Knutson v. Wisconsin Air Nat. Guard

• Decision Date: 09 June 1993
• Docket Number: No. 92-1118,92-1118
• Parties: Reid KNUTSON, Plaintiff-Appellant, v. WISCONSIN AIR NATIONAL GUARD and Gerald D. Slack, Defendants-Appellees.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 765

995 F.2d 765

Reid KNUTSON, Plaintiff-Appellant, v. WISCONSIN AIR NATIONAL GUARD and Gerald D. Slack Defendants-Appellees.

No. 92-1118.

United States Court of Appeals Seventh Circuit.

Argued Jan. 4, 1993.

Decided June 9, 1993.

Patrick Berigan (argued), Angermeier & Rogers, Milwaukee, WI, for Reid Knutson.

Nadim Sahar, Asst. Atty. Gen. (argued), Wisconsin Dept. of Justice, Milwaukee, WI, for Wisconsin Air Nat. Guard.

Nadim Sahar, Asst. Atty. Gen., Bruce D. Schrimpf, Wisconsin Dept. of Justice, Milwaukee, WI, for Gerald D. Slack.

Before POSNER, FLAUM, and KANNE, Circuit Judges.

FLAUM, Circuit Judge.

Reid Knutson was assigned to the Wisconsin Air National Guard ("WIANG") on October 16, 1983. In August of 1989, after serving various active and reserve guard ("AGR") tours, Colonel Knutson received orders extending his AGR tour from October 16, 1989 through October 15, 1994. This order contained the specific condition "unless sooner relieved by competent authority." At that time Knutson was serving as the Commander of the Civil Engineering Squadron of the 128th Air Refueling Group. On December 18, 1989, Knutson received a termination letter from Major General Raymond A. Matera, Adjutant General of WIANG. ¹ This letter advised Knutson that the Adjutant General was considering the rescission of the AGR orders. In accordance with Chapter 6 of the Air National Guard Regulations ("ANGR") 35-03, Matera allowed Knutson until December 27, 1989 to rebut the proposed action. Knutson submitted a rebuttal letter to Matera in which he challenged the proposed termination and requested specific reasons for the action.

Subsequently, Colonel Eugene Schmitz forwarded to the appellant reasons for termination. Among the reasons documented were the failure to serve proper real estate documents necessary to complete a water main project, the failure to administer properly his command, the failure to produce a closure plan for a landfill problem, and gross fiscal mismanagement. Colonel Schmitz also attested that he had counseled Knutson on four separate occasions about his performance. These counseling sessions addressed instances of drinking by those under his command, morale and administration difficulties, lack of adherence to the established chain of command, and favoritism. In his rebuttal letter, Knutson specifically denied each allegation; in addition, he alleged that he had been denied counsel, access to documents, and a termination hearing. WIANG terminated Knutson on February 28, 1990.

Knutson then filed this action in Milwaukee County Circuit Court, and WIANG removed it to the district court. In his amended complaint, Knutson alleged that his termination infringed on his liberty, property, and due process rights in violation of 42 U.S.C. § 1983, and requested injunctive relief, monetary damages, and reinstatement. In the district court, WIANG moved for summary judgment or, in the alternative, dismissal for lack of jurisdiction. The court dismissed the damages claim and granted summary judgment in favor of WIANG on the claims for injunctive relief.

I.

A section 1983 suit presumes some form of state action. Whether WIANG in fact acted under color of state law poses a challenging question because of the hybrid nature of the National Guard. The Guard occupies a distinct role in the federal structure that does not fit neatly within the scope of either state or national concerns. In each state the National Guard is a state agency, under state authority and control. At the same time, federal law accounts, to a significant extent, for the composition and function of the Guard. Accordingly, the Guard may serve the state in times of civil strife within its borders while also being available for federal service during national emergencies.

Both parties initially argued that Knutson's status as a federal versus a state employee is relevant for determining whether section 1983 applies. WIANG has relied on the governing federal statutory scheme, see 10 U.S.C. § 101(42), to label Knutson a federal employee. Knutson, on the other hand, points to a Wisconsin statute that distinguishes federal armed service employees from members of state National Guards. See Wis.Stat. § 21.025 (1992). Knutson's employment status, however, is not pertinent in evaluating the availability of section 1983. The relevant inquiry is whether WIANG, and Adjutant General Slack in particular, were acting under color of state or federal law when they terminated Knutson's Guard tour.

