author: JACKSON, District Judge.

text:
    Clarence E. WALKER, Jr., Plaintiff, v. Caspar W. WEINBERGER, et al., Defendants.
    Civ. A. No. 83-3160.
    United States District Court, District of Columbia.
    Jan. 14, 1985.

      Alan Steele-Nicholson, Steptoe & Johnson, Washington, D.C., for plaintiff.
    Wayne Williams, Asst. U.S. Atty., Washington, D.C., for defendants.
   MEMORANDUM AND ORDER

JACKSON, District Judge.

Plaintiff Clarence E. Walker, Jr., a recovered (or recovering) alcoholic, brings this handicap discrimination suit and simultaneous Merit Systems Protection Board (“MSPB”) appeal against his former employer, the U.S. Department of Defense, and the Secretary of Defense, for reinstatement and back pay to redress his allegedly wrongful dismissal, effective July 3, 1981, as a WG-4 printed-materials “packer” for the Defense Printing Service (“DPS”) located at the Washington Navy Yard.

Walker claims that DPS discriminated against him as a handicapped employee in violation of section 501 of the Rehabilitation Act of 1973, as amended, 29 U.S.C. § 791, and the Comprehensive Alcohol Abuse and Alcoholism Prevention, Treatment, and Rehabilitation Act of 1970 (“Alcohol Rehabilitation Act”), 42 U.S.C. § 290dd, in failing to accord him a reasonable accommodation of his alcoholism by cumulating a series of unauthorized absences antedating his treatment for, and concededly resulting from, his alcohol abuse with others occurring thereafter to justify a disciplinary dismissal for which neither group alone would have been sufficient. His MSPB appeal presses his contention that the MSPB upheld an agency decision, i.e., his dismissal, which originated in one or more personnel practices prohibited under 5 U.S.C. § 2302(b), and, in consequence, the MSPB’s findings and conclusions must be deemed arbitrary and capricious, or otherwise not in accordance with law. 5 U.S.C. § 7703(c)(3). Specifically, Walker asserts that DPS dismissed him because he was an alcoholic, such action being unlawful discrimination against one with a handicapping condition under 5 U.S.C. § 2302(b)(1)(D), and that the dismissal was instigated by a supervisor in reprisal for his revelations of the supervisor’s abuse of authority, likewise a practice prohibited by 5 U.S.C. § 2302(b)(8)(A)(ii).

The matter is now before the Court on defendants’ motion to dismiss or for summary judgment and plaintiff’s cross-motion for judgment on the pleadings. Sufficient facts appear from the MSPB record and the pleadings to be without dispute for the purpose of the disposition made of the motions hereby, and for the reasons hereinafter set forth the Court will deny defendants’ motion, grant the plaintiff’s motion in part, and remand the case to the MSPB for reconsideration in accordance herewith.

I.

Walker began work for DPS in 1978. His transgressions against the agency’s leave policy began approximately a year later, consisting for the most part of absences without leave (“AWOL”). He was disciplined with progressive severity on three occasions for a series of violations preceding each before receiving a “notice of proposed removal” on October 1, 1980. Walker then revealed to DPS that he was an alcoholic, and the agency relented, reducing his removal to a ten-day suspension and allowing him to be hospitalized under a government alcohol counselling and assistance program. Walker states, and defendants affirm, that alcohol ceased to be the cause of any of his work-related problems thereafter.

Approximately three months after his treatment concluded Walker was again charged with six additional violations of agency leave policy which culminated in his actual removal on July 3, 1981. He appealed to the MSPB on July 23, 1981. The MSPB official who presided at the hearing dismissed two charges — a February 4, 1981, AWOL and an April 13, 1981, “disobedience to constituted authority” — as not sustained by the evidence, and she reduced another charge of 54 minutes’ AWOL to 15 minutes. The three remaining AWOLs were found to have been proved as charged, but, believing the penalty of removal to be “unduly harsh” given the relatively trivial nature of the offenses, the presiding official reduced the penalty to a 30-day suspension. The Board disagreed with her, however, and reinstated DPS’ decision to remove. Expressly adverting to, and adding, Walker’s more serious pretreatment record to the post-treatment violations, the Board found that removal was reasonable in the circumstances and would “promote the efficiency of the service.” 12 MSPB 406.

II.

Walker does not contest any portion of his disciplinary record incurred pre-treatment. He agrees that he committed the underlying violations and that (assuming he deserved punishment at all) the penalties were fair. As to the post-treatment violations remaining on his record after the MSPB proceedings, Walker similarly has no substantive dispute. He says only that, were it not for his supervisor’s desire to be avenged for the complaints Walker had made about him, those modest infractions would not have incurred discipline at all.

His principal contention, however, is that the sanction of removal is excessive even in the absence of a retaliatory taint. Removal might be appropriate if his pre-treatment and post-treatment disciplinary record could properly be considered in the aggregate, he argues, but an indiscriminate combination of both sets of violations to justify a penalty supposedly proportionate to the total culpability they purport to reflect is inconsistent with the anti-discrimination statutes and regulations, because it effectively punishes him for what has been legislatively decreed an illness.

As a “mixed case” involving both an original discrimination complaint and an MSPB appeal, each part of the case must be evaluated by a different standard. Walker’s claim to have been a victim of discrimination as one “handicapped” by alcoholism comes to this Court for de novo determination. 5 U.S.C. §§ 7702(a)(1)(B)(iii), 7703(b)(2) and (c). The usual agency appeal standards govern the MSPB appeal from the alleged “prohibited personnel practices” of discrimination and reprisal: non-factual determinations must not be arbitrary, constitute an abuse of discretion, or be otherwise not in accordance with law, and factual determinations must be supported by substantial evidence. 5 U.S.C. §§ 7703(a)(1) and (c).

III.

Defendants move to dismiss the complaint as untimely, because it was not filed in this Court within the 30-day period afforded an aggrieved federal employee to seek judicial review of decisions of the MSPB under 5 U.S.C. § 7703(b)(2). The MSPB’s decision, however, was served on plaintiff on December 30, 1982; his appeal to the U.S. Circuit Court of Appeals for the Federal Circuit was filed January 19, 1983. Although the instant complaint was not filed until November 1, 1983, it is clear (without having to consider whether circumstances might equitably excuse the lapse of time) that under 28 U.S.C. § 1631 the complaint here relates back to the date of Walker’s timely appeal to the Federal Circuit, which transferred the case to this Court on September 29, 1983, upon the authority of one of its own cases it did not decide until approximately three weeks earlier.

Defendants next assert that Walker has failed to state a claim for handicap discrimination, because he does not allege that alcoholism was the sole basis for his removal. The Alcohol Rehabilitation Act does state that an alcoholic may not be denied employment “solely on the ground of prior alcohol abuse or prior alcoholism,” 42 U.S.C. § 290dd-1(c)(1), which might semantically suggest that a history of inebriety coupled with any other dereliction places an employee beyond the protection of the statute. But the regulations make clear that what is intended is that an aleoholic is to be removed from federal employment, if at all, “solely on the basis of unsatisfactory job performance,” after refusal of treatment or inadequate improvement, not because he is or was an alcoholic. FPM Supp. 792-2, subch. S5-l(b).

A recent decision by another judge of this court demonstrates the interrelationship of the Rehabilitation and Alcohol Rehabilitation Acts as Congress intended them to bear upon alcoholic federal employees. In Whitlock v. Donovan, 598 F.Supp. 126, at 131 (D.D.C.1984), the court said: “These statutes viewed together in the light of their legislative history show Congress’s firm intention to require federal employers to exert substantial affirmative efforts to assist alcoholic employees toward overcoming their handicap before firing them for performance deficiencies related to drinking.” Whether or not they create an affirmative duty to rehabilitate federal employees afflicted with alcoholism, however, they do require an agency, at a minimum, to “make reasonable accommodation to the known physical or mental limitations of a qualified handicapped applicant or employee unless the agency can demonstrate that the accommodation would impose an undue hardship on the operation of its program.” 29 C.F.R. § 1613.704(a).

Defendants here assert that they “reasonably accommodated” Walker by reducing the intial proposed removal to a ten-day suspension and then allowing him to participate in a government-affiliated alcohol program. But an agency does not “reasonably accommodate” an alcoholic employee by keeping score of alcohol-induced, pre-treatment transgressions and reviving them post-treatment for purposes of cumulation with non-alcohol-related misconduct to produce an aggregate disciplinary record warranting more severe punishment. Pre-treatment records certainly remain relevant to gauge how successful treatment has been, or whether the disease process is so far advanced as to be unamenable to treatment or accommodation. In a disciplinary context, however, “reasonable accommodation” of an alcoholic employee requires forgiveness of his past alcohol-induced misconduct in proportion to his willingness to undergo and favorable response to treatment. Use of pre-treatment records conceded to be attributable to alcohol abuse for disciplinary purposes is inconsistent with the legislative perception of alcoholism as a disease, and behavioral problems a part of the symptomatology rather than the product of volitional acts of dissipation. See McKelvey v. Walters, 596 F.Supp. 1317 (D.D.C.1984). Moreover, knowledge that his employer may resurrect his alcohol-related infractions for penalty-enhancement purposes if he errs in the future may well be a disincentive for the alcoholic employee to enter, continue or complete necessary treatment.

