Petition — Amalgamated Meat Cutters & Butcher Workmen v. Iowa Beef Processors, Inc.

IN ‘LHE -

SUPREME COURT OF THE UNIT?

79-1867

LEWIS E. JONES,

NO.

Petitioner

VS.

heaped ALEXANDER,

ECRETARY OF THE ARMY,

Respondent

APPLICATION FOR WRIT OF CERITORARL

APPEAL FROM THE UNITED STATES COURT

OF APPEALS FOR THE FIFTH CIRCUIT |

Jerry D. Sanders

ARAGUEL, SANDERS, CARTER &

SWAIN, P. C.

Attorneys at Law

1826 Wynnton Road

Columbus, Georgia 31906

INDEX

Opinions Below 2... eee eee eres eececes

Statement of Jurisdiction ..........6-

Questions Presented .....-.-cccccccee

Statement of the CaS€ .....cccceccsee

Reasons for Granting the Writ ...... .

GCONCEVNSION cccccccsiccvcessvesececvess

Certificate Of Service .eciescostnure

Appendix A, Decision, United States

Court of Appeals, Fifth Circuit ....

Appendix B, Petition for Rehearing

Denied, United States Court of

Appeals, Fifth Circuit ......e.seee-

18

36

LIST OF AUTHORITIES

CASES PAGE

Bluth v. Land, 435 F.2d 1065

“COPE E si veeesasccne +9

Bray v. United States, 515 F.2d

i eC Lee. Cisgecesonne +9

Dilley v. Alexander, 603 F.2d

SLE (DC Cir, L979}... cee ee ke: mary ae

Edwins, Inc. v. United States,

501 F.2a 675 (7th Cir. 1974)... 13

Garvey v. Freeman, 397 F.2d 600

rs SED. oss ance 0060s ee

Jones v. Alexander, 609 F.2d

Sees Ee Meets 2980): oo. cee ees ee a

La. Power and Light Co. v.

United Gas Pipeline Co., 456

Pi2d 326, 335 (sth Cir. 1972).. 10

Mitchell v. Robert DeMario

Jewelry, Inc., 361 U.S. 388,

ne, See CESGO) % os. oe we ee

Morton v. Ruiz, 415 U.S. 199, 94

Rome Sees (G74) . cee cece Piet ee

Nader v. N.R.C., 513 F.2d 1045,

ee. ke cee oe

Nixon v. Secreta of Navy, 422

F.2d 934, 937 (5th Cir. 1975).. 13

Rogers v. Quan, 357 U.S. 193, 78

ih (ere CEP OM) 6 6 00 6 a ws 2 e600 9

ii

CASES (cont.) PAGE

Stark v. Wickard, 321 U.S. 288,

O64. B.Ces eae. Lee ee) 2c ene: 3

United States v. Brown, 206

Ui. 240, 27 Bsc. 620 €2907) =: ti

United States v. Price, 361

U.S. 304, 80 &.C6.° 326 (2960). 3

United Steelworkers v. N.I..R.B.,

390 ¥.20 eee (D.C. 5966) .. 6s e% 9

Waterman SS Corp. v. U.S., 381

U8. S040 Oe) &. Ct. 1508s

(1965) eeeeeeveeevr eevee eee eee eeeee 9

STATUTES

28 U.&¢. 1254 (1) eoeereeveevee eee 2

Chap. 20, ALt. 07, 2 Stat. at

L. 358, 371 ee eeeee#eee#ee#e#e#esee#*ee####e#*##*# 11

U.S. Comp. Stat. 1901, p. 959 .. 12

RULES AND REGULATIONS

AR. 635-100, para. 3-65 eeeeveee 4924,

AsaR. 624-100 wecuvcecs coccccccse 14

iii

IN THE SUPREME COURT

OF THE UNITED STATES OF AMERICA

LEWIS E. JONES, :

Petitioner :

CIVIL ACTION

vs. :

CLIFFORD ALEXANDER,

SECRETARY OF THE ARMY,

Respondent

APPLICATION FOR WRIT OF CERTIORARI

I. OPINIONS BELOW nae

The previous opinion in this case has

been reported and is found at 609 F.2d

778 (5th Cir., 1980).

