was "insufficient evidence of error or injustice to warrant any corrective action."
Having received this unfavorable decision, Neal amended his complaint and now challenges the refusal to permit him to reenlist on several grounds. First, he contends that the EPB recommendation was invalid because the Board failed to comply with prescribed regulations and procedures, and because no subsequent action taken by the Corps was sufficient to cure these errors. Second, he claims that the EPB decision and the BCNR failure to correct it were so arbitrary and capricious as to constitute an abuse of agency discretion. Finally, Neal contends that the regulations and procedures governing both Boards do not comport with the requirements of procedural due process, and that as a result defendants' actions violated his constitutional rights. To remedy these alleged violations, Neal seeks orders directing that he be reenlisted in the Marine Corps as of the date of the expiration of his prior term of enlistment, that all documents pertaining to the decision to bar his reenlistment be destroyed or sealed, and that he be accorded backpay and retroactive promotions.
Defendants as a preliminary matter, and in light of the changes in the posture of the case since the time of its inception, challenge our subject matter jurisdiction. Second, they deny that there were any irregularities in the EPB proceedings or that either Board acted arbitrarily in Neal's case. Third, they urge that the Commandant's decision was a discretionary one which we have only very limited power to review. Finally, defendants contend that the Commandant's denial of permission to reenlist impinged upon no liberty or property interest of Neal's, and that without any such interest the constitutional requirements of procedural due process do not apply. Alternatively, defendants argue that to the extent that those requirements do apply, they were followed in Neal's case.
As will appear from the discussion which follows, we hold that defendants' actions with respect to Neal comported with all applicable statutes and regulations and that they were within the bounds of agency discretion. We also hold that Neal had no protectible property or liberty interest in reenlisting, so that defendants' actions did not implicate any of his Fifth Amendment due process rights. However, before discussing the substance of the parties' contentions and several underlying issues, we must first describe more fully the factual background.
II. The Facts and Procedural History of the Case
Neal enlisted in the Marine Corps on May 18, 1960, and served on active duty until he was honorably discharged on December 23, 1974. It is undisputed that his overall service record was "above average to excellent," and particularly outstanding during his last four years of service. See EPB transcript. He served in Cuba in the early 1960s, and was decorated for his actions during two tours of duty in combat in Viet Nam. He also received the Good Conduct Medal on four occasions for conduct denoting "honesty and faithful service in keeping with the highest traditions of the Marine Corps."
The Corps' recognition of the high quality of Neal's performance was manifested not only through various awards and consistently high efficiency ratings, but also through his promotion to the rank of gunnery sergeant (E-7) in July of 1973 and his appointment to recruiting duty in February of 1974 which, in the words of the Commandant, "(was) in itself evidence that (Neal's) record (was) one of the Corps' finest. See Correspondence of February 18, 1974 to Neal from C. W. Hoffman, by direction of the Commandant. Each of these actions in recognition of Neal's service might have required an extension of Neal's enlistment; the recruiting duty would have been for a period in excess of his current enlistment term, and in connection with his promotion, the Corps required him to execute an agreement to reenlist for a period of two years at the end of his current enlistment term.
On May 15, 1974, with his term of enlistment due to expire in several months, Neal submitted a routine request for reenlistment. Pursuant to standard Marine Corps procedure, Neal's request was referred to the EPB, which was charged with the responsibility of reviewing and making recommendations on all such requests.
On August 22, 1974, Neal's Commanding General received a letter from the office of the Commandant, advising him that Neal's request had been referred to the EPB, and directing him: (1) to inform Neal of the likelihood that in conjunction with its review of his request, the EPB would consider two reports by the Naval Investigative Service ("NIS") dated 9/18/72 and 1/8/74 respectively, which were contained in Neal's file; (2) to inform Neal that the EPB would consider any written statement by Neal concerning these reports, provided that it was forwarded to Headquarters prior to September 11, 1974; and (3) to have Neal evaluated by a psychiatrist to determine his fitness for continued service. Accordingly, Neal was informed that the EPB would consider two NIS reports in his files and that he could submit his own statement regarding the incidents covered by those reports. However, both Neal's and his Commanding Officer's efforts on Neal's behalf to obtain more information concerning the contents of the NIS reports were unavailing. Neal nevertheless did write a statement for submission to the EPB, and it was forwarded along with the requested psychiatric evaluation.
