Petition for Writ of Certiorari — Newport v. Missouri Army National Guard

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No. D7] - GAZ SEP 20 1897

JAN 9 1998

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1997

COLLEEN E. NEWPORT

AND JAMES F. NEWPORT

-- PETITIONERS RECEIVED

WUY ] U 1997

VS. OFFICE OF

SUPR OMT

THE CLER,

COURT, 1 z

MISSOURI ARMY NATIONAL GUARD &

ADJUTANT GENERAL PENDERGRASS

-- RESPONDENTS

ON PETITION FOR WRIT OF CERTIORARI TO THE UNITED STATES

COURT OF APPEALS FOR THE EIGHT CIRCUIT

PETITIONERS’ RULE 40 MOTION FOR VETERAN TO PROCEED WITHOUT

COSTS AND ON PAPERS

The petitioners, a pro se veteran and his testifiant spouse suing to establish federal

veterans reemployment rights over the State of Missouri pursuant to 38 U.S. C. 2021

(1990), asks leave to file their Petition for a Writ of Certiorari without costs and on

written papers under the provisions of Supreme Court Rule 40 and 38 U.S.C. § 2022'

(now 38 U.S.C. § § 4323).

SUGGESTIONS

This retailitory discharge appeal action against the State of Missouri lies under the

organic whole of the Vietnam Era Veterans' Readjustment Assistance Act of 1974 which |

as stated in footnote 1 supra was reenacted, amended and recodified as the USERRA 38 |

U.S.C. §§ 4301 et seq.

Petitioners have been granted leave in this action pursuant to 38 U.S.C.A. § 4302

formerly 38 U.S.C. § 2022 to proceed without costs in the Western District of Missouri,

Western Division.. See generally Fishgold v. Sullivan Drydock & Repair Corp., 328 US

275, at 284, 90 L.Ed 1230, 66 S.Ct 1105, 167 ALR 110 (1946) which holds that

application for benefits which initiates the no taxation of cost provisions is to the District

Court

Congress has provided in § 8 (e) of this Act that when a veteran applies

to the District Court for the benefits of the Act "no fees or court costs

shall be taxed" against him.

' The USERRA is a reenactment and recodification of veterans reemployment rights laws

starting with Section 8 of The Selective Training and Service Act of 1940; 54 Stat. 890;

later The Military Selective Service Act of 1967 as 50 U.S.C. S. Appx. § 459;

subsequently The Vietnam Era Veterans' Readjustment Assistance Act of 1974 as 38

U.S.C. §§ 2021 et seq., and finally the Uniformed Services Employment and

Reemployment Rights Act Of 1994 (USERRA), [redesignated 38 USCS §§ 2021--2027

as 38 USCS §§ 4301--4307].

Fifty years of controlling Supreme Court precedence Fishgold v. Sullivan Drydock

& Repair Corp., 328 US 275, 90 L.Ed 1230, 66 S.Ct 1105, 167 ALR 110. (1946) and the

holdings of several lower court cases support that . See also Campbell v Roach, et al ,

741 F. Supp. 566 (D.C. Md,1990) District Judge Motz held at 567;

"I am satisfied that the no-taxation-of-costs provision of [38 USC] 2022

is intended to apply to all court proceedings." including the entry of an

order permitting him [Applicant for benefits under Vietnam Era Veterans

Readjustment Assistance Act.] to proceed on appeal without prepayment

of costs.

but see Congrove v. St. Louis-San Francisco Ry. Co., No. 76-CV547-W-4-6.(W.D.Mo.

1980), 106 L.R.R.M. 2194; 89 Lab. Cas. (CCH) P12,347 [costs assessed against the

United States in a closely decided but unsuccessful VRRA action.] See also Newport v.

Michelin Aircraft Tire Corp., 851 F. Supp. 1406 at 1408.

The new language of 38 U.S.C. § 4323 (formerly 38 U.S.C. § 2022) states:

(d)(3) (A) No fees or court costs shall be charged or taxed against any

person claiming rights under this chapter [38 USCS §§ 4301 et seq.].

Further, The anti discrimination clauses of 38 U.S.C. § 4311 (c)(2) states:

(2) The prohibition in paragraph (1) shall apply with respect to a person

regardless of whether that person has performed service in the uniformed

services and shall apply to any position of employment, including a position

that is described in section 43 12(d)(1)(C).

Colleen Newport as a testfiant in Newport v. Ford Motor Co, W.D. Mo. #92-

0287-CV-W-3 has suffered an injury to a protected property interest in her vested interest

in her spouse James Newport’s retirement benefits that he would accrue absent the alleged

retaliatory discharge. The Complaint (Doc. 10) at page 6 shows Colleen Newport has

standing under 38 U.S.C. § 4311 (2) as a testfiant:

Each and every defendant had knowledge that James F. Newport and Colleen E.

Newport were exercising first amendment rights and rights under 38 U.S.C. § 4323 to

testify in the United States District court under the USERRA. ¥ 1 at Page 8 of (Doc. 10)

“in Newport v. Ford Motor Co., W.D. Mo. #92-0287-CV-W-3,(s) 8th Cir. #95-1407

WMKC.”

