This suit was filed by plaintiff Karr against various State and Delaware Army National Guard (“DEARNG”) officers (the “State defendants”) asserting, among other things, violation of Karr’s constitutional rights in connection with his involuntary separation from the Active Guard/Reserve (“AGR”) program. On August 31, 1990, the court issued an opinion (“August 31 Opinion”) resolving the parties’ cross-motions for summary judgment.
United States ex rel. Karr v. Castle,
Although not provided explicitly by the Federal Rules of Civil Procedure, the motion for reconsideration is not uncommon in federal practice.
Above the Belt, Inc. v. Mel Bohannan Roofing, Inc.,
In this instance, a misunderstanding clearly occurred as to whether plaintiff opposed the United States’ motion to intervene. Although Local Rule 3.1 allowed plaintiff ten days to respond to the motion to intervene, the court granted the motion within that time period in reliance upon the *1091 Local Rule 3.1.D. certificate. While the parties disagree as to the substance of their communications concerning the motion to intervene, the fact remains that, regardless of fault, the court granted the motion on the assumption that it was unopposed and without benefit of plaintiffs position on the matter. This sort of misunderstanding is the type of situation in which the court should reconsider its prior order. Having agreed to reconsider the United States’ motion to intervene, the court will deny the motion to intervene as of right pursuant to Fed.R.Civ.P. 24(a)(2) and grant permissive intervention under Rule 24(b).
Federal Rule of Civil Procedure 24(a)(2) permits intervention of right so long as (i) there is a timely application; (ii) the putative intervenor claims an interest relating to the transaction at issue; (iii) the putative intervenor is so situated that disposition of the action may as a practical matter impair or impede his ability to protect that interest; and (iv) the putative intervenor's interest is not adequately represented by the parties.
Deutschman v. Beneficial Corp.,
The United States contends its motion to intervene is timely because it was unaware prior to the entry of the December 14 Order that the constitutionality of NGR 600-5, ¶ 6-5d was at issue. The United States asserts correctly that the complaint does not raise the facial invalidity of the DEARNG separation procedures or NGR 600-5; this does not mean, however, that the United States was unaware that the constitutionality of portions of NGR 600-5 was at issue prior to December 14, 1990. The August 31 Opinion specifically found the regulation constitutionally infirm. The court’s files indicate that a copy of the August 31 Opinion was sent to the Assistant United States Attorney. Consequently, there was nearly four months’ delay between the time the United States was put on notice that the facial validity of NGR 600-5, 11 6-5d was at issue and the motion to intervene. This delay, however, was not prejudicial. The United States could not move for the court to reconsider the August 31 Opinion until the order implementing the opinion issued. This did not occur until December 14. The United States’ motions to intervene and for reconsideration were filed shortly thereafter. Consequently, the court finds the motion to intervene was timely.
The interest asserted by the United States in the litigation at bar is its interest in defending the constitutionality of NGR 600-5, a regulation promulgated by the National Guard Bureau, a joint bureau of the United States Departments of the Army and the Air Force. The United States asserts this interest will as a practical matter be impaired by prosecution of this lawsuit because of the potential
stare decisis
effect of the August 31 Opinion on future challenges to the same regulation. Plaintiff contends the asserted interest of the United States is illusory. Plaintiff correctly asserts that the court held in the August 31 Opinion that his separation was governed by regulations promulgated by DEARNG and thus governed by state law.
See
The United States’ motion to intervene fails to satisfy the fourth requirement of Rule 24(a)(2), that is, the requirement that the putative intervenor’s interest is not adequately represented by the existing parties. Plaintiff asserts that the interest of the United States is adequately represented by counsel for the State defendants. With respect to this factor, the United States asserts:
Counsel for the State obviously could not have protected the United States’ interest in defending the constitutionality of NGR 600-5 when the constitutionality of those regulations was not yet at issue in this litigation. Furthermore, counsel for the State represents the Delaware National Guard and its members who have been sued. He can neither ethically nor legally purport to represent the potentially divergent interests of the United States.
