Kawitt v. U.S.

• Decision Date: 22 March 1988
• Docket Number: No. 87-1665,87-1665
• Parties: 50 Fair Empl.Prac.Cas. 3, 46 Empl. Prac. Dec. P 37,920 Alan KAWITT, Plaintiff-Appellant, v. UNITED STATES of America, Defendant-Appellee.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 951

842 F.2d 951

50 Fair Empl.Prac.Cas. 3, 46 Empl. Prac. Dec.

P 37,920

Alan KAWITT, Plaintiff-Appellant, v. UNITED STATES of America, Defendant-Appellee.

No. 87-1665.

United States Court of Appeals, Seventh Circuit.

Argued Jan. 26, 1988.

Decided March 22, 1988.

Alan Kawitt, Chicago, Ill., for plaintiff-appellant.

Elizabeth M. Landes, Asst. U.S. Atty., Anton Valukas, U.S. Atty., U.S. Attorney's Office, Chicago, Ill., for defendant-appellee.

Before CUMMINGS, CUDAHY and POSNER, Circuit Judges.

POSNER, Circuit Judge.

Mr. Kawitt, a lawyer in private practice in Chicago, enlisted in the inactive Naval Reserve in 1984. He hoped to become an officer, and learn and practice military law, but he had to content himself with becoming a petty officer and serving as a law clerk. The maximum age for enlistment in the Naval Reserve is 42, see Naval Military Personnel Manual 1040150, p 3 (1983), but in 1984 Kawitt was 46, having been born on December 19, 1937. On his application he listed his birth date as December 19, 1941, which if true would have made him eligible. Asked at oral argument where he had gotten the date, he stated that he had taken it out of the air. He could have sought a waiver of the maximum-age rule, see id. at 3620280, p 3 (1984), but did not.

In the course of processing his application, the Navy requested additional documentation about his age. In response he submitted a birth certificate and driver's license, both of which showed his true date of birth; nevertheless he was accepted. But soon the Navy discovered its error, and on December 28, 1984, after having duly notified Kawitt and received statements and objections from him, it gave him an honorable discharge. This suit for reinstatement and back pay followed. The district court dismissed the suit both for failure to state a claim and for failure to exhaust administrative remedies, and Kawitt appeals.

In defense of the judge's ruling on exhaustion, the government points to 10 U.S.C. Sec. 1552(a) and 32 C.F.R. Sec. 723, which establish the Board for Correction of Naval Records to "correct any military record ... when he [the Secretary of the Navy, acting on the advice of the Board] considers it necessary to correct an error or remove an injustice." Despite the Board's clerical name and the ostensible confinement of its jurisdiction to correcting (rather than perpetuating or forgiving) errors and injustices, the Board apparently has the power to forgive (more precisely to recommend to the Secretary of Navy that he forgive) an erroneous enlistment. See Champagne v. Schlesinger, 506 F.2d 979, 982-83 (7th Cir.1974), and cases cited there. But it is highly unlikely that the Board would exercise that power in Kawitt's favor, and arguably futile, therefore, for him to resort to its processes. Although the Navy was kind enough to give him an honorable discharge, his own admissions show that he enlisted fraudulently; and while there is an old and honorable custom of permitting the young to exaggerate their age in order to be permitted to enlist in the armed forces, we know of no comparable custom of winking at misrepresentations by a middle-aged man who seeks enlistment in the inactive reserve, probably to supplement his civilian income with part-time civilian-type work. Exhibits attached to the record indicate that the Navy is authorized to waive its rules on age and sometimes does so, and maybe if the Navy needed a law clerk at the Great Lakes Naval Station badly enough it would overlook Kawitt's misrepresentation--but if so it would not have discharged him. He has given no excuse for misrepresenting his age, and we can think of no ground on which the Board for Correction of Naval Records would decide to recommend his reinstatement.