II. . STATEMENT OF JURISDICTION

The judgment of the Court of Appeals

for the Fifth Circuit was made and

iatided on January 10, 1980, and Motion

for Rehearing was denied of February 14,

1980, copies thereof being appended to

this Petition.

The decision of the United States

Court of Appeals for the District of

1

Columbia Circuit was made on Sabla 26,

1979, as amended April 9, 1979, which is

reported at 603 F.2d 914 (DC Cir. 1979).

The jurisdiction of this court is invoked

under 28 U.S.C. 1245 (1). |

III. QUESTIONS PRESENTED

The principal question presented for

review is consideration of the division

of the District of Columbia Court of Ap-

peals and the Court of Appeals for the

Fifth Circuit with regard to the same

issues presented in this case.

The secondary issue after resolution

of the division of the circuits is whether

a Plaintiff so situate as the present one

is entitled to relief as a matter of law

under a set of facts showing that a mili-

tary department has released him from ac-

tive duty by procedures that were not pre-

scribed or authorized by statute or regu-

lation.

IV. STATEMENT OF THE CASE

The Petitioner, LEWIS E. JONES, filed

his Complaint against the Respondent, THE

SECRETARY OF THE ARMY, seeking declara-

tory, mandatory and injunctive relief.

After proceedings in the Court below sum-

mary judgment was granted to the Respon-

dent, which was affirmed on appeal to the

_ United States Court of Appeals for the

Fifth Circuit.

The Petitioner is a warrant officer

in the United States Army Reserves. On

February 7, 1977, he was released from

active duty pursuant to special orders.

In May, 1975, the Respondent convened

a Promotion Selection Board to consider

the appellant for temporary promotion to

the next higher grade. In February, 1976,

the Appellee convened another selection

board for the same purpose. Both the 1975

and 1976 Boards considered the Appellant

3

for promotion, but neither Board selected

the Appellant for promotion to the next

higher grade.

The 1975 Selection Board contained no

reserve officers among its membership. As

a result of applications made by certain

other reserve officers, the Army Board for

the Correction of Military Records (ABCMR)

convened on December 10, 1975, to consider

alleged defects in selection board pro-

ceedings. As a result of the investiga-

tion by the ABCMR, certain findings and

recommendations were adopted. The ABCMR

found, inter alia, that the 1975 Selection

Board had no reserve officers among its

membership, that such was the requirement

of the law, and recommended that a new

Selection Board be convened for that year,

that the records of all officers non-

selected for promotion by that Board be

reconstituted as of the date of the meet-

4

ing of the previous board, that a recon-

vened Board reconsider each previously

non-selected officer for promotion and re-

port to the ABCMR the names of those

officers selected for promotion and those

officers again non-selected for promotion

for "... such administrative action as

may be deemed appropriate."

On January 5, 1975, the Deputy -

Assistant Secretary of Defense recommended

that the Respondent accept the recommenda-

tions of the ABCMR. On January 7, 1976,

the Respondent approved the findings, con-

clusions, and recommendations of the ABCMR

and directed that those recommendations be

adopted. Pursuant to that directive, a

new selection board for the year 1975 was

reconvened to consider the Petition for

temporary promotion to the next higher

grade. This reconstituted selection board

("Relook" board) convened on June 8, 1976,

5

and adjourned on June 20, 1976.

Sometime prior to September 22, 1976,

the Petitioner made his application to the

ABCMR to correct his military record.

The Petitioner's contention was that his

non-selection by the original 1975 selec-

tion board was void for the reason that

the 1975 Board contained no Reserve

Officers among its membership, as required

by law. On September 22, 1976, the ABCMR

convened, and recommended that the

Petitioner's application be denied. On

November 1, 1976, the Respondent approved

the recommendation of the ABCMR with re-

spect to the Petitioner's application and

denied his application.

