Johnson v. Orr

780 F.2d 386, 121 L.R.R.M. (BNA) 2487

• Court: Court of Appeals for the Third Circuit
• Decided: January 13, 1986
• Docket: Nos. 84-5859, 84-5860
• Status: Published

Opinions

OPINION OF THE COURT

BECKER, Circuit Judge.

The issue before us, on a certified question from the district court, 28 U.S.C. § 1292(b) (1982), is whether Air National Guard (“ANG”) technician supervisory personnel and the New Jersey Adjutant General act under color of state law for the purposes of 42 U.S.C. § 1983 (1982) when participating in personnel decisions resulting in the dismissal of ANG technicians. The district court held that they do, and we affirm.

I.

Appellees Roy A. Johnson and John J. Sheller were ANG technicians and stewards in the technicians’ union, Local 377 of the American Federation of Government Employees. As a result of a series of events arising out of a dispute over a proposed change in the technicians’ work hours, appellees were discharged. The discharges were upheld in administrative hearings before an ANG hearing examiner, whose findings were adopted by the New Jersey Adjutant General.

On August 6,1982 appellees brought this action in the district court for the District of New Jersey against their supervisors John Murphy and Charles Young; Secretary of the Air Force Verne Orr; Major General Wilfred Menard, who was New Jersey Adjutant at the time of appellees discharge; and Major General Francis Gerard, who succeeded Menard as New Jersey Adjutant General. Appellees’ complaint alleged improper discharge in violation of their first and fifth amendment rights (Bivens claims)¹; improper discharge in violation of the Administrative Procedure Act (APA), 5 U.S.C. § 701 et seq. (1982); and violation of 42 U.S.C. § 1983 on account of due process and various first and fifth amendment infractions. An amended complaint was filed in January, 1984, adding as a defendant Billy McDaniel, a technician personnel officer who had advised the other defendants concerning the discharge of plaintiffs.²

Following a hearing in March, 1983, the district court transferred all damage claims to the United States Claims Court pursuant to 28 U.S.C. § 1406(c) (1982) and dismissed the Bivens claims. Both sides moved for summary judgment with respect to the remaining claims. In July, 1984 the district court granted summary judgment for plaintiffs on their APA claims and summary judgment for defendants with respect to the due process claim. The district court denied summary judgment with respect to the other claims brought under section 1983, specifically rejecting defendants’ argument that a section 1983 action could not be brought against National Guard supervisory personnel. On a motion for partial reconsideration, the district court agreed to certify for interlocutory appeal the question whether persons such as Murphy, Young, McDaniel, and Menard, who discharge technicians employed under 32 U.S.C. § 709, act under the color of state law for section 1983 purposes. This court accepted the certification and defendants appealed.³

II.

The question whether appellants acted under color of state law is difficult because of the National Guard’s unusual “hybrid” status as an agency with both federal and state characteristics. In New Jersey Air Nat’l Guard v. Fed. Labor Rel. Auth., 677 F.2d 276 (3d Cir.1982), we described this status as follows:

The National Guard occupies a unique position in the federal structure ... This role does not fit neatly within the scope of either state or national concerns; historically the guard has been, and today remains, something of a hybrid. Within each state the National Guard is a state agency, under state authority and control. At the same time, the activity, makeup, and function of the Guard is provided for, to a large extent, by federal law.

Id. at 278-79. Indeed, the Guard’s function, as well as its structure, is hybrid. The Guard “serves the state in time of civil emergencies within the state as well as being available for federal service during national emergencies.” Engblom v. Carey, 522 F.Supp. 57, 65 (S.D.N.Y.1981).

Appellants focus on the federal statutory scheme that governs ANG, 32 U.S.C. § 709 (1982). They point out first that the 1968 National Guard Technicians Act makes them (with the exception of Adjutant General Menard, a state cabinet officer appointed by the governor) federal employees.^{3 4} Appellants further emphasize that their authority to discharge appellees derives directly and exclusively from federal statute and that such discharges are effected pursuant to regulations prescribed by the Secretary of the Air Force, 32 U.S.C. 709(e).⁵ They contend that New Jersey Air National Guard Regulations 40-13 (NJANG) does not constitute state law for section 1983 purposes because it simply restates the relevant federal regulations: NJANG’s stated purpose is to “provide for the administration of the NJ Army and Air National Guard Technician Program and implement the provisions of the National Guard Bureau Technician Personnel Manual, Technician Personnel Pamphlets and applicable regulations of the U.S. Civil Service Commission’s Federal Personnel manual.” (emphasis added) Appellants argue that they could not possibly have acted under the color of state law, for there is no state law directing or authorizing their actions.

