Geyen v. Marsh

Citation775 F.2d 1303
Decision Date05 November 1985
Docket NumberNo. 84-4607,84-4607
PartiesCalvin GEYEN, Jr., Plaintiff-Appellant, v. John O. MARSH, Jr., Secretary of the United States Army, Defendant-Appellee.
CourtUnited States Courts of Appeals. United States Court of Appeals (5th Circuit)

Lonnie R. Smith, Bobbie J. Ross, Lake Charles, La., for plaintiff-appellant.

Barton F. Stichman, Washington, D.C., for Vietnam Veterans of America, amicus curiae.

Joseph S. Cage, U.S. Atty., D.H. Perkins, Jr., Shreveport, La., Wayne H. Price, Litigation Atty., Dept. of the Army, Dept. of the Judge Advocate Gen., HQDA, (DAJA-LTM), Marshall M. Kaplan, Washington, D.C., for defendant-appellee.

Appeal from the United States District Court for the Western District of Louisiana.

Before CLARK, Chief Judge, THORNBERRY and JONES, Circuit Judges.

OPINION

THORNBERRY, Circuit Judge:

Appellant Calvin Geyen filed suit in the United States District Court for the Western District of Louisiana seeking to have his Army discharge upgraded from undesirable to honorable. He alleges (1) that the Army violated the Constitution and its own regulations in involuntarily activating him in 1969 and twice denying him a hardship discharge in 1970, and (2) that the decision of the Army Board for Correction of Military Records (ABCMR) 1 denying him an upgraded discharge was arbitrary, capricious, unsupported by substantial evidence, and erroneous as a matter of law. The district court granted appellees' motion to dismiss on grounds that Geyen's suit was barred by statute of limitation and by laches. Geyen v. Marsh, 587 F.Supp. 539 (W.D.La.1984). Geyen appeals the district court's order. We affirm in part, reverse in part, and remand to the district court for further consideration of Geyen's second claim.

I. FACTS

Geyen enlisted in the United States Army Reserve in 1964 and served uneventfully until 1968. Early that year the Army notified Geyen that he had accumulated five or more unexcused absences from mandatory training assemblies and ordered him to active duty. For unknown reasons, the order was not executed. The Army issued Geyen new orders on February 25, 1969, and he reported to active duty on April 30, 1969. After a brief stint in Germany, Geyen was granted a compassionate reassignment and returned to Fort Polk, Louisiana.

In January 1970 Geyen requested a hardship discharge from the Army so that he could care for his ailing parents. The Army denied the request. Geyen reapplied in February 1970 and was again denied. While this second request was under consideration. Geyen went AWOL. He returned to military control in 1972. On August 14, 1972, Geyen requested that he be discharged from the Army in lieu of a court-martial. The Army gave Geyen an undesirable discharge on August 22, 1972.

On April 13, 1977, Geyen applied to the Department of Defense Discharge Review Program (Special) for an upgrade of his discharge. The Special Review Board denied relief on July 8, 1977, and notified Geyen of its decision on September 22, 1977. On December 12, 1978, the Department of Defense informed Geyen that he was entitled to a new review of his discharge. 2 Geyen petitioned the Army Discharge Review Board (ADRB) for an upgrade on December 17, 1979. After a hearing, the ADRB found against Geyen. The Board notified him of its decision on April 7, 1981, and informed him of his right to seek further review from the ABCMR. On February 26, 1982, Geyen petitioned the ABCMR for an upgrade. The ABCMR denied relief without a hearing on July 28, 1982, and informed Geyen of its decision on August 26, 1982. Geyen filed suit in the district court on August 24, 1983. He does not seek any monetary relief.

II. STATUTE OF LIMITATIONS

At the outset we must draw a distinction between two avenues of relief available in federal court to a former serviceman seeking to upgrade his discharge. First, after exhausting his administrative remedies, he may seek declaratory and injunctive relief against his branch of the service, alleging that his discharge violated the Constitution, statute, or service regulations. See Nichols v. Hughes, 721 F.2d 657 (9th Cir.1983); cf. Walters v. Secretary of Defense, 725 F.2d 107 (D.C.Cir.1983) (not requiring exhaustion). Second, he may seek review of an adverse decision of the ADRB or ABCMR. A federal court may reverse a decision of these boards if it is arbitrary, capricious, or not supported by substantial evidence. Chappel v. Wallace, 462 U.S. 296, 103 S.Ct. 2362, 2367, 76 L.Ed.2d 586 (1983); Hodges v. Callaway, 499 F.2d 417, 423 (5th Cir.1974).

Geyen's complaint in the district court pursues both avenues of relief. 3 He alleges constitutional violations and procedural irregularities in his activation and in the denials of his hardship applications, and he challenges the ABCMR's decision denying him relief in 1982. We consider separately the statute of limitations problems presented by these two causes of action.

A. Geyen's Challenge to His Activation and the Denial of His Hardship Applications

Geyen's first cause of action presents two issues: First, does the six-year statute of limitations in 28 U.S.C. Sec. 2401(a) (1982) govern this action? If so, when did Geyen's action accrue for purposes of Sec. 2401(a)?

