  United States Court of Appeals
                For the First Circuit
                     ____________________

                         No. 98-2053

                     EUGENE E. WIGGINTON,

                    Plaintiff, Appellant,

                              v.

               REGINALD A. CENTRACCHIO, ET AL.,

                    Defendants, Appellees.

                     ____________________


                            Before

                   Torruella, Chief Judge,

                  Cyr, Senior Circuit Judge,

             and Pollak,* Senior District Judge.

                    _____________________

         ORDER FOR CERTIFICATION OF CERTAIN QUESTIONS
               TO THE RHODE ISLAND SUPREME COURT

                   Entered: March 13, 2000


         Pursuant to Rule 6 of the Rules of the Supreme Court




*Of the Eastern District of Pennsylvania, sitting by
designation.
of Rhode Island, the United States Court of Appeals for the

First Circuit hereby certifies to the Supreme Court of Rhode

Island
certain questions of Rhode Island law which may be

determinative of a cause pending in the Court of Appeals and

as to which it appears to the Court of Appeals that there is

no controlling precedent in the decisions of the Supreme Court

of Rhode Island.   Concurrently with the entry of this

Certification Order, the Court of Appeals has issued an

Opinion in the pending litigation.   That Opinion describes the

history and current posture of the litigation, sets out the

views of the Court of Appeals on certain questions of federal

law which currently frame the litigation, and undertakes to

explain why an authoritative resolution by the Supreme Court

of Rhode Island of certain questions of Rhode Island law may

prove determinative.

         Since the Opinion of the Court of Appeals goes into

greater detail, both as to historical fact and as to law, than

the Supreme Court of Rhode Island may find it useful to

pursue, the Court of Appeals has prepared a summary statement

of (1) the facts giving rise to the pending litigation, (2)

the course taken by the litigation up to this time, and (3)

the questions of Rhode Island law on which the Court of

Appeals seeks advice from the Supreme Court of Rhode Island:

                              (1)

         Eugene E. Wigginton served in the United States
Marines    for three years, from 1967 to 1970, and was then

honorably discharged.    In 1979, he was commissioned as an

officer in the United States Army Reserve and, concomitantly,

as an officer in the United States Army National Guard and the

Rhode Island Army National Guard (“RIANG”) with the rank of

Second Lieutenant, assigned to a RIANG Military Police unit.

By 1996, Eugene Wigginton had risen to the rank of Major, was

serving as a RIANG Public Affairs Officer, and was performing

the duties of Education Officer for RIANG.



    In January of 1996, as Major Wigginton was nearing

completion of his twentieth year of aggregate (Marine and

RIANG) military service, he was advised that, in May of 1996,

a Selective Retention Board would be convened pursuant to

National Guard Regulation    635-102 (“Personnel Separations

OFFICERS AND WARRANT OFFICERS SELECTIVE RETENTION”).     The

principal stated purpose of National Guard Regulation (“NGR”)

635-102 is 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.” The Selective Retention Board considered ten

RIANG commissioned and warrant officers at its May 13, 1996

meeting.    Major Wigginton was one of four who were recommended
for non-retention.     Pursuant to the Board’s recommendation,

Brigadier General Reginald A. Centracchio, Adjutant General of

Rhode Island, wrote to Major Wigginton on May 14, advising him

that he was not to be retained and, accordingly, was to be

separated as of July 13, 1996.     In due course, Major Wigginton

was separated as of that date.



                                (2)

         In September of 1996, Major Wigginton initiated this

litigation.     Suit was brought in the Superior Court for

Providence County against General Centracchio and the State of

Rhode Island.     The complaint contained two counts, each of

which alleged that the conduct complained of had “deprived

plaintiff of his civil rights pursuant to 42 U.S.C. section

1983.”

         The first count alleged that Major Wigginton’s non-

retention was “in violation of [R.I. Gen. Laws §] 30-3-13.”

That statutory provision, which has been part of the military

code governing RIANG since 1956, states, inter alia, that

“[a]ll commissioned officers of the staff corps and

departments, hereafter appointed, . . . 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 legally convened for that purpose.”

It was further alleged that Major Wigginton had not been

retired by reason of resignation, disability, or dismissal for

cause.

          The second count alleged that the “criteria set

forth in [NGR] 635-102" governing the retention/non-retention

decision “were not followed” in Major Wigginton’s case; this

claim has not been pursued before the Court of Appeals.     The

second count also alleged that Major Wigginton had never “been

informed of the reasons why he was not selected for retention”

- a failure characterized as “depriv[ing] the plaintiff of due

process of law.”

