National Ass'n of Con. Vets. v. Secretary of Defense, Civ. A. No. 79-0211.

• Citation: 487 F. Supp. 192
• Decision Date: 16 November 1979
• Docket Number: Civ. A. No. 79-0211.
• Parties: NATIONAL ASSOCIATION OF CONCERNED VETERANS et al. v. SECRETARY OF DEFENSE et al.
• Court: U.S. District Court — District of Columbia

487 F. Supp. 192

NATIONAL ASSOCIATION OF CONCERNED VETERANS et al. v. SECRETARY OF DEFENSE et al.

Civ. A. No. 79-0211.

United States District Court, District of Columbia.

November 16, 1979.

COPYRIGHT MATERIAL OMITTED

Barton F. Stichman, David F. Addlestone, National Veterans Law Center, Washington, D. C., for plaintiffs; Stephanie Klein, Kitty Juniper, law students, of counsel.

Earl J. Silbert, U. S. Atty., Royce C. Lambreth, Kenneth M. Raisler, Asst. U. S. Attys., Washington, D. C., for defendants; Colonel Arnold I. Melnick, Lt. Colonel Barry P. Steinberg, Captain Roy Dodson, Office of the Judge Advocate General, Washington, D. C., of counsel.

MEMORANDUM OPINION

CHARLES R. RICHEY, District Judge.

This case is before the Court on plaintiffs' motion for a preliminary injunction and defendants' motion for summary judgment or, in the alternative, dismissal. In addition, plaintiffs have also moved for certification as a class action. The Court is persuaded that a limited certification is appropriate and further, that the class is entitled to injunctive relief with respect to one portion of its motion for a preliminary injunction. The Court also finds that the defendants' motion for summary judgment or dismissal should be granted in all respects, except for the publication of Annex H and the indexing of Annexes C1, D & F. Before discussing the merits of the motions which the parties have filed, the Court briefly summarizes the background of this litigation.

I. BACKGROUND

Plaintiffs, two nonprofit organizations and seven individuals, have instituted a three-pronged legal assault on the Discharge Review Boards of the various branches of the armed services. The individual plaintiffs consist of three currently enlisted members of the Armed Forces and four veterans, three of whom retain Undesirable Discharges and are eligible to apply to a Discharge Review Board for recharacterization. The fourth veteran retains a less than Honorable Discharge, having unsuccessfully applied for an upgrade. The organization plaintiffs, the National Association of Concerned Veterans ("NACV") and the National Military Discharge Review Project are devoted to advancing the interests and rights of veterans; as part of their activities, the organizations are concerned with the legal process surrounding the Discharge Review Boards. The defendants in this action are the Secretary of Defense, the Department of Defense and the Departments of the Army, Navy and Air Force.

The Discharge Review Boards established by the various branches of the armed services are the focal point of this suit. Upon separation from active duty service, veterans may receive one of three types of administrative discharges: 1) Honorable; 2) General or Under Honorable Conditions ("General"); or 3) Undesirable or Under Other than Honorable Conditions ("Undesirable"). The administrative discharge program does not include punitive discharges—Bad Conduct Discharges or Dishonorable Discharges—which are imposed only as part of a special or general court-martial sentence following conviction. An individual holding either an Honorable or a General Discharge is eligible for all benefits under laws administered by the Veterans Administration. An Undesirable Discharge not only entitles a veteran to no benefits but also carries a serious stigma in civilian activities. Pursuant to 10 U.S.C. § 1553, each military department has established a Discharge Review Board ("DRB") with power to review, modify or correct administrative discharges. The DRB panels are comprised of five officers each and their decisions are subject to review and modification by the appropriate Secretary.

Plaintiffs' seventeen-count complaint is divisible into three broad areas. First, in count I, plaintiffs assert that the various branches of the armed services have failed to comply with the mandate of 38 U.S.C. § 3103(e)(1). This provision states that changes in discharge status shall result in the accrual of veterans' benefits only when the DRB making the upgrade acts "under published uniform standards (which shall be historically consistent with criteria for determining honorable service and shall not include any criterion for automatically granting or denying such change or issuance) and procedures generally applicable to all persons." Second, counts II through IV are brought essentially under the Freedom of Information Act, 5 U.S.C. §§ 552(a)(1) & (2); these counts seek to compel the publication or distribution of certain rules which the plaintiffs contend are generally applied throughout the discharge review process. Plaintiffs also demand that these rules be indexed and that all DRB applicants receive actual notice of their contents through the mail. Finally, counts V through XVII concern certain rulemaking petitions filed with the defendants pursuant to 5 U.S.C. § 553(e). Plaintiffs contend that, by law, the DRBs must not only apply these rules in their adjudications, but also issue them as part of a formal rulemaking proceeding. Accordingly, they seek to compel the defendants to publish and adopt the proposed rules.