Appellants also argue that the Supreme Court’s holding in Bush v. Lucas, 462 U.S. 367, 103 S.Ct. 2404, 76 L.Ed.2d 648 (1983), that congressional enactment of a comprehensive civil service scheme precluded an implied Bivens-type cause of action, should be extended to section 1983 actions. Because ANG. operates pursuant to a comprehensive legislative scheme, appellants argue, a section 1983 remedy is inappropriate.⁶

Appellees rejoin that the state is so heavily involved in the National Guard program that the actions complained of were under color of state law. Their argument focuses on the Guard’s actual administrative authority at the state level. The governor is the commander-in-chief of each Guard unit and the adjutant general, a state officer, is the chief acting executive. Appellees’ discharge was effected by Adjutant General Menard: the other appellants worked under Menard. Appellees also observe that while the other appellants are federal employees, they had to maintain their rank in the state Guard in order to maintain their employment as federal technicians and thus be in the position to discharge appellees.⁷

III.

The “under color of state law” requirement is identical to the “state action” requirement of the fourteenth amendment. Lugar v. Edmondson Oil Co. Inc. 457 U.S. 922, 102 S.Ct. 2744, 73 L.Ed.2d 482 (1982); Krynicky v. University of Pittsburgh, 742 F.2d 94 (3d Cir.1984). Thus, a showing that actions were “under color of state law,” like a showing of the presence of “state action,” does not require that the challenged action be pursuant to a state statute. Rather, the question is “whether there is a sufficiently close nexus between the State and the challenged action,” Jackson v. Metropolitan Edison Co., 419 U.S. 345, 351, 95 S.Ct. 449, 453, 42 L.Ed.2d 477 (1974), or whether the state “has so far insinuated itself into a position of interdependence” that there is a “symbiotic relationship” between the actor and the state such that the challenged action can “fairly be attributed to the state.” Krynicky, supra, at 99.

There is no set formula for determining whether the employees of an agency with both state and federal characteristics act under color of state law. All of the circumstances must be examined to consider whether the actions complained of were sufficiently linked to the state. See Lake Country Estates Inc. v. Tahoe Regional Planning Agency, 440 U.S. 391, 99 S.Ct. 1171, 59 L.Ed.2d 401 (1979). A crucial inquiry is “whether day-to-day operations are supervised by the Federal [or state] government.” Detore v. Local 245 Jersey City Public Employers Union, 615 F.2d 980, 983 (3d Cir.1980) (quoting United States v. Orleans, 425 U.S. 807, 815, 96 S.Ct. 1971, 1976, 48 L.Ed.2d 390 (1976)).

While the National Guard’s hybrid status complicates this inquiry, we have strong guidance from our opinion in Lasher v. Shafer, 460 F.2d 343 (3d Cir.1972), which involved facts strikingly similar to the facts of this case. In Lasher, National Guard technicians alleged that they had been demoted and abused by their supervisors because of their active union involvement. We concluded that defendants had acted under color of state law. We noted that the Pennsylvania National Guard is part of the state militia,⁸ that the Pennsylvania Governor is commander-in-chief of the Guard, and that defendants had not been called into service of the United States at the time of the actions complained cf. Id. at 346. Moreover, we explicitly rejected the argument, stressed by appellants in the instant case, that because the source of the National Guard’s authority is federal, even actions administered at the state level were not under the color of state law. Id. at 348.

Lasher does not control this case because it concerned events that occurred prior to the National Guard Technicians Act of 1968. Although the 1968 Act had been passed by the time of the opinion, we explicitly refuséd to address whether the conclusion that National Guard personnel acted under the color of state law was altered by the 1968 Act. Therefore, we must make that determination in this case.

The 1968 Act, inter alia, made National Guard technicians, who had been state “caretakers” under the previous statute, federal employees. The fact that the Act conferred federal employee status on appel-lees is irrelevant to the issue of whether those who discharged them acted under color of state law. See supra note 4. The 1968 Act also made appellants, with the exception of Adjutant General Menard, federal employees; this too is not dispositive because the critical inquiry remains whether their actions were made possible by authority derived from the state. See Rowe v. State of Tennessee, 609 F.2d 259, 263 (6th Cir.1979) (explicitly rejecting the claim that “since as National Guard technicians they are federal employees, their disciplinary or retaliatory actions against Rowe were likewise under color of federal law.”)

