Marcus Covington, Jr. v. Donald Anderson, Adjutant General of the Military Department of the State of Oregon

This appeal is from an order granting summary judgment in favor of defendants-appellees in an action by plaintiff-appellant, Marcus Covington, Jr., seeking declaratory and injunctive relief and damages for his suspension from flight status as a jet pilot with the Oregon Air National Guard (OANG). The defendants-appellees are officials of the Oregon Military Department.

Defendants filed a motion to dismiss 1 and, in the alternative, for summary judgment, basing their motion for summary judgment on the pleadings, a supporting memorandum, and numerous exhibits. In opposing the motion plaintiff relied upon the complaint, his affidavit, depositions of defendant-appellee Doolittle and three other officers of the Oregon National Guard, and a supporting memorandum. Following a hearing the court entered an order reading: “Defendants’ motion for summary judgment is hereby granted.” 2

Factual Background

On January 7, 1971 the United States Department of Defense issued an order directing all Air National Guard units to reduce jet pilot strength to “authorized” levels by February 28, 1971. In Oregon this required a reduction from 38 to 34 pilots.

By direction of General Doolittle, Chief of…

(dissenting) :

It is undoubtedly true that Generál Doolittle could have discharged his duty to reduce jet pilot strength in a manner not involving the convening of a “board of officers.” In my view, however, the manner chosen by him did result in the convening of such a board with quasi-judicial functions which, through its “report,” has made findings prejudicially reflecting on appellant’s “conduct, efficiency and fitness.” This is precisely the kind of consequence which Air Force Regulation 11-1 says should occur only in the presence of some basic procedural safeguards, not provided here. It was on the basis of the report that appellant was suspended from flight status. In my view the authority of the committee to make such a report sufficiently establishes that appellant was “under investigation” in these respects to entitle him to the rights and privileges extended by Regulation 11-1.

Since it appears to me that this military body has ignored its own regulations, I would hold that a cognizable claim of denial of procedural due process is presented, and would reverse and remand for further proceedings.

487 F.2d 660 Marcus COVINGTON, Jr., Plaintiff-Appellant, v. Donald ANDERSON, Adjutant General of the Military Department of the State of Oregon, et al., Defendants-Appellees. No. 72-1085. United States Court of Appeals, Ninth Circuit. Nov. 12, 1973. 1 Don H. Marmaduke, Charlen Merten (argued), Portland, Or., for plaintiff-appellant. 2 Lee Johnson, Atty. Gen., E. Nordyke, Asst. Atty. Gen., Portland, Or., John W. Osburn (argued), Salem, Or., for defendants-appellees. 3 Before MERRILL and TRASK, Circuit Judges, and JAMESON, * District Judge. JAMESON, District Judge: 4 This appeal is from an order granting summary judgment in favor of defendants-appellees in an action by plaintiff-appellant, Marcus Covington, Jr., seeking declaratory and injunctive relief and damages for his suspension from flight status as a jet pilot with the Oregon Air National Guard (OANG). The defendants-appellees are officials of the Oregon Military Department. 5 Defendants filed a motion to dismiss 1 and, in the alternative, for summary judgment, basing their motion for summary judgment on the pleadings, a supporting memorandum, and numerous exhibits. In opposing the motion plaintiff relied upon the complaint,…