Penagaricano v. Llenza, 83-1734

Decision Date02 November 1984
Docket NumberNo. 83-1734,83-1734
Citation747 F.2d 55
PartiesGabriel I. PENAGARICANO, Plaintiff, Appellant, v. Orlando LLENZA, et al., Defendants, Appellees.
CourtU.S. Court of Appeals — First Circuit

Julio Maymi Pagan, Santurce, P.R., with whom Gabriel I. Penagaricano, Santurce, P.R., was on brief, for plaintiff, appellant.

Gerardo Mariani, Asst. Sol. Gen., Dept. of Justice, San Juan, P.R., with whom Miguel Pagan, Deputy Sol. Gen., San Juan, P.R., was on brief, for Orlando Llenza.

Before CAMPBELL, Chief Judge, BREYER, Circuit Judge, and GIERBOLINI, * District Judge.

LEVIN H. CAMPBELL, Chief Judge.

Plaintiff Penagaricano, a former member of the Puerto Rico Air National Guard ("PRANG"), appeals from the judgment of the United States District Court for the District of Puerto Rico, 571 F.Supp. 888, dismissing his civil rights complaint against the PRANG and some of his superior officers for his allegedly discriminatory and unwarranted separation from the Guard. To understand Penagaricano's position, it is useful to understand the somewhat complex scheme that regulates the conduct of National Guard retention decisions. We therefore describe this first, before turning to the details of Penagaricano's complaint.

I.

The National Guard is a component of the organized militia of the United States. 10 U.S.C. Sec. 101. It is a unique military force in that each unit within the Guard is responsible to two governments, one local (here, the Commonwealth of Puerto Rico), and the other federal, i.e., that of the United States.

The state entities 1 known as "Air National Guards" are defined at 32 U.S.C. Sec. 101(6) as follows:

"Air National Guard" means that part of the organized militia of the several States and Territories, Puerto Rico, the Canal Zone, and the District of Columbia, active and inactive, that--

(A) is an air force;

(B) is trained, and has its officers appointed, under the sixteenth clause of section 8, article I, of the Constitution;

(C) is organized, armed, and equipped wholly or partly at Federal expense; and

(D) is federally recognized.

"Federal Recognition" means acknowledgment by the federal government that the persons appointed by the state to the Guard meet the prescribed federal standards for their particular service grade. ANGR 36-02, p 1-i. This acknowledgment is performed by special boards appointed by the Secretary of the Air Force, or for ranks under general, by the state Adjutant General. ANGR 36-03, p 3. Members of the Air National Guard, as a consequence of federal recognition, concurrently hold membership in a distinct federal military organization, the Air National Guard of the United States ("ANGUS"). 10 U.S.C. Sec. 8351(a).

A "Vitalization Program" has been instituted for the Air National Guard. The program requires that all officers in the Air National Guard who have completed 20 years of commissioned service be considered each year to determine whether they shall be retained in the Guard. ANGR 36-06. The program is designed to ensure that the Air National Guard does not become top-heavy with senior officers who would block the promotions of deserving junior officers. Id. p 1. Under the program, the Adjutant General ("AG") of each Air National Guard must appoint advisory boards to "evaluat[e] the future benefits that can be expected to accrue to the Air National Guard from the continued service" of the senior officers under consideration. Id. p 10-d. In making their nonbinding recommendations to the AG, the advisory boards consider factors including, "but not ... limited to the following":

(1) Demonstrated performance and potential ....

(2) The availability of the individual for military activities in light of the demands of his civilian occupation.

(3) Past record of interest in and dedication to the Air National Guard.

(4) Status with regard to Air Technician retirement eligibility.

(5) Rated capability and potential as a crewmember in future years ....

(6) Availability of replacement officer with less service who may be lost due to mandatory promotion if high grade vacancies do not exist.

(7) The ratio of officers in an age or service bracket as relates to maintaining an age/grade/service balanced force.

(8) Growth potential for replacing present leaders.

(9) Latest report of medical examination and physical fitness.

(10) Other factors bearing on a plan for assuring a viable combat ready military unit in future years.

Id. p 10-e. If the AG determines that an officer should not be retained, he notifies the Chief, National Guard Bureau, who then issues orders withdrawing the officer's federal recognition. Id. p 11-b(2), c(1).

