USCA1 Opinion

UNITED STATES COURT OF APPEALS

UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
FOR THE FIRST CIRCUIT
____________________
No. 92-2338
OSCAR CHARLES,
Plaintiff, Appellant,
v.
HONORABLE DONALD RICE, SECRETARY OF THE
UNITED STATES AIR FORCE, ET AL.,
Defendants, Appellees.
____________________
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Carmen C. Cerezo, U.S. District Judge]
___________________
____________________
Before
Cyr, Circuit Judge,
_____________
Bownes, Senior Circuit Judge,
____________________
and Stahl, Circuit Judge.
_____________

____________________

William Ramirez-Hernandez, with whom Paula Sciabarrasi, Varga

__________________________
__________________ _____
Ramirez Law Office, and Charles S. Hey-Maestre, Sabana Education
__________________
______________________
Civil Rights Project, were on brief for appellant.
Michael S. Raab, Attorney, Civil Division, Department of Justi
_______________
with whom Guillermo Gil, United States Attorney, Frank W. Hung
______________
______________
Assistant Attorney General, Anthony J. Steinmeyer, Attorney, Ci
_______________________
Division, Department of Justice, and Col. Raul F. Barbara, Lt. C
_____________________ _____
Conrad Von Wald, Major Carla S. Walgenbach, and Major Patricia
________________
__________________________
_______________
Kerns, Of Counsel, Department of the Air Force, General Litigat
_____
Division, were on brief for appellees Honorable Donald Rice, Secret
of the

United States Air Force, and Lt. General Conaway, Chief, Natio
Guard Bureau.
Carlos Lugo-Fiol, Deputy Solicitor General for the Commonwea
________________
of Puerto Rico, with whom Pedro A. Delgado-Hernandez, Solici
____________________________
General, was on brief for appellees William Miranda-Marin,
Adjutant General of the Commonwealth of Puerto Rico, Colonel Manuel
Guzman, of the Puerto Rico Air National Guard, and Colonel Gilbe
Colon, Personnel Officer, Puerto Rico Air National Guard.

____________________
July 14, 1994
____________________

BOWNES,
BOWNES,

Senior Circuit Judge.

Senior Circuit Judge.
_____________________

After

more than

twenty years of service in the Puerto Rico Air National Guard

(PRANG)

and

employment

as

National

Guard

technician,

plaintiff-appellant, Oscar Charles,

tested positive for

the

Human Immunodeficiency

and was discharged

from

Virus (HIV)

PRANG and from his technician job.

under

42

U.S.C.

reinstatement,
Secretary
United

1983

and back

seeking

pay from

of the United States

States National

Plaintiff filed an action

declaratory

defendants-appellees, the

Air Force, the

Guard

Chief of the

Bureau, PRANG,

the

General of Puerto Rico, and two PRANG officers.

court reached

the merits and

ruled in favor

Adjutant

The district
of defendants.

See Doe v. Rice, 800 F. Supp. 1041 (D.P.R. 1992).

___ ___
____
the decision with

relief,

respect to plaintiff's claim

We vacate
for back pay

for his technician job, but affirm the decision on the merits
in all other respects.
I.
I.
BACKGROUND
BACKGROUND
__________
National Guard
National Guard
______________
Before

stating the

facts immediately

relevant to

plaintiff's case, we provide the following description of the

National

Guard.

The Guard

is a

hybrid state

and federal

-22

organization.1

While a

part of

the

Armed Forces

of the

United States, the Guard

occupies a distinct role in the federal
structure that does not fit neatly within
the scope of either state or national
concerns.
In each state the National
Guard is a state agency, under state
authority and control. At the same time,
federal law accounts, to a significant
extent, for the composition and function
of the Guard. Accordingly, the Guard may
serve the state in times of civil strife
within its borders while
also being
available for
federal service during
national emergencies.
Knutson
_______

v. Wisconsin Air Nat'l Guard, 995 F.2d 765, 767 (7th

_________________________

Cir.), cert. denied, 114 S. Ct. 347 (1993).

_____ ______
The governor and his or her appointee, the Adjutant
General,

command the Guard in

each state.

See, e.g., P.R.

___ ____

Laws Ann.
The

2058-2059;

see also 32 U.S.C.

___ ____

Defense Department, the Secretaries of

Force,
and

tit. 25,

and the National

issue orders

Guard.
federal

to

32 U.S.C.
regulations

Guard Bureau

States

risk

the Army and Air

prescribe regulations

organize, discipline,
110.

