Levin v. Gillespie, 33574.
| Decision Date | 03 June 1954 |
| Docket Number | No. 33574.,33574. |
| Parties | LEVIN v. GILLESPIE. |
| Court | U.S. District Court — Northern District of California |
Gladstein, Andersen & Leonard, San Francisco, Cal., for plaintiff.
Lloyd H. Burke, U. S. Atty., Charles Elmer Collett, Asst. U. S. Atty., O. G. Cook, San Francisco, Cal., Judge Advocate Section, 6th Army, for defendant.
The plaintiff, Dr. Levin, has filed a complaint for injunctive relief directed against defendant, Brigadier General James O. Gillespie, Commander, Letterman Army Hospital. This follows in the wake of an order and decree of Chief Judge Michael Roche which provides, in part:
The plaintiff argues that he is entitled to his immediate discharge and that the only regulations applicable are those which require the Commander to "take the action necessary to effect the discharge" promptly. A.R. 615-365, par. 5.
The defendant asserts that the Secretary of the Army must exercise the sole prerogative of entering the discharge of Dr. Levin. He further claims that the files and proceedings have now been sent to the Secretary of the Army and there is nothing upon which the injunctive process might effectively operate insofar as Brigadier General Gillespie is concerned.
The record demonstrates, and it is conceded by defendant, that the Army intends to discharge Dr. Levin under conditions other than honorable.
The plaintiff, Dr. Levin, on November 10, 1952, in seeking a commission in the United States Medical Army Reserve, completed the lengthy form required of all applicants for commission. Included in such form is a "Loyalty Certificate for Personnel of the Armed Forces." DD 98. Such certificate sets forth in its instructions the following alternative for applicants for commission:
"If Federal Constitutional privileges against self-incrimination; i. e., the making of a statement which will expose you to criminal trial, is claimed about all or any part of any conduct, membership or association in question, you may so claim by stating in the space indicated `Federal Constitutional priviledge is claimed' or `Federal Constitutional privilege is claimed as to * * *' describing the specific part of any conduct, membership or association about which claim is made."
In accordance with this alternative, Dr. Levin asserted his constitutional privilege by stating:
"As granted by the Fifth Amendment of the Federal Constitution, I, the undersigned, refuse to answer any of the above questions."
It is the doctor's refusal to complete the loyalty certificate in a detailed manner which has given rise to the Army's determination to grant plaintiff an undesirable...
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Bernstein v. Herren
...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). ......
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McKenzie v. Kirkpatrick, 35301.
...in this district involving the issuance of discharge certificates by the army. St. Helen v. Wyman, D.C., 139 F.Supp. 545; Levin v. Gillespie, D.C.1954, 121 F.Supp. 726; and Marshall v. Wyman, D.C., 132 F.Supp. 169. To avoid confusion it should be noted that the type of discharge to be proff......
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St. Helen v. Wyman, Civ. No. 34160.
...F.Supp. 169, and the issue was decided adversely to the plaintiff. See also Harmon v. Brucker, D.C., 137 F.Supp. 475. Levin v. Gillespie, D.C.N.D.Cal., 121 F.Supp. 726, cited by the plaintiff, is distinguishable from the Marshall case and the case at bar in that the plaintiff Levin had not ......
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La Rose v. Young, Civ. No. 35068.
...for the writ. Compare Nelson v. Peckham, 4 Cir., 210 F.2d 574; Levin v. Gillespie, D.C.N.D.Cal., 121 F.Supp. 239, subsequent opinion, D.C., 121 F.Supp. 726. Petitioner did not choose to pursue that remedy. Since petitioner was effectively inducted into the Army, and since petitioner never a......