799 F.2d 99 (3rd Cir. 1986), 85-1664, Jorden v. National Guard Bureau

Docket Nº:85-1664.
Citation:799 F.2d 99
Party Name:Ulus JORDEN, Jr., Appellant, v. NATIONAL GUARD BUREAU, Departments of the Army and the Air Force; Emmett H. Walker, Jr., Chief, National Guard Bureau; Richard M. Scott, Major General (PA), The Adjutant General, Commonwealth of Pennsylvania; John D. Campbell, individually and as Colonel, Pennsylvania Air National Guard Base Detachment Commander; and
Case Date:August 27, 1986
Court:United States Courts of Appeals, Court of Appeals for the Third Circuit

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799 F.2d 99 (3rd Cir. 1986)

Ulus JORDEN, Jr., Appellant,


NATIONAL GUARD BUREAU, Departments of the Army and the Air

Force; Emmett H. Walker, Jr., Chief, National Guard Bureau;

Richard M. Scott, Major General (PA), The Adjutant General,

Commonwealth of Pennsylvania; John D. Campbell,

individually and as Colonel, Pennsylvania Air National Guard

Base Detachment Commander; and Henry C. Frisby,

individually and as Major, Pennsylvania Air National Guard

Chief, Administration, Appellees.

No. 85-1664.

United States Court of Appeals, Third Circuit

August 27, 1986

Argued June 3, 1986.

Rehearing and Rehearing In Banc Denied Oct. 23, 1986.

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Frank Finch, III (Argued), McDaniel, Dade, Wheeler & Walwyn, Philadelphia, Pa., for appellant.

Edward S.G. Dennis, Jr., U.S. Atty., Walter S. Batty, Jr., Asst. U.S. Atty., Chief of Appeals, Margaret L. Hutchinson, Asst. U.S. Atty., Philadelphia, Pa., Thomas M. Crowley (Argued), Office of the Attorney General, Harrisburg, Pa., Marilyn D. Barton, Major, USAF (Argued), Office of the Judge Advocate General, U.S. Air Force, Washington, D.C., for appellees.

Before GIBBONS, BECKER, and STAPLETON, Circuit Judges.


BECKER, Circuit Judge.

This case requires us to determine the susceptibility of National Guard officers to suits by guardsmen for damages and injunctive relief. Plaintiff, Ulus Jorden, discharged from both his military and civilian positions in the Pennsylvania Air National Guard ("PaANG"), sought damages against his superiors and reinstatement to both positions. Relying on Chappell v. Wallace, 462 U.S. 296, 103 S.Ct. 2362, 76 L.Ed.2d 586 (1983), the district court dismissed plaintiff's case under Fed.R.Civ.P. 12(B).

Although we find that the district court acted correctly in dismissing Jorden's claims for damages, we conclude that it erred in dismissing his claims for injunctive relief, i.e., reinstatement, accordingly, we shall affirm in part and reverse in part and remand this case for further proceedings.

Part I of this opinion sets forth the necessary background--the structure of the National Guard and the facts and procedural history of this case. Part II begins with a brief history of the case law concerning the immunity of military officers from damages claims, and then applies that body of law to the instant case. Similarly, Part III begins with a brief history of the case law concerning the reviewability of claims for injunctive relief against the military, and then considers its applicability to Jorden's claims for reinstatement. 1

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I. Background

A. Structure of the National Guard

As this court noted recently in Johnson v. Orr, 780 F.2d 386, 388 (3d Cir.1986), the National Guard has an "unusual 'hybrid' status as an agency with both federal and state characteristics." The Guard is the modern successor to the state militia, see Engblom v. Carey, 522 F.Supp. 57, 65 (S.D.N.Y.1981), and all fifty states and Puerto Rico have their own Guard. Article 1, Section 8, clause 16 of the Constitution places the power of appointing personnel to the state militia in the hands of the state. Guard members are called out for roughly two weeks a year of military training. In addition, governors may call out their state Guard at any time for state emergencies such as riots and floods. However, there is a federal component to the Guard as well. The National Guard Bureau, an adjunct of the United States Departments of the Army and Air Force, gives Guard personnel federal recognition as part of either the Army National Guard of the United States or the Air National Guard of the United States ("ANGUS"). In addition, the President may call the Guard into national service, 10 U.S.C. Sec. 3495 (1982).

The Guard's status is further complicated by its having a mixture of military and civilian elements. In addition to its military complement, the Guard hires full-time civilian technicians. The technician program provides various services critical to the Guard's mission: maintenance of equipment and facilities, support of aircraft operations, and clerical functions. The technician program too involves federal and state elements. Although the 1968 National Guard Technicians Act, 32 U.S.C. Sec. 709 (1982), made civilian technicians federal employees, the technician program is administered at the state level. 2 The adjutant general, a state officer, is in charge of personnel matters. Finally, and significant in this case, in order to be eligible for a technician position, one must be a Guard military member. 32 U.S.C. Sec. 709(b). A Guard technician is automatically dismissed from his civilian technician position if he loses his military membership, 32 U.S.C. Sec. 709(e)(6), and can otherwise be dismissed "for cause." 32 U.S.C. Sec. 709(e)(3).

