Tennessee v. Dunlap – Oral Argument – March 22, 1976

Media for Tennessee v. Dunlap

Audio Transcription for Opinion Announcement – June 10, 1976 in Tennessee v. Dunlap

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Warren E. Burger:

We will hear arguments next in 75-95, Tennessee against Dunlap.

Mr. Shipley, I think you may proceed.

Alex B. Shipley, Jr.:

Mr. Chief Justice, may it please the court.

This case was originally brought by the respondent, the plaintiff below, who was a member of the Tennessee National Guard.

He also served in a dual capacity, a separate and distinct capacity, as a National Guard Technician which is a Federal Civil Service capacity exempt from the normal merit competitive Civil Service because of the requirement that these civil servants must maintain their membership in the Tennessee National Guard.

Now, the plaintiff alleged that he was wrongfully denied his opportunity to re-enlist in the Tennessee National Guard, the Air National Guard, asserting that the only reason he was not allowed to reenlist was a sham to deny him his opportunity for continued employment as a technician, as a National Guard Technician under 32 USC Section 709 which creates the National Guard Technician positions.

The complaint argued that in this case, the Military Commander’s discretion in determining whether or not to accept and offer of reenlistment was so broad and vague and it lacked objective criteria and was thus unconstitutional.

Apparently, a delegation of authority argument rather than a Fourteenth Amendment vagueness argument, the denial of the opportunity then to reenlist denied the plaintiff, according to the complaint, his administrative review which he would have had, had he been dismissed for cause from his National Guard Technician status.

The complaint was dismissed by the District Court alluding to the unique relationship between the State Militia and one of its members and holding that the judiciary should avoid interference with legitimate military matters.

The Sixth Circuit from which this — to which certiorari was granted, reversed and remanded the case directing the District Court to determine a threshold question.

Here, whether or not this military decision not to reenlist this man, was made for a military reason indicating that you look to the military and it is of the decision rather than to the fact that the decision maker was a military man.

The National Guard Technician’s Act of 1968 was passed in order to create a Federal Civil Service Position for National Guard Technicians.

Prior to that time, they had been — they were called caretakers and they were considered to be state employees.

Consequently, you had a wide diversion of employment benefit, retirement benefits.

So Congress in 1968 chose to make these persons Federal Civil Service employees.

The top level supervisor of these Federal Civil Service employees with the states is the Adjutant General.

He receives that authority from the Congressional Enactment.

Because of the difficulties which had a reason previously with these caretakers not being military members of the particular units in which they served in a caretaker capacity during their week’s work as opposed to their weekend warrior capacity.

The Congress imposed the basic requirement that a man is to be a National Guardsman in order to hold this Civil Service position.

The Adjutant General, the top level supervisor, is required by the Congressional Enactment to promptly separate from employment, any technician, who fails to maintain his National Guard technician.

Now, of course, a technician might be separated for cause.

He might be fired as it were and were he separated for cause, a right of appeal would exist up to the Adjutant General, who is the Military Commander of the State National Guard.

Now, the Sixth Circuit opinion indicates that because this man is a National Guard technician, he has a particular right to continued membership in the National Guard thus, apparently grafting the cause of requirement for firing a Civil Service technician on to the prerequisite for National Guard membership to be maintained in the first instance.

So, that decision avoided the issue of the required membership in the National Guard.

Now, a military member of the National Guard can lose his National Guard status for variety for a variety of reasons.

He maybe too old to continue to serve in the National Guard, he may have a physical illness or injury which would cause him to be separated from the National Guard.

He may simply failed to reenlist.

So, the loss of Guard membership for any of those reasons results on a consequent virtually automatic loss of the technician employment.

Warren E. Burger:

What if the National Guard just concludes that he is not up to par in terms of his technical competence?

Alex B. Shipley, Jr.:

Are you alluding Your Honor, to his military capacity?

Warren E. Burger:

(Inaudible) — his technician in essence and they have two choices.

Are you telling us they can dismiss him from that job for a cause or they can just simply wait until his enlistment expires and then decline to reenlist him and he is automatically out?

Alex B. Shipley, Jr.:

Well, Your Honor, a guard member has no right to reenlist.

No more than a member of the regular service–

Warren E. Burger:

Have these two evidences to terminate him?

Alex B. Shipley, Jr.:

Your Honor, exactly.

If the National Guard chose not to reenlist him for whatever purpose, he would not be able to maintain his technician employment.

That is a decision and that is what we are here for because this is a purely military decision of whether or not to determine this man’s–whether the military wants to accept his offer to reenlist.

It is the Court of Client’s cases which we considered enlistments have all alluded to the fact that enlistment is a contract and-

William H. Rehnquist:

Mr. Shipley, does it really make any difference whether it is military or not?

I mean, it is the supposed thing that was simply on a civilian context in a classical employment at will type of thing.

Does it not the Board of Regents versus Roth indicate that there is no requirement for a hearing?

Alex B. Shipley, Jr.:

Well, Your Honor, exactly.

Now, that is true in this case, we are not dealing necessarily with employment at will or continued employment at will but we are dealing with a determination that is made whether to employ in the first instance, a reenlistment, so the same would apply whether or not this was a military decision, that is correct.

Thurgood Marshall:

As you have said, this is Civil Service.

Alex B. Shipley, Jr.:

Your Honor, it is civil service.

The technician status is Civil Service.

It is Civil Service —

Thurgood Marshall:

You then cannot fire — then he will?

Alex B. Shipley, Jr.:

They cannot — you cannot fire him for cause.

Thurgood Marshall:

And you can not fire him at will?

Alex B. Shipley, Jr.:

From his technician status, that is right, Your Honor, we agree.

Thurgood Marshall:

So that, if they want to fire him, and they are not willing to go through the normal firing processes, they just refuse the letter and reenlist.

Alex B. Shipley, Jr.:

That is right, Your Honor, they can refuse the letter.

Thurgood Marshall:

That is (Voice overlap)

Alex B. Shipley, Jr.:

That would be right.

