Von Hoffburg v. Alexander, 77-3519

• Decision Date: 14 April 1980
• Docket Number: No. 77-3519,77-3519
• Citation: 615 F.2d 633
• Parties: Marie Von HOFFBURG, Plaintiff-Appellant, v. Clifford ALEXANDER, etc., et al., Defendants-Appellees.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 633

615 F.2d 633

Marie Von HOFFBURG, Plaintiff-Appellant, v. Clifford ALEXANDER, etc., et al., Defendants-Appellees.

No. 77-3519.

United States Court of Appeals Fifth Circuit.

April 14, 1980.

H. Christopher Coates, Atlanta, Ga., Laughlin McDonald, Neil Bradley, Morris Dees, Jr., John L. Carroll, Montgomery, Ala., for plaintiff-appellant.

Alfred Mollin, Atty., Civil Div., Dept. of Justice, Allen H. Sachsel, Robert L. Brittigan, Major JAGC, Litigation Div., Office of Judge Advocated Gen., Washington, D. C., for defendants-appellees.

Appeal from the United States District Court for the Middle District of Alabama.

Before TUTTLE, FAY and THOMAS A. CLARK, Circuit Judges.

FAY, Circuit Judge:

Plaintiff Marie Von Hoffburg was honorably discharged from the United States Army because of her alleged homosexual tendencies. Just prior to her discharge, she instituted this action against the Secretary of the Army and others, seeking a declaratory judgment, injunctive relief and monetary damages. The United States District Court for the Middle District of Alabama dismissed the complaint without prejudice because plaintiff had failed to exhaust her administrative remedies.

Plaintiff now appeals the dismissal of her action, claiming that exhaustion of administrative remedies is futile in this case, and that the available administrative procedures and remedies are inadequate to provide her the relief she seeks.

We hold that plaintiff's case does not fit within the futility exception to the administrative exhaustion requirement. We affirm the dismissal without prejudice of plaintiff's claims for declaratory and injunctive relief because those claims should be reviewed, in the first instance, by the military's own internal administrative system. We reverse, however, the dismissal of plaintiff's claim for monetary damages, since such relief is not within the scope of remedies which the Army is empowered to award. We direct the district court to vacate the order of dismissal of the money damage claim and to hold the cause in abeyance until plaintiff has completed the administrative appeal of her other claims.

I. The Facts

Plaintiff Marie L. Von Hoffburg ¹ enlisted in the United States Army on January 2, 1975 for a term of three years. During her first two years of active duty, plaintiff received two promotions and established a good military record. On November 11, 1976 plaintiff was issued a marriage license and was married to Kristian L. Von Hoffburg, a female-to-male transsexual, by a probate judge in Coffee County, Alabama. ² Kristian Von Hoffburg was formerly a member of the United States Army under the name of Linda Louise Bowers, ³ and his ⁴ military records reflect that he was a female both at the time of his enlistment in 1974 and the time of his discharge in 1975.

After her marriage, plaintiff applied for and was granted Basic Allowance for Quarters (BAQ) at the rate available to married individuals. On January 24, 1977 personnel in the Identification Card Section of the Office of the Adjutant General, Fort Rucker, Alabama, reported to the Fort Rucker Criminal Investigation Division (CID) that an individual previously known as Linda Bowers had obtained a dependent military identification card as the dependent husband of the plaintiff. Since both the plaintiff and Linda Bowers were known to be female, CID immediately commenced an investigation to determine if plaintiff had committed any criminal act with respect to her application for BAQ payments. Defendants Lawrence E. Ingold and William Faircloth, special agents of the CID, went to plaintiff's place of duty, placed plaintiff under apprehension, and searched her purse. Plaintiff was then transported to the CID field office where defendant Ingold conducted an additional search and seized from plaintiff's purse a letter written by Kristian Von Hoffburg to plaintiff's mother. Plaintiff was subsequently released from custody.

As a result of the CID's investigation, the Staff Judge Advocate ⁵ issued a memorandum dated March 31, 1977 advising that plaintiff's marriage to Kristian Von Hoffburg was a nullity, that plaintiff could be administratively eliminated from the Army, and that plaintiff's BAQ payments should be terminated, with prior payments to be collected out of her pay. Shortly thereafter, on April 4, plaintiff's company commander, defendant Charles L. Goldman, terminated plaintiff's basic allowance for quarters. On April 6, 1977 defendant Faircloth arrested the plaintiff, searched her person, and subsequently released her from custody. The following week, on April 13, plaintiff applied to her commanding officer to have her named changed on Army records from Marie L. Sode to Marie L. Von Hoffburg. The application was denied the same day.

