# Petition for Writ of Certiorari — Sajer v. Jorden > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385011_1879%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition for Writ of Certiorari - **Published:** January 1, 1987 - **Citation:** 484 U.S. 815 ## Text 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 Ve 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. 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@ te 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. 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 er 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-> The district court had held that this military matter was not reviewable in 141t is clear that Dillard was not overruled by either Chappell or Jaffe II. We have already discussed at length the fact that Chappell does not bar Claims for injunctive relief. Similarly, in Jaffe II we explicitly stated that “what we are called upon to decide is simply whether plaintiffs are entitled to money damages." 663 F.2d at 1240. 15sShe also alleged that the regulation was facially unconstitu- tional, a claim this court appeared to regard as frivolous. 652 F.2d at 324 n.6. -78a- the civilian courts. This court reversed, holding that suits against the military are non-cognizable in federal court only in the rare case where finding for plaintiff “require{s] a court to run the military." 652 F.2d at 322. We gave as one example Gilligan v. Morgan, 413 U.S. 1 (1973), in which the plaintiffs asked the court to engage in ongoing regulatory supervision of the Guard. Absent such an extreme case, “Cilf the military justi fication outweighs the infringement of the plaintiff's individual freedom, we may hold for the military on the merits, but we will not find the claim to be non-justiciable." Dillard, at 323-24 (emphasis addea).?® 16In Dillard we explicitly rejected the test set forth by the Fifth Circuit in Mindes v. Seaman, 453 F.2d 197 (5th Cir. 1971), for determining ( FOOTNOTE CONTINUED, eu NEXT PAGE) = a- Like the plaintiff in Dillard, Jorden alleges that he was discharged in violation of his constitutional rights. Also like plaintiff in Dillard, if Jorden establishes a constitutional (FOOTNOTE CONTINUED) whether a court should hear a particular claim involving the military. See, Note, Judicial Review of Constitutional Claims Against the Militar , 64 Colum. L. “Rev. 387 (IS84) praising Dillard as superior approach to Mindes). The Mindes test requires balancing, inter alia, the importance of the constiTtu= tional right asserted and the antici- — extent to which review will nterfere with the military mission. We note that Jorden's claim would likely be reviewable under a Mindes balance. He alleges race discrimination and retali- ation for the exercise of politically- related speech, both of which are very important constitutional claims. More- over, reviewing the military order in question, an unusual order, affecting Only one individual and occuring not only off the battlefield but during a time when the plaintiff was not in active service, is not likely to have a deleterious effect on military decisionmaking generally. -~80a- violation, the remedy will be a court-ordered reinstatement, rather than the kind of ongoing judicial oversight held inappropriate in Gilligan. Under Dillard, Jorden's claims for reinstatement are reviewable, As we have explained above, Chappell neither required nor _ forbade the district court from dismissing Jorden's claims for reinstatement. We believe the law of this circuit, supported by considerations of policy, dictates that these claims should not have been dismissed. l7opviously, the claims for reinstatement against state defendants are properly brought ' under § 1983. Jurisdiction over defendant Walker, Chief of the NGB, is maintainable either under § 1983 or directly under_ the Constitution. See Knights of the kKlu Klux Klan v. East Raton Rouge Parish, F335 F.2a O95, IVY {tn op | 1984) (federal officials who conspire or act (FOOTNOTE CONTINUED ON NEXT PAGE) -S8la- (FOOTNOTE CONTINUED) jointly with state officials may be liable under § 1983); Reuber v. United States, 750 F.2d 1039, 1061 (D.C. Cir. 1984) (Federal injunctive relief is available directly under the Consti- tution against federal actors committing constitutional violations). -82a- IV. Conclusion For the reasons stated above, we hold that the district court was correct in dismissing Jorden's damages claims, but incorrect in dismissing his claims for reinstatement, Thus, on remand, if Jorden can demonstrate that the discharges violated his’ consti- tutional rights, he is’ entitled to reinstatement. We shall affirm the judgment of the district court insofar as it dis- misses plaintiff's damages claims and dismisses all claims against the NGB. We shall reverse the judgment of the district court insofar as it dismisses plaintiff's claims for injunctive relief against the individual defendants, and shall remand this case for’ further proceedings. -83a- GIBBONS, Circuit Judge, dissenting. I join the opinion of the