Petition for Writ of Certiorari — Sajer v. Jorden

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Supreme Court, U.S, 2

86 1382 | CRTLED

IN THE SUPREME COURT EB 20 1987 7

OF THE UNITED STATEB JOSEPH F. SPANIOL, JR.

CLERK

October Term, 1986

GERALD SAJER, BRIGADIER GENERAL (PA),

THE ADJUTANT GENERAL, COMMONWEALTH OF

PENNSYLVANIA, et al.,

Petitioners

ULUS JORDEN, JR.,

Respondent

PETITION FOR WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

Le ROY S. ZIMMERMAN

Attorney General

By: THOMAS M. CROWLEY

Deputy Attorney General

Counsel of Record

JOHN G. KNORR, III

Senior Deputy Attorney General

ANDREW S. GORDON

Chief Deputy Attorney General

Chief, Litigation Section

Counsel for Petitioners

Office of Attorney General

Commonwealth of Pennsylvania

15th Floor, Strawberry Square

Harrisburg, PA 17120

(717) 783-1471

QUESTIONS PRESENTED FOR REVIEW

1. Whether a member of the

National Guard may maintain an action

for injunctive relief against his mili-

tary superiors to challenge disciplinary

action taken against him based on his

refusal to obey a facially valid mili-

tary order.

as Whether the Court of

Appeals' decision allowing such suits

for injunctive relief by military

personnel conflicts with decisions of

other Courts of Appeals.

TABLE OF CONTENTS

PAGE

QUESTIONS PRESENTED

FOR MEVEEM esc esaasesewesaesunnees 1

TABLE OF CITATIONS... cece eeseoes iv

PARTIES TO THE PROCEEDINGS......- l

OPINIONS 4s) ee eee ee ee Se 2

STATEMENT OF

PULL GE Eulis 6 64 6064 0606604666868 3

CONSTITUTIONAL PROVISIONS

44 8h ere er eee Se ee 4

STATUTES INVOLVED....esccccccsees 9

STATEMENT OF THE CASE...-.--eeeeee 9

REASONS FOR GRANTING

THE | th eee ae ee ee ee ee 20

Le THE COURT OF APPEALS'

DECISION WHICH ALLOWS

MEMBERS OF THE NATION-

AL GUARD TO ENJOIN

THEIR MILITARY SUPER-

IORS FROM TAKING

DISCIPLINARY ACTIONS

AGAINST THEM, INVOLVES

IMPORTANT ISSUES OF

FEDERAL LAW AND

MILITARY POLICY, AND

IS INCONSISTENT WITH

DECISIONS OF THIS

COURT .. .ccecenuneeseuneeus. 20

TABLE OF CONTENT

(Continued )

PAGE

2. THE COURT OF APPEALS'

DECISION IS IN DIRECT

CONFLICT WITH DECI-

SIONS OF OTHER COURTS

OF APrmmisc es ees eeeeeese 31

Dif. <_ikeee oe ké66 68688606068 35

APPENDIX:

ORDER OF THE COURT OF

APPEALS SUR PETITION FOR

REHEARING. eeeeoeee#ees#ser#seee#ee#eeee#es# ee la

ORDER OF THE COURT OF

APPEALS GRANTING APPEL-

LANT'S MOTION FOR LEAVE TO

FILE PETITION FOR REHEAR-

ING OUT OF TIME.....--cee0e2-5 4A

APPELLANT'S MOTION FOR

LEAVE TO FILE PETITION FOR

REHEARING OUT OF TIME........ 62a

APPELLANT'S PETITION FOR

CO 15a

OPINION OF THE PANEL OF

THE COURT OF APPEALS ........ 22a

MEMORANDUM OF DECISION OF

THE DISTRICT COURT OF

SEPTEMBER 24 a 1985 eeeeeee#ee#ke#e? @ 103a

-ili-

TABLE OF CITATIONS

CASES PAGE(S)

Bivens v. Six Unknown Named

Agents of Federal Bureau

of Narcotics, 403 U.S. 388

tog ¢ See ee ees | et

Brown v. Glines, 444 U.S. 648

(Re Ts bobbed keke bob ececseasc Ls 29

Chappell v. Wallace, 462 U.S.

296 e+ 3b Pp eee eee passim

Crawford v. Texas Army National

Guard, /94 F.2d 1034

Coe Cie BOG ctdcicecsvacse 31

Goldman v. Weinberger, No. 84-

L097 (MRECH 29, 1986) .cccsece 18, 29,

Feres v. United States, 340 U.S.

135 8. oye a ee 28

Frontiero v. Richardson, 411 U.S.

6// € i aes PRP rrr rrr ee ee 29

Jorden v. National Guard Bureau,

799 F.2d 99 (3d Cir. 1986)... 2, 16

Martelon v. Temple, 747 F.2d

1348 (10th Cir. 1984),

cert. denied, No. 84-1415

eo, “2 ie | Seer x

Orloff v. Willoughby, 345 U.S.

83 Sooo epee eee eee ee 28

-iy=

TABLE OF CITATIONS

(Continued )

CASES PAGF(S )

Parker v. Levy, 417 U.S. 733

SLES) RSPR Tre ee e*eeneee . 18, 29

Rostker v. Goldberg, 453 U.S. 57

ee epweprryerrr TT ese eee e*ee# 18, 29

Stanley v. United States,

786 F.2d 1490 (11th

Cir. 1986), cert. granted,

United States v. Stanley,

No. 86-393 (December 8,

1986) accccccccccessccescesese 33, FS

Stencel Aero Engineering

Corp. v. United States,

431 U.S. 666 Cae Feed esetseoeve 28

Tennessee v. Dunlap, 426 U.S.

S12 UU9TS)cccccccscssaccesees My 15

United States v. Shearer,

No. 84-194 (June 27, 1985)... 25, 27

UNITED STATES CONSTITUTION

Pirate Amendment .ccccctarseorsece 4 3

Fourteenth Amendment......... 4, 9

TABLE OF CITATIONS

(Cont inued )

PAGE(S)

STATUTES

10 U.S.C. § LEWES enw stedtenetecabs 14

28 UeSeC. SEROC A Sbecken stuns 3

a2 UsS.C, § FOS(E) (2 Jecccccsevces U9

Civil Rights Act of 1871l....ccccce 3S 7

42 U.6.C. § 19B3..cccccccccee PASSIR

42 Fy Fe § Set eikaues cen eue 5 9

42 U.S.C. § Sewer cbse seahaneus V6 9,

MISCELLANEOUS

Rule 40.3, Rules of the Supreme

Court of the United States... 1

Rule 12(b)(1) Fed. R.Civ.P........ 15

Rule 12(b)(6) Fed. P.Civ.P........ 15

PARTIES TO THE PROCEEDING

Petitioners are Brigadier

General Gerald Sajer! the Adjutant

General of the Commonwealth of Pennsyl-

vania, Colonel John D. Campbell = and

Major Henry C. Frisby, officers in the

Pennsylvania Air National Guard, and

respondent's former commanding officers.

Respondent is Ulus Jorden, Jr.

lprigadier General Sa jer has

replaced Major General Richard M. Scott

as the Adjutant General of Pennsyl-

vania. Because Maj. Gen. Scott was sued

only in his official capacity, he has

automatically been substituted for by

Brig. Gen. Sajer. Rule 40.3, Rules of

the Supreme Court of the United States.

OPINIONS BELOW

The opinion of the panel of the

Court of Appeals is reported at 799 F.2d

99 (3d Cir. 1986) and a copy may be

found in the appendix at 22a - 102a.

The opinion of the Distr.ct Court is not

reported, but is reproduced in the

appendix at 103a. - 124a.

STATEMENT OF JURISDICTION

The order of the Court of

Appeals denying rehearing was issued on

October 23, 1986. A motion for exten-

sion of time to file this petition was

granted on January 13, 1987, extending

the time to file this petition until

February 20, 1987. This petition for

writ of certiorari has been filed within

this time. The jurisdiction of this

Court is invoked pursuant to 28 U.S.C.

§1254(1).

