Charles v. Rice, Secretary USAF

Citations: 28 F.3d 1312; 1994 U.S. App. LEXIS 17503; 1994 WL 327912Docket: 92-2338

Court: Court of Appeals for the First Circuit; July 14, 1994; Federal Appellate Court

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Oscar Charles, a former technician and member of the Puerto Rico Air National Guard (PRANG), tested positive for HIV and was subsequently discharged from both the PRANG and his technician position. He filed a lawsuit under 42 U.S.C. § 1983 seeking declaratory relief, reinstatement, and back pay from multiple defendants, including the Secretary of the United States Air Force and various officials in the PRANG. The district court ruled in favor of the defendants, but the appellate court vacated the decision regarding Charles's claim for back pay from his technician role while affirming the ruling on all other aspects of the case.

The National Guard operates as both a state and federal entity, providing military support at the state level during civil unrest while being available for federal service in national emergencies. The governance of the National Guard is shared between state authorities, such as the governor and the Adjutant General, and federal regulations set by the Department of Defense and the National Guard Bureau. States must comply with federal regulations to avoid losing federal funding for their National Guard units. Members of the state Air National Guard are also part of the Air National Guard of the United States, which is activated during federal service.

Guard members, referred to as 'weekenders,' typically serve part-time through weekend drills and summer activities, while Guard technicians are full-time civil servants employed by the state Adjutant General and must maintain Guard membership for federal employment eligibility. The plaintiff, who enlisted in the Puerto Rico Air National Guard (PRANG) in 1967 and became a technician in 1969, drew dual salaries until his HIV diagnosis in June 1990. Following his positive test, he was honorably discharged from PRANG on September 17, 1990, and transferred to the Standby Reserve per Air National Guard Regulation (ANGR) 39-10, which mandates such action unless a non-deployable position is available.

After being notified on October 16, 1990, that his technician employment ended with his discharge, and facing denials for revocation of orders and disability benefits, the plaintiff sued in the U.S. District Court for the District of Puerto Rico. He contested the validity of ANGR 39-10 and claimed violations of National Guard regulations, Defense Department policy, due process, and equal protection principles. He sought reinstatement, back pay, and a declaratory judgment on the regulation's validity.

On appeal, the court upheld the validity of ANGR 39-10, concluding that the plaintiff's separation did not violate due process or equal protection. The legal issues presented included: the absence of a hearing during discharge, potential conflicts between ANGR 39-10 and Defense Department policy, equal protection concerns, and entitlement to a medical board hearing. The plaintiff contended that PRANG did not adhere to ANGR 39-10, which stipulates that members without military medical care evidence of HIV must be transferred to the Standby Reserves if non-deployable positions are unavailable, directing them to private medical care and counseling.

Plaintiff contends that PRANG failed to adhere to the procedures outlined in ANGR 39-10 during his transfer to the Standby Reserve, rather than disputing PRANG's authority to discharge him. The court determined that PRANG discharged the plaintiff after an unsuccessful search for a compatible nondeployable position relevant to his civil technician job. Major Urutia, a PRANG personnel officer, conducted a thorough search from July or August 1990 to 1991, extending beyond the plaintiff's unit, but found no suitable positions. This finding was supported by a unit manning document and corroborating testimony from another officer. The record included hearsay regarding potential vacancies, but there was no evidence that these positions would have been compatible with the plaintiff's role as an aircraft maintenance technician. The court upheld the district court's conclusion that no suitable, nondeployable positions existed and that the discharge complied with ANGR 39-10.

The plaintiff also argued that he was entitled to a hearing before his discharge, citing a prior version of ANGR 39-10 that mandated such hearings. However, this provision was amended effective August 10, 1990, to exclude members processed under a specific paragraph from receiving a hearing. Although the amendment took effect after the plaintiff tested positive for HIV, the court viewed it as a procedural change rather than a new rule affecting the plaintiff's case. Thus, the amendment was deemed applicable to his discharge process, and the regulations in effect at the time of the proceedings governed the situation.

The amendment to ANGR 39-10, which removed the right to an administrative hearing, is applicable to the plaintiff's case. The plaintiff contends that the amendment resembles a bill of attainder—an unlawful law that punishes specific individuals without judicial trial—arguing it was not formally adopted. However, the plaintiff's claims lack evidentiary support. Captain Robinson, responsible for the amendment, testified that it aimed to eliminate unnecessary procedures for individuals with undisputed HIV status when no nondeployable positions were available. Further evaluation by an administrative board was deemed unnecessary as it lacked medical expertise, and since Guard members generally do not receive military health care, individuals would need to bear the costs of any additional medical evaluations. The amendment was approved and effective as of August 10, 1990, serving as a general policy change intended to reduce unnecessary costs, which is not viewed as a bill of attainder.

Regarding the allegation that the discharge violated Defense Department policy, the plaintiff's argument consists of two parts. First, he cites a policy stating that individuals with HIV should not be separated solely based on their condition. However, this policy is not applicable to reservists, as it includes provisions that allow for restrictions on reservists with HIV to nondeployable positions for force readiness. The plaintiff was not discharged solely due to his HIV status but was moved to the Standby Reserve and discharged from the PRANG because of his positive HIV test and the absence of suitable nondeployable positions. The second part of the plaintiff's argument claims that the Secretary of the Air Force misused discretion in limiting reservists with HIV. The policy allows such restrictions for force readiness, but the plaintiff argues that individuals with HIV can lead normal lives, suggesting the restriction is unwarranted.

