In Re Sealed Case

United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued September 15, 2008 Decided January 6, 2009

No. 07-5251

IN RE: SEALED CASE

______

Appeal from the United States District Court

for the District of Columbia

(No. 03cv02071)

______

David P. Sheldon argued the cause for appellant. With

him on the brief was Raymond J. Toney.

Lanny J. Acosta, Jr., Assistant U.S. Attorney, argued the

cause for appellee. With him on the brief were Jeffrey A.

Taylor, U.S. Attorney, R. Craig Lawrence, Assistant U.S.

Attorney, and Brian C. Baldrate, Special Assistant U.S.

Attorney.

Before: ROGERS, TATEL, and KAVANAUGH, Circuit

Judges.

Opinion for the Court filed by Circuit Judge TATEL.

Opinion concurring in the judgment filed by Circuit

Judge KAVANAUGH.

TATEL, Circuit Judge: Appellant, a member of the

Vermont Army National Guard, sued the Department of the

2

Army, claiming that the Vermont Army National Guard

released his personal information in violation of the Privacy

Act. The parties agree that the Privacy Act protects state

guardsmen while on active federal duty. Appellant, however,

was not on active federal duty at the time his personal

information was released. For the reasons set forth below, we

hold that the Privacy Act protects guardsmen even when they

are not on active federal duty.

I.

Though organized in part through the states, the National

Guard functions as “an integral part of the first line defenses

of the United States,” 32 U.S.C. § 102. Its organization stems

from Article I, Section 8 of the U.S. Constitution, which gives

Congress authority “[t]o provide for organizing, arming, and

disciplining, the militia, and for governing such part of them

as may be employed in the service of the United States,

reserving to the states respectively, the appointment of the

officers, and the authority of training the militia according to

the discipline prescribed by Congress.” U.S. CONST. art. I, §

8. Through the Department of Defense’s National Guard

Bureau, the Department of the Army extends federal

recognition to state National Guard units that comply with

federal criteria; it may withdraw recognition if a unit ceases to

comply. 10 U.S.C. § 10503(8). These state National Guard

units are known as the Army National Guard. 32 U.S.C. §

101(4). Together, all federally recognized state units

comprise one of the reserve components of the Army, known

as the Army National Guard of the United States. 10 U.S.C. §

10105. As the Supreme Court has explained, “[t]he Federal

Government provides virtually all of the funding, the materiel,

and the leadership for the State Guard units.” Perpich v.

Dep’t of Def., 496 U.S. 334, 351 (1990). Although states are

responsible for training the Army National Guard and rely on

their units under gubernatorial command “to respond to local

3

emergencies,” Perpich, 496 U.S. at 351, such training must

conform to regulations prescribed by the Secretary of the

Army, 32 U.S.C. §§ 501–505. The National Guard thus plays

a dual role, operating under joint federal and state control.

The Privacy Act, 5 U.S.C. § 552a, which covers

“agenc[ies]” including “military department[s],” §§ 552(f)(1),

552a(a)(1), “safeguards the public from unwarranted

collection, maintenance, use and dissemination of personal

information contained in agency records.” Bartel v. FAA, 725

F.2d 1403, 1407 (D.C. Cir. 1984). The Act protects private

information from unnecessary disclosure and enables

individuals to correct errors in their files. § 552a(b), (d). At

issue here are the Act’s non-disclosure provisions.

Appellant, a member of the Vermont Army National

Guard, brought a Privacy Act suit against the Department of

the Army, alleging that a civilian National Guard employee

and other persons had improperly disclosed appellant’s highly

sensitive personal information, causing him emotional,

psychological, and financial harm. Although not disputing

appellant’s assertion that the Vermont Army National Guard

is federally recognized, the Department moved to dismiss,

arguing that the Vermont Army National Guard is not an

“agency” subject to the Privacy Act. The district court,

though recognizing that members of state Army National

Guard units are simultaneously members of the Army

National Guard of the United States, nonetheless held that the

Army National Guard is an agency subject to the Privacy Act

only when on active federal duty. Because the Vermont

Army National Guard was not on active federal duty at the

time of the alleged disclosure, the court granted the motion to

dismiss.

4

The guardsman appeals. Our review is de novo. Muir v.

Navy Fed. Credit Union, 529 F.3d 1100, 1108 (D.C. Cir.