CONSTITUTIONAL PROVISIONS INVOLVED

The First Amendment to the

United S*ates Constitution states as

follows:

Congress shall make no

law respecting an establish-

ment of religion, or prohib-

iting the free exercise

thereof; or abridging the

freedom of speech, or of the

press; or the right of the

people peaceably to assemble,

and to petition the Govern-

ment for a redress of griev-

ances.

U.S. Cost. amend. I

Section One of the Fourteenth

Amendment to the United States Constitu-

tion provides as follows:

No State shall make or

enforce any law which shall

abridge the privileges or

immunities of citizens of the

United States; nor shall any

State deprive any person of

life, liberty, or property,

without due process of law;

nor deny to any person within

its jurisdiction the equal

protection of the laws.

U.S. Const. amend. XIV, $1

STATUTES INVOLVED

The Civil Rights Act of 1871,

c.22, $1 provides as follows:

Every person who, under

color of any statute, ordi-

nance, regulation, custom or

usage of any State or Terri-

tory, subjects, or causes to

be subjected, any citizen of

the United States or other

person within the jurisdic-

tion thereof to the depriva-

tion of any rights, privi-

leges, or immunities secured

by the Constitution and laws,

shall be liable to the party

injured in an action at law,

suit in equity, or other

proper proceeding for redress.

42 u.S.c. § 1983.

The Civil Rights Act of 1871,

c.22, §2 provides as follows:

If two or more persons

in any State or Territory

conspire or go in disguise on

the highway or on the prem-

ises of another, for the purpose

Of depriving, either directly

or indirectly, any person or

class of persons of the equal

protection of the laws, or of

equal privileges and immuni-

ties under the laws; or for

the purpose of preventing or

hindering the constituted

authorities of any State or

Territory from giving or

securing to all persons with-

in such State or Territory

the equal protection of the

laws; or if two or- more

persons conspire to prevent

by force, intimidation, or

threats, any citizen who is

lawfully entitled to vote,

from giving his support or

advocacy in a legal manner,

toward or in favor of the

election of any lawfully

qualified person as an elec-

tor for President or Vice

President, or as a Member of

Congress of the United States;

or to injure any citizen in

person or property on account

of such support or advocacy;

in any case of conspiracy set

forth in this section, if one

or more persons engaged

therein do, or cause to be

done any act in furtherance

of the object of such con-

Spiracy, whereby another is

injured in his person or

property, or deprived of

having and exercising any

right or privilege of a citi-

zen of the United States, the

party so injured or deprived

may have an action for the

recovery of damages occa-

sioned by such injury or

deprivation, against any one

or more of the conspirators.

42 U.S.C. §1985(3).

The Civil Rights Act of

c.22, §6, provides as follows:

Every person who, having

knowledge that any of the

wrongs conspired to be done,

and mentioned in section 1985

of this title, are about to

be committed, and having

power to prevent or aid in

preventing the commission of

the same, neglects or refuses

so to do, if such wrongful

act be committed, shall be

liable to the party injured,

or his legal representatives,

for all damages caused by

such wrongful act, which such

person by reasonable dili-

gence could have prevented;

and such damages may be

recovered in an action on the

case; and any number of

persons guilty of such wrong-

ful neglect or refusal may be

joined as defendants in the

action; and if the death of

any party be caused by any

such wrongful act and neglect,

1871,

the legal representatives of

the deceased shall have such

action therefor, and may

recover not exceeding $5,000

damages therein, for the

benefit of the widow of the

deceased, if there be one,

and if there be no_ widow,

then for the benefit of the

next of kin of the deceased.

But no action under the

provisions of this’ section

shall be sustained which is

not commenced within one year

after the cause of action has

accrued.

42 U.S.C. §1986.

STATEMENT OF THE CASE

Rs Respondent, Ylus Jorden,

Jr., brought this action under the Civil

Rights Act of 1871, 42 U.S.C. §§1983,

1985(3) and 1986, alleging that he was

unlawfully discharged from his military

and civilian positions in the Pennsyl-

vania Air National Guard ("PaANG") in

retaliation for the exercise of his

rights under the First and Fourteenth

Amendments to the United States Consti-

tution. Pet. App. 103a. Named as

defendants were Major General Richard M.

Scott, the Adjutant General of

Pennsylvania, and Jorden's superior

officers, Colonel John D. Campbell and

Major Henry C. Frisby. ” Jorden sought

2Maj. Gen. Scott has been suc-

ceeded as Adjutant General by Brig. Gen.

Gerald Sajer. Also named as defendants

(FOOTNOTE CONTINUED ON NEXT PAGE)

both declaratory and injunctive relief,

as well as an award of damages, and

reinstatement in the PaANG, and to his

employment as a civilian technician.

Pet. App. 33a-34a. The District Court,

relying on this Court's decisions in

Chappell v. Wallace, 462 U.S. 296 (1983)

and Tennessee v. Dunlap, 426- U.S. 312

(1976), granted defendants' motion to

dismiss. Pet. App. 109a-114a.

On appeal, a panel of the Court

of Appeals for the Third Circuit affirmed

in part and reversed in part. Pet.

App. 24a. The Court of Appeals affirmed

(FOOTNOTE CONTINUED)

were the National Guard Bureau and its

Chief at that time, Major General Emmett

H. Walker. These defendants are sepa-

rately represented.

«tin

the dismissal of Jorden's damages claim,

but reversed the dismissal of his

injunctive claim seeking reinstatement.

1a.° The Court of Appeals held that

Chappell leaves open claims for injunc-

tive relief, and that permitting injunc-

tive relief while denying a damages

remedy is supported by considerations

of policy." Pet. App. 7la.

Ze In 1956, respondent Jorden

joined the PaANG, and two years later he

became a full-time civilian technician in

PaANG as well. Pet. App. 3la. Jorden's

service with the PaANG proceeded without

incident until October, 1981, when

Jorden began filing a series of com-

plaints about activities at the Willow

3 Judge Gibbons would have reversed

_the District Court not just on the claim

for injunctive relief, but on the dam-

ages claim as well.

atta

i i

Grove Naval Air Station where he was

stationed. Pet. App. 107a. Jorden's

complaints, which were directed to his

superiors, alleged that Guard funds were

being misappropriated and that Jorden, a

black, was being discriminated against.

Pet. App. 3la.

Jorden claimed that his charges,

though legitimate, were ignored, and

that as a result of his making them, his

superiors began a campaign of harassment

against him. According to Jorden, this

campaign culminated on October 3, 1984

when Maj. Gen. Scott, in his capacity as

Adjutant General of Pennsylvania, issued

Special Order AA-472. Pet. App. 107a.

That order relieved Jorden from his

assignment with the Combat and Support

Squadron at Willow Grove and honorably

discharged him from the PaANG. The

effect of the order was to terminate

Jorden's military enlistment in the

«tin

National Guard and to withdraw his

recognition as a fulltime federal

civilian technician employee. Because

Jorden's military enlistment was

terminated, his civilian technician

employment was also terminated, pursuant

to 32 U.S.C. §709(e)(1), on November 9,

1984, Pet. App. 32a, 108a.

The October 3, 1984 Order was

based on Jorden's refusal to comply with

a July 13, 1984 order, issued at the

direction of petitioner Campbell, which

ordered Jorden to 23 days active duty at

the Malcolm Grow Medical Center at

Andrews Air Force’ Base. The order

specified that during the 23-day period,

Jorden was to undergo psychiatric eval-

uation. Pet. App. 32a. Jorden admits

that he disobeyed the order, but claims

that his disobedience was proper because

the order was improperly issued. Id.

ai te

3. Jorden filed his’ civil

rights complaint in February, 1985,

alleging that his superiors had _ con-

spired to harass him and to discharge

him on the basis of race and in retalia-

tion for the exercise of his First

Amendment rights. Jorden claimed that

petitioners’ actions gave rise to causes

of action for violation of his due

process rights’ under the Fourteenth

Amendment; for violations of free speech

guarantees under the First Amendment;

and causes of action under 42 U.S.C.

§§1983, 1985(3) and 1986. Pet.

App. 103a.*

4jyorden also filed two, internal

“EEO” complaints, as well as an "“Appli-

cation for the Correction of Military or

Naval Record" under the provisions of 10

U.S.C. §1552. Jorden's petition before

the Air Force Board for the Correction

of Military Records is still pending.

