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:
Turning to the substance of the matter, the federal military
and state National Guards differ in obvious and significant
ways. As the Court explained in Chappell, the principal
rationale for barring intra-military damage actions by federal
personnel is the concern for "disruption of the peculiar and
special relationship of the soldier to his superiors that might
result if the soldier were allowed to hale his superiors into
court." 462 U.S. at 304, 103 S.Ct. at 2367 (citations and
internal punctuation omitted). Whatever one might think of the
validity of this reasoning as it pertains to the federal
it simply is not relevant to state National Guards. While those
organizations have their military aspects, they are principally
civilian in character, and the inter-relationships of their
members are principally civilian in character. The specifics of
this case highlight these facts. Jorden was hired by PaANG as a
civilian technician, and he enlisted only because membership in
the Guard was a prerequisite to civilian employment. As a
member he was required to serve in a military capacity for only
15 days out of the year. During the rest of the time he served
as a civilian employee and was not subject to military command.
Thus it is quite clear that the attenuated concern for military
discipline in this context bears no resemblance to the concern
for such in the federal context. Consequently, the rationale
for shielding federal military officers from damage suits does
not support shielding state National Guard officials from
Id. at 114-15 (footnote omitted).