court to the extent that it reverses’ the district court's dismissal of Jorden's claims for injunctive relief. However, I disagree with the majority's dis- position of the damage claims, and I dissent on this point. The issue presented by Jorden's appeal of the district court's dismissal of his damage claims is whether a state national guard official is immune from a section 1983 suit brought by another member of the national guard unit. The Supreme Court frequently has addressed claims bearing on immunities available to section 1983 defendants afid in doing so has delineated a relatively straight- -84a- forward analysis for assessing such claims, Resort to that controlling analysis in this case makes quite clear that the defendants here are not immune from damage liability under section 1983. In assessing immunity claims by 1983 defendants, the Court first has looked to see if any relevant immunity existed prior to the enactment of section 1983. If such immunity did exist, the Court has then looked at the legislative history that accompanied enactment of section 1983 to see if it reveals any congressional intent’ to abolish that immunity. Should no such intent manifest itself, the Court finally has weighed policy considera- tions relevant to the asserted immunity. Only when all three conditions have been Satisfied -- the existence of pre- existing immunity, the absence of congressional intent to abolish that -85a- immunity, and the absence of policies disfavoring immunity -- has the Court held the defendant to be immune, See City of Newport v. Fact Concerts, Inc., 453 U.S. 247, 258-71 (1981) ("Because absolute immunity from such’ damages obtained at common law and was_ un- disturbed by the 42d Congress, and because that immunity is compatible with both the purposes of § 1983 and general principles of public policy, we hold that a municipality is immune from punitive damages under 42 U.8.C. § 1983."); Imbler v. Pachtman, 424 U.S. 409, 417-29 (1976) (employing same analysis in holding that state prosecu- tors are immune from section 1983 damage suits in certain circumstances); Schueur v. Rhodes, 416 U.S. 232, 238-49 (1974) (employing same analysis in holding that a state governor, senior state national ~-~86a- guard officers, and the president of a state-controlled university were not absolutely immune’ from~ section = 1983 damage suits in certain circumstances) ; Pierson v. Ray, 386 U.S. 547, 553-57 (1967) (employing same analysis in holding that a state judicial officer was absolutely immune and state police officers had good-faith immunity from section 1983 damage suits in certain circumstances); f. Tenney v. Brandhove, 341 U.S. 367, 372-76 (1951) (employing similar analysis in holding that immunity-like privilege accorded legislators immunized state legislators from section 1983 damages suits in certain circumstances). In this case, in which state national guard officers contend that they are absolutely immune from a damage suit brought by a subordinate, one can- not progress past the first step of the -87a- analysis. Not only were military offi- cers not immune from such damage actions prior to enactment of section 1983, the Supreme Court, in a case decided shortly before the passage of section 1983, held expressly that they were liable in such actions. See Wilkes v. Dinsman, 48 U.S. 93, 135-37, 7 How. 88, 128-30 (1849) (reversing trial court dismissal of enlisted man's suit against superior officer and holding that defendant offi- cer was not absolutely immune from . 1 damage action.) Thus, unless Judge lfhe Court subsequently affirmed this holding in Dinsman v. Wilkes, 53 U.S. 414, 428, 430, 12 How, 402-03, 404-05 (1851). -88a- Becker is prepared to argue that in enacting section 1983 Congress created a new immunity available to the defendants in this case, controlling precedent precludes any holding that the defen- dants in this case are immune to the section 1983 damage claim. To his credit, Judge Becker acknowledges the Supreme Court's methodology for evaluating immunity claims asserted by state officials de fending section 1983 suits, see Typescript at 15, and notes that prior to the enactment of section 1983 military officials were not immune from damage suits, see Typescript at 9. However, other than to note that his holding is "troublesome in one respect", Typescript at 15, he offers no expla- nation of how the holding squares with the acknowledged methodology or with the noted immunity law. -89a- L What Judge Becker does offer in defense of his holding is Butz v. Economou, 438 U.S. 478 (1978), and Chappell ov. Wallace, 462 U.S. 296 (1983). More specifically, he asserts first that Butz stands for the prop- osition that the immunity available to section 1983 defendants is the same as that available to similar defendants sued under a Bivens sane From this he argues that, because, according to him, the Supreme Court held in Chappeli that federal military officers are immune from Bivens' suits, state national guard officers are thus immune from section 1983 damage