Wigginton v. CentracchioWigginton v. Centracchio
I.
A.
The facts giving rise to the plaintiff-appellant‘s claim are straightforward and may be quickly stated:
Eugene E. Wigginton served in the United States Marine Corps from April of 1967 to September of 1970, when he was honorably discharged. Nine years later - in July of 1979 - the plaintiff received a commission as a Second Lieutenant in the United States Army Reserve. As concomitants of his status as a commissioned reserve officer, Lieutenant Wigginton was appointed an officer of the United States Army National Guard (“USANG“) and of the Rhode Island Army National Guard (“RIANG“), with assignment to a RIANG Military Police
B.
In September of 1996, Major Wigginton brought suit in the Rhode Island Superior Court against General Centracchio and the State
The first count alleged that plaintiff‘s separation from the service, and his consequent ineligibility for promotion to lieutenant colonel, contravened Section 30-3-13 (1994 Reenactment) of Rhode Island General Laws. Section 30-3-13 provides as follows:
All commissioned officers of the staff corps and departments, hereafter appointed, shall have had previous military experience, except chaplains, officers of the judge advocate general‘s corps, and medical corps officers. They shall hold their positions until they shall have reached the age of sixty (60) years, unless retired prior to that time by reason of resignation or disability, or for cause to be determined by an efficiency board or a court-martial legally convened for that purpose. Vacancies among these officers shall be filled by appointment from the commissioned officers of the national guard or from such other civilians as may be specifically qualified for duty therein.
Major Wigginton‘s contention was that - absent resignation, disability, or separation “for cause,” none of which has occurred - the quoted statute had conferred upon him tenure as a commissioned officer of RIANG (albeit, not of USANG) until he should attain the age of sixty. It follows - so Major Wigginton contended - that termination of his tenure as a RIANG officer was abridgement, without due process of law, of a vested property right.
By way of relief, Major Wigginton sought “a preliminary and permanent injunction ordering the defendant3 to reinstate the plaintiff in the Army National Guard, restore to him all his rights and privileges to which he is entitled by reason of his commission, including any back pay, and submit the plaintiff‘s name to the promotion board for Lieutenant Colonel.” (Although the language of Major Wigginton‘s prayer for relief appears broad enough to encompass reinstatement, and associated entitlements, in USANG as well as in RIANG, Major Wigginton‘s brief on appeal expressly acknowledges that “[t]he relief this Plaintiff seeks is limited to the Rhode Island National Guard.“) The complaint also sought attorney‘s fees and costs. Based on plaintiff‘s federal claims, defendants removed the case to the United States District Court for Rhode Island. General Centracchio
Following the District Court‘s ruling that Major Wigginton‘s suit was justiciable, the parties and the District Court turned their attention to the substance of Major Wigginton‘s claims.
The claim presented by Major Wigginton‘s first count was that termination of his status as a RIANG officer deprived him, without due process of law, of a property right created by the mandate of Rhode Island state law. See
With respect to Major Wigginton‘s claim under the first count – i.e., the claim that he had a protected property right arising under
Plaintiff presents the affidavit of Brigadier General Thomas M. Frazer, RIANG (Ret.), an authority on Rhode Island military history. At plaintiff‘s request, General Frazer reviewed the Military Code of Rhode Island and found it to be “archaic and woefully outdated.” Although General Frazer educated the court as to the historical distinctions between line, staff, and general officers, he was unfamiliar with any “staff corps” in the Rhode Island National Guard,
and he could only speculate as to what was meant by “and departments.” Speaking specifically about the text of R.I. Gen. Laws § 30-3-13 , Frazer stated quite candidly, “I have no thought or idea what the writer was trying to convey to the reader . . . .” The defendant‘s attempt to discover the meaning of “staff corps” was no more fruitful. Colonel Rick Baccus, director of personnel and speaking on behalf of the RIANG, was himself hard-pressed to explain to what the expression “staff corps and departments” refers.Of course, in this case, it is incumbent on Major Wigginton to establish that he was a member of the “staff corps and departments.” Even he cannot say with any conviction that he held any such commission. In fact, although Major Wigginton at one time “believed” he was a member of the staff corps, he now admits that he was “never an officer of a corps identified as staff corps officer.” On this basis, Major Wigginton‘s substantive due process claim must fail.
