unjust, but that it lacked authority
to order the Guardsmen’s reinstatement in PRANG, the Board
recommended that the Adjutant General of Puerto Rico amend
the discharge orders, reinstate the Guardsmen with all pay,
allowance, and retirement points, and correct PRANG records
to show they were not discharged. The Board ordered the
correction of U.S. Army Reserves records to reflect the
Guardsmen’s proper amount of service in PRANG, assuming no
discharge. PRANG declined to reinstate the Guardsmen. The
Guardsmen thus remained in the U.S. Army Reserves following
their discharges from PRANG but automatically lost their

2
See Enlisted Administrative Separations, Army Reg.
135-178 §§ 3-4(a)(7), 3-10 (2007); Enlisted Separations, Nat’l
Guard Reg. 600-200 §§ 6-2, 6-32, 6-36 (2009).
 4

civilian technician jobs because they were no longer members
of PRANG.

The Guardsmen filed suit, seeking declaratory and
injunctive relief that the United States’ “ongoing policy and
practice” of refusing to order reinstatement of Guardsmen and
correction of state National Guard records and related relief was
“based on an erroneous belief of lack of authority.” Compl. ¶ 1.
The district court ruled the Guardsmen’s claim was cognizable
under the Administrative Procedure Act (“APA”), 5 U.S.C.
§ 706, and that the United States’ interpretation of its authority
was reasonable and entitled to deference, granting summary
judgment to the United States. Ass’n of Civilian Technicians,
Inc. v. United States, 601 F. Supp. 2d 146 (D.D.C. 2009). The
Guardsmen appeal, and our review of the grant of summary
judgment is de novo. See Fontana v. White, 334 F.3d 80, 81
(D.C. Cir. 2003).
II.

The Guardsmen focus on 32 U.S.C. § 110, which provides:
“The President shall prescribe regulations, and issue orders,
necessary to organize, discipline, and govern the National
Guard.” They contend section 110 plainly authorizes the
President to govern the PRANG, which necessarily includes the
power to enforce federal regulations on discharge procedures.
Because Congress placed this authority in the Secretary of the
Army acting through the Board, see 3 U.S.C. §§ 301, 302; 10
U.S.C. § 1552, the Guardsmen maintain that section 110’s
authorization to “govern” and “to issue orders” means the
Board can order reinstatement and correction of PRANG records
where separation from PRANG violated federal regulations.
The Guardsmen do not challenge the federal relief granted by
the Board.
 5

The United States responds that it has interpreted “govern”
in section 110 to authorize regulations and orders that apply
generally to all the states’ National Guard while leaving control
of the day-to-day operations to the states. It maintains that its
interpretation is due deference under Chevron, U.S.A., Inc. v.
Natural Resources Defense Council, Inc., 467 U.S. 837 (1984).
The United States does not explain on what basis the court
might conclude Congress intended the Board’s interpretation of
a statute to be accorded the force of law, see United States v.
Mead Corp., 533 U.S. 218, 226–27 (2001), and the record does
not indicate that the Board’s interpretation of section 110 was
adopted in a rulemaking or formal adjudication; the Board’s
rules of procedure call for informal proceedings, see 32 C.F.R.
§ 581.3, and the provisions of the Administrative Procedure Act
on adjudications do not apply to “the conduct of military . . .
functions,” 5 U.S.C. § 554(a)(4). However, it is undisputed that
the United States’ “policy and practice” is longstanding, and
under the circumstances the court considers counsel’s
explanation of the statutory basis for the denial of the full relief
sought by the Guardsmen to represent the United States’ “fair
and considered judgment.” Ass’n of Bituminous Contractors,
Inc. v. Apfel, 156 F.3d 1246, 1252 (D.C. Cir. 1998). We
conclude, regardless of the standard of review, that the denial of
full relief to the Guardsmen was correct. See Fontana, 334 F.3d
at 244.

