Military reference books and manuals (2009-2023, Volume 4)

Domestic Operational Law Handbook 2021

and administration of the NIMS.¹² On December 3, 2003, President Bush signed Homeland Security

Policy Directive 8 (HSPD-8), “National Preparedness.” HSPD-8 is a companion to HSPD-5 and

“describes the way Federal departments and agencies will prepare for” incident response.¹³ “To help

ensure the preparedness of the Nation to prevent, respond to, and recover from threatened and actual

domestic terrorist attacks, major disasters, and other emergencies,” President Bush tasked the Secretary

of Homeland Security to, “in coordination with the heads of other appropriate Federal departments and

agencies and in consultation with State and local governments, . . . develop a national domestic all-

hazards preparedness goal.¹⁴ As a result, the DHS published the National Response Framework (NRF)

in January 2008, most recently updated in October 2019.¹⁵

United States Northern Command (USNORTHCOM) was activated on October 1, 2002, which

“marked the first time a single military commander has been charged with protecting the U.S.

homeland since the days of George Washington.”¹⁶ USNORTHCOM’s area of responsibility (AOR)

includes the continental United States, Alaska, Puerto Rico, The Bahamas, and the U.S. Virgin Islands,

and the territorial waters to include the Gulf of Mexico and the Straits of Florida. With the

establishment of USNORTHCOM, the Department of DefenseDefense now has Combatant

Commands whose combined geographic responsibilities cover all States and territories of the United

States.¹⁷ On September 11, 2003, USNORTHCOM reached full operational capability.

USNORTHCOM’s mission statement is:

“United States Northern Command Defends our Homeland - Deters, detects, and defeats threats to the

United States, conducts security cooperation activities with allies and partners, and supports civil

authorities.”¹⁸

This mission statement recognizes the unique dual roles for USNORTHCOM in HD, DSCA, and

Security Cooperation (SC), in addition to standard Geographic Combatant Commander-assigned

¹² Id., para. 14.

¹³ GOVERNMENT PUBLISHING ONLINE, HOMELAND SECURITY PRESIDENTIAL DIRECTIVE 8, DECEMBER 2003 [hereinafter

HSPD-8], available at https://www.gpo.gov/fdsys/pkg/PPP-2003-book2/pdf/PPP-2003-book2-doc-pg1745.pdf (last visited

April 13, 2021).

¹⁴ The December 2003 version of HSPD-8 was replaced by Presidential Policy Directive 8 [hereinafter PPD-8] signed by

President Barack Obama on March 20, 2011, available at https://www.dhs.gov/xlibrary/assets/presidential-policy-directive-

8-national-preparedness.pdf (last visited April 13, 2021).

¹⁵ DEP’T OF HOMELAND SECURITY, NATIONAL RESPONSE FRAMEWORK, October 28, 2019 [hereinafter NRF], available at

https://www.fema.gov/emergency-managers/national-preparedness/frameworks/response (last visited April 13, 2021). The

NRF superseded the National Response Plan (NRP) published in 2005.

¹⁶ A Short History of United States Northern Command, U.S. NORTHERN COMMAND OFFICE OF HISTORY (December 31,

2012),

http://www.northcom.mil/Portals/28/Documents/Supporting%20documents/Historical/NORTHCOM%20History.pdf (last

visited April 13, 2021).

¹⁷ The other Combatant Command with responsibility for the United States is U.S. Indo-Pacific Command

(USINDOPACOM), whose AOR includes Hawaii, Guam, American Samoa, and the Commonwealth of the Northern

Mariana Islands. It is important to note that DSCA operations in these areas fall under the authority USINDOPACOM.

¹⁸ About USNORTHCOM, UNITED STATES NORTHERN COMMAND, http://www.northcom.mil/AboutUSNORTHCOM.aspx

(last visited April 13, 2021). The geographic area of responsibility for USNORTHCOM also contains Mexico, Canada,

Bermuda, and portions of the Caribbean. Id. The exact dimensions of this geographic area are contained in the Unified

Command Plan.

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responsibilities.¹⁹ HD and SC authorities and capabilities are generally beyond the scope of this

Handbook. However, understanding how the Department of Defense and its organizations (such as

USNORTHCOM) fit in the larger emergency and disaster response framework allows for better

comprehension of the DoD’s ability to provide support to civil authorities. Because of

USNORTHCOM’s responsibility for operations in the homeland, it is engaged in nearly constant

liaison with our national leadership and with the Federal agencies that would lead civil support

operations.

B. The Role of the Department of the Defense in Civil Support

Federal military support provided to civil authorities is neither new nor unique to a single service.

DoD support has been long provided support to the States in times of major disaster or emergency.²⁰

During the Reconstruction after the Civil War, U.S. Marshalls called on the Federal military to assist

with maintaining order in the southern States.²¹ In the late Nineteenth Century, the Army played a

direct role in many disaster relief operations including the great Chicago fire, the Johnstown Flood,

and the Charleston, South Carolina earthquake. When called on today, and under the proper authority,

the Department of Defense will continue to fulfill its role in providing support to civil authorities when

necessary and authorized.

Under the control of their State Governor and The Adjutant General (TAG),²² National Guard (NG)

nits are the primary military responders in all civil support operations. The use of Federal forces to

support State and local governments was, and remains, the exception rather than the rule. Federal

forces are generally used only after State and local resources are exhausted or overwhelmed, and

Federal assistance has been requested, normally in writing, by the State’s Governor or delegated

official.

The Department of Defense has unique capabilities and resources to provide support to civil authorities

if necessary. Like the NG, the Department of Defense consists of trained and disciplined personnel

and organizations capable of rapidly responding on short notice to a broad spectrum of emergencies.

Although primarily organized to conduct combat operations abroad, Federal military personnel and

equipment are effectual in domestic disaster relief operations.²³ In these instances, the DoD’s role is

always one of support - civilian authorities retain primary responsibility for domestic operations.²⁴

¹⁹ Duties and assignments for Combatant Commanders are contained in the Unified Command Plan.

²⁰ See U.S. DEP’T OF ARMY, FIELD MANUAL 3-07, STABILITY OPERATIONS (October 2008) [hereinafter FM 3-07].

²¹ Id., para 1-1.

²² In “State status” National Guard personnel are under the control of the particular Governor and The Adjutant General

(TAG) of their particular State. In this context, “State status” includes “State Active Duty (SAD)” and the status

maintained by members of the National Guard under Title 32 of the United States Code. See infra Chapter 3 for further

discussion of National Guard status.

²³ DoDD 3025.18] U.S. DEP’T OF DEFENSE, DIR. 3025.18, DEFENSE SUPPORT OF CIVIL AUTHORITIES (29 Dec. 2010) (19

March 2018) [hereinafter DoDD 3025.18].

²⁴ See STRATEGY FOR HOMELAND DEFENSE AND DSCA, supra note 1, at 9, 14. See also U.S. DEP’T OF DEFENSE, INSTR.

3025.21, DEFENSE SUPPORT OF CIVILIAN LAW ENFORCEMENT AGENCIES Encl. 4 (27 Feb. 2013) (C1, 8 February 2019)

[hereinafter DoDI 3025.21] (noting “[t]he primary responsibility for protecting life and property and maintaining law and

order in the civilian community is vested in State and local governments.”)

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Civil authorities may request Federal assistance, including DoD support, once it becomes clear that

their capabilities will be insufficient or have been exceeded.²⁵

U.S. domestic law, Presidential Decision Directives (PDDs),²⁶ National Security Presidential

Directives (NSPD), Homeland Security Presidential Directives (HSPDs),²⁷ Presidential Policy

Directives (PPDs),²⁸ Executive Orders (EOs), and DoD regulations provide the framework for, and set

limits on, the use of Federal military forces to support civil authorities. While the types of domestic

support operations may vary widely, two forms of statutory restrictions, as well as policy concerns

limit the scope of Federal support provided. Judge advocates must carefully consider fiscal law

constraints²⁹ and Posse Comitatus Act (PCA) limitations.³⁰ From a DoD policy perspective, the “3025

series” of DoD Manuals, Instructions, and Directives are applicable.

The NG, while in State Active Duty (SAD) status, has primary responsibility for providing civil

support to State and local governments.³¹ When Federal forces respond in a support role, they operate

under the direction of a designated Lead Federal Agency (LFA). Federal laws recognize the

importance of interdepartmental and interagency coordination and planning in this area. For example,

the NRF is designed to maximize unity of effort when Federal agencies work together to respond to

domestic emergencies.³²

In summary, in domestic operations, NG units and personnel, in non-Federal status and under the

command of their respective governors, have primary responsibility for providing civil support to local

governments. The Department of Defense provides Federal military assistance only when civil

resources are insufficient, when requested to do so by appropriate civil authorities, and when properly

ordered to do so by DoD officials. Unless otherwise authorized by law, the Federal Government

may only provide support to civil authorities in response to an official request for assistance, and

after State and local government resources have been exhausted or overwhelmed.

C. Defense Support of Civil Authorities (DSCA)

The primary reference for the provision of all DoD support to civil authorities during domestic

operations is DoD Directive (DoDD) 3025.18, Defense Support of Civil Authorities.³³ The

²⁵ See STRATEGY FOR HOMELAND DEFENSE AND DSCA, supra note 1, at 15.

²⁶ The PDD series was the mechanism used by the Clinton administration to promulgate Presidential decisions on national

security matters.

²⁷ In the George W. Bush administration, the directives used to promulgate Presidential decisions on national security

matters are designated National Security Presidential Directives (NSPDs) and those on homeland security matters are

designated Homeland Security Presidential Directives (HSPDs). Unless otherwise indicated, past directives of previous

administrations remain in effect until superseded.

²⁸ The PPD series is a mechanism that the Obama administration uses to promulgate Presidential decisions on national

security matters.

²⁹ See infra Chapter 14.

18 U.S.C. § 1385 (2012). See infra Chapter 4.

³¹ DoDI 3025.21, supra note 24, at 28.

³² NRF, supra note 15.

³³ DoDD 3025.18, supra note 23.

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Department of Defense promulgated DoDD 3025.18, with changes, on March 19, 2018.³⁴ Notably,

DoDD 3025.18 states that DSCA plans shall be compatible with the NIMS and will consider command

and control options that emphasize “unity of effort.”³⁵

DoDD 3025.18 provides the criteria to evaluate all requests for support to civilian authorities.

Domestic operations practitioners refer to these criteria as the “CARRLL” factors.³⁶ Commanders at

all levels should be cognizant of these factors when forwarding a recommendation for Federal military

support through the chain of command.

The CARRLL factors are:

• Cost - Who pays and the impact on DoD budget;

• Appropriateness - Whether it is in the interest of DoD to provide the requested support;

• Readiness - Impact on DoD’s ability to perform its primary mission;

• Risk - Safety of DoD forces;

• Legality - Compliance with the law; and

• Lethality - Potential use of lethal force by or against DoD forces.

DoDD 3025.18 also outlines the roles and responsibilities of each DoD component and establishes

request procedures and approval authorities for each type of domestic support operation. The

Secretary of Defense has reserved approval authority of DoD support for civil disturbances and for

responses to acts of terrorism. Various DoD Directives and Instructions cover specific types of

domestic support authorities and are set out in the respective chapters of this Handbook.

³⁴ DoDD 3025.18 incorporated and canceled DoDD 3025.1 (Military Support to Civil Authorities) and DoDD 3025.15

(Military Assistance to Civil Authorities).

³⁵ Id. at 4.

³⁶ Id.

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CHAPTER 2

NATIONAL FRAMEWORK FOR INCIDENT MANAGEMENT

KEY REFERENCES:

•

Homeland Security Act of 2002, Pub. L. No. 107-296, 116 Stat. 2135 (2002) as amended.

•

Robert T. Stafford Disaster Relief and Emergency Assistance Act, Pub. L. No. 93-288, 42 U.S.C. §

5121, et seq., as amended.

•

Post-Katrina Emergency Management Reform Act of 2006 (PKEMRA), Pub. L. No. 109-295, 120

Stat. 1394 (2006).

•

The Federal Water Pollution Control Act (Clean Water Act), 33 U.S.C. § 1251 et. seq. (1972), as

amended, and the Oil Pollution Act of 1990 (OPA 90) (1991), as amended.

•

Executive Order (E.O.) 12241 - National Contingency Plan (1980), as amended.

•

E.O. 12472 - Assignment of National Security and Emergency Preparedness Telecommunications

Functions (1984), as amended.

•

E.O. 12580 - Superfund Implementation (1987), as amended.

•

E.O. 12656 - Assignment of Emergency Preparedness Responsibilities, (1988), as amended.

•

E.O. 12657 - Federal Emergency Management Agency Assistance in Emergency Preparedness

Planning at Commercial Nuclear Power Plants (1988), as amended.

•

E.O. 12777 - Implementation of Section 311 of the Federal Water Pollution Control Act of

October 18, 1972, as amended, and the Oil Pollution Act of 1990 (1991), as amended.

•

E.O. 13228 - Establishing the Office of Homeland Security and the Homeland Security Council

(2001), as amended.

•

E.O. 13286 - Amendment of Executive Orders, and Other Actions, in Connection with the

Transfer of Certain Functions to the Secretary of Homeland Security (2003).

•

Homeland Security Presidential Directive (HSPD) 15/National Security Presidential Directive

(NSPD) 46 - U.S. Strategy and Policy in the War on Terror (classified directive), March 6, 2006.

•

Presidential Decision Directive (PDD) 63 - Critical Infrastructure Protection, May 22, 1998.¹

•

HSPD-5 - Management of Domestic Incidents, February 28, 2003.

•

HSPD-7 - Critical Infrastructure Identification, Prioritization, and Protection, December 17, 2003.

•

HSPD-8 - National Preparedness, December 17, 2003 and HSPD 8, Annex 1 - National Planning.²

•

PPD-8 - National Preparedness, March 30, 2011.

•

Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA), 42 U.S.C.

§§ 9601 - 9675 (2011).

•

Defense Production Act of 1950, as amended, 50 U.S.C. § 2061 et seq.

•

Department of Defense Directive (DoDD) 3025.18, Defense Support of Civil Authorities (DSCA),

December 29, 2010, incorporating Change 2, March 19, 2018.

¹ Recommended for historical reference. President Bush promulgated HSPD 7 to update and supersede the pre-9/11 PDD-

63 dealing with the protection of critical infrastructure.

² Recommended for historical reference. President Obama promulgated PPD-8 to update and supersede HSPD-8 and

HSPD-8, Annex 1, with the exception of paragraph 44 of HSPD-8 Annex 1, which remains in effect. Individual plans

developed under HSPD-8 and HSPD-8 Annex 1 remain in effect unless otherwise replaced or rescinded.

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• Department of Defense Instruction (DoDI) 3025.22, The Use of the NG for DSCA, July 26, 2013,

incorporating Change 1, May 15, 2017.

• Chief National Guard Bureau Instruction (CNGBI) 3000.04, NG Bureau Domestic Operations,

January 24, 2018.

• National Response Framework (NRF), Fourth Edition, October 2019.

• National Mitigation Framework (NMF), Second Edition, June 2016.

• National Prevention Framework (NPF), June 2016.

• National Disaster Recovery Framework, (NDRF), Second Edition, June 2016.

• National Incident Management System (NIMS), October 2017.

• National Oil and Hazardous Substances Pollution Contingency Plan, 40 C.F.R. § 300.

• ADP 3-28, Defense Support of Civil Authorities, July 2019.

A. The Federal Response Structure

In the 33 years since 1988, when President George H.W. Bush promulgated Executive Order (E.O.)

12656, the Federal Government has significantly changed its approach to preventing, preparing for,

and responding to major domestic incidents. This chapter addresses the Federal Government’s current

system for domestic all-hazards incident management, including the latest significant changes to the

National Preparedness System (NPS) promulgated in 2013, as well as the vital role of the Stafford Act

as the primary authority for the use of Federal resources to assist State and local governments during

major disasters and emergencies.

1. E.O. 12656: Emergency Preparedness and Response Responsibilities

E.O. 12656, as amended, assigns national security emergency preparedness responsibilities to Federal

departments and agencies, as an extension of their regular department or agency missions. It identifies

the primary and support functions of the departments and agencies during any national emergency of

the United States in order to develop plans and capabilities to execute those functions. E.O. 13228,

establishing the Office of Homeland Security and Homeland Security Council,³ amended E.O. 12656

to account for the responsibilities of the new department within the functional and legal structure of

emergency preparedness. E.O. 12656 and E.O. 13228 direct what is now the Department of Homeland

Security (DHS) to have primary responsibility for coordinating the efforts of, among other things,

Federal emergency assistance.⁴

As part of preparedness, E.O. 12656 mandates that the heads of Federal agencies plan for continuity of

Government in the event of a national security emergency and plan for the mobilization of agency

alternative resources. In assigning areas of responsibility for domestic preparedness, E.O. 12656

provides the foundation for the former Federal Response Plan (FRP), now superseded by the NRF

under the National Preparedness System (NPS).

³ Exec. Order No. 13228, 66 Fed. Reg. 51812 (Oct. 10, 2001).

⁴ Exec. Order No. 12656, 3 C.F.R. 585 (1988); see also Exec. Order No. 12148, 3 C.F.R. 412 (1979), which transferred to

FEMA responsibility for coordinating Federal response to civil emergencies at the regional and national levels.

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Table 2-1 highlights some of the major areas of responsibility for several of the agencies identified in

E.O. 12656, as amended by EO 13286.⁵

AGENCY

LIST OF SELECT AGENCY ROLES AND RESPONSIBILITIES

Lead Responsibilities: Ensure continuation of agricultural production, food processing,

storage, and distribution; Oversee use and handling of agricultural commodities and land

Department of

exposed to or affected by hazardous agents.

Agriculture

Support Responsibilities: Assist Secretary of Defense in formulating and carrying out

plans for stockpiling strategic and critical agricultural materials.

Lead Responsibilities: Ensure military preparedness and readiness to respond to

national security emergencies; Develop and maintain, in cooperation with the heads of

other departments and agencies, national security emergency plans, programs, and

mechanisms to ensure effective mutual support between and among the military, civil

government, and the private sector; Develop and maintain damage assessment

capabilities and assist the Director of the Federal Emergency Management Agency and

the heads of other departments and agencies in developing and maintaining capabilities

to assess attack damage and to estimate the effects of potential attack on the Nation; In

Department of

consultation with the Secretaries of State and Energy, the Director of the Federal

Defense

Emergency Management Agency, and others, as required, develop plans and capabilities

for identifying, analyzing, mitigating, and responding to hazards related to nuclear

weapons, materials, and devices.

Support Responsibilities: Development of plans and programs to support national

mobilization; Planning for the protection, evacuation, and repatriation of United States

citizens in threatened areas overseas; Coordinate with the Director of the Federal

Emergency Management Agency the development of plans for mutual civil-military

support during national security emergencies. .

Lead Responsibilities: Identify, analyze, assess, and mitigate hazards from nuclear

weapons, materials, and devices; All emergency response activities pertaining to DOE

Department of

nuclear facilities, to include recapture of special nuclear materials.

Energy

Support Responsibilities: Advise, assist, and assess the radiological impact associated

with national security emergencies.

Lead Responsibilities: Mobilize health industry and allocate resources to provide health,

mental health, and medical services to civilian and military claimants; reduce or

Department of Health

eliminate adverse health and mental health effects produced by hazardous agents;

and Human Services

Provide emergency services, e.g. social services, family reunification, mortuary services.

Support Responsibilities: Support Secretary of Agriculture in development of plans

related to national security agricultural health services.

Lead Responsibilities: Advise the National Security Council on issues of national

security emergency preparedness, including mobilization preparedness, civil defense,

continuity of government, and technological disasters; Coordinate with the other

Department of

agencies and State and local governments to implement national security emergency

Homeland Security

preparedness policies.

Support Responsibilities: Prepare plans and programs, to include plans and capabilities

related to nuclear emergencies; Promote programs for Federal buildings and installations.

⁵ Exec. Order No. 13286, 68 Fed. Reg. 10619 (Mar. 5, 2003) transferred key functions of FEMA to DHS. Note that Exec.

Order No. 13603, 77 Fed. Reg. 16651 (Mar. 16, 2012) revoked Sections 401(3)-(4) of Exec. Order No. 12656.

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Lead Responsibilities: Interdict and respond to terrorism incidents; advise the President

regarding national security emergency powers, plans, and authorities; Coordinate

domestic law enforcement activities related to national security emergency preparedness,

Department of Justice

respond to civil disturbances that may result in a national security emergency.

Support Responsibilities: Support the intelligence community in the planning of its

counter-intelligence and counter-terrorism programs.

Lead Responsibilities: Meet essential transportation needs; Provide direction to all

modes of civil transportation; Coordinate with State and local agencies in the

Department of

management of all publicly-owned highways, roads, bridges, tunnels; assist with

Transportation

maritime and port control.

Support Responsibilities: Assist Secretary of Energy in the transportation of energy

materials.

Table 2-1. Partial List of Agency Roles and Responsibilities during a National-Level Emergency

2. The Homeland Security Act

The Homeland Security Act of 2002 represented a watershed moment in the manner in which the

The Act established the

Federal Government organizes to respond to national level incidents.⁶

Department of Homeland Security, and consolidated the consequence management missions, assets,

The primary

and personnel of numerous Federal departments and agencies into a single department.⁷

missions of the Department of Homeland Security include: preventing terrorist attacks within the

United States, reducing the vulnerability of the United States to terrorism, and minimizing the damage

and assisting in the recovery from terrorist attacks that occur within the United States.⁸ It is comprised

of various directorates and components including the U.S. Coast Guard, Customs and Border

Protection, U.S. Citizenship and Immigration Services, U.S. Immigration and Customs Enforcement,

U.S. Secret Service, the Federal Emergency Management Agency (FEMA), the Transportation

Security Administration, and the Federal Law Enforcement Training Center.

FEMA maintains responsibility for “[h]elping people before, during, and after disasters.”⁹ Activities

pursuant to this responsibility include managing responses; directing the strategic response assets

assigned to the Department of Homeland Security; overseeing the Metropolitan Medical Response

System; and coordinating other Federal response resources in the event of a terrorist attack or major

disaster. The Homeland Security Act also directed the development of a National Incident

Management System (NIMS) to integrate the Federal, State, and local government response to terrorist

attacks, and consolidate existing Federal Government emergency response plans into a single,

coordinated National Response Plan (NRP).¹⁰

⁶ The Homeland Security Act of 2002, Pub. L. No. 107-296, 116 Stat. 2135 (2002) as amended [hereinafter HSA].

⁷ Id. § 101. The Act also established the Department of Homeland Security as the focal point for “natural and manmade

crises and emergency planning.” See§ 101(b)(1)(D).

⁸ Id. § 101(b).

⁹ FEMA mission statement as stated on the FEMA website located at https://www.fema.gov/about-agency (last visited on

Mar. 25, 2021).

¹⁰ HSA, supra note 6, § 502. As explained below, the National Response Framework, which is now part of the National

Preparedness System, superseded the NRP.

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In sum, the Homeland Security Act served as the foundation for the Government to reorganize and

consolidate incident management functions, assets, and personnel under a single Department. Further,

it served as the legal impetus for a revised approach to incident management, later set forth in

Homeland Security Presidential Directive 5 (HSPD-5), as discussed below.

3. HSPD-5

HSPD-5, “Management of Domestic Incidents,” established a new paradigm for Federal emergency

management.¹¹ It centers on the need for all levels of government across the nation to have a single,

unified approach toward managing domestic incidents. Pursuant to the Homeland Security Act of

2002, HSPD-5 tasked the Secretary of Homeland Security to develop and administer a National

Response Plan (now replaced by the NRF) that would integrate Federal Government domestic

prevention, preparedness, response, and recovery plans into one all-discipline, all-hazards plan. It also

tasked the Secretary of Homeland Security to develop and administer a NIMS that would unify

Federal, State, and local government efforts to prepare for, respond to, and recover from domestic

events regardless of cause, size, or complexity. The NRF and NIMS intend to provide the structure

and mechanisms for establishing national level policy and operational direction regarding Federal

support to State and local incident managers.

HSPD-5 also reaffirmed the Secretary of Homeland Security’s responsibility as the Principal Federal

Official (PFO) for domestic incident management. HSPD-5 tasked the Secretary of Homeland

Security with coordinating the Federal Government’s resources in response to, or recovery from,

terrorist attacks, major disasters, or other emergencies. This coordination responsibility exists when

any one of the following four conditions applies: (1) a Federal department or agency acting under its

own authority has requested the assistance of the Secretary; (2) the resources of State and local

authorities are overwhelmed and Federal assistance has been requested by the appropriate State and

local authorities; (3) more than one Federal department or agency has become substantially involved in

responding to the incident; or (4) the Secretary has been directed by the President to assume

responsibility for managing the domestic incident.¹² Table 2-2, seen below, summarizes the roles and

responsibilities established by HSPD-5.

HSPD-5 also eliminates the previous distinction, established in Presidential Decision Directive 39,

between crisis management and consequence management, treating the two “as a single, integrated

function, rather than as two separate functions.”¹³ Under the old FRP, the Attorney General was the

lead Federal official for the Government’s response until the crisis management phase of a response

was over. Now, under the NRF, the Secretary of Homeland Security remains the lead Federal official

for the duration of the period involving Federal assistance. Even though HSPD-5 erased the distinction

between crisis management and consequence management, it reaffirms the Attorney General’s

authority as the lead official for conducting criminal investigation of terrorist acts or terrorist threats.¹⁴

¹¹ Homeland Security Presidential Directive 5, Management of Domestic Incidents (Feb. 28, 2003) [hereinafter HSPD-5],

available at http://www.gpo.gov/fdsys/pkg/PPP-2003-book1/pdf/PPP-2003-book1-doc-pg229.pdf (last visited on March

25, 2021).

¹² Id.

¹³ Id.

¹⁴ Id.

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Departments & Agencies

Roles and Responsibilities Established by HSDP-5

Sec. 3. Declares that U.S. Government policy is to treat crisis management and

Federal Government

consequence management as a single, integrated function, rather than two separate

functions.

