USCA1 Opinion
UNITED STATES COURT OF APPEALS
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
FOR THE FIRST CIRCUIT
____________________
No. 92-2338
OSCAR CHARLES,
Plaintiff, Appellant,
v.
HONORABLE DONALD RICE, SECRETARY OF THE
UNITED STATES AIR FORCE, ET AL.,
Defendants, Appellees.
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APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Carmen C. Cerezo, U.S. District Judge]
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____________________
Before
Cyr, Circuit Judge,
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Bownes, Senior Circuit Judge,
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and Stahl, Circuit Judge.
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William Ramirez-Hernandez, with whom Paula Sciabarrasi, Vargas &
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Ramirez Law Office, and Charles S. Hey-Maestre, Sabana Education and
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Civil Rights Project, were on brief for appellant.
Michael S. Raab, Attorney, Civil Division, Department of Justice,
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with whom Guillermo Gil, United States Attorney, Frank W. Hunger,
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Assistant Attorney General, Anthony J. Steinmeyer, Attorney, Civil
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Division, Department of Justice, and Col. Raul F. Barbara, Lt. Col.
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Conrad Von Wald, Major Carla S. Walgenbach, and Major Patricia A.
________________ __________________________ __________________
Kerns, Of Counsel, Department of the Air Force, General Litigation
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Division, were on brief for appellees Honorable Donald Rice, Secretary
of the
United States Air Force, and Lt. General Conaway, Chief, National
Guard Bureau.
Carlos Lugo-Fiol, Deputy Solicitor General for the Commonwealth
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of Puerto Rico, with whom Pedro A. Delgado-Hernandez, Solicitor
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General, was on brief for appellees William Miranda-Marin, the
Adjutant General of the Commonwealth of Puerto Rico, Colonel Manuel A.
Guzman, of the Puerto Rico Air National Guard, and Colonel Gilberto
Colon, Personnel Officer, Puerto Rico Air National Guard.
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July 14, 1994
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BOWNES, Senior Circuit Judge. After more than
BOWNES, Senior Circuit Judge.
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twenty years of service in the Puerto Rico Air National Guard
(PRANG) and employment as a National Guard technician,
plaintiff-appellant, Oscar Charles, tested positive for the
Human Immunodeficiency Virus (HIV) and was discharged from
PRANG and from his technician job. Plaintiff filed an action
under 42 U.S.C. 1983 seeking declaratory relief,
reinstatement, and back pay from defendants-appellees, the
Secretary of the United States Air Force, the Chief of the
United States National Guard Bureau, PRANG, the Adjutant
General of Puerto Rico, and two PRANG officers. The district
court reached the merits and ruled in favor of defendants.
See Doe v. Rice, 800 F. Supp. 1041 (D.P.R. 1992). We vacate
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the decision with respect to plaintiff's claim for back pay
for his technician job, but affirm the decision on the merits
in all other respects.
I.
I.
BACKGROUND
BACKGROUND
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National Guard
National Guard
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Before stating the facts immediately relevant to
plaintiff's case, we provide the following description of the
National Guard. The Guard is a hybrid state and federal
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organization.1 While a part of the Armed Forces of the
United States, the Guard
occupies a distinct role in the federal
structure that does not fit neatly within
the scope of either state or national
concerns. In each state the National
Guard is a state agency, under state
authority and control. At the same time,
federal law accounts, to a significant
extent, for the composition and function
of the Guard. Accordingly, the Guard may
serve the state in times of civil strife
within its borders while also being
available for federal service during
national emergencies.
Knutson v. Wisconsin Air Nat'l Guard, 995 F.2d 765, 767 (7th
_______ _________________________
Cir.), cert. denied, 114 S. Ct. 347 (1993).
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The governor and his or her appointee, the Adjutant
General, command the Guard in each state. See, e.g., P.R.
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Laws Ann. tit. 25, 2058-2059; see also 32 U.S.C. 314.
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The Defense Department, the Secretaries of the Army and Air
Force, and the National Guard Bureau prescribe regulations
and issue orders to organize, discipline, and govern the
Guard. 32 U.S.C. 110. States that fail to comply with
federal regulations risk forfeiture of federal funds
____________________
1. National Guard units may be established in the states,
territories, Puerto Rico, and the District of Columbia. 32
U.S.C. 101(6). For the sake of convenience, we refer to
all these entities as states. The differences between Puerto
Rico and a state are immaterial in this context.
