Eric R. Oliver v. Darryll D.M. Wong, etc., et al

Filing 34

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 ). Signed by JUDGE HELEN GILLMOR on 1/28/2016. --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) is GRANTED. There are no remaining claims or parties herein. The Clerk of Court is DIRECTED to enter judgment in favor of Defendants and to close the case. (ecs, )CERTIFICATE OF SERVICEParticipants registered to receive electronic notifications received this document electronically at the e-mail address listed on the Notice of Electronic Filing (NEF). Participants not registered to receive electronic notifications were served by first class mail on the date of this docket entry

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF HAWAII
)
)
ERIC R. OLIVER,
)
)
Plaintiff,
)
)
vs.
)
)
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.
)
)

Civ. No. 14-00584 HG-RLP

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)
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
1

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 intramilitary 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.

2

(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

3

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.

4

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.
1).

(Oliver Decl. at ¶¶ 17-20, ECF No. 26-

Plaintiff, in his capacity as a union steward and as an

5

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.
at ¶ 5, ECF No. 18-4).

(Lopina Decl.

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

6

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.”
29).

(Pla.’s Concise Statement of Facts at p., 3, ECF No.

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

7

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

8

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,

9

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

10

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 decisionmaking 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.
296, 300 (1983).

Chappell v. Wallace, 462 U.S.

The United States Supreme Court has warned that

the judiciary should not interfere with legitimate military
matters.
A.

Id.
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
11

Guard triggered application of the Feres doctrine of intramilitary 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 out of
activity incident to their military service.

Id.; see Jackson v.

United States, 110 F.3d 1484, 1486 (9th Cir. 1997).
The instant action involves a suit against both the Hawaii
Air National Guard and its Adjutant General, Darryll D.M. Wong,
rather than a federal armed forces branch.

The Feres doctrine is

equally applicable to the Hawaii Air National Guard and its
Adjutant General.

Crout v. Washington, 149 Fed. Appx. 601, 603

(9th Cir. 2005).
The decisions of the Ninth Circuit Court of Appeals have
made clear that the Feres doctrine applies to state National

12

Guards as well as with suits against National Guard officers by
fellow guardsmen.

Bowen, 125 F.3d at 804 n.2, 805; Stauber v.

Cline, 837 F.2d 395, 399 (9th Cir. 1988).
B.

The Feres Doctrine Applies to Employment Decisions
Regarding Dual Status Technicians

The Feres doctrine does not bar every suit brought by a
member of the military against the armed services.

The Ninth

Circuit Court of Appeals has held that the Feres doctrine applies
for claims that are “incident to service”.

McConnell v. United

States, 478 F.3d 1092, 1095 (9th Cir. 2007).
The Feres doctrine has been held to apply to cases in which
courts have been asked to examine personnel decisions of armed
force members.

Bowen, 125 F.3d at 804.

The Ninth Circuit Court

of Appeals has explained, however, that personnel actions are not
always integrally related to the military’s unique structure.
Mier v. Owens, 57 F.3d 747, 750 (9th Cir. 1995).
1.

Plaintiff Was a Dual Status Technician Which
Required Membership in the National Guard

The critical issue in evaluating if Plaintiff’s claims are
non-justiciable pursuant to the Feres doctrine is whether
Plaintiff was required, as a condition of his employment, to be a
member of the National Guard.
Pursuant to the National Guard Technicians Act, 32 U.S.C. §
13

709, persons may be employed as a civil service National Guard
technician.

There are two types of civil service technicians

authorized by the Act.

The first is the military dual status

technician which requires the person to be a member of the
National Guard and hold the military grade specified by the
Secretary concerned for that position.
U.S.C. § 10216.

32 U.S.C. § 709(b); 10

The second is the non-dual status technician,

which is not a military position as it does not require
membership in the National Guard or a corresponding military
grade.

