Williams v. Wilson, 84-1956
| Decision Date | 16 May 1985 |
| Docket Number | No. 84-1956,84-1956 |
| Citation | 762 F.2d 357 |
| Parties | Gene Hal WILLIAMS, Appellee, v. John A. WILSON, III, as Adjutant General of West Virginia, Appellant. |
| Court | U.S. Court of Appeals — Fourth Circuit |
John E. Dorsey, Sp. Asst. Atty. Gen., Charleston, W.Va., for appellant.
Gene Hal Williams, Charleston, W.Va., for appellee.
Before RUSSELL, HALL and PHILLIPS, Circuit Judges.
John A. Wilson, III, Adjutant General of West Virginia, appeals from a judgment order of the United States District Court for the Southern District of West Virginia directing him to restore Gene Hal Williams to the position in the West Virginia Army National Guard enjoyed by Williams prior to the decision of a selective retention board recommending Williams' separation from Guard service. Concluding that in no event should the district court have exercised jurisdiction in this controversy respecting military personnel affairs until available administrative procedures for its resolution had been exhausted, we vacate the judgment and remand for dismissal of the claim without prejudice.
In May 1984, Gene Hal Williams was a colonel in the West Virginia Army National Guard. Williams had been a commissioned officer in the active and reserve components of the United States Army for over 32 years, and from 1961 through 1968 had himself served as Adjutant General of West Virginia.
On May 7, 1984, Wilson, the current West Virginia Adjutant General notified Williams by letter that Williams and all other commissioned officers in the grade of colonel who had completed 20 years of service would be reviewed by a selective retention board (SRB). National Guard Regulation (NGR) 635-102 directs state adjutants general to convene selective retention boards in their respective jurisdictions to review for selective retention officers who have completed 20 years of qualifying service for retirement pay. The regulation also requires state adjutants general to report the recommendations of the SRBs to the National Guard Bureau.
Before any administrative follow-up on the notice of review had occurred, Williams filed suit in federal district court challenging the constitutionality of NGR 635-102 and moved for a temporary restraining order prohibiting Adjutant General Wilson from appointing and convening an SRB that included more than one active Army officer on the three-officer panel. After a hearing in the district court Williams withdrew this motion.
Thereafter, the SRB, composed of two active Army officers and one National Guard officer, convened and determined that Williams should be separated from the West Virginia Army National Guard. 1 Williams was immediately informed of this decision and shortly thereafter filed a motion for a preliminary injunction in his pending federal action to prohibit Wilson from dismissing him from the West Virginia National Guard. Following a hearing, the district court granted the preliminary injunction, declaring the action of the SRB to be null and void on the basis that the composition of the board violated NGR 635-102. The court ordered the adjutant general to rescind his earlier order separating Williams and to restore Williams to his prior status.
This appeal followed. 2
In Mindes v. Seaman, 453 F.2d 197 (5th Cir.1971), the Fifth Circuit developed an approach that has since become widely accepted by the federal courts for determining whether particular actions of military authorities are properly reviewable by the civilian courts. The Mindes court noted that "traditional judicial trepidation over interfering with the military establishment has been strongly manifested in an unwillingness to second-guess judgments requiring military expertise and in a reluctance to substitute court orders for discretionary military decisions." Id. at 199.
Despite this traditional reluctance of courts to interfere in internal military decisions, however, the court also noted that judicial review of such decisions had been allowed in limited situations. The Fifth Circuit concluded that a court should not review internal military affairs "in the absence of (a) an allegation of the deprivation of a constitutional right, or an allegation that the military has acted in violation of applicable statutes or its own regulations, and (b) exhaustion of available intraservice corrective measures." Id. at 201. A district court faced with a sufficient allegation should then examine the substance of the allegation in light of the general policy of nonreview of military matters, weighing four policy considerations in its determination of justiciability: (1) the nature and strength of the plaintiff's challenge to the military determination; (2) the potential injury to the plaintiff if review is refused; (3) the type and degree of anticipated interference with the military function; (4) the extent to which the exercise of military expertise or discretion is involved. Id. The Fifth Circuit determined that the allegation of the Air Force captain in the Mindes case was sufficient to withstand a motion to dismiss on the pleadings, in light of the claimed violation of due process in the captain's separation from active service and the exhaustion of the captain's intraservice remedies, but vacated the judgment of the district court and remanded for further proceedings balancing the four policy factors enunciated by the court of appeals.
In Navas v. Vales, 752 F.2d 765 (1st Cir.1985), the First Circuit recently applied the Mindes formula to a fact situation quite similar to that of the present case, and affirmed the district court's dismissal of the matter as a nonjusticiable military controversy. In Navas a member of the Puerto Rico National Guard (PRNG) was separated from that group after 34 years of service. Navas challenged the action of the selective retention board that recommended his separation, claiming inter alia that the board had not complied with NGR 635-102 when it acted on the basis of a personnel file that was lacking two officer efficiency reports.
Instead of pursuing the intraservice remedy available to him in the form of an appeal to the Army Board of Correction...
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