Penagaricano v. Llenza, 747 F.2d 55, 56 n.1 (1st Cir. 1984),
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overruled on other grounds by Wright v. Park, 5 F.3d 586, 591
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(1st Cir. 1993).
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allocated to organize, equip, and arm state Guards. Id.
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101, 107, 108, 501; Knutson, 995 F.2d at 767.
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Every member of the state Air National Guard is
also enlisted in a federal organization known as the Air
National Guard of the United States (ANGUS), a component of
the Ready Reserves of the Armed Forces, which is activated
when the Guard is called into federal service. 10 U.S.C.
261, 269, 8079, 8261; 32 U.S.C. 101, 301; Perpich v.
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Department of Defense, 496 U.S. 334, 345-46 (1990).
_____________________
Many Guard members, so-called "weekenders," serve
only part-time, by participating in drills and maneuvers on
weekends and in the summer. National Guard technicians
participate in those activities, but also hold full-time
civilian jobs with their units. Guard technicians are
federal civil servants, hired and supervised by the state
Adjutant General. 32 U.S.C. 709. Technicians must
maintain membership in the state Guard to remain qualified
for federal employment. Id.
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Plaintiff's Separation from Service
Plaintiff's Separation from Service
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Plaintiff enlisted in PRANG in 1967 and was hired
as a Guard technician two years later. From 1969 until he
was discharged, he drew two salaries: one from PRANG, and
the other from the federal government for his services as an
aircraft maintenance technician. In June 1990, he tested
positive for HIV in a routine screening of military
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personnel. That result was confirmed by a second test in
June or early July 1990.
Plaintiff received an order on September 21, 1990,
stating that he had been honorably discharged from PRANG on
September 17, 1990, and transferred from the Ready Reserve to
the Standby Reserve. That order was based on Air National
Guard Regulation (ANGR) 39-10, which states that members of
the Guard testing positive for HIV shall be transferred to
the Standby Reserve unless a "nondeployable position" is
available. ANGR 39-10 8-25. "Deployability," according to
the record, refers to the ability to be sent anywhere in the
world for duty. The district court heard testimony that most
Guard positions are classified as deployable.
On October 16, 1990, plaintiff was notified that
his eligibility for employment as a technician ended when he
was discharged from the Guard. Plaintiff was advised that he
would be separated from federal employment after November 19,
1990.
Plaintiff's requests for revocation of these orders
were unavailing. In addition, his application for disability
benefits was denied because he was not physically disabled.
Thereafter, plaintiff filed suit in the United
States District Court for the District of Puerto Rico,
alleging that ANGR 39-10 was invalid, and that his discharge
from PRANG and from his technician job violated National
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Guard regulations, Defense Department policy, and the
principles of due process and equal protection. Plaintiff
sought reinstatement and back pay for his military and
civilian jobs, as well as a declaratory judgment that ANGR
39-10 was invalid. After prevailing in several pretrial
skirmishes,2 plaintiff was ultimately unsuccessful when the
court decided his case on the merits. Plaintiff remained
asymptomatic at the time of trial.
Issues
Issues
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The issues on appeal arise from the trial court's
decision that ANGR 39-10 was valid, and that plaintiff's
separation from PRANG and from his federal position did not
violate due process and equal protection principles. In
addition to assailing several of the court's factual
findings, plaintiff raises the following legal issues: [1]
whether the lack of a hearing upon his discharge violated
ANGR 39-10 and his right to procedural due process; [2]
whether ANGR 39-10 conflicted with Defense Department policy;
[3] whether ANGR 39-10 violated his right to equal
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2. The district court issued interlocutory orders that
plaintiff's case was justiciable, and that plaintiff was not
required to seek relief from the Air Force Board for the
Correction of Military Records prior to filing his civil
suit. Those issues have not been briefed by the parties on
appeal, and we do not address them in this case. For the
same reason, we do not address whether defendants can be said
to have acted under color of state law in discharging
plaintiff.
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protection; and [4] whether he was entitled to a hearing
before a medical board.
II.
II.
