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Alaska Department of Military and Veterans Affairs v. Bowen (2/13/98), 953 P 2d 888
NOTICE: This opinion is subject to formal correction before
publication in the Pacific Reporter. Readers are requested to bring errors to
the attention of the Clerk of the Appellate Courts, 303 K Street, Anchorage,
Alaska 99501, phone (907) 264-0608, fax (907) 264-0878.
THE SUPREME COURT OF THE STATE OF ALASKA
STATE OF ALASKA, DEPARTMENT OF )
MILITARY AND VETERANS AFFAIRS, ) Supreme Court Nos. S-6822/6842
ALASKA NATIONAL GUARD, )
) Superior Court No.
Appellant and ) 3AN-93-5009 CI
Cross-Appellee, )
) O P I N I O N
v. )
) [No. 4946 - February 13, 1998]
GARY W. BOWEN, )
)
Appellee and )
Cross-Appellant. )
_______________________________)
Appeal from the Superior Court of the State of
Alaska, Third Judicial District, Anchorage,
Karen L. Hunt, Judge.
Appearances: Patrick J. Gullufsen, Assistant
Attorney General, and Bruce M. Botelho, Attorney General, Juneau,
for Appellant and Cross-Appellee. Milford H. Knutson, Bledsoe &
Knutson, Anchorage, for Appellee and Cross-Appellant.
Before: Compton, Chief Justice, Rabinowitz,
Matthews, and Eastaugh, Justices, and Carpeneti, Justice pro tem.
[Moore, Justice, not participating.]
CARPENETI, Justice pro tem.
I. INTRODUCTION
Gary Bowen, who had served for nine years in the active
state service of the state organized militia, was involuntarily
terminated from his employment in May 1993. He appealed his
termination to the superior court, arguing principally that the
State Department of Military and Veterans Affairs, Alaska National
Guard (State) had failed to follow the provisions of the Alaska
Personnel Act and had deprived him of due process of law in the
procedures that it employed in terminating his employment. The
State contended that Bowen was a federal employee and that state
courts had no jurisdiction over the matter; that, regardless of the
jurisdiction of the state courts, federal law governed the right
and nature of any hearing to which Bowen was entitled; that even if
he were a state employee the state personnel act did not apply to
him; and that the termination procedures employed did not violate
his due process rights under the Alaska Constitution.
Superior Court Judge Karen Hunt concluded that Alaska
courts had jurisdiction over this dispute, that Bowen was a state
employee, that the Alaska Personnel Act did not apply to him, and
that his protected property interest in full severance pay was
affected without due process under the Alaska Constitution. Judge
Hunt found that Bowen had no protected property interest in
continued employment and no protected liberty interest in his
reputation and his ability to gain future employment. The court
remanded the matter to the State for a hearing to remedy the
violation concerning severance pay. Both parties have appealed.
The State appeals the superior court's decision in
several respects. The State submits that while federal law and
regulations "arguably"have completely occupied the field of
National Guard employment so that the states are pre-empted from
legislating or regulating in this field, states are, in any case,
pre-empted from legislating or regulating in a manner which
conflicts with federal law, and that applying "state due process
law and procedures"in this case conflicts with the federal
procedures regulating removal of employees and therefore may not
control this case. In addition, the State argues that National
Guard separation and separation pay issues are not reviewable; that
Bowen failed to exhaust his administrative remedies; and that Bowen
lacks a property interest in full separation pay which is protected
by due process. Assuming Bowen's property interest in full
separation pay is protected by due process, the State further
contends that the requirements of due process were satisfied by the
remedies available to Bowen. Finally, the State maintains that the
superior court erred in determining that the federal regulation
governing the procedure to be employed in connection with the
discharge of a National Guard employee was unconstitutional as
applied under the state constitution.
Bowen cross-appeals, arguing that the superior court
erred in failing to find he was entitled to: (1) the protections of
the State of Alaska Personnel Act (AS 39.25.010 et seq.), and (2)
a pretermination hearing under article I, section 7 of the Alaska
Constitution. Bowen argues that he was deprived of a liberty
interest without due process of law as guaranteed under article I,
section 7, and the Fourteenth Amendment of the United States
Constitution, by being denied a pretermination administrative
hearing prior to the decision of the DMVA to terminate his
employment. Finally, Bowen argues that the superior court erred in
failing to order a trial de novo as the method of conducting the
pretermination administrative hearing ordered by the court, or, in
the alternative, in failing to mandate some method insuring an
impartial hearing.
We conclude that the courts of the State of Alaska have
jurisdiction over this case, that Bowen was a state employee, that
the State Personnel Act did not apply to him, and that his property
interest in full severance pay entitled him to a hearing before his
severance pay could be reduced. We affirm the superior court in
all of these respects. We further conclude that Bowen has a
protected liberty interest in his reputation under the Alaska
Constitution, and therefore reverse that portion of the superior
court's decision that held to the contrary. In all other respects,
we affirm the superior court's order reversing the Department of
Military and Veterans Affairs' (DMVA) decision terminating Bowen
without first giving him an adversarial pretermination hearing.
II. FACTS AND PROCEEDINGS
In April 1983 Gary Bowen was appointed as an officer in
the state organized militia, as defined in AS 26.05.010(b)(1), for
purposes of periodic training and drill as a Judge Advocate. This
is the familiar part-time duty of the National Guard.