314.

and govern

that fail to

forfeiture

of

the

comply with

federal

funds

____________________
1. National Guard units may be established in the states,
territories, Puerto Rico, and the District of Columbia. 32
U.S.C.
101(6).
For the sake of convenience, we refer to
all these entities as states. The differences between Puerto
Rico
and a
state
are immaterial
in this
context.
Penagaricano v. Llenza, 747 F.2d 55, 56 n.1 (1st Cir. 1984),
____________
______
overruled on other grounds by Wright v. Park, 5 F.3d 586, 591
_________ __ _____ _______ __ ______
____
(1st Cir. 1993).
-33

allocated to organize, equip,

and arm state Guards.

Id.
___

101, 107, 108, 501; Knutson, 995 F.2d at 767.

_______
Every

member of

the state

Air National

Guard is

also enlisted

in a

National Guard of
the Ready

federal

organization known

the United States (ANGUS),

Reserves of the

269,

8079, 8261;

Armed Forces, which

32 U.S.C.

Air

a component of

when the Guard is called into federal service.

261,

as the

is activated
10 U.S.C.

101, 301;

Perpich v.
_______

Department of Defense, 496 U.S. 334, 345-46 (1990).

_____________________
Many Guard members,
only part-time,
weekends

and

participate
civilian
federal
Adjutant

by participating in drills
in the

summer.

in those

jobs

so-called "weekenders,"

with

their

civil servants,
General.

maintain membership

32

for federal employment.

but

units.

hired and
U.S.C.

in the

and maneuvers on

National Guard

activities,

serve

technicians

also hold

Guard

full-time

technicians

supervised by
709.

the state

Technicians

state Guard to

are

must

remain qualified

Id.
___

Plaintiff's Separation from Service

Plaintiff's Separation from Service
___________________________________
Plaintiff enlisted
as

a Guard technician two

in PRANG in 1967
years later.
salaries:

and was hired

From 1969 until he

was

discharged, he drew two

the

other from the federal government for his services as an

aircraft

maintenance technician.

positive

for

HIV

in

routine

-44

In

one

from PRANG, and

June 1990,
screening

of

he tested
military

personnel.

That

result was

confirmed by a

second test

in

June or early July 1990.

Plaintiff received an order on September 21,
stating that

he had been honorably discharged

1990,

from PRANG on

September 17, 1990, and transferred from the Ready Reserve to

the

Standby Reserve.

Guard Regulation
the

That

order was based

on Air National

(ANGR) 39-10, which states

that members of

Guard testing positive

the Standby

Reserve

available.

ANGR 39-10

for HIV shall

unless a
8-25.

"nondeployable

position"

is

"Deployability," according to

the record, refers to the ability

world for duty.

be transferred to

to be sent anywhere in the

The district court heard testimony that most

Guard positions are classified as deployable.

On October

16, 1990,

plaintiff was

notified that

his eligibility for employment as a technician ended

was discharged from the Guard.

when he

Plaintiff was advised that he

would be separated from federal employment after November 19,

1990.
Plaintiff's requests for revocation of these orders
were unavailing.

In addition, his application for disability

benefits was

denied because he was

Thereafter,
States

District

not physically disabled.

plaintiff filed

Court

for

suit

the District

in
of

alleging that ANGR 39-10 was invalid, and that

from

PRANG and

from

his technician

the

United

Puerto

Rico,

his discharge

job violated

National

-55

Guard

regulations,

principles of
sought

due process

reinstatement

civilian jobs, as
39-10

Defense

and

well as a

was invalid.

his case

policy,

and

and equal protection.

back

pay for

his

the

Plaintiff

military

declaratory judgment that

After prevailing

skirmishes,2 plaintiff
court decided

Department

and
ANGR

in several

pretrial

was ultimately unsuccessful

when the

on the

merits.

Plaintiff

remained

asymptomatic at the time of trial.

Issues
Issues
______
The issues
decision

that ANGR

on appeal arise from

39-10

was valid,

the trial court's

and that

plaintiff's

separation from PRANG

violate

due process

addition

to

ANGR 39-10

and

assailing

findings, plaintiff
whether the

and from his federal

lack of
and

equal protection
several

of

the

position did not

principles.
court's

raises the following legal

a hearing

his right

to

procedural due

factual

issues:

upon his discharge

In

[1]

violated

process;

[2]

whether ANGR 39-10 conflicted with Defense Department policy;

[3]

whether

ANGR

39-10

violated

his

right

to

equal

____________________
2. The district court issued interlocutory orders that
plaintiff's case was justiciable, and that plaintiff was not
required to seek relief from the Air Force Board for the
Correction of Military Records prior to filing his civil
suit. Those issues have not been briefed by the parties on
appeal, and we do not address them in this case. For the
same reason, we do not address whether defendants can be said
to have acted under color of state law in discharging
plaintiff.
-66

protection;

and

[4] whether

he was

before a medical board.

