Opinion
H049417
05-12-2023
CHARLES PARK, Plaintiff and Appellant, v. MATTHEW P. BEEVERS, as Adjutant General, etc., Defendant and Respondent.
NOT TO BE PUBLISHED
Monterey County Super. Ct. No. 18CV001888
BAMATTRE-MANOUKIAN, ACTING P.J.
I. INTRODUCTION
Plaintiff Charles Park was a dual status military technician in the California Army National Guard. (See 32 U.S.C. § 709(b)(1), (2).) The California Army National Guard is encompassed within the state Military Department, which is headed by defendant Matthew P. Beevers, who is California's acting adjutant general (Adjutant General). (Mil. & Vet. Code, §§ 50, 51, 52; DiRaffael v. California Army National Guard (2019) 35 Cal.App.5th 692, 702 (DiRaffael).) Plaintiff, as a dual status military technician, was both a federal civilian employee in the United States Department of the Army (10 U.S.C. § 10216(a)(1); see 32 U.S.C. § 709(b)(1) & (e)) and a military member of the National Guard (32 U.S.C. § 709(b)(2)). In this dual status technician position, plaintiff was "employ[ed] and administer[ed]" by the state Adjutant General. (32 U.S.C. § 709(d); see id. at § 709(f)(1)(A), (B).)
For nearly two years in 2014 and 2015, plaintiff was on leave from his dual status technician position in order to complete federal military service in the United States Army overseas. Upon his completion of federal military service, he resumed his dual status technician position with the United States Department of the Army and as a member of the California Army National Guard.
Following his return to the dual status technician position, plaintiff sought from the Military Department (1) "differential pay," (2) "Presidential leave," and (3) contributions to his retirement plan, all of which plaintiff claimed he was entitled to under federal law from his employer following completion of federal military service. After his requests were denied in whole or in part, he filed a civil action alleging two causes of action: (1) discrimination and retaliation under the Uniformed Services Employment and Reemployment Rights Act of 1994 (USERRA) (38 U.S.C. § 4301 et seq.) and (2) violation of Military and Veterans Code section 394, both of which generally prohibit discrimination in employment against members of the military.
Defendant Adjutant General moved for summary judgment or, in the alternative summary adjudication. Defendant contended, among other arguments, that to the extent he was an agent of the federal government in employing plaintiff as a federal civil servant, federal sovereign immunity applied and plaintiff's action must be dismissed. The trial court agreed, and judgment was entered in defendant's favor.
On appeal, plaintiff contends that the trial court erred in applying immunity to defendant, and that the judgment should be reversed. For reasons that we will explain, we will reverse the judgment and direct the trial court to vacate the order granting summary judgment and enter a new order denying summary adjudication as to each cause of action.
II. GENERAL LEGAL PRINCIPLES REGARDING THE NATIONAL GUARD AND DUAL STATUS TECHNICIANS
Before we set forth the specifics of plaintiff's employment and address his claims against defendant, we provide a brief overview of the National Guard and the nature of the dual status technician position.
" '[T]he National Guard consists of" 'two overlapping . . . organizations . . .' "- the federal, or United States National Guard, and the separate National Guards of the various individual states.' [Citation.]" (DiRaffael, supra, 35 Cal.App.5th at p. 702.)" '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. [Citation.] These state National Guard units are known as the Army National Guard. [Citation.] 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.' [Citation.]" (Stirling v. Brown (2018) 18 Cal.App.5th 1144, 1152 (Stirling).)
" 'The Governor and his or her appointee, the Adjutant General, command the National Guard in each state.' [Citation.] In California, the Adjutant General is the head of the Military Department, which includes, among other things, the California National Guard . . . . [Citation.] The California National Guard encompasses . . . the California Army National Guard . . . . [Citation.]" (DiRaffael, supra, 35 Cal.App.5th at pp. 701-702; see Mil. & Vet. Code, §§ 50, 51, 52.)
A National Guard "service member may serve in any one of three statuses: (1) state active duty status, (2) title 10 (active federal duty) status, or (3) title 32 . . . status." (Stirling, supra, 18 Cal.App.5th at p. 1152; see 32 U.S.C. § 709.) Relevant here, "[t]itle 32 status is a hybrid in that a National Guard member operates under state active duty and under state control but in the service of the federal government. While under title 32 status, the National Guard service member is on state active duty funded by the federal government, but authorized, organized, implemented and administered by the state. [Citation.]" (Stirling, supra, at p. 1153.)
"The National Guard Technicians Act of 1968 formally established dual-status technicians as they exist today. . . . ([C]odified in relevant part at 32 U.S.C. § 709). Prior to the [National Guard Technicians Act], Congress had authorized National Guard technicians, formerly called 'caretakers and clerks,' to provide support to the National Guard military organization. These technicians were state employees paid with federal funds, and most were members of the National Guard. Congress passed the [National Guard Technicians Act] with the purpose of converting technicians to federal employees in order to provide them with a uniform system of federal salaries and benefits, and to clarify their status as covered by the Federal Tort Claims Act. [Citation.] Congress also intended to 'recognize the military requirements and the State characteristics of the National Guard by providing for certain statutory administrative authority at the State level with respect to the technician program.' [Citation.]" (Dyer v. Dept. of the Air Force (Fed.Cir. 2020) 971 F.3d 1377, 1380 (Dyer).)
Dual status technicians "occupy a unique space between federal/state organizations and civilian/military status." (Dyer, supra, 971 F.3d at p. 1380.) A dual status technician is a "[f]ederal civilian employee" (10 U.S.C. § 10216(a)(1); see 32 U.S.C. § 709(b)(1)) of the United States "Department of the Army or the Department of the Air Force, as the case may be" (32 U.S.C. § 709(e)), who must be a military "member of the National Guard" among other requirements (32 U.S.C. § 709(b)(2); see Dyer, supra, at p. 1380). "Even though dual-status technicians are federal employees, authority over dual-status technicians, including all hiring and firing decisions, remains with the National Guard at the state level" (Dyer, supra, at p. 1380), and specifically with the state adjutant general. (See, e.g., 32 U.S.C. § 709(d) ["adjutant generals . . . employ and administer the technicians"] & (f)(1)(A), (B) [describing circumstances under which an adjutant general may or must "separate[]" a dual status technician from employment]).