Thurgood Marshall:

That is all right?

Alex B. Shipley, Jr.:

Yes, Your Honor.

Thurgood Marshall:

Now, all the Court of Appeals said let us go back and find out if there is some hanky-panky on this.

Alex B. Shipley, Jr.:

Well, Your Honor, I do not think that there is any allegation of hanky-panky because I think that the fact of the matter is, that a Guard Commander in making his determination on whether or not to let the guards to reenlist, might well consider his —

Thurgood Marshall:

That is what the court says go find that.

Alex B. Shipley, Jr.:

Exactly, Your Honor.

Thurgood Marshall:

The Court says, go find that, whether the reason to fire him — not to let him reenlist was not to deprive him of his job.

Alex B. Shipley, Jr.:

That is what the court said but they went further Your Honor in stating that–

Thurgood Marshall:

What is wrong with finding that out?

Alex B. Shipley, Jr.:

Well, Your Honor, this is the difficulty it creates there is that it would create a bifurcated guard capacity.

If I were a weekend warrior who did not serve as a National Guard Technician, then I would not have this additional right to maintain continued membership in the National Guard, but if on the other hand, I was a National Guard technician–

Thurgood Marshall:

About this case, let me just a man that has the status of the standing job, the Civil Service job I saw him in one of his limited jobs.

Alex B. Shipley, Jr.:

Right.

Thurgood Marshall:

It does not apply to the other one?

Alex B. Shipley, Jr.:

But the technician status, Your Honor, is subservient to the military status.

The whole purpose of the technician program is to maintain, equip, and train the weakened warrior personnel.

Thurgood Marshall:

And to give him Civil Service status, this is what you are saying?

Alex B. Shipley, Jr.:

It does.

He does have certain Civil Service status.

He is not a member of the competitive Civil Service but as a result, he must maintain his Guard membership but there is nothing in the legislative history of this Act which indicates that Congress intended to create a greater right to guard membership for a National Guard technician as opposed to any other National Guardsman.

William J. Brennan, Jr.:

What would the level of the decision not to permit reenlistment made?

Alex B. Shipley, Jr.:

Your Honor, the Air Force regulation which is directive but not binding on the State of Tennessee National Guard and which I understand is generally followed is that the decision is made by the unit commander.

The initial decision on whether or not to accept the —

William J. Brennan, Jr.:

This unit would be what?

Alex B. Shipley, Jr.:

I have to refer Your Honor.

William J. Brennan, Jr.:

What kind of a unit is it?

Alex B. Shipley, Jr.:

We are dealing with the basic.

I am an army man.

I am not familiar with the Air Force terminology and I have to apologize, I do not know whether its a wing or group but it is the basic level unit commander would be a company in the army.

William J. Brennan, Jr.:

Like a company?

Alex B. Shipley, Jr.:

Yes, Your Honor.

Potter Stewart:

Most of them are major.

Alex B. Shipley, Jr.:

Yes, Your Honor.

Potter Stewart:

But he did in fact in this case – he did in fact in this case consult some sort of advisory group of other officers, did he not?

Alex B. Shipley, Jr.:

Right Your Honor.

And this is in keeping with the normal.

If a man says I want to reenlist and the military says we decide not to accept the reenlistment, the unit commander or his superior can convene a board of officers just to advice him, do we think this man ought to reenlist?

William J. Brennan, Jr.:

I mean there is nothing in the way of review of the initial decision whatever level it is made, whether it is captain or major.

Alex B. Shipley, Jr.:

Your Honor I would —

William J. Brennan, Jr.:

The review of that not of right, the Guardsman has no–

Alex B. Shipley, Jr.:

Exactly, Your Honor.

Now, the Guardsmen did not have the right of review.

Now assuming it is a military decision, I am sure if the superior commander decided to countermand the decision of his inferior commander, then that would obtain.

William J. Brennan, Jr.:

(Inaudible) — the Tennessee Guard unit would be the Adjutant General that he would be on the top —

Alex B. Shipley, Jr.:

He is at the top, Your Honor.

William J. Brennan, Jr.:

Could it get to him?

Alex B. Shipley, Jr.:

It could get to him and I believe–

William J. Brennan, Jr.:

Not of right as far as the guardsman is (Voice overlap)

Alex B. Shipley, Jr.:

It is not a right vested in the Guardsman himself.

It is a method by which the Military Commanders up the chain of command can make this determination.

Potter Stewart:

(Inaudible) Mr. Shipley, as I understand it that a reenlistment confers no more rights upon the applicant for reenlistment than with an applicant for original enlistment.

Alex B. Shipley, Jr.:

Exactly, Your Honor.

Exactly.

Potter Stewart:

You are at zero.

Alex B. Shipley, Jr.:

You are at zero.

Except you do have a military record to the term and the commander has seen your performance.

Potter Stewart:

(Inaudible) — go on but so far as the rights of the applicant go, they are–

Alex B. Shipley, Jr.:

Starting from scratch.

Potter Stewart:

They are zero and that is your submission as I understand it?

Alex B. Shipley, Jr.:

Yes, Your Honor.

Warren E. Burger:

And that it is for that reason, from your point of view, that there is nothing that for any court to review because they can do this for any reason they desire.

Alex B. Shipley, Jr.:

Right, Your Honor, and I think that is the danger in the Sixth Circuit precedent in this case that a well pleaded but factually unsubstantial complaint.

Thurgood Marshall:

Final question, the man, the Adjutant General is in charge of him as a specialist, right?

Alex B. Shipley, Jr.:

As a technician.

Thurgood Marshall:

Technician.

Alex B. Shipley, Jr.:

Yes, Your Honor.

Thurgood Marshall:

He is responsible for him as a Guardsman.

Alex B. Shipley, Jr.:

He is subservient to the Governor’s Commander in Chief but the State Guard is a Guardsman.

Byron R. White:

And would you say that the decision to refuse enlistment or reenlistment is wholly discretionary, not subject to review on any ground?

