Wright v. Park

• Citation: 5 F.3d 586
• Decision Date: 03 August 1993
• Docket Number: No. 93-1206,93-1206
• Parties: Richard L. WRIGHT, Plaintiff, Appellant, v. Ernest C. PARK, et al., Defendants, Appellees. . Heard
• Court: United States Courts of Appeals. United States Court of Appeals (1st Circuit)

Page 586

5 F.3d 586

Richard L. WRIGHT, Plaintiff, Appellant, v. Ernest C. PARK, et al., Defendants, Appellees.

No. 93-1206.

United States Court of Appeals, First Circuit.

Heard Aug. 3, 1993.

Decided Oct. 4, 1993.

Peter A. Anderson, Bangor, ME, for appellant.

Michael M. DuBose, Asst. U.S. Atty., with whom Jay P. McCloskey, U.S. Atty., and George T. Dilworth, Asst. U.S. Atty., Portland, ME, were on brief, for appellees.

Before SELYA, CYR and BOUDIN, Circuit Judges.

SELYA, Circuit Judge.

This appeal requires us to consider whether civil rights actions can be maintained against military officers in the chain of command by persons employed under the National Guard Technician Act of 1968 (Technician Act), 32 U.S.C. Sec. 709 (1988). The district court granted summary judgment because it deemed plaintiff's claims to be nonjusticiable. See Wright v. Park, 811 F.Supp 726 (D.Me.1993). Although our reasoning differs from that of the court below, we affirm.

I. BACKGROUND

The facts, insofar as they are germane to this proceeding, are not seriously disputed. Plaintiff-appellant Richard L. Wright served from 1970 to 1990 in a dual civilian-military capacity as a technician at the Air National Guard (ANG) base in Bangor, Maine. Wearing his civilian hat, appellant served during the last three years of the period as an aircraft maintenance specialist. Wearing his military hat, he served during that same period as deputy commander for maintenance, 101st Air Refueling Wing, and as a colonel in the Maine ANG. In these positions, appellant supervised approximately 450 persons attached to the maintenance unit, including 130 technicians. His primary mission was to keep Bangor-based military aircraft in a state of combat preparedness, and to train others to do the same.

On March 2, 1990, Major General Ernest Park notified appellant of his forthcoming reassignment to the position of flight instructor. In compliance with Technician Personnel Regulation No. 15, Sec. 2-5, ¹ Park's letter informed appellant that, if he abjured reassignment, the letter itself would be deemed to operate as a 30-day termination notice. Appellant did not welcome the news: while the proposed shift in duties endangered neither his pay nor his benefits, it promised to remove him from the maintenance unit and divorce him from all supervisory responsibilities. Consequently, appellant rejected the reassignment. In due course, the threatened termination became a reality. Park relieved appellant of his duties as a civilian aircraft maintenance specialist and as deputy commander for maintenance, while leaving intact his military rank.

His several hats askew, appellant brought suit in federal district court against General Park and others presumably responsible for cashiering him. He claimed that his habitual whistleblowing-during his tenure as maintenance officer, he had filed repeated reports of safety violations, as well as a report charging General Park with the unauthorized use of military aircraft-prompted a cabal of high-ranking officers to retaliate against him and, ultimately, strip him of his job. ² His second amended complaint (the operative document for our purposes) alleges that the named defendants--Generals Park, Eremita, and Durgin, and Colonel Hessert--thereby violated the Civil Rights Act, 42 U.S.C. Secs. 1983, 1985 (1988), the federal whistleblower statute, 5 U.S.C. Secs. 2301-2302 (1988), and the state whistleblower law, 26 M.R.S.A. Secs. 831-840 (1988).

The federal district court consolidated the case with a related case. ³ On January 26, 1993, the court granted defendants' motion for summary judgment, holding in substance that the dispute concerned a nonjusticiable military controversy. SeeWright v. Park, 811 F.Supp. at 732. It reached this result by applying the analytic framework first suggested in Mindes v. Seaman, 453 F.2d 197, 201-02 (5th Cir.1971), and subsequently adopted by this court in Penagaricano v. Llenza, 747 F.2d 55, 60-61 (1st Cir.1984).

The appeal from the district court's judgment presents a pair of interrelated issues: separability and justiciability. Thus, we must make two inquiries: (1) Assuming defendants discriminated against appellant, can appellant be said to have suffered injury in his capacity as a civilian worker, independent of his military role? (2) If not, i.e., if appellant was injured, rather, in his military capacity, can his injury form the basis for a justiciable civil rights claim against the defendants (all of whom are military officers)? To complicate matters, answering the second query will require us to reexamine our governing precedent on justiciability in light of recent case law elsewhere.

