Shaw v. Gwatney, LR-C-82-416.

• Decision Date: 30 March 1984
• Docket Number: No. LR-C-82-416.,LR-C-82-416.
• Citation: 584 F. Supp. 1357
• Parties: Wallace B. SHAW, Plaintiff, v. Harold GWATNEY and John O. Marsh, Jr., Defendants.
• Court: U.S. District Court — Eastern District of Arkansas

584 F. Supp. 1357

Wallace B. SHAW, Plaintiff, v. Harold GWATNEY and John O. Marsh, Jr., Defendants.

No. LR-C-82-416.

United States District Court, E.D. Arkansas, W.D.

March 30, 1984.

James L. Sloan, Little Rock, Ark., for plaintiff.

A. Doug Chaves, Asst. U.S. Atty., Little Rock, Ark., for U.S. Army.

Curtis L. Nebben, Deputy Atty. Gen., Little Rock, Ark., for State of Ariz.

MEMORANDUM OPINION

EISELE, Chief Judge.

The critical issue presented in this lawsuit is whether the defendants deprived the plaintiff of rights guaranteed under the Constitution and various military regulations in the course of relieving the plaintiff from his position as United States Property and Fiscal Officer (USPFO) for the State of Arkansas. The defendants have filed motions to dismiss or, in the alternative, for summary judgment, contending first that the plaintiff was properly relieved and second that the Court should refrain from considering plaintiff's claim because of its military underpinnings. Since the Court rejects both of these contentions, the defendants' motions will be denied.

I. FACTS

A. Background

The plaintiff, Colonel Wallace B. Shaw, is a commissioned officer in the Arkansas Army National Guard. Since his appointment in the National Guard in 1957, he has held a variety of assignments. Colonel Shaw had never served on extended active duty in the United States Army, however, until 1980 when, pursuant to 32 U.S.C. § 708(a),¹ Governor Bill Clinton nominated him to serve as USPFO² for Arkansas. See def. exh. B. On May 4, 1980, Lt. General LaVern E. Weber, Chief of the National Guard Bureau (CNGB) of the Department of the Army, approved the nomination of the plaintiff in accordance with section 708 and certain military regulations.³See def. exh. B. The plaintiff was then ordered to active duty to commence serving as USPFO under the supervision of CNGB Lt. General Weber.

Col. Shaw's tenure as USPFO became imperiled, and then ultimately terminated, over a three-month span in the Spring of 1982. It is the manner in which Col. Shaw's termination was carried out that forms the basis of this suit.

It is undisputed that Major General Harold L. Gwatney, Adjutant General in Arkansas (and co-defendant in this case), wrote Lt. General Weber on March 19, 1982, attributing certain management deficiencies to Col. Shaw. The letter also suggested that Col. Shaw had committed a serious indiscretion in connection with his sale of an automobile to a dealer in Memphis, Tennessee.⁴ The letter concluded:

Because of his lack of management at the USPFO level and the incident described above, I respectfully request that Colonel Shaw's tenure as USPFO for Arkansas be terminated as soon as practical. I am inclosing sic a resume on Colonel William R. Clark for your consideration and approval so that the Governor of Arkansas may be able to submit a formal nomination should you find Colonel Clark to be an acceptable substitute for Colonel Shaw.

On March 29, 1982, then-Governor Frank White wrote the CNGB to tender his "Nomination of Officer for Position of United States Property and Fiscal Officer". Although that letter made no direct reference to the plaintiff, it stated in pertinent part: "I am pleased to nominate the following officer to replace the present USPFO for the State of Arkansas: Clark, William R." The Assistant Secretary of the Army for Manpower and Reserve Affairs on May 12, 1982, approved the nomination of Col. Clark to succeed Col. Shaw. Then on June 8, 1982, Lt. Col. Douglas Randles, Chief of the Personnel Management Branch for the Department of the Army, wrote Col. Shaw, stating:

1. You were ordered to active duty on 1 July 1980 under the provisions of Title 10, United States Code, Subsection 708(a). On 29 March 1982, the Governor of Arkansas directed that you be released from active duty by nominating your replacement as the US Property and Fiscal Officer for the State of Arkansas. Your replacement has been approved by the Secretary of the Army. Accordingly, you will be involuntarily released from active duty on 11 June 1982.

2. Title 32, U.S.C. 708(a) and this letter will be cited as authority for release. Request that two copies of release orders be forwarded to this headquarters, ATTN: DAPC-OPP-MS.

