The opinion of the court was delivered by: Mihm, District Judge.
This case involves sensitive questions as to the authority of
federal courts to adjudicate personnel disputes within the
National Guard. In particular, this case tests the parameters
of that authority where the denial of re-enlistment of a
Guardman is alleged to be violative of his constitutional
rights. The case is presently before the Court on the Motion of
Defendants to Dismiss Plaintiff's Complaint pursuant to Rule
12(b)(6) of the Federal Rules of Civil Procedure. In the
alternative, Defendants request this Court to grant them
summary judgment under Rule 56(b) of the Federal Rules.
Plaintiff, a former Master Sergeant and federal technician in
the Illinois Air National Guard, brings this action against his
former military supervisors for alleged violations of his
constitutional rights pursuant to the First, Fifth, Ninth, and
Fourteenth Amendments of the United States Constitution, for
unlawful discrimination pursuant to Title VII of the Civil
Service Reform Act, for violations of the Civil Rights Act,
42 U.S.C. § 1983, and for various state law claims. While
Plaintiff was a Master Sergeant in the Illinois Air National
Guard, he simultaneously held a civilian position as a
production controller of aircraft. A federal technician in this
civilian position must be a member of the Air National Guard
and hold the military grade specified for that position. See,
32 U.S.C. § 709(b).
Plaintiff's unit commander, Lt. Col. Troy, denied Plaintiff's
re-enlistment in the Air National Guard. In accordance with Air
National Guard Regulation 39-09, Supplement 1, that decision
was reviewed by the Group Commander and the Commander, Illinois
Air National Guard, and both concurred with Lt. Col. Troy's
decision. At Plaintiff's request, the Adjutant General of the
State of Illinois also reviewed the facts and concurred in the
decision to deny re-enlistment. As a result, Plaintiff was
separated from the Illinois Air National Guard on May 8, 1982.
The current Adjutant General, Major General Harold G.
Holesinger, also reviewed this decision, and concurred in the
denial of Plaintiff's re-enlistment.
At the time that he was denied re-enlistment, Plaintiff had
more than 29 years of military service. He received an
honorable discharge, and is eligible to receive military
retirement benefits upon obtaining the age of 60. Plaintiff was
separated from his technician position on June 5, 1982,
pursuant to the provisions of 32 U.S.C. § 709(e)(1); he was
eligible for and has been receiving a discontinued service
retirement annuity under the Civil Service Retirement System
since June 6, 1982.
All Defendants in this litigation are present or former
officers of the Illinois National Guard. Defendant Holesinger
is the current Adjutant General of the State of Illinois and is
being sued in his official capacity only. All other Defendants
are sued in their official and individual capacities. With the
exception of Defendant Holesinger, all Defendants were
supervisors of the Plaintiff who had the authority to
effectively recommend and/or approve the retention or
separation of Plaintiff in the Illinois Air National Guard.
Plaintiff claims that Defendants denied his application for
re-enlistment following the expiration of his enlistment term
in order to retaliate against him for his exercise of rights
protected by Title VII of the Civil Service Reform Act,
5 U.S.C. § 7101 et seq. Plaintiff, a long time union official,
engaged in what Plaintiff calls "some questionable conduct"
during 1981, the result of which, Plaintiff claims, Defendants
Ballow and Troy recommended that he not be retained following
the end of his current enlistment period, in 1982. Plaintiff
had a right to appeal this recommendation to a Selective
Retention Board, which overruled the recommendation in July
1981, and ruled that Plaintiff be permitted to re-enlist.
In September of 1981, Defendant Ballow advised Plaintiff that
the Adjutant General had approved Plaintiff's retention in the
Air National Guard and that he had been determined acceptable
for reenlistment. In October 1981, Plaintiff received an
"outstanding" rating on his military performance report.
Plaintiff claims that, between the time of the Selective
Retention Board's decision in July 1981, and his separation
from the Guard in May of 1982, no further unfavorable examples
of his presumed unfitness for duty occurred. Nevertheless, he
was denied re-enlistment in May of 1982, as a result of which
he lost his employment as a civilian technician pursuant to
32 U.S.C. § 709(e)(1).
Plaintiff had previously filed an unfair labor practice charge
with the Federal Labor Relations Authority, challenging the
efforts of Defendants to discipline or terminate him. He claims
that he was disciplined for filing this charge, and, as a
result, he filed a new charge. The FLRA issued a complaint
following its investigation of this latter charge. In the
resulting unfair labor practice case, the Administrative Law
Judge for the Federal Labor Relations Authority concluded that
the sole reason for denying Plaintiff his re-enlistment was the
Defendants' determination to "rid themselves" of Plaintiff due
to his filing unfair labor practice charges with the FLRA.
