When the plaintiffs arrived at the base clinic, however, the clinic supervisor informed James Egloff that his name didn't appear on the list to be tested. The supervisor further claimed ignorance of any request for a second test at a civilian lab. He allegedly handed James an open, 8-10 ounce unlabelled brown-colored bottle and told plaintiff to "go fill it up". Plaintiffs' complaint at para. 27. James protested that he was unable to provide the requested amount. The supervisor then told plaintiff to return the next day.
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 constitutionality of the proposed urine testing, and defendants' motion to dismiss plaintiffs remaining state law actions.
We turn first to plaintiffs Motion for Reconsideration. In our previous Bench Opinion, we held that plaintiffs' federal and state damage claims directed against the Air National Guard, and against the individually named defendants in their official capacities, were barred by the Eleventh Amendment. We further found that the federal damage claims brought against the defendants in their individual capacities could not proceed. We made this determination on the strength of the United States Third Circuit Court of Appeals decision in Jorden v. National Guard Bureau, 799 F.2d 99 (3d Cir. 1986) cert. denied 484 U.S. 815, 108 S. Ct. 66, 98 L. Ed. 2d 30 (1987). The Jorden court, applying the doctrine of federal immunity from torts arising out of or incident to military service developed by the Supreme Court in Chappell v. Wallace, 462 U.S. 296, 76 L. Ed. 2d 586, 103 S. Ct. 2362 (1983) and Feres v. United States, 340 U.S. 135, 95 L. Ed. 152, 71 S. Ct. 153 (1950), held that the Pennsylvania Air National Guard was immune from suit brought by a Guardsman under 42 U.S.C. §§ 1983, 1985 and 1986.
Finally, we ruled that plaintiff Susan Egloff had no due process right regarding her denial of re-enlistment in the Guard, because there exists no property interest in continued enlistment in military service. Penagaricano v. Llenza, 747 F.2d 55, 62 (1st Cir. 1984).
Plaintiffs, proceeding now pro se, have filed an 82 page "Motion for Reconsideration". Most of this is taken up with an admirably detailed account of the facts, which has aided this court greatly in its consideration of claims yet outstanding. As to the dismissed aspects of their action, however, plaintiffs have failed to provide the court with any pertinent case law or fact which this court may have overlooked. The cases they cite in the field of Eleventh Amendment immunity, for the most part, predate by years or decades the Supreme Court's seminal decision in Edelman v. Jordan, 415 U.S. 651, 39 L. Ed. 2d 662, 94 S. Ct. 1347 (1974) which held that an action for damages against a state, even when the state is not the named party, is barred by the doctrine of sovereign immunity encompassed in the Eleventh Amendment. Further, plaintiffs provide us with no theory with which to distinguish our Circuit's decision in Jorden v. National Guard Bureau, nor with any reason for finding plaintiff Susan Egloff's claim for re-enlistment somehow implicates a property interest to which the due process protections of the Fourteenth Amendment might apply.
Accordingly, we must deny plaintiffs' motion for reconsideration.
In our February 6, 1987 Opinion, we noted that while plaintiffs have no protected property interest in re-enlistment, and therefore no procedural due process claim under the Fourteenth Amendment, "the Constitution does impose some limits on the exercise by a commanding officer of his discretion with respect to re-enlistment of personnel." Bench Op. at 19. Consequently, if plaintiffs could demonstrate that the order they disobeyed (which in turn cost them their re-enlistment) was itself violative of some constitutional guarantee, then plaintiffs could proceed with their action for reinstatement.
We further suggested that plaintiffs might be able to make such a showing under the Fourth or Fifth Amendments to the Constitution. Id. at 20. Subsequently, and by direction of the Court, the parties have framed these issues in the context of additional submissions to defendants' continued motion for summary judgment on the constitutionality of the urinalysis. We now proceed to an examination of these issues.
The Constitutionality of the Urinalysis Under the Fourth Amendment
The Fourth Amendment to the United States Constitution states, in part:
The right of the people to be secure in their persons, houses, papers and effects, against unreasonable searches and seizures, shall not be violated . . . .