Boyle v. Burke, 90-1530

• Decision Date: 04 October 1990
• Docket Number: No. 90-1530,90-1530
• Citation: 925 F.2d 497
• Parties: 136 L.R.R.M. (BNA) 2514, 118 Lab.Cas. P 10,550 Patrick F. BOYLE, et al., Plaintiffs, Appellees, v. William BURKE, Joseph Yergeau, Mark G. Kelliher, Peter Weeks, Ruth Griffin and Raymond Labrie, Defendants, Appellants. . Heard
• Court: U.S. Court of Appeals — First Circuit

Page 497

925 F.2d 497

136 L.R.R.M. (BNA) 2514, 118 Lab.Cas. P 10,550

Patrick F. BOYLE, et al., Plaintiffs, Appellees, v. William BURKE, Joseph Yergeau, Mark G. Kelliher, Peter

Weeks, Ruth Griffin and Raymond Labrie,

Defendants, Appellants.

No. 90-1530.

United States Court of Appeals, First Circuit.

Heard Oct. 4, 1990.

Decided Feb. 6, 1991.

Wayne C. Beyer, with whom Cleveland, Waters & Bass, P.A., was on brief, for defendants, appellants.

Ina P. Schiff, with whom Henry F. Spaloss, was on brief, for plaintiffs, appellees.

Before CAMPBELL and TORRUELLA, Circuit Judges, and ATKINS, ^* Senior District Judge.

LEVIN H. CAMPBELL, Circuit Judge.

The plaintiffs, police officers for the Town of Portsmouth, filed a civil rights action, 42 U.S.C. Sec. 1983, against the Board of Police Commissioners of Portsmouth, the City, and several individuals including William Burke, Joseph Yergeau, Mark Kelliher, Peter Weeks, Ruth Griffin, and Raymond Labrie, appellants here. Plaintiffs seek injunctive and declaratory relief as well as monetary damages for injuries to their military employment sustained as a result of the defendants' allegedly illegal policy preventing Portsmouth Police Officers from serving as active members of the military reserve or national guard. Plaintiffs allege that the policy violates their rights under the Veteran's Reemployment Rights Act ("V.R.R.A."), 38 U.S.C. Secs. 2021-2026, the First and Fourteenth Amendments to the United States Constitution, and New Hampshire Law, N.H. RSA 110-B:65.

The defendants moved for summary judgment on plaintiffs' claims on several grounds. The district court denied the motion on all counts except for those based on New Hampshire law. Defendants appealed from the denial, raising the issue of their individual qualified immunity. In such an interlocutory appeal, our jurisdiction is limited to considering whether the district court erred in denying summary judgment to defendants against plaintiffs' damages claims based on defendants' individual qualified immunity. See Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S.Ct. 2727, 2738, 73 L.Ed.2d 396 (1982). Defendants argue that, at the time of the alleged violations of plaintiffs' rights, the department policy challenged by the plaintiffs did not violate clearly established federal statutory or constitutional rights; therefore, they are immune, in their personal capacities, from damages liability. See Anderson v. Creighton, 483 U.S. 635, 640, 107 S.Ct. 3034, 3039, 97 L.Ed.2d 523 (1987).

I.

Indulging all inferences in favor of the plaintiffs, the nonmovants, see Petitti v. New England T. & T. Co., 909 F.2d 28, 31 (1st Cir.1990), we summarize the facts relevant to this appeal. Plaintiffs Boyle, Prendergast, and Centola were police officers for the Town of Portsmouth. Formerly a member of the Army Reserves, Boyle took inactive status when he joined the department in June 1985. In January, 1988, Boyle notified the department that, as of December 1, 1987, he had resumed active status in the reserves. Prendergast joined the force in March, 1977 and resigned in April, 1988. He had been a member of the New Hampshire National Guard prior to his application to the police department. In August, 1986, he wrote Chief Labrie, requesting an explanation of department policy with respect to reserve participation and was informed in September, 1986 that the department prohibited such participation. Centola joined the Portsmouth Police Department in November, 1979 and enlisted in a Coast Guard Reserve unit in October, 1988.

Defendant-appellant Raymond Labrie served as a member of the Portsmouth Police Department from September, 1969 to May, 1987, eventually becoming chief. He was succeeded as chief by defendant-appellant William Burke. Defendant-appellant Ruth Griffin served on the Board of Police Commissioners from April, 1982 to May, 1988. She was succeeded by defendant-appellant Peter Weeks in 1988. Defendants-appellants Joseph Yergeau and Mark Kelliher are currently serving as members of the Board, both appointed in 1987.

Until 1988, the Portsmouth Police Department's official policy restricted full-time officers' outside employment. This policy was interpreted by the department to preclude officers' active participation in the reserves. The reason cited by the city for the policy was concern over the city's ability to provide police protection to the public in the event officers' reserve obligation created inadequate staffing. No officers were active members of the reserves until plaintiff Boyle announced that he had resumed active status effective December, 1987.