III. FACTUAL AND PROCEDURAL BACKGROUND
A. Plaintiff's Employment
Relevant to this appeal, from approximately May 25, 2008, to September 3, 2016, plaintiff was a dual status technician, which was a federal civil service position, as an "Attorney-Advisor" with the United States Department of the Army. He was assigned to the California Army National Guard. This military service in the California Army National Guard was a condition of his employment as an Attorney-Advisor. The Adjutant General, the head of the Military Department, was plaintiff's federal civil service supervisor while plaintiff was assigned to the California Army National Guard as a dual status technician.
Although there are references in the record on appeal and in defendant's appellate brief to the position being an "Attorney-Adviser," the job announcement for the position and plaintiff's federal personnel records reflect the spelling of the position as "Attorney-Advisor."
Plaintiff volunteered for federal military service while employed as an Attorney-Advisor. Effective January 15, 2014, upon orders of the United States Army, plaintiff was deployed to South Korea as a member of the United States Army for one year. He received new orders for continued federal military service until September 15, 2015. For this military service, plaintiff was paid by the United States Department of Defense.
Plaintiff was not required to serve overseas in the United States Army as a condition of his Attorney-Advisor employment. During his federal military service in 2014 and 2015, plaintiff was on unpaid leave from his Attorney-Advisor position and "was no longer a member of the California Army National Guard." Upon his completion of federal military service, plaintiff resumed his position as an Attorney-Advisor employed by the United States Department of the Army and a member of the California Army National Guard.
In September 2016, plaintiff left the California Army National Guard and began working in the United States Department of the Air Force as an "Attorney-Adviser."
As we have set forth above, the Military Department is an agency of California, headed by the Adjutant General, and comprised of, among other entities, the California National Guard. (Mil. & Vet. Code, §§ 50, 51, 52; see 32 U.S.C. § 314.) The record reflects that employees of the Military Department include members of the California Army National Guard, members of the California Air National Guard, dual status military technicians, and civilian employees. Some of the civilian employees are state civil service employees and some are federal civil service employees.
Within the state Military Department is the "Human Resources Office" (Cal-HRO). Cal-HRO provides personnel administration for employees of the United States who are assigned to work within the California National Guard. A separate unit in the Military Department provides similar personnel administration for employees of California who are within the California National Guard.
As an Attorney-Advisor, plaintiff's salary and benefits were paid exclusively by federal funds, and he received his salary directly from the Defense Finance and Accounting Service (DFAS), which is an agency within the United States Department of Defense that is responsible for administering the federal civil service compensation and benefits of dual status technicians. DFAS managed plaintiff's tax and social security withholdings, retirement contributions, and leave balances. Retirement contributions were made to plaintiff's retirement account in the Federal Employees Retirement System.
Cal-HRO processes dual status technician salary, leave, insurance, retirement, and other benefits in conjunction with DFAS. In administering personnel matters related to dual status technicians, Cal-HRO staff generally rely on federal law, as well as guidelines or regulations issued by the United States Office of Personnel Management, the Department of Defense, and the federal National Guard Bureau.
Cal-HRO staff may consult with the DFAS for guidance or to take further action on a particular personnel matter. For example, Cal-HRO initially processes a federal employee's request for differential pay and, if the employee's federal military orders and supporting documentation, such as military pay records, show that the individual may be entitled to differential pay, Cal-HRO will forward the request and supporting documentation to DFAS for final processing and payment.
DFAS may reject or approve the request. DFAS makes the final decision regarding a federal employee's request for differential pay, and neither Cal-HRO nor the Adjutant General can override DFAS's decision. There was no evidence in this case that DFAS was involved in the denial of plaintiff's differential pay.
Cal-HRO staff also regularly consults with the National Guard Bureau for guidance or to take further action on a particular personnel matter. The National Guard Bureau is a component of the United States Department of Defense and is the liaison between the United States Army and the National Guard within each state. The National Guard Bureau is available to Cal-HRO to provide guidance regarding federal employee personnel matters, such as whether an individual's military orders qualify for differential pay. The National Guard Bureau administers the dual status military technician program throughout the country, as well as the employment of federal civil service employees assigned to the National Guard.
Relevant to this case, plaintiff requested "differential pay" under title 5 United States Code section 5538(a) for his Attorney-Advisor position, which is the excess of his Attorney-Advisor pay above his United States Army military pay during his 2014 and 2015 federal military service in South Korea, based on a method of calculating any such difference according to Office of Personnel Management guidelines. He also requested several days of "Presidential leave" from his Attorney-Advisor federal civil service position after his federal military service ended in 2015. Plaintiff further requested employer contributions to his retirement account in the Federal Employees Retirement System and his Thrift Savings Plan related to his Attorney-Advisor federal civil service employment for the period of his federal military service in South Korea, apparently pursuant to federal law and a California National Guard regulation allowing technicians who perform uniformed service to make up missed contributions and requiring agency contributions.
Title 5 United States Code section 5538(a) states: "(a) An employee who is absent from a position of employment with the Federal Government in order to perform active duty in the uniformed services pursuant to a call or order to active duty under section 12304b of title 10 or a provision of law referred to in section 101(a)(13)(B) of title 10 shall be entitled, while serving on active duty, to receive, for each pay period described in subsection (b), an amount equal to the amount by which- [¶] (1) the amount of basic pay which would otherwise have been payable to such employee for such pay period if such employee's civilian employment with the Government had not been interrupted by that service, exceeds (if at all) [¶] (2) the amount of pay and allowances which (as determined under subsection (d))- [¶] (A) is payable to such employee for that service; and [¶] (B) is allocable to such pay period."
