Wright v. Park, Civ. No. 92-0041-B.

• Decision Date: 26 January 1993
• Docket Number: Civ. No. 92-0041-B.
• Citation: 811 F. Supp. 726
• Parties: Richard L. WRIGHT, et al., Plaintiffs, v. Ernest C. PARK, et al., Defendants.
• Court: U.S. District Court — District of Maine

811 F. Supp. 726

Richard L. WRIGHT, et al., Plaintiffs, v. Ernest C. PARK, et al., Defendants.

Civ. No. 92-0041-B.

United States District Court, D. Maine.

January 26, 1993.

Peter Adams Anderson, Bangor, ME, for Wright.

George T. Dilworth, Asst. U.S. Atty., Portland, ME, for defendants.

John E. Carnes, Augusta, ME, for Maine Human Rights Com'n.

ORDER AND MEMORANDUM OF OPINION

BRODY, District Judge.

Defendants General Ernest Park, General Nelson Durgin, General Nicholas Eremita, and Colonel Wilfred Hessert ("Defendants") filed a Motion for Summary Judgment on September 17, 1992. Plaintiffs Richard Wright and Maine Human Rights Commission allege that Wright was removed from his job as Deputy Commander for Maintenance ("DCM") in the Maine National Guard because he "blew the whistle" concerning General Park's unauthorized use of military aircraft and safety violations at the Maine Air National Guard base in Bangor. Defendants assert that Plaintiffs' claims present a nonjusticiable military controversy. Applying the balancing test set forth in Mindes v. Seaman, 453 F.2d 197 (5th Cir.1971), the Court is satisfied that Plaintiffs' claims are nonjusticiable. Therefore, Defendants' Motion for Summary Judgment is GRANTED.

I. BACKGROUND

Plaintiff Wright joined the 101st Air Refueling Wing ("101st") of the Maine Air National Guard as a full-time technician in 1970. This followed service in the United States Air Force. By 1987, Wright attained the rank of Lieutenant Colonel and served as a Flight Training Instructor.

In 1987, General Eremita became Wing Commander of the 101st. General Eremita appointed Wright as DCM and arranged for General Park, the Adjutant General, to reassign Wright to the position of Aircraft Maintenance Officer. As DCM, Wright supervised approximately 130 technicians and 320 traditional guardsmen. He was responsible for ensuring that the 101st's ten KC-135E tankers were in safe, operable condition.

Wright served as DCM for approximately three years. In early 1990, General Eremita took steps to relieve Wright of his command of the maintenance unit and place him in a different position, outside the maintenance arena. On March 2, 1990, Wright received notice that he had been reassigned to Airplane Flight Instructor. The notification provided Wright with ten calendar days to accept or reject the reassignment. Wright's employment would be terminated after thirty days if he did not accept the reassignment. Wright informed the Support Personnel Management Officer that he would not accept the reassignment and was subsequently terminated.

Plaintiffs assert that Wright was reassigned solely because he reported what he perceived to be (1) unlawful use of military aircraft by General Park and (2) safety violations in the operation and maintenance of military aircraft. Plaintiffs allege a conspiracy to retaliate against Wright for reporting these practices and conditions. These claims are brought pursuant to 42 U.S.C. § 1983; 42 U.S.C. § 1985; federal whistleblower laws, 5 U.S.C. §§ 2301-02; and the Maine Whistleblowers' Protection Act, 26 M.R.S.A. §§ 831, et seq. Plaintiffs also claim attorneys' fees under 42 U.S.C. § 1988 and seek punitive damages but they acknowledge that these two claims will fail if summary judgment is granted on Counts I-III.

Defendants counter that the claims are nonjusticiable. Furthermore, with regard to the whistleblower claims, Defendants note the extraordinary measures taken by Wright to conceal his identity when reporting the alleged violations. Defendants assert that there is no evidence to establish the fact that they had knowledge of Wright's actions prior to the reassignment.

II. SUMMARY JUDGMENT STANDARD

Summary judgment "shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(c). The Court views the entire record "in the light most hospitable to the party opposing summary judgment, indulging all reasonable inferences in that party's favor." Griggs-Ryan v. Smith, 904 F.2d 112, 115 (1st Cir.1990).