suits. Type- script at 13-17. This argument is without merit. -90a- First, Judge Becker mischarac- terizes the holding of Butz. In that case the plaintiffs brought a_ Bivens action against officials of the execu- tive branch of the federal government. The district court and the court of appeals had rejected the defendants' assertions that they were absolutely immune, and the defendants had appealed. In assessing the defendants’ claim to absolute immunity, the Court canvassed one hundred and fifty years of Supreme Court case law that had held federal executive branch officials to be liable in damage suits in various’ circum- stances, see id. at 486-89, and also reviewed cases that had held that state officials were not absolutely immune from section 1983 damage actions. see id. 496-504. Relying on these two lines. -9la- of cases, the Court held that’ the defendants were not absolutely immune from Bivens damage liability. In so holding the Court, using the language quoted by Judge Becker, see Typescript at 14, rejected the de fendants' assertion that they were entitled to greater immunity than were their state counterparts. Judge Becker reads Butz to stand for the “unequivocal command .. . that Bivens' claims and § 1983 suits are to be treated as identical for the purpose of immunity." Typescript at 14. To the extent that statement suggests -- as Judge Becker's analysis indicates -- that Butz holds that any state de fendant sued for damages under section 1983 is absolutely immune if that defendant's federal counterpart would be absolutely immune to a Bivens claim, he is dis- torting Butz. Furthermore, implicit in such a suggestion is the assertion that Butz modifies the cases in which the Court has delineated pellucidly the analysis -- discussed above -- appro- priate for determining when state officials are immune from section 1983 damage actions. Nothing in Butz, or in Fact Concerts, which was decided after Butz, supports such a novel assertion. Even if one were to assume for the purposes of argument that Butz establishes the proposition for which Judge Becker cites it, the reasoning underlying his resolution of the immunity issue is still flawed. Judge Becker argues that in light of Butz the state national guard defendants are immune from this section 1983 suit because, he asserts, the Supreme Court -93a- held in Chappell that federal military officials are immune to Bivens suits. Yet this argument is unavailing, for Chappell does not hold what Judge Becker suggests it does. In Chappell enlisted naval men filed a Bivens suit against their Superior officers, seeking damages for alleged constitutional violations. The district court dismissed the plaintiff's complaint on the grounds that the under- lying military actions could not be reviewed by a civilian court, that the defendants were immune, and that the plaintiffs had failed to exhaust administrative remedies. 462 U.S. at 298. The Court of Appeals for the Ninth Circuit reversed, holding that district court had incorrectly assessed the justiciability and immunity claims. Id. The defendants then appealed to the Supreme Court. -94a- In a unanimous decision’ the Court reversed the Ninth Circuit. However, contrary to the necessary implication of Judge Becker's argument, that reversal was not predicated on the conclusion that the defendants’ were immune from suit. Indeed, it is quite clear that the Court did not address the issue of the defendants' immunity. Rather, the decision dealt only with the propriety of extending the judicially- created Bivens remedy to the plaintiffs, as the Court focused exclusively on whether the "special factors counselling hesitation" were present. See id. at 298-304. This reading of Chappell is corroborated by the Court's express reference to Wilkes, which it distin- guished on the grounds that “it involved -95a- a well-recognized common-law cause of action . ..and did not ask the Court to imply a new kind of cause of action." Id. at 305 n.2. Finally, the issue remains whether the state national guard officials whose liability we consider here are the same as the federal naval officers whose liability the Court considered in Chappell. Resolution of this issue is critical because, even if Judge Becker's interpretation of Butz and Chappell were correct, that inter- pretation would allow one to conclude that the defendants here are immune from suit only if one concluded that they are state equivalents of the federal offi- cials who were the defendants in Chappell. -96a- Judge Becker does not attempt to argue that for the purposes of his analysis state national guard officials are the same as federal military officers. Rather, he sidesteps the issue by asserting blithely that we cannot “evade the command of Butz by stating that, as a matter of policy, immunity for federal military officers is more important than immunity § for state military officers." Typescript at 16. This position is contrary to Supreme Court precedent. In Nixon v. Fitzgerald, 457 U.S. 731 (1982), the Court in considering the President's