
USCA1 Opinion

	




                            UNITED STATES COURT OF APPEALS                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                FOR THE FIRST CIRCUIT                                 ____________________        No. 92-2338                                    OSCAR CHARLES,                                Plaintiff, Appellant,                                          v.                       HONORABLE DONALD RICE, SECRETARY OF THE                            UNITED STATES AIR FORCE, ET AL.,                                Defendants, Appellees.                                 ____________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                           FOR THE DISTRICT OF PUERTO RICO                     [Hon. Carmen C. Cerezo, U.S. District Judge]                                             ___________________                                 ____________________                                        Before                                 Cyr, Circuit Judge,                                      _____________                            Bownes, Senior Circuit Judge,                                    ____________________                              and Stahl, Circuit Judge.                                         _____________                                 ____________________            William  Ramirez-Hernandez, with whom Paula  Sciabarrasi, Vargas &            __________________________            __________________  ________        Ramirez Law Office,  and Charles S. Hey-Maestre, Sabana  Education and        __________________       ______________________        Civil Rights Project, were on brief for appellant.            Michael S. Raab, Attorney, Civil Division, Department of  Justice,            _______________        with whom  Guillermo  Gil, United  States Attorney,  Frank W.  Hunger,                   ______________                            ________________        Assistant Attorney  General, Anthony  J.  Steinmeyer, Attorney,  Civil                                     _______________________        Division,  Department of Justice, and  Col. Raul F.  Barbara, Lt. Col.                                               _____________________  ________        Conrad  Von Wald,  Major Carla  S. Walgenbach,  and Major  Patricia A.        ________________   __________________________       __________________        Kerns, Of Counsel,  Department of  the Air  Force, General  Litigation        _____        Division, were on brief for appellees Honorable Donald Rice, Secretary        of the         United  States  Air Force,  and Lt.  General Conaway,  Chief, National        Guard Bureau.             Carlos Lugo-Fiol, Deputy  Solicitor General  for the  Commonwealth            ________________        of  Puerto  Rico,  with  whom Pedro  A.  Delgado-Hernandez,  Solicitor                                      ____________________________        General,  was  on  brief  for  appellees  William  Miranda-Marin,  the        Adjutant General of the Commonwealth of Puerto Rico, Colonel Manuel A.        Guzman,  of the Puerto Rico  Air National Guard,  and Colonel Gilberto        Colon, Personnel Officer, Puerto Rico Air National Guard.                                 ____________________                                    July 14, 1994                                 ____________________                      BOWNES,  Senior  Circuit Judge.    After  more than                      BOWNES,  Senior  Circuit Judge.                               _____________________            twenty years of service in the Puerto Rico Air National Guard            (PRANG)  and  employment  as  a  National  Guard  technician,            plaintiff-appellant, Oscar Charles,  tested positive for  the            Human Immunodeficiency  Virus (HIV)  and was discharged  from            PRANG and from his technician job.  Plaintiff filed an action            under   42  U.S.C.      1983   seeking  declaratory   relief,            reinstatement,  and back  pay from  defendants-appellees, the            Secretary  of the United States  Air Force, the  Chief of the            United  States National  Guard  Bureau, PRANG,  the  Adjutant            General of Puerto Rico, and two PRANG officers.  The district            court reached  the merits and  ruled in favor  of defendants.            See Doe v. Rice, 800 F. Supp. 1041 (D.P.R. 1992).   We vacate            ___ ___    ____            the decision with  respect to plaintiff's claim  for back pay            for his technician job, but affirm the decision on the merits            in all other respects.                                          I.                                          I.                                      BACKGROUND                                      BACKGROUND                                      __________                                    National Guard                                    National Guard                                    ______________                      Before  stating the  facts immediately  relevant to            plaintiff's case, we provide the following description of the            National  Guard.   The Guard  is a  hybrid state  and federal                                         -2-                                          2            organization.1    While a  part of  the  Armed Forces  of the            United States, the Guard                       occupies a  distinct role in  the federal                      structure that does not fit neatly within                      the  scope  of either  state  or national                      concerns.   In  each  state the  National                      Guard  is  a  state  agency,  under state                      authority and control.  At the same time,                      federal  law  accounts, to  a significant                      extent, for the composition  and function                      of the Guard.  Accordingly, the Guard may                      serve  the state in times of civil strife                      within  its  borders  while   also  being                      available  for   federal  service  during                      national emergencies.              Knutson  v. Wisconsin Air Nat'l Guard, 995 F.2d 765, 767 (7th            _______     _________________________            Cir.), cert. denied, 114 S. Ct. 347 (1993).                     _____ ______                      The governor and his or her appointee, the Adjutant            General,  command the Guard in  each state.   See, e.g., P.R.                                                          ___  ____            Laws Ann.  tit. 25,    2058-2059;  see also 32 U.S.C.    314.                                               ___ ____            The  Defense Department, the Secretaries of  the Army and Air            Force,  and the National  Guard Bureau  prescribe regulations            and  issue orders  to  organize, discipline,  and govern  the            Guard.   32 U.S.C.    110.  