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Oliver v. Wong

United States District Court, D. Hawaii

January 28, 2016

ERIC R. OLIVER, Plaintiff,
v.
DARRYLL D.M. WONG, in his official capacity as Adjutant General of the Hawaii National Guard; HAWAII NATIONAL GUARD; JOHN DOES 1-10; JANE DOES 1-10; DOE PARTNERSHIPS 3-20; DOE CORPORATIONS 3-20; DOE GOVERNMENTAL UNITS 3-20; OTHER ENTITIES 3-20, Defendants.

ORDER GRANTING DEFENDANTS DARRYLL D.M. WONG, IN HIS OFFICIAL CAPACITY AS ADJUTANT GENERAL OF THE HAWAII NATIONAL GUARD, AND THE HAWAII NATIONAL GUARD'S MOTION FOR SUMMARY JUDGMENT (ECF No. 18)

HELEN GILLMOR, District Judge.

Plaintiff Eric. R. Oliver was an enlisted member of the Hawaii Air National Guard who was also employed by the Hawaii Air National Guard as a military dual status technician. Plaintiff's dual status position required him to be enlisted in the National Guard. Before Plaintiff's enlistment contract expired, Plaintiff applied for reenlistment, but his application was denied. As a result, Plaintiff was terminated from his employment with the Hawaii Air National Guard in February 2012.

Plaintiff's Complaint alleges state law and constitutional claims against Defendant Darryll D.M. Wong, in his official capacity as the Adjutant General of the Hawaii National Guard, and the Defendant Hawaii National Guard. Plaintiff asserts in his Complaint that his reenlistment application was denied in retaliation for Plaintiff engaging in whistleblowing and union activities.

Defendants filed a Motion to Dismiss, or in the alternative, a Motion for Summary Judgment as to each of Plaintiff's claims, asserting that they are barred by the intra-military immunity doctrine. Defendants also assert that Plaintiff failed to exhaust available intraservice remedies regarding the denial of his reenlistment and the termination of his employment.

Plaintiff asserts his claims are not barred by the intra-military immunity doctrine because the decision not to reenlist him and to terminate his employment did not involve consideration of military issues. Plaintiff argues that he exhausted his available intraservice administrative remedies.

The Court construes Defendants' Motion as a Motion for Summary Judgment. The Defendants' Motion for Summary Judgment (ECF No. 18) is GRANTED.

PROCEDURAL HISTORY

On May 25, 2012, Plaintiff Eric R. Oliver filed a Complaint in the Circuit Court of the First Circuit, State of Hawaii. (ECF No. 1-1).

On December 31, 2014, the Defendants Darryll D.M. Wong, in his official capacity as Adjutant General of the Hawaii National Guard, and the Hawaii National Guard, removed the state court action to the United States District Court, District of Hawaii. (ECF No. 1).

On November 4, 2015, Defendants filed DEFENDANTS DARRYLL D.M. WONG, IN HIS OFFICIAL CAPACITY AS ADJUTANT GENERAL OF THE HAWAII NATIONAL GUARD, AND THE HAWAII NATIONAL GUARD'S MOTION TO DISMISS COMPLAINT OR, IN THE ALTERNATIVE, MOTION FOR SUMMARY JUDGMENT. (ECF No. 18).

On the same date, Defendants filed DARRYLL D.M. WONG, IN HIS OFFICIAL CAPACITY AS ADJUTANT GENERAL OF THE HAWAII NATIONAL GUARD AND HAWAII NATIONAL GUARD'S CONCISE STATEMENT OF FACTS IN SUPPORT OF DEFENDANTS' MOTION TO DISMISS COMPLAINT OR, IN THE ALTERNATIVE, MOTION FOR SUMMARY JUDGMENT. (ECF No. 19).

On November 6, 2015, the Court issued a briefing schedule. (ECF No. 20).

On November 20, 2015, Plaintiff submitted a letter requesting an extension of time to file his Opposition. (ECF No. 23).

On the same date, the Court issued a Minute Order that provided Plaintiff an extension of time to file his Opposition and also provided Defendants an extension of time to file their Reply. (ECF No. 24).

