Walters v. Secretary of Defense

• Decision Date: 02 March 1982
• Docket Number: Civ. A. No. 81-962.
• Citation: 533 F. Supp. 1068
• Parties: Robert A. WALTERS, Plaintiff, v. SECRETARY OF DEFENSE, et al., Defendants.
• Court: U.S. District Court — District of Columbia

533 F. Supp. 1068

Robert A. WALTERS, Plaintiff, v. SECRETARY OF DEFENSE, et al., Defendants.

Civ. A. No. 81-962.

United States District Court, District of Columbia.

March 2, 1982.

Barton F. Stichman, David F. Addelstone, Ronald Simon, Washington, D.C., for plaintiff.

John Oliver Birch, Asst. U. S. Atty., Washington, D.C., for defendants.

MEMORANDUM OPINION

BARRINGTON, D. PARKER, District Judge.

In this action plaintiff Robert Walters seeks declaratory and injunctive relief against the Secretary of Defense and other officials. He seeks to upgrade the character of his discharge from the United States Marine Corps from general to honorable. In 1973 Walters received a general discharge following an administrative proceeding in which he was found involved in drug abuse activity disclosed through a compelled urinalysis examination. He contends that his discharge must be recharacterized as honorable in light of this Court's decision in Giles v. Secretary of the Army, 475 F.Supp. 595 and 84 F.R.D. 374 (D.D.C.1979), modified, 627 F.2d 554 (D.C.Cir.1980). That class action proceeding resulted in an order upgrading all less than honorable discharges given U.S. Army personnel based in whole or in part on evidence of drug abuse derived from compelled urinalyses. Counsel for Robert Walters also seeks classwide relief for former servicemembers of the Marine Corps, Navy and Air Force, claiming that they are entitled to the same relief as that granted former Army servicemembers in Giles.

The plaintiff has filed a motion for summary judgment on the authority of Giles and a motion for class certification. Defendants have filed a cross motion for summary judgment asserting, first, that plaintiff's action is barred by the statute of limitations; second, that the Court should not exercise its jurisdiction because plaintiff failed to exhaust his administrative remedies; and third, that because the United States Court of Military Appeals in two recent cases¹ ruled that the compelled taking of body fluids is not violative of the self-incrimination prohibition of Article 31, Uniform Code of Military Justice (UCMJ), 10 U.S.C. § 831 (1975),²Giles no longer provides authority for the relief plaintiff seeks. The defendants also oppose class certification.

After consideration of the parties' legal memoranda, and with the benefit of oral argument, the Court rejects the defendants' arguments and grants summary judgment and the class relief requested by the plaintiff. The reasons for the Court's conclusions are set out in the discussion which follows.

I. BACKGROUND

The undisputed material facts may be briefly stated. The drug abuse program involved in this proceeding was an enormous undertaking. It began in 1972 and, within 14 months, the military had subjected servicemembers to 4,400,000 urinalyses. If the test indicated illegal use of drugs, the abusing servicemember was issued a less than honorable administrative discharge.³ Approximately 29,000 drug abusers, most of whom were identified through this program, were gleaned from the ranks of all branches of the military for drug abuse between 1970 and 1975 and were given less than honorable discharges.

Plaintiff Walters was one of those so discharged. He entered the Marine Corps in September 1973. Shortly thereafter he was ordered by Corps authorities to render a urine sample as part of the urinalysis testing program. When the test indicated that he had used phenobarbitol, the authorities questioned him and found that he had been using drugs during the year prior to enlistment. The Corps then initiated administrative discharge proceedings against him for fraudulent enlistment through concealment of preservice drug use. He was severed from the Corps with a general discharge on November 8, 1973.

Walters sought relief before the Naval Discharge Review Board⁴ and requested an upgrade of his discharge in the Spring of 1980. However, shortly before a scheduled hearing, he withdrew his petition and subsequently brought this action on his own behalf and on behalf of similarly situated former members of the Marine Corps, the Navy and the Air Force.

II. LEGAL ANALYSIS

A. Statute of Limitations

The defendants argue that this action is barred by the six-year limitation imposed by 28 U.S.C. § 2401(a). That section provides that civil actions commenced against the United States shall be barred unless filed within six years after accrual of a right of action. Because this suit was not filed until April 22, 1981, and Walters was discharged in November 1973, the defendants claim that his suit is time-barred.

