Dual-Status Technicians Earn Paid Military Leave While on Title 10 Duty; No Antimilitary Animus Needed for USERRA Claims Involving Military-Only Benefits

Dual-Status Technicians Earn Paid Military Leave While on Title 10 Duty; No Antimilitary Animus Needed for USERRA Claims Involving Military-Only Benefits

Case: Christiansen v. Major General Morrell, 2025 S.D. 25 (S.D. Apr. 16, 2025) — Opinion by Salter, J.; Jensen, C.J., and Kern, DeVaney, and Myren, JJ., concurring.

Introduction

This case resolves two important questions at the intersection of federal employment benefits and military service by members of the National Guard who also serve as federal civilian employees (dual-status technicians):

  • Whether plaintiffs asserting entitlement to a military-only employment benefit under the Uniformed Services Employment and Reemployment Rights Act of 1994 (USERRA), 38 U.S.C. §§ 4301–4335, must prove antimilitary animus; and
  • Whether dual-status technicians accrue 15 days of paid military leave under 5 U.S.C. § 6323(a)(1) while serving on federal active duty under Title 10 orders, notwithstanding the military-leave exclusion in 32 U.S.C. § 709(g)(2) for certain “Active Guard and Reserve” (AGR) duty.

The plaintiffs—seven South Dakota Air National Guard members employed as federal dual-status technicians—alleged that the Adjutant General wrongfully denied them military leave benefits while they served on Title 10 orders. The circuit court dismissed their USERRA claims sua sponte, reasoning that plaintiffs had not proved antimilitary animus. The South Dakota Supreme Court reversed, holding that no animus showing is required when the benefit exists only for military employees and that these dual-status technicians are entitled to accrue paid military leave while serving under Title 10 orders.

Summary of the Opinion

  • No antimilitary animus requirement for military-only benefits: When the claimed benefit is only available to military members (e.g., paid military leave under 5 U.S.C. § 6323), a USERRA claimant need not show military service was a motivating factor or that the employer acted with antimilitary animus (relying on Adams v. DHS and Butterbaugh).
  • Title 10 service triggers § 6323 leave accrual: Dual-status technicians accrue 15 days of paid military leave while on Title 10 active duty. The exclusion in 32 U.S.C. § 709(g)(2) applies only when a technician is “performing Active Guard and Reserve duty” as defined in 10 U.S.C. § 101(d)(6)(A)—i.e., full-time National Guard duty under Title 32 for 180+ consecutive days for training/administration purposes. Title 10 service is not “Active Guard and Reserve duty.”
  • Orders do not override status: Administrative convenience or “convert/revert” language in Title 32 AGR orders cannot collapse Title 10 and Title 32 statuses; nature of duty and the statutory authority control. A Guardsman cannot simultaneously serve in state militia status (Title 32) and in federal active-duty status (Title 10) (citing Perpich and 32 U.S.C. § 325).
  • Disposition: Reversed and remanded for further proceedings, including calculation of benefits and potential remedial relief.

Detailed Analysis

Factual and Procedural Background

The plaintiffs were employed as dual-status technicians under 32 U.S.C. § 709—a civilian role in the Department of the Air Force tethered to National Guard membership. They took leaves of absence from their civilian technician positions when they accepted Active Guard and Reserve (AGR) orders under Title 32, with those orders expressly allowing conversion to Title 10 status for specified federal missions and subsequent reversion to Title 32 AGR status.

The dispute centered on whether plaintiffs accrued 15 days of paid military leave in the fiscal years during which they were converted to Title 10 status. The Adjutant General denied accrual, and the circuit court dismissed the case sua sponte, requiring proof of antimilitary animus. Plaintiffs appealed.