On October 4, 1976, the Respondent

ordered that the Petitioner be notified

that he would be released from active duty

for the reason that he had twice been non-

selected for promotion by promotion

6

selection boards. On November 10, 1976,

the Petitioner received notice that he had

been non-selected for promotion by two

consecutive selection boards, and would

be released from active duty. Pursuant to

Army Regulation 635-100, the Respondent

ordered the Petitioner released from ac-

tive duty on February 7, 1977. The Peti-

tioner was released pursuant to that. -

order.

V. REASONS FOR GRANTING THE WRIT

The decision below in the Fifth Cir-

cuit Court of Appeals should be reviewed

because it conflicts with the prior

decision in the Court of Appeals for the

District of Columbia Circuit, being the

case of Dilley v. Alexander, 603 F.2d 914,

(DC Cir 1979).

All points raised in the appeal of

Petitioner were raised in the Dilley case,

supra. The Court of Appeals for the

7

District of Columbia specifically found

"that the Corrections Board's treatment

of appellants’ claims were contrary to

law and that the secretary's actions

thereon were arbitrary and capricious."

This Circuit further ordered the Appel-

lants reinstated to active duty and to be

considered again by two Promotion Selec-

tion Boards constituted in accordance with

applicable statutes and regulations.

In the instant case the Fifth Circuit

Court of Appeals found “that the secretary

did not abuse his power under Section 1552"

and "we cannot say the secretary acted

arbitrary or capriciously in exercising

this power and formulating the Relook

Board as a remedy." Jones v. Alexander,

609 F.2d 778, at 783 (5th Cir. 1980).

Clearly the two circuits are divided

on thei: opinion with regard to the ac-

tions of the Secretary of the Army in

8

these matters. Under these circumstances

Certiorari should be granted to resolve

the conflicts. Rogers v. Quan, 357 U.S.

193, 78 S.Ct. 1076 (1958), U.S. v. Price,

361 U.S. 308, 80 S.Ct. 326 (1960),

Mitchell v. Robert De Mario Jewelry, Inc.,

361 U.S. 388, 80 S.Ct. 332 (1960),

Waterman SS Corp. v. U.S., 381 U.S. 252,

85 S.Ct. 1389 (1965).

It is the contention of the Petitioner

in this matter that the actions of the

Respondent's Promotion Selection Boards

were not valid as a matter of law.

As a general proposition, executive

agencies and departments are governed by

the statutes creating them, and by the

regulations adopted by them. Stark v.

Wickard, 321 U.S. 288, 64 S.Ct. 559 (1944),

United Steelworkers v. N.L.R.B., 390 F.2d

846 (DC, 1968), Garvey v. Freeman, 397

F.2d 600 (10th Cir., 1968). Not only will

9

agencies and departments "... be required

to follow congressional mandate..." (390

F.2d at 846) but"... the power of those

agencies is circumscribed by the authority

granted." (64 S.Ct. 571). Besides being

limited by statute, an administrative

agency is bound by its regulations. "To

be sure, an administrative agency is

bound not only by the precepts of its

governing statute but also by those in-

corporated into its own regulations...'

Nader v. N.R.C., 513 F.2d 1045, 1051

(D.C., 1975). The parameters created by

the governing statutes and regulations

are mandatory. The administrative body

may take no action not permitted by the

creating authority, and "... no amount of

need alone can create a federal agency

power if Congress has not expressly or

impliedly granted it." La. Power and

Light Co. v. United Gas Pipeline Co.,

10

456. P20 9205. 330 (5th Cix. 1972). The

casé of United States v. Brown, 206 U.S.

240; 27 S.Ct. 620 (1907) is particularly

instructive. There, the Appellee was a

volunteer officer who had been court

martialed. The applicable statute stated

that "officers of the Regular Army shall

not be competent to sit on courts-

martial..." The officer's contention was

that the sentence imposed was void for the

reason that the president of the Court was

an officer in the Regular Army. The

United States contended that the sentence

was valid for the reason that the Regular

Army officer was serving in the militia.

