45 Fair empl.prac.cas. 553, 45 Empl. Prac. Dec. P 37,609 Samuel W. Costner v. Oklahoma Army National Guard Robert M. Morgan, Individually and in His Official Capacity, and Robert E. Clark, Individually and in His Official Capacity William E. Gibson, Individually and in His Official Capacity Charles E. Frazier, Individually and in His Official Capacity45 Fair empl.prac.cas. 553, 45 Empl. Prac. Dec. P 37,609 Samuel W. Costner v. Oklahoma Army National Guard Robert M. Morgan, Individually and in His Official Capacity, and Robert E. Clark, Individually and in His Official Capacity William E. Gibson, Individually and in His Official Capacity Charles E. Frazier, Individually and in His Official Capacity
After examining the briefs and the appellate record, this three-judge panel has determined unanimously that orаl argument would not be of material assistance in the determination of this appeal. See
Plaintiff Samuel Costner seeks to appeal the dismissal of his complaint against the Oklahoma National Guard and Robert M. Morgan under the Age Discrimination in Employment Act,
We must first address whether this court has jurisdiction to hear plaintiff‘s appeal. Plaintiff filed his notice of appeal after more than thirty days had elapsed from the date of the district court‘s final judgment. Under
Plaintiff originally named sеveral other persons, including Lieutenant Colonel William E. Gibson, an officer in the United States Army, as defendants. Defendant Gibson would be an “officer of the United States” for purposes of the time for appeal under
In district court, plaintiff allegеd that at the time defendants discriminated against him, plaintiff was a member of the Oklahoma Army National Guard and a civilian technician. Plaintiff сhallenged the official personnel decisions of defendant Morgan, the adjutant general of the Oklahoma National Guard. In NeSmith v. Fulton, 615 F.2d 196, 199 (5th Cir.1980), the Fifth Circuit addressed the issue of whether the adjutant general is a federal officer for determining the time for filing a notice of appeal. The court reasoned that the National Guard Technicians Act,
The district court dismissed plaintiff‘s complaint because it held that his claims were “not appropriate for judicial review under the test applied in Lindenau v. Alexander, 663 F.2d 68 (10th Cir.1981), since the strength of plaintiff‘s claims and the рotential injury to plaintiff are relatively slight when compared to the degree of interference in the military function that would result from sustaining plaintiff‘s challenge.” In Lindenau, this court applied the analysis used in Mindes v. Seaman, 453 F.2d 197 (5th Cir.1971) for determining the scope of review federal courts should have in military personnel matters. In Mindes, the court developed a two-part test for deciding whether to review an internal military determination:
“[A] court [should] first ... determine whether the case involves an alleged violation of a constitutional right, applicable statute, or regulation, and whether intra-service remedies have been exhausted. If so, the court is then to weigh the nature and strength of the challenge to the military determination, the potential injury to the plaintiff if review is refused, the type and degree of anticipated interferenсe with the military function, and the extent to which military discretion or expertise is involved in the challenged decision.”
Lindenau, 663 F.2d at 71 (citing NeSmith v. Fulton, 615 F.2d at 201).
Plaintiff first argues that Lindenau does not apply to his case because he is complaining about his discharge as a civilian employee. In this context, he сharacterizes himself as a federal civil servant working for the State of Oklahoma rather than as a military officer. Plaintiff is partly cоrrect. Although he is a civilian employee, he also wears the hat of a member of the military since all civilian employees оf the National Guard must also be members of the Guard. See Thornton v. Coffey, 618 F.2d 686 (10th Cir.1980). Plaintiff‘s discharge as a Guard officer must thus be analyzed in terms of whether the court shоuld review the military personnel decision, regardless of the decision‘s effect on his civilian employment with the Guard. Id.
The district court dismissed plaintiff‘s complaint under the second part of the Mindes test, which essentially balances the interests of the parties, with a preferеnce against interference in the military. See Lindenau, 663 F.2d at 74. In Helm v. State of California, 722 F.2d 507, 510 (9th Cir.1983), the Ninth Circuit applied the factors in Mindes and held that a clаim similar to plaintiff‘s was nonreviewable.
On balance, these factors favor finding Helm‘s claims nonreviewable. Age discrimination is examined for a rational basis, which the military could easily establish. See Massachusetts Board of Retirement v. Murgia, 427 U.S. 307, 96 S.Ct. 2562, 49 L.Ed.2d 520 (1976). The potential injury to Helm is only eсonomic.... “Scrutiniz[ing] numerous personnel decisions by many individuals as they relate to appellant‘s claim that he was improperly denied promotion” would significantly interfere with military functions. Gonzalez v. Dept. of Army, 718 F.2d 926, 930 (9th Cir.1983). Finally, an inquiry into promotion decisions “would involve the court in a very sensitive area of military expertise and discretion.” Id.
Helm, 722 F.2d at 510. We agree with this reasoning. See also Turner v. Egan, 358 F.Supp. 560 (D.Alaska 1973).
The judgment of the United States District Court for the Western District of Oklahoma is AFFIRMED.