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SIMPSON v. UNITED STATES

April 6, 1979

Robert D. SIMPSON, George Saddlemire, John F. Harrison, Gregory A. Tavano, Joseph W. Bowman, Guy A. Annunziato, Raymond J. Lutz, Robert Schnurr, Edward F. Murphy, John F. Kennedy, Francis J. Tavano, Frank R. Marrazzulla and Baremeo Hurley, Plaintiffs,
v.
UNITED STATES of America, Donald E. Rumsfeld, Secretary of Defense, United States of America, Martin R. Hoffman, Secretary of the Army, United States of America, Laverne E. Weber, Major General, United States Army, Chief, National Guard Bureau, United States of America, and State of New York, John C. Baker, Major General, New York Army National Guard, Chief of Staff to the Governor of the State of New York, Division of Military and Naval Affairs, State of New York, Defendants



The opinion of the court was delivered by: LASKER

The National Guard Technicians Act *fn1" provides that a National Guard technician, who is a full time civilian employee of the National Guard, must be a member of the National Guard, and that a technician who is separated from the Guard "shall be promptly separated from his technician employment." 32 U.S.C. § 709(b), (e)(1). The plaintiffs are former National Guard technicians who lost their civilian employment when they were separated from the Guard pursuant to provisions of the Reserve Officer Personnel Act of 1954. *fn2" They sue the United States and the State of New York, the Secretaries of Defense and of the Army, the Chief, National Guard Bureau, and the head of the New York Army National Guard.

The plaintiffs contend that their separation from their civilian employment violated the Age Discrimination in Employment Act (ADEA), *fn3" and denied them the equal protection of the laws guaranteed by the fifth *fn4" and fourteenth amendments to the Constitution. They seek declaratory relief, back pay, and liquidated damages.

The defendants move for summary judgment dismissing the complaint on the grounds that it fails to state a claim under the ADEA or the equal protection component of the fifth and fourteenth amendments. *fn5" Plaintiffs cross-move for summary judgment granting them the relief sought in the complaint.

 I.

 Because the National Guard is not a full-time active force, National Guard technicians are employed to meet the day-to-day administrative, training, and logistic needs of the Guard. *fn6" "The concept of the technician program is that the technicians will serve concurrently in three different ways: (A ) perform full time civilian work in their units; (B ) perform military training and duty in their units; and (C ) be available to enter active Federal service at any time their units are called." S.Rep.No.1446, 90th Cong., 2d Sess. 2 (1968). Employment as a technician is conditioned on concurrent membership in the National Guard because the technician's civilian and military functions are integrated. *fn7" Since technicians are both civilian employees of the Guard and Guard members, they receive two salaries, they are subject (in their civilian employment) to civilian personnel regulations and (in their Guard service) to military regulations and the Uniform Code of Military Justice, and they are eligible for both civil service and military retirement benefits. They are also subject to a special liability: they lose their civilian employment if they are separated from the Guard. 32 U.S.C. § 709(e) (1).

 The Reserve Officer Personnel Act governs promotion and discharge of National Guard officers. To ensure that military personnel meet proper standards, the Act embodies a system for merit promotion based on regular reviews of each officer's performance and qualifications. To ensure that the military hierarchy does not become "top heavy" while providing adequate promotion opportunities for qualified officers, the Act provides for heavy levels of attrition in higher ranks. Each of the plaintiffs was separated from the Guard pursuant to one of the attritive provisions of the Act, *fn8" and consequently lost his technician employment.

 The plaintiffs argue that the operation of the attritive provisions of the Reserve Officer Personnel Act illegally discriminated against them on the basis of age, contrary to the Age Discrimination in Employment Act, which provides that "(a)ll personnel actions affecting employees . . . in the military departments . . . shall be made free from any discrimination based on age." 29 U.S.C. § 633a(a). Their argument is straightforward. They contend first that as civilian employees of the Guard they were employees "in the military departments," and therefore protected by the ADEA from age discrimination, *fn9" and second that the "personnel actions" terminating their military status pursuant to the Personnel Act, which "affected" their civilian employment because continued employment is conditioned on continued membership in the Guard, were not "free from any discrimination based on age." While the argument has first-blush appeal, further analysis demonstrates that even if plaintiffs' premises are correct, their conclusion does not follow as inevitably as they suggest.

