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dismissing under Rule 12 a complaint challenging plaintiff's dismissal from the Kentucky Air Force National Guard: "The Court . . . declines . . . to enter into an area the Supreme Court has deemed outside the province of the federal judiciary; namely, internal military disciplinary actions."
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CIVIL ACTION NO. 3:01CV-419-H.
December 21, 2001
MEMORANDUM OPINION
Plaintiff, Paul K. Stone ("Stone"), has sued Defendants, officers in the Air National Guard of the Commonwealth of Kentucky (the "KYANG"), disputing his dismissal from the KYANG. More specifically, Plaintiff seeks monetary and declaratory relief, alleging that he was wrongfully terminated in the following three ways: a) by a review board operating without proper legal authority (Counts I and II); b) by Defendants' abuse of the review board procedure (Count III); and c) in violation of 42 U.S.C. § 1983 (Count IV). Defendants have moved to dismiss all of Plaintiff's claims pursuant to Fed.R.Civ.P. 12(c).
Major General John R. Groves is the Adjutant General of the Kentucky National Guard, Brigadier General Richard Ash is the Assistant Adjutant General of the Kentucky Air National Guard, and Colonel Howard P. Hunt is a Logistics Management Officer of the Kentucky Air National Guard.
I.
In deciding a Rule 12(c) motion for judgment on the pleadings, the Court must accept all of Plaintiff's factual allegations as true. See Ziegler v. IBP Hog Market, Inc., 249 F.3d 509, 512 (6th Cir. 2001). Plaintiff began his service in the Kentucky Air National Guard in 1972. The following year he became an "excepted" civil service technician with the KYANG, subject to the provisions of 32 U.S.C. § 709. Subsection (b)(2) of this statute mandates that a person employed as an excepted civil service technician must also "[b]e a member of the National Guard." In other words, Plaintiff held dual civilian and military positions within the KYANG, and under federal law his continued service in the former was directly contingent upon his simultaneous service in the latter.
In his civilian occupation, in September 1999, Plaintiff was a Logistics Management Officer at the GS-14 level. On October 18, 1999, Plaintiff was demoted to level GS-12, but allowed to retain the same title and pay rate. He alleges this action was unwarranted, as his record as a technician was exemplary, and that Defendants were motivated by personal and political reasons unrelated to Plaintiff's job performance.
By order of the Director of the Air National Guard, the military status of all KYANG members with over twenty years of service is reviewed annually by Selective Retention Review Boards. On March 5, 2000, Plaintiff was told by Colonel Hunt — his immediate superior officer in both his civilian and military capacities — that he was recommending to the next meeting of the Review Board that Plaintiff be "non-retained"; i.e., terminated from his military position. Hunt did not provide any explanation for his decision. Plaintiff received notice on July 14, 2000, that the Review Board had met and also recommended that Plaintiff not be retained as a member of the KYANG, a decision with which Major General Groves agreed. Plaintiff contested the ruling to Grove, the Adjutant General of the Kentucky National Guard, who denied his appeal.
Plaintiff's military service with the KYANG was thereafter terminated, effective December 31, 2000. His dismissal from the KYANG consequently required his dismissal from his employment as an excepted civil service technician, effective January 2, 2001. Plaintiff ascribes Defendants' actions to their desire to create a technician vacancy that could be filled by a political ally. Defendants allegedly recognized, however, that Plaintiff's twenty eight year employment record entitled him to protection from arbitrary termination. Plaintiff asserts that Defendants therefore opted to not retain him in the KYANG, an act tantamount to firing him from his civilian employment. Accordingly, Plaintiff filed suit in federal district court.
II.
For the purposes of this motion, the Court must "construe the complaint in the light most favorable to the plaintiff . . . and determine whether the plaintiff undoubtedly can prove no set of facts in support of the claims that would entitle [him] to relief." Mixon v. State of Ohio, 193 F.3d 389, 400 (6th Cir. 1999). According to Plaintiff, his claims rest on two theories. First, "[t]here is no statutory authority enacted by the Congress which authorizes the establishment and use of the Selective Retention Review Boards as the means of terminating the military status of traditional guardsmen such as Stone." Pl.'s Resp. to Defs.' Mot. to Dismiss at 7 ("Pl.'s Resp."). Second, "[e]ven if there is adequate legal authority for the process associated with Selective Retention Review Boards, the defendants in this case cannot use a Selective Retention Review Board as a fig leaf behind which to hide or justify denial of established rights of civil service employees." Id. The Court will address both arguments in turn.
A.
