United States Court of Appeals
For the First Circuit
____________________
No. 98-2053
EUGENE E. WIGGINTON,
Plaintiff, Appellant,
v.
REGINALD A. CENTRACCHIO, ET AL.,
Defendants, Appellees.
____________________
Before
Torruella, Chief Judge,
Cyr, Senior Circuit Judge,
and Pollak,* Senior District Judge.
_____________________
ORDER FOR CERTIFICATION OF CERTAIN QUESTIONS
TO THE RHODE ISLAND SUPREME COURT
Entered: March 13, 2000
Pursuant to Rule 6 of the Rules of the Supreme Court
*Of the Eastern District of Pennsylvania, sitting by
designation.
of Rhode Island, the United States Court of Appeals for the
First Circuit hereby certifies to the Supreme Court of Rhode
Island
certain questions of Rhode Island law which may be
determinative of a cause pending in the Court of Appeals and
as to which it appears to the Court of Appeals that there is
no controlling precedent in the decisions of the Supreme Court
of Rhode Island. Concurrently with the entry of this
Certification Order, the Court of Appeals has issued an
Opinion in the pending litigation. That Opinion describes the
history and current posture of the litigation, sets out the
views of the Court of Appeals on certain questions of federal
law which currently frame the litigation, and undertakes to
explain why an authoritative resolution by the Supreme Court
of Rhode Island of certain questions of Rhode Island law may
prove determinative.
Since the Opinion of the Court of Appeals goes into
greater detail, both as to historical fact and as to law, than
the Supreme Court of Rhode Island may find it useful to
pursue, the Court of Appeals has prepared a summary statement
of (1) the facts giving rise to the pending litigation, (2)
the course taken by the litigation up to this time, and (3)
the questions of Rhode Island law on which the Court of
Appeals seeks advice from the Supreme Court of Rhode Island:
(1)
Eugene E. Wigginton served in the United States
Marines for three years, from 1967 to 1970, and was then
honorably discharged. In 1979, he was commissioned as an
officer in the United States Army Reserve and, concomitantly,
as an officer in the United States Army National Guard and the
Rhode Island Army National Guard (“RIANG”) with the rank of
Second Lieutenant, assigned to a RIANG Military Police unit.
By 1996, Eugene Wigginton had risen to the rank of Major, was
serving as a RIANG Public Affairs Officer, and was performing
the duties of Education Officer for RIANG.
In January of 1996, as Major Wigginton was nearing
completion of his twentieth year of aggregate (Marine and
RIANG) military service, he was advised that, in May of 1996,
a Selective Retention Board would be convened pursuant to
National Guard Regulation 635-102 (“Personnel Separations
OFFICERS AND WARRANT OFFICERS SELECTIVE RETENTION”). The
principal stated purpose of National Guard Regulation (“NGR”)
635-102 is to “[e]nsur[e] that only the most capable officers
are retained beyond 20 years of qualifying service for
assignment to the comparatively few higher level command and
staff positions.” The Selective Retention Board considered ten
RIANG commissioned and warrant officers at its May 13, 1996
meeting. Major Wigginton was one of four who were recommended
for non-retention. Pursuant to the Board’s recommendation,
Brigadier General Reginald A. Centracchio, Adjutant General of
Rhode Island, wrote to Major Wigginton on May 14, advising him
that he was not to be retained and, accordingly, was to be
separated as of July 13, 1996. In due course, Major Wigginton
was separated as of that date.
(2)
In September of 1996, Major Wigginton initiated this
litigation. Suit was brought in the Superior Court for
Providence County against General Centracchio and the State of
Rhode Island. The complaint contained two counts, each of
which alleged that the conduct complained of had “deprived
plaintiff of his civil rights pursuant to 42 U.S.C. section
1983.”
The first count alleged that Major Wigginton’s non-
retention was “in violation of [R.I. Gen. Laws §] 30-3-13.”
That statutory provision, which has been part of the military
code governing RIANG since 1956, states, inter alia, that
“[a]ll commissioned officers of the staff corps and
departments, hereafter appointed, . . . shall hold their
positions until they have reached the age of sixty (60) years,
unless retired prior to that time by reason of resignation or
disability, or for cause to be determined by an efficiency
board or a court-martial legally convened for that purpose.”
It was further alleged that Major Wigginton had not been
retired by reason of resignation, disability, or dismissal for
cause.
The second count alleged that the “criteria set
forth in [NGR] 635-102" governing the retention/non-retention
decision “were not followed” in Major Wigginton’s case; this
claim has not been pursued before the Court of Appeals. The
second count also alleged that Major Wigginton had never “been
informed of the reasons why he was not selected for retention”
- a failure characterized as “depriv[ing] the plaintiff of due
process of law.”
On the basis of the federal questions presented in Major
Wigginton’s complaint, the suit was removed by General
Centracchio to the United States District Court for Rhode
Island. After removal, General Centracchio moved to dismiss
on the ground that Major Wigginton’s suit – brought against a
superior officer and arising out of matters incident to
military service – was non-justiciable. The motion was
referred to a Magistrate Judge, who recommended dismissal.
But the District Court – disagreeing with the Magistrate Judge
on the issue of justiciability – denied the motion to dismiss.