Precedents and Authorities Cited

  • USERRA’s purposes and protections: 38 U.S.C. § 4301(a) (encouraging service by minimizing civilian-career disadvantages; minimizing disruption through reemployment; prohibiting discrimination). The Court cautioned that purpose statements cannot override operative text (citing Georgia v. President of the U.S., 46 F.4th 1283, 1298 (11th Cir. 2022) and Scalia & Garner).
  • USERRA benefits and animus:
    • 38 U.S.C. § 4311(a) (no denial of any “benefit of employment” due to service).
    • 38 U.S.C. § 4311(c)(1) (motivating-factor standard for discrimination claims).
    • Adams v. Dep’t of Homeland Sec., 3 F.4th 1375 (Fed. Cir. 2021); Butterbaugh v. DOJ, 336 F.3d 1332 (Fed. Cir. 2003); Pucilowski v. DOJ, 498 F.3d 1341 (Fed. Cir. 2007) — Recognize military leave as a “benefit of employment” and hold that when a benefit is available only to military members, a claimant need not prove antimilitary animus or motivating-factor discrimination to obtain it.
    • Staub v. Proctor Hospital, 562 U.S. 411 (2011) and Ayoub v. Board of County Commissioners, 964 F. Supp. 2d 1288 (D.N.M. 2013) — inapposite because they address discriminatory termination (continued-employment claims), not entitlement to a military-only benefit.
  • Dual-status technicians and federal employment:
    • 5 U.S.C. § 6323(a)(1) (15 days paid military leave accrues at 15 days per fiscal year for eligible federal employees); 5 C.F.R. § 353.208 (employee must be permitted to use accrued military leave during service).
    • 10 U.S.C. § 10216(a)(2) (dual-status technicians are a separate category of civilian employees); 5 U.S.C. § 2105(a).
    • Ohio Adjutant Gen.’s Dep’t v. FLRA, 598 U.S. 449 (2023) (dual-status technicians are federal employees of the Department of the Army/Air Force). For USERRA, the “employer” is the state Adjutant General, 38 U.S.C. § 4303(4)(B).
  • Title 10 vs. Title 32 status; AGR and simultaneous service:
    • 32 U.S.C. § 709(g)(2) — the § 6323 military leave benefit does not apply to a technician “performing active Guard and Reserve duty (as defined in 10 U.S.C. § 101(d)(6)).”
    • 10 U.S.C. § 101(d)(6)(A) — “Active Guard and Reserve duty” means full-time National Guard duty (Title 32), for 180+ consecutive days, for organizing/administering/recruiting/instructing/training the reserve components.
    • 10 U.S.C. § 101(d)(5) — defines “full-time National Guard duty” as duty performed in a member’s status as a member of the National Guard of a State under Title 32 provisions.
    • 32 U.S.C. § 325 and Perpich v. Dep’t of Def., 496 U.S. 334 (1990) — a Guardsman ordered to federal active duty is relieved from state National Guard duty during that federal period; simultaneous state and federal service is mutually exclusive.
    • SDCL 33-2-1 and 33-2-8; 10 U.S.C. §§ 12301(d), 12302, 12304; 10 U.S.C. § 802 — confirm change in command and legal regime between state militia duty and federal active duty.

Legal Reasoning

1) USERRA animus is not required for military-only benefits

USERRA forbids denial of any “benefit of employment” due to military service (38 U.S.C. § 4311(a)), and “military leave” under 5 U.S.C. § 6323 is such a benefit (Butterbaugh; Pucilowski). While § 4311(c)(1) articulates a motivating-factor standard for discrimination claims, the Court adopted the Federal Circuit’s well-reasoned distinction: when the benefit at issue is one only available to military members, a USERRA claimant does not have to prove antimilitary animus or that service was a motivating factor (Adams, 3 F.4th at 1377–78; Maiers, 524 F. App’x at 623). The circuit court’s reliance on Staub and similar continued-employment cases (which inherently require proof of discriminatory intent) was misplaced, and its sua sponte dismissal was error.