Pet. App. 36a.

eihe

General Scott, and petitioners

Campbell and Frisby filed a motion to

dismiss Jorden's complaint under Rules

12(b)(1) and (b)(6) of the Federal Rules

of Civil Procedure, arguing that

Chappell v. Wallace, 462 U.S. 296 (1983)

and Tennessee v. Dunlap, 426 U.S. 312

(1976) mandated dismissal. Jorden's

failure to exhaust available administra-

tive remedies was also cited as a basis

for dismissal. On September 24, 1985,

the District Court granted petitioners'

motion to dismiss. The court held that

Chappell, supra, controlled this case,

and that Jorden's attempt to character-

ize the military action taken against

him as a subterfuge to dismiss him as a

civilian employee was precisely the

argument rejected in Tennessee v. Dunlap,

supra. Thus, Jorden could not maintain

a Bivens-type action against his military

oiGe

superiors. See Bivens v. Six Unknown

Named Agents of Federal Bureau of

Narcotics, 403 U.S. 388 (1971). -The

court also held that Jorden could not

maintain actions under 42 U.S.C. §§1983,

1985(3) and 1986, and that his failure

to exhaust administrative remedies was

an alternate basis for dismissal.

4. Jorden appealed to the

Court of Appeals for the Third Circuit.

On August 27, 1986, a divided panel of

the Court of Appeals affirmed the

District Court's dismissal of Jorden's

damages action, but reversed the District

Court's dismissal of his claim. for

injunctive relief seeking reinstatement

in the Guard. Jorden v. National Guard

Bureau, 799 F.2d 99, 103-111 (3d Cir.

1986); Pet. App. 24a. The dissent would

@ ige

heve reversed the District Court's

dismissal of the damages claim as well.

799 F.2d at 111-115 (Gibbons, J.,

dissenting); Pet. App. 84a.

The panel majority affirmed the

dismissal of Jorden's damages’ claim.

Following the majority of the circuits,

the panel majority held that Chappell

“Claid] down ae_=egeneral rule barring

damages actions by military personnel

against superior officers for constitu-

tional violations, rather than author-

izing a _ fact-specific inquiry." Pet.

App. 63a.

As to Jorden's claims for rein-

statement, however, the Court of Appeals

reversed the District Court. Relying on

the absence in Chappell of any direct

reference to claims for injunctive

relief, and several cases of this

Court "as examples of suits against the

oiFea

military that remain viable,"> Pet.

App. 68a-69a, the Court of Appeals held

that "Chappell neither required nor for-

bade the district court from dismissing

Jorden's claims for reinstatement ....

[T]he law of this circuit, supported hv

considerations of policy, dictates that

these claims should not have’ been

dismissed." Pet. App. 8la, (footnote

omitted). The policy considerations

relied upon were that while "[tJhe

threat of personal liability for damages

poses a unique deterrent to vigorous

decisionmaking . .. the possibility that

an officer may be compelled by a court

SGoldman v. Weinberger, No. 84-

1097 (March 25, 1986); Rostker v. Gold-

berg, 453 U.S. 57 (1981); Brown v.

Glines, 444 U.S. 648 (1980); Parker v. .

Levy, 417 U.S. 733 (1974); Frontiero v.

Richardson, 4ll U.S. 677 (1973).

itn

to cease applying a particular regu-

lation in an arbitrary manner, or to

reinstate an improperly discharged

soldier, poses much less of a threat to

vigorous decisionmaking." Pet. App.

75a-76a.

Respondent filed a petition for

rehearing which was denied on October

23, 1986. Pet. App. la.

ai@e

REASONS FOR GRANTING THE WRIT

l. THE COURT OF APPEALS' DECISION

WHICH ALLOWS MEMBERS OF THE

NATIONAL GUARD TO ENJOIN THEIR

MILITARY SUPERIORS FROM TAKING

DISCIPLINARY ACTIONS AGAINST

THEM, INVOLVES IMPORTANT ISSUES

OF FEDERAL LAW AND MILITARY

POLICY, AND IS INCONS ISTENT

WITH DECISIONS OF THIS COURT.

a. The decision of the Court

of Appeals allows respondent, a member

of the National Guard, to seek to enjoin

his military superiors from taking

disciplinary action against him _ for

failing to obey a facially valid mili-

tary order. This result is wrong both

as a matter of policy and law.

Despite the complexities of the

"hybrid status" Pet. App. 27a, of the

National Guard, the facts crucial to

this case and the issues it presents are

abundantly clear. Respondent Jorden was

=20@

a uniformed’ member of the Pennsylvania

Air National Guard, holding the rank of

Master Sergeant. Pet. App. 33a; Amended

Complaint 96. His military supervisors

ordered him to 23 days of active mili-

tary service to ascertain his psycho-

logical fitness. Respondent disobeyed

that order, claiming that his superiors

had no authority to issue it. Res pon-

dent was honorably discharged from the

National Guard, and having lost his

military status, was dismissed from his

civilian employment.

Respondent does not deny that

the order was a military order, issued

by military superiors, and that he

refused to obey it. Nor does respondent

challenge the regulations pursuant to

which the order was given. He clains,

rather, that the personnel actions taken

against him, of which the order was’. only

aSi<a

one, were part of a scheme of harrasment

and racial discrimination. The Court of

Appeals held that so long as the relief

sought under such a claim is reinstate-

ment rather than money damages, a suit

against military supervisors under §1983

is permitted.

At a minimum, and by its own

admission, the Court of Appeals has

decided an issue of great importance to

the federal military and the National

Guard of every state which this Court

has yet to expressly address: the

availability of injunctive relief against

the military in suits by military per-

sonnel. Petitioners submit that this

case squarely presents this issue, which

will surely recur, in a posture which

will allow this Court to render a defin-

itive statement on it.

More significant is the Court

of Appeals' rationale, a rationale which

is inconsistent both internally and when

read against this Court's decisions.

The underlying reasoning of the majority

--that there exists a meaningful and

legally defensible distinction between

suits for damages and suits for injunc-

tive relief in the military context--is

plainly erroneous. The basis for this

distinction is the unsupported assump-

tion that damage awards present a threat

to uninhibited decisionmaking by mili-

tary officers but injunctions do not.

In fact, the intrusion of the courts

into military discipline through the

grant of injunctive relief, particularly

the granting of temporary restraining

orders or preliminary injunctions, is

ite

more of a threat to uninhibited decision-~-

making than a post-decision damage award.

The Court of Appeals fails to provide

any guidance on this issue, presumably

allowing any action so long as only

injunctive relief is requested. More —

over, regardless of whether damages or

injunctive relief is sought, the trial

of these claims must of necessity involve

both a challenge to military orders and

an inquiry into the motivations behind

them. Any distinction based on _ the

relief sought rather than on the nature

of the lawsuit is, simply, a distinction

without a legally significant difference.

D>. Once it is understood that

what respondent seeks to challenge in

his suit for reinstatement are the

orders he was given and the motivations

athe

behind them, the conflict between the

decision of the Court of Appeals and the

decisions of this Court becomes apparent.

Most recently, in United States

v. Shearer, No. 84-194 (June 27, 1985),

this Court succinctly stated that it is

the nature of the case which determines

whether the suit can be maintained. The

key question is

whether this suit re-

quires the civilian

court to second-guess

military decisions, see

Stencel Aero Engineering

Corp. v. United States,

431 U.S. 666, 673 (1977),

and whether the suit

might impair essential

military discipline, see

Chappell v. Wallace, 462

U.S. 296, 300, 304

(1983).

Slip. op. at 6. As in Shearer, which

was a suit by the administratrix of the

estate of a deceased serviceman claiming

that military supervisors failed to

properly supervise the serviceman who

killed hin,

Respondent's complaint

strikes at the core of

these concerns ...

