Amicus Curiae Brief — McDaniel v. Johnson

a Supreme Court, US.

ta FILED

No. 85-2127 JUL 17 008

JOSEPH F. SPANIOL, JR.

TLERK

In The

Supreme Court of the United States

October Term, 1985

4

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LIEUTENANT COLONEL BILLY MeDANTEL,

Support Personnel Management Officer,

New Jersey Air National Guard,

Petitioner,

ROY JOHNSON and JOHN J. SHELLER,

Respondents.

Ly

Ww

BRIEF OF AMICUS CURIAE ADJUTANTS

GENERAL ASSOCIATION OF THE

UNITED STATES

ty

Vv

WituuM S. Greenserc

Counsel of Record

Greenserc & Prior

Attorneys for Amicus Curiae

Adjutants General Association

of the United States

CN 5320

301 Carnegie Center

Princeton, New Jersey 08540

(609) 987-1200

James F. ScHweErIn

On the Brief

COCKLE LAW BRIEF PRINTING CO., (800) 228-8845 (tone) 75

or call collect (402) 342-2831

a A os

TABLE OF CONTENTS

Page

TABLE OF CASES AND OTHER AUTHORITIES © ii

INTEREST OF THE AMICUS CURIAE W001

SUMMARY OF ARGUMENT

ARGU MENT—

POINT ONE

ALLOWING A SUIT FOR DAMAGES BY

MILITARY PERSONNEL AGAINST A SU-

PERIOR OFFICER UNDER 42 U.S.C. § 1983

WOULD DAMAGE THE NECESSARY

UNIQUE RELATIONSHIP BETWEEN MILI-

TARY PERSONNEL AND THEIR OFFICERS

AND SO SUCH CLAIMS MUST BE BARRED. 4

POINT TWO

THE STATUTE PROVIDING AUTHORITY

FOR THE ACTION TAKEN DOES SO AS A

MATTER OF FEDERAL LAW SO THAT THE

ADJUTANT GENERAL DID NOT ACT UN-

DER COLOR OF STATE LAW, AND IN ANY

EVENT THE STATUTE PREEMPTS THIS

CAUSE OF ACTION ; 18

bo) | ke cee an han 19

TABLE OF APPENDIX

DECISION OF THE HONORABLE ANNE E.

THOMPSON FILED DECEMBER 22, 1983 App. 1

il

TABLE OF CASES

AND OTHER AUTHORITIES

Page(s)

Cases

Alvarez v. Wilson, 600 F. Supp. 706 (N.D. Ul. 1985) ..... 10

American Federation of Government Employees

v. Federal Labor Relations Authority, 730 F.2d

1534 (D.C. Cir. 1984) ——___.. 12, 13

Askew v. Bloemker, 548 F.2d 673 (7th Cir. 1976) 18

Bivens v. Six Unknown Named Agents of the Fed-

eral Bureau of Narcotics, 403 U.S. 388, 91 S. Ct.

$0, 9 L.Ed3d GS (1971) ee ee

Brown v. United States, 739 F.2d 362 (8th Cir.

1984), cert. den. — U.S. —, 105 S.Ct. 3524 (1985) 8, 9, 16

Bush v. Lucas, 461 U.S. 367, 103 S.Ct. 2404, 76

L.Ed.2d 648 (1983) . heel eS

California National Guard v. Federal Labor

Relations Authority, 697 F.2d 874 (9th Cir. 1983) ..... 13

Carlson v. Greene, 446 U.S. 14, 100 S.Ct. 1468,

G4 1.3434 15 (2068) ccc 2

Chappell v. Wallace, 462 U.S. 296, 103 S.Ct. 2362,

76 L.F.d.2d 586 (1983) occcncntdy 4, 5, 7, 8, 9, 10, 16, 17

Ellis v. Blum, 643 F.2d 68 (2d Cir. 1980) occ essensoe 18

Feres v. United States, 340 U.S. 135, 71 S.Ct. 153,

9% L.Ed.2a 152 (1950) ..._.________.3, 5, 9, 10, 15, 16, 17

Gaspard v. United States, 713 F.2d 1097 (Sth Cir.

1983), cert. den. — U.S. —, 104 S.Ct. 2354, 80

L.E.d.2d 826 (1984) .. ERAN No cr a ae

TABLE OF CASES

AND OTHER AUTHORITIES—Continued

Page(s)

Gilligan v. Morgan, 413 U.S. 1, 93 S.Ct. 2440, 37

Nee ss cccssiennietennseennneemesaeonaenunin 6,7

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

1981) (en banc), cert. den. 456 U.S. 972, 102

S.Ct. 2234, 72 L.Ed.2d 845 (1982) . a Pee

Johnson v. Orr, 780 F.2d 386, 389, n.6 (3d Cir.

1986) SAL NO eee eee 2

Johnson v. Orr, 776 F.2d 75 (3d Cir. 1985) 0. 16

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

1984) cert. den. — U.S. —, 105 S.Ct. 2675 (19835) ..... 7

Miller v. United States, 643 F.2d 481 (8th Cir. 1981) 15, 16

Mindes v. Seaman, 453 F.2d 197 (5th Cir. 1971) —..14, 15

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

cert. den. 466 U.S. 956, 104 8.Ct. 2162 eee 9

Montana Air National Guard v. Federal Labor

Relations S scnatdandll 730 F.2d 577 (9th Cir.

1984) . oe ee

NeSmith v. Fulton, 615 F.2d 196 (5th Cir. 1980) aadies 14

New Jersey Air National Guard v. Federal Labor

Relations Authority, 677 F.2d 276, 286 (3d Cir.

1982), cert. den. 459 U.S. 988, 103 S.Ct. 343, 74

L.E-d.2d at 384 . ae Cee aT

United Parcel Service Inc. v. Mitchell, 451 U.S.

56, 60 n.2, 101 S.Ct. 1559, 67 L.Ed.2d 732 (1981) ....... 2

United States v. Brown, 348 U.S. 110, 112, 75 S.Ct.

net, 348, 68 2.04.34 199 (1964) —____ EE... 5

United States v. Muniz, 374 U.S. 150, 162, 83 S.Ct.