The Court concludes that the defendants are incorrect. Courts have frequently entertained challenges to court-martials long after the six-year period has expired. See, e.g., Homcy v. Resor, 455 F.2d 1345 (D.C.Cir.1971); Ashe v. McNamara, 355 F.2d 277 (1st Cir. 1965); Calhoun v. Lehman, C.A. No. 78-0988 (D.D.C. January 27, 1982). There is no compelling reason why a different rule should apply for administrative discharges.⁵

Even if the six-year limitations period applies in a case for an upgrade of a military discharge, this Court in Wood v. Secretary of Defense, 496 F.Supp. 192, 197-98 (D.D.C.1980), concluded that the cause of action does not accrue until the appropriate discharge review board denies the servicemember's request for an upgrade. Under the UCMJ, a discharged servicemember has 15 years after the discharge to petition the military board for review. 10 U.S.C. § 1553(a). Since the time for Walters to bring such a petition has not expired, his cause of action has not yet accrued and the statutory time under section 2401(a) has not yet begun to run. Therefore, this action is not time-barred.⁶

B. Exhaustion of Administrative Remedies

Under 10 U.S.C. § 1553(b), the Naval Discharge Review Board could have upgraded Walters' discharge had he not withdrawn his petition for review filed with that Board. Because the plaintiff failed to exhaust his administrative remedies the defendants argue that this Court should not exercise jurisdiction. In urging that position they rely on a long line of case authority which holds that, for reasons of judicial economy and primary jurisdiction, all available avenues of military administrative appeal must be exhausted before judicial review is available. Knehans v. Alexander, 566 F.2d 312, 315 (D.C.Cir.1977), cert. denied, 435 U.S. 995, 98 S.Ct. 1646, 56 L.Ed.2d 83 (1978); Hayes v. Secretary of Defense, 515 F.2d 668, 672 (D.C.Cir.1975); Hodges v. Callaway, 499 F.2d 417, 422 (5th Cir. 1974). However, because the doctrine is based on principles of comity, its application is within the discretion of the district court. See Sohm v. Fowler, 365 F.2d 915, 918 (D.C.Cir. 1966). When "special circumstances" exist (id.), exhaustion of military remedies is not required. See Nelson v. Miller, 373 F.2d 474 (3rd Cir.), cert. denied, 387 U.S. 924, 87 S.Ct. 2042, 18 L.Ed.2d 980 (1967); Ogden v. Zuckert, 298 F.2d 312 (D.C.Cir.1961); Calhoun v. Lehman, supra.

Courts have developed a number of exceptions to the exhaustion requirement. It is not required if administrative remedies are inadequate or not efficacious, Humana of South Carolina, Inc. v. Califano, 590 F.2d 1070, 1081 (D.C.Cir.1978); where pursuit of administrative remedies would be futile, Natural Resources Defense Council, Inc. v. Train, 510 F.2d 692, 703 (D.C.Cir.1975); or where irreparable injury would result unless judicial review is permitted, Sears, Roebuck and Co. v. N.L.R.B., 473 F.2d 91, 93 (D.C.Cir.1972), cert. denied, 415 U.S. 950, 94 S.Ct. 1474, 39 L.Ed.2d 566 (1974). However, none of these exceptions apply here. In fact, the defendants have submitted an affidavit⁷ which, they contend, shows that Walters would have definitely received an upgrade of his discharge had he pursued his administrative remedies. That result, they point out, is required by two current military regulations, 32 C.F.R. §§ 41.7(f) and 70.6(c)(1)(ii). Section 41.7(f) requires that servicemembers who are discharged from the military today based on evidence gathered during a compelled urinalysis must receive an honorable discharge.⁸ Section 70.6(c)(1)(ii) mandates that a discharge review board apply the current regulation— i.e., section 41.7(f)—in reviewing the propriety of a less than honorable discharge.⁹

However, while the standard exceptions to the exhaustion doctrine do not apply here, neither do the often stated reasons for requiring exhaustion. Those reasons are several: the discharge board or the agency must be given the opportunity to develop a factual record and apply its expertise to that record and courts should strive to avoid "piecemeal" appeals. Association of National Advertisers, Inc. v. FTC, 627 F.2d 1151, 1157 (D.C.Cir.1979), cert. denied, 447 U.S. 921, 100 S.Ct. 3011, 65 L.Ed.2d 1113 (1980). See also McKart v. United States, 395 U.S. 185, 194, 89 S.Ct. 1657, 1663, 23 L.Ed.2d 194 (1969); Committee for GI Rights v. Callaway, 518 F.2d 466, 474 (D.C.Cir.1974). Because the outcome of an administrative appeal is certain in this case—namely, all parties agree that Walters would have received an upgraded discharge had he not withdrawn his petition for review—this Court sees no conceivable need for an amplified administrative record nor any benefit to be gained from military expertise. And because the outcome of a military discharge board's review is, under current military regulations, certain for all dischargees similarly situated with Walters, this Court would not avoid "piecemeal" appeals by requiring exhaustion.

The Supreme Court has emphasized that application of the exhaustion doctrine "requires an understanding of the purposes of the particular administrative scheme involved." McKart v. United States, 395 U.S. at 193, 89 S.Ct. at 1662; see also, Association of National Advertisers, Inc. v. FTC, 627 F.2d at 1156; Committee for GI Rights v. Callaway, 518 F.2d at 474. In this "particular administrative...