In March, 1988, Chief Burke circulated a statement implementing a change in the Standard Operating Procedure to permit reserve participation. S.O.P. 66 stated in part:

Upon receipt of written notice of training schedules, the supervisor shall make appropriate arrangements to cover the employee's shifts. In the event of a scheduling conflict, the supervisor shall contact the employee's military commanding officer or supervisor to resolve the scheduling conflict.

The S.O.P. was issued by Chief Burke on July 19, 1988.

Plaintiffs claim that the police department's policy, both the original and the amended versions, violated their rights under the Veteran's Reemployment Rights Act, 38 U.S.C. Secs. 2021--2026. They allege that the original policy illegally conditioned employment as a police officer on their agreement not to participate in the reserves, thereby depriving them of the opportunity for military employment guaranteed under the Act. They contend that, by permitting negotiation over scheduling, the amended policy interfered with their right to participate in training guaranteed by Sec. 2024 of the Act. They also allege that the amended policy was used to frustrate and discourage their participation and that other retaliatory actions were taken against them for expressing their intention to participate in the reserves and for asserting their rights under the Act. These retaliatory actions, they insist, violated their First Amendment right to petition the government for redress of grievances. Finally, they argue that the department's policy and defendants' enforcement of the policy violated their rights to due process and equal protection guaranteed by the Fourteenth Amendment to the United States Constitution.

On appeal, we must decide whether, assuming the plaintiffs' version of the facts, a "reasonable official" would have understood that the department's policy preventing participation in the reserves violated the plaintiffs' rights. See Anderson, 483 U.S. at 640, 107 S.Ct. at 3039.

II.

A. Veteran's Reemployment Rights Act, 38 U.S.C. Secs. 2021-26.

1. The Original Policy

Based on the language of the Veteran's Reemployment Rights Act, the case law interpreting the Act, and the legislative history of the 1986 amendment to the Act, we believe that, before October 1986, the degree to which the Act permitted an employer to condition hiring on nonparticipation in the reserves was not clearly established. Therefore, defendants enjoy qualified immunity from suit in their personal capacities based on their actions pursuant to the departmental policy prior to the 1986 amendment to the Act.

Before the 1986 amendment, the Act focused on the consequences suffered by reservists in their civilian employment as a result of their military obligations. The statute on its face protected reservists only from the denial of "retention in employment or any promotion or other incident or advantage of employment, because of any obligation as a member of a Reserve component of the Armed Forces." 38 U.S.C. Sec. 2021(b)(3). Although "advantage of employment" arguably could be construed to include hiring, the language cannot fairly be read to have clearly established rights in the hiring context. Indeed, the legislative history suggests a narrower intention to protect current reservists from adverse employment actions rather than to secure an affirmative right of an employee to join the reserves. See, e.g., S.Rep. No. 1477, 90th Cong., 2d Sess. 1-2 (1968), U.S.Code Cong. & Admin.News 1968, 3421 (stating the purpose of the enactment as "prevent[ing] reservists and National Guardsmen not on active duty who must attend weekend drills or summer training from being discriminated against in employment because of their Reserve membership").

Case law prior to 1986 did not serve to clarify the scope of the statute with respect to employers' practice of conditioning employment on nonparticipation in the reserves. In Monroe v. Standard Oil Co., 452 U.S. 549, 101 S.Ct. 2510, 69 L.Ed.2d 226 (1980), the Supreme Court held only that the statute "was enacted for the significant but limited purpose of protecting the employee-reservist against discriminations like discharge and demotion, motivated solely by reserve status." Id. at 559, 101 S.Ct. at 2516 (emphasis supplied). The Monroe decision addressed only the scope of an employer's obligation to accommodate the current reservist, not the obligation to hire reservists or to permit nonreservist employees from joining the reserves. Indeed, at least one case, Hughes v. Frank, 414 F.Supp. 468 (E.D.N.Y.1976), aff'd, 551 F.2d 300 (2d Cir.1976), cert. denied, 430 U.S. 968, 97 S.Ct. 1650, 52 L.Ed.2d 360 (1977), upheld a county police department policy limiting reserve participation.

The 1986 amendment to the Act expressly extended the Act's coverage to hiring for the first time. Effective October 28, 1986, 38 U.S.C. Sec. 2021(b)(3) was amended to include the following italicized language:

(3) Any person who seeks or holds a position [with a municipal employer] shall not be denied hiring, retention in employment, or any promotion or other incident or advantage of employment because of any obligation as a member of a Reserve component of the Armed Forces.

Pub.L. No. 99-576, Title III, Sec. 331, Oct. 28, 1986 (emphasis supplied). The legislative history of ...