Congress adopted into the USERRA the body of case law of the VRRA and it’s

predecessor statutes The Selective Training and Service Act of 1940 and the Military

Selective Service Act of 1967 and wanted to ensure that those principles of law held in

Fishgold supra including the no taxation of costs were enforced: See House Report No.

103-65, 103rd Cong. Ist Sess. at 24, reprinted in 1994 U.S. Code Cong. & Ad. News at

2452

Therefore, the Committee wishes to stress that the extensive body of case

law that has evolved over that period, to the extent that it is consistent with

the provisions of this Act, remains in full force and effect in interpreting

these provisions. This is particularly true of the basic principle established

by the Supreme Court that the Act is to be liberally construed. Fishgold v.

Sullivan Drydock & Repair Corp., 328 US 275, 285 (1946): Alabama

Power Co. v. Davis, 431 U.S. 581, 584 (1977).

See Winders v. People Exp. Airlines, Inc, 595 F.Supp. 1512, 1519 (1984).

“Although the act is to be liberally construed it is not to liberally construed to defeat its

own purpose.” (emphasis added). The proper application of the no taxation of costs or

fees provision should recognize “ that each section has its own separate and distinct

purpose and must be considered as complementary rather than mutually exclusive

enactments favoring the plaintiff [reservist]“ Breeding v. TRW_ Ross Gear Div, 477

F.Supp. 1177, 1180 (1979).

Supreme Court Rule 40 is a recognition that Petitioners do not sue simply as an,

aggrieved applicants “but as a veteran [reservist] asserting special rights bestowed upon

him in furtherance of a federal policy to protect those who have served in the Armed

Forces.” Mc Kinney v. Missouri-Kansas-Texas R. Co., 357 US 265, 269, 2 L.Ed. 1305,

78 S.Ct. 1222 (1958).

Currently the no taxation of costs provision of the veterans reemployment rights

Acts (USERRA) is at 38 U.S.C. §4322(c). See Jordan v. Jones, No. 95-40488, 1996 U.S

App. LEXIS 12394 (2nd Cir. 1996) which held:

However, the legislative history accompanying the enactment of a

subsequent provision of the VRRA, which applies to reemployments

initiated on or after the first day after the 60-day period beginning on Oct.

13, 1994, convinces us that Congress intended @ 4302 to prevent any

person claiming [*12] benefits under the VRRA from being assessed

costs. In describing the new provisions, the Senate Report states:

New section 4322(c)(2) would provide that no fees or court costs could be

charged or taxed against any individual pursuing a claim of a violation of

his or her [rights under the VRRA]. If that individual were the prevailing

party, the court could, in its discretion, award the individual reasonable

attorney fees, expert witness fees, and other litigation expenses when not

represented by the Attorney General. The prohibition against charging

fees or costs exists in present section 4302. The Committee bill would

authorize the award of attorney fees, expert witness fees, and ether

litigation expenses as a further effort to make service members whole and

not have them suffer any loss in realizing their reemployment rights.

S.Rep. No. 158, 103d Cong., Ist Sess. (1993). Accordingly, we conclude

that Congress intended @ 4302 to prohibit district courts from awarding

costs against a person who is pursuing a claim of a violation of his rights

under the VRRA irregardless of who represents him.

Petitioner’s declaration in support of this Rule 40 motion showing their standing as

a veteran/reservist/testifiant suing to establish reemployment rights under the USERRA is

attached hereto.

Wherefore all the above reasons Petitioners prays the Supreme Court of the

United States GRANT their Motion to Proceed without Costs pursuant to 38 U.S.C. §

4323 formerly 38 U.S.C. § 2022 and on Papers under Rule 40.

Most Respectfully Submitted,

Ul, lip»?

Colleen E. Newpo /

es F. Newport, pro s

1405 Kingston Rd.

Blue Springs, Missouri 64015

#8 16-228-2530

DECLARATION

I declare pursuant to 28 U.S. C. § 1746 under the penalties of the perjury laws of

the United States that | am a member or past member of the United States Reserve

Components and a veteran seeking to obtain the benefits of the veterans reemployment

rights acts (VERA/USERRA). This statement is true and accurate to the best of my

Q, a 4 a

James F. Newport, pro se

[ 140s Kingston Rd.

Blue Springs, Missouri 64015

DECLARATION

I declare pursuant to 28 U.S. C. § 1746 under the penalties of the perjury laws of

the United States that I am a festifiant on behalf of a member or past member of the

United States Reserve Components and a veteran seeking to obtain the benefits of the

veterans reemployment rights acts (VERA/USERRA). This statement is true and accurate

to the best of my knowledge and belief. / My 4) Ss

Luli?

