Petition for Writ of Certiorari — McDaniel v. Johnson

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A us 4

Supreme Court, U.S,

) - FILED

JUN 16 1988

B6-20 87 | cccmr smn

——_-«--

October Term, 1985

—

LTC BILLY McDANITIEL,

Petitioner,

ROY JOHNSON and JOHN SHELLER,

Res ondenis.

PETITION FOR WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

rs’

W. Cary Epwanrps

Attorney General of New Jersey

Richard J. Hughes Justice Complex

ON 112

Trenton, New Jersey 08625

(609) 292-5573

Attorneys for Petitioner

James J. Ciancta

Assistant Attorney General

Of Counsel

Dorotuy DonNELLY*

Deputy Attorney General

*Cornsel of Record

COCKLE LAW BRIEF PRINTING CO., (800) 835-7427 Ext. 333

QUESTIONS PRESENTED FOR REVIEW

Whether the Third Circuit Court of Appeals erred in

ruling that the Adjutant General (acting as an agent of

the Seeretary of the Air Force) and federal technician

supervisory personnel act under the color of state law for

purposes of 42 U.S.C. § 1983 when participating in per-

sonnel decisions exclusively under the authority of 32

U.S.C. § 709.

Whether the comprehensive system of remedies avail-

able for federal employees including technicians evidences

congressional intent to preclude a 42 U.S.C. § 1983 remedy.

STATEMENT OF THE PARTIES

The appellant in Third Circuit Docket No. 84-5859 was

Lieutenant Colonel (LTC) Billy McDaniel. Appellants in

Docket No. 84-5860 were Major General (Ret.) Wilfred C.

Menard, Brigadier General Charles Young and Colonel

(Ret.) John Murphy. Appearing as amici curiae were the

Adjutants General Association of the United States, the

State of California and the Adjutant General of the Cali-

fornia National Guard.

RO Pee Re ee nT

isi

TABLE OF CONTENTS

Page

QUESTIONS PRESENTED FOR REVIEW .... i

STATEMENT OF THE PARTIES il

OPINION BELOW

JURISDICTION

STATUTORY PROVISIONS INVOLVED . 1

STATEMENT OF THE CASE | 4

REASONS FOR GRANTING THE WRIT:

POINT I

THIS COURT SHOULD GRANT THE

WRIT IN ORDER TO FINALLY AND

AUTHORITATIVELY RESOLVE THE

CONFLICT CREATED BY THE DECI-

SION BELOW. 7

POINT II

THIS COURT SHOULD GRANT THIS PE-

TITION FOR A WRIT OF CERTIORARI

BECAUSE THE DECISION OF THE

THIRD CIRCUIT ENDANGERS NATION-

AL SECURITY. 16

CONCLUSION 7 18

APPENDICES

Appendix A — Opinion of the Third Circuit Court of

Appeals No. 84-5859 and 84-5860 la

Appendix B — Opinion of the Third Circuit Court of

Appeals No. 84-5877 and 84-5888 45a

Appendix C -— Opinion of the District Court certifying

a controlling question of law 66a

Appendix D — Opinion of the District Court denying

motions on immunity grounds ... 74a

TABLE OF CONTENTS—Continued

Page

Appendix E — Order denying petition for rehearing... 85a

Appendix F — Order granting motions for recall of

mandate and to file petition for rehearing _..._. 87a

Appendix G — Order granting motion to certify a con-

trolling question of law 89a

Appendix H — Abbreviated Administrative Record _. $2a

Appendix I — Former text of 32 U.S.C. § 709 _..__._._.108a

TABLE OF AUTHORITIES

Cases Crrep

American Federation of Government Employees,

AFL-CIO, Local 2953 v. Federal Labor Rela-

tions Authority, 730 F.2d 1534 (D.C. Cir.

1984) 8

Askew v. Bloemaker, 548 F.2d 673 (7th Cir.

1976) 9

Bivens v. Six Unknown Named Agents of the Fed-

eral Bureau of Narcotics, 403 U.S. 388 (1971) ...6, 10, 14

Bush v. Lucas, 462 U.S. 367, (1983) 7, 10, 14

Chaudoin v. Atkinson, 494. F.2d 1323 (3rd Cir.

1974) 10, 15

Ellis v. Blum, 643 F.2d 68 (2d Cir. 1981) G

Feres v. United States, 340 U.S. 135 (1950) 00,16

Jackson v. Metropolitan Edison Co., 419 U.S. 345

(1974) 11

Johnson v. Orr, 776 F.2d 75 (3rd Cir. 1985) 1, 5, 15

Johnson v. Orr, 780 F.2d 386 (3rd Cir. 1986) 1, 9, 10, 14

TABLE OF AUTHORITIES—Continued

Page

King v. Smith, 392 U.S. 309 (1968) 11

Krynicky v. University of Pittsburg, 742 F.2d 94

(3rd Cir. 1984) 11

Lasher v. Schafer, 460 F.2d 343 (3d Cir. 1972) Ss: 13

Lynch v. Donnelly, — U.S. — (1985) 12

Lynn v. U.S. Dept. of Health and Human Services,

583 F. Supp. 532 (D.C.N.Y. 1984) 9

Lugar v. Edmondson Oii Co., Inc., 457 U.S. 922

(1982) 11,12

Maryland v. United States, 381 U.S. 41 (1965)

vacated 382 U.S. 159 (1965) 13

Middlesex County Sewage Authority v. Nat’l Sea

Clammers Assn., 453 U.S. 1 (1981) 14

Mollnow v. Carlton, 716 F.2d 627 (9ih Cir. 1983) ;

Monroe v. Pape, 365 U.S. 167 (1961) 10

NeSmith v. Fulton, 615 F.2d 196 (5th Cir. 1980) —.10, 11

New Jersey Air National Guard v. FLRA, 677

F.2d 276 (1982), cert. denied sub nom AFGE

Local 2486 v. NJ ANG, 459 U.S. 988 (1982) 000

Pickering v. Board of Education, 391 U.S. 563

(1968) 17

Polk County v. Dodson, 454 U.S. 312 (1981) 11,12

Rivera v. Heckler, 568 F. Supp. 235 (D.N.J. 1983) 0. = 9

Rowe v. State of Tenn., 609 F.2d 259 (6th Cir.

1979) 10, 11, 16

Screws v. United States, 325 U.S. 91 (1945) 20.10

TABLE OF AUTHORITIES—Continued

Pages

Smith v. Robinson, 104 S.Ct. 3457 (1984) 14

United States v. Brown, 348 U.S. 110 (1954) 0. «16

United States v. Muniz, 374 U.8. 150 (1963) 16

Vargas v. Chardon, 405 F. Supp. 1348 (D.P.R.

1975) 9

Statutes Crrep

5 U.S.C. § 701 4, 5,14, 15

5 U.S.C. § 7101 15

10 U.S.C. § 311 7

10 U.S.C. § 672 8

18 U.S.C. § 52 10

28 U.S.C. § 1254(1) 1

28 U.S.C. § 1292(b) 5, 6

28 U.S.C. § 1331 6

28 U.S.C. § 1343 6

32 U.S.C. § 101 8

32 U.S.C. § 104(c) 8

32 U.S.C. § 304 8

32 U.S.C) § 502 8

32 U.S.C. § 503 8

32 U.S.C. § 709 1, 5, 13, 14, 15

32 U.S.C. § 709(a)-(e) 3,13

32 U.S.C. § 709(e) 4,13

42 U.S.C. § 1983 passim

42 U.S.C. § 1985 16

Vii

TABLE OF AUTHORITIES—Continued

Pages

N.JS.A. 38A:1-1 8

N.J.S.A. 59:1-1 16

CoNSTITUTIONAL PRovISION

U.S. Constitution, Art. 1, ¢ 8, cl. 16 7

OrHer AUTHORITIES

H.R. Rep. 1823, 90th Cong., 2d Sess. 1 (1968) 0. 1

S. Rep. 1446, 90th Cong., 2d Sess. 1 (1968) 8

Zagrans, Under Color of What Law: A Recon-

structed Model af § 1983 Liability, 71 Va. L.

Rev. 499 (1985) . 10

F.P.M. 630.11-.14 8

N.G.R. 600-593-F1

Fed.R. Cw.P, 52(b) 5

Army Magazine, Vol. 24, No. 8, Aug. 1974 12

OPINION BELOW

The decision in issue is reported at Johnson v. Orr,

780 F.2d 360 (3rd Cir. 1986), reh’g denied (March 16, 1986)

(App. la). A second decision detailing other aspects of the

case is reported at Johnsen v. Orr., 776 F.2d 75 (3rd. Cir.

1985) (App. 45a).

JURISDICTION

The opinion of the Third Circuit Court of Appeals was

filed January 13, 1985 (App. A). A timely petition for re-

hearing with a suggestion for rehearing en banc was denied

March 16, 1986 (App. E). Jurisdiction of the Court is

invoked pursuant to 28 U.S.C. §1254(1).

STATUTORY PROVISIONS INVOLVED

Two statutory provisions are involved in this petition,

the Technicians Act 32 U.S.C. § 709 and 42 U.S.C. § 1983:

THE TECHNICIANS ACT

(a) Under regulations prescribed by the Secretary

of the Army or the Secretary of the Air Force, as the

case may be, and subject to subsection (b) of this sec-

tion persons may be employed as technicians in —

(1) the administration and training of the Na-

tional Guard; and

(2) the maintenance and repair of supplies is-

sued to the National Guard or the armed forces.

(b) Except as prescribed by the Secretary concerned,

a technician employed under subsection (a) shall, while

so employed, be a member of the National Guard and

hold the military grade specified by the Secretary con-

cerned for that position.

jutants general referred to in section 314 of this title,

to employ and administer the technicians authorized

by this section.

(d) A technician employed under subsection (a) is an

employee of the Department of the Army or the De-

partment of the Air Force, as the case may be, and an

employee of the United States. However, a position

authorized by this section is outside the competitive

service if the technician employed therein is required

under subsection (b) to be a member of the National

Guard.

(e) Notwithstanding any other provision of law and

under regulations prescribed by the Secretary con-

cerned — —

(1) a technician who is employed in a position in

which National Guard membership 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 concerned shall be promptly separated

from his technician employment ‘by the adjutant

general of the jurisdiction concerned;

(2) a technician who is employed in a position

in which National Guard membership is required

as a condition of employment and who fails to

meet the military security standards established

by the Secretary concerned for a member of a re-

serve component of the armed force under his

jurisdiction may be separated from his employ-

ment as a technician and concurrently discharged

from the National Guard by the adjutant general

of the jurisdiction concerned;

(3) a technician may, at any time, be separated

from his technician employment for cause by the

adjutant general of the jurisdiction concerned;

(4) a reduction jn force, removal, or an adverse

action involving discharge from technician em-

ployment, suspension, furlough without pay, or

reduction in rank or compensation shall be ac-

complished by the adjutant general of the juris-

diction concerned;

‘5) a right of appeal which may exist with re-

spect to clause (1), (2), (3), or (4) shall not ex-

tend beyond the adjutant genera! of the jurisdic-

tion concerned; and

(6) a technician shall be notified in writing of

the termination of his employment as a technician

and such notification shall be given at least thirty

days prior to the termination date of such em-

ployment. [32 U.S.C. §709(a)—(e)].

42 U.S.C. § 1983

Every person who, under color of any statute, ordi-

nance, regulation, custom, or usage, cf any State or

Territory or the District of Columbia, subjects, or

causes to be subjected, any citizen of the United

States or other person within the jurisdiction thereof

to the deprivation of any rights, privileges, or im-

munities 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.

For the purposes of this section, any Act of Congress

applicable exclusively to the District of Columbia

shall be considered to be a statute of the District of

Columbia. [42 U.S.C. § 1983].

/, —_

NO EE eS ae SS Oe Fee ae” eee ee Te Fe Le eS i ee. Ee ee ey ee eee ee ee

STATEMENT OF THE CASE

Plaintiffs Roy Johnson and John Sheller were civilian

employees of the United States Air Force working as tech-

nicians with the New Jersey National Guard in accordance

with 32 U.S.C. § 709(e) (App. A). Johnson worked as a

mechanic on the bomb loading systems of jet aircraft and

Sheller worked as a mechanic on the electrical systems of

these aircraft (Ap) . 92a, 94a). Col. John Murphy, plain-

tiffs supervisor, recommended their discharge for calling a

meeting on company time to advocate a work slowdown or

disruption of the Tactical Wing Mission in retaliation for a

command decision that required technicians to work on

Labor Day weekend (App. 48a, 92a). General Charles

Young, the next level technician supervisor, accepted the

recommendation after considering plaintiffs’ statements

and other investigative reports (App. 50a). Plaintiffs have

alleged that the assistant technician personnel officer, peti-

tioner LTC Billy McDaniel, advised plaintiffs’ supervisory

personnel on the discharge.

Johnson and Sheller appealed the dismissal to Maj.

General Wilfred C. Menard, then Adjutant General of New

Jersey (App. H). Both were afforded a hearing before a

hearing examiner appointed by the United States National

Guard Bureau (App. 99a). The Adjutant General reviewed

the entire record and upheld plaintiffs’ termination from

employment (App. 105a).

Plaintiffs filed suit in federal district court requesting

a review of the agency action under the Administrative Pro-

cedures Act, 5 U.S.C. § 701, and alleging violations of their

constitutional rights to due process and freedom of speech

inter alia under 42 U.S.C. § 1983 (App. A). Col. Murphy,

LTC McDaniel, General Young and Adjutant General

Menard were named as defendants on the 42 U.S.C. § 1983

claim. Verne Orr, Secretary of The Air Force, and Major

General Francis Gerard, the present Adjutant General,

were named as the defendants on the 5 U.S.C. § 701 claim.

In response to cross-motions for summary judgment,

the district court held that the defendants acted under the

color of state law for purposes of 42 U.S.C. 4 1983, granted

summary judgment to the individual defendants on the due

process claim and denied summary judgment on the First

Amendment claim. On the claims under the APA, the Court

held that the decision of the Adjutant General was not sup-

ported by substantial evidence in the record. On a series of

motions the Court denied respondents reinstatement since

each had separated from the New Jersey National Guard,

and concurrent membership in the Guard is a prerequisite

to technician employment,” and certified a controlling ques-

tion of law under 28 U.S.C. § 1292(b).** The question was

stated : }

Whether, under authority of 32 U.S.C. § 709, technician

supervisory personne! and the Adjutant General of the

State of New Jersey, act under color of state law for

purposes of 42 U.S.C. § 1983 when participating in

personnel decisions resulting in the dismissal of two

technician employees?

*The court had earlier transferred plaintiffs’ claims for back pay

to the U.S. Court of Claims and denied defendants’ motions on

immunity theories (App. 47a).

**All other portions of that order were certified as final under

Fed. R. Civ. P. 52(b) and disposed of in Johnson v. Orr, 776 F.2d

75 (3rd Cir. 1985), a companion case, and are not in issue here

{App. B).

The Third Cireuit Court of Appeals then granted the indi-

vidual defendants’ joint petition for leave to file an inter-

locutory appeal.

The Third Circuit held that all defendants acted under

color of state law. Although conceding that the Adjutant

General acted as a federal agent in removing technicians

from federal employment, the majority reasoned that Con-

gress had left control of technician decisions at the state

level and this hybrid status allowed a § 1983 remedy (App.

15a).

One circuit judge dissented, strongly disagreeing with

the holding that a state official who is the designated agent

of the federal government acts under color of state law. The

dissent also stressed that the comprehensive employment

remedies available to federal employees precluded the avail-

ability of 42 U.S.C. § 1983 (App. 23a). A timely request for

rehearing with a suggestion for rehearing in banc was de-

nied on March 17, 1986.

The District Court had subject matter jurisdiction over

the instant action under 28 U.S.C. §§ 1331 and 1343. The

Third Circuit had jurisdiction to consider the certified

question of law under 28 U.S.C. § 1292(b).

LTC McDaniel submits that the Court should review

this matter to resolve conflicts in the application of color

of state law criteria to federal activities conducted at state

level and in order to address the anomalous result of the

Third Circuit’s decision which creates a special category of

federal employees who are permitted to sue their super-

visors for employee disciplinary decisions in a constitu-

tional tort action which parallels the relief no longer avail-

able under Bivens v. Six Unknown Named Agents of the

Federal Bureau of Narcotics, 403 U.S.C. 388 (1971). See

Bush v. Lucas, 462 U.S. 367 (1983).

This case also presents a question affecting the per-

formance of the National Guard units as a reserve force of

the United States military since technicians, although civil-

ian employees, are a full time federal presence whose mis-

sion is to ensure readiness of state located military units

for national emergencies.*

REASONS FOR GRANTING THE WRIT

POINT I

THIS COURT SHOULD GRANT THE WRIT IN

ORDER TO FINALLY AND AUTHORITA-

TIVELY RESOLVE THE CONFLICT CREATED

BY THE DECISION BELOW.

Conflicts arise in this case because of the hybrid nature

of the National Guard and the dual nature of technician em-

ployment. See New Jersey Air National Guard v. FLRA,

677 F.2d 276 (3rd Cir. 1982) cert. denied sub nom AF GE

Local 3486 v. NJ ANG, 459 U.S. 988 (1982). The National

Guard is a hybrid organization created by the U.S. Consti-

tution, Art. 1, § 8, cl. 16 under which Congress has utilized

the state militias as reserves to the standing United States

Armed Forces. 10 U.S.C. § 311. The National Guard of

*Cther petitioners in this action, General Young, General Menard

and Major Murphy are represented by the United States Attor-

ney for the District of New Jersey. A final decision on whether

they will petition for a writ of certiorari had not been made at

the time of this printing.

