United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued February 9, 2010 Decided April 30, 2010

No. 09-5153

ASSOCIATION OF CIVILIAN TECHNICIANS, INC., ET AL.,

APPELLANTS

v.

UNITED STATES OF AMERICA, ET AL.,

APPELLEES

Appeal from the United States District Court

for the District of Columbia

(No. 1:07-cv-01747)

Daniel M. Schember argued the cause and filed the briefs

for appellants. 

Kathryn A. Donnelly, Special Assistant U.S. Attorney,

argued the cause for appellees. With her on the brief was R.

Craig Lawrence, Assistant U.S. Attorney. Lanny J. Acosta, Jr.,

Special Assistant U.S. Attorney, entered an appearance.

Before: ROGERS and TATEL, Circuit Judges, and WILLIAMS,

Senior Circuit Judge.

Opinion for the Court by Circuit Judge ROGERS.
2

Concurring opinion by Senior Circuit Judge WILLIAMS.

ROGERS, Circuit Judge: Four former civilian technician

members of the Puerto Rico Army National Guard (“PRANG”)

joined two labor organizations (collectively the “Guardsmen”)

in contending the district court erred in upholding the policy and

practice of the United States, the Secretary of the Army, and the

Chief of the National Guard Bureau (collectively “the United

States”) of recommending, rather than ordering, reinstatement

of discharged members of a state National Guard.1

 The

Guardsmen contend such authority is plainly conferred by 32

U.S.C. § 110, which authorizes the President to “govern” and

“issue orders” to a state National Guard. The plain text does not

address reinstatement. The United States’ interpretation of its

enforcement powers is consistent with the text read in light of 

the Militia Clause of the United States Constitution and the

statutory scheme and represents a reasoned judgment of its

relationship with the states’ National Guard. Accordingly, we

affirm the grant of summary judgment to the United States. 

I. 

The Guardsmen had dual status, by virtue of working as

civilian technicians, which required them to be members of a

state National Guard. 32 U.S.C. § 709(b)(2). Upon being

notified of their proposed discharge from PRANG, pursuant to

Puerto Rico Regulation 635-100 on involuntary separation,

either the Guardsmen or their unit commanders filed rebuttals. 

However, U.S. Army Regulation 135-178 on administrative

separations required PRANG to notify the Guardsmen in writing

1

 Because the differences between the status of Puerto Rico

and a state are immaterial for purposes of this appeal, we will treat

PRANG as a state National Guard. See Penagaricano v. Llenza, 747

F.2d 55, 56 n.1 (1st Cir. 1984).
3

of their right to request a hearing by an administrative board. 

None of the Guardsmen received this notice or appeared before

an administrative board prior to their discharges. Instead, after

filing rebuttals, they received honorable discharges from

PRANG and were transferred to the Army Reserves or the

Retired Reserves, depending on their length of service.

The Guardsmen appealed their discharges to the Army

Board for Correction of Military Records (“the Board”)

requesting that their National Guard records be corrected to

show they were never discharged and they were not absent

without leave when PRANG was activated after Hurricane

George. The Board found that the discharges violated federal

regulations, which required both notice of a right to a hearing or

appearance before an administrative board prior to discharge for

persons with over six years of service, and the approval of the

discharge by the Chief of the National Guard Bureau in the

Department of Defense for any soldiers with over eighteen but

less than twenty years of service.2

 Concluding the discharges

were therefore erroneous and unjust, but that it lacked authority

to order the Guardsmen’s reinstatement in PRANG, the Board

recommended that the Adjutant General of Puerto Rico amend

the discharge orders, reinstate the Guardsmen with all pay,

allowance, and retirement points, and correct PRANG records

to show they were not discharged. The Board ordered the

correction of U.S. Army Reserves records to reflect the

Guardsmen’s proper amount of service in PRANG, assuming no

discharge. PRANG declined to reinstate the Guardsmen. The

Guardsmen thus remained in the U.S. Army Reserves following

their discharges from PRANG but automatically lost their

2

 See Enlisted Administrative Separations, Army Reg.

