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Luigi v. Major General Nicholas P. Kafkalas

decided: September 19, 1978.



Before Adams, Weis and Higginbotham, Circuit Judges.

Author: Weis


Whether a newly appointed National Guard technician has a property interest in his employment is the nub of this appeal. The district court determined that administrative regulations imposing a period of probation without tenure were inconsistent with a statutory provision that an employee may be discharged only for cause.*fn1 After an analysis of statutory purposes and legislative history, we conclude that the regulations may be read in harmony with the statute. Accordingly, we vacate the judgment of the district court in favor of the plaintiff.

Plaintiff was hired as an electronics mechanic for the Pennsylvania National Guard under the provisions of the National Guard Technician Act of 1968, 32 U.S.C. § 709. His appointment began on June 16, 1975, and was stated in writing to be conditioned upon completion of a one-year trial period. Despite in-grade pay increases during his first six months on the job, plaintiff was advised on March 23, 1976 that his employment would be terminated on the recommendation of his superior, Captain Edgar. Reporting to the facility commander, Colonel Hanna, Edgar had written that the plaintiff's "conduct and character traits are such that retention in Federal service is not recommended." This evaluation was made pursuant to a regulation requiring that a supervisor submit a recommendation as to further employment after reviewing the performance and conduct of a technician during the first nine or ten months of service.

Within a few days after he was apprised of the suggested discharge, the plaintiff met with Colonel Hanna at least four times to discuss the evaluation. Captain Edgar and plaintiff's employee representative were present at various times and the plaintiff responded to the complaints against him. Nevertheless, on March 25, 1976, Hanna told plaintiff that Edgar's recommendation would be approved, and on March 29, the Adjutant General's office wrote that the discharge would be effective April 30, 1976. The letter gave as reasons for termination "inability to cope with certain responsibilities inherent with your position . . ." and "inability to grasp and maintain basic fundamentals required of your position . . .."

Plaintiff then turned to the district court, alleging that because he had been terminated without cause and had not been given adequate notice or hearing, he was entitled to reinstatement, back pay, and punitive damages. Although the source of the plaintiff's cause of action was somewhat uncertain at first, eventually the district court determined that the claims were within its jurisdiction under the Tucker Act, 28 U.S.C. § 1346(a)(2), and a monetary award could be based upon the Back Pay Act, 5 U.S.C. § 5596(b).*fn2

The district court concluded that the plaintiff had a property right to continued employment under the terms of the Technician Act and could not be terminated without notice and a hearing. After a bench trial, the court found that the written notice afforded the plaintiff had been inadequate since it gave him only "the vaguest idea of the reasons for his discharge" and that the oral reasons given by Hanna and Edgar were indefinite. Without determining whether the various pretermination interviews satisfied the requirement of a hearing, the court decided that lack of adequate written notice constituted a deprivation of due process. The Adjutant General was thereupon directed to reinstate the plaintiff and reimburse him for back pay. The defendant, however, was given leave to institute new termination procedures complying with due process after plaintiff had been reinstated. In due course, plaintiff was reemployed, but was again discharged after new proceedings were completed.

In this appeal, the defendant challenges the order directing reinstatement and awarding back pay. The plaintiff cross-appeals on a number of grounds but essentially from the district court's refusal to preclude the defendant from instituting a new termination proceeding.

The National Guard Technician Act of 1968 was a congressional response to problems stemming from the ambiguous employment status of full-time civilian technicians who serve in National Guard units throughout the country. They perform such essential and varied services as maintenance of equipment and facilities, training, support of aircraft operations, and clerical functions. Although these technicians, previously called caretakers and clerks, had been paid by the federal government, most were required to hold concurrent National Guard membership as a condition of employment, and were considered state employees. Before the Act's passage, no uniform national programs for their retirement and fringe benefits had been established. Moreover, the uncertain legal status of the technicians led to conflicting court decisions in third party accident claims against the government. The Technician Act gave these civilians federal employee status. To clarify supervisory functions, adjutant generals, although state officers, were made responsible for the technicians' employment and termination of service.

Both House and Senate Reports indicate that the technicians were to be treated insofar as possible like other federal employees covered by the civil service legislation, and, where divergence was necessary, specific provisions were drafted. Because of the requirement for maintaining membership in the Guard itself, about 95% Of the technicians were to be accorded noncompetitive federal status while 5%, principally clerk-typists and security guards who were not required to have military status, were to be placed in the competitive civil service classification. See S.Rep.No.1446, 90th Cong., 2d Sess. 5; H.R.Rep.No.1823, 90th Cong., 2d Sess. 6, Reprinted in (1968) U.S.Code Cong. & Admin.News, pp. 3318, 3324.*fn3

The crux of this case is the interpretation to be given the termination segment of the Act, 32 U.S.C. § 709(e), which reads:

"(e) Notwithstanding any other provision of law and under regulations prescribed by the Secretary concerned

(3) a technician may, at any time, be separated from his technician employment for cause by the adjutant general ...

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