Appeal from a judgment of the District Court for the District of Connecticut, M. Joseph Blumenfeld, Judge, dismissing a civil rights action against the Governor of Connecticut, the Adjutant General of Connecticut, and the Secretary of the Army, for failure to state a claim. Affirmed in part; reversed in part, and remanded.
Lumbard, Mansfield, and Van Graafeiland, Circuit Judges.
James M. MacFarlane, a major in the United States Army Reserve and a former member of the Connecticut Army National Guard (CONNARNG), appeals from the January 28, 1982 judgment of the District Court for the District of Connecticut, Blumenfeld, J., dismissing his civil rights action against the Governor of Connecticut, the Adjutant General of CONNARNG, and the Secretary of the Army. MacFarlane contends that the state defendants denied him rights guaranteed by the First and Fourteenth Amendments and by state and federal law, in denying him an appointment as a stock control officer in CONNARNG. He alleges further that the Secretary of the Army violated the Constitution and federal statutes by failing appropriately to sanction the illegal practices of the state defendants. We agree with Judge Blumenfeld that MacFarlane has not stated a claim under the equal protection or due process clauses of the Fourteenth Amendment, or under state or federal statutes, and we affirm the dismissal of those claims. We also affirm, though not entirely for the reasons relied upon by Judge Blumenfeld, the dismissal of MacFarlane's claims against the Secretary of the Army. However, we believe that Judge Blumenfeld misread the complaint in dismissing MacFarlane's First Amendment claim. As we read the complaint, it does state a First Amendment claim against the state defendants. We therefore reverse the decision of the District Court, and remand the case for further proceedings, with respect to that claim and those defendants only.
Because this appeal is taken from a judgment of dismissal, we must accept as true statements of fact in the plaintiff's complaint. Cooper v. Pate, 378 U.S. 546, 12 L. Ed. 2d 1030, 84 S. Ct. 1733 (1964).
MacFarlane began his military career in 1958 when he enlisted in CONNARNG. That same year he graduated from CONNARNG's Officer Candidate School and was commissioned a second lieutenant. In 1959 MacFarlane went to Flight School and became a pilot while still a member of CONNARNG. In 1962 he transferred to the United States Army Reserve and joined Air America, a civilian organization closely connected to the United States military effort in Southeast Asia. As a member of Air America MacFarlane flew in support of United States military and surveillance operations in Vietnam, Laos, and Cambodia. In 1967 MacFarlane transferred to the New York Army National Guard as a first lieutenant in the 42nd Aviation Company. In 1968 MacFarlane sought transfer to the 162nd Transportation Battalion of CONNARNG. The transfer was delayed because Major General Donald Walsh, then the Adjutant General of the state of Connecticut, erroneously believed that MacFarlane had "buzzed" a nuclear submarine at the New London, Connecticut submarine base. However, the transfer was accomplished and on or about September 9, 1968 MacFarlane rejoined CONNARNG. On September 24, 1969 MacFarlane received an Officer Efficiency Report (OER) which "unfairly" criticized his performance of his duties. Although MacFarlane appealed the OER through appropriate Army channels, at this time he transferred from CONNARNG into an aviation unit of the United States Army Reserve. Both CONNARNG and the Reserve unit based their aircraft and equipment at Brainard Field, near Hartford, Connecticut. During the period that MacFarlane flew for the Reserve from Brainard Field, CONNARNG's chief technician, John Gore, held him responsible for certain damage that had occurred to a CONNARNG hangar. As a result of Gore's report MacFarlane was relieved of flying status for one month. MacFarlane remained in the Army Reserve on active status until August 2, 1978 and advanced through promotions to the rank of major. He is presently assigned, in an inactive status, to the Army Personnel and Administrative Center in St. Louis, Missouri.
On February 7, 1980 MacFarlane wrote to Connecticut Governor Ella Grasso to complain of the 1969 OER and the allegation that he had buzzed a submarine in 1968. Governor Grasso referred MacFarlane's letter to the Adjutant General for the state of Connecticut, Major General John Freund. In several letters to General Freund, MacFarlane complained of the treatment he had received from the CONNARNG technician at Brainard Field, John Gore. General Freund reviewed MacFarlane's file and assured him that the buzzing and hangar incidents had not been recorded on his record and that his 1969 OER, while far from outstanding, was also not poor. However, the General informed MacFarlane that the passage of time made it impossible for him independently to review the accuracy of the OER. Dissatisfied with this response, MacFarlane on June 1, 1980 wrote to the Inspector General of the First United States Army and complained that General Freund did not appear to be seriously interested in addressing his charges. On June 2, 1980 MacFarlane wrote a similar letter of complaint to the Office of the Army Inspector General in Washington, D.C. He also made an oral complaint to an official of the National Guard Bureau in Washington.
On June 17, 1980, MacFarlane applied for an open position as stock control officer in the Aviation Classification Repair Activity Depot (AVCRAD) battalion of CONNARNG at Groton, Connecticut. The commanding officer of the CONNARNG depot forwarded MacFarlane's application to the office of the Adjutant General. According to MacFarlane, on June 24, 1980, shortly after receiving MacFarlane's application, Adjutant General Freund, John Gore (then a Brigadier General and the Assistant Adjutant General for the state of Connecticut), and several other officers held an unscheduled meeting and filled all of the vacant positions at the Groton depot. That same day the commanding officer of the Groton depot informed MacFarlane by letter that he would not be appointed as stock control officer because CONNARNG followed a policy of promoting from within. MacFarlane complained of the rejection to the Inspector General of the First Army, but to no avail.