Alex B. Shipley, Jr.:

Yes, Your Honor.

Byron R. White:

What if—

Alex B. Shipley, Jr.:

After the constitutionally protected ground such as race or First Amendment protected by–

Byron R. White:

Certainly a big absence, is it not?

Alex B. Shipley, Jr.:

Yes, Your Honor.

Byron R. White:

And I suppose that if there was a statutory, if the statute regulating this technician’s job expressly said that you cannot refuse to reenlist because of your job performance.

Alex B. Shipley, Jr.:

Then that would be a statutory creative right which there is — not here.

Byron R. White:

Well, the argument here is that the argument on the other side is that is what the statute means.

And but you say that they could refuse reenlistment, but even if whoever refused reenlistment said expressly, the reason I am refusing reenlistment is because we are unsatisfied with your performance as a technician.

Alex B. Shipley, Jr.:

Your Honor, I think that that would be an appropriate military determination.

Now —

Byron R. White:

Do we not have to judge the case on this basis?

Alex B. Shipley, Jr.:

Certainly, Your Honor.

But there is no allegation here other than — the only allegation here is that they chose not to reenlist him as a sham to invoke —

Byron R. White:

The Court of Appeals apparently thought as I understand it, thought that the real reason they were refusing to reenlist was that they were unsatisfied with his job performance.

Alex B. Shipley, Jr.:

Well, Your Honor, the allegation was that–

Byron R. White:

And, I thought your position was that even if that is the case, there is no judicial review of that decision.

Alex B. Shipley, Jr.:

And we think so, Your Honor.

But under the complaint in this case, the complaint asserts that the only reason they chose not to reenlist him, the cause — the underlying cause might be there but the only reason was to deny him any administrative review available to him and his technician status.

So, what we have here is there are no charges against this man.

There are no — nobody coming in and making statements against him that he is being denied the opportunity to refute.

It merely has been a military determination that they decide that it was not in the best interest of the Tennessee Air National Guard to opt for his reenlistment.

William H. Rehnquist:

Which does not require any charges?

Alex B. Shipley, Jr.:

Right, right, Your Honor.

It is a military decision which —

John Paul Stevens:

As I understand you, you would agree that if he were terminated or refused reenlistment for a constitutionally impermissible reason that he would be entitled to some hearing.

Alex B. Shipley, Jr.:

Exactly, Your Honor.

We are not–

John Paul Stevens:

Supposing, in other words if the purpose was to deny him a constitutional right. He would be entitled to some kind of hearing.

Alex B. Shipley, Jr.:

Yes.

John Paul Stevens:

Supposing he has alleged, and I think one might read his complaint this way, that the statute gave him a right not to be discharged except for a cause which gave him a property interest in his job and that entitled him constitutionally to a hearing in connection with the discharge.

And that the purpose of the refusal to reenlist was to deny him his constitutional right to a hearing in connection with his discharge.

Alex B. Shipley, Jr.:

That might be so, Your Honor, except for the statute itself and the legislative history itself indicates that the technician status is subservient to the military status.

The whole purpose of the technician program is to support the military not vice versa and the requirement that he maintain his guard membership is in 709(b) and (e)(1), it states that Adjutant General shall separate him and it is not until (e)(3) where they say if he wants to fire him for cause, he may do so and later on in the statute, it says any appeal from that decision goes only as far as the Adjutant General.

John Paul Stevens:

Would you agree that if he were terminated for any reason other than failure to continue a status in the reserve that he would be entitled constitutionally to a hearing?

Alex B. Shipley, Jr.:

Well, Your Honor, there are several other reasons but if he were separated for calls from his technician job, certainly he is entitled —

John Paul Stevens:

He still has the right to a hearing?

That is my question.

Warren E. Burger:

(Inaudible) and the statute says he has that right.

Alex B. Shipley, Jr.:

Well, I do not think we get to the question of whether he has a constitutional right and I think maybe that we are looking at the statute to see whether it does create a right to continue guard membership.

Warren E. Burger:

The statute creates a right to a hearing for an administrative dismissal as a technician–

Alex B. Shipley, Jr.:

For a cause.

Warren E. Burger:

For a cause.

For all — I suppose it is your position and for all we know, military minds said this man is not a suitable man for the military.

We do not want him in the guard.

Maybe he is a fine technician but he is not a good guardsman and therefore–

Alex B. Shipley, Jr.:

Exactly, Your Honor.

Warren E. Burger:

And that there is no review of that kind from your–

Alex B. Shipley, Jr.:

Yes, Your Honor.

That is where the complex subtle and professional decisions concerning the composition–

Thurgood Marshall:

(Inaudible) civilian judgment.

The only trouble with this case is the same man as both to civilian and the military.

Alex B. Shipley, Jr.:

In this particular instance, he may well be both but he actually wear two hats, Your Honor, because as a National Guard technician, his supervisor is a Civil Service technician.

Thurgood Marshall:

He says while I got the hat on as supervisor of this man.

I cannot fire him without a hearing.

Thurgood Marshall:

So, I put my other hat on and fire him without a hearing.

Alex B. Shipley, Jr.:

No, Your Honor, because you did not fire him in this case.

He chose not to reenlist him and there is no right to reenlistment.

Now, Your Honor, if during his term of enlistment, during his six-year period for apparently which this man had enlisted a six-year period in the guard that he had chosen to boot him out.

Then, there are certain administrative rights available to guard members before a man can be separated from the guard for a cause.

But this is not the case here.

This is a case where his term was up, his contracts or term was up and he maintained — he has no right to continued employment or to renewed employment.

Thurgood Marshall:

He has been in the guard since 17-and-half years

Alex B. Shipley, Jr.:

No, Your Honor.

He apparently — now, this was not alleged in the complaint below.

He had been in the guard as I understand it and all I know is what is in the complaint frankly for six years.

He was apparently enlisted in the guard and hired as a Civil Service technician at the same time.

