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July 29, 1988


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).


In their Motion, Defendants claim that the doctrine of intra-military immunity 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
  similar suits.

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 contend.

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 ...

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