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

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition
- **Published:** January 1, 1979
- **Citation:** 444 U.S. 840

## Text

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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385006_2438%3A1. Public record. Not legal advice.