MERITS
MERITS
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Regulations
Regulations
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Plaintiff argues that PRANG failed to follow ANGR
39-10 in discharging him. At the time of the discharge, that
regulation provided in pertinent part:
Members [of the Air National Guard] not
entitled to military medical health care
who display serologic evidence [of HIV
infection] will be transferred to the
Standby Reserves if they cannot be used
in a non-deployable position. These
members will be referred to their private
physicians for medical care and
counseling.
ANGR 39-10 8-25(b). Plaintiff does not argue that PRANG
lacked the authority to discharge him once he was transferred
to the Standby Reserve. Rather, plaintiff's argument is that
PRANG did not follow the procedures required by ANGR 39-10
when he was transferred to the Standby Reserve.
The court found that plaintiff was discharged from
PRANG and transferred to the Standby Reserve after PRANG
conducted an unsuccessful search for a nondeployable position
compatible with plaintiff's civil technician job. We review
the findings for clear error, Fed. R. Civ. P. 52(a), paying
heed to the district court's superior position to gauge the
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credibility of witnesses. Dedham Water Co. v. Cumberland
_________________ __________
Farms Dairy, Inc., 972 F.2d 453, 457 (1st Cir. 1992).
_________________
In this case, we find no error in the determination
that a PRANG personnel officer, Major Urutia, had conducted
an adequate--but ultimately fruitless--search from July or
August of 1990 into 1991 for a vacant, nondeployable position
for plaintiff. Urutia testified that the search for a vacant
position extended beyond plaintiff's own unit into other
units and took into consideration plaintiff's tactical,
environmental, and electrical systems expertise. Urutia
testified that she was unable to find a vacant nondeployable
military position compatible with plaintiff's qualifications.
A unit manning document compiled in August 1990, as well as
the testimony of Julio Godreau Marrero, an officer in
plaintiff's squadron, corroborated Urutia's testimony.
The record contains two statements regarding vacant
nondeployable positions: one witness stated that he had
heard--but was unable to verify--that a cook's position was
available, and another witness testified that he had heard
that a switchboard operator position was vacant in late
December 1991. Even if we were to assume that these hearsay
statements were reliable, but cf. Doe, 800 F. Supp. at 1047
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n.7 (describing one of the statements as "vague hearsay"),
there is nothing in the record indicating that either job was
compatible with plaintiff's position as an aircraft
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maintenance technician. Plaintiff has not challenged the
district court's finding that the Air Force considers
compatibility between a Guard member's military and civilian
technician positions necessary. Id. at 1047 & n.6. We find
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ample support in the record for the district court's finding
that no suitable, nondeployable positions were available.
Consequently, we conclude that plaintiff's discharge from
PRANG and transfer to the Standby Reserve did not violate
ANGR 39-10 8-25.
Plaintiff next attacks the absence of a hearing
accompanying his discharge as violative of ANGR 39-10.
According to plaintiff, paragraph 1-23 of ANGR 39-10
guaranteed him a hearing. That paragraph provided:
Unless otherwise indicated, airman [sic]
recommended for discharge under [ANGR 39-
10] will be offered an opportunity for
administrative discharge board
[procedures] . . . .
ANGR 39-10 1-23. Prior to plaintiff's discharge, however,
ANGR 39-10 was amended as follows:
Effective immediately [August 10, 1990,]
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members processed [in accordance with]
_________________________________________
ANGR 39-10, para 8-25 will not be
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notified nor offered an opportunity for
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administrative discharge board
_________________________________________
procedures. The upcoming revision of
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ANGR 39-10 will indicate these cases will
be administered through appropriate
medical channels.
(Emphasis added.)
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Citing Nicholson v. Brown, 599 F.2d 639, 648 (5th
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Cir. 1979), for the proposition that an agency's "application
to a case of new principles announced in the course of
deciding that case may be so tinged with unfairness as to
amount to an abuse" of discretion, plaintiff argues that the
amendment was invalid as to him. While we agree that the
amendment became effective after he tested positive for HIV,
we disagree that it constituted a new rule developed in the
course of a proceeding affecting plaintiff. Rather, the
amendment to ANGR 39-10 was procedural, not substantive, and
became effective before plaintiff's discharge was processed.
