NeSmith v. Fulton

Decision Date07 April 1980
Docket NumberNo. 78-1746,78-1746
PartiesCharles A. NeSMITH, Plaintiff-Appellant, v. Clyde E. FULTON et al., Defendants-Appellees.
CourtU.S. Court of Appeals — Fifth Circuit

Stewart R. Brown, Roger Mills, Macon, Ga., for plaintiff-appellant.

Arthur K. Bolton, Atty. Gen., Michael J. Bowers, Robert S. Stubbs, II, Don A. Langham, John C. Jones, Asst. Attys. Gen., Atlanta, Ga., for defendants-appellees.

Appeal from the United States District Court for the Middle District of Georgia.

Before GEE, TJOFLAT and ANDERSON, Circuit Judges.

GEE, Circuit Judge:

Appellant Charles A. NeSmith was employed as a civilian technician in the Georgia Air National Guard. He was also a military member of the 202nd Electronics Installation Squadron of the Guard. On October 15, 1976, NeSmith was dismissed from his position as a civilian technician, and on October 22, 1976, he was denied reenlistment and discharged as a military member of the Georgia Air National Guard. NeSmith brought suit under 42 U.S.C. § 1983 to challenge his civilian dismissal and denial of his military reenlistment, alleging that these actions were the product of a "malicious and vindictive" campaign against him, led by the recently appointed commander of his squadron, Clyde E. Fulton, with the acquiescence of Fulton's superior officers. The trial court dismissed NeSmith's case on the pleadings, and he now appeals that action.

Preliminarily, we must determine whether NeSmith's appeal is timely. Rule 4(a) of the Federal Rules of Appellate Procedure requires that notice of appeal in civil cases be filed within 30 days of entry of the judgment or order from which an appeal is sought, unless the United States or an officer or agency thereof is a party, in which case appeal may be filed within 60 days. NeSmith filed his appeal 34 days after the entry of judgment against him. Since "the time requirement within which an appeal must be taken is mandatory and jurisdictional," Gulf-Tampa Dry Dock Co. v. The Vessel VIRGINIA TRADER, 435 F.2d 150, 151 (5th Cir. 1970), this court has appellate jurisdiction over the instant case only if NeSmith or one or more of the defendants 1 are officers or agents of the United States. See, e. g., Funderburk v. Wainwright, 484 F.2d 681 (5th Cir. 1973) (dismissing appeal for want of jurisdiction when notice of appeal not filed within 30 days); Tribbitt v. Wainwright, 462 F.2d 600, 601 (5th Cir. 1972).

As a civilian technician employed under the National Guard Technicians Act, 32 U.S.C. §§ 709 et seq. (1976), NeSmith enjoyed the status of federal employee. 32 U.S.C. § 709(d) (technician is employee of Department of Army or of Air Force); see Davis v. Vandiver, 494 F.2d 830, 832 (5th Cir. 1974) ("The National Guard Technician Act of 1968, 32 U.S.C.A. § 709 . . . confer(red) federal status on civilian technicians . . . ."); Chaudoin v. Atkinson, 494 F.2d 1323, 1327 (3d Cir. 1974) (under 32 U.S.C. § 709 a civilian technician "is deemed to be a federal employee"). However, NeSmith's federal employee status did not make him an "officer or agency" of the United States for purposes of Rule 4(a) of the Federal Rules of Appellate Procedure. The role of civilian technician did not vest any managerial decisions or other significant authority in him, see Buckley v. Valeo, 424 U.S. 1, 125-126, 96 S.Ct. 612, 685, 46 L.Ed.2d 659 (1976) ("officer of United States" means appointee exercising significant authority pursuant to the laws of the United States). Nor did a suit by NeSmith involve the United States as a real party in interest requiring various government officials to review the decision to appeal. See Michaels v. Chappell, 279 F.2d 600, 602 (9th Cir. 1960), cert. denied, 366 U.S. 940, 81 S.Ct. 1663, 6 L.Ed.2d 851 (1961) (person not "official or agency" of United States for purposes of 60-day time limit on filing appeal when suit by or against him does not involve interests of the United States that require different echelons of government officials to decide whether to appeal an adverse judgment, and instead involves only interest of individual, permitting him alone to make decisions with respect to appeal); Hare v. Hurwitz, 248 F.2d 458, 461-62 (2d Cir. 1957). In addition, NeSmith was not an officer of the United States by virtue of his military membership in the Georgia Air National Guard, for he had not been ordered into active service. Chaudoin v. Atkinson, supra 494 F.2d at 1329; Williams v. United States, 189 F.2d 607 (10th Cir. 1951). NeSmith's participation as a party thus did not authorize a 60-day time limit for filing appeal in this case. For his appeal to have been timely, then, one of the defendants must qualify as an officer or agency of the United States.

