Amicus Curiae Brief — Cross v. Federal Labor Relations Authority

IN THE OFFICE OF THE CLERK

Supreme Court of the Anited States

MAJOR GENERAL JAMES H. LIPSCOMB III, IN HIS OFFICIAL

CAPACITIES AS THE ADJUTANT GENERAL OF THE STATE OF

MISSISSIPPI, OF THE MISSISSIPPI MILITIA, OF THE MISSISSIPPI

NATIONAL GUARD, AND AS EXECUTIVE HEAD OF THE

MISSISSIPPI MILITARY DEPARTMENT AND THE MISSISSIPPI

MILITIA, THE MISSISSIPPI NATIONAL GUARD and THE

MISSISSIPPI MILITARY DEPARTMENT,

Petitioners,

Vv.

FEDERAL LABOR RELATIONS AUTHORITY, NANCY SPEIGHT,

IN HER OFFICIAL CAPACITY AS REGIONAL DIRECTOR OF THE

FEDERAL LABOR RELATIONS AUTHORITY, ATLANTA REGION

AND LINDA J. NORWOOD, IN HER FORMER OFFICIAL CAPACITY

AS ACTING REGIONAL DIRECTOR OF THE FEDERAL LABOR

RELATIONS AUTHORITY, ATLANTA REGION,

Respondents.

On Petition for a Writ of Certiorari to the

United States Court of Appeals

for the Fifth Circuit

BRIEF OF THE NATIONAL GUARD

ASSOCIATION OF THE UNITED STATES

IN SUPPORT OF PETITIONERS

ROBERT D. GHOLSON *

GHOLSON & ORR, PLLC

535 North 5th Avenue

Laurel, MS 39441-6523

(601) 425-0400

* Counsel of Record Counsel for Amicus Curiae

National Guard Association

of the United States

WILSON-EPES PRINTING Co., INC. — (202) 789-0096 — WASHINGTON, D. C. 20001

QUESTIONS PRESENTED

Whether the Federal Labor Relations Authority has the

power to order state National Guards and their state Adjutants

General” to participate in federal union representation

elections concerning Guard personnel.

Whether the valuable Tenth and Eleventh Amendment

rights of a state official and a state agency may be trumped

by federal statute, when Congress lacks the constitutional

authority to pierce those immunities with its Article I powers.

" As explained by Petitioners, Adjutants General are the senior mili-

tary commander of each state’s National Guard. They are the National

Guard analogue to the Chairman of the Joint Chiefs of Staff in the

federal military.

(i)

TABLE OF CONTENTS

Page

QUESTIONS PRESENTED ...............ccccssssssssssssssssessseee i

TABLE OF AUTHORITIEG................csccsssesssessseeeseees . iv

INTEREST OF THE AMICUS CURIAE............0000000000 l

SUMMARY OF ARGUMENT..............cccccsssssscsssceseeees 2

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I. THIS COURT SHOULD GRANT THE

WRIT TO UNDO THE HARM TO OUR

CAREFULLY CRAFTED FEDERAL

SYSTEM CAUSED BY THE FIFTH

CIRCUIT’S FINDING THAT A STATE

ADJUTANT GENERAL AND _ STATE

NATIONAL GUARD CAN BE FEDERAL

EXECUTIVE AGENCIES WHILE IN A

STATE COMMAND STATUG...............:c0000000 3

Il. THIS COURT SHOULD GRANT THE

WRIT TO PREVENT HARM _= TO

NATIONAL SECURITY CAUSED BY THE

POTENTIAL INTERACTION OF THE

DECISION BELOW AND THE POSSE

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(iii)

iV

TABLE OF AUTHORITIES

CASES

Clark v. United States, 322 F.3d 1358 (Fed. Cir.

Jones v. New York State Div. of Military Affairs,

166 F.3d 45 (2d Cir. 1999) .........ccccccsssssrrresssseees

Maryland ex rel. Levin v. United States, 381 U.S.

41 (1965), vacated on other grounds, 382 U.S.

