assertion that the Department of the Navy applied Annex D in its review process without notifying applicants of its relevance is without foundation. Because the Court finds that the current regulations governing the Navy DRB's use of Annex D fully comply with 5 U.S.C. § 552(a)(1), it must award defendants summary judgment. Accordingly, plaintiffs' motion for a preliminary injunction shall be denied and defendants' motion for summary judgment granted.
4. Annex E: Department of Defense Interpretations of the New Uniform Discharge Review Standards.
Annex E consists of a memorandum from the Department of Defense, Office of General Counsel, regarding the implementation of certain regulations concerning the applicability of the presumption of regularity in the review of discharges for the good of the service. The memorandum is already printed in the Federal Register, but, like the guidelines in Annex B, it appears under the heading "DEPARTMENT OF DEFENSE/Department of the Army." 44 Fed.Reg. 25046, 25095 (1979). The difficulties raised by this memorandum are virtually identical to those which the Court encountered in analyzing Annex B. Although both annexes are generally applicable to all DRBs, plaintiffs submit that the publication appears to limit their effect to the Army DRB. They argue that the confusion which results from this heading precludes defendants' compliance with the requirements of 5 U.S.C. § 552(a)(1). For the reasons stated with respect to Annex B, the Court finds that the publication here is adequate. Accordingly, plaintiffs' motion for a preliminary injunction shall be denied and defendants' motion for summary judgment granted.
5. Annex F: Navy Standards Regarding the Appropriateness of an Undesirable Discharge.
Annex F provides an explanation of the procedures which the Navy employs in its administrative discharge process. Like the material in Annex D, which related to discharges for homosexuality, the Annex F guidelines pertain directly to the discharge process, and not the review of discharges. Yet, as with Annex D, the Navy DRB appears to follow 32 C.F.R. § 70.6(c)(1) (1978) and rely on these guidelines in determining whether to recharacterize a veteran's discharge. All of the Court's observations concerning Annex D are fully applicable to the material in Annex F. Accordingly, the Court shall deny plaintiffs' motion for a preliminary injunction with respect to the Annex F material and grant defendants' motion for summary judgment.
6. Annex H (final seven pages): Air Force DRB Procedures and Definition of Terms Used by the Army DRB.
This Annex consists of two separate items: 1) a memorandum from the Department of the Air Force, Office of the Assistant Secretary, regarding factors to be weighed in the review process and 2) a letter from the Secretary of the Army to United States Senator Alan Cranston regarding the clarification of certain terms used in the criteria for discharge review.
First, defendants contend that the critical material in the Air Force Memorandum has already been published in the Federal Register and as a result, the requirements of 5 U.S.C. § 552(a)(1) have already been met. It is clear, however, that the memorandum contains several interpretations which are not already available. Because these interpretations appear sufficiently general for the purposes of section 552(a)(1), the Court shall grant plaintiffs' motion with respect to this material.
Defendants contend that the second part of Annex H, the letter by the Secretary of the Army, need not be published because it was not intended to offer guidance to the Army DRB. Yet, on its face, the letter states that these are "directives" intended to clarify terms set forth in the "Criteria for Discharge Review." The Court is persuaded that these clarifications are also sufficiently general to satisfy the standard of 5 U.S.C. § 552(a)(1). Accordingly, with respect to this letter, it shall grant plaintiffs' motion for a preliminary injunction.
In sum, the Court finds that Annexes B & E as well as parts of H are statements or interpretations of general rules which must be published in the Federal Register. Yet, because defendants have fulfilled their statutory obligations for Annexes B & E, their motion for summary judgment is granted. Defendants' failure to do the same for Annex H supports an award of preliminary injunctive relief to the plaintiffs. Defendants have also plainly fulfilled their publishing obligations for Annexes C1, D & F and thus, an award of summary judgment is appropriate.
Plaintiffs' motion for a preliminary injunction also seeks to compel the defendants to issue an index of Annexes A through H. Plaintiffs contend that this index is required by section 552(a)(2)"s requirement that "each agency shall also maintain . . . current indexes . . . as to any matter . . . required by this paragraph to be published." 5 U.S.C. § 552(a)(2) (1976) (emphasis added). Plaintiffs interpret the word "this paragraph" to include subsections (1) and (2) of section 552(a). Defendants, however, read this term as referring only to subsection (2). Because some of the material involved appears to fall within subsection (1), they are opposed to its indexing.