The crucial question is whether the 1968 Act was either intended to render, or had the effect of rendering the National Guard more federal in character to the point where technician supervisory personnel and the adjutant general can no longer be considered as acting under color of state law when participating in personnel decisions resulting in the discharge of ANG technicians. This question has been considered by the Fifth and Sixth Circuits, both of which have held that the 1968 Act was not designed to federalize the National Guard, and that Guard officials may be sued under section 1983. Rowe v. State of Tennessee, 609 F.2d 259 (6th Cir.1979); NeSmith v. Fulton, 615 F.2d 196 (5th Cir.1980). See also Schultz v. Wellman, 717 F.2d 301 (6th Cir.1983) (following Rowe);⁹ Bollen v. National Guard Bureau, 449 F.Supp. 343, 349 (W.D.Pa.1978) (following Lasher without discussing the 1968 Act); Syrek v. Pennsylvania Air National Guard, 371 F.Supp. 1349 (W.D.Pa.1974) (following Lasher after explicitly finding that the 1968 Act did not federalize the Guard), rev ’d on other grounds, 537 F.2d 66 (3d Cir.1976); contra Vargas v. Char don, 405 F.Supp. 1348, 1351 (D.P.R.1975) (holding adjutant general not liable under section 1983 without discussing the 1968 Act).

The legislative history of the 1968 Act explicitly reveals the several purposes of that Act; federalizing the Guard’s administration was not among them. The House Report unequivocally stated Congress’ goals in passing the Act:

In authorizing federal employee status for the National Guard technicians, the purpose of this legislation is—

(a) [t]o provide a retirement and fringe benefit program which will be both uniform and adequate;

(b) [t]o recognize the military requirements and the State characteristics of the National Guard by providing for certain statutory administrative authority at the state level with respect to the technician program, (emphasis added)

(c) [t]o clarify the technician’s legal status which in certain areas has been the subject of conflicting court decisions, especially on the matter of whether technicians are covered under the Federal Tort Claims Act regarding third party actions against the U.S. Government.

H.R.Rep. No. 1823, 90th Cong.2d Sess. (1968) reprinted in 1968 U.S.Code Cong. & Ad.News 3318, 3319.

A more express statement of congressional objectives could not be asked for, and none of these objectives suggests that Congress intended to reduce the state involvement in the Guard. Two of the goals — providing technicians with a uniform and adequate fringe benefit program and clarifying the status of Guard technicians for the purpose of the Federal Tort Claims Act — are irrelevant to whether technician supervisory personnel and the adjutant general act under color of state law. The third goal, to “recognize the State characteristics of the National Guard,” casts the most light on the question of state action. In explaining the provisions about adjutant generals, for example, the House Report said:

This requirement is intended to achieve two purposes: a) recognize the State character of the Guard and b) meet the requirement of giving the adjutants general (who are State officers) the statutory function of employing Federal Employees.¹⁰

Id. at 3330. Under the 1968 Act, each Guard unit remained under the administration of the adjutant general. Significantly, he remained a state official under the Act. In the case at bar, the other defendants were subordinates of the adjutant general; his authority was needed to consummate their efforts to discharge appellees.

In short, we agree with the Fifth and Sixth Circuits that the 1968 Act left the Guard’s administrative authority largely at the state level. The Guard has historically been a matter of intense interest on the state level and the state Guards have zealously fought to prevent federal encroachment. See generally M. Derthick, The National Guard In Politics (1965). Congress was apparently sensitive to this situation and elected to preserve the state administrative authority over the Guard. We are cognizant of the Guard’s importance in the national military structure, see supra note 6. It is for Congress, however, not the courts, to establish the nature of the Guard. In 1968 Congress addressed the nature of the Guard and elected not to make the Guard’s administration more federal in character. Accordingly, we see nothing that permits, much less compels us to depart from our holding in Lasher. See Syrek v. Pennsylvania Air National Guard, 371 F.Supp. 1349, 1351 (W.D.Pa.1974) (“After a review of the amended statute and its legislative history we do not think the amendment alters either the logic or the holding of Lasher ...”), rev’d on other grounds, 537 F.2d 66 (3d Cir.1976).

