Glenn T. Schultz, Plaintiff-appellant, v. Major General Billy G. Wellman, Brigadier General Carlblack, and Lieutenant Colonel John B. Greene,defendants-appellees, 717 F.2d 301 (6th Cir. 1983)

Appellant Schultz appeals from an order of the District Court dismissing his 42 U.S.C. § 1983 cause of action with prejudice. The District Court dismissed the action because it found that the appellees had not acted under the color of state law, Schultz had failed to exhaust his administrative remedies and the prerequisites for injunctive relief could not be shown. We affirm this dismissal but for reasons other than those relied upon by the District Court.

The appellant, Glenn Schultz, served as a sergeant in the Kentucky Air National Guard. He was also employed by the federal government as a civil technician in his National Guard unit. In June, 1981, while attending a training camp, Schultz plead guilty in the North Carolina courts to charges of "knowingly keeping a vehicle which is used for the keeping of a controlled substance."¹  On January 17, 1982, Schultz received notice of discharge from the Kentucky Air National Guard for misconduct, AFR 39-10(2) (c), and unfitness.²  AFR 39-10(3) (a), See also 39-12, 30-19, 30-2.

On April 9, 1982, the Adjutant General of the Kentucky National Guard, appellee Wellman, approved the recommendations of the administrative discharge board,³  that Schultz be dismissed from the Kentucky Air National Guard service with an honorable discharge.⁴  As a result, Schultz was also discharged from his employment as a technician with the Kentucky Air National Guard.⁵  Schultz did not seek administrative remedies from either discharge but instead filed an action in federal district court under 42 U.S.C. § 1983 seeking re-instatement, backpay and declaratory and injunctive relief.⁶ 

At oral argument counsel for Schultz explained that the appellant's real complaint is that the North Carolina misdemeanor of knowingly keeping a vehicle used for storing a controlled substance has no counterpart in the applicable Air Force regulations or the Military Manual for Courts-Martial (MCM). For this reason, Schultz contends, his guilty plea to that charge constitutes neither misconduct nor unfitness under Air Force regulations and his discharge on those bases was improper.

The District Court dismissed Schultz' Sec. 1983 claims for what he described as a lack of federal jurisdiction. The Court ruled that the National Guard officers named in the appellant's suit were acting exclusively under federal authority, pursuant to federal regulations, when they discharged Schultz from National Guard service. The Court reasoned that the appellees could not, therefore, have acted "under color of state law." Since this element of Sec. 1983 was not satisfied, the Court dismissed the claims. The District Court independently dismissed Schultz' requests for declaratory and injunctive relief because it found that Schultz had failed to exhaust his administrative remedies as well as failing to establish the prerequisites for injunctive relief.⁷ 

In dismissing the appellant's Sec. 1983 claims, the District Court apparently reasoned that the appellant's discharge constituted federal action because it was accomplished under authority of an overriding federal statutory scheme. Since the appellees discharged the appellant for offenses defined by federal military law under procedures prescribed by the United States Air Force, the District Court concluded that no state action⁸  existed as a matter of law. In this, the District Court erred.

In United States v. Classic, 313 U.S. 299, 326, 61 S. Ct. 1031, 1043, 85 L. Ed. 1368 (1941) the Supreme Court stated the general definition of action taken "under color of state law:"

Misuse of power, possessed by virtue of state law and made possible only because the wrong doer is clothed with the authority of state law, is action taken "under color of" state law.⁹ 

Subsequent cases have clearly established that this evaluation of whether particular conduct constitutes action taken under the color of state law, must focus on the actual nature and character of that action. See, e.g., Lake Country Estates v. Tahoe Regional Planning Agency, 440 U.S. 391, 399-400, 99 S. Ct. 1171, 1176, 59 L. Ed. 2d 401 (1979); Rowe v. Tennessee, 609 F.2d 259, 263-64 (6th Cir. 1979); Lasher v. Shafer, 460 F.2d 343, 347 (3rd Cir. 1972).

We hold that the appellees' actions in the present case in discharging Schultz from the Kentucky Air National Guard were taken under the color of state law for purposes of Sec. 1983. In Rowe v. Tennessee, 609 F.2d 259, 266 (6th Cir. 1979) this Court held that the actions of National Guard officers which allegedly resulted in the illegal termination of a National Guardsman's employment as a National Guard civil technician could, depending upon the "source and extent" of the authority allegedly abused, constitute actions taken "under the color of state law" and thereby be subject to Sec. 1983 litigation. The plaintiff in Rowe alleged that the defendant Tennessee National Guard officers had maliciously arranged a pretextual "lay-off" from his civil technician post in violation of the plaintiff's rights under the first, fifth and fourteenth amendments as well as the federal Privacy Act. The defendants argued that they were acting under the color of federal not state law by virtue of the overriding scheme of federal authorization for the actions complained of by the plaintiff. The Court reasoned, however, that actions of state administrators of "mixed" federal and state run programs could never constitute state action under Sec. 1983 if the defendant's theory were embraced. Rather, the Court concluded, in accordance with the reasoning of the Supreme Court in Lake Country Estates, such mixed programs require that the actions of the state administrators be scrutinized as to their actual authoritive source and the functional capacity of the actor. Since the decision to "lay-off" a National Guard technician was within the statutory authority of the state (as granted by federal statute) that decision by National Guard administrative officers was held to be one made "under color of state law."¹⁰ 

The reasoning in Rowe is dispositive of this issue in the present case. The appellant Schultz alleges a deprivation of federal rights by virtue of the appellees' exercise of their authority to discharge members of the Kentucky Air National Guard. Federal law directly provides that the authority to discharge enlisted personnel from the National Guard rests with the state. 32 U.S.C.App. Sec. 1101.18(b), National Guard Regulations.¹¹  Officers in the National Guard, such as the appellees here, are officers of the state militia until called into active federal duty. See, e.g., United States v. Dern, 74 F.2d 485, 487 (D.C. Cir. 1934). Discharges from the Kentucky National Guard are ordered by the state Adjutant General, a state officer, and must be approved by the Governor of the state. See Ky.Rev.Stat. Sec. 38.140.