135-178 §§ 3-4(a)(7), 3-10 (2007); Enlisted Separations, Nat’l

Guard Reg. 600-200 §§ 6-2, 6-32, 6-36 (2009). 
4

civilian technician jobs because they were no longer members

of PRANG.

The Guardsmen filed suit, seeking declaratory and

injunctive relief that the United States’ “ongoing policy and

practice” of refusing to order reinstatement of Guardsmen and

correction of state National Guard records and related relief was

“based on an erroneous belief of lack of authority.” Compl. ¶ 1. 

The district court ruled the Guardsmen’s claim was cognizable

under the Administrative Procedure Act (“APA”), 5 U.S.C.

§ 706, and that the United States’ interpretation of its authority

was reasonable and entitled to deference, granting summary

judgment to the United States. Ass’n of Civilian Technicians,

Inc. v. United States, 601 F. Supp. 2d 146 (D.D.C. 2009). The

Guardsmen appeal, and our review of the grant of summary

judgment is de novo. See Fontana v. White, 334 F.3d 80, 81

(D.C. Cir. 2003).

II.

The Guardsmen focus on 32 U.S.C. § 110, which provides:

“The President shall prescribe regulations, and issue orders,

necessary to organize, discipline, and govern the National

Guard.” They contend section 110 plainly authorizes the

President to govern the PRANG, which necessarily includes the

power to enforce federal regulations on discharge procedures. 

Because Congress placed this authority in the Secretary of the

Army acting through the Board, see 3 U.S.C. §§ 301, 302; 10

U.S.C. § 1552, the Guardsmen maintain that section 110’s

authorization to “govern” and “to issue orders” means the

Board can order reinstatement and correction of PRANG records

where separation from PRANG violated federal regulations. 

The Guardsmen do not challenge the federal relief granted by

the Board. 
5

The United States responds that it has interpreted “govern”

in section 110 to authorize regulations and orders that apply

generally to all the states’ National Guard while leaving control

of the day-to-day operations to the states. It maintains that its

interpretation is due deference under Chevron, U.S.A., Inc. v.

Natural Resources Defense Council, Inc., 467 U.S. 837 (1984). 

The United States does not explain on what basis the court

might conclude Congress intended the Board’s interpretation of

a statute to be accorded the force of law, see United States v.

Mead Corp., 533 U.S. 218, 226–27 (2001), and the record does

not indicate that the Board’s interpretation of section 110 was

adopted in a rulemaking or formal adjudication; the Board’s

rules of procedure call for informal proceedings, see 32 C.F.R.

§ 581.3, and the provisions of the Administrative Procedure Act

on adjudications do not apply to “the conduct of military . . .

functions,” 5 U.S.C. § 554(a)(4). However, it is undisputed that

the United States’ “policy and practice” is longstanding, and

under the circumstances the court considers counsel’s

explanation of the statutory basis for the denial of the full relief

sought by the Guardsmen to represent the United States’ “fair

and considered judgment.” Ass’n of Bituminous Contractors,

Inc. v. Apfel, 156 F.3d 1246, 1252 (D.C. Cir. 1998). We

conclude, regardless of the standard of review, that the denial of

full relief to the Guardsmen was correct. See Fontana, 334 F.3d

at 244. 

We look to the text of the statute, recognizing that words

are to be read in the context in which they are used and in the

broader context of the statutory scheme. See, e.g., Robinson v.

Shell Oil Co., 519 U.S. 337, 341 (1997). The plain text of

section 110 does not address the nature and extent of the United

States’ governance of the states’ National Guard. Although it

authorizes the United States to “govern,” neither the text nor the

context require that the word be given its most expansive

meaning. The Militia Clause and the statutory scheme
6

contemplate a shared responsibility for the National Guard,

although the precise nature of that relationship is not always

obvious. As the Fifth Circuit has observed, “in the modern-day

federal scheme, the national guard has come to occupy a unique

place. It has become, by design, a “hybrid” entity that carefully

combines both federal and state characteristics, sometimes

distinctly and sometimes not.” Lipscomb v. Fed. Labor

Relations Auth., 333 F.3d 611, 614 (5th Cir. 2003). This court

has made a similar observation, noting “[t]he National Guard 

. . . plays a dual role, operating under joint federal and state

control.” In re Sealed Case, 551 F.3d 1047, 1048 (D.C. Cir.

