808 F.2d 417 (5th Cir. 1987), 86-4128, Holdiness v. Stroud

Docket Nº:86-4128
Citation:808 F.2d 417
Party Name:Michael G. HOLDINESS, Plaintiff-Appellant, v. A.M. STROUD, Jr., et al., Defendants-Appellees.
Case Date:January 23, 1987
Court:United States Courts of Appeals, Court of Appeals for the Fifth Circuit

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808 F.2d 417 (5th Cir. 1987)

Michael G. HOLDINESS, Plaintiff-Appellant,


A.M. STROUD, Jr., et al., Defendants-Appellees.

No. 86-4128

United States Court of Appeals, Fifth Circuit

January 23, 1987

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[Copyrighted Material Omitted]

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Paul Henry Kidd, Kidd & Kidd, Monroe, La., for plaintiff-appellant.

Joseph S. Cage, Jr., Re. S. Atty., D.H. Perkins, Jr., John R. Halliburton, Asst. U.S. Attys., Shreveport, La., for all defendants-appellees.

Charles E. Welsh, Asst. Atty. Gen., Shreveport, La., for State of Louisiana.

Appeal from the United States District Court for the Western District of Louisiana.

Before RUBIN, RANDALL, and HIGGINBOTHAM, Circuit Judges.

ALVIN B. RUBIN, Circuit Judge:

A former member of the National Guard, who was also employed as a civilian technician for the Guard, seeks to obtain damages from a number of his superior officers for alleged violation of his federal constitutional and statutory rights when he was barred from reenlisting, being thus involuntarily discharged from the Guard and from his employment as a civilian technician. Although his complaint invoked numerous bases for jurisdiction and asserted a number of separate claims, the district judge dismissed his suit for failure to state a claim for which relief can be granted in any respect. We affirm the judgment of the district court but modify it to make clear that the dismissal is without prejudice to the plaintiff's right to seek judicial review of any action taken by the Army Board for the Correction of Military Records.

I. Facts As Set Forth by the Complaint

Because the suit was dismissed for failure of the complaint to state a claim for which relief can be granted, we recite the facts as alleged. Michael G. Holdiness was a military member of the Louisiana Army National Guard, Company D, 528 Engineering Battalion in Monroe, Louisiana, for approximately fourteen years before his involuntary discharge on February 27, 1983. He had been employed as a civilian technician under the National Guard Technician's Act, 32 U.S.C. Sec. 709, for eleven years.

Holdiness' immediate supervisor, Charles H. Dean, who was also a civilian technician and the general mechanic foreman for Company D, discriminatorily denied him promotions and gave him an arbitrarily low job evaluation report, a score of "61," which, although acceptable, made him subject to transfer to Alexandria, Louisiana, which is more than 100 miles from his home. If Holdiness' performance had been rated fairly, he would not have received a score that made him susceptible to being transferred. Dean's actions were motivated by his dislike of Holdiness' father and his desire to see Holdiness transferred to another Guard unit.

Holdiness attempted to appeal his performance evaluation through administrative channels, but various other National Guard officials, who are also named as defendants, retaliated because he had the

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"audacity to challenge the 'Guard's' actions." Holdiness then sought assistance from Louisiana State Senator David Ginn. Senator Ginn wrote the Louisiana Adjutant General, A.M. Stroud, J., who is also named as a defendant, and the two United States Senators from Louisiana to enlist their efforts on behalf of Holdiness. The various defendants became so enraged at Senator Ginn's efforts that they undertook retaliatory measures against Holdiness, and, as a result, the officer in charge of civilian assistants reprimanded him. A Guard Lieutenant, Joseph P. Roberts, who is also joined as a defendant, informed Holdiness that he would be barred from re-enlisting as a military member of the Guard, effective February 27, 1983. The Director of Manpower Management for the Guard, Colonel Gerard A. Mumphrey, another defendant, advised Holdiness that his job as a civilian technician would be terminated on the same date because, under the National Guard Technician's Act, a civilian technician must be dismissed if he is no longer a military member of the Guard. 1

Holdiness' father died after Holdiness had received his poor performance rating and before he was dismissed.

