Hartikka v. United States

J. BLAINE ANDERSON, Circuit Judge: The Air Force appeals the district court’s issuance of a preliminary injunction. It contends that the district judge based his ruling on the application of an erroneous legal standard. Specifically, appellants argue that the standard enunciated in Sampson v. Murray, 415 U.S. 61, 94 S.Ct. 937, 39 L.Ed.2d 166 (1974), governs cases where military personnel seek preliminary injunctive relief prohibiting a discharge. We agree and hold that the district court’s judgment must be reversed and its order vacated, BACKGROUND The appellee, Dale M. Hartikka, is a captain in the United States Air Force. With the exception of a three-year period in which he served in the Air Force Reserve, Hartikka has continuously served as a pilot with the Air Force since entering active duty as a commissioned officer on January 3, 1978. On March 8, 1983, an Air Force Board of Inquiry was convened to consider certain charges of drunk and disorderly conduct against Hartikka. Following a hearing on the charges, Hartikka was found, on two occasions, too intoxicated to perform his duties and, on a third occasion, he was found to have wrongfully discharged a semi-automatic weapon in the direction of a neighbor’s house while highly intoxicated. The Board recommended that Hartikka be discharged for committing these acts. The Secretary of the Air Force followed this recommendation and approved a discharge “under honorable conditions (general).” Such a discharge is “[appropriate when a member’s military record is not sufficiently meritorious to warrant an honorable characterization.” 32 C.F.R. § 41.9(a)(2). Hartikka immediately applied for administrative review of the Secretary’s decision with the Air Force Board for Correction of Military Records. He also filed a complaint in United States District Court seeking injunctive and declaratory relief, alleging certain procedural irregularities in the processing of his discharge. The district court granted Hartikka’s motion for preliminary injunction, finding that he had “demonstrated that he has a fair chance on the merits of his claim” and that “[t]he balance of hardships tips sharply in [Hartikka’s] favor.” E.R. at 4-5 (emphasis added). — 1518 — On appeal, the sole issue is whether the district court erred in issuing the preliminary injunction, thereby prohibiting the Air Force from discharging appellee, pending administrative review of Hartikka’s discharge. DISCUSSION The grant of a preliminary injunction will be reversed where the district court has abused its discretion or based its decision on an erroneous legal standard or on clearly erroneous findings of fact. Sierra On-Line, Inc. v. Phoenix Software, Inc., 739 F.2d 1415, 1421 (9th Cir.1984). The crucial inquiry in this matter concerns the appropriate standard for granting injunctive relief. “ ‘The critical element in determining the test to be applied is the relative hardship to the parties.’ ” Id. (citing Benda v. Grand Lodge of the International Association of Machinists, 584 F.2d 308, 315 (9th Cir.1978), cert. denied, 441 U.S. 937, 99 S.Ct. 2065, 60 L.Ed.2d 667 (1979)). The usual standard, applied by the district court, requires that the moving party show either (l)' a combination of probable success on the merits and the possibility of irreparable injury, or (2) that serious questions are raised and the balance of hardships tips sharply in favor of the moving party. See, e.g., William Inglis & Sons Baking Co. v. I.T.T. Continental Baking Co., Inc., 526 F.2d 86, 88 (9th Cir.1975). Application of the standard enunciated by the Supreme Court in Sampson would, however, require that the moving party make a much stronger showing of irreparable harm than the ordinary standard for injunctive relief. 415 U.S. at 84, 91-92 n. 68, 94 S.Ct. at 950, 953-954 n. 68. That is, where the balance of harm tips less decidedly toward a plaintiff, he must make a greater showing of a likelihood of success on the merits than where the balance tips decidedly in his favor. Benda v. Grand Lodge, supra, 584 F.2d at 315. The necessity of making this stronger showing is implicit in the magnitude of the interests weighing against judicial interference in the internal affairs of the armed forces. See, e.g., Sampson, 415 U.S. at 83-84, 94 S.Ct. at 949-950, and Orloff v. Willoughby, 345 U.S. 83, 93-94, 73 S.Ct. 534, 539-540, 97 L.Ed. 842 (1953). While we realize that the rule in Sampson concerned the rights of civilian employees, we agree that it should also be applied to military personnel. See Chilcott v. Orr, 747 F.2d 29, 32-34 (1st Cir.1984). See also, Peeples v. Brown, 444 U.S. 1303, 1305, 100 S.Ct. 381, 383, 62 L.Ed.2d 300 (1979). Consequently, we conclude that the district court erred in application of the traditional standard for injunctive relief. We next examine whether Hartikka has demonstrated sufficient irreparable injury to satisfy the test. Although the Sampson court did not specify what type of irreparable injury would satisfy its higher standard, it indicated that the circumstances must be “genuinely extraordinary”; that is, they must be a “far departure] from the normal situation” of employment discharge. Sampson, supra, 415 U.S., at 91-92 and n. 68, 94 S.Ct. at 953-954 and n. 68. Hartikka’s claims of irreparable injury are based on assertions of loss of income, loss of retirement and relocation pay, and damage to his reputation resulting from the stigma attaching to a less than honorable discharge. ER at 84-85. Our review leads us to conclude that these alleged injuries are insufficient under the Sampson standard to justify injunctive relief. The loss of income, the ensuing collateral effects thereof, and the possibility of stigma are “external factors common to most discharged employees and not attributable to any unusual actions relating to the discharge itself [and] will not support a finding of irreparable injury, however severely they may affect a particular individual.” Sampson, 415 U.S. at 92 n. 68, 94 S.Ct. at 953 n. 68. CONCLUSION For the foregoing reasons, the judgment of the district court, granting preliminary injunctive relief, is — 1519 — REVERSED and its order VACATED