immunity to civil liability, faced the argument that, because it had held in Scheuer v. Rhodes, 416 U.S. 232 (1974), that governors were not absolutely immune from civil liability, the President, by virtue of the similarity -97a- of his position to that of a governor, also was not absolutely immune. The Court expressly rejected this argument, choosing instead to assess the propriety of absolute immunity in light of the President's speci fic constitutional responsibilities. Id. at 749-50. The Court's resort to this analysis makes clear that the Courts of Appeals, when considering granting to state officials immunities conferred upon their federal analogues, should not, as Judge Becker does, automatically immunize the _ state officials. Turning to the substance of the matter, the federal military and state national guards differ in obvious and signi ficant ways. As the Court explained in Chappell, the principal rationale for barring intramilitary damage actions by federal personnel is -98a- the concern for "disruption of the peculiar and special relationship of the soldier to his superiors that might result if the soldier were allowed to hale his superiors into court." 462 U.S. at 304 (citations and internal punc- tuation omitted). Whatever one might think of the validity of this reasoning as it pertains to the federal military, it simply is not’ relevant to state national guards. While those organi- zations have their military aspects, they are principally civilian in character, and the interrelationships of their members are principally civilian in character. The specifics of this case highlight these facts. Jorden was hired by the PaANG as ae-— civilian technician, and he enlisted only because -99a- membership in the guard wasS a pre- requisite to civilian employment. As a member he was required to serve in a military capacity for only fifteen days out of the year. During the rest of the time he served as a civilian employee and was not subject to military command. Thus it is quite clear that the attenuated concern for’ military discipline in this context bears no resemblance to the concern for such in the federal context. Consequently, the rationale for shielding federal military officers from damage suits does not support shielding state national guard officials from similar avite.* 2 Judge Becker attempts to equate state national guards with the federal military by pointing out that national guards are federal reserve components (FOOTNOTE CONTINUED ON NEXT PAGE) -100a- acneieieniaiia Judge Becker's argument’ that the Supreme Court's holdings in Butz and Chappell compel the conclusion that the state national guard officers who are the defendants in the case before us are (FOOTNOTE CONTINUED) and by noting that they might be involved in hostilities in case of a “surprise attack" on this country. Typescript at 16-17. By this reasoning, the military- discipline rationale of Chappell would bar conscriptable male civilians’ from suing military officials for damages, for they are as likely to be involved in hostilities as is any member of a state national guard. Furthermore, Judge Becker's’ effort to equate state national guards with the federal military ignores the important differences in the roles of those two organizations. State national guards serve to protect the states from domestic civil disorder. By contrast, the federal military -- and the national guards, when federalized -- serve to protect the country from external threats. Indeed, federal law prohibits the federal military from participating in domestic security operations. See Posse Comitatus Act. 18 U.S.c.—§ 1385 (1982). immune to a section 1983 damage suit is indefensible. Further, controlling Supreme Court precedent governing the recognition of immunities available to section 1983 defendants makes clear that these defendants are not absolutely immune from ae_e section 1983 suit for damages, I therefore dissent from the majority opinion to the extent it holds otherwise. A TRUE COPY: Teste: Clerk of the United States Court of Appeals for the Third Circuit -102a- IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA ULUS JORDEN, JR., CIVIL ACTION Vv. : No. 85-0670 NATIONAL GUARD BUREAU, : et al. : MEMORANDUM OF DECISION MCGLYNN, J. SEPTEMBER 24, 1985 In this action, plaintiff, Ulus Jorden, Jr., a former member of the Pennsylvania Air National Guard (PaANG) and PaANG technician, alleges he was unlawfully discharged from the PaANG in retaliation for the exercise of his rights under the First and Fourteenth Amendments to the Constitution and 42 u.S.C. §§ 1983, 1985 and 1986. Plain- tiff further alleges a cause of action against defendants for defamation under Pennsylvania law and requests this court -103a- to exercise pendent jurisdiction. Plaintiff claims that he was honorably discharged from the PaANG because he registered complaints about alleged misconduct and improprieties occurring at the Willow Grove Naval Air Station. Named in the complaint as defendants are the National Guard Bureau; Emmet H. Walker, JE oe Chief, National Guard Bureau; Richard M, Scott, Adjutant General of Pennsylvania; John D. Campbell, Colonel, Pennsylvania Air National Guard; and Henry cC. Frisby, Major, Pennsylvania Air National Guard. Presently before me is defendants ' Motion to Dismiss under Federal Rule of Civil Procedure 12(b). Assuming the truth of the allegations in his amended complaint, I will, nevertheless, grant defendants' motion. -104a- The National Guard is a part of the organized militia of the United States. 