2008).

II.

Although the National Guard’s dual federal-state status

has been described as “murky and mystical,” Bowen v. United

States, 49 Fed. Cl. 673, 676 (2001), this case presents a

straightforward question of statutory interpretation: does the

Privacy Act’s definition of “agency” extend to National

Guard units only when on active federal duty? Answering

yes, the Department emphasizes the level of state control over

National Guard units when not on active federal duty. We

agree with appellant, however, that under the plain language

of the relevant statutes, the Privacy Act’s definition of agency

includes federally recognized National Guard units at all

times.

The Privacy Act adopts the Freedom of Information

Act’s (FOIA) definition of agency. § 552a(a)(1); see also

Dong v. Smithsonian Inst., 125 F.3d 877, 878 & n.1 (D.C. Cir.

1997). Under FOIA, the term “agency” includes “any . . .

military department.” § 552(f)(1). Accordingly, we must

determine whether the Vermont Army National Guard is part

of a “military department.” The U.S. Code clearly answers

this question in the affirmative.

Section 101 of Title 10 defines “military department” to

include “all . . . reserve components . . . under the control or

supervision of the Secretary of the department.” 10 U.S.C. §

101(a)(6). As the Department concedes, Appellee’s Br. 8, the

Army National Guard of the United States is one of those

reserve components. 10 U.S.C. § 10101(1). Section 10105,

in turn, provides that the Army National Guard of the United

States “consists of,” in part, “federally recognized units and

5

organizations of the Army National Guard.” § 10105. Given

that the government nowhere disputes appellant’s assertion

that the Vermont Army National Guard is federally

recognized, the Privacy Act applies. Put another way,

because it is undisputed that the Vermont Army National

Guard enjoys federal recognition, it is part of the Army

National Guard of the United States, which is a reserve

component, which is part of the military department of the

Army, which is included in the Privacy Act’s definition of

“agency.” Although it takes several steps to reach this

conclusion, the result is clear.

At oral argument, Department counsel acknowledged the

accuracy of each of these steps in the logical chain, conceding

that the Vermont Army National Guard is always part of the

Army National Guard of the United States even when not on

active federal duty. Oral Arg. at 14:21. The Department

nonetheless seeks to break the chain by relying primarily on

two other provisions: 10 U.S.C. §§ 10106 and 10107.

Section 10106 says, “The Army National Guard while in

the service of the United States is a component of the Army.”

10 U.S.C. § 10106. According to the Department, this

provision means that the Vermont Army National Guard is

part of a military department and thus subject to the Privacy

Act only while in the service of the United States. Section

10106, however, says nothing about a state National Guard

unit’s status when not in the service of the United States, nor

does it remove state guard units from their continuing status

as part of the Army National Guard of the United States.

Rather, section 10106 addresses one of the two ways in which

Army National Guard units may be called into active federal

service. First, state guard units may be ordered to active

federal duty as reserves of the Army through the Army

National Guard of the United States, 10 U.S.C. § 12301, in

6

which case the Army National Guard of the United States,

always a reserve component of the Army, provides the status

under which the guard units serve. Second, in three specific

circumstances, guard units may be called up directly into

federal service from their state militia status—the President

may “call into Federal service members and units of the

National Guard of any State” in case of invasion, rebellion, or

an inability to execute the laws of the United States with

regular forces. 10 U.S.C. § 12406; see also Perpich, 496 U.S.

at 350 n.21 (describing the “distinct statutes” for “activating

the National Guard of the United States” and for “calling forth

the . . . National Guards of the various States”). Section

10106, which like section 12406 refers to the “National

Guard” not the “National Guard of the United States,”

addresses the status of guard units called up in these three

specific circumstances. In such circumstances, because the

guard units do not serve as part of an already existing reserve

component (the Army National Guard of the United States),

they require some other component status. Section 10106 fills

this gap, providing that the Army National Guard becomes its

own component of the Army when called up in this capacity.

In other words, section 10106 establishes that when the Army

National Guard, as such, is called directly into federal service

(as opposed to when activated through the Army National

Guard of the United States), it constitutes a separate

component of the Army (rather than serving as an activated

reserve of the Army). Section 10106 therefore in no way

undermines our view that the Vermont Army National Guard

is part of a reserve component (and thus of a military

department) regardless of federal duty status.

