Opposition Brief — Strickland v. Pirie

2) APR 25 2001

No. 00-1103 OFRCK OF THE CLERK

In the Supreme Court of the Gnited States

MICHAEL D. STRICKLAND, PETITIONER

RICHARD DANZIG, SECRETARY OF THE NAVY, ETAL.

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

BRIEF FOR THE RESPONDENTS IN OPPOSITION

BARBARA D. UNDERWOOD

Acting Solicitor General

Counsel of Record

STUART E. SCHIFFER

Acting Assistant Attorney

General

ANTHONY J. STEINMEYER

MARK W. PENNAK

Attorneys

Department of Justice

Washington, D.C. 20530-0001

(202) 514-2217

QUESTION PRESENTED _ a

Whether petitioner could satisfy the equitable stan :

dards for bringing an action seeking an inju pee

ordering the Navy to invalidate his discharge and _

reinstate him in his military position, without first

attempting to make use of the avenues for review of a

discharge offered by the military.

(I)

TABLE OF CONTENTS

Opinions below

Jurisdiction

Statement

Argument

Conclusion

TABLE OF AUTHORITIES

Cases:

Amoco Prod. Co. v. Village of Gambell, 480 U.S.

531 (1987) 7

Cavanaugh v. Looney, 248 U.S. 453 (1919) 7

Chappeli v. Wallace, 462 U.S. 296 (1983) ........sessesves 8,9, 11

Chilcott v. Orr, 747 F.2d 29 (1st Cir. 1984) 14

Clinton v. Goldsmith, 526 U.S. 529 (1999) ..........+0++ 7, 11,12

Crane v. Secretary of the Army, 92 F. Supp. 2d

SE Ca TARe sks BOOS ctnseitinininsaccnicsicasrimnansinn site 15

Darby v. Cisneros, 509 U.S. 137 (1993) .. 5, 6, 11

Dowds v. Clinton, 18 F.3d 953 (D.C. Cir. 1994) ..........0+ 15

Gilligan v. Morgan, 413 U.S. 1 (1973) ...... ‘ 9

Goldman v. Weinberger, 475 U.S. 503 (1986) ...........se0e00+ ~

Guerra v. Scruggs, 942 F.2d 270 (4th Cir. 1991) .............. 14

| Guitard v. United States Secretary of Navy, 967 F.2d

UIE nn Gs OUD caeaiccceccccanannatantcimnatsataasagetncesnaninnaancantnaneeaasns 14

Hartikka v. United States, 754 F.2d 1516 (9th Cir.

III dsc la ainda icacenndtnciptcbaieenionsiacbammnsenteuneiatendsenene 14

Hecht Co. v. Bowles, 321 U.S. 321 (1944) ......ccccccseseseseeneeees 7

Mindes v. Seaman, 453 F.2d 197 (5th Cir. 1971) ............. 3

Orloff v. Willoughby, 345 U.S. 83 (1953) ........cceceesesereeseees 8,9

Ostrow v. Secretary of the Air Force, 48 F.3d

Oe Ges BD isisenicbsnkenpchsniinthecineisoncnnnestenctnennccnenscsncees 15

Robertson v. United States, 145 F.3d 1346 (10th

Cir. 1998), cert. denied, 525 U.S. 879 (1999) ..........sssseesees 15

(IIT)

1V

Cases—Continued:

Saad v. Dalton, 846 F. Supp. 889 (S.D. Cal. 1994)

Sampson v. Murray, 415 U.S. 61 (1974) ........ccccee

Schlesinger v. Councilman, 420 U.S. 738

CEUETTED acsisssnenictsiecpanstinetininpsitelitiotiseiicidniiunmaiiesiitamibeibestennasioa

United States v. Stanley, 483 U.S. 669 (1987) ........

Weinberger v. Romero-Barcelo, 456 U.S. 305

CRITEIID <ssnsncenssicnsiasiosietsitgiinnicianindendsiedystnenschianasahaitbtsiceetin

Constitution, statutes, regulations and rules:

U.S. Const.:

Pe | Rs h S * SAREE Se ree te

BUD, Th, Be Ge 0 asinine

Amend. V (Due Process. Clause) ..........ccsscssscsssceseeees

Administrative Procedure Act, 5 U.S.C. 701 et seq. .

