426 U.S. 312 (1976), 75-95, Tennessee v. Dunlap

Docket Nº:No. 75-95
Citation:426 U.S. 312, 96 S.Ct. 2099, 48 L.Ed.2d 660
Party Name:Tennessee v. Dunlap
Case Date:June 10, 1976
Court:United States Supreme Court
 
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Page 312

426 U.S. 312 (1976)

96 S.Ct. 2099, 48 L.Ed.2d 660

Tennessee

v.

Dunlap

No. 75-95

United States Supreme Court

June 10, 1976

Argued March 22, 1976

CERTIORARI TO THE UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

Syllabus

The National Guard Technicians Act of 1968 provides that a National Guard technician, who is a full-time civilian employee of the Guard, must be a member of the Guard. 32 U.S.C. § 709(b). Employment as a technician may be terminated upon separation from the Guard, § 709(e)(1); for failure to meet military security requirements, § 709(e)(2); or "for cause," § 709(e)(3).

Held: Where respondent's employment as a technician was terminated under § 709(e)(1) when he was separated from the Guard upon expiration of his enlistment, § 709(e)(3)'s requirement of "cause" has no application, and hence § 709(e)(3) cannot provide the foundation for a claim that the termination of respondent's employment and the allegedly arbitrary refusal to reenlist him violated due process. Pp. 315-316.

514 F.2d 130, reversed.

MARSHALL, J., delivered the opinion for a unanimous Court.

MARSHALL, J., lead opinion

MR. JUSTICE MARSHALL delivered the opinion of the Court.

Respondent brought this action in the United States District Court for the Eastern [96 S.Ct. 2100] District of Tennessee, challenging the termination of his employment as a technician

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with the Tennessee Air National Guard as violative of the Due Process Clause of the Fourteenth Amendment. Petitioners are the defendants below -- the State of Tennessee and its Governor, the Tennessee Air National Guard, and various officials of the Tennessee Air National Guard.

The National Guard Technicians Act of 1968 provides generally that a National Guard technician, who is a full-time civilian employee of the National Guard, must be a member of the National Guard,1 and that a technician who is separated from the Guard "shall be promptly separated from his technician employment." 32 U.S.C. §§ 709(b), (e)(1). The same section of the Act provides that "a technician may, at any time, be separated from his technician employment for cause." § 709(e)(3). O n December 8, 1972, respondent was discharged from the Tennessee Air National Guard for the stated reason that his term of enlistment had expired. Five days later, respondent was notified by his commander that his employment as a technician would be terminated in 30 days because he was no longer a member of the Guard.

Respondent concedes the validity of the statutory requirement that a technician maintain his status as a member of the National Guard. Accordingly, the focus of his claims is petitioners' refusal to permit his reenlistment. In his complaint, respondent alleged that, prior to December

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8, he had attempted, without success, to reenlist in the Guard. He further alleged that his request for a hearing before the board charged with making a recommendation on his reenlistment was denied, that he was never supplied a copy of any charges against him, and that the only reason he ever received for the refusal of his requested reenlistment was a general one that it was not in the best interest of the Guard to allow him to reenlist. In fact, respondent alleged, the reason he was denied reenlistment was to effect his discharge as a technician without the necessity of affording him the administrative recourse he would have had if he had been terminated as a technician directly and "for cause" under § 709(e)(3). Liberally construed, the complaint then asserted three constitutional claims: (1) that the mechanism by which respondent was refused reenlistment denied him procedural due process; (2) that the "alleged discretion" vested in his commander to decide whether his reenlistment was in the best interest of the Guard does not comport with due process because of the lack of "any objective or ascertainable standards or criteria" to guide the exercise of that discretion; and (3) that the denial of reenlistment was arbitrary...

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