Reply Memorandum in Support of United States’ Motion to Intervene and In Opposition to Plaintiff’s Motion for Reconsideration at 304 (Dkt. 80). The United States’ first argument is unavailing because it mis-characterizes the prior proceeding. The court did not in the August 31 Opinion sua sponte and out of thin air declare NGR 600-5 facially invalid. Although the facial invalidity of NGR 600-5 was not asserted in the complaint, the issue was briefed and argued by the parties in the cross-motions for summary judgment. See Plaintiff’s Answering Brief in Opposition to Defendants’ Motion for Summary Judgment at 31 (Dkt. 46); Plaintiff’s Reply Brief in Support of his Motion for Partial Summary Judgment at 12-13 (Dkt. 54). As to the United States’ second argument, the court fails to see how the interests of the State defendants and the United States could diverge on the facial validity of NGR 600-5. The State defendants have the same interest in defending the DEARNG regulation based upon NGR 600-5 that the United States has in defending NGR 600-5 itself. The United States’ bare allegation of potentially diverging interests, without more, is unpersuasive. As a consequence, the court finds the United States has not satisfied the requirements for intervention as of right.
Federal Rule of Civil Procedure 24(b)(2) permits intervention upon timely application “when an applicant’s claim or defense and the main action have a question of law or fact in common.” As previously stated, the United States’ motion to intervene is timely. In addition, the court has noted above that the United States has asserted an interest related to the main action. Moreover, Rule 24(b) also provides: “When a party to an action relies for ground of claim or defense upon any statute or executive order administered by a federal or state governmental officer or agency or upon any regulation, order, requirement or agreement issued or made pursuant to the statute or executive order, the officer or agency upon timely application may be permitted to intervene in the action.” The thrust of this portion of Rule 24(b) is in the direction of liberally allowing government agencies to intervene. 7C C. Wright & A. Miller, Federal Practice and Procedure § 1912 at 372-74.
The court finds that the validity of a federal regulation is sufficiently at issue in this case to give the United States an interest in common with the litigation. Therefore, the court will exercise its discretion to permit the United States to intervene in this litigation pursuant to Fed.R.Civ.P. *1093 24(b). In so holding, the court finds that intervention by the United States will not unduly delay or prejudice the adjudication of the rights of the original parties. The court now turns its attention to the motions to reconsider the December 14 Order and August 31 Opinion submitted by the State defendants and the United States.
The United States’ motion seeks reconsideration of two of the holdings of the August 31 Opinion as implemented by the December 14 Order: (1) that Karr asserted a liberty interest sufficient to trigger procedural due process protections; and (2) that the procedures followed by the State defendants in separating Karr from AGR status (based upon the guidelines set out by NGR 600-5, ¶ 6-5d) failed to provide Karr with sufficient procedural due process. The motion of the State defendants seeks reconsideration of the same issues and in addition seeks reconsideration of the court’s holdings that Karr adequately alleged a prima facie case against defendant Castle as commander-in-chief of DEARNG and that reinstatement is the appropriate relief in the event the court finds that Karr’s rights were violated.
Reconsideration should not be granted where it would merely accomplish repetition of arguments that were or should have been presented to the court previously.
Brambles U.S.A., Inc.,
As noted above, the procedural mechanism afforded by the motion for reconsideration seeks to balance the need for finality in judicial decisionmaking with a recognition that courts sometimes make mistakes.
Brambles U.S.A., Inc.,
Following the standards set out above, the court will deny the State defendants’ motion for reconsideration insofar as it seeks reconsideration of the holding that the appropriate relief should be reinstatement. This issue was briefed and argued in the prior cross-motions for summary judgment and in the letter briefing prior to issuance of the December 14 Order. While the State defendants’ brief in support of their motion for reconsideration might well be superior to their briefing of the issue on the original cross-motions, that alone does not justify reconsideration.
Above the Belt, Inc.,
The State defendants’ motion for reconsideration of the holding that plaintiff has stated a claim against defendant Castle as commander-in-chief of DEARNG will likewise be denied. In their briefing, the State defendants cite the same cases in support of the same arguments already considered
*1094
and rejected by the court in the August 31 Opinion.
