APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF DELAWARE.
Biggs, Gibbons and Rosenn, Circuit Judges.
The plaintiff-appellant Chaudoin was employed by the Delaware National Guard as a civilian administrative supply technician. The employment of civilian technicians was authorized by the National Guard Technicians Act of 1968, 32 U.S.C. § 709.*fn1 He was dismissed from his position by Adjutant General Atkinson, effective February 22, 1971. He sought review of this dismissal in the United States District Court for the District of Delaware. A motion for summary judgment was filed by General Atkinson and the district court granted it.*fn2
The facts are somewhat complicated but are not in dispute.*fn3 Chaudoin's duties are set out in a detailed job description, a copy of which is attached hereto as an appendix. He was also a member of the Delaware National Guard. On the afternoon of January 19, 1971, Captain Miklasiewicz, who was Chaudoin's immediate supervisor, was directed to assign a detail of three men to participate in a firing squad for a military funeral on Thursday, January 21, 1971. At about 9:00 A.M. on January 20th, Captain Miklasiewicz called Chaudoin and ordered him to participate in the detail. Chaudoin replied that he would go, but about 12:45 P.M. on January 20th, Chaudoin called Captain Miklasiewicz and left a message saying, in substance, that he had reconsidered and would not serve on the burial detail because military funeral duty was unrelated to his job and not contained in his job description. At 3:30 P.M. on that same day, Captain Miklasiewicz called Chaudoin back and Chaudoin told him he had examined his job description and felt firing squad duty was well beyond its scope and therefore he would not have to participate as a member of the firing squad. Captain Miklasiewicz had not before ordered anyone to a firing squad and he testified that he regarded this order as "not a normal duty".
After talking to Chaudoin, Captain Miklasiewicz called his supervisor, Colonel Johnson, who requested him to replace Chaudoin in the detail. Chaudoin's replacement, Evans, had also refused at first to perform the firing squad duty for the same reason given by Chaudoin, but apparently changed his mind when Captain Miklasiewicz indicated he might be dismissed if he did not perform the duty.
Chaudoin, however, reported for duty on the morning of January 21. He was in uniform and ready to perform his duties as a member of the firing squad. At that time, Captain Miklasiewicz had a meeting with the group of men comprising the firing squad, including Chaudoin. Chaudoin advised Captain Miklasiewicz that he had decided to file a grievance rather than refuse to perform the firing squad duty if the order were put in writing so there would be written documentation upon which to base a grievance. Captain Miklasiewicz was willing to put the order in writing and indicated he would speak with Colonel Johnson. When he did so, Colonel Johnson instructed him that Chaudoin had been replaced and should not be permitted to participate in the detail. After this incident, Captain Miklasiewicz wrote a report to the Adjutant General and recommended that Chaudoin be given an official written reprimand and be placed on three days' leave without pay for insubordination. Colonel Johnson acquiesced in the recommendation, differing only in that he felt the punishment should be designated a "minimum" rather than a "maximum." Nonetheless on January 22, 1971, Adjutant General Atkinson notified Chaudoin that his employment was being terminated as a result of his "failure to obey a lawful order to report for duty as a member of a Firing Squad at a military funeral."
It was suggested that Chaudoin talk to Adjutant General Atkinson in person and he did so, hand-carrying a two and one-half page explanation of the incident. At the meeting, General Atkinson, according to Chaudoin's testimony, told Chaudoin that he did not need people like him in the National Guard and that he was a disgrace to the Army. Subsequently Atkinson confirmed Chaudoin's dismissal and Chaudoin requested a hearing as provided by the National Guard Regulations. A Technician Hearing Committee was convened and made its recommendation to Adjutant General Atkinson.*fn4 The committee found the General's order was lawful but also agreed that the penalty of dismissal was excessive and ignored "the principle of like penalties for like offenses". See para. 7-37 of National Guard Regulation No. 51, "Like penalties for like offenses." The committee decided that Chaudoin "was treated with undue severity" and recommended that he be restored to the position he held prior to the action of the Adjutant General and "receive retroactive status and other accumulated credits to the effective date of his removal; except that the retroactive pay and credits would not include the pay for three days as recommended by his immediate supervisor."
Following this extensive hearing, General Atkinson ignored the recommendation of the committee and without specifying any reason affirmed his original decision to terminate Chaudoin's employment. The complaint requests that the court order Chaudoin's reinstatement, and that he be awarded compensation and damages in the amount of $25,000, attorney fees, interest and costs.
A. Chaudoin asserts that jurisdiction is conferred upon the district court by 28 U.S.C. § 1331, 5 U.S.C. § 702 et seq., and 28 U.S.C. § 1361. We consider these assertions seriatim.
As we have said, 32 U.S.C. § 709 is statutory authority for the hiring of civilian technicians such as Chaudoin for the National Guard. See note 1, supra. Under this provision a technician is deemed to be a federal employee and the adjutant general is charged ...