Von Knorr v. Miles

• Decision Date: 09 May 1945
• Docket Number: No. 2513.,2513.
• Citation: 60 F. Supp. 962
• Parties: VON KNORR v. MILES.
• Court: U.S. District Court — District of Massachusetts

60 F. Supp. 962

VON KNORR v. MILES.

No. 2513.

District Court, D. Massachusetts.

May 9, 1945.

COPYRIGHT MATERIAL OMITTED

John C. Johnston, of Boston, Mass., for plaintiff.

Edmund J. Brandon, U. S. Atty., and Charles E. Cunningham, Asst. U. S. Atty., both of Boston, Mass., for defendant.

WYZANSKI, District Judge.

This case is before the court upon (1) plaintiff's complaint, as amended April 3, 1945; (2) defendant's answer of June 26, 1944; (3) an agreed statement of facts filed in open court March 20, 1945; (4) defendant's affidavit as to his domicile, filed April 25, 1945, which plaintiff's counsel in open court agreed might be taken as evidence; and (5) defendant's motion for summary judgment filed March 19, 1945. Defendant also made a motion to dismiss but that is no longer before the court since it has been superseded by defendant's motion for summary judgment.

The gist of plaintiff's complaint is that defendant, as military commander, has, without due process of law, deprived plaintiff of his liberty to pursue his employment in connection with contracts between Cities Service Oil Company and the War or Navy Departments. The plaintiff primarily relies upon an alleged deprivation of his constitutional rights, but he secondarily suggests that he is entitled to relief because the defendant has interfered with advantageous contractual relations which the plaintiff enjoyed and for which he is entitled to redress in this court in view of the diversity of citizenship between himself and defendant.

Plaintiff is a naturalized citizen of Massachusetts and of the United States. On August 13, 1943 he was and for six years had been an employee of Cities Service Oil Company at one of its places of business in Massachusetts. It does not appear that he had any written contract of employment. Nor is there any showing as to the nature of his work, the usages of employment in the business, the period of time by which his wages were computed, or the existence of any collective bargain covering his employment. In the absence of such a showing, and in accordance with Paragraph 6 of the agreed statement, I inter as a fact that plaintiff was employed by Cities Service Oil Company at will and not for a fixed period. Campion v. Boston & Maine R. R. Co., 269 Mass. 579, 582, 169 N.E. 499; Fenton v. Federal Street Building Trust, 310 Mass. 609, 612, 39 N.E.2d 414; Littell v. Evening Star Newspaper Co., 73 App.D.C. 409, 120 F.2d 36. See Williston Contracts, Revised Edition, §§ 39, 1027.

Defendant is a major general of the United States Army and is and since February 11, 1942, has been commanding the First Service Command, which extends over the area where plaintiff was employed. Defendant was born in 1882 in the District of Columbia where his father was domiciled and on duty as a high officer in the Regular Army. He lived in various places within the United States until he entered the Military Academy at West Point, New York, where he remained for four years. For the past 39 years he has been an officer in the Regular Army, and has been stationed at various places within and without the United States. Since February 11, 1942, when he assumed his present command, he has resided in a private dwelling house on Mount Vernon Street, Boston. He intends to reside in Boston upon the termination of active military service, and it is his intention to consider Massachusetts as his domicil. From these admitted facts, I infer as an ultimate fact that for the purposes of the statute conferring jurisdiction upon the District Courts in suits where there is diversity of citizenship, Jud.Code § 24(1) (b), 28 U.S. C.A. § 41(1) (b), Major General Miles is clearly a citizen and resident of either the District of Columbia or of Massachusetts. If it were necessary to go further and resolve this ambiguity, I should find that for jurisdictional purposes defendant is a "citizen" of Massachusetts inasmuch as (a) he, though stationed in Massachusetts, has some freedom as to his choice of abode, including the right to live in a private dwelling, (b) he has expressed a definite intention to live here permanently, (c) being 63 years of age he is unlikely to be stationed elsewhere before his retirement, and (d) no other place has any but an unrealistic and highly technical claim to be his domicil. Mooar v. Harvey, 128 Mass. 219, 220, 221. See American Law Institute, Restatement, Conflict of Laws § 21, comment c. Compare District of Columbia v. Murphy, 314 U.S. 441, 453, lines 17 and 18, 62 S.Ct. 303, 86 L.Ed. 329. But see Kinsel v. Pickens, D.C.W.D.Tex., 25 F. Supp. 455, 456; Harris v. Harris, 205 Iowa 108, 109, 215 N.W. 661, 662; Dicks v. Dicks, 177 Ga. 379, 389, 170 S.E. 245, 250.