Sec. 4. Assigns Secretary of Homeland Security responsibility for coordinating Federal

operations within the U.S. to prepare for, respond to, and recover from terrorist attacks,

Secretary of Homeland

major disasters, and other emergencies.

Security

Sec. 15. Tasks the Secretary of Homeland Security to develop and administer a

National Incident Management System (NIMS).

Sec. 16. Tasks the Secretary of Homeland Security to develop and administer a

National Response Plan, or NRP (now the NRF).

Attorney General

Sec. 8. Reaffirms the Attorney General’s role as having lead responsibility for criminal

investigations of terrorist acts or terrorist threats.

Table 2-2. Roles and Responsibilities Established by HSPD-5

4. Presidential Policy Directive-8 (PPD-8)

On March 30, 2011, President Obama issued PPD-8 to update and replace HSPD-8 and HSPD-8,

Annex 1, National Planning. HSPD-8, Annex 1, was originally issued in 2007 to “further enhance the

preparedness of the United States by formally establishing a standard and comprehensive approach to

national planning.”¹⁵ PPD-8 complements HSPD-5, which remains in effect. PPD-8 aims at:

“strengthening the security and resilience of the United States through systematic

preparation for the threats that pose the greatest risk to the security of the Nation,

including acts of terrorism, cyber attacks, pandemics, and catastrophic natural

disasters. Our national preparedness is the shared responsibility of all levels of

government, the private and nonprofit sectors, and individual citizens.”¹⁶

PPD-8 specifies that the Secretary of Homeland Security is responsible for developing the National

Preparedness Goal (discussed below) and coordinating the domestic all-hazards preparedness efforts of

all executive departments and agencies, in consultation with State, local, tribal, and territorial

governments, non-governmental organizations, private-sector partners, and the general public. The

directive further states that the heads of all executive departments and agencies with roles in

prevention, protection, mitigation, response, and recovery are responsible for national preparedness

efforts, including department-specific operational plans, as needed, consistent with their statutory roles

and responsibilities. PPD-8 also specifies that nothing in the directive shall limit the authority of the

Secretary of Defense with regard to the command and control, planning, organization, equipment,

¹⁵ HOMELAND SECURITY PRESIDENTIAL DIRECTIVE 8 ANNEX 1, Purpose (2007) [hereinafter HSPD-8 Annex 1], available at

https://www.dhs.gov/hspd-8-annex-1(last visited March 25, 2021).

¹⁶ PRESIDENTIAL POLICY DIRECTIVE 8, NATIONAL PREPAREDNESS (Mar. 30, 2011) [hereinafter PPD-8], available at

http://www.dhs.gov/presidential-policy-directive-8-national-preparedness (last visited March 25, 2021).

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training, exercises, employment, or other activities of DoD forces, or the allocation of DoD

resources.¹⁷

HSPD-8, Annex 1 required the development of National Planning Scenarios.¹⁸ Consequently, the

Homeland Security Council developed fifteen scenarios depicting “a diverse set of high-consequence

threat scenarios of both potential terrorist attacks and natural disasters.”¹⁹ USNORTHCOM

subsequently developed CONPLANS that address each of the scenarios where DoD support is

necessary. USNORTHCOM must grant permission to view these CONPLANS, and any requests

should be directed via the chain of command to USNORTHCOM .²⁰ These and other individual plans

developed under HSPD-8 and Annex 1 remain in effect until rescinded or otherwise replaced.

5. PPD-8 and the National Preparedness System (NPS)

PPD-8 specifically directed the development of a National Preparedness Goal (NPG) that identifies

core capabilities necessary for preparedness, and the development of a NPS to guide activities that will

enable the Nation to achieve the NPG.²¹ PPD-8 states that NPS shall include guidance for planning,

organization, equipment, training, and exercises to build and maintain domestic capabilities, and shall

provide a whole nation approach for building and sustaining a cycle of preparedness activities over

time. PPD-8 states that the NPS shall include five integrated National Planning Frameworks covering

the mission areas of Prevention, Protection, Mitigation, Response, and Recovery. These five

frameworks set the strategy and doctrine for delivering the 32 core capabilities identified in the NPG

document and “describe how the whole community works together to achieve the National

Preparedness Goal.”²² PPD-8 further directed the frameworks be built on scalable, flexible, and

adaptable coordinating structures to align key roles and responsibilities to deliver the necessary

capabilities.²³

6. National Response Framework (NRF) History and Organization

The NRF predates the current NPS five-framework system. On March 22, 2008, the first NRF became

effective and superseded the National Response Plan. It established a comprehensive, national, all-

hazards approach to domestic incident management across a spectrum of activities. The NRF was

updated in 2013. It implements the new requirements and terminology of PPD-8, yet reiterates the

¹⁷ Id.

¹⁸ HSPD-8 Annex 1, supra note 16, para. 34.

¹⁹ DHS, NATIONAL PREPAREDNESS GUIDELINES, (September 2007), available at

https://www.fema.gov/pdf/emergency/nrf/National_Preparedness_Guidelines.pdf (last visited April 8, 2021).

²⁰ USNORTHCOM CONPLANs remain in force and effect until rescinded or replaced, as specified in PDD-8.

²¹ The National Preparedness Goal (NPG) is “[a] secure and resilient Nation with the capabilities required across the whole

community to prevent, protect against, mitigate, respond to, and recover from the threats and hazards that pose the greatest

risk.” The NPG document identifies several core capabilities necessary to achieving the goal. The core capabilities are

grouped into the five mission areas of prevention, protection, mitigation, response, and recovery. DHS, NATIONAL

PREPAREDNESS GOAL (Sept. 2015), available at http://www.fema.gov/national-preparedness-goal.

²² DHS, OVERVIEW OF THE NATIONAL PLANNING FRAMEWORKS (June 2016) 1, available at

https://www.fema.gov/national-planning-frameworks (last visited April 8, 2021).

²³ PPD-8, supra note 16.

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concepts utilized in the 2008 version.²⁴ Most recently, the “fourth edition of the NRF reorganizes and

streamlines the previous version of the NRF, expands principles and concepts to better integrate

government and private sector response efforts, and introduces the community lifelines concept and

terminology."²⁵

The NRF organizes governmental response to natural and manmade disasters and incidents occurring

in the United States, the District of Columbia, and U.S. territories and possessions. It builds upon and

complements the NIMS.²⁶ The NRF is designed to be used by the whole community, since engaging

the whole community is essential for the Nation’s success in maintaining resilience and preparedness.

The NRF is always in effect, and portions of it can be implemented at any time. Selective

implementation of NRF structures allows for a scaled response and an appropriate level of

coordination for each incident.²⁷

The NRF is comprised of the base document, Emergency Support Functions (ESFs), Support Annexes,

and Incident Annexes.

• Base Document. The Base Document contains background on the scope of the NRF, describes

roles and responsibilities of both public and private entities at the local, State, and Federal level,

and specifies authorities and best practices for managing incidents and coordinating response

entities.²⁸

• ESF Annexes. The ESF Annexes are Federal coordinating structures that group resources and

capabilities into functional areas that are most frequently needed in a national response.²⁹ There

are fifteen ESFs in the NRF (see Table 2-3).

• Support Annexes. The Support Annexes describe other mechanisms by which support is

organized among private sector, NGO, and Federal partners. The support annexes describe the

essential supporting processes and considerations common to most incidents.³⁰ The support annex

²⁴ DHS, NATIONAL RESPONSE FRAMEWORK, Third Edition (June 2016).

²⁵ DHS, NATIONAL RESPONSE FRAMEWORK, Fourth Edition (October 2019) 1, [hereinafter NRF], available at

https://www.fema.gov/pdf/emergency/nrf/National_Preparedness_Guidelines.pdf (last visited April 20, 2021).

²⁶ DHS, NATIONAL INCIDENT MANAGEMENT SYSTEM (Oct. 2017), available at

https://www.fema.gov/sites/default/files/2020-07/fema_nims_doctrine-2017.pdf [hereinafter NIMS] (last visited April 20,

2021). The NIMS is a nationwide template enabling government and nongovernmental responders to respond to all

domestic incidents. NIMS provides the structure and mechanisms for national-level policy and operational coordination for

domestic incident management. NIMS does not alter or impede the ability of Federal, State, local, or tribal departments

and agencies to carry out their specific authorities. NIMS assumes that incidents are typically managed at the lowest

possible jurisdictional and organizational levels, and in the smallest geographical areas feasible. There is further discussion

on NIMS below.

²⁷ NRF, supra note 25, at 4-5.

²⁸ Id.

²⁹ Id. at 3.

³⁰ FEMA, Support Annexes, available at https://www.fema.gov/emergency-managers/national-

preparedness/frameworks/response#support (last visited April 18, 2021).

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topics are: financial management, international coordination, public affairs, tribal relations,

volunteer and donations management, and worker safety and health.³¹

• Incident Annexes. The incident annexes describe the unique response aspects of incident

categories. They describe specialized response teams and resources, incident specific

responsibilities, and other considerations specific to a particular scenario. The address the

following events: Biological Incident, Catastrophic Incident, Cyber Incident, Food and Agriculture

Incident, Mass Evacuation Incident, Nuclear/Radiological Incident, and Terrorism Incident Law

Enforcement and Investigation. These documents are now the annexes to the Response Federal

Interagency Operational Plans (FIOP) rather than as supplements to the NRF.³²

a. NRF Roles and Responsibilities. The NRF specifies the roles and responsibilities of the

following parties:

• Individuals, Families, Households, and Communities;

• Non-governmental Organizations;

• Private Sector Entities;

• Local Governments including the Chief Elected/Appointed Official, Emergency Manager,

and Department or Agency Heads;

• State Governments including the Governor, State Homeland Security Advisor, State

• Emergency Management Director, and NG;

• Tribal/Territorial/Insular Area Leaders;

• Secretary of Homeland Security;

• FEMA Administrator;

• Attorney General;

• Secretary of Defense;

• Secretary of State; and

• Director of National Intelligence.

b. Core Capabilities

The core capabilities provide a common vocabulary describing the significant functions that must be

maintained and executed across the whole community to achieve the goal of a “secure and resilient

nation.”³³ Response core capabilities generally must be accomplished in incident management, but

even though core capabilities are aligned with a mission area, actions in one core capabilities inform

core capabilities across mission areas.³⁴ Points of intersection between the response mission area and

other mission areas can be found in the NRF.³⁵

³¹ NRF, supra note 25, at 3.

³² DHS, RESPONSE FEDERAL INTERAGENCY OPERATIONAL PLAN, Second Edition (August 2016) 3, [hereinafter FIOP],

available at https://www.fema.gov/sites/default/files/documents/fema_response-fiop.pdf (last visited April 24, 2021).

³³ NRF, supra note 25, at 12.

³⁴ Id.

³⁵ Id. at 13-15.

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c. NRF Coordinating Structures and Integration

Coordinating structures are used to aid preparedness and response at all governmental levels and

among the private sector, communities, and non-governmental entities. The structures help organize

and measure response community capabilities, establish and improve relationships, and foster

coordination prior to and following an incident. Examples of local coordinating structures include

local emergency planning committees (LEPCs) and community emergency response teams (CERTs).

State coordinating structures leverage capabilities and resources across the State. Examples include

State Emergency Response Commissions (SERCs), which manage State LEPCs, and State Disaster

Planning Advisory Committees. Private sector coordinating structures include NGOs and industry

trade groups, such as the American Pilots’ Association (a national association of maritime pilots of

commercial vessels). These entities often serve as a conduit to government coordinating structures.³⁶

(1) Federal Coordinating Structures

The National Security Council (NSC). The NSC is the principal policy body for national security

policy issues requiring Presidential determination, and it advises and assists the President in

integrating all aspects of national security policy as it affects the United States. Along with its

subordinate committees, the NSC is the President’s primary method for coordinating Executive branch

departments and agencies in the development and implementation of national security policy.³⁷

Emergency Support Functions (ESFs). The Federal Government organizes its response resources

and capabilities under the ESF construct. ESFs are groups of organizations that work together to

support a response. The Federal ESFs are the primary (but not exclusive) response coordinating

structures at the Federal level.³⁸ Table 2-3 lists the ESFs and the designated lead Federal agencies

for each function.³⁹

³⁶ Id. at 15.

³⁷ Id. at 25.

³⁸ Id. at 21.

³⁹ Id. at 21-22.

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ESF #

ESF

ESF Coordinator

Transportation

Department of Transportation

Department of Homeland Security/National Communications

Communications

System

Public Works and Engineering

Department of Defense/U.S. Army Corps of Engineers

Department of Agriculture/U.S. Forest Service/U.S. Fire

Firefighting

Administration (DHS/FEMA)

Information and Planning

Department of Homeland Security/FEMA

Mass Care, Emergency Assistance,

Temporary Housing, and Human

Department of Homeland Security/FEMA

Services

Logistics

General Services Administration and DHS/FEMA

Public Health and Medical Services

Department of Health and Human Services

Search and Rescue

Department of Homeland Security/FEMA

Oil and Hazardous Materials Response

Environmental Protection Agency

Agriculture and Natural Resources

Department of Agriculture

Energy

Department of Energy

Public Safety and Security

Department of Justice/ATF

Cross-Sector Business and

Department of Homeland Security/Cybersecurity and

Infrastructure

Infrastructure Security Agency

External Affairs

Department of Homeland Security

Table 2-3. Emergency Support Functions Specified in the NRF

ESF Coordinators. ESF Coordinators oversee the preparedness activities for a particular ESF.

Specific responsibilities include maintaining contact with ESF primary and support agencies through

meetings and other interactions, ensuring the ESF is engaged in appropriate planning and preparedness

activities, and coordinating efforts with corresponding NGOs, private entities, and local, State, and

Federal partners.⁴⁰

ESFs Primary and Support Agencies. Primary agencies have numerous ESF responsibilities

including (but not limited to) orchestrating support within their functional areas for the appropriate

response core capabilities, obtaining assistance from support agencies, managing Stafford Act mission

assignments and coordinating resources needed for mission assignments, planning for incident

management, maintaining trained personnel to support interagency response teams, and coordinating

resources resulting from mission assignments. Support agency responsibilities include (but are not

limited to) providing input to periodic readiness assessments, participating in planning for incident

management, and coordinating resources needed for mission assignments.⁴¹

⁴⁰ Id.

⁴¹ Id. at 38.

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ESF activation. Activation can be selectively accomplished by FEMA or as directed by the Secretary

of Homeland Security to support response activities for both Stafford Act and non-Stafford Act events.

Note, however, that not all incidents needing Federal support require ESF activation. When

departments or agencies are activated as part of ESF activation, they may assign resources at the

headquarters, regional, or incident level. Through the Stafford Act and in accordance with 6 U.S.C. §

741(4) and § 753(c), FEMA may issue mission assignments at all levels and across the ESFs to obtain

resources from Federal entities.⁴²

Mission Assignments. Mission assignments represent the practical and operational application of

ESFs, through the FEMA organizational structure, to executive branch departments and agencies. A

mission assignment is by definition a “[w]ork order issued to a Federal agency by the Regional

Administrator, Assistant Administrator for the Disaster Operations Directorate, or Administrator,

directing completion by that agency of a specified task and citing funding, other managerial controls,

and guidance.”⁴³ FEMA uses Mission assignments to task other Federal departments and agencies to

provide direct assistance during emergencies and disasters. Mission assignments are used to reimburse

Federal entities as well. The mission assignment process has been expanded to include Pre-Scripted

Mission Assignments (PSMAs), which are prepared in advance to facilitate a more rapid response and

standardize the process of developing mission assignments.⁴⁴ Mission assignments can be issued from

three FEMA-managed entities: Joint Field Offices (JFOs), Regional Response Coordination Centers

(RRCCs), and the National Response Coordination Center (NRCC).⁴⁵

(2) Federal Response Operational Coordinating Structures/Personnel and State

Response Entities

The following are several of the key NRF operational coordinating structures and personnel used to

manage emergencies and disasters. Several of these terms are derived from NIMS, which is discussed

further below.

Local/State Emergency Operations Center (EOC). The location at which an effected municipal or

State government coordinates the information and resources necessary to support the local or State

incident management activities.⁴⁶

Incident Command Post (ICP). The field location at which the primary tactical-level, scene incident

command functions are performed. The ICP may be co-located with the incident base or other incident

⁴² Id. at 22.

44 C.F.R. § 206.2(a)(18) (2017). “Administrator” refers to FEMA Administrators. See 44 C.F.R. § 206.2(a)(18) (2017).

⁴⁴ FEMA, PRE-SCRIPTED MISSION ASSIGNMENTS: FACT SHEET (2009), available at

http://www.fema.gov/txt/media/factsheets/2009/dod_pmsa.txt (last visited April 18, 2021).

⁴⁵ U.S. COAST GUARD, COMMANDANT INSTRUCTION 3006.1, FEDERAL EMERGENCY MANAGEMENT AGENCY (FEMA)

MISSION ASSIGNMENTS: OPERATIONAL ACCEPTANCE AND EXECUTION para. 6.a(1) (13 Aug. 2012).

⁴⁶ NRF, supra note 25, at 16-17.

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facilities.⁴⁷ The Incident Commander or Unified Command (in the event of a multi-agency or multi-

jurisdictional response) is located at the ICP.

Area Command (Unified Area Command). An organization established to oversee the management

of multiple incidents that are being handled by separate ICPs, or to oversee the management of a

complex incident dispersed over a large area, and to broker critical resources. The Area Command

does not have operational responsibility; that authority resides with the Incident Commander. The

Area Command can become a Unified Area Command when incidents are multi-jurisdictional or

involve multiple agencies.⁴⁸

National Operations Center (NOC). In the event of a major disaster or emergency declaration, the

NOC acts as the principal operations center for DHS, coordinating and integrating information from

NOC components to provide situational awareness for the Federal Government. Additionally, the

NOC serves as the national fusion center, collecting information on threats and hazards across the

entire integrated national preparedness system.⁴⁹

National Response Coordination Center (NRCC). The NRCC is a multiagency coordination center

located at FEMA headquarters. When activated, its staff coordinates overall Federal support for major

disasters and emergencies. FEMA maintains the NRCC as a component of the NOC for incident

support operations.⁵⁰

National Infrastructure Coordinating Center (NICC). The NICC monitors the Nation’s critical

infrastructure and key resources on an ongoing basis. During an incident, the NICC provides a

coordinating forum to share information across infrastructure and key resource sectors. It is both an

operational component of the DHS National Protection and Programs Directorate and a watch

operations element of the NOC.⁵¹

Strategic Information and Operations Center (SIOC). The SIOC is the FBI’s worldwide EOC. It

maintains situational awareness over threats and provides FBI headquarters, field offices, and overseas

legal attaches with timely notification of strategic information. It shares information with EOCs at all

other levels of government. It provides command, control, and communications connectivity and a

common operating picture for managing FBI responses worldwide. In the event of an incident, the

SIOC establishes the headquarters command post and develops connectivity to field command posts

and Joint Operations Centers (discussed further below). ⁵²

⁴⁷ FEMA, INCIDENT COMMAND SYSTEM TRAINING: ICS GLOSSARY, available at:

https://training.fema.gov/emiweb/is/icsresource/assets/glossary%20of%20related%20terms.pdf (last visited April 18,

2021).

⁴⁸ Id.

⁴⁹ NRF, supra note 25, at 24.

⁵⁰ Id.

⁵¹ DHS, National Infrastructure Coordinating Center, available at http://www.dhs.gov/national-infrastructure-

coordinating-center (last visited April 18, 2021).

⁵² NRF, supra note 25, at 25.

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Joint Field Office (JFO). The JFO is the primary Federal incident management field structure. It is a

temporary facility established locally to coordinate Federal, State, tribal, and local governments, as

well as private sector and non-governmental organizations, with primary responsibility for response

and recovery. The JFO is organized and managed in a manner consistent with NIMS principles. The

JFO uses the Incident Command System (ICS) structure but does not manage on-scene operations.

Instead, the JFO provides support to on-scene efforts and conducts broader support operations that

extend beyond the incident site.⁵³

Unified Coordination Group (UCG). This group is comprised of senior leaders from Federal and

State interests, and in certain circumstances tribal governments, local jurisdictions, and the private

sector. UCG members must have significant jurisdictional authority and responsibility over the

response at issue. The composition will vary depending on the type and scope of incident. The UCG

focuses on the JFO mission - not on managing on-scene operations, but providing support to those

operations. When incidents affect multiple jurisdictions or the entire nation, multiple JFOs and UCGs

may be established.⁵⁴

Unified Coordination Staff (UCS). The UCS is led by the UCG. Personnel from State and Federal

departments and agencies and other entities (including the private sector and non-governmental

organizations) make up the UCS and may be assigned to work at various facilities (the JFO, staging

areas, field offices, etc.).⁵⁵

Joint Operations Center (JOC). The JOC is the focal point for all investigative law enforcement

activities during a terrorist or other significant criminal incident. The JOC is managed by the FBI

Special Agent in Charge (SAC) (also known as the SFLEO in an incident, as described below). It

becomes a component of the JFO when the JFO is established.⁵⁶

Regional Response Coordination Center (RRCC). FEMA maintains an RRCC in each of its 10

regional offices (the regional offices coincide with the 10 FEMA Regions). When activated, RRCC’s

are multi-agency coordination centers staffed in anticipation of or in response to an incident. They

operate under the direction of the FEMA Regional Administrator. The RRCC staff coordinates

response efforts and maintains connectivity with FEMA headquarters, State EOCs, and other Federal

and State coordination centers. The UCG will assume responsibility for coordinating Federal response

activities at the incident level once established, freeing the RRCC to address other incidents.⁵⁷

Principal Federal Official (PFO). By Federal law and by Presidential directive, the Secretary of

Homeland Security is the PFO for coordination of all domestic incidents requiring multiagency Federal

response. The Secretary may elect to designate a single field representative to serve as his or her

⁵³ NIMS, supra note 26, at 65.

⁵⁴ NRF, supra note 25, at 19.

⁵⁵ Id.

⁵⁶ DHS, JOINT FIELD OFFICE ACTIVATION AND OPERATIONS: INTERAGENCY INTEGRATED STANDARD OPERATING

PROCEDURE, VERSION 8.3 (April 2006) 10 [hereinafter JFO SOP], available at:

http://www.fema.gov/pdf/emergency/nrf/NRP_JFO_SOP.pdf (last visited April 18, 2021).

⁵⁷ NRF, supra note 25, at 23.

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primary representative to ensure consistency of Federal support and the overall effectiveness of the

Federal incident management.⁵⁸

Federal Coordinating Officer (FCO). The FCO is a senior FEMA official who manages and

coordinates Federal resource support activities related to Stafford Act disasters and emergencies.⁵⁹

The President appoints an FCO after a recommendation by the FEMA Administrator and the Secretary

of Homeland Security. The FCO executes Stafford Act authorities, including committing FEMA

resources and giving mission assignments to other Federal departments and agencies. The role of the

FCO in a Stafford Act response is discussed further below.

Senior Federal Law Enforcement Official (SFLEO). The SFLEO is the senior law enforcement

official from the agency with primary jurisdictional responsibility as directed by statute, Presidential

directive, existing Federal policies, and/or the Attorney General. The SFLEO directs the intelligence

and investigative law enforcement operations related to the incident and supports the law enforcement

component of the on-scene Unified Command. In the event of a terrorist incident, this official will

normally be the FBI Senior Agent-in-Charge (SAC).⁶⁰

Federal Resource Coordinator (FRC). The FRC manages Federal resource support activities

related to non-Stafford Act incidents when Federal-to-Federal support is requested from DHS by

another Federal agency. The FRC is responsible for coordinating the timely delivery of resources to

the requesting agency. Requesting agencies will appoint a senior official to work in coordination

with the FRC as part of the UCG.⁶¹

Governor’s Authorized Representative (GAR). The GAR, who is in most cases also the State

Coordinating Officer (SCO) under a Stafford Act response, represents the Governor of the State.

The GAR/SCO is most often a senior leader in the State’s emergency response organization and is

a member of the UCG.⁶²

Defense Coordinating Officer (DCO) . The DCO serves as DoD’s single point of contact at the JFO

for the UCG. With few exceptions, DSCA requests originating at the JFO will be coordinated with

and processed through the DCO. The DCO may have a Defense Coordinating Element (DCE)

consisting of a staff and military liaison officers in order to facilitate coordination and support to

activated Emergency Support Functions (ESFs). Specific responsibilities of the DCO (subject to

modification based on the situation) include processing requirements for military support, forwarding

⁵⁸ Congress limited the Secretary of Homeland Security’s ability to designate a “field representative” during a Stafford Act

declared major disaster or emergency by barring such an appointment absent a specific waiver. The Secretary of Homeland

Security may designate a person to operate in the field that is not titled “Principal Federal Official.” The position must

report through the Federal Coordinating Officer (FCO). The Secretary of Homeland Security must notify Congress if

she/he appoints someone to function as a field representative. 2010 DHS Appropriations Act, § 522.

“DISASTER MANAGEMENT ROLES AND RESPONSIBILITIES,” available at

https://training.fema.gov/emiweb/downloads/is208sdmunit1.pdf (last visited July 23, 2020).

⁶⁰ JFO SOP, supra note 56, at 15.

⁶¹ FEMA, OVERVIEW OF FEDERAL TO FEDERAL SUPPORT IN NON-STAFFORD ACT SITUATIONS, available at

https://www.fema.gov/pdf/emergency/nrf/nrf-fedtofed.pdf (last visited Ju1y 23, 2020).

⁶² JFO SOP, supra note 56, at 15.

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mission assignments to the appropriate military organizations through DoD-designated channels, and

assigning military liaisons, as appropriate, to activated ESFs. Currently, DoD has assigned DCOs at

each of the ten Department of Homeland Security/FEMA regions. (See Figure 2-1 below).