States  that fail to  comply with            federal   regulations  risk   forfeiture  of   federal  funds                                            ____________________            1.  National Guard  units may  be established in  the states,            territories, Puerto  Rico, and the District of  Columbia.  32            U.S.C.   101(6).   For the sake of  convenience, we refer  to            all these entities as states.  The differences between Puerto            Rico   and  a   state   are  immaterial   in  this   context.            Penagaricano  v. Llenza, 747 F.2d 55, 56 n.1 (1st Cir. 1984),            ____________     ______            overruled on other grounds by Wright v. Park, 5 F.3d 586, 591            _________ __ _____ _______ __ ______    ____            (1st Cir. 1993).                                         -3-                                          3            allocated to organize, equip,  and arm state Guards.   Id.                                                                      ___            101, 107, 108, 501; Knutson, 995 F.2d at 767.                                  _______                      Every  member of  the state  Air National  Guard is            also enlisted  in a  federal  organization known  as the  Air            National Guard of  the United States (ANGUS),  a component of            the Ready  Reserves of the  Armed Forces, which  is activated            when the Guard is called into federal service.  10 U.S.C.                261,  269,  8079, 8261;  32 U.S.C.      101, 301;  Perpich v.                                                               _______            Department of Defense, 496 U.S. 334, 345-46 (1990).            _____________________                      Many Guard members,  so-called "weekenders,"  serve            only part-time,  by participating in drills  and maneuvers on            weekends  and  in the  summer.    National Guard  technicians            participate  in those  activities,  but  also hold  full-time            civilian  jobs  with  their  units.   Guard  technicians  are            federal  civil servants,  hired and  supervised by  the state            Adjutant  General.   32  U.S.C.     709.    Technicians  must            maintain membership  in the  state Guard to  remain qualified            for federal employment.  Id.                                     ___                         Plaintiff's Separation from Service                         Plaintiff's Separation from Service                         ___________________________________                      Plaintiff enlisted  in PRANG in 1967  and was hired            as  a Guard technician two  years later.   From 1969 until he            was  discharged, he drew two  salaries:  one  from PRANG, and            the  other from the federal government for his services as an            aircraft  maintenance technician.   In  June 1990,  he tested            positive  for   HIV  in  a  routine   screening  of  military                                         -4-                                          4            personnel.  That  result was  confirmed by a  second test  in            June or early July 1990.                       Plaintiff received an order on September 21,  1990,            stating that  he had been honorably discharged  from PRANG on            September 17, 1990, and transferred from the Ready Reserve to            the  Standby Reserve.  That  order was based  on Air National            Guard Regulation  (ANGR) 39-10, which states  that members of            the  Guard testing positive  for HIV shall  be transferred to            the Standby  Reserve  unless a  "nondeployable  position"  is            available.  ANGR 39-10   8-25.  "Deployability," according to            the record, refers to the ability  to be sent anywhere in the            world for duty.  The district court heard testimony that most            Guard positions are classified as deployable.                        On October  16, 1990,  plaintiff was  notified that            his eligibility for employment as a technician ended  when he            was discharged from the Guard.  Plaintiff was advised that he            would be separated from federal employment after November 19,            1990.                       Plaintiff's requests for revocation of these orders            were unavailing.  In addition, his application for disability            benefits was  denied because he was  not physically disabled.                      Thereafter,  plaintiff filed  suit  in  the  United            States  District  Court  for  the District  of  Puerto  Rico,            alleging that ANGR 39-10 was invalid, and that  his discharge            from  PRANG and  from  his technician  job violated  National                                         -5-                                          5            Guard  regulations,  Defense   Department  policy,  and   the            principles of  due process  and equal protection.   Plaintiff            sought  reinstatement  and  back  pay for  his  military  and            civilian jobs, as  well as a  declaratory judgment that  ANGR            39-10  was invalid.    After prevailing  in several  pretrial            skirmishes,2 plaintiff  was ultimately unsuccessful  when the            court decided  his case  on the  merits.  Plaintiff  remained            asymptomatic at the time of trial.                                        Issues                                        Issues                                        ______                      The issues  on appeal arise from  the trial court's            decision  that ANGR  39-10  was valid,  and that  plaintiff's            separation from PRANG  and from his federal  position did not            violate  due process  and  equal protection  principles.   In            addition  to   assailing  several  of  the   court's  factual            findings, plaintiff  raises the following legal  issues:  [1]            whether the  lack of  a hearing  upon his discharge  violated            ANGR 39-10  and  his right  to  procedural due  process;  [2]            whether ANGR 39-10 conflicted with Defense Department policy;            [3]  whether   ANGR  39-10   violated  his  right   to  equal                                            ____________________            2.  The  district  court  issued  interlocutory  orders  that            plaintiff's case was justiciable,  and that plaintiff was not            required  to seek  relief from  the Air  Force Board  for the            Correction  of Military  Records  prior to  filing his  civil            suit.  Those  issues have not been briefed by  the parties on            appeal, and we  do not address  them in this  case.  For  the            same reason, we do not address whether defendants can be said            to have  acted  under  color  of  state  law  in  discharging            plaintiff.                                           -6-                                          6            protection;  and  [4] whether  he was  entitled to  a hearing            before a medical board.                                           II.                                         II.                                        MERITS                                        MERITS                                        ______                                     Regulations                                     Regulations                                     ___________                      Plaintiff argues  that PRANG failed to  follow ANGR            39-10 in discharging him.  At the time of the discharge, that            regulation provided in pertinent part:                       Members [of  the Air National  Guard] not                      entitled to military medical  health care                      who  display  serologic evidence  [of HIV                      infection]  will  be  transferred to  the                      Standby  Reserves if they  cannot be used                      in  a  non-deployable  position.    These                      members will be referred to their private                      physicians    for   medical    care   and                      counseling.            ANGR  39-10   8-25(b).   Plaintiff does not  argue that PRANG            lacked the authority to discharge him once he was transferred            to the Standby Reserve.  Rather, plaintiff's argument is that            PRANG  did not follow  the procedures required  by ANGR 39-10            when he was transferred to the Standby Reserve.                       The court  found that plaintiff was discharged from            PRANG  and transferred  to  the Standby  Reserve after  PRANG            conducted an unsuccessful search for a nondeployable position            compatible with plaintiff's civil  technician job.  We review            the findings for clear  error, Fed. R. Civ. P.  52(a), paying            heed  to the district court's superior  position to gauge the                                         -7-                                          7            credibility  of witnesses.   Dedham  Water Co.  v. Cumberland                                         _________________     __________            Farms Dairy, Inc., 972 F.2d 453, 457 (1st Cir. 1992).              _________________                      In this case, we find no error in the determination            that a  PRANG personnel officer, Major  Urutia, had conducted            an  adequate--but ultimately  fruitless--search from  July or            August of 1990 into 1991 for a vacant, nondeployable position            for plaintiff.  Urutia testified that the search for a vacant            position  extended  beyond plaintiff's  own  unit  into other            units  and  took  into  consideration  plaintiff's  tactical,            environmental,  and electrical  systems  expertise.    Urutia            testified  that she was unable to find a vacant nondeployable            military position compatible with plaintiff's qualifications.            A unit manning document  compiled in August 1990, as  well as            the  testimony  of  Julio  Godreau  Marrero,  an  officer  in            plaintiff's squadron, corroborated Urutia's testimony.                        The record contains two statements regarding vacant            nondeployable  positions:   one  witness stated  that he  had            heard--but was  unable to verify--that a  cook's position was            available, and  another witness  testified that he  had heard            that  a  switchboard operator  position  was  vacant in  late            December  1991.  Even if we were to assume that these hearsay            statements were reliable, but  cf. Doe, 800 F. Supp.  at 1047                                      ___  ___ ___            n.7 (describing  one of  the statements as  "vague hearsay"),            there is nothing in the record indicating that either job was            compatible   with   plaintiff's  position   as   an  aircraft                                         -8-                                          8            maintenance  technician.   Plaintiff  has not  challenged the            district  court's  finding  that  the  Air   Force  considers            compatibility between a Guard member's military and  civilian            technician positions necessary.  Id. at 1047 & n.6.   We find                                             ___            ample support in the record  for the district court's finding            that  no suitable,  nondeployable  positions were  available.            Consequently,  we  conclude that  plaintiff's  discharge from            PRANG  and transfer to  the Standby  Reserve did  not violate            ANGR 39-10   8-25.                      Plaintiff  next attacks  the  absence of  a hearing            accompanying  his  discharge  as  violative  of  ANGR  39-10.            According  to  plaintiff,  paragraph   1-23  of  ANGR   39-10            guaranteed him a hearing.  That paragraph provided:                      Unless otherwise  indicated, airman [sic]                      recommended for discharge under [ANGR 39-                      10]  will be  offered an  opportunity for                      administrative       discharge      board                      [procedures] . . . .            ANGR 39-10   1-23.  Prior to  plaintiff's discharge, however,            ANGR 39-10 was amended as follows:                       Effective immediately  [August 10, 1990,]                      _________________________________________                      members  processed  [in accordance  with]                      _________________________________________                      ANGR   39-10,  para  8-25   will  not  be                      _________________________________________                      notified nor offered  an opportunity  for                      _________________________________________                      administrative       discharge      board                      _________________________________________                      procedures.    The  upcoming revision  of                      _______________                      ANGR 39-10 will indicate these cases will                      be   administered   through   appropriate                      medical channels.                 (Emphasis added.)                                         -9-                                          9                      Citing Nicholson  v. Brown, 599 F.2d  639, 648 (5th                             _________     _____            Cir. 1979), for the proposition that an agency's "application            to  a case  of  new principles  announced  in the  course  of            deciding that case  may be  so tinged with  unfairness as  to            amount to an abuse" of  discretion, plaintiff argues that the            amendment was invalid  as to him.   