540 F.3d 1187 (10th Cir. 2008), 06-6136, Hanson v. Wyatt

Docket Nº:06-6136, 06-6204.
Citation:540 F.3d 1187
Party Name:Eric A. HANSON, Plaintiff-Appellee/ Cross-Appellant, v. Major General Harry M. WYATT, III, in his official capacity as the Adjutant General, State of Oklahoma, Defendant-Appellant/ Cross-Appellee.
Case Date:September 10, 2008
Court:United States Courts of Appeals, Court of Appeals for the Tenth Circuit

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540 F.3d 1187 (10th Cir. 2008)

Eric A. HANSON, Plaintiff-Appellee/ Cross-Appellant,


Major General Harry M. WYATT, III, in his official capacity as the Adjutant General, State of Oklahoma, Defendant-Appellant/ Cross-Appellee.

Nos. 06-6136, 06-6204.

United States Court of Appeals, Tenth Circuit.

September 10, 2008

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[Copyrighted Material Omitted]

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Kevin L. McClure, Assistant Attorney General, Oklahoma Attorney General's Office, Oklahoma City, OK, for Defendant-Appellant/Cross-Appellee.

Timothy D. DeGiusti (James E. Warner, III, with him on the briefs), of Holladay, Chilton & DeGiusti, PLLC, Oklahoma City, OK, for Plaintiff-Appellee/Cross-Appellant.

Before BRISCOE, HARTZ, and GORSUCH, Circuit Judges.

HARTZ, Circuit Judge.

Colonel Eric A. Hanson, who had been removed from the Oklahoma Army National Guard, filed suit against Major General Harry M. Wyatt III in his official capacity as Adjutant General for the State of Oklahoma, seeking reinstatement to his former position plus back pay and retirement points. His claim arises from an alleged violation by a selective retention board (SRB) of a federal regulation governing its procedures. The SRB recommended that Col. Hanson not be retained as a Colonel. Col. Hanson appealed to Maj. Gen. Wyatt on the ground that the SRB had violated the regulation. After that appeal was denied, Col. Hanson sought relief from the Army Board for Correction of Military Records (ABCMR), which rejected his claim. He then filed this suit in the United States District Court for the Western District of Oklahoma.

Col. Hanson contends (1) that the SRB violated an Army National Guard regulation by reviewing his status while he was simultaneously sitting on another SRB and (2) that this violation infringed his right to constitutional due process. The district court decided that the SRB violated the regulation and granted Col. Hanson summary judgment, ordering his reinstatement with retirement points. Maj. Gen. Wyatt has appealed, contending, among other things, that “[t]he Military administrative remedies and appeal process was [Col. Hanson's] exclusive remedy in this case." Aplt. Br. at 9 (emphasis omitted) We reverse.

As we discuss below, claims analogous to Col. Hanson's are permitted in federal court. The United States Supreme Court has recognized two “alternative remedies available to a servicemember demanding to be kept on the rolls." Clinton v. Goldsmith, 526 U.S. 529, 537, 119 S.Ct. 1538, 143 L.Ed.2d 720 (1999). The servicemember

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can seek review of a decision by the ABCMR under the Administrative Procedure Act (APA), 5 U.S.C. § 557 et seq., or can sue the United States under the Tucker Act, 28 U.S.C. § 1491, or the Little Tucker Act, 28 U.S.C. § 1346(a)(2). See Clinton, 526 U.S. at 539-40, 119 S.Ct. 1538. We hold, however, that there was no proper basis for this suit for violation of the National Guard regulation. We need not decide whether Col. Hanson may have had some judicial remedy in another court (such as Oklahoma state court) or against another party (such as the United States or the Secretary of the Army). The district court issued its judgment without identifying a cause of action that would permit Col. Hanson to seek relief in federal court against Maj. Gen. Wyatt for violation of the regulation, and Col. Hanson has not remedied that omission on appeal. We also hold that Col. Hanson has not stated a claim for denial of constitutional due process.


The National Guard is a state/federal hybrid. Our Constitution grants Congress authority

[t]o 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 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.16. The National Guard is composed of those portions of state militias that are “federally recognized." 32 U.S.C. § 101(4). The federal government recognizes a “unit or organization of the National Guard," id. § 307(a)(1), and sets standards for recognition of individual officers, id. 307(a)(2), (3). Thus, members of the National Guard hold dual enlistments in both a state militia (a State national guard) and a federal force (the National Guard of the United States). See Perpich v. Dep't of Def., 496 U.S. 334, 345, 110 S.Ct. 2418, 110 L.Ed.2d 312 (1990). “In the latter capacity they bec[o]me a part of the Enlisted Reserve Corps of the Army, but unless and until ordered to active duty in the Army, they retain [ ] their status as members of a separate State Guard unit." Id.