RE ET iivnacinnctnsiadbicinsacicitishiibldicibiisanadtaliipiihtiiiilads

Perpich v. DOD, 496 U.S. 334 (1990) .........ssseesees

Selective Draft Law Cases, 245 U.S. 366 (1918)..

United States v. Hutchings, 127 F.3d 1255 (10th

3 Af, RO ROE PRIN Cees a Se Se eR eR

Zitser v. Walsh, 352 F. Supp. 438 (D. Conn.

CONSTITUTIONAL PROVISIONS

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FEDERAL STATUTES

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SET BR BF sinetssencsvsnnevernssepiabinicniantaniaimmnnintivis

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MISSISSIPPI STATUTES

PING, COS Fe, BSF rE cccescconesenvensccssorctssevnecninns

Miss. Code Ann. § 33-5-1 ............ccsccsssccssssscesesevees

Miss. Code Ann. § 33-1-1 .............ccccccsccsssssssccccsess

passim

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9

6

Vv

TABLE OF AUTHORITIES—Continued

OTHER MATERIALS

B. Rich, “The National Guard and Posse

Comitatus” 1994 Army Law 16...........sccsccecseees 9

The Militia Clauses, A National Guard,

Federalism: A Constitutional Tug Of War, 57

George Washington Law Review 3-28, 3-32

(Dec., 1988)(quoting the Records of the

Federal Convention of 1787, at 293 M.

CRAIN TH, PRET) bina ccsiniicosisiersnsnistniisenieseonanionins 5

Page

BRIEF OF THE NATIONAL GUARD

ASSOCIATION OF THE UNITED STATES

IN SUPPORT OF PETITIONERS

INTEREST OF THE AMICUS CURIAE ' |

This Amicus Curiae Brief is filed by the National Guard

Association of the United States, or NGAUS, an organization

that strives to enhance the readiness of each state’s National

Guard and to ensure that they meet their essential goal as full

partners in the conventional forces defending our Nation.

NGAUS was created in 1878 to provide united National

Guard representation before Congress. In the first con-

structive meeting of officers from the North and South after

Reconstruction, the organizational meeting of NGAUS had

the goal of obtaining better equipment, standardized training,

and a more combat-ready force by petitioning Congress for

resources. Today, well over a century later, NGAUS has the

Same mission.

According to its by-laws, the purpose of NGAUS is “to

promote the national security of the United States of

America.” NGAUS is comprised of commissioned officers

and warrant officers of each state and territory’s Army and

Air National Guard who are concerned about the role of the

Guard, as well as a continuation of a strong militia in the

Total Force construct. One key part of achieving this goal

includes striving to ensure the successful continuation

through promotion of the unique, historic dual federal and

' Pursuant to Supreme Court Rule 37.2(a), NGAUS states that the

Parties to this appeal have consented to the filing of this amicus brief.

Pursuant to Supreme Court Rule 37.6, NGAUS states that counsel for

Petitioners did assist NGAUS’ counsel in the preparation of this brief, and

that no person or entity other than NGAUS made any monetary contri-

bution to the preparation or submission of this brief.

2

state missions of each state and territory’s Guard, so to

further their goals and mission.

NGAUS has participated in litigation when it believed that

a national interest is was stake or that the issue of states’

rights was at risk. In the big picture, this means ensuring that

the line of demarcation between federal and state power does

not become blurred or worse, progressively inched further

toward federal domination. This delicate balance of power is

threatened by the decisions below in this case in a way that

directly affects the goals and purposes of the NGAUS.

SUMMARY OF ARGUMENT

This case presents an issue of national importance, whether

the FLRA has the power to order state National Guards and

their state Adjutants General to participate in federal union

representation elections concerning Guard Technician per-

sonnel. The resolution of this question has an importance far

exceeding the impact of potential unionization on a certain

class of Guard personnel.

