Jorden, Jr., Ulus, Appellant, v. National Guard Bureau, Departments of the Army and the Airforce, Temple, Herbert R., Jr., Major General (pa), Theadjutant General, Commonwealth of Pennsylvania; Campbell,john D., Individually and As Colonel, Pennsylvania Airnational Guard Base Detachment Commander; and Frisby, Henryc., Individually and As Major, Pennsylvania Air Nationalguard Chief, Administration, 877 F.2d 245 (3d Cir. 1989)

The plaintiff, Ulus Jorden, Jr., appeals from the district court's order of summary judgment of October 25, 1988, in favor of the defendants on his First Amendment claim, arising from the termination of his employment with and discharge from the Pennsylvania Air National Guard [PaANG], and from the district court's order of October 19, 1988, denying his motion for entry of default judgments against the defendants. We will reverse the order for summary judgment, affirm the order denying default judgments, and remand for further proceedings.

The case has a long and somewhat involved history. Jorden was employed as a civilian technician with the PaANG from April or May, 1956, two years after his enlistment in the PaANG on April 6, 1954, until November 9, 1984, when he was discharged with the rank of master sergeant.¹  As a civilian technician Jorden was, at the time of his termination, a federal employee under the National Guard Technicians Act of 1968. See 32 U.S.C. § 709(d). This act requires that such technicians be military members of the National Guard of the United States.²  See 32 U.S.C. § 709(b). Thus, the Adjutant General of the PaANG must terminate the civilian employment of anyone separated from the National Guard.³  See 32 U.S.C. § 709(e) (1).

The PaANG, along with all state air national guard entities, must be federally recognized, a status that requires that its members meet federal standards prescribed for their particular grades. See 10 U.S.C. § 8077; 32 U.S.C. §§ 101(6) (D), 301. Among its other duties, the National Guard Bureau, a joint bureau of the Department of the Army and the Air Force, see 10 U.S.C. § 3040, grants and withdraws such recognition. See Jorden v. National Guard Bureau, 799 F.2d 99, 101 (3d Cir. 1986), cert. denied, --- U.S. ----, 108 S. Ct. 66, 98 L. Ed. 2d 30 (1987). Upon federal recognition, members of state air national guard units become members of the Air National Guard of the United States, a federal military service. See 10 U.S.C. §§ 8261(a), 8351(a).

On November 19, 1983, putatively as a result of his conduct, which included protests alleging improper acts by his superior officers,⁴  Jorden was ordered to undergo a psychiatric examination, based upon which the psychiatrist concluded that he was "quite impaired from a psychiatric standpoint," and therefore unsuitable for retention in service. As a result, further evaluation was indicated, but Jorden refused three times to obey orders to report for inpatient medical evaluation, denominated as "special training." Accordingly, Jorden was honorably discharged as not medically qualified for worldwide duty or retention in the PaANG under applicable regulations on October 3, 1984. His technician status with the PaANG was then terminated on November 9, 1984.

In an application of January 27, 1985, and an amended application of May 15, 1985,⁵  Jorden requested relief from the Air Force Board for the Correction of Military Records (AFBCMR) [Board].⁶  In particular, he asked that his discharge be voided and that he be reinstated in the PaANG. In his application, Jorden asserted that the orders requiring him to report for medical evaluation were not in compliance with national guard regulations, and were issued in retaliation for his attempts to protest official misconduct. After considering Jorden's application at a meeting on September 24, 1986,⁷  the Board denied him relief and so advised him in a letter of November 7, 1986. Jorden has never instituted any action to set aside the Board's decision.