In addressing Major Wigginton‘s argument under the second count that due process required a statement of reasons for his non-retention, the District Court noted Major Wigginton‘s reliance on State v. Ouimette, 367 A.2d 704 (R.I. 1976), a Rhode Island Supreme Court decision holding that an applicant for parole has a due process entitlement to a statement in writing of the reasons for denial of parole. “In so holding,” said the District Court, “the [Rhode Island Supreme Court] balanced the burden of requiring a parole board to give its explanation for its decision against the seriousness of the right to have those reasons revealed. . . . Recognizing that Rhode Island regards due process as a ‘flexible concept,’ [Ouimette, 367 A.2d] at 709, accord Matthews v. Eldridge, 424 U.S. 319, 335 (1976), [this] court does not find the balance tips in Wigginton‘s favor.”
From the District Court‘s judgment dismissing his suit Major Wigginton has appealed.
II.
We have authority to address the issues tendered by Major Wigginton on this appeal if - but only if - the District Court was correct in ruling that appellant‘s suit is justiciable. In their brief in this court, appellees invoke “well-settled case law that . . . claims against superior officers by subordinates are not justicible [sic].” However, appellees’ invocation of “well-settled case law” mandating a finding of non-justiciability appears to be directed only at appellant‘s second count, and not at the first count, notwithstanding that in the District Court the non-justiciability aspect of General Centracchio‘s motion to dismiss was addressed to Major Wigginton‘s entire complaint, and was so treated by the Magistrate Judge in recommending to the District Court that Major Wigginton‘s complaint be dismissed as presenting claims that were non-justiciable. Appellees’ brief does not undertake to explain why the issue of justiciability has become narrower in focus between the District Court and this court.8
The District Court, in its opinion granting summary judgment, recapitulated its prior ruling in which it had reviewed the recommendation of the Magistrate Judge:
that this case should be dismissed as a nonjusticiable controversy. See Report and Recommendation at 10 (February 5, 1997) (citing United States v. Stanley, 483 U.S. 669, 683-84 (1987) and Chappell v. Wallace, 462 U.S. 296, 304 (1983)). By order dated March 31, 1998, this court declined to accept this recommendation in toto, finding that only claims for damages are categorically barred by the doctrine of intramilitary immunity and that injunctive remedies may be available to state guardsmen. Compare Wright v. Park, 5 F.3d 586, 589-90 (1st Cir. 1993) (holding claims for damages on account of injuries incident to military service are barred) with Charles v. Rice, 28 F.3d 1312, 1321 (1st Cir. 1994) (affirming exercise of federal question jurisdiction over national guardsman‘s claim for reinstatement). Accordingly, the court ruled that this matter was justiciable.
The District Court correctly parsed our decision in Wright v. Park. That decision built upon the Supreme Court‘s 1983 decision in Chappell v. Wallace, supra, and the Court‘s 1987 decision in United States v. Stanley, supra. In Chappell, the Supreme Court held that, “[t]aken together, the unique disciplinary structure of the Military Establishment and Congress’ activity in the field constitute special factors which dictate that it would be inappropriate to provide enlisted military personnel with a Bivens-type remedy against their superior officers.” 462 U.S. at 304. (We explained, in Wright v.
Was the District Court also correct in concluding that ”only claims for damages are categorically barred” (emphasis added)? The District Court gleaned this from Charles v. Rice. That case, as the District Court pointed out, was an instance of “exercise of federal question jurisdiction over [a] national guardsman‘s claim for reinstatement.” However, Charles v. Rice is not binding authority for the propriety of that exercise of federal question jurisdiction. As we have already had occasion to point out, in Charles v. Rice the issue of the justiciability of the reinstatement suit brought by the plaintiff national guardsman was addressed by the district court in an interlocutory ruling but was not preserved as an issue on appeal, with the result that this court expressly refrained from passing on the issue. 28 F.3d at 1316 n.2. We are satisfied, nonetheless, that in ruling - contrary to the Magistrate Judge‘s assessment - that Major Wigginton‘s suit was justiciable, the District Court was correct in
The first reason is that, as the foregoing reprise of Wright v. Park establishes, our opinion in that case was solely concerned with intramilitary suits for damages, whether brought against federal actors or, under
The second, and controlling, reason is that, taken together, Chappell and Stanley - the Supreme Court decisions Wright v. Park built upon - make it clear that intramilitary suits alleging constitutional violations but not seeking damages are justiciable.