Ys aay

BAL Spry 7, M0 bYUS

— eee

4 nM ton Eficitid

Colleen E. Newport, pro se

1405 Kingston Rd.

Blue Springs, Missouri 64015

CERTIFICATE OF SERVICE

I declare pursuant to 28 U.S. C. § 1746 under the penalties of the perjury laws of the

United States that two true and accurate copies of the above was mailed first class

postage prepaid on this day of November f, 1997 to:

Jeremiah W. (Jay) Nixon

Attorney General of Missouri,

Theodore A. Bruce

Assistant Attorney General

221 W. High, 4th Floor f

Jefferson City, MO 65102 F, 7 P

\

(]

James F. Newport

Supreme Cowrt, U.S, |

FILED

No. 97-846 SEP 16 $97

C.erx

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a

iets ore cennaans a a

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1997

COLLEEN E. NEWPORT

AND JAMES F. NEWPORT

- PETITIONERS

VS.

MISSOURI ARMY NATIONAL GUARD &

ADJUTANT GENERAL PENDERGRASS

-- RESPONDENTS

ON PETITION FOR WRIT OF CERTIORARI TO THE UNITED STATES

COURT OF APPEALS FOR THE EIGHT CIRCUIT

Petitioners

COLLEEN E. NEWPORT & JAMES F. NEWPORT (pro se)

1405 KINGSTON RD.

BLUE SPRINGS, MISSOURI 64015

(816) 228-2530

For Respondents

JEREMIAH W. (JAY) NIXON

ATTORNEY GENERAL OF MISSOURI, J

THEODORE A. BRUCE RECEIVED |

ASSISTANT ATTORNEY GENERAL

221 W. HIGH, 4TH FLOOR «NOV 1 U Iyyy

JEFFERSON CITY, MO 65102 |

OFFICE OF THE CLERK

___ SUPREME COURT, U.s. |

No.

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1997

COLLEEN E. NEWPORT

AND JAMES F. NEWPORT

-- PETITIONERS

VS.

MISSOURI ARMY NATIONAL GUARD &

ADJUTANT GENERAL PENDERGRASS

-- RESPONDENTS

ON PETITION FOR WRIT OF CERTIORARI TO THE UNITED STATES

COURT OF APPEALS FOR THE EIGHT CIRCUIT

QUESTIONS PRESENTED

1. Whether Congress has Constitutionally abrogated the States’ sovereign immunity

under the Uniformed Services Employment and Remployment Rights Act of 1994 ‘to

' Before their recodification in 1974, the veterans’ re-employment rights provisions were

codified at 50 U. S. C. App. § 459 (1970 ed.) (§ 9 of the Military Selective Service Act of

1967). See Coffy v. Republic Steel Corp., 447 U.S. 191, 194, n. 2. The complaint in this

action also references the Veterans Reemployment Rights Act [VRRA], codified at 38

U.S.C. §§ 2021-27, as amended. The VRRA was renumbered Chapter 43, sections 4301-

07 by Pub. L. 102-568, Title V, § 506(a), Oct. 29, 1992, 106 Stat. 4340. Section 2021

was transferred without change to § 4301. The VRRA was subsequently amended by the

Uniformed Services Employment and Reemployment Rights Act [USERRA], codified at

38 U.S.C. §§ 4301-33, effective October 13, 1994. The amendments of the USERRA

generally applies to actions initiated on or after a 60-day period after enactment of the

Act, October 13, 1994. Pub. L. 103-353, § 8, Oct. 13, 1994, 108 Stat 3150.

maintain discipline and control of the Armed Forces thus providing an exception to the

Feres’ doctrine.

2. Whether the State of Missouri consents to suit under the RSMo 40.490 which

States in relevant part.

Reemployment Ri f n to Activ

Members of the state military forces of this state who are ordered to active

state duty by the governor shall, upon being relieved from such duty, be

entitled to the same reemployment rights provided by Title 38 of the United

States Code, the Revised Statutes of Missouri, and all amendments thereto.

LIST OF PARTIES

All parties appear on the caption of the case on the cover page

TABLE OF CONTENTS

TABLE OF AUTHORITIES pe. 3

OPINIONS BELOW 4

JURISDICTION pe. 5

CONSTITUTIONAL AND STATUTORY PROVISIONS INVOLVED........pg. 5

STATEMENT OF THE CASE : pe. 6

REASONS FOR GRANTING THE WRIT (Argument) pg. 6

L The Eight Circuit’s Application of 38 U.S.C. §4311 (b) to this case was

incorrect in view of both the clear statutory language and the legislative history of the

Uniformed Services Employment and Reemployment Rights Act of 1994

* See Feres v. U.S. 340 US. 135

Il.

ER RETO ERIN A DL LENS ATO A a ROME pg. 12

INDEX OF APPENDICES

(Appendix. A) May 12, 1997 per curiam decision of Honorable Judges McMillian, Fagg

and Loken of the 8th Circuit Court of Appeals in No. 97-1212

(Appendix B) June 13, 1997 Denial of Rehearing and Rehearing En Banc by the 8th

Circuit

(Appendix C) July 17, 1996 Decision of the United States District Court for the Western

District of Missouri.

