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Wallace Gant, Jr. v. Edward C. Binder, Adjutant General, Nebraska Army-Air National Guard State of Nebraska Robert Kerry, Governor of Nebraska Lloyd Johnson, Brig. General, Chief of Staff Neang Richard Bertrand, Colonel and Commander, Neang James F. McMurray Major, Base Services Officer, Neang Richard Wade, Executive Support Staff Officer, Neang, and James F. Bryant Vincent D. Brown Robert M. Courtney Mary J. Kight Lowell D. Closner Randolph M. Scott Kenneth W. Orr Jerome E. Dickey Members of the Nebraska Enlisted Selective Retention Appeals Board Individually and in Their Official Capacities, Wallace Gant, Jr. v. Edward C. Binder, Adjutant General, Nebraska Army-Air National Guard, State of Nebraska Robert Kerry, Governor of Nebraska Lloyd Johnson, Brig. General, Chief of Staff Neang Richard Bertrand, a Colonel and Commander, Neang James F. McMurray Major, Base Services Officer, Neang Richard Wade, Executive Support Staff Officer, Neang and James F. Bryant Vincent D. Brown, Robert M. Courtney Mary J. Kight L

Citations: 766 F.2d 358; 1985 U.S. App. LEXIS 20086Docket: 84-2477

Court: Court of Appeals for the Eighth Circuit; June 28, 1985; Federal Appellate Court

Narrative Opinion Summary

This case involves an appeal by a member of a state National Guard who challenged his denial of re-enlistment, alleging racial discrimination and violations of due process. The appellant asserted claims primarily under 42 U.S.C. § 1981 and raised additional due process concerns related to his non-retention, which was implemented pursuant to revised regulations and included retirement benefits. The district court dismissed his claims, finding no evidence that race was a factor in the non-retention decision and ruling that due process requirements were satisfied. On appeal, the Eighth Circuit Court of Appeals affirmed the district court's judgment, holding that jurisdiction was proper under § 1981 and unnecessary to determine under other statutes. The appellate court further concluded that there was no clear error in the factual findings relating to racial discrimination, and that, even assuming jurisdiction, the appellant had been afforded adequate procedural protections. The court also upheld the district court's exercise of discretion in declining to require recusal of opposing counsel. Accordingly, the judgment in favor of the defendants was affirmed, with the court determining that the appellant's claims lacked sufficient merit to warrant reversal.

Legal Issues Addressed

Discretion Regarding Recusal of Counsel

Application: The appellate court found no abuse of discretion in the district court’s refusal to require recusal of the appellee’s counsel.

Reasoning: The district court did not abuse its discretion in declining to require the recusal of the appellee's counsel.

Due Process Requirements in National Guard Non-Retention Decisions

Application: Assuming jurisdiction existed, the court held that the plaintiff received sufficient due process in the non-retention proceedings, which were conducted without cause and included retirement benefits.

Reasoning: Even if jurisdiction over Gant's due process claim was assumed, the court upheld that he received sufficient due process during his non-retention, which was conducted without cause but included retirement benefits.

Jurisdiction over Disparate Treatment Claims under 42 U.S.C. § 1981

Application: The appellate court affirmed that the district court properly exercised jurisdiction over the plaintiff’s disparate treatment claim pursuant to 42 U.S.C. § 1981, and found it unnecessary to resolve jurisdiction under other civil rights statutes.

Reasoning: The district court had jurisdiction to consider Gant's disparate treatment claim under 42 U.S.C. § 1981, and it was unnecessary to determine jurisdiction under other civil rights statutes.

Standard of Review for Findings of Fact in Discrimination Claims

Application: The appellate court applied a clear error standard and upheld the district court’s finding that race was not a factor in the plaintiff's non-retention by the National Guard.

Reasoning: The court found no clear error in the district court's determination that race was not a factor in NEANG's decision to revise its regulations and 'non-retain' Gant under the updated standards.