
USCA1 Opinion

	




                           UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                ____________________       No. 96-2213                           ROBERTO TIRADO-ACOSTA, ET AL.,                               Plaintiffs, Appellants,                                         v.                         PUERTO RICO NATIONAL GUARD, ET AL.,                               Defendants, Appellees.                                ____________________                    APPEAL FROM THE UNITED STATES DISTRICT COURT                           FOR THE DISTRICT OF PUERTO RICO                    [Hon. Carmen C. Cerezo, U.S. District Judge]                                ____________________                                       Before                                Selya, Circuit Judge,                             Cyr, Senior Circuit Judge,                             and Boudin, Circuit Judge.                                ____________________            Rafael F.  Castro Lang with whom  F. Castro Amy was  on brief for       appellants.            Sylvia Roger Stefani, Assistant  Solicitor General, Department of       Justice,                 with                     whom                          Carlos                               Lugo Fiol, Solicitor General, and Edda Serrano       Blasini, Deputy Solicitor General, were on brief for appellees.                                ____________________                                    July 9, 1997                                ____________________                 BOUDIN, Circuit Judge.   Plaintiffs in this action,  all            members of  the Puerto Rico  National Guard,  were called  to            active                   duty                        in the Persian Gulf War.  Prior to active duty and            briefly upon their return, they were employed full-time in  a            National Guard program  to assist in drug interdiction.   Not            long after their return,  the plaintiffs' assignment to  this            program                    was                       terminated                                  by the Puerto Rico National Guard.  When            the                plaintiffs sued, the district court ruled that they had no            statutory                      right to reemployment in such a program.  We affirm.                 The  basic facts are  not in dispute.   The Puerto  Rico            National Guard, like the National Guards in all 50 states, is            a hybrid organization.  National Guards are ordinarily  under            the  control  of state  (or,  in  the case  of  Puerto  Rico,            Commonwealth)                         officials, but are organized pursuant to federal            statute,                     and                         in war time or other emergencies, Guard units may            be brought under federal  control.  See U.S. Const., art.  I,            sec. 8, cl. 16; 32 U.S.C. S 101, et seq.                 In                    1989,                         Congress                                  authorized federal funding to permit the            local National Guards to support drug interdiction and  other            counter-drug activities.    32 U.S.C.  S  112.   Section  112            provided                     that each state desiring to participate would draw up            its own plan subject to approval by the Secretary of Defense.            Despite this and other authority over the program granted  to            the Secretary  of  Defense,  the statute  required  that  the            National                     Guard personnel involved in these operations be under                                         -2-                                         -2-            local                  control and "not in Federal service," id. S 112(c)(1), a            requirement  apparently  designed  to  mesh  with  the  Posse            Comitatus Act, 18 U.S.C. S 1385, limiting the use of  federal            troops for domestic law enforcement purposes.                 Most National Guard  members ordinarily serve only  part            time, but there are exceptions.  Section 112 itself  provided            that  subject to  Secretary  of  Defense  regulations,  local            National Guard members  could, pursuant to a state plan,  "be            ordered                    to                       perform full-time National Guard duty under section            502(f)  of this title  for the purpose  of carrying out  drug            interdiction                         and counter-drug activities."  32 U.S.C. S 502(f)            allows  National Guard  personnel to  be assigned  additional            duties, apart from ordinary drills and field exercises,  with            the provision appropriate for "pay and allowances."                 Beginning                           in                              1989,                                   the                                       Puerto Rico National Guard used the            federal funds  provided under section  112 for  a variety  of            counter-drug projects.   In one of the projects, Puerto  Rico            National Guard personnel assisted the U.S. Customs Service in            inspecting cargo containers arriving and leaving Puerto  Rico            ports and airports.  Each of the plaintiffs in this case is a            Puerto Rico National  Guard member who  was assigned to  work            full-time in 1989 to  1990 in this phase of the  counter-drug            program.  Minor variations aside, each plaintiff worked under            orders couched in the following terms:                      You are  ordered to  Active Duty  special                      work (ADSW) for the period indicated plus                                         -3-                                         -3-                      allowable                                travel time.  Upon completion of                      the period of ADSW unless sooner relieved                      or extended by proper authority you  will                      return                             to                                the place where you entered ADSW                      and are relieved from such duty.                 According to the memorandum of understanding between the            Puerto Rico National Guard and the Customs Service, "National            Guard personnel employed in support of [the Customs  Service]            for counter-drug operations will be under the command of, and            directly                     responsible to their military chain of command."  The            memorandum also  said  that "all  missions will  be  executed            through                    the                       military                                chain of command; i.e., tactical direction            of the troops . . . will be left solely to the National Guard            Officers in Charge/Noncommissioned Officer in Charge."                 