(Appendix D) Supreme Court’s Receipt of Defective Petition on Sept. 10, 1997

TABLE OF AUTHORITES

CASES

Perpich v. DOD, (1990) 496 US 334, 110 L.Ed. 312, 110 S.Ct. 2418 pg.5

Fitzpatrick v. Bitzer, 427 U.S. 445, at 456-57, 96 S. Ct. 2666 at 2671-72, 49 L. Ed. 2d

614 (1976). pg. 5

Principality of Monaco vy. Mississipi, 292 U.S. 313, 322 (1934) pg. 6

STATUTES AND RULES

Fed.R.Civ.P. 56(c).

Recognition of National Guard and Reserve Forces. Act, Sept. 8, 1982, P.L

The Military Selective Service Act of 1967 as 50 U.S.C. S. Appx. § 459,

[he Selective Training and Service Act of 1940, 54 Stat. 890,

The Vietnam Era Veterans’ Readjustment Assistance Act of 1974 as 38 U.S.C §§ 2021 ef

seq.

Uniformed Services Employment and Reemployment Rights Act Of 1994 (USERRA),

[redesignated 38 IJISCS §§ 2021--2027 as 38 USCS §§ 4301--4307].

Veterans’ Benefits Improvement and Health-Care Authorization Act, Pub.L No. 99-576,

Title II, 331, 100 Stat. 3248 Oct. 28, 1986

OTHER AUTHORITIES

1994 US Code Cong. & Ad. News, 108 STAT. 3153

32 CFR Ch. 1 (7-1-92 Edition) § 76

865 Cong Rec. 10095 (1940) (remarks of Sen. Sheppard)

HR Rep. No.1069, 94th Cong., 2d Sess. 325, reprinted in 1976 U.S. Code Cong. &

Admin

News 1034, H.R. Rep. No. 107, 98th Cong., Ist Sess. 202 (1983).) pg. i.

Hearings on H.R. 11509 Before Subcommittee No. 3 of the House Committee on Armed

Services, 89th Cong., Ist Sess. at 5320 (Feb. 23, 1966).

Hearings before the House Committee on Military Affairs on H.R. 10132, 76th Cong., 3d

Sess. 86 (1940) (cited in Special Monograph No. 2, The Selective Service Act: Its

Legislative History, Amendments, Appropriations, Cognates and Prior Instruments of

Security 569 (1954) (hereinafter The Selective Service Act).

House Report No. 103-65, 103rd Cong. Ist Sess. at 24, reprinted in 1994 U.S. Code

Cong & Ad News

Sen 76th Cong. Rec. 3rd Session page 10108 August 9, 1940.

Senate Report No. 103-158, 103rd Cong. Ist Session

132 Cong. Rec. 29226 (Oct. 7, 1986)(copy attached as H9297)(statement of Cong.

Montgomery)

Joint Explanatory Statement of both the House and Senate Committees (Conference

Report), reported at 140 Congressional Record H9142-9143, and reprinted in 1994 U.S.

Code Cong & Ad. News at 2515

Petitioners Colleen E. Newport and James F. Newport (pro se) respectfully pray

that a writ of certiorari issue to review the decision of the United States Court of Appeals

for the Eight Circuit in this case.

OPINIONS BELOW

The May 12. 1997 opinion of the Court of Appeals affirming the judgment of the

Western District of Missouri is unreported (Appendix. A). A timely petition for rehearing

and rehearing en banc was filed. The petition for rehearing rehearing and rehearing en

banc was denied June 13, 1997 (Appendix B)

The finding of fact and conclusions of law of the United States District Court for

the Western District of Missouri (Appendix.C) are not reported.

JURISDICTION

The date that on which the United States Court of Appeals decided my case was

May 12, 1997. (Appdx. A) a timely petition for rehearing was denied on June 13, 1997

(Appendix B)

The jurisdiction of this Court is invoked under 28 U.S.C. § 1254(1), and in

accordance with Rule 10 of Rules of this Court.

STATUTORY PROVISIONS INVOLVED

The specific provision at issue (A) in this case is 38 U.S.C.§ 4323 (7) which

states: A State shall be subject to the same remedies, including prejudgment interest, as

may be imposed upon any private employer under this section. *

* Any damages awarded to Newport’s would be paid from federal funds received by the

state of Missouri for operation of the MOARNG avoiding the Constitutional impediments

to drawing moneys from the state treasury. See Perpich v. DOD, (1990) 496 US 334, 110

L.Ed. 312, 110 S.Ct. 2418. “The Federal government provides virtually all of the

funding, the material and the leadership for the State Guard units.” . See Perpich v.

DOD, (1990) 496 US 334, 351, 110 L.Ed. 312, 328, 110 S.Ct. 2418. Both the award of

lost wages and benefits and the reinstatement of Newport are appropriate forms of relief

authorized by Congress. See Fitzpatrick v. Bitzer, 427 U.S. 445, at 456-57, 96 S. Ct

2666 at 2671-72, 49 L. Ed. 2d 614 (1976).

STATEMENT OF THE CASE

Pro se Petitioner summits this Brief in support of Writ of Certiorari to decide if

the state of Missouri is subject to the War Powers of Congress to discipline the Armed

Forces and consented to veterans reemployment suits under RSMo 40.490.

REASONS FOR GRANTING THE PETITION

It is an essential postulate of The Constitution “Principality of Monaco v.