Joint Task Force (JTF) Commander. Based on the size and type an incident a combatant

commander may utilize a Joint Task Force (JTF) to command Federal (Title 10) forces responding to

the event. If a JTF is established, its command and control element will be co-located with the PFO at

the JFO to ensure coordination and unity of effort. A JTF commander exercises operational control of

all allocated DoD resources (excluding USACE resources, National Guard (NG) personnel in State

Active Duty or Title 32 status, and, in some circumstances, DoD personnel in support of the FBI). The

use of the JTF command and control element does not replace the requirement for a DCO/DCE at the

JFO interfaced with the UCG. Requests for DoD assistance must still be coordinated through the

DCO. The JTF command element will work with UCG members to ensure a clear understanding of

the Federal military roles and responsibilities during the operation.⁶³

Figure 2-1. Map of FEMA Regions⁶⁴

⁶³ Id. at 20.

⁶⁴ FEMA, FEMA Regional Offices, available at, https://www.fema.gov/fema-regional-contacts (last visited Jul. 28, 2020).

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Dual Status Commander (DSC). The National Defense Authorization Act for 2012⁶⁵ stated when

Federal forces and the NG simultaneously provide support to civil authorities, appointment of a DSC

should be the usual and customary command and control arrangement.⁶⁶ This arrangement helps

Federal and NG personnel unify efforts in response to a major disaster or emergency. This includes

Stafford Act major disaster and emergency response missions. A DSC maintains a commission in both

a Title 10 and Title 32 capacity, and is subject to orders from both the State and Federal chains of

command. This unique status serves as a vital link between the two. The use of DSCs have become

common for incident response and special events since 2004. DSCs receive their appointment in one

of two ways. First, under 32 U.S.C. § 315, an active duty Army or Air Force officer may be detailed to

the Army or Air NG of a State. Second, under 32 U.S.C. § 325, a member of a State’s Army or Air

NG may be ordered to active duty. Regardless of method of appointment, the Secretary of Defense

must authorize the dual status, and the Governor of the effected State must consent.⁶⁷

⁶⁵ National Defense Authorization Act of 2012, Pub. L. No. 112-81, § 515, 125 Stat. 1298 (2011). See also 32 U.S.C. §§

315, 325 (2012 & Supp. IV 2017).

⁶⁶ National Defense Authorization Act of 2012, Pub. L. No. 112-81, § 515(c), 125 Stat. 1395 (2011), 32

U.S.C. § 317, note. Despite a DSC being the usual and customary arrangement, this language “does not limit, in any way,

the authorities of the President, the Secretary of Defense, or the Governor of any State to direct, control, and prescribe

command and control arrangements for forces under their command.” Id.

⁶⁷ See 32 U.S.C. §§ 315, 325 (2012 & Supp. IV 2017); and U.S. Gov’t Accountability Office, DoD Needs to Address Gaps

in Homeland Defense and Civil Support Guidance, GAO-13-128 (Oct. 2012).

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National Prevention Framework (NPF)

The NPF provides guidance to leaders and practitioners at all levels of government, private and non-

profit sector partners, and individuals, on how to prevent or stop a threatened or actual act of

terrorism.⁷⁰ It helps achieve the National Preparedness Goal of a secure and resilient Nation that is

optimally prepared to prevent an imminent terrorist attack within the United States by:

• Describing the core capabilities needed to prevent an imminent act of terrorism;

• Aligning key roles and responsibilities to deliver Prevention capabilities in time-sensitive

Situations;

• Describing coordinating structures that enable all stakeholders to work together; and

• Laying the foundation for further operational coordination and planning that will synchronize

Prevention efforts within the whole community and across the Protection, Mitigation,

Response, and Recovery mission areas.⁷¹

As mentioned above, thirty-two core capabilities were developed and published in conjunction with the

National Preparedness Goal (NPG). Of the thirty-two, the seven Prevention core capabilities are:

• Planning;

• Public Information and Warning;

• Operational Coordination;

• Forensics and Attribution;

• Intelligence and Information Sharing;

• Interdiction and Disruption; and

• Screening, Search, and Detection.⁷²

As with other frameworks, there are multiple coordinating structures for Prevention (some are shared

with the other mission areas). Departments or agencies, as well as private and nonprofit entities with

unique missions in Prevention, bring additional capabilities to bear through these structures.

Coordinating structures can function on multiple levels, to include national-level coordinating

⁷⁰ For example, the Prevention framework describes the process through which the public is warned regarding credible

terrorist threats through National Terrorism Advisory System (NTAS) alerts. DHS, NATIONAL PREVENTION FRAMEWORK

15 (June 2016), available at https://www.hsdl.org/?abstract&did=793534 (last visited on April 18, 2021).

⁷¹ Id.

⁷² DHS, NATIONAL PREPAREDNESS GOAL, supra note 21.

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structures such as the DHS National Operations Center (NOC), the Federal Bureau of Investigation

(FBI) Strategic Information and Operations Center (SIOC), the Office of the Director of National

Intelligence (ODNI) National Counterterrorism Center (NCTC), the DoD National Military Command

Center (NMCC), the FBI National Joint Terrorism Task Force (NJTTF), and others. Field

coordinating structures, such as the FBI JTTFs and Field Intelligence Groups (FIGs), State and major

urban area fusion centers, State and local counterterrorism and intelligence units, and other entities,

also play a critical role as coordinating structures in preventing imminent acts of terrorism.⁷³

National Mitigation Framework (NMF)

The NMF establishes a common forum for coordinating and addressing how the Nation manages risk

through mitigation capabilities.⁷⁴ It describes mitigation roles for government, NGOs, and private

entities. The NMF also addresses how the Nation will develop, employ, and coordinate mitigation

core capabilities to reduce loss of life and property due to disasters. Building on a wealth of evidence-

based knowledge and community experience, the NMF seeks to increase risk awareness and leverage

mitigation products, services, and assets across the whole community.⁷⁵

The NMF advances operational planning throughout the whole preparedness community by offering a

comprehensive approach to reducing the impact of disasters through the development, implementation,

and coordination of seven mitigation core capabilities.⁷⁶ The NMF seven core capabilities are:

Planning, Public Information and Warning, Operational Coordination, Community Resilience, Long-

term Vulnerability Reduction, Risk and Disaster Resilience Assessment, and Threats and Hazard

Identification.⁷⁷

As with the NRF and other mission area frameworks, the mitigation mission area and NRF refer to the

multiple levels of coordinating structures already discussed. Numerous existing coordinating

structures already support the mitigation mission area, such as the National Security Council (NSC).⁷⁸

The Mitigation Framework Leadership Group (MitFLG) is a coordinating structure established to

coordinate mitigation efforts across the Federal Government and to assess the effectiveness of

mitigation capabilities as they are developed and deployed across the Nation. The MitFLG includes

relevant local, State, tribal, and Federal organizations. It is chaired by FEMA in consultation with

Department of Homeland Security (DHS) leadership. Consistent with PPD 1 (Organization of the

⁷³ DHS, OVERVIEW OF THE NATIONAL PLANNING FRAMEWORKS 3 (June 2016), available at

https://www.fema.gov/emergency-managers/national-preparedness/frameworks (last visited April 18, 2021).

⁷⁴ Under PPD-8, mitigation capabilities “include, but are not limited to, community-wide risk reduction projects; efforts to

improve the resilience of critical infrastructure and key resource lifelines; risk reduction for specific vulnerabilities from

natural hazards or acts of terrorism; and initiatives to reduce future risks after a disaster has occurred.” See PPD-8, supra

note 16.

⁷⁵ DHS, NATIONAL MITIGATION FRAMEWORK ii, i (June 2016), available at https://www.fema.gov/media-

library/assets/documents/117787 [hereinafter NMF] (last visited April 18, 2021).

⁷⁶ Id. at 39-40.

⁷⁷ Id. at 15.

⁷⁸ Id. at 33.

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National Security Council System), the MitFLG coordinates with the relevant National Security

Council Interagency Policy Committees.⁷⁹

National Disaster Recovery Framework (NDRF)

The NDRF was published in September 2011 as a guide to promote effective recovery from incidents.

It provides guidance that enables effective recovery support to disaster-impacted States, tribes, and

local jurisdictions. The NDRF also provides a flexible structure that enables disaster recovery

managers to operate in a unified manner. Last, the NDRF focuses on how best to restore, redevelop,

and revitalize the health, social, economic, natural, and environmental fabric of the community after an

incident.⁸⁰ The NDRF defines:

• Core recovery principles;

• Roles and responsibilities of recovery coordinators and other stakeholders;

• A coordinating structure to facilitate communication and collaboration among stakeholders;

• Guidance for pre- and post-disaster recovery planning; and

• The overall process by which communities can capitalize on opportunities to rebuild stronger,

smarter, and safer.⁸¹

As with the other frameworks, the NDRF discusses the development and implementation of core

capabilities. The eight core capabilities⁸² for the NDRF are:

• Planning;

• Public Information and Warning;

• Operational Coordination;

• Economic Recovery;

• Health and Social Services;

• Housing;

⁷⁹ Id. at 34.

⁸⁰ FEMA, NATIONAL DISASTER RECOVERY FRAMEWORK 23 June 2020, available at https://www.fema.gov/emergency-

managers/national-preparedness/frameworks/recovery (last visited April 26, 2021).

⁸¹ Id.

⁸² DHS, NATIONAL DISASTER RECOVERY FRAMEWORK 24 (June 2016), available at https://www.fema.gov/media-library-

data/1466014998123-4bec8550930f774269e0c5968b120ba2/National_Disaster_Recovery_Framework2nd.pdf (last visited

April 24, 2021).

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• Infrastructure Systems; and

• Natural and Cultural Resources.

The NDRF introduces four new concepts and terms: Federal Disaster Recovery Coordinator (FDRC),

State or Tribal Disaster Recovery Coordinators (SDRCs or TDRCs), Local Disaster Recovery

Managers (LDRMs), and Recovery Support Functions (RSFs). The six new RSFs provide a structure

to facilitate problem solving, improve access to resources, and foster coordination. The RSFs are

similar in concept to ESFs in that each RSF has coordinating and primary Federal agencies, as well as

supporting organizations that operate together with local, State and tribal government officials, non-

governmental organizations (NGOs) and private sector partners. As with the ESFs, RSFs can be

selectively activated, as needed.⁸³ The FDRC, SDRC/TDRC, and LDRM are three new positions that

provide focal points for incorporating recovery considerations into the decision-making process and

monitoring the need for adjustments in assistance, where necessary and feasible throughout the

recovery process.⁸⁴

10. National Protection Framework

The National Protection Framework, Second Edition, was published in June 2016 and describes what

the whole community—from community members to senior government leaders—should do to

safeguard against acts of terrorism, natural disasters, and other threats or hazards.⁸⁵ This Framework

helps achieve the NPG of a secure and resilient Nation that is prepared to protect against the greatest

risks in a manner that allows American interests, aspirations, and way of life to thrive.⁸⁶ This

Framework provides guidance to leaders and practitioners at all levels of government; the private and

nonprofit sectors; and individuals by:

• Describing the core capabilities needed to achieve the Protection mission area and end-state of

“creating conditions for a safer, more secure, and more resilient Nation;”

• Aligning key roles and responsibilities to deliver Protection capabilities;

• Describing coordinating structures that enable all stakeholders to work together; and

• Laying the foundation for further operational coordination and planning that will synchronize

Protection efforts within the whole community and across the Prevention, Mitigation,

Response, and Recovery mission areas.⁸⁷

The NPG identifies 11 core capabilities for the Protection mission area: Planning; Public Information

and Warning; Operational Coordination; Intelligence and Information Sharing; Interdiction and

⁸³ Id. at 36.

⁸⁴ Id at 44.

⁸⁵ DHS, NATIONAL PROTECTION FRAMEWORK i (Jun. 2016), available at https://www.fema.gov/sites/default/files/2020-

04/National_Protection_Framework2nd-june2016.pdf (last visited April 26, 2021).

⁸⁶ Id.

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Disruption; Screening, Search, and Detection; Access Control and Identity Verification; Cybersecurity;

Physical Protective Measures; Risk Management for Protection Programs and Activities; and Supply

Chain Integrity and Security. The first three core capabilities—Planning, Public Information and

Warning, and Operational Coordination—are common to all five Frameworks. The Protection and

Prevention mission areas share three core capabilities: Intelligence and Information Sharing;

Interdiction and Disruption; and Screening, Search, and Detection. The Protection Framework

provides detailed descriptions of each core capability and the relationships to the other mission areas.⁸⁸

Similar to the other NPS Frameworks, the Protection Framework describes coordinating structures that

provide the mechanisms to develop and deliver the core capabilities. In the context of the National

Protection Framework, coordinating structures support protection program implementation.

Additionally, the coordinating structures strengthen the Nation’s ability to increase the protective

posture when required to augment operations that take place during periods of heightened alert,

incident response, or in support of planned events. The coordinating structures are used to conduct

planning, implement training and exercise programs, promote information sharing, shape research and

development priorities and technical requirements, address common vulnerabilities, align resources,

and promote the delivery of Protection capabilities.⁸⁹

11. National Incident Management System (NIMS)

HSPD-5 directed the Secretary of Homeland Security coordinate with other Federal department and

agencies along with State, local, and tribal governments to develop a NIMS. The Secretary of

Homeland Security remains responsible for administration of the NIMS. First published in 2004,

NIMS provided a consistent nationwide template to enable Federal, State, tribal, and local

governments as well as non-governmental organizations and private entities to work together to

prevent, protect against, respond to, recover from, and mitigate the effects of incidents.⁹⁰ Since then,

NIMS has been revised to reflect input from a broad variety of stakeholders. In addition, lessons

learned from recent incidents were considered in the latest version. NIMS is not an operational

management plan. Instead, it is a core set of doctrine, concepts, terminology, and organizational

processes intended to enable efficient and collaborative management of incidents.⁹¹

As with the Stafford Act, NIMS is based on the premise that most incidents begin and end locally.

Additionally, most incidents are managed on a daily basis at the lowest possible geographical,

organizational, and jurisdictional level.⁹² NIMS focuses on the following elements of preparedness:

planning; procedures and protocols; training and exercises; personnel qualifications and certification;

and, equipment certification.⁹³ NIMS also stresses a unified approach to management and response

activities, and that all levels of governments and organizations must identify their capabilities before

incidents occur. NIMS comprises three major components:

⁸⁷ Id. at 1-2.

⁸⁸ Id. at 11-12.

⁸⁹ Id. at 21.

⁹⁰ NIMS, supra note 26, at iii.

⁹¹ Id. at 4.

⁹² Id. at 10.

⁹³ Id. at 50.

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a. Communications and Information Management. NIMS emphasizes that well

planned,

established, and utilized communications are critical for enabling the dissemination of information

during an incident.⁹⁴ Common plans, standards and communication architecture help to facilitate

interoperability and maintain a constant flow of information during an incident.⁹⁵ As with incident

response in general, communication systems should be flexible and scalable to effectively manage any

situation.

b. Resource Management. According to NIMS, resource management is divided into

three sections: (1) Resource Management Preparedness; (2) Resource Management During an Incident;

and (3) Mutual Aid.⁹⁶

c. Command and Coordination. NIMS incorporates the existing Incident Command

System (ICS) and Multi-Agency Coordination Systems (MACS) as the command structure for

response to all hazards at all levels of government.⁹⁷ The ICS works at the tactical level, organizing

the on-scene operations.⁹⁸ In comparison, MACS coordinate activities above the field level and can be

either informal or formal. Formal coordination addresses issues before an incident occurs and is the

preferred process.⁹⁹

HPSD-5 authorized the Secretary of Homeland Security to establish a mechanism to ensure the

ongoing management and maintenance of NIMS. The National Integration Center (NIC) was

established to assist government and private sectors in implementing NIMS and to provide for its

refinement.¹⁰⁰ As part of this process, NIMS notes the continued development of science and

technology as playing a critical role in improving response capabilities.

12. Other Significant Response Plans, Authorities, and Policies Related to the National

Preparedness Framework

When DHS initiates the response mechanisms of the NRF, including the ESFs, Support Annexes, and

Incident Annexes, existing interagency plans that address incident management are incorporated as

supporting plans and/or operational supplements to the NRF. For incidents not led by DHS, other

Federal agency response plans provide the primary Federal response protocol. Common interagency

plans responders may encounter during such incidents include the National Oil and Hazardous

Substances Pollution Contingency Plan, more commonly called the National Contingency Plan (NCP),

and the National Emergency Communications Plan (NECP). Agencies should note the NRF may

modify their responsibilities in the event of a major disaster or emergency.

⁹⁴ Id.

⁹⁵ Id.

⁹⁶ Id. at 6-11.

⁹⁷ Id. at 3.

⁹⁸ Id. at 24.

⁹⁹ Id. at 19.

¹⁰⁰ Id. at iii.

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a. The National Contingency Plan (NCP)

The NCP¹⁰¹ was developed pursuant to the Comprehensive Environmental Response, Compensation,

and Liability Act of 1980 (CERCLA) and the Federal Water Pollution Control Act or Clean Water Act

of (1972). It sets out procedures for preventing and responding to oil discharges into navigable waters

and releases of hazardous substances, pollutants, and contaminants into the environment. The NCP

provides that a predesignated on-scene coordinator (OSC) shall direct response efforts at the scene of a

discharge or release. Inland, the Environmental Protection Agency (EPA) is the lead response agency

and provides OSCs for responses. In coastal areas, the U.S. Coast Guard is the lead response agency

for coordinating the Federal response. Executive Order 12580 authorizes the establishment of the

National Response Team (NRT) for planning and preparing for response actions; designates the EPA

and the Coast Guard as co-chairs; and designates responsibilities of other agencies on the NRT and on

Regional Response Teams.¹⁰² Generally, the Department of Defense or the Department of Energy

(DOE) will provide the OSC and lead the response to the release of hazardous substances, pollutants,

or contaminants when the incident is on or comes from a facility or vessel under the DoD or DOE

control, custody, or jurisdiction, respectively.¹⁰³ Whether or not the NRF is activated, the OSCs apply

NIMS and Incident Command principles during a response.

ESF #10 governs the response to oil and hazardous materials. Although the EPA is the ESF #10

coordinator under the NRF, either the EPA or DHS/Coast Guard will serve as the primary agency for

ESF #10 response actions, depending on whether the incident is in the inland or coastal zone (the role

of primary agencies under the ESFs are discussed above). The NCP is considered an operational

supplement to the NRF. If the NRF or ESF #10 is activated for an oil discharge or hazardous material

release, the NCP will serve as the basis for actions taken in support of the NRF.¹⁰⁴

b. The National Emergency Communications Plan (NECP)

Congress directed the Department of Homeland Security’s (DHS) Office of Emergency

Communications (OEC) to develop the first National Emergency Communications Plan (NECP). Title

XVIII of the Homeland Security Act of 2002,¹⁰⁵ as amended, calls for the NECP to be developed in

coordination with stakeholders from all government levels and with members from the private sector.

DHS worked with stakeholders from Federal, State, local, and tribal agencies to develop this strategic

plan establishing a national vision for the future state of emergency communications. The vision is to

“[e]nable the Nation’s emergency response community to communicate and share information securely

across communications technologies in real-time, including all levels of government, jurisdictions,

101

40 C.F.R. § 300 (2017). The NCP is required by section 105 of the Comprehensive Environmental Response,

Compensation, and Liability Act of 1980, 42 U.S.C. 9605, as amended by the Superfund Amendments and Reauthorization

Act of 1986 (SARA), Pub. L. 99-499, and by section 311(d) of the Clean Water Act (CWA), 33 U.S.C. 1321(d), as

amended by the Oil Pollution Act of 1990 (OPA 90), Pub. L. 101-380. See 40 C.F.R. § 300.2 (2017). Executive Orders

12580 and 12777 delegated to the EPA responsibility to amend the NCP as necessary.

¹⁰² Exec. Order No. 12580, 52 F.R. 2923, (23 Jan. 1987).

103

40 C.F.R. § 300 (2017).

¹⁰⁴ FEMA, EMERGENCY SUPPORT FUNCTION #10 - OIL AND HAZARDOUS MATERIALS RESPONSE ANNEX, (Jun. 2016),

available at https://www.fema.gov/sites/default/files/2020-07/fema_ESF_10_Oil-Hazardous-Materials.pdf (last visited

April 18, 2021).

¹⁰⁵ HSA, supra note 6.

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disciplines, organizations, and citizens impacted by any threats or hazards event”.¹⁰⁶ Emergency

Support Function 2 of the NRF, Communications, supplements the NECP and sets out procedures for

coordinating the provision of temporary national security and emergency preparedness

telecommunications support in areas impacted by a major disaster or emergency.

c. Nuclear/Radiological Incidents

The Nuclear/Radiological Incident Annex (NRIA) of the NRF supersedes the Federal Radiological

Emergency Response Plan (FRERP) of 1996. The NRIA describes the policies, situations, concepts of

operations, and responsibilities of the Federal departments and agencies governing the immediate

response and short-term recovery activities for incidents involving release of radioactive materials.

The incidents may result from inadvertent or deliberate acts. Pursuant to the incident annex paradigm,

when DHS exercises domestic incident management functions, it is supported by other Federal

agencies that are either “coordinating” or “cooperating” agencies.¹⁰⁷

“Coordinating agencies” provide the leadership, expertise, and authorities to implement critical and

specific nuclear/radiological aspects of the response and facilitate nuclear/radiological aspects of the

response in accordance with those authorities and capabilities. The coordinating agencies are those

Federal agencies that own, have custody of, authorize, regulate, or are otherwise assigned

responsibility for the nuclear/radioactive material, facility, or activity involved in the incident.

“Cooperating agencies” include other Federal agencies that provide additional technical and resource

support specific to nuclear/radiological incidents to the Department of Homeland Security and the

coordinating agencies.¹⁰⁸

When the Department of Homeland Security is not exercising domestic incident management

responsibilities, the coordinating agency, as determined by their authorities, will be the responsible

agency. The Department of Defense is the coordinating agency for incidents involving DoD-owned or

operated nuclear facilities, materials shipped by or for the Department of Defense, nuclear weapons,

and DoD satellites containing radioactive materials that impact within the United States.¹⁰⁹

d. National Security Presidential Directive 46 (NSPD-46) and Homeland Security

Presidential Directive 15 (HSPD-15)

NSPD-46/HSPD-15 detail the policy of the United States for combating terrorism and reaffirm the lead

agencies for the management of various aspects of the counterterrorism effort.¹¹⁰ They recognize that

States have primary responsibility in responding to terrorist incidents, including actual events, and the

Federal Government provides assistance as required.

¹⁰⁶ DHS, NATIONAL EMERGENCY COMMUNICATIONS PLAN, (2019), available at https://www.cisa.gov/publication/2019-

national-emergency-communications-plan (last visited April 18, 2021).

¹⁰⁷ FEMA, NUCLEAR/RADIOLOGICAL INCIDENT ANNEX, (Oct. 2016) 1,4,7, available at

https://www.fema.gov/sites/default/files/2020-07/fema_incident-annex_nuclear-radiological.pdf (last visited April 26,

2021).

¹⁰⁸ Id. at 22.

¹⁰⁹ Id. at 26.

¹¹⁰ NATIONAL SECURITY PRESIDENTIAL DIRECTIVE 46/HOMELAND SECURITY PRESIDENTIAL DIRECTIVE 15, “U.S.

STRATEGY AND POLICY IN THE WAR ON TERROR” (classified), March 6, 2006.

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e. The Defense Against Weapons of Mass Destruction (WMD) Act¹¹¹

Title 50 of Chapter 40 of the U.S. Code concerns the U.S. Government’s response to the proliferation

of and use or threat to use nuclear, chemical, or biological WMD or related materials and

technologies.¹¹² Title 50 U.S.C. § 2313 directs the Secretary of Defense to designate an official within

the Department of Defense as Executive Agent to coordinate DoD assistance with Federal, State, and

local entities when responding to incidents involving such materials. The Secretary of Defense has

appointed the Assistant Secretary of Defense for Homeland Defense and Americas’ Security Affairs

(ASD (HD&ASA)) as Executive Agent. The Department of Energy (DOE) was directed to designate

an Executive Agent for its nuclear, chemical, and biological response, and DoD and DOE Executive

Agents are responsible for coordinating assistance with Federal, State, and local officials when

responding to threats involving nuclear, chemical, and biological weapons.¹¹³

B. The Robert T. Stafford Disaster Relief and Emergency Assistance Act (Stafford Act)

The Stafford Act provides for assistance from the Federal government to States in the event of

emergencies or natural and other disasters.¹¹⁴ The Stafford Act is the primary legal authority for

Federal emergency and disaster assistance to State and local governments. Congress’ intent in passing

the Stafford Act was to provide for an “orderly and continuing means of assistance by the Federal

government to State and local governments in carrying out their responsibilities to alleviate the

suffering and damage which result from such disasters.”¹¹⁵ The Stafford Act sought, among other

things, to:

1) broaden the scope of disaster relief programs; 2) encourage the development of

comprehensive disaster preparedness and assistance plans, programs, and capabilities of State and local

governments; and 3) provide Federal assistance programs for both public and private losses sustained

in disasters.¹¹⁶

Through the Stafford Act, Congress delegated to the President emergency powers that may be

exercised in the event of a declared major disaster or emergency. Generally, Federal Stafford Act

assistance is given upon request from a State Governor¹¹⁷ provided certain conditions are met;

¹¹¹ The Defense Against Weapons of Mass Destruction Act, Public Law: 104-201, 1996, codified at 50 U.S.C. §§ 2301-

2371 (2012 & Supp. IV 2017).

112

10 U.S.C. § 12304 (2012 & Supp. IV 2017) provides the Federal authority for the mobilization of Reserve Components

in response to the use or threatened use of a weapon of mass destruction.

113

50 U.S.C. §§ 2301-2371 (2012 & Supp. IV 2017).

¹¹⁴ The Robert T. Stafford Disaster Relief and Emergency Assistance Act, 42 U.S.C. § 5121, et seq., as amended by the

Post-Katrina Emergency Management Reform Act of 2006, Pub. L. No. 109-295 (2007), the Sandy Recovery Improvement

Act of 2013, Pub. L. No. 113-2 (2013), and the Disaster Recovery Reform Act of 2018, Pub. L. No. 115-254 (2018)

[hereinafter The Stafford Act].

115

42 U.S.C. § 5121 (2012 & Supp. IV 2017).

¹¹⁶ Id.

