interpretation that the federal government ministers and enforces amma cases here with us in the form of the justice department civil rights division so what i'd like to do if it's alright with the court is to briefly place the issue in context and then turn over the balance of my time to the justice department will then walk through the statutory to determine what the trial judge should have done in terms of reaching the conclusion that subject matter jurist and did apply under userra for purposes of full time national guard and then reserve officer in the illinois national guard in two thousand and sixteen received orders under title thirty two of the united states code section five hundred and two half ordering him to full time national guard duty if for purposes of a counter narcotics task force within the state of illinois while he was on that duty he received word from the city of joliet his municipal employer that he would have to take unpaid leave which that caused a problem if you will upon his return to the police department after he completed his full time national guard duty he brought suit in the northern district of illinois the lord that issue was focused upon you sarah you sirrah being the acronym for the uniform services employment agreement climate rights act arising under title thirty two dollars section four th sec basically the gist of the statute is it prohibits discrimination employment based upon any sort of anti military man animists and or military state ultimately the lower court dismissed the case finding that usera did not provide the federal court with subject matter jurisdiction and it sounds such so weird to me i mean it what the courts really saying whatever it may have said is that there is no claim under userra and certainly federal subject matter jurisdiction here yes  said the appeal was dismissed whether it was failure state a claim and or the court didn't have subject matter jurisdiction the issue on appeal is whether or not you sirrah by its plain language applies to those guardsman called to active duty under title thirty two section five hundred and two f to perform full time national guard duty in acts lawful capacity so with youths as you know twenty three states attorney general have joined the state of illinois as well as the justice department as amicus and noting that you sarah does apply to full time national guard duty under title thirty two in the lower court air his orders are federal orders they are paid by the federal government the orders refer to title full time national guard duty full time national guard duty is interned defined as national guard training or duty under several sections of title thirty two dollars which governs the national guard for which the service member is entitled to federal pay mueller meets these definitions he was a member of the national guard who served under one of the enumerated sections of title thirty two section five hundred and two f and he receives federal therefore he is entitled to use terrorist protections and the court need not go further to resolve this case the district court however seems to have been confused by the hybrid federal and state meter of title thirty two status national guard members may be called in generally federal duty or federal service in the army under title ten or they may be called into purely state service under state active duty or sad if you will title thirty's to service however has both federal and state aspects it is under federal statutory authority and funding but state day to day command understanding the hybrid federal and state nature of title thirty two dollars service which is what plaintiff miller was in helps to explain why you sara's protections apply in this case now what seems to have led the district court astray was it in the st instance was its analysis of a department of labor regulation to determine use there is applicability and in this analysis it aired in three ways the st was in considering the regulation at all because you sarah speaks precisely to the issue at hand and answers the only question we have in this case so you're referring to the part of title thirty two dollars that says that national guard full time national guard duty can include state drug interdiction that all has to be under the authorization i mean well the title thirty two dollars service anyway does not have to be under the authorization secretary of defense and so on so the title thirty i just pursuant to a plan submitted by the governor of the state to the department of defense for approval so there is federal approval for the plan so in other words it's not just the governor of the state taking it into his or her head to do something it's knitted into federal authority that's absolutely correct so the orders here say that they are under title thirty two the plan that this is states admits must complete certain requirements that you can find in section one hundred and t service members were called up pursuant to five hundred and two at receive federal pay as well so there are many federal aspects to the service even though there is state day to day command so it was unnecessary for the district court to look at the department of labor rate regulation here because as i think we've sort of a stablished title three titles they're entitled to make very clear that the national guard duty here is covered without having to turn to the regulation nevertheless the court then erred in talking about the regulation by recasting the question as one of federal versus state authority as opposed to performing the straightforward analysis that usera requires which is simply looking to see whether the service uniform services as defined by you sarah and then we can here in this case go to title thirty two dollars to find the definition of full time national guard duty so it was a fair to say that the mistake the district judge made was thinking that there was a binary choice words in were three options i think that's his service you know that your pardon i certainly think that is a big major component of the district court's error here is in a misapprehension of the the three ways in which the national guard members may be called into service though certainly looking to the department of labor's regulation which is certainly consistent with the statute but unnecessary to resolve this case i think also led the court down the wrong path so i would think same distinction would be important for the thing that concerned the court about the posse comitatus act so when a national guard person is doing title ten service that act applies but when they're in title thirty two dollars status it does not ye i think the court's failure to