801 F.2d 1135 (9th Cir. 1986), 85-2697, Sebra v. Neville

Docket Nº:85-2697.
Citation:801 F.2d 1135
Party Name:Major Nelson SEBRA, Plaintiff-Appellant, v. William NEVILLE, 144th FIW Commander, California Air National Guard; Willard Shank, Adjutant General, California National Guard; Robert Thrasher, Assistant Adjutant General, California National Guard, Defendants-Appellees.
Case Date:October 03, 1986
Court:United States Courts of Appeals, Court of Appeals for the Ninth Circuit
 
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Page 1135

801 F.2d 1135 (9th Cir. 1986)

Major Nelson SEBRA, Plaintiff-Appellant,

v.

William NEVILLE, 144th FIW Commander, California Air

National Guard; Willard Shank, Adjutant General, California

National Guard; Robert Thrasher, Assistant Adjutant

General, California National Guard, Defendants-Appellees.

No. 85-2697.

United States Court of Appeals, Ninth Circuit

October 3, 1986

Argued and Submitted Aug. 13, 1986.

Page 1136

Barry J. Bennett, Joby Dupuis, Bennett & Sharpe, Fresno, Cal., for plaintiff-appellant.

James White, Asst. U.S. Atty., Fresno, Cal., Paul Dobson, Asst. Atty. Gen., Sacramento, Cal., for defendants-appellees.

Appeal from the United States District Court for the Eastern District of California.

Page 1137

Before WRIGHT, FARRIS, Circuit Judges, and RHOADES, [*] District judge.

FARRIS, Circuit Judge:

Major Nelson Sebra appeals from the district court's order denying his application for a preliminary injunction enjoining the California National Guard from transferring him from a Fresno base to a Riverside base. He also appeals from the district court's grant of summary judgment to the three superior officers who Sebra alleges were responsible for his transfer. Sebra sued the three superior officers, alleging due process and first amendment violations, a violation of 42 U.S.C. Sec. 1983, and a violation of National Guard regulations governing investigations of National Guard members.

I.

Sebra serves in the California Air National Guard as a dual status employee. He holds a part-time military position at the rank of Major, and he is employed as a full-time civil service flight instructor. At the time he filed suit, Sebra was stationed at the CANG base in Fresno, where he had spent most of his eighteen years with the CANG.

In January 1984, an official Board of Inquiry began to investigate alleged mismanagement at the Fresno base. Sebra contends that the investigation was rumored at the time to have been directed at the base commander, a man whom Sebra had outspokenly supported. Sebra alleges that although he was questioned about his relationship with the base commander, he was not told that he was a subject of the investigation. Sebra contends that the investigation violated applicable National Guard regulations, specifically regulations providing that National Guard members have a right 1) to be aware of investigations directed at them and 2) to respond to allegations made against them.

In March 1984, the Board of Inquiry issued a report and recommended that Sebra be given a written reprimand. This recommendation was not disclosed to Sebra at that time. The base commander who had been under investigation left the Fresno base in July 1984.

In April 1985, William Neville, the new base commander, told Sebra that he was being transferred to March Air Force Base in Riverside. According to Sebra, Neville gave no specific grounds for the transfer, except to say that the transfer was "punitive" and that Sebra should learn not to place all of his allegiance in one person. The executive officers of the California National Guard, Adjutant General Shank and Assistant Adjutant General Thrasher, accepted Neville's recommendation of Sebra's transfer and implemented the transfer order.

Neville, Shank, and Thrasher contend that after the report of the Board of Inquiry and after the base commander who had been under investigation left in July 1984, the commanding officers at the Fresno base received a wide variety of negative comments regarding Sebra's performance. Neville was twice asked, in August 1984 and in April 1985, what his recommendation was concerning Sebra's status. On the first occasion, Neville requested time to observe and evaluate Sebra. On the second occasion, after a two or three week period of deliberation, Neville recommended that Sebra be transferred.

At no point during the chain of events leading up to Neville's recommendation was Sebra given an opportunity to review the allegations against him and to respond to the Board of Inquiry's findings respecting those allegations. At the time the transfer decision was made, Sebra was still unaware that the Board of Inquiry report had focused in part on him.

On May 7, 1985, Sebra received written notice that he was being transferred in his

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civilian capacity to the Riverside base. Approximately four months later, on September 5, 1985, Sebra received his military reassignment from the Fresno base to the Riverside base.