SEE as ee ee ipitcintnshceinstcncititartiiiatitiiaasibdilaaedaes

All Writs Act, 28 U.S.C. 1651 (a) ...........c.ccccccccsesessseseees

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DD Cas TRI: secsnsenssserepresineinlninibasianiatniiiaiiigadi

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10 U.S.C. 15680) ........c.c.0.000..

32 C.F.R..:

REIS er ew eeteett> ir

Section 723.3(e)(4) .........00 siiniientaiiitsinitaliadibiiisa

SOE -: TED acicicticsinsessricinstatnisceenitniabtaniieisensididiouss Shen

PIII SII: erithisttiesenitaciiesinatiiinitiaghiiibakibaasin eta

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In the Supreme Court of the Bnited Sates

No. 00-1103

MICHAEL D. STRICKLAND, PETITIONER

Uv.

RICHARD DANZIG, SECRETARY OF THE NAVY, ETAL.

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

BRIEF FOR THE RESPONDENTS IN OPPOSITION

OPINIONS BELOW

The opinion of the court of appeals (Pet. App. 1-3) is

unpublished, but the decision is noted at 235 F.3d 1339

(Table). The opinion of the district court (Pet. App. 4-

50) is unreported.

JURISDICTION

The judgment of the court of appeals was entered on

October 9, 2000. The petition for a writ of certiorari

was filed on January 4, 2001. The jurisdiction of this

Court is invoked under 28 U.S.C. 1254(1).

STATEMENT

Petitioner, a former Navy petty officer, brought this

action challenging his administrative “General Dis-

charge under Honorable Conditions.” The district court

(1)

2

granted summary judgment to respondents and dis-

missed the suit. Pet. App. 51-53. The court of appeals

dismissed his appeal. /d. at 2-3.

1. Before his discharge, petitioner had served in the

Navy for 17 years. On March 30, 1998, he was arrested

by the Jacksonville, Florida police on charges of lewd

and lascivious acts in the presence of a child, a second

degree felony under state law. Petitioner was charged

with having walked up to a woman and her children

while they were seated in a car, with his penis exposed

and masturbating. Petitioner contends that he had

merely been shaking sand out of his shorts in a private

area near a beach. Petitioner pleaded nolo contendere

to a charge of indecent exposure, a misdemeanor. He

was placed on 12 months’ probation, fined $1,000, re-

quired to complete 50 hours of community service, and

ordered to have no unsupervised contact with children.

Pet. App. 5-6.

Upon receiving a report of the incident, the Navy

Family Advocacy Program at Naval Station Mayport,

Florida, presented petitioner’s case to a review commit-

tee under Navy regulations. Pet. App. 7. That com-

mittee determined that the case was one of child sexual

abuse and forwarded its determination to the Bureau of

Naval Personnel. The Bureau in turn notified peti-

tioner that he was being considered for administrative

separation “by reason of ‘misconduct due to a civilian

conviction’ and ‘misconduct due to commission of a

serious offense.’” Jd. at 8. At petitioner’s request, an

administrative board was convened and military coun-

sel was appointed for him. After a hearing, the board

found misconduct but recommended that he none-

theless be retained in the Navy. /d. at 8, 10.

The board’s findings and recommendations were

reported to the Chief of Naval Personnel by petitioner’s

3

former commanding officer, who concurred with the =

recommendations. Pet. App. 10. The Chiefof Naval =

Personnel, however, disagreed with the recommenda-

tions and forwarded the case to the Assistant Secretary

of the Navy for a determination. Jd. at 11. The

Assistant Secretary concurred with the Chief of Naval

Personnel and ordered that petitioner be

with a “General Discharge (Under Honorable Condi-

tions).” Jbid. Petitioner’s unit was ordered to dis-

charge him by June 28, 1999. Jd. at 12.

2. Petitioner filed suit in district court, seeking to

enjoin the Navy from discharging him. The district

court initially issued a temporary restraining order

(TRO) prohibiting the Navy from discharging peti-

tioner. Pet. App. 12. The court ultimately extended

the TRO until August 9, 1999. Jbid. After that time,

petitioner’s discharge was held in abeyance by agree-

ment of the parties until the district court ruled on the

case. On January 12, 2000, after having held a hearing,

the district court issued an order denying petitioner’s

motion for a preliminary injunction and granting

summary judgment to respondents. /d. at 51-53. We

are informed that petitioner was discharged on

February 3, 2000.

