Bradley v. Stump
| Decision Date | 28 March 1997 |
| Docket Number | No. 1:96-CV-674.,1:96-CV-674. |
| Citation | 971 F.Supp. 1149 |
| Parties | John L. BRADLEY, III, Plaintiff, v. E. Gordon STUMP, Ronald Seeley and Department of Military Affairs of the State of Michigan, jointly and severally, Defendants. |
| Court | U.S. District Court — Western District of Michigan |
Richard P. Diehl, Diehl & Sobczak, PC, Troy, MI, for plaintiff.
Michael C. McDaniel, Asst. Attorney General, Tort Defense Division, Lansing, MI, for defendants.
In his complaint, plaintiff essentially asks this Court to recognize either a federal or state, constitutionally- or statutorily-created, right of a military base commander to supervise his or her spouse while serving in the armed services of the United States. Plaintiff has failed to cite a single statute, regulation or case which supports such a right. Neither has this Court found any case that supports plaintiff's alleged right to command a military base where his spouse is employed or in the alternative to be protected from a military superior's anti-nepotism policy which punishes an officer who fails to avoid such a conflict of interest. Plaintiff has also failed to convince this Court that a new right of this type should be created. Against plaintiff's complete failure to state a claim upon which relief can be granted, defendants have identified numerous jurisdictional bars to this Court even considering plaintiff's complaint. For these reasons, as outlined in the opinion that follows, the Court grants defendants' motion to dismiss plaintiff's complaint for failure to state a claim upon which relief can be granted.
The facts are those set forth in plaintiff's complaint.1 Plaintiff, John L. Bradley III, a resident of Huntington, West Virginia, formerly resided in Battle Creek, Michigan where he served as commander of Battle Creek National Guard Base, ("BCANGB"), until he retired in March 1995. Bradley held dual status as a commissioned colonel in the Michigan Air National Guard and the Air National Guard of the United States. As base commander during the week, plaintiff was considered a grade GM15 federal technician pursuant to 32 U.S.C. § 709. When engaging in active state duty on weekends, during annual training or on special call up duty, plaintiff served both as base commander and as commander of the 110th Fighter Group, a unit of the Michigan Air National Guard.
Defendant, E. Gordon Stump, was appointed by the governor of Michigan to serve as adjutant general of the National Guard for the State of Michigan and is the director of the Michigan Department of Military Affairs. Defendant, Ronald L. Seely, was appointed by the adjutant general to serve as assistant adjutant general for the Air National Guard of Michigan and is deputy director of the Michigan Department of Military Affairs. Both Stump and Seely are employees of the State of Michigan and not the federal government.
Plaintiff married Linda L. Bradley on April 10, 1992. Mrs. Bradley was employed as a competitive service federal employee at BCANGB. Although in his complaint, plaintiff asserted that Mrs. Bradley "was not a subordinate of Bradley's as she worked in Base Operations away from her husband" and that plaintiff "was not in her performance rating chain," plaintiff's counsel conceded at oral argument that all employees at BCANGB, including plaintiff's wife, were ultimately supervised and under the direct chain of command of plaintiff.
Under Air National Guard Regulations ("ANGR"), plaintiff, along with all Air National Guard officers with over 20 years of qualifying military service, must be reviewed annually for consideration of retention, or separation from, their state National Guard, by the Annual Retention Board.2 The Annual Retention Board ("ARB") is a board of officers from within the state's military establishment, each of whom is more senior in rank than the person being evaluated. The ARB considers the limited information submitted to it about the officer under consideration and recommends to the adjutant general whether the officer should be retained or discharged from the reserve component of the U.S. Air Force. A part of the information considered by the ARB is a current appraisal written by the rating "chain of command" within two to three months before the ARB convenes. This report assesses the rated officer's current performance, potential and recommends retention or non-retention in the Air National Guard of the United States. If the ARB recommends non-retention, the officer affected can appeal the decision to the adjutant general. If the adjutant general denies the appeal, the officer is separated from the Air National Guard of the United States within months. Once separated from the Air National Guard, the officer normally also is separated from the state National Guard. If an officer is separated from the state National Guard, the officer can no longer maintain his weekday employment as a federal technician because 32 U.S.C. § 709(b) requires that technicians "be a member of the National Guard and hold the military grade specified by the Secretary [of the Air Force] concerned for that position." So to retain his employment as a GM15 federal technician, plaintiff was required to maintain his rank as a colonel in the Air National Guard.