¹¹⁷ An example where a request is not required is in the case of an emergency in an area where the Federal Government is

determined to have primary responsibility, as discussed below. See 42 U.S.C. § 5191(a) (2012 & Supp. IV 2017).

Additionally, 42 U.S.C. § 5170a(5) states that in a major disaster, the President may provide accelerated Federal assistance

in the absence of a request where necessary to save lives, prevent human suffering, or mitigate severe damage as long as

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primarily that the Governor certifies that the State lacks the resources and capabilities to manage the

consequences of an event without Federal assistance. The Stafford Act lists the roles and

responsibilities of Federal agencies and departments when providing both major disaster and

emergency assistance, and it outlines the types of assistance that affected State(s) may receive from the

Federal Government. (See Table 2-4 below).

FEMA operates under the Stafford Act and is the lead Federal agency for Stafford Act responses,

focusing its efforts on managing the consequences of disasters and emergencies. FEMA’s actions

under the Stafford Act are generally driven by requests from State and local governments. Figure 2-3

provides an overview of the process of providing Federal support to States under the Stafford Act.

To coordinate the relief efforts of all Federal agencies in both major disasters and emergencies, the

Stafford Act authorizes the President to appoint a Federal Coordinating Officer (FCO) immediately

after declaring a major disaster or emergency. The Stafford Act also requires the President to request

that a Governor seeking Federal assistance designate a State Coordinating Officer (SCO) to coordinate

State and local disaster assistance efforts with those of the Federal government.¹¹⁸

The Stafford Act applies in the event of a major disaster or emergency. It details the emergency

functions of the President, which are delegated per Executive Order 12656 and other directives.

DEPARTMENTS &

ROLES AND RESPONSIBILITIES

AGENCIES

Executive Office of the

Major Disaster Assistance—upon request of a State Governor.

President (President or

Provide specified essential services; coordinate disaster relief

as delegated)

activities; direct Federal agency assistance to States and localities;

take other action as consistent with the Act and within delegated

authority.

Emergency Assistance, upon request of a State Governor or sua

sponte: Direct Federal agencies to provide resources and

technical and advisory assistance; provide essential services;

coordinate all disaster relief assistance.

Federal Coordinating

Major Disaster and Emergency Assistance: Establish field

Officer

offices; coordinate relief efforts; take other necessary actions

within authority.

Emergency Support

Assist the Federal Coordinating Officer in carrying out his or her

Teams

responsibilities in a major disaster or emergency.

State Governor(s)

Request declaration by the President that a major disaster or

emergency exists.

Federal Agencies

Provide, consistent with appropriate authorities and upon request

from the President: Personnel for the Emergency Support Teams;

and, assistance in meeting immediate threats to life and property

prompt coordination with the State occurs. Use of this authority may impede the ability of the Federal Government to

implement the cost-share process.

118

42 U.S.C. § 5143 (2012 & Supp. IV 2017).

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resulting from a major disaster or emergency.

FEMA

Prepare, sponsor, and direct Federal response plans and programs

for emergency preparedness; provide hazard mitigation assistance

in the form of property acquisition & relocation assistance.

Department of Defense

Upon President’s direction, provide “emergency work” to protect

life and property prior to declaration of major disaster or

emergency.

American National Red

Major Disaster: As a condition of receiving assistance, comply

Cross and other relief

with regulations relating to non-discrimination and other

organizations

regulations as deemed necessary by the President for effective

coordination of relief efforts.

Table 2-4. Stafford Act Roles and Responsibilities

Figure 2-3.¹¹⁹

¹¹⁹ FEMA, Overview of Stafford Act Support to States, available at http://www.fema.gov/pdf/emergency/nrf/nrf-

stafford.pdf (last visited Aug. 3, 2020).

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The FCO may utilize relief organizations, such as State relief organizations and the American National

Red Cross (ANRC). The use may be for the distribution of emergency supplies, such as food and

medicine, and in reconstruction or restoration of essential services, such as housing. The FCO may

coordinate all relief efforts. However, States, localities, and relief organizations must agree with the

courses of action. The President must form Emergency Support Teams (EST) of Federal personnel to

be deployed to the area of the disaster or emergency.¹²⁰ By delegation, the FCO may activate ESTs,

composed of Federal program and support personnel, which deploy into an area affected by a major

disaster or emergency.¹²¹ The EST is the principal interagency group that supports the FCO in

coordinating the overall Federal disaster assistance.

1. Requests for Emergency or Major Disaster Declarations

Under the Stafford Act, the Governor of an affected State may request the declaration of a major

disaster or emergency.¹²² The Governor must demonstrate, as a prerequisite for receiving assistance,

both that the State’s response plans have been activated and that State and local capabilities are

inadequate for an effective response.¹²³ The Stafford Act’s definitions of “emergency” and “major

disaster” are referenced in many of the legal documents related to incident management and are used

consistently throughout this chapter.

a. Major Disasters

A “major disaster” is defined as follows:

[A]ny natural catastrophe (including any hurricane, tornado, storm, high water,

winddriven water, tidal wave, tsunami, earthquake, volcanic eruption, landslide,

mudslide, snowstorm, or drought), or, regardless of cause, any fire, flood, or

explosion, in any part of the United States, which in the determination of the

President causes damage of sufficient severity and magnitude to warrant major

disaster assistance under this chapter to supplement the efforts and available

resources of States, local governments, and disaster relief organizations in

alleviating the damage, loss, hardship, or suffering caused thereby.¹²⁴

A major disaster encompasses fires, floods, and explosions, regardless of cause, when such acts cause

damage of sufficient severity to warrant Federal disaster assistance, as determined by the President. A

WMD event involving fire or explosion, including the detonation of a high-yield explosive, would

likely meet this threshold. Following the letter of the law strictly, a chemical, radiological, or

biological WMD event in the United States will qualify as a major disaster only if it results in a fire,

flood, or explosion. A WMD event of catastrophic proportions could warrant treatment as both a

major disaster and an emergency.

120

42 U.S.C. § 5144 (2012 & Supp. IV 2017).

121

44 C.F.R. § 206.43 (2017). These teams may also be called emergency response teams.

122

44 C.F.R. § 206.35 (2017).

123

44 C.F.R. § 206.36 (2017).

124

42 U.S.C. § 5122(2) (2018).

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Major disaster assistance is a more comprehensive grant of Federal aid for long-term consequence

management. In a major disaster, the President has broad authority to assist States and localities. To

receive Federal assistance, a Governor must not only indicate to the President that the State does not

have the capacity or resources to mount an effective response, but he or she must also furnish

information on the measures that have or will be taken at the State and local levels to mitigate the

effects of the disaster. In addition, the Governor must certify that State and local government

obligations and expenditures will comply with all applicable cost-sharing requirements of the Stafford

Act.¹²⁵

The President’s powers after the declaration of a major disaster include, but are not limited to,

providing: specified technical and advisory assistance; temporary communications services; food;

relocation assistance; legal services; crisis counseling assistance and training; unemployment

assistance; emergency public transportation in the affected area; and fire management assistance on

public or privately-owned forest or grassland.¹²⁶ In addition, the President is authorized to direct

Federal agencies to provide equipment, supplies and facilities to State and local governments;

distribute food and medicine to victims; and perform work and services (such as search and rescue)

necessary to save lives and protect property.¹²⁷

b. Emergencies

The Stafford Act defines “emergency” as follows:

[A]ny occasion or instance for which, in the determination of the President,

Federal assistance is needed to supplement State and local efforts and

capabilities to save lives and to protect property and public health and safety, or

to lessen or avert the threat of a catastrophe in any part of the United States.¹²⁸

An emergency is, more broadly, any situation in which Federal assistance is required to save lives,

protect health and property, or mitigate or avert a catastrophe. Generally, the existence or threat of a

chemical, biological, radiological, nuclear, and high-yield explosive WMD would be deemed an

“emergency,” if it overwhelms State and local authorities and warrants the assistance of the Federal

Government.

Emergency authority granted to the President is similar to that authorized for handling major disasters,

but not as extensive. Emergency assistance is more limited in scope and in time. Additionally, total

assistance may not exceed $5 million for a single emergency, unless the President determines there is a

continuing and immediate risk to lives, property, public health or safety, and necessary assistance will

not otherwise be provided on a timely basis.¹²⁹ In contrast to its provisions for major disasters, The

Stafford Act authorizes the President to declare an emergency sua sponte, when the emergency

125

42 U.S.C. § 5170 (2018).

126

42 U.S.C. §§ 5171-5189 (2012 & Supp. IV 2017).

¹²⁷ See id. § 5170b.

128

42 U.S.C. § 5122(1) (2018).

¹²⁹ See id. § 5193.

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“involves a subject area for which, under the Constitution or laws of the United States, the United

States exercises exclusive or preeminent responsibility and authority.”¹³⁰

In any emergency, the President may direct any Federal agency, with or without reimbursement, to use

the authorities and resources granted to it under Federal law in support of State and local emergency

assistance efforts to save lives, protect property and public health and safety, and lessen or avert the

threat of a catastrophe.¹³¹ The President may coordinate all emergency relief assistance and provide

technical and advisory assistance to affected State and local governments for the: performance of

essential community services; issuance of hazard and risk warnings; broadcast of public health and

safety information; and management, control and reduction of immediate threats to public safety.¹³²

The President may also direct Federal agencies to provide emergency assistance; remove debris

pursuant to 42 U.S.C. § 5173; provide temporary housing assistance in accordance with 42 U.S.C. §

5174; and assist State and local governments in the distribution of food, medicine, and other

consumable supplies.¹³³ The Stafford Act also authorizes the President, upon request from the

Governor of an affected State, to provide “emergency work” essential for the preservation of life and

property, by the Department of Defense for a maximum of ten days before the declaration of either an

emergency or a major disaster.¹³⁴

2. Liability under the Stafford Act

The Stafford Act specifically provides for immunity from liability for certain actions taken by Federal

agencies or employees of the Federal government pursuant to the Act. 42 U.S.C. § 5148 of the

Stafford Act provides:

The Federal Government shall not be liable for any claim based upon the

exercise or performance of or the failure to exercise or perform a discretionary

function or duty on the part of a Federal agency or an employee of the Federal

Government in carrying out the provisions of this chapter.¹³⁵

3. Categories of Agency Support Under the Stafford Act¹³⁶

Once an emergency or major disaster is declared, it means a State has requested assistance from the

Federal Government (except in the case of the limited exception discussed above). The assistance

given will typically take one of two forms: Direct Federal Assistance or Federal Operations Support.

¹³⁰ See id. § 5191(a).

¹³¹ See id. § 5192.

¹³² Id.

¹³³ Id.

¹³⁴ See id. § 5170b(c).

¹³⁵ See id. § 5148.

¹³⁶ U.S. COAST GUARD, COMDTINST 3006.1 (series), FEDERAL EMERGENCY MANAGEMENT AGENCY (FEMA) MISSION

ASSIGNMENTS: OPERATIONAL ACCEPTANCE AND EXECUTION (Aug. 13, 2012).

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a. Direct Federal Assistance is assistance where one or more Federal departments or

agencies provide goods and services to State and/or local governments. Direct Federal Assistance is

authorized and reimbursed by FEMA and is subject to Federal-State cost sharing.

b. Federal Operations Support is assistance where one or more Federal departments or

agencies provide goods or services to FEMA and/or other Federal agencies to enable them to provide

direct Federal assistance or other supplemental Federal assistance. Federal operations support is

requested by FEMA or another Federal department or agency. Federal operations support is

authorized and reimbursed by FEMA and is not subject to Federal-State cost sharing.

4. Interplay Between the Stafford Act and National Preparedness System (NPS)¹³⁷

The following is a summary of how Stafford Act assistance typically occurs, with reference to relevant

NPS concepts.

As the DHS NOC monitors for potential major disasters or emergencies, it will receive advance

warning of an incident, at which time DHS may deploy representatives to State EOCs for situational

assessment. Regional Response Coordination Centers (RRCCs) and other coordinating structures

discussed above may be activated.

Immediately after the incident, local emergency personnel assess the situation.¹³⁸ They may seek

additional resources through mutual aid agreements or the State. State officials will mobilize State

resources and may use mutual aid processes such as the Emergency Management Assistance Compact

(EMAC) to augment their resources.¹³⁹ The Governor will activate the State emergency operations

plan, declare a state of emergency, and may request a State/DHS joint Preliminary Damage

Assessment (PDA).¹⁴⁰ State and Federal officials conduct the PDA in coordination with tribal/local

officials as required and determine if the event warrants a request for a Presidential declaration of a

major disaster or emergency.

After a major disaster or emergency declaration, an RRCC coordinates initial activities until a JFO is

established.¹⁴¹ If regional resources are overwhelmed or if it appears that the event may result in

particularly significant consequences, DHS may deploy a national-level Incident Management

Assistance Team (IMAT). Depending on the scope and impact of the event, the NRCC carries out

initial activations and mission assignments and supports the RRCC. The Governor appoints a State

Coordinating Officer (SCO) to oversee State response and recovery efforts. A Federal Coordinating

Officer (FCO), appointed by the President in a Stafford Act declaration, coordinates Federal activities

in support of the State.¹⁴²

¹³⁷ Example provided by Overview of Stafford Act Support to States, supra note 122.

¹³⁸ Id.

¹³⁹ Id.

¹⁴⁰ Id.

¹⁴¹ Id.

¹⁴² Id.

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A JFO may be established locally to provide a central point for Federal, State, tribal, and local

executives to coordinate their support. The UCG leads the JFO. The UCG may need to meet initially

via conference calls to develop objectives and an initial action plan.¹⁴³ The UCG coordinates field

operations from the JFO. In coordination with State, tribal, and/or local agencies, ESFs are activated

to assess the situation and identify response requirements. Federal agencies provide resources under

DHS/FEMA mission assignments or their own authorities.¹⁴⁴

As immediate response priorities are met, recovery activities begin. The Stafford Act Public

Assistance program provides disaster assistance to States, tribes, local governments, and certain private

nonprofit organizations. As the need for full-time interagency coordination at the JFO decreases, the

UCG plans for selective release of Federal resources and demobilization.¹⁴⁵

C. Immediate Response Authority (IRA)

1. Federal Military Commanders

Federal military commanders, heads of DoD Components, and/or responsible DoD civilian officials

have IRA under DoDD 3025.18. In response to a request for assistance from a civil authority, under

imminently serious conditions and if time does not permit approval from higher authority, DoD

officials may provide an immediate response by temporarily employing the resources under their

control, subject to any supplemental direction provided by higher headquarters, to save lives, prevent

human suffering, or mitigate great property damage within the United States.¹⁴⁶ “The civil authority’s

request for immediate response should be directed to the installation commander or other appropriate

DoD official responsible for the installation

”¹⁴⁷ The DoD official must exercise judgement in

determining the maximum allowable distance from the installation that the immediate response may

take place and should also, unless otherwise directed by a higher authority, prioritize DoD resources

and requirements before addressing the civil authority’s request.¹⁴⁸ IRA does not allow for actions that

would subject civilians to the use of military power that is regulatory, prescriptive, proscriptive, or

compulsory (for a detailed discussion, see the Chapters within on Military Support to Civilian Law

Enforcement and Civil Disturbance Operations).

Separately, per DoDD 3025.18., paragraph 4.i.4, any decision by an IRA to temporarily deploy

resources requires notification to the National Joint Operations and Intelligence Center (NJOIC).

Commanders may not normally continue support under IRA beyond 72 hours. When using this

¹⁴³ Id.

¹⁴⁴ Id.

¹⁴⁵ Id.

¹⁴⁶ U.S. DEP’T OF DEFENSE, DIR. 3025.18, DEFENSE SUPPORT OF CIVIL AUTHORITIES para. 4.i. (29 Dec. 2010) (C2, 19 Mar.

2018) [hereinafter DoDD 3025.18].

¹⁴⁷ Id. at 5.

¹⁴⁸ Id.

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authority, DoD commanders shall reassess whether there remains a continued need for a DoD response

as soon as practicable, but no later than 72 hours after the request for assistance was received.¹⁴⁹

As noted in Chapter 1, Commanders must evaluate requests from civil authorities for assistance for:

• Cost - Who pays and the impact on DoD budget;

• Appropriateness - Whether it is in the interest of DoD to provide the requested support;

• Readiness - Impact on DoD’s ability to perform its primary mission;

• Risk - Safety of DoD forces;

• Legality - Compliance with the law; and

• Lethality - Potential use of lethal force by or against DoD forces.¹⁵⁰

2. State Governors

As the principle authority during State emergencies, Governors may direct an immediate response

using NG personnel under State command and control (including personnel in a Title 32

status).¹⁵¹However, NG personnel will not be placed in or extended in Title 32 status to conduct State

immediate response activities.¹⁵² Additionally, State leadership must coordinate with the Chief of the

NG Bureau to approve the continued use of personnel in a Title 32 status responding in accordance

with IRA in excess of seventy-two hours.

D. Conclusion

The NPS and NIMS represent a significant shift from the pre-9/11 and pre-Hurricane Katrina approach

of the Federal Government to domestic incident management. Although the Stafford Act remains the

primary mechanism for Federal support to State and local authorities, and State requests for assistance

still formally initiate the Federal response, the manner in which the Federal Government provides the

assistance has changed. Consolidation, unification, anticipation, and systemization are the unifying

themes of these key changes. It is possible that DoD personnel¹⁵³ or assets could be among first

responders to an emergency or disaster (e.g., an event near a DoD installation). In such a case, DoD

personnel and assets might be employed pursuant to immediate response authority per DoDD 3025.18

before a larger Federal response is orchestrated under the NRF. Figure 2-4 below illustrates the

process for local requests for assistance following a Stafford Act declaration and under IRA. Judge

advocates should be familiar with and prepared to advise on the various authorities under which the

Department of Defense may provide assistance to non-Federal entities.

¹⁴⁹ Id.

¹⁵⁰ Id. at 4e.

¹⁵¹ CHIEF NATIONAL GUARD BUREAU, INST. 3000.04, NATIONAL GUARD BUREAU DOMESTIC OPERATIONS (Jan. 24, 2018)

para. 4.a. [hereinafter CNGBI 3000.04].

¹⁵² DoDD 3025.18, supra note 150, at para. 4.j.

¹⁵³ Under 10 U.S.C. § 12304a, the Secretary of Defense may involuntarily order military reserve members and units to

active duty to support a Governor’s request for assistance in response to an emergency or major disaster under the Stafford

Act.

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CHAPTER 3

STATUS AND RELATIONSHIPS BETWEEN COMPONENTS

RESPONDING TO DOMESTIC INCIDENTS

KEY REFERENCES:

• Department of Defense Instruction (DoDI) 1235.12 - Accessing the Reserve Component, June

7, 2016, incorporating Change 1, February 28, 2017.

• DoDI 6025.13 - Medical Quality Assurance (MQA) and Clinical Quality Management in the

Military Health System (MHS), February 17, 2011, incorporating Change 2, April 1, 2020.

• DoDI 1215.13 - Ready Reserve Member Participation Policy, May 5, 2015.

• DoDI 1215.06 - Uniform Reserve, Training and Retirement Categories for the Reserve

Component, March 11, 2014, incorporating Change 1, May 19, 2015.

• Department of Defense Direction (DoDD) 1200.17 - Managing the Reserve Components as an

Operational Force, October 29, 2008.

• DoDD 5124.10- Assistant Secretary of Defense for Manpower and Reserve Affairs, March 14,

2018.

A. Introduction

This chapter discusses the various Service components and the importance of their designated status to

the missions they perform. The Reserve Component (RC), which is comprised of the reserve of the

various Services and the National Guard (NG) of States, plays a significant role in domestic support

operations. The purpose of the RC is to provide trained and qualified persons available for active duty

in time of war, national emergency, or for other national security requirements.¹ The RC has unique

personnel/duty categories that are important to understand because they not only determine what

benefits (e.g., medical and retirement) and protections (e.g., Federal Tort Claims Act or similar liability

rules) RC members have, but they also determine the different types of duties that Service member

may perform. The Assistant Secretary of Defense for Manpower and Reserve Affairs (ASD (M&RA))

is responsible for the supervision of RC affairs in the Department of Defense, and establishes the

directives that provide guidance on RC activation, mobilization, and training.²

Judge advocates practicing domestic operational law should also be familiar with the structure and

roles of the U.S. Coast Guard, the NG in a non-Federal status, and the Civil Air Patrol because these

entities have unique roles in domestic operations and will often work jointly with the Department of

Defense during domestic civil support missions. For example, in addition to being a branch of the U.S.

Armed Forces, the Coast Guard is also a Federal law enforcement agency and has the responsibility to

act as a lead agency for numerous domestic missions including environmental response, maritime

search and rescue, and maritime migrant interdiction.³ Additionally, while in a non-Federal status, the

Air and Army NG have different authorities and capabilities in domestic missions. Finally, the Civil

10 U.S.C. § 10102 (2018).

² U.S. DEP’T OF DEFENSE, DIR 5124.10, ASSISTANT SECRETARY OF DEFENSE FOR MANPOWER AND RESERVE AFFAIRS (14

Mar. 2018).

³ 14 U.S.C. §§ 102, 103 (2018).

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Air Patrol, a nonprofit corporation, also serves as an auxiliary to the United States Air Force.⁴

Understanding the roles of these entities ahead of time will assist judge advocates during future joint

operations.

B. Reserve Component

The RC consists of the Army NG of the United States (ARNGUS), the Army Reserve, the Naval

Reserve, the Marine Corps Reserve, the Air NG of the United States (ANGUS), the Air Force Reserve,

and the Coast Guard Reserve.⁵ Members of the RC are a true reflection and extension of civilian

society. The defense of the United States is dependent upon the contributions of these citizens who

prepare for active service during peacetime and enter active duty during times of national emergency.

U.S. Army Reserve (USAR)⁶

The USAR’s mission is to meet Department of the Army contingency operations and mobilization

requirements.⁷ The Army Reserve makes up 20 percent of the Army’s organized units, but provides

half of the Army’s combat support, and 25 percent of the Army’s mobilization base expansion

capability.⁸

U.S. Air Force Reserve (USAFR)⁹

The USAFR is composed of 35 wings that report to one of 3 Numbered Air Forces (NAFs).¹⁰ With

just over 10 percent of the Air Force’s manpower, the USAFR performs more than 30 percent of all

Air Force missions.¹¹ Like all of the other RCs, the role of the USAFR is to provide trained and ready

forces to support its parent service. Yet the USAFR also has several unique missions. For example,

10 U.S.C. § 9492 (2018).

10 U.S.C. § 10101 (2018).

⁶ U.S. DEPT’ OF ARMY, REG. 140-1, MISSION, ORGANIZATION, AND TRAINING (20 Jan. 2004) [hereinafter AR 140-1]; U.S.

DEP’T OF ARMY, REG. 140-10, ASSIGNMENTS, ATTACHMENTS, DETAILS, AND TRANSFERS (25 Apr. 2018); U.S. DEP’T OF

ARMY, REG. 135-18, THE ACTIVE GUARD RESERVE PROGRAM (11 Oct. 2019); U.S. DEP’T OF ARMY, REG. 135-200, ACTIVE

DUTY FOR MISSIONS, PROJECTS, AND TRAINING FOR RESERVE COMPONENT SOLDIERS, 26 Sept. 2017). 1994).

⁷ AR 140-1, supra note 6, para. 1-8.

⁸ America’s Army Reserve, ARMY RESERVE, http://www.usar.army.mil/About-Us/ (last visited June 25, 2020).

⁹ U.S. DEP’T OF AIR FORCE, INSTR. 36-2110, TOTAL FORCE ASSIGNMENTS (5 Oct. 2018); U.S. DEP’T OF AIR FORCE, INSTR.

36-2619, ACTIVE DUTY OPERATIONAL SUPPORT (ADOS)—ACTIVE COMPONENT (AC) MAN-DAY PROGRAM (25 Nov.

2019); U.S. DEP’T OF AIR FORCE, INSTR., 36-2136, RESERVE PERSONNEL PARTICIPATION (6 Sept. 2019).

¹⁰ Command Structure, U.S. AIR FORCE RESERVE, https://www.afreserve.com/about (last visited April 5, 2021).

The unit program of the USAFR is called the “Category A” program. Personnel perform a minimum of one weekend of

inactive duty training every month, referred to as a unit training assembly (UTA), and two weeks of active duty (annual

training) for pay and points each fiscal year. The “Category B” program is the individual mobilization augmentee (IMA)

program consisting of individual reservists assigned to major commands, field operating agencies, joint organizations,

direct reporting units and outside agencies. Although some commands allow training with other units in the member’s

local area, this decision is made on a case-by-case basis by the individual command. Inactive duty training periods for pay

and points are usually performed during the week in increments of four IDTs per quarter. A day is worth two IDT points.

Members also perform a 12-14 day paid active duty training tour annually with one point awarded for each day. In the

“Category E” program, personnel do not earn pay for their service, but they do earn retirement points. Examples of this are

service with the Civil Air Patrol Assistance Program and the Chaplain reinforcement designees.

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the 731st Airlift Squadron, assigned to the 302nd Airlift Wing, Peterson Air Force Base, Colorado, is

trained in the use of modular airborne firefighting systems that support local, State, and Federal

agencies during wildland fire response.¹² Additionally, the 53rd Weather Reconnaissance Squadron at

Keesler Air Force Base, Mississippi, performs hurricane reconnaissance exercises over the Atlantic,

Pacific, Caribbean, and Gulf of Mexico and is the only DoD unit tasked to perform weather

reconnaissance in support of the Department of Commerce.¹³

U.S. Naval Reserve (USNR)¹⁴

The Naval Reserve is composed of both commissioned units (self-contained, deployable assets with

both personnel and mission equipment) and augmentation units (non-hardware units that provide

trained manpower to active Navy units). Typically, members of the U.S. Naval Reserve (USNR) serve

one weekend a month and an additional two weeks per year. However, members may also serve

fulltime as Navy Full-Time Support or Navy Individual Augmentees. USNR unique missions include

operation of a Mine Countermeasure Ships, Mobile Inshore Undersea Warfare Units, Helicopter

Warfare Support Squadrons, and Navy Expeditionary forces such as Seabees and Cargo Handlers.

