United States Court of Appeals

For the First Circuit

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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.
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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 nonjusticiable. 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).