295 F.3d 1082 (10th Cir. 2002), 00-8039, Nelson v. Geringer

Docket Nº:00-8039, 00-8093.
Citation:295 F.3d 1082
Party Name:Barbara Jenenne NELSON, Plaintiff-Appellee, v. Jim GERINGER, individually and in his capacity as Governor of the State of Wyoming; ED BOENISCH, in his official capacity as Adjutant General of the Wyoming National Guard; The State of Wyoming, Defendants-Appellants. National Guard Association of the United States, Amicus Curiae. Page 1083 Howard Arth
Case Date:July 03, 2002
Court:United States Courts of Appeals, Court of Appeals for the Tenth Circuit
 
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Page 1082

295 F.3d 1082 (10th Cir. 2002)

Barbara Jenenne NELSON, Plaintiff-Appellee,

v.

Jim GERINGER, individually and in his capacity as Governor of the State of Wyoming; ED BOENISCH, in his official capacity as Adjutant General of the Wyoming National Guard; The State of Wyoming, Defendants-Appellants.

National Guard Association of the United States, Amicus Curiae.

Page 1083

Howard Arthur Dillon, Jr., also known as Art Dillon, Plaintiff-Appellee,

v.

Jim Geringer, in his official capacity as Governor and Commander in Chief of the Wyoming National Guard; State of Wyoming, Defendants-Appellants.

National Guard Association of the United States, Amicus Curiae.

Nos. 00-8039, 00-8093.

United States Court of Appeals, Tenth Circuit

July 3, 2002

Page 1084

Richard Rideout, Special Assistant Attorney General (Gay Woodhouse, Attorney General; John W. Renneisen, Deputy Attorney General, with him on the briefs in both cases; and Francisco L. Romero, Senior Assistant Attorney General, with him on the briefs in Nelson only), State of Wyoming, Cheyenne, WY, for Defendants-Appellants.

Patrick E. Hacker (Gregory P. Hacker with him on the briefs) of Patrick E. Hacker, P.C., Cheyenne, WY, for Plaintiffs-Appellees.

James J. Hughes, Jr. of Bricker & Eckler, LLP, Columbus, OH; and Bruce S. Asay of Associated Legal Group, LLC, Cheyenne, WY, filed a brief in each case for Amicus Curiae.

Before SEYMOUR and BRISCOE, Circuit Judges, and OWEN,[*] District Judge.

SEYMOUR, Circuit Judge.

This opinion addresses the cases of two plaintiffs, Barbara Jenenne Nelson and Howard Arthur Dillon, who were dismissed from their positions as Assistant Adjutant Generals of the Wyoming National Guard. The underlying facts and claims brought by plaintiffs are substantially the same for both cases, so we consolidate them for purposes of appeal.

Each plaintiff brought suit in district court under 42 U.S.C. § 1983 after being removed from the position of Assistant Adjutant General of the Wyoming National Guard for failing to meet the state's newly enacted residency requirement for that position. The district court held that the residency requirement violated the Privileges and Immunities Clause, granted summary judgment for plaintiffs, and ordered them reinstated. The state of Wyoming appeals and we affirm.

I

There are two Assistant Adjutant General (AAG) positions in the Wyoming National Guard, one for the Wyoming Air National Guard and one for the Wyoming Army National Guard.1 The AAGs are commanded by the Adjutant General, the highest ranking military officer in the state Guard, who in turn reports to the state governor. See Wy. Stat. Ann. § 19-7-103 (LexisNexis 2001).

Ms. Nelson and Mr. Dillon are residents of Colorado. Ms. Nelson has been a member

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of the Wyoming Air National Guard since April 15, 1989. In early 1995, Ms. Nelson applied to be AAG of the Wyoming Air National Guard. A military selection board for the Wyoming National Guard chose her as the best-qualified applicant, and she assumed the office on May 1, 1995. At the time relevant to this suit, fifty-one percent of the members of the Wyoming Air National Guard were nonresidents of the state, and fifty percent of its officers were nonresidents. Aplt.App. (Nelson) at 41.

In the spring of 1997, the AAG position for Commander of the Wyoming Army National Guard became vacant and Mr. Dillon was selected for the position. He assumed the office on March 12, 1998. Mr. Dillon has served in the Wyoming National Guard since 1979, having been recruited from the Colorado National Guard to join. Aplt.App. (Dillon) at 47. Approximately twenty percent of Wyoming Army National Guard members are nonresidents. ApltApp. (Nelson) at 41. In accordance with state and federal law, Ms. Nelson and Mr. Dillon were both promoted to the rank of Brigadier General. See National Guard Regulations (NGR) 600-100 (11-3); Wy. Stat. Ann. § 19-7-104.

In spring 1998, the Wyoming legislature amended state law to require that, like the Adjutant General, the two AAGs must be state residents.2 Wy. Stat. Ann. § 19-7-104. The Act became effective on July 1, 1998.