Since the Court, in its review of the sufficiency of the MSPB's disposition of the discrimination claim as presented to it, and in advance of any de novo trial here, has determined that DPS and the MSPB did not properly exclude pre-treatment violations from its compilation of Walker’s disciplinary record upon which his removal was predicated, the agency decision must be remanded for reconsideration of an appropriate penalty on his record sans those offenses.

Walker also claims that the tardiness and absences reflected in his post-treatment disciplinary record would never have risen to a level justifying any punishment, much less removal, absent his immediate supervisor’s desire for revenge. Reprisal against an employee because of his disclosure of a suspected abuse of authority by a supervisor is likewise a prohibited personnel practice. 5 U.S.C. § 2302(b)(8)(A)(ii). Walker believes the reprisal was inspired by a letter he wrote to his supervisor’s superiors in January, 1979, charging an abuse of authority, in consequence of which the immediate supervisor was required to offer Walker an apology.

The MSPB failed to mention Walker’s reprisal claim in either its initial decision or its final order which obviously found it without merit. In order for a court to review any agency decision, “the agency [must] articulate with reasonable clarity its reasons for decision, and identify the significance of the crucial facts .... [T]he court must not be left to guess as to the agency’s findings or reasons.” Greater Boston Television Corporation v. FCC, 444 F.2d 841, 851 (D.C.Cir.1970), cert. denied, 403 U.S. 923, 91 S.Ct. 2229, 29 L.Ed.2d 701 (1971). Since the MSPB failed to give any reason whatsoever for its implicit determination that no reprisal was involved, the case must also be remanded to give it an opportunity to do so.

For the foregoing reasons, therefore, it is, this 14th day of January, 1985,

ORDERED, that defendants’ motion to dismiss or for summary judgment is denied; and it is

FURTHER ORDERED, that plaintiff’s motion for judgment on the pleadings is granted in part, and MSPB Docket No. DC 07528110719 is remanded to the MSPB for reconsideration in accordance with the foregoing; and it is

FURTHER ORDERED, that this case is scheduled for a further status conference on April 15, 1985, at 9:30 a.m.

      . This case began as Appeal No. 83-809 in the U.S. Court of Appeals for the Federal Circuit but was transferred to this Court, upon petitioner’s (i.e., plaintiffs) motion, on the ground that the joinder of the discrimination claim with the MSPB appeal renders the matter a "mixed case” of which only U.S. district courts have jurisdiction under 5 U.S.C. § 7702. See Williams v. Department of the Army, 715 F.2d 1485 (Fed.Cir.1983).

      . It is undisputed that alcoholism is a handicapping condition. See Ruzek v. General Services Administration, — M.S.P.R. —, 7 MSPB 307 (1981).

      . Walker’s disciplinary record preceding the notice of proposed removal consisted of:
      1. One-day suspension on June 1, 1979, for:
      a. being six hours late on May 1, 1979;
      b. failing to report for duty on May 7, 1979; and
      c. being three hours late on May 9, 1979.
      2. Five-day suspension on September 28, 1979, for:
      a. failing to report for duty on August 10, 1979;
      b. being six hours and six minutes late on August 13, 1979;
      c. being 24 minutes late on August 16, 1979;
      d. being two hours and six minutes late on August 22, 1979; and
      e. being three hours late on September 10, 1979.
      3. Ten-day suspension on August 28, 1980, for:
      a. failing to report for duty on May 27, 1980, June 23, 1980, June 25, 1980, and June 30, 1980;
      b. being four hours late on June 22, 1980; and
      c. being 18 minutes late on June 27, 1980.
      The notice of proposed removal was issued on October 1, 1980 for:
      a. returning to work 30 minutes late on July 31, 1980;
      b. being 30 minutes late on August 11, 1980;
      c. refusing to remain at work after receiving paycheck; and
      d. failing to turn in leave slip for leave without pay ("LWOP”), and being absent for three days.

      . The four post-treatment violations remaining on Walker’s record after the MSPB hearing were:
      1. Fifteen minutes of AWOL (attributed by Walker to a public transit delay) on April 9, 1981;
      2. Thirty minutes of AWOL (to cash a paycheck without receiving express permission to do so) on April 13, 1981;
      3. Four hours of AWOL (for going home without donating blood in accordance with permission; Walker claimed he was ill at the time); and
      4. One hour of AWOL (upon oversleeping).

      . Walker submits that if he had been suffering from any other malady, illness-related absences could not and would not have been counted for disciplinary purposes at all.

      . If an employee still suffers from alcoholism after treatment, he may be fired if he is incapable of "properly function[ing] in his employment.” 42 U.S.C. § 290dd-l(d). In such a case, however, he would not be dismissed as an alcoholic but, rather, “solely on the basis of unsatisfactory job performance.” FPM Supp. 792-2, subch. S5 — 1(b).

      . The court went on to summarize the statutory and regulatory obligations owing to federal employees whose work appears to be adversely affected by alcohol dependence:
      [T]he agency is obligated first to offer counseling to the employee. If the employee rebuffs the offer, and if the deficiency in his work is such that discipline would be warranted, the agency should offer a "firm choice" between treatment and discipline. An agency is obligated to follow through with its firm choices. Since it is recognized that relapse is predictable in treatment of alcoholics, an agency is not justified in automatically giving up on an employee who enters treatment but who subsequently relapses. In such a case, the agency may follow through with discipline short of removal. However, the agency is obligated before removing the employee from its work force to evaluate whether keeping the employee presents an undue hardship under 29 C.F.R. § 1613.704. If removal seems to be the only feasible option, the agency is obligated to conduct a formal evaluation, including a fitness-for-duty examination if necessary, to confirm whether the employee’s alcoholism disease is in fact responsible for the employee’s poor performance. If so, the agency must offer leave without pay if the employee will seek more extensive rehabilitative therapy that seems promising, and the agency must also counsel the employee regarding disability retirement.

        Id. at 14-15.

      . DPS’s Deputy Director, the agency's deciding official who initially ordered Walker's removal, testified before the MSPB that the appropriate penalty would have been a reprimand or suspension had Walker had "no past history" [of alcohol-related infractions].

      . Defendants urge that the reprisal claim is also barred by time. A federal employee has only 20 days within which to appeal an adverse personnel action to the MSPB, 5 C.F.R. § 1201.22(b), and defendants contend that Walker did not raise the reprisal issue until his appeal was actually heard in September, following his dismissal in July. However, on page two of his MSPB appeal from, filed July 23, 1981, Walker says: "This action was based upon my superivsor’s [sic] repeatedly subjecting me to discriminatory working conditions because I had made complaints about the manner in which he conducted the operation.” Walker may not have used the word "reprisal," but there is no doubt a reprisal was what he was describing. It is also clear that the MSPB presiding official understood Walker's appeal to include a reprisal claim. MSPB Hearing Transcript at 123.

      . The presiding official found in favor of Walker on one AWOL and the disobedience charge, in part because they were sought to be proved by the testimony of the allegedly vengeful supervisor, using what the presiding official found to be a fabricated document. Such evidence may be as probative of reprisal as it is disprobative of the charges it was offered to support.


source: Caselaw Access Project

author: MYRON L. GORDON, Senior District Judge.

license: Public Domain

text:
    Leroy W. KNIES, Nancy Knies, Plaintiffs, v. Donald W. RICHARDSON, et al., Defendants.
    No. 84-C-822.
    United States District Court, E.D. Wisconsin.
    Jan. 14, 1985.

      Leroy W. Knies and Nancy Knies, pro se.
    James McDermott, Asst. Atty. Gen., Madison, Wis., for defendants.
   DECISION and ORDER

MYRON L. GORDON, Senior District Judge.

The plaintiffs have refused to indicate their income on Wisconsin tax returns for the years 1977 and 1978. The Wisconsin Department of Revenue (DOR) assessed the plaintiffs’ tax liability based on its own estimate of their income, pursuant to Wis. Stats, ch. 71. The assessment was upheld by the Wisconsin Tax Appeals Commission (TAC). The plaintiffs appealed to the Waukesha Circuit Court under the Wisconsin Administrative Procedure Act, Wis. Stats, ch. 227, and that court affirmed. The plaintiffs brought this action against all state officials involved in the assessment of their taxes and subsequent proceedings. The defendants now move to dismiss. The motion will be granted.

The complaint is defective in many respects. The defendants’ motions to dismiss the complaint will be granted on the grounds that the defendants are immune from the plaintiffs’ suit and that the complaint fails to state a claim for which relief can be granted.

The defendants are state judges, assistant attorneys general, tax commissioners and DOR officials. The plaintiffs seek money damages from them. All of the defendants’ acts alleged in the complaint were official acts. The defendant judges are absolutely immune from suit for money damages. Stump v. Sparkman, 435 U.S. 349, 98 S.Ct. 1099, 55 L.Ed.2d 331 (1978).

The tax commissioners, as executive branch judicial officers, and the assistant attorneys general, as necessary adjuncts of the judicial process, may share the broad immunity of judges. Butz v. Economou, 438 U.S. 478, 511-16, 98 S.Ct. 2894, 2913-15, 57 L.Ed.2d 895 (1978). In any case, they, together with the remaining defendants, are protected by a qualified immunity “from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights....” Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S.Ct. 2727, 2738, 73 L.Ed.2d 396 (1982). It is clear that the qualified immunity applies here.

