Annetta K. Reiser v. New Jersey Air National Guard; State of New Jersey

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No. 04-3959
ANNETTA K. REISER,
Appellant
v.
NEW JERSEY AIR NATIONAL GUARD;
STATE OF NEW JERSEY,
Defendants/Third-Party Plaintiffs
v.
UNITED STATES OF AMERICA;
DEPARTMENT OF THE AIR FORCE,
Third-Party Defendants
Appeal from the United States District Court
for the District of New Jersey
(D.C. Civil Action No. 03-cv-05166)
District Judge: Honorable Robert B. Kugler
Submitted Under Third Circuit LAR 34.1(a)
September 26, 2005
Before: ALITO, AMBRO, and LOURIE,* Circuit Judges
(Opinion filed: October 28, 2005)
* Honorable Alan D. Lourie, Circuit Judge for the United States Court of Appeals
for the Federal Circuit, sitting by designation.

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OPINION
AMBRO, Circuit Judge
Anita K. Reiser initiated this action in New Jersey Superior Court against the State
of New Jersey and the New Jersey Air National Guard. She alleges that, while serving as
a military technician and Captain in the United States National Guard and New Jersey
National Guard, she was the victim of sexual harassment, gender discrimination, and
unlawful retaliation by her employer in violation of the New Jersey Law Against
Discrimination (NJLAD). See N.J. Stat. Ann. § 10:5-1 et seq. The New Jersey Air
National Guard and State of New Jersey removed the case to the United States District
Court for the District of New Jersey on the basis of federal question jurisdiction, asserting
that Reiser was a federal employee under the provisions of the National Guard Technical
Act of 1968 (NGTA), 32 U.S.C. § 709.
The District Court declined to rule on Reiser’s status as a federal employee but
remanded the case to state court on the theory that a federal defense does not create a
federal question sufficient for removal. Back in the New Jersey Superior Court, the
defendants filed a motion to dismiss Reiser’s complaint, which was denied. The Superior
Court noted that, while Reiser was a federal employee, she might at the same time be
classified as an employee of the State. Relying on that rationale, the Court permitted the

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action to proceed to discovery.
The defendants timely filed a third-party complaint against the United States and
United States Air Force, alleging that the United States was Reiser’s actual employer
under the clear terms of the NGTA. Subsequent to service of the third-party complaint,
the United States removed the entire action (which would include Reiser’s complaint) to
federal district court pursuant to 28 U.S.C. § 1442. In response, Reiser filed a motion to
dismiss the third-party complaint and remand the case once more to state court. The state
defendants filed a cross-motion to dismiss Reiser’s complaint under Rule 12(b)(6) for
failure to state a claim upon which relief can be granted. The District Court granted that
motion, ruling that Reiser was a federal employee whose exclusive remedies to redress
employment discrimination arose under Title VII of the Civil Rights Act of 1964, 42
U.S.C. § 2000e et seq. It concomitantly dismissed Reiser’s motion to dismiss the third-
party complaint as moot. This appeal followed.
Reiser first contends the District Court erred in its determination that her
employment was exclusively federal. She was employed by the Department of the Air
Force at Egg Harbor, New Jersey, as a technician from approximately September 1999 to
December 2002, when she was approved for disability retirement. Throughout her
employment, Reiser served in the position of Intelligence Operations Specialist pursuant
to 32 U.S.C. § 709(b) of the NGTA.
The NGTA provides in relevant part:

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(a) Under regulations prescribed by the Secretary of the Army or the
Secretary of the Air Force, as the case may be, and subject to subsections
(b) and (c), persons may be employed as technicians in--
(1) the administration and training of the National Guard; and
(2) the maintenance and repair of supplies issued to the National Guard or
the armed forces.
(b) Except as authorized in subsection (c), a person employed under
subsection (a) must meet each of the following requirements:
(1) Be a military technician (dual status) as defined in section 10216(a) of
title 10.
(2) Be a member of the National Guard.
(3) Hold the military grade specified by the Secretary concerned for that
position.
(4) While performing duties as a military technician (dual status), wear the
uniform appropriate for the member's grade and component of the armed
forces.
. . .
(e) A technician employed under subsection (a) is an employee of the
Department of the Army or the Department of the Air Force, as the case
may be, and an employee of the United States. However, a position
authorized by this section is outside the competitive service if the technician
employed in that position is required under subsection (b) to be a member
of the National Guard.
42. U.S.C. §709 (emphasis added). Because the NGTA unequivocally states that a
technician such as Reiser is an employee of the Department of the Air Force and the
United States, she undoubtedly is a federal employee. Indeed, at least three federal courts
of appeal have so recognized. See, e.g., Ass’n of Civilian Technicians v. Fed. Labor
Relations Auth., 250 F.3d 778, 781 (D.C. Cir. 2001) (noting that “National Guard
technicians are federal civilian employees”); Leistiko v. Stone, 134 F.3d 817, 818 (6th Cir.
1998) (same); Booth v. United States, 990 F.2d 617, 618 (Fed. Cir. 1993) (acknowledging
that a National Guard technician is a “civilian employee of the United States. Thus,

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federal statutes and regulations governed his employment.”). Moreover, in scrutinizing
the meaning of the NGTA, our Court has explained:
The National Guard occupies a unique position in the federal
structure. It is an essential reserve component of the Armed Forces of the
United States, available with regular forces in time of war, and also may be
federalized in addition to its role under state governments, to assist in
controlling civil disorders. As the successor to the state militias of the
nation’s early years, the Guard fills a role recognized and provided for in
the United States Constitution. This role does not fit neatly within the
scope of either state or national concerns; historically the Guard has been,
and today remains, something of a hybrid. Within each state the National
Guard is a state agency, under state authority and control. At the same time,
the activity, makeup, and function of the Guard is provided for, to a large
extent, by federal law.
. . .
To accommodate the civilian interests of these employees without
intruding on the Guard’s military and security needs, and to recognize by
statute the special employee status that had evolved informally, Congress in
1968 enacted the National Guard Technician Act, 32 U.S.C. § 709. In that
Act, all Guard technicians, who had previously been employees of the
states, were declared to be federal employees, and were thereby afforded
the benefits and rights generally provided for federal employees in the civil
service.
New Jersey Air Nat’l Guard v. Fed. Labor Relations Auth., 677 F.2d 276, 278-79 (3d Cir.
1982) (internal citations and quotations omitted) (emphasis added), cert. denied, 459 U.S.
988 (1982). We went on to note that
[t]his federal employee status was intended primarily to ensure that National Guard
technicians would have a retirement and benefit program that was both uniform
and adequate, and to bring technicians within the coverage of the Federal Tort
Claims Act regarding third party actions against the United States.
Id. at 279 n.2 (internal citations and quotations omitted) (emphasis added). Our
interpretation of the plain language of the NGTA makes clear that Reiser was a federal

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employee at all times relevant to her complaint. Therefore, her attempt to hold the state
defendants liable was properly rejected by the District Court.
The District Court did not rule on whether Reiser had a valid Title VII sex
discrimination claim or whether intra-military immunity applies here. Rather, the Court
reasoned that, because she failed to assert any claims under Title VII, Reiser’s complaint
fails to state a claim upon which relief can be granted. We agree. The Supreme Court has
held that a federal employee’s right to seek a remedy for alleged sex discrimination is
limited exclusively to Title VII. Brown v. Gen. Servs. Admin., 425 U.S. 820, 835 (1976)
(expressly holding that Title VII “of the Civil Rights Act of 1964, as amended, provides
the exclusive judicial remedy for claims of discrimination in federal employment”).
Because Congress has clearly identified National Guard technicians as federal
employees and NJLAD claims are preempted by Title VII, we affirm the District Court’s
dismissal of Reiser’s complaint for failure to state a claim upon which relief can be
granted.

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