The dissent acknowledges the state’s heavy involvement in the Guard program. It argues, however, that focusing on the particular challenged action — the discharge of appellees — compels the conclusion that appellants acted exclusively under color of federal law. This argument rests on the fact that, in administering the technician program generally and in his authority to dismiss technicians specifically, the adjutant general acts as an agent of the Secretary of the Air Force, 32 U.S.C. § 709(c), (e)(3) (1982).

We cannot accept this argument; while the adjutant general acted as a federal agent in dismissing appellants, see Chau-doin v. Atkinson, 494 F.2d 1323, 1329 (3d Cir.1974), (adjutant general is federal agent for purposes of jurisdiction under 28 U.S.C. § 1361), it does not follow that his actions were done exclusively under color of federal law.¹¹ The dissent recognizes that “Congress in the main permitted administrative control of the Guard to remain at the state level,” but denies the authority at the state level where “personnel matters for civilian technicians” . are concerned. Dis.Op. at 399. Control over technician personnel matters, however, was left at the state level by Congress. The dissent does not dispute that the adjutant general, a state officer, retains the discretion to determine when technicians are to be discharged as well as the authority to discharge them. Nor does it deny that, in the instant case, the adjutant general made and implemented the final decision to discharge appellees. The adjutant general’s actions involved precisely the kind of administrative control over Guard personnel that Congress purposely left at the state level, see supra 390-391, not an “intentional deviation from the federal path,” Ellis v. Blum, 643 F.2d 68, 83 n. 17 (2d Cir.1981).

The adjutant general’s authority to dismiss technicians must be exercised pursuant to federal regulations. To infer from this fact that state action is absent, however, is far too great a leap. It rests on the erroneous assumption that the ultimate statutory source of authority is the sole inquiry for determining whether actions are under color of state law. In fact, all of the circumstances surrounding the challenged action must be taken into account. See Lake Country Estates Inc. v. Tahoe Regional Planning Agency, 440 U.S. 391, 99 S.Ct. 1171, 59 L.Ed.2d 401 (1979); Askew v. Bloemker, 548 F.2d 673, 677 (7th Cir.1976).¹² Here, when all of the circumstances are considered, the state action requirement is clearly met. See Rowe v. State of Tennessee, 609 F.2d at 264 (“It strains belief to think that the decision to discharge an individual technician was not within the statutory administrative authority at the state level.”).

IV.

The dissent argues that the 1968 Technicians Act preempts relief under section 1983. As the dissent notes, the Supreme Court has found certain remedies to preclude section 1983 actions — but only when it found that Congress clearly intended for such remedies to be exclusive. See, e.g., Middlesex City Sewerage Authority v. National Sea Clammers, 453 U.S. 1, 101 S.Ct. 2615, 69 L.Ed.2d 435 (1981) (Federal Water Pollution Control Act intended as exclusive remedy); Smith v. Robinson, — U.S. -, 104 S.Ct. 3457, 82 L.Ed.2d 746 (1984) (Education of the Handicapped Act intended as exclusive remedy); Great American Federal S & L Ass’n v. Novot-ny, 442 U.S. 366, 99 S.Ct. 2345, 60 L.Ed.2d 957 (1979) (Title VII intended as exclusive remedy).¹³ We cannot infer from the 1968 Act that Congress wished to foreclose a section 1983 suit by Guard technicians.

The dissent finds evidence of Congress’ intent to make the 1968 Act the exclusive remedy for Guard technicians in the prefatory language of section 709(e) that “Notwithstanding any other provision of law ...” the terms of the Act are to apply. This language, however, establishes only that the terms of section 709(e) may not be preempted by other statutes, not that the Act provides the exclusive remedy for Guard technicians. That is, Congress clearly intended that in a conflict between section 709(e) and another statute, the terms.of section 709(e) must be followed. It may be, however, that statutes which do not conflict with the 1968 Act may supplement its terms. For this reason, we disagree with the dissent’s view that our holding in New Jersey Air National Guard v. Federal Labor Relations Authority, 677 F.2d 276 (3d Cir.1982) suggests that the 1968 Act provides the exclusive remedy for Guard technicians.

