Opposition Brief — Even v. National Guard Bureau

+4 Office - Supreme Court, U.S.

FILED

~y) NOV 19 1984

No. 84-168

ALEXANDER L STEVAS:

wo

In the Supreme Court of the Hnited States

XCTOBER TERM, 1984

RAYMOND J. EVEN, PETITIONER

Vv.

NATIONAL GUARD BUREAU AND

JOHN A. JOHNSTON

ON PETITION FOR A WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS FOR

THE SIXTH CIRCUIT

MEMORANDUM FOR THE RESPONDENTS IN OPPOSITION

Rex E. Lee

Solicitor General

Department of Justice

Washington, D.C. 20530

(202) 633-2217

TABLE OF AUTHORITIES

Page

Cases:

Board of Regents v. Roth, 408 U.S. 564 ........ 5

Coalition for Responsible Regional Development

SS ree 5

Dillard vy. Brown, 652 F.2d 316 .........0eeee. 6

Mindes v. Seaman, 453 F.2d 197 ............ 3, 6

Nieszner v. Orr, cert. denied,

a SIONS Cay 5 > reg 6

Norris v. United States, 423 F.2d 695,

re EE ccc ckccccccecessss 5

Olim v. Wakinekona, 461 U.S. 238 ............ 5

Tennessee v. Dunlap, 426 U.S. 312 .......2005- 2

Thompson v. Stetson, cert. denied,

ee ae a oes 5

United States v. Summit Fidelity & Surety

RE re ee ee a 5

Constitution, statutes and regulations:

U.S. Const. Amend. V, Due Process

ET Rs eee’ t 4,5

ee EN Eo bb och bs cbck socae bode eeee 2

ee ai essa see enue 2

Pub. L. No. 85-861, § 28, 72 Stat.

hr Se ee ee ee as ne boda b ome 6

(I)

Il

Page

Constitution, statutes and regulations—Continued:

Air National Guard Regulations (A.N.G.R.):

§ 36-05 (Aug. 15, 1974) ...cccccccccees 1, 5, 6

pase. 13.a(10) .ccccccccccccsccscccccvecs l

§ 36-06 (Oct. 7, 19TT) ..ccccccccccccces 1, 5, 6

i SPPPrerrpere rrr ry rrr try rrr vr iT. l

para. LL.B) .ncccccccccsscscsceseesves 5

Inu the Supreme Court of the Hnited States

OCTOBER TERM, 1984

No. 84-168

RAYMOND J. EVEN, PETITIONER

V.

NATIONAL GUARD BUREAU AND

JOHN A. JOHNSTON

ON PETITION FOR A WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS FOR

THE SIXTH CIRCUIT

MEMORANDUM FOR THE RESPONDENTS IN OPPOSITION

Petitioner challenges the decision of the Michigan Air

National Guard not ‘to retain him as a member of the

Guard.

1. Air National Guard Regulations (A.N.G.R.) establish

a program of “selective retention” of officers who have

served more than 20 years and are eligible for retirement

pay. A.N.G.R. 36-05 (Aug. 15, 1974) provides in part that

“({ajll officers with 20 years of Federal service qualifying for

retirement pay * * * will be discharged unless specifically

recommended for retention by [the] appropriate board in

accordance with ANGR 36-06” (para. 13.a(10); C.A. App.

68a). A.N.G.R. 36-06 (Oct. 7, 1977) (Pet. App. E1-E11)

explains the selective retention policy as follows (para. 2;

Pet. App. E2-E3):

(1)

2

Membership 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 obligation

to serve in the active military service in the event of

mobilization or emergency, or at such other times as

the national security may require. A continuing pro-

gram of vitalization of the Air National Guard is essen-

tial 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 responsibil-

ity 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 qualifying service for retirement will be

reviewed each year for consideration of retention or

separation. This program will be achieved by con-

trolled attrition and selective retention of officers

** *

In 1981, after review by a Vitalization Board, the Michi-

gan Air National Guard determined not to retain petitioner,

who had served in the Guard since 1947. Petitioner was

honorably discharged from the Guard. Pet. App. C1.! Peti-

tioner had an opportunity to send a letter to the Vitalization

Board when it was considering whether to recommend his

retention but he had no right to appear in person before the

Board (ibid.).

2.a. Petitioner then brought this action in the United

States District Court for the Eastern District of Michigan,

contending that the discharge procedure denied him due

process. In alleging that he had an entitlement to continued

'This discharge automatically terminated petitioner’s employment as

a civilian technician with the Guard (Pet. App. Cl). See 32 U.S.C.

709(b) and (e)(1); Tennessee v. Dunlap, 426 U.S. 312 (1976).

3

service in the Guard, petitioner relied on a letter dated

January 24, 1973 and approved by the Secretary of the Air

Force, a copy of which is reproduced below (App., infra,

la-2a).

