Sims v. Fox

• Citation: 505 F.2d 857
• Decision Date: 30 December 1974
• Docket Number: No. 73-2707,73-2707
• Parties: Grover William SIMS, Second Lieutenant, United States Air Force 418-66-6972-FV, Plaintiff-Appellant, v. Cecil E. Fox, Brigadier General, etc., and Dr. John L. McLucas, Secretary ofthe Air Force, Defendants-Appellees.
• Court: United States Courts of Appeals. United States Court of Appeals (5th Circuit)

Page 857

505 F.2d 857

Grover William SIMS, Second Lieutenant, United States Air

Force 418-66-6972-FV, Plaintiff-Appellant, v. Cecil E. Fox, Brigadier General, etc., and Dr. John L.

McLucas, Secretary ofthe Air Force, Defendants-Appellees.

No. 73-2707.

United States Court of Appeals, Fifth Circuit.

Dec. 30, 1974.

Reginald C. Wisenbaker, Valdosta, Ga., for plaintiff-appellant.

Hale Almand, Jr., Asst. U.S. Atty., William J. Schloth, U.S. Atty., Sam R. Wilson, Earl W. Carson, Asst. U.S. Attys., Macon, Ga., Dr. John L. McLucas, Sec. of Air Force, William Kanter, Thomas G. Wilson, Dept. of Justice, Washington, D.C., for defendants-appellees.

Before BROWN, Chief Judge, and TUTTLE, WISDOM, GEWIN, BELL, THORNBERRY, COLEMAN, GOLDBERG, AINSWORTH, GODBOLD, DYER, SIMPSON, MORGAN, CLARK, RONEY and GEE, Circuit Judges.

COLEMAN, Circuit Judge.

This is an action by Air Force Lieutenant William Sims against Air Force General Cecil Fox and the Secretary of the Air Force. Sims asks that the Air Force be enjoined from discharging him without first giving him a hearing in person to present proof of his fitness for continued service.

The District Court dismissed Sims' complaint for failure to state a claim upon which relief could be granted. A Panel of this Court reversed, Sims v. Fox, 5 Cir., 1974, 492 F.2d 1088. We granted the petition for rehearing en banc, and again consider the correctness of the dismissal.

We affirm the Judgment of the District Court.

Lt. G. William Sims was ordered to active duty on July 14, 1971. His performance of duty was good. Until June, 1972 his off-duty life was unremarkable. In that month, Sims was arrested for two separate acts of indecent exposure. Specifically, on June 20 and June 23 he was charged with exposing his sexual organs to females. He was released on bond.

In September of 1972, Mrs. Carol Barnett, a civilian, reported to military authorities that Sims on two occasions had exposed himself to her minor children, ages six, nine, and four. Sims was again charged with indecent exposure.

On 4 January, 1973, Sims was tried in a Georgia state court. Under a Georgia statute providing for special treatment for first offenders, ¹ he was allowed to plead nolo contendere and was placed on probation for a year. Although the Georgia Court made no adjudication of guilt, Sims has never denied that he, in fact, committed the acts with which he was charged.

On January 24, 1973, Sims was notified by his Wing Commander that discharge proceedings ² were being initiated. Sims was given 15 days in which to submit written statements and documentary evidence.

In response, Sims submitted a letter from a superior officer characterizing him as 'one of my most trustworthy subordinates', a letter from a psychiatrist saying that Sims is 'mentally and emotionally capable of performing his old duties and occupation', along with the Georgia court order which discharged him without an adjudication of guilt. However, Sims wrote his Commander that 'this information does not deny the basic allegations against me'.

Unpersuaded by the evidence submitted by Sims, the Secretary of the Air Force ordered Sims honorably discharged.

The exact terms of the discharge are important. At the time Sims was notified of his prospective discharge and at the time the Panel heard sims' appeal, Air Force regulations provided that the discharge certificate (DD Form 214) would contain a code ³ which, upon inquiry, would reveal that Sims was discharged because of '(failure) to meet the standards of conduct and performance prescribed by the Secretary of the Air Force', ⁴ and would further reveal that the discharge was related to Sims' 'unfitness, unacceptable conduct or in the interest of national security.' ⁵ As the Panel observed,

'Simply stated, an honest inquiry into the basis for Sims' discharge would demonstrate that (Sims) had been given a discharge for reasons that would greatly undercut the status of the discharge as 'an honorable discharge.' . . . There can be no doubt but that Sims' discharge (would be) a flawed passport back to civil(ian) life.' 492 F.2d at 1091.

