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09/12/86 Captain Joyce L. Bois, v. John O. Marsh

September 12, 1986




Before: WALD, Chief Judge, SCALIA and STARR, Circuit Judges.


Appeals from the United States District Court for the District of Columbia (Civil Action No. 80-01030)


Opinion for the Court filed by Circuit Judge STARR.

Opinion concurring in part and dissenting in part filed by Chief Judge WALD.

STARR, Circuit Judge: The consolidated cases before us were instituted by Joyce L. Bois, formerly an active member in the United States Army. An audiologist, Bois alleges that she was severely hampered in her efforts to pursue an Army career by the discriminatory conduct of one of her superiors, Colonel Sedge, and other Army personnel. In a multi-count complaint, Bois asserted claims for declaratory and equitable relief based on alleged violations of due process and equal protection. She also asserted statutory and common-law damage claims against Colonel Sedge in his individual capacity.

The District Court dismissed all claims. *fn1 After careful review, we conclude that Bois's non-monetary claims are unfit for judicial review at this time. We also hold that her claims for damages were properly dismissed on the merits. I

In 1977, Bois was commissioned as a First Lieutenant in the Medical Service Corps. After basic training, she was assigned to the Army Audiology and Speech Center ("Center") at Walter Reed Army Medical Center ("Walter Reed").The Center was supervised by Colonel Sedge. According to the allegations in Bois's complaint, which we accept as true for purposes of our decision, Colonel Sedge harbored animus against women who had chosen to become Army audiologists. As a result, Sedge deliberately failed to provide Bois with sufficient time or training for her adequately to orient herself to her duties. He also subjected her to unwarranted verbal abuse, calling her competence unfairly into question. Soon after Bois arrived at the Center, Sedge ordered her to cease serving as an audiologist and to assume instead a secretarial-receptionist post in the Center's Administrative Section. Eventually, Sedge threatened to have Bois discharged from the Army if she did not either resign or request a transfer to a different line of work.

Bois filed a complaint of sex discrimination with the Chief of Walter Reed's Equal Opportunity Office, Major Beale. Major Beale promptly investigated Bois's allegations. His findings support Bois's claims against Sedge. As relevant here, he found (1) that Bois's reassignment as a secretary-receptionist was the result of "sexism," (2) that Bois had been "programmed to fail," and (3) that Bois had not been given an equal opportunity to succeed in her career. Joint Appendix at 224-26. *fn2 In short, the report concluded that Bois had been the victim of discrimination. Id. Major Beale recommended that Bois be reassigned to another facility for a more objective evaluation of her competency, or that she be reclassified as an administrator at Walter Reed. Id. at 226-27. *fn3

While Major Beale was conducting his investigation, Bois was transferred to the Ear, Nose and Throat Clinic at Walter Reed, away from the supervision of Colonel Sedge. After a few days, however, she was ordered to return to the Center for a 30-day evaluation by Sedge and others. At the beginning of Bois's evaluation program, Sedge formally proposed that she be dismissed from the Army, again on the ground of her failure to inform the Army that she had not yet received her master's degree when she began work as an audiologist. At the end of this evaluation, Bois was given an administrative assignment elsewhere at Walter Reed.

Colonel Sedge's campaign against Bois continued unabated. On July 31, 1978, he prepared a written proposal to dismiss Bois from the Army. J.A. at 238. In August 1978, he participated in the preparation of a highly unfavorable "Officer Efficiency Report ." Bois's immediate supervisor, Captain Kramer, was personally and directly involved in both of those actions.

Soon thereafter, however, Captain Kramer filed a statement with the Hospital's Inspector General, alleging that Sedge had pressured him into making false statements in connection with both the recommended dismissal and the OER. Kramer further accused Sedge of actively plotting to ruin Bois's career, and of harboring a discriminatory attitude toward Army women in general and toward Bois in particular. Kramer also recanted the disparaging statements he had made about Bois's performance. J.A. at 257-59.

In the wake of these developments, Bois appealed to the next highest officer in her chain of command, Walter Reed's Commander, Major General George Baker. In this appeal, she made five requests: (1) that the evaluation for her trial period be altered to compensate for Sedge's bias; (2) that she be reassigned to another installation for completion of her clinical fellowship; (3) that her Army tour of duty be extended by one year to permit her to gain more experience as an audiologist; (4) that the Army disapprove Sedge's proposals to remove or reclassify her; and (5) that the "flagged" status of her service record, which effectively prevented commendations, promotions, and further schooling, be lifted. J.A. at 279-80. In response, General Baker informed Bois that he had instructed Sedge to withdraw Bois's adverse OER and to submit a new one; that Sedge's discharge action against her had been withdraw; and that the "flagging" action would be purged from her record. Two months later, in accordance with her request for reassignment, Bois was transferred to Fort Hood, Texas, where she served as an audiologist. Her performance there was rated as "outstanding." J.A. at 292.

