Navas v. Gonzalez Vales, Civ. No. 83-1279 (RLA).
| Decision Date | 14 May 1984 |
| Docket Number | Civ. No. 83-1279 (RLA). |
| Parties | Luis S. NAVAS, Plaintiff, v. Luis GONZÁLEZ VALES, et al., Defendants. |
| Court | U.S. District Court — District of Puerto Rico |
Manuel A. Quilichini, Lespier, Muñoz Noya & Ramírez, Carlos Del Valle, Lespier, Muñoz Noya & Ramírez, San Juan, P.R., for plaintiff.
Howard Charles, Dept. of Justice, Com. of P.R., San Juan, P.R., Gary H. Montilla, U.S. Dept. of Justice, Office of the U.S. Atty., Hato Rey, P.R., George López Keelan, Río Piedras, P.R., for defendants.
Plaintiff filed a civil action before this Court on June 1, 1983 requesting declaratory and injunctive relief, mandamus and damages1 against the named defendants for allegedly being discharged from his position within the Puerto Rico National Guard ("the PRNG") without due process. Simultaneously, plaintiff filed a motion for a temporary restraining order, which was denied on June 9, 1983.
The parties submitted the matter for resolution through joint stipulation of facts and exhibits on June 20, 1983 (Docket No. 14). Thereafter, the parties remaining in this action were Luis González Vales, personally and as representative of the PRNG, the Commonwealth of Puerto Rico (state defendants), and the United States of America (federal defendants). Jurisdiction was invoked pursuant to 28 U.S.C. §§ 1331, 1343, 1361, 2201, 2202 and 42 U.S.C. § 1983.
Presently before us for disposition are the motions to dismiss and/or for summary judgment filed by the parties with their respective memoranda2 and oppositions thereto.
For the past thirty-four (34) years, plaintiff served with the PRNG. The last twenty-six (26) years he has served as a commissioned officer and as a colonel since 1977. Plaintiff's mandatory removal date for length of commissioned service is November 4, 1986.
A Selective Retention Board was convened during March 19-20, 1983 to consider plaintiff for selective retention as provided for in NGR 635-102.3 Through memorandum dated April 13, 1983, the former Adjutant General, Orlando Llenza, notified plaintiff of the Board's recommendation not to select him for retention and of his approval thereof. Plaintiff was advised he would be separated from the Army National Guard on June 11, 1983. Subsequently, plaintiff requested reconsideration of the recommendation for non-retention. Said request was denied by defendant González Vales while pointing out to plaintiff that NGR 635-102 makes no provision for reconsideration by the Adjutant General. Plaintiff did not file an application for relief with the Army Board for Correction of Military Records which could properly entertain such a request pursuant to 10 U.S.C. § 1552 and 32 C.F.R. § 581.3 (1983).
Plaintiff claims his removal from the PRNG was not in conformity with the applicable regulations. It is further claimed that this violation of regulations deprives him of a property interest in his continued service, in violation of the due process clause of the Constitution of the United States. Plaintiff further contends that, were it not for this unlawful separation, he would be entitled to remain in service with the PRNG until November 1986, his mandatory removal date. Furthermore, plaintiff claims that the regulation is invalid per se because it fails to grant him, or any other similarly situated person, the minimum due process that must be present in an adjudicative decision-making process. Plaintiff notes that NGR 635-102 makes no provision for an effective opportunity to confront the evidence against him nor to provide him with a decision supported by findings of fact.
Defendants basically raise four (4) issues in opposition to plaintiff's motion for summary judgment and in support of their motions to dismiss and for summary judgment: first, defendants claim that the Court lacks subject matter jurisdiction; second, that plaintiff has failed to state a claim for which relief can be granted; third, that plaintiff's claim is non-justiciable and non-reviewable; and last, that plaintiff's claim should be barred for failure to exhaust available administrative remedies.
Plaintiff affirms that his complaint states a cause of action which is justiciable and within the subject matter jurisdiction of the Court. He alleges he has a property interest in continued service which is protected by the due process clause of the Fifth and Fourteenth Amendments to the Constitution. Plaintiff further claims that the PRNG failed to comply with its own regulations rendering its action invalid.
In Bell v. Hood, 327 U.S. 678, 66 S.Ct. 773, 90 L.Ed. 939 (1946), the Supreme Court stated that the method of rendering dismissals for lack of jurisdiction should be used sparingly.
