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NATIONAL ASSN. OF CONCERNED VETERANS v. SECRETARY

November 16, 1979

NATIONAL ASSOCIATION OF CONCERNED VETERANS, et al,
v.
SECRETARY OF DEFENSE, et al.



The opinion of the court was delivered by: RICHEY

MEMORANDUM OPINION

This case is before the Court on plaintiffs' motion for a preliminary injunction and defendants' motion for summary judgment or, in the alternative, dismissal. In addition, plaintiffs have also moved for certification as a class action. The Court is persuaded that a limited certification is appropriate and further, that the class is entitled to injunctive relief with respect to one portion of its motion for a preliminary injunction. The Court also finds that the defendants' motion for summary judgment or dismissal should be granted in all respects, except for the publication of Annex H and the indexing of Annexes C1, D & F. Before discussing the merits of the motions which the parties have filed, the Court briefly summarizes the background of this litigation.

I. BACKGROUND

 Plaintiffs, two nonprofit organizations and seven individuals, have instituted a three-pronged legal assault on the Discharge Review Boards of the various branches of the armed services. The individual plaintiffs consist of three currently enlisted members of the Armed Forces and four veterans, three of whom retain Undesirable Discharges and are eligible to apply to a Discharge Review Board for recharacterization. The fourth veteran retains a less than Honorable Discharge, having unsuccessfully applied for an upgrade. The organization plaintiffs, the National Association of Concerned Veterans ("NACV") and the National Military Discharge Review Project are devoted to advancing the interests and rights of veterans; as part of their activities, the organizations are concerned with the legal process surrounding the Discharge Review Boards. The defendants in this action are the Secretary of Defense, the Department of Defense and the Departments of the Army, Navy and Air Force.

 The Discharge Review Boards established by the various branches of the armed services are the focal point of this suit. Upon separation from active duty service, veterans may receive one of three types of administrative discharges: 1) Honorable; 2) General or Under Honorable Conditions ("General"); or 3) Undesirable or Under Other than Honorable Conditions ("Undesirable"). The administrative discharge program does not include punitive discharges Bad Conduct Discharges or Dishonorable Discharges which are imposed only as part of a special or general court-martial sentence following conviction. An individual holding either an Honorable or a General Discharge is eligible for all benefits under laws administered by the Veterans Administration. An Undesirable Discharge not only entitles a veteran to no benefits but also carries a serious stigma in civilian activities. Pursuant to 10 U.S.C. § 1553, each military department has established a Discharge Review Board ("DRB") with power to review, modify or correct administrative discharges. The DRB panels are comprised of five officers each and their decisions are subject to review and modification by the appropriate Secretary.

 Plaintiffs' seventeen-count complaint is divisible into three broad areas. First, in count I, plaintiffs assert that the various branches of the armed services have failed to comply with the mandate of 38 U.S.C. § 3103(e)(1). This provision states that changes in discharge status shall result in the accrual of veterans' benefits only when the DRB making the upgrade acts "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." Second, counts II through IV are brought essentially under the Freedom of Information Act, 5 U.S.C. §§ 552(a)(1) & (2); these counts seek to compel the publication or distribution of certain rules which the plaintiffs contend are generally applied throughout the discharge review process. Plaintiffs also demand that these rules be indexed and that all DRB applicants receive actual notice of their contents through the mail. Finally, counts V through XVII concern certain rulemaking petitions filed with the defendants pursuant to 5 U.S.C. § 553(e). Plaintiffs contend that, by law, the DRBs must not only apply these rules in their adjudications, but also issue them as part of a formal rulemaking proceeding. Accordingly, they seek to compel the defendants to publish and adopt the proposed rules.

 Plaintiffs have moved for a preliminary injunction with respect to counts II through IV, their claims under the Freedom of Information Act. Defendants have moved for summary judgment or, in the alternative, dismissal of all aspects of plaintiffs' complaint. Defendants also submit that the plaintiffs lack standing and do not merit class certification. The Court, however, is persuaded that some of the plaintiffs possess standing and further, that limited class certification is appropriate. The Court also grants in part plaintiffs' motion for a preliminary injunction. Defendants' motion for summary judgment or dismissal is granted with respect to plaintiffs' rulemaking petitions, and their claim under 38 U.S.C. § 3103, and several of their claims under the Freedom of Information Act.

 II. PRELIMINARY MATTERS

 A. Standing

 The Court finds that several of the individual plaintiffs possess standing to bring their claims under the Freedom of Information Act (counts II through IV demanding, inter alia, publication in the Federal Register) and the Administrative Procedure Act (counts V through XVII seeking adoption of proposed rules). However, the Court also concludes that this particular group of plaintiffs lacks standing to seek redress under 38 U.S.C. § 3103, the statute which requires the defendants to review discharges under "published uniform standards." The NACV, however, does possess standing to raise this issue. Accordingly, defendants' motion to dismiss for lack of standing is denied.

 1. Freedom of Information Act and Administrative Procedure Act Claims.

 Defendants' contention that plaintiffs lack standing to bring suit under both the Freedom of Information Act and the Administrative Procedure Act is easily resolved. In Natural Resources Defense Council, Inc. v. SEC, 196 U.S.App.D.C. 124, at 135, 606 F.2d 1031, at 1042 (D.C.Cir.1979), the court of appeals for this circuit held that owners of corporate shares who were interested in voting "in a financially prudent and ethically sound manner" had standing to seek to compel the SEC to conduct proceedings incident to their petitions for rulemaking under the Administrative Procedure Act. The court concluded, "Their interest was judicially cognizable, personal to them, and was arguably impaired by the lack of . . . information." Id., at 135, 606 F.2d at 1042. Here, three plaintiffs, Jamal Mahdi, Revis Hudson, and Reginald Dockett, retain Undesirable Discharges and thus are eligible to apply to the appropriate DRB for recharacterization. Both Mahdi and Hudson petitioned the Department of Defense to adopt the rules proposed in counts V through XVII and all three individuals are arguably harmed by the defendants' failure to adopt the proposed rules. Absent these purportedly mandatory reforms, their pursuit of a just result from a DRB would be seriously impaired. Thus, the injury which they have suffered could well be redressed by a favorable opinion from this Court; as a result, the exercise of the Court's remedial powers would not be gratuitous. See Simon v. Eastern Kentucky Welfare Rights Organization, 426 U.S. 26, 38, 96 S. Ct. 1917, 1924, 48 L. Ed. 2d 450 (1976). In sum, these individuals possess a personal stake in the outcome of the controversy sufficient to warrant the invocation of federal court jurisdiction. Warth v. Seldin, 422 U.S. 490, 498-99, 95 S. Ct. 2197, 2204-05, 45 L. Ed. 2d 343 (1975). Because these three individuals possess standing to bring the claims asserted in counts V through XVII of the complaint, the Court need not resolve the rights under article III of either the organization plaintiffs or the remaining individuals. Accordingly, defendants' motion to dismiss counts V through XVII for lack of standing shall be dismissed.

 Plaintiffs also have standing to bring their Freedom of Information Act claims. Indeed, the Court is unaware of any traditional standing requirement in such suits. Congress certainly possesses the power to clarify and define the rights of individuals under article III of the Constitution and it plainly intended that anyone could sue under the Act. Thus, the plaintiffs have standing to bring counts II through IV.

 2. Plaintiffs' Claim Under 38 U.S.C. § 3103.

 Count I of plaintiffs' complaint seeks redress under 38 U.S.C. § 3103(e)(1). This statute provides in pertinent part:

 
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 . . . .

 38 U.S.C. § 3103(e)(1)(A) (emphasis added). Essentially, plaintiffs assert that in each branch of the armed services, the discharge processes apply different standards. As a result, the percentages of Honorable, General and Undesirable Discharges vary widely from service to service, and even from year to year within a particular branch. Plaintiffs complain that the defendants have violated the "uniformity" requirement of section 3103(e)(1) because they have not promulgated rules stringent enough to force the DRBs to eliminate intra-service inconsistencies in the discharge process. In other words, plaintiffs contend that although Congress intended this statute to cure the inequity of intra-service discrepancies, the defendants have promulgated rules which are lax enough to maintain a status quo. Defendants submit that the nine plaintiffs lack standing to assert this claim. The Court is persuaded that the latter assertion is correct as to all but one of the plaintiffs.

 The National Military Discharge Review Project ("NMRDP") also lacks standing. First, this organization has no members and thus is unable to assert their interests. In addition, because it cannot apply to a DRB itself, it is incapable of suffering injury at the hands of a DRB. The National Association of Concerned Veterans ("NACV"), however, does possess standing to seek enforcement of 38 U.S.C. § 3103. The NACV has alleged that its membership includes veterans who have applied for a discharge upgrade and been refused. Among this group, there must surely be some individuals who would benefit from the elimination of the alleged inequity. In Warth v. Seldin, 422 U.S. 490, 511, 95 S. Ct. 2197, 2211-12, 45 L. Ed. 2d 343 (1975), the Supreme Court declared that an organization's complaint satisfies the requirements of article III when it alleges "that its members, or any one of them, are suffering immediate or threatened injury as a result of the challenged action of the sort that would make out a justiciable case had the members themselves brought suit." The NACV plainly meets this test. Accordingly, the Court grants defendants' motion to dismiss for lack of standing as to all plaintiffs except the NACV.

