United States Court of Appeals For the First Circuit ____________________

No. 98-2053

EUGENE E. WIGGINTON,

Plaintiff, Appellant,

v.

REGINALD A. CENTRACCHIO, ET AL.,

Defendants, Appellees.

____________________

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF RHODE ISLAND

[Hon. Mary M. Lisi, U.S. District Judge]

____________________

Before

Torruella, Chief Judge,

Cyr, Senior Circuit Judge,

and Pollak,* Senior District Judge.

_____________________

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.

____________________

* Of the Eastern District of Pennsylvania, sitting by designation. March 13, 2000 ____________________

-2- 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

, 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

-3- 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,

1 As the District Court explained: "'Selective retention' is a policy instituted by the United States Army through which officers in the USANG who have completed 20 years of commissioned service are reevaluated at regular intervals to determine whether they should be retained for further service. The program is designed to ensure combat

-4- 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

readiness throughout the entire National Guard and to inhibit stagnation in the senior grades."

-5- of Rhode Island. The suit, in two counts, was brought pursuant to

.

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.

-6- 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

2 The second count also alleged that "the criteria set forth in National Guard Regulation 635-102 [to be considered in determining whether or not a person should be retained in the National Guard] were not followed with respect to plaintiff's case." However, plaintiff has not pursued this claim on appeal. 3 Here and elsewhere in his pleadings plaintiff employs the singular "defendant," notwithstanding that there are two named defendants - General Centracchio and the State of Rhode Island.

-7- 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,

(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

4 The State of Rhode Island did not join in - or file a separate - motion to dismiss. See infra note 6. 5 The term " Bivens actions" derives from Bivens v. Six Unknown Federal Agents,

(1971), authorizing damage actions against federal officials who allegedly engaged in unconstitutional conduct to a plaintiff's detriment.

-8- 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

6 Notwithstanding that the State of Rhode Island is a named defendant in this litigation, the State did not join General Centracchio's motion for summary judgment. See infra note 7.

-9- 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 for his non-

retention. Accordingly, the District Court granted the summary

judgment motion of General Centracchio, denied that of Major Wigginton,

and entered judgment against Major Wigginton and in favor of General

Centracchio and the State of Rhode Island.7

With respect to Major Wigginton's claim under the first count

– i.e., the claim that he had a protected property right arising under

R.I. Gen. Laws § 30-3-13 of which he could not be deprived without due

process of law - the District Court stated:

Plaintiff presents the affidavit of Brigadier General Thomas M. Frazer, RIANG (Ret.), an authority on Rhode Island military history. At plaintiff's request, General Frazer reviewed the Military Code of Rhode Island and found it to be "archaic and woefully outdated." Although General Frazer educated the court as to the historical distinctions between line, staff, and general officers, he was unfamiliar with any "staff corps" in the Rhode Island National Guard,

7 The docket sheet establishes that, concurrently with the grant of General Centracchio's motion for summary judgment, judgment was entered in favor of both defendants. On this appeal, a single brief has been filed for General Centracchio and the State of Rhode Island. (The docket sheet does not reflect any challenge to the inclusion of the State of Rhode Island as a named defendant).

-10- and he could only speculate as to what was meant by "and departments." Speaking specifically about the text of R.I. Gen. Laws § 30-3-13, Frazer stated quite candidly, "I have no thought or idea what the writer was trying to convey to the reader . . . ." The defendant's attempt to discover the meaning of "staff corps" was no more fruitful. Colonel Rick Baccus, director of personnel and speaking on behalf of the RIANG, was himself hard-pressed to explain to what the expression "staff corps and departments" refers.

Of course, in this case, it is incumbent on Major Wigginton to establish that he was a member of the "staff corps and departments." Even he cannot say with any conviction that he held any such commission. In fact, although Major Wigginton at one time "believed" he was a member of the staff corps, he now admits that he was "never an officer of a corps identified as staff corps officer." On this basis, Major Wigginton's substantive due process claim must fail.

In addressing Major Wigginton's argument under the second

count that due process required a statement of reasons for his non-

retention, the District Court noted Major Wigginton's reliance on State

v. Ouimette,

(R.I. 1976), a Rhode Island Supreme Court

decision holding that an applicant for parole has a due process

entitlement to a statement in writing of the reasons for denial of

parole. "In so holding," said the District Court, "the [Rhode Island

Supreme Court] balanced the burden of requiring a parole board to give

its explanation for its decision against the seriousness of the right

to have those reasons revealed. . . . Recognizing that Rhode Island

regards due process as a 'flexible concept,' [ Ouimette, 367 A.2d] at

-11- 709, accord Matthews v. Eldridge,

(1976), [this]

court does not find the balance tips in Wigginton's favor."

