Diraffael v. Cal. Army Nat'l Guard

Citation247 Cal.Rptr.3d 692,35 Cal.App.5th 692
Decision Date23 May 2019
Docket NumberB284859
CourtCalifornia Court of Appeals Court of Appeals
Parties Robert DIRAFFAEL, Plaintiff and Appellant, v. CALIFORNIA ARMY NATIONAL GUARD, et al., Defendants and Respondents.

Robert DiRaffael, in pro. per., for Plaintiff and Appellant.

Xavier Becerra, Attorney General, Chris A. Knudsen, Assistant Attorney General, Kenneth C. Jones and Eric Fox, Deputy Attorneys General, for Defendants and Respondents.

BENDIX, J.

Plaintiff and appellant Robert DiRaffael, appearing in propria persona, appeals from the denial of his petition for a writ of mandate directing the California Army National Guard (CAARNG) to vacate an order separating appellant, a commissioned officer, from CAARNG. Defendants and respondents are CAARNG and four individuals named in appellant's petition: David S. Baldwin, California's Adjutant General; Lawrence A. Haskins, commander of CAARNG; and John D. Ford and Dwight D. Stirling, two officers in CAARNG who purportedly reviewed and supervised the issuance of the separation order.

CAARNG ordered appellant separated pursuant to federal regulations governing selective retention of National Guard officers after 20 years of service. Appellant argued in his writ petition that the United States Constitution reserved to the states the right to appoint and terminate the appointments of state National Guard officers, and therefore CAARNG could not rely on federal regulations to separate him. The trial court found that state law incorporated the applicable federal regulations via provisions of the Military and Veterans Code, and thus CAARNG properly could invoke them to separate appellant.

Appellant argues that the trial court erred because (1) the United States Constitution prohibits the Legislature from incorporating the federal regulatory provisions under which CAARNG separated appellant and (2) even if the Legislature could incorporate those provisions, it has not done so. We reject both propositions. We further hold that appellant's claims of purported procedural and evidentiary errors by the trial court lack merit. Accordingly, we affirm the judgment.

FACTUAL BACKGROUND

Appellant served as a lieutenant in CAARNG. In September 2012 he received a letter sent on behalf of the Chief of the federal National Guard Bureau notifying him that, having completed 20 years of required service,1 he was eligible for retired pay upon application at age 60.

On April 30, 2013, Respondent Haskins issued an order appointing an "Officer Selective Retention Board" pursuant to National Guard Regulation (NGR) No. 635–102, a federal regulation. The order stated that "[t]he purpose of the Board is to recommend qualified officers, who have 20 years of qualifying service for retired pay at age 60, for continued unit participation in the California Army National Guard."

In July 2013, appellant was served with a memorandum signed by Haskins "for the Adjutant General." (Capitalization omitted.) The memorandum stated that appellant was "considered for retention in accordance with NGR 635–102 and unfortunately, you were not selected for retention in the California Army National Guard. NGR 635–102 provides that an officer who is considered for retention and is not selected will be separated from the Army National Guard. Accordingly, you will be separated with an effective date of 30 September 2013." The memorandum stated it was appellant's "responsibility to elect membership in either the Retired Reserve or the Individual Ready Reserve (IRR) of the United States Army Reserve (USAR) upon discharge from the California Army National Guard."

Appellant received an "Acknowledgement of Receipt" (boldface omitted) that requested he select one of the two reserve options listed in Haskins's memorandum. Rather than selecting either option, however, appellant wrote "[t]his action was not taken in accordance with NGR 635–102 or relevant law," and "I opt to stay a member of the CAARNG."

CAARNG served appellant with an order, dated September 10, 2013 stating, "You are separated from the Army National Guard on [September 30, 2013] and assigned as indicated on date immediately following." The order further stated, "Upon termination of federal recognition officer becomes a member of USAR under provisions of Title 10 U.S. Code 12213." The order listed a "[r]eserve obligation" dated February 28, 2014. The order stated that it was "by order of the Governor" (some capitalization omitted), and bore the stamp of the Military Department. The order cited as authority "Para 5a(8) NGR 635–100." NGR No. 635–100 is a federal regulation stating that "[u]nless contrary to State law and regulations, the appointment of an Army National Guard officer should be terminated" for specified reasons (NGR No. 635–100, subd. (5)(a)), including "[u]pon [the officer] becoming a member of the Army Reserve" (id. , subd. (5)(a)(8)).