December 12, 1941, the President of the United States promulgated Executive Order No. 8972. Therein, after reciting the danger of sabotage, the President directed the Secretaries of War and Navy to establish guards and "to take other appropriate measures, to protect from injury or destruction" national-defense material, premises and utilities. "National-defense material" includes "supplies * * * intended for the use of the United States in connection with the national defense." Act of August 21, 1941, 55 Stat. 655, 50 U.S.C.A. § 104. "National-defense premises" include all "places wherein such national-defense material is being produced." Act of November 30, 1940, 54 Stat. 1220, 50 U.S.C.A. §§ 101, 104-106.

January 10, 1942, "by order of the Secretary of War" the Under Secretary of War issued "administrative instructions" for the discharge of subversives from private plants; and the Under Secretary joined with an Assistant Secretary of the Navy in an accompanying "memorandum." The administrative instructions relate principally to contacts with representatives of organized labor and are not material to this case. The essence of the memorandum is in paragraph 2a which provides that "when adequate investigation reveals that there is good cause to suspect * * * an employee of subversive activity, Army or Navy representatives have authority to request the immediate removal of the individual from the project." (Emphasis added.) The memorandum further provides for methods whereby an individual may contest his removal.

February 20, 1943 the Secretary of War by circular No. 57 authorized and directed, all service commands, as well as others, to establish guards and to take other appropriate measures to protect from injury or destruction national-defense material, premises and utilities. In paragraph III 3 of the circular "appropriate measures" is defined to include "the dismissal of subversives from private plants engaged in war production."

Major General Miles, as commander of the First Service Command, through a series of instructions to subordinate officers, authorized and directed Lt.-Col. William J. Bingham to write, and Lt. Samuel W. Whiting to deliver, Exhibit 1, a letter, on the stationery of Headquarters First Service Command, dated and delivered August 13, 1943. The letter was from Lt.-Col. Bingham to Cities Service Oil Company. The opening paragraph of this letter stated "By direction of the Commanding General, First Service Command, you are hereby directed to remove Mr. Hans Von Knoor sic, 199 Canton Street, Dedham, Mass. from employment on and access to work under War and Navy Department contracts, or anything pertaining to such work." Major General Miles also authorized and directed the writing and delivery of Exhibit 2, a letter written and delivered also on August 13, 1943, but directed to plaintiff personally. Both of these letters were written and delivered upon the basis of an investigation conducted without the presence of plaintiff or his counsel, and plaintiff was not, and has not been, informed of the evidence or given an opportunity to examine the witnesses whose testimony was included in the investigation.

A fair inference from the agreed facts is that Cities Service Oil Company, solely due to these letters, terminated plaintiff's employment August 13, 1942. It is agreed that for jurisdictional purposes plaintiff's damages from loss of this employment, if in contemplation of law he has sustained any damages, exceed, exclusive of interest and costs, $3,000.

In the manner provided by the memorandum of January 10, 1942, and other War Department procedure, plaintiff prosecuted an "appeal" to military authorities higher than Major General Miles. Plaintiff's appeal was unsuccessful and it is agreed that he has exhausted his administrative remedies.

Upon the basis of the foregoing facts plaintiff seeks an injunction restraining defendant from interfering with his employment by Cities Service Oil Company and declaring invalid "the order to the Cities Service Company" dated August 13, 1943.

Defendant, among other points, challenges the jurisdiction of this court and this challenge must be considered at the outset.

It is plain that this court cannot take jurisdiction of this case on the ground that there is diversity of state citizenship between the parties. Plaintiff is a citizen of Massachusetts. If, as I believe, Major General Miles is also a citizen of Massachusetts, then the parties are citizens of the same state. If, on the other hand, Major General Miles has retained citizenship in the District of Columbia, then he is not a citizen of any "state", and the case for that reason is not within the scope of the diversity jurisdiction clause of Jud.Code § 24(1) (b), 28 U.S.C.A. § 41(1) (b). Hepburn v. Elzey, 2 Cranch 445, 2 L.Ed. 332; Hooe v. Jamieson, 166 U.S. 395, 397, 17 S. Ct. 598, 41 L.Ed. 1049.

A more difficult question is whether this court can take jurisdiction under the clause in Jud.Code § 24(1) (a), 28 U.S.C.A. § 41 (1) (a), which confers jurisdiction over suits of a civil nature where the matter in controversy exceeds $3,000 and "arises under the Constitution or laws of the United States."

Both parties agree that for plaintiff to bring his case...