In Re Sealed Case

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued September 15, 2008 Decided January 6, 2009

No. 07-5251

IN RE: SEALED CASE
______

Appeal from the United States District Court
for the District of Columbia
(No. 03cv02071)
______

David P. Sheldon argued the cause for appellant. With
him on the brief was Raymond J. Toney.

Lanny J. Acosta, Jr., Assistant U.S. Attorney, argued the
cause for appellee. With him on the brief were Jeffrey A.
Taylor, U.S. Attorney, R. Craig Lawrence, Assistant U.S.
Attorney, and Brian C. Baldrate, Special Assistant U.S.
Attorney.

Before: ROGERS, TATEL, and KAVANAUGH, Circuit
Judges.

Opinion for the Court filed by Circuit Judge TATEL.

Opinion concurring in the judgment filed by Circuit
Judge KAVANAUGH.

TATEL, Circuit Judge: Appellant, a member of the
Vermont Army National Guard, sued the Department of the
 2
Army, claiming that the Vermont Army National Guard
released his personal information in violation of the Privacy
Act. The parties agree that the Privacy Act protects state
guardsmen while on active federal duty. Appellant, however,
was not on active federal duty at the time his personal
information was released. For the reasons set forth below, we
hold that the Privacy Act protects guardsmen even when they
are not on active federal duty.

I.
Though organized in part through the states, the National
Guard functions as “an integral part of the first line defenses
of the United States,” 32 U.S.C. § 102. Its organization stems
from Article I, Section 8 of the U.S. Constitution, which gives
Congress authority “[t]o 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. Through 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. As the Supreme Court has explained, “[t]he Federal
Government provides virtually all of the funding, the materiel,
and the leadership for the State Guard units.” Perpich v.
Dep’t of Def., 496 U.S. 334, 351 (1990). Although states are
responsible for training the Army National Guard and rely on
their units under gubernatorial command “to respond to local
 3
emergencies,” Perpich, 496 U.S. at 351, such training must
conform to regulations prescribed by the Secretary of the
Army, 32 U.S.C. §§ 501–505. The National Guard thus plays
a dual role, operating under joint federal and state control.

The Privacy Act, 5 U.S.C. § 552a, which covers
“agenc[ies]” including “military department[s],” §§ 552(f)(1),
552a(a)(1), “safeguards the public from unwarranted
collection, maintenance, use and dissemination of personal
information contained in agency records.” Bartel v. FAA, 725
F.2d 1403, 1407 (D.C. Cir. 1984). The Act protects private
information from unnecessary disclosure and enables
individuals to correct errors in their files. § 552a(b), (d). At
issue here are the Act’s non-disclosure provisions.

Appellant, a member of the Vermont Army National
Guard, brought a Privacy Act suit against the Department of
the Army, alleging that a civilian National Guard employee
and other persons had improperly disclosed appellant’s highly
sensitive personal information, causing him emotional,
psychological, and financial harm. Although not disputing
appellant’s assertion that the Vermont Army National Guard
is federally recognized, the Department moved to dismiss,
arguing that the Vermont Army National Guard is not an
“agency” subject to the Privacy Act. The district court,
though recognizing that members of state Army National
Guard units are simultaneously members of the Army
National Guard of the United States, nonetheless held that the
Army National Guard is an agency subject to the Privacy Act
only when on active federal duty. Because the Vermont
Army National Guard was not on active federal duty at the
time of the alleged disclosure, the court granted the motion to
dismiss.
 4
The guardsman appeals. Our review is de novo. Muir v.
Navy Fed. Credit Union, 529 F.3d 1100, 1108 (D.C. Cir.
2008).

II.
Although the National Guard’s dual federal-state status
has been described as “murky and mystical,” Bowen v. United
States, 49 Fed. Cl. 673, 676 (2001), this case presents a
straightforward question of statutory interpretation: does the
Privacy Act’s definition of “agency” extend to National
Guard units only when on active federal duty? Answering
yes, the Department emphasizes the level of state control over
National Guard units when not on active federal duty. We
agree with appellant, however, that under the plain language
of the relevant statutes, the Privacy Act’s definition of agency
includes federally recognized National Guard units at all
times.