III. DISCUSSION

1. The National Guard

"The National Guard is an essential reserve component of the Armed Forces of the United States, available with regular forces in time of war." Gilligan v. Morgan, 413 U.S. 1, 7, 93 S.Ct. 2440, 2444, 37 L.Ed.2d 407 (1973). It "does not fit neatly within the scope of either state or national concerns; historically the Guard has been, and today remains, something of a hybrid." New Jersey Air Nat'l Guard v. Fed. Labor Relations Authority, 677 F.2d 276, 278-79 (3d Cir.1982). The National Guard is a unique military force in that each unit within the Guard is responsible to two governments, one local, and the other federal. Penagaricano v. Llenza, 747 F.2d 55, 56 (1st Cir.1984).

The state organizations known as Air National Guards are defined in 32 U.S.C. § 101(6):

"Air National Guard" means that part of the organized militia of the several States and Territories, Puerto Rico, and the District of Columbia, active and inactive, that —

(A) is an air force;

(B) is trained, and has its officers appointed, under the sixteenth clause of section 8, article I, of the Constitution;

(C) is organized, armed, and equipped wholly or partly at federal expense; and

(D) is federally recognized.

"`Federal Recognition' means acknowledgement by the federal government that the persons appointed by the state to the Guard meet the prescribed federal standards for their particular service grade." Penagaricano, 747 F.2d at 56. As a consequence of federal recognition, members of the Air National Guard hold concurrent membership in a distinct federal military organization, the Air National Guard of the United States ("ANGUS"). Id. ANGUS retains the authority to call members of the Air National Guard into federal service. 10 U.S.C. § 8351(c).

Most National Guard members hold full-time civilian jobs and participate in drills only on weekends and for a more extended period during the summer. To compensate for the predominately part-time nature of the Guard, the Air National Guard hires full-time "technicians" to maintain equipment and facilities, train other members of the Guard, and provide clerical support. Penagaricano, 747 F.2d at 57 n. 2.

Pursuant to the National Guard Technicians Act, Guard technicians are employees of the Department of the Air Force and of the federal government. 32 U.S.C. § 709(d). They are hired and supervised by the Adjutant General pursuant to Air Force regulations and must be terminated if they are separated from either the Air National Guard or ANGUS. 32 U.S.C. § 709(c) and (e)(1).

One of the express purposes of the National Guard Technicians Act was to "recognize the military characteristics of the National Guard" by requiring civilian technicians to be military members of the National Guard and by providing for their supervision by the adjutant general pursuant to regulations prescribed by the secretary of the relevant military department.

NeSmith v. Fulton, 615 F.2d 196, 201 (5th Cir.1980) (citing H.R.Rep. No. 1823, 90th Cong., 2nd Sess. (1968)).

2. Justiciability

The hybrid nature of the National Guard is well documented. This does not, however, dilute the role that the Guard plays in our nation's defense or the power that Congress has in setting its policies. "It is clear that the Constitution contemplated that the Legislative Branch have plenary control over rights, duties, and responsibilities in the framework of the Military Establishment, including regulations, procedures, and remedies related to military discipline; and Congress and the courts have acted in conformity with that view." Chappell v. Wallace, 462 U.S. 296, 301, 103 S.Ct. 2362, 2366, 76 L.Ed.2d 586 (1983). Congress has carefully detailed the relationship between the Guard and its technicians. See 32 U.S.C. § 709. As Plaintiff Wright's challenge to his reassignment involves this relationship, the appropriateness of judicial intrusion into the military action must necessarily be addressed. NeSmith, 615 F.2d at 201.

A National Guard technician's right to bring a section 1983 action against the technician's superiors is firmly established. See Johnson v. Orr, 780 F.2d 386 (3d Cir. 1986). The next step, however, is whether a court will review the alleged violation. The First Circuit has adopted the fourpronged test established in Mindes v. Seaman for determining the reviewability of claims arising incident to military service. See Pauls v. Secretary of Air Force, 457 F.2d 294 (1st Cir.1972). The test was used in Penagaricano to uphold the dismissal of a National Guard civilian technician.

In determining when internal military affairs should be subjected to judicial review, the Mindes court held:

What we really determine is a judicial policy akin to comity. It is a determination made up of several subjective and interrelated factors. 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. Concern has also been voiced that the courts would be inundated with servicemen's complaints should the doors of reviewability be opened. But the greatest reluctance to accord judicial review has stemmed from the proper concern that such review might stultify the military in the performance of its vital mission.

Mindes, 453 F.2d at 199.

The Mindes court distilled the applicable caselaw to conclude 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...