While  we agree that  the            amendment became effective after  he tested positive for HIV,            we disagree that it  constituted a new rule developed  in the            course  of a  proceeding  affecting plaintiff.   Rather,  the            amendment to ANGR 39-10  was procedural, not substantive, and            became effective before plaintiff's discharge  was processed.            "The   [procedural]  regulations   in  force   at   the  time            administrative proceedings  take place  govern, not  those in            effect  at some earlier time  when the events  giving rise to            the action occurred."  Chilcott v. Orr, 747 F.2d 29,  34 (1st                                   ________    ___            Cir. 1984); accord  Alberico v. United States, 783 F.2d 1024,                        ______  ________    _____________            1028  (Fed. Cir. 1986).   Accordingly, the  amendment to ANGR            39-10 deleting the right to an administrative hearing applied            to plaintiff's case.                        Plaintiff  attempts  to  impugn  the  amendment  by            arguing that it is analogous to a bill of attainder, and that            it was never formally adopted.  A bill of attainder  is a law            that inflicts punishment upon identifiable members of a class            without providing  a judicial trial.   Nixon v. Administrator                                                   _____    _____________            of Gen. Servs., 433 U.S. 425, 468-69 (1977).              ______________                                         -10-                                          10                      Plaintiff's  allegations  are  unsupported  by  the            record.  Captain Robinson,  the National Guard Bureau officer            responsible for  the amendment to ANGR  39-10, testified that            he proposed  it in  1989 to eliminate  unnecessary procedures            where the  individual's HIV status was  undisputed, and where            there were  no nondeployable positions available.   According            to Robinson, only if  a nondeployable position were available            would  further  procedures be  warranted  to  make a  medical            determination  of whether the  HIV infection  would interfere            with the duties of  that position.  An  administrative board,            however, could not make such an evaluation because it lacks a            medical faculty.  And because Guard members are generally not            entitled  to  military  medical  health  care,  the  infected            individual  would  have to  pay  for  any additional  medical            tests.  It is undisputed that plaintiff's status in the Guard            did not  entitle  him  to military  health  care.    Robinson            testified that his superiors  approved the amendment and that            it became effective on  August 10, 1990.  The  uncontradicted            evidence  thus  indicates  that  the amendment  was  a  duly-            approved,  general  policy  change, designed  to  effect  the            nonpunitive  purpose  of   eliminating  unnecessary,   costly            procedures.    See  Alberico,  783 F.2d  at  1028  (rejecting                           ___  ________            argument  that  generally-applicable amendment  of regulation            affecting  plaintiff's  service  record constituted  bill  of                                         -11-                                          11            attainder, even though  amendment was "certainly inspired  by            his case").                                       HIV Policy                                      HIV Policy                                     __________                      Plaintiff's  next  argument is  that  his discharge            violated Defense Department policy.   There are two prongs to            plaintiff's argument.  First,  plaintiff quotes the following            policy  statement from  the  Defense Department  and the  Air            Force, regarding active duty  personnel infected with HIV, in                             ___________            an effort to prove that ANGR 39-10 conflicted with Department            policy:                       Individuals  with  serologic evidence  of                      HIV infection and who show no evidence of                      clinical illness or  other indication  of                      immunologic   or  neurologic   impairment                      related  to HIV  infection, shall  not be                                                  _____________                      separated   solely   on   the  basis   of                      _________________________________________                      serologic evidence of HIV infection.                        ____________________________________            (Emphasis  added.)   Plaintiff's attempt  to use  that policy            statement to  undermine  ANGR 39-10  is unavailing,  however,            because he was a reservist, not on active duty.                        There  is a provision regarding reservists with HIV            in each  of the  memoranda containing that  policy statement.            The Defense Department policy states that "the Secretaries of            the  Military Departments  may restrict  individuals [in  the            Reserves]  with  serologic  evidence  of   HIV  infection  to            nondeployable  units  or  positions  for  purposes  of  force            readiness."     Air  Force  policy,  in   turn,  states  that            reservists "shall be transferred to the Standby Reserve, only                                         -12-                                          12            if  they  cannot be  utilized in  the Selected  [i.e., Ready]                                                             ____            Reserve,"  and that  the decision  regarding fitness  for the            Selected  Reserve  must  take  into  account  that  "military            personnel [with HIV] shall  only be assigned to nondeployable            units  and  positions."   In  this  case, plaintiff  was  not            separated solely  because  of  his  HIV condition.    He  was            transferred to the Standby  Reserve and discharged from PRANG            because  he  tested  positive  for  HIV  and  there  were  no            compatible, nondeployable positions available.                      The second  prong of plaintiff's  argument is  that            the  Secretary   of  the  Air  Force   allegedly  abused  his            discretion   in   restricting    reservists   with   HIV   to            nondeployable  positions.     A  Defense  Department   policy            provided  the Secretary  with the  authority to  make such  a            restriction "for purposes of  force readiness."  According to            plaintiff, the restriction is groundless because persons with            HIV can lead normal lives.                        