On Appeal from the United States District Court for the District of New Jersey (D.C. Crim. No. 84-8121).
Before: SEITZ, BECKER and ROSENN, Circuit Judges
The issue before us, on a certified question from the district court, 28 U.S.C. § 1292(b) (1982), is whether Air National Guard ("ANG") technician supervisory personnel and the New Jersey Adjutant General act under color of state law for the purposes of 42 U.S.C. § 1983 (1982) when participating in personnel decisions resulting in the dismissal of ANG technicians. The district court held that they do, and we affirm.
Appellees Roy A. Johnson and John J. Sheller were ANG technicians and stewards in the technicians' union, Local 377 of the American Federation of Government Employees. As a result of a series of events arising out of a dispute over a proposed change in the technicians' work hours, appellees were discharged. The discharge were upheld in administrative hearings before an ANG hearing examiner, whose findings were adopted by the New Jersey Adjutant General.
On August 6, 1982 appellees brought this action in the district court for the district court for the District of New Jersey against their supervisors John Murphy and Charles Young; Secretary of the Air Force Verne Orr; Major General Willard Menard, who was New Jersey Adjutant at the time of appellees discharge; and Major General Francis Gerard, who succeeded Menard as New Jersey Adjutant General. Appellees' complaint alleged improper discharge in violation of their first and fifth amendment rights (Bivens claims)*fn1; improper discharge in violation of the Administrative Procedure Act (APA), 5 U.S.C. § 701 et seq. (1982); and violation of various first and fifth amendment infractions. An as a defendant Billy McDaniel, a technician personnel concerning the discharge of plaintiffs.*fn2
Following a hearing in March, 1983, the district court transferred all damage claims to the United States Claims Court pursuant to 28 U.S.C. § 1406(c) (1982) and dismissed the Bivens claims. Both sides moved for summary judgment with respect to the remaining claims. In July, 1984 the district court granted summary judgment for plaintiffs on their APA claims and summary judgment for defendants with respect to the due process claim. The district court denied summary judgment with respect to the other claims brought under section 1983, specifically rejecting defendants' argument that a section 1983 action could not be brought against National Guard supervisory personnel. On a motion for partial reconsideration, the district court agreed to certify for interlocutory appeal the question whether persons such as Murphy, Young, McDaniel, and Menard, who discharge technicians employed under 32 U.S.C. § 709, act under the color of state law for section 1983 purposes. This court accepted the certification and defendants appealed.*fn3
The question whether appellants acted under color of state law is difficult because of the National Guard's unusual "hybrid" status as an agency with both federal and state characteristics. In New Jersey Air Nat'l Guard v. Fed. Labor Rel. Auth., 677 F.2d 276 (3d Cir. 1982), we described this status as follows:
The National Guard occupies a unique position in the federal structure...This role does not fit neatly within the scope of either state or national concerns; historically the guard has been, and remains, something of a hybrid. Within each state the National Guard is a state agency, under state authority and control. At the same time, the activity, makeup, and function of the Guard is providedfor, to a large extent, by federal law. Id. at 278-279.
Indeed, the Guard's function, as well as its structure, is hybrid. The Guard "serves the state in time of civil emergencies within the state as well as being available for federal service during national emergencies." Engblom v. Carey, 522 F. Supp. 57, 65 (S.D. N.Y. 1981).
Appellants focus on the federal statutory scheme that governs ANG, 32 U.S.C. § 709 (1983). They point out first that the 1968 National Guard Technicians Act makes them (with the exception of Adjutant General Menard, a state cabinet officer appointed by the governor) federal employees.*fn4 Appellants further emphasize that their authority to discharge appellees derives directly and exclusively from federal statute and that such discharges are effected pursuant to regulations prescribed by the Secretary of the Air Force, 32 U.S.C. § 709(e), (e),*fn5 They contend that New Jersey Air National Guard Regulations 40-13 (NJANG) does not constitute state law for section 1983 purposes because it simply restates the relevant federal regulations: NJANG's stated purpose is to "provide for the administration of the NJ Army and Air National Guard Technician Program and implement the provisions of the National Guard Bureau Technician Personnel Manual, Technician Personnel Pamplets and applicable regulations of the U.S. Civil Service Commission's Federal Personnel manual." (emphasis added) Appellants argue that they could not possibly have acted under the color of state law, for there is no state law directing or authorizing their actions.
Appellants also argue that the Supreme Court's holding in Bush v. Lucas, 462 U.S. 367, 76 L. Ed. 2d 648, 103 S. Ct. 2404 (1983), that congressional enactment of a comprehensive civil service scheme precluded an implied Bivens- type cause of action, should be extended to section 1983 actions. Because ANG operates pursuant to a comprehensive legislative scheme, appellants argue, a section 1983 remedy is inapposite.*fn6
Appellees rejoin that the state is so heavily involved in the National Guard program that the actions complained of were under color of state law. Their argument focuses on the Guard's actual administrative authority at the state level. The governor is the commander-in-chief of each Guard unit and the adjutant general, a state officer, is the chief acting executive. Appellees' discharge was effected by Adjutant General Menard: the other appellants worked under Menard. Appellees also observe that while the other appellants are federal employees, they had to maintain their rank in the state guard in order to maintain their employment as federal technicians and thus be in the position to discharge appellees.*fn7
The "under color of state law" requirement is identical to the "state action" requirement of the fourteenth amendment. Lugar v. Edmondson Oil Co., Inc, 457 U.S. 922, 73 L. Ed. 2d 482, 102 S. Ct. 2744 (1982), Krynicky v. University of Pittsburgh, 742 F.2d 94 (3d Cir. 1984) Thus, a showing that actions were "under color of state law," like a showing of the presence of "state action," does not require that the challenged action be pursuant to a state statute. Rather, the question is "whether there is a sufficiently close nexus between the State and the challenged action," Jackson v. Metropolitan Edison Co., 419 U.S. 345, 351, 42 L. Ed. 2d 477, 95 S. Ct. 449 (1974), or whether the state "has so far insinuated itself into a position of interdependence" that there is a "symbiotic relationship" between the actor and the state such that the challenged action can "fairly be attributed to the state," Krynicky, supra, at 99.
