Denby v. Berry

Decision Date12 November 1923
Docket NumberNo. 47,47
Citation263 U.S. 29,68 L.Ed. 148,44 S.Ct. 74
PartiesDENBY, Secretary of the Navy, v. BERRY
CourtU.S. Supreme Court

Mr. Geo. Ross Hull, of Washington, D. C., for plaintiff in error.

Mr. Daniel Thew Wright, of Washington, D. C., for defendant in error.

Mr. Chief Justice TAFT delivered the opinion of the Court.

This was a petition for mandamus filed in the Supreme Court of the District of Columbia by a member and officer of the Naval Reserve Force, as relator, to compel the Secretary of the Navy to revoke an order directing the release of the relator from active service in the Navy and to make an order sending him before a retiring board, with a view to his retirement by the President. The Supreme Court sustained a demurrer to the amended answer of the Secretary and, the latter electing not to plead further, the court issued a mandamus as prayed. The Secretary carried the case on appeal to the Court of Appeals of the District, which affirmed the part of the mandamus directing revocation of the order of release, and reversed the part requiring that the Secretary send the relator before a retiring board. The Secretary brings this writ of error to the judgment of the Court of Appeals. The case involves the construction of the general statutes of the United States applicable to the Naval Reserve Force and the retirement of its officers. We, therefore, have jurisdiction of the writ under section 250, par. 6, of the Judicial Code (Comp. St. § 1227).

The relator, being an officer in the Naval Reserve Force, was ordered before a naval board of medical survey, and on October 14, 1919, was found by that board to be under permanent disability, which was incurred in line of duty and was not the result of his own misconduct. The board recommended that the relator be sent before a retiring board. The Secretary of the Navy forwarded this recommendation to the Bureau of Navigation, the executive bureau of the Navy, disapproved, and directed that 'this officer be ordered to proceed to his home and be released from active duty.' The Bureau of Navigation, on November 17, 1919, accordingly issued to the relator this announcement:

'You are hereby detached from such duty as may have been assigned you; you will proceed to your home and regard yourself honorably discharged from active service in the Navy.'

The relator wrote to the Secretary of the Navy, requesting that his case be referred to a retiring board for consideration, to which the Secretary replied, denying the plaintiff's right either to have his case so considered or to be placed on the retired list. The next day, November 18, 1919, this action was brought.

The Court of Appeals held that, because the relator as Naval Reserve officer, if disabled in the line of duty, was eligible for retirement under the same conditions as provided for regular naval officers, and because no officer of the Navy could under section 1455, R. S. (Comp. St. § 2634), be retired from active service or wholly retired without a full and fair hearing before a Navy retiring board, if he should demand it, the Secretary had retired him from the service in violation of law, and that he could be compelled to revoke his action. This would reinstate him to the status of a Naval Reserve officer in the active service with full pay as such from October 18, 1919.

The Naval Reserve Force was established by the Naval Appropriation Act of August 29, 1916 (39 Stat. c. 417, pp. 556, 587 [Comp. St. § 2900 1/2 a et seq.]). By its provisions, the Naval Reserve Force was to be composed of citizens of the United States who by enrollment therein or transfer thereto should obligate themselves to serve in the Navy in time of war or during an emergency declared by the President. Enrollment was to be for four years. A clothing gratuity was allowed and retainer pay of $12 a year or more according to class was to be paid to those who kept the Secretary advised of their whereabouts. The same grades and ranks were provided up to the rank of Lieutenant Commander as existed in the rank and file of the Navy. The President commissioned the commissioned officers. The Secretary issued warrants to the warrant officers. During peace, or when no national emergency existed, members might be discharged at their own request on return of the clothing gratuity. Members might be ordered into active service in the Navy by the President in time of war, or when in his opinion a national emergency existed, and might be required to perform such service throughout the war, or until the national emergency ceased to exist. Enrolled members were to be subject to the laws, regulations, and orders for the government of the regular Navy only during such time as they might be required in the active service. The members of the Force, when in active service, were entitled to the same pay, allowance, gratuities, and other emoluments as men of the same rank or grade in the regular Navy, but when on inactive duty they were entitled only to what was expressly provided in the act. The Secretary of the Navy was to make all necessary and proper regulations not inconsistent with law for the administration of these Naval Reserve Force provisions.

