Petition for Writ of Certiorari — Bowen v. Oistead

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| Supreme Court, U.S.

. , ti. & DO

No. OZ 1731 APR 2 11998

OFFICE OF THE CLERK

In The

Supreme Court of the United States

October Term, 1997

GARY W. BOWEN,

Petitioner,

Vv.

KEITH OISTEAD; UNITED STATES OF AMERICA;

HUGH L. COX II; DAN E. DENNIS;

KENNETH M. TAYLOR; STATE OF ALASKA,

Respondents.

On Petition For Writ Of Certiorari

To The United States Court Of Appeals

For The Ninth Circuit

PETITION FOR WRIT OF CERTIORARI

Pat K. Bowen

Counsel of Record

100 E. Thousand Oaks Blvd. Ste. 110

Thousand Oaks, CA 91360

(805) 379-1211

Attorney for Petitioner

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

OR CALL COLLECT (402) 342-2831

QUESTIONS PRESENTED

1. Where the Constitution of the United States spec-

ifically reserves to the states the power to govern the

militia, where Congress has specifically acted to confirm

that the states have control over the appointment of offi-

cers and the termination of officer appointments in the

National Guard (militia), where this court has confirmed

that the National Guard (militia) has, at any one time,

only one status (either State or federal), and where the

states exercise exclusive power of appointment and ter-

mination of appointments of officers in the National

Guard (militia), can the federal courts prohibit the states

from providing remedies to militia officers who are

wrongfully terminated?

2. Where the military or the militia employ profes-

sionals (i.e. doctors, lawyers, etc.) on a career basis, based

on professional certification, not military expertise, and

where the purpose of their employment is based on their

private professional skills and the public necessity of

assuring compliance with the law, not military expertise,

is the assessment of a professional officer’s professional

qualifications and suitablity an “inherently military deci-

sion” and thus exempt from judicial review?

3. Given Congress’ express recognition of exclusive

state control over the the appointment and termination of

officers in the National Guard (militia), does the Feres

Doctrine preclude contractual claims in state court to

enforce the terms of a written contract between the state

and an individual member of the state militia, merely

because the contract related to service in the state militia?

QUESTIONS PRESENTED - Continued

4. If Bowen was a member of the armed forces of

the United States for purposes of Feres, can he be

deprived of the protections afforded all other active duty

and reserve officers of the armed forces of the United

States without violating his rights to due process and

equal protection; and is compliance with the applicable

regulations subject to court review?

ili

PARTIES

The parties are Petitioner/Plaintiff, Gary W. Bowen,

and Respondents/Defendants Keith Oistead, United

States of America', rlugh L. Cox, III, Dan E. Dennis,

Kenneth M. Taylor, and the State of Alaska.

! Although Bowen's complaint alleges that those defen-

dants who were members of the United States Armed Forces

were acting outside the course and scope of their military

duties, the United States Attorney for Alaska certified, pur-

suant to 28 U.S.C. 2679(d)(1), that they were acting within the

course and scope of their military duties. Bowen denies this. It

is far from clear how Air Force Officers could properly be

involved in state personnel proceedings. It is equally unclear

how a federal civilian employee, acting as a member of the

militia, was “officially” involved in state personnel decisions in

a federal capacity. The lack of a trial precluded examining

offered evidence on this point and there is a conflict in the

evidence concerning these conclusions. The United States was,

however, substituted for the individual Defendants Gillean,

King, Williams, Pearson, and Gamboa. Bowen has never con-

ceded that these individuals are entitled to the protections of

the Federal Employees Liability Reform and Tort Compensa-

tion Act of 1988 or that the declaration of the United States

Attorney is correct concerning their entitlement. It is Bowen's

contention that these individuals were acting outside the

course and scope of their official duties and that the United

States would be divested of jurisdiction if an evidentiary hear-

ing were held on this issue.

TABLE OF CONTENTS

Page

CAF eae FOIA OR Nae d eo So aad aewienem ieee i

SPREE FRR SGRE Lae UCR ee ees 68 044 OES EF ONT ili

Bg By 2 BYR ReS Birits rare, Se agate gl ut ae ye Me ae 1

pe) 28 ag SG Pe Spl etie ietn Se Sem Ler MLO Gey pour! Ge 1

CONSTITUTIONAL, STATUTORY, AND REGULA-

SAD SAIN sob ae KR EOS OS AE ad oe ROR OES EES 2

SRA ECETE CON SESE Ne oa ok deans eae ne deems 3

WHY THE PETITION SHOULD BE GRANTED..... 11

I. THE DISTRICT COURT AND THE COURT

OF APPEALS LACKED JURISDICTION

OVER CLAIMS AGAINST THE STATE OF

ALASKA AND ITS EMPLOYEES .......... 13

Il. THE OPINION BELOW IS CONTRARY TO

THE CONSTITUTION, THIS COURT’S

PRIOR RULINGS, ACTS OF CONGRESS,

AND IS IN CONFLICT WITH A RULING

ON THE SAME SUBJECT BY THE ALASKA

EE NaI GI IRA 64a ek nf kde bd KS He Re whe 14

il. THE OPINION BELOW IMPOSES THE

FERES DOCTRINE ON THE STATES WITH-

OUT AWARDING THE MEMBERS OF THE

MILITIA PROTECTIONS AFFORDED THE

MEMBERS OF THE MILITARY UPON

WHICH FERES & BASED. .5 00 66 hes eee 18

IV. THE IMPACT OF THE DECISION IS SO DIS-

PROPORTIONATE AS TO REQUIRE

AT 89 Ra rahe he halk as REAR a 22

V. THE PETITION SHOULD BE GRANTED TO

"NSURE THE INTEGRITY OF THE JUDI-

CIAL PROCESS IN THIS AND SIMILAR

GPRM es hh eG ERE SOR Esa he ner etakrens che 23

CAPPS is ke ewan bas Pe ceeak Lee eieesea bees 26

TABLE OF CONTENTS -— Continued

Page

APPENDIX A — Opinion of the Ninth Circuit..App. 1

APPENDIX B - Order Denying Petition for

ny) ee rE Sn Cer apps arr ne App. 15

APPENDIX C —- Opinion of the District Court. .App. 16

APPENDIX D - Opinion of the Supreme Court of

Pe AL SI cig e BAP OLe g's ape M cating Nil Et ean G MURINE Lo App. 28

APPENDIX E - Excerpts of Correspondence....App. 60

APPENDIX F - Constitutional, Statutory and Reg-

latory: Provisions ... 06.65 cecceceeseresenes App. 64

—

TABLE OF AUTHORITIES

Page

SupReEME Court Cases

Berger v. United States, 295 U.S. 78 (1935)............ 23

Chappell v. Wallace, 462 U.S. 296, 103 S.Ct. 2362

FOODS Fis eco ee ey ep aes Ree er tures 25

Employees of the Dept. of Public Health & Welfare,

State of Missouri, et al. v. Department of Public

Health & Welfare, State of Missouri, 411 U.S. 279,

36 L.BG.2e 258, FS SELL BOWE CAPT oi sins vicdactsns 13

Feres v. United States, 340 U.S. 135, 71 S.Ct. 153, 95

LAR “Oe REDD cc noid kck pare aeneewas cones passim

Maryland, for the Use of Levin, et al. v. United States,

381 U.S. 41, 85 S.Ct. 1293, 14 L.Ed.2d 205 (1965)

bare oie Se de ONG U RE Oe EEN OA OO RE 45 3 DO, 22

Perpich v. Department of Defense, 496 U.S. 334, 110

L.Ed.2d, 312, 110 S.Ct. 2418 (1990)..... 14, 15, 16, 17

Scheuer v. Rhodes, 416 U.S. 232, 40 L.Ed.2d 90, 94

SAA. BOGS CIF es vis nc aa ek pin Ss bane Kade se eet ea 23

FepERAL Cases

Argabright v. United States, 35 F.3d 472 (9th Cir.

REFERS +h en ccbasard bs sua¥h MARDER S wey ERE eae eae 24

Bowen v. Oistead, et al., 125 F.3d 800 (9th Cir. 1997) ..... 1

National Wildlife Federation v. Espy, 45 F.3d 1337

COUR CBR. TOPs cas Satake eacrekdebebeet ans etiaees 24

Parks School of Business, Inc. v. Symington, 51 F.3d

ROBO (90 Coe, TIE. sea cae se cite a oh ea eh es 24

Uhl v. Swanstrom, 79 F.3d 751 (8th Cir. 1996)........ 18

TABLE OF AUTHORITIES —- Continued

Page

State Cases

Ables v. State of California, 179 Cal.App.3d 328

SER. asc gcka Pine a ewe DNR we wae Rasa a eres Bie 7, 16, Z@

Emsley v. Army National Guard, 106 Wn.2d 474

PROUER 3 ws 4 KURO cba t hake Re Laneanenekeeten 7, 36, @2

State of Alaska, Dept. of Military and Veterans Affairs

v. Gary W. Bowen, cite unavailable ................. l

CONSTITUTION

U.S. Constitution Article 1 Section 8.......... zz 14 1

U.S. Constitution Amendment 5... 6.csscerccerereenes 2

U.S. Constitution Amendment 11............... > & 5

STATUTES AND REGULATIONS

Federal

10 United States Code §801 et seq.................2, 16

1G United Staten Come BOs ic eec cc cesciciensnes y Se

ee Eee CO RT nk anik vised ebiedeviewaveen 2

1G Talted States Code BiG1IG. «nce diwcervdeesens 2

Om Be oh. og |}. Sr rt en mere mae J

10 United States Code $12401.........ccescccscnes y a vg

ee go a” 8. Sear ered ie ty

10 United States Code §12405................505.. y eh Ys

10 United States Code §12682.................008. 2, 10

1G United States Code SiZG0S. oi. ce ceca cient eed 2, 10

Vill

TABLE OF AUTHORITIES ~ Continued

Page

10 United States Code $14902.........:csccevenees 2, 10

10 United States Code §14903..................0.. 2, 10

10 United States Code §14904.................04.. 2, 10

Be RU Ne Te Bea ki ie Oi aii ei eases 2

2B UDR SOOO Te ETO ok bed hd awe weaebe estes 2

Ze TI BUNGE Ce: BAe 6 ck besos dectninsdeanrvec 2

2B Ueto, Beaten CGO BEGG Ee ood vce cicnevenewenaces 2

28 United States Code §1446(a) .................... Me

ae Tne TN Ee NT Bila ko hove ge nscws pawadaners 2

fe Go Be Ye Se rere Pee + a

28 United States Code §2679(d)(1).................. ne

32 United States Code §101(12) ................ » Ta AS i

Be UNO UN KU BUELEDD 6k vc ven dccvecaedaeea’s 2

32 United States Code §324(b)................. 2, 6, 15

De COS SUNN Le BOs sos ib esos devdeedencess 2, 8

Defense Authorization Act of 1994, P.L. 103-337...2, 10

32 Code of Federal Regulations §564.52(b)......... Pe 2

Pes Se AP AS bess awe ad takes sauk cade A

Ait FORGE ROMUINOT SOI. ack csi e vec ewrececeuceans 2

Als Foved TRA Fir 8Giads 6 eis cee esis cncaeades 2

Air Force Regulation 36-016. ..... 5.00. cccsceseesons: 2, 6

TABLE OF AUTHORITIES — Continued

Page

STATI

rs Cr. SO ee ne op cua We een kudewek a

Alaska Statutes 26.00.0680. .....ccccccecwcecas 2

FIROE TMCIOR ZOD ATU: os onc kncs vepeasees ea ¢atuis See

PRP Te POR 8 bs ov bs oh 609 bed ee bede 2

Alaska Statutes 26.05.3500, .... 6c cic ec vcceeen ae

Air National Guard Regulation 110-6..............: 3, a1

Air National Guard Regulation 35-03 §6-5(a) ......3, 17

Air National Guard Regulation 35-03 §6-5(c) ......... 3

Air National Guard Regulation 35-03 §6-10(d)...... 3, 9

Air National Guard Regulation 36-016.......... aid aka

Pani Aeon 2 Alba aAe a fe bla” madi ve oy s

WOES we Avy

PETITION FOR WRIT OF CERTIORARI

OPINIONS

The opinion of the United States Court of Appeals for

the Ninth Circuit is reported in Bowen v. Oistead, et al., 125

F.3d 800 (9th Cir. 1997). A copy of the slip opinion is

annexed hereto as Appendix A (“App. A”).

The order of the Ninth Circuit Court of Appeal deny-

ing rehearing is attached hereto as Appendix B (“App.

B”)

The opinion of the Federal District Court for the State

of Alaska is annexed hereto as Appendix C (“App. C”).

The opinion of the Supreme Court of Alaska in State

of Alaska, Department of Military and Veterans Affairs,

Alaska National Guard v. Gary W. Bowen, was decided

February 13, 1998, and will appear in the Pacific Reporter.

Citation is not yet available. A copy of the opinion is

annexed hereto as Appendix D (App. “D”).

JURISDICTION

The opinion of the court of appeals was filed on

September 12, 1997. A timely petition for rehearing was

denied by order filed January 22, 1998. A copy of the

‘order is annexed hereto as Appendix B (“App. B”). The

original action was filed in the Alaska Superior Court.

Alaska Superior Court Case No. 3AN-95-4398 Civil. The

District Court's jurisdiction was created pursuant to certi-

fication of the United States Attorney for the State of

Alaska pursuant to 28 U.S.C. §§1446(a) and 2679(d)(1).

The Petitioner disputes the correctness of the U.S. Attor-

ney’s certification, and therefore the jurisdiction of the

District Court. Bowen has always contended that this is a

state matter. The case was nevertheless removed to the

District Court pursuant to 28 U.S.C. §1446(a). Jurisdiction

of this court is invoked under 28 U.S.C. §1254.

CONSTITUTIONAL, STATUTORY

AND REGULATORY LAW

FEDERAL

U.S. Constitution Article 1 Section 8; U.S. Constitution

Amendment 5; U.S. Constitution Amendment 11; 10

United States Code §801 et seq.; 10 United States Code

§802; 10 United States Code §8379; 10 United States Code

§10110; 10 United States Code §10113; 10 United States

Code §12401; 10 United States Code §12403; 10 United

States Code §12405; 10 United States Code §12682; 10

United States Code §12683; 10 United States Code §14902;

10 United States Code §14903; 10 United States Code

§14904; 28 United States Code §1254; 28 United States

Code §1367; 28 United States Code §1446(a); 28 United

States Code §1346(b); 28 United States Code §1367.28; 28

United States Code §2671; 28 United States Code

§2679(d)(1); 32 United States Code §101(12); 32 United

States Code §101(19); 32 United States Code §324(b); 32

United States Code §3040; Defense Authorization Act of

1994, P.L. 103-337; 32 Code of Federal Regulations

564.52(b); FRPC Rule 12(b)(6); Air Force Regulation 30-30;

Air Force Regulation 36-14; Air Force Regulation 36-016;

Alaska Statutes 26.05.030; Alaska Statutes 26.05.060;

Alaska Statutes 26.05.070; Alaska Statutes 26.05.200;

Alaska Statutes 26.05.300; Air National Guard Regulation

ooh aay ait

awermiglra Ws aa 5st eure

hist ah Nl ox. «Nan soils 6B 29's

110-6; Air National Guard Regulation 35-03 §6-5(a); Air

National Guard Regulation 35-03 §6-5(c); Air National

Guard Reeulation 35-03 §6-10(d); Air National Guard

Regulation 36-016.

STATEMENT OF THE CASE

The Petitioner, Gary W. Bowen, was wrongfully ter-

minated by the State of Alaska Department of Military

and Veteran’s Affairs (DMVA) from his employment as

the legal advisor to the Alaska National Guard.' App. D.

Bowen had been appointed by the Governor of Alaska to

serve as the Staff Judge Advocate of the Alaska National

Guard (state militia). The position of Staff Judge Advo-

cate was created by state law. AS 26.05.300 et seq. Funding

for this position was provided pursuant to Full Time

National Guard Duty program,? which in essence provided

! For purposes of clarity, the state National Guard will be

referred to herein primarily by its constitutional title, “militia”

in order to avoid confusion with the National Guard of the

United States, which is the militia called into federal service.

The generic use of the term “National Guard” for both state and

federal status appears io have contributed to erroneous

concepts like simultaneous dual status or “A National Guard

member is on active duty when cailed to service by the United

States, and is on reserve duty when acting as a member of the

state’s National Guard”. Opinion of the Ninth Circuit at 11946.

cf. 32 U.S.C. §101(12). This dual status argument was

disapproved in Perpich v. U.S. but has been revived by various

courts of appeal, including the Ninth Circuit here.

2 There are actually four separate programs which are

sometimes collectively but erroneously referred to as “The

Active Guard/Reserve Program”; the Full-Time Air National

Guard program, the Full-Time Army National Guard program,

funding to the state to hire state employees in certain

critical areas. Bowen was employed by the state on a

contract basis and had been so employed for approxi-

mately 10 years. The contract was last renewed by the

State of Alaska in June, 1991 and was for the express term

of five (5) years.*

By regulation, Bowen's contract could only be termi-

nated, involuntarily, for: 1) “acts of misconduct... ”; 2)

“moral or professional dereliction”; 3) loss of professional

qualification; 4) substandard duty performance; 5) rac-

ism, sexism, or prejudice; 6) failure to maintain medical /

physical standards. ANGR 35-03. Par. 6-5(c). None of

these terms is defined in the regulation. None of these

criteria suggest that the participant may be terminated

due to a loss of confidence or a bad relationship. 1ER166.

The alleged basis for termination was:

1. That Bowen had failed to adequately

respond to an inquiry into alleged financial

irregularity.*

the Active Air Force Reserve program and Active Army Reserve

program.