1850, 1858, 10 D.Fd.2d S05 (19GB) nee eee eeneeennee 5

TABLE OF CASES

iv

AND OTHER AUTHORITIES—Continued

32 U.S.C.

32 U.S.C.

32 U.S.C.

32 U.S.C.

32 U.S.C.

32 U.S.C.

42 U.S.C.

42 U.S.C.

Page(s)

OtHeR AUTHORITIES

§ 102 11

§ 709 4,11,18

§ 709(b) 11

§ 709(e) 12, 14

§ 709(e) (4) 13

§ 709(g) (1) 16

§ 1983 1, 3, 4, 7, 8, 18, 19

SE eaten eens 4,7, 9,10

ee RIE neuen are 9

42 U.S.C.

INTEREST OF THE AMICUS CURIAE

This case presents an issue of general importance for

the National Guard throughout the United States, and in

particular for the Adjutants General of the National Guard

in the various states as the commanding officers. The ami-

cus curiae, the Adjutants General Association of the United

States (hereafter AGAUS) is the organization made up of

all of the various state Adjutants General, each and every

one of whom will be vitally affected by the outcome of this

case. What has been advanced is a cause of action for dam-

ages against the Adjutant General of New Jersey along

with other ranking officers of the New Jersey Air National

Guard, relating to the termination of employment of two

federal National Guard Technicians. As a separate part of

this case, in a ruling by the Third Circuit which is not at

issue before this Court on the petition for certiorari, the

propriety of that dismissal was adjudicated. This portion

of the litigation now presented to the Supreme Court deals

only with the additional remedy of damages for alleged vio-

lation of federally protected rights pursuant to 42 U.S.C.

§ 1983. It is the right of National Guard Technicians, who

by law are all part of National Guard military units, to sue

their superior officers for money damages that is of grave

concern to all Adjutants General in the performance of

their military duties.

Aside from the clearly legitimate interest in the out-

come of this matter, the overriding reason why leave should

be granted for the AGAUS to appear as amicus curiae is

that the prime policy argument against allowing this cause

of action, while raised at the District Court level,' was not

1See the decision of District Judge Anne Thompson filed

on December 22, 1983, and appended to this brief.

1

part of the interlocutory question certified to the Third

Circuit which court, accordingly, did not reach it. Yet it is

this issue, whether the military nature of an Adjutant Gen-

eral’s decision to terminate National Guard Technician em-

ployment should bar a civil rights action for damages, that

would certainly be dispositve of this case and ought to be |

considered by this Court now. As the petition for certiorari

has not included this as a question presented, although ad-

dressing it in Point II, this Court is respectfully urged to

allow the AGAUS to appear as amicus in order to advance

the argument, a substantial one which has met favor in

various circuit courts of appeal as will be cited infra in the

argument portion of this submission.

The AGAUS recognizes that this Court has at times

in the past expressed that it will not consider arguments

raised only by an amicus and not by the petitioner. United

Parcel Service Inc. v. Mitchell, 451 U.S. 56, 60 n.2, 101 S.

Ct. 1559, 67 L.£d.2d 732 (1981). However, the Court has

also stated that it is not barred from considering issues

which are not part of the petition for certiorari. Carlson v.

Greene, 446 U.S. 14, 100 8S. Ct. 1468, 64 L.Ad.2d 15 (1980).

Here, the argument advanced by AGAUS was made to the

District Judge. For reasons not known to AGAUS, that

issue was not certified to the Third Circuit although raised

by AGAUS as amicus there. The Third Circuit declined to

address it as noted in its opinion. Johnson v, Orr, 780 F.2d

386, 389, n.6 (3d Cir. 1986). Because this is an issue involv-

ing the United States military and the ability of key

officers, the Adjutants General of the National Guard

throughout the country, to perform their duties, this is cer-

tainly a case in which the Court ought to exercise its ability

to consider an issue going beyond the petition for certiorari.

————————

The AGAUS fully supports the arguments put forth in

the petition for certiorari and certainly should be consid-

ered to join in those arguments. Because the points raised

by petitioner have been more than adequately addressed,

AGAUS will not seek to present any substantial further

discussion. Those arguments are completely meritorious

as recognized by Judge Rosenn in his dissent in the Third

Circuit.

Both counsel for the petitioner and for respondents

have consented to AGAUS filing an amicus brief, and writ-

ten consent is submitted herewith.

°

SUMMARY OF ARGUMENT

This Court in decisions beginning with Feres v. United

States, 340 U.S. 135, 71 S. Ct. 153, 95 L.Ed. 152 (1950) and

running through Chappell v. Wallace, 462 U.S. 296, 103 S.

Ct, 2362, 76 L.Ed.2d 586 (1983), has, as a matter of policy,

barred actions for damages by military personnel against

their superior officers. The cause of action asserted here

for damages under 42 U.S.C. § 1983 against the Adjutant

General of New Jersey and other ranking officers by Na-

tional Guard Technicians, who by law are also required to

be active members of military units, runs afoul of the Feres

doctrine as applied in Chappell and so must be prohibited.

For the reasons expressed by Judge Rosenn in his

Third Cireuit dissent in this case, appearing at 780 F'.2d

395, et seq., the action of the Adjutant General in dismiss-

ing the two plaintiffs from their technician employment was

not done ‘‘under color of state law’’ as required by Section

4

1983, and the National Guard Technician Act of 1968, 32

U.S.C. § 709, provides a complete statutory remedy which

was intended to be exclusive and preempts the right to bring

an action under Section 1983.

o

ARGUMENT

POINT ONE

ALLOWING A SUIT FOR DAMAGES BY MILI-

TARY PERSONNEL AGAINST A SUPERIOR

OFFICER UNDER 42 U.S.C. §1983 WOULD

DAMAGE THE NECESSARY UNIQUE RELA-

TIONSHIP BETWEEN MILITARY PERSON-

NEL AND THEIR OFFICERS AND SO SUCH

CLAIMS MUST BE BARRED.

This Court has long recognized that there are special

relationships between military personnel and their superior

officers that should not be tested in the courts. To be con-

sistent with past opinions upholding that rationale, the

cause of action asserted here for damages under 42 U.S.C.

§ 1983 must, as a matter of public policy, be prohibited.

The case whose extension to the facts here must gov-

ern is Chappell v. Wallace, supra. In that case enlisted

men aboard a Navy vessel brought an action seeking dam-

ages against their commanding officer, four lieutenants

and some noncommissioned officers. The claim raised was

that these enlisted men received unequa! treatment on ac-

count of their race. Causes cf action were asserted under

42 U.S.C. § 1985, and also under the precedent of Bivens

v. Six Unknown Named Agents of the Federal Bureau of

Narcotics, 403 U.S. 388, 91 S. Ct. 99, 29 L.Ed.2d 619 (1971).