[The] allegation goes

directly to the “manage-

ment" of the military;

it calls into question

basic choices about the

discipline, supervision,

and control of a service-

ean. -« « « tee claina

here would require Army

officers "to testify in

court as to each other's

decisions and actions,"

Stencel Aero Engineering

Corp. v. United States,

supra, at 673. To permit

this type of suit would

mean that commanding

officers would have to

stand prepared to con-

vince a civilian court

of the wisdom of a wide

range of military and

disciplinary decisions;

for example, whether to

over look a particular

incident or episode,

whether to discharge a

serviceman, and whether

and how to place re-

straints on a soldier's

off-base conduct. But

as we noted in Chappell

v. Wallace, such "com-

plex, subtle, and _ pro-

fessional decisions as

to the composition,

training, ° ° ° and

control of a military

«Gm

WR LN rbd ae hin

force are essentially

professional military

judgments.' 462 U.S., at

302, quoting Gilligan v.

Morgan, 413 U.S. Il, 10

Shearer, slip op. at 5-6 (footnote

omitted) (emphasis added). Plainly,

these concerns are present in this case,

where respondent seeks judicial review

of the decision to discharge him for his

failure to obey a direct, facially valid

military order .°

©Respondent's attempt to charac-

terize this case as a civilian, rather

than a military, matter is not only an

attempt to deny the obvious, but is also

an attempt to circumvent Tennessee v.

Dunlap, 426 U.S. 312 (1976). In that

case, this Court rejected a "subterfuge"

argument similar to respondent's. And

in Shearer, this Court rejected respon-

dent's argument that the case was only a

challenge to "'a straightforward person-

nel decision’ . . . By whatever name it

is called, it is a decision of command."

Shearer, slip op. at 6 (citation omitted).

Quite simply, the decision of

the Court of Appeals cannot be

reconciled with either the specific

holdings or overall intent of this

Court's cases. Allowing suits for

injunctive relief against military

superiors for such straight forward

disciplinary actions as are present in

this case is contrary to the holding in

Shearer. It is also incompatible with

this Court's cases beginning in Feres v.

United States, 340 U.S. 135 (1950), with

its recognition of the adverse effects

on military discipline by the mainte-

nance of suits by soldiers against their

superiors, and continuing on to

Chappell, supra, relied upon by the

District Court and cited with approval

in Shearer. See also Stencel Aero

Engineering Corp. v. United States, 431

U.S. 666 (1977); Orloff v. Willoughby,

345 U.S. 83 (1953).

=28-<

aaa canna

The cases relied on by the

Court of Appeals, see n. 5, supra, are

not to the contrary. All involved

constitutional challenges to military

regulations. (Goldman and Brown under

the First Amendment, Rostker and

Frontiero under the Fourteenth Amend-

ment. Parker involved a "void for

vagueness" challenge to provisions of

the Code of Military Justice). None of

these cases involved the specific issue

presented here: a challenge to a

discrete disciplinary action of military

superiors in the absence of any general

challenge to military regulations.

Moreover, the fact that this court has

decided constitutional claims brought by

members of the military is not

dispositive of this issue. The issue of

non-reviewability of claims for injunc-

tive relief apparently was not raised in

-29<

these cases. Additionally, these cases

plainly do not endorse the standardless

position of the Court of Appeals, which

would allow any claim for injunctive

relief merely because an injunction is

sought. See., @.9., Goldman, supra,

slip op. at 4-5, citing with approval

Chappell, 462 U.S. at 300 ("to accom-

plish its mission the military must

foster instinctive obedience") and

Rostker, 453 U.S. at 70 (judicial

deference is at its apogee when actions

involving rules and _ regulations for

governance of armed forces are chal-

lenged).

This Court should grant the

writ to correct this error and to rule

definitively on this issue.

-30-

2. THE COURT OF APPEALS' DECISION

Is IN DIRECT CONFLICT WITH

DECISIONS OF OTHER COURTS OF

APPEALS.

The decision of the Court of

Appeals allowing suits by military

personnel for injunctive relief against

their superiors is directly in conflict

with a decision of another court of

appeals, and implicitly in conflict with

others. In Crawford v. Texas Army

National Guard, 794 F.2d 1034 (5th Cir.

1986), the court refused to allow claims

for injuctive relief for reinstatement

in the TARNG. The court stated:

Appellants finally

contend before this court

that they are entitled

to injunctive relief in

the nature of reinstate-

ment to TARNG. No case

following in the wake

of Chappell has so held,

although one court has

enjoined the enforcement

of a military off-limits

regulation that in-

fringed -on the claim-

ants' first amendment

rights. See Ogden ov.

United States, ES F.2d

1168, 1194-85 (7th Cir.

1985). In Ogden, how-

ever, the Seventh Cir-

cuit persuasively threw

itself within the net of

earlier Supreme Court

decisions expressly

approved in Chappell,

none of which involved

direct interference with

military personnel deci-

sions. Id. at 1175-76.

See Chappell, 462 U.S.

st 304-08,103 S.6t.. at

2367, 76 L.Ed.2d at

593 ... The common

characteristic of these

decisions is that they

involve challenges to

the facial validity of

military regulations and

were not tied to dis-

crete personnel matters.

The nature of the law-

suits, rather that the

relief sought, rendered

them justiciable, The

injunctive relief excep-

tion to Chappell advo-

cated by appellants

could swallow Chappell's

rule of deference.

wit

thn ER ER a Lt EL ORES RL Ao 3 PE tes Shia Mahe ote aa

794 F.2d at 1036 (emphasis added). The

conflict with both the result reached

and the reason.ng employed by the Court

of Appeals below is obvious.’ This

clear conflict can be resolved, and the

Court can harmonize the lower courts'

decisions on the availability of injunc-

tive relief, by granting this petition

for writ of certiorari and reaffirming

its longstanding holdings in this

area.

7The decision of the Third Circuit

is also arguably in conflict with

Martelon v. Temple, 747 F.2d 1348 (10th

Cir. 1984) cert. denied, No. 84-1415

(June 3, 1985) (affirming district court

in grant of summary judgment for mili-

tary defendants on claims which included

a prayer for reinstatement).

8rhis Court recently granted

certiorari in United States v. Stanley,

No. 86-393, cert. granted December 8,

1986, which raises the issue of whether

a serviceman may pursue an action against

(FOOTNOTE CONTINUED ON NEXT PAGE)

-33-

(FOOTNOTE CONTINUED)

his military superiors for alleged

constitutional violations arising from

his participation in an official Army

drug experimentation program. 55

U.S.L.W. 3319. Stanley does not involve

claims for injunctive relief, but only

damages claims which, moreover, arose in

a context where the "demands of military

discipline and obedience to orders" were

not implicated." Stanley v. United

States, 786 F.2d 1490, 1496 (llth Cir.

- The related issues presented in

this case are not controlled by Stanley,

and should be reviewed in order to attain

a coherent reading of the doctrine in

this area.

«itn,

CONCLUSION

For these reasons, a writ of

certiorari should issue to review the

decision of the Court of Appeals for the

Third Circuit and, upon review, the

decision should be reversed wnt judgment

entered for petitioners on the claims

for injunctive relief.

Respect fully submitted,

LeROY S. ZIMMERMAN

Attorney General

By: THOMAS M. CROWLEY

Deputy Attorney General

Counsel of Record

JOHN G. KNORR, III

Senior Deputy Attorney General

ANDREW S. GORDON

Chief Deputy Attorney General

Chief, Litigation Section

Counsel for Petitioners

Office of Attorney General

15th Floor

Strawberry Square

Harrisburg, PA 17120

(717) 783-1471

DATE: February 20, 1987

APPENDIX

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

NO. 85-1664

JORDEN, JR., ULUS,

Appellant

NATIONAL GUARD BUREAU

Departments of the Army and The Air Force

and

SCOTT, RICHARD M., Major General (PA)

The Adjutant General Commonwealth of

Pennsylvania

and

CAMPBELL, JOHN D., individually and as

Colonel, Pennsylvania Air National Guard

Base Detachment Commander

and

FRISBY, HENRY C., individually and as

Major, Pennsylvania Air National Guard

Chief, Administration

Appellees

-la-

jE a ele EME ODS SD cise ins ils

ioe p ae

SUR PETITION FOR REHEARING

Present: ALDISERT, Chief Judge, SEITZ,

ADAMS, GIBBONS, WEIS,

HIGGINBOTHAM, SLOVITER; BECKER,

STAPELTON, MANSMANN,

Circuit Judges

The petition for rehearing

filed by Ulus Jorden, Jr., appellant in

the above entitled case, having been

submitted to the judges who participated

in the decision of this court and to all

the other available circuit judges of

the circuit in regular active service,

and no judge who concurred in the deci-

sion having voted for rehearing, and a

-2a-

majority of the circuit judges of the

circuit in regular active service not

having voted for rehearing by the court

in banc, the petition for rehearing is

DENIED. Judge Gibbons would grant the

petition for rehearing.