The Privacy Act adopts the Freedom of Information
Act’s (FOIA) definition of agency. § 552a(a)(1); see also
Dong v. Smithsonian Inst., 125 F.3d 877, 878 & n.1 (D.C. Cir.
1997). Under FOIA, the term “agency” includes “any . . .
military department.” § 552(f)(1). Accordingly, we must
determine whether the Vermont Army National Guard is part
of a “military department.” The U.S. Code clearly answers
this question in the affirmative.

Section 101 of Title 10 defines “military department” to
include “all . . . reserve components . . . under the control or
supervision of the Secretary of the department.” 10 U.S.C. §
101(a)(6). As the Department concedes, Appellee’s Br. 8, the
Army National Guard of the United States is one of those
reserve components. 10 U.S.C. § 10101(1). Section 10105,
in turn, provides that the Army National Guard of the United
States “consists of,” in part, “federally recognized units and
 5
organizations of the Army National Guard.” § 10105. Given
that the government nowhere disputes appellant’s assertion
that the Vermont Army National Guard is federally
recognized, the Privacy Act applies. Put another way,
because it is undisputed that the Vermont Army National
Guard enjoys federal recognition, it is part of the Army
National Guard of the United States, which is a reserve
component, which is part of the military department of the
Army, which is included in the Privacy Act’s definition of
“agency.” Although it takes several steps to reach this
conclusion, the result is clear.

At oral argument, Department counsel acknowledged the
accuracy of each of these steps in the logical chain, conceding
that the Vermont Army National Guard is always part of the
Army National Guard of the United States even when not on
active federal duty. Oral Arg. at 14:21. The Department
nonetheless seeks to break the chain by relying primarily on
two other provisions: 10 U.S.C. §§ 10106 and 10107.

Section 10106 says, “The Army National Guard while in
the service of the United States is a component of the Army.”
10 U.S.C. § 10106. According to the Department, this
provision means that the Vermont Army National Guard is
part of a military department and thus subject to the Privacy
Act only while in the service of the United States. Section
10106, however, says nothing about a state National Guard
unit’s status when not in the service of the United States, nor
does it remove state guard units from their continuing status
as part of the Army National Guard of the United States.
Rather, section 10106 addresses one of the two ways in which
Army National Guard units may be called into active federal
service. First, state guard units may be ordered to active
federal duty as reserves of the Army through the Army
National Guard of the United States, 10 U.S.C. § 12301, in
 6
which case the Army National Guard of the United States,
always a reserve component of the Army, provides the status
under which the guard units serve. Second, in three specific
circumstances, guard units may be called up directly into
federal service from their state militia status—the President
may “call into Federal service members and units of the
National Guard of any State” in case of invasion, rebellion, or
an inability to execute the laws of the United States with
regular forces. 10 U.S.C. § 12406; see also Perpich, 496 U.S.
at 350 n.21 (describing the “distinct statutes” for “activating
the National Guard of the United States” and for “calling forth
the . . . National Guards of the various States”). Section
10106, which like section 12406 refers to the “National
Guard” not the “National Guard of the United States,”
addresses the status of guard units called up in these three
specific circumstances. In such circumstances, because the
guard units do not serve as part of an already existing reserve
component (the Army National Guard of the United States),
they require some other component status. Section 10106 fills
this gap, providing that the Army National Guard becomes its
own component of the Army when called up in this capacity.
In other words, section 10106 establishes that when the Army
National Guard, as such, is called directly into federal service
(as opposed to when activated through the Army National
Guard of the United States), it constitutes a separate
component of the Army (rather than serving as an activated
reserve of the Army). Section 10106 therefore in no way
undermines our view that the Vermont Army National Guard
is part of a reserve component (and thus of a military
department) regardless of federal duty status.

