The opinion of the court was delivered by: THOMAS A. FLANNERY
This matter comes before the Court on the defendants' ("the government") motion to dismiss. The Court held an oral hearing on this motion on March 16, 1992. Upon careful consideration of the oral argument and the written briefs filed in this matter, for the reasons set forth below, the Court will grant the government's motion.
The plaintiffs in this suit are eight reserve officers presently or formerly serving in the United States Marine Corps. Each competed for, and subsequently accepted, an active duty position pursuant to the "Full-Time Service" ("FTS") program. FTS was established pursuant to 10 U.S.C. §§ 265 and 672(d), which authorize the Secretary of the Navy ("the Secretary") to assign reserve officers to active duty.
The active duty must be for a specified term of not more than five years. 10 U.S.C. § 679(a). The Secretary may specify the term by written agreement. A Reserve officer may be released from active duty during this term only under certain enumerated circumstances. Upon expiration of the term, it may be renewed.
Plaintiffs Allen, Horne, Lyman, and Mantis claim that they have been improperly denied promotion opportunities. They seek to have their cases submitted to a special promotion selection board.
Plaintiffs Dowds, Dau, Slone, and Beland
The government argues that the Court lacks jurisdiction over Plaintiffs Dowds, Dau, Slone, and Beland because they have failed to exhaust their administrative remedies. The Board for the Correction of Naval Records ("BCNR" or "the Board") was established to correct errors and remove injustices from the record of a serviceman. 10 U.S.C. § 1552. Subject to certain exceptions, "an aggrieved military officer must first exhaust his administrative remedies before his particular service's Board for Correction of Military Records prior to litigating his claims in a federal court." Knehans v. Alexander, 566 F.2d 312, 315 (D.C. Cir. 1977), cert. denied, 435 U.S. 995 (1978). The government argues that Dowds, Dau, Slone, and Beland have not brought the claims asserted in this action before the BCNR, which could grant them the relief that they seek here; therefore, the government contends that this Court does not presently have jurisdiction to decide their claims.
Plaintiffs Dowds, Dau, Slone, and Beland argue that they have exhausted their administrative remedies. They argue that the Secretary's failure to renew their FTS status is final agency action appealable to this Court.
Specifically, Plaintiffs argue that they did not need to go to the BCNR in order to exhaust their administrative remedies. Plaintiffs Dowds, Dau, Slone, and Beland state that in 1987, a change was made in the FTS program. By directive, the Secretary ordered that lieutenant colonels with fewer than ten years on active duty and colonels with fewer than fifteen years on active duty would not be retained in the FTS program when their FTS term under the agreements then in effect expired. This change in policy -- a final agency action -- resulted in the agreements of Plaintiffs Dowds, Dau, Slone, and Beland not being renewed. The year after these plaintiffs left the FTS, the plaintiffs assert, the Secretary rescinded the change and returned to the previous system.
The plaintiffs argue that the 1987 change was final agency action, and therefore, no further pursuit of agency action is required. Further, they argue, that the question of whether administrative remedies have been exhausted is not a jurisdictional question, but rather, a question for judicial discretion. Thus, the plaintiffs argue that this issue cannot support a motion to dismiss. Even if the government were correct that further administrative relief were available and that Plaintiffs were required to pursue it, this Court could remand to the administrative body while retaining jurisdiction over this case.
The BCNR is a supplementary remedy available to military personnel. The plaintiffs take the position that the pursuit of this supplementary remedy is not a necessary prerequisite to final agency action. See Hayes v. Secretary of Defense, 515 F.2d 668, 675 (D.C. Cir. 1975); Ogden v. Zuckert, 296 F.2d 312 (D.C. Cir. 1961). The plaintiffs dismiss the counter-authority cited by the government, Knehans, supra, that a plaintiff must seek relief before the BCNR to exhaust his administrative remedies, as "pure dicta."
The plaintiffs also distinguish Bois v. Marsh, 801 F.2d 462 (D.C. Cir. 1986), upon which the government relies. Bois is inapposite, the plaintiffs argue, because in that case, the plaintiff had raised a new issue for the first time at a judicial proceeding. Having previously not raised the issue in any administrative setting, the court ruled that the plaintiff had not exhausted her administrative remedies. This case is different because an adverse ruling was made by the Secretary on the very issue on which judicial relief is now being sought.
