Lundgrin v. Claytor

• Decision Date: 08 April 1980
• Docket Number: No. 78-1628,78-1628
• Parties: Daryl B. LUNDGRIN, Plaintiff-Appellant, v. W. Graham CLAYTOR, Secretary of the Navy of the United States, and the United States, Defendants-Appellees.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 61

619 F.2d 61

Daryl B. LUNDGRIN, Plaintiff-Appellant, v. W. Graham CLAYTOR, Secretary of the Navy of the United States, and the United States, Defendants-Appellees.

No. 78-1628.

United States Court of Appeals Tenth Circuit.

Argued and Submitted Jan. 24, 1980.

Decided April 8, 1980.

Virginius Dabney, McMillan & Browning, Salt Lake City, Utah, for plaintiff-appellant.

Ronald L. Rencher, U. S. Atty., Salt Lake City, Utah, for defendants-appellees.

Before BARRETT, DOYLE and SEYMOUR, Circuit Judges.

SEYMOUR, Circuit Judge.

Dr. Daryl B. Lundgrin filed a complaint in district court seeking to enjoin the Navy from ordering him to active duty before completion of the civilian residency program in which he had enrolled. In denying Lundgrin's request for a preliminary injunction, the court concluded that the language of Lundgrin's enlistment contract vested complete discretion in the Navy to disallow a deferment for civilian residency training. Lundgrin contends on appeal pursuant to 28 U.S.C. § 1292 that the district court erred in denying his motion for a preliminary injunction. Our review of the record, however, convinces us that the district court did not abuse its discretion, and its order denying the injunction should be affirmed.

In 1973, Lundgrin, a first-year student at the University of Oklahoma Medical School, was accepted into the Armed Forces Health Professions Scholarship Program (Scholarship Program) by the Navy's Bureau of Medicine and Surgery. He thereafter executed the Armed Forces Health Professions Scholarship Program Service Agreement (Agreement), which is the contract setting forth the terms of his agreement with the Navy. In return for the Navy's promise to pay certain educational expenses connected with his medical training, ¹ Lundgrin agreed to serve one year on active duty for each year of participation in the Scholarship Program, or a total of four years.

In his final year of medical school, Lundgrin applied for residency programs to receive specialized training in pathology. As required by the Agreement, he requested a residency in the Navy. However, he simultaneously indicated his preference for a civilian residency program and applied for a deferment of his active service obligation until 1981, when he anticipated completing a four-year civilian pathology residency.

Although Lundgrin's application for the Naval Residency Pathology Program was denied, he was subsequently accepted for a civilian pathology residency at the University of Utah Affiliated Hospital. Nevertheless, the Navy rejected Lundgrin's application for a four-year active duty deferment to complete the civilian residency because the Navy needed general medical officers on active duty and had no current or projected shortage of pathologists. However, Lundgrin was granted a one-year deferment to permit him to complete a year of graduate medical education.

Lundgrin contends that once the Navy granted him a one-year deferment from active duty, the plain terms of the Agreement required the Navy to grant him the additional three years in order to complete his civilian residency. Alternatively, he asserts that the Agreement is ambiguous on this point and his parol testimony regarding promises made to him by Navy recruiters must therefore be credited in determining whether to grant a preliminary injunction.

I. Reviewability of Enlistment Contracts

The Navy argues initially that Lundgrin is asking the courts to interfere improperly with internal military affairs. The general rule is that discretionary military decisions concerning soldiers lawfully in the service are beyond the review of civilian courts. Orloff v. Willoughby, 345 U.S. 83, 73 S.Ct. 534, 97 L.Ed. 842 (1953). It has long been held, however, that civilian courts will construe the rights and obligations arising under an enlistment contract. United States v. Grimley, 137 U.S. 147, 11 S.Ct. 54, 34 L.Ed. 636 (1890); Quinn v. Brown, 561 F.2d 795 (9th Cir. 1977); Shelton v. Brunson, 465 F.2d 144 (5th Cir. 1972). And see Pfile v. Corcoran, 287 F.Supp. 554, 557 (D.Colo.1968), where the court, recognizing that an enlistee's status changes from civilian to soldier at the moment of enlistment, stated that this ". . . change of status does not invalidate the contractual obligation of either party or prevent the contract from being upheld, under proper circumstances, by a court of law."

We hold that a claim alleging breach of an enlistment contract is not an internal military affair and is properly reviewable in the civilian courts.

II. Denial of Motion for Preliminary Injunction

The function of a preliminary injunction is to preserve the status quo pending a final determination of the rights of the parties. Penn v. San Juan Hospital, Inc., 528 F.2d 1181 (10th Cir. 1975); Continental Oil Co. v. Frontier Refining Co., 338 F.2d 780 (10th Cir. 1964). Since the grant or denial of a preliminary injunction is within the sound discretion of the trial court, we may set aside the court's action only if it constituted an abuse of discretion. Id.

In defining what a movant must show to support the grant of a preliminary injunction, we have said:

"In hearings upon motions for temporary or preliminary injunctive relief, the burden is upon the one requesting such relief to make a prima facie case showing a reasonable probability that he will ultimately be entitled to the relief sought. The applicant has the additional burden of showing a right to the specific injunctive relief sought because of irreparable injury that will result if the injunction is not granted. There must exist a probable right and a probable danger."

Crowther v. Seaborg, 415 F.2d 437, 439 (10th Cir. 1969) (emphasis added). This test has often been expanded into four prerequisites which the moving party must establish: (1) substantial likelihood that the movant will eventually prevail on the merits; (2) a showing that the movant will suffer irreparable injury unless the injunction issues; (3) proof that the threatened injury to the movant outweighs whatever damage the proposed injunction may cause the opposing party; and (4) a showing that the injunction, if issued, would not be adverse to the public interest. 7 Moore's Federal Practice P 65.04(1); 11 Wright & Miller, Federal Practice and Procedure § 2948. And see e. g., Sierra Club v. Hathaway, 579 F.2d 1162 (9th Cir. 1978); Hardin v. Houston Chronicle Publishing Co., 572 F.2d 1106 (5th Cir. 1978).

Here the district court carefully reviewed Lundgrin's case in terms of the four stated requirements. Rec., supp. vol. II, at 24-32. Although the judge found that Lundgrin met his burden on three of these factors, he concluded that Lundgrin failed to demonstrate a likelihood of success on the merits.

Where the movant prevails on the other factors, this court has adopted the Second Circuit's liberal definition of the "probability of success" requirement:

" 'To justify a temporary injunction it is not necessary that the plaintiff's right to a final decision, after a trial, be absolutely certain, wholly without doubt; if the other elements are present (i. e., the balance of hardships tips decidedly toward plaintiff), it will ordinarily be enough that the plaintiff has raised questions going to the merits so...