This Court referred to the fact that in the Bivens de-

cision, recognition of a cause of action against federal

officials who may have violated an individual’s consti-

tutional rights was subject to special factors which might

make the remedy inappropriate. In the military context,

the special factors present were those discussed by this

Court in Feres v. United States, supra. In Feres it was

held that the Federal Tort Claims Act did not provide a

remedy to military personnel for injuries suffered in serv-

ice which might otherwise be actionable if civilian in nature.

The basis for that decision was the special relationship

between soldiers and their superior officers, and the im-

proper effect on the maintenance of discipline that such

suit would cause if allowed to proceed. Chappell, 462 U.S.

at 298-299, 103 S. Ct. at 2365 citing to United States v.

Muniz, 374 U.S. 150, 162, 83 S. Ct. 1850, 1858, 10 L.Fd.2d

805 (1963) and United States v. Brown, 348 U.S. 110, 112,

75 S. Ct. 141, 143, 99 L.Ad. 139 (1954).

As stated in Chappell:

The need for special regulations in relation to military

discipline, and the consequent need and justification

for a special and exclusive system of military justice,

is too obvious to require extensive discussion; no mili-

tary organization can function without strict discipline

and regulation that would be unacceptable in a ecivi'ian

setting. In the civilian life of a democracy many ecom-

mand few; in the military, however, this is reversed,

for military necessity makes demands on its personnel

“without counterpart in civilian life.” The inescapable

demands of military discipline and obedience to orders

‘cannot be taught on battlefields; the habit of immed-

iate compliance with military procedures and orders

must be virtually reflex with no time for debate or re-

flection. The Court has often noted “the peculiar and

special relationship of the soldier to his superiors,”

6

and has acknowledged that “the rights of men in the

armed forces must perforce be conditioned to meet

certain overriding demands of discipline and duty .. .”

This becomes imperative in combat, but conduct in

combat inevitably reflects the training that precedes

combat; for that reason, centuries of experience has

developed a hierarchical structure of discipline and

obedience to command, unique in its application to the

military establishment and wholly different from ci-

vilian patterns. Civilian courts must, at the very least,

hesitate long before entertaining a suit which asks the

court to tamper with the established relationship be-

tween enlisted military personnel and their superior

officers; that relationship is at the heart of the ne-

cessarily unique structure of the military establish-

ment. 462 U.S. at 300, 103 S. Ct. at 2365-66 (citations

omitted).

The Court also noted that its view of the proper re-

lationship between the courts and the military extended to

the National Guard. In Gilligan v. Morgan, 413 U.S. 1,

93 8. Ct. 2440, 37 L.Ed.2d 407 (1973) suit was brought ask-

ing for review of the pattern of training, weaponry and

orders of a state National Guard. Therein it was stated:

It would be difficult to think of a clearer example of

the type of governmental action that was intended by

the Constitution to be left to the political branches di-

rectly responsible—as the Judicial Branch is not—to

the electoral process. Moreover, it is difficult to con-

ceive of an area of governmental activity in which the

courts have less competence. The complex, subtle, and

professional decisions as to the composition, training,

equiping, and contro] of a military force are essentially

professional military judgments, subject always to

civilian control of the Legislative and Executive

Branches. The ultimate responsibility for these deci-

sions is appropriately vested in branches of the gov-

ernment which are periodically subject to electoral ae-

countability.

Guligan, 413 U.S. at 10, °3 8. Ct. at 2446 (emphasis in

original), as quoted in Chappell, 462 U.S. at 302, 103

S. Ct. at 2366-67.

Based on the special status of the military and the fact

that congress had otherwise provided a specific means for

military personnel to have grievances reviewed, this Court

concluded that a suit to recover damages for alleged con

stitutional violations by a superior officer could not be

maintained. 462 U.S. at 304, 103 S. Ct. at 2368.

The special nature of military life, the need for un-

hesitating and decisive action by military officers and

equally disciplined responses by enlisted personnel,

would be undermined by a judicially created remecy

exposing officers to personal liability at the hands of

those they are charged to command.

462 U.S. at 304, 103 8. Ct. at 2367.

The decision in Chappell was limited to the cause of

action under Bivens. The issues raised by the claim under

42 U.S.C. £1985 were not reached because not addressed

by the Court of Appeals nor adequately argued before this

Court. 462 U.S. at 305, n.3, 103 S. Ct. at 2368.

In Bivens, it was acknowledged that the cause of ae-

tion created was the equivalent of the right to sue an in-

dividual acting under color of state law pursuant to 42

U.S.C. $1983. 403 U.S. at 391, n.4, 91 S. Ct. at 2002. It

would therefore follow that for the same reasons expressed

in Chappell, an action under 42 U.S.C. § 1983 by military

personnel against superior officers should be barred.

That is exactly the result reached in Martelon v. Temple,

747 F.2d 1348 (10th Cir. 1984), cert. den.—U.S.—. 105 S. Ct.

2675 (1985). The plaintiff in Martelon was a member of

the Colorado National Guard who was also employed as a

civilian administrative supply technician. After a military

transfer, there was no comparable civilian activity avail-

able in his new unit and his civilian job was terminated be-

cause the new military assignment was incompatible with

continued technician employment. 747 F.2d at 1349. The

action brought sought relief from termination as a Guard

Technician. The relevant cause of action asserted was for

failure to provide a hearing before terminating technician

employment which was brought pursuant to 42 U.S.C.

§ 1983.

Citing to Chappell and Gilligan, the Tenth Cireuit

found that there could be no liability under Section 1983

for alleged transgressions by superior officers against mil-

itary personnel. Id. at 1351.

In other cases brought by military personnel against

superior officers under various provisions of the Civil

Rights Acts, the courts have had little difficulty in holding

that dismissal was the required result. Brown v. United

States, 739 F.2d 362 (8th Cir. 1984), cert. den.—U.S.—,

105 S. Ct. 3524 (1985), concerned an incident in which a

black National Guardsman was subject to a racially moti-

vated mock lynching. An action was brought against the

participants in the lynching incident as well as against the

United States and superior officers for failing to prevent

it and failing to adequately investigate after the fact.

While the Eighth Circuit concluded that the action against

the participants, who were not superior officers, could go

forward, summary judgment was ordered as to the Unite’

States and all other defendants. Relying on eres and

Chappell, the Eighth Circuit found that the eres doctrine

can be a bar to a Section 1983 suit where it is determined

i)

that circumstances so warrant. The key factor taken into

account by the court in Brown was, again relying on Feres,

the effect on military discipline.

While prosecution of a cause of action against those

who participated in the hanging incident was found not to

damage military discipline, that was not so for failure to

prevent the hanging incident and failure to perform a pro-

per investigation. The claim that there was negligence in

failing to prevent the incident was found to directly call in-

to question disciplinary decisions by superior officers.

