Bernstein v. Herren

• Decision Date: 04 January 1956
• Parties: Theodore BERNSTEIN, Stanley Hauser, Bertram Lessuck, David Lubell, Jonathan Lubell, Bernard Radoff, Samuel Suckow, Rudolph Thomas, Inductees in the Army of the United States, Plaintiffs, v. Lieutenant General Thomas W. HERREN, Commanding General, First Army, Fort Jay, Governor's Island, New York, Defendant.
• Court: U.S. District Court — Southern District of New York

136 F. Supp. 493

Theodore BERNSTEIN, Stanley Hauser, Bertram Lessuck, David Lubell, Jonathan Lubell, Bernard Radoff, Samuel Suckow, Rudolph Thomas, Inductees in the Army of the United States, Plaintiffs, v. Lieutenant General Thomas W. HERREN, Commanding General, First Army, Fort Jay, Governor's Island, New York, Defendant.

United States District Court S. D. New York.

November 18, 1955.

Supplemental Opinion January 4, 1956.

COPYRIGHT MATERIAL OMITTED

Albert L. Colloms, Stanley Faulkner, New York City, for plaintiffs.

Paul W. Williams, U. S. Atty., S.D. New York, New York City, by Harold J. Raby, New York City, of counsel, for defendant.

EDELSTEIN, District Judge.

Plaintiffs, inductees now serving in the Army at Fort Dix, New Jersey, have sued for a declaratory judgment concerning their discharge rights, and have moved for a preliminary injunction restraining the defendant from taking proceedings against them under regulation AR 604-10 (July 29, 1955). The defendant has cross-moved for dismissal under Fed.Rules Civ.Proc. rule 12(b) (6), 28 U.S.C.A., on the ground that plaintiffs have failed to exhaust their administrative remedies, and under Rule 12(b)(1), on the ground that the person named as defendant is without authority over the subject matter of the suit.

The complaint is directed at the conduct by the Army of certain proceedings under AR 604-10, leading possibly to the termination of plaintiffs' Army service with discharges other than honorable. It is alleged that such discharges are threatened solely on the basis of facts and occurrences existing prior to plaintiffs' inductions, despite their satisfactory and honorable service. And it is further alleged that so much of the regulation as deals with termination of service on the basis of acts prior to induction is invalid.

The motion to dismiss the complaint on the ground that it fails to state a claim upon which relief can be granted, in that plaintiffs have failed to exhaust their administrative remedies, stands in the posture of admitting the well-pleaded material allegations of the complaint. Consequently, for the purposes of the motion to dismiss under Rule 12(b) (6), the following facts are deemed admitted: that proceedings have been instituted pursuant to AR 604-10 to determine the suitability of plaintiffs for retention in the Army; that during the plaintiffs' entire military careers they have conducted themselves in an exemplary fashion with character and efficiency rates of at least excellent; and that the allegations or charges against them involve conduct, lawful when performed, which pre-dates their inductions under the Universal Military Training and Service Act, 50 U.S.C.A. Appendix, § 451 et seq. (except that in those cases of kinship and association the kin referred to are presently alive and the other associates mentioned may be alive).

It is true that under AR 604-10 the field board hearings scheduled¹ are merely first steps in an administrative process which ends with recommendations of the Department of the Army Review Board in Washington, and the plaintiffs have failed to make any attempt to exhaust this administrative process.² But a well-recognized exception to the requirement of the exhaustion of administrative remedies exists where the action of the administrative body is jurisdictionally defective, in violation of the plaintiffs' legal rights under statute. Skinner & Eddy Corp. v. United States, 249 U.S. 557, 39 S.Ct. 375, 63 L.Ed. 772; Fitzpatrick v. Snyder, 1 Cir., 220 F.2d 522; Dragna v. Landon, 9 Cir., 209 F.2d 26; United States ex rel. DeLucia v. O'Donovan, 7 Cir., 178 F.2d 876; Wettre v. Hague, 1 Cir., 168 F.2d 825. And it is the claim of the plaintiffs that they have a statutory right to be considered for discharge strictly on the basis of the merits of their military service, without being put in jeopardy of a less than honorable discharge on the basis of anything extraneous to that service.

