Wenger v. Monroe

• Decision Date: 04 March 2002
• Docket Number: No. 00-56696.,00-56696.
• Citation: 282 F.3d 1068
• Parties: William V. WENGER, Plaintiff-Appellant, v. Paul D. MONROE, Jr., in his official capacity as Adjutant General of the California National Guard; California National Guard, Defendants-Appellees.
• Court: U.S. Court of Appeals — Ninth Circuit

282 F.3d 1068

William V. WENGER, Plaintiff-Appellant, v. Paul D. MONROE, Jr., in his official capacity as Adjutant General of the California National Guard; California National Guard, Defendants-Appellees.

No. 00-56696.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted February 5, 2002.

Filed March 4, 2002.

As Amended on Denial of Rehearing and Rehearing En Banc April 17, 2002.^*

COPYRIGHT MATERIAL OMITTED

Dennis A. Winston, (argued), and Nelson E. Brestoff, Moskowitz, Brestoff, Winston & Blinderman LLP, Los Angeles, CA, for the plaintiff-appellant.

Bill Lockyer, Attorney General of California, Margaret A. Rodda, Senior Assistant Attorney General, Richard Rojo, Supervising Deputy Attorney General, Christina Bull Arndt, (argued), Deputy Attorney General, Los Angeles, CA, for the defendants-appellees.

Appeal from the United States District Court for the Central District of California Robert J. Kelleher, Senior District Judge, Presiding.

Before: O'SCANNLAIN and SILVERMAN, Circuit Judges, and REED,^** District Judge.

OPINION

O'SCANNLAIN, Circuit Judge.

We must decide whether the district court properly dismissed various claims brought by a retired Colonel in the California Army National Guard which challenged military personnel decisions.

I

William Wenger, now retired, served to the rank of Colonel in the California Army National Guard (the "Guard"). He served in the United States Army on active duty for over thirty years, and as a member of the Guard for approximately nine years. On the evening of March 24, 2000, Wenger was a guest speaker at a Guard social event known as a `Dining-In' hosted at the Glendale Armory by the officers of the 3-160th Infantry Battalion, 40th Infantry Division. After the dinner concluded, some of the event's attendees stayed for certain `entertainment' — two (civilian) female strip dancers performed.¹

At some time before the Dining In incident, Wenger's name had been submitted for promotion to the rank of a General Officer. Wenger's promotion awaited Federal recognition by the Department of the Army in Washington, D.C. when the Dining-In occurred. Shortly after the Dining-In, the Guard initiated a preliminary investigation into the dancing incident. Pending the investigation, on April 13, 2000, the Adjutant General for the State of California initiated a suspension of favorable personnel actions against Wenger (known as placing a "flag" on Wenger's file), which had the effect of suspending proceedings on Wenger's promotion.

After initiating its investigation, the Guard requested that Wenger's personnel file be returned from the Pentagon to the State of California pending completion of the investigation. As a result of that request, the Department of the Army Inspector General's Office ("DAIG") opened an inquiry into the Dining-In. The Guard also informed the Army War College, where Wenger had taught for three years, of the flag; thereafter, the War College informed Wenger that he would not be asked to return to teach.

On May 18, 2000, Wenger provided written demand to the California Adjutant General, requesting that the flag on his record be removed; the request was denied.

On June 8, 2000, Wenger filed suit in this action, seeking, inter alia, temporary and permanent relief ordering the Guard (1) to end the investigation, if it was not already ended; (2) to remove the flag from his record; and (3) to inform the DAIG and the Army War College the investigation was improvidently initiated as to Wenger and, in any event, had ended and the flag was removed. The Guard moved to dismiss the suit pursuant to Federal Rule of Procedure 12(b)(6). It also sought a protective order staying discovery until the court ruled on its Rule 12(b)(6) motion to dismiss. Wenger moved for a preliminary injunction. Wenger realized that he would be forced into statutorily-mandated retirement (in Guard parlance, "ROPA'd out") at the end of September, 2000, unless he was under consideration for promotion.² He therefore asked the court to enjoin the Guard from retiring him during the pendency of his suit. The court granted the protective order, but denied the preliminary injunction. On September 20, 2000, the court granted the Guard's 12(b)(6) motion to dismiss.

The district court entered judgment on September 22, 2000. Wenger timely appealed. On September 27, 2000, he sought an injunction barring the Guard from retiring him pending his appeal; the district court denied the injunction.

When September 30 came, the flag on Wenger's file continued to prevent him from being considered for promotion. Accordingly, Wenger was ordered retired from the Guard as a Colonel as of October 1, 2000.