32 U.S.C. § 709(c); 10 U.S.C. § 10217.

It is undisputed that Plaintiff was a military dual status
technician pursuant to 32 U.S.C. § 709(b), 10 U.S.C. § 10216,
which required his membership in the armed forces.
Plaintiff’s separation from the Hawaii Air National Guard
required that he be terminated from his position as a military
dual status technician.

The National Guard Technicians Act

provides that a person employed as a dual status technician who
“is separated from the National Guard or ceases to hold the
military grade specified by the Secretary concerned for that
position shall be promptly separated from military technician
(dual status) employment by the adjutant general of the
jurisdiction concerned.”

32 U.S.C. § 709(f)(1)(A).

In November 2011, the decision to deny Plaintiff’s
application for reenlistment was made pursuant to Air National

14

Guard Instruction 36-2002, Enlistment and Reenlistment in the Air
National Guard and as a Reserve of the Air Force.

(Lopina Decl.

at ¶¶ 11-12, ECF No. 18-4; Air National Guard Instruction 362002, dated March 1, 2004, Incorporating Change 4 from September
20, 2011, attached as Ex. 4 to Def.’s Motion, ECF No. 18-9).
Air National Guard Instruction 36-2002, provides:
When an individual desires to continue in his/her [Air
National Guard] status without a break in service, they
may request to reenlist or extend their current
enlistment. This request will be initiated by the
member to their commander. No individual will be
reenlisted or extended without the concurrence of the
commander. A commander may approve or deny
reenlistment or extension to any member of their
command. Continued retention in the [Air National
Guard] is a command prerogative and is not an inherent
right of any individual.
(Air National Guard Instruction 36-2002 dated March 1, 2004,
at p. 55, Chapter 4.1, attached as Ex. 4 to Def.’s Motion, ECF
No. 18-9).
Plaintiff’s commander, Captain Maedo, made the decision not
to approve Plaintiff’s application for reenlistment. (Lopina
Decl. at ¶¶ 5-6, ECF No. 18-4).

On January 6, 2012, Plaintiff

separated from the Hawaii Air National Guard and was given an
honorable discharge.

(Id. at ¶ 7).

As Adjutant General for the Hawaii Air National Guard,
Defendant Wong was required by federal statute to terminate
Plaintiff’s employment as a dual status technician after
Plaintiff ceased to be enlisted in the Hawaii Air National Guard.

15

32 U.S.C. § 709(f)(1)(A).
On January 20, 2012, Plaintiff was given a notice that
informed him that his employment as a dual status technician
would be terminated on February 21, 2012, as a result of
Plaintiff’s separation from the military.

(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’s notification of his termination specifies the reason
for his termination: “Loss of military membership because of
administrative revocation of membership in the appropriate branch
of service required for this position.”
2.

(Id.)

The Feres Doctrine Bars Judicial Review of
Employment Decisions Relating to Dual Status
Technicians

Plaintiff seeks judicial review of the decisions by the
Hawaii Air National Guard and the Adjutant General that led to
the denial of Plaintiff’s application for reenlistment and his
termination as a dual status technician.
In Mier v. Owens, 57 F.3d 747, 750 (9th Cir. 1995), the

16

Ninth Circuit Court of Appeals applied the Feres doctrine to find
that a dual status technician in the Army National Guard was
barred from challenging decisions related to his employment.

The

appellate court found that decisions regarding the dual status
technician’s alleged lack of promotion, suspension, and
retaliation were all integrally related to the military’s
structure and could not be reviewed by the court.

Id. at 751.

The Ninth Circuit Court of Appeals revisited the issue
regarding the application of the Feres doctrine to employment
decisions of dual status technicians in Zuress v. Donley, 606
F.3d 1249, 1253 (9th Cir. 2010).

In Zuress, the appeals court

reviewed the 1997 Amendments to the definition of dual status
technician in the National Guard Technicians Act.

Id.

