Hanson v. Wyatt

552 F.3d 1148, 2008 U.S. App. LEXIS 27554, 2008 WL 5549070

Opinions

HARTZ, Circuit Judge.

Colonel Eric A. Hanson, who had been removed from the Oklahoma Army National Guard, filed suit against Major General Harry M. Wyatt III in his official capacity as Adjutant General for the State of Oklahoma, seeking reinstatement to his former position plus back pay and retirement points. His claim arises from an alleged violation by a selective retention board (SRB) of a federal regulation governing its procedures. The SRB recommended that Col. Hanson not be retained as a Colonel. Col. Hanson appealed to Maj. Gen. Wyatt on the ground that the SRB had violated the regulation. After that appeal was denied, Col. Hanson sought relief from the Army Board for Correction of Military Records (ABCMR), which rejected his claim. He then filed this suit in the United States District Court for the Western District of Oklahoma.

Col. Hanson contends (1) that the SRB violated an Army National Guard regulation by reviewing his status while he was simultaneously sitting on another SRB and (2) that this violation infringed his right to constitutional due process. The district court decided that the SRB violated the regulation and granted Col. Hanson summary judgment, ordering his reinstatement with retirement points. Maj. Gen. Wyatt has appealed, contending, among other things, that “[t]he Military administrative remedies and appeal process was [Col. Hanson’s] exclusive remedy in this case.” Aplt. Br. at 9 (emphasis omitted) We reverse.

As we discuss below, claims analogous to Col. Hanson’s are permitted in federal court. The United States Supreme Court has recognized two “alternative remedies available to a servicemember demanding to be kept on the rolls.” Clinton v. Goldsmith, 526 U.S. 529, 537, 119 S.Ct. 1538, 143 L.Ed.2d 720 (1999). The servicemember can seek review of a decision by the ABCMR under the Administrative Procedure Act (APA), 5 U.S.C. § 557 et seq., or can sue the United States under the Tucker Act, 28 U.S.C. § 1491, or the Little Tucker Act, 28 U.S.C. § 1346(a)(2). See Clinton, 526 U.S. at 539-40, 119 S.Ct. 1538. We hold, however, that there was no proper basis for this suit for violation of the National Guard regulation. We need not decide whether Col. Hanson may have had some judicial remedy in another court (such as Oklahoma state court) or against another party (such as the United States or the Secretary of the Army). The district court issued its judgment without identifying a cause of action that would permit Col. Hanson to seek relief in feder al court against Maj. Gen. Wyatt for violation of the regulation, and Col. Hanson has not remedied that omission on appeal. We also hold that Col. Hanson has not stated a claim for denial of constitutional due process.

BACKGROUND

The National Guard is a state/federal hybrid. Our Constitution grants Congress authority

[t]o provide for organizing, arming, and disciplining the Militia, and for governing such Part of them as may be employed in the Service of the United States, reserving to the States respectively, the Appointment of the Officers, and the Authority of training the Militia according to the discipline prescribed by Congress.

U.S. Const, art. I, § 8, cl. 16. The National Guard is composed of those portions of state militias that are “federally recognized.” 32 U.S.C. § 101(4). The federal government recognizes a “unit or organization of the National Guard,” id. § 307(a)(1), and sets standards for recognition of individual officers, id. 307(a)(2), (3). Thus, members of the National Guard hold dual enlistments in both a state militia (a State national guard) and a federal force (the National Guard of the United States). See Perpich v. Dep’t of Def, 496 U.S. 334, 345, 110 S.Ct. 2418, 110 L.Ed.2d 312 (1990). “In the latter capacity they bec[o]me a part of the Enlisted Reserve Corps of the Army, but unless and until ordered to active duty in the Army, they retain[ ] their status as members of a separate State Guard unit.” Id.

Each state has an adjutant general, whose duties are set by state law. See 32 U.S.C. § 314(a). The Governor of Oklahoma is the Commander in Chief of the state’s military department, “with the Adjutant General as the executive and administrative head thereof.” Okla. Stat. Ann tit. 44, § 21; see id. § 26 (duties of adjutant general). The Oklahoma militia is composed of able-bodied citizens (and persons who have declared their intent to become citizens) between the ages of 17 and 70, and is divided into three classes: “The National Guard, the Oklahoma State Guard, and the Unorganized Militia.” Id. §41. An officer may be discharged by the Governor for unfitness upon the recommendation of a three-member efficiency board convened by the Governor. Id. § 44.

Col. Hanson joined the Oklahoma Army National Guard in 1980. As a colonel who had served more than 20 years, he was subject in 2003 to review by an SRB. The regulation governing SRBs is the Department of the Army’s National Guard Regulation (NGR) 635-102. See 10 U.S.C. § 14704(c) (authorizing such regulations). The goals of the review process are:

a. Ensuring 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.

b. Providing career incentive.

c. Ensuring an opportunity for advancement to the higher grades at the peak years of an officer’s effectiveness.

NGR 635-102(3). The SRB makes recommendations to the state adjutant general, who is empowered to overturn a nonretention recommendation. NGR 635-102(5)(j)(l)(b). When a nonselected officer loses federal recognition, the officer can no longer serve in the Army National Guard but is transferred to the United States Army Reserve. See 10 U.S.C. § 12213(b); NGR 635-102(7)(a).