Having concluded that Major Wigginton’s suit was judicially
cognizable, the District Court held a hearing and then
authorized discovery on the question whether, on the date
Major Wigginton was discharged from RIANG, he was an officer
of the RIANG “staff corps and departments” within the meaning
of R.I. Gen. Laws § 30-3-13 and, hence, within the protective
ambit of that statute insofar as it directs that such officers
“shall hold their positions until they have reached the age of
sixty (60) years.” On the basis of the materials adduced by
the parties, the District Court found itself unable to
determine the meaning of “staff corps and departments.” The
District Court went on to rule that -- given that Major
Wigginton as plaintiff had the burden of proof and had not
succeeded in establishing that he had been an officer of
whatever grouping was comprehended by the statutory phrase
“staff corps and departments” -- summary judgment should be
entered on the first count in favor of the defendants. On the
second count, which alleged a denial of due process in the
failure to inform Major Wigginton of the reasons for his non-
retention, the District Court also granted summary judgment in
favor of the defendants.
From the District Court’s grant of summary judgment,
Major Wigginton appealed.
In the opinion filed concurrently with this
Certification Order, the Court of Appeals has ruled as
follows: First: The District Court had been correct in
determining that Major Wigginton’s suit was justiciable.
Second: The District Court erred in granting summary judgment
in favor of defendants. The Court of Appeals determined that,
in order to present viable federal claims of denial of due
process of law under both the first count and the second count
of his complaint, Major Wigginton was required to establish,
as a predicate, an underlying property interest created by
state law of which he had been deprived. In the context of
this litigation, that state-created property interest, if it
existed, had to be rooted in Major Wigginton’s claim, under
R.I. Gen. Laws § 30-3-13, that he was, at the time of his
discharge from RIANG, an officer of the “staff corps and
departments” within the meaning of the statute. Until the
phrase “staff corps and departments” was judicially construed,
it could not be determined whether Major Wigginton did or did
not come within the protection of the statute. The District
Court recognized the ambiguity of the statute but did not
resolve that ambiguity. Since the District Court did not
assign any fixed meaning to the crucial statutory phrase,
ruling one way or another on summary judgment was premature.
(3)
The Court of Appeals has examined R.I. Gen. Laws § 30-3-
13, together with other provisions of the statutory code
governing RIANG that contain the phrase “staff corps and
departments.” These statutory texts do not appear to convey a
clear meaning. No pertinent legislative history has come to
the attention of the Court of Appeals. And there are no
reported judicial decisions – either in the courts of Rhode
Island or elsewhere – construing R.I. Gen. Laws § 30-3-13
or any cognate statutory provision. Under these
circumstances, in lieu of uninformed conjecture by a federal
court, the Court of Appeals is of the view that the proper
course is to seek an authoritative construction of “staff
corps and departments” as used in R.I. Gen. Laws § 30-3-13
from the tribunal most qualified to render it – the Supreme
Court of Rhode Island. Hence, this Certification Order.
If the Supreme Court of Rhode Island determines that
Major Wigginton was not, when discharged from RIANG, an
officer of the “staff corps and departments” within the
meaning R.I. Gen. Laws § 30-3-13, that ruling would be
dispositive of the litigation, adversely to Major Wigginton.
If, on the other hand, the Supreme Court of Rhode Island
determines that Major Wigginton, at the time of his discharge,
was an officer of the “staff corps and departments” within the
meaning of the statute, the Court of Appeals would wish advice
on the further question whether R.I. Gen. Laws § 30-3-13 is to
be taken to mean what its plain text connotes – namely, that
Major Wigginton, as an officer who has not been retired by
resignation or disability, or for cause, is entitled to
continue in his RIANG status until he is sixty years old – or
whether Rhode Island’s statutory and/or decisional law
governing RIANG attaches any other contingency to Major
Wigginton’s continued status until age sixty as a RIANG
officer. If the Supreme Court of Rhode Island determines
that, by virtue of R.I. Gen. Laws § 30-3-13, Major Wigginton
was uncontingently entitled to continued status until age
sixty as a RIANG officer, that determination of Rhode Island
law would appear to satisfy the requirement of federal law
that a person asserting a right not to be discharged from a
public position without being afforded procedural due process
must establish “an enforceable expectation of continued public
employment.” Bishop v. Wood, 426 U.S. 321, 345 (1976).
Assuming that the answers of the Rhode Island Supreme Court to
the certified questions persuade the Court of Appeals that
Major Wigginton did, at the time he was discharged, enjoy an
“enforceable expectation of continued public employment,” the
further questions to be addressed by the federal courts in
this litigation would be (1) whether the procedures
culminating in General Centracchio’s decision of non-retention
with respect to Major Wigginton satisfied due process, and/or
(2) whether the failure to inform Major Wigginton of the
reasons for his non-retention was compatible with due process.
In conformity with the foregoing discussion, the Court of
Appeals requests that the Supreme Court of Rhode Island advise
the Court of Appeals of the answers to the following questions
of Rhode Island law:
1. At the time Major Wigginton was discharged
from RIANG, was he an officer of the “staff
corps and departments” within the meaning of R.
I. Gen. Laws § 30-3-13?
2. If the answer to Question 1 is “Yes”,
does that signify that, pursuant to R.I.
Gen. Laws § 30-3-13, Major Wigginton was
(in the absence of resignation, disability,
or dismissal for cause) therefore entitled
to continue as a RIANG officer until age
sixty, or would Rhode Island’s statutory
and/or decisional law attach any other
contingency to Major Wigginton’s continued
status as a RIANG officer?
By Order:
______________________________
Phoebe Morse, Clerk
United States Court of
Appeals
Enter:
______________________________
Juan R. Torruella, Chief Judge
United States Court of Appeals for the First Circuit