Opinion
No. 99-CV-132D
May 24, 2000
FINDINGS OF FACT AND CONCLUSIONS OF LAW
The above-captioned case came before the Court for a bench trial which was held April 17-20, 2000, in Casper, Wyoming. The Court, having heard the evidence of the parties, having reviewed the exhibits and depositions submitted, and being otherwise fully advised in the premises, FINDS and ORDERS as follows:
Jurisdiction
The Plaintiff, Barbara Jenenne Nelson, filed suit against the Defendants under 42 U.S.C. § 1983. Therefore, this Court has jurisdiction over this matter pursuant to 28 U.S.C. § 1331. Alternatively, Plaintiff recites that she brought the action directly under the Fourteenth Amendment, pursuant to the Federal Declaratory Judgment Act, 28 U.S.C. § 2001.
The Court is now prepared to issue its findings of fact and conclusions of law pursuant to Fed.R.Civ.P. 52(a).
Findings of Fact
The Court accepts as true the following factual stipulations entered by the parties:
1. The Plaintiff, Barbara Jenenne Nelson, is a resident of the State of Colorado. The Defendants are all residents of the State of Wyoming.
2. Plaintiff Nelson became a member of the Wyoming National Guard on April 15, 1989. In November, 1990, she became Commander of the 187th Air Evac Squadron. In this capacity, she was called to active duty on January 24, 1991, and deployed to England in support of Operation Desert Storm.
3. Defendant Boenisch is the Adjutant General of the Wyoming National Guard. Plaintiffs suit against General Boenisch is limited to his official capacity. Defendant Geringer is the Governor of the State of Wyoming. Plaintiff makes claims against Governor Geringer in both his individual and official capacities.
4. In early 1995, after his appointment as Adjutant General, Brigadier General Boenisch invited all qualified members of the Air Guard to apply for the vacant position of Assistant Adjutant General ("AAG"). Plaintiff and three other officers appeared before a military selection board headed by General Boenisch. Plaintiff was selected on the basis of merit as the best qualified candidate. In that selection process, General Boenisch did not consider Plaintiffs residence to be a relevant consideration. The selection was based entirely upon the Plaintiffs ability to perform the responsibilities of the Assistant Adjutant General.
5. When Plaintiff was offered the position of AAG, she expressed her concern as to whether she would be able to stay in that position until she was eligible to retire, seven years later.
6. The May 1, 1995, appointment of Plaintiff as the AAG was done under the "Direction of the President" and was signed by Governor Geringer. Governor Geringer was not directly involved in the interview or selection process, and he relied entirely on the decision of the promotion panel and the recommendation of Adjutant General Boenisch.
7. In December 1995, General Boensich restructured the administration to make Plaintiff the AAG and Commander of the Air Department, in order to comply with National Guard Bureau directives requiring the AAG to be the Commander. At her initial appointment, Plaintiff was not the head or Commander of the Air Department. In the Spring of 1996, Plaintiff was promoted to the rank of Colonel effective May 6, 1995.
8. In the Spring of 1997, a military selection board met to select a new Assistant Adjutant General for Army to replace Brigadier General Castillion who was vacating the position. The candidates consisted of two officers who were residents of Colorado and an officer who was a resident of Wyoming. The board Chose Howard "Art" Dillon, a Colorado resident.
9. General Boensich's office began an initiative to update and revise Wyoming's statutes regarding Wyoming's military organization. Over a period of time, the members of General Boenisch's staff were involved in a project to draft legislation for introduction in the 1998 legislative session.
10. A portion of the proposed legislation was amended on a third reading floor amendment by Representative Wayne Johnson. The amendment required that the residency requirement applicable to the Adjutant General be applied to the AAGs as well.
11. On March 20, 1998, Governor Geringer signed the legislation into law. The effective date of the statutes was July 1, 1998.
