29 AC 29 AC- -1AC All Hands Conference 1AC All Hands Conference

Lt CoI Young and Capt Zevitz

Litigation and EmpIoyment Law
Update
29 AC 29 AC- -1AC All Hands Conference 1AC All Hands Conference
OVERVIEW
MEO-EEO Complaint Processing
Presidential use oI 10 USC 12302
Claims Processing
UCMJ Witness issues
Erosions oI the FERES Doctrine/ Gov
Contractor deIense
2
29 AC 29 AC- -1AC All Hands Conference 1AC All Hands Conference
istorical EO Issues
Title 32 Complaint Processing
Processing times: Up to 5 years
Standard: 180 days
Lack oI accountability
Non-responsive to the Iield
Title 5 AF Complaint Processing
Completely broken
No one assumed ownership oI the issue
3
29 AC 29 AC- -1AC All Hands Conference 1AC All Hands Conference
Where We Are Now
T-32: Backlog eliminated
Reduced average processing to 180 days
Established a complaint processing system
Reorganized NGB-EO to maximize eIIiciency
Personnel realignments
Title 5:
New ANGRC EO processing oIIice
Two new Lit Attorney positions in NGB-JA
4
29 AC 29 AC- -1AC All Hands Conference 1AC All Hands Conference
MEO/EEO Complaint Processing
MEO EEO
Traditional Guardsmen Title 5 civilian
AGRs (T-32 & T-10) NDS Techs
ybrid: DS Techs (MEO and EEO)
5
29 AC 29 AC- -1AC All Hands Conference 1AC All Hands Conference

Common ROI PitfaIIs
O Fails to Follow NGR 600-22, 3-6(d)
O Does Not Obtain Statements Under Oath
Recorded Statements are Not Transcribed
O Fails to Certify Transcripts
Transcripts are Not Verbatim
Witnesses Not Produced
29 AC 29 AC- -1AC All Hands Conference 1AC All Hands Conference

$eIf InfIicted MEO & EEO
Wounds
O & O Training Not Documented
Required Postings Not Visible
Delay akes a Good Case ndefensible
29 AC 29 AC- -1AC All Hands Conference 1AC All Hands Conference
8
MEO & EEO UPDATE$
O
NGB-O/CR Reorganization --
ary Odom-Chief of Complaints Processing
29 AC 29 AC- -1AC All Hands Conference 1AC All Hands Conference

TitIe 5 Processing
Complaint Processing Centralized to ANGRC
New ANG O anager:
s. Barbara Sullivan
ANG Title 5 Agency Representation
NGB-JA
29 AC 29 AC- -1AC All Hands Conference 1AC All Hands Conference
Do DS Techs have EEO Rights?
The United States Supreme Court has held
that soldiers could not bring a suit Ior
damages in civilian court alleging racial
discrimination by their superiors.
Coffman v. State of Michigan, 120 F.3d 57 (6th Cir. 1997) (citing
Chappell v. Wallace, 462 U.S. 296, 103 S. Ct. 2362, 76 L. Ed. 2d
586 (1983)).
10
29 AC 29 AC- -1AC All Hands Conference 1AC All Hands Conference

th
Circuit
DS Techs are 'irreducibly military in nature
Do not have Title-VII (EEO) rights
Must pursue MEO process
Fisher v. Peters (
th
Cir, 2001)
11
29 AC 29 AC- -1AC All Hands Conference 1AC All Hands Conference