Selective Retention Review Boards are authorized by Air National Guard Instruction 36- 2606 ("ANGI 36-2606"), a written order issued on February 28, 1997, by Donald W. Shepperd, Major General, USAF and Director of the Air National Guard. See Defs.' Ex. 4. ANGI 36-2606 states "[t]his instruction implements AFPD 36-26 and describes the responsibilities and provides authority, guidance, and procedures for establishing and conducting the Selective Retention Program (SRP) for Air National Guard officers and enlisted members who are retirement eligible (Reserve and Active Duty) as defined by this instruction." Id. Air Force Policy Directive 36-26 ("AFPD 36-26"), a written order issued on December 20, 1993, by Billy J. Boles, Lt. General, USAF and DCS/Personal, sets forth guidelines for "military force management." Defs.' Ex. 6. For example, AFPD 36-26 provides:
1. The Air Force needs to recruit, develop, and sustain enough people to meet both current and future mission requirements. To this end, the Air Force will develop and maintain a force which balances skill, experience, and specialty; ensures efficient use of personnel; provides career opportunities; and is self-sustaining. The following force management policies are designed to accomplish these objectives.
* * * * *
3. To develop, manage, and sustain an officer and enlisted force the Air Force must provide members an opportunity to serve, maintain promotion timing and opportunity, and balance experience and seniority while controlling the overall costs of manpower.Id. Furthermore, ¶ 11 of AFPD 36-26 states: "[t]his directive establishes the following responsibilities and authorities: . . . 11.5 The Chief, National Guard (NGB/CC) coordinates policy, provides oversight, and develops force management programs for Air National Guard members." Id. (emphasis added).
Plaintiff argues that these regulations make no reference to a specific grant of authority by Congress to establish the Selective Retention Review Boards. Plaintiff supports this argument by noting that ANGI 36-2606 does mention multiple provisions of the United States Code, but that none authorize the use of Selective Retention Review Board's to terminate the military service of National Guardsmen. Defendants, in response, direct the Court's attention to 10 U.S.C. § 8013(g). This provision, although not cited by ANGI 36-2606 or AFPD 36-26, states:
The Secretary of the Air Force may —
(1) assign, detail, and prescribe the duties of members of the Air Force and civilian personnel of the Department of the Air Force;
(2) change the title of any officer or activity of the Department of the Air Force not prescribed by law; and
(3) prescribe regulations to carry out his functions, powers, and duties under this title.Id. Moreover, Congress has also made clear that "[t]he Air National Guard of the United States is the reserve component of the Air Force . . . ." 10 U.S.C. § 10110. Read together, these two statutes demonstrate that Congress has clearly delegated to the Secretary of the Air Force the responsibility to establish the procedures for hiring and firing members of the Air National Guard.
The fact that neither ANGI 36-2606 nor AFPD 36-26 cite 10 U.S.C. § 8013 does not undermine their validity. A regulation's failure to reference each and every one of its generative statutes does not deprive it of the force of law. Plaintiff essentially argues that because Congress never explicitly directed the Secretary of the Air Force to install "Selective Retention Review Boards," their creation pursuant to ANGI 36-2606 is unlawful. See, e.g., Pl.'s Resp. at 11. The Court does not believe, however, the Secretary requires such specific authorization for his actions. It would be manifestly unreasonably to require the legislative and rulemaking process to operate with such specificity, and Plaintiff cites no case law to the contrary.
Finally, Plaintiff also notes that the National Guard Technicians Act, 32 U.S.C. § 709(f)(2), establishes that an excepted civil service technician cannot be removed except "for cause," and that because he was an exemplary employee he could not be terminated. Plaintiff's reasoning misstates the causal connection of the decision of the Selective Retention Review Board and his termination as a civilian technician. The Board effected only his dismissal from the KYANG. At that point, Plaintiff's dismissal as a technician was required by § 709(b)(2). In other words, the Board overrode none of the statutory protections afforded to technicians. And, even had the Board done so, the National Guard Technicians "Act permits, but does not require, retention of technicians, and does not limit the authority of state National Guards to make retirement decisions." Christoffersen v. Washington State Air Nat'l Guard, 855 F.2d 1437, 1445 (9th Cir. 1988).
B.
Plaintiff implicitly recognizes that military personnel decisions undertaken pursuant to a statutory directive of Congress are nonjusticiable in civilian courts. Nevertheless, Plaintiff maintains that even if the Selective Retention Review Board that recommended his dismissal was properly authorized, Defendants cannot "hijack" the process in pursuit of their own political ends. In so arguing, Plaintiff misperceives the effect of an issue being nonjusticiable. This does not mean that a court's review is limited to, e.g., a search for pretextual motive; rather, "a holding of nonjusticiability is absolute in its foreclosure of judicial scrutiny." Ronald D. Rotunda John E. Nowak, 1 Treatise on Constitutional Law § 2.16(a) at 312 (3d ed. 1999).