The Court finds that defendants' interpretation of the statute is essentially correct and as a result, it grants their motion to dismiss with respect to the subsection (1) material. "The starting point in every case involving the construction of a statute is the language itself." International Brotherhood of Teamsters v. Daniel, 439 U.S. 551, 557, 99 S. Ct. 790, 795, 58 L. Ed. 2d 808 (1979). The words "this paragraph," by their plain meaning, refer to a specific paragraph; an examination of the statute shows that subsections (1) and (2) are separate paragraphs. Thus, the designation can only refer to subsection (2), the paragraph in which it is found. Moreover, the Senate Report on the 1974 amendment to the Freedom of Information Act, instructs:
The index provides identifying information for the public regarding matters issued, adopted, or promulgated by the agency and required to be made public by section 552(a)(2) of the Freedom of Information Act.
S.Rep.No.854, 93d Cong., 2d Sess. 8 (1974). The House Conference Report, which contains the first appearance of the language at issue, explains, "the conference substitute follows the Senate amendments . . ." H.R.Rep.No.1380, 93d Cong., 2d Sess. 6 (1974). Thus, the new wording did not alter the substance of the law. An examination of the legislative history of the Act reveals numerous references to the indexing requirement and all of them are clear in their language limiting its scope to subsection (a)(2). Indeed, the Court has not found one shred of evidence in the legislative record that the statute was intended to possess the sweep which plaintiffs propose. Because the indexing requirement does not apply to subsection (a)(1) rules of general applicability, the Court must grant defendants' motion to dismiss as to all annexes which appear to fall within this subsection. These annexes are labeled: A, B, C2, E, G & H.
The remaining annexes, marked C1, D & F, do not appear to fall within the scope of subsection (a)(2), in terms of their relationship to the review boards. Accordingly, the Court shall deny plaintiffs' claim for a preliminary injunction requiring the preparation of indexes for this material. Yet, because the precise status of these annexes is uncertain, defendants' motion for summary judgment is also denied.
C. Mailing of Actual Notice
Finally, plaintiffs submit that the defendants should be required to provide DRB applicants with actual notice of the material contained in annexes A through H. Actual notice by mail is not required under the Freedom of Information Act and the Court concludes that there is no basis for the implication of this new remedy. Accordingly, it grants defendants' motion to dismiss.
In sum, although the Court finds that plaintiffs have satisfied the criteria for a preliminary injunction with respect to the publication of annex H, their claim is deficient in all other respects.
IV. DEFENDANTS ARE ENTITLED TO SUMMARY JUDGMENT ON COUNT I, NACV'S CLAIM UNDER 38 U.S.C. § 3103(e)(1).
Count I of NACV's complaint seeks enforcement of the alleged statutory mandate of 38 U.S.C. § 3103(e)(1). This statute states:
(e)(1) Notwithstanding any other provision of law, (A) no benefits under laws administered by the Veterans' Administration shall be provided, as a result of a change in or new issuance of a discharge under section 1553 of title 10, except upon a case-by-case review by the board of review concerned, subject to review by the secretary concerned, under such section, of all the evidence and factors in each case under published uniform standards (which shall be historically consistent with criteria for determining honorable service and shall not include any criterion for automatically granting or denying such change or issuance) and procedures generally applicable to all persons administratively discharged or released from active military, naval, or air service under other than honorable conditions; and (B) any such person shall be afforded an opportunity to apply for such review under such section 1553 for a period of time terminating not less than one year after the date on which such uniform standards and procedures are promulgated and published.
Act of October 8, 1977, Pub.L. No. 95-126, § 1(a)(2), 91 Stat. 1106 (codified at 38 U.S.C. § 3103(e)(1)) (emphasis added). In essence, NACV's complaint asserts that the rules employed by the DRBs are not sufficiently uniform to comply with the mandate of section 3103(e)(1). NACV notes that, among those discharged by reason of unfitness, the percentages of servicemembers receiving Honorable, General or Undesirable Discharges vary widely from service to service, and even from year to year within each branch of the Armed Forces. For example, in 1976, 55% of those in the Army who were discharged for unfitness received Honorable Discharges; the corresponding percentage in the Marines and Navy was 5%. Four years earlier, the Navy figure had been 36%. First Amended Complaint P 28 (filed March 5, 1979). NACV asserts that section 3103's "uniformity" requirement is intended to end these disparities, and that if truly uniform rules were issued for the upgrading of discharges, inconsistencies between the services would, in fact, be eliminated. The continuing existence of discrepancies, NACV concludes, is proof of defendants failure to comply with the law. Because the Court is persuaded that defendants have fulfilled the intended mandate of section 3103(e)(1), it grants defendants' motion for summary judgment.