Three days later Lt. General Weber directly notified Col. Shaw that he had approved Col. Clark as USPFO for Arkansas, effective June 12, 1982, and confirmed that Col. Shaw was relieved as USPFO as of June 11, 1982. Col. Shaw was then reassigned to Fort Sam Houston for "separation processing," at which time he would be removed from active duty.⁵ He then apparently was reassigned to the control of the Arkansas Army National Guard. At no time was Col. Shaw given a hearing regarding his termination as USPFO and his resulting discharge from active duty.

B. Litigation

1. Preliminary Injunction Hearing

On June 8, 1982, the plaintiff filed a complaint and requested that the Court temporarily and permanently enjoin General Harold Gwatney and John Marsh, Secretary of the Army, from "taking any further action aimed at effecting Shaw's removal as USPFO for Arkansas." A formal motion for a temporary restraining order was subsequently filed on June 11, 1982.

The Court held a hearing on plaintiff's motion on June 15, 1982, i.e., several days following his removal. The Court found that "if the plaintiff ultimately prevails, the Court has the power to reinstate and to set aside the defendants' actions if they are not in accordance with the law." See Tr. 28. On that basis, the Court concluded that Col. Shaw's legal remedy was adequate and therefore denied his motion.

The Court then directed the parties to brief the issue of plaintiff's entitlement to pre-termination procedures. After filing his brief, Col. Shaw filed an amended and substituted complaint adding as defendants (former) Governor Frank White and Col. Clark. The new complaint requested reinstatement "with full pay, allowances, and all other benefits appurtenant to the office of USPFO."

2. Plaintiff's Allegations

The crux of the plaintiff's claim is that his removal violated his rights to procedural due process as protected by the fifth and fourteenth amendments to the United States Constitution. Specifically, the plaintiff maintains that he was discharged from the USPFO position, and consequently from active duty, without being given "notice of the charges or an opportunity to defend in violation of his rights under the ... Due Process Clauses, in particular his right to liberty (comprehending the right to enjoyment of his good name, reputation, honor, and integrity), and/or in violation of his rights under National Guard Regulation ("NGR") 130-6 and Army Regulation ("AR") 635-100." Second Amended & Substituted Complaint ¶ 11. He contends that applicable regulations explicitly require that before a USPFO is involuntarily relieved for inefficiency and misconduct he must be given notice of the charges and an opportunity to defend. Col. Shaw states that his alleged inefficiency and misconduct were the basis for his involuntary relief. He concludes that his removal was improper because he was not accorded the procedural rights established under the regulations.

3. Defendants' Arguments

Defendants have filed motions to dismiss or, in the alternative, for summary judgment. They raise two principal arguments in support of their motions. First, they contend that Col. Shaw was not entitled to the procedural rights provided under the regulations. They admit, at least implicitly, that if terminated for inefficiency or misconduct at the instigation of the CNGB, Col. Shaw would have been entitled to the procedures and hearing required by the regulations. They also concede that plaintiff was not accorded such procedures before he was removed from the USPFO position. Nevertheless, the defendants assert that the procedural rights created by the regulation are totally irrelevant in the case at bar. According to the defendants there are two ways, not merely one, for a USPFO to be relieved from his position: (1) by act of the Secretary of the Army (or in his stead, the Chief of the National Guard), or (2) alternatively, by the acts of the Governor of the state in which the USPFO serves. As noted above, they admit that procedural rights attach in the former instance. In the latter instance, however, the defendants contend that the military regulations simply do not apply. They assert that since the power to appoint is vested in the Governor, and that since the power to appoint necessarily carries with it the concomitant power to remove, a Governor has the inherent right to terminate a USPFO without giving the USPFO the benefit of any of the procedural rights created in the regulations. According to defendants, Col. Shaw was removed not under the Secretary's removal power, but rather through the Governor's removal power. Defendants conclude, that the plaintiff therefore can claim no entitlement to any pretermination procedural rights.

The second principal argument relied upon by the defendants is that the plaintiff's claim is not justiciable or reviewable by this Court. They contend that the decision to terminate Col. Shaw was a political decision, and as such falls outside the scope of this Court's jurisdiction. Alternatively, they state that even if justiciable, the plaintiff's claim is not reviewable because it is a military decision. They assert quite simply that Col. Shaw's termination lies in the arena of military personnel decision-making into which the judiciary should not enter.

II. JURISDICTIONAL ISSUES

A. Political Question

The court will address the defendants' second argument before proceeding to the first. As to defendants' "justiciability" claim, the Court is not convinced that the issue presented by Col. Shaw represents a "political question" that falls outside the proper boundaries of the Court's jurisdiction. To the extent that defendants rest their argument on...