 B. Class Certification

 Plaintiffs seek to represent a class comprising all current service members, or their next of kin, who are (i) still eligible to apply to, or have an application pending before, a Military Discharge Review Board or (ii) still retain a less than Honorable Discharge and have been denied complete relief in the past. The Court is persuaded that for counts II through XVII, certification is proper for the first sub-class, but not for the second sub-class. Certification is inappropriate for count I, the claim under 38 U.S.C. § 3103(e)(1).

 1. Counts II through XVII: Freedom of Information Act and Administrative Procedure Act Claims.

 Plaintiffs' first sub-class consists of those who may, at some future date appear before a DRB. The former servicemen who retain less than Honorable Discharges certainly possess claims typical of this class of persons. The question of law raised by their complaints are virtually identical to those of other class members; moreover, the number of individuals concerned certainly satisfies the "numerosity" requirement. Accordingly, the Court shall certify plaintiffs' first proposed sub-class as a valid class under Federal Rule of Civil Procedure 23(b)(2).

 Plaintiffs' second proposed sub-class, however, falls short of the requirements of Rule 23. This class would consist of all service members, or their next of kin, who still retain less than Honorable Discharges and have been denied complete relief by a DRB in the past; the members of this class seek to enjoin future violations and also to benefit from the retroactive application of such injunctive relief. To the extent that members of this second group seek to prevent prospective violations of the laws governing DRBs, their claims are fully protected through the representation provided by the first sub-class. Thus, class certification in this area would be superfluous. Retroactive injunctive relief the opportunity to seek recharacterization of a discharge is not properly sought by this class for two reasons. First, the proposed class representatives do not possess claims which are representative of the class' claims. The only two parties offered as class representatives for this portion of plaintiffs' claims are Daniel Lampkins and the National Association of Concerned Veterans. Although Mr. Lampkins has received a denial of discharge recharacterization from a DRB, there is absolutely no proof that he would benefit from the retroactive application of the changes sought by the plaintiffs. Under the Freedom of Information Act, agency action pursuant to unpublished, albeit generally applicable, rules has no impact, except to the extent that the affected individual had actual notice of the rule. Here, there has been no allegation that any of the specific rules which plaintiffs seek to have published adversely affected Mr. Lampkins' DRB application. Nor has there been an allegation that he lacked actual knowledge of these rules. Yet, in order for members of the plaintiff class to recover under 5 U.S.C. § 552(a)(1), they would have to prove both causation and lack of knowledge. Mr. Lampkins is clearly not an adequate class representative because his complaint fails to allege these two vital elements.

 The National Association of Concerned Veterans ("NACV") is equally unfit to represent this proposed class. Because this organization cannot be a member of the proposed class, a fortiori, it cannot represent the class. The NACV is incapable of filing an application with a DRB, and thus, it may not state a valid claim for retroactive relief under the Freedom of Information Act. Here, the NACV is simply not "a person . . . adversely affected by a matter required to be published in the Federal Register and not so published." 5 U.S.C. § 552(a)(1) (1976) (emphasis added).

 In addition to their deficiencies under the typicality requirement of rule 23(a)(3), Mr. Lampkins and the NACV are also incapable of adequately protecting the interests of the class. The class which they seek to certify is full of divergent interests and there has been absolutely no showing that either Mr. Lampkins or the NACV neither of whom possess typical claims can represent this group. Accordingly, the Court finds plaintiffs' proposed sub-class also falls short of rule 23(a)(4), Fed.R.Civ.P.

 Although the Court has only addressed the inadequacies of the second proposed sub-class with respect to plaintiffs' Freedom of Information Act claims for retroactive relief, the Court's reservations are fully applicable to plaintiffs' claims under the Administrative Procedure Act. Again, there has been no showing that either the NACV or Mr. Lampkins were ever denied relief by a DRB as a result of the specific rules which the Department of Defense declined to adopt. Absent this sort of injury, neither party may have a valid claim for the retroactive injunctive relief sought by the class. Thus, plaintiffs are, again, inadequate class representatives and atypical of their proposed fellow claimants.

 To summarize, with respect to counts II through XVII, the proposed class shall be certified to the extent that it seeks injunctive relief capable of preventing future wrongs. Based on this complaint, however, the Court will not certify a class comprising individuals who seek to have their discharge recharacterization subject to further review by a DRB. ...


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