Guerra v. Scruggs, 90-81-CIV-3-H.

• Decision Date: 27 September 1990
• Docket Number: No. 90-81-CIV-3-H.,90-81-CIV-3-H.
• Parties: Rigoberto GUERRA, Jr., Plaintiff, v. Hugh F. SCRUGGS, et al., Defendants.
• Court: U.S. District Court — Eastern District of North Carolina

747 F. Supp. 1160

Rigoberto GUERRA, Jr., Plaintiff, v. Hugh F. SCRUGGS, et al., Defendants.

No. 90-81-CIV-3-H.

United States District Court, E.D. North Carolina, Fayetteville Division.

September 27, 1990.

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

LTC Mark A. Steinbeck and Captain Raymond J. Jennings, Office of the Judge Advocate, Dept. of the Army, Washington, D.C., for defendants.

MALCOLM J. HOWARD, District Judge.

This matter is before the court on plaintiff's motion for a preliminary injunction pursuant to Rule 65, Fed.R.Civ.P. Plaintiff instituted the present action by a complaint filed on August 15, 1990, in which he seeks injunctive and declaratory relief to prevent his early discharge from active duty with the United States Army for testing positive on a urinalysis test and for failing to attend a P.T. formation due to alleged alcohol intoxication without being given a hearing prior to such discharge.

On August 17, 1990, a hearing was held upon plaintiff's motion for a temporary restraining order. All parties were represented by counsel and presented evidence and oral argument. The court rendered a ruling from the bench in which it granted plaintiff's motion for a temporary restraining order. On August 21, 1990, the court entered a written order memorializing its grant of plaintiff's motion for a temporary restraining order.

On August 30, 1990, a hearing was held upon plaintiff's pending motion for a preliminary injunction. All parties were represented by counsel and presented evidence and oral argument. After carefully reviewing the record in the case at bar and hearing oral argument, the court makes the following:

FINDINGS OF FACT

1. Plaintiff is a Private currently serving on active duty with the United States Army at Fort Bragg, North Carolina. On April 4, 1988, he enlisted for active duty with the United States Army for a 3-year term of enlistment. This 3-year term of service will expire on April 4, 1991.

2. On April 23, 1990, plaintiff tested positive for a controlled substance. Specifically, plaintiff tested positive for cocaine.

3. On May 21, 1990, plaintiff received nonjudicial punishment pursuant to the provisions of Article 15 of the Uniform Code of Military Justice for the alleged offense of wrongful use of illegal substances (cocaine). As punishment, plaintiff was reduced to E-1, received a restriction of 45 days and extra duty, and had half of his monthly pay forfeited for a period of two months.

4. On or around July 16, 1990, defendants formally notified plaintiff that he was to be separated from active military duty prior to the normal expiration of his service pursuant to Army Regulation 635-200, Chapter 14, paragraph 14-12c(2). Defendants informed plaintiff that he was being separated from active duty for the reasons that plaintiff had tested positive for a controlled substance and had failed to attend a P.T. formation due to alcohol intoxication.

5. Defendants further informed plaintiff that he would receive a discharge characterization from the armed forces of the United States equivalent to a "general discharge under honorable conditions" and that the reason to be given for such separation would be "misconduct-abuse of illegal drugs."

6. Plaintiff was notified that because he had not accumulated six years or more of active and reserve military service prior to the time of plaintiff's separation from active duty, he was not entitled to request and receive a hearing of his case before an administrative elimination board. Section II, paragraph 2-2d of Army Regulation 635-200 provides that a serviceman is entitled to receive a hearing before an administrative elimination board only if he has accumulated 6 or more years of total active and reserve service on the date of initiation of recommendation for separation.

7. On August 1, 1990, plaintiff formally requested an administrative hearing of his case prior to being separated from active duty. On or around August 6, 1990, defendants denied such request and approved the release of plaintiff from active duty. Defendants ordered that plaintiff be discharged no later than August 24, 1990.

8. On August 15, 1990, plaintiff brought the present complaint in which he alleges that the procedures by which defendants are attempting to separate him from active duty with the United States Army amount to a violation of his due process rights pursuant to the Fifth Amendment of the U.S. Constitution and amount to a violation of his equal protection rights.

