Petition for Writ of Certiorari — Christoffersen v. Collins

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Q aA Supreme Court, U.S.

aoe FILED

No. MAR 15 1989

JOSEPH ESPANOL, JR,

CLERK

In The

Supreme Court of the United States

October Term, 1988

, %

Alfred P. Christoffersen; William J. Gibson;

Richard F. Main; and John R. Warn,

Petitioners,

VS.

Major General Robert J. Collins, former Adjutant General,

of Washington State; Major General George Coates, Adju-

tant General, of Washington State; Robert S. O’Brien, Trea-

surer, State of Washington; Lieutenant General LaVerne E.

Weber, former Chief National Guard Bureau; Lieutenant

General Emmet H. Walker Jr., former Chief National

Guard Bureau; the Washington State Air National Guard;

the Air National Guard of the United States; the United

States Government through its agencies; the Department

of the Air Force; the Department of Defense; and the

National Guard Bureau,

Respondents.

On Writ Of Certiorari To The United States

Court Of Appeals For The Fifth Circuit

PETITION FOR CERTIORARI

»™

CHARLES MATTHEW ANDI RSEN

WINSTON & CASHATT

19th Floor

Seafirst Financial Center

Spokane, Washington 99201

Telephone: (509) 838-6131

Attorneys for Petitioners

COCKLE LAW BRIEF PRINTING CO,, (800) 225-6964

OR CALL COLLECT (402) 342-2831

aa - ore ari 7

—— aa = § 4-0= ~—= _

QUESTIONS PRESENTED FOR REVIEW

This case presents the claims of four federal

employees (Air National Guard Technicians) who were

prematurely terminated from their employment in viola-

tion of a regulation directing qualified Technicians to

remain in federal service to age fifty-five (55). The sole

basis for termination was the non-reviewable decision of

a State employee (the Washington State Adjutant Gen-

eral) that was made in retaliation for petitioners exercis-

ing their First Amendment rights in “blowing the

whistle” to protect nuclear weapons. Despite repeated

attempts, no court has been willing to review the decision

to terminate these whistle blowers. This case raises the

following significant constitutional questions for review:

1. Is the District Court barred from allowing a trial

of a First Amendment violation because the claim arises

out of a military personnel decision that purports to be

non-reviewable?

2. May the Constitutional claims of members of a

State Militia, not in active federal service, be barred by

the standards for review of military decisions set forth in

Mindes v. Seaman, 453 F.2d 197 (5th Cir. 1971)?

3. Has Air National Guard Separation Regulation

ANGR 36-06 been correctly adopted, both substantially

and procedurally?

TABLE OF CONTENTS

Page

OFFICIAL AND UNOFFICIAL REPORTS OF OPIN-

Peer SPRAIN 5 kak ca necne Ueacescnceuusee eRe 1

PRPs RUN a vo a ck cn ckinecactdaunscuaaeaeee 1

oe gly Bi a hy | 6 rere re a! 2

STATEMENT OF THE CAGE os 5 occu ccinecdasyaaee 4

A. NATURE OF THE CASE..............--- ei 4

B. THE NATIONAL GUARD STRUCTURE........ 6

1. “Phe Federal Agency... ... 2. .5.5.275205e0ee 6

2 Tae SROUG AMONEY ois ck. s ss ccanaes Cees 7

<< FRE TR SUNCAA, osc 0 x ssases scene 7

ye, Bebe” errr rer Tre ry: 8

E. THE REGULATION, ANGER 36-06.............. 10

1, “WRURERRAUIO ose cco ic cane us ee aeee eu ceeee 10

2. How Regulation was Adopted ............. 11

F. MAJOR GENERAL COLLINS’ ACTION ........ 12

CG. ‘THER TOCIESI os os van sce dacs vakecauaeeneee 13

eye! rrreerees rere? cer oS 13

2. Petitionees AcCUOME «0... <iesskncapseeveee 14

3. WANG’s Reeponse. ... 00... 0ceccsccsasinnn 15

4. Political Betalation «... 005 0i6045 daanatees 16

5. Effect of Action on the Petitioners ......... 17

National Significance ..........00seesseeees 18

ili

TABLE OF CONTENTS - Continued

Page

LE) 6 Og 0 18

REASONS FOR GRANTING CERTIORARI ......... 19

A. CONFLICT AMONG THE NATION’S LOWER

NE LE SS OT Cee eT ETE

The Ruling in Bollen v. National Guard Bureau,

DG 4.) SE

Conflict with the Court of Claims..........

Conflict with its Ruling in Sebra v. Neville,

eee atoo (ot Cir, 1986)..............

B. SIGNIFICANT ERROR HAS OCCURRED

WHICH REQUIRES CORRECTION.............

RELIEF

APPEN

The Court Decision Challenges the Integrity

of the Technician’s Program................

No Trial on the Merits has been Allowed ..

The Decision Defeats the Very Purpose of

eee

The Court’s Ruling Supports an Invalid Reg-

ene

EE Ee ee ee ae ee ee ae oe ae er ee oe er ee er er es er oe er

eck eececcseseces App. 1

TABLE OF AUTHORITIES

Page

CASES

Bollen v. National Guard Bureau, 449 F. Supp. 343

OOF OR chao ssc es Nel oo eae ae kee ies 19, 20

Cafeteria and Restaurant Workers Union v. McElroy,

367 U.S. 886, 81 S. Ct. 1743, 6 L.Ed.2d 1230

to) A ee ree Perr ee ewe ee en. Ter Emr ery 19

Chappell v. Wallace, 462 U.S. 296 (1983).............. 24

Christoffersen v. U.S., 230 Ct. Cl. 998, 1004 (1982)

RODS cccr cay dan cass sek ee eea een CaN Ree Re ees 21

Gaston v. U.S., 34 A.2d 353 (N.Y.D.C. Mun. App.

SES), COVE. MAO Dee TID, FOR as ok oan can ca wies Ses 6

Mindes v. Seaman, 453 F.2d 197 (5th Cir. 1971)

Re ee hea ree EO POE FREER A RS i, 20, 21, 22, 24

Muhammad v. Sec. of Army, 770 F.2d 1494, 1495 (9th

CE SEE as os a a eee eee ere tak ae) 22

Proprietors Ins. Co. v. U.S., 688 F.2d 687, 689 (9th

Cae. Tie Me Ty BEd ss evan eae nese cas 8

Sebra v. Neville, 801 F.2d 1135 (9th Cir., 1986) ....... 22

Stark v. Wickerd, 321 U.S. 266 (1965)... ..:226...5..5. 25

Tennessee v. Dunlap, 426 U.S. 312 (1976) ............. 23

CONSTITUTIONAL PROVISIONS seats

Fi PETTERS TCE TERETE CLEC eee LEY ay Ae |

Sere eee ee Ee ee ee ee Oe rere 2, 24

AMenamMent ALV oo. ec heise cece ctneve ce vccswaee ss 3, 24

TABLE OF AUTHORITIES - Continued

Page

STATUTES

OBS ee bi er rrr er errr rrr re a

Bik Seam Yo Oe ere rere ewe rey ee 6, 11

a, es See Fe) Oh ee eee eS 11

Oe a Ta 2 a ere merrier et 11

SR Ee eee Eo Pr rere rr re awe rer en ee re 11

Wee Sas Oe UD hoy ce ckacnawaan ces wee cv aneeae eens 11

at” aie De... > aR rere gare saree a ee irar ery e meriarira ) 21

Rae ee a acs ah oe pe ee Ly 22

<a” oa bt eer rere rerna a Neen eee et 2

Be Al ee POE ea Pel ck Da aku eek be eee eee 4

Be ee Fs aN ax pin eae a ea ee ae 4

De eh ae es cE CS CRC ee 5

eta! PERS 5 a we Ee 8 ke RA EI 21

De Mn ee PR ewes lho ase eee 11

Bee Le BURRS ga occas Vine han penne Ck eee eNen 6

A Ge aa |: Seer en er rarer re ene mee tan con arg 6

RR GOR | Rar ra Perr wre ay xan

aR ome |. Rarer Peary teers rere ss Ls a

1958 U.S. Cong. and Adm. News. pp. 3280-3281...... 7

TABLE OF AUTHORITIES - Continued

Page

ee nar ew cea s Cal Eo nd 7

carey hank eho 7 hake ie ae ek keene was 7

EA RED et ee ee POy eeann reeee 7

REGULATIONS

ANGR 36-05, Change B, 31 Dec. 1968........ 3, App. 8

I I ie oy in eke ea be sesecneeaees 10

Ne eee eee passim

Seas ce, fF GEN, PST oo esse ee ee se 4, 10, App. 9

oS ge A eee 10, App. 66

Petitioners respectfully pray for a writ of certiorari to

review the decision of the United States Court of Appeals

for the Ninth Circuit, entered on August 31, 1988, as tc

which a timely petition for rehearing was denied on

December 15, 1988.

OFFICIAL AND UNOFFICIAL REPORTS

OF OPINIONS BELOW

The opinion of the Court of Appeals for the Ninth

Circuit is reported at 855 F.2d 1437, and is reprinted in

Appendix 3 (App. 24-44, infra).

The opinions of the United States District Court for

the Eastern District of Washington were not published,

but are reprinted in Appendix 1 and 2 (App. 1-12 and

App. 13-23, infra).

The opinion of the United States Court of Claims is

reported at 230 Ct. Cl. 998 (1982), and is reprinted in

Appendix 6 (App. 47-55 infra).

JURISDICTION

Invoking federal jurisdiction under 42 U.S.C. § 1983,

petitioners brought suit in the Eastern District of Wash-

ington on September 23, 1981. In separate opinions filed

March 21, 1984, and October 11, 1985, the Court denied

petitioners’ Motion for Summary Judgment and granted

respondents’ Motion for Summary Judgment. (See App. 1

and App. 13, infra.)

Invoking federal jurisdiction under 28 U.S.C. § 1491,

petitioners had also brought suit in September of 1980

against the United States Government in the then U.S.

Court of Claims. On May 28, 1982, the Court denied

petitioners’ claim for lack of jurisdiction over a National

Guard member not in active service. (See App. 47, infra.)

This opinion was not appealed.

On petitioners’ appeal, the Ninth Circuit on August

31, 1988 entered an opinion affirming the ruling of the

U.S. District Court. (See App. 24, infra.) A petition for

rehearing was filed. Order denying the petition was filed

on December 15, 1988. (See App. 45, infra.) The order

affirming the District Court was filed December 27, 1988

in the United States District Court. (See App. 46, infra.)

The jurisdiction of this Court to review the judgment

of Ninth Circuit is invoked under 28 U.S.C. § 1254(1).

STATUTES INVOLVED

CONSTITUTIONAL PROVISIONS.

AMENDMENT I. Congress shall make no law

respecting an establishment of religion, or prohibit-

ing the free exercise thereof; or abridging the free-

dom of speech, or of the press; or the right of the

people peaceably to assemble, and to petition the

Government for a redress of grievances.

AMENDMENT V._ No person shall be held to answer

for a capital, or otherwise infamous crime, unless on

a presentment or indictment of a Grand Jury, except

in cases arising in the land or naval forces, or in the

Militia, when in actual service in time of War or

public danger; nor shall any person be subject for the

same offence to be twice put in jeopardy of life or

limb; nor shall be compelled in any criminal case to

be a witness against himself, nor be deprived of life,

liberty, or property, without due process of law; nor

shall private property be taken for public use, with-

out just compensation.

AMENDMENT XIV. Section 1. All persons born or

naturalized in the United States, and subject to the

jurisdiction thereof, are citizens of the United States

and of the State wherein they reside. No State shall

make or enforce any law which shall abridge the

privileges or immunities of citizens of the United

States; nor shall any State deprive any person of

life, liberty, or property, without due process of law;

nor deny to any person within its jurisdiction the

equal protection of the laws.

STATUTES.

42 U.S.C. § 1983:

Civil action for deprivation of rights. Every person who,

under color of any statute, ordinance, regulation,

custom, or usage, of any State or Territory or the

District of Columbia, subjects, or causes to be sub-

jected, any citizen of the United States or other per-

son within the jurisdiction thereof to the deprivation

of any rights, privileges, or immunities secured by

the Constitution and laws, shall be liable to the party

injured in an action at law, suit in equity, or other

proper proceeding for redress. For the purposes of

this section, any Act of Congress applicable exclu-

sively to the District of Columbia shall be considered

to be a statute of the District of Columbia.

82 Stat. 755 — National Guard Technicians Act of 1968.

(See Appendix 10, App. 71-84, infra.)

REGULATIONS.

ANGR 36-05, Change B, 31 Dec. 1968. Separation of

Air National Guard Officers. (See Appendix 8, App. 57-58,

infra.)

ANGER 36-06, 7 Oct. 1977, Selective Retention of Air

National Guard Officer Personnel. (See Appendix 9, App.

59-70, infra.)

STATEMENT OF THE CASE

The facts of this case are not challenged and are

straightforward. The situation of petitioners is similar to

approximately 45,000 other National Guard Technicians.

Appreciation of the significance of the issues raised

requires, however, an understanding of the role of the

State National Guards and how they interrelate with the

federal defense structure.

A. NATURE OF THE CASE.

Each petitioner was a high-ranking officer in the

Washington Air National Guard (WANG) and had an

exemplary service record. Each petitioner was also a

highly-rated and qualified full-time federal civil servant

in the position of an Air National Guard Technician

(Technician). 82 Stat. 755, codified in part at 32 U.S.C.

§ 709. By statute, employment as a Technician requires

membership in the National Guard. 32 U.S.C. § 709(b).

The jurisdictional conflict created by this “dual status” is

at the heart of petitioners’ case.

The State Guard organizations are responsive to the

U.S. Departments of the Army and Air Force. The

National Guard Bureau (NGB) is a statutory agency

within the Department of Defense. The NGB’s sole pur-

pose is to channel communications between the depart-

ments of the Army and Air Force and the various State

Guards. 10 U.S.C. § 3015. In 1977, the NGB published a

regulation which compels retirement of Guard officers

with more than twenty (20) years service, unless selected

for retention by a Board of Officers. ANGR 36-06 (App.

59, infra). State actions taken in reliance or this federal

regulation form the factual basis of the case.

In 1978, WANG convened its first ANGR 36-06 Board.

Each petitioner was selected for retention by the Board as

the “most qualified.” Without a stated reason, the State’s

Adjutant General, MG Collins, chose to override the deci-

sion and “involuntarily retired” each petitioner from the

WANG. The unchallenged affidavits submitted on the

motion show the basis of the decision was personal

animus for petitioners’ exercising their First Amendment

rights in an earlier incident involving the safekeeping of

nuclear weapons. MG Collins knew that his decision

would cause each petitioner to lose his federal employ-

ment as a Technician by operation of law. 32 U.S.C.

§ 709(e).

The terminations have never been reviewed by a

military or civil service tribunal. The District Court and

the Court of Claims refused to hear petitioners’ claims.

Respondents acknowledge that no remedial procedure is

available to petitioners. At issue is the judicia! tension

created between the ability to challenge a termination

which violates a basic Constitutional right and military

decision making in the National Guard, which denies any

review!

B. THE NATIONAL GUARD STRUCTURE.

Because many federal and state organizations impact

the issues in this case, it is necessary to review the

controlling statutory scheme.

1. The Federal Agency.

The National Guard is a creature of federal statute

which seeks to integrate the State/Territory Militias in

the overall defense strategy of the United States. 32

U.S.C. § 102. The Federal Government funds the person-

nel and equipment of the National Guard. The National

Guard is composed of the Army and Air National Guard.

32 U.S.C. § 101(3).

Regulations governing the Guard are prescribed by

the President as delegated to the Department of Defense.

32 U.S.C. § 110; Gaston v. U.S., 34 A.2d 353 (N.Y.D.C.

Mun. App. 1943), cert. denied 322 U.S. 764. The Secretary

of Defense directs the affairs of the Air Force and Air

Guard through the Secretary of the Air Force. 10 U.S.C.

§ 8012. If a Guardsman has been “federalized” by order

of the Air Force, he is as any other reserve member of the

Air Force. Otherwise, he is a State employee. All actions

in this case arise out of a “non-federalized” status.

As noted, to assist the Defense Department in com-

municating with the various State Guards, there has been

created a Nationa! Guard Bureau (NGB). 10 U.S.C. § 2015.

Congress did not intend a consolidation of any duties or

functions ‘in that office, including the lack of power to

adopt regulations. Its sole function is a communication

channel with the State Guard organizations. 1958 U.S.

Cong. and Adm. News, pp. 3280-3281.

2. The State Agency.

The Militia of Washington State is led by the Gover-

nor. The Adjutant General is the executive head. RCW

38.08.020. The State Militia is divided into two depart-

ments, the Army and the Air Guard, which are each

headed by the Adjutant General. RCW 38.12 015. Unless

“federalized,” the Guard is a state agency.

Officers in the “organized Militia” of the State of

Washington are eligible to remain in service until age 64,

unless terminated for cause. RCW 38.12.180. Petitioners

were not subject to any mandatory military retirement

provisions of the laws of the State of Washington. There is

no contention that petitioners were dismissed for cause.

C. THE TECHNICIAN.

Petitioners’ federal civil service position was created

by the National Guard Technicians Act of 1968. (See App.

71, infra.) Technicians provide daily supervision over

Defense Department equipment being used by the States

until it is necessary to call a Guard unit to active duty for

national purposes. There are approximately 45,000 Tech-

nicians nationwide. As stated in Report No. 1446 at page

1 of the Senate Committee on Armed Services:

In authorizing Federal employee status for the

National Guard technicians, the purpose of this legis-

lation is —

(a) To provide a retirement and fringe benefit program

which will be both uniform and adequate;

(b) To recognize the military requirements and the

State characteristics of the National Guard by provid-

ing for certain statutory administrative authority at

the State level with respect to the technician

program;

certain areas has been the subject of conflicting court

decisions, especially on the matter of whether techni-

cians are covered under the Federal Tort Claims Act

regarding third party actions against the U.S. Gov-

ernment. (Emphasis added)

(See also Proprietors Ins. Co. v. U.S., 688 F.2d 687, 689, 9th

Cir. 1982 and CR 148, p. 12).