In Chappell, the unanimous Court, in an opinion by Chief Justice Burger, held that a federal district court could not entertain a Bivens-type damage action in which Navy enlisted personnel complained of racial discrimination at the hands of the officers in command of the naval vessel on which the plaintiffs served. In the concluding section of the opinion, Chief Justice Burger wrote:
Chief Justice Warren had occasion to note that “our citizens in uniform may not be stripped of basic rights simply because they have doffed their civilian clothes.” Warren, The Bill of Rights and the Military, 37 N. Y. U. L. Rev. 181, 188 (1962). This Court has never held, nor do we now hold, that military personnel are barred from all redress in civilian courts for
constitutional wrongs suffered in the course of military service. See, e.g., Brown v. Glines, 444 U.S. 348 (1980); Parker v. Levy, 417 U.S. 733 (1974); Frontiero v. Richardson, 411 U.S. 677 (1973). But the special relationships that define military life have “supported the military establishment‘s broad power to deal with its own personnel. The most obvious reason is that courts are ill-equipped to determine the impact upon discipline that any particular intrusion upon military authority might have.” Warren, supra, at 187. We hold that enlisted military personnel may not maintain a suit to recover damages from a superior officer for alleged constitutional violations.
Four years later, in Stanley, the Court addressed the question whether a plaintiff could bring a Bivens-type damage action, years after having been discharged from the Army, against Army personnel not all of whom had been his military superiors; the gravamen of plaintiff‘s complaint was that, while in service, he had volunteered to participate in what was represented as being a test of protective military equipment but was in fact a test of the effects of LSD, and that as part of the test he had been given doses of what - unbeknownst to him until years after his discharge - was LSD, with deleterious consequences. The Court of Appeals for the Eleventh Circuit, in distinguishing Chappell and ruling that Stanley‘s suit was viable, Stanley v. United States, 786 F.2d 1490, 1495 (11th Cir. 1986), had quoted Chief Justice Burger‘s statement in Chappell that “[t]his Court
We turn, now, to a consideration of the merits of appellant‘s claims.
III.
Appellant, as we have previously explained, makes two claims. The first claim is that the joint action of the Selective Retention Board and General Centracchio in terminating his status as a RIANG officer has deprived him, without due process, of a property right, conferred by
We will first address appellant‘s narrowly focused second claim.11
As noted earlier in this opinion, appellant‘s second claim - that he had a due process right to be told the reasons for his non-retention - invokes the Rhode Island Supreme Court‘s determination in Ouimette, supra, that Rhode Island‘s parole board must, as a matter of due process, state its reasons when it denies parole. See also Pine v. Clark, 636 A.2d 1319, 1324 (R.I. 1994); State v. Tillinghast, 609 A.2d 217, 218 (R.I. 1992). Ouimette, decided in 1976, anticipated the United States Supreme Court‘s pronouncement three years later in Greenholtz v. Nebraska Penal Inmates, 442 U.S. 1, 16 (1979), that “[t]he Nebraska procedure affords an opportunity to be heard, and when parole is denied it informs the inmate in what respects he falls short of qualifying for parole; this affords the process that is due under these circumstances.” Cf. id. at 20-21 (Powell, J., concurring in part and dissenting in part); id. at 38-41 (Marshall, J., joined by Brennan and Stevens, JJ., dissenting in part). See generally 59 Am. Jur. 2d Pardon and Parole § 90 (1987) (“Right to Statement of Reasons for Denial of Parole” (collecting cases)).
Reasons for denying parole are required to be stated because denial of parole is denial of the most basic “‘liberty’ interest.” As Justice Powell observed in Greenholtz, 442 U.S. at 18, “[l]iberty from bodily restraint always has been recognized as the core of the liberty protected by the Due Process Clause from arbitrary governmental action.”
Appellant‘s interest is of a different sort. On the verge of completing twenty years of military service - the great bulk of it
B.
It is Major Wigginton‘s basic submission - key to the first count of his complaint, and for the reasons we have just discussed, to the second count as well - that
All commissioned officers of the staff corps and departments, hereafter appointed, shall have had previous military experience, except chaplains, officers of the judge advocate general‘s corps, and medical corps officers. They shall hold their positions until they shall have reached the age of sixty (60) years, unless retired prior to that time by reason of resignation or disability, or for cause to be determined by an efficiency board or a court-martial legally convened for that purpose. Vacancies among these officers shall be filled by appointment from the commissioned officers of the national guard or from such other civilians as may be specifically qualified for duty therein.