U.S. Marine Corps Reserve (USMCR)¹⁵

The Marine Corps Reserve is composed of one Marine division, one Marine air wing, one service

support group, and a Marine Corps Reserve support command. Marine Forces Reserve is the

headquarters command for roughly 100,000 members of the USMCR.¹⁶ Unique units in this reserve

branch include Civil Affairs Groups and Air-Naval Gunfire Liaison Companies.

U.S. Coast Guard Reserve (USCGR)¹⁷

The USCGR, like its active duty counterpart, is an agency within the Department of Homeland

Security. Under Title 14 and Title 10 of the United States Code, the Coast Guard is at all times an

armed force, as well as a law enforcement agency. As an armed force, the Coast Guard is required to

maintain a state of readiness to function as a specialized service in the Navy in time of war or upon

Presidential declaration. The Coast Guard, discussed more below, is a unique member of Joint Forces

involved in civil support missions because of its mix of military, civil law enforcement, and regulatory

authorities that allow it to respond to a wide variety of threats at home and abroad.

¹² Modular Airborne Fire Fighting System (MAFFS), 302ND AIRLIFT WING, http://www.302aw.afrc.af.mil/About-Us/Fact-

Sheets/Display/Article/627167/modular-airborne-fire-fighting-system-maffs/ (last visited June 25, 2020).

53^rd Weather Reconnaissance Squadron Hurricane Hunters, 403RD WING (Mar. 23, 2011),

http://www.403wg.afrc.af.mil/About/Fact-Sheets/Display/Article/192529/53rd-weather-reconnaissance-squadron-

hurricane-hunters/.

¹⁴ U.S. DEP’T OF NAVY, CHIEF OF NAVAL OPS, INSTR. 1001.20D, STANDARDIZED POLICY AND PROCEDURE FOR THE ACTIVE

DUTY FOR OPERATIONAL SUPPORT PROGRAMS (20 Feb. 2020).

¹⁵ U.S. MARINE CORPS, ORDER 1001.52K, MANAGEMENT OF THE ACTIVE RESERVE (AR) SUPPORT TO THE UNITED STATES

MARINE CORPS RESERVE (15 Feb. 2019); U.S. MARINE CORPS, ORDER 1001.59A, ACTIVE DUTY FOR OPERATIONAL

SUPPORT (ADOS) IN SUPPORT OF THE TOTAL FORCE (19 Jan. 2011).

¹⁶ MARFORRES Media Information, U.S. MARINE CORPS FORCES RESERVE,

https://www.marforres.marines.mil/About/Media-Info/ (last visited June 25, 2020).

¹⁷ U.S. COAST GUARD, COMMANDANT INST. M1001.28C, RESERVE POLICY MANUAL, (Dec. 2016).

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Coast Guard reservists may be called in response to serious natural or man-made disasters, accidents,

or catastrophes such as hurricanes, earthquakes, tornadoes, or floods. The Secretary of Homeland

Security has the authority to order members of the Coast Guard Ready Reserve to active duty without

their consent in a domestic emergency.¹⁸ They may be used for not more than 120 days in any two-

year period to augment the Regular Coast Guard. Coast Guard reservists perform unique missions as

well. Among the most important is the staffing of Guard Port Security Units (PSUs)—specialized

deployable security units that have served both domestically and abroad during times of war.¹⁹

Additionally, under 10 U.S.C. § 12302, the USCGR provided key support to Operation Iraqi Freedom

and Operation Enduring Freedom.²⁰

NG of the United States (NGUS)

a. Overview

The terms Army NG of the United States (ARNGUS) and Air NG of the United States (ANGUS) refer

to the NG as a RC of their respective service.²¹ The terms “Federal service” and “Federalized” are

applied to NG members and units when ordered to active duty in their RC status or called into Federal

service in their militia status under various sections of Title 10 of the U.S. Code.²²

The terms “Army NG”(ARNG) and “Air NG” (ANG) refer to the Federally-recognized (and usually

Federally trained and funded under Title 32, U.S. Code) organized militia of the various States—in

other words, members of the NG in a “State status” pursuant to Article I, Section 8, Clause 16 of the

Constitution.²³ The ARNG and ANG train for their Federal military missions according to

congressionally-established disciplines under Title 32 of the U.S. Code, and they are under State

control. ARNG/ANG members also take oaths to obey their respective governors and abide by State

law.²⁴ Upon enlistment/commissioning in the Army and Air NG, members simultaneously become

members of the ARNGUS or ANGUS respectively, and thus may be called into Federal service.

Determining whether a NG member is in a State or Federal status can be critical to defining

their roles and responsibilities. Status is also the primary factor for determining the applicability of

law for such issues as benefits, protections, and liabilities. For instance, members of the NG only

become subject to the Uniform Code of Military Justice (UCMJ) when Federalized (serving on active

duty under Title 10); while in a State status they are subject to their respective State codes of military

¹⁸ See 14 U.S.C. § 3713 (2018).

¹⁹ U.S. COAST GUARD PORT SECURITY UNIT HISTORY, https://media.defense.gov/2017/Jun/25/2001768454/-1/-1/0/USCG-

PORT-SECURITY-UNIT-HISTORY.PDF (last visited Oct 27, 2020).

²⁰ The Center for Naval Analyses (CNA), upon request of the U.S. Coast Guard Historian, compiled a summary of Coast

Guard operations in Operation Iraqi Freedom. See BASIL TRIPSAS, ET AL., COAST GUARD OPERATIONS DURING OPERATION

IRAQI FREEDOM (2004), https://media.defense.gov/2017/Jul/01/2001772261/-1/-1/0/OIF_D0010862.PDF (last visited Apr.

5, 2021).

10 U.S.C. §§ 101(c), 10101 (2018). Per 10 U.S.C. §§ 10105 and 10111 (2018), the Army National Guard of the United

States (ARNGUS) and Air National Guard of the United States (ANGUS) specifically consist of (1) Federally recognized

units and organizations of the ARNG/ANG, and (2) members of the ARNG/ANG who are also members of the Army/Air

Force Reserves.

²² See 10 U.S.C. chs. 13, 1211 (2018).

²³ See 10 U.S.C. § 101 (2018); 32 U.S.C. §§ 301, 307 (2018).

²⁴ See 32 U.S.C. §§ 304, 312 (2018).

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justice. Additionally, some laws, such as the Posse Comitatus Act (PCA) only apply to the NG when

they are in a Title 10 status. NG members are usually relieved from duty in the NG when on Federal

active duty as a member of the NGUS under 32 U.S.C. § 325. However, per the National Defense

Appropriations Act for Fiscal Year 2004, 32 U.S.C. § 325 was amended to allow Federalized NG

officers to retain command authority over State forces with the approval of POTUS and the consent of

the Governor.²⁵

Guard personnel in Title 10 and Title 32 status receive Federal pay and are covered under the Federal

Torts Claims Act.²⁶ Title 10 personnel always receive Federal military retirement credit for the

performance of duty. It is helpful to keep in mind that the determination of whether the NG is in

Federal or State service does not rest on the entity that funds the activity, but rather which entity has

command and control.

b. History

Congress created the organized militia (i.e., the NG) in 1903,²⁷ and further strengthened its

organization and training with The National Defense Act of 1916.²⁸ However, during WWI, members

of the NG were still drafted to serve during wartime. As a result, Congress amended the National

Defense Act in 1933 to establish the dual status of the NG, creating the “two overlapping but distinct

organizations” - the NG of the various States and the NG of the United States.²⁹ Members of the NG

would be relieved from their militia status while on Federal status, but would revert back to State status

at the conclusion of their Federal service. In other words, this statute created the “dual enlistment”

requirement that we know today.³⁰

c. Federal Missions

Like the other RCs, ARNGUS/ANGUS³¹ members and units integrate with the Active Component as

part of a total force capability for responding to a wide range of national defense missions. To become

an ARNGUS or ANGUS member, the Service member or Service member’s unit must be “Federally

recognized;”³² and to be Federally recognized, the Service member or Service member’s unit must

²⁵ Section (G)(6)(a) of this chapter and section (A)(6) of chapter 2 discuss Dual Status Commanders in more detail.

²⁶ See 32 C.F.R. § 536.97 (2012).

²⁷ Military Act of 1903 (Dick Act), 57 Pub. L. No. 33, 32 Stat. 775. See also Perpich v. Dep’t of Def., 496 U.S. 334, 342

(1990).

²⁸ National Defense Act of 1916, 64 Pub. L. 85. See also Perpich, 496 U.S. 334, 343-44.

²⁹ National Guard Act of 1933, 73 Pub. L. 64, § 18. See also Perpich, 496 U.S. 334, 345-46.

³⁰ This is a system that the Perpich Court recognized as a statutory creation, causing a member of the militia to be relieved

from State status for the “entire period of Federal service.” Perpich, 496 U.S. 334, 345-346.

³¹ When ANG members enter Title 10 active duty, they are transferred from their ANG units and assigned to the Air

National Guard Readiness Center (ANGRC), either directly or to a detachment of the ANGRC created for the purpose of

deploying forces in support of an active duty mission. The ANGRC is a Field Operating Agency (FOA) of HQ USAF that

executes NGB policy for the ANG and ANGUS and exercises elements of command and control over ANGUS units and

members. It is a Title 10 organization with a 32 U.S.C. § 104 commander appointed on G-series orders. The ANGRC

commander, currently a brigadier general, also serves as the Deputy Director of the ANG Directorate and is on Title 10

orders. See U.S. DEP’T OF AIR FORCE, INSTR. 10-402, MOBILIZATION PLANNING, (8 Mar. 2018). (Guidance Memorandum 7

Oct. 2020), https://static.e-publishing.af.mil/production/1/af_a3/publication/afi10-402/afi10-402.pdf (last visited October

27, 2020). [hereinafter AFI 10-402].

10 U.S.C. §§ 10105, 10111, 10503(7), 12201, 12211, 12212 (2018); 32 U.S.C. § 105(b) (2018).

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meet prescribed Federal standards.³³ NG units or members may be ordered to Federal active duty

either

(1) under various provisions of Title 10 (e.g., partial mobilization, volunteer duty, or pre-

planned Combatant Commander support)³⁴ as members of the ARNGUS or ANGUS;³⁵ or (2) pursuant

to the power of Congress to call out the militia to enforce Federal law, suppress insurrections, or repel

invasions. Under the latter authority the NG is “called” to duty as part of the militia of the United

States.³⁶ Congress has given the President the authority to call the NG to active duty for these

purposes.³⁷ As discussed in section (G)(2) of this chapter, the NG can also be utilized for “Federal

missions” in a Title 32 status under certain conditions. Authorized duty under 32 U.S.C. § 502(f)

includes support of operations at the request of the President or Secretary of Defense, for example,

natural disaster response and assistance to the Department of Homeland Security on the Southwest

border.

d. Other Title 10 Duty

In addition to duties performed when Federalized under the aforementioned authorities, members of

the NG serve in a full-time Title 10 status in other ways. Members in this category include members

of the NG Bureau (NGB), U.S. Property and Fiscal Officers (USPFO) in each State serving the NG,³⁸

and any other NG members serving a tour of duty under Title 10 in support of NGB, Major

Commands, or other “seats of government” tours.

(1) NG Bureau (NGB)

The NGB is designated under Title 10 as a “joint activity” of the Department of Defense, serving as

the NG channel of communications between the Army and Air Force and the fifty-four States and

territories.³⁹ While the NGB serves as the coordination, administrative, policy, and logistical center

for the ARNG and the ANG, NGB does not command and control either the Army or Air NG.

Pursuant to its charter, NGB is responsible for, among other things, implementing Army and Air Force

guidance, prescribing and monitoring training discipline and requirements, and supervising and

administering the budgets of the ARNG and ANG.⁴⁰

Through the 2012 National Defense Authorization Act, the Chief, NGB (CNGB), a four-star general,

became a member of the Joint Chiefs of Staff with responsibilities advising the President, the National

Security Council, Homeland Security Council, and the Secretary of Defense.⁴¹ As a member of the

³³ See NATIONAL GUARD BUREAU, REG. 10-1, ORGANIZATION AND FEDERAL RECOGNITION OF ARMY NATIONAL GUARD

UNITS (22 Nov. 2002); U.S. DEP’T OF AIR FORCE, INSTR. 38-101, MANPOWER AND ORGANIZATION (29 Aug. 2019).

³⁴ 10 U.S.C §§ 12302, 12304b (2018); see also U.S. DEP’T OF DEF., INSTR. 1215.06, UNIFORM RESERVE, TRAINING, AND

RETIREMENT CATEGORIES FOR THE RESERVE COMPONENTS app. to encl. 4 (11 Mar. 2014) (C1, 19 May 2015).

³⁵ U.S. CONST. art. 1, § 8, cl. 12; Perpich, 496 U.S. at 334; 10 U.S.C. §§ 12301-12304 (2018).

³⁶ U.S. CONST. art. I, § 8, cl. 15; 10 U.S.C. ch. 13 (these statutes also include the use of the Armed Forces of which the

NGUS is part); 10 U.S.C. § 12406 (2018). Although these statutes are in Title 10 of the U.S. Code, members “called up”

under these provisions retain their militia status.

10 U.S.C. Ch. 13 (2018).

32 U.S.C. § 708 (2018).

10 U.S.C. § 10501 (2018). The “54,” as they are often called, include the fifty States, Puerto Rico, Guam, U.S. Virgin

Islands, and the District of Columbia.

⁴⁰ DEP’T OF DEFENSE, DIR. 5105.77, NATIONAL GUARD BUREAU (NGB) (30 Oct. 2015) (C1, 10 Oct. 2017).

10 U.S.C. § 151 (2018).

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Joint Chiefs, CNGB is responsible for matters involving non-Federalized NG forces in support of

homeland defense and civil support missions.⁴² CNGB also serves as the principal advisor on all NG

matters to the Secretaries of the Army and Air Force and to the Army and Air Force Chiefs of Staff.⁴³

CNGB has executive agent responsibility for planning and coordinating the execution of NG military

support operations. The Director, ARNG, and the Director, ANG, are responsible to the CNGB and

assist in executing the functions of NGB as they relate to their respective branches. The Chief

Counsel’s office at NGB provides legal advice and assistance to the CNGB, the Directors of the Army

and Air NGs, and to the full-time judge advocates at the State level. The Chief Counsel’s office

normally employs a joint staff of military and civilian attorneys in a wide variety of disciplines,

including administrative law, contract and fiscal law, international and operational law, environmental

law, labor law, legislation, and litigation.

(2)

U.S. Property and Fiscal Officers (USPFO)

Each State has a USPFO. As Title 10 officers assigned to the NGB, a USPFO is detailed for duty to a

States and is accountable for all Federal funds and property provided to the NG of each State.⁴⁴ The

USPFO and his staff also perform functions relating to supply, transportation, internal review, data

processing, contracting, and financial support for the State NG. ⁴⁵ When required, the USPFO staff

can support AC or other RC forces on a reimbursable basis.

e. Other NG Authorities for Duty

Members of the NG perform Inactive Duty Training (IDT) and Annual Training (AT) in a Title 32

status. They can also perform Active Duty for Operational Support (ADOS) in a Title 10 status to

support the ANG and ARNG at Federal headquarters levels.⁴⁶ As noted above, some “AGR” tours are

also in a Title 10 status. They also perform ADOS in a Title 10 status to support Active Component

requirements. Army and Air Force appropriations fund these missions.⁴⁷

C. Reserve Component Categories

There are three Reserve categories: Ready Reserve, Standby Reserve, and Retired Reserve. Each

member of the NG and Reserve is assigned within one of these categories. All members of the Army

10 U.S.C. § 10502 (2018).

⁴³ Id.

32 U.S.C. 708 (2018).

⁴⁵ NATIONAL GUARD BUREAU REG. 130-6/AIR NATIONAL GUARD INSTRUCTION 36-2, UNITED STATES PROPERTY AND

FISCAL OFFICER APPOINTMENT, DUTIES, AND RESPONSIBILITIES (1 Jul. 2007).

⁴⁶ See U.S. DEP’T OF ARMY, REG. 135-200, ACTIVE DUTY FOR MISSIONS, PROJECTS, AND TRAINING FOR RESERVE

COMPONENT SOLDIERS, ch. 6 (26 Sept. 2017).

⁴⁷ See id. Note that ch. 2, § 521 of the FY 2001 National Defense Authorization Act, exempts reserve officers on the

reserve active-status list (RASL) serving on active duty for three years or less from placement on the active-duty list

(ADL). Previously, these soldiers were added to the ADL for promotion.

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NG and Air NG, including those in the Inactive NG (ING), are in the Ready Reserve or Retired

Reserve.⁴⁸

Ready Reserve

The Ready Reserve consists of three subgroups: the Selected Reserve, the Individual Ready Reserve,

and the Inactive NG. These are units and individuals subject to order to active duty to augment the

Active Forces during a time of war or national emergency.⁴⁹ This chapter will primarily address the

Selected Reserve.

a. Selected Reserve

The Selected Reserve consists of Soldiers assigned to Reserve Component units, the Individual

Mobilization Augmentation (IMA) Program, the Drilling Individual Mobilization Augmentation

(DIMA) Program, and the Active Guard Reserve (AGR) Program. These individuals and units

essential to wartime missions and have priority for training and equipment over other RC categories.

(1) Drilling Unit Reservists

Sometimes called Troop Program Units (TPU), these units consist of members assigned to Tables of

Organization and Equipment or Tables of Distribution and Allowances who normally perform at least

48 Inactive Duty Training (IDT) assemblies and not less than 15 days, exclusive of travel time, of

Annual Training (AT) each year. In the alternative, they may perform Active Duty for Training (ADT)

for no more than 30 days each year, unless otherwise specifically prescribed by the Secretary of

Defense.⁵⁰

(2) Individual Mobilization Augmentees and Drilling Individual Mobilization

Augmentees

IMAs and DIMAs are RC members in a Selected Reserve status and not attached to an organized

Reserve unit. The IMA Program function is to provide qualified soldiers to fill pre-designated

mobilization required positions. IMAs are assigned to AC organizations or Selective Service System

positions that must be filled to support mobilization requirements, contingency operations, operations

other than war, or other specialized or technical requirements. Drilling IMA positions are identified as

critical elements for mobilization during a Presidential Reserve Call-up (PRC) requiring an incumbent

to maintain an even higher level of proficiency than a regular IMA Soldier. Soldiers assigned to these

positions are authorized to perform 48 paid IDT periods per year. All IMAs must perform a minimum

of 12 days of AT each year.⁵¹

⁴⁸ U.S. DEP’T OF DEFENSE, INST. 1215.06, UNIFORM RESERVE TRAINING AND RETIREMENT CATEGORIES, para. E5.1 (11

Mar. 2014) (C2, 19 May 2105) [hereinafter DoDI 1215.06].

⁴⁹ Id. para. E.5.1.1. These individuals and units may be involuntarily ordered to active duty during war or national

emergency under the authority of 10 U.S.C. §§ 12301, 12302 (2018) and 14 U.S.C. § 3713 (2018).

⁵⁰ U.S. DEP’T OF DEFENSE, INST. 1215.13, RESERVE COMPONENT MEMBER PARTICIPATION POLICY encl. 3, para. (1)(b)(2)

(5 May 2015).

⁵¹ DoDI 1215.06, supra note 48, encl. 3, para. (3)(a)(2). The Army National Guard and the Air National Guard do not

have IMA programs.

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(3) Active Guard and Reserve (AGR) Program

The AGR Program consists of Soldiers performing active duty or full-time NG duty (FTNGD) for 180

days or more for the purpose of organizing, administering, recruiting, instructing, or training the

Reserves.

b. Individual Ready Reserve (IRR)

The IRR is a pool of pre-trained individuals who have already served in Active Component units or in

the Selected Reserve and have some part of their Military Service Obligation (MSO) remaining. Some

members volunteer to remain in the IRR beyond their MSO or contractual obligation and participate in

programs providing a variety of professional assignments and opportunities for earning retirement

points and military benefits.⁵² IRR members are subject to involuntary active duty and fulfillment of

mobilization requirements.

c. The Inactive NG (ING)

The ING consists of NG enlisted personnel in an inactive status in the Ready Reserve, not in the

Selected Reserve, and attached to a specific NG unit. These individuals must muster once a year with

their unit, but they do not participate in training activities. They may not train for points or pay and are

not eligible for promotion.⁵³

2. Standby Reserve

The Standby Reserve consists of personnel who are maintaining their military affiliation without being

in the Ready Reserve, but have been designated key civilian employees, or have a temporary hardship

or disability. They are not required to perform training and are not part of units. The Standby Reserve

is a pool of trained individuals who may be mobilized as needed to fill manpower needs in specific

skills.⁵⁴

3. Retired Reserve

This category consists of all Reserve personnel transferred to the Retired Reserve. These individuals

may voluntarily train with or without pay.⁵⁵ All members retired for having completed the requisite

⁵² Id. encl. 5, para. (2)(b). The IRR also may include personnel participating in officer training programs, including

Merchant Marine Academy cadets, enlisted members awaiting IADT (except for those in the National Guard) who are not

authorized to perform IDT, and members of the Delayed Entry Program. Id.

⁵³ Id. encl. 5, para. (2)(c). The Air National Guard does not have an inactive status. Officers may not be transferred to the

ING. See 32 U.S.C. §303 (2018).

⁵⁴ DoDI 1215.06, supra note 49, encl. 5, para. 3. The Standby Reserve consists of the active status list and the inactive

status list categories. Members designated as key employees and personnel who have not having fulfilled their statutory

military service obligation, or temporarily assigned for hardship reasons intending to return to the Ready Reserve, are on

the active status list. Those members who are not required to remain in an active program, but who retain Reserve

affiliation in a non-participating status and whose skill may be of future use to the Armed Force are on the inactive status

list. These members cannot participate in prescribed training and are not eligible for pay or promotion and do not accrue

credit for years of service. The Army National Guard and Air National Guard do not have a Standby Reserve.

⁵⁵ Id. encl. 5, para. (4)(a). The Retired Reserve consists of the following retired categories:

(1) Reserve members who

have completed the requisite qualifying years creditable for non-regular retired pay and are receiving retired pay (at, or

after, age 60); (2) those who have completed the requisite qualifying years creditable for non-regular retired pay and are not

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years of active duty service (Regular or Reserve) may be ordered to active duty when required by the

Secretary of the military department concerned.⁵⁶

D. Reserve Component Training and Support

The Service Secretaries and the Commandant of the Coast Guard are required to ensure trained and

qualified RC units and individuals are available for AD throughout the entire spectrum of

requirements, including war, national emergency, contingency operations, military operations other

than war, operational support, humanitarian operations, and at such other times as the national security

may require.⁵⁷ Each military department has its own regulations and instructions that implement these

training and support duties.⁵⁸

Training

All RC members receive training according to their assignment and required readiness levels. This

training may be conducted in Active Duty (AD), Inactive Duty for Training (IDT), or Full-Time NG

status.

a. Active Duty

Active Duty for Training (ADT) consists of structured individual and unit training, including on-the-

job training, or educational courses to RC members. It includes Initial Active Duty training (IADT),⁵⁹

Annual Training (AT), and Other Training Duty (OTD). Initial ADT includes basic military training

and technical skill training required for all enlisted accessions. AT is the minimum period of active

duty training that RC members must perform each year to satisfy the training requirements associated

with their RC assignment. By DoD policy, members of the Selected Reserve must perform AT. For

all members of Selected Reserve units, except for those in the NG, that training is not less than 14

days, and not less than 12 days for the Coast Guard Reserve. IMAs and DIMAs must perform 12 days

of AT each year and NG units must perform full-time military training for at least 15 days each year.

OTD is used to provide all other structured training, including on-the-job training and attendance at

schools. ADT is funded by the RC, but may support active component operational requirements and

missions.⁶⁰

yet 60 years of age, or are age 60 and have not applied for non-regular retirement pay; (3) those members retired for

physical disability; (4) members who have completed 20 years of service creditable for regular retired pay, or are 30

percent or more disabled and otherwise qualified; (5) Reserve members who have completed the requisite years of active

service and are receiving regular retired or retainer pay (regular enlisted personnel of the Navy and Marine Corps with 20 to

30 years of active Military Service who are transferred to the Fleet Naval Reserve or the Fleet Marine Corps Reserve on

retirement, until they have completed 30 years of total active and retired or retainer service, are not included in this

category); and (6) Reserve members drawing retired pay for other than age, service requirements, or physical disability.

10 U.S.C. § 688 (2018).

⁵⁷ DoDI 1215.06, supra note 48, encl. 2, para. 5. Combatant commanders have oversight responsibility for the training and

readiness of assigned guard and reserve forces.

⁵⁸ Id.

⁵⁹ Id. encl. 3, para. (3)(a).

⁶⁰ DoDI 1215.06, supra note 48, encl. 3, para. 2.

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b. Inactive Duty for Training (IDT)

This purpose of this training is to provide structured individual and unit training, or educational

courses to RC members. It includes regularly scheduled training periods, additional training periods,⁶¹

and equivalent training. The Reserve Component funds IDT.⁶²

c. Full-time NG Duty (FTNGD)

The NG performs their Federal training in a Title 32 status. Thus, while the various terms used above

also apply to the NG, there are variations. Full time NG duty (FTNGD) is training or other duty

(including support), other than inactive duty, performed by a member of the NG in a member’s status

as a member of the NG of a State, territory under 32 U.S.C. §§ 316, 502, 503, 504, 505. It is

considered “active service” pursuant to 10 U.S.C. § 101(d)(3), but it is not considered “active duty”

under Title 10. However, members on FTNGD generally receive the same pay and benefits as those

on active duty in accordance with 10 U.S.C. § 12602, subject to some exceptions.⁶³ (For other reserve

components, some of the categories above are considered “active duty.”) In 2006, as a result of the

increasing use of the NG for domestic missions of national importance, such as the response to

Hurricane Katrina, Congress amended 32 U.S.C. § 502(f) to expressly authorize the use of the NG for

“[s]upport of operations or missions undertaken by the member’s unit at the request of the President or

Secretary of Defense.”⁶⁴

Support

RC members may be placed on Active Duty Other than for Training (ADOT), which includes the

categories of Active Duty for Operational Support (ADOS), Active Guard and Reserve (AGR) duty,

and involuntary AD. Support may also be provided during FTNGD, discussed above.⁶⁵

a. Active Duty for Operational Support (ADOS)

The purpose of ADOS is to temporarily provide the necessary skilled manpower assets to support

existing or emerging requirements. Accordingly, total cumulative ADOS (and FTNGD) time per

service member is limited to 1,095 days within the previous 1,460 days before the Service member is

⁶¹ Additional IDT periods are for the use of drilling Reservists who are not military Technicians. They include additional

training periods (ATPs) for units, components of units, and individuals for accomplishing additional required training;

additional flying and flight training periods (AFTPs) for primary aircrew members for conducting aircrew training and

combat crew qualification training; and Readiness management periods (RMPs) to support the following functions in

preparing units for training: the ongoing day-to-day operation of the unit, accomplishing unit administration, training

preparation, support activities, and maintenance functions. Id. encl. 3, para. (2)(a)(3).