The

appellate court found that the 1997 Amendments did not effect any
substantive change to the definition of dual status technician.
Id. at 1254.

The Ninth Circuit Court of Appeals agreed with the

Fifth Circuit Court of Appeals and held that dual status
technicians cannot seek judicial review of decisions regarding
the management, discipline, supervision, control, and other
personnel actions regarding their positions because such
decisions are integrally related to the military’s unique
structure.

Id. at 1253-55 (citing Bowen, 125 F.3d at 803).

Other Circuit Courts of Appeals have similarly found that
dual status technicians’ complaints relating to decisions made

17

about their employment are barred by the Feres doctrine because
their dual status positions are “irreducibly military in nature.”
Bowers v. Wynne, 615 F.3d 455, 461-466 (6th Cir. 2010); Filer v.
Donley, 690 F.3d 643, 648-690 (5th Cir. 2012).
C.

Plaintiff’s Claims Are Barred by the Feres Doctrine

Plaintiff’s Complaint contains the following counts:
Count I for declaratory relief;
Count II for a violation of Haw. Rev. Stat. § 378;
Count III for a violation of due process pursuant to both
the Hawaii State Constitution and the United States Constitution;
Count IV for a violation of the First Amendment pursuant to
both the Hawaii State Constitution and the United States
Constitution;
Count V for a violation of Haw. Rev. Stat. § 662;
Count VI for malicious discharge;
Count VII for negligent discharge;
Count VIII for intentional infliction of emotional distress;
Count IX for negligent infliction of emotional distress;
Count X for violation of public policy exception to the
employment “at will” rule regarding wrongful discharge;
Count XI for violation of covenant of good faith and fair
dealing in employment; and

18

Count XII for punitive damages.1
(Complaint at pp. 4-9, ECF No. 1-1).
Each of the twelve counts in Plaintiff’s Complaint is
subject to the Feres doctrine.

The Feres doctrine bars judicial

review of tort claims, state statutory and common law claims, and
constitutional claims that would require a civilian court to
examine decisions regarding management, discipline, supervision,
and control of members of the armed forces.

See Bowen, 125 F.3d

at 803-04; Zuress, 606 F.3d at 1253.
The Plaintiff argues that judicial review of the denial of
his application for reenlistment and his termination are not
barred by the Feres doctrine, because they were not “incident to
military service.”

Plaintiff relies on the Ninth Circuit Court

of Appeals’ decision in Jackson v. Tate, 648 F.3d 729, 733 (9th
Cir. 2011).
In Jackson, the Ninth Circuit Court of Appeals found that a
discharged serviceman was not barred from suing National Guard
recruiters who forged his signature on re-enlistment papers,
after the plaintiff had already been discharged from the National
Guard.

Id. at 734-735.

The appellate court found that the Feres

doctrine did not apply because “[t]he acts complained of occurred
after [the plaintiff’s] service had been completed, unrelated to

1

Count I for declaratory relief and Count XII for punitive
damages are request for relief and not separate causes of action.
19

any benefit or duty connected to a service obligation he has
already incurred...Jackson was engaged in civilian employment,
not subject to military supervision, command, or discipline.”
Id. at 734.
Here, unlike the plaintiff in Jackson, Plaintiff Oliver was
in a military dual status position at the time of the denial of
his reenlistment.

Plaintiff’s termination was statutorily

required as a result of the loss of his military status.
Plaintiff Oliver was subject to military supervision, command,
and discipline, and he was not in a purely civilian position.
The facts in Jackson are inapposite to the facts in the instant
case.

The holding in Jackson does not apply to the decisions of

a military commander in exercising his discretion not to offer a
military member the opportunity to reenlist.
The Ninth Circuit Court of Appeals’ holdings in Mier, 57
F.3d at 750, and Zuress, 606 F.3d at 1253, control.

As in Mier

and Zuress, Plaintiff’s claims are based on complaints about
personnel decisions made by the National Guard regarding an
employee in a dual status position.