“[T]o be reinstated as an officer of the [Army] National Guard, an officer must pursue remedies both within [the Army National Guard of the United States] and within the [Army] National Guard of his state.” Penagaricano v. Llenza, 747 F.2d 55, 57 (1st Cir.1984), overruled in pari on other grounds by Wright v. Park, 5 F.3d 586, 590-91 (1st Cir.1993). For the federal component of relief, the officer may seek review by a civilian Board for Correction of Military Records (BCMR) established for one of the Services. See 10 U.S.C. § 1552. As stated in 32 C.F.R. § 581.3(a), “[T]he policies and procedures for correction of military records by the Secretary of the Army, acting through the Army Board for Correction of Military Records (ABCMR)” are set forth in 32 C.F.R. § 581.3. The language “correction of military records” may be somewhat misleading, because the authority of BCMRs goes well beyond correcting paperwork. The ABCMR “can reinstate [the officer] in a comparable active federal reserve status, restore his pay and order compensatory back pay.” Penagaricano, 747 F.2d at 57; see 10 U.S.C. § 1552(c); Christoffersen v. Washington State Air Nat'l Guard, 855 F.2d 1437, 1442 (9th Cir.1988); Thornton v. Coffey, 618 F.2d 686, 692-93 (10th Cir.1980). It cannot, however, “direct his reinstatement in the National Guard of the state.” Penagaricano, 747 F.2d at 57. That would be a matter for the state adjutant general.

In April 2003 an SRB recommended Col. Hanson for nonretention. Relying on introductory language in NGR 635-102 stating that it “does not apply to ... voting members of current selection boards,” he appealed to Adjutant General Wyatt on the ground that he had been serving on an SRB when he was recommended for non-retention. Maj. Gen. Wyatt denied the appeal. Col. Hanson sought relief from the ABCMR, but the decision of the Board denied relief because “[t]he evidence presented d[id] not demonstrate the existence of a probable error or injustice.” J.App. at 23. The Board’s decision noted the following regarding the consequences of the nonselection decision:

The [adjutant general] ... advised that the non-selection action taken by the SRB only withdrew [Col. Hanson’s] State appointment in the [Oklahoma Army National Guard]. [Col. Hanson] still retains his Federal rank and status and may, at his request, transfer to the Retired Reserve. However, if [Col. Hanson] does not select that option, his orders will indicate transfer to Army Reserve Personnel Center with assignment to the United States Army Control Group (Reinforcement).

J.App. at 21. Col. Hanson then filed the present suit. The district court held that the SRB’s action violated NGR 635-102 and that the nonretention decision was therefore invalid; it ordered Col. Hanson’s reinstatement with retirement points.

DISCUSSION

Col. Hanson contends that there was no bar to the district court’s granting relief based on the violation of NGR 635-102. Maj. Gen. Wyatt counters, however, that Col. Hanson’s sole avenue of relief is through the military’s internal administrative and appellate procedures. Maj. Gen. Wyatt’s brief focuses on court decisions denying various claims implicating military affairs. In these cases the plaintiff invoked a statute or a constitutional doctrine that would appear on its face to encompass the plaintiffs claim, but the court carved out an exception for classes of claims that would create improper interference with the administration of the armed forces. For example, although the Federal Tort Claims Act (FTCA) contains no language barring suits by servicemembers against the government, such suits have been severely limited. See, e.g., United States v. Shearer, 473 U.S. 52, 58, 105 S.Ct. 3039, 87 L.Ed.2d 38 (1985) (rejecting FTCA claim by estate of soldier murdered by a fellow soldier while off-base and off-duty); Feres v. United States, 340 U.S. 135, 71 S.Ct. , 95 L.Ed. 152 (1950) (leading case). Likewise, the doctrine established in Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388, 91 S.Ct. 1999, 29 L.Ed.2d 619 (1971), which permits suits against federal officials for constitutional violations, does not encompass suits involving “injuries that arise out of or are in the course of activity incident to military service.” United States v. Stanley, 483 U.S. 669, 684, 107 S.Ct. 3054, 97 L.Ed.2d 550 (1987). And this court has rejected a plaintiffs claims against the Oklahoma National Guard and its Adjutant General under the Age Discrimination in Employment Act, 29 U.S.C. § 621 et seq. (ADEA), and under Title YII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. See Costner v. Okla. Army Nat’l Guard, 833 F.2d 905, 907 (10th Cir.1987).

Maj. Gen. Wyatt infers from these opinions a general prohibition on suits regarding “intraserviee military personnel dis-putéis].” Aplt. Br. at 6. Although we agree that these decisions certainly caution courts about being too eager to uphold a claim impacting the military, we cannot accept Maj. Gen. Wyatt’s broad generalization. In particular, it is inconsistent with the Supreme Court’s unanimous opinion in Clinton, 526 U.S. 529, 119 S.Ct. 1538, 143 L.Ed.2d 720, which endorsed certain types of judicial review of claims like Col. Hanson’s. The issue in the case was the authority of the Court of Appeal for the Armed Forces (CAAF) to issue an injunction prohibiting the removal of a court-martialed servicemember from the Air Force rolls. The Court held that the CAAF, whose jurisdiction is limited to review of court-martial cases, see id. at 535, 119 S.Ct. 1538, lacked jurisdiction to issue the injunction because the injunction was not in aid of its jurisdiction, see id. at 535-37, 119 S.Ct. 1538. In addition, it held that even if the CAAF had jurisdiction, the injunction was impermissible because the servicemember had adequate remedies at law. The Court noted that the service-member could seek relief from the Air Force Board of Correction for Military Records — the Air Force analog to the ABCMR, which denied relief to Col. Hanson. It then observed that judicial review could also be available:

Respondent may also have recourse to the federal trial courts. We have previously held, for example, that “[BCMR] decisions are subject to judicial review [by federal courts] and can be set aside if they are arbitrary, capricious, or not based on substantial evidence.” Chap-pell v. Wallace, 462 U.S. 296, 303, 103 S.Ct. 2362, 76 L.Ed.2d 586 (1983). A servicemember claiming something other than monetary relief may challenge a BCMR’s decision to sustain a decision to drop him from the rolls (or otherwise dismissing him) as final agency action under the Administrative Procedure Act (APA), 5 U.S.C. § 551 et seq.; see § § 704, 706. For examples of such challenges entertained in the district courts or courts of appeals, see Roelofs v. Secretary of Air Force, 628 F.2d 594, 599-601 (C.A.D.C.1980) (proceeding in District Court under APA raising due process challenge to administrative discharge based on conviction of civilian offence); Walker v. Shannon, 848 F.Supp. 250, 251, 254-255 (D.D.C 1994) (suit under APA for review of Army BCMR decision upholding involuntary separation). In the instances in which a claim for monetary relief may be framed, a servicemember may enter the Court of Federal Claims with a challenge to dropping from the rolls (or other discharge) under the Tucker Act, 28 U.S.C. § 1491. See, e.g., Doe v. United States, 132 F.3d 1430, 1433-1434 (C.A.Fed.1997) (suit for backpay and correction of military records following administrative discharge); Mitchell v. United States, 930 F.2d 893, 896-897 (C.A.Fed.1991) (suit for backpay, reinstatement, and correction of records). Or he may enter a district court under the “Little Tucker Act,” 28 U.S.C. § 1346(a)(2). See, e.g., Thomas v. Cheney, 925 F.2d 1407, 1411, 1416 (C.A.Fed.1991) (reviewing challenge to action to drop plaintiff from the rolls); Sibley v. Ball, 924 F.2d 25, 29 (C.A.1 1991) (transferring to Federal Circuit case for back-pay because within purview of “Little Tucker Act”).

Id. at 539-40, 119 S.Ct. 1538 (footnotes omitted). It would certainly appear that a claim quite like Col. Hanson’s could be brought by, say, an Army officer through one of the Tucker Acts or through APA review of an ABCMR decision.

We note, by the way, that, contrary to the apparent view of the concurrence, a suit under the Tucker Act directly challenges the military discharge order; it is not simply judicial review of a BCMR decision. In Clinton the Supreme Court stated that “a servicemember may enter the Court of Federal Claims with a challenge to dropping from the rolls (or other discharge) under the Tucker Act, 28 U.S.C. § 1491. See, e.g., Doe v. United States, 132 F.3d 1430, 1433-34 [Fed. Cir.1997].” 526 U.S. at 539, 119 S.Ct. 1538 (footnote omitted). In the case cited with approval, Major Doe had been discharged because of alleged sexual molestation of his daughter. He unsuccessfully sought relief through military channels up to the Air Force Board for Correction of Military Records (AFBCMR). He did not seek relief from the Board’s action through the APA. Rather, he sued the United States under the Tucker Act. (Suits under the Tucker Act must be brought against the United States, so it is obvious why Doe did not name his commanding officer as a defendant; but the purpose and result of the suit are to countermand the dismissal order by the military command.) The Federal Circuit, after reviewing the evidence presented to the military Board of Inquiry, concluded that “the decision to discharge [Doe] is not supported by substantial evidence.” Id. That review included no mention of the proceedings before the AFBCMR. See id. at 1434-37. The appellate court then “remanded [the case] to the [court of federal claims] to fashion an appropriate remedy, including both back pay and correction of records, such as to restore Major Doe to the position he would have been in but for the wrongful discharge.” Id. at 1437 (emphasis added).

Nevertheless, we agree with Maj. Gen. Wyatt that the district court had no basis for granting the relief it did. Indeed, his argument is, at least in one sense, more powerful than that which prevailed in the cases he relies on. In those cases the plaintiff brought a recognized cause of action — such as under the FTCA, the Bivens doctrine, the ADEA, or Title VII — that on its face applied to the plaintiffs claim, but the court carved out an exception to the cause of action for military matters. Here, in contrast, neither Col. Hanson nor the district court invoked a recognized cause of action (or argued for creation of a novel one) that on its face could support Col. Hanson’s claim. (Of course, if such a cause of action had been identified, it would then be necessary to determine whether — for reasons such as those set forth in Shearer, Stanley, and Costner — Col. Hanson’s claim should nevertheless be barred from proceeding. This opinion does not challenge the holdings in those cases.) We proceed to address the various possibilities.

To begin with, it is clear that Col. Hanson has not sought relief under either of the Tucker Acts. Claims under the Tucker Act, 28 U.S.C. § 1491, and the Little Tucker Act, id. § 1346(a)(2), must be brought against the United States. But Col. Hanson’s complaint does not name the United States as a defendant or cite either Tucker Act. Nor was the United States served as required by Fed.R.Civ.P. 4(i).

With respect to the APA, the situation is a bit more complex. Col. Hanson’s complaint invokes the APA as a basis for jurisdiction, asserts that he exhausted his administrative remedies, and seeks a “declaration that the ABCMR’s decision was arbitrary, capricious, clearly erroneous, and not in accordance with law.” J.App. at 14. Nevertheless, the present suit is not a proper one under the APA. Unless a statute specifically authorizes judicial review of agency action (which is not the case here), judicial review is limited to “final agency action,” 5 U.S.C. § 704. An “agency” must be an “authority of the Government of the United States.” Id. § 551(1). Col. Hanson’s suit, however, is not brought against a final action by a federal agency. Rather, as we shall see, it is brought against Maj. Gen. Wyatt in his state capacity.