First, in order to answer the question in the affirmative, the

Fifth Circuit and district court below had to find that state

Guards and their Adjutants General act in a federal capacity,

even though in a state command status, when administering

Guard Technicians. This finding threatens the carefully

crafted state/federal Guard balance, in a manner detrimental

to our federal system and contrary to this Court’s holding in

Perpich v. DOD, 496 U.S. 334, 345 (1990).

Second, the decisions below will, as suggested by

Petitioners, have unintended and negative national security

consequences. The Fifth Circuit’s holding that a state Guard

in a state command status can be a federal agency and part of

the National Guard of the United States—a separate entity

that is a federal reserve component—threatens to criminalize

the use of the each state’s Guard for counterterrorism and

NER Te RE ee NT NEMO Se

3

domestic law enforcement operations under the Posse

Comitatus Act, 18 U.S.C. § 1385, at a time when this Nation

is at war. NGAUS respectfully submits that this result, while

surely unintended by the Court of Appeals below, is alone

sufficient cause for the grant of a writ of certiorari in

this case.

ARGUMENT

NGAUS adopts and reasserts the arguments offered by

Petitioners, but would supplement and emphasize those as

follows:

I. THIS COURT SHOULD GRANT THE WRIT TO

UNDO THE HARM TO OUR CAREFULLY

CRAFTED FEDERAL SYSTEM CAUSED BY

THE FIFTH CIRCUIT’S FINDING THAT A

STATE ADJUTANT GENERAL AND STATE

NATIONAL GUARD CAN BE_ FEDERAL

EXECUTIVE AGENCIES WHILE IN A STATE

COMMAND STATUS.

The Fifth Circuit’s decision in this case misapplied the

carefully crafted Congressional and constitutional scheme

delineating the respective spheres of each state’s National

Guard and the federal government. Ignoring Perpich v.

DOD, 496 U.S. 334, 345 (1990), as well as the National

Guard statutory scheme, the Fifth Circuit found that the

Mississippi Guard and its Adjutant General are federal/state

“hybrids”—a finding that infects the entire decision and

allowed the court below to avoid addressing the major

constitutional issues at stake.

Mississippi, as well as every state in the Union, has a state

militia. The Mississippi Militia, of which Petitioner the

Mississippi Guard is a subset, is composed of the “[n]ational

guard, the Mississippi State Guard, and the unorganized

militia.” Miss. Code Ann. § 33-5-1. Pursuant to Miss. Code

4

Ann. § 33-1-1(d) the “Mississippi National Guard [means]

that part of the organized militia of this state which is

organized, equipped and federally recognized under the

provisions of the laws of the United States and of the State of

Mississippi relating to the National Guard.” /d.

The Governor of Mississippi, not the President of the

United States, is the Commander in Chief of the Mississippi

National Guard (unless impressed into federal service). Miss.

Code Ann. § 33-3-1; Miss. Const. art. V, § 119. This is

because, unless called forth by the President under federal

law, the respective states’ National Guards are state militias,

not federal military entities. Perpich v. DOD, 496 U.S. 334,

350-51 (1990) (recognizing that the militias are state entities).

The concept of the state militias pre-dates even that of the

United States or its Constitution. Further, the Founding

Fathers recognized the need for a militia and addressed it in

Article 1, Section 8 of the Constitution, which provides:

The Congress shall have power. .. . ;

(15) To provide for calling forth the Militia to execute

the Laws of the Union, suppress Insurrections and repel

Invasions;

(16) To provide for organizing, arming, and disciplining

the Militia, and for governing such Part of that as may be

employed in the Service of the United States, reserving

to the States respectively, the Appointment of Officers,

the Authority of training the Militia according to the

discipline prescribed by Congress;

U.S. Const., art. I, § 8, cls. 15 & 16.