From the District Court's judgment dismissing his suit Major

Wigginton has appealed.

II.

We have authority to address the issues tendered by Major

Wigginton on this appeal if - but only if - the District Court was

correct in ruling that appellant's suit is justiciable. In their brief

in this court, appellees invoke "well-settled case law that . . .

claims against superior officers by subordinates are not justicible

[sic]." However, appellees' invocation of "well-settled case law"

mandating a finding of non-justiciability appears to be directed only

at appellant's second count, and not at the first count,

notwithstanding that in the District Court the non-justiciability

aspect of General Centracchio's motion to dismiss was addressed to

Major Wigginton's entire complaint, and was so treated by the

Magistrate Judge in recommending to the District Court that Major

Wigginton's complaint be dismissed as presenting claims that were non-

justiciable. Appellees' brief does not undertake to explain why the

issue of justiciability has become narrower in focus between the

District Court and this court.8

8 Possibly, the explanation is traceable to the fact that the District Court, while disposing of the first count adversely to Major Wigginton on the merits, did characterize its rejection of both prongs of the

-12- If appellees, in their brief on appeal, had made no mention

of justiciability, we might have regarded that issue as not before us.

That was the course taken by this court in Charles v. Rice,

, 1316 n.2 (1st Cir. 1994): we there pointed out that certain

issues with respect to which "[t]he district court issued interlocutory

second count as stemming from the conclusion that "[t]hese claims are not justiciable."

As pointed out in footnote 2, supra, the second count, in addition to claiming a lack of due process in the failure of the Selective Retention Board and General Centracchio to recite the reasons underlying Major Wigginton's non-retention, alleged a failure to follow "the criteria set forth in [NGR 635-102]." The District Court held, in reliance on this court's decision in Navas v. González Vales,

(1st Cir. 1985), that, because Major Wigginton had not sought review by the Army Board for the Correction of Military Records of the challenged selective retention procedures, his claim of non- compliance with NGR 635-102 "was nonreviewable as a matter of administrative law." When translated into this court's language in Navas, the District Court's holding may be taken as signifying that Major Wigginton's "regulatory claim [was] a nonjusticiable military matter as he failed to exhaust his intraservice administrative remedies."

. (Given our ruling in Navas, it is unsurprising that appellant has not pressed the NGR 635-102 issue on this appeal).

As noted in the text, supra, the District Court's analysis of Major Wigginton's claim of due process entitlement to be told the reasons for non-retention gave some attention to the Rhode Island Supreme Court's opinion in

and it also mentioned the United States Supreme Court's opinion in Mathews v.

That aspect of the analysis could be read as rejecting Major Wigginton's due process claim as being unpersuasive as a matter of constitutional law. However, a later portion of the analysis culminated in emphasizing "the tremendous deference owed to military decision making." In view of this latter observation, it seems fair to conclude that the District Court, in stating that "[t]hese [second count] claims are not justiciable," did indeed mean that no part of the second count was litigable.

-13- orders . . . . have not been briefed by the parties on appeal, and we

do not address them in this case"; among those unaddressed issues was

a district court ruling "that plaintiff's case was justiciable." But

since, in the case at bar, justiciability has been preserved as an

issue, we are obligated to address it. Moreover, we are persuaded that

we should address the issue as it relates to both counts of Major

Wigginton's complaint. Since justiciability is an issue which, as

presented to the District Court, posed a question as to the authority

of that court to proceed with any aspect of Major Wigginton's case, we

do not think that appellees' decision to present the issue to this

court in truncated form - directed at the second count of the

complaint but, as we read appellees' brief, not the first count -

should operate to confine our inquiry. We are reinforced in this

conclusion by the fact that we have not identified any readily arguable

doctrinal basis for supposing that appellant's second count may be less

- or more - justiciable than his first count. Accordingly, we turn to

a consideration of the comprehensive submission advanced by General

Centracchio in his motion to dismiss in the District Court: "internal

military personnel decisions concerning a member's fitness for duty

have long been held to be non-reviewable by civilian courts."

The District Court, in its opinion granting summary judgment,

recapitulated its prior ruling in which it had reviewed the

recommendation of the Magistrate Judge:

-14- that this case should be dismissed as a nonjusticiable controversy. See Report and Recommendation at 10 (February 5, 1997) (citing United States v. Stanley,

(1987) and Chappell v. Wallace,

(1983)). By order dated March 31, 1998, this court declined to accept this recommendation in toto, finding that only claims for damages are categorically barred by the doctrine of intramilitary immunity and that injunctive remedies may be available to state guardsmen. Compare Wright v. Park,

(1st Cir. 1993) (holding claims for damages on account of injuries incident to military service are barred) with Charles v. Rice,

(1st Cir. 1994) (affirming exercise of federal question jurisdiction over national guardsman's claim for reinstatement). Accordingly, the court ruled that this matter was justiciable.