He apparently had prior military experience.

(Inaudible).

Alex B. Shipley, Jr.:

Apparently so.

Now, this came up on the first time.

Your Honor, this came up that the 17-and-a-half years assertion came up for the first time at the Sixth Circuit level.

There is no allegation in the complaint that he had anymore time than his six years as a technician and as a guardsman.

John Paul Stevens:

Mr. Shipley, I am not sure I understood your answer to my question.

If he were terminated for a reason other than failure to obtain reenlistment, would you agree that he does or does not have a constitutional right to a hearing?

I understand he has the right — an administrative right to hearing but does he also have a constitutional right?

Alex B. Shipley, Jr.:

As a technician?

He would have a statutory right to a hearing.

John Paul Stevens:

Does he have a constitutional right to a hearing?

Alex B. Shipley, Jr.:

If dismissed for a cause, I think under Board of Regions and even under Sindermann and I think both of those cases would indicate that he has — if he has the entitlement and if he has charges brought against him which should be necessary–

John Paul Stevens:

(Voice overlap) necessary, yes.

Alex B. Shipley, Jr.:

Then he would have this constitutional right but we have neither of those present here.

Byron R. White:

You think the situation here is like the non ten year teacher, let us say, who is hired for a year and during the term during that year, he might be entitled under his contract to a hearing if his contract was terminated before the year is over.

But at the end of the year, they might refuse renewal of the contract.

Alex B. Shipley, Jr.:

Right.

Byron R. White:

For a reason that if may during the term would entitle him to a hearing but which at the end of the term does not.

Alex B. Shipley, Jr.:

Right.

An our position to Perry versus Sindermann, there is no allegation here of any de facto tenure, not any de facto opportunity to automatically have a right to renew that contract absent any charges or statements against him.

And, I think that is what the crux of this case is, is that this decision is purely a military decision.

Purely whether or not, the military, given the discretion given to the military — the Constitution gave the authority to run the military to the Congress–

William J. Brennan, Jr.:

It is possible that the technician, are essentially military responsibilities, are they?

Alex B. Shipley, Jr.:

They are for military purpose.

William J. Brennan, Jr.:

Well, you would not have this?

He would be on active duty with doing the very same thing he is now doing as a civilian.

Alex B. Shipley, Jr.:

Not necessarily, the very same thing but in the same unit and generally at a rank in the National Guards.

William J. Brennan, Jr.:

Does it suffice this?

These men from a cadre, in the event we suddenly had a war.

They trained and enlarged the group doing the same kind of things for the military and that he does on weekends as a weekend warrior, the same things he does during the week but he is definitely military on weekends.

Alex B. Shipley, Jr.:

He is definitely military on the weekends.

William J. Brennan, Jr.:

Doing the same thing as he is doing during the weekend as a civilian.

Alex B. Shipley, Jr.:

Your Honors, not necessarily the same thing but generally working in the same area.

During the week, he may be dealing more in personnel matters whereas on the weekend he may have a job as a legal court for instance, a military occupation especially some, but generally, at similar capacity.

And this–

William J. Brennan, Jr.:

We do not have this right.

Alex B. Shipley, Jr.:

This right, Your Honor, this is a continuing operation of the military.

These men are the ones that during the week maintain the equipment, who keep the personnel paper works.

William J. Brennan, Jr.:

(Inaudible)

Alex B. Shipley, Jr.:

Exactly.

William J. Brennan, Jr.:

Is that their job?

Alex B. Shipley, Jr.:

That is their job and they provide training schedules and matters for that.

So, when the weekend warrior comes in on Saturday morning to do his monthly drill, he does not have to start from scratch.

He is ready to go and trying militarily.

John Paul Stevens:

General Shipley, can I put my question just a little differently?

It is a bit of different question.

Supposing he asked for a statement of reasons for not being allowed to reenlist and he received a letter which said, one, we have heard from our technical people and they think you are kind of an average technician and they would like to get rid of you, and two, they do not want to take the trouble to have the hearing so we have decided just not to let you reenlist.

John Paul Stevens:

Would that be all right?

Alex B. Shipley, Jr.:

Well, Your Honor, that is not the factual situation here.

And it is questionable under Roth if you are putting the (Inaudible), so to speak, perhaps he does have some constitutionally protective right to some kind of hearing and his technician status and his military status, I do not believe that is ever been determined.

I believe that the Military Commander, this is–

John Paul Stevens:

My hypothetical letter is written by a military man saying this is why we are not going to let you reenlist.

Would you say that is perfectly alright?

Alex B. Shipley, Jr.:

I do not believe, Your Honor.

And I think historically the courts have chosen not to get into that area of military decision making and not to review the military decision.

Byron R. White:

(Inaudible) the argument was that the answer to that question you just asked is yes.

Is is simple, yes or that there is no constitutional right and that he would not get a hearing even for that expressed reason.

I thought that is the position you–

Alex B. Shipley, Jr.:

Well, Your Honor, as I recall it at the first argument, the question was could they consider his technician capacity?

Byron R. White:

I asked you the question a while ago, if they told him expressly that the reason they were refusing reenlistment was because of his poor performance as a technician, what would there be any review, judicial review?

And you said, no there would not be judicial review.

Alex B. Shipley, Jr.:

No, that is my answer.

Byron R. White:

Is it not the still the same answer, Mr. Justice Steven?

Is it or not?

Alex B. Shipley, Jr.:

Well, I felt like the situation — the question was different.

I do not know.

I hope I have not answered the same question in two different ways, I certainly did not intend to.

Byron R. White:

(Inaudible) the only additional fact is they say, (a) we understand you are not a very good technician, and (b) we do not want to be bothered with a lot of hearings.

So instead of having a hearing in the technician side of the coin, we are simply not going to let you reenlist.

Do you think that is perfectly alright?

Alex B. Shipley, Jr.:

I think that is all right at the end of the term of reenlistment, at the end of the enlistment term.