3 The record reflects that the governor’s order provided

that Bowen was appointed as the legal advisor for a period of 5

years “unless sooner relieved by competent authority”. The

concept of being “relieved” is not the same as being

“terminated”. Had Bowen been ordered to federal duty, for

example, he would have been “relieved” of state duty. The

reverse would have occurred at the end of the federal service.

Thus, the governor’s order provided that Bowen could be

reassigned by competent authority. It did not permit

termination of the contract except as provided by state law.

* In 1992, Bowen was subject to a routine review of his

security clearance. During the investigation, Bowen’s “Top

2. That Bowen had failed to obtain a leave

control number for an approved leave.®

3. That Bowen failed to work on the “Mili-

tary Justice Project”.®

Secret” clearance was temporarily suspended pending

investigation of entries in Bowen’s credit report. The entry

concerned a disputed credit card charge(s). 1 ER 153 (Excerpt of

Record). The issue was resolved in Bowen’s favor and the “Top

Secret” clearance was reinstated. Although the militia had no

involvement in the clearance process, Gillean, in violation of

AFR 30-30 and Bowen’s right to privacy, directed Bowen to

provide him with the specifics so that he, personally, could

decide whether or not Bowen should pay the debt. Gillean did

not complain that Bowen did not cooperate with the security

agency, it is that Bowen would not disclose the specifics of his

personal finances to Gillean. 1 ER 155. Had Gillean been entitled

to this information, he could have gotten it through official

channels. That he was not so entitled is reflected in 1 ER 155

para. 2 indicating disclosure was permitted only to the AG and

the Commander.

> Bowen took approved Christmas leave. So did the leave

clerk. It was customary for the leave clerk to complete the

paperwork when he/she returned from leave. The record

reflects that Bowen was reprimanded for violating an informal

“policy”, not the rule which required his supervisor to obtain

the control number. 1 ER 164. By regulation, the control number

could not be obtained by the person taking leave.

preparation of the state military justice system in 1991. This was

a state matter. 10 U.S.C. §802. A.S. §26.05.300 et seq. Gillean

intercepted the proposed regulation before it reached the

governor's office and attempted to modify it, by whiting out

portions that might have applied to him. His attempt at

modification was frustrated when his actions were discovered

and the regulation was implemented without change. The state

military justice system was implemented by order of the

governor on 31 March, 1992. In an attempt to delay

The ultimate question was, are these allegations true,

and if so, do they justify termination of Bowen’s contract

of employment? Officers in all branches of the armed

forces of the United States, both active and reserve, have

the right to a pretermination hearing. See e.g. AFR

36-016. By regulation militia officers were also entitled to

a hearing. ANGR 36-016 Termination of militia offers is a

matter of state law. 32 U.S.C. §324(b). Alaska state law

required a pretermination hearing as a prerequisite for

termination of a state employee based on “misconduct”.

App. D. Bowen requested a hearing and asked the

National Guard Bureau, DoD, to intervene. DoD replied

that Bowen’s termination was exclusively a state matter,

and that federal law did not permit the military to inter-

fere. 2 ER 540. App. E. Gillean and other respondents

refused Bowen’s request. Bowen was, instead, summarily

terminated by state militia authorities on Gillean’s recom-

mendation.

Those sitting in judgement of Bowen were not impar-

tial triers of fact. Gillean and his superiors had decided

what they wanted to do prior to Gillean’s recommenda-

tion. 1 ER 155. If reviewed, available evidence would also

show that some of the militia respondents had private

implementation, Gillean assigned Bowen to prepare a further

“plan of action” without any direction concerning what was

expected. Since the system was in effect, the assignment of a

plan of action was odd at best. When Bowen attempted to obtain

direction, he was told, in effect, to “figure it out”. When he

submitted the project, it was rejected without citing the specifics

of the rejection. It was simply “unacceptable”. It is noteworthy

that Gillean, who initiated the action, did not include this as a

basis for termination in his recommendation. 1 ER 166.

business relationships and obvious conflicts of interest.

For example, respondent Dennis, in his civilian capacity,

was respondent Gillean’s attorney, and partner in a fish-

ing boat. In the militia, Dennis was Taylor’s commander.

Because the termination decision was a state action,

Bowen sought review in the Alaska Superior Court alleg-

ing that he had been improperly terminated. The superior

court agreed, found that Bowen was entitled to a preter-

mination hearing if he was to be discharged for “miscon-

duct”, reversed the termination decision, and sent the

case back to the DMVA. The State appealed. The Alaska

Supreme Court affirmed. App. D.

While the Alaska appeal was pending, and in order

to preserve the statute of limitations on his remedial

claims, Bowen brought an action in the Superior Court

for the State of Alaska against the State of Alaska for

damages for breach of contract, and against certain

named individual defendants for damages on various tort

theories. Bowen did not sue the United States, nor did he

assert any federal entitlement or any federal basis for

relief.”

None of the Judge Advocate officers of the United

States Air Force, were assigned to the Alaska National

Guard, tne State of Alaska, or the National Guard Bureau

of the Department of Defense and their assistance was

7 Bowen’s constitutional claims were based on the

Constitution of the State of Alaska. Bowen’s tort claims against

the State of Alaska and the individual members of the Alaska

militia are supported by Maryland, for the Use of Levin, et al. v.

United States, supra, Emsley v. Army National Guard, supra, and

Ables v. State of California, supra.

obtained after the National Guard Bureau had advised

the state that no federal assistance would be forthcoming.

App. E, 32 U.S.C. §3040. One defendant was a civilian

employee of the federal government whose federal duties

did not involve supervising Bowen. Bowen’s complaint

alleged that these defendants were acting outside the

course and scope of their military or federal duties in

committing the tort(s) attributed to them. The U. S. Attor-

ney for the State of Alaska caused the case to be removed

to the Federal District Court on his certification, based on

information then known to him, provided by the Defen-

dants that the federal military officers and the federal

civilian employees were acting within the course and

scope of their federal military duties®. Bowen moved to

disqualify the Department of Justice. 1 ER 353.

At no time did the court acquire jurisdiction over the

action against the state. Such jurisdiction is precluded by

the Eleventh Amendment.

On motion, prior to Respondent’s answering, and

without converting the motion to a motion for summary

judgment, the District Court pursuant to FRCP Rule

12(b)(6) dismissed the entire case on the basis of Feres v.

United States, (1950) 340 U.S. 135, 95 L.Ed. 152, 71 S.Ct.

® The evidence would show that the Respondents, like

Bowen, sought the assistance of the National Guard Bureau at

DoD and that, like Bowen, they were advised that Bowen’s

termination was exclusively a matter of State law. There is no

evidence that the military officers in question were authorized,

or legally could be authorized to participate in or interfere with

a state function. Bowen asserts that the evidence would show

that their participation was neither properly authorized nor

legal.

Rites See

153, finding Bowen’s claims nonjusticiable. The Ninth

Circuit affirmed.

The Evidence: Extensive documentation was filed by

Bowen and is contained in the Excerpt of Record (“ER”).

One of Bowen’s complaints is that the procedure utilized

deprived him of the opportunity to present evidence and

examine witnesses under oath. The Ninth Circuit relied

exclusively on Bowen’s status as a member of the

National Guard. Opinion at 11953, App. 9. All of the

courts have found, and Petitioner agrees, that Bowen

was, at all relevant times, an employee of the State of

Alaska. He was supervised, at all relevant times, by other

employees of the State of Alaska. He is a licensed attor-

ney, hired as an attorney. He was terminated by officials

of the State of Alaska. Bowen was terminated without

being provided a required pretermination hearing to

determine whether the allegations of “misconduct” were

true. The case was dismissed on motion prior to discov-

ery, prior to answers, virtually without evidence.

Damages: The damages Bowen suffered were and

remain severe. 1 ER 72-76. The Alaska Supreme Court

confirmed that Bowen’s liberty interests were impaired

and did not reach the property interest issue. More than

16 years of his practice was government related but

because he had been terminated for “misconduct”, Bowen

was unable to find work in Alaska or in the government

sector. Had he been allowed to complete the contract then

in effect, his retirement based on active service would

have vested for all practical purposes. ANGR 35-03

§6-10(d). Had he been allowed to use his accrued leave,

Bowen would have qualified for these benefits, based on

part-time service, at age 65. The Respondents, by violat-

ing the applicable regulations, prevented Bowen qualify-

ing in either category.

Issues: The issues in this case require a determina-

tion of the status of all the parties, a determination of

their authority to act, and the amount of due process

necessary to protect liberty and property interests of the

Petitioner. Within that framework,? Bowen asks: 1) By

what authority does the District Court prohibit state pro-

ceedings between the State of Alaska and one of its

employees? 2) By what authority do the alleged federal

parties become officially involved in state proceedings? 3)

Can an attorney be wrongfully terminated as a matter of

° After Bowen’s discharge, Congress enacted Defense

Officer Personnel Management Act (DOPMA) as part of the

Defense Authorization Act of 1994, P.L. 103-337, which now

requires for reserve officers virtually all of the substantive and

procedural due process rights requested by Bowen as a

prerequisite to termination. See 10 U.S.C. §§14902, 14903, 14904,

12683. 10 U.S.C. §12682 expressly prohibits involuntary

separation without a hearing of officers with more than 5 years

of service. Bowen had over three times that minimum. Virtually

all of these safeguards were prescribed by regulation and in

practice as DoD policy at the time Bowen was terminated. This

assumes, of course, that Bowen was a federal “Reserve” Officer

as the Ninth Circuit found, not a State officer as the Alaska

Supreme Court found. He was entitled to a pre termination

hearing on the merits in either case. The essence of this case is

that the Alaska militia leadership denied Bowen the rights of a

reserve officer because of his state status, at the same time

denying his rights as a state officer because he was in a

“federal” program. The Alaska leadership was assisted by Air

Force legal personnel even though such assistance had been

officially refused and they had been referred to the Alaska

Attorney General for assistance. (App. E).

military discretion, at the expense of his liberty and prop-

erty interests? 4) When a militia regulation specifically

provides that an officer’s employment can be terminated

only for specified causes, are the courts precluded from

enforcing the regulation?

WHY THE PETITION SHOULD BE GRANTED

This case presents an ideal opportunity to clarify the

application of the Feres Doctrine and the relationship

between the militia, the military and between profes-

sional soldiers and members of the Uniformed Profes-

sions who practice in the military.

The law concerning the rights of members of the

militia is not a mystery for the states. They govern the

militia pursuant to their sovereign powers. It is not a

mystery for the DoD. DoD expressly leaves it to the

states. It is not a mystery to Congress. Congress leaves

the appointment and termination of officers to the states.

It leaves disciplining the militia to the states. Unfor-

tunately, interference by the federal courts in the consti-

tutional and statutory scheme leaving these matters to the

states has the effect of making the law confusing,

unworkable and unjust. If Feres prevents double recovery

by the U.S. serviceman, it is being used to deny any

recovery by the state militiaman. If the Feres Doctrine is

not limited to the federal government, then it should be

abolished as infringing on the powers granted to the

states and as an impediment to justice.

If Feres is to be applied to the professions in the

military, they deserve a special status distinct from the

professional soldier. A uniformed lawyer is not retained

for his combat skills, but for his legal skills. His work is

not “inherently military”, but inherently legal. His duty is

to represent his client, which may include representing

soldiers against the command structure, or representing

the people against abuses of power. He is required to

counsel against unlawful conduct, and to report viola-

tions of law. The government lawyer is not a rubber

stamp assigned to provide plausible deniability when the

rules are deliberately broken. The Rules of Ethics should

supercede command control. The records in this case

provide ample evidence of the role of the legal officer as

an advisor. It also demonstrates command disregard of

advice it didn’t like. For example, the Alaska command

structure fired their lawyer over his objection. Even

under fire, Bowen did not deny that he could be properly

fired if the facts justified it. He merely demanded that it

be done properly and in accordance with state law. The

Alaska Supreme Court has confirmed that his was the

more sound advice. The Alaska National Guard leader-

ship asked the Departments of the Army and Air Force,

through proper channels for legal help, and were both

refused and referred to the state attorney general. App.

E-61 thru 63. No explanation is offered concerning the

lack of involvement of the Alaska Attorney General or of

the part-time judge advocates belonging to the Guard.

Instead, the evidence is uncontroverted that members of

the Air Force Judge Advocate Generals Corp., outside of

official channels and contrary to the response of the joint

National Guard Bureau Judge Advocate, intervened in a

matter that belonged exclusively to the State of Alaska. A

ruling that a lawyer’s function is inherently military sim-

ply should not be made, given the ethical requirements of

the profession, but if made should be affirmed directly by

the Supreme Court.

THE DISTRICT COURT AND THE COURT OF

APPEALS LACKED JURISDICTION OVER CLAIMS

AGAINST THE STATE OF ALASKA AND ITS

EMPLOYEES

This case involved claims against the State of Alaska,

individual state employees, and federal employees acting

in their private capacity. Federal jurisdiction was based

on The Federal Employee’s Tort Liability Reform Act, 28

U.S.C. §2679. Even assuming, arguendo, that the claims

against the federal employees provided a basis for federal

jurisdiction in spite of the allegation that their acts were

performed in a private capacity, it did not provide juris-

diction as to the state or the non-federal defendants. U.S.

Constitution, Amendment Eleven. Employees of the Dept. of

Public Health & Welfare, State of Missouri, et al. v. Depart-

ment of Public Health & Welfare, State of Missouri, 411 US.

279, 36 L.Ed.2d 251, 93 S.Ct. 1614 (1973). Once the case

was dismissed as to the federal parties, the district court

was obligated to remand the action against the State of

Alaska to the Alaska Superior Court.

Il.

THE OPINION BELOW IS CONTRARY TO THE CON-

STITUTION, THIS COURT’S PRIOR RULINGS, ACTS

OF CONGRESS, AND IS IN CONFLICT WITH A RUL-

ING ON THE SAME SUBJECT BY THE ALASKA

SUPREME COURT

In addition to prohibiting litigation against a state in

federal court, the Constitution provides a clear distinc-

tion between the military and the militia. U.S. Constitu-

tion, Article 1, Section 8. The “military” is defined as the

U.S. armed forces. The “militia” is the State forces. This

court in Perpich, clarified that the National Guard is mili-

tia unless it is in federal service. Perpich, infra, S.Ct. at

2419.

Congress has full authority over the military, and

may provide for organizing, arming, and the disciplining

of the militia, but the states govern the militia. U.S.

Constitution, Article I, Section 8. In Perpich v. Department

of Defense, (1990) 496 U.S. 334, 110 L.Ed.2d 312, 110 S.Ct.

2418, this court purported to abolish the concept that the

members of the militia had simultaneous federal and

state status. See also Maryland, for the Use of Levin, et al.,

381 U.S. 41, 14 L.Ed.2d 205, 85 S.Ct. 1293 (1965). In the

Maryland case this court announced that officers of the

Maryland National Guard were state employees even

though they were federally funded and were required to

conform to strict federal requirements of training. Based

on state appointment and immediate control exercised

over them by state authorities it was “apparent” that they

were state employees. Maryland, for the Use of Levin, et al.

v. United States, supra, 381 U.S. at 48. The court also

expressly recognized the probative value of the adminis-

trative practices of the Defense Department in determin-

ing status, (Id. 52) and remarked on the effect of the

state’s sovereign immunity. Id. 53 fn.39. The Ninth Circuit

opinion, in comparison, finds that Feres applies because

of the substantial federal involvement with the guard.

App. 10. The lower courts, as the Ninth Circuit did here,

generally ignore Maryland and Perpich and continue to

hold that Feres applies to the militia, when not in federal

service, because as state militia they are a federal reserve.

From a constitutional perspective, none of the cases relied

upon by the Ninth Circuit or the District Court involve

purely militia issues. In each case, there was a finding of

federal military supervision of the conduct, federal status

of the guard or a guardsman, or an assertion of federal

rights, either constitutional or statutory. In the instant

case, the Ninth Circuit incorrectly recites that Bowen

sued the United States when he did not, it indicates that

he was serving in a federal capacity when he was not,

according to the Constitution Congress and the Depart-

ment of Defense.

The Ninth Circuit Opinion intrudes into an area

expressly left to the state legislatures and state courts.

The Constitution reserves the role of governing the mili-

tia to the states and allows Congress to govern only that

part of the militia that is in federal service (i.e. the

National Guard of the United States). U.S. Constitution,

Article 1, Section 8. Congress arms and prescribes train-

ing. Congress has not attempted to govern the militia and

has expressly left the appointment and termination of

officers to the states. 32 U.S.C. §324(b). The military

departments of the United States acknowledge that they

have no authority over the militia and leave management

of the militia to the states. App. E. The states, in fact,

govern the militia, including the full time militia. The

Alaska Supreme Court Opinion demonstrates the ability

of that court to properly analyze its own state law. Con-

gress understands the distinction between “governing”

and providing for the discipline of the militia. The impo-

sition of discipline is distinct from providing for military

discipline. Discipline of the militia is also a state function.

The Uniform Code of Military Justice is expressly inapplica-

ble to the National Guard not in federal service. 10 U.S.C.

§§801 et seq.

The Ninth Circuit opinion also ignores the critical

inconsistency in holding that the National Guard is part

of the military and the state cases discussing state sover-

eign immunity and the military. In Emsley v. Army

National Guard, 106 Wn.2d 474 (1986) the widow of a

serviceman killed at Fort Lewis Washington by artillery

fire from the Washington National Guard was not barred

from suing the Guard by Feres. In Ables v. State of Califor-

nia, 179 Cal.App.3d 328 (1986), Ables sued the State of

California for torts commited in an official capacity by

MP’s of the California National Guard. There was no

federal defense because the State is responsible for the

Guard. There is a growing double standard caused by the

characterization of the militia as part of the federal mili-

tary when it clearly is not in practice. As a doctrine

promoting federal sovereign immunity, unless there is

federal liability, the Feres doctrine should not be applied.

