Court: Louisiana Court of Appeal; March 6, 2012; Louisiana; State Appellate Court
The workers’ compensation case involves three National Guardsmen injured on active duty in New Orleans following Hurricane Katrina. The court addresses whether the workers' compensation judge (WCJ) incorrectly determined that the Guardsmen lack a right of action under Louisiana Revised Statutes (La. R.S.) 23:1211, leading to the granting of summary judgment in favor of the State of Louisiana. The court finds that the Guardsmen do have a right of action, reversing the WCJ’s decision and remanding the case.
The factual background reveals that Governor Kathleen Babineaux Blanco declared a state of emergency on August 26, 2005, in response to Hurricane Katrina, and subsequently ordered the National Guard into New Orleans. The Guardsmen were initially activated under state active duty but were later authorized for federal funding under Title 32 U.S. Code for disaster relief efforts. They were injured in a motor vehicle accident on November 6, 2005, while on duty, and received federal benefits for their injuries.
In August 2009, the Guardsmen filed for compensation with the Louisiana Department of Labor but faced a peremptory exception of no right of action from the State. The WCJ denied this exception in March 2010, which was upheld by the court, but the State later sought summary judgment, which the WCJ granted. The appeal reviews the WCJ's decision de novo, focusing solely on the right of action issue under La. R.S. 23:1211.
La. R.S. 23:1211 mandates compensation for National Guard members injured or killed during active duty in a state of emergency declared by the governor, covering medical expenses and disability benefits. Compensation is not available for injuries or deaths occurring while in U.S. service or during travel to/from such service, and claims must be validated per the adjutant general's regulations. The Guardsmen argue they meet the statute's conditions as their injuries occurred during active duty in a declared emergency, asserting that the statute does not require a lack of federal benefits for eligibility. They reference McGee v. State, which rejected imposing such a qualification. Conversely, the State contends that the Guardsmen, having been called into federal service under Title 32, lost their state service status and thus are not entitled to state benefits, as defined by 10 U.S.C. 12602(b)(2) and supported by precedents like Wells v. State. The State emphasizes that allowing state compensation while classifying Guardsmen as federal employees under the Federal Tort Claims Act is illogical. Testimony from a Guardsman indicating they were on federal orders bolsters the State's position, leading to the conclusion that the trial court correctly determined the Guardsmen lack a right of action under La. R.S. 23:1211.
To establish a right of action under La. R.S. 23:1211 (as of November 2005), the Guardsmen needed to prove five elements: 1) they were National Guard members, 2) who sustained accidental injuries, 3) while on active duty, 4) during a governor-declared state of emergency, and 5) while not 'in the service of the United States or traveling to or from such service.' The key point of contention in the State’s summary judgment motion was the fifth element regarding their federal service status. While National Guard members in Title 32 status are classified as federal employees for certain benefits, this classification does not apply to the determination of their entitlement to state workers’ compensation benefits. The legal question at hand revolves around state law and the interpretation of the workers’ compensation statute. Reliance on a Guardsman's deposition to prove federal service status was deemed inappropriate since it is undisputed that the Guardsmen were serving under Title 32 status, one of three distinct duty statuses.
In Title 32 status, National Guard members can be ordered to duty by state governors, allowing them to perform disaster relief without being subject to the Posse Comitatus Act. During Hurricane Katrina, Guardsmen were initially activated under state active duty by their governors. Subsequently, a request was made to retroactively transfer them to Title 32 status to standardize their pay and benefits. Additionally, National Guard personnel can also be activated in federal status under 10 U.S.C. 12304, allowing the President to call them into federal service for operational missions, under which they receive federal pay and benefits.
Members of the National Guard, when serving in Title 32 status under the command of a state governor, are generally restricted by the Posse Comitatus Act from performing law enforcement functions unless authorized by the Constitution or Congress. The critical legal question is whether Title 32 status constitutes federal service under Louisiana law (La. R.S. 23:1211(B)). The term "in the service of the United States of America" has not been defined in this statute since its inception in 1968. Understanding its meaning requires examining the National Guard's constitutional and statutory background.
The National Guard operates as a "hybrid" organization, comprising both state and federal components. Since 1933, individuals enlisting in a state National Guard unit are simultaneously enlisted in the National Guard of the United States. Congress has established distinct statutes for activating the National Guard at the federal level. During active federal duty, state affiliation is suspended, and National Guard members are not considered in federal service unless ordered to active duty or federally mobilized. The Supreme Court's analogy of National Guard members maintaining three "hats" (civilian, state militia, and army) illustrates that they retain state service status unless formally called into federal service. The determination of whether a Guardsman is in federal or state service hinges on which "hat" they are wearing at the time.
In Gilbert, the court evaluated whether National Guard members in Title 32 status engaged in an anti-drug task force violated the Posse Comitatus Act, which restricts federal military involvement in civil law enforcement. The key issue was whether these members were in federal service, as the Act applies only to National Guard personnel on federal duty. The defendant contended that since the Guardsmen were serving full-time under Title 32 and receiving federal compensation, they were considered in federal service. The court rejected this, stating that status is determined by command and control, not by funding sources or benefits. Consequently, despite receiving federal pay, the Guardsmen were still state National Guard members, not active duty federal soldiers. The court concluded that the National Guard members were not in federal service, thus the Posse Comitatus Act did not apply.
In the current case, the State similarly argued that Guardsmen activated under Title 32 and receiving federal benefits were in federal service. This argument was also dismissed, reaffirming the constitutional distinction between state and federal authority. The phrase "in the service of the United States" in Louisiana law (La. R.S. 23:1211(B)) was interpreted to mean a National Guard member serving in a purely federal status under Title 10. Since the Guardsmen were not in federal service, they retained the right to file a workers’ compensation claim under La. R.S. 28:1211.
The judgment granting the State's motion for summary judgment was reversed, and the matter was remanded for further proceedings. The appellants included Michael Parker, Peter Reyes, and Bryce Williams, while Troy Serpas, another Guardsman with a claim, did not join the appeal. The State had initially filed a peremptory exception of prescription but withdrew it. The rulings cited indicate that the law in effect at the time of the work-related incident governs workers’ compensation cases. Additionally, 10 U.S.C. 12602(b)(2) classifies full-time National Guard duty as active duty in federal service for benefits purposes, and 28 U.S.C.A. 2671 includes National Guard members on certain duties as government employees under the Federal Tort Claims Act (FTCA).
