Wigginton v. Centracchio

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.
____________________

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF RHODE ISLAND

[Hon. Mary M. Lisi, U.S. District Judge]

____________________

Before

Torruella, Circuit Judge,

Cyr, Senior Circuit Judge,

and Pollak,* Senior District Judge.

_____________________

Robert B. Mann and Mann & Mitchell on brief, for appellant.
Leonard J. DePasquale, Staff Judge Advocate, Rhode Island Army
National Guard, and Richard B. Woolley, Assistant Attorney General,
Department of Attorney General, on brief, for appellees.
____________________

September 4, 2002
____________________
____________
* Of the Eastern District of Pennsylvania, sitting by designation.
 Pollak, District Judge. This litigation has traveled a

tortuous path -- begun in a Rhode Island trial court, removed to

the United States District Court for the District of Rhode Island,

appealed to this court, forwarded by this court to the Supreme

Court of Rhode Island with a request for instruction on questions

of Rhode Island law, and, now, returned to this court for final

disposition of the pending appeal in the light of the authoritative

explication of Rhode Island law provided by the state Supreme

Court. In this Court's prior opinion, Wigginton v. Centracchio,

205 F.3d 504 (1st Cir. 2000), as predicate for our announcement of
certain interim rulings and for our invocation of the aid of the

Supreme Court of Rhode Island, we narrated in considerable detail
the events giving rise to this litigation and the proceedings in
the District Court. In the first section of today's opinion we

will present a compressed version of that narrative. In the second
section of this opinion we will summarize the interim rulings
announced in our prior opinion, culminating in an explanation of

why we found it appropriate to solicit the assistance of Rhode
Island's highest court with respect to questions of Rhode Island
law that seemed likely to be controlling. In the third section of

this opinion we will set forth the substance of that court's
responsive ruling and apply those teachings to the pending appeal.

I. The events leading to litigation, and the proceedings in the

District Court

A. The events leading to litigation:

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 Appellant Eugene E. Wigginton served in the Marines from 1967

to 1970 and was then honorably discharged. In 1979 Wigginton was

commissioned as a second lieutenant in the United States Army
Reserve and, concomitantly, in the Rhode Island Army National Guard

("RIANG"). He received regular promotions, and by 1996 -- the year

in which the event triggering this litigation took place --
Wigginton, by then forty-six years old, had almost twenty years of

aggregate service in the Marines and RIANG and had attained the

rank of major. In January of 1996 Wigginton was advised that in

May of that year his status would be considered by a Selective

Retention Board, pursuant to National Guard Regulation (?NGR?) 635-

102. The stated purpose of NGR 635-102 was 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." Of the ten RIANG officers

whose status was considered at the May 1996 session of the
Selective Retention Board, four -- of whom Wigginton was one --

were recommended for non-retention. Pursuant to the Board's

recommendation, Brigadier General Reginald E. Centracchio, Adjutant

General of Rhode Island, then notified Wigginton that he was to be

separated from RIANG as of July 13, 1996; separation followed on

that date.

In September of 1996 Wigginton filed a two-count § 1983 (42

U.S.C. § 1983) suit against Centracchio and the State of Rhode

Island in the Superior Court for Providence County. The first of

the two § 1983 counts charged that termination of Wigginton's RIANG

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commission constituted deprivation without due process of law of a

constitutionally protected property right to continue as a

commissioned officer until age sixty -- a substantive right
assertedly embodied in § 30-3-13 of Rhode Island General Laws.

That statutory provision, part of the Rhode Island military code

enacted by the Rhode Island Legislature in 1956, is as follows:
All commissioned officers of the staff
corps and departments, hereafter appointed,
shall have had previous military experience,
except chaplains, officers of the judge
advocate general's corps, and medical corps
officers. They shall hold their positions
until they shall 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. Vacancies among these officers shall
be filled by appointment from the commissioned
officer of the national guard or from such
other civilians as may be specifically
qualified for duty therein.
R.I. Gen. Laws § 30-3-13.

The second § 1983 count, sounding in procedural due process,

contained two elements. One element was a claim that the criteria

prescribed by NGR 635-102 as governing the retention/non-retention
decision had not been followed in Wigginton's case. The other

element was a claim that the absence of any explanation of the

grounds for the non-retention decision constituted a fatal due

process flaw.

B. The proceedings in the District Court

Centracchio removed the case to the District Court and then

filed a motion to dismiss. The Magistrate Judge to whom the case

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had been referred recommended to the District Judge that the motion

to dismiss be granted on the ground that claims arising in the

military service were non-justiciable. The District Court,
disagreeing with the Magistrate Judge, denied the motion to

dismiss. The District Judge ruled that damage actions arising from

military service were not justiciable, but that an equitable action
-- such as Wigginton's, seeking reinstatement in commissioned

status -- could be entertained by an Article III court. The

District Court then authorized the parties to engage in discovery

addressed to the meaning of R.I. Gen. Laws § 30-3-13, the Rhode

Island statute relied on by Wigginton in the first count of his

complaint, with a view to determining whether Wigginton had been a

"commissioned officer [] of the staff corps and departments" within
the meaning of the statute. At the close of discovery, Centracchio

and Wigginton both filed motions for summary judgment.

