Christoffersen v. Washington State Air Nat. Guard

• Decision Date: 31 August 1988
• Docket Number: No. 85-4315,85-4315
• Citation: 855 F.2d 1437
• Parties: Alfred P. CHRISTOFFERSEN; William J. Gibson; Richard F. Main; and John R. Warn, Plaintiffs-Appellants, v. WASHINGTON STATE AIR NATIONAL GUARD; The Adjutant General of Washington State, Major General George Coates; Major General Robert J. Collins; The Washington State Treasurer, Robert S. O'Brien, Defendants-Appellees.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 1437

855 F.2d 1437

Alfred P. CHRISTOFFERSEN; William J. Gibson; Richard F Main; and John R. Warn, Plaintiffs-Appellants, v. WASHINGTON STATE AIR NATIONAL GUARD; The Adjutant General of Washington State, Major General George Coates; Major General Robert J. Collins; The Washington State Treasurer Robert S. O'Brien, Defendants-Appellees.

No. 85-4315.

United States Court of Appeals Ninth Circuit.

Argued and Submitted Aug. 7, 1986.

Decided Aug. 31, 1988.

Charles Matthew Anderson, Winston & Cashatt, Spokane, Wash., for plaintiffs-appellants.

John E. Lamp, U.S. Atty., and James R. Shively, Asst. U.S. Atty., Spokane, Wash., Lt. Col. Guy J. Sternal, Staff Judge Advocate, USAF, McCord AFB, Washington, D.C.; Ceil Holuk, Asst. Atty. Gen., Olympia, Wash., for defendants-appellees.

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

Before POOLE, NORRIS and BEEZER, Circuit Judges.

POOLE, Circuit Judge:

Appellants are four former officers and civilian technicians of the Washington State Air National Guard (the Guard, or Washington Guard) who were selected for "nonretention" in the Guard by state Adjutant General Robert Collins pursuant to Air National Guard Regulation (ANGR) 36-06. They were subsequently terminated as federal civil servants. Appellants brought this action under 42 U.S.C. Sec. 1983 against General Collins and the Guard claiming that the decisions not to retain them were based on personal animus and violated their rights to freedom of speech and procedural due process. Appellants also argued that ANGR 36-06 is not authorized by statute, was improperly promulgated, and denies them due process and equal protection. Pursuant to a court order, appellants joined the United States, the Department of Defense, the Department of the Air Force, and the National Guard Bureau (collectively "federal appellees") to answer the challenge to the regulations.

The district court granted summary judgment in favor of General Collins and the Guard, holding that Chappell v. Wallace, 462 U.S. 296, 103 S.Ct. 2362, 76 L.Ed.2d 586 (1983), precludes a suit for damages against a military commander and that appellants' claims are also barred by the military non-interference doctrine. After the federal appellees were joined, the district court also granted summary judgment in their favor, rejecting appellants' challenges to the regulation. We affirm.

FACTS

Each appellant had a dual status as an officer of the Guard and as a federal civilian technician. By statute, each was required to maintain membership in the Guard as a condition for retaining his civil service position. 32 U.S.C. Sec. 709(b). Each appellant had completed over 20 years of military service in July 1978, and therefore had qualified for a military retirement pension at age 60. 10 U.S.C. Sec. 1331(a).

Under ANGR 36-06, p 2, all Air National Guard officers with over 20 years of qualifying military service must be reviewed annually for consideration of retention in, or separation from, their state National Guard. This regulation was developed by the National Guard Bureau, an organization which serves as the channel of communication between the Department of Defenseand Under the Vitalization Program, an Advisory Board appointed by the state Adjutant General annually reviews every eligible officer to "evaluat[e] the future benefits that can be expected to accrue to the Air National Guard from [his] continued service." ANGR 36-06, p 10d; see id. p 2a. The regulation lists a number of criteria, related both to the qualifications of the individual and the needs of the Air National Guard, to be considered by the Advisory Board in recommending retention or separation of each officer. Id. p 10e. One factor is the officer's status with regard to technician retirement eligibility. Id. p 10e(4). The state Adjutant General is not bound by recommendations of the Advisory Board and may approve or disapprove any specific recommendation. Id. Sec. 11b(1).

the various state National Guards, 10 U.S.C. Sec. 3040, and was issued by order of the Secretary of the Air Force. The regulation establishes a "Vitalization Program" for the state National Guards which is designed to ensure combat readiness and inhibit stagnation in the senior grades by providing for the advancement of qualified young officers into positions of greater responsibility. ANGR 36-06, p 2; see Penagaricano v. Llenza, 747 F.2d 55, 56 (1st Cir.1984).

