Guerra v. Scruggs

Decision Date09 August 1991
Docket NumberNo. 90-1164,90-1164
Citation942 F.2d 270
PartiesRigoberto GUERRA, Jr., Private, United States Army, Plaintiff-Appellee, v. Hugh F. SCRUGGS, Colonel, Commanding Officer, 7th Special Forces Group, United States Army; Michael W.P. Stone, Secretary of the U.S. Army, and their respective successors, in their official capacity, Defendants-Appellants.
CourtU.S. Court of Appeals — Fourth Circuit

Robert V. Zener, Civ. Div., U.S. Dept. of Justice, Washington, D.C., argued (Stuart M. Gerson, Asst. Atty. Gen., Anthony J. Steinmeyer, Civ. Div., U.S. Dept. of Justice, Washington, D.C., Margaret P. Currin, U.S. Atty., Raleigh, N.C., Lt. Col. Mark A. Steinbeck, Major Raymond J. Jennings, Jr., Office of the Judge Advocate General, Dept. of the Army, Washington, D.C., on brief), for defendants-appellants.

Mark L. Waple, Hutchens & Waple, Fayetteville, N.C., for plaintiff-appellee.

Before ERVIN, Chief Judge, HILTON, District Judge for the Eastern District of Virginia, sitting by designation, and HALLANAN, District Judge for the Southern District of West Virginia, sitting by designation.

OPINION

ERVIN, Chief Judge:

Private Rigoberto Guerra brought suit against Col. Hugh F. Scruggs, Commanding Officer of the 7th Special Forces Group at Fort Bragg, and Michael Stone, Secretary of the Army, in the United States District Court for the Eastern District of North Carolina. He sought a temporary restraining order and a preliminary injunction to prevent his discharge from the Army. Guerra challenged the procedures by which Col. Scruggs decided to discharge Guerra with a general discharge discharge under honorable conditions for cocaine usage and absence from duty due to alcohol intoxication. Guerra alleged that the procedures violated the Due Process Clause and the Equal Protection Clause.

The district court first granted a temporary restraining order and then granted a preliminary injunction against the defendants, 747 F.Supp. 1160, enjoining them from "discharging or separating plaintiff from active duty with the United States Army pending a disposition of this action on its merits or the granting of a meaningful hearing before the administrative elimination board pursuant to Army Regulation 635-200." Scruggs and Stone appealed from this order.

We find that the district court erred in granting the injunction in this case. Therefore, we reverse.

I

Private Guerra was a member of D Company, 2d Battalion, 7th Special Forces Group (Airborne), stationed at Fort Bragg. He received the Army Achievement Medal on two occasions and was named as the "Soldier of the Year" for Fiscal Year 1990 in his military organization at Fort Bragg. However, on October 29, 1989, Guerra missed a P.T. formation due to alcohol intoxication. On April 23, 1990, Guerra tested positive for cocaine use. Guerra accepted nonjudicial punishment pursuant to Article 15 of the Uniform Code of Military Justice (UCMJ) for his cocaine use. The punishment was as follows: reduction in rank, 45 days restriction and extra duty, and forfeiture of one-half of his monthly basic pay for a period of two months.

Under Article 15, UCMJ, Guerra could have refused the nonjudicial proceedings and demanded trial by court-martial. Manual for Courts-Martial, United States, para. 3 (1984). If Guerra had made such a demand, he would have been entitled to a court-martial before any punishment could be imposed. Guerra did not demand a courtmartial. Rather, he voluntarily accepted proceedings under Article 15.

After the Article 15 proceedings were completed, Guerra received a notice of proposed separation from Captain Akers, Commanding Officer of D Company. Grounds for the proposed separation were the positive test for cocaine use and the missed P.T. formation due to alcohol intoxication. Captain Akers stated that he would recommend a general discharge.

The notice of proposed separation informed Guerra of the following procedural rights:

5. You have the right to consult with a military counsel at no cost, and with civilian counsel at no expense to the Government within a reasonable time (not less than 3 duty days).

6. You may submit written statements in your behalf.

7. You may obtain copies of documents that will be sent to the separation authority supporting the proposed separation. (Classified documents may be summarized.)

In response to the notice of proposed separation, Guerra did not deny using cocaine, but instead pleaded that his mistake had been paid for by the Article 15 punishment. Guerra requested a hearing before an administrative elimination board. Because he had not served in the Army for at least 6 years, Guerra was not entitled to such a hearing. Army Reg. 635-200 § 2-2d (1989).