⁶² Id. encl. 3, para. 2. Paid IDT periods cannot be under 4 hours. A member may not perform more than two IDT periods

in any calendar day. In addition, IDT for points only (without pay) cannot be less than 2 hours with a maximum of two

points authorized in any one-calendar day. Further, one retirement point in any one-calendar day can be granted for

attendance at a professional or trade convention, with a minimum of four hours.

⁶³ Some benefits statutes specifically exclude FTNGD, except when it meets certain conditions. See also 37 U.S.C. § 101

(2018) which defines active duty for purposes of that title as including FTNGD.

32 U.S.C. § 502(f)(2) (2018).

⁶⁵ DoDI 1215.06, supra note 48, encl. 3, para. 4.

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counted against active duty end strength.⁶⁶ The Active Component may fund ADOS to support AC

functions (ADOS-AC) or funded by the RC to support RC functions (ADOS-RC).⁶⁷

b. Active Guard/Reserve (AGR)

This duty is funded by the RC and performed by an RC member of the Army, Navy, Air Force, Marine

Corps, Coast Guard, or FTNGD performed by a member of the NG under an order to active duty or

FTNGD for a period of 180 days or more. Unless a statutory exception exists, the scope of duty for

AGRs is generally limited to organizing, administering, recruiting, instructing, or training the reserve

components.⁶⁸

c. Involuntary Active Duty (IAD)

IAD is used in support of military operations when the President or the Congress determines that RC

forces are required to augment the Active Component (AC). IAD is funded by the AC.⁶⁹

Military Technicians (Dual Status) (MT)⁷⁰

Military Technicians are Federal civilian employees under 5 U.S.C. § 3101 or 32 U.S.C. § 709(b) who

are required to maintain military membership in the Selected Reserve. These individuals also perform

administration and training for that Selected Reserve unit or maintenance and repair of supplies or

equipment issued to that unit. Military and civilian positions must be compatible. Military Technician

involvement with the NG is discussed further in section (G)(4)(b) of this chapter.

E. Mobilization/Activation of Reserve Component and Calling Up the Militia

The RC provides a full-spectrum operational capability in support of the national defense strategy.⁷¹

Various authorities exist to order RC members to active/full-time duty to meet varied operational

requirements. Such activations may be voluntary or involuntary. For major regional conflicts,

⁶⁶ Id. encl. 8, para. 5. It is important to note the so called “1095 Rule” is not a restriction preventing members who are on

ADOS orders from remaining on active duty for more than three years in a four-year period. As explained in DoDI

1215.06, the 1095 Rule is only a strength accounting and reporting requirement—not a limit that precludes the performance

of duty. Specifically, DoDI 1215.06, enclosure 8, paragraph (5)(b) states that, “Neither law nor DoD policy requires any

RC member to leave voluntary active duty under section 12301(d) (OS Duty) …after 1,095 days. However, consideration

will be given to documenting long-term tours as full-time requirement billets (AC, AGR, or civilian).”

⁶⁷ For additional information on Army ADOS and FTNGD for Operational Support within the Army, as well as relevant

DoD references, see ASSISTANT SECRETARY OF THE ARMY MEMORANDUM TO DEPUTY OF CHIEF OF STAFF G-1, POLICY FOR

MANAGEMENT OF RESERVE COMPONENT SOLDIERS ON ACTIVE DUTY FOR OPERATIONAL SUPPORT AND FULL-TIME

NATIONAL GUARD DUTY FOR OPERATIONAL SUPPORT, (21 Feb. 2008) available at:

https://www.armyg1.army.mil/MilitaryPersonnel/Hyperlinks/Adobe%20Files/ASAMRA%20Memo%20dtd%2020080221.

pdf.

10 U.S.C. §§ 101(d)(6)(A), 12310 (2018).

⁶⁹ DoDI 1215.06, supra note 48, encl. 3, para. (b)(3). See also 10 U.S.C. §§ 12301, 12302, 12304 (2018); 14 U.S.C. §

3713 (2018).

10 U.S.C. § 10216 (2018).

⁷¹ U.S. DEP’T OF DEFENSE, INST. 1235.12, ACCESSING THE RESERVE COMPONENT para. (1)(a) (7 June 2016) (C1, 28 Feb.

2017) [hereinafter DoDI 1235.12].

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national emergencies and other crises, access to RC units and individuals through an order to AD

without their consent is assumed. When RC members are involuntarily Federalized, they will be kept

on AD “no longer than operationally necessary,” subject to limitations imposed by the authorizing

statute (e.g., under 10 U.S.C. §12302, no more than 24 continuous months).⁷²

Although the terms “Federalization” and “mobilization” are sometimes used interchangeably to

describe the process that “Federalizes” members of the RC, the terms have different meanings.

Activation is an order to active duty, for units and individuals, (other than for training) in the Federal

service pursuant to statutory authority granted to the President, Congress, or the service secretaries.⁷³

Reservists can be “Federalized” involuntarily or voluntarily (members of the NG also need the consent

of their respective Governors). Mobilization is the process of bringing all national resources to a state

of readiness for war or national emergency; it includes activating the RC.⁷⁴ Levels of mobilization

include selective mobilization, partial mobilization, full mobilization, and total mobilization.

Therefore, it is more helpful to use the term “Federalize” when referring to placing a member of the

RC on AD rather than using the more encompassing term “mobilize.” The statutes below provide

authority for activating reservists, calling the militia into Federal service, and ordering reservists to

active duty voluntarily.⁷⁵

Full Mobilization (10 U.S.C. § 12301(a))

A full mobilization occurs through the duration of a war or emergency (plus six months). This section

may only be invoked when there is a Congressional declaration of national emergency or war, or other

authorization in law.

Partial Mobilization (10 U.S.C § 12302(a))

A presidential declaration of national emergency or “when otherwise authorized by law” allows the

involuntary partial mobilization of up to one million members of the Ready Reserve for up to two

years.

“Any [Ready Reserve] unit, and any member not assigned to a unit organized to serve as a unit”

may be mobilized under this authority.

Presidential Reserve Call-up (PRC) (10 U.S.C§ 12304)

PRC authority permits the involuntary activation of up to 200,000 Selected Reserves members for up

to 365 days by the President.⁷⁶ Such service must be for other than training and may not exceed 365

days. This statute authorizes ordering members of the RC to active duty without their consent and

without declaration of war or national emergency for “operations other than domestic disasters.” The

statute provides two exceptions to the “operations other than domestic disasters” restriction: operations

⁷² Id.

⁷³ See generally id.; JOINT CHIEFS OF STAFF, JOINT PUB. 4-05, JOINT MOBILIZATION PLANNING (23 Oct. 2018).

⁷⁴ DoDI 1235.12, supra note 71.

⁷⁵ Occasionally older cases, regulations, and instructions will reference former versions of these statutes and it is helpful to

know the previous citations: In Title 10 of the U.S. Code, § 672(a) is now codified at § 12301(a), § 672(b) is now codified

at § 12301(b), § 672(d) is now codified at § 12301(d), § 673 is now codified at § 12302, § 673(b) is now codified at §

12304, and § 3500 and § 8500 are now codified at § 12406.

⁷⁶ These troops are excluded from active duty end strength calculations.

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involving a use or threatened use of a weapon of mass destruction, and a terrorist attack or threatened

terrorist attack in the United States that results, or could result, in significant loss of life or property.

Invasions and Rebellions (10 U.S.C. § 12406)

Under 10 U.S.C. § 12406, the President can Federalize the NG under three circumstances: (1) if the

United States or any U.S. State or territory is invaded or is in danger of invasion by a foreign nation;

(2) there is a rebellion or danger of rebellion against the U.S. Government; or (3) the President is

unable to execute U.S. laws without active forces. Any orders for these purposes are to be issued

through the Governors of the States, or, in the case of the District of Columbia NG, the Commanding

General.

Insurrection Act (10 U.S.C. § 251-255)

10 U.S.C. § 251

If there is an insurrection in a State, the President, at the request of the State’s legislature, or the

Governor if the legislature cannot be convened, may call NGs of other States into Federal service as

well as use the Federal military to suppress the insurrection.

10 U.S.C. § 252

Whenever the President considers that unlawful obstructions, combinations, or assemblages or

rebellion against authority of United States makes it impracticable to enforce the laws of the United

States in any State by judicial proceedings, the President may call into Federal service the militia of

any State and use the Federal military to enforce the laws or suppress the rebellion. Such authority

was exercised in Arkansas in 1957, Mississippi in 1962, and Alabama in 1963.

10 U.S.C. § 253

The President can use the NG and/or the Federal military to suppress insurrection, domestic violence,

unlawful combination, or conspiracy if: (a) it so hinders the execution of law of that State and of the

United States and it deprives citizens of constitutional rights (e.g., due process); or (b) it opposes or

obstructs the execution of laws or impedes the course of justice. In the event of the deprivation of

rights, the State is deemed to have denied its citizens equal protection of laws.

15-Day Involuntary Federal Active Duty (10 U.S.C. § 12301(b))

The Service Secretaries may order “any unit and any member not assigned to a unit organized to serve

as a unit” to a period of duty not to exceed 15 days (with the consent of the State’s Governor, or, in the

case of the District of Columbia NG, the Commanding General).

Voluntary Federal Active Duty (10 U.S.C. § 12301(d))

An individual can be ordered (by an authority designated by the Secretary concerned) to active duty

with the consent of the individual (and, for members of the NG, with the consent of the State’s

Governor or, in the case of the District of Columbia, the Commanding General) for an unlimited period

of time. Congress authorizes the maximum number of RC members permitted to be on active duty

under this section in Sec. 414 of each National Defense Authorization Act.

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Medical Care (10 U.S.C. §§ 12301(h) and 12322)

Reservists may be ordered to active duty for medical care, evaluation, or to complete a health care

study.

Reservists Recalled for Domestic Disaster and Emergency Response (10 U.S.C. §

12304a)

The Secretary of Defense may order Army Reservists, Navy Reservists, Marine Corps Reservists, or

Air Force Reservists, without their consent, onto active duty for no more than 120 days to respond to a

major disaster or emergency under the Stafford Act.⁷⁷

10. Active Duty for Preplanned Missions in Support of the Combatant Commands (10

U.S.C. 12304b)

Service Secretaries may order members of the Selected Reserve (including NG), without their consent,

onto active duty for no more than 365 days to “augment the active forces for a preplanned mission in

support of a combatant command.”

F. United States Coast Guard⁷⁸

Per 14 U.S.C. §§ 101 and 102, and 10 U.S.C. § 101(a)(4), the USCG is designated as both an Armed

Force and a Federal law enforcement agency. The Coast Guard is a principal Federal agency

responsible for maritime safety, security, and stewardship. As such, the Coast Guard protects vital

economic and security interests of the United States, including the safety and security of the maritime

public, natural and economic resources, the global maritime transportation system, and the integrity of

U.S. maritime borders.

The Coast Guard has 11 statutory missions divided into 2 categories: homeland security and non-

homeland security.⁷⁹ The homeland security missions are: (1) port, waterways and coastal security;

(2) drug interdiction; (3) migrant interdiction; (4) defense readiness; and (5) other law enforcement.

The non-homeland security missions include: (1) marine safety; (2) search and rescue; (3) aids to

navigation; (4) living marine resources; (5) marine environmental protection; and (6) ice operations.

Due to the multi-mission nature of the USCG, a member of the USCG performing a non-homeland

⁷⁷ The full text states:

“(a) Authority- When a Governor requests Federal assistance in responding to a major disaster or

emergency (as those terms are defined in section 102 of the Robert T. Stafford Disaster Relief and

Emergency Assistance Act (42 U.S.C. 5122)), the Secretary of Defense may, without the consent of the

member affected, order any unit, and any member not assigned to a unit organized to serve as a unit, of

the Army Reserve, Navy Reserve, Marine Corps Reserve, and Air Force Reserve to active duty for a

continuous period of not more than 120 days to respond to the Governor's request.” 10 U.S.C. § 12304a

(2018).

⁷⁸ Additional details about the history, unique missions, capabilities, and authorities of the Coast Guard are available in

UNITED STATES COAST GUARD, PUBLICATION 1, DOCTRINE FOR THE U.S. COAST GUARD (Feb. 2014).

6 U.S.C. § 468 (2018).

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security function, such as a recreational boating safety inspection, could have to perform a homeland

security function, such as drug interdiction, during the same mission.

Commonly referred to as “America’s maritime first responder,”⁸⁰ the USCG operates as part of the

Department of Homeland Security.⁸¹ Presently, approximately 41,000 personnel serve on active duty

in the USCG. ⁸² Upon a declaration of war, if Congress so directs in the declaration or when directed

by the President, the Coast Guard will operate as a Service in the Navy. When operating as a Service

in the Navy, the Coast Guard is subject to the orders of the Secretary of the Navy who may order

changes in Coast Guard operations to render them uniform with Navy operations.⁸³ The Coast Guard

operated as a component of the Navy in World War I and World War II. Both the Coast Guard and

Navy have the authority to exchange resources and information at all times. The Coast Guard receives

equipment, armament, and training support from the Navy, while providing the Navy vessels,

personnel, and equipment with vessel security and other support in Navy operations.

Occasionally, some are confused about the Coast Guard’s authority to operate as an Armed Force.

Some observers have assumed that the Coast Guard must switch from a Title 14 status to a Title 10

status when acting as an Armed Force of the United States, similar to the NG change from a State to a

Federal status depending on the mission. The Coast Guard is at all times both an “Armed Force” under

Title 10 and a “law enforcement agency” under Title 14. Said another way, the Coast Guard does not

switch “hats” between serving as part of the Armed Forces and serving as a law enforcement agency.

Instead, the Coast Guard performs both functions simultaneously.

As discussed earlier in this chapter, the Coast Guard has a reserve component. Presently,

approximately 7,000 members of the Coast Guard comprise the total Coast Guard Ready Reserve.⁸⁴

Additionally, the Coast Guard Auxiliary is a civilian volunteer service, but one that is specifically

authorized to “assist the Coast Guard, as authorized by the Commandant, in performing any Coast

Guard function, power, duty, role, mission, or operation authorized by law.”⁸⁵ The Coast Guard

Auxiliary assists both the active duty and the reserve components of the Coast Guard in search and

rescue assistance missions, environmental protection, marine safety, boater safety education programs,

and patrolling/regulating regattas and marine events.⁸⁶

Unique to the Coast Guard as an Armed Force, the Coast Guard is authorized to use its personnel and

equipment to assist any Federal or State agency, to include Department of Defense, when the Coast

⁸⁰ UNITED STATES COAST GUARD, https://www.uscg.mil/ (last visited June 25, 2020).

6 U.S.C. § 468 (2018).

⁸² Workforce, U.S. COAST GUARD, https://www.work.uscg.mil/Workforce/ (last visited June 25, 2020) [hereinafter CG

Statistics].

14 U.S.C. § 103 (2018).

⁸⁴ CG Statistics, supra note 82.

14 U.S.C. § 3902 (2018).

⁸⁶ It is important to note Coast Guard Auxiliary members do not have law enforcement authority. Thus, they may not

directly issue letters of warning, notices of violation, or other civil penalties, nor may they participate in law enforcement

boardings. Operators supervising Auxiliary must ensure any assistance given is in accordance with the U.S. COAST GUARD,

COMMANDANT INSTR. 16798.3 (series), AUXILIARY OPERATIONS POLICY MANUAL. Despite this limitation, the Auxiliary

can and do provide tremendous assistance to the Coast Guard active component. During a domestic emergency or disaster,

Auxiliary members may be particularly helpful in staffing an incident or unified command post, as many of them have

received extensive training in National Incident Management System (NIMS) procedures.

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Guard assistance sought is of the type that the Coast Guard personnel or facilities are especially

qualified to provide.⁸⁷ Thus, Coast Guard units can be attached to the Department of Defense without

the entire Coast Guard being fully absorbed into the Navy under 14 U.S.C. § 103. In addition, 14

U.S.C. § 701 allows the Coast Guard to accept the assistance of any Federal agency in the performance

of any Coast Guard function. This unique assistance authority makes the Coast Guard a powerful

partner in domestic contingency operations.

Because the Coast Guard is at all times a Federal law enforcement agency and an Armed Force of the

United States, the Coast Guard has legal authority to conduct both Maritime Homeland Security Law

Enforcement (MHS) and Maritime Homeland Defense (MHD), depending on the circumstances.⁸⁸

Coast Guard units conducting MHS operations may find themselves in an MHD situation in a matter of

minutes. The ability to handle evolving scenarios as either a Federal law enforcement agency or as an

Armed Force offers the Coast Guard tremendous flexibility.

MHS is a Federal law enforcement mission carried out by domestic law enforcement authorities,

including the Coast Guard.⁸⁹ The mission is to protect the U.S. Maritime Domain and the U.S. Marine

Transportation System (MTS) and deny their use and exploitation by terrorists as a means for attacks

on U.S. territory, population, and critical infrastructure. As the lead Federal agency for MHS, the

Coast Guard engages in maritime surveillance, reconnaissance, tracking, and interdiction of threats to

the security of the United States, and responds to the consequences of such threats. Armed and

uniformed Coast Guard law enforcement operations ashore are limited to activities at waterfront

facilities, public and commercial structures adjacent to the marine environment, and, to the extent

necessary to protect life and property, in transit ashore between such facilities or structures.⁹⁰

G. NG of the Several States (ANG, ARNG)

Overview

Militia are authorized by the code and/or constitution of each State or territory within the United

States. The definition of “militia” in the United States Code includes both the organized and the

unorganized militia; the NG, along with the Naval Militia, is considered the organized militia.⁹¹ In the

Constitution, the President of the United States (POTUS) is the Commander in Chief of the militia

only when it is “called into actual service of the United States.”⁹² This section discusses the NG when

it is under the control of the Governor or in “State status,” i.e., Title 32 status or State Active Duty

14 U.S.C. § 701 (2018). The Coast Guard may provide such assistance with or without the requirement of

reimbursement. See 14 U.S.C. § 701(a) (2018).

⁸⁸ In the event of a threat or incident requiring the exercise of national self-defense, DoD, acting through U.S. Northern

Command (USNORTHCOM) and supported by other agencies, would take the lead in carrying out MHD operations, which

involves the protection of U.S. territory, domestic population, and critical infrastructure.

⁸⁹ The Coast Guard is required to perform Maritime Homeland Security law enforcement duties in support of the Ports and

Waterways Safety Act, the Espionage Act of 1917, the Magnuson Act of 1950, 33 C.F.R. § 6, Homeland Security

Presidential Directive 5 (HSPD-5), the National Security Strategy of the United States of America, the National Strategy

for Homeland Security, and The Coast Guard Maritime Strategy for Homeland Security.

⁹⁰ See 33 C.F.R. § 6 (2020).

10 U.S.C. § 246 (2018).

⁹² U.S. CONST. art. II, § 2, cl. 1.

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(SAD). In a State status, members of the NG are subject to the military code of the respective State to

which they belong.⁹³

Each of the States and territories has an Adjutant General (TAG) or equivalent (e.g., Commanding

General for the District of Columbia), a State officer whose rank may or may not be Federally

recognized.⁹⁴ The Governor of the State or the TAG (depending on State law) is the Commander in

Chief of the State military unless it is Federalized under Title 10 of the United States Code. In this

instance, POTUS serves as the Commander in Chief of the State NG.⁹⁵ Throughout the fifty States,

District of Columbia, U.S. Virgin Islands, Guam, and Puerto Rico (the “54”), there are roughly

107,100 members of the Air NG employed across 90 Air Wings.⁹⁶ In like fashion, there are roughly

335,500 members of the Army NG employed across 8 division headquarters, 27 brigade combat teams,

56 functional support brigades, 42 multifunctional brigades, 1 Security Force Assistance Brigade, and

2 Special Forces Groups.⁹⁷ Each State has a joint force headquarters (State JFHQ) to provide

command and control to its ANG and ARNG.

Title 32 Status

When performing duty pursuant to Title 32, U.S. Code, a NG member is under the command and

control of the State but paid with Federal funds. The majority of NG members perform weekend drills

of IDT once per month and AT two weeks per year. These traditional members of the NG are

commonly referred to as “M-Day” (Mobilization Day). Each year, M-Day Service members are

required to perform 48 IDT drills and 15 days of AT.⁹⁸ The operations of NG units in Title 32 status

are controlled by the individual States and supplemented by funding from Federal sources pursuant to

Federal regulations.⁹⁹ Federal recognition of NG units and associated funding is conditional upon the

unit continuing to meet applicable Federal standards.¹⁰⁰ ARNG and ANG Service members

performing duty in Title 32 status have Federal Tort Claims Act (FTCA) coverage as long as they are

acting within the scope of their Federal employment.

There are many instances of the NG performing operations (as opposed to training) in a Title 32 status

(e.g., post 9-11 airport security duty, Hurricane Katrina, Southwest Border operations, counter-drug

operations, and WMD-CST teams). The use of Title 32 duty for operational missions must be based

on statutory authority (for example, counter-drug authority at 32 U.S.C. § 112) or upon the request of

the President or the Secretary of Defense (see 32 U.S.C. § 502(f)(2)(A)). Ultimately, performing

Homeland Security missions in a Title 32 status, instead of a Title 10 status, may be preferable because

the Posse Comitatus Act (PCA) does not apply, NG troops can respond more rapidly because they are

⁹³ Pursuant to 32 U.S.C. § 327 (2018), the President or active duty commanders may convene State courts-martial. In

2003, Congress ordered the preparation of a model State code of military justice.

⁹⁴ The U.S. President is the Commander in Chief of the National Guard of the District of Columbia. See Exec. Order No.

11485, 34 Fed, Reg. 15411, (1 Oct. 1969) and Title 49, District of Columbia Code.

32 U.S.C. §§ 314, 325 (2018).

2020 National Guard Bureau Posture Statement, NAT’L GUARD BUREAU 18,

https://www.nationalguard.mil/portals/31/Documents/PostureStatements/2020-National-Guard-Bureau-Posture-

Statement.pdf (last visited June 25, 2020).

⁹⁷ Id. at 14.

32 U.S.C. § 502(a) (2018).

⁹⁹ See Illinois Nat’l Guard v. Fed. Labor Relations Auth,, 854 F.2d 1396, 1398 (D.C. Cir. 1988).

100

32 U.S.C. §§ 107-109 (2018).

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in the local area, and NG troops typically have more situational awareness in local, domestic areas than

their active duty counterparts. Furthermore, Homeland Security missions can enhance NG training

through “training by doing.” The benefits of performing operations under Title 32, instead of Title 10,

are continually been raised. Thus, various legislative proposals exist to modify Title 32 to improve this

capability.¹⁰¹

Ordinarily, NG personnel in a Title 32 status should not provide civil support to a State, such as

disaster assistance, unless such missions have legal authorization and receive funding. Accordingly,

NG members are often in a State Active Duty (SAD) status (funded by the State) when providing civil

support. If TAGs use NG members in a Title 32 status to perform civil support without appropriate

authority, the State may be required to reimburse the Federal Government for the Federal funds

expended during the operation.

State Active Duty (SAD)

Of the Armed Forces of the United States, only the NG has a status entitled State Active Duty;

performance of such duty is pursuant to State constitutions and statutes.¹⁰² SAD status has no

relationship to USAR/USAFR or Active Duty (AD). In a SAD status, States control their own NG

personnel, subject to the command and control of the respective Governor and Adjutant General. NG

units perform duties authorized by State law, such as responding to emergencies or natural disasters

(floods, hurricanes, fires), and are paid with State funds. Because NG units are subject to State control

unless Federalized under Title 10 of the United States Code, they are the primary military force that

will respond to local disasters and emergencies. For these types of operations, the Governor may

declare an emergency and call any State NG unit into SAD status. Governors can directly access and

utilize the Guard’s Federally-assigned aircraft, vehicles, and other equipment as long as the Federal

government is reimbursed for the use of fungible equipment and supplies such as fuel, food stocks, etc.

Federal funds are not obligated for any personnel or units performing SAD. However, if the President

declares a major disaster or an emergency after a Governor’s request for assistance under the Stafford

Act, then the State military department may be reimbursed through FEMA for the SAD pay and

allowances it has expended.¹⁰³

ANG/ARNG Personnel Categories

On any given day in a particular State, members of the NG serve in a variety of duty types such as

Active Guard/Reserve (AGR), Active Duty Operational Support (ADOS), Fulltime NG Duty

(FTNGD), Inactive Duty Training (IDT), and Annual Training (AT).

¹⁰¹ For example, H.R. 2073/S. 215, called “Guaranteeing a United and Resolute Defense Act of 2003,” set forth a

mechanism that allows centralized Federal funding and decentralized execution of National Guard homeland security

missions.

¹⁰² For example, ARIZ. CONSTITUTION, art. 5, § 3; ARIZ. REV. STAT. § 26-101 (2020) (Governor as commander-in-chief of

State military forces when not in Federal service); ARIZ. REV. STAT. § 26-121 (2020) (composition of militia); ARIZ. REV.

