Harmon, Iii v. Brucker Abramowitz v. Brucker, Nos. 80

CourtUnited States Supreme Court
Writing for the CourtPER CURIAM; CLARK; Prettyman
Citation2 L.Ed.2d 503,355 U.S. 579,78 S.Ct. 433
PartiesJohn Henry HARMON, III, Petitioner, v. Wilber M. BRUCKER, Individually, and as Secretary of the Department of the Army. Howard D. ABRAMOWITZ, Petitioner, v. Wilber M. BRUCKER, Individually, and as Secretary of the Department of the Army
Docket NumberNos. 80,141
Decision Date03 March 1958

355 U.S. 579
78 S.Ct. 433
2 L.Ed.2d 503
John Henry HARMON, III, Petitioner,

v.

Wilber M. BRUCKER, Individually, and as Secretary of the Department of the Army. Howard D. ABRAMOWITZ, Petitioner, v. Wilber M. BRUCKER, Individually, and as Secretary of the Department of the Army.

Nos. 80, 141.
Argued Jan. 14, 15, 1958.
Decided March 3, 1958.

Mr. David I. Shapiro, New York City, for petitioner Harmon.

Mr. Victor Rabinowitz, New York City, for petitioner Abramowitz.

Mr. Donald B. MacGuineas, Washington, D.C., for respondent.

Page 580

PER CURIAM.

The Secretary of the Army, relying upon 10 U.S.C. § 652a1 (Act of June 4, 1920, § 1, Subch. II, 41 Stat. 809, as amended) and 38 U.S.C. § 693h, 38 U.S.C.A. § 693h (Act of June 22, 1944, 58 Stat. 286, as amended), and upon Department of Defense and Army Regulations deemed to be authorized by those statutes, discharged petitioners from the Army and issued to each of them a discharge certificate in form other than 'honorable.' In so doing, he took into account preinduction activities of petitioners rather than basing his action exclusively upon the record of their military service. After having exhausted available administrative remedies, petitioners separately brought these proceedings in the District Court seeking judgments declaring those determinations and actions of the Secretary to be void as in excess of his powers under the circumstances, and directing him to issue 'honorable' discharge certificates to them. Being of the view that it was without jurisdiction to consider the actions, the District Court dismissed them, 137 F.Supp. 475, and the Court of Appeals affirmed with one judge dissenting, 100 U.S.App.D.C. 190, 243 F.2d 613; 100 U.S.App.D.C. 256, 243 F.2d 834. We granted certiorari, 353 U.S. 956, 77 S.Ct. 863, 1 L.Ed.2d 908, and 354 U.S. 920, 77 S.Ct. 1383, 1 L.Ed.2d 1435.

The respective contentions made here may be summarized as follows:

(1) Petitioners contend (a) that the Secretary acted in excess of his powers, because the statutes referred to did not authorize, nor support Department of Defense and Army Regulations when taken to authorize, consideration of petitioners' preinduction activities in determining the type of discharges to be issued to them upon

Page 581

separation from the Army, and (b) that the action of respondent in issuing to them less than 'honorable' discharges, and the action of the District Court and of the Court of Appeals in refusing review for what they thought was lack of judicial power, deprived petitioners of due process under the Fifth Amendment, and of a judicial trial under the Sixth Amendment, of the Constitution;

(2) Respondent contends (a) that by 10 U.S.C. § 652a, Congress required that, upon separation from the Army, a former soldier be given 'a certificate of discharge, * * * in the manner prescribed by the Secretary of the Department of the Army * * *'; (b) that, inasmuch as all certificates of discharge are not required to be 'honorable' ones, he was authorized to, and did, prescribe various types of discharge certificates running the gamut from the accolade of 'Honorable discharge' to the odious 'Dishonorable discharge'; (c) that by 38 U.S.C. § 693h, 38 U.S.C.A. § 693h, Congress directed the establishment of an Army Review Board with power to review, upon its own motion or that of the former soldier, the type of discharge issued, and 'to change, correct, or modify any discharge or dismissal, and to issue a new discharge in accord with the facts presented to the board,' and prescribed that 'the findings thereof (shall) be final subject only to review by the Secretary of the Army'; (d) that the findings of the Board, made under those procedures so afforded to and availed of by petitioners, were final subject only to review by the Secretary of the Army; and (e) that, therefore, such administrative procedure is exclusive and the courts are without jurisdiction to review those findings.

In keeping with our duty to avoid deciding constitutional questions presented unless essential to proper disposition of a case, we look first to petitioners' nonconstitutional claim that respondent acted in excess of powers granted him by Congress. Generally, judicial relief is available to one who has been injured by an act

Page 582

of a government official which is in excess of his express or implied powers. American School of Magnetic Healing v. McAnnulty, 187 U.S. 94, 108, 23 S.Ct. 33, 38, 47 L.Ed. 90; Philadelphia Co. v. Stimson, 223 U.S. 605, 621—622, 32 S.Ct. 340, 345, 56 L.Ed. 570; Stark v. Wickard, 321 U.S. 288, 310, 64 S.Ct. 559, 571, 88 L.Ed. 733. The District Court had not only jurisdiction to determine its jurisdiction but also power to construe the statutes involved to determine whether the respondent did exceed his powers. If he did so, his actions would not constitute exercises of his administrative discretion, and, in such circumstances as those before us, judicial relief from this illegality would be available. Moreover, the claims presented in these cases may be entertained by the District Court because petitioners have alleged judicially cognizable injuries. Cf. Joint Anti-Fascist Refugee Committee v. McGrath, 341 U.S. 123, 159, 160, 71 S.Ct. 624, 642, 95 L.Ed. 817, and see Army Regulation 615—360, par. 7.