Byron R. White:

And they might put a P.S. on the letter and you were lucky that we waited this long.

Alex B. Shipley, Jr.:

They might Your Honor.

But now, I will not —

Potter Stewart:

But you have waited that long, they could have removed him as a technician only with a hearing.

During his term of enlistment, he would have 10 years in the National Guard.

Alex B. Shipley, Jr.:

For a cause, Your Honor, and I would reiterate that in this case, there is no such allegation and there is no — the military statement was that we have chosen not to enlist you in the best interest of the National Guard and that is the purely military decision that was made by the Military Commander and we think that the question at the Sixth Circuit post is in of itself a military decision.

Alex B. Shipley, Jr.:

If the court has no further questions at this time, I would like to reserve any remaining time, I have for rebuttal, Your Honor.

Thank you.

Warren E. Burger:

Mr. Denton.

William Terry Denton:

Mr. Chief Justice, may it please the court.

I feel that at the outset of this argument that I should point out that Court of Appeals correctly noted that one must look not to the nature of the decision or must look to the nature of the decision and not the mere identity of the decision maker.

This is where we feel that the petitioners were incorrect and that they are alleging that the mere fact that it was a Military Commander who made the decision that it was a military decision.

Our allegations are to the effect that it was a Military Commander who made the decision but he made for a nonmilitary purpose.

That purpose being a sham to remove, to respond from this technician’s employment.

Warren E. Burger:

The decision is not a military decision if the commander reaches the conclusion that his performance as a technician is not supportive of the military mission of the unit?

William Terry Denton:

No sir.

On that instance it would be–

(Inaudible)

William Terry Denton:

It would be a military decision on that instance but whether he wants to remove a man for other than a military purpose, this would be for benefit.

To answer your question, his decision on that instance would be for the benefit of the military.

Warren E. Burger:

You really answered the question both ways.

William Terry Denton:

Well, it can work both ways.

He is capable of working both ways, that is why you must look to the nature of the decision and not merely the decision maker.

Byron R. White:

Supposedly, reenlistment came up, reenlistment was refused and he was notified expressly that we are not reenlisting you because we think you are only an average technician, and we can do better.

We are not saying that there was anything wrong with your performance in the sense that we could have fired you during the term but we just think we can do better so we are going to not reenlist you.

William Terry Denton:

In that instance, I feel that the commander’s decision would then be within the purview of the military decision.

Byron R. White:

But as only if you think — it is only if you think that they are firing him because of some reason —

John Paul Stevens:

Some reason other than a military purpose.

Byron R. White:

Well, suppose they write another fellow and say the reason we are not reenlisting you is because of your performance on a certain day which is, it was — you just were not a good technician on that day.

We could have fired you then for a cause but we just waited till now.

William Terry Denton:

If they had an ability to fire the technician for a cause on any day, then I think under the dictates of Congress and Congress in providing the portion under provision in the statute for removal for a cause, then they must remove for a cause.

Byron R. White:

(Inaudible) they did not go ahead and do it but they just waited until the end of the term.

William Terry Denton:

Then I think it is impermissible conduct.

Warren E. Burger:

(Inaudible) this right–

William Terry Denton:

I do not think Congress ever intended for them to have this dual capacity.

I think this is something–

Warren E. Burger:

The statute says as an enlistment in the guard is the base of the employment.

Is it not?

William Terry Denton:

A requisite.

It is a requisite.

But a man could also have an outstanding military performance record and could be dismissed by a Military Commander.

Warren E. Burger:

Or a statute.

They read this; it is simply saying that if you terminate him within the six-year enlistment period, you have got to give him a hearing or perhaps alternately a dismissal by a Court Marshall.

I suppose that could be done too, could it not?

William Terry Denton:

I am sorry–

Warren E. Burger:

A man could be terminated within the six years if he were found guilty of some offense by a Court Marshall.

William Terry Denton:

Yes, Your Honor.

He could.

If he were Court Marshalled and dismissed with his service as a result of Court Marshall, he could be.

Warren E. Burger:

The administrative appeal on the other side, would he?

William Terry Denton:

No, Your Honor.

He would not.

Warren E. Burger:

But then why can not this statute be read as meaning only that if he is terminated within the period of his enlistment, he gets an administrative hearing but that when his enlistment expires, that is the, and not renewed, that is the end of it.

William Terry Denton:

I do not think, I follow Your Honor, your question here.

Warren E. Burger:

Why does the statute — why cannot the statute be read as meaning simply but if he is terminated during the six-year period of his enlistment, then they must give him the administrative hearing.

But if he is not reenlisted, he is in the same posture as a man who just said he did not want to reenlist but he wanted to keep his job.

William Terry Denton:

The statute deals specifically where the technician’s employment, does not deal with the military aspect of which the technician’s employment does rest upon the military aspect.

The commander as far as a sham could, for political purposes or through friendships, be designed to place someone else in the technician’s position and therefore, refuse reenlistment on that basis.

William H. Rehnquist:

But that would be a constitutionally impermissible reason where there might be one that would not meet the standard for a cause.

William Terry Denton:

According to our, it may would be constitutionally impermissible because it would involve or involve an abuse of discretion or maybe not constitutionally impermissible and be statutory and regulatory impermissible.

William H. Rehnquist:

Okay, but if it is not constitutionally impermissible and still it simply would be a violation of the cause requirement if it had been done under the cause section, what is your argument for the proposition that since they have not proceeded under the cause section, nonetheless, the provisions of that section is somehow important and to what otherwise seems to be rather unlimited discretion.

William Terry Denton:

Our argument would be that if they desire to remove the respondent from his technician’s employment, they should have done so for a cause, had done so through the statute.

William H. Rehnquist:

But the statute gives them two ways, does not it?

It says, you can remove him for a cause or you can deny him reenlistment?

William Terry Denton:

No, Your Honor.

The statute does not say, you can deny a reenlistment.

William Terry Denton:

The statute only deals with the removal for a cause.