    On the basis of the federal questions presented in Major

Wigginton’s complaint, the suit was removed by General

Centracchio   to the United States District Court for Rhode

Island.   After removal, General Centracchio moved to dismiss

on the ground that Major Wigginton’s suit – brought against a

superior officer and arising out of matters incident to

military service – was non-justiciable. The motion was

referred to a Magistrate Judge, who recommended dismissal.

But the District Court – disagreeing with the Magistrate Judge

on the issue of justiciability – denied the motion to dismiss.
Having concluded that Major Wigginton’s suit was judicially

cognizable, the District Court held a hearing and then

authorized discovery on the question whether, on the date

Major Wigginton was discharged from RIANG, he was an officer

of the RIANG “staff corps and departments” within the meaning

of R.I. Gen. Laws § 30-3-13 and, hence, within the protective

ambit of that statute insofar as it directs that such officers

“shall hold their positions until they have reached the age of

sixty (60) years.”   On the basis of the materials adduced by

the parties, the District Court found itself unable to

determine the meaning of “staff corps and departments.”     The

District Court went on to rule that -- given that Major

Wigginton as plaintiff had the burden of proof and had not

succeeded in establishing that he had been an officer of

whatever grouping was comprehended by the statutory phrase

“staff corps and departments” -- summary   judgment should be

entered on the first count in favor of the defendants.     On the

second count, which alleged a denial of due process in the

failure to inform Major Wigginton of the reasons for his non-

retention, the District Court also granted summary judgment in

favor of the defendants.

         From the District Court’s grant of summary judgment,

Major Wigginton appealed.
           In the opinion filed concurrently with this

Certification Order, the Court of Appeals has ruled as

follows:    First: The District Court had been correct in

determining that Major Wigginton’s suit was justiciable.

Second:    The District Court erred in granting summary judgment

in favor of defendants. The Court of Appeals determined that,

in order to present viable federal claims of denial of due

process of law under both the first count and the second count

of his complaint, Major Wigginton was required to establish,

as a predicate, an underlying property interest created by

state law of which he had been deprived.    In the context of

this litigation, that state-created property interest, if it

existed, had to be rooted in Major Wigginton’s claim, under

R.I. Gen. Laws § 30-3-13, that he was, at the time of his

discharge from RIANG, an officer of the “staff corps and

departments” within the meaning of the statute.    Until the

phrase “staff corps and departments” was judicially construed,

it could not be determined whether Major Wigginton did or did

not come within the protection of the statute.    The District

Court recognized the ambiguity of the statute but did not

resolve that ambiguity.    Since the District Court did not

assign any fixed meaning to the crucial statutory phrase,

ruling one way or another on summary judgment was premature.
                               (3)

    The Court of Appeals has examined R.I. Gen. Laws § 30-3-

13, together with other provisions of the statutory code

governing RIANG that contain the phrase “staff corps and

departments.”    These statutory texts do not appear to convey a

clear meaning.    No pertinent legislative history has come to

the attention of the Court of Appeals.    And there are no

reported judicial decisions – either in the courts of Rhode

Island or elsewhere – construing      R.I. Gen. Laws § 30-3-13

or any cognate statutory provision.    Under these

circumstances, in lieu of uninformed conjecture by a federal

court, the Court of Appeals is of the view that the proper

course is to seek an authoritative construction of “staff

corps and departments” as used in R.I. Gen. Laws § 30-3-13

from the tribunal most qualified to render it – the Supreme

Court of Rhode Island. Hence, this Certification Order.

    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 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 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.   If the Supreme Court of Rhode Island determines

that, by virtue of R.I. Gen. Laws § 30-3-13, Major Wigginton

was uncontingently entitled to continued status until age

sixty as a RIANG officer, that determination of Rhode Island

law would appear to satisfy the requirement of federal law

that a person asserting a right not to be discharged from a

public position without being afforded procedural due process

must establish “an enforceable expectation of continued public

employment.”   Bishop v. Wood, 426 U.S. 321, 345 (1976).

Assuming that the answers of the Rhode Island Supreme Court to

the certified questions persuade the Court of Appeals that

Major Wigginton did, at the time he was discharged, enjoy an

“enforceable expectation of continued public employment,” the
further questions to be addressed by the federal courts in

this litigation would be (1) whether the procedures

culminating in General Centracchio’s decision of non-retention

with respect to Major Wigginton satisfied due process, and/or

(2) whether the failure to inform Major Wigginton of the

reasons for his non-retention was compatible with due process.

    In conformity with the foregoing discussion, the Court of

Appeals requests that the Supreme Court of Rhode Island advise

the Court of Appeals of the answers to the following questions

of Rhode Island law:

          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?

                                 By Order:


______________________________
                                 Phoebe Morse, Clerk
                                 United States Court of
Appeals
Enter:
______________________________
Juan R. Torruella, Chief Judge
United States Court of Appeals for the First Circuit
