725 F.2d 107 (D.C. Cir. 1983), 82-2089, Walters v. Secretary of Defense

Docket Nº:82-2089.
Citation:725 F.2d 107
Party Name:Robert A. WALTERS, et al. v. SECRETARY OF DEFENSE, et al., Appellants.
Case Date:December 30, 1983
Court:United States Courts of Appeals, Court of Appeals for the District of Columbia Circuit
 
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Page 107

725 F.2d 107 (D.C. Cir. 1983)

Robert A. WALTERS, et al.

v.

SECRETARY OF DEFENSE, et al., Appellants.

No. 82-2089.

United States Court of Appeals, District of Columbia Circuit

December 30, 1983

Argued Sept. 23, 1983.

Appeal from the United States District Court for the District of Columbia (Civil Action No. 81-00962).

John D. Bates, Asst. U.S. Atty., Washington, D.C., with whom Stanley S. Harris, U.S. Atty., Washington, D.C. (at the time the brief was filed), Royce C. Lamberth, R. Craig Lawrence and John Oliver Birch, Asst. U.S. Attys., Washington, D.C., were on the brief, for appellants.

Barton F. Stichman, Washington, D.C., with whom David F. Addlestone, Washington, D.C., was on the brief, for appellees.

Joseph M. Hassett, John C. Keeney, Jr., Sue A. Kaplan, and Katherine A. Schoff, Washington, D.C., were on the brief, for amicus curiae urging affirmance.

Before TAMM and WILKEY, Circuit Judges, and MacKINNON, Senior Circuit Judge.

Opinion for the Court filed by Senior Circuit Judge MacKINNON.

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MacKINNON, Senior Circuit Judge:

Within seven weeks after Robert Walters was inducted into the Marine Corps in 1973, he was given a general discharge from service, following an administrative hearing in which evidence of drug abuse was introduced through a compelled urinalysis examination. On August 22, 1981, not having availed himself of administrative remedies, Walters sued in the District Court, for declaratory and injunctive relief to upgrade his discharge to honorable, and sought to represent the class of all others similarly situated in the Navy, Marine Corps, and Air Force. The District Court granted plaintiff Walters' motion for summary judgment and ordered the class relief requested by plaintiff. Walters v. Secretary of Defense, 533 F.Supp. 1068 (D.D.C.1982).

The Secretary appeals and urges three grounds for reversal: 1) that the six-year statute of limitations in 28 U.S.C. Sec. 2401(a) (1976 & Supp. V 1981) barred this action; 2) that plaintiff did not exhaust his administrative remedies; and 3) that under recent changes in underlying military law, plaintiff's discharge based on a compulsory urine specimen was lawful. Because of the presence of a common issue of the statute of limitations, this case was argued contemporaneously with Calhoun v. Lehman, 725 F.2d 115 (D.C.1983).

We reverse the District Court's decision on the ground that the six-year statute of limitations of section 2401(a) bars this civil action for declaratory and injunctive relief brought seven and one-half years after the former servicemember's discharge.

I. GENERAL LEGAL BACKGROUND

In the early 1970's the armed forces operated a program of compulsory urine sampling that attempted to identify military drug abusers. Under procedures prevalent at that time, evidence secured from compulsory urine samples could be introduced at administrative proceedings leading to less-than-honorable discharges. See Giles v. Secretary of the Army, 475 F.Supp. 595, 597-98 (D.D.C.1979), aff'd as modified, 627 F.2d 554 (D.C.1980). On one occasion, this Court approved the constitutionality of an extensive program of compulsory urinalysis within the military. Committee for GI Rights v. Callaway, 518 F.2d 466 (D.C.Cir.1975). 1

In United States v. Ruiz, 23 C.M.A. 181, 48 C.M.R. 797 (1974), the Court of Military Appeals had previously held that an order compelling delivery of a urine specimen violated Article 31 of the Uniform Code of Military Justice (UCMJ), 2 and was unlawful even when intended to be used in an administrative proceeding. That case applied to administrative proceedings prior decisions dealing with courts martial. United States v. Jordan, 7 C.M.A. 242, 22 C.M.R. 242 (1957), reversed a court-martial conviction for refusal to obey an unlawful order to furnish a urine specimen; and United States v. Forslund, 10 C.M.A. 8, 27 C.M.R. 82 (1958), reversed a court-martial conviction

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that rested on evidence inadmissable because it was derived from an unlawful order to provide a urine specimen. Ruiz itself set aside a conviction for refusal to obey such an order. 23 C.M.A. at 183, 48 C.M.R. at 799.

