

               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

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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

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          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

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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

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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.

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     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

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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.  

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     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)

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(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,

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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

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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.

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     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

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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).

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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.

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     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.

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