Plaintiff along with all other Pa. ANG officers with 20 years service and entitlement to retirement pay have been reviewed annually under ANGR 36-06.
In April of 1976, the plaintiff received an invitation to attend a dinner honoring Congressman Daniel Flood, which invitation he promptly declined. On May 1, 1976, General Peter Phillipy ordered plaintiff to attend the dinner. Plaintiff expressed his displeasure at being required to attend the meeting to various of the defendants but, as ordered, attended the dinner with General Phillipy. On September 9, 1976, plaintiff sent a letter to defendant Posey in which he revealed evidence that implicated the then Adjutant General, Harry Mier, in allegedly improper and illegal conduct. On September 10, 1976, prior to receipt of the letter in Annville, General Posey gave the plaintiff permission to attend the weekend drills at the Pittsburgh unit. On September 13, 1976, General Posey received the plaintiff's letter concerning the Mier's situation; on the same date, plaintiff delivered a copy of the same letter to the defendant Phillipy. On September 15, 1976, the defendant Posey called and withdrew the previously given approval to attend the September drills at the Pittsburgh Unit and ordered the plaintiff to stop conducting investigations and staff visits; on the same date, the defendant Phillipy ordered the plaintiff to stop investigating and to stay out of all files. On September 16, 1976, General Mier posted a letter to the National Guard Bureau requesting the withdrawal of the plaintiff's federal recognition and his transfer to the Air Force Reserve. On the same date, defendant Phillipy ordered the plaintiff out of the Mission Commander's Office.
Because plaintiff was not selected for retention under the 1976 selective retention procedures, he brought an action in federal district court. This action resulted in a settlement of the case and a stipulated dismissal with prejudice. As part of the settlement, the parties agreed that plaintiff would be placed in a compatible military position with his technician status, that he would be continued in his technician status, and that federal recognition would not be withdrawn. This agreement was properly carried out by the parties.
The individual defendants have made efforts in the ensuing period to preclude the plaintiff from performing both his military and civilian technician functions. These actions include refusing to deliver to plaintiff mail directed to the Mission Commander, placing him in an office unsuitable to his rank, denying him customary and necessary staff support, excluding him from all meetings and management functions, and denying him mandated pay raises.
On August 15, 1977, the plaintiff was notified by the Adjutant General's Office that he would be considered under ANGR 36-06 for retention in the Pa. ANG.
In August, 1977, ANGR 36-06 was revised and advance copies, with a cover letter dated August 25, 1977 stating the advance copy was effective immediately, were sent to all states including Pennsylvania (Defendant's Exhibit E). The revised ANGR 36-06 (advance copy) was implemented to govern 1977 selective retention advisory boards and procedures. Revised ANGR 36-06 was subsequently printed with a stated effective date of October 7, 1977.
Paragraph 7 of ANGR 5-5 states "an 'Advance Copy' may be forwarded to the State adjutants general at the same time that the manuscript is processed for printing." Paragraph 8 of ANGR 5-5, however, provides that, where provisions of two publications conflict, the publication with the later date controls.
By communication from the Adjutant General's Office dated September 12, 1977, plaintiff was informed that he would be considered by a selective retention advisory board convening on or about October 5, 1977 pursuant to the provisions of revised ANGR 36-06 (Plaintiff's Exhibit 15). Plaintiff was advised he could submit a letter to the board inviting attention to any matter before the board. Plaintiff submitted to the selective retention advisory board a letter in support of his retention.
Under the 1977 selective retention process, which was taken pursuant to the revised ANGR 36-06, plaintiff's name was submitted to the National Guard for non-retention in the active Air National Guard. The Board of Officers convened under ANGR 36-06 considered a letter from the plaintiff, an impact statement offered by the defendant Prave and Officer Efficiency Reports ("O.E.R.'s"). Of the O.E.R.'s that the Board considered, all except those written after the beginning of the plaintiff's difficulties arising from the Mier investigation rated the plaintiff as extraordinarily qualified; of the three O.E.R.'s written after the beginning of his difficulty, one has been voided, one is under appeal, and the third, which is written by defendants Prave, Smoker and Posey, was unavailable to the defendant. (Plaintiff's Exhibits 30, 31 and 32.)