In a November 14, 2003 memorandum to the heads of federal executive departments and agencies, President George W. Bush directed that federal employees returning from "active duty in the continuing Global War on Terrorism" be given five days of leave from their civilian duties.
The Cal-HRO director rejected plaintiff's request for differential pay based on Office of Personnel Management guidelines and after Cal-HRO consulted with the United States Army Human Resources Command (USAHRC), which was the issuing authority for plaintiff's federal military orders. USAHRC determined that plaintiff was not eligible for differential pay due to the nature of plaintiff's federal military orders.
The Cal-HRO director also denied plaintiff's request for Presidential leave after reviewing Office of Personnel Management guidelines and consulting with the National Guard Bureau. The Cal-HRO director believed that plaintiff was not eligible for the leave due to the nature of plaintiff's federal military orders.
DFAS, the federal agency, was responsible for managing plaintiff's federal retirement benefits and Thrift Savings Plan, including contributions by him and by his Attorney-Advisor employer for the period of his federal military service. By July 2016, Cal-HRO had submitted a "remedy ticket" to DFAS to resolve plaintiff's request for matching contributions to his federal retirement account and Thrift Savings Plan. By September 2016, DFAS responded to the remedy ticket by informing Cal-HRO that DFAS would make the contributions that month. According to the information available to Cal-HRO, the contributions were made by DFAS to plaintiff's federal retirement account and Thrift Savings Plan that month. By the time plaintiff filed his civil lawsuit, there were no outstanding contributions to plaintiff's federal retirement account or Thrift Savings Plan for the period of time he was on leave in South Korea. Plaintiff, however, was not allowed to make up any missed contributions to his Thrift Savings Plan.
B. Plaintiff's Civil Action and the Demurrers to His Complaint
In May 2018, plaintiff filed a civil action against the Military Department alleging that he was entitled to differential pay, Presidential leave, and contributions to his retirement plan. In his complaint, plaintiff alleged two causes of action: (1) discrimination and retaliation under USERRA (38 U.S.C. § 4301 et. seq.) and (2) violation of Military and Veterans Code section 394.
The Military Department filed a demurrer to each cause of action on the grounds that plaintiff failed to state facts sufficient to constitute a cause of action and each cause of action was uncertain. Among other arguments, the Military Department contended that plaintiff's USERRA cause of action was barred by state sovereign immunity under the Eleventh Amendment to the United States Constitution. The trial court overruled the general demurrer for failure to state sufficient facts and sustained the special demurrer for uncertainty. In sustaining the special demurrer, the court found the complaint uncertain regarding Presidential leave and retirement contributions.
Consistent with the trial court's overruling of the general demurrer, the United States Supreme Court has since held that a state may not invoke state sovereign immunity as a legal defense to a USERRA claim. (Torres v. Tex. Dept. of Pub. Safety (2022) ___ U.S. ___, ___ [142 S.Ct. 2455, 2460] (Torres).) The Supreme Court explained: "The Constitution vests in Congress the power '[t]o raise and support Armies' and '[t]o provide and maintain a Navy.' Art. I, §8, cls. 1, 12-13. Pursuant to that authority, Congress enacted a [USERRA, which] gives returning veterans the right to reclaim their prior jobs with state employers and authorizes suit if those employers refuse to accommodate them. [Citation.]" (Torres, supra, at p. 2460.) "Upon entering the Union, the States implicitly agreed that their sovereignty would yield to federal policy to build and keep a national military. States thus gave up their immunity from congressionally authorized suits pursuant to the' "plan of the Convention,"' as part of' "the structure of the original Constitution itself."' [Citations.]" (Ibid.)
In October 2018, plaintiff filed a first amended complaint against the Military Department again alleging violations of USERRA and Military and Veterans Code section 394. The Military Department demurred to each cause of action on the grounds that (1) the trial court lacked subject matter jurisdiction because the United States was the real party in interest and (2) plaintiff should be suing the federal government instead of a state agency or, alternatively, the United States was an indispensable party. The trial court, this time a different judge, overruled the demurrer in part. The court determined that when a "National Guard technician brings a USERRA action against [his or her] state's adjutant general, then the adjutant general is a state employer for the limited purpose of the Court determining jurisdiction." The court further determined that USERRA grants a state court subject matter jurisdiction when a person brings a USERRA action against the state. The court granted plaintiff leave to amend the complaint to name the Adjutant General as the defendant instead of the Military Department.
In March 2019, plaintiff filed the operative second amended complaint, naming the Adjutant General as the sole defendant. Plaintiff continued to allege two causes of action - (1) discrimination and retaliation under USERRA and (2) violation of Military and Veterans Code section 394 - based on allegations that he was entitled to differential pay, Presidential leave, and contributions to his retirement plan. The Adjutant General demurred to both causes of action on the grounds that the trial court lacked jurisdiction over claims against a federal agency and further, as to the USERRA claim, the Eleventh Amendment immunized state agencies from liability under USERRA to the extent the court determined that defendant was a state, rather than a federal, agency. The trial court, the same judge who had ruled on the demurrer to the original complaint, determined that California had waived sovereign immunity as to the Military Department, of which the Adjutant General was the head, and that the court had jurisdiction over plaintiff's claims regarding unpaid compensation.
