Roberts v. Vance

• Decision Date: 18 June 1964
• Docket Number: No. 17801.,17801.
• Citation: 343 F.2d 236
• Parties: Archibald E. ROBERTS, Appellant, v. Cyrus R. VANCE, Secretary of the Army, et al., Appellees.
• Court: U.S. Court of Appeals — District of Columbia Circuit

343 F.2d 236 (1964)

Archibald E. ROBERTS, Appellant, v. Cyrus R. VANCE, Secretary of the Army, et al., Appellees.

No. 17801.

United States Court of Appeals District of Columbia Circuit.

Argued January 16, 1964.

Decided June 18, 1964.

Petition for Rehearing for Amendment of Opinion Denied October 30, 1964.

Mr. Oliver Gasch, Washington, D. C., with whom Messrs. G. Bowdoin Craighill and Caesar L. Aiello, Washington, D. C., were on the brief, for appellant.

Mr. Gerald A. Messerman, 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 appellees.

Mr. Monroe H. Freedman, Washington, D. C., filed a brief on behalf of American Civil Liberties Union, as amicus curiae, urging reversal.

Before BAZELON, Chief Judge, and DANAHER and BURGER, Circuit Judges.

Petition for Rehearing or, in the Alternative, for Amendment of Opinion Denied October 30, 1964.

BAZELON, Chief Judge.

The appellant is an Army reserve officer with 18 years and 9 months of active federal service. The Secretary of the Army personally ordered him released from active duty after Major Roberts delivered an unauthorized speech to the Daughters of the American Revolution criticizing prominent public officials.¹ Claiming that this action would cause him to lose substantial sums of retirement pay,² Major Roberts sought a declaratory judgment and injunctive relief to have the Secretary's order set aside. On cross-motions for summary judgment, the District Court granted defendant's motion and denied plaintiff's. Major Roberts then brought this appeal.

The Secretary claims plenary authority, under 10 U.S.C. § 681 (1958), to personally effect Roberts' release:

"Except as otherwise provided in this Title, the Secretary concerned may at any time release a Reserve under his jurisdiction from active duty."

Roberts contends, however, that certain procedural safeguards which he was denied are "otherwise provided" in Title 10 and regulations thereunder and by the due process clause of the Constitution. Since we agree that these safeguards are provided by law we set aside the Secretary's action without reaching any questions arising from the due process clause.³

By Army Regulation 135-173, entitled Reserve Components: Relief of Officers and Warrant Officers from Active Duty, the Secretary has prescribed procedures governing exercise of his authority under § 681. In addition to sections prescribing involuntary release from active duty upon completion of maximum periods of service, attainment of maximum age, failure of promotion, etc., Section XV of AR 135-173 establishes the procedures to be followed in releasing "those officers whose degree of efficiency and manner of performance of duty require relief from active duty or elimination from the service." Following annual screening of records at Headquarters, Department of of the Army, to determine which officers fall into this category,

"The chief of arms and services, Headquarters, Department of the Army, will forward, without recommendation, to the Department of the Army Active Duty Board, or other designated board, the records of officers to be considered within the annually prescribed guidance and criteria. Cases of officers selected by the board for release and elimination will be considered for processing under A.R. 140-175 or NGR 20-6, immediately following their release from active duty." § XV.50.a⁴

Thus to release a reserve officer from active duty on grounds other than maximum age or period of service, failure of promotion, etc., the Secretary must observe the two-step procedure outlined in § XV: (1) screening by Headquarters, followed by (2) Active Duty Board review.