The records of the Constitutional Convention indicate that

the Founding Fathers were much concerned about the balance

of federal versus state power in the Union and wanted to

ensure that the states retained appropriate control over their

militias. After much debate, the majority of the drafters

decided that the federal government should not have complete

7

power over militia matters and appropriately reserved certain

control to the states. Thus, in striking a balance between

local and national control, the Constitution provides for a

militia with dual control, alternating between federal and

state, under particular circumstances. The Militia Clauses, A

National Guard, Federalism: A Constitutional Tug Of War,

57 George Washington Law Review 3-28, 3-32 (Dec.,

1988)(quoting the Records of the Federal Convention of

1787, at 293 M.(Farrand Ed. 1911)).

The dual control concept has continued unabated to this

day. Yet Congress has over the years modified the statutory

scheme governing the Guard, so as to streamline its use by

the Nation in times of war or crisis.

For example, following certain problems associated with

the Spanish-American War, Congress enacted statutory

amendments which were known as the Dick Act, of January

21, 1903, 32 Stat.775, in which Congress exercised its power

to organize the militia. The Dick Act provided for an

organized militia to be known as the “National Guard” which

would conform to a regular army organization, be equipped

through federal funds, and be trained by regular army

instructors. Perpich, 496 U.S. at 342.

In 1918, a provision of the National Defense Act which

allowed the federal government to draft Guardsmen for

Overseas assignments was upheld in the Selective Draft Law

Cases, 245 U.S. 366, 368 (1918). In these cases, certain

members of the National Guard challenged the provision of

the National Defense Act which allowed the President to draft

individuals for service overseas. In its opinion, this Court

reasoned that the Militia Clauses were not to be read as a

limitation on Congress’ general war clause power. Impor-

tantly, the National Defense Act as interpreted by this Court

anticipated the concept which would be later known as the

“dual nature of the guard.”

6

In 1933, Congress created a new and separate federal

entity, to be known as the National Guard of the United

States. Perpich, 496 U.S. at 345. To expand federal

authority for activation of individual Guardsmen, and to

remove lingering doubts about the constitutionality of Guard

deployments overseas, each Guardsman on induction was

now required to assume dual statuses. That is, every Guards-

man was to be a potential” federal reservist as well as a

member of their state’s militia. /d. at 345-46.

The modern dual status Guard system was codified in 1952

in the Armed Forces Reserve Act. Pub. L. 82-476, 66 Stat.

481 (1952), which provided that Guardsmen could be called

out by the President for fifteen days each year for any reason,

subject to the consent of their governor. The requirement for

gubernatorial consent was contested in later years as the role

of the Guard expanded, particularly in an area of overseas

operations which were removed from the continental United

States. As a result certain governors refused to allow their

National Guard units to participate in certain overseas opera-

tions. In response to these local restrictions, the Montgomery

Amendment of 1986, Pub. L. 99-661 § 522, 100 Stat. 3(A)16.

(1986) (codified at 10 U.S.C. § 672 (f) Sub 4 (1986)), was

enacted, removing the requirement of gubernatorial con-

sent for federal training by the National Guard. Perpich, 496

U.S. at 346.

A dispute over the constitutionality of the Montgomery

Amendment came to a head in Perpich v. DOD, 496 U.S. 334

? While all Guardsmen are required to also enlist in the separate federal

reserve component entity - the National Guard of the United States -

federal law does not require them to maintain that membership in order to

remain a member of their state’s Guard. Thus, there are Guardsmen who

do not hold “federal recognition,” yet remain members of their state’s

Guard. E.g., Zitser v. Walsh, 352 F. Supp. 438, 440 (D. Conn. 1972)

(“One may be a member of the National Guard of a state without receiv-

ing federal recognition, but never the reverse’”’).

7

(1990). In Perpich, the Department of Defense had ordered

several state National Guard units to serve on active duty in

Central America. Some state governors opposed these out-

of-country federal missions and refused to consent to the

deployments. As the Montgomery Amendment negated the

effect of the governors’ veto and allowed the deployment of

Guard personnel overseas, Governor Perpich of Minnesota

sued the Department of Defense alleging that it could not

deploy the Minnesota guardsmen without gubernatorial

consent. In a unanimous decision, this Court upheld the

constitutionality of the Montgomery Amendment.