The district court applied the substantive standards

governing review of an internal military decision set

forth in the Fifth Circuit’s decision in Mindes v. Sea-

man, 453 F.2d 197 (1971). Under those standards, the

availability of such review depends on (1) “[t]he nature

and strength of the plaintiff’s challenge to the military

determination,” (2) “(t]he potential injury to the plain-

tiff if review is refused,” (3) “(t]he type and degree of

anticipated interference with the military function,”

and (4) “(t]he extent to which the exercise of military

4

expertise or discretion is involved.” Jd. at 201; see Pet.

App. 28-29.

With respect to the first factor, the district court

extensively analyzed and rejected petitioner’s several

claims that the procedures used in his separation

violated Navy regulations. Pet. App. 30-35. The court

also rejected petitioner’s claim that his separation

violated principles of fundamental fairness because he

had pleaded nolo contendere to the state criminal

charge in reliance on a statement by his ship’s legal

officer that he would not be processed for separation if

he did so. The court held that petitioner’s contention,

which was similar to a claim of estoppel against the

government, failed because Navy regulations “clearly

indicate[] that [petitioner] would be processed for

separation for a civilian conviction” and because there

was no evidence that anyone had “deliberately misled”

petitioner. Jd. at 39. Finally, the court rejected peti-

tioner’s procedural due process claim on the ground

that petitioner had no liberty or property interest in his

military position. /d. at 41.

With respect to the second Mindes factor, the court

held that “the harm to [petitioner], although significant,

is not irreparable.” Pet. App. 43. The court relied on

the existence of further internal Navy remedies that

were available to petitioner, such as review before the

Board for Correction of Naval Records (BCNR). The

court explained that “[iJf an error were found sufficient

to warrant correction of [petitioner’s] misconduct

processing and discharge, he could be made whole by

later rulings of the BCNR or in a court.” Jd. at 43-44.

See also id. at 44-46.

With respect to the third and fourth Mindes factors,

the court found “that the potential interference with

[respondents’] ability to efficiently manage Naval per-

5

sonnel is great when a court interferes in a decision to

separate enlisted personnel.” Pet. App. 44; see also id.

at 47 (“{AJn involuntary separation from the military

has as its primary focus the preservation of the integ-

rity and fighting fitness of the armed forces.”). The

court found that the fourth factor “balances against

[petitioner], because this case clearly involves military

discretion exercised in matters of military personnel

moral[e] and discipline.” Jd. at 44.

3. The court of appeals affirmed in an unpublished

per curiam decision. Applying the Mindes test for

justiciability, which includes both the substantive

standards applied by the district court and procedural

elements concerning whether the servicemember has

invoked internal military remedies, the court stated

that dismissal for lack of jurisdiction was required

because petitioner had “failed to exhaust his admin-

istrative remedy before the Board for Correction of

Naval Records.” Pet. App. 2. The court also stated

that petitioner’s request for an injunction barring his

separation from the Navy is moot, because “[petitioner]

already has been discharged from the service.” /d. at 3.

ARGUMENT

The court of appeals’ decision is correct and does not

conflict with any decision of this Court or of any other

court of appeals. Further review is not warranted.

1. Petitioner’s principal argument (Pet. 8) is that the ©

court of appeals’ decision conflicts with this Court’s

decision in Darby v. Cisneros, 509 U.S. 137 (1993). This

Court held in Darby that, in cases brought under the

Administrative Procedure Act (APA), 5 U.S.C. 701 et

seq., the courts may apply the traditional doctrine of

exhaustion of administrative remedies “only when

expressly required by statute or when an agency rule

6

requires appeal before review and the administrative

action is made inoperative pending that review.” 509

U.S. at 154. The Court relied for that conclusion on

Section 10(c) of the APA, which provides that “agency

action otherwise final is final for the purposes of

[obtaining judicial review] whether or not there has

been presented or determined an application * * *,

unless the agency otherwise requires by rule and

provides that the action meanwhile is inoperative, for

an appeal to superior agency authority.” 5 U.S.C. 704.

In this case, the Navy has not required by rule that

sailors must bring their claims to the BCNR or other

internal review mechanisms before their separation is

final, and it has not provided that separation of a sailor

from the Navy will be “inoperative” until any such

review is completed.

a. Darby established that the general doctrine of

exhaustion of administrative remedies applies in APA

cases only under the circumstances specified in Section

10(c). But this Court noted in Darby that “federal

courts may be free to apply, where appropriate, other

prudential doctrines of judicial administration to limit

the scope and timing of judicial review.” 509 U.S. at

146. One such doctrine is the traditional equitable rule

that federal courts must weigh the public interest and

consider the hardship that an injunction would impose

before granting relief. That rule has particular force in

cases involving the military, in which interference—

especially premature interference—by a court can

implicate serious separation of powers concerns.