th
Circuit
Because Guard technicians are in a hybrid job
entailing both civilian and military aspects, we
conclude that Title VII coverage oI civilians
employed by the military encompasses actions
brought by Guard technicians except when the
challenged conduct is integrally related to the
military's unique structure.
Mier v. Owens, 57 F.3d 747, 748 (9th Cir. 1995),
12
29 AC 29 AC- -1AC All Hands Conference 1AC All Hands Conference
5
th
Circuit
National Guard technician position is not
inherently military, and thus, a court may
need to determine whether a plaintiII seeks
review oI actions that are civilian or
military in nature.
rown v. United States, 227 F.3d 295 (5th Cir. 2000)
But.was an Air Reserve Tech case
13
29 AC 29 AC- -1AC All Hands Conference 1AC All Hands Conference
EEOC
'.it is necessary to review the Iacts in each
case to determine whether the alleged
discrimination took place in the context oI
the individual's capacity as a Iederal
civilian-employee or as a uniIormed
member oI the military unit in question.
Brazil v NGB (EEOC-OFO, 18)
14
29 AC 29 AC- -1AC All Hands Conference 1AC All Hands Conference
15
ADA Update
Americans With Disabilities Act Amendments
ffects Title 5 mployees and NDS Technicians.
ajor Change:
Mitigation does not take a cIaimant out of being a quaIified
disabIed person within the meaning of the Act
29 AC 29 AC- -1AC All Hands Conference 1AC All Hands Conference
1
MEO & EEO UPDATE$
ffectively more employees will be qualified
disabled persons under the ADA.
29 AC 29 AC- -1AC All Hands Conference 1AC All Hands Conference
Presidential Authority to Invoke
10 USC 12302
Liberty Tree: Active legislative proposals in
MD, NJ, NY, PA, VT, WI, ME, MN, N, and RI
President lacks authority to invoke 10 USC
12302 to activate and deploy ARNG
Congressional authorization Ior the use oI
military Iorce (AUMF):
Required
2004 AUMF expired
1
29 AC 29 AC- -1AC All Hands Conference 1AC All Hands Conference
Why the Movement?
Anti-War
Want NG available to respond to domestic
emergencies
29 AC 29 AC- -1AC All Hands Conference 1AC All Hands Conference
10 USC 12302
Ready Reserve
(a) In time oI national emergency declared by the
President aIter January 1, 153, or when otherwise
authorized by law, an authority designated by the
Secretary concerned may, without the consent oI
the persons concerned, order any unit, and any
member not assigned to a unit organized to serve
as a unit, in the Ready Reserve under the
jurisdiction oI that Secretary to active duty (other
than Ior training) Ior not more than 24
consecutive months.
1
29 AC 29 AC- -1AC All Hands Conference 1AC All Hands Conference
Presidential Authority to Invoke
10 USC 12302
Trigger: Presidential Declaration oI
'National Emergency
President has continued declaration oI national
emergency annually since Sept 01
AUMF not required
04 AUMF not expired
20
29 AC 29 AC- -1AC All Hands Conference 1AC All Hands Conference
Presidential Authority to Invoke
10 USC 12302
The plain reading oI 12302 does not
require the governor`s consent Ior
Presidential mobilization oI ANGUS-
ARNGUS Iorces
Compare this to 10 USC 12301(d)
But see !erpich v. DOD, 496 U.S. 334 (1990)
Federal Supremacy: state legislatures and
governors have neither the authority nor
standing to object
21
29 AC 29 AC- -1AC All Hands Conference 1AC All Hands Conference
CLAIMS PROCESSING
AFI 51-501, AR 2-20, NGR 2-20
Two Payment paradigms
PRIMARY:
Federal Tort Claims Act (FTCA) 28 USC 21
SECONDARY:
National Guard Claims Act (NGCA) 32 USC 15
22
29 AC 29 AC- -1AC All Hands Conference 1AC All Hands Conference
Why is FTCA Coverage
Important?
Post -11 Operational Title 32 under 502(I)
Airport Security
Winter Olympics
G-8
Katrina
OJS: Border Security
DNC & RNC
Inauguration
23
29 AC 29 AC- -1AC All Hands Conference 1AC All Hands Conference
FTCA
181: FTCA (21) amended to deIine
NG perIorming training or duty under 32
U.S.C. VV 115, 31, 502, 503, 504 or 505 as
'employees oI the government
Technicians are Federal Civilian Employees
pursuant to 32 U.S.C. V 0 (e).
24
29 AC 29 AC- -1AC All Hands Conference 1AC All Hands Conference
FTCA
WestIall CertiIication and Substitution
Federal employee ?
Within the course and scope oI employment
Under State Law
Settlements paid Irom DoJ Judgment Fund
NOT out oI O&M
25
29 AC 29 AC- -1AC All Hands Conference 1AC All Hands Conference
NGCA
Per 32 CFR 35.
Passed in 10 and mirrors the MCA,
NGCA coverage applies to:
FTNGD, IDT
technicians
owever, since the NGCA`s passage in
10,Congress has also extended (FTCA)
coverage to these personnel
