28 F.3d 1312 (1st Cir. 1994), 92-2338, Charles v. Rice

Docket Nº:92-2338.
Citation:28 F.3d 1312
Party Name:Oscar CHARLES, Plaintiff, Appellant, v. Honorable Donald RICE, Secretary of the United States Air Force, et al., Defendants, Appellees.
Case Date:July 14, 1994
Court:United States Courts of Appeals, Court of Appeals for the First Circuit

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28 F.3d 1312 (1st Cir. 1994)

Oscar CHARLES, Plaintiff, Appellant,


Honorable Donald RICE, Secretary of the United States Air

Force, et al., Defendants, Appellees.

No. 92-2338.

United States Court of Appeals, First Circuit

July 14, 1994

Heard March 10, 1994.

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William Ramirez-Hernandez, with whom Paula Sciabarrasi, Vargas & Ramirez Law Office, and Charles S. Hey-Maestre, Sabana Education and Civil Rights Project, Rio Piedras, PR, were on brief for appellant.

Michael S. Raab, Civil Div., Dept. of Justice, with whom Guillermo Gil, U.S. Atty., Frank W. Hunger, Asst. Atty. Gen., Anthony J. Steinmeyer, Civil Div., Dept. of Justice, and Col. Raul F. Barbara, Lt. Col. Conrad Von Wald, Major Carla S. Walgenbach, and Major Patricia A. Kerns, of counsel, Dept. of the Air Force, Gen. Litigation Div., Washington, DC, 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 Sol. Gen. for the Commonwealth of Puerto Rico, with whom Pedro A. Delgado-Hernandez, Sol. Gen., Hato Rey, PR, 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.

Before CYR, Circuit Judge, BOWNES, Senior Circuit Judge, and STAHL, Circuit Judge.

BOWNES, Senior Circuit Judge.

After more than 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. Sec. 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 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.



National Guard

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 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, --- U.S. ----, 114 S.Ct. 347, 126 L.Ed.2d 311 (1993).

The governor and his or her appointee, the Adjutant General, command the Guard in each state. See, e.g., P.R.Laws Ann. tit. 25, Secs. 2058-2059; see also 32 U.S.C. Sec. 314. 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. Sec. 110. States that fail to comply with federal regulations risk forfeiture of federal funds allocated to organize,

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equip, and arm state Guards. Id. Secs. 101, 107, 108, 501; Knutson, 995 F.2d at 767.

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. Secs. 261, 269, 8079, 8261; 32 U.S.C. Secs. 101, 301; Perpich v. Department of Defense, 496 U.S. 334, 345-46, 110 S.Ct. 2418, 2425, 110 L.Ed.2d 312 (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. Sec. 709. Technicians must maintain membership in the state Guard to remain qualified for federal employment. Id.

Plaintiff's Separation from Service

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 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 p 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 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.


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: whether the lack of a hearing upon his discharge violated ANGR 39-10 and his right to procedural due process; whether ANGR 39-10 conflicted with Defense Department policy; whether ANGR 39-10 violated his right to equal protection; and whether he was entitled to a hearing before a medical board.

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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 p 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 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...

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