We will now consider the grounds for the summary judgment rulings.
i.
With a view to elucidating the phrase “staff corps and departments” - a phrase that appears to have had its genesis in Rhode Island law in 1956, when a statutory code governing RIANG was enacted16
- the parties summoned experts:
Brigadier General (Retired) Thomas M. Frazer, former Assistant Adjutant General for Rhode Island and former Deputy Commanding General of RIANG, furnished an affidavit on Major Wigginton‘s behalf. General Frazer stated that “[i]n my opinion the HQ STARC position of Education Officer is a Staff position.” With respect to the meaning of
This document and booklet called the Military Code of Rhode Island is an archaic writing and woefully outdated. However it is still utilized in current day fashion within the National Guard. I have no thought or idea what the writer was trying to convey to the reader and that thought can be argued into the future. It is my thought and opinion that the term “All commissioned officers of the staff corps and departments” was
and is referring to the various Staff Officers of the National Guard.
General Centracchio‘s expert was Colonel Rick Baccus, who gave extensive deposition testimony. At the time of his deposition, Colonel Baccus was a supervisory logistics management specialist in RIANG; prior to that assignment he had served as RIANG‘s personnel director. When asked “what is your definition of the term commissioned officers of the states [sic] corps and departments in Rhode Island General Law 30-3-13?,” Colonel Baccus replied:
A. Since I wasn‘t involved in writing the law, it would be difficult for me to give you a specific definition, I can only surmise what I think the definition is, and, again, it‘s referring to some kind of specialty, a special staff position and that‘s where I only drew the analogy.
Q. But you really don‘t know, do you?
A. No, sir, because I was not involved with the law.
A subsequent colloquy was to the same effect:
Q. We have focused a lot on the meaning of the words staff corps, there‘s also the phrase in there Rhode Island General Law?
A. And departments.
Q. Do you attach any meaning to that phrase?
A. No, not at all. Again, sir, I do not know what the law, what the, you know, the authors of the law or what they were basing the previous law
under. They may have carried that forward from previous law.
When asked about the meaning of “staff corps and departments” in
To be honest, sir, because I was not involved with writing law, I‘m not sure, there is no equivalent to today‘s terminology.
After noting that neither General Frazer nor Colonel Baccus purported to be able to offer a coherent construction of “staff corps and departments,” the District Court ruled as follows:
Of course, in this case, it is incumbent on Major Wigginton to establish that he was a member of the “staff corps and departments.” Even he cannot say with any conviction that he held such commission. In fact, although Major Wigginton at one time “believed” he was a member of the staff corps, he now admits that he was “never an officer of a corps identified as staff corps officer.” On this basis Major Wigginton‘s substantive due process claim must fail.
Here we part company with the District Court. On cross-motions for summary judgment, a plaintiff loses if he cannot produce evidence tending to establish a fact that, under the governing law, the plaintiff is required to prove in order to make out his cause of action. But that was not the situation at the point that the District Court granted summary judgment against appellant and in favor of appellees. When the District Court granted summary judgment, no
Prior to a construction by the District Court of
ii.
As we have just observed, the District Court did not arrive at a dispositive construction of
The general thrust of the first two sentences of the statute is apparent. Those persons who are “commissioned officers of the staff corps and departments . . . shall hold their positions until they have reached the age of sixty (60) years, unless retired prior to that time by reason of resignation or disability, or for cause to be determined by an efficiency board or a court martial.” Major Wigginton - a
Thus, what we have before us is a Rhode Island statute which is a tabula rasa. Moreover, the state military code of which the statute is a part is a very special kind of state legislative enactment, for the code governs the Rhode Island aspects of a joint state-federal enterprise of great importance - the Rhode Island Army National Guard. Under these circumstances, in order to achieve a responsible resolution of the issues presented by this pending appeal, it plainly would be better to have a current and authoritative construction of
1. At the time Major Wigginton was discharged from RIANG, was he an officer of the “staff corps and departments” within the meaning of
R.I. Gen. Laws § 30-3-13 ?2. If the answer to Question 1 is “Yes,” does that signify that, pursuant to
R.I. Gen. Laws § 30-3-13 , Major Wigginton was (in the absence of resignation, disability, or dismissal for cause) therefore entitled to continue as a RIANG officer until age sixty, or would Rhode Island‘s statutory and/or decisional law attach any other contingency to Major Wigginton‘s continued status as a RIANG officer?