739 F.2d at 369. The same held true of the alleged failure

to perform a proper investigation. J/bid.

Yet another court applied Chappell in a civil rights

context to bar a cause of action in Mollnow v. Carlton, 716

F.2d 627 (9th Cir. 1983), cert. den. 465 U.S. 1100, 104 8. Ct.

1595, reh. den. 466 U.S. 954, 104 S. Ct. 2162. Mollnow al-

leged that a conspiracy existed to remove him from the Air

Force Reserve because of his superior officers’ embar-

rassment over their having ignored his warnings about

certain unsafe conditions. Along with a Bivens claim, he

asserted causes of action under 42 U.S.C. §§ 1985 and 1986.

Recognizing that Chappell directly barred the Pivens

claim, the court turned to what had not been reached in

Chappell, a claim under Section 1985. Because the claim

arose under Section 1985(a), a statute granting a remedy

for injured federal officers, the general limitations ex-

pressed in Bivens for allowing a claim regarding viola-

tion of constitutional rights were held inapplicable. 716

F.2d at 631. Nevertheless the rationale of Chappell and

Feres was still utilized.

After noting that Feres relies primarily on the main-

tenance of military discipline, the court in Mollnow stated:

10

A §1985(1) action would strike directly at that special

military relationship, perhaps even more so than an ac-

tion for negligence. In a negligence action, a spon-

taneous event has occurred; someone has suffered an

accident and another is at fault. Under § 1985(1),

however, an action would lie even for calculated de-

cisions made in the judgment and discretion of a su-

perior military officer, so long as the subordinate al-

leged the superior had interfered with his military

“duties.” Then a civil jury would be empanelled to

inquiry into the nature of this uniquely military mat-

ter, and damages could be assessed against his su-

periors for the exercise of their judgment and discre-

tion. Such a result would offend the principles an-

nounced in Chappell,...

716 F.2d at 631 (emphasis in original)

Any challenge to military orders was found best left

to the internal system of military justice. If challenges to

orders were allowed to be brought in the civil courts,

“(T]he military could not function under those conditions.”

716 F.2d at 632.7

The same result was reached as to a claim under See-

tion 1985(3) in Alvarez v. Wilson, 600 F. Supp. 706 (N.D.

Ill. 1985). See also Gaspard v. United States, 713 F.2d

1097 (5th Cir. 1983), cert. den.—U.S.—, 104 S. Ct. 2354,

80 L.Ed.2d 826 (1984) and Jaffee v. United States, 663

F.2d 1226 (3d Cir. 1981) (en banc), cert. den. 456 U.S. 972,

102 S. Ct. 2234, 72 L.Ed.2d 845 (1982).

The above line of cases leaves no room for any con-

clusion other than that the cause of action asserted here

2The Section 1985 claim, having been dismissed, and be-

cause relief under Section 1986 depends on a claim under Sec-

tion 1985, the Section 1986 cause of action was also dismissed.

716 F.2d at 632.

il

under Section 1983 may not be asserted absent a showing

that the particular decision attacked would not have an

effect on necessary military discipline. In rejecting this

argument, the District Court did not go beyond the fact

that the termination of employment challenged related to

the plaintiffs’ status as civilian technicians. However, this

logic was overly simplistic and ignored the realities of the

relationship of the work done by technicians to the military

mission of the National Guard. The decision to terminate

the employment of these plaintiffs was due to the threat

their actions posed to completing the military mission of the

Guard and so fits precisely into the Feres - Chappell line

of cases.

The overall mission of the National Guard is stated in

32 U.S.C. § 102:

In accordance with the traditional military policy of the

United States, it is essential that the strength and or-

ganization of the Army National Guard and the Air

National Guard as an integral part of the first line de-

fense of the United States be maintained and assured

at all times...

When the National Guard Technician Act of 1968 was

passed, 32 U.S.C. § 709, it created a dual status for those

employed. While on the one hand they are employees of

the United States Army and the United States Air Force

performing technician functions, at the same time in order

to be eligible to be a technician, it is necessary that one be a

member of the National Guard and hold the appropriate

military grade specified. 32 U.S.C. §709(b). The entire

legislative history of this statute makes it evident that tech-

nicians are not regular civilian employees, but are instead

military men whose conduct must be judged according to

military rather than civilian standards.

12

As noted in American Federation of Government Em-

ployees v. Federal Labor Relations Authority, 730 F.2d

1534 (D.C. Cir. 1984) while on its face the Technician Act

may have appeared to deal only with retirement benefits, in

fact:

enactment of the Technician Act was essential to

assure that the military mission of the Guard would be

carried out effectively and efficiently. This intent is

evident in the provisions which provide for the continu-

ance of the authority of the state adjutants general to

exercise command authority over technicians—as they

do over other guardsmen.

730 F.2d at 1544 (emphasis in original)

The Third Circuit has also seen fit to emphasize the

military nature of the Guard in the context of employment

of technicians under this statute. Rejecting a claim by the

labor union in that ease, the same one which represents the

plaintiffs here, the Third Circuit held that the general bar-

gaining provisions of the Federal Labor Relations Act did

not displace Section 709(e) of the Technician Act. In doing

so the court held:

Congress deemed § 709(e) to be of considerable import-

ance to the proper functioning of the National Guard

as a military unit...

New Jersey Air National Guard v. FLRA, 677 F.2d 276,

286 (3d Cir. 1982), cert. den. 459 U.S. 988, 103 S. Ct.

343, 74 L.Ed.2d at 384.

The Third Circuit went on to refer to the ‘‘needs of military

discipline over Guard Technicians and their dual status as

‘civilian and military personnel ...’’ /bid. The Ninth Cir-

cuit has approvingly cited to the New Jersey Atr National

Guard case. Montana Air National Guard v. Federal Labor

13

Relations Authority, 730 F.2d 577 (9th Cir. 1984) and Cali-

fornia National Guard v. Federal Labor Relations Author-

ity, 697 F.2d 874 (9th Cir. 1983).

The particular subject matter of the American Federa-

tion of Government Employees case is especially revealing.

The union there sought to negotiate a provision requiring

that when a reduction in force, authorized by 32 U.S.C.

§ 709(e) (4), takes place, technicians would be ranked only

according to a technician appraisal score without regard to

military performance. The District of Columbia Circuit re-

jected the notion that such a proposal was a required snb-

ject of negotiations.