Approximately one year later, in June 1984, pursuant to 32 U.S.C.
sec. 502(f) and Air National Guard Regulation (ANGR) 35-03, Bowen
was
ordered to active service in the Active Guard/Reserve (AGR). He
was ordered to full-time duty with the Alaska Adjutant General
under the Alaska Department of Military and Veterans Affairs to
serve as the Staff Judge Advocate, Attorney Advisor, at the
headquarters of the Alaska National Guard. Bowen was periodically
reappointed to this position by orders issued in April 1985, June
1988, and April 1991. Each order identified 32 U.S.C. sec. 502(f)
and
ANGR 35-03 as the authorities for the appointments; each order also
stated that the duration of the appointment was as indicated
"unless sooner relieved by competent authority."
In 1992 Bowen was directed to work on the implementation
of the Alaska State Military Justice System. Bowen's immediate
supervisor on this project was Alaska Air National Guard Colonel
Jerry W. Gillean; Bowen's supervising project officer was Alaska
Air National Guard Brigadier General Dan Dennis. In February 1993
Colonel Gillean notified Bowen that he had recommended to the
commander of the Alaska National Guard, Adjutant General, Major
General Hugh L. Cox III, that Bowen be involuntarily terminated
from full-time AGR duty. Colonel Gillean cited the following
reasons for this recommendation:
a. You failed to timely and properly respond
to allegations of personal financial irregularities which were
discovered during a security reinvestigation. As a result of these
allegations your access to classified information was withdrawn on
6 November 1992. Although you knew that your supervisors
considered this situation serious, you took no action to respond to
their concerns until you were directed to do so on 4 Dec 92. Your
response failed to produce any documentation that would have
cleared up this concern. The dilatoriness of your response and the
inadequacy of your answers have resulted in a breach of trust
between the leadership of the Alaska National Guard and you as our
full time staff judge advocate.
b. On 19 Nov 92 you had General Cox sign a
leave slip for yourself which you then failed to properly process.
When you returned to work on 4 January 1993, you did not file your
leave completion until I inquired into this matter with you on 21
January 93. I also requested an explanation of your failure to
obtain a leave authorization number and an explanation of why you
delayed in closing out the leave transaction. You have not
provided me with such an explanation. You have been given a letter
of reprimand for your actions in this leave incident. This
misconduct has further eroded the relationship that should exist
between your employer and yourself.
This notice advised Bowen that his recommended
termination from full-time AGR duty would be in accordance with
paragraph 6-5c of ANGR 35-03 and that under these regulations he
had five work days in which to file a written response. Bowen
requested and received counsel and was also given additional time
to submit his response. Bowen then filed detailed written
rebuttals to the above charges.
In March 1993 Bowen, through private counsel, requested
a pretermination hearing to challenge the allegations. This
request was promptly denied by Colonel Gillean. Gillean stated
that Bowen was "not entitled to a pretermination hearing because he
[had] failed to assert a protected interest,"and that the
procedures set out in ANGR 35-03 provided "sufficient
administrative due process safeguards"for Bowen.
In early April 1993, after reviewing the responses
submitted by Bowen, Colonel Gillean formally recommended Bowen's
termination from his Active Guard and Reserve tour. This
recommendation was forwarded with the case file to Brigadier
General Kenneth M. Taylor, Jr., for review.
On April 5, 1993, General Taylor notified Bowen that he
also recommended Bowen's involuntary termination from full-time AGR
duty. Taylor restated Gillean's reasons for the recommended action
and added a further charge:
On 13 May 92, you were tasked by Maj Gen Cox,
Adjutant General Alaska National Guard, to work on the
implementation of a military justice system for the state of
Alaska. Through your personal dereliction and lack of initiative,
a plan for a military justice system was inexcusably delayed. Your
failure to perform this task, despite extensive supervision, has
left the commanders assigned to the Alaska National Guard no
vehicle in which to enforce discipline for an extended period of
time.
In documentation running over 300 pages in length, Bowen
denied all of the allegations with detailed answers and rebuttals.
Bowen also denied that any of the charges against him amounted to
"misconduct"or wrongdoing in any other respect. [Fn. 1]
General Taylor's recommendation and Bowen's responses
were sent to Brigadier General Dan E. Dennis for review. General
Dennis concurred in the recommendation to terminate Bowen from AGR
duty, which he then formally made to Adjutant General Cox.
On May 2, 1993, Adjutant General Cox denied Bowen's
request for a pre-termination hearing, stating he had "reviewed AGR
35-03 and [found] this type of hearing [was] not required under
that regulation." On May 3, 1993, Adjutant General Cox issued his
decision on the recommendations for separation from AGR status he
had received from the aforementioned subordinate officers:
1. I have carefully reviewed the
Notification of Action of Involuntary Separation, dated 16 April
1993, with attachments and your response to this action.
2. I believe the preponderance of the
evidence clearly supports the termination of your full-time Air
National Guard duty (AGR) tour from the Alaska National Guard under
paragraphs 6-5(c)(1), acts of misconduct, and 6-5(c)(2),
professional dereliction, of ANGR 35-03.
Bowen requested reconsideration which Adjutant General Cox denied.
On May 14, 1993, Bowen submitted a letter to the Alaska
Personnel Board requesting a hearing under AS 39.25.170. This
request was denied.
On May 20, 1993, the DMVA issued Special Order AGR-092
terminating Bowen's employment by order of Alaska Governor Walter
J. Hickel. Bowen was then issued a Certificate of Release or
Discharge from Active Duty (a Department of Defense Form 214).