II.
II.

entitled to

a hearing

MERITS
MERITS
______
Regulations
Regulations
___________
Plaintiff argues
39-10 in discharging him.

that PRANG failed to

follow ANGR

At the time of the discharge, that

regulation provided in pertinent part:

Members [of the Air National Guard] not
entitled to military medical health care
who display serologic evidence [of HIV
infection] will be transferred to the
Standby Reserves if they cannot be used
in a non-deployable position.
These
members will be referred to their private
physicians
for
medical
care
and
counseling.
ANGR

39-10

8-25(b).

Plaintiff does not

argue that PRANG

lacked the authority to discharge him once he was transferred

to the Standby Reserve.
PRANG

did not follow

Rather, plaintiff's argument is that

the procedures required

by ANGR 39-10

when he was transferred to the Standby Reserve.

The court
PRANG

found that plaintiff was discharged from

and transferred

to

the Standby

Reserve after

PRANG

conducted an unsuccessful search for a nondeployable position

compatible with plaintiff's civil
the findings for clear
heed

technician job.

error, Fed. R. Civ. P.

to the district court's superior

-77

We review

52(a), paying

position to gauge the

credibility

of witnesses.

Dedham Water Co.

_________________

v. Cumberland
__________

Farms Dairy, Inc., 972 F.2d 453, 457 (1st Cir. 1992).
_________________
In this case, we find no error in the determination
that a
an

PRANG personnel officer, Major

adequate--but ultimately

Urutia, had conducted

fruitless--search from

July or

August of 1990 into 1991 for a vacant, nondeployable position

for plaintiff.
position
units

and

extended
took

environmental,
testified

Urutia testified that the search for a vacant

beyond plaintiff's
into

consideration

and electrical

own

unit

into other

plaintiff's

systems

tactical,

expertise.

Urutia

that she was unable to find a vacant nondeployable

military position compatible with plaintiff's qualifications.

A unit manning document
the

testimony

of

Julio

compiled in August 1990, as

Godreau

Marrero,

an

well as

officer

in

plaintiff's squadron, corroborated Urutia's testimony.

The record contains two statements regarding vacant
nondeployable

positions:

one

witness stated

heard--but was

unable to verify--that a

available, and

another witness

that he

had

cook's position was

testified that he

had heard

that

switchboard operator

December

1991.

position

was

vacant in

late

Even if we were to assume that these hearsay

statements were reliable, but

___
n.7 (describing

one of

cf. Doe, 800 F. Supp.

___ ___

the statements as

at 1047

"vague hearsay"),

there is nothing in the record indicating that either job was

compatible

with

plaintiff's

position

as

an

aircraft

-88

maintenance
district

technician.

court's

Plaintiff

finding

that

has not

the

Air

challenged the
Force

considers

compatibility between a Guard member's military and

technician positions necessary.
ample support in the record
that

no suitable,

Consequently,
PRANG

we

ANGR 39-10

Id. at 1047 & n.6.

___

We find

for the district court's finding

nondeployable
conclude that

and transfer to

civilian

positions were
plaintiff's

the Standby

available.

discharge from

Reserve did

not violate

8-25.
Plaintiff

accompanying

his

next attacks
discharge

as

the

absence of

violative

of

a hearing

ANGR

39-10.

According

to

plaintiff,

guaranteed him a hearing.

paragraph

1-23

of

ANGR

39-10

That paragraph provided:

Unless otherwise indicated, airman [sic]

recommended for discharge under [ANGR 3910] will be offered an opportunity for
administrative
discharge
board
[procedures] . . . .
ANGR 39-10

1-23.

Prior to

plaintiff's discharge, however,

ANGR 39-10 was amended as follows:

Effective immediately [August 10, 1990,]
_________________________________________
members processed [in accordance with]
_________________________________________
ANGR
39-10, para 8-25
will not be
_________________________________________
notified nor offered an opportunity for
_________________________________________
administrative
discharge
board
_________________________________________
procedures.
The upcoming revision of
_______________
ANGR 39-10 will indicate these cases will
be
administered
through
appropriate
medical channels.
(Emphasis added.)

-99

Citing Nicholson
_________

v. Brown, 599 F.2d

_____

639, 648 (5th

Cir. 1979), for the proposition that an agency's "application

to

a case

of

new principles

deciding that case

may be

amount to an abuse" of
amendment was invalid

announced

so tinged with

course

of a

course

of

unfairness as

to

discretion, plaintiff argues that the

as to him.

amendment became effective after

we disagree that it

in the

While

we agree that

he tested positive for HIV,

constituted a new rule developed

proceeding

amendment to ANGR 39-10

the

affecting plaintiff.

in the

Rather,

the

was procedural, not substantive, and

became effective before plaintiff's discharge

was processed.

"The

at

[procedural]

regulations

administrative proceedings
effect

Cir. 1984); accord

______
1028

take place

at some earlier time

the action occurred."

in

force

govern, not

when the events

the

time

those in

giving rise to

Chilcott v. Orr, 747 F.2d 29,

________
___

34 (1st

Alberico v. United States, 783 F.2d 1024,

________
_____________

(Fed. Cir. 1986).