In spite of this court’s pronouncements in Perpich, the

Ninth Circuit continues to expand Feres and now declares

that it applies to members of the state militia under

exclusive state control. In so stating, the Ninth Circuit

continues to rely on the pre-Perpich cases which were

based on the discredited notion of state and federal

hybridization. The Ninth Circuit confuses “full-time ser-

vice” (state militia) with “active duty” (federal military)

and then says that it doesn’t matter so long as the state

service is “federally authorized”. Opinion at 11953, & fn.

4. The Court also confused state status, 10 U.S.C. §§10113,

12401, with federal reserve status, 10 U.S.C. §§12403,

12405, and thereby redefined full-time militia service as

federal service based on being “federally authorized”.

Opinion at 11953. Congress has defined “full time ser-

vice” with the militia as state service. 32 U.S.C. §101(12).

The regulation governing Bowen’s termination was

not federal but state law, proposed by the National Guard

Bureau, but only binding because of State adoption. App.

D. The regulation, as adopted in Alaska, expressly

required the state Adjutant General (a political appointee

of the Governor of Alaska) to assure compliance with

state law. ANGR 35-03 §6-5(a). The ultimate arbiter of

Alaska state law has determined that the proper state

procedures were not followed. App. D.

The departure from congressional standards, the dis-

regard of Perpich, and the extension of Feres to the states

should not occur without the review and approval of this

court. A denial of the petition will simply add to the

confusion.

Ill.

THE OPINION BELOW IMPOSES THE FERES DOC-

TRINE ON THE STATES WITHOUT AWARDING THE

MEMBERS OF THE MILITIA PROTECTIONS

AFFORDED THE MEMBERS OF THE MILITARY

UPON WHICH FERES IS BASED

The Feres Doctrine is a judicial extension of the sover-

eign immunity of the United States. Feres, supra. In justi-

fying the application of the Feres Doctrine, the courts

defer to the professional military judgement of active

duty military officers, administrative corrective panels,

and service provided substantive remedies. Before Feres

is applied to the states, the courts should verify that the

same benefits which make Feres tolerable in the federal

setting, also apply to the states. Virtually none of them

do. Article 138 of the Uniform Code of Military Justice,

for example, creates a procedure for registering com-

plaints against commanders. It does not apply to the

militia and there is no substitute. As set forth above, the

UCM] does not apply to the militia. The Boards for Cor-

rection of Military records may order a wrongfully dis-

charged military member reinstated. The Boards have no

authority to order a militia soldier reinstated in the state

militia. UHL v. Swanstrom, 79 F.3d 751 (8th Cir. 1996).

Those in charge of the militia are not even professional

soldiers. The military is primarily composed of active

duty soldiers. The militia is primarily composed of part-

time soldiers who meet one weekend a month. The adju-

tant General is a political appointee. The officer and

enlisted personnel are primarily part time militia who

have other jobs during the week. The military has a

comprehensive system of federal regulations. The militias

CAN aie ea

are governed by the states with guidance and funding

from the federal government. The dissimilarities far out-

weigh the similarities. For that reason alone, Feres should

not be applied. Application of the Feres Doctrine is also far

from uniform and its parameters are so indistinct that it

reigns in confusion and injustice, and its application to

the state militia is contrary to most of the arguments

recited in the opinion. The Courts have observed that the

Feres Doctrine has more to do with the proper relationship

between “the courts, Congress, and the Military than

with individual defendants . . . ”. Under that rational

Feres should be applied, if at all, by the federal judiciary

interpreting congressional intent concerning federal legis-

lation which applies to forces under the command of the

President. In this case, we find the federal judiciary pro-

hibiting state action in an area reserved to the states by

the Constitution and Congress and to an organization

under the control of the Governor of Alaska. Congress

has no constitutional power to govern the militia; the

militia does not belong to the federal executive branch,

but to the state executive branch. The only common

denominator is the federal judiciary. In this case, defer-

ence should be given to the state of Alaska, not the

“military”.

The Feres case was primarily based on the availability

of alternative avenues of redress in the federal system.

The federal military, for example, provides remedies for

service connected death, disability, and injury. Service

personnel may apply to their respective Boards for Cor-

rection of Military Records for corrective action, etc. The

state is the corrective authority for the militia. Military

Officers are selected and promoted on a uniform, compet-

itive basis. Militia officers are appointed and promoted

by the states on a non-competitive basis. There is no case

in which the evidence demonstrates that the militia of the

various states enjoy the same or similar safeguards that

justify the Feres Doctrine in federal setting. There is cer-

tainly no such evidence in this case. In fact, the opposite

is true. Except for funding and some attempt at uniform

regulation through the National Guard Bureau, the mili-

tary departments defer to the states. The military receives

due process hearings for termination. The militia may or

may not depending on state law.

A second basis for Feres was the hardship to the

military of judicial oversight of military decisionmaking.

The courts have simply deferred to perceived military

expertise in matters which were “inherently military”.

The militia is not “inherently military”. A decision to fire

a lawyer for alleged misconduct or professional derelic-

tion is not inherently military; nor was Bowen’s job as a

Judge Advocate. The affirmative decision to deny a hear-

ing involves no military expertise. It is inherently legal.

No military strategy or tactics are involved. No immedi-

ate response to command is involved. The government's

administrative and fiscal resources will not be unduly

burdened by requiring a pre termination adversarial

hearing on cases where an AGR member is involuntarily

terminated for either “misconduct” or “derelection of

duty.” At the schools run by the military to train their

legal officers, the military law classes are exclusively

taught by lawyers. Judge Advocate officers are assigned

and otherwise administrated by the office of the Judge

Advocate General. The state bar of each state regularly

sh! spacial ae ata

addresses the fitness of their lawyers to practice and the

federal government has no power to disbar a lawyer.’ It

is undisputed that the congressional purpose behind the

Full-Time National Guard program, which applied to

Bowen, was encouraging the states to hire a full time

lawyer to assure compliance with the law. That policy is

easily frustrated if the lawyer is subject to summary

removal. To that end the program provided for 5-year

terms and limited basis for involuntary removal. Preclud-

ing “at will” termination protected the attorney from the

“military” so that he could give an honest opinion

whether or not it was popular. By making the full time

attorney a state officer, Congress intended the states, not

the federal government, to monitor enforcement. By

refusing to review the facts, the Ninth Circuit has neu-

tered the regulation and the program, rendering the pro-

scription against “at will” termination impotent. The

militia is now allowed to compel legal approval of their

commanders’ decisions on threat of termination. The law-

yer becomes a rubber stamp.

The errors in this case are not the result of the courts’

misinterpretation of the facts but from their insistence on

refusing to look at the facts or even permit discovery to

'0 Prior to Bowen's termination, no complaint was filed with

the State Bar of Alaska or the TJAG’s Ethics Committee as

required by ANGR 110-6 concerning the alleged “professional

dereliction”. After Bowen appealed to the Superior Court,

Gillean filed a complaint with the State Bar alleging that Bowen,

in reporting Gillean’s intent to use government funds for an

illegal purpose, a violation of an attorney-client confidence. The

State Bar found no basis for discipline and agreed that Bowen’s

client was the State of Alaska, not Gillean, on official matters.

disclose the facts because of the Feres Doctrine. Enforced

ignorance must lead inevitably to enforced injustice, as it

has here. The procedures embraced here are the judicial

equivalent of, “my mind is made up, don’t confuse me

with the facts”. Bowen was wrongfully terminated from a

state position. There is no good reason to deny Bowen the

remedies provided by the Constitution, by Congress, and

by the State. If the law is to be judicially rewritten, the

Supreme Court should do the writing.

IV.

THE IMPACT OF THIS DECISION IS SO DISPROPOR-

TIONATE AS TO REQUIRE REVIEW

Bowen will lose pay and entitlements, of a value of

more than a million dollars over his lifetime. This is

balanced against the cost to the state of Alaska of comply-

ing with its own law. Bowen had no legal remedy for the

wrong complained of other than a state court action. He

cannot appeal administratively for reinstatement in the

retirement system. The fact is that he was wrongfully

terminated by the state of Alaska. The state and its

employees caused the federal government to terminate its

contribution towards his retirement. Because the state is

responsible for the torts of the militia, Maryland, supra,

Emsley, supra, Ables, supra, and 32 C.F.R. §564.52(b), it is

improbable that the United States will voluntarily pro-

vide those benefits based on the wrongful conduct of

state officials.

THE PETITION SHOULD BE GRANTED TO ENSURE

THE INTEGRITY OF THE JUDICIAL PROCESS IN

THIS AND SIMILAR CASES

Can the Feres Doctrine’s reliance on things “inherently

military” be applied to the punishment of an attorney

whose function is to encourage compliance with the law

by the military? And if so, what inherently military

expertise is involved in a decision to terminate a lawyer

with 19 years of experience without due process? In

describing the role of the U.S. Attorney in criminal cases,

this court pointed out in Berger v. United States, (1935) 295

U.S. 78, 88, that unlike the attorneys for ordinary liti-

gants, the U.S. Attorney, as the representative of a sover-

eign who is obligated to govern justly and impartially.

The U.S. Attorney’s role, at least in criminal cases, is not

to win, but to do justice.

In Scheuer v. Rhodes, (1974) 416 U.S. 232, 40 L.Ed.2d

90, 94 S.Ct. 1683, this court applied similar logic to gov-

ernment officials generally. Public officials have a duty to

perform in good faith and acts or decisions made in

deliberate bad faith, subject the wrongdoer to personal

liability. The Public interest to be protected is the perfor-

mance of duty in good faith. There is no public purpose

in protecting bad faith.

Bowen argues that these principles are no less appli-

cable here. Indeed, that same duty would seem to apply

to the courts. Just as the United States can have no

legitimate interest in perpetuating injustice, it is incum-

bent on its courts to permit justice to proceed except in

unusual circumstances. In the context of this case, the

collective agencies of the United States government and

the State of Alaska said that the decision to discharge

Bowen was a state matter. In this case the Department of

Defense letters in App. “E” recognize the inherent justice

of leaving state matters to the state, particularly where

the military told everyone that was where it belonged.

The U.S. Attorney nevertheless intervened. Given the

facts of this case, at the very least, Bowen should have

been allowed to conduct discovery in order to address the

legitimacy of the U.S. Attorney certification. There is at

best a conflict of evidence supporting the U.S. Attorney

certification and it appears inconsistent with the refusal

of DoD to provide legal assistance. All of the courts

found that Gillean was acting as a state official in super-

vising Bowen and recommending Bowen's termination.

This would seem fatal to the United States substituting

itself for Gillean. There is no explanation of the involve-

ment of the Air Force officers in this case. There are no

orders, no support agreements, and the record reflects

that there was a specific denial of assistance at the

Department of Defense level. App. E. Absent some inde-

pendent support of the U.S. Attorney’s declaration, the

pleadings should have controlled the issue. See

Argabright v. United States, 35 F.3d 472 (9th Cir. 1994),

National Wildlife Federation v. Espy, 45 F.3d 1337 (9th Cir.

1995), Parks School of Business, Inc. v. Symington, 51 F.3d

1480 (9th Cir. 1995).

The Feres Doctrine itself is based on doing justice. To

the extent it is used to promote injustice, it should be

overturned. A fair reading of Feres leads to the inescapa-

ble conclusion that it would not have occurred but for the

fact that the injured party was already compensated. Feres

prevented the additional remedy of further litigation.

Chappell v. Wallace, 462 U.S. 296, 103 S.Ct. 2362 (1983),

extended Feres to constitutional issues based on military

necessity. With minor exceptions, cases to which the doc-

trine applies should fall within one of these categories;

either a separate but equal remedy is available, or the

court’s intervention and review would substantially

interfere with the performance of the military mission.

The instant case falls in neither category. The remedy

provided the militia by state law and federal acquies-

cence, is state litigation. If this is eliminated, as the Ninth

Circuit Opinion states, then there is no remedy at all.

There is no showing that a due process administrative

hearing is intrusive in the military mission.

Concerning Bowen's contract claim, this is the first

time Feres has ever been applied to bar a claim based on

contract. U.S. Military personnel can pursue contract

claims in the United States Court of Claims. Bowen's

contract was with the State of Alaska and his remedy is

under state contract law. The extension of Feres to elimi-

nate contract right due to militia services is a decision

which should only be made, if at all, by the Supreme

Court.

CONCLUSION

The Feres Doctrine has never been criticized as being

too fair. Certiorari should be granted to review its appli-

cation generally and to specifically determine whether it

can be applied to the states without violating the Consti-

tution, the express will of Congress, the sovereignty of

the States, and the right of individuals to due process of

law and equal protection of the law. The questions pre-

sented are of immediate, national concern because of

conflicts in the case law interpreting Feres generally, and

the existing differences between the positions of the

States, Congress, and the Department of Defense on the

one hand, and the federal judiciary on the other, regard-

ing the application of Feres to the States.

Respectfully submitted,

Pat K. Bowen

Counsel of Record

100 E. Thousand Oaks, Blvd.

Ste. 110

Thousand Oaks, CA 91360

Telephone: ‘805) 379-1211

Admitted :vuvember 26, 1990

App. 1

APPENDIX A

FOR PUBLICATION

: UNITED STATES COURT OF APPEALS

, FOR THE NINTH CIRCUIT

Gary W. Bowen,

Plaintiff-Appeliant, No. 96-35296

Vv. D.C. No.

KerrH Orsteap; UnNirep STATES CV-95-00319-JWS

or America; Hucu L. Cox, II]; OPINION

Dan E. Dennis; KENNETH M. TayLor;

State OF ALASKA,

Defendants-Appellees.

i i el

Appeal from the United States District Court

for the District of Alaska

John J. Sedwick, District Judge, Presiding

Submitted August 5, 1997*

Seattle, Washington

Filed September 12, 1997

Before: Dorothy W. Nelson, Charles Wiggins, and

Alex Kozinski, Circuit Judges.

Opinion by Judge Nelson

* The panel unanimously finds this case suitable for decision

without oral argument. Fed. R. App. P. 34(a) and Ninth Circuit

Rule 34-4.

App. 2

COUNSEL

Pat K. Bowen, Thousand Oaks, CA, for plaintiff-appel-

lant.

Kenneth S. Roosa, Assistant United States Attorney,

Anchorage, AK, for defendant-appellee United States.

Patrick J. Gullufsen, Assistant Attorney General, Juneau,

AK, for defendant-appellee State of Alaska.

OPINION

D.W. NELSON, Circuit Judge:

Major Gary Bowen appeals the district court’s dis-

missal of his complaint against the Alaska National

Guard, certain of its members, the United States, and

certain commissioned officers of the United States Air

Force. The district court determined that Bowen’s claims

against the military were nonjusticiable under Feres v.

United States, 340 U.S. 135 (1950). The district court also

dismissed Bowen’s RICO cause of action because Bowen

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

We have jurisdiction pursuant to 28 U.S.C. § 1291, and we

affirm.

FACTUAL AND PROCEDURAL BACKGROUND

Bowen entered full-time duty with the Alaska Air

National Guard in June 1984 as a staff judge advocate.!

' The National Guard “occupies a distinct role in the

federal structure that does not fit neatly within the scope of

either state or national concerns.” Knutson v. Wisconsin Air Nat'l

App. 3

Bowen entered this duty as a member of the Active

Guard/Reserve (“AGR”), a program authorized by fed-

eral statute, see 32 U.S.C. § 502(f), and created to provide

full-time military support personnel to assist in the

administration of the National Guard of the various

states. Bowen’s tour of duty in the AGR was extended on

April 22, 1991 by order of the Governor of Alaska. Bowen

was ordered to continue his duties as a staff judge advo-

cate and attorney-advisor at the headquarters of the

Alaska National Guard until June 3, 1996, “unless sooner

relieved by competent authority.”

In 1992, Bowen was asked to implement a military

justice system for the Alaska National Guard. Colonel

Jerry Gillean was Bowen's immediate supervisor on this

project and Alaska National Guard Brigadier General

Dan Dennis was Bowen's general supervising officer.

On February 22, 1993, Colonel Gillean advised

Bowen that he intended to recommend Bowen’s involun-

tary termination from the AGR program. Colonel Gillean

informed Bowen that Bowen’s unsatisfactory conduct had

“resulted in a breach of trust between the leadership of

Guard, 995 F.2d 765, 767 (7th Cir. 1993). It is a hybrid

organization that serves the state within which it is located as

well as the federal government in times of need. “[T]he Guard

may serve the state in times of civil strife within its borders

while also being available for federal service during national

emergencies.” Id.; see also New Jersey Air Nat'l Guard v. Federal

Labor Relations Auth., 677 F.2d 276, 279 (3d Cir. 1982) (“Within

each state the National Guard is a state agency, under state

authority and control. At the same time, the activity, makeup,

and function of the Guard is provided for, to a large extent, by

federal law.”).

App. 4

the Alaska National Guard and [Bowen],” and that

Bowen's subsequent misconduct had “further eroded the

relationship that should exist” between the leadership of

the Guard and Bowen.

On April 1, 1993, Colonel Gillean formally recom-

mended termination of Bowen's tour of duty in the AGR.

Brigadier General Kenneth Taylor reviewed and con-

curred in Colonel Gillean’s recommendation, and

informed Bowen that he planned to recommend Bowen’s

separation from full-time AGR duty. This recommenda-

tion, along with Bowen's response thereto, was for-

warded to Brigadier General Dennis, who then formally

recommended the termination of Bowen’s AGR duty to

Hugh Cox, Alaska’s Adjutant General and the final

authority for involuntary removal from AGR duty. On

May 13, 1993, the Adjutant General endorsed Brigadier

General Dennis’ recommendation, and Bowen was for-

mally terminated from his tour of duty in the AGR on

May 20, 1993.

