Michaelson v. Herren

MEDINA, Circuit Judge

(concurring).

I agree with Judge HINCKS that the order appealed from should be affirmed for the reasons stated by him. But I would prefer to rest the affirmance on what I consider to be a more substantial base.

It is clear beyond cavil, I think, that military determinations are excepted from review under the Administrative Procedure Act, 5 U.S.C.A. § 1001 et seq., and that the Congress, by its establishment of Boards of Review and its declaration that the findings of these Boards of Review shall be “final subject only to review by the Secretary,” 38 U.S.C.A. § 693h, intended to preclude judicial review so far as it was within its power to do so. Gentila v. Pace, 90 U.S.App.D. C. 75, 193 F.2d 924 , certiorari denied 342 U.S. 943 , 72 S.Ct. 556 , 96 L.Ed. 702 . It follows that a determination relative to the type of discharge issued by the Army may be reviewed by the courts only when there is presented some substantial claim that the military tribunal making the determination complained of has violated plaintiff’s constitutional rights. See Estep v. United States, 327 U.S. 114, 120 , 66 S.Ct. 423 , 90 L.Ed. 567 ; Heikkila v. Barber, 345 U.S. 229, 234-235 , 73 S.Ct. 603 , 97 L.Ed. 972 .

What appellant claims is in substance that the military tribunal, which made the decision that he be given a less than honorable discharge, acted in such a way as to deprive appellant of due process of *697 law as guaranteed him by the Fifth Amendment. But his specification in the complaint of what he claims to have been a deprivation of property without due process of law turns out to be nothing of the kind. We need not refer to the contents of the affidavits used in opposition to his motion for a preliminary injunction, which are before us, and which demonstrate that his trial continued for several days, that he was represented by counsel, and that proofs were received in support of the factual allegations contained in the charges against him. A scrutiny of the complaint alone establishes to my satisfaction that what he complains of is merely that the military tribunal reached an erroneous conclusion on the evidence before it. And this is so whether we read his allegations as stating that, balancing the proofs pro and con, the findings were against the weight of the evidence, or as stating that the proofs taken as a whole were insufficient to support the findings. In either case, the complaint does not allege a denial of due process. While the Supreme Court has told us that there is such a denial if administrative findings are “unsupported by any evidence,” United States ex rel. Vajtauer v. Commissioner of Immigration, 273 U.S. 103 , 47 S.Ct. 302, 304 , 71 L.Ed. 560 ; Ng Fung Ho v. White, 259 U.S. 276, 284 , 42 S.Ct. 492 , 66 L.Ed. 938 ; Eagles v. United States ex rel. Samuels, 329 U.S. 304, 312 , 67 S.Ct. 313 , 91 L.Ed. 308 , or have “no basis in fact,” Estep v. United States, supra [ 327 U.S. 114 , 66 S.Ct. 427 ] ; Witmer v. United States, 348 U. S. 375, 383 , 75 S.Ct. 392 , 99 L.Ed. 428 , there is no lack of due process if the administrative agency based its findings on some evidence.

The gist of the complaint is in the following paragraph:

“Eighth: That the said allegations [those made against appellant by the military authorities] were not upheld by substantial evidence upon the hearing aforesaid and were in fact not established in law or in fact and the service of a [less than Honorable] Discharge upon plaintiff would be a capricious, arbitrary and illegal acts [sic].”

The allegations of paragraph “Tenth” that the proposed action of the military “would be arbitrary, capricious and illegal and in violation of the Fifth Amendment” add nothing to what is alleged in paragraph “Eighth.”

Whatever may be the intended effect of the simplified and liberal provisions of the Federal Rules of Civil Procedure, 28 U.S.C. in the ordinary run of civil litigation, I cannot believe that it was intended to sanction a review of the whole record of decision by an administrative tribunal, simply because the plaintiff in the action seeking such review asserts that the decision complained of was “illegal” or “in violation of rights under the Fifth Amendment.” And I agree with what is said by Judge Edger-ton on this subject in Gentila v. Pace, supra, 193 F.2d at page 926 . These are bare conclusions of law “unsupported by any allegation of fact.” See also: Polhemus v. American Medical Ass’n, 10 Cir., 145 F.2d 357 ; Swank v. Patterson, 9 Cir., 139 F.2d 145 ; Billings Utility Co. v. Advisory Committee, 8 Cir., 135 F.2d 108 .