Johnson v. Orr

• Citation: 780 F.2d 386
• Decision Date: 17 March 1986
• Docket Number: No. 84-5859,No. 84-5860,84-5860,Nos. 84-5859,84-5859,s. 84-5859
• Parties: 121 L.R.R.M. (BNA) 2487 Roy A. JOHNSON and John J. Sheller, Appellees, v. Verne ORR, Secretary of the Air Force, Francis Gerard, Major General, Wilfred C. Menard, Jr., Major General, Colonel John Murphy, Brigadier General Charles Young, Air Commander Lt. Col. Billy McDaniel. Appeal of Air Commander Lt. Col. Billy McDANIEL, Appellant inAppeal of Wilfred C. MENARD, Jr., Major General, Colonel John Murphy, Brigadier General Charles Young, Appellants in
• Court: United States Courts of Appeals. United States Court of Appeals (3rd Circuit)

Page 386

780 F.2d 386

121 L.R.R.M. (BNA) 2487

Roy A. JOHNSON and John J. Sheller, Appellees, v. Verne ORR, Secretary of the Air Force, Francis Gerard, Major

General, Wilfred C. Menard, Jr., Major General, Colonel John

Murphy, Brigadier General Charles Young, Air Commander Lt.

Col. Billy McDaniel.

Appeal of Air Commander Lt. Col. Billy McDANIEL, Appellant

in No. 84-5859.

Appeal of Wilfred C. MENARD, Jr., Major General, Colonel

John Murphy, Brigadier General Charles Young,

Appellants in No. 84-5860.

Nos. 84-5859, 84-5860.

United States Court of Appeals, Third Circuit.

Argued Sept. 10, 1985.

Decided Jan. 13, 1986.

Rehearing and Rehearing En Banc Denied March 17, 1986.

C. Roger Lunder, Major, Staff Judge Advocate, State of New York, Division of Military and Navy Affairs, Albany, N.Y., for amicus curiae Adjutants General Ass'n. of U.S.

John K. Van de Kamp, Atty. Gen. of Cal., N. Eugene Hill, Asst. Atty. Gen., Robert E. Murphy, Deputy Atty. Gen., San Francisco, Cal., for amicus curiae State of Cal. and the Adjutant General of the California National Guard.

Gay Snyder, Martin R. Cohen (argued), American Federation of Government Employees, New Brunswick, N.J., Mark Roth, Gen. Counsel, American Federation of Government Employees, Washington, D.C., for appellees Johnson and Sheller.

Irwin I. Kimmelman, Atty. Gen. of N.J., Eugene Sullivan, Dorothy Donnelly (argued), Deputy Attys. Gen., Trenton, N.J., for appellant in 84-5859.

W. Hunt Dumont, U.S. Atty., Bette E. Uhrmacher (argued), Asst. U.S. Atty., Trenton, N.J., for appellants in 84-5860.

Before SEITZ, BECKER and ROSENN, Circuit Judges.

OPINION OF THE COURT

BECKER, Circuit Judge.

The issue before us, on a certified question from the district court, 28 U.S.C. Sec. 1292(b) (1982), is whether Air National Guard ("ANG") technician supervisory personnel and the New Jersey Adjutant General act under color of state law for the purposes of 42 U.S.C. Sec. 1983 (1982) when participating in personnel decisions resulting in the dismissal of ANG technicians. The district court held that they do, and we affirm.

I.

Appellees Roy A. Johnson and John J. Sheller were ANG technicians and stewards in the technicians' union, Local 377 of the American Federation of Government Employees. As a result of a series of events arising out of a dispute over a proposed change in the technicians' work hours, appellees were discharged. The discharges were upheld in administrative hearings before an ANG hearing examiner, whose findings were adopted by the New Jersey Adjutant General.

On August 6, 1982 appellees brought this action in the district court for the District of New Jersey against their supervisors John Murphy and Charles Young; Secretary of the Air Force Verne Orr; Major General Wilfred Menard, who was New Jersey Adjutant at the time of appellees discharge; and Major General Francis Gerard, who succeeded Menard as New Jersey Adjutant General. Appellees' complaint alleged improper discharge in violation of their first and fifth amendment rights (Bivens claims) ¹; improper discharge in violation of the Administrative Procedure Act (APA), 5 U.S.C. Sec. 701 et seq. (1982); and violation of 42 U.S.C. Sec. 1983 on account of due process and various first and fifth amendment infractions. An amended complaint was filed in January, 1984, adding as a defendant Billy McDaniel, a technician personnel officer who had advised the other defendants concerning the discharge of plaintiffs. ²

Following a hearing in March, 1983, the district court transferred all damage claims to the United States Claims Court pursuant to 28 U.S.C. Sec. 1406(c) (1982) and dismissed the Bivens claims. Both sides moved for summary judgment with respect to the remaining claims. In July, 1984 the district court granted summary judgment for plaintiffs on their APA claims and summary judgment for defendants with respect to the due process claim. The district court denied summary judgment with respect to the other claims brought under section 1983, specifically rejecting defendants' argument that a section 1983 action could not be brought against National Guard supervisory personnel. On a motion for partial reconsideration, the district court agreed to certify for interlocutory appeal the question whether persons such as Murphy, Young, McDaniel, and Menard, who discharge technicians employed under 32 U.S.C. Sec. 709, act under the color of state law for section 1983 purposes. This court accepted the certification and defendants appealed. ³

II.