C. Defendant Adjutant General's Motion for Summary Judgment/Adjudication
Defendant Adjutant General moved for summary judgment or, in the alternative, summary adjudication of each cause of action. Defendant argued that if he "operated as the State of California in employing [plaintiff] as a federal civil servant," then plaintiff was not entitled to differential pay, Presidential leave, or retirement contributions, "because those benefits are only available to employees of the United States and not to employees of the State of California." Alternatively, defendant contended that if he "operated as the United States, as a 'federal agency,' in employing [plaintiff] as a federal civil servant, the Court must dismiss this action." In this regard, defendant argued that "USERRA claims against federal agencies can only be asserted before the federal Merit Systems Protection Board and, in any event, federal sovereign immunity prevents this Court from adjudicating [plaintiff's] claims against the United States." Defendant also argued that plaintiff could have brought suit in the United States Court of Federal Claims under the Tucker Act (see 28 U.S.C. § 1491(a)(1)). Defendant further contended that plaintiff could not show a violation of USERRA or Military and Veterans Code section 394 because plaintiff lacked the qualifying military service for differential pay or Presidential leave, and he received the requisite retirement contributions.
D. Plaintiff's Opposition
In opposition, plaintiff contended that he was both a state and federal employee as a dual status technician. He further argued that California had waived sovereign immunity and that state court was the proper forum for his claims. Plaintiff also contended that he had performed qualifying military duty and that he was therefore entitled to all the employment benefits that he sought. Plaintiff's evidence in opposition to the motion included a declaration in which he stated that he "was not allowed to make up any missed contributions to [his] Thrift Savings Plan."
E. The Adjutant General's Reply
In reply, the Adjutant General contended that the federal regulations relied on by plaintiff to establish state court jurisdiction over USERRA claims were superseded by a 2016 amendment to the federal statute governing technician employment. The Adjutant General also argued that a state could not be required to pay the federal salary and benefits that plaintiff sought in this case. The Adjutant General objected to plaintiff's statement in his declaration that he was not allowed to make up missed retirement contributions, contending that the statement lacked foundation and was irrelevant.
F. The Trial Court's Order
At the conclusion of a January 29, 2021 hearing on the motion, and after argument from the parties, the trial court, who had ruled on the second round of demurrers by defendant, granted the motion for summary judgment. The court explained that plaintiff's discrimination claim was based on his failure to receive federal government benefits that were due to him solely because of his federal employee status. The court determined that neither USERRA nor Military and Veterans Code section 394 provided a remedy to plaintiff in state court, and that plaintiff's choice of forum was either with the Merit Service Protection Board or the United States Court of Federal Claims under the Tucker Act. The court declined to rule on the Adjutant General's evidentiary objections to plaintiff's declaration as the declaration was not relevant to the court's ruling on the summary judgment motion. The court requested that the Adjutant General submit a proposed order consistent with the court's oral ruling on the motion.
On February 9, 2021, the Adjutant General submitted a proposed order after the parties had met and conferred about the order. Plaintiff did not object to the proposed order.
On May 28, 2021, the trial court signed the proposed order, and the order was filed on June 1, 2021. Consistent with its oral ruling, the court stated in its written order that plaintiff was a federal civil service employee of the United States who sought benefits arising from his federal employment "and not from any state capacity." The court further stated: "Moreover, the [Adjutant General] acted as a 'federal agency' on behalf of the United States in his administration of [plaintiff's] employment as a technician. Thus, [plaintiff's] claims here are against the United States and not the State of California. Under USERRA and based on federal sovereign immunity, this Court lacks jurisdiction to adjudicate [plaintiff's] USERRA and California Military & Veterans Code section 394 claims. As a federal employee, [plaintiff] instead can request the relief he seeks from the federal Merit Systems Protection Board or the United States Court of Federal Claims under the Tucker Act." Judgment was subsequently entered in favor of the Adjutant General.
The June 1, 2021 order granting summary judgment is not contained in the record on appeal. On our own motion, we augment the record to include the order.
IV. DISCUSSION
A. Plaintiff's Requests for Judicial Notice
Plaintiff has filed requests for judicial notice of: (1) a decision by the United States Merit Systems Protection Board, McQueen v. Dept. of the Air Force (M.S.P.B. Nov. 24, 2020, Docket No. AT-4324-20-0779-I-1) 2020 MSPB LEXIS 4675 (McQueen), and (2) an unpublished opinion from the Federal Circuit Court of Appeals, Stoglin v. Merit Systems Protection Bd. (Fed.Cir. 2016) 640 Fed.Appx. 864 (Stoglin). Defendant did not oppose the requests for judicial notice, and we grant them. (Evid. Code, §§ 452, 453.)
Rule 32.1 of the Federal Rules of Appellate Procedure (28 U.S.C.) provides that "[a] court may not prohibit or restrict the citation of federal judicial opinions, orders, judgments, or other written dispositions that have been: [¶] (i) designated as 'unpublished,' 'not for publication,' 'non-precedential,' 'not precedent,' or the like; and [¶] (ii) issued on or after January 1, 2007."
B. The Standard of Review
A party may move for summary judgment of an entire action or, in the alternative, summary adjudication of a cause of action. (Code Civ. Proc., § 437c, subds. (a)(1) & (f)(1), (2).) Both motions are "subject to the same rules and procedures." (Lunardi v. Great-West Life Assurance Co. (1995) 37 Cal.App.4th 807, 819; see Code Civ. Proc., § 437c, subd. (f)(2).)
A defendant may move for summary judgment on the ground that a cause of action lacks merit because an element of the cause of action cannot be established or there is a complete defense to that cause of action. (Code Civ. Proc., § 437c, subds. (f)(1), (o) & (p)(2).) The moving party "bears an initial burden of production to make a prima facie showing of the nonexistence of any triable issue of material fact; if [the movant] carries [this] burden of production," the burden of production shifts to the opposing party "to make a prima facie showing of the existence of a triable issue of material fact." (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850 (Aguilar); see Code Civ. Proc., § 437c, subd. (p)(2).)