Each of Plaintiff’s causes

of action seek review of the Hawaii Air National Guard and its
Adjutant General’s personnel decisions to deny Plaintiff’s
application to reenlist and to terminate him from his dual status
position.

As explained by the Ninth Circuit Court of Appeals in

Mier and Zuress, Plaintiff’s claims are barred because personnel

20

decisions regarding a dual status position are inherently
military in character due to the unique nature of a dual status
position that requires the employee to hold membership in the
military.
II.

Mindes Test
A.

The Mindes Test Bars Review of Counts III and IV in
Plaintiff’s Complaint

Counts III and IV in Plaintiff’s Complaint assert violations
of the United States Constitution and the Hawaii State
Constitution.
Count III asserts Plaintiff “held a property interest in his
employment [with the Hawaii National Guard] which is protected by
the Due Process clauses of the State and Federal Constitutions.
Defendants’ actions and decision toward non-reenlistment and
termination of Plaintiff Oliver’s employment with no explanation
and no rights to appeal the decision is a violation of the due
process clauses under the Hawaii and Federal Constitution.”
(Complaint at ¶¶ 31-32, ECF No. 1-1).
Count IV alleges that “Plaintiff Oliver, in exercise of his
First Amendment Rights, under the State of Hawaii and U.S.
Constitutions, objected to the lack of qualifications of his
supervisors in the work place,” and was subsequently denied
reenlistment and terminated.

(Complaint at ¶ 34-35, ECF No. 1-

21

1).

Plaintiff contends that “Defendants’ actions violated

Plaintiff Oliver’s First Amendment Rights under the State of
Hawaii and United States Constitutions.”

(Id. at ¶ 36, ECF No.

1-1).
The Mindes test is set forth in Mindes v. Seaman, 453 F.2d
197, 201-02 (5th Cir. 1971), and it was adopted by the Ninth
Circuit Court of Appeals in Wallace v. Chappell, 661 F.2d 729,
732-33 (9th Cir. 1981), rev’d on other grounds, 462 U.S. 296
(1983).
The Mindes test is applied to determine if judicial review
of internal military decisions is barred when the plaintiff’s
claim is based on a violation of either (1) the United States
Constitution, (2) a federal statute, or (3) a military
regulation.

Gonzalez v. Dep’t of Army, 718 F.2d 926, 929 (9th

Cir. 1983) (citing Wallace, 661 F.2d at 732; Mindes, 453 F.2d at
201); see Johnson v. United States Air Force, 2010 WL 1780231, *9
(E.D. Cal. Apr. 30, 2010).
Plaintiff Oliver’s Complaint does not allege a violation of
either a federal statute or a military regulation.
Counts III and IV in Plaintiff’s Complaint assert violations
of both the United States Constitution and the Hawaii State
Constitution.

The Mindes test does not apply to state

constitutional claims.

See Wallace, 661 F.2d at 732 (finding

that the Mindes test applies to claims asserting a violation of

22

the United States Constitution).
The only claims in Plaintiff’s Complaint that are subject to
the Mindes test are Plaintiff’s claims alleging violations of the
United States Constitution in Counts III and IV.

Wenger v.

Monroe, 282 F.3d 1068, 1072 (9th Cir. 2002).
The Ninth Circuit Court of Appeals has found that
application of the Mindes test is appropriate to review the
justiciability of alleged violations of the United States
Constitution in a dispute involving a National Guard technician.
Sebra v. Neville, 801 F.2d 1135, 1141 (9th Cir. 1986).
Here, the Court applies the Mindes test to Plaintiff’s
federal constitutional claims stated in Counts III and IV.
B.

The Mindes Test Requires Exhaustion of Available
Intraservice Administrative Remedies

The Mindes test requires two separate lines of inquiry.
Gonzalez v. Dep’t of Army, 718 F.2d 926, 929 (9th Cir. 1983).
The first line of inquiry consists of two prerequisites.
The Court must first determine if the plaintiff has established:
1.