2009).

The Militia Clause of the Constitution provides that

Congress shall have the power: 

To provide for organizing, arming, and disciplining,

the Militia, and for governing such Part of them as

may be employed in the Service of the United States,

reserving to the States respectively, the Appointment

of the Officers, and the Authority of training the

Militia according to the discipline prescribed by

Congress; 

U.S. CONST., art. I, § 8, cl. 16 (emphasis added). The Militia in

this Clause is the National Guard, see Gilligan v. Morgan, 413

U.S. 1, 6 (1973); In re Sealed Case, 551 F.3d at 1048; see also

32 U.S.C. § 101(4), and the Clause expressly contemplates the

reservation of powers to the States. The statutory scheme for the

National Guard appears in Title 10, which addresses the armed

forces generally and establishes the Board, and Title 32, which

addresses the National Guard specifically. Title 10 provides
7

with respect to the Army National Guard of the United States3

that, when not on active duty, its members “shall be

administered, armed, equipped, and trained in their status as

members of the Army National Guard.” 10 U.S.C. § 10107; see

id. § 12401. Title 32 provides, in turn, that when not called to

federal duty by the President, 32 U.S.C. §§ 101(12), 102, 325,

a state National Guard is under the command of the state

Governor and the State Adjutant General, who is appointed by

the Governor, 32 U.S.C. § 314. See Charles v. Rice, 28 F.3d

1312, 1315 (1st Cir. 1994); Kise v. Dep’t of Military & 

Veterans Affairs, 832 A.2d 987 (Pa. 2003). This command falls

within a federal framework established by Congress for the

organization, discipline and governance of the states’ National

Guard in recognition that they are part of the force that may be

needed for national security. See, e.g., 32 U.S.C. §§ 102–05.

Annual appropriations enacted by Congress provide funding to

support the states’ National Guard, including the issue of arms,

other military supplies, and other expenses. Id. §§ 106–07. If

a State fails timely to comply with or enforce a requirement or

regulation, it risks loss of federal benefits, “as the President may

prescribe,” namely the loss of “money or other aid or benefit or

privilege authorized by law.” Id. § 108. Limitations are also

placed on states’ maintenance of other troops. Id. § 109. To

ensure the readiness of the states’ National Guard upon

activation to federal status, see §§ 102, 104(b), 105, the

3

 As the court explained in In re Sealed Case, “[t]hrough 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. 10 U.S.C. § 10503(8). These state National Guard

units are known as the Army National Guard. 32 U.S.C. § 101(4). 

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. 10 U.S.C. § 10105.” 551 F.3d at 1048. 
8

President is to “prescribe regulations, and issue orders,

necessary to organize, discipline, and govern the National

Guard.” Id. § 110. The President also may suspend certain

provisions of Title 32 in time of war or congressionally declared

emergency. Id. § 111. Congress established various personnel

requirements to be eligible for federal recognition, such as the

length of enlistment and related matters, id. §§ 302–04, but it did

not address reinstatement of discharged Guardsmen to their state

National Guard. 

The United States has interpreted the statutory scheme to

require the Commonwealth of Puerto Rico, when its National

Guard is not on active federal duty, to be responsible for its

administration, arming, equipping, and training. This

interpretation is consistent with the statutory scheme setting out

the Board’s authority in section 1552 of Title 10. The United

States explains the regulations and orders issued pursuant to

section 110 are designed to establish uniform systems,

processes, and standards among the states’ National Guard. 

