Petition for a Writ of Certiorari — Browder v. Vance

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FILED.

. OCT 30 1963

= . mT. 16, CLERK

IN THE

— Court of the Huited States

OcTOoRER T ERM, 1963

Jewet Ricuarp- Browper, Petitioner

Vv.

Cyrus R. Vance, Seeretary of the Army, ET AL.

————

PETITION FOR WRIT OF CERTIORARI TO THE

“UNITED STATES COURT OF APPEALS FOR

_THE DISTRICT OF COLUMBIA CIRCUIT

—————

Wituiam G. Downey, Jr.

»Northern Virginia Bank Building

- Springfield, Vi irginia (

Cuartes D. T. Lenndorr

Northern Virginia Bank Building

Springfield, Virginia

Attorneys for Petitioner

Press or Byron S. ADaMs, Wasuincrton, D.C.

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INDEX eters

. ae ; Pure “if

_ Opinions Below fo Tea erere rey * _ “ aes i tevsiee ee

Jurisdiction: ....2.... 05.02. ened dleeee Sk Te Mee

. Questions Presented -....... ee yi ARAN Segue ree 3°

Statutes Involved | es peers a meres Sees gor 3

re Spear Pee ent ee OT ; Rte

Reasons for Granting ewes. ver Aes 8

Conclusion rien” Soon, aera Vuln oncatets Dusit 24

Se ay cea Za

Appendix A ..::...... wescews WSeenkes pee eee la

tS aS: Spay eg ee manner rae CAG ge Coreen " 2a

, Appendix C ..... Bates Crete shes wad Ga

| Appendix. Lars: cies oe eS aot aA TRE Se AG

a Ee ae ee Rhee ecet ai: ae At

OMI ooo cok cos tes (ane heath hts Nausea’ 19a.

Appendix G ....:....... ekeeke es Regi ta eaes me ieas Da’

TABLE OF CITATIONS oe

; oa Ps . Se ee aa

Cases: ge ar rear .

—

<< Beaey ©, Patioveen, 000 0.5. Bt oo. sd eo ocean.

. Beard -y. Stahr, 370 ULS. 41 ...... Soe Tee eee 9, 13, 22

Beilan y. Beard of Publie Education, 357 U.S. 399 (2.0 220

Bland.v. Connally, 110 U.S. App. D.C. 375 .:

Counselman v. Hitcheock; 142 U.S. 5470 :...0..0...0.... is NI

Fieming-v..Nestor, 363 U.S. GOS .. os. ccc crew cece .93, 7

Greene v. MeElroy, 360 U.S. 474 ....... 3 oe

Harmon v. Brucker, 355 U.S. 579 2.00... AS Spears

Idlewild Liquor Corp.v. Epstein, 370 U.S. 713 2.2... 11

-* z ‘ ‘ wer ¢ ae “ 7 ° . -

ae Index ¢ ontinued,

G . iP Page

Joint <Anti- Fascist. Defines C ommittee v. MeGirath, 341° 0

US TRE a eee cect nacees BB

Kwong Hai Chew v. Rogers, 103 U.S. App. D.C. Pra i

Schneider v. Rask, -~ U.S. —,. (83 S.Ct. 62] ) Pata 9

Wieman v. Updegraff, 344: ULS. 183 [0002 0...00000... ; ae.

_Wood v. saci 266 F.2d 82%, ..<:... a ee Sars Meets . «ade

STATUTES AND PERS ee

Constitution of the United States

Amendments.Article V ......3,.......... ood, 13,17 - -

‘United States Code: hilary 22007 | as

Aiea rgb eek ka ae ete backs sawn s 5, 20

: USC, ¢ ‘hapter 360 2.02... OP CERES ABLE ody aay 22a

10 ULS.C. Sections BTO1-3797 Oe eae 3, 4,5, 6, 7, 9,

arp eee hee: | Te 92,13724,22a

10 U.S.C. Section 8741 2. o, rer

10 ULSSC. Section: 3792 000.00... ree er 20, 22a

10 U.S.C. Seetion B794 0.0.0... Ce Pyare | Ba

28 U.S.C. Section 141 Pl cpevven rs ouaas waco e ee

28 U.S.C: Section 1292(b) \. 22... perryrt YS 8

_ 28 UB, Boetion 2282 6 oo ieee vanes dees 3, 10,17

: 28 U.S.C. Section 2284 040° Vere errr st * 10, 16

U.S. Army Regulations 604-10 025000000 ., orien

U7, S. Army Regubations os AEE OC 18, 19, 21

CLS. Army Regulations 685-105 ...,........405 ay he

MisCELLANEOUS: oe ei

Rule 91. of the General Relies of the United States

Courtof Appeals for the District of ( ‘olumbia ( ir-

i, MRE a tank Sig pape h data amid Pe eR Ey ee ee

Webster’ s ner World Dictionary pee pik a Ep ee Is

ee: | “

ae a

Neca haan vk

To the Honorable. HP ries Justice of the United States .

IN THE.

| Supreme Court nf the Hnitrd States:

Octrosper TERM, 71963

* P aa “

° No. . a /

——— <a ; . ant ‘ VA

. a A

* — y

: of

. < > : Pe

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dae JEWEL RicHarp Browprk, Petitioner /

A 5 = "¢ FA

i. ; cs Vv. <i i

. ; ‘ —

- Cyrus R. Vance, Secretary of the Xrmy, rr av.

8 ; are Z

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7, 7

\ ri ° feof

“PETITION FOR ‘WRIT OF CERTIORARI TO THE.