On December 11, 2015, Plaintiff filed MEMORANDUM IN OPPOSITION TO DEFENDANT DARRYLL D.M. WONG, IN HIS OFFICIAL CAPACITY AS ADJUTANT GENERAL OF THE HAWAII NATIONAL GUARD AND THE HAWAII NATIONAL GUARD'S MOTION TO DISMISS OR, IN THE ALTERNATIVE, MOTION FOR SUMMARY JUDGMENT. (ECF No. 26).

Also on December 11, 2015, Plaintiff filed PLAINTIFF'S SEPARATE AND CONCISE STATEMENT OF FACTS IN OPPOSITION TO DEFENDANTS' MOTION TO DISMISS OR, IN THE ALTERNATIVE, MOTION FOR SUMMARY JUDGMENT. (ECF No. 29).

On December 31, 2015, Defendants filed DEFENDANTS' REPLY TO PLAINTIFF'S MEMORANDUM IN OPPOSITION TO DEFENDANT DARRYLL D.M. WONG, IN HIS OFFICIAL CAPACITY AS ADJUTANT GENERAL OF THE HAWAII NATIONAL GUARD AND THE HAWAII NATIONAL GUARD'S MOTION TO DISMISS OR, IN THE ALTERNATIVE, MOTION FOR SUMMARY JUDGMENT. (ECF No. 30).

On the same date, Defendants filed DARRYLL D.M. WONG, IN HIS OFFICIAL CAPACITY AS ADJUTANT GENERAL OF THE HAWAII NATIONAL GUARD, AND HAWAII NATIONAL GUARD'S COUNTER CONCISE STATEMENT OF FACTS IN REPLY TO PLAINTIFF'S SEPARATE AND CONCISE STATEMENT OF FACTS IN OPPOSITION TO DEFENDANTS' MOTION TO DISMISS OR, IN THE ALTERNATIVE, MOTION FOR SUMMARY JUDGMENT. (ECF No. 31).

On January 7, 2016, the Court held a hearing on Defendants' Motion for Summary Judgment.

BACKGROUND

The Parties agree to the following facts:

On January 7, 1997, Plaintiff Eric R. Oliver enlisted with the Hawaii Air National Guard. (Declaration of David A. Lopina, Staff Judge Advocate of the Hawaii National Guard ("Lopina Decl."), at ¶ 3, ECF No. 18-4; Declaration of Eric R. Oliver ("Oliver Decl.") at ¶ 5, ECF No. 26-1).

Plaintiff served in a military capacity with the Hawaii Air National Guard as a Staff Sergeant and he was employed by the Hawaii Air National Guard as a military dual status fuel systems technician. (Lopina Decl. at ¶¶ 4, 8-10, ECF No. 18-4; Oliver Decl. at ¶ 7, ECF No. 26-1).

Plaintiff's "military technician (dual status)" position required him to be enlisted in the Hawaii Air National Guard in order to remain employed in the dual status position pursuant to 32 U.S.C. § 709(b)(1). (Lopina Decl. at ¶ 11, ECF No. 18-4; Oliver Decl. at ¶ 10, ECF No. 26-1; Deposition of Eric R. Oliver ("Oliver Depo.") at p. 31, attached as Ex. 9 to Def.'s Motion, ECF No. 18-14).

Plaintiff was a union steward for the American Federation of Government Employees from 2009 to 2011 while he was employed in his dual status position. (Oliver Decl. at ¶¶ 17-20, ECF No. 26-1). Plaintiff, in his capacity as a union steward and as an individual employee of the Hawaii National Guard, made complaints, filed grievances, and submitted unfair labor practice complaints about his supervisor Daniel Lopez. (Id. at ¶ 20).

Enlisted personnel in the Hawaii Air National Guard sign an enlistment contract for a fixed term of service. (Lopina Decl. at ¶ 5, ECF No. 18-4). In 2011, Plaintiff sought reenlistment with the Hawaii Air National Guard as his enlistment contract was set to expire on January 6, 2012. (Lopina Decl. at ¶¶ 5, 7, ECF No. 18-4; Oliver Decl. at ¶ 8, ECF No. 26-1; Oliver Depo. at p. 31, ECF No. 18-14).

