Pauls v. Secretary of Air Force

• Decision Date: 27 March 1972
• Docket Number: No. 71-1044.,71-1044.
• Citation: 457 F.2d 294
• Parties: Robert A. PAULS, etc., et al., Plaintiffs-Appellees, v. The SECRETARY OF the AIR FORCE, et al., Defendants-Appellants.
• Court: U.S. Court of Appeals — First Circuit

457 F.2d 294 (1972)

Robert A. PAULS, etc., et al., Plaintiffs-Appellees, v. The SECRETARY OF the AIR FORCE, et al., Defendants-Appellants.

No. 71-1044.

United States Court of Appeals, First Circuit.

Heard November 16, 1971.

Decided March 27, 1972.

Morton Hollander, Atty., Dept. of Justice, with whom L. Patrick Gray III, Asst. Atty. Gen., Julio Morales-Sanchez, U. S. Atty., Alan S. Rosenthal, and William Kanter, Attys., Dept. of Justice, were on brief, for defendants-appellants.

Harvey B. Nachman, San Juan, P. R., with whom Nachman, Feldstein & Gelpi, San Juan, P. R., was on brief, for plaintiffs-appellees.

Before COFFIN, Circuit Judge, VAN OOSTERHOUT^*, Senior Circuit Judge, and STEPHENSON^*, Circuit Judge.

VAN OOSTERHOUT, Senior Circuit Judge.

The Secretary of the Air Force and named Air Force officer defendants have taken this timely appeal from judgment entered by the District Court, filed December 31, 1970, adjudging the plaintiffs in these consolidated cases, Captain Pauls and Captain Criscuolo, be retained in active duty in the United States Air Force pending final disposition of this litigation; that the case be remanded to the Air Force Board for the Correction of Military Records; that disclosure be made of pertinent statistical data requested by plaintiffs to the extent that it is unclassified; and that the Board make detailed findings of fact. The court retained jurisdiction "for review of final determination by the Secretary of the Air Force of plaintiffs' administrative petitions."

Since, as will hereinafter appear, we dispose of this appeal on jurisdictional grounds, a detailed statement of the voluminous factual matter disclosed by the record is not required. Pauls and Criscuolo were captains in the Air Force stationed in Puerto Rico. Pauls was initially scheduled to be released from duty on June 30, 1967, and Criscuolo on June 30, 1968, in accordance with Air Force Regulation 36-12 since they had been considered and passed over for promotion to major on at least two occasions. Due to the needs in Southeast Asia, both officers were retained in the Air Force at the pleasure of the Secretary. During the period of extension both officers were again considered for promotion and passed over.

In 1969 the Secretary of Defense announced the implementation of Project 703 under which passed-over officers such as plaintiffs who had not served eighteen years were to be separated from service on March 31, 1970. At the request of each of the plaintiffs, the Air Force extended their service to June 30, 1970. Six hundred officers have been released under Project 703. On the critical date for determining length of service, Criscuolo had active duty of fourteen years and five months and Pauls of seventeen years and eight months.

These actions were commenced on June 26, 1970. An order was entered in each case on June 29, 1970, restraining the release of each plaintiff from the Air Force. Hearing was set on plaintiffs' motion for temporary injunction on July 6. The hearing was continued. The temporary restraining order was extended by stipulation. Defendants have filed motion to vacate the temporary restraining order and have resisted the application for temporary injunction.

Defendants urge, among other grounds, that the court acquired no jurisdiction over the plaintiffs' action and thus had no authority to issue a restraining order or a temporary injunction. On August 13, 1970, hearing was held on the application for temporary injunction and defendants' motion to vacate the temporary restraining order. The order entered on December 31, 1970, heretofore referred to, in effect grants the temporary injunction.