BY THE COURT:

/s/ Edward R. Becker

Circuit Judge

DATED: Oct. 23, 1986

-3a-

October 10, 1986

ORDER

MOTION GRANTED with

filing as of the date of this order.

For the Court,

/s/ Sally Mrvos

Clerk

IN THE UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

No. 85-1664

ULUS JORDEN, JR.,

Plaintiff - Appellant,

Vv.

NATIONAL GUARD BUREAU;

EMMET H. WALKER, JR., Chief,

National Guard Bureau;

RICHARD M. SCOTT, The Adjutant

General, Commonwealth of

Pennsylvania; JOHN D. CAMPBELL,

individually and as Colonel,

Pennsylvania Air National

Guard, Base Detachment

Commander; and HENRY C. FRISBY,

individually and as Major,

Pennsylvania Air National

Guard, Chief of Administration,

Defendant - Appellees

-4a-

ener iia

APPELLANT'S MOTION FOR LEAVE TO FILE

PETITION FOR REHEARING OUT OF TIME

TO THE HONORABLE, THE JUDGES OF THE SAID

COURT:

Appellant in the above-

captioned appeal, Ulus Jorden, Jr., by

his undersigned counsel, hereby moves

this Honorable Court for an order grant-

ing leave to file a Petition for Rehear-

ing Out of Time, and in support hereof

represents the following:

ke On August 27, 1986 this

Court entered its Judgment in the above-

captioned appeal, which appeal was

arqued on June 3, 1986 before the

Honorable Judges Gibbons, Becker’ and

Stapleton.

Ze With the Honorable Judge

Gibbons concurring in part and

-5a-

IN THE UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

No. 85-1664

ULUS JORDEN, JR.,

Plaintiff - Appellant,

Vv.

NATIONAL GUARD BUREAU;

EMMET H. WALKER, JR., Chief,

National Guard Bureau;

RICHARD M. SCOTT, The Adjutant

General, Commonwealth of

Pennsylvania; JOHN D. CAMPBELL,

individually and as Colonel,

Pennsylvania Air National

Guard, Base Detachment

Commander; and HENRY C. FRISBY,

individually and as Major,

Pennsylvania Air National

Guard, Chief of Administration,

Defendant - Appellees

APPELLANT'S MOTION FOR LEAVE TO FILE

PETITION FOR REHEARING OUT OF TIME

-6a-

TO THE HONORABLE, THE JUDGES OF THE SAID

COURT :

Appellant in the above-

captioned appeal, Ulus Jorden, Jr., by

his undersigned counsel, hereby moves

this Honorable Court for an order

granting leave to file a Petition for

Rehearing Out of Time, and in support

hereof represents the following:

l. On August 27, 1986 this

Court entered its Judgment in the above-

captioned appeal, which appeal was

argued on June 3, 1986 before’ the

Honorable Judges Gibbons, Becker and

Stapleton.

2. With the Honorable Judge

Gibbons concurring in part and dis-

senting in part, the Opinion of the

Court, as expressed by the panel, is |

that the September 24, 1985 order of the

-Ja-

U.S. District Court for the Eastern

District of Pennsylvania (J. McGlynn)

granting motions to dismiss all counts

of the Complaint under Fed. R. Civ. P.

12(b) is to be affirmed in part and

reversed in part and remanded for fur-

ther proceedings.

3. The judgment of the

District Court was reversed insofar as

it dismissed appellant's claims for

injunctive relief against the individual

appellees, including his claim for rein-

statement to his position as a civilian

technician in the Pennsylvania Air

National Guard.

4. However, the judgment of

the District Court was affirmed insofar

as it dismissed appellant's claims for

-B8a-

damages. The Honorable Judge Gibbons

dissented on this point alone.

S. On September ll, 1986

appellant filed a Petition for Rehearing

and supporting Memorandum of Law on the

issue of damages only. The issue raised

in said Petition is one of exceptional

importance, to wit whether the U.S.

Supreme Court's opinion in Chappell v.

Wallace, 462 U.S. 296 (1983) requires

the federal courts to grant immunity to

state national guard officers from

damage claims in actions brought under

ee ee ee

42 u.S.C. § 1983 by national guard

civilian technician employees.

*“The judgment was also affirmed

insofar as it dismissed the claims

against the National Guard Bureau, a

federal agency. No review or rehearing

with respect to that decision is being

sought.

-9a-

6. By letter dated September

15, 1986 the Clerk of the Court informed

counsel that the last day to file the

Petition for Rehearing was September 10,

1986 and that accordingly said Petition

would not be entertained by the Court

unless leave is granted to file the

Petition out of time. A copy of the

letter is attached hereto as Exhibit "A."

7. The filing of the Petition

for Rehearing one (1) day after the

filing deadline is attributable to two

(2) reasons, to wit:

(a). the undersigned counsel

was away from the office on vacation

until September 4, 1986 and thus had no

knowledge of the Court's decision until

that date: and

-l0a-

(b). in counting the fourteen

(14) calendar days within which the

Petition was to be filed the undersigned

counsel unfortunately (but admittedly

inexcusably) forgot to count the date of

August 3l.

= 8. Petitioner requests the

understanding and indulgence of the

Court, and respectfully suggests’ that

the issue raised in the Petition for

Rehearing is too important to turn aside

simply because appellant's attorney

filed the Petition 12 or 13 hours ‘too

late.

9. Petitioner also requests

that the following factors be considered:

(a). no harm or prejudice to

the other parties is occasioned by the

late filing in the instant case partic-

ularly in view of the fact that under the

-lla-

Rules no Answer to the Petition may be

filed unless specifically requested by

the Court;

(b). the extent of the late-

ness (one day) and the above-asserted

reasons are not such as would suggest

abuse of or inattention to the Rules of

this Court; and

(c). the Rule governing peti-

tions for rehearing imposes a_ filing

time obligation which runs from the date

of entry of the judgment rather’ than

service thereof, thus giving the peti-

tioning party less than 14 days to study

the opinion; research the issues; write

a Petition and Memorandum; and duplicate,

bind and file the Petition.

10. Finally, the Court is

reminded that the issue with respect to

which rehearing is sought involves much

more than a dispute between the parties

-l2a-

themselves. The issue affects a sub-

stantial number of people in the Common-

wealth of Pennsylvania. The Court's

decision represents the first time that

the Third Circuit has stated that

national guard civilian technician

employees cannot recover damages fox

violations of their constitutional

rights suffered at the hands of state

officers although those officers may act

under color of state law. That isolated

issue was not adequately briefed or

argued. Also, there is some variance on

this issue among the circuits. Conse-

quently the issue is one which is likely

to be reviewed at some point by the U.S.

Supreme Court. The majority and dis-

senting opinions of the panel are well

written and reasoned, carefully thought

-l3a-

out, and extremely well researched. It

would indeed be unfortunate if the full

Court does not have an opportunity to

examine this issue sOlely because the

Petition for Rehearing was filed one day

late.

WHEREFORE, movant prays’ this

Honorable Court to grant this Motion for

Leave to File Petition for Rehearing Out

of Time.