Even in the military setting the requirement of exhausting administrative remedies is waived if resort to those remedies would be futile, see Beller v. Middendorf, 632 F.2d 788, 801 (9th Cir.1980), but in that setting the exception for futility is interpreted narrowly because of the natural reluctance of civilian courts to intervene in a sphere of activity about which they are more than usually ignorant. See Von Hoffburg v. Alexander, 615 F.2d 633, 637-38 (5th Cir.1980); Hodges v. Callaway, 499 F.2d 417, 423 (5th Cir.1974); Muhammad v. Secretary of the Army, 770 F.2d 1494 (9th Cir.1985); cf. Woodrick v. Hungerford, 800 F.2d 1413, 1416-17 (5th Cir.1986). Since the Board for Correction of Naval Records could recommend Kawitt's reinstatement, though it is highly unlikely to do so, the principle of narrow interpretation would point toward dismissal of this suit for failure to exhaust administrative remedies. But since it is also apparent that Kawitt has no substantive basis for this lawsuit, it seems better to terminate the proceeding once and for all, rather than require Kawitt to pester the Board en route to the eventual but certain doom of this lawsuit. We can do this, we think, without getting entangled in the vexed question whether a requirement of exhausting administrative remedies is jurisdictional, a question as yet unsettled in the military setting, see Montgomery v. Rumsfeld, 572 F.2d 250 (9th Cir.1978). Since the doctrine of exhaustion in that setting is a judge-made doctrine, the judges can shape it to fit the exigencies of particular cases, and thus recognize an exception for a case such as the present one where the only effect of declining to reach the merits would be to condemn not only the plaintiff but the military service to futile additional proceedings. This conclusion is consistent with the Supreme Court's flexible interpretation of the statutory requirement of exhaustion (codifying the judge-made requirement of exhaustion) in federal habeas corpus cases brought by state prisoners. See Granberry v. Greer, --- U.S. ----, 107 S.Ct. 1671, 95 L.Ed.2d 119 (1987).

Turning, then, to the merits, we find that only two of Kawitt's claims even merit discussion. The first is that in discharging him without a hearing, the Navy deprived him of property without due process of law, in violation of the Fifth Amendment. All other objections to this theory of liability to one side, a job obtained by an admitted and material misrepresentation is not a property right upon which a constitutional suit can be founded.

Kawitt also argues that the age-42 cut-off for enlistment in the Naval Reserve violates the Age Discrimination in Employment Act of 1967, as amended, 29 U.S.C. Secs. 621 et seq. The Act has since an amendment in 1974 prohibited age discrimination in the "military departments," including the Navy. See 29 U.S.C. Sec. 633a(a); 5 U.S.C. Sec. 102. But we agree with the Ninth Circuit that the amendment was not meant to extend the protections of the statute to the uniformed personnel, whether active or reserve, of the armed forces. See Helm v. State of California, 722 F.2d 507, 509 (9th Cir.1983). The court in Helm based its conclusion on decisions that hold that Title VII of the Civil Rights Act of 1964, 42 U.S.C. Secs. 2000e et seq., which contains the identical "military departments" coverage, see 42 U.S.C. Sec. 2000e-16(a) (added in 1972), is inapplicable to the military's uniformed personnel. See Gonzalez v. Department of the Army, 718 F.2d 926 (9th Cir.1983); Johnson v. Alexander, 572 F.2d 1219 (8th Cir.1978). Under neither statute is the interpretation that excludes uniformed military personnel inevitable as a matter of semantics, but it makes compellingly good sense, particularly in the case of the age-discrimination law. Military efficiency demands that the services have a free hand in establishing age ceilings designed to ensure that the nation's soldiers, sailors, and airmen are young and fit enough to meet the challenges of military service. Of course in modern war only a small fraction of military personnel serve in combat units, and it is hardly to be supposed that youth and physical fitness are prime credentials for service in the legal departments of the armed forces. But judges should be reluctant to assume the micromanagement of military age-grading policies, and without a clearer directive from Congress we decline to do so. Cf. Chappell v. Wallace, 462 U.S. 296, 103 S.Ct. 2362, 76...