Hartikka v. U.S.

• Citation: 754 F.2d 1516
• Decision Date: 06 March 1985
• Docket Number: No. 84-5604,84-5604
• Parties: Captain Dale M. HARTIKKA, United States Air Force, Plaintiff/Appellee, v. UNITED STATES of America, United States Air Force, and Verne Orr, Secretary of the United States Air Force, Defendants/Appellants.
• Court: United States Courts of Appeals. United States Court of Appeals (9th Circuit)

Page 1516

754 F.2d 1516

Captain Dale M. HARTIKKA, United States Air Force, Plaintiff/Appellee, v. UNITED STATES of America, United States Air Force, and Verne

Orr, Secretary of the United States Air Force,

Defendants/Appellants.

No. 84-5604.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted Dec. 7, 1984.

Decided March 6, 1985.

William G. Smith, Los Angeles, Cal., for plaintiff/appellee.

Marc Richman, U.S. Dept. of Justice, Washington, D.C., for defendants/appellants.

Appeal from the United States District Court for the Central District of California.

Before SNEED, ANDERSON and FERGUSON, Circuit Judges.

J. BLAINE ANDERSON, Circuit Judge:

The Air Force appeals the district court's issuance of a preliminary injunction. It contends that the district judge based his ruling on the application of an erroneous legal standard. Specifically, appellants argue that the standard enunciated in Sampson v. Murray, 415 U.S. 61, 94 S.Ct. 937, 39 L.Ed.2d 166 (1974), governs cases where military personnel seek preliminary injunctive relief prohibiting a discharge. We agree and hold that the district court's judgment must be reversed and its order vacated.

BACKGROUND

The appellee, Dale M. Hartikka, is a captain in the United States Air Force. With the exception of a three-year period in which he served in the Air Force Reserve, Hartikka has continuously served as a pilot with the Air Force since entering active duty as a commissioned officer on January 3, 1978.

On March 8, 1983, an Air Force Board of Inquiry was convened to consider certain charges of drunk and disorderly conduct against Hartikka. Following a hearing on the charges, Hartikka was found, on two occasions, too intoxicated to perform his duties and, on a third occasion, he was found to have wrongfully discharged a semi-automatic weapon in the direction of a neighbor's house while highly intoxicated. The Board recommended that Hartikka be discharged for committing these acts. The Secretary of the Air Force followed this recommendation and approved a discharge "under honorable conditions (general)." Such a discharge is "[a]ppropriate when a member's military record is not sufficiently meritorious to warrant an honorable characterization." 32 C.F.R. Sec. 41.9(a)(2).

Hartikka immediately applied for administrative review of the Secretary's decision with the Air Force Board for Correction of Military Records. He also filed a complaint in United States District Court seeking injunctive and declaratory relief, alleging certain procedural irregularities in the processing of his discharge.

The district court granted Hartikka's motion for preliminary injunction, finding that he had "demonstrated that he has a fair chance on the merits of his claim" and that "[t]he balance of hardships tips sharply in [Hartikka's] favor." E.R. at 4-5 (emphasis added).

On appeal, the sole issue is whether the district court erred in issuing the preliminary injunction, thereby prohibiting the Air Force from discharging appellee, pending administrative review of Hartikka's discharge.

DISCUSSION

The grant of a preliminary injunction will be reversed where the district court has abused its discretion or based its decision on an erroneous legal standard or on clearly erroneous findings of fact. Sierra On-Line, Inc. v. Phoenix Software, Inc., 739 F.2d 1415, 1421 (9th Cir.1984).

The crucial inquiry in this matter concerns the appropriate standard for granting injunctive relief. " 'The critical element in determining the test to be applied is the relative hardship to the parties.' " Id. (citing Benda v. Grand Lodge of the International Association of Machinists, 584 F.2d 308, 315 (9th Cir.1978), cert. denied, 441 U.S. 937, 99 S.Ct. 2065, 60 L.Ed.2d 667 (1979)). The usual standard, applied by the district court, requires that the moving party show either (1) a combination of probable success on the merits and the possibility of irreparable injury, or (2) that serious questions are raised and the balance of hardships tips sharply in favor of the moving party. See, e.g., William Inglis & Sons Baking Co. v. I.T.T. Continental Baking Co., Inc., 526 F.2d 86, 88 (9th Cir.1975).

Application of the standard enunciated by the Supreme Court in Sampson would, however, require that the moving party make a much stronger showing of irreparable harm than the ordinary standard for injunctive relief. 415 U.S. at 84, 91-92 n. 68, 94 S.Ct. at 950, 953-954 n. 68. That is, where the balance of harm tips less decidedly toward a plaintiff, he must make a greater showing of a likelihood of success on the merits than where the balance tips decidedly in his favor. Benda v. Grand Lodge, supra, 584 F.2d at 315. The necessity of making this stronger showing is implicit in the magnitude of the interests weighing against judicial interference in the internal affairs of the armed forces. See, e.g., Sampson, 415 U.S. at 83-84, 94 S.Ct. at 949-950, and Orloff v. Willoughby, 345 U.S. 83, 93-94, 73 S.Ct. 534, 539-540, 97 L.Ed. 842 (1953). While we realize that the rule in Sampson concerned the rights of civilian employees, we agree that it should also be applied to military personnel. See Chilcott v. Orr, 747 F.2d 29, 32-34 (1st Cir.1984). See also, Peeples v. Brown, 444 U.S. 1303, 1305, 100 S.Ct. 381, 383, 62 L.Ed.2d 300 (1979). Consequently, we conclude that the district court erred in application of the traditional standard for injunctive relief.

We next examine whether Hartikka has demonstrated sufficient irreparable injury to satisfy the test. Although the Sampson court did not specify what type of irreparable injury would satisfy its higher standard, it indicated that the circumstances must be "genuinely extraordinary"; that is, they must be a "far depart[ure] from the normal situation" of employment discharge. Sampson, supra, 415 U.S., at 91-92 and n. 68, 94 S.Ct. at 953-954 and n. 68.

Hartikka's claims of irreparable injury are based on assertions of loss of income, loss of retirement and relocation pay, and damage to his reputation resulting from the stigma attaching to a less than honorable discharge. ER at 84-85. Our review leads us to conclude that these alleged injuries are insufficient under the Sampson standard to justify injunctive relief. The loss of income, the ensuing collateral effects thereof, and the possibility of stigma are "external factors common to most discharged employees and not attributable to any unusual actions relating to the discharge itself [and] will not support a finding of irreparable injury, however severely they may affect a particular individual." Sampson, 415 U.S. at 92 n. 68, 94 S.Ct. at 953 n. 68.

CONCLUSION

For the foregoing reasons, the judgment of the district court, granting preliminary injunctive relief, is REVERSED and its order

VACATED.

FERGUSON, Circuit Judge, dissenting:

I dissent. This case does not involve a simple termination of employment but the harsh realities of a military general discharge. Captain Hartikka, the plaintiff here, has shown the required "genuinely extraordinary" irreparable injury, different in "kind and degree" and "far depart[ing] from the normal situation" involved in employee discharge cases. Sampson v. Murray, 415 U.S. 61, 84, 92 n. 68, 94 S.Ct. 937, 953 n. 68, 39 L.Ed.2d 166 (1974).

The district court granted a preliminary injunction, finding that Captain Hartikka raised serious questions concerning the prior administrative proceedings and that the balance of hardships tipped sharply in his favor. See Beltran v. Myers, 677 F.2d 1317, 1320 (9th Cir.1982). Serious questions were raised concerning the adequacy of Hartikka's counsel at the administrative proceeding, the absence of instructions to the decision-making body, the introduction of a cancelled Department of Defense Directive quoted by government counsel in recommending discharge for misconduct, and the questionable validity of the Board's decision in light of 32 C.F.R. Secs. 62.2, 62.4(a)(5) and 62.4(a)(6). These regulations make it the policy of the Department of Defense, including all defense components such as the Air Force, to "[t]reat or counsel alcohol and drug abusers and rehabilitate the maximum feasible number of them," 32 C.F.R. Sec. 62.4(a)(5), and to permit only the "[d]iscipline and/or discharge [of] drug traffickers and those alcohol and drug abusers who cannot or will not be rehabilitated." 32 C.F.R. Sec. 62.4(a)(6). Captain Hartikka successfully completed the Air Force's alcoholic rehabilitation program at San Diego and has not consumed any alcohol since September 1982. His discharge, after his successful rehabilitation, based upon three isolated incidents of alcoholism which took place before he entered the rehabilitation program, is contrary to the Department of Defense regulations in favor of rehabilitation and retention.

Furthermore, other than the three isolated incidents of alcoholism upon which the Board of Inquiry based its decision, Captain Hartikka has had an exemplary career as an officer in the Air Force. He has received numerous commendations and awards. Even after the events which led to the discharge proceedings, Captain Hartikka received many letters of appreciation from his superior officers. His Officer Effectiveness Reports have always been outstanding, including those given to him after he was recommended for discharge. In his current position he received the highest possible ratings an officer can receive. As recently as October 5, 1983, he received a letter from Lt. Col. Kent W. Morey, Chief, Combat Operations of the 63rd Airlift Wing, recommending Hartikka's retention in the United States Air Force. All this shows that Hartikka is just the type of officer who can be successfully rehabilitated and retained in keeping with Air Force policy.

Not only has Captain Hartikka raised serious questions concerning his impending involuntary discharge, there has been an ample showing that the balance of relative hardships tips...