On November 26, 1980 MacFarlane filed a complaint in the District Court for the District of Connecticut, naming as defendants the Governor of Connecticut, Ella Grasso; the Connecticut Adjutant General, Major General John Freund; the Secretary of the Army, Clifford Alexander, Jr.; and the Chief of the National Guard Bureau, Lieutenant General La Vern E. Weber. MacFarlane alleged that the state defendants violated federal statutes, and violated his rights to due process and freedom of speech, by denying him the position at Groton. He alleged that the federal defendants had committed independent statutory and constitutional violations by continuing to fund CONNARNG after CONNARNG violated his rights. On May 13, 1981 Judge Blumenfeld granted the defendants' motions to dismiss for failure to state a claim.
On June 5, 1981 MacFarlane filed a motion to vacate the judgment of dismissal, entered on May 26, 1981, and for leave to amend his complaint. Judge Blumenfeld granted this motion on August 12, 1981 and that same day MacFarlane filed an amended complaint. The amended complaint named as defendants the four officials named in the original complaint*fn1 and repeated MacFarlane's statutory and freedom of speech claims. The amended complaint additionally alleged that CONNARNG's internal promotion policy violated federal laws and regulations and the due process and equal protection clauses of the Fourteenth Amendment. As relief MacFarlane requested the issuance of a writ of mandamus to the state defendants directing either his appointment as stock control officer or a fair hearing on his application, and injunctions prohibiting CONNARNG from using a policy of internal promotion and the Secretary of the Army from funding CONNARNG until CONNARNG came into compliance with the law. He also requested damages from the state defendants, including backpay, attorney fees, and $500,000 punitive damages. On January 27, 1982 Judge Blumenfeld issued a decision dismissing the amended complaint. The Judge ruled that MacFarlane had failed to identify any statutes or regulations prohibiting a state National Guard from adopting a policy of internal promotion. He rejected MacFarlane's due process and equal protection claims, finding that MacFarlane did not have an entitlement to the CONNARNG position and that the internal promotion policy was rationally related to Connecticut's legitimate interest in maintaining morale within CONNARNG. Relying upon Mt. Healthy City School Dist. Bd. of Educ. v. Doyle, 429 U.S. 274, 50 L. Ed. 2d 471, 97 S. Ct. 568 (1977), the Judge held that MacFarlane had not stated a First Amendment claim because under its internal promotion policy CONNARNG would have rejected MacFarlane's application without regard to his speech. The Judge noted that MacFarlane did not allege that CONNARNG had adopted its internal promotion policy in retaliation for his speech. MacFarlane now appeals from the judgment of dismissal entered on January 28, 1982.
We are well aware that the judiciary must be careful, on appropriate occasions, to defer to the decisions of military authorities. See Orloff v. Willoughby, 345 U.S. 83, 93-94, 97 L. Ed. 842, 73 S. Ct. 534 (1953). However, we see nothing to suggest that judicial review of MacFarlane's claims against the state and federal defendants would measurably impair military functions or would invade provinces exclusively reserved to military discretion or expertise. We therefore proceed to consider in order the due process, statutory, equal protection, and First Amendment claims brought against the state defendants under 42 U.S.C. § 1983 (1976), and the derivative claims against the federal defendant.
MacFarlane claims that under federal law he had an entitlement to the CONNARNG vacancy. He accordingly argues that CONNARNG's rejection of his application without a hearing denied him due process. This claim is without merit.
The requirements of procedural due process apply only where there has been a deprivation of an interest encompassed by the Fourteenth Amendment's protection of liberty and property. Board of Regents v. Roth, 408 U.S. 564, 569, 33 L. Ed. 2d 548, 92 S. Ct. 2701 (1972). Ordinarily, an applicant for government employment does not have a property interest in the position he seeks. To have a property interest in a government position, the applicant "clearly must have more than an abstract need or desire for it. He must have more than a unilateral expectation of it. He must, instead, have a legitimate claim of entitlement to it." Roth, 408 U.S. at 577 (emphasis added). Property interests are created by sources of law outside the Constitution; MacFarlane claims that in his case federal statutes and policies applicable to the state National Guards gave him a "legitimate claim of entitlement" to the job with CONNARNG. We conclude, however, that the statutes and policies cited by MacFarlane did not create an entitlement.
In support of his due process claim MacFarlane directs this court's attention to 32 C.F.R. § 564.3 (1981), paragraph 2-9 of National Guard Regulation 600-100 (1980), and Conn. Gen. Stat. §§ 27-14 and 27-49 (West 1975). Section 564.3 of 32 C.F.R. and National Guard Regulation 600-100 define the situations in which an officer of a state Army National Guard will be federally recognized under 10 U.S.C. §§ 591 & 3351 as an officer of equivalent rank in the United States Army Reserve with assignment to the Army National Guard of the United States (ARNGUS). Under subsection (h)(1) of 32 C.F.R. § 564.3, and paragraph 2-9(a) of National Guard Regulation 600-100, an individual who is already an officer of the Army Reserve, and who is appointed to be an officer of a state Army National Guard, may be federally recognized as an officer of ARNGUS. Specified classes of persons who are not presently officers of the Army Reserve also may qualify for federal recognition under 32 C.F.R. § 564.3 and National Guard Regulation 600-100. Section 27-14 of the Connecticut General Statutes provides that Connecticut's governor is to be the commander-in-chief of the state National Guard. Section 27-49 requires the governor to appoint National Guard officers according to federal standards. In effect, section 27-49 requires the governor to appoint CONNARNG officers from among ...