BOREMAN, Circuit Judge.
Plaintiff, Milton C. Reed, challenges the right of certain officers of the United States Navy to separate him from naval service with a general discharge under honorable conditions. This appeal is from an order of the United States District Court for the Eastern District of Virginia setting aside prior restraining orders and denying plaintiff's request for a permanent injunction to prevent the defendants from so discharging him. For the reasons hereinafter stated, we are of the opinion that the District Court should be affirmed in its denial of a permanent injunction.
The pertinent facts are stated in the opinion of the District Court, reported at 187 F.Supp. 905. Reed, a Chief in the United States Navy with over eighteen years of service to his credit when this suit was brought, is under an enlistment which will not expire until March 21, 1962, at which time he will, unless sooner
Prior to December 1959, on several occasions Reed had been observed under the influence of intoxicants and was warned by his Division Officer. Following his conviction by a summary court martial on December 14, 1959, plaintiff was restricted and forfeited $150 for one month. He was warned by his Executive Officer, Medical Officer and Commanding Officer that he should abstain from drinking alcoholic beverages since it was apparent that he was unable to drink moderately.
On April 11, 1960, an automobile driven by Reed while he was under the influence of intoxicants collided with an automobile occupied by Vice Admiral Sabin, Chief of Staff, Supreme Allied Command, Atlantic Fleet. Reed was hospitalized and his case was diagnosed as chronic alcoholism. On May 20, 1960, he was convicted by a special court martial and was sentenced to restriction within certain limits for four months and forfeiture of $150 per month for a like period. That sentence was later modified.
On June 10, 1960, Commander Mayo, having reviewed the record of plaintiff, including an incident which occurred on November 2, 1956,
The defendants, appearing in the name of the United States, filed a motion for summary judgment or, in the alternative, for dismissal. Plaintiff likewise filed a motion for summary judgment. To determine the facts, the court heard evidence and found as follows:
Plaintiff cites Harmon v. Brucker, 355 U.S. 579, 78 S.Ct. 433, 2 L.Ed.2d 503 (1958), and Burns v. Wilson, 346 U.S. 137, 73 S.Ct. 1045, 97 L.Ed. 1508, rehearing denied, 346 U.S. 844, 74 S.Ct. 3, 98 L.Ed. 363 (1953), in support of his contention that the court below had jurisdiction. In both of these cases, however, all other possible remedies had been exhausted prior to invoking jurisdiction of the District Court. In Harmon v. Brucker, supra, the Supreme Court construed language in an Army regulation which had been previously construed by the Secretary of the Army in a manner beyond his statutory grant of authority. It is plain that there was no reason for judicial action until after there had been an administrative construction of the regulation. In reversing the lower courts, which had held that the District Court lacked jurisdiction, the Supreme Court said, 355 U.S. at 582, 78 S.Ct. at 435:
Though there is no majority opinion in Burns v. Wilson, supra, the opinion written by Chief Justice Vinson and concurred in by three other justices states that District Courts have authority to protect a person's constitutional rights if the military authorities fail to protect them. That was a habeas corpus proceeding, however, and quite different factually from the instant case.
The District Court below had jurisdiction to determine its jurisdiction and also to decide the merits of plaintiff's claim of violation of constitutional rights. If the claim were well founded, the Navy would have no authority to proceed with the discharge as contemplated, and judicial relief from this illegality would be available. The constitutionality of the discharge procedure is a justiciable issue but once the plaintiff's claim is found and declared to be without merit, the discharge procedure may continue as before. Here, as in Harmon v. Brucker, there is no direct judicial review of the administrative proceedings except insofar as necessary to determine the legality of prescribed administrative procedure. It is the basic procedure that is attacked and which may be reviewed.
The District Court cited three cases to support its holding that it had no jurisdiction:
We conclude that, where there is a substantial claim that prescribed military procedures violate one's constitutional rights, the District Courts have jurisdiction to resolve the constitutional questions. See Estep v. United States, 327 U.S. 114, 120, 66 S.Ct. 423, 90 L.Ed. 567 (1946); Heikkila v. Barber, 345 U.S. 229, 234-5, 73 S.Ct. 603, 97 L.Ed. 972, rehearing denied, 345 U.S. 946, 73 S.Ct. 828, 97 L.Ed. 1371 (1953) (dictum); cf. Harmon v. Brucker, 355 U.S. 579, 78 S.Ct. 433, 2 L.Ed.2d 503 (1958); American School of Magnetic Healing v. McAnnulty, 187 U.S. 94, 108, 23 S.Ct. 33, 47 L.Ed. 90 (1902).
Plaintiff argues that his right of review is derived from the Administrative Procedure Act, 60 Stat. 237 (1946), as amended, 5 U.S.C.A. §§ 1001-1011. We do not think that Act is relevant here. This is an injunctive proceeding to prevent alleged injury resulting from administrative action purportedly violating plaintiff's constitutional right. The District Court is not called upon in the instant case to directly review administrative action, as is contemplated by the Act. The general equity jurisdiction of the court is, instead, invoked to determine whether the defendants have the constitutional right, in the instant circumstances, to proceed with the discharge of plaintiff from the Navy.