II

The district court concluded that Wenger's claims challenged non-reviewable military personnel decisions, and thus were nonjusticiable under Mindes v. Seaman, 453 F.2d 197 (5th Cir.1971), as adopted by this Circuit, see Wallace v. Chappell, 661 F.2d 729 (9th Cir.1981), rev'd on other grounds sub nom. Chappell v. Wallace, 462 U.S. 296, 103 S.Ct. 2362, 76 L.Ed.2d 586 (1983).

Under the Mindes test as modified by this Circuit, a person challenging a military decision generally must satisfy two threshold elements before a court can determine whether review of his claims is appropriate. "An internal military decision is unreviewable unless the plaintiff alleges (a) a violation of [a recognized constitutional right], a federal statute, or military regulations; and (b) exhaustion of available intraservice remedies." Khalsa v. Weinberger, 779 F.2d 1393, 1398 (9th Cir.), reaff'd, 787 F.2d 1288 (1985). If the plaintiff alleges both of these things, a court weighs four factors to determine whether judicial review of his claims is appropriate. These factors include:

(1) The nature and strength of the plaintiff's claim;

(2) The potential injury to the plaintiff if review is refused;

(3) The extent of interference with military functions; and

(4) The extent to which military discretion or expertise is involved.

Id. The parties agree that Mindes controls actions such as this in which a member of the National Guard challenges a military decision. See Sebra v. Neville, 801 F.2d 1135, 1141 (9th Cir.1986) (holding that the Mindes test is the appropriate standard to determine whether claims brought by National Guard members are reviewable). They disagree, however, about the result it dictates.

A

Wenger has sufficiently alleged the first of the Mindes threshold factors, "a violation of [a recognized constitutional right], a federal statute, or military regulations...." Khalsa, 779 F.2d at 1398. He alleges that the Guard violated his "Constitutional rights to due process for the protection of his good name and reputation."

Admittedly, Wenger has not alleged the second threshold factor, that he "exhaust[ed]... available intraservice remedies." Khalsa, 779 F.2d at 1398. However, he asserts that this Circuit's law excuses this omission. In the past, we have concluded that there are four circumstances in which exhaustion is not required: (1) if the intraservice remedies do not provide an opportunity for adequate relief; (2) if the petitioner will suffer irreparable harm if compelled to seek administrative relief; (3) if administrative appeal would be futile; or (4) if substantial constitutional questions are raised. See Muhammad v. Secretary of Army, 770 F.2d 1494, 1495 (9th Cir.1985). Wenger alleges that his case fits the first and third of these circumstances. He asserts that appeal to the Army Board for the Correction of Military Records (ABCMR) cannot afford him adequate relief and, indeed, would be futile, because he has been forced to retire, and the ABCMR cannot order either his reinstatement in the Guard, or his rehiring by the Army War College. See Christoffersen v. Washington State Air Nat'l Guard, 855 F.2d 1437, 1442 (9th Cir.1988) (recognizing that the Naval equivalent of the ABCMR'has no power to force [state] to reinstate appellant[] in [state's] Guard); see generally 10 U.S.C. § 1552 (setting forth power of correction of records); 32 C.F.R. § 581.3 (establishing ABCMR). The district court agreed. And while the Guard contends that the ABCMR could reinstate Wenger in active federal reserve status, it cites only Christoffersen, which holds the opposite. We therefore conclude that Wenger's failure to exhaust administrative remedies is, indeed, excused.

Accordingly, we proceed to the next step of the Mindes inquiry: the weighing of the four Mindes factors.

B

The district court concluded, after weighing the Mindes factors, that "[a]ll four factors of the Mindes test weigh against review of [Wenger's] claim." Wenger disagrees.

Wenger first argues that the "nature and strength of the [his] claim," Khalsa, 779 F.2d at 1398, weigh in favor of review. As noted above, Wenger alleges that the Guard violated his "Constitutional rights to due process for the protection of his good name and reputation." Wenger cites Wisconsin v. Constantineau, 400 U.S. 433, 437, 91 S.Ct. 507, 27 L.Ed.2d 515 (1971) for the proposition that where the State attaches a "badge of infamy" to the citizen, due process comes into play. He concludes that under this passage, injury to his reputation violates the Due Process Clause of the Fourteenth Amendment. He bases his argument principally on Shakespeare's Othello³ and California state tort law.⁴

Whatever the content of California tort law, injury to reputation standing alone does not violate the Due Process Clause of the Fourteenth Amendment; one's "interest in reputation" standing alone "is neither `liberty' nor `property' guaranteed against state deprivation without due process of law." Paul v. Davis, 424 U.S. 693, 712, 96 S.Ct. 1155, 47 L.Ed.2d 405 (1976); see id. at 701, 96 S.Ct. 1155 (explaining that "[t]he words `liberty and property,' as used in the Fourteenth Amendment, do not in terms single-out reputation as a candidate for special protection over and above other interests...