The Court, through Justice Holmes, held:

"This argument would have great

force when it was required as

formerly, only that courts-martial

for the trial of militia officers

"should be composed entirely of

militia officers." Acts of April

10, 1806, Chap. 20, Art. 97, 2

Stats St ly goer 37l« At there

was a settled practice of treating

11

th: yds as satisfied if the

mors of the Court were milit

offic: CS, whether they also held

commissions in the Regular Army

or not, we well might hesitate to

overthrow it. But when the express

prohibition contained in Article 77

L

was adopted by the Revised Statutes

(U.S. Comp. Stat. 1901, p. 959), 22

made the former construction no

longer possible. The words of the

statute are peremptory and must be

obeyed. We do not apprehend any

servious consequences, in view of

the date of the change. But,

whatever the consequences, we must

accept the plain meaning of plain

words. It follows that the pro-

ceedings of the court were void

and that it is not necessary to

mention or consider other objec-

tions that wereurged." 27 S.Ct.

at 621.

Given this general proposition, that

executive departments and agencies must

comply with the parameters expressed in

statutes and regulations governing them,

are aggrieved parties entitled to relief?

Again, as a general proposition, the

Courts will intervene if the agency of

department does not comply with the

applicable statutes. Morton v. Ruiz, 415

12

U.S. 199, 94 S.Ct. 1055 (1974), Edwins'

Inc. v. United States, 501 F.2d 675 (7th

Cir. 1974). This rule applies to military

departments as well as other executive

agencies. "While the courts are reluctant

to interfere in military affairs, the

Navy is bound by its own validly promul-

gated regulations, and the district courts

are free to entertain suits by servicemen

requesting compliance with such rules."

Nixon v. Secretary of Navy, 422 F.2d 934,

937 (5th Cir., 1970), Bluth v. Land, 435

F.2d 1065 (4th Cir. 1971, Bray v. United

Seaces, 515 F.2d 1383 (Ct.Cl. 1975).

The Respondent had conceded that the

Original 1975 Promotion Board considering

the appellant for promotion had no reserve

membership and that it was not impractical

to include reserve officers. By the

Respondent's own admission the results of

this Board were invalid. The Appellant

13

a

was released from Active Duty pursuant to

the provisions of Army Regulations 635-

100, para. 3-65.

"Except as indicated below, the

following officers will be relieved

from active duty on the 90th day

after receipt of involuntary re-

lease notification unless volun-

tary earlier release is requested--

... (3) AUS Warrant Officers who

fail a second time to be considered

fully qualified, under AR 624-100,

for promotion to temporary AUS

grade of Chief Warrant Officer,

W-3 or W-4, provided 9 months or

more elapse between adjournment

dates of selection boards."

AR 635-100, para. 3-65.

The Petitioner was originally notified

that he would be released because of non-

selection by the original 1975 Board.

However, recognizing that the results of

that Board were invalid because the Board

membership contained no reserve officers,

the Respondent convened the 1975 "Relook"

Board. The Petitioner was then released

from active duty because of non-selection

by the 1975 "Relook" Board, and the 1976

14

Board. The Petitioner submits that the

results of the 1975 "Relook" Board are

invalid, and that he was wrongfully re-

leased from active duty.

VI. CONCLUSION

The Courts of Appeal for the District

of Columbia Circuit and the Fifth Circuit

are divided in their opinion in the treat-

ment of officers who are released from

active duty due to the improper convening

of selection boards. Due to this conflict

it is respectfully requested that the

United States Supreme Court accept

Certiorari to resolve the issue. It is

fundamentally unfair that litigants in

similar situations be treated differently

depending upon the situs of the forum to

which the Complaint was filed.

It is the request of the Petitioner

that Certiorari be accepted in this matter

in order that review of the Fifth Circuit

15

Court of Appeals decision be had and that

it be directed to follow the findings and

decision of the Court of Appeals for the

District of Columbia Circuit in Dilley v.