I do not think Congress in enacting the statute ever meant to give the National Guard, the means of removal for other than cause.

William H. Rehnquist:

You say that it is a matter of statutory construction of the active congress, he is entitled to a hearing even though he is told he is being denied reenlistment rather than being dismissed from the technician’s job?

William Terry Denton:

I do not think you can read that into the statute, I think that reading into the Sixth Circuit’s decision that this comes from that be permissible or be necessary to give them a hearing, especially in this case where the Commander convened the board which we allege was to hear charges and statements against the respondent.

To make a determination as to whether or not he should be allowed to reenlist then the respondent, — the Commander convenes the board request it to be allowed to appear before this board.

William H. Rehnquist:

Do you think the Sixth Circuit’s decision is based on the United States Constitution? You intended its decision to be based on U.S. Constitution.

William Terry Denton:

I think so, (Inaudible) the statute and regulations.

William H. Rehnquist:

And your argument here is based in part on the constitution as well as on the statute.

William Terry Denton:

In part on the constitution and also regulations, also statutory.

William H. Rehnquist:

What is the constitutional point precisely?

William Terry Denton:

It mean that once the Commander convened the board of all sorts to hear charges and statements and his refusal to allow the respondent to appear before this board, also his refusal to furnish the respondent with a copy of any charges or statements, that was constitutionally impermissible.

William H. Rehnquist:

Why?

William Terry Denton:

Because it denied the respondent his right to procedural Due Process.

It had attached a statement to him before other people who were passing upon his conduct and his performance.

William H. Rehnquist:

But there was never any public statement or so far as I can talk about any private statement as to why your client was denied reenlistment?

William Terry Denton:

Well, quite often, under the law, there are not public statements or public hearings possibly held where people have been entitled procedural Due Process.

There are different methods of denying a person’s procedural due process.

William H. Rehnquist:

So do you contend there was any damaging reason — (Voice overlap)

William Terry Denton:

Well, most certainly we do and it was damaging to the respondent and that he lost his technician’s position.

William H. Rehnquist:

I mean a reason given by the people who refused reenlistment to him.

William Terry Denton:

I think the mere statement of saying that it was not in best interest of the Tennessee International Guard to allow his reenlistment especially in a lot of facts, his being having seventeen-and-half years of employment or military expertise employment.

John Paul Stevens:

Does the record show that seventeen-and-half years?

William Terry Denton:

Your Honor, as General Shipley correctly bought before this court’s attention was first raised in the Sixth Circuit.

John Paul Stevens:

Just to make sure, I understand.

Does the record show that he is 17 years old or not?

William Terry Denton:

You mean his military record or?

John Paul Stevens:

Anything before us showed this.

William Terry Denton:

It would only be in the brief; it would not be in the technical record itself.

John Paul Stevens:

So the answer is no then?

William Terry Denton:

Well, a brief, we put brief in the —

John Paul Stevens:

The brief is not a part of the record, is it not?

Because some mention of the opinion that Sixth Circuits is not there or not?

William Terry Denton:

I believe it is Your Honor.

Thurgood Marshall:

(Voice overlap) the record shows how much time he served in the National Guard.

William Terry Denton:

Actual credible time, I am not sure that it is the National Guard time.

All the National Guard time is seventeen and half year as credible time.

Thurgood Marshall:

They do not have the record.

William Terry Denton:

It would only be possibly on the record as far as the decision of Sixth Circuit.

Thurgood Marshall:

Taking out the decision that the Sixth Circuit, where is there in the testimony, evidence, affidavits, or anything else at the period of time that he was in the National Guard.

William Terry Denton:

Of course there is no testimony.

The only thing we rely on is–

Thurgood Marshall:

There is no testimony–

William Terry Denton:

Be the complaint.

The complaint was dismissed without an evidentiary hearing and of course from there, there have been briefs filed.

Thurgood Marshall:

Sure, how long he was in?

William Terry Denton:

No, Your Honor.

Other than the briefs which have been filed, that would be the only thing.

Thurgood Marshall:

And the brief is not evidence to me.

William Terry Denton:

No, no, Your Honor.

It is not.

Lewis F. Powell, Jr.:

As I understand your position is that once a member of the National Guard becomes a technician, he then can never be denied the right to reenlist, or the assertive right to reenlist without a prior hearing.

Is that right?

William Terry Denton:

He can not be if he is not–the denial reenlistment is not a mere sham to get rid of him from this technician’s employment.

Lewis F. Powell, Jr.:

How does one determine this?

William Terry Denton:

This is to through an evidentiary hearing at least and if there are sufficient allegations in the complaint then this is our contention that the Federal Court should review at least to make a determination whether or not it was the decision made by a Military Commander for a nonmilitary reason as noted in the Sixth Circuit’s opinion.

Lewis F. Powell, Jr.:

The answer to my question then is yes.

William Terry Denton:

That is correct.

Lewis F. Powell, Jr.:

And, that is once the status of technician is obtained, it may be the first month, he is a member of the National Guard.

From then on, he can never be denied the right to reenlist without a prior evidentiary hearing.

William Terry Denton:

The answer is not yes.

William Terry Denton:

It is yes, if his denial to reenlist or the denial to reenlist is a sham to get rid of him from his technician’s employment.

Lewis F. Powell, Jr.:

The Adjutant General just said you are the worst soldier we have ever had.

You are totally incompetent.

William Terry Denton:

Then that would be a military — purely military decision and you have no–

Lewis F. Powell, Jr.:

Would you have to have a hearing to determine whether that was a sham?

William Terry Denton:

No, Your Honor not in that instance because it would be a military decision and not merely a military decision maker making decision for nonmilitary purpose.

John Paul Stevens:

But supposing he did not believe that that was the real reason.

The point is that, that is what you told me but I know the real reason you fired me or would not be reenlisted because you did not like my work as a technician.

Would he always be free to make that allegation and the complaint?

William Terry Denton:

He could.

He could make that allegation and it would be up to the court to determine whether or not he had sufficient –or made sufficient allegation.