The primary purpose of section 3103(e) of title 38, United States Code, is to prevent the award of veterans benefits to individuals who automatically received upgraded discharges under the clemency programs initiated by Presidents Ford and Carter. See S.Rep.No.305, 95th Cong., 1st Sess. (1977); H.R.Rep.No.580, 95th Cong., 1st Sess. (1977), U.S.Code Cong. & Admin.News 1977, p. 2844. The statute reflects congressional concern with the inequity of awarding veterans benefits in a manner which would not be historically consistent. The legislature feared that some individuals who had engaged in undesirable conduct would become eligible for benefits, while others who had committed the same transgressions but served during an earlier era, would remain ineligible. As a result, the statute requires the application of "historically consistent" criteria. The "uniformity" requirement which forms the basis of NACV's complaint was added to the proposed law, S.1307, 95th Cong., 1st Sess. (1977) at a later stage in the legislative process, after the bill had been reported out of committee. See Amendment No. 765, reprinted in 123 Cong.Rec. S14336 (Sept. 8, 1977). The legislative record accompanying this new provision clearly indicates that the "uniformity" referred to something more than mere historical consistency. Senator Cranston, the apparent author of the measure, explained that the amendment would establish a "new discharge review program" founded on four principles. While one of these principles was the notion of historical consistency, a separate principle was the need for uniformity. The Senator declared:
Third, the program's standards and procedures must be "uniform". For several years, the discharge-review process has been criticized for the great disparities in the results among the services. I believe that the requirement of "uniform standards" will be very beneficial in this regard. The guidelines for discharge-review determination have, in the past, been set forth in internal memorandums and have not been codified and published. Thus, in the case of the Army Discharge Review Board, for example, such guidelines have, at least in part, been set forth in an unpublished document from the Board's president entitled "President's Standard Operating Procedure". In fact, the only published codification of discharge-review standards appears to have been the April 26, 1977, publication in the Federal Register of special discharge review program standards.
123 Cong.Rec. S14338 (Sept. 8, 1977).
The question raised by the instant motion is whether material facts remain in dispute regarding the uniformity of defendants' regulations. The Court holds that defendants' regulations, which appear at 32 C.F.R. pt. 70 (1978), fulfill the congressional mandate. Section 70.6 of title 32, Code of Federal Regulations, establishes upgrading criteria for all DRBs and the Court finds these criteria adequate. Plaintiff's contention that the defendants must issue standards which are so uniform as to remove all disparities in results is without merit. Although Congress was certainly concerned with the possibility of injustice resulting from the uneven application of upgrading criteria, the legislative record simply does not reflect the sweeping intent which NACV proposes. The "uniformity" mandated by Congress consisted of uniform rules, not uniform results. Differences in the availability of certain discharges for members of the Army, Navy or Air Force reflect, to some extent, the varying missions and disciplinary needs of each branch of the armed forces. While the legislative record clearly calls for uniform standards, it does not state that these historical differences are to be eliminated entirely. The Court is reluctant to order such sweeping reforms in the face of an ambiguous statute and complete legislative silence. Accordingly, it rejects NACV's contention that disparities in results may form the basis of a claim under 38 U.S.C. § 3103(e)(1).
V. THE COURT GRANTS DEFENDANTS' MOTION FOR SUMMARY JUDGMENT AS TO THE COUNTS INVOLVING PLAINTIFFS' RULE-MAKING PETITIONS.
In counts V through XVII of their complaint, plaintiffs assert that the defendants violated the Administrative Procedure Act, 5 U.S.C. § 706(2), by failing to promulgate certain rules which the plaintiffs have presented in rule-making petitions. Plaintiffs contend that, as a matter of law, the defendants are required to adopt and publish these rules and they seek an injunction compelling their adoption. The Court is persuaded that defendants are entitled to summary judgment on counts V through XVII.
In Natural Resources Defense Council, Inc. v. SEC, 196 U.S.App.D.C. 124, 606 F.2d 1031 (D.C.Cir.1979) the court of appeals for this circuit reviewed a complaint similar to the one presented here. The plaintiffs in NRDC v. SEC sought to compel the defendant agency to adopt rules which were not statutorily mandated. The court noted, "The interests of plaintiffs in this context will . . . rarely present unusual or compelling circumstances calling for judicial review." Id. at 138, 606 F.2d at 1045. Concerned with the possible deleterious effects of reviewing such complaints, the court explained that requiring an agency to defend its decision not to adopt certain rules could "divert scarce institutional resources into an area that the agency in its expert judgment has already determined is not even worth the effort already expended." Id. at 143, 606 F.2d at 1045. The court concluded, however, that such agency decisions were subject to review. It provided the following rule:
The stringency of our review, in a given case, depends upon an analysis of a number of factors, including the intent of Congress, as expressed in the relevant statutes, particularly the agency's enabling statute; the needs, expertise, and impartiality of the agency as regards the issue presented; and the ability of the court effectively to evaluate the questions posed.