On appeal, the Federal Labor Relations Authority reversed the
ALJ's decision on jurisdictional grounds. Dept. of Defense,
Ill. Air Nat'l Guard 182d Tactical Air Support Group, Peoria,
Ill. and Illinois Air Chapter 34, Ass'n of Civil Technicians,
Inc., 19 FLRA No. 11 (1985). While FLRA affirmed the ALJ's
rulings to the extent consistent with FLRA's disposition, FLRA
concluded that it lacked jurisdiction over the matter. The
Authority reasoned that, under 32 U.S.C. § 709(e)(5), appeal
from terminations of civil technicians, in either their
civilian or military capacities, may terminate only with the
state adjutant general. The United States Court of Appeals for
the District of Columbia Circuit denied the Union's subsequent
petition for review on essentially the same ground. Illinois
Air Chapter 34 Ass'n of Civilian Technicians, Inc. v. FLRA,
802 F.2d 1483 (D.C.Cir. 1986) (unpublished opinion).
DEFENDANTS' CLAIM OF INTRA-MILITARY IMMUNITY
In their Motion, Defendants claim that the doctrine of
bars the Plaintiff's claims for monetary damages against his
military supervisors and co-workers. Defendants state that the
military authority to supervise and administer National Guard
technicians is vested in the Adjutant General of each state.
32 U.S.C. § 709(c). Defendants note that the United States Supreme
Court has forbidden constitutional tort lawsuits among members
of the military due to the existence of "special factors
counselling hesitation." See, Chappell v. Wallace,
462 U.S. 296, 103 S.Ct. 2362, 76 L.Ed.2d 586 (1983); United States v.
Shearer, 473 U.S. 52, 105 S.Ct. 3039, 87 L.Ed.2d 38 (1985) (no
review of questions involving the management and administration
of the armed forces). Defendants further note that, in Ogden
v. United States, 758 F.2d 1168 (7th Cir. 1985), the Seventh
Circuit ruled that Chappell precluded monetary relief for
military plaintiffs against military defendants.
In Ogden, the Court of Appeals did not address the issue of
whether a civil rights action could be maintained in the face
of Chappell, but courts in other circuits have rejected §
1983 claims entirely — for damages and for injunctive relief —
in personnel matters in the military context. See, Crawford v.
Texas Army National Guard, 794 F.2d 1034, 1036-37 (5th Cir.
1986); Martelon v. Temple, 747 F.2d 1348, 1350-51 (10th Cir.
1984), cert. denied, 471 U.S. 1135, 105 S.Ct. 2675, 86
L.Ed.2d 694 (1985). Defendants note that the Third Circuit has
held that damage claims are barred, but that injunctive relief
remains available in intra-military lawsuits. Jorden v.
National Guard Bureau, 799 F.2d 99, 106 (3rd Cir. 1986),
cert. denied, ___ U.S. ___, 108 S.Ct. 66, 98 L.Ed.2d 30
(1987). In Jorden, the Third Circuit stated that it believed
that the Seventh Circuit would join in its view of judicial
intervention for injunctive relief only in light of Ogden
Jorden, 799 F.2d at 109. Consequently, Defendants contend that
all of the individual Defendants who have been sued in their
individual capacities should be dismissed from this lawsuit.
In response, Plaintiff states that the Seventh Circuit has yet
to rule on the issue of whether or not a civilian technician in
Spence's position is barred from seeking relief in the form of
damages. According to Plaintiff, Ogden furnishes authority
for the maintenance of a § 1983 action against military
superiors, at least for injunctive relief. Plaintiff observes,
however, that Ogden did not involve National Guard civilian
technicians, so that the differences between civilian
technicians and the military servicemen involved in Ogden
leave open Plaintiff's claim that damages may also be recovered
under circumstances such as those present in this case.
Plaintiff claims support for his position in the dissenting
opinion of Chief Judge Gibbons in Jorden, 799 F.2d at 111.
Jorden involved a "whistle blowing" civilian technician who
claimed that he was dismissed from the National Guard for his
First Amendment activities. In his resulting civil rights
discrimination action, he sought injunctive relief and damages.
In his dissent, Chief Justice Gibbons agreed with the Jorden
majority that injunctive relief should be available, but
disagreed with dismissal of the damages aspect of that case.
Noting that Chappell involved claims brought by enlisted Navy
personnel against their federal naval officers, Chief Judge
Gibbons argued that the liability of state National Guard
officials is not necessarily the same for immunity purposes. He
concluded that the Jorden majority had merely "side stepped"
this issue, thus leading to a result which "automatically
immunize[d] the state officials." 799 F.2d at 114. Chief Judge
Gibbons' criticism of the majority's analysis was as follows:
Id. at 114-15 (footnote omitted).
Plaintiff submits that Chief Judge Gibbons' analysis is
persuasive, because it points out the significant differences
between the essentially civilian character of Plaintiff's
relationship with his superiors and the purely military
concerns motivating the Supreme Court to reach its decision in
Chappell. It is Plaintiff's view that such differences
suggest that the Seventh Circuit would not automatically apply
Ogden to the factual context of this case, as Defendants
In their reply, Defendants note that in the Jorden case,
which involved a National Guard civilian technician — the same
status as Plaintiff Spence — the majority ruled that "damages
actions by military personnel against superior officers for
constitutional violations" are barred. Id. at 108. The
Jorden majority also stated that in Chappell, the Supreme
Court laid down a general rule barring such claims without
authorizing a "fact specific inquiry." Id.
Defendants argue, furthermore, that Chief Judge Gibbons'
dissent is not persuasive with respect to his description of
the "civilian" state oriented character of the National Guard.
By law and by constitution, the Air National Guard is part of
the organized militia. That is, it is a military force subject
to state and federal control which is available to be ...