Oliver v. Wong

• Decision Date: 28 January 2016
• Docket Number: Civ. No. 14-00584 HG-RLP
• Citation: Oliver v. Wong, 158 F.Supp.3d 1036 (D. Haw. 2016)
• Parties: Eric R. Oliver, Plaintiff, v. Darryll D.M. Wong, in his official capacity as Adjutant General of the Hawaii National Guard; Hawaii National Guard ; John Does 1-10; Jane Does 1-10; Doe Partnerships 3-20; Doe Corporations 3-20; Doe Governmental Units 3-20; Other Entities 3-20, Defendants.
• Court: U.S. District Court — District of Hawaii

158 F.Supp.3d 1036

Eric R. Oliver, Plaintiff,

v.Darryll D.M. Wong, in his official capacity as Adjutant General of the Hawaii National Guard; Hawaii National Guard ; John Does 1-10; Jane Does 1-10; Doe Partnerships 3-20; Doe Corporations 3-20; Doe Governmental Units 3-20; Other Entities 3-20, Defendants.

Civ. No. 14-00584 HG-RLP

United States District Court, D. Hawai'i.

Signed January 28, 2016

Clarence Satoshi Kamai Kekina, Mark S. Kawata, Mark S. Kawata Attorney at Law, Honolulu, HI, for Plaintiff.

Julian T. White, Honolulu, HI, for Defendants.

ORDER GRANTING DEFENDANTSDARRYLL D.M. WONG, IN HIS OFFICIAL CAPACITY AS ADJUTANT GENERAL OF THE HAWAII NATIONAL GUARD, AND THE HAWAII NATIONAL GUARD'S MOTION FOR SUMMARY JUDGMENT(ECF No. 18)

Helen Gillmor, United States District Judge

Plaintiff Eric.R. Oliver was an enlisted member of the Hawaii Air National Guard who was also employed by the Hawaii Air National Guard as a military dual status technician.Plaintiff's dual status position required him to be enlisted in the National Guard.Before Plaintiff's enlistment contract expired, Plaintiff applied for reenlistment, but his application was denied.As a result, Plaintiff was terminated from his employment with the Hawaii Air National Guard in February 2012.

Plaintiff's Complaint alleges state law and constitutional claims against DefendantDarryll D.M. Wong, in his official capacity as the Adjutant General of the Hawaii National Guard, and the Defendant Hawaii National Guard.Plaintiff asserts in his Complaint that his reenlistment application was denied in retaliation for Plaintiff engaging in whistleblowing and union activities.

Defendants filed a Motion to Dismiss, or in the alternative, a Motion for Summary Judgment as to each of Plaintiff's claims, asserting that they are barred by the intra-military immunity doctrine.Defendants also assert that Plaintiff failed to exhaust available intraservice remedies regarding the denial of his reenlistment and the termination of his employment.

Plaintiff asserts his claims are not barred by the intra-military immunity doctrine because the decision not to reenlist him and to terminate his employment did not involve consideration of military issues.Plaintiff argues that he exhausted his available intraservice administrative remedies.

The Court construes Defendants' Motion as a Motion for Summary Judgment.The Defendants' Motion for Summary Judgment(ECF No. 18) is GRANTED .

PROCEDURAL HISTORY

On May 25, 2012, PlaintiffEric R. Oliver filed a Complaint in the Circuit Court of the First Circuit, State of Hawaii.(ECF No. 1-1).

On December 31, 2014, the DefendantsDarryll D.M. Wong, in his official capacity as Adjutant General of the Hawaii National Guard, and the Hawaii National Guard, removed the state court action to the United States District Court, District of Hawaii.(ECF No. 1).

On November 4, 2015, Defendants filed DEFENDANTSDARRYLL D.M. WONG, IN HIS OFFICIAL CAPACITY AS ADJUTANT GENERAL OF THE HAWAII NATIONAL GUARD, AND THE HAWAII NATIONAL GUARD'S MOTION TO DISMISS COMPLAINT OR, IN THE ALTERNATIVE, MOTION FOR SUMMARY JUDGMENT.(ECF No. 18).