On October 16, 1974 the EPB convened to consider Neal's reenlistment request. The following materials were presented to the Board for its consideration: (1) Neal's official Enlisted Personnel File; (2) NIS investigative reports showing: (a) that in 1970 Neal had been interviewed concerning his knowledge of suspected homosexual activity on the part of another Marine; (b) that in 1972, while Neal was stationed in Okinawa, there was a brief investigation into allegations by another Marine that Neal had made homosexual advances toward him, but that the investigation was soon dropped; and (c) that in 1974, acting on a complaint by a young man, California police had arrested Neal for assault with a deadly weapon, sodomy, and sexual perversion involving oral copulation, but that the charges were subsequently dismissed when the alleged victim failed to appear for trial;
(3) Neal's reenlistment request and the accompanying endorsement of his Commanding Officer; (4) a copy of a psychiatric evaluation of Neal by Dr. R. Aitken, finding him fit for further duty, with no sign of thought disorder; (5) Neal's own written statement concerning the Okinawa and California incidents which were the subjects of the NIS reports;
and (6) the Precept for the EPB. See Exhibit 1 to Defendants' Motion to Dismiss or for Summary Judgment (affidavit of Col. William E. Riley, Jr.). Neal did not appear personally before the Board, nor were any other witnesses heard.
The EPB, finding that Neal's personal conduct over the previous five years had been "prejudicial to the Marine Corps and not in keeping with the high standards expected of staff noncommissioned officers," recommended against reenlistment, and on November 12, 1974 the Commandant approved this recommendation. On November 20, 1974 Neal was so advised by letter, and on December 23, 1974 he was discharged from the Corps with an honorable discharge, and with a reenlistment code of RE-3C.
On June 11, 1976, after receiving copies of his personal record and "releasable NIS reports,"
Neal, through his attorney, petitioned the BCNR for correction of his records. Specifically, he asked the Board to alter his assigned code so as to enable him to reenlist. On June 24, 1976 the BCNR declined to exercise jurisdiction over Neal's case, stating that it was without authority to review or change reenlistment codes. Neal then instituted this lawsuit on October 26, 1976 to compel the BCNR to consider his case, and on March 17, 1977 the Board reversed its previous position and agreed to do so.
A panel of 3 members of the BCNR met on April 4, 1978 to consider Neal's application. Documentary material before the Board included Neal's application and his counsel's brief in support thereof, the EPB precept and transcript, Neal's Marine Corps record, and several advisory opinions which had been solicited by the Board, responding to the legal issues raised by Neal's counsel.
In a 2-1 decision the BCNR decided to deny Neal's application without a hearing,
and Neal was so informed by letter the following day. In that letter, the Board advised Neal that the determination whether or not an individual meets reenlistment standards was a matter peculiarly within the cognizance of the Commandant. The majority of the Board was of the view that in Neal's case the Commandant's approval of the EPB recommendation was proper "on the basis of the finding that (Neal's) overall service record cast doubt on (his) eligibility for continued service, based on the implied risk of continued involvement with military and civilian authorities and associated discredit to the Marine Corps." The majority further found that Neal had no right to appear before the EPB, no right to cross-examine witnesses against him, no right to counsel to assist him in preparing for the EPB, and that he suffered no substantial prejudice as a result of not being shown the 2 (sic) NIS reports considered by the EPB in its December (sic) 16, 1974 proceedings.
The majority also found that Neal was aware of the general nature of the NIS investigations, and that the EPB had considered his written statement on the matters covered by those investigations.
The dissenting Board member found a procedural error warranting corrective action, in that the NIS reports contributed to the Board's recommendation, thus making it improper for the Board to have considered these reports without first giving Neal the opportunity to examine and make comment on them. Accordingly, he recommended partial relief, to the extent that another EPB be convened to determine whether or not Neal should be reenlisted, and that Neal be given the opportunity to appear before the Board with counsel.
Having received an unfavorable decision from the BCNR, Neal once again sought the aid of this court, this time in an amended complaint in which he attacked the procedures used to deny him permission to reenlist as violative of prescribed regulations and of his constitutional rights.
It is the issues raised in that complaint which form the basis for motions that are now before us, and it is those issues to which we turn for discussion.
The first disputed issue before us is whether we have subject matter jurisdiction over Neal's claims. In his amended complaint, Neal sets forth numerous statutory provisions which he claims confer subject matter jurisdiction on this court, only two of which merit serious consideration: the federal question statute, 28 U.S.C. § 1331 (1976), and the mandamus statute, 28 U.S.C. § 1361 (1976).
Because we believe that we have federal question jurisdiction pursuant to § 1331 we will focus our discussion on that jurisdictional font, without reaching any question of the scope of our mandamus jurisdiction.
The Government contends that while Neal's amended complaint may well raise questions "(arising) under the Constitution, laws, or treaties of the United States," § 1331 alone will not support jurisdiction in this court because it does not contain the requisite waiver of sovereign immunity. Quoting from Dugan v. Rank, 372 U.S. 609, 620, 83 S. Ct. 999, 10 L. Ed. 2d 15 (1963) the Government argues that although Neal's suit is nominally against federal officers, it is in fact against the United States because a judgment in Neal's favor would "interfere with the public administration," " "restrain the Government from acting, or to compel it to act,' " and " "expend itself on the public treasury or domain.' " Specifically, the Government notes that Neal seeks both an order compelling broad-ranging governmental action and a monetary judgment from the public treasury in the form of judicially authorized backpay. According to the Government, it is precisely this kind of suit which is barred by the doctrine of sovereign immunity, irrespective of the substantiality of any federal question raised by the complaint.