‘UNITED STATES i OF APPEALS FOR

THE ‘DISTRICT ‘OF COLUMBIA CIRCUIT

—————

and the- Agsoc ‘tate Justices of the Supreme Court of

the U nitgd States: a ,

Jewel Bichard Browder, the petitioner herein, . by his at-

torneys, prays that a writ of certiorari issue to review the:

decision of. the United States District Court of Appeals for.

the District of Columbia entered in the above cause on

s* « @

ae pee ge Sopte anber 20, 1963, refusing to allow petitioner herein ane

Sms * “appeal from thé judgment of the United States. District —

Court for the Dis strict of Columbia, dated September TO),

oh 1963, denying peu loner - motion for a three-judge court,

OPINION Ss BELOW |

The order of the United States Court of Roviels for the,

~ District of Columbia denying the application of the peti-

tioner for. permission to take ap appeal is not vet repgrted,:

but i is appended hereto | Appendix, A, p. la). ; .

The memorandum and interloe ‘utory orders of the [" nited Eee

“States District: Court, for.the Distriet of Columbidéare not

2 bid officially reported, but are appended hereto ( Appendix

» pp. Za-da and Appendix C, pp. Ga-Ta).

The temporary. restraining. order of the ‘United States

District Court for the District ef Columbia is not yet offi-

cially reported,” but “is appended hereto ———— ‘DY, pp.

Sa- Wa). ; . 3

3 ronispiction

The order of the U nited 4

‘District of ‘Columbia was’

tatesa! obyt tof Mawes ls for the

tered ¢ Septeibier 20, 19635:

The temporery restraming order of the, United States

Distriet Court was is Aed on August 30, 1968,

The intetlocute y. ‘sie Ts of the ! Unitéd States District

Court for ‘the | istriet of Cofumbia were enfered on Sep 7

tember 10, and September py 1963.

i ~ Kcegn

if hl , ° 2 oe ° . | ; of E v

raf ge of the Chief Justice of the [nited States re-

straintfig the defendants and granting pytitioner thirty

day in which to file this petition for certiorari Was entered

on. Se ptember 30,1965.

The: jurisdiction of this Court is invoked under the pro-

visions of 28 Fus.C. 12A4( 1).

QUESTION Ss PRESENTED

. Should the C ‘ourt of Appeals have granted petitioner’ s

ide for-an interlocutory .appeal under. the provi-

_ sions of Section 1292(b) of Title 28, United St ates ( ‘ode?

. Is a.three-judge court hecessary. ‘to hear petitioner's s

inotion for a preliminary and permanent injunctions *

_». Does a-substantial question of constitutional vatidity

arise from’the language of Sections 3791 et seq. of T ithe: 10,

United States Code? f r

4. Assuming that a substantial question of constitutional

. Validity does thus arise, is the St itute atself uneonstita-

tional on its face? =

STATUTES INVOLVED

The. ‘Statutes iliv oly ed are:

United States Constitution

* Amendments, Article V '

‘iv nited States Code:

e 5US.C:1006(c) |

: 10 U.S.C. C hapter 360 a

10.0.S.C. Sections 3791 through 3797 —- ‘

28 ULS.C. Seetion 1254(1) 2

PS ULS.C. Seetion 1292(b).

28 TUS.C. Seetion DOS?

: eh =S.C, Section 2284 ;

The ‘pertinent portions are either quoted in the text or

set forth in Appenilix G, pp.

. 0) STATEMENT

; The petitioner is a Lieutenant Colonel in the Regular

Army of the United States. He was ordered to be elimi-

‘ nated. by involuntary retirement from the active list of the

‘Regular Army by ‘the defendant, Seeretary of the Army,

wnder the provisions of; Section 8791 et seq. of Title 10,

ee ‘ ‘ °te ’ oe

United States Code, ou the grounds of: moral ‘dereliction.

eee BEATE Go ee aaa ae

The order was to be effective on. August Of: 1963. but. has

“been stayed: pending appe: ile | i Q ee

On January 26, 1962; the. petitioner. was ‘aequitted by a”

General Court Martial of -eertain ekarges anid specitica- \

. tions, which are- appended: hereto in the General Court —

“Martial Order as Appendix [fy pp. Ma-isa. Nevertheless,

‘and not withstanding the said acquittal on all charges and

“specific: itions, the petitioner was advised that he would be

required to show cause before a Board of General, Officers,

Ponvened according to Tithe 10, U.S.C. 3791 et seq.ow hy he

‘should not bé removed from the active list of the Regular

“Army on éertain charges, (Appendix F, ‘pp? a-2la), aris-

ing oukgf the same iny estigations, reports and information. .

upon which the charges and xpee ifieations, of which he was

acquitted’ by the (General Court Martial, were based.

44 \. Board of: Inquiry, held a hearfhg-on December wh,

1962 at. which tir {titioller was represented by counsgl.

Who |protested thaaanconsitutionality of the Board and its

proctedings. Prior

some ‘thirty Witnesses, upon w hose unsworn statements the

Government's case Was largely grounded, be ealled i in order

that they might be examined and confronted by the peti-

tioner. Petitioiier was ddvised that the Government. re-

fused to call twenty-two of the said witnesses, but would

provide'tocal transportation for ‘the remaining if the de--

fensesmade the necessary arrangements for their attend--

ance. te " ie

Phe Board found that the petitioner h ad shown cause for

retention as to the allegations of acts of personal Tiscon- °

duct and of conduct unbee omuny an officer, but the Seat

found that ‘the petitioner had not shown case. as to the

alles: ition of. intentional omission or misst: atemie nts ae fact

in Gficial statements. and records forthe ‘purpose’ of mis-

representation, and reeommre ‘nded that he be removed from

the ae tive list of the Regiilar Ariny basing its finding and ~

cri aur ae the following reasons and factual data:

e.,

othe hearing petitioner requestéd that -

Lhe.

(a)

We ods

in?

Unlawtully obtained payment of Basic Allawanve for

@ Quarters fromSept 1957 te ahkout April 1960 during:

(b)

Which period he was occupying adequate government

family type quarteys, eee

On or about 24 Aug 1958 unlattully caused travel

oar . {

_ordeys to be ixsued. for travel to Uttea, N.Y. Which.

