Wilt v. Gilmore , 62 F. App'x 484 ( 2003 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
JOHN R. WILT, 
Plaintiff-Appellant,
v.
JAMES STEWART GILMORE, Governor
of Virginia; CLAUDE WILLIAMS,
Major General, the Adjutant
General of Virginia; CARROLL  No. 02-1117
THACKSTON, the Major General, the
former Adjutant General of
Virginia; THE VIRGINIA ARMY
NATIONAL GUARD; RICHARD BOPP,
Lieutenant Colonel, Army National
Guard; ELMER J. MASON, Colonel,
Defendants-Appellees.

Appeal from the United States District Court
for the Eastern District of Virginia, at Richmond.
James R. Spencer, District Judge.
(CA-01-408-3)
Argued: January 23, 2003
Decided: April 10, 2003
Before WILLIAMS and MOTZ, Circuit Judges, and
HAMILTON, Senior Circuit Judge.
Affirmed in part, reversed in part, and remanded with instructions by
unpublished per curiam opinion.
2 WILT v. GILMORE
COUNSEL
ARGUED: William Gilbert Shields, Sr., WILLIAM SHIELDS &
ASSOCIATES, Richmond, Virginia, for Appellant. Captain Steven
Douglas Bryant, Litigation Division, Military Personnel Branch,
UNITED STATES ARMY, Arlington, Virginia, for Appellees. ON
BRIEF: LTC Tara A. Osborne, Captain Toby D. McCoy, Litigation
Division, Military Personnel Branch, UNITED STATES ARMY,
Arlington, Virginia; Paul J. McNulty, United States Attorney, Debra
J. Prillaman, Assistant United States Attorney, Richmond, Virginia;
Jerry W. Kilgore, Attorney General of Virginia, Guy Winston Hors-
ley, Senior Assistant Attorney General, James C. Stuchell, Assistant
Attorney General, OFFICE OF THE ATTORNEY GENERAL, Rich-
mond, Virginia, for Appellees.
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
OPINION
PER CURIAM:
John Wilt, formerly a Captain in the Virginia Army National Guard
(the Guard), appeals from the district court’s order dismissing his
claim under 42 U.S.C.A. § 2000d (West 1994), granting summary
judgment to the defendants on his claim under the Administrative
Procedure Act (APA), 5 U.S.C.A. § 702 et seq. (West 1996), and
denying his "motion to correct administrative record." We affirm the
district court’s dismissal of Wilt’s claims under § 2000d, reverse its
award of summary judgment to the Guard on his APA claim, and
remand with instructions that the APA claim be dismissed without
prejudice.
I.
Wilt was a full-time employee of the Guard as a counter-drug oper-
ations officer, and was also the commander of a special forces opera-
WILT v. GILMORE 3
tional detachment. In 1997, Wilt provided information to Guard
officials investigating a complaint of racial discrimination by a fellow
guardsman, Master Sergeant Kenneth Vance, a black non-
commissioned officer under Wilt’s command. Wilt told investigators
that black guardsmen were the subject of racial discrimination within
the Guard. At around the same time, Wilt also gave information to the
Army Task Force on Extremist Activity, which was investigating the
level of racist and extremist activity within the United States military.
At least three separate investigations were subsequently initiated
that involved Wilt in one way or another. Two of the investigations
were initiated pursuant to Army Regulation (AR) 15-6. The first of
these concerned an incident in which 40 pounds of C-4 explosive
were allegedly mislaid or disappeared while under Wilt’s supervision.
The second investigation under AR 15-6 was an investigation into
Vance’s death from a heart attack during a physical fitness test.
Although this investigation did not focus on Wilt, he had been one of
the officers present when the test was conducted. Finally, the Inspec-
tor General of the Army initiated a separate investigation into the
incident involving the C-4.
In May of 1997, Wilt was relieved of his duties as a counter-drug
operations officer and assigned to work with the Chief of Staff of the
Guard, Colonel James Holden. Wilt’s new job allegedly consisted of
"doing menial clerical work." (J.A. at 12.) After his reassignment,
Holden ordered Wilt not to attend an annual two-week training, which
resulted in Wilt’s parachute-jump qualification lapsing.
In September or October of 1997, Wilt received two official Letters
of Reprimand. (J.A. at 43-44.) One of these letters charged Wilt with
negligence and inappropriate handling of munitions in the C-4 inci-
dent; the other charged him with negligence in Vance’s death. In
December of 1997, Wilt was again reassigned, returning to his origi-
nal job as a counter-drug operations officer. In January of 1998, Wilt
was removed as the commander of his special forces detachment and
reassigned to an infantry battalion.
