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UNITED STATES COURT OF APPEALS TENTH CIRCUIT
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No. 03-1056
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2003.C10.0001312< http://www.versuslaw.com>
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December 18, 2003
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JEMEKIA BARBER, PLAINTIFF - APPELLANT,
v.
UNITED STATES ARMY;
THOMAS E. WHITE, IN HIS CAPACITY AS SECRETARY OF THE ARMY; GENERAL ERIC K.
SHINSEKI, IN HIS CAPACITY AS CHIEF OF STAFF OF THE ARMY; MAJOR GENERAL
ROBERT WILSON, IN HIS CAPACITY AS COMMANDER OF THE SEVENTH INFANTRY
DIVISION AND FORT CARSON, DEFENDANTS - APPELLEES.
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(D.C. No. 00-N-1022 (MJW)) (District of Colorado)
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Before Murphy, Porfilio, and Hartz, Circuit Judges.
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The opinion of the court was delivered by: John C. Porfilio, Senior
Circuit Judge.
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ORDER AND JUDGMENT *fn1
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In this appeal, a discharged female soldier attempts to challenge
portions of the anthrax vaccine program of the United States Army. She
does so, however, in the guise of an objection to the legality of her
discharge filed originally in the United States District Court for the
District of Colorado. Admitting she disobeyed a direct order and was
discharged under less than honorable conditions after asking for and
agreeing to a "Chapter 10 discharge," Ms. Barber contends the order she
disobeyed was illegal and deprived her of Constitutional rights. The
district court dismissed, and we affirm, although on grounds other than
failure to exhaust. Stillman v. Teachers Ins. & Annuity Assn. College
Ret. Eq. Fund, 343 F.3d 1311, 1321 (10th Cir. 2003) (we may affirm on any
ground supported by the record).
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While still in active service, Ms. Barber was ordered to receive an
anthrax vaccination in preparation for a transfer to Korea. She disobeyed
that order on the ground that the vaccination may not be safe for females
of child-bearing age. Ms. Barber's battalion commander preferred
court-martial charges against her for that disobedience. With the
assistance of counsel, Ms. Barber bargained for, and received, an
administrative discharge (Chapter 10 discharge) and thus avoided the court
martial proceedings.
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The application for Chapter 10 discharge submitted by Ms. Barber
recited that: (1) the request was made of her own free will; (2) she was
guilty of the charge against her (failing to obey a lawful order to
receive anthrax vaccination "which was her duty to obey"); (3) she had no
desire to perform further military service; (4) she understood if her
request was granted she may be ineligible for veterans benefits and "may
prejudice her in civilian life"; and (5) she "must apply to the Army
Discharge Review Board or the Army Board for Correction of Military
Records if [she] wish[ed] review of [her] discharge."
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The request for discharge was granted. Upon recommendation of the
Battalion commander, Ms. Barber received an "Other Than Honorable"
discharge. The commander believed that characterization was warranted
because "Barber was manipulative and premeditated in her conduct. She
seeks to benefit herself through her misbehavior."
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The instant action was filed in the district court one week after her
discharge was entered. Ms. Barber sought injunctive relief barring the
Army from finalizing her discharge as Other than Honorable, claiming the
order directing her to be immunized was unlawful, and she should not be
penalized for refusing to obey it. A preliminary injunction was denied on
grounds of lack of irreparable harm; potential harm to the Army was
greater than that to Ms. Barber; the injunction would be adverse to the
public interest; and failure to show likelihood of success.
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The district court later granted the government's motion to dismiss,
employing several grounds, one of which was failure to exhaust. Under
authority of Mindes v. Seaman, 453 F.2d 197 (5th Cir. 1971), the court
held Ms. Barber's claim was not justiciable because she failed to exhaust
her military remedies. She contends, however, the court erred in this
holding because after Darby v. Cisneros, 509 U.S. 137 (1993), exhaustion
of administrative remedies is no longer required as a condition to review
under the Administrative Procedures Act. The Army argues we do not have to
reach this issue because as part of her Chapter 10 discharge request, Ms.
Barber agreed she "must apply to the Army Discharge Review Board or the
Army Board of Correction of Military Records if I wish review of my
discharge." We agree. See Kowalczyk v. I.N.S., 245 F.3d 1143, 1149 (10th
Cir. 2001) (estoppel bars a party from taking a legal position
inconsistent with an earlier statement or action that prejudices her
adversary).
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Here Ms. Barber was able to avoid the consequences of a court martial
for her admitted disobedience, including possible incarceration, through
the vehicle of the Chapter 10 discharge. In consideration for that
benefit, she promised to limit any review of her discharge to certain
military review boards. Permitting her to avoid that promise would give
her relief not bargained for and would be patently prejudicial to the
Army. Moreover, it would allow Ms. Barber to reap the benefit of the
dismissal of charges without enforcing her promise of appealing to the
military review boards.
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Ms. Barber's counsel admits she could advance before either military
board her theory that the Army's anthrax vaccination program for women of
child-bearing age is unlawful. Counsel also admits there is no present
time impediment to seeking review before either board.
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Nonetheless, Ms. Barber argues she is not bound by the statement in
her Chapter 10 application. First, she maintains in the district court the
Army "acquiesced" to a court contest of her discharge. In support of that
contention, she cites page 13, note 8 of the Army's brief. That note, in
turn, cites page 411 of the Appellant's Appendix, quoting a partial
transcript made during the arguments on Ms. Barber's motion for
preliminary injunction. The only reference on that page even remotely
connected to an "acquiescence" is a statement by the Army's counsel that
the Army had agreed to stay the finality of the discharge until "June 1,
after the conclusion of the preliminary injunction hearing."
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Ms. Barber also asserts the Army "did not raise the claim of estoppel
during the preliminary injunction hearing." That assertion is also
unsupported by the record she cites. When the district court asked whether
it could theoretically order a change of a discharge on Constitutional
grounds, government counsel agreed. However, that colloquy did not take
place in the context of the statements Ms. Barber made in the Chapter 10
application, but in the context of discussing the court's jurisdiction in
general.
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Ms. Barber also maintains she has not waived the right to challenge
the anthrax policy arguing she made no knowing relinquishment of that
right. She argues the agreement she signed "does not mention federal
court." That argument is patently specious. She also claims she "expressly
reserved the right to challenge." We find no such statement in the
agreement.
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Finally, Ms. Barber asserts the military attorney who represented her
was not competent to provide counsel on her rights because the attorney
had a conflict of interest. But Ms. Barber has not presented us with any
inadequacies by her military attorney that would undermine our
determination that she is estopped from pursuing her claim in federal
court. We offer no opinion regarding whether the alleged conflict of
interest would justify relief by military review boards. Because of this
holding, we need not consider the other arguments raised by Ms.
Barber.
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AFFIRMED.
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Opinion Footnotes |
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*fn1 This order and judgment is not binding precedent,
except under the doctrines of law of the case, res judicata, and
collateral estoppel. This court generally disfavors the citation of orders
and judgments; nevertheless, an order and judgment may be cited under the
terms and conditions of 10th Cir. R. 36.3.
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