Bowen was sent two copies of the DD Form 214, one containing no
indication of the underlying reasons for his discharge and the
other specifying an honorable discharge with reason stated as
"misconduct."
Bowen appealed the termination of his AGR status to the
superior court, arguing that he was entitled to a pre-termination
hearing pursuant to the State Personnel Act, AS 39.25.170, and
article I, section 7 of the Alaska Constitution. Bowen also argued
that the denial of a pre-termination hearing deprived him of
liberty and property without due process of law in violation of
both the federal and state constitutions.
The superior court concluded that Bowen was deprived of
a vested property interest in full severance pay and was thus
entitled to a full adversarial hearing consistent with this court's
holdings in City of Homer v. State, Dep't of Nat. Resources, 566
P.2d 1314, 1319-20 (Alaska 1977), and Nichols v. Eckert, 504 P.2d
1359, 1365 (Alaska 1973). [Fn. 2] The superior court, however,
rejected Bowen's argument that his involuntary discharge for
misconduct implicates a protected liberty interest both in his
reputation and his ability to gain future employment. The superior
court then reversed the action of the DMVA and remanded the matter
back to the DMVA for a pre-termination hearing.
Bowen requested reconsideration of the portion of the
superior court's ruling that the matter be remanded to the DMVA,
arguing that the DMVA had demonstrated a bias and predisposition to
resolve the matter adversely to Bowen. The DMVA requested
clarification of the court's order. [Fn. 3] The superior court
denied both motions on November 28, 1994.
This appeal and cross-appeal followed.
III. DISCUSSION
A. Standard of Review
This court exercises its independent judgment concerning
questions of law raised by an administrative agency decision where
there is no special agency expertise. Phillips v. Houston
Contracting, Inc., 732 P.2d 544, 546 (Alaska 1987); North Slope
Borough v. LeResche, 581 P.2d 1112, 1115 (Alaska 1978).
B. Reviewability of Allegations of Deprivation of
Constitutional Rights by the Military
The State argues that civilian courts should not review
Bowen's allegation that he was deprived of his constitutional
rights by the military because (1) the courts of Alaska do not have
jurisdiction over this matter, (2) state law is pre-empted by
federal law in this area, (3) such claims are nonjusticiable, and
(4) Bowen did not exhaust his administrative remedies. We reject
each of these arguments.
1. Jurisdiction
The State argues that the superior court acted beyond the
jurisdiction of a state appellate court in ruling that the process
mandated by federal regulation for separation of members from the
AGR program and for determining eligibility for separation pay
violates the due process requisites of the state constitution. The
State further argues that this court would also exceed its
jurisdiction if it were to uphold the decision of the superior
court. [Fn. 4]
The State's argument regarding jurisdiction [Fn. 5]
misperceives what occurred below. The superior court was not asked
to rule on the constitutionality of any federal statute or of ANGR
35-03. Furthermore, the superior court did not rule that any
federal statute or regulation violates the state constitution. The
superior court held that, pursuant to federal law, the state
constitution's due process clause must be followed before
separation pay may be withheld or reduced. The court also
determined that Bowen, as a member of the state National Guard, is
a state employee. State courts have jurisdiction to decide cases
regarding the discharge of members of the National Guard who are
state employees. E.g., Sorrentino v. Ohio Nat'l Guard, 560 N.E.2d
186, 190-91 (Ohio 1990) (recognizing court's jurisdiction to decide
cases regarding discharge of state National Guard members not in
active federal service under modern militia system). The superior
court was correct in both regards. We hold that Alaska has
jurisdiction in this case.
2. Pre-emption
The State argues that Congress and the Secretary of the
Air Force have acted to regulate comprehensively the administration
of the AGR program in the Alaska Air National Guard, including the
procedures to be followed in the case of separation, and that the
states are pre-empted from applying additional and different
procedures. [Fn. 6] The State further argues that even where
federal law or regulation does not comprehensively occupy the
field, state law cannot stand if it conflicts with federal
regulation. [Fn. 7]
While the federal government might have acted to regulate
comprehensively the administration of the AGR program in the Alaska
Air National Guard, it has not done so. Examination of two federal
laws shows this. First, 32 U.S.C. sec. 324(b) allows termination
of a National Guard officer "as provided by the laws of the State."
[Fn. 8] Congress has chosen to affirm, rather than abridge, the
states' role in terminating officers of their National Guards.
This is clear recognition that state law may provide additional
termination requirements.
Second, analysis of ANGR 35-03 shows that the regulation
was drafted with the applicability of state laws in mind. Chapter
6, section 6-5(a) of the regulation provides in relevant part that
personnel will be involuntarily removed from
full-time National Guard duty only IAW [in accordance with]
procedures prescribed herein and only after the state Adjutant
General determines that all applicable laws and regulations have
been complied with.
(Emphasis added.) Given that termination of a National Guard
officer may only be "as provided by the laws of the State"under 32
U.S.C. sec. 324(b), and given that the Adjutant General must
determine
that all applicable laws have been complied with, it is clear that
applicable state constitutional provisions must be enforced in the
termination process. [Fn. 9] Nothing in the federal statute or
regulations appears to disallow the application of state
constitutional requirements in addition to the procedures set out
in ANGR 35-03; indeed, the statute and regulations invite state law
participation in the termination process. We therefore conclude
that Congress has neither expressly nor impliedly pre-empted state
law in this field.