In March of 1998, the Inspector General concluded its investigation
of Wilt. General Thackston initiated an action to strip Wilt of his
commission, citing the C-4 incident, disrespect of a superior officer,
4 WILT v. GILMORE
then Major Richard Bopp, and excessive use of alcohol and drinking
with subordinates. On April 4, 2000, a "Withdrawal of Federal Rec-
ognition Board" was convened, and after a hearing, it recommended
that Wilt be stripped of his commission. The Board’s recommenda-
tion was subsequently adopted by the National Guard Bureau, and
Wilt was stripped of his military commission.
II.
On July 11, 2001, Wilt filed a three-count civil action in the United
States District Court for the Eastern District of Virginia.1 He alleged
violations of Title VI of the Civil Rights Act of 1964, 42 U.S.C.A.
§ 2000d (Count I), the APA, 5 U.S.C.A. § 702 et seq. (Count II), and
42 U.S.C.A. § 1985 (West 1994) (Count III). In a separate "Reme-
dies" section of his complaint, Wilt requested several forms of relief.
First, he sought a writ of mandamus requiring the "Adjutant General
of Virginia and all those persons acting in concert or cooperation with
him to enforce and implement their own regulations." (J.A. at 18.)
Second, he sought a wide-ranging order requiring the Appellees to
rescind the Federal Recognition Board’s action of April 4, 2000, to
note officially in his military record that the Letters of Reprimand he
received were without foundation, to rescind the adverse efficiency
report for the period August 1, 1996, through July 31, 1997, and to
"cleanse" his military record of "any and all detrimental material that
has accumulated there since December 1, 1996." (J.A. at 18-19.)
Third, Wilt sought a permanent injunction prohibiting the defendants
from interfering with his exercise of his constitutional rights. Finally,
1
Wilt named as defendants in his complaint James Gilmore, then Gov-
ernor of Virginia, Major General Claude Williams, then Adjutant Gen-
eral of Virginia, Major General (retired) Carroll Thackston, former
Adjutant General of Virginia, the Guard, Lieutenant Colonel Richard
Bopp, Colonel Elmer J. Mason, John Ashcroft, Attorney General of the
United States, and Kenneth J. Melson, U.S. Attorney for Virginia. After
Appellees filed their answer in the district court, Wilt voluntarily dis-
missed his claims under § 2000d against the federal defendants and his
claims under § 1985 against all defendants. In addition, the district court
granted the federal defendants’ uncontested motion to dismiss Attorney
General Ashcroft and Melson as defendants. Those defendants against
whom this action proceeded, Appellees here, shall be referred to simply
as "Appellees."
WILT v. GILMORE 5
Wilt sought compensatory damages in the amount of $2,500,000,
punitive damages in the amount of $5,000,000, plus costs and attor-
neys’ fees.2
Appellees moved to dismiss Wilt’s claims in the district court, or
in the alternative, for summary judgment. The district court granted
the motion to dismiss as to Wilt’s § 2000d claims, and granted sum-
mary judgment to Appellees on the APA claim. The district court also
denied Wilt’s earlier-filed motion to correct the administrative record.
This appeal followed.
III.
On appeal, Wilt challenges both the district court’s dismissal of his
§ 2000d claims and its grant of summary judgment to Appellees on
his APA claims. We address these contentions in turn.
A.
The district court concluded that Wilt’s claims under § 2000d were
nonjusticiable because he had not presented them to the Army Board
for Correction of Military Records (ABCMR), and accordingly dis-
missed them. See 10 U.S.C.A. § 1552(a) (establishing the ABCMR
and authorizing it to "correct an error or remove an injustice" in a mil-
itary record). In Williams v. Wilson, 762 F.2d 357 (4th Cir. 1985), this
court adopted a widely accepted test for determining whether a fed-
eral court should review an internal military decision. A service mem-
ber seeking to sue the military over an internal military decision must
demonstrate two things: "‘(a) an allegation of the deprivation of a
constitutional right, or an allegation that the military has acted in vio-
lation of applicable statutes or its own regulations, and (b) exhaustion
of available intraservice corrective measures.’" Id. at 359 (quoting
Mindes v. Seaman, 453 F.2d 197 (5th Cir. 1971)). Thus, in Williams,
2
Wilt did not specify in his complaint which forms of relief he sought
for which of the three counts in the complaint. In its order and memoran-
dum opinion dismissing Wilt’s § 2000d claims and granting summary
judgment to Appellees on his APA claims, the district court assumed that
Wilt sought each of the remedies he identified as to each count of his
complaint. We make the same assumption.
