Rehearing and Rehearing En Banc Denied October 18, 1974.
GOLDBERG, Circuit Judge:
On June 1, 1972, the Department of the Army directed the Commanding General of Fort Benning, Georgia to grant Staff Sergeant (E-6) Kenneth L. Hodges an honorable discharge as soon as possible "for the convenience of the Government." Then midway through his second six-year period of enlistment in the army, Sergeant Hodges was understandably unwilling to see his hopes for a military career so abruptly terminated, even for the price of an honorable discharge. Accordingly, on June 7, 1972, two days before the date set for his separation, Sergeant Hodges invoked the assistance of the United States District Court for the Middle District of Georgia.
As subsequent amendments to the pleadings made clear, the gravamen of Hodges' complaint was that though ostensibly ordered "for the convenience of the Government," the discharge was in fact designed as punishment for Hodges' participation in the tragic events at My Lai 4, Republic of South Vietnam, on March 16, 1968.
For over a year the district court stayed the Army's discharging hand in order to preserve the status quo pending disposition of the case on its merits. Following an evidentiary hearing in May 1973, however, the district court on June 20, 1973, granted a partial summary judgment for defendants-appellees and dismissed Hodges' complaint for failure to state a claim and for want of subject matter jurisdiction.
Although federal courts are not totally barred from barracks rooms and billets, our access is restricted. Writing for this Court in Mindes v. Seaman, 5 Cir. 1971, 453 F.2d 197, 201, Judge Clark framed a general statement of our authority:
The first portion of this formula may often be the more difficult to apply, for not all allegations technically within its perimeters are reviewable. Thus the trial court must "examine the substance of [the] allegation in light of the policy reasons behind nonreview of military matters," balancing, inter alia, the nature and strength of the challenge to the military determination, the potential injury to the plaintiff if review is refused, the type and degree of anticipated interference with the military function, and the extent to which the exercise of military expertise or discretion is involved. Id. At the same time, concentration on the balancing act required to measure the sufficiency of the allegations should not obscure the importance of the second portion of the Mindes formula — the exhaustion requirement.
Beginning with McCurdy v. Zuckert, 5 Cir. 1966, 359 F.2d 491, cert. denied, 1966, 385 U.S. 903, 87 S.Ct. 212, 17 L. Ed.2d 133, this Court has firmly adhered to the rule that a plaintiff challenging an administrative military discharge will find the doors of the federal courthouse closed pending exhaustion of available administrative remedies. Accord, Davis v. Secretary of the Army, 5 Cir. 1971, 440 F.2d 817; Stanford v. United States, 5 Cir. 1969, 413 F.2d 1048; Tuggle v. Brown, 5 Cir., 362 F.2d 801, cert. denied, 1966, 385 U.S. 941, 87 S.Ct. 311, 17 L.Ed.2d 220. For purposes of this requirement, two types of administrative bodies provide review of discharge decisions.
As previous decisions of this Court should have made clear, our basic exhaustion principle has two important corollaries. First, as with exhaustion of administrative remedies in other contexts, the exhaustion doctrine in review of military discharge decisions is subject to limitations or exceptions. The most important of these is that only those remedies which provide a real opportunity for adequate relief need be exhausted. Stated somewhat differently, exhaustion is inapposite and unnecessary when resort to the administrative reviewing body would be futile.
The second corollary to our basic exhaustion principle is that having once determined the applicability of the exhaustion doctrine, a district court generally may not further entertain a complaint until the requirement is satisfied. If the suit was filed after discharge, the court may not retain jurisdiction while the plaintiff resorts to administrative review.
Examination of the case sub judice in light of these two corollaries to the exhaustion doctrine clearly reveals the error below. Although appellant initially alleged that he had exhausted available intraservice remedies, it is quite clear that he has not yet attempted appeal to either the ADRB or the ABCMR. Appellees have conceded that Hodges need not approach the ADRB since that body deals only with changes in the type of discharge, whereas Hodges is complaining basically of the
It seems quite clear to us that the ABCMR can, if it determines that Hodges has been illegally discharged, grant him full reinstatement and restoration of all rights, thus in effect making him whole for any injury he might suffer from a wrongful discharge.
Hodges argues that resort to the ABCMR in his case would obviously be futile and therefore ought not be required. Since the Secretary of the Army ordered this discharge, Hodges insists, the ABCMR would be very reluctant to find any significant error in Hodges' favor. Besides, the statute grants final approval over the Board's decision to the Secretary, and he most certainly would not countermand himself, regardless of the Board's recommendation.