Accordingly, the

amendment to ANGR

39-10 deleting the right to an administrative hearing applied

to plaintiff's case.
Plaintiff

attempts

to

impugn

the

amendment

by

arguing that it is analogous to a bill of attainder, and that

it was never formally adopted.

A bill of attainder

is a law

that inflicts punishment upon identifiable members of a class

without providing

a judicial trial.

Nixon v. Administrator
_____
_____________

of Gen. Servs., 433 U.S. 425, 468-69 (1977).

______________

-1010

Plaintiff's
record.

Captain Robinson,

responsible for
he proposed
where the

are

unsupported

unnecessary procedures

individual's HIV status was

undisputed, and where

no nondeployable positions available.

further

determination

According

a nondeployable position were available

procedures be

warranted

of whether the

with the duties of

the

39-10, testified that

1989 to eliminate

to Robinson, only if

by

the National Guard Bureau officer

the amendment to ANGR

it in

there were

would

allegations

to

make a

HIV infection

that position.

An

medical

would interfere

administrative board,

however, could not make such an evaluation because it lacks a

medical faculty.
entitled

to

individual
tests.
did not

And because Guard members are generally not

military
would

medical

have to

pay

health
for

care,

the

any additional

infected
medical

It is undisputed that plaintiff's status in the Guard

entitle

him

to military

testified that his superiors

health

care.

Robinson

approved the amendment and that

it became effective on
evidence

thus

approved,

indicates

general

nonpunitive

purpose

procedures.

See
___

argument

that

affecting

August 10, 1990.

that

policy
of

The

uncontradicted

the amendment

change, designed
eliminating

Alberico,
________

was
to

783 F.2d

at

service

duly-

effect

unnecessary,
1028

generally-applicable amendment

plaintiff's

the

costly

(rejecting

of regulation

record constituted

bill

of

amendment was "certainly inspired

by

-1111

attainder, even though

his case").

HIV Policy
HIV Policy
__________
Plaintiff's

next

argument is

violated Defense Department policy.

plaintiff's argument.
policy

statement from

First,
the

Force, regarding active duty

___________

that

his discharge

There are two prongs to

plaintiff quotes the following

Defense Department

and the

Air

personnel infected with HIV, in

an effort to prove that ANGR 39-10 conflicted with Department

policy:
Individuals with serologic evidence of
HIV infection and who show no evidence of
clinical illness or other indication of
immunologic
or neurologic
impairment
related to HIV infection, shall not be
_____________
separated
solely
on
the basis
of
_________________________________________
serologic evidence of HIV infection.
____________________________________
(Emphasis

added.)

statement to

Plaintiff's attempt

undermine

ANGR 39-10

to use

that policy

is unavailing,

however,

because he was a reservist, not on active duty.

There
in each

of the

is a provision regarding reservists with HIV

memoranda containing that

policy statement.

The Defense Department policy states that "the Secretaries of

the

Military Departments

Reserves]

with

nondeployable
readiness."

serologic
units

or

Air

Force

may restrict
evidence
positions
policy,

of

individuals [in
HIV

the

infection

for

purposes

in

turn,

of

states

to

force
that

reservists "shall be transferred to the Standby Reserve, only

-1212

if

they

cannot be

utilized in

and that

the decision

Reserve,"
Selected

Reserve

must

take

personnel [with HIV] shall

units

and

positions."

separated solely

he

tested

regarding fitness

into

account

that

for the
"military

this

case, plaintiff

was

not

his

HIV condition.

He

was

of

transferred to the Standby

because

[i.e., Ready]
____

only be assigned to nondeployable

In

because

the Selected

Reserve and discharged from PRANG

positive

for

HIV

and

there

were

no

compatible, nondeployable positions available.

The second
the

Secretary

discretion

in

nondeployable
provided

of

prong of plaintiff's
the

Air

Force

restricting
positions.

the Secretary

allegedly

reservists
A

Defense

with the

restriction "for purposes of

argument is
abused

his

HIV

to

with

Department

authority to

force readiness."

that

policy

make such

According to

plaintiff, the restriction is groundless because persons with

HIV can lead normal lives.
Our standard of review of decisions committed to an
agency's

discretion is

invariably

England Legal Found. v.

_____________________
157, 169 (1st
such

as the

issue, courts

See
___

Massachusetts Port Auth.,

________________________

Cir. 1989).

And in the

Secretary's, in which
must be

deferential.

New
___

883 F.2d

context of a decision

"force readiness"

especially circumspect.

is at

The Supreme

Court has stated that "it is difficult to conceive of an area

of

governmental

activity

in

which the

courts

have

less

-1313

competence."