Section 10107 is no more helpful to the Department. It

provides that “[w]hen not on active duty, members of the

Army National Guard of the United States shall be

administered, armed, equipped, and trained in their status as

7

members of the Army National Guard.” 10 U.S.C. § 10107.

As its plain language indicates, section 10107 addresses the

status of individual servicemen, not the status of state Army

National Guard units within the military department. Because

the Privacy Act applies to agencies, not individuals, our

concern here is with the organizational status of National

Guard units, meaning that section 10107 has nothing to do

with the issue before us. See Martinez v. Bureau of Prisons,

444 F.3d 620, 624 (D.C. Cir. 2006) (dismissing Privacy Act

and FOIA claims against individuals because “[b]oth statutes

concern the obligations of agencies as distinct from individual

employees in those agencies”). In any event, nothing in

section 10107 strips non–federally activated guardsmen of

their membership in the Army National Guard of the United

States, nor could it. Under Title 10, “a person who enlists in

the Army National Guard . . . shall be concurrently enlisted

. . . as a Reserve of the Army for service in the Army National

Guard of the United States.” 10 U.S.C. § 12107(b)(1).

Indeed, by its terms section 10107 confirms that non–

federally activated guardsmen remain “members of the Army

National Guard of the United States.” § 10107.

We read sections 10106 and 10107 as demonstrating that

what changes when the Vermont Army National Guard passes

in and out of active federal duty is the chain of command, not

the guard’s status as an agency under the Privacy Act. When

called into federal service under section 12406, the Army

National Guard, as a “component of the Army,” § 10106,

operates under the direct command of the Secretary of the

Army. Even when not serving in this capacity, however,

guard units remain part of the Army National Guard of the

United States, § 10105, a reserve component that is itself

under the control and supervision of the Secretary. Similarly,

although when not federally activated as reserves of the Army

under section 12301, guardsmen regain state status and report

8

directly to the governor, § 10107, their guard unit nonetheless

retains its status as part of the Army National Guard of the

United States, § 10105.

In sum, neither section 10106 nor section 10107 deprives

the Army National Guard of its continuous status as part of

the Army National Guard of the United States. That can

occur only if the Secretary withdraws the Army National

Guard’s federal recognition. § 10105; see also Nelson v.

Geringer, 295 F.3d 1082, 1093 (10th Cir. 2002) (interpreting

analogous provisions under Title 10 applicable to the Air

National Guard of the United States and holding that “[e]ven

when the Guard is not federally activated . . . the Wyoming

Air and Army National Guard units remain reserve

components of the United States Air Force and Army

respectively, and most if not all functions performed by the

state are subject to federal requirements and regulations”). As

long as the Secretary has not withdrawn the Vermont Army

National Guard’s federal recognition, it is part of an agency

for purposes of the Privacy Act whether or not federally

activated.

We think it worth noting that the Department’s own

regulations and interpretation of the Privacy Act treat the Act

as applicable to the National Guard without regard to federal

duty status. Army Regulation 340-21, issued pursuant to the

Privacy Act, sets forth the Army Privacy Program and

“applies to the Active Army, the Army National Guard, the

U.S. Army Reserve, and the Army and Air Force Exchange

Service.” U.S. DEP’T OF THE ARMY, REG. 340-21, THE ARMY

PRIVACY PROGRAM i (1985), available at http://www.army.

mil/usapa/epubs/pdf/r340_21.pdf (emphasis added); see also

U.S. DEP’T OF THE ARMY, REG. 22-55, THE DEPARTMENT OF

THE ARMY FREEDOM OF INFORMATION ACT PROGRAM i

(1997), available at http://www.army.mil/usapa/epubs/pdf/

9

r25_55.pdf (containing identical language applying FOIA

regulations to the National Guard). Even more revealing,

because the Privacy Act generally requires agencies to obtain

written consent for and to keep an accounting of disclosures

of information outside the agency, § 552a(b)(1), (c), if the

National Guard and the Army were not part of the same

agency, the Army would have to obtain consent and provide

an accounting virtually every time it shared records with a

National Guard unit. The Department, however, has never

interpreted the Privacy Act as requiring such action.

