Ruby v. United States
| Decision Date | 12 February 1965 |
| Docket Number | No. 19683.,19683. |
| Citation | 341 F.2d 585 |
| Parties | Donovan Edward RUBY, Seaman 2nd Class USN Service No. 299 25 51, Appellant, v. UNITED STATES of America and the Secretary of the United States Navy, Washington, D. C., Appellees. |
| Court | U.S. Court of Appeals — Ninth Circuit |
Donovan Edward Ruby, in pro. per.
Cecil F. Poole, U. S. Atty., Howard H. Brandenburg, Sp. Asst. U. S. Atty., San Francisco, Cal., for appellee.
Before POPE and BROWNING, Circuit Judges, and THOMPSON, District Judge.
This is an appeal from an order of the District Court denying Appellant's petition for a writ of habeas corpus. The order was entered on the petition alone, without issuance of an alternative writ or an order to show cause.
The petition seeks the issuance of a writ of habeas corpus to require the Secretary of the Navy to produce the body of the petitioner before the Court to compel a proper and legal discharge, separation or retirement of the petitioner from the United States Navy. The petition alleges that on December 15, 1931, the Secretary of the Navy issued an undesirable discharge from service with respect to petitioner without investigation, board hearing or court martial. The petition further alleges that on August 14, 1964, the Executive Secretary of the Navy Department informed petitioner "that all administrative remedies within the Department of the United States Navy are exhausted as to the herein matter and that your petitioner is free to seek relief through judicial channels." The petition does not show that petitioner is now in custody or that he is presently subjected to any type of restraint or confinement.
The District Court properly found no basis for habeas corpus where there is no complaint of illegal restraint or confinement, relying upon Hooper v. Hartman, (9 CCA 1959), 274 F.2d 429.
Petitioner nevertheless insists that his case is governed by Harmon v. Brucker, 1958, 355 U.S. 579, 78 S.Ct. 433, 2 L.Ed. 2d 503. That decision is of assistance to him only insofar as it holds that an illegal discharge issued by the Secretary of the Army is subject to timely judicial review after all administrative remedies have been exhausted. It did not involve and does not support the use of the extraordinary writ of habeas corpus to obtain review of such allegedly illegal agency action.
Inasmuch as petitioner is without counsel, we have undertaken to determine whether or not the petition should have been retained by the District Court as an ordinary...
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