Gilligan v. Morgan, 413 U.S. 1, 10 (1973); see

________
______
___

also Chilcott, 747 F.2d at 32 ("Interference by the judiciary

____ ________
with the administration of

the military would undermine this

nation's ability to maintain a disciplined and ready fighting

force.").
The record
that
the

provides ample support for

the Secretary did not

policy

underlying

Reserve (including

that civilians

demands

bear on

"whole

reason for

"force
being

generally outside of the

at 1045.
with

abuse his discretion in adopting

ANGR

39-10.

The

Air

the National Guard) makes

members

our finding

might not

demands of its

normally face,

readiness."
is to

Force Ready

be

The National
ready to

United States."

be

Doe, 800
___

and these
Guard's
deployed,
F. Supp.

There is ample support for the finding that persons

HIV who are asymptomatic are

not deployable because of

their restricted capacity to be immunized, their inability to

donate

blood,

symptoms.

and

Id.
___

the

unpredictability of

the

It follows that force readiness

when nondeployable
further criticism

persons staff
of the

onset

is affected

deployable positions.

Secretary's decision

of

No

is warranted

under the circumstances.

Equal Protection
Equal Protection
________________
Plaintiff's next argument is that ANGR 39-10 on its
face

and as applied violated his

right to equal protection.

Plaintiff argues in his brief that policies of the Department

-1414

of Defense and Air Force draw

an invalid distinction between

reservists and active duty personnel by permitting the former

to be

discharged solely because

guaranteeing

of their HIV

status, while

to the latter the right not to be discharged on

the basis of HIV infection alone.

The

district court

declined

to

reach a

similar

issue in its order because plaintiff did not adequately raise

it in
1044

his complaint or at
n.1.

finding.
brief

Our review

trial.
of

the

See Doe, 800

___ ___
record

While plaintiff flagged the

and in

injunction,

his memorandum
his

complaint

substantiates that

issue in his posttrial

supporting
alleged

F. Supp. at

his motion

that

he

for an

suffered

violation of equal protection because of his HIV status,

a
not

because of his status as a reservist.

Even if the issue were preserved, we would
groundless.
case

The

policies and regulations

do not mandate

that reservists be

the basis of HIV infection.

transferred

to

the Standby

find it

at issue in

this

separated solely on

Rather, a reservist with HIV

Reserve

only if

there

is

are no

nondeployable positions available.

To the
the equal

extent plaintiff seeks appellate

protection issue

alleged in his

review of

complaint, i.e.,
____

discrimination based on his HIV condition, we deem the matter

waived

because plaintiff has not argued it on appeal in more

-1515

than a perfunctory manner.

See Gamma Audio & Video, Inc. v.

___ __________________________

Ean-Chea, 11 F.3d 1106, 1113 (1st Cir. 1993).

________
Due Process
Due Process
___________
Plaintiff's
constitutional

right

Although his brief

made

argument on

no explicit

to

refers to

of

his

process

is

the Due

also

to

the

deficient.

due process,
Process

on

appeal

is

"Certainly, at a

he

Clause by

provide notice and a hearing.

argument

following quotation:

relating

the right to

argument that

itself required PRANG to

essence

due

appeal

captured

The

in

the

minimum, due process

of

law, as guaranteed by the Fifth and Fourteenth Amendments

to

the United

Force

States

follow its

from the

Constitution, requires

own regulations

Air Force,

that the

in discharging

providing the

Air

an airman

procedural right

to the

affected person set forth by applicable law and regulations."

Br. for

Appellant, 18-19.

Plaintiff did not assert in

his

brief that he suffered a deprivation of any protected liberty

or

property

interest.

Moreover,

regulation, rule, or other

interest in

his

he

the

Guard.

conclude that plaintiff waived the issue.

906

no

statute,

basis for establishing a property

position in

Public Serv. Comm'n,

____________________

cited

F.2d

25,

Accordingly,

we

Playboy Enters. v.
_______________

40 (1st

Cir.),

cert.
_____

denied, 498 U.S.

______
which

it does

because `in

959 (1990) ("An appellant

not

adequately raise

preparing briefs

waives any issue

in its

initial brief,

and arguments, an

appellee is

-1616

entitled to rely on
the

the content of an appellant's

brief for

scope of the issues appealed.'" (quoting Pignons S.A. de

_______________

Mecanique
_________

v.

Polaroid Corp.,
_______________

701

F.2d

1,

(1st

Cir.