Accordingly, by an appropriate Certification Order accompanying this opinion, we are certifying these questions of Rhode Island law to the Supreme Court of Rhode Island.
Notes
As pointed out in footnote 2, supra, the second count, in addition to claiming a lack of due process in the failure of the Selective Retention Board and General Centracchio to recite the reasons underlying Major Wigginton‘s non-retention, alleged a failure to follow “the criteria set forth in [NGR 635-102].” The District Court held, in reliance on this court‘s decision in Navas v. González Vales, 752 F.2d 765, 769-70 (1st Cir. 1985), that, because Major Wigginton had not sought review by the Army Board for the Correction of Military Records of the challenged selective retention procedures, his claim of non-compliance with NGR 635-102 “was nonreviewable as a matter of administrative law.” When translated into this court‘s language in Navas, the District Court‘s holding may be taken as signifying that Major Wigginton‘s “regulatory claim [was] a nonjusticiable military matter as he failed to exhaust his intraservice administrative remedies.” 752 F.2d at 771. (Given our ruling in Navas, it is unsurprising that appellant has not pressed the NGR 635-102 issue on this appeal).
As noted in the text, supra, the District Court‘s analysis of Major Wigginton‘s claim of due process entitlement to be told the reasons for non-retention gave some attention to the Rhode Island Supreme Court‘s opinion in Ouimette, supra and it also mentioned the United States Supreme Court‘s opinion in Mathews v. Eldridge, supra. That aspect of the analysis could be read as rejecting Major Wigginton‘s due process claim as being unpersuasive as a matter of constitutional law. However, a later portion of the analysis culminated in emphasizing “the tremendous deference owed to military decision making.” In view of this latter observation, it seems fair to conclude that the District Court, in stating that “[t]hese [second count] claims are not justiciable,” did indeed mean that no part of the second count was litigable.
The phrase “staff corps and departments” appears in two other sections of the statutory code governing RIANG. (For the reader‘s convenience the phrase is printed in bold type):
The national guard shall consist of such number of federally recognized general officers, officers, warrant officers, and enlisted persons, duly commissioned, warranted, or enlisted therein, including officers and enlisted persons of the staff corps and departments, and organized as to branch or arm of service into such federally recognized units, organizations, corps, departments, or otherwise as shall be authorized by the laws of the United States and the regulations issued thereunder.
Persons hereafter commissioned as officers of the national guard shall be selected from the following classes:
(1) Officers or enlisted persons of the national guard;
(2) Officers, active or retired, reserve officers, and former officers of the United States army, air force, navy, marine corps, or coast guard, enlisted men and former enlisted persons of the United States army, air force, navy, marine corps, or coast guard who have received an honorable discharge therefrom;
(3) Graduates of any of the United States military and naval academies;
(4) Graduates of schools, colleges, universities, and officers’ training camps, where they have received military instruction under the supervision of an officer of the armed forces on active duty who certified their fitness for appointment as commissioned officers;
(5) For the technical branches or staff corps and departments, such other civilians as may be specially qualified for duty therein; and
(6) Or otherwise, as the above classes shall be changed or altered by the laws of the United States and the regulations issued thereunder.
Similar, but not identical, wording is to be found in the first sub-section (here, in bold type) of a statute dealing with the governor‘s authority to organize, and reorganize, units of the Rhode Island militia:
(a) The governor may organize, alter, increase, divide, annex, consolidate, reorganize, disband, or decrease any unit, organization, staff corps, and department whenever in his or her judgment the efficiency of the state militia will be thereby increased or to make the state conform to any table of organization or system of training prescribed by the laws of the United States or the rules or regulations prescribed thereunder for the organization and training of the national guard.
(b) For that purpose, the number of commissioned officers, warrant officers and enlisted men in any unit, organization, staff corps, and department may be increased or diminished and the grades of these commissioned officers, warrant officers, and enlisted men may be altered to the extent necessary to conform thereto.
(c) No organization of the national guard shall be disbanded nor its minimum strength reduced except in conformity with the laws of the United States.
See supra note 16.
It may be noted that the laws of Massachusetts governing the Massachusetts guard provide that an officer of the “state staff” is entitled to “hold his position until he reaches the age of sixty-five years unless separated prior to that time by resignation, disability, or for cause by a court-martial legally convened for that purpose.”