The action is also subject to dismissal because, even assuming the truth of the complaint’s factual allegations, the plaintiffs are entitled to no relief. The pro se complaint teems with dubious discourses on legal history and citations to irrelevant authorities. Thirty pages long yet lacking a single meritorious claim, the complaint patently offends the mandate of Rule 8, Federal Rules of Civil Procedure, that a complaint be a “short and plain statement.”

Ignoring the plaintiffs’ charges that the defendants conducted a “reign of terror,” conspired to overthrow the republican form of government, and other such recriminations, I find that the complaint raises five issues: (1) Did the DOR unconstitutionally consider the plaintiffs’ wages as income? (2) Were the plaintiffs entitled to a hearing on their challenge to the DOR’s jurisdiction? (3) Did the TAC have the authority to affirm the DOR’s assessment? (4) Did the plaintiffs have a right to a jury trial in their administrative review action before the circuit court; and (5) Were the plaintiffs accorded due process of law? These issues need not detain us long.

Wages are properly considered taxable under both state and federal law. Kile v. C.I.R., 739 F.2d 265 (7th Cir.1984); 21 U.S.C. § 61(a); Wis.Stats. §§ 71.10(2)(d) and 71.20. The DOR’s authority to assess the plaintiffs’ taxes and the TAC’s authority to hear the plaintiff’s appeal were clearly established, and a separate hearing was not required to consider the plaintiffs’ frivolous objections. Wis.Stats. ch. 71 and 73. The right to trial by jury applies only to suits at common law, not to judicial review of administrative decisions. Wis. Const, art. 1 and 5; Wis.Stats. ch. 227.

Wisconsin law provides elaborate procedures for the assessment of taxes by the DOR. After the initial assessment, the taxpayer is entitled to a redetermination. Wis.Stats. § 71.12(1)(a). If dissatisfied with the redetermination, the taxpayer may appeal to the TAC. Wis.Stats. §§ 71.-12(1)(c) and 73.01(5). An adverse decision by the TAC is subject to judicial review in state circuit court. Wis.Stats. § 73.015. The circuit court’s decision may be appealed. Id. I believe that the procedural safeguards available to taxpayers who wish' to challenge tax assessments fully satisfy the due process requirements of the fifth amendment.

Therefore, IT IS ORDERED that the defendants’ motion to dismiss be and hereby is granted.

IT IS ALSO ORDERED that this action be and hereby is dismissed, with prejudice.


author: NANGLE, Chief Judge.

text:
    Mario P. COMERIO, Plaintiff, v. BEATRICE FOODS COMPANY, Defendant.
    No. 84-1474C(1).
    United States District Court, E.D. Missouri, E.D.
    Jan. 15, 1985.

      James J. Sauter, St. Louis, Mo., for plaintiff.
    Anthony J. Sestrie, St. Louis, Mo., for defendant.
   MEMORANDUM

NANGLE, Chief Judge.

This case is now before this Court on plaintiff’s and defendant’s motions for summary judgment. The underlying facts and plaintiff’s allegations were reviewed by this Court in the Order and Memorandum dated October 15, 1984. Comerio v. Beatrice Foods Company, 595 F.Supp. 918 (E.D.Mo.1984). They will not be repeated herein.

I. STANDARD FOR SUMMARY JUDGMENT

Under Rule 56 of the Federal Rules of Civil Procedure, a movant is entitled to summary judgment if he can “show that there is no genuine issue as to any material fact and that [he] is entitled to a judgment as a matter of law.” Fed.R.Civ.P. 56(c). See also Poller v. Columbia Broadcasting System, Inc., 368 U.S. 464, 82 S.Ct. 486, 7 L.Ed.2d 458 (1962). In passing on a motion for summary judgment, a court is required to view the facts and inferences that may be derived therefrom in the light most favorable to the non-moving party. Buller v. Buechler, 706 F.2d 844, 846 (8th Cir.1983); Vette Co. v. Aetna Casualty and Surety Co., 612 F.2d 1076, 1077 (8th Cir.1980). The burden of proof is on the moving party and a court should not grant a summary judgment motion unless it is convinced that there is no evidence to sustain a recovery under any circumstances. Buller, 706 F.2d at 846. However, under Rule 56(e), a party opposing a motion for summary judgment may not rest upon the allegations of his pleadings but “must set forth specific facts showing that there is a genuine issue for trial.” Fed.R.Civ.P. 56(e). See also 10A Wright, Miller and Kane, Federal Practice and Procedure: Civil 2d, § 2739 (1983).

II. DEFENDANT’S MOTION FOR SUMMARY JUDGMENT

Defendant raises six (6) separate grounds in support of its motion for summary judgment. The first ground asserts that this Court lacks subject-matter jurisdiction over plaintiffs entire complaint. The second, third and fourth grounds are directed solely to Count I, the service letter count, of plaintiffs complaint. The fifth ground is directed to both Count I and Count II, the breach of contract count, and the sixth groimd is directed to Count III, the breach of the implied covenant of good faith and fair dealing count.

Defendant first argues that this Court lacks subject-matter jurisdiction over plaintiffs complaint because plaintiff does not satisfy the requirements for federal diversity-of-citizenship jurisdiction under 28 U.S.C. § 1332. Specifically, defendant argues that plaintiff failed to allege diversity of citizenship of plaintiff and defendant, and that plaintiffs claims do not exceed $10,000.00 exclusive of interests and costs. With respect to the first argument, it was obviated by plaintiffs amendment to his complaint on December 14, 1984, in which he alleged that “Defendant’s principal place of business is located in a state other than the State of Missouri.” Defendant objects to the ex parte nature in which plaintiff obtained leave to so amend, but said objection is not material because defendant fails to state what, if any, meritorious objections it would have made in opposition to plaintiff’s motion for leave and because defendant does not contend that the allegation contained in the amendment is untrue.

As to the amount in controversy, the general rule is that a claim will not be dismissed for failure to meet the jurisdictional amount unless it appears to a “ ‘legal certainty’ ” that plaintiff cannot obtain relief greater than said amount. Martin v. Granite City Steel Corporation, 596 F.Supp. 293, 297 (S.D.Ill.1984) (citing 1A Moore’s Federal Practice ¶ 0.157[6]). See also Johnson v. American Mutual Liability Insurance Company, 335 F.Supp. 390 (W.D.Mo.1971). It is also settled that punitive damages “can be included in determining the amount in controversy requirement if under the governing law of the suit they are recoverable.” Martin, 596 F.Supp. at 296 (citing Bell v. Preferred Life Assurance Soc., 320 U.S. 238, 64 S.Ct. 5, 88 L.Ed. 15 (1943). In the case at bar, defendant makes a persuasive argument that plaintiff cannot recover actual damages in excess of the $10,000.00 jurisdictional minimum. This Court held in the prior Order and Memorandum dated October 15, 1984, that the amended service letter statute governs plaintiffs remedies under Count I in this case. Said remedies include punitive damages because plaintiff alleges that defendant never provided the requested service letter. This Court cannot say to a “legal certainty” that plaintiff cannot recover punitive damages in excess of the jurisdictional minimum. Defendant argues that plaintiff cannot make a submissible case on punitive damages because plaintiff cannot prove that defendant was aware of the requirements of the service letter statute. Under Booth v. Quality Dairy Company, 393 S.W.2d 845 (Mo.Ct.App.1965), however, lack of knowledge- of the statute is an affirmative defense. Moreover, said defense will depend, primarily, on credibility determinations which are best left to the jury and this Court has been advised that further discovery is needed on this issue. In this situation, it cannot be said to be a “legal certainty” that plaintiff will not' be able to recover punitive damages in excess of $10,000.00.

Defendant’s substantive attacks on plaintiff’s service letter claim in Count I are essentially an attempt to relitigate some of the issues determined by this Court’s prior Order and Memorandum. First, defendant argues that the Missouri service letter statute is inapplicable to a “multi-state employment situation.” This is a variation on the choice-of-law argument previously rejected by this Court. Nevertheless, this Court is convinced that the employment relationship between plaintiff and defendant had sufficient contacts with the State of Missouri to warrant application of its service letter statute. Plaintiff was employed in Missouri, his office was in Missouri, and his sales territory included Missouri. The facts of this case are easily distinguishable from those in Horstman v. General Electric Company, 438 S.W.2d 18, 20 (Mo.Ct.App.1969).

Defendant next argues that the service letter statute which plaintiff relies on was repealed and that the Missouri Legislature thereby abolished or forgave all liability for violations thereof. This argument was squarely rejected by this Court in the prior Order and Memorandum and will not be reconsidered herein. This Court did not suffer from any “misconception” concerning the effect of the new service letter statute on the old one. The new statute did not contain an express “repealer” clause in the sense of a clause that explains the retroactive effect of the new statute on acts taken in reliance on the old statute. As explained earlier, this Court’s reading of Mo.Rev.Stat. §§ 1.170, 1.180 (1978), as well as Musselman v. Anheuser-Busch, Inc., 657 S.W.2d 282, 285 (Mo.Ct.App.1983), and Arie v. Intertherm, Inc., 648 S.W.2d 142, 159 (Mo.Ct.App.1983), leads this Court to conclude that the sufficiency of plaintiff’s request must be governed by the old statute, but the remedies to which plaintiff is entitled must be governed by the new statute. This result is further supported by the reasoning in State ex rel. Deering v. Corcoran, 652 S.W.2d 228, 230 (Mo.Ct.App.1983).

