# United Stat es Court of Appeals For the First C ircuit

____________________ 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. LeonardJ. 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.-2-

Pollak, Dis tric t Judge
. This litigation has traveled a

tortuous path -- begun in a Rhode Island t rial court, removed to the United States District Court for the District of Rhode Island, appealedto 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 thi s court fo r final disposition of the pending appeal in the light of the authoritative explication of Rhode Island la w prov ided by the state Supreme Court. In this Court's prior opin ion, W igginton v. Centracchio , 205 F.3d504 (1 st Cir. 2000), as predicate for our announcement of certain interim rulings and for our invocation of the a id of the Supreme Court of Rhode Island, we narrated in considerable detail the events giving rise to this litigation and the proceedings in the Dist rict 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 th e inte rim rulings announcedin our prior opinion, cu lminat ing in an explanation of why we found it appropriate to solicit the assistance of Rhode Island's highest court with respect to questions o f Rhod e 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 leadi ng to litigation, and the proceedings in the
District Court

A. The events leading to litigation :-3-

Appellant Eugene E. Wigginton served in the Marines from 1967 to 1970 and was then honorably discharged. In 1979 Wigginton was commissionedas a second li eutena nt 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 con sidered by a Selective Retention Board, pursuant to National Guard Regulation ( ? NGR ? ) 635- 102. The stated pu rpose 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 B oard 's recommendation, Brigadier General Reginald E. Centracchio, Adjutant General of Rhode Island, then notified Wigginton that he was to be separatedfrom 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-4-

commission constituted deprivation without due process of law of a constitutionally protected property right to continue as a commissionedofficer until age sixty -- a substantive right assertedly embodied in § 30-3-13 of Rhode Island General Laws. That statutory provision, part o f 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 office r 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, containedtwo elements. One element was a claim that the criteria prescribedby 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 abs ence of any explanation of the grounds for the non-retention decision con stit uted a fatal due process flaw. B. The proceedings in the District Court

Cen tracchio removed the case to the District Court and the n filed a motion to dismiss. The Magistrate Judge to whom the case-5-

hadbeen referred recommended to the District Judge that the motion to dismiss be granted on the ground that claims aris ing 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 re in statement in commissioned status -- could be entertained by an Article III court. The District Court then authorized the parties to engage in discovery addressedto the meaning of R.I. Gen. Laws § 30-3- 13, the Rh ode Island st atute relied on by Wigginton in the first count of h i s 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 Cen tracchio's motion for summary j udgment. With respect to Wigginton's first count, the Di stric t Co urt found that neither Wigginton nor Centracchio had presented

ev iden ce 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 cla im, his inability to demonstrate that he was an "o ffice r [] 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-6-

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 dis missing 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 determinedthat, 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 Distric t C ourt's grant of summary judgment in favor of Centrac chio. 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 Se lec tive Retention Board had not adhered to the de cisio nal criteria prescribed by NGR 635-102; accordingly, we confinedour attention to Wigginton's claim that he had a due process right to an explanation of the reasons for the den ial o f 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 notedabove, the District Court reasoned that, since the testimony andarguments presented by the parties shed no useful light on the-7-

meaning of the crucial and opaque statutory phrase "staff corps and de partme nts," 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 cla im "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 tend i ng 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 arrivedat as to what the governing law was. That is to say, neither the mean ing 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 I slan d 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 Is land. 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-8-

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, andwe then went on to conclude that the sensible course was to ask the Supreme Court of Rhode Island to pro vide an authoritative construction of this esoteric statute:

The general thrust of the fir st two sentences of t he statute is apparent. Those persons who are "commissioned officers of the staff corps and departments . . . shal l hold their positions until they have reached the age of sixty (60) years, unless retired prior t o that time by reason of resignat ion o r disability, or for cause to be determi ned by an efficiency board or a court martial." Major Wigginton -- a commissioned officer of RIANG who had not reached age sixt y, 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 depar tmen ts." 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 hadprevious military experience, except chaplains, officers of the judge advocate general's corps, and medical corps officers" - - makes it plain that the phrase "staff corps anddepartments" connotes a cohort inclusive of, but broader than, "chaplains, officers of the judge advocate general's corps, and medical corps officers." How much broader? Broadenough 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-9- 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. L aws § 30-3-13 and we have found none. Furth e r, the parties have not cited any pertinent decisions construing R.I. Gen. Laws § 30-3-13; an d 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 utilizedin either of the two other provisions of the statutory code governing RIANG that employ the phrase). Thus, what we have before us is a Rhod e Islandstatute 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 gov e rns 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 pendi ng ap peal, it plainly would be better to have a current and authoritative construction of R.I. Gen. Laws § 30-3-13 by the Rhode Isl an d judiciary than to have a conjecturedprophecy by this court of what Rhode Island's courts might be expected to rule at s ome future time. Happily, the Suprem e Co urt of Rhode Island has in place a procedure pursuant to which it "may answer questions of law certified to it by . . . a Co urt 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 andas to whic h 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 quotedrule precisely describes the circumstance in which this court finds itself. 205 F.3d at 518-19 (footnote omitted).-10-