D. THE CUSTOM.

In passing the Technician Act, Congress recognized

that Guardsmen, by operation of mandatory retirement

laws, may be forced out of the Guard and thereby lose the

ability to serve as Technicians which affects their federal

civil service retirement. To protect the Technician, the

Armed Services Committee reviewing the National Guard

Technicians Act of 1968 stated in Report No. 1446 at pp.

11-13:

The Committee would make the following comments

with respect to any involuntary retirement through

the operation of the military personnel laws. Nor-

mally, under the Reserve Officer Personnel Act a

lieutenant colonel or colonel is eliminated from an

active status at about ages 53 and 55 respectively,

since they will have completed 28 and 30 years of

Reserve service. Reserve officers who are technicians

under normal circumstances would therefore lose their

active National Guard membership and consequently be

separated from their civilian technician job because of the

requirement for a dual status. Such person would there-

fore be retired within immediate civil service annuity

under the involuntary separation process if they had

completed 25 years of service or had reached age 50

and completed 20 years of service.

The bill, however, contains a provision which will

permit the Secretaries of the Army and the Air Force

on a permissive basis to retain Reserve officers who

are technicians in an active military status until age

60, notwithstanding, the operation of the Reserve person-

nel laws which would eliminate them because of promo-

tion, passover or length of service. The committee

made this provision permissive with the result that

all Reserve technician officers could remain until age

60. It is the intention of the committee, that where the

officer is fully qualified to hold his military position

and properly performing his technician job, he

should be retained in his technician employment.

(Emphasis added)

In response to the early retirement problem and the

statute, the NGB, with approval of the Secretaries of the

Army and the Air Force, set up a program to protect

Technicians who might otherwise be affected by military

retirement laws. The policy decision was that any Techni-

cian hired prior to July 1, 1955, would be allowed to

remain as a Technician until age sixty (60). These Techni-

cians are known as “Grandfathers.” Petitioners are not

Grandfathers. All other Technicians would be allowed to

remain in the Guard until age fifty-five (55) so as to

obtain the maximum civil service retirement annuity,

with a discretionary waiver to age sixty (60). (CR 152, p.

12; CR 151, pp. 25-26) Each petitioner was retired prior to

age fifty-five (55).

The age fifty-five (55) policy was published in the

National Guard regulations as early as 1968 (App. 7,

infra). It has appeared in numerous regulations and pol-

icy letters to the Guard (CR 151, p. 19 and pp. 25-31). The

age fifty-five (55) policy remains the custom of the

National Guard Bureau concerning Technicians and it is

routinely applied. (CR 152, p. 12; CR 149, p. 15; CR 24, pp.

27-31)

E. THE REGULATION, ANGR 36-06.

1. Vitalization.

In the mid-seventies, the NGB unilaterally conceived

a new program whose purpose was to promote qualita-

tive retention of Guard officers. The program has no

statutory basis. The program is known as “Vitalization”

and was published as a NGB regulation ANGR 36-06 in

October, 1977.

The “Vitalization” concept is that after twenty (20)

years of National Guard service, you will be retired

unless recommended for retention by an appropriate

board. (ANGR 36-05 4 13a(10).) In arriving at a decision,

the Board should evaluate, but is net limited to specific

criteria, which includes, “Status with regard to Air Tech-

nician retirement eligibility.” (ANGR 36-06 { 10e.(4),

App. 66).

The Boards reviewing petitioners found each of them

to be the “most qualified” to continue in the Guard and

their positions. (CR 43)

2. How Regulation was Adopted.

By law, National Guard Technician regulations shall

be approved by the Secretary of Defense. Pub. L. 90-186,

Sec. 10 (App. 84, infra). ANGR 36-06 was not approved by

the Secretary of Defense. (CR 151, pp. 41-45)

There is a statutory procedure for the promulgation

of Guard rules and regulations. 10 U.S.C. § 8012, § 8013,

§ 8033 and § 8034; 32 U.S.C. § 101. The record shows a

draft version of ANGR 36-06 was written by the NGB.

The NGB sent it to the appropriate officers in the Air Staff

to review and approve prior to publication. The regula-

tion was reviewed by the legal officer in the Air Staff. He

commented concerning the regulation’s purported impact

on Technicians by stating:

Para 3a indicates that officers retained beyond man-

datory removal date by the Secretary of the Air Force

will be considered for selective retention. Other pro-

visions of the directive indicate that it is the Adjutant

General of the State who determines whether an indi-

vidual should be retained. We question the desirability

of permitting the Adjutant General of a State to reverse a

decision of the Secretary of the Air Force. (Emphasis

added)

The regulation was returned to the NGB with this com-

ment. The very problem brought to this Court was not

corrected. The regulation was not returned to the Air

Staff for approval after rewrite. (CR 154)

The regulation was not reviewed by the Air Reserve

Forces Policy Committee on Air National Guard and Air

Force Reserve Policy as required by 10 U.S.C. § 8033(a).

ANGR 36-06 provides no appellate review. If the

Adjutant General of a state misinterprets its intent or

improperly applies the regulation, his decision is not

reviewable.

F. MAJOR GENERAL COLLINS’ ACTION.

The Board’s findings that each petitioner was the

“most qualified” were interpreted by MG Collins to be

advisory in nature. Without authority or precedent, he

chose to “involuntarily retire.” (There are no other

instances where an Adjutant General has overridden the

decision of the ANGR 36-06 Board. CR 151, pp. 53-54 and

p. 62.)

MG Collins acknowledged he did not take into con-

sideration petitioners’ employment as Technicians or

their civil service performance files. (p. 51, Exhibit “I” to

CR 24) Contrary to the regulation, appellants’ civilian

technician position had no bearing on MG Collins’ deci-

sion. Quoting from MG Collins’ deposition, p. 40 (CR 24):

A: The entire vitalization process was to give peo-

ple the idea that they toc could succeed in the

National Guard. Success is qualifying for annu-

ity as well as moving up through the ranks to

reach whatever rank may be available.

Q: And the fact that he was serving as an Air Tech-

nician did not play any role in that decision at

all?

A: No.

You understood that once the decision was made

not to vitalize him he would lose his position as

Technician?

A: Yes.

There was a reason for each petitioner being “axed.”

It was because of petitioners’ adherence to federal regula-

tions requiring security of nuclear weapons. MG Collins

has never challenged the fact that he had as a hidden

agenda eliminating the “whistle-blowing” petitioners.

G. THE INCIDENT.

The “human reliability incident” has its genesis in

the federal Human Reliability Program (HRP). The fol-

lowing is an outline of the program and the actions of the

petitioners.

1. The Regulation.

Consistent with federal policy, the Air Force adopted

a program to ensure the highest possible standards for

reliability of personnel performing nuclear weapon

duties. (The relevant rules covering the program in place

during the actions of the petitioners are set forth in AFM

35-99, 16 May, 1974.) The underlying theory of the pro-

gram is that an individual having day-to-day contact with

personnel with access to nuclear weapons will imme-

diately restrict that access for any unsafe reason. The

rationale for such a program is readily apparent and has

been the bulwark of this nation’s nuclear weapon safety

program for many years.

The structure of the program is that each unit witha

nuclear responsibility must designate an “immediate

commander” to implement the HRP. (4 1-3(g), AFM

35-99) Individuals who have been screened for access to

nuclear systems ({ 1-6, AFM 35-99) are monitored by the

“immediate commander” for their reliability for security

and safety ({ 1-9, AFM 35-99).

Whenever the immediate commander has reason to

question the reliability of an individual identified

under the HRP, he should immediately remove the

individual from duties involving nuclear weapons. (4

1-9(c), AFM 35-99)

2. Petitioners’ Actions.

The command at issue in this case was the Air

Defense Command (ADC), which had responsibility for

control of nuclear weapons given to State Guard units. In

Guard units, the HRP was administered by Air National

Guard Technicians. The designated Technician “immedi-

ate commander” of the 116 Fighter Intercept Squadron

was petitioner Richard Main.

As a designated “immediate commander,” petitioner

Main monitored approximately 40 officer aircrews. Dur-

ing 1973, two WANG officers began to experience signifi-

cant disciplinary problems. The disciplinary problems

plus reports of their possible drug involvement caused

Mr. Main to remove these officers temporarily from

nuclear access on January 11, 1974.

As was his obligation, Mr. Main prepared the appro-

priate notifications required by the Regulation for WANG

to forward to ADC. For reasons that have never been

explained, the State Guard did not forward the notice to

ADC. Rather, the office of the State Adjutant General

intervened as a champion for the two officers. Efforts

were made by State Headquarters to have LTC Main as a

Guard Officer change his mind. LTC Main felt this would

be a dereliction of duty and refused.

———————

3. WANG’s Response.

On February 1, 1974, LTC Main’s Guard Squadron

Commander was replaced by LTC Robert Collins, who

had previously been assigned to State Headquarters. LTC

Collins was assigned specifically to have the removed

officers reinstated. LTC Collins gave LTC Main an order

in his Guard capacity to put the two officers back on

flight duty. When this was declined, LTC Collins signed

an order replacing Main as the HRP “immediate com-

mander” and assigned himself as the “immediate

commander.”

ADC, without knowledge of the temporary disqual-

ification of the officers, countermanded LTC Collins’

action assigning himself as “immediate commander”

because he was not a Technician.

The State Guard then issued orders putting the offi-

cers back on flight duty with make-up time for lost flight

hours. The investigative procedure required by the HRP

regulation (AFM 35-99) was not followed.

During the State efforts to have the officers put back

on nuclear access, ADC was not notified of the disqual-

ifications. Fortuitously, an ADC Inspector General (IG)

happened to be at Spokane International Airport on a

visit. He met with LTC Main and his assistant LTC Chris-

toffersen on March 22, 1974. This officer immediately

recognized the effort by Washington State Headquarters

to improperly act concerning nuclear weapons.

The IG returned to ADC on Saturday, March 23, 1974.

On Sunday, March 24, 1974, all nuclear weapons within

the State of Washington were “locked up” and removed

from WANG control. On Monday, March 25, 1974, an

ADC investigator was sent to WANG Headquarters. His

adverse findings concerning the actions of WANG were

reported to ADC. On April 20, 1974, ADC ordered that all

nuclear missions be removed from State Guard units

nationwide. To state the obvious, this caused much embar-

rassment to WANG and to LTC Collins, as they were the

precipitating cause of loss of an important and visible

National Guard mission.

4. Political Retaliation.

In violation of the HRP (AFM 35-99), two Board

investigations were ordered by State Headquarters con-

cerning the actions of Mr. Main and Mr. Christoffersen.

The Board sustained Mr. Main and Mr. Christoffersen.

Your petitioner, John Warn, sat on the Board supporting

Mr. Main and Mr. Christoffersen.

The unit’s previous commander_not only supported

LTC Main and LTC Christoffersen, but gave them out-

standing ratings. These ratings were then downgraded by

the reviewing superiors. The commander who supported

Mr. Main and Mr. Christoffersen is your petitioner, Wil-

liar Gibson.

In April, 1978, when it became clear LTC Collins

would get a promotion to Adjutant General under the

new admiristration of Governor Ray, he told Mr. Main he

was going to get rid of anyone who did not work with

him. He was not discreet and repeated this threat con-

cerning petitioners in the presence of a flying companion.

(CR 80, ER 60-62)

———

In June, 1978, Governor Ray did appoint LTC Collins

as State Adjutant General. In July, 1978, the now MG

Collins convened the first ANGR 36-06 Board in Washing-

ton. Despite the favorable Board action, MG Collins,

without stated reason, overrode the Board and directed

termination of each petitioner from the Guard. Automat-

ically, each plaintiff lost his Technician’s job for failure to

maintain status as a Guardsman.

5. Effect of Action on the Petitioners.

Petitioner Alfred P. Christoffersen was terminated

from his position as a Technician after 18 years of federal

civil service and two years short ot his eligibility for

lifetime civil service retirement benefits. He was a Lieu-

tenant Colonel and serving as a GS-12 Navigator in the

Technician program. Petitioner Richard F. Main was ter-

minated from his Technician position two and one-half

years short of his eligibility for lifetime benefits. He was a

Lieutenant Colonel and a GS-13 Flight Instructor in the

Technician program.

Petitioners William J. Gibson and John R. Warn were

terminated from their positions as Technicians and did

quality for a minimum retirement benefit. However, their

potential retirement payment was appreciably dimin-

ished from the amount they would have received if per-

mitted to serve to the allowed age of fifty-five (55). Warn

was a Lieutenant Colonel and a GS-13 Chief of Support

Services as a Technician. Gibson was a Colonel and GS-13

Chief of Air Operations as a Technician.

6. National Significance.

The bifurcated nature of a Technician’s position

requires responsiveness to both federal and state supe-

riors. However, in creating the position of Technician, it

could never have been a Congressional intent to allow

state patronage positions, such as an Adjutant General, to

be used to carry out a personal and vindictive agenda in

violation of basic civil rights. The necessary autonomy of

Technicians nationwide is threatened when a State Adju-

tant General can ruin one’s civil service career by making

a non-reviewable decision. This is not an ephemeral con-

cern. At stake here is the integrity of the Technician

program.

Technicians are to protect and ensure the availability

of federal defense equipment in the hands of State

Guards. It is vital that they do not fear “blowing the

whistle” on unsafe practices involving national safety

and defense. To allow the Ninth Circuit’s ruling to stand

will raise the question, “Will the federal Technician faith-

fully execute his/her duties because of fear of stepping

on the wrong state actor’s toes?” Political fortunes

change. Technicians will have no way knowing if the

State guard officer they must rebuke today will be the

Adjutant General tomorrow.

H. FEDERAL JURISDICTION.

Petitioners initially sought relief in the U.S. Court of

Claims under 28 U.S.C. § 1491. The Court of Claims

found no jurisdiction because the petitioners were not in

active federal service.

Petitioners were thus obliged to seek relief in a court

that had jurisdiction over both the “state” actors and the

“federal” actors. 42 U.S.C. § 1983 provides the jurisdic-

tional basis to challenge MG Collins’ action as a State

actor while likewise joining the federal government as a

desirable party both to interpret this far-reaching regula-

tion and provide relief to petitioners as Technicians.

,™

REASONS FOR GRANTING CERTIORARI

A. CONFLICT AMONG THE NATION’S LOWER

COURTS.

1. The Ruling in Bollen v. National Guard Bureau.

449 F, Supp. 343 (1978).

When Technician issues arise, they are often in the

context of a retaliatory act. In Bollen, supra, an officer in

the Pennsylvania National Guard was reviewed by an

ANGER 36-06 Vitalization Board and not recommended for

retention. The Court found that the reason for his termi-

nation from the Guard (and consequently his Technician’s

position) was due to an exercise of his First Amendment

rights. The court allowed a trial and made a conclusion

that a claim existed because:

As the Supreme Court said in Roth and Sindeorman,

before a property right can be taken, due process

must be afforded. Due process, of course, is an elastic

concept, Cafeteria and Restaurant Workers Union v.

McElroy, 367 U.S. 886, 895, 81 S. Ct. 1743, 6 L.Ed.2d

1230 (1961), but clearly a proceeding pursuant to

ANGR 36-06 falls far short of that required. Id. at 350.

The decision is by a District Court, but it was not

challenged on appeal by the critical defendant, the

National Guard Bureau. Like Bollen, petitioners were

exercising their First Amendment Right to speak out and

were punished. However, in its opinion below, the Ninth

Circuit has approved the procedure that denies due pro-

cess that was successfully challenged in the Third Circuit.

The court in Bollen, supra, determined that the eval-

uation of the civil rights claims must be weighed against

the test of military-type claims as set forth in Mindes v.

Seaman, 453 F.2d 197 (5th Cir. 1971). The Ninth Circuit

adopted the same test in its decision. However, on

review, the Ninth Circuit found application of the Mindes

v. Seaman test precluded review even though more

egregious facts exist in this case.

The test of Mindes v. Seaman is a two-step process to

evaluate the justicability of a challenge to a military deci-

sion. First, the Court must find an allegation of depriva-

tion of a recognized constitutional right and exhaustion

of intraservice remedies. Second, the Court balances four

factors to determine if review is appropriate.

The Ninth Circuit found petitioners met the first step,

but on balance of the second step, review was not war-

ranted. Clearly, the lower courts need guidance on the

applicability cf the Mindes v. Seaman test to the claims of

State Guardsmen and if it is applicable what is the scope

of the tests’ criteria. This is an important federal question

addressed by various states, but not by this Court. It

should be addressed.

2. Conflict with the Court of Claims.

In applying the Mindes v. Seaman test, the Ninth

Circuit Court’s view on exhaustion is not clear. The opin-

ion suggests that petitioners may find partial relief in the

Board for Correction of Military Records. If so, the Court

misapprehends the role of the Board. The Board can

review and correct military records to reflect credible

service in the recognized Guard. 10 U.S.C. § 1552. How-

ever, the Board cannot rule on MG Collins’ arbitrary

reversal of the retention Board’s decision, and certainly

the Board has no authority over Technician civil servants.

The conflict in decisions arises because any challenge

to a Board ruling would be before the United States

Claims Court. 28 U.S.C. § 1491. The Court of Claims has

ruled concerning your petitioners in Christoffersen v. U.S.,

230 Ct. Cl. 998, 1004 (1982) App. 55, infra, that:

In the final analysis, there is no theory available to

plaintiffs which would permit recovery in this court

consistent with our holding in Gnagy. As in Gnagy,

plaintiffs were terminated from their technician posi-

tions due to the loss of their military positions in the

NG. Such termination was mandated by statute. 32

U.S.C. § 709(e)(1). Any claim of illegality resulting

from plaintiffs’ termination, therefore, must by neces-

sity turn on plaintiffs’ loss of their military NG posi-

tions. Since we have previously stated that a military

member of the NG, not in active federal service, is a

state employee, plaintiffs have no basis for recovery

of monetary damages against the United States in

these circumstances. Even if it can be shown that

plaintiffs’ dismissal from the NG was improper, such

an action would not properly be before this court.