Alexander, supra., it being the prior

decision on these matters.

Respectfully submitted this 10th day

of May, 1980.

ALC pA

R ~ SANDERS, CARTER &

SWAIN, P. C.

By: Jerry @* Sanders

Attorney for Petitioner

16

CERTIFICATE OF SERVICE

I, Jerry D. Sanders, Attorney for the

Petitioner, do hereby certify that I have

served the Respondent with three copies of

the foregoing Application for Writ of

Certiorari by mailing the same in a pro-

perly addressed envelope with proper pos-

tage affixed thereon to the Honorable

Gregory Leonard, Assistant United States

Attorney, P. O. Drawer "U", Macon,

Georgia, 31201, Attorney for the

Respondent and the Solicitor General,

Department of Justice, Washington, D. C.,

20530.

Dated this the 10th day of May, 1980.

,

So _ =

CARTER &

, SANDERS,

SWAIN, P. C.

By: Jerry D. Sanders

Attorney for Petitioner

17

APPENDIX A

DECISION OF THE UNITED STATES

COURT OF APPEALS, FIFTH CIRCUIT

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

Decided: January 10, 1980

77-2337 JONES V. ALEXANDER

Army reserve warrant officer who had

been passed over for promotion by two

Army Selection Boards sued to prevent his

release from active duty and for correc~

tion of his military records. The United

States District Court for the Middle Dis-

trict of Georgia, J. Robert Elliott, Chief

Judge, rendered summary judgment for the

Secretary of the Army and appeal was

taken. The Court of Appeals, Fay, Circuit

Judge, held that: (1) One of the two

selection boards which passed plaintiff

over was improperly constituted because

no reserve officers were included in its

membership; (2) such defect did not ren-

18

der the board's action a nullity; and (3)

Secretary could properly remedy the com-

positional flaw by convening a relook

board with reserve officer members, which

board was to examine applications as they

were reconstituted to appear as they had

at time of proceedings before the defec-

tively constituted board, with the relook

board to use the same criteria as used by

the original board,

AFFIRMED.

FAY, Circuit Judge:

Lewis Jones was passed over for pro-

motion by two Army Selection Boards. He

filed this action to prevent his release

from active duty and for correction of

his military records. The District Court

denied an injunction and Jones was re-

leased. The Court then granted the Secre-

tary of the Army's Motion for Summary

Judgment, and Jones appeals. The core

19

issues are whether the Secretary can

remedy an improperly constituted promo-

tion board and, if so, whether the Army

has taken proper steps to correct the

error here. We affirm the grant of sum-

Mary judgment.

I. FACTS AND PROCEEDINGS

Periodically, the Army convenes pro-

motion selection boards to consider appli-

cants for the next grade. An officer

passed over by two successive boards is

released from active duty. Army Reg. 635-

100, para. 3-65, See 10 U.S.C. §681 (a)

(1976). In 1975, a promotion selection

board convened (1975 Board). Jones, a

warrant officer in the United States Army

Reserve, was not selected for promotion.

In February, 1976, another selection board

convened (1976 Board). Again, Jones was .

not selected. Meanwhile, some 1300 offi-

cers applied to the Army Board for the

20

Correction of Military Records (Correc-

tion Board) for changes in their record

because of defects in the 1975 selection

board proceedings. The correction board

found adversely for the applicants on

some claims, but did find that, contrary

to statute, no reserve officers were on

the 1975 boards. The Correction Board

recommended that new Boards with the

appropriate number of reserve officers

convene to reconsider all primary zone

applicants, using records reconstituted

to appear as they had in 1975 and the

letter orders of instruction and guidance

previously furnished to the original 1975

boards. Following the Corrections

Board's recommendation, the Secretary

ordered that a reconstituted board

(relook board) convene during June, 1976.