In reaching its conclusion, the court thoroughly re-

viewed the legislative history of the National Guard Tech-

nicians Act of 1968. It noted that “it was necessary to care-

fully craft the legislation so as not to compromise the essen-

tial military requirements of state Guard service.’’ 730

F.2d at 1543. After quoting the remarks of various senators

and congressmen, the court opined that:

... the purpose of the technicians was to insure that

the military mission of the National Guard would be

earried out effectively and efficiently. This ‘‘funda-

mental purpose,’’ as Senator McIntyre put it, renders

easy the search for the Act’s ‘‘mandate.’’ That man-

date is to preserve the Guard’s military effectiveness

and efficiency, which is accomplished by the Act insur-

ing the Guard’s ability to recruit and maintain tech-

nicians qualified for both their civilian and military

roles and preserving the command authority of the

state adjutants general in personnel actions in general

and reductions-in-force in particular.

730 F.2d at 1545-1546 (emphasis in original)

Because limiting reduction in force ratings to those on

the technician side would damage the military purpose of

14

the Guard, the court held that the clause the union sought

to put in its contract would be ‘‘incompatible with sound de-

fense planning of our military preparedness ...’’ Id. at

1546.

The issue in the New Jersey Air Nationai Guard case

was whether the Guard must negotiate procedures for dis-

missal for cause and other matters as to which authority is

granted Adjutants General pursuant to 32 U.S.C. § 709(e).

Were Adjutants General required to submit dismissals and

other disciplinary actions to a grievance procedure, the con-

gressional intent of allowing the military command struc-

ture to function in such situations as evidenced by Section

709(e) would be damaged, and so the Third Circuit held that

the general provisions of the Labor-Managment Relations

Chapter of the Civil Service Reform Act of 1978 regarding

collective negotiations for federal employees must give way

to the specific grant of authority to Adjutants General to

dismiss technicians.

That dismissal of a technician even where allegedly

based on arbitrary and capricious hostility of superior of-

ficers is sufficiently military in nature to be beyond review

by civilian courts was expressly stated by the Fifth Circuit

in NeSmith v. Fulton, 615 F.2d 196 (5th Cir. 1980). While

finding that on all other relevant grounds, the Fifth Circuit

test for whether courts would deal with military issues set

forth in Mindes v. Seaman, 453 F.2d 197 (5th Cir. 1971) had

been met, the court in NeSmith still found dismissal man-

dated.

In contrast, consideration of the extent to which the

exercise of military expertise or discretion is involved

in the decision to discharge NeSmith from a civilian

technician post counsels against according judicial re-

15

view of his claim. The same great degree of military

discretion is entailed in deciding whether to remove an

employee ‘‘for cause”’ as is involved in such matters as

‘*promotions or orders directly related to specific mili-

tary functions’’ that Mindes expressly found were im-

proper subjects for judicial review.

615 F.2d at 203.

The breadth of the doctrine barring damages against

the military is readily apparent from the en bane decision

of the Eighth Circuit in Miller v. United States, 643 F.2d

481 (8th Cir. 1981). The plaintiff in that case was an Army

private who on his off-duty time was working in a civilian

job for a subcontractor erecting scaffolds on government

owned family living quarters. In the course of performing

that civilian work, Miller was electrocuted. The District

Court dismissed the action on the basis of Feres but was

reversed by a panel of the Eighth Circuit. On rehearing en

banc, the Eighth Circuit reinstated the dismissal.

In concluding that Feres applied to bar Miller’s action,

the court found that the work he performed, although being

done for a civilian employer, “was related to the military

mission of the base, since it involved construction of resi-

dential quarters to be owned by the Government and located

on the base.’’ 643 F.2d at 494. The key was that Miller was

at all times subject to recall for military duty had his super-

ior officer so chosen, and the ‘‘immediacy of his peculiar

and special relationship to his military superiors had not

been severed by any such formality as a furlough, leave, or

pass.’’ Ibid. Even more telling was the following:

Finally, if this case were permitted to go to trial, plain-

tiffs would seek to establish that the United States,

presumably acting through the commanding officer of

16

the post at which Private Miller was stationed, was

negligent in, among other respects, failing to de-ener-

gize the electric line with which the scaffolding being

erected by Miller came into contact. Thus, the conduct

of Miller’s military superior would be called in question

in the civil courts, a circumstance that might well have

the destructive effect on military authority and dis-

cipline mentioned by the Supreme Court in Brown. In

any event, the relationship between the facts of this

case and possible impairment of military discipline is

at least as great as it was in Feres itself. [bid.

If the facts of Miller present a threat to military dis-

cipline, then surely the facts here present a far greater one.

There is no dispute that this case arose out of objections by

technicians to a proposed change in their work hours for

one particular day. As a result of these objections, a meet-

ing was held at which the subject of compliance with the

orders for the new schedule was discussed. While the

parties have disputed whether or not the plaintiffs advo-

cated refusing to report or other means of work slowdown,

for purposes of deciding the issue before this Court, resolu-

tion of that dispute is not necessary. The mere fact that the

subject matter involved compliance with orders from super-

ior officers as to performing work should be enough to make

it clear that this case falls within the Freres and Chappell

precedent.’

That the subject matter of scheduling for technicians

at Air Defense facilities is directly related to military

preparedness is irrefutably established by the statute. 32

U.S.C. § 709(g)(1) provides:

3For discussion of the facts, see the initial Third Circuit

opinion im this case, 776 F.2d 75, 77-78 (3d Cir. 1985), at pages

48a-51a of the appendix to the Petition for Certiorari.

17

Notwithstanding Sections 5544(a) and 6101(a) of Title

5 or any other provision of law, the Secretary con-

cerned may, in the case of technicians assigned to

perform operational duties at air defense sites—

(A) prescribe the hours of duty;

(B) fix the rate of basic compensation; and

(C) fix the rates of additional compensation;

to reflect unusual tours of duty, irregular additional

duty, and work on days that are ordinarily nonwork-

days...

This is an unequivocal grant of authority to require that

technicians work at times when they would not ordinarily

be working when necessary for performance of their fune-

tions.

At the time of the relevant events. the work being

done by the technicians related to a national security di-

rective mandating that the Tactical Fighter Wing to which

these technicians were assigned be combat ready by Ge-

tober 1, 1981. Any disruption of performance of work as

a protest against the hours assigned would have placed

compliance with that directive in jeopardy. If that does

not implicate decisions of superior officers which are part

and parcel of the required system of discipline reasonably

related to assuring the federal military purpose of the

Guard, then it is hard to see what would be. If this Court

wishes to maintain the policies underlying Feres and

Chappell, then it is vital that the kind of action for dam-

ages at issue here be prohibited.‘

‘The petitioner does make this argument in Point II of the

Petition for Certiorari.