In that case we were faced with a direct conflict between the Federal Labor Management Act (FLMA) and the Technicians Act, i.e., “whether the Technicians Act continues to prohibit appeals from certain decisions of the state adjutant general despite the provisions of the Labor-Management Act, which would ordinarily require the establishment of procedures for such appeals.” Id. at 281. Faced with this conflict we held that “section 709(e) must be read to override any conflicting provisions of law in existence at the time that the Technicians Act was enacted.” Id. at 283. (emphasis added). The case at bar does not present such a conflict between two statutes. Allowing appellees a section 1983 remedy does not conflict with any terms of the 1968 Act;¹⁴ The Guard’s internal administrative processes, as established by the 1968 act, remain intact “notwithstanding” the bringing of a section 1983 action.

We must also reject the dissent’s argument that the “comprehensive” nature of the 1968 Act suggests that Congress intended it as an exclusive remedial scheme. The statute that preceded the 1968 Act was anything but a comprehensive remedial scheme; it was limited to technical aspects of the technician program such as the sources of funding of the Guard. The 1968 Act amended the earlier statute to make Guard technicians federal employees, primarily in order to clarify their status with respect to retirement benefits and the Federal Tort Claims Act. See supra 392-393. Congress also took the opportunity to establish certain internal administrative procedures of the Guard. 32 U.S.C. § 709(e). The context in which the 1968 Act was passed suggests that the provisions establishing a “remedial scheme” were designed merely to clarify the internal procedures and authority of the Guard in the wake of the technicians’ new status as federal employees. There is no evidence in the legislative history that Congress was crafting a comprehensive remedial scheme intended to preclude other remedies available to technicians.¹⁵ Indeed, congressional discussion of the statute is almost entirely bereft of reference to either section 709(e) specifically or the statute’s role in creating a “remedial scheme” generally.

Thus the 1968 Act is on a very different footing from the statutes at issue in Sea Clammers, Novotny, and Robinson: the Federal Water Pollution Control Act, Title VII of the Civil Rights Act of 1964, and the Education of the Handicapped Act, respectively. In each of those instances, the legislation represented Congress’ effort to deal with a pressing national problem in a comprehensive manner. The statutes were voluminous and detailed. They had particular provisions explaining the remedies available to classes of plaintiffs, and detailing the circumstances under which aggrieved parties could pursue their rights in state or federal courts. By contrast, the 1968 Technicians Act did not address a pressing national problem, nor did it involve comprehensive reform. Rather, it clarified an internal administrative procedure by which discharged employees could pursue their grievances. Given section 1983’s critical historical role in vindicating constitutional rights, we should not lightly infer that such a statute as the Technicians Act was intended to displace it.¹⁶

The dissent suggests that courts should “refrain from interfering” with congressional policy. Dis.Op. at 403. We agree, but we do not agree that our unwillingness to prevent appellees from bringing a section 1983 action constitutes interference with Congress. On the contrary, our holding adheres to the policy of judicial deference set forth by the Supreme Court in the Sea Clammers line of cases, i.e., ruling out certain remedies only when it can be clearly inferred that Congress intended their preemption. We simply cannot draw that inference from legislation that amended a technicial statute primarily to clarify the employment status of Guard technicians. The fact that the Act included a provision governing the internal administrative procedures to be followed when technicians are discharged does not justify the conclusion that Congress intended it as the sole remedy for Guard technicians.¹⁷

V.

For the reasons discussed above, we hold that appellants acted under color of state law in participating in personnel decisions resulting in the discharge of appellees. As we cannot infer congressional intent to preclude Guard technicians from bringing section 1983 actions against their superiors, we will affirm the district court’s decision that appellees may maintain a cause of action against appellants under section 1983.

1 . See Bivens v. Six Unknown Named Agents of the Federal Bureau of Narcotics, 403 U.S. 388, 91 S.Ct. 1999, 29 L.Ed.2d 619 (1971).

2 . All of the defendants except Orr and Gerard were charged with violating 42 U.S.C. § 1983.

3 . In Johnson v. Orr, 776 F.2d 75 (3d Cir.1985), this panel heard an appeal on all aspects of the case except the one now before us. We upheld the district court’s grant of summary judgment for appellees under the APA and for appellants on the claim of violation of due process. As a result of that disposition, the other claims brought under section 1983 are all that remains in the district court. Those claims have been stayed pending our decision on this interlocutory appeal. In addition, the United States Court of Claims retains jurisdiction over the damage claims.

4 . The National Guard Technicians Act of 1968 provides in part:

A technician employed under subsection (a) is an employee of the Department of the Army or the Department of the Air Force, as the case may be, and an employee of the United States.

