Navas v. Gonzalez Vales, 84-1501

• Decision Date: 04 October 1984
• Docket Number: No. 84-1501,84-1501
• Citation: 752 F.2d 765
• Parties: Luis S. NAVAS, Plaintiff, Appellant, v. Luis GONZALEZ VALES, et al., Defendants, Appellees. . Heard
• Court: U.S. Court of Appeals — First Circuit

Page 765

752 F.2d 765

Luis S. NAVAS, Plaintiff, Appellant, v. Luis GONZALEZ VALES, et al., Defendants, Appellees.

No. 84-1501.

United States Court of Appeals First Circuit.

Heard Oct. 4, 1984.

Decided Jan. 18, 1985.

Carlos Del Valle, San Juan, P.R., with whom Manuel A. Quilichini and Lespier, Munoz Noya & Ramirez, Hato Rey, P.R., were on brief for plaintiff, appellant.

John Rogers, Atty., Dept. of Justice, Washington, D.C., with whom Daniel F. Lopez Romo, U.S. Atty., Hato Rey, P.R., Richard K. Willard, Acting Asst. Atty. Gen., Anthony J. Steinmeyer, Atty., Dept. of Justice, and Major Anthony V. James, Atty., Dept. of the Army, Washington, D.C., were on brief for Federal defendants, appellees.

Gerardo Mariani, Asst. Sol. Gen., San Juan, P.R., with whom Raul Barrera Morales, Acting Sol. Gen., San Juan, P.R., was on brief for defendant, appellee Commonwealth of Puerto Rico.

Before CAMPBELL, Chief Judge, ALDRICH and TIMBERS, ^* Senior Circuit Judges.

LEVIN H. CAMPBELL, Chief Judge.

Plaintiff Luis S. Navas Davila appeals from a judgment of the United States District Court for the District of Puerto Rico dismissing Navas's claims challenging his separation from the Puerto Rico National Guard ("PRNG"). 592 F.Supp. 757. The material facts are uncontested.

Navas served with the PRNG for 34 years, the last 26 as a commissioned officer. When this case arose, his continued membership in the Guard had been under annual review pursuant to National Guard Regulation ("NGR") 635-102, which requires that a Selective Retention Board ("SRB") convene yearly to consider whether officers and warrant officers with 20 or more years of qualifying service should be retained in the Guard. ¹ Navas's mandatory removal date was November 4, 1986.

On February 8, 1983, Navas was advised that an SRB would convene on March 21-22, 1983 to consider his retention in the PRNG. Navas visited the office of Captain Nilda Negron on February 17, 1983 to inspect his personnel files, which were to be submitted to the 1983 SRB. Navas discovered that his Officer Efficiency Reports ("OERs") for the years 1980-81 and 1981-82 were not in his file, notified Captain Nilda Negron of their absence, and was reassured by the Captain that he should not be concerned as the missing OERs were being processed. Navas did not write a letter to the SRB, although the regulations allow an officer to do so to "invit[e] attention to any matter of record concerning himself that he feels important in the review of his records." NGR 635-102, p 9-(e)(2).

The SRB actually convened on March 19-20, 1983. Consistent with NGR 635-102, Navas was not given an opportunity to appear and be heard at the meeting, nor was he advised of the SRB's findings or basis of decision. He was later told, however, that the SRB never had before it the two OERs that Navas had earlier found missing from his personnel file. On April 11, 1983, former Adjutant General of the PRNG, Orlando Llenza, received and approved the SRB's recommendation that Navas not be selected for retention.

On April 13, 1983, Navas was notified of the nonretention decision and was advised that he would be separated from the PRNG by June 11, 1983. Navas requested reconsideration of the decision on April 29, 1983. Otto J. Reifkohl, Staff Judge Advocate, PRNG, advised Navas on May 11, 1983 that his request for reconsideration "cannot be entertained since it is not provided for in the regulations." On May 16 and 25, Navas again submitted to the Adjutant General, now Luis E. Gonzales Vales, requests for reconsideration. Apparently in an effort to invoke the state administrative remedy provided by the Military Code of Puerto Rico, P.R.Laws Ann. tit. 25, Sec. 2802, ² Navas also noted in his letter of May 25, 1983 that:

By copy of this letter to the Honorable Governor of Puerto Rico, Commander in Chief of the Puerto Rico National Guard, I hereby request a simultaneous reconsideration, under the terms outlined previously, should my Request be denied by the Adjutant General.

On May 31, 1983, Gonzales Vales responded that NGR 635-102

does not provide for reconsideration by TAG-PR of your non-selection by the Selective Retention Board of 1983, whose report became final on 11 April 1983 when the then Adjutant General, MG Orlando Llenza, approved the board's report .... In order that you exhaust your administrative remedies, you must request relief from the Army Board for Correction of Military Records, as provided in AR 15-185.

