Before SMITH and MARSHALL, Circuit Judges, and DOOLING, District Judge*fn* .
On April 5, 1962, each of the appellants was suspended from his technician position with the New York Army National Guard without pay. On April 26, 1962, they were notified of a hearing, which was held at a Guard Armory in Brooklyn on April 29, 1962. They subsequently were separated from their technician positions by the commanding officer of 1st Missile Battalion, 244th Artillery, New York Army National Guard. They were advised orally of their dismissal on May 28, 1962. They did not receive any official communication in writing from the United States Department of the Army advising them of their dismissal.
The thirteen appellants, dismissed as aforesaid as technicians employed at a Long Island missile base manned by the New York Army National Guard, appealed their dismissals to the Regional Director, Second United States Civil Service Region, who held them not federal employees. The Civil Service Commission Board of Appeals and Review affirmed the decision. They were then unsuccessful in an attempt to obtain review of their dismissal in the courts of the State of New York, which in Anselmo v. Rockefeller, 19 A.D.2d 761, 241 N.Y.S.2d 761 (3rd Dept. 1963), 19 A.D.2d 761, 241 N.Y.S.2d 761, leave to appeal denied 13 N.Y.2d 599, 245 N.Y.S.2d 1026, 194 N.E.2d 837, held that they were not covered by New York civil service statutes.
After the unsuccessful attempt in the New York courts, action was brought in the United States District Court for the Eastern District of New York against the Secretary of the Army, the Department of the Army, and the United States Civil Service Commission, in the nature of mandamus, seeking reinstatement. On cross motions for summary judgment, the Court, George Rosling, District Judge, entered the order dismissing the action, Anselmo v. Ailes, 235 F. Supp. 203, from which the instant appeal was taken. We find no error and affirm the dismissal of the action.
Appellants contend here that they are federal employees entitled to the protection of 5 U.S.C. § 652*fn1 and § 863*fn2, as members of the civil service, and in the case of nine of their number, the Veteran's Preference protections. Concededly these provisions, if applicable, have not been followed.
The argument is made that since they have been held not to be state employees, and their positions are authorized, their functions and training prescribed and money provided for their pay by Federal law, 32 U.S.C. § 709*fn3 , they must be held federal employees. They point out that the Congress has recognized that they are federal employees so far as a somewhat limited tort responsibility for damages from their actions while on duty is concerned, 32 U.S.C. § 715*fn4 , and that courts have held them to be federal employees*fn5 These arguments are persuasive that for some purposes at least they should be considered federal employees. This does not, however, supply the answer to our problem, which is whether the protections of the Civil Service and Veteran's Preference provisions on separation from employment are applicable to these appellants. From their standpoint, of course, such application would be desirable. But the provisions for their employment and direct supervision by state officers, militate against any intent to include them in the classified or unclassified civil service or otherwise protected federal employment. The state adjutants general - in the case of New York, the Chief of Staff to the Governor - are given unrestricted power to hire and fire within the prescribed standards. National Guard Regulation No. 51, 3, July 1961.
The Congress, in the National Defense Act of 1916, 39 Stat. 166, first provided for the so-called "caretakers" whose functions have been broadened to include these technicians. Enlisted personnel of the National Guard are eligible for employment as such technicians, and under National Guard Regulations the authority to discharge enlisted personnel from the Army National Guard rests with the state. 32 U.S.C.App. § 564.18(c). This is consistent with the basic constitutional scheme providing a state militia available both for national and state purposes, U.S.Const. Art. 1, Sec. 8, clauses 15 and 16, and with the scheme of the National Defense Act as developed in this century giving a dual status to members of the Guard as state militia and as members of a reserve component of the national army under U.S.Const. Art. 1, Sec. 8, clause 12. See State of Maryland for Use of Levin v. United States, 329 F.2d 722, 724-726, 3 Cir. 1964. While the Congress chose to treat the technicians as civilians not on active military duty, it apparently elected to integrate their employment with their National Guard dual status. They have a dual function in that they handle federal equipment in possession of the states, but are appointed and discharged by a state officer designated by the Secretary of the Army, with no federal veto over specific individual hiring and firing except through recognition or non-recognition of the unit as a whole. In view of their dual status, any protection which the Congress might desire to provide by way of review of discharge would require careful dovetailing into this federal-state scheme. The natural place for any such provision would be in the caretaker statute itself, but no provision is there included. Any decision so to include it involves a matter of policy best left for Congressional determination.
We think it unlikely that the Congress ever intended that these men, even though federal employees in some sense, should be considered either members of "the classified civil service" or "permanent or indefinite eligibles." It would be quite inconsistent with the statutory scheme of determination of individual qualifications, appointment, and discharge by state officials to provide federal Civil Service Commission or federal court review of discharge. Were federal standards of appointment, applied by the Commission in the first instance, provided in the caretaker statute there would be a stronger argument for appellants here. In the present scheme, however, we cannot find that any federal review of the individual discharges was contemplated. The New York court in its opinion in Anselmo v. Rockefeller, supra, appears to recognize that even if the appellants be considered New York state employees, they would not come under New York Civil Service law since they are members of the New York organized militia. We likewise are of the opinion that these technicians, members of the New York National Guard employed as civilian "caretakers" do not come under the appointment and discharge provisions of the federal Civil Service law.
The judgment dismissing the action ...