Jorden v. National Guard Bureau, 88-1955

• Decision Date: 06 June 1989
• Docket Number: No. 88-1955,88-1955
• Citation: 877 F.2d 245
• Parties: JORDEN, Jr., Ulus, Appellant, v. NATIONAL GUARD BUREAU, Departments of the Army and The Air Force, Temple, Herbert R., Jr., Major General (PA), The Adjutant General, Commonwealth of Pennsylvania; Campbell, John D., individually and as Colonel, Pennsylvania Air National Guard Base Detachment Commander; and Frisby, Henry C., individually and as Major, Pennsylvania Air National Guard Chief, Administration.
• Court: U.S. Court of Appeals — Third Circuit

Page 245

877 F.2d 245

JORDEN, Jr., Ulus, Appellant, v. NATIONAL GUARD BUREAU, Departments of the Army and The Air Force, Temple, Herbert R., Jr., Major General (PA), The Adjutant General, Commonwealth of Pennsylvania; Campbell John D., individually and as Colonel, Pennsylvania Air National Guard Base Detachment Commander; and Frisby, Henry C., individually and as Major, Pennsylvania Air National Guard Chief, Administration.

No. 88-1955.

United States Court of Appeals Third Circuit.

Argued April 18, 1989.

Decided June 6, 1989.

Frank Finch, III (argued), and McDaniel, Dade, Wheeler & Walwyn, Philadelphia, Pa., for appellant.

Paul C. Clark, Captain (argued), U.S. Air Force, Trial Atty., General Litigation Div., Office of the Judge Advocate Gen., Washington, D.C., Michael M. Baylson, U.S. Atty., James G. Sheehan and Lois W. Davis, Asst. U.S. Attys., U.S. Attorney's Office, Philadelphia, Pa., for appellee, Herbert R. Temple, Jr.

Ernest D. Preate, Atty. Gen., John G. Knorr, III, Chief Deputy Atty. Gen., Chief, Litigation Section, Gwendolyn T. Mosley (argued), and Kate L. Mershimer, Deputy Attys. Gen, Office of Atty. Gen., Harrisburg, Pa., for appellees, Sajer, John D. Campbell, and Henry C. Frisby.

Before SEITZ, SLOVITER and GREENBERG, Circuit Judges.

OPINION OF THE COURT

GREENBERG, Circuit Judge.

The plaintiff, Ulus Jorden, Jr., appeals from the district court's order of summary judgment of October 25, 1988, in favor of the defendants on his First Amendment claim, arising from the termination of his employment with and discharge from the Pennsylvania Air National Guard [PaANG], and from the district court's order of October 19, 1988, denying his motion for entry of default judgments against the defendants. We will reverse the order for summary judgment, affirm the order denying default judgments, and remand for further proceedings.

I.

The case has a long and somewhat involved history. Jorden was employed as a civilian technician with the PaANG from April or May, 1956, two years after his enlistment in the PaANG on April 6, 1954, until November 9, 1984, when he was discharged with the rank of master sergeant. ¹ As a civilian technician Jorden was, at the time of his termination, a federal employee under the National Guard Technicians Act of 1968. See 32 U.S.C. Sec. 709(d). This act requires that such technicians be military members of the National Guard of the United States. ² See 32 U.S.C. Sec. 709(b). Thus, the Adjutant General of the PaANG must terminate the civilian employment of anyone separated from the National Guard. ³ See 32 U.S.C. Sec. 709(e)(1).

The PaANG, along with all state air national guard entities, must be federally recognized, a status that requires that its members meet federal standards prescribed for their particular grades. See 10 U.S.C. Sec. 8077; 32 U.S.C. Secs. 101(6)(D), 301. Among its other duties, the National Guard Bureau, a joint bureau of the Department of the Army and the Air Force, see 10 U.S.C. Sec. 3040, grants and withdraws such recognition. See Jorden v. National Guard Bureau, 799 F.2d 99, 101 (3d Cir.1986), cert. denied, --- U.S. ----, 108 S.Ct. 66, 98 L.Ed.2d 30 (1987). Upon federal recognition, members of state air national guard units become members of the Air National Guard of the United States, a federal military service. See 10 U.S.C. Secs. 8261(a), 8351(a).

On November 19, 1983, putatively as a result of his conduct, which included protests alleging improper acts by his superior officers, ⁴ Jorden was ordered to undergo a psychiatric examination, based upon which the psychiatrist concluded that he was "quite impaired from a psychiatric standpoint," and therefore unsuitable for retention in service. As a result, further evaluation was indicated, but Jorden refused three times to obey orders to report for inpatient medical evaluation, denominated as "special training." Accordingly, Jorden was honorably discharged as not medically qualified for worldwide duty or retention in the PaANG under applicable regulations on October 3, 1984. His technician status with the PaANG was then terminated on November 9, 1984.

