Baldauf v. Nitze

• Decision Date: 03 November 1966
• Docket Number: Civ. No. 3518.
• Citation: 261 F. Supp. 167
• Parties: Laurence C. BALDAUF, Jr., Plaintiff, v. Paul NITZE, Secretary of the Navy, Defendant.
• Court: U.S. District Court — Southern District of California

261 F. Supp. 167

Laurence C. BALDAUF, Jr., Plaintiff, v. Paul NITZE, Secretary of the Navy, Defendant.

Civ. No. 3518.

United States District Court S. D. California.

November 3, 1966.

Daniel B. Hunter, Mizeur, Leeger & Hunter, San Diego, Cal., for plaintiff.

Edwin L. Miller, Jr., U. S. Atty., Southern Dist. of California, J. William Doolittle, Acting Asst. Atty. Gen., Civil Div., U. S. Dept. of Justice, Washington, D.C., by Fred W. Drogula, Atty., Litigation Section, for defendant.

MEMORANDUM OF DECISION

KUNZEL, District Judge.

Both parties have filed motions for summary judgment upon which a hearing has been held.

Plaintiff alleges his cause of action arises under U.S.Const. amend. XIII, § 1, in that the defendant, by refusing to accept plaintiff's resignation from the United States Navy, imposes upon plaintiff "involuntary servitude."

Defendant asserts that this court does not have jurisdiction in that his acts were purely discretionary. However, where there is a substantial claim that prescribed military procedure violates one's constitutional rights, the district court has jurisdiction to resolve the constitutional question. Reed v. Franke, 297 F.2d 17, 20 (4th Cir. 1961).

At the time the complaint was filed, plaintiff sought a temporary restraining order to prevent his transfer from the United States Naval Air Station at North Island, California, to the United States Naval Air Station at Atsugi, Japan. The motion for temporary restraining order was denied.

Plaintiff, a naval aviator, is now stationed at Atsugi where his duty consists primarily of flyng jet aircraft from overhaul facilities at the naval air station, Atsugi, to the Philippine Islands for use in Vietnam.

Plaintiff, a 1955 graduate of the United States Naval Academy, is now a lieutenant commander in the regular navy. His commission, as do those of all officers, provides in part:

"This commission is to continue in force during the pleasure of the President * * *."

Plaintiff also was graduated from the United States Navy Post Graduate School at Monterey, California, which he attended for two years from 1960-1962, taking courses in naval engineering.

On January 14, 1966, plaintiff submitted his resignation, requesting separation in August of 1966, stating that his reason for resigning was to complete his legal education. No claim of hardship was submitted. The resignation was processed in accordance with SECNAV INSTRUCTION 1920.3D issued by the Secretary of the Navy on June 16, 1964,¹ ALNAV 45-65 issued by the Secretary of the Navy on August 13, 1965,² and NAVOP 10 issued by the Chief of Naval Operations on August 13, 1965.³

In accordance with the foregoing directives, the Board of Officers assigned to consider plaintiff's resignation unanimously recommended that the resignation not be accepted. The Board based its determination upon the acute shortage of navy pilots and the fact that plaintiff had a "unique background of experience" in F8, A4, and F4 jet aircraft. The Chief of Naval Operations (Duties and Powers, 10 U.S.C.A. § 5081 (1962)), adopted the Board's recommendation and directed a letter to plaintiff, dated March 10, 1966, stating that action on his resignation would be deferred for a period of at least 12 months, and that he could resubmit the resignation approximately four months prior to August 1967.

Since the issuance of the directives referred to, two additional directives relative to resignation of officers have been promulgated by the navy; the first, dated October 5, 1966, was issued by the Chief of Naval Operations, and the second, dated October 12, 1966, was issued by the Commandant of the Marine Corps. Both directives defer applications for resignation of certain officers. In both directives it is stated that the reason for deferment of resignation requests by certain officers is because there is a current shortage of officers in the aviation field.

Plaintiff's position is, since there has been no declaration of a "national emergency" by the Presdent or the Congress, these various directives deferring resignation of officers are beyond the constitutional power of the President or those officers delegated to act for him. Plaintiff contends that absent a statute enacted by Congress, the President, acting through the Secretary of the Navy, has no right to require compulsory service of an officer for the reason that the Congress has the sole right to determine who shall serve in the armed forces and in what manner, citing U.S.Const. art. I, § 8, clause 13; concurring opinion of Justice Jackson in Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 644, 72 S.Ct. 863, 96 L.Ed. 1153 (1952); United States v. Macintosh, 283 U.S. 605, 622, 51 S.Ct. 570, 75 L.Ed. 1302 (1931); Bertelsen v. Cooney, 213 F.2d 275, 277 (5th Cir. 1954).