Our standard of review of decisions committed to an            agency's  discretion is  invariably  deferential.    See  New                                                                 ___  ___            England Legal  Found. v.  Massachusetts Port Auth.,  883 F.2d            _____________________     ________________________            157, 169 (1st  Cir. 1989).  And in the  context of a decision            such  as the  Secretary's, in which  "force readiness"  is at            issue, courts  must be  especially circumspect.   The Supreme            Court has stated that "it is difficult to conceive of an area            of  governmental  activity  in  which the  courts  have  less                                         -13-                                          13            competence."   Gilligan v. Morgan, 413 U.S. 1, 10 (1973); see                           ________    ______                         ___            also Chilcott, 747 F.2d at 32 ("Interference by the judiciary            ____ ________            with the administration of  the military would undermine this            nation's ability to maintain a disciplined and ready fighting            force.").                       The record  provides ample support for  our finding            that  the Secretary did not  abuse his discretion in adopting            the  policy  underlying  ANGR  39-10.   The  Air  Force Ready            Reserve (including  the National Guard) makes  demands of its            members  that civilians  might not  normally face,  and these            demands  bear on  "force  readiness."   The National  Guard's            "whole  reason for  being  is to  be  ready to  be  deployed,            generally outside of the  United States."  Doe, 800  F. Supp.                                                       ___            at 1045.  There is ample support for the finding that persons            with  HIV who are asymptomatic are  not deployable because of            their restricted capacity to be immunized, their inability to            donate  blood,  and  the  unpredictability of  the  onset  of            symptoms.  Id.   It follows that force readiness  is affected                       ___            when nondeployable  persons staff  deployable positions.   No            further criticism  of the  Secretary's decision  is warranted            under the circumstances.                                   Equal Protection                                   Equal Protection                                   ________________                      Plaintiff's next argument is that ANGR 39-10 on its            face  and as applied violated his  right to equal protection.            Plaintiff argues in his brief that policies of the Department                                         -14-                                          14            of Defense and Air Force draw  an invalid distinction between            reservists and active duty personnel by permitting the former            to be  discharged solely because  of their HIV  status, while            guaranteeing  to the latter the right not to be discharged on            the basis of HIV infection alone.                      The  district court  declined  to  reach a  similar            issue in its order because plaintiff did not adequately raise            it in  his complaint or at  trial.  See Doe, 800  F. Supp. at                                                ___ ___            1044  n.1.    Our review  of  the  record  substantiates that            finding.  While plaintiff flagged the  issue in his posttrial            brief  and in  his memorandum  supporting  his motion  for an            injunction,  his  complaint  alleged   that  he  suffered   a            violation of equal protection because of his HIV status,  not            because of his status as a reservist.                         Even if the issue were preserved, we would  find it            groundless.  The  policies and regulations  at issue in  this            case  do not mandate  that reservists be  separated solely on            the basis of HIV infection.  Rather, a reservist with HIV  is            transferred  to  the Standby  Reserve  only if  there  are no            nondeployable positions available.                        To the  extent plaintiff seeks appellate  review of            the equal  protection issue  alleged in his  complaint, i.e.,                                                                    ____            discrimination based on his HIV condition, we deem the matter            waived  because plaintiff has not argued it on appeal in more                                         -15-                                          15            than a perfunctory manner.  See Gamma Audio &  Video, Inc. v.                                        ___ __________________________            Ean-Chea, 11 F.3d 1106, 1113 (1st Cir. 1993).            ________                                     Due Process                                     Due Process                                     ___________                      Plaintiff's  argument on  appeal  relating  to  the            constitutional  right  to  due  process  is  also  deficient.            Although his brief  refers to  the right to  due process,  he            made  no explicit  argument that  the Due  Process  Clause by            itself required PRANG to  provide notice and a hearing.   The            essence  of  his  argument  on  appeal  is  captured  in  the            following quotation:   "Certainly, at a  minimum, due process            of  law, as guaranteed by the Fifth and Fourteenth Amendments            to  the United  States  Constitution, requires  that the  Air            Force  follow its  own regulations  in discharging  an airman            from the  Air Force,  providing the  procedural right  to the            affected person set forth by applicable law and regulations."            Br. for  Appellant, 18-19.   Plaintiff did not assert in  his            brief that he suffered a deprivation of any protected liberty            or  property  interest.    Moreover,  he  cited  no  statute,            regulation, rule, or other  basis for establishing a property            interest in  his  position in  the  Guard.   Accordingly,  we            conclude that plaintiff waived the issue.  Playboy Enters. v.                                                       _______________            Public  Serv. Comm'n,  906  F.2d  25,  40 (1st  Cir.),  cert.            ____________________                                    _____            denied, 498 U.S.  959 (1990) ("An appellant  waives any issue            ______            which  it does  not  adequately raise  in its  initial brief,            because `in  preparing briefs  and arguments, an  appellee is                                         -16-                                          16            entitled to rely on  the content of an appellant's  brief for            the  scope of the issues appealed.'" (quoting Pignons S.A. de                                                          _______________            Mecanique  v.  