If the Court of Claims as the reviewing court has no

power to grant relief, certainly the lower administrative

tribunal lacks such power. To the extent the Ninth Circuit

Court relies upon the Board for Correction of Military

Records as a possible avenue of relief in applying the

Mindes v. Seaman test such conclusion is in error and

conflicts with the Court of Claims ruling.

3. Conflict with its Ruling in Sebra v. Neville, 801

F.2d 1135 (9th Cir., 1986).

The Ninth Circuit observed in Sebra v. Neville, supra

at 1140, that “military decisions made for “non-military

reasons” are subject to Court review. The case also

acknowledged that it would review discharge cases. (At

1141 relying upon its opinion Muhammad v. Sec. of Army,

770 F.2d 1494, 1495 (9th Cir. 1985) The case involved a

transfer decision that the Court chose not to review but

re-dedicated itself to the above guiding principles. These

principles were not followed in petitioners’ case.

Although Circuit decisions can often be resolved by a

hearing en banc, petitioners’ request for such a hearing

was denied.

B. SIGNIFICANT ERROR HAS OCCURRED WHICH

REQUIRES CORRECTION.

1. The Court Decision Challenges the Integrity of

the Technician’s Program.

Technicians provide the bulwark of day-to-day

supervision over U.S. Defense equipment while in the

control of State Guard units. Knowledge that a State

Adjutant General can terminate your livelihood at the

stroke of a pen and without an appeal, will give every

Technician pause before acting. Technicians must enforce

federal regulations, but if doing the right thing means

your job, very few people will “measure up.” The deci-

sions of a Technician become more important the more

senior the Technician. The Senior Technician is the most

vulnerable Technician, since one will not want to rock the

boat so he/she can qualify for the pension at age fifty-

five (55).

Failure to provide for an appeal mechanism or some

type of due process of an Adjutant General’s decision in

this personnel area will only foster further abuse by State

Adjutant Generals.

2. No Trial on the Merits has been Allowed.

It is an axiom of the American judicial system that

every man is entitled to his day in Court. Petitioners’

claims have been resolved by summary judgment. They

have never had a hearing on the facts. The Circuit Court

made assumptions about the nature and reason of MG

Collins’ actions and the viability of the regulation with-

out a record. Petitioners have long felt they have a claim

in search of a courtroom because:

¢ The State National Guard has no remedy.

¢ The regulation (ANGR 36-06) purports that there

is no remedy.

¢ A Technician who loses guard status must be

terminated from the civil service. Tennessee v. Dunlap, 426

U.S. 312 (1976).

¢ The Court of Claims says there is no channel to

review the claims of non-activated Guardsmen.

¢ The District Court ruled petitioners’ claims are

barred because of this Court’s ruling in Chappell v. Wal-

lace, 462 U.S. 296 (1983).

e The Ninth Circuit held the claims are not barred

by Chappell v. Wallace, but are military in nature and

should not be disturbed because of the Mindes v. Seaman

doctrine.

If this pattern of decisions stands, all Technicians

nationwide now face the intolerable choice between fol-

lowing federal regulations and losing their job, or

knuckle under to political appointees who wish to run

National Guard units for their own personal purposes.

This is simply not the due process required for our val-

ued federal employees and allowed by the Fifth and

Fourteenth Amendments. The reviewing Courts have

departed from the accepted and usual course of judicial]

proceedings.

3. The Decision Defeats the Very Purpose of Pub-

lic Service.

This Country expects and must demand the highest

quality in its public servants. A system that not only

tolerates, but fosters, “yes men” is an anathema to our

system of government and justice.

4. The Court’s Ruling Supports an Invalid

Regulation.

Sufficient evidence was presented at the time of the

motion for summary judgment to challenge the adoption

of the regulation. By refusing trial on this issue, the Court

is allowing a facially unapproved regulation to be

enforced. The regulation’s effect is in excess of its author

ity and void. Stark v. Wickard, 321 U.S. 288 (1943). The

reviewing Courts, by not recognizing this problem, have

departed from the accepted and usual course of judicia!

proceedings.

4 —

RELIEF

The Court is asked to reverse the District Court's and

the Ninth Circuit’s decision and grant summary judg-

ment on the invalidity of ANGR 36-06. In tne alternative,

the Court is asked to grant certiorari for the reasons set

forth in this Petition.

DATED this 13th day of March, 1989.

Respectfully Submitted,

CHARLES MaTTHEW ANDEKSEN

WINSTON & CASHATI

Attorneys for Petitioners

i aaa ei

App. 1

APPENDIX 1

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF WASHINGTON

ALFRED P. CHRISTOF- )

FERSEN, et al., ) NO. C-81-572-JLQ

Plaintiffs ) MEMORANDUM OPIN-

- ) ION DENYING PLAIN-

WASHINGTON STATE AIR iacay I ae her iee apes

NATIONAL GUARD, et al., ) JUDGMENT; GRANTING

Defendants )IN PART AND DENYING

JIN PART DEFENDANTS’

)MOTIONS FOR SUM-

)MARY JUDGMENT AND

) DEFENDANTS’ MOTION

) TO DISMISS THE SECOND

) AMENDED COMPLAINT

(Filed March 21, 1984)

THIS MATTER came on regularly for hearing on

plaintiffs’ Renewed Motion for Partial Summary Judg-

ment, defendants’ Renewed Motion for Summary Judg-

ment and defendants’ Motion to Dismiss the Second

Amended Complaint. Plaintiffs were represented by

Charles Matthew Anderson [sic]; defendants were repre-

sented by Robert C. Hargreaves.

Plaintiffs are four (4) former Air National Guard

officers who also held civilian positions as technicians.

National Guard membership is a condition of employ-

ment for technicians due to 32 U.S.C. § 709(b). Each

plaintiff had extensive military service. Warn and Gibson

had twenty (20) years of qualifying service for miltary

[sic] retirement pay, Christofferson eighteen years, and

Main had over seventeen years of qualifying service.

App. 2

Plaintiffs Main and Christoffersen were not eligible for a

pension; the terminations of plaintiffs Warn and Gibson

reduced their pensions. Defendant apparently does not

dispute plaintiffs’ contention that each plaintiff has per-

formed satisfactorily.

Air National Guard Regulation ANGR 36-06 (ANGR

36-06) requires that all Air National Guard commissioned

officers and warrant officers with over twenty (20) years

of qualifying service shall be reviewed annually for con-

sideration of retention or separation. ANGR 36-06 (2. The

regulation’s purpose is to ensure maintenance of combat

readiness with a maturing force. This concept is referred

to as vitalization.

An advisory vitalization board makes a recommen-

dation to the state Adjutant General (A.G.) concerning

retention, although ANGR 36-06 provides that this rec-

ommendation does not bind the A.G. The status of each

of the four plaintiffs was reviewed by the vitalization

board. Despite a recommendation that each plaintiff

should be retained, the defendant A.G., Robert Collins,

decided against retention of plaintiffs in Augusi, 1978

and so informed each plaintiff. The separation from

Guard status resulted in plaintiffs losing their civilian

Plaintiffs originally commenced suit in the Court of

Claims, however, that case was dismissed based upon the

determination that A.G. Collins was a “state” actor and

that plaintiffs’ other claims were foreclosed by existing

Court of Claims precedent

Plaintiff commenced suit in this court seeking rein-

statement, backpay, grade and pay advancement, an

award of damages for deprivation of civil rights, and a

App. 3

finding that ANGR 36-06 is a nullity. 42 U.S.C. § 1983 is

cited as a basis of jurisdiction for the damage claims.

Plaintiff’s Second Amended Complaint, which raised the

issue of whether ANGR 36-06 was properly promulgated,

cited 28 U.S.C. § 1343, 28 U.S.C. § 1331; 42 U.S.C. § 1983;

the First, Fifth, and Fourteenth Amendments to the Con-

stitution, and “the court’s inherent judicial authority to

preserve the legislative scheme created to organize the

uniformed services”, as the jurisdictional statement.

Plaintiffs’ § 1983 claim encompasses several theories,

substantive and procedural. Substantively, plaintiffs con-

tend that the actions of A.G. Collins were arbitrary and

vindictive; that Collins’ actions were inconsistent with

ANGR 36-06; and that Collins utilized his own criteria,

not those set out in ANGR 36-06. Plaintiff’s final substan-

tive challenge is that the change in National Guard status

was due to the exercise of plaintiffs’ First Amendment

rights. The procedural challenges raised by plaintiff are

that technicians are not subject to the vitalization policy

due to 32 U.S.C. § 709; that there is no statutory authority

for promulgation of ANGR 36-06; that plaintiffs had no

effective appeal rights from the non-retention decision;

and that ANGR 36-06 violates the plaintiffs’ rights to

equal protection. Plaintiffs also attack the validity of

ANGR 36-06 on the grounds that it was not prescribed by

the Secretary of the Air Force nor approved by the Secre-

tary of Defense as required by 32 U.S.C. § 709 (notes/

uncodified).

Recent opinions of the Ninth Circuit and the

Supreme Court have reinforced the inappropriateness of

judicial interference in military affairs. “Orderly govern-

ment requires that the judiciary be as scrupulous not to

App. 4

interfere with legitimate Army matters as the Army must

be scrupulous not to intervene in judicial matters.” Chap-

peil v. Wallace, __ U.S. ___, 103 S.Ct. 2362, 2366 (1983),

quoting Orloff v. Willoughby, 345 U.S. 83, 93 (1953).

The special nature of military life, the need for

unhesitating and decisive action by military officers

and equally determined responses by enlisted per-

sonnel would be undermined by a judicially created

remedy exposing officers to personal liability of

those they are charged to command.

Chappell, 103 S.Ct. at 2367.

Plaintiffs attempt to distinguish Chappell on the

ground that in this case there was no alternative military

remedy available to plaintiffs as was present in Chappell.

Plaintiffs’ argument is foreclosed by Mollnow v. Carlton,

716 F.2d 627, 630 (9th Cir. 1983), which stated “[wle find

no room in Chappell to consider the adequacy of the

intraservice remedy.” Chappell clearly stands for the prin-

ciple that a suit for damages against a military superior is

foreclosed, thus, Collins has no personal liability.

Assuming, arguendo, that plaintiffs’ action is not

totally foreclosed by the principles enunciated in Chappell

v. Wallace, supra, the court concludes the application of

the factors set forth in Mindes v. Seaman, 453 F.2d 197 (Sth

Cir. 1971) precludes review of this matter of internal

military affairs.1 Mindes allows judicial review of internal

military affairs only where there are allegations of

1 The Ninth Circuit has issued at least three opinions subse-

quent to the Chappell decision which have applied the

Mindes v. Seaman principles. Watkins v. United States Army,

721 F.2d 687 (1983) and Helm v. State of Cal., No. 82-4613

(December 20, 1983); and Gonzalez v. Department of Army,

supra.

App. 5

deprivations of constitutional rights or that the military

has acted in contravention of its own statutes or regula-

tions. The factors are: (1) the nature and strength of the

claim; (2) the potential injury to plaintiff if review is

refused; (3) the extent of interference with military func-

tions; (4) the extent to which military discretion or exper-

tise is involved. Gonzalez v. Department of Army, 718 F.2d

926, 930 (9th Cir. 1983). A prerequisite to the application

of the Mindes factors is that plaintiff must sufficiently

allege a violation of a recognized constitutional right, a

federal statute or military regulation. Gonzalez v. Depart-

ment of Army, 718 F.2d 926, 929 n.5 (9th Cir. 1983), citing

Wallace v. Chappell, 661 F.2d 729, 733-34 & n.5 (9th Cir.

1981), rev'd on other grounds, __ USS. , 1S S.Ct. 2362

(1983).

Plaintiffs have asserted that their separation from

National Guard status was due to A.G. Collins’ alleged

desire to make room for individuals more politically

acceptable to former Governor Ray. The court allowed

plaintiffs to depose former Governor Ray in an effort to

establish a factual basis for the patronage claim. Plaintiffs

now admit the absence of a factual basis for this claim.?

Plaintiffs’ additional First Amendment challenge is that

the terminations were reprisals for embarrassment

caused to A.G. Collins which resulted from the “Human

Reliability Incident”. Briefly stated, plaintiffs Chris-

toffersen and Main reported what they believed to be

erratic behavior by two subordinates to NORAD as well

as suspending these individuals from nuclear access.

Defendant Collins, then a Lieutenant Colonel, attempted

2 CR. 102 at 10.

App. 6

to rescind the suspensions by replacing plaintiff Warn as

the officer in charge of the Human Reliability Program.

The ultimate result was the permanent disqualification of

the two individuals and the removal of nuclear capability

by the Air Guard.? Subsequently, Collins was appointed

as A.G. of the Washington Air National Guard, and Col-

lins’ decision not to retain plaintiffs followed imme-

diately. The First Amendment claims of plaintiffs Warn

and Gibson are cloudy, although Gibson’s ciaim was that

he was separated for being too SAC oriented. Plaintiff

Warn’s First Amendment claim involved only the unsup-

ported allegations of political patronage which plaintiff

Warn now admits had no factual basis. In sum, the

alleged constitutional violations are tenuous.

The presence of a possible constitutional violation

does not end the analysis. The four Mindes factors must

be applied to this case. The court, while not unsympathe-

tic to plaintiffs’ claims, concludes that it would be inap-

propriate to intervene in this area of military affairs. |

recognize that the potential injury plaintiffs face if the

decision is not reviewed is substantial; the respective

plaintiffs will receive no pension or a reduced pension as

a result of their separation despite lengthy and satisfac-

tory job performance.

However, judicial interference with the decisions

against retention of plaintiffs is precisely the type of

interference in military matters which should be avoided.

As was stated in Orloff v. Willoughby, 345 U.S. 83, 93

(1953) “[jludges are not given the task of running the

Army”. The court cannot agree with plaintiffs’ contention

3 CR. 24, Ex. C at 6-8.

App. 7

that the interference which would entail from this court

reviewing this matter of internal military affairs is mini-

mal. Such a review would necessarily require this court

to determine which subordinates a commander must rely

upon. Military expertise is obviously implicated when-

ever a decision is made not to retain military personnel

and this court is unwilling to venture into this area.

Plaintiffs’ contention that 32 U.S.C. § 709 prevents

removal of a civilian technician does not withstand scru-

tiny. The crux of plaintiffs’ argument is that in light of the

legislative history of 32 U.S.C. § 709, technicians are

exempt from nonretention due to passover or length of

service.4

The cited legislative history permits the Secretary of

the Army and Air Force to retain officers despite Reserve

personnel laws; it does not compel retention. ANGR

36.05,° the efficacy of which is unchallenged here, gov-

erns administrative discharges of officers. The pertinent

* S. Rep. No. 1446, 90th Cong. 2d Sess. 12 (1968): _

The bill, however, contains a provision which will

permit the Secretaries of the Army and the Air Force

on a permissive basis to retain Reserve officers who

are technicians in an active military status until age 60,

notwithstanding the operation of the Reserve person-

nel laws which would eliminate them because of pro-

motion passover or length of service. The committee

made this provision permissive with the result that all

reserve technician officers could remain until age 60. It

is the intention of the committee, that where the officer

is fully qualified to hold his military position and

properly performing his technician job, he should be

retained in his technician employment.

> Ct. Rec. 20, Appendix A.

App. 8

subparts of ANGR 36.05 which are dispositive of plain-

tiffs’ arguments are {3(c), Table 1, 413a(6) and 13b(7).

Paragraph 3(c) defines a policy against nonconsensual

discharges for those not qualified for retirement or an

annuity in limited instances. 73(c) refers to Table 1, and

Rule 3 of Table 1 is applicable to plaintiffs. Pursuant to

that rule, only discharges for reasons set out in J 13a(6)

(mandatory promotion, no position available) and

{14b(7) (maximum years of service or maximum years in

grate) must be consensual. The basis of plaintiffs’ non-

retention was ¥913a(10), thus, plaintiffs could be involun-

tarily retired prior to age 55. By reason of the foregoing,

the defendants’ Motion for Summary Judgment on plain-

tiffs’ § 1983 claims must be granted.

Plaintiffs’ claims of procedural due process violations

are actionable only if plaintiffs have a property right or a

legitimate claim of entitlement. A legitimate claim of

entitlement must be derived from an independent source

in state or federal law. Board of Regents of State Colleges v.

Roth, 408 U.S. 564, 577 (1972). A legitimate claim of

entitlement may be based upon conduct or representa-

tions of government officials which create a mutually

explicit understanding. Doran v. Houle, Nos. 82-3445,

82-3457, and 82-3465 (9th Cir. Nov. 18, 1983); Orloff v.

Cleland, 708 F.2d 372, 377 (9th Cir. 1983).

The court finds plaintiffs have no property right or

legitimate expectancy in continued military status. Walker

v. Alexander, 569 F.2d 291 (5th Cir. 1978), Fredricks v.

Vartanian, 529 F.Supp. 264, 267 (D. Mass. 1981); aff'd, 694

App. 9

F.2d 891 (ist Cir. 1982). The legislative history cited by

plaintiffs® refers only to “grandfather” technicians and

plaintiffs admit they are not included in this category.”

The only possible basis for plaintiffs’ entitlement claim is

the Greenlief correspondence, dated April 12, 1973.® This

court disagrees with the analysis and result in Bollen v.

National Guard Bureau, 449 F.Supp. 343 (W.D. Pa. 1978).

Plaintiffs’ equal protection claim is without merit. Plain-

tiffs contend that the statutory scheme requires unifor-

mity in National Guard regulations and that as the Air

National Guard regulations were not identical to the

Army, an equal protection violation existed. Ct. Rec. 48 at

11-14. The reguiations in question were identical until

December 31, 1979. Ct. Rec. 66 at 2. Defendants are also

entitled to Summary Judgment on these claims.