grasp the three different status is also led to its error in its consideration of the posse comitatus act now st it's important to recognize that there was no need for the court to address the posse comitatus act that only seems to have come up because the court mishap or met misapprehended the question as one of federal versus state authority as opposed to simply uniform services or not however if you look at the posse comments or federal versus state control perhaps because if he had been under the command of federal officers i think the judge would have said sure federal that he's under the command of state people but operating under federal authority yes the question of i use the term federal authority because that is one of the terms used for the one of the terms that may have confused the district court in the department of labor regulation it does also use the term federal control now when one a member of the national guard is called up under title ten they would be under federal command and control so that would be federal authority and command and would certainly be service in the army subject to the posse comitatus act right service under title thirty two dollars however is under state command it is not service in the army and therefore does not fall within the plain terms of the posse comitatus act now that is it would be fair to say to the district judge thought that the distinction you've just described you know is one of those angels dancing on the head of a pin sort of things where if if all you have to do is say whoa you're under thirty two and so we're going to get to use the national guard for domestic law enforcement purposes isn't that an easy way around the case is not whether there is anything improper or or problematic about the service in the state counterdrug operation though certainly there isn't it's whether a plaintiff mueller fits within the statutory definition of uniform services such that he receives anti discrimination protection and i take it that if we were to agree with your position the richest have to be further proceedings in this case to find out whether in fact there was a problem that's correct we believe that the decision should reversed and the case should be remanded for further proceedings but we take no position on what those proceedings should look like federal service the congress in vision protecting when it enact to use iraq this case really boils down to what the meaning in the intensive section one hundred and twelve of title thirty two really is but you know if we can just loop back for a moment of five o two have it's cifelli singles out drug interdiction and counter drug activities as one of the duties that national guard personnel may be ordered to perform when they're in full time national guard duty status and five o two f obviously is part of title thirty two it's not title ten and it's not sad it just has to be consistent with a state plan but that's fine and one hundred and twelve doesn't change that at all it just says that the secretary of defense has to approve th authorizes national guard members to be called up pursuant to five o two right under title thirty two right and when you look at section one hundred and twelve it is an exception it is a carve out to all to title thirty two as a from all other provisions of title thirty two st one hundred and twelve b says that national guard members may be ordered to perform full time national guard duty under five to add five for drug interdiction cetera isn't that like plain as day the key or the other factors in section one hundred and twelve dollars the fact that it has to be approved by the governor it has to be certified as filling a local say i don't for a moment already why does that make it not not under federal authority when that's what his orders say when that's because a status that you seem to be excluding it is federal permission not federal authority there's a difference between authority and permission in this particular matter the state itself is driving the decision the state's not paying him true it is paid by the federal government there and that the orders didn't come from the state yet they did come from the state the orders do come from the state it was state driven the governor decides when national guard member should be called up to engage in local law enforcement duties the secretary of defense and the president don't have any role in that now your or has his orders say that their title thirty two section five  orders and that is permission there's a distinction between authority and permission as the deal well regulations are to happen all that in federal government is doing in that particular case is passably except in the plan that is issued under section i v why is it pass use you think the secretary of defense isn't doing his job it's passive because but for the governor in the state of illinois approaching the secretary of defense mr mueller would never have engaged in the national guard design i mean it's a hybrid status but it's a status that is made possible only by federally authorized orders that's the statutory term i don't want to use a term that's not in the statute because that could change the meaning of things it's federal authorization for funding but it's not actually recession for the work that we would be would respectively agree with the judge over the district judge who whether he used the words permission or not that's really how section one  is designed is it is a vehicle by which states drive the decision making for law enforcement local law enforcement approach the federal government and ask for their permission for funds to be allocated unlike other sections of title thirty two dollars which do not involve so you're a human depends on this being just a weird exception to all of title thirty two absolutely i don't see it in the statutory language absolutely when you compare section one hundred and twelve compared to the other sections of title thirty two it becomes who quite apparent chapter nine for example involves homeland security duties that is driven by the secretary of defense and his decision making about whether or not such a hole in security defenses are warranted for the national security five o two a they had involves for example the weekend drills in the summer training for national guard members that again is federally government driven the federal government decides that for training purposes that that should happen section one hundred and twelve is i agree with you your honor it is eight creature of an entirely didn't say that i said that's what you're saying it seems to me section one twelve particularly one hundred and twelve b allows this full time