Doyle v. United States

FRIEDMAN, Chief Judge,

dissenting in part:

Although I agree with and join in Parts I and III of the court’s opinion, I dissent from the holding in Part II that the legal error resulting from the absence of Reservists on the 1974 and 1975 selection boards was not harmless.

The rationale of the court’s ruling on this point is that "the doctrine of harmless error cannot be applied to this type of procedural error.” I conclude, however, that the doctrine of harmless error may be applied to the legal error committed in this case and that the Correction Board properly concluded — a conclusion the Secretary approved— that in the case of those Reserve officers who were again twice passed over for promotion by the reconstituted selection boards, the absence of Reserve officers on the original selection boards was harmless error.

*319 1. The principle that an error committed by a lower court does not warrant reversal of the court’s judgment if the error is harmless is a venerable concept in our jurisprudence. See R. Traynor, The Riddle of Harmless Error, 3-17 (1970). The rule is reflected in 28 U.S.C. § 2111 , 1 the Federal Rules of Civil and Criminal Procedure, 2 and Rule 153 of the Rules of this court. 3

As the court notes, the Supreme Court has recognized that even in case of constitutional error occurring in a criminal trial, not every such error requires "the automatic reversal of the conviction”; a conviction will be upheld if the "federal constitutional error . . . was harmless beyond a reasonable doubt.” Chapman v. California, 386 U.S. 18, 22, 24 (1967). See, e.g., Harrington v. California, 395 U.S. 250 (1969) (violation of sixth amendment right of confrontation); Brown v. United States, 411 U.S. 223, 231 (1973) (same); United States v. Parker, 549 F.2d 1217, 1221 (9th Cir.), cert. denied, 430 U.S. 971 (1977) (prosecutor’s comment on defendant’s failure to testify, in violation of fifth amendment).

Some constitutional rights are "so basic to a fair trial that their infraction can never be treated as harmless error . . . .” Chapman v. California, supra, 386 U.S. at 23 (coerced confession, right to counsel, impartial judge). Sometimes the underlying statute itself manifests a congressional intent that no violation may be viewed as harmless error, or the application of the doctrine would be inconsistent with the basic statutory scheme. See, e.g., Henderson v. United States, 175 Ct. Cl. 690 (1966) cert. denied, 386 U.S. 1016 (1967); Kotteakos v. United States, 328 U.S. 750, 764-65 (1946). Cf. Note, Principles for Application of the Harmless Error Standard, 41 U. Chi. L. Rev. 616 , 623-24. There may be instances in which the *320 character of the error itself and of the underlying proceedings preclude consideration of whether the error is harmless. See, e.g., Ryder v. United States, 218 Ct. Cl. 289, 297 , 585 F. 2d 482, 486-87 (1978) (ex parte communication in adjudicatory proceeding); Kotteakos v. United States, supra, 328 U.S. at 762 .

Ordinarily, however, where the error occurs in a civil proceeding and does not rise to a constitutional level, there is room for the application of the harmless error principle.

The error in the present case is statutory, not constitutional. The selection board proceedings are not adjudicatory or accusatory, but evaluational. The error, although serious, was not so far-reaching and did not involve such a departure from basic precepts of fairness as to dictate against even considering whether it substantially prejudiced the plaintiffs. There is no reason why we should refuse to examine whether the original selection boards probably would have reached the same result with respect to the plaintiffs if they had had Reserve members.

The court concludes, however, that our prior decisions in Ricker v. United States, 184 Ct. Cl. 402 , 396 F.2d 454 (1968), and Henderson v. United States, 175 Ct. Cl. 690 (1966), cert. denied, 386 U.S. 1016 (1967), preclude application of the harmless error doctrine here. I do not so read them.