Congress has not expressly established any procedure for discharges from the naval service. It was determined by the defendants that Reed was to be discharged under Navy Regulation C-10310,
On September 10, 1959, the challenged regulation
The word "department" as used in 5 U.S. C.A. § 22 refers to "executive" departments of which the Department of Defense is one. 63 Stat. 579 (1949), 5 U.S. C.A. § 1; Rev.Stat. § 159 (1875) as amended, 5 U.S.C.A. § 2. "Department" in that section does not refer to "military" departments such as the Department of the Navy. See 63 Stat. 579 (1949), 5 U.S.C.A. § 171; 10 U.S.C. § 101(7) (1958) and compare with the immediately preceding citations. In March 1959 and some months prior to the issuance of the regulation here attacked, the Department of Defense had issued regulations which, according to the Federal Register, were approved by the Secretary of Defense on January 14, 1959, 24 Fed.Reg. 1704-06 (1959).
Counsel for both parties apparently disregarded 5 U.S.C.A. § 22 as the authority for pertinent Navy Regulation C-10310 and assumed that this regulation is authorized by 10 U.S.C. § 6011 (1958), which reads as follows:
At no place is 10 U.S.C. § 6011 cited as authority for either the general regulations of the Department of Defense or the more specific regulations issued by the Secretary of the Navy. The Department of Defense regulations, § 44.3, 24 Fed.Reg. at 1705 (1959), authorized the issuance of implementing regulations by each of the Armed Forces, and the Navy regulation in question was issued in accordance with the earlier Department of Defense regulations dealing with administrative discharges.
Under 5 U.S.C.A. § 22, department heads are authorized to issue regulations for, among other things, the government of their respective departments. The Constitution of the United States, article I, section 8, gives Congress the authority "To make Rules for the Government and Regulation of the land and naval Forces." (Emphasis added.) According to the congressional declaration of purpose in 72 Stat. 514 (1958), 50 U.S. C.A. § 401, legislation creating the Department of Defense (63 Stat. 579 (1949), 5 U.S.C.A. § 171), was enacted "to provide for the establishment of integrated policies and procedures for the departments, agencies, and functions of the Government relating to the national security." Thus, by reading the constitutional and statutory provisions together, it is clear that the Department of Defense and its Secretary (63 Stat. 580 (1949), 5 U.S.C.A. § 171a), are empowered to make rules for the government of the Armed Forces. It is our view that the discharges of enlisted military personnel fall within the purview of the congressional grant of power in 5 U.S.C.A. § 22. It is thus appropriate for the Secretary of Defense to issue regulations under 5 U.S.C.A. § 22, dealing with such discharges. Pertinent regulations were issued in March 1959, as before noted, and provided for the issuance of implementing regulations by each of the Armed Forces within ninety days after the date of issue of the Department of Defense regulations.
Congress has provided authority in 63 Stat. 581 (1949), 5 U.S.C.A. § 171a (f), for the Secretary of Defense to delegate some of his powers:
Since there is no apparent prohibition of authority to delegate 5 U.S.C.A. § 22 functions, the Secretary of Defense is empowered to delegate, specifically to the Department or Secretary of the Navy (an "organizational entity" and official of the Department of Defense, respectively, 63 Stat. 579 (1949), 5 U.S.C.A. § 171; 10 U.S.C. § 5031 (1958)), and to others, authority given to him (Secretary of Defense) under 5 U.S.C.A. § 22 to issue and promulgate regulations dealing with the discharge of enlisted military personnel. In the instant case, we conclude that Navy Regulation C-10310, issued by the Secretary of the Navy, comes within the scope of 5 U.S.C.A. § 22 and the Department of Defense regulations dealing with Administrative discharges. However, another step is to be considered in determining the ultimate validity of the regulation.
Navy Regulation C-10310 must also comply with 10 U.S.C. § 6011 even though that statute, which provides that Navy regulations must be approved by the President, is not cited by the Secretary of the Navy as authority for the regulation in question.
Congress enacted 3 U.S.C. § 301 (1958), effective October 31, 1951, expressly authorizing the President to delegate certain functions:
On July 1, 1955, President Eisenhower issued Executive Order No. 10621, published in 20 Fed.Reg. 4759, pp. 82-83 of the United States Code, following 3 U.S. C. § 301 (1958), and in the 1960 Supplement to 3 U.S.C.A. § 301, pp. 156-57, the pertinent part of which follows:
It is noted that this Order dealt with power granted in Rev.Stat. § 1547 (1875),
Thus, 10 U.S.C. § 6011 can be read into the Executive Order 10621 in place of Rev.Stat. § 1547 (1875), and the power and authority of the President to approve Navy Regulations is delegated to the Secretary of Defense.
As indicated above, the Secretary of Defense approved the regