Guitard v. U.S. Secretary of Navy

• Decision Date: 10 June 1992
• Docket Number: No. 851,D,851
• Citation: 967 F.2d 737
• Parties: Paul Raymond GUITARD, Plaintiff-Appellee, v. U.S. SECRETARY OF the NAVY, Chief of Navy Personnel, Commander, Navy Base Philadelphia, Commanding Officer, Naval Base Philadelphia, Defendants-Appellants. ocket 91-6256.
• Court: U.S. Court of Appeals — Second Circuit

Page 737

967 F.2d 737

Paul Raymond GUITARD, Plaintiff-Appellee, v. U.S. SECRETARY OF the NAVY, Chief of Navy Personnel Commander, Navy Base Philadelphia, Commanding Officer, Naval Base Philadelphia Defendants-Appellants.

No. 851, Docket 91-6256.

United States Court of Appeals, Second Circuit.

Argued Jan. 30, 1992.

Decided June 10, 1992.

Mark W. Pennak, U.S. Dept. of Justice, Civ. Div., Washington, D.C. (Stuart Gerson, Asst. Atty. Gen., Richard N. Palmer, U.S. Atty. D. Conn., Anthony J. Steinmeyer, U.S. Dept. of Justice, Civ. Div., Lt. Kirk A. Foster, JAGC, U.S.N.R., Office of Judge Advocate Gen., Alexandria, Va., of counsel), for defendants-appellants.

Paul R. Guitard, pro se (Frank H. Santoro, Danaher, Tedford, Lagnese & Neal, P.C., Hartford, Conn., of counsel), for plaintiff-appellee.

Before: WINTER, PRATT and MAHONEY, Circuit Judges.

WINTER, Circuit Judge:

This is an appeal from Judge Nevas's issuance of a preliminary injunction prohibiting the Secretary of the Navy from discharging Lieutenant Paul Raymond Guitard. Because Guitard failed to exhaust his administrative remedies, we reverse.

BACKGROUND

Guitard is a Lieutenant, Junior Grade, in the Nurse Corps of the United States Naval Reserve. He is currently on active duty in the Supply Department of the Naval Hospital, Philadelphia, Pennsylvania. In November 1985, Guitard refused to submit to a random drug test, on the ground that the test violated his constitutional rights. He was fined and given a letter of admonition for failure to follow the order. In March 1986, the Navy conducted a drug-testing sweep of Guitard's unit. On this occasion, Guitard provided the urine sample as requested and tested positive for marijuana use.

A court-martial followed, and Guitard was convicted of violating 10 U.S.C. § 912a (1988), which prohibits "wrongful use[ ], possess[ion], manufacture[ ], distribut[ion], [or] import[ation]" of a controlled substance. His discharge was ordered. However, this ruling was overturned by the Navy and Marine Corps Court of Military Review on the ground that the Navy failed to provide an expert witness for Guitard.

The Navy elected not to retry Guitard before a court-martial but instead convened a three-officer Board of Inquiry pursuant to 10 U.S.C. § 1181 et seq. (1988). ¹ The Board of Inquiry unanimously found Guitard guilty of military misconduct by refusing to follow a lawful order to submit to a drug test and by using marijuana. The Board of Inquiry also relied upon fitness On April 18, Guitard filed the present action, alleging a host of claims. Among them were that the administrative procedures leading to his discharge were "illegal," that he was denied due process when the Navy labelled him a "drug user" without a trial, that he had inadequate representation at the Board of Inquiry, that he was denied compulsory process to produce favorable witnesses, that as a white male he was racially and sexually discriminated against, and that he was "harassed" and "unfairly treated" by his commanding officers.

                reports that evaluated his performance from March 1986 through August 1986 as "marginal."   The Board of Inquiry recommended that Guitard be separated from the Navy with an Other Than Honorable discharge.   The Secretary of the Navy approved the discharge solely on the basis of the drug-related misconduct, to take effect on April 19, 1990
                

On April 27, 1990, the district court issued a temporary restraining order and referred the request for a preliminary injunction to a magistrate judge. The magistrate judge recommended that Guitard's request for injunctive relief be denied on the ground that Guitard failed to show the necessary "likelihood of success on the merits" or "sufficiently serious questions going to the merits to make them a fair ground for litigation." See Sperry International Trade, Inc. v. Government of Israel, 670 F.2d 8, 12 (2d Cir.1982) (reciting two formulations of second prong of preliminary injunction test). This ruling, the magistrate judge explained, was not based on Guitard's failure to exhaust administrative remedies because "the plaintiff's underlying claims are so devoid of merit it seems better that they be addressed." The magistrate judge characterized as "outlandish" Guitard's attempts to explain his positive drug test, specifically his claim that it may have resulted from his having eaten cookies or brownies of an "unknown origin" the weekend before the urinalysis.

Guitard filed several objections to the magistrate judge's report. These included the following claims: (i) that the magistrate judge ignored the numerous "procedural irregularities" in the Board of Inquiry proceedings; and (ii) that the urinalysis test upon which his discharge was based was not a regular sweep but was instead timed to ensnare him. The district court was persuaded, holding that "Guitard has raised issues concerning the propriety of the procedures by which he was discharged which need to be resolved so that the record can be completed before this court can make its de novo review." Accordingly, Judge Nevas ordered the Navy "to conduct the necessary and appropriate hearings to determine the two issues which Guitard has raised."

The Navy appointed a judge advocate to conduct a hearing on Guitard's allegations. Guitard was given the opportunity to provide additional evidence, and Navy personnel familiar with the drug testing program were interviewed. Additionally, the hearing officer reviewed the evidence collected in the prior administrative proceedings against Guitard. The Navy submitted a twelve-page report to the district court addressing Guitard's specific contentions and including the results of its hearing and further investigations. It found that Guitard's allegations of being "singled out" for drug testing were unsupported by the evidence and that his discharge proceedings were consistent with regulations and the law. The report scheduled Guitard's discharge for July 31, 1991.

Guitard moved for another restraining order, which the district judge granted on July 23, 1991. At a subsequent hearing, the district judge issued a preliminary injunction from the bench, stating his dissatisfaction with the Navy's response.

[I]n the Court's view, the report is not complete at this time because of the Navy's failure or refusal to follow my ... order of last November, in which I asked that a hearing be conducted on the two issues referred to in that ruling.

Therefore, it would seem that a preliminary injunction is the only way the status quo can be preserved until the Navy complies with my order to conduct a hearing.... before a duly authorized officer The district court found that Guitard would suffer "irreparable harm" if the discharge were allowed to take effect, and that there were "sufficiently serious questions going to the merits." The Navy appealed.

wherein the plaintiff is afforded the opportunity to be represented by counsel.... to be conducted in good faith, and without any command influence, and with proper findings to follow.

DISCUSSION

Because Guitard failed to exhaust his administrative remedies, the district court should not have intervened in the proceedings between Guitard and the Navy. Under the exhaustion rule, a party may not seek federal judicial review of an adverse administrative determination until the party has first sought all possible relief within the agency itself. Myers v. Bethlehem Shipbuilding Corp., 303 U.S. 41, 50-51, 58 S.Ct. 459, 463-64, 82 L.Ed. 638 (1938). In Schlesinger v. Councilman, 420 U.S. 738, 95 S.Ct. 1300, 43 L.Ed.2d 591 (1975), the Supreme Court stated:

[The exhaustion rule] is based on the need to allow agencies to develop the facts, to apply the law in which they are peculiarly expert, and to correct their own errors. The rule ensures that whatever judicial review is available will be informed and narrowed by the agencies' own decisions. It also avoids duplicative proceedings, and often the agency's ultimate decision will obviate the need for judicial intervention.

420 U.S. at 756-57, 95 S.Ct. at 1312 (citations omitted). In Schlesinger, the Court noted the particular importance of administrative exhaustion in circumstances implicating military discipline. Schlesinger involved a petition for a writ of habeas corpus by a military prisoner subject to pending court-martial proceedings. The Court stated, "The military is 'a specialized society separate from civilian society' with 'laws and traditions of its own [developed] during its long history.' " Schlesinger, 420 U.S. at 757, 95 S.Ct. at 1313 (quoting Parker v. Levy, 417 U.S. 733, 743, 94 S.Ct. 2547, 2555, 41 L.Ed.2d 439 (1974)). The Court also emphasized that the crucial role of the armed forces in preserving national security requires that "the military must insist upon a respect for duty and a discipline without counterpart in civilian life." Id. The Court concluded that because Congress provided the military with its own legal code, "it must be assumed that the military court system will vindicate servicemen's constitutional rights." Id. 420 U.S. at 758, 95 S.Ct. at 1313; Middendorf v. Henry, 425 U.S. 25, 29 n. 6, 96 S.Ct. 1281, 1285 n. 16, 47 L.Ed.2d 556 (1976); Parisi v. Davidson, 405 U.S. 34, 37, 92 S.Ct. 815, 817-18, 31 L.Ed.2d 17 (1972); McKart v. United States, 395 U.S. 185, 194-95, 89 S.Ct. 1657, 1662-63, 23 L.Ed.2d 194 (1969). Finally, "judges are not given the task of running the [military]." Orloff v. Willoughby, 345 U.S. 83, 93, 73 S.Ct. 534, 540, 97 L.Ed. 842 (1953).

The imperatives concerning military discipline require the strict application of the exhaustion doctrine in discharge cases. In Michaelson v. Herren, 242 F.2d 693 (2d Cir.1957), we applied the exhaustion rule in a factual context strikingly similar to the instant case. In Michaelson, an Army sergeant sought a preliminary injunction barring the Army from giving him an Undesirable Discharge. We held that his failure to bring his case...