Defendants have moved to dismiss the Second

Amended Complaint on the grounds of lack of subject

matter jurisdiction, lack of personal jurisdiction over the

defendants, the Eleventh Amendment and sovereign

immunity, a failure to state a claim upon which relief may

be granted, and the failure to join federal parties.? The

court is satisfied the Eleventh Amendment does not bar

prospective injunctive relief against the state for a viola-

tion of federal law. Pennhurst State School & Hospital v.

Halderman, 52 U.S.L.W. 4155, 4159 (January 23, 1984).

6 Ct. Rec. 48 at 12.

Ct. Rec. 112 at 25.

Ct. Rec. 110, Ex. 2.

9 Ct. Rec. 93. Defendant also asserted official immunity on

behalf of defendant Collins, however, this issue is moot in

light of Chappell v. Wallace, supra. Defendants’ contention

as to lack of personal jurisdiction is included in the sover-

eign immunity chalienge. Ct. Rec. 94 at 6 n.5.

oe N

App. 10

Defendant contends the Second Amended Complaint

does not sufficiently state a jurisdictional basis for the

challenge to ANGR 36-06. As defendants had requested

and were granted a stay as to further discovery as to the

validity of ANGR 36-06, plaintiffs’ pleadings as to the

validity of the challenged regulation were based upon

information and belief. If there was no statutory author-

ity for ANGR 36-06, or if it was not properly promulgated

the regulation, of course, would be invalid, as would be

any action taken pursuant to the invalid regulation. This

court has the power to determine whether an agency has

exceeded its statutory authority. Stark v. Wickard, 321 U.S.

288, 310 (1943). Defendants’ contention that this action

should be dismissed for failing to state a claim is without

merit. Although defendant Collins may not be held liable

due to Chappell v. Wallace, supra, injunctive relief is possi-

ble as to the state. Further, the federal defendants could

provide the requested relief if plaintiffs successfully chal-

lenge the promulgation of the regulation or it is deter-

mined no statutory authority existed for ANGR 36-06.

Defendants have moved to dismiss the Second

Amended Complaint based upon the failure to join cer-

tain federal parties as defendants. An application of

Fed.R.Civ.P. 19, as discussed in Bakia v. County of Los

Angeles, 687 F.2d 299, 301 (9th Cir. 1982) and Northrop

Corp. v. McDonnell Douglas Corp., 705 F.2d 1030, 1042-44

(9th Cir. 1983), cert. denied, 104 S. Ct. 156 (1983) requires

joinder of the federal defendants to ensure that the fed-

eral government’s interests are protected. The govern-

ment’s interests in a uniform manning policy would be

seriously undermined if it was determined that ANGR

36-06 was improperly promulgated. The court concludes

App. 11

that the federal parties should be joined, if feasible, pur-

suant to Fed.R.Civ.P. 19(a).

Step 2 of the joinder analysis requires the application

of four factors to determine whether the action should go

on without the absent party. ANGR 36-06 is national in

scope; it is applicable in all fifty states. Regardless of the

ultimate outcome of the challenge to the regulation’s

efficacy, similar challenges may be expected. Addi-

tionally, the interests of the state in upholding the regula-

tion are not identical; the potential liability of the state

defendants is much narrower in light of the Eleventh

Amendment. As the federal actors promulgated ANGR

36-06, the state parties would not be able to provide

plaintiffs the entire relief sought.

It should be noted that the current status of the

litigation is markedly different than that prevailing when

defendants’ initial Motion to Dismiss was denied. At that

time, the predominant theme of plaintiffs’ claim was

§ 1983. Plaintiffs’ § 1983 claims have been disposed of

by this Opinion, thus, plaintiffs’ remaining challenge is to

the efficacy of ANGR 36-06.

Based upon the foregoing IT IS HEREBY ORDERED

as follows:

1. Plaintiffs’ Motion for Partial Summary Judgment

is DENIED.

2. Defendants’ Motion for Summary Judgment on

plaintiffs’ § 1983 and constitutional claims is GRANTED.

3. Defendants’ Motion to Dismiss the Second

Amended Complaint is DENIED.

App. 12

4. Plaintiff if directed to join the necessary federal

parties as defendants on plaintiffs’ claims as to the effi-

cacy of ANGR 36-06. FAILURE TO JOIN SUCH DEFEN-

DANTS WITHIN THIRTY (30) DAYS FROM THE DATE

OF THIS ORDER SHALL RESULT IN DISMISSAL OF

THIS ACTION.

IT IS SO ORDERED. The Clerk is directed to enter

this Order and forward copies to counsel.

DATED this 21st day of March, 1984.

/s/ Justin L. Quackenbush

JUSTIN L. QUACKENBUSH

United States District Judge

App. 13

APPENDIX 2

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF WASHINGTON

ALFRED P. CHRISTOF-

FERSON, et al., ORDER GRANTING

Plaintiffs, DEFENDANTS’

) NO. C-81-572-JLQ

)

VS. ) MOTIONS FOR SUM-

)

MARY JUDGMENT AND

THE WASHINGTON

DENYING PLAINTIFFS’

STATE AIR NATIONAL MOTION FOR SUMMARY

GUARD, et al.,

JUDGMENT L

Defendants. (Filed October 11, 1985)

Plaintiffs are four former Air National Guard officers

who also held civilian positions as technicians. Each

plaintiff had extensive military service which was per-

formed satisfactorily. At the crux of this action is Air

National Guard Regulation ANGR 36-06 (ANGR 36-06)

which mandates Air National Guard officers w h over

twenty years qualifying service be reviewed annually for

consideration of retention. Known as the “vitalization”

concept, the policy underlying ANGR 36-06 is to ensure

maintenance of combat readiness with a maturing force.

Under the regulation, an advisory vitalization board

makes a non-binding recommendation to the State Adju-

tant General (A. G.). Despite a recommendation for ren-

tention the defendant A. G. Collins directed separation

from Guard status which necessarily resulted in loss of

plaintiffs’ civilian technician positions. There have been

no other instances where an A. G. has overriden [sic] the

decision of the vitalization board to involuntarily non-

retain officers.

App. 14

In this Court’s previous Memorandum and Order, Ct.

Rec. 113, all issues except the validity of ANGR 36-06,

were addressed following extensive discovery, briefing,

and argument, and were resolved in favor of defendants.

This last question is now before the court on cross-

motions for summary judgment. Plaintiffs contend ANGR

36-06 has no legal basis and was not properly promul-

gated under the relevant statutory or regulatory

procedure.

The facts are undisputed:

Air National Guard regulations affecting personnel

matters are prepared within the Air Directorate of the

National Guard Bureau (Military Personnel Policy

Branch, Manpower & Personnel Division) by the office of

primary responsibility (OPR). These regulations are “co-

ordinated” within the Bureau. Once internal co-ordina-

tion has been secured, the draft is sent by the Air Direc-

torate through the Chief, National Guard Bureau, to the

Bureau’s Office of Administrative Services (NGB-DAE).

NGB-DAE then forwards the draft to Headquarters

United States Air Force (HQ USAF) OPR, based upon

subject matter. The HQ USAF OPR replies to NGB-DAE,

generally by letter, in one of four ways: (1) concurring

without comment; (2) nonconcurring with stated reasons;

(3) concurring with comments and/or proposed revi-

sions, or (4) requesting specific changes be made and

resubmitted for concurrence.

If HQ USAF OPR nonconcurs, such nonconcurrence

is expressed in the reply letter. Then negotiation is con-

ducted and a second letter would be obtained evidencing

concurrence to the revised draft. Concurrence by HQ

App. 15

USAF OPR signifies approval of the Air Force Chief of

Staff.

After the required concurrence is received, NGB-

DAE prepares a Request for Issuance of Publication,

memorializing the administrative requirements for issu-

ance. This form is signed by the Chief of the National

Guard Bureau thus signifying approval of the administra-

tive processing and authorizing publication. The regula-

tion is then published by HQ USAF effective on the date

specified by the cover page of the published document.

All ANG regulations are authorized for publication by

order of the Secretary of the Air Force. Before this forma!

coordination and concurrence is sought, extensive infor-

mal discussions have usually led to an informal

concurrence.

As described, a draft of ANGR 36-06 was submitted

to HQ USAF OPR for comments and/or concurrence to

be returned no later than August 5, 1977. On August 2,

1977, Lieutenant Colonel Donald Post, operating as the

Chief of Separation & Retirement Branch of the Personnel

& Plans Directorate in the Air Staff, replied by letter as

follows:

We have reviewed the draft manuscript of proposed

ANGR 36-06 attached to subject letter and offer the

following comments .. .

a... . Since the proceedings or results of the

board should not be divulged, an oath adminis-

tered by the president of the board to the

Recorder would also be appropriate.

b. [use the term “Advisory Board” only rather

than referring to “Selective Retention Board” in

some instances. ]

App. 16

In addition, on August 4, 1977, Mr. Hopson [sic], on the

legal staff of the Chief’s office, replied in writing to NGB-

DAE:

The proposed revisions of the referenced directive

have been reviewed and the following comments are

submitted . . .

[Eight items including:]

b. ... [I]t is the Adjutant General of the State

who determines whether an individual should be

retained. We question the desirability of permit-

ting the Adjutant General of a state to reverse a

decision of the Secretary of the Air Force.

On August 17, 1977, Chief, NGB, Major General

LaVern E. Weber signed the publication authorization

form with issuance of the regulation effective October 7,

1977. As such, it superceded a prior version of the regula-

tion dated January 26, 1976, and continued until it was

reissued, effective January 1, 1984, under the designation

ANGER 35-06.!

Statutory Authority

iaintiffs contend the promulgation of ANGR 36-05,

the enabling regulation for ANGR 36-06, as well as

ANGR 36-06 itself, was beyond the authority of the NGB.

1 ANGR 35-06, unlike the challenged regulation, provides

for an appellate mechanism and review. It is undisputed

the new regulation was promulgated because of the con-

cern by the Secretary of the Air Force about litigation and

the fact an appeal existed for enlisted persons but not for

officers.

——— rll we

App. 17

It is urged there is no statutory basis for “vitalization.”

Instead, claim plaintiffs, Congress specifically legislated

with respect to mandatory retirement of officers in the

Untied [sic] States Reserve by way of the Reserve Officer

Personnel Act of 1954 (ROPA). 68 Stat. 1147. Congress, it

is argued, clearly legislated in 10 U.S.C. § 8848(c) and

§ 8851(c)? that civil technicians may not be removed from

2-10 USC § 8848(c) provides:

Notwithstanding subsections (a) and (b) of this sec-

tion, the Secretary of the Air Force may authorize

the retention in an active status until age 60 of any

officer of the Air National Guard of the United

States who would otherwise be removed from an

active status under this section and who is employed

as a technician under section 709 of Title 32, United

States Code [32 USC § 709], in a position for which

Air Natinoal [sic] Guard membership is prescribed

by the Secretary. (Amended December 12, 1980, P.L.

96-513, 94 Stat. 2935 to delete “United States Code”

after “title 32” and “of this section” following “(b)”).

10 USC § 8851(c) provides:

Notwithstanding subsections (a) and (b) of this sec-

tion, the Secretary of the the [sic] Air Force may

authorize the retention in an active status until age

60 of any officer of the Air National Guard of the

United States who would otherwise be removed

from an active status under this section and who is

employed as a technician under section 709 of Title

32, United States Code [32 USCS § 709], in a position

for which Air National Guard membership is pre-

scribed by the Secretary. (Amended 1980 and 1984,

to delete, respectively “United States Code” after

“title 32” and “of this section” following “(b)”.)

App. 18

service until age 60. Thus, the argument goes, ANGR

36-06 is without force and effect because it is contrary to

specifically manifested congressional intent. See Boske v.

Comingore, 177 U.S. 459 (1900); Edwards v. Madigan, 281

F.2d 73 (9th Cir. 1960) (military regulations are presump-

tively valid unless arbitrary or unreasonable or plainly

inconsistent with the law). However, this ccurt has previ-

ously ruled that Sections 8848(c) and 8851(c) are not

mandatory. Ct. Rec. 113 at 8 and note 4. While the legisla-

tive history reveals the committee’s intention that fully

qualified technicians “should” be retained, S. Rep. No.

1446, 90th Cong. 2d Sess. 12 (1968), the unambiguous

language of the relevant statutes make retention permis-

sive. See note 2. Nor have counsel otherwise cited statu-

tory language or legislative history which would lead to

the conclusion that Congress, by implication, intended to

reserve this entire area of military retirement rulemaking

to itself.

Approval by Secretary of Defense.

Next, plaintiffs question the validity of the regulation

because the Secretary of Defense did not approve ANGR

36-06. Reliance is placed upon Sec. 10 of the National

Guard Technicians Act (NGTA) of 1968, P. L. 90-486, 82

Stat. 760 which provides:

To be distinguished is the legislative history discussing

those reserve officers who were “grandfathered” into

retention by reason of civilian employment before July 1,

1955. See 1955 U.S. Code & Cong. Admin. News at

2255-2256. Plaintiffs are not within the grandfathered class.

App. 19

Regulations prescribed by the Secretary of the Army

and Secretary of the Air Force under this Act shall be

approved by the Secretary of Defense and shall, so

far as practicable, be uniform.

Emphasis added.

Defendants counter that ANGR 36-06 is not a “tech-

nicians” regulation and that despite the fact it can affect

technicians, the same may be said of any NGB regulation.

Instead, argue defendants, the challenged promulgation

is a “military” officer “personnel” regulation. As such,

the Secretary of Defense need not approve it.

The court agrees that ANGR 36-06 must be charac-

terized as a military personnel regulation rather than a

technician regulation. It is true that invocation of the rule

to separate Guard Officers can impact a federally recog-

nized technician, since the latter status is dependent

upon the former. 32 U.S.C. § 709(e)(1). However, the class

of military officers affected by the regulations is much

broader than the included sub-class of technicians. the

plain language, quoted above, and legislative history of

the NGTA does not lend itself to an interpretation that

regulations touching technicians as a sub-class in a larger,

more general classification require approval from the Sec-

retary of Defense. Consequently, only approval of the

Secretary of the Air Force was required.

Approval by the Secretary of Air Force.

Even so, plaintiffs next contend, the Secretary of the

Air Force did not approve the regulation. The premise is

two-fold. First, plaintiffs maintain the Secretary of the Air

Force has never delegated to the Chief of Staff statutory

authority for approving regulations. However, a review

of the Order from the Secretary of the Air Force, Exh. I to

i eee

App. 20

Ct. Rec. 154, against the background of military custom

and practice demonstrates an appropriate delegation to

the Chief of Staff. See, also, 10 U.S.C. § 8032.4 In addition,

the Department of Air Force is a large and complex

organization responsible for providing much of the secur-

ity of the country. Those possessing high positions of

responsibility such as the Chief of Staff and Secretary

must necessarily rely and delegate to subordinate levels

of staff.

4 10 U.S.C. § 8032 provides:

(a) The Air Staff shall furnish professional assistance

to the Secretary, the Under Secretary, and the Assis-

tant Secretaries of the Air Force, and the Chief of

Staff.

(b) The Air Staff shall —

(1) prepare for such employment of the Air Force,

and for such recruiting, organizing, supplying,

equipping, training, serving, mobilizing, and

demobilizing of the Air Force, as will assist in the

execution of any power, duty, or function of the

Secretary or the Chief of Staff;

(2) investigate and repor. upon the efficiency of

the Air Force and its preparation for military

operations;

(3) prepare detailed instructions for the execution

of those plans and instructions;

(4) act as agent of the Secretary and the Chief of

Staff in coordinating the action of all organizations

of the Department of the Air Force; and

(5) perform such other duties, not otherwise

assigned by law, as may be prescribed by the

Secretary.

—

App. 21

Lastly, plaintiffs submit that given a lawful delega-

tion of authority, the Chief of Staff in this case did not

concur with the proposed draft of ANGR 36-06. Since

neither the Guard Bureau nor the Chief of Staff took

additional steps following the alleged nonconcurrence,

plaintiffs conclude there has been no approval of the

regulation used to terminate plaintiffs.

Initially, defendants did not argue that either the Post

letter or the Hobson letter, without the other, was suffi-

cient to manifest a concurrence of the proposed rule.

Rather, defendants conceded both letters were respon-

sive, but maintained both were manifestations of obvious

concurrence. It follows that if one of the two letters was a

nonconcurrence, as a matter of accepted military policy

and practice, the promulgation was not properly

approved and is therefore invalid. However, through its

supplemental brief, the United States newly argues that

approval from the Judge Advocate General was not

required for publication and implementation of the regu-

lation since that responsibility lies solely with the office

of primary responsibility. The distinction is an important

one for this court concludes that even under the amor-

phous military tradition and custom of concurring by

failing to nonconcur, the Hopson [sic] letter, written after

the Post letter, is not susceptible to “obvious” interpreta-

tion as argued by defendants.

As elaborated in the Wilson declaration, HQ USAF

OPR replies to the request for concurrence and/or com-

ments in one of four ways: (1) concurring without com-

ment; (2) nonconcurring with stated reasons; (3)

concurring with comments and/or proposed revisions; or

(4) requesting specific changes be made and resubmitted

for concurrence. In his deposition, General Weber testi-

fied that the Post letter stated concurrence although the

App. 22

word is not used in the correspondence, by “not saying

nonconcurrence.” General Weber emphasized that failing

to say nonconcurrence, under the military custom of neg-

ative implication, “implie[s]” concurrence. The court

must agree, with this custom in mind, that the Post letter

should be construed as a concurrence. First, Colonel Post

stated he “offer[ed]” his comments. The term “offer”

signifies a suggestive tone. Next, the two revisions

offered were not substantive ones. Thus, a concurrence is

easily inferred from the Post letter.

However, General Weber did not examine the Hob-

son letter in testifying by deposition. In fact, defendants

did not surrender the Hobson letter, despite plaintiffs’

early discovery request, until after General Weber was

deposed. General Weber did not testify that the word

“nonconcur” must appear in relevant correspondence.