12. On April 8, 1998, an attorney in Laramie, Wyoming, whose partner is a member of the Wyoming House of Representatives, sent a letter to then Attorney General William U. Hill threatening to tile suit against the Guard to compel the appointment of Wyoming residents to the AAG offices. The threatened suit was on the behalf of Joseph Michaels, a Wyoming Guard member who had not received the Assistant Adjutant General Army position.
13. On April 10, 1998, while on a trip to Cody, Wyoming, Governor Geringer received materials from a Wyoming Army Guard Member, Alan Peterson. The materials complained that non-residents had been appointed to serve in Wyoming Guard positions. Geringer forwarded the materials to his Deputy Chief of Staff, Carolyn Teeter. She prepared a cover sheet summarizing the complaint by Peterson as "appointing out-of-staters to National Guard Posts," and forwarded the material to General Boenisch for a response.
14. On April 8, 1998, the first letter to the editor complaining about the residency issue appeared in the Casper Star-Tribune. The letter appeared under the heading: "Guard Positions Meant for Residents."
15. On April 12, 1998, an article on the residency dispute appeared in the Casper Star-Tribune.
16. On April 14, 1998, General Boenisch and Colonel Asay, his JAG officer, met with Attorney General Hill and Assistant Attorney General Heckert to discuss concerns about residency requirements in the new law.
17. On April 24, 1998, General Boenisch met with Governor Geringer to discuss the residency requirement. Boenisch briefed the Governor on the residency issue, as well as other matters pertaining to the new legislation.
18. On April 5, 1998, Plaintiffs promotion ceremony for the office of Brigadier General was held in the Air National Guard mess hall. Governor Geringer attended the ceremony and swore in Nelson.
19. On May 6, 1998, Wyoming State Representative Mike Massey wrote a letter requesting an Attorney General's Opinion. In that letter, Massey stated that he realized the "law dealing with the issue . . . cannot be applied retroactively." Instead, he asked whether or not the appointment of the non-residents violated the Wyoming Constitution.
20. On July 29, 1998, Attorney General Hill (with Mike Hubbard and Douglas J. Moench) rendered an opinion concluding that non-residents could not lawfully be appointed to an AAG position in the Wyoming National Guard. General Boenisch issued a press release announcing his intention to seek clarification of the Attorney General's Opinion.
21. On August 4, 1998, General Boenisch met with Geringer. Boenisch supplied Geringer with a copy of his questions and answers from the meeting with the Attorney General, as well as his own outline of points which was developed at a meeting with his staff.
22. The outline was prepared by Boenisch's staff, and listed numerous considerations regarding the residency requirement.
23. On August 12, 1998, Boenisch verbally notified Plaintiff that she was to be removed from her position.
24. Geringer was running for re-election in 1998. The primary election was held on August 18, 1998, and the general election was held on November 3, 1998.
25. On August 3 1, 1998, Nelson sent a written request to Boenisch regarding a second Attorney General Opinion on a quo warrant0 action.
26. On September 7, 1998, Plaintiff made a written request to the Attorney General's Office asking for a second Attorney General's Opinion, which would clarify the first Opinion. Nelson also requested that Boenisch seek a second Opinion.
27. On September 9, 1998, Boenisch Notified Nelson that her request for a hearing had been denied and that her request for a more specific Attorney General's Opinion had also been denied.
28. Howard "Art" Dillon was also removed from his office.
29. On October 6, 1998, the Attorney General's Office sent a letter to Nelson, refusing to provide a second, clarifying, Attorney General's Opinion.
30. Nelson was officially removed from her AAG position effective September 25, 1998. On October 22, 1998, Bruce Asay, a Wyoming Resident, was appointed as the AAG for the Air Guard. Plaintiff was allowed sufficient "time-in-grade" so she could retire as a Brigadier General.
31. The Wyoming Adjutant General is a full-time state position for which the Adjutant General receives a state salary. The AAGs receive a state salary only when they are called into State active duty.
32. The Wyoming National Guard includes substantial numbers of persons who reside outside the state of Wyoming, but who perform services for the Guard in Wyoming. As of the time when this case arose, approximately 20 percent of the Army National Guard members and 51 percent of the Air National Guard members were non-residents of Wyoming. Approximately 50 percent of all of the officers serving in the Wyoming Air national Guard were non-residents.