32 U.S.C. § 709(d).

Thus the 1968 Act made Johnson and Sheller, as well as appellants, federal employees. Appel-lees' employment status is irrelevant, however, because "that status does not inform us whether those injuring him [them] acted under color of state or federal law.” Lasher v. Shafer, 460 F.2d 343, 347 (3d Cir.1972).

5 . "(e) Notwithstanding any other provision of law and under regulations prescribed by the Secretary concerned—

(3) a technician may, at any time, be separated from his technician employment for cause by the adjutant general of the jurisdiction concerned.”

6 . In their amicus briefs, the Adjutant Generals Association of the United States, and the State of California and Adjutant General of the California National Guard argue that because of the Guard’s critical role in the United States’ national defense, its disciplinary proceedings should be immune from review in the courts. See Chappell v. Wallace, 462 U.S. 296, 103 S.Ct. 2362, 76 L.Ed.2d 586 (1983); Feres v. United States, 340 U.S. 135, 71 S.Ct. 153, 95 L.Ed. 152 (1950). We do not reach the issue of military immunity, which appellants did not brief, because it is not part of the question certified by the district court. Cf. Ungar v. Dunkin, 531 F.2d 1211, 1215-16 nn. 4 & 5. (3d Cir.1976).

7 . In Johnson v. Orr, 776 F.2d 75 (3d Cir.1985), the requirement that technicians retain their state membership defeated Johnson’s claim for reinstatement. Despite our holding that Johnson was improperly discharged, we found him ineligible for reinstatement because he had left the New Jersey Guard.

8 . See also Engblom v. Carey, 522 F.Supp. 57, 65 (S.D.N.Y.1981), "[T]he Guard is the modern day successor to the Militia reserved to the states by Art. 1, § 8 cls. 15, 16 of the Constitution..."

9 . Appellants claim that the Fifth and Sixth Circuit cases are distinguishable from the instant case. They attempt to distinguish NeSmith and Shultz on the grounds that plaintiffs in those cases were discharged from their military positions in the state unit as well as from their positions as federal employees. However, as we noted in Lasher, the employee status of plaintiffs has no bearing on whether those injuring them acted under color of state law. 460 F.2d at 347 (3d Cir.1972). See supra note 4.

In Rowe, plaintiff, like appellees in the instant case, was dismissed only from his position as a technician. Appellants argue that Rowe is distinguishable because the plaintiff in that case alleged a campaign of harassment by both his military and his civilian supervisors. The Rowe court, however, quite clearly held that civilian supervisors could be liable under section 1983. The court first concluded that plaintiff’s military and joint military/civilian supervisors, including the adjutant general, could act under color of state law. It proceeded to hold that civilian technicians also acted under color of state law if they acted pursuant to their supervisory authority over plaintiff. The court remanded the case, in part for a determination whether the challenged actions were made possible by defendants’ official power or were mere private acts of harrassment. In the instant case, it is unquestionable that appellants’ actions were pursuant to their official authority.

The dissent downplays the significance of Rowe by asserting that "the Rowe court was strongly influenced by Lasher ... which dealt with the National Guard before the 1968 amendment.” Dis. Op. at 399. In fact, the Rowe court explicitly considered (and rejected) the possibility that that 1968 Act undercut the rationale in Lasher. 609 F.2d 264.

10 . it is worth noting that the original House . version of the Bill designated the State Adjutant General "or other appropriate persons” to administer the technicians program. The Senate version, deleted "or other appropriate persons” to ensure that the program would remain under state control. 114 Cong.Rec. h24709 (daily ed. August 1, 1968).

11 . In Nesmith v. Fulton, 615 F.2d 196 (5th Cir.1980), the Fifth Circuit adopted our conclusion in Chaudoin that the adjutant general was a federal agent for jurisdictional purposes, but nevertheless held that he acted under color of state law in discharging technicians. Indeed, the Nesmith court stated that defendants had acted under color of federal as well as state law. Id. at 200-01 n. 7.

12 . The dissent erroneously asserts that Askew supports its position. The court in Askew found that municipal police officers involved in a federal investigation had not acted under color of state law. It did so, however, only because the “totality of the circumstances” surrounding the challenged operation showed that it was controlled by the federal authorities. 548 F.2d at 677. Here, the totality of the circumstances suggest that the real authority to discharge technicians is at the state level. Indeed, it is probable that the provisions making the adjutant general's authority over the technician program pursuant to federal regulations were primarily a means of clarifying the permissibility of a state official employing federal employees. It is certainly not the case that the adjutant general acts as an "agent” to the Secretary of the Air Force in the sense of carrying out his commands. On the contrary, as noted, the actual decision to discharge technicians, and the implementation of that decision, is made by the adjutant general.