Plaintiffs' basic contention is that their supervisory officers in making periodic Officer Effectiveness Reports (O.E.R.s) strictly followed the regulations relating to the rating system and gave plaintiffs ratings which under the regulations would put them in the top 15% of the officers eligible for promotion, while other reviewing officers in disregard of the regulations gave their personnel inflated ratings. The O.E.R. rating reports are placed in each officer's military records and are part of the record considered by officer promotion boards in determining which officers are entitled to promotion. The number of officers given promotion depends on the number of officers needed in each officer category and the quota of officers needed in the higher grades is generally considerably less than the available supply with the result that many loyal and capable officers cannot be promoted or retained in the service. Plaintiffs' contention is that the inflated ratings given other officers in violation of the regulations resulted in placing the plaintiffs well below the top 15% of officers eligible to be considered for promotion.

Affidavits of many of the officers making plaintiffs' O.E.R.s were filed to support plaintiffs' contentions that they were capable officers entitled to promotion and that affiants' strict adherence to the regulations placed plaintiffs in an unfavorable position compared to some other officers who had received inflated ratings from other rating officers.

After exhausting available administrative procedures within the service to correct their records, plaintiffs sought correction of records by the Air Force Board for the Correction of Military Records pursuant to 10 U.S.C.A. § 1552. The Board afforded plaintiffs a full evidentiary hearing and denied relief. The suits now before us followed.

The relief sought is to enjoin defendants (1) from releasing plaintiffs from active service, (2) from refusing to correct plaintiffs' military records to show that they had not been passed over for promotion, and (3) from refusing to delete certain unfair O.E.R.s from their military records.

Defendants' present appeal is from the District Court's order of December 31, 1970, enjoining plaintiffs' release from active service during the pendency of this litigation and remanding the case to the Board directing discovery and detailed findings of fact. The defendants upon appeal present the following questions for review:

"1. Whether the district court had jurisdiction over plaintiffs\' actions, which were brought to set aside their five passovers for promotion in the Air Force.

2. Whether the district court erred in adjudicating plaintiffs\' rights, if any, under the Freedom of Information Act, 5 U.S.C. 552, and in ordering the Air Force to disclose certain statistical data to plaintiffs under that Act.

3. Whether the Air Force Board for the Correction of Military Records violated any applicable statute or regulation in denying plaintiffs\' claim for correction of their records.

4. Whether the district court had any basis upon which it could properly enjoin plaintiffs\' release from active duty."

Plaintiffs filed a brief resisting the defendants' contentions and asserted in addition that this court has no appellate jurisdiction as the judgment appealed from is not a final judgment.

We shall first consider the issue of our jurisdiction to entertain the appeal. Courts of appeal have only such jurisdiction as is conferred upon them by statute. Two attacks on our jurisdiction are made. The first attack, made by the Government, is that the trial court lacks subject matter jurisdiction to entertain the present case. It is well-established law that military officers serve at the pleasure of the President and have no constitutional right to be promoted or retained in service and that the services of an officer may be terminated with or without reason. Reaves v. Ainsworth, 219 U.S. 296, 306, 31 S.Ct. 230, 55 L.Ed. 225; Orloff v. Willoughby, 345 U.S. 83, 93-94, 73 S.Ct. 534, 97 L.Ed.2d 842; Cortright v. Resor, 2 Cir., 447 F.2d 245, 253-254; Arnheiter v. Chafee, 9 Cir., 435 F.2d 691; Muldonian v. United States, 432 F.2d 443, 447, 193 Ct.Cl. 99; Payson v. Franke, 108 U.S.App.D.C. 368, 282 F.2d 851, 854.

Plaintiffs concede in their brief that the trial court has no jurisdiction to order the promotion of an officer or to overrule the decision not to promote. Plaintiffs state that their complaint is not based upon their right to promotion but upon their right to have their multiple O.E.R.s corrected under 10 U.S.C.A. § 1552. They urge that the Correction Board did not comply with applicable statutes and regulations in the manner it considered plaintiffs' cases, particularly alleged failure to make detailed findings of fact and its failure to make available to plaintiffs requested information. They urge that the Board is obligated to follow applicable statutes and regulations.

The Fifth Circuit in Mindes v. Seaman, 5 Cir., 453 F.2d 197, 201 (1971), in a case involving a rather similar factual situation lends support to plaintiffs' position. The court holds:

"We have distilled the primary conclusion that a court should not review internal military affairs in the absence

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