New Jersey represents that portion of the National Guard

of the United States that is located within the jurisdiction

of the State of New Jersey 32 U.S.C. § 101.

When not mobilized pursuant to 10 U.S.C. § 672 the

National Guard has been held to be in state service although

all training is conducted in a federal pay status 32 U.S.C.

§ 502, 503, 304. Component commands in the National Guard

extend beyond state borders, e.g., the 50th Armored Di-

vision headquartered in New Jersey with the New Jersey

National Guard has subordinate units in Vermont, Mary-

land and New Mexico 32 U.S.C. 4104(c). The National

Guard differs from the state militia which acts upon the call

of the governor to meet state emergencies or disasters, and

for which members are paid by the state N.J.S.A. 38A:1-1

et seq. Thus the mission of the National Guard as a federal

reserve differs from the mission of the state militia.

Technicians such as petitioner and respondents func-

tion within the National Guard in three ways: performing

full time civilian work in their units, performing military

training duty in their units, and being available to enter

active federal service at any time their units are called. S.

Rep. No. 1446, 90th Cong., 2d Sess. 2 (1968). American

Federation of Government Employees, AFL-CIO, Local

2953 v. Federal Labor Relaiions Authority, 730 F.2d 1534

(D.C. Cir. 1984). But, although technicians must maintain

membership in the National Guard to hold their federal

employment, technicians must take military leave from their

technician positions to serve in any military status either

with the state militia or with the National Guard FPM

630.11-.14*. Payment for National Guard training and state

*Federal Personal Manual.

militia duty is separate from technician pay NGR 600-5{3-

ies.

(a) Certiorari Should Be Granted To Resolve The

Legal Conflict Created By The Third Circuit’s

Ruling.

The Third Circuit Court of Appeals ruled that the Ad-

jutant General and the technician defendants acted under

color of state law for purposes of 42 U.S.C. § 1983 when

disciplining other federal employees. Johnson v. Orr, 780

F.2d 386 (3rd Cir. 1985) (App. A) reh’g denied (March 17,

1986). This ruling conflicts with other circuits that have

addressed the color of state law requirement in regard to

activities performed by state or federal officials at the local

level when the activities are governed by federal programs.

See Askew v. Bloemaker, 548 F.2d 673 (7th Cir. 1976),

holding that federal agents acting with state law enforce-

ment officials, and state law enforcement officials acting

dually as federal agents, did not act under color of state

law in a raid resulting from a federal investigation. See

also Ellis v. Blum, 643 F.2d 68 (2d Cir. 1981), holding state

employees following federal] regulations in issuing social

security redetermination notices were acting under federal,

not state law. Accord, Rwera v. Heckler, 568 F’. Supp. 235,

243 (D.N.J. 1983); Lynn v. U.S. Dept. of Health and Hu-

man Services, 583 F. Supp. 532 (S.D.N.Y. 1984); see also

Vargas v. Chardon, 405 F. Supp. 1348 (D.P.R. 1975) hold-

ing an adjutant generai does not act under color of state

law in administering these federal employees. These cases

**National Guard Regulation promulgated by the U.S. National

Guard Bureau.

focused upon the acts being performed and the context of

the performance.

The Third Circuit in Johnson focuses instead upon

status. Although reiterating that the Adjutant General

acts as an agent of the federal government in administer-

ing the technician program, Chaudoin v. Atkinson, 494 F.2d

1323 (3rd Cir. 1974), the court relies upon cases which find

the mixture of state and federa! functions determinative of

the color of state law test. Rowe v. Tenn, 609 F.2d 259 (6th

Cir. 1979) and NeSmith v. Fulton, 615 F.2d 196 (5th Cir.

1980). The Court chose to ignore the flawed reasoning in

each case.

The Rowe court, for example, reasoned that a

§ 1983 remedy should supplement a suit under Bivens, su-

pra, for the Court perceived a gap in remedies provided by

Bivens. Such reasoning is no longer applicable since this

Court has precluded Bivens suits in federal employment ac-

tions. Bush v. Lucas, 462 U.S. 367 (1982). Moreover, Rowe

rejected the applicability of ‘‘under color of state law’’ rea-

soning in Monroe v. Pape, 365 U.S. 167 (1961), using instead

a quote from Screws v. United States, 325 U.S. 91 (1945).

Screws, however, did not deal with 42 U.S.C. § 1983, but

with a different statute, 18 U.S.C. 452:

whoever, under color of any law, statutes, ordinance,

regulation or custom, wilfully subjects or causes any

inhabitant of any state, Territory or District to the

deprivation of any rights ... [Emphasis added]

Since the language of the statute construed in Screws dif-

fers materially from 42 U.S.C. § 1983, it cannot be used as

precedent in determining the meaning of the phrase ‘‘under

color of state law.’’ See Zagrans, Under Color of What

Law: A Reconstructed Model of § 1983 Liability, 71 Va. L.

Rev. 499 (1985). Likewise, the references in Rowe to King

v. Smith, 392 U.S. 309 (1968) provide no comparison to

the federal status in the instant case. In King, the plain-

tiffs challenged a state regulation aimed at denying aid

to families with dependent children (AFDC) benefits to a

woman who cohabited with a man, not her husband. No

challenge to the applicability of 42 U.S.C. § 1983 was made

in the King case precisely because state employees acted

pursuant to a state regulation. No federal regulation re-

quired the state officials to ban AFDC eligibility when a

woman lived with a man not her husband. Thus, state

officials acted under color of a state regulation in denying

plaintiff a property right.

In NeSmith, supra, the Fifth Circuit Court of Appeals

found state action resulted from the status of the Adjutant

General as a state employee. NeSmith, supra, 615 F.2d at

200. The court found the legislative history of the Tech-

nicians Act persuasive since administrative authority over

the technician program remained “as a matter of law at

state level. Jd. citing H.R. Rep. No. 1823, 90th Cong., 2nd

Sess. (1968), 1968 U.S. Code Cong. and Adm. News

p.3324.

Each of these cases predates this Court’s color of state

law anlysis that concentrates upon the act, rather than the

status of the actors. Lugar v. Emondson Oil Co., Inc., 757

U.S. 922 (1982); Polk County v. Dodson, 454 U.S. 312

(1981). In light of these cases, the Third Circuit’s reliance

upon Krynicky v. University of Pittsburgh, 742 F.2d 94

(3rd Cir. 1984) and Jackson v. Metropolitan Edison Co.,

419 U.S. 345 (1974) was error. In joint state federal activi-

ties the nexus of state connections are self-evident. For

\ 12

example, when evaluating a state employee’s acts, the em-

ployee’s relationship to the Governor is always evident.

The source of his pay is evident. But, these indicia may be

irrelevant nonetheless. The Third Circuit’s emphasis on

the Governor’s control of the state militia is such an ir-

relevant detail. In a parallel line of reasoning this Court

in Lynch v. Donnelly, 465 U.S. 668, 680 (1985) cautioned

that concentration on the religious purpose in a first amend-

ment evaluation always results in a distorted analysis.

Likewise concentrating on state eiements in joint federal

state activities will always lead to a conclusion that the

color of state law requirement is satisfied. But both Lugar,

supra, and Polk, supra, require an evaluation of the alleged

act within the context of the program, the source of the

regulatory requirements and the program goals,

Essentially then, the Third Circuit focused solely upon

the status of the Adjutant General as a state official. The

Court also confused the interactions of military duties with

technician functions in finding color of state law. This

analysis should be rejected since the status alone should

not control and the technician program is separable from

the military function."

Confusion has plagued the National Guard through

its evolution into a strong national defense organization

under the ‘‘Tota! Force Plan.’’ See Army Magazine, Vol.

24, No. 8, Aug. 1974. The status of technicians and coverage

*Indeed the military function in this case represents a federal,

not state, mission. The jet fighters being maintained by re-

spondents represent no legitimate state function but exist solely

for national defense functions. Moreover plaintiffs here were

discharged from technician positions without any actions relat-

ing to the military position with the National Guard.

under the Federal Tort Claims Act engendered numerous

conflicting opinions prior to the 1968 amendment which

clarified that technicians were federal employees. See e.g.,

cases cited in Maryland v. United States, 381 U.S. 41, 44

(1965) vacated 382 U.S. 159 (1965) affirming 329 F.2d 722

(8rd Cir. 1964). In 1968, 32 U.S.C. § 709 was amended to

end the legal conflict of the hybrid status of the technician.

The amendment unequivocally changed state caretakers into

technicians with federal employment status. Compare 32

U.S.C. § 709 with prior law at App. I. The House report

stated the amendment’s purpose:

to clarify the technician’s legal status which in certain

areas has been the subject of conflicting court deci-

sions....

Despite this legislative clarification, the Third Circuit

has ignored the federal character of the technician program

and focused upon the Adjutant General’s state reiation-

ships to find color of state law in the discharge of federal

employees. Indeed, the Circuit Court found nothing in the

amendment to 32 U.S.C. 4 709 that would alter its decision

in Lasher v. Shafer, 460 F.2d 343 (3rd Cir. 1972). Although

Congress left administration of the program at the state

level as discussed in the amendment’s history, this alone

does not equal color of law. The act performed in this

case, the firing of two federal employees, stems solely from

federal law and regulations. This entire area of law has

been preempted by Congress, and the State cannot legis-

late in this area nor legitimately interfere in the adminis-

tration. Thus these acts are performed only within the

scope of the agency permitted by federal statute 32 U.S.C.

§ 709(e). Review by this Court is required to restore uni-

formity in the determination of whether acts are done un-

der the color of state law when a state official and federal

employees act solely under federal law in the administra-

tion of a federal program.

(b) The Third Circuit’s Decision Creates A Spe-

cial Category Of Federal Employees Who

May Sue Their Supervisors For Personnel

—" Conflicting With This Court’s Deci-

on.

In Bush v. Lucas, 462 U.S. 367 (1983) this Court de-

termined that the comprehensive federally prescribed reme-

dies for employee discipline were a special factor coun-

seling hesitation and weighing against constitutional tort

suits brought pursuant to Bivens, supra. By permitting a

42 U.S.C. § 1983 suit, the Third Circuit Court has carved out

a group of some 53,000 federal employees whe may main-

tain both remedial actions under 5 U.S.C. § 701 and a law-

suit for the violation of constitutional rights (App. 21

n.17).

Although a 42 U.S.C. § 1983 suit differs in origin from

the judicially created remedy in Bivens, the dissent in John-

som found that precedent exists for precluding a $1983

remedy when a comprehensive remedial scheme exists.

Middlesex County Sewage Authority v. National Sea Clam-

mers Association, 453 U.S. 1 (1981); Smith v. Robinson,

104 §.Ct. 3457 (1984). When comprehensive remedies ex-

ist, this Court has determined that Congress intended to

foreclose a 42 U.S.C. § 1983 remedy.

While the Third Circuit rejected this argument because

32 U.S.C. § 709 did not create a ‘‘comprehensive’’ scheme,

this holding was incorrect. 32 U.S.C. §709 creates the

federal employment status which then entitles technicians

to the remedies of the Civil Service Reform Act. The only.

difference between technicians and other federal employees

is the forum for review. Technicians seek a review of agen-

ey record under the A.P.A., 5 U.S.C. 4701." Chaudoin,

supra, 494 F.2d at 323, N.5. But, like all other federal em-

ployees, technicians may file unfair labor practices and

grievances 5 U.S.C. 47101 et seq. Technicians may also

contract with the Adjutant General on certain details gov-

erning working hours, e#c. Congress thus specially crafted

a system to remedy the employment grievances of techni-

cians subject to the peculiar characteristics of the National

Guard. While 32 U.S.C. 4 709 is not a lengthy statute, other

statutes defining and supplementing the technician employ-

ment rights do indeed create a comprehensive system which

should preclude § 1983 suits.

This Court should therefore grant the petition for a

writ of certiorari to resolve the conflict created by the

Third Circuit’s holding that a discharge of a technician

from his federal employment is done under color of state

law for purposes of 42 U.S.C. § 1983 while substantial fed-

eral remedies exist in other statutes to provide parallel re-

lief.

*Respondents have in fact prevailed on their suit. Johnson v.

Orr, 776 F.2d 75 (3rd Cir. 1985).

POINT II

THIS COURT SHOULD GRANT THIS PETI-

TION FOR A WRIT OF CERTIORARI BE-

CAUSE THE DECISION OF THE THIRD CIR-

CUIT ENDANGERS NATIONAL SECURITY.

As this Court has recognized, the military fosters a

peculiar and special relationship of the soldier to his su-

periors, which may be detrimentally affected by the main-

tenance of such suits challenging disciplinary actions.

United States v. Mumiz, 374 U.S. 150 (1963) quoting United

States v. Brown, 348 U.S. 110 (1954). Accord, Feres v.

United States, 340 U.S. 135 (1950). See also Mollnow v.

Carlton, 716 F.2d 627 (9th Cir. 1983) holding a 42 U.S.C.

§ 1985 remedy unavailable to military personnel. In this

ease technicians hold their civilian federal employment in

the military context and this Court should weigh whether

the military concern for discipline should affect the color

of law analysis since the acts complained of stem from

military decision makiug.

The holding of the Third Circuit in this case chills

decision making in the administration of the technician

program since decision makers face the threat of damage

awards in making such decisions.* This chill of course,

spreads to military decision making. Indeed, in relying

upon Rowe, this circuit sub silentio adopts the position that

acts involving both military personnel and technicians may

engender a § 1983 suit, for the Rowe case involved more

than strictly civilian personnel decisions.

*Technicians are not eligible for indemnification for such dam-

ages by either the state or federal government. The Adjutant

General in New Jersey may be indemnified under N.J.S.A. 59:1-1

et seq. except for punitive damages.

If purely personnel actions, taken in a federal program

which supports the national security, are considered acts

done under the color of state law, the maintenance of

42 U.S.C. § 1983 suits will affect military discipline and

control. The Facts of the instant case demonstrate this

problem. In this case the constitutional rights allegedly

violated was the First Amendment right to freedom of

speech and association. The trial court, on renewed mo-

tions for summary judgment ruled that the balancing test

enunciated in Pickering v. Bd. of Education, 391 U.S. 563

(1968) would govern (App. D). Therefore, petitioners

presumably must establish that the technicians’ actions

seriously threatened to disrupt an important military mis-

sion (App. 77a). Defendants have represented to the court

that this balancing involves a military mission classified

top secret by the United States Air Force (App. 79a).

This case therefore differs significantly from the pure-

ly state situation when the militia acts upon an order of

the governor solely for a state purpose. It is a case that

demands examination of the interests being served by the

actor. Here, in a unique federal state activity, the interests

being served and the act allegedly performed stem from

federal purposes defined in federal statute.

This Court should not ignore the potential impact

§ 1983 svits will have upon federal military mission per-

formance, but should grant certiorari to settle an issue

affecting national security.

CONCLUSION

For the reasons set forth herein, this Court should

issue a writ of certiorari to the Third Cireuit Court of

Appeals.

James J. CIANOIA

Respectfully submitted,

W. Cary Epwanps

Attorney General of New Jersey

Attorney for Petitioner

LTC Billy McDaniel

Richard J. Hughes Justice Complex

CN 112

Trenton, New Jersey 08625

(609) 292-5573

Assistant Attorney General

Of Counsel

DorotHy Don NELLY

Deputy Attorney General

On the Brief

Counsel of Record

a ee =

”

APPENDIX A

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

NOS. 84-5859 and 84-5860

ROY A. JOHNSON and JOHN J. SHELLER,

Appellees

VERNE ORR, Secretary of the Air Force, FRANCIS

GERARD, Major General, WILFRED C. MENARD, JR.,

Major General, COLONEL JOHN MURPHY,

BRIGADIER GENERAL CHARLES YOUNG, Air

Commander LT. COL. BILLY MC DANIEL

Air Commander Lt. Col. Billy

McDaniel

Appellant in No. 84-5859

Wilfred C. Menard, Jr., Major

General, Colonel John Murphy,

Brigadier General Charles Young,

Appellants in No. 84-5860

On Appeal from the United States District

Court for the District of New Jersey

(D.C. Crim. No. 84-8121)

Argued September 10, 1985

Before: SEITZ, BECKER and ROSENN,

Circuit Judges

(Filed January 13, 1986)

GAY SNYDER

MARTIN R. COHEN (Argued)

American Federation of

Government Employees

133 Church Street

New Brunswick, NJ 08901

MARK ROTH

General Counsel

American Federation of

Government Employees

1325 Massachusetts Ave. NW

Washington, DC 20005

Attorneys for Appellees

Johnson and Sheller

IRWIN I. KIMMELMAN

Attorney General of the

State of New Jersey

EUGENE SULLIVAN

DOROTHY DONNELLY (Argued)

Deputy Attorneys General

Richard J. Hughes Justice Complex

CN 112

Trenton, NJ 08625

Attorneys for Appellants

in 84-5859

W. HUNT DUMONT

United States Attorney

BETTE E. VHRMACHER

(Argued)

Assistant United States Attorney

402 East State Street

Trenton, NJ 08608

Attorneys for Appellants

in 84-5860

C. ROGER LUNDER

Major, Staff Judge Advocate

State of New York

Division of Military and Navy

Affairs

Public Security Bldg. #22

State Campus

Albany, NY 12226-5000

Attorney for Amicus Curiae

Adjutants General Association

of the United States

JOHN K. VAN DE KAMP

Attorney General of the State of

California

N. EUGENE HILL

Assistant Attorney General

ROBERT E. MURPHY

Deputy Attorney General

6000 State Building

350 McAilister Street

San Francisco, Ca. 94102

Atorneys for Amicus Curiae

State of California and the

Adjutant General of the

California National Guard

OPINION OF THE COURT

BECKER, Circuit Judge.