We look to the text of the statute, recognizing that words
are to be read in the context in which they are used and in the
broader context of the statutory scheme. See, e.g., Robinson v.
Shell Oil Co., 519 U.S. 337, 341 (1997). The plain text of
section 110 does not address the nature and extent of the United
States’ governance of the states’ National Guard. Although it
authorizes the United States to “govern,” neither the text nor the
context require that the word be given its most expansive
meaning. The Militia Clause and the statutory scheme
 6

contemplate a shared responsibility for the National Guard,
although the precise nature of that relationship is not always
obvious. As the Fifth Circuit has observed, “in the modern-day
federal scheme, the national guard has come to occupy a unique
place. It has become, by design, a “hybrid” entity that carefully
combines both federal and state characteristics, sometimes
distinctly and sometimes not.” Lipscomb v. Fed. Labor
Relations Auth., 333 F.3d 611, 614 (5th Cir. 2003). This court
has made a similar observation, noting “[t]he National Guard
. . . plays a dual role, operating under joint federal and state
control.” In re Sealed Case, 551 F.3d 1047, 1048 (D.C. Cir.
2009).

The Militia Clause of the Constitution provides that
Congress shall have the power:

To provide 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;

U.S. CONST., art. I, § 8, cl. 16 (emphasis added). The Militia in
this Clause is the National Guard, see Gilligan v. Morgan, 413
U.S. 1, 6 (1973); In re Sealed Case, 551 F.3d at 1048; see also
32 U.S.C. § 101(4), and the Clause expressly contemplates the
reservation of powers to the States. The statutory scheme for the
National Guard appears in Title 10, which addresses the armed
forces generally and establishes the Board, and Title 32, which
addresses the National Guard specifically. Title 10 provides
 7

with respect to the Army National Guard of the United States3
that, when not on active duty, its members “shall be
administered, armed, equipped, and trained in their status as
members of the Army National Guard.” 10 U.S.C. § 10107; see
id. § 12401. Title 32 provides, in turn, that when not called to
federal duty by the President, 32 U.S.C. §§ 101(12), 102, 325,
a state National Guard is under the command of the state
Governor and the State Adjutant General, who is appointed by
the Governor, 32 U.S.C. § 314. See Charles v. Rice, 28 F.3d
1312, 1315 (1st Cir. 1994); Kise v. Dep’t of Military &
Veterans Affairs, 832 A.2d 987 (Pa. 2003). This command falls
within a federal framework established by Congress for the
organization, discipline and governance of the states’ National
Guard in recognition that they are part of the force that may be
needed for national security. See, e.g., 32 U.S.C. §§ 102–05.
Annual appropriations enacted by Congress provide funding to
support the states’ National Guard, including the issue of arms,
other military supplies, and other expenses. Id. §§ 106–07. If
a State fails timely to comply with or enforce a requirement or
regulation, it risks loss of federal benefits, “as the President may
prescribe,” namely the loss of “money or other aid or benefit or
privilege authorized by law.” Id. § 108. Limitations are also
placed on states’ maintenance of other troops. Id. § 109. To
ensure the readiness of the states’ National Guard upon
activation to federal status, see §§ 102, 104(b), 105, the

3
As the court explained in In re Sealed Case, “[t]hrough the
Department of Defense’s National Guard Bureau, the Department of
the Army extends federal recognition to state National Guard units
that comply with federal criteria; it may withdraw recognition if a unit
ceases to comply. 10 U.S.C. § 10503(8). These state National Guard
units are known as the Army National Guard. 32 U.S.C. § 101(4).
Together, all federally recognized state units comprise one of the
reserve components of the Army, known as the Army National Guard
of the United States. 10 U.S.C. § 10105.” 551 F.3d at 1048.
 8

President is to “prescribe regulations, and issue orders,
necessary to organize, discipline, and govern the National
Guard.” Id. § 110. The President also may suspend certain
provisions of Title 32 in time of war or congressionally declared
emergency. Id. § 111. Congress established various personnel
requirements to be eligible for federal recognition, such as the
length of enlistment and related matters, id. §§ 302–04, but it did
not address reinstatement of discharged Guardsmen to their state
National Guard.

