Cooney v. Dalton, Civ. No. 95-00003 DAE.

• Citation: 877 F. Supp. 508
• Decision Date: 05 January 1995
• Docket Number: Civ. No. 95-00003 DAE.
• Parties: Michael S. COONEY, Plaintiff, v. John H. DALTON, Secretary of the Navy; Vice Admiral F.L. Bowman, Chief of Naval Personnel; Rear Admiral Gordon S. Holder, Commander Naval Base, Pearl Harbor; Captain Kraig Kennedy, Commanding Officer, Naval Station Pearl Harbor; Lieutenant Commander Rita L. Johnston; Ensign David K. Nuhfer; Engineman Senior Chief Loren C. Warner; and John Does 1-25, Defendants.
• Court: U.S. District Court — District of Hawaii

877 F. Supp. 508

Michael S. COONEY, Plaintiff, v. John H. DALTON, Secretary of the Navy; Vice Admiral F.L. Bowman, Chief of Naval Personnel; Rear Admiral Gordon S. Holder, Commander Naval Base, Pearl Harbor; Captain Kraig Kennedy, Commanding Officer, Naval Station Pearl Harbor; Lieutenant Commander Rita L. Johnston; Ensign David K. Nuhfer; Engineman Senior Chief Loren C. Warner; and John Does 1-25, Defendants.

Civ. No. 95-00003 DAE.

United States District Court, D. Hawai`i.

January 5, 1995.

Eric A. Seitz, Honolulu, HI, for plaintiff.

Thomas A. Helper, Asst. U.S. Attys. Office, Honolulu, HI, for defendants.

ORDER GRANTING PLAINTIFF'S MOTION FOR A TEMPORARY RESTRAINING ORDER

DAVID ALAN EZRA, District Judge.

The court heard Plaintiff's motion on January 5, 1995. Eric Seitz, Esq., appeared on behalf of Plaintiff; Mark Helper, Esq., appeared on behalf of Defendants. After reviewing the motion and the supporting and opposing memoranda, the court GRANTS Plaintiff's Motion for a Temporary Restraining Order.

BACKGROUND

Plaintiff enlisted in the United States Navy in 1975 and has served for more than eighteen years. Until late 1993, he had received only exemplary performance evaluations. Plaintiff is currently a Boatswains Mate Chief ("BMC") and is assigned to duties at Pearl Harbor on a current enlistment that expires in 1998.

On November 19, 1993, following a random urine analysis, Plaintiff was charged with the use of cocaine. Plaintiff has never before tested positive for drugs. Plaintiff requested a special court-martial, which was conducted at Pearl Harbor Naval Base on March 7, 1994. At the conclusion of the evidence by the prosecution, the military judge ruled that the government had failed to produce any evidence that the cocaine in Plaintiff's urine constituted wrongful use of cocaine and found Plaintiff "not guilty."

The judge denied the prosecutor's request to reopen his case and present expert testimony on the meaning of the urinalysis. The judge stated that "there is no evidence for me to conclude that the cocaine or its metabolite was not naturally produced by the accused's body or as a result of another substance consumed by him." See Commanding Officer Approval of Recommendation of Administrative Separation, attached as Exhibit D to Plaintiff's Motion for Temporary Restraining Order, at 2 (quoting military judge).

Plaintiff alleges that the prosecutor and certain members of the administrative board were angry that the judge had ruled for Plaintiff. On August 31, 1994, Plaintiff was directed to appear before an administrative discharge board. That board determined that the Plaintiff should be discharged under "other than honorable conditions" based on his wrongful use of cocaine.

At the administrative discharge proceedings, the board did not permit the Plaintiff to call a witness who had been present at the special court martial but had subsequently relocated to Australia. This witness did submit a sworn statement to the effect that, unbeknownst to Plaintiff, she had put cocaine in Plaintiff's drink. The board reviewed a statement by the prosecutor impeaching credibility of this witness' sworn statement. The board also heard evidence that Plaintiff, on the advice of counsel, had refused to take a polygraph test.

The board's recommendation to separate Plaintiff from the Navy under "other than honorable" conditions for "misconduct due to drug abuse" were reviewed and affirmed by the Navy chain of command through the Secretary of the Navy. Plaintiff is currently scheduled to be released from active duty and discharged from the Navy under "other than honorable" conditions on January 6, 1995. Plaintiff has not applied to the Board of Correction of Naval Records (BCNR).

Plaintiff alleges that he will lose all of his military retirement and other benefits. He also contends that the discharge will brand him as a drug user, severely prejudicing any attempt to find other employment.

STANDARD OF REVIEW

Temporary restraining orders are issued to preserve the status quo and prevent irreparable harm. Granny Goose Foods, Inc. v. Brotherhood of Teamsters & Auto Truck Drivers Local No. 70, 415 U.S. 423, 439, 94 S.Ct. 1113, 1124, 39 L.Ed.2d 435 (1974). The Ninth Circuit authorizes the court to issue a temporary restraining order if: (1) the motion raises serious questions on the merits; and (2) the balance of hardships tips sharply in the moving party's favor. Los Angeles Memorial Coliseum Comm'n v. National Football League, 634 F.2d 1197, 1202 (9th Cir.1980). However, in the military context, the test for injunctive relief is much more stringent than the normal test for injunction. Sebra v. Neville, 801 F.2d 1135, 1139 (9th Cir.1986) (insufficient hardship shown).