The District Court granted Centracchio's motion for summary
judgment. With respect to Wigginton's first count, the District

Court found that neither Wigginton nor Centracchio had presented

evidence that gave the statutory phrase "staff corps and

departments" any cognizable meaning. The District Court then ruled

that, since Wigginton as plaintiff had the burden of establishing

the legal groundwork for his substantive due process claim, his

inability to demonstrate that he was an "officer [] of the staff

corps and departments" meant that the claim presented in the first

count of the complaint "must fail." The District Court then went

on to address Wigginton's procedural due process claims -- the

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claims presented in the second count -- and found them without

merit.

Wigginton appealed to this court from the order of the
District Court granting summary judgment and dismissing his

complaint.

II. This court's prior opinion

In addressing Wigginton's appeal we first considered

Centracchio's contention that Wigginton's claims were non-

justiciable. We held that the District Court had correctly

determined that, since Wigginton was not seeking damages but rather
the equitable relief of reinstatement as a commissioned RIANG

officer, his claims were justiciable.
We then turned to the District Court's grant of summary
judgment in favor of Centracchio. First we considered the

dismissal of Wigginton's second count alleging a lack of procedural
due process. Wigginton had not pursued on appeal his contention
that the Selective Retention Board had not adhered to the

decisional criteria prescribed by NGR 635-102; accordingly, we
confined our attention to Wigginton's claim that he had a due
process right to an explanation of the reasons for the denial of

retention. We agreed with the District Court's rejection of that
claim.
Next we considered the District Court's grant of summary

judgment dismissing the first count of Wigginton's complaint. As
noted above, the District Court reasoned that, since the testimony

and arguments presented by the parties shed no useful light on the

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meaning of the crucial and opaque statutory phrase "staff corps and

departments," and since Wigginton as plaintiff had the burden of

establishing all of the elements of his claim, Wigginton's failure
to come forward with a persuasive showing that he came within the

protective embrace of the statutory phrase meant that his claim

"must fail."
But "[h]ere," we said, "we part company with the District

Court." Wigginton, 205 F.3d at 517. And we undertook to explain

why:

On cross-motions for summary judgment, a
plaintiff loses if he cannot produce evidence
tending to establish a fact that, under the
governing law, the plaintiff is required to
prove in order to make out his cause of
action. But that was not the situation at the
point that the District Court granted summary
judgment against appellant and in favor of
appellees. When the District Court granted
summary judgment, no determination had been
arrived at as to what the governing law was.
That is to say, neither the meaning of the
phrase "staff corps and departments" as used
in R.I. Gen. Laws § 30-13-3, nor the extent of
the rights created by that statute if
applicable, had been judicially resolved. And
under those circumstances, there was no way to
tell whether the evidence adduced by Major
Wigginton would, if credited by a fact-finder,
suffice as a matter of Rhode Island law to
present the federal constitutional question
whether state law rights had been abridged
without due process. Accordingly, it was
error to grant summary judgment on the first
count in favor of General Centracchio and the
State of Rhode Island. And it would , a
fortiori, have been error to grant summary
judgment in favor of Major Wigginton.

Id. at 517 (footnote omitted).

Having pointed out that the District Court had not arrived at

a dispositive construction of R.I. Gen. Laws § 30-3-13, and that

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without such a dispositive construction neither the Centracchio nor

the Wigginton motion for summary judgment could be ruled on, we

then acknowledged that we, too, could not arrive at a reliable
construction of the statute. We explained the statute's ambiguity,

and the lack of conventional resources to resolve that ambiguity,

and we then went on to conclude that the sensible course was to ask
the Supreme Court of Rhode Island to provide an authoritative

construction of this esoteric statute:

The general thrust of the first two
sentences of the statute is apparent. Those
persons who are "commissioned officers of the
staff corps and departments . . . 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."
Major Wigginton -- a commissioned officer of
RIANG who had not reached age sixty, and who
had not been retired by reason of resignation
or disability, or for cause -- would appear
(absent any other contingencies attached to
Major Wigginton's continued employment by
Rhode Island law) to be within the protective
embrace of the statute if he was an officer of
the "staff corps and departments." But what
that latter phrase means remains unclear. The
first sentence of the statute -- "All
commissioned officers of the staff corps and
departments hereafter appointed, shall have
had previous military experience, except
chaplains, officers of the judge advocate
general's corps, and medical corps officers" -
- makes it plain that the phrase "staff corps
and departments" connotes a cohort inclusive
of, but broader than, "chaplains, officers of
the judge advocate general's corps, and
medical corps officers." How much broader?
Broad enough to include Major Wigginton, an
officer originally commissioned in the
Military Police, later assigned as a Public
Affairs Officer, and ultimately acting as an
Education Officer? We derive no useful
textual guidance from the two other provisions