Thus, the plaintiffs  working in  the drug  interdiction            program                    were                        ultimately                                   commanded and controlled by Puerto Rico            National Guard officers, and they were paid for their work by            the Puerto  Rico National Guard  from funds  provided by  the            federal government.  However, much of the plaintiffs' day-to-            day work was directed by Customs Service officials.  The work            itself                   did                       not                          entail                                 the use of any specialized military skill            but  consisted  mainly  of  unloading  and  reloading   cargo            containers or inspecting their contents.                 The                     plaintiffs' pay and allowances for full-time National            Guard duty in  the program were substantial (e.g., $1,400  to            $2,000  per  month).   Each  plaintiff  worked  under  orders            assigning                      him such duty for a relatively brief period, ranging                                         -4-                                         -4-            from                 2                   days                        to 61 days, but the orders were regularly renewed.            At               trial                     the                        plaintiffs                                   testified that they believed that these            orders                   would                         be                           renewed                                   indefinitely so long as funding for the            drug interdiction program continued.  They said that they had            been given assurances that they would not be dismissed unless            they failed to perform their work satisfactorily.                 In January 1991, all of the plaintiffs were called  into            active service  on account of the  Persian Gulf War and  left            their  positions  in the  drug  interdiction  program.    The            plaintiffs completed their  active federal  military duty  in            early                  July                       1991                           and                               were                                    reassigned by the Puerto Rico National            Guard                  to                     the                         drug interdiction program for the period July 11,            1991                 to                    September                             30,                                 1991.  On October 1, 1991, the plaintiffs            were released from  full-time duty in the program, and  their            positions taken by other Guard personnel.                 In                    September                              1992, the plaintiffs brought suit in federal            district court in Puerto Rico seeking reinstatement and  back            pay.   The principal claim  brought against  the Puerto  Rico            National Guard "and/or the United States of America" was that            defendants  had violated  the  plaintiffs' rights  under  the            Veterans' Reemployment Rights Act ("the Veterans' Act"), then            codified                     at                        38 U.S.C. S 2021 et seq., by not retaining them in            their full-time  drug-interdiction positions following  their                                         -5-                                         -5-            return  from the  Gulf  War.   The  United States  was  later            dismissed as a defendant.1                   The Puerto  Rico  National Guard  moved to  dismiss  the            complaint on  several grounds, including  failure to state  a            claim, non-justiciability, Eleventh Amendment immunity,  non-            exhaustion of administrative remedies, and untimeliness.  The            district                     court deemed most of these defenses lacking in merit;            and it  said that  the merits could  not be resolved  without            developing                       a                        factual                                record.  Accordingly, after discovery, the            district                     court                          conducted                                    a bench trial in August 1995 and heard            testimony from both sides.                   In                    a                      written                             decision                                      issued August 16, 1996, the district            court dismissed the complaint.  It ruled that the  plaintiffs            did not  have  reemployment rights  under the  Veterans'  Act            because their drug  interdiction positions were "military  in            nature" and therefore beyond the statute's intended coverage;            the                court                      did not reach or resolve the defendants' alternative            statutory                      defense                             that                                  the plaintiffs be excluded from coverage            because                    their                          posts                               were                                    "temporary."  See 38 U.S.C. S 2021(a).            The district court entered  judgment for the defendants,  and            this appeal followed.                  1The complaint also alleged that two individual Guard            officers had violated 42 U.S.C. S 1983 by refusing to retain            the plaintiffs in the program; but this claim was contingent            on a showing of violation of the Veterans' Act and requires            no further discussion.                                         -6-                                         -6-                 In our view, the district court was clearly right in its            construction of the  federal statute, and  we affirm on  that            ground without addressing other  defenses.  Where the  result            would                  be                     the                         same, this court has often rejected claims on the            merits without resolving possible jurisdictional  objections.            Hachikian                                          v.                         FDIC                           ,                              96                                 F.3d 502, 506 n.4 (1st Cir. 1996).  Here,            the case ought to be  decided promptly, in view of the  delay            already                    suffered by the plaintiffs, and the legal issue is one            that can be decided definitively only by a federal court.                   We begin  with the  terms of  the Veterans'  Act.   