national guard duty and then it's got other criteria in there to ensure that things are operating harmoniously with other kinds of responsibilities and in the end that authority the reason why this is not authority is you also have to read this in context with the department of definitions found in usera the but your your view of the regulation lumps together title thirty two dollars in title ten i don't understand the question well there are certain kinds of things if you're really called up for federal service you become part of the army under title ten that's one thing but you don't seem to see that as a legitimate difference no we we view the department of labor's regulation how it's constructed and drafted as more of a contemptuous functional test for deciding when a national guard member is or isn't in in federal authority or under state authority it's not a categorical task but if all that all it took as the appellant's in the immediate contend is that simply depends on the label that's why in the military leave order the department of labor presumably would have said that or not have an active promulgated a regulation at all the fact that they actually used phraseology including for example the words authority and control it was just more of a functional contractual approach to the apartment of labor expects courts and parties to actually engage in section one hundred and twelve because of the state driven nature of the local law enforcement duties that are being performed under this bill why do you think drug interdiction is a local law enforcement you're you're also making an interesting sanction about that there's a great deal of international concern united states about the international movement of many controlled substances including many that are really procurable only outside the borders of the united states cocaine and heroin being good examples of that although probably not the exclusive examples i can think of all sorts of federal concerns at the international level where you might say this is beyond the scope of any one state it's a worthy exercise for the national guard and i agree with you and congress when they intend so it's not like you're having a national guard to do traffic tickets i would agree with you if congress had included those references in section one hundred and twelve as they have others what else would they have to say you want them to write a more wordy statute but they said in one hundred and twelve the the drug interdiction encounter drug activities is something that you can call the thirty title thirty two troops for the reason why it's different is because they specifically said that the services must serve a state law enforcement purpose and they must be authorized and consistent with state law yes mine so it overlaps well not impossible it's not impossible but in this particular case we don't see any other counter language that suggests it is of the national interest your skull so you title thirty two says full time national guard duty it's a defined term means training or other duty and then it gives a bunch of statutory sections one of which is five thousand and twenty four which the members entitle to pay from the united states that sure sounds like mr mueller and interesting lee it doesn't mention section one hundred and twelve and then i sat under section five hundred and two f for the purpose of carrying out drug interdiction counter drug your reading of the statues those words are just not there no with those words are there in full time national guard duty is actually a political we can see that that is a category you giving those words i can't follow your argument all you know the force of the words is that he will be called up as full time as a full time national guard it's for drugs we have other definitions in the statute about how these drug interdiction programs are so are supposed to work you know who says yes you know and who designs them and under whose command and it will it will allow him then to be paid with federal funds either directly as he was paid as alleged in the  full time national guard duty for purposes of userra right the deal while regulation is what's driving this interpretation though which as i mentioned is more of a functional contextual roach i don't think which is really what has to be read that way if it's if reading it that way makes it conflict statue we don't believe there was there isn't a conflict your honor i mean the the statute if there was an intent by congress in the deal well to simply go with labels instead of actually looking at the nature of the type of national guard duty that's at issue they would've either not created the regulation or they would have used labels and said listen per se well they do they say it includes active duty under title ten and duty under title thirty two as examples of what federal authority is after a preamble you have the training or full time national guard duty which loops us back into the definition of full time national guard duty and you also have to read the preamble to that regulation which also describes in functional in functional ways the differences between state activity and federal activity so if you read it in its if it if you read it in its totality it seems to assumptions and presumptions about what there are some one's duty just because they have a certain label in their military we've orders so the legal regime you would like is really kind of a job by job determination about whether somebody is in title ten or title thirty two years as a if the function they're performing is relatively more federal than fine if the function they're one guy who's doing mostly some sort of training for military operations you've got somebody else who's doing more drug interdiction i don't think it would get to that because when you look at the statute the statute will take care of that for example i think would direct you to chapter nine that is an example we think the prototypical example chapter nine of title thirty two dollars of what a federally authorized type of national guard duty would be it's homeland defense initiated and designated by the secretary of defense that is an example of what a federally authorized national guard duty would be that in answer to your question when you talk about an individual lies contextual functional analysis yes based on the statutory authority section one hundred and twelve dollars is diametrically different than some of the other sections found in title thirty two dollars and that's why we believe that is a special unique cargo with that my time is almost up so i will just if anybody has any other questions i see none so we appreciate your remarks thank you thank you