Each state has an adjutant general, whose duties are set by state law. See32 U.S.C. § 314(a). The Governor of Oklahoma is the Commander in Chief of the state's military department, “with the Adjutant General as the executive and administrative head thereof." Okla. Stat. Ann tit. 44, § 21; see id. § 26 (duties of adjutant general). The Oklahoma militia is composed of able-bodied citizens (and persons who have declared their intent to become citizens) between the ages of 17 and 70, and is divided into three classes: “The National Guard, the Oklahoma State Guard, and the Unorganized Militia." Id. § 41. An officer may be discharged by the Governor for unfitness upon the recommendation of a three-member efficiency board convened by the Governor. Id. § 44.

Col. Hanson joined the Oklahoma Army National Guard in 1980. As a colonel who had served more than 20 years, he was subject in 2003 to review by an SRB. The regulation governing SRBs is the Department of the Army's National Guard Regulation (NGR) 635-102. See10 U.S.C. § 14704(c) (authorizing such regulations). The goals of the review process are:

a. Ensuring that only the most capable officers are retained beyond 20 years of qualifying service for assignment to the comparatively few higher level command and staff positions.

b. Providing career incentive.

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c. Ensuring an opportunity for advancement to the higher grades at the peak years of an officer's effectiveness.

NGR 635-102(3). The SRB makes recommendations to the state adjutant general, who is empowered to overturn a nonretention recommendation. NGR 635-102(5)(j)(1)(b). When a nonselected officer loses federal recognition, the officer can no longer serve in the Army National Guard but is transferred to the United States Army Reserve. See10 U.S.C. § 12213(b); NGR 635-102(7)(a).

“[T]o be reinstated as an officer of the [Army] National Guard, an officer must pursue remedies both within [the Army National Guard of the United States] and within the [Army] National Guard of his state." Penagaricano v. Llenza, 747 F.2d 55, 57 (1st Cir.1984), overruled in part on other grounds by Wright v. Park, 5 F.3d 586, 590-91 (1st Cir.1993). For the federal component of relief, the officer may seek review by a civilian Board for Correction of Military Records (BCMR) established for one of the Services. See10 U.S.C. § 1552. As stated in 32 C.F.R. § 581.3(a), “[T]he policies and procedures for correction of military records by the Secretary of the Army, acting through the Army Board for Correction of Military Records (ABCMR)" are set forth in 32 C.F.R. § 581.3. The language “correction of military records" may be somewhat misleading, because the authority of BCMRs goes well beyond correcting paperwork. The ABCMR “can reinstate [the officer] in a comparable active federal reserve status, restore his pay and order compensatory back pay." Penagaricano, 747 F.2d at 57; see10 U.S.C. § 1552(c); Christoffersen v. Washington State Air Nat'l Guard, 855 F.2d 1437, 1442 (9th Cir.1988); Thornton v. Coffey, 618 F.2d 686, 692-93 (10th Cir.1980). It cannot, however, “direct his reinstatement in the National Guard of the state." Penagaricano, 747 F.2d at 57. That would be a matter for the state adjutant general.

In April 2003 an SRB recommended Col. Hanson for nonretention. Relying on introductory language in NGR 635-102 stating that it “does not apply to ... voting members of current selection boards," he appealed to Adjutant General Wyatt on the ground that he had been serving on an SRB when he was recommended for nonretention. Maj. Gen. Wyatt denied the appeal. Col. Hanson sought relief from the ABCMR, but the decision of the Board denied relief because “[t]he evidence presented d[id] not demonstrate the existence of a probable error or injustice." J.App. at 23. The Board's decision noted the following regarding the consequences of the nonselection decision:

The [adjutant general] ... advised that the non-selection action taken by the SRB only withdrew [Col. Hanson's] State appointment in the [Oklahoma Army National Guard]. [Col. Hanson] still retains his Federal rank and status and may, at his request, transfer to the Retired Reserve. However, if [Col. Hanson] does not select that option, his orders will indicate transfer to Army Reserve Personnel Center with assignment to the United States Army Control Group (Reinforcement).

J.App. at 21. Col. Hanson then filed the present suit. The district court held that the SRB's action violated NGR 635-102 and that the nonretention decision was therefore invalid; it ordered Col. Hanson's reinstatement with retirement points.


Col. Hanson contends that there was no bar to the district court's granting relief based on the violation of NGR 635-102. Maj. Gen. Wyatt counters, however, that Col. Hanson's sole avenue of relief is through the military's internal administrative

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and appellate procedures. Maj. Gen. Wyatt's brief focuses on court decisions denying various claims implicating military affairs. In these cases the plaintiff invoked a statute or a constitutional doctrine that would appear on its face to encompass the plaintiff's claim, but the court carved out an...

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