The United States has interpreted the statutory scheme to
require the Commonwealth of Puerto Rico, when its National
Guard is not on active federal duty, to be responsible for its
administration, arming, equipping, and training. This
interpretation is consistent with the statutory scheme setting out
the Board’s authority in section 1552 of Title 10. The United
States explains the regulations and orders issued pursuant to
section 110 are designed to establish uniform systems,
processes, and standards among the states’ National Guard.
Thus, the National Guard Bureau issued Regulation 600-200 on
separation of enlisted members from a state National Guard in
an effort to standardize the due process afforded to members
regardless of their state citizenship. See Appellees’ Br. 18. So
interpreted, section 110 does not authorize the United States to
take over a state National Guard’s daily administrative duties
upon determining the state National Guard has failed to comply
with discharge regulations. Rather, “[t]he daily operations of
the national guard units are . . . recognized generally to be under
the control of the states, but governed largely by substantive
federal law.” Lipscomb, 333 F.3d at 614. The United States
acknowledges that “[t]o extend that power to the federal
government would completely undermine the states’ authority
to administer their own affairs while in a Title 32 (non-federal)
status.” Appellees’ Br. 17.
 9

This interpretation of section 110 is consistent with the
statutory text as used in the statutory scheme where governance
finds a reasoned balance between federal and state control. It
divides authority in a manner compatible with the National
Guard’s “dual role,” In re Sealed Case, 551 F.3d at 1048,
whereby the United States has chosen to defer to the state
authorities on matters of daily operations, including individual
membership. Moreover, it appears Congress has implicitly
ratified the United States’ “policy and practice” of refusing to
issue orders of individual reinstatement to a state National
Guard. See Milhouse v. Levy, 548 F.2d 357, 363 (D.C. Cir.
1976). As the Guardsmen acknowledge, for many years the
Board has consistently issued recommendations rather than
orders to the states’ National Guard when it has found an error
or injustice. See, e.g., Christoffersen v. Wash. State Air Nat’l
Guard, 855 F.2d 1437, 1442 (9th Cir. 1988); Jorden v. Nat’l
Guard Bureau, 799 F.2d 99, 102 n.5 (3rd Cir. 1986); Williams
v. Wilson, 762 F.2d 357, 360 n.6 (4th Cir. 1985); Navas v. Vales,
752 F.2d 765, 770 (1st Cir. 1985). Section 110 in Title 32 has
not been amended since its enactment in 1916. In 1994, when
Congress amended the provision of Title 32 that authorizes
withholding of federal benefits from a state National Guard in
violation of a federal requirement, 32 U.S.C. § 108 (2009), it did
not specify other remedies, although at the time appellate courts
had upheld the United States’ position that it lacked authority to
order individual reinstatements in a state National Guard, e.g.
Christoffersen, 855 F. 2d at 1442; Jorden, 799 F.2d at 102 n.5.
See Lorillard, Div. of Loew’s Theatres, Inc. v. Pons, 434 U.S.
575, 580–81 (1978). Although Congress’ failure to act with
regard to the United States’ “policy and practice” might be due
to inadvertence or inattention, this seems unlikely given its
attention to regulatory enforcement in amending Titles 10 and
32 in 1994 upon establishing the National Guard Bureau. See
Milhouse, 548 F.2d at 363.
 10

The Guardsmen object that the United States’ interpretation
“eliminates the President’s authority to ‘prescribe regulations
and issue orders, . . . to . . . govern the National Guard,’”
Appellants’ Br. 12, and would tie the President’s hands when he
needs to call upon the state National Guard if states were to
discharge the members of their National Guard contrary to
federal regulations, see id. at 11 n.8. But the United States’
interpretation of “govern” simply reflects its judgment about the
proper balance in the federal-state relationship contemplated by
the Constitution and mandated by Congress. The Guardsmen’s
position erroneously assumes that to “issue orders” can only
mean that orders must be issued in individual cases and not to
govern the states’ National Guard as a whole. They overlook
Congress’ organizational and command control, as well as the
prohibition against general disbandment or reduction below a
“minimum strength”of a state National Guard under 32 U.S.C.
§ 104. Furthermore, the United States retains the power of the
purse arising from the reality that “[t]he Federal Government
provides virtually all of the funding, the materiel, and the
leadership for the State [National] Guard units.” Perpich v.
Dep’t of Defense, 496 U.S. 334, 351 (1990); cf. Laird v. Tatum,
408 U.S. 1, 15 (1972); New York v. United States, 505 U.S. 144,
167 (1992).