As the court points out, Henderson involved a board that did not have a quorum because one member of the board was not senior to the person under investigation, in violation of Air Force regulations providing that only members who were senior could sit on the board. The regulations also provided that the seniority requirement could not be waived. The flaw the court found in the proceedings before the Henderson board was that the tribunal could not validly function because one of the members necessary to constitute a quorum was disqualified from participating. The absence of a quorum generally renders the action of the body or tribunal void. See, e.g., 2 Am. Jur. 2d, Administrative Law, § 196 at 28-29 (1962); Braniff Airways, Inc. v. Civil Aeronautics Board, 379 F.2d 453, 460 (D.C. Cir. 1967). In the present cases, on the other hand, there is no showing that the original selection boards did not have a quorum or that any particular member was disqualified from sitting. Moreover, even assuming that *321 one unidentified member of the original boards was disqualified because he should have been a Reservist, the boards still would have had a quorum without him. 4

Finally, the unusual prohibition in the regulation in the Henderson case against waiver of the requirement that all voting members be senior to the officer under consideration suggests that the Air Force attached such importance to this requirement that any violation thereof necessarily would void the action of the board. There is nothing comparable in the statutory requirement for Reserve members on selection boards that justifies a similar inference. Indeed, the Army itself has recognized the less rigid character of this requirement by providing that Reservists are to be assigned to those boards only where practicable.

In Ricker the error in the composition of the board was the improper presence of an officer who was disqualified from sitting under a statute prohibiting a member from sitting on two successive boards to consider officers of the same rank. The court rejected the claim of harmless error on three grounds: (i) the ban against an officer sitting on successive boards may have been intended "to prevent a general form of prejudice,” namely the establishment and perpetuation of cliques; (ii) Henderson held that the illegally constituted board "rendered the proceedings fatally defective”; and (iii) since the agency violated not its own regulations but an Act of Congress, "[i]t follows, a fortiori, that the separations were illegal.” 184 Ct. Cl. at 407 , 396 F.2d at 456-57 .

The claim of harmless error in Ricker was not based upon subsequent corrective action by the military that demonstrated a lack of prejudicial error, as here, but upon the nature of the error itself and its allegedly unharmful effect upon the particular proceeding. Moreover, under the government’s theory in Ricker every violation of the statutory provision would have been harmless error, since officers appear before only one continuation board. As in Henderson , the error in Ricker was the improper presence of a disqualified officer and not the improper absence of a member with particular qualifications. Finally, although *322 the opinion in Ricker does not mention the fact, the continuation board before which the plaintiffs appeared was required to have at least three officers ( 10 U.S.C. § 5702 (a)(1) (1976)); the disqualification of one of the three members of the board, because of his prior service, meant that the board did not have a quorum.

There have been four district court cases that have applied the doctrine of harmless error to the nonselection of Reservists by boards that had no Reserve members. Dilley v. Alexander, 440 F. Supp. 375 (D.D.C. 1977), rev’d, 603 F. 2d 914 (1979); Gober v. Alexander, Civ. No. 77-17-COL (M.D. Ga. Aug. 23, 1977); Whitehead v. Alexander, 439 F. Supp. 910, 912 (D.D.C. 1977); Fuller v. Alexander, 440 F. Supp. 380, 382 (D.D.C. 1977). The court stresses the court of appeals’ reversal of the district court’s holding of harmless error in Dilley. In doing so, however, the court of appeals in Dilley stated (603 F. 2d at 924):

This case would be considerably different had the Relook Boards been normal promotion selection boards merely masquerading under a new label. Despite the Relook Boards’ misguided charter, if the Army had successfully placed the appellants in the same position as they were in before the 1975 Boards convened, then the procedural defect would have been repaired and appellants would have no cause to complain. The Army did not completely "reconstitute” that setting, however, and we regard its failure to do so in two important respects as Critical to our holding in this case.

The two respects in which the court held that the reconstituted boards were defective for purposes of determining harmless error were (1) that prior to the action of the reconstituted board, the officers involved had been passed over by a second selection board, which had before it the record of the officers’ improper passovers by the first improperly constituted board, and (2) that because the reconstituted boards considered only candidates from the primary zone, the officers’ opportunity for promotion by the reconstituted boards was seriously weakened. The first situation did not exist in the present case. As we show below, the second objection does not negate the finding of harmless error here.

The Dilley case did not hold that harmless error can never be found in this type of illegality; it held only that on *323 the facts of that particular case the error was not harmless. Moreover, it is far from clear that the Dilley court would have refused to sanction the ruling of the Correction Board that the error here was harmless. Indeed, the opinion in Dilley at least suggests that the District of Columbia Circuit might well have upheld the board’s action in this case.