In November 1978, Bois appealed to the Secretary of the Army, contending that the relief granted by General Baker was inadequate. She also complained that the Army's EEO system was inadequate because it did not provide for independent investigations, open hearings with an opportunity for testing of evidence, or written statements of findings. J.A. at 281-82. After further investigations by the Inspector General of the Health Services Command (which has supervisory responsibility for Walter Reed), the Deputy Assistant Secretary of the Army responded to Bois's appeal, (1) stating that the relief granted by General Baker was adequate, and (2) declining Bois's suggested panoply of procedures to be followed in EEO cases on the ground that, in the Army's experience, "grievances can be more expeditiously resolved within the chain of command." J.A. at 289.

Just before the expiration of her three-year tour of active duty, Bois applied for a transfer to one of the other military branches, but was told that no positions were available. Bois maintains that this denial was also the result of continued discrimination directed against her. Bois left the Army on January 8, 1981, two months after the expiration of her regular tour of duty. II

Bois's amended complaint set forth nine counts, three of which are no longer at issue. Of the six counts presently before us, one involved a due process challenge to the Army's grievance procedures. Two counts asserted that Bois had been discriminated against in violation of equal protection guarantees, executive orders and Army regulations. Three counts represented damages claims against Colonel Sedge in his individual capacity, one of which was for conspiracy to deprive Bois of her civil rights in violation of 42 U.S.C. ยง 1985(3),4 with the remaining two based on common-law tort theories of interference with prospective advantage and intentional infliction of emotional distress. We first examine Bois's request that the Army be required to grant greater procedural rights to uniformed members who complain of unlawful discrimination.

Bois has mounted a sweeping constitutional attack against the Army's grievance procedures. Yet Bois stands in the civil courts as a civilian seeking reform of military procedures to which she is no longer subject. She has voluntarily resigned from the Army and has asserted no intention of returning to active duty.5 Rather than seeking reinstatement, she represents only that "she [could] still have an interest in making the Army a career" if the procedures of which she complains were changed. J.A. at 306. According to the Army's undisputed assertion, Bois has no present dealings with the Army and from its standpoint will not have a relationship with her in the future unless the Army calls her up for active duty, which could occur only in the event of a national emergency. See Army Brief at 11-12. Because Bois has nothing to gain from the equitable relief she seeks, her claim is moot. See, e.g., Craig v. Boren, 429 U.S. 190, 192, 97 S. Ct. 451, 50 L. Ed. 2d 397 (1976).6

The District Court nonetheless held that Bois's claim for equitable relief was justiciable, concluding that this case calls within the narrow exception to mootness for cases "capable of repetition, yet evading review." The trial court reasoned that "dismissal of cases such as this . . . could result in a denial of many service members of the right to challenge the constitutionality" of the Army's procedures. J.A. at 307. We disagree. Under the governing test as set forth in Weinstein v. Bradford, 423 U.S. 147, 149, 46 L. Ed. 2d 350, 96 S. Ct. 347 (1975), the "capable of repetition" exception to mootness applies when two specific conditions are met: "(1) the challenged action was in its duration too short to be fully litigated prior to its cessation or expiration, and (2) there was a reasonable expectation that the same complaining party would be subjected to the same action again." Although the District Court properly concluded that the first condition had been satisfied, it failed even to address the second. Analyzing this latter component of the Weinstein v. Bradford test, we can discern no "reasonable expectation" that Bois will be affected by the Army's grievance procedures again. As in the Rhodes Tavern case, Grano v. Barry, 236 U.S. App. D.C. 72, 733 F.2d 164 (D.C. Cir. 1984), there are in this case "too many variables to allow a prediction that appellantwill again be subjected to action of this sort." Id. at 167. With respect to Bois, these variables include the likelihood that she will re-enter active service in the Army (either by re-enlisting or by being called up for active duty) and the likelihood that she would again have occasion to employ the challenged procedures if she were to return. The likelihood that these contingencies will occur is too remote to justify judicial review at this time. III

We turn next to Bois's request for a declaratory judgment that the Army violated her due process and equal protection rights under the Fifth Amendment and applicable executive orders and Army regulations. Bois apparently believes that, although she left military life, a judicial determination that she was discriminated against in the Army and denied a fair opportunity for redress would improve "her professional reputation and career opportunities" in the civilian sector. J.A. at 30 (Second Amended Complaint p95). She concedes, however, that the only negative evaluation ever included in her military record was voluntarily withdrawn by the Army in response to her charge of discrimination and replaced with an OER that gave her a virtually perfect score. Bois nevertheless contends that judicial relief is necessary to rebut the negative ...

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