Marshall v. Wyman

• Decision Date: 04 June 1955
• Docket Number: No. 34533.,34533.
• Citation: 132 F. Supp. 169
• Court: U.S. District Court — Northern District of California
• Parties: Charles H. MARSHALL, Plaintiff, v. Lt. Gen. W. G. WYMAN, Maj. Gen. Edwin K. Wright et al., Defendants.

132 F. Supp. 169

Charles H. MARSHALL, Plaintiff, v. Lt. Gen. W. G. WYMAN, Maj. Gen. Edwin K. Wright et al., Defendants.

No. 34533.

United States District Court N. D. California, N. D.

June 4, 1955.

COPYRIGHT MATERIAL OMITTED

Dreyfus & McTernan, San Francisco, Cal., Daniel G. Marshall, Los Angeles, Cal., for plaintiff.

Lloyd H. Burke, U. S. Atty., Charles Elmer Collett, Asst. U. S. Atty., San Francisco, Cal., for defendants.

ROCHE, Chief Judge.

This is an action for an injunction and declaratory relief brought by Charles H. Marshall against Lt. Gen. W. G. Wyman, Commanding General of the 6th Army of the United States, which has headquarters in San Francisco, and Maj. Gen. Edwin K. Wright, Commanding General of the 6th Infantry Division, Fort Ord, California, the headquarters of which is in the County of Monterey in this state.

The facts of this case are as follows: Plaintiff was inducted into the Army of the United States at Los Angeles, California, on August 10, 1953 under the provisions of the Selective Service Act. At all times he served in the capacity of a private.

After his induction plaintiff was asked to fill out a document entitled "Loyalty Certificate for Personnel of the Armed Forces", identified therein as DD 98. Plaintiff made the following entry under the designation "remarks," "Federal Constitutional privilege is claimed", and signed said certificate. Plaintiff also claimed his Federal constitutional privilege in filling out Form 98a and item 16, DD Form 398.

Under authority of Special Regulation 600-220-1 issued by order of the Secretary of the Army on June 18, 1954 and entitled "Military Personnel Security Program", the Adjutant General of the Army, by order of the Secretary of the Army caused a written communication to be delivered to plaintiff on June 19, 1954 which stated in part:

"1. Derogatory information has been received in this office which reveals the following:

"That you * * *

"a. Are believed to be a Communist sympathizer.

"b. Refused to complete DD Forms 98 and 98a and item 16, DD Form 398, claiming Federal Constitutional Privilege.

"c. Have a father, Daniel G. Marshall who is a Communist sympathizer and has membership in or is affiliated with the National Lawyers Guild and the Civil Rights Congress.

"d. Have a mother, Dorothy Nell Marshall, who is active in Communist Party Functions.

"2. You are advised that you have seven (7) days from date of receipt, in which to make rebuttal in writing of the above mentioned allegations, or to advise this office whether you do or do not desire to appear in person before a board of officers which will be convened to hear your case."

On June 21, 1954, but without prejudice to his rights, plaintiff demanded of the Adjutant General by written communication that a board of officers be convened to hear his case. Pursuant to plaintiff's request he appeared before a board of officers at Fort Ord, California on August 2, 1954. The board informed plaintiff that its mission was to afford him a fair and impartial hearing with regard to the requirement that he show cause why he should not be eliminated from the Army, and to determine from the evidence presented the course of action which would best serve the interest of the Government without jeopardizing the rights of plaintiff.

Thereupon the board proceeded with the hearing and during its course informed plaintiff that certain confidential information in its possession would be considered by the board. Upon being so informed, plaintiff demanded that said confidential information be disclosed to him. This request was refused, but at plaintiff's insistence the board agreed to request specific authority to do so of the Assistant Chief of Staff, G-2, United States Army, as provided in SR XXX-XXX-X, Section 5(a) (1) issued June 10, 1954 by order of the Secretary of the Army. Thereupon said hearing was brought to a close to be reconvened on its further order to plaintiff.

On February 7, 1955 the board was reconvened at Ft. Ord, California, and plaintiff was there informed that a summary of the confidential information was then and there available to be read by him, but plaintiff was ordered not to make a copy or transcript of it. Plaintiff and his counsel then read the document. No witnesses were called at this hearing, and the reconvened hearing was thereupon closed on February 7, 1955. On February 18, 1955 a transcript of said hearing and reconvened hearing was delivered to plaintiff by the Board. On April 4, 1955 plaintiff, upon his request, received a copy of the summary of confidential information used at the hearing.

On March 26, 1955, Colonel Bloss, Commanding Officer of the 6023D S. U., Personnel Center, ordered plaintiff's undesirable discharge from the army. Colonel Bloss had received the command to discharge from Major General Wright who had in turn received the original order to discharge from G. R. Morris, Acting Assistant Adjutant General.