On May 26, 1995, Bowen filed suit in Alaska state

court. Bowen’s complaint alleged tortious and uncon-

stitutional conduct by federal defendants William King,

Lance Sigmond, Charles Williams, Clinton Pearson, and

James Gamboa, all of whom were attorneys in the Judge

Advocate General Branch on active duty in the United

States Air Force during the time of the events giving rise

to Bowen’s complaint. The complaint also alleged unlaw-

ful, tortious, and unconstitutional conduct by state defen-

dants Keith Oistead, Hugh Cox, Dan Dennis, Kenneth

Taylor, Jerry Gillean, and the State of Alaska. Specifically,

Bowen's complaint alleged breach of contract, wrongful

termination of employment, denial of administrative due

App. 5

process and state constitutional rights, tortious interfer-

ence with contract, denial of equal protection, legal mal-

practice, defamation, misrepresentation, and RICO

violations.

Pursuant to the Federal Employees Liability Reform

and Tort Compensation Act of 1988, 28 w.o.c.

§ 2679(d)(1), the United States Attorney for the State of

Alaska certified that federal defendants King, Williams,

Pearson, and Gamboa were employees of the United

States acting within the scope of their employment at all

times relevant to the suit. The United States therefore

substituted itself in place of these defendants, and

removed the case to federal court pursuant to 28 U.S.C.

§ 1446(a).

On February 8, 1996, the district court granted all

defendants’ motions to dismiss. The district court’s deci-

sion was based principally upon the doctrine of intramili-

tary immunity first announced in Feres v. United States,

340 U.S. 135 (1950). Bowen appeals from this decision.

STANDARD OF REVIEW

A motion to dismiss pursuant to the Feres doctrine is

treated as a motion to dismiss for lack of subject matter

jurisdiction under Fed. R. Civ. P. 12(b)(1). Jackson v. United

States, 110 F.3d 1484, 1486 (9th Cir. 1997). The question of

whether the Feres doctrine is applicable to the facts

reflected in the record of a case is a question of law

reviewed de novo. Id. at 1486.

A dismissal for failure to state a claim pursuant to

Fed. R. Civ. P. 12(b)(6) is a ruling on a question of law

App. 6

subject to de novo review. Stone v. Travelers Corp., 58 F.3d

434, 436-37 (9th Cir. 1995).

DISCUSSION

A. Bowen’s tort and constitutional claims

Both the United States and the State of Alaska (on

behalf of itself and the individual state defendants) con-

tend that the Feres doctrine bars Bowen’s tort and consti-

tutional claims against the military and its members. We

agree.

In Feres v. United States, the Supreme Court held that

members of the armed services could not sue the Govern-

ment for injuries that “arise out of or are in the course of

activity incident to service.” 340 U.S. at 146. This bar has

been interpreted broadly. “[P]ractically any suit that

‘implicates the military judgments and decisions’ . . . runs

the risk of colliding with Feres.” Persons v. United States,

925 F.2d 292, 295 (9th Cir. 1991) (quoting United States v.

Johnson, 481 U.S. 681, 691 (1987)). The Supreme Court has

held that Feres applies not only to tort actions brought

under the Federal Tort Claims Act, 28 U.S.C. § 2671 et

seq., but to Bivens actions as well. Chappell v. Wallace, 462

U.S. 296, 305 (1983) (“enlisted military personnel may not

maintain a suit to recover damages from a superior offi-

cer for alleged constitutional violations”); United States v.

Stanley, 483 U.S. 669, 680-81 (1987) (Chappell approach

applies to all activities performed “incident to service”

and not merely to activities performed within the officer /

App. 7

subordinate relationship).2 Furthermore, Feres bars inten-

tional tort claims as well as simple negligence claims. See

Mollnow v. Carlton, 716 F.2d 627, 628 (9th Cir. 1983).

Finally, Feres is not limited to suits against the United

States. We have extended Feres to “suits between individ-

ual members of the military, recognizing an ‘intramilitary

immunity’ from suits based on injuries sustained incident

to service.” Lutz v. Secretary of the Air Force, 944 F.2d 1477,

1480-31 (9th Cir. 1991). In sum, the Feres doctrine is

applicable “whenever a legal action ‘would require a

civilian court to examine decisions regarding manage-

ment, discipline, supervision, and control of members of

the armed forces of the United States.’ ” Hodge v. Dalton,

107 F.3d 705, 710 (9th Cir. 1997) (quoting McGowan v.

Scoggins, 890 F.2d 128, 132 (9th Cir. 1989)).°

2 The ban on Bivens actions has been extended to section

1983 actions against state officials. See, e.g., Wright v. Park, 5 F.3d

586, 591 (1st Cir. 1993) (“[T]here is no principled basis for

according state actors sued under 42 U.S.C. § 1983 a different

degree of immunity than would be accorded federal actors sued

for an identical abridgement of rights under Bivens.”); see also

Sebra v. Neville, 801 F.2d 1135, 1142 (9th Cir. 1986) (“Although we

have not applied Feres to § 1983 claims, recent case authority

indicates that the doctrine extends to claims for damages from

alleged constitutional or regulatory violations.”). We agree with

the First Circuit and believe that insofar as the Feres doctrine

extends to the state National Guard units, it shields state

military officers from constitutional claims brought under

section 1983 to the same extent that it protects federal military

personnel from defending against Bivens actions raising the

very same claims.

3 The Eighth Circuit recognizes two exceptions to the Feres

doctrine. First, facial challenges to the constitutionality of a

military regulation or statute are not barred. Second, limited

judicial review of final agency action is permitted. See Watson v.

App. 8

Bowen attempts to escape the reach of Feres by argu-

ing that the doctrine applies only to the federz! military

structure. First, Bowen claims that his status as a state,

rather than federal, military employee exempts his claim

from the Feres bar. We previously have rejected this argu-

ment. “It is beyond question that the Feres doctrine gener-

ally applies to claims brought by National Guard

members.” Stauber v. Cline, 837 F.2d 395, 399 (9th Cir.

1988); see also Jackson, 110 F.3d at 1487 (“Members of the

National Guard and the Reserves are service members

under Feres.”); cf. Wright v. Park, 5 F.3d 586, 588 (1st Cir.

1993) (“It is axiomatic that the National Guard is military

in character.”). The fact that Bowen was not on active

duty with the United States Air Force Reserve* does not

alter this conclusion, see, e.g., Quintana v. United States,

997 F.2d 711, 712 (10th Cir. 1993) (“active duty status is

not necessary for the Feres ‘incident to service’ test to

apply”); Velez v. United States ex rel. Dept. of Army, 891

F.Supp. 61, 63 (D. Puerto Rico 1995) (“The distinction

between an ‘active’ and ‘inactive’ National Guard service-

man relative to the Feres doctrine is irrelevant.”), partic-

ularly where, as here, the service member is on full-time

duty as a member of the federally authorized AGR. We

follow Stauber and conclude that Bowen's status as a

Arkansas Nat'l Guard, 886 F.2d 1004, 1010-11 (8th Cir. 1989).

Neither exception is implicated by Bowen’s claims. Like the

plaintiff in Watson, Bowen “challenges the constitutionality of a

discrete personnel action taken pursuant to unassailably valid

statutory authority.” Id. at 1010 n. 15.

* A National Guardsman is on active duty when called to

service by the United States, and is on reserve duty when acting

as a member of the state’s National Guard.

App. 9

member of the National Guard triggers application of

Feres, despite the fact that he was serving as a member of

the Alaska Air National Guard under the direct authority

of state officers.

While Bowen’s first argument against the application

of the Feres doctrine focuses upon his own status as a

state employee, his second argument against Feres focuses

upon the status of the defendants. Bowen urges us not to

bar his claims against the state officers because, he

argues, the Feres doctrine “cannot be applied to the

states,” i.e., it is applicable only to those actions where

federal military personnel are somehow implicated in the

alleged unlawful conduct. Thus, Bowen distinguishes

Stauber by noting that the parties in that case were “under

the direct command of a uniformed, full-time U.S. Army

lieutenant colonel.” See Stauber, 837 F.2d at 397.

In United States v. Johnson, the Supreme Court noted

that it had

never suggested that the military status of the

alleged tortfeasor is crucial to the application of

the [Feres] doctrine. Nor have the lower courts

understood this fact to be relevant under Feres.

Instead, the Feres doctrine has been applied con-

sistently to bar all suits on behalf of service

members against the Government based upon

service-related injuries.

481 U.S. 681, 686-88 (1987).

Courts have not interpreted this language to mean

that the service person’s suit must be against the federal

government or federal officers. The overwhelming weight

of authority indicates that state National Guard officers

App. 10

are protected from suit by fellow Guardsmen by the Feres

doctrine. Stauber, for example, applied Feres to a Guards-

man’s claims against individual members of the Alaska

National Guard, the Alaska Adjutant General, the Alaska

Department of Military and Veterans Affairs, and the

State of Alaska itself. See also Uhl v. Swanstrom, 79 F.3d

751 (8th Cir. 1996) (applying Feres bar to suit by National

Guardsman against his commanding state officer, the

Adjutant General of the Iowa Air National Guard, and

the Iowa Air National Guard); Lovell v. Heng, 890 F.2d 63

(8th Cir. 1989) (National Guardsman’s § 1983 action

against state National Guard officers barred under Feres );

Townsend v. Seurer, 791 F. Supp. 227, 229 (D. Minn. 1992)

(“[R]egardless of whether the suit is brought against the

state National Guard and individual Guard personnel or

against the United States and individual Guard person-

nel, the Feres doctrine will bar the action.”). Indeed, we

indicated in Stauber that the Feres doctrine “has far more

to do with the proper relation between the courts, Con-

gress and the military than it has to do with individual

defendants. . . . It is a judicial doctrine leaving matters

incident to service to the military, in the absence of con-

gressional direction to the contrary.” Stauber, 837 F.2d at

399.

These cases implicitly recognize that the military

apparatus of the United States cannot be divided into

strictly state and federal components. We endorse these

holdings: Feres applies to the state National Guards and

their members due to the integral role they play as part of

the nation’s defense force and the substantial degree to

which the state National Guards are financed, regulated,

and controlled by the federal government even when not

App. 11

called into active federal service. Consequently, under

Stauber and the clear weight of authority in other circuits,

Bowen’s constitutional claims and claims sounding in tort

are subject to the Feres doctrine.

Under Feres, judicial review of those claims is barred

if the harms about which Bowen complains arose out of

or in “the course of activity incident to service.” Feres, 340

U.S. at 146. We have no trouble concluding that the

personnel decisions contested by Bowen in fact were

made “incident to service.” See United States v. Shearer,

473 U.S. 52, 58-59 (1985) (noting that decision to dis-

charge a serviceman is an “essentially professional” one

and that respondent’s “attempt to hale Army officials into

court to account for their supervision and discipline of [a

serviceman] must fail”); see also Lutz, 944 F.2d at 1485

(“The Supreme Court made plain in Stanley that in decid-

ing whether Feres applies, courts should answer the

broader question of whether ‘the injury arises out of

activity incident to service’ . . . rather than considering

any actual impact on military discipline.”). Accordingly,

Bowen’s tort and constitutional claims contesting those

personnel decisions are barred.

B. Bowen’s contract claim

To date, Feres and its progeny have been applied only

to claims sounding in tort or to assertions of constitu-

tional wrongs. Accordingly, the Feres doctrine does not

resolve the propriety of the district court’s dismissal of

Bowen's breach of contract claim. We conclude that the

district court’s action was correct because Bowen's claim

is nonjusticiable.

App. 12

In Mier v. Owens, we refused to entertain the Title VII

claim of a National Guardsman due to the fact that “the

discriminatory personnel actions [alleged by the Guards-

man] are integrally related to the military’s unique struc-

ture.” 57 F.3d 747, 750 (9th Cir. 1995), cert. denied, 116 S.

Ct. 1317 (1996). We noted that “challenges to discharge by

the Guard . . . are nonjusticiable because judicial review

‘would seriously impede the military in performance of

its vital duties.’ ” Id. (quoting Christoffersen v. Washington

State Air Nat'l Guard, 855 F.2d 1437, 1444 (9th Cir. 1988));

see also Sebra v. Neville, 801 F.2d 1135, 1142 (9th Cir. 1986)

(courts are “properly wary of intruding upon” military

transfer decisions).

In Mier, we recognized that “personnel actions are

not always integrally related to the military’s unique

structure.” Mier, 57 F.3d at 750. For example, a Title VII

claim challenging the refusal to allow a female civilian

employee to embark on a Naval aircraft carrier was held

to be justiciable in Bledsoe v. Webb, 839 F.2d 1357, 1360 (9th

Cir. 1988). We held in Bledsoe that the claim was justicia-

ble because the plaintiff was a civilian employee and the

challenged conduct did not implicate a military policy.

We specifically distinguished the conduct involved in

Bledsoe from “inherently military” determinations such as

termination decisions. See id.

Unlike the Title VII claim in Bledsoe, the termination

decision challenged by Bowen does implicate “inherently

military” concerns. Thus, Mier and the cases upon which

it relies dictate that Bowen’s breach of contract claim -

which is at heart an objection to the military’s decision to

discharge him from the AGR program - is nonjusticiable.

App. 13

Therefore, the district court’s decision to dismiss this

claim for lack of subject matter jurisdiction was correct.

C. Bowen’s RICO claim

The district court determined that Bowen failed to

state a RICO claim and dismissed his RICO allegation

pursuant to Federal Rule of Civil Procedure 12(b)(6).

To state a claim under RICO, Bowen must demon-

strate that the defendants engaged in at least two acts of

“racketeering activity,” as that term is defined in 18

U.S.C. § 1961(1). See Sun Sav. & Loan Ass'n v. Dierdorff, 825

F.2d 187, 191 (9th Cir. 1987). In his complaint, Bowen

alleged that “the actions of the individual defendants

constitutes [sic] a criminal conspiracy to deprive [Bowen]

of his civil rights and to injure his reputation and stand-

ing in the community.” Civil rights violations and injury

to reputation do not fall within the statutory definition of

“racketeering activity.” Accordingly, Bowen’s complaint

fails to state a claim under RICO.

On appeal, Bowen does not attack the district court’s

substantive judgment. Rather, he simply asserts that the

district court should have permitted him to amend his

complaint before dismissing the RICO claim. However,

Bowen never requested an opportunity to amend his

complaint in the district court. Furthermore, Bowen fails

to explain how he could have amended his complaint to

state a claim under RICO. Indeed, Bowen does not sub-

stantively respond at all to the defendants’ arguments on

appeal that his RICO claim was properly dismissed.

Accordingly, Bowen has waived this issue on appeal. See

Han v. United States, 944 F.2d 526, 527 n.1 (9th Cir. 1991)

App. 14

(refusing to reach merits of argument that was not before

the district court and raised on appeal “only briefly, with

no citation and little argument”); International Union of

Bricklayers v. Martin Jaska, Inc., 752 F.2d 1401, 1404 (9th

Cir. 1985) (court “will not ordinarily consider matters on

appeal that are not specifically and distinctly raised and

argued in appellant’s opening brief”).

CONCLUSION

Bowen’s tort and constitutional claims against the

defendants are barred by the Feres doctrine. Likewise,

Bowen’s breach of contract claim is nonjusticiable insofar

as consideration of the claim would involve the court in

“inherently military” concerns. Finally, Bowen’s failure to

allege that the defendants engaged in at least two qualify-

ing predicate acts undermines his RICO claim. Accord-

ingly, we affirm the district court’s decision to dismiss

Bowen's complaint.

AFFIRMED.

App. 15

APPENDIX B

NOT FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

GARY W. BOWEN, )

) No. 96-35296

)

V. ) D.C. No.

KEITH OISTEAD; UNITED ) CV-95-00319-JWS

STATES OF AMERICA: HUGH

L. COX, III; DAN E. DENNIS:

KENNETH M. TAYLOR; STATE

OF ALASKA,

Defendants-Appellees. )

)

BEFORE: D.W. NELSON, WIGGINS and KOZINSKI, Cir-

cuit Judges

Plaintiff-Appellant,

) ORDER

) (Filed Jan. 22, 1998)

The members of the panel that decided this case

voted unanimously to deny the petition for rehearing.

Judge Kozinski voted to reject the suggestion for rehear-

ing en banc, and Judges D.W. Nelson and Wiggins recom-

mended rejection of the suggestion for rehearing en banc.

The full court has been advised of the suggestion for

rehearing en banc and no active judge has requested a

vote on whether to rehear the matter en banc. (Fed.R.

App. P. 35.)

The petition for rehearing is denied and the sugges-

tion for rehearing en banc is rejected.

App. 16

APPENDIX C

UNITED STATES DISTRICT COURT

DISTRICT OF ALASKA

GARY W. BOWEN,

Plaintiff, Case No. A95-319 CV (JWS)

a ORDER FROM

KEITH W. OISTEAD, CHAMBERS

WILLIAM S. KING,

CHARLES H.

WILLIAMS, CLINTON

R. PEARSON, JAMES

GAMBOA, HUGH L.

COX, IIL, DAN E.

DENNIS, JERRY W.

GILLEAN, KENNETH

M. TAYLOR, STATE OF

ALASKA, and JOHN

DOES 1-100,

Defendants.

(Filed Feb. 08, 1996)

me me me ee ee ee ee ee ee ee ee”

I. MOTION PENDING

At Docket 10, defendant the United States of America

(“United States”) moves, pursuant to Fed. R. Civ. P

12(b)(1) and (6), for dismissal of the complaint on the

grounds that this court lacks subject matter jurisdiction

and the complaint fails to state a claim upon which relief

may be granted. At Docket 11, defendant the State of

Alaska (“State”), Keith W. Oistead, Hugh L. Cox, III, Dan

E. Dennis, and Kenneth M. Taylor join in the United

States’ motion and separately move to dismiss the com-

plain on similar grounds.