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 of the statutory code governing RIANG that
employ the phrase "staff corps and
departments." Appellant and appellees, in
their submissions to this court, have been
unable to adduce any useful legislative
history of R.I. Gen. Laws § 30-3-13 and we
have found none. Further, the parties have
not cited any pertinent decisions construing
R.I. Gen. Laws § 30-3-13; and our research
confirms that no court (whether a Rhode Island
court, a federal court, or a court of another
state) has, in a reported opinion, construed
"staff corps and departments" as utilized in
R.I. Gen. Laws § 30-3-13 (or, indeed, as
utilized in either of the two other provisions
of the statutory code governing RIANG that
employ the phrase).

Thus, what we have before us is a Rhode
Island statute which is a tabula rasa.
Moreover, the state military code of which the
statute is a part is a very special kind of
state legislative enactment, for the code
governs the Rhode Island aspects of a joint
state-federal enterprise of great importance -
- the Rhode Island Army National Guard. Under
these circumstances, in order to achieve a
responsible resolution of the issues presented
by the pending appeal, it plainly would be
better to have a current and authoritative
construction of R.I. Gen. Laws § 30-3-13 by
the Rhode Island judiciary than to have a
conjectured prophecy by this court of what
Rhode Island's courts might be expected to
rule at some future time. Happily, the
Supreme Court of Rhode Island has in place a
procedure pursuant to which it "may answer
questions of law certified to it by . . . a
Court of Appeals of the United States . . .
when requested by the certifying court if
there are involved in any proceeding before it
questions of law which may be determinative of
the cause then pending in the certifying court
and as to which it appears to the certifying
court there is no controlling precedent in the
decisions of this court." Rhode Island
Supreme Court Rules, Art. I, Rule 6, § 1. The
quoted rule precisely describes the
circumstance in which this court finds itself.

205 F.3d at 518-19 (footnote omitted).

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 Accordingly, invoking the Supreme Court of Rhode Island's

procedure for responding to questions certified by other courts, we

certified two questions, explaining the reasons for the
certification of these questions in an "Order for Certification of

Certain Questions to the Rhode Island Supreme Court," Wigginton

v. Centracchio, 214 F.3d 1 (1st Cir. 2000), the Order for
Certification having been crafted as a supplement to our opinion.

The two certified questions were as follows:

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?
In our Order for Certification we elaborated on the certified

questions:

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 of 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

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 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.
214 F.3d at 3.

III. The ruling of the Supreme Court of Rhode Island, and its

application to the pending appeal

The Supreme Court of Rhode Island responded to our Order for
Certification in a unanimous and characteristically thoughtful

opinion, written by Chief Justice Williams. The opinion is
reported at Wigginton v. Centracchio, 787 A.2d 1151 (R.I. 2001).

A copy of the opinion is annexed hereto as an appendix to this
opinion.
In the opening two paragraphs of the opinion, Chief Justice

Williams states:
The United States Court of Appeals For
the First Circuit has requested from this
Court its opinion with regard to two certified
questions so as to assist that court in
resolving a wrongful termination claim under
42 U.S.C. § 1983. The First Circuit sought
clarification of the meaning of G.L. 1956 §
30-3-13, a statute arguably entitling Maj.
Eugene E. Wigginton (plaintiff), to remain in
his position in the Rhode Island Army National
Guard (RIANG) until the age of sixty. This
Court reviewed the certification order and
determined that the questions, as certified,
required resolution of issues of fact, a task
not permitted to us by Article I, Rule 6 of
the Supreme Court Rules of Appellate
Procedure. Thus, we issued an order modifying
the original questions and setting forth the
single question to which we would respond.

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 "What is the meaning of the term 'staff
corps and departments' contained in
General Laws 1956 § 30-3-13?"

If the plaintiff can establish that he was a
member of the "staff corps and departments,"
he might have a constitutional or statutory
basis upon which to contest his discharge.
Absent a definition of the terms, no court is
able to properly address plaintiff's claims.

Having considered all relevant
authorities, we respond that "staff corps and
departments" is a vestigial term that cannot
fairly be construed to have any meaning in the
RIANG's modern military organization or any
application to commissioned officers since
1956.