In May 1985, approximately one month after receiving the civilian transfer order, Sebra filed suit in the Eastern District of California. He alleged that Neville, Shank, and Thrasher had abridged his due process and first amendment association rights, in violation of 42 U.S.C. Sec. 1983. In September 1985, Sebra moved to amend his complaint so as to include, as an alternative theory of liability, the allegation that by failing to inform Sebra at the time of the Board of Inquiry investigation that the investigation was partly focused on Sebra, and by failing to give Sebra an opportunity to respond to the allegations against him, Neville, Shank, and Thrasher violated applicable National Guard regulations. The district court granted this motion on October 11, 1985.

Hearings were held on October 10 and 11, 1985. After oral argument, but before the full hearing, the district court granted Neville's motion to dismiss. The court granted the motion to dismiss on the express grounds that Neville was immune from a suit for damages, and that Neville was not empowered to provide the remedy sought by Sebra in his application for injunctive relief because Neville lacked the authority to rescind the challenged transfer order. The court then allowed Sebra to present evidence and testimony with respect to Shank and Thrasher in support of his application for a preliminary injunction and in support of his allegations of constitutional violations in contravention of Sec. 1983, and of violations of applicable National Guard regulations. The court denied the application for injunctive relief and granted summary judgment for Shank and Thrasher. The court declared orally that the transfer decision did not represent an "adverse" action, that there was no connection between the investigation and the transfer, and that the case represented a non-justiciable military dispute.

II.

We review both the dismissal of Neville and the grant of summary judgment de novo. In reviewing the dismissal, we consider all allegations of material fact in the light most favorable to the non-moving party. North Star International v. Arizona Corp. Commission, 720 F.2d 578, 580 (9th Cir.1983). We will affirm the dismissal only if there is no set of facts which would give Sebra a claim upon which relief could be granted. Halet v. Wend Investment Co., 672 F.2d 1305, 1309 (9th Cir.1982). In reviewing the summary judgment, we view all evidence and inferences in the light most favorable to the non-moving party in order to determine if there is a genuine dispute as to a material fact, and whether the moving party is entitled to judgment as a matter of law. Water West, Inc. v. Entek Corp., 788 F.2d 627, 628-29 (9th Cir.1986). We review de novo the correctness of the legal standard which the district court applied in denying Sebra's application for a preliminary injunction. Hartikka v. United States, 754 F.2d 1516, 1518 (9th Cir.1985). We review the district court's application of that standard under an abuse of discretion standard. Id.

III.

Neville's Dismissal.

We affirm the dismissal of Neville. As the Commander of the Fresno base, Neville lacked the authority to transfer Sebra or to rescind the transfer. The authority to employ and to administer National Guard technicians is vested in the adjutant general of each state. See National Guard Technicians Act of 1968, 32 U.S.C. Sec. 709(c) (1982). See also California National Guard v. F.L.R.A., 697 F.2d 874, 877 (9th Cir.1983) (the adjutant general has the authority to make decisions relating to the employment, administration, and discipline of National Guard technicians); Montana Chapter of Association of Civilian Technicians, Inc. v. Young 514 F.2d 1165, 1166 (9th Cir.1975) (same). Neville's lack of authority to order the transfer or to

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rescind it precludes Sebra from obtaining injunctive relief against him. Because Neville had no involvement with the Board of Inquiry investigation which allegedly violated the National Guard regulations governing investigations, and because there is no other basis for Sebra's claim against Neville, the district court did not err in dismissing that claim.

IV.

Denial of Preliminary Injunction.

We affirm the denial of the preliminary injunction. Hartikka v. United States, 754 F.2d 1516, 1518 (9th Cir.1985), cited by both parties, is controlling. In Hartikka a captain in the U.S. Air Force with a history of intoxication was discharged "under honorable conditions," a less than "honorable" discharge. We reversed the district court's grant of a preliminary injunction, holding that the test for injunctive relief is much more stringent for a government military employee than the normal test for an injunction. We held that Hartikka's hardship from his discharge "under honorable conditions" was not severe enough to warrant an injunction, especially when weighed against the hardship to the military of judicial scrutiny of every military personnel decision.

The fact that Sebra is a dual status employee who performs both civilian and military functions for CANG, whereas Hartikka was an Air Force captain whose duties...

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