Section 10107 is no more helpful to the Department. It
provides that “[w]hen not on active duty, members of the
Army National Guard of the United States shall be
administered, armed, equipped, and trained in their status as
 7
members of the Army National Guard.” 10 U.S.C. § 10107.
As its plain language indicates, section 10107 addresses the
status of individual servicemen, not the status of state Army
National Guard units within the military department. Because
the Privacy Act applies to agencies, not individuals, our
concern here is with the organizational status of National
Guard units, meaning that section 10107 has nothing to do
with the issue before us. See Martinez v. Bureau of Prisons,
444 F.3d 620, 624 (D.C. Cir. 2006) (dismissing Privacy Act
and FOIA claims against individuals because “[b]oth statutes
concern the obligations of agencies as distinct from individual
employees in those agencies”). In any event, nothing in
section 10107 strips non–federally activated guardsmen of
their membership in the Army National Guard of the United
States, nor could it. Under Title 10, “a person who enlists in
the Army National Guard . . . shall be concurrently enlisted
. . . as a Reserve of the Army for service in the Army National
Guard of the United States.” 10 U.S.C. § 12107(b)(1).
Indeed, by its terms section 10107 confirms that non–
federally activated guardsmen remain “members of the Army
National Guard of the United States.” § 10107.

We read sections 10106 and 10107 as demonstrating that
what changes when the Vermont Army National Guard passes
in and out of active federal duty is the chain of command, not
the guard’s status as an agency under the Privacy Act. When
called into federal service under section 12406, the Army
National Guard, as a “component of the Army,” § 10106,
operates under the direct command of the Secretary of the
Army. Even when not serving in this capacity, however,
guard units remain part of the Army National Guard of the
United States, § 10105, a reserve component that is itself
under the control and supervision of the Secretary. Similarly,
although when not federally activated as reserves of the Army
under section 12301, guardsmen regain state status and report
 8
directly to the governor, § 10107, their guard unit nonetheless
retains its status as part of the Army National Guard of the
United States, § 10105.

In sum, neither section 10106 nor section 10107 deprives
the Army National Guard of its continuous status as part of
the Army National Guard of the United States. That can
occur only if the Secretary withdraws the Army National
Guard’s federal recognition. § 10105; see also Nelson v.
Geringer, 295 F.3d 1082, 1093 (10th Cir. 2002) (interpreting
analogous provisions under Title 10 applicable to the Air
National Guard of the United States and holding that “[e]ven
when the Guard is not federally activated . . . the Wyoming
Air and Army National Guard units remain reserve
components of the United States Air Force and Army
respectively, and most if not all functions performed by the
state are subject to federal requirements and regulations”). As
long as the Secretary has not withdrawn the Vermont Army
National Guard’s federal recognition, it is part of an agency
for purposes of the Privacy Act whether or not federally
activated.

We think it worth noting that the Department’s own
regulations and interpretation of the Privacy Act treat the Act
as applicable to the National Guard without regard to federal
duty status. Army Regulation 340-21, issued pursuant to the
Privacy Act, sets forth the Army Privacy Program and
“applies to the Active Army, the Army National Guard, the
U.S. Army Reserve, and the Army and Air Force Exchange
Service.” U.S. DEP’T OF THE ARMY, REG. 340-21, THE ARMY
PRIVACY PROGRAM i (1985), available at http://www.army.
mil/usapa/epubs/pdf/r340_21.pdf (emphasis added); see also
U.S. DEP’T OF THE ARMY, REG. 22-55, THE DEPARTMENT OF
THE ARMY FREEDOM OF INFORMATION ACT PROGRAM i
(1997), available at http://www.army.mil/usapa/epubs/pdf/
 9
r25_55.pdf (containing identical language applying FOIA
regulations to the National Guard). Even more revealing,
because the Privacy Act generally requires agencies to obtain
written consent for and to keep an accounting of disclosures
of information outside the agency, § 552a(b)(1), (c), if the
National Guard and the Army were not part of the same
agency, the Army would have to obtain consent and provide
an accounting virtually every time it shared records with a
National Guard unit. The Department, however, has never
interpreted the Privacy Act as requiring such action.
According to an advisory opinion entitled “Applicability of
the Privacy Act to National Guard Records” issued by the
Defense Department’s Defense Privacy Board, which
oversees implementation of the Privacy Program, 32 C.F.R. §
310.9(a)(2)(i), the National Guard and the Army are part of
the same agency for Privacy Act purposes. Because its
analysis is particularly compelling, we quote the relevant
section of the opinion in full:

Reserve components of the Army and the Air
Force include the Army and Air National Guards of
the United States respectively, which are composed
of federally recognized units and organizations of the
Army or Air National Guard and members of the
Army or Air National Guard who are also Reserves
of the Army or Air Force. 10 U.S.C. §§ 3077 and
8077 [now 10 U.S.C. §§ 10105 and 10111]. 10
U.S.C. § 275 requires the Departments of the Army
and the Air Force to maintain personnel records on
all members of the federally recognized units and
organizations of the Army and Air National Guards
and on all members of the Army or Air National
Guards who are also reserves of the Army and Air
Force. Such records are “maintained” by the Army
or Air Force for the purposes of the Privacy Act.
 10
These records are not all located at the National
Guard Bureau. Some are in the physical possession
of the state adjutant general. However, records need
not be physically located in the agency for them to
be maintained by the agency. See OMB Guidelines.
Records located at the state level are under the
direct control of the Army and Air Force in that they
are maintained by the state under regulations (NGR
600200 and AFR 3544) implementing 10 U.S.C. §
275, and promulgated by authority of the Secretaries
of the Army and the Air Force under 10 U.S.C. §
280. Therefore, the records are Army or Air Force
records and subject to the provisions of the Privacy
Act.

That the records are subject to the Privacy Act
does not mean they cannot be used by the members
of the state national guards. The state officials using
and maintaining the records are members of the
reserves (members of the Army or Air Force
National Guard of the United States). Disclosure to
them in performance of their duties is disclosure
within the Department of Defense not requiring a
published routine use or an accounting.

DEFENSE PRIVACY BOARD, U.S. DEP’T OF DEF., ADVISORY
OPINION 5, APPLICABILITY OF THE PRIVACY ACT TO NATIONAL
GUARD RECORDS (1992) (emphasis added), available at
http://www.defenselink.mil/privacy/opinions/op0005.htm.
Based on the same straightforward statutory interpretation we
adopt here, then, the Department itself has concluded that the
members of the National Guard and the Army are part of the
same agency for Privacy Act purposes.
 11
Although finding this statutory analysis “alluring,” the
district court ultimately rejected it given “the substantial body
of case law that has explained the National Guard’s hybrid
federal-state status.” In re Sealed Case, No. 03-cv-02071,
Slip op. at 6 (D.D.C. May 25, 2007). In particular, the district
court relied on Perpich v. Department of Defense, in which
the Supreme Court held that nothing in the Militia Clauses
requires gubernatorial consent to Congress’s calling up the
National Guard for training outside the United States. 496
U.S. at 354–55. In reaching that conclusion, the Court noted
that all guardsmen enlist simultaneously in both the National
Guard and the National Guard of the United States, id. at 345,
and that “a member of the Guard who is ordered to active
duty in the federal service is thereby relieved of his or her
status in the State Guard for the entire period of federal
service,” id. at 346. Although Perpich thus stands for the
proposition that federally activated guardsmen temporarily
lose their State National Guard status, nothing in the
decision’s holding severs the continuous link between the
Army National Guard of the United States and federally
recognized units of the Army National Guard when not on
active federal service. § 10105; see also Matreale v. N.J.
Dep’t of Military & Veterans Affairs, 487 F.3d 150, 156 (3d
Cir. 2007) (interpreting Perpich as holding only that a
guardsman loses state status while on federal duty, not that a
guardsman loses federal status when deactivated). Moreover,
Perpich does not involve the Privacy Act, and as we
demonstrated above, the Privacy Act is clear: National Guard
units, whether activated or not, are part of an “agency.” Nor
do the other appellate decisions the district court cites and the
parties debate compel a different result. None of those
decisions deals with the Privacy Act or interprets the Act’s
definition of “agency.” Moreover, to the extent the cases
discuss the federal or state nature of a particular act by a
National Guard member, they have little to do with the
 12
question we face here, i.e., whether, as an organization, a
non–federally activated National Guard unit falls within the
Privacy Act's definition of “agency.”