Because the United States’ interpretation is consistent with
the Militia Clause and the statutory scheme and represents a
reasoned judgment about its role regarding reinstatements of
discharged members of the state National Guard, we conclude
the denial of full relief to the Guardsmen was correct. Deciding
where to draw the line involves subtle considerations the United
States is well-positioned to evaluate and is, under the
circumstances, deserving of our deference. Cf. Cargill v. Marsh,
902 F.2d 1006, 1007 (D.C. Cir. 1990). The Guardsmen,
therefore, cannot prevail on their claim that the United States’
refusal to order their reinstatement in PRANG is unlawfully
 11

withheld agency action under the APA, 5 U.S.C. § 706(1) or
arbitrary or capricious under the APA, 5 U.S.C. § 706(2). In
challenging the United States’ interpretation of section 110, the
Guardsmen acknowledge that they have not more generally
challenged the denials of the requested relief for lack of
reasoned decisionmaking. Oral Argument Tape of Feb. 9, 2010
at 20.00–22.00.

Alternatively, the Guardsmen contend that PRANG records
are records of the Department of the Army subject to Board
correction pursuant to 10 U.S.C. § 1552. But section 1552
provides that “the Secretary of a military department may
correct any military record of the Secretary's department when
the Secretary considers it necessary to correct an error or remove
an injustice.” 10 U.S.C. § 1552(a)(1). Although a state National
Guard may have federal status for certain statutory purposes,
see, e.g., In re Sealed Case, 551 F.3d at 1053; Lipscomb, 333
F.3d at 613, whether it has federal status “necessarily turns on
the particular [statutory] provision at issue in each case,” In re
Sealed Case, 551 F.3d at 1053. The Guardsmen point to nothing
in section 1552 that would suggest Congress contemplated the
Board’s authority extends to the correction of state National
Guard records. Nor do they reference any other statute that
would bring state National Guard records within the Department
of the Army for purposes of section 1552. In view of the plain
text, the Guardsmen therefore fail to show the United States’
refusal to order correction of PRANG records was arbitrary or
capricious or contrary to law.

Accordingly, we affirm the grant of summary judgment to
the United States.
 WILLIAMS, Senior Circuit Judge, concurring: I agree
with the panel’s opinion and write separately only to address
an oddity in the principle invoked from Association of
Bituminous Contractors v. Apfel, 156 F.3d 1246, 1252 (D.C.
Cir. 1998). See Maj. Op. at 5. Under that decision, so long as
an agency has a track record of resolving an issue consistently
in the past, we treat counsel’s explanation as representing the
agency’s “‘fair and considered judgment’” even if the agency
has never explained its reasoning prior to counsel’s litigation
arguments. Bituminous Contractors, 156 F.3d at 1252
(quoting Auer v. Robbins, 519 U.S. 452 (1997)); cf. Hill v.
Gould, 555 F.3d 1003, 1008 (D.C. Cir. 2009) (suggesting that
United States v. Mead Corp., 533 U.S. 218 (2001), may have
superseded Bituminous Contractors to the extent that that case
held that an agency position could be entitled to deference in
the circumstance at issue); Public Citizen v. Federal Motor
Carrier Safety Administration, 374 F.3d 1209, 1218 (D.C. Cir.
2004) (reciting the standard principle, in the context of a
reasoned decision-making claim, that “[t]he expertise of the
agency, not its lawyers, must be brought to bear on [the] issue
in the first instance” (citing SEC v. Chenery, 318 U.S. 80
(1943))).

A curiosity of the Bituminous Contractors rule is that in
any case in which it is applied and the statute (as ultimately
construed by the court) allows but does not require the
agency’s construction, a litigant could successfully raise an
argument under Prill v. NLRB, 755 F.2d 941, 947-48 (D.C.
Cir. 1985)—namely, that a remand is in order because the
agency may have wrongly thought itself compelled to adopt
its interpretation. See PDK Labs. Inc. v. DEA, 362 F.3d 786,
798 (D.C. Cir. 2004) (applying Prill and discussing “the Prill
line of decisions”). So far as appears, Bituminous Contractors
left unaltered the pre-existing principle that a Prill claim
cannot be defeated by litigation-stage assurances that the
agency would have chosen its challenged interpretation as a
 2

matter of discretion had it realized in the first place that it
possessed discretion.

In this case, the challengers have affirmatively disavowed
any argument that the agency decision failed for want of
reasoned decisionmaking, see Maj. Op. at 10-11, which would
encompass a contention under Prill, so that decision poses no
obstacle to our rejecting their claim.