Hence, the matter becomes a question of interpretation of

the Hobson letter. In contrast to the Post letter, Mr. Hob-

son “submitted” his “comments” to the “proposed revi-

sions.” This language, unlike Colonel Post’s “offer”, is

declaratory rather than suggestive. Next, in addition to

seven other comments, Mr. Hobson states “we question

the desirability of permitting the Adjutant General of a

state to reverse a decision of the Secretary of the Air

Force.” This comment constitutes significant substantive

questioning. While the interpretation is debatable under

normal rules of construction, due to the self-serving mili-

tary custom and practice of nonspecific written communi-

cation, the court, reluctantly, is obliged to conclude Mr.

Hobson’s letter is a concurrence of the second species.

Having so stated, it is unnecessary to determine whether

AFR 45-17 may be read to authorize singular concurrence

from the Chief’s office regardless of how strongly its

legal staff disagrees with the propriety of a regulation.

App. 23

It is additionally noted, as emphasized in this court’s

earlier Memorandum and Order, Ct. Rec. 113 at 4, that

recent Supreme Court and Ninth Circuit precedent have

reinforced the inappropriateness of judicial interference

in military affairs. Chappell v. Wallace, __ us... , 43

S.Ct. 2366 (1983); Trerice v. Pedersen, ___ F.2d __, slip op.

No. 84-5789 (9th Cir. Aug. 28, 1985). Appellate courts

have gone so far as to interpret Chappell as foreclosing

“consider[ation of] the adequacy of the intraservice rem-

edy.” Mollnow v. Carlton, 716 F.2d 627, 630 (9th Cir. 1983).

it is abundantly clear that trial courts “are bound by the

law of their own circuit” regardless of “how egregious in

error they may feel their own circuit to be.” Hasbrouck v.

Texaco Co., 663 F.2d 930, 933 (9th Cir.), cert. denied, 459

U.S. 828 (1982).

Because plaintiffs’ equal protection and due process

arguments were addressed in the court’s earlier Mem-

orandum and Order, Ct. Rec. 113, those premises will not

be reconsidered here. Defendants’ Motions for Summary

Judgment are GRANTED. Plaintiffs’ Motion is DENIED.

The complaint and claims therein are therefore DIS-

MISSED WITH PREJUDICE, and the Clerk shall enter

JUDGMENT accordingly.

IT IS SO ORDERED. The Clerk is directed to enter

this Order and forward copies to counsel.

DATED this 11th day of October, 1985.

/s/ Justin L. Quackenbush

JUSTIN L. QUACKENBUSH

United States District Judge

App. 24

APPENDIX 3

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

ALFRED P. CHRISTOFFERSEN;

WiLuraM J. Gipson; RIcHarD F.

—

Main; and JOHN R. Warn, No. 85-4315

Plaintiffs-Appellants, D.C. No.

V. C81-572-JLO

WASHINGTON STATE AIR NATIONAL OPINION

GUARD; THE ADJUTANT GENERAL OF

WASHINGTON STATE, Major GENERAL

GeorGce Coates; Major GENERAL

Rosert J. CoLtins; THE WASHINGTON

STATE TREASURER, ROBERT S. O’BRIEN,

Defendants-Appellees.

Appeal from the United States District Court for the

Eastern District of Washington Justin L. Quackenbush,

District Judge, Presiding

Argued and Submitted

August 7, 1986 — Seattle, Washington

Filed August 31, 1988

Before: Cecil F. Poole, William A. Norris and Robert R.

Beezer, Circuit Judges.

a ee a ee

Opinion by Judge Poole

COUNSEL

Charles Matthew Anderson, Winston & Cashatt, Spokane,

Washington, for the plaintiffs-appellants.

John E. Lamp, United States Attorney, and James R.

Shively, Assistant United States Attorney, Spokane, Wash-

ington; Lt. Col. Guy J. Sternal, Staff Judge Advocate,

App. 25

USAF, McCord AFB, Washington, D.C.; Ceil Holuk, Assis-

tant Attorney General, Olympia, Washington, for the

defendants-appellees.

OPINION

POOLE, Circuit Judge:

Appellants are four former officers and civilian tech-

nicians of the Washington State Air National Guard (the

Guard, or Washington Guard) who were selected for

“nonretention” in the Guard by state Adjutant General

Robert Collins pursuant to Air National Guard Regula-

tion (ANGR) 36-06. They were subsequently terminated

as federal civil servants. Appellants brought this action

under 42 U.S.C. § 1983 against General Collins and the

Guard claiming that the decisions not to retain them were

based on personal animus and violated their rights to

freedom of speech and procedural due process. Appel-

lants also argued that ANGR 36-06 is not authorized by

statute, was improperly promulgated, and denies them

due process and equal protection. Pursuant to a court

order, appellants joined the United States, the Depart-

ment of Defense, the Department of the Air Force, and

the National Guard Bureau (collectively “federal appel-

lees”) to answer the challenge to the regulations.

The district court granted summary judgment in

favor of General Collins and the Guard, holding that

Chappell v. Wallace, 462 U.S. 296 (1983), precludes a suit

for damages against a military commander and that

appellants’ claims are also barred by the military non-

interference doctrine. After the federal appellees were

joined, the district court also granted summary judgment

attic eeneniieeennntle

App. 26

in their favor, rejecting appellants’ challenges to the regu-

lation. We affirm.

FACTS

Each appellant had a dual status as an officer of the

Guard and as a federal civilian technician. By statute,

each was required to maintain membership in the Guard

as a condition for retaining his civil service position. 32

U.S.C. § 709(b). Each appellant had completed over 20

years of military service in July 1978, and therefore had

qualified for a military retirement pension at age 60. 10

U.S.C. § 1331(a).

Under ANGR 36-06, 7 2, all Air National Guard

officers with over 20 years of qualifying military service

must be reviewed annually for consideration of retention

in, or separation from, their state National Guard. This

regulation was developed by the National Guard Bureau,

an organization which serves as the channel of communi-

cation between the Department of Defense and the var-

ious state National Guards, 10 U.S.C. § 3040, and was

issued by order of the Secretary of the Air Force. The

regulation establishes a “Vitalization Program” for the

state National Guards which is designed to ensure com-

bat readiness and inhibit stagnation in the senior grades

by providing for the advancement of qualified young

officers into positions of greater responsibility. ANGR

36-06, ¥ 2; see Penagaricano v. Llenza, 747 F.2d 55, 56 (1st

Cir. 1984).

Under the Vitalization Program, an Advisory Board

appointed by the state Adjutant General annually reviews

every eligible officer to “evaluat[e] the future benefits

App. 27

that can be expected to accrue to the Air National Guard

from [his] continued service.” ANGR 36-06, ¥ 10d; see id.

4 2a. The regulation lists a number of criteria, related

both to the qualifications of the individual and the needs

of the Air National Guard, to be considered by the Advi-

sory Board in recommending retention or separation of

each officer. Id. J 10e. One factor is the officer’s status

with regard to technician retirement eligibility. Id. ]

10e(4). The state Adjutant General is not bound by recom-

mendations of the Advisory Board and may approve or

disapprove any specific recommendation. Id. § 11b(1).

The gravamen of appellants’ complaint is that they

were the victims of a vindictive discharge motivated by

their participation in the so-called “human reliability inci-

dent.” According to appellants, appellant Main, who was

then the immediate commander in charge of implement-

ing a nuclear weapons safety program known as the

Human Reliability Program, decided upon a temporary

disqualification from nuclear missions of two officers

whom he suspected of drug trafficking. Notice of this

action was prepared by Main, but not forwarded by the

Guard to the Air Defense Command (ADC) as required.

When Main resisted attempts by Washington Guard

Headquarters to have him change his mind, Collins was

installed as Main’s Squadron Commander. Collins

assigned himself to Main’s position as immediate com-

mander, but ADC countermanded the assignment

because Collins was not a federal employee. The Guard

then ordered Main to restore the disqualified officers to

flight duty with make-up time for lost flight hours.

Meanwhile, ADC was unaware of Main’s temporary

disqualification of the two officers. On March 22, 1974,

App. 28

Main and his assistant, appellant Christoffersen, told an

ADC Inspector General of the officers’ disqualification

and of the Washington Guard’s efforts to compel their

reinstatement. On March 24, 1974, all nuclear weapons

within Washington State were removed from Washington

Guard control. On April 20, 1974, all nuclear missions

were removed from National Guard units nationwide.

The Guard ordered investigations of the actions

taken by Main and Christoffersen regarding the officers’

disqualification. Appellant John Warn sat on the investi-

gatory boards which sustained Main and Christoffersen.

Appellant William Gibson, Unit commander, supported

Main and Christoffersen, and gave them outstanding

ratings.

In 1978, an Advisory Board convened to evaluate

officers in the Washington Guard and specifically selected

each appellant for retention. However, General Collins,

now Adjutant General of the Guard, as the reviewing

officer, declined to adopt the Advisory Board’s recom-

mendations and, instead, approved nonretention of all

appellants. As a result of Collins’ action, the National

Guard Bureau withdrew federal recognition from them

and each appellant lost his civilian federal technician

position. 32 U.S.C. § 709(e); ANGR 36-06, {4 11b(2),

11c(1). Appellants were discharged from the Washington

Guard upon withdrawal of their federal recognition and

were transferred to the inactive United States Air Force

Reserve. 10 U.S.C. § 8352(b); ANGR 36-06, 7 11c. They

were advised in writing that Collins’ decisions were

nonreviewable.

App. 29

Collins gave no reasons for nonretention, but later

acknowledged that appellants’ performance as techni-

cians was not a consideration. Appellants believe Collins

was motivated by personal vindictiveness based on the

human reliability incident that occurred before he was

appointed state Adjutant General.

PROCEEDINGS BELOW

Appellants originally sued in the United States Court

of Claims for reinstatement, back pay, benefits, and other

damages based on their wrongful termination as civilian

technicians. The court granted summary judgment for the

United States holding that, because Guardsmen not in

active federal service are state employees, appellants

failed to state a claim on which relief could be granted.

Christoffersen v. United States, 230 Ct. Cl. 998 (1982).

Appellants then pursued their claims in the district

court under 42 U.S.C. § 1983 against the Washington

Guard and Collins. Appellants alleged that they were

“involuntarily retired” in violation of their rights under

the First Amendment and to procedural due process.

Appellants also challenged the validity of ANGR 36-06.

On March 31, 1984, the district court granted the state

appellees’ motion for summary judgment on the issue of

liability under section 1983. However, the court refused

to dismiss the action and directed appellants to join what-

ever federal parties would be necessary to resolve the

challenges to ANGR 36-06. Accordingly, the federal

appellees were joined. On October 11, 1985, after addi-

tional discovery, the district court granted the govern-

ment’s motion for summary judgment, ruling that ANGR

App. 30

36-06 had been properly promulgated and applied. This

appeal followed. We heard oral argument on August 7,

1986. On December 2, 1986, submission of this case was

vacated, and we ordered all parties to submit supplemen-

tal briefs focusing on two questions: (1) whether the

appellants’ participation in the so-called “human

reliability incident” involved the exercise of public

authority, as distinguished from “whistleblowing;” and

(2) the extent to which the First Amendment protects, as

speech, the exercise of public authority by a government

official. The parties made their submissions which we

considered. On January 5, 1987 we ordered the case

resubmitted, and we now affirm the judgments of the

district court.

DISCUSSION

A district court order granting summary judgment is

reviewed de novo. Sebra v. Neville, 801 F.2d 1135, 1138 (9th

Cir. 1986). This court need only decide whether there are

genuine issues of material fact, whether the substantive

law was properly applied, and whether the proponents of

the motion were entitled to judgment. Id

In determining whether a civilian court should

review a serviceman’s allegation of deprivation of consti-

tutional rights by the military, this Circuit has adopted

the multi-factored analysis first outlined in Mindes v.

Seaman, 453 F.2d 197 (5th Cir. 1971). Sebra v. Neville, supra,

801 F.2d at 1141; Khalsa v. Weinberger, 779 F.2d 1393, 1396

(9th Cir.), reaff’d. 787 F.2d 1288 (1986); Helm v. California,

dns iia

App. 31

722 F.2d 507, 509 (9th Cir. 1983); Gonzalez v. Department of

the Army, 718 F.2d 926, 929 (9th Cir. 1983); Wallace v.

Chappell, 661 F.2d 729, 732-33 (9th Cir. 1981), rev'd on other

grounds, 462 U.S. 296 (1983). The Mindes test has been

adopted by seven other federal circuits. See Khalsa, 787

F.2d at 1289 n.1.

Appellees argue that the Mindes test is not applicable

to this case because judicial review of appellants’ section

1983 claims is barred by Chappell v. Wallace, 462 U.S. 296

(1983), rev’g 661 F.2d 729 (9th Cir. 1981). In Chappell, five

enlisted men in the United States Navy brought an action

for damages and declaratory and injunctive relief against

their superior officers. The complaint alleged that in mak-

ing duty assignments, submitting performance evalua-

tions, and imposing penalties, the officers had

discriminated against the enlisted men on the basis of

race in violation of their constitutional rights. The com-

plaint also alleged a conspiracy to deprive the enlisted

men of equal protection in violation of 42 U.S.C.

§ 1985(3).

The Court examined the enlisted men’s direct consti-

tutional claims to determine whether they stated a claim

under Bivens v. Six Unknown Named Agents of Federal

Bureau of Narcotics, 403 U.S. 388 (1971), considering that

“[blefore a Bivens remedy may be fashioned . . . a court

must take into account any ‘special factors counselling

hesitation.’ ” Chappell, 462 U.S. at 298. In finding that it

would be inappropriate to allow enlisted personnel to

recover damages for alleged constitutional violations by

their superiors, two “special factors” were determinative:

“the unique disciplinary structure of the Military Estab-

lishment and Congress’ activity in the field.” Id. at 304.

App. 32

Chappell’s holding is that “enlisted military person-

nel may not maintain a suit to recover damages from a

superior officer for alleged constitutional violations.” Id.

at 305; Mollnow v. Carlton, 716 F.2d 627, 629-30 (9th Cir.

1983), cert. denied, 465 U.S. 1100 (1984). However, the

court did not address the alleged statutory violations, but

remanded the case to this court to determine whether the

claims for relief under 42 U.S.C. § 1985(3) might be judi-

cially cognizable. Chappell, 462 U.S. at 305 n.3. Implicit in

the remand order is the recognition that, in some situa-

tions, military personnel “may assert that their constitu-

tional and statutory rights have been violated by their

superiors.” Gonzalez, 718 F.2d at 929.

We do not find Chappell controlling here. See Pen-

agaricano, 747 F.2d at 59; Mollnow, 716 F.2d at 631. In

Chappell the Court was unwilling to extend a judicially

created damages remedy to suits against military person-

nel for alleged constitutional violations. However, the

Court’s rationale has left the field open for Congress to

enact legislation authorizing servicemen’s constitutional

claims against their superiors. Chappell, 462 U.S. at 304;

Mollnow, 716 F.2d at 631. The issue before us is whether

appellants’ claims under 42 U.S.C. § 1983 to reinstatement

and damages are justiciable given the special characteris-

tics of the military setting. We need not decide whether

Chappell bars any or all section 1983 claims for alleged

civil rights violations by military personnel. But see Mar-

telon v. Temple, 747 F.2d 1348, 1351 (10th Cir. 1984) (by

enacting section 1983, Congress did not intend to create

liability on the part of military superiors for transgres-

sions against the rights of other military personnel), cert.

denied, 471 U.S. 1135 (1985). Even assuming that Chappell

App. 33

does not bar section 1983 actions by military personnel,

we find the particular claims raised by appellants are

nonreviewable.

II.

Appellants argue that the Mindes test, reflecting only

limited reviewability of certain military decisions, should

be applied only where the importance of military

decision-making autonomy is apparent and an adequate

alternative dispute resolution mechanism exists. Appel-

lants claim that deferential review is inappropriate in this

case because the Washington Guard is a state agency not

in active military service. In addition, they assert that no

intraservice remedy, analogous to the military justice sys-

tem, exists for resolution of their claims.

Appellants’ arguments are unpersuasive. The Wash-

ington Guard is a state agency, but it is also part of the

organized militia of the United States, 10 U.S.C. § 101(12),

and may be called to active service at any time. 10 U.S.C.

§ 8500. The availablilty of an intraservice remedy is one

factor to be considered in the justiciability equation, but

the alleged absence of such a remedy does not preclude

application of the Mindes test. See Mollnow, 716 F.2d at 629

(the Supreme Court discussed the availability of intraser-

vice remedies in Chappell, but did not suggest that an

inadequate remedy would change its result). Moreover, in

Sebra v. Neville, supra, 801 F.2d at 1141, we specifically

held that the Mindes test is the appropriate standard to

determine whether claims brought by National Guard

technicians are reviewable. Accord Penagaricano, 747 F.2d

App. 34

at 61-64; NeSmith v. Fulton, 615 F.2d 196, 201-03 (5th Cir.

1980).

As modified by this Circuit, the Mindes test declares

that:

an internal military decision is unreviewable unless

the plaintiff alleges (a) a violation of [a recognized

constitutional right], a federal statute, or military

regulations; and (b) exhaustion of available intraser-

vice remedies. If the plaintiff meets both prerequi-

sites, the trial court must weigh four factors to

determine whether review should be granted:

(1) The nature and strength of the plaintiff's claim. . . .

(2) The potential injury to the plaintiff if review is

refused.

(3) The extent of interference with military functions.

(4) The extent to which military discretion or expertise

is involved.

Khalsa, 779 F.2d at 1398 (quoting Wallace v. Chappell, 661

F.2d at 732-33) (emphasis in original); see also Sandidge v.

Washington, 813 F.2d 1025, 1026 (9th Cir. 1987); Sebra, 801

F.2d at 1141.

As to the first phase of this analysis, appellants do

allege violations of recognized constitutional rights.

