# Petition for a Writ of Certiorari — Browder v. Vance > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385601_1366%3A2 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition for a Writ of Certiorari - **Published:** January 1, 1964 - **Citation:** 375 U.S. 970 ## Text 9 . : . G ; fm eee OMice Supreme Court, US: | } ry « . 5O4 FILED. . OCT 30 1963 = . mT. 16, CLERK IN THE — Court of the Huited States OcTOoRER T ERM, 1963 os / 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. } % - ) r : k . : . % ; 2 t . > ; 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 . — : Pe ’ : . ae / dae JEWEL RicHarp Browprk, Petitioner / A 5 = "¢ FA i. ; cs Vv. an ach . ff oy | 7, 7 oe \ 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 , o* 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. t 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). ee . 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 f 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 ; ae 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. z 4 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 2 y+ 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. 4 (a) We ods a] 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 ts 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 : On 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. © 1202(b) of Tithe 2s USC. and Rale 9!, of the Rules of the: 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 ‘ , & g _ 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. 7 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. ” 10 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, ae 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 13 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 a 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. a) . 14 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: oo **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- s 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 : . o G- ee 19 : ; - : ° rc © - : (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 A H be oe 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 he 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. 24 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, --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385601_1366%3A2. Public record. Not legal advice.