After Ruiz, the services adopted regulations providing that administrative discharges based solely on compelled urine samples would be classified "honorable." Enlisted Administrative Separations, 32 C.F.R. Sec. 41.7(f) (1982). The new rules were also extended to former servicemembers who might apply to military discharge review boards (DRB's) for upgrading of their discharges. 32 C.F.R. Sec. 70.6(c)(i), (ii) (1982).

In Giles, supra, the recipient of an administrative general discharge from the Army based on a compulsory urine sample, sought an upgrading to an honorable discharge from the district court. Relying primarily upon Ruiz, and without independently considering that decision, Judge Parker ordered that Giles' discharge be upgraded, certified a class consisting of all persons discharged from the Army under similar circumstances, and ordered the upgrading of all such discharges. Giles, supra, at 475 F.Supp. 595. This Court affirmed with one limited modification. Giles v. Secretary of the Army, 627 F.2d 554, 557-59 (D.C.Cir.1980).

Under the Jordan-Forslund-Ruiz line of cases, Article 31 had been construed as extending the scope of protection from self-incrimination beyond the Fifth Amendment. In United States v. Armstrong, 9 M.J. 374 (C.M.A.1980), the Court of Military Appeals sharply reduced that anomaly in a case involving the taking of blood specimens. Writing for himself only, Chief Judge Everett concluded that Article 31 "was not intended to go beyond the scope of the Fifth Amendment [and] has no relevancy to blood specimens...." 9 M.J. at 380. The concurrence of the Court's other two members did not sweep so broadly as to the identity between Article 31 and the Fifth Amendment, but did "agree ... that '[n]o persuasive reason exists for Article 31 to be extended to bodily fluids' ...." 9 M.J. at 384. United States v. Lloyd, 10 M.J. 172 (C.M.A.1981), involved the compelled production of documents including handwriting specimens, and reinforced the approach of Armstrong in equating Article 31 with the Fifth Amendment and its limitations. 10 M.J. at 175. Thus, although Armstrong involved blood rather than urine samples, and did not expressly overrule Ruiz, its impact on Ruiz was devastating.

In 1983, since the decision of the District Court in this case, yet another decision of the Court of Military Appeals, Murray v. Haldeman, 16 M.J. 74, 81 (C.M.A.1983), has ruled that "[u]rine specimens fall within the [Armstrong ] rationale." As a matter of Article 31 law, then, the introduction of compulsory urinalysis evidence into administrative discharge proceedings is now lawful. 3 The military services, however, seem not to have amended their post-Ruiz regulations to reflect the new case law of Armstrong and Murray. The trial court record is silent on this point. Counsel for appellants indicated at oral argument that, although changes were under way, none of the services had accomplished a final amendment of relevant regulations. 4

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II. PROCEDURAL BACKGROUND

Against this shifting background, plaintiff Walters seeks relief similar to that granted in Giles, but on behalf of a class of Navy, Marine Corps, and Air Force veterans. On November 8, 1973, seven weeks after Walters enlisted, he was given his administrative general discharge, based on drug abuse revealed by a compulsory urine specimen. More than six years later, 5 Walters filed a review application with the Navy Board of Review for discharges and dismissals 6 seeking an upgrade. Walters' counsel, the National Veterans Law Center, later withdrew his application due to their scheduling difficulties concerning their representation of Walters. No new administrative application was ever filed by Walters.

Walters filed this suit in the District Court on August 22, 1981. Cross-motions for summary judgment followed. Judge Parker granted summary judgment in favor of plaintiff and his class, 7 and prescribed that the services determine which servicemembers were discharged in reliance upon compelled urine specimens, and then either grant an automatic upgrade to each, or offer a new discharge hearing in those cases where independent grounds existed. Walters v. Secretary of Defense, 533 F.Supp. 1068 (D.D.C.1982).

The District Court rejected each of the Secretary's proffered grounds for summary judgment, the three issues raised upon appeal. Judge Parker gave two reasons for rejecting the Secretary's contention that 28 U.S.C. Sec. 2401(a), infra, constituted a time bar to the action: (1) such an action falls outside the scope of the statute; and (2) alternatively, that because Walters had fifteen years to bring an administrative challenge to his discharge under the UCMJ, 10 U.S.C. Sec. 1553(a), 8 his cause of action had not yet accrued. Id. at 1070-71. In rejecting the Secretary's exhaustion argument, the District Court invoked its discretion to create an exception to the exhaustion requirement: because "all parties agree that Walters would have received an upgraded discharge had he not...

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