Respectfully submitted,

/s/ FRANK FINCH, III

FRANK FINCH, III

Attorney for Movant/Appellant

1616 Walnut Street

Philadelphia, PA 19103

(215) 545-1960

September 24, 1986

-l4a-

IN THE UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

No. 85-1664

ULUS JORDEN, JR.,

Plaintiff - Appellant,

NATIONAL GUARD BUREAU;

EMMET H. WALKER, JR., Chief,

National Guard Bureau;

RICHARD M. SCOTT, The Adjutant

General, Commonwealth of

Pennsylvania; JOHN D. CAMPBELL,

individually and as Colonel,

Pennsylvania Air National

Guard, Base Detachment

Commander; and HENRY C. FRISBY,

individually and as Major,

Pennsylvania Air National

Guard, Chief of Administration,

Defendant - Appellees

APPELLANT'S PETITION FOR REHEARING

UNDER FRAP 40

TO THE HONORABLE,

COURT:

~1l15a-

THE JUDGES OF THE SAID

Set ey eee

Appellant in the above-

captioned appeal, Ulus Jorden, Jr.,

hereby petitions this Honorable Court

for a rehearing in banc on the issue of

damages only, and in support’ thereof

represents the following:

l. On August 27, 1986 this

Court entered its judgment in the

above-captioned appeal, which appeal was

argued on June 3, 1986 before’ the

Honorable Judges Gibbons, Becker’ and

Stapleton.

Be With the Honorable Judge

Gibbons concurring in part and dis-

senting in part, the Opinion of the

Court, as expressed by the panel, is

that the September 24, 1985 order of the

U.S. District Court for the Eastern

District of Pennsylvania (J. McGlynn)

granting motions to dismiss all counts

-l6a-

of the Complaint under Fed. R. Civ. P.

12(6) is to be affirmed- in part and

reversed in part and remanded for

further proceedings. A copy of the

Opinion of the Court is attached hereto.

ae The judgment of the Dis-

trict Court was reversed insofar as it

dismissed appellant's claims for injunc-

tive relief against the individual

appellees, including his claim for rein-

statement to his position as s civilian

technician in the Pennsylvania Air

National Guard (hereinafter PaANG). On

remand the issue is to be whether the

plaintiff can prove that his dismissal

from the PaANG violated his’ constitu-

tional rights, thus entitling him to

reinstatement. The Honorable Judge

Gibbons concurred in this aspect of the

panel's decision,

-l7a-

ee eS eee

4. However, the judgment of

the District Court was affirmed insofar

as it dismissed appellant's claims for

damages. The Honorable Judge Gibbons

dissented on this point alone.

S. Petitioner hereby respect-

fully moves for rehearing in banc

limited to the issue of damages.

6. Petitioner and the

undersigned counsel of record, having

reviewed the Opinion of the Court,

believe that this matter involves a

question of exceptional importance, to

wit whether the U.S. Supreme Court's

opinion in Chappell v. Wallace, 462

U.S. 296 (1983) requires the _ federal

ltfhe judgment was also affirmed

insofar as it dismissed the claims

against the National Guard Bureau, a

federal agency. No review or rehearing

with respect to that decision is being

sought herein.

-18a-

courts to grant immunity to state

national guard officers from damage

claims in actions brought under 42

U.S.C. § 1983 by national guard civilian

technician employees.

Te Petitioner further asserts

that the result of this decision is that

for the first time the Third Circuit has

stated that national guard civilian

employees cannot, at least in this

Circuit, recover damages for violations

of their constitutional rights suffered

at the hands of state officers despite

the fact that those officers may act

under color of state law.

“8. The crucial inquiry on the

issue with respect to which rehearing

is sought is that which begins at

page 17 and ends at page 20 of the

majority opinion (ie. Part C). Peti-

tioner believes that the Court failed to

-19a-

appropriately address the issue of

whether Chappell, supra., is at all

applicable to the claims of state

national guard civilian technicians

9. Petitioner also asserts

that the issue of damages, as a sepa-

rated and isolated issue, was not

adequately briefed before the panel, and

that there was never any suggestion

during oral argument that any member of

the panel entertained serious doubts

about whether damages would be available

should the Court reverse the District

Court's dismissal of the § 1983 action.

It is respectfully suggested that the

panel might have requested supplemental

briefs on the issue of damages alone to

enable additional input of the parties

on this, a specific point not briefed or

argued in detail.

-20a-

10. Finally, the issue raised

herein is one with respect to which, as

the Opinion of the Court points out,

there is some variance among the

circuits. The issue is also one which

is likely to be reviewed at some point

by the U.S. Supreme Court. Accordingly

petitioner believes that a review and

further statement by the full Court is

appropriate.

WHEREFORE, petitioner prays

~ — ss estes

this Honorable Court to grant this

Petition for Rehearing and to schedule

reargument before the Court in banc.

CA Memorandum of Law is

attached hereto]

/s/ FRANK FINCH, III

FRANK FINCH, LIT

Attorney for Petitioner/Appellant

McDaniel, Dade Wheeler & Walwyn

1616 Walnut Street, Suite 1910

Philadelphia, Pennsylvania 19103

(215) 545-19103

September ll, 1986

-2la-

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

NO. 85-1664

ULUS JORDEN, JR.,

Appellant

NATIONAL GUARD BUREAU, Department of

the Army and the Air Force: EMMETT H.

WALKER, JR., Chief, National Guard

Bureau; RICHARD M. SCOTT, Ma jor

General (PA), The Adjutant General,

Commomwealth of Pennsylvania; JOHN D.

CAMPBELL, individually and as Colonel,

Pennsylvania Air National Guard Base

Detachment Commander; and HENRY C.

FRISBY, individually and as _ Major,

Pennsylvania Air National Guard Chief,

Administration,

Appellees

On Appeal from the United States

District Court for the

Eastern District of Pennsylvania

(D.C. Civil No. 85-0670)

Argued June 3, 1986

Before: GIBBONS, BECKER, and STAPELTON,.

Circuit Judges

(Filed August 27, 1986)

-22a-

FRANK FINCH, III (Argued)

McDaniel, Dade, Wheeler & Walwyn

1616 Walnut Street, Suite 1910

Philadelphia, PA 19103

Attorney for Appellant

EDWARD S.G. DENNIS, JR.

United States Attorney

WALTER S. BATTY, JR.

Assistant United States Attorney

Chief of Appeals

MARGARET L. HUTCHINSON

Assistant United States Attorney

3310 United States Courthouse

601 Market Street

Philadelphia, PA 19106

THOMAS M. CROWLEY, (Argued)

Office of the Attorney General

15th Floor, Strawberry Square

Harrisburg, PA 17120

MARILYN D. BARTON, Major,

USAF (Argued)

Office of the Judge Advocate General

United States Air Force

Room 5E425, The Pentagon

Washington, DC 20330-5120

Attorneys for Appellees

OPINION OF THE COURT

BECKER, Circuit Judge

-23a-

This case requires us to

Getermine the susceptibility of National

Guard officers to suits by guardsmen for

damages and injunctive relief. Plain-

tiff, Ulus Jorden, discharged from both

his military and civilian positions in

the Pennsylvania Air National Guard

("PaANG"), sought damages against his

superiors and reinstatement to both

positions. Relying on Chappell _ vy.

Wallace, 462 U.S. 296 (1983), the

district court dismissed plaintiff's

case under Fed.R.Civ.P. 12(B).

Although we _ find that the

district court acted correctly in

dismissing Jorden's claims for damages,

we conclude that it erred in dismissing

his claims for injunctive relief, i.e.,

reinstatement. Accordingly, we shall

affirm in part and reverse in part and

remand this case for further proceedings.

-24a-

Part I of this opinion sets

forth the necessary background - the

structure of the National Guard and the

facts and procedural history of this

case. Part II begins with a brief

history of the case law concerning the

immunity of military officers from

damages claims, and then applies that

body of law to the instant’ case.

Similarly, Part III begins with a brief

history of the case law concerning the

reviewability of claims for injunctive

relief against the military, and then

considers its applicability to Jorden's

claims for reinstatenent.*

ltt is useful at the outset to

distinguish among several terms that

arise in cases involving the military.

First, courts usually invoke the term

"immunity" to refer only to whether

particular defendants are susceptible to

(FOOTNOTE CONTINUED ON NEXT PAGE)

‘

-25a-

FOOTNOTE CONTINUED

or are free from damages actions, while

using "“reviewability to refer more

generally to the appropriateness of a

civilian court hearing cases that

involve military matters. See Wallace

v. Chappell, 661 F.2d 729, 734 (9th Cir.

1981), rev'd on other grounds, 462 .S.