10 U.S.C. § 101. As an inte- gral part of the first line defenses of the United States, its strength and organization must be maintained and assured at all times. 32 U.S.C. § 102. As a military force, the Guard is unique because each unit within the Guard is responsible to both the state and feder- al government and serves both in tim - of military and civilian crisis. Members of the Air National Guard of the respec- tive states concurrently hold membership in a distinct federal military organi- zation, the Air National Guard of the United States. 10 U.S.C. § 8351(a). The Guard hires full-time civilian "technicians" to perform essential and varied services such as maintenance of equipment and facilities, training and other support operations. By virtue of the National Guard Technicians Act of 1968, 32 U.S.C. § 709, these technicians, formerly referred to as caretakers and clerks, gained federal employee status. The Act requires, however, that techni- cians, unless otherwise exempted by regulation, must be uniformed members of the National Guard of the United States. 32 U.S.C. § 709(b). The State Adjutant General is required to terminate the civilian employment of anyone who is -106a- separated from the National Guard. 32 U.S.C. § 709(e)(1)./ Plaintiff alleges that on October 3, 1984, defendant Scott, in his capacity as the Adjutant General of Pennsylvania, issued Special Order AA- 472 relieving plaintiff from assignment with the llth Combat Support Squadron at the Willow Grove Naval Air Station and honorably discharging plaintiff from the PaANG, effective the same date. Com- plaint @ 12. Because of the discharge, 132 u.s.c. § 709(e)(1) states: (1) a technician who is employed in a position in which National member- ship is required as a condition of employment and who is separated from the National Guard or ceases to hold the military grade specified for his position by the Secretary shall be promptly separated from his techni- cian employment by the adjutant gen- eral of the jurisdiction concerned. -107a- plaintiff's civilian employment was terminated pursuant to 32 U.S.C. § 709(e)(1). Complaint @ 13. Plaintiff contends that the Order of October 3, 1984 was issued because of plaintiff's refusal to comply with a July 13, 1984 Order, issued at the direction of defendant Campbell, which “ordered the plaintiff to active duty for 23 days for ‘special training,'” and _ specifically “to report to the Malcolm Grow Medical Center at the Andrews Air Force Base in Mar yland for medical (psychiatric) evaluation.” Complaint @ 15. Plaintiff claims he was within his’ rights to refuse to comply with the Order and further claims that the Order was in retaliation for registered complaints about alleged misconduct and impropri- eties, including racial discrimination against plaintiff, at the Willow Grove Naval Air Station. -108a- The Supreme Court's decision in Chappell v. Wallace, 462 U.S. 296 (1983), is controlling here and dictates dis- missal of this action. In Chappell, enlisted military men brought an action against their superior officers seeking damages, declaratory judgment, and injunctive relief for alleged racial discrimination in assignments and performance evaluations. Id. at 297. The Supreme Court analyzed the direct constitutional claims in terms of whether they stated a cause of action under Bivens v. Six Unknown Named Agents, 403 U.S. 388 (1971). The Court then reviewed the rationale of Feres v. United States, 340 U.S. 135 (1950), which held that the United States is not liable, under the Federal Tort Claims Act, for injuries to military personnel which “arise out of or are in the course of -109a- activity incident to service." 340 U.S. at 146. In accordance with this analy- sis the court concluded that "the unique disciplinary structure of the Military Establishment and Congress' activity in the field constitute ‘special factors' which dictate that it would be inappro- priate to provide enlisted military personnel a Bivens type remedy against their superior officers." Chappell, 462 U.S. 304. Quoting its previous decision in Orloff v. Willoughby, 345 U.S. 83, 93-94 (1953), the Court stated: [TJ]udges are not given the task of running the Army. The responsibil- ity for setting up chan- nels through which... . grievances can be con- sidered and fairly set- tled rests upon the Con- gress and upon the Presi- dent of the United States -110a- and his subordinates. The military constitutes a specialized community governed by a_ separate discipline from that of the civilian. Orderly government