Appellants also argue that they have satisfied the exhaus-

tion requirement because no intraservice remedy is avail-

able. ANGR 36-06 does not provide a means for a rejected

officer to obtain review of an Adjutant General’s nonre-

tention decision, see Penagaricano, 747 F.2d at 57, and

appellants contend that there is no remedy available

under the laws of Washington State. However, it appears

that appellants could have sought relief from the Air

Force Board for correction of Military Records under 10

App. 35

U.S.C. § 1552. See Navas v. Gonzalez Vales, 752 F.2d 765,

769-70 (1st Cir. 1985); Penagaricano, 747 F.2d at 57; see also

Chappell, 462 U.S. at 303 (Court identified Board for Cor-

rection of Naval Records as an intraservice administrative

remedy for aggrieved enlisted men). If the Records Board

determines that an officer’s nonretention was the conse-

quence of error or injustice, it can correct federal records

to show that federal recognition has not been withdrawn

and can reinstate the officer in a comparable active fed-

eral reserve status, restore his pay, and order compensa-

tory back pay. Penagaricano, 747 F.2d at 57.

The parties have not made an issue of the availability

of review by the Records Board, which has no power to

force Washington to reinstate appellants in the Washing-

ton Guard. See id. Appellees suggest that if appellants

had obtained a definitive interpretation of ANGR 36-06 in

their favor from the Records Board, the Washington

Guard might have reinstated them as a matter of comity.

See Navas, 752 F.2d at 770. However, there is no evidence

to support this contention. Given that the Records Board

could not provide effective relief against the state appel-

lees, we will assume that appellants have exhausted all

available remedies and address the four factors required

by the second phase of the Mindes test. On balance these

factors favor finding appellants’ claims non-reviewable.

We first must assess the nature and strength of appel-

lants’ constitutional claims. According to appellants, Col-

lins violated their First Amendment right to free speech

because he terminated them for “whistleblowing,” that is,

speaking out regarding a violation of federal regulations

governing nuclear weapons safety. Following a careful

review of the record and supplemental briefing ordered

App. 36

in this case, we are constrained to disagree. As the imme-

diate commander in charge of implementing the Human

Reliability Program, Main had military authority to tem-

porarily disqualify the two officers. His preparation of

notice to the ADC was simply the means of effectuating

his exercise of that authority. The statements made by

Main and Christoffersen during their meeting with the

ADC Inspector General were designed to replace the

unforwarded notice and effectuate Main’s exercise of mil-

itary authority by thwarting the Washington Guard’s

attempts to reinstate the disqualified officers. Similarly,

Warn’s actions as an investigatory board member, and

Gibson’s actions as unit commander and officer evalua-

tor, consisted of nothing more than the exercise of mili-

tary authority. The appellants’ exercise of their military

authority, even though accomplished through the use of

words, does not constitute “whistleblowing.”

Appellants contend that, even if they merely exer-

cised their military authority, such exercise was constitu-

tionally protected. They assert that the appropriate test of

First Amendment protection requires a balancing of “the

interests of the [employee], as a citizen, in commenting

upon matters of public concern and the interest of the

State, as an employer, in promoting the efficiency of the

public services it performs through its employees.” Con-

nick v. Myers, 461 U.S. 138, 142 (1983) (quoting Pickering v.

Board of Education, 391 U.S. 563, 568 (1968)). Whether

speech is constitutionally protected is an issue of law. Id.

at 148 n.7.

We may assume, without deciding, that the Connick

test applies to appellants’ exercise of military authority in

which they addressed a matter of public concern, i.e.,

App. 37

nuclear weapons safety. We nonetheless hold that what-

ever First Amendement interests are implicated by this

exercise are outweighed by Washington State’s strong

interest in promoting the efficiency of the military ser-

vices it provides through the Washington Guard. The

ability of the Washington Guard to make even routine

personnel decisions would be severely impaired if we

were to hold otherwise. See McAdams v. Matagorda County

Appraisal District, 798 F.2d 842, 848 (Sth Cir. 1986).

Appellants also assert that their termination from the

Washington Guard deprived them of a protected entitle-

ment to continued employment as civilian technicians

without procedural due process. Appellants claim that

their expectancy is based upon the National Guard Tech-

nicians Act and its legislative history. Pub. L. No. 90-486,

82 Stat. 755 (1968). The Act specifically allows the Secre-

tary of the Air Force to exempt technicians in the Air

National Guard from the mandatory effect of Air Force

retirement laws until age 60, thereby allowing technicians

to receive maximum retirement benefits. Pub. L. No.

90-486, § 9(2) (codified at 10 U.S.C. §§ 8848(c), 8851(c)).

Appellants also base their expectancy on a written

National Guard Bureau policy to retain technicians to age

55, and on National Guard custom.

Appellants’ argument that Collins violated their right

to procedural due process is without merit because they

have no constitutionally protected property interest in

continued employment with the Washington Guard. See

Navas, 752 F.2d at 768; Penagaricano, 747 F.2d at 62; Walker

v. Alexander, 569 F.2d 291, 294 (5th Cir. 1978). Moreover,

appellants lost any protected interest in their civilian

technician positions when their military membership in

lll

App. 38

the National Guard ended. See Tennessee v. Dunlap, 426

U.S. 312, 316 (1976). Appellants’ reliance on the National

Guard Technicians Act, which simply allows but does not

require the retention of qualified technicians, is mis-

placed. The Act is directed to the Secretary of the Air

Force and does not purport io limit the role of state

National Guards in making retirement decisions. See 10

U.S.C. §§ 8848(c), 8851(c). Similarly, the fact that ANGR

36-06 directs an Advisory Board to consider an officer’s

status as a civilian technician in making a recommenda- |

tion to the Adjutant General does not support appellants’

due process claim. See Navas, 752 F.2d at 768 (regulation

only creates a property interest if it explicitly or implicitly

gives rise to an entitlement to continued employment).

Because both of appellants’ constitutional claims are

meritless, we conclude that the first Mindes factor does

not favor reviewability of Collins’ nonretention decisions.

The second factor to be considered is the potential

injury to appellants if review is denied. As a result of

their nonretention in the Washington Guard, appellants

have lost both military and civilian employment. Christ-

offersen and Main have lost their eligibility for civil ser-

vice retirement benefits, and Warn and Gibson will not

qualify for full amount of civil service benefits they

would have received if allowed to serve until age 55.

However, each appellant is qualified for a military retire-

ment pension at age 60. The potential injury to appellants

is primarily economic. See Helm, 722 F.2d at 510.

If this court refuses review, appellants still will be

able to seek review before the Air Force Board for Correc-

tion of Military Records under 10 U.S.C. § 1552. If proper

App. 39

grounds for relief were presented, the Records Board

could reinstate each appellant in active federal reserve

status, restore his pay, and order back pay. Penagaricano,

747 F.2d at 57. However, although the refusal of judicial

review would not leave appellants without a remedy, we

recognize that the Records Board could not provide any

relief with respect to the state appellees. Thus the second

Mindes factor tips, but not strongly, in appellants’ favor.

See id. at 62.

The third and fourth factors to be considered are the

extent of interference with military functions and the

extent to which military discretion or expertise is

involved. To permit judicial review of the internal mili-

tary decisions at issue here would seriously impede the

military in performance of its vital duties. Penagaricano,

747 F.2d at 63; Turner v. Egan, 358 F.Supp. 560, 564 (D.

Alaska) (three judge district court), aff'd mem. 414 U.S.

1105 (1973). Military authorities have been charged by the

Executive and Legislative Branches with carrying out our

Nation’s military policy, Goldman v. Weinberger, 475 U.S.

503, 508 (1986), including the Vitalization Program, which

is essential to maintain a high capability of the National

Guard. Turner, 358 F.Supp. at 564. If courts were routinely

to entertain complaints like appellants’ the Vitalization

Program could be significantly impaired. Penagaricano,

747 F.2d at 62. Claims challenging retention decisions in

civilian court could force the Washington Guard to “exist

in limbo awaiting the outcome of lengthy litigation,

rather than conducting an orderly training program

directed to sharpening its operational readiness.” Id. at

62-63 (quoting Turner, 358 F. Supp. at 564). Judicial review

could also impair the ability of the National Guard to

App. 40

make retention decisions based on subjective, though

appropriate, criteria of military efficiency. Id. at 63. We

have previously noted that particular caution is required

when we are asked to review “military transfer decisions

[which] go to the core of deployment of troops and over-

all strategies of preparedness.” Sebra, 801 F.2d at 1142.

This admonition carries even greater force with respect to

retention decisions. See Dilley v. Alexander, 603 F.2d 914,

919 (D.C. Cir. 1979) (deference to military discretion is at

its height when personnel decisions such as discharge are

challenged), clarified, 627 F.2d 407 (1980); accord Pen-

agaricano, 747 F.2d at 63; Pauls v. Secretary of Air Force, 457

F.2d 294 (1st Cir. 1972); Johnson v. Orr, 617 F. Supp. 170,

172 (E.D. Cal. 1985), aff'd mem. 787 F.2d 597 (9th Cir.

1986); benShalom v. Secretary of Army, 489 F. Supp. 964, 971

(E.D. Wis. 1980).

Appellants argue that Adjutant General Collins acted

arbitrarily because he ignored the Advisory Board’s rec-

ommendation that appellants be retained in the Washing-

ton Guard. While there might be merit to this claim, we

disagree with appellants’ argument that the challenged

nonretention decisions do not require a high degree of

military discretion and expertise. Penagaricano, 747 F.2d at

63. As a practical matter there is no way that judicial

review could be limited to consideration of Appellants

First Amendment claim. The district court could not

reach a judgment without exposing itself to all the pros

and cons of the nonretention decisions. Id. Collins and the

officers who participated on the Advisory Board would

have to be examined to determine the grounds and

motives for their actions. See Sandidge, 813 F.2d at 1027;

Gonzalez, 718 F.2d at 930. However, ANGR 36-06 gives

i cseiennesseeeenieiiiliiaineiatieataiate ae

App. 41

these military personnel essentially unlimited discretion

in making nonretention decisions. The regulation clearly

requires the Advisory Board and Adjutant General to

apply their expertise regarding projected Washington

Guard needs and present capabilities. See ANGR 36-06, ]

10e. “[C]ourts must give great deference to the profes-

sional judgment of military authorities.” Goldman, 475

U.S. at 507. Thus the third and fourth Mindes factors

weigh heavily against review of the challenged nonreten-

tion decisions.

On balance, then, we conclude the Mindes factors

weigh against reviewability of appellants’ constitutional

claims.

If.

Appellants challenge ANGR 36-06 on numerous

grounds. They argue that the regulation (1) lacks legal

authority and conflicts with the National Guard Techni-

cians Act, (2) was improperly issued, and (3) denied them

due process and equal protection. None of these argu-

ments has merit.

A. Legal Basis for ANGR 36-06

Appellants argue that ANGR 36-06 is illegal because

no federal statute authorizes the Vitalization Program

developed by the National Guard Bureau. They also

argue, somewhat inconsistently, that a federal regulation

cannot be used to terminate a Guardsman commissioned

under state law.

Congress’ authority over the military extends to the

National Guard, see U.S. Const. art. I. § 8, cl. 16, and

App. 42

Congress has authorized the Secretary of the Air Force to

regulate the Air National Guard. 10 U.S.C. § 8077. Based

on these constitutional and statutory provisions, we reject

appellants’ arguments that ANGR 36-06 is not authorized

and that a federal regulation cannot be applied to officers

in a state National Guard.

Appellants also claim that ANGR 36-06 conflicts with

the National Guard Technicians Act, which exempts tech-

micians from Air Force retirement laws. See 10 U.S.C.

§§ 8848(c), 8851(c). This argument must be rejected for the

reasons discussed earlier: the Act permits, but does not

require, retention of technicians, and does not limit the

authority of state National Guards to make retirement

decisions.

B. ANGR Was Properly Issued.

Relying on the National Guard Technicians Act,

appellants argue the Secretary of Defense was required to

approve ANGR 36-06. See Pub. L. No. 90-486, § 10, 82

Stat. 755 (1968). The problem with this argument is that

the regulation was not issued under the National Guard

Technicians Act. ANGR 36-06 is a military personnel reg-

ulation, not a technician regulation. The class of military

personnel affected by the regulation is much broader than

the subclass of technicians. Therefore, approval by the

Secretary of Defense was not required.

Appellants argue that even if the Secretary of the Air

Force could approve ANGR 36-06, he did not do so.

Appellants claim that only two officers of the Air Staff

reviewed the proposed regulation, and that these officers

ner

App. 43

submitted comments to the National Guard Bureau, but

did not specifically concur.

Appellants’ argument that the Secretary of the Air

Force could not delegate authority to approve the regula-

tion to the Air Staff must be rejected. See 10 U.S.C.

§§ 8013(f), 8032. Moreover, the record shows that the Air

Staff properly concurred prior to issuance of ANGR

36-06. Standard Air Force practice is that a concurrence

may be made with or without comments, but that a

nonconcurrence must be expressly stated. Therefore, the

comments submitted by the Air Staff officers on the pro-

posed regulation, which do not explicitly withhold

approval, constitute concurrences.

C. Due Process and Equal Protection

Appellants argue the ANGR 36-06 violates due pro-

cess because they were deprived of a protected property

interest without an opportunity to challenge the actions

of the state Adjutant General. This argument must be

rejected because, as discussed earlier, appellants had no

right to continued employment in the Washington Guard

or as Civilian technicians. See Tennessee v. Dunlap, 426 U.S.

at 316; Navas, 752 F.2d at 768; Penagaricano, 747 F.2d at 62;

Walker, 569 F.2d at 294.

Appellants’ equal protection argument is based on an

allege difference between the Vitalization Program regu-

lations covering the Air and Army National Guards.

~ According to appellants, under the Army National Guard

regulation, NGR 635-102, an officer favorably reviewed

‘. a

App. 44

by an Advisory Board cannot be discharged by the Adju-

tant General. In contrast, ANGR 36-06 allowed Collins to

ignore the Advisory Board’s recommendations that each

appellant be retained in the Washington Guard.

Appellants’ equal protection challenge to ANGR

36-06 must be rejected. Appellants rely on the affidavit of

a former state Assistant Adjutant General and Brigadier

General in the Washington Army National Guard to

describe the Army National Guard’s Vitalization Pro-

gram. However, the record shows that the regulations

covering the Army and Air National Guards were identi-

cal at all times relevant to this Jitigation. The Army

National Guard Regulation was not changed until

December 31, 1979, to prevent an Adjutant General from

overturning an Advisory Board’s recommendation to

retain a particular officer. Compare, NGR 635-102 { 6

(Sept. 28, 1973), with NGR 635-102 4 6i(1) (March 22,

1982).

AFFIRMED.

App. 45

| APPENDIX 4

| UNITED STATES COURT OF APPEALS

| FOR THE NINTH CIRCU!T

ALFRED P.

CHRISTOFFERSEN;

WILLIAM J. GIBSON;

RICHARD F. MAIN; and

JOHN R. WARN,

Plaintiffs-Appellants,

No. 85-4315

D.C. No. C81-572-JLQ

ORDER

(Filed

V. December 15, 1988)

WASHINGTON STATE AIR

NATIONAL GUARD; THE

ADJUTANT GENERAL OF

WASHINGTON STATE,

MAJOR GENERAL GEORGE

COATES; MAJOR GENERAL

ROBERT J. COLLINS; THE

WASHINGTON STATE

TREASURER, ROBERT S.

O’BRIEN,

Defendants-Appellees.

eh oe i i ee a a ee, ee, ee ee, ee, ee ee

Before: POOLE, NORRIS and BEEZER, Circuit Judges.

The panel as constituted in the above case has voted

to deny the petition for rehearing and to reject the sug-

gestion for rehearing en banc.

The full court has been advised of the suggestion for

en banc rehearing, and no judge of the court has

requested a vote on the suggestion for rehearing en banc.

Pursuant to Rule 35(b) of the Federal Rules of Appel-

late Procedure, the petition for rehearing is denied and

the suggestion for rehearing en banc is rejected.

App. 46

APPENDIX 5

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

ALFRED P.

CHRISTOFFERSEN;

WILLIAM J. BIGSON; [sic]

RICHARD F. MAIN; and

JOHN R. WARN,

Plaintiffs-Appellants,

No. 85-4315

CV-81-572-JLQ

(Filed

December 27, 1988)

VS.

WASHINGTON STATE AIR

NATIONAL GUARD, et al,

Defendants-A ppellees.

we ee Oe eee ee

APPEAL from the United States District Court for the

___ District of __.

THIS CAUSE came on to be heard on the Transcript

of the Record from the United States District Court for

the EASTERN District of WASHINGTON (SPOKANE)

and was duly submitted.

ON CONSIDERATION WHEREOF, It is now here

ordered and adjudged by this Court, that the _ _

judgment of the said District Court in this Cause be, and

hereby is AFFIRMED.

Filed and entered 8/31/88

App. 47

APPENDIX 6

IN THE UNITED STATES COURT OF CLAIMS

No. 507-80C

ALFRED P. ) Military pay; legality of

CHRISTOFFERSEN, ) termination of National

WILLIAM J. GIBSON, ) Guard military and techni-

RICHARD F. MAIN, and ) cian positions; lack of

JOHN R. WARN, ) jurisdiction.

Plaintiffs, )

) (Filed May 28, 1982)

Vv. )

THE UNITED STATES )

Defendant. ‘

Charles Matthew Andersen, attorney of record, for

plaintiffs. Winston & Cashatt and Richard L. Swick, of

counsel.

Stephen G. Anderson, with whom was Assistant Atior-

ney General J. Paul McGrath, for defendant. Thomas J.

Fiscus, Capt., USAF, of counsel.

Before KASHIWA, BENNETT and SMITH, Judges.

ORDER

Plaintiffs bring this action for reinstatement, back

pay, allowances, benefits and other damages arising out

of the alleged wrongful termination of employment as

App. 48

civilian (federal) technicians and involuntary retirement

from the Washington State National Guard. Defendant

has brought a motion for summary judgment which

plaintiffs oppose. For the reasons stated, defendant's

motion is granted.