In addition to the four district court decisions that have held the absence of Reservists on the original selection boards to be harmless error, there have been decisions that have applied the harmless error doctrine to other situations involving military boards, including the claim that the board was improperly constituted. In Coughlin v. Alexander, 446 F. Supp. 1024, 1027 (D.D.C. 1978), aff'd, 589 F. 2d 1115 (1978), the fact that a temporary selection board was illegally constituted because it included a member who was junior in rank to the plaintiff was held harmless error because plaintiff was passed over by several subsequent properly constituted boards. In Knehans v. Callaway, 403 F. Supp. 290 (D.D.C. 1975), aff'd, 566 F.2d 312, 314 (D.C. Cir. 1977), the presence of invalid officer efficiency report and the omission of several complimentary letters from plaintiffs record was held not automatically to invalidate plaintiffs selection out. In Bensing v. United States, 551 F.2d 262 (10th Cir.), cert. denied, 434 U.S. 832 (1977), an error in recordation of the promotion list service date that required earlier board consideration did not automatically invalidate plaintiffs nonselection. Cf. Mt. Healthy City School District Board of Education v. Doyle, 429 U.S. 274 (1977) (substantive constitutional defect in employment separation context did not require automatic reinstatement and back pay).

The court discusses these cases in detail, drawing subtle distinctions between them and the present cases. Of course, the cases are distinguishable. I cite them only to show that there has been repeated judicial acceptance and application of the doctrine of harmless error in reviewing the actions of a myriad of militáry tribunals in situations where the issues the tribunal decided and the nature of the errors it committed were not so different in kind or degree from the error here committed as to call for a different result in these cases.

*324 2. I agree with the Correction Board that the absence of Reservists on the original 1974 and 1975 selection boards was harmless error.

Except for limiting consideration to officers in the primary zone, discussed below, the reconstituted boards followed the identical standards and procedures the original boards had used. The reconstituted boards considered de novo all the officers in the primary zone the original boards had considered, including both those selected and those rejected for promotion. Each officer’s record was reconstituted as it had been in 1974 and 1975. The reconstituted boards utilized the same instructions and guidelines the Secretary had given to the original boards. Any officer the first reconstituted board passed over was considered by the second reconstituted board. Each reconstituted board, unlike the original board, had Reserve membership.

The record does not show how many Reserve officers not selected by the original boards were selected by the reconstituted boards. As the court notes, the number was substantial. None of the plaintiffs was selected by either the original boards which contained no Reservists, or by the reconstituted boards which had Reservists. Considering all of the circumstances, the Correction Board properly concluded that it was "reasonable to presume that had [the plaintiffs] been considered by properly constituted boards, they would not have been selected for promotion,” and that the absence of Reservists on the original selection boards was harmless error with respect to the plaintiffs.

The concept of harmless error deals with probabilities, not certainties. It never can be statéd with certainty that an error made no difference in the tribunal’s decision. Yet that is what the court seems to be requiring when it offers as a reason for rejecting the concept of harmless error "that it is not possible for a reviewing body to determine what effect the error had on the judgment of the original proceeding.” The rule of harmless error does not require such certainty; if it did, it would virtually never apply.

Plaintiffs contend that the proceedings before the reconstituted selection boards did not provide a fair basis for evaluating the effect the absence of Reservists on the original boards had upon Reservists denied promotion, *325 because the reconstituted boards did not consider officers from the secondary zone. Fifteen percent of the captains and majors and 7% percent of the chief warrant officers the original selection boards recommended for promotion were from the secondary zone. This was the maximum permissible number under the regulations, and the number the Secretary of the Army had indicated to those boards would be appropriate. See note 5, infra. As the court notes, this reduced the number of officers selected from the primary zone.

Since the reconstituted boards were instructed to and did consider only officers from the primary zone, the total number of officers those boards were to select was reduced by the number of secondary zone officers the original boards had selected. Plaintiffs allege that this change in the number of officers the reconstituted boards could select improperly impinged upon the discretion of selection boards to select less than the maximum permissible number from the secondary zone, and thereby reduced the number of places for which the plaintiffs were competing; and that this disparity between the original and reconstituted boards meant that the plaintiffs’ nonselection by the reconstituted boards was not a fair indication of the likelihood that they would not have been selected had the original boards contained Reservists.