One possible final agency action against Col. Hanson was the decision of the ABCMR rejecting his challenge to the SRB’s recommendation. As the Supreme Court stated in Clinton, “A servicemember claiming something other than monetary relief may challenge a BCMR’s decision to sustain a decision to drop him from the rolls (or otherwise dismissing him) as final agency action under the [APA].” 526 U.S. at 539, 119 S.Ct. 1538. Col. Hanson’s complaint actually seeks “a declaration that the ABCMR’s decision denying relief to Hanson was arbitrary, capricious, clearly erroneous and not in accordance with law”; but review of an ABCMR decision under the APA should proceed as a suit against the Secretary of the Army. For “examples of such challenges,” the Clinton Court cited opinions by a circuit court, Roelofs, 628 F.2d at 599-600, and a district court, Walker, 848 F.Supp. at 251, 254-55, in both of which the defendant was the Secretary of a branch of the armed forces. The D.C. Circuit wrote in Roelofs that the APA applies to the Air Force BMCR “through the Secretary of the Air Force.” 628 F.2d at 599; see 32 C.F.R § 581.3(a); Banks v. Commander of Detachment 1, 797 F.Supp. 984, 987 (M.D.Ga.1992) (APA challenge to ABCMR decision should be through action against Secretary of the Army). Not only is the Secretary of the Army not a defendant in this case, but the United States was not even served, as required for any action against an agency or officer of the United States. See Fed.R.Civ.P. 4(i)(2). Such service is necessary so that the United States Attorney General can appear in the litigation to represent any federal interest at stake.

Perhaps one could also characterize as a final agency action the decision by Adjutant General Wyatt to accept the SRB recommendation. But the challenge to Maj. Gen. Wyatt’s decision is not with respect to his federal capacity. Several considerations lead us to this conclusion. First, we can presume that Col. Hanson’s highly competent counsel (now a district judge in this circuit) would have recognized that it was quite doubtful that he could have obtained an enforceable judgment against the adjutant general in his federal capacity without serving the United States. The failure to serve the United States was obviously because the complaint was not intended to seek relief from the United States or any federal agency.

Second, to the extent that Maj. Gen. Wyatt was acting in his federal capacity in deciding that the SRB had not violated NGR 635-102, that issue was reviewed by his superior in the command structure— the Secretary of the Army, acting through the ABCMR. See 32 C.F.R. § 581.3(a)(1) (“This section prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the [ABCMR].”); cf. Clinton, 526 U.S. at 539, 119 S.Ct. 1538 (BCMR decision is “final agency action”). Even though an agency decision can sometimes be final for purposes of the APA despite the failure to exhaust administrative remedies, see Darby v. Cisneros, 509 U.S. 137, 113 S.Ct. 2539, 125 L.Ed.2d 113 (1993), once an otherwise final agency action (as Maj. Gen. Wyatt’s decision may have been) is reviewed by a superior in the agency hierarchy, the standard practice (and our research has uncovered no counterexample) is that the APA claim is brought against the superior. For example, in Bowman v. Astrue, 511 F.3d 1270 (10th Cir.2008), cited by the concurrence at page 1173, the suit was not against the administrative law judge but against the Social Security Commissioner. We can assume that Col. Hanson would have followed this standard practice if his suit had been intended as one against Maj. Gen. Wyatt in his federal capacity.

Third, there was a quite sensible reason to sue Maj. Gen. Wyatt in his state capacity. In contrast to his authority in the federal hierarchy, Maj. Gen. Wyatt in his state capacity, as “executive and administrative head” of Oklahoma’s military department, Okla. Stat. Ann. tit. 44, § 21, had the last word. Only the adjutant general could reinstate Col. Hanson in the Oklahoma National Guard. See Penagari-cano, 747 F.2d at 57.¹

We are not saying that Maj. Gen. Wyatt acted solely as a state, not federal, authority in adopting the SRB’s recommendation not to retain Col. Hanson. All we are saying is that the above considerations lead us to conclude that Col. Hanson is suing Maj. Gen. Wyatt only in his state capacity.²

A suit against Maj. Gen. Wyatt in his state capacity, however, cannot be brought under the APA. Maj. Gen. Wyatt, acting in his state capacity, is not an “authority of the Government of the United States,” 5 U.S.C. § 551(1), and hence not an agency subject to suit under the APA. See Gilliam v. Miller, 973 F.2d 760, 763-64 (9th Cir.1992) (adjutant general did not act in capacity of federal agency when removing plaintiffs from state national guard, so they were not entitled to review under APA). Compare Knutson v. Wisconsin Air Nat'l Guard, 995 F.2d 765, 767-68 (7th Cir.1993) (“focus[ing] on the nature of [the] action and functional capacity of the actor,” court holds that “state officers exercising their state authority to effectuate the termination of state militia personnel” acted under color of state law and were therefore subject to suit under 42 U.S.C. § 1983) with Lipscomb v. FLRA 333 F.3d 611, 618 (5th Cir.2003) (adjudant general was federal agency with respect to his authority over federal employees).

The remaining statutes cited in Col. Hanson’s complaint are (1) the Declaratory Judgment Act, 28 U.S.C. § 2201, 2202, and (2) 28 U.S.C. § 1381. But “[t]he [Declaratory Judgment] Act does not create substantive rights.” Farmers Alliance Mut. Ins. Co. v. Jones, 570 F.2d 1384, 1385 (10th Cir.1978). Nor does § 1331. See W. Shoshone Bus. Council v. Babbitt, 1 F.3d 1052, 1058 (10th Cir.1993) (to bring case under § 1331, plaintiff must have cause of action arising from a federal right).