Polaroid  Corp.,  701  F.2d  1,  3  (1st  Cir.            _________      _______________            1983))).3                        Where the issue  is not one easily  resolved in the            appellant's  favor, full  briefing  is especially  important.            Puerto Rico law and  federal law are similar in  stating that            National Guard  members may  be discharged or  transferred in            accordance   with  regulations,  with   the  approval  of  an            appropriate authority.   Compare P.R.  Laws Ann.  tit. 25,                                        _______            2072  with  10  U.S.C.      269(e),  1001(b).    Courts  have                  ____            generally  held  that  there   is  no  property  interest  in            continuing    employment   in   the   military   under   such            circumstances.  See, e.g., Rich v. Secretary of the Army, 735                            ___  ____  ____    _____________________            F.2d  1220,  1226  (10th  Cir.   1984)  (enlistee  discharged            according   to  regulations   lacked  property   interest  in            remainder of enlistment term);  accord Guerra v. Scruggs, 942                                            ______ ______    _______                                            ____________________            3.  Plaintiff  stated  at  oral   argument  that  the  record            contained  evidence that  he  held a  property  right in  his            military position in the form of a "retention letter."  While            that letter, dated June 20, 1990, informed plaintiff  that he            had been selected "for  continued retention" in ANGUS through            1992, it also contained the following caveat:  "Selection for            continued  retention  .  .  . does  not  preclude  applicable            military authority from separating  you for other reasons [in            accordance  with] applicable ANG or USAF regulations . . . ."            We need  not decide whether plaintiff had a "legitimate claim            of  entitlement" to  continued  employment,  or  whether  the            letter's caveat and the existence of  ANGR 39-10 rendered any            putative interest  at most a "unilateral  expectation," Board                                                                    _____            of Regents  v.  Roth,  408  U.S.  564,  577  (1972),  because            __________      ____            plaintiff waived the issue.                                           -17-                                          17            F.2d 270, 278 (4th Cir. 1991); see also Beller v. Middendorf,                                           ___ ____ ______    __________            632  F.2d 788, 805 (9th Cir. 1980) (enlistee held no property            interest  in   remainder  of  enlistment   term  because   no            reasonable expectation of  continued employment existed  once            enlistee  was   found  to  be  within   regulatory  class  of            dischargeable persons),  cert. denied,  452 U.S.  905 (1981);                                     _____ ______            cf.  Navas v.  Gonzalez Vales,  752 F.2d  765, 768  (1st Cir.            ___  _____     ______________            1985)   (officer   lacks   property   interest   in  military            employment);  Fredericks v. Vartanian,  694 F.2d  891, 893-94                          __________    _________            (1st  Cir. 1982) (member of state Guard did not hold property            interest  in  his rank,  where state  law  did not  place any            relevant  restrictions on  commanding officer's  authority to            demote him).   Because of plaintiff's failure  to develop the            argument  on  appeal,  we  decline to  consider  whether  the            constitution required PRANG to provide notice and a hearing.                                        Entitlement to Medical Board Review                         Entitlement to Medical Board Review                         ___________________________________                      Finally,  plaintiff  assails  the district  court's            conclusion  that  he  was not  entitled  to  a medical  board            hearing  because he suffered "the sui generis situation of an                                              ___ _______            administrative discharge based upon  medical considerations."            Doe, 800  F. Supp. at 1048.   A medical board  is responsible            ___            for determining  an  individual's entitlement  to  disability            benefits.   Plaintiff argues that he has a right to a medical            board  review under  10 U.S.C.     1214-1215  because  he was                                         -18-                                          18            discharged as a  result of  his medical condition.   Under               1214,  "[n]o member  of the  armed forces  may be  retired or            separated  for physical  disability without  a full  and fair            hearing if he demands it."                       The problem  with plaintiff's  argument is that  he            produced no evidence which would have entitled him to medical            board  review.   It  is  undisputed  that  plaintiff  is  not            medically  disabled.   A  "physical disability"  must be  the            reason  for discharge  before a  board is  convened.   See 10                                                                   ___            U.S.C.   1214.                        Furthermore, even  if we  were to conclude  that an            HIV  infection is  a "physical  disability" because  it is  a            medical  condition  rendering plaintiff  unfit  for worldwide            duty, we would not  conclude that plaintiff is entitled  to a            medical  board hearing.   It is  a sufficient  bar to  such a            claim that  plaintiff  offered  no proof  that  he  would  be            entitled to  disability benefits.   See Candelaria  v. United                                                ___ __________     ______            States, 5 Cl.  Ct. 266,  273 (1984); see  also Abatemarco  v.            ______                               ___  ____ __________            United States, 226 Ct.  Cl. 708, 710-11 (1981).   A reservist            _____________            in  plaintiff's  position  with  more than  twenty  years  of            service  is entitled to disability benefits only if he or she            shows  that the  disability "result[ed]  from an  injury" and            "[wa]s  the proximate  result  of performing  active duty  or            inactive-duty  training."  10 U.S.C.    1204.   The record in                                         -19-                                          19            this case is devoid of proof that plaintiff acquired HIV as a            result of performing duties in the Guard.                                           