According to an advisory opinion entitled “Applicability of

the Privacy Act to National Guard Records” issued by the

Defense Department’s Defense Privacy Board, which

oversees implementation of the Privacy Program, 32 C.F.R. §

310.9(a)(2)(i), the National Guard and the Army are part of

the same agency for Privacy Act purposes. Because its

analysis is particularly compelling, we quote the relevant

section of the opinion in full:

Reserve components of the Army and the Air

Force include the Army and Air National Guards of

the United States respectively, which are composed

of federally recognized units and organizations of the

Army or Air National Guard and members of the

Army or Air National Guard who are also Reserves

of the Army or Air Force. 10 U.S.C. §§ 3077 and

8077 [now 10 U.S.C. §§ 10105 and 10111]. 10

U.S.C. § 275 requires the Departments of the Army

and the Air Force to maintain personnel records on

all members of the federally recognized units and

organizations of the Army and Air National Guards

and on all members of the Army or Air National

Guards who are also reserves of the Army and Air

Force. Such records are “maintained” by the Army

or Air Force for the purposes of the Privacy Act.

10

These records are not all located at the National

Guard Bureau. Some are in the physical possession

of the state adjutant general. However, records need

not be physically located in the agency for them to

be maintained by the agency. See OMB Guidelines.

Records located at the state level are under the

direct control of the Army and Air Force in that they

are maintained by the state under regulations (NGR

600200 and AFR 3544) implementing 10 U.S.C. §

275, and promulgated by authority of the Secretaries

of the Army and the Air Force under 10 U.S.C. §

280. Therefore, the records are Army or Air Force

records and subject to the provisions of the Privacy

Act.

That the records are subject to the Privacy Act

does not mean they cannot be used by the members

of the state national guards. The state officials using

and maintaining the records are members of the

reserves (members of the Army or Air Force

National Guard of the United States). Disclosure to

them in performance of their duties is disclosure

within the Department of Defense not requiring a

published routine use or an accounting.

DEFENSE PRIVACY BOARD, U.S. DEP’T OF DEF., ADVISORY

OPINION 5, APPLICABILITY OF THE PRIVACY ACT TO NATIONAL

GUARD RECORDS (1992) (emphasis added), available at

http://www.defenselink.mil/privacy/opinions/op0005.htm.

Based on the same straightforward statutory interpretation we

adopt here, then, the Department itself has concluded that the

members of the National Guard and the Army are part of the

same agency for Privacy Act purposes.

11

Although finding this statutory analysis “alluring,” the

district court ultimately rejected it given “the substantial body

of case law that has explained the National Guard’s hybrid

federal-state status.” In re Sealed Case, No. 03-cv-02071,

Slip op. at 6 (D.D.C. May 25, 2007). In particular, the district

court relied on Perpich v. Department of Defense, in which

the Supreme Court held that nothing in the Militia Clauses

requires gubernatorial consent to Congress’s calling up the

National Guard for training outside the United States. 496

U.S. at 354–55. In reaching that conclusion, the Court noted

that all guardsmen enlist simultaneously in both the National

Guard and the National Guard of the United States, id. at 345,

and that “a member of the Guard who is ordered to active

duty in the federal service is thereby relieved of his or her

status in the State Guard for the entire period of federal

service,” id. at 346. Although Perpich thus stands for the

proposition that federally activated guardsmen temporarily

lose their State National Guard status, nothing in the

decision’s holding severs the continuous link between the

Army National Guard of the United States and federally

recognized units of the Army National Guard when not on

active federal service. § 10105; see also Matreale v. N.J.

Dep’t of Military & Veterans Affairs, 487 F.3d 150, 156 (3d

Cir. 2007) (interpreting Perpich as holding only that a

guardsman loses state status while on federal duty, not that a

guardsman loses federal status when deactivated). Moreover,

Perpich does not involve the Privacy Act, and as we

demonstrated above, the Privacy Act is clear: National Guard

units, whether activated or not, are part of an “agency.” Nor

do the other appellate decisions the district court cites and the

parties debate compel a different result. None of those

decisions deals with the Privacy Act or interprets the Act’s

definition of “agency.” Moreover, to the extent the cases

discuss the federal or state nature of a particular act by a

National Guard member, they have little to do with the

12

question we face here, i.e., whether, as an organization, a

non–federally activated National Guard unit falls within the

Privacy Act's definition of “agency.”

The Department reminds us that the Privacy Act

constitutes a waiver of sovereign immunity that “‘must be

unequivocally expressed in statutory text.’” Webman v. Fed.