It is quite evident from the foregoing that members of this force occupied two statuses, one that of inactive duty, and the other of active service. It is further clear that it was within the power of the President and of the Secretary of the Navy acting for him, to change the members of the Reserve Force from one status to the other. The power to call them from inactive duty to actual service was express. The power to order them from actual service to inactive duty was necessarily implied. How this should be done was within the discretion of the President and his alter ego in the Navy Department, the Secretary. United States v. Jones, 18 How. 92, 95, 15 L. Ed. 274. The vesting of the right to make regulations to carry out the act in the Secretary shows that he was to act for the President. As a matter of practice in the department, the method of calling out the members of the Reserve Force and of sending them back to inactive duty, was, by order of the Secretary of the Navy (Gen. Order No. 237 of October 6, 1916), left to the Bureau of Navigation, and under that bureau mobilization and demobilization of the Reserve Force were carried on under special orders and circulars. Orders releasing individuals from active service and putting them on inactive duty were clearly within the power of the President and of the Secretary of the Navy acting for him in the administration of the act. Nowhere is there found any limitation upon the discretion of the Executive in this regard. The orders in such cases were in the nature of military orders by the Commander in Chief in the assignment or withdrawal of available forces to or from duty for the good of the service. Such orders of withdrawal could not and did not make members of the Naval Reserve Force civilians. They did not release them from obligation under their enrollment to render active service again, when ordered to do so by the proper authority. When the Bureau of Navigation detached relator from active duty and told him to go home and regard himself as honorably discharged from active service in the Navy, he was not ousted from the Naval Reserve Force or the Navy. The words 'honorably discharged' were only to advise him and others that the change of his status from active to inactive duty was not because of his fault or misconduct.

The Court of Appeals, however, construed this order to be an effort to retire the relator from the Navy in the sense in which that term is used in section 1455, R. S. (Comp. St. § 2634), which reads as follows:

'No officer of the Navy shall be retired from active service, or wholly retired from the service, without a full and fair hearing before such Navy retiring-board, if he shall demand it, except in cases where he may be retired by the President at his own request, or on account of age or length of service, or on account of his failure to be recommended by an examining board for promotion.'

This section was adopted in 1861 (12 Stat. c. 42, p. 291), and applied to regular...

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30 cases
  • Woodward v. U.S.
    • United States
    • U.S. Court of Appeals — Federal Circuit
    • March 29, 1989
    ...for any reason, release a Reserve officer from active duty.... SECNAVINST 1920.6, p 6(c)(3). The Navy relies on Denby v. Berry, 263 U.S. 29, 44 S.Ct. 74, 68 L.Ed. 148 (1923), to support its position that Woodward's release from active duty was not subject to judicial review. There, the Cour......
  • Cafeteria and Restaurant Workers Union, Local 473 v. Elroy
    • United States
    • U.S. Supreme Court
    • June 19, 1961
    ...776, 39 L.Ed. 914; United States Grain Corp. v. Phillips, 261 U.S. 106, 109, 43 S.Ct. 283, 284, 67 L.Ed. 552; Denby v. Berry, 263 U.S. 29, 37, 44 S.Ct. 74, 77, 68 L.Ed. 148.4 We may take it as settled that Navy Regulations approved by the President are, in the words of Chief Justice Marshal......
  • Fisher v. U.S.
    • United States
    • U.S. Court of Appeals — Federal Circuit
    • March 9, 2005
    ...two early Supreme Court decisions, Reaves v. Ainsworth, 219 U.S. 296, 31 S.Ct. 230, 55 L.Ed. 225 (1911) and Denby v. Berry, 263 U.S. 29, 44 S.Ct. 74, 68 L.Ed. 148 (1923), neither of which, the Government argues, were properly considered in the cases cited in support of this court's preceden......
  • United States v. Malanaphy
    • United States
    • U.S. Court of Appeals — Second Circuit
    • June 2, 1948
    ...an "instruction," § 334 must be considered a "regulation" to which 34 U.S. C.A. § 591 "gives the force of law." Denby v. Berry, 263 U.S. 29, 37, 44 S.Ct. 74, 77, 68 L.Ed. 148. So considered, it does not conflict with Article 14 Eleventh (Trial of offender after discharge), 34 U.S.C.A. § 120......
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1 books & journal articles
  • Naturalizing through military service: who decides?
    • United States
    • Georgetown Immigration Law Journal No. 36-3, July 2022
    • July 1, 2022
    ...separation when the military acted under its statutory authority); Creary v. Weeks, 259 U.S. 336 (1922) (same); Denby v. Berry, 263 U.S. 29 (1923) (f‌inding that the military acted within its statutory authority to discharge a naval off‌icer); Patterson v. Lamb, 329 U.S. 539 (1947) (same). ......

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