requires that the judiciary be as scrupulous not to inter- fere with legitimate Army matters as the Army must be scrupulous not to interfere in judicial matters. id. at 301. The Court further found that Congress has exercised its plenary constitu- tional authority over the military, has en- acted statutes regu- lating military life, and has established a comprehensive internal system of justice to regulate military life, taking into account the special patterns that de fine the military structure, The re- sulting system provides for the review and remedy of complaints and griev- ances such as those pre- sented by respondents. Id. at 302. -llla- The rationale of Chappell applies to the case at hand. Although this case involves reserve officers and personnel rather than regular active duty officers and personnel, the need for routine military decision-making unimpeded by judicial interference is the same. Such was the - conclusion reached by the Tenth Circuit in Martelon v. Temple, 747 F.2d 1348 (10th Cir. 1984), cert. denied, 105 S.Ct. 2675, 86 L.Ed. 2d 694 (1985), and by Judge Huyett in this district in Dixon v. Pennsyl- vania Army National Guard, No. 82-5121 (E.D. Pa. filed January 13, 1984). Plaintiff argues that the military action taken against him was a subterfuge to cause his dismissal as a civilian technician and, thus, Chappell -ll2a- should not apply. This argument was rejected by the Supreme Court in Tennes- see v. Dunlap, 426 U.S. 312 (1976). In Dunlap, plaintiff alleged that he was denied reenlistment with the National Guard to effect his termination as a technician under 32 U.S.C. § 709(e)(1) and thereby circumvent the "for cause" requirements of 32 U.S.C. § 709(e) (3). The Court of Appeals for’. the Sixth Circuit held that if a denial of reenlistment reflects no more than a desire to terminate employment as a technician, cause must be shown’ under § 709(e)(3). 426 U.S. at 315. The Supreme Court reversed, finding that the 232 u.S.C. § 709(e)(3) states: (3) a technician who is’ employed may, at any time, be separated from his technician employment for cause by the adjutant general of the jurisdiction concerned. -ll3a- "for cause" requirement of § 709(e)(3) is only one of several bases for ter- minating a technician's employment and is not intended to have any effect upon or limit one's separation from the National Guard through termination under § 709(e)(1). Id. at 664. The Supreme Court, therefore, held that the "for cause" basis of 709(e)(3) does = not provide a foundation for a due process claim because it does not create a prop- erty inhanan in continued employment. Id. Plaintiff's reliance on Bollen v. National Guard Bureau, 449 F.Supp. 343 (W.D. Pa. 1978), is misplaced. In that case an Air National Guard colonel was retired after thirty years of service as is generally done under 10 U.S.C. § 8851(a). Id. at 344. The court found that Bollen possessed a property interest -114a- in continued employment because of the language of a letter from the Chief, National Guard Bureau, that authorized the retention of certain named officers until age sixty. Id. at 344-45, Although not applicable to Bollen, the court stated that this property interest is qualified by other bases of separa- tion found in § 709(e)(1), (2) and (3). In the present case, plaintiff has not alleged that his name appeared on any such letter and, moreover, plaintiff was discharged under § 709(e)(1). For these reasons, a suit against plaintiff's superior officers in the PaANG and the Chief of the National Guard _ Bureau alleging constitutional violations can- not be maintained, -115a- SET FLL ETE LR IRL FRAP LP - a ia Lat ll If. Chappell involved a Bivens-type claim for relief. In this case plain- tiff additionally asserts a cause of action under the Civil Rights Act of 1871, 42 U.S.c. § 1983. This claim must also be dismissed. In Gilligan v. Morgan, 413 U.S. 1 (1973), the Court refused to entertain a suit by university students’ under § 1983 asking that the court examine the pattern of training, weaponry and orders of the National Guard stating: It would be difficult to think of a clearer example of the type of governmental action that was intended by the Constitution to be left to the political branches ‘directly responsible - as the judiciary is not - to the electoral process. -116a- Moreover, it is difficult to conceive of an area of governmental activity in which the courts have less competence. 413 U.S. at 10. Plaintiff's ' § 1983 claim has no merit. Accord Martelon v. Temple, supra; Dixon v. Pennsylvania Army National Guard, supra. III. In Court Four of his complaint, plaintiff alleges a conspiracy by defen- dants to discriminate against plaintiff on the basis of his race in violation of 42 u.S.c. § 1985(3). In Chappell, the Supreme Court declined to address whether an alleged conspiracy among defendants in violation of 42 U.S.C. § 1985(3) could be maintained. 