The events of April, 1977 culminated with company commander Goldman's recommendation that plaintiff be discharged from the Army in accordance with paragraph 13-5b(5) of Army Regulation (AR) 635-200. ⁶ Plaintiff's brigade commander, defendant G. F. Powers, convened an administrative elimination board of five officers to determine whether plaintiff should be discharged on grounds of homosexual tendencies. After several days of hearings in June, 1977 the board recommended plaintiff's discharge, ⁷ and on July 20, 1977 plaintiff was honorably discharged from the United States Army.

Following her discharge from the Army, Marie Von Hoffburg made no application for review by the Army Board for Correction of Military Records (ABCMR). Instead, she filed suit in district court seeking a declaratory judgment that the Army regulation under which she was discharged is unconstitutionally vague and, as applied to her, is an unconstitutional abridgment of her rights to freedom of thought and association, privacy, substantive due process, freedom of religion, and freedom from cruel and unusual punishment. Plaintiff asserts that the Army's refusal to recognize her marriage to Kristian Von Hoffburg, the termination of her BAQ payments, and the attempt to discharge her violate her rights guaranteed by article IV, section 1 of the Constitution and 28 U.S.C. §§ 1738 and 1739. She further alleges that the denial of her request to have her name changed on Army records violates her right to liberty guaranteed by the fourth, fifth and ninth amendments, and that the Army's arrests and searches of her and the seizure of her property violated her fourth and fifth amendment rights. Plaintiff seeks to enjoin the Army from failing to recognize her marriage to Kristian Von Hoffburg and from further unlawful arrests and searches. She also seeks to enjoin the Army from permanently discharging her. ⁸ Finally, plaintiff requests monetary damages in the amount of $50,000.00 to compensate her for the alleged deprivation of her rights.

The district court never reached the merits of plaintiff's case; it granted the defendant's motion for summary judgment and dismissed the complaint on the ground that Marie Von Hoffburg had failed to exhaust her administrative remedies. Memorandum Opinion, Record at 655. Plaintiff now appeals from the district court's order of dismissal. We agree that plaintiff is required to exhaust her administrative remedies prior to obtaining judicial review, and we therefore affirm the dismissal without prejudice of all but one of plaintiff's claims. We reverse the dismissal of plaintiff's claim for monetary damages because it cannot adequately be resolved through administrative channels.

II. The Exhaustion of Administrative Remedies Doctrine and Its Exceptions

A. Exhaustion in General

Under the rule requiring exhaustion of administrative remedies prior to judicial review, a party may not ask a court to rule on an adverse administrative determination until he has availed himself of all possible remedies within the agency itself. Myers v. Bethlehem Shipbuilding Corp., 303 U.S. 41, 58 S.Ct. 459, 82 L.Ed. 638 (1938). The major purpose of the exhaustion doctrine is to prevent the courts from interfering with the administrative process until it has reached a conclusion. In McKart v. United States, 395 U.S. 185, 89 S.Ct. 1657, 23 L.Ed.2d 194 (1969) the Supreme Court noted that because the administrative agency is created as a separate entity and invested with certain powers and duties, the courts should not interfere with an agency until it has completed its action or clearly exceeded its jurisdiction. Id. at 194, 89 S.Ct. at 1662. The Court enumerated the practical notions of judicial efficiency which are served by the exhaustion doctrine. A complaining party may be successful in vindicating his rights in the administrative process; if he is required to pursue his administrative remedies, the courts may never have to intervene. When administrative channels are bypassed, subsequent judicial review may be hindered by the litigant's failure to allow the agency to make a factual record, exercise its discretion, or apply its expertise. In addition, notions of administrative autonomy require that an agency be given the opportunity to discover and correct its own errors before a court is called to render judgment. Finally, it is possible that frequent and deliberate flouting of administrative processes could weaken the effectiveness of an agency by encouraging people to ignore its procedures. 395 U.S. at 194-95, 89 S.Ct. at 1662-1663.

B. Exhaustion in the Military Context

The exhaustion doctrine has been applied with some irregularity in decisions of the various circuits; ⁹ however, this court has consistently held that a plaintiff challenging an administrative military discharge will find the doors of the federal courthouse closed pending exhaustion of available administrative remedies. Hodges v. Callaway, 499 F.2d 417 (5th Cir. 1974); accord, Davis v. Secretary of the Army, 440 F.2d 817 (5th Cir. 1971); Stanford v. United States, 413 F.2d 1048 (5th Cir. 1969); Tuggle v. Brown, 362 F.2d 801 (5th Cir.), cert. denied, 385 U.S. 941, 87...