Mintz, Pashman and Matthews.
Petitioners, full-time employees in the New Jersey Department of Defense, who are required to be members of the New Jersey National Guard as a condition of their employment, seek a declaratory judgment that they are entitled to differential pay pursuant to N.J.S.A. 38:12-4 and 5 as amended by L. 1953, c. 82 (now N.J.S. 38A:4-4 and 5). They also seek relief in the nature of mandamus to compel respondents to request an appropriation for this purpose.
This petition is brought on behalf of 200 men employed in the Department of Defense. They serve as technicians, keeping ready the equipment and facilities of the New Jersey National Guard units to which they belong. They seek payment of the difference between their salaries in their civilian status as technicians and the salaries they received when they were called with their National Guard units to active military duty in the Berlin Crisis of 1961-1962.
It is contended that petitioners have a substantive right to differential pay and that respondents, the Request Officer of the New Jersey Department of Defense and the State Treasurer, have statutory duties in the budget-making process to make provision for this payment.
The authority over the Army and Air National Guard organizations of the states is reserved to the states by the Federal Constitution, except when called into federal service "to execute the Laws of the Union, suppress Insurrections
and repel Invasions." Art. I, Sec. VIII, Cls. 15, 16; 10 U.S.C. §§ 3079, 3495, 8079, 8495; 32 U.S.C. § 101(4). Since 1916 the Federal Government has undertaken an intensive program of aid to the National Guard organizations. National Defense Act of 1916 (39 Stat. 166 et seq.). The United States provides equipment, including vehicles, to the National Guard. 32 U.S.C. § 702(a). Title is retained by the United States, but the states are responsible for care of the equipment and may be required to pay for its negligent loss or damage. 32 U.S.C. § 702(d), § 710(a), (c). A federal statute authorizes the use of funds appropriated to subsidize the National Guard "for the compensation of competent persons to care for material, armament, and equipment" of the National Guard. 32 U.S.C. § 709(a). The statute and regulations require that technicians must be members of the National Guard unit concerned with the equipment, with a few exceptions not here relevant. 32 U.S.C. § 709(b).
The technician program is administered by state officers, and its personnel are appointed, promoted and discharged by state officers. There is a maximum contribution that the United States will make for the salaries of technicians, but the state may pay less or pay more out of its own funds. Betar and Finkelstein, "The National Guard Claims Act," 24 Fed. B.J. 197, 202 (1964). The Controller-General of the United States in a formal decision in 1941 ruled that the technicians are employees of the state and not of the Federal Government, and consequently are not entitled to federal civil service retirement benefits. Technicians have also been denied protection against discharge under federal civil service laws. Anselmo v. Ailes, 235 F. Supp. 203 (E.D.N.Y. 1964), appeal pending. In 1947 technicians in New Jersey were ruled eligible to join the State Employees Retirement System. (They have been treated as eligible for membership in the successor to S.E.R.S., the Public Employees Retirement System. Most of petitioners were members of P.E.R.S. during the period for which they seek differential pay in this litigation.
While petitioners were in federal service in 1961-1962, they were placed on a leave status by the Department of Defense. They were given credit toward retirement for such service by P.E.R.S., and the State paid their pension contributions during such service.) Many states include technicians in their retirement systems. Betar and Finkelstein, op. cit., at p. 203. Recently the United States Supreme Court held that technicians are state employees when their unit is not in active federal service, and declined to hold the United States liable for their negligence, pursuant to the Federal Tort Claims Act. Maryland for Use of Levin v. United States, 381 U.S. 41, 85 S. Ct. 1293, 14 L. Ed. 2 d 205 (1965).
N.J.S.A. 38:12-4 and 5, since before World War II, provided for payment by New Jersey of "differential pay," i.e., the difference between civilian and military pay, for state employees who were members of National Guard units when called into active federal service. During World War II, payment of benefits under these statutes was made to technicians. During the Korean War, however, the Treasury Department raised the question as to the propriety of payments to technicians on the ground that they were not state employees within the meaning of N.J.S.A. 38:12-4 and 5, citing the payment of their salaries through federal aid. This would have frustrated the expectation of the technicians who relied on the World War II precedent. In order to make clear that technicians were entitled to differential pay, an amendment to N.J.S.A. 38:12-5 was added by L. 1953, c. 82. Subsequently, the technicians called into federal service during the Korean War received differential pay.
In 1961 a number of New Jersey technicians were again called into federal service during the crisis which threatened a second blockade of Berlin. The technicians remained on active duty for about 11 months. Despite the precedents established in World War II and the Korean War, and despite the passage of L. 1953, c. 82, the respondents have not taken ...