In determining whether the parties have met their respective burdens, "the court must 'consider all of the evidence' and 'all' of the 'inferences' reasonably drawn therefrom [citation], and must view such evidence [citations] and such inferences [citations], in the light most favorable to the opposing party." (Aguilar, supra, 25 Cal.4th at p. 843.) "There is a triable issue of material fact if, and only if, the evidence would allow a reasonable trier of fact to find the underlying fact in favor of the party opposing the motion in accordance with the applicable standard of proof." (Id. at p. 850, fn. omitted.)
"In reviewing a trial court's grant of summary judgment, . . .' "[w]e take the facts from the record that was before the trial court when it ruled on that motion"' and '"' "review the trial court's decision de novo . . . ." '" '" (Hughes v. Pair (2009) 46 Cal.4th 1035, 1039.) The trial court's stated reasons are not binding on the reviewing court, "which reviews the trial court's ruling, not its rationale. [Citation.]" (Ramalingam v. Thompson (2007) 151 Cal.App.4th 491, 498.)
C. USERRA and Military and Veterans Code Section 394
USERRA generally prohibits discrimination in employment based on a person's military service. Congress's intent in enacting USERRA included: (1) "encourag[ing] noncareer service in the uniformed services by eliminating or minimizing the disadvantages to civilian careers and employment which can result from such service" and (2) "prohibit[ing] discrimination against persons because of their service in the uniformed services." (38 U.S.C. § 4301(a)(1), (3).)
Among other rights, USERRA provides that a "person who is a member of [or] . . . has performed . . . service in a uniformed service shall not be denied . . . any benefit of employment by an employer on the basis of that membership [or] . . . performance of service . . . ." (38 U.S.C. § 4311(a).) An employer violates this provision "if the person's membership, . . . service, . . . or obligation for service in the uniformed services is a motivating factor in the employer's action, unless the employer can prove that the action would have been taken in the absence of such membership, . . . service, . . . or obligation for service." (38 U.S.C. § 4311(c)(1).)
USERRA also provides that when a person is reemployed, the "employer must determine the seniority rights, status, and rate of pay as though the employee had been continuously employed during the period of service." (20 C.F.R. § 1002.193(a); see 38 U.S.C. § 4316(a).) USERRA further provides for certain rights regarding pension benefits and benefits under the Thrift Savings Plan. (38 U.S.C. § 4318.) Relief under USERRA may include lost wages or benefits, plus liquidated damages in an equal amount. (38 U.S.C. § 4323(d))(1)(B), (C).)
Military and Veterans Code section 394 provides that a "person shall not discriminate against a member of the military . . . of the state or of the United States because of that membership. A member of the military forces shall not be prejudiced or injured by a person[ or] employer . . . with respect to that member's employment, position or status . . . by virtue of membership or service in the military forces of this state or of the United States."
D. Analysis
Defendant Adjutant General's motion for summary judgment/adjudication was based on the contention that plaintiff could not properly pursue his two causes of action for violations of USERRA and Military and Veterans Code section 394 in state court. The trial court agreed, determining that plaintiff was suing defendant in the capacity of a federal agency, that plaintiff could not pursue his claims against defendant in state court, and that plaintiff's choice of forum was either the Merit Service Protection Board or the United States Court of Federal Claims.
We determine that defendant did not establish as a matter of law that plaintiff was precluded from seeking relief for his claims against defendant in state court. (See Code Civ. Proc., § 437c, subd. (c).) The forum having jurisdiction over a USERRA claim depends on the type of employer. (See 38 USCS §§ 4323(b) [claims against a state may be brought in state court], 4324(b) & (c)(1), (2) [claims against a federal executive agency or the Office of Personnel Management are adjudicated by the Merit Systems Protection Board].) USERRA expressly states that, "[i]n the case of a National Guard technician employed under section 709 of title 32 [of the United States Code], the term 'employer' means the adjutant general of the State in which the technician is employed." (38 U.S.C. § 4303(4)(B); see also 20 C.F.R. § 1002.5(d)(2) [same].) As explained in a United States Department of Labor regulation implementing USERRA, "[a] National Guard civilian technician is considered a State employee for USERRA purposes, although he or she is considered a Federal employee for most other purposes." (20 C.F.R. § 1002.306.) Consequently, "an action brought against a State Adjutant General, as an employer of a civilian National Guard technician, is considered an action against a State for purposes of determining which court has jurisdiction." (20 C.F.R. § 1002.305(d).) Under USERRA, "[i]n the case of an action against a State (as an employer) by a person, the action may be brought in a State court of competent jurisdiction in accordance with the laws of the State." (38 U.S.C. § 4323(b)(2).) In this case, as plaintiff was "a National Guard technician employed under section 709 of title 32 [of the United States Code]," his" 'employer' [was] the [A]djutant [G]eneral" of California (38 U.S.C. § 4303(4)(B); see also 20 C.F.R. § 1002.5(d)(2)), his action against the Adjutant General "is considered an action against a State for purposes of determining which court has jurisdiction" (20 C.F.R. § 1002.305(d)), and the action may properly be brought in a California court (38 U.S.C. § 4323(b)(2)).
Consistent with our conclusion, the Federal Circuit Court of Appeals has held that National Guard technicians must pursue USERRA claims in state court, not with the Merit Systems Protection Board or in the United States Court of Federal Claims under the Tucker Act. For example, in Stoglin, supra, 640 Fed.Appx. 864, the Federal Circuit Court of Appeals affirmed a decision by the Merit Systems Protection Board dismissing a petitioner's USERRA claims against the United States Department of the Air Force for lack of subject matter jurisdiction. (Stoglin, supra, at pp. 865, 868.) The petitioner had applied for, but was denied, a non-dual status position with the Hawaii Air National Guard that "was announced 'under the authority set forth in 32 U.S.C. § 709.' " (Id. at pp. 865, 867.) The court of appeals explained that based on USERRA, and in view of the position that the petitioner had applied for, his" 'employer' was the State Adjutant General of Hawaii." (Stoglin, supra, at p. 867.) Further, "[b]ecause [the petitioner's] claim is against the State Adjutant General of Hawaii, as the employer of civilian National Guard technicians, he must seek resolution of his claim in Hawaii state court." (Id. at p. 868.)