Accordingly, invokin g the Supreme Court of Rhode Island's procedure for responding to questions certified by other courts, we certifiedtwo questions, expl aining 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 (1 st Cir. 2000), the Ord er fo r Certification having been crafted as a supplement to our opinion. The two certified questions were as follows:

1. At the time Major Wiggint on w as disch a rgedfrom 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. Law s § 30-3-13, Major Wigginton was (in the absence of resignation, disability, or dismissal for cause) therefore entitled to continue as a RIANG officer un til 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 I slan d

determines that Major Wigginton was not, when dischargedfrom 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, advers el y 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 C ourt 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 p lain text connotes -- namely, that Ma jor W igginton, as an officer who has not-11- been retired by resignation or disability, or for ca us e, 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 continuedstatus until a ge 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 repor tedat Wigginton v. Centracchio , 787 A.2d 1151 (R.I. 2001 )
. Acopy of the opinion is annexed hereto as an appendix to this opinion.
In the opening two paragraphs of the opini on, Ch ief Justice Williams states:

The United States Co urt of App eals For the First Circuit has requested from this Court its opinion with regard to two certified questions s o a s to assist that court in resolving a wrongful termination claim under 42 U.S.C. § 1983. The First Circuit sought clarification of the m eaning 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 determinedthat the questions, as certified, required resolution of issues of fact, a task not per mitted 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.-12- "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 C ourt 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 refer red to as the "line"). See James E. Hewes, Jr., FromRoot 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 performeda "specialized function or service." Id
. Some of the staff departments wer e referredto as "corps," including the corps of engineers and signal corps. Some were referredto as "departments," including the JAG department, the adjutant general's department, the quartermaster's department, the subsistence department, the pay-13- department, the medical department and the ordnance department. Thus, in the early nineteenth century, the term "staff corps and departments" referredto groups of officers performing a "specialized function or service." The scope of "staff corps and departments," however, evolvedbecause of the continuous reorganization of the War Department. For example, in 1917, the quartermaster, subsistence and pay departments were consolidatedinto 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 frommembers 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 Dep a rtment. 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 GuardAdj. Gen. Ann. Rep. 19. The "staff corps and departments" consisted of the adjutant g eneral's department, th e 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 Hew es , 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 Depa rtment of the Army. See id
.-14- 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 branch es an d the special branches. See 10 U.S.C. §§ 3063, 3064, 3067. There is no group of officers deemed members of the "staff corps anddepartments." Further, branches that were historically members of the "staff corps and departments" are now found in both the basic andspecial 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 mu s t assume then that the Legislature adopted the provisions governing the RIANG without intending to have its organization conflict wi th i ts federal counterparts. This must be true since § 30-3-13 expressly provides that the Legislature intends for the RIANG to be "organizedas to branch or arm of service into such f ederally recognized units , organizations, corps, departments, or otherwise as shall be authoriz ed b y the laws of the United States and the regulations issued thereunder."

Conclusion In conclusio n, we fin d that the term "staff corps and departments" is a vestigial termthat cannot fairly be con strued to have any meaning in modern military organization or application to presently commissioned officers. This Co urt is constrained to make such a conclusion because history has wrought such substantial change to the organization andstructure of the U n ited 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 de clin e to permit such an absurd result. See In re Estate of Gervais , 770 A.2d at 880 (citing Hargrea v es v. Jack , 750 A.2d 430, 435 (R.I. 2000)).-15-

In our Or der for Certification we stated that "[i]f the Supreme Court of Rhode Island determines that Major Wigginton was not, when dischargedfrom 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 co nstrued 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 commissionedofficer s ," 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).