Compare
Turning to the remainder of the motions for reconsideration, the court notes again that the unconstitutionality of NGR 600-5, ¶ 6-5d and the DEARNG regulations based thereon was not asserted in the complaint and was raised for the first time by plaintiff at the summary judgment stage. The prior cross-motions for summary judgment in this case involved numerous complex issues, with neither party focusing upon the facial validity of the separation. While the issue was addressed and argued, it was obscured by the many other issues in the case. Although the court’s August 31 Opinion and December 14 Order did not decide an issue outside the adversarial issues presented for decision, a review of the prior briefing reveals that the court decided the issue without benefit of counsel’s focused energies in the briefing stage and at oral argument. As a consequence, the court is persuaded that it may have overlooked facts or precedent which, if considered, might have changed the outcome of the August 31 Opinion and December 14 Order regarding the constitutionality of NGR 600-5 and the DEARNG separation regulations.
Ordinarily, the court would not grant reconsideration merely because an issue properly before it was lost in the shuffle by counsel. The court recognizes, however, the consequences of its prior ruling with respect to NGR 600-5 and the potential widespread effect of that ruling upon the National Guard of the several states and the AGR program. The court also recognizes that its prior decision was rendered without benefit of the views of the United States. Under the circumstances of this case, the court finds that the importance of achieving substantial justice outweighs the value of finality. As a consequence, the court will exercise its discretion and grant the motions for reconsideration of its holding that NGR 600-5, ¶ 6-5d and the DEARNG regulation based thereon are facially invalid. The court now turns to the substantive issues raised by the motions for reconsideration with benefit of focused briefing by the United States, the State defendants, and plaintiff Karr.
The court begins with a review of its holding in the August 31 Opinion. This action stems from the involuntary separation of Jon T. Karr, formerly a Captain in DEARNG, from a three-year tour in the Active Guard/Reserve as Recruiting and Induction Officer. On the recommendations of two of his superior officers, Lieu *1095 tenant Colonel Norman Y. Cochran and Brigadier General Oscar E. Trivits, Karr was involuntarily separated from his three-year AGR tour. Both Cochran and Trivits characterized in writing certain actions taken by Karr as constituting dereliction of duty and substandard performance. 2 Essentially, Karr complains that the actions taken by him which formed the factual bases for his involuntary separation from the AGR tour did not constitute dereliction of duty or substandard performance which would warrant involuntary separation. Rather, he argues that his DEARNG superiors falsely mischaracterized his actions because he had incurred their displeasure. Karr asserts that the separation has prevented him from procuring other employment commensurate with his education and prior experience.
In his complaint and on his motion for summary judgment, Karr alleged a number of constitutional and statutory violations which were discussed in the August 31 Opinion and are not relevant to the motions at bar. The motions for reconsideration presently before the court focus upon Karr’s allegation that the separation procedures followed by the State defendants denied him procedural due process under the provisions of the Fourteenth Amendment and 42 U.S.C.A. §§ 1983, 1985, and 1986. Specifically, Karr asserted that the DEARNG separation procedures, which are adopted from and virtually indistinguishable from the guidelines promulgated by the Chief of the National Guard Bureau at NGR 600-5, 3 were facially invalid because they failed to provide him with a pretermin-ation hearing and adequate opportunity for appeal.
In the August 31 Opinion, the court found that Karr had asserted a liberty interest sufficient to trigger procedural due process protections in accordance with
Board of Regents v. Roth,
“The requirements of procedural due process apply only to the deprivation of interests encompassed by the Fourteenth Amendment’s protection of liberty and property.”
Board of Regents v. Roth,
408
*1096
U.S. 564, 569,
In determining whether a plaintiff has asserted a protected interest, the court must look to the nature of the interest and not merely to its importance to the individual.
Roth,
An important element for the assertion of a reputational injury by a former government employee is that the govern-merit’s asserted basis for the separation be factually disputed.
Codd v. Velger,
In addition to falsity the reasons asserted for the separation must be sufficiently stigmatizing to trigger procedural due process protections. The type and degree of stigma sufficient to implicate a liberty interest has been described variously by the courts. In the seminal case
Board of Regents v. Roth,
the United States Supreme Court indicated that a reputational liberty interest could be infringed by a government employer in two ways: (i) if the charge against the individual might seriously damage his standing and associations in his community by impugning his good name, reputation, honor, or integrity; or (ii) if the charge imposed such a stigma as to foreclose the individual’s freedom to take advantage of other employment opportunities.
