Opinion
Nos. 84-2477, 84-2525.
Submitted May 17, 1985.
Decided June 28, 1985.
Clyde A. Christian, Omaha, Neb., for appellant.
Bernard L. Packett, Asst. Atty. Gen., and Paul W. Madgett, Omaha, Neb., for appellees.
Appeal from the United States District Court for the District of Nebraska.
Before HEANEY, Circuit Judge, HENLEY, Senior Circuit Judge, and McMILLIAN, Circuit Judge.
Wallace Gant, Jr. appeals from a judgment of the district court dismissing his claims that he was denied re-enlistment in the Nebraska Army-Air National Guard (NEANG) because of his race and in violation of due process. 596 F. Supp. 757 (1984). After carefully reviewing the issues raised by Gant on appeal, we find that:
The Honorable Robert Van Pelt, Senior District Judge, United States District Court for the District of Nebraska.
(1) The district court had jurisdiction to address Gant's disparate treatment claim under 42 U.S.C. § 1981. Taylor v. Jones, 653 F.2d 1193 (8th Cir. 1981). Accordingly, we need not decide whether there was jurisdiction for the disparate treatment claim under 42 U.S.C. § 1982, 1983, 2000d or 2000e. See Chappell v. Wallace, 462 U.S. 296, 305 n. 3, 103 S.Ct. 2362, 2368 n. 3, 76 L.Ed.2d 586, 594 n. 3 (1983).
Gant's brief on appeal suggests that he also raised a disparate impact claim. However, we agree with the district court that Gant's complaint does not present a disparate impact claim. Rather, Gant tried to prove his disparate treatment claim by showing the presence of a racially discriminatory atmosphere at NEANG.
(2) The district court did not clearly err in finding that race was not a factor in NEANG's decision to revise Air National Guard Regulation (ANGR) 39-06, as amended by TAG-NE Supplement 1, and to "non-retain" Gant under this revised regulation.
(3) Assuming without deciding that we have jurisdiction to review Gant's due process claim, cf. Chappell, 462 U.S. 296, 103 S.Ct. 2362, 76 L.Ed.2d 586, the court did not err in finding that Gant was accorded all the process that was due in his non-retention "without cause" and with retirement benefits under ANGR 39-06, as amended by TAG-NE Supplement 1, see e.g., Navas v. Gonzalez Vales, 752 F.2d 765, 768 (1st Cir. 1985).
(4) The district court did not abuse its discretion in refusing to order appellee's counsel to recuse himself.
Affirmed. See 8th Cir. Rule 14.