 Although Congress used expansive language in the ADEA ("(a)ll personnel actions affecting (specified federal employees) shall be made free from any discrimination based on age"), the question nevertheless remains whether it intended the Act's prohibition to apply to the category of personnel actions challenged in this suit. The attritive provisions of the Reserve Officer Personnel Act, by their very nature, disadvantage older soldiers to the benefit of younger ones. Whether or not they involve "discrimination based on age" within the meaning of the ADEA, there is an unavoidable tension between the policies underlying the two statutes, a tension that manifests itself in this action brought by individuals who, because of their dual status, find themselves at the intersection of the two Acts. *fn10"

 Two reconciliations of the two statutes are plausible. On the one hand, Congress may have intended, as the plaintiffs suggest, to curtail the effects of the Reserve Officer Personnel Act when it affects civilian employment as well as military status. On the other, Congress may have intended that the ADEA not apply to determinations under the Reserve Officer Personnel Act at all, even when civilian employment, as well as military status, is at stake. If so, technicians would be protected against age discrimination in personnel actions relating to their technician employment, but not against discrimination influencing personnel actions relating to their military status, and affecting their civilian employment solely because it is conditioned on military status. For example, a technician fired "for cause" under 32 U.S.C. § 709(e)(3) as an allegedly incompetent technician could assert that his or her termination was not free from age discrimination, and could sue under the ADEA. Only when the allegedly discriminatory personnel action had its origin in the military sphere would action under the ADEA be precluded. *fn11"

 The choice between these alternative ways of resolving the conflict between the ADEA and the Reserve Officer Personnel Act requires divination of congressional intent: did Congress intend, when it enacted the ADEA, to create a special exception for National Guard technicians to the attritive provisions of the Reserve Officer Personnel Act? We conclude that it did not.

 Congress has expressed, in the ADEA, an interest in eliminating age discrimination in employment. It has also implemented, through the Reserve Officer Personnel Act, an attritive scheme designed to ensure that military personnel are highly qualified and that adequate opportunities for promotion within the military are available. To the extent that the attritive scheme discriminates against military officers on the basis of age, it conflicts with the policy of the ADEA. The question is which interest is paramount in the case of National Guard technicians: the interest in eliminating age discrimination affecting their civilian employment, or the conflicting interests in maintaining the quality of National Guard personnel and providing opportunities for advancement within the Guard's hierarchy without burdening the Guard with too many high ranking officers?

 The plaintiffs do not argue that Congress intended the ADEA to cover military personnel generally, *fn12" and what authority there is supports the proposition that it did not. Lear v. Schlesinger, 17 Fair Empl. Prac. Cas. (BNA) 337, 17 Empl. Prac. Dec. (CCH) P8472, No. 75-205, slip op. at 8-14 (W.D.Mo. April 14, 1978); Hunter v. Stetson, 444 F. Supp. 238, 239 (E.D.N.Y.1977); Cf. Johnson v. Alexander, 572 F.2d 1219, 1223-24 (8th Cir. 1978) (uniformed military personnel are not "employees . . . in military departments" within the meaning of § 717(a) of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-16, which is analogous to 29 U.S.C. § 633a(a)); Vance v. Arizona Army National Guard, No. 74-329, slip op. at 3 (D.Ariz. June 18, 1975) (same). Congress' decision not to extend coverage under the ADEA to military personnel generally is evidence of its satisfaction with the scheme established by the Reserve Officer Personnel Act as a method for distinguishing the best officers from many qualified ones, and winnowing the force to provide opportunities for others to advance. Because military activity and military duty are an integral part of the technician's job, as conceived by Congress, we conclude that Congress did not intend to exempt National Guard technicians from the effects of the Reserve Officer Personnel Act. Congress did not intend to attenuate its mandate, embodied in the National Guard Technicians Act's requirement that technicians be members of the Guard, that technicians "meet all the mental and physical standards as well as professional qualifications prescribed by the military departments." S.Rep.No.1446, 90th Cong., 2d Sess. 1 (1968). *fn13"

 This conclusion is supported by the fact that Congress authorized the Secretary of the Army to exempt some technicians from the requirement of concurrent Guard membership. 32 U.S.C. § 709(b); H.R.Rep.No.1823, 90th Cong., 2d Sess. 6 (1968), Reprinted in 3 (1968) U.S.Code Cong. & Admin.News, pp. 3318, 3324. By providing this exemption for those technicians (principally secretaries, clerk-typists, and security guards, Id.) whose jobs, in the opinion of the Secretary, are completely non-military, Congress indicated all the more clearly that in its view most technicians jobs are integrally military and should be held by individuals who meet military standards.

 Moreover, Congress has made exceptions in other areas to the coverage of the ADEA in order to accommodate policies very similar to those underlying the Reserve Officer Personnel Act. In 1978, Congress amended the ADEA to extend its coverage to those aged sixty-five to seventy. *fn14" However, Congress chose not to raise the upper limit of coverage for certain management employees *fn15" out of concern for "the impact that the elimination of mandatory retirement would have on the ability of employers to assure promotional opportunities for younger workers," S.Rep.No.493, 95th Cong., 2d Sess. 7 (1977), Reprinted in 3 (1978) U.S.Code Cong. & Admin.News, pp. 504, 510. A similar, temporary exception was made for tenured faculty of colleges and universities *fn16" in response to congressional concern that retention of such employees beyond age sixty-five would make it difficult "to employ younger professors, particularly women and minorities," S.Rep.No.493, 95th Cong., 2d Sess. 8-9 (1977), Reprinted in 3 (1978) U.S.Code Cong. & Admin.News, pp. 504, 511-12. These exceptions to the coverage of the ADEA, ...


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