Thus, the National Guard Bureau issued Regulation 600-200 on

separation of enlisted members from a state National Guard in

an effort to standardize the due process afforded to members

regardless of their state citizenship. See Appellees’ Br. 18. So

interpreted, section 110 does not authorize the United States to

take over a state National Guard’s daily administrative duties

upon determining the state National Guard has failed to comply

with discharge regulations. Rather, “[t]he daily operations of

the national guard units are . . . recognized generally to be under

the control of the states, but governed largely by substantive

federal law.” Lipscomb, 333 F.3d at 614. The United States

acknowledges that “[t]o extend that power to the federal

government would completely undermine the states’ authority

to administer their own affairs while in a Title 32 (non-federal)

status.” Appellees’ Br. 17.
9

This interpretation of section 110 is consistent with the

statutory text as used in the statutory scheme where governance

finds a reasoned balance between federal and state control. It

divides authority in a manner compatible with the National

Guard’s “dual role,” In re Sealed Case, 551 F.3d at 1048,

whereby the United States has chosen to defer to the state

authorities on matters of daily operations, including individual

membership. Moreover, it appears Congress has implicitly

ratified the United States’ “policy and practice” of refusing to

issue orders of individual reinstatement to a state National

Guard. See Milhouse v. Levy, 548 F.2d 357, 363 (D.C. Cir.

1976). As the Guardsmen acknowledge, for many years the

Board has consistently issued recommendations rather than

orders to the states’ National Guard when it has found an error

or injustice. See, e.g., Christoffersen v. Wash. State Air Nat’l

Guard, 855 F.2d 1437, 1442 (9th Cir. 1988); Jorden v. Nat’l

Guard Bureau, 799 F.2d 99, 102 n.5 (3rd Cir. 1986); Williams

v. Wilson, 762 F.2d 357, 360 n.6 (4th Cir. 1985); Navas v. Vales,

752 F.2d 765, 770 (1st Cir. 1985). Section 110 in Title 32 has

not been amended since its enactment in 1916. In 1994, when

Congress amended the provision of Title 32 that authorizes

withholding of federal benefits from a state National Guard in

violation of a federal requirement, 32 U.S.C. § 108 (2009), it did

not specify other remedies, although at the time appellate courts

had upheld the United States’ position that it lacked authority to

order individual reinstatements in a state National Guard, e.g.

Christoffersen, 855 F. 2d at 1442; Jorden, 799 F.2d at 102 n.5.

See Lorillard, Div. of Loew’s Theatres, Inc. v. Pons, 434 U.S.

575, 580–81 (1978). Although Congress’ failure to act with

regard to the United States’ “policy and practice” might be due

to inadvertence or inattention, this seems unlikely given its

attention to regulatory enforcement in amending Titles 10 and 

32 in 1994 upon establishing the National Guard Bureau. See

Milhouse, 548 F.2d at 363. 
10

The Guardsmen object that the United States’ interpretation

“eliminates the President’s authority to ‘prescribe regulations

and issue orders, . . . to . . . govern the National Guard,’”

Appellants’ Br. 12, and would tie the President’s hands when he

needs to call upon the state National Guard if states were to

discharge the members of their National Guard contrary to

federal regulations, see id. at 11 n.8. But the United States’

interpretation of “govern” simply reflects its judgment about the

proper balance in the federal-state relationship contemplated by

the Constitution and mandated by Congress. The Guardsmen’s

position erroneously assumes that to “issue orders” can only

mean that orders must be issued in individual cases and not to

govern the states’ National Guard as a whole. They overlook

Congress’ organizational and command control, as well as the

prohibition against general disbandment or reduction below a

“minimum strength”of a state National Guard under 32 U.S.C.

§ 104. Furthermore, the United States retains the power of the

purse arising from the reality that “[t]he Federal Government

provides virtually all of the funding, the materiel, and the

leadership for the State [National] Guard units.” Perpich v.

Dep’t of Defense, 496 U.S. 334, 351 (1990); cf. Laird v. Tatum,

408 U.S. 1, 15 (1972); New York v. United States, 505 U.S. 144,

167 (1992). 

Because the United States’ interpretation is consistent with

the Militia Clause and the statutory scheme and represents a

reasoned judgment about its role regarding reinstatements of

discharged members of the state National Guard, we conclude 

the denial of full relief to the Guardsmen was correct. Deciding

where to draw the line involves subtle considerations the United

States is well-positioned to evaluate and is, under the

circumstances, deserving of our deference. Cf. Cargill v. Marsh,

902 F.2d 1006, 1007 (D.C. Cir. 1990). The Guardsmen,

therefore, cannot prevail on their claim that the United States’

refusal to order their reinstatement in PRANG is unlawfully
11

withheld agency action under the APA, 5 U.S.C. § 706(1) or

arbitrary or capricious under the APA, 5 U.S.C. § 706(2). In

challenging the United States’ interpretation of section 110, the

Guardsmen acknowledge that they have not more generally

challenged the denials of the requested relief for lack of

reasoned decisionmaking. Oral Argument Tape of Feb. 9, 2010

at 20.00–22.00. 