Bureau of Prisons, 441 F.3d 1022, 1025 (D.C. Cir. 2006)

(quoting Lane v. Pena, 518 U.S. 187, 192 (1996)). True

enough, but the Privacy Act clearly waives sovereign

immunity for improper disclosures by agencies, § 552a(g),

and expressly defines “agency” as including military

departments, § 552(f)(1). And as we have demonstrated

above, the Army National Guard is clearly part of a military

department. Though requiring several steps to discern, the

waiver is “unequivocally expressed in statutory text.”

Webman, 441 F.3d at 1025.

In still another effort to avoid the Act’s plain language,

the Department invokes the Federal Tort Claims Act (FTCA),

28 U.S.C. §§ 1346(b), 2672, which, like the Privacy Act,

defines “[f]ederal agency” as including “military

departments,” 28 U.S.C. § 2671. The FTCA expressly waives

immunity for torts committed by an “employee of the

government,” a term that includes both agency employees

and, separately, National Guard members “while engaged in

training or duty” under specific statutory provisions. § 2671.

According to the Department, “[i]n contrast to the FTCA,

where Congress unambiguously waived immunity for actions

of the National Guard in limited circumstances, Congress did

not provide such a specific waiver of sovereign immunity for

State National Guard units under the Privacy Act.”

Appellee’s Br. 19. That Congress expressly defined

“employee” under the FTCA does not, however, imply that it

must define “agency” under the Privacy Act more

13

specifically. And Congress’s decision to limit FTCA liability

to acts by National Guard members in specific situations

neither suggests nor even hints that the National Guard itself

qualifies as an agency under the Privacy Act only in those

situations.

Finally, the Department warns that were we to interpret

the Privacy Act as extending to non–federally activated Army

National Guard units, “all State National Guards and their

members would always be on federal status and could always

be seen as federal actors,” meaning that “[t]he United States

would face potential liability for any and all actions

committed by State Guard units and members regardless of

the capacity in which the unit or the individual was

purportedly serving.” Appellee’s Br. 15–16. We disagree.

Determining what laws apply to the National Guard is a

question of statutory interpretation, whose resolution

necessarily turns on the particular provision at issue in each

case. Here the statutes could hardly be clearer: the Privacy

Act defines agency as including any military department,

which includes the Army National Guard of the United States,

of which a federally recognized Army National Guard is a

continuous component. This conclusion says nothing

whatsoever about the United States’s liability under any other

statute.

For the foregoing reasons, the order dismissing the

complaint is reversed.

So ordered.

KAVANAUGH, Circuit Judge, concurring in the judgment:

The Department of the Army is a military department, and it

is therefore an agency subject to the Privacy Act. See

5 U.S.C. §§ 552(f)(1), 552a(a)(1); 10 U.S.C. § 101(a)(8). The

Army is defined to include “reserve components” under “the

control or supervision” of the Secretary. See 10 U.S.C.

§ 101(a)(6). The statutory list of reserve components includes

the “Army National Guard of the United States,” which is a

federal entity under the control or supervision of the

Secretary. § 10101(1). The Army National Guard of the

United States is in turn defined to include the “federally

recognized units and organizations” of the state National

Guards. § 10105.

The question in this appeal concerns one of those state

National Guards, the Vermont Army National Guard. It is

subject to the federal Privacy Act if it is either (i) itself a

“reserve component” of the Army “under the control or

supervision” of the Secretary of the Army or (ii) a “federally

recognized unit or organization” of the Army National Guard

of the United States.

The Vermont Army National Guard is not itself a

“reserve component” of the Army under the control or

supervision of the Secretary. The statute lists the seven

specific entities that qualify as reserve components of the

armed forces. They are the Army National Guard of the

United States, the Air National Guard of the United States, the

Army Reserve, the Navy Reserve, the Marine Corps Reserve,

the Air Force Reserve, and the Coast Guard Reserve.

