Poole v. Rourke

Decision Date23 December 1991
Docket NumberCiv. No. S-87-1036 MLS.
Citation779 F. Supp. 1546
PartiesBobby W. POOLE, Staff Sergeant, United States Air Force, Plaintiff, v. Russell A. ROURKE, Secretary of the Air Force, etc., et al., Defendants.
CourtU.S. District Court — Eastern District of California



Louis N. Hiken, San Francisco, Cal., for plaintiff.

Joseph E. Maloney, Asst. U.S. Atty., Sacramento, Cal., for defendants.


MILTON L. SCHWARTZ, District Judge.

This matter is before the court on (1) defendants' motion to transfer the case to the United States Claims Court because of this court's alleged lack of jurisdiction; (2) defendants' motion to amend the judgment filed February 21, 1991, to comply with alleged limits on this court's jurisdiction; and (3) plaintiff's motion for attorney fees. Both of defendants' motions relate to the court's subject matter jurisdiction under the Little Tucker Act, which places a $10,000 cap on the jurisdiction of district courts in non-tort cases against the United States. 28 U.S.C. § 1346(a)(2) (1988).1 Defendants contend that because the award sought in this case exceeds $10,000, the action should be transferred to Claims Court. Likewise, they argue that the February 21, 1991 judgment should be amended to avoid exceeding the $10,000 jurisdictional cap.

Plaintiff moves for attorney fees under the Equal Access to Justice Act ("EAJA"), codified at 28 U.S.C. § 2412, based on his success in obtaining summary judgment: (1) setting aside his honorable discharge; (2) ordering defendants to constructively reinstate him from the time he was improperly discharged through the date on which his term of service would have expired and to correct his military record to reflect the constructive reinstatement; (3) awarding him back pay and benefits to which he would have been entitled had he not been improperly discharged; (4) ordering defendants to grant plaintiff appropriate retirement benefits; and (5) awarding plaintiff his costs of suit. Under EAJA, a successful party in a suit against the United States2 is entitled to attorney fees and costs if the government's position is not substantially justified. 28 U.S.C. § 2412(d)(1)(A) (1988).


Plaintiff, Bobby W. Poole, enlisted in the Air Force on October 13, 1972, after having served in the Army for three years. In a random urinalysis administered on March 20, 1986, plaintiff tested positive for a metabolite of THC, the psychoactive ingredient in marijuana. At that time, plaintiff had been enlisted in military service for approximately seventeen years and was a material facility supervisor who held the rank of technical sergeant at McClellan Air Force Base. Throughout his Air Force enlistment, plaintiff routinely received very strong airman performance reviews.

Plaintiff initially denied having used marijuana, but nonetheless accepted nonjudicial (Article 15) punishment for that offense. His punishment entailed a reduction in rank from technical sergeant to staff sergeant and a forfeiture of $700 in salary over a two-month period. Plaintiff appealed the punishment, but a superior commander denied the appeal on June 27, 1986. Subsequently, plaintiff admitted having used marijuana the night before the urinalysis was administered.

On July 18, 1986, the newly installed commander of plaintiff's squadron, Lt. Col. Jerry Price, notified plaintiff that he intended to recommend plaintiff's discharge from the Air Force pursuant to Air Force Regulation ("AFR") 39-10, para. 5-49(c).3 A three-person discharge board ("Board") convened on October 22, 1986, to consider plaintiff's case. The Board received various types of documentary evidence and heard oral testimony. Although acknowledging that, as far as he knew, plaintiff had "done an excellent job at whatever he's been given," Lt. Col. Price recommended plaintiff's discharge "because of his position as an NCO and the fact that he did use illegal drugs and the Air Force policy and position is normally NCO's will not be retained if they use drugs.... Whether he can be rehabilitated is not an issue."4 Lt. Col. Price indicated that his was a special duty unit with standards higher than those of a normal Air Force unit, that the unit was often stationed in areas where drugs were plentiful, and that plaintiff's duties involved handling potentially dangerous mechanized equipment. Lt. Col. Price concluded that "plaintiff does not deserve to be in the Air Force."