Exhaustion of the Available Intraservice
Administrative Remedies; and,

2.

A Violation of the United States Constitution, a
Federal Statute, or a Military Regulation.

Id.
If the first two prerequisites have been met, the second
23

line of inquiry requires the court to weigh four factors to
determine if judicial review is appropriate, including
(1) the nature and strength of the plaintiff’s claim;
(2) the potential injury to the plaintiff if review is refused;
(3) the extent of interference with military functions; and,
(4) the extent to which military discretion or expertise is
involved.

Wilkins v. United States, 279 F.3d 782, 788 n.3 (9th

Cir. 2002).
The Court need not reach the second line of inquiry in the
instant action, because Plaintiff has not established that he
exhausted the available intraservice administrative remedies as
required by the Mindes test.
1.

Exhaustion of Available Intraservice
Administrative Remedies

The Mindes test requires that the plaintiff exhaust
available intraservice administrative remedies.
at 1072.

Wenger, 282 F.3d

Plaintiff failed to exhaust his intraservice

administrative remedies.

Lawrence v. Hawaii Air National Guard,

126 Fed. Appx. 835, 837 (9th Cir. 2005).

Plaintiff did not

pursue any of the administrative remedies that were available to
challenge the denial of his reenlistment application and his
termination.
Plaintiff states in his Declaration that he pursued
administrative remedies by filing grievances with his Union,
24

sending a letter to a state senator, and meeting with Adjutant
General Wong in November 2011.2 (Oliver Decl. at ¶¶ 48, 58, 68,
96, ECF No. 26-1).
All of the actions taken by the Plaintiff occurred in 2011
before he was terminated from the Hawaii Air National Guard in
February 2012.

The actions taken by the Plaintiff in 2011 were

not an attempt to pursue administrative remedies to challenge the
denial of his reenlistment application and termination of
employment.

Rather, the grievances filed by the Plaintiff were

about Plaintiff’s supervisor, Daniel Lopez, and concerned
Plaintiff’s opinion that Lopez was not qualified to supervise
Plaintiff and other technicians.

The grievances were not an

objection to the decisions to deny Plaintiff’s reenlistment and
to terminate his employment in 2012.
Plaintiff states in his Declaration that he was never
informed of the process by which he could challenge the decision
not to allow him to reenlist.
No. 26-1).

(Oliver Decl. at ¶¶ 128, 132, ECF

Contrary to Plaintiff’s statement, Plaintiff was

2

Prior to the denial of Plaintiff’s reenlistment
application and his termination, the Plaintiff engaged in the
following actions: Union Grievance filed by Plaintiff Oliver
against Daniel Lopez, attached as Ex. 4 to Pla.’s Opp., ECF No.
26-6; Union Grievance filed by Plaintiff against Daniel Lopez
dated August 24, 2011, attached as Ex. 7, ECF No. 26-9; Union
Charge filed with the Federal Labor Relations Authority regarding
Lopez, dated August 18, 2011, attached as Ex. 8, ECF No. 26-10;
Letter to Senator Pohai Ryan, dated September 20, 2011, attached
as Ex. 10, ECF No. 26-12).
25

informed that he had the right to request review by the Air Force
Board of Correction of Military Records by letter dated February
6, 2012.

(Letter to Plaintiff from the Inspector General,

Department of Defense, dated Feb. 6, 2012, stating that “Under 10
U.S.C. 1034, you may request a review of the matter by the Air
Force Board for Correction of Military Records (AFBCMR) should
you wish further consideration,” attached as Ex. 14 to Pla.’s
Opp., ECF No. 26-16).

The letter contained the name, telephone

number and e-mail address of a person who Plaintiff could contact
if he had any questions about the application process and the
procedures to follow before the Air Force Board for Correction of
Military Records.

(Id.)