App. 17

At Docket 13, pro per plaintiff Gary W. Bowen

(“Bowen”) moves for partial summary judgment against

the State and defendant Taylor, declaring that Taylor

lacked the requisite authority to terminate Bowen,

because Taylor was not the commander of the Alaska Air

National Guard. The issues have been fully briefed. No

party has requested oral argument, and it would not be of

material aid to the court.

ll. FACTS

Bowen was a member of the Air Force Reserve and

the Air National Guard of the United States. On June 4,

1984, he was called to full-time National Guard training

duty with the Alaska Air National Guard as an attorney/

advisor in Active Guard/Reserve (“AGR”) status. On

June 11, 1993, the Alaska Department of Military & Vet-

eran Affairs, Office of the Adjutant General, terminated

Bowen's AGR status, based on misconduct in accordance

with Air National Guard Regulation 35-03.!

On May 26, 1995, Bowen filed a complaint in the

Superior Court for the State of Alaska, Third Judicial

District, against Keith W. Oistead, William S. King,

Charles H. Williams, Clinton R. Pearson, James Gamboa,

Hugh L. Cox, III, Dan E. Dennis, Jerry W. Gillean, Ken-

neth M. Taylor, and the State of Alaska. The First

Amended Complaint alleges breach of contract, wrongful

termination of employment, denial of administrative due

1 Bowen is still a member of the Air Force Reserve.

App. 18

process and state constitutional rights, tortious interfer-

ence with contract, denial of equal protection, legal mal-

practice, defamation, misrepresentation, and violation of

the Racketeer Influenced and Corrupt Organizations Act

(“RICO”), 18 U.S.C. §§ 1916-1968. The gravamen of the

complaint is that Bowen’s employment as Staff Judge

Advocate to the National Guard was terminated without

just cause, and that defendants perpetrated intentional

acts outside the scope of their authority as members of

the organized militia of the State of Alaska. Defendants

removed the case to this court under 28 U.S.C. §§ 1446(a)

and 2679, and 25 U.S.C. § 450f(d).

Also on May 26, 1995, Bowen filed a claim with the

Air Force at Elmendorf Air Force Base, against King,

Williams, Pearson, Gamboa, Lance Sigmond, and “other

attorneys in the Employ of the United States Air Force,”

alleging legal malpractice, interference with contract,

wrongful termination, and denial of due process and

equal protection. At the time Bowen was terminated,

defendants named in Bowen's claim were attorneys in the

Judge Advocate General branch on active duty in the Air

Force. The claim alleges that King negligently repre-

sented Bowen as a client in conjunction with his termina-

tion, and that, as King’s supervisor, Williams interfered

with King’s representation of Bowen. The claim further

alleges that Pearson, Gamboa, and Sigmond negligently

practiced law by wrongfully representing a state agency,

thereby interfering with Bowen’s employment contract

with the State and aiding and abetting state authorities in

wrongfully terminating Bowen from his position as a

State employee. The Air Force apparently has not issued

a decision on Bowen’s claim.

App. 19

Pursuant to the Federal Employees Liability Reform

and Tort Compensation Act of 1988, 28 U.S.C.

§ 2679(d)(1), the United States Attorney has certified that

defendants Gillean, King, Williams, Pearson, and Gamboa

were employees of the United States, acting within the

scope of their employment at all times relevant to the

allegations made against them in the complaint. The

United States has substituted itself in place of those

defendants.

Ill. DISCUSSION

A. Statutory Background (National Guard)

Under Article I, Section 8, Clauses 15 and 16 of the

United States Constitution, every state retains command

and control over its own armed forces. Under its constitu-

tional authority to “raise and support armies,” Congress

also has crealed the National Guard of the United States,

a reserve component of the Armed Forces of the United

States. Perpich v. Department of Defense, 496 U.S. 334, 338,

110 S. Ct. 2418, 2421 (1990); 32 U.S.C. § 101(2)-(5); 10

U.S.C. § 101(c)(3). “Army National Guard of the United

States” is the reserve component of the Army all of whose

members are members of the Army National Guard. 32

U.S.C. § 101(5). “Air National Guard of the United States”

is the reserve component of the Air Force all of whose

members are members of the Air National Guard. 32

U.S.C. § 101(7); 10 U.S.C. §§ 3077.

Consequently, although a state’s National Guard is a

state agency, “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.” Christoffersen

App. 20

v. Washington State Air Nat'l Guard, 855 F.2d 1437, 1441

(9th Cir. 1988), cert. denied, 490 U.S. 1098, 109 S. Ct. 2448

(1989).

The unchallenged validity of the dual enlistment

system means that the members of the [State]

National Guard . . . who are ordered into federal

service with the National Guard of the United

States lose their status as members of the state

militia during their period of active duty. If that

duty is a training mission, the training is per-

formed by the Army in which the trainee is

serving, not by the militia from which the mem-

ber has been temporarily disassociated. “Each

member of the Army National Guard of the

United States who is ordered to active duty is

relieved from duty in the National Guard of his

State or Territory, or of Puerto Rico or the Dis-

trict of Columbia, as the case may be, from the

effective date of his order to active duty until he

is relieved from that duty.” 32 U.S.C. § 325(a).

Perpich, 496 U.S. at 347-48, 110 S. Ct. at 2426. Members of

the National Guard of the United States ordered to active

duty are returned to their state National Guard status

upon relief from that duty. 32 U.S.C. § 325. “Under regu-

lations to be prescribed by the Secretary of the Army or

Secretary of the Air Force, as the case may be,” a member

of the National Guard may be ordered to perform train-

ing, in addition to the duty prescribed under 32 U.S.C.

§ 502(a). 32 U.S.C. § 502(f).

“Full-time National Guard duty” means training

or other duty, other than inactive duty, per-

formed by a member of the Air National Guard

of the United States or the Air National Guard

of a State or territory, the Commonwealth of

App. 21

Puerto Rico, or the District of Columbia under

section 316, 502, 503, 504, or 505 of this title for

which the member is entitled to pay from the

United States or for which the member has

waived pay from the United States.

32 U.S.C. § 101(19).

The Alaska Air National Guard is commanded by the

governor through the adjutant general. AS 26.05.160-170.

B. Motions at Dockets 10 and 11

1. Arguments Raised

The United States argues that Bowen’s claims against

all individually names defendants should be dismissed

for lack of subject matter jurisdiction under the doctrine

of intra-military immunity set forth in Feres v. United

States, 340 U.S. 135, 71 S. Ct. 153 (1950) because: (1) the

claims are inextricably incident to Bowen's military ser-

vice; and (2) they are not cognizable under the Federal

Tort Claims Act (“FTCA”), Bowen’s exclusive remedy. for

any tortious acts committed by federal employees and

military members acting within the scope of their

employment. With respect to its own liability, the United

States argues that: (1) a guardsman in federal training

status injured “incident to service,” falls within the

parameters of the Feres doctrine and cannot sue the

United States; and (2) this suit is premature because

Bowen has not exhausted his intra-military administra-

tive remedies. The United States further argues that

Bowen failed to state a claim under RICO, because he

does not sufficiently allege a predicate offense, a pattern

App. 22

of such activity is not identified, and the period and

nature of the conspiracy are not satisfactorily delineated.

The State makes similar arguments and additionally

assert that Bowen’s claim of alleged violation of pro-

cedural due process must be dismissed, because he has

no constitutionally protected property interest in contin-

ued employment with the Alaska National Guard. Chris-

toffersen, 855 F.2d at 1443.2

Bowen argues that defendants Oistead, Cox, Dennis,

Taylor, and Gillean were not acting as members of a

reserve of the armed forces of the United States and were

not in execution of any federal military duties, and,.thus,

were purporting to act as officers of the state militia when

they terminated Bowen’s full-time militia duty with the

State.

2. Intramilitary Immunity

The United States argues that Bowen’s status as an

AGR is inextricably bound with his military status as a

2 The State argues that Bowen has failed to state a claim for

which relief may be granted because he had no property interest

in his military position sufficient to require a pre-termination

hearing with respect to his employment in the National Guard.

The State submits the affidavit of Assistant Attorney General

Patrick J. Gullufsen, who represented the State of Alaska,

Department of Military and Veterans Affairs, in connection with

a state administrative appeal Bowen filed after his termination.

Apparently, the appeal was based on alleged violation of

procedural rights, an issue not pending before the Alaska

Supreme Court in Bowen v. State of Alaska, Department of Military

and Veterans Affairs, Alaska National Guard, Alaska Supreme

Court Nos. S-6822/S-6842.

App. 23

member of the Air National Guard and the Air Force

Reserve, such that the disciplinary standards for his posi-

tion were set and controlled by the United States Air

Force. See 32 U.S.C. § 501(a) (“The discipline, including

training, of the Air National Guard shall conform to that

of the Air Force”). As such, any claims sounding in tort

and arising out of Bowen’s status as a member of the Air

National Guard would be barred under the doctrine

established in Feres, 340 U.S. at 135, 71 S. Ct. at 153.

In Feres, the Supreme Court held that members of the

armed services could not sue the government for injuries

that arisé out of or occur in the course of activity incident

to military service, because relations between the govern-

ment and its military personnel were “distinctively fed-

eral in character,” exclusively governed by federal law,

and a comprehensive, even-handed government compen-

sation scheme was available for service-connected inju-

ries. 340 U.S. at 143-45, 71 S. Ct. at 158-59. See also United

States v. Shearer, 473 U.S. 52, 57, 105 S. Ct. 3039 (1985)

(emphasizing effect private lawsuits might have on mili-

tary discipline). “Although Feres itself did not compel

dismissal for lack of subject matter jurisdiction, such a .

result comports with the development of the doctrine,

which has grown as a judge made exception to the Fed-

eral Tort Claims Act’s (FTCA’s) waiver of sovereign

immunity.” Stauber v. Cline, 837 F.2d 395, 398 (9th Cir.),

cert. denied, 488 U.S. 817, 109 S. Ct. 55, reh’g denied, 488

U.S. 975, 109 S. Ct. 516 (1988).

“It is beyond question that the Feres doctrine gener-

ally applies to claims brought by National Guard mem-

bers.” Stauber, 837 F.2d at 399. In Stauber, the Ninth

Circuit held that state law tort claims by a civilian

App. 24

National Guard mechanic-technician against other Guard

members who allegedly harassed him arose incident to

military service and, thus, were barred by intramilitary

immunity. Although the parties had dual status as Guard

members and civilian employees for some purposes, the

court found it significant that the conduct of the parties

was subject to military command structures and military

discipline and that, as members of the National Guard,

they were under direct command of active duty military

officers. See also Stencel Aero Eng’g Corp. v. United States,

431 U.S. 666, 671-72, 97 S. Ct. 2054, 2057-58, reh’g denied,

434 U.S. 882, 98 S. Ct. 250 (1977) (barring Missouri Air

National Guardsman, injured during military training,

from recovering against United States because injuries

occurred incident to military service); Mattos v. United

States, 412 F.2d 793 (9th Cir. 1969) (applying Feres doctrine

to preclude suits by active duty service members to suits

by reservists against fellow reservists for injuries received

while on reserve training).

The Feres doctrine also has been extended to preclude

constitutional damage suits between service members for

injuries arising out of military service. See Chappell v.

Wallace, 462 U.S. 296, 305, 103 S. Ct. 2362, 2368 (1983)

(“enlisted military personnel may not maintain a suit to

recover damages form a superior officer for alleged con-

stitutional violations”); Mollnow v. Carlton, 716 F.2d 627,

628 (9th Cir. 1983), cert denied, 465 U.S. 1100, 104 S. Ct.

1595 (1984), reh’g denied, 466 U.S. 954, 104 S. Ct. 2164

(1984).

App. 25

As the Ninth Circuit recently stated:

Courts regularly decline to hear lawsuits

involving personnel actions integrally related to

the military’s unique structure. Military person-

nel cannot sue superior officers to recover dam-

ages for alleged constitutional violations

because the “relationship between enlisted mili-

tary personnel and their superior officers . . . is

at the heart of the necessarily unique structure

of the Military Establishment.”

Mier v. Owens, 57 F.3d 747, 749-50 (9th Cir. 1995) (quoting

Chappel, 462 U.S. at 305, 103 S. Ct. at 2368); Sebra v.

Neville, 801 F.2d 1135, 1142 (9th Cir. 1986) (Guard techni-

cian’s challenge to military transfer is nonjusticiable;

“transfer decisions go to the core of deployment of troops

and overall strategies of preparedness”); Christoffersen,

855 F.2d at 1444.

In some instances, personnel actions are not inte-

grally related to the military’s structure and, thus, are

justiciable. See, e.g., Bledsoe v. Webb, 839 F.2d 1357, 1360

(9th Cir. 1988) (finding that Title VII claim challenging

refusal to allow female civilian employee to embark on

Naval aircraft carrier is not so inherently military as to be

nonjusticiable); Lutz v. Secretary of the Air Force, 944 F.2d

1477, 1486 (9th Cir. 1991) (intra-military immunity did not

apply to claims brought by former Air Force major where

three sergeants broke into her office to open and dissemi-

nate her mail; challenged conduct neither arose out of nor

was incident to military service).

Here, the alleged violations of constitutional rights

clearly arise out of personnel matters uniquely involving

military command structures and military discipline.

App. 26

Therefore, the court finds Bowen’s claims against the

Uniied States and all individually named defendants

nonjusticiable.

3. RICO

The complaint alleges that individual defendants are

liable under RICO, because their actions constitute a

criminal conspiracy to deprive Bowen of his civil rights

and to injure his reputation and standing in the commu-

nity, and because defendants have engaged in a corrupt

enterprise and have used instrumentalities in interstate

commerce to advance their corrupt enterprise.

RICO provides in pertinent part:

It shall be unlawful for any person

employed by or associated with any enterprise

engaged in, or the activities of which affect,

interstate or foreign commerce, to conduct or

participate, directly or indirectly, in the conduct

of such enterprise’s affairs though a pattern of

racketeering activity or collection of unlawful

debt.

18 U.S.C. § 1962(c). “It shall be unlawful for any person to

conspire to violate . . . [subsection] (c) of this section.” 18

U.S.C. § 1962(d).

To state a claim for damages under RICO, Bowen

must first demonstrate that defendants’ conduct consti-

tutes “racketeering activity” as defined in Section 1961.

However, he has not asserted a predicate offense listed in

Section 1961. “A plaintiff in a RICO section 1962(c) case

must present proof of four RICO elements: (1) conduct (2)

of an enterprise (3) through a pattern (4) of racketeering

App. 27

activity.” Sigmond v. Brown, 828 F.2d 8 (9th Cir. 1987)

(internal quotations ommitted). “A pattern of racketeer-

ing activity does not exist unless there is evidence of two

predicate acts. Brady v. Dairly Fresh Prod. Co., 974 F.2d

1149 (9th Cir. 1992); 18 U.S.C. § 1961(5). Therefore, the

complaint fails to state a RICO claim.

C. Bowen’s Motion at Docket 13

Bowen moves for partial summary judgment against

the State and Taylor, declaring that at all relevant times

Taylor was a State employee (Director of the Air National

Guard Component of the Alaska National Guard) and,

thus, was not authorized to take adverse action in execut-

ing documents with respect to Bowen. Because the con-

troversy is not justiciable, Bowen’s motion is moot.

IV. CONCLUSION

For the reasons set out above, the motions at Dockets

10 and 11 are GRANTED. Because the action is dismissed,

the motion at Docket 13 is DENIED as moot. All other

pending motions are DENIED as moot. This action is

DISMISSED.

DATED this 8 day of February 1996 at Anchorage,

Alaska.

/s/ John W. Sedwick

JOHN W. SEDWICK

UNITED STATES

DISTRICT JUDGE

App. 28

APPENDIX D

THE SUPREME COURT OF THE STATE OF ALASKA

STATE OF ALASKA,

DEPARTMENT OF

MILITARY AND

VETERANS AFFAIRS,

ALASKA NATIONAL

GUARD,

)

Appellant and

)

Supreme Court

Nos. S-6822/6842

Superior Court

No. 3AN-93-5009 CI

OPINION

[No. 4946 -

February 13, 1998]

Cross-Appellee,

GARY W. BOWEN,

Appellee and

Cross-Appellant.

Appeal from the Superior Court of the State of Alaska,

Third Judicial District, Anchorage, Karen L. Hunt, Judge.

Appearances: Patrick J. Gullufsen, Assistant Attor-

ney General, and Bruce M. Botelho, Attorney General,

Juneau, for Appellant and Cross-Appellee. Milford H.

Knutson, Bledsoe & Knutson, Anchorage, for Appellee

and Cross-Appellant.

Before: Compton, Chief Justice, Rabinowitz, Mat-

thews, and Eastaugh, Justices, and Carpeneti, Justice pro

tem. [Moore, Justice, not participating. |

CARPENETI, Justice pro tem.

I; INTRODUCTION

Gary Bowen, who had served for nine years in the

active state service of the state organized militia, was

App. 29

involuntarily terminated from his employment in May

1993. He appealed his termination to the superior court,

arguing principally that the State Department of Military

and Veterans Affairs, Alaska National Guard (State) had

failed to follow the provisions of the Alaska Personnel

Act and had deprived him of due process of law in the

procedures that it employed in terminating his employ-

ment. The State contended that Bowen was a federal

employee and that state courts had no jurisdiction over

the matter; that, regardless of the jurisdiction of the state

courts, federal law governed the right and nature of any

hearing to which Bowen was entitled; that even if he

were a state employee the state personnel act did not

apply to him; and that the termination procedures

employed did not violate his due process rights under the

Alaska Constitution.

Superior Court Judge Karen Hunt concluded that

Alaska courts had jurisdiction over this dispute, that

Bowen was a state employee, that the Alaska Personnel

Act did not apply to him, and that his protected property

interest in full severance pay was affected without due

process under the Alaska Constitution. Judge Hunt found

that Bowen had no protected property interest in contin-

ued employment and no protected liberty interest in his

reputation and his ability to gain future employment. The

court remanded the matter to the State for a hearing to

remedy the violation concerning severance pay. Both par-

ties have appealed.