The District Court correctly parsed our decision in Wright

v. Park. That decision built upon the Supreme Court's 1983 decision in

Chappell v.

and the Court's 1987 decision in United

States v.

In Chappell, the Supreme Court held that,

"[t]aken together, the unique disciplinary structure of the Military

Establishment and Congress' activity in the field constitute special

factors which dictate that it would be inappropriate to provide

enlisted military personnel with a Bivens-type remedy against their

superior officers."

. (We explained, in Wright v.

-15- Park, that " Bivens is the case establishing, as a general proposition,

that victims of a constitutional violation perpetrated by a federal

actor may sue the offender for damages in federal court despite the

absence of explicit statutory authorization for such suits."

n.4). Stanley substantially widened Chappell. Stanley - as we

noted in Wright v. Park - "concluded that the Chappell approach should

apply to all activities performed 'incident to service' rather than

merely to activities performed within the officer/subordinate sphere.

Stanley,

."

.9 Our recognition that,

pursuant to Stanley, "no Bivens remedy is available for injuries that

'arise out of or are in the course of activity incident to service,'"

, led us to state in Wright v. Park that "we now join

several of our sister circuits in accepting this bright-line rule as

the definitive statement on the justiciability of civil rights claims

in the military context, including the National Guard."

.

We then went on to point out that "Wright's suit" - the suit at issue

in Wright v. Park - "invoked the Civil Rights Act rather than following

the Bivens route. But, absent a specific statutory provision to the

contrary, there is no principled basis for according state actors sued

9 As we observed in Wright v. Park,

, the Stanley Court found, see

, that its broadening of Chappell was required in order to maintain doctrinal symmetry with Feres v. United States,

(1950), which foreclosed damage actions against the United States "under the Federal Tort Claims Act for injuries to servicemen where the injuries arise out of or are in the course of activity incident to service."

.

-16- under

a different degree of immunity than would be

accorded federal actors sued for an identical abridgement of rights

under Bivens." Wright v. Park,

. Thus, Wright v. Park

precludes § 1983 damage actions that "arise out of or are in the course

of activity incident to service," including National Guard service.

Accordingly, the District Court in the case at bar was correct in its

understanding that all intramilitary damage actions are foreclosed by

Wright v. Park.

Was the District Court also correct in concluding that "only

claims for damages are categorically barred" (emphasis added)? The

District Court gleaned this from Charles v. Rice. That case, as the

District Court pointed out, was an instance of "exercise of federal

question jurisdiction over [a] national guardsman's claim for

reinstatement." However, Charles v. Rice is not binding authority for

the propriety of that exercise of federal question jurisdiction. As we

have already had occasion to point out, in Charles v. Rice the issue of

the justiciability of the reinstatement suit brought by the plaintiff

national guardsman was addressed by the district court in an

interlocutory ruling but was not preserved as an issue on appeal, with

the result that this court expressly refrained from passing on the

issue.

n.2. We are satisfied, nonetheless, that in

ruling - contrary to the Magistrate Judge's assessment - that Major

Wigginton's suit was justiciable, the District Court was correct in

-17- concluding that Wright v. Park is not a bar to a guardsman's

reinstatement suit, whether brought against federal actors or, as in

the case at bar, against state actors pursuant to § 1983. This is so

for two reasons:

The first reason is that, as the foregoing reprise of Wright

v. Park establishes, our opinion in that case was solely concerned with

intramilitary suits for damages, whether brought against federal actors

or, under § 1983, against state actors.

The second, and controlling, reason is that, taken together,

Chappell and Stanley - the Supreme Court decisions Wright v. Park built

upon - make it clear that intramilitary suits alleging constitutional

violations but not seeking damages are justiciable.

In Chappell, the unanimous Court, in an opinion by Chief

Justice Burger, held that a federal district court could not entertain

a Bivens-type damage action in which Navy enlisted personnel complained

of racial discrimination at the hands of the officers in command of the

naval vessel on which the plaintiffs served. In the concluding section

of the opinion, Chief Justice Burger wrote:

Chief Justice Warren had occasion to note that "our citizens in u n i f o r m m a y n o t b e stripped of basic rights simply because they have doffed their civilian clothes." Warren, The Bill of Rights and the Military, 37 N. Y. U. L. Rev. 181, 188 (1962). This Court has never held, nor do we now hold, that military personnel are barred from all redress in civilian courts for

-18- constitutional wrongs suffered in the course of military service. See, e.g., Brown v. Glines,

(1980); Parker v. Levy,

(1974); Frontiero v. Richardson,

(1973). But the special relationships that define military life have "supported the military establishment's broad power to deal with its own personnel. The most obvious reason is that courts are ill-equipped to determine the impact upon discipline that any particular intrusion upon military authority might have." Warren, supra, at 187.

