Roig v. Puerto Rico Nat. Guard

• Decision Date: 28 April 1999
• Docket Number: Civil No. 99-1367(PG).
• Parties: Pedro Romero ROIG, et al., Plaintiffs, v. PUERTO RICO NATIONAL GUARD, et al., Defendants.
• Court: U.S. District Court — District of Puerto Rico

Page 216

47 F.Supp.2d 216

Pedro Romero ROIG, et al., Plaintiffs, v. PUERTO RICO NATIONAL GUARD, et al., Defendants.

Civil No. 99-1367(PG).

United States District Court, D. Puerto Rico.

April 28, 1999.

Wilfredo Ruiz-Cabán, Hato Rey, PR, Stuart A. Kirsch, American Federation of Government Employees, Riverdale, GA, for plaintiff.

Marie Cortés-Cortés, Federal Litigation Division, Dept. of Justice, Commonwealth of P.R., San Juan, PR, for defendant.

OPINION & ORDER

PEREZ-GIMENEZ, District Judge.

Pending before this court is plaintiff's motion for preliminary injunction (Dkt.# 10) pursuant to Federal Rule of Civil Procedure 65(a), and the Commonwealth of Puerto Rico's (hereinafter referred to as the "Commonwealth") opposition to said motion (Dkt.# 12). For the reasons expounded below, the court finds merit in plaintiff's request, not without cautioning that the present decision does not involve a final determination on the merits, thus temporarily leaving in a state of uncertainty whether permanent relief shall eventually be granted.¹

Factual & Procedural Background

On June 19, 1998, Brigadier General Daniel F. López Romo, Assistant Adjutant General / Air Commander for the Puerto Rico National Guard, notified TSgt. Orlando Montañez Meléndez and MSgt. Miguel A. Astacio Castro of their non-retention by the Puerto Rico Air National Guard's (hereinafter referred to as "PRANG") Enlisted Selective Retention Review (hereinafter referred to as "ESRRB"). The ESRRB is held annually and provides a tool for the Air National Guard to maintain a stable and viable force structure, as a reserve component of the Air Force. During 1998, said entity considered the cases of two hundred eighty nine service members from the PRANG and recommended the non retention of fifty-two PRANG enlisted members, twenty-four of which, including TSgt. Orlando Montañez Meléndez and MSgt. Miguel A. Astacio Castro, were also technician employees.

TSgt. Orlando Montañez Meléndez and MSgt. Miguel A. Astacio Castro were also notified that they were to be separated from the PRANG effective October 1, 1998. A memorandum stated that the Review Board had been conducted in accordance with Air National Guard Instruction 36-2606, a military regulation. Eventually, TSgt. Orlando Montañez Meléndez and MSgt. Miguel A. Astacio Castro were also separated from their technician employment. At the time of their separation they were also members of AFGE Local 3936.

Subsequent to the notification given by BG López Romo, the membership of AFGE Local 3936 approved a resolution dated August 26, 1998 repudiating and condemning the non retention of Montañez Meléndez and Astacio-Castro. On August 27, 1998, an "Extraordinary Emergency Union Meeting" was held and on November 30, 1998, AFGE Local 3936 scheduled a "protest rally" for December 8, 1998 in opposition to the termination of TSgt. Orlando Montañez Meléndez's and MSgt. Miguel A. Astacio Castro's employment.

The remaining relevant facts are in dispute: Defendants claim that BG López Romo summoned TSgt. Pedro Romero, president of AFGE Local 3936, and gave him instructions as to how the picketing was to be held, in particular that no picketing would be allowed inside the Muñiz Air National Guard Base, that the picketing would have to be after working hours, that no uniforms would be used by the protesters, and that said activity had to be conducted in an orderly manner. Romero, however, asserts in his affidavit that BG López Romo did not offer him guidance during the unit training assembly with regard to the picketing, but at the Community Club, "where drinking regularly occurs." Romero also asserts in his sworn statement that BG López Romo never game him any orders regarding the location or time of the picketing scheduled to occur on December 8, 1998.

The defendants claim that the picketing was an attempt to confuse the public and to coerce the officers of the PRANG to change a determination already made by military authorities. Defendants also allege that the picketing was held "in open violation of the law and the order given." Furthermore, defendants state that the operations of the MANG Base were affected, and that defamatory and offensive language was used against members of the Puerto Rico National Guard. Romero's version of the incidents, unsurprisingly, is quite different. According to Romero, the picketing was held in an orderly fashion, without disrupting in any way the operations of the base.

