UNITED STATES DISTRICT COURT, SOUTHERN DISTRICT OF NEW YORK
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,
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
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.
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),
and denied them the equal protection of the laws guaranteed by the fifth
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.
Plaintiffs cross-move for summary judgment granting them the relief sought in the complaint.
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.
"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.
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,
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,
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.
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.
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,
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).
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.
However, Congress chose not to raise the upper limit of coverage for certain management employees
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
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, intended to ensure employment and promotion opportunities for younger workers, support the inference that Congress did not intend the ADEA to override the attritive provisions of the Reserve Officer Personnel Act, which are designed to guarantee comparable promotion opportunities for lower ranking members of the National Guard.
Finally, the interpretation of the ADEA urged by the plaintiffs requires the repeal by implication of portions of the Reserve Officer Personnel Act, at least as they apply to National Guard technicians. "The cardinal rule is that repeals by implication are not favored." Posadas v. National City Bankr. 296 U.S. 497, 503, 56 S. Ct. 349, 352, 80 L. Ed. 931 (1936); Accord, Morton v. Mancari, 417 U.S. 535, 549, 94 S. Ct. 2474, 41 L. Ed. 2d 290 (1974). The ADEA and Reserve Officer Personnel Act can be reconciled, and effect given to the language and intent of both, by construing the term "personnel actions," as used in the ADEA, narrowly; not as encompassing the claims made in this suit.
We conclude that the ADEA does not cover bona fide military personnel actions under the Reserve Officer Personnel Act, even when those actions affect the civilian employment of otherwise covered individuals. Accordingly, summary judgment dismissing the plaintiffs' claims under the ADEA is proper.
The plaintiffs contend that the requirement that a National Guard technician "who is separated from the National Guard . . . shall be promptly separated from his technician employment," 32 U.S.C. § 709(e)(1), denies them the equal protection of the laws because Army Reserve technicians are not subject to a similar requirement.
The Army Reserve, like the Army National Guard, is not a full-time active force. The principal difference between the two is that the National Guard is a state militia, subject (unless called to active federal service) to the control and direction of the Governors of the various states, whereas the Army Reserve is a component of the "land and naval Forces" of the United States, U.S.Const. art. I, § 8, cl. 14, under the command of the President. The Guard, however, can be called to active federal service alongside units of the Regular Army and the Army Reserve, and by conscious design the organization and operation of the Guard parallels that of the Reserve.
Like the Guard, the Reserve employs civilians to see to its day-to-day administrative, logistic, and training needs. However, although the function and duties of these Army Reserve technicians parallel those of Army National Guard technicians, Reserve technicians do not necessarily lose their technician employment when they are separated from the Reserve. Army Regulation AR 140-315 (1971), entitled "Employment and Utilization of US Army Reserve Technicians," provides that
"(a)n individual employed as a technician is required to maintain Active Reserve Status in the unit for which he is a technician Unless removal from the Ready Reserve is required for a cogent reason (i. e., maximum age, maximum service, medical unfitness, twice failing of selection for officer promotion, etc.) "
Id. P 8(e)(3) (emphasis added); See id. PP 3(e), 10(b), (d), 12(a), (b). Thus, Reserve technicians, unlike Guard technicians, are not discharged from their civilian employment when they are separated from the Reserve pursuant to the attritive provisions of the Reserve Officer Personnel Act. The plaintiffs contend that this differential treatment violates the Constitution's equal protection guarantee that similarly situated persons be accorded similar treatment.
The plaintiffs do not argue that the government cannot condition their continued civilian employment on continued membership in the Guard, but rather that the government cannot do so unless it also conditions the continued civilian employment of Army Reserve technicians on continued membership in the Reserve.
Usually, equal protection claims are resolved by determining whether or not there is some actual difference between those subject to the challenged government action and those whom they claim should also be subject to it: a difference that justifies differential treatment. Here, however, it appears that the function and duties of National Guard technicians and Army Reserve technicians are the same. Thus, (at least on the present record) it is impossible to justify the different treatment accorded Guard technicians and Reserve technicians on the basis of any actual differences between their roles in their respective organizations.
However, that the roles of Reserve technicians and Guard technicians are indistinguishable does not necessarily mean that they are similarly situated with respect to the government action challenged here.
In spite of the similarity or identity of the operation of the two technician programs, their historical antecedents are different, and those antecedents explain the challenged differences in treatment. To the extent that the explanation is rational, it suffices to justify those differences for equal protection purposes, in a case such as this one, where the relevant equal protection standard is one of legislative rationality.
Prior to 1960, the functions now performed by Army Reserve technicians were performed by federal employees in the competitive civil service who were not required to be members of the Reserve. In 1960, the Army sought and secured the approval of the Civil Service Commission to establish the current Reserve technicians program.
The formal agreement between the Army and the Civil Service Commission, as revised in 1970, provides that to "enhance readiness of the Army Reserve units for mobilization and combat . . . membership in an active Army Reserve unit (or eligibility and willingness to join the Reserve) shall be a requirement to secure a permanent appointment to a position as a technician."