On the same date, Defendants filed DARRYLL D.M. WONG, IN HIS OFFICIAL CAPACITY AS ADJUTANT GENERAL OF THE HAWAII NATIONAL GUARD AND HAWAII NATIONAL GUARD'S CONCISE STATEMENT OF FACTS IN SUPPORT OF DEFENDANTS' MOTION TO DISMISS COMPLAINT OR, IN THE ALTERNATIVE, MOTION FOR SUMMARY JUDGMENT.(ECF No. 19).

On November 6, 2015, the Court issued a briefing schedule.(ECF No. 20).

On November 20, 2015, Plaintiff submitted a letter requesting an extension of time to file his Opposition.(ECF No. 23).

On the same date, the Court issued a Minute Order that provided Plaintiff an extension of time to file his Opposition and also provided Defendants an extension of time to file their Reply.(ECF No. 24).

On December 11, 2015, Plaintiff filed MEMORANDUM IN OPPOSITION TO DEFENDANTDARRYLL D.M. WONG, IN HIS OFFICIAL CAPACITY AS ADJUTANT GENERAL OF THE HAWAII NATIONAL GUARD AND THE HAWAII NATIONAL GUARD'S MOTION TO DISMISS OR, IN THE ALTERNATIVE, MOTION FOR SUMMARY JUDGMENT.(ECF No. 26).

Also on December 11, 2015, Plaintiff filed PLAINTIFF'S SEPARATE AND CONCISE STATEMENT OF FACTS IN OPPOSITION TO DEFENDANTS' MOTION TO DISMISS OR, IN THE ALTERNATIVE, MOTION FOR SUMMARY JUDGMENT.(ECF No. 29).

On December 31, 2015, Defendants filed DEFENDANTS' REPLY TO PLAINTIFF'S MEMORANDUM IN OPPOSITION TO DEFENDANTDARRYLL D.M. WONG, IN HIS OFFICIAL CAPACITY AS ADJUTANT GENERAL OF THE HAWAII NATIONAL GUARD AND THE HAWAII NATIONAL GUARD'S MOTION TO DISMISS OR, IN THE ALTERNATIVE, MOTION FOR SUMMARY JUDGMENT.(ECF No. 30).

On the same date, Defendants filed DARRYLL D.M. WONG, IN HIS OFFICIAL CAPACITY AS ADJUTANT GENERAL OF THE HAWAII NATIONAL GUARD, AND HAWAII NATIONAL GUARD'S COUNTER CONCISE STATEMENT OF FACTS IN REPLY TO PLAINTIFF'S SEPARATE AND CONCISE STATEMENT OF FACTS IN OPPOSITION TO DEFENDANTS' MOTION TO DISMISS OR, IN THE ALTERNATIVE, MOTION FOR SUMMARY JUDGMENT.(ECF No. 31).

On January 7, 2016, the Court held a hearing on Defendants' Motion for Summary Judgment.

BACKGROUND

The Parties agree to the following facts:

On January 7, 1997, PlaintiffEric R. Oliver enlisted with the Hawaii Air National Guard.(Declaration of David A. Lopina, Staff Judge Advocate of the Hawaii National Guard (“Lopina Decl.”), at ¶ 3, ECF No. 18-4;Declaration of Eric R. Oliver (“Oliver Decl.”)at ¶ 5, ECF No. 26-1).

Plaintiff served in a military capacity with the Hawaii Air National Guard as a Staff Sergeant and he was employed by the Hawaii Air National Guard as a military dual status fuel systems technician.(LopinaDecl. at ¶¶ 4, 8-10, ECF No. 18-4;OliverDecl. at ¶ 7, ECF No. 26-1).

Plaintiff's “military technician (dual status)” position required him to be enlisted in the Hawaii Air National Guard in order to remain employed in the dual status position pursuant to 32 U.S.C. § 709(b)(1).(LopinaDecl. at ¶ 11, ECF No. 18-4;OliverDecl. at ¶ 10, ECF No. 26-1;Deposition of Eric R. Oliver (“Oliver Depo.”)at p. 31, attached as Ex. 9 to Def.'s Motion, ECFNo. 18-14).

