Zitser v. Walsh, Civ. 15094.

• Citation: 352 F. Supp. 438
• Decision Date: 08 December 1972
• Docket Number: No. Civ. 15094.,Civ. 15094.
• Court: U.S. District Court — District of Connecticut
• Parties: Barry S. ZITSER v. Major General E. Donald WALSH, Adjutant General, Connecticut National Guard, et al.

352 F. Supp. 438

Barry S. ZITSER v. Major General E. Donald WALSH, Adjutant General, Connecticut National Guard, et al.

No. Civ. 15094.

United States District Court, D. Connecticut.

December 8, 1972.

Arthur P. Meisler, Willimantic, Conn., for plaintiff.

Robert K. Killian, Atty. Gen., F. Michael Ahern, Bernard F. McGovern, Jr., Asst. Attys. Gen., Hartford, Conn., for defendants.

RULING ON MOTION TO DISMISS

BLUMENFELD, Chief Judge.

Plaintiff Barry Zitser is an enlisted member of the Connecticut National Guard who successfully applied for admission to the Guard's Officer Candidate School (OCS). Upon arrival at OCS, he and his classmates were asked to submit an autobiography. Defendant Colonel Donald J. Acker,¹ the officer in charge of OCS, concluded on the basis of statements critical of military practices made by the plaintiff in this autobiography and in a subsequent interview that the plaintiff would not meet the standards of the applicable regulation, NGR 351-5, para. 7(f):

"(1) The primary emphasis of the State OCS Program will be placed upon the development of desirable leadership traits and abilities of each candidate. Methods of leadership development include rigid discipline, high standards of deportment and conduct and exacting manner of performance, frequent and effective counseling, and continuous observation, correction and evaluation. Training will be conducted in accordance with USCONARC Regulation 350-11, `OCS Training Policies.'

"(2) A system will be maintained to evaluate the leadership ability of each candidate. Students who fail to show progress in the development of these traits will be dropped from the program."

Plaintiff claims that in grounding their decision to dismiss him from OCS upon the statements made in the autobiography, defendants have violated his first amendment rights, and that the manner of his dismissal deprived him of his fourteenth amendment right to due process. Defendants have moved to dismiss for lack of jurisdiction and, alternatively, for failure to state a claim upon which relief may be granted. Fed.R.Civ.P. 12(b)(6). These grounds will be separately considered, recognizing that at this stage of the proceedings the plaintiff's allegations of the complaint must be taken as true. See Cooper v. Pate, 378 U.S. 546, 84 S.Ct. 1733, 12 L.Ed.2d 1030 (1964).

I. Jurisdiction

This action is brought under the Civil Rights Act, 42 U.S.C. § 1983,² which creates a federal cause of action against those persons whose misconduct under color of state law violates constitutional rights of another. Jurisdiction to entertain such a claim is authorized by 28 U. S.C. § 1343(3) without regard to any amount in controversy. Lynch v. Household Fin. Corp., 405 U.S. 538, 92 S.Ct. 1113, 31 L.Ed.2d 424 (1972).

A. State Law

In considering whether one essential element for an action under the Civil Rights Act is present, the first question is whether the defendants were acting under color of state law. The National Guard is a lineal descendant of the militia; as such, the Constitution reserves to the states the appointment of its officers. U.S.Const., art. I, § 8, cl. 16; see generally, Wiener, The Militia Clause of the Constitution, 54 Harv.L. Rev. 181 (1940). The dual status of a guard officer is set forth clearly in one of the governing federal regulations, 32 C.F.R. § 564.2(a)(1):

"The appointment of officers in the Army National Guard is a function of the State concerned, as distinguished from the Federal recognition of such appointment. Upon appointment in the Army National Guard of a State . . . an individual has a State status under which he can function. Such individual acquires a federal status when he is federally recognized and appointed as a Reserve of the Army."

One may be a member of the National Guard of a state without receiving federal recognition, but never the reverse. Thus, when defendants rejected Zitser as unsuitable officer material, they were exercising a state function and preventing him from receiving appointment as an officer in a state organization. Moreover, in Maryland v. United States, 381 U.S. 41, 85 S.Ct. 1293, 14 L.Ed.2d 205 (1965), the Supreme Court approved a line of cases which held that military members of the Guard are state employees.³ Under these circumstances, defendants' conduct, if in derogation of plaintiff's constitutional rights, falls within the boundaries of § 1983.

While Colonel Acker used a federally-promulgated regulation, NGR 351-5, in determining that plaintiff did not have and would not develop the abilities required of an officer, state law commanded him to apply that regulation. Connecticut General Statutes § 27-49 declares that appointments to the Connecticut National Guard, while made by the Governor, are to conform to federal standards.⁴ Thus, his decision was made "under color of (a) statute . . . of (a) State" within the meaning of § 1983.

