Reed v. Franke

• Decision Date: 07 November 1961
• Docket Number: No. 8270.,8270.
• Citation: 297 F.2d 17
• Parties: Milton C. REED, Chief Storekeeper, U. S. Navy, Appellant, v. Honorable W. B. FRANKE, Secretary of the Navy, Rear Admiral F. M. Hughes, Commandant Fifth Naval District, and Commander Robert A. Mayo, U. S. Navy, Flag Administrative Unit, Commander-in-Chief Atlantic Fleet Headquarters, Appellees.
• Court: U.S. Court of Appeals — Fourth Circuit

297 F.2d 17 (1961)

Milton C. REED, Chief Storekeeper, U. S. Navy, Appellant, v. Honorable W. B. FRANKE, Secretary of the Navy, Rear Admiral F. M. Hughes, Commandant Fifth Naval District, and Commander Robert A. Mayo, U. S. Navy, Flag Administrative Unit, Commander-in-Chief Atlantic Fleet Headquarters, Appellees.

No. 8270.

United States Court of Appeals Fourth Circuit.

Argued March 30, 1961.

Decided November 7, 1961.

Vincent A. Bertolini, Norfolk, Va., for appellant.

Roger T. Williams, Asst. U. S. Atty., Richmond, Va. (Joseph S. Bambacus, U. S. Atty., Richmond, Va., on brief), for appellees.

Before SOBELOFF, Chief Judge, and SOPER and BOREMAN, Circuit Judges.

BOREMAN, Circuit Judge.

Plaintiff, Milton C. Reed, challenges the right of certain officers of the United States Navy to separate him from naval service with a general discharge under honorable conditions. This appeal is from an order of the United States District Court for the Eastern District of Virginia setting aside prior restraining orders and denying plaintiff's request for a permanent injunction to prevent the defendants from so discharging him. For the reasons hereinafter stated, we are of the opinion that the District Court should be affirmed in its denial of a permanent injunction.

The pertinent facts are stated in the opinion of the District Court, reported at 187 F.Supp. 905. Reed, a Chief in the United States Navy with over eighteen years of service to his credit when this suit was brought, is under an enlistment which will not expire until March 21, 1962, at which time he will, unless sooner separated, have served sufficient time to permit his retirement with a pension. On May 24, 1960, Reed was notified by the defendant, Commander Mayo, that he was being considered for an administrative discharge by reason of unsuitability. Reed submitted a letter in support of his contention that he was not an alcoholic, and thus not unsuitable, although he freely conceded that he "occasionally overindulged" and that, in December 1959 and again in May 1960, he was properly convicted by court martial of operating an automobile when under the influence of intoxicants, such operations resulting in accidents occurring on Government property.

Prior to December 1959, on several occasions Reed had been observed under the influence of intoxicants and was warned by his Division Officer. Following his conviction by a summary court martial on December 14, 1959, plaintiff was restricted and forfeited $150 for one month. He was warned by his Executive Officer, Medical Officer and Commanding Officer that he should abstain from drinking alcoholic beverages since it was apparent that he was unable to drink moderately.

On April 11, 1960, an automobile driven by Reed while he was under the influence of intoxicants collided with an automobile occupied by Vice Admiral Sabin, Chief of Staff, Supreme Allied Command, Atlantic Fleet. Reed was hospitalized and his case was diagnosed as chronic alcoholism. On May 20, 1960, he was convicted by a special court martial and was sentenced to restriction within certain limits for four months and forfeiture of $150 per month for a like period. That sentence was later modified.

On June 10, 1960, Commander Mayo, having reviewed the record of plaintiff, including an incident which occurred on November 2, 1956,¹ recommended that the plaintiff be discharged from naval service by reason of unsuitability. On July 6, 1960, the Chief of Naval Personnel directed that plaintiff be separated with a general discharge, under honorable conditions, by reason of unsuitability with the "reason not to be shown" on the discharge certificate. On July 28, 1960, this injunction action was commenced, and the next day a temporary restraining order was entered which was thereafter continued pending final hearing.

The defendants, appearing in the name of the United States, filed a motion for summary judgment or, in the alternative, for dismissal. Plaintiff likewise filed a motion for summary judgment. To determine the facts, the court heard evidence and found as follows:

"* * * Other than his drinking habits, there is nothing in the record reflecting that plaintiff is otherwise unsuitable for naval service. Plaintiff, while denying the diagnosis of alcoholism, admits that he has, from time to time, consumed alcoholic beverages to an excess. The medical records, upon which the recommendation of the defendant, Mayo, was in part based, furnish the best evidence of the diagnosis, and the testimony of plaintiff\'s friends and associates is not of great value in this regard.

