Chilcott v. Orr, 84-1178

• Decision Date: 24 October 1984
• Docket Number: No. 84-1178,84-1178
• Citation: 747 F.2d 29
• Parties: Mark P. CHILCOTT, Plaintiff, Appellee, v. Verne ORR, Secretary of the United States Air Force, Defendant, Appellant.
• Court: U.S. Court of Appeals — First Circuit

Page 29

747 F.2d 29

Mark P. CHILCOTT, Plaintiff, Appellee, v. Verne ORR, Secretary of the United States Air Force Defendant, Appellant.

No. 84-1178.

United States Court of Appeals First Circuit.

Argued Sept. 10, 1984.

Decided Oct. 24, 1984.

Al J. Daniel, Jr., Civ. Div., Dept. of Justice, Washington, D.C., W. Stephen Thayer, III, U.S. Atty., Concord, N.H., Richard K. Willard, Acting Asst. Atty. Gen., and Anthony J. Steinmeyer, Civ. Div., Dept. of Justice, Washington, D.C., were on the brief, for defendant, appellant.

John L. Ahlgren, Concord, N.H., for plaintiff, appellee.

Before CAMPBELL, Chief Judge, BREYER, Circuit Judge, and SKELTON, ^* Senior Circuit Judge.

SKELTON, Senior Circuit Judge.

This is an appeal by the Secretary of the Air Force challenging a preliminary injunction granted by the District Court for the District of New Hampshire in favor of appellee Mark P. Chilcott. We reverse and vacate the decision of the District Court.

I. BACKGROUND

Appellee Chilcott is an enlisted airman who worked on sensitive computer systems for medium range bombers at Pease Air Force Base, New Hampshire. On April 20, 1983, while on leave, Chilcott was arrested for selling a small quantity of L.S.D. to an undercover police officer at a rock concert in Providence, Rhode Island. The substance sold to the agent was confirmed to be L.S.D. by the police toxicology lab, although Chilcott's urinalysis test was negative.

Chilcott was released to the Air Force on or about April 22, 1983, and his unit commander ordered an investigation after receiving the arrest report from the police. A Rhode Island felony charge was initially filed against him, but this was later changed to a misdemeanor charge of "possession of a habit forming drug without a prescription." On September 2, 1983, Chilcott pled not guilty to the charge, with the understanding that the case would remain on the court docket for one year, at the end of which period the record would be expunged.

On November 14, 1983, after the staff Judge Advocate's office had obtained all pertinent records concerning Chilcott's arrest and prosecution, his unit commander notified him by letter that he was recommending that Chilcott be discharged from the Air Force for misconduct related to drug abuse. The letter advised plaintiff that (1) the discharge was proposed under Air Force Regulation 39-10, Chap. 5, Section H, p 5-49; (2) the discharge could be either honorable or general, but that he was recommending a general discharge; (3) plaintiff could obtain civilian counsel at his own expense and that an appointment had been made with military counsel for him; and (4) that plaintiff could submit any statements he wished to be considered by the base commander.

A copy of the unit commander's discharge recommendation was attached to the notice sent to Chilcott. It stated that the reasons for the proposed discharge were Chilcott's arrest for selling L.S.D., the investigation report detailing his involvement with the sale of L.S.D., and his court case. Chilcott responded by written statement, denying the charges and requesting a hearing where he could confront the witnesses.

II. AIR FORCE PROCEDURES

Air Force regulations in effect between October 1, 1982, and October 1, 1983, (during which period Chilcott was arrested) required a board hearing prior to the administrative discharge of an airman. At this hearing the airman could present evidence and cross-examine the Air Force's witnesses. However, effective October 1, 1983, this provision was deleted and the administrative discharge procedures was amended to conform essentially to the procedure in effect prior to October 1, 1982. Under the newer procedures, an airman receives notification of the proposed discharge, indicating the character of discharge recommended. The airman may retain counsel and submit rebuttal statements, but no hearing is conducted at this point. A commander then considers the recommendation and rebuttal statements, and may approve the proposed discharge only if it is based upon a preponderance of the evidence.