Mississipi, 292 U.S. 313, 322 (1934) the Right to discipline the militia was reserved to

Congress

“Congress intended to protect potential and existing reservists from policies that

deter employees from joining the reserves.” Boyle v._ Burke, 925 F2d 497 (ist Cir 1991)

The case presents an important question of federal supremacy rights to Raise

Armies and discipline the Armed Forces under the War Powers reserved to Congress in

which the decision of the Eight Circuit

(a) presents a clear conflict between this case in the 8th Circuit and_Perpich v_ DOD,

(1990) 880 F.2d 11, (8th Cir. 1989) 496 US 334, 351, 110 L-Ed. 312, 328, 110 S.Ct.

2418; Seminole Tribe of Florida v. Florida, 517 US --, 134 L.Ed. 2d 252, 116 S. Ct. -

[No. 94-12] (1996); King v. St. Vincent’s Hospital , No. 90-889, 502 U.S. 215 (1991)

and draws the line of federal supremacy under Printz v._ U.S, No. 95-1478, 518 US. --,

(1997)

THE WAR POWER AND CONGRESSIONAL INTENT

Congress forged this statute to met the necessities of war‘ from the Art. 1, Section

8, Clauses 11-13 of the Constitutions’ War Powers of Congress. “Zhe War Power of the

federal government is its supreme power. When it is in action it is transcendent.” Peel v

Florida Dept. of Transp. 600 F.2d 1070 at 1081 (CAS, 1979). In the recent decision

Seminole Tribe of Florida v. Florida, 517 US --, 134 L.Ed. 2d 252, 116 S. Ct. -- [No. 94-

12] the Supreme Court held at 266

In order to determine whether Congress has abrogated the States’

sovereign immunity, we ask two questions: first, whether Congress has

“unequivocally expresse[d] its intent to abrogate the immunity,” Green v.

Mansour, 474 US 64, 88 L Ed 2d 371, 106 S.Ct. 423 (1985) ; and second,

whether Congress has acted “pursuant to a valid exercise of power.” Jbid

The clear plain statutory language of the USERRA shows Congress unmistakably

intended to abrogate the States sovereign immunity at 38 U.S.C.§ 4323 (7) which states

A State shall be subject to the same remedies, including prejudgment interest, as may

be imposed upon any private employer under this section.

* In 1940 reemployment provisions were at Section 8 of the Selective Trainin rvice

Act of 1940, 54 Stat. 890,. The name of the Act was changed to the Selective Service

Act of 1948, see Pub. L. no 80-759, 62 Stat. 604. and in 1951 to the Universal Military

Training and Service Act. see Pub. L. no 82-51, 65 Stat. 75. In 1967 it was renamed The

Military Selective Service Act of 1967 as 50 U.S.C. S. Appx. § 459 see Pub. L. 90-40, 81

Stat. 100 and in 1971 the name was changed to the Military Selective Service Act, see

Pub. L. No 92-129, 85 Stat. 348, Monroe v. Standard Oil Co., 452 U.S. 549, 554-555

See also Hembree vy Georgia Power Co., 637 F.2d 423, n.2 (1981) The reemployment

provisions the Miltary Selective Service Act of 1967 was recodified in 1974 as The

z ' 974 as 38 U.S.C. §§ 2021 ef seq.

"see Pub. L. no 93- 508, 88 ‘Stat 1578

The second part of the inquiry is “Was the Act in question passed pursuant to a

constitutional provision granting Congress the power to abrogate.” Seminole Tribe of

Florida v. Florida, supra at 268.

Seminole Tribe of Florida v. Florida, supra at 277 in holding “Even when the

Constitution vests in Congress complete law making authority over a particular area, the

Eleventh amendment prevents congressional authorization of suits by private parties

against unconsenting states.” decided the issue that Congress absent the 14th amendment

did not have the right to abrogate states 11th amendment immunities under its U.S. Const.

Art. | Commerce powers in expressly overruling Pennsylvania v. Union Gas Co., supra.

However Seminole Tribe of Florida v. Florida, supra Commerce powers holding

does not extend to the supreme and absolutely essential war powers of Congress by which

the states (including the Governer of the State of Missouri) were brought to heel in the

Civil War by the most manifest form of the Congressional War Power; the force of arms.

That the provisions of the 13th and the 14th amendment reciprocally impose the

War power on the states as the War power imposed the 13th and 14th amendments on the

secessionist states:

. (I)t may be said that the power has been expressly given to Congress to

prosecute war, and to pass all laws which shall be necessary and proper for

carrying that power into execution. That power explicitly conferred and

absolutely essential to the safety of the Nation is not destroyed or impaired

by any later provision of the constitution or by any one of the amendments.

These may be construed so as to avoid making the constitution self-

destructive, so as to preserve the rights of the citizen from unwarrantable

attack, while assuring beyond all hazard the common defense and the

perpetuity of our liberties. These rest upon the preservation of our nation.