33. During Nelson's service as an AAG, her performance was acceptable and no issue existed regarding her performance of the duties of the office nor in regard to her status as a non-resident. Except for the Attorney General's Opinion and Geringer's decision to remove her on the basis of her non-residency status, Nelson would have continued as an AAG, unless her performance became substandard or she lost her federal recognition.
Conclusions of Law Plaintiffs Claim Under the Privileges and Immunities Clause
Article IV, 5 2 of the Constitution provides that the "Citizens of each State shall be entitled to all Privileges and Immunities of Citizens in the several States." The Clause "thus establishes a norm of comity without specifying the particular subjects as to which citizens of one State coming within the jurisdiction of another are guaranteed equality of treatment." Supreme Court of Virginia v. Friedman, 487 U.S. 59, 64 (1988). Indeed, the "Clause is not one the contours of which have been precisely shaped by the process and wear of constant litigation and judicial interpretation over the years since 1789." Baldwin v. Montana Fish 12 Game Comm'n, 436 U.S. 371,379 (1978).
The Supreme Court has stated that the terms "citizen" and "resident" can be used interchangeably. Supreme Court of New Hampshire v. Piper, 470 U.S. 274,279 n. 6 (1985).
One of the earliest and most important pronouncements concerning the Clause appeared in Paul v. Virginia, 8 Wall. 168, 180 (1869). There, in oft-quoted language, the Court stated:
It was undoubtedly the object of the clause in question to place the citizens of each State upon the same footing with citizens of other States, so far as the advantages resulting from citizenship in those States are concerned. It relieves them from the disabilities of alienage in other States; it inhibits discriminating legislation against them by other States; it gives them the right of free ingress into other Sates, and egress from them; it insures to them in other States the same freedom possessed by the citizens of those States in the acquisition and enjoyment of property and in the pursuit of happiness; and it secures to them in other States the equal protection of their laws. It has been justly said that no provision in the Constitution has tended so strongly to constitute the citizens of the United States one people as this.
Id. at 180-81.
"It has not been suggested, however, that state citizenship or residency may never be used by a State to distinguish among persons." Baldwin, 436 U.S. at 383. As outlined in Baldwin, the Court has held that suffrage, "qualification for an elective office of the State," and application of State services are exceptions to the general rule of non-discrimination. Id.
"When examining claims that a citizenship or residency classification offends privileges and immunities protections, [this Court must] undertake a two-step inquiry. First, the activity in question must be sufficiently basic to the livelihood of the Nation as to fall within the purview of the Privileges and Immunities Clause." Supreme Court of Virginia v. Friedman, 487 U.S. 59,64 (1988). "Second, if the challenged restriction deprives nonresidents of a protected privilege, [this Court] will invalidate it only if. . . the restriction is not closely related to the advancement of a substantial state interest." Id. at 65.
Under part one of the analysis, "it is only with respect to those `privileges' and `immunities' bearing upon the vitality of the Nation as a single entity that a State must accord residents and nonresidents equal treatment." Supreme Court of New Hampshire v. Piper, 470 U.S. 274,279 (1985) (internal quotation omitted). Thus, this Court must decide whether appointment of the Assistant Adjutant General of the Wyoming Air National Guard ("WANG") "bears upon the vitality of the Nation as a single entity."
This Court concludes that the AAG position is so "basic to the livelihood of the Nation" as to fall within the protection of the Privileges and Immunities Clause. The WANG, even though it remains under State control much of the time, is an essential part of this Nation's defense under the "Total Force" doctrine. The Guard can be federalized at a moment's notice. One of its main missions is to be able to "seamlessly" operate within the Armed Forces of the United States whenever called upon to do so.
In fulfilling its mission of national defense and security, the Federal Armed Forces depend on the National Guard. In turn, the WANG depends on residents from other states to perform its mission. Without the participation of non-residents, the WANG could not fulfill its mission. While no single person or position may alter the effectiveness of the Guard's mission overall, an inability to till its ranks with the best qualified individuals would. Clearly, therefore, residency requirements for AAG positions "bear upon the vitality of the Nation as a single entity."