The view that civil rights suits against National Guard officials may be brought under § 1983 is supported by the recent decision in Morgan v. Rhodes, 456 F.2d 608 (6th Cir.), cert. granted sub nom. Gilligan v. Morgan, 409 U.S. 947, 93 S.Ct. 287, 34 L.Ed.2d 217 (1972). In Morgan, plaintiffs argued that their right to due process was violated by training programs of the Ohio National Guard which allegedly made inevitable the unnecessary use of deadly force. Their claim of jurisdiction under § 1983 was not controverted. One of the questions on which certiorari was granted was whether the court of appeals' decision, which reversed a summary dismissal of the complaint and directed a hearing, "violate(d) long standing policy against interference by federal courts with state's legitimate activities." 41 U.S.L.W. 3221 (emphasis added).

Since the plaintiff has sufficiently alleged a nonfrivolous federal claim that the defendants have deprived him of constitutional rights guaranteed to him under the first and fourteenth amendments to the Constitution, his complaint cannot be dismissed for lack of jurisdiction. Bell v. Hood, 327 U.S. 678, 682, 66 S.Ct. 773, 90 L.Ed. 939 (1946); McClellan v. Shapiro, 315 F.Supp. 484, 487 (D.Conn.1970).

It is concluded that this court has jurisdiction of the present action under 28 U.S.C. § 1343(3) and the defendants' motion to dismiss on this ground is denied.

II. Failure to State a Claim

Defendants' second contention is that, even if this court has jurisdiction, the decision taken by the defendants to exclude the plaintiff from OCS is not judicially reviewable.⁵ Since no statute expressly precludes judicial review of National Guard actions,⁶ the only justifiable reason for refusal to review would be that "the common law of reviewability," 4 Davis, Administrative Law Treatise §§ 28.04-07 (1958), commands it. Defendants so argue, relying principally on Orloff v. Willoughby, 345 U.S. 83, 73 S.Ct. 534, 97 L.Ed. 842 (1953). But, despite the presence of expansive language in the opinion, a careful reading of Orloff does not support defendants' position.

Orloff presented the Supreme Court with a tangled web of issues. There were two statutory questions: must one specially inducted into the Army under the Doctors' Draft Act⁷ (1) receive a commission and (2) be assigned to some medical task. The majority answered "no" to the first question, and held that one inducted under the Act must be assigned to "duties generally within a doctor's field." 345 U.S. at 87, 73 S.Ct. at 537. Having reached this result, the Court examined the facts sufficiently to determine that Orloff had been assigned to duties within that area. Id. at 92, 73 S.Ct. 534. This aspect of the opinion, if anything, cuts against the defendants' position, particularly because the Court implied strongly⁸ that the claim of military discretion could not bar judicial review of a draftee's duty assignment which violated an applicable statute.

But beyond this, Orloff dealt with a question presenting constitutional overtones. The doctor was denied a commission when he refused to answer questions about Communist affiliations. The Court did, in fact, undertake to review this question and concluded that his refusal to answer constituted sufficient justification for the denial, despite the existence of a fifth amendment privilege. Professor Davis is surely right that this part of the Orloff opinion is "weak authority for unreviewability." Davis, supra, § 28.19.

After subjecting the Army's decision on these issues to review, the Court turned to Orloff's final contention. He argued that, since he was drafted as a doctor, he must be permitted to use all his medical skills or else was entitled to a discharge. He had not been permitted free rein of medical techniques; suspicious of his loyalty and fearful that he might stealthily obtain military secrets from patients whose minds he could control, the Army forbade him to use hypnosis or to administer certain drugs. Thus, this remaining question before the Court was exceedingly narrow: "Whether one lawfully inducted may . . . obtain a judicial review of his assignments to duty." 345 U.S. at 92, 73 S.Ct. at 539 (emphasis added). The oft-quoted pungent dicta about judicial deference to military decisions upon which the defendants here rely were uttered with respect to this narrow question only and should be read in the light of its origin. The precise holding of this part of Orloff retains its full force: decisions about "day to day operations of the armed forces," Lovallo v. Froehlke, 468 F.2d 340 (2d Cir., 1972), are beyond the scope of judicial review.⁹ But Orloff should not be misread to forbid judicial scrutiny of constitutional or statutory violations on the theory that all military personnel decisions ipso facto possess a sort of immunity from review.¹⁰

Moreover, a growing body of case law recognizes that Orloff does not preclude review of military decisions allegedly violating constitutional or statutory rights. In Hammond v. Lenfest, 398 F. 2d 705 (2d Cir. ...