The issue before us, on a certified question from the

district court, 28 U.S.C. $1292(b) (1982), is whether Air

National Guard (“ANG”) technician supervisory person-

nel and the New Jersey Adjutant General act under color

of state law for the purposes of 42 U.S.C. $1983 (1982)

when participating in personnel decisions resulting in the

dismissal of ANG technicians. The district court held

that thy do, and we affirm.

Appellees Roy A. Johnson and John J. Sheller were

ANG technicians and stewards in the technicians’ union,

Local 377 of the American Federation of Government Em-

ployees. As a result of a series of events arising cut of

a dispute over a proposed change in the technicians’ work

hours, appellees were discharged. The discharges were

upheld in administrative hearings before an ANG hearing

examiner, whose findings were adopted by the New Jersey

Adjutant General.

On August 6, 1982 appellees brought this action in the

district court for the District of New Jersey against their

supervisors John Murphy and Charles Young; Secretary of

the Air Foree Verne Orr; Major General Willard Menard,

who was New Jersey Adjutant at the time of appellees

discharge; and Major General Francis Gerard, who suc-

ceeded Menard as New Jersey Adjutant General. Ap-

pellees’ complaint alleged improper discharge in violation

of their first and fifth amendment rights (Bivens claims)';

improper discharge in violation of the Administrative Pro-

cedure Act (APA), 5 U.S.C. § 701 et seq (1982); and vio-

lation of “2 U.S.C. § 1983 on account of due process and

various firct and fifth amendment infractions. An amend-

ed complaint was filed in January, 1984, adding as a de-

fendant Billy McDaniel, a technician personnel officer

who had advised the other defendants concerning the dis-

charge of plaintiffs.”

1. See Bivens v. Six Unknown Named Agents of the Federal

Bureau of Narcotics, 403 U.S. 388 (19771).

2. All of the defendants except Orr and Gerard were charged

with violating 42 U.S.C. § 1983.

Following a hearing in March, 1983, the district court

transferred all damage claims to the United States Claims

Court pursuant to 28 U.S.C. $1406(c) (1982) and dis-

missed the Bivens claims. Both sides moved for summary

judgment with respect to the remaining claims. In July,

1984 the district court granted summary judgment for

plaintiffs on their APA claims and summary judgment for

defendants with respect to the due process claim. The

district court denied summary judgment with respect to the

other claims brought under section 1983, specifically re-

jecting defendants’ argument that a section 1983 action

could not be brought against National Guard supervisory

personnel. On a motion for partial reconsideration, the

district court agreed to certify for interlocutory appeal the

question whether persons such as Murphy, Young, Mc-

Daniel, and Menard, who discharge technicians employed

under 32 U.S.C. § 709, act under the color of state law for

section 1983 purposes. This court accepted the certifica-

tion and defendants appealed.’

The question whether appellants acted under color

of state law is difficult because of the National Guard’s

3. In Johnson v. Orr, 776 F.2d 75 (3d Cir. 1985), this panei

heard an appeal on all aspects of the case except the one

now before us. We upheld the district court’s grant of sum-

mary judgment for appellees under the APA and for appel-

lants on the claim of violation of due process. As a result

of that disposition, the other claims brought under section

1983 are al! that remains in the district court. Those claims

have been stayed pending our decision on this interlocu-

tory appeal. In addition, the United States Court of Claims

retains jurisdiction over the damage claims.

unusual “hybrid” status as an agency with both federal

and state characteristics. In New Jersey Air Nat'l Guard

v. Fed. Labor Rel. Auth., 677 F.2d 276 (3d Cir. 1982), we

described this status as foliows:

The National Guard occupies a unique position in the

federal structure ... This role does not fit neatly

within the scope of either state or national concerns;

historically the guard has been, and today remains,

something of a hybrid. Within each state the Nationai

Guard is a state agency, under state authority and

control. At the same time, the activity, makeup, and

function of the Guard is provided for, to a large ex-

tent, by federal law. Id. at 278-279.

Indeed, the Guard’s function, as well as its structure, is

hybrid. The Guard “serves the state in time of civil emer-

gencies within the state as well as being available for

federal service during national emergencies.” Engblom v.

Carey, 522 F.Supp 57, 65 (S.D. N.Y. 1981).

Appellants focus on the federal statutory scheme that

governs ANG, 32 U.S.C. $709 (1983). They point out

first that the 1968 National Guard Technicians Act makes

them (with the exception of Adjutant General Menard, a

state cabinet officer appointed by the governor) federal

employees. Appellants further emphasize that their

4. The National Guard Technicians Act of 1968 provides in

part:

A technician employed under subsection (a) is an em-

ployee cf the Department of the Army or the Depart-

ment of the Air Force, as the case may be, and an em-

ployee of the United States.

32 U.S.C. § 709(d).

Thus, the 1968 Act made Johnson and Orr, as well as ap-

pellants, federal employees. Appellees’ employment status

(Continued on following page)

Lad

authority to discharge appellees derives directly and ex-

clusively from federal statute and that such discharges

are effected pursuant to regulations prescribed by the

Secretary of the Air Force, 32 U.S.C. 709(e).5 They con-

tend that New Jersey Air National Guard Regulations

40-13 (NJANG) does not constitute state law for section

1983 purposes because it simply restates the relevant fed-

eral regulation: NJANG’s stated purpose is to “provide

for the administration of the NJ Army and Air National

Guard Technician Program and implement the provisions

of the National Guard Bureau Technician Personnel Man-

wal, Technician Personnel Pamphlets and applicable regu-

lations of the U.S. Ciwil Service Commission’s Federal

Personnel manual.’’ (emphasis added) Appellants argue

that they could not possibly have acted under the color of

state law, for there is no state law directing or authoriz-

ing their actions.

Appellants also argue that the Supreme Court’s hold-

ing in Bush v. Lucas, 462 U.S. 367 (1983), that congres-

sional enactment of a comprehensive civil service scheme

precluded an implied Bivens-type cause of action, should

be extended to section 1983 actions. Because ANG oper-

(Continued from previous page)

is irrelevant, however, because ‘that status does not inform

us whether those injuring him [them] acted under color of

state or federal law.” Lasher v. Shafer, 460 F.2d 343, 347

(3d Cir. 1972).

5. “(e) Notwithstanding any other provision of law and

under regulations meso Be by the Secretary concerned—

(3) a technician may, at any time, be separated from

his technician employment for cause by the adjutant gen-

eral of the jurisdiction concerned.”

ates pursuant to a comprehensive legislative scheme, ap-

pellants argue, a section 1983 remedy is inappropriate.®

Appellees rejoin that the state is so heavily involved in

the National Guard program that the actions complained of

were under color of state law. Their argument focuses on

the Guard’s actual administrative authority at the state

level. The governor is the commander-in-chief of each

Guard unit and the adjutant general, a state officer, is the

chief acting executive. Appellees’ discharge was effected

by Adjutant General Menard; the other appellants worked

under Menard. Appellees also observe that while the other

appellants are federal employees, they had to maintain

their rank in the state guard in order to maintain their em-

ployment as federal technicians and thus be in the position

to discharge appellees.’

6. In their amicus briefs, the Adjutant Generals Association of

the United States, and the State of California and Adjutant

General of the California National Guard argue that because

of the Guard’s critical role in the United States’ national de-

fense, its disciplinary proceedings should be immune from

review in the courts. See Chappell v. Wallace, 462 U.S. 296

(1983). Feres v. United States, 340 U.S. 135 (1950). Wedo

not reach the issue of military immunity, which appellants

did not brief, because it is not part of the question certified

by the district court. Cf. Ungar v. Dunkin, 531 F.2d 1211,

1215-16 nn. 4&5. (1976).

7. In Johnson v. Orr, 776 F.2d 75 (3d Cir. 1985), the require-

ment that technicians retain their state membership de-

feated Johnson’s claim for reinstatement. Despite our hold-

ing that Johnson was improperly discharged, we found him

ineligible for reinstatement because he had left the New

Jersey Guard.

ITT.

The ‘‘under color of state law’’ requirement is identical

to the ‘‘state action’’ requirement of the fourteenth amend-

ment. Lugar v. Edmonson Oil Co. Inc., 457 U.S. 922

(1982). Krynicky v. University of Pittsburgh, 742 F.2d 94

(3d Cir. 1984) Thus, a showing that actions were ‘‘under

color of state law,’’ like a showing of the presence of ‘‘state

action,’’ does not require that the challenged action be pur-

suant to a state statute. Rather, the question is ‘‘ whether

there is a sufficinetly close nexus between the State and

the challenged action.’’ Jackson v. Metropolitan Edison

Co., 419 U.S. 345, 351 (1974), or whether the state ‘‘has so

far insinuated itself into a position of interdependence’”’

that there is a ‘‘symbiotic relationship’’ between the actor

and the state such that the challenged action can ‘‘fairly be

attributed to the state.’’ Krynicky, supra, at 99.

There is no set formula for determining whether the

employees of an agency with both state and federal charac-

teristics act under color of state law. All of the circum-

stances must be examined to consider whether the actions

complained of were sufficiently linked to the state. See

Lake Country Estates Inc. v. Tahoe Regional Planning

Agency, 440 U.S. 391 (1979). A crucial inquiry is ‘‘whether

day-to-day operations are supervised by the Federal [or

state] government.’’ Detore v. Local 245 Jersey City Pub-

lic Employers Union, 615 F.2d 980, 983 (3d Cir. 1980) (quot-

ing United States v. Orleams, 425 U.S. 807, 815 (1976) ).

While the National Guard’s hybrid status complicates

this inquiry, we have strong guidance from our opinion in

Lasher v. Shafer, 460 F.2d 343 (3d Cir. 1972), which in-

volved facts sirikingly similar to the facts of this case. In

10a

Lasher, National Guard technicians alleged that they had

been demoted and abused by their supervisors because of

their active union involvement. We concluded that de-

fendants had acted under color of state law. We noted that

the Pennsylvania National Guard is part of the state mili-

tia,® that the Pennsylvania Governor is commander-in-chief

of the Guard, and that defendants had not been called into

service of the United States at the time of the actions com-

plained of. Id. at 346. Moreover, we explicitly rejected the

argument, stressed by appellants in the instant case, that

because the source of the National Guard’s authority is

federal, even actions administered at the state level were

not under the color of state law. Id. at 348.

Lasher does not control this case because it concerned

events that occurred prior to the National Guard Techni-

cians Act of 1968. Although the 1968 Act had been passed

by the time of the opinion, we explicitly refused to address

whether the conclusion that National Guard personnel acted

under the color of state laws was altered by the 1968 Act.

Therefore, we must make that determination in this case.

The 1968 Act, inter alia, made National Guard techni-

cians, who had been state ‘‘caretakers’’ under the previous

statute, federal employees. The fact that the Act conferred

federal employee status on appellees is irrelevant to the

issue of whether those who discharged them acted under

eolor of state law. See supra note 4. The 1968 Act also

made appellants, with the exception of Adjutant General

8. See also Engblom v. Carey, 522 F.Supp. 57, 65 (S.D. N.Y.

1981). “[{T]he Guard is the modern day successor to the

Militia reserved to the states by Art. 1, § 8 cls. 15, 16 of the

Constitution. . .”

lla

Menard, federal employees; this too is not dispositive be-

cause the critical inquiry remains whether their actions

were made possible by authority derived from the state.

See Rowe v. State of Tennessee, 609 F.2d 259, 263 (6th Cir.

1977) (explicitly rejecting the claim that ‘‘since as N ational

Guard technicians they are federal employees, their dis-

ciplinary or retaliatory actions against Rowe were likewise

under color of federal law.’’)

The crucial question is whether the 1968 Act was either

intended to render, or had the effect of rendering the Na-

tional Guard more federal in character to the point where

technician supervisory personnel and the adjutant general

can no longer be considered as acting under color of state

law when participating in personnel decisions resulting in

the discharge of ANG techicians. This question has been

considered by the Fifth and Sixth Circuits, both of which

have held that the 1968 Act was not designed to federalize

the National Guard, and that guard officials may be sued

under section 1983. Rowe v. State of Tennessee, 609 F.2d

259 (6th Cir. 1979) ; NeSmith v. Fulton, 615 F.2d 196 (5th

1979). See also Schultz v. Wellman, 717 F.2d 301 (6th Cir.

1983) (following Rowe) ;? Bollen v. National Guard Bureau,

9. Appellants claim that the Fifth and Sixth Circuit cases are

distinguishable from the instant case. They attempt to dis-

tinguish NeSmith and Shultz on the grounds that plaintiffs

in those cases were discharged from their military positions

in the state unit as well as from their positions as federal

employees. However, as we noted in Lasher, the employee

status of plaintiffs has no bearing on whether those injuring

them acted under color of state law. 460 F.2d at 347 ‘3d

Cir. 1972). See supra note 4.

In Rowe, plainiiff, like appellees in the instant case, was

dismissed only from his position as a technician. Appellants

(Continued on following page)

ee ee ee a ae

o o ’

12a

449 F’. Supp. 343, 349 (W.D. Pa. 1978) (following Lasher

without discussing the 1968 Act); Syrek v. Pennsylvania

Air National Guard, 371 F. Supp. 1349 (W.D. Pa. 1974)

(following Lasher after explicitly finding that the 1968 Act

did not federalize the Guard), rev’d on other grounds, 537

F.2d 66 (3d Cir. 1976); contra Vargas v. Chardon, 405 F.

Supp. 1348, 1351 (D.P.R. 1975) (holding adjutant general

not liable under section 1983 without discussing the 1968

Act).

The legislative history of the 1968 Act explicitly reveals

the several purposes of that Act; federalizing the Guard’s

administration was not among them. The House Report

unequivocally stated Congress’ goals in passing the Act:

In authorizing federal employee status for the National

Guard technicians, the purpose of this legislation is—

(Continued from previous page)

argue that Rowe is distinguishable because the plaintiff in

that case alleged a campaign of harrassment by both his

military and his civilian supervisors. The Rowe court, how-

ever, quite clearly held that civilian supervisors could be

liable under section 1983. The court first concluded that

plaintiff's military and joint yen pope supervisors, in-

cluding the adjutant general, could act under color of state

law. It proceeded to hold that civilian technicians also

acted under color of state law if they acted pursuant to their

supervisory authority over plaintiff. The court remanded the

case, in part for a determination whether the challenged ac-

tions were made possible by defendants’ official power or

were mere private acts of harrassment. In the instant case,

it is unquestionable that appeilants’ actions were pursuant

to their official authority.

The dissent downplays the significance of Rowe by asserting

that “the Rowe court was strongly influenced by Lasher

. . . Which dealt with the National Guard before the 1968

amendment.” Dis. Op. at 10. In fact, the Rowe court ex-

plicitly considered (and rejected) the possibility that that

1968 Act undercut the rationale in Lasher. 609 F.2d 264.

13a

(a) [t]o provide a retirement and fringe benefit pro-

gram which will be both uniform and adequate;

(b) [t]o recognize the military requirements and the

State characteristics of the National Guard by provid-

ing for certain statutory administrative authority at

the state level with respect to the technician program.

(emphasis added)

certain areas has been the subject of conflicting court

decisions, especially on the matter of whether techni-

cians are covered under the Federal Tort Claims Act

regarding third party actions against the U.S. Govern-

ment.

H.R. Rep. No. 1823, 90th Cong., 2d Sess. (1968) reprinted

in 1968 U.S. Code Cong. & Ad. News 3318, 3319.

A more express statement of congressional objectives

could not be asked for, and none of these objectives sug-

gests that Congress intended to reduce the state involve-

ment in the Guard. Two of the goals—providing techni-

cians with a uniform and adequate fringe benefit program

and clarifying the status of Guard technicians for the pur-

pose of the Federal Tort Claims Act—are irrelevant to

whether technician supe*visory personnel and the adjutant

general act under color of state law. The third goal, to

‘‘recognize the State characteristics of the National

Guard,’’ casts the most light on the question of state action.

In explaining the provisions about adjutant generals, for

example, the House Report said:

This requirement is intended to achieve two purposes:

a) recognize the State character of the Guard and b)

meet the requirement of giving the adjutants general

l4a

(who are State officers) the statutory function of em-

ploying Federal Employees.”

ld. at 3330. Under the 1968 Act, each Guard unit remained

under the administration of the adjutant general. Signifi-

cantly, he remained a state official under the Act. In the

case at bar, the other defendants were subordinates of the

adjutant general; his authority was needed to consummate

their efforts to discharge appellees.

In short, we agree with the Fifth and Sixth Circuits

that the 1968 Act left the Guard’s administrative authority

largely at the state level. The Guard has historically been

a matter of intense interest on the state level and the state

Guards have zealously fought to prevent federal encroach-

ment. See generally M. Derthick, The National Guard In

Politics (1965). Congress was apparently sensitive to this

situation and elected to preserve the state administrative

authority over the guard. We are cognizant of the Guard’s

importance in the national military structure, see supra

note 6. It is for Congress, however, not the courts, to estab-

lish the nature of the Guard. In 1968 Congress addressed

the nature of the Guard and elected not to make the Guard’s

administration more federal in character. Accordingly, we

see nothing that permits, much less compels us to depart

from our holding in Lasher. See Syrek v. Pennsylvania Air

National Guard, 371 F. Supp. 1349, 1351 (W.D. Pa. 1974)

(‘‘ After a review of the amended statute and its legislative

history we do not think the amendment alters either the

10. It is worth noting that the original House version of the Bill

designated the State Adjutant General “or other appropri-

ate persons” to administer the technicians program. The

Senate version, deleted “or other appropriate persons” to

ensure that the program would remain under state control.

114 Cong. Rec. H24709 (daily ed. August 1, 1968).

15a

logic or the holding of Lasher . . ”’), rev’d om other

grounds, 537 F.2d 66 (3d Cir. 1976).