(¢), On or about. Not 1959 of shbmission ofa voucher ,

(d)

Two of the “reasons and factual data

facts as are steted in the said Gere ral Court: Martial ( rdey

No. 5, dated April iz, Iie, ( Appe ndix: Ki, pp. ite ISay as

follows:

orders were for his own personiil beivotit to permit.

collection of travel expenses from the goy ernment,

received payment from the U. 8, for a trip from.

Burlington, lowa, to Joliet, Hi. the pr Mary Ttrpose

of which was personal rather than olkeial uf nature.

“i.

Submitted a travel, voucher for TDY ni Paris anil

Munieh during the period 26 Ang tos et 1960 when

‘travel to these cities Was.not authorized in his OF

+. ders,

? $i

repeat the same

Reason (a) above was covered-by Speecitications |

‘through 19 of C harge |, of which cliarge and specitiea-

tions the ne ‘titioner Was acquitted,

Rea: son (b) above Was covered by Spee ifie ation » of:

Charge Hl -and by Specification 3 of Charge LN of

which charges and specific ations. thd ‘petitioner wa

“acquitted. . Ro

These findings were approveil by Ee Army Board of |

Review for Elimination: anc by the Seerdt

~ who ordered the pe titioner’ ¥ involimtary retirenve nt under

‘the provisions of 10 U.S.C: ood et seq, H r :

motion for a premessry injunction,

ary of the Army

(' oD a |

Augnst 29, 19623, petitioner file

nif his motion for a

luis complaint, his’

; S/ three-judge court, in the United States District Court for

ae the District. of Columbia, alleging: that the statutes (10

Ss TLS... S791 et seq. upon Which his removals predicated,

\care unconstitutional, in that they. deprive an‘@flicer of, the.

Regular Army of liis offic His pay, allowances atrd per-

quisites thereunto belonging,’ withoutedue process’ of law,

~~ “in violation of the Fifth Amendment to the Constitution of

; the United States, im that the said seetions provide for the

“elimination of an ofheer of the ReguMar, Army from the

Service for nioral dereliction. without any proviston for

confrontation | or cross-examination of those persons inmak-

ing the derogatory accusations, and that, as constrifed and

‘Sapphed to*the petitioner under the circumstances in. the

present case, thé Said sect rons are. unconstitutional for the

same reasons,

On August 3041963, the Tnited States District Court for

the District of Columbia, Judge Leonard P. Walsh, gutered |

‘ a temporary restrainjug order which stayed the removal

of the petitioner in order to prevent irreparable injury to

him, pending deterinination of the constitutiona! questions

involved and in order io grant the petitioner a hearing on

his motion to convene ga three-jud&e court ‘(AppendixD,

pp.Sa-Ita-). Ge eae { : . Bae

{@ On Tuesday, September 3, 19833, and on Friday, Neptem-

her 6, 1963, Judge Walsh heard argument on petitioner's

motion for a three-judge court and on-defendarts’ motion

to dismiss the complaigl..

On September 10, 1965, Judge Walsh issued a memoran-

dum and order, (Appendix B, eg Ja-oa), (1) denying»

petitioner ’s motion to cOBYEne w three-judge court, (2)

denying ¢ defendants’ motion to cas and (3) continuing

the temporary restraining order in effect until 12:30 PLM.

September 12, 1965. ;

(on September 12, 1963, petitioner filed a motion in the

Mnited States Distriet’ Court for a, stay to permit him to

file an application for permission to- “appe: al iw the U hited

‘\ i ‘ ' .

States Court ‘of Appeals for the District of Columbia. On

that’ date, Judge. Walsh issued an order (Appendix C, pp.

Ga-Ta), continuing the temporary restraining order until

September 19, 1963, and stating therein that if was the tinds.

-ing ef the United States District Court that. the order a

pealed from: (Appendix B, pp. 2a-5a) involved a control-

ling question of: law #€s to which there is a substantial

~ ground for difference of opinion ‘to wit: Phat there is

neta substantia} question of constitutional apse arising

from the language. of the statute itself (LO US.) ooo,

et seq: and that an immediate appeat. from the said of

der may materially advance the ultimate termination of

“this litigation. |

— On Septeinber 16, 163, under the provisions of Section.

Court of Appeats for the District of Colymbia, petitioner

filedehis motion for permission to take an appeal of the aid

interlocutory order and for a.stay jn the United States

Court of Appeals for the District, of Cojumbia Circuit.

. A ~

On September 20,1963, the United Staies Court of Ap-

-peals for the District of Cohumbia Cireuit denied the said&

application in a per curiam opinion, (Appendix A, Pp. ja),.

iy which Judge W right. dissente d as follows: -

oe “1 would grant the motion for interlocutéry app: al

and extend the stay, The attack on the constitntion-

‘ality af the statute, is not plainly frivolous.’ Conse-

‘ b ey ntly nm three. judge district. court yrequired 2s

} CC Pes? Compare Bailey v. Pathe rson, O09 TLS,

1 (i963 .- See Idlewild Liquor ¢ me. Epstein, 370

e Ss. “13. (1962), for. authority of this court Lo rte ee

tain the appeal under the circumstances of thiw Case.

avoided riling on the constititionality of the statute in Stit

on the grounds urged here. See alse in that case the dissent-

1 See Beard v. Stahr, 370 US. 41 (1962). in which the Court

ing opinign of Mr. Justice Douglas, cone urred in by Mr. -lus- -

tice Black, with respect tothe constitutionality of this statute.”

. em 3 “ ‘ .

" .

t ‘ ,

_ The temporary restraining order-issued by the Distriet/

Court expired on September 19, 1963. On September 24,

1963, the Department of the Army issued a ‘further order

involuntarily retiring the petitioner from the active list’ of

the Regular Army on September 30, 1965, and placing bim

on the retired list ds of October 1,-1963. Phis order was

staved by the order of Chief Justice W arren, dated Sep

te mber ou, 165. sa 2, - ~K

REASONS FOR GRANTING OF WRIT.

The questions presentéd will be considered sertatim:

A. The Court of Appeals Should Have Granted Petitioner's

_ Application for an Interlocutory Appeal

Section 1292¢b) of Title 28 United States Code provides:

“(b) When a-distriet judge, in making in a civil ac-

tion an order not otherwise appealable under this sec-

tion, shall be of the opirion that such order involves a.

controling. question of law as to which there is sub-

stantial ground for difference of opinion and that. an

inimediate appeal from the order may materially ad-

Vance the ultimate termination of the litigation, he

‘shail so state in writing in such order. The Court of -

Appeals may thereupon, invits discretion, permit .an

appeal to be taken from such order, if application -is

made to it within ten days after the entry of the order:

Provided, howeve?, that application for an appeal here-

tader shall not stay proceedings in the district conrt

unless the district judge or the Court of Appeals ora

judge thereof. shall so order.’ -

Rule 914 of the General Rules of-the United States Court

of Appeals for the District of Columbit provides:

“Applications for permission to take appeals under

Section 1292(h6) of Title 28, United States Code, from

interlocutery orders of a District Court shall set forth

the relevant facets, imcluding the nature and a brief

history. of the proceedings in the Distriet Court with

all important dates; shall include or-have anmexed a

copy of the order from which an appeal is sought to

be taken, together with any findings of taet, conclu-

sions of law and opinion of the District Court. relating

thereto; and shall state briefly the controlling question

of law which the order is believed to involve, the

ground for ‘difference of opinion with respect thereto

which is believed to be substantial, and the basis for

believing that an immediate: appeal may materially

advance the ultimateée.termination of the Htigation.”’

Uhder the cited provisions of the Statute, the District.

Court Judge. stated in his Order of ‘September 12, 1963,

that it was ‘the opinion of this Court-that the said Order

appealed from involves a vont rolling question of; law as to

which there.is a substantial ground for difference of opin-

ion, to wit, *That there is not a substantial question of con-

stitutional: validity arising from the language of the Statute”.

itself (10 U.S.C. 3791, et seq.)* ang that’an immediate ap-

pea} from the said order may materially advance the nlti-

mate termination of this litigation * * *

While it-is inthe discretion of the Court of Appeals to

permit an appeal of an interlocutory question to be taken

from the said Order, the interlocutory appeal should he al-

lowed unless it is plainly frivolous. .Certainly the question

raised, here on appeal is not insubstantial, (Sehueider v.

Rusk, US, 283 8.Ct. 621). Furthermore, no prior

decisions of this Court have rendered the petitioner*s posi-

tion frivolous. (Bailey v. Patterson, 369 US. 312 82 S.¢ Ns

49). This Court did not dee ay ae eight ques-

tion in the Beard case (370 US. 41: / 1105), but it,

can be argued that, in the ne nee of mie a decision, by

vacating and remanding the judgment of the three-judge

Distriet Court, which held the statute to be constitutional,»

this Court has in effect held that the que ‘stion of the con-

Stitutional validity of ‘the statute G10 U.S. 5791 et se

remained open for later consideration.

Therefore, the Court of Appeals should have granted

petitioner’s application for an appeal to’ consider this in-

terlocutory question.

”

B. A Three Judge Court Is Necessary To Hear Petitioner's

Motion for a Preliminary and Permanent Injunction _

Section 2282 of Title 28, U nited States Code, prey ides:

’ An interlocutory or permanent injunction restrain-

ing the enforcement, operation or execution of any Act

* of Congress for repugnance to the Constitution of the

Vnited States shall not be granted by any district court

or judge thereof unless the application therefor is

heard.and determined by a district court. ef three

judges under section 2284 of this tithe. (June 25, 1948,

‘ch. 646, Section 1, 62 Stat 968.)

Section 2284 of Title 28, United States Code, provides:

Incany action or proceeding required by Act of Con-—

gress to be heard and determined by a distr ict court of

three judges the. composition and procedure of the

‘court, except as otherwise provided by law, shall be as

follows: Aas : -

(1) The District judge to whom the application for

. injunction or-other relief is presented shall constitute

one member of such court. On the filing of the appli-

cation, he shall immediately notify the chief judge of

the cirenit, who shall designate two other judges, at

least one of whom shall be a circuit judge. Such judges

—shall-serve as members_ot the courtto hear awid-deter-

mine the actaon or proceeding. :

(2) If the actien involves the enforcement, opera-

tion or execution of State statutes or State adminis-

_« trative orders, at least five days’ notice of the hearing

shall be given to the governor and attorney general of

the Sfate. ‘

If the action involves the enforcemeént, operation .or

executiqn of an Act of Congress or ansorder of any

department or agency of the 3 Vhited States, at least five

‘days’ netice of the hearing shall be given to the Attor- ,

ney General of the United States, to the United States

attorne y. for the district, and to such other pet ‘Sons as

may be defend: its.

Such notice sai given by registere:l mail by the

clerk, and shall be complete on the mailing thereof,

-(3) In any such case in w whic h an application for an

interipeutory injunction is made, the district judge to -

whom the application is made may, at any time, grant

a temporary restraining order to prevent irreparable *

_ damage. The order, unless previously revoked by the

‘district judge, shall ‘remain in force only,until the hear-.

ing and determination by the dull court. “It shall con-

tain a specific finding, based ypon evidence submitted

to such judge and identiied by reference thereto, that

specified irreparable damage will result if the order is

not granted. ice

(4) In any such case the application shall be given.

precedence and assigned for a hearing at the earliest f

practicable day. “Two judges must concur in granting .

the application. : :

. ¢ ») Any ene of the iis ides of the court may

perform all functions, conduct all, proceedings except

the trial, and enter all orders required or permitted by

the rules of civil procedure, A single judge shall not

-appoint a master or order a reference, or hear and

deternune any application for an interlocutory injune-

tion or motion to. vacate the same, or dismiss the ae-

tion, or enter’a summary or final judgment. The ae-

tion of a‘single judge ‘shall be reviewable hy theta

court aLany-time before tinal rearing. 3

A district court of three judges shall, before final.

hearing, stay any action pemling therein to enjoin,

suspend or restrain the enforcement or execution of’a

State statute or order thereunder, whenever it appears

that a State court of competent jurisdiction has stayed

proceedings under such statute or order periding the

determination in such State court of an aetion to en-

force the same, Hf the action in the State,court is not_

prosecuted\ditigently and in good faith, the district”

court of three judges may vacate its stay after hearing

upon ten days’ notice served upon the : a ogy gener ral

af the State. (June 25, 1988, ch. 646, Seetion 1, G2 Stat.

QOS.) ®

. Let tis examine the relevant facts of this case inder the

rule of this Court (ldlewild Bon Voyage Liquor Corpora-

, fron v. Epstein, 370 US. TE, 82 S.Ct. 1204) that when an

| : The Constitutional Question Raised Ie,Substantial:

application for a statutory three-judge court is ‘addressed

.to a District Court, the Courts inquiry is appropriately,

Himited to determining (1) whether the constitutional ques-

tion raised is substantial;. (2) whether the complaint at

least formally alleges a basis-for equitable relief and: (3)

whether the case presented otherwise comes within the re--

quirements of the three-judge’ statute.

Paragraph 20 of the complaint alleges that Sections 3791-

3797 of Title 10, UIS.C., as amended in 1960, are unconsti-_

-tutional on their face beéause they provide for separation

of- an officer ffom the Army on-the grounds of moral dere-

liction without making any provision for compulsory proc-

ess to enable the said officer to confront -and to cross-exam- ©

ine his accusers, in vidlation ‘of the due process clause of

the Fifth Amendmeyt. — >

In pakagraph 21 of ‘the penietaiak: p laintuf repeats the

allegation of unconstitutienality as the statute was con-

strued and applied to him in the circumstances of the pres-

- ent ease, because he was, in f: agt. denied: confrontation’ with

his accusers because the tribunal lacked subpoena powers

to require said ace users to appear before it and) deiitet

~ Phaintiff’s cesta that the accusers be called. ax: Ris wit-

hesses, . . : a

©>

ln paragraph ‘ 27 (c) of the complaint Plaintiff prays that

defendants be enjojned from executing and enforcing Sec-

tions 3791-3797, Title 10 ULS.C., on- the ground of their re-

vugnanee to the. Constitution. ;

lyf his motion for pre ‘liminary injunction, P laintift prays.

for such an injunction in respect of the said prayer in para

graph ° 27 (ce) of the complaint.

Thus, the Relief sought in paragraph 27(¢), of the com-

plaint would restrain the aperation of Tithe 1% S.C, aye

“et seq. in other cases, and, therefore, requires a three-judge

vourt under the rule set forth in Fleming v. Nestor (363

“TLS. 603, SO S.Ct. 1567) to the effect that the act does not

require a three-judge court where the relief sought would -

not restrain the operation of the statute in other cases,

The U.S. District Court (Judge Walsh) has in its Order

of September 12,1063, stated that there is not a substantial»

-question of constitutional validity arising from the lan- .

guage of the Statute itself, (107U.S.C. 3791 et seq.) thereby

failing to follow the *trule of the case”? in the said court,

~ which rule wis established by Judge Hholtzoff in the prier

case of Beard vy: Stakr (200 F. Supp. 766) and’ which state

in effect that the constititional question*raised under the

said, statute was, substantial: *\ -

- e \

Here the basic constitutionalfauestion is: Can the Seere-

tary of the Army under the provisions of 10 U.S.C. S791

et seq. order the involuntary retirement of a Regular Army

Officer from the Regulaf Army by violating the rights of -

said Regular Army Officer under the Fifth Amendment to?

the Constitution of fhe U.S.

The Beard ease (370 ULS. 41:82 8.Ct. 1105) came to this

Court ard was: disposed of onvother grounds, but, the ques.

tion of the appointment of the three-judge court was neither

raised gor discussed by this Court. It must, therefore, be

assumed that this Court ‘acquiesced in the granting of the

petition for a three-judge court and, therefore, in the

grounds therefor, namely, that a substantial constitutional

question had been raised. ae

_ It is submitted, therefore, that a substantial con-stitn

tional question is raised herein.

2. The Complaint Formally Allegesa .

Basis for Equitable Relief: :

Paragraplis 16, 19, 22, 23, 25 and 26 of the Complaint

ragray I

atlege as foll6ws:

**16. The. hearing before the, Board of Inquiry was

not ‘fair and impartial’ as required by said Section

3792. (b) of Title 10, U. S. Code, in the following

sce az

a! The hearing was unfair because plaintiff was

-demeaa of the right. to be confronted by and to

cross-examine the witnesses against him.

“hb. The. — was unfair because condueted

utider regulatiops that shiftedé the burden of proof

to the respon d4@t officer, the plaintiff here, the said_

- regulations gave probativ e and well-nigh conclusive

effect to the ex parte allegations drawn by the selee-

tion board from a file’ of papers.

‘‘e, The hearing violated plaintiff’s constitutional

right not to be twice placed in jeoépardy forthe same

offense, after he had- been acquitted by a, court

martial of the same offenses considered by the

Board of Inquiry.

» . @ e eo

—n Section 3791. to 3797, inclusive, of Title 10,

US. Code, are unconstitutional on their face, hecanse

a. deprive plaintiff of his office and of the pay,

allowances, and perquisites. thereunto appertaining,

‘vithout due process of law, in violation of the Fifth

Amendmenf, in that they provide for separation from

ithe service for derog itory reasons without any

‘facilities for confrontation by and cross-examination

of those making wt derogatory accusations,

i = © e

is” 20, As construed and applied to the plaintiff i in the

circumstances of the present ¢ase, said Sections 3791

to 3797, inclusive, of Title 10, U. S. Code, are uncon-

stitutional for the same reasons: j

‘*22. Nevertheless, on the basis of said elimination

. proceedings, the defendants imminently threaten. to,

: 1

and unless ‘restrained and enjoined by this Court will,

-irrevocably separate plaintiff from the active list of

the Regular Army on August 31, 1963, to his irrepar- |

able injury, branded for life as a person unworthy of

trust or confidence and permanently stigmatized with

noral dereliction without’ being confronted by his

accusers. Plaintiff has now completed: inore than 24

years of active duty. and, if onee removed from the

active list of the Regular Army, cannot be restored

thereto under existing law, nor by executive action,

but could only be restored thereto’ by the enactment -

of a special Aét of Congress authorizing his reappoint-

‘ ment and by executive reappoirtment pursuant to such

Special ‘legislation. The stigma about to be attached —

to him by the action of the five défendants will follow

him, whatever employment he seeks. The require-

ments’ of due process provided by the Fifth Amend-

ment should protect him against this harsh result by

giving him the same right te confront his accusers as

he would have in a criminal trial, and as he did have

_ before the court miartial which acquitted him.

3, $923. Plaintiff could not be made even moneta irily

w rhole. except by bringing a suecession of suits if the

Court,of Claims, and. therefore does not have a. speedy,

- prompt, oF adequate remedy at Jaw. Furthermore,

plaintiff. is an engineer by profession, Prior to the

court martial at which he was acquitted, he «rved for .

1! vears as the Commanding Officer, Ordiiance Test

Activity, Yuina Test Station, Yuma, ‘Arizona, and as

the: Commanding Officer, Towa Ordnance Plant, for

-2U; vears, both of these assignments requiring Top

Secret Restricted Data security clearance. Before

the said clearance could be, restored to plaintiff after

his acynittal by the court martial, the board proceed-

ings were begun, and his security clearance has no:

vet been restored. In the type of work which he would

be qualified tosperform after separation from service,

he would requiresa high security clearance which the

action of the Under Secretary would permanently

deny to him. a

ae *

‘695, Plaintiff has exhausted all of his administra-

tive remedies. Any appeal to the Secretary of the

16 -

Army or his delegate from this order would be only a

matter of grace and therefore not an administrative

remedy. Any appeal to the Secretary oi the Army

or his delegate would moreover be fruitiess since the?

Statute (Title 10, U. S. Code, Sec. 3794) provides, that

action by the Secretary is final@and conclusive. * s

_ 26. Plaintiff accordingly has “no. adequate relief |

save “through this action, and t halance of con-

yenience requires that the status quo be maintained

during its pendency.”’

If declaratory relief can be anootidea,’ as it certainly could

be (Bland y. Connally, W0-U. S. App. D.°C. 375, 293, .F. 2d

‘S$52). this action for an injunction is fimely to prevént.an

"injustice. It must be eoneeded that an¥ retirement for

moral dereliction is characterized as less than honorable

and will result in Serious injury. As recently stated: ‘It

not only means the loss of numerous benefits in both. the

federal and state systems, but it also results in an unmis-

takable social stigma which greatly limits the oppoftuni-

ties for both publie and private civilian employment.*’ »

_ (Bland vy. Connally, ibid) |

It is apparent, therefore, that the complaint thus

formally. alleges a basis for equitable relief. ae

3. The Case Presented Otherwise Comes Within the 3

. Requirements of the Three Judge Statute: :

Subpar: graph. (1) of 28 U.S.C. 2284 is not applicable to

the facets herein since the motion: for a three- judge court

has been denied. o.

Under subparagraph (2) ad 28 USC 2284, the. United

States Attorney had more than five days notice of the -

he ‘aring on the motion for a three judge court. The com-

plaint and motion for a three judge court were’ filed on

Augnst 29, 1963.’and the argument on the motion for a

three judge court was heard on September 6. 1963.

Under the provisions of subparagraph (3) of 28 USC

2284, Judge Walsh, the district judge to whom application .

a7.

Was made, on August 30, 1963, granted a temporary. re-

straining order (Appendix D, pp. Sa-10a) to prevent irrep-

_ arable. damage to the petitioner, and this order. was ‘con-

tinued in effect ‘until ny ptember 19, 1963, the date of the

hearing before the U.S. Court of Appeals. The said érder

of Judge Walsh ovata a specific. finding that specified

irreparable damage, i.e. loss of his permanent and tempo-

rary commissions, and his pay and allowances pe rtaining ~

thereto, would result if the said temporary: restraining

order was not granted. -

. ‘The provisions of subparagraphs (4) and (5) do not

apply since the motion for a three judge court w as denied.

-It is thus apparent that this case otherwise comes within

.- the pertinent requirements of the three judge statute.

Plainly, therefore, Plaintirf in seeking a _preliminary

injunetion to restrain the enforcement and operation of an

Act of Congress on the ground of repugnance to the Con-

stitution joust proceed under the provisions of the cited

Statute which require a three judge court. “The rule of:

Fle ming vy. Nestor (368 US 603; 80 S.Ct. 1367) concerning

the applicability of 28 USC 2282 w hich states that Section

2282 “does not provide for a case where the. validity of

_arm.act of Congress is merely drawn @ question’ is not

applicably, under the facts of this ease where there ix an

application for an interlocutory or permanent injunction to

restrain the enforcement of an Act of Congress, ‘

Tn conclusion, therefore, a three judge court is necess: ary

to hear petitioner’s motion.for a preliminary and. permia-

nent injunction. ce ae

C. Substantial Questions of Constitutional Validity Arises from

the Language of 10 U.S.C. 3791 et seq

Article V of the Amendments to the Constitution pro-

vides in pertinent part:

‘*No person shall be held to answer for a capital, «

~ otherwise infamous crime, unless on a presentinent or

indictment -of a Grand Jury, except in cases arising in

the land or naval forves, or 5 militia, when in

actual ‘Service in time of war 6+ public danger; nor

shall any person be subject for the same offense to

be twice put in jeopardy of life or limb; nor shall be»

compelled in any criminal case to be a witness against

himself, nor be deprived of life, liberty, or property,

without due process of law; shall private prop-

erty he taken for public use, Without just compe

tion.’

Chapter 360 of. Title 10, U.S.C. “entitied, “Separation

from Regular Army for Moral or Profession Dereclictian.

’

or in. Interests of National. Security’ i me ides i in pertinent

“sections as follows: sat :

Section 3791 authorizes the Secretary of the Army to

convene Selection Boards ‘to. review the record of any

commissioned officer on the active list of the regular army

to determine whe@er he shall be required, because of moral

dereliction, * * * to show eause for his retention on the

active list.”” rn Oy!

On its face this section violates the above section of the

Constitution as follows: *— (sah

4. The words ‘moral dereliction” are left undefined.

If given their ordinary conrotation they mean a.negleet or

failure in duty (Webster's New Warld Dictionary p. 395)

‘of ynaking the distinction between right and wrong in con-

duct (Ibid p. 9596): we have been unable to discover an¥

meaning in common law for these words. However, if given

their militar* covnotation, as stated in. paragraph 4 of AR’

635-105 they apparently mean conduct within the control -

of: the individual concerned, which tends to. bring the’ in-

dividual or the army into, disrepute. spss they

rean the following acts: i

“(1) Disereditable Intonttohal failure to mect personal

financial obligations,

‘affairs ian

(2) Misinanagement of personal a

of duty of the officer

affecting the pertorma ce

_conce ‘rned,

18 : .

G-

ee 19

(3) ae personal affairs to the dis-

eredit of the service. .

’ fe . . . . % ; : _

(4) Intentional omission or imiaatatowmets: of fact in

official statements or records; for the purpose of

misrepresentation. . ‘

(5) Acts of intemperance and/or person f niiseondug

is (6) ommission or “attempted cominission of ‘a -homo-

sexual act or existence of homosexual tendencies.

See AR 635-89.

*(7) Intenfional neglect of or failure to perform duties.

we (8) Conduct. unbecoming an officer: . *

(9) Acts or beLavior not clearly consistent with the

interests of national security (see AR 604-10 and

par. 2b, app. 1).

_ ‘Fhus the ‘Army, because the words have not been defined

jn the Statute and beeause their meaning is Mngertain 4)

law, has, given its own definition of what is ‘fmoral derelic-

tion’, “which is certainly not the commonly’ aceepted sense .

of the w ‘ords,

It would, therefore, appear that this xe ction of the

statute is void fr uncertainty. ,

2. The requirement “to show cause’? compels the officer

to be’ a witness agayy st hinaself, a violation of the Above

section of the Constiftyuon “not to be compelkd to be a

. witness against himself’, As the Supreme Coutft said in

(. ‘ounselman v. Hitcheck (142 U.S. B47):

‘Tt is-an ancient principle of the law of evidence that

a witness shall not be compelled, in any proceeding, to

make’ disclosures or to give testimony which will tend.

to criminate him or subject him to fines, penalties: or

forfeitures. It is impossible that the meaning of the.

constitutional provision can only be that a person shall

not be coingelled ta be a witness against himself in

was to assure that a person should not be compelled,

when acting asa witness in “ye investigation, to ¢ giv ra

a criminal prosecution against himself. The object

» a 2)

testimony which would tend ‘to show that he himself

had committed a crime. The privilege is limited to

ccriminad matters, but it is as %road as the “mischief

against. which it seeks to guard. (Cc auselinan vy.

Hitcheoack 142 U.S. o47.)°* (Italics udded

Thus, in compelling an officer to he a rams against

himself the statute violates the above séction of the Con-

ue ~litution, i

. > : -

Section 3702 provides as follows:

“Boards of Inquiry — ‘‘omposition — Duties --- (a)

Roards of inquiry, cach composed cof three or more,

ceneral officers, shall be convened at such places:as the

Secretary of the Arniy may preseribe, fapecerve evi- wd

dente and make findings and recommendations whether

an officer, required + to show cause under Seciton 3791

of this title; shall be’ retained on tyysnetyve list of the

- Regular Army. — -

‘ ,

fo, “(b) A fair and impartial een hefore a, board

+ ae injuiry shad) be given To each offiger. so) required

to show cause for retenti on.

LE ) Tha board of inquiry determines that the offices

has failed to establish that he should bn retained on

thie active list, it-shall send the record of its proceed-

: ings to a board of fe ae

~ This section is, uncon. fitutional on its face in- that it

preserihes ‘ta fair and impartial hearing’? without detin-

ing what is « ‘fair and in partial hearing?’ or without .

prescribing any standard by which at fair-and impartial

hearing’? may be judged. . The question initediately

arises: Ix. this a fair and inipartial hearing as established

by the Congress under the Administrative Procedures Act

Av hich! providtes im Section 7(e ) 5 U.S. 1006 Ce). ay follows:

ut fe) Bagent dis statutes otherwise provide, the pro-

porent: of a rule or order shall have. burden .of

proot, epee or documentary evidence may be re-

eo ceived, bat every avefey shall as a matter of policy Vv pro-

vieke for the e sclunyon of irrelesant, imuaterial, or un-

/ H

duly repetitious evidence and no sanction shall be

imposed or rule or order be issued except upon causid-

eration of the whole record or such portions thereof

as may be eited by any party and as supperted by and

in accordance with the reliable, probative, and sub-

stantial evidence. Every party shall have the right to

present dhis-case or defense by oral or doéumentary

“evidence, to submit rebuttal evidence, arid to conduct

such cross-examination as may be required for a full

-and-true disclosure of the facts. Ino rule making: or

determining Claims for money. gy beyefits or appli-

cations for initial licenses any egeney may, where the

niterest’ of any party Will not be pre, judiced thereby,

adopt: procedures for the = ubmipgsion. of ill or part of

the evidence in written form.’