1983))).3
Where the issue
appellant's

favor, full

Puerto Rico law and

National Guard
accordance

with
____

generally

briefing

members may

with

resolved in the

is especially

federal law are similar in

be discharged or

regulations,

appropriate authority.
2072

is not one easily

10

U.S.C.

held

that

with

Compare P.R.
_______
269(e),
there

is

the

stating that
transferred in

approval

Laws Ann.
1001(b).

no

important.

property

of

an

tit. 25,
Courts
interest

have
in

continuing

employment

circumstances.
F.2d

1220,

according

the

military

under

such

See, e.g., Rich v. Secretary of the Army, 735

___ ____ ____
_____________________

1226
to

in

(10th

Cir.

regulations

1984)
lacked

remainder of enlistment term);

(enlistee
property

discharged
interest

in

accord Guerra v. Scruggs, 942

______ ______
_______

____________________
3. Plaintiff stated at oral
argument that the record
contained evidence that he held a property right in his
military position in the form of a "retention letter." While
that letter, dated June 20, 1990, informed plaintiff that he
had been selected "for continued retention" in ANGUS through
1992, it also contained the following caveat: "Selection for
continued retention . . . does not preclude applicable
military authority from separating you for other reasons [in
accordance with] applicable ANG or USAF regulations . . . ."
We need not decide whether plaintiff had a "legitimate claim
of entitlement" to continued employment, or whether the
letter's caveat and the existence of ANGR 39-10 rendered any
putative interest at most a "unilateral expectation," Board
_____
of Regents v. Roth, 408 U.S. 564, 577 (1972), because
__________
____
plaintiff waived the issue.
-1717

F.2d 270, 278 (4th Cir. 1991); see also Beller v. Middendorf,
___ ____ ______
__________

632

F.2d 788, 805 (9th Cir. 1980) (enlistee held no property

interest

in

remainder

of

enlistment

term

because

reasonable expectation of

continued employment existed

enlistee

be

was

found

to

dischargeable persons),
cf.
___

Navas v.
_____

1985)

employment);
(1st

regulatory

cert. denied,
_____ ______

Gonzalez Vales,
______________

(officer

within

lacks

452 U.S.

752 F.2d

property

Fredericks v. Vartanian,
__________
_________

once

class

of

905 (1981);

765, 768

interest

no

(1st Cir.

in

694 F.2d

military

891, 893-94

Cir. 1982) (member of state Guard did not hold property

interest

in

his rank,

relevant

restrictions on

demote him).
argument

on

where state

law

did not

commanding officer's

Because of plaintiff's failure

appeal,

we

decline to

place any

authority to
to develop the

consider

whether

the

constitution required PRANG to provide notice and a hearing.

Entitlement to Medical Board Review

Entitlement to Medical Board Review
___________________________________
Finally,
conclusion
hearing

that

plaintiff
he

was not

assails
entitled

to

a medical

court's
board

because he suffered "the sui generis situation of an

___ _______

administrative discharge based upon

Doe, 800
___

F. Supp. at 1048.

for determining
benefits.
board

the district

an

medical considerations."

A medical board

individual's entitlement

is responsible
to

disability

Plaintiff argues that he has a right to a medical

review under

10 U.S.C.

1214-1215

because

he was

-1818

discharged as a
1214,

result of

"[n]o member

separated

his medical condition.

of the

for physical

armed forces

may be

disability without

Under
retired or

a full

and fair

hearing if he demands it."

The problem

with plaintiff's

argument is that

he

produced no evidence which would have entitled him to medical

board

review.

medically
reason
U.S.C.

It

is

disabled.

undisputed
A

for discharge

before a

condition

duty, we would not

medical

board is

is

not

must be

the

convened.

See 10
___

were to conclude

that an

1214.

infection is

medical

plaintiff

"physical disability"

Furthermore, even
HIV

that

a "physical

entitled to

disability" because

rendering plaintiff

unfit

it is

plaintiff

It is
offered

a sufficient
no proof

disability benefits.

that

for worldwide

conclude that plaintiff is entitled

board hearing.

claim that

if we

bar to
he

See Candelaria

to a
such a

would

be

v. United

___ __________
States, 5 Cl.
______

Ct. 266,

273 (1984); see

___

United States, 226 Ct.

_____________
in

plaintiff's

service
shows
"[wa]s

also Abatemarco
____ __________

Cl. 708, 710-11 (1981).

position

with

______

more than

v.

A reservist

twenty

years

of

is entitled to disability benefits only if he or she

that the

disability "result[ed]

the proximate

inactive-duty

result

training."

from an

of performing

10 U.S.C.

injury" and

active duty

1204.

or

The record in

-1919

this case is devoid of proof that plaintiff acquired HIV as a

result of performing duties in the Guard.
III.
III.
JURISDICTION
JURISDICTION
____________
Before drawing this opinion
a

jurisdictional issue.

to a close, we address

Defendants Secretary

of the

Air

Force and Chief of the National Guard Bureau (hereinafter the

federal

defendants)

argue that

we

do

not have

appellate

jurisdiction because plaintiff's request for back

pay brings

this case within the Tucker Act.