Both the United States and the State defendants cite
Scarnati v. Washington,
In the context of Roth-type cases, a charge which infringes one’s liberty can be characterized as an accusation or label given the individual by his employer which belittles his worth and dignity as an individual and, as a consequence is likely to have severe repercussions outside of professional life....
Id.
at 1556. The defendants fail to note, however, that the court in
Scarnati
quoted this statement from a Ninth Circuit Court of Appeals case,
Stretten v. Wadsworth Veterans Hospital,
But a label which would prevent an individual from practicing his chosen profession at all may have consequences so severe that liberty would be infringed.
Scarnati,
The bulk of the case law indicates that a government employer infringes an individual’s liberty interest when the employer so stigmatizes the individual as to impair that individual’s ability to obtain alternative employment. Karr asserts that his separation for dereliction of duty and substandard performance is sufficiently derogatory to implicate a liberty interest.
As a matter of law, the mere fact that Karr was involuntarily separated and the inferences which arise therefrom are insufficient to implicate a liberty interest.
Martin v. Unified School Dist. No. 434, Osage County, Kansas,
Involuntary separation based upon dereliction of duty may be sufficiently derogatory to substantially impair Karr’s ability to obtain future employment and thus implicate a liberty interest. The mem-oranda prepared by both Cochran and Trivits recommended that Karr be involuntarily separated based in part upon dereliction of duty. Memorandum in Support of United States’ Motion for Reconsideration Exh. 7 at 1 (Dkt. 179); id. Exh. 9 at 2. The notice of involuntary separation received by Karr from Major General Lank indicated that Karr was being separated for the reasons outlined in the Cochran memorandum. Id. Exh. 11; see also NGR 600-5 ¶ 6-5(c)(2) (professional dereliction is grounds for involuntary separation). Dereliction of duty is a crime chargeable under the Uniform Code of Military Justice. 20 Del.C. § 151; 10 U.S.C.A. § 892(3). The charge that Karr was derelict in his duties may therefore be a badge of infamy sufficient to trigger a liberty interest and impair his ability to obtain alternative employment.
*1098
The allegedly false charge of dereliction of duty does not implicate Karr’s constitutionally protected liberty interest, however, unless it so stigmatizes him that he is foreclosed from obtaining alternative employment to a degree which goes beyond merely disadvantaging him in the job market.
Mazaleski,
In this case, Karr alleges two kinds of foreclosure from future employment. First, he alleges that his separation has foreclosed him from pursuing his chosen “profession” as a full-time active duty member of the National Guard or as a full-time active duty member of any of the armed services. Second, Karr contends that the stigma arising from his separation has precluded him from finding work commensurate with his pre-AGR education and experience as a professor of sociology and criminal justice.
The parties do not cite, nor has the court’s own research revealed, any cases which define the scope of “profession” for purposes of asserting a liberty interest under the Due Process Clause. In other contexts, whether an occupation is a “profession” depends upon such characteristics as the type or amount of necessary education, training or experience.
See generally
20 C.F.R. §§ 541.3
et seq.
(regulations defining whether an individual is employed in a “professional capacity” for purposes of the minimum wage and maximum hours exemption under the Fair Labor Standards Act); 77 A.L.R.Fed. 682 (same);
It is unclear from the briefing whether the injury Karr asserts is that the involuntary separation has prevented him from pursuing a “profession” as an officer in the AGR or that he is precluded from pursuing future service as an officer on active duty in the full-time regular Army. The court notes initially that it is the fact of involuntary separation and not the particularized charge of dereliction of duty which prevents Karr from engaging in future full-time active duty military service. As stated above, the mere fact of discharge is ordinarily insufficient to implicate a liberty interest. Moreover, if Karr merely intends to assert that the separation precludes him from further AGR service, this foreclosure is more akin to preventing Karr from occupying a particular position rather than from pursuing a particular profession.