Plaintiff did not testify on his own behalf. However, he submitted an unsworn written statement for the Board's review in which he described the marijuana incident.5 Plaintiff introduced some testimony, although most of the evidence on his behalf was found in the numerous affidavits he submitted. These affidavits, which comprise more than twenty-five in number, were written by plaintiff's supervisors and colleagues over the years. They portray a dedicated, motivated professional who got along well with people and had the ability to inspire his subordinates.6 Of those affiants who addressed the subject, all strongly recommended that the Air Force offer plaintiff probation and rehabilitation.

None of the instructions to the Board are in the record. Perhaps most significant, it cannot be determined whether the Board received any instructions regarding probation and rehabilitation.

At the conclusion of the hearing, the Board met in closed session and, by majority vote, found that plaintiff had used marijuana on or about March 20, 1986. It then recommended that he be honorably discharged without probation or rehabilitation. The Board gave no reasons for the recommendation to refuse plaintiff probation and rehabilitation.7

On April 17, 1987, the discharge authority (the base commander) reviewed and approved the recommendations to discharge plaintiff and not to offer him probation and rehabilitation. On June 3, 1987, the Major Air Command Acting Director of General Law reviewed and approved the recommendations. On June 5, 1987, the Major Air Command Deputy Chief of Staff for Personnel reviewed and approved the recommendations. The Secretary of the Air Force subsequently reviewed and approved the recommendations and on June 29, 1987, directed the administrative discharge to be executed. On July 10, 1987, plaintiff applied to the Air Force Board for Correction of Military Records ("AFBCMR") for review of his pending discharge.8

On July 16, 1987, plaintiff brought the present action against the Secretary of the Air Force, et al., seeking, inter alia, a temporary restraining order and preliminary and permanent injunctive relief prohibiting the Air Force from discharging him pending resolution of his administrative appeal and federal court review. On July 21, 1987, this court granted plaintiff a temporary restraining order which was subsequently extended until August 10, 1987, directing the Air Force to refrain from discharging plaintiff until after the court could hear arguments on his motion for preliminary injunction.

On August 7, 1987, the court denied plaintiff's motion for preliminary injunction. Relying upon Hartikka v. United States, 754 F.2d 1516, 1518 (9th Cir.1985), the court held that where a party seeks to enjoin implementation of a military personnel decision, that party must make a much stronger showing of irreparable injury than in the usual case seeking injunctive relief. Thus, the normal incidents and harms associated with discharge would not be sufficient injury under Hartikka to enjoin a military discharge. Some extraordinary injury must be demonstrated. Extraordinary injury had not been demonstrated in plaintiff's case because any stigma plaintiff might experience followed from his admitted, proscribed conduct and not from the discharge itself. The court held that plaintiff would suffer only the normal incidents of discharge, however severely they may affect him.

On August 11, 1987, plaintiff was discharged from the Air Force. Pending review by the AFBCMR, further proceedings in this court were stayed.

On September 12, 1989, the AFBCMR denied plaintiff's application for correction of his military record. It found plaintiff's discharge proper because there was no indication that his urine sample was improperly processed or that the positive result was erroneous—indeed, plaintiff later admitted that he had used marijuana prior to the urinalysis. The AFBCMR also found that proper procedures were used to discharge plaintiff and to review that discharge in accordance with AFR 39-10, para. 5-49(c). The AFBCMR stated that "we have seen no evidence which would cause us to conclude that reviewing authorities considered erroneous information or that the applicant's substantive rights were violated." Further, the AFBCMR was "unpersuaded" that the applicant was improperly denied probation and rehabilitation.9

After receiving the AFBCMR's decision, this court filed its Memorandum and Order on February 5, 1991, concluding that:

Defendants' decision to discharge plaintiff for misconduct based on drug abuse, pursuant to AFR 39-10, para. 5-49(c), was arbitrary and capricious, and an abuse of discretion, for the following separate and independent reasons:
(1) Paragraph 5-49(c) contains no controlling standards for determining the circumstances and factors to be weighed in ascertaining when an NCO should be offered probation and rehabilitation in lieu of discharge. Without such standards defendants' conduct was necessarily arbitrary.
(2) There is nothing in the administrative record that could possibly support an inference that defendants weighed and considered any evidence whatever, in arriving at their decision to discharge plaintiff rather than offer him probation and rehabilitation, other than the evidence as to whether he ingested marijuana on March 20, 1986.
(3) There is nothing in the administrative record that could possibly support an inference that defend

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