Plaintiff's application for reenlistment was denied by his commander, Captain Paul Maedo, and approved by Defendant Darryll D.M. Wong, Adjutant General of the Hawaii National Guard. (Lopina Decl. at ¶¶ 5-6, 15-16, ECF No. 18-4; Oliver Decl. at ¶ 8, ECF No. 26-1; Oliver Depo. at p. 32, ECF No. 18-14).

On January 6, 2012, Plaintiff received an honorable discharge of service from the Hawaii Air National Guard. (Lopina Decl. at ¶ 7, ECF No. 18-4; Oliver Decl. at ¶ 6, ECF No. 26-1; Order from the Dept. of the Air Force, dated Apr. 16, 2012, stating Plaintiff was "honorably discharged from the [Hawaii Air National Guard] effective 6 Jan 2012, " attached as Ex. 10 to Pla.'s Reply, ECF No. 30-2).

On January 20, 2012, Plaintiff was informed that he would be separated from his military dual status technician position as a result of his loss of military membership. (Lopina Decl. at ¶ 12, ECF No. 18-4; Notice of Separation to Staff Sergeant Eric R. Oliver from State of Hawaii Department of Defense, dated Jan. 20, 2012, attached as Ex. 20 to Pla.'s Opp., ECF No. 26-22).

Plaintiff was terminated from his employment with the Hawaii Air National Guard on February 21, 2012. (Notification of Personnel Action for Eric R. Oliver, Termination Effective Date 2-21-12, attached as Ex. 19 to Pla.'s Opp., ECF No. 26-21).

Plaintiff did not pursue administrative remedies pursuant to either the Federal Tort Claims Act, the National Guard Military Complaint System, the Air Force Board for Correction of Military Records, or the Hawaii Code of Military Justice. (Lopina Decl. at ¶¶ 17-21, ECF No. 18-4).

Plaintiff claims that he "did pursue administrative relief through the Union grievance procedure and appropriate agency review." (Pla.'s Concise Statement of Facts at p., 3, ECF No. 29). Plaintiff claims that he was not informed of the available administrative process to challenge the decision denying his application for reenlistment. (Oliver Decl. at ¶¶ 128, 132, ECF No. 26-1).

The evidence shows Plaintiff was timely informed by letter about the process to seek relief from the Air Force Board for Correction of Military Records. (Letter from the Inspector General, Department of Defense, dated Feb. 6, 2012, informing Plaintiff that he may request review by the Air Force Board for Correction of Military Records, attached as Ex. 14 to Pla.'s Opp., ECF No. 26-16).

STANDARD OF REVIEW

Defendants' Motion is titled a "Motion to Dismiss Complaint or, in the Alternative, Motion for Summary Judgment." (ECF No. 18). The Court considers Defendants' Motion as a Motion for Summary Judgment as there are no genuine issues of material fact presented in the filings.

Summary judgment is appropriate when there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c). To defeat summary judgment there must be sufficient evidence that a reasonable jury could return a verdict for the nonmoving party. Nidds v. Schindler Elevator Corp., 113 F.3d 912, 916 (9th Cir. 1997).

The moving party has the initial burden of "identifying for the court the portions of the materials on file that it believes demonstrate the absence of any genuine issue of material fact." T.W. Elec. Serv., Inc. v. Pacific Elec. Contractors Ass'n, 809 F.2d 626, 630 (9th Cir. 1987) (citing Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986)). The moving party, however, has no burden to negate or disprove matters on which the opponent will have the burden of proof at trial. The moving party need not produce any evidence at all on matters for which it does not have the burden of proof. Celotex, 477 U.S. at 325. The moving party must show, however, that there is no genuine issue of material fact and that he or she is entitled to judgment as a matter of law. That burden is met by pointing out to the district court that there is an absence of evidence to support the non-moving party's case. Id.