WIANG contends that numerous federal statutes and regulations affect its operation. For example, the federal government provides salaries, benefits, and supplies to fulltime Guard officers and technicians. See, e.g., 32 U.S.C. § 107 (West.Supp.1992). If a state National Guard elects, for some reason, not to comply with federal regulations, that state risks forfeiture of federal monies and other privileges. See 32 U.S.C. § 108. More specifically, Adjutant General Slack was acting pursuant to regulations adopted by the Department of Defense. See ANGR 35-03. Knutson, on the other hand, argues that the totality of the circumstances makes clear that the state law character of Slack's actions predominates. First, Wisconsin has adopted all applicable federal rules and regulations for its National Guard. See Wis.Stat. §§ 21.01, 21.36. Furthermore, under state law, the governor acts as the commander-in-chief of WIANG. Id. at § 21.09. His authority includes appointing an Adjutant General, the person answering for Knutson's termination.

No set formula exists for determining whether the representatives of an agency with both state and federal characteristics act under color of state law. Our evaluation of whether particular conduct constitutes action taken under color of state law focuses on the nature of that action and functional capacity of the actor. See, e.g., Lake Country Estates, Inc. v. Tahoe Regional Planning Agency, 440 U.S. 391, 399-400, 99 S.Ct. 1171, 1176, 59 L.Ed.2d 401 (1979). We do not ask whether the conduct was pursuant to a state statute but "whether there is a sufficiently close nexus between the State and the challenged action," Jackson v. Metropolitan Edison Co., 419 U.S. 345, 351, 95 S.Ct. 449, 453, 42 L.Ed.2d 477 (1974); cf. United States v. Orleans, 425 U.S. 807, 815, 96 S.Ct. 1971, 1976, 48 L.Ed.2d 390 (1976) (inquiry is whether "day-to-day operations are supervised by the Federal Government").

The facts here present the rather straightforward case of state officers exercising their state authority to effectuate the termination of state militia personnel. Although WIANG argues that federal law governed its conduct by virtue of the overarching scheme of federal authorization for the Guard, the fact that Wisconsin adopts and WIANG opts to utilize federal substantive and procedural rules in the exercise of its authority does not alter the state-law character of its actions. See, e.g., Schultz v. Wellman, 717 F.2d 301, 305 (6th Cir.1983); Lasher v. Shafer, 460 F.2d 343, 346 (3d Cir.1972). No one is claiming that the Guard had been called into service by the federal government at the time of the termination. Moreover, WIANG is a part of the Wisconsin militia, with the governor serving as commander-in-chief. The Adjutant General, an appointee of the governor, effected the termination of Knutson. Slack's actions, administered at the state level, are therefore under color of state law.

II.

Whether Knutson, as a member of the National Guard, may invoke section 1983 for his termination by his superiors at WIANG also presents a question of the proper scope of judicial inquiry. In the present case, the district court employed the analysis elaborated by the Fifth Circuit in Mindes v. Seaman, 453 F.2d 197 (5th Cir.1971), in finding Knutson's claim for injunctive relief to be justiciable. We disagree with this conclusion and with the adoption of the four-factor analysis in Mindes. ² As the Third Circuit has pointed out, the Mindes approach erroneously "intertwines the concept of justiciability with the standards to be applied to the merits of the case." Dillard v. Brown, 652 F.2d 316, 323 (3d Cir.1981); accord Kreis v. Secretary of the Air Force, 866 F.2d 1508, 1510 (D.C.Cir.1989). Rather than embracing the Mindes balancing test, we prefer a different approach. Our inquiry does not involve a balancing of individual and military interests on each side, but rather a determination of whether the military seeks to achieve legitimate ends by means designed to accommodate the individual right at stake to an appropriate degree.

A.

Although the treatment of justiciability by the parties in their briefs is sparse, WIANG argued below that staffing and the nondiscriminatory administration of its regulations governing the retention of personnel are of sufficient importance to preclude our review at this stage. Traditionally, support for the view that claims concerning the composition of the military do not lie within the purview of the judiciary have been found in Orloff v. Willoughby, 345 U.S. 83, 73 S.Ct. 534, 97 L.Ed. 842 (1953) and Gilligan v. Morgan, 413 U.S. 1, 93 S.Ct. 2440, 37 L.Ed.2d 407 (1973). In an oft-quoted passage from Orloff, the Supreme Court noted:

[J]udges are not given the task of running the Army. The responsibility for setting up channels through which [complaints of discrimination, favoritism, etc.] can be considered and fairly settled rests upon the Congress and upon the President of the United States and his subordinates. The military constitutes a specialized community governed by a separate discipline from that of the civilian. Orderly government requires that the judiciary be as scrupulous not to interfere with legitimate Army matters as the Army must be scrupulous not to intervene in judicial matters.

Orloff, 345 U.S. at 93-94, 73 S.Ct. at 540. But reading Orloff to support broad deference to the military ignores the narrow context in which...