The standard of review for decisions made at an agency's discretion is deferential, particularly regarding military matters, where courts have limited competence. The Secretary's decision related to 'force readiness' is supported by the record, indicating no abuse of discretion in adopting the policy underlying ANGR 39-10. Asymptomatic individuals with HIV face deployment challenges due to immunization limitations, blood donation restrictions, and symptom unpredictability, affecting overall force readiness. 

The plaintiff’s equal protection argument claims that the Department of Defense discriminates against reservists by discharging them solely based on HIV status, unlike active duty personnel. The district court did not address this claim as it was inadequately raised in the complaint or at trial. The record confirms that the plaintiff’s complaint focused on HIV status discrimination rather than reservist status. Even if the equal protection issue were preserved, it lacks merit since the policy does not mandate discharge solely based on HIV infection. Reservists with HIV are transferred to the Standby Reserve only when nondeployable positions are unavailable. The appeal on equal protection grounds is deemed waived due to insufficient argumentation.

Regarding due process, the plaintiff's claim fails to specify a violation of any protected liberty or property interest related to his position. He does not provide legal basis or evidence to support a claim for procedural rights in his discharge from the Air Force. Consequently, this due process argument is also considered waived.

An appellant waives any unraised issues in the initial brief, as appellees rely on the appellant's brief for the scope of appeal. Puerto Rico and federal law permit the discharge or transfer of National Guard members per regulations with appropriate authority approval, and courts generally establish that there is no property interest in continued military employment under these conditions. An enlistee discharged according to regulations lacks a property interest in the remainder of their enlistment, as no reasonable expectation of continued service exists once classified as dischargeable. Similarly, military officers do not possess a property interest in their employment if state law does not restrict a commanding officer's demotion authority.

The plaintiff's failure to adequately argue the need for notice and a hearing on appeal leads to the conclusion that the issue need not be addressed. Regarding entitlement to a medical board review, the plaintiff contests the district court's ruling that he was not entitled to such a hearing due to a non-disability-related administrative discharge. Under 10 U.S.C. 1214, a member cannot be separated for physical disability without a hearing if demanded. However, the plaintiff did not provide evidence supporting his claim for a medical board review, and it is undisputed that he is not medically disabled. A "physical disability" must be the reason for discharge for a board to be convened. Even if an HIV infection were considered a disability, the plaintiff would still need to demonstrate entitlement to disability benefits, which he failed to do. Specifically, reservists must show that their disability resulted from an injury during active or inactive duty training to qualify for benefits. The record lacks proof that the plaintiff contracted HIV while serving in the Guard. The document also raises a jurisdictional issue before concluding the opinion.

Federal defendants, including the Secretary of the Air Force and Chief of the National Guard Bureau, contend that appellate jurisdiction is lacking due to the plaintiff's back pay request falling under the Tucker Act. The case involves two claims: (1) 1983 claims for back pay and injunctive relief against Puerto Rico defendants related to the plaintiff’s discharge from the Puerto Rico Army National Guard (PRANG), and (2) a back pay claim against federal defendants stemming from the termination of the plaintiff's technician position. Under the Tucker Act, the United States waives sovereign immunity for non-tort claims for monetary damages, with claims over $10,000 categorized as "Big" Tucker Act claims, which fall under the Court of Federal Claims, while claims up to $10,000 are "Little" Tucker Act claims, with concurrent jurisdiction in district courts. The Federal Circuit has exclusive appellate jurisdiction over these claims, except those related to federal taxes. 

In a similar case, Sibley v. Ball, the court found jurisdiction under the Little Tucker Act despite the plaintiff not citing the Act, leading to exclusive appellate jurisdiction for the Federal Circuit. Here, the plaintiff only cited federal question jurisdiction under 28 U.S.C. 1331 for the 1983 claims, which does not waive sovereign immunity for money judgments against the United States. The district court had jurisdiction for the civil rights claims against Puerto Rico defendants, but not for the back pay claim against federal defendants, as the amount exceeds the Little Tucker Act's limit. Therefore, the appellate court maintains jurisdiction over the injunctive relief claims but vacates the district court's order regarding the back pay claim against federal defendants, as no jurisdictional basis exists under the Tucker Act or 28 U.S.C. 1331.

Authority exists to transfer cases lacking jurisdiction to an appropriate court if it serves justice, as per 28 U.S.C. 1631. The Court of Federal Claims may hold jurisdiction over claims for overdue Guard technician pay under the Tucker Act and the Back Pay Act, but historical rulings, notably in Gnagy v. United States and Christoffersen v. United States, have established that the Back Pay Act does not allow recovery for Guard technicians discharged from their units under federal law. Specifically, the termination of the plaintiff's civilian technician employment was mandated by 32 U.S.C. 1976 due to his discharge from the National Guard; thus, it was not unjustified or unwarranted.

These cases indicate that back pay claims are outside the jurisdiction of the Court of Federal Claims unless a substantive right to monetary relief exists. The court also lacks jurisdiction over claims related to due process and equal protection under 42 U.S.C. 1983, as well as those arising under the Civil Rights Act. While the court has jurisdiction over military pay cases seeking reinstatement and back pay, it does not extend to civilian technician claims if the discharge was lawful.

Given the district court's lack of subject matter jurisdiction over the back pay claim, that aspect of the decision is vacated. Additionally, since the Court of Federal Claims has stated it lacks jurisdiction in cases where a civilian technician has been lawfully discharged, a transfer under 28 U.S.C. 1631 would not be beneficial. Therefore, the claim is dismissed for lack of jurisdiction, while the district court's decision on other matters is affirmed.