Seven members of the South Dakota Air National Guard say their commanding officer violated the law by denying them certain federal employment benefits.
The South Dakota Supreme Court recently heard oral arguments in the case. Lawyers for both sides pointed out it's the first case of its kind in the nation.
The plaintiff appellants are guard members and dual status technicians. That means they are civilian employees, state employees, and guard members.
When they were called to serve on active military duty — for example, an involuntary activation for deployment in Afghanistan — they expected to accrue a specific amount of paid military leave as federal armed forces servicemembers.
The guard’s adjutant general disagreed. He determined the seven members did not qualify for the employment benefits they felt entitled to.
In court, Robert Anderson, representing Major Gen. Mark Morrell, sparred with Justice Mark Salter about the foundation of the decision. At issue: The nature of Active Guard and Reserve (AGR) requirements as they intersect with various federal statutes.
“The National Guard’s position was initially once they got and accepted those orders, they were precluded, and that preclusion continued," Anderson explained.
"That may be their position," Salter said. "My question, though, is what is that based on in terms of legal authority?”
“Their continued AGR status," Anderson said.
“That’s not authority," Salter shot back. "That’s not a statute. That’s not a case. What is the authority for your position?”
Also at issue: the guard’s contention, which was supported by a lower court, that the guard members, in order to prevail in the case, would have to prove the adjutant general acted out of anti-military animus — a legal term for spirit or intent — in denying the accrual of leave.
Several justices, including Justice Janine Kern, questioned Anderson about the burden of proving anti-military animus.
"If you can’t satisfy the anti-military animus, then it becomes an internal matter like this one," Anderson argued.
"How would a person ever establish that a military branch or military officials have an anti-military bias?" Kern said.
Congress passed the Uniformed Services Employment and Reemployment Rights Act, known as USERRA, more than 30 years ago. That was in 1994, shortly after major National Guard deployments in support of Operation Desert Shield and Operation Desert Storm. It was designed as protection for guard members across the nation — increasingly deployed everywhere from overseas combat zones to the U.S. southern border.
Attorney Brian Lawler, representing the guard members, told the court anti-military animus should not be a factor in the case. He also laid out the intent of Congress in USERRA and related legislation he says supports the guard members’ claims.
“Congress said, in enacting that, and also in USERRA, ‘It is our intention that this statute be liberally and broadly interpreted in favor of the servicemember. If there is a coin flip, the servicemember wins.’ Candidly we don’t think this is a coin flip question at all," Lawler said.
The guard members are asking for their employment benefits along with reimbursement for attorney and filing fees. An opinion from the court is not expected for several weeks.