The dissent acknowledges the state’s heavy involve-

ment in the Guard program. It argues, however, that foc-

using on the particular challenged action—the discharge of

appellees—compels the conclusion that appellants acted ex-

clusively under color of federal law. This argument rests

on the fact that, in administering the technician program

generally and in his authority to dismiss technicians specif-

ically, the adjutant general acts as an agent of the Secretary

of the Air Force, 32 U.S.C. § 709 (c),(e) (3) (1982).

We cannot accept this argument; while the adjutant

general acted as a federal agent in dismissing appellants,

see Chaudoim v. Atkinson, 494 F.2d 1323, 1329 (3d Cir.

1974), (adjutant general is federal agent for purposes of

jurisdiction under 28 U.S.C. § 1361), it does not follow that

his actions were done exclusively under color of federal

law." The dissent recognizes that ‘‘Congress in the main

permitted administrative control of the Guard to remain at

the state level where ‘‘personnel matters for civilian tech-

nicians’’ are concerned. Dis. Op. at 9. Control over techni-

cian personne] matters, however, was left at the state level

by Congress The dissent does not dispute that the adjutant

general, a state officer, retains the discretion to determine

when technicians are to be discharged as well as the authcr.

11. In Nesmith v. Fulton, 615 F.2d 196 (5th Cir. 1980), the Fifth

Circuit adopted our conclusion in Chaudion that the ad-

jutant , sop was a federal agent for jurisdictional pur-

poses, but nevertheless held that he acted under color of

state law in ey technicians. Indeed, the Nesmith

court stated that nts had acted under color of fed-

eral as well as state law. /d. at 200-01 n.7.

l6a

ity to discharge them. Nor does it deny that, in the instant

case, the adjutant general made and implemented the final

decision to discharge appellees. The adjutant general’s ac-

tions involved precisely the kind of administrative control

over Guard personnel that Congress purposely left at the

state level, see supra 12-14, not an ‘intentional deviation

from the federal path,’’ Ellis v. Blum, 643 F.2d 68, 83 n. 17

(2d Cir. 1981).

The adjutant general’s authority to dismiss technicians

must be exercised pursuant to federal regulations. To in-

fer from this fact that state action is absent, however, is far

too great a leap. It rests on the erroneous assumption that

the ultimate statutory source of authority is the sole in-

quiry for determining whether actions are under color of

state law. See supra note 12. In fact, all of the circum-

stances surrounding the challenged action must be taken

into account. See Lake Country Estates Inc. v. Tahoe

Regional Planning Agency, 440 U.S. 391 (1979); Askew v.

Bloemker, 548 F.2d 673, 677 (7th Cir. 1976).% Here, when

12. The dissent erroneously asserts that Askew supports its posi-

tion. The court in Askew found that municipal police offi-

cers involved in a federal pgs norsk had not acted under

color of state law. It did so, however, only because the

“totality of the circumstances” surrounding the challenged

operation showed that it was controlled by the federal au-

thorities. 548 F.2d at 677. Here, the totality of the circum-

stances suggest that the real authority to discharge techni-

cians is at the state level. Indeed, it is probable that the

provisions making the adjutant general’s authority over the

technician program pursuant to federal regulations were

primarily a means of clarifying the permissibility of a state

official ——— federal employees. It is certainly not

the case that the adjutant general acts as an “agent” to the

Secretary of the Air Force in the sense of carrying out his

commands. On the contrary, as noted, the actual decision

to discharge technicians, and the implementation of that

decision, is made by the adjutant general.

17a

all of the circumstances are considered, the state action re-

quirement is clearly met. See Rowe v. State of Tennessee,

609 F.2d at 264 (‘‘It strains belief to think that the deci-

sion to discharge an individual technician was not within

the statutory administrative authority at the state level.’’).

; IV.

The dissent argues that the 1968 Technicians Act pre-

empts relief under section 1983. As the dissent notes, the

Supreme Court has found certain remedies to preclude sec-

tion 1983 actions—but only when it found that Congress

clearly intended for such remedies to be exclusive. See, e.g.,

Middlesex City Sewerage Authority v. National Sea Clam-

mers, 453 U.S. 1 (1981) (Federal Water Poliution Control

Act intended as exclusive remedy); Smith v. Robinson, —

U.S. —, 104 U.S. 2457 (1984) (Education of the Handi-

capped Act intended as exclusive remedy); Great American

Federal 8 & L Ass’n v. Novotny, 442 U.S. 366 (1979) (Title

VII intended as exclusive remedy). We cannot infer from

the 1968 Act that Congress wished to foreclose a section

1983 suit by Guard technicians.

The dissent finds evidence of Congress’ intent to make

the 1968 Act the exclusive remedy for Guard techni-

cians in the prefatory language of section 709(e) that ‘‘ Not-

withstanding any other provision of law... ’’ the terms of

the Act are to apply. This language, however, establishes

only that the terms section 709(e) may not be preempted

13. Indeed, in Novotny the Court clarified that its holding did

not overturn the many cases where “we have held that sub-

stantive rights conferred in the 19th Century were not with-

drawn, sub silentio, by the subsequent passage of the mod-

ern statutes.” 442 U.S. at 377.

18a

by other statutes, not that the Act provides the exclusive

remedy for Guard technicians. That is, Congress clearly in-

tended that in a conflict between section 709(e) and another

statute, the terms of section 709(e) must be followed. It

may be, however, that statutes which do not conflict with

the 1968 Act may supplement its terms. For this reason,

we disagree with the dissent’s view that our holding in New

Jersey Air National Guard v. Federal Labor Relations

Authority, 677 F.2d 276 (3d Cir. 1982) suggests that the

1968 Act provides the exclusive remedy for Guard techni-

cians.

In that case we were faced with a direct conflict be-

tween the Federal Labor Management Act (FLMA) and the

Technicians Act, i.e., ‘‘whether the Technicians Act con-

tinues to prohibit appeals from certain decisions of the

state adjutant general despite the provisions of the Labor-

Management Act, which would ordinarily require the estab-

lishment of procedures for such appeals.’’ Jd. at 281.

Faced with this conflict we held that ‘‘section 709(e) must

be read to override any conflicting provisions of law in

existence at the time that the Technicians Act was enacted.’’

Id. at 283. (emphasis added). The case at bar does

not present such a conflict between two statutes. Allowing

appellees a section 1983 remedy does not conflict with any

terms of the 1968 Act; The Guard’s internal administra-

14. Section 709(e)(5) says “a right of appeal . . . shall not extend

beyond the adjutant general of the jurisdiction concerned.”

That provision precludes further administrative appeals, not

court review of the Guard’s actions. New Jersey Air Na-

tional Guard v. Federal Labor Relations Authority, 677 F.2d

276, 280 n. 3 (3d Cir. 1982).

19a

tive processes, as established by the 1968 act, remain in-

tact ‘“‘notwithstanding’’ the bringing of a section 1983 ac-

tion.

We must also reject the dissent’s argument that the

**eomprehensive’’ nature of the 1968 Act suggests that

Congress intended it as an exclusive remedial scheme. The

statute that preceded the 1968 Act was anything but a com-

prehensive remedial scheme: it was limited to technical

aspects of the technician program such as the sources of

funding of the Guard. The 1968 Act amended the earlier

statute to make Guard technicians federal employees, pri-

marily in order to clarify their status with respect to retire-

ment benefits and the Federal Tort Claims Act. See supra

12-14. Congress also took the opportunity to establish cer-

tain internal administrative procedures of the Guard. 32

U.S.C. § 709(e). The context in which the 1968 Act was

passed suggests that the provisions establishing a ‘‘re-

medial scheme’’ were designed merely to clarify the in-

ternal procedures and authority of the Guard in the wake

of the technicians’ new status as federal employees. There

is no evidence in the legislative history that Congress was

crafting a comprehensive remedial scheme intended to pre-

clude other remedies available to technicians.’ Indeed,

15. The dissent makes much of the fact that section 709(f)

makes certain provisions of other civil service legislation

inapplicable to Guard technicians. The dissent attaches

particular significance to the fact that section 709(f) renders

Section 7512 of Title 5 i licable to Guard technicians.

Since Section 7512 establishes the procedures involved in

adverse actions against federal employees, the dissent con-

cludes that Congress intended the procedures described in

section 709 as exclusive channel for technician appeals.

(Continued on following page)

20a

congressional discussion of the statute is almost entirely

bereft of reference to either section 709(e) specifically or

the statute’s role in creating a ‘‘remedial scheme’’ gen-

erally.

Thus the 1968 Act is on a very different footing from

the statutes at issue in Sea Clammers, Novotny, and Rob-

inson; the Federal Water Pollution Control Act, Title VII

of the Civil Rights Act of 1964, and the Education cf the

Handicapped Act, respectively. In each of those instances,

the legislation represented Congress’ effort to deal with a

pressing national problem in a comprehensive manner.

The statutes were voluminous and detailed. They had par-

ticular provisions explaining the remedies available to

classes of plaintiffs, and detailing the circumstances under

which aggrieved parties could pursue their rights in state

or federal courts. By contrast, the 1968 Technicians Act

did not address a pressing national problem, nor did it

involve comprehensive reform. Rather, it clarified an

internal administrative procedure by which discharged

(Continued from previous page)

On the contrary, section 709(f) buttresses our view that the

provisions of section 709 that establish a remedial scheme

represent Congress’ effort to clarify the administrative im-

plications of making technicians federal employees. As

guard technicians are anomalous federal employees in that

their employment is administered at the state level. Con-

gress apparently thought that the procedural avenues gen-

erally followed in cases involving federal employees were

inappropriate. This decision concerned the internal admin-

istrative procedure of the Guard: it casts no light on what

judicial remedies may be availabie to Guard technicians.

Moreover, little significance can be read into Congress

exempting technicians from the comprehensive remedies

of the Civil Service Reform Act which was enacted 10 years

after Congress exempted technicians from the coverage of

section 7512.

21a

employees could pursue their grievances. Given section

1983’s critical historical role in vindicating constitational

rights, we should not lightly infer that such a statute as

the Technicians Act was intended to displace it.’

The dissent suggests that courts should “refrain from

interfering” with congressional policy. Dis. Op. at 18. We

agree, but we do not agree that our unwillingness to pre-

vent appellees from bringing a section 1983 action consti-

tutes interference with Congress. On the contrary, our

holding adheres to the policy of judicial deference set

forth by the Supreme Court in the Sea Clammers line of

cases, 1.¢e., ruling out certain remedies only when it can be

clearly inferred that Congress intended their preemption.

We simply cannot draw that inference from legislation

that amended a technical statute primarily to clarify the

employment status of Guard technicians. The fact that

the Act included a provision governing the internal ad-

ministrative procedures to be followed when technicians

are discharged does not justify the conclusion that Con-

16. It is true that the Guard’s actions are reviewable agency ac-

tions under the APA. The dissent suggests that appellees’

remedies under the APA are adequate to redress their griev-

ances, and, therefore, a section 1983 action is inappropri-

ate. We reiterate that absent clear evidence of Congress’

intent, it is not for the courts to pick and chose among a

party's available remedies. In any event, while the dissent

characterizes the APA and section 1983 as “roughly parallel

remedies.” Dis. Op. n. 4, punitive damages are available

only in actions brought under the latter. See Carlson v.

Green, 446 U.S. 14, 22 (1980) (“[P]unitive damages are avail-

able in a proper § 1983 action’).

22a

gress intended it as the sole remedy for Guard tech-

nicians.””

For the reasens discussed above, we hold that appel-

lants acted under color of state law in participating in per-

17. Appellant’s analogy between this case and Bush v. Lucas,

462 U.S. 367 (1983) is flawed. !n Bush, the Court considered

it inappropriate to imply a Biven-type cause of action for a

federal employee against his employer because congres-

sional enactment of a comprehensive civil service scheme

was a “special factor counselling hesitation” to impiy the

requested remedy. /d. at 390. The Court characterized

the issue as follows: “whether an elaborate remedial sys-

tem that has been constructed step by step, with careful

attention to conflicting policy considerations, should be

augmented by the creation of a new judicial remedy.” Id.

at 388. (emphasis added). We have already seen that this

case does not involve an elaborate remedial system. In any

event, appellees have not asked us to augment their reme-

dies with “the creation of a new judicial remedy.” The

court in Bush was concerned that permitting a Bivens cause

of action violated the province of Congress. Here that

same deference cautions against denying appellees the stat-

utory remedy of section 1983.

We must likewise reject appellants’ argument that, in the

wake of Bush, allowing section 1983 actions against the

National Guard “would create technicians as a special class

ot federal employees” with “remedies for alleged constitu-

tional violation against their supervisors.” {appellants’ brief

at 20). National Guard technicians, like everyone else, may

bring a section 1983 against those who violate their consti-

tutional rights while acting under color of state law. Our

decision today does not create a special class of federal

employees. Guard technicians are “special,” in the sense

that some remedies may be availabie to them that are not

available to other federal employees, only because of the

hybrid status of the guard. To be sure, the blessing is a

mixed one: Guard technicians are aiso rare federal em-

ployees who can be /iable under section 1983. See Rowe

v. State of Tennessee, 609 F.2d 259 (6th Cir. 1979).

23a

sonnel decisions resulting in the discharge of appellees.

As we cannot infer congressional intent to preclude Guard

technicians from bringing section 1983 actions against

their superiors, we will affirm the district court’s decision

that appellees may maintain a cause of action against ap-

pellants under section 1983.

ROSENN, Circuit Judge, dissenting.

I respectfully dissent on two separate and independent

grounds.

First, I cannot agree that a state official who is a

designated agent of the federal government acts under

color of state law when he discharges a federal employee.

Second, I do not believe that Congress ever intended to

make the remedies of section 1983 available to aggrieved

federal employees where Congress has specifically de-

signed a comprehensive system of remedies for them by

which grievances can be pursued and, as in this instance,

the termination of federal employment successfully chal-

lenged. See Johnson v. Orr, 776 F.2d 75 (3d Cir. 1985).

The plaintiffs, Johnson and Sheller, were employed

by the New Jersey Air National Guard (ANG or the

Guard) as civilian technicians. Specifically, they had been

employed as aircraft mechanics on the night shift at the

ANG 108th Tactical Fighter Wing at the McGuire Air

Force Base (Tactical Wing) and served also as stewards

for the technicians’ union, Local 377 of the American Fed-

eration of Government Employees.

24a

Congress authorized the employment of civilian tech-

nicians to perform services under the National Guard

Technicians Act of 1968, 32 U.S.C. § 709 (1982) (the Act).

Prior to the 1968 amendments, technicians were persons

who cared for material, armament, and equipment of the

Army and Air National Guard. 32 U.S.C. §709(d) un-

equivocally converted the technicians into federal em-

ployees.' In summarizing the major provisions of the

Act, Congressman Bray of Indiana, who played a role in

the development of the legislation, explained that one of

the provisions converted national guard technicians to

federai employee status and another required “adjutants

general to be the sole agent for employment and adminis-

tration of the technician program under regulations pre-

scribed by the Secretary concerned.” 114 Cong. Rec.

H24709 (daily ed. August 1, 1968) (statement of Rep.

Bray). He further explained that “{t]hese employees

have their saiaries paid in full by the Federal Government

and must meet all the mental and physical standards as

well as professional qualifications prescribed by the mili-

tary department.” Jd. The Act also provided that in the

case of the technicians assigned to perform operational

duties at air defense sites, the Secretary of the Air Force

may prescribe their hours of duties and their rates of

basic and additional compensation. 32 U.S.C. § 709(g) (1).

The scheme of the Act authorizes the Secretary concerned

“to designate the adjutants general [of each State, the

1. The pertinent provision of section (d) provides:

A technician employed under subsection (a) is an employee

of the Department of the Army or the Department of the

Air Force, as the case may be, and an employee of the

United States.

25a

Territories, and the District of Columbia] to employ and

administer the technicians authorized .. .’’, 32 U.S.C.

§709(«), and empowers them to separate technicians from

employment fer cause. 32 U.S.C. 4 709(e) (3).

In the instant case, the majority acknowledges that

the plaintiffs here were “federai employees” at the time

of their discharge. Maj. op, 11. The majority does not

consider this dispositive, and standing alone it may not

be, although it is significant. The crucial question, as

stated by the majority, is whether the Act “was either in-

tended to render,” or effectively rendered the National

Guard “more federal in character te the point where tech-

nician supervisory personnel and the adjutant general can

no longer be considered as acting under color of state law

when participating in personnel decisions resulting in the

discharge of ANG technicians.’’ Maj. op 11. I disagree

that this is the crucial question. I believe the question is:

did the State of New Jersey play any part in the challenged

personnel action — the termination of the plaintiffs’ em-

ployment as technicians in the ANG?

Because the technicians were federal employees, the

State did not pay their salaries, prescribe their duties, or

have the power to discharge them. Only their employer

could have fulfilled this role, not the State. Accordingly,

Congress, by statute, specifically provided that the adju-

tant general could separate technicians from employment.

32 U.S.C. § 709 (e}{3). We have therefore held that at

least for purposes of mandamus jurisdiction, “there can

be no doubt” that the adjutant general of the State, al-

though he has not been cailed into active service, “is an

agency or an agent of the United States.” Chaudom v.

Atkinson, 494 F.2d 1323, 1329 (3d Cir. 1974).

26a

Thus, regardless of the hybrid character of the Na-

tional Guard, the State played no part in the plaintiffs’

separation from employment. Although the adjutant gen-

eral, unlike the technicians, retained his status under the

Act as a state official and was the chief acting executive of

the ANG, his power to terminate civilian technicians stem-

med only from his designated statutory authority to act

as a federal agent. “The mere fact that the federal agents

happen to be state officials does not, without more, con-

vert every intentional deviation from the federal path into

an action under color of state law.’’ Ellis v. Blum, 643 F.2d

68, 83 n.17 (2d Cir. 1981).