Plaintiff has presented no evidence that he exhausted his
available intraservice administrative remedies.

Plaintiff’s

self-serving and broad statement that he “did pursue
administrative relief through the Union grievance procedure and
appropriate agency review” in his Concise Statement of Facts does
not create a genuine issue of material fact as to his failure to
exhaust the available intraservice remedies.

Villiarimo v. Aloha

Island Air, Inc., 281 F.3d 1054, 1061 (9th Cir. 2002) (finding
that a party’s uncorroborated allegations and “self-serving
testimony” do not create a genuine issue of material fact).
Plaintiff could have sought administrative review pursuant
to the Federal Tort Claims Act, the National Guard Military

26

Discrimination Complaint System, the Air Force Board of
Correction of Military Records, or through the Hawaii Code of
Military Justice, but he failed to pursue any avenue of appeal.
a.

Federal Tort Claims Act

Pursuant to the Federal Tort Claims Act, a claimant seeking
money damages from the United States is required to first submit
his claim to the appropriate federal agency before suing the
United States for money damages for injury, personal injury, or
loss of property caused by a negligent or wrongful act of an
employee of the federal government acting in the scope of his
employment.

Federal Tort Claims Act (“FTCA”), 28 U.S.C. § 2675.

A plaintiff’s administrative remedy is exhausted pursuant to
the FTCA if:
(1)

the agency has denied the claim in writing; or,

(2)

the agency has failed to issue a final disposition of
the claim six months after it was filed.

28 U.S.C. § 2675(a)3; Jerves v. United States, 966 F.2d 517, 519

3

The FTCA in 28 U.S.C. § 2675(a) provides:

An action shall not be instituted upon a claim against
the United States for money damages for injury ...
caused by the negligent or wrongful act or omission of
any employee of the Government while acting within the
scope of his office or employment, unless the claimant
shall have first presented the claim to the appropriate
Federal agency and his claim shall have been finally
denied by the agency in writing and sent by certified
or registered mail. The failure of an agency to make
27

(9th Cir. 1992).
If no such claim is presented to the appropriate federal
agency within two years after the claim accrues, a tort claim
shall be forever barred.

28 U.S.C. § 2401(b).

The Ninth Circuit Court of Appeals has made clear that the
FTCA exhaustion requirement is jurisdictional and must be adhered
to strictly.

Vacek v. U.S. Postal Serv., 447 F.3d 1248, 1250

(9th Cir. 2006).
In the case before this Court, Plaintiff Oliver sued the
Hawaii National Guard, which is part of the National Guard, a
federal agency, along with Adjutant General Wong, in his official
capacity, who is a federal officer.

Gilliam v. Miller, 973 F.2d

760, 762 (9th Cir. 1992) (finding the National Guard is a federal
agency and personnel decisions over federal technicians are in
the capacity of a federal agency); Christoffersen v. Washington
State Air Nat’l Guard, 855 F.2d 1437, 1443-45 (9th Cir. 1988).
Plaintiff seeks money damages in his Complaint.
at pp. 9-10, ECF No. 1-1).

(Complaint

Defendant has submitted evidence that

Plaintiff did not submit his claim to an appropriate federal
agency before he filed suit.

(Lopina Decl. at ¶¶ 17, 21, ECF No.

final disposition of a claim within six months after it
is filed shall, at the option of the claimant any time
thereafter, be deemed a final denial of the claim for
purposes of this section ....
28 U.S.C. § 2675(a).
28

18-4).
Plaintiff has not provided any evidence that he filed a
claim for monetary damages against the Defendants Hawaii Air
National Guard or Adjutant General Wong with any federal agency.
b.

The National Guard Military Discrimination
Complaint System

Plaintiff did not challenge the decisions not to allow him
to reenlist and to terminate his employment by using the National
Guard Military Discrimination Complaint System, NGR 600-22.
The purpose of NGR 600-22 is to resolve and settle
allegations and complaints of discrimination in the National
Guard.