Jorden did, however, on February 7, 1985, long before the Board acted, file a complaint, which he later amended, in the district court. The defendants in the amended complaint were the National Guard Bureau and Major General Emmett H. Walker, Jr., its chief, who were federal defendants, and Major General Richard M. Scott, the Pennsylvania Adjutant General, and Colonel John D. Campbell and Major Henry Frisby, PaANG officers, who were state defendants. However, during the course of these proceedings, Lt. General Herbert R. Temple, Jr., and Major General Sajer replaced Walker and Scott in office and have, respectively, been substituted for them as defendants.⁸ 

Jorden alleged that he had been unlawfully discharged from his employment as a civilian technician with the PaANG in retaliation for exercising his First Amendment rights; that his discharge was as the result of racial discrimination; that acts and practices of the defendants violated his Fourteenth Amendment rights and as well as his rights under 42 U.S.C. §§ 1983, 1985(3) and 1986; and that statements made by the state defendants gave rise to a cause of action for defamation under Pennsylvania law, over which he requested the district court to exercise pendent jurisdiction. Jorden sought declaratory and injunctive relief, including reinstatement, and back pay, as well as compensatory and punitive damages, and attorney's fees and costs.⁹  The defendants, without answering, moved to dismiss and, on September 24, 1985, the district court granted their motions under Fed. R. Civ. P. 12(b) (1) and (6), finding Jorden's federal claims barred under Chappell v. Wallace, 462 U.S. 296, 103 S. Ct. 2362, 76 L. Ed. 2d 586 (1983). The court also dismissed the state common law claim, declining to exercise pendent jurisdiction over it.

Jorden then appealed, and on August 27, 1986, we affirmed the dismissal of the damages claims under the authority of Chappell, as well as all claims against the National Guard Bureau. However, we reversed the district court's dismissal of his claim for injunctive relief ordering his reinstatement in the PaANG and remanded the case to the district court for further proceedings.¹⁰  See Jorden v. National Guard Bureau, 799 F.2d at 111. The district court received our mandate on November 3, 1986, and no action was taken by the defendants, who had not yet filed answers to Jorden's amended complaint, to seek a stay of the judgment.¹¹  On October 5, 1987, the Supreme Court denied the state defendants' petition for a writ of certiorari. --- U.S. ----, 108 S. Ct. 66, 98 L. Ed. 2d 30 (1987).

While the defendants' motions to dismiss extended the time for them to file answers, see Fed. R. Civ. P. 12(a), they did not promptly do so after the case was remanded, and thus Jorden filed a motion for default judgments on January 19, 1988. The state defendants and Temple filed motions for leave to file answers out of time, on February 3 and February 12, 1988, respectively. Temple filed his answer on February 2, 1988, and again on November 4, 1988.¹²  The state defendants filed their answer on February 3, 1988. Jorden filed a motion to strike Temple's answer on February 4, 1988. Temple filed a motion for summary judgment on April 25, 1988 and on June 20, 1988, the state defendants joined in this motion.

By its order of October 19, 1988, the district court denied Jorden's motion for default judgment and motion to strike Temple's answer, and granted all the defendants' motions to file answers out of time. By its order of October 25, 1988, the district court granted the defendants' motions for summary judgment with respect to Jorden's First Amendment claim and denied them with respect to Jorden's racial discrimination claim, granted the parties a ninety-day discovery period, and set a March 20, 1989, trial date.

On December 8, 1988, by agreement with the defendants pursuant to Fed. R. Civ. P. 41(a) (1) (ii), Jorden voluntarily filed a stipulation of dismissal, with prejudice, of all his claims not dismissed by the district court's October 25, 1988, order, thus permitting an immediate appeal from the summary judgment in favor of the defendants on his First Amendment claim.¹³  On December 19, 1988, Jorden filed his notice of appeal of the district court's orders of October 19 and 25, 1988, which denied his motion for entry of default judgments, permitted the defendants to answer, and granted them partial summary judgment.