Since the rendition of the panel decision, there has been a significant change in Air Force regulations. They now provide that the code explaining the reason for discharge will not be put on the discharge certificate. ⁶ The certificate 'on its face' does not reveal the reason for discharge. Furthermore, the regulations specify that narrative reasons for discharge can be obtained only by a former 'member (furnishing) the original DD Form 214 for the period of service for which he desires the narrative reasons for separation'. ⁷ As explained by Air Force correspondence, 'narrative reasons for separation are to be furnished only to the member and then only upon his request and provided the member can furnish the original DD Form 214.' ⁸

Sims' contention is that notwithstanding the honorable character of the discharge and notwithstanding the fact that there is nothing on the face of the discharge paper (DD Form 214) to indicate the reason for discharge, he is entitled to a pre-discharge hearing. Sims says that the Air Force, by discharging him on the ground of sexual deviancy, is denying him 'liberty' and 'property' and he is therefore entitled to the 'due process' guaranteed by the Fifth Amendment.

Sims raises these claims despite 10 U.S.C. 1162 which provides that a reserve officer such as Sims may be discharged 'at the pleasure of the President'.

I. The Property Claim

Sims first claims that he has a 'property right' in continued employment in the Air Force. In his brief, Sims says that the property right is conferred by his 'expectation of a full tour of duty', by 'an implied promise . . . of continued service . . .', or by an 'understanding' between himself and the Air Force.

A substantially similar claim was considered in Board of Regents of State College v. Roth, 408 U.S. 564, 92 S.Ct. 2701, 33 L.Ed.2d 548 (1972). In that case, a non-tenured state college professor claimed, inter alia, that the State's refusal to renew his contract was a deprivation of his 'property' and that he was therefore entitled to a pre-discharge hearing. The Supreme Court responded that a non-tenured professor, who was given no right to contract renewal either by state law or by expressed or implied terms of his contract, had no property interest in continued employment.

'To have a property interest in a benefit, a person clearly must have more than an abstract need or desire for it. He must have more than a unilateral expectation of it.

'(The) terms (of plaintiff's appointment) secured his interest in employment up to June 30, 1969. But the important fact in this case is that they specifically provided that the respondent's employment was to terminate on June 30. They did not provide for contract renewal absent 'sufficient cause.' Indeed, they made no provision for renewal whatsoever.

'Thus, the terms of the respondent's appointment secured absolutely no interest in re-employment for the next year. They supported absolutely no possible claim of entitlement to re-employment. Nor, significantly, was there any state statute or University rule or policy that secured his interest in re-employment or that created any legitimate claim to it. In these circumstances, the respondent surely had an abstract concern in being rehired, but he did not have a property interest sufficient to require the University authorities to give him a hearing when they declined to renew his contract of employment.' 92 S.Ct. at 2709-2710.

The present facts are similar to those in Roth in that there is nothing in Sims' contract or in any statute creating a right to continued employment. The statute specifically negates the right of a reserve officer to continued employment; reserve officers may be discharged 'at the pleasure of the President', 10 U.S.C. 1162. Thus, the statute explicitly provides that one has no vested right to continue in the employment of the United States Armed Forces. One who may be discharged 'at the pleasure' of another; i.e., arbitrarily, for no cause whatsoever, simply has no property right to continued employment. The statute could not have expressed that proviso in any more specific terms.

Apparently recognizing that the source of his alleged property right to employment cannot lie in the statute, plaintiff claims he is given such a right by 'understanding' or 'implied promise'. That a property right may spring from such a source is supported by language in Roth, supra, and also by the holding in Perry v. Sindermann, 408 U.S. 593, 92 S.Ct. 2694, 33 L.Ed.2d 570 (1972). In the latter case, a non-tenured professor complained, inter alia, that he had been deprived of 'property' because his contract had not been renewed. There was no statute and no contract that gave him a right to contract renewal. Rather, the plaintiff argued that the college had a 'de facto' tenure policy. This policy was expressed in the college's faculty guide which provided:

'Teacher Tenure: Odessa College has no tenure system. The Administration of the College wishes the faculty member to feel that he has permanent tenure as long as his teaching services are satisfactory and as long as he displays a cooperative attitude toward his co-workers and his superiors, and as long as he is happy in his work.' 92 S.Ct. at 2699.

Additionally, plaintiff there relied upon guidelines published by the state college board indicating that a person who had been employed as a teacher enjoyed a form of tenure.

These 'policies and practices' of the school and the Board of Trustees, the Court said, could create a property interest. It was not necessary that an employment contract or a statute specifically create the interest.

The Perry case supports plaintiff's argument in the sense that it indicates that there is no rigid limit to the sources of property rights. Such rights may be derived from statutes, from explicit...