After he had been barred from reenlisting and his civilian employment had been terminated, Holdiness filed this suit, relying on 42 U.S.C. Secs. 1983, 1985; the Federal Tort Claims Act, 28 U.S.C. Sec. 2671 et seq.; and Louisiana state law, La.Civ.Code Ann. art. 2315 (West 1979). Holdiness asserted that the defendants' unconstitutional actions were the proximate cause of his father's death. He sought $1,000,000 in damages for loss of past and future wages, pain and suffering, and loss of his father's affection and companionship. In his response to the defendant's motion to dismiss, Holdiness also alleged violations of his federal constitutional rights, citing Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics. 2

Holdiness appeals only the dismissal of those defendants who were considered federal employees by the district court, Dean, his immediate supervisor; Captain Phillip L. Arthur, a civilian technician supervisor; Colonel Gerard A.M. Mumphrey, the Guard's Director of Manpower Management; and Major General A.M. Stroud, Jr., the officer in charge of civilian technicians and the man who had responded to the Louisiana State Senator's intercession by writing the Governor of Louisiana. As we have noted, Holdiness has invoked a variety of constitutional and statutory bases for relief, casting a tangled net of claims. Separating their strands, we examine each individually to determine whether any is strong enough to retain the defendants.

II. Status of the National Guard

The constitution empowers Congress "to provide for organizing, arming, and disciplining, the Militia, and for governing such Part of them as may be employed in the Service of the United States, reserving to the States respectively, the Appointment of the Officers, and the Authority of Training the Militia according to the discipline prescribed by Congress." 3

As the Supreme Court related in Maryland v. United States:

From the days of the Minutemen of Lexington and Concord until just before World War I, the various militias embodied the concept of a citizen army, but lacked the equipment and training necessary for their use as an integral part of the reserve force of the United States Armed Forces. 4

The National Defense Act of 1916 materially altered the status of the militias by constituting them the National Guard. Pursuant to the power vested in Congress

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by the Constitution, the Guard was to be uniformed, equipped, and trained in much the same way as the regular army, subject to federal standards and capable of being "federalized" soldiers. Congress also authorized the allocation of federal equipment to the Guard, and provided federal compensation for members of the Guard, supplementing any state emoluments. The Guard is thus the successor to the State militias, but it is now a hybrid state-federal organization, 5 for the Governor remains in charge of the National Guard in each state except when the Guard is called into active federal service. In most states the Governor administers the Guard through the State Adjutant General, who was required by the 1916 Act to report periodically to the National Guard Bureau, a federal organization, on the Guard's reserve status.

"The basic structure of the 1916 Act has been preserved to the present day." 6 The National Guard is today, therefore, an integral part of this country's military structure. It is "[a]n essential reserve component of the Armed Forces of the United States, available with regular forces in time of war." 7

III. Sec. 1983

Whether Holdiness has stated a claim for which relief might be granted under 42 U.S.C. Sec. 1983 turns on whether he alleges that state action has deprived him of an interest that is constitutionally recognized as life, liberty, or property without due process of law.

  1. State Action

    This circuit, like other federal circuits, has several times reviewed the attempts of Guard personnel to invoke judicial aid. The state-national character of the Guard as well as the requirements of Sec. 1983, which affords relief only for state action, require us to focus separately on two questions: whether the defendants' actions constitute actions of the State of Louisiana, a question distinct from whether Holdiness as a civilian technician is a federal or state employee and whether, as a military member of the Guard, he is in federal or state military service.

    In NeSmith v. Fulton, 8 we held that the Adjutant General of a state is "at least in part a state officer." Relying on Davis v. Vandiver, 9 we said that, although the National Guard Technician's Act confers federal status on civilian technicians "while granting administrative authority to State officials, headed in each state by the Adjutant General," 10 by virtue of the hybrid character of the Guard, the Adjutant General is, at least for some purposes, simultaneously a federal agent. A charge that the Adjutant General deprived a member of the Guard of his constitutional or federal statutory rights, therefore, satisfies the state action requirement of Sec. 1983. 11

    In addition to suing the Adjutant General, NeSmith also sued various Guard members, including a captain in his Air National Guard squadron, the Personnel Officer for the Guard, the Commanding Officer of his squadron, and the chief of central base administration of his fighter wing. In NeSmith we held that the actions of such officers must be considered state action for at least some purposes, because "in removing NeSmith from his civilian technician position, the defendant adjutant general and the other defendants, as his agents, acted sufficiently under

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    color of state law for purposes of Section 1983." 12

    The district court, therefore, was in error in holding that, as a matter of law, the four federal defendants were not amenable to...

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