426 U.S. at 305 Reade However, based upon the Court's analysis in Chappell and Feres v. United -117a- States, supra, this claim must also be dismissed. The Ninth Circuit came to the same conclusion with respect to 42 U.S.C. § 1985(1), in Mollnow v. Carlton, 716 F.2d 627 (9th Cir. 1983), cert. denied, 104 S.Ct. 1595, 80 L.Ed. 2d 126, reh'd denied, 104 S.Ct. 2162, 80 L.Ed. 2d 547 (1984). That court held that Congress did not intend § 1985(1) to provide a remedy for military subordinates against their superiors in spite of the fact that 9 1985(1) legislation specifically authorizes suits by injured federal officers. In arriving at this decision, the court applied the rationale of Chappell and Feres regarding the peculiar and special relationship between an enlisted man and his’ superiors, the effects on discipline by the maintenance -118a- of such suits, and Congress' use of its plenary authority over the military to establish a system of review and redress for the military. The court stated: A § 1985(1) action would strike directly at that special military rela- tionship, perhaps even more so than an action for negligence. In a negligence action, a spontaneous event has occurred; someone has suffered an accident and another is at fault. Under § 1985(1), how- ever, an action would lie even for calculated decisions made in the judgment and discretion of a superior military officer, so long as the subordinate alleged the superior had _ interfere* with his military duties. Then a civil jury would be impaneled to inquire into the nature of this uniquely military matter, and damages could be assessed against the superiors for the exer- cise of their judgment and discretion. Such a result would offend the principle announced in Chappell -119a- 716 F.2d at 631. The same reasoning applies to claims under §$ 1985(3). Con- gress has enacted a “comprehensive internal system of justice to regulate military life, taking into account the special patterns that define the military structure." Chappell, 426 U.S. at 302. Section 1985(3) is completely foreign to that system. If the subordi- nate believes his superiors have con- spired to violate his constitutional and civil rights, he must attack their actions before military tribunals. IV. Plaintiff further alleges that defendants knew plaintiff was being discriminated against in violation of § 1985 but failed to take steps to prevent it in violation of 42 U.S.C. § 1986. Section 1986 presupposes the -120a- existence of a claim under § 1985. Sherwood v. Tomkins, 716 F.2d 632 (9th Cir. 1983), Williams v. St. Joseph Hospital, 629 F.2d 448, 452 (7th Cir. 1980). Having dismissed the § 1985(3) claims, the § 1986 claims must also be dismissed against the individual defen- dants. Plaintiff has sued the National Guard Bureau in its capacity as the body which would be required to implement a judgment ordering reinstatement and back pay to plaintiff if he were successful in this suit. Because I have dismissed the complaint on all substantive counts, there is no relief available to plain- tiff which would require action by defendant. Accordingly, the complaint -12la- is dismissed against the National Guard Bureau. VI. Plaintiff's final claim for relief is a common law action for defamation for which plaintiff requests this court to invoke pendant jurisdic- tion. Having dismissed all federal claims, this claim will also be dismissed. VII. Plaintiff is not without an alternative remedy.” Pursuant to its plenary authority, Congress has provided 3Indeed, an alternative basis for dismissal of this action is plaintiff's failure to exhaust the administrative remedies available. See Penagaricano v. Llenza, 747 F.2d 55 (lst Cir. 1984); Mindes v. Seaman, 453 F.2d 197 (5th Cir. 1971). -122a- systems for review and remedy of complaints by military personnel. One such system is the Air Force Board for Correction of Military Records (the "Board"). The Board has jurisdiction to correct the records of the Air National Guard of the United States if it finds that an error has been made or an injustice committed. 10 U.S.C. § 1552(a). Broad relief is available through this Board, including claims for lost pay, allowances, or other pecuniary benefits that may result from the correction of Air Force’ records. 10 U.S.C. § 1552(c) and (d). To provide plaintiff with additional relief would be contrary to Congressional intent and, thus, plaintiff's complaint is dismissed. An appropriate order follows. -123a- IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA ULUS JORDEN, JR., Vv. NATIONAL GUARD BUREAU, et al. CIVIL ACTION No. 85-0670 ORDER AND NOW, this 24th day of SEPTEM8ER, 1985, upon consideration of the motion of the Commonwealth defen- dants and the federal defendants’ to dismiss the complaint against them, the memoranda submitted by the parties, and for the reasons set forth in the accom- panying memorandum, it is ORDERED that the defendants' motion to dismiss is GRANTED and the complaint is DISMISSED as to all defendants. BY THE COURT /s/ Joseph L. McGlynn, Jr. JOSEPH L. McGLYNN, JR., J. -124a- --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385011_1879%3A1. Public record. Not legal advice.