Wigginton v. Centracchio, et al.

• Decision Date: 05 May 1999
• Docket Number: No. 98-2053,98-2053
• Citation: 205 F.3d 504
• Parties: (1st Cir. 2000) EUGENE E. WIGGINTON, Plaintiff, Appellant, v. REGINALD A. CENTRACCHIO, ET AL., Defendants, Appellees. Heard
• Court: U.S. Court of Appeals — First Circuit

Page 504

205 F.3d 504 (1st Cir. 2000)

EUGENE E. WIGGINTON, Plaintiff, Appellant, v. REGINALD A. CENTRACCHIO, ET AL., Defendants, Appellees.

No. 98-2053

United States Court of Appeals for the First Circuit

Heard May 5, 1999

Decided March 13, 2000

[Copyrighted Material Omitted] Robert B. Mann and Mann & Mitchell on brief, for appellant.

Leonard J. DePasquale, Staff Judge Advocate, Rhode Island Army National Guard, and Richard B. Woolley, Assistant Attorney General, Department of Attorney General, on brief, for appellees.

Before Torruella, Chief Judge, Cyr, Senior Circuit Judge, and Pollak,^* Senior District Judge.

Pollak, District Judge.

This case involves a claim by the plaintiff - the appellant in this court - that his status as a commissioned officer in the Rhode Island Army National Guard was wrongfully terminated. Plaintiff challenged that termination by suit brought, pursuant to 42 U.S.C. 1983, in a Rhode Island state court against two defendants - appellees in this court - the Adjutant General of the Rhode Island Army National Guard and the State of Rhode Island. The suit was removed to the United States District Court for Rhode Island. Following brief discovery, the District Court granted the Adjutant General's motion for summary judgment and entered judgment in favor of both defendants. This appeal followed.

I.

A.

The facts giving rise to the plaintiff-appellant's claim are straightforward and may be quickly stated:

Eugene E. Wigginton served in the United States Marine Corps from April of 1967 to September of 1970, when he was honorably discharged. Nine years later - in July of 1979 - the plaintiff received a commission as a Second Lieutenant in the United States Army Reserve. As concomitants of his status as a commissioned reserve officer, Lieutenant Wigginton was appointed an officer of the United States Army National Guard ("USANG") and of the Rhode Island Army National Guard ("RIANG"), with assignment to a RIANG Military Police unit. As the years went by, Lieutenant Wigginton received periodic promotions, reaching the rank of major in 1989. In January of 1996, Major Wigginton (by then assigned as a Public Affairs Officer and serving as a RIANG Education Officer) was nearing completion of twenty years of military service (more than three years in the Marines, and almost seventeen years in USANG and RIANG). In that month he received from Brigadier General Reginald A. Centracchio, Adjutant General of Rhode Island, a memorandum captioned "Consideration for Selective Retention." The memorandum advised Major Wigginton that his status would be considered in May of 1996 by a Selective Retention Board, convened pursuant to National Guard Regulation ["NGR"] 635-102 - a regulation, promulgated in 1988, titled "Personnel Separations OFFICERS AND WARRANT OFFICERS SELECTIVE RETENTION." The Selective Retention Board, according to General Centracchio's memorandum, would "consider commissioned and warrant officers in the grade of colonel and below who have completed 20 years of qualifying service for retired pay." A principal goal of the selective retention process is "[e]nsuring that only the most capable officers are retained beyond 20 years of qualifying service for assignment to the comparatively few higher level command and staff positions." NGR 635-102 3(a).¹ Meeting on May 13, 1996, the Board convened by General Centracchio considered the records of ten officers. Major Wigginton (and presumably the other nine officers) did not appear before the Board; NGR 635-102 states that "[i]ndividuals are not authorized to appear." Via a memorandum to General Centracchio dated May 13, the Board recommended that six officers be retained and that four officers, of whom Major Wigginton was one, not be retained. On the following day - May 14, 1996 - General Centracchio sent Major Wigginton a memorandum stating, inter alia, that "[y]ou have been considered for retention in accordance with [NGR 635-102] and have not been selected. Accordingly, you will be separated from the Army National Guard by 13 July 1996." On July 18, 1996, Colonel Anthony J. Zoglio, director of personnel for RIANG, sent Major Wigginton a memorandum advising him that, effective July 13, he had been separated from the Army National Guard by honorable discharge. At the time of his discharge, Major Wigginton was a Public Affairs Officer, serving as Education Officer of RIANG; he was forty-six years old.

B.