A long line of Supreme Court and Sixth Circuit precedent articulates the doctrine that claims for termination from a military position are nonjusticiable in federal district court. The touchstone of these decisions is Feres v. United States, 340 U.S. 135, 146 (1950), where the Supreme Court held "that the Government is not liable under the Federal Tort Claims Act for injuries to servicemen where the injuries arise out of or are in the course of activity incident to service." Over thirty years later the Court broadened Feres in holding that "enlisted military personnel may not maintain a suit to recover damages from a superior officer for alleged constitutional violations." Chappell v. Wallace, 462 U.S. 296, 305 (1983). The Chappell Court found that "[t]he special nature of military life-the need for unhesitating and decisive action by military officers and equally disciplined responses by enlisted personnel-would be undermined by a judicially created remedy exposing officers to personal liability at the hand of those they are charged to command." Id. at 304. Soon after, the Court "reaffirm[ed] the reasoning of Chappell" and broadened the scope of Feres in "hold[ing] that no Bivens remedy is available for injuries that `arise out of or are in the course of activity incident to service.'" United States v. Stanley, 483 U.S. 669, 683-84 (1987) (quoting Feres, 340 U.S. at 146)).
Interpreting the Court's decisions in Feres, Chappell and Stanley, the Sixth Circuit has summarized:
[r]eview of these Supreme Court precedents makes it clear that in recent years the Court has embarked on a course dedicated to broadening the Feres doctrine to encompass, at a minimum, all injuries suffered by military personnel that are even remotely related to the individual's status as a member of the military . . . .Major v. United States, 835 F.2d 641, 644 (6th Cir. 1987) (emphases in original). Moreover, the Sixth Circuit has specifically considered the application of the Feres doctrine to the dismissal of National Guard excepted civil service technicians, repeatedly finding these claims to be nonjusticiable.
"[E]very court having occasion to consider the capacity of National Guard technicians has determined that capacity to be irreducibly military in nature." Leistiko v. Stone, 134 F.3d 817, 821 (6th Cir. 1998) (quoting Leistiko v. Sec'y of the Army, 922 F. Supp. 66, 73 (N.D.Ohio. 1996)). Because "[t]he National Guard is `irreducibly military,'" an "executive decision by an adjutant general to relieve a Guard officer of command is simply an adverse personnel action." Fisher v. Peters, 249 F.3d 433, 439 (6th Cir. 2001) (quoting Bradley v. Stump, 149 F.3d 1182, 1998 WL 385903 at *3 (6th Cir. 1998) (unpublished)). Therefore, "[g]uard technicians' challenges to discharge by the Guard and termination from technician employment are nonjusticiable because judicial review would seriously impede the military in performance of its vital duties." Id. (quoting Bradley v. Stump, 971 F. Supp. 1149, 1156 (W.D.Mich. 1997)). Accordingly, Guard technicians who present nonjusticiable claims "must pursue military channels for relief." Id. at 443.
In sum, as both an excepted civil service technician and traditional member of the KYANG, Plaintiff's capacity was irreducibly military in nature. Defendant Groves' decision to accept the recommendation of the Selective Retention Review Board that Plaintiff be non- retained was an adverse personnel action. At this point, the Court must conclude that Plaintiff's claim is nonjusticiable, and any further inquiry into the circumstances of his dismissal is prohibited. The Court therefore declines Plaintiff's request to enter into an area the Supreme Court has deemed outside the province of the federal judiciary; namely, internal military disciplinary actions. Any relief Plaintiff seeks must be obtained through appropriate military channels.
See, e.g., KRS § 35.390 ("Any member of the National Guard or active militia who believes himself wronged by his commanding officer, and, upon application to such commander, is refused redress, may complain to any superior officer who shall forward the complaint to the Governor through the adjutant general; the Governor, after investigation, shall take such measures as he deems proper.")
The Court will enter an order consistent with this Memorandum Opinion.
ORDER
Defendants have moved for a judgment on the pleadings. The Court has reviewed the memoranda of the parties as well as the exhibits of record. Being otherwise sufficiently advised,
IT IS HEREBY ORDERED that Defendant's motion to dismiss is SUSTAINED and Plaintiff's Complaint is dismissed with prejudice.
This is a final and appealable order.