John Paul Stevens:

Allegation regardless of what the commanding officer said to him.

William Terry Denton:

He could.

John Paul Stevens:

So that he always would have an opportunity.

William Terry Denton:

Right he – but also he would have to show sufficient allegations before the court would be willing to review on the oral argument.

John Paul Stevens:

Well, his allegation be exactly what you put in this complaint, but the real reason you said that is you did not like my work—

William Terry Denton:

True.

John Paul Stevens:

And you did not like me at hearing.

Lewis F. Powell, Jr.:

(Inaudible) would you assert that he had any ground for complaint upon denial of reenlistment?

William Terry Denton:

If you were not a technician and merely with the military personnel.

Lewis F. Powell, Jr.:

Just as an ordinary National Guard.

William Terry Denton:

No, Your Honor.

He would not have a right to a hearing in this instance and if he was merely military personnel.

Lewis F. Powell, Jr.:

On the fact that your client is a technician or was a technician.

William Terry Denton:

Right, Your Honor.

I think the facts on the decision in this case are unique to my client’s type of employment.

It does not apply across the board to all military personnel.

It applies in an instance where you have civilian technician’s employment based upon military employment.

Lewis F. Powell, Jr.:

Before one may retain the position of technician, he must be a member of the National Guard.

William Terry Denton:

That is correct.

William Terry Denton:

We have no argument with that.

That is by operation of law.

If he loses his guard membership, he loses his technician’s employment.

William J. Brennan, Jr.:

How many days a week as a technician?

William Terry Denton:

He is a technician for five days a week.

William J. Brennan, Jr.:

And the other two?

William Terry Denton:

The other two, he is off-duty.

Actually, he has I think one weekend per month that he performs services as a National Guardsman.

William J. Brennan, Jr.:

(Inaudible)military.

William Terry Denton:

Yes, Your Honor.

He does.

William J. Brennan, Jr.:

And are doing the same functions that he performed during the week as a civilian technician?

William Terry Denton:

Basically as I understand, most of them are.

In this particular instance, the respondent did perform a very same function.

William J. Brennan, Jr.:

And then, the commander said we are not allowing you to reenlist because one weekend in the month you performed so poorly, we decided that you would not reenlist.

You are not permitted to reenlist, then what is the situation.

William Terry Denton:

If it is made for military purpose where in that case it is.

William J. Brennan, Jr.:

That day, performing military duty, you did not perform satisfactorily and for that reason, we are not permitting you to reenlist.

William Terry Denton:

But again, there would not be a sham to get him out of his technician’s employment.

It would be for military reasons.

William J. Brennan, Jr.:

That would have been very simple then instead of denying him reenlistment.

As they did — as that merely said, you deny a reenlistment because on one weekend of the month that you have to report as a military person, you did not perform satisfactorily.

William Terry Denton:

That is correct and also–

Harry A. Blackmun:

(Inaudible) I think a U.S. attorney is appointed four years.

Suppose the four-year period expires and he is not reappointed, is he entitled to a hearing?

William Terry Denton:

I do not believe so Your Honor.

I believe that would probably fall in –- I do not recall the exact name of the case, but it was in regard Henan or Henner, some of that nature where the District Court clerks, law clerk or maybe the clerk of the District Court was not retained by the Federal District Judge and the court held that, that was not reviewable.

Harry A. Blackmun:

The U.S attorney, normally is appointed by the executive.

Sometimes if there is a vacancy where the District Court steps in but I am just speaking of the usual situation.

William Terry Denton:

It would be a purely discretionary matter.

William Terry Denton:

Well, it might possibly, it could attach, if the U.S. attorney had performed such a job for such a period of time whereby he became vested with a property interest and continued employment.

This is another aspect of this and we feel that due to the respondent’s past military record, awards, citations, being within–

Harry A. Blackmun:

If I understand you, are you saying that the U.S. attorney can acquire some kind of tenure at his job beyond his period of appointment?

William Terry Denton:

If you want to relate tenure and a vested property interest, you want to say they have the same connotation, yes.

I do not feel they have the same connotation, I think tenure is being somewhat different from invested property interest by virtue of things that have been performance of the employee-employer relationship or whatever over the past.

It would be probably somewhat — again to Perry versus Sindermann where it was found that there was a ten year program although not spelled out — and the profession became vested with the right or property interest and it continued employment and renewal of his contract.

William H. Rehnquist:

Mr. Den, are you familiar with Roth, I take it at Board of Regents versus Roth?

William Terry Denton:

Yes sir.

William H. Rehnquist:

Are you aware that there in that case when it had been on the Seventh Circuit before it got here.

Although Roth had no claim of entitlement to be rehired, it was simply about ten year at will.

The Seventh Circuit held that as a prophylactic matter to make sure that the refusal to rehire was not for impermissible purposes.

He was entitled to a hearing either in Federal Court or Administrative and this court disapproved that.

As I read the opinion, it seems to me that your argument that there is a prophylactic necessity for this, we are going to make sure that it was not improper reasons as very much to the position of the Seventh Circuit took in Roth and that was not followed in this court?

William Terry Denton:

I think the distinction in that case was that the Seventh Circuit held that mere subjective expectancy was protected and this court disagreed saying that a mere subjective expectancy was not.

I agree with that.

Mere subjective expectancy is not protected.

We think that the respondent had a justifiable and reasonable expectancy based on the seventeen-and-half years of credible time, based upon previous reenlistments, based upon military record and awards and citations, that they had created in him a reasonable, justifiable expectation that he would be allowed to reenlist.

John Paul Stevens:

Mr. Denton, that argument does not — (Voice overlap)

William Terry Denton:

I will get off of a trial.

John Paul Stevens:

(Inaudible) that fact is other than as being a technician and I thought I understood your answer Mr. Justice Powell by saying relied entirely on the status as a technician.

And if that is true, I do not see whether it makes any difference whether one year or seventeen-and-half years.