If the discharge is approved, the airman has recourse to two Air Force administrative boards. The Air Force Discharge Review Board reviews applications for relief by airmen who were discharged administratively. It has the authority to change the discharge or to issue a new discharge according to its findings, although it cannot revoke a discharge. An applicant for relief has an absolute right to a hearing before this board, and may be represented by counsel and present witnesses. The Secretary of the Air Force may review the board's decisions, but must make his own written findings and conclusions, unless those of the board are adopted.

The Air Force Board for Correction of Military Records considers applications for relief and makes recommendations to the Secretary. A hearing before this board is discretionary. If a hearing is granted, the applicant may appear with counsel and present witnesses. On the board's recommendation, the Secretary may reinstate a discharged applicant and award back pay and other pecuniary benefits.

III. PROCEEDINGS AND DISPOSITION BELOW

Chilcott filed a petition in the District Court against the Secretary of the Air Force and his base commander on December 22, 1983, seeking damages, an injunction, a temporary restraining order and declaratory relief to prevent his discharge from the Air Force. The motion for a temporary restraining order was treated as one for a preliminary injunction, and an evidentiary hearing was held before the District Court on December 28, 1983. A preliminary injunction against the defendants was issued on January 3, 1984. The District Court found that Chilcott satisfied all of the criteria for the issuance of an injunction, and also stated that there appeared to be a serious constitutional question because of an alleged retroactive application of Air Force regulations and because there was no provision for a pre-discharge hearing. Chilcott has been relieved of his regular duties by the Air Force and has been reassigned as a bay orderly pending this appeal.

IV. ANALYSIS

The courts historically have been reluctant to interject themselves into the internal affairs of the armed forces. Interference by the judiciary with the administration of the military would undermine this nation's ability to maintain a disciplined and ready fighting force. As the Supreme Court has stated,

... judges are not given the task of running the Army. The responsibility for setting up channels through which such grievances can be considered and fairly settled rests upon the Congress and upon the President of the United States and his subordinates. The military constitutes a specialized community governed by a separate discipline from that of the civilian. Orderly government requires that the judiciary be as scrupulous not to interfere with legitimate Army matters as the Army must be scrupulous not to intervene in judicial matters.

Orloff v. Willoughby, 345 U.S. 83, 93-94, 73 S.Ct. 534, 539-40, 97 L.Ed. 842 (1953).

10 U.S.C. Sec. 1169 (1982) gives the Secretary of the Air Force the authority to prescribe the conditions and procedures under which an airman may be discharged before his term of service expires. Congress has not set any limitation upon the Secretary's authority to prescribe these conditions and procedures. It would be singularly inappropriate for the courts to dictate the procedures required in these circumstances in light of the special nature of the military. The circumstances would have to be exceptional to warrant such an intrusion.

A. Criteria for granting a preliminary injunction.

In the case of Sampson v. Murray, 415 U.S. 61, 94 S.Ct. 937, 39 L.Ed.2d 166 (1974), the Supreme Court considered whether a district court had authority to grant interim injunctive relief to a civilian federal probationary employee pending an administrative appeal to the Civil Service Commission. The employee had been notified that she would be discharged on a certain date from her position with the General Services Administration. The Court held that while the district courts were not wholly prevented from granting injunctive relief in such cases, the employee would be required to make a stronger showing of irreparable harm than in other cases before relief would be granted. The Court also acknowledged the four criteria to be considered when reviewing an application for a preliminary injunction: (1) strong showing of likelihood of success on the merits; (2) irreparable harm to plaintiff if relief is not granted; (3) lack of harm to the opposing party; and (4) consideration of the public interest.

While we recognize that Sampson dealt with the rights of civilian probationary employees, not servicemen, we nevertheless think that the rule in Sampson should be applied to military personnel. Servicemen are similar to civilian probationary employees in that "cause" is not a statutory criterion for their dismissal. See 5 U.S.C. Sec. 7501; 10 U.S.C. 1169. Congress, in allowing servicemen to be discharged upon such terms as the Secretary should prescribe, clearly indicated that military discharge proceedings...