Title 32 United States Code section 709 provides for dual and non-dual status technicians. (See id., § 709(b)(1) & (c)(1).) A non-dual status technician, similar to a dual status technician, is a federal civilian employee who is employed and administered by the state adjutant general. (See id., § 709(c)(1) & (d); 10 U.S.C. § 10217(a).)
A similar conclusion was reached in McGhee v. United States (Fed.Cir. Apr. 6, 2022, No. 2022-1082) 2022 U.S. App. LEXIS 9188 (McGhee). In McGhee, the plaintiff, a dual status military technician in the Missouri Army National Guard, sought pay and other relief, including compensation for discrimination under USERRA. (McGhee, supra, at pp. *1-2.) The United States Court of Federal Claims dismissed plaintiff's complaint against the United States for lack of subject matter jurisdiction. (Id. at p. *2.) In affirming the dismissal, the Federal Circuit Court of Appeals explained that "[t]he Tucker Act defines the Court of Federal Claims' jurisdiction and 'gives the court authority to render judgment on certain monetary claims against the United States.' [Citations.] The Tucker Act, however, 'does not create a substantive cause of action.' [Citation.] Instead, 'a plaintiff must identify a separate source of substantive law that creates the right to money damages.' [Citation.] '[T]he absence of a money-mandating source [is] fatal to the court's jurisdiction under the Tucker Act.' [Citation.]" (Id. at pp. *2-3.) Relevant here, the Federal Circuit Court of Appeals determined that plaintiff's USERRA claim could not support jurisdiction under the Tucker Act because jurisdiction for the plaintiff's USERRA claim itself "lies beyond the Court of Federal Claims." (McGhee, supra, at p. *4.) The court of appeals explained that plaintiff, "as a dual-status technician with [the Missouri Army National Guard] pursuant to 32 U.S.C. § 709, is considered a State employee for USERRA purposes. [Citations.] As such, jurisdiction over [plaintiff's] USERRA claim lies with any 'State court of competent jurisdiction in accordance with the laws of the State,' [citation], i.e., Missouri state court." (Ibid.; see also McQueen, supra, 2020 MSPB LEXIS 4675, at pp. *1-3 [Merit Systems Protection Board holding that it did not have jurisdiction over USERRA claim by Mississippi Air National Guard dual status technician, who claimed he was denied employment benefits under 5 U.S.C. § 5538(a), as he was a state employee, not a federal employee, for USERRA purposes]; Macmillan v. Pa. Air Nat'l Guard (W.D.Pa. June 7, 2018, Civ. A. No. 18-576) 2018 U.S. Dist. Lexis 95785, *1-3 [state national guard technician's USERRA claim against state adjutant general for adverse employment actions must be brought in state court, not federal court].)
We are not persuaded by defendant Adjutant General's arguments to the contrary that plaintiff may not pursue his claims in state court.
First, as an initial matter, we understand defendant to argue that (1) the relevant time period in this case is 2014 and 2015, when plaintiff was in active federal military service overseas, and (2) he was only a federal employee during this time period. Defendant's reference to this time period as being the relevant period is only partially correct. Although plaintiff's active federal military service in 2014 and 2015 allegedly made him eligible for the employment benefits that he now seeks, the pertinent question in this case is who was plaintiff's employer upon his return to work after this active federal military service. As defendant's statement of undisputed facts in support of the summary judgement frames the issues, plaintiff "requested 'differential pay' . . . for his Attorney-Adviser position," which he returned to upon his completion of active federal military service. (Italics added.) He also "requested 'Presidential leave' from his Attorney-Adviser federal civil-service position . . . after his federal military service ended in 2015." (Italics added.) Plaintiff "further requested employer federal retirement contributions to his [Federal Employees Retirement System] account and those for his Thrift Savings Plan related to his Attorney-Adviser federal civil-service employment for the period of his federal military service in South Korea." In other words, the factual and legal questions at issue below and on appeal arise from plaintiff's return to work in his Attorney-Advisor position after his active federal military service.
Second, the Adjutant General observes that in other contexts outside of USERRA, federal courts have determined that an adjutant general may act in the capacity of a federal agency in relation to dual status technicians. (See, e.g., Gilliam v. Miller (9th Cir. 1992) 973 F.2d 760, 762 [in case arising under the federal Administrative Procedures Act, court of appeals observed that although adjutant general's "personnel actions as supervisor over the federal technicians are taken in the capacity of a federal agency," not all adjutant general "actions in supervising members of the state National Guard are taken in the capacity of a federal agency"]; Costner v. Oklahoma Army Nat. Guard (10th Cir. 1987) 833 F.2d 905, 906-907 [holding that state adjutant general is an agency of the United States for purposes of determining timeliness of appeal under federal appellate rules]; NeSmith v. Fulton (5th Cir. 1980) 615 F.2d 196, 199 [same]; Chaudoin v. Atkinson (3d Cir. 1974) 494 F.2d 1323, 1329 [determining that the state adjutant general was "an agency or an agent of the United States" for purposes of 28 U.S.C. § 1361, which gives federal district courts jurisdiction over an action to compel "an officer or employee of the United States or any agency thereof to perform a duty owed to the plaintiff"]; Diraffael v. California Army Nat. Guard (C.D.Cal. Apr. 21, 2015, No. CV 13-07706 DDP (VBKx)) 2015 U.S. Dist. LEXIS 52415, at pp. *8-10, *12 [in addressing whether the action was properly removed to federal court under 28 U.S.C. § 1442a, which requires, among other things, that the defendant be a "member of the armed forces of the United States" and that the claim against the defendant be made "on account of an act done under color of his office or status," the court observed that an adjutant general "performs duties prescribed by both federal and California Law," and that in this particular case, the adjutant general had "acted under his federal authority when he approved the selection of Plaintiff for non-retention"]; Lipscomb v. FLRA (5th Cir. 2003) 333 F.3d 611, 618 [in a case arising under the Federal Service Labor-Management Relations Act, which applies to employees of an" 'Executive agency,'" court of appeals determined that "the hybrid character of the [state adjutant general] includes a federal component, which in his capacity as employer of the technicians renders him an 'Executive agency' "]; Ohio Adjutant General's Dept. v. Fed. Labor Rels. Auth. (6th Cir. 2021) 21 F.4th 401, 408 [same], cert. granted Oct. 3, 2022, ___ U.S. ___ .)