The Department reminds us that the Privacy Act
constitutes a waiver of sovereign immunity that “‘must be
unequivocally expressed in statutory text.’” Webman v. Fed.
Bureau of Prisons, 441 F.3d 1022, 1025 (D.C. Cir. 2006)
(quoting Lane v. Pena, 518 U.S. 187, 192 (1996)). True
enough, but the Privacy Act clearly waives sovereign
immunity for improper disclosures by agencies, § 552a(g),
and expressly defines “agency” as including military
departments, § 552(f)(1). And as we have demonstrated
above, the Army National Guard is clearly part of a military
department. Though requiring several steps to discern, the
waiver is “unequivocally expressed in statutory text.”
Webman, 441 F.3d at 1025.

In still another effort to avoid the Act’s plain language,
the Department invokes the Federal Tort Claims Act (FTCA),
28 U.S.C. §§ 1346(b), 2672, which, like the Privacy Act,
defines “[f]ederal agency” as including “military
departments,” 28 U.S.C. § 2671. The FTCA expressly waives
immunity for torts committed by an “employee of the
government,” a term that includes both agency employees
and, separately, National Guard members “while engaged in
training or duty” under specific statutory provisions. § 2671.
According to the Department, “[i]n contrast to the FTCA,
where Congress unambiguously waived immunity for actions
of the National Guard in limited circumstances, Congress did
not provide such a specific waiver of sovereign immunity for
State National Guard units under the Privacy Act.”
Appellee’s Br. 19. That Congress expressly defined
“employee” under the FTCA does not, however, imply that it
must define “agency” under the Privacy Act more
 13
specifically. And Congress’s decision to limit FTCA liability
to acts by National Guard members in specific situations
neither suggests nor even hints that the National Guard itself
qualifies as an agency under the Privacy Act only in those
situations.

Finally, the Department warns that were we to interpret
the Privacy Act as extending to non–federally activated Army
National Guard units, “all State National Guards and their
members would always be on federal status and could always
be seen as federal actors,” meaning that “[t]he United States
would face potential liability for any and all actions
committed by State Guard units and members regardless of
the capacity in which the unit or the individual was
purportedly serving.” Appellee’s Br. 15–16. We disagree.
Determining what laws apply to the National Guard is a
question of statutory interpretation, whose resolution
necessarily turns on the particular provision at issue in each
case. Here the statutes could hardly be clearer: the Privacy
Act defines agency as including any military department,
which includes the Army National Guard of the United States,
of which a federally recognized Army National Guard is a
continuous component. This conclusion says nothing
whatsoever about the United States’s liability under any other
statute.

For the foregoing reasons, the order dismissing the
complaint is reversed.

So ordered.
 KAVANAUGH, Circuit Judge, concurring in the judgment:
The Department of the Army is a military department, and it
is therefore an agency subject to the Privacy Act. See
5 U.S.C. §§ 552(f)(1), 552a(a)(1); 10 U.S.C. § 101(a)(8). The
Army is defined to include “reserve components” under “the
control or supervision” of the Secretary. See 10 U.S.C.
§ 101(a)(6). The statutory list of reserve components includes
the “Army National Guard of the United States,” which is a
federal entity under the control or supervision of the
Secretary. § 10101(1). The Army National Guard of the
United States is in turn defined to include the “federally
recognized units and organizations” of the state National
Guards. § 10105.

The question in this appeal concerns one of those state
National Guards, the Vermont Army National Guard. It is
subject to the federal Privacy Act if it is either (i) itself a
“reserve component” of the Army “under the control or
supervision” of the Secretary of the Army or (ii) a “federally
recognized unit or organization” of the Army National Guard
of the United States.

The Vermont Army National Guard is not itself a
“reserve component” of the Army under the control or
supervision of the Secretary. The statute lists the seven
specific entities that qualify as reserve components of the
armed forces. They are the Army National Guard of the
United States, the Air National Guard of the United States, the
Army Reserve, the Navy Reserve, the Marine Corps Reserve,
the Air Force Reserve, and the Coast Guard Reserve.
§ 10101(1). The statute does not list state National Guards as
reserve components. Even assuming arguendo that the
Vermont Army National Guard were a reserve component of
the federal Army, it is not under the “control or supervision”
of the President, Secretary of Defense, or Secretary of the
Army, except in those rare circumstances when a state Guard
itself is federally called forth for domestic purposes under the
 2
Militia Clause. See U.S. CONST. art. I, § 8, cl. 15
(empowering Congress to provide for “calling forth the
Militia to execute the Laws of the Union, suppress
Insurrections and repel Invasions”); 10 U.S.C. §§ 331-
33, 12406. The majority opinion does not dispute the
conclusion that the Vermont Army National Guard is not
itself a reserve component of the Army under the control or
supervision of the Secretary.