Among those named as defendants by NeSmith was the adjutant general of Georgia. It is true that an adjutant general is at least in part a state officer. In Davis v. Vandiver, supra, 494 F.2d at 832, we observed:

The principal purpose of the National Guard Technicians Act of 1968, 32 U.S.C. § 709 et seq., was to create a bifurcated nature of technician employment to confer federal status on civilian technicians while granting administrative authority to State officials, headed in each state by the Adjutant General. (Emphasis in original.)

The legislative history of the National Guard Technicians Act also states clearly that Congress viewed the adjutants general as state officers. House Report No. 1823 stated that the authority of the adjutants general under 32 U.S.C. § 709 to employ and administer the civilian technician program was intended to

(a) recognize the State character of the Guard and (b) meet the requirement of giving the adjutants general (who are State officers) the statutory function of employing federal employees. H.R.Rep.No. 1823, 90th Cong. 2nd Sess. (1968); 1968 U.S.Code Cong. & Admin.News, pp. 3318, 3330.

However, that an adjutant general is a state officer does not preclude his simultaneously being a federal agency. The Third Circuit, in Chaudoin v. Atkinson, supra, 494 F.2d at 1329, held that although an adjutant general was a state rather than a federal officer unless called into active service, he was also an "agency or agent" of the United States because "32 U.S.C. § 709 charges . . . (him) with employment and administration of the civilian technicians who are federal employees." See also Vargas v. Chardon, 405 F.Supp. 1348, 1351-52 (D.P.R.1975). The conclusion that an adjutant general is a federal agency as well as a state officer reflects the hybrid state-federal character of the National Guard and of the role of adjutants general in administering it. We therefore adopt it and find NeSmith's appeal timely because brought in a suit to which a federal agency is a party. Having jurisdiction of the appeal, we turn now to assess the merits of the instant action.

NeSmith contends that his removal from his position as a civilian technician in the Georgia Air National Guard violated his constitutional due process rights because it was arbitrarily and capriciously based on his superior officers' hostility towards him. 2 Relying on Tennessee v. Dunlap, 426 U.S. 312, 96 S.Ct. 2099, 48 L.Ed.2d 660 (1976), which held that a civilian technician loses any entitlement to his position when his enlistment as a military member of the National Guard ends, 3 the trial judge dismissed this claim in the mistaken belief that NeSmith had been terminated as a civilian technician only after he had been denied reenlistment and discharged as a military member of the Georgia Air National Guard, and was thus without entitlement to civilian technician employment.

However, NeSmith was in fact dismissed from his position as a civilian technician on October 15, 1976, and was not terminated as a military member of the Georgia Air National Guard until one week later, on October 22, 1976. During his term of enlistment in the National Guard, a civilian technician can be separated from his technician employment by the adjutant general only "for cause" 4 or for failure to meet military security standards. 5 Therefore, while NeSmith was a military member of the Georgia Air National Guard otherwise eligible for continued employment under 32 U.S.C. §§ 709(e)(1) and (2), he had a protected property 6 interest in his civilian technician employment that could not be denied absent a justified finding of "cause" for removal following a due process hearing. See Tennessee v. Dunlap, supra, 426 U.S. at 316, 96 S.Ct. at 2101 (property interest created by 32 U.S.C. § 709(e) (3) in continued employment absent "cause" for removal during guardsman's term of enlistment); Arnett v. Kennedy, 416 U.S. 134, 151-156, 94 S.Ct. 1633, 1643-45, 40 L.Ed.2d 15 (1974); Perry v. Sindermann, 408 U.S. 593, 599-601, 92 S.Ct. 2694, 2698-2700, 33 L.Ed.2d 723 (1972); Davis v. Vandiver, 494 F.2d 830, 832-33 (5th Cir. 1974). NeSmith's claim that he was terminated for arbitrary and capricious reasons rather than for cause thus states a claim under 42 U.S.C. § 1983 if the defendants acted under color of state law in cancelling his civilian technician employment.

We find that the state action requirement for a § 1983 cause of action is met in this case. As previously discussed, the defendant Adjutant General of Georgia acts as a state officer as well as a federal agent in administering the civilian technician program. Indeed, the legislative history of the National Guard Technicians Act explicitly states that the Act provides for the exercise of the adjutant general's administrative authority over the technician program to remain "as a matter of law . . . at the State level." H.R.Rep.No.1823, 90th Cong., 2nd Sess. (1968), 1968 U.S.Code Cong. & Admin.News, p. 3324. See also id. at 3319. Consequently, in removing NeSmith from his civilian technician position the defendant adjutant general and the other defendants, as his agents, acted sufficiently 7 under color of state law 8 for purposes of Section 1983....

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