Plaintiff was a union steward for the American Federation of Government Employees from 2009 to 2011 while he was employed in his dual status position.(OliverDecl. at ¶¶ 17-20, ECF No. 26-1).Plaintiff, in his capacity as a union steward and as an individual employee of the Hawaii National Guard, made complaints, filed grievances, and submitted unfair labor practice complaints about his supervisor Daniel Lopez.(Id.at ¶ 20).

Enlisted personnel in the Hawaii Air National Guard sign an enlistment contract for a fixed term of service.(LopinaDecl. at ¶ 5, ECF No. 18-4).In 2011, Plaintiff sought reenlistment with the Hawaii Air National Guard as his enlistment contract was set to expire on January 6, 2012.(LopinaDecl. at ¶¶ 5, 7, ECF No. 18-4;OliverDecl. at ¶ 8, ECF No. 26-1;Oliver Depo.at p. 31, ECFNo. 18-14).

Plaintiff's application for reenlistment was denied by his commander, Captain Paul Maedo, and approved by DefendantDarryll D.M. Wong, Adjutant General of the Hawaii National Guard.(LopinaDecl. at ¶¶ 5-6, 15-16, ECF No. 18-4;OliverDecl. at ¶ 8, ECF No. 26-1;Oliver Depo.at p. 32, ECFNo. 18-14).

On January 6, 2012, Plaintiff received an honorable discharge of service from the Hawaii Air National Guard.(LopinaDecl. at ¶ 7, ECF No. 18-4;OliverDecl. at ¶ 6, ECF No. 26-1; Order from the Dept. of the Air Force, dated Apr. 16, 2012, stating Plaintiff was “honorably discharged from the [Hawaii Air National Guard] effective 6 Jan 2012,” attached as Ex. 10 to Pla.'s Reply, ECFNo. 30-2).

On January 20, 2012, Plaintiff was informed that he would be separated from his military dual status technician position as a result of his loss of military membership.(LopinaDecl. at ¶ 12, ECF No. 18-4; Notice of Separation to Staff Sergeant Eric R. Oliver from State of Hawaii Department of Defense, dated Jan. 20, 2012, attached as Ex. 20 to Pla.'s Opp., ECFNo. 26-22).

Plaintiff was terminated from his employment with the Hawaii Air National Guard on February 21, 2012.(Notification of Personnel Action for Eric R. Oliver, Termination Effective Date 2-21-12, attached as Ex. 19 to Pla.'s Opp., ECFNo. 26-21).

Plaintiff did not pursue administrative remedies pursuant to either the Federal Tort Claims Act, the National Guard Military Complaint System, the Air Force Board for Correction of Military Records, or the Hawaii Code of Military Justice.(LopinaDecl. at ¶¶ 17-21, ECF No. 18-4).

Plaintiff claims that he“did pursue administrative relief through the Union grievance procedure and appropriate agency review.”(Pla.'s Concise Statement of Factsat p., 3, ECF No. 29).Plaintiff claims that he was not informed of the available administrative process to challenge the decision denying his application for reenlistment.(OliverDecl. at ¶¶ 128, 132, ECF No. 26-1).

The evidence shows Plaintiff was timely informed by letter about the process to seek relief from the Air Force Board for Correction of Military Records.(Letter from the Inspector General, Department of Defense, dated Feb. 6, 2012, informing Plaintiff that he may request review by the Air Force Board for Correction of Military Records, attached as Ex. 14 to Pla.'s Opp., ECFNo. 26-16).

STANDARD OF REVIEW

Defendants' Motion is titled a “Motion to Dismiss Complaint or, in the Alternative, Motion for Summary Judgment.”(ECF No. 18).The Court considers Defendants' Motion as a Motion for Summary Judgment as there are no genuine issues of material fact presented in the filings.

Summary judgment is appropriate when there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law.Fed. R. Civ. P. 56(c).To defeat summary judgment there must be sufficient evidence that a reasonable jury could return a verdict for the nonmoving party.Nidds v. Schindler Elevator Corp. , 113 F.3d 912, 916(9th Cir.1996).

The moving party has the initial burden of ...