Woodard v. Marsh, 80-2300

CourtUnited States Courts of Appeals. United States Court of Appeals (5th Circuit)
Citation658 F.2d 989
Docket NumberNo. 80-2300,80-2300
PartiesLarry J. WOODARD, Plaintiff-Appellant, v. John O. MARSH, Secretary of the Army, Defendant-Appellee. Summary Calendar. . Unit A
Decision Date15 September 1981

Hicks, Gillespie, James & Agee, P. C., Hal K. Gillespie, Dallas, Tex., for plaintiff-appellant.

John H. Hannah, Jr., U. S. Atty., Martha H. Clark, Asst. U. S. Atty., Tyler, Tex., Charles R. Fulbruge, III, Litigation Div., Washington, D. C., for defendant-appellee.

Appeal from the United States District Court for the Eastern District of Texas.

Before AINSWORTH, REAVLEY and RANDALL, Circuit Judges.

REAVLEY, Circuit Judge:

Larry J. Woodard brought this suit seeking reinstatement of his officer's commission in the United States Army Reserve, recall to active duty, promotion credit, payment of back wages and benefits, and correction of the Army's records. The Army filed a pre-answer "motion to dismiss or, in the alternative, for summary judgment." Without explaining its reasons, the district court granted the Army's motion "in all things," and it entered judgment for the Army. Woodard appeals. Finding a proper legal basis for the district court's judgment, we affirm.

Having received an appointment as second lieutenant in the United States Army Reserve, Woodard began a two-year term of obligated service on October 1, 1977, by attending the Military Officer Basic Course at Fort Huachuca, Arizona. After he failed a required examination three times, however, he was referred to a "faculty board," a panel of officers appointed to consider the cases of officers who fail to meet academic standards. The faculty board recommended that Woodard be discharged. This recommendation was approved by the "appointing authority" (i. e., the Fort Commander), and Woodard was honorably discharged from the Army on July 14, 1978.

Woodard's subsequent application to the Army Board for the Correction of Military Records was unsuccessful. He has exhausted his administrative remedies.

In this suit, Woodard bases his claim for relief on three legal grounds: (1) that in discharging him, the Army failed to follow its own regulations; 1 (2) that the hearing he received violated his right to due process of law under the Fifth Amendment; and (3) that the Army's action deprived him of the equal protection of the laws, also guaranteed by the Fifth Amendment. 2

The Army set forth three grounds to support its Rule 12(b) motion: (1) that the district court did not have subject matter jurisdiction; (2) that, even if the court had jurisdiction, Woodard's claims were not reviewable; (3) that the complaint did not state a claim upon which relief could be granted; and (4) that the Army was entitled to summary judgment as a matter of law and undisputed fact, see Fed.R.Civ.P. 12(b), 56. While the district court granted the Army's motion "in all things," there is an obvious inconsistency in deciding that the court has no jurisdiction and in entering judgment, as the district court did, "on the merits." See Hitt v. Pasadena, 561 F.2d 606, 608 (5th Cir. 1977) (per curiam). Thus, in assessing the Army's arguments, we start at the beginning.

I. Jurisdiction

In Mindes v. Seaman, 453 F.2d 197, 198 (5th Cir. 1971), this court stated broadly that the district courts have jurisdiction over suits alleging wrongful discharge from the armed services. The court did not identify the specific statutory grant under which the district court had jurisdiction in Mindes. Since it is the general rule, however, that the federal courts do not have jurisdiction absent a congressional grant, see L. Tribe, American Constitutional Law § 3-5, we read Mindes as simply rejecting the theory that the courts never have jurisdiction to hear military discharge claims. We must still identify an applicable jurisdictional grant.

The Mandamus Act, 28 U.S.C. § 1361, gives the district courts "original jurisdiction of any action in the nature of mandamus to compel an officer or employee of the United States to perform a duty owed to the plaintiff." In Jones v. Alexander, 609 F.2d 778, 781 (5th Cir.), cert. denied, --- U.S. ----, 101 S.Ct. 100, 66 L.Ed.2d 37 (1980), we held that this statute confers jurisdiction over a suit for injunctive and declaratory relief from a discharge allegedly made in violation of Army regulations. This holding is directly applicable to Woodard's claim that the Army failed to follow its own regulations, and it applies with equal force to his allegations of failure to perform duties imposed by the Constitution. Thus, the district court had jurisdiction over Woodard's claims for declaratory and injunctive relief.