There is no set formula for determining whether the employees of an agency of an agency with both state and federal characteristics act under color of state law. All of the circumstances must be examined to consider whether the actions complained of were sufficiently linked to the state. See Lake Country Estates Inc. V. Tahoe Regional Planning Agency, 440 U.S. 391, 59 L. Ed. 2d 401, 99 S. Ct. 1171 (1979). A crucial inquiry is "whether day-to-day operations are supervised by the Federal [or state] government." Detore v. Local 245 Jersey City Public Employees Union, 615 F.2d 980, 983 (3d Cir. 1980) (quoting United States v. Orleans, 425 U.S. 807, 815, 48 L. Ed. 2d 390, 96 S. Ct. 1971 (1976)).
While the National Guard's hybrid status complicates this inquiry, we have strong guidance from our opinion in Lasher v. Shafer, 460 F.2d 343 (3d Cir. 1972), which involved facts strikingly similar to the facts of this case. In Lasher, National Guard technicians alleged that they had been demoted and abused by their supervisors because of their active union involvement. We concluded that defendants had acted under color of state law. We noted that the Pennsylvania National Guard is part of the state militia,*fn8 that the Pennsylvania Governor is commander-in-chief of the Guard, and that defendants had not been called into service of the United States at the time of the actions complained of. Id. at 346. Moreover, we explicitly rejected the argument, stressed by appellants in the instant case, that because the source of the National Guard's authority is federal, even actions administered at the state level were not under the color of state law. Id. at 348.
Lasher does not control this case because it concerned events that occurred prior to the National Guard Technicians Act of 1968. Although the 1968 Act explicitly refused to address whether the conclusion that National Guard personnel acted under the color of state law was altered by the 1968 Act. Therefore, we must make that determination in this case.
The 1968 Act, inter alia, made National Guard technicians, who had been state "caretakers" under the previous statute, federal employees. The fact that the Act conferred federal employees. The fact that the Act conferred federal employee status on appellees is irrelevant to the issue of whether those who discharged them acted under color of state law. See supra note 4. The 1968 Act also made appellants, with the exception of Adjutant General Menard, federal employees; this too is not dispositive because the critical inquiry remains whether their actions were made possible by authority derived from the state. See Rowe v. State of Tennessee, 609 F.2d 259, 263 (6th Cir. 1977) (explicitly rejecting the claim that "since as National Guard technicians they are federal employees, their disciplinary or retaliatory actions against Rowe were likewise under color of federal law.")
The crucial question is whether the 1968 Act was either intended to render, or had the effect of rendering the National Guard more federal in character to the point where technician supervisory personnel and the adjutant general can no longer be considered as acting under color of state law when participating in personnel decisions resulting in the discharge of ANG technicians. This question has been considered by the Fifth and Sixth Circuits, both of which have held that the 1968 Act was not designed to federalize the National Guard, and that guard officials may be sued under section 1983. Rowe v. State of Tennessee, 609 F.2d 259 (6th Cir. 1979); NeSmith v. Fulton, 615 F.2d 196 (5th 1979). See also Schultz v. Wellman, 717 F.2d 301 (6th Cir. 1983) (following Rowe);*fn9 Bollen v. National Guard Bureau, 449 F. Supp. 343, 349 (W.D. Pa. 1978) (following Lasher without discussing the 1968 Act); Syrek v. Pennsylvania Air National Guard, 371 F. Supp. 1349 (W.D. Pa. 1974) (following Lasher after explicitly finding that the 1968 Act did not federalize the Guard), rev'd on other grounds, 537 F.2d 66 (3d Cir. 1976); contra Vargas v. Chardon, 405 F. Supp. 1348, 1351 (D.P.R. 1975) (holding adjutant general not liable under section 1983 without discussing the 1968 Act).
The legislative history of the 1968 Act explicitly reveals the several purposes of that Act; federalizing the Guard's administration was not among them. The House Report unequivocally stated Congress' goals in passing the Act:
In authorizing federal employee status for the National Guard technicians, the purpose of this legislation is--
(a) to provide a retirement and fringe benefit program which will be both uniform and adequate;
(b) to recognize the military requirements and the State characteristics of the National Guard by providing for certain statutory administrative authority at the state level with respect to the technician program (emphasis added)
(c) to clarify the technician's legal status which in certain areas has been the subject of conflicting court decisions, especially on the matter of whether technicians are covered under the Federal Tort Claims Act regarding third party actions against the U.S. Government.
H.R. Rep. No. 1823, 90th Cong., 2d Sess. (1968) reprinted in 1968 U.S. Code Cong. & Ad. News 3318, 3319.
A more express statement of congressional objectives could not be asked for, and none of these objectives suggests that Congress intended to reduce the state involvement in the Guard. Two of the goals --providing technicians with a uniform and adequate fringe benefit program and clarifying the status of Guard technicians for the purpose of the Federal Tort Claims Act-- are irrelevant to whether technician supervisory personnel and the adjutant general act under color of state law. The third goal, to "recognize the State characteristics of the National Guard," ...