tor is ita fair and lunprart tint besring under the provisions

ef AR 625-105, ds changed. Avhich provides in’ pertinest

part in paragraph 10. Appendix IT, as follows:

* *

* * * The instructions will inclule, * :, :

. a. Informiag the board aicmbers that selection of

an officer to show cause for retention is a rina

facie’? cake fortelimination incthe absence of con-

rincing evidence advanced by the respondent for

further wervice; and, that the adverse findings, of

the selection board, standing alone, is sufficient to

support elimination. (Ttalies added)

b. Ev phasizing that the burden of proof rests with

the responde ut to show why Ve should retain his

pre Se nt status,” *- (Italics added) :

Lb will thins appear that the failure of the Congre<s to

define the words ‘fair and impartial hearing’ make this |

~ection 4 void for uncertainty.

This Section is also nneonstitution: f on lis face beeanse:

“it contains the swords “tie oticer has failed to catablish

that he should be retained ow the active list oar hic h words :

Hitt the burden ofeproof te the officer cance pied it. vield-

ton of dae process of law. Due process requires that thie

hurd? ofeproof he upol the proponeny of the ordgr, Tiii-

means that the party mitiating ‘the proceeding has the

° 99

general burden of coming forward with a prima facie case,

but sak the, Army by its own fiat says that its ““in-

camera” findings of the Selection Board eoustitute a prima

facie case, and. unless rebutted, are: sufficient to support

élimination. Thus the Army violates the due process clause

and by its violation attempts to pass the burden of proof

to the respondent.

The Chapter is. unconstitutional on. its face because it

does not grant subpo&ia powers to call witnesses but it

does give’ the Secretary the power to dismiss an_ officer

of the Reguiar Army fer mora! dereliction without givjng

hima the right of confrontation, 8

In the dissenting epinion in the Be pee case (870 US wie

82. S.Ci.1105), Mr. Justice Douglas, with whom Mr. Justice.

Blac k coneurred, stated in pM@tinent part:

‘Dismissal is one: thing; dismissal ‘with stigma’ as”

here, is quite another. . Dismissal’ with stigma is a

severe penaity. In comparabie situations, the Govern-

ment has been required’ to carry the burden. of proof.

Kwong Hai Chew v. Regers, 103 U.S. App. D.C.228,

257 F. 2d 606: Wood v. Hoy, 9 Cir., 266 F. 2d 825,

discharge for race, for religion, for political opinion,

or for beliefs may masquerade under unproved

charges. This right, like the right to be heard, is basic

to our society. Cf. Joint Anti-Fascist Refugee Com-

‘mittee v. MeGrath, 341 U.S. 123, 168,71 S.Ct. 624,

646, 95 UP Ed. 817 (concurring. opinion); Beilan v.,

Board of Public Kdueation, 357 U.S. 399, 421-425, 7s

S.Ct. 1317, 1830-1331, 2 L. Ed. 2d 1414 (dissenting

opinion): Wieman v. Updegraff, 344 U.S. 783,191,

73 S.Ut. 215, 218, 97..L, Ba. 216.” en =

I understand the law, vital when one’s’ employment

righis are. involved (see egg v. McElroy, 360 U.S.

474, 496, 79 S.Ct. 1460, ia. 2 L. Ed. Sd 1377). eal

Faceless informers are ¢ften effective if they need not

take the stand. A fair hearing requires the produc-

tion of the acettser so that cross-examination can tést

his character and re ‘liability.’ :

awe

Here the. petitioner will be retired with the stigma of

“moral dereliction, a severe penalty’ Before the Jeon the

Government was not required to carry the burden of pre

and, therefore, the Board found for eliminatiofis’ Howeve

he fore age risa Martial the A giiy rena as negating

quite (See kone KE, pp. lla-ISa). Before in card

‘the petitioner was denied confroiatation and c¢ross-exanina-

tion of the ‘faceléss informers’? who were his decusers.

But in the Court Martial the right 6f cross-examination

and confroitation was not denied him, and petitioner was

acquitted.” ; a

Before the Board petitioner was glenied a ‘fair hearing”

) which requires*the production of the informers and which

requires the party initiating the “proceeding to come for-

Government through its witnesses presented its -proma

facie case and the petitioner Was acquitted:

The action of the Board, in, viol: ition of the constitutional

rights of the petitioner, should not be permitted to render

“his acquittal by a general court nrartial a-nullity.

The present case is ripe for review.’ As soon’ as the

Secretary of the Army again orders the involuntary re-

tirement of the petitioner, he. will be severed from the

Regular Army with Jess than an honorable retirement. At

stake is.a ian’s professional st: nding, his — rand

) ward With a prima facie eases At the Court Martial, the”

his claim to an honorable retirement. ¢*Wher& the Army:

departs from the statutory standard whiéh prescribes the

hasis on which discharges with be issued, ha Teale ine courts

can Intervene.’ (See Harmon vo Brack ay. oad 2 tO

S.Ct. 483, 2 L. Ed. 505.5 yt ads

-—

‘From the above it can readily be seen that sufstantial

questions of constitutional validity arise from the language

of the Statute itself.

CONCLUSION |

. It is respectfully submitted that a writ of certiorari. -

should issue to review the decision of the Court of \Appeals

for the District of Columbia, or, in the alternative, \to rule

upon the interlécutory order issued by the United States

District Court for the. District of Columbia, and if\ Said

ruling finds that a substantial question of constitutional

validity arises from the language of the statute (10 Use.

S791 et seq.) itself, to rule upon the constitutionality of the

said statute. ;

Wiuuiam G. Downey, Jr.

Northern Virginia Bank Building

Springfield, Virginia

Cuaries D. T. Lexx norr

Northern Virginia Bank Building

. Springtield. Virginia

Attorneys for Petitioner

October, 1963,

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.