This            statute, enacted  in 1978,  carried forward  the policy  that            Congress                     first                          adopted                                  in 1940 to provide employment protection            for veterans  returning  from military  service.   Monroe  v.            Standard Oil Co., 452 U.S. 549, 554-55 (1981).  Although  the            Veterans' Act has itself been superseded by a new enactment--            the                Uniform                       Services                                Employment and Reemployment Act, 38 U.S.C.            S 4301 et seq.--the new statute applies only to reemployments            initiated on or after October 13, 1994.  110 Stat. 3336.                 The Veterans'  Act  main section  granting  reemployment            rights is  38 U.S.C. S  2021, which  provides protection  for            anyone "inducted into the Armed Forces of the United  States"            under the selective service statute.  A companion section, 28            U.S.C. S 2024, extends similar protection, by cross-reference            back to  section 2021, to  several other  classes of  persons            including reservists and others called to "active duty (other                                         -7-                                         -7-            than                 for                     the                         purpose of determining physical fitness and other            than for training) . . . ."  Concededly, the plaintiffs  were            called to active duty in 1991.                 Section 2021(a) provides that an inductee (or by  cross-            reference a reservist  called to active  duty) "who leaves  a            position                     (other                            than                                a                                  temporary position) in the employ of any            employer"                      is                         entitled to reemployment if sought within 90 days            after  release  from  the  military.    The  conditions   and            obligations  vary somewhat  depending  on whether  the  prior            employer was governmental or private, but it is common ground            that the  statute protects  prior employment  by the  federal            government, the states, and the Commonwealth of Puerto  Rico.            See  38  U.S.C.  S  2021(a);  id.  S  101(20)  (defining  the            Commonwealth as a state for this purpose).                 Although                          the                              Veterans' Act covers "a position (other than            a temporary  position) in the  employ of  any employer,"  the            defendants argue that  the statute was  not meant to  protect            prior employment in a military position.  We consider at  the            outset whether the statute,  which contains no such  limiting            term,                  should                         be                           so                              construed; and, finding that it should be so            read, we then return to the question whether the  plaintiffs'            former positions in the  drug interdiction program should  be            regarded as unprotected military  positions.  Both are  legal            questions, but of slightly different character.                                           -8-                                         -8-                 As we have noted,  no express term in the Veterans'  Act            limits a  protectible  former  "position" to  a  position  in            civilian  employment  or   excludes  from  the  category   of            protectible                        positions a military assignment.  Nevertheless, it            is               apparent                        to                          us                             that                                  the statute must be thus construed.  The            evidence for this conclusion is provided by the structure and            purpose of the statute, by extrinsic policy safeguarding  the            autonomy  of  military organizations,  and  by  the  lack  of            precedent  extending  reemployment  protection  to   military            positions.                 First, the very design of the Veterans' Act makes  clear            its  central aim was  to protect those  who were inducted  or            otherwise drawn  into military life  and thereby required  to            surrender                      their                           civilian                                    jobs.  The Supreme Court, for example,            has  spoken of  the Veterans'  Act as  relating to  "military            service after which a member of the Armed Forces retains  the            right to civilian employment."  King v. St. Vincent's  Hosp.,            502                U.S.                     215,                         216                             (1991).  Congress probably did not insert the            word "civilian" before  "position" simply  because it  seemed            unnecessary to add a term made almost redundant by context.                   Each of the provisions providing reemployment protection            is               directed                        at                          persons                                  who cross the barrier from civilian into            military life:   the  inductee (section  2021), the  enlistee            (section 2024(a)), the  reservist entering  upon active  duty            (other than  for physical  fitness testing  or for  training)                                         -9-                                         -9-            (section 2024(b)), and certain persons who enter upon  active            duty for training or inactive duty training (subsections  (c)            and                (d)).                                             It                         is                            persons                                    who leave "a position" to perform such            duties and thereafter seek to "be restored to such  position"            who are protected.  38 U.S.C. S 2021(a).                 There is simply no  hint in all this that when  Congress            sought to  protect prior employment,  it intended to  protect            prior  employment in a  military capacity.   It is true  that            civilian                     employees of state and federal military organizations            are                themselves                          protected                                    if called to active duty.  See Panigua            v. Department  of  the Air  Force,  13 M.S.P.R.  306,  307-09            (M.S.P.B. 1982).  But such civilian employees of the military            are akin  to civilian employees  of any  other department  of            government.  Military employees are a different matter.                 This brings us  to a further, reenforcing reason why  we            decline to  read the  Veterans' Act  to protect  reemployment            rights                   in                     former                            military positions.  