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OVERTON v. NEW YORK STATE DIV. OF MILITARY

Docket No. 03-6008.

373 F.3d 83 (2004)

William OVERTON, Plaintiff-Appellant, v. NEW YORK STATE DIVISION OF MILITARY AND NAVAL AFFAIRS, a subdivision of the State of New York, James Roche, Secretary of the Air Force, Defendants-Appellees, Victor H. Horton, sued in his individual capacity, Thomas P. Maguire, sued in his individual capacity, Defendants.

United States Court of Appeals, Second Circuit.

Decided: June 3, 2004.

Attorney(s) appearing for the Case

Stephen Bergstein, Thornton, Bergstein, & Ullrich, LLP (Christopher D. Watkins, of counsel), Chester, NY, for Plaintiff-Appellant.

Ross E. Morrison, Assistant United States Attorney for the Southern District of New York (James B. Comey, United States Attorney, and Neil M. Corwin, Assistant United States Attorney, of counsel), New York, NY, for Defendant-Appellees Roche.

David Axinn, Assistant Solicitor General for the State of New York (Eliot Spitzer, Attorney General of the State of New York, of counsel), New York, N.Y., for Defendant-Appellee New York State Division of Military and Naval Affairs.

Before: POOLER, SACK, and WESLEY, Circuit Judges.

POOLER, Circuit Judge, concurs in the judgment in a separate opinion.

SACK, Circuit Judge.

The plaintiff-appellant, William Overton, was at all relevant times a dual-capacity Guard Technician under the National Guard Technicians Act of 1968, 32 U.S.C. § 709. As such, he was simultaneously employed by the New York Air National Guard (the "Guard") in a military capacity, and by the United States Department of the Air Force (the "USAF") in, at least nominally...

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