It is not unusual in modern society, and especially in

state government, for a versatile person to serve in two

capacities or wear “two hats.” For example, the Secretary

of Health and Human Resources regularly enters into

agreements with state agencies delegating authority to

them to make initial determinations as to eligibility for

social security disability benefits. See Ellis v. Blum, 643

F.2d at 70, 83 n.17. State or municipal police officers are

at times assigned to federal investigations, and for that

limited purpose act uader color of federal law, even though

for other purposes they remain accountable to their respec-

tive hiring employers. See Askew v. Bloemker, 548 F.2d

673, 677 (7th Cir. 1976). It is not uncommon for truck

drivers hired by one employer to be assigned, along with

the original employer’s truck, to another employer under

a& lease agreement. For the purpose of the bailment, the

truck driver is considered the employee of the lessee al-

though the driver may otherwise be accountable to his

original employer.

27a

Therefore, it is essential that we should look at the

capacity in which the official is acting and the character

of the act in question. Accordingly, in Moose Lodge No.

107 v. Irvis, 407 U.S. 163 (1972), the Court focused on the

specific conduct challenged. The Court there held that

despite the state licensing scheme for private clubs en-

gaged in the sale of liquor, and the comprehensive regula-

tions imposed by the Pennsylvania Liquor Control Board

upon them, ‘‘the operation of the regulatory scheme en-

forced by the Pennsylvania Liquor Control Board [did]

not sufficiently implicate the State in the discriminatory

guest policies of Moose Lodge to make the latter state

action within the meaning of the Equal Protection Clause

of the fourteenth amendment.’’ Jd. at 177.

Therefore, the question whether “state action” is

present or absent does not require examination of the

overall nature of the organization involved or the overall

regulatory scheme brought to bear upon it, but of the

character of the specific conduct that is challenged. In this

case, the action challenged is the termination of employ-

ment. In Jackson v. Metropolitan Edison Co., 419 U.S.

345 (1974), the action challenged was the termination of

service to a consumer by a regulated utility company.

Even assuming that the State had conferred monopoly

status on the utility, a point advanced by the plaintiff, the

Court held that merely because

a business is subject to state regulation does not by

itself convert its action into that of the State for pur-

poses of the Fourteenth Amendment. Nor does the

fact that the regulation is extensive and detailed, as is

in the case of most utilities, do so .... {The inquiry

28a

must be whether there is a sufficiently close nexus

between the State and the challenged action of the

regulated entity so that the action of the latter may

be fairly treated as that of the State itself.

Id. at 350-51 (emphasis added, citation omitted).

In the instant case, the State had no involvement in

the plaintiffs’ discharge: the State was not their employer.

The adjutant general in discharging them acted solely in

behalf of the Air Force Secretary, his designated superior

for this purpose. Although the ANG by its very structure

and purpose has numerous ties to the State, it depends

for technician manpower vitality upon the federal govern-

ment. An essential link in the maintenance of that vitality

is the adjutant general, who has federal statutory author-

ity to hire, pay, supervise, and terminate the National

Guard civilian technicians. When he acts in this capacity,

including the exercise of his authority and discretion to

discharge, he acts under color of federal and not state

law.

The majority reaches its result by relying for “strong

guidance” on our opinion in Lasher v. Shafer, 460 F.2d

343 (3d Cir. 1972). As Judge Gibbons, the opinion writer

in that case, noted, the legislation under which the ap-

pellant was disciplined in that case was “substantially

amended” by the Technician Act of 1968. Id. at 346, n.4.

The amendments, as I have related above, converted the

“caretaker” status of the technicians into a federal em-

ployment relationship. Lasher’s status as an employee

may not have been relevant in this case, but the plaintiffs’

status is germane in this case because, under the 1968

amendments, only a federal agency or federal agent could

effectuate their discharge.

29a

Furthermore, we decided Lasher two years before

the Court’s pronouncement in Jackson v. Metropolitan

Edison Co., which maintained that courts should focus on

the specific act at issue. In contradistinction from this

case, where the appellants acted in their capacities as

technicians, the court in Lasher did not see “how the acts

alleged in the complaint, if they occurred, were in any

way related to the care of the entrusted federal property.

The acts complained of . . . were done in the capacity of

member or employee of the Commonwealth militia, and

in pursuit of that militia’s perceived interests.” Jd. at 347.

Thus Lasher did not address a case where the act at issue

constitutes a duty assigned by federal law to a federal

agent. That is precisely the situation here where the

amendments of 1968 have transformed what was a loose

funding relationship under the former Caretaker Program

into one in which the adjutant general is a statutorily

designated federal agent with authority over federal em-

ployees. Although as the majority states, the adjutants

general remained state officials under the Act, Maj. Op. 4,

the Act indeed changed their status with respect to hiring,

paying, prescribing duties, and discharging civilian tech-

nicians by making them full federal agents for such

purposes.

In Ellis v. Blum, 643 F.2d 68 (2d Cir. 1981), the court

held that state social service officials who administer the

federal Socety Security Act under federal authority did not

act under color of state law for purposes of section 1983.

Id. at 83. The court noted, as referred to above, that in per-

forming the challenged act (making eligibility determina-

tions for social security disability benefits), the officials

acted under federal authority. Id. at 83 n.17.

| gh, (a ee ek Oe

30a

The Askew court held that St. Louis police officers as-

signed to a federal investigation acted under color of fed-

eral law. The plaintiff argued that the officers were ‘‘dual-

status’’ agents acting concurrently under state and federal

law. The officers remained accountable to the St. Louis

Police Department (SLPD). They were paid, however, by

the federal government through checks issued by the SLPD,

were subject to the immediate control of federal officials,

and were covered by the Federal Employees Compensation

Act for injuries suffered while on assignment. Holding

that the officers’ ties with the federal government stamped

their role in the challenged conduct as federal and not state,

the court asserted that these facts

cast an indelibly federal hue upon the activities of these

agents, even though they maintained official links with

the SLPD. Furthermore, the totality of the cireum-

stances surrounding the alleged raid out of which plain-

tiff’s § 1983 claim arises clearly shows that these

agents were acting pursuant to federal authority and

not under color of any state law.

Askew, 548 F.2d at 677.

The Askew court focused on the act at issue, not on the

broader relationship between the police officers and the

SLPD. It noted that the St. Louis officers participated in

a raid in Illinois, and therefore could have acted only in

their capacity as federal agents. Id. Just as the St. Louis

officers could not operate in Illinois in their capacity as

state officials, so the New Jersey Adjutant General could

not terminate federal employees in his capacity as a state

official.

I therefore disagree with the holdings of the Fifth and

Sixth Cireuits in NeSmith v. Fulton, 615 F.2d 196 (5th Cir.

3la

1980), and Rowe v. Tennessee, 609 F.2d 259 (6th Cir. 1979),

both cited by the majority. These courts held that adju-

tants general, in terminating civilian technicians, act un-

der color of State law. NeSmith relied chiefly on a state-

ment in the legislative history that authority over the Tech-

nician Program would remain ‘‘as a matter of law . . . at the

state level.’’ Jd. at 200 (quoting H. Rep. No. 1823, 90th

Cong., 2d Sess. (1968), 1968 U.S. Code Cong. & Ad. News

3324). A careful reading of the Report reveals only that

technicians ‘‘will be subject to certain supervisory controls

at the State level which would not apply in the case of the

typical civil service employees.’’ 1968 U.S. Code Cong. &

Ad. News 3324. Contrary to the NeSmith court’s assump-

tion, this statement does not answer the ‘‘color of state

law’’ question. Although Congress in the main permitted

administrative control of the Guard to remain at the state

level, it deliberately separated personnel matters for civ-

ilian technicians and delegated them to the Secretary of the

Army or Air Force as the case may be. The adjutants gen-

eral remain state officials, as I have already alluded, but

fer purposes of terminating civilian technicians, they can

act only under federal authority. The NeSmith and Rowe

courts failed to see this distinction; they did not focus on

the act of termination that was being challenged. In addi-

tion, the Rowe court was strongly influenced by the decision

in Lasher, supra at 8-9, which dealt with the National Guard

before the 1968 amendment. 609 F.2d at 264.

Rowe also relied on a policy rationale that is no longer

valid. The court explained that it sought to provide a com-

plete scheme of remedies for constitutional violations,

whether committed under color of federal or state law.

Rowe, 609 F.2d at 264-65. This complete scheme would

32a

comprise the complementary remedies of Bivens suits and

section 1983 actions, respectively. Id. However, Bush v.

Lucas, 462 U.S. 367 (1982), decided since Rowe, and dis-

cussed infra at 20-22, rejects this rationale.

I would therefore hold that the New Jersey Adjutant

General did not act under color of state law when he ter-

minated the plaintiffs.

IL.

Even assuming the presence of state action, perhaps a

more compelling reason for denying relief under section

1983 is that Congress intended to make remedies to ag-

grieved civilian technicians available only under the 1968

amendments. I base this statement or two grounds: (1)

prefatory language in the Act, and (2) the comprehensive

system Congress designed in the Act by which technicians

could pursue grievances arising out of termination of their

employment. In this instance, the plaintiffs took advantage

of that system and appealed to the district court under the

provisions of the Administrative Procedure Act (APA), 5

U.S.C. § 701 (1982), and ultimately to this court. We af-

firmed the grant of summary judgment in favor of the

plaintiffs on their due process claims. Johnson v. Orr, 776

F.2d 75 (3d Cir. 1985).?

2. Although the district court’s grant of summary judgment

reversed the plaintiffs’ termination of employment and

transferred their claims for back pay to the United States

Court of Claims, it did not order reinstatement because

they no longer satisfied the federal statutory requirement

for civilian technicians. Sheller had resigned from the Na-

tional Guard and Johnson had transferred his military serv-

ice to the Pennsylvania Air National Guard.

33a

The language of the Technicians Act expressly pre-

empts relief under earlier statutes. The preface to section

709(e) of the Act provides that its terms shall apply

‘*(nJotwithstanding any other provision of law....’’ We

interpreted this language in New Jersey Air National

Guard v. Federal Labor Relations Authority, 677 F.2d 276

(3d Cir. 1982), as overriding all other statutory remedies.

The question in the case was whether ANG was obligated

to bargain over certain conditions of employment. One

issue in contention was whether there should be a proce-

dure, consisting of binding arbitration, by which an ag-

grieved employer could challenge an adverse disciplinary

procedure. The court had before it the construction of the

Technicians Act of 1968 and conflicting provisions of the

Federal Labor Management Act enacted ten years later.

The court had no difficulty in construing the preclusive ef-

fect of section 709(e) of the 1968 Act as overriding all

prior statutory remedies. ‘‘A clearer statement is difficult

to imagine: section 709(e) must be read to override any

conflicting provision of law in existence at the time that the

Technicians Act was enacted.’’ Id. at 283. This statement

by our court should lead us to hold that section 1983 actions

are unavailable to civilian technicians employed under the

Act.

Setting aside the preface to section 709(e) of the Act,

analyses of section 1983 and of the Technicians Act disclose

that relief under section 1983 in this context is unnecessary

and inappropriate. Congress enacted 42 U.S.C. 41983 in

34a

response to lawless conditions existing in some states dur-

ing the period following the Civil War, which rendered life

and property insecure and which the states were unwilling

or powerless to correct. The legislative history of this act

and the statute itself “‘suggests that the Reconstruction

Congress had grave doubts about the reliability of state

courts as protectors of federal rights, and thus intended

that federal courts exist as fully independent alternatives

to state court systems.’’ L. Tribe, American Constitutional

Law, § 3-41, at 155 (1978). Federal courts, under the Act,

were compelled to intervene because the states were not

adequately deterring and correcting egregious constitution-

ai violations. Although the legislation had several subordi-

nate purposes, its broad aim ‘‘ was to provide a federal rem-

edy where the state remedy, though adequate in theory, was

not available in practice.’’ Monroe v. Pape, 365 U.S. 167,

174 (1960).

Cognizant of the history and purposes of 42 U.S.C.

§ 1983, the Court had an opportunity to review the reach of

the statute in Parratt v. Taylor, 451 U.S. 527 (1980). In

that case, a state prisoner sued prison officials under sec-

tion 1983 for loss of property, claiming a deprivation of due

process rights under the fourteenth amendment. Distin-

guishing the plaintiffs claim from the illegal search and

seizure claim in Monroe v. Pape, the Court acknowledged

the presence of action under color of state law and a de-

privation of property. It held, however, that a cause of ac-

tion would not lie because the deprivation resulted from a

random and unauthorized act and because state law af-

forded the prisoner a post-deprivation remedy. ‘‘This pro-

cedure was in existence at the time of the loss here in ques-

tion but [the prisoner] did not use it.’’ Jd. at 543. Thus,

35a

the Court considered the presence of a remedy available for

the violation as significant.

In the instant case as well, plaintiffs had an available

remedy. Not only was the remedy handy, but the plaintiffs

Johnson and Sheller took full advantage of it. Section

709(e) of the Act provides for separation for cause or sep-

aration for failure to continue membership in or specified

grade in the National Guard. In the event of termination

as a technician, the technician must be given written notice

‘*at least thirty days prior to the termination date of such

employment.’’ 32 U.S.C. § 709(e)(6). The Act also pro-

vides for a right of appeal to the adjutant general.? The

plaintiffs utilized the appeal procedure set forth in the Act

and then exercised their right to proceed with an action

against their employer under the Administrative Procedure

Act (APA). They sued for reinstatement under the APA

and the courts found their terminations to be contrary to

law. Johnson v. Orr, 776 F.2d at 82-83. In addition, plain-

3. Technician Personnel Manual 753, promulgated by the Na-

tional Guard Bureau, details the appellate process that each

adjutant general must afford his jurisdiction’s technicians.

See Subchapter 4, “Appeals,” Subchapter 5, “Conduct of

the Hearing,” and Appendices A, “Adverse Action Flow

Chart,” and B, “Sample Notices.” In addition, the New

Jersey Department of Defense promulgated NJANG Regula-

tion 40-13 to “implement the provisions of the National

Guard Bureau Technician Personne! Manual, Technician

Personnel Pamphlets, and applicable regulations of the

United States Civil Service Commission’s Federal Personnel

Manual.” NJANGR 40-13, chapter 1-1. Chapter 7 “Personnel

Relations and Services” further details the appeals process

outlined in the Technician Personnel Manual.

4. The APA generally creates a cause of action when a plaintiff

alleges that federal officials have violated federal law. 5

(Continued on following page)

36a

tiff Johnsons’ suit fer back pay has been transferred to the

United States Court of Claims. To impose section 1983 as

another layer of protection for technicians is not only su-

pererogatory; it unbalances Congress’ carefully crafted

National Guard personnel system. It counters a congres-

sional intent that the Technicians Act provide the exclusive

avenne of relief for civilian technicians.

Because Congress tailored section 709 to provide the

protections it thought best served the goals of the techmic-

ian program, it established section 709 as the exclusive

remedy for technicians. It ensured that they would not have

available, as an alternate channel, the grievance procedures

generally afforded federal employees. 32 U.S.C. § 709(f)

specifically provides that 5 U.S.C. $4 7511 and 7512, both

of which deal with removal and suspension of federal em-

ployees, do not apply to technicians. Section 7512 is the

provision of the Civil Service Reform Act of 1978 that

establishes procedures to be followed in taking adverse

actions against federal employees. This legislative scheme

demonstrates that Congress intended the procedures pro-

vided in the Technicians Act and the APA to serve as the

exclusive channel for technician appeals.

The Supreme Court has in recent years refused to

allow section 1983 suits where Congress has already crafted

a comprehensive remedial scheme to address a specific

(Continued from previous page)

U.S.C. §§ 702, 706 (1982). Chrysler Corp. v. Brown, 441

U.S. 281, 317-18 (1978). Together, section 1938 and the

APA form a system of roughly paralellel remedies, the

former applying to the states and the latter to the federal

government. It is therefore anomalous to grant relief un-

der both statutes for the same alleged wrongful act.

37a

problem. Such comprehensive legislation evinces a congres-

sional intent that such a scheme be exclusive. Support for

this view can be found in Middlesex County Sewage Au-

thority v. National Sea Ciammers Association, 453 U.S. 1

(1981), where plaintiffs brought suit against the federal

government and various state entities and officials alleging,

inter alia, violations of the Federal Water Pollution Con-

trol Act (FWPCA), 33 U.S.C. § 1251 et seq. (1976 ed. and

Supp. IIT), and the Marine Protection, Research, and Sanc-

tuaries Act (MPRSA), 33 U.S.C. § 1401, et seq. (1976 ed.

and Supp. IIT). The Court addressed the availability to

plaintiffs of a section 1983 suit based on the two environ-

mental statutes and the ‘‘and laws’’ provision of section

1983. It held that a section 1983 suit was precluded because

Congress had provided such tailored and comprehensive

remedies in the two environmental statutes that it must

have intended that those remedies be exclusive.

Wher the remedial devices provided in a particular

Act are sufficiently comprehensive, they may suffice

to demonstrate congressional intent to preciude the

remedy of suits under § 1983.

... [T]he FWPCA and MPRSA do provide quite com-

prehensive enforcement mechanisms. It is hard to be-

lieve that Congress intended to preserve the § 1983

right to action when it created so many specific statu-

tory remedies .... We therefore conclude that the ex-

istence of these express remedies demonstrates not

only that Congress intended to foreclose implied pri-

vate actions but also that it intended to supplant any

remedy that otherwise would be available under 4 1983.