The gravamen of appellants' complaint is that they were the victims of a vindictive discharge motivated by their participation in the so-called "human reliability incident." According to appellants, appellant Main, who was then the immediate commander in charge of implementing a nuclear weapons safety program known as the Human Reliability Program, decided upon a temporary disqualification from nuclear missions of two officers whom he suspected of drug trafficking. Notice of this action was prepared by Main, but not forwarded by the Guard to the Air Defense Command (ADC) as required. When Main resisted attempts by Washington Guard Headquarters to have him change his mind, Collins was installed as Main's Squadron Commander. Collins assigned himself to Main's position as immediate commander, but ADC countermanded the assignment because Collins was not a federal employee. The Guard then ordered Main to restore the disqualified officers to flight duty with make-up time for lost flight hours.

Meanwhile, ADC was unaware of Main's temporary disqualification of the two officers. On March 22, 1974, Main and his assistant, appellant Christoffersen, told an ADC Inspector General of the officers' disqualification and of the Washington Guard's efforts to compel their reinstatement. On March 24, 1974, all nuclear weapons within Washington State were removed from Washington Guard control. On April 20, 1974, all nuclear missions were removed from National Guard units nationwide.

The Guard ordered investigations of the actions taken by Main and Christoffersen regarding the officers' disqualification. Appellant John Warn sat on the investigatory boards which sustained Main and Christoffersen. Appellant William Gibson, Unit Commander, supported Main and Christoffersen, and gave them outstanding ratings.

In 1978, an Advisory Board convened to evaluate officers in the Washington Guard and specifically selected each appellant for retention. However, General Collins, now Adjutant General of the Guard, as the reviewing officer, declined to adopt the Advisory Board's recommendations and, instead, approved nonretention of all appellants. As a result of Collins' action, the National Guard Bureau withdrew federal recognition from them and each appellant lost his civilian federal technician position. 32 U.S.C. Sec. 709(e); ANGR 36-06, paragraphs 11b(2), 11c(1). Appellants were discharged from the Washington Guard upon withdrawal of their federal recognition and were transferred to the inactive United States Air Force Reserve. 10 U.S.C. Sec. 8352(b); ANGR 36-06, p 11c. They were advised in writing that Collins' decisions were nonreviewable.

Collins gave no reasons for nonretention, but later acknowledged that appellants' performance as technicians was not a consideration. Appellants believe Collins was motivated by personal vindictiveness based on the human reliability incident that occurred

before he was appointed state Adjutant General.

PROCEEDINGS BELOW

Appellants originally sued in the United States Court of Claims for reinstatement, back pay, benefits, and other damages based on their wrongful termination as civilian technicians. The court granted summary judgment for the United States holding that, because Guardsmen not in active federal service are state employees, appellants failed to state a claim on which relief could be granted. Christoffersen v. United States, 230 Ct.Cl. 998 (1982).

Appellants then pursued their claims in the district court under 42 U.S.C. Sec. 1983 against the Washington Guard and Collins. Appellants alleged that they were "involuntarily retired" in violation of their rights under the First Amendment and to procedural due process. Appellants also challenged the validity of ANGR 36-06. On March 31, 1984, the district court granted the state appellees' motion for summary judgment on the issue of liability under section 1983. However, the court refused to dismiss the action and directed appellants to join whatever federal parties would be necessary to resolve the challenges to ANGR 36-06. Accordingly, the federal appellees were joined. On October 11, 1985, after additional discovery, the district court granted the government's motion for summary judgment, ruling that ANGR 36-06 had been properly promulgated and applied. This appeal followed. We heard oral argument on August 7, 1986. On December 2, 1986, submission of this case was vacated, and we ordered all parties to submit supplemental briefs focusing on two questions: (1) whether the appellants' participation in the so-called "human reliability incident" involved the exercise of public authority, as distinguished from "whistleblowing;" and (2) the extent to which the First Amendment protects, as speech, the exercise of public authority by a government official. The parties made their submissions which we considered. On January 5, 1987 we ordered the case resubmitted, and we now affirm the judgments of the district court.

DISCUSSION

A district court order granting summary judgment is reviewed de novo. Sebra v. Neville, 801 F.2d 1135, 1138 (9th Cir.1986). This court need only decide whether there are genuine issues of material fact, whether the substantive law was properly applied, and whether the proponents of the motion were entitled to judgment. Id.

I.

In determining whether a civilian court should review a serviceman's allegation of deprivation of constitutional rights by the military, this Circuit has adopted the multi-factored analysis first outlined in Mindes...