Rowe v. State of Tenn.

• Decision Date: 08 March 1977
• Docket Number: Civ. No. 3-76-120.
• Citation: 431 F. Supp. 1257
• Parties: Jerry L. ROWE v. STATE OF TENNESSEE et al.
• Court: U.S. District Court — Eastern District of Tennessee

431 F. Supp. 1257

Jerry L. ROWE v. STATE OF TENNESSEE et al.

Civ. No. 3-76-120.

United States District Court, E. D. Tennessee, N. D.

March 8, 1977.

COPYRIGHT MATERIAL OMITTED

William Terry Denton, Maryville, Tenn., for plaintiff.

Jack E. Seaman, Nashville, Tenn., Robert E. Simpson, Asst. U.S. Atty., John W. Wheeler, Knoxville, Tenn., Rom L. Meares, Joe H. Nicholson, David T. Black, Maryville, Tenn., for defendants.

MEMORANDUM

ROBERT L. TAYLOR, District Judge.

Plaintiff, Jerry Rowe, brought this action against fourteen defendants for wrongs that allegedly were committed against him "under color of state law" while he was employed as a civilian federal technician pursuant to the National Guard Technicians Act, 32 U.S.C. § 709. The complaint is based upon alleged violations of 42 U.S.C. §§ 1983, 1985(3), the Privacy Act of 1974, 5 U.S.C. § 552a, and Executive Order 11491, as amended, Executive Orders 11616, 11636 and 11838.

By a previous Order, the Court sustained Governor Ray Blanton's motion to dismiss on the ground that it was not alleged that he personally violated plaintiff's civil rights and the motions to dismiss of defendants, State of Tennessee, the Tennessee Air National Guard, and the 134th Air Refueling Group of the Tennessee Air National Guard, on the ground that they were not "persons" within the meaning of the Civil Rights Act. Plaintiff's claims under Sections 1985 and 1986 were also dismissed because the complaint failed to allege an actionable conspiracy to deprive plaintiff of his civil rights.¹

The remaining defendants contend that plaintiff's claim under Section 1983 should be dismissed because they are federal employees and were acting under color of federal law at the time they allegedly committed the acts forming the basis of the complaint. They further contend that they are not personally liable under the Privacy Act of 1974, and that plaintiff has failed to state a claim for relief under Executive Order 11491. Additional grounds for dismissing the complaint have been alleged, but in view of the Court's holding it will not be necessary to address them.

The original complaint contained lengthy, imprecise and conclusory allegations that left considerable doubt as to the nature of plaintiff's theory of recovery. The Court requested that plaintiff consider filing an amended complaint that complied with Rule 8(a) of the Federal Rules of Civil Procedure. Since that time, an amended complaint has been filed, and plaintiff has answered interrogatories propounded by defendants and written questions presented by the Court which were aimed at clarifying plaintiff's theory of recovery. The record now is in sufficient shape for the Court to pass on the issues raised by defendants.

Civil Rights Jurisdiction

The first issue presented is whether the amended complaint adequately alleges that defendants deprived plaintiff of his civil rights while acting "under color of state law." Deprivations of civil rights occurring "under color of federal law" are not actionable under Section 1983. Bivens v. Six Unknown Agents, 403 U.S. 388, 91 S.Ct. 1999, 29 L.Ed.2d 619 (1971).

The construction that has traditionally been placed upon the phrase "under color of state law" for the purposes of the Civil Rights Act was enunciated by the Supreme Court in United State v. Classic, 313 U.S. 299, 326, 61 S.Ct. 1031, 85 L.Ed. 1368 (1941):

"Misuse of power, possessed by virtue of state law and made possible only because the wrongdoer is clothed with the authority of the state, is action taken `under color of' state law."

This definition was reaffirmed by the Court in Screws v. United States, 325 U.S. 91, 65 S.Ct. 1031, 89 L.Ed. 1495 (1945), and Monroe v. Pape, 365 U.S. 167, 81 S.Ct. 473, 5 L.Ed.2d 492 (1965). Thus, we must examine the record to determine if it is contended that any of the defendants misused authority which they possessed by virtue of and made possible only because of state law to deprive plaintiff of his civil rights. For this purpose only, we accept the allegations of plaintiff as true.