Plaintiff argues that she is protected under the Privileges and Immunities Clause because the pursuit of a common calling is one of the most fundamental privileges protected by the Clause. Certainly this is true. In City of Campden, the Court stated "[c]ertainly, the pursuit of a common calling is one of the most fundamental of those privileges protected by the Clause." 465 U.S. at 219. However, in the very same paragraph, the Court stated: "Public employment, however, is qualitatively different from employment in the private sector; it is a subspecies of the broader opportunity to pursue a common calling." Id. The Court's statement suggests caution in analyzing this case under the line of cases discussing a "common calling." In any case, the result is the same.
Defendants argue that, like residency requirements for elected State offices, the residency requirement for the AAG positions is valid because the position is vested with the sovereign power of the State. In Piper, the Court recognized that "without certain residency requirements the State would cease to be the political community that history and the constitutional text make plain was contemplated." Piper, 470 U.S. at 282 n. 13 (internal quotations and alterations omitted). As examples, the Court noted that a State may restrict to its residents both the right to vote and the right to hold state elective office.
This Court concludes, however, that no good reason exists to expand those exceptions to include the Assistant Adjutant General position. First, the AAG position is not a purely State position. Rather, as the testimony at trial indicated, it has both federal and state components that, moreover, can change over time. While it is true that AAGs are appointed by the Governor, it is the federal government that pays their salary. Wyoming law provides no specific duties for the position. In fact, the Wyoming National Guard structure, including the duties of the AAG, was reorganized to comply with federal guidelines. Nelson herself described the functions of the AAG as focusing on training, recruiting, and federal deployment issues. Boenisch testified that the AAG position participates in military selection boards, implements strategic plans, has the power to conduct Court Martials, and can confine persons to jail.
Second, even setting aside the dual nature of the position and assuming that it is a state position, the duties of the AAG are not readily classified as affecting Wyoming's ability to function as a sovereign. Without degrading their importance, the duties relate mostly with policy implementation, rather than policy formulation. Simply put, the jump from State elected office to Federal/State military appointment is too big for this Court to make. Having concluded that the Privilege and Immunities Clause protects the AAG positions, this Court must now turn to the second part of the analysis.
At this point, me Court notes that the Plaintiff argues that Defendants' state sovereignty argument does not apply to whether the protections of the Clause apply, but whether there exists a substantial reason for the discrimination. Authority for Plaintiffs argument can be found in Hicklin v. Orbeck, 437 U.S. 518, 529 (1978) ("Rather than placing a statute completely beyond the Clause, a State's ownership of the property with which the statute is concerned is a factor-although often the crucial factor-to be considered in evaluating whether the statute's discrimination against noncitizens violates the Clause.") See also, United Bldg. Constr. Trades Council Y. Mayor Council of Camden, 465 U.S. 208,221 (same, quoting Hickz). However, in Baldwin, the Court's discussion of sovereignty issues such as suffrage and qualification for elective office of the State occurred in the context of the applicability of the Clause, not in terms of whether there existed a substantial reason for the discrimination. 436 U.S. at 383-88. Nonetheless, this Court need not resolve this question. In either case, the analysis is essentially the same as described above and so is the result. The justifications relating to sovereignty proffered by the Defendants neither remove the discriminatory policy from the protections of the Clause, nor provide a substantial reason for the discriminatory policy.
As stated earlier, any restriction must be closely related to the advancement of a substantial state interest. In other words, the Privileges and Immunities Clause "does not preclude discrimination against citizens of other States where there is a `substantial reason' for the difference in treatment." United Bldg. Constr. Trades Council of Camden v. Mayor Council of Camden, 465 U.S. 208,222 (1984). "As part of any justification offered for the discriminatory law, non-residents must somehow be shown to `constitute a peculiar source of the evil at which the statute is aimed.'" Mayor Council of Camden, 465 U.S. at 222 (quoting Toomer v. Witsell, 334 U.S. 385,398 (1948)).
