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April 27, 1988

James Egloff and Susan Egloff, Plaintiff
New Jersey Air National Guard, et al., Defendant

The opinion of the court was delivered by: GERRY


 Two former members of the New Jersey Air National Guard ("Air National Guard" or "Guard"), Susan and James Egloff, brought this action under 42 U.S.C. §§ 1983, 1985 and 1986, the First, Fifth, Sixth and Fourteenth Amendments to the United States Constitution, and various state law theories, against the Air National Guard and several of plaintiffs' former supervisors in that organization.

 In 1985, plaintiffs James and Susan Egloff both held the rank of staff sergeant in the Guard and were employed as civilian technicians by the State of New Jersey Department of Defense. In June of that year while on annual training exercises at Alpena, Michigan, plaintiffs contend that they were impermissibly ordered to undergo urine testing. They refused this order, and administrative discharge proceedings commenced against them for this refusal. For reasons not immediately relevant here, plaintiffs were not administratively discharged; rather, their enlistments were allowed to expire normally, and the Guard decided not to allow them to re-enlist.

 The procedural history of this case is extremely long and extremely convoluted. Originally, in addition to their actions for damages, plaintiffs sought to enjoin the then pending administrative discharge of James Egloff, and sought re-enlistment for Susan Egloff, whose enlistment term had already expired. It is sufficient for our purposes here to note only that this court on February 6, 1987, dismissed all aspects of plaintiffs' complaint, save three. First, although not explicitly raised by plaintiffs, we found that the issue of whether defendants' order for a urinalysis violated plaintiffs' rights under the Fourth Amendment to the Constitution compelled our sua sponte consideration. We therefore ordered supplemental briefing on this point. Second, we preserved plaintiffs' related Fifth Amendment challenge to the testing. Finally, while we dismissed, on immunity grounds, plaintiffs' damage claims brought pursuant to federal law -- i.e., 42 U.S.C. §§ 1983, 1985, and 1986, and plaintiffs' state law damage claims brought against the Guard and the individual defendants in their official capacities, we requested additional submissions on the issue of whether the individual defendants were also immune from the pendant state law claims brought against them in their individual capacities. With the benefit of the additional briefing ordered by the court, we now are prepared to rule on defendants' motion to dismiss the remaining aspects of plaintiffs' state law claim; and on defendants' motion for summary judgment with respect to plaintiffs Fourth and Fifth Amendment challenges. In addition, plaintiffs have moved for reconsideration of their previously dismissed claims.


 The facts giving rise to this action rival its procedural history in both complexity and confusion. Proper consideration of the remaining aspects of this case, however, requires the court to attempt a somewhat detailed treatment of the factual background. As this is a motion by defendants to dismiss and for summary judgment, this background must be presented in the light most favorable to the plaintiffs.

 In June 1985, plaintiffs James and Susan Egloff were members of the Air National Guard's 177th Fighter Interceptor Group, performing two weeks of active duty at the Alpena Air National Facility pursuant to 32 U.S.C. § 503(a). *fn1" During this period, the Group's security section conducted an investigation of a break-in at the Group's Atlantic City Airport headquarters. This investigation uncovered allegations of drug use by several members of the Guard. Two of these alleged drug users, Robert Hare and Dale Bowser, were interrogated. They admitted their involvement with drugs, and implicated the Egloffs as fellow drug users.

 The security section relayed this information to the Group Commander, Col. Richard C. Cosgrave, and to the Base Commander, Lt. Col. Richard Serfass. They apparently decided to conduct urine testing upon all individuals who had admitted drug use or who had been implicated as drug users. Approximately seventeen individuals (including the plaintiffs) were slated for testing.

 On the morning of June 10, 1985 plaintiffs were interrogated by members of the Base Security Police. Although they were informed of their rights under the Fifth Amendment and the Uniform Code of Military Justice, plaintiffs were not told of the substance of the charges levelled against them. Later that day, plaintiff James Egloff received an oral order from defendant Serfass to report to the base clinic to undergo a urinalysis. Defendant Serfass did not tell the plaintiff why the test was requested; indeed, according to the plaintiff, Serfass said that his name had been selected "randomly by a computer and had nothing to do with the Security Police interrogation." Plaintiffs' Motion for Reconsideration, para. 41. Defendant Larry J. Dalton, a Major in the Guard, explained the proposed procedure to the plaintiffs and assured them that James' testing would be performed along with a group of other individuals, that they would be provided sealed and individually-identified specimen bottles, and that the samples would be placed "under strict control". Id. at P 42. James Egloff assented to this procedure, on condition that he could also have a second test of his sample conducted by a civilian hospital lab. Defendant Serfass allegedly agreed to this request. Plaintiffs' Complaint at para. 26.

 According to plaintiffs, that night they decided they would not submit to the urine testing. Consequently, on June 4, 1985, James Egloff refused a second, written order to repair to the clinic for the urine testing, and Susan Egloff declined to follow a similar demand made of her.

 Proceedings for administrative discharge against both plaintiffs then commenced. After several postponements, plaintiff Susan Egloff's Administrative Hearing on her discharge was held on March 14, 1986. Before final action could be taken, however, her term of enlistment expired, and she was informed that, due to her refusal to obey orders and submit to the urinalysis, she would not be permitted to re-enlist. Consequently, Susan Egloff became ineligible for continued employment as a civilian technician. In addition, although classified as "honorable", her discharge was apparently coded to indicate that her separation from service had been "not voluntary".

 On October 23, 1986, with James Egloff's administrative discharge hearing still pending, plaintiffs commenced this action. Subsequently, James Egloff's administrative proceedings followed a similar course as his wife's -- he was not administratively discharged, but rather was refused re-enlistment when his term of service expired. As in Susan Egloff's case, this refusal occasioned a loss of James Egloff's civilian technician job and an "involuntary" honorable discharge.


 Presently before us is plaintiffs' Motion for Reconsideration of this court's February 6, 1987 Bench Opinion and Order, in which we, inter alia, dismissed most of plaintiffs' state and federal damage claims against the Guard and the individual defendants, and plaintiff Susan Egloff's claim that the Guards' refusal to re-enlist her violated her due process rights. We also must consider defendants' motion for summary judgment as to the ...

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