Legislation on the subject of discharge³ leaves the matter largely to be dealt with by regulation, and there is no contention that the Secretary of the Army may not establish appropriate procedures. But it is contended that the procedure under AR 604-10, in so far as it purports to authorize proceedings based upon conduct antedating induction, is not authorized and is illegal. With this position, on the basis of the assumptions made, I am in agreement. An honorable discharge encompasses a property right, as well as civil rights and personal honor. United States ex rel. Roberson v. Keating, D.C., 121 F. Supp. 477. If an honorable discharge were denied to a soldier with an unexceptionable service record, on the basis merely of pre-induction conduct, it would in my opinion be a deprivation of property without due process of law, and a regulation establishing a procedure for effecting such a denial could not be authorized by statute. In a different context the Supreme Court has said, "* * * the constitutional guarantee of due process is meaningful enough, and sufficiently adaptable, to protect soldiers * * * from * * * crude injustices * * *." Burns v. Wilson, 346 U.S. 137, 142, 73 S.Ct. 1045, 1049, 97 L.Ed. 1508. An honorable discharge is a formal final judgment on the military record of a soldier. United States v. Kelly, 15 Wall. 34, 82 U.S. 34, 21 L.Ed. 106; In re Fong Chew Chung, 9 Cir., 149 F.2d 904; Ex parte Drainer, D.C., 65 F.Supp. 410, affirmed, 9 Cir., 158 F.2d 981; Griffin v. United States, D.C., 115 F.Supp. 509. It would seem basic, therefore, that a soldier has a right to an honorable discharge if his military record merits it and that he cannot be held to answer, in the consideration of his discharge, for matters extraneous to that record.⁴ It has recently been held by the Supreme Court, in United States ex rel. Toth v. Quarles, 76 S.Ct. 1, that after the discharge of a soldier he cannot even be held by the Army to a trial for a crime alleged to have been committed while he was in the service. It is certainly not contended that the Army could try a soldier for a crime alleged to have been committed prior to his entry upon service. Yet to put a soldier in jeopardy of a less than honorable discharge for acts committed prior to induction — and for acts which were not criminal — is scarcely less offensive to our notions of rudimentary fairness. A procedure which postulates pre-induction civilian conduct as the basis for a less than honorable discharge could not be countenanced and it must be concluded that such a procedure is legislatively unauthorized. Therefore, on the basis of the assumptions involved in a motion to dismiss under Rule 12(b) (6), that the plaintiffs are being held to answer by the Army for their prior civilian conduct under the procedure of AR 604-10, leading to the possible consequence of discharges less than honorable, I conclude that there is a clear violation of their rights rendering unnecessary the exhaustion of administrative remedies.

The defendant has also moved to dismiss on the ground of lack of jurisdiction over the subject matter, in that the conduct of a field board of the Army⁵ insofar as the plaintiffs are concerned is not subject to the control of the defendant in this suit. The defendant is being sued in his official capacity as Commander of the First Army, with headquarters in this district. The field boards have apparently been called by order of the plaintiffs' Commanding Officer, the Commanding General at Fort Dix, New Jersey, not within this district. It is urged that it is the latter officer who should have been made the defendant. In support of this part of the motion to dismiss, an affidavit has been submitted by counsel, on information and belief, concerning the defendant's lack of authority. Thus, considering the motion as a "speaking motion" under Rule 12(b) (1), 2 Moore's Federal Practice, 2256, 2d ed., it must fail, for the affidavit is ineffective to establish the claimed lack of authority by the defendant. The essential averments in the affidavit are not only without personal knowledge but they are largely conclusory in nature. And even considering AR 604-10 to be the proper procedural reference, an analysis of that regulation leaves it far from clear that the defendant is as devoid of authority as claimed.

Finally, it is argued that the failure to join the Secretary of the Army, at whose instance final action would be taken under AR 604-10, is a failure to join an indispensable party, an incurable defect because the Secretary's residence is in the District of Columbia. Under Williams v. Fanning, 332 U.S. 490, 68 S.Ct. 188, 92 L.Ed. 95, and Shaughnessy v. Pedreiro, 349 U.S. 48, 75 S.Ct. 591, that contention is without merit. The distinction is urged that an injunction against the defendant would call for an affirmative act which he is powerless to perform. As already indicated, it is not at this time clear that he lacks the necessary power. It is furthermore not clear at this time that a mandatory act on the part of the defendant would be required, on the ground that a restraint upon the defendant may well operate on his subordinates as his agents. In any event, this court has the power, in the appropriate circumstances, to issue a mandatory injunction, Trautwein v. Moreno Mut. Irr. Co., 9 Cir., 22 F.2d 374, and there is no present basis for holding that such a process would be ineffective against the officer now before the court. Cf. Levin v. Gillespie, D.C., 121 F.Supp. 726.

The motion for a preliminary injunction stands in an entirely different posture from the motion to dismiss under Rule 12(b) (6). It is familiar and elementary law that "the granting of a preliminary injunction is an exercise of a very far-reaching power, never to be indulged in except in a case clearly demanding it. * * * To justify the granting of such an injunction there must be a showing of irreparable injury during the pendency of the action." Warner Bros. Pictures v. Gittone, 3...