The question whether appellants acted under color of state law is difficult because of the National Guard's unusual "hybrid" status as an agency with both federal and state characteristics. In New Jersey Air Nat'l Guard v. Fed. Labor Rel. Auth., 677 F.2d 276 (3d Cir.1982), we described this status as follows:

The National Guard occupies a unique position in the federal structure ... This role does not fit neatly within the scope of either state or national concerns; historically the guard has been, and today remains, something of a hybrid. Within each state the National Guard is a state agency, under state authority and control. At the same time, the activity, makeup, and function of the Guard is provided for, to a large extent, by federal law.

Id. at 278-79. Indeed, the Guard's function, as well as its structure, is hybrid. The Guard "serves the state in time of civil emergencies within the state as well as being available for federal service during national emergencies." Engblom v. Carey, 522 F.Supp. 57, 65 (S.D.N.Y.1981).

Appellants focus on the federal statutory scheme that governs ANG, 32 U.S.C. Sec. 709 (1982). They point out first that the 1968 National Guard Technicians Act makes them (with the exception of Adjutant General Menard, a state cabinet officer appointed by the governor) federal employees. ⁴ Appellants further emphasize that their authority to discharge appellees derives directly and exclusively from federal statute and that such discharges are effected pursuant to regulations prescribed by the Secretary of the Air Force, 32 U.S.C. 709(e). ⁵ They contend that New Jersey Air National Guard Regulations 40-13 (NJANG) does not constitute state law for section 1983 purposes because it simply restates the relevant federal regulations: NJANG's stated purpose is to "provide for the administration of the NJ Army and Air National Guard Technician Program and implement the provisions of the National Guard Bureau Technician Personnel Manual, Technician Personnel Pamphlets and applicable regulations of the U.S. Civil Service Commission's Federal Personnel manual." (emphasis added) Appellants argue that they could not possibly have acted under the color of state law, for there is no state law directing or authorizing their actions.

Appellants also argue that the Supreme Court's holding in Bush v. Lucas, 462 U.S. 367, 103 S.Ct. 2404, 76 L.Ed.2d 648 (1983), that congressional enactment of a comprehensive civil service scheme precluded an implied Bivens-type cause of action, should be extended to section 1983 actions. Because ANG operates pursuant to a comprehensive legislative scheme, appellants argue, a section 1983 remedy is inappropriate. ⁶

Appellees rejoin that the state is so heavily involved in the National Guard program that the actions complained of were under color of state law. Their argument focuses on the Guard's actual administrative authority at the state level. The governor is the commander-in-chief of each Guard unit and the adjutant general, a state officer, is the chief acting executive. Appellees' discharge was effected by Adjutant General Menard: the other appellants worked under Menard. Appellees also observe that while the other appellants are federal employees, they had to maintain their rank in the state Guard in order to maintain their employment as federal technicians and thus be in the position to discharge appellees. ⁷

III.

The "under color of state law" requirement is identical to the "state action" requirement of the fourteenth amendment. Lugar v. Edmondson Oil Co. Inc. 457 U.S. 922, 102 S.Ct. 2744, 73 L.Ed.2d 482 (1982); Krynicky v. University of Pittsburgh, 742 F.2d 94 (3d Cir.1984). Thus, a showing that actions were "under color of state law," like a showing of the presence of "state action," does not require that the challenged action be pursuant to a state statute. Rather, the question is "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), or whether the state "has so far insinuated itself into a position of interdependence" that there is a "symbiotic relationship" between the actor and the state such that the challenged action can "fairly be attributed to the state." Krynicky, supra, at 99.

There is no set formula for determining whether the employees of an agency with both state and federal characteristics act under color of state law. All of the circumstances must be examined to consider whether the actions complained of were sufficiently linked to the state. See Lake Country Estates Inc. v. Tahoe Regional Planning Agency, 440 U.S. 391, 99 S.Ct. 1171, 59 L.Ed.2d 401 (1979). A crucial inquiry is "whether day-to-day operations are supervised by the Federal [or state] government." Detore v. Local 245 Jersey City Public Employers Union, 615 F.2d 980, 983 (3d Cir.1980) (quoting United States v. Orleans, 425 U.S. 807, 815, 96 S.Ct. 1971, 1976, 48 L.Ed.2d 390 (1976)).

While the National Guard's hybrid status complicates this inquiry, we have strong guidance from our opinion in Lasher v. Shafer, 460 F.2d 343 (3d Cir.1972), which involved facts strikingly similar to the facts of this case. In Lasher, National Guard technicians alleged that they had been demoted and abused by their supervisors because of their active union involvement. We concluded that defendants had acted under color of state law. We...