The Secretary had indicated to the original boards that he wanted them to select the maximum number from the secondary zone, and they did so. 5 There is no reason to believe that if the reconstituted boards had been directed to select the same number of officers the original boards had selected and to draw them from both zones, the reconstituted boards also would not have taken the maximum number from the secondary zone. The reconstituted boards presumably were aware of the Secretary’s action with respect to the original 1974 captain-to-major board (see note 5, supra). Thus, plaintiffs would be most unlikely to have *326 benefitted from the procedure they believe the reconstituted boards should have followed. This is particularly so since officers selected from the secondary zone are better qualified than those from the primary zone. There seems little likelihood that the plaintiffs, all of whom were passed over by both reconstituted boards, would have been selected by those boards in preference to secondary zone officers if the latter were under consideration.

609 F. 2d 990

November 30, 1979

ORDER

On Plaintiffs motion for correction of opinion

These cases come again before the court, this time on plaintiffs’ motion, filed October 16, 1979, for correction of the May 16, 1979, opinion of the court, as amended by its order of September 28, 1979, and defendant’s reply of October 30, 1979, to the motion and its own cross-motion for correction of the opinion, as amended.

We find no merit in plaintiffs’ motion. However, defendant now alleges that the order of the court of September 28, 1979, which was intended to conform with Army regulations, does not in fact adequately achieve the purpose intended by the opinion. Defendant says that the parties have agreed upon the dates when those officers, who were retained on active duty pending the results of the relook boards, were released from active duty. Plaintiffs acknowledge this to be true. As all plaintiffs fall into one of-the categories covered by the stipulated dates, the application of these agreed-upon release dates to plaintiffs will result in their being placed in the same position they would have been had they been retained on active duty pending the results of the relook boards. In other words, the court, in its opinion of May 16, 1979, determined that plaintiffs’ release dates should be adjusted forward and that such forward *327 adjustment should include credit for an additional 90-day "constructive notice” period. All that is required is to determine when plaintiffs would have been released from active duty had they been retained on active duty pending the results of the relook boards.

Accordingly, since the parties have agreed on these issues,

It Is Hereby Ordered that plaintiffs’ motion for correction is denied. Defendant’s cross-motion is granted, and the opinion is amended to show that:

(1) each of the plaintiffs in the grade of major is credited with constructive active duty from his original release date until his new release date on March 31, 1977;

(2) each of the plaintiffs in the grade of captain is credited with constructive active duty from his original release date until his new release date on February 28, 1977;

(3) each of the ¡plaintiffs in the grade of chief warrant officer is credited with constructive active duty from his original release date until his new release date on January 31, 1977;

(4) such of the plaintiffs who would have completed 18 or more years of active federal service by the new release date are entitled to have their records corrected to show constructive service in accordance with AR 635-100, ¶ 3-65d.

Section 2111 provides that the judgment of a court of appeals or the Supreme Court shall be rendered "without regard to errors or defects which do not affect the substantial rights of the parties.” All 50 states have similar harmless-error statutes or rules. See Chapman v. California, 386 U.S. 18, 22 (1967).

Fed. R. Civ. P. 61; Fed. R. Crim. P. 52(a).

That rule, entitled "Harmless Error,” provides that "the court will disregard any error or defect which does not affect the substantial rights of the parties.”

Five members constituted a quorum; the original boards ranged in size from six to 15 members.

The Secretary had abolished the original 1974 captain-to-major temporary selection board before it made its recommendations, because he concluded that the low percentage of promotions from the secondary zone that the board was about to announce did not comply with his original instructions to it. The Secretary appointed a new board and instructed it to select “the maximum number of officers *326 from the secondary zone,” and the new board did so (15 percent). Plaintiffs unsuccessfully challenged before the Correction Board both the Secretary’s abolition of the original board and the instructions to the new board as an impermissible restriction of the board’s discretion, but they do not renew that contention here. In any event, I think that the Secretary acted within his broad discretion over military personnel (cf. Orloff v. Willoughby, 345 U.S. 83 (1953)) in taking those actions.