The facts before us present the simple case of state officers exercising their state authority to effectuate the discharge of state militia personnel. Admittedly, the facts in the instant case differ from those in Rowe in that the actions complained of here involve adherence to procedural and substantive rules which were actually promulgated by the Air Force. However, the state has been acknowledged by federal law as the authority by which National Guard personnel are to be discharged. That an agency of the state chooses to utilize federal substantive and procedural rules in the exercise of its state law authority does not transform the state law character of its actions. The state National Guard's decision to utilize substantive and procedural rules initially promulgated by the United States Air Force is of no consequence in this regard, and the rationale of Rowe is clearly dispositive.

B. Failure to State a Claim upon Which Relief May Be Granted

Although the District Court erred in finding that the appellee had not acted under the color of state law, we nevertheless affirm the dismissal of appellant's claims. Accepting the allegations made in the appellant's complaints, briefs and at oral argument as true, e.g., Hunter v. Atckinson, 466 F.2d 490, 461 (6th Cir. 1972),¹²  we find that the appellant failed to state a claim upon which relief may be granted. Fed.Rule of Civ.Proc. 12(b) (6).

The appellant has alleged five violations of his constitutional rights. The first is that appellant's administrative discharge was based on a civilian criminal conviction which did not establish, under Air Force regulations, the misconduct or unfitness grounds relied upon by the appellees. The heart of appellant's argument here is that the North Carolina misdemeanor of knowingly keeping a vehicle used for storing a controlled substance is a "vicarious liability"¹³  offense without equivalent under the military code. This position does not survive careful scrutiny. The appellant presented his arguments that knowingly keeping a vehicle used for storing a controlled substance did not constitute wrongful possession under military law. The administrative board which discharged the appellant necessarily rejected this argument and construed substantive military law of wrongful possession to encompass this North Carolina offense. We decline the appellant's invitation to review or second guess the manifestly reasonable interpretation of military law represented by the decision of the administrative discharge board in this case.¹⁴  See NeSmith, 615 F.2d at 201-203; Mindes v. Seaman, 453 F.2d 197, 201 (5th Cir. 1971). See also Dunlap v. Tennessee, 514 F.2d 130, 133 (6th Cir. 1975) rev'd on other grounds, Tennessee v. Dunlap, 426 U.S. 312 (1976).

The appellant's second claim is that the administrative discharge proceedings denied him the 6th amendment rights to confront witnesses against him and obtain compulsory process. The simple answer to this claim is that there exists no 6th amendment right to confront witnesses or compulsory process which applies to administrative discharge proceedings.¹⁵  Such proceedings are not criminal in nature. The National Guard of Kentucky is free to discharge its enlisted personnel outside the constraints of 6th amendment protections.¹⁶ 

The third claim made by the appellant is that he was denied the opportunity to "contest" a supposedly illegal search and seizure which occurred during his state arrest. Any claim he may have had in this regard was foreclosed by his knowing and intelligent plea of guilty before the North Carolina courts. Tollett v. Henderson, 411 U.S. 258, 93 S. Ct. 1602, 36 L. Ed. 2d 235 (1973); McMann v. Richardson, 397 U.S. 759, 90 S. Ct. 1441, 25 L. Ed. 2d 763 (1970).

The appellant's fourth claim is that hearsay was admitted against him in violation of Air Force regulations. While Air Force regulations allow the use of hearsay evidence in administrative discharge proceedings, there are some restrictions. AFR 11-31, 3(a) (4) provides that an appellee may be allowed to confront the declarant upon request. If the declarant is unavailable because of a lack of subpoena power or because attendance would be "unreasonable," the appellee is given an opportunity to obtain a deposition of the declarant or, if not reasonably obtainable, a sworn statement for submission to the board. However, a defendant's "failure to exercise the foregoing opportunities or his or her inability to do so does not affect the admissibility of hearsay evidence. If the deposition or sworn statement has not been produced, despite the good faith efforts of the [defendant], the legal advisor advises the board that such a good faith effort has been undertaken and states the reasons that the deposition or sworn statement cannot be produced." The appellant here has failed to identify what hearsay was admitted at his administrative discharge proceeding or allege that the above procedures were not followed. It is difficult to conceive of any relevant hearsay evidence that could have affected the outcome of such proceedings. The appellees here needed only to establish that the appellant had been convicted of a civilian offense the penalty for which under military law would have exceeded one year's confinement. The appellant does not claim that his conviction was invalid but rather relies on the legal theory that military law does not recognize such an offense. Accepting the allegation that hearsay evidence was improperly admitted, we nevertheless can conceive of no set of facts--and the appellant suggests none--which would entitle him to relief in light of the undisputed validity of his state court conviction and the defendants' reasonable judgment that such a conviction constituted misconduct and unfitness under Air Force regulations.

The appellant's final claim is that the appellees had insufficient evidence to meet their burden by the required preponderance. This assertion is frivolous in view of the appellant's knowing and intelligent guilty plea to the North Carolina possessory offense.

Because we find that under the circumstances of this case the appellant could not prove any set of facts in support of his claims which would entitle him to the relief requested, we affirm the District Court's judgment dismissing the appellant's complaint.