In an application of January 27, 1985, and an amended application of May 15, 1985, ⁵ Jorden requested relief from the Air Force Board for the Correction of Military Records (AFBCMR) [Board]. ⁶ In particular, he asked that his discharge be voided and that he be reinstated in the PaANG. In his application, Jorden asserted that the orders requiring him to report for medical evaluation were not in compliance with national guard regulations, and were issued in retaliation for his attempts to protest official misconduct. After considering Jorden's application at a meeting on September 24, 1986, ⁷ the Board denied him relief and so advised him in a letter of November 7, 1986. Jorden has never instituted any action to set aside the Board's decision.

Jorden did, however, on February 7, 1985, long before the Board acted, file a complaint, which he later amended, in the district court. The defendants in the amended complaint were the National Guard Bureau and Major General Emmett H. Walker, Jr., its chief, who were federal defendants, and Major General Richard M. Scott, the Pennsylvania Adjutant General, and Colonel John D. Campbell and Major Henry Frisby, PaANG officers, who were state defendants. However, during the course of these proceedings, Lt. General Herbert R. Temple, Jr., and Major General Sajer replaced Walker and Scott in office and have, respectively, been substituted for them as defendants. ⁸

Jorden alleged that he had been unlawfully discharged from his employment as a civilian technician with the PaANG in retaliation for exercising his First Amendment rights; that his discharge was as the result of racial discrimination; that acts and practices of the defendants violated his Fourteenth Amendment rights and as well as his rights under 42 U.S.C. Secs. 1983, 1985(3) and 1986; and that statements made by the state defendants gave rise to a cause of action for defamation under Pennsylvania law, over which he requested the district court to exercise pendent jurisdiction. Jorden sought declaratory and injunctive relief, including reinstatement, and back pay, as well as compensatory and punitive damages, and attorney's fees and costs. ⁹ The defendants, without answering, moved to dismiss and, on September 24, 1985, the district court granted their motions under Fed.R.Civ.P. 12(b)(1) and (6), finding Jorden's federal claims barred under Chappell v. Wallace, 462 U.S. 296, 103 S.Ct. 2362, 76 L.Ed.2d 586 (1983). The court also dismissed the state common law claim, declining to exercise pendent jurisdiction over it.

Jorden then appealed, and on August 27, 1986, we affirmed the dismissal of the damages claims under the authority of Chappell, as well as all claims against the National Guard Bureau. However, we reversed the district court's dismissal of his claim for injunctive relief ordering his reinstatement in the PaANG and remanded the case to the district court for further proceedings. ¹⁰ See Jorden v. National Guard Bureau, 799 F.2d at 111. The district court received our mandate on November 3, 1986, and no action was taken by the defendants, who had not yet filed answers to Jorden's amended complaint, to seek a stay of the judgment. ¹¹ On October 5, 1987, the Supreme Court denied the state defendants' petition for a writ of certiorari. --- U.S. ----, 108 S.Ct. 66, 98 L.Ed.2d 30 (1987).

While the defendants' motions to dismiss extended the time for them to file answers, see Fed.R.Civ.P. 12(a), they did not promptly do so after the case was remanded, and thus Jorden filed a motion for default judgments on January 19, 1988. The state defendants and Temple filed motions for leave to file answers out of time, on February 3 and February 12, 1988, respectively. Temple filed his answer on February 2, 1988, and again on November 4, 1988. ¹² The state defendants filed their answer on February 3, 1988. Jorden filed a motion to strike Temple's answer on February 4, 1988. Temple filed a motion for summary judgment on April 25, 1988 and on June 20, 1988, the state defendants joined in this motion.

By its order of October 19, 1988, the district court denied Jorden's motion for default judgment and motion to strike Temple's answer, and granted all the defendants' motions to file answers out of time. By its order of October 25, 1988, the district court granted the defendants' motions for summary judgment with respect to Jorden's First Amendment claim and denied them with respect to Jorden's racial discrimination claim, granted the parties a ninety-day discovery period, and set a March 20, 1989, trial date.

On December 8, 1988, by agreement with the defendants pursuant to Fed.R.Civ.P. 41(a)(1)(ii), Jorden voluntarily filed a stipulation of dismissal, with prejudice, of all his claims not dismissed by the district court's October 25, 1988, order, thus permitting an immediate appeal from the summary judgment in favor of the defendants on his First Amendment claim. ¹³ On December 19, 1988, Jorden filed his notice of appeal of the district court's orders of October 19 and 25, 1988, which denied his motion for entry of default judgments, permitted the defendants to answer, and granted them partial summary judgment.

II.

On Jorden's first appeal we remanded the matter and indicated that if he could demonstrate that his discharge violated his constitutional rights he would be entitled to reinstatement. 799 F.2d at 111. In considering the merits of Jorden's First Amendment claim on remand, the district court, although recognizing that "this is not a case in which I am asked to review a decision of the [Board]," nevertheless stated that since Jorden's "[First Amendment] allegation [in his civil complaint] is the same as the allegations he made before the [Board] ¹⁴.... I am required to review the Board's findings under the abuse of discretion standard stated in ...