# Petition for Writ of Certiorari — Bowen v. Oistead > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386006_1436%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition for Writ of Certiorari - **Published:** January 1, 1998 - **Citation:** 524 U.S. 938 ## Text | 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? il 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 — vi 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 ax 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. S 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. © If examined, the record would show that Bowen oversaw 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 10 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). 11 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 12 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 13 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. I. 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. 14 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 15 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 16 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 - 17 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. 18 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 19 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 20 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 21 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. 22 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. 23 V. 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 24 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 ee 25 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. 26 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, v. 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- cedures.© The State further argues that even where 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, 122 [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386006_1436%3A1. Public record. Not legal advice.