III.                                         III.                                     JURISDICTION                                     JURISDICTION                                     ____________                      Before drawing this opinion  to a close, we address            a  jurisdictional issue.    Defendants Secretary  of the  Air            Force and Chief of the National Guard Bureau (hereinafter the            federal  defendants)  argue that  we  do  not have  appellate            jurisdiction because plaintiff's request for back  pay brings            this case within the Tucker Act.  See 32 U.S.C.    709 (Guard                                              ___            technicians are  federal employees).    Analyzing this  issue            requires  an   understanding  of   the  Tucker  Act   and  an            appreciation of the two types of claims at issue:   [1] the              1983 claims  for back pay  and injunctive relief  against the            Puerto Rico defendants  in their  official capacities  (e.g.,                                                                    ____            the Adjutant  General)  based on  plaintiff's discharge  from            PRANG; and [2]  the claim  for back pay  against the  federal            defendants based on the termination of plaintiff's technician            position.                        Under  the Tucker Act, 28 U.S.C.   1491, the United            States waived its sovereign  immunity from nontort claims for            money  damages and  specified  which courts  could hear  such            claims.    See United  States v.  Testan,  424 U.S.  392, 398                       ___ ______________     ______            (1976).   Claims against the United  States exceeding $10,000            ("Big" Tucker  Act claims), founded upon  the Constitution, a                                         -20-                                          20            federal  statute,  a  regulation,  or contract,  are  in  the            jurisdiction of the  Court of  Federal Claims.   28 U.S.C.               1491.   The district courts  and the Court  of Federal Claims            have concurrent jurisdiction over "Little" Tucker Act claims,            i.e.,  for  money  damages  up  to  $10,000.    28  U.S.C.               ____            1346(a)(2) (Little Tucker Act); Sibley v. Ball, 924  F.2d 25,                                            ______    ____            28-29  (1st Cir. 1991).  The Federal Circuit Court of Appeals            has exclusive appellate  jurisdiction over  appeals from  the            Court of  Federal Claims  and over  Little  Tucker Act  cases            unrelated  to federal taxes.  28 U.S.C.   1295; United States                                                            _____________            v. Hohri, 482 U.S. 64, 68,  72-73 (1987); Sibley, 924 F.2d at               _____                                  ______            29.                       In Sibley v.  Ball, 924 F.2d  at 29, we  considered                         ______     ____            whether we  had jurisdiction  over an action  brought against            the Secretary of the  Navy for back pay, where  the complaint            sought  back pay  "within the  jurisdiction" of  the district            court.  We held  that the case arose under the  Little Tucker            Act, even though  the plaintiff did not cite  that Act in his            jurisdictional statement.   Id.  Consequently,  we found that                                        ___            the Federal  Circuit  had exclusive  appellate  jurisdiction.            Id.  In this case, plaintiff cited only 28 U.S.C.   1331, the            ___            statute providing federal question jurisdiction, as the basis            for filing  his   1983 claims in the district court.  But see                                                                  ___ ___            Sibley,  924 F.2d  at 28 (Section  "1331 does not  by its own            ______            terms waive  sovereign immunity  and vest in  district courts                                         -21-                                          21            plenary  jurisdiction  over  all,  or  any,  suits  which--by            seeking  a  money judgment  .  .  .--are  in substance  suits            against the United States.").                      The  district  court clearly  had  federal question            jurisdiction over the Civil  Rights Act claims for injunctive            relief asserted  against the Puerto Rico  defendants based on            plaintiff's  discharge from  PRANG.4   28 U.S.C.     1331; 42            U.S.C.   1988.   Moreover, we are convinced that  the Federal            Circuit does not have exclusive appellate  jurisdiction here,            as it did in Sibley, 924 F.2d at 29, because plaintiff's back                         ______            pay  claim  here exceeds  the  jurisdictional  limit for  the            Little Tucker Act.  For the purposes of the  Tucker Act, "the            amount of a claim against  the United States for back  pay is            the total amount of back  pay the plaintiff stands ultimately            to recover  in the  suit and  is not the  amount of  back pay            accrued  at the time the claim is  filed."  Smith v. Orr, 855                                                        _____    ___            F.2d 1544, 1553 (Fed.  Cir. 1988) (citing cases).   At trial,            plaintiff did not waive  any claim against the United  States                                            ____________________            4.  Although the  parties have not  asked us  to examine  the            effect of  the Eleventh  Amendment in this  context, we  note            that  a district court is not divested of jurisdiction over a            case  involving  a request  for  reinstatement  and back  pay            simply because  the Eleventh Amendment precludes  an award of            back pay.   See Will v.  Michigan Dept. of  State Police, 491                        ___ ____     _______________________________            U.S. 58,  71 n.10  (1989); Barreto-Fred v.  Aponte-Roque, 916                                       ____________     ____________            F.2d 37, 39 (1st Cir. 1990); Melo v. Hafer, 912 F.2d 628, 635                                         ____    _____            (3d  Cir. 1990),  aff'd,  112 S.  Ct.  358 (1991);  see  also                              _____                             ___  ____            Echevarria-Gonzalez v. Gonzalez-Chapel, 849  F.2d 24, 32 (1st            ___________________    _______________            Cir.   1988)  (stating  that   reinstatement  is  prospective            relief).                                          -22-                                          22            for back pay in excess of $10,000.  The record indicates that            the amount of back  pay allegedly due plaintiff is  more than            $10,000.    