18

POINT TWO

THE STATUTE PROVIDING AUTHORITY

FOR THE ACTION TAKEN DOES SO AS A

MATTER OF FEDERAL LAW SO THAT THE

ADJUTANT GENERAL DID NOT ACT UNDER

COLOR OF STATE LAW, AND IN ANY EVENT

THE STATUTE PREEMPTS THIS CAUSE OF

ACTION.

The termination of the employment of plaintiffs was

effectuated pursuant to 32 U.S.C. § 709. Thus, the source

of authority was federal and not state law. As a result,

the defendants did not act under color of state law as re-

quired for an action under 42 U.S.C. § 1983.

The arguments supporting this position have been

ably set out in the petition for certiorari and will not be

repeated at length here. AGAUS would simply like to

reemphasize that the decisions relied upon by Judge Ro-

senn in dissent accurately reflect the facts here and are

a sounder basis for deciding this question than those re-

lied upon by the majority. In particular, Judge Rosenn

correctly narrows his inquiry to the particular action

being challenged to see if authority conferred by state

law played a role. Aside from the fact that the Adjutant

General is appointed at the state level, it is federal law

which completely governs these facts. Absent 32 U.S.C.

§ 709 there would be no technicians and there would be

no authority on the part of an Adjutant General to dis-

miss them from employment. Where someone holds state

employment, but in a particular situation is acting as an

agent of the federal government, it is much more reason-

able to find that that person is acting under color of fed-

eral law. Ellis v. Blum, 6438 F.2d 68 (2d Cir. 1981); As-

kew v. Bloemker, 548 F.2d 673 (7th Cir. 1976).

19

Furthermore, the plaintiffs here had available and

used a remedy of appealing their dismissal by virtue of an

action under the Administrative Procedure Act. Claims

for back pay have been transferred to the United States

Court of Claims. As Judge Rosenn argues, the concerns

expressed by this Court in Bush v. Lucas, 462 U.S. 367,

103 8. Ct. 2404, 76 L.Ed.2d 648 (1983) are equally ap-

plicable here. Just as the civil service remedy there

barred a Bivens cause of action, so too should the specific

remedy granted National Guard Technicians void the

statutory equivalent of Bivens, an action under 42 U.S.C.

§ 1983.

For these additional reasons, the decision of the Third

Circuit is an erroneous one which needs to be rectified by

this Court. Accordingly, the claim for damages under 42

U.S.C. § 1983 should be dismissed.

fay

vy

CONCLUSION

For the aforestated reasons, the petition for cer-

tiorari should be granted, and the decision of the Third

Circuit should be reversed.

Respectfully submitted,

WILLIAM S. GREENBERG

Counsel of Reeord

GREENBERG & Prior

Attorneys for Amicus Curiae

Adjutants General Association

of the United States

CN 5320

301 Carnegie Center

Princeton, New Jersey 08540

(609) 987-1200

Dated: July 15, 1986

App. 1

APPENDIX

UNITED STATES DISTRICT COURT

DISTRICT OF NEW JERSEY

Civil No. 82-2578

ROY A. JOHNSON and JOHN J. SHELLER,

Plaintiffs,

VERNE ORR, Secretary, Department of the Air Force;

FRANCIS GERARD, Major General, The Chief of Staff

(Adjutant General) State of New Jersey Department of

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

COLONEL JOHN MURPHY, New Jersey Air National

Guard; BRIGADIER GENERAL CHARLES YOUNG,

Air Commander, New Jersey Air National Guard,

Defendants.

OPINION

(Filed Dee. 22, 1983)

THOMPSON, District Judge

Appearances: 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

App. 2

Mark Roth, Esquire

Action General Counsel

A.F.G.E.

1325 Massachusetts Ave., N.W.

Washington, D.C. 20005

(Attorneys for Plaintiffs)

W. Hunt Dumont, United States Attorney

By: Mary Catherine Cuff

Assistant U.S. Attorney

Deputy Chief, Civil Division

970 Broad Street

Newark, New Jersey 07102

By: 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

Department of the Judge Advocate

General

Washington, D.C. 20324

(Attorneys for Defendants)

This case has been brought by Plaintiffs Roy John-

son and John Sheller. Both were civilian federal employees

with the New Jersey Air National Guard [‘‘NJANG’’].

Plaintiffs were dismissed from their positions as NJANG

technicians for conducting a union meeting and advocat-

ing a ‘‘job action.’’ They have now brought suit against

Defendants Orr, Secretary of the U.S. Department of the

Air Force, and Gerard, Chief of Staff of the NJANG, in

their official capacities. They have also brought suit

against Defendants Menard, Chief «f Staff of the NJANG

when plaintiffs were dismissed, Murphy, plaintiffs’ su-

pervisor, and Young, Commander of the NJANG at Me-

App. 3

Guire Air Force Base when plaintiffs were dismissed as

individuals.

As to Defendants Menard, Murphy and Young [‘‘de-

fendants’’], plaintiffs allege that the defendants fired

them in retaliation for exercising their First Amendment

rights. They charge that the defendants acted in an ar-

bitrary and capricious fashion to deny them of their

property in violation of their constitutional rights and

without adequate due process. Plaintiffs request damages

under 42 U.S.C. § 1983, and directly under the Constitu-

tion in a Bivens cause of action. Bivens v. Sir Unknown

Named Agents of the Federal Bureau of Narcotics, 403

U.S. 388 (1971). Plaintiffs also asked for review of the

NJANG’s determinations under the Administrative Pro-

cedures Act, 5 U.S.C. § 701, et seq., and for damages under

the Back Pay Act, 5 U.S.C. § 5596.

In its opinion of March 8, 1983, this court recognized

piaintiffs’ right te proceed in this action except as to

monetary claims against the federal government, which

were transferred to the Court of Claims. Individual] de-

fendants Murphy, Menard and Young now move to dis-

miss the claims against them in light of two recent Su-

preme Court cases, Bush v. Lucas, 103 S.Ct. 2404, 51 U.S.

L.W. 4752 (1983) and Chappell v. Wallace, 103 S.Ct. 2362,

51 U.S.L.W. 4733 (1983).

The case of Chappell v. Wallace does not preclude a

Bivens action against defendants in this case. Chappell

provides that federal courts should not imply a cause of

action directly under the constitution when it will inter-

fere with military discipline. The logic of the case is that

courts are ill-equipped to weigh the factors that go into

App. 4

the unique need for discipline between a soldier and his

or her superior. The Court explicitly premised its deci-

sion on the existence of a ‘‘framework of . . . intra-mili-

tary administrative procedures to which courts should

defer,’’ and an ‘‘exclusive system of military justice.’’