In September of 1996, Major Wigginton brought suit in the Rhode Island Superior Court against General Centracchio and the State of Rhode Island. The suit, in two counts, was brought pursuant to 42 U.S.C. 1983.

The first count alleged that plaintiff's separation from the service, and his consequent ineligibility for promotion to lieutenant colonel, contravened Section 30-3-13 (1994 Reenactment) of Rhode Island General Laws. Section 30-3-13 provides as follows:

All commissioned officers of the staff corps and departments, hereafter appointed, shall have had previous military experience, except chaplains, officers of the judge advocate general's corps, and medical corps officers. They shall hold their positions until they shall have reached the age of sixty (60) years, unless retired prior to that time by reason of resignation or disability, or for cause to be determined by an efficiency board or a court-martial legally convened for that purpose. Vacancies among these officers shall be filled by appointment from the commissioned officers of the national guard or from such other civilians as may be specifically qualified for duty therein.

Major Wigginton's contention was that - absent resignation, disability, or separation "for cause," none of which has occurred - the quoted statute had conferred upon him tenure as a commissioned officer of RIANG (albeit, not of USANG) until he should attain the age of sixty. It follows - so Major Wigginton contended - that termination of his tenure as a RIANG officer was abridgement, without due process of law, of a vested property right.

The second count, also predicated on 1983, alleged a denial of due process of law in that "[a]t no time has the plaintiff ever been informed of the reasons why he was not selected for retention . . . ."²

By way of relief, Major Wigginton sought "a preliminary and permanent injunction ordering the defendant³ to reinstate the plaintiff in the Army National Guard, restore to him all his rights and privileges to which he is entitled by reason of his commission, including any back pay, and submit the plaintiff's name to the promotion board for Lieutenant Colonel." (Although the language of Major Wigginton's prayer for relief appears broad enough to encompass reinstatement, and associated entitlements, in USANG as well as in RIANG, Major Wigginton's brief on appeal expressly acknowledges that "[t]he relief this Plaintiff seeks is limited to the Rhode Island National Guard.") The complaint also sought attorney's fees and costs. Based on plaintiff's federal claims, defendants removed the case to the United States District Court for Rhode Island. General Centracchio then moved to dismiss.⁴

The District Court referred the case to a Magistrate Judge, who recommended dismissal for lack of justiciability. The Magistrate Judge was of the view that the case at bar, a 1983 action brought by a subordinate military officer against a military superior and arising out of military service, was barred by this court's decision in Wright v. Park, 5 F.3d 586 (1st Cir. 1993). Wright v. Park, building on Supreme Court precedent that had barred so-called "Bivens actions"⁵ against federal officials for constitutional violations when such actions arise in a military setting, held that 1983 actions of the same character against state officials were likewise barred. The Magistrate Judge concluded that "the Wright court adopted the following bright-line rule: actions against military officers for injuries that are 'incident to service' are not justiciable, whether these actions are filed pursuant to 1983 or Bivens." Accordingly, the Magistrate Judge recommended dismissal of the complaint. Disagreeing with the Magistrate Judge, the District Court concluded that plaintiff's claims were justiciable. The District Court held that Wright v. Park is a bar to damage actions but not to actions - of which Major Wigginton's reinstatement suit is an example - in which the relief sought is equitable in nature.

Following the District Court's ruling that Major Wigginton's suit was justiciable, the parties and the District Court turned their attention to the substance of Major Wigginton's claims.

The claim presented by Major Wigginton's first count was that termination of his status as a RIANG officer deprived him, without due process of law, of a property right created by the mandate of Rhode Island state law. See R.I. Gen. Laws 30-3-13 ("[A]ll commissioned officers of the staff corps and departments . . . shall hold their positions until they have reached the age of sixty years.") The parties were in flat disagreement as to the proper construction of the Rhode Island statute. The defense contended that the statute was inapplicable because Major Wigginton was not an officer "of the staff corps and departments." Major Wigginton contended that he was. Accordingly, the District Court authorized discovery for the limited purpose of providing the parties with an enhanced opportunity to elucidate the meaning of that statutory phrase. At the close of discovery, both General Centracchio and Major Wigginton moved for summary judgment.⁶

The District Court filed an opinion which reaffirmed its prior ruling on justiciability but found against Major Wigginton on both counts of his complaint - the first count's due process claim based on R.I. Gen. Laws 30-3-13 and the second count's claim that the Selective Retention Board and General Centracchio had denied Major Wigginton due process by not explaining to him the reasons...