787 A.2d at 1152-1153 (footnote omitted).

The closing portion of the opinion is as follows:

Historical Army Organization

The Court notes that the phrase "staff
corps and departments" does not appear in any
modern United States Army table of
organization, or in the United States Code.
To ascertain the origin of the term it is
necessary to look to historical Army
organization.

After the War of 1812, Secretary of War
John C. Calhoun separated the War Department
into two groups -- a departmental staff and
the Army in the field (otherwise referred to
as the "line"). See James E. Hewes, Jr.,
From Root to McNamara: Army Organization and
Administration, 1900-1963 3 (Center of
Military History 1975). The departmental
staff consisted of the heads of individual
departments (or bureaus) and each department
performed a "specialized function or service."
Id. Some of the staff departments were
referred to as "corps," including the corps of
engineers and signal corps. Some were
referred to as "departments," including the
JAG department, the adjutant general's
department, the quartermaster's department,
the subsistence department, the pay

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department, the medical department and the
ordnance department.
Thus, in the early nineteenth century,
the term "staff corps and departments"
referred to groups of officers performing a
"specialized function or service." The scope
of "staff corps and departments," however,
evolved because of the continuous
reorganization of the War Department. For
example, in 1917, the quartermaster,
subsistence and pay departments were
consolidated into a single quartermaster
corps. See Hewes, at 17, 21-22. One year
later, the portion of the quartermaster corps
that formerly was the pay department emerged
as the finance department. See id. at 48. At
the same time, a new tank corps was formed
from members of the ordnance department and
corps of engineers. See id. Next, the
chemical warfare department and the chaplains
department became independent departments.
See id. at 51.

The organization of the RIANG mirrored
the organization of the War Department. In
1929, commissioned officers of the RIANG were
divided into two groups, the "staff corps and
departments" and the "line." 1929 R.I. Nat'l
Guard Adj. Gen. Ann. Rep. 19. The "staff
corps and departments" consisted of the
adjutant general's department, the
quartermaster corps, the signal corps, the
medical corps, the medical administrative
corps, inspector general's department, the JAG
corps, the ordnance department, the dental
corps, the veterinary corps and the chaplains.
See id.

However, by World War II, the terms
"staff corps" and "departments" ceased to
exist. See Hewes, at 90. Instead, the War
Department began using the terms "technical
services" or "administrative services." Id.
at 97, 99. In 1942, there were seven
technical services and four administrative
services. However, only some of the technical
or administrative service corps were formerly
considered "staff corps and departments." In
1947, the War Department was officially
renamed the Department of the Army. See id.

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at 167. At that time, the armed forces were
reorganized into a centralized body under the
Department of Defense similar to its present
structure. See id. at 310-11.

Modern Army Organization

Today, the Army is divided into the basic
branches and the special branches. See 10
U.S.C. §§ 3063, 3064, 3067. There is no group
of officers deemed members of the "staff corps
and departments." Further, branches that were
historically members of the "staff corps and
departments" are now found in both the basic
and special branches of the Army. When the
Legislature enacted § 30-3-13 in 1956, the
Department of the Army already had been
reorganized. Consequently, the "staff corps
and departments" no longer existed. We must
assume then that the Legislature adopted the
provisions governing the RIANG without
intending to have its organization conflict
with its federal counterparts. This must be
true since § 30-3-13 expressly provides that
the Legislature intends for the RIANG to be
"organized as to branch or arm of service into
such federally recognized units,
organizations, corps, departments, or
otherwise as shall be authorized by the laws
of the United States and the regulations
issued thereunder."

Conclusion

In conclusion, we find that the term
"staff corps and departments" is a vestigial
term that cannot fairly be construed to have
any meaning in modern military organization or
application to presently commissioned
officers. This Court is constrained to make
such a conclusion because history has wrought
such substantial change to the organization
and structure of the United States Army and
the RIANG. To conclude otherwise would permit
the First Circuit to consider plaintiff's
membership within a group that no longer
exists. We decline to permit such an absurd
result. See In re Estate of Gervais, 770 A.2d
at 880 (citing Hargreaves v. Jack, 750 A.2d
430, 435 (R.I. 2000)).

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 In our Order for Certification we stated that "[i]f 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 of R.I. Gen. Laws § 30-3-13, that

ruling would be dispositive of the litigation, adversely to Major

Wigginton." The Supreme Court of Rhode Island has found "that the
term 'staff corps and departments' is a vestigial term that cannot

fairly be construed to have any meaning in modern military

organization or application to presently commissioned officers."

Since the term "staff corps and departments," in R.I. Gen. Laws §

30-3-13, has, as a matter of Rhode Island law, no "meaning in

modern military organization or application to presently

commissioned officers," appellant Wigginton's § 1983 claim, for
which that statutory term is the foundation, is foreclosed.

Accordingly, the order of the District Court granting summary

judgment will be affirmed (albeit not for the reasons given by the

District Court).

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