We hold that enlisted military personnel may not maintain a suit to recover damages from a superior officer for alleged constitutional violations.

.

Four years later, in Stanley, the Court addressed the

question whether a plaintiff could bring a Bivens-type damage action,

years after having been discharged from the Army, against Army

personnel not all of whom had been his military superiors; the gravamen

of plaintiff's complaint was that, while in service, he had volunteered

to participate in what was represented as being a test of protective

military equipment but was in fact a test of the effects of LSD, and

that as part of the test he had been given doses of what - unbeknownst

to him until years after his discharge - was LSD, with deleterious

consequences. The Court of Appeals for the Eleventh Circuit, in

distinguishing Chappell and ruling that Stanley's suit was viable,

Stanley v. United States,

(11th Cir. 1986), had

quoted Chief Justice Burger's statement in Chappell that "[t]his Court

-19- has never held, nor do we now hold, that military personnel are barred

from all redress in civilian courts for constitutional wrongs suffered

in the course of military service." Chappell,

. But

the Supreme Court in Stanley, in reversing the Eleventh Circuit, ruled

that Chief Justice Burger's statement was inapposite to Bivens-type

actions such as the one brought by Stanley. "As the citations

immediately following that statement suggest, it referred to redress

designed to halt or prevent the constitutional violation rather than

the award of money damages."

. Justice Brennan, joined

by Justice Marshall, filed an extended opinion, concurring in part and

dissenting in part; but that opinion clearly recognized that the

Court's opinion left undisturbed a military plaintiff's entitlement to

pursue an equitable action to bring constitutional violations to an

end. Justice Brennan's expressed concern was that, for one in

Stanley's circumstances, equitable relief would be unavailing. "Of

course experimentation with unconsenting soldiers, like any

constitutional violation, may be enjoined if and when discovered. An

injunction, however, comes too late for those already injured; for

these victims, 'it is damages or nothing.' Bivens,

(Harlan, J., concurring)."

.10

10Justice Stevens joined a portion of Justice Brennan's opinion, but not the portion from which the quotation is taken.

-20- In short, the lesson implicit in Wright v. Park is express

in Stanley: Major Wigginton's suit alleging federal constitutional

violations and seeking reinstatement in Rhode Island's national guard

is cognizable in a federal district court.

We turn, now, to a consideration of the merits of appellant's

claims.

III.

Appellant, as we have previously explained, makes two claims.

The first claim is that the joint action of the Selective Retention

Board and General Centracchio in terminating his status as a RIANG

officer has deprived him, without due process, of a property right,

conferred by R.I. Gen. Laws § 30-3-13, to continue to "hold [his]

position" as an officer of the Rhode Island guard "until [he] shall

have reached the age of sixty (60) years." The second claim is that

the non-disclosure to Major Wigginton of the reasons for the Selective

Retention Board's recommendation of non-retention - a recommendation

which General Centracchio promptly accepted and acted upon - was, from

a due process perspective, a constitutionally fatal flaw in the non-

retention process.

We will first address appellant's narrowly focused second

claim.11

11In conformity with our ruling that appellant's suit is justiciable because it is a suit in equity rather than a damage action, we assume, arguendo, that if (1) we determine that appellant is correct as a

-21- A.

As noted earlier in this opinion, appellant's second claim -

that he had a due process right to be told the reasons for his non-

retention - invokes the Rhode Island Supreme Court's determination in

that Rhode Island's parole board must, as a matter of

due process, state its reasons when it denies parole. See also Pine v.

Clark,

(R.I. 1994); State v. Tillinghast,

(R.I. 1992). Ouimette, decided in 1976, anticipated the

United States Supreme Court's pronouncement three years later in

Greenholtz v. Nebraska Penal Inmates,

(1979), that

"[t]he Nebraska procedure affords an opportunity to be heard, and when

parole is denied it informs the inmate in what respects he falls short

of qualifying for parole; this affords the process that is due under

these circumstances." Cf.