As a result of the 1977 selective retention process, plaintiff was notified that his federal recognition as an Air National Guard officer would be withdrawn pursuant to paragraph 11c of ANGR 36-06 and paragraph 13a(10) of ANGR 36-05. In addition, he was notified that because of the pending withdrawal of his federal recognition, his employment as a technician would be terminated. (Plaintiff's Exhibits 16, 17.)
Plaintiff at the present time is eligible to receive retirement compensation under the Pennsylvania State Employees Retirement System amounting to $15,120.00 annually. He will also be eligible for military retirement at the age of 60 in the amount of approximately $10,230.00.
Conclusions of Law
Any actions performed by the individual defendants in their capacity as Pa. ANG officers were performed under "color of statutes, ordinances, regulation, custom, or usage" of the Commonwealth of Pennsylvania. See Lasher v. Shafer, 460 F.2d 343 (3d Cir. 1972); Syrek v. Pennsylvania Air Nat'l. Guard, 371 F. Supp. 1349 (W.D. Pa. 1974), rev'd on other grounds, 537 F.2d 66 (3d Cir. 1976).
Plaintiff is a citizen of the United States within the meaning of 42 U.S.C. § 1983.
This court has jurisdiction under 28 U.S.C. § 1343(3) and (4) and 42 U.S.C. § 1983 as to C.A. 77-1459 and under 28 U.S.C. § 1331 as to C.A. 77-1458. See, e.g., Mindes v. Seaman, 453 F.2d 197 (5th Cir. 1971).
Under the criteria set forth in Mindes v. Seaman, supra, at 201-02, this case is appropriate for judicial review. First, plaintiff has raised substantial claims of infringement of important due process and free speech constitutional rights. Second, the potential injury to plaintiff if review is refused is substantial, because it would result in the loss of both military and civilian positions having significant prestige and compensation benefits (it is unlikely that plaintiff at age 55 could secure substitute employment).
Third, the interference with military functions would be slight, because the court would only review whether the procedures used to select plaintiff for non-retention were constitutionally permissible. The court would not scrutinize whether military decisions as to the composition of the military forces were correct, nor would the court specify a particular position for plaintiff to hold. Fourth, the issues that plaintiff has raised do not involve specialized military expertise or discretion. The case requires only the interpretation of statutes and regulations and the application of basic constitutional principles to mostly undisputed facts. Tennessee v. Dunlap, 426 U.S. 312, 48 L. Ed. 2d 660, 96 S. Ct. 2099 (1976), cited by the defendant National Guard Bureau, is not applicable here.
The "Grandfather Clause" (see 10 U.S.C. § 8846 note) did not convey to plaintiff a property interest in his military employment, because a colonel is not subject to mandatory promotion. Plaintiff has no reasonable expectation of continued employment based on the Grandfather Clause. See generally Board of Regents v. Roth, 408 U.S. 564, 33 L. Ed. 2d 548, 92 S. Ct. 2701 (1972); Perry v. Sindermann, 408 U.S. 593, 33 L. Ed. 2d 570, 92 S. Ct. 2694 (1972).
Plaintiff, however, does have a property interest in continued military employment conferred on him on May 9, 1973 by the Adjutant General of Pennsylvania pursuant to the authority delegated to the Chief, National Guard Bureau on January 24, 1973 under 10 U.S.C. § 8851 (c) (Supp. 1977). The specific language leading to this conclusion is found in the letter dated April 12, 1973 from Francis S. Greenlief, Chief, National Guard Bureau, which stated:
"In order to clearly establish their [air technician officers employed prior to July 1, 1955] status, the National Guard Bureau proposes to forward a one time list to the Air Reserve Personnel Center with instructions that the personnel are authorized to be retained to age 60 provided the officer is fully qualified to hold his military position and properly performing his technician job."
(Plaintiff's Exhibit 4.) We view as particularly significant that in the above sentence there are specified only two provisos to the retention authorized to age 60. Whether any distinction can be made between "retention" and "authorizing retention" is a question too subtle in light of the reasonable expectations of the affected technicians.
Defendants argue that such a conclusion conflicts with statutory provisions, but cite none and we are unaware of any.
