Application for stay and injunction pending appeal from the
Court of Appeals' order denying a stay pending appeal to that court
from the District Court's judgment for respondents in applicant's
action for injunctive relief against his discharge from the Navy
for sexual misconduct, is denied. The application does not clearly
indicate what grounds applicant would urge upon the Court of
Appeals in seeking reversal of the District Court's judgment, what
the transcript showed to support the administrative findings, or
what the law prescribes as to the standards of administrative and
judicial review of the proceedings leading to his discharge. Even
if applicant's claim on the merits were more comprehensible and
persuasive, he still failed to show the necessary irreparable
injury required for a mandatory injunction.
MR. JUSTICE REHNQUIST, Circuit Justice.
Applicant Peeples has presented me with what his attorney
denominates as "Application for Stay and Injunction Pending
Appeal," "pending appeal from an order of the United States Court
of Appeals for the Ninth Circuit denying him a stay pending appeal
to said court." Application 1. I have quoted verbatim from the
application in order to permit some insight into my firm conviction
that I have no idea as to what grounds applicant would urge upon
the Court of Appeals for the Ninth Circuit in seeking reversal of
the judgment of the United States District Court for the Northern
District of California. The application is a hodgepodge of
assertions as to the applicant's good character, his 19 years of
service in the United States Navy, and his participation in an
alcoholism therapy program.
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
Page 444 U. S. 1304
Ninth Circuit, should not have been considered; applicant also
states that he made "disclosures to his doctors of isolated
apparent incidents of off-duty off-base 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).
According to the application, applicant's chief convened an
Administrative Discharge Board, which heard the evidence obtained
during therapy and, over his protest, found him guilty of acts of
sexual misconduct and recommended 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.
Thereafter, still according to the application,
"[t]he District Court granted [respondents'] motion for summary
judgment and declined to rule on [applicant's] motion for a
preliminary injunction. A 10-day stay pending appeal to the Ninth
Circuit was granted by the trial court. On November 23, 1979, the
Ninth Circuit denied [applicant's] Emergency Motion for a stay and
injunction pending appeal, whereupon the instant motion was
filed."
Ibid. .
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
Page 444 U. S. 1305
more than likely destroy the successful alcohol rehabilitation
efforts to date."
Ibid.
Applicant's moving papers, though consisting of nine typewritten
pages, are remarkably skimpy in their reference to decisions of
this Court.
O'Callahan v. Parker, 395 U.
S. 258 (1969);
Vitarelli v. Seaton,
359 U. S. 535
(1959);
Harmon v. Brucker, 355 U.
S. 579 (195);
Service v. Dulles, 354 U.
S. 363 (1957); and
SEC v. Chenery Corp.,
332 U. S. 194
(1947), are the only cases cited, with no more than cryptic
allusions to their relevance to this case.
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,
415 U. S. 91
(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."
Since what applicant actually seeks is not a "stay" in any
orthodox sense of that term, but an injunction from me, a
Page 444 U. S. 1306
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.