If Karr’s complaint is that he is foreclosed from pursuing full-time active duty service in the regular Army, the court notes *1099 as a preliminary matter that there is no evidence in the summary judgment record that Karr has ever served in the regular Army. At the very least, therefore, there is a question of fact as to whether service in the regular Army is Karr’s chosen “career.” Further, unlike law or medicine, military service does not require particularized education, experience, or professional license. Karr is not in the same position as a lawyer, who, after obtaining particularized education and professional license is foreclosed from utilizing the same by disbarment. The fact that his involuntary separation prevents Karr from serving in the future as an active duty soldier does not in and of itself prevent him from pursuing other government employment or employment suited to his particularized educational background in sociology.
While an authoritative article discussing the AGR status speaks in terms of the “career Reservist,” England,
The Active Guard/Reserve Program: A New Military Personnel Status,
106 Mil.L.Rev. 1 (1984), and while it is not uncommon to speak of the “career” or “professional” soldier, there is no constitutionally protected interest in the ability to pursue a full-time active duty military career. As the court stated in the August 31 Opinion, Karr’s orders contemplated a three-year tour of duty “unless sooner released or extended by proper authority.”
On the other hand, Karr’s allegation that his involuntary separation for dereliction of duty has prevented him from obtaining civilian work commensurate with his education and experience as a former university professor of sociology and criminal law is sufficient to implicate a liberty interest. Karr’s unsupported allegation alone, however, does not entitle him to summary judgment. Karr must show that there is no issue of material fact that the involuntary separation severely limited his employment opportunities. Defendants’ motion for summary judgment must be granted if there is no evidence in the summary judgment record that the allegedly false charge of dereliction of duty has foreclosed Karr from a wide range of employment opportunities. This consideration implicates the final factor in determining if a reputational liberty interest has been asserted, that is, whether the allegedly false and derogatory basis for the discharge has been publicized to potential employers so as to stigmatize the discharged individual.
In the August 31 Opinion, the court opined that the derogatory basis for Karr’s discharge was sufficiently publicized because potential employers are aware of the meaning and significance of military separation codes.
Although Karr received Copy 3 instead of Copy 1, Copy 3 indicates only that Karr’s discharge was honorable and that the narrative reason for his separation was “Involuntary Separation — Substandard performance.” Appendix to Plaintiffs Opening and Answering Briefs on Cross-Motions for Summary Judgment at A-2 (Dkt. 47A). 6 As stated previously, separation for substandard performance does not sufficiently impugn Karr’s character so as to implicate a liberty interest.
Karr nowhere asserts that defendants disseminated the Cochran and Trivits mem-oranda or otherwise publicized that his involuntary separation was based in part upon dereliction of duty. Instead, Karr asserts that his continued status as an officer in the United States Army Reserve requires him to be truthful and forthright and this in turn requires him to inform potential employers that he was involuntarily separated due to dereliction of duty. The courts are divided on the issue of whether a liberty interest is implicated when the individual himself publicizes the circumstances of his separation.
Compare Derstein v. State of Kansas,
Karr states that “he actually was required to enclose his DD Form 214 with an employment application in only one instance; in all other cases he was simply required to state why he left his former employment.” Plaintiff’s Answering Brief in Opposition to Defendant’s Motion for Reconsideration at 13 (Dkt. 85). Plaintiff does not contest the factual basis for separation. That is, Karr agrees that he actually did the things the Cochran and Trivits memoranda accused him of doing. Instead, Karr disputes defendants’ characterization of his actions as dereliction of duty sufficient to warrant involuntary separation. 7 The reason for Karr’s separation as set forth in his discharge papers was substandard performance. The details underlying Karr’s performance are not disputed, and consequently, the fact that Karr may be forced to recount to a potential employer his differences with his superiors does not falsely impugn his character or portray him in an falsely negative light. The court fails to see how Karr’s obligation to be *1101 forthright could require him to disclose something other than the reason for separation stated on the DD Form 214, which is substandard performance. If in explaining the circumstances of his separation Karr chooses to inform a potential employer that his superiors also characterized his behavior as dereliction of duty, the potential employer’s knowledge of this characterization should not be imputed to the State defendants. In sum, even if the State defendants falsely characterized Karr’s actions as dereliction of duty, this characterization has not been publicized by them so as to implicate Karr’s reputational liberty interest.