On April 7, 1999, this court issued a temporary restraining order, which lost its effect on April 17, 1999. At the present, Romero has not been allowed to return to his job.

Legal Analysis & Discussion

I. Whether the Claims Are Justiciable

The Commonwealth forcefully argues that the matter before this court is not justiciable, and even if it is justiciable, that no jurisdiction can validly be exercised under the present circumstances. The concept of justiciability generally refers to whether that which is to be decided is appropriate for court review. The "[t]erm refers to real and substantial controversy which is appropriate for judicial determination, as distinguished from dispute or difference of contingent, hypothetical or abstract character." Black's Law Dictionary, 6th ed. (1990) (citation omitted).

The Commonwealth insists that the decision affecting Romero is a military order, and as such, should be reviewed in a military setting, rather than a federal district court such as the hereby addressing this petition for preliminary injunction. In support of its argument, the Commonwealth makes basically two assertions. First, the statutory definition of a technician reveals that its military functionality is inextricably intertwined with its civilian role. See 32 U.S.C. § 709(e)(1) ("[A] technician who is employed in a position in which National Guard membership is required as a condition of employment and who is separated from the National Guard or ceases to hold the military grade specified for his position by the Secretary concerned shall be promptly separated from his technician employment by the adjutant general of the jurisdiction concerned"). Second, the Commonwealth cites Wright v. Park, 5 F.3d 586, 588-590 (1st Cir.1993) for the proposition that "since National Guard technicians' positions are encompassed within a military organization and require the performance of work directly related to national defense, such position are themselves military in nature," and that courts cannot review military decisions that are taken within the "course of activity incident to service."²

"Unless Congress specifically has provided otherwise, courts traditionally have been reluctant to intrude upon the authority of the Executive in military and national security affairs." Dep't of Navy v. Egan, 484 U.S. 518, 530, 108 S.Ct. 818, 98 L.Ed.2d 918 (1988) (citations omitted). It is also acknowledged that "while a technician's job is a composite, containing both civilian and military pieces, the job's dual functions are inseparable; they are, like Chang and Eng, joined at the chest." Wright v. Park, 5 F.3d 586, 589 (1st Cir. 1993). However, the court must not blindly rest oblivious of plaintiff's plea for equitable relief simply because the incidents in controversy occurred in the midst of a military context. The analysis, if executed within the parameters of a preliminary injunction as opposed to damages, must neither be automatic nor rigid, but carefully tailored to the circumstances before the court.

In Mindes v. Seaman, 453 F.2d 197, 201-202 (5th Cir.1971), the Fifth Circuit outlined a four-pronged test that sheds light on the matter presently at bar:

A district court faced with a sufficient allegation must examine the substance of that allegation in light of the policy reasons behind nonreview of military matters. In making that examination, such of the following factors as are present must be weighed (although not necessarily in the order listed).

1. The nature and strength of the plaintiff's challenge to the military determination. Constitutional claims, normally more important than those having a statutory or regulatory based, are themselves unequal in the whole scale of values....

2. The potential injury to the plaintiff if review is refused.

3. The type and degree of anticipated interference with the military function. Interference per se is insufficient since there will always be some interference when review is granted, but if the interference would be such as to seriously impede the military in the performance of vital duties, it militates strongly against relief.

4. The extent to which the exercise of military expertise or discretion is involved. Courts should defer to the superior knowledge and experience of professionals in matters such as promotion or orders directly to specific military functions.

We do not intimate how these factors should be balanced in the case sub judice. That is the trial court's function.

The balancing approach outlined in Mindes was eventually adopted by the First Circuit in Peñagarícano v. Llenza, 747 F.2d 55, 60-64 (1st Cir.1984), with the sole difference that the First Circuit placed greater emphasis on the last two factors of the Mindes test. Id. at 63-64.

The Wright v. Park, supra, case upon which the Commonwealth vigorously makes its nonjusticiability argument, overruled Peñagarícano, and implicitly, the Mindes balancing approach, and instead established "a bright-line rule as the definitive statement on the justiciability of civil rights claims in the military context, including the National Guard." However, Wright v. Park involves a suit for damages; the instant action, on the other hand, involves a request for injunctive relief.³ Therefore, although Wright v. Park, abolished the multifactor Peñagarícano-Mindes test in civil rights claims involving damages, silence has been kept with regard to the applicability of a bright-line rule in those cases entailing a...