Id. at 20-21 (citations omitted).°

5. The majority acknowledges that 1983:actions are precluded

where a comprehensive remedial scheme covering a spe-

(Continued on following page)

38a

The Court reaffirmed this reasoning in Smith v. Rob-

wnson, 52 U.S.L.W. 5179 (U.S. June 26, 1984) (No. 82-2120).

In Smith, parents brought suit on behalf of their handi-

capped child under, inter alia, the Education of the Handi-

capped Act (EHA), 20 U.S.C. § 1400 et seg. (1982), and 42

U.S.C. § 1983. The Court focused on whether the EHA pre-

cluded ali other avenues of relief. It held that Congress had

indeed intended ‘‘the EHA to be the exclusive avenue

through which a plaintiff may assert an equal protection

claim to a publicly financed special education.’’ Jd. at 5184.

As in Sea Clammers, the Court inferred this legislative in-

tent from the existence of the specific remedial scheme:

The EHA is a comprehensive scheme set up by Con-

gress to aid the States in complying with their consti-

tutional obligations to provide public education for

handicapped children. Both the provisions of the stat-

ute and its legislative history indicate that Congress

intended handicapped children with constitutional

claims te a free appropriate public education to pursue

those claims through the carefully tailored administra-

tive and judicial mechanism set out in the statute.

Id. at 5184. The Court emphasized that, in light of the

‘‘comprehensive nature’’ of the Act, allowing a handi-

capped child to go directly to court with an equal protection

claim, even though the claims alleged were based on inde-

pendent constitutional violations rather than violations of

the EHA, would render much of the Act supe” ‘luous and

(Continued from previous page)

cific area evinces a congressional! intent to preclude other

remedies. The majority, however, inexplicably chooses not

to infer such congressional intent from the presence of the

specific and comprehensive scheme prescribed by the Tech-

nicians Act. Maj. op. at 17-21.

39a

run counter te the congressional view of the best manner of

addressing the problem. Jd. at 5184-85.

The Court concluded its analysis:

[Section] 1983 is a statutory remedy and Congress re-

tains the authority to repeal it or replace it with an

alternative remedy. The crucial consideration is what

Congress intended.

In this case, we think Congress’ intent is clear.

Allowing a plaintiff to cireumvent the EHA adminis-

trative remedies would be inconsistent with Congress’

carefully tailored scheme. The legislative history gives

no indication that Congress intended such a result.

Rather, it indicates that Congress perceived the HHA

as the most effective vehicle for protecting the constitu-

tional right of a handicapped child to a public educa-

tion.

Id. at 5185 (citations and footnotes omitted). See also

Guardians Association v. Civil Service Commission of the

City of New York, 463 U.S. 582, 610 n.3 (Powell, J., con-

curring) (‘‘I also would hold that private actions asserting

violations of Title VI may not be brought under 42 U.S.C.

§ 1983. Congress’ creation of an express administrative

procedure for remedying violations strongly suggests that

it did not intend that Title VI rights be enforced privately

either under the statute itself or under § 1983.’’).

In drafting the Technicians Act, Congress had to con-

sider the twin demands of (1) federal personnel policy, and

(2) the military mission and sui generis status of the Na-

tional Guard.’ Both considerations are within the arena of

6. The technicians’ tasks parallel those of other civilian em-

ployees but arise in a distinctly military context and tinge

the employment relationship with “significant military con-

cerns.” New Jersey Air National Guard, 677 F.2d at 279.

40a

congressional expertise and appropriate deference to Con-

gress dictates that courts refrain from interfering.

Limiting National Guard employees to statutorily pro-

vided remedies would maintain consistency with judicial

policy regarding all federal employees. Courts generally

funnel federal employee grievances into systems specif-

ically created for them, rather than allow suits on other

theories. For example, as noted in the district court opinion

in this case, constitutional claims that are unfair labor

practices fall within the exclusive jurisdiction of the FLRA.

See also Purtill v. Harris, 658 F.2d 134, 137 (3d Cir. 1981)

(this court declined to recognize a Bivens cause of action

because the federal employee was afforded complete and

efficient remedy by the Age Discrimination Employment

Act).

In New Jersey National Guard, swpra, we had occasion

to address the relationship of the Technicians Act to the

Federal Labor Management Act (FLMA) requiring estab-

lishment of procedures for grievance appeals. Congress

enacted the FLMA ten years after the Technician Act, as

distinguished from section 1983, which it adopted approxi-

mately one hundred years before in a wholly different con-

text. Nonetheless, we rejected the contention that the

FLMA overrode the very provisions of section 709(e) of

the Technician Act now before us. We emphasized the

specificity of the Technician Act and the logic of noninter-

ference with the system it established.

A preference for the specific over the general stat-

ute makes considerable sense in the situation we con-

front here. Congress in 1968 turned its attention to the

very ciass of federal employees involved in this dispute.

It crafted with care precise provisions intended to

rowly directed activity that Congress, upon considera-

tion of the issue in dispute here — the right o: a,peal

by a Guard technician — decided that very matter,

with explicit and specific language, in 1968.

677 F.2d at 285-86. We concluded that, because the FLMA

addressed all federal employees, “‘it appear[ed] incon-

ceivable’’ that Congress intended it to override the system

it had carefully devised in the Technicians Act. Jd. at 286.

Turning to the instant case, it would appear a fortiori

that Congress did not intend section 1983 to supplant or

even augment the remedies it had established for aggrieved

technicians in the 1968 Act. Moreover, section 1983 is sep-

arated from its moorings in purpose and time whereas the

Technicians Act remains pertinent, pointed and specifically

crafted for a unique military organization, specifically pro-

viding that the remedies herein provided would apply

‘* (notwithstanding any other provision of law.’’ 32 U.S.C.

§ 709(e). I therefore believe that in the context of this liti-

gation, an additional remedy under section 1983 is imper-

missible and unwarranted.

Appellants analogize to Bush v. Lucas, 462 U.S. 367

(1983), which addressed a confluence of two of the factors

discussed above: the wisdom of declining to employ a gen-

eral remedy to interfere with a specific and comprehen-

sive one, and the disinclination to interfere with congres-

sional enactments concerning federal personnel policy.

42a

The Court in Bush addressed the role of Biwens actions,

a parallel remedy to section 1983 for wrongs committed

under color of federal law but without an available statu-

tory remedy. Bivens v. Siz Unknown Named Agents of the

Federal Bureau of Narcotics, 403 U.S. 388 (1971). In al-

lowing Bwens actions the Supreme Court created a fed-

eral nonstatutory remedy where no other remedy existed.

Id. at 395-96. In Bush, however, the presence of a com-

prehensive civil service scheme rendered a Bivens action

inappropriate. Bush, 462 U.S. at 368. The Court rea-

soned that the question was not what remedy should be

provided for a wrong that would otherwise go unredressed

but “whether an elaborate remedial system that has been

constructed step by step, with careful attention to conflict-

ing policy considerations, should be augmented by the crea-

tion of a new judicial remedy for the constitutional viola-

tion at issue.” Id. at 388.7

In this case, the majority rejects the Bush rationale.

The majority reasons that the separation-of-powers con-

cern that deterred the Court in Bush from augmenting a

statutory remedy with a judicial one is absent in a case in-

volving section 1983 because it is a statutory action. The

majority’s language pays homage to the concepts of sepa-

ration of powers and deference to congressional intent, but

its conclusion does not. It overstates the difference be-

tween a section 1983 remedy and the judicially created

Bivens remedy and understates the difference between

section 1983 and recently enacted specific legislative

remedies.

7. Appellant alleged a Bivens cause of action in the district

court. The court, citing Bush, dismissed the claim as inap-

propriate in this context. No appeal was taken from the

dismissal.

43a

The majority’s statement that section 1983 is a statu-

tory remedy is, of course, correct, but its implied conclu-

sion that it therefore takes precedence over later, more

specific, legislation does not necessarily follow. The ma-

jority implicitly accepts the fallacious premise that all

statutory remedies stand on equal footing. Yet the his-

tory, purposes, objectives, and timing of each must be

weighed in a search for congressional intent. When one

does such weighing, it seems certain that the recently

enacted Technicians Act, with its specific remedial factors,

negates the broad based legislation addressed to the cor-

rection of the disorders and chaos of the Reconstruction

period, As we decided in New Jersey National Guard, 677

F.2d 286. ‘‘A preference for the specific over the gen-

eral statute makes considerable sense in the situation we

confront here.” See supra at 19.

IV.

In summary, when the adjutant general tertninated

the plaintiffs as federal employees, he exercised no state

authority. He acted only as a statutorily constituted fed-

eral agent. In enacting the technicians Act of 1968, Con-

gress structured a statute for the unique military status of

the National Guard and its civilian technicians, and forged

within its framework comprehensive procedural safe-

guards. It expressly precluded the application of earlier

statutes.

In answer to the certified question of the district

court, I would therefore respond that technician supervi-

sory personnel and the adjutant general of the State of

New Jersey, when participating in personnel decisions re-

44a

sulting in the dismissal of two technician employees under

the authority of the National Guard Technicians Act, were

not acting under color of state law for purpose of section

1983. Even if they were, the remedies provided by the

Technicians Act are exclusive and preclude a section 1983

action.

I therefore respectfully dissert.

A True Copy:

Teste:

Clerk of the United States Court of Appeals

for the Third Circuit

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

NOS. 84-5877 and 84-5888

ROY A. JOHNSON and JOHN J. SHELLER

Appellants in No. 84-5877

Vv.

VERNE ORR, Secretary; FRANCIS GERARD, Major

General; WILFRED C. MENARD, JR., Major General;

COLONEL JOHN MURPHY; BRIGADIER GENERAL

CHARLES YOUNG, Air Commander; LT. COL. BILLY

MC DANIELS.

ppellees

Verne Orr, Secretary of the

Air Force, Cross-Appellant

in No. 84-5888

Appeal from the United States District Court

for the District of New Jersey - Trenton

D.C. Civil No. 82-2578

Argued September 10, 1985

Before: SEITZ, BECKER, and ROSENN,

Circuit Judges

Opinion Filed October 31, 1985

46a

MARTIN COHEN, ESQUIRE (Argued)

American Federation of Government

Employees

4817 Old York Road

Philadelphia, PA 19141

Attorney for Appellants in 84-5877

Of Counsel:

Mark Roth, Esquire

General Counsel

American Federation of Government Employees

1325 Massachusetts Avenue, NW

Washington, DC 20005

W. HUNT DUMONT, United States Attorney

BETTE E. UHRMACHER, Assistant United

States Attorney (Argued)

402 East State Street, Room 265

Trenton, NJ 08608

Attorneys for Appellees

IRWIN L KIMMELMAN, Attorney General of

the State of New Jersey

DOROTHY DONNELLY, Deputy Attorney

General (Argued)

Richard J. Hughes Justice Complex

CN 112

Trenton, NJ 08625

Attorneys for Lt. Col. Billy McDaniels

OPINION OF THE COURT

ROSENN, Circuit Judge.

Plaintiffs, Roy A. Johnson and John J. Sheller, form-

erly employed by the New Jersey Air National Guard

(ANG or the Guard) as civilian technicians, were dismissed

from employment for alleged labor activities in violation of

federal law. The New Jersey Adjutant General who dis-

47a

missed them acted upon a pretermination recommendation

of a hearing examiner for the ANG who held that the tech-

nicians had indeed violated applicable federal statutes.

Plaintiffs appealed under the provisions of the Adminis-

trative Procedure Act (APA), 5 U.S.C. § 701 (1982), to the

United States District Cuurt for the District of New Jersey

seeking a reversal of the Adjutant General’s decision.'

The court granted the plaintiffs’ motion for summary

judgment and entered judgment in their favor under the

Administrative Procedure Act against the defendant, Verne

Orr, Secretary of the Air Force, in his official capacity.

This in effect reversed the terminations of their employ-

ment and may support their claims for back pay, claims that

have been transferred by the district court to the United

States Court of Claims. Secretary Orr timely appealed to

this court from the summary judgment. The district court

declined to reinstate the plaintiffs to employment, however,

because it concluded they no longer satisfied the federal

statutory requirement for civil technicians that they also

serve as military members of the ANG. They appeal the

denial of this motion for reinstatement. We affirm.

1. The complaint also alleged violations of 42 U.S.C. § 1983

(1982) and sought damages arising out of plaintiffs’ dismis-

sal from employment based on a denial of due process and

a violation of their first amendment rights. The district

court entered summary judgment for the defendants on

plaintiffs’ due process claims. The court then certified for

appeal to this court the question whether the defendants

acted “under color of state law” for purposes of 42 U.S.C.

§ 1983. That appeal is docketed to Nos. 84-5859 and

84-5860 and forms no part of the disposition of this appeal. «

48a

Plaintiffs, who had been employed as aircraft mechan-

ics in the night shift at the ANG 108th Tactical Fighter

Wing at the McGuire Air Force Base (Tactical Wing),

served also as stewards for the technicians’ union, Local 377

of the American Federation of Government Employees (the

Union). As stewards, their responsibilities included filing

grievances on behaif of bargaining-unit members and keep-

ing them advised of matters that might affect their working

conditions. In the period immediately preceding plaintiffs’

dismissal, the Tactical Wing was in transition from using

the older F-105 aircraft to the new F-4D fighter-bomber.

The United States Air Force established a schedule that re-

quired the Wing to complete its transition by October 1,

1981, and reach combat readiness status by that date. As

the combat readiness date approached, Wing Commander

General Young foresaw problems meeting the deadline.

Complicating matters for him was the Union’s request,

made the preceding June, that he adjust the technicians’

schedules to allow them a three-day Labor Day weekend.

The night shift technicians normally worked Tuesday

through Saturday, approximately 2:00 P.M. to 10:30 P.M.

In order to satisfy the Union’s request for a three-day

weekend and also to meet the transition schedule, the ANG

allowed the technicians the Saturday of Labor Day weekend

as a holiday, and instead required them to work the preced-

ing Monday, August 31, 1981, from 7:30 A.M. to 4:00 P.M.

The technicians had no objection to working on Monday, but

pointed out that their usual hours whenever they were as-

signed work on Mondays were 2:00 P.M. to 10:30 P.M.

They also asserted that their collective bargaining contract

49a

entitled them to notice two weeks prior to the change to the

earlier Monday hours.

On August 26, 1981, several night-shift technicians com-

plained to plaintiff Johnson regarding the Monday sched-

ule. That day, Johnson contacted Colonel Wingert, who

dealt with scheduling problems. Colonel Wingert said that

he would gather more information and then discuss the

matter with Johnson. During a routine break that evening,

the night-shift technicians gathered informally and Johnson

related this exchange to them. Those present, including

plaintiff Sheller, discussed their options, but reached no

decision. Plaintiffs promised to seek advice from other

union officials. The next day, August 27, Colonei Wingert

told . vanson that the agency would require the technicians

to work the reassigned shift on Monday. During that eve-

ning’s authorized break, plaintiffs discussed management’s

decision with the technicians. Johnson, he so asserted dur-

ing the ensuing litigation, told the technicians to comply

with the revised schedule and promised that the Union

would file a grievance and, if necessary, seek arbitration.

On the other hand, the ANG claimed that the technicians

discussed a number of options for disrupting the work

schedule, including refusing to report at the scheduled time,

taking unscheduled sick leave, cr engaging in slow downs.

On August 31, 1981, all night technicians complied with the

new schedule and commenced work at 7:30 A.M.

On September 2, 1981, plaintiffs’ supervisor, Colonel

Murphy, a defendant, notified plaintiffs by letter of a pro-

posal to terminate their employment because they had con-

ducted a prohibited union meeting on official time and had

advocated a work slowdown and disruption of the Tactical

Wing Mission. Plaintiffs made a detailed reply in writing

502

to the proposed removal, in essence denying the allegations

against them. On October 1, 1981, General Young, Wing

Commander, sustained the charges contained in the pro-

posed notice of removal and informed plaintiffs of their

right to appeal his decision.

Plaintiffs appealed and Colonel Newman, a hearing ex-

aminer for the National Guard Bureau, conducted an ad-

ministrative hearing. In his written opinion, Newman

stated that plaintiffs were ‘‘charged with violation of 5

U.S.C. 4 7131 by conducting Union business while the em-

ployees were in duty status and of 5 U.S.C. § 7116 by calling

for and condoning a work slowdown and failing to take

action to stop such activity.’’ Newman concluded that

plaintiffs had violated both sections and recommended that

they be removed from employment as technicians. On

January 26, 1982, defendant Menard, as State Adjutant

Generai, implemented Newman’s recommendation and dis-

charged Johnson and Sheller.”

On August 6, 1982, plaintiffs filed this suit against

Menard, Murphy, and Young in their individual capacities

and against Verne Orr, Secretary of the Air Force, and

Franci3 Gerard, Chief of Staff of the ANG, in their offi-

cial capacities. Plaintiffs asserted that defendants acted

arbitrarily and capriciously in violation of constitutional

and statutory law. They further alleged that the actions

in question were in retaliation for plaintiffs’ union activi-

2. Both the Union and the ANG filed charges of unfair labor

practice with the Federal Labor Relations Authority (FLRA).

The FLRA issued a complaint as to ANG’s charges, but for

jurisdictional reasons, declined to consider those of the

Union.

5la

ties and for their exercise of first amendment rights to

freedom of speech and asseciation.

Defendants initially moved to dismiss the complaint

for failure to state a claim or, in the alternative, for sum-

mary judgment. The district court, in its opinion of July

8, 1983, denied defendants’ motion and ruled that plain-

tiffs had stated a cognizable claim. The court ruled that

it had jurisdiction under the APA to review the decision

of the Guard to terminate the plaintiffs.