Only one termination procedure exists, which eliminates
the possibility of conflicting decisions. Given the language in
ANGR 35-03 and 32 U.S.C. sec. 324, there is no inherent conflict
between the termination procedures set forth in ANGR 35-03 and
additional state constitutional procedural safeguards. In short,
there is no conflict with federal law. Therefore, we conclude
there is no federal pre-emption and affirm the ruling of the
superior court.
3. Justiciability
The State argues that AGR separation and separation pay
issues are nonjusticiable. [Fn. 10] The State cites a test adopted
in Christoffersen v. Washington State Air Nat'l Guard, 855 F.2d
1437, 1442 (9th Cir. 1988). [Fn. 11] We decline to apply the
Christoffersen test because Bowen is a state employee, not a
federal employee. Furthermore, the question whether deprivation of
property rights by an Alaska administrative agency is sufficient to
invoke constitutional due process is not one of military expertise
or one which causes interference with the military mission. [Fn.
12]
This court is not being called upon to intrude into any
issues of military doctrine or other matters committed to the
expertise of military commanders. Rather, we are asked to review
the decision of the superior court that analyzed the actions of the
DMVA and determined that it transgressed the constitutional rights
of one of its employees. We therefore hold the issues on appeal in
this case are justiciable.
4. Exhaustion of Administrative Remedies
The State argues that in concluding that Bowen was
entitled to an adversarial hearing under state law before his
separation pay could be reduced, the superior court overlooked
Bowen's failure to exhaust his intraservice administrative remedies
in this regard. The State contends that Bowen could have sought
relief from the Air Force Board for Correction of Military Records
(AFBCMR) under 10 U.S.C. sec. 1552 and 32 C.F.R. sec. 865.1 et seq.
The State asserts that the AFBCMR is available, upon application by
a
member of the National Guard, to review a nonretention decision on
a claim that it was the result of error or injustice and to correct
the member's records and reinstate pay and other federal
compensation or benefits that were lost.
This issue not having been properly raised before the
superior court, we will not consider it on appeal. [Fn. 13] We
have previously held:
Waiver in superior court may occur either in a
suit initiated there, or when the superior court is reviewing
agency action. In agency review, an issue may be abandoned on
appeal to the superior court, either by failing to include it in
the points on appeal or by inadequate briefing.
Nenana City Sch. Dist. v. Coghill, 898 P.2d 929, 934 (Alaska 1995)
(citation omitted). See also Zeman v. Lufthansa German Airlines,
699 P.2d 1274, 1280 (Alaska 1985) ("As a general rule, a party may
not present new issues or advance new theories to secure a reversal
of a lower court decision.") (citing O'Neill Investigations, Inc.
v. Illinois Employers Ins. of Wausau, 636 P.2d 1170, 1175 n.7
(Alaska 1981)); Williams v. Alyeska Pipeline Serv. Co., 650 P.2d
343, 351 (Alaska 1982) (holding argument not raised before superior
court will not be considered on appeal).
The State concedes that it did not raise this issue
specifically before the superior court, but contends that its
arguments before the court specifically and impliedly urged
deference to the existing military administrative process and
avoidance of judicial interference. The State asserts that this is
a central theme of the exhaustion principle. Citing this court's
adoption of a "liberal approach"in determining whether an issue
was raised in the superior court, [Fn. 14] the State submits that
the exhaustion issue should not be deemed waived.
In its brief before the superior court the State argued
the following:
A. Major Bowen Was Not a State Employee.
B. If Major Bowen Is Not a State Employee,
Then His Employment Is a Federal Matter and Beyond the Jurisdiction
of This Court.
C. Regardless of Who the Employer Was, the
Employment Contract Made Federal Regulations Applicable to Major
Bowen's Employment.
D. Federal Law Governs the Right to and
Nature of Any Hearing.
E. The Procedures in ANGR 35-03 Satisfy the
Requirements of Due Process.
Obviously, none of these arguments included a claim that Bowen
failed to exhaust his administrative remedies. Additionally, we
have reviewed the entire text of each argument set out under each
of these headings. None raises the issue of exhaustion of
administrative remedies. Even when viewing the State's pleadings
before the superior court liberally, there is no allegation
whatsoever of the issue now argued before this court. Therefore,
we hold that this issue was waived because the State failed to
include it in its brief to the superior court. Nenana City Sch.
Dist., 898 P.2d at 934.
C. Separation Pay
1. Whether Bowen has a property interest in full
separation pay
As a State employee under the National Guard AGR program,
Bowen's pay was federally funded under 32 U.S.C. sec. 502(f). Upon
his termination he was entitled to severance pay under Department
of Defense Pay Manual (DoDPM), Chapter 4, Section B, 40411a. Once
DMVA determined that Bowen was guilty of "misconduct,"however, his
severance pay was reduced by one-half and he lost severance pay in
the approximate amount of $37,030. DoDPM, Chapter 4, Section B,
40411b.
The superior court found that property interests
protected under Alaska's due process clause are defined by existing
state laws, rules, or customs. The superior court relied on
Breeden v. City of Nome, 628 P.2d 924, 926 (Alaska 1981) (quoting
Board of Regents v. Roth, 408 U.S. 564, 577 (1972)), in which this
court stated:
Property interests, of course, are not created
by the Constitution. Rather, they are created and their dimensions
are defined by existing rules or understandings that stem from an
independent source such as state law - rules or understandings that
secure certain benefits and that support claims of entitlement to
those benefits. [Fn. 15]
The superior court found that where pay manuals define
the amount of separation pay due an employee upon involuntary
discharge, the employee has a legitimate expectation of a certain
amount of such pay upon involuntary termination. The court
concluded that Bowen established a protected property interest in
such pay.