This brings us to the merits. The Solicitor General conceded that if the District Court...

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235 practice notes
  • King v. United States, No. 248-65.
    • United States
    • Court of Federal Claims
    • February 16, 1968
    ...in military records when the responsible official has exceeded his statutory or constitutional powers. See, e. g., Harmon v. Brucker, 355 U.S. 579, 78 S.Ct. 433, 2 L.Ed.2d 503 (1958); Van Bourg v. Nitze, 388 F.2d 557 (C.A. D.C., Oct. 17, 1967) No. 20,584); Ashe v. McNamara, 355 F.2d 277 (C.......
  • Martinez v. U.S., No. 99-5163.
    • United States
    • United States Courts of Appeals. United States Court of Appeals for the Federal Circuit
    • June 17, 2003
    ...review of agency action under the APA. The court noted particularly the emphasis placed by the Supreme Court in Harmon v. Brucker, 355 U.S. 579, 78 S.Ct. 433, 2 L.Ed.2d 503 (1958), on judicial review of agency action unless there is clear and convincing evidence that Congress intended to fo......
  • Mellinger v. Laird, Civ. A. No. 70-40.
    • United States
    • United States District Courts. 3th Circuit. United States District Court (Eastern District of Pennsylvania)
    • February 16, 1972
    ...447 F.2d 1085, 1087 (3rd Cir. 1971). 15 See e. g., Smith v. Resor, 406 F.2d 141 (2nd Cir. 1969). 16 See e. g., Harmon v. Brucker, 355 U.S. 579, 78 S.Ct. 433, 2 L.Ed.2d 503 17 See e. g., O'Mara v. Zebrowski, supra note 14. 18 As the Supreme Court noted in Harmon v. Brucker, supra note 16: Th......
  • McClellan v. Shapiro, Civ. No. 13267.
    • United States
    • United States District Courts. 2nd Circuit. United States District Court (Connecticut)
    • April 16, 1970
    ...consider and dispose of the case on the statutory ground, if possible. King v. Smith, supra at 313, 88 S.Ct. 2128. Cf. Harmon v. Brucker, 355 U.S. 579, 581, 78 S.Ct. 433, 2 L.Ed.2d 503 (1958); United States v. Minor, 398 F.2d 511, 514 (1968), aff'd, 396 U.S. 87, 90 S.Ct. 284, 24 L.Ed.2d 283......
  • Request a trial to view additional results
235 cases
  • King v. United States, No. 248-65.
    • United States
    • Court of Federal Claims
    • February 16, 1968
    ...in military records when the responsible official has exceeded his statutory or constitutional powers. See, e. g., Harmon v. Brucker, 355 U.S. 579, 78 S.Ct. 433, 2 L.Ed.2d 503 (1958); Van Bourg v. Nitze, 388 F.2d 557 (C.A. D.C., Oct. 17, 1967) No. 20,584); Ashe v. McNamara, 355 F.2d 277 (C.......
  • Martinez v. U.S., No. 99-5163.
    • United States
    • United States Courts of Appeals. United States Court of Appeals for the Federal Circuit
    • June 17, 2003
    ...review of agency action under the APA. The court noted particularly the emphasis placed by the Supreme Court in Harmon v. Brucker, 355 U.S. 579, 78 S.Ct. 433, 2 L.Ed.2d 503 (1958), on judicial review of agency action unless there is clear and convincing evidence that Congress intended to fo......
  • Mellinger v. Laird, Civ. A. No. 70-40.
    • United States
    • United States District Courts. 3th Circuit. United States District Court (Eastern District of Pennsylvania)
    • February 16, 1972
    ...447 F.2d 1085, 1087 (3rd Cir. 1971). 15 See e. g., Smith v. Resor, 406 F.2d 141 (2nd Cir. 1969). 16 See e. g., Harmon v. Brucker, 355 U.S. 579, 78 S.Ct. 433, 2 L.Ed.2d 503 17 See e. g., O'Mara v. Zebrowski, supra note 14. 18 As the Supreme Court noted in Harmon v. Brucker, supra note 16: Th......
  • McClellan v. Shapiro, Civ. No. 13267.
    • United States
    • United States District Courts. 2nd Circuit. United States District Court (Connecticut)
    • April 16, 1970
    ...consider and dispose of the case on the statutory ground, if possible. King v. Smith, supra at 313, 88 S.Ct. 2128. Cf. Harmon v. Brucker, 355 U.S. 579, 581, 78 S.Ct. 433, 2 L.Ed.2d 503 (1958); United States v. Minor, 398 F.2d 511, 514 (1968), aff'd, 396 U.S. 87, 90 S.Ct. 284, 24 L.Ed.2d 283......
  • Request a trial to view additional results

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