For example, in Weinberger v. Romero-Barcelo, 456

U.S. 305, 329-330 (1982), plaintiffs sued to enjoin the

Navy from discharging wastes in violation of the Clean

Water Act. This Court held that a court “should pay

particular regard for the public consequences in

7

employing the extraordinary remedy of injunction,” and

it noted that “[aJn injunction should issue only where

the intervention of a court of equity ‘is essential in

order effectually to protect property rights against

injuries otherwise irremediable.’” Jd. at 312 (quoting

Cavanaugh v. Looney, 248 U.S. 453, 456 (1919)). More-

over, the Court relied on the existence of an alternative

non-judicial remedy—the possibility that the Navy

could apply for and obtain a permit for its discharges—

in holding that the district court was not required to

issue an injunction against the Navy. See also Amoco

Prod. Co. v. Village of Gambell, 480 U.S. 531, 542-544 &

n.8 (1987) (noting that the existence of alternative

means to obtain statutory goal militated against injunc-

tion); Hecht Co. v. Bowles, 321 U.S. 321, 329 (1944) (“A

grant of jurisdiction to issue compliance orders hardly

suggests an absolute duty to do so under any and all

circumstances.”). Those principles do not conflict with

Darby, and they fully justify the refusal by the courts

below to interfere with military discipline and person-

nel actions while internal military avenues of relief

remain available. Cf. Clinton v. Goldsmith, 526 U.S.

529, 537-540 (1999) (holding injunctive relief under the

All Writs Act unavailable because of existence of alter-

native avenues of relief).

When a servicemember seeks to obtain an injunction

in a matter affecting the relationship between the .

servicemember and military superiors, there is a para-

mount public interest in avoiding judicial interference

—especially premature judicial interference—in inter-

nal military affairs. That public interest rests both on

the public interest in the military’s ability to maintain

discipline and thereby serve its function of protecting

the Nation’s security and on the separation of powers

concerns that are necessarily implicated by undue

8

judicial intrusion into internal military affairs. Accord-

ingly, the public interest in avoiding an injunction in

cases like this is at its apex. Applying the traditional

equitable principles recognized in cases such as

Romero-Barcelo, a court therefore would ordinarily

abuse its discretion in issuing an injunction—and,

therefore, in entertaining a suit for an injunction—

when the servicemember’s alleged injury can be

redressed by internal military means.’

i. The military services play a crucial role in pro-

tecting the national security. “To prepare for and

perform its vital role, the military must insist upon a

respect for duty and a discipline without counterpart in

civilian life.” Schlesinger v. Councilman, 420 U.S. 728,

757 (1975). Having developed as a result of “centuries

of experience,” Chappell v. Wallace, 462 U.S. 296, 300

(1983), the “military exigencies” that require such disci-

pline are “as powerful now as in the past.” Schlesinger,

420 U.S. at 757. Indeed, “[t]he essence of military

service ‘is the subordination of the desires and interests

of the individual to the needs of the service.’” Goldman

v. Weinberger, 475 U.S. 503, 507 (1986) (quoting Orloff

v. Willoughby, 345 U.S. 83, 92 (1953)). In short, “no

military organization can function without strict disci-

pline and regulation that would be unacceptable in a

civilian setting.” Chappell, 462 U.S. at 300.

The “heirarchical structure of discipline and obedi-

ence to command” is “unique in its application to the

military establishment and wholly different from civil-

ian patterns.” Chappell, 462 U.S. at 300; see also Orloff,

345 U.S. at 94 (“The military constitutes a specialized

community governed by a separate discipline from that

1 The same principles apply a fortiori to the issuance of tempo-

rary or preliminary relief in such cases. See note 4, infra.

9

of the civilian.”). Because undue outside intervention in

the system of military command risks compromising

that structure, the judiciary must be “scrupulous not to

interfere with legitimate [military] matters.” Orloff,

345 U.S. at 94. “Civilian courts must, at the very least,

hesitate long before entertaining a suit which asks the

court to tamper with the established relationship

between enlisted military personnel and their superior

officers; that relationship is at the heart of the necessar-

ily unique structure of the Military Establishment.”