Lichter v. United States, 334 U.S. 742, 781, 68 S. Ct. 1294, 1314-15, 92 L. Ed. 1694

(1948). Thus to the extent that the federal War Power is used to impose federal

supremacy over the states, laws designed to protect the integrity of the Armed Forces are

the ultimate embodiment of the 14th amendment and flow equally from the War power as

well as § 5 of the fourteenth amendment. The arguement is that when Congress operates

under the War power it automatically incorporates the Fourteenth Amendment to apply

that power to the states. These two powers, exercised together, supersede the states’

immunity. “Congress” army power is plenary and exclusive.” Perpich v. DOD, 880 F.2d

11, 17-18 (8th Cir. 1989) affirmed Perpich v. DOD, (1990) 496 US 334, 351, 110 L.Ed

312, 328, 110 S.Ct. 2418

In conclusion the district court erred in dismissing Count I of the complaint as 38

U.S.C. § 4323 is a valid exercise of the Art I, § 8, cl 16 War power and § 5 of the

fourteenth amendment fo abrogate the immunity of the state of Missouri.

On October 13, 1994, the Uniformed Services Employment and Reemployment

Rights Act Of 1994 (USERRA) replaced The Vietnam Era Veterans' Readjustment

Assistance Act of 1974. It is worthy of note that the President of the United States is the

Commander in Chief of the officers of the National Guard pursuant to Article 2, § 2 of the

U.S. Constitution.

IMPACT OF A DECISION ON THE NATIONAL DEFENSE

“[T]he implementation of the Total Force policy, under which members of the |

Reserve Components’ have been tasked with greater responsibilities for every phase of

military preparedness, has rendered the current structure of the reemployment rights

provisions somewhat antiquated and cumbersome.” House Report No. 103-65, 103rd

Cong. Ist Sess. at 24, reprinted in 1994 U.S. Code Cong. & Ad. News at 2451. Rep.

Sonny Montgomery as Chairman of the House Veterans Affairs Committee on The

Veterans’ Benefits Improvement and Health-Care hadiaitiadiaé Act, Pub.L No. 99-576,

Title Il, 331, 100 Stat. 3248 Oct. 28, 1986 Amendments to 38 USC 2021(b)(3)

predecessor to 38 U.S.C. 4311 that this discrimination protection of the reservist was to

keep fully manned the National Guard and Reserve as critical components of the Armed

forces by removing discriminations as a major reason Reservists and National Guardsmen

leave the Reserve service. See 132 Cong. Rec. H9297 (daily ed. Oct. 7, 1986).

THE IMPORTANCE OF THE RESERVE FORCE TO NATIONAL DEFENSE

See Recognition of National Guard and Reserve Forces. Act Sept. 8, 1982, P.L.

97-252, Title XI, § 1130, 96 Stat. 759, provides:

"(2) The Congress finds that-- |

* Further “The United States Army Reserve, constitutes an integral part of the Army, and

the required qualifications of a soldier are the same regardless of whether he is on active

duty or in the reserves.: Olenick _v. Brucker, D.C. D.C. 1959, 173 F.Supp. 493, set aside

on other grounds, 273 F.2d 819, 107 U.S. App. D.C. 5.

10

ae

"(1) the National Guard and Reserve Forces of the United States are an

integral part of the total force® policy of the United States for national

defense and need to be ready to respond, on short notice, to augment the

active military forces in time of national emergency;

Thus Congress has stated that the national defense is the rational for the

USERRRA’s protections of the members of the national guard.

The Secretary of Defense has published at 32 CFR Ch. 1 (7-1-92 Edition) § 76

regulations that state:

Mobilization of The Ready Reserve

§ 76.5 Policy.

DoD policy directs an increasing reliance on the Ready Reserve to

meet wartime requirements. In certain contingencies, plans call for the

deployment of some Selected Reserve units and individuals before active

units.* * *

(a) Manpower. Achieving manpower goals for both active and Reserve

Components is essential for an effective mobilization process. Personnel

shortages and military skill imbalances affect wartime capabilities of the

total force, not just the DoD Component possessing such deficiencies. * *

7

It was clearly stated by Congress in H.R. Rpt 94-1069 94th Cong 2d Sess. at pg. 10:

The “Total Force Policy” dictates that all available forces, U.S. Active

Forces, U.S. Guard and Reserve Forces, and the forces of our allies--

would be considered in determining the Defense needs to meet future

contingencies. Our national policy of greater reliance on the Guard and

Reserve is resulting in missions being assigned to the Reserve forces that

were previously the sole responsibility of the Active Forces. In some cases

the capability to perform certain missions will be primarily the responsibility

6 Perpich v. U. S.., 880 F.2d 11, 15,(8th Cir. 1989) Submitted, June 28, 1989, Filed, As

Corrected August 14, 1989, at page 15;

Under the "Total Force" structuring of American military forces, reserve components,

including the National Guard of the United States, are fully integrated with regular active

forces in the national defense. See H.R. Rep. No. 1069, 94th Cong., 2d Sess. 325,

reprinted in 1976 U.S. Code Cong. & Admin. News 1034, H.R. Rep. No. 107, 98th

Cong., Ist Sess. 202 (1983).)

of the Reserve Forces. In carrying out these missions, the volunteer

potential of the Reserve will continue to be fully exploited. (emphasis

added)

The Surpeme Court has recognized that vital need of the nation’s total force to be

ready to respond quickly and effectively [in the context of draft legislation but equally

applicable here] See United States v. O'Brien, 391 U.S. 367, 381 (1968).