On cross motions for summary judgment, the district

court ruled against petitioner (Pet. App. B1-B4). The court

noted that petitioner’s “only claim is that [the] decision to

discharge him violated his constitutional right to due pro-

cess” (id. at B2). The district court stated that, in determin-

ing whether to “review” this claim, it would consider the

four factors specified by Mindes v. Seaman, 453 F.2d 197

(Sth Cir. 1971):

(1) “(t]he nature and strength of plaintiff's challenge to

the military determination”; (2) “[t]he potential injury

to the plaintiff if review is refused.” (3) “[t]he type and

degree of anticipated interference with the military

function;” and (4) “(t]he extent of anticipated interfer-

ence with the military function.”

Pet. App. B2, quoting 453 F.2d at 200 (brackets added by

the district court). The district court then stated that peti-

tioner mischaracterized the January 24, 1973 letter in sug-

gesting that it gave him an entitlement to be retained in the

Guard (Pet. App. B3): “We find that the letter clearly states

the intention to retain such technicians until age sixty only if

they remain ‘fully qualified’ under all regulations, including

the regulation under which [petitioner] was recommended

for nonretention.” The court then reasoned as follows (id. at

B3-B4):

We have concluded that we must deny [petitioner’s]

request that we review the decision to discharge him.

[ Petitioner’s] due process claim is somewhat tenuous at

best. [Petitioner] was honorably discharged with full

military and civil service retirement benefits and, there-

fore, he will suffer little potential injury. Most im-

portantly, we find that review of this decision would

4

interfere substantially with the military’s duty to insure

that a viable armed forces are available to meet any

emergency that might arise. Finally, we believe that

military authorities are better equipped to make this

decision. We have no basis for making a determination

that an individual is suitable for retention in the armed

forces.

b. The court of appeals affirmed (Pet. App. C1-C2). It

first held that petitioner’s interest in being retained in the

Guard was not protected under the Due Process Clause (id.

at C2; citation omitted):

[W]e are not persuaded that the communication from

the Chief of Staff of the Air Force to the Secretary of

the Air Force was sufficient under the circumstances to

create an expectation of employment amounting to a

property interest protectable under the Due Process

clause of the Fifth Amendment. As [the district court]

noted, “the letter clearly states the intention to retain

such technicians until age 60 only if they remain ‘fully

qualified’ under all regulations, including the regula-

tions under which [petitioner] was recommended for

non-retention.” Thus, [petitioner’s] severance from the

National Guard did not require the procedural safe-

guards which would otherwise attend the termination

of a property interest in the form of a legitimate expec-

tation of continued employment. See Perry v. Sin-

dermann, 408 U.S. 593, 599-603 [(1972)].

The court of appeals then briefly remarked (Pet. App. C2):

“Also, we do not believe the district court erred in applying

the test enunciated by the Fifth Circuit in Mindes v. Sea-

man * * _ ead

3.a. Petitioner’s principal contention (Pet. 6-9) is that

this Court should decide whether his procedural due pro-

cess claim is reviewable. But even if petitioner were correct

in asserting that his claim is reviewable, he would not be

5

entitled to relief. Both courts below — the district court

implicitly,2 and the court of appeals explicitly — rejected

petitioner’s claim on the merits, and their conclusion was

correct.

Petitioner may invoke the protections of the Due Process

Clause only if his interest in continued membership in the

Guard is a protected “liberty” or “property” interest. Peti-

tioner makes no claim that A.N.G.R. 36-05 or 36-06 creates

such an interest, and no such claim would be plausible; the

decision whether to retain a member of the Guard is made

by the State Adjutant General on the recommendation of

the Vitalization Board (A.N.G.R. 36-06, para. I1.b(1)), and

the regulations “place no substantive limitations on [the

Adjutant General’s] discretion” (Olim v. Wakinekona, 461

U.S. 238, 249 (1983); see Board of Regents v. Roth, 408

U.S. 564, 577-578 (1972)). They therefore create no liberty

or property interest.

Petitioner instead relies on the January 24, 1973 letter.4

But petitioner suggests no reason for believing that that

2The district court stated that petitioner’s claim was “somewhat

tenuous at best” (Pet. App. B3) and it specifically found that the sole

basis of petitioner’s claim — the January 24, 1973 letter —- did not

confer on petitioner an interest protected by the Due Process Clause

(ibid.).

3In Thompson v. Stetson, cert. denied, 454 U.S. 823 (1981), the

Court declined to consider a claim by a member of a state Air National

Guard that his nonretention decision violated the Due Process Clause.

Petitioner’s claim on the merits is indistinguishable. We are serving

counsel for petitioner with a copy of our memorandum in opposition in

Thompson (No. 80-1887).