(Regulations for the Military Discrimination Complaint

System for the Air National Guard, NGR 600-22, at p. 4, attached
as Ex. 6 to Def.’s Motion, ECF No. 18-11).

Any aggrieved

individual who believes that he has been discriminated against
for having engaged in a protected activity, as alleged by
Plaintiff in his Complaint, may filed a complaint pursuant to the
National Guard Military Discrimination Complaint System.

(Id. at

p. 5).
Plaintiff has provided no evidence that he filed a complaint
pursuant to the National Guard Military Discrimination Complaint
Systems or exhausted his administrative remedies pursuant to NGR
600-22.

(Lopina Decl. at ¶¶ 19, 21, ECF No. 18-4).

29

c.

The Air Force Board for Correction of
Military Records

The Air Force Board for Correction of Military Records,
pursuant to 10 U.S.C. § 1552, has the power to reinstate a
claimant to active federal reserve status, restore his pay, and
order back pay.

Christofferson, 855 F.2d at 1444.

Plaintiff contends in his Complaint filed in this Court that
the Hawaii Air National Guard’s decision not to reenlist him was
retaliatory in nature.

Plaintiff did not pursue relief with the

Air Force Board for Correction of Military Records.
The Air Force Board for Correction of Military Records can
recommend correction of military records to remove an error or
injustice in a Air Force member’s military record.

(Air Force

Instruction 36-2603, dated March 1, 1996, setting forth the
procedures for correction of military records, attached as Ex. 7
to Def.’s Motion, ECF No. 18-12).
Plaintiff provided no evidence that he filed a claim before
the Air Force Board for Correction of Military Records.
Plaintiff has not demonstrated that he exhausted any of the
available administrative remedies.

(Lopina Decl. at ¶ 18, ECF

No. 18-4).
d.

The Hawaii Code of Military Justice

The Hawaii Code of Military Justice, set forth in Haw. Rev.
30

Stat. § 124A-164, provides:
Any member of the state military forces who believes
the member’s self wronged by the member’s commanding
officer, and who, upon due application to that
commanding officer, is refused redress, may complain to
any superior commissioned officer, who shall forward
the complaint to the governor or adjutant general.
Haw. Rev. Stat. § 124A-164.
Plaintiff states that he filed Union grievances and met with
Adjutant General Wong in November 2011.
58, 68, 96, ECF No. 26-1).

(Oliver Decl. at ¶¶ 48,

These events were not an attempt to

review the denial of Plaintiff’s reenlistment application and
termination pursuant to the Hawaii Code of Military Justice.
Plaintiff filed grievances and met with Adjutant General Wong in
November 2011 before the denial of Plaintiff’s reenlistment
application and his termination in February 2012.
Plaintiff has provided no evidence that he filed for any
administrative relief pursuant to Haw. Rev. Stat. § 124A-164
after his application for reenlistment was denied and he was
terminated from employment.

(Lopina Decl. at ¶ 20, ECF No. 18-

4).
Plaintiff’s failure to exhaust his available intraservice
administrative remedies precludes judicial review of his claims.
See Wenger, 282 F.3d at 1072; Lawrence, 126 Fed. Appx. at 837.
2.

Plaintiff’s United States Constitutional Claims

While it is not necessary to reach the federal
31

constitutional claims because Plaintiff did not exhause his
administrative remedies, the Court finds they would not be
successful even if exhaustion had occurred.
a.

Count III: Due Process Claim

Count III asserts Plaintiff “held a property interest in his
employment [with the Hawaii National Guard].”

(Complaint at ¶

31, ECF No. 1-1).
Plaintiff did not have a recognized property interest in
continued employment with the Hawaii Air National Guard pursuant
to the due process clause of the United States Constitution.