We think it also apparent that the Nation has a vital interest in having a

system for raising armies that functions with maximum efficiency and is

capable of easily and quickly responding to continually changing

circumstances.

The national security implications of this suit is good cause to hear this case. The

Supreme Court should carefully examine the 8th Circuit’s extension of Feres to bar

application of the USERRA as to its impact on federal control over discipline of the state

National Guard. The point is, that the National Guards supreme loyalty is to the federal

government. The USERRA is the result of a proper exercise of Congressional power to

give a statutory remedy to help preserve and protect the federal loyalty, morale and

discipline of the Armed Forces to provide for the common defense of a more perfect

union by making the federal courts available to any person, i.e. members of the state

militia to include technicians, for state National Guard violations of federal USERRA

rights.

CONCLUSION

“Defense of the Nation by law, no less than by arms, should be a public and not a

private undertaking.” See Pennsylvania v. Nelson, 350 U.S. 497 at 507; 76 S. Ct. 477 at

483; 1956 U.S. LEXIS 1730; 100 L. Ed. 640.

12

For all the above reasons the petition for a writ of certiorari should be granted.

ee 0.

Sree E. es and Jam aa pro aN

1405 Kingstor/Rd.

Blue Springs, Missouri 64015

#8 116-228-2530

Date [ (-

13

APPENDIX

(Appendix. A) May 12, 1997 per curiam decision of Honorable Judges McMillian, Fagg

and Loken of the 8th Circuit Court of Appeals in No. 97-1212

(Appendix B) June 13, 1997 Denial of Rehearing and Rehearing En Banc by the 8th

Circuit

(Appendix C) July 17, 1996 Decision of the United States District Court for the Western

District of Missouri.

(Appendix D) Supreme Court’s Receipt of Defective Petition on Sept. 10, 1997.

TERE -

United States Court of Appeals

FOR THE EIGHTH CIRCUIT

No. 97-1212WM

Colleen E. Newport; James F. Newport,

Appellants, Appeal from the United States

District Court for the Western

v. District of Missouri.

Missouri Army National Guard;

Raymond L. Pendergrass, MG,

[UNPUBLISHED]

oS FF eR SS SS

Appellees.

Submitted: May 7, 1997

Filed: May 12, 1997

Before McMILLIAN, FAGG, and LOKEN, Circuit Judges.

PER CURIAM.

Colleen E. Newport and James F. Newport appeal the district court's orders

dismissing their action against the Missouri Army National Guard and Adjutant General

Raymond L. Pendergrass and denying their postjudgment motions. Having carefully

reviewed the record and the parties’ briefs, we conclude the judgment of the district

court was correct. We thus affirm. See 8th Cir. R. 47B.

A true copy.

Attest:

CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.

UNIT.w STATES COURT OF A} -ALS

FOR THE EIGHTH CIRCUIT

No. 97-1212WMKC

Colleen E. Newport, et al.,

Appellants,

Order Denying Petition for

Rehearing and Suggestion

for Rehearing En Banc

vs.

Missouri Army National Guard,

OF Gk.,

* # # # #@# # #@ @ @& #

Appellees.

ae

The suggestion for rehearing en banc is denied. The petition

for rehearing by the panel is also denied.

June 13, 1997

Wicd. ¢ at the Direction of the Court:

Clerk, U.S. Court of Appeals, Eighth Circuit

I

IN THE UNITED STATES DISTRICT COURT FOR THE

WESTERN DISTRICT OF MISSOURI

WESTERN DIVISION

COLLEEN E. NEWPORT and, )

JAMES F. NEWPORT,

Plaintiffs, )

Vs. ) No. 95-1164-CV-W-5

MISSOURI ARMY NATIONAL )

GUARD, et al.,

Defendants. )

ORDER

Before this Court are defendant Missouri Army National Guard

and defendant Raymond L. Pendergrass' Motion to dismiss and

plaintiffs' Opposition. For the reasons stated below,

defendants' Motion shall be granted.

Standard

When considering a motion to dismiss, an assumption must be

‘ made that all the facts alleged in the complaint are true and a

dismissal may be granted "only if it is clear that no relief can

be granted under any set of facts that could be proved consistent

with the allegations." Alexander vy. Peffer, 993 F.2d 1348, 1349

(8th Cir. 1993); Fusco vy. Xerox Corp,, 676 F.2d 332, 334 (8th

Cir. 1982). A motion to dismiss should not be granted unless it

appears beyond a doubt that the plaintiff can prove no set of

facts which would entitle plaintiff to relief. Conley v. Gibson,

78 S.Ct. 99 (1957).

ORIGINAL puc, 2

Pleadings must be examined in the light most favorable to

plaintiffs and give them the benefit of all reasonable

inferences. Radaszewski vy. Telecom Corp,, 981 F.2d 305, 310 (8th

Cir. 1992).