From this caselaw arising outside the context of USERRA that an adjutant general may act in the capacity of a federal agency in relation to dual status technicians, we understand defendant Adjutant General to contend that in denying plaintiff differential pay, Presidential leave, and retirement contributions, defendant acted as a "federal official[]" and is therefore "immune from suit in state courts for actions taken in [his] official capacity[y]." Although it is clear that "[t]he United States, as sovereign, is immune from suit" except to the extent it consents (United States v. Sherwood (1941) 312 U.S. 584, 586; accord, United States v. Mitchell (1983) 463 U.S. 206, 212), defendant does not provide legal authority conclusively establishing that such federal sovereign immunity may be asserted by him, a state official purportedly acting as an agent for the federal government in administering dual status technicians. The cases relied on by defendant only involve federal officials or federal employees. (See, e.g., Beeman v. Olson (9th Cir. 1987) 828 F.2d 620, 621 [explaining in an action against "federal officers in their official capacities" that "United States officials, while acting in their official capacities, enjoy sovereign immunity, and a state court may not entertain an action against them unless their immunity has been waived"]; Larson v. Domestic & Foreign Commerce Corp. (1949) 337 U.S. 682, 684, 703, fn. omitted [holding that an action against "the then head of the War Assets Administration," who "was an officer of the Government," was "inescapably the action of the United States and the effort to enjoin it must fail as an effort to enjoin the United States," which is barred by federal sovereign immunity]; Aminoil U.S.A., Inc. v. California State Water Resources Control Bd. (9th Cir. 1982) 674 F.2d 1227, 1233 [expressing doubt that the administrator of a federal agency may be joined as a party as "[i]t is settled that the United States, and its officers while acting in their official capacities, enjoy sovereign immunity"].) None of these cases cited by defendant indicates that a state official may properly assert federal sovereign immunity, let alone indicates that such a defense may properly be raised against a USERRA claim asserted by a dual status technician.
Third, we understand defendant Adjutant General to contend that plaintiff may bring his USERRA and state law claims before the Merit Systems Protection Board or in the United States Court of Federal Claims under the Tucker Act. Defendant specifically argues that "Congress amended 32 U.S.C. § 709 in 2016 to permit technicians to bring claims before the [Merit Systems Protection Board] like other federal employees." He contends that "in July 2020, the National Guard Bureau revised its directives to require that technicians be notified of their right to appeal workplace grievances to the [Merit Systems Protection Board] in conformance with the 2016 amendment to § 709."
Defendant does not provide persuasive legal authority to support the contention that plaintiff's particular pay and benefits claims may be raised before the Merit Systems Protection Board, nor does defendant cite any case indicating that the Merit Systems Protection Board has in fact begun to hear such claims as a result of the 2016 amendment. Regarding the amendment referred to by defendant, "[i]n December 2016, Congress passed the 2017 National Defense Authorization Act to 'clarify' that dual-status technicians, 'under certain conditions, may appeal adverse employment actions to the Merit Systems Protection Board . . . .' [Citation.]" (Dyer, supra, 971 F.3d at p. 1381.) In particular, the "[National Defense Authorization Act] amended portions of the [National Guard Technicians Act] . . . . [Citations.]" (Ibid.) The amended portion, as relevant to defendant's argument here, in paragraph (4) of section 709(f) of title 32 of the United States Code provides that a dual status technician cannot appeal beyond the adjutant general for certain personal actions, such as a reduction in force, when the appeal relates to activity occurring while the technician is in military pay status or concerns fitness for duty in the reserve components. Paragraph (5) provides that, "with respect to an appeal concerning any activity not covered by paragraph (4), the provisions of sections 7511, 7512, and 7513 of title 5 . . . shall apply." (Id., § 709(f)(5).) In turn, section 7512 of title 5 of the United States Code indicates that the covered personnel actions that may be appealed beyond the adjutant general are "a removal," "a suspension for more than 14 days," "a reduction in grade," "a reduction in pay," and "a furlough of 30 days or less." (Id., § 7512(1)-(5).) It is not apparent from these provisions that a dual status technician may appeal, as relevant here, the issues of differential pay, Presidential leave, and/or retirement contributions to the Merit Systems Protection Board.
Title 5 United States Code sections 7511, 7512, and 7513 are part of the Civil Service Reform Act, which "provides a framework to evaluate adverse personnel actions taken by a federal executive agency against civilian government employees. [Citations.] Specifically, Section 7512 governs certain types of adverse personnel actions involving federal civilian government employees, including reduction in pay. [Citations.] An employee against whom such an adverse personnel action has been taken is entitled to appeal that adverse action to the [Merit Systems Protection Board]. [Citations.]" (Downey v. United States (2020) 147 Fed.Cl. 171, 176.)