Once federal recognition is withdrawn, the AG must discharge the officer from the state's Air National Guard. The discharged officer is at the same time automatically separated from the ANGUS. If the officer is also a technician employed by the Guard under the National Guard Technicians Act of 1968, 32 U.S.C. Sec. 709, the AG is required to terminate this civilian employment once the officer is separated from the ANGUS. 2

Air National Guard Regulation 36-06 does not itself provide a means for a rejected officer to obtain review of the decision not to retain him. There are, however, other military administrative procedures available to such an officer to protest his nonretention. These administrative procedures reflect the dual nature of the Guard; to secure complete relief, i.e., to be reinstated as an officer of the Air National Guard, an officer must pursue remedies both within ANGUS and within the Air National Guard of his state.

The remedy within ANGUS is that available generally to officers of the United States Air Force, ANGUS being a part of the United States Air Force Reserve. The complainant may go to the Air Force Board for Correction of Military Records ("AFBCMR"), which has authority to "correct any military record ... when ... necessary to correct an error or remove an injustice." 10 U.S.C. Sec. 1552. If the AFBCMR determines that an officer's nonretention in the Air National Guard was the consequence of error or injustice, the Board can correct the officer's federal records to show that his federal recognition has not been withdrawn and that he remains a member in good standing of the ANGUS. While the Board cannot direct his reinstatement in the National Guard of the state, it can reinstate him in a comparable active federal reserve status, restore his pay and order compensatory back pay.

A favorable finding by the AFBCMR may thus include significant relief, although the AFBCMR has no power to force a state to reinstate the officer in the state's Air National Guard. To gain reinstatement in the state Air National Guard, the officer must seek whatever administrative relief is afforded under state law.

II.

Turning to the present facts, plaintiff Penagaricano was a federally recognized member of the Puerto Rico Air National Guard and thus a member of the Air National Guard of the United States. In 1976, he was promoted to the rank of full Colonel in the PRANG by state authority. A request for federal recognition was sent to the Pentagon, but in January 1977, the newly appointed AG of the PRANG, defendant Orlando Llenza, rescinded the promotion order and withdrew the petition for federal recognition. By March 1977, Llenza had demoted Penagaricano to flight safety officer and promoted Fred Brown to Penagaricano's former position of Commander of the 156 Tactical Fighter Group. In August 1977, Penagaricano also was demoted in his civilian capacity as a technician when his civil service classification was lowered from a GS-14 to a GS-13. Fred Brown was promoted to a GS-14, which was the only existing GS-14 position. Penagaricano appealed the civilian demotion, and a federal civil service administrative examiner ruled that the change to a lower job grade should be set aside. Llenza ignored the ruling. 3

In 1980, Adjutant General Llenza appointed an Advisory Board of Selective Retention pursuant to ANGR 36-06 to consider whether 19 officers should be retained by the PRANG. The Board members were defendants Fred Brown, Jose A. Bloise, and Francisco Rivera Cintron. They took the oath required by the regulations, which affirms that they will perform their review duties "faithfully, without prejudice or partiality." ANGR 36-06, p 10-b. Penagaricano alleges that he was not permitted to appear before the Board, either in person or by counsel. He also alleges that minutes of the Board's proceedings were not kept and that Brown was permitted to vote on Penagaricano's retention despite Brown's personal interest in the outcome of the retention deliberations.

The Board recommended that two officers be separated from the PRANG, one of whom was Penagaricano. Adjutant General Llenza approved the findings of the Advisory Board, and Penagaricano was discharged from the ANGUS, the PRANG, and from his civilian employment as a technician.

Penagaricano did not appeal from the nonretention order to the AFBCMR, nor did he pursue a remedy available under the laws of Puerto Rico. See P.R.Laws Ann. tit. 25, Sec. 2802 ("Any member of the Military Forces of Puerto Rico[, which includes the PRANG,] who believes himself aggrieved by his commanding officer, and who, upon due application to that commanding officer, is refused redress, may complain to any superior commanding officer, who shall forward the complaint to the Governor or Adjutant General.").

Instead, on April 24, 1980, Penagaricano filed a complaint in the Superior Court of Puerto Rico, San Juan Part, under the Puerto Rico civil rights statute, P.R.Laws Ann. tit 32, Secs. 3524 et seq. (1974). He sought damages, mandamus, and injunctive relief against the PRANG, the Honorable Carlos Romero Barcelo in his capacity as the Commander-in-Chief of the Puerto Rico National Guard, Orlando Llenza, personally and in his capacity as the AG of the PRANG, and unnamed members of the Selective...

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