Chappell, 462 U.S. at 300.

ii. In addition to the special needs of military disci-

pline, core constitutional separation-of-powers princi-

ples also require courts to exercise exceptional caution

before intervening in internal military matters. The

Constitution grants plenary authority to Congress “[t]o

raise and support Armies,” “[t]o provide and maintain a

Navy,” and “[t]o make Rules for the Government and

Regulation of the land and naval Forces.” U.S. Const.

Art. I, § 8, Cls. 12-14. It also provides that “(t]he

President shall be Commander in Chief of the Army

and Navy of the United States.” Jd. Art. II, § 2, Cl. 1.

Because such broad authority over military matters

and personnel is entrusted to Congress and the

President—not to the courts—“[o]rderly government

requires that the judiciary be as scrupulous not to

interfere with legitimate Army matters as the Army |

must be scrupulous not to intervene in judicial

matters.” Orloff, 345 U.S. at 94. Indeed, “(t]he com-

plex, subtle, and professional decisions as to the com-

position, training, equipping, and control of a military

force are essentially professional military judgments,

subject always to civilian control of the Legislative and

Executive Branches.” Gilligan v. Morgan, 413 U.S. 1,

10 (1973).

10

iii. Because of the exceptional dangers posed by

undue—and, in particular, premature—judicial inter-

vention in military personnel matters, the public inter-

est, which is always a factor of overriding importance in

exercising equity jurisdiction, generally prohibits

courts from issuing injunctions in cases in which inter-

nal military remedies are available to address the

plaintiff servicemember’s complaint. That does not

mean that courts have no role to play in enforcing

constitutional and statutory requirements applicable to

servicemembers. But “judicial inquiry into, and hence

intrusion upon, military matters,” United States v.

Stanley, 483 U.S. 669, 682 (1987), should be avoided in

cases in which a servicemember has alternative, intra-

service remedies available.

b. This case provides a typical instance in which

judicial intrusion into military matters is impermissible.

Petitioner has made no effort to avail himself of at least

two administrative processes—the BCNR and the Dis-

charge Review Board—that could have remedied any

violation of law that took place in his separation from

the Navy. Indeed, these expert bodies offer not only

the expertise in military matters not possessed by a

district court, but also the ability to develop an admin-

istrative record that would likely assist in any ultimate

judicial review sought by petitioner. Most importantly,

however, the investigation and resolution of petitioner’s

claims by those bodies would not be an unwanted and

potentially damaging interference with military disci-

pline, but would instead be an invocation of an available

procedure that is within the structure of internal mili-

tary remedies that Congress has specifically provided. .

i. First, the BCNR has statutory authority to

“correct any military record * * * when [it] considers

it necessary to correct an error or remove an injustice.”

11

10 U.S.C. 1552(a)(i). A claimant or the claimant’s heir

may “file[] a request for the correction within three

years after he discovers the error or injustice,”

although the Board may excuse failure to satisfy that

limitations period “if it finds it to be in the interest of

justice.” 10 U.S.C. 1552(b).? The function of the BCNR

is to determine “the existence of error or injustice,” and

when appropriate, “to make recommendations to the

Secretary” of the Navy. 32 C.F.R. 723.2(b). The BCNR

has the authority to consider claims of “constitutional,

statutory and/or regulatory violations.” 32 C.F.R.

723.3(e)(4). The Secretary of the Navy, upon receipt of

a BCNR recommendation, is empowered to “direct such

action as he or she determines to be appropriate.” 32

C.F.R. 723.7(a). The Secretary thus may order rein-

statement, back pay, promotion, or any other relief he

finds “appropriate.” See Goldsmith, 526 U.S. at 538;°

Chappell, 462 U.S. at 301-303.

2 Petitioner accordingly would have three years from the date

of his discharge in February 2000 to file a claim before the BCNR.

3 Clinton v. Goldsmith, supra, presented the question whether

the Court of Appeals for the Armed Forces, acting in aid of its

jurisdiction over appeals from some courts-martial, had jurisdic-

tion under the All Writs Act, 28 U.S.C. 1651(a), to enjoin the Presi-

dent and other officials from dropping an officer from the rolls.

During the oral argument in Goldsmith, the government stated -

that “under this Court’s decision in Darby v. Cisneros, unless there

is a specific statutory or regulatory requirement of exhaustion, the

servicemember need not, before bringing an APA action, exhaust

* * * the provided administrative remedy, such as the BCMR.