DISCUSSION

I. Serious Questions on the Merits

A. Justiciability

Only in certain extraordinary circumstances will a federal court intrude into military matters. "Federal courts restrict their review of military decision-making not because they lack jurisdictional power to hear military disputes, but out of deference to the special function of the military in our constitutional structure and in the system of national defense." Sebra v. Neville, 801 F.2d at 1140.

However, military discharge decisions are subject to judicial review. Muhammad v. Secretary of Army, 770 F.2d 1494, 1495 (9th Cir.1985) (citing Denton v. Secretary of the Air Force, 483 F.2d 21, 24 (9th Cir.1973), cert. denied, 414 U.S. 1146, 94 S.Ct. 900, 39 L.Ed.2d 102 (1974); Schlanger v. United States, 586 F.2d 667, 671 (9th Cir.1978), cert. denied, 441 U.S. 943, 99 S.Ct. 2161, 60 L.Ed.2d 1045 (1979)).

Except in certain extraordinary circumstances, the Ninth Circuit requires exhaustion of an agency's remedies before it will review an administrative decision. Muhammad, 770 F.2d at 1495 (citing Myers v. Bethlehem Shipbuilding Corp., 303 U.S. 41, 51-52, 58 S.Ct. 459, 464, 82 L.Ed. 638 (1938)). "Strict application of the exhaustion requirement in military discharge cases maintains the balance between military authority and the federal courts." Id. (citing Von Hoffburg v. Alexander, 615 F.2d 633, 637 (5th Cir. 1980)).

Defendants contend that Plaintiff's failure to make an application to the Board for Correction of Naval Records (BCNR) renders this action unripe. The BCNR was established pursuant to the authority vested in the Secretary of the Navy under 10 U.S.C. § 1552. It is empowered to consider all applications before it requesting a correction of an error or injustice in the naval records of the individual named in the application. The BCNR is empowered to recommend reinstatement and back pay. See 32 C.F.R. § 723 et seq. In Muhammad, the Ninth Circuit noted the failure of the plaintiff to apply to the Army equivalent of the BCNR in finding that the plaintiff had failed to exhaust his administrative remedies. 770 F.2d at 1495. See also Guitard v. U.S. Secretary of Navy, 967 F.2d 737, 741 (2nd Cir. 1992) (the plaintiff's failure to make application to the BCNR meant that he had not exhausted his administrative remedies and the district court therefore should not have intervened by granting injunctive relief).

However, there are four circumstances in which exhaustion will not be required: (1) if the remedies do not provide an opportunity for adequate relief; (2) if the petitioner will suffer irreparable harm if compelled to seek administrative relief; (3) if administrative appeal would be futile; or (4) if substantial constitutional questions are raised. Muhammad, 770 F.2d at 1495 (citation omitted). As discussed below, the court finds that substantial constitutional questions have been raised concerning due process and double jeopardy. Moreover, the court also discusses below the irreparable harm the Plaintiff will suffer without review of the discharge.¹ Because the court makes these findings, it will not deny the motion based on a failure to exhaust remedies.

B. Scope of Review

"The federal courts do not sit to run the Navy." Denton v. Secy. of the Air Force, 483 F.2d 21, 24 (9th Cir.1973). The Navy "is entitled to discharge an officer on grounds rationally related to the standards of fitness for retention in that branch of the service." Id.

In Johnson v. Orr, 617 F.Supp. 170 (E.D.Cal.1985), aff'd, 787 F.2d 597 (9th Cir. 1986), the plaintiff moved for a preliminary injunction requiring the defendants to reinstate her. Citing to benShalom v. Secretary of Army, 489 F.Supp. 964, 971 (E.D.Wisc. 1980), the court described the tenor for review. "The courts are extremely reluctant to interfere with the military's exercise of direction over its internal affairs. This is particularly so when the military makes personnel changes, pursuant to its regulations, through its promotion or discharge processes." Johnson v. Orr, 617 F.Supp. at 172 (citing Dilley v. Alexander, 603 F.2d 914, 919-20 (D.C.Cir.1979), clarified on other grounds by, 627 F.2d 407 (1980)).

However, the court continued, restricted judicial review is not the equivalent of no judicial review. Id. "Courts will review, without hesitation, cases in which it is alleged that the military violated the Constitution, applicable statutes, or its own regulations." Id. (citing to Dilley v. Alexander, 603 F.2d at 920; Harmon v. Brucker, 355 U.S. 579, 78 S.Ct. 433, 2 L.Ed.2d 503 (1958); Mindes v. Seaman, 453 F.2d 197, 199 (5th Cir.1971)). "It is established, of course, that the federal courts have the power and the duty to inquire whether a military discharge was properly issued under the Constitution, statutes, and regulations." Id. (quoting Matlovich v. Secretary of Air Force, 591 F.2d 852, 859 (D.C.Cir.1978)). Therefore, this court reviews the discharge for its compliance with the Constitution, statutes and regulations.

C. Regulations and Due Process

Plaintiff claims that by acting in violation of Naval regulations, the Navy violated his due process rights. See Complaint, at ¶¶ 25-31. First, Plaintiff alleges that the...