Although some officers previously not

chosen for promotion were selected by the

21

ee ee ee

»

=

relook board, Jones was not one of those

recommended. Thereafter the Correction

Board denied Jones' request to change his

records, and on November 10, 1976, Jones

received notice that he would be reieased

from active duty. One month before his

scheduled release, the court denied his

requests for a temporary restraining order

and an injunction prohibiting the Army

from releasing him from active duty. Jones

commenced this action to recover for vio-

lation of his statutory and constitutional

rights. The Army then released Jones, al-

though he retained his reserve officer

commission and received $15,000 readjust-

ment pay. Four months later, the district

court granted the Army's Motion for

Summary Judgment, and this appeal ensued.

II. JURISDICTION.

A preliminary concern is whether the

district court had subject matter juris-

22

diction. Jones alleged jurisdiction der

the Tucker Act, 28 U.S.C. §1346(a) (1976),

the Declaratory Judgment Act, 28 U.S.C.

§2201 (1976), and the Mandamus Act, 28 U.

S.C. §1361 (1976). The Tucker Act grants

jurisdiction to the district court for

actions against the United States when

damages are less than $10,000. Actions

for more than that amount must be brought

in the Court of Claims. During oral argu-

ment, counsel for Jones moved to amend the

Complaint to strike the prayer for actual

damages, which had not been limited to

$10,000. See 28 U.S.C. §653 (1976)

(allowing amendment). Counsel for the

Secretary raised no objection, and we

grant the motion. The Tucker Act is

therefore no longer in question because

that Act only applies to suits for money

Gamages. Hunsucker v. Phinney, 497 F.2d

29, 36 (Sth Cir. 1974), cert. denied,

23

420 0.8: 922, 32. S.Ct... 1224, £3 1.26.20

397 (1975). The Declaratory Judgment Act

is not an independent ground for jurisdic-

tion; it permits the award of declaratory

relief only when other bases for juris-

diction are present. Skelly Oil Co. v.

Phillips Petroleum Co., 339 U.S. 667, 671,

70 S.Ct. 876, 94 L.Ed. 1194 (1950);

Seibert v. Baptist, 594 F.2d 423, 428

(Sth Cir. 1979); United States ex rel.

Weinberger v. Equifax, Inc., 557 F.2d 456,

460 (5th Cir. 1977), cert. denied, 434

U.S. 1035, 38.8.Ct.. 768, 54 L.Ea.26d 7e2

(1978); Red Lobster Inns of America, Inc.

v. New England Oyster House, Inc., 524 F.

2d 968, 969 (5th Cir. 1975). Therefore,

the Mandamus Act (Section 1361) is the

sole jurisdictional leg upon which this

action stands.

In resolving whether section 1361

jurisdiction is present, allegations of

24

the complaint, unless patently frivolous,

are taken as true to avoid tackling the

merits under the ruse of assessing juris-

Giction. Carter v. Seamans, 411 F.2d 767,

770 (5th Cir. 1969), cert. denied, 397

0.6. 941, 90 6.Ct. 953, 25 b.Ed.2d 121.

The test for jurisdiction is whether man-

damus would be an appropriate means of

relief. Id. at 773. Three elements must

exist before mandamus can issue: (1) The

Plaintiff must have a clear right to the

relief, (2) the Defendant must have a

clear duty to act, and (3) no other ade-

quate remedy must be available. Winning-

ham v. United States Department of Housing

and Urban Development, 512 F.2d 617, 620-

21 (5th Cir. 1975); Carter v. Seamans, 411

F.2d at 773. Taking the Plaintiff's alle-

gations at face value, we find the court

had jurisdiction. This case is similar to

Carter v. Seamans, 411 F.2d 767 (5th Cir.

42

i ngs

1969), in which this court adopted the

district court's opinion and held that

section 1361 jurisdiction was available.

In Carter, however, the trial court de-

clined to assert its power for fear that

its exercise would undermine the jurisdic-

tion of the Court of Claims in the paral-

lel damage action. Id. at 772-76. We

need not exercise this discretion, be-

cause Jones waives all right to damages

and no Court of Claims action exists. i

Larsen v. Hoffman, 444 F.Supp. 245 (D.D.C.

