with in the Decision and Order of July 24, 1997.
The suspension of defendant's "SSI" privileges, however, requires additional analysis by the Court. Though the Army obviously may revoke these privileges, the question presented is whether such a revocation runs afoul of the Double Jeopardy Clause when a soldier is not permitted to: leave post without prior written approval of his company commander; have visitors on off-duty hours; wear civilian clothes; or otherwise be free of interference in personal choice during non-working hours. It has not been the experience of the Court that a private employer may either, limit the travel of an employee to the employer's premises, or restrict his off-duty activities, as a means of sanctioning that employee. The prosecution argues that "service in the military is a unique occupation with special job requirements. Military service requires availability 24 hours per day, seven days per week, 52 weeks per year." (dkt 10). While this may be true it does not necessarily follow that all actions taking place within the military context are parallel to actions taken by private employers.
The role of the military as an employer has been discussed often within the context of Federal Tort Litigation. In one such case, the D.C. Circuit drew a parallel between the military and company towns; "within this multi-faceted relationship, the military imposes duties on personnel, not all of which are plausibly viewed as imposed by the government in its role as employer...". Nelson v. U.S., 267 U.S. App. D.C. 330, 838 F.2d 1280, 1283 (D.C. Cir. 1988). The 11th Circuit makes a similar argument, stating "while providing on-site residences for soldiers may foster camaraderie, encourage discipline and facilitate rapid mobilization in the event of a crisis, it does not draw the entire panoply of soldiers' on-base activities within the ambit of the employment relationship. Bennett v. U.S., 102 F.3d 486, 492 (11th Cir. 1996).
The Court finds the "company town" analysis useful in the present case because of the similarities between such towns and the military. It is the closest parallel that can be drawn between a private employer and the military as an employer, in that in both instances the employees both work and reside within the confines of the employer's property. Additionally, in such towns, as in the military, the employer has greater ability to restrict the actions of his employees than does a typical private employer. With the military, as with company towns historically, "the restrictions imposed...are sometimes galling to the employees and may appear unreasonable to outsiders" Marsh v. Alabama, 326 U.S. 501, 513, 90 L. Ed. 265, 66 S. Ct. 276 (1945) (J. Reed dissenting). When the employer surpasses irritation to its employees, and seeming unreasonableness to the public, however, and begins imposing restrictions that are prohibited by legal rules, the Courts must step in. Id.
The military in this instance has done nothing "illegal" per se by imposing the sanctions discussed herein. For this Court to subject the defendant to further punishment for the same crime however, would be violative of the Double Jeopardy clause of the Constitution. Although the prosecution is correct in its assertion that the military is a different entity from private employers in many ways, this does not mean that the military has a right to deny its employees their constitutional rights.
Private employers who chose to operate a company town historically had greater control over their employees than did other private employers. It did not follow however, that the company town employer could interfere with its employees' constitutional rights simply because they lived on the employer's property. Marsh at 508-509. Just as employees in Marsh could not be denied their First Amendment rights, the defendant in this instance should not be denied the protection of the Double Jeopardy Clause simply because of the peculiarities of the employer for which he works.
Furthermore, the suspension of the "SSI" privileges was punishment under the McAllister analysis. As the defense correctly points out, sanctions imposed by the military are much more serious than those available to a private employer. Unlike in the private arena, soldiers may not simply quit their job if they do not like the sanctions imposed. To do so would result not in civil sanctions, as may occur in the private sector, but serious repercussions, possibly even imprisonment. Thus given the extreme punishments that may be imposed by the military it is important to limit its ability to sanction its employees to strictly that which private employers have the rights to do. This Court is not aware of any caselaw that allows private employers to limit its employees' travels to the confines of the employment premises. Furthermore, the Court is also unaware of any cases allowing employers to limit who its employees can associate with, what they can wear, or what kind of linens they can use during off-duty hours. These are all personal choices, whose relationship to the military's purpose is highly attenuated to say the least. Such restrictions appear to be not those within the power of an employer, but conversely, to be "uniquely within the government's power to punish for criminal wrongdoing" McAllister at 201. Thus, the Double Jeopardy clause bars further prosecution of this case.
Based on the briefs of both parties, the Court feels that the taking away of defendant's "SSI" privileges was not a sanction akin to the act of a private employer. Such punishment goes beyond the actions a private employer could legally take; and therefore, prosecution in this forum would violate the Double Jeopardy Clause. For this reason defendant's motion to dismiss is granted.
WHEREFORE, based upon the foregoing, the defendant's motion to dismiss is granted; it is further,
ORDERED, that the clerk serve a copy of this Order upon the parties forthwith.
Dated: Nov 25, 1997
Watertown, New York
Daniel Scanlon, Jr.
U. S. Magistrate Judge