According to the complaint, on January 6, 1994, defendant Seely summoned plaintiff to Michigan National Guard headquarters in Lansing for a mid-year performance review. Once there, plaintiff was informed that either he or his wife would "have to go" because defendant Stump would "not allow a Base Commander and his wife to work on the same installation."3 Defendant Stump then allegedly came in the room and both he and defendant Seely insisted that either plaintiff or his wife would "lose his or her job." Seely and plaintiff discussed the matter again on February 23, 1994 at a commanders meeting. Seely told plaintiff at a private luncheon "he would deny in Court that he ever insisted that either Bradley or his wife must leave his or her job." Plaintiff informed Seely that as base commander he lacked the authority to force a federal competitive service employee, such as his wife, to resign or transfer.
The complaint further indicates that after plaintiff was notified of defendants' opposition to base commanders supervising their spouses, plaintiff's wife attempted to find off-base employment during a 14-month period between January 1994 and March 1995. Seely even interceded himself, inquiring of an acquaintance at the Kellogg Company, with its world headquarters in Battle Creek, whether outside employment could be obtained for plaintiff's wife. Attempts by plaintiff's wife to obtain other employment were apparently unsuccessful. Plaintiff's complaint does not indicate whether he sought a transfer within the National Guard establishment. However, plaintiff's counsel indicated at oral argument that plaintiff sought and was denied a transfer, although counsel conceded he was unaware whether the equivalent of any base commander positions became vacant during the time when plaintiff was seeking such a transfer. The record is also silent on whether plaintiff, like his spouse, also attempted to find non-military employment during this 14-month period.
From April 1, 1990 to March 31, 1994, all "Field Grade Officer Performance Reports" by Seely evaluated plaintiff's performance in "nothing less than superlatives," according to the complaint.4 On March 13, 1995, Seely met with plaintiff at his BCANGB office and presented him with a proposed "Federal Retention Evaluation/Recommendation" form for 1995 that rated him `extremely low on potential and recommended non-retention' in the Air National Guard of the United States pursuant to Air National Guard Regulations. Seely told plaintiff the poor 1995 evaluation would be submitted to a "Selective Retention Board" scheduled to meet on May 7, 1995 unless plaintiff retired immediately. Seely allegedly also told plaintiff that Seely had selected the members of this board, the board would recommend non-retention and that while plaintiff could appeal the decision to Stump, any such effort would be in vain because "Stump had already decided that Bradley could no longer remain" and "would be out of the Air National Guard of the United States by the end of 1995 or earlier."
Seely allegedly planned the timing of this March 13, 1995 meeting with plaintiff because the federal government was offering a $25,000 incentive bonus for federal employees to retire before March 31, 1995.5 Plaintiff's complaint reports Seely gave him nine days, or until March 16, 1995,6 to submit his application for retirement from the Air National Guard of the United States.
Confronted with this situation, plaintiff claims he had only two alternatives: resist defendants' efforts "to force him out of the Michigan Air National Guard" or "retire prematurely." Plaintiff complains that any effort to resist Seely's efforts would have been futile because the only avenue for appeal was Stump, the alleged mastermind of this plan. If he resisted defendants' efforts, the 50-year-old plaintiff says he risked losing 12 years of retirement pay and being forced to give up his federal technicians job. Plaintiff "had no viable alternative but to retire immediately rather than be forced out of the Michigan Air National Guard/Air National Guard of the United States" which would prevent him from qualifying for the federal early retirement incentive bonus and immediate monthly retirement benefits, according to the complaint. By retiring at age 50, plaintiff complains that his pension benefits will always be 10 percent less than if he had waited until age 55 to retire. In his complaint, plaintiff does not attempt to quantify the total economic loss he allegedly suffered by his decision to take early retirement.
Plaintiff complains that he had no administrative remedies...
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...base commander during the week, Bradley was considered a grade GM-15 federal technician pursuant to 32 U.S.C.§ 709. Bradley v. Stump, 971 F.Supp. 1149, 1151 (W.D. Mich. 1997). When participating in active state duty on weekends, during annual training, or on special call up duty, Bradley se......
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