/W/here the complaint, as here, is so drawn as to seek recovery directly under the Constitution or laws of the United States, the federal court ... must entertain the suit ... The reason for this is that the Court must assume jurisdiction to decide whether the allegations state a cause of action on which the court can grant relief as well as to determine issues of fact arising in the controversy. Id. at 681-82, 66 S.Ct. at 775-76.
It has also been affirmed that when allegations of failure to comply with administrative regulations are asserted, the Court is not barred from entertaining such actions. See United States v. Shaughnessy, 347 U.S. 260, 74 S.Ct. 499, 98 L.Ed. 681 (1954); Suro v. Llenza, 531 F.Supp. 1094, 1097 (D.C.P.R.1982).
As for the state defendants' argument that the action against the Commonwealth of Puerto Rico cannot be maintained because of the Eleventh Amendment bar, it is without merit. It has been reiterated by our circuit that requests for injunctive relief are not barred by the Eleventh Amendment. See Urbanizadora Versalles, Inc. v. Rivera Rios, 701 F.2d 993 (1st Cir.1983); Citadel Corp. v. Puerto Rico Highway Authority, 695 F.2d 31 (1st Cir.1982); Pamel Corp. v. Puerto Rico Highway Authority, 621 F.2d 33 (1st Cir. 1980). Therefore, we find that jurisdiction in this case could be invoked under 28 U.S.C. § 13314 or § 1361.5
Having determined that the Court has subject matter jurisdiction, we now turn to the matter of whether the complaint states a claim for which relief may be granted.
Plaintiff claims that his premature separation from the PRNG will strip him of property without due process of law.6 He avers that a property interest in his position is created and defined by NGR 635-102 and that once the regulations grant a property interest, it must be accompanied by the rudimentary due process safeguards that attach to a protected interest. Therefore, since NGR 635-102 does not afford plaintiff notice of the case against him nor the opportunity to meet it, the regulation itself is constitutionally invalid.
In this case, the property right plaintiff claims was taken consists of military pay until his mandatory retirement age and his status as officer of the PRNG. In the alternative, he claims defendants did not comply with their own regulations and that the regulation per se is unconstitutional.
Due process is not in and of itself a protected interest. It is a condition which must be complied with whenever the state seeks to divest an individual of any substantive (life, liberty or property) interest. Therefore, before it can be applied, there must be a protected interest at stake. See Paul v. Davis, 424 U.S. 693, 96 S.Ct. 1155, 47 L.Ed.2d 405 (1976); Board of Regents v. Roth, 408 U.S. 564, 92 S.Ct. 2701, 33 L.Ed.2d 548 (1972).
In Board of Regents, the Supreme Court further held that property interests are not created by the Constitution. "Rather, they are created and their dimensions are defined by existing rules or understandings that stem from an independent source such as state law-rules or understandings that secure certain benefits and that support claims of entitlement to those benefits." Id. at 577, 92 S.Ct. at 2709. It is clear then that to have a property interest a person must have more than a unilateral expectation of it, there must be more than an abstract need or desire for it, plaintiff must also have a legitimate claim of entitlement to it. Id. at 577, 92 S.Ct. at 2709.
Plaintiff does not expound on how NGR 635-102 creates and defines a property interest other than stating that it (NGR 635-102) sets the standards regulating the non-retention of an officer. Plaintiff's interpretation of the regulation seems to be that as long as his Officer Efficiency Reports (OERs) show he is a capable officer, he must be retained by the PRNG without any consideration as to other factors set forth in the regulation.7
In Sims v. Fox, 505 F.2d 857 (5th Cir. 1974) (en banc), the court held that no property right exists which entitles a career officer in the United States Air Force to a due process hearing before his separation. "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 in service and that the services of an officer may be terminated with or without reason." Pauls v. Secretary of Air Force, 457 F.2d 294, 297 (1st Cir.1972) and cases cited therein.
The Court finds no evidence on the record indicating plaintiff was at any time led to believe he would be retained until his mandatory retirement age. Contrary to Suro v. Llenza, supra, 531 F.Supp. 1094, in this case there is no (bilateral) agreement, nor does the regulation confer any such expectancy directly or implied. On the contrary, having served as a commissioned officer for the last twenty-six (26) years, plaintiff was well aware that his tenure was at all times conditioned by the terms of the National Guard Regulations, one of which was NGR 635-102. See Walker v. Alexander, 569 F.2d 291, 293 (5th Cir.1978).
The goals of selective retention are patently directed toward the maintenance of a strong National Guard and not the protection of...
To continue reading
Request your trial
-
Navas v. Gonzalez Vales, 84-1501
...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 Navas served with the PRNG for 34 years, the last 26 as a commissioned officer. When this case arose, his continue......