"The [procedural] regulations in force at the time
administrative proceedings take place govern, not those in
effect at some earlier time when the events giving rise to
the action occurred." Chilcott v. Orr, 747 F.2d 29, 34 (1st
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Cir. 1984); accord Alberico v. United States, 783 F.2d 1024,
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1028 (Fed. Cir. 1986). Accordingly, the amendment to ANGR
39-10 deleting the right to an administrative hearing applied
to plaintiff's case.
Plaintiff attempts to impugn the amendment by
arguing that it is analogous to a bill of attainder, and that
it was never formally adopted. A bill of attainder is a law
that inflicts punishment upon identifiable members of a class
without providing a judicial trial. Nixon v. Administrator
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of Gen. Servs., 433 U.S. 425, 468-69 (1977).
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Plaintiff's allegations are unsupported by the
record. Captain Robinson, the National Guard Bureau officer
responsible for the amendment to ANGR 39-10, testified that
he proposed it in 1989 to eliminate unnecessary procedures
where the individual's HIV status was undisputed, and where
there were no nondeployable positions available. According
to Robinson, only if a nondeployable position were available
would further procedures be warranted to make a medical
determination of whether the HIV infection would interfere
with the duties of that position. An administrative board,
however, could not make such an evaluation because it lacks a
medical faculty. And because Guard members are generally not
entitled to military medical health care, the infected
individual would have to pay for any additional medical
tests. It is undisputed that plaintiff's status in the Guard
did not entitle him to military health care. Robinson
testified that his superiors approved the amendment and that
it became effective on August 10, 1990. The uncontradicted
evidence thus indicates that the amendment was a duly-
approved, general policy change, designed to effect the
nonpunitive purpose of eliminating unnecessary, costly
procedures. See Alberico, 783 F.2d at 1028 (rejecting
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argument that generally-applicable amendment of regulation
affecting plaintiff's service record constituted bill of
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attainder, even though amendment was "certainly inspired by
his case").
HIV Policy
HIV Policy
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Plaintiff's next argument is that his discharge
violated Defense Department policy. There are two prongs to
plaintiff's argument. First, plaintiff quotes the following
policy statement from the Defense Department and the Air
Force, regarding active duty personnel infected with HIV, in
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an effort to prove that ANGR 39-10 conflicted with Department
policy:
Individuals with serologic evidence of
HIV infection and who show no evidence of
clinical illness or other indication of
immunologic or neurologic impairment
related to HIV infection, shall not be
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separated solely on the basis of
_________________________________________
serologic evidence of HIV infection.
____________________________________
(Emphasis added.) Plaintiff's attempt to use that policy
statement to undermine ANGR 39-10 is unavailing, however,
because he was a reservist, not on active duty.
There is a provision regarding reservists with HIV
in each of the memoranda containing that policy statement.
The Defense Department policy states that "the Secretaries of
the Military Departments may restrict individuals [in the
Reserves] with serologic evidence of HIV infection to
nondeployable units or positions for purposes of force
readiness." Air Force policy, in turn, states that
reservists "shall be transferred to the Standby Reserve, only
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if they cannot be utilized in the Selected [i.e., Ready]
____
Reserve," and that the decision regarding fitness for the
Selected Reserve must take into account that "military
personnel [with HIV] shall only be assigned to nondeployable
units and positions." In this case, plaintiff was not
separated solely because of his HIV condition. He was
transferred to the Standby Reserve and discharged from PRANG
because he tested positive for HIV and there were no
compatible, nondeployable positions available.
The second prong of plaintiff's argument is that
the Secretary of the Air Force allegedly abused his
discretion in restricting reservists with HIV to
nondeployable positions. A Defense Department policy
provided the Secretary with the authority to make such a
restriction "for purposes of force readiness." According to
plaintiff, the restriction is groundless because persons with
HIV can lead normal lives.
Our standard of review of decisions committed to an
agency's discretion is invariably deferential. See New
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England Legal Found. v. Massachusetts Port Auth., 883 F.2d
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157, 169 (1st Cir. 1989). And in the context of a decision
such as the Secretary's, in which "force readiness" is at
issue, courts must be especially circumspect. The Supreme
Court has stated that "it is difficult to conceive of an area
of governmental activity in which the courts have less
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competence." Gilligan v. Morgan, 413 U.S. 1, 10 (1973); see
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also Chilcott, 747 F.2d at 32 ("Interference by the judiciary
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with the administration of the military would undermine this
nation's ability to maintain a disciplined and ready fighting
force.").
