Roland W. Peeples, Applicant v. Harold Brown, Secretary of Defense No. A-452, 444 U.S. 1303 (1979)
Roland W. Peeples, Applicant v. Harold Brown, Secretary of Defense No. A-452, 444 U.S. 1303 (1979)
Roland W. Peeples, Applicant v. Harold Brown, Secretary of Defense No. A-452, 444 U.S. 1303 (1979)
1303
100 S.Ct. 381
62 L.Ed.2d 300
Applicant complains at one point in the application, id., at 3, that some of the
evidence considered by the Administrative Discharge Board related to a prior
enlistment and, under a precedent decided by the Court of Appeals for the
Ninth Circuit, should not have been considered; applicant also states that he
made "disclosures to his doctors of isolated apparent incidents of off-duty offbase homosexual behavior while severely intoxicated," ibid., although on the
same page of the application he alleges that "[a]ll of the examining Navy
doctors and alcohol counselors stated that he was not homosexual." Ibid.
(emphasis in original).
his discharge. He then appealed his discharge to the Secretary of the Navy, who
denied the appeal without "any basis in fact or written explanation, and ordered
his immediate discharge within 5 working days, whereupon he sought
injunctive relief from the United States District Court for the Northern District
of California." Id., at 4. Respondents agreed that applicant would be retained in
the service at Treasure Island, Cal., pending the hearing of the preliminary
injunction; meanwhile, according to applicant, his request for discovery under
the Freedom of Information Act, 5 U.S.C. 552, was objected to "and the
District Court below refused to rule on Appellant's motion to compel."
Application 5.
4
Applicant urges that he will suffer irreparable injury because he has 19 years of
time in the service, because he will be stigmatized by discharge for sexual
misconduct, because he will lose flight time, and because "[s]uch a traumatic
rejection by the government to whom he has given loyal service could more
than likely destroy the successful alcohol rehabilitation efforts to date." Ibid.
Applicant makes no effort to indicate what the less than verbatim transcript
before the Administrative Discharge Board indicated by way of support for the
findings of that Board, or what the law prescribes as the standard of review for
the Secretary of the Navy in reviewing the action of the Administrative
Discharge Board. Applicant's moving papers even fail to identify either the
standard of review of the United States District Court or that of the United
States Court of Appeals for the Ninth Circuit in reviewing the action of the
District Court unfavorable to applicant. In short, I am presented with what
applicant's attorney undoubtedly feels is an appealing set of facts, but with
virtually no law to accompany them. If either the District Court or the Court of
Appeals gave any explanation for their conclusion in the form of an opinion or
memorandum order, applicant has not seen fit to attach them to his application
here. Even if applicant's claim on the merits were more comprehensible and
persuasive, in my judgment he would still have failed to show the necessary
irreparable injury required for a mandatory injunction. As this Court noted in
Sampson v. Murray, 415 U.S. 61, 91, 94 S.Ct. 937, 953, 39 L.Ed.2d 166
(1974), the legislative history of the Back Pay Act, 5 U.S.C. 5596, "suggests
that Congress contemplated that [that Act] would be the usual, if not the
exclusive, remedy for wrongful discharge."
8
Since what applicant actually seeks is not a "stay" in any orthodox sense of that
term, but an injunction from me, a single Justice of the Supreme Court of the
United States, forbidding the carrying out of the judgment of the
Administrative Discharge Board, the Secretary of the Navy, the District Court,
and the Court of Appeals for the Ninth Circuit, he labors under a heavy burden
indeed. In my opinion, he has not met that burden, and his application is
accordingly
Denied.