The court also had jurisdiction over Woodard's monetary claims. The Tucker Act gives the district courts original jurisdiction of a "civil action or claim against the United States, not exceeding $10,000 in amount, founded either upon the Constitution, or any Act of Congress, or any regulation of an executive department ...." 28 U.S.C. § 1346(a)(2). In his amended complaint, Woodard waived all claims for damages in excess of $9,999.99. Therefore, the district court had jurisdiction of his monetary claims. VanderMolen v. Stetson, 571 F.2d 617, 619 n.2 (D.C.Cir.1977).

Since we find the Mandamus Act and the Tucker Act adequate bases for jurisdiction over this suit, we decline to pass on the other grounds of jurisdiction proffered by Woodard. 3

II. Reviewability

While we held in Mindes v. Seaman that the federal courts do not lack jurisdiction simply because an action challenges the personnel decisions of the military, Mindes makes it equally clear that a federal district court should not review every such decision, even if it has subject matter jurisdiction. See 453 F.2d at 199-202.

It is now well established that, despite Mindes' doctrine of "nonreviewability," claims that the Army failed to follow its own regulations or failed to afford procedural due process are reviewable. See, e. g., White v. Callaway, 501 F.2d 672, 674 (5th Cir. 1974) (failure to follow own regulations); Sims v. Fox, 505 F.2d 857 (5th Cir. 1974) (en banc) (by implication) (procedural due process), cert. denied, 421 U.S. 1011, 95 S.Ct. 2415, 44 L.Ed.2d 678 (1975). However, Woodard has cited no case, and we have found no Fifth Circuit case, which expressly considers either a claim of denial of equal protection in an Army personnel decision or the applicability of Mindes to such a claim. Therefore, we must decide whether the Mindes doctrine of nonreviewability precludes Woodard's equal protection claim.

In Mindes, we identified the policy considerations underlying the doctrine of nonreviewability: "an unwillingness to second-guess judgments requiring military expertise"; "a reluctance to substitute court orders for discretionary military decisions"; and "the proper concern that such review might stultify the military in the performance of its vital mission." 453 F.2d at 199. In determining whether a court should decline review in light of these policy considerations, we said that there were four factors the court should consider:

1. The nature and strength of the plaintiff's challenge to the military determination .... An obviously tenuous claim of any sort must be weighted in favor of declining review....

2. The potential injury to the plaintiff if review is refused.

3. The type and degree of anticipated interference with the military function....

4. The extent to which the exercise of military expertise or discretion is involved. Courts should defer to the superior knowledge and experience of professionals in matters such as promotions ....

453 F.2d at 201-02 (emphasis added) (citation omitted).

We look first to the "nature" of Woodard's equal protection claim. Woodard alleges that, although there were three others who failed the same tests he did, two of these individuals were nevertheless retained as officers. 4 Thus, Woodard's equal protection claim is that there was no rational basis for distinguishing between him and these other officers. See City of New Orleans v. Dukes, 427 U.S. 297, 303, 96 S.Ct. 2513, 2517, 49 L.Ed.2d 511 (1976) (per curiam) (distinctions among those permitted to continue livelihood as vendor need only "be rationally related to a legitimate state interest"); Kotch v. Board of River Port Pilot Commissioners, 330 U.S. 552, 556, 67 S.Ct. 910, 912, 91 L.Ed. 1093 (1947) (upholding, under similar standard, an apprenticeship system which left incumbents with unfettered discretion to select relatives and friends).

As for the "strength" of his claim, we note that Woodard does not dispute that his failure to pass the test was an adequate basis for his discharge. Nor does he contend that the Army was required to discharge all trainees who failed the test he failed. To the contrary, he cites and relies on the Army regulation giving the faculty board and the appointing authority several discretionary options when they decide to relieve a student for academic reasons: "reassignment, administrative hold, return to parent unit, recycle to another class within the same course of instruction, or relief from active duty or active duty training." USAICS Reg. No. 600-4, P 1-3(a). Obviously, if test failure were the only criterion to consider, there would be no need for a faculty board hearing and no basis for the board to recommend one option over another. Instead, the regulations provide that the faculty board "will consider and include in its findings all circumstances surrounding the failure, and the attitude, application and leadership potentialities of the officer." Army Reg. No. 635-100, P 3-22(a)(2). The purpose of the faculty board hearing is to allow the student to bring favorable evidence before the faculty board in order to allow the board to make a reasoned recommendation concerning his future as an officer. See, e. g., id.; USAICS Reg. No. 600-4, P 3-6 (right to present character witnesses); id. P 3-7(a) (right to "present any...

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