2) Title 10 service entitles dual-status technicians to § 6323 accrual

The Court harmonized three statutes:

  • 5 U.S.C. § 6323(a)(1): federal employees who are also service members accrue 15 days of paid military leave per fiscal year.
  • 32 U.S.C. § 709(g)(2): this leave “does not apply” to a dual-status technician “performing active Guard and Reserve duty” as defined in 10 U.S.C. § 101(d)(6).
  • 10 U.S.C. § 101(d)(6)(A): “Active Guard and Reserve duty” is a term of art—Title 32 full-time National Guard duty for 180+ consecutive days for training/administrative purposes.

Because plaintiffs sought accrual only for periods of Title 10 service—and Title 10 federal active duty is not “Active Guard and Reserve duty” under § 101(d)(6)—the § 709(g)(2) exclusion does not apply. Thus, the default rule in § 6323 governs, and plaintiffs are entitled to 15 days of paid military leave accrual in those fiscal years while on Title 10 orders.

3) Nature of duty and governing statutes control over administrative papering

The Adjutant General argued the technicians’ original Title 32 AGR orders “subsumed” the intervening Title 10 orders, characterizing a single continuous AGR period that should preclude leave accrual. The Court rejected that argument for both textual and structural reasons:

  • The operative statutes turn on the nature and authority of duty performed (Title 10 vs. Title 32), not on administrative convenience or internal instruction (see ANGI 36-101 reference). Internal agency guidance cannot override statutes.
  • By law, a Guardsman cannot simultaneously serve in state militia status and federal active-duty status; Title 10 orders suspend Title 32 status during the federal period (32 U.S.C. § 325; Perpich).
  • Even the referenced AGR order text contemplates separate, legally distinct periods: “convert” to Title 10 for mission support; “revert” to Title 32 upon completion.
  • Nothing in § 6323 imposes a “causation” requirement tying leave to the set of orders that originally pulled the employee from civilian work. The statute instead provides entitlement “for active duty,” full stop.

The Court also addressed the “double dipping” concern raised below. Congress confronted perceived windfalls by enacting § 709(g)(2) in 2016 to remove § 6323 leave for dual-status technicians performing 180+ day Title 32 AGR duty for training/administration—precisely where the concern arises. That policy choice does not extend to Title 10 duty.

Impact

Immediate effects

  • For dual-status technicians in South Dakota: Those who served under Title 10 orders are entitled to 15 days of paid military leave accrual for applicable fiscal years (subject to rollover caps), plus potential damages for lost benefits and attorney fees on remand (38 U.S.C. § 4323).
  • For the South Dakota National Guard/Adjutant General: Policies and practices must recognize that Title 10 conversions break Title 32 status for benefit purposes; technicians on Title 10 accrue § 6323 leave. Denial cannot be grounded on “continuing AGR” theories or internal guidance contrary to statute.

Broader significance

  • Persuasive authority beyond South Dakota: While a state supreme court decision is not binding outside the state, this opinion applies and synthesizes federal statutes and follows persuasive Federal Circuit authority. Other states’ Adjutants General and Guard components may adjust policies rather than risk USERRA litigation in state courts (which have jurisdiction over suits against a State as employer, 38 U.S.C. § 4323(b)(2)).
  • Clarifies the USERRA framework: Distinguishes animus-based discrimination claims (e.g., wrongful discharge) from entitlement claims to military-only benefits, streamlining proof requirements for the latter.
  • Administrative law and textualism: Emphasizes that purpose clauses and internal instructions cannot displace the operative statutory text; the statutory definition of “Active Guard and Reserve duty” controls the § 709(g)(2) exclusion.
  • Compliance and recordkeeping: Guard components should track Title 10 conversion periods with precision, promptly restore Title 32 status upon reversion, and ensure that § 6323 leave accrues and can be used during service (5 C.F.R. § 353.208), unless the narrow § 709(g)(2)/§ 101(d)(6) exclusion applies.