Appellees offer several responses to this futility argument. Although we do not share their overly sanguine view regarding the efficacy of the intraservice administrative review procedures, we do agree that requiring Hodges to exhaust those remedies will not necessarily be an exercise in futility. According to the Army regulations implementing 10 U.S.C. § 1552, the ABCMR may not "deny an application
In any event, to base an exception to the exhaustion requirement on the fact that the final administrative decision is subject to the discretionary power of the Secretary would in effect turn the exhaustion doctrine on its head. Exhaustion is required in part because of the possibility that administrative review might obviate the need for judicial review. That the administrative process might not have this effect is not usually a reason for bypassing it. And since the Service Secretary always has the final say over decisions by both the DRB and the BCMR, appellant's futility reasoning would mean that exhaustion of intraservice remedies should always be excused. The administrative remedy available to grievants like appellant Hodges may offer cold comfort and small consolation, but it is surely beyond our authority to permit the exceptions to the exhaustion doctrine to swallow the rule.
We recognize, of course, that considerable resources, judicial as well as combatant, have been expended since this litigation began over two years ago. And mindful of Mr. Justice Black's warning in another context against administrative procedures that exhaust the grievant before he can exhaust them, we are conscious of the burden on a plaintiff who at this stage of the game learns that he must begin anew at square one. Yet as serious as these considerations may be in Sergeant Hodges' individual case, we do not believe they justify overriding the exhaustion requirement. The exhaustion doctrine rests on legitimate and important policy objectives relating to the balance between military authority and the power of federal courts.
For one thing, we can avoid premature court review that might upset the balance between the civilian judiciary and the military as a separate administrative and judicial system. We can prevent untoward, unreasonable interference with the efficient operation of the military's judicial and administrative systems and allow the military an opportunity to exercise its own expertise and rectify its own errors before a court is called to render judgment. Moreover, we can guard, at least in the future, against inefficient use of judicial resources by requiring "finality" within the military system and thus avoiding needless review.
Since the exhaustion requirement does apply in the instant case, our decisions in McCurdy v. Zuckert, supra, and Tuggle
We emphasize that our holding is only that Hodges approached the courthouse prematurely and that the court below erred in permitting him to enter without first surmounting the exhaustion hurdle. Hodges would synonomize pessimism with futility, but courts must — at least initially — indulge the optimistic presumption that the military will afford its members the protections vouchsafed by the Constitution, by the statutes, and by its own regulations. Certainly Kenneth L. Hodges did not surrender his right to due process of law when he doffed mufti. When he has completed his intraservice appeals, he is free to return in search of judicial review. The barricade erected by the exhaustion requirement does not completely block the courtroom door.
Reversed and remanded.
On August 3, 1971, appellant received a letter from the Adjutant General of the Army informing him that a complete administrative review had been conducted at Department of the Army Headquarters in Washington, D. C., to determine whether his duty performance at My Lai had met expected professional standards. As a result of this review, the Army Chief of Staff had received a recommendation that "certain adverse actions be taken" because of "substandard performance of duty," and he in turn had recommended that Hodges be honorably discharged and barred from future reenlistment in the Army. The letter informed appellant that he could submit a written rebuttal by August 30, and enclosed a statement of the factual basis for the recommended action. It also informed him of his right to have military counsel, if he desired, to assist in the preparation of the rebuttal.
Appellant did submit a written rebuttal to the Department of the Army. On December 29, 1971, he learned that his rebuttal had been considered, that he could submit further information if he wished, but that he could not have a personal appearance. He apparently never learned the nature of the "administrative review" board, its composition, or the names of the witnesses consulted by it. Apparently he was told throughout that his discharge was based on his substandard conduct at My Lai. According to appellant, the letter of August 3, 1971, and the succeeding events clearly demonstrate that with the honorable discharge the Army was attempting to do indirectly what it had been unable to do directly — punish him for his action at My Lai.
It has been suggested that exhaustion of administrative remedies is inappropriate where it would cause irreparable injury to the plaintiff pending administrative review. See, e. g., Lunding, supra note 2, at 72; Sherman, supra note 6, at 498. The Sims court recognized that, on the facts of that case, requiring the plaintiff to accept discharge and then seek administrative review could have a "substantial deleterious effect" on his future career were he ultimately to prevail, though the panel carefully noted that this factor alone was insufficient to place Sims' case in the category of exceptions to the exhaustion requirement. It has also been suggested that exhaustion should not be required in cases posing important constitutional questions over which the administrative review body has no special expertise or authority. Sherman, supra note 6, at 498. In the case sub judice, however, we need not catalogue the exceptions to the exhaustion doctrine nor essay their full contours.
In McCurdy v. Zuckert, supra, the district court, though declining to enjoin an imminent general discharge, did retain jurisdiction of a pre-discharge suit while the plaintiff went to the Air Force BCMR. We reversed because BCMR review, which could repair any possible injury, was available after discharge; thus the suit was premature and the district court lacked jurisdiction. In Tuggle v. Brown, supra, we affirmed the district court's decision refusing to restrain the Air Force from granting the plaintiff an undesirable discharge and dismissing his complaint. For a summary of the conflicting decisions in other Circuits regarding the exhaustion requirement and the availability of pre-discharge relief, see Lunding, supra, at 69.