The State contends that Bowen does not have a property
interest in full separation pay. The State maintains that
separation pay for an AGR member is only payable upon the member
being involuntarily released before the scheduled end of a tour,
and then it is only available to those who meet the eligibility
requirements outlined in DoDPM. The State argues that a member
with AGR status cannot place any reasonable reliance upon a benefit
that becomes available only in the event that the member is ordered
out of the program before his or her tour comes to an end.
The State also points to DoDPM Chapter 4, Section B,
40412, entitled "Limitations of Eligibility":
Service members separated under the following
circumstances are not eligible for separation pay:
. . . .
l. A determination is made by the
secretary concerned in an extraordinary case that the conditions
under which the member is separated do not warrant separation
payment. This authority is not to be delegated. It is intended
that this discretionary authority to deny payment will be used
sparingly.
The State then argues that nothing in the DMVA's regulatory scheme
vests Bowen with a right to separation pay.
Bowen maintains that DMVA's determination that he
committed acts of misconduct without affording him the opportunity
to challenge that accusation, resulting in a loss of $37,030 in
separation pay, was a deprivation of a property interest without
due process of law.
In our view the fact that separation pay is payable only
upon involuntary separation and that there are certain defined
situations, such as Bowen's, where it can be reduced or in an
"extraordinary"case eliminated does not diminish an employee's
legitimate expectation of separation pay upon involuntary
termination. Separation pay is a concept defined in DoDPM, Chapter
4, Section B, and the DoDPM rules define the amount of separation
pay due an employee. Simply because some involuntarily separated
employees may receive less than full separation pay based on a
specific finding by the DMVA warranting the decrease under the
DoDPM rules, it does not follow that such employees did not have a
legitimate expectation of a certain amount of separation pay upon
involuntary termination. Nor does it support the conclusion that
the pay may be diminished or eliminated in an unfair manner.
As to the process which was provided to Bowen, his
request for a pre-termination hearing was denied, as was his
request for reconsideration. Thus, Bowen was provided no
opportunity for a hearing before his separation pay was reduced.
We conclude, as the superior court did, that Bowen was
deprived of a vested property interest in full severance pay and
was entitled to a full adversarial hearing consistent with this
court's holdings in City of Homer, 566 P.2d at 1319-20 and Nichols,
504 P.2d at 1365. Bowen was not afforded such a hearing before the
deprivation of his severance pay, and thus Bowen was not provided
due process under the Alaska Constitution.
We therefore affirm this legal conclusion of the superior
court and hold that Bowen has a property interest in full
separation pay entitled to due process protection.
2. Whether sufficient due process to protect Bowen's
property interest is provided in the intraservice
remedies available to him
The State argues that even if full separation pay is a
benefit entitled to due process protection, Bowen's ability to
pursue his eligibility for full separation pay through either the
AFBCMR or the Air Force Discharge Review Board is a remedy
sufficient to satisfy due process in these circumstances. The
State failed to make this argument before the superior court. [Fn.
16] On this basis alone, we reject this argument. See supra pp.
17-19. Moreover, courts have questioned the appropriateness of
leaving to administrative agencies the resolution of constitutional
claims. See supra n.13.
D. Whether Bowen Is a State Employee and Whether He Is
Entitled to the Protections of the Alaska Personnel Act
Bowen, a staff judge advocate serving in the AGR program,
was a state employee and a member of the Alaska National Guard
subject to state National Guard statutes and regulations. See U.S.
ex rel. Karr v. Castle, 746 F. Supp. 1231, 1237 (D. Del. 1990),
withdrawn in part, 768 F. Supp. 1087 (D. Del. 1991), aff'd sub nom.
U.S. v. Carper, 22 F.3d 303 (3d Cir. 1994) ("The intent of
Congress was, and is, that National Guard personnel serving in the
'Full-Time Manning Program' now included in a DOD program called
Active Guard and Reserve (AGR) serve under 32 U.S.C. sec. 502(f) in
conventional National Guard status, i.e., under State control as
opposed to service in the active military service of the United
States in Reserves of the Army or Reserves of the Air Force
status.") (quoting H.R. Rep. No. 943, 97th Cong., 2d Sess. 31
(1982)). As the Supreme Court observed in Maryland v. United
States, 381 U.S. 41, 48 (1965), remanded on other grounds, 382 U.S.
159 (1965):
It is not argued here that military
members of the Guard are federal employees, even though they are
paid with federal funds and must conform to strict federal
requirements in order to satisfy training and promotion standards.
Their appointment by state authorities and the immediate control
exercised over them by the States make it apparent that military
members of the Guard are employees of the States, and so the courts
of appeals have uniformly held.
(Emphasis added.)
The determination that Bowen is a state employee does not
end the inquiry, however. Alaska Statute 26.05.060 specifies what
statutes and regulations apply to members of the Alaska National
Guard:
The governor as ex officio commander of the
militia of the state has command of the Alaska National Guard and
the Alaska Naval Militia while they are not in active federal
service. The governor may adopt necessary regulations for them not
inconsistent with 48 U.S.C. sec. 473-479. Except as otherwise
prescribed by those sections, the Alaska National Guard and the
Alaska Naval Militia and their members are subject to all federal
laws and regulations relating to the National Guard and Naval
Militia of the several states and the territories and of the United
States.