The record provides ample support for our finding
that the Secretary did not abuse his discretion in adopting
the policy underlying ANGR 39-10. The Air Force Ready
Reserve (including the National Guard) makes demands of its
members that civilians might not normally face, and these
demands bear on "force readiness." The National Guard's
"whole reason for being is to be ready to be deployed,
generally outside of the United States." Doe, 800 F. Supp.
___
at 1045. There is ample support for the finding that persons
with HIV who are asymptomatic are not deployable because of
their restricted capacity to be immunized, their inability to
donate blood, and the unpredictability of the onset of
symptoms. Id. It follows that force readiness is affected
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when nondeployable persons staff deployable positions. No
further criticism of the Secretary's decision is warranted
under the circumstances.
Equal Protection
Equal Protection
________________
Plaintiff's next argument is that ANGR 39-10 on its
face and as applied violated his right to equal protection.
Plaintiff argues in his brief that policies of the Department
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of Defense and Air Force draw an invalid distinction between
reservists and active duty personnel by permitting the former
to be discharged solely because of their HIV status, while
guaranteeing to the latter the right not to be discharged on
the basis of HIV infection alone.
The district court declined to reach a similar
issue in its order because plaintiff did not adequately raise
it in his complaint or at trial. See Doe, 800 F. Supp. at
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1044 n.1. Our review of the record substantiates that
finding. While plaintiff flagged the issue in his posttrial
brief and in his memorandum supporting his motion for an
injunction, his complaint alleged that he suffered a
violation of equal protection because of his HIV status, not
because of his status as a reservist.
Even if the issue were preserved, we would find it
groundless. The policies and regulations at issue in this
case do not mandate that reservists be separated solely on
the basis of HIV infection. Rather, a reservist with HIV is
transferred to the Standby Reserve only if there are no
nondeployable positions available.
To the extent plaintiff seeks appellate review of
the equal protection issue alleged in his complaint, i.e.,
____
discrimination based on his HIV condition, we deem the matter
waived because plaintiff has not argued it on appeal in more
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than a perfunctory manner. See Gamma Audio & Video, Inc. v.
___ __________________________
Ean-Chea, 11 F.3d 1106, 1113 (1st Cir. 1993).
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Due Process
Due Process
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Plaintiff's argument on appeal relating to the
constitutional right to due process is also deficient.
Although his brief refers to the right to due process, he
made no explicit argument that the Due Process Clause by
itself required PRANG to provide notice and a hearing. The
essence of his argument on appeal is captured in the
following quotation: "Certainly, at a minimum, due process
of law, as guaranteed by the Fifth and Fourteenth Amendments
to the United States Constitution, requires that the Air
Force follow its own regulations in discharging an airman
from the Air Force, providing the procedural right to the
affected person set forth by applicable law and regulations."
Br. for Appellant, 18-19. Plaintiff did not assert in his
brief that he suffered a deprivation of any protected liberty
or property interest. Moreover, he cited no statute,
regulation, rule, or other basis for establishing a property
interest in his position in the Guard. Accordingly, we
conclude that plaintiff waived the issue. Playboy Enters. v.
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Public Serv. Comm'n, 906 F.2d 25, 40 (1st Cir.), cert.
____________________ _____
denied, 498 U.S. 959 (1990) ("An appellant waives any issue
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which it does not adequately raise in its initial brief,
because `in preparing briefs and arguments, an appellee is
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entitled to rely on the content of an appellant's brief for
the scope of the issues appealed.'" (quoting Pignons S.A. de
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Mecanique v. Polaroid Corp., 701 F.2d 1, 3 (1st Cir.
_________ _______________
1983))).3
Where the issue is not one easily resolved in the
appellant's favor, full briefing is especially important.