A written 2020 National Guard Bureau instruction, relied on by defendant, likewise indicates that appeals to the Merit Systems Protection Board are authorized "only in limited circumstances" that do not appear to apply to plaintiff's claims. The instruction indicates that an employee should be informed of the right to appeal to the Merit Systems Protection Board as to certain adverse actions involving removal, suspension for more than 14 days, reduction in grade, or reduction in pay. In contrast, "[e]xamples of [a]ctions [n]ot [c]overed in [t]his [i]nstruction" include "[t]ermination or reduction of entitlements that affect employee pay but do not involve any loss of base pay (for example, night differential, environmental pay, hazard pay)."
Moreover, as we have explained above, subsequent to the amendment to section 709 of title 32 of the United States Code relied on by defendant, the Merit Systems Protection Board and the United States Court of Federal Claims have rejected attempts by dual status technicians to seek relief with the Merit Systems Protection Board or in federal court for pay and other employment related claims under USERRA. (See McQueen, supra, 2020 MSPB LEXIS 4675, at pp. *1-3 [Merit Systems Protection Board holding that it did not have jurisdiction over USERRA claim by Mississippi Air National Guard dual status technician, who claimed he was denied employment benefits under 5 U.S.C. § 5538(a), as he was a state employee, not a federal employee, for USERRA purposes]; McGhee, supra, 2022 U.S. App. LEXIS 9188, at pp. *1-2, 4 [United States Court of Federal Claims holding that Missouri Army National Guard dual status technician seeking pay and other relief, including compensation for discrimination under USERRA, had to pursue the claims in state court, not in federal court under the Tucker Act].)
Fourth, defendant relies on title 38 United States Code section 4314, which is part of USERRA, in support of his contention that state adjutant generals are federal executive agencies for purposes of USERRA claims by dual status technicians. Section 4314(d) provides that "[i]f the adjutant general of a State determines that it is impossible or unreasonable to reemploy a person who was a National Guard technician employed under section 709 of title 32, such person shall, upon application to the Director of the Office of Personnel Management, be ensured an offer of employment in an alternative position in a Federal executive agency on the basis described in subsection (b)." (38 U.S.C. § 4314(d).) In turn, section 4314(b) sets forth the obligations of the Director of the Office of Personnel Management to offer a person a position in another federal agency if, for example, the federal agency where the person previously worked no longer exists. (38 U.S.C. § 4314(b).) We are not persuaded that these provisions establish that an adjutant general is a federal executive agency, as opposed to simply reflecting the dual nature of the technician's employment as a federal civil servant who is employed and administered by a state adjutant general. (See 32 U.S.C. § 709(b)(1), (d) & (e); 10 U.S.C. § 10216(a).)
Fifth, we observe that defendant makes broad statements in his brief in this court suggesting that he had no substantive role in the pay and benefits decisions at issue in this case. For example, defendant asserts that the compensation plaintiff sought "must be approved by federal officials," Cal-HRO "processed" plaintiff's differential pay request "solely to assist the federal government," and Cal-HRO "acted solely as an intermediary between [plaintiff] and the federal government" regarding plaintiff's request for Presidential leave. However, defendant's own statement of undisputed facts in support of the motion for summary judgment reflects that Cal-HRO itself engaged in substantive decision-making, albeit with some input from federal personnel, regarding whether plaintiff should receive differential pay and Presidential leave. For example, Cal-HRO generally decides whether to forward a request for differential pay to DFAS for payment based on the documentation Cal-HRO receives from the employee. In this case, Cal-HRO "rejected [plaintiff's] request." Cal-HRO also "decides whether to provide a technician with Presidential leave," and in this case it "denied [plaintiff's] request." At the same time, Cal-HRO's intervention and submission of a "remedy ticket" prompted DFAS to make contributions to plaintiff's retirement account. Undisputed facts thus indicate that Cal-HRO had more than a passive role in the denial of the pay and benefits at issue.
Finally, turning to the substance of plaintiff's claims for differential pay, Presidential leave, and retirement contributions, we determine that at least one triable issue of material fact exists regarding whether plaintiff was improperly denied one or more of those benefits due to his active federal military service. For example, according to his second amended complaint, plaintiff allegedly requested that he be allowed to make up his retirement contributions following his return to work from active duty orders. Defendant's own evidence in support of the summary judgment motion included: (1) a California National Guard "Full-time Personnel Regulation" that stated that "[t]echnicians who perform uniformed service may make up any contributions they missed due to such service to the Thrift Savings Plan," and (2) a "fact sheet" stating that "employees may make up employee contributions to their civilian TSP [(Thrift Savings Plan)] accounts that they missed as a result of performing military service." Defendant also included in support of the summary motion an e-mail by plaintiff in which he requested the following: "To make up missed TSP contributions. I request to contribute to my TSP account." Although defendant's evidence indicated that employer contributions were made to plaintiff's account, plaintiff submitted a declaration in opposition to the summary judgment motion stating that he "was not allowed to make up any missed contributions to [his] Thrift Savings Plan." Defendant filed written objections to this statement on the grounds of lack of foundation and lack of relevance. At the summary judgment hearing, the trial court declined to rule on the Adjutant General's evidentiary objections because plaintiff's declaration was not relevant to the court's ruling on the summary judgment motion. In this court, defendant does not provide any argument in support of the objections. We do not find these objections well-taken, as plaintiff would have personal knowledge regarding whether he made up missed contributions and the issue is relevant to whether a triable issue of material fact exists.
In sum, we determine that defendant failed to establish as a matter of law that federal sovereign immunity bars plaintiff's causes of action, and we further determine that a triable issue of material fact exists regarding both of plaintiff's causes of action for violation of USERRA and Military and Veterans Code section 394. As a result, defendant's motion for summary judgment and alternative motion for summary adjudication should have been denied.
V. DISPOSITION
The judgment is reversed, and the matter is remanded with directions to vacate the order granting summary judgment. The trial court is directed to enter a new order denying summary adjudication as to each cause of action and to conduct further proceedings following entry of the new order.
WE CONCUR: DANNER, J., WILSON, J.