The courts have long been            reluctant to interfere with internal military decisionmaking,            including                      personnel decisions.  With only rare exceptions, the            courts                   have                        taken                             the                                 view that assignments within the military            structure                      are matters to be decided by the military and not by            the  courts.  See  Orloff v. Willoughby,  345 U.S. 83,  93-94            (1953).  The reasons are too obvious to need elaboration.                 In some situations, this view is expressed by deeming  a            controversy to be nonjusticiable, Wright v. Park, 5 F.3d 586,                                        -10-                                        -10-            589-91                   (1st                        Cir. 1993); in others, it takes the form of giving            great deference to  the military's judgment on the matter  at            hand.  Richenberg v. Perry, 97 F.3d 256, 261 (8th Cir. 1996).            But  the  underlying  notion  is  that  matters  of  military            organization,                         personnel and operations are extremely sensitive            and that courts will do more harm than good by  interfering.             Congress                     can                         provide otherwise by statute, but rarely does so.                 Thus, we conclude that Veterans' Act protections do  not            extend to affording anyone reemployment rights in a  military            position.    However generously  the  Veterans'  Act  may  be            construed  to protect  prior civilian  employment, Tilton  v.            Missouri P.R.R., 376  U.S. 169, 181 (1964), Congress did  not            intend                   that                       anyone                              should have a preemptive claim to his former            position  as an air  force pilot or  an army tank  commander.            Whether the plaintiffs' positions in the Puerto Rico National            Guard                  drug                       interdiction program should be viewed as sharing in            this                 "military" character is a different issue to which we now            turn.                 It                    is                       clear                             from section 112 and the orders issued to the            plaintiffs that their participation in the drug  interdiction            program                    was                       the                           performance of "full-time National Guard duty."            The                drug                    interdiction                                 statute, 32 U.S.C. S 112(b), provides for            Guard personnel  to perform such  National Guard duty  "under            section 502(f)" to carry  out drug interdiction; and  section            502(f)                   allows Guard members to be ordered to perform "training                                        -11-                                        -11-            or  other  duty"  in addition  to  assembly  for  drills  and            encampment.                                                 The                            orders                                   issued to the plaintiffs made reference            to section 502(f) and, in certain cases, section 503 which is            a companion provision involving joint exercises with the army            or the air force.                 In addition, the evidence shows that the plaintiffs were            participating in the  drug interdiction  program pursuant  to            military                     orders and were subject to the command and control of            Guard                  officers.                                                        Indeed,                                    it appears likely that the plaintiffs'            full-time                      positions                               in                                  the drug interdiction program might have            allowed                    them                         to claim reemployment rights in any civilian jobs            they                 held                      at                        the                            time                                 they entered upon full-time duty.  See 38            U.S.C. S 2024(c)(d); id. S 101(22)(C).  In all events,  full-            time National  Guard duty by  a Guard  member under  military            orders appears to us quintessentially military in character.                  It                    is                       quite                             true that the physical tasks performed by the            plaintiffs could have been,  and commonly were, performed  by            customs                    officers                            who                                were not in military service.  But this is            common:  one can be a cook or a pilot or a  radio operator in            either military  or civilian  life.   National Guard  members            called to duty to  build up the dikes  in a flooded area  are            still part  of the military even  though they are engaged  in            construction work.  Given  Congress' intent to protect  prior            civilian jobs  for those serving in  the military, it is  the            nature                   of                      the employment--not its functions--that is decisive.                                        -12-                                        -12-                 The same result follows from extrinsic policy.  It would            directly offend the tradition of non-interference in military            assignments  for a  court to  direct that  the plaintiffs  be            restored to performing  specific functions as National  Guard            members assigned to full-time  duty in the drug  interdiction            program.  The Puerto Rico National Guard cited as reasons for            its reshuffling of personnel  "unity of command" and  "rank."            The                plaintiffs                           say                              that                                   these objectives could have been met by            a              different                       reorganization that retained their jobs; but making            these evaluations is just what courts are reluctant to do.                 It remains  to refer  briefly to  cases involving  Guard            employees governed by the  National Guard Technicians Act  of            1968,  32 U.S.C.  S 709.   These  technicians are  "full-time            civilian                     employees                              of                                 the National Guard" who are also, in most            cases, required to hold "concurrent National Guard membership            as a condition for their civilian employment."  