The residency requirement at issue does not satisfy the test. First, no substantial state interest exists to require AAGs to be residents of Wyoming. At trial, this Court heard no testimony that suggested any reason at all for this residency requirement. Both Governor Geringer and General Boenisch testified that no reason existed for the residency requirement, and that the Wyoming National Guard cannot fulfill its mission without the participation of residents from other states. Colorado residents' participation in the Wyoming National Guard does not present a peculiar source of evil; rather, their participation is a necessary prerequisite to the Wyoming National Guard fulfilling its federal mission.
The only testimony that remotely suggests a reason for the residency requirement for AAGs came from Representative Wayne Johnson, the sponsor of the amendment that added the residency requirement to Title 19. He testified that he felt that those who commanded the Wyoming National Guard should be Wyoming residents. Of course, this feeling can not amount to a substantial state interest. In fact, it is against just these feelings that the Privileges and Immunities Clause offers protection. See Baldwin, 436 U.S. at 378-383.
Second, even assuming a substantial reason exists for the residency requirement, it cannot be said to be closely related to the assumed state interest. "In deciding whether the discrimination bears a close or substantial relationship to the State's objective, the Court has considered the availability of less restrictive means." Piper, 470 U.S. at 284. In this case, a less restrictive means is obvious because it was actually utilized. A military selection board, headed by General Boenisch, determined that Nelson was the best qualified applicant for the AAG position. The selection board knew that Nelson was a Colorado resident, yet still felt that she was the best qualified candidate for the job. The selection board used a less restrictive procedure in making the hiring decision: any legitimate and substantial state interest in having Wyoming residents till the position could have been addressed by the selection board. Enforcement of the residency requirement and its overbroad coverage was therefore not closely related to any State objective.
Thus, that portion of Wyoming Statute § 19-7-104 which requires the position of the AAG to be a Wyoming resident violates Article IV, section 2 of the Unites States Constitution and is therefore void. Any interpretation of Article 6, section 15 of the Wyoming Constitution that requires the AAG positions to be filled by Wyoming Residents would also violate the United States Constitution and would likewise be void. Finally, Governor Geringer's action to remove Nelson from the AAG position was impermissible and is also void under the Privileges and Immunities Clause.
Because the Court has concluded that the Defendants' action were unconstitutional, the Court need not address Plaintiffs remaining Due Process, Equal Protection, Right to Travel, and Commerce Clause claims. Plaintiff's Claims Against Defendant Geringer in His Individual Capacity
This Court denied Defendant Geringer's Motion for Summary Judgement on the Basis of Qualified Immunity because there remained genuine issues of material fact. As the Defendant points out, however, that order does not prevent Defendant from raising the defense again at trial or after trial. As stated in Gardetto v. Mason, 854 F. Supp. 1520, 1531 (D.Wyo. 1994):
[A]lthough a genuine issue of material fact precludes the entry of qualified immunity prior to trial, it does not prevent the defendant from reasserting the defense at trial. In other words, while a factual issue defeats the "immunity from suit" component of the qualified immunity, the defendant will still retain the right to renew the motion at trial in an effort to avail himself of the "immunity of liability" component of the defense. This seems to be the conclusion reached by the Tenth Circuit's recent decision in Guffey v. Wyatt, 18 F.3d 869 (10th Cir. 1994).
Thus, this Court must once again analyze Defendant Geringer's claim of qualified immunity.
As this Court has stated in its earlier Order, courts use a two part test to resolve claims of qualified immunity. "First, the plaintiff must show that defendant's conduct violated a constitutional or statutory right; second the plaintiff must show the right the defendant's conduct violated was clearly established such that a reasonable person in the defendant's position would have known the conduct violated the right." Anaya v. Crossroads Managed Care Sys., Inc., 195 F.3d 584,593 (10th Cir. 1999) (quoting Lawmaster v. Ward, 125 F.3d 1341, 1347 (10th Cir. 1997)).