To the extent that Col. Hanson may be suggesting that the alleged violation of NGR 635-102 in itself gives him a cause of action, this theory also fails. The Supreme Court has recently clarified that it will rarely recognize an implied private cause of action arising from a mere regulation. In Alexander v. Sandoval, 532 U.S. 275, 121 S.Ct. 1511, 149 L.Ed.2d 517 (2001), Sandoval had brought a class action that resulted in an injunction against Alabama’s Department of Public Safety for administering driver’s license examinations only in English, in violation of a Department of Justice regulation authorized by § 602 of Title VI of the Civil Rights Act of 1964. The Supreme Court had previously recognized an implied private cause of action under § 601 of the Act, but the regulation at issue prohibited conduct permissible under § 601, so the private right of action under § 601 was not available. See id. at 285, 121 S.Ct. 1511. The Court held that Congress had not created a private right of action to enforce the regulation. The statute authorizing the regulation, § 602, contained no “rights-creating” language. Id. at 288, 121 S.Ct. 1511 (internal quotation marks omitted). And it did not focus on the individuals protected. See id. at 289, 121 S.Ct. 1511. “Nor [did] the methods that § 602 [provided] for enforcing its authorized regulations manifest an intent to create a private remedy.” Id. On the contrary, “[t]he express provision of one method of enforcing a substantive rule suggests that Congress intended to preclude others.” Id. at 290, 121 S.Ct. 1511. Moreover, that the regulation itself contained rights-creating language could “not create a right that Congress has not.” Id. at 291, 121 S.Ct. 1511; see 13 Charles Alan Wright, Arthur R. Miller, & Edward H. Cooper, Federal Practice and Procedure, § 3531.6, at 1173 (2d ed. Supp.2007) (suggesting that Alexander can be justified on the ground that private remedies for wrongs defined solely by regulation should be recognized only when Congress has clearly intended that result).

As we now show, Alexander does not permit an implied right of action under NGR 635-102. Mr. Hanson has not asserted the statutory basis for that regulation, but it appears to be 10 U.S.C. § 14704, which states:

(a) Boards to recommend officers for removal from reserve active-status list. — Whenever the Secretary of the military department concerned determines that there are in any reserve component!³] under the jurisdiction of the Secretary too many officers in any grade and competitive category who have at least 30 years of service computed under section 14706 of this title or at least 20 years of service computed under section 12732 of this title, the Secretary may convene a selection board under section 14101(b) of this title to consider all officers on that list who are in that grade and competitive category, and who have that amount of service, for the purpose of recommending officers by name for removal from the reserve active-status list, in the number specified by the Sec retary by each grade and competitive category.

(b) Separation of officers selected.—In the case of an officer recommended for separation in the report of a board under subsection (a), the Secretary may separate the officer in accordance with section 14514 of this title.

(c) Regulations.—The Secretary of the military department concerned shall prescribe regulations for the administration of this section.

The statute does not contain rights-creating language. The focus of § 14704 is the authority of the Secretary, not the rights of officers subject to nonretention. Indeed, the statute makes no mention of any right or benefit of officers being considered, except that those not selected for retention may be separated under 10 U.S.C. § 14514 (which addresses transfer to the Retired Reserve). Although the statute contains no provision for enforcement of the regulations promulgated under its authority, we can presume that Congress was aware of potential remedies mentioned in Clinton—-namely, review by a BMCR, possibly followed by court review under the APA, and review under the Tucker Act and Little Tucker Act, see 526 U.S. at 538-40, 119 S.Ct. 1538. In light of those remedies, there is no reason to posit “a congressional intent to create privately enforceable rights through [§ 14704] itself.” Alexander, 532 U.S. at 290, 121 S.Ct. 1511. As in Alexander, there is “no evidence anywhere in the text to suggest that Congress intended to create a private right to enforce regulations promulgated under [§ 1'4704].” Id. at 291, 121 S.Ct. 1511.

Finally, we note that Col. Hanson alleges a violation of constitutional due process, and he may be contending that the district court could exercise authority to enjoin conduct that infringes constitutional rights. But we need not address the scope, or even existence, of such authority, because Col. Hanson’s due-process claim is flawed on its face. The Fifth and Fourteenth Amendments to our Constitution forbid the deprivation of “life, liberty, or property, without due process of law.” Col. Hanson, however, cannot point to any protected liberty or property interest of which he has been deprived. He does not claim a property interest in military office. See Christoffersen, 855 F.2d at 1443 (plaintiff had “no constitutionally protected property interest in continued employment with [state guard]”); Penagaricano, 747 F.2d at 62 (same); McFarlane v. Grasso, 696 F.2d 217, 222 (2d Cir.1982) (same). The basis for his due-process claim is simply the failure of the SRB to comply with NGR 635-102 by conducting a review of his status. But “an entitlement to nothing but procedure cannot be the basis for a liberty or property interest” protected by the Due Process Clauses. Stein v. Disciplinary Bd., 520 F.3d 1183, 1192 (10th Cir.2008) (brackets and internal quotation marks omitted).

RESPONSE TO CONCURRENCE/JUS-TICIABILITY

Not long ago, the Supreme Court approvingly quoted the proposition that “ ‘[j]urisdiction ... is a word of many, too many meanings.’ ” Steel Co. v. Citizens for a Better Env’t, 523 U.S. 83, 90, 118 S.Ct. 1003, 140 L.Ed.2d 210 (1998), quoting United States v. Vanness, 85 F.3d 661, 663 n. 2 (D.C.Cir.1996). Perhaps the same can be said of the word justiciable. Maj. Gen. Wyatt terms his argument against recognition of Col. Hanson’s claim as a matter of justiciability. The position of the concurrence is that Col. Hanson’s claim raises a political question, a matter committed by the Constitution to the political branches of government. We respectfully disagree. First, we question whether Maj. Gen. Wyatt’s argument is properly termed as one addressing justiciability in the sense that the term is used in the context of the political-question doctrine. Second, to the extent that the argument can be considered to be a justiciability argument, it is a peculiar one because justiciability is determined simply by examining whether Congress has authorized the cause of action— the very analysis we have undertaken. Third, this opinion’s approach is proper because the Supreme Court has indicated that a court has some discretion in deciding that a claim fails to state a cause of action before (and without) deciding whether the claim is nonjusticiable as a political question, even though jurisdictional issues must be decided before addressing the merits.