2
29 AC 29 AC- -1AC All Hands Conference 1AC All Hands Conference
NGCA
Per 32 CFR 35. :
Claims arising Irom the negligent acts or omissions oI
NG members perIorming FTNGD or IDT, or oI
technicians, will be processed under the FTCA not the
NGCA
NGCA is generally relevant only to claims arising Irom
noncombat activities or outside the United States.
32 CFR 35.
2
29 AC 29 AC- -1AC All Hands Conference 1AC All Hands Conference
NON-COMBAT ACTIVITIES
Peculiarly military having little parallel in
civilian liIe
Situations in which the Iederal government
has historically assumed liability
AircraIt accidents
Artillery Iired oII range
Tank maneuvers
28
29 AC 29 AC- -1AC All Hands Conference 1AC All Hands Conference
Non-Combat Activity
0 NJ-ANG Range
Fire
29 AC 29 AC- -1AC All Hands Conference 1AC All Hands Conference
What Reg Applies?
NGR 2-20, ANGR 112-1
Applies to FTCA and NGCA issues
'Does not apply to claims arising Irom the
activities oI the NG in non-Iederally Iunded
state service (which are the responsibility oI the
several states)
State Claims OIIicer: Should be the Iull-time
Judge Advocate
29 AC 29 AC- -1AC All Hands Conference 1AC All Hands Conference
31
Incident Reporting
NGR 27-20, Para. 2-3
"$tate AGs wiII estabIish
procedures to ensure that
incidents which may resuIt
in cIaims against the
United $tates are promptIy
reported through the
$tate CIaims Officer to the
appropriate active
component cIaims authority."
29 AC 29 AC- -1AC All Hands Conference 1AC All Hands Conference
32
Incident Reporting
NGR 27-20, Para. 2-3
" Incident reports wiII incIude -
(1) The date, pIace and nature
of the incident.
(2) A description of any damage, Ioss,
or destruction of private property or any
personaI injury or death resuIting from
the incident.
(3) The names, addresses, teIephone
numbers, and miIitary organization
(if appIicabIe ) of -
(a) The NationaI Guard personneI invoIved.
(b) Any potentiaI cIaimants.
(c) Any witnesses to the incident.
(d) Any Iaw enforcement officers, civiIian or miIitary, who
investigated the incident."
29 AC 29 AC- -1AC All Hands Conference 1AC All Hands Conference
33
Receiving and Forwarding CIaims
NGR 27-20, Para. 2-4
"Upon receipt of a cIaim, the
$tate CIaims Officer wiII mark
the cIaim with the date of receipt
By authorized personneI of the
NationaI Guard, enter it in the
cIaims Iog according to paragraph
2-5, and forward it immediately
by first class mail to the appropriate
active component claims authority."
29 AC 29 AC- -1AC All Hands Conference 1AC All Hands Conference
34
Receiving and Forwarding CIaims
NGR 27-20, Para. 2-4
"The forwarding endorsement wiII
reference any reIated incident report
previousIy provide to the cIaims
authority."
29 AC 29 AC- -1AC All Hands Conference 1AC All Hands Conference
35
Investigating CIaims
NGR 27-20, Para. 2-6
"Investigation of cIaims against the
United $tates is primariIy the
responsibiIity of the active component
cIaims authority."
29 AC 29 AC- -1AC All Hands Conference 1AC All Hands Conference
3
CIaims Processing
NGR 27-40, Para. 2-6 Investigating
cIaims.
"However, to the extent permitted by
manpower and resources, $tate
Adjutants GeneraI wiII provide
support and assistance to the active
component cIaims authority in
investigating cIaims which resuIt
from the activities of the NationaI
Guard or which arise from the
incidents within their state invoIving
the NationaI Guard of other
jurisdictions (e.g., traffic accidents
whiIe in transit to training areas)."
29 AC 29 AC- -1AC All Hands Conference 1AC All Hands Conference
Increase EIIiciency
Provide copies oI all orders/ documentation
reIlecting status (IDT-CMD Cert, Orders)
Mere SF 5s w/ no allied papers or incident
reports will slow down the process
Cooperation with USARCS
Critical
29 AC 29 AC- -1AC All Hands Conference 1AC All Hands Conference
38
Witnesses for MiIitary TriaIs
OCONU$ & CONU$
Witnesses for OCONUS-CONUS
Courts-martials:
Title 10 orders
Usually COADOS orders
Coordinated with Army Operations
Center JAG
Requires packet completion by
requested state NG
Give sufficient time for processing
and travel arrangements
29 AC 29 AC- -1AC All Hands Conference 1AC All Hands Conference
3
Does Feres Doctrine !rotect
Contractors?
TNARNG members suing Boeing for AH-64 crash
LARNG Soldiers Suing KBR for posure to
Carcinogens in raq
Parents Sue KBR for Soldiers' lectrocution
29 AC 29 AC- -1AC All Hands Conference 1AC All Hands Conference
"uestions?
Stop Sign Picture
29 AC 29 AC- -1AC All Hands Conference 1AC All Hands Conference
41
"uestions?