Plaintiff Dowds argues that he has exhausted his administrative remedies even without having sought relief from the Board. Rather than immediately seeking judicial relief from the denial of his request to renew his FTS status based on the 1987 directive of the Secretary, Plaintiff Dowds sought relief from "a whole series of senior officers up the chain of command," eventually obtaining adverse rulings from the Commandant of the Marine Corps and, finally, the Secretary. Plaintiffs' Opposition at 13, citing Dowds' Affidavit.
Dowds argues that obtaining a ruling from the Secretary constitutes exhaustion of administrative remedies. He relies on several district court opinions, outside of this circuit. For example, Dowds cites Nicholson v. Rumsfeld, 425 F. Supp. 782 (N.D. Tex. 1977), rev'd on other grds, Nicholson v. Brown, 599 F.2d 639 (5th Cir. 1979). In that case, the district court ruled that having obtained an unfavorable ruling from the Secretary of the Air Force, the plaintiff could seek judicial relief without first going to the military board since the board's decision would not have been binding on the secretary.
Dowds argues that the Secretary could have refused to make a ruling in his case until having received a recommendation from the BCNR. The Secretary chose, however, to make a ruling. His ruling is no less final because he chose to make it without first obtaining the advice of the BCNR.
Plaintiffs Dau, Slone, and Beland
These plaintiffs acknowledge that, unlike Dowds, they have not pursued rulings all the way up the chain of command to the Secretary. While implicitly conceding that they have not, therefore, exhausted their administrative remedies, they argue that they are excused from doing so. They note that there is an exception to the exhaustion doctrine when further pursuit of administrative remedies would be futile. See, e.g., Kawatt v. United States, 842 F.2d 951, 953 (7th Cir. 1985). Dau, Slone, and Beland argue that once the Secretary denied Dowds' identical claim, it became futile for them to pursue administrative relief for their claims.
Remedies Must Be Exhausted
The first issue is whether Dowds, Dau, Slone, and Beland were required to exhaust their administrative remedies before pursuing judicial relief. Plaintiffs rely heavily on Ogden in their argument that they were not. Ogden has been considerably narrowed by subsequent case law in this circuit.
Plaintiffs fail to acknowledge the distinction drawn in subsequent cases between efforts to end or avoid military service and efforts to be reinstated into military service. In the former, courts have been less willing to require pursuit of remedies from a military board because during the delay that this causes, the plaintiff is in the military, possibly unlawfully. Thus, the harm caused by the delay can be irreparable. In a situation like the one presented here, however, where the claim is for unlawful exclusion from the military or improper denial of promotion, the delay can be compensated by awarding backpay, seniority, etc. Thus, in this kind of a case, where the delay is less prejudicial, i.e., the damages suffered are not irreparable, courts have required pursuit of remedies within the military. In these cases, the courts' reluctance to interfere with internal military affairs has been paramount.
More than thirty years ago, the Ogden court held, over the dissent of then-Judge Burger, that pursuit of relief from a military board is not "a condition to finality of the Secretary's action." Ogden, 298 F.2d at 315. The court stated that a decision by the military board might be desirable and the district court may want to remand the issue to that body, but the district court could, in its discretion, retain jurisdiction.
In Hayes, fourteen years after Ogden, a plaintiff sought his discharge from the army. A unanimous panel noted language from a post-Ogden opinion which seemed to call into question Ogden's holding by "implying that generally an application to the Board is a necessary prerequisite to federal judicial review." Hayes, 515 F.2d at 674, citing Sohm v. Fowler, 365 F.2d 915 (D.C. Cir. 1966). The Hayes court found it unnecessary, however, to address whether Ogden was still good law. Ogden had involved a person disputing his discharge, not a person seeking one. The Hayes court noted that where a person's request to be discharged from the military was at stake, "the delay attendant upon a petition to the Board for Correction of Military Records would significantly increase the length of his involuntary servitude without judicial review." Id. at 674-75. Therefore, the court concluded "that once having ...