4Petitioner also discusses (Pet. 4) a 1970 opinion letter by the legal

adviser to the National Guard Bureau. As petitioner acknowledges

(Pet. 4n.*), this letter was not a part of the district court record and was

not submitted to the court of appeals until after its decision. It therefore

should not be considered by this Court. See, e.g., Coalition for Respon-

sible Regional Development: v. Brinegar, 518 F.2d 522, 527 (4th Cir.

1975); Norris v. United States, 423 F.2d 695 (9th Cir.), cert. denied, 400

6

letter — which only “recommend{s]” certain actions and

does not modify any regulation — should take priority over

the regulations that specifically govern non-retention. More-

over, the letter is, on its face, not addressed to officers

subject to the non-retention policy of A.N.G.R. 36-06;

instead, the letter recommends that the Air Force not frus-

trate expectations that may have arisen because of Pub. L.

No. 85-861, § 28, 72 Stat. 1562 (Pet. App. Fl), which

exempts certain officers from removal that would otherwise

be required by certain “provision{s] for mandatory promo-

tion in chapter 837 of title 10, United States Code * * *.” As

the courts below noted, the letter specifically does not

recommend the retention of members of the Guard who are

not otherwise “fully qualified,” and petitioner was deter-

mined not to be qualified for retention under A.N.G.R.

36-05 and 36-06.°

U.S. 838 (1970); United States v. Summit Fidelity & Surety Co., 408

F.2d 46, 48 (6th Cir. 1969). The opinion has been in existence for 14

years, and there is no reason for an exception to the well-established

rule that evidence must be submitted to the trial court to be considered

on review.

In any event, the opinion letter is just that — a statement of the legal

adviser’s opinion — and does not purport to modify any regulations.

Moreover, it appears to be addressed to the same question as the

January 24, 1973 letter (see page 6, infra).

5Petitioner asserts (Pet. 8-9) that there is a conflict between the

decision below and Dillard v. Brown, 652 F.2d 316 (3d Cir. 1981), over

the extent to which military determinations are reviewable. As we

explained in our memorandum in opposition in Nieszner v. Orr, cert.

denied, 460 U.S. 1022 (1983) (No. 82-1007), the differences between the

Third Circuit's approach in Dillard and the approach of those courts of

appeals that have followed Mindes v. Seaman, supra, may be more

apparent than real. (We are serving counsel for petitioner with a copy of

our memorandum in opposition in Nieszner.) In any event, all Dillard

purports to require is that a court review certain military determina-

tions on the merits instead of considering them nonreviewable (see 652

F.2d at 323), and the courts below rejected petitioner's claim on the

merits. Petitioner therefore cannot invoke any conflict as a reason for

review by this Court.

7

b. Finally, petitioner, citing black letter law on the grant-

ing of summary judgment, asserts that there were material

issues of fact in this case. But petitioner himself moved for

summary judgment, and he does not identify any factual

evidence in the record that would enable him to show that

he has a protected property interest. This fact-bound claim

therefore plainly does not merit review by the Court.

It is therefore respectfully submitted that the petition for

a writ of certiorari should be denied.

Rex E. LEE

Solicitor General

NOVEMBER 1984

DOJ-1984-11

APPENDIX

DEPARTMENT OF THE AIR FORCE

OFFICE OF THE CHIEF OF STAFF

UNITED STATES AIR FORCE

WASHINGTON, D.C. 20530

24 JAN 1973

SUBJECT: Extension of Officer Air Technicians Employed

Prior to | July 1955

TO: SAF/OS

1. On I July 1955, the effective date of ROPA, the Air

National Guard had 656 officers including 12 generals

and 53 colonels employed as air technicians. Attrition

and promotions have reduced the total pre-1955 tech-

nicians to 339 but increased the number of generals to

20 and colonels to 134. These officers have been under

the impression since | July 1955 that Section 28, Public

Law 85-861 assured them of retention in their civilian

employment until age 60. This opinion also prevailed

in the National Guard Bureau and the Air Force.

2. On 13 October 1972, AF/ JAC ruled that PL 85-861

did not extend the authority for retention above the

grade of lieutenant colonel but pointed out that such

authority was delegated to the Secretary of the Air

Force in 10 USC, 885I(c).

3. In light of the policy followed over the past 17 years

under the presumed authority of PL 85-861, I recom-

mend that where the officer is fully qualified to hold his

military position and properly performing his techni-

cian job, he should be retained in his technician

employment. I further recommend that this determina-

tion be made by the Secretary of the Air Force with

2a

regard to general officers and by the Chief, National

Guard Bureau for officers of other grades.

/s/ [John D. Ryan]

Chief of Staff

Approved:

/s/ [Robert Seamens]

Secretary of the Air Force