Defendant next argues that it is entitled to summary judgment on Count I because plaintiff did not send his request for a service letter to the appropriate agent of defendant. Plaintiff sent the letter to a Mr. Edwards, who defendant claims was not the “superintendent, manager or registered agent of” defendant. However, the quoted language is from Mo.Rev.Stat. § 290.140 (1978 as amended), whereas this Court previously held that the old statute, which merely required that the letter be sent to the supervisor or manager of the employee, governs the sufficiency of plaintiff’s request. In the opinion of this Court, a question of fact exists as to whether Mr. Edwards was a supervisor or manager of plaintiff. Moreover, defendant has admitted that Mr. Edwards was “one of the people to whom Plaintiff reported.” Thus, summary judgment on Count I is not appropriate.

Defendant next seeks summary judgment on both Counts I and II on the ground that said counts were previously dismissed by the state court and said dismissal is res judicata as to Counts I and II. This argument lacks candor for two (2) reasons. First, the motion presented to the state court raised two (2) grounds: 1) improper venue; and 2) inapplicability of the service letter statute. The order of dismissal stated that it was only “sustained in part”, but the court did not specify which part was sustained. This is clearly not a proper basis for res judicata. Second, the order of dismissal expressly stated that the action was dismissed “without prejudice.” It is a fundamental rule that dismissals without prejudice do not preclude relitigation of claims so dismissed. Accordingly, defendant is not entitled to summary judgment on this ground.

Finally, defendant seeks summary judgment on Count III of plaintiff’s complaint. Count III is a claim for breach of the implied covenant of good faith and fair dealing in an employment contract. Plaintiff expressly relies on Cleary v. American Airlines, 111 Cal.App.3d 443, 168 Cal.Rptr. 722 (1980), to support the existence of the cause of action in Count III. On the basis of Cleary, this Court previously held that plaintiff did not fail to state a claim upon which relief can be granted. Defendant now argues that, under Cleary and its progeny, as well as the undisputed facts in this case, plaintiff cannot prevail, as a matter of law, on Count III.

Cleary recognized' that every employment contract governed by California law contains an implied covenant of good faith and fair dealing. This implied covenant operates, in certain circumstances, as a limitation on the statutory right of an employer to arbitrarily dismiss an employee-at-will. The most precise statement of the covenant is, as follows:

“There is an implied covenant of good faith and fair dealing in every contract that neither party will do anything which will injure the right of the other to receive the benefits of the agreement.”

Cleary, 168 Cal.Rptr. at 728 (emphasis added by Cleary court) (quoting Comunale v. Traders & General Insurance Co., 50 Cal.2d 654, 658, 328 P.2d 198 (1958)). A literal application of the covenant so defined, however, would result in complete abolition of the employment-at-will doctrine. Although the decisions applying Cleary are somewhat confused, it is clear that California courts, including the Cleary court, have not abolished the employment-at-will doctrine. See, e.g., Crain v. Burroughs Corporation, 560 F.Supp. 849, 853 (C.D.Cal.1983); Shapiro v. Wells Fargo Realty Advisors, 152 Cal.App.3d 467, 199 Cal.Rptr. 613, 619 (1984); Newfield v. Insurance Company of the West, 156 Cal.App.3d 440, 203 Cal.Rptr. 9, 12 (1984); Crosier v. United Parcel Service, Inc., 150 Cal.App.3d 1132, 198 Cal.Rptr. 361, 364 (1983); Pugh v. See’s Candies, Inc., 116 Cal.App.3d 311, 171 Cal.Rptr. 917, 926 (1981). In addition, an examination of what the Cleary court actually did, makes it clear that it did not create a broad, far-reaching implied covenant of good faith in every employment contract.

What Cleary and its progeny did was create, in certain circumstances, an implied promise that the employee will not be discharged except for good cause. Pugh succinctly summarized the circumstances or factors that may give rise to such a promise, as follows:

the personnel policies or practices of the employer, the employee’s longevity of service, actions or assurances by the employer reflecting assurances of continued employment, and the practices of the industry in which the employee is engaged.

Pugh, 171 Cal.Rptr. at 925-26. The Cleary court, in holding that the employee stated a claim of wrongful discharge, relied on the longevity of the employee’s service (18 years) and the existence of an express employer policy that provided for specific procedures for adjudicating employee disputes. Cleary, 168 Cal.Rptr. at 729. The plaintiff’s 32 years of service was also a determinative factor in Pugh. In three (3) cases in which California courts rejected an employee-at-will’s claim that he could not be discharged without just cause, a key factor was the brevity of the employee’s service. See Crain (less than 2 years); Shapiro (3 years); and Newfield (less than 2 years).

Applying the above principles to the undisputed facts of this case, it is the opinion of this Court that defendant is entitled to summary judgment on Count III of plaintiff’s complaint. Plaintiff worked for defendant for a little more than three (3) years in total, and less than six (6) months under the second contract. This is far from the longevity recognized in Cleary and Pugh as requiring an employer to have just cause for dismissing an employee-at-will. Plaintiff has not come forward with any evidence of policies of or assurances by defendant that would have given plaintiff a reasonable belief that he would not be discharged except for good cause. Thus, plaintiff has not met its burden on a motion for summary judgment and the undisputed brevity of plaintiff’s service warrants entry of summary judgment in defendant’s favor on Count III of plaintiff’s complaint.

III. PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT

Plaintiff moves for summary judgment on Count I of his complaint, the service letter count. Plaintiff argues that it is undisputed that plaintiff sent a request for a service letter which complied with the requirements of the statute then in effect and that defendant did not provide the requested service letter. Plaintiff relies on a statement in this Court’s prior Order and Memorandum that “plaintiff’s request clearly satisfied the statute in effect at the time of said request.” Comerio, 595 F.Supp. at 920. However, that statement was made in the context of passing on a motion to dismiss, viewing the facts in the light most favorable to plaintiff. That statement did not constitute a binding determination of fact or law. Indeed, if the evidence is controverted, the sufficiency of plaintiff’s request is a question for the jury, not this Court. As discussed, supra, the evidence is controverted on the question of whether plaintiff sent the letter to the right person. Thus, a question of fact exists and plaintiff is not entitled to summary judgment on Count I.


author: BUA, District Judge.

text:
    PRO-LINE CORPORATION, a Texas corporation, Plaintiff, v. MIDWEST HAIR GOODS COMPANY, an Illinois corporation, Midwest Merchandisers Div., Defendant.
    No. 83 C 4121.
    United States District Court, N.D. Illinois, E.D.
    Jan. 15, 1985.

      Charles L. Wolberg, Rappaport & Meyer, Chicago, Ill., for plaintiff.
    Herbert H. Fisher, Law Offices of Herbert H. Fisher, Chicago, Ill., for defendant.
   ORDER

BUA, District Judge.

On August 5, 1983, this Court entered judgment on plaintiff’s complaint in favor of plaintiff Pro-Line Corp. (“Pro-Line”) and against defendant Midwest Hair Goods Co. (“Midwest”) in the amount of $26,600.19. The judgment against Midwest remains unsatisfied. On September 5, 1983, plaintiff filed a citation to discover the assets of Chico Foote, the principal officer and sole shareholder of Midwest. Plaintiff seeks to hold Foote personally liable for the judgment against Midwest on the grounds that Foote is the alter ego of Midwest.

After Foote produced his accountant for an “informal” examination, plaintiff filed a petition requesting the Court to enter judgment against Chico Foote individually in the amount of $26,600.19 and that a turnover order be entered on five automobiles allegedly owned by Foote and other property allegedly owned by Midwest. Foote has answered plaintiff’s petition; moved for summary judgment in his favor; and requests an order denying the relief requested by plaintiff. Plaintiff argues that factual issues exist and that a hearing pursuant to Ill.Rev.Stat. ch. 110, § 2-1402 is required to determine whether the turnover order and judgment against Foote are appropriate.

Rule 69 of the Federal Rules of Civil Procedure provides that supplementary proceedings in aid of the Court’s judgment are to be conducted “in accordance with the practice and procedure of the state in which the district court is held....” Fed. R.Civ.P. 69(a). Under Ill.Rev.Stat., ch. 110, § 2-1402, a plaintiff may prosecute “supplementary proceedings for the purpose of examining the judgment debtor or any other person to discover assets or income of the debtor not exempt from the enforcement of the judgment____” Id. at § 2-1402(a). The Court may compel “any person cited ... to deliver up any assets so discovered____” Id. at § 2-1402(b)(3). If it appears, however, that the assets discovered are claimed by a person other than the judgment debtor, the Court shall permit the claimant “to appear and maintain his or her right[s]” in the supplementary proceedings. Id. at § 2-1402(e).