In May 1998, Wyoming State Representative Mike Massey wrote to Wyoming Attorney General William U. Hill and requested an official opinion on whether the Wyoming Constitution imposed a residency requirement for AAGs in the Wyoming National Guard, stating he realized the statute "cannot be applied retroactively."3 ApltApp. (Nelson) at 85. The Attorney General rendered an opinion in response (Opinion No. 98-007), concluding that Article 6, section 15 of the Wyoming Constitution prevented non-residents from holding AAG positions. Id. at 80.

Following the issuance of the opinion, Ms. Nelson and Mr. Dillon were both removed from their AAG positions.4 Ms.

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Nelson was removed effective September 25, 1998. Mr. Dillon was removed effective September 30, 1998. During their respective tenures as AAGs, Ms. Nelson and Mr. Dillon received acceptable performance reviews; their non-residency was not a performance issue. Since the removal of Ms. Nelson and Mr. Dillon, both AAG positions have been filled by state residents.

After she failed to obtain reconsideration of the Attorney General opinion from both the Attorney General and the Governor, Ms. Nelson brought suit under section 1983 against the state of Wyoming, the Governor, and Adjutant General Boenisch in his official capacity (collectively, the state). She claimed her removal violated the Privileges and Immunities Clause, the Commerce Clause, and her constitutional rights to travel, equal protection, and due process. She sought injunctive, declaratory, and monetary relief. Mr. Dillon brought the same claims and sought the same relief in a suit challenging his removal.

The district court granted summary judgment to Ms. Nelson and Mr. Dillon on Privileges and Immunities grounds and ordered their reinstatement without reaching the other constitutional claims presented.5 We affirm on Privileges and Immunities grounds and likewise do not address the other claims.

II

A

We review' the grant of summary judgment de novo, applying the standard used by the district court. Wolf v. PrudentialIns. Co., 50 F.3d 793, 796 (10th Cir. 1995). Summary judgment is appropriate "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue of material fact and that the moving party is entitled to a judgment as a matter of law." Fed. R.Civ.P. 56(c). In applying this standard, we view the evidence and inferences therefrom in the light most favorable to the non-moving party. If there is no genuine issue of material fact in dispute, we determine whether the district court correctly applied the substantive law. Simms v. Oklahoma ex rel. Dep't of Mental Health & Substance Abuse Servs., 165 F.3d 1321, 1326 (10th Cir. 1999).

B

Before turning to the Privileges and Immunities Clause, we first discuss the National Guard's dual role as a state and a federal entity in order to avoid significant detours into military structure and regulations at multiple points in our subsequent analysis. The discussion is based on our review of the record and relevant federal and state law, and therefore consists of undisputed fact or our legal conclusions.

The "Militia Clauses" of the United States Constitution provide:

Congress shall have Power . . . To provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrections and repel Invasions; To provide for organizing, arming, and disciplining, the Militia, and for governing such Part of them as may be employed in the Service of the United States, reserving to the States respectively, the

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Appointment of the Officers, and the Authority of training the Militia according to the discipline prescribed by Congress.

U.S. Const. art. I, § 8, cl. 15-16. The National Guard consists of the Air National Guard and the Army National Guard. 32 U.S.C. § 101(3). The National Guard was created by Congress pursuant to the Militia Clauses. See id. §§ 101(4), (6) (National Guard is "that part of the organized militia . . . that . . . has its officers appointed[ ] under the sixteenth clause of section 8, article 1, of the Constitution"); see also id. § 101(3).

For convenience, we will discuss only the Air National Guard (ANG), but the provisions we cite, or substantively identical provisions, also apply to the Army National Guard. See, e.g., 10 U.S.C. §§ 10105-07 et seq. The ANG has a dual status: it constitutes both the state national guard units that comprise it, and the Air National Guard of the United States. 10 U.S.C. §§ 10111-13. In terms of their state aspects, the ANG units are the "state" units of the nation's organized militia. 32 U.S.C. § 101(6). States are responsible for appointing officers and training national guard members according to Congressional requirements. U.S. Const. art. I, § 8, cl. 16; see also 32 U.S.C. § 501. The National Guard is available for states to use within their borders during peace time. 32 U.S.C. § 109(b). When the federally recognized ANG units are not in active federal service, they constitute the Air National Guard units of each of the several States and the United States territories. 10 U.S.C. § 10113.

Significantly, however, the Air National Guard remains a federal entity even when it is not in active federal service. The "federally recognized" state units of the ANG together constitute the Air National Guard of the United States, 32 U.S.C. § 101(7); 10 U.S.C. §§ 10112-13, which is a reserve component of the Air Force. Id. §§ 10101, 12107(b)(2). When a person enlists in the Air...

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