Instead of appealing to the Army Board for Correction of Military Records ("ABCMR") under 10 U.S.C. Sec. 1552, ³ Navas filed suit in the United States District Court for the District of Puerto Rico seeking declaratory and injunctive relief, mandamus, and damages against the Commonwealth and federal governments and certain PRNG officers. Navas claims that (1) his separation from the PRNG was not in conformity with the applicable regulations because the SRB did not have before it his two most recent OERs and this regulatory violation constituted legal error redressable in a court of law; (2) the SRB deprived him of a property interest in continued service with the PRNG until his mandatory removal date without due process, by failing to follow the regulations; and (3) NGR 635-102 is invalid on its face because it allows the PRNG to deprive Navas and other similarly situated officers of a property interest in continued service without providing minimum due process requirements such as an effective opportunity to confront the evidence against them, a means by which the SRB's determinations can be challenged, or a decision supported by findings.

The parties submitted the matter for resolution through a joint stipulation of facts and exhibits on June 20, 1983. The district court denied Navas's motion for summary judgment and granted appellees' motions to dismiss or for summary judgment, ruling that Navas failed to state a claim upon which relief could be granted and that the issues he raised constituted a nonjusticiable military controversy. We affirm the judgment of the district court.

I.

We turn first to Navas's constitutional claims, summarized as (2) and (3) above. The fatal weakness in both is that, like the guardsman in Penagaricano, Navas "does not have a constitutionally protected property interest in continued employment in the Guard ... [, t]hus, no process is due" him. Penagaricano v. Llenza, 747 F.2d 55, 62 (1st Cir.1984); Pauls v. Secretary of the Air Force, 457 F.2d 294, 297 (1st Cir.1972) ("It is well-established law that military officers serve at the pleasure of the President and have no constitutional right to be promoted or retained ...."). Hence neither procedural errors by the SRB nor procedural weaknesses in NGR 635-102 would give rise here to a deprivation of "property" without due process.

Navas asserts that NGR 635-102 creates a mutual expectancy that officers will be retained by the Guard until their mandatory removal date unless separated by an SRB that has complied with all valid regulations. However, the mere fact that the Guard has promulgated procedural rules by which to make retention decisions does not by itself create a constitutionally cognizable property interest in continued employment in the Guard. See Board of Curators v. Horowitz, 435 U.S. 78, 92 n. 8, 98 S.Ct. 948, 92 n. 8, 55 L.Ed.2d 124 (1978) (rule that where agency promulgates regulations affecting rights of individuals it must follow them "enunciate[s] principles of federal administrative law rather than constitutional law ...."); Bishop v. Wood, 426 U.S. 341, 344-46, 96 S.Ct. 2074, 2077-78, 48 L.Ed.2d 684 (1976). A regulation creates a property interest in a job only if it explicitly or implicitly gives rise to an entitlement to continued employment.

These regulations create no such entitlement. They do not require separation only for cause, nor do they otherwise imply the granting of tenure. Cf. Arnett v. Kennedy, 416 U.S. 134, 94 S.Ct. 1633, 40 L.Ed.2d 15 (1974). Quite to the contrary, they reflect the concept that because officers with 20 years of service have already qualified for retirement pay, they are to be retained only "selectively," on a year-by-year basis, and that retention decisions are to be based solely on the needs of the PRNG, with only incidental regard for the interests of any particular individual as such. The implication to be drawn from the language of the regulations and the purpose of the Selective Retention Program is one of presumed separation, or at the very least, of continued service solely at the will and pleasure of the Guard. See Bishop, 426 U.S. at 345 & n. 8, 96 S.Ct. at 2077 & n. 8. The regulations confer "no right to continued employment but merely condition[ ] an employee's removal on compliance with certain specified procedures." Id. at 345, 96 S.Ct. at 2077 (footnote omitted). ⁴

We therefore reject Navas's claims of constitutional deprivation.

II.

Having rejected Navas's two constitutionally based claims, we turn to his contention that the SRB's alleged violation of military regulations, i.e., its failure to consider his two recent OERs, constitutes a violation of law which this court should adjudicate and for which it may grant relief. We hold that the claim is not justiciable. ⁵

This court recently considered the criteria for determining the reviewability of claims incident to military service in Penagaricano, 747 F.2d at 60-61 (adopting test set forth in Mindes v. Seaman, 453 F.2d 197 (5th Cir.1971)). First, the plaintiff must allege a violation of the Constitution, a statute or a military regulation, and he must demonstrate that he has exhausted all available intraservice remedies. If these requirements are satisfied, the court must then weigh four factors to determine the advisability of review: (1) the nature and strength of the plaintiff's claim; (2) the potential injury to the plaintiff if review is denied; (3) the type and degree of interference with the...