Under Illinois law, summary judgment is available to resolve issues raised under Ill.Rev.Stat. ch. 110, § 2-1402. Federal Ins. Co. v. Maritime Shipping, Etc., 64 Ill.App.3d 19, 20 Ill.Dec. 664, 380 N.E.2d 873 (1st Dist.1978). In federal court, however, summary judgment is appropriate only “if the pleadings, depositions, and affidavits fail to disclose a genuine issue of material fact.” Gracyalny v. Westinghouse Electric Corp., 723 F.2d 1311, 1316 (7th Cir.1983). In deciding this question, the Court must “resolve all doubts against the party seeking summary judgment.” Id. Applying this standard, the following facts are assumed as true for purposes of this motion.

Chico Foote is the principal officer and sole shareholder of defendant Midwest. Midwest is an Illinois corporation doing business as a wholesale distributor of beauty and hair goods supplies. Plaintiff’s judgment against Midwest in the amount of $26,600.19 remains unsatisfied. Although Midwest ceased doing business in 1981, Foote continued to receive a substantial salary from Midwest during 1981 and 1982. In addition, Midwest funds were used to pay real estate taxes on property owned by Foote in 1981 and 1982. Finally, Foote converted five automobiles belonging to Midwest without payment to Midwest.

Foote is also the president and owner of Peoples Discount Corporation (“Peoples”) and Halsted Liquors (“Halsted”), both Illinois corporations doing business at the same location as Midwest. Plaintiff alleges that Midwest funds were used to make improvements on real estate occupied by Foote, Peoples and Halsted. Additionally, Foote admits in his affidavit that the payrolls of Halsted and Peoples were “funnelled through defendant’s [Midwest] checking and payroll accounts____” Answer to Petition, at 1.

In order to hold Foote personally liable on the judgment against Midwest, plaintiff must establish that Foote is the alter ego of Midwest. See Federal Ins. Co. v. Maritime Shipping Agencies, Inc., 64 Ill.App.3d 19, 20 Ill.Dec. 664, 380 N.E.2d 873 (1st Dist.1978). An officer of a corporation will be considered the alter ego of the corporation where:

... there is such unity of interest and ownership that the separateness of the individual and corporation has ceased to exist, and the facts are such that an adherence to the fiction of separate existence of the corporation would sanction a fraud or promote injustice____

Federal Ins. Co., 20 Ill.Dec. at 671, 380 N.E.2d at 880. In order to hold Peoples or Halsted liable for the judgment against Midwest, plaintiff must establish that either Peoples or Halsted acted as the alter ego of Midwest. Id. See also In re Bowen Transports, Inc., 551 F.2d 171, 179 (7th Cir.1977). The corporate veil of an affiliated corporation may be disregarded when required in the interests of justice. In re Bowen Transport Inc., 551 F.2d at 179.

Although Foote has filed a detailed affidavit in support of his motion for summary judgment, factual issues have been raised which cannot be resolved by affidavit. Accordingly, an evidentiary hearing is required to determine whether Foote, Peoples or Halsted acted as the alter egos of Midwest and, therefore, are liable to plaintiff for the judgment against Midwest. In addition, the Court must decide which entity has ownership interests in the five automobiles sought by plaintiff and whether they should be turned over to plaintiff in partial satisfaction of the judgment against Midwest.

CONCLUSION

Defendant Chico Foote’s motion for summary judgment is denied. The issues raised by plaintiff’s Petition and defendant Foote’s Answer will be set for an evidentiary hearing before a Magistrate of this Court.

IT IS SO ORDERED.

      . Although Foote disputes many of these facts, for purposes of this motion, the Court assumes that plaintiffs version of the facts are true. Gracyalny v. Westinghouse Electric Corp., 723 F.2d 1311, 1316 (7th Cir.1983).


author: LOUIS H. POLLAK, District Judge.

text:
    Robert S. MOZUR v. Verne ORR, Secretary of the Air Force.
    Civ. A. No. 83-1204.
    United States District Court, E.D. Pennsylvania.
    Jan. 15, 1985.

      Eric J. Fischer, Community Legal Services, Philadelphia, Pa., for plaintiff.
    Rachel Shao, Asst. U.S. Atty., Philadelphia, Pa., for defendant.
   OPINION

LOUIS H. POLLAK, District Judge.

Plaintiff joined the Army Air Corps (currently the Air Force) in January, 1943. The Report of Physical Examination and Induction dated December 22, 1942 notes no serious medical problems and states that plaintiff was “physically and mentally qualified for general military service.” Military Personnel Records at 5.

On June 28, 1943, plaintiff was discharged from duty. The Report of Physical Examination of Enlisted Man Prior to Discharge or Retirement states that plaintiff suffered from “Psychoneurosis, mixed type” incurred under “unknown” circumstances. The certification of the immediate commanding officer on the discharge form states that “[i]n my opinion the disease was not incurred in the line of duty in the military service of the United States.” Air Force Correction Board Proceedings at 24. The same certification is provided by the physician who performed the discharge physical examination.

The discharge was the result of a recommendation by the Army physician who was treating plaintiff in May, 1943. That physician concluded that plaintiff suffered from “[pjsychoneurosis, mixed type, severe, cause undetermined, manifested by extreme psychosomatic introspection, insomnia, and episodes of somnambulism all without organic basis.” Air Force Correction Board Proceedings at 26. The treating physician found that this condition was not incurred in the line of duty. Id.

Prior to his discharge, plaintiff had been hospitalized continuously from approximately April 30, 1943. The physician who took plaintiffs medical history at the time of a May 15, 1943 examination noted that plaintiff complained of “pain in knees, elbows, feet, since age of 8. Tires easily. Has nightmares and headaches.” Id. at 28. That same physician recites the history of plaintiffs illness as follows:

This soldier states that he has been ailing since the age of 8 with pains in the knees, and elbows, headaches, nervousness and easy fatigability.) [sic ] He states that he has had growing pains in his knees and that his entire family has rheumatic heart disease.
Is unable to stay on feet longer than 15 minutes because of pains in knees and shortness of breath.
Had a “nervous breakdown” at age of 17 and could not work for several months/Never could keep a job. Used to stay out naked on the street and was brought in by the milkman. Gets hysterical.

Id. at 29.

A May 23 physician’s report relates a similar medical history and describes plaintiff’s psychiatric status as follows:

Soldier is quite garrulous. He can go on indefinitely recounting long and varied symptomatology. Despite the disabling nature of his symptoms as he relates them, he does so with evident relish and with a smile. He is an emotionally inadequate individual, who never apparently adjusted well to life since his so called “nervous breakdown” at the age of 17. He shows extreme psychosomatic introspection. There is no evidence of psychosis or mental deficiency. He is a pronounced Psychoneurotic. He may have some parathyroid deficiency; this however is not clearly evident. Certainly his psychoneurotic manifestations cannot be explained on a parathyroid deficiency. They (are explained on the basis of an inadequate personality reaction and have been continuously present for the last 4 or 5 years.) It is doubtful that any useful service can be obtained from this soldier and in view of his short period of service, separation under WD Cir. # 395 is recommended.

Id. at 33.

In 1944 plaintiff applied for and received disability benefits for his “nervous condition.” Id. at 38. Those benefits were severed in 1957 “[s]ince a determination has been made that your nervous condition was not incurred in or aggravated by your military service in World War II.” Id. at 39.

Plaintiff, represented by the Jewish War Veterans of the United States, appealed this decision to the Board of Veterans Appeals. The Board denied the appeal following a hearing at which plaintiff and his mother appeared as witnesses. That decision, issued July 26, 1957, stated that the Board had considered not only the military records in the case but also the testimony presented at the hearing, affidavits of plaintiff’s friends and letters from various physicians who had treated plaintiff both before and after his period of service.

Plaintiff then applied to the Air Force Board for Correction of Military Records (“AFBCMR”) for a revision of his military records which would recite that his mental problems were service-connected. That pro se petition was denied in January, 1961. The decision of the AFBCMR states that the military records and the facts presented by plaintiff failed “to establish a showing of probable error or injustice in your case.” Proceedings of Air Force Board for Correction of Military Records at 1.

In 1982 plaintiff filed a new request with the AFBCMR for correction of his records. This time, proceeding with the assistance of counsel, plaintiff asked that the records be amended “to delete all reference to any mental disorder or nervous breakdown existing prior to induction in the Armed Forces.” Air Force Correction Board Proceedings at 2. This request for amendment of records was accompanied by a large number of exhibits. They included letters written by five physicians who had seen plaintiff after his discharge from the service, all of whom concluded that plaintiffs mental condition was service-connected. In addition, the AFBCMR was provided with a letter from Dr. Leon Kacher who had treated plaintiff during his youth. That letter states “[a]s much as I am able to recall, I treated Mr. Mozur on two or three occasions in the later thirties or early forties for some general complaints — upper respiratory infection and gastro-intestinal upset. I did not treat him for any neurologic or psychiatric complaints.” Id. at 57. The application was also accompanied by over forty letters from persons who had known plaintiff prior to his induction in the service who stated that he did not suffer from any psychiatric problems prior to his period of service.

On January 25, 1983, the AFBCMR denied the renewed application. The decision of the AFBCMR stated, in pertinent part:

2. The application was not timely filed; however, it is in the interest of justice to excuse the failure to timely file.
3. Insufficient relevant evidence has been presented to demonstrate the existence of probable error or injustice. Applicant’s contentions are duly noted; however, we agree with the opinion and recommendation of the Office of the Surgeon and adopt their rationale as the basis for our conclusion that the applicant has not been the victim of an error or injustice. Therefore, in the absence of substantial evidence to the contrary, we find no compelling basis to recommend granting the relief sought.

