Arthur R. Grimm v. Harold Brown, Secretary of the Air Force

JAMES M. CARTER, Circuit Judge

(dissenting).

I would reverse.

The majority accepts the district court’s conclusion that the findings of the board were collective and the charges were inextricably woven together. It concludes that Grimm was therefore denied a fair and impartial hearing on all of the charges due to an' error with respect to the security charge. The record does not support their position.

The Board of Inquiry made four findings of misconduct. The first two of these findings relate solely to Captain Grimm’s history of financial irresponsibility and in no way to security matters. The third finding, involving the security violation, is distinctly set out. The board found that Grimm had wrongfully engaged in an unauthorized discussion of classified subjects on or about January, 1961. A fourth finding stated that Grimm had displayed a record of marginal service without any mention of the security matter. Thus three of the findings are distinct from the finding as to the security incident. We do not have “inextricably interwoven” charges. No attack was made in the district court on these three findings, and there was no evidence submitted to the court on which the findings could have been held invalid.

Grimm was represented by both military and civilian counsel at the hearing before the Board of Inquiry. We should not presume that he was denied a fair and impartial hearing without further support, and on the basis of sheer speculation. Even in a criminal case, it is a rarity for a court to find that error as to one count infects convictions on other counts. The record here does not suggest that the security charge permeated the board’s consideration of the other charges. The security violation was apparently minor in scope. The record indicated that Grimm was promoted to Captain only one month after the incident. At the time of the discharge proceedings, his commander’s recommendation that Grimm be discharged did not even take it into account. The charge was added later, more than likely, as a make-weight.

Rather than overturning the Board of Inquiry’s lengthy proceedings and requiring the initiation of new proceedings eight years later, this court should follow the course of Meehan v. Macy, 129 U.S.App.D.C. 217 , 392 F.2d 822 (1968). That court was faced with the same problem we face here. An agency *657 had based an employee’s discharge on three grounds, two of which were held to be invalid. The court held that since it did not know whether a finding on the remaining charge would have resulted in a discharge, the matter should be remanded to the agency for their decision as to whether discharge would still be appropriate. Id. at 839 . Cf. Siang Ken Wang v. Immigration & Naturalization Service, 413 F.2d 286 (9th Cir. 1969).

Such a course is consonant with the limited role we occupy in our review of administrative determinations. It is an established principle of Administrative Law that in reviewing an administrative order, the court should not, either for the purpose of affirming or reversing the agency action, make a determination of policy or judgment which the agency alone is authorized to make and which it has not done. Securities and Exchange Commission v. Chenery Corp., 318 U.S. 80, 88 , 63 S.Ct. 454 , 87 L.Ed. 626 (1943); American Trucking Associations Incorporated v. United States, 364 U.S. 1, 15-17 , 80 S.Ct. 1570 , 4 L.Ed.2d 527 (1960). As Justice Douglas stated, “[T]he guiding principle [in the review of an administrative decision] is that the function of the reviewing court ends when an error of law is laid bare. At that point the matter once more goes to the agency for reconsideration.” Federal Power Commission v. Idaho Power Co., 344 U.S. 17, 20 , 73 S.Ct. 85, 87 , 97 L.Ed. 15 (1952). See Federal Communications Commission v. Pottsville Broadcasting Co., 309 U.S. 134, 145 , 60 S.Ct. 437 , 84 L.Ed. 656 (1940). See generally Jaffe, Judicial Control of Administrative Action 713-20 (1965).

By that principle the district court should have done no more than remand the case to the Air Force for further proceedings consistent with the invalidation of the security violation charge. The Air Force Personnel Board and the Secretary, could then determine what penalty, if any, would be imposed, based on the three valid findings of the Board of Inquiry. To set aside an Air Force discharge, and the valid findings upon which that discharge was grounded after a fair and impartial hearing, amounts to no less than an usurpation of the discretion resting in the Air Force.