Alternatively, the Guardsmen contend that PRANG records

are records of the Department of the Army subject to Board

correction pursuant to 10 U.S.C. § 1552. But section 1552

provides that “the Secretary of a military department may

correct any military record of the Secretary's department when

the Secretary considers it necessary to correct an error or remove

an injustice.” 10 U.S.C. § 1552(a)(1). Although a state National

Guard may have federal status for certain statutory purposes,

see, e.g., In re Sealed Case, 551 F.3d at 1053; Lipscomb, 333

F.3d at 613, whether it has federal status “necessarily turns on

the particular [statutory] provision at issue in each case,” In re

Sealed Case, 551 F.3d at 1053. The Guardsmen point to nothing

in section 1552 that would suggest Congress contemplated the

Board’s authority extends to the correction of state National

Guard records. Nor do they reference any other statute that

would bring state National Guard records within the Department

of the Army for purposes of section 1552. In view of the plain

text, the Guardsmen therefore fail to show the United States’

refusal to order correction of PRANG records was arbitrary or

capricious or contrary to law.

Accordingly, we affirm the grant of summary judgment to

the United States.
WILLIAMS, Senior Circuit Judge, concurring: I agree 

with the panel’s opinion and write separately only to address 

an oddity in the principle invoked from Association of 

Bituminous Contractors v. Apfel, 156 F.3d 1246, 1252 (D.C. 

Cir. 1998). See Maj. Op. at 5. Under that decision, so long as 

an agency has a track record of resolving an issue consistently 

in the past, we treat counsel’s explanation as representing the 

agency’s “‘fair and considered judgment’” even if the agency 

has never explained its reasoning prior to counsel’s litigation 

arguments. Bituminous Contractors, 156 F.3d at 1252 

(quoting Auer v. Robbins, 519 U.S. 452 (1997)); cf. Hill v. 

Gould, 555 F.3d 1003, 1008 (D.C. Cir. 2009) (suggesting that 

United States v. Mead Corp., 533 U.S. 218 (2001), may have 

superseded Bituminous Contractors to the extent that that case 

held that an agency position could be entitled to deference in 

the circumstance at issue); Public Citizen v. Federal Motor 

Carrier Safety Administration, 374 F.3d 1209, 1218 (D.C. Cir. 

2004) (reciting the standard principle, in the context of a 

reasoned decision-making claim, that “[t]he expertise of the 

agency, not its lawyers, must be brought to bear on [the] issue 

in the first instance” (citing SEC v. Chenery, 318 U.S. 80 

(1943))).

A curiosity of the Bituminous Contractors rule is that in 

any case in which it is applied and the statute (as ultimately 

construed by the court) allows but does not require the 

agency’s construction, a litigant could successfully raise an 

argument under Prill v. NLRB, 755 F.2d 941, 947-48 (D.C. 

Cir. 1985)—namely, that a remand is in order because the 

agency may have wrongly thought itself compelled to adopt 

its interpretation. See PDK Labs. Inc. v. DEA, 362 F.3d 786, 

798 (D.C. Cir. 2004) (applying Prill and discussing “the Prill

line of decisions”). So far as appears, Bituminous Contractors

left unaltered the pre-existing principle that a Prill claim 

cannot be defeated by litigation-stage assurances that the 

agency would have chosen its challenged interpretation as a 
2

matter of discretion had it realized in the first place that it 

possessed discretion. 

In this case, the challengers have affirmatively disavowed 

any argument that the agency decision failed for want of 

reasoned decisionmaking, see Maj. Op. at 10-11, which would 

encompass a contention under Prill, so that decision poses no 

obstacle to our rejecting their claim.