B. Facts And Procedural History

In 1956 plaintiff-appellant Jorden became the first black member to enlist in PaANG. Two years later he became a full-time civilian technician in PaANG as well. For the next twenty-five years he served in both capacities without incident. Beginning in 1981, however, Jorden became either a "whistleblower" or a "troublemaker," depending on whom one believes. He launched a series of protests alleging various abuses by his superiors, including impermissible expenditure of Guard funds and discriminatory treatment of him personally.

Jorden alleges that his complaints were legitimate, that they were not followed up adequately, and that instead they led to a campaign of harassment against him. In October, 1984, he was called alone (without his unit), in an Order of the Governor, to

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active duty for twenty-three days of "special training." The order specified that, during the twenty-three day period, Jorden was to report to the Malcolm Grow Medical Center for psychiatric evaluation.

Jorden refused to comply, believing that the governor was not empowered to call out a single guardsman for such a special session. Following Jorden's non-compliance, PaANG Adjutant General Richard M. Scott dismissed him from his military position in PaANG. Thereupon, Jorden's technician employment was automatically terminated, because, as we have noted, only military members of the Guard are eligible for technician employment. At the time of his discharge, Jorden was a master sergeant in the PaANG military unit and an assistant office manager in the technician program.

Jorden then brought a civil rights suit in the United States District Court for the Eastern District of Pennsylvania alleging that his various superiors had engaged in a conspiracy to harass him and to discharge him on the basis of race and in retaliation for the exercise of his first amendment rights. Specifically, he asserted claims for damages under 42 U.S.C. Secs. 1983, 1985 and 1986 against General Scott, Colonel John D. Campbell and Major Henry C. Frisby, all of whom were both his military officers and his civilian supervisors; a pendent state common law claim of defamation against Scott, Campbell and Frisby; and claims for reinstatement against the aforementioned defendants, as well as against Emmett Walker, Chief of the National Guard Bureau ("NGB") and against the NGB itself. 3

Defendants moved for dismissal of plaintiff's entire case, invoking both Fed.R.Civ.P. 12(b)(1) and (6). As we have noted, the district court granted the motion to dismiss, 4 finding that Jorden's federal claims were barred by Chappell v. Wallace, 462 U.S. 296, 103 S.Ct. 2362, 76 L.Ed.2d 586 (1983), and then dismissing the state common law claim because pendent jurisdiction was lacking. 5

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II. Plaintiff's Damages Action

A. History of the Availability of Damages Suits Against Military Officers

Military officers have not always been afforded absolute immunity from damages suits. The leading nineteenth century case is Wilkes v. Dinsman, 48 U.S. (7 How.) 89, 12 L.Ed. 618 (1849), after remand Dinsman v. Wilkes, 53 U.S. (12 How.) 390, 13 L.Ed.1036 (1851), in which the Court held that a naval commander alleged to have flogged and imprisoned an enlisted seaman could be held liable for damages at common law.

The ability of servicemen and other aggrieved persons to recover damages in a military context was dealt a severe blow by the Supreme Court's decision in Feres v. United States, 340 U.S. 135, 71 S.Ct. 153, 95 L.Ed. 152 (1950). In Feres, the Court held that the United States was immune from liability under the Federal Tort Claims Act for torts arising out of or incident to military service. The Court was concerned, inter alia, with deference to Congress, which had provided a system of military remedies. Although Feres does not explicitly rely on the special requirements of military discipline, in subsequent cases the Court has observed that "Feres seems best explained by the 'peculiar and special relationship of the soldiers to his superiors, [and] the effect of the maintenance of such suits on discipline....' " United States v. Muniz, 374 U.S. 150, 162, 83 S.Ct. 1850, 1858, 10 L.Ed.2d 805 (1963), quoting United States v. Brown, 348 U.S. 110, 112, 75 S.Ct. 141, 143, 99 L.Ed. 139 (1954). Feres did not address the propriety of common law suits against individual officers, such as the action brought in Wilkes.

The availability of damages relief against military officers was subsequently affected by two Supreme Court cases that did not involve military officers but whose holdings concerned damages actions against government officials in general. In Monroe v. Pape, 365 U.S. 167, 81 S.Ct. 473, 5 L.Ed.2d 492 (1961), the Court greatly expanded the potential liability of state officers under Sec. 1983 6 and in Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388, 91 S.Ct. 1999,...

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