PROCEDURAL HISTORY

Appellant filed a petition for a writ of mandate under Code of Civil Procedure sections 1085 and 1094.5, naming respondents. Appellant contended that separating him from CAARNG "based on the recommendation of a Federal Selective Retention Board ... contravenes the applicable laws and policies of the State of California." Appellant claimed that "the sole process by which a [California National Guard] officer may be involuntarily discharged through administrative separation for non-medical reasons is through a board convened pursuant to [Military and Veterans] Code § 234." Appellant invoked article I, section 8, clause 16 of the United States Constitution, which "reserv[es] to the States respectively, the Appointment of the Officers" of the state militia. Appellant argued that, even accepting that the federal board had removed his eligibility for federal service, he remained eligible for state service under California law. Appellant prayed for a writ of mandate ordering respondents to vacate the memorandum signed by Haskins notifying him of his separation.

The petition specified that appellant "d[id] not request [the trial court] to subject the [federal selective retention board] to direct review," and described the board as "a Federal entity composed of Federal officers who act under Federal authority exclusively." The petition stated that appellant was in the process of exhausting his federal administrative remedies in anticipation of filing a separate action in federal court to challenge "withdrawal of my Federal Recognition by the National Guard Bureau ... of the United States Department of Defense."

Respondent Baldwin filed a notice of removal to federal district court. After more than a year with no action by appellant, the federal court granted an unopposed motion to dismiss the case for lack of prosecution. Appellant responded with a motion to alter or amend judgment that, among other things, challenged the federal court's jurisdiction. The federal court concluded that appellant's petition indicated "an intent to sue solely as to the state law question of whether separation from CAARNG was procedurally proper, and not to sue as to Major General Baldwin's acts under the authority of federal law." On this basis the federal court found it lacked jurisdiction, vacated its dismissal order, and remanded the case to the trial court.

After remand and briefing, the trial court conducted a hearing on the petition. The trial court issued a tentative decision and ordered supplemental briefing on several issues, including whether appellant could serve in CAARNG absent federal recognition, the applicability of the governor's authority to transfer and reassign California National Guard members under Military and Veterans Code section 239, and whether the Feres2 doctrine barred appellant's petition.

After the parties submitted their supplemental briefs, the trial court held a second hearing at which it ordered additional briefing on due process, specifically whether appellant received adequate notice of the selection retention proceeding.

After receiving the additional briefing, the trial court issued a written decision denying the writ. As an initial matter, the trial court found that a writ of administrative mandate pursuant to Code of Civil Procedure section 1094.5 was inapplicable because the selective retention process under NGR No. 635–102 did not provide for an evidentiary hearing. The trial court therefore assessed whether the petition stated grounds for a writ of mandate under Code of Civil Procedure section 1085.

The trial court found that "the power to appoint and terminate a state National Guard officer is held by the state," and acknowledged that appellant had been separated under the authority of federal regulations. The trial court found, however, that provisions of the Military and Veterans Code, including sections 100 and 101, "specifically incorporate[ ] federal law and regulations" " ‘so far as the same are not inconsistent with the rights reserved to this State and guaranteed under the Constitution of this State.’ " (Quoting Mil. & Vet. Code, § 101 boldface and italics omitted.) The trial court determined the relevant inquiry was whether the applicable federal regulations, NGR Nos. 635–100 and 635–102, as applied to appellant, were inconsistent with the rights reserved to California and guaranteed under its Constitution, in which case they would not be incorporated into state law and could not serve as a basis to separate appellant from CAARNG.

The trial court then compared various provisions of the Military and Veterans Code to the federal regulations as applied to appellant and found no inconsistency. The trial court further found appellant's cited authorities inapposite. The trial court therefore deemed the provisions of NGR Nos. 635–100 and 635–102 as applied to appellant incorporated into state law and an adequate basis to order appellant's separation from CAARNG.

On the due process question, the trial court concluded that, while appellant was entitled to notice of the federal...

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