(Powell, J., concurring in part

and dissenting in part);

(Marshall, J., joined by Brennan

and Stevens, JJ., dissenting in part). See generally 59 Am. Jur. 2d

Pardon and Parole § 90 (1987) ("Right to Statement of Reasons for

Denial of Parole" (collecting cases)).

matter of legal theory with respect to at least one of his alternative constitutional claims, and (2) appellant is then found by the District Court to have established the predicate facts supporting such claim, the District Court would conclude that appellant would be entitled to some form of equitable relief. Whether such hypothesized relief might properly encompass any of the several particularized types of relief sought in appellant's complaint need not be considered at this stage of this litigation.

-22- In his brief on appeal, appellant finds it "ironic" that

appellees should take "the position that a convicted felon is entitled

to greater due process protection from the parole board than a

decorated veteran is from the Rhode Island National Guard." We think,

however, that appellant's submission, while perhaps having some

rhetorical appeal, does not adequately assess the relative interests at

stake of, on the one hand, a person who seeks continuity in employment

and, on the other hand, one who seeks release from confinement. By

conflating, rather than distinguishing between, these two scenarios,

appellant's analysis appears to overlook the fundamental precept that

"[t]he applicability of the guarantee of procedural due process depends

in the first instance on the presence of a legitimate 'property' or

'liberty' interest within the meaning of the Fifth or Fourteenth

Amendment." Arnett v. Kennedy,

(1974) (Powell, J.,

concurring in part and concurring in the result in part).

Reasons for denying parole are required to be stated because

denial of parole is denial of the most basic "'liberty' interest." As

Justice Powell observed in Greenholtz,

, "[l]iberty from

bodily restraint always has been recognized as the core of the liberty

protected by the Due Process Clause from arbitrary governmental

action."

Appellant's interest is of a different sort. On the verge

of completing twenty years of military service - the great bulk of it

-23- as a commissioned RIANG officer - Major Wigginton wished to be one of

the twenty-year guard officers selected to continue in service (with,

indeed, some possibility of further promotion) pursuant to a program

under which - since there are "comparatively few higher level command

and staff positions"12 - only a portion of the twenty-year officers can

be selected for retention. Manifestly, what was at stake for Major

Wigginton was not a "'liberty' interest." In order to qualify for

procedural due process protection, Major Wigginton's hope for retention

would, therefore, have to be a "'property' interest." But in the

absence of an employment contract for a stated time period, or some

analogous hiring engagement contemplating a form of job tenure,13 Major

Wigginton had no cognizable property interest in continued employment

in RIANG - unless R.I. Gen. Laws § 30-3-13, the statute which underpins

appellant's first count, applies to appellant and vested in appellant

12 See supra note 1 and accompanying text. 13 Academic tenure is, of course, a widespread phenomenon, and abridgement of tenured employment not infrequently gives rise to litigation. See, e.g., Keyishian v. Board of Regents,

(1967); Keefe v. Geanakos,

(1st Cir. 1969) (speaking for this court, then-Chief Judge Aldrich observed: "Academic freedom is not preserved by compulsory retirement, even at full pay."). Tenure for a period of years is a standard concomitant of elective office, see Powell v. McCormack,

(1969); Bond v. Floyd,

(1966), and it is also a usual concomitant of those appointive offices that are intended not to be subject to direction by the executive branch. See Humphrey's Executor v. United States,

(1935); Marbury v. Madison,

("It is, then, the opinion of the Court . . . that the appointment conferred on him a legal right to the office for the space of five years.").

-24- a property right to hold his RIANG commission until age sixty. In

short, whether appellant has a viable due process claim under the

second count of his complaint depends, in the first instance, on the

answer to the questions of Rhode Island law with respect to the proper

construction of R.I. Gen. Laws § 30-3-13 that are central to

appellant's claim under the first count of his complaint - the

questions to which we now turn.14

B.

It is Major Wigginton's basic submission - key to the first

count of his complaint, and for the reasons we have just discussed, to

the second count as well - that R.I. Gen. Laws § 30-3-13 gave him a

property right, of which he could not be deprived without due process,

to retain his RIANG commission until age sixty. Such a

constitutionally protected property right to retain a public position

for a stated term arises when state law has conferred upon a public

position elements of continuity sufficient to support the conclusion

14 In saying that "whether appellant has a viable due process claim under the second count" depends on a determination of the proper construction of R.I. Gen. Laws § 30-3-13, we do not mean to suggest that if appellant's construction of the statute is correct, he necessarily will prevail on his second count claim. To prevail, appellant would have to establish that (1) his state law entitlement is strong enough to constitute a federally protected right, see text infra at note 15, and (2) by not being informed of the reasons for non- retention he was denied due process. Whether appellant's due process argument has merit need not be addressed unless appellant's contention that R.I. Gen. Laws § 30-3-13 conferred upon him a federally protected right is sustained.