Upon reconsideration, the court holds that plaintiff Karr has failed to assert a liberty interest sufficient to implicate the requirements of procedural due process. Because the court upon reconsideration finds that no liberty interest has been asserted, it will not reach the question of whether the process afforded Karr was adequate. The court will withdraw the relevant portions of the August 31 Opinion and the December 14 Order. Defendants’ motion for summary judgment on the procedural due process claim will be granted. Although the Memorandum Opinion issued December 14, 1990 concerns the mechanics and propriety of reinstatement, an issue the court declined to reconsider in this Opinion, it was issued in conjunction with the December 14 Order to facilitate plaintiff’s reinstatement after the court granted plaintiff’s motion for summary judgment on the procedural due process claims. In light of the court’s disposition of the procedural due process claim, the December 14, 1990 Memorandum Opinion is no longer operative; it may, however, prove relevant in the event the plaintiff prevails on his remaining claims. The court, therefore, will withdraw the December 14, 1990 Memorandum Opinion pending final resolution of all of plaintiff’s claims. An appropriate order will issue.
Notes
. The United States filed a motion for reconsideration simultaneously with its motion to intervene.
. The facts surrounding Karr’s involuntary separation are set forth fully in the August 31 Opinion at
. The relevant separation procedures set forth in NGR 600-5 are as follows:
6-5 Separation for cause and procedures
******
d. Procedures.
(1) A commander at any echelon may submit a recommendation to involuntarily separate an AGR member, who is assigned within that organization, from the AGR program through channels to the State Adjutant General for a final determination. The following procedures will be followed for separation under this paragraph.
(a) The unit commander will refer the recommendation to the AGR member concerned for rebuttal or comment prior to forwarding through command channels.
(b) Specific reasons for the release must be presented in writing to the AGR member. Comments offered by AGR member will be included with the initiating commander’s recommendations. The member may be given the opportunity to but will never be required to submit a written request for voluntary release from AGR program in lieu of involuntary separation.
(c) ARNG intermediate commanders will recommend approval/disapproval, indicating the reason(s), and forward to next higher headquarters with the least practicable delay. If additional reasons for separation are included in the initiating commander’s recommendation, the AGR member will be given the opportunity to rebut those additional reasons.
(d) Where practicable, as determined by the State Adjutant General or the SPMO, AGR personnel pending involuntary separation under this paragraph will, if they request, be provided assistance by a JAGC officer in preparing their rebuttals.
(e) AGR member will not be released from full-time National Guard duty until the State Adjutant General has approved final involuntary separation action.
. This standard was not changed by the United States' Supreme Court’s recent decision in
Seigert v. Gilley,
— U.S.-,
. Eight copies of DD Form 214 are prepared. Copy 1, discussed above, is given the serviceman with the intent that it be provided to future employers. Copy 1 does not contain a reason for separation. The remaining copies do state the reason for separation. Pursuant to Army regulations, however, these will not be seen by potential employers. Copies 2 and 7 are kept in the serviceman’s Military Personnel Records Jacket ("MPRJ") and are not disclosable without the serviceman’s written consent. Copies 3 and 6 are disclosed only to officials who administer *1100 veteran’s eligibility programs, and Copy 5 is disclosed only to the Department of Labor for the purpose of determining the individual’s eligibility for unemployment compensation. These agencies cannot further disclose the forms without the individual’s consent. Copy 8 is maintained for six months in the Separation Transfer Activity File and is then destroyed. Its disclosure is prohibited by the Privacy Act, 5 U.S.C.A. § 552a(b). Copy 4 is maintained in the MPRJ and is provided to the serviceman for his information only upon request. Dkt. 82.
. The court also notes that there is no evidence that Karr ever attempted to obtain Copy 1, which contained no information regarding the reasons for his separation and to which he was entitled.
. There is some question as to whether Trivits' recommendation that Karr be separated involved incidents different from those recounted in the Cochran memorandum.
See