13 . Indeed, in Novotny the Court clarified that its holding did not overturn the many cases where “we have held that substantive rights conferred in the 19th Century were not withdrawn, sub silentio, by the subsequent passage of the modern statutes.” 442 U.S. at 377, 99 S.Ct. at 2351.

14 . Section 709(e)(5) says "a right of appeal ... shall not extend beyond the adjutant general of the jurisdiction concerned." That provision precludes further administrative appeals, not court review of the Guard’s actions. New Jersey Air National Guard v. Federal Labor Relations Authority, 677 F.2d 276, 280 n. 3 (3d Cir.1982).

15 . The dissent makes much of the fact that section 709(f) makes certain provisions of other civil service legislation inapplicable to Guard technicians. The dissent attaches particular significance to the fact that section 709(f) renders section 7512 of Title 5 inapplicable to Guard technicians. Since section 7512 establishes the procedures involved in adverse actions against federal employees, the dissent concludes that Congress intended the procedures described in section 709 as the exclusive channel for technician appeals. On the contrary, section 709(f) buttresses our view that the provisions of section 709 that establish a remedial scheme represent Congress’ effort to clarify the administrative implications of making technicians federal employees. As guard technicians are anomalous federal employees in that their employment is administered at the state level, Congress apparently thought that the procedural avenues generally followed in cases involving federal employees were inappropriate. This decision concerned the internal administrative procedure of the Guard; it casts no light on what judicial remedies may be available to Guard technicians. Moreover, little significance can be read into Congress exempting technicians from the comprehensive remedies of the Civil Service Reform Act which was enacted 10 years after Congress exempted technicians from the coverage of section 7512.

16 . It is true that the Guard's actions are reviewable agency actions under the APA. The dissent suggests that appellees’ remedies under the APA are adequate to redress their grievances, and, therefore, a section 1983 action is inappropriate. We reiterate that absent clear evidence of Congress' intent, it is not for the courts to pick and choose among a party’s available remedies. In any event, while the dissent characterizes the APA and section 1983 as "roughly parallel remedies,” Dis.Op. n. 4, punitive damages are available only in actions brought under the latter. See Carlson v. Green, 446 U.S. 14, 22, 100 S.Ct. 1468, 1473, 64 L.Ed.2d 15 (1980) (”[P]unitive damages are available in a proper § 1983 action”).

17 . Appellants' analogy between this case and Bush v. Lucas, 462 U.S. 367, 103 S.Ct. 2404, 76 L.Ed.2d 648 (1983) is flawed. In Bush, the Court considered it inappropriate to imply a Bivens -type cause of action for a federal employee against his employer because congressional enactment of a comprehensive civil service scheme was a "special factor counselling hesitation" to imply the requested remedy. Id. at 390, 103 S.Ct. at 2417. The Court characterized the issue as follows: "whether an elaborate remedial system that has been constructed step by step, with careful attention to conflicting policy considerations, should be augmented by the creation of a new judicial remedy." Id. at 388, 103 S.Ct. at 2416. (emphasis added) We have already seen that this case does not involve an elaborate remedial system. In any event, appellees have not asked us to augment their remedies with "the creation of a new judicial remedy.” The court in Bush was concerned that permitting a Bivens cause of action violated the province of Congress. Here that same deference cautions against denying appellees the statutory remedy of section 1983.

We must likewise reject appellants’ argument that, in the wake of Bush, allowing section 1983 actions against the National Guard "would create technicians as a special class of federal employees" with "remedies for alleged constitutional violation against their supervisors.” (appellants’ brief at 20). National Guard technicians, like everyone else, may bring a section 1983 against those who violate their constitutional rights while acting under color of state law. Our decision today does not create a special class of federal employees. Guard technicians are "special,” in the sense that some remedies may be available to them that are not available to other federal employees, only because of the hybrid status of the guard. To be sure, the blessing is a mixed one: Guard technicians are also rare federal employees who can be liable under section 1983. See Rowe v. State of Tennessee, 609 F.2d 259 (6th Cir.1979).