Plaintiff's property interest in continued military employment is qualified, however. 32 U.S.C. § 709(e) (1), (2) and (3) provide for the separation of a technician for either not holding a compatible military grade or being separated from the National Guard, for failing to meet military security standards or for cause. None of these bases for separation have been applicable to plaintiff, however.
As the Supreme Court said in Roth and Sindermann, before a property right can be taken, due process must be afforded. Due process, of course, is an elastic concept, Cafeteria & Restaurant Workers Union v. McElroy, 367 U.S. 886, 895, 6 L. Ed. 2d 1230, 81 S. Ct. 1743 (1961), but clearly a proceeding pursuant to ANGR 36-06 falls far short of that required. In the first place, ANGR does not test whether an officer being considered is properly performing his technician or military jobs (an officer cannot be considered by the Board unless he is physically qualified for worldwide assignment), but rather whether the officer being considered is vital to the continuity of the National Guard program. Secondly, the procedural safeguards afforded the subject of an ANGR 36-06 proceeding are patently inadequate, as counsel for the individual defendants conceded. Without deciding what procedures would be required for a fair hearing, we note that safeguards lacking include the opportunity to present evidence, the right to counsel, the right to call witnesses, the right to cross-examine witnesses, the right to be informed of the Board's decision, and the right to be furnished a transcription of the proceedings before the Board. We conclude, therefore, that to subject plaintiff to an ANGR 36-06 procedure would deprive him of property without due process of law.
Plaintiff points out that the ANGR 36-06 Board reviewing him proceeded under the advance copy of the regulation, which was not effective until October 7, 1977, the effective date of the printed copy. (See paragraphs 8 and 9 of ANGR 5-5, Plaintiff's Exhibit 11, which together provide that where publications have conflicting effective dates, the later date governs.) Plaintiff has not, however, directed our attention to any material difference between the two versions of the regulation, so we cannot perceive any harm to plaintiff from the Board's using the October 7, 1977 version.
Based on plaintiff's extensive testimony concerning defendants' actions, we have concluded in addition that defendants' actions were taken to punish plaintiff for the exercise of his first amendment rights. The defendants offered no evidence to the contrary.
Cases cited by the defendants are unpersuasive to the court in this case. All of them are distinguishable on their facts, in light of the peculiar background of the case sub judice.
Accordingly, we order the entry of the accompanying permanent injunction.
Maudice B. Cohill, Jr. / UNITED STATES DISTRICT JUDGE
[EDITOR'S NOTE: The following court-provided text does not appear at this cite in 449 F. Supp.]
AND NOW, to-wit, this 12th day of April, 1978, it appearing to the Court upon the verified complaint of the Plaintiff and after hearing in Open Court that the Plaintiff is threatened with an illegal and improper termination of his employment as a Civilian Technician Employee of the Pennsylvania Air National Guard; that the Plaintiff will suffer irreparable harm and injury if said termination is permitted to occur; and that greater harm will result to the Plaintiff from denial of injunctive relief than will result to the Defendant from the grant thereof. It is hereby ORDERED, ADJUDGED AND DECREED:
1. That a Permanent Injunction hereby issue enjoining National Guard Bureau, its officers, representatives, and employees, and all persons acting in concert with it, or on its behalf from:
(a) Denying the Plaintiff his right to continued employment as an officer in the Pennsylvania Air National Guard without due process of law;
(b) Implementing the National Guard Bureau Order withdrawing the Plaintiff's federal recognition;
(c) Transferring the Plaintiff from duty with the Pennsylvania Air National Guard;
(d) Terminating Plaintiff's Air Technician employment; and
(e) Changing in any way the status of the Plaintiff as established by the Stipulation of Council entered in this Court at C.A. No. 76-1486 and C.A. No. 76-1487.
2. That Defendant, its officers, representatives, and employees are directed to take all actions which may be necessary to assure compliance with the terms of this order.
3. That Plaintiff's request for damages and counsel fees is denied.
4. That judgment for costs be and hereby is entered in favor of the Plaintiff against the Defendants.
Maudice B. Cohill. Jr. / UNITED STATES DISTRICT JUDGE
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