"While plaintiff was represented by counsel at the special court martial, no formal hearing was conducted on the administrative discharge. He was permitted, and availed himself of the opportunity, to transmit a letter outlining his objections to such administrative action." 187 F. Supp. at 907.

The District Court held that it lacked jurisdiction on two grounds, namely, (1) plaintiff failed to exhaust his administrative remedies, and (2) the facts of the case preclude the exercise of jurisdiction. Reed's principal contention is that an honorable discharge is a valuable property right² and that, under the Constitution, he may not be deprived of this right except in accord with due process of law as required by the Fifth Amendment. He asserts that a hearing prior to discharge, under the facts of this case, is a requirement of due process. The principal constitutional claim, as we understand it, is not that plaintiff has a right to stay in the Navy until he has served sufficient time to retire with a pension. Such claim, if asserted, would be frivolous and would provide no basis for the court's jurisdiction to interfere with the normal operations of the military services.

Plaintiff cites Harmon v. Brucker, 355 U.S. 579, 78 S.Ct. 433, 2 L.Ed.2d 503 (1958), and Burns v. Wilson, 346 U.S. 137, 73 S.Ct. 1045, 97 L.Ed. 1508, rehearing denied, 346 U.S. 844, 74 S.Ct. 3, 98 L.Ed. 363 (1953), in support of his contention that the court below had jurisdiction. In both of these cases, however, all other possible remedies had been exhausted prior to invoking jurisdiction of the District Court. In Harmon v. Brucker, supra, the Supreme Court construed language in an Army regulation which had been previously construed by the Secretary of the Army in a manner beyond his statutory grant of authority. It is plain that there was no reason for judicial action until after there had been an administrative construction of the regulation. In reversing the lower courts, which had held that the District Court lacked jurisdiction, the Supreme Court said, 355 U.S. at 582, 78 S.Ct. at 435:

"* * * 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, 95 L.Ed. 817 * * *."

Though there is no majority opinion in Burns v. Wilson, supra, the opinion written by Chief Justice Vinson and concurred in by three other justices states that District Courts have authority to protect a person's constitutional rights if the military authorities fail to protect them. That was a habeas corpus proceeding, however, and quite different factually from the instant case.

The District Court below had jurisdiction to determine its jurisdiction and also to decide the merits of plaintiff's claim of violation of constitutional rights. If the claim were well founded, the Navy would have no authority to proceed with the discharge as contemplated, and judicial relief from this illegality would be available. The constitutionality of the discharge procedure is a justiciable issue but once the plaintiff's claim is found and declared to be without merit, the discharge procedure may continue as before. Here, as in Harmon v. Brucker, there is no direct judicial review of the administrative proceedings except insofar as necessary to determine the legality of prescribed administrative procedure. It is the basic procedure that is attacked and which may be reviewed.

The District Court cited three cases to support its holding that it had no jurisdiction: Michaelson v. Herren, 242 F. 2d 693 (2d Cir. 1957); Berstein v. Herren, 141 F.Supp. 78 (S.D.N.Y.), affirmed on other grounds, 234 F.2d 434 (2d Cir.), certiorari denied, 352 U.S. 840, 77 S.Ct. 60, 1 L.Ed.2d 57 (1956); and Bolger v. Marshall, 90 U.S.App.D.C. 30, 193 F.2d 37 (D.C.Cir.1951). None of these cases involves a substantial constitutional claim³ and each is thus distinguishable from the instant case. It is true that dicta in District Judge Ryan's opinion in Berstein v. Herren support the contention that the District Court in this case lacked jurisdiction. We do not, however, consider that case controlling or persuasive. The Court of Appeals, in reviewing the District Court's judgment dismissing the complaint and granting defendant's motion for summary judgment, affirmed solely on the ground that indispensable parties to the action were not before the court.

We conclude that, where there is a substantial claim that prescribed military procedures violate one's constitutional rights, the District Courts have jurisdiction to resolve the constitutional questions. See Estep v. United States, 327 U.S. 114, 120, 66 S.Ct. 423, 90 L.Ed. 567 (1946); Heikkila v. Barber, 345 U.S. 229, 234-5, 73 S.Ct. 603, 97 L.Ed. 972, rehearing denied, 345 U.S. 946, 73 S.Ct. 828, 97 L.Ed. 1371 (1953) (dictum); cf. Harmon v. Brucker, 355 U.S. 579, 78 S. Ct. 433, 2 L.Ed.2d...