The

United States Supreme Court has found that denying a military
technician’s reenlistment pursuant to 32 U.S.C. § 709(e)(3) does
not provide a foundation for a constitutional due process claim.
Tennessee v. Dunlap, 426 U.S. 312, 316 (1976).
The Ninth Circuit Court of Appeals has held that dual status
technicians have “no constitutionally protected property interest
in continued employment” with a state’s National Guard.
Christoffersen v. Washington State Air Nat’l Guard, 855 F.2d
1437, 1443 (9th Cir. 1988); see Sebra v. Neville, 801 F.2d 1135,
1141 (9th Cir. 1986) (finding that the plaintiff did not have a
property interest to establish a recognized constitutional claim
to support reviewability under the Mindes test).
Plaintiff asserts that in January 2012 the Hawaii Air

32

National Guard should have applied Air National Guard Instruction
36-2002, an Instruction the Air National Guard did not adopt
until October 1, 2012.

(Air National Guard Instruction 36-2002,

dated October 1, 2012, attached as Ex. 17 to Pla.’s Opp., ECF No.
26-19).

The October 1, 2012 Instruction 36-2002 provides for a

new appeal process for the denial of reenlistment applications
which would result in a written explanation as to the reason for
denying reenlistment.

(Id. at p. 67, Chapter 4.7, ECF No. 26-

19).
The October 1, 2012 Instruction was not in effect when
Plaintiff’s reenlistment application was denied in January 2012
and cannot serve as a basis for a due process violation.
Defendants complied with the Air National Guard Instruction
36-2002, dated March 1, 2004, which was in effect and applicable
to Plaintiff in January 2012.

The March 2004 Instruction

provided that “[c]ontinued retention in the [Air National Guard]
is a command prerogative and is not an inherent right of any
individual.”

(Air National Guard Instruction 36-2002, dated

March 1, 2004, at p. 55, Chapter 4.1, attached as Ex. 4 to Def.’s
Motion, ECF No. 18-9).

Plaintiff has not demonstrated a due

process violation.
b.

Count IV: First Amendment Claim

Count IV alleges that Plaintiff Oliver “objected to the lack

33

of qualifications of his supervisors in the work place,” and was
subsequently denied reenlistment and terminated in violation of
the First Amendment of the United States Constitution.
(Complaint at ¶ 34-36, ECF No. 1-1).
The Ninth Circuit Court of Appeals has found that a dual
status employee’s challenges to his non-retention and termination
based on alleged whistleblowing and protected speech were not
reviewable pursuant to the Mindes test.
at 1443.

Christoffersen, 855 F.2d

The appellate court found that the plaintiff’s claims

relating to the First Amendment were insufficient to support
review.

Id.

The Ninth Circuit Court of Appeals explained that

“whatever First Amendment interests are implicated by this
exercise are outweighed by Washington State’s strong interest in
promoting the efficiency of the military services it provides
through the Washington Guard.

The ability of the Washington

Guard to make even routines personnel decisions would be severely
impaired if we were to hold otherwise.”

Id.

The Court is unable to review the federal constitutional
claims contained in Counts III and IV of Plaintiff’s Complaint
pursuant to the Mindes test.

Plaintiff did not exhaust his

available intraservice administrative remedies.
If the Court had been able to reach the Plaintiff’s federal
constitutional claims, Plaintiff still would not have prevailed.
There is no due process violation.

34

The First Amendment interest

does not outweigh the military necessity of the Hawaii Air
National Guard.
Defendant’s Motion for Summary Judgment (ECF No. 18) is
GRANTED.
CONCLUSION
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) is
GRANTED.
There are no remaining claims or parties herein.
The Clerk of Court is DIRECTED to enter judgment in favor of
Defendants and to close the case.
IT IS SO ORDERED.
DATED: January 28, 2016, Honolulu, Hawaii.

/s/ Helen Gillmor
Helen Gillmor
United States District Judge

Eric R. Oliver vs. 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 320; Civ. No. 14-00584 HG-RLP; 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)
35