709 (Guard

technicians are
requires

an

See 32 U.S.C.
___

federal employees).
understanding

of

Analyzing this

the

Tucker

Act

appreciation of the two types of claims at issue:

1983 claims

for back pay

and injunctive relief

issue
and

[1] the
against the

Puerto Rico defendants

in their

official capacities

the Adjutant

based on

plaintiff's discharge

General)

PRANG; and [2]

the claim

for back pay

an

against the

(e.g.,
____
from

federal

defendants based on the termination of plaintiff's technician

position.
Under

the Tucker Act, 28 U.S.C.

States waived its sovereign

money
claims.
(1976).

damages and

specified

immunity from nontort claims for

which courts

See United States v.

___ ______________

Testan,
______

Claims against the United

("Big" Tucker

1491, the United

424 U.S.

such

392, 398

States exceeding $10,000

Act claims), founded upon

-2020

could hear

the Constitution, a

federal

statute,

jurisdiction of the
1491.

regulation,
Court of

The district courts

or contract,

are

Federal Claims.
and the Court

in

the

28 U.S.C.

of Federal Claims

have concurrent jurisdiction over "Little" Tucker Act claims,

i.e.,
____

for

money

damages

up

to

$10,000.

28

1346(a)(2) (Little Tucker Act); Sibley v. Ball, 924

______
____
28-29

(1st Cir. 1991).

jurisdiction over

Federal Claims

unrelated

F.2d 25,

The Federal Circuit Court of Appeals

has exclusive appellate

Court of

U.S.C.

and over

to federal taxes.

v. Hohri, 482 U.S. 64, 68,

_____

appeals from

Little

28 U.S.C.

Tucker Act

the
cases

1295; United States

_____________

72-73 (1987); Sibley, 924 F.2d at

______

29.
In Sibley v.
______
whether we

Ball, 924 F.2d

____

had jurisdiction

the Secretary of the

sought

back pay

court.

We held

Act, even though

Id.
___

over an action

"within the

the plaintiff did not cite

Circuit

Id.
___

the complaint

jurisdiction" of

that the case arose under the

Consequently,

had exclusive

appellate

considered

brought against

Navy for back pay, where

jurisdictional statement.
the Federal

at 29, we

the district
Little Tucker

that Act in his

we found that
jurisdiction.

In this case, plaintiff cited only 28 U.S.C.

1331, the

statute providing federal question jurisdiction, as the basis

for filing
Sibley,
______

his

1983 claims in the district court.

924 F.2d

terms waive

at 28 (Section

sovereign immunity

"1331 does not

and vest in

But see
___ ___

by its own

district courts

-2121

plenary

jurisdiction

seeking

over

money judgment

all,
.

or

any,

.--are

suits

which--by

in substance

suits

against the United States.").

The

district

court clearly

jurisdiction over the Civil

relief asserted
plaintiff's
U.S.C.

federal question

Rights Act claims for injunctive

against the Puerto Rico

discharge from

1988.

had

PRANG.4

defendants based on

28 U.S.C.

1331; 42

Moreover, we are convinced that

the Federal

Circuit does not have exclusive appellate

jurisdiction here,

as it did in Sibley, 924 F.2d at 29, because plaintiff's back

______
pay

claim

here exceeds

Little Tucker Act.

the

jurisdictional

For the purposes of the

limit for

the

Tucker Act, "the

amount of a claim against

the total amount of back
to recover
accrued

in the

the United States for back

pay the plaintiff stands ultimately

suit and

is not the

at the time the claim is

F.2d 1544, 1553 (Fed.

plaintiff did not waive

pay is

filed."

amount of

back pay

Smith v. Orr, 855

_____
___

Cir. 1988) (citing cases).

At trial,

any claim against the United

States

____________________
4. Although the parties have not asked us to examine the
effect of the Eleventh Amendment in this context, we note
that a district court is not divested of jurisdiction over a
case involving a request for reinstatement and back pay
simply because the Eleventh Amendment precludes an award of
back pay.
See Will v. Michigan Dept. of State Police, 491
___ ____
_______________________________
U.S. 58, 71 n.10 (1989); Barreto-Fred v. Aponte-Roque, 916
____________
____________
F.2d 37, 39 (1st Cir. 1990); Melo v. Hafer, 912 F.2d 628, 635
____
_____
(3d Cir. 1990), aff'd, 112 S. Ct. 358 (1991); see also
_____
___ ____
Echevarria-Gonzalez v. Gonzalez-Chapel, 849 F.2d 24, 32 (1st
___________________
_______________
Cir.
1988) (stating that
reinstatement is prospective
relief).
-2222

for back pay in excess of $10,000.

The record indicates that

the amount of back

$10,000.

pay allegedly due plaintiff is

Consequently,

injunctive-relief

we

issues on

have

more than

jurisdiction

appeal

as to

over

the

the Puerto

Rico

defendants.
But

we can

identify no

jurisdiction

over the

defendants.