See also AS 26.05.340. [Fn. 17] Although it has had the power to
do so, Alaska has not adopted any regulations concerning the
organization, administration or management of state National Guard
personnel.
Air National Guard Regulation 35-03 "prescribes policy
and procedures for administering and managing full-time National
Guard personnel serving in the full-time military duty program
under 32 U.S.C. sec. 502(f)"that were in effect during Bowen's
tour
of duty. [Fn. 18] ANGR 35-03, Chap. 1, sec. 1-1. Chapter 6,
section 6-5d of ANGR 35-03 sets forth the procedure for involuntary
termination. That section contains no provision for a
pretermination hearing.
Alaska Statutes 26.05.060 and 26.05.340 specifically
provide that Alaska National Guard personnel are subject to the
federal laws and regulations relating to the National Guard and any
supplemental regulations adopted by the Alaska Adjutant General and
approved by the Governor. No such regulations have been adopted.
Because no statute or regulation has been adopted which applies the
Alaska Personnel Act to termination of a member of the state
National Guard, the hearing protections set forth in the Alaska
Personnel Act do not apply to Alaska National Guard personnel.
We further hold that ANGR 35-03, Chapter 6, Paragraph 6-
5a, does not mandate that Bowen's involuntary separation comport
with all aspects of Alaska state law. The regulation states only
that "the state Adjutant General [must] determine[] that all
applicable laws and regulations have been complied with."
(Emphasis added.) By virtue of the failure of the state to adopt
regulations which would apply the Alaska Personnel Act to military
personnel, as it might have done under AS 26.05.060 and AS
26.05.340 but did not do, we conclude that the personnel act is not
applicable to Bowen.
Finally, we disagree with Bowen's contention that the
failure to list military employees in AS 39.25.110's list of state
employees who are exempt from the personnel act means that the act
applies to Bowen. The statute is not an exhaustive list of exempt
employees. The statute provides in relevant part:
Unless otherwise provided by law, the
following positions in the state service constitute the exempt
service and are exempt from the provisions of this chapter and the
rules adopted under it . . . .
Thus, exempt status may be derived from provisions of law other
than AS 39.25.110. Because the Alaska legislature adopted federal
personnel rules and regulations regarding promotion and separation
in the Alaska National Guard, it "otherwise provided by law"that
Alaska National Guard members were exempt, and thus excluded from
the provisions of the Alaska Personnel Act.
We conclude that in the absence of any supplementary
regulation pursuant to AS 26.05.060 or AS 26.05.340, the state has
adopted federal law and regulation, specifically ANGR 35-03, as
setting forth the policies to be followed for administering and
managing full-time National Guard personnel. Therefore, we hold
that the language of ANGR 35-03, Chapter 6, Paragraph 6-5a, does
not cause the Alaska Personnel Act to be applicable to National
Guard personnel.
We therefore affirm the holding of the superior court
that Bowen is not entitled to the protections of the Alaska
Personnel Act.
E. Whether Bowen Has a Due Process Right to a Hearing under
Article I, Section 7 of the Alaska Constitution
Article I, section 7 of the Alaska Constitution provides
in part:
No person shall be deprived of life, liberty
or property without due process of law . . . .
This court held in Nichols, 504 P.2d at 1362, that for
the right to due process to attach, there must be a "state action
and deprivation of an individual interest of sufficient weight to
warrant constitutional protection." Accordingly, the question in
this case is whether Bowen was deprived of a protected liberty
interest without due process of law by being denied a pre-
termination administrative hearing.
Bowen asserts that he was so deprived. He argues that
"[t]he liberty interest requiring a pretermination due process
hearing applies any time the government takes action against a
public employee by leveling serious charges causing a stigma or
other disability to arise against the employee thus foreclosing the
employee's freedom to take advantage of other employment
opportunities."
Bowen maintains that every time he seeks future
employment or attempts to pursue his chosen profession, the
practice of law, he may be obliged to explain why a previous
termination of employment was for acts of "misconduct." This
argument has merit. Although Bowen was provided with two copies of
his DD Form 214, one which contained no information concerning his
discharge and one which stated that he had been honorably
discharged for "misconduct,"Bowen could still be asked the reasons
for his discharge. Furthermore, the "sanitized"copy of his DD
Form 214 does not list any information whatsoever concerning
Bowen's discharge, which would very likely prompt questions on the
subject during future employment interviews.
Additionally, in today's sophisticated market place, it
is reasonable to conclude that prospective employers understand the
language and importance of a DD Form 214. See Casey v. United
States, 8 Cl. Ct. 234, 242-43 (1985) (prospective employers know
and understand the coded designators used on DD-214's and routinely
ask discharged servicemen for the forms, "[t]hus, stigmatizing and
derogatory information must only be given to servicemen who have
been afforded elementary due process rights").
The cited reason for Bowen's discharge, "misconduct,"is
sufficiently stigmatizing to implicate a liberty interest
triggering due process protection in these circumstances. General
allegations of misconduct are sufficiently damaging to the
reputation of a military employee and an attorney to implicate that
employee's liberty interest. We therefore hold that Bowen is
entitled to a pretermination administrative hearing under article
I, section 7 of the Alaska Constitution, as to his reputation
interest in addition to his interest in full severance pay. [Fn.
19]
F. Whether Bowen Is Entitled to a Trial De Novo or a Hearing
outside the Auspices of the DMVA
The superior court held that given Bowen's protected
property interest in full severance pay, he was entitled to a
pretermination adversarial hearing under City of Homer, 566 P.2d at
1319-20, and Nichols, 504 P.2d at 1365.