The court stated:

The special nature of military life, the need fer un-

\hesitating and decisive action by military officers and

equally disciplined responses by enlisted personnel

would be undermined by a judicially created remedy

exposing officers to personal liability at the hands of

those they are charged to command.

51 U.S.L.W. 4733, 4735 (1983).

I find that these factors unique to the military were

not at work in this case. The plaintiffs’ cause of action

arose specifically as a result of the plaintiffs’ civilian em-

ployment activities, and not as a result of their militia posi-

tions. As technicians, plaintiffs were not covered by the

comprehensive system of intramilitary justice referred to

in Chappell. The technicians did not fall into the narrow

category of concerns in the relationship between a soldier

and his or her superior to which Chappell applies. The

application of a Bivens remedy to a New Jersey Air Nat-

ional Guard technician in an employment-related claim

would not unduly impair the operation of the military.

In Chappell, plaintiffs had requested damages for dis-

criminatory military assignments. The assignments were

‘*incident to military service.’’ Here, Johnson and Sheller

claim their firings and denial of due process were as a re-

sult of their union activities. Their claims are incident

to their civilian employment, not their militia activities.

This is a distinction the Third Circuit appeared to

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

tn eet 0s tor Rowen ee

App. 5

1974), when the court held that the refusal of a New Jer-

sey Air National Guard technician to participate in a mil-

itary duty, funeral firing squad detail, did not justify dis-

missal of the technician from his civilian employment du-

ties. The court held that in the decision whether to fire

Chaudoin, the Adjutant General must judge him ‘‘as a

technician and not as a member of the National Guard.’’

Id., at 1331. Here, I find that the court must judge this

situation as one of employer-employee relations, not as

one of soldier-military commander relations.

I do not lightly dispose of the defendants’ concern

that it is difficult to separate plaintiffs’ employment and

military functions since the commanders serve as both

military and non-military superiors to the plaintiffs, and

since plaintiffs’ civilian job is ultimately related to the

National Guard’s military function. The Chappell excep-

tion to Bivens is carefully framed in narrow terms, how-

ever. Unless the exception should swallow the rule, I find

the plaintiffs’ civilian employment related claim should not

be governed by the Chappell exception.

Defendants also urge that the recent Supreme Conrt

ease of Bush v. Lucas, supra, compels that the Court re-

verse its opinion that a Bivens remedy would apply to

this case. In Bush v. Lucas, an aerospace engineer was

demoted in his federal job for certain statements he made

to the press. He attempted to sue his employers directly

under the Constiution for damages for the violation of

his First Amendment rights.

For the purposes of deciding whether a Bivens rem-

edy ought to apply, the Supreme Court assumed that (1)

Bush’s First Amendment rights were violated by the ad-

App. 6

verse personnel action; (2) administrative remedies were

not as effective as individual remedies and did not fully

compensate Bush for the Constitutional harm (e.g., did

not award punitive damages or attorneys’ fees); and (3)

Congress had not provided an alternative statutory rem-

edy that was to be the exclusive remedy for the harm

alleged.

The Court held that even though the statutory remedy

did not provide a complete remedy for the constitutional

wrong, courts should not*imply a Bivens remedy. Fed-

eral personnel policy is an area more appropriately left

for Congressional action, and therefore constitutes a

‘*special factor counselling hesitation,’?’ which would pro-

hibit the courts from creating a new remedy. The ‘‘con-

flicting interests involved in providing job security, pro-

tecting the right to speak freely, and maintaining dis-

cipline and efficiency in the federal workforce’’ is an area

over which Congress and not the courts should have con-

trol. Bush at 4757.

The court stated that:

The question is not what remedy the courts should

provide for a wrong that would otherwise go unre-

dressed. It is whether an elaborate remedial system

that has been constructed step by step, with careful

attention to conflicting policy considerations, should

be augmented by the creation of a new judicial rem-

edy for the constitutional violation at issue. That

question obviously cannot be answered simply by

noting that existing remedies do not provide com-

plete relief for the plaintiff. The policy judgment

should be informed by a thorough understanding of

the existing regulatory structure and the respective

costs and benefits that would result from the addi-

App. 7

tion of another remedy for violations of employees’

First Amendment rights ... . In all events, Congress

is in a far better position than a court to evaluate the

impact of a new species of litigation between federal

employees on the efficiency of the civil service ....

Thus we do not decide whether or not it would be

good policy to permit a federal employee to recover

damages from a supervisor who has improperly dis-

ciplined him for exercising his First Amendment

rights . . . because we are convinced that Congress

is in a better position to decide whether or not the

public interest would be served by creating it.

51 U.S.L.W. 4758-59.

The fact of a comprehensive statutory system of rem-

edies is not determinative of whether a court should imply

a Bivens cause of action. Rather, the system was treated

by the Supreme Court in Bush as an example of how dif-

ficult questions of federal personnel policy are, and how

a court’s interference in these balances would undermine

those choices made by Congress.' Therefore, in light of

the inherent and demonstrated interest of Congress in es-

tablishing federal personnel policy, the Court should hesi-

tate to imply a remedy unless the area of personnel policy

is one where Congress has abrogated its interest and judi-

cial establishment of a remedy would not interfere in any

balancing of rights Congress has undertaken.

In the present case, I find Bush does apply. The

court does not dispute that the remedy available to plain-

1 The comprehensiveness of the remedy provided by Con-

gress is also significant in determining whether the remedy

is sO constitutionally inadequate that the court might be

obliged to imply a remedy for the vindication of constitu-

tional rights. 51 U.S.L.W. 4756, n. 14. This point is not at

issue here.

App. 8

tiffs might be less effective or complete than a cause of

action directly under the Constitution. I find, however,

that Congress is more competent to assess issues of per-

sonnel policy for the federal employees of the National

Guard, as described by the theory of Bush. Congress

specifically undertook to bring technicians under federal

contro! in the 1968 National Guard Technician’s Act, 32

U.S.D. § 709. With that Act, Congress decided the remedy

available to technicians for employment actions, including

that a technician cannot be fired from civilian employ-

ment without cause, § 709(e)(3), or unless first separated

from requisite Nationai Guard membership, § 709(e) (1)

and (2). The legislative history of the Act makes clear

that Congress balanced issues of federal personnel spe-

cific to National Guard technicians, including the need

for state controls which would not apply to other civil

service employees.. House Report No. 1823, reprinted in

1968 U.S. Code Cong. and Admin. News 3324. See also

New Jersey Air National Guard v. F.L.R.A., 677 F.2d 276

(3d Cir. 1979). I therefore find that as in the Bush situ-

ation, Congress is the appropriate body to have weighed

the intricacies of the dual status of these federal em-

ployees and to make policy decisions regarding techni-

cians’ remedies for adverse employment actions. In the

absence of a Congressional remedy, the court shall not

imply one.