Perpich is key to the instant case, not because of its

holding on gubernatorial consent, but because it carefully

explained and delineated the state versus federal status of the

Guard, as well as Guardsmen. Perpich makes it clear that

National Guardsmen are now members of two legally distinct

and separate organizations—their state’s Guard and the

separate National Guard of the United States, a federal

reserve component. /d. at 347 & 347 n.19. This dual system

requires state National Guard members to simultaneously

enroll in their state’s militia as well as the National Guard of

the United States. 10 U.S.C. §101 (11) & (13).

The implication of this dual system is the key to this case;

it means that each member of the National Guard of the

United States when on federal active duty is relieved from

duty in the National Guard of his state from the effective date

of the federal duty order, and remains a federal soldier until

the individual is relieved from that duty. At the time

the individual is relieved from federal duty, he or she

reverts back to the membership in the state Guard unit. 32

U.S.C. § 325(a).

Most importantly, however, unless and until ordered to

active duty in the Army or Air Force, National Guard

members retain their state status as members of their separate

state Guard unit. Perpich, 496 U.S. at 345. As Justice

el,

8

Stevens explained, Guardsmen “[n]ow must keep three hats

in their closets—a civilian hat, a state militia hat, and an army

hat—only one of which is worn at any particular time.”

Id. at 348 (emphasis added). This is “dual” status, not

“hybrid” status.

In sum, as this Court has previously found, unless fed-

eralized, Guardsmen serve in their state capacity as state

militiamen:

It is not argued here that military members of the Guard

are federal employees, even though they are paid with

federal funds and must conform to strict federal

requirements in order to satisfy training and promotion

standards. Their appointment by state authorities and

the immediate control exercised over them by the States

makes it apparent that military members of the Guard

are employees of the States. ...

Maryland ex rel. Levin v. United States, 381 U.S. 41, 48

(1965), vacated on other griéunds, 382 U.S. 159 (1965).

Likewise, each state’s Guard is itself a state agency. F.g.,

Jones v. New York State Div. of Military Affairs, 166 F. 3d

45, 49 (2d Cir. 1999) (New York Guard is state entity);

Hefley v. Textron, Inc., 713 F, 2d 1487, 1493 (10th Cir. 1983)

(Guard “[iJs an arm of the state and entitled to any immunity

which the state possesses. . .”’).

Guardsmen can also be impressed by the President directly

into federal service. E.g., 10 U.S.C. §§ 331-333 & 12406

(authorizing executive officials to call forth the militia of the

States). Finally, they can be mobilized to active duty in the

federal military through their membership in the separate

federal reserve component, the National Guard of the United

States. Perpich, 496 U.S. at 350 n.21 (recognizing that

“Congress has by different statutes provided for activating the

National Guard of the United States and for calling forth the

militia, including the National Guards of the various States”’).

9

Thus, the above discussed Titles 10 and 32 Guard statutory

scheme, as well as Perpich, make it clear that an Adjutant

General and a state Guard’s status-at dny given time is a

function of who has command authority, a governor or the

President. This is because. in the context of the Guard,

whether one is in a state or federal status ““[dJepends solely on

whether command of the Guardsman has been taken away

from a state’s governor by one authorized to do so by

Congress.” United States v. Hutchings, 127 F. 3d 1255,

1258-59 (10th Cir. 1997). (emphasis added); accord Gilbert

v. United States, 165 F. 3d 470, 473 (6th Cir. 1999) (quoting

B. Rich, The National Guard and Posse Comitatus” 1994

Army Law 16, 19 (“‘[t]he issue of status depends on com-

mand and control and not on whether: state or federal benefits

apply; state or federal funds are being used; the authority for

the duty lies in state or federal law; or any combina-

tion thereof’”’)).