The court subsequently granted plaintiffs’ motion for

summary judgiment on their APA claim, thereby revers-

ing the decision of the National Guard, and denied the de-

fendants’ motion for summary judgment. The court re-

versed the section 7131 charge for lack of evidence that

the employees were on duty status at the time of the meet-

ing. It reversed the section 7116 charge on an error of law:

the statute governs activities of unions as organizations

and does not address those of individual members. As to

plaintiffs’ ciaim of lack of due process, the court found that

the notice given them of the charges adequately satisfied

constitutional due process requirements. As to plaintiff’s

first amendment claims, the court found that the examiner’s

conclusion that required plaintiffs to speak out during dis-

cussion of job actions violated their first amendment rights.

It did not, however, reinstate plaintiffs. Sheller was no long-

er a National Guard member, and Johnson resigned from

the ANG and joined the Pennsylvania Air National Guard.

The district court held that, in order to comply with 32

U.S.C. §709(b) requiring that technicians also serve as

membeis of the National Guard, a technician must concur-

52a

rently perform civilian and military duties in the same Na-

tional Guard unit. Thus, the denial of reinstatement con-

stituted a denial of the request for injunctive relief, The

grant of plaintiffs’ motion for summary judgment under

the Administrative Procedure Act-in effect granted their

request for a declaratory judgment that the defendants had

unlawfully terminated plaintiffs’ employment.

II.

The parties raise three issues on appeal. First, plain-

tiffs argue that the ANG denied them due process because

it did not provide them wiih notice of the statutory pro-

visions they had allegedly violated. Second, the Secretary

argues that the district court erred when it granted plain-

tiffs’ motion for summary judgment under the APA.

Finally, plaintiff Johnson asserts that the district court

should have reinstated him to his technician’s position. We

consider each of these contentions in turn.

Plaintiffs Johnson and Sheller contend that the ANG

notice of the pretermination hearing was constitutionally

inadequate because it failed to notify them of the precise

statutory provisions they had allegedly violated. The let-

ter of Colonel Murphy, notifying plaintiffs of their pro-

posed termination stated that it was ‘‘based upon your

conducting an unauthorized meeting of technicians on gov-

ernment time and advocating a slowdown of work and

disruption of the 108 TFW Mission.’’ The letter further

detailed the factual basis underlying these allegations.

53a

Plaintiffs contend that this did not satisfy constitutional

requirements of adequate pretermination notice.

Notice must be adequate ‘‘to apprise interested parties

of the pendency of the action and afford them an opportun-

ity to present their objection.’’ Mullane v. Central Han-

over Trust Co., 339 U.S. 306, 314 (1950). This court re-

cently explained that ‘‘[t]he right to a hearing is certainly

of little value without prior notice of the charges pre-

sented, in sufficient detail fairly to enable the party

charged to demonstrate any error that might exist.’’ Cohen

v. City of Philadelphia, 736 F.2d 81, 84 (3d Cir. 1984)

(quoting Goss v. Lopez, 419 U.S. 565, 579 (1975) ; Mullane,

339 U.S. at 314), cert. denied, 53 U.S.L.W. 3365 (U.S. Nov.

13, 1984). See alse Memphis Light & Water Division v.

Craft, 436 U.S. 1, 14 (1978) (purpose of due process is to

permit the affected individual to prepare adequately for

impending hearing).

In this case, the district court found that Colonel Mur-

phy’s letter to the plaintiffs gave adequate notice because

it ‘‘listed both the alleged facts upon which the defendants

were relying and the reasons those facts were felt to be

offensive.’’ The plaintiffs’ additional complaint, that the

Murphy letter misled them because it notified them only

that they had advocated illegal acts whereas specification

two of the formal charges also alleged that they condoned

the advocacy, is of little significance. The factual predi-

cate for the notice and for the charge as recast is the same

and the slight variation between the two charges in speci-

fication two could not have prejudicially affected the

preparation of the defense. Furthermore, the ANG argues

that the examiner recast this specification at the request

o4a

of plaintiffs’ counsel. The Murphy notice for the ANG

and plaintiffs’ responses (Admin. Record pp. 11-16, 46-48)

disclose that plaintiffs thoroughly understood the nature

of the charges and they were able adequately to prepare

their defense. They knew that their role in the technicians’

discussions relative to the shift change was the essence

of the charges. Moreover, had insufficient notice ham-

pered plaintiffs’ preparation they could have moved at the

hearing for a continuance. They did not. Their failure to

protest at the hearing strongly indicates that the notice

was adequate and they were satisfied with it. The district

court properly rejected this contention of the plaintiffs.

The Secretary of the Air Force, in his cross-appeal,

argues that the district court erred in granting summary

judgment for plaintiffs on their APA claim. The district

court granted the summary judgment motion because, it

concluded. substantial evidence did not exist to support the

hearing examiner’s decision. The Administrative Proce-

dure Act requires the reviewing court to set aside those

agency actions, findings, and conclusions that are arbitrary,

capricious, an abuse of discretion, or otherwise not in ac-

cordance with the law, 5 U.S.C. §706(2)(A), contrary to

constitutional right, 5 U.S.C. § 706(2)(B), in excess of sta-

tutory discretion, 5 U.S.C. § 706(2)(C), or unsupported by

substantial evidence, 5 U.S.C. § 706(2)(E). See also Neal

v. Secretary of the Navy, 639 F.2d 1029, 1036-37 (3d Cir.

1981) (the court has power and duty under APA to review

actions of Enlisted Performance Board and Board for

Correction of Naval Records). Our task is to determine

whether the district court erred in its review.

55a

The hearing examiner found against p.uintiffs on two

grounds. He found that they had violated 5 U.S.C. 47131

by conducting ‘‘Union business on Official Time’’ and

violated 5 U.S.C. §7116 by condoning the advocacy of a

work slowdown. 5 U.S.C. § 7131‘b) provides that activities

relating to the internal business of a labor organization

shall be performed while the employee is on ‘‘nonduty’’

status. The examiner found that plaintiffs violated 5

U.S.C. $7131 by conducting union business while employ-

ees were on duty status. The district court rejected the

examiner’s finding that the plaintiffs were on duty status

during the shift discussions by the technicians. The court

concluded that substantial evidence did not support this

finding.

In reaching its conclusion, the court apparently as-

sumed that, because virtually all of the employees were

on ‘‘break’’ during the meeting, they were on ‘‘non-duty”’

time. The defendants persuasively argue that the district

court’s assumption is incorrect; breaks are in fact ‘‘duty”’’

time, both in practice and under the Guard’s regulations.

The district court took no additional evidence and relied

on the administrative record in arriving at its legal con-

clusion that the plaintiffs were not on duty status during

the break. This is a legal question and the scope of our

review is plenary.’

3. Plaintiffs contend that we should not review this issue be-

cause the defendants raise it for the first time on appeal.

The record is not clear in this respect. It seems, however,

that the assumption that breaks are duty time formed an

esSential link in the examiner's chain of logic. Without it,

he could not reasonably have reached the issue he dis-

(Continued on following page)

56a

The National Guard Burean’s Technician Personnel

Manual, TPM 600/610, at 1-4, provides in pertinent part:

14, ESTABLISHMENT OF WORK SCHEDULES

d. (ADDED). Rest periods. Short rest periods dur-

ing the daily tour may be permitted when such periods

are beneficial and/or necessary.

(2) Rest periods granted im accordance with these

provisions are considered duty time and are cluded

im the daily tour of duty. Rest periods other than

those provided herein may not be considered a part

of the daily tour of duty; such periods must be

charged to the appropriate type of leave. (Emphasis

added.)

‘‘Duty’’ time, under the regulations includes regular break

time, unless the breaks are unusual and are charged to

leave time. We therefore conclude that the meetings of the

technicians to discuss the change in their shift schedule

occurred on duty time. The district court erred in con-

cluding otherwise.

Our conclusion that the plaintiffs were on duty time,

however, does not end the matter. We must address a

critical question that the district court found unnecessary

to consider in light of its disposition of the issue of plain-

tiffs’ duty status: were the technicians, including the

plaintiffs, conducting internal business of a labor organi-

(Continued from previous page)

cussed—whether the assembly of the technicians consti-

tuted a union meeting and therefore a violation. Thus, it

is arguable that the defendants prevailed on this point be-

fore the examiner and, without argument, lost it before the

district court. We therefore deem it appropriate for review.

57a

zation at their breaktime meetings? As noted above, 5

U.S.C. § 7131(b) prohibits conducting ‘‘inte:rnal business of

a labor organization’’ on duty time. Although it did not

reach the issue of the nature of the business the technicians

were conducting on their breaks, the dist:rict court does

provide some illumination. In its opinion, it tangentially

states: ‘‘It would be difficult for the court tto conclude that

plaintiffs conducted internal union busimess during the

August 26 meeting.’’ The court reasoned that the ex-

amples of internal business provided in the statute (‘‘the

solicitation of membership, elections of labor officials, and

collection of dues’’ 5 U.S.C. § 7131(b)) ‘‘do mot characterize

the substance of the August 26 meeting.’’ If the substance

of the meetings did not involve internal union business,

there can be no violation regardless of whether the meet-

ing took place on duty time. Because the district court

reached its decision on the basis of its review of the ad-

ministrative record, which we have before us, we are in

as good a position to review it and, in the interest of judi-

cial economy, we will do so.

Section 7131(b) provides as examples of internal union

business ‘‘the solicitation of membership, election of labor

organization officials, and collection of dues... .’’ The

legislative history is more specific. The Senate Report

that accompanied the Civil Service Reform Act of 1978

discussed the distinction between union activities that ‘‘re-

late to the labor management relationship’’ and those that

relate to ‘‘ ‘internal’ labor organization business.’’ Ex-

amples of the former are ‘‘the investigation and attempted

informal resolution of employee grievances, participation

in formal grievance resolution procedures ... and dis-

58a

cussing problems in agreement administration with man-

agement officials.’’ S. Rep. No. 969, 95th Cong., 2d Sess.

112-113, reprinted im 1978 U.S. Code Cong. & Ad. News

2723, 2835.

Both the language of the statute and the Senate Re-

port support the conclusion that Congress used the phrase

‘internal business of a labor organization’’ in section

7131(b) advisedly. It recognized the distinction between

matters that form the ordinary grist for grievances be-

tween employees and management — hours, pay, and con-

ditions of employment — and matters that concern the

relationship between union members and union organiza-

tions. The former could be expected to be the subject of

conversation and discussion jn the workplace and were

not excluded by section 7131(b). Matters, however, involv-

ing ‘‘internal union business,’’ such as the collection of

union dues, the solicitation of union members, and union

election campaigning, had no place in the workshop and

were barred by section 7131(b).

An examination of the record re ’eals that at the break

meeting the technicians, including plaintiffs, discussed no

interna! union business. They conducted no internal union

business. They merely discussed their concern and objec-

tions to the change in the shift schedule without the

requisite contractual notice and their potential grievance

‘arising out of the change. In fact, the plaintiffs contended

at the hearing that their gathering failed to satisfy the

basic criteria for a union meeting because they posted no

notice of the meeting and non-union members of the bar-

gaining unit attended.

The examiner found ‘‘that the subject matter dis-

cussed ... principally centered around the discontent of

several employees with a change in the work week and

the night shift arrangement.’’ This was a matter which,

under the language of the statute and the lumination of

the Senate report, did not constitute internal union busi-

ness. It amounted to nothing more than an ordinary work

condition grievance arising out of what the technicians

considered to be a management violation of the collective

bargaining agreement. The examiner, however, erroneous-

ly concluded that these were ‘‘matters that are clearly

‘Union business.’ ’”

Both the general thrust of the statute and the specific

examples of the Senate Report indicate an intent to per-

mit discussions of grievances regarding working conditions.

Because such discussions form a substantial segment of a

union’s activities, it is likely that had Congress intended

to preclude such activities, it would have se indicated in

the Committee report or in the statute itself. Instead, Con-

gress carefully circumscribed the activities to be forbidden

as ‘‘internal.’’ Because the discussions of the Union mem-

bers at the evening meetings fall outside the scope of sec-

tion 7131(b), we find no merit in the Secretary’s contention

that the district court erred in reversing the hearing ex-

aminer. Accordingly, we hold that a meeting of National

Guard technicians for the purpose of discussing a poten-

tial working condition grievance does not constitute the

4. The examiner also concluded that the meeting conducted

on August 26 “was, in fact, a Union meeting, called by offi-

cials of the Union to conduct Union business.” We need

not decide whether it was a union meeting in light of the

holding we reach.

60a

transaction of ‘‘internal union business’’ within the mean-

ing of section 7131(b).

The hearing examiner also held that plaintiffs vio-

lated 5 U.S.C. § 7116 by condoning the advocacy of possi-

ble job actions designed to disrupt or slow down the activi-

ties of the Tactical Wing. The district court disagreed

with the examiner, stating that section 7116 applies to

unions as entities, not to individual union members. The

defendants argue on appeal, as they did in the district

court, that the court should review the reasoning of the

agency official who made the final decision regarding dis-

missal, not the reasoning of the examiner. They assert

that the Adjutant General may not have relied on this er-

roneous ground offered by the examiner. Instead, he may

heave discharged plaintiffs for actually advocating job

disruption in violation of 18 U.S.C. § 1918(3)*® and 5 U.S.C.

§ 7116(b) (7}.

5. 5 U.S.C. §7116(b)(7) makes it an unfair labor practice for a

labor organization

(A) to call or participate in, a strike, work steppage,

or slowdown ... or

(B) to condone any activity described in subpara-

graph (A) of this paragraph by failing to take ac-

tion to prevent or stop such activity ....

6. 18 U.S.C. § 1918(3) (1982) provides in pertinent part that

whoever violates 5 U.S.C. § 7311 may not hold a position

in the Government of the United States if he

(3) participates in a strike, or asserts the right to strike,

against the Government of the United States... .

5 U.S.C. § 7311 contains essentially the same language as

18 U.S.C. § 1918.

6la

The district court effectively disposed of this argu-

ment, an argument that is precluded by the National Guard

regulations. The National Guard Bureau Technical Per-

sonnel Manual 700 dictates the Adjutant General’s scope of

review. In cases where a technician has requested a hear-

ing, Regulation 700 5-9(b) provides the Adjutant General

with only two options: (1) to consider the examiner’s

recommendations and render his decision on appeal, Reg.

700 5-9(b) (2), or (2) to take less severe action than recom-

mended, Reg. 700 5-9(b)(3). Regulation 700 5-9(c) fur-

ther states that if the Adjutant Genera! disagrees with the

examiner’s findings and recommendations, the Adjutant

General must include the basis of that disagreement in his

decision. Because Adjutant General Menard accepted the

examiner’s recommendation and his decision stated no

disagreement, this court must agree with the district court

that General Menard adopted the reasoning of the ex-

aminer. Therefore, we must affirm the district court’s

disposition under section 7116.

Accordingly, we will affirm the district court in enter-

ing summary judgment for the plaintiffs, although we do

so for reasons somewhat different than those enunciated

by the district court.’

7. An appellate court may affirm a result reached by the dis-

trict court on reasons that differ so long as the record sup-

ports the judgment. Guthrie v. Lady Jane Collieries, Inc.,

722 F.2d 1141, 1145 n.1 (3d Cir. 1983); Behring Interna-

tional, Inc. v. Imperial Iranian Air Force, 699 F.2d 657, 666

n.7 (3d Cir. 1983).

62a

The district court’s grant of summary judgment for

plaintiffs under the Administrative Procedure Act vacates

their discharge and entitles them to reinstatement, pro-

vided they continue to meet all of the requirements for

their position as technicians. Plaintiff Sheller, however,

has resigned from the National Guard and thus clearly

does not meet all of the requirements for reinstatement;

he is no longer a military member of a National Guard

unit. Plaintiff Johnson has, in the meantime, transferred

his military service to the Pennsylvania Air National

Guard where he now serves. The district court denied

Johnson’s motion for reinstatement on the grounds that

his membership in the Pennsylvania Guard does not satisfy

the requirement of 32 U.S.C. §§702(b) and 709(e)(1).

Johnson argues on appeal that he does meet this require-

ment.

The issue arises because the statute that requires a

civilian technician also to serve as a military guard mem-

ber does not specify to which military unit a technician

must belong. 32 U.S.C. §709(b) provides: ‘‘Except as

prescribed by the Secretary concerned, a technician .. .

shall, while so employed, be a member of the National

Guard....’’ Section 709(e)(1) provides that ‘‘a technician

who is employed in a position in which National Guard

membership is required as a condition of employment and

who is separated from the National Guard . . . shall be

promptly separated from his technician employment by

the adjutant general of the jurisdiction concerned.’’

Johnson argues that the statute does not require that

the technician perform his military and civilian service in

63a

the same unit. He suggests that the legislative history in-

dicates at most that his military position should be ‘‘com-

patible’’ with his civilian technician position, ‘‘not neces-

sarily in the same unit.’’ The legislative history states:

The concept of the full-time civilian technician pro-

gram is that his civilian work will be performed in the

same unit in which he holds a mobilization assign-

ment. In other words, the technician would perform

his civilian work, his training duty, and be mobilized

to active duty in the same unit.

While the foregoing i is the general practice the com-

mittee did learn in some instances technicians hold

military assignments in units different from the units

in which they are employed. It is the view of the com-

mittee, therefore, that technicians who are required to

be military members of the National Guard should

occupy a military position which is compatible with

their civilian technician position. The Department of

Defense has indicated its formai concurrence with this

view.

S. Rep. No. 1446, 90th Cong. 2d Sess. 20 (1968).

Johnson argues that the court should read ‘‘compat-

ible’’ broadly enough to encompass his military service in

the Pennsylvania National Guard and civilian employment

by the New Jersey Guard. Johnson’s interpretation is

contrary to the legislative history. 32 U.S.C. § 104(a) in-

dicates that the term ‘‘unit,’’ used in the Senate report,

refers tc lesser divisions of a single state’s National

Guard. 32 U.S.C. § 104(a) states that ‘‘[e]Jach State...

may fix the location of the units .. . of its National Guard.’’