Puerto Rico law and federal law are similar in stating that
National Guard members may be discharged or transferred in
accordance with regulations, with the approval of an
appropriate authority. Compare P.R. Laws Ann. tit. 25,
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2072 with 10 U.S.C. 269(e), 1001(b). Courts have
____
generally held that there is no property interest in
continuing employment in the military under such
circumstances. See, e.g., Rich v. Secretary of the Army, 735
___ ____ ____ _____________________
F.2d 1220, 1226 (10th Cir. 1984) (enlistee discharged
according to regulations lacked property interest in
remainder of enlistment term); accord Guerra v. Scruggs, 942
______ ______ _______
____________________
3. Plaintiff stated at oral argument that the record
contained evidence that he held a property right in his
military position in the form of a "retention letter." While
that letter, dated June 20, 1990, informed plaintiff that he
had been selected "for continued retention" in ANGUS through
1992, it also contained the following caveat: "Selection for
continued retention . . . does not preclude applicable
military authority from separating you for other reasons [in
accordance with] applicable ANG or USAF regulations . . . ."
We need not decide whether plaintiff had a "legitimate claim
of entitlement" to continued employment, or whether the
letter's caveat and the existence of ANGR 39-10 rendered any
putative interest at most a "unilateral expectation," Board
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of Regents v. Roth, 408 U.S. 564, 577 (1972), because
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plaintiff waived the issue.
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F.2d 270, 278 (4th Cir. 1991); see also Beller v. Middendorf,
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632 F.2d 788, 805 (9th Cir. 1980) (enlistee held no property
interest in remainder of enlistment term because no
reasonable expectation of continued employment existed once
enlistee was found to be within regulatory class of
dischargeable persons), cert. denied, 452 U.S. 905 (1981);
_____ ______
cf. Navas v. Gonzalez Vales, 752 F.2d 765, 768 (1st Cir.
___ _____ ______________
1985) (officer lacks property interest in military
employment); Fredericks v. Vartanian, 694 F.2d 891, 893-94
__________ _________
(1st Cir. 1982) (member of state Guard did not hold property
interest in his rank, where state law did not place any
relevant restrictions on commanding officer's authority to
demote him). Because of plaintiff's failure to develop the
argument on appeal, we decline to consider whether the
constitution required PRANG to provide notice and a hearing.
Entitlement to Medical Board Review
Entitlement to Medical Board Review
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Finally, plaintiff assails the district court's
conclusion that he was not entitled to a medical board
hearing because he suffered "the sui generis situation of an
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administrative discharge based upon medical considerations."
Doe, 800 F. Supp. at 1048. A medical board is responsible
___
for determining an individual's entitlement to disability
benefits. Plaintiff argues that he has a right to a medical
board review under 10 U.S.C. 1214-1215 because he was
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discharged as a result of his medical condition. Under
1214, "[n]o member of the armed forces may be retired or
separated for physical disability without a full and fair
hearing if he demands it."
The problem with plaintiff's argument is that he
produced no evidence which would have entitled him to medical
board review. It is undisputed that plaintiff is not
medically disabled. A "physical disability" must be the
reason for discharge before a board is convened. See 10
___
U.S.C. 1214.
Furthermore, even if we were to conclude that an
HIV infection is a "physical disability" because it is a
medical condition rendering plaintiff unfit for worldwide
duty, we would not conclude that plaintiff is entitled to a
medical board hearing. It is a sufficient bar to such a
claim that plaintiff offered no proof that he would be
entitled to disability benefits. See Candelaria v. United
___ __________ ______
States, 5 Cl. Ct. 266, 273 (1984); see also Abatemarco v.
______ ___ ____ __________
United States, 226 Ct. Cl. 708, 710-11 (1981). A reservist
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in plaintiff's position with more than twenty years of
service is entitled to disability benefits only if he or she
shows that the disability "result[ed] from an injury" and
"[wa]s the proximate result of performing active duty or
inactive-duty training." 10 U.S.C. 1204. The record in
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this case is devoid of proof that plaintiff acquired HIV as a
result of performing duties in the Guard.
III.
III.
JURISDICTION
JURISDICTION
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Before drawing this opinion to a close, we address
a jurisdictional issue. Defendants Secretary of the Air
Force and Chief of the National Guard Bureau (hereinafter the
federal defendants) argue that we do not have appellate
jurisdiction because plaintiff's request for back pay brings
this case within the Tucker Act. See 32 U.S.C. 709 (Guard
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technicians are federal employees). Analyzing this issue
requires an understanding of the Tucker Act and an
appreciation of the two types of claims at issue: [1] the
1983 claims for back pay and injunctive relief against the
Puerto Rico defendants in their official capacities (e.g.,
____
the Adjutant General) based on plaintiff's discharge from
PRANG; and [2] the claim for back pay against the federal
defendants based on the termination of plaintiff's technician
position.