If the moving party meets its burden, then the opposing party may not defeat a motion for summary judgment in the absence of probative evidence tending to support its legal theory. Commodity Futures Trading Comm'n v. Savage, 611 F.2d 270, 282 (9th Cir. 1979). The opposing party must present admissible evidence showing that there is a genuine issue for trial. Fed.R.Civ.P. 56(e); Brinson v. Linda Rose Joint Venture, 53 F.3d 1044, 1049 (9th Cir. 1995). "If the evidence is merely colorable, or is not significantly probative, summary judgment may be granted." Nidds, 113 F.3d at 916 (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249-50 (1986)).

The court views the facts in the light most favorable to the non-moving party. State Farm Fire & Casualty Co. v. Martin, 872 F.2d 319, 320 (9th Cir. 1989). Opposition evidence may consist of declarations, admissions, evidence obtained through discovery, and matters judicially noticed. Fed.R.Civ.P. 56(c); Celotex, 477 U.S. at 324. The opposing party cannot, however, stand on its pleadings or simply assert that it will be able to discredit the movant's evidence at trial. Fed.R.Civ.P. 56(e); T.W. Elec. Serv., 809 F.2d at 630. The opposing party cannot rest on mere allegations or denials. Fed.R.Civ.P. 56(e); Gasaway v. Northwestern Mut. Life Ins. Co., 26 F.3d 957, 959-60 (9th Cir. 1994). When the non-moving party relies only on its own affidavits to oppose summary judgment, it cannot rely on conclusory allegations unsupported by factual data to create an issue of material fact. Hansen v. United States, 7 F.3d 137, 138 (9th Cir. 1993); see also National Steel Corp. v. Golden Eagle Ins. Co., 121 F.3d 496, 502 (9th Cir. 1997).

ANALYSIS

I. The Feres Doctrine

The holding from Feres v. United States, 340 U.S. 135, 146 (1950) has become known as the Feres doctrine. In Feres, the United States Supreme Court held that members of the armed services cannot sue the Government for injuries pursuant to the Federal Tort Claims Act that "arise out of or are in the course of activity incident to service." Feres, 340 U.S. at 146; Bowen v. Oistead, 125 F.3d 800, 803 (9th Cir. 1997).

Courts have interpreted the Feres doctrine broadly and have gone as far as saying "practically any suit that implicates the military judgments and decisions... runs the risk of colliding with Feres." Bowen, 125 F.3d at 803 (internal citation marks omitted) (quoting Persons v. United States, 925 F.2d 292, 295 (9th Cir. 1991)).

"Federal courts restrict their review of military decision-making not because they lack jurisdictional power to hear military disputes, but out of deference to the special function of the military in our constitutional structure and in the system of national defense. Military disputes thus raise questions of justiciability rather than jurisdiction." Sebra v. Neville, 801 F.2d 1135, 1141 (9th Cir. 1986).

Courts avoid review of military decisions because of the many differences between military and civilian life, finding that the military is a specialized community that is governed by unique demands and discipline. Chappell v. Wallace, 462 U.S. 296, 300 (1983). The United States Supreme Court has warned that the judiciary should not interfere with legitimate military matters. Id.

A. The Feres Doctrine Applies to Suits Against The Hawaii National Guard and Its Commanding Officer

Suits that implicate military judgments and decisions run the risk of colliding with the Feres doctrine of intra-military immunity. Bowen v. Oistead, 125 F.3d 800, 803 (9th Cir. 1997).

In Bowen, the plaintiff's status as a member of the National Guard triggered application of the Feres doctrine of intra-military immunity. Id . The Feres doctrine barred the plaintiff's tort and constitutional claims against federal and state military officials that arose from the involuntary termination of plaintiff's tour of duty in the Active Guard/Reserve Program. Id.

The Ninth Circuit Court of Appeals in Bowen found that the plaintiff's claims were barred pursuant to the Feres doctrine even though he was serving as a member of the Alaska Air National Guard under direct authority of state officers, and he was not on active duty with the United States Air Force Reserve. Id . The appeals court held that members of a state's National Guard are service members for purposes of the Feres doctrine and they are barred from bringing suits for injuries that arise ...


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