Complex Concepts Simplified

  • USERRA (38 U.S.C. §§ 4301–4335): A federal law protecting service members’ civilian employment rights and benefits. It prohibits discrimination due to service and guarantees reemployment and certain benefits.
  • Dual-status technician (32 U.S.C. § 709): A federal civilian employee of the Department of the Army/Air Force who must also be a National Guard member and wear the uniform while working. They occupy a unique hybrid role.
  • Title 10 vs. Title 32:
    • Title 10: Federal active duty under the President/DoD; subject to the UCMJ; in the federal chain of command.
    • Title 32: State-controlled duty (even if federally funded) under the Governor; state military law applies; not federal active duty.
  • AGR orders (informal term) vs. “Active Guard and Reserve duty” (term of art):
    • AGR orders: Often-used shorthand for active-duty orders issued to Guard members under Title 32; may include convert/revert provisions for Title 10 missions.
    • Active Guard and Reserve duty (10 U.S.C. § 101(d)(6)(A)): A legally defined subset of Title 32 duty—full-time National Guard duty of 180+ consecutive days for organizing/administering/recruiting/instructing/training the reserve components.
  • Military leave (5 U.S.C. § 6323(a)(1)): A federal employment benefit granting eligible employees who are service members 15 days of paid leave per fiscal year, accruing at the start of the fiscal year and accumulating up to 15 days into the next fiscal year if unused.
  • § 709(g)(2) exclusion: Dual-status technicians do not receive § 6323 leave while they are “performing” the specific, defined form of AGR duty in § 101(d)(6)(A) (Title 32 180+ training/administrative duty). This exclusion does not reach Title 10 active duty.
  • Convert/revert orders: Many Title 32 AGR orders include provisions allowing a member to convert to Title 10 for federal missions and then revert to Title 32. Legally, the member’s status changes during the Title 10 period; the statuses are not simultaneous.
  • UCMJ; ADCON; GMAJCOM; CONUS/OCONUS:
    • UCMJ: Uniform Code of Military Justice governing federal active-duty members.
    • ADCON: Administrative control; an aspect of command relationships.
    • GMAJCOM: Gaining Major Command; the higher headquarters the member supports during Title 10 duty.
    • CONUS / OCONUS: Continental United States / Outside Continental United States.

Practical Guidance and Open Questions

  • For technicians: Keep copies of all orders and amendments; track precise start/stop dates of Title 10 conversions; submit timely requests to use accrued § 6323 leave during service (5 C.F.R. § 353.208); document any denials.
  • For Guard employers: Revise policies to:
    • Credit § 6323 leave when technicians are on Title 10 orders;
    • Withhold § 6323 only when technicians are performing Title 32 AGR duty satisfying all elements of § 101(d)(6)(A) (including the 180+ consecutive day requirement and training/administrative purpose);
    • Train staff not to rely on internal instructions where they conflict with statute.
  • Open issues not resolved here:
    • How § 709(g)(2) interacts with § 6323 accrual where a technician spends part of a fiscal year in qualifying 180+ day Title 32 AGR duty—e.g., whether and how accrual is adjusted. The Court did not decide Title 32 scenarios because plaintiffs sought relief only for Title 10 periods.
    • Quantification of back benefits and fees is left to remand.

Conclusion

Christiansen v. Major General Morrell establishes two clear rules in South Dakota (with persuasive force elsewhere):

  • USERRA claimants seeking a benefit available only to military members—like paid military leave under 5 U.S.C. § 6323—need not prove antimilitary animus or a motivating-factor nexus. The entitlement stands on the benefit’s terms.
  • Dual-status technicians accrue 15 days of paid military leave while on Title 10 active duty. The § 709(g)(2) exclusion applies only to the specific, statutorily defined “Active Guard and Reserve duty” under Title 32 for 180+ consecutive days for training/administration—not to Title 10 service.

Textual fidelity and structural coherence drive the Court’s reasoning: internal agency instructions and administrative convenience cannot override statutes; status and authority of service matter, and Title 10 and Title 32 are mutually exclusive in operation. The decision will likely catalyze policy updates across National Guard components, improve compliance with USERRA and § 6323, and reduce improper denials of military-only benefits to those serving on federal active duty.

Case Details

Year: 2025
Court: Supreme Court of South Dakota

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