As will be discussed more fully herein, plaintiff was employed as a civilian technician pursuant to the National Guard Technicians Act until he was terminated from that employment in April 1976, through a reduction in force. All but two of the defendants were employed during the times in question as civilian technicians under the Act. The thrust of the complaint is that the defendants individually and collectively abused, harassed, and intimidated plaintiff in his employment as a civilian technician, and through such acts, purposefully caused him to be separated from his civilian employment "under the guise of a reduction in force." In order to determine whether the alleged wrongs were committed under color of state law, it is necessary to consider the status conferred upon the parties by the National Guard Technicians Act and the capacities in which they were acting when the alleged wrongs occurred.

The National Guard Technicians Act was enacted by Congress in 1968 to accomplish three objectives:

"(a) To provide retirement and fringe benefit program which will be both uniform and adequate;

"(b) To recognize the military requirements and the State characteristics of the National Guard by providing for certain statutory administrative authority at the State level with respect to the technician program;

"(c) To clarify the technician's legal status which in certain areas has been the subject of conflicting court decisions, especially on the matter of whether technicians are covered under the Federal Tort Claims Act regarding third party actions against the U. S. Government." 1968 U.S.Code Cong. & Admin.News, p. 3319.

The Act provides, among other things, that civilian technicians are federal employees, although they are generally required to be military members of a State National Guard unit as a condition of their civilian employment. 32 U.S.C. § 709(b). Their salaries are paid by the Federal Government and they are insured under the Federal Employees Compensation Act. 1968 U.S. Code Cong. & Admin.News, p. 3322. In short, they are employed by the Federal Government as civilian technicians during the week to maintain and care for National Guard equipment, and they are members of the State National Guard who drill and work for the State on weekends.

Recognizing the state characteristics of the National Guard, the Act provides that the Secretary of the Army or Air Force shall designate the adjutants general of the various States to employ and administer the technician program. 32 U.S.C. § 709(c). This provision was intended to give the adjutants general, who are state employees, the federal statutory function of employing federal employees. 1968 U.S. Code Cong. & Admin.News, p. 3330. The supervisory authority conferred upon adjutants general by federal law includes, among other things, the authority to effect reductions in force. 32 U.S.C. § 709(e)(4). An appeal from such action, by the express terms of the statute, does not extend beyond the adjutant general of the jurisdiction concerned. 709(e)(5).

Of particular importance to the present case is the portion of the Act which unequivocally provides that civilian technicians are federal employees:

"A technician employed under subsection 32 U.S.C. § 709(a) is an employee of the Department of the . . . Air Force . . . and an employee of the United States. However, a position authorized by this section is outside the competitive service if the technician employed therein is required under subsection (b) to be a member of the National Guard." 32 U.S.C. § 709(d).

This section was clearly intended by Congress to clarify the status of National Guard Technicians in situations in which they are named as defendants in civil suits for acts committed during the course of their employment. 1968 U.S.Code Cong. & Admin.News, p. 3319.² Despite this provision, several courts have held that, in certain situations, a suit by a civilian technician may be brought under Section 1983.³

Defendant Wallace is Adjutant General of the Tennessee Air National Guard. He is not employed as a civilian technician, but, as previously indicated, he is possessed with federal authority to administer the technician program within the State of Tennessee. Defendant Wallis is the Flight Surgeon of the 134th Air Refueling Group of the Tennessee Air National Guard and is not employed as a civilian technician.

Defendants Akin, Pierce, Carter and Arr are both civilian technicians and officers in the Guard. They hold a higher military rank than plaintiff, and it appears from the complaint that they are his civilian superiors as well. As such, plaintiff contends, they exercise "dual control" over him.

Defendants Gambill, Livesay and Helton are noncommissioned officers in the Guard, as is plaintiff, and they are civilian technicians who "have had a certain amount of limited association with plaintiff" in their capacity as technicians. It is not contended that these defendants possessed any direct civilian supervisory authority over plaintiff, although it does appear that defendant Gambill may hold a higher position as a technician than plaintiff. Defendant Jones is the Civilian Technician Personnel Officer.

Plaintiff's theory of recovery, as it has been disclosed in the amended complaint, discovery materials and briefs, may be summarized as follows. Plaintiff contends that in September 1972, he was switched from his civilian job in "Stan/Eval" to another civilian technician job at the Air Base. This job transfer was precipitated, according to plaintiff, by false statements made about his job performance by Livesay and Gambill. Plaintiff filed a grievance under the collective bargaining agreement then existing between the civilian technicians⁴ and their employer in an effort to have his old job restored. Although plaintiff has not clarified this point, the grievance appears to have been resolved...