Dunmar v. Ailes

• Decision Date: 20 May 1965
• Docket Number: No. 18997.,18997.
• Parties: John H. DUNMAR, Appellant, v. Stephen AILES, Secretary of the Army, Appellee.
• Court: U.S. Court of Appeals — District of Columbia Circuit

121 US App. DC 45, 348 F.2d 51 (1965)

John H. DUNMAR, Appellant, v. Stephen AILES, Secretary of the Army, Appellee.

No. 18997.

United States Court of Appeals District of Columbia Circuit.

Argued February 10, 1965.

Decided May 20, 1965.

Mr. Paul R. Connolly, Washington, D. C., with whom Mr. James E. Murray, Washington, D. C., was on the brief, for appellant.

Mr. Jerome Nelson, Asst. U. S. Atty., with whom Messrs. David C. Acheson, U. S. Atty., Frank Q. Nebeker and Joseph M. Hannon, Asst. U. S. Attys., were on the brief, for appellee.

Before FAHY, BURGER and McGOWAN, Circuit Judges.

PER CURIAM.

This is an appeal from an order of the District Court dismissing Dunmar's complaint for lack of jurisdiction and alternatively granting Appellee's motion for summary judgment if jurisdiction exists. The effect of the District Court's order is to leave standing the action of Appellee as Secretary of the Army separating Appellant from the Corps of Cadets, U. S. Military Academy, for a violation of the Cadet Honor Code. Appellant alleged that the Secretary's separation order was invalid because based on proceedings which were inconsistent with procedural due process¹ and which violated rules and regulations of the Army and the Academy; that the Honor Code was too vague to supply a constitutional predicate for Appellant's separation; and that in any event the Secretary of the Army lacks the power to effect the administrative separation of Appellant, that power residing only in the President.

We hold first that the District Court had jurisdiction over the subject matter of each of Appellant's allegations. Harmon v. Brucker, 355 U.S. 579, 78 S.Ct. 433, 2 L.Ed.2d 503 (1958), establishes such power over allegations reciting action in excess of statutory authority and our own decisions in Ingalls v. Zuckert, 114 U.S.App.D.C. 39, 309 F.2d 659 (1962), and Roberts v. Vance, 119 U.S.App.D.C. ___, 343 F.2d 236, June 18, 1964, have recognized that the District Court may review actions by military authorities which violate their own established regulations.

We turn to the District Court's alternative holding granting summary judgment in favor of Appellee. We conclude the District Court was warranted on this record.

Two sections of the Academy's Regulations are involved here. Regulation 17.13 provides generally for separations for violations of the Cadet Honor Code as follows:

Cadets who violate the Cadet Honor Code will be separated from the Corps of Cadets. Such cadets may, at the discretion of the Superintendent, be allowed to resign, be tried by courts-martial, or be brought before a board of senior officers convened by the Superintendent to investigate the matter and to make findings and recommendations. * * * If the cadet appears before a Board of Officers and the Superintendent subsequently considers his separation warranted he shall refer the case to the Academic Board. If the Academic Board, upon review of the case, recommends separation, the Superintendent shall forward such recommendation to the Department of the Army.

No provision is made for the representation by counsel of a Cadet charged with violating the Honor Code, nor is he expressly assured of any opportunity of making his views known to the Academic Board. The other pertinent Regulation is 9.09, which describes the procedure for separating a Cadet "for undesirable habits or traits of character":

When a cadet exhibits habits or traits of character which appear to render his retention at the Academy undesirable, it shall be the duty of the Superintendent to report in writing such fact to the Academic Board, with a full statement of the facts upon which his report is based. This step shall be taken with view to ascertaining the Board\'s recommendation as to whether such cadet shall be separated from the Academy. Any cadet so reported shall be furnished a copy of the Superintendent\'s report in his case, with reference to which a cadet may submit a statement in writing which shall be fully considered by the Board.

Like Regulation 17.13, this paragraph contains no provision for the assistance of counsel, or for the presentation of evidence, or for cross-examination of witnesses.

We note at the outset that the record is barren of any evidence that the procedure followed in this case was out of the ordinary or did not conform to the usual practices of the Academy. The proceedings appear to have had aspects of each of those outlined in the regulations,² but the protections afforded Appellant went substantially beyond those expressly provided for in either paragraph. Following the recommendation of the Cadet Honor Committee, before which he appeared in person, that Appellant be separated from the Corps of Cadets, he was given the option of resigning or appearing before a board of senior officers, and after consulting his family and his counsel, he chose the latter alternative. Throughout the subsequent proceedings Appellant was represented by counsel, who was a member of the Academy Department of Law and a lawyer. He was given a seven-day continuance before appearing before the board of officers, in order that he could prepare his case. Before the board he was allowed to cross-examine witnesses, to present nine witnesses of his own, and to make a closing argument. He testified on his own behalf, but only after being warned of his privilege to remain silent. Following referral of his case to the Academic Board, which made the final recommendation that he be separated, Appellant filed a brief with that body, though he did not appear before it in person. There is no suggestion that the Academic Board relied on evidence of which Appellant was not aware, or that it failed to consider his brief.

We are unable to spell out of these proceedings anything like the disregard for procedural rights at which the Fifth Amendment is directed. Certainly we cannot say, after carefully reviewing the record, that Appellant's separation from the military service was accomplished by procedures that failed to meet the minimum standards of fundamental fairness.³

In holding that Appellant has no complaint calling for judicial redress we need not — and we do not — undertake to formulate standards of procedural due process generally applicable to Cadets or other personnel of the military establishment. There is no occasion for us to reach out to articulate or intimate what process may be due in the myriad of varying situations ranging from Cadet training to front line combat; this wide range can call for different degrees of process. It is sufficient...