He can do it, but he can also make a challenge to the actual decision

to drop him from the rolls.” Tr. at 11, Clinton v. Goldsmith, supra

(No. 98-347). The Court, however, recognized in Darby the con-

tinued application of “other prudential doctrines of judicial admini-

stration to limit the scope and timing of judicial review” in APA

actions. 509 U.S. at 146. For the reasons given in this brief,

12

Second, the Discharge Review Board also has broad

powers under 10 U.S.C. 1553. While the Discharge

Board may not reinstate a discharged or dismissed

serviceman, it is authorized to “change a discharge or

dismissal, or issue a new discharge, to reflect its

findings.” 10 U.S.C. 1553(b). See also 32 C.F.R.

724.202(a)(2). The function of the Discharge Board is,

inter alia, to correct any “injustice or inequity in the

discharge issued.” 32 C.F.R. 724.203(b). Such review is

conducted on the basis of military records and “such

other evidence as may be presented to the board,”

including evidence that may be presented “in person or

by affidavit.” 32 C.F.R. 724.202(a)(3). Aggrieved per-

sons may be represented by counsel or by other per-

sons. Ibid. The jurisdiction of the Discharge Review

Board includes all discharges other than those pursuant

to general court-martial. 32 C.F.R. 724.107. A

longstanding equitable doctrines governing the issuance of injunc-

tions ordinarily preclude courts from granting such relief so long as

internal military remedies are available. ~

In its opinion in Goldsmith, the Court noted that one reason

that All Writs Act jurisdiction was not available to the plaintiff

was that the plaintiff had alternative remedies available—either

“to present his claim to the Air Force Board for Correction of

Military Records,” 526 U.S. at 538, or to the federal courts either

on APA review of the Board’s decisior or in a suit for money

damages under the Tucker Act, id. at 539-540. The Court thus

recognized and relied upon the fact that judicial review is available

after a decision of the Board of Corrections, a proposition that is

entirely consistent with the position taken in this brief. It is

noteworthy that the Court did not suggest that a district court

could exercise jurisdiction over the decision to drop the plaintiff

from the rolls prior to a decision by the Board of Corrections;

nothing in Goldsmith accordingly suggests that a district court

could properly exercise jurisdiction over the analogous decision in

this case to discharge petitioner.

t

servicemember has up to 15 years to apply for such

review. 32 C.F.R. 724.205(b). Thus, the Discharge

Review Board could change petitioner’s discharge:to a

fully honorable discharge if the law or equities in his

case so required.

ii. It is worth emphasizing that the facts that inter-

nal military remedies may take some time to operate,

and that petitioner may in the meantime be separated

from the service, do not warrant permitting him to

proceed directly to district court. In Romero-Barcelo,

for example, the alternative remedy on which the Court

relied (the ability of the military to apply for and obtain

a discharge permit) would not have remedied the

existing violation of law as quickly as a simple order by

the district court, perhaps even as a matter of tempo-

rary or preliminary relief, to the military to cease its

discharges. Nonetheless, the Court held that the

alternative remedy may be sufficient to warrant the

court’s withholding cf injunctive relief. Here, the

public interest in avoiding undue intrusion by the

judiciary in internal military discipline is of overarching

importance. So long as internal military remedies are

available to petitioner, the fact that their invocation

may take some time (as, of course, would district court

litigation) does not justify a court’s exercise of its

equity jurisdiction.‘

* It is difficult to conceive of circumstances in which a district

court would be warranted in granting a temporary restraining

order or preliminary injunction in a federal military personnel

matter. Such forms of preliminary relief are necessarily tentative,

and the fact that they are subject to change later in the litigation

serves to make them particularly threatening to the ability of the

military command structure to administer military personnel in

14

ec. In any event, further review in this case is unwar-

ranted. The Fifth Circuit’s decision is unpublished, and

it therefore does not have full precedential effect even

in the Fifth Circuit. See 5th Cir. R. 47.5.4. Petitioner

the interests of the Nation’s security.

