The National Guard Technicians Act of 1968 provides that a
National Guard technician, who is a full-time civilian employee of
the Guard, must be a member of the Guard. 32 U.S.C. § 709(b).
Employment as a technician may be terminated upon separation from
the Guard, § 709(e)(1); for failure to meet military security
requirements, § 709(e)(2); or "for cause," § 709(e)(3).
Held: Where respondent's employment as a technician was
terminated under § 709(e)(1) when he was separated from the Guard
upon expiration of his enlistment, § 709(e)(3)'s requirement of
"cause" has no application, and hence § 709(e)(3) cannot provide
the foundation for a claim that the termination of respondent's
employment and the allegedly arbitrary refusal to reenlist him
violated due process. Pp.
426 U. S.
315-316.
514 F.2d 130, reversed.
MARSHALL, J., delivered the opinion for a unanimous Court.
MR. JUSTICE MARSHALL delivered the opinion of the Court.
Respondent brought this action in the United States District
Court for the Eastern District of Tennessee, challenging the
termination of his employment as a technician
Page 426 U. S. 313
with the Tennessee Air National Guard as violative of the Due
Process Clause of the Fourteenth Amendment. Petitioners are the
defendants below -- the State of Tennessee and its Governor, the
Tennessee Air National Guard, and various officials of the
Tennessee Air National Guard.
The National Guard Technicians Act of 1968 provides generally
that a National Guard technician, who is a full-time civilian
employee of the National Guard, must be a member of the National
Guard, [
Footnote 1] and that a
technician who is separated from the Guard "shall be promptly
separated from his technician employment." 32 U.S.C. §§ 709(b),
(e)(1). The same section of the Act provides that "a technician
may, at any time, be separated from his technician employment for
cause." § 709(e)(3). O n December 8, 1972, respondent was
discharged from the Tennessee Air National Guard for the stated
reason that his term of enlistment had expired. Five days later,
respondent was notified by his commander that his employment as a
technician would be terminated in 30 days because he was no longer
a member of the Guard.
Respondent concedes the validity of the statutory requirement
that a technician maintain his status as a member of the National
Guard. Accordingly, the focus of his claims is petitioners' refusal
to permit his reenlistment. In his complaint, respondent alleged
that, prior to December
Page 426 U. S. 314
8, he had attempted, without success, to reenlist in the Guard.
He further alleged that his request for a hearing before the board
charged with making a recommendation on his reenlistment was
denied, that he was never supplied a copy of any charges against
him, and that the only reason he ever received for the refusal of
his requested reenlistment was a general one that it was not in the
best interest of the Guard to allow him to reenlist. In fact,
respondent alleged, the reason he was denied reenlistment was to
effect his discharge as a technician without the necessity of
affording him the administrative recourse he would have had if he
had been terminated as a technician directly and "for cause" under
§ 709(e)(3). Liberally construed, the complaint then asserted three
constitutional claims: (1) that the mechanism by which respondent
was refused reenlistment denied him procedural due process; (2)
that the "alleged discretion" vested in his commander to decide
whether his reenlistment was in the best interest of the Guard does
not comport with due process because of the lack of "any objective
or ascertainable standards or criteria" to guide the exercise of
that discretion; and (3) that the denial of reenlistment was
arbitrary and capricious, and therefore violative of due process.
[
Footnote 2]
The District Court dismissed the complaint on the ground that
the denial of reenlistment was a military action not subject to
review by a civilian court. The Court of Appeals for the Sixth
Circuit reversed. It apparently agreed with the District Court that
a decision to refuse reenlistment in the Guard would ordinarily be
nonreviewable in a civil court. But the Court of Appeals held that
respondent should be given the opportunity
Page 426 U. S. 315
to prove that his denial of reenlistment was based not on any
military considerations, but on a desire to terminate his
technician employment in such a way as to circumvent § 709(e)(3)'s
requirement of "cause," which would have been applicable if his
technician employment had been terminated directly. "In order for
[§ 709(e)(3)] to have meaning," the court concluded,
"the unreviewable discretion of Guard officials to permit or
refuse reenlistments must not extend to decisions which are made
for the purpose of affecting a guardsman's technician
employment."
514 F.2d 130, 133 (1975). In other words, the court held that,
if a denial of reenlistment reflects no more than a desire to
terminate employment as a technician, cause must be shown under §
709(e)(3). And, from this, the court concluded that there was a
genuine issue as to whether respondent had a property interest in
continued employment sufficient to support his due process
contentions. We granted certiorari. 423 U.S. 821 (1975).
We do not agree with the Court of Appeals that § 709(e)(3) has
any application to this case. Subsection (3) of § 709(e) provides
only one of several bases for the termination of a technician's
employment. As already indicated, subsection (1) requires that a
technician
"who is separated from the National Guard or ceases to hold the
military grade specified for his position . . . shall be promptly
separated from his technician employment."
Subsection (2) provides that a technician
"who fails to meet . . . military security standards . . . may
be separated from his employment as a technician and concurrently
discharged from the National Guard."
And subsection (3), to repeat, provides additionally that "a
technician may, at any time, be separated from his technician
employment for cause." There is nothing in the language or
structure of § 709(e), or in its legislative history, to suggest
that subsection (3)'s requirement of
Page 426 U. S. 316
cause was intended to qualify subsection (1)'s mandate that
termination of employment accompany separation from the Guard. Nor
is there anything to suggest that subsection (3) was intended to
have any bearing on whether one is separated from the Guard.
Indeed, the relevant House and Senate committee reports summarize
the three subsections as providing "for termination of civilian
employment upon loss of Guard membership, failure to meet military
security standards,
or separation for cause." H.R.Rep. No.
1823, 90th Cong., 2d Sess., 3 (1968); S.Rep. No. 1446, 90th Cong.,
2d Sess., 3 (1968) (emphasis added).
See also H.R.Rep. No.
1823, p. 8; S.Rep. No. 1446, p. 7. The clear and sole import of
subsection (3), then, is that, if a technician remains a member of
the National Guard and is otherwise eligible for continued
employment under subsections (1) and (2), he may nevertheless be
discharged for cause. There can be no significance, therefore, to
the claim that the denial of reenlistment to respondent was
designed to circumvent the requirements of § 709(e)(3). Nor can §
709(e)(3) provide the foundation for any due process claim in this
case, since the property interest it creates in continued
employment is confined, in all events, to the guardsman's term of
enlistment. [
Footnote 3]
The judgment of the Court of Appeals is
Reversed.
[
Footnote 1]
The Secretary of the Army or the Air Force, in this case the Air
Force, may, by regulation, exempt technicians from the requirement
of membership in the Guard. 32 U.S.C. § 709(b). The Senate and
House committee reports contemplated the exemption of about 5% of
the technicians -- principally secretaries, clerk-typists, and
security guards. H.R. Rep. No. 1823, 90th Cong., 2d Sess., 6
(1968); S.Rep. No. 1446, 90th Cong., 2d Sess., 5 (1968). Respondent
has not been exempted from the requirement of Guard membership.
[
Footnote 2]
The complaint also included a general assertion of
discrimination in violation of the Equal Protection Clause. Never
adequately alleged, and not considered by the District Court or the
Court of Appeals, this assertion is not before us.
[
Footnote 3]
Respondent asserts in his brief that he had a property interest
in the form of a legitimate expectation of reenlistment and
continued employment.
See Perry v. Sindermann,
408 U. S. 593,
408 U. S.
599-603 (1972). This assertion was not pleaded in
respondent's complaint, was not considered by the District Court or
the Court of Appeals, and, accordingly, is not before us.