The evidence discloses, and the court finds that plaintiff had actual notice of his discharge from the Army on Saturday morning, March 26, 1955, and that said notice was specific at 12:10 P. M. when Lt. Anello stated to him that he was discharged and Lt. Huntley escorted him from the post. Since plaintiff refused to sign the report of separation, the Army immediately mailed his separation papers to his home.¹

On March 26, 1955 an order to show cause and a temporary restraining order was served on the defendants named in this case, restraining them, pending further order of the court, from:

1. Issuing to plaintiff, in effectuating the discharge of plaintiff from the United States Army a certificate of undesirable discharge;

2. Effectuating the discharge of plaintiff from the United States Army except with a certificate of honorable discharge.

It is the court's view that this restraining order was not served upon defendants until after plaintiff had already been discharged from the Army.

The complaint herein is entitled "Complaint for Injunction and Declaratory Relief" and is divided into two causes of action.

The first cause of action looks to injunctive relief. The prayer for judgment on this cause is (1) that defendants be restrained and enjoined from (a) issuing to plaintiff, in effectuating the discharge of plaintiff from the United States Army, a certificate of undesirable discharge (b) effectuating the discharge from the United States Army except with a certificate of honorable discharge.

The second prayer for relief prays judgment against defendants declaring the rights and obligations of the parties in the premises.

Defendants have moved to dismiss the complaint herein on several grounds: (1) the court lacks jurisdiction of the subject matter; (2) the plaintiff has failed to join indispensable parties; (3) there are other administrative remedies of which plaintiff has not availed himself; (4) the action is moot.

The defendants propose that this court lacks jurisdiction of the subject matter of this suit in that plaintiff is seeking to interfere with "legitimate Army matters", Orloff v. Willoughby, 1953, 345 U.S. 83, at page 93, 73 S.Ct. 534, at page 540, 97 L.Ed. 842.

In view of the fact that plaintiff has already been discharged from the service the injunctive relief prayed for is beyond the scope of relief this court may grant. Even if plaintiff is considered not to have been discharged prior to the service of this court's injunctive order, it is the court's view that it does not have the power to compel the army to proffer only an honorable discharge to plaintiff. The type of discharge that plaintiff is entitled to must be decided upon by the officers in whom this power resides. This court has no jurisdiction to predetermine or to review such decision. Davis v. Woodring, 1940, 72 App. D.C. 83, 111 F.2d 523; Patterson v. Lamb, 1947, 329 U.S. 539, 67 S.Ct. 448, 91 L.Ed. 485; Gentila v. Pace, 1951, 90 U.S.App.D.C. 75, 193 F.2d 924.

The reason for this is that plaintiff is actually seeking by way of injunction, relief in the nature of mandamus, to compel the defendants to take action in accordance with the hoped-for declaration by this court that the army must honorably discharge plaintiff. The rule as set forth in the cases concerning mandamus jurisdiction of the district court, is that the court may issue writs of mandamus when necessary to the exercise of its jurisdiction but not as original writs in any case. In this state of the law, the writ when issued would necessarily be auxiliary or ancillary in character and fashioned to preserve the jurisdiction given by other and original processes. Palmer v. Walsh, D.C., 1948, 78 F.Supp. 64; Petrowski v. Nutt, 9 Cir., 1947, 161 F.2d 938.

Further, the 1948 revision of the Judicial Code, 28 U.S.C.A. § 1331, does not indicate that Congress thereby intended to enlarge the jurisdiction of the district courts so as to vest in them general original jurisdiction in cases of mandamus. Since the 1948 revision, the courts have adhered to the view that Congress has not vested in the district courts original jurisdiction in cases of mandamus, without any suggestion that the revised jurisdictional phraseology wrought any change. Howell v. Brown, D.C., 1949, 85 F.Supp. 537; McCarthy v. Watt, D.C., 1950, 89 F.Supp. 841; Breiner v. Kniskern, D.C., 1950, 90 F.Supp. 9.

Thus it is clear that the district court does not have general original jurisdiction in cases of mandamus. Marshall v. Crotty, 1 Cir., 1950, 185 F.2d 622. That jurisdictional limitation has been accepted as settled in the cases following: Covington & Cincinnati Bridge Co. v. Hager, 1906, 203 U.S. 109, 27 S.Ct. 24, 51 L.Ed. 111; Barber v. Hetfield, 9 Cir., 1925, 4 F.2d 245; Torre v. Fulton, 1 Cir., 1928, 28 F.2d 1020; Ballf v. Kranz, 9 Cir., 1936, 82 F.2d 315, certiorari denied, 1936, 299 U.S. 549, 621, 57 S.Ct. 12, 81 L.Ed. 404; Youngblood v. United States, 6 Cir., 1944, 141 F.2d 912; United States ex rel. Vassel v. Durning, 2 Cir....