Dilley v. Alexander, s. 77-1789

• Decision Date: 15 May 1980
• Docket Number: Nos. 77-1789,77-1790,77-1791 and 77-1792,s. 77-1789
• Parties: Michael F. DILLEY, Captain, U. S. Army Reserve, et al., Appellants, v. Clifford L. ALEXANDER, Jr., Secretary of the Army, et al. Raymond W. FONTAINE, Major, U. S. Army Reserve, et al., Appellants, v. Clifford L. ALEXANDER, Jr., Secretary of the Army, et al. Milton D. O'QUINN, Appellant, v. Clifford L. ALEXANDER, Secretary of the Army. Major Russell A. POWELL, Appellant, v. Clifford L. ALEXANDER, Jr., Secretary of the Army.
• Court: U.S. Court of Appeals — District of Columbia Circuit

Page 407

627 F.2d 407

200 U.S.App.D.C. 354

Michael F. DILLEY, Captain, U. S. Army Reserve, et al., Appellants, v. Clifford L. ALEXANDER, Jr., Secretary of the Army, et al.

Raymond W. FONTAINE, Major, U. S. Army Reserve, et al., Appellants, v. Clifford L. ALEXANDER, Jr., Secretary of the Army, et al.

Milton D. O'QUINN, Appellant, v. Clifford L. ALEXANDER, Secretary of the Army.

Major Russell A. POWELL, Appellant, v. Clifford L. ALEXANDER, Jr., Secretary of the Army.

Nos. 77-1789, 77-1790, 77-1791 and 77-1792.

United States Court of Appeals, District of Columbia Circuit.

May 15, 1980.

Keith A. Rosenberg, Washington, D. C., was on motion for clarification of opinion, for appellants.

Charles F. C. Ruff, U. S. Atty., Royce C. Lamberth and John Oliver Birch, Asst. U. S. Attys., Washington, D. C., were on response to motion for clarification of opinion.

Before WRIGHT, Chief Judge, MacKINNON and ROBB, Circuit Judges.

Opinion for the Court filed by Circuit Judge MacKINNON.

MacKINNON, Circuit Judge:

Appellants Michael F. Dilley, et al., move this court for clarification of the opinion of February 26, 1979, ¹ reversing the district court and holding the Army's Selection Board to have been constituted in direct violation of the statute. We ordered that appellants be reinstated to active duty and that the Army consider them for promotion by two promotion selection boards constituted in accordance with applicable laws.

Appellants' motion for clarification asserts that the Army has taken the position that appellants' reinstatement need not be retroactive. Because appellants' decision whether or not to return to active duty will depend in part upon this determination, and because the Army's position is contrary to the intent of our opinion and the general rule governing reinstatement after illegal discharge from the armed services, we clarify our opinion: appellants are to be retroactively reinstated with full active duty back pay, allowances and other benefits of constructive service, as more fully set forth herein.

I.

Appellants are commissioned officers in the Army Reserve who served on active duty until their involuntary release in early 1977. Their release occurred because they were twice passed over for promotion to the next highest temporary grade by Army promotion selection boards convened in 1975 and 1976. ² After notice of their imminent release, appellants initiated this suit in federal district court contending, inter alia, that their release was void under 10 U.S.C. § 266, which provides that each board convened for the purpose of promotion of Reserve members shall include an appropriate number of Reserve officers.

Prior to their actual release, appellants filed with the district court a motion for a preliminary injunction to prevent their separation from the service. The Army opposed the motion, contending that appellants would not suffer irreparable harm because "all pay, allowances, and seniority rights can be restored if Plaintiffs ultimately prevail on the merits." Defendants' Memorandum of Points of Authorities in Opposition to Plaintiffs' Motion for a Preliminary Injunction at 10. On the basis of this representation the district court denied appellants' motion, Dilley v. Alexander, 440 F.Supp. 375, 377 (D.D.C.1977), and appellants were released from active duty in the spring of 1977.

The district court subsequently granted the Army's motion for summary judgment on July 27, 1977, 440 F.Supp. 375, and upheld the determination of the Army Board for Correction of Military Records that the absence of Reserve officers on the selection boards was neither arbitrary, capricious nor contrary to law and at most constituted harmless error. 440 F.Supp. at 378-79.