296 (1983). We shall follow this path

(notwithstanding the fact that the term

"immunity" could be understood more

broadly to apply to claims for both

damages and injunctive relief). Thus,

in Part Two, which concerns Jorden's

damages claims, we use the term

“immunity,” while in part three, which

concerns his claims for reinstatement,

we use “reviewability." to denote

generally the propriety of a court's

hearing a particular claim. Dillard v.

Brown, 652 F.2d 316, 322 n.4 (3d Cir.

1981). Because "justiciability" has a

.more specific meaning in other contexts,

we use "reviewability." As the foregoing

suggests, the nomenclature in this area

is flexible, and while our choice of

terms may seem arbitrary, it is designed

to minimize confusion.

-26a-

I. Background

A. Structure of the National Guard

As this court noted recently in

Johnson v. Orr, 780 F.2d 386, 388 (34d

Cir. 1986), the National Guard has an

"unusual '‘hybrid' status as an agency

with both federal and state characteris-

tics." The Guard is the modern successor

to the state militia, see Engblom v.

Carey, 522 F.Supp. 57, 65 (S.D.N.Y.

1981), and all fifty states and Puerto

Rico have their own Guard. Article I,

Section 8, clause 16 of the Constitution

places the power of appointing personnel

to the state militia in the hands of the

state. Guard members are called out for

roughly two weeks a year of military

training. In addition, governors may

call out their state Guard at any time

-27a-

for state emergencies such as riots and

floods. However, there is ae federal

component to the Guard as well. The

National Guard Bureau, an adjunct of the

United States Departments of the Army

and Air FPorce, gives Guard personnel

federal recognition as part of either

the Army National Guard of the United

States or the Air National Guard of the

United States ("ANGUS"). In addition,

the President may call the Guard into

(1982).

The Guard's status is further

complicated by its having a mixture of

military and civilian elements. In

addition to its military complement, the

Guard hires full-time civilian techni-

cians. The technician program provides

various services critical to the Guard's

-28a-

mission: maintenance of equipment and

facilities, support of aircraft opera-

tions, and clerical functions. The

technician program too involves’ federal

and state elements. Although the 1968

National Guard Technicians Act, 32 U.S.C.

§ 709 (1982), made civilian technicians

federal employees, the technician program

is administered at the state Level. *

2Thus, in Johnson v. Orr, 780 F.2d

38€ (3d Cir. 1986), we held that the New

Jersey Adjutant General and technician

supervisory personnel acted under the

color of state law for the purpose of 42

U.S.C. § 1983 in dismissing Guard tech-

nicians. That case involved a certified

question concerning the "color of state

law" issue. Although amici contended

that defendants were immune from a

damages suit by virtue of their military

status, we declined to reach that issue

because it was not part of the question

certified by the district court. Id. at

389 n.6. The district court had held

that, because the case arose almost

entirely in a civilian context, the

doctrine of military immunity was

inapplicable.

The adjutant general, a state officer,

is in charge of personnel matters.

Finally, and significant in this case,

in order to be eligible for a technician

position, one must be a Guard military

member. 32 U.S.C. § 709(b). A Guard

technician is automatically dismissed

from his civilian technician position if

he loses his military membership. 32

U.S.C. § 709(e)(6), and can otherwise be

dismissed "tor cause." 32 U.8.C.

§ 709(e)(3).

-30a-

B. Facts and Procedural History

In 1956 plaintiff-appellant

Jorden became the first black member to

enlist in PadANG. Two years later he

became a full-time civilian technician

in PaANG as well. For the next twenty-

five years he served in both capacities

without incident. Beginning in 1981,

however, Jorden became either a

"whistleblower" or a “troublemaker, "

depending on whom one believes. He

launched a series of protests alleging

various abuses by his superiors,

including impermissible expenditure of

Guard funds and discriminatory treatment

of him personally.

Jorden alleges that his

complaints were legitimate, that they

were not followed up adequately, and

that instead they led to a campaign of

-3la-

" Pe ee

ph sd sicebtc Petia

}

;

}

harrassment against him. In October,

1984, he was called alone (without his

unit), in an Order of the Governor, to

active duty for twenty-three days of

“special training." The order specified

that, during the twenty-three day period,

Jorden was to report to the Malcolm Grow

Medical Center for psychiatric evalua-

tion.

Jorden refused to comply,

believing that the governor was not

empowered to call out a single guardsman

for such a special session. Following

Jorden's non-compliance, PaANG Adjutant

General Richard M. Scott dismissed him

from his military position in PaANG.

Thereupon, Jorden's technician employ-

ment was autonatically terminated,

because, as we have noted, only military

members of the Guard are eligible for

technician employment. At the time of

-32a-

his discharge Jorden was a master ser-

geant in the PaANG military unit and an

assistant office manager in the techni-

cian program.

Jorden then brought ae civil

rights suit in the United States

District Court for the Eastern District

of Pennsylvania alleging that his

various superiors had engaged in a

conspiracy to harass him and to dis-

charge him on the basis of race and in

retaliation for the exercise of his

first amendment’ rights. Specifically,

he asserted claims for damages under 42

U.S.C. §§ 1983, 1985 and 1986 against

General Scott, Colonel Jomhn D. Campbell

and Major Henry C. Frisby, all of whom

were both his military officers and his

civilian supervisors; a pendent. state

common law claim of defamation against

-33a-

Scott, Campbell and Frisby; and claims

for reinstatement against the afore-

mentioned defendants, as well as against

Emmett Walker, Chief of the National

Guard Bureau ("NGB") and against the NGB

itseif.°

3Because Jorden asserted no pr oper

jurisdictional basis for a suit against

the NGB, the NGB was properly dismissed

as a defendant. The NGB is an agency of

the United States and is thus protected

form lawsuits unless there has been a

waiver of sovereign immunity. The

Administrative Procedure Act ("APA"), 5

U.S.C. § 702 et seq. (1982), constitutes

such a waiver, but Jorden does not make

an APA challenge to actions of the NGB,

whose only official action, the with-

drawal of recognition of Jorden in

ANGUS, was ministerial. Jorden does not

dispute that, once he was removed from

PaANG, he automatically lost his status

in ANGUS. Rather, he intimated to the

(FOOTNOTE CONTINUED)

-34a-

Defendants moved for dismissal

of plaintiff's entire case, invoking

both Fed.R.Civ.P. 12(b)(1) and (6). As

we have noted, the district court

granted the motion to dismiss,“

finding that Jorden's federal claims

were barred by Chappell v. Wallace, 462

U.S. 296 (1983), and then dismissing the

district court that certain currently

unknown employees of the NGB (in addi-

tion to Walker) were aware of the

conspiracy against him and acquiesced in

it in violation of 42 U.S.c. § 1986.

However, while such individuals may be

sued, the NGB is not a “person” within

§ 1986. Nor is it necessary to include

the NGB as a defendant to enable the

implementation of a court order of

injunctive relief. State defendants can

reinstate Jorden to PaANG, and defendant

Walker, Chief of the NGB, can reinstate

Jorden to ANGUS.

4tmhe district court's opinion did

not distinguish 12(b)(1) and (6), and

its order did not specify whether the

dismissal was pursuant to (1) or (6).

-35a-

fiers *

etn tmnt te aa ly

state common law claim because pendent

jurisdiction was lacking.

Stn a conclusory footnote, the

court held that Jorden's failure to

exhaust administrative remedies was an

additional basis for dismissal. We

disagree. It is true that Jorden has

recourse to the Air Force Board for the

Corrections of Military Records

("AFBCMR") under 10 U.S.C. § 1552

(Jorden has petitioned for relief under

§ 1552 and the petition is pending. )

Some courts have dismissed actions

because plaintiffs had not availed them-

selves of this remedy, see, e.g.,

Sanders v. McCrady, 537 F.2d 1199

Cir. 1567). However, this court has not

adopted a per se exhaustion requirement

for military personnel. Indeed, in

Nelson v. Miller, 373 F.2d 474, 479-80

r.). cert. denied, 387 U.S. 924

(1967), we explicitly rejected a rule

that would require recourse to 10 U.S.C.