The State appeals the superior court’s decision in

several respects. The State submits that while federal law

and regulations “arguably” have completely occupied the

field of National Guard employment so that the states are

App. 30

pre-empted from legislating or regulating in this field,

states are, in any case, pre-empted from legislating or

regulating in a manner which conflicts with federal law,

and that applying “state due process law and pro-

cedures” in this case conflicts with the federal procedures

regulating removal of employees and therefore may not

control this case. In addition, the State argues that

National Guard separation and separation pay issues are

not reviewable; that Bowen failed to exhaust his adminis-

trative remedies; and that Bowen lacks a property interest

in full separation pay which is protected by due process.

Assuming Bowen's property interest in full separation

pay is protected by due process, the State further con-

tends that the requirements of due process were satisfied

by the remedies available to Bowen. Finally, the State

maintains that the superior court erred in determining

that the federal regulation governing the procedure to be

employed in connection with the discharge of a National

Guard employee was unconstitutional as applied under

the state constitution.

Bowen cross-appeals, arguing that the superior court

erred in failing to find he was entitled to: (1) the protec-

tions of the State of Alaska Personnel Act (AS 39.25.010 et

seq.), and (2) a pretermination hearing under article I,

section 7 of the Alaska Constitution. Bowen argues that

he was deprived of a liberty interest without due process

of law as guaranteed under article I, section 7, and the

Fourteenth Amendment of the United States Constitu-

tion, by being denied a pretermination administrative

hearing prior to the decision of the DMVA to terminate

his employment. Finally, Bowen argues that the superior

court erred in failing to order a trial de novo as the

App. 31

method of conducting the pretermination administrative

hearing ordered by the court, or, in the alternative, in

failing to mandate some method insuring an impartial

hearing.

We conclude that the courts of the State of Alaska

have jurisdiction over this case, that Bowen was a state

employee, that the State Personnel Act did not apply to

him, and that his property interest in full severance pay

entitled him to a hearing before his severance pay could

be reduced. We affirm the superior court in all of these

respects. We further conclude that Bowen has a protected

liberty interest in his reputation under the Alaska Consti-

tution, and therefore reverse that portion of the superior

court’s decision that held to the contrary. In all other

respects, we affirm the superior court’s order reversing

the Department of Military and Veterans Affairs’ (DMVA)

decision terminating Bowen without first giving him an

adversarial pretermination hearing.

Il. FACTS AND PROCEEDINGS

In April 1983 Gary Bowen was appointed as an offi-

cer in the state organized militia, as defined in AS

26.05.010(b)(1), for purposes of periodic training and drill

as a Judge Advocate. This is the familiar part-time duty

of the National Guard. Approximately one year later, in

June 1984, pursuant to 32 U.S.C. § 502(f) and Air National

Guard Regulation (ANGR) 35-03, Bowen was ordered to

active service in the Active Guard/Reserve (AGR). He

was ordered to full-time duty with the Alaska Adjutant

General under the Alaska Department of Military and

Veterans Affairs to serve as the Staff Judge Advocate,

App. 32

Attorney Advisor, at the headquarters of the Alaska

National Guard. Bowen was periodically reappointed to

this position by orders issued in April 1985, June 1988,

and April 1991. Each order identified 32 U.S.C. § 502(f)

and ANGR 35-03 as the authorities for the appointments;

each order also stated that the duration of the appoint-

ment was as indicated “unless sooner relieved by compe-

tent authority.”

In 1992 Bowen was directed to work on the imple-

mentation of the Alaska State Military Justice System.

Bowen's immediate supervisor on this project was Alaska

Air National Guard Colonel Jerry W. Gillean; Bowen's

supervising project officer was Alaska Air National

Guard Brigadier General Dan Dennis. In February 1993

Colonel Gillean notified Bowen that he had recom-

mended to the commander of the Alaska National Guard,

Adjutant General, Major General Hugh L. Cox III, that

Bowen be involuntarily terminated from full-time AGR

duty. Colonel Gillean cited the following reasons for this

recommendation:

a. You failed to timely and properly respond to

allegations of personal financial irregularities which were

discovered during a security reinvestigation. As a result

of these allegations your access to classified information

was withdrawn on 6 November 1992. Although you knew

that your supervisors considered this situation serious,

you took no action to respond to their concerns until you

were directed to do so on 4 Dec 92. Your response failed

to produce any documentation that would have cleared

up this concern. The dilatoriness of your response and

the inadequacy of your answers have resulted in a breach

App. 33

of trust between the leadership of the Alaska National

Guard and you as our full time staff judge advocate.

b. On 19 Nov 92 you had General Cox sign a leave

slip for yourself which you then failed to properly proc-

ess. When you returned to work on 4 January 1993, you

did not file your leave completion until I inquired into

this matter with you on 21 January 93. I also requested an

explanation of your failure to obtain a leave authorization

number and an explanation of why you delayed in clos-

ing out the leave transaction. You have not provided me

with such an explanation. You have been given a letter of

reprimand for your actions in this leave incident. This

misconduct has further eroded the relationship that

should exist between your employer and yourself

This notice advised Bowen that his recommended

termination from full-time AGR duty would be in accor-

dance with paragraph 6-5c of ANGR 35-03 and that under

these regulations he had five work days in which to file a

written response. Bowen requested and received counsel

and was also given additional time to submit his

response. Bowen then filed detailed written rebuttals to

the above charges.

In March 1993 Bowen, through private counsel,

requested a pretermination hearing to challenge the alle-

gations. This request was promptly denied by Colonel

Gillean. Gillean stated that Bowen was “not entitled to a

pretermination hearing because he [had] failed to assert a

protected interest,” and that the procedures set out in

ANGR 35-03 provided “sufficient administrative due pro-

cess safeguards” for Bowen.

App. 34

In early April 1993, after reviewing the responses

submitted by Bowen, Colonel Gillean formally recom-

mended Bowen’s termination from his Active Guard and

Reserve tour. This recommendation was forwarded with

the case file to Brigadier General Kenneth M. Taylor, Jr.,

for review.

On April 5, 1993, General Taylor notified Bowen that

he also recommended Bowen’s involuntary termination

from full-time AGR duty. Taylor restated Gillean’s rea-

sons for the recommended action and added a further

charge:

On 13 May 92, you were tasked by Maj Gen Cox,

Adjutant General Alaska National Guard, to work on the

implementation of a military justice system for the state

of Alaska. Through your personal dereliction and lack of

initiative, a plan for a military justice system was inex-

cusably delayed. Your failure to perform this task, despite

extensive supervision, has left the commanders assigned

to the Alaska National Guard no vehicle in which to

enforce discipline for an extended period of time.

In documentation running over 300 pages in length,

Bowen denied all of the allegations with detailed answers

and rebuttals. Bowen also denied that any of the charges

against him amounted to “misconduct” or wrongdoing in

any other respect.!

General Taylor’s recommendation and Bowen’s

responses were sent to Brigadier General Dan E. Dennis

' Bowen maintains that the regulation relied upon by the

State, ANGR 35-03, fails to define “misconduct” and therefore

provides no basis for termination.

App. 35

for review. General Dennis concurred in the recommen-

dation to terminate Bowen from AGR duty, which he then

formally made to Adjutant General Cox.

On May 2, 1993, Adjutant General Cox denied

Bowen’s request for a pre-termination hearing, stating he

had “reviewed AGR 35-03 and [found] this type of hear-

ing [was] not required under that regulation.” On May 3,

1993, Adjutant General Cox issued his decision on the

recommendations for separation from AGR status he had

received from the aforementioned subordinate officers:

1. I have carefully reviewed the Notification of

Action of Involuntary Separation, dated 16 April 1993,

with attachments and your response to this action.

2. I believe the preponderance of the evidence

clearly supports the termination of your full-time Air

National Guard duty (AGR) tour from the Alaska

National Guard under paragraphs 6-5(c)(1), acts of mis-

conduct, and 6-5(c)(2), professional dereliction, of ANGR

35-03. Bowen requested reconsideration which Adjutant

General Cox denied.

On May 14, 1993, Bowen submitted a letter to the

Alaska Personnel Board requesting a hearing under AS

39.25.170. This request was denied.

On May 20, 1993, the DMVA issued Special Order

AGR-092 terminating Bowen’s employment by order of

Alaska Governor Walter J. Hickel. Bowen was then issued

a Certificate of Release or Discharge from Active Duty (a

Department of Defense Form 214). Bowen was sent two

copies of the DD Form 214, one containing no indication

of the underlying reasons for his discharge and the other

App. 36

specifying an honorable discharge with reason stated as

“misconduct.”

Bowen appealed the termination of his AGR status to

the superior court, arguing that he was entitled to a pre-

termination hearing pursuant to the State Personnel Act,

AS 39.25.170, and article I, section 7 of the Alaska Consti-

tution. Bowen also argued that the denial of a pre-termi-

nation hearing deprived him of liberty and property

without due process of law in violation of both the fed-

eral and state constitutions.

The superior court concluded that Bowen was

deprived of a vested property interest in full severance

pay and was thus entitled to a full adversarial hearing

consistent with this court’s holdings in City of Ho..er v.

State, Dep't of Nat. Resources, 566 P.2d 1314, 1319-20

(Alaska 1977), and Nichols v. Eckert, 504 P.2d 1359, 1365

(Alaska 1973).2 The superior court, however, rejected

Bowen's argument that his involuntary discharge for mis-

conduct implicates a protected liberty interest both in his

reputation and his ability to gain future employment. The

superior court then reversed the action of the DMVA and

remanded the matter back to the DMVA for a pre-termi-

nation hearing.

2 The superior court reasoned that Bowen had a vested

property interest in full severance pay, and because a discharge

for misconduct or professional dereliction would result in the

reduction of the amount of severance pay to which Bowen was

otherwise entitled by almost one-half, Bowen must receive a

full, adversarial hearing as delineated under the state

constitution before this interest could be reduced.

App. 37

Bowen requested reconsideration of the portion of

the superior court’s ruling that the matter be remanded to

the DMVA, arguing that the DMVA had demonstrated a

bias and predisposition to resolve the matter adversely to

Bowen. The DMVA requested clarification of the court's

order.2 The superior court denied both motions on

November 28, 1994. :

This appeal and cross-appeal followed.

Ill. DISCUSSION

A. Standard of Review

This court exercises its independent judgment con-

cerning questions of law raised by an administrative

agency decision where there is no special agency exper-

tise. Phillips v. Houston Contracting, Inc., 732 P.2d 544, 546

(Alaska 1987); North Slope Borough v. LeResche, 581 P.2d

1112, 1115 (Alaska 1978).

B. Reviewability of Allegations of Deprivation of

Constitutional Rights by the Military

The State argues that civilian courts should not

review Bowen’s allegation that he was deprived of his

constitutional rights by the military because (1) the courts

of Alaska do not have jurisdiction over this matter, (2)

state law is pre-empted by federal law in this area, (3)

such claims are nonjusticiable, and (4) Bowen did not

3 The State asked the court to clarify whether payment to

Bowen of his full severance pay would, under the court’s

decision and order, render a hearing unnecessary.

App. 38

exhaust his administrative remedies. We reject each of

these arguments.

1. Jurisdiction

The State argues that the superior court acted beyond

the jurisdiction of a state appellate court in ruling that the

process mandated by federal regulation for separation of

members from the AGR program and for determining

eligibility for separation pay violates the due process

requisites of the state constitution. The State further

argues that this court would also exceed its jurisdiction if

it were to uphold the decision of the superior court.*

The State’s argument regarding jurisdiction> misper-

ceives what occurred below. The superior court was not

asked to rule on the constitutionality of any federal stat-

ute or of ANGR 35-03. Furthermore, the superior court

did not rule that any federal statute or regulation violates

the state constitution. The superior court held that, pur-

suant to federal law, the state constitution’s due process

clause must be followed before separation pay may be

withheld or reduced. The court also determined that

4 The State cites Kansas City Power & Light Co. v. State Corp.

Comm'n, 715 P.2d 19, 22 (Kan. 1986) (holding that if a federal

statute does not violate the Constitution of the United States, it

cannot be held unconstitutional on the grounds that it violates a

state constitution). Kansas City Power & Light does not apply to

this case because we are not addressing the constitutionality of

ANGR 35-03.

* While denominated by the State as an argument going to

jurisdiction, this is really a supremacy clause argument. For the

reasons noted below, there is no supremacy clause violation

here.

App. 39

Bowen, as a member of the state National Guard, is a

state employee. State courts have jurisdiction to decide

cases regarding the discharge of members of the National

Guard who are state employees. E.g., Sorrentino v. Ohio

Nat’! Guard, 560 N.E.2d 186, 190-91 (Ohio 1990) (recogniz-

ing court’s jurisdiction to decide cases regarding dis-

charge of state National Guard members not in active

federal service under modern militia system). The supe-

rior court was correct in both regards. We hold that

Alaska has jurisdiction in this case.

2. Pre-emption

The State argues that Congress and the Secretary of

the Air Force have acted to regulate comprehensively the

administration of the AGR program in the Alaska Air

National Guard, including the procedures to be followed

in the case of separation, and that the states are pre-

empted from applying additional and different pro-

6 We set out the tests for federal pre-emption in Totemoff v.

State, 905 P.2d 954 (Alaska 1995):

Federal law can preempt state law in three ways.

First, Congress may expressly declare that state law is

preempted. Second, state law is preempted if

Congress intends the federal government to occupy a

field exclusively. Third, federal law preempts state

law if the two actually conflict. See, e.g., Wisconsin

Pub. Intervenor v. Mortier, 501 U.S. 597, 604-05, 111

S.Ct. 2476, 2481-82, 115 L.Ed.2d 532 (1991); English v.

General Elec. Co., 496 U.S. 72,, 78-79, 110 S.Ct. 2270,

2274-75, 110 L.Ed.2d 65 (1990).

App. 40

federal law or regulation does not comprehensively

occupy the field, state law cannot stand if it conflicts with

federal regulation.”

While the federal government might have acted to

regulate comprehensively the administration of the AGR

program in the Alaska Air National Guard, it has not

done so. Examination of two federal laws shows this.

First, 32 U.S.C. § 324(b) allows termination of a National

Id. at 958. The State relies on only the second and third pre-

emption tests set out in Totemoff. For more recent discussions of

the pre-emption doctrine, see State v. Arnariak, 941 P.2d 154

(Alaska 1997).

7 In response, Bowen maintains that the doctrine of

“federal pre-emption” only applies where federal courts are

granted exclusive jurisdiction over a federal cause of action to

the exclusion of any state court. Bowen argues that the general

rule is that state courts are considered presumptively competent

to adjudicate issues and claims arising under federal law, citing

Yellow Freight System, Inc. v. Donnelly, 494 U.S. 820, 823 (1990).

Bowen's argument is not responsive to the State’s

argument. The State’s argument goes to the power of the State to

legislate or pass regulations either at all or in conflict with the

federal laws and regulations. Bowen’s response concerns the

jurisdiction of state courts, another aspect of pre-emption and

one which the State does not argue here.

In summary, there are some areas of federal law in which

the states may not legislate or regulate but state courts may

adjudicate the disputes which arise under federal law. The State

takes the position that this case fits in this category. There are

other areas of federal law where the states not only may not

legislate or regulate, the state courts may not adjudicate. Bowen

argues that the State claims that this is such an area. The State

has not made that argument.

App. 41

Guard officer “as provided by the laws of the State.”®

Congress has chosen to affirm, rather than abridge, the

states’ role in terminating officers of their National

Guards. This is clear recognition that state law may pro-

vide additional termination requirements.

Second, analysis of ANGR 35-03 shows that the regu-

lation was drafted with the applicability of state laws in

mind. Chapter 6, section 6-5(a) of the regulation provides

in relevant part that personnel will be involuntarily

removed from full-time National Guard duty only [AW

[in accordance with] procedures prescribed herein and

only after the state Adjutant General determines that all

applicable laws and regulations have been complied

with. (Emphasis added.) Given that termination of a

National Guard officer may only be “as provided by the

laws of the State” under 32 U.S.C. § 324(b), and given that

the Adjutant General must determine that all applicable

laws have been complied with, it is clear that applicable

8 The statute provides in relevant part that

the appointment of an officer of the National Guard

may be terminated or vacated as provided by the laws

of the State or Territory of whose National Guard he is

a member. ...

(Emphasis added.) Emphasizing the role of the states in

procedures involving termination of National Guard officers, 32

U.S.C. app. § 1101.5 (National Guard Regulations) provides in

part:

Termination of appointments and withdrawal of

Federal recognition — (a) Authority

The termination of the appointment of a

commissioned officer of the National Guard is a

function of the State authorities.

App. 42

state constitutional provisions must be enforced in the

termination process.? Nothing in the federal statute or

regulations appears to disallow the application of state

constitutional requirements in addition to the procedures

set out in ANGR 35-03; indeed, the statute and regula-

tions invite state law participation in the termination

process. We therefore conclude that Congress has neither

expressly nor impliedly pre-empted state law in this field.

Only one termination procedure exists, which elimi-

nates the possibility of conflicting decisions. Given the

language in ANGR 35-03 and 32 U.S.C. § 324, there is no

inherent conflict between the termination procedures set

forth in ANGR 35-03 and additional state constitutional

procedural safeguards. In short, there is no conflict with

federal law. Therefore, we conclude there is no federal

pre-emption and affirm the ruling of the superior court.

* It should also be noted that ANGR 35-03, Chapter 1,

section 1-4 allows the state Adjutant General to supplement the

regulation “provided the specific requirements herein are not

abridged.” The addition of a requirement of a hearing does not

in any way abridge any of the specific requirements of ANGR

35-03, section 6-5 (Separation for Cause and Procedure). Rather,

it supplements them. The state Adjutant General, who under

ANGER 35-03, section 1-4, “is authorized to issue supplements”

to the regulation, is not prohibited by the regulation from

following state constitutional requirements as well as the

regulation.