STAT. § 26-172 (2020) (mobilization of militia for emergencies and when necessary to protect life and property).

103

42 U.S.C. § 5121 (2018).

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a. Title 32 AGR

Every State NG has members of the Title 32 AGR program serving under 32 U.S.C. § 502(f). Section

101(d)(6)(a) of Title 10 of the U.S. Code defines “active Guard and Reserve duty” as “active duty” or

“full-time NG duty” for a period of 180 consecutive days or more for the purpose of “organizing,

administering, recruiting, instructing, or training the reserve components.”¹⁰⁴ Members of the Title 32

AGR program receive essentially the same benefits and pay as their active duty counterparts of the

same rank. Although they are required to perform drills with their units, they do not receive additional

pay to do so. These Service members may also be “Federalized” and placed in a Title 10 status under

appropriate sections of the Code.¹⁰⁵ There is a material difference between the AGR program under

Title 32 and the AGR program under Title 10. Members of the NG participating in the Title 10 AGR

program (ARNGUS, ANGUS) are performing in the service of the United States, whereas those in the

Title 32 AGR program (ARNG, ANG) are performing in the service of their State. Service in the Title

10 AGR program is discussed further in section (B)(6) of this chapter.

b. NG Federal Technicians (32 U.S.C. § 709)

Each State NG may employ persons as Technicians.¹⁰⁶ Technicians are Federal civilian employees

under the exclusive control of a State official, the Adjutant General who hires, fires, and supervises

them. In terms of their civilian employment pursuant to 32 U.S.C. § 709, they are military Technicians

(“excepted service” civilian employees) as defined in 10 U.S.C. § 10216 during the normal

workweek.¹⁰⁷ They must also maintain membership in a State NG and maintain Federal recognition in

the military grade associated with their Technician position.¹⁰⁸ Loss of NG membership terminates the

full-time Technician position.¹⁰⁹

In some States, NG Technicians are members of collective bargaining agreements. Their civilian job

positions correspond with their military rank and they wear military uniforms to work. When they

perform drills and other training, they are in a Title 32 status just like traditional members of the NG.

These members are also subject to “Federalization” under Title 10 and can be called to serve in a SAD

status.

In their civilian “excepted service” capacity, NG Technicians are responsible for organizing,

administering, instructing, or training the NG and for the maintenance and repair of supplies issued to

the NG or the Federal military. They are covered under the Federal Tort Claims Act. In their civilian

capacity, their participation in civil support operations is limited because any participation must fall

within the scope of their position as a NG Technician. To perform out of scope activities, the NG

Technician may be placed in a leave status and placed on SAD orders.

¹⁰⁴ See also U.S. DEP’T OF ARMY, REG. 135-18, THE ACTIVE GUARD RESERVE PROGRAM (11 Oct. 2019); NATIONAL

GUARD BUREAU, REG. 600-5, THE ACTIVE GUARD/RESERVE (AGR) PROGRAM, TITLE 32 FULL-TIME NATIONAL GUARD

DUTY (FTNGD) MANAGEMENT (21 Sept. 2015); and AIR FORCE NATIONAL GUARD, INSTR. 36-101, AIR NATIONAL GUARD

ACTIVE GUARD RESERVE (AGR) PROGRAM (3 June 2010).

¹⁰⁵ For a good discussion of FTNGD status, see ex rel. Karr v. Castle, 746 F. Supp. 1231, 1237 (Del. 1990).

106

32 U.S.C § 709 (2018).

¹⁰⁷ See Lopez v. Louisiana Nat’l Guard, 733 F. Supp. 1059, 1065 (E.D. La. 1990).

108

10 U.S.C. § 101(c)(3), (5) (2018).

¹⁰⁹ NATIONAL GUARD BUREAU, REG. 635-100, TERMINATION OF APPOINTMENT AND WITHDRAWAL OF FEDERAL

RECOGNITION, ch. 6 (8 Sep. 1978).

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NG Technicians also have the responsibility to train and perform general military duties with their unit

and to be available to enter active Federal service when their units are Federalized. In many cases,

State headquarters principal staff officers also serve as Technicians. Because their Technician and NG

roles are very similar, these staff officers play extremely important leadership roles in civil support

operations in their non-Technician status.¹¹⁰

c. Full Time NG Duty - Operational Support (FTNGD-OS)¹¹¹

If funding is available, NG units can place members of the NG (whether M-Day or Federal

Technicians) on FTNGD-OS orders (for as little as a day to as much as a year) to perform particular

functions necessary to support the NG. These orders are distinct from the “training” requirements of

NG members. Most members of the NG that participate in the counter-drug program are on Full Time

NG Duty - Counter Drug (FTNGD-CD) orders under 32 U.S.C. § 502(f). FTNGD-CD is similar to

FTNGD-OS but given a separate moniker because it is aligned against a specific statutory program

(i.e., 32 U.S.C. § 112). These members are also subject to “Federalization” under Title 10 and can also

be called to serve in SAD status.

d. State Civilian Employees

In addition to Federal Technicians, the State NG units employ civilians pursuant to Master Cooperative

Agreements (MCAs). These personnel are authorized to use vehicles, property, and equipment

provided to the ARNG by the Federal government to accomplish their duties under the MCA. Many

guard units employ State employees in security and in civil engineering. These employees may or may

not be members of the NG of that State. In other words, membership in the NG is not a condition of

their employment as it is for Federal Technicians.

“Traditional” NG Members

The majority of the members of the NG within a State are “traditional” members. In other words, they

hold civilian jobs in the community and are only in a military status when performing drill, training, or

other military duty. These members may also be called to serve in two other statuses: (1)

“Federalized” status under Title 10, and (2) SAD status under State law. Each member of the NG can

be placed into different personnel categories, one at a time. These categories are important when

determining matters such as command authority, benefits, discipline, and immunities.

Personnel with Unique HLS/HLD Missions

a. Weapons of Mass Destruction (WMD)/Civil Support Teams (CST)

Pursuant to 10 U.S.C. § 12310(c), WMD-CSTs support emergency preparedness programs to prepare

for or to respond to any emergency involving the use of a weapon of mass destruction. These DoD-

certified teams are State controlled because they perform duty pursuant to 32 U.S.C. § 502(f), although

their missions are congressionally mandated. WMD-CSTs are trained to support civil authorities at a

Chemical, Biological, Radiological, or Nuclear (CBRN) incident site by identifying the

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32 U.S.C. § 709 (2018).

¹¹¹ Similar to Full Time National Guard Duty previously described in section (D)(1)(c), above, but here specifically for

“operational support.”

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agents/substances, advising on responses, and otherwise assisting with requests for State support.

They are not first responders. Currently there are 57 full-time teams: at least one in every U.S. State,

the District of Columbia, Puerto Rico, Guam, and the U.S. Virgin Islands. By Federal statute, the

WMD-CST teams may not operate outside of the continental United States (OCONUS). Chapter 6 of

this Handbook discusses WMD-CSTs greater in depth.

b. NG CBRNE Enhanced Response Force Package (NG-CERFP)

The initial establishment of CERFPs placed at least one in each FEMA Region. There are currently 17

validated CERFPs.¹¹² NG-CERFPs typically use M-Day Soldiers to provide Governors or a combatant

commander with the capabilities to locate and extract victims from a contaminated area, provide

patient and casualty decontamination, and perform medical triage and treatment. These response

forces may provide support to civilian first responders within the first 6 to 72 hours after a CBRN

event. NG-CERFPs may operate in SAD, Title 32, and Title 10 statuses. It is important for the judge

advocate to know the deployed status of these forces if required to provide them legal advice. Chapter

6 of this Handbook contains further discussion on CERFPs.

6. Miscellaneous Domestic Response Areas

a. Command and Control - Dual-Status Commanders (DSCs)

Pursuant to the U.S. Constitution, the militia is under the exclusive command and control of the

Governor unless and until “called into Federal service” or otherwise Federalized as a Reserve

Component. Thus, Federal status military officers cannot exercise command and control over State

status NG members, nor can State status NG members exercise command and control over Federal

troops.¹¹³ Under most circumstances, a NG officer with commission in a State or National Guard is

relieved from their duty in their State’s NG while serving on Federal active duty (Title 10 orders)

pursuant to 32 U.S.C. § 325(a)(1); however, authorities pursuant to two statutes exist that authorize

one officer to achieve unity of effort by having the ability to serve in both a Federal and State chain of

command simultaneously. These “Dual-Status Commanders” (DSC)DSCs exercise command and

control over Service members in both Federal and State statuses, under strictly prescribed

circumstances, and their Federal and State authorities are exercised in a mutually exclusive manner.¹¹⁴

The dual-status command option provides unity of effort and enables the maintenance of a common

operating picture for both the Federal and State military chains of command. It is of critical

importance to remain cognizant of the fact that a DSC is either exercising command authorities on

¹¹² Homeland Response Force, NAT’L GUARD BUREAU,

http://www.nationalguard.mil/Portals/31/Resources/Fact%20Sheets/Homeland%20Response%20Force%20Fact%20Sheet

%20(Dec.%202017).pdf (last visited June 25, 2020).

¹¹³ See also Perpich v. Dep’t. of Def., 496 U.S. 334, 348 (1990).

¹¹⁴ Though not true military “command and control,” coordinating authority has been used by the USAF to allow a Federal

status officer to control Federal and State forces. The concept works because one commander tells his forces to obey the

orders of the other commander or risk discipline. The concept has been used while fighting wildfires and it has recently

been accepted as Air Force doctrine as a method of promoting “unity of effort between Active, Federalized Air National

Guard, Reserve, civilian, contract and Auxiliary Air Force personnel operating under Title 10 U.S. Code, and non-

Federalized Air National Guard forces operating under Title 32 U.S. Code or [S]tate [A]ctive [D]uty.” It must be noted that

others contend that coordinating authority cannot be used during operations but only for planning, referencing the definition

of coordinating authority in DOD TERMS, supra note 7, at 50. Many contend that a State status officer cannot use

coordinating authority to supervise Federal troops because of Federal supremacy.

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behalf of either the State or Federal chain of command; therefore, it is of the upmost importance that it

be clear which chain of command the DSC is issuing orders on behalf of.

The first of the DSC options can be exercised pursuant to 32 U.S.C. § 315, which allows a

commissioned officer in the Army and Air Force, with the permission of the President and the consent

of the State’s Governor, to accept a NG commission and be detailed to duty with the State’s NG.¹¹⁵

Although 32 U.S.C. § 104(d) allows the President to detail commissioned officers of the NG, the

Regular Army, or Regular Air Force to command Title 32 troops, this detailing would not give the

officer the ability to issue direct orders to those troops unless the commanding officer was also

commissioned in that State’s NG.¹¹⁶ This implementation of a the DSC, whereby a Federal Title 10

Army or Air Force officer receives a commission in a state or territorial State ANG or ARNG, has

been used sparingly and is sometimes referred to as a “reverse” DSC.

The most commonly used form of DSC occurs pursuant to 32 U.S.C. § 325(a)(2),¹¹⁷ which allows a

commissioned officer in a State’s NG to also serve on behalf of the Federal military as a DSC, so long

as the President grants the authority and the State’s Governor consents. A DSC serving pursuant to 32

U.S.C. § 325(a)(2) sometimes referred to as the “regular” DSC. On 14 April 2011, President Obama

delegated the Presidential functions and authority under both sections 325 and 315 to the Secretary of

Defense.

Required implementation documents for a DSC are a Secretary of Defense authorization,

Gubernatorial consent, and a Memorandum of Understanding (MOU) between the two mutually

exclusive Federal and State military commands outlining the responsibilities and authority of the

¹¹⁵ A 1998 legal opinion of the Office of the Judge Advocate General of the Air Force notes that State law will determine

whether a Title 10 officer who accepts such a commission may be placed in command of a non-Federalized unit. Op. JAG,

AF, 1998/20, (19 Feb. 1998) [hereinafter Op. JAG, AF, 1998/20]. The legal opinion also notes that such a determination is

not necessary for Federalized National Guard members serving in their own State. It also states that active duty officers, or

guard officers in a Title 10 status, placed in command of non-Federalized Guard units will be subject to “two simultaneous

chains of command,” a “situation that is neither legally precluded nor unusual.”

116

32 U.S.C. § 104(d) does not allow such an action if it would “displace” a “commanding officer of a unit organized

wholly with a [S]tate or territory.” Op. JAG, AF, 1998/20, supra note 117, opines that there would not be a displacement if

the Governor, or other State authority, of the affected State concurred with the detailing of the Regular Air Force officer.

¹¹⁷ Title 32 U.S.C. § 325 currently states:

32 U.S.C. § 325. Relief from National Guard duty when ordered to Active Duty

(a) Relief required.—(1) Except as provided in paragraph (2), each member of the Army National Guard of

the United States or the Air National Guard of the United States who is ordered to active duty is relieved from

duty in the National Guard of his State or Territory, or of Puerto Rico, or the District of Columbia, as the case

may be, from the effective date of his order to active duty until he is relieved from that duty.

(2) An officer of the Army National Guard of the United States or the Air National Guard of the United States

is not relieved from duty in the National Guard of his State or Territory, or of Puerto Rico or the District of

Columbia, under paragraph (1) while serving on active duty in command of a National Guard unit if—

(A) the President authorizes such service in both duty statuses; and

(B) the Governor of his State or Territory or Puerto Rico, or the Commanding General of the District of

Columbia National Guard, as the case may be, consents to such service in both duty statuses.

….

United States or the Air National Guard of the United States ordered to active duty shall be returned to their National Guard

status upon relief from that duty.

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DSC.¹¹⁸ The DSC may receive orders from the two chains of command, and they must recognize and

respect that the DSC exercises all authority in a completely mutually exclusive manner, i.e., either in a

Federal or State status but never in both statuses at the same time. In a State status, the DSC takes

orders from the Governor through the TAG of the State and may issue orders to NG forces serving in a

State status (i.e. Title 32 or State Active Duty). As a Federal officer activated under Title 10, the DSC

takes orders from the President or those Federal officers the President and Secretary of Defense have

directed to act on their behalf. When acting pursuant to their Federal commission, DSCs may issue

orders only to Federal forces.

Since a DSC holds both a State NG commission, as well as a Federal commission (Title 10), the Posse

Comitatus Act, the Federal Tort Claims Act, and the Uniform Code of Military Justice are relevant for

the DSC’s actions taken while exercising Federal chain of command authorities, while State law and

authorities would be applicable to situations where the DSC is exercising their State chain of command

authorities. So called “regular” Dual-Status Commanders pursuant to 32 U.S.C. § 325(a)(2) are placed

on a Title 10 orders for Federal pay and entitlements, while “reverse” DSCs pursuant to 32 U.S.C. §

315 continue to receive their pay and entitlements through their Federal military orders. There will be

an appointment memorandum from the Combatant Commander (usually the NORTHCOM

Commander, but also potentially the INDOPACOM Commander), as well as Title 10 orders

memorializing and documenting that the DSC has command authority of Federal military forces for the

mission for which they were appointed a DSC. Similarly, with regards to the requisite State

authorities, there should be a similar corresponding State Active Duty order (or other state

documentation pursuant to State law and State requirements) memorializing in writing that the officer

appointed as a DSC for the mission at hand also has command and other required authorities over NG

State forces on mission in that State. A DSC is only on orders for pay and benefits purposes under

their Title 10 orders.

Given the fact that a DSC has command authority for both Federal (Title 10) and State (Title 32 and

SAD) forces, the DSC needs staff officers from both the Federal and the State forces providing the

DSC with relevant and accurate advice as appropriate in respect to these separate chains of command

and applicable authorities. For example, when commanding Service members in a non-Federal status,

the DSC receives legal advice from a State legal advisor and when commanding Service members in a

Federal status, the DSC receives legal advice from a Federal legal advisor. Under most circumstances,

NORTHCOM will send a Title 10 Deputy Commander, along with the rest of a Joint Enabling

Capability (JEC) team to serve as the Federal (Title 10) staff for the DSC, and the State will have a

cadre of State NG staff officers serving in a similar capacity for the DSC on state chain of command

issues and responsibilities.

The DSC concept under 32 U.S.C. § 325 has been used since 2004 and is now the usual command and

control structure when Federal (Title 10) and State (Title 32 and SAD) forces are being employed in a

state or territory simultaneously supporting a mission.¹¹⁹ Section 515(c)(1) and (2) of the National

Defense Authorization Act for FY12 stated that the DSC construct should be the “usual and

¹¹⁸ Pre-coordinated Memorandums of Understanding between each State and the Department of Defense covering the

appointment and use of qualified and vetted National Guard DSC have been executed and are available through the

National Guard Bureau.

¹¹⁹ The DSC concept was used during the G8 Summit at Sea Island, Georgia, in June 2004. Since then, the DoD has

appointed DSCs for numerous domestic operations most recently the mission in support of the national response to

COVID-19.

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customary” command and control arrangement when the Federal Armed Forces and the State NG

forces are employed simultaneously in support of civil authorities in the United States, including for

missions involving a major disaster or emergency as those terms are defined in section 102 of the

Robert T. Stafford Disaster Relief and Emergency Assistance Act (42 U.S.C. § 5122 et seq.).¹²⁰

Additionally, when a major disaster or emergency occurs in any area subject to the laws of any State,

Territory, or the District of Columbia, the Governor of the State affected should be the principle civil

authority supported by the lead Federal agency and its supporting Federal entities. The Adjutant

General of the State military, or the appropriate person with delegated authority, should be the

principal military authority supported by the DSC when acting in his or her State capacity.

b. State law

State law provides the legal basis for each State NG. Moreover, State law provides the authority to

perform missions, the basis for pay and benefits, rules for the use of force, liability and immunity rules,

and military justice, just to name a few areas. Duty performed in a Title 32 status must also comply

with Federal laws and policies. Personnel in a Title 32 status also receive protections such as the

Federal Tort Claims Act (FTCA) and other Federal benefits.¹²¹ Additionally, Congress consented to

the Emergency Management Assistance Compact (EMAC) in 1996.¹²² Each State and the District of

Columbia has ratified EMAC.¹²³

Matters become more complicated when NG personnel cross a State border in a State status. It is then

important to remember to examine the law of both the “originating State” and “receiving State.” For

example, some State codes of military justice apply even when members of a State’s NG are

performing duty in another State.¹²⁴ Moreover, State law may dictate whether non-Federalized NG

units may enter or leave a State for duty, and when they can do so. For example, some States do not

allow armed NG units to enter their State without permission from the Governor or legislature.¹²⁵

Some States have specific authority that allows their militias to leave the State to perform duty.¹²⁶

Another very important issue to consider is that of professional licensing. Military health professionals

in a Title 10 status (physicians, dentists, clinical psychologists, nurses or others providing direct patient

care), properly licensed pursuant to 10 U.SC. § 1094, can practice in any DoD facility, any civilian

facility affiliated with DoD, or “any other location authorized by the Secretary of Defense,” to include

practice in a State, D.C., or commonwealth, territory, or possession of the United States regardless of

¹²⁰ It is important to note that despite a DSC being the “usual” arrangement in such situations, this language “does not limit,

in any way, the authorities of the President, the Secretary of Defense, or the Governor of any State to direct, control, and

prescribe command and control arrangements for forces under their command.” National Defense Authorization Act of

2012, Pub. L. No. 112-81, § 515(c), 125 Stat. 1395 (2011); 32 U.S.C. § 317 (2020).

121

28 U.S.C. § 2671 (2018). Members of the National Guard in a Title 32 status are also provided limited administrative

remedies under the National Guard Claims Act, 32 U.S.C. § 715 (2018).

¹²² Congress ratified the EMAC in October of 1996. See Pub. L. No. 104-321, 110 Stat. 3877 (1996) [hereinafter EMAC];

EMERGENCY MGMT. ASSISTANCE COMPACT https://www.emacweb.org/ (last visited April 5, 2021).

¹²³ A Congressionally sanctioned interstate compact is a Federal law subject to Federal construction. New York v. Hill,

528 U.S. 110, 111 (2000). Chapter 11, infra, contains a discussion on the impacts of the EMAC on rules for the Use of

Force for the National Guard.

¹²⁴ See, e.g., 44 OKLA. STAT. § 229 (2020).

¹²⁵ See, e.g., KY CONST. § 225; MONT. CONST., art. II, § 33; IDAHO CODE § 46-110 (2020); KAN. STAT.ANN. § 48-203

(2020).

¹²⁶ See, e.g., CONN. GEN. STAT. § 27-16 (2020); MISS. CODE ANN. § 33-7-7 (2020); N.Y. MIL. LAW § 22 (Consol. 2020).

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where actually licensed.¹²⁷ Arguably, this also applies to members of the NG who are in a Title 32

status. However, Service members in a Title 32 status must be acting within the scope of their

employment to receive FTCA protections for those actions. Thus, an analysis of their authority to

accomplish assigned tasks or duty is necessary.

For example, Federal law and directives allow Title 10 personnel to provide medical treatment to

civilians (not otherwise entitled to military medical care) during emergency situations.¹²⁸ The Stafford

Act does not provide that same authority to members of the NG in a State Active Duty status. Further,

under Article VI of the EMAC, out of state practitioners are considered “agents of the requesting State

for tort liability and immunity purposes, [and] no party State or its officers or employees rendering aid

in another State pursuant to this compact shall be liable on account of any act or omission in good

faith.”¹²⁹ Willful misconduct, gross negligence, or recklessness are outside the scope of the coverage

offered under EMAC. EMAC is further discussed in Chapter 11 of this Handbook.

The Good Samaritan Laws of each State, listed in Table 3-1 below, may also provide insight on the

additional protections that an out-of-State healthcare professional may have in another State.

State

Good Samaritan Legislation

Alabama

Ala. Code §§ 6-5-332 to 332.4

Alaska

Alaska Stat. §§ 09.65.090-191

Arizona

Ariz. Rev. Stat. § 32-1471

Arkansas

Ark. Code § 17-95-101

California

Cal. Health & Safety Code §

1799.102; Cal. Gov’t Code §

50086

Colorado

Colo. Rev. Stat. § 13-21-108

Connecticut

Conn. Gen. Stat. § 53-557b

Delaware

Del. Code tit. 16, §§ 6801-6802

District of

D.C. Code §§ 7-401 to 402

Columbia

Florida

Fla. Stat. § 768.13

¹²⁷ U.S. DEP’T OF DEF., INSTR. 6025.13, MEDICAL QUALITY ASSURANCE (MQA) AND CLINICAL QUALITY MANAGEMENT IN

THE MILITARY HEALTH SYSTEM (MHS) (17 Feb. 2011) (C2, 1 Apr. 2020).

¹²⁸ E.g., 42 U.S.C. § 5121 et seq. (2018).

¹²⁹ EMAC, supra note 123.

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Georgia

Ga. Code §§ 51-1-29 to 29.2

Guam

7 Guam Code §§ 16101-16107

Hawaii

Haw. Rev. Stat. § 663-1.5

Idaho

Idaho Code § 5-330

Illinois

745 Ill. Comp. Stat. 49

Indiana

Ind. Code §§ 34-30-12, 13.5

Iowa

Iowa Code § 613.17

Kansas

Kan. Stat. §§ 65-2891, 2891b

Kentucky

Ky. Rev. Stat. §§ 411.148,

311.668

Louisiana

La. Stat. § 9:2793-2793.9

Maine

Me. Stat. tit. 14, §164

Maryland

Md. Code, Cts. & Jud. Proc § 5-

603

Massachusetts

Mass. Gen. Laws ch. 112, § 12v

Michigan

Mich. Comp. Laws §§ 41.711a,

691.1501-1507

Minnesota

Minn. Stat. §§ 604A.01-.05

Mississippi

Miss. Code § 73-25-37

Missouri

Mo. Rev. Stat. § 537.037

Montana

Mont. Code § 27-1-714

Nebraska

Neb. Rev. Stat. § 25-21, 186

Nevada

Nev. Rev. Stat. § 41.500

New

N.H. Rev. Stat. §§ 508:12,

Hampshire

508.12c

New Jersey

N.J. Stat § 2A:62A-1

New Mexico

N.M. Stat. § 24-10-3

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New York

N.Y. Pub. Health Law § 3000-a,

3013

North

N.C. Gen. Stat. § 90-21.14

Carolina

North Dakota

N.D. Cent. Code § 90-21.14

Ohio

Ohio Rev. Code § 2305.23

Oklahoma

Okla. Stat. tit. 76, § 5, 5.1, 5.9

Oregon

Or. Rev. Stat. § 30.800

Pennsylvania

42 Pa. Cons. Stat §§ 8331, 8332

Puerto Rico

2009 P.R. Laws S.B. 1091

Rhode Island

9 R.I. Gen. Laws § 9-1-27.1

South

S.C. Code §15-1-310

Carolina

South Dakota

S.D. Codified Laws §§ 20-9-4 to

4.4, 20-9-3, 36-4A-26.3

Tennessee

Tenn. Code § 63-6-218

Texas

Tex. Civ. Prac. & Rem. Code §§

74.151-154

Utah

Utah Code §§ 26-8a-601, 58-13-

12 , 78b-4-501

Vermont

Vt. Stat. tit. 12, § 519

Virgin Islands

V.I. Code tit. 27, § 42

Virginia

Va. Code §§ 8.01-225 to 225.02,

8.01-225.3

Washington

Wash. Rev. Code §§ 4.24.300-

310

West Virginia

W. Va. Code § 55-7-15

Wisconsin

Wis. Stat. §§ 448.03, 895.48

Wyoming

Wyo. Stat. § 1-1-120

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Table 3-1. State Good Samaritan Legislation

c. The District of Columbia NG

In 1802, the Congress of the United States enacted legislation officially establishing the District of

Columbia (D.C.) Militia, which is now the D.C. NG (DCNG).¹³⁰ The modern DCNG is comprised of

a Joint Force Headquarters Army NG (DCARNG) and Air (DCANG) components. The overall

mission of the DCNG is to “provide mission-ready personnel and units for active duty in the armed

services in the time of war or national emergency.”¹³¹ In addition to the general civil support activities

performed by the NGs of other States and territories, the DCNG also “retains the mission as protector

of the District of Columbia,”¹³² which is not a State nor has a Governor.