Plaintiffs have moved for a preliminary injunction with respect to counts II through IV, their claims under the Freedom of Information Act. Defendants have moved for summary judgment or, in the alternative, dismissal of all aspects of plaintiffs' complaint. Defendants also submit that the plaintiffs lack standing and do not merit class certification. The Court, however, is persuaded that some of the plaintiffs possess standing and further, that limited class certification is appropriate. The Court also grants in part plaintiffs' motion for a preliminary injunction. Defendants' motion for summary judgment or dismissal is granted with respect to plaintiffs' rulemaking petitions, and their claim under 38 U.S.C. § 3103, and several of their claims under the Freedom of Information Act.

II. PRELIMINARY MATTERS

A. Standing

The Court finds that several of the individual plaintiffs possess standing to bring their claims under the Freedom of Information Act (counts II through IV demanding, inter alia, publication in the Federal Register) and the Administrative Procedure Act (counts V through XVII seeking adoption of proposed rules). However, the Court also concludes that this particular group of plaintiffs lacks standing to seek redress under 38 U.S.C. § 3103, the statute which requires the defendants to review discharges under "published uniform standards." The NACV, however, does possess standing to raise this issue. Accordingly, defendants' motion to dismiss for lack of standing is denied.

1. Freedom of Information Act and Administrative Procedure Act Claims.

Defendants' contention that plaintiffs lack standing to bring suit under both the Freedom of Information Act and the Administrative Procedure Act is easily resolved. In Natural Resources Defense Council, Inc. v. SEC, 196 U.S.App.D.C. 124, at 135, 606 F.2d 1031, at 1042 (D.C. Cir.1979), the court of appeals for this circuit held that owners of corporate shares who were interested in voting "in a financially prudent and ethically sound manner" had standing to seek to compel the SEC to conduct proceedings incident to their petitions for rulemaking under the Administrative Procedure Act. The court concluded, "Their interest was judicially cognizable, personal to them, and was arguably impaired by the lack of . . . information." Id., at 135, 606 F.2d at 1042. Here, three plaintiffs, Jamal Mahdi, Revis Hudson, and Reginald Dockett, retain Undesirable Discharges and thus are eligible to apply to the appropriate DRB for recharacterization. Both Mahdi and Hudson petitioned the Department of Defense to adopt the rules proposed in counts V through XVII and all three individuals are arguably harmed by the defendants' failure to adopt the proposed rules. Absent these purportedly mandatory reforms, their pursuit of a just result from a DRB would be seriously impaired. Thus, the injury which they have suffered could well be redressed by a favorable opinion from this Court; as a result, the exercise of the Court's remedial powers would not be gratuitous. See Simon v. Eastern Kentucky Welfare Rights Organization, 426 U.S. 26, 38, 96 S.Ct. 1917, 1924, 48 L.Ed.2d 450 (1976). In sum, these individuals possess a personal stake in the outcome of the controversy sufficient to warrant the invocation of federal court jurisdiction. Warth v. Seldin, 422 U.S. 490, 498-99, 95 S.Ct. 2197, 2204-05, 45 L.Ed.2d 343 (1975). Because these three individuals possess standing to bring the claims asserted in counts V through XVII of the complaint, the Court need not resolve the rights under article III of either the organization plaintiffs or the remaining individuals. Accordingly, defendants' motion to dismiss counts V through XVII for lack of standing shall be dismissed.

Plaintiffs also have standing to bring their Freedom of Information Act claims. Indeed, the Court is unaware of any traditional standing requirement in such suits. Congress certainly possesses the power to clarify and define the rights of individuals under article III of the Constitution and it plainly intended that anyone could sue under the Act. Thus, the plaintiffs have standing to bring counts II through IV.

2. Plaintiffs' Claim Under 38 U.S.C. § 3103.

Count I of plaintiffs' complaint seeks redress under 38 U.S.C. § 3103(e)(1). This statute provides in pertinent part:

Notwithstanding any other provision of law, (A) no benefits under laws administered by the Veterans' Administration shall be provided, as a result of a change in or new issuance of a discharge under section 1553 of title 10, except upon a case-by-case review by the board of review concerned, subject to review by the Secretary concerned, under such section, of all the evidence and factors in each case under published uniform standards (which shall be historically consistent with criteria for determining honorable service and

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