App. 43

3. Justiciability

The State argues that AGR separation and separation

pay issues are nonjusticiable.!° The State cites a test

adopted in Christoffersen v. Washington State Air Nat'l

Guard, 855 F.2d 1437, 1442 (9th Cir. 1988).!! We decline to

10 Nonjusticiability claims are most often raised in the

context of “political questions,” about which we have said:

“{t]here are certain questions involving coordinate branches of

the government, sometimes unhelpfully called political

questions, that the judiciary will decline to adjudicate.” Abood v.

Gorsuch, 703 P.2d 1158, 1160 (Alaska 1985). As we noted in Abood

v. League of Women Voters, 743 P.2d 333 (Alaska 1987), “[iJt is not

possible to draw the exact boundary separating justiciable and

nonjusticiable questions.” Id. at 336. This conclusion rested on

Poe v. Ullman, 367 U.S. 497 (1961). In his plurality opinion,

Justice Frankfurter wrote:

Justiciability is of course not a legal concept with a

fixed content or susceptible of scientific verification.

Its utilization is the resultant of many subtle

pressures, including the appropriateness of the issues

for decision . . . and the actual hardship to the

litigants of denying them the relief sought.

Id. at 508-09. The United States Supreme Court has identified a

number of elements, one or more of which is “[p]rominent on

the surface of any case held to involve a political question.”

Baker v. Carr, 369 U.S. 186, 217 (1962). Of the elements identified

by the Supreme Court, the only one even arguably present in

this case is “the impossibility of a court’s undertaking

independent resolution [of the case] without expressing lack of

the respect due coordinate branches of government.” Id. For the

reasons set out in the text, we conclude that this element is not

in fact present here.

11 Under this test, review of internal military decisions

requires, first, an allegation that a recognized constitutional

right has been violated and a showing that all intraservice

remedies have been exhausted. If these prerequisites are met,

App. 44

apply the Christoffersen test because Bowen is a state

employee, not a federal employee. Furthermore, the ques-

tion whether deprivation of property rights by an Alaska

administrative agency is sufficient to invoke constitu-

tional due process is not one of military expertise or one

which causes interference with the military mission.!2

This court is not being called upon to intrude into

any issues of military doctrine or other matters commit-

ted to the expertise of military commanders. Rather, we

are asked to review the decision of the superior court that

analyzed the actions of the DMVA and determined that it

transgressed the constitutional rights of one of its

employees. We therefore hold the issues on appeal in this

case are justiciable.

four additional factors must be weighed. Then, only if the

balance favors court interference, will review be undertaken.

Christoffersen, 855 F.2d at 1442.

12 It is within the province of this court to determine

constitutional issues and deprivation of constitutional rights.

See Kiester v. Humana Hosp. Alaska, Inc., 843 P.2d 1219, 1223

(Alaska 1992) (holding court would determine whether the

procedures employed by hospital conformed to Alaska

Constitution and were in accordance with basic principles of

fairness and due process of law); see also Emory v. Secretary of

Navy, 819 F.2d 291, 294 (D.C. Cir. 1987) (“The military has not

been exempted from constitutional provisions that protect the

rights of individuals. . . . It is precisely the role of the courts to

determine whether those rights have been violated.”); Dillard v.

Brown, 652 F.2d 316, 319-20 (3d Cir. 1981) (upholding

justiciability of sex discrimination and constitutional privacy

claims brought by female enlistee who was discharged from

New Jersey National Guard because constitution does not

prevent a federal court from entertaining an appropriate

constitutional claim brought against the military).

App. 45

4. Exhaustion of Administrative Remedies

The State argues that in concluding that Bowen was

entitled to an adversarial hearing under state law before

his separation pay could be reduced, the superior court

overlooked Bowen’s failure to exhaust his intraservice

administrative remedies in this regard. The State con-

tends that Bowen could have sought relief from the Air

Force Board for Correction of Military Records

(AFBCMR) under 10 U.S.C. § 1552 and 32 C.F.R. § 865.1 et

seq. The State asserts that the AFBCMR is available, upon

application by a member of the National Guard, to review

a nonretention decision on a claim that it was the result of

error or injustice and to correct the member’s records and

reinstate pay and other federal compensation or benefits

that were lost.

This issue not having been properly raised before the

superior court, we will not consider it on appeal.'* We

have previously held:

Waiver in superior court may occur either in

a suit initiated there, or when the superior court

is reviewing agency action. In agency review, an

'3 Bowen also argues that Boards for Correction of Military

Records of the various armed services are inappropriate to

determine constitutional claims. See Glines v. Wade, 586 F.2d 675,

678 (9th Cir. 1978), rev'd on other grounds, 444 U.S. 348 (1980)

(“Resolving a claim founded solely upon a constitutional right

is singularly suited to a judicial forum and clearly inappropriate

to an administrative board.”) (quoting Downen v. Warner, 481

F.2d 642, 643 (9th Cir. 1973)); but see Guerra v. Scruggs, 942 F.2d

270, 273 (4th Cir. 1991) (“The ABCMR has authority to consider

claims of constitutional. . . . violations.”).

App. 46

issue may be abandoned on appeal to the supe-

rior court, either by failing to include it in the

points on appeal or by inadequate briefing.

Nenana City Sch. Dist. v. Coghill, 898 P.2d 929, 934

(Alaska 1995) (citation omitted). See also Zeman

v. Lufthansa German Airlines, 699 P.2d 1274, 1280

(Alaska 1985) (“As a general rule, a party may

not present new issues or advance new theories

to secure a reversal of a lower court decision.”)

(citing O'Neill Investigations, Inc. v. Illinois

Employers Ins. of Wausau, 636 P.2d 1170, 1175 n.7

(Alaska 1981)); Williams v. Alyeska Pipeline Serv.

Co., 650 P.2d 343, 351 (Alaska 1982) (holding

argument not raised before superior court will

not be considered on appeal).

The State concedes that it did not raise this

issue specifically before the superior court, but

contends that its arguments before the court

specifically and impliedly urged deference to

the existing military administrative process and

avoidance of judicial interference. The State

asserts that this is a central theme of the exhaus-

tion principle. Citing this court’s adoption of a

“liberal approach” in determining whether an

issue was raised in the superior court,'* the

State submits that the exhaustion issue should

not be deemed waived.

'4 The State cites to Zeman, 699 P.2d at 1280, where this

court stated that if arguments (1) are not dependent on new

facts, (2) are closely related to [the party's] trial pleadings and

(3) could have been gleaned from the pleadings . . . [t]he

appellant need not have expressly presented every theory

supporting an argument before the trial court, but can expand

or refine details of an argument otherwise preserved on appeal.

App. 47

In its brief before the superior court the State argued

the following:

A. Major Bowen Was Not a State

Employee.

B. If Major Bowen Is Not a State

Employee, Then His Employment Is a Federal

Matter and Beyond the Jurisdiction of This

Court.

C. Regardless of Who the Employer Was,

the Employment Contract Made Federal Regula-

tions Applicable to Major Bowen’s Employment.

D. Federal Law Governs the Right to and

Nature of Any Hearing.

E. The Procedures in ANGR 35-03 Satisfy

the Requirements of Due Process.

Obviously, none of these arguments included a claim that

Bowen failed to exhaust his administrative remedies.

Additionally, we have reviewed the entire text of each

argument set out under each of these headings. None

raises the issue of exhaustion of administrative remedies.

Even when viewing the State’s pleadings before the supe-

rior court liberally, there is no allegation whatsoever of

the issue now argued before this court. Therefore, we

hold that this issue was waived because the State failed to

include it in its brief to the superior court. Nenana City

Sch. Dist., 898 P.2d at 934.

App. 48

C. Separation Pay

1. Whether Bowen has a property interest in

full separation pay

As a State employee under the National Guard AGR

program, Bowen’s pay was federally funded under 32

U.S.C. § 502(f). Upon his termination he was entitled to

severance pay under Department of Defense Pay Manual

(DoDPM), Chapter 4, Section B, 4041la. Once DMVA

determined that Bowen was guilty of “misconduct,” how-

ever, his severance pay was reduced by one-half and he

lost severance pay in the approximate amount of $37,030.

DoDPM, Chapter 4, Section B, 40411b.

The superior court found that property interests pro-

tected under Alaska’s due process clause are defined by

existing state laws, rules, or customs. The superior court

relied on Breeden v. City of Nome, 628 P.2d 924, 926 (Alaska

1981) (quoting Board of Regents v. Roth, 408 U.S. 564, 577

(1972)), in which this court stated:

Property interests, of course, are not created by the

Constitution. Rather, they are created and their dimen-

sions are defined by existing rules or understandings that

stem from an independent source such as state law -

rules or understandings that secure certain benefits and

that support claims of entitlement to those benefits.'5

The superior court found that where pay manuals

define the amount of separation pay due an employee

5 In Breeden, this court held that a city employee's

contractual right to a thirty-day notice of termination created a

protected property interest. Id. at 926.

App. 49

upon involuntary discharge, the employee has a legiti-

mate expectation of a certain amount of such pay upon

involuntary termination. The court concluded that Bowen

established a protected property interest in such pay.

The State contends that Bowen does not have a prop-

erty interest in full separation pay. The State maintains

that separation pay for an AGR member is only payable

upon the member being involuntarily released before the

scheduled end of a tour, and then it is only available to

those who meet the eligibility requirements outlined in

DoDPM. The State argues that a member with AGR status

cannot place any reasonable reliance upon a benefit that

becomes available only in the event that the member is

ordered out of the program before his or her tour comes

to an end.

The State also points to DoDPM Chapter 4, Section B,

40412, entitled “Limitations of Eligibility”:

Service members separated under the fol-

lowing circumstances are not eligible for separa-

tion pay:

1. A determination is made by the secre-

tary concerned in an extraordinary case that the

conditions under which the member is sepa-

rated do not warrant separation payment. This

authority is not to be delegated. It is intended

that this discretionary authority to deny pay-

ment will be used sparingly.

The State then argues that nothing in the DMVA’s regula-

tory scheme vests Bowen with a right to separation pay.

App. 50

Bowen maintains that DMVA’s determination that he

committed acts of misconduct without affording him the

opportunity to challenge that accusation, resulting in a

loss of $37,030 in separation pay, was a deprivation of a

property interest without due process of law.

In our view the fact that separation pay is payable

only upon involuntary separation and that there are cer-

tain defined situations, such as Bowen's, where it can be

reduced or in an “extraordinary” case eliminated does

not diminish an employee's legitimate expectation of sep-

aration pay upon involuntary termination. Separation

pay is a concept defined in DoDPM, Chapter 4, Section B,

and the DoDPM rules define the amount of separation

pay due an employee. Simply because some involuntarily

separated employees may receive less than full separa-

tion pay based on a specific finding by the DMVA war-

ranting the decrease under the DoDPM rules, it does not

follow that such employees did not have a legitimate

expectation of a certain amount of separation pay upon

involuntary termination. Nor does it support the conclu-

sion that the pay may be diminished or eliminated in an

unfair manner.

As to the process which was provided to Bowen, his

request for a pre-termination hearing was denied, as was

his request for reconsideration. Thus, Bowen was pro-

vided no opportunity for a hearing before his separation

pay was reduced.

We conclude, as the superior court did, that Bowen

was deprived of a vested property interest in full sever-

ance pay and was entitled to a full adversarial hearing

consistent with this court's holdings in City of Homer, 566

App. 51

P.2d at 1319-20 and Nichols, 504 P.2d at 1365. Bowen was

not afforded such a hearing before the deprivation of his

severance pay, and thus Bowen was not provided due

process under the Alaska Constitution.

We therefore affirm this legal conclusion of the supe-

rior court and hold that Bowen has a property interest in

full separation pay entitled to due process protection.

2. Whether sufficient due process to protect

Bowen’s property interest is provided in the

intraservice remedies available to him

The State argues that even if full separation pay is a

benefit entitled to due process protection, Bowen’s ability

to pursue his eligibility for full separation pay through

either the AFBCMR or the Air Force Discharge Review

Board is a remedy sufficient to satisfy due process in

these circumstances. The State failed to make this argu-

reject this argument. See supra pp. 17-19. Moreover, courts

have questioned the appropriateness of leaving to admin-

istrative agencies the resolution of constitutional claims.

See supra n.13.

‘6 Although the State argued before the superior court that

the requirements of due process had been satisfied, this

argument referred only to the procedures in ANGR 35-03. The

State did not argue due process was satisfied by virtue of the

existence of the AFBCMR or the Air Force Discharge Review

Board.

App. 52

D. Whether Bowen Is a State Employee and

Whether He Is Entitled to the Protections of the

Alaska Personnel Act

Bowen, a staff judge advocate serving in the AGR

program, was a state employee anc a member of the

Alaska National Guard subject to state National Guard

statutes and regulations. See U.S. ex rel. Karr v. Castle, 746

F. Supp. 1231, 1237 (D. Del. 1990), withdrawn in part, 768 F.

Supp. 1087 (D. Del. 1991), aff'd sub nom. U.S. v. Carper, 22

F.3d 303 (3d Cir. 1994) (“The intent of Congress was, and

is, that National Guard personnel serving in the ‘Full-

Time Manning Program’ now included in a DOD pro-

gram called Active Guard and Reserve (AGR) serve

under 32 U.S.C. § 502(f) in conventional National Guard

status, i.e., under State control as opposed to service in

the active military service of the United States in

Reserves of the Army or Reserves of the Air Force sta-

tus.”) (quoting H.R. Rep. No. 943, 97th Cong., 2d Sess. 31

(1982)). As the Supreme Court observed in Maryland v.

United States, 381 U.S. 41, 48 (1965), remanded on_other -

grounds, 382 U.S. 159 (1965):

It is not argued here that military members

of the Guard are federal employees, even

though they are paid with federal funds and

must conform to strict federal requirements in

order to satisfy training and promotion stan-

dards. Their appointment by state authorities

and the immediate control exercised over them

by the States make it apparent that military

members of the Guard are employees of the

States, and so the courts of appeals have uni-

formly held.

(Emphasis added.)

App. 53

The determination that Bowen is a state employee

does not end the inquiry, however. Alaska Statute

26.05.060 specifies what statutes and regulations apply to

members of the Alaska National Guard:

The governor as ex officio commander of

the militia of the state has command of the

Alaska National Guard and the Alaska Naval

Militia while they are not in active federal ser-

vice. The governor may adopt necessary regula-

tions for them not inconsistent with 48 U.S.C.

§ 473-479. Except as otherwise prescribed by

those sections, the Alaska National Guard and

the Alaska Naval Militia and their members are

subject to all federal laws and regulations relat-

ing to the National Guard and Naval Militia of

the several states and the territories and of the

United States.

See also AS 26.05.340.'7 Although it has had the power to

do so, Alaska has not adopted any regulations concerning

the organization, administration or management of state

National Guard personnel.

Air National Guard Regulation 35-03 “prescribes pol-

icy and procedures for administering and managing full-

'7 Alaska Statute 26.05.340(d) provides:

\g All matters relating to the organization,

discipline and government of the National Guard or

Naval Militia, not otherwise provided for by the laws

of the United States, this chapter, or regulations

adopted by the president shall be governed by

regulations adopted by the adjutant general and

approved by the governor, and the regulations when

adopted, have the same force and effect as though

enacted in this chapter.

App. 54

time National Guard personnel serving in the full-time

military duty program under 32 U.S.C. § 502(f)” that were

in effect during Bowen's tour of duty.'® ANGR 35-03,

Chap. 1, § 1-1. Chapter 6, section 6-5d of ANGR 35-03 sets

forth the procedure for involuntary termination. That

section contains no provision for a pretermination hear-

ing.

Alaska Statutes 26.05.060 and 26.05.340 specifically

provide that Alaska National Guard personnel are subject

to the federal laws and regulations relating to the

National Guard and any supplemental regulations

adopted by the Alaska Adjutant General and approved

by the Governor. No such regulations have been adopted.

Because no statute or regulation has been adopted which

applies the Alaska Personnel Act to termination of a

member of the state National Guard, the hearing protec-

tions set forth in the Alaska Personnel Act do not apply

to Alaska National Guard personnel.

We further hold that ANGR 35-03, Chapter 6, Para-

graph 6-5a, does not mandate that Bowen’s involuntary

separation comport with all aspects of Alaska state law.

The regulation states only that “the state Adjutant Gen-

eral [must] determine| ] that all applicable laws and regu-

lations have been complied with.” (Emphasis added.) By

virtue of the failure of the state to adopt regulations

which would apply the Alaska Personnel Act to military

'S ANGR 35-03 was superseded by Air National Guard

Instruction (ANGI) 36-101, effective December 29, 1993.

Bowen's involuntary separation occurred in May 1993, while

ANGR 35-03 was still in effect, and it is that regulation that

applies to this case.

Katie hud Eat PO SOE ite Eee ba Ree

App. 55

personnel, as it might have done under AS 26.05.060 and

AS 26.05.340 but did not do, we conclude that the person-

nel act is not applicable to Bowen.

Finally, we disagree with Bowen's contention that the

failure to list military employees in AS 39.25.110’s list of

state employees who are exempt from the personnel act

means that the act applies to Bowen. The statute is not an

exhaustive list of exempt employees. The statute provides

in relevant part:

Unless otherwise provided by law, the following

positions in the state service constitute the exempt service

and are exempt from the provisions of this chapter and

the rules adopted under it. . . . Thus, exempt status may

be derived from provisions of law other than AS

39.25.110. Because the Alaska legislature adopted federal

personnel rules and regulations regarding promotion and

separation in the Alaska National Guard, it “otherwise

provided by law” that Alaska National Guard members

were exempt, and thus excluded from the provisions of

the Alaska Personnel Act.