-25- that, as a matter of federal law, the person asserting the due process

claim has "an enforceable expectation of continued public employment."

Bishop v. Wood,

(1976).15 In order to address Major

Wigginton's contention that the statute establishes such a property

right, it may be helpful to set forth once again the full text of the

statute:

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.

15 Cf. cases cited supra note 13. "The pretermination process due a government employee is a matter of federal law, see Rivera-Flores v. Puerto Rico Tel. Co.,

, (1st Cir. 1995), whereas the preliminary question whether a government employee possessed a protectable 'property right,' or a legitimate expectation of continued employment, is controlled by the employment contract or state law. See id." Ortiz-Piñero v. Rivera-Arroyo,

(1st Cir. 1996); accord Fireside Nissan v. Fanning,

(1st Cir. 1994). While the "preliminary question whether" an asserted right is a "protectable 'property right'" is "controlled by . . . state law" (which defines the ingredients and scope of the asserted right), whether the asserted right as "controlled by . . . state law" constitutes a "'property right'" of constitutional dimension is a federal question. See E.B. v. Verniero,

, 1106 n.27 (3d Cir. 1997).

-26- It seems apparent that the quoted statutory language

contemplates some form of continuity in office until age sixty for

those commissioned RIANG officers who are "officers of the staff corps

and departments." Appellant - an officer initially commissioned as a

Military Police Officer, later assigned as a Public Affairs Officer,

and ultimately asked to serve as an Education Officer - contends that

he was an officer of the "staff corps and departments." Appellees

contend that he was not. On cross-motions for summary judgment, the

District Court denied summary judgment in favor of appellant and

granted summary judgment in favor of appellees.

We will now consider the grounds for the summary judgment

rulings.

i.

With a view to elucidating the phrase "staff corps and

departments" - a phrase that appears to have had its genesis in Rhode

Island law in 1956, when a statutory code governing RIANG was enacted16

16 The phrase "staff corps and departments" appears in two other sections of the statutory code governing RIANG. (For the reader's convenience the phrase is printed in bold type):

The national guard shall consist of such number of federally recognized general officers, officers, warrant officers, and enlisted persons, duly commissioned, warranted, or enlisted therein, including officers and enlisted persons of the staff corps and departments, and organized as to branch or arm of service into such federally recognized units, organizations, corps, departments, or otherwise as shall be authorized by the laws of the United States and the regulations issued thereunder.

-27- R.I. Gen. Laws § 30-3-1.

Persons hereafter commissioned as officers of the national guard shall be selected from the following classes:

(1) Officers or enlisted persons of the national guard;

(2) Officers, active or retired, reserve officers, and former officers of the United States army, air force, navy, marine corps, or coast guard, enlisted men and former enlisted persons of the United States army, air force, navy, marine corps, or coast guard who have received an honorable discharge therefrom;

(3) Graduates of any of the United States military and naval academies;

(4) Graduates of schools, colleges, universities, and officers' training camps, where they have received military instruction under the supervision of an officer of the armed forces on active duty who certified their fitness for appointment as commissioned officers;

(5) For the technical branches or staff corps and departments, such other civilians as may be specially qualified for duty therein; and

(6) Or otherwise, as the above classes shall be changed or altered by the laws of the United States and the regulations issued thereunder.

R.I. Gen. Laws § 30-3-11.

Similar, but not identical, wording is to be found in the first sub- section (here, in bold type) of a statute dealing with the governor's authority to organize, and reorganize, units of the Rhode Island militia:

(a) The governor may organize, alter, increase, divide, annex, consolidate, reorganize, disband, or decrease any unit, organization, staff corps, and department whenever in his or her judgment the efficiency of the state militia will be thereby increased or to make the state conform to any table of organization or system of training prescribed by

-28- - the parties summoned experts:

Brigadier General (Retired) Thomas M. Frazer, former

Assistant Adjutant General for Rhode Island and former Deputy

Commanding General of RIANG, furnished an affidavit on Major

Wigginton's behalf. General Frazer stated that "[i]n my opinion the HQ

STARC position of Education Officer is a Staff position." With

respect to the meaning of R.I. Gen. Laws § 30-3-13, General Frazer

said:

This document and booklet called the Military Code of Rhode Island is an archaic writing and woefully outdated. However it is still utilized in current day fashion within the National Guard. I have no thought or idea what the writer was trying to convey to the reader and that thought can be argued into the future. It is my thought and opinion that the term "All commissioned officers of the staff corps and departments" was

the laws of the United States or the rules or regulations prescribed thereunder for the organization and training of the national guard.