Neither the

1331

provides such

back

pay claim

district court

against the

Little Tucker Act, nor 28

authority.

district court's order

basis for

Accordingly, we

with respect

to the

federal
U.S.C.

vacate the

back pay

claim

asserted against the federal defendants.

We have authority to transfer to another court with
jurisdiction any
such a
1631.

action over which we

lack jurisdiction, if

transfer is in the interests of justice.

28 U.S.C.

Arguably, the Court of Federal Claims has jurisdiction

over plaintiff's

claim

for overdue

under the Tucker Act and

Guard technician's

the Back Pay Act, 5 U.S.C.

5596.

In Gnagy v. United States, 634 F.2d 574, 580 (Ct. Cl.

_____
_____________
and

in

Christoffersen v.
______________

1003-04 (1982), however, the

the Court of Federal
not

provide

the United
stated:

States.

230 Ct.

for

1980),
Cl. 998,

Court of Claims, predecessor to

Claims, held that the Back

basis

discharged from his

United States,
_____________

pay

Guard

or her unit, to
The court

Pay Act did

technician,

validly

recover damages against

in Gnagy, 634
_____

F.2d at

579,

-2323

An essential element of the right to

recover under the Back Pay Act is that
the personnel action which has resulted
in loss of
pay be "unjustified
or
unwarranted." This element is absent in
the instant case.
A prerequisite to
plaintiff's
former
employment as
a
civilian technician
for the National
Guard was that he be a member of the
National Guard.
When he was discharged
from [his Guard unit], . . . section
709(e)(1) of 32 U.S.C. (1976) required
that his civilian technician employment
be terminated. Hence, the termination of
this employment was not unjustified or
unwarranted.
Rather, it was mandated by
federal statutory law. The sum effect of
this is that the claim in question must
be dismissed.
Id. (footnotes omitted);
___
at

1001-04; see
___

(ruling

on

accord Christoffersen, 230

______ ______________

also Christoffersen,
____ ______________

motion

plaintiffs' claims

for

reconsideration)

as not within its

and Christoffersen effectively

______________
from the jurisdiction
the Tucker Act

230 Ct.

Ct. Cl.

Cl. at

(panel

jurisdiction").

removed such back pay

1005

"denied
Gnagy
_____
claims

of the Court of Federal Claims because

invests that

court with the

power to

grant

relief

only

exists.

substantive

right

to monetary

relief

See Testan, 424 U.S. at 398, 400; Eastport Steamship

___ ______
__________________

Corp. v.
_____
1967).
basis

when a

United States, 372

______________
We

for

can educe
federal

relating to

jurisdiction

Cl.

jurisdiction over

1002, 1007-08

from plaintiff's

his civilian

United States, 26
______________

F.2d

arguments no

over the

technician job.
Ct. 1471,

due process

back
See
___

1476 (1992)

and

(Ct.

pay

Cl.
other
claim

Martinez v.
________
(court lacks

equal protection

claims

-2424

based on

42 U.S.C.

1983), aff'd, 11 F.3d

_____

1069 (Fed. Cir.

1993); Montoya v. United States, 22 Cl. Ct. 568,

_______
______________

570 (1991)

(similar); Anderson v. United States, 22 Cl. Ct. 178, 179 n.2

________
_____________
(1990) ("While
cases

seeking

generally, under

this court

has jurisdiction in

reinstatement,
28 U.S.C.

back
1491, it

pay

and

has no

military pay
allowances
jurisdiction

over cases arising

under the Civil Rights Act."), aff'd, 937

_____

F.2d 623 (Fed. Cir. 1991); Montalvo v. United States, 231 Ct.
________
_____________
Cl. 980, 982-83 (1982)
based

on

States,
______

(court lacks jurisdiction over claims

violations of

due process);

cf. Dehne
___ _____

v. United
______

970 F.2d 890, 892 (Fed. Cir. 1992) (Court of Federal

Claims has jurisdiction over Guard member's claim for overdue

military pay, based on statutes stipulating military pay rate
and authorizing correction of military records).
Because
jurisdiction to
vacate

that

Moreover,

the district
entertain

aspect

because

tribunal arguably
against the United
subject matter

of

court lacked

plaintiff's back
the

the Court

district
of

Federal

subject matter
pay

court's

claim,

we

opinion.

Claims, the

only

possessed of jurisdiction over such claims

States, has expressly held that

jurisdiction where a civilian

it lacks

technician has

been duly discharged from his state Guard unit, a transfer of

the claim

pursuant to 28 U.S.C.

The claim

is therefore

1631 would be to no avail.

dismissed for want

-2525

of jurisdiction.

In all other respects, we affirm

on the merits.
It is so ordered.
It is so ordered.
_________________

the district court decision

-2626