On Jorden's first appeal we remanded the matter and indicated that if he could demonstrate that his discharge violated his constitutional rights he would be entitled to reinstatement. 799 F.2d at 111. In considering the merits of Jorden's First Amendment claim on remand, the district court, although recognizing that "this is not a case in which I am asked to review a decision of the [Board]," nevertheless stated that since Jorden's " [First Amendment] allegation [in his civil complaint] is the same as the allegations he made before the [Board]¹⁴ .... I am required to review the Board's findings under the abuse of discretion standard stated in Dougherty [v. United States Navy Bd. for Correction of Naval Records], 784 F.2d [499,] at 501 [(3d Cir. 1986) ]."¹⁵  Jorden v. Sajer, No. 85-670, slip op. at 8-9, 1988 WL 113365 (E.D. Pa. Oct. 25, 1988).¹⁶ 

After "reviewing the record before the [Board]," the district court concluded that

[the] Board's determination is supported by substantial evidence and that this is not the type of case in which I should set aside the Board's decision. The Board determined that the order by which the plaintiff was commanded to undergo further medical evaluation was proper. Since the plaintiff failed to comply with this order, he was properly found to be not medically qualified for world wide duty or retention. Moreover, the Board found that the plaintiff's allegation of fraud and waste were investigated and found to be unsupported. Finally, the Board decided that the plaintiff was not discharged in retaliation for his complaints and reports or wrongdoing. These findings are clearly supported by evidence of record. In fact, the record suggests that the plaintiff had difficulty accepting supervision and following procedure which lead to concern over his ability to perform in the Air National Guard. Accordingly, I will affirm the [Board's] findings with respect to the plaintiff's retaliation claims and grant the defendant's motion for summary judgment on the plaintiff's first amendment claims.

Slip op. at 9-10.

The difficulty with the district court's approach is that the court could not affirm or set aside the decision of the Board, which had not been directly challenged by Jorden and thus was not before the court for review. Thus, this action is simply not a Dougherty--type review proceeding. In fact, the district court action was commenced at almost the same time that Jorden submitted his application to the Board. Indeed, the district court at first seemed to recognize that Jorden's case was independent of the Board proceeding, but then went on to consider the matter as if it were reviewing the decision of the Board.¹⁷  Thus, the issue the district court should have addressed was not whether the Board's decision should be upheld, but rather whether the court should have given it preclusive effect.¹⁸  We will accordingly make that determination.

It is well-settled that " [o]rdinarily res judicata and collateral estoppel may be invoked when 'an administrative agency is acting in a judicial capacity and resolves disputed issues of fact properly before it which the parties have had an adequate opportunity to litigate.' " Rosenfeld v. Department of the Army, 769 F.2d 237, 240 (4th Cir. 1985) (quoting United States v. Utah Constr. & Mining Co., 384 U.S. 394, 422, 86 S. Ct. 1545, 1560, 16 L. Ed. 2d 642 (1966)). See Facchiano v. United States Dep't of Labor, 859 F.2d 1163, 1167 (3d Cir. 1988), cert. denied, --- U.S. ----, 109 S. Ct. 2447, 104 L. Ed. 2d 1002 (1989); Stillians v. State of Iowa, 843 F.2d 276, 281 n. 3 (8th Cir. 1988); Purter v. Heckler, 771 F.2d 682, 691 (3d Cir. 1985); Restatement (Second) of Judgments Sec. 83 and comment b (1982).¹⁹  However, "the judicially created doctrine of collateral estoppel does not apply when the party against whom the earlier decision is asserted did not have a 'full and fair opportunity' to litigate the claim or issue." Kremer v. Chemical Constr. Corp., 456 U.S. 461, 481-82, 102 S. Ct. 1883, 1897, 72 L. Ed. 2d 262 (1982). Thus, " ' [r]edetermination of issues is warranted if there is reason to doubt the quality, extensiveness, or fairness of procedures followed in prior litigation.' " Id., 456 U.S. at 481, 102 S. Ct. at 1897 (quoting Montana v. United States, 440 U.S. 147, 164 n. 11, 99 S. Ct. 970, 979 n. 11, 59 L. Ed. 2d 210 (1979)). See also Fowler v. Califano, 596 F.2d 600, 603 (3d Cir. 1979); City of Pompano Beach v. FAA, 774 F.2d 1529, 1538-39 n. 10 (11th Cir. 1985). Furthermore, it is particularly important for a party to be able "to present live witness testimony in a proceeding that necessarily turns largely on retaliatory motivation, and thus demands that the decision-maker weigh witness credibility." Nasem v. Brown, 595 F.2d 801, 807 (D.C. Cir. 1979) (citation omitted).

