Armstrong v. United States

• Decision Date: 30 July 1964
• Docket Number: Civ. No. 3043-C.
• Court: U.S. District Court — Southern District of California
• Parties: Harry F. ARMSTRONG et al., Plaintiffs, v. UNITED STATES of America, Robert S. McNamara, Paul H. Nitze, D. K. Ela, Defendants.

233 F. Supp. 188

Harry F. ARMSTRONG et al., Plaintiffs, v. UNITED STATES of America, Robert S. McNamara, Paul H. Nitze, D. K. Ela, Defendants.

Civ. No. 3043-C.

United States District Court S. D. California, S. D.

July 30, 1964.

Harry F. Armstrong, in pro. per., for plaintiffs.

Francis C. Whelan, U. S. Atty., Donald A. Fareed, Asst. U. S. Atty., Chief of Civil Section, Stephen D. Miller, Asst. U. S. Atty., Los Angeles, Cal., for defendants.

KUNZEL, District Judge.

By his amended complaint, plaintiff seeks to enjoin the United States and the individual defendants, namely: Robert S. McNamara, Secretary of Defense, Paul H. Nitze, Secretary of the Navy, and Captain D. K. Ela, Commanding Officer of the United States Naval Repair Facility, from shutting down the facility at the United States Naval Station, San Diego, California.

Plaintiff alleges he is a service electrician at the repair facility and that his action is a "class" action on behalf of all employees at the facility who are in a like situation with himself.

It is alleged that on December 12, 1963, the Secretary of Defense ordered the closure of the facility, which employed at that time more than 1800 civilian workers and was furnishing emergency and scheduled repair work and modernization to more than 170 ships of the United States Navy, and that plaintiff and other members of the class whom he represents will be damaged by reason of loss of employment, lower classification, injury and sacrifice entailed in moving to a new location.

Plaintiff further alleges that the closing of the facility by the Secretary of Defense was done under the purported authority of 10 U.S.C.A. § 125, and contends that—

1. This section is unconstitutional as being repugnant to Article I, Section 8, Clause 13 of the Constitution, which provides that Congress is "to provide and maintain a Navy," in that it is an unlawful delegation of legislative powers to the executive branch; and

2. Even if the delegation is constitutional, the Secretary has failed to proceed according to its express terms in not prior to the order of discontinuance, reporting to Congress as provided for in Section 125, and is thus subject to mandamus proceedings under 28 U.S.C.A. § 1361.

Section 125, as amended, reads in its relevant parts as follows:

"* * * The Secretary of Defense shall take appropriate action (including the transfer, reassignment, consolidation, or abolition of any function, power, or duty) to provide more effective, efficient, and economical administration and operation, and to eliminate duplication, in the Department of Defense. However, * * * a function, power, or duty vested in the Department of Defense, or an officer, official, or agency thereof, by law may not be substantially transferred, reassigned, consolidated, or abolished unless the Secretary reports the details * * * to the Committees on Armed Services of the Senate and House of Representatives. The transfer, reassignment, consolidation, or abolition concerned takes effect on the first day after the expiration of the first 30 days that Congress is in continuous session after the Secretary so reports. * * *" Emphasis added

Defendants have moved to dismiss.

There is nothing to suggest that...