6 WILT v. GILMORE
we concluded that a service member who sought to challenge
National Guard proceedings that reviewed whether he should be
involuntarily separated from the West Virginia National Guard was
subject to the requirement that he exhaust his claim in the ABCMR;
absent exhaustion of intraservice remedies, the claim presented "a
nonjusticiable military controversy." Id. at 360; see also Guerra v.
Scruggs, 942 F.2d 270, 277 (4th Cir. 1991) (noting that exhaustion of
ABCMR remedies is required before a service member may proceed
in federal court against the military).
Wilt admits that he has not exhausted his claims for injunctive
relief before the ABCMR. He contends, nevertheless, that he should
not be required to exhaust the remedies available to him in the
ABCMR because to do so would be futile — he will not, he contends
(without substantial elaboration), be able to achieve a satisfactory
result in the ABCMR. However, Wilt concedes in his brief that his
claim is currently pending before the ABCMR. We decline to pre-
sume that the ABCMR will not properly evaluate Wilt’s claims.
Wilt also asserts that because the ABCMR does not have the power
to grant damages, his claims should not be subject to the requirement
that he exhaust intraservice remedies. We addressed similar conten-
tions in both Williams and Guerra, both cases in which some, but not
all, of the relief sought could be granted by the ABCMR. In Guerra,
we noted that "the [ABCMR]’s inability to grant the plaintiff full
relief [is] not dispositive on the issue of exhaustion." Guerra, 942
F.2d at 277. Rather, we held that where "the consequences of delay
for [the service member] — postponement of his ability to obtain
damages" — were "outweighed by the considerations of efficiency
and agency expertise," exhaustion of intraservice remedies should be
required. Id. Here, as in Guerra, the consequences of delay for Wilt
are outweighed by considerations of efficiency and agency expertise.
Accordingly, we affirm the district court’s dismissal of those claims
as nonjusticiable.3
3
In Williams, we made clear that the proper course for a court consid-
ering claims that are nonjusticiable because intraservice remedies have
not been exhausted is to dismiss without prejudice. See Williams, 762
F.2d at 360 ("The proper course of action for the district court would
WILT v. GILMORE 7
B.
The district court granted summary judgment to Appellees on
Wilt’s APA claim, in which he alleged that the Federal Recognition
Board failed to follow National Guard regulations before and during
his hearing. See 5 U.S.C.A. § 706(2) (authorizing federal courts to set
aside agency action not in compliance with procedure required by
law). In Williams, we agreed with the First Circuit that "‘[t]he
ABCMR is better equipped than the courts’" to resolve a claim that
a selective retention board failed to follow National Guard regula-
tions, Williams, 762 F.2d at 360 (quoting Navas v. Vales, 752 F.2d
765, 769 (1st Cir. 1985), and thus, that exhaustion of intraservice
remedies was required. Wilt argues, however, that the Supreme
Court’s decision in Darby v. Cisneros, 509 U.S. 137, 146-47, 153-54
(1999) (holding that plaintiffs are not required to exhaust administra-
tive remedies before seeking review under the APA where no statute
or agency rule requires exhaustion before judicial review) indicates
that he need not exhaust his ABCMR remedies prior to bringing his
APA claim in federal court. We conclude that we need not address
Darby’s impact (if any) on our rule requiring exhaustion of military
remedies. Because Wilt has a claim pending before the ABCMR, on
which a result favorable to him could render his APA claim largely
moot, consideration of the claim in federal court at this point would
be imprudent. We therefore reverse the award of summary judgment
to Appellees and remand with instructions to dismiss Wilt’s APA
claim without prejudice.4
have been to dismiss Williams’ claim without prejudice as premature.").
Although the district court did not specify whether it dismissed with or
without prejudice to Wilt’s ability to refile his claims after exhausting his
ABCMR remedies, we assume, in line with our precedent, that the dis-
missal was without prejudice.
In addition to addressing the exhaustion bar to Wilt’s claims, the dis-
trict court concluded that Wilt’s claims for monetary damages were
barred by the doctrine of intramilitary immunity. See generally Feres v.
United States, 340 U.S. 135 (1950). Because we affirm the district
court’s dismissal of Wilt’s claims, we decline to address whether
intramilitary immunity bars any of Wilt’s claims.
4
In light of our direction that Wilt’s APA claim be dismissed without
prejudice, and because the issue may not be relevant in any related sub-
sequent proceedings, we do not address the district court’s denial of
Wilt’s motion to correct the administrative record.
8 WILT v. GILMORE
IV.
For the reasons stated above, the district court’s dismissal of Wilt’s
claims pursuant to § 2000d is affirmed. The district court’s award of
summary judgment to Appellees on the APA claims is reversed and
remanded with instructions to dismiss those claims without prejudice.
AFFIRMED IN PART, REVERSED IN PART,
AND REMANDED WITH INSTRUCTIONS