Plaintiff does not and cannot rely upon the holdings in the cited cases, but places his reliance upon language contained in the opinions to the effect —

"While Congress cannot deprive the President of the command of the army and navy, only Congress can provide him an army or navy to command." Sawyer, supra, p. 644, 72 S.Ct. p. 874. "In express terms Congress is empowered `to declare war,' which necessarily connotes the plenary power to wage war with all the force necessary to make it effective; and `to raise * * * armies,' which necessarily connotes the like power to say who will serve in them and in what way." Macintosh, supra, p. 622, 51 S.Ct. p. 574. "It is for Congress to say when, who, to what extent, and how they shall be selected." Bertelsen, supra, p. 277.

In this connection, plaintiff requests the court to make a finding that there is no present national emergency and that none has been declared by the President or the Congress.

Defendant suggests that the Presidential Proclamation No. 2914 of December 19, 1950, 15 Fed.Reg. 9029, declaring a national emergency during the Korean conflict, is still in full force and effect. It is unnecessary to decide whether it is or is not. However, on August 10, 1964, the Congress passed Public Law 88-408, entitled, "JOINT RESOLUTION TO promote the maintenance of international peace and security in southeast Asia.", 78 Stat. 384 (1964),⁴ whereby Congress has expressly provided the President with the power to use our armed forces in the protection of South Vietnam from invasion by the North Vietnamese.

As said before, while it is not considered necessary to determine whether the President has declared a national emergency or whether a national emergency exists, it would be totally unrealistic to find that there is not now an emergency as a result of the Vietnam conflict. The court surely can take judicial knowledge of the fact that we have committed a large joint military force in Vietnam, and furthermore, that there must also be a large military force in the United States to provide relief for the military personnel in Vietnam.

In support of defendant's motion for a summary judgment there has been filed an affidavit of Samuel T. Orme, Captain, U. S. Navy, Director — Officer Distribution Division, Bureau of Naval Personnel, which states in part.

"That as of April 22, 1966, the navy had requirements for approximately 16,700 aviators but only had about 14,900; that, as of July 1, 1966, the Navy had selectively deferred the acceptance of resignations of 665 officers; that of this number 185 are pilots; and the acceptance of the resignations of the 185 pilots selectively retained under the current deferment policy would have had a critical adverse effect on the capability on the U. S. Navy to carry out its assigned mission in southeast Asia."

Historically, it has been universally accepted that an officer of the armed forces of the United States cannot leave the service until his resignation is accepted by the President. The Bureau of Naval Personnel Manual, issued July 1, 1959, contains the following provision: (A similar provision was contained in changes to the manual in 1957, and similar language was contained in predecessor publications)

"C-10326. RESIGNATIONS OF OFFICERS—GENERAL INFORMATION

(1) Officers of the U. S. Navy and Naval Reserve retain their commissions at the pleasure of the President and no terminal dates are established for their commissions. The Secretary of the Navy, by virtue of his authority to act for the President prescribes, by appropriate instructions, such criteria for the voluntary termination of an officer's status as are deemed necessary in the light of current service requirements and the need for maintaining a sound officer corps."

Article 85 of the Uniform Code of Military Justice, 10 U.S.C.A. § 885 (1956), provides in part as follows:

"(b) Any commissioned officer of the armed forces who, after tender of his resignation and before notice of its acceptance, quits his post or proper duties without leave and with intent to remain away therefrom permanently is guilty of desertion." (This provision was first enacted in 1861)

In Mimmack v. United States, 97 U.S. 426, 24 L.Ed. 1067 (1878), the court, in passing upon the question of whether a resignation of an army officer could be withdrawn when once accepted, made the following observation:

"Nothing short of a written resignation to the President or the proper Executive Department, by a commissioned officer of the army, navy or marine corps, and the acceptance of the same duly notified to the incumbent of the office, in the customary mode, will of itself create a vacancy in such an office, or prevent the incumbent, if the President consents, from withdrawing the proposed resignation; in which event the rights, privileges, duties and obligations of the officer remain just as if the resignation had never been tendered.

"Prior to notice that the resignation tendered has been accepted by the President, the officer in such a case may not without leave quit his post or proper duties, nor is he deprived of any of the rights or privileges conferred and enjoyed by

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