§ 1552 before military personnel could

bring a claim. Rather, we said, exhaus-

tion depends on the potential adequacy

of that remedy in the particular case,

Nelson is consistent with our approach

to exhaustion generally, see, e.g.,

First Jersey Securities, Inc. v. Bergen,

605 F.2d 530; 696 (3d Cir. 1975), cert.

denied, 444 U.S. 1074 (1980), Which

favors exhaustion but does not require

it where the administrative remedy would

-36a-

(FOOTNOTE CONTINUED)

be inadequate. In this case, the AFBCMR

cannot afford Jorden satisfactory relief.

As defendants concede, the AFBCMR, a

federal Board, cannot order Jorden's

reinstatement to the state Guard. See

Penagaricano v. Llenza, 747 F.2d 55, 57

(Ist Cir. 1984). Moreover, the AFBCMR

is a military Board that is arguably not

empowered to reinstate Jorden to his

civilian technician position in any

event. See Rolles v. Civil Service

Commission, 512 F.2d 1319, 13260 (D.C.

Cir. 1975) ("“{T]he Board does not have

the authority or the power to order the

reinstatement with back pay of an

employee to a civilian position. The

Board per forms a purely military

function. ")

Neither the district court nor

defendants contend that there are

adequate state remedies, and, in any

event, the exhaustion of state admin-

istrative remedies is not required in

§ 1983 actions. Patsy v. Florida Board

of Regents, 457 U.€. 156, Sié (1982).

-37a-

II. Plaintiff's Damages Action

A. History of the Availability of

Damages Suits Against Military

Officers

Military officers have not

always been afforded absolute immunity

from damages suits. The leading nine-

teenth century case is Wilkes v. Dinsman,

48 U.S. (7 How.) 89 (1849), after remand

Dinsman v. Wilkes, 53 U.S. (12 How.) 390

(1851), in which the Court held that a

naval commander alleged to have flogged

and imprisoned an enlisted seaman could

be held liable for damages at common law.

The ability of servicemen and

other aggrieved persons to recover

damages in a military context was dealt

a severe blow by the Supreme Court's

Gecision in Feres v. United States, 340

u.S. 135 (1950). In Feres, the Court

-38a-

held that the United States was immune

from liability under the Federal Tort

Claims Act for torts arising out of or

incident to military service. The Court

was concerned, inter alia, with defer-

ence to Congress, which had provided a

system of military remedies. Although

Feres does not explicitly rely on the

special requirements of military disci-

pline, in subsequent cases the Court has

observed that "Feres seems best explained

by the ‘peculiar and special relation-

ship of the' soldiers to his superiors,

(and) the effect of the maintenance of

such suits on discipline ... .,.‘"™

United States v. Muniz, 374 U.S. 150,

162 (1963), quoting United States v.

Brown, 348 U.S. 110, 112 (1954). # £=Feres

did not address the propriety of common

law suits against individual officers,

such as the action brought in Wilkes.

-39a-

The availability of damages

relief against military officers was

subsequently affected by two Supreme

Court cases that did not involve

military officers but whose holdings

concerned damages actions against

governmental officials in general. In

Monroe v. Pape, 365 U.S. 167 (1961),

the Court greatly expanded the potential

liability of state officers under

§ 1983° and in Bivens’ v. Six Unknown

6prior to Monroe it was widely

believed that § 1983's “color of law"

requirement was met only where the state

had authorized the conduct in question.

Monroe clarified that the "color of law"

requirement extended to "any official

conduct -- whether valid under state law

or not." P.Schuck, Suing Government 48,

-40a-

Named Agents of Federal Bureau of

Narcotics, 403 U.S. 388 (1971), the

Court recognized a damages action brought

directly under the Constitution against

federal officers. In the aftermath of

these cases, both the Supreme Court and

this circuit gave their imprimatur to

damage suits against military officials

for the violation of constitutional

—__ —__

rights. Scheuer v. Rhodes, 416 U.S. 232

(1974) (Adjutant General of Ohio and

subordinate officers not immune from

damage suits arising out of events in

connection with the Kent State shooting);

Chaudoin v. Atkinson, 494 F.2d 1323,

1332 (3d Cir. 1974) (remanding case to

district court with instructions to

award damages to guardsman ine suit

against Adjutant General of Delaware);

Lasher v. Shafer, 460 F.2d 343, 348 (3d

Cir. 1972) (rejecting claim of automatic

-4la-

immunity for state military officers in

§ 1983 suit and remanding for develop-

ment of factual record to determine if

immunity is appropriate).

However, in 1982, this court

held that soldiers who alleged that they

were ordered to stand ina field while a

nuclear device was exploded nearby could

not bring a Bivens damages action against

their federal military officers. Jaffe

v. United States, 663 F.2d 1226 (3d Cir.

1981) (en banc), cert. denied, 456 U.S.

972 (1982) (“Jaffe II"). We did not

address whether the holding affected

constitutional claims brought under

§ 1983 against state military officers.

One year later, in Chappell v.

Wallace, 462 U.S. 296 (1983), the

Supreme Court faced a Bivens claim for

damages brought by servicemen against

-42a-

their naval officers alleging racial

discrimination in making duty assign-

ments, per forming evaluations and

imposing penalties. The Court essen-

tially adopted the reasoning of Feres,

finding that concern for military

discipline and deference to Congress

required rejection of the Bivens claim

brought by the plaintiffs.

As noted, the district court

found that Chappell barred Jorden's

damages suit. Determining whether this

holding was correct requires analysis of

two issues. First, we must’ decide

whether the reasoning of Chappell, which

dealt with a Bivens claim against federal

military officers, also applies to § 1983

actions against state military officers.

Because we conclude that it does, we

must then consider Jorden's' contention

that Chappell does not prohibit all or

-43a-

even most damages actions against mili-

tary officers but compels a fact -

specific inquiry into whether judicial

review in a particular case will unduly

interfere with the military mission.

B. Does Chappell Apply To $ 1983

Actions?

Jorden's counsel made clear at

oral argument that the claim against

Walker, the only federal military officer

in the case, was for injunctive relief

only. Thus, this case involves no Bivens

7We shall focus our analysis’ on

Chappell because we find that Jaffe v.

United States, 663 F.2d 1226 (3d Cir.

1982) (en banc), cert. denied, 456 U.S.

972 (1982) ("Jaffe If"), offers no

additional illumination on the relevant

questions. The district court and all

of the parties similarly focused on

Chappell.

-44a-

damages claims. Rather, Jorden's

damages claims are brought against

federal military officers under the

Reconstruction Civil Rights’ statutes.

Because Chappell involved Bivens claims

against federal military officers and

not § 1983 claims against state military

officers, it is not clear whether

Chappell controls this case. This

uncertainty is heightened by two foot-

notes near the end of the Chappell

Opinion.

Footnote 2 distinguished Wilkes

v. Dinsman, supra, on the ground that

"CWilkes ] involved a well-recognized

common law cause of action .. . and did

not ask the Court to imply a new kind of

cause of action." 462 U.S. at 305 n.2.

In another footnote, the court explic-

itly declined to address whether the

plaintiff's claim under 42 U.S.C.

§ 1985(3) was barred because the issue

-45a-

had not been briefed. 1s Bere These

two footnotes lend credence to the view

that Chappell was limited to Bivens

claims (a "new" judicially-created

remedy), and does not apply to damages

claims brought under § 1983. Yet, the

courts of appeals that have considered

the question have, with little discus-

sion, extended Chappell to bar actions

brought against state military officers

under § 1983. Brown v. United States,

739 F.2d 362, 367,(8th Cir. 1984), cert.

denied U.S. » £03 $.Ct.. 2524

(1985); Martelon v. Temple, 747 F.2d

1348, 1350-51 (10th Cir. 1984), cert.

denied 105 S.Ct. 2675 (1985). These

courts have observed that the disruptive

effect of damages suits on military

discipline is the same regardless of

-46a-

whether the suit is a Bivens’ claim

against federal military officers or a

§ 1983 claim against state military

officers.° Thus, they have held that

there is no “reasoned distinction for

the purposes of the Feres' doctrine

between Bivens-type actions under the

Constitution and actions brought under a

federal civil rights statute." Brown,

739 F.2ea at 367. ,

We believe that the issue is