The recommendation of the Office of the Surgeon relied upon by the AFBCMR states:

1. Applicant’s entire case file has been reviewed and is forwarded with the following findings, conclusions and recommendations.
2. The applicant was discharged from the Army Air Corps in June 1943 after a short period in the service. At this most late and untimely date he applies requesting “amend record to delete all reference to any mental disorder or nervous breakdown existing prior to induction in the Armed Forces” because he has not been rated by the VA.
3. The records are correct. Service medical records clearly document applicant’s mental condition existed pri- or to induction in the armed services and was not service-incurred.
4. VA records, including extensive review of his case by the Board of Veteran Appeals, clearly indicate applicant’s mental condition is not service-connected.
5. The Surgeon General’s Consultant Staff is of the opinion that no change in the records is warranted, the application is untimely, without merit and should be denied.

Id. at 4. The only Veterans Administration records in the documentation before the AFBCMR are those from the 1957 Board of Veterans Appeals decision approving the termination of plaintiff’s benefits.

Plaintiff filed this action for review of the AFBCMR’s 1983 decision soon thereafter. Cross-motions for summary judgment were filed in the spring of 1984. In a Memorandum/Order dated June 29, 1984, I concluded that I should consider this appeal on the merits despite defendant’s contention that the appeal was barred by laches. However, I found that before I could evaluate the merits of the motions, I would need further briefing on the applicability and content of an Army regulation which, plaintiff contended, established a presumption of sound condition upon induction or a presumption that any condition was aggravated in the service. Army Regulation 40-1025 (December 12, 1944). See Ludzinski v. United States, 154 Ct.Cl. 215 (1961). I directed that such additional briefing be provided according to a schedule established in that Memorandum/Order and that “all submissions should include copies of the full text of all regulations cited.” Mozur v. Orr, No. 83-1204 (June 29, 1984) at 5.

The parties have now filed supplemental briefs and the matter is ripe for consideration. Plaintiffs motion for summary judgment argues that the AFBCMR decision was arbitrary and capricious and not based upon substantial evidence. Plaintiff suggests that the standards developed in the “parallel” area of Social Security disability benefit appeals should be applied to this case. Plaintiff notes that the preinduction physical evaluation of plaintiff showed that no disability, mental or physical, was present in December 1942. In addition, plaintiff points to the various affidavits and physicians’ statements presented in support of the 1982 application to the AFBCMR for the proposition that the evidence of record overwhelmingly supports a finding that the disability was service-connected. Plaintiff suggests that any statements made by plaintiff to his doctors while he was hospitalized in the service are inherently untrustworthy since they are the statements of a man who was then suffering from severe mental illness. Furthermore, plaintiff contends that the Army regulation discussed in my Memorandum/Order of June 29, 1984 requires a presumption of soundness upon induction or service aggravation of a disability when the disability is not noted on the preinduction physical record and fits the characteristics of plaintiff’s disability. Finally, plaintiff argues that this is not an appropriate case for remand to the AFBCMR for reconsideration since the delay inherent in such a remand will pose a substantial hardship for plaintiff. Instead, plaintiff contends that the evidence of record supports a decision to grant summary judgment for plaintiff and to order full amendment of plaintiff’s military records as. requested.

Defendant responds that the decision of the AFBCMR should be affirmed because the evidence is such that reasonable minds could disagree on the appropriate result. Defendant contends that plaintiff’s service medical records as well as statements of the civilian physician who had treated plaintiff prior to his induction establish the necessary basis for the AFBCMR’s decision. In addition, defendant disputes plaintiff’s contention that plaintiff’s statements while hospitalized are of little or no value. Defendant argues that there is no evidence that plaintiff was so severely mentally disabled at the time of his in-service hospitalization that he was unable to present an accurate picture of his medical history. Moreover, defendant suggests, the physicians who recorded these statements were able to observe the plaintiff’s condition first-hand and could discount those statements if they believed that plaintiff’s condition rendered the statements untrustworthy.

In evaluating the merits of these motions, it is first necessary to consider the appropriate standard of review to apply in an appeal from the decision of the AFBCMR. The parties agree that the applicable standard of review is that discussed in Chief Justice Burger’s opinion in Chappell v. Wallace, 462 U.S. 296, 103 S.Ct. 2362, 76 L.Ed.2d 586 (1983). “Board decisions are subject to judicial review and can be set aside if they are arbitrary, capricious or not based upon substantial evidence. See Grieg v. United, States [226 Ct.Cl. 258], 640 F.2d 1261 (Ct.Cl.1981), cert. denied, 455 U.S. 907, 102 S.Ct. 1251, 71 L.Ed.2d 444 (1982); Sanders v. United States [219 Ct.Cl. 285], 594 F.2d 804 (Ct.Cl.1979).” Id. at 2367. See, e.g., Neal v. Secretary of Navy, 639 F.2d 1029 (3d Cir.1981); Thornton v. Coffey, 618 F.2d 686, 692 n. 3 (10th Cir.1980); Nolen v. Rumsfeld, 535 F.2d 888, 889 (5th Cir.1976); Horn v. Schlesinger, 514 F.2d 549, 553 (8th Cir.1975); Hodges v. Callaway, 499 F.2d 417, 423 (5th Cir.1976); Benvenuti v. Department of Defense, 587 F.Supp. 348, 355 (D.D.C.1984); Lord v. Lehman, 540 F.Supp. 125 (E.D.Pa.1982). The Court of Claims has put the matter well:

To recover for failure to correct an alleged injustice, such as perhaps based on gross material error of fact or an action contrary to all evidence, it must be proved that such failure was arbitrary and capricious, or in bad faith, or contrary to law, or without rational basis, seriously prejudicial to plaintiff, and with monetary consequences. In such event, the abuse of administrative discretion rises to the level of legal error which merits judicial relief. These are comparatively rare cases____ Perhaps they are infrequent because the proof must overcome the strong, but rebuttable, presumption that administrators of the military, like other public officers, discharge their duties correctly, lawfully, and in good faith.

Sanders v. United States, 219 Ct.Cl. 285, 594 F.2d 804, 813 (1979).

Plaintiff asserts that the AFBCMR decision was arbitrary and capricious and not supported by substantial evidence both because the AFBCMR did not apply the presumptions of soundness or service aggravation established by the applicable Army regulation and because the evidence before the AFBCMR is insufficient to support the conclusion reached.

It is well-established that the various branches of the military, like civilian administrative agencies, are bound by their own regulations. E.g., Neal v. Secretary of the Navy, 639 F.2d 1029 (3d Cir.1981); Biddle v. United States, 186 Ct.Cl. 87 (1968). Plaintiff claims that the AFBCMR failed to satisfy this basic requirement by ignoring Army Regulation 40-1025 (December 12, 1944) which establishes certain presumptions regarding the medical conditions of Army personnel. The parties agree that, if any regulation is applicable to the AFBCMR decision in this case, it is that 1944 regulation since it was in force at the time of plaintiff’s discharge from the Army Air Corps. Although the Army Air Corps has long since become the Air Force and, as such, is subject to regulations promulgated by the Secretary of the Air Force, in 1943, Army regulations governed the Army Air Corps.

Defendant contends, however, that AR 40-1025 does not apply to plaintiff’s ease because that regulation applies solely to claims of officers who have at least twenty years of service. In fact, defendant asserts, that regulation is only applicable to determinations of the Disability Review Board and not to the AFBCMR. Defendant thus seeks to distinguish the opinion relied upon by plaintiff, Ludzinski v. United States, 154 Ct.Cl. 215 (1961), on the ground that Mr. Ludzinski fulfilled those criteria necessary for the application of AR 40-1025.

Defendant’s position is not supported by Ludzinski. In that case, as in this, the Court of Claims was directly reviewing a decision of the AFBCMR. Defendant is correct that in Ludzinski the AFBCMR had referred the matter to the Disability Review Board and then adopted the recommendations of that Board as its own findings, but the body whose decision was under review was the AFBCMR.

Furthermore, the claimant in Ludzinski had not served in the military for twenty years as defendant now asserts. Mr. Ludzinski enlisted in the National Guard in 1939. He was inducted into regular service in 1940 and in 1942 he was assigned to the Air Corps, then a division of the Army. Mr. Ludzinski was discharged on the basis of his disability in 1945. Thus, at most, he could have been credited with six years of active service. Therefore, I find no basis in the materials presented by either party for the conclusion that AR 40-1025 should not apply to plaintiffs case because he did not serve for twenty years.

In addition, defendant provides no support for the proposition that AR 40-1025 applies solely to claims of individuals who were officers in the Army at some point during their military service. The only text of AR 40-1025 made available to this court by the parties is that portion of that regulation found in the Ludzinski opinion. However, the text and discussion of AR 40-1025 in Ludzinski does not support this aspect of defendant’s argument. The section of AR 40-1025 quoted in that opinion refers solely to “militarized person[s].” Ludzinski, 154 Ct.Cl. at 266. There is no definition of that term provided in the opinion but that language does not appear to limit the application of this regulation to officers. Since defendant has pointed to no authority other than Ludzinski for its contention that AR 40-1025 is relevant to claims of officers only, I cannot conclude that AR 40-1025 is inapplicable to plaintiff’s case on that basis.