Consequently,  we  have  jurisdiction  over   the            injunctive-relief  issues on  appeal  as to  the Puerto  Rico            defendants.                      But  we can  identify no  basis for  district court            jurisdiction  over the  back  pay claim  against the  federal            defendants.  Neither the  Little Tucker Act, nor 28  U.S.C.              1331  provides such  authority.   Accordingly, we  vacate the            district court's order  with respect  to the  back pay  claim            asserted against the federal defendants.                      We have authority to transfer to another court with            jurisdiction any  action over which we  lack jurisdiction, if            such a  transfer is in the interests of justice.  28 U.S.C.              1631.  Arguably, the Court of Federal Claims has jurisdiction            over plaintiff's  claim  for overdue  Guard technician's  pay            under the Tucker Act and  the Back Pay Act, 5 U.S.C.    5596.            In Gnagy v. United States, 634 F.2d 574, 580 (Ct. Cl.  1980),               _____    _____________            and  in  Christoffersen v.  United States,  230 Ct.  Cl. 998,                     ______________     _____________            1003-04 (1982), however, the  Court of Claims, predecessor to            the Court of Federal  Claims, held that the Back  Pay Act did            not  provide   a  basis  for  a   Guard  technician,  validly            discharged from his  or her unit, to  recover damages against            the United  States.   The court  in Gnagy, 634  F.2d at  579,                                                _____            stated:                                         -23-                                          23                      An  essential element  of  the  right  to                      recover under  the Back  Pay Act is  that                      the personnel action  which has  resulted                      in  loss  of   pay  be  "unjustified   or                      unwarranted."  This  element is absent in                      the  instant  case.    A  prerequisite to                      plaintiff's   former   employment  as   a                      civilian  technician   for  the  National                      Guard  was that  he  be a  member of  the                      National Guard.   When he was  discharged                      from  [his Guard  unit],  .  . .  section                      709(e)(1)  of  32 U.S.C.  (1976) required                      that  his civilian  technician employment                      be terminated.  Hence, the termination of                      this  employment  was not  unjustified or                      unwarranted.   Rather, it was mandated by                      federal statutory law.  The sum effect of                      this is  that the claim in  question must                      be dismissed.              Id. (footnotes omitted);  accord Christoffersen, 230  Ct. Cl.            ___                       ______ ______________            at  1001-04; see  also Christoffersen,  230 Ct.  Cl. at  1005                         ___  ____ ______________            (ruling  on  motion   for  reconsideration)  (panel   "denied            plaintiffs' claims  as not within its  jurisdiction").  Gnagy                                                                    _____            and Christoffersen effectively  removed such back pay  claims                ______________            from the jurisdiction  of the Court of Federal Claims because            the Tucker Act  invests that  court with the  power to  grant            relief  only  when a  substantive  right  to monetary  relief            exists.  See Testan, 424 U.S. at 398, 400; Eastport Steamship                     ___ ______                        __________________            Corp. v.  United  States, 372  F.2d  1002, 1007-08  (Ct.  Cl.            _____     ______________            1967).   We  can educe  from plaintiff's  arguments no  other            basis  for  federal  jurisdiction  over the  back  pay  claim            relating to  his civilian  technician job.   See  Martinez v.                                                         ___  ________            United  States, 26  Cl.  Ct. 1471,  1476 (1992)  (court lacks            ______________            jurisdiction over  due process  and  equal protection  claims                                         -24-                                          24            based on  42 U.S.C.    1983), aff'd, 11 F.3d  1069 (Fed. Cir.                                          _____            1993); Montoya v. United  States, 22 Cl. Ct. 568,  570 (1991)                   _______    ______________            (similar); Anderson v. United States, 22 Cl. Ct. 178, 179 n.2                       ________    _____________            (1990) ("While  this court  has jurisdiction in  military pay            cases   seeking  reinstatement,   back  pay   and  allowances            generally, under  28 U.S.C.    1491, it  has no  jurisdiction            over cases arising  under the Civil Rights Act."), aff'd, 937                                                               _____            F.2d 623 (Fed. Cir. 1991); Montalvo v. United States, 231 Ct.                                       ________    _____________            Cl. 980, 982-83 (1982)  (court lacks jurisdiction over claims            based  on  violations of  due process);  cf. Dehne  v. United                                                     ___ _____     ______            States,  970 F.2d 890, 892 (Fed. Cir. 1992) (Court of Federal            ______            Claims has jurisdiction over Guard member's claim for overdue            military pay, based on statutes stipulating military pay rate            and authorizing correction of military records).                      Because  the district  court lacked  subject matter            jurisdiction to  entertain  plaintiff's back  pay  claim,  we            vacate  that   aspect  of  the   district  court's   opinion.            Moreover,  because  the Court  of  Federal  Claims, the  only            tribunal arguably  possessed of jurisdiction over such claims            against the United  States, has expressly held that  it lacks            subject matter  jurisdiction where a civilian  technician has            been duly discharged from his state Guard unit, a transfer of            the claim  pursuant to 28 U.S.C.   1631 would be to no avail.            The claim  is therefore  dismissed for want  of jurisdiction.                                         -25-                                          25            In all other respects, we affirm  the district court decision            on the merits.                       It is so ordered.                      It is so ordered.                      _________________                                         -26-                                          26