II. AN OFFICER AND A GENTLEMAN

Appellant, who remains a colonel in the ANG, argues strenuously that, for purposes of this case, his civilian status may be disentangled from his military status, and that he should be free to sue for discrimination implicating the former. But this balkanization of technicians' work is belied by Congress's description of the functions that ANG technicians serve, by the unmistakable intendment of the Technician Act (the statute that Congress enacted in 1968 to regulate such personnel), and by the resulting ties that bind technicians' civilian and military roles.

The Technician Act makes technicians eligible for military employment benefits and, in so doing, seeks to improve national security by facilitating the recruitment of qualified individuals. SeeAmerican Fed'n of Gov't Employees v. FLRA, 730 F.2d 1534, 1542-47 (D.C.Cir.1984) (analyzing legislative history). The Act provides in relevant part that persons may be employed as technicians only "[u]nder regulations prescribed by the Secretary of the [relevant military branch]...." 32 U.S.C. Sec. 709(a). Each such technician "shall, while so employed, be a member of the National Guard and hold the military grade specified by the Secretary concerned for that position." 32 U.S.C. Sec. 709(b). In substance, then, the Technician Act evidences Congress's intention that technicians, while retaining their positions as civil employees outside the competitive civil service, will serve simultaneously as employees of the appropriate military department, subject to its regulation.

It is axiomatic that the National Guard is military in character. See H.R.Rep. No. 1823, 90th Cong.2d Sess., reprinted in 1968 U.S.C.C.A.N. 3318, 3319 (recognizing the "military characteristics of the National Guard"). We think it follows that technicians are martial in character. Indeed, under the Technician Act's composite regime, technicians are considerably more than nominal members of the military establishment. In referring to the National Guard's mission, Congress termed it "essential" as a matter of "military policy" that "the strength and organization of the [National Guard] as an integral part of the first line defenses of the United States be maintained and assured at all times." 32 U.S.C. Sec. 102. Because National Guard technicians serve as the Guard's support staff and are, in fact, those whose job it is to maintain and assure the Guard's strength and organization, they are indispensable to this nation's defense. See, e.g., 32 U.S.C. Sec. 709(a) (assigning to technicians such distinctively military tasks as "(1) the administration and training of the National Guard; and (2) the maintenance and repair of supplies issued to the National Guard or the armed forces"). Nor do technicians merely perform tasks that have a military ring to them; the record reflects that fully one-half of appellant's outfit, the 101st Air Refueling Wing, served in Operation Desert Storm or Desert Shield.

Given this mise-en-scene, it is unsurprising that, no matter the context, every court having occasion closely to consider the capacity of National Guard technicians has determined that capacity to be irreducibly military in nature. See, e.g.,Stauber v. Cline, 837 F.2d 395, 399 (9th Cir.), cert. denied, 488 U.S. 817, 109 S.Ct. 55, 102 L.Ed.2d 33 (1988); Illinois Nat'l Guard v. FLRA, 854 F.2d 1396, 1398 (D.C.Cir.1988); American Fed'n, 730 F.2d at 1545-46; New Jersey Air Nat'l Guard v. FLRA, 677 F.2d 276, 279 (3d Cir.), cert. denied, 459 U.S. 988, 103 S.Ct. 343, 74 L.Ed.2d 384 (1982); Nesmith v. Fulton, 615 F.2d 196, 200-01 (5th Cir.1980). We, too, conclude that, since National Guard technicians' positions are encompassed within a military organization and require the performance of work directly related to national defense, such positions are themselves military in nature.

Appellant strives valiantly to elude the grasp of this logic. He says that his situation is different; it falls outside the mine run of previous cases because he was ousted from his civilian employment without being terminated from his military post. This asseveration cannot withstand scrutiny.

For one thing, appellant mischaracterizes his own situation: though he retains his commission as a colonel in the ANG, the injury of which he complains has had repercussions beyond the loss of his civilian mantle. He also has been dismissed from the post of deputy commander for maintenance--a post which he admits is military in nature. For another thing, appellant's self-portrait, even as he has painted it, is not an original. In Nesmith, for example, the plaintiff lost his civilian post prior to the eventual loss of his military post. Nesmith, 615 F.2d at 197. The court took care to analyze the initial dismissal independently, yet reached the same conclusion as other courts that have considered the question: an ANG technician's two identities are not scissile. Seeid. at 201; see alsoStauber, 837 F.2d at 399 (holding that an injury occurring in the course of plaintiff's civilian employment as an ANG technician arose incident to military service); cf. New Jersey Air Nat'l Guard, 677 F.2d at 279 (holding that the Technician Act grants adjutants general final discretion relating to discipline and discharge of...