BARD v. SEAMANS, 507 F.2d 765 (10th Cir. 1974)

CHARLES W. BARD, PLAINTIFF-APPELLANT, v. ROBERT C. SEAMANS, SECRETARY OF THE AIR FORCE, AND MAJOR GENERAL ALTON D. SLAY, COMMANDING GENERAL, LOWRY AIR FORCE BASE, DEFENDANTS-APPELLEES.

No. 74-1016.United States Court of Appeals, Tenth Circuit.Argued July 12, 1974.
Decided December 9, 1974.

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Russell W. Bartels, Denver, Colo., for plaintiff-appellant.

James L. Treece, U.S. Atty., Denver, Colo. (Lt. Col. Wayne E. Robinson, Office of Staff Judge Advocate, Lowry AFB, Colo., of counsel, on the brief) for defendants-appellees.

Appeal from the United States District Court for the District of Colorado.

Before HILL, SETH and HOLLOWAY, Circuit Judges.

HOLLOWAY, Circuit Judge.

[1] Charles W. Bard appeals from the district court’s dismissal of his suit seeking to have his military discharge declared void and expunged for failure of Air Force personnel to follow regulations in handling the discharge. Bard was separated from the Air Force in 1963, and although he was given an honorable discharge at that time, he was officially processed under Air Force Regulation (AFR) 39-16, “Discharge for Unsuitability.” Bard’s records reflect this qualification of the discharge and he claims injury from the nature of the discharge which he must present to potential employers.

[2] Bard brought his suit on March 30, 1973, for a declaratory judgment that his 1963 discharge instruments on Department of Defense forms 256 and 214 are void, for an order that they be expunged from his records, and for other relief.[1] Among other things he alleged that he sought a hardship discharge in December, 1962; that this application was arbitrarily disapproved on the day submitted, without opportunity for a hearing and without being properly processed; and that on December 31, 1962, he was served notice that a discharge was being recommended under Sec B AFR 39-16. He further averred that he was wrongfully informed that the discharge recommended was “honorable;” that none of the interviews conducted were at a time when he realized he was being examined concerning a discharge for unsuitability; that he never received a true psychiatric or other type of medical examination required for an evaluation of his suitability; and that his discharge was not properly authorized. For these and other reasons he claimed that the discharge and instruments issued were void, and he averred that he had exhausted administrative remedies without being afforded relief.

[3] Prior to answering Bard’s complaint the government appellees moved to dismiss or for summary judgment on the following grounds; (1) lack of subject matter jurisdiction; (2) failure to state a claim on which relief could be granted; (3) statute of limitations and laches, and (4) failure to exhaust his administrative remedies. At a hearing on the motion, at which both sides offered evidence outside the pleadings, the court

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ruled in favor of the appellees on several grounds, not mentioning laches however, and granted the motion.[2] A written dismissal was subsequently entered.

[4] Bard argues that the district court erred as to all grounds for its judgment, and that we should also rule on the merits of his claim, grant summary judgment in his behalf and declare his discharge void. For reasons that follow we conclude that the court had jurisdiction of the subject matter under the Administrative Procedure Act, but affirm the dismissal for lack of exhaustion of administrative remedies, modifying the disposition to one of dismissal on that ground alone.

[5] Subject Matter Jurisdiction
[6] Bard’s complaint alleged that the “cause of action . . . arises under Regulations adopted by the Secretary of the Air Force. . . . Relief in the case is sought under 28 U.S.C.A. § 2201.” The government attacked the jurisdictional allegations, claiming that section 2201 confers no subject matter jurisdiction on the federal courts and that it is insufficient to support plaintiff’s complaint. The trial court stated it agreed with this proposition and later upheld the challenge to jurisdiction, not specifying the ground of the ruling.

[7] We agree that the Declaratory Judgment Act provisions in 28 U.S.C.A. § 2201 confer no additional subject matter jurisdiction on the federal courts and that some statute affording jurisdiction must apply to support a declaratory judgment. Skelly Oil Co. v. Phillips Petroleum Co., 339 U.S. 667, 70 S.Ct. 876, 94 L.Ed. 1194. Moreover, federal courts are of limited jurisdiction and there is no presumption in favor of subject matter jurisdiction. See Turner v. The President, Directors and Company of the Bank of North America, 4 Dall. (4 U.S.) 7, 11, 1 L.Ed. 718. Bard asserts that “any court, at any time . . . has jurisdiction to extend a remedy to a violation of a constitutional right. . . .”[3] We need not, however, analyze this broad assertion or the applicability of various jurisdictional statutes relating to constitutional claims. We are satisfied that the allegations made present a case within jurisdiction conferred by the Administrative Procedure Act, 5 U.S.C.A. § 701 et seq.

[8] We feel the allegations in substance claim that plaintiff is suffering legal wrong because of agency action, or is adversely affected or aggrieved by agency action within the meaning of a relevant statute, and that he is entitled

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to judicial review.[4] Section 702. We are persuaded that the APA, through §§ 702-704, affords jurisdiction. See Rusk v. Cort, 369 U.S. 367, 82 S.Ct. 787, 7 L.Ed.2d 809; Brennan v. Udall, 251 F. Supp. 12, 14 (D.Colo.), aff’d., 379 F.2d 803 (10th Cir.), cert. denied, 389 U.S. 975, 88 S.Ct. 477, 19 L.Ed.2d 468.[5] The only question in Rusk
was jurisdiction, see 369 U.S. at 370, 82 S.Ct. 787, and we feel that recognition of a jurisdictional grant was clear.[6]
See Toilet Goods Association v. Gardner, 360 F.2d 677, 679 n. 1 (2d Cir.), aff’d., 387 U.S. 158, 87 S.Ct. 1520, 18 L.Ed.2d 697; K. Davis, Administrative Law Treatise § 23.02 (1970 Supp.); but see State Highway Commission of Missouri v. Volpe, 479 F.2d 1099, 1105 n. 7 (8th Cir.); Getty Oil Co. v. Ruckelshaus, 467 F.2d 349, 356 (3d Cir.), cert. denied 409 U.S. 1125, 93 S.Ct. 937, 35 L.Ed.2d 256.