The legal principles which define the contours of the doctrine of sovereign immunity are far from clear. The cases do support the Government's position that as a general rule, a suit against a public official in his official capacity is treated as if it were brought directly against the government, See Hawaii v. Gordon, 373 U.S. 57, 83 S. Ct. 1052, 10 L. Ed. 2d 191 (1973),
and that immunity bars a suit which will interfere with the public administration or affect the public treasury. See Dugan v. Rank, supra. There are, however, exceptions to this general rule. Sovereign immunity is not a bar if the public official is acting in excess of his authority, or if his authority is unconstitutional or is being exercised in an unconstitutional manner. See Dugan v. Rank, supra 372 U.S. at 621-22, 83 S. Ct. 999; Larson v. Domestic & Foreign Commerce Corp., 337 U.S. 682, 689-91, 69 S. Ct. 1457, 93 L. Ed. 1628 (1949).
It is clear from the allegations of Neal's amended complaint that he is attempting to overcome the sovereign immunity bar by fitting within the above-described exceptions to the general rule. The complaint is replete with allegations that the defendants acted beyond their authority (E.g. by failing to follow their own regulations and by rendering a decision for which there was no basis in fact) and that they violated Neal's constitutional rights (E.g. by failing to accord him procedural due process before the EPB). It is also evident, though, that a determination of the sovereign immunity issue thus posed requires a decision on the ultimate questions in the suit. Other courts have resolved this seemingly circular problem of how to avoid deciding the merits of a case under the guise of a jurisdictional determination by adopting a procedure of accepting at face value, for jurisdictional purposes only, the averments of the complaint, unless they are so insubstantial or frivolous as to afford no conceivable basis for jurisdiction. See, e.g., Carter v. Seamans, 411 F.2d 767 (5th Cir. 1969), Cert. denied, 397 U.S. 941, 90 S. Ct. 953, 25 L. Ed. 2d 121 (1970); Cf. Mattern v. Weinberger, 519 F.2d 150 (3d Cir. 1975), Vacated and remanded on other grounds sub nom. Mathews v. Mattern, 425 U.S. 987, 96 S. Ct. 2196, 48 L. Ed. 2d 812 (1976) (where jurisdiction is alleged pursuant to the mandamus statute, the fact that the existence of a duty on the part of the defendant only becomes clear after consideration of the merits of the case does not deprive the court of mandamus jurisdiction; any other approach would lead to an "oddly circular result." Id. at 157).
Employing this procedure in the instant case and accepting as true the averments of the complaint for jurisdictional purposes only, we must reject defendants' sovereign immunity claim. Neal alleges in his amended complaint that the defendants violated his Fifth Amendment due process rights by, Inter alia, considering untrustworthy hearsay statements as evidence against him while denying him the right to even see those statements, denying him the right to consult with counsel to prepare a defense against then-unknown charges against him, denying him the right to representation before the EPB, and denying him the right to confront adverse witnesses. P 14. Neal further alleges that the defendants failed to follow their own regulations by ignoring the prescribed guidelines and standards for barring reenlistment. P 14. These allegations are neither insubstantial nor frivolous; rather, they raise serious questions as to whether the defendants have acted in excess of their authority or whether their authority is unconstitutional or was exercised in an unconstitutional manner in Neal's case. Accordingly, Neal's allegations are sufficient to overcome defendants' sovereign immunity defense.
Even if we were to determine that the allegations of Neal's complaint are not sufficient to bring the case within the exception to the sovereign immunity doctrine, we would nevertheless reject defendants' sovereign immunity claim because we believe that Congress has waived immunity to some of Neal's claims by statute. We find precedent for this proposition in the recent Third Circuit decision of Jaffee v. United States, 592 F.2d 712 (3d Cir.), Cert. denied, -- - U.S. -- , 99 S. Ct. 2406, 60 L. Ed. 2d 1066 (1979). There the court held that the 1976 Amendments to § 702 of the Administrative Procedure Act ("APA"), 5 U.S.C. § 702 (1976), reflect a Congressional intent to waive sovereign immunity under some circumstances. This section now provides, in pertinent part:
A person suffering legal wrong because of agency action, or adversely affected or aggrieved by agency action within the meaning of a relevant statute, is entitled to judicial review thereof. An action in a court of the United States seeking relief other than money damages and stating a claim that an agency or an officer or employee thereof acted or failed to act in an official capacity or under color of legal authority shall not be dismissed nor relief therein be denied on the ground that it is against the United States or that the United States is an indispensable party . . . Nothing herein (1) affects other limitations on judicial review or the power or duty of the court to dismiss any action or deny relief on any other appropriate legal or equitable ground . . ..