Id. at -- , 606 F.2d at 1050. In this case, the calculus of these interests supports an award of summary judgment to the defendants.
First, the Court has already ruled that the regulations issued at 32 C.F.R. pt. 70 satisfy the "uniformity" requirement of 38 U.S.C. § 3103(e)(1). To the extent that plaintiffs' rule-making claim is based directly on this statute, it is plainly precluded by the Court's holding. In addition, inherent in the Court's holding that the mandate of the statute had been met is the concept that the statute provides the defendants with a certain degree of discretion in promulgating rules pursuant to section 3103(e)(1). In other words, the statute does not require that specific rules be enacted; it only demands that the rules, which are enacted, be published, uniform, generally applicable and historically consistent with criteria for determining the award of veteran's benefits. At the heart of plaintiffs' rule-making claim is the assertion that the defendants are bound to promulgate every rule which they follow, regardless of its obviousness or its appearance elsewhere in statutory or case-law form. The logical end of this assertion would be a codification of every conceivable aspect of DRB operation. Thus, for example, count XVII of plaintiffs' complaint calls for the promulgation of a rule specifying the time in which DRB proceedings shall be completed. This rule is purportedly required by section 555(b) of title 5, United States Code, which provides that an agency shall conclude matters "within a reasonable time." The statute, however, provides its own mandate and thus, it need not be codified in the form of a DRB rule; the language of section 3103(e)(1) that the defendants operate under "published" rules cannot be construed to require the precise codification which plaintiffs appear to urge. See Center for Auto Safety v. Bowers, 466 F. Supp. 829 (D.D.C.1979).
Significantly, plaintiffs, in this complaint, do not raise the issue of defendants' actual compliance with the alleged requirements of the various proposed rules. They only complain that the defendants' obligation to comply has not been codified and published in the Federal Register. In reviewing the limited nature of plaintiffs' complaint, the Court finds that section 3103(e) (1) does not require the defendants to codify every obligation imposed by statute. If the obligation is clearly imposed by law or statute, it could well be an otiose gesture for the defendants to promulgate and publish a rule which does no more than parrot pre-existing requirements. Thus, under the first of the criteria proposed in NRDC v. SEC, supra, the Court holds that the relevant enabling statute delegated to the defendants significant discretion in their selection of substantive rules for DRB review.
Because the essence of plaintiffs' claim is that the defendants are obligated to promulgate the proposed rules, the Court is not directly called upon to determine whether defendants have behaved arbitrarily or capriciously. However, plaintiffs rely broadly on 5 U.S.C. § 706(2) and, therefore, some determination of the quality of defendants' behavior is appropriate, and perhaps necessary, for an award of summary judgment. A brief review of the remaining criteria suggested by NRDC v. SEC, supra, indicates that plaintiffs have failed to place in dispute material facts regarding the arbitrariness or capriciousness of the defendants' conduct. The needs of the defendants in the review process and their expertise in this area both call for deferential review of their conduct. Moreover, the Court's limited ability to evaluate the propriety of the rules proposed by plaintiffs provides further support for deference to defendants' expertise. Taking these factors into account, the Court is presented with no allegation to support a finding that the defendants acted in contravention of 5 U.S.C. § 706(2).
The facts rendered material by this Court's interpretation of the relevant statutes are not in dispute. Moreover, it is clear that defendants' behavior has been neither arbitrary nor capricious. Accordingly, defendants shall be awarded summary judgment with respect to counts V through XVII.
The Court grants in part plaintiffs' motion for class certification and it grants plaintiffs' motion for a preliminary injunction regarding the publication of Annex H. It grants defendants' motion for summary judgment with respect to the publication of Annexes B, C1, D, E & F, count I (NACV's claim under 38 U.S.C. § 3103(e)(1)) and counts V through XVII (plaintiffs' rule-making petitions). It grants their motion for dismissal regarding the indexing of Annexes A, B, C2, E, G & H and the mailing of all Annexes. Thus, the sole remaining issues in the case are final injunctive relief concerning the publication of Annex H and the indexing of Annexes C1, D & F.
An order in accordance with the foregoing will be issued of even date herewith.
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