DISCUSSION

I. General Standard for a Preliminary Injunction

In this circuit, the general standard by which a court must evaluate the propriety of a preliminary injunction is basically a consideration of those factors originally enunciated in Blackwelder Furniture Co. v. Seilig Manufacturing Co., Inc., 550 F.2d 189 (4th Cir.1977). The question of whether a preliminary injunction should issue turns upon an assessment of (1) plaintiff's likelihood of success on the merits; (2) the likelihood that plaintiff will suffer irreparable injury without an injunction; (3) the likely injury that defendant will sustain upon issuance of an injunction; and (4) the public interest. Jones v. Board of Governors of the University of North Carolina, 704 F.2d 713, 715 (4th Cir.1983). If the balance of hardships tips decidedly in the plaintiff's favor, an injunction preserving the status quo should issue "if, at least, grave or serious questions are presented." North Carolina State Ports Authority v. Dart Containerline Co., Ltd., 592 F.2d 749, 750 (4th Cir.1979).

(A) Irreparable Injury to Plaintiff

Under Blackwelder, the first step for the court is to balance the "likelihood" of irreparable injury to the plaintiff against the "likelihood" of harm to the defendant. In the case at bar, plaintiff faces an imminent separation from the Army with a "general discharge" and will be further characterized as a serviceman separated for "misconduct-abuse of illegal drugs." The imposition of a general discharge has been recognized as imposing a stigma on the recipient since any discharge characterized as less than honorable may result in serious injury to the recipient's reputation and subsequent livelihood. See Bland v. Connally, 293 F.2d 852, 858 (D.C.Cir.1961).

Without injunctive relief, plaintiff argues that he will lose the opportunity to build a record, will lose the opportunity to have the drug test data scrutinized by his own experts, will lose the opportunity to require witnesses to appear on his behalf, and will be stigmatized for future employment in the public and private sector. Such stigmatization will adversely affect plaintiff's efforts to re-establish himself in civilian life after his discharge. Characterization as a drug abuser will lead many, if not most, employers to reject him. Employment problems generated by characterization as a drug abuser may lead to serious financial difficulties and inability to meet financial obligations.

Defendants strenuously argue that plaintiff has failed to show that any harm suffered would be irreparable. Specifically, defendants argue that loss of income and damage to reputation are not the types of harm deemed to be irreparable. Defendants contend that any possible injuries are monetary in nature for which adequate compensatory or other corrective relief are available through administrative appeals or litigation. Defendants rely on Sampson v. Murray, 415 U.S. 61, 94 S.Ct. 937, 39 L.Ed.2d 166 (1974) as support for their argument.

In Sampson, a probationary employee with the Public Buildings Service of the General Services Administration filed a complaint in federal court seeking injunctive relief against her dismissal pending an administrative appeal to the Civil Service Commission. The U.S. Supreme Court held that a district court has the authority to grant interim injunctive relief to a discharged government employee; however, the Court determined that under the standards that govern the issuance of such relief, the trial court's issuance of a temporary injunction could not be sustained.

The Sampson Court based its holding on the trial court's finding of irreparable harm. The Court stated that it was "somewhat puzzled about the basis for the District Court's conclusion that plaintiff `may suffer immediate and irreparable injury.'" Sampson v. Murray, 415 U.S. at 88-89, 94 S.Ct. at 952. Specifically, the Court held that loss of income and damage to reputation as a result of challenged agency action in the discharge of a probationary government employee are not the types of irreparable injury that are a necessary predicate to the issuance of injunctive relief against discharge pending review by the Civil Service Commission. 415 U.S. at 91-92, 94 S.Ct. at 953.

This court finds Sampson to be distinguishable from the case at bar. Admittedly, the Court in Sampson was not particularly sympathetic to finding irreparable harm in the context of a discharge from employment or to interference with an administrative process or personnel decisions. In Sampson, however, there were serious deficiencies with respect to the trial court's finding of irreparable harm. The Supreme Court pointed out that "no witnesses were heard on the issue of irreparable injury, that plaintiff's complaint was not verified, and that the affidavit she submitted to the District Court did not touch in any way upon considerations relevant to irreparable injury." 415 U.S. at 88, 94 S.Ct. at 952.

Furthermore, the Court in Sampson specifically noted that it was not ruling out findings of irreparable harm in exceptional cases. 415 U.S. at 91-92, n. 68, 94 S.Ct. at 953, n. 68. This court concludes that the present action is such a case. There is evidence in the record which indicates that there would be an extended delay between plaintiff's separation and review, if any, by the Army Board for the Correction of Military Records ("ABCMR"). Such delay could even amount to a...