[9] The APA has not been alleged or argued as a basis of jurisdiction. Averment of a jurisdictional statute, however, is not required. It is sufficient that the operative facts pleaded bring the case within the court’s jurisdiction. Beeler v. United States, 338 F.2d 687, 689 (3d Cir.); see Rule 8(a), F.R.Civ.P. Since we feel that the averments here come within jurisdiction conferred by the APA, we must disagree with the trial court’s ruling that subject matter jurisdiction was lacking.

[10] Exhaustion of Administrative Remedies
[11] Bard argues that the exhaustion requirement does not apply where one seeks to declare an instrument void on a constitutional ruling. And he contends that, in any event, he has exhausted all administrative remedies. We must disagree with both his contentions.

[12] Turning first to the latter argument Bard claims to have sought relief from the Discharge Review Board, the General Accounting Office, the Department of the Air Force, and the Office of the Adjutant General, and that all of these bodies denied relief.

[13] The record reveals that Bard has previously made demands for back pay, based on the allegedly invalid discharge, to the Claims Division, Department of the Air Force, Randolph Air Force Base, Texas, and to the Comptroller General of the United States, General Accounting Office (GAO), Washington, D.C. The fate of the first claim is not clear although it apparently was forwarded to the Air Force Accounting Finance Center in Denver and then sent back to Randolph Air Force Base, to the attention of either the Air Force Board for Correction of Military Records or the Discharge Review Board.[7] Nothing else appears from the record.

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[14] The GAO evidently forwarded the second claim to the Adjutant General of the Air Force, who then apparently submitted it to the Air Force Judge Advocate General’s office. This office finally made a determination, concluding that Bard had been properly discharged and that his claim was without merit. Later the GAO also replied to Bard, indicating that it did not have the authority to correct military records and referring him back to the Air Force.[8]

[15] Although Bard has made these previous administrative appeals,[9] he has failed to avail himself of the administrative machinery specifically provided by Congress for the purpose of reviewing and correcting military discharges. See 10 U.S.C.A. § 1552. Pursuant to § 1552 the Air Force has established its Board for Correction of Military Records (BCMR), see 32 C.F.R. § 865.1, et seq., and the courts have required that plaintiffs resort to such boards before obtaining judicial relief. See Nelson v. Miller, 373 F.2d 474 (3d Cir.), cert. denied, 387 U.S. 924, 87 S.Ct. 2042, 18 L.Ed.2d 980; Sohm v. Fowler, 124 U.S.App.D.C. 382, 365 F.2d 915. We therefore believe that a strong policy exists that demands resort to the BCMR unless to do so would be futile.

[16] We feel that Bard did not allege, nor demonstrate in the matters offered in the summary judgment procedures, that he had sufficiently presented his case to the BCMR.[10] The Board is empowered to correct any military record of the department when it considers it necessary to correct an error or remove an injustice. See 10 U.S.C.A. § 1552(a). It may hold hearings on appeals brought to it, although this is not a matter of right. 32 C.F.R. § 865.7. If a hearing is held, the BCMR will make written findings, decisions and recommendations, 32 C.F.R. § 865.12. As we read the applicable statute and regulations, we believe that the BCMR has the power to afford Bard the relief that he seeks.[11]

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[17] As stated, Bard also argues that exhaustion is not required since administrative boards cannot declare a discharge void for constitutional defects. However, there is no indication in the statutes or regulations that the Board cannot determine that a discharge, and the administrative action underlying it, was in violation of regulations. In fact, we feel the language looks the other way. The power of the BCMR to consider even constitutional defects is implicit in Ashe v. McNamara, 355 F.2d 277 (1st Cir.) and subsequent cases. See also, Smith v. McNamara, 395 F.2d 896
(10th Cir.), cert. denied, 394 U.S. 934, 89 S.Ct. 1211, 22 L.Ed.2d 466. Moreover, if the Board can grant Bard the relief he seeks, which we feel it can, it is an adequate remedy, regardless of the ground on which it acts. A constitutional defect is not required to invalidate military action for failure to follow applicable regulations. See Cason v. United States, 471 F.2d 1225, 1230, 200 Ct.Cl. 424; Geiger v. Brown, 136 U.S.App.D.C. 132, 419 F.2d 714, 717-718.

[18] For these reasons we conclude that Bard has not demonstrated exhaustion of available military remedies. Although exhaustion is not an inflexible requirement, see McKart v. United States, 395 U.S. 185, 89 S.Ct. 1657, 23 L.Ed.2d 194; Gilchrist v. United States, 430 F.2d 631 (10th Cir.), its logic is usually compelling, and we find it to be so in these circumstances.

[19] Accordingly, we hold that the trial court erred in ruling that subject matter jurisdiction was lacking, there being proper jurisdiction under the Administrative Procedure Act, and that the rulings on failure to establish any claim for relief and limitations need not have been reached. We further hold that the court properly dismissed the action since available administrative remedies have not been exhausted. The judgment of dismissal is modified to provide that the dismissal is without prejudice to further proper administrative proceedings and is granted on said ground alone. As modified, the judgment is affirmed.

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