Martelon v. Walker, Civ. A. No. 81-C-2196.

• Decision Date: 05 August 1983
• Docket Number: Civ. A. No. 81-C-2196.
• Parties: Leo L. MARTELON, Plaintiff, v. Emmet H. WALKER, Jr., Director, National Guard Bureau, John L. France, Adjutant General, Colorado Department of Military Affairs; William K. White, Paul A. Parsons, Stephen T. Erickson, and James T. Miller, Defendants.
• Court: U.S. District Court — District of Colorado

568 F. Supp. 672

Leo L. MARTELON, Plaintiff, v. Emmet H. WALKER, Jr., Director, National Guard Bureau, John L. France, Adjutant General, Colorado Department of Military Affairs; William K. White, Paul A. Parsons, Stephen T. Erickson, and James T. Miller, Defendants.

Civ. A. No. 81-C-2196.

United States District Court, D. Colorado.

August 5, 1983.

Barry D. Roseman, Denver, Colo., for plaintiff.

William F. Eggert, Deana R. Willingham, Hall & Evans, Nancy E. Rice, Asst. U.S. Atty., Maurice Knaizer, Asst. Atty. Gen., Denver, Colo., for defendants.

ORDER

CARRIGAN, District Judge.

Plaintiff, Leo L. Martelon, filed this action seeking relief from his involuntary reassignment within and subsequent termination from the Colorado Army National Guard (Guard). Defendants are the plaintiff's supervisors in the Guard. Jurisdiction is founded on 28 U.S.C. §§ 1331, 1343(3).

The parties have filed cross-motions for summary judgment supported by extensive memoranda and exhibits. On July 28, 1983, I heard testimony and received evidence on these motions. The issues raised are ripe for determination.

Martelon sought full-time civilian employment in 1974 as an administrative supply technician for the Guard. A prerequisite to obtaining this civilian employment was prior enlistment for military service in the Guard. Martelon enlisted in the Guard as a staff sergeant on November 1, 1974, and was employed as an administrative supply technician starting on November 3, 1974.

Plaintiff's employment as a civilian technician required that he supervise the military materiel for the unit to which he was assigned. On June 21, 1983, he was reassigned involuntarily from the 220th Military Police Company to the 193rd Military Police Battalion. Plaintiff's civilian employment was terminated on August 1, 1983, because his new assignment at the 193rd was incompatible with his continued employment as an administrative supply technician for the 220th. No comparable civilian job was available with the 193rd.

Plaintiff here asserts three claims for relief. First, he asserts a civil rights claim under 42 U.S.C. § 1983. He contends that he had a property right in continued civilian employment and the defendants' assigning him to a different post, thus "taking" his job rights, without a hearing, violated due process. Plaintiff seeks reinstatement to his civilian employment, compensatory damages, and punitive damages.

In considering claims of this nature, courts must exercise caution and self restraint to avoid interfering with military affairs. The United States Constitution grants control of the military to Congress, not the courts. U.S. Const. Art. 1, § 8, cls. 12-14. "Civilian courts must, at the very least, hesitate long before entertaining a suit which asks the court to tamper with the established relationship between enlisted military personnel and their superior officers; that relationship is at the heart of the necessarily unique structure of the military establishment." Chappell v. Wallace, ___ U.S. ___, ___, 103 S.Ct. 2362, 2365, 76 L.Ed.2d 586 (1983).

The Constitution grants Congress broad power "to provide for organizing, arming, and disciplining ..." the National Guard. U.S. Const. Art. 1, § 8, cl. 16. "It would be difficult to think of a clearer example of the type of government action that was intended by the Constitution to be left to the political branches directly responsible — as the Judicial Branch is not — to the electoral process. Moreover, it is difficult to conceive of an area of governmental activity in which the courts have less competence." Gilligan v. Morgan, 413 U.S. 1, 10, 93 S.Ct. 2440, 2446, 37 L.Ed.2d 407 (1973).

In Gilligan, the Supreme Court determined that the District Court had no authority to grant relief for the National Guard's alleged violations of 42 U.S.C. § 1983. That case dictates the result here. I find and conclude that Martelon's claim seeking relief for alleged violations of 42 U.S.C. § 1983 raises issues not appropriate for determination in this court. A federal trial judge is not competent to review decisions of Army National Guard officers in assigning personnel, at least in the circumstances here presented. There is no genuine issue as to any material fact. Defendants are entitled to judgment as a matter of law on this claim. F.R.Civ.P. 56(b). Thus, the defendants' motion for summary judgment on the plaintiff's first...