reasoning that, “not only is there evidence that this is a federal matter, but regardless of what this court orders, we cannot force the federal government to pay for or approve Rise’s active duty status[;][c]ourts should not enter orders they cannot enforce”
How later courts described this case
- reasoning that, “not only is there evidence that this is a federal matter, but regardless of what this court orders, we cannot force the federal government to pay for or approve Rise’s active duty status[;][c]ourts should not enter orders they cannot enforce”
Written by the judges who cited it.
The opinion
PELLEGRINI, Judge,
Dissenting.
I respectfully dissent from the majority’s decision because this Court lacks jurisdiction to hear the matter.
Galen E. Rise (Rise) was an enlisted member of the National Guard on full-time active federal service pursuant to 82 U.S.C. § 502 (f) as part of the Active Guard/Reserve (AGR) program from June 16, 1985, until his discharge for misconduct on May 31, 2000. After he was notified of the pending discharge, he filed a petition for review with this Court regarding the decision of the Department of Military and Veterans Affairs (Department) and the Adjutant General to involuntarily separate him from the AGR program. The Department filed a motion to dismiss, arguing that this Court lacked jurisdiction to hear the matter because the Adjutant General’s determination was a federal action under federal regulation to dismiss a federal employee. The majority disagrees, finding that this Court has jurisdiction to hear the matter but that the record is incomplete for a proper review of the issues raised by Rise and remands the case for further proceedings. I disagree with the majority that we may hear this case because this is not an appeal from a Commonwealth agency but rather an appeal by a federal employee from a decision of a federal agency.
Although the majority concludes that Rise was a state employee because he was a member of the National Guard in the AGR program and, therefore, was a member of the state militia and not a soldier in *266 the United States Army, it overlooks that Kise was on full-time active federal service pursuant to 32 U.S.C. § 502 (f), a federal statute; he was paid by the federal government; he wore the uniform of the United States Army and was subject to the military’s direction and control; and the AGR program is instituted by, administered by and subject to the direction of the federal government. Further, the investigation into Rise’s misconduct was conducted pursuant to the provisions of a Department of the Army regulation, AR 15-6. This is relevant because, not only is there evidence that this is a federal matter, but regardless of what this court orders, we cannot force the federal government to pay for or approve Rise’s active duty status. Courts should not enter orders they cannot enforce.
Not only do I disagree with the majority decision because it says that we have jurisdiction over someone serving on active duty status, I would still disagree if only state money was involved, and the Adjutant General was making his decision solely as a state officer. Serving in the National Guard is not like being an employee for PennDot or the State Police; it is still serving in the military, and courts do not interfere in military decisions. By making the Administrative Agency Law applicable to the National Guard, what it does is “civilianize” the National Guard by making Adjutant General decisions involving active duty members “employment status” or, for that matter, other similar decisions subject to judicial review. At the end of the day, we have to recognize that normal civilian principles do not translate well to the National Guard. It is neither a “job” nor an employment “opportunity” nor are we expending our treasury so that troops can parade; the National Guard is being prepared to wage war, involving killing and dying. If the military believes that Rise’s misconduct means that he should not serve, we should not interfere.
Accordingly, I dissent.
Judge LEADBETTER joins in this dissenting opinion.