The trickier question in this case is whether the Vermont
Army National Guard is a federally recognized unit or
organization of the Army National Guard of the United States.
The plaintiff alleges that it is – albeit without citations or
support. I am dubious.

The Army National Guard of the United States is an
umbrella federal entity that was created in 1933 as part of a
federal-state effort to work around Militia Clause limits on
federal use of state National Guards. The goal was to
authorize federal use of state National Guard units not just for
the domestic purposes specified by the Militia Clause but also
for foreign wars. Under this arrangement the states ensure, in
return for federal funding, that state Guard units and members
become part of both the state Guard and the federal Army
National Guard of the United States. This allows the Federal
Government to quickly activate Guard units – as units – and
deploy them into foreign wars, as exemplified by the many
Guard units that have been activated and continue to serve in
Iraq and Afghanistan. See generally Perpich v. Department
of Defense, 496 U.S. 334 (1990); Frederick Bernays Wiener,
The Militia Clause of the Constitution, 54 HARV. L. REV. 181,
205-10 (1940).

To implement this federal-state cooperative effort, the
members of each state’s Army National Guard are also
 3
members of the federal Army National Guard of the United
States. In addition, individual units of each state’s National
Guard – such as the 86th Infantry Brigade Combat Team of
the Vermont Army National Guard – are also federally
recognized units of the Army National Guard of the United
States and can be ordered into active federal status in
wartime.

Even though they share members and units, each state’s
Army National Guard and the federal Army National Guard
of the United States remain “distinct organizations” – the one
commanded by the state’s Governor, the other commanded by
the President of the United States. Perpich, 496 U.S. at 345.

The plaintiff here therefore appears to be legally and
factually incorrect when he asserts that the Vermont Army
National Guard is itself “a federally recognized Army
National Guard unit.” Appellant’s Br. at 33 (emphases
added). Consistent with the principle that the federal Army
National Guard of the United States and the state Guard are
separate entities that share units and members, the federal
recognition process seems to envision federal recognition of
units and organizations within a state’s Guard, but not of the
entire state Guard as an entity. See, e.g., Organization and
Federal Recognition of Army National Guard Units, Nat’l
Guard Reg. 10-1 § 2-2, at 5-6. To be sure, it is conceivable
that the Vermont Army National Guard as an entity in fact has
been federally recognized and is thus itself part of the Army
National Guard of the United States. But that seems
somewhat unlikely given the governing legal structure and the
apparent practice. Cf. NATIONAL GUARD ALMANAC 2001
141-44 (listing “Major Army National Guard Units” not
including any state National Guards); United States Army
Website, Organization, Units and Commands (listing
 4
“National Guard Units” not including any state National
Guards).

In any event, the parties have offered no information
beyond the plaintiff’s allegation about whether the Vermont
Army National Guard is a federally recognized unit or
organization of the Army National Guard of the United States
– or, more to the point, about whether the person in the
Vermont Army National Guard who allegedly disclosed
information about the plaintiff in violation of the Privacy Act
was part of a federally recognized unit or organization of the
Army National Guard of the United States. If the
Government produces evidence that the person who allegedly
disclosed the information was not part of a federally
recognized unit or organization of the Army National Guard
of the United States, it presumably could prevail on a
summary judgment motion.* I agree with the majority
opinion, however, that the plaintiff’s complaint cannot be
dismissed on this sparse record at the motion to dismiss stage.

I respectfully concur in the judgment.

*
The Government also suggests that, for Privacy Act
purposes, a federally recognized state Guard unit is part of the
federal Army National Guard of the United States only when the
unit is ordered into active federal duty. But as the majority opinion
concludes, there is no statutory support for that broad-brush theory:
Under the statutory scheme, a federally recognized unit or
organization of the Army National Guard of the United States is
always part of the Army National Guard of the United States – and
the Army National Guard of the United States in turn is a reserve
component of the Army under the control or supervision of the
Secretary.