Bowen requested reconsideration of the portion of the
superior court's order remanding the case to the DMVA for hearing,
arguing that "[t]he undeniable fact is that Bowen cannot receive
anything resembling a fair and impartial hearing from any
organization, group, board or panel appointed under the control and
auspices of the Department of Military and Veteran's Affairs or
Alaska National Guard." Bowen appeals from the superior court's
denial of reconsideration.
Bowen's charge of bias on the part of the DMVA and the
Alaska National Guard is not established by the record.
Consequently, there is no basis for his claim of entitlement to a
trial de novo. We therefore affirm the order of the superior court
and deny Bowen's request for a trial de novo. Bowen may, however,
make interim application to the superior court for further relief,
once the procedure for his hearing is set by the DMVA, upon a
showing that the procedures established by the DMVA are unfair.
IV. CONCLUSION
For the reasons set out above, we AFFIRM the superior
court's determinations that Alaska courts have jurisdiction of this
dispute, that Bowen was a state employee, that the Alaska Personnel
Act did not apply to him, and that his protected property interest
in full severance pay was violated without due process under the
Alaska Constitution. We therefore AFFIRM the superior court's
order reversing the DMVA's decision to terminate Bowen's employment
without first giving him a pretermination hearing, and we AFFIRM
the superior court's determination that a trial de novo is not
required. Having concluded that Bowen had a liberty interest in
his reputation under the Alaska Constitution, we REVERSE that
portion of the superior court's opinion which held to the contrary.
We REMAND the matter to the superior court for remand to the DMVA
for a pretermination hearing.
FOOTNOTES
Footnote 1:
Bowen maintains that the regulation relied upon by the State,
ANGR 35-03, fails to define "misconduct"and therefore provides no
basis for termination.
Footnote 2:
The superior court reasoned that Bowen had a vested property
interest in full severance pay, and because a discharge for
misconduct or professional dereliction would result in the
reduction of the amount of severance pay to which Bowen was
otherwise entitled by almost one-half, Bowen must receive a full,
adversarial hearing as delineated under the state constitution
before this interest could be reduced.
Footnote 3:
The State asked the court to clarify whether payment to Bowen
of his full severance pay would, under the court's decision and
order, render a hearing unnecessary.
Footnote 4:
The State cites Kansas City Power & Light Co. v. State Corp.
Comm'n, 715 P.2d 19, 22 (Kan. 1986) (holding that if a federal
statute does not violate the Constitution of the United States, it
cannot be held unconstitutional on the grounds that it violates a
state constitution). Kansas City Power & Light does not apply to
this case because we are not addressing the constitutionality of
ANGR 35-03.
Footnote 5:
While denominated by the State as an argument going to
jurisdiction, this is really a supremacy clause argument. For the
reasons noted below, there is no supremacy clause violation here.
Footnote 6:
We set out the tests for federal pre-emption in Totemoff v.
State, 905 P.2d 954 (Alaska 1995):
Federal law can preempt state law in three
ways. First, Congress may expressly declare that state law is
preempted. Second, state law is preempted if Congress intends the
federal government to occupy a field exclusively. Third, federal
law preempts state law if the two actually conflict. See, e.g.,
Wisconsin Pub. Intervenor v. Mortier, 501 U.S. 597, 604-05, 111
S.Ct. 2476, 2481-82, 115 L.Ed.2d 532 (1991); English v. General
Elec. Co., 496 U.S. 72,, 78-79, 110 S.Ct. 2270, 2274-75, 110
L.Ed.2d 65 (1990).
Id. at 958. The State relies on only the second and third pre-
emption tests set out in Totemoff. For more recent discussions of
the pre-emption doctrine, see State v. Arnariak, 941 P.2d 154
(Alaska 1997).
Footnote 7:
In response, Bowen maintains that the doctrine of "federal
pre-emption"only applies where federal courts are granted
exclusive jurisdiction over a federal cause of action to the
exclusion of any state court. Bowen argues that the general rule
is that state courts are considered presumptively competent to
adjudicate issues and claims arising under federal law, citing
Yellow Freight System, Inc. v. Donnelly, 494 U.S. 820, 823 (1990).
Bowen's argument is not responsive to the State's
argument. The State's argument goes to the power of the State to
legislate or pass regulations either at all or in conflict with the
federal laws and regulations. Bowen's response concerns the
jurisdiction of state courts, another aspect of pre-emption and one
which the State does not argue here.
In summary, there are some areas of federal law in which
the states may not legislate or regulate but state courts may
adjudicate the disputes which arise under federal law. The State
takes the position that this case fits in this category. There are
other areas of federal law where the states not only may not
legislate or regulate, the state courts may not adjudicate. Bowen
argues that the State claims that this is such an area. The State
has not made that argument.
Footnote 8:
The statute provides in relevant part that
the appointment of an officer of the National
Guard may be terminated or vacated as provided by the laws of the
State or Territory of whose National Guard he is a member . . . .
(Emphasis added.) Emphasizing the role of the states in procedures
involving termination of National Guard officers, 32 U.S.C. app.
sec.
1101.5 (National Guard Regulations) provides in part:
Termination of appointments and withdrawal of
Federal recognition -- (a) Authority
The termination of the appointment of a
commissioned officer of the National Guard is a function of the
State authorities.