Here, the Fifth Circuit’s finding that the Adjutant General

and the Mississippi Guard are “hybrids” that can simul-

taneously hold both a state and federal status, is directly

contrary to the holding of Perpich, 496 U.S. 345-46, that

Guardsmen cannot—as a matter of law—wear a state and a

federal hat at the same time. This mutually exclusive duality

is important, because, as pointed out by Petitioners, the state

Status of nonfederalized Guardsmen is a “[c]onstitutional

aspect” of their service. Perpich, 496 U.S. at 349.

The Fifth Circuit’s decision in this case threatens this

carefully crafted Congressional and constitutional scheme

delineating the respective spheres of state versus federal

military power. It also runs contrary to the Founding Father’s

vision for dual control of the militia.

Simply put, it is very important—both as a matter of

Federalism, as well as the interworkings of the Guard and the

Active Components—that the demarcation line of authority

between the federal military and each state’s militia be

10

maintained. For this reason, NGAUS respectfully submits

that a writ of certiorari should be granted to review and

overturn the decision below, which mistakenly conflated the

mutually exclusive state versus federal statuses of each state’s

Guard and Adjutant General.

II. THIS COURT SHOULD GRANT THE WRIT TO

PREVENT HARM TO NATIONAL SECURITY

CAUSED BY THE POTENTIAL INTERACTION

OF THE DECISION BELOW AND THE POSSE

COMITATUS ACT.

If left undisturbed, the Fifth Circuit’s decision will harm

national security. It should go without saying that this Nation

is at war on multiple fronts. Not only are American troops

fighting in Afghanistan and Iraq, the War on Terrorism has

tragically reached our own soil. In this post-9/11 world, each

state’s National Guard is playing a critical role in this War.

This fact is important, because generally speaking, the

Posse Comitatus Act prohibits the use of “[a]ny part of the

[federal] Army or Air Force as a posse comitatus or otherwise

to execute the laws...” 18 U.S.C. § 1385 (emphasis added).

For this reason, with some limited exceptions, federal troops

cannot be used in certain types of domestic operations.

However, under the Posse Comitatus Act, it has long been

accepted that the Guard—because it is not a part of the

federal military—is not prohibited from engaging in domes-

tic operations. Recognizing that, since 9/11 thousands of

Guardsmen across the Nation have engaged in critical

counterterrorism and law enforcement operations, while in a

state status. For example, and as pointed out by Petitioners,

in the post-9/11 period, Guardsmen were detailed as security

at airports nationwide. Further, many states have used

Guardsmen to protect nuclear and other key infrastructure

facilities from terrorist attack. Importantly, these Guardsmen

have served these missions in a state status—as members of

‘

11

their respective states’ Guards—so as not to violate the Posse

Comitatus Act’s prohibition on certain domestic operations

by federal troops.

Here, the Fifth Circuit’s holding that a state National Guard

is a federal agency and part of the National Guard of the

United States, threatens to criminalize the use of the states’

Guards for these and certain other domestic operations. This

is because under 10 U.S.C. § 3062(c), the National Guard of

the United States is indisputably part of the Army.

Thus, if the Fifth Circuit’s finding that the states’ National

Guards are a subpart of National Guard of the United States

stands, some may well contend that use of state National

Guards for certain domestic counterterrorism and law en-

forcement operations is a felony. See Clark v. United States,

322 F.3d 1358, 1367 (Fed. Cir. 2003) (“To include a National

Guard member in a reserve component ...when he is in

service to the state National Guard would be to treat that

member as a federal employee, and not as a state serviceman.

and would be contrary to [Posse Comitatus]’”).

Such a result, especially with this Nation at war on our own

soil, would seriously damage national security. NGAUS

respectfully submits that avoidance of this result alone

justifies the grant of a writ of certiorari.

12

CONCLUSION

For the foregoing reasons, a writ of certiorari should issue

to review the judgment of the Fifth Circuit Court of Appeals.

Respectfully submitted,

ROBERT D. GHOLSON *

GHOLSON & ORR, PLLC

535 North Sth Avenue

Laurel, MS 39441-6523

(601) 425-0400

* Counsel of Record Counsel for Amicus Curiae

National Guard Association

of the United States