(b) For that purpose, the number of commissioned officers, warrant officers and enlisted men in any unit, organization, staff corps, and department may be increased or diminished and the grades of these commissioned officers, warrant officers, and enlisted men may be altered to the extent necessary to conform thereto.

(c) No organization of the national guard shall be disbanded nor its minimum strength reduced except in conformity with the laws of the United States.

R.I. Gen. Laws § 30-2-9.

-29- and is referring to the various Staff Officers of the National Guard.

General Centracchio's expert was Colonel Rick Baccus, who

gave extensive deposition testimony. At the time of his deposition,

Colonel Baccus was a supervisory logistics management specialist in

RIANG; prior to that assignment he had served as RIANG's personnel

director. When asked "what is your definition of the term commissioned

officers of the states [sic] corps and departments in Rhode Island

General Law 30-3-13?," Colonel Baccus replied:

A. Since I wasn't involved in writing the law, it would be difficult for me to give you a specific definition, I can only surmise what I think the definition is, and, again, it's referring to some kind of specialty, a special staff position and that's where I only drew the analogy.

Q. But you really don't know, do you?

A. No, sir, because I was not involved with the law.

A subsequent colloquy was to the same effect:

Q. We have focused a lot on the meaning of the words staff corps, there's also the phrase in there Rhode Island General Law?

A. And departments.

Q. Do you attach any meaning to that phrase?

A. No, not at all. Again, sir, I do not know what the law, what the, you know, the authors of the law or what they were basing the previous law

-30- under. They may have carried that forward from previous law.

When asked about the meaning of "staff corps and departments" in R.I.

Gen. Laws § 30-3-1 (another provision of the statutory code governing

RIANG in which the phrase appears)17 Colonel Baccus responded:

To be honest, sir, because I was not involved with writing law, I'm not sure, there is no equivalent to today's terminology.

After noting that neither General Frazer nor Colonel Baccus

purported to be able to offer a coherent construction of "staff corps

and departments," the District Court ruled as follows:

Of course, in this case, it is incumbent on Major Wigginton to establish that he was a member of the "staff corps and departments." Even he cannot say with any conviction that he held such commission. In fact, although Major Wigginton at one time "believed" he was a member of the staff corps, he now admits that he was "never an officer of a corps identified as staff corps officer." On this basis Major Wigginton's substantive due process claim must fail.

Here we part company with the District Court. On cross-

motions for summary judgment, a plaintiff loses if he cannot produce

evidence tending to establish a fact that, under the governing law, the

plaintiff is required to prove in order to make out his cause of

action. But that was not the situation at the point that the District

Court granted summary judgment against appellant and in favor of

appellees. When the District Court granted summary judgment, no

17 For the text of § 30-3-1, see supra note 16.

-31- determination had been arrived at as to what the governing law was.

That is to say, neither the meaning of the phrase "staff corps and

departments" as used in R.I. Gen. Laws § 30-13-3, nor the extent of the

rights created by that statute if applicable, had been judicially

resolved. And under those circumstances, there was no way to tell

whether the evidence adduced by Major Wigginton would, if credited by

a fact-finder, suffice as a matter of Rhode Island law to present the

federal constitutional question whether state law rights had been

abridged without due process.18 Accordingly, it was error to grant

summary judgment on the first count in favor of General Centracchio and

the State of Rhode Island. And it would, a fortiori, have been error

to grant summary judgment in favor of Major Wigginton. To prevail on

his motion for summary judgment, it would have been necessary for Major

Wigginton to have established (1) that, as a matter of Rhode Island

law, at the time of his discharge from RIANG, he (a) came within the

embrace of the phrase "staff corps and departments," as used in R.I.

Gen. Laws § 30-3-13, and (b) was, therefore, entitled (in the absence

18 The District Court found it significant that, "although Major Wigginton at one time 'believed' he was a member of the staff corps, he now admits that he was 'never an officer of a corps identified as staff corps officer.'" But neither the fact that Major Wigginton "at one time 'believed' he was a member of the staff corps" nor the fact that he subsequently acknowledged "that he was 'never an officer of a corps identified as staff corps'" could be a datum of any ascertainable legal significance prior to a time at which the term "staff corps," as used in the statutory phrase "staff corps and departments," would acquire, through judicial construction, some concrete legal meaning. Such a time has not yet arrived.

-32- of resignation, disability, or dismissal for cause) to continue as a

RIANG officer until age sixty;19 and (2) that, as a matter of federal

law, (a) his state law entitlement to retain his RIANG position until

age sixty constituted "an enforceable expectation of continued public

employment," Bishop v. Wood, supra,

, and (b) he had

been deprived of that constitutionally protected state law entitlement

without due process of law.