§ 10101(1). The statute does not list state National Guards as

reserve components. Even assuming arguendo that the

Vermont Army National Guard were a reserve component of

the federal Army, it is not under the “control or supervision”

of the President, Secretary of Defense, or Secretary of the

Army, except in those rare circumstances when a state Guard

itself is federally called forth for domestic purposes under the

2

Militia Clause. See U.S. CONST. art. I, § 8, cl. 15

(empowering Congress to provide for “calling forth the

Militia to execute the Laws of the Union, suppress

Insurrections and repel Invasions”); 10 U.S.C. §§ 331-

33, 12406. The majority opinion does not dispute the

conclusion that the Vermont Army National Guard is not

itself a reserve component of the Army under the control or

supervision of the Secretary.

The trickier question in this case is whether the Vermont

Army National Guard is a federally recognized unit or

organization of the Army National Guard of the United States.

The plaintiff alleges that it is – albeit without citations or

support. I am dubious.

The Army National Guard of the United States is an

umbrella federal entity that was created in 1933 as part of a

federal-state effort to work around Militia Clause limits on

federal use of state National Guards. The goal was to

authorize federal use of state National Guard units not just for

the domestic purposes specified by the Militia Clause but also

for foreign wars. Under this arrangement the states ensure, in

return for federal funding, that state Guard units and members

become part of both the state Guard and the federal Army

National Guard of the United States. This allows the Federal

Government to quickly activate Guard units – as units – and

deploy them into foreign wars, as exemplified by the many

Guard units that have been activated and continue to serve in

Iraq and Afghanistan. See generally Perpich v. Department

of Defense, 496 U.S. 334 (1990); Frederick Bernays Wiener,

The Militia Clause of the Constitution, 54 HARV. L. REV. 181,

205-10 (1940).

To implement this federal-state cooperative effort, the

members of each state’s Army National Guard are also

3

members of the federal Army National Guard of the United

States. In addition, individual units of each state’s National

Guard – such as the 86th Infantry Brigade Combat Team of

the Vermont Army National Guard – are also federally

recognized units of the Army National Guard of the United

States and can be ordered into active federal status in

wartime.

Even though they share members and units, each state’s

Army National Guard and the federal Army National Guard

of the United States remain “distinct organizations” – the one

commanded by the state’s Governor, the other commanded by

the President of the United States. Perpich, 496 U.S. at 345.

The plaintiff here therefore appears to be legally and

factually incorrect when he asserts that the Vermont Army

National Guard is itself “a federally recognized Army

National Guard unit.” Appellant’s Br. at 33 (emphases

added). Consistent with the principle that the federal Army

National Guard of the United States and the state Guard are

separate entities that share units and members, the federal

recognition process seems to envision federal recognition of

units and organizations within a state’s Guard, but not of the

entire state Guard as an entity. See, e.g., Organization and

Federal Recognition of Army National Guard Units, Nat’l

Guard Reg. 10-1 § 2-2, at 5-6. To be sure, it is conceivable

that the Vermont Army National Guard as an entity in fact has

been federally recognized and is thus itself part of the Army

National Guard of the United States. But that seems

somewhat unlikely given the governing legal structure and the

apparent practice. Cf. NATIONAL GUARD ALMANAC 2001

141-44 (listing “Major Army National Guard Units” not

including any state National Guards); United States Army

Website, Organization, Units and Commands (listing

4

“National Guard Units” not including any state National

Guards).

In any event, the parties have offered no information

beyond the plaintiff’s allegation about whether the Vermont

Army National Guard is a federally recognized unit or

organization of the Army National Guard of the United States

– or, more to the point, about whether the person in the

Vermont Army National Guard who allegedly disclosed

information about the plaintiff in violation of the Privacy Act

was part of a federally recognized unit or organization of the

Army National Guard of the United States. If the

Government produces evidence that the person who allegedly

disclosed the information was not part of a federally

recognized unit or organization of the Army National Guard

of the United States, it presumably could prevail on a

summary judgment motion.* I agree with the majority

opinion, however, that the plaintiff’s complaint cannot be

dismissed on this sparse record at the motion to dismiss stage.

I respectfully concur in the judgment.

*

The Government also suggests that, for Privacy Act

purposes, a federally recognized state Guard unit is part of the

federal Army National Guard of the United States only when the

unit is ordered into active federal duty. But as the majority opinion

concludes, there is no statutory support for that broad-brush theory:

Under the statutory scheme, a federally recognized unit or

organization of the Army National Guard of the United States is

always part of the Army National Guard of the United States – and

the Army National Guard of the United States in turn is a reserve

component of the Army under the control or supervision of the

Secretary.