I note that this is not a case where Congress has

denied all remedies. Plaintiffs had an administrative

hearing which was reviewed by the Adjutant General. The

plaintiffs claim that these procedures were rendered in-

effective by the defendants’ actions. This court has al-

ready held that our own review of the administrative de-

App. 9

liberations can remedy this deficiency, and that the court

can award reinstatement and injunctive relief. The Court

of Claims may award back pay and attorneys’ fees.

While the scheme of employee rights available to the

plaintiffs may not be as comprehensive as the civil service

scheme described in Bush, I find that it does evidence a

Congressional weighing of a variety of factors in an area

of specific Congressional concern, federal personnel pol-

icy. I believe that in light of the Supreme Court’s recent

analysis in Bush, it would be imprudent for the court to

interfere with these balances by allowing a Bivens rem-

edy. See also Hansen v. U.S. Dept. of the Air Force,

Civil No. 80-685 (September 14, 1983, D.N.J.), in which

Judge Gerry dismissed the Bivens claim of a New Jersey

Air National Guard technician in light of Bush v. Lucas.

Defendants apparently also argue that if the Bivens

claims against them are dismissed in light of Bush, then

the 42 U.S.C.A. § 1983 claims must also be dismissed under

the same analysis. I find that the logic in Bush is not

equally applicable to the § 1983 claims, and that defen-

dants’ motion as to this point will be denied.

The Bush case specifically addresses when courts

should imply a remedy in an area of distinct Congres-

sional concern where Congress has not authorized a rem-

edy. In the § 1983 case, Congress has provided a specific

remedy. Namely, when a person acts under the color of

state law to deprive another person of a constitutional

right, § 1983 specifically provides that the injured party

does have a private cause of action. Defendants have

cited no cases showing that a § 1983 complaint should be

dismissed in a case such as this. In fact, in Chappell,

App. 10

supra, a case similar to Bush in that the Supreme Court

refused to allow a Bivens claim due to special factors

counseling hesitation, the Court declined to decide whether

or not an action under 42 U.S.C.A. § 1985 could be main-

tained. 31 U.S.L.W. at 4736, note 3.

Although the court will follow Bush v. Lucas and

refrain from implying a cause of action directly under

the constitution in this case, where such a cause of action

has already been provided by Congress, premised on the

condition that defendants’ actions were under the color

of state law, the court will not dismiss the count.

Finally, General Menard argues that the complaint

should be dismissed against him under a theory of judicial

immunity. General Menard is the Adjutant General and

Chief of Staff of the New Jersey Department of Defense.

Menard was responsible for determining whether or not

to accept the hearing examiner’s recommendations to dis-

miss the plaintiffs. He claims that in doing so, he acted

in a judicial capacity and therefore is immune from an

action for damages. In the alternative, Menard argues

that he is a state officer entitled to qualified or ‘‘good

faith’’ immunity for acts performed in the course of his

official responsibilities.

The court is not convinced that the Adjutant Gen-

eral should be entitled to judicial immunity. Although

his duty in this case involved reviewing a record and

rendering a decision, this alone should not qualify him

for the kind of immunity accorded to members of the judi-

ciary and court system. See, e.g., Stump v. Sparkman,

435 U.S. 349 (1978). Rather, the judgment made by

Menard was ciearly in the realm of an employment de-

mentees

App. 11

cision. To afford these kinds of employment decisions,

judicial immunity, even when based on a formal hearing,

would be an extension of the doctrine of judicial immunity.

Rather, Scheuer v. Rhodes, 416 U.S. 232 (1974) has

established that an Adjutant General’s decisions are en-

titled to a qualified good faith immunity. If Menard’s

actions violated plaintiffs’ constitutional rights, and were

outside the scope of his office, arbitrary, malicious or an

abuse of power, he will be held accountable. Scheuer, and

Procumer v. Navarette, 434 U.S. 555 (1978). <A finding

of immunity depends on all of the circumstances that are

revealed by the evidence and as they reasonably appeared

at the time of Menard’s actions. Scheuer. At this time,

the court will not conclude that Menard is immune from

suit. The circumstances as to Menard’s intent in light of

plaintiffs’ allegations of retaliation, malice and bad faith

are not developed sufficiently for the court to make a

jndgment as to the extent of any immunity it might grant

to defendants. The court is aware of the policy consid-

erations discussed in Sheuer relating to the necessary

discretion allowed to state officials in the exercise of their

official duties. At this time, however, a judgment as to

immunity would be premature.

In conclusion, the court will dismiss plaintiffs’ cause

of action directly under the constitution in light of the

Supreme Court’s recent holding in Bush v. Lucas, supra.

The remainder of defendants’ motion will be denied.

December 21, 1983

~

~~

App. 12

UNITED STATES DISTRICT COURT

DISTRICT OF NEW JERSEY

Civil No. 82-2578

ROY A. JOHNSON and JOHN J. SHELLER,

Plaintiffs,

v.

VERNE ORR, Secretary, Department of the Air Force;

FRANCIS GERARD, Major General, The Chief of Staff

(Adjutant General) State of New Jersey Department of

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

COLONEL JOHN MURPHY, New Jersey Air National

Guard; BRIGADIER GENERAL CHARLES YOUNG,

Air Commander, New Jersey Air National Guard,

Defendants.

ORDER

(Dee. 22, 1983)

This matter having come before the court on defen-

dant Menard, Murphy, and Young’s motion to dismiss

and the court having considered this motion and opposi-

tion and the oral argument, briefs and supporting papers

submitted by the parties and for the reasons stated in the

court’s opinion filed even date herewith; it is on this

21st day of December 1983,

ORDERED that defendants’ motion to dismiss counts

brought directly under the constitution is granted; and

it is further

ORDERED that defendants’ motion to dismiss counts

brought under 42 U.S.C.A. is denied; and it is further

ORDERED that defendant Menard’s motion to dis-

miss the complaint for reasons of immunity is denied.

/s/ Anne E. Thompson, U.S.D.J.

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