1. Application of the Six-Year Statute of Limitations

Amicus 4 argues that Sec. 2401(a) does not apply to this action because the statute governs only actions for damages under the Tucker Act, 28 U.S.C. Sec. 1346(a)(2), and because Geyen's action is not "against the United States." We reject both arguments. 5

a. Section 2401(a) and the Tucker Act

Amicus offers considerable legislative history to support its contention that Sec. 2401(a) applies only to Tucker Act actions. This history demonstrates, according to amicus, that the predecessor of Sec. 2401(a) applied only to Tucker Act claims and that when Congress enacted Sec. 2401(a) in 1948 as part of the Judicial Code, it intended to retain this restriction. Several federal courts have rejected the argument that Sec. 2401(a) applies only to Tucker Act actions. See Christensen v. United States, 755 F.2d 705, 707 (9th Cir.1985); Walters, 725 F.2d at 111-14; Impro Products, Inc. v. Block, 722 F.2d 845, 850 n. 8 (D.C.Cir.1983), cert. denied, --- U.S. ----, 105 S.Ct. 327, 83 L.Ed.2d 264 (1984); Werner v. United States, 188 F.2d 266, 268 (9th Cir.1951).

Moreover, amicus' analysis of Sec. 2401(a)'s legislative history, although extensive, is incomplete. The Federal Rules of Civil Procedure, adopted in 1938, accomplished the merger of law and equity. Fed.R.Civ.P. 1, 2. Congress undoubtedly took account of this merger when it replaced the word "suit" in the statutory predecessor of Sec. 2401(a) with the phrase "every civil action" in the current statute. See Saffron v. Department of the Navy, 561 F.2d 938, 946 (D.C.Cir.1977) (McGowan, J., concurring), cert. denied, 434 U.S. 1033, 98 S.Ct. 765, 54 L.Ed.2d 780 (1978); Werner, 188 F.2d at 268. This change in language indicates Congress' intent that Sec. 2401(a) apply to both legal and equitable actions. Thus, we reject amicus' contention that Sec. 2401(a) applies only to Tucker Act actions.

b. Action Against the United States

Amicus argues that an action such as Geyen's against a federal official alleging that the official has acted unlawfully and seeking injunctive relief is not an "action ... against the United States" within the meaning of Sec. 2401(a). Before 1976 this ultra vires theory might have been valid; to avoid the bar of sovereign immunity, courts indulged in the fiction that a federal official acting in violation of the Constitution or beyond his statutory powers was acting for himself only and not as an agent of government. See, e.g., Dugan v. Rank, 372 U.S. 609, 621-22, 83 S.Ct. 999, 1007, 10 L.Ed.2d 15 (1963); Larson v. Domestic & Foreign Commerce Corp., 337 U.S. 682, 689-90, 69 S.Ct. 1457, 1461-62, 93 L.Ed. 1628 (1949).

In 1976, however, Congress waived sovereign immunity for suits seeking nonmonetary relief through nonstatutory judicial review of agency action. Act. of Oct. 21, 1976, Pub.L. No. 94-574, Sec. 1, 90 Stat. 2721, 2721 (codified at 5 U.S.C. Sec. 702 (1982)). The principal purpose of this amendment was to do away with the ultra vires doctrine and other fictions surrounding sovereign immunity. As the House Report notes, "Actions challenging official conduct are intrinsically against the United States and are now treated as such for all practical purposes." H.R.Rep. No. 1656, 94th Cong., 2d Sess. 11 (1976), reprinted in 1976 U.S.Code Cong. & Ad.News 6121, 6131.

Were we to hold, as amicus urges, that Geyen's action is not against the United States, we would revive the technical complexities that Congress sought to eliminate in 1976. We decline to do so. We hold that Geyen's action challenging his activation and the denial of his hardship applications is against the United States and subject to Sec. 2401(a)'s six-year limitation.

2. Accrual of the Right of Action

Geyen contends that his first cause of action accrued in 1982 when he exhausted his administrative remedies. He notes that this Court requires exhaustion of administrative remedies before military action may be reviewed in federal court, Hodges v. Callaway, 499 F.2d 417, 419-20 (5th Cir.1974), and cites cases in which other courts requiring exhaustion have held that a serviceman's action challenging his discharge accrues when the ABCMR takes its final action. Lichtenfels v. Orr, 604 F.Supp. 271, 276 (S.D.Ohio 1984); Kaiser v. Secretary of the Navy, 525 F.Supp. 1226, 1229-30 (D.Colo.1981).

Appellees urge that Geyen's action accrued, at the latest, in 1972 when he was discharged. They acknowledge the exhaustion requirement, but contend that the proper approach is to toll the statute of limitations while agency proceedings are pending. They point to several cases that have adopted this approach. Nichols, 721 F.2d at 660; Mosley v. Secretary of the Navy, 522 F.Supp. 1165, 1167 n. 5 (E.D.Pa.1981), aff'd mem., 688 F.2d...

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