In a case involving the discharge of a federal civilian employee,

this Court has held that a lower court would be “quite wrong in

routinely applying * * * the traditional standards governing

more orthodox ‘stays.’” Sampson v. Murray, 415 U.S. 61, 83-84

(1974). To obtain such relief, a federal civilian employee “at the

very least must make a showing of irreparable injury sufficient in

kind and degree to override the[] factors cutting against the

general availability of preliminary injunctions in Government per-

sonnel cases.” Jd. at 84. This Court “ha[s] held that an insuffi-

ciency of savings or difficulties in immediately obtaining other

employment—external factors common to most discharged em-

ployees and not attributable to any unusual actions relating to the

discharge itself—will not support a finding of irreparable injury,

however severely they may affect a particular individual.” Jd. at

92 n.68. It follows a fortiori that temporary or preliminary relief in

the even more sensitive context of personnel actions affecting

members of the military are likely to be unavailable. See, e.g.,

Guitard v. United States Secretary of Navy, 967 F.2d 737, 742 (2d

Cir. 1992) (holding that Sampson “applies with as much or greater

force in the case of a military discharge”); Guerra v. Scruggs, 942

F.2d 270, 274 (4th Cir. 1991) (holding that “Sampson’s higher

requirement of irreparable injury should be applied in the military

context given the federal courts’ traditional reluctance to interfere

with military matters”); Hartikka v. United States, 754 F.2d 1516,

1518 (9th Cir. 1985) (holding that Sampson requires the plaintiff to

“make a much stronger showing of irreparable harm than the

ordinary standard for injunctive relief”); Chilcott v. Orr, 747 F.2d

29, 34 (1st Cir. 1984) (holding that “the prospect of a general

discharge under honorable conditions is not an injury of sufficient

magnitude to warrant an injunction”). In sum, neither the irrepa-

rable injury nor the public interest prongs of the familiar four-part

test for temporary injunctive relief will be satisfied in an action

seeking to enjoin a military personnel decision.

15

claims (Pet. 9) that the decision in this case conflict

with Dowds v. Clinton, 18 F.3d 953 (D.C. Cir. 1994)

(Table), but that decision too is unpublished, and it

likewise lacks precedential effect. See D.C. Cir. R. 28(c)

(“Unpublished orders or judgments of this court,

including explanatory memoranda and sealed opinions,

are not to be cited as precedent.”). Accordingly, there

is no conflict in the circuits.

2. Petitioner claims (Pet. 10) that the court of

appeals erred in finding that his claim for a permanent

injunction precluding his discharge was moot. Peti-

tioner had been discharged by the time the court of

appeals issued its decision. He offers no reason why his

claim for a permanent injunction prohibiting his dis-

charge was therefore not moot. As petitioner notes

(Pet. 11), his claim for reinstatement was not moot. But

the court of appeals dismissed his appeal with respect

to that claim because of his failure to seek a remedy

before the BCNR, not because of mootness. The court

of appeals’ mootness holding was accordingly correct

and does not warrant further review.

3. Petitioner’s remaining contentions are that the

district court erred in its analysis of petitioner’s claim

that his discharge violated the Due Process Clause

5 Two other appellate decisions have addressed similar or re- |

lated issues, but they also were unpublished. Robertson v. United

States, 145 F.3d 1346 (10th Cir. 1998) (Table), cert. denied, 525 U.S.

879 (1999); Ostrow v. Secretary of the Air Force, 48 F.3d 562 (D.C.

Cir. 1995) (Table). The reported district court decisions are split.

Compare Saad v. Dalton, 846 F. Supp. 889, 891 (S.D. Cal. 1994)

(“{rjeview of military personnel actions * * * is a unique context

with specialized rules limiting judicial review”), with, e.g., Crane v.

Secretary of the Army, 92 F. Supp. 2d 155, 162 (W.D.N.Y. 2000)

(reviewing merits of discharge case despite availability of internal

military remedies).

16

(Pet. 12-18) and that his discharge violated the APA

because it was arbitrary and capricious (Pet. 18-22) and

not supported by substantial evidence (Pet. 23-25).

Those fact-bound contentions were not addressed by

the court of appeals, and they are therefore not ripe for

review by this Court. Petitioner is free to press those

claims on their merits before the BCNR, which has

the authority to consider claims of “constitutional,

statutory and/or regulatory violations.” 32 C.F.R.

723.3(e)(4). He may then seek judicial review of the

resolution of those claims.

CONCLUSION

The petition for a writ of certiorari should be denied.

Respectfully submitted.

BARBARA D. UNDERWOOD

Acting Solicitor General

STUART E. SCHIFFER

Acting Assistant Attorney

General :

- ANTHONY J. STEINMEYER

MARK W. PENNAK

Attorneys

APRIL 2001