Plaintiffs were all longtime officers in the National

Guard (NG) who also held positions as civilian “techni-

cians” in the Guard. Over the course of their military

careers, plaintiffs Christoffersen, Main, and Warn were

promoted to the grade of lieutenant colonel, Gibson to

the grade of colonel. In July 1978, each plaintiff was

considered pursuant to Air National Guard Regulation

(ANGR) 36-06 for selective retention, having accumulated

over 20 years of service qualifying for retirement Pay.

ANGR 36-06 was issued in furtherance of the policy of

“vitalization” of the Air NG, which is “essential to avoid

loss of combat readiness in a maturing force. Lack of

promotion possibility and stagnation in the senior grades

preclude providing for progression of qualified officers

into positions of greater responsibility at the proper

phase-poiuts of their careers.” ANGR 36-06, J 2 (October

7, 1977). In order to administer this policy, an advisory

vitalization board performs an annual review of all offi-

cers with over 20 years of qualifying service. Recommen-

dations of the board are forwarded to the State Adjutant

General (AG). Plaintiffs were all reviewed by the board,

and in each case plaintiff was recommended for retention

in the NG. The AG, however, decided against retention,

and notified each plaintiff in writing of his decision.

Nowhere in the record is there any statement or evidence

that plaintiffs had not satisfactorily performed their

duties as either guardsmen or technicians. Plaintiffs

App. 49

Christoffersen, Gibson, and Main were honorably dis-

charged from their military positions in September 1978,

Warn in October 1978. Plaintiffs’ civilian technician posi-

tions, under 32 U.S.C. § 709 (1976), are predicated upon

active military status in the NG.' Accordingly, plaintiffs

were terminated from their technician postitions upon

their dismissal from their military positions. After their

involuntary separation form their concurrent positions,

plaintiffs were transferred to the inactive U.S. Air Force

Reserve, as required by ANGR 36-06, {11c. Plaintiffs filed

suit in this court on Septernber 16, 1980.

Plaintiffs allege that they are entitled to relief in this

court on the basis of five claims: (1) plaintiffs’ nonreten-

tion was arbitrary and capricious and in violation of

applicable regulations, all in violation of the due process

rights of plaintiffs; (2) plaintiffs’ dismissal by AG was

justified on the basis of (then) Governor Ray’s desire for a

change in the mid-level management of the Air NG, in

violation of regulations and due process; (3) the National

Guard Bureau, by failing to sufficiently investigate or

reconsider the matter or give plaintiffs an opportunity for

continuation as technicians until age 60, deprived plain-

tiffs of their property rights without due process; (4)

plaintiffs were denied their statutory and regulatory

appeal rights in violation of due process; and (5) dis-

missal of the plaintiffs was a subterfuge instigated by the

1 32 U.S.C. § 709(e)(1) states that a technician “who is

separated from the National Guard or ceases to hold the mili-

tary grade specified for his position *** shall be promptly

separated from his technician employment ***.” See also section

709(b).

App. 50

AG and Governor Ray in order to promote more politi-

cally acceptable individuals, in violation of plaintiffs’

First Amendment rights to free speech and association,

and an improper objective of Air Force regulations.

Defendant argues that even if plaintiffs’ allegations

are correct (which defendant concedes only for the sake

of argument), plaintiffs would still have no valid mone-

tary claim against the United States. This court, therefore,

would have no jurisdiction in this matter. Defendant

argues that our recent decision in Gnagy v. United States,

225 Ct. Cl. __, 634 F.2d 574 (1980), is dispositive of any

claim within our jurisdiction. We agree that if plaintiffs

cannot sufficiently differentiate their case from Gnagy,

defendant is entitled to summary judgment.

The crucial issue to be decided here is whether any of

the alleged wrongs involved in the plaintiffs’ dismissal

constitute a proper action against the United States. For

our purposes, the merits of any of plaintiffs’ claims are

only relevant if their proof would result in a remedy

within our jurisdiction. At the heart of this issue is the

federal or state characterization of plaintiffs’ concurrent

positions as military officers and civilian technicians. This

is precisely the issue that this court resolved in Gnagy.

The issue decided_in Gnagy was whether a military

member of the NG, ot in active federal service, is a

federal “employee” for purposes of the Back Pay Act. 5

U.S.C. § 5596 (1976). The plaintiff in Gnagy was a first

sergeant in the California Army National Guard and also

held the concurrent position of civilian technician. Plain-

tiff, after serving more than 20 years qualifying for mili-

tary retirement, was considered for retention by a board

App. 51

set up under Army NG regulations similar to ANGR

36-06. Unlike the present case, in Gnagy the board recom-

mended that plaintiff not be retained. Accordingly, plain-

tiff was given an honorable discharge from the military

and his technician position was terminated pursuant to

32 U.S.C. § 709(e)(1). Plaintiff claimed that his discharge

was based upon a derogatory report which failed to abide

by regulations and the board failed to consider informa-

tion favorable to the plaintiff.

In Gnagy we held that a member of an NG unit not in

active federal service is not a federal employee, in his

military capacity, for purposes of the Back Pay Act. This

court went on to say, “Rather, he is a state employee. We

are aware of no federal constitutionai provision, statute,

or regulation which authorizes this court to award mone-

tary relief to a wrongfully discharged state employee.”

225 Ct. Cl. __ 1.19, 634 F.2d at 579 n.19. As to plaintiff's

claim for recovery for loss of employment as a technician

(admittedly a federal position), this court held that no

recovery was permitted under the Back Pay Act since the

action was neither “unjustified or unwarranted” --rather,

the loss of civilian employment was mandated by statute.

32 U.S.C. § 709(e)(1). As a consequence of these holdings,

the plaintiff's claims were dismissed without discussion

of the underlying merits of the claims.

Plaintiffs argue that Gnagy is not applicable and

therefore not a bar to their claims for relief. Plaintiffs

2 32 U.S.C. § 709(d) states that “A technician *** 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.”

App. 52

point out that in Gnagy the plaintiff was not recom-

mended for retention by the board. Here, plaintiffs were

recommended for retention and were only discharged as

a result of the allegedly illegal actions of the AG. Plain-

tiffs state that as officers, unlike Gnagy, they were enti-

tled to certain procedures unavailable to an enlisted

soldier. Plaintiffs argue that the AG’s actions present a

“proximate factual question of a federal agent acting

under color of a federal regulation” which creates a fed-

eral cause of action.

We do not believe that the facts and arguments pre-

sented here are sufficiently distinguishable from Gnagy to

permit plaintiffs a trial on the merits. Plaintiffs’ attempts

to distinguish Gnagy fail to come to grips with the under-

lying rationale of the decision--namely, plaintiffs in their

military NG capacity are state, not federal, employees. As

a consequence, all of the plaintiffs’ substantive claims

relate to alleged wrongs to which this court has no juris-

diction. Tne basis of most of plaintiffs’ claims is the

alleged wrongful dismissal by the AG. As this court

pointed out in Gnagy, even if it is assumed that the AG is

acting as a federal agent, plaintiffs are not federal

employees, “Hence, the status of the commanding gen-

eral [substantively the same position as the AG for this

purpose] and his subordinates relative to the enlisted

qualitative retention program does not impact on the

issue whether plaintiff’s former membership in the Cali-

fornia Guard qualifies plaintiff as a federal employee for

purposes of the Back Pay Act.” 225 Ct. Cl. at___n. 11, 634

F.2d at 577 n.11.

Plaintiffs cite numerous cases to support their posi-

tion that they are entitled to relief in this court. However,

App. 53

in none of these cases was the plaintiff dismissed from his

civilian technician position solely as a result of loss of NG

military membership. In NeSmith v. Fulton, 615 F.2d 196

(5th Cir. 1980), plaintiff was initially dismissed from his

technician position, not as a matter of law under 32

U.S.C. § 709(e)(1). 615 F.2d at 200. In Athas v. United

States, 220 Ct. Cl. 96, 597 F.2d 722 (1979), plaintiffs were

civilian administrators in the Alaska Air NG who were

not apprised of their right to appeal. The adverse person-

nel action was unrelated to the issue of dismissal result-

ing from loss of military membership in the NG. Caaudoin

v. Atkinson, 494 F.2d 1323 (3d Cir. 1974), is similarly

inapposite: the plaintiff was dismissed for cause relating

to his (federal) civilian status. As this court stated in

Gnagy, “There is no statute conferring federal employee

status as an incident of membership in a National Guard

unit not in active federal service. Hence, the facts under-

lying Chaudoin are different from the facts here and the

holding in Chaudoin is unrelated to the issue here.” 225

Ct. Cl. at___, 634 F.2d at 577. Plaintiffs have not cited any

cases where a federal cause of action arose from the loss

of a federal technician position due to operation of law

under 32 U.S.C. § 709(e)(1).

Plaintiffs argue that they had a “protected property

interest” in their technician positions until acquisition of

the maximum retirement annuity at age 55, and they were

deprived of this right without due process of law. Plain-

tiffs base their claim on an alleged practice of the

National Guard Bureau to grant “waivers” from manda-

ted retirement. A similar claim was rejected in a Fifth

Circuit case, Walker v. Alexander, 569 F.2d 291 (1978).

There, the court noted that the U.S. Supreme Court has

App. 54

held that section 709(e)(1) forms a valid basis for termina-

tions of a technician’s employment without proof of

“cause.” Tennessee v. Dunlap, 426 U.S. 312 (1976). In

Walker, as in the present case, plaintiff was subject to

“selective retention” regulations which create no expecta-

tion of future employment once a serviceman reaches the

requisite number of years of qualifying service. The court

therefore concluded that the plaintiff “had no property

right in his retention as a commissioned officer in the

Florida National Guard.” 569 F.2d at 294.

Plaintiffs rely on Bollen v. National Guard Bureau, 449

F.Supp. 343 (W.D. Pa. 1978), where a district court found

a property interest in continued military employment as a

result of a letter by the Chief of the National Guard

Bureau. This letter contained a “one time list” of officers

who were to be retained until age 60 provided they

remained fully qualified for their military positions and

properly performed their technician jobs. 449 F.Supp. at

350. However, plaintiffs do not allege that they were

included in this list. Furthermore, the court in Bollen did

not address the issue of a technician who is dismissed

pursuant to 32 U.S.C. § 709(e)(1).

Plaintiffs claim that they were improperly denied a

right of appeal from the termination of their technician

positions. But plaintiffs can point to no applicable statute

or regulation which confers a right of adminstrative

appeal where the termination results from the loss of

military status. The appeal rights contained in Technician

Personnel Manual (TPM) 700 specifically state that its

provisions do not apply where the technician is separated

due to loss of military membership (where required as a

condition of employment). TPM 700, Chapter

App. 55

753.1-1(b)(2). As mentioned earlier, the Supreme Court

has held that dismissal under 32 U.S.C. § 709(e)(1) is not a

“for cause” action, so no due process violation resulted

where a request for a hearing was denied. Tennessee v.

Dunlap, supra.

In the final analysis, there is no theory available to

plaintiffs which would permit recovery in this court con-

sistent with our holding in Gnagy. As in Gnagy, plaintiffs

were terminated from their tecnnician positions due to

the loss of their military positions in the NG. Such termi-

nation was mandated by statute. 32 U.S.C. § 709(e)(1).

Any claim of illegality resulting from plaintiffs’ termina-

tion, therefore, must by necessity turn on plaintiffs’ loss

of their military NG positions. Since we have previously

stated that a military member of the NG, not in active

federal service, is a state employee, plaintiffs have no

basis for recovery of monetary damages against the

United States in these circumstances. Even if it can be

shown that plaintiffs’ dismissal from the NG was

improper, such an action would not properly be before

this court.

IT Is THEREFORE ORDERED, upon consideration of

defendant’s motion for summary judgment and plaintiff's

opposition thereto, without oral argument, that plaintiffs

have failed to state a claim upon which relief can be

granted. The motion is granted and the petition is

dismissed.

BY THE COURT

/s/ Marion T. Bennett

Marion T. Bennett

Judge

May 28 1982

App. 56

APPENDIX 7

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF WASHINGTON

ALFRED P. JUDGMENT IN A

CHRISTOFFERSEN,, et al. CIVIL CASE

V. (Filed October 11, 1985)

THE WASHINGTON CASE NUMBER: _

STATE AIR NATIONAL C-81-572-JLQ

GUARD, et al.

[ ] Jury Verdict. This action came before the Court for a

trial by jury. The issues have been tried and the jury

has rendered its verdict.

[x] Decision by Court. This action came to hearing

before the Court. The issues have been heard and a

decision has been rendered.

IT IS ORDERED AND ADJUDGED

that the defendants’ Motions for Summary Judgment are

granted; plaintiffs’ Motion is denied; and the complaint

and claims therein are dismissed with prejudice.

October 11, 1985 J. R. FALLOUIST

Date Clerk

(By) Deputy Clerk

App. 57

APPENDIX 8

DEPARTMENT OF THE AIR FORCE

Headquarters, US Air Force CHANGE B

Washington DC 20330 ANGR 36-05

31 December 1968

Officer Personnel

SEPARATION OF AIR NATIONAL GUARD OFFICERS

ANGER 36-05, 19 December 1957, is changed as follows:

4f. Actions hereunder will be effected without regard to

sex, race, color, creed, or national origin.

9c. Special Retention. An Air National Guard officer

employed as a technician under 32 USC 709 in a position

for which Air National Guard membership is required,

who would otherwise be removed from an active status

under 10 USC 8848 or 8851 for length of service or time in

grade, may be retained in an active status until age 60

under PL 90-186 by the Chief, National Guard Bureau.

(1) Retention will be authorized until the officer

completes eligibility for an immediate annuity, at age 55,

under the Civil Service Retirement System or under a

State retirement system for those officers who elected to

continue membership therein. The Chief, National Guard

Bureau may waive this restriction for singularly out-

standing individuals whose records clearly justify further

retention, not to exceed age 60.

(2) Requests for retention must be completely justi-

fied and submitted to the Chief, National Guard Bureau,

at least 6 months prior to the date the officer would

otherwise be removed from an active status because of

App. 58

completion of years of service or time in grade provisions

of 10 USC 8848 or 8851.

(3) Notwithstanding any other provision of this reg-

ulation, an officer who became a civilian employee of the

Air National Guard prior to 1 July 1955 will not, before

attaining age 60, while so employed be removed without

his consent from an active status within the Air National

Guard by reason of any mandatory promotion procedure

except for cause, physical disability, or by reason of being

twice deferred for promotion. In the event a vacancy does

not exist in the higher grade for which selected, a grade

augmentation may be effected by the State, within estab-

lished policy.

BY ORDER OF THE SECRETARY OF THE AIR FORCE

OFFICIAL WINSTON P. WILSON, Major General

Chief, National Guard Bureau

C. C. BOATWRIGHT, Colonel

Executive, National Guard Bureau

DISTRIBUTION: B

App. 59

APPENDIX 9

DEPARTMENT OF THE AIR FORCE

Headquarters, US Air Force ANG REGULATION 36-06

Washington DC 20330 7 October 1977

Officer Personnel

SELECTIVE RETENTION OF AIR NATIONAL GUARD

OFFICER PERSONNEL

This regulation outlines the procedures for establishment

and conduct of advisory boards in the Air National

Guard program for selective retention of officers beyond

20 years of qualifying service for retired pay. The word

“he” as used in this regulation is intended to include both

male and female, unless otherwise indicated.

Paragraph

ECCT eee TeTEEE ETE TRE CREE 1

ee Peauis eos 4 eeligt ss dese sss sede dan Sees 2

Te AWA ph a A 6 oa tin 89 3 2e oe a 8 KO a

CS ree ee ee ee er ee ree 4

Appointment of.Advisory Board................... >

Composition of Advisory Board ................... 6

Organization of Advisory Board................... 7

Communications for Advisory Board............... 8

Personnel Data for Advisory Board................ 9

Procedures for Conducting Advisory Board........ 10

Actions on Advisory Board Reports................ 11

separauon for Other Reasons...................... 12

PPMEEEWO FACTIONG onic cei c sees cepa ddan 13

eel

App. 60

Attachments Page

1. Letter Format for Notification of Controlled Attri-

tion and Selective Retention in ANG Status.... 5

2. Special Order Format for Appointment of Advi-

sory BONA MeMDETENIP. ..... 2.2.5 cccccceseees 6

3. Advisory Board Report Format................. 7

M. WRRRONEEY TROORE FOPIRE oa ooo ick cc cc enasiass. 8

5. Roster Format “Officers Recommended for Reten-

ad b6 cane eee OE O ak Ree eN EEA eR REE 9

6. Roster Format “Officers Not Recommended for

PIE Gigs 68 ie ee EE OE el cea kh a eres 10

7. Letter Format “Selective Retention in ANG Sta-

i OR 2 aa catkins ae eee od Oe ew ees 11

8. Letter Format “Selective Retention in ANG Sta-

ae” SOE OUREIOD oo cos cen acc eee yessesdasecess 12

1. Terims Explained:

a. Officer. For the purpose of being considered for

retention under this regulation, the term “officer”

includes all commissioned officers and warrant officers of

the Air National Guard, including Air Technicians, except

for adjutants general, assistant adjutants general, and

general officers.

b. Qualifying Service Creditable for Retired Pay.

Combined total of commissioned, warrant, and enlisted

service, which is creditable for retired pay under chapter

Supersedes ANGR 36-06, 23 January 1976. (For summary of

revised, deleted, or added material, see signature page.)

OPR: NGB/DPM (Lt Col John Hawthorne)

Approved: MG LaVern E. Weber, USA

Writer-Editor: Doreen M. White

DISTRIBUTION: B

App. 61

67 of Title 10, United States Code, including service with

other DOD components.