William Terry Denton:

Sorry, I do not follow, Your Honor.

John Paul Stevens:

Do you rely on any — would you say he had a claim if you were not a technician.

William Terry Denton:

If he were not a technician does he have a claim, no Your Honor.

John Paul Stevens:

Or if you rely entirely on the status as a technician, what difference does it make whether he was in the service for 17 years or only for six weeks.

William Terry Denton:

If I rely on his status of the technician?

John Paul Stevens:

Yes.

Your point being that when his term of reenlistment comes up, his status as a technician entitles him to a special protection but it seems to be that is completely independent of the seventeen-and-half year point and vice versa.

William Terry Denton:

It is total of (Voice overlap)

John Paul Stevens:

Does seventeen-and-half years give him expectancy under Roth and all the rest of it, then he does not need to be a technician.

William Terry Denton:

His seventeen-and-half years gives him an expectancy of reenlistment.

Once he reenlists, then his technician’s employment continues unless dismissed for a cause.

John Paul Stevens:

I have to confess, I am confused.

William Terry Denton:

May I go back to the idea that once the board was convened, the respondent became closed with the right to appear before this board, a right to have the copy of the charges or statements made against him and all of which were denied to him.

This was set forth in the complaint.

Also set forth that the commander exceeded his scope of authority and abused the authority if it is in fact vested in him.

The complaint listed out the alleged vested discretional prerogative.

Our position is that this discretional prerogative does not in fact exist.

If it does in fact exist, we would have expected the petitioners to set forth specifically where that regulation or statute vesting the commander with this discretional prerogative where we can locate it.

Some of them I have totally failed to do, which were been very simple I think possibly could have foreclosed the issues in this case.

Of course, we feel that the commander overstepped his authority and abused it, enacted in arbitrary capricious and unreasonable manner when they used the military aspect of the respondent’s employment in order to terminate his technician’s job.

Also, if the Military Commanders given an un-fretted authority or prerogative or discretion without judicial restraint or the possibility of review by the judiciary, then the decision of the Military Commander would be left to stand even if they were made on constitutionally impermissible or statutory or regulatory impermissible grounds such as race, religion, or sex.

To deny a review would then to allow the Military Commander to do that which the constitution statute regulation says he cannot do.

William H. Rehnquist:

But you did not allege that here, did you, in your complaint?

You did not allege that the refusal to allow reenlistment was because of race, religion, something like that?

William Terry Denton:

No, Your Honor.

We did not.

That issue has not been raised in the complaint.

We would say that once sufficient allegations have been made before the court, allegations of nature that the Commander has exceeded his statutory and regulatory authority, that the Commander had violated the constitutional rights of the respondent or over his petitioner or plaintiff, that then the courts could review.

They have the right to review in the first instance to determine if there has been a violation and if this violation–

Thurgood Marshall:

Let us take this seriously.

Now, this man’s enlistment period is up.

William Terry Denton:

Correct.

Thurgood Marshall:

He is no longer a technician.

William Terry Denton:

That is correct.

Thurgood Marshall:

Now, if he comes back, what is the difference between when he recently applied?

William Terry Denton:

If he comes back now?

Thurgood Marshall:

When there is a (Inaudible) between the ending and the reenlistment, is it not? (Inaudible).

William Terry Denton:

Are you talking about in this particular instance, if the respondent went back and asked for reenlist–

Thurgood Marshall:

This particular case does, I mean is not he just right in the Roth case.

William Terry Denton:

I am sorry, I did not know.

Thurgood Marshall:

Is it not he right in the Roth case and his enlistment is up and he is asking for a new enlistment.

William Terry Denton:

Right.

Thurgood Marshall:

And in the mean time, he is not a technician.

William Terry Denton:

It is done, Your Honor, so as not to — so there will not be break in his employment either as a military personnel or a technician.

Potter Stewart:

He had been allowed to be reenlist whether It would have been a continuous situation.

William Terry Denton:

Right, it would have — he would have been–

Potter Stewart:

Both in the National Guard and as a technician.

William Terry Denton:

Right.

Potter Stewart:

What is the term enlistment in the National Guard?

I do not–

William Terry Denton:

The term of enlistment–

Potter Stewart:

In terms of years, I mean.

William Terry Denton:

Varies.

I believe under the regulations, the secretary can allow enlistment for periods as short as one half or six months, maybe even possibly shorter up to, I think a maximum of six years at one time.

It varies.

Potter Stewart:

(Inaudible) of the applicant or of the particular unit or what?

William Terry Denton:

These depend upon on a various things such as the age of the applicant, if he is eligible within a matter of a short time, possibly six months, he would be eligible for retirement then they may reenlist him for six-month period.

Potter Stewart:

The normal term is six years, is it like that?

William Terry Denton:

I am really not that familiar with HR to be able to answer that.

Again we feel that the Sixth Circuit’s decision does not go outside the old bounds of non-reviewability but actually, as we enter of that, they just set forth a method of review, if there are sufficient allegations.

We feel that the Sixth Circuit’s decision is judicially correct and based upon —

Potter Stewart:

Can you know the opinion written for the Court of Appeals is written by a former member of the Court of Military Appeals?

William Terry Denton:

It was formally–Judge Duncan was formally the Chief Justice as I understand, the United States Court of Military Appeals and as such, I would feel that he does possess some expertise in the military matters.

That is all, thank you.

Warren E. Burger:

Do you have anything further.

Alex B. Shipley, Jr.:

Briefly Your Honor, I would like to reiterate that this was a purely military decision and to refer, Your Honors, to the prayers of the complaint.

He wants to be reinstated in his employment.

He wants to be reinstated in the National Guard.

He wants full back pay for any period of time after which he was terminated in his guard-technician status, and is seeking $100,000.00 in damages from his Military Commanders and we would assert that to subject Military Commanders to the possibility of these type suits would severely interfere with the military preparedness of this country through the National Guard program.

Warren E. Burger:

Thank you gentlemen.

The case is submitted.