To understand the meaning of the term justiciable in the context of the political-question doctrine, we begin with the leading case on that doctrine, Baker v. Carr, 369 U.S. 186, 82 S.Ct. 691, 7 L.Ed.2d 663 (1962), which held that courts could consider an equal-protection challenge to the apportionment of state legislatures. At the outset, we note that the Court distinguished jurisdiction from justiciability:

The District Court was uncertain whether our cases withholding federal judicial relief rested upon a lack of federal jurisdiction or upon the inappropriateness of the subject matter for judicial consideration — what we have designated “non-justiciability.” The distinction between the two grounds is significant. In the instance of nonjusticiability, consideration of the cause is not wholly and immediately foreclosed; rather, the Court’s inquiry necessarily proceeds to the point of deciding whether the duty asserted can be judicially identified and its breach judicially determined, and whether protection for the right asserted can be judicially molded. In the instance of lack of jurisdiction the cause either does not “arise under” the Federal Constitution, laws or treaties (or fall within one of the other enumerated categories of Art. Ill, § 2), or is not a “case or controversy” within the meaning of that section; or the cause is not one described by any jurisdictional statute. Our conclusion, see pp. 208-237, infra, that this cause presents no nonjusticia-ble “political question” settles the only possible doubt that it is a case or controversy. Under the present heading of “Jurisdiction of the Subject Matter” we hold only that the matter set forth in the complaint does arise under the Constitution and is within 28 U.S.C. § 1343.

Id. at 198-99, 82 S.Ct. 691. As suggested in this passage, jurisdiction and justiciability both arise out of Article III. See Daim-lerChrysler Corp. v. Cuno, 547 U.S. 332, 352, 126 S.Ct. 1854, 164 L.Ed.2d 589 (2006). But, as we shall see, the Supreme Court does not treat them identically for all purposes.

Second, Baker sets forth the criteria for determining whether a case presents a political question. The Court observed:

Prominent on the surface of any case held to involve a political question is found [1] a textually demonstrable constitutional commitment of the issue to a coordinate political department; or [2] a lack of judicially discoverable and manageable standards for resolving it; or [3] the impossibility of deciding without an initial policy determination of a kind clearly for nonjudicial discretion; or [4] the impossibility of a court’s undertaking independent resolution without expressing lack of the respect due coordinate branches of government; or [5] an unusual need for unquestioning adherence to a political decision already made; or [6] the potentiality of embarrassment from multifarious pronouncements by various departments on one question.

Baker, 369 U.S. at 217, 82 S.Ct. 691.

The concurrence relies on the first ground for deciding that an issue is a political question — “a textually demonstrable constitutional commitment of the issue to a coordinate political department.” Id. But the Supreme Court has never suggested that all matters military — or even military personnel matters, the subject of this case — are committed to the political branches of government to the exclusion of the judicial branch. As we shall see, at most it has said that courts lack power to take action that amounts to running the military and has adopted in essence a plain-statement rule, at least in some circumstances, that precludes judicial review of military matters without clear authority from Congress. The Supreme Court decisions on tort claims involving military personnel raised under the FTCA or as a Bivens action make no mention of the political-question doctrine nor use the terms justiciability or nonjusticiable. See, e.g., Stanley, 483 U.S. 669, 107 S.Ct. 3054, 97 L.Ed.2d 550; Chappell v. Wallace, 462 U.S. 296, 103 S.Ct. 2362, 76 L.Ed.2d 586 (1983). (Nor is there any use of any derivative of the word justiciable in our decision in Costner, 833 F.2d 905, which barred claims by a National Guardsman under the ADEA and Title VII.) On the contrary, they make clear that Congress could have authorized the lawsuits that the Court dismissed. In a military case under the FTCA, United States v. Johnson, 481 U.S. 681, 686, 107 S.Ct. 2063, 95 L.Ed.2d 648 (1987), the Court wrote: “[A]s the Court noted in Feres [v. United States, 340 U.S. 135, 71 S.Ct. 153, 95 L.Ed. 152 (1950)], Congress ‘possesses a ready remedy’ to alter a misinterpretation of its intent. Id. at 138, 71 S.Ct. 153.” See also id. at 692, 107 S.Ct. 2063 (Scalia, J., dissenting) (stating, contrary to Feres, that Congress had not exempted servicemember claims from the FTCA). It is apparent that the Court was treating the issue before it as one of legislative intent, not constitutional limitation; the Court was simply unwilling to read the broad language of the FTCA to encompass the plaintiffs claim (thereby adopting the equivalent of a plain-statement rule). And in the most recent Bivens case in this context, the Court said that “congressionally uninvited intrusion into military affairs by the judiciary is inappropriate,” Stanley, 483 U.S. at 683, 107 S.Ct. 3054 (emphasis added), again indicating that granting a cause of action for suits arising from military matters is not barred by the Constitution (as it would be if such matters were committed to the political branches for decision), but is a matter for Congress to decide. This is not to say that Stanley, Chappell, and similar Supreme Court decisions are irrelevant to a suit like Col. Hanson’s. If he had pointed to a cause of action that on its face encompassed his claim, we would need to decide whether considerations that informed those decisions would also bar this claim. But we need not reach that issue.

The one Supreme Court decision cited by the concurrence that does address the political-question doctrine in the military context is readily distinguishable from our case. In Gilligan v. Morgan, 413 U.S. 1, 93 S.Ct. 2440, 37 L.Ed.2d 407 (1973), Kent State University students sought declaratory and injunctive relief to prevent civil-rights violations by the Ohio National Guard like those that had allegedly occurred on campus in 1970. In holding the ease to be nonjusticiable, the Supreme Court emphasized the extraordinary scope of the requested relief:

[T]his is not a case in which damages are sought for injuries sustained during the tragic occurrence at Kent State. Nor is it an action seeking a restraining order against some specified and imminently threatened unlawful action. Rather, it is a broad call on judicial power to assume continuing regulatory jurisdiction over the activities of the Ohio National Guard.