By express Congressional direction reserve officers within two years of qualifying for military retirement benefits are afforded special protection. In 1956 Congress provided lump sum readjustment payments for members of reserve components who were involuntarily released before they were eligible for retirement benefits,⁵ in order to "guarantee to the reservist that if he remains on active duty for a number of years and is then involuntarily released, he will be assured of some percentage of economic security during his readjustment to civilian life."⁶ At the same time Congress recognized in subd. (d) of the readjustment payment statute that reservists within two years of qualifying for retirement benefits (chiefly 18-year reservists) not only deserved compensation in the event of release, but should be protected against release at all:

"Under regulations to be prescribed by the Secretary concerned, which shall be as uniform as practicable, a member of a reserve component who is on active duty and is within two years of becoming eligible for retired pay or retainer pay under a purely military retirement system, may not be involuntarily released from that duty before he becomes eligible for that pay, unless his release is approved by the Secretary." 10 U.S.C. § 1163(d) (Supp. IV 1959-62)⁷

The Secretary has implemented this statute, as directed by providing in AR 135-173 that secretarial approval is required before an 18-year reservist can even be processed:

"Individuals who are within 2 years of qualifying for retirement under AR 635-130 on scheduled release date will not be processed under this section, unless such action is approved by the Secretary of the Army." § XV.50.d

In sum, release of Major Roberts required (1) secretarial approval of processing under § XV, (2) screening by Headquarters, (3) review by the Army Active Duty Board, and (4) final approval by the Secretary;⁸ but his release was effected solely on the basis of step (4). We think the Secretary was required to observe his own regulations. Vitarelli v. Seaton, 359 U.S. 535, 79 S.Ct. 968, 3 L. Ed.2d 1012 (1959); Service v. Dulles, 354 U.S. 363, 77 S.Ct. 1152, 1 L.Ed.2d 1403 (1957); United States ex rel. Accardi v. Shaughnessy, 347 U.S. 260, 74 S.Ct. 499, 98 L.Ed. 681 (1954). And he was not relieved from this requirement by the provision of AR 135-173 that "exceptions to these regulations may be authorized on an individual basis by Headquarters, Department of the Army."¹⁰ No such authorization, or explicit reasons to justify one, are set forth in the record before us. In light of the 18-year reservist's special status, we will not assume that the Secretary authorized an exception sub silentio.

But the Secretary urges that AR 135-173 is not the exclusive method of releasing 18-year reservists from active duty. We are told that 10 U.S.C. § 1163 (d)'s prohibition against releasing such men without secretarial approval implies that such approval is sufficient for release. Thus, it is argued, § 1163(d) protects the 18-year reservist by requiring the Secretary personally to authorize release rather than allowing him to delegate his authority under § 681. But § 1163(d) specifically directs the Secretary to promulgate regulations to implement the 18-year reservist's enhanced status. Since we have been shown no other regulation on the subject, we must conclude that § XV.50.d, AR 135-173, governs.

More important, perhaps, is the fact that § XV limits the Secretary's power to release officers who have not served 18 years, by providing for review of their cases at two levels. The question therefore arises whether a single, personal decision by the Secretary provides greater protection than a two-board screening. We think Congress' special concern for the 18-year reservist requires us to avoid such speculation and to hold that it intended secretarial approval in addition to the safeguards accorded reserve officers generally.

It follows that the Secretary's action was invalid and the District Court's order granting his motion for summary judgment must be reversed. The Court's order denying appellant's motion for summary judgment is set aside and the case is remanded to the District Court to consider this motion in the light of this opinion, and to conduct such further proceedings as may be necessary to determine the extent of the relief required.¹¹

BURGER, Circuit Judge (concurring).

The record in this case reflects summary action following appellant's plain violation of military regulations as to advance clearance for speeches given by an officer. We have no occasion to reach the basic decision of the Secretary to separate appellant from active duty; our concern is only with procedures. But the very purpose of all procedures is to insure that decisions are reached only after calm and orderly deliberation. To require the Secretary to accomplish the separation of an 18 year officer strictly in accord with the Secretary's own regulations does not impose an undue hardship. On the contrary it serves the important purpose of guaranteeing that action will not be taken in haste or under the impact of some unusual episode such as arose here....