Guerra submitted ten statements from other soldiers in support of his plea of leniency. After reviewing these statements, Colonel Scruggs, Commanding Officer of the 7th Special Forces Group, approved the recommendation for a general discharge of Guerra. 1

A person in Guerra's position has two avenues of appeal within the Army structure. First, he may appeal to the Army Discharge Review Board (ADRB) which was established pursuant to 10 U.S.C. § 1553 and Army Regulation 15-180. An applicant seeking relief from this board has an absolute right to a hearing before the board, and may be represented by counsel and present witnesses. Chilcott v. Orr, 747 F.2d 29, 32 (1st Cir.1984). The ADRB has authority to change a discharge or to issue a new discharge, but it does not have authority to reverse or vacate a discharge. In addition, the ADRB has no authority to rule on constitutional challenges to the Army's regulations. Second, Guerra could appeal to the Army Board for Correction of Military Records (ABCMR) which was established pursuant to 10 U.S.C. § 1552 and Army Regulation 15-185. The ABCMR has statutory authority to "correct any military record of the Secretary's department when the Secretary considers it necessary to correct an error or remove an injustice." 10 U.S.C.A. § 1552(a)(1) (1991 West Supp.). The ABCMR also "may, subject to review by the Secretary concerned, change a discharge or dismissal, or issue a new discharge, to reflect its findings." 10 U.S.C.A. § 1553(b) (1983). The ABCMR has authority to consider claims of constitutional, statutory, and regulatory violations. 32 C.F.R. § 581.3(c)(5)(v) (1990). Guerra did not use either of the above administrative procedures to challenge his discharge. Instead, he sought an injunction in the district court to prevent his discharge.

The district court granted a temporary restraining order and thereafter granted a preliminary injunction against Guerra's discharge. The court concluded that the balance of equities and the merits of the case supported a preliminary injunction. Scruggs and Stone appealed to this court from the district court's order granting the preliminary injunction. During the pendency of this appeal, by virtue of the preliminary injunction, Guerra continued to serve in the Army. On April 4, 1991, his original term of service expired and he was discharged. The classification of his discharge has not been finalized as it is contingent upon the outcome of this appeal.

II

Normally, the trial court standard for injunctive relief is the balance-of-hardship test. North Carolina State Ports Authority v. Dart Containerline Co., 592 F.2d 749, 750 (4th Cir.1979). There are four factors which enter into the determination of whether interim injunctive relief should be granted: (1) whether the plaintiff will suffer irreparable injury if interim relief is not granted; (2) the injury to the defendant if an injunction is issued; (3) the plaintiff's likelihood of success in the underlying dispute between the parties; and (4) the public interest. Id. at 750; Jones v. Board of Governors of University of North Carolina, 704 F.2d 713, 715 (4th Cir.1983).

A

In Sampson v. Murray, 415 U.S. 61, 94 S.Ct. 937, 39 L.Ed.2d 166 (1974), the Supreme Court addressed the amount of irreparable harm which must be shown in the context of the discharge of a civilian employee. There, the Court stated that the lower courts were "quite wrong in routinely applying to [the] case the traditional standards governing more orthodox 'stays.' " Id. at 83-84, 94 S.Ct. at 950, 39 L.Ed.2d at 183. The Court explained its rationale:

Although we do not hold that Congress has wholly foreclosed the granting of preliminary injunctive relief in such cases, we do believe that respondent at the very least must make a showing of irreparable injury sufficient in kind and degree to override these factors cutting against the general availability of preliminary injunctions in Government personnel cases.

Id. at 84, 94 S.Ct. at 950, 39 L.Ed.2d at 183. Turning to the issue of irreparable harm in Sampson, the Court stated:

Assuming for the purpose of discussion that respondent had made a satisfactory showing of loss of income and had supported the claim that her reputation would be damaged as a result of the challenged agency action, we think the showing falls far short of the type of irreparable injury which is a necessary predicate to the issuance of a temporary injunction in this type of case.

Id. at 91-92, 94 S.Ct. at 953-54, 39 L.Ed.2d at 187. The Court noted in a footnote that there might be a circumstance where the discharge of a government employee, together with the resulting effects of the discharge, might meet the irreparable injury test. Id. at 92 n. 68, 94 S.Ct. 953 n. 68, 39 L.Ed.2d at 187 n. 68.

Sampson indicates that in the context of discharges of military employees, plaintiffs might likewise have an increased burden of showing irreparable injury. Other circuits have applied Sampson to military discharges in this way. See Hartikka v. United States, 754 F.2d 1516, 1518 (9th Cir.1985) (holding that Sampson's higher standard of irreparable injury applies to military personnel); Chilcott v. Orr, 747 F.2d 29, 33 (1st Cir.1984) (holding...

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