Finally, the Court of Claims decision in Ludzinski contradicts defendant’s assertion that AR 40-1025 is inapplicable to proceedings before the AFBCMR. At the conclusion of its discussion of AR 40-1025 and certain military manuals on medical matters, the court noted:

The regulations are not to be lightly taken. They must be strictly observed. They are “binding on the retiring boards, and on the Surgeon General, and on the Disability Review Board, and on the Board for Correction of Military Records and on the Secretary of War. Since they were reasonably designed to carry into effect acts of Congress, they have the force and effect of law.” Prichard v. United States, 133 Ct.Cl. 212, 216 [135 F.Supp. 420 (1955)].

Id. at 230.

Thus, I have discovered no support for defendant’s arguments that AR 40-1025 is limited in applicability to factual circumstances not found in the present case. Defendant has provided no other arguments against the application of AR 40-1025 to plaintiff’s case. Consequently, it would appear that that regulation and the presumptions therein should have been considered by the AFBCMR. The most obvious source to look to to determine whether this regulation is so applicable is the language of the regulation itself.

Unfortunately, despite the direction in my Memorandum/Order of June 29, 1984 that the supplemental submissions regarding the applicable regulations “should include copies of the full text of all regulations cited,” Mozur v. Orr, No. 83-1204 (E.D.Pa. June 29, 1984) at 5, the only text of AR 40-1025 provided to me is that found in the Court of Claims decision in Ludzinski, 154 Ct.Cl. 209 (1961). Although that opinion is quite thorough in its review of the facts and applicable law, it quotes only a portion of the regulation and omits substantial sections thereof. In fact, the opinion quotes only subsections of paragraph 63 of AR 40-1025 and does not indicate the nature of the omitted material.

The quotation of AR 40-1025 found in Ludzinski reads as follows:

Par. 63 * * *
b. Basic provision for determining line of duty. — A disease or injury that a militarized person contracts or sustains, while in the active military service of the United States, will be presumed to have been incurred in line of duty, unless there is substantial evidence to show that such disease or injury—
* * * * * *
(4) Existed prior to the individual’s current active service and was not aggravated by the service (g below).
* * * * * *
g. Existed prior to individual’s current active service and was not aggravated by service (EPTS).
******
(2) Basic provision. — Irrespective of length of service, an Army patient will be presumed to have been in sound condition upon entering active service, unless the disease or injury, or the conditions which brought about the disease, injury, or death, were noted on the patient’s physical examination upon entrance into the service, or unless clear and unmistakable evidence ((3) below) demonstrates that the injury or disease, or the conditions which caused the disease, injury, or death, though not noted, existed prior to the patient’s active service. Further, even if the existence of the condition prior to entering active service has been established, only specific findings of “natural progress” of the disease or injury, based on well-established medical principles, are able to overcome the presumption of service-aggravated ((4) below). This provision will serve as a basis for judging line of duty in all cases, on or after 7 December 1941, and before the termination of hostilities incident to the present war. (It will be borne in mind that in determining benefits, the incapacity, whether resulting from a condition incident to service, or from a condition that existed prior to service but aggravated by the service beyond the “natural progress” of the condition, must be permanent; that is, the incapacity caused by the condition must be such that the removal of the disability within a reasonable time is highly improbable; * * *
(3) Clear and unmistakable evidence. —Medical judgment alone, as distinguished from well-established medical principles, will not be considered sufficient to rebut the presumption of the patient’s sound condition at the time of his entrance into active military service. ***
(4) Service-aggravated. — Any increase in disability during active service resulting from a condition that existed prior to active service will be presumed to have been service-aggravated, unless it can be proved otherwise on the bases of well-established medical principles. Medical or surgical treatment furnished during service for preexisting conditions does not. of itself establish increase in disability; however, if such treatment was necessitated by increase in severity of preexisting conditions, then such disability will be considered as service-aggravated, unless the condition was improved by such treatment. * * *
(5) Psychiatric cases.
(a) In line of duty. — The following cases will be considered to be in line of duty irrespective of length of service:
******
2. Cases of * * * psychoneurosis occurring in individuals in whom predisposition to these diseases, but not the actual disease itself, existed prior to entry into the service. Neurotic traits in themselves will not be regarded as necessarily indicating the presence of psychoneurosis or psychosis.
3. Psychiatric conditions occurring in individuals in whom such conditions existed prior to entry into the service, but where there is evidence to show that the disorder has been aggravated by the service. * * *
(b) Not in line of duty. — The following cases will be considered to be not in line of duty: cases of * * * psychoneurosis where available evidence clearly indicates the existence of the disease prior to entry into the service, and that the disease was not aggravated by the service.

Id. at 266-68.

Under the circumstances, I could again direct counsel to submit the full text of AR 40-1025. In the alternative, since the parties apparently agree that the portion of AR 40-1025 quoted in Ludzinski is the only language which bears on the present case, and since defendant has provided specific arguments against the application of this regulation all of which I have rejected, I could address the AFBCMR decision on the assumption that AR 40-1025 is applicable and that I am in possession of all relevant subsections of that regulation. In light of the long delays which have already occurred in this action and the fact that the parties have already been allowed ample opportunity to expand on their arguments relating to AR 40-1025, I will follow the latter course.

AR 40-1025 provides that a patient will be presumed to have been in sound condition upon entering active service, unless the disease or injury or the conditions which brought such disease or injury about were noted on the patient’s physical examination upon entrance into the service or unless “clear and unmistakable evidence ((3) below) demonstrates that the injury or disease or the conditions which caused the disease, injury, or death, though not noted, existed prior to the patient’s active service.” As already noted, plaintiff’s physical examination upon induction did not indicate the existence of any psychological problems. Therefore, to rebut" the presumption created by the regulation that plaintiff was in sound condition at the time of induction, it is necessary to find “clear and unmistakable evidence” that the disease or the conditions which caused the disease existed prior to service. Subsection 3 cited in this portion of the regulation defines “clear and unmistakable evidence” as follows:

Clear and unmistakable evidence. — Medical judgment alone, as distinguished from well-established medical principles, will not be considered sufficient to rebut the presumption of the patient’s sound condition at the time of his entrance into active military service____

Furthermore, even if such clear and unmistakable evidence exists to establish the presence of the disease prior to induction, the regulation also provides that “only specific findings of ‘natural progress’ of the disease or injury, based on well-established medical principles, are able to overcome the presumption of service-aggravated ((4) below).”

Subsection (4) reads as follows:

Service-aggravated. — Any increase in disability during active service resulting from a condition that existed prior to active service will be presumed to have been service-aggravated, unless it can be proved otherwise on the bases of well-established medical principles. Medical or surgical treatment furnished during service for preexisting conditions does not of itself establish increase in disability; however, if such treatment was necessitated by increase in severity of preexisting conditions, then such disability will be considered as service-aggravated, unless the condition was improved by such treatment____

There are also specific provisions regarding psychiatric disabilities. A psychiatric condition will be presumed to be incurred in the line of duty when a predisposition toward the disease, but not the disease itself, existed prior to induction, and also when there is evidence of service-aggravation of the condition even if it existed prior to induction. However, where the evidence clearly indicates the existence of psychoneurosis prior to service and no in-service aggravation of the condition, the psychoneurosis will not be “considered ... in line of duty.”

Thus, it is necessary to determine whether the AFBCMR found “clear and unmistakable evidence” before it to show that the plaintiff’s condition predated his induction and/or whether there were specific findings of natural progress of the disease from the time of induction to the time of discharge to establish that the condition was not service-aggravated. In addition, it is appropriate to consider whether the AFBCMR found that the evidence before it “clearly indicates the existence of the disease [psychoneurosis] prior to entry into the service” and that the disease was not aggravated in service. If such findings were made by the AFBCMR then the decision of that Board upon review of plaintiff’s application for amendment of his records would have been made in compliance with AR 40-1025.

To determine whether the AFBCMR complied with AR 40-1025 it is necessary for me to look to the decision issued by that Board when it denied plaintiffs application. This is also the first step to be taken in determining whether plaintiffs second challenge to the AFBCMR decision — that the decision was not supported by the evidence before the Board — warrants reversal of the conclusion not to amend plaintiffs records. Reference to the AFBCMR decision is the proper starting point in this review because “there is a strong presumption that the personnel involved in the decisionmaking process have faithfully discharged their duties---Such deference applies not only to the military but to any decisionmaker whose decision is to be reviewed under a standard that assumes discretion has been exercised soundly, in the absence of proof to the contrary. That is the basis for selection of an arbitrary and capricious standard rather than one providing less restrictive review.” Neal v. Secretary of the Navy, 639 F.2d 1029, 1037-38 (3d Cir.1981).

However, although the standard of review to be applied in the present case is quite deferential, the court conducting the review must be provided with sufficient information from which to determine that the AFBCMR decision was proper.