2. Policy. Membership in the Air National Guard of the

United States is not an inherent right of any individual. It

is a privilege and confers upon an individual an obliga-

tion to serve in the active military service in the event of

mcbilization or emergency, or at such other times as the

national security may require. A continuing program of

vitalization of the Air National Guard is essential to

avoid loss of combat readiness in a maturing force. Lack

of promotion possibility and stagnation in the senior

grades preclude providing for progression of qualified

officers into positions of greater responsibility at the

proper phase-points of their careers. To accomplish this

program of officer development, all ANG commissioned

officers and warrant officers with over 20 years of quali-

fying service for retirement will be reviewed each year

for consideration of retention or separation. This program

will be achieved by controlled attrition and selective

retention of officers qualified for retirement under chap-

ter 67 of Title 10, United States Code.

a. A board of officers will be appointed by the State

Adjutant General each calendar year for the purpose of

making recommendations for the retention or separation

of officers in the Air National Guard of that State. A

single board may consider all officers or separate boards

may be convened to consider officers by grades.

b. Boards may be convened at any time during the

calendar year, but must be held in sufficient time to

provide for reports to be received by the Chief, National

Guard Bureau on or before 31 October.

App. 62

c. Except as provided in paragraphs 6b and 13c,

consideration under this regulation is mandatory for

every eligible officer.

3. Criteria. Officers being considered for retention will

meet the following criteria:

a. Must have accrued 20 or more years of service

required to qualify for retired pay at age 60 on or before

the date the board convenes. Officers previously selected

for retention under any authority, including those

retained past mandatory removal date under the provi-

sions Of sections 8848b, 8848c, and 8851c of Title 10,

United States Code, will be included and again

considered.

b. Must have been verified as being eligible for

retired pay at age 60.

c. Are physically qualified for worldwide assign-

ment. Prior to consideration by a board convened under

this regulation, an officer whose last physical examina-

tion was conducted more than 1 year before the date the

board convenes and required waiver of any factor will be

given a new physical examination. Waivers granted more

than 1 year before the date the board convenes must be

reevaluated. In the event the waiver is revalidated by the

National Guard Bureau, officer will then be considered by

the board.

4. Procedures:

a. The Chief, National Guard Bureau will, not later

than 31 January of each year, furnish each Adjutant Gen-

eral a listing of all officers under his jurisdiction who are

App. 63

certified as having 20 years of qualifying service credita-

ble for retired pay.

b. The Adjutant General will verify that the officers

listed meet the criteria specified above and will add to

the listing any officers certified subsequent to production

of the listing. He will send an informative letter on “con-

trolled attrition and selective retention in the Air

National Guard” to each officer concerned (attachment 1).

NOTE: This letter and other sample letters attached to

this regulation may be modified to fit local circumstances.

5. Appointment of Advisory Board. The board will be

appointed by the Adjutant General of the State by com-

posed order and addressed directly to the individuals

appointed (attachment 2).

6. Composition of Advisory Board. The board will be

composed of not less than three commissioned officers

with voting authority. Members may be selected from the

Air National Guard, and with the concurrence of the

commander concerned, from other components of the Air

Force. The majority of the members will be from the Air

National Guard. Tenure of office officers, other than the

Adjutant General, are eligible to serve. The Adjutant Gen-

eral may not serve as a member of the board. All board

members serve in their fede :lly-recognized grade. Adju-

tants General may make arrangements for officers from

outside their State to serve on the board.

a. The members of the board should possess wide

command, management, and technical experience. Board

members should be senior in federally-recognized grade

to those being considered. As a minimum, the president

of the board must be senior in grade to all officers being

App. 64

considered, and all board members must be senior in

rank to the highest ranking officer being considered.

b. Members of the advisory board will be selected

by the Adjutant General. His action to appoint the board

serves as approval for retention of those board members

who are officers of the ANG under his jurisdiction, and

they need not be considered by the board.

7. Organization of Advisory Board. The senior member

of the board (in federally-recognized grade) will be

appointed president of the board. The junior member will

be designated recorder, or, at the option of the Adjutant

General, an additional officer, without vote, may be

appointed to the board to act as recorder.

8. Communications for Advisory Board.

a. The individual being considered for selective

retention will be notified of pending action.

b. An individual being considered for selective

retention may write a letter to the advisory board inviting

attention to any matter of record concerning himself that

he feels important in the review of his record.

c. Letters of commendation or appreciation will be

forwarded through channels to the State Adjutant Gen-

eral for referral to the advisory board prior to the conven-

ing date of the board.

d. Unit commander impact statement identified in

paragraph 10 will be submitted to the board president

before the convening of the board. Statements will be

forwarded through command channels, and comments

may be added at each level of command if appropriate.

App. 65

e. Unsolicited communications that contain criti-

cism or reflect upon the character, conduct, or motives of

any officer will not be given to the advisory board.

9. Personnel Data for Advisory Board. Prior to con-

vening the board, personnel files of each officer being

considered will be screened to ensure the following infor-

mation is included:

a. Verification of 20 years service for retirement

b. Date last physical completed

c. Current physical waiver (if applicable

NOTE: List of officers to be considered by the board will

be matched against the listing furnished by the National

Guard Bureau at least 30 days prior to the anticipated

date of the board.

10. Procedures for Conducting Advisory Board. The

board will assemble at the time and place designated by

the president and proceed as follows:

a. The order appointing the board will be read.

b. The following oath will be administered to the

members by the recorder:

“You (identify each member by grade and name) do

swear (or affirm) that you will faithfully, without

prejudice or partiality, and having in view both the

special fitness of individuals and the efficiency of the

Air National Guard, perform duties imposed upon

you, and further that you will not divulge the pro-

ceedings or results of this board except to proper

authority. So help you god.”

App. 66

c. The following oath will be administered to the

recorder by the president of the board:

“You (identify by grade and name) do swear (or

affirm) that you will faithfully, without prejudice or

partiality, and having in view both the special fitness

of individuals and the efficiency of the Air National

Guard, perform duties imposed upon you as a mem-

ber and recorder of this board, and further that you

will not divulge the proceedings or results of this

board except to proper authority. So help you God.”

d. The board will review all documents and make

an evaluation of the future benefits that can be expected

to accrue to the Air National Guard from the continued

service of each officer it considers. When the capability of

a military unit will be affected by the loss of an officer

being considered, recommendations from appropriate

commanders should be included in the record before the

board

e. In arriving at an evaluation, the board should

consider but not be limited to the following:

(1) Demonstrated performance and potential as

reflected by the officer’s effectiveness reports, training

reports and letters of commendation.

(2) The availability of the individual for military

activities in light of the demands of his civilian

occupation.

(3) Past record of interest in and dedication to the

Air National Guard.

(4) Status with regard to Air Technician retirement

eligibility.

App. 67

(5) Rated capability and potential as a crew-member

in future years (rated only).

(6) Availability of replacement officer with less ser-

vice who may be lost due to mandatory promotion if high

grade vacancies do not exist.

(7) The ratio of officers in an age or service bracket

as relates to maintaining an age/grade/service balanced

force.

(8) Growth potential for replacing present leaders.

(9) Latest report of medical examination and physi-

cal fitness.

(10) Other factors bearing on a plan for assuring a

viable combat ready military unit in future years.

f. The recommendations of the board are advisory

only. Nevertheless, the members of the board must be

aware that their recommendations will largely determine

which officers are retained.

11. Actions on Advisory Board Reports:

a. Board:

(1) Other than the reports outlined in (2) and (3)

below, no record of board proceeding will be prepared.

(2) A report of the board actions and recommenda-

tions will be submitted to the State Adjutant General for

approval. (attachment 3).

(3) Any member of the board who disagrees with

the recommendations of the majority of the board may

submit a minority report. The member will sign both the

App. 68

minority report and the board proceedings, indicating on

the board proceedings that the minority report is being

submitted as an attachment (attachment 4).

b. State Adjutant General:

(1) The State Adjutant General will review the rec-

ommendations of the advisory Board, including minority

reports, and may approve or disapprove any specific

recommendations.

(2) Upon the conclusion of his review the Adjutant

General will make a report to the Chief, National Guard

Bureau to the effect that selective retention review of the

eligible officers of his State has been completed and that

he approves retention or nonretention of the listed offi-

cers and warrant officers (attachments 5 and 6). With-

drawal of Federal recognition will be effective not earlier

than the last day of the second month following the date

of the Adjutant General’s report to the National Guard

Bureau. The Adjutant General may specify a later date for

withdrawal of Federal recognition, but in no case later

than 31 December of the current year.

(3) The Adjutant General will notify each officer

concerned of the determination made as to his retention

or separation (atchs 7 and 8).

c. Chief, National Guard Bureau:

(1) The Chief, National Guard Bureau will publish

orders withdrawing Federal recoguution of all officers not

recommended for retention. The Adjutant General will be

provided copies of the order withdrawing Federal recog-

nition and will take necessary action to discharge the

App. 69

officer from the State and transfer him in grade to the Air

Force Reserve in accordance with ANGR 36-05.

12. Separation for Other Reasons. This regulation in no

way precludes initiation of action to separate an officer as

specified in ANGR 2 '5 or 36-014 before the effective

date of discharge under this regulation. If action is initi-

ated to separate an officer for other reasons, separation

under this regulation will be delayed until that action is

completed.

13. Administrative Actions. If through administrative

error an eligible officer is not considered as required by

this regulation, or if the action taken as to any officer

under this regulation is later set aside by competent

authority, the Chief, National Guard Bureau may take one

of the following actions:

a. Request that the Adjutant General concerned

reconvene the board for the purpose of considering or

reconsidering the affected officer.

b. Request that the Adjutant General concerned

convene a new board for the purpose of considering or

reconsidering the affected officer.

c. Waive, for the year in question only, the require-

ment that the affected officer be considered under this

regulation. This action will be taken only when the Chief,

National Guard Bureau determines that it is clearly

required in the interest of justice and fairness, or that the

passage of time makes it impractical to consider or recon-

sider the officer for the year in question before he is

considered in due course for the following year.

BY ORDER OF THE SECRETARY OF THE AIR FORCE

App. 70

OFFICIAL LA VERN E. WEBER, Major General,

USA

Chief, National Guard Bureau

ROBBRT H. NEITZ, Colonel, USAF

Executive, National Guard Bureau

SUMMARY OF REVISED, DELETED, OR ADDED

MATERIAL

This regulation provides revised guidance on establishing

and conducting selective retention advisory boards. It

deletes the requirement for general officers to be consid

ered by the board and adds authorization for tenure of

Oftice officers to serve on the board. The schedule for

conducting the board is revised to provide the Adjutant

General additional flexibility. Discharge provisions are

changed to allow for separation at a date determined by

the Adjutant General.

App. 71

APPENDIX 10

NATIONAL GUARD TECHNICIANS ACT Ob 1968

For Legislative History of Act, see po AATS

PUBLIC LAW 90-486; 82 STAT. 755

[S.3865]

An Act to clarify the status of National Caard techni

clans, and for other purposes

Be it enacted by the Senate and House of Representatives of the

United States of America in Congress assembled, That

This Act may be cited as the “National Caaard Techni

cians Act of 1968"

Sec. 2. Tithe 32, United States Code," is amended as

follows

(1) Section 709 is amended to read as follows

“§ 709. Technicians: employment, use, status

“(a) Under regulations prescribed by the Secrtary of

the Army or the Secretary of the Air Force, as the case

may be, and subject to subsection (b) of this section

persons may be employed as technicians in

“(1) the administration and training of the

National Guard; and

“(2) the maintenance and repair of supplies

issued to the National Guard or the armed forces

“(b) Except as prescribed by the Secretary con

cerned, a technician employed under subsection (a) shall,

while so employed, be a member of the National Guard

and hold the military grade specified by the Secretary

concerned for that position.

% 32 U.S.C.A. § 709.

App. 72

“(c) The Secretary concerned shall designate the

adjutants general referred to in section 314 of this title, to

employ and administer the technicians authorized by this

section.

“(d) 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. However, a position

authorized by this section is outside the competitive ser-

vice if the technician employed therein is required under

subsection (b) to be a member of the National Guard.

“(e) Notwithstanding any other provision of law

and under regulations prescribed by the Secretary con-

cerned -

“(1) a technician who is employed in a position in

which National Guard membership is required as a

condition of employment and who is separated from

the National Guard or ceases to hold the military

grade specified for his position by the Secretary con-

cerned shall be promptly separated from his techni-

cian employment by the adjutant general of the

jurisdiction concerned;

“(2) a technician who is employed in a position in

which National Guard membership is required as a

condition of employment and who fails to meet the

military security standards established by the Secre-

tary concerned for a member of a reserve component

of the armed force under his jurisdiction may be

separated from his employment as a technician and

concurrently discharged from the National Guard by

the adjutant general of the jurisdiction concerned;

“(3) a technician may, at any time, be separated

from his technician employment for cause by the

adjutant general of the jurisdiction concerned;

App. 73

“(4) a reduction in force, removal, or an adverse

action involving discharge from technician employ-

ment, suspension, furlough without pay, or reduction

in rank or compensation shall be accomplished by the

adjutant general of the jurisdiction concerned;

“(5) a right of appeal which may exist with

respect to clause (1), (2), (3), or (4) shall not extend

beyond the adjutant general of the jurisdiction con-

cerned; and

“(6) a technician shall be notified in writing of the

termination of his employment as a technician and

such notification shall be given at least thirty days

prior to the termination date of such employment.

“(f) Sections 2108, 3502, 7511, and 7512 of title 5,

United States Code, do not apply to any person employed

under this section.

“(g) (1) Notwithstanding sections 5544(a) and 6102

of title 5, United States Code, or any other provision of

law, the Secretary concerned may, in the case of techni-

cians assigned to perform operational duties at air

defense sites —

“(A) prescribe the hours of duties;

“(B) fix the rates of basic compensation; and

“(C) fix the rates of additional compensation;

to reflect unusual tours of duty, irregular additional duty,

and work on days that are ordinarily nonworkdays.

Additional compensation under the subsection may be

fixed on an annual basis and is determined as an appro-

priate percentage, not in excess of 12 percent, of such part

of the rate of basic pay for the position as does not exceed

the minimum rate of basic pay for GS-10 of the General

App. 74

Schedule under section 5332 of title 5, United States

Code.

“(2) Notwithstanding sections 5544(a) and 6102 of

title 5, United States Code, or any other provision of law

the Secretary concerned may, for technicians other than

those described in clause (1) of this subsection, prescribe

the hours of duty for technicians. Notwithstanding sec-

tions 5542 and 5543 of title 5, United States Code, or any

other provision of law, such technicians shall be granted

an amount of compensatory time off from their scheduled

tour of duty equal to the amount of any time spent by

them in irregular or overtime work, and shall not be

entitled to compensation for such work.

“(h) In no event shall the number of technicians

employed under this section at any one time exceed

42,500.”

(2) The analysis of chapter 7 is amended by striking

out the following item:

“709. Caretakers and clerks.”

and inserting in place thereof the following item:

“709. Technicians: employment, use, status.”

(3) Section 715(a)*> is amended by striking out

“caused by a person employed under section 709 of this

title acting within the scope of his employment;”.

Sec. 3. (a) A claim accrued under section 715 of title

32, United States Code, before the effective date of this

Act by reason of the act or omission of a person

35 32 U.S.C.A. § 715(a).

Anr

API

emploved under section 709 of title 32, United States

' y 4 - a } . } ] ] —

Code, may, if otherwise allowable, be settled and paid

under section 715 of title 32, United States Code

(b) Except as provided in this Act and in the

amendments made by this Act, and notwithstanding any

law, rule, regulation, or decision to the contrary, the

positions of persons employed under section 709 of title

32, United States Code, existing on the day before the

effective date of this Act, and the persons holding those

positions on that day, shall, on and after that effective

date, be considered to be positions in and employees of

the Department of the Army or the Department of the Air

Force, as the case may be, and employees of the United

States to the same extent as other positions in and

employees of the Department of the Army or the Depart-

ment of the Air Force. Such positions shall be outside the

competitive service, if, as a condition of employment, the

persons employed therein were, on the day before the

effective date of this Act, required to be members of the

Army National Guard or the Air National Guard

States Code, or prior corresponding provision of law,

performed before the effective date of this Act shall be

included and credited in the determination of length of

service for the purposes of leave, Federal employees

death and disability compensation, group life and health

insurance, severance pay, tenure, and status. This subsec-

tion shall apply only in the case of persons who perform

service under section 709 of title 32, United States Code,

on or after the effective date of this Act.

App. 76

(d) Annual leave and sick leave to which a techni-

cian was entitled on the day before the conversion of his

position, as provided in subsection (b) of this section,

shall be credited to him in his new position.

is amended -

(1) by striking out “or” at the end of clause (1)

(D);

(2) by adding “or” at the end of clause (1) (E); and

(3) by adding the following new subclause (F) at

the end of clause (1):

“(F) the adjutants general designated by the Sec-

retary concerned under section 709(c) of title 32,

United States Code;”.

Sec. 5. (a) Section 8332(b) of title 5, United States

Code,?7 is amended -

(1) by striking out “and” at the end of clause (4);

(2) by striking out the period at the end of clause

(5) and inserting in place thereof “; and”; and

(3) by adding the following new clause:

“(6) employment under section 709 of title 32,

United States Code or any prior corresponding provi-

sion of law.”; and

(4) by adding at the end thereof the following:

“Service referred to in paragraph (6) is allowable

only in the case of persons performing service under

section 709 of title 32, United States Code, on or after the

effective date of the National Guard Technicians Act of

1968.”

36 5 U.S.C.A. § 2105{a).

37 5 U.S.C.A. § 8332(b).

App. 77

(b) Section 8334(c) of title 5, United States Code,38 is

amended by adding at the end thereof the following:

“Notwithstanding the foregoing provisions of this sub-

section, the deposit with respect to a period of service

referred to in section 8332(b) (6) which was performed

prior to the effective date of the National Guard Techni-

cians Act of 1968 shall be an amount equal to 55 per

centum of a deposit computed in accordance with such

provisions.”

amended by adding at the end thereof the following new

subsection:

“(1) In determining service for the purpose of com-

puting an annuity under each paragraph of this section,

45 per centum of

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