Further,
[i]n order for a law to be clearly established there must be a Supreme Court or other 10th Circuit decision on point, or the clearly established weight of authority from other circuits must have found the law to be as the plaintiff maintains. However, we have recently recognized that the concept of clearly established law should not be applied too literally. Thus, we have never said that there must be a case presenting the exact fact situation at hand in order to give parties notice of what constitutes actionable conduct. Instead, we merely require the parties to make a reasonable application of existing law to their own circumstances.
Johnson v. Martin, 195 F.3d 1208, 1216 (10th Cir. 1999) (internal citations and quotations omitted).
As determined above, Plaintiff has satisfied the first part of the test. This Court has determined that the Defendants violated her constitutional right under the Privileges and Immunities Clause when she was dismissed from her position. Thus this Court must now turn to whether this right was clearly established at the time.
Both parties concede, and this Court has found, that no case (from the Supreme Court, the 10th Circuit, or any sister circuit) is directly on point. Thus, this Court must decide whether the "contours of the right[s]" at issue here were sufficiently clear such that a reasonable official in Governor Geringer's position would have understood his actions would violate Plaintiffs rights.
Plaintiff has consistently argued that the cases discussing the Privileges and Immunities Clause clearly established that Defendant Geringer's actions were unconstitutional. Specifically, Plaintiff points to language from many cases suggesting that "the pursuit of a common calling is one of the most fundamental of those privileges protected by the Clause." Mayor and Council of Camden, 465 U.S. 208. Indeed, the Supreme Court has said that "[m]any, if not most, of our cases expounding the Privileges and Immunities Clause have dealt with this basic and essential activity." Id.
However, just because the Clause clearly protects the pursuit of a common calling, it does not mean that the law was clearly established that the Assistant Adjutant General position was protected. As noted earlier, public employment is "qualitatively different" than employment in the private sector. Therefore, although the Clause clearly protects the pursuit of a common calling, this is not a common-calling case.
Although Plaintiff does not have to produce a factually identical case, she still has to show that a reasonable official in the Governor's position would have known that his actions would violate her rights. She has failed to do so. The facts in this case rested on that point where two lines of Privileges and Immunities case law converge. On one hand, as described above, the Clause clearly protects the pursuit of a common calling. On the other, the Clause just as clearly contemplates some discrimination on issues surrounding state sovereignty.
It was only after a trial, considerable research, and careful deliberation that this Court could conclude that Defendants' actions were unconstitutional. The argument that the AAG position exercises the sovereign power of the State and thus not subject to the Clause is not totally without merit. Given the subtle factual and legal distinctions that this Court had to make in reaching its conclusion, the Court can not say that the law was clearly established such that a reasonable person in the Defendant's position would have known the conduct violated Plaintiffs rights.
The Court has also considered Plaintiffs other claims in terms of the Governor's qualified immunity, but finds them without merit. First, even if the claims were successful, which is not at all certain, the case law in these areas is not clearly established in terms of its application to this set of facts. Reasonable application of the law surrounding Plaintiffs other claims would not have led to the conclusion that the actions here were unconstitutional. Plaintiff has attempted to force these facts into other constitutional claims. While perhaps peripherally touching other areas, this was a case about the Privileges and Immunities Clause. As described above, it was not at the time clearly established that the Governor's action violated Plaintiffs rights under that Clause. The same uncertainty in the facts and law that underlies that conclusion requires the same conclusion as to Plaintiffs other claims. Therefore, this Court concludes that Defendant Geringer, in his individual capacity, is protected from Plaintiffs claims by qualified immunity.
The Court's conclusion of qualified immunity for Governor Geringer means that Plaintiffs claims for monetary damages against the Governor in his individual capacity fail. Further, it appears the Eleventh Amendment would preclude any award of monetary damages against the other Defendants.
To find a sitting governor personally liable under the facts of this case would have a chilling effect on a governor's ability to exercise legitimate executive authority. A governor's job is difficult enough without having to face the prospect of being second-guessed and held personally liable by a federal judge every time a citizen is aggrieved and brings a suit.
