Doe v. U.S.

Decision Date30 December 1997
Docket NumberNo. 96-5108,96-5108
PartiesJohn DOE, Plaintiff-Appellant, v. The UNITED STATES, Defendant-Appellee.
CourtU.S. Court of Appeals — Federal Circuit

Guy James Ferrante, King & Everhard, P.C., Falls Church, VA, argued, for Plaintiff-Appellant.

John S. Groat, Commercial Litigation Branch, Civil Division, Department of Justice, Washington, DC, argued, for Defendant-Appellee. With him on the brief were Frank W. Hunger, Assistant Attorney General, David M. Cohen, Director, and James M. Kinsella, Assistant Director. Of counsel on the brief was Lt. Col. Steve Pecinovsky, Dept. of the Air Force, Office of the Judge Advocate General, Arlington, VA.

Before MICHEL, Circuit Judge, ARCHER, Senior Circuit Judge, * and PLAGER, Circuit Judge.

PLAGER, Circuit Judge.

Based on a charge of having sexually molested his teenage daughter on a camping trip in 1981, Major John Doe 1 was discharged seven years later from the United States Air Force with an "other than honorable" discharge. After exhausting his administrative remedies with the Air Force, Major Doe sued in the United States Court of Federal Claims for the back pay, both active and retired, that he would have earned had he not been discharged, wrongfully in his view, and for correction of his military record. The Court of Federal Claims granted summary judgment for the United States, upholding the Air Force's action. 2

Because Major Doe's discharge was accomplished through the use of hearsay evidence wrongfully obtained by Government lawyers in direct violation of a state court order, as a result of which Major Doe was denied the opportunity to effectively challenge the hearsay evidence, and because even if the evidence were untainted it was too insubstantial to provide a valid basis for the disciplinary action taken against him, we reverse and remand with instructions.

BACKGROUND

At the time of his discharge, Major Doe had an exemplary and distinguished military career. He had accumulated over 14 years of active-duty service, including a brief tour of duty in Korea and nearly a year in Vietnam, where he flew 179 combat missions and 13 combat support missions. Among the several medals he was awarded was the Distinguished Flying Cross.

The operative events in the case occurred between 1981 and 1987. During part of this time, from 1979 to 1984, Major Doe, an aerospace physiologist, held a duty assignment as an instructor in biology at the Air Force Academy in Colorado Springs. He was later assigned to Brooks AFB in Texas, from where he was discharged.

The facts, stripped to their essentials, can be briefly stated. The Does had a teenage daughter, Jane Doe, living at home. The record establishes that Jane was an emotionally disturbed child, who, according to her mother's statement, was rebellious, experimenting with drugs, and associating with a group of young people of whom her parents disapproved. In March 1982, Jane was hospitalized following an apparent suicide attempt. During the course of her hospitalization, Jane allegedly told one of the doctors treating her that, on a camping trip that they had taken together the preceding year, her father, Major Doe, had sexually molested her.

Subsequently, a Colorado Department of Social Services ("DSS") employee, Marsha Nicoll, interviewed Jane. Ms. Nicoll prepared a report of the case, including the substance of the interview, and sent it to the local district attorney's office. This report became known as the 'transfer summary.' The district attorney's office sent a copy of the 'transfer summary' to the Air Force Office of Special Investigations ("OSI").

Later that month the El Paso County District Court, to whom the matter had been referred by the local authorities, issued, on motion of Jane's guardian ad litem, a Protective Order restricting access to all records of the case, including the DSS records. Under the Order, access to the records was limited to the parties, the DSS, and authorized court personnel.

Meanwhile, an officer of the El Paso County Sheriff's Department, Deanna Olmstead, was conducting her own investigation. In April 1982, in response to an inquiry from OSI, Ms. Olmstead sent OSI a report that described two conversations Ms. Olmstead allegedly had with Major Doe's attorney in the matter, and enclosed, in violation of the District Court Order, a copy of the 'transfer summary.' This report became known as the 'sheriff's report.' OSI then sent a copy of the 'sheriff's report' to the Superintendent of the Air Force Academy.

More than a year later, in August 1983, a representative of the Air Force moved to intervene in the District Court proceedings so as to gain access to the records in the case. That motion was denied in October 1983.