Analysis

Defendants filed a Motion to Dismiss arguing that

plaintiffs' lawsuit should be dismissed because defendants have

immunity from suit under the Eleventh Amendment and because the

Feres Doctrine protects military decision from the type of

judicial scrutiny the plaintiffs seek.

Along with defendants, this Court has had difficulty

determining the nature of plaintiffs' cause of action. It is

clear, however, that plaintiffs are suing the Missouri National

Guard and defendant Pendergrass in his official capacity.’

The Eleventh Amendment bars suits for damages by citizens

against the State or state agencies. Edelman v. Jordan, 94 S. ct.

1347, 1357-58 (1974); Quern v. Jordan, 99 S.Ct. 1139, 1143

(1979). "This jurisdictional bar applies regardless of the

- Mature of the relief sought." Pennhurst State Sch, v. Halderman,

104 S.Ct. 900, 908 (1984) (citation omitted). Additionally, the

bar applies to state officials sued in their official capacity.

Will _y. Michigan Dept, of State Police, 109 S.Ct. 2304 (1989).

*Plaintiffs do not deny this assertion in their Suggestions ~

in Opposition.

Plaintiffs do not dispute that the Missouri Arny National

Guard is a state agency and that defendant Pendergrass is being

sued in his official capacity. Because the jurisdictional bar

provided by the Eleventh Amendment applies to any relief sought,

it is clear that no relief could be granted in this case and

defendants' Motion must be granted.

Further, plaintiffs' claims are barred by the Feres

Doctrine. This lawsuit arises out of plaintiff Newport's service

in the National Guard. The Feres doctrine established that

claims under the Federal Tort Claims Act, negligence claims,

claims brought under 42 U.S.C. § 1983, and Bivens claims are

nonjusticiable if injuries complained of arise out of the course

of service. Wood v. United States, 968 F.2d 738, 739 (8th Cir.

1992) (citing Feres vy. United States, 71 S.Ct. 153, 159 (1950)).

The law is clear that a plaintiff may not bring a lawsuit

that “requires the civilian court to second-guess military

decisions." United States vy, Shearer, 105 S.Ct. 3039,

3043) (1985) (citations omitted). See also, Chappell v. Wallace,

103 S.Ct. 2362, 2364 (1983) (Court dismissed lawsuit brought by

enlisted sailors for racial discrimination); Watson v. Arkansas

Nat'] Guard, 886 F.2d 1004, 1005 (8th Cir. 1989) (affirmed court's

dismissed lawsuit filed by National Guard officer against

superiors for racial and disability discrimination).

Because plaintiffs' claims arise out of plaintiff Newport's

guard service, they are nonjusticiable and defendants’ Motion

must be granted.

Conclusion .

For the reasons stated above,

It is hereby

ORDERED that defendants' Motion to Dismiss (doc. #15) is

granted. It is further

ORDERED that plaintiffs' se js dismissed.

ttt loll

V -

ca

"¢ SCOTT O. WRIGHT |

Senior United States Distrfct Judge

guly _!] _, 18996.

AO 450 (Rev. 5/85) Judgment ina Civil Case ©

United States District Courk

WESTERN DISTRICT OF MISSOURI

COLLEEN E. NEWPORT and

JAMES F. NEWPORT,

Plaintiffs,

V.

MISSOURI ARMY NATIONAL

GUARD, et al.,

Defendants.

JUDGMENT IN A CIVIL CASE

CASE NUMBER: 95-1164-CV-W-5

(} Jury Verdict. This action came before the Court for a trial by jury, The issues have been tried and the jury has rendered

its verdict.

Decision by Court. This action came to trial or hearing before the Court. The issues have been tried or heard and a

decision has been rendered.

ITISORDERED ANDADJUDGED that defendants' Motion to Dismiss (doc. #15)

is granted. It is further

ORDERED that plaintiffs' case is dismissed.

entered 0a.1/11/9

ue 17 1986. R. F. CONNOR

Date Clerk

i

(By) Deputy Clerk

ORIGINAL | #2

Biccaeeie sens

SUPREME COURT OF. THE UNITED STATES

OFFICE OF THE CLERK

WASHINGTON, DC 20543-0001

WILLIAM K. SUTER AREA CODE 202

CLERK OF THE COURT September 15, 1997 479-2011

Colleen E. Newport

405 Kingston Road

Blue Springs, MO 64015

RE: Colleen E. Newport, et vir. Missouri Army National

Guard, et al.

Dear Ms. Newport:

Your motion for leave to proceed as a veteran and your

typewritten petition for a writ of certiorari mailed September 9,

1997, was delivered to this office September 10, 1997, and must be

returned since no appendix to the petition was included.

Sincerely,

William K. Suter, Clerk

By:

Fucmes ff Sens

a cae ILENE TA APE LOOROIGT Pinan a cme am a

Francis J. Lorson™’

(202) 479-3024

Enclosures

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~Forallthe above reasons the petition fora -writ-of certiorart should be pranted—_

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Date

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