The Senate report further states:

The concept of the technician program is that the

technicians will serve concurrently in three different

ways: (a) Perform full-time civilian work in their

units; (b) perform military training and duty in their

64a

units; and (c) be available to enter active Federal

service at any time their units are called,

S. Rep. No. 1446, 90th Cong., 2d Sess. 2 (1968). The dis-

trict court, however, read the term ‘‘unit’’ in the Senate

report as referring to lesser divisions ‘‘of a single state’s

National Guard.’’ It was persuaded that a technician whose

military assignment is in one state would not be able to

obtain immediate mobilization if his civilian employment

status were in another state. Therefore, the court con-

cluded that Johnson’s Pennsylvania National Guard serv-

ice is incompatible with his civilian employment.®

The regulatory interpretation of the statute further

bolsters the district court’s conclusion. Technician Per-

sonnel Regulation 302.7-9 states

A National Guard technician must be assigned to

an appropriate military unit ... im the State where

his technician job is located (see 32 U.S.C. 709(b)).

The concept of the National Guard technician pro-

gram is that technicians will be militarily assigned to

the same unit in which his technician job is located.

In other words, a technician will perform his techni-

cian duties, his military training duties, and be mo-

bilized to active duty in the same wmt. (Emphasis

added. )

Quoted in Martelon v. Temple, 747 F.2d 1348, 1351 (10th

Cir. 1984). The court in Martelon addressed this issue and

concluded that a technician must be a member of a ‘‘ mili-

tary unit from which [his] civilian duties can be per-

formed.’’ Id. at 1353.

8. The district court has, however by order dated March 16,

1983, transferred Johnson’s claim for back pay to the United

States Court of Claims.

65a

The district court’s conclusion is consistent with the

Technicians Act and its legislative history. We therefore

must affirm its denial of Johnson’s motion for reinstate-

ment.

IV.

Accordingly, summary judgment for the plaintiffs

under the Administrative Procedure Act and the order of

the district court denying plaintiffs’ motion for reinstate-

ment will be affirmed.

Costs taxed against the Secretary of the Air Force.

A True Copy:

Teste :

Clerk of the United States Court of Appeals

for the Third Circuit.

66a

APPENDIX ©

UNITED STATES DISTRICT COURT

DISTRICT OF NEW JERSEY

Civil No. 82-2578

—. ROY JOHNSON and JOHN J. SHELLER,

Plaintiffs

VERNE ORR, etc., et al.,

Defendants

OPINION

THOMPSON, District Judge

Defendants have moved before the court for reconsid-

eration of portions of the court’s July 2, 1984 opinion and

to certify certain questions to the Third Circuit Court of

Appeals.

This case arises out of an incident in which plaintiffs

Roy Johnson and John Sheller were dismissed from their

positions as civilian technicians of the New Jersey Air

National Guard. The firings occurred as the result of a

union meeting in which plaintiffs participated. Plain-

tiffs filed this action against defendants Major General

Menard, Colonel Murphy and Brigadier General Young in

their individual capacities and against Secretary Orr and

Chief of Staff Gerard in their official capacities. Plain-

tiffs also requested a review of the termination decision

pursuant to the Administrative Procedures Act, 5 U.S.C.

§ 701 et seq.

67a

On March 8, 1983, this court held that due to the hy-

brid state and federal nature of the National Guard, plain-

tiffs could proceed with an action against defendants in

their individual capacities pursuant to 42 U.S.C. $1983

and directly under the Constitution pursuant to Bivens v.

Six Unknown Named Agents of the Federal Bureau of

Narcotics, 403 U.S. 388 (1971). The court also ruled that

it had jurisdiction to review the agency’s decision under

the Administrative Procedures Act. Monetary claims

against the federal government were transferred to the

Court of Claims, however.

In its opinion of December 21, 1983, the court applied

the logic of Bush v. Lucas, 5) U.S.L.W. 4752 (1983) and

dismissed plaintiffs’ Bivens claims. The court refused to

dismiss plaintiffs’ claims under $1985, however. The

court also held that defendant Menard was entitled only to

qualified and not judicial immunity.

The court’s latest opinion in this matter was delivered

on July 2, 1984 upon plaintiffs’ motion and defendants’

cross-motion for summary judgment on the Administrative

Procedures Act claims. The court granted plaintiffs’ mo-

tion holding that the hearing examiner’s finding that the

plaintiffs participated in a union meeting during duty time

was not supported by substantial evidence, and that the

examiner’s conclusion that plaintiffs violated 5 U.S.C.

§ 7116 was contrary to law. The court also found that the

examiner’s decision to terminate plaintiffs for failing to

speak against other employees who had advocated a work

stoppage or slow down violated plaintiffs’ First Amend-

ment rights and 5 U.S.C. § 1702. The court granted plain-

tiff Johnson’s request for reinstatement as relief.

68a

Defendants also moved for summary judgment on

plaintiffs’ 4 1983 claims. The court reiterated its finding

of March 8, 1983 that defendants acted under the color of

state law in firing plaintiffs. The court granted defen-

dants’ motion for summary judgment on plaintiffs’ claim

of denial of due process, but denied defendants’ motion on

plaintiffs’ First Amendment claim. The court also de-

nied defendants’ motion for summary judgment on their

immunity defense.

Defendants now ask the court to reconsider a portion

of its most recent ruling. First, defendants request that

the court make a formal ruling on their motion to strike

supplemental evidence submitted in consideration of the

cross-motions for summary judgment on the Administra-

tive Procedures Act claim. That motion is granted. In re-

viewing the examiner’s decision, the court considered as

factual evidence only defendants’ Exhibit Nos. 5 and 6, the

certified record of the transcript of proceedings before

Colonel] Newman and the certified copies of exhibits pre-

sented to Colonel Newman. Affidavits attached to plain-

tiffs’ briefs were not considered for the purpose of the

Administrative Procedures Act motion.

Defendants also move for reconsideration of the

court’s order of reinstatement. Defendants had not brief-

ed the issue in opposition to plaintiffs’ motion for rein-

statement prior to the court’s original ruling. The court

hereby grants reargument to consider defendants’ argu-

ments.

Plaintiff Roy Johnson is currently a militia member

of the Pennsylvania Air National Guard. He requests re-

instatement of his civilian employment to the New Jersey

69a

Air National Guard. Defendants argue that a technician

must be a member of the National Guard in the State of

his or her employment. Plaintiff argues that he need only

be a member of the National Guard generally.

32 U.S.C. § 709(b) states, ‘‘Except as prescribed by

the Secretary concerned, a technician... shall... be a

member of the National Guard .. .’’ § 709(e) (1) states:

‘*a technician who is employed in a position in which Na-

tional Guard membership is required as a condition of em-

ployment and who is separated from the National Guard

shall be promptly separated from his technician employ-

ment by the adjutant general of the jurisdiction con-

cerned. ’’

For the purposes of the statute, ‘‘National Guard’’

means the Army and the Air National Guard, 32 U.S.C.

§101(3). The Air National Guard means ‘‘that part of

the organized militia of the several states ...’’ which meets

certain federally imposed requirements. I also note that

32 U.S.C. § 709(c) states: ‘‘The Secretary concerned shall

designate the adjutants general referred to in section 314

of this title, to employ and administer the technicians au-

thorized by this section.’’ Under § 314(a) there shall be an

adjutant general in each State.

Defendants read these sections as requiring that a

technician be a member of the Air National Guard of the

state in which he is a technician. They urge the court to

consider the legislative history of 32 U.S.C. § 709, which

states:

‘‘The concept of the full-time civilian technician pro-

gram is that his civilian work will be performed in

the same unit in which he holds a mobilization assign-

70a

ment. In other words, the technician would perform

his civilian work, his training duty, and be mobilized

to active duty in the same unit. While the foregoing

is the general practice the committee did learn in

some instances technicians hold military assignments

in units different from the units in which they are

employed. It is the view of the committee, there-

fore, that technicians who are required to be military

members of the Nationai Guard should occupy a mili-

tary position which is compatible with their civilian

technician position. The Department of Defense has

indicated its informal concurrence with this view.’’

Senate Report, No. 1446, 90th Congress 2nd Session.

Plaintiffs have argued that the legislative history

indicates that a technician may be employed within dif-

ferent units and therefore different states. The term

‘‘unit,’’ however, refers to lesser divisions of a single

state’s National Guard. 32 U.S.C. §104(a) (‘‘Each State

. . may fix the location of the units... of its National

Guard.’’) Furthermore, defendants argued persuasive-

ly in oral argument that a technician’s military assignment

in a state different from that of his civilian assignment

would be ‘‘incompatible.’”’ For example, defendants

stated that a technician whose military assignment is in

one state would not be able to obtain immediate mobiliza-

tion if needed for that state militia if his civilian employ-

ment status was in another state .' Plaintiff has failed to

show that such a problem could be overcome. The court

is persuaded that in light of the legislative history, rein-

1. According to the legislat’-e history, [t]he concept of the

technician program is that the technicians will serve con-

currently in three different ways: (a) Perform full-time ci-

villian work in their units; (b) perform military training and

duty in their units; and (c) be available to enter active Fed-

eral service at any time their units are called.

Tla

statement to plaintiff’s civilian job in New Jersey would

not be an appropriate remedy in this case. Wpon recon-

sideration, plaintiff’s motion will therefore be denied.

Defendants have also made a motion for the court to

certify a rather lengthy question of law to the Third Cir-

cuit. The question essentially asks whether defendants

such as these who fire a technician employed under 32

U.S.C. § 709 have acted under the color of state law for the

purposes of 42 U.S.C. § 1983. This issue was decided in

the affirmative in the court’s March 8, 1983 opinion.

An order may be certified to the Third Circuit under

28 U.S.C. §1292(b) if the district court is of the opinion

that the order ‘‘involves a controlling question of law as to

which there is substantial ground for difference of opinion

and that an immediate appeal from the order may ma-

terially advance the ultimate termination of the litiga-

OO osac”

I certainly agree with defendants that the court’s rul-

ing as to the amenability of defendants to suit under § 1983

is a controlling question of law. If erroneous, it would

constitute reversible error on final appeal, and it is “‘se-

rious to the conduct of litigation both practically and legal-

ly.”’ Katz v. Carte Blanche Corp., 496 F.2d 747, 755 (3rd

Cir. 1974) (en banc).

Although this court is persuaded as to the soundness

of its ruling, I also recognize that the dual federal and

state character of the National Guard provides a difficult

legal dilemma under § 1983. The complex nature of this

question might well give rise to a substantial difference of

opinion.

72a

Plaintiffs, however, argue that an interlocutory ap-

peal would not materially advance this litigation. A trial

would consist primarily if not exclusively of plaintiffs’

First Amendment claims. Defendants’ claim that this

could be a three week trial involving a number of wi

nesses, including the presentation of classified military in

formation as to any disruption plaintiffs’ actions caused.

Plaintiffs argue that the trial will last only a week and

would not involve such complex testimony. In either

event, the trial would demand counsel’s time and expense

in preparation. See Katz, supra, at 756. (Saving time and

expense of litigants is a factor in certifying an interlocu-

tory appeal.) Should this court’s ruling as to defen-

dants’ status under § 1983 be incorrect, it would all but

eliminate the need for a trial. For these reasons, the court

will certify a question of law to the Third Circuit.

I request, however, that counsel seek jointly to de-

vise the wording of the submission encompassing the ques-

tion as to whether defendants’ action were under the color

of state law. I find plaintiffs’ concern as to the wording of

the current submission to be meritorious. Counsel should

be able to agree upon a submission which would succinctly

state the issue.

Defendants also request the entry of a final judgment

under Rule 54(b) of the Federal Rules of Civil Procedure

on plaintiffs’ Administrative Procedures Act claim and

the relief of reinstatement. Plaintiffs do not oppose this

motion. The court will grant entry of a final order as to

these claims, including the denial of plaintiffs’ due pro-

cess claim under the Administrative Procedures Act and

§ 1983.

73a

As a final note, I draw counsel’s attention to the last

line on page 9 and the first line on page 10 of this court’s

July 2 opinion. There is a typographical error in the stat-

ute cite which is split between those two pages. In order

to avoid confusion as to the court’s ruling, I would amend

the opinion so that the dite reads 5 U.S.C. § 7116.’’

I request that in the next five days counsel for de-

fendants prepare a form of order consistent with this opin-

ion which reflect counsel’s agreement as to the question

certified under 28 U.S.C. § 1292(b) as well as the court’s

rulings as to reinstatement, the evidence considered under

the Administrative Procedures Act, and the entry of a fin-

al order.

October 4, 1984.

74a

APPENDIX D

UNITED STATES DISTRICT COURT

DISTRICT OF NEW JERSEY

Appearances:

Civil No. 82-2578

ROY A. JOHNSON, et al.,

Plaintiffs

Vv.

VERNE ORR, ete., et al.,

Defendants

OPINION

THOMPSON, District Judge

GAY SNYDER, ESQUIRE

American Federation of

Government Employees

133 Church Street

New Brunswick, N.J. 08901

THOMAS P. FOY, ESQUIRE

Hartman, Schlesinger, Schlosser

and Faxon

129 High Street

Mount Holly, N.J. 08060

MARK ROTH, ESQUIRE

Action General Counsel

A.F.G.E.

1325 Massachusetts Ave., N.W.

Washington, D.C. 20005

(Attorneys for Plaintiff)

MARY CATHERINE CUFF

Assistant U.S. Attorney

Chief, Civil Division

970 Broad Street

Newark, New Jersey 07102

75a

BETTE E. UHRMACHER

Assistant U.S. Attorney

402 E. State St., Room 265

Trenton, New Jersey 08608

DAVID W. KERBER, MAJOR, USAF

General Litigation Division

Depart of the Judge Advocate General

Washington, D.C. 20324

DOROTHY DONNELLY

Deputy Attorney General

Hughes Justice Complex

CN 112

Trenton, New Jersey 08625

(Attorneys for Defendants)

This matter comes before the court on plaintiffs’ mo-

tion for partial summary judgment against the individual

defendants: Major General Wilfred Menard, Colonel John

Murphy, Brigadier General Charles Young, and Major

Billy MeDaniels. Plaintiffs have brough their action un-

der 42 U.S.C. § 1983 for violations of their First and Four-

teenth Amendment rights...

The court heard oral argument on this motion on De-

cember 3, 1984, and reserved decision at counsel’s request

pending additional briefing as to defendants’ qualified im-

munity defense. Plaintiffs have also moved for attorneys’

fees pursuant to the Equal Access to Justice Act, 28 U.S.C.

§ 2412, and the Back Pay Act, 5 U.S.C. § 5596. The court

has resolved the attorneys’ fees issue without oral argu-

ment pursuant to FED. R. CIV. P. 78.

Plaintiffs’ complaint stems from their dismissal from

employment as civilian technicians of the New Jersey Air

National Guard. They allege that they were dismissed

in retaliation for the legitimate exercise of their First

76a

Amendment rights. They also allege that they were dis-

missed in violation of the Civil Service Reform Act.

On July 2, 1984, plaintiffs moved for summary judg-

ment on their claim for review under the Administrative

Procedures Act [‘‘APA’’]. Defendants made a cross-

motion for summary judgment under the APA and 42

U.S.C. § 1983. In ruling on the APA claim, the court re-

viewed the administrative record produced at a hearing

before Examiner Russell Newman. The evidence focused

on two meetings held on August 17 and 26, 1981, at which

ten to twelve employees met to discuss a change in their

work hours. Plaintiffs, who were officials of Local 371

of the National Army and Air Technicians, American Fed-

eration of Government Employees, attended both meet-

ings. There was some evidence that a possible strike or

job action was discussed. None took place.

After the hearing, Examiner Newman found that

plaintiffs had conducted union business on official time in

violation of 5 U.S.C. § 7131 of the Civil Service Reform

Act. Upon review, the court found that the Examiner’s

conclusion failed to address the critical factual issue of

whether plaintiffs were on duty status. The court also set

aside the Examiner’s finding that plaintiffs violated 5

U.S.C. § 7116, since § 7116 is addressed to a labor union’s

practices and not an employee’s actions. Finally, the court

reversed the Examiner’s finding that plaintiffs were at

fault because as union officials, they should have attempted

to stop other employees from discussing a job action. The

court found that the Examiner’s ruling on this issue vio-

lated plaintiffs’ First Amendment rights and violated 5

U.S.C. § 7102 since it put a higher burden on union officials

—

77a

than union members. Therefore, the court granted plain-

tiffs’ motion for summary judgment under the APA. In

an opinion dated October 4, 1984, the court clarified that its

ruling on the cross-motions for summary judgment on the

APA claims Was based solely on the administrative record.

Plaintiffs) now move for summary judgment against

the individual defendants on their § 1983 claim. They ar-

gue that all facts found by the court as a result of the cross-

motions under the APA should be taken as conclusive, and

that those facts prove that defendants violated plaintiffs’

First Amendment rights.

Plaintiffs are correct that the court has found that

the Examiner’s decision which was adopted ultimately by

Major General Menard was inconsistent with the First

Amendment. That decision, however, was based solely on

the record before Major General Menard. Defendants ar-

gue that there are other facts which were not contained in

the administrative record which would exonerate defend-

ants as individuals. To put it simply, defendants argue

that they should be given an opportunity at trial to estab-

lish that their real reasons for firing plaintiffs were not

those reasons established in the administrative record, or

that the reasons established at the hearing were incom-

plete. Specifically, defendants propose to introduce con-

fidential information regarding a military mission that

plaintiffs threatened to disrupt which would have justi-

fied the dismissals.

The facts described by defendants would be material

in light of Pickering v. Board o

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