After another year or so had passed, in January 1985 the Air Force, through its attorney Major Joseph Traficanti, renewed its motion, requesting that the restriction Order be set aside so that the Air Force could obtain evidence it needed in order to determine Major Doe's continued fitness as an Air Force officer. The District Court, after hearing and considering both the Air Force's concerns and the need to protect the family unit and members while the matter remained sub judice, issued an amended Order essentially denying the Air Force request. The amended Order reaffirmed the earlier Order, and in addition specifically enjoined all representatives of DSS and the Sheriff's Department, as well as hospital personnel, from releasing any further information about the case to anyone outside the court's own agencies. In a colloquy with Major Traficanti in the course of the hearing on the matter, the District Court granted the Air Force a small concession--the Air Force could ask DSS and the Sheriff's Department one and only one question: "Is this [the 'transfer summary' and the 'sheriff's report'] an authentic document from your Department?"

The Air Force's need for getting access to the records in the case arose from discharge proceedings the Air Force had initiated against Major Doe. Specifically, in 1983, Major Then, in January 1986, Major Doe was again notified that he would be required to "show cause" why he should be retained on active duty. This time a Board of Inquiry was convened to consider the question. During the proceedings before the Board, the presiding judge (known as the Legal Advisor) ruled that the purported statements of Jane Doe contained in the 'transfer summary' were inadmissible: "[t]his is hearsay upon hearsay and I find that there are no adequate safeguards for the truth of the statements of [Jane Doe] to Ms. Nicholl [sic]." 3 With the 'transfer summary' inadmissible, the portions of the 'sheriff's report' attributable to Jane were also ruled inadmissible.

Doe was instructed to "show cause" why he should be retained on active duty in light of information that had been placed in his official file. This proceeding was terminated in February 1984, presumably for lack of evidence to support it.

Rather than terminating the proceedings as was done in 1984, the Air Force permitted the Board proceedings to be continued in order to allow the Government to better support its case, specifically "to bolster indicia of reliability surrounding [Jane Doe]'s statement." The prosecuting attorney (called a Recorder), in arguing for a continuance, admitted that the Legal Advisor's ruling had "taken away the main part of the government's case."

At the request of Air Force officials in Texas, where Major Doe was now stationed, Major Traficanti, accompanied by Major Richard Bowers, another Air Force attorney, returned to Colorado Springs. There, with the assistance of an attorney from the local district attorney's office, and in direct violation of the District Court's Protective Order, which they all knew was still in effect, Major Traficanti and Major Bowers interviewed the DSS employee, Ms. Nicoll, and the Sheriff's Department investigator, Ms. Olmstead. These interviews were conducted without knowledge of, or participation by representatives of, Major Doe, Jane Doe or the District Court. The interviews focused on the recollections of the two witnesses regarding the events of some four years earlier, and reaffirmed that the witnesses meant what they said in the respective 'transfer summary' and 'sheriff's report.'

The Board of Inquiry reconvened in July 1986. The Legal Advisor ruled that transcripts of the interviews obtained in Colorado now made the 'transfer summary' admissible as proof of the facts contained therein, and with it the 'sheriff's report.' Major Doe's counsel protested that, in addition to the fact that the interviews added nothing of substance to the record, they had been conducted ex parte under highly prejudicial circumstances. Because he was duty bound to respect the Order of the District Court and not contact either of the persons interviewed (or any others covered by the Order), there could be no opportunity for him to effectively challenge the witnesses' statements.

Counsel's objection was unavailing; on the basis of the "new" record before it, the Board recommended that Major Doe be given an Under Other Than Honorable Conditions discharge. On February 13, 1987, the Board's recommendation was implemented by the Air Force. Over the dissent of one panel member, subsequent efforts by Major Doe to obtain relief from the Air Force Board for the Correction of Military Records were equally unavailing.

Major Doe filed a claim under the Tucker Act in the United States Court of Federal Claims, requesting back pay from the date of his discharge through March 31, 1992, and retirement pay from April 1, 1992, the date when plaintiff was originally scheduled to retire, to the present. Major Doe also sought to require the Secretary of the Air Force to correct his military records. The United States moved for and was granted summary judgment. See Doe v. United States, 35 Fed. Cl. 85 (1996). This appeal followed.

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