H.R. Rep. No.            90-1823, at 2 (1968).  E.g., Wright, 5 F.3d at 587 (full-time            aircraft maintenance specialist).                 In                    a                      number                             of                               cases,                                      a                                        National Guard technician has been            called to active service and forced to surrender his civilian            technician duties with  the Guard.   The question has  arisen            whether  this technician  position  is  protected  under  the            Veterans'                      Act                         after                               active duty ends.  One district court ruled            in               favor                     of                        coverage, although it assumed rather than analyzed            the statutory-coverage issue,  and several other courts  have                                        -13-                                        -13-            been willing to assume such coverage          in denying  th            technician's reemployment protection on other grounds.2                 H                                                 arguendo               e                  ow                     this                          court                               would                                     decide such a case is unclear.  There            is  language  in  Wright v.  Park  that  would  lean  against            protection, although the rights claimed by the technician  in            that                 case                      were not under the Veterans' Act but under the Civil            Rights                   Act,                        42 U.S.C. SS 1983, 1985, and the federal and state            whistle-blower  statutes.   On  the  other  hand,  a  passing            reference in the new reemployment statute that has supplanted            the Veterans'  Act may give  some support  to National  Guard            technicians who claim reemployment protection.  See 38 U.S.C.            S 4304(4)(B);  see also H.R. Rep.  No. 103-65, at 21  (1994).            However such cases  might be decided, we think that  National            Guard  technicians  are  clearly  distinguishable  from   the            plaintiffs in this case.                  National Guard technicians are employed full-time by the            Guard in  a civilian  capacity.   In this  respect, they  are            arguably protected  under the  Veterans' Act  like any  other            civilian                     employees                               of                                 a                                   federal or state military organization.            The difficulty,  where such  civilian positions  are tied  to            membership in the National Guard, is that reinstatement would            require either that the  military tie-in be waived or that  a                 2See Witter v. Pennsylvania Nat'l Guard, 462 F. Supp.            299, 305-06 (E.D. Pa. 1978); see also Polos v. United States,            621 F.2d 385, 389-90 (Ct. Cl. 1980); Leistiko v. Secretary of            Army, 922 F. Supp. 66, 76 (N.D. Ohio 1996).                                        -14-                                        -14-            military  position also  be made  available.   The issue  was            avoided in Witter  because plaintiff in  that case no  longer            sought reemployment but merely monetary compensation.  462 F.            Supp. at 306.                 In                    any                        event, the plaintiffs in the present case were not            employed                     as                        technicians with the curious dual capacity of that            position:   full-time  civilian  employment with  an  adjunct            military role.  The plaintiffs' only status was as "full-time            National Guard" members assigned, under a state plan approved            by the Secretary of Defense, to work under military orders in            the drug interdiction program.  Even assuming that this court            might                  follow                         Witter                                                            and                                   extend protection to technicians--which            is far from clear--this would not affect our decision in  the            present case  that the plaintiffs  are not  protected by  the            Veterans' Act.                  To                     this                          point, we have said little about the new federal            statute                    which, as of October 1994, supplants the Veterans' Act            and provides  a  new  framework for  reemployment  rights  of            veterans.                                             This new statute does not apply to the present case            and is not direct evidence of the intent of the Congress that            enacted the Veterans' Act.  But the new statute is in certain            respects                     a                      reenactment                                  of the Veterans' Act in somewhat clearer            language,                      and                          it                            would                                  certainly be deserving of mention if the            new                version                       were                            strongly favorable either to the plaintiffs or            the defendants.                                        -15-                                        -15-                 The                     fact                          is                             that the new statute carries forward the same            ambiguity                      in                         literal language that afflicts the Veterans' Act.            It protects, subject to certain conditions, "any person whose            absence                    from                         a                          position                                   of employment is necessitated by reason            of service in the uniformed services . . . ."  About the most            to be said is  that the new statute provides that  "full-time            National                     Guard duty" is included in the definition of "service            in the uniformed services," 38 U.S.C. S 4303(13), reenforcing            our view that the plaintiffs here passed over to the military            domain                   when                       they                            accepted full-time National Guard duty as part            of the drug interdiction program.                 Affirmed.                                        -16-                                        -16-