1977) (in facts similar to Jones, mandamus

jurisdiction declined because of exclusive

court of claims jurisdiction). We there-

fore hold that jurisdiction is present

under section 1361, and that it is also

now proper to consider Jones's claim for

declaratory relief.

III. RELIEF SOUGHT

Before turning to the parties’ argu-

26

7,

ments, we will focus briefly on issues

Jones is not raising because they distin-

guish Jones from other cases on relook

boards. Jones doesnot contest the 1976

Board's consideration. Cf. Dilley v.

Alexander, 195 U.S.App. D.C. , , 603

F.2d 914, 924 (1979) (reversal when 1976

board considered record erroneously in-

cluding defective 1975 pass over). Jones

does not question the relook board's con-

sideration of only those officers in the

primary zone. See Dilley v. Alexander,

195 U.S.App. D.C., at ’ , 603 F.2d

at 924-25; Doyle v. United States, 599

F.2d 984 (Ct.Cl. 1979). As noted above,

Jones is not requesting money damages.

Jones wishes the court to declare that

the 1975 board's actions were void ab

initio, to order that the Army alters

Jones's records to remove all indication

of the 1975 pass over and to order that

27

the Army reinstate him as if he had not

been passed over in 1975.

IV. ARGUMENTS

The litigants' arguments center on

whether the 1975 board and the relook

board are “selection boards" for pass over

purposes. Jones claims the 1975 board

was ab initio because no reserve officers

sat on the board. He claims this proced-

ural error is irremediable, and that the

Secretary's only choice is to allow all

applicants not selected by the 1975 Board

to continue on active duty until passed

over by two other selection boards for

there to be a "pass over" within the mean-

ing of the two-pass over rule of the se-

lection out regulation. He argues that

the relook board lacks the indicia of a

selection board under the regulations, and

even if it were a selection board, these

boards cannot meet within nine months of

28

each other. Army Reg. 624-100, para. 36;

635-100, para. 3-65. Therefore, accord-

ing to Jones, if the relook board is con-

sidered a selection board, it is also void

because it met in June, only four months

after the regular February, 1976, selec-

tion board.

The Secretary first asserts that the

1975 board is not totally valid, that use

of relook boards is a proper remedy, and

that the nine-month regulation is inappli-

cable because the relook board, in effect,

turned the clock back to 1975. Although

the Army admits that the composition of

the original 1975 Board was improper, it

argues that the Secretary has broad remed-

ial powers and properly cured the error

here by convening the relook board. The

Army also argues by analogy to Mount

Healthy City School District Board of

Education v. Doyle, 429 U.S. 274, 97 S.Ct.

29

568, 50 L.Ed.2d 471 (1977) that even if

the 1975 and relook boards were improper-

ly convened, Jones has the burden of

showing that but for the compositional

error, he would have been promoted. Even

if Jones did meet this burden, the Secre-

tary argues he proved the error was harm-

less, because when the properly construc-

ted relook board reviewed Jones's record,

it also found Jones was not among the

"best qualified" for promotion.

V. THE REMEDY WAS PROPER

The 1975 Board was properly consti-

tuted because no reserve officers were

included in its membership. We cannot

agree with Jones, however, that this de-

fect renders the board's actions a nulli-

ty, and requires reinstatement until

another board reviews his record. To

find the 1975 board's actions void ab

initio would unduly impinge on the

3.0

discretion granted the Secretary to make

personnel decisions. See Dilley v.

Alexander, 195 U.S.App.D.C. at P ’

603 F.2d at 921-22; Knehans v. Alexander,

184 U.S.App.D.C. 420, 566 F.2d 312 (1977),

cert. denied, 435 U.S. 995, 98 S.Ct. 1646,

56 L.Ed.2d 83 (1978). In addition, the

1975 board's actions could not be void for

those who were promoted. See Dilley v.