Footnote 9:
It should also be noted that ANGR 35-03, Chapter 1, section 1-
4 allows the state Adjutant General to supplement the regulation
"provided the specific requirements herein are not abridged." The
addition of a requirement of a hearing does not in any way abridge
any of the specific requirements of ANGR 35-03, section 6-5
(Separation for Cause and Procedure). Rather, it supplements them.
The state Adjutant General, who under ANGR 35-03, section 1-4, "is
authorized to issue supplements"to the regulation, is not
prohibited by the regulation from following state constitutional
requirements as well as the regulation.
Footnote 10:
Nonjusticiability claims are most often raised in the context
of "political questions,"about which we have said: "[t]here are
certain questions involving coordinate branches of the government,
sometimes unhelpfully called political questions, that the
judiciary will decline to adjudicate." Abood v. Gorsuch, 703 P.2d
1158, 1160 (Alaska 1985). As we noted in Abood v. League of Women
Voters, 743 P.2d 333 (Alaska 1987), "[i]t is not possible to draw
the exact boundary separating justiciable and nonjusticiable
questions." Id. at 336. This conclusion rested on Poe v. Ullman,
367 U.S. 497 (1961). In his plurality opinion, Justice Frankfurter
wrote:
Justiciability is of course not a legal
concept with a fixed content or susceptible of scientific
verification. Its utilization is the resultant of many subtle
pressures, including the appropriateness of the issues for decision
. . . and the actual hardship to the litigants of denying them the
relief sought.
Id. at 508-09. The United States Supreme Court has identified a
number of elements, one or more of which is "[p]rominent on the
surface of any case held to involve a political question." Baker
v. Carr, 369 U.S. 186, 217 (1962). Of the elements identified by
the Supreme Court, the only one even arguably present in this case
is "the impossibility of a court's undertaking independent
resolution [of the case] without expressing lack of the respect due
coordinate branches of government." Id. For the reasons set out
in the text, we conclude that this element is not in fact present
here.
Footnote 11:
Under this test, review of internal military decisions
requires, first, an allegation that a recognized constitutional
right has been violated and a showing that all intraservice
remedies have been exhausted. If these prerequisites are met, four
additional factors must be weighed. Then, only if the balance
favors court interference, will review be undertaken.
Christoffersen, 855 F.2d at 1442.
Footnote 12:
It is within the province of this court to determine
constitutional issues and deprivation of constitutional rights.
See Kiester v. Humana Hosp. Alaska, Inc., 843 P.2d 1219, 1223
(Alaska 1992) (holding court would determine whether the procedures
employed by hospital conformed to Alaska Constitution and were in
accordance with basic principles of fairness and due process of
law); see also Emory v. Secretary of Navy, 819 F.2d 291, 294 (D.C.
Cir. 1987) ("The military has not been exempted from constitutional
provisions that protect the rights of individuals . . . . It is
precisely the role of the courts to determine whether those rights
have been violated."); Dillard v. Brown, 652 F.2d 316, 319-20 (3d
Cir. 1981) (upholding justiciability of sex discrimination and
constitutional privacy claims brought by female enlistee who was
discharged from New Jersey National Guard because constitution does
not prevent a federal court from entertaining an appropriate
constitutional claim brought against the military).
Footnote 13:
Bowen also argues that Boards for Correction of Military
Records of the various armed services are inappropriate to
determine constitutional claims. See Glines v. Wade, 586 F.2d 675,
678 (9th Cir. 1978), rev'd on other grounds, 444 U.S. 348 (1980)
("Resolving a claim founded solely upon a constitutional right is
singularly suited to a judicial forum and clearly inappropriate to
an administrative board.") (quoting Downen v. Warner, 481 F.2d 642,
643 (9th Cir. 1973)); but see Guerra v. Scruggs, 942 F.2d 270, 273
(4th Cir. 1991) ("The ABCMR has authority to consider claims of
constitutional . . . violations.").
Footnote 14:
The State cites to Zeman, 699 P.2d at 1280, where this court
stated that if
arguments (1) are not dependent on new facts,
(2) are closely related to [the party's] trial pleadings and (3)
could have been gleaned from the pleadings . . . [t]he appellant
need not have expressly presented every theory supporting an
argument before the trial court, but can expand or refine details
of an argument otherwise preserved on appeal.
Footnote 15:
In Breeden, this court held that a city employee's contractual
right to a thirty-day notice of termination created a protected
property interest. Id. at 926.
Footnote 16:
Although the State argued before the superior court that the
requirements of due process had been satisfied, this argument
referred only to the procedures in ANGR 35-03. The State did not
argue due process was satisfied by virtue of the existence of the
AFBCMR or the Air Force Discharge Review Board.
Footnote 17:
Alaska Statute 26.05.340(d) provides:
All matters relating to the organization,
discipline and government of the National Guard or Naval Militia,
not otherwise provided for by the laws of the United States, this
chapter, or regulations adopted by the president shall be governed
by regulations adopted by the adjutant general and approved by the
governor, and the regulations when adopted, have the same force and
effect as though enacted in this chapter.
Footnote 18:
ANGR 35-03 was superseded by Air National Guard Instruction
(ANGI) 36-101, effective December 29, 1993. Bowen's involuntary
separation occurred in May 1993, while ANGR 35-03 was still in
effect, and it is that regulation that applies to this case.
Footnote 19:
The superior court concluded that Bowen did not have a
property interest in continued employment, and Bowen attacks this
determination on appeal. We decline to review this question,
because our decision that he was deprived of a protected liberty
interest in his reputation and must be afforded a hearing on that
issue makes this issue moot.