Prior to a construction by the District Court of R.I. Gen.

Laws § 30-13-3, neither of the cross-motions for summary judgment was

ripe for disposition.

ii.

As we have just observed, the District Court did not arrive

at a dispositive construction of R.I. Gen. Laws § 30-3-13. We can do no

better.

The general thrust of the first two sentences of the statute

is apparent. Those persons who are "commissioned officers of the staff

corps and departments . . . shall hold their positions until they 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." Major Wigginton - a

19Such entitlement would appear substantial enough to support what the Supreme Court has characterized as "an enforceable expectation of continued public employment." Bishop v. Wood, supra,

. See supra note 15.

-33- commissioned officer of RIANG who had not reached age sixty, and who

had not been retired by reason of resignation or disability, or for

cause - would appear (absent any other contingencies attached to Major

Wigginton's continued employment by R.I. law) to be within the

protective embrace of the statute if he was an officer of the "staff

corps and departments." But what that latter phrase means remains

unclear. The first sentence of the statute - "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." -

makes it plain that the phrase "staff corps and departments" connotes

a cohort inclusive of, but broader than, "chaplains, officers of the

judge advocate general's corps, and medical officers." How much

broader? Broad enough to include Major Wigginton, an officer

originally commissioned in the Military Police, later assigned as a

Public Affairs Officer, and ultimately acting as an Education Officer?

We derive no useful textual guidance from the two other provisions of

the statutory code governing RIANG that employ the phrase "staff corps

and departments."20 Appellant and appellees, in their submissions to

20 See supra note 16.

It may be noted that the laws of Massachusetts governing the Massachusetts guard provide that an officer of the "state staff" is entitled to "hold his position until he reaches the age of sixty-five years unless separated prior to that time by resignation, disability, or for cause by a court-martial legally convened for that purpose."

-34- this court, have been unable to adduce any useful legislative history

of R.I. Gen. Laws § 30-3-13 and we have found none. Further, the

parties have not cited any pertinent decisions construing R.I. Gen.

Laws § 30-3-13; and our research confirms that no court (whether a

Rhode Island court, a federal court, or a court of another state) has,

in a reported opinion, construed "staff corps and departments" as

utilized in R.I. Gen. Laws § 30-3-13 (or, indeed, as utilized in either

of the two other provisions of the statutory code governing RIANG that

employ the phrase).

Thus, what we have before us is a Rhode Island statute which

is a tabula rasa. Moreover, the state military code of which the

statute is a part is a very special kind of state legislative

enactment, for the code governs the Rhode Island aspects of a joint

state-federal enterprise of great importance - the Rhode Island Army

National Guard. Under these circumstances, in order to achieve a

responsible resolution of the issues presented by this pending appeal,

it plainly would be better to have a current and authoritative

construction of R.I. Gen. Laws § 30-3-13 by the Rhode Island judiciary

than to have a conjectured prophecy by this court of what Rhode

Island's courts might be expected to rule at some future time.

Happily, the Supreme Court of Rhode Island has in place a procedure

Mass. Gen. Laws, ch. 33, § 15(a). However, § 15 goes on to identify, by specific military designation, the several officers who compose the "state staff."

-35- pursuant to which it "may answer questions of law certified to it by .

. . a Court of Appeals of the United States . . . when requested by

the certifying court if there are involved in any proceeding before it

questions of law which may be determinative of the cause then pending

in the certifying court and as to which it appears to the certifying

court there is no controlling precedent in the decisions of this

court." Rhode Island Supreme Court Rules, Art. I, Rule 6, § 1. The

quoted rule precisely describes the circumstance in which this court

finds itself. In the pending appeal, what may prove determinative of

the cause are answers by the Supreme Court of Rhode Island to two

questions of Rhode Island law framed by the facts previously set forth

in this opinion:

1. At the time Major Wigginton was discharged from RIANG, was he an officer of the "staff corps and departments" within the meaning of R.I. Gen. Laws § 30-3-13?

2. If the answer to Question 1 is "Yes," does that signify that, pursuant to R.I. Gen. Laws § 30-3-13, Major Wigginton was (in the absence of resignation, disability, or dismissal for cause) therefore entitled to continue as a RIANG officer until age sixty, or would Rhode Island's statutory and/or decisional law attach any other contingency to Major Wigginton's continued status as a RIANG officer?

Accordingly, by an appropriate Certification Order

accompanying this opinion, we are certifying these questions of Rhode

Island law to the Supreme Court of Rhode Island.

-36-