The normal rule where a discretionary administrative decision is to be reviewed by a court (other than on a de novo basis) is that the agency must give sufficient indication of the grounds for its exercise of discretion that the reviewing tribunal can appraise that determination under the appropriate standards of review (and the applicant for relief can challenge it). The basic concept has been reiterated time and again — in differing formulations and contexts but always centering on the need for the court, and the complaining party, to be given some helpful insight into the agency’s reasoning. ...
The fundamental principle of reasoned explanation embodied in these (and comparable) decisions serves at least three interrelated purposes: enabling the court to give proper review to the administrative determination; helping to keep the administrative agency within proper authority and discretion, as well as helping to avoid and prevent arbitrary, discriminatory, and irrational action by the agency; and informing the aggrieved person of the grounds of the administrative action so he can plan his course of action (including the seeking of judicial review).

Matlovich v. Secretary of the Air Force, 591 F.2d 852, 857 (Ct.Cl.1978). Thus, while the agency need not provide an extensive exegesis of the rationale underlying its decision, Neal v. Secretary of the Navy, 639 F.2d 1029, 1038 (3d Cir.1981), there must be a sufficient discussion of the reasoning which led to the AFBCMR’s conclusion to allow a court properly to review that decision. E.g., Istivan v. United States, 231 Ct.Cl. 671, 689 F.2d 1034, 1038 (1982); Werner v. United States, 266 Ct.Cl. 462, 642 F.2d 404, 408 (1981); Buchanan v. United States, 223 Ct.Cl. 291, 621 F.2d 373, 383 (1980); Hary v. United States, 223 Ct.Cl. 10, 618 F.2d 704, 708 n. 6 (1980); Kowal v. United States, 188 Ct.Cl. 631, 412 F.2d 867, 873 (1969); Beckham v. United States, 183 Ct.Cl. 628, 392 F.2d 619, 622 (1968); Lord v. Lehman, 540 F.Supp. 125, 130 (E.D.Pa.1982).

The decision of the AFBCMR in the present case states that the “Board took notice of the applicant’s complete submission in judging the merits of the case.” Air Force Correction Board Proceedings at 2. In the portion of the decision reserved for a statement of the facts, the Board cites to the “memorandum prepared by the Office of the Surgeon (Exhibit C)” and states that “therefore, a recitation of these facts is not set forth hereinafter.” Apparently, this statement reflects the AFBCMR’s determination that it would adopt the Office of the Surgeon’s statement of the facts. Then, in the section of the AFBCMR’s decision entitled “The Board Concludes That:” the first two paragraphs recite that all administrative remedies have been exhausted arid that, although the application was not timely, it is in the interest of justice to excuse the untimeliness. The third paragraph of this section states:

Insufficient relevant evidence has been presented to demonstrate the existence of probable error or injustice. Applicant’s contentions are duly noted; however, we agree with the opinion and recommendation of the Office of the Surgeon and adopt their rationale as the basis for our conclusion that the applicant has not been the victim of an error or injustice. Therefore, in the absence of substantial evidence to the contrary, we find no compelling basis to recommend granting the relief sought.

Since the only reasoning provided by the AFBCMR in support of its denial of plaintiff’s application is the decision of the Office of the Surgeon, I will look to that recommendation and treat it as a part of the decision of the AFBCMR. However, that document presents only the following reasons for the conclusion reached therein:

3. The records are correct. Service medical records clearly document applicant’s medical condition existed prior to induction in the armed services and was not service-incurred.
4. VA records, including extensive review of his case by the Board of Veteran Appeals, clearly indicate applicant’s mental condition is not service-connected.

The VA records in question are those prepared in 1957.

The reasoning provided by the Office of the Surgeon and adopted by the AFBCMR is insufficient to allow proper judicial review of the conclusions reached. As the Court of Claims stated in Beckham v. United States, 183 Ct.Cl. 628, 392 F.2d 619, 622 (1968):

there is no satisfactory showing on the record that the board’s determination was based upon a balanced consideration of all the evidence available and presented. A naked conclusion and mere recitation that the opinion is based upon all of the evidence without an analysis of the evidence in writing (as here), is inimical to a rational system of administrative determination and ultimately inadequate.

The decision of the AFBCMR is apparently based upon the conclusion that the military medical records which were fully evaluated by the Board of Veterans Appeals support a finding that the plaintiff’s disability existed prior to his induction into the military. However, it is the obligation of the AFBCMR, as it is the duty of all administrative bodies whose decisions may be reviewed by the courts, to show that it has considered all of the evidence before it and to state why evidence contrary to the ultimate conclusion reached was disregarded or given lesser weight. There is nothing in the decision of the AFBCMR or of the Office of the Surgeon which would suggest that either body evaluated the evidence presented with the application which postdated the decision of the Board of Veterans Appeals. This evidence included statements from a number of physicians as well as non-expert opinions from individuals who knew plaintiff prior to his military service that plaintiff did not suffer from any mental disorders at that time. Thus, the decision of the AFBCMR does not re-fleet a balanced consideration of all the evidence available and presented. Furthermore, the decision is so sketchy and conclusory as to be unreviewable.

In this situation, the court may either look to the record as a whole, without giving much deference to the conclusion of the Board, to determine whether the plaintiff should be awarded the relief requested, e.g., Istivan v. United States, 231 Ct.Cl. 671, 689 F.2d 1034, 1038 (1982); Hary v. United States, 223 Ct.Cl. 10, 618 F.2d 704, 708 n. 6 (1980); Buchanan v. United States, 223 Ct.Cl. 291, 621 F.2d 373, 383 (1980); Beckham v. United States, 183 Ct.Cl. 628, 392 F.2d 619, 623 (1968), or remand the matter to the AFBCMR for reconsideration of the application and for preparation of a more complete discussion of the basis for its conclusion. E.g., Bishop v. United States, 230 Ct.Cl. 215, 673 F.2d 1369 (1982); Matlovich v. Secretary of the Air Force, 591 F.2d 852 (Ct.Cl.1978); United States v. Spritzen, 262 F.Supp. 632 (E.D.Pa.1967). Because the AFBCMR possesses particular expertise in reviewing applications of this nature and in applying the regulations of the Air Force and the predecessor Army Air Corps and because it is not apparent that the AFBCMR has had a full opportunity to consider the evidence before it which post-dated the Board of Veterans Appeals’ decision, I conclude that a remand is the preferable alternative in this case.

I have considered the plaintiff’s assertion that a remand will impose an unreasonable hardship upon the plaintiff and that the evidence supports a grant of summary judgment for plaintiff. However, upon review of the record, I do not find that the evidence so overwhelmingly supports plaintiff’s position as to justify this court in replacing the AFBCMR as the primary decisionmaker.

Accordingly, I will deny both motions for summary judgment without prejudice and remand this matter to the Secretary of the Air Force and the AFBCMR for reconsideration and development of the record for appeal in light of this opinion.

      . Neither party has addressed the question why a regulation apparently issued in 1944 would be applicable to a serviceman discharged in 1943. However, both parties have stated that if any regulation applies to this case it is AR 40-1025 except that defendant has presented certain limited arguments that AR 40-1025 is inapplicable. Since neither party has suggested that there is any reason for AR 40-1025 not to apply to plaintiff merely because of the time of plaintiff's service and the date of issuance of the regulation, I will not explore that issue.
      With plaintiffs supplemental memorandum of law and the addendum to that memorandum, plaintiff has also provided this court with copies of current Air Force regulations, AFR 35-4 and AFR 160-43. Plaintiff contends that these regulations are not directly applicable to plaintiff’s case but that they may contain information or presumptions which this court would find instructive in determining whether the AFBCMR decision was proper.
      The parties agree that, if the AFBCMR had an obligation to apply presumptions established by military regulations, its obligation was to apply those regulations in force at the time of plaintiffs discharge and that AR 40-1025 is the only such regulation potentially applicable to plaintiffs case. Therefore, in determining whether the AFBCMR committed legal error in failing to apply relevant military regulations, I will consider. only AR 40-1025 and not the more recent Air Force regulations provided by plaintiff.

      . In certain cases, courts have determined that the military board whose decision is under ’review was required by regulation to state specific findings. E.g., Flute v. United States, 210 Ct.Cl. 34, 535 F.2d 624, 628 (1976); VanBourg v. Nitze, 388 F.2d 557, 565 (D.C.Cir.1967); Amato v. Chafee, 337 F.Supp. 1214, 1219 (D.D.C.1972). In those cases the board was required to issue specific findings because it had conducted a hearing on the application. See 32 C.F.R. § 865.12 (AFBCMR must issue written findings following a hearing). Since no hearing was provided in the present case and since plaintiff has not challenged the AFBCMR’s decision not to hold a hearing on his application, I have no basis for concluding that the degree of specificity with which the AFBCMR must present its findings is governed by a regulation having the force of law.

      . Most of the decisions in this area arise in the Court of Claims which has exclusive jurisdiction of all contract actions against the United States where the amount in controversy exceeds $10,-000. 28 U.S.C. §§ 1346(a)(2), 1491.

      . Moreover, the burden visited on plaintiff by remand is no greater than that involved in a wide variety of cases in which remands of this nature are commonplace (e.g., Social Security disability determinations).

      . Should either party seek judicial review of the action of the AFBCMR following this remand, the parties will then have the opportunity to supplement their submissions with regard to the scope, contents and applicability of AR 40-1025 and to produce a complete copy of the language of that regulation.