Remedies
The Tenth Circuit has recognized that "reinstatement usually will be granted when a plaintiff prevails in a wrongful discharge case brought under Section 1983." Jackson v. City Of Albuquerque, 890 F.2d 225,233 (10th Cir. 1989). The Jackson court cited with approval Reeves v. Claiborne County Board of Education, 828 F.2d 1096, 1101 (5th Cir. 1987), for the proposition that reinstatement is normally an integral part of the remedy for a constitutionally impermissible employment action. In its discussion of the Reeves case, the Jackson court noted that "[a]lthough reinstatement is not `absolute and automatic,' it is clear that `once the plaintiff establishes that his discharge resulted from constitutionally impermissible motives, he is presumed to be entitled to reinstatement.'" Jackson, 890 F.2d at 233 (quoting Reeves, 828 F.2d at 1102). The Jackson court also cited Allen v. Autuuga County Board of Education, 685 F.2d 1302, 1305 (11th Cir. 1982), for the proposition that reinstatement is a basic element of the appropriate remedy in wrongful employee discharge cases and, except in extraordinary cases, is required.
Nonetheless, the Tenth Circuit has recognized, in both Jackson and Sturrett v. Wadley, 876 F.2d 808 (10th Cir. 1989), that certain circumstances may weigh against granting reinstatement. These circumstances include when reinstatement may be detrimental to the health of the discharged employee, or when the work environment presents an atmosphere of hostility. Jackson, 890 F.2d at 233. This Court, however, perceives neither of these circumstances in the case at bar. Therefore, the Court will order the reinstatement of Plaintiff to the position of Assistant Adjutant General in the Wyoming National Guard.
Finally, the Court recognizes that by ordering Plaintiffs reinstatement, the current AAG might in effect be removed from his position. However, Jackson addressed this issue as well:
If the existence of a replacement constituted a complete defense against reinstatement, then reinstatement could be effectively blocked in every case merely by hiring an innocent third party after the retaliatory purpose was achieved. Thus, the deterrent effect of the remedy of reinstatement would be rendered a nullity . . . . While reinstatement may displace an innocent employee, the "[e]nforcement of constitutional rights (may have) disturbing consequences. Relief is not restricted to that which would be pleasing and free of irritation."
Jackson, 890 F.2d at 234 (quoting Sterzing v. Fort Bend Ind. Sch. Dist., 496 F.2d 92,93 (5th Cir. 1974)).
Conclusion
Thus, the Court finds that Defendants' actions in this case have violated Plaintiffs' rights under the Privileges and Immunities Clause of the United States Constitution. Because this Court has resolved that issue in favor of the Plaintiff, the Court need not address her other claims. The logical remedy for this violation is her immediate reinstatement to her former position. Finally, the Court finds that Governor Geringer's actions, in his individual capacity are protected by qualified immunity. The law surrounding the circumstances of this case was not so clearly established that a reasonable state official would have known that the actions taken here would have amounted to a violation of Plaintiffs constitutional rights.
For the foregoing reasons, it is hereby
ORDERED that Judgment be entered in favor of the Plaintiff. It is further
ORDERED that Plaintiff be reinstated to the rank and position she held before her removal. The Court realizes that it cannot return Plaintiffs federal rank, so it is further
ORDERED that Defendants take appropriate action so that she can again qualify for that federal rank. Defendants shall act with all deliberate speed. To that end, this Court will not consider a request for a stay of the effect of this final order.
JUDGMENT
The Court presided over the trial of this matter without a jury on April 17-20, 2000. The Court previously entered its Findings of Fact and Conclusions of Law pursuant to Fed.R.Civ.P. 52(a). The Court, having ordered Plaintiffs reinstatement to remedy the violation of her the constitutional rights, hereby
ORDERS that, pursuant to Fed.R.Civ.P. 58. Judgment is entered in favor of the Plaintiff, Barbara Jenenne Nelson, who shall be reinstated to her former position.