On February 26, 1979, we reversed the decision of the district court, ruling that appellants' nonselection for promotion by the 1975 selection board was invalid because of the absence of Reserve officers among the board's members, that the 1976 Selection Board's failure to promote appellants was invalid because it "had before (it) records that reflected appellants' nonselection in 1975 even though appellants had never been lawfully passed over", 603 F.2d 914, 924 (D.C.Cir.1979), and that appellants' nonselection by the Army's Reconstituted Selection Board was invalid because that board had substantially fewer promotion vacancies to fill than the original 1975 selection board. In conclusion, we held,

that the Corrections Board's treatment of appellants' claims was contrary to law and that the Secretary's actions thereon were arbitrary and capricious. Because the Army's gross violation of the statute and regulations governing its promotion selection procedures adversely affected appellants' consideration for promotion in 1975 and 1976, appellants are entitled to be reinstated to active duty and to be considered again by two promotion selection boards constituted in accordance with applicable statutes and regulations.

603 F.2d at 925.

We denied the Army's petition for rehearing, issuing an order and opinion per curiam, which was printed following the original panel decision, 603 F.2d 925 (1979). A motion for leave to file a second petition for rehearing we denied on July 26, 1979. The opinion in lieu of mandate was transmitted to the district court on November 21, 1979.

With the case in this posture in the district court, appellants filed a motion to implement the mandate, requesting relief in the form of active duty back pay, retirement pay, quarters allowance, accrued leave, hazardous duty pay, and reimbursement for loss of post exchange privileges, commissary privileges and medical costs. Appellants also requested that the court order erasure of records that showed enlisted service on the part of those appellants who had remained in the Army in an enlisted status, and that all records, including those reflecting nonselection by the promotion selection boards, be corrected to put appellants in the position they would have occupied had the Army not engaged in its unlawful selection procedure.

The Army opposed appellants' motion, contending that appellants sought relief exceeding that granted by this court, and that the relief we granted did not contemplate retroactive reinstatement or the benefits of constructive service. In its order of February 29, 1979, the district court did not express agreement with the Army's contentions, but declined to render specific orders of relief, citing the reference in our opinion to "the restricted role of the judiciary with respect to the internal affairs of the military departments", 603 F.2d at 919, and remanded the case to the Secretary of the Army

with directions to implement the appropriate relief as required by law and by the opinion of the Court of Appeals, in particular, to reinstate the officer plaintiffs to active duty in a commissioned status in the grade and rank held at the time of their unlawful release, and, to the extent that retirements or resignations do not intervene, consider the plaintiffs anew by two properly constituted promotion selection boards.

The district court ordered the Secretary of the Army to implement the mandate within 120 days. ³

On March 10, 1980, appellants filed a motion to reopen the proceedings, or in the alternative, for the district court to clarify its opinion. Appellants cited a statement by the Office of the Judge Advocate General of the Army indicating that the Army did not view the order of the district court or our court's opinion as mandating retroactive reinstatement. The Army appeared before the district court at oral argument on March 25, 1980, and verified that this was indeed its position, arguing that the opinion of this court did not require retroactive reinstatement, and that the grant of such relief was within the discretion of the Secretary of the Army. Appellants' Motion for Clarification at 6. The district court denied appellants' motion to reopen the proceedings as premature, since the 120 day period in which the Army was to implement the court's order had not expired.

II.

Since the last order of the district court provided the Army with 120 days in which to implement our mandate, the Army jealously guards its current supervision of the relief to be provided the appellants. The Army contends that there are several obstacles to our present consideration of the case: first, the Army protests that clarification of our opinion will entail a recall of the mandate, and that there exists insufficient cause for doing so; second, the Army asserts that we have ceded control over our mandate to the district court, and cannot retrieve it, or, in the alternative, cannot retrieve it until the completion of the 120 days in which the Army is to implement the mandate. We find these alleged obstacles no obstruction to a recall of our mandate.

A.

The Army unabashedly maintains that our order that appellants be reinstated means precisely that and no more. They construe our opinion to grant appellants only the limited relief of non-retroactive reinstatement, and submit that appellants' motion for clarification invites a recall of our mandate. And, the Army argues, appellants have not shown the circumstances requisite for such a recall.

We address the standards governing the propriety of recall of a mandate that were discussed in Greater Boston Television Corporation v. FCC, 463 F.2d 268 (D.C.Cir.1971) cert. denied, sub nom., WHDH v. FCC, 406 U.S. 950, 92 S.Ct. 2042, 32 L.Ed.2d 338 (1972), by Judge Leventhal, who observed that the general doctrines underlying the recall of a mandate involve the court's power, procedure and grounds of action.

The power of a court to recall its mandate emanates not from the Federal Rules of Appellate Procedure or the Rules of our Circuit, ⁴ but from an inherent power to recall a mandate upon a showing of good cause, as most persuasively expressed by the likelihood of injustice. 463 F.2d at 276-77, citing Gradsky v. United...