Id. at 5, 93 S.Ct. 2440 (emphasis added). The opinion’s next paragraph described that “broad call”:

Respondents continue to seek for the benefit of all Kent State students a judicial evaluation of the appropriateness of the “training, weaponry and orders” of the Ohio National Guard. They further demand ... that the District Court establish standards for the training, kind of weapons and scope and kind of orders to control the actions of the National Guard. Respondents contend that thereafter the District Court must assume and exercise a continuing judicial surveillance over the Guard to assure compliance with whatever training and operations procedures may be approved by that court.

Id. at 5-6, 93 S.Ct. 2440. The Court found the claim nonjusticiable because of a combination of several factors: “[t]he advisory nature of the judicial declaration sought,” “the nature of the questions to be resolved [being] committed expressly to the political branches of government,” “the uncertainty as to whether a live controversy still exists,” and “the infirmity of the posture of respondents as to standing.” Id. at 10, 93 S.Ct. 2440. Notably, it did not suggest that these factors would be present in all disputes involving military affairs:

It should be clear that we neither hold nor imply that the conduct of the National Guard is always beyond judicial review or that there may not be accountability in a judicial forum for violations of law or for specific unlawful conduct by military personnel, whether by way of damages or injunctive relief. We hold only that no such questions are presented in this case.

Id. at 11-12, 93 S.Ct. 2440 (emphasis added). (It is perhaps worth noting that the Supreme Court soon thereafter recognized a civil suit for damages arising out of the Kent State tragedy. See Scheuer v. Rhodes, 416 U.S. 232, 249, 94 S.Ct. 1683, 40 L.Ed.2d 90 (1974)). Gilligan does not support the position that all cases involving military personnel decisions are non-justiciable. Judicial resolution of a single personnel decision by interpreting a promulgated regulation is a far cry from a court’s “establish[ing] standards for the training, kind of weapons and scope and kind of orders to control the actions of the National Guard.” Gilligan, 413 U.S. at 6, 93 S.Ct. 2440.

Moreover, to read these decisions as foreclosing justiciability of military personnel decisions is contrary to a more recent Supreme Court decision. As previously discussed at some length, the Court in Clinton, 526 U.S. at 539-40, 119 S.Ct. 1538, recognized judicial remedies under the APA and the Tucker Acts as “available to a servieemember demanding to be kept on the roles,” id. at 537, 119 S.Ct. 1538— the very demand of Col. Hanson.

This brings us to our second point. Perhaps what is meant by saying that Col. Hanson’s claim is nonjusticiable is simply that the political branches of government have not authorized it. We question whether one could say that the Constitution commits an issue to the political branches, see Baker, 369 U.S. at 217, 82 S.Ct. 691, if the political branches can then convey to the judiciary the authority to resolve the issue. But if that is what is meant by justiciability in the circumstances of this case, then there can be no quarrel with the approach taken in this opinion. If a claim would be justiciable had Congress enacted legislation authorizing the claim, then a determination that Congress had not so authorized the claim would be essential to a determination that the claim is nonjusticiable. That is, the claim could not be determined to be non-justiciable without examining whether Congress had authorized such a claim. Thus, what we have done in this opinion— namely, determine that Congress has not authorized claims such as the one brought by Col. Hanson against Maj. Gen. Wyatt for alleged violation of a National Guard regulation — is something that must be done to resolve whether Col. Hanson’s claim is justiciable (in the sense of the term used in this paragraph). The approach taken by this opinion would not be contrary to justiciability doctrine but simply an application of it. To be sure, if we lacked jurisdiction in this case because, for example, Col. Hanson lacked Article III standing, the claim was moot, or the question was not presented in an adversary context, then we would lack authority to decide whether Col. Hanson’s claim stated a cause of action. But if justiciability turns on whether Congress has authorized a cause of action, then undoubtedly we are not precluded by nonjusticiability from deciding whether Congress has done so.⁴

The above discussion explains why justi-ciability doctrine does not preclude this opinion’s treatment of Col. Hanson’s claim based on a violation of NGR 635-102.⁵ There remains, however, his due-process claim. For reasons already expressed with respect to Col. Hanson’s claim based on a violation of the National Guard regulation, we doubt that the claim is nonjusti-ciable under the political-question doctrine. But regardless, we believe that it was appropriate for us to decide the matter on the merits without first addressing justici-ability.

The concurrence cites various Supreme Court dicta from which one could reasonably infer that justiciability under the po litical-question doctrine must always be addressed before the merits of a case. But contrary to that inference is the one Supreme Court holding directly in point, New York v. United States, 505 U.S. 144, 112 S.Ct. 2408, 120 L.Ed.2d 120 (1992). New York contended, among other claims, that certain congressional legislation was prohibited by the Constitution’s Guarantee Clause, which “guarantee^ to every State in this Union a Republican Form of Government.” U.S. Const, art. IV, § 4. The seminal Supreme Court decision under the political-question doctrine was a Guarantee Clause case, Luther v. Borden, 48 U.S. 1, 7 How. 1, 12 L.Ed. 581 (1849). And it has been said that “[violation of the great guaranty of a republican form of government in States cannot be challenged in the courts.” Colegrove v. Green, 328 U.S. 549, 556, 66 S.Ct. 1198, 90 L.Ed. 1432 (1946) (plurality opinion). The New York court, however, was not so sure about that. It decided not to resolve the matter on justi-ciability grounds. Rather, it assumed jus-ticiability and rejected the claim on the merits. We quote at length:

More recently, the Court has suggested that perhaps not all claims under the Guarantee Clause present nonjusticiable political questions. Contemporary commentators have likewise suggested that courts should address the merits of such claims, at least in some circumstances.

