Hardison v. Alexander
| Decision Date | 26 May 1981 |
| Citation | 211 U.S.App.D.C. 51,655 F.2d 1281 |
| Court | U.S. Court of Appeals — District of Columbia Circuit |
John R. Fisher, Asst. U. S. Atty., Washington, D. C., with whom Charles F. C. Ruff, U. S. Atty., John A. Terry and Scott T. Kragie, Asst. U. S. Attys., Washington, D. C., were on the brief for appellees.
Before BAZELON, Senior Circuit Judge, and ROBB and WILKEY, Circuit Judges.
Opinion for the Court filed by Circuit Judge WILKEY.
This case turns on a straightforward application of the principles of res judicata in a factual setting complicated by the numerous occasions on which Hardison, a captain in the United States Army, has sought piecemeal relief from an accommodating Army bureaucracy.
Hardison's grievance is simple: he believes he was twice unfairly passed over for promotion to the rank of major, and thus, under the Army's up-or-out policy, marked for involuntary discharge from the service. To contest his scheduled release, Hardison instituted a series of administrative appeals within the Army and filed suit in the United States District Court for the Eastern District of Michigan, where he obtained a temporary restraining order which then led to a promise by the Army that he would not be discharged pending the outcome of his administrative appeals. After he had unsuccessfully exhausted his administrative remedies, however, the district court dismissed his case, Hardison did not appeal, and he was again scheduled for discharge.
At this point the story would seem to be at its end. But instead the Army agreed on several additional occasions to reconsider Hardison's case, while in the meantime retaining Hardison on active duty. Finally, after Hardison had been considered and reconsidered a total of eight times without being selected for promotion, the Army once again scheduled him for discharge. In the meantime, however, Hardison had brought a second action, this time in the United States District Court for the District of Columbia. The district court dismissed this second suit on the ground that it is barred by res judicata. Hardison now appeals.
We find that, at the time Hardison's first suit was dismissed, he had not only exhausted his administrative remedies but was in a position fully to litigate the claims he now brings in his present action. Since his case was ripe for adjudication at the time of his first suit, we agree with the district court that Hardison's present action is barred by res judicata. We therefore affirm.
A critical question to be answered in this case is whether Hardison's claims were ripe for adjudication at the time his first action was dismissed. Before turning to consider the steps Hardison took prior to the dismissal of his first suit, we therefore pause briefly to examine the Army's promotion system and the avenues of administrative appeal available to an Army officer who believes himself wrongly to have been passed over for promotion. 1
The Army's officer promotion system is an outgrowth of title V of the Officer Personnel Act of 1947, as amended (the first four titles deal with promotion procedures in other services). 2 Title V, which had been strongly supported by General Eisenhower after World War II, substituted promotion based on merit for what previously had been a seniority-based system. 3 By imposing a requirement that an officer be affirmatively selected for promotion rather than be promoted simply on the basis of time served, Congress sought in title V to improve the caliber of the Army's officer corps. 4
The system inaugurated by the 1947 Act calls for the periodic convening of promotion selection boards which are required to rule favorably or unfavorably on all officers eligible for promotion as determined by their length of service at their present rank. Such selection boards are used whether the officers under consideration are Regular or Reserve officers, and whether they are being considered for promotion to a temporary or a permanent rank (all officers have a permanent rank, but officers on active duty may also be appointed to a temporary rank higher than their permanent rank, which they nonetheless retain). At the heart of this merit promotion system, and crucial to its effective functioning, is the requirement that officers twice passed over for promotion be discharged from active duty. 5 In principle at least, the Army's officer corps thus constantly is being pruned of deadwood, so that all officers on active duty are on their way up, motivated and capable.
When a Reserve officer is up for promotion, in addition to the Officer Personnel Act, a second enactment, the Armed Forces Reserve Act of 1952, controls Army procedures. 6 Referred to at the time of its passage as the "Reserve bill of rights," 7 the the Reserve Act provides a variety of protections for Reserve members, including a provision requiring any board considering the promotion of a Reserve officer to include members drawn from the Reserves. 8
Selection boards consider officers for promotion on the basis of the records and reports concerning the officer retained in the officer's files. The Army provides an appeals procedure that enables an officer to challenge the material in his file if he believes it is prejudicially erroneous. 9 In considering such an appeal, the Army presumes that the material in an officer's file is correct, but an aggrieved officer may overcome this presumption if he succeeds in showing "clearly and convincingly" that action is warranted to correct a "material error or injustice." 10
An officer wishing to appeal presents his evidence in writing to the Military Personnel Center (MILPERCEN) of the Department of the Army. Claims of administrative error are handled by MILPERCEN itself, while claims of substantive inaccuracy are forwarded to a Department of the Army Special Review Board for consideration. In the event the Army determines that the records in question were in error and a promotion selection board already has acted on the basis of the erroneous records, the officer's records are referred to a "standby advisory board" for reconsideration. 11
The standby advisory board is presented with the records of a number of randomly chosen officers some of whom have recently been selected for promotion, and some, rejected. The standby board then rates the aggrieved officer's corrected record along with the other records before it. If it awards the officer a rating equal to or better than the ratings it gives to the officers already selected for promotion, then he is promoted on the basis of his corrected record. 12
An officer who fails to obtain satisfaction from MILPERCEN may appeal to the Army Board for the Correction of Military Records (ABCMR). The ABCMR is a board of civilians created by statute 13 and implementing regulations 14 to act as necessary with the Secretary of the Army to change any Army record in order to correct error or remove injustice. An appeal to the ABCMR is not only an officer's last resort within the Army the ABCMR will not consider an application unless the applicant has exhausted all other practical remedies available 15 but generally is prerequisite to litigation of the officer's claims in federal court. 16 While the ABCMR cannot act to stay any action being taken against an officer during the pendency of his appeal before it, 17 it has the power to award full reinstatement and back pay should it ultimately rule in the officer's favor. 18
As we shall see, the appellant here appealed both to the MILPERCEN and to the ABCMR, and prior to the dismissal of his action in the Eastern District of Michigan, had received unfavorable rulings on all his claims from the ABCMR. He had thus exhausted his remedies within the Army and his case was ripe for judicial review when the Michigan district court dismissed his case and he failed to appeal.
The undisputed facts alleged by the appellant in his complaint and revealed by the record are as follows: Hardison began active duty in the United States Army Reserve in 1964, attaining the temporary rank of Captain by April 1967. Then in 1974 and 1975 he was twice passed over for promotion to the temporary grade of Major, and accordingly scheduled for discharge. Not wanting to leave the Army, Hardison sought relief both within the Army and from the courts.
From the outset, Hardison's challenges have been based on one or the other of two theories: (1) that the refusals of the 1974 and 1975 selection boards to promote him were void because the boards were improperly constituted in that they did not contain members of the Reserves as required by 10 U.S.C. § 266; and (2) that the actions of the boards were in any event tainted by the inclusion in Hardison's file of three Officer Efficiency Reports (OER's) that had been improperly prepared.
Key to our decision here is the fact that, after pursuing separate avenues of administrative appeal, Hardison brought an action in the United States District Court for the Eastern District of Michigan in which both theories were or could have been fully litigated. He lost in that court and did not appeal, but now has brought claims arising out of the same events first before the trial court and now before us.
Because Hardison chose to pursue his two theories through separate administrative appeals, it will aid understanding to trace separately the histories of these two strands.
First, we consider the appellant's challenges based on the improper constitution of his selection boards. After Hardison was notified in ...
To continue reading
Request your trial
-
Ruiz Rivera v. Holder
...and certain effect, and to prevent serial forum-shopping and piecemeal litigation,'" Defs.' Mem. at 6 (quoting Hardison v. Alexander, 655 F.2d 1281, 1288 (D.C.Cir.1981)). The plaintiff responds that his claims are not barred because the defendants against whom the claims were brought in Riv......
-
Ficken v. Golden
...for judgments of predictable and certain effect, and prevent serial forum-shopping and piecemeal litigation." Hardison v. Alexander, 655 F.2d 1281, 1288 (D.C.Cir.1981); see also Allen, 449 U.S. at 94, 101 S.Ct. b. Res Judicata Bars the Plaintiffs' Claims Against All Remaining Defendants Def......
-
Toolasprashad v. Grondolsky
...to litigate—even if they chose not to exploit that opportunity— whether the initial judgment was erroneous or not." Hardison v. Alexander, 655 F.2d 1281 (D.C.Cir.1981). The doctrine of res judicata requires an identity of parties or their privies in the earlier and later suits. A final judg......
-
Americans Disabled for Accessible Public Transp. (ADAPT) v. Skinner
... ... See Alexander v. Choate, 469 U.S. 287, 299, 105 S.Ct. 712, 719, 83 L.Ed.2d 661 (1985). The Supreme Court first considered the balance between these considerations ... ...