We conclude that in the absence of any supplemen-

tary regulation pursuant to AS 26.05.060 or AS 26.05.340,

the state has adopted federal law and regulation, speci-

fically ANGR 35-03, as setting forth the policies to be

followed for administering and managing full-time

National Guard personnel. Therefore, we hold that the

language of ANGR 35-03, Chapter 6, Paragraph 6-5a,

does not cause the Alaska Personnel Act to be applicable

to National Guard personnel.

App. 56

We therefore affirm the holding of the superior court

that Bowen is not entitled to the protections of the Alaska

Personnel Act.

E. Whether Bowen Has a Due Process Right to a

Hearing under Article I, Section 7 of the Alaska

Constitution

Article I, section 7 of the Alaska Constitution pro-

vides in part:

No person shall be deprived of life, liberty

or property without due process of law... .

This court held in Nichols, 504 P.2d at 1362, that for |

the right to due process to attach, there must be a “state

action and deprivation of an individual interest of suffi-

cient weight to warrant constitutional protection.”

Accordingly, the question in this case is whether Bowen

was deprived of a protected liberty interest without due

process of law by being denied a pre-termination admin-

istrative hearing.

Bowen asserts that he was so deprived. He argues

that “[t]he liberty interest requiring a pretermination due

process hearing applies any time the government takes

action against a public employee by leveling serious

charges causing a stigma or other disability to arise

against the employee thus foreclosing the employee's

freedom to take advantage of other employment oppor-

tunities.”

Bowen maintains that every time he seeks future

employment or attempts to pursue his chosen profession,

the practice of law, he may be obliged to explain why a

App. 57

previous termination of employment was for acts of “mis-

conduct.” This argument has merit. Although Bowen was

provided with two copies of his DD Form 214, one which

contained no information concerning his discharge and

one which stated that he had been honorably discharged

for “misconduct,” Bowen could still be asked the reasons

for his discharge. Furthermore, the “sanitized” copy of

his DD Form 214 does not list any information what-

soever concerning Bowen’s discharge, which would very

likely prompt questions on the subject during future

employment interviews.

Additionally, in today’s sophisticated market place, it

is reasonable to conclude that prospective employers

understand the language and importance of a DD Form

214. See Casey v. United States, 8 Cl. Ct. 234, 242-43 (1985)

(prospective employers know and understand the coded

designators used on DD-214’s and routinely ask dis-

charged servicemen for the forms, “[t]hus, stigmatizing

and derogatory information must only be given to ser-

vicemen who have been afforded elementary due process

rights”).

The cited reason for Bowen’s discharge, “miscon-

duct,” is sufficiently stigmatizing to implicate a liberty

interest triggering due process protection in these circum-

stances. General allegations of misconduct are sufficiently

damaging to the reputation of a military employee and an

attorney to implicate that employee's liberty interest. We

therefore hold that Bowen is entitled to a pretermination

administrative hearing under article |, section 7 of the

App. 58

Alaska Constitution, as to his reputation interest in addi-

tion to his interest in full severance pay.!?

F. Whether Bowen Is Entitled to a Trial De Novo or

a Hearing outside the Auspices of the DMVA

The superior court held that given Bowen’s protected

property interest in full severance pay, he was entitled to

a pretermination adversarial hearing under City of Homer,

566 P.2d at 1319-20, and Nichols, 504 P.2d at 1365.

Bowen requested reconsideration of the portion of

the superior court’s order remanding the case to the

DMVA for hearing, arguing that “[t]he undeniable fact is

that Bowen cannot receive anything resembling a fair and

impartial hearing from any organization, group, board or

panel appointed under the control and auspices of the

Department of Military and Veteran’s Affairs or Alaska

National Guard.” Bowen appeals from the superior

court's denial of reconsideration.

Bowen's charge of bias on the part of the DMVA and

the Alaska National Guard is not established by the

record. Consequently, there is no basis for his claim of

entitlement to a trial de novo. We therefore affirm the

order of the superior court and deny Bowen's request for

‘’ The superior court concluded that Bowen did not have a

property interest in continued employment, and Bowen attacks

this determination on appeal. We decline to review this

question, because our decision that he was deprived of a

protected liberty interest in his reputation and must be afforded

a hearing on that issue makes this issue moot.

App. 59

a trial de novo. Bowen may, however, make interim appli-

cation to the superior court for further relief, once the

procedure for his hearing is set by the DMVA, upon a

showing that the procedures established by the DMVA

are unfair.

IV. CONCLUSION

For the reasons set out above, we AFFIRM the supe-

rior court’s determinations that Alaska courts have juris-

diction of this dispute, that Bowen was a state employee,

that the Alaska Personnel Act did not apply to him, and

that his protected property interest in full severance pay

was violated without due process under the Alaska Con-

stitution. We therefore AFFIRM the superior court’s order

reversing the DMVA’s decision to terminate Bowen's

employment without first giving him a pretermination

hearing, and we AFFIRM the superior court’s determina-

tion that a trial de novo is not required. Having con-

cluded that Bowen had a liberty interest in his reputation

under the Alaska Constitution, we REVERSE that portion

of the superior court’s opinion which held to the contrary.

We REMAND the matter to the superior court for remand

to the DMVA for a pretermination hearing.

App. 60

APPENDIX E

EXCERPTS OF CORRESPONDENCE

The relevant portions of a letter from Richard K. Willard,

Assistant Attorney General (Civil), U.S. Department of

Justice to Maj. General John L. France, The Adjutant

General, State of Colorado dated Jan 12, 1988, regarding

federal representation of full-time Colorado National

Guard personnel, provide in pertinent part:

“ . . . full-time National Guard recruiters called to

active duty pursuant to 32 U.S.C. § 502(f), such as

the defendants in this case, have been statutorily

defined by Congress to be state rather than federal

employees. Thus, a full-time National Guard recrui-

ter is on full-time National Guard Duty, and ts not

on ‘active military service of the United States.’ 32

U.S.C. § 20112) .:.. . a § 10S)... .

“Because Congress has stated that full-time

National Guard recruiters are not federal employees,

there is no basis to change the Civil Division's origi-

nal determination to deny the recruiters’ request for

representation, pursuant to 28 C.F.R. § 50.15(a)(2).”

The relevant portion of a Memorandum from James E.

Hise, Chief Counsel, National Guard Bureau, Depart-

ments of the Army and Air Force, Dated 6 August 1990,

Regarding Correspondence with Offices of the Judge

Advocates General of the Air Force and Army provides in

pertinent part:

“Pursuant to 10 USC § 3040, ‘The National

Guard Bureau is the channel of communication

between the departments concerned’ (the Depart-

ment of the Army and the Department of the Air

Force) ‘and the several States, Territories . . . on all

App. 61

matters pertaining to the National Guard.’ All

National Guard Judge Advocates are reminded that

correspondence and communications with the Offices

af the Judge Advocates General of the Air Force and

Army, including their respective schools should be

routed through the office of the Chief Counsel, NGB-

IA.”

The relevant portions of a letter from Col. Brad Farber,

Bureau Judge Advocate, The National Guard Bureau,

Departments of the Army and the Air Force, to Milford

H. Knutson, Esq., dated March 22, 1993 provide in perti-

nent part:

... “Iam also unable to take action to recind

the recommendation for relief in Major Bowen's case.

Relief from the AGR program is strictly a state

matter, governed by the provision of Air National

Guard Regulation 35-03. No existing statute or reg-

ulation gives any portion of the National Guard

Bureau the authority to intervene in these actions.

Therefore, any recission such as you request would

have to come from officials of the Alaska National

ee ne

The relevant portions of a memorandum from Major Gen-

eral Hugh L. Cox III, Adjutant General, Headquarters,

Alaska National Guard, to Department of the Air Force,

Office of the Judge Advocate General, dated November 3,

1993, regarding Representation of the Alaska National

Guard in Gary W. Bowen’s Alaska State Court Action,

provide in pertinent part:

“Captain Watson advised my Staff Judge Advo-

cate, Major Musick, that the National Guard Bureau

will not become involved in this matter. . . . The

Alaska Attorney General’s office is currently repre-

senting the Guard, but has indicated if there ts an

App. 62

adverse judgement they intend to present it to the

federal government for payment.” .

rhe relevant portions of memorandum from Col. Raul F.

Barbara, Chief, Litigation Division, Air Force Legal Ser-

vices Agency, to NGB-JA (Col Farber regarding federal

represention of the Alaska National Guard, dated 16 Dec.

1993, provide in pertinent part:

“We have reviewed the request for federal repre-

sentation in Bowen v. State of Alaska et al. The

Department of Justice (DOJ) has no authority to

represent a state or state agency, simply on the basts

that a federal interest may be involved.” . .

The relevant portions of a memorandum from Col. Brad

Farber, Bureau Judge Advocate, National Guard Bureau,

Departments of the Army and Air Force, to The Adjutant

General, Alaska National Guard, regarding the request

for federal representation, provide in pertinent part:

“Forwarded for you (sic) information and action

is the response received by this office concerning

your requests for federal representation in the Bowen

case. As you can see, Air Force Litigation Division

will not support your request.” . .

The relevant portions of a memorandum from Col. Brad

Farber, Bureau Judge Advocate, National Guard Bureau,

Departments of the Army and Air Force, to Col. Jerry W.

Gillean, dated “22 Jan 1992” regarding “Request for Legal

Advice Regarding Maj. Gary W. Bowen”, provide in perti-

nent part:

.. . therefore, the state National Guard, not

the National Guard Bureau, has the responsibility

for administering matters such as the personnel

issues presented in your request. . .

App. 63

“Finally, we believe that you have access to legal

advisory resources. As a state agency, the National

Guard should have access to legal advice and services

from the state Attorney General.” .. .

The relevant portions of a letter from Col. Brad Farber,

Bureau Judge Advocate, National Guard Bureau, Depart-

ments of the Army and Air Force, to Major Gary W.

Bowen, dated 31 October, 1994, regarding complaints for

wrongs under Article 138, UCMJ, provide in pertinent

part:

“According to records maintained in the Per-

sonnel Directorate, Air National Guard Readiness

Center (ANGRC/DP), you are serving as a tradi-

tional guard member. As such, you are not in federal

service and are not subject to the UCM]. Therefore,

Article 138 UCM], is not available to you.”

App. 64

APPENDIX F

CONSTITUTIONAL, STATUTORY AND

REGULATORY PROVISIONS

Article 1, Section 8, of the United States Constitution

provides, in pertinent part: “The Congress shall have the

power... To provide for organizing, arming, and disci-

plining the Militia, and for governing such part of them as

may be employed in the Service of the United States, reserving

to the States respectively, the Appointment of the Officers, and

the authority of training the Militia... ”. (Emphasis sup-

plied)

The Eleventh Amendment to the United States Con-

stitution provides in pertinent part: “The judicial power

of the United States shall not be construed to extend to

any suit in law or equity, commenced or prosecuted

against one of the United States by citizens of another

plete 8

10 U.S.C. § 10110 provides in relevant part: “The Air

Force Reserve is a reserve component of the Air Force to

provide a reserve for active duty. It consists of the mem-

bers of the officer’s section of the Air Force Reserve and of

the enlisted section of the Air Force Reserve. It includes all

Reserves of the Air Force who are not members of the Air

National Guard of the United States.” (Emphasis supplied).

1 Although the literal language of the Amendment is not a

bar to suit by a citizen against his own state, it has been so

interpreted. Employees of the Department of Public Health &

Welfare, State of Missouri, et al. v. Department of Public Health &

Welfare, State of Missouri, (1973) 411 U.S. 279, 36 L.Ed.2d 251, 93

S.Ct. 1614.

App. 65

10 U.S.C. § 8379 provides in pertinent part: “Niot-

withstanding any other provision of this chapter [10

U.S.C. §§ 8351 et. seq.], the appointment of commissioned

officers of the Air National Cuard is a function of he

governor or other appropriate authority of the jurisdic-

tion concerned.”

10 U.S.C. § 10113 provides in pertinent part: “When

not on active duty, members of the Air National Guard of

the United States shall be administered, armed, equipped,

and trained in their status as members of the Air National

Guard.

10 U.S.C. § 12401 provides in pertinent part: “Mem-

bers of the Army National Guard of the United States and

the Air National Guard of the United States are not in

active federal service except when ordered thereto under

la W.

10 U.S.C. § 12403 provides in pertinent part: “Mem-

bers of the Army National Guard of the United States

ordered to active duty shall be ordered to duty as

Reserves of the Army. Members of the Air National

Guard of the United States ordered to active duty shall be

ordered to duty as Reserves of the Air Force.”

10 U.S.C. § 12405 provides in pertinent part: “mem-

bers of the National Guard called into Federal service are,

from the time when they are required to respond to the

call, subject to the laws and regulations governing the

Army or Air Force, as the case may be, except those

applicable only to the members of the Regular Army or

Regular Air Force, as the case may be.”

App. 66

32 U.S.C. § 324(b) provides in pertinent part: “The

Appointment of an officer of the National Guard may be

terminated or vacated as provided by the laws of the

State or Territory of whose National Guard he is a mem-

ber.

32 U.S.C. § 325 provides in pertinent part: “(a) Each

member of the Army National Guard of the Air National

Guard of the United States who is ordered to active duty

is relieved from duty in the National Guard of his State of

lerritory, or of Pucrto Rico or the District of Columbia, as

the case may be, from the effective date of his order to

active duty until he is relieved from that duty.”

ANGR 35-03, Ch 6, § 6-5(a) provides in pertinent

part: “ ... personnel will be involuntarily removed from

full time National Guard duty only LAW [in accordance

with] procedures prescribed herein and only after the

state Adjutant General determines that all applicable laws

and regulations have been complied with.” (Emphasis sup-

plied)

32 Code of Federal Regulations § 564.52(b) provides

in pertinent part: “ ...in accordance with general princi-

ples of law, the National Guard and the Air National

Guard when not in federal service are not agencies of the

United States and the United States is not liable for injury

or damages arising from their activities

g g

32 U.S.C. § 101(12) provides in pertinent part:

Active duty’ means full-time duty in the active military

service of the United States. ... It does not include full-

time National Guard duty.”

App. 67

32 U.S.C. § 101(19) provides: “ ‘Full-time National

Guard duty means training or other duty, other than

inactive duty, performed by a member of the Army

National Guard of the United States or the Air National

Guard of the United States in the member’s status as a

member of the National Guard of a State or territory, the

Commonwealth of Puerto Rico, or the District of Colum-

bia under section 316, 502, 503, 504, or 505 of this title for

which the member is entitled to pay from the United

States or for which the member has waived pay from the

United States.”

32 Code of Federal Regulations § 564.52(b) provides in

pertinent part: “ ... in accordance with general principles

of law, the National Guard and the Air National Guard

when not in federal service are not agencies of the United

States, and the United States is not liable for injury or

damage arising from their activities. Thus, claims for

such injury or damages are not cognizable under the

Federal Tort Claims Act, as revised and codified (62 Stat.

982, 28 U.S.C. 3671-80). By the statutory provisions

referred to in paragraph (a) of this section, the United

States assumes an obligation to settle administratively

limited classes of claims relating to activities of the

National Guard and the Air National Guard.”

ANGR 110-6 provides in pertinent part: 6a. “Full-

time AGR Judge Advocate officers will be in full-time

AGR status under 32 U.S.C. 502(f).” . . . 8b. “The Office of

Chief Counsel, National Guard Bureau, will be advised

promptly by the State Adjutant General of any activities

or proceedings (military or civilian) that involve an

alleged violation of professional standards of conduct by

a full-time AGR Judge Advocate in the State that should

App. 68

be referred through channels to the Army Professional

Responsibility Committee or the Air Force TJAG’s Ethics

Panel.”

ANGR 35-03 para. 3-3b reads: “When called or

ordered to federal active duty with their ANG unit, full

time military duty personnel must be terminated from 32

USC 502(f) status. Appropriate Title 10 USC orders will

be published.”

ANGR 35-03 paragraph 8-10(d) Provides in pertinent

part: “Personnel who are within two years of qualifying

for retirement under the provisions of 10 U.S.C. 8911 or

8914, and who have not passed, or will not pass their

mandatory separation date before completing 20 years of

active duty, will not be involuntarily separated from full

time military duty without the approval of the Secretary

of the Air Force.”

Alaska Statutes (A.S.) 26.06.030 provides in pertinent

part: “ ... (a) The Alaska National Guard consists of . . .

commissioned officers and warrant officers who are citi-

zens of the United States, having the qualifications pre-

scribed by federal law and regulations, and who are

appointed and commissioned by the governor.” .

Alaska Statutes 26.05.060 provides in pertinent part:

“The governor as ex officio commander of the militia of

the state has command of the Alaska National Guard and

the Alaska Naval Militia while they are not in active

federal service. The governor may adopt necessary regu-

lations for them not inconsistent with 48 U.S.C. 473-479.

Except as otherwise prescribed by those sections, the

Alaska National Guard and the Alaska Naval Militia and

A pp. 6Y

their members are subject to all federal laws and regula-

tions relating to the National Guard and Naval Militia of

the several states and territories and of the United States

Alaska Statutes 26.05.200 provides in pertinent part:

“A person may not be commissioned or warranted in an

office of the National Guard or the Naval Militia of the

State unless the person is examined and adjudged quali-

fied for the office by an examining board appointed by

the commander in chief, except that at the discretion of the

adjutant general the proceedings of federal examining boards

may be accepted instead of a state board. The composition,

appointment and the procedure of examining boards and

the nature and scope of examinations shall be prescribed

by the military laws or regulations of the United States or

this state.” (Emphasis supplied)

Alaska Statutes 26.05.300 provides in pertinent part:

“An offense committed by a member of the militia, orga-

nized or unorganiz

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