We need not resolve this difficult question today. Even if we assume that petitioners’ claim is justiciable, neither the monetary incentives provided by the Act nor the possibility that a State’s waste producers may find themselves excluded from the disposal sites of another State can reasonably be said to deny any State a republican form of government. As we have seen, these two incentives represent permissible conditional exercises of Congress’ authority under the Spending and Commerce Clauses respectively, in forms that have now grown commonplace. Under each, Congress offers the States a legitimate choice rather than issuing an unavoidable command. The States thereby retain the ability to set their legislative agendas; state government officials remain accountable to the local electorate. The twin threats imposed by the first two challenged provisions of the Act — that New York may miss out on a share of federal spending or that those generating radioactive waste within New York may lose out-of-state disposal outlets — do not pose any realistic risk of altering the form or the method of functioning of New York’s government. Thus even indulging the assumption that the Guarantee Clause provides a basis upon which a State or its subdivisions may sue to enjoin the enforcement of a federal statute, petitioners have not made out such a claim in these cases.

New York, 505 U.S. at 185-86, 112 S.Ct. 2408 (emphasis added, citations omitted).

We recognize that New York predates the Supreme Court’s decision in Steel, which rejected the practice of hypothetical jurisdiction, a practice used by lower courts to reject a claim on the merits when that course was easier than deciding whether the court had jurisdiction. See 523 U.S. at 102-03, 118 S.Ct. 1003. But Steel did not overrule New York. Although Steel thoroughly canvassed Supreme Court decisions that might appear to have adopted hypothetical jurisdiction, it did not even mention New York. This is particularly noteworthy because all five Justices who wrote (Justice Scalia) or joined the Steel opinion’s discussion of hypothetical jurisdiction had joined (or, in the case of Justice O’Connor, written) the New York opinion less than six years earlier. Perhaps this was just a remarkable lapse of memories; but we must assume that the Court has recognized a distinction between jurisdiction and political-question justiciability. It may be worth noting that neither New York’s treatment of the Guarantee Clause issue in that case nor our resolution of Col. Hanson’s due-process claim is likely to raise any concern in the political branches about the courts’ violating their turf.

In sum, we think that our opinion does not represent an improper exercise of judicial authority. Rather, we have addressed and resolved the core issue presented by the parties — whether the district court had authority to resolve Col. Hanson’s claim against Maj. Gen. Wyatt based on a violation of a military regulation.

CONCLUSION

Col. Hanson has not stated a cause of action cognizable in federal court. We therefore REVERSE the judgment of the district court and REMAND to that court with instructions to dismiss the complaint. Because of this reversal, we need not address Col. Hanson’s argument on cross-appeal that he is entitled to attorney fees.

Footnotes

1

. We note that in the record of proceedings of the ABCMR, Maj. Gen. Wyatt "advised that the non-selection action taken by the SRB only withdrew [Col. Hanson's] State appointment in the OKARNG [Oklahoma Army National Guard],” and Col. Hanson "still retains his Federal rank and status.” J.App. at 21.

2

. We emphasize that we are saying nothing about the scope of the ABCMR's authority in reviewing Maj. Gen. Wyatt's decision. Also, we are not addressing whether Col. Hanson has a claim under the APA against Maj. Gen. Wyatt in his federal capacity, because we believe that Col. Hanson's claim is against Maj. Gen. Wyatt in his state capacity. We note, however, that even if Col. Hanson's APA claim was against Maj. Gen. Wyatt in his federal capacity, we would need to reverse the judgment against him in that capacity because of the failure to serve the United States. See Jordan v. United States, 694 F.2d 833, 835 (D.C.Cir.1982) ("It is indisputable that a valid judgment cannot be entered against the United States without proper service.”).

3

. The Army National Guard of the United States is a reserve component. See 10 U.S.C. § 10101(1).

4

. The concurrence states that this opinion "say[s] that the courts have the authority to hear a case whenever the facts permit a plaintiff to state a claim for relief under a statute of general applicability.” Op. (Gorsuch, J. concurring) at 1173-74 n. 12. This opinion, of course, says no such thing. As stated on page 1154, supra, in the absence of an available statute of general applicability, we have no need to decide whether a claim like this could proceed if there were such a statute.

5

. The concurrence claims support for its position on justiciability in a string cite of circuit-court opinions. We have not ignored these cases. Their reasoning has been ably captured in the concurrence’s argument, which we have confronted. We would be more daunted by this authority if any of the opinions had distinguished the Supreme Court’s decision in Clinton. But none even cites Clinton, and only two were handed down after Clinton. The most recent of the cited opinions is of particular interest in two respects. In Dibble v. Fenimore, 339 F.3d 120, 126 (2d Cir.2003), the court noted a circuit split regarding "the justiciability of claims [by servicemembers] who seek equitable relief for alleged constitutional violations in personnel decisions.” It counted five circuits that permit "equitable challenges to personnel decisions only when they constitute facial challenges to the constitutionality of military regulations, and not in cases of discrete individualized actions.” Id. And it counted three that "have entertained equitable actions protesting military personnel decisions that were not facial challenges to the constitutionality of a military regulation.” Id. Citing Walden v. Bartlett, 840 F.2d 771 (10th Cir.1988), the court put this circuit in the minority camp. Second, Dibble stated that "the rule of non-justiciability of discretionary military decisions is not absolute.” Id. at 128 (brackets and internal quotation marks omitted). Perhaps anticipating suits like Col. Hanson’s, the court gave an example of a justiciable claim: "[Wjhere the military has failed to follow its own mandatory regulations in a manner substantially prejudicing a service member, we will entertain a suit seeking redress of the prejudice.” Id. (internal quotation marks omitted). Because Dibble did “not allege that the Guard failed to follow its own procedures when it discharged him from service,” the court held that he could not bring his claim. Id.