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BOLLEN v. NATIONAL GUARD BUR.

April 12, 1978

EDWARD J. BOLLEN, Plaintiff,
v.
NATIONAL GUARD BUREAU, Defendant, EDWARD J. BOLLEN, Plaintiff, v. NICHOLAS P. KAFKALAS, R. J. POSEY, F. H. SMOKER, JR., PETER R. PHILLIPY, RICHARD L. PRAVE, Defendants



The opinion of the court was delivered by: COHILL

 Introduction

 Plaintiff, Edward J. Bollen, is a colonel in the Pennsylvania Air National Guard ("Pa. ANG") as well as an Air National Guard technician. Air National Guard technicians are full-time federal civilian employees who are required by law to be members of the National Guard as a condition of their continued employment as technicians. 32 U.S.C. § 709(b) (Supp. 1977).

 Air National Guard colonels, as members of the Air Force Reserve, are generally retired after 30 years service. 10 U.S.C. § 8851(a). Plaintiff claims, however, that certain actions taken by the Secretary of the Air Force and the Adjutant General of Pennsylvania conferred on him a property right in his military employment until age 60 so long as he remained otherwise qualified. (Those actions will be more particularly described hereafter.) However, in 1974 a decision was made to have technicians such as plaintiff (i.e. Air National Guard colonels with technician service beginning before 1955) considered each year for selective retention by a vitalization board. Plaintiff argues that the vitalization board cannot lawfully take from him, without due process of law, his right to military employment.

 The vitalization board considering plaintiff in 1977 recommended he not be retained, which recommendation was approved by the Adjutant General. Plaintiff was notified that because of the pending withdrawal of his federal recognition as a National Guard member, his employment as a technician would terminate.

 As a result, plaintiff filed the instant actions on December 29, 1977, alleging that the actions of the National Guard Bureau and certain Pennsylvania Air National Guard officers (the "individual defendants") deprived him of a property interest in continued military employment and infringed upon his right to free speech. Plaintiff seeks equitable relief, damages, costs and attorney's fees. A temporary restraining order ("TRO") was issued on December 29, 1977, barring the National Guard Bureau from changing plaintiff's status. A motion to dismiss, or in the alternative for summary judgment, filed by the defendant National Guard Bureau and a motion to dismiss filed by the individual defendants were denied. After a hearing, the TRO was extended by entry of a preliminary injunction on January 6, 1978.

 Because of the commonality of facts and nature of the proceedings, the cases were combined for trial and heard without a jury. At the conclusion of the hearing on the permanent injunction, the individual defendants' motion to dismiss the conspiracy claim predicated on 42 U.S.C. §§ 1985(3) and 1986 was granted. We concluded that plaintiff had not introduced at trial sufficient evidence of a conspiracy and that the alleged conspiracy did not involve class-based invidious discrimination. See Griffin v. Breckenridge, 403 U.S. 88, 102, 29 L. Ed. 2d 338, 91 S. Ct. 1790 (1971).

 Pursuant to Fed. R. Civ. P. 52, we make the following findings of fact and conclusions of law.

 Findings of Fact

 Plaintiff, Edward J. Bollen, is a colonel in the Pennsylvania Air National Guard ("Pa. ANG") and is presently assigned in his military capacity as an Operations Staff Officer of the 112th Tactical Fighter Group stationed at the Greater Pittsburgh Airport. He is also a civilian employee of the Technician Program of the Pa. ANG. To retain his occupation as an Air National Guard Technician under 32 U.S.C. § 709, plaintiff is required to maintain his military status as a member of the National Guard. Plaintiff is a "citizen of the United States" within the meaning of 42 U.S.C. § 1983.

 The individual defendants, Nicholas P. Kafkalas, R. J. Posey, F. H. Smoker, Jr., Peter R. Phillipy, and Richard L. Prave, are all officers of the Pa. ANG and management officials of its Civilian Technician Program.

 Defendant, National Guard Bureau, ("NGB") is an agency of the United States that is responsible for administering approved policies and programs of the Departments of the Army and the Air Force, publishing Army and Air National Guard Regulations, implementing such programs, and granting and withdrawing federal recognition of officers in each state including Pennsylvania.

 The amount in controversy exceeds $10,000.00.

 Plaintiff, now age 55, enlisted as an Aviation Cadet in the United States Army on August 22, 1942; entered active duty on March 3, 1943; and was commissioned a Second Lieutenant in the United States Army Air Corps on January 7, 1944. He was discharged from active service on September 21, 1947 and has been a member of the Pa. ANG continuously since April 22, 1949.

 Each time plaintiff was promoted, the promotion was a unit vacancy promotion and not a promotion pursuant to the Reserve Officer Personnel Act of 1954 (ROPA). There are no mandatory promotions to colonel in the Air National Guard.

 The plaintiff was hired as a Civil Service Civilian Technician of the Pa. ANG on December 1, 1951 and since then has been continuously so employed.

 10 U.S.C. § 8851(a) (Supp. 1977) requires that all Air National Guard colonels be separated from the Air Force Reserve after thirty years commissioned service or five years ingrade service, whichever is later. Until 1972, the National Guard Bureau interpreted the so-called "Grandfather Clause", § 527 of the ROPA, later incorporated into § 28 of Public Law 85-861 (see 10 U.S.C. § 8846, note) to mean that there was an exception to mandatory separation, based on total years of service, for Guard Technician Colonels who had been continuously employed prior to July 1, 1955 (the effective date of the ROPA), unless for cause, physical disability or having twice been passed over for promotion. The plaintiff relied on this interpretation in making employment, career and pension decisions.

 On October 13, 1972, the Office of the Judge Advocate General, United States Air Force, issued an opinion interpreting the Grandfather Clause and concluded that only majors and below (those officers subject to mandatory promotion provisions) were protected from being "promoted out" of their civil service positions by reason of the mandatory promotion provisions of Chapter 837, Title 10 of the United States Code.

 Because of this departure from the prior interpretation of the Grandfather Clause, on January 24, 1973, the Secretary of the Air Force delegated to the Chief, National Guard Bureau, discretionary authority, pursuant to 10 U.S.C. § 8851(c) (Supp. 1977), to retain until age 60 in active status those Air National Guard officer air technicians who had been continuously employed prior to July 1, 1955. In this communication (see Plaintiff's Exhibit 4), in light of the previously-assumed authority for retention under the Grandfather Clause, the Secretary recommended that where the officer was fully qualified to hold his military position and properly performing his technician job, he should be retained in his technician employment.

 The Senate Committee on Armed Services, in its report on the amendments to 10 U.S.C. § 8851(c), noted that the bill "contains a provision which will permit the Secretaries of the Army and the Air Force on a permissive basis to retain reserve officers who are technicians in an active military status until age 60, notwithstanding the operation of the Reserve Personnel Laws which would eliminate them because of promotion, pass over or length of service. The committee made this provision permissive with the result that all reserve technician officers could remain until age 60."

 The NGB granted discretionary authority to the Adjutant General of Pennsylvania to retain plaintiff, among others, in active status until the age of 60. Such a policy was approved by the Secretary of ...


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