Here, it is clear that the Board's proceedings completely lacked the attributes necessary to accord preclusive effect to its decision.²⁰  In fact, the Board's proceedings were more investigative than judicial. When Jorden's application for correction of his records was received by the Air National Guard, it was referred to PaANG for review and for additional information. PaANG replied, explaining why Jorden was discharged and its explanation was accepted by the reviewing officer who recommended on August 16, 1985, that Jorden's application be denied. This recommended report was sent to Jorden by letter of September 13, 1985, for his review and comments and he took that opportunity to file what he called a "rebuttal" dated September 30, 1985 to the review.

The Board then considered Jorden's application at a meeting on September 24, 1986, solely on the written record and determined that "insufficient relevant evidence has been presented to demonstrate the existence of probable error or injustice." It indicated that his complaints had been thoroughly investigated and there was no evidence to support his allegation that he had been the victim of retaliation. Thus, it concluded that there was "no basis upon which to recommend favorable action on the applicant's requests." It then indicated that Jorden's "case is adequately documented and it has not been shown that a personal appearance with or without counsel will materially add to our understanding of the issue(s) involved. Therefore, the request for a Formal Hearing is not favorably considered." Accordingly the Board upheld Jorden's termination.²¹ 

We do not imply that the Board did not conscientiously review the matter, that it violated any procedural rules, or that the record does not support its result. Nevertheless, even acknowledging all that, the procedures followed by the Board do not remotely resemble the type of proceedings which can be given preclusive effect in a district court for the case does, at least at this time, involve disputed issues of fact regarding the reasons for Jorden's discharge. Cf. Ness v. Marshall, 660 F.2d 517, 519 (3d Cir. 1981) (on summary judgment motion where intent is a substantive element of the cause of action the principle is particularly apt that a court should not draw factual inferences in favor of the moving party and should not resolve genuine issues of credibility.) Inasmuch as the only possible basis for the summary judgment was the preclusive effect of the Board's decision, and the defendants do not suggest, as indeed they hardly could at this time, that even without it there are no genuine issues of material fact as to why Jorden was discharged, the order for summary judgment must be reversed. See Metzger by and through Metzger v. Osbeck, 841 F.2d 518, 519 (3d Cir. 1988).²² 

The remaining issue is whether the district court properly denied Jorden's motion for default judgments, a decision we review under an abuse of discretion standard. See Scarborough v. Eubanks, 747 F.2d 871, 875 (3d Cir. 1984); Hritz v. Woma, 732 F.2d 1178, 1180-81 (3d Cir. 1984). We see no error in this ruling. First of all, we point out that "we have repeatedly stated our preference that cases be disposed of on the merits whenever practicable." Hritz, 732 F.2d at 1180-81. See Feliciano v. Reliant Tooling Co., 691 F.2d 653, 656 (3d Cir. 1982).²³  Second, the defendants' neglect at most merely delayed Jorden in realizing satisfaction of his claim. Feliciano, 691 F.2d at 656-57. Third, there is no doubt that the defendants have evidence which, if accepted, will constitute a complete defense to the case. Hritz, 732 F.2d at 1181. Finally, there is nothing in the record indicating that the defendants' conduct went beyond mere negligence, rising to the level of "flagrant bad faith" or "contumacious behavior." See Emcasco Insur. Co. v. Sambrick, 834 F.2d 71, 75 (3d Cir. 1987); Scarborough, 747 F.2d at 875.

For the foregoing reasons we will vacate that portion of the district court's October 25, 1988, order awarding summary judgment to the defendants on Jorden's First Amendment claim, and remand the matter to the district court for proceedings consistent with this opinion. Of course, if Jorden is successful on the remand his remedies will be limited to those allowed under our first opinion. See 799 F.2d at 111 n. 17. We will affirm the district court's order of October 19, 1988, which denied Jorden's motion for default judgments against the defendants, granted the defendants' motions for leave to file answers out of time, and denied Jorden's motion to strike Temple's answer. The parties will bear their own costs on the appeal.