Alexander, 195 U.S.App.D.C. at _—, +603

F.2d at 921. The defect in composition,

therefore, does not totally invalidate

the 1975 Board's actions.

Nevertheless, the lack of reserve

members is a conceded violation of the

regulation and statute that govern the

creation of the 1975 board. The question,

then, is what action the Secretary can

pursue to remedy this compositional flaw.

The Secretary, acting through the Correc-

tion Board, has broad discretion "to

31

correct an error or remove an injustice."

10 U.S.C. §1552(a) (1976). We cannot say

the Secretary acted arbitrarily or capri-

ciously in exercising this power and for-

mulating the relook board as a remedy. A

relook board, with reserve officers as

members, considered the applications of

all officers in the primary zone, includ-

ing those already promoted by the 1975

and 1976 boards. These applications were

totally reconstituted to appear as they

had in 1975. The relook board used the

same criteria in reaching its selection

decisions as were used by the 1975 board.

This remedy does not appear to be arbi-

trary and capricious but was an entirely

reasonable attempt to mirror the statute's

requirements in a fair manner. Counsel

debate whether the relook board was an

entirely new "selection board" within the

meaning of the pass over regulations. Re-

32

gardless of whether the relook board is

considered a promotion board in its own

right, it nevertheless was a proper reme-

dy provided by the Secretary to amelio-

‘rate the defect in the 1975 board. See

Coughlin v. Alexander, 446 F.Supp. 1024

(D.D.C. 1978), aff'd, 191 U.S.App.D.C. 212

589 F.2d 1115 (1979); Fuller v. Alexander,

440 F.Supp. 380, 382 (D.D.C. 1977); White-

head v. Alexander, 439 F.Supp. 910, 912-13

(D.D.C. 1977). Taken together, the relook

board and the 1975 board can properly con-

stitute a "pass over" within the meaning

of the regulations.

Because we do not reach the question

whether the relook board was a separate

promotion board, we need not address

Jones's argument that the relook board

violated the regulation requiring nine

months between successive boards. We will

note, however, that one purpose of that

33

regulation is apparently to allow an

officer time to improve his record before

his application reaches the second board.

Because the relook board considered recon-

stituted records, with no reference to

activities occurring after the 1976 board,

the nine-month waitits period regulation

appears inapplicable.

Because we uphold the district court's

finding that the Secretary did not abuse

his power under section 1552, we also need

not decide whether the Mount Healthly

harmless error principles are applicable.

See Johnson v. Reed, No. 77-2570, 609 F.2d

784 (5th Cir. 1980).

VI. CONCLUSION

We uphold the district court and find

that despite the defect in the 1975 board,

the secretary took proper action to remedy

the defect by convening the relook board,

and that the nonselection of Jones by the

34

1975 board, the relook board, and the

1976 board constituted the two pass overs

necessary for the Army to release Jones

from active duty.

The district court's order entering

summary judgment for the Defendant is

AFFIRMED.

35

APPENDIX B

UNITED STATES COURT OF APPEALS

FIFTH CIRCUIT

OFFICE OF THE CLERK

Gilbert F. Ganucheau February 14, 1980

Clerk

TO ALL PARTIES LISTED BELOW:

NO. 77-2337 - Lewis E. Jones -vs-

Clifford Alexander,etc.

Dear Counsel:

This is to advise that an order has this

day been entered denying the petition for

rehearing, and no member of the panel nor

Judge in regular active service on the:

Court having requested that the Court be

polled on rehearing en banc (Rule 35,

Federal Rules of Appellate Procedure;

Local Fifth Circuit Rule 16) the petition

for rehearing en banc has also been

denied.

See Rule 41, Federal Rules of

36

Appellate Procedure for issuance and stay

of the mandate.

cc:

Very truly yours,

GILBERT F. GANUCHEAU, Clerk

BY s/ Claudia Nides

Deputy Clerk

—--——»

Mr. Charles C. Carter

Mr. Gregory J. Leonard

Mr. L. Neal Ellis, Jr.

Mr. Louis R. Davis, Major

37