In accordance with D.C. Code § 49-409, passed by Congress, the President of the United States is at all

times the Commander-in-Chief of the DCNG.¹³³ E.O. 11485 delegated Presidential authority to

command, supervise, administer, and control the DCNG in a militia status to the Secretary of

Defense.¹³⁴ By memorandum, the Secretary of Defense further delegated this authority as it pertains to

the DCARNG to the Secretary of the Army, and as it pertains to the DCANG to the Secretary of the

Air Force.¹³⁵ The Secretaries exercise this authority through the Commanding General of the DCNG.

Both Secretaries may further delegate this authority to their Assistant Secretary for Manpower and

Reserve Affairs. Last, and in accordance with the October 10, 1969 memorandum from the Secretary

of Defense to the Secretaries of the Army and Air Force, whenever the DCARNG or DCANG are used

in militia status to support civil authorities, the Secretary of the Army, through the Commanding

General, exercises operational command over the Army and Air NG elements.

In accordance with E.O. 11485 and D.C. Code § 49-301, command of DCNG military operations is

exercised through the Commanding General of the DCNG rather than through an Adjutant General, as

is the practice in all of the States. The President appoints the DCNG Commanding General.¹³⁶ An

officer appointed to serve as the Commanding General must be recognized as a general officer grade as

recognized by the U.S Senate. Last, in accordance with D.C. Code § 49-304, an Adjutant General may

also be assigned by the President. The Adjutant General is subordinate to and subject to the orders of

the Commanding General.

The D.C. Mayor has no formal command authority over the DCNG. As a matter of practice, whenever

the Mayor desires civil support from the DCNG, the Mayor submits a request to the Commanding

General, DCNG, who notifies the Secretary of the Army. Pursuant to E.O. 11485, the Department of

¹³⁰ U.S. Statutes at Large, 2:215, https://www.loc.gov/law/help/statutes-at-large/6th-congress/c6.pdf.

¹³¹ Mission and Vision, D.C. NAT’L GUARD, https://dc.ng.mil/About-Us/Mission-Vision/ (last visited June 25, 2020).

¹³² Id.

¹³³ D.C. CODE § 49-409 (2018).

¹³⁴ Exec. Order No. 11,485, 34 Fed. Reg. 15,411 (1 Oct. 1969).

¹³⁵ SEC’Y OF DEF. MEM., SUPERVISION AND CONTROL OF THE NATIONAL GUARD OF THE DISTRICT OF COLUMBIA (10 Oct.

1969).

¹³⁶ D.C. CODE § 49-301 (2018).

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Defense and the Attorney General, by consultation, establish law enforcement policies to be used by

DCNG military forces when aiding the civil authority of the District.

In his advice to the Secretary of Defense and the Secretary of the Army regarding employment of the

DCNG in support of civil authorities, the Attorney General routinely refers to D.C. Code § 49-404, as

authority for the DCNG in its status as a subset of the enrolled militia as defined by the D.C. Code to

aid civil authorities.

The DCNG performs missions in either a Title 10 or Title 32 status. Currently, the DCNG does not

have a State Active Duty status. Title 49 of the D.C. Code implements the District of Columbia Militia

Act of 1889.¹³⁷ It authorizes the Mayor, the U.S. Marshal for the District of Columbia, or the National

Capital Service Director, to request that the Commander-in-Chief order the militia to aid the civil

authorities in suppressing a public disturbance.¹³⁸ When the DCNG is mobilized under these

circumstances, it acts in a “militia status” on behalf of the District.

Historically, the DCNG provides civil support to the District in a Title 32 training status. However,

DCNG may provide civil support in a different duty status with approval by the Secretary of the Army

pursuant to the delegated authorities from Secretary of Defense.¹³⁹ The Secretary of the Army has

broad authority to determine what constitutes appropriate “training” for credit and compensation under

32 U.S.C. § 502(d)(3). The Comptroller General of the United States has also opined that, in view of

the Secretary’s broad discretion in this regard, there would be no objection should the Secretary

consider a State’s use of the NG for disaster relief as annual training under Title 32.¹⁴⁰ The Secretary

of the Army requested a decision as to whether appropriated funds for annual training are available for

disaster relief, whereby it was determined the disaster relief duty constituted proper and adequate

annual training. Provided the Secretaries concerned first determine that the duty in question (i.e.,

disaster relief) constitutes proper and adequate training for the units involved, the execution of such

duties in a Title 32 status and the payment of participating NG personnel from Title 32 appropriated

funds, is appropriate. Consequently, the fact that the performance of such a “training” mission

produces a collateral “operational” benefit does not render the mission objectionable.

Whenever service in a Title 32 status in support of the D.C. civil authorities may involve the exercise

of law enforcement-like functions, the Secretary of the Army and the Attorney General must consent to

the provision of such support. Consent to the support is subject to the Mayor’s designation of

members of the DCNG as special police (or “special privates”) pursuant to D.C. Code § 5-129.03.

This provision of the law allows the Mayor, upon “any emergency of riot, pestilence, invasion,

insurrection, or during any day of public election, ceremony, or celebration” to appoint from among

the citizens “special privates without pay,” who while so serving possess the powers and privileges,

and perform the duties of a District of Columbia Metropolitan Police Officer.¹⁴¹ When performing

such duties, DCNG personnel wear an emblem authorized by the Mayor and/or designated

¹³⁷ D.C. CODE, tit. 49 (2018).

¹³⁸ D.C. CODE § 49-103 (2018), https://code.dccouncil.us/dc/council/code/.

¹³⁹ SEC’Y OF DEF. MEM., SUPERVISION AND CONTROL OF THE NATIONAL GUARD OF THE DISTRICT OF COLUMBIA (10 Oct.

1969).

¹⁴⁰ National Guard—Pay, Etc., Entitlement—Disaster Relief Duty by State, B-176491, 52 Comp. Gen. 35 (1972).

¹⁴¹ D.C. CODE § 5-129.03 (2018). For example, the DCNG and other National Guard personnel in support of Presidential

Inaugurations have received this special status.

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representative. The designated representative is usually the General Counsel from the supported LEA.

Title 32 orders issued to DCNG personnel include authority to act under the provisions of Title 5 of the

D.C. Code. Although they have “special private” status, DCNG personnel remain under the command

and control of their superior military officers at all times. The Commanding General of the DCNG and

the Chief of the D.C. Metropolitan Police Department (DCMPD) coordinate their respective command

structures and personnel with a view towards maximizing unity of effort. The designation as special

private or special deputation is not limited to the DCMPD, it applies towards the other D.C. law

enforcement agencies (e.g. United States Marshal Service, National Park Service, and United States

Capital Police). However, law enforcement authority conferred is restricted to the jurisdiction of D.C.

and for a limited duration.

Although the chain of command of the DCNG runs through the Department of Defense to the

President, the applicability of the proscriptions of the PCA, 18 U.S.C. § 1385, bears comment.

Applicability of the PCA depends on the status of the Service member. For instance, if the Service

member is serving in a Title 10 status, then the member is considered part of the active component

Army or Air Force for PCA purposes and therefore subject to the PCA’s prohibition on participation in

the execution of civil laws. On the other hand, if the Service member is in a Title 32 status, the

member is not considered part of the active component Army or Air Force and thus not subject to PCA

restrictions. Whether in a Title 10 or Title 32 status, all members of the DCNG must comply with all

applicable Department of Defense directives and instructions.

Historically, the DCNG was mobilized in a Federalized status on limited occasions. Pursuant to 10

U.S.C. § 12301, the DCNG has been Federalized in support of operations such as Operations Desert

Storm, Desert Shield, Enduring Freedom, Iraqi Freedom, Noble Eagle, and Freedom Sentinel. In

addition, the Insurrection Act was employed to order the DCNG into active Federal service to

complement Federal forces deployed to quell the disorder associated with the rioting that ensued after

the death of Dr. Martin Luther King in April 1968. During First Amendment Demonstrations following

the death of George Floyd that erupted into civil unrest 31 May 2020 through 23 June 2020, although

the Insurrection Act was not invoked, the DCNG assistance was requested by U.S. Marshals, as well as

by DCMPD and the United States Park Police. Subsequently, the Secretary of Defense also requested

additional support from “out-of-state National Guard personnel" to protect Federal properties from

destruction or defacement; protection of Federal officials, employees, and law enforcement personnel

from harm or threat of bodily injury; and protection of Federal functions, such as Federal employees’

access to their workplaces, the free and safe movement of federal personnel through the city, and the

continued operation of the U.S. mails.¹⁴²

“Hip-Pocket” Activation or Changing Statuses of NG Personnel

Both the Air NG (ANG) and Army NG (ARNG) have personnel that switch from Title 32 (Federally

funded, State controlled) to Title 10 status (Federally funded and Federally controlled) in order to

perform Federal active duty service in furtherance of North American Aerospace Defense Command

(NORAD) and USNORTHCOM (N&NC) missions. Pursuant to 10 U.S.C. § 12301(d), individuals

who are members of a State NG may volunteer for Federal active duty in order to execute a Federal

mission. In order for a member to volunteer for Federal service, the applicable Governor, or their

designee, must consent to their NG Service member volunteering for Federal active duty service.

¹⁴² U.S. Department of Justice, U.S. Attorney General Memo, 9 June 2020.

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For ANG Service members supporting the N&NC federal missions, Title 32 Service members convert

to Title 10 automatically upon the occurrence of a specific Title 10 trigger from higher headquarters.

Colloquially referred to as “hip pocket” orders, through a series of delegations, both the Commander of

1st Air Force (AFNORTH) and the Continental United States NORAD Region (CONR) have received

authority to activate ANG members pursuant to 10 U.S.C. § 12301(d). 1st Air Force (1st AF, a

numbered Air Force in Air Combat Command) developed a process to instantaneously “Federalize”

ANG members who, upon the occurrence of a specified event, are called upon to perform NORAD

missions. This process automatically converts consenting members of the Air NG into a Title 10 status

upon the occurrence of a “triggering” event, known by 1st AF as an “air sovereignty event.”¹⁴³ On

June 11, 2003, authority “to order into Federal service . . . those members of [ANG] who have

volunteered to perform Federal active service in furtherance of the Federal mission” was delegated to

the Chief of Staff of the Air Force, who has the authority to re-delegate this authority to a MAJCOM

Commander, who can further delegate this authority.¹⁴⁴ This “hip pocket” process is now used for

other Air Force missions. In accordance with 10 U.S.C. §12301(d), for Service members performing

alert duties, the individual consent happens prior to performing the alert duty.

Prior to the activation of members, the State(s) consents on behalf of the Governor(s) via various State

Agreements. ANG Instruction (ANGI) 10-203 states that “units will have Title 10 activation authority

on-file for the alert mission being performed. This authority will be documented on Title 32 orders for

the stated alert mission. MOAs between gaining Title 10 authority and State officials are required.”

ANGI 10-203 in conjunction with 1^st Air Force Instruction 38-1 (1 AFI 38-1) prescribe command

relationships, policies and procedures for sovereignty operations, homeland defense and homeland

security events within assigned ANG units gained by CONR-1 AF. 1 AFI 38-1 applies to both the

NORAD missions of aerospace warning and control and the analogous homeland defense missions

conducted under the operational command of USNORTHCOM.

This process has been examined as a model for some ARNG missions, but at present is not utilized.

For ARNG missions, such as Ground-based Mid-course Defense (GMD), the “hip-pocket” orders

process described above is not authorized. Instead, ARNG Title 32 Service members performing Title

10 GMD missions convert from Title 32 status to Title 10 active duty upon arrival at their specified

federal duty location; they revert to Title 32 status when their commander releases them from Federal

duty. AMOA among the NG Bureau (NGB), U.S. Army Space and Missile Defense Command/Army

Strategic Command (USASMDC/ARSTRAT), and the participating States’ NGs, outlines the

specifics. The Secretary of the Army Memorandum on GMD operations also applies. Although the

100^th Brigade and its subordinate units are assigned to USASMDC/ARSTRAT, the units execute the

operational mission in support of USNORTHCOM. Unlike ANG units, an unusual fact about these

units is that both the Brigade and Battalion Commanders are “dual status” pursuant to 32 U.S.C. §

325(a)(2), and they can simultaneously command Title 10 personnel and Title 32 ARNG members

¹⁴³ See, e.g., ELEVENTH AIR FORCE, INSTR. 38-101, PERSONNEL STATUS WITHIN THE 176TH AIR CONTROL SQUADRON

(ANG) (14 Apr. 2005). This AFI outlines the status conversion process and defines an “air sovereignty event” as “any

event that involves the Federal mission of aerospace warning and control, and includes but is not limited to, the surveillance

of the assigned airspace, the identification of unknown aircraft, the initiation and authorization of an active air scramble,

and the control of aircraft engaged in an active air scramble or North American Aerospace Defense Command (NORAD)

mission.”

144

10 U.S.C. § 12301(d) (2018); MEMORANDUM: SECRETARY OF AIR FORCE DELEGATION OF AIR NATIONAL GUARD RE-

CALL AUTHORITY, dated 11 June 2003.

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assigned to the 100^th BDE or 49^th BN. The President, with the consent of the governors of Alaska,

Colorado, and California grants this authority.

e. Rules for the Use of Force (RUF)

State law will govern the rules for the use of force for members of the NG in a State status. Thus, the

rules for the use of force must adhere to State law. In some States, NG forces have the same authority

as peace officers, meaning that certain NG forces in their home State may follow RUF established for

peace officers within the State. A more detailed discussion of the RUF may be found in Chapters 10

and 11, infra.

H. Civil Air Patrol (CAP)

The CAP, a volunteer organization, is a Federally-chartered nonprofit corporation under 36 U.S.C. §

40301. It also functions as an auxiliary of the USAF in accordance with 10 U.S.C. § 9492.¹⁴⁵

Although the CAP is not a military organization, as the USAF auxiliary it performs non-combat

missions on behalf of DoD pursuant to statute and a Cooperative Agreement. The USAF provides

policy and oversight of the CAP in its auxiliary status. It can provide personnel, logistical, and

financial support and assistance. CAP missions are limited by internal and FA regulations, as well as

by those statutes that restrict activities of military organizations (e.g., PCA). Missions accomplished

by CAP in its auxiliary role normally include disaster relief, search and rescue, and counter-drug.

Authorities are contemplating changes to statutes, doctrine and policy to better incorporate the CAP

into the USNORTHCOM Military Assistance for Civil Authorities (MACA) force structure and

thereby allow the CAP to become more active in a broader range of homeland security missions.

The CAP is organized into eight geographical regions and performs three primary programs: (1)

emergency services (assisting Federal, State, and local agencies), (2) aerospace education, and (3)

cadet education. Although the USAF has overall responsibility for the CAP when it performs search

and rescue missions, the Army provides oversight for disaster relief missions. Civil Air Patrol-United

States Air Force (CAP-USAF) is located at Maxwell AFB in Montgomery, Alabama; an Air Force

judge advocate provides legal support to the Commander of CAP-USAF.

¹⁴⁵ See also U.S. DEP’T OF AIR FORCE, INSTR. 10-2701, ORGANIZATION AND FUNCTION OF THE CIVIL AIR PATROL (7 Aug.

2018); U.S. DEP’T OF AIR FORCE, INSTR. 10-2702, BOARD OF GOVERNORS OF THE CIVIL AIR PATROL (2 Jan. 2019), U.S.

DEP’T OF AIR FORCE, POL’Y DIR. 10-27, CIVIL AIR PATROL (2 July 2018); CIVIL AIR PATROL-UNITED STATES AIR FORCE,

INSTR. 10-2701, CIVIL AIR PATROL OPERATIONS AND TRAINING (3 Aug. 2007) (C1, 13 Jun. 2008).

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CHAPTER 4

MILITARY SUPPORT TO CIVILIAN LAW ENFORCEMENT

KEY REFERENCES:

•

10 U.S.C. §§ 271-284 - Military Support for Civilian Law Enforcement Agencies.

•

18 U.S.C. § 1385 - Use of Army and Air Force as posse comitatus (“The Posse Comitatus Act”

(PCA)).

• Department of Defense Instruction (DoDI) 3025.21 - Defense Support of Civilian Law

Enforcement Agencies, February 27, 2013, Incorporating Change 1, Effective February 8, 2019.

• Department of Defense Directive (DoDD) 3025.18 - Defense Support of Civil Authorities (DSCA),

December 29, 2010, Incorporating Change 2, March 19, 2018.

• DoDD 5200.27 - Acquisition of Information Concerning Persons and Organizations not Affiliated

with the Department of Defense, January 7, 1980.

• DoDD 5240.01 - DoD Intelligence Activities, August 27, 2007, Incorporating Change 3,

November 9, 2020.

• AFI 10-801 - Defense Support of Civil Authorities (DSCA), January 29, 2020.

• SECNAVINST 5820.7C - Cooperation with Civilian Law Enforcement Officials, January 26,

2006.

A. Introduction

U.S. military resources include specialized personnel, equipment, facilities, and training that may be

useful to civilian law enforcement agencies. The provision of DoD resources, however, must be

consistent with the limits Congress placed on military support to civilian law enforcement through the

Posse Comitatus Act (PCA) and other laws. Judge advocates must also weigh and advise on the

political sensitivity of employing U.S. military forces in law enforcement roles involving U.S.

civilians.

This chapter begins with a discussion of the PCA. It then discusses the applicable provisions of the

U.S. Code addressing military support to civilian law enforcement and the DoD regulations that

implement this guidance. Information relating specifically to counterdrug support is discussed

separately in the Chapter 7 due to the size and complexity of this DoD mission.

B. The Posse Comitatus Act

The primary statute restricting military support to civilian law enforcement is the PCA.¹ The PCA

states:

¹ Posse Comitatus Act, 18 U.S.C. § 1385 (2018). The phrase “posse comitatus” is literally translated from Latin as the

“power of the county” and is defined in common law to refer to all those over the age of 15 upon whom a sheriff could call

for assistance in preventing any type of civil disorder. See United States v. Hartley, 796 F.2d 112, 114, n.3 (5th Cir. 1986).

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Whoever, except in cases and under circumstances expressly authorized by the

Constitution or Act of Congress, willfully uses any part of the Army or the Air

Force as a posse comitatus or otherwise to execute the laws shall be fined under

this title or imprisoned not more than two years, or both.²

The PCA was enacted in 1878 primarily in response to the military presence in the South during

Reconstruction following the Civil War.³ This military presence increased during the bitter

presidential election of 1876, when the Republican candidate, Rutherford B. Hayes, defeated the

Democratic candidate, Samuel J. Tilden, by one electoral vote. Many historians attribute Hayes’s

victory to President Grant’s decision to send Federal troops for use by U.S. Marshals at polling places

in the States of South Carolina, Louisiana, and Florida. Hayes won the electoral votes of these hotly

contested States, possibly as a result of President Grant’s actions.⁴ Congress responded to these

actions by enacting the PCA in 1878.⁵

The intent of the PCA was to limit direct military involvement with civilian law enforcement, absent

congressional or constitutional authorization. The PCA is a criminal statute and violators are subject to

fine and/or imprisonment.⁶ The PCA does not, however, prohibit all military involvement with

civilian law enforcement. A considerable amount of military participation with civilian law

enforcement is permissible, either as indirect support or under one of the numerous PCA exceptions.

Chapter 15 of Title 10 U.S.C (§§ 271-284), 32 C.F.R. § 182, and DoDI 3025.21, Defense Support of

Civilian Law Enforcement Agencies,⁷ discussed below, provide guidance regarding restrictions the

PCA places on the military when supporting civilian law enforcement agencies.⁸

To Whom Does the PCA Apply?

On its face, the PCA only applies to active duty members of the Army and the Air Force. Accordingly,

Federal courts have consistently read the plain language of the PCA to limit its application to these two

² Id.

³ See, e.g., Matthew C. Hammond, The Posse Comitatus Act: A Principle in Need of Renewal, 75 WASH. U. L.Q. 953, 954

(1997) [hereinafter Hammond]; H.W.C. Furman, Restrictions Upon Use of the Army Imposed by the Posse Comitatus Act,

27 MIL. L. REV. 85, 94-95 (1960).

⁴ Hammond, supra note 3, at 954. The states of South Carolina, Louisiana, and Florida sent in double returns. The

electoral boards of these three states, which were dominated by Republicans, certified that the states had voted for Hayes

even though it was widely believed that each state had a majority of Democrats. The Democrats sent in their own returns,

which showed that Tilden won each of the three states. Congress, which held a Republican majority, eventually appointed

an electoral commission to recount the entire vote. Hayes was declared the winner by one electoral vote. Tilden won the

popular vote with 51 percent over Hayes’ 48 percent.

⁵ Id.

⁶ Although there are harsh penalties for violators of the PCA, courts have not yet found reason to allow for the exclusion of

evidence seized during a PCA violation. Courts have not found PCA violations pervasive enough to necessitate the

application of this sanction. See United States v. Wolffs, 594 F.2d 77, 85 (5th Cir. 1979); United States v. Al-Talib, 55

F.3d 923, 930 (4th Cir 1995); United States v. Griley, 814 F.2d 967, 976 (4th Cir. 1987).

⁷ U.S. DEP’T OF DEF., INSTR. 3025.21, DEFENSE SUPPORT OF CIVILIAN LAW ENFORCEMENT AGENCIES (27 Feb. 2013) (C1, 8

Feb. 2019) [hereinafter DoDI 3025.21].

⁸ U.S. DEP’T OF NAVY, SEC’Y NAVY INSTR. 5820.7C, COOPERATION WITH CIVILIAN LAW ENFORCEMENT OFFICIALS (26

Jan. 2006) [hereinafter SECNAVINST 5820.7C]; and U.S. DEP’T OF AIR FORCE, INSTR. 10-801, DEFENSE SUPPORT OF

CIVIL AUTHORITIES (29 Jan. 2020) [hereinafter AFI 10-801] implement DoDI 3025.21.

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services.⁹ However, in 2017, Congress directed the Secretary of Defense to promulgate regulations

that prohibit “direct participation by a member of the Army, Navy, Air Force, or Marine Corps in a

search, seizure, arrest, or other similar activity unless participation in such activity by such member is

otherwise authorized by law.”¹⁰ The current iteration of that regulation is DoDI 3025.21, Defense

Support of Civilian Law Enforcement Agencies.¹¹ It extends the congressional restrictions placed on

Army and Air Force activities through the PCA to the Navy and Marine Corps, as well.¹² While the

Coast Guard may operate in the Department of the Navy during time of war, at no time does the PCA

apply to the Coast Guard.¹³

The PCA also applies to Reserve¹⁴ members of the Army, Navy, Air Force, and Marine Corps who are

on active duty, active duty for training, or inactive duty training in a Title 10 duty status. Members of

the NG performing operational support duties,¹⁵ active duty for training, or inactive duty training in a

Title 32 duty status are not subject to the PCA. Only when members of the NG are in a Title 10 duty

status (Federal status) are they subject to the PCA. Members of the NG may also perform duties in a

State Active Duty (SAD) status and are not subject to PCA in that capacity.¹⁶ DoD civilian employees

are only subject to the prohibitions of the PCA and the DoDI 3025.21 if they are under the direct

control of a military officer.¹⁷

Finally, the PCA does not apply to a member of the active component Army, Navy, Air Force, or

Marine Corps when they are off-duty and acting in their private capacity. A Service member is not in

a private capacity if assistance is rendered to civilian law enforcement officials under the direction or

control of DoD authorities.¹⁸

⁹ See United States v. Yunis, 924 F.2d 1086, 1093 (D.C. Cir. 1991) (citing congressional record that earlier version of

measure expressly extended PCA to the Navy but final version deleted any mention of application to the Navy); United

States v. Roberts, 779 F. 2d 565 (9th Cir. 1986), cert. denied, 479 U.S. 839 (1986).

¹⁰ See 32 C.F.R. § 182.6 (2017); See also Hayes v. Hawes, 921 F.2d 100, 102-103 (10 U.S.C. § 375 makes the

proscriptions of 18 U.S.C. § 1385 applicable to the Navy). See also Yunis, 924 F.2d at 1094 (“Regulations issued under 10

U.S.C. § 375 require Navy compliance with the restrictions of the Posse Comitatus Act

”). Exceptions to this

prohibition as it applies to the Navy or Marine Corps may be granted by the Secretary of Defense or the Secretary of Navy

on a case-by-case basis. See DoDI 3025.21, supra note 6, encl. 3, para.3.

¹¹ See DoDI 3025.21, supra note 6.

¹² See DoDI 3025.21, supra note 6, encl. 1; see also SECNAVINST 5820.7C, supra note Error! Bookmark not defined.,

para. 8(b).

¹³ See 14 U.S.C. §§ 102, 522 (2018) which describes the Coast Guard’s role as a domestic law enforcement agency. The

specific authorities of the Coast Guard can be found infra in Chapter 3.

¹⁴ The Reserve includes Ready Reserve, Standby Reserve, and Retired Reserve. The Ready Reserve is units or individuals

liable for active duty as provided in 10 U.S.C. §§ 12301-12302. The Ready Reserve consists of: (1) the Selected Reserve,

including unit members assigned to Reserve organizations and performing drill periods and annual training, Individual

Mobilization Augmentees (IMA) performing drills and annual training assigned to Active component organizations, and

active guard and reserve (AGR) on full time active duty or full time National Guard duty in Reserve organizations; (2) the

Individual Ready Reserve (IRR); and (3) the inactive National Guard (ING). All members of the Selected Reserve are in an

active status.

10 U.S.C. §§ 10142-10144. See also U.S. DEP’T OF DEF., DIR. 1215.06, UNIFORM RESERVE, TRAINING, AND

RETIREMENT CATEGORIES FOR THE RESERVE COMPONENTS (11 Mar. 2014) (C1, 19 May 2015).

¹⁵ As per 32 U.S.C. § 502(f) (2018).

¹⁶ See infra Chapter 3 for a detailed discussion of National Guard and Reserve status.

¹⁷ DoDI 3025.21, supra note 6, encl. 3, para. 2.

¹⁸ Id.

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Military reference books and manuals (2009-2023, Volume 4) - page 5