The agreement also provides that "(n)o technician who attains dual status and later loses his Reserve status for reasons outside his control will be involuntarily reassigned or removed."
This provision of the agreement was necessary, because, absent legislation removing Reserve technicians from the competitive civil service, they cannot be discharged except "for cause." 5 U.S.C. § 7501.
Prior to 1968, National Guard technicians were not part of the federal civil service system. Under then existing regulations, they were required to be members of the Guard, and lost their civilian employment when separated from the Guard.
The primary purpose of the National Guard Technicians Act of 1968 was to establish Guard technicians as federal employees and to provide them with the full panoply of civil service fringe and retirement benefits.
However, in the National Guard Technicians Act, Congress codified the existing requirement that Guard technicians be discharged from their civilian employment when separated from the Guard. To reconcile this requirement with the general requirement that civil servants can be removed only "for cause," Congress placed Guard technicians in the excepted, or non-competitive, civil service, 32 U.S.C. § 709(d), which is exempt from the "for cause" requirement, See 5 U.S.C. §§ 2102-2103, 7501.
In sum, the differential treatment of Army Reserve technicians and National Guard technicians that the plaintiffs argue violates the equal protection guarantee grows out of the fact that Reserve technicians were originally not required to be Reserve members, and, as members of the competitive civil service, could not be discharged except for cause, whereas Guard technicians were originally required to be Guard members and could be, and were, discharged when separated from the Guard. To determine whether this historical explanation for such differential treatment suffices to justify that treatment under the equal protection clause, two questions must be resolved. First, was it rational, when Congress enacted the National Guard Technicians Act, to adopt the existing requirement that Guard technicians be discharged when separated from the Guard? Second, was it rational to do so without concurrently establishing a similar requirement for Reserve technicians?
The first question is easily answered. Congress was faced with a policy judgment which required it to balance technicians' interest in job security against the Guard's interest in integrating technicians' civilian and military roles to promote military readiness and effectiveness. The decision reached by Congress can hardly be considered irrational. By continuing an existing practice, Congress minimized the disruptive impact of the new legislation on Guard operations, and maintained existing expectations. More importantly, Congress had the benefit of the Guard's prior experience with the requirement that technicians be discharged when separated from the military, and the opportunity to compare its effects with the effects of the corresponding requirement of the Reserve technicians program.
Congress evidently concluded that the existing Guard technician program incorporated the better alternative.
The question remains, however, whether in view of this conclusion it was rational not to adopt, at the same time, a similar requirement for Reserve technicians? The short answer is that "It is no requirement of equal protection that all evils of the same genus be eradicated or none at all." Railway Express Agency, Inc. v. New York, 336 U.S. 106, 110, 69 S. Ct. 463, 466, 93 L. Ed. 533 (1949). "(R)eform may take one step at a time, addressing itself to the phase of the problem which seems most acute to the legislative mind." Williamson v. Lee Optical Co., 348 U.S. 483, 489, 75 S. Ct. 461, 465, 99 L. Ed. 563 (1955).
When the applicable standard of equal protection analysis is that of legislative rationality, those who challenge legislation simply on the grounds that it does not go far enough bear a heavy burden of showing that the legislature acted arbitrarily in limiting the legislation as it did. No such showing has been made here. To the contrary, it is clear that Congress did not act arbitrarily in failing to address itself to the question whether Reserve technicians, too, should be discharged when separated from the Reserve. In matters of this kind, which do not involve "suspect classes" or implicate "fundamental interests,"
Congress is entitled to considerable leeway in which to experiment and deploy alternatives, and "the judiciary is well advised to refrain from imposing . . . inflexible constitutional restraints." San Antonio Independent School District v. Rodriguez, 411 U.S. 1, 43, 93 S. Ct. 1278, 1302, 36 L. Ed. 2d 16 (1973).
Finally, the differential treatment challenged here is not the only difference between the Reserve technicians program and the Guard technicians program. In particular, Reserve technicians, as members of the competitive civil service, are subject to civil service requirements that do not apply to Guard technicians.
Each program has its own "package of benefits, requirements, and restrictions serving many different purposes," and it is reasonable to assume that Congress "made its judgments in light of those amalgamations of factors." Vance v. Bradley, 440 U.S. 93, 99 S. Ct. 939, 949, 59 L. Ed. 2d 171(1979).
In sum, we find that Congress acted rationally in codifying the pre-existing requirement that Army National Guard technicians be discharged from their civilian employment when separated from the National Guard, or in failing to enact legislation creating a similar requirement for Army Reserve technicians at the same time. Accordingly, the plaintiffs' claim that their discharge from their technician employment denied them the equal protection of the laws must be dismissed.
For the reasons stated, defendants' motion for summary judgment dismissing the complaint in this action is granted.
It is so ordered.