Under the Tucker Act, 28 U.S.C. 1491, the United
States waived its sovereign immunity from nontort claims for
money damages and specified which courts could hear such
claims. See United States v. Testan, 424 U.S. 392, 398
___ ______________ ______
(1976). Claims against the United States exceeding $10,000
("Big" Tucker Act claims), founded upon the Constitution, a
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federal statute, a regulation, or contract, are in the
jurisdiction of the Court of Federal Claims. 28 U.S.C.
1491. The district courts and the Court of Federal Claims
have concurrent jurisdiction over "Little" Tucker Act claims,
i.e., for money damages up to $10,000. 28 U.S.C.
____
1346(a)(2) (Little Tucker Act); Sibley v. Ball, 924 F.2d 25,
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28-29 (1st Cir. 1991). The Federal Circuit Court of Appeals
has exclusive appellate jurisdiction over appeals from the
Court of Federal Claims and over Little Tucker Act cases
unrelated to federal taxes. 28 U.S.C. 1295; United States
_____________
v. Hohri, 482 U.S. 64, 68, 72-73 (1987); Sibley, 924 F.2d at
_____ ______
29.
In Sibley v. Ball, 924 F.2d at 29, we considered
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whether we had jurisdiction over an action brought against
the Secretary of the Navy for back pay, where the complaint
sought back pay "within the jurisdiction" of the district
court. We held that the case arose under the Little Tucker
Act, even though the plaintiff did not cite that Act in his
jurisdictional statement. Id. Consequently, we found that
___
the Federal Circuit had exclusive appellate jurisdiction.
Id. In this case, plaintiff cited only 28 U.S.C. 1331, the
___
statute providing federal question jurisdiction, as the basis
for filing his 1983 claims in the district court. But see
___ ___
Sibley, 924 F.2d at 28 (Section "1331 does not by its own
______
terms waive sovereign immunity and vest in district courts
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plenary jurisdiction over all, or any, suits which--by
seeking a money judgment . . .--are in substance suits
against the United States.").
The district court clearly had federal question
jurisdiction over the Civil Rights Act claims for injunctive
relief asserted against the Puerto Rico defendants based on
plaintiff's discharge from PRANG.4 28 U.S.C. 1331; 42
U.S.C. 1988. Moreover, we are convinced that the Federal
Circuit does not have exclusive appellate jurisdiction here,
as it did in Sibley, 924 F.2d at 29, because plaintiff's back
______
pay claim here exceeds the jurisdictional limit for the
Little Tucker Act. For the purposes of the Tucker Act, "the
amount of a claim against the United States for back pay is
the total amount of back pay the plaintiff stands ultimately
to recover in the suit and is not the amount of back pay
accrued at the time the claim is filed." Smith v. Orr, 855
_____ ___
F.2d 1544, 1553 (Fed. Cir. 1988) (citing cases). At trial,
plaintiff did not waive any claim against the United States
____________________
4. Although the parties have not asked us to examine the
effect of the Eleventh Amendment in this context, we note
that a district court is not divested of jurisdiction over a
case involving a request for reinstatement and back pay
simply because the Eleventh Amendment precludes an award of
back pay. See Will v. Michigan Dept. of State Police, 491
___ ____ _______________________________
U.S. 58, 71 n.10 (1989); Barreto-Fred v. Aponte-Roque, 916
____________ ____________
F.2d 37, 39 (1st Cir. 1990); Melo v. Hafer, 912 F.2d 628, 635
____ _____
(3d Cir. 1990), aff'd, 112 S. Ct. 358 (1991); see also
_____ ___ ____
Echevarria-Gonzalez v. Gonzalez-Chapel, 849 F.2d 24, 32 (1st
___________________ _______________
Cir. 1988) (stating that reinstatement is prospective
relief).
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for back pay in excess of $10,000. The record indicates that
the amount of back pay allegedly due plaintiff is more than
$10,000. Consequently, we have jurisdiction over the
injunctive-relief issues on appeal as to the Puerto Rico
defendants.
But we can identify no basis for district court
jurisdiction over the back pay claim against the federal
defendants. Neither the Little Tucker Act, nor 28 U.S.C.
1331 provides such authority. Accordingly, we vacate the
district court's order with respect to the back pay claim
asserted against the federal defendants.
We have authority to transfer to another court with
jurisdiction any action over which we lack jurisdiction, if
such a transfer is in the interests of justice. 28 U.S.C.
1631. Arguably, the Court of Federal Claims has jurisdiction
over plaintiff's claim for overdue Guard technician's pay
under the Tucker Act and the Back Pay Act, 5 U.S.C. 5596.
In Gnagy v. United States, 634 F.2d 574, 580 (Ct. Cl. 1980),
_____ _____________
and in Christoffersen v. United States, 230 Ct. Cl. 998,
______________ _____________
1003-04 (1982), however, the Court of Claims, predecessor to
the Court of Federal Claims, held that the Back Pay Act did
not provide a basis for a Guard technician, validly
discharged from his or her unit, to recover damages against
the United States. The court in Gnagy, 634 F.2d at 579,
_____
stated:
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An essential element of the right to
recover under the Back Pay Act is that
the personnel action which has resulted
in loss of pay be "unjustified or
unwarranted." This element is absent in
the instant case. A prerequisite to
plaintiff's former employment as a
civilian technician for the National
Guard was that he be a member of the
National Guard. When he was discharged
from [his Guard unit], . . . section
709(e)(1) of 32 U.S.C. (1976) required
that his civilian technician employment
be terminated. Hence, the termination of
this employment was not unjustified or
unwarranted. Rather, it was mandated by
federal statutory law. The sum effect of
this is that the claim in question must
be dismissed.
Id. (footnotes omitted); accord Christoffersen, 230 Ct. Cl.
___ ______ ______________
at 1001-04; see also Christoffersen, 230 Ct. Cl. at 1005
___ ____ ______________
(ruling on motion for reconsideration) (panel "denied
plaintiffs' claims as not within its jurisdiction"). Gnagy
_____
and Christoffersen effectively removed such back pay claims
______________
from the jurisdiction of the Court of Federal Claims because
the Tucker Act invests that court with the power to grant
relief only when a substantive right to monetary relief
exists. See Testan, 424 U.S. at 398, 400; Eastport Steamship
___ ______ __________________
Corp. v. United States, 372 F.2d 1002, 1007-08 (Ct. Cl.
_____ ______________
1967). We can educe from plaintiff's arguments no other
basis for federal jurisdiction over the back pay claim
relating to his civilian technician job. See Martinez v.
___ ________
United States, 26 Cl. Ct. 1471, 1476 (1992) (court lacks
______________
jurisdiction over due process and equal protection claims
-24-
24
based on 42 U.S.C. 1983), aff'd, 11 F.3d 1069 (Fed. Cir.
_____
1993); Montoya v. United States, 22 Cl. Ct. 568, 570 (1991)
_______ ______________
(similar); Anderson v. United States, 22 Cl. Ct. 178, 179 n.2
________ _____________
(1990) ("While this court has jurisdiction in military pay
cases seeking reinstatement, back pay and allowances
generally, under 28 U.S.C. 1491, it has no jurisdiction
over cases arising under the Civil Rights Act."), aff'd, 937
_____
F.2d 623 (Fed. Cir. 1991); Montalvo v. United States, 231 Ct.
________ _____________
Cl. 980, 982-83 (1982) (court lacks jurisdiction over claims
based on violations of due process); cf. Dehne v. United
___ _____ ______
States, 970 F.2d 890, 892 (Fed. Cir. 1992) (Court of Federal
______
Claims has jurisdiction over Guard member's claim for overdue
military pay, based on statutes stipulating military pay rate
and authorizing correction of military records).
Because the district court lacked subject matter
jurisdiction to entertain plaintiff's back pay claim, we
vacate that aspect of the district court's opinion.
Moreover, because the Court of Federal Claims, the only
tribunal arguably possessed of jurisdiction over such claims
against the United States, has expressly held that it lacks
subject matter jurisdiction where a civilian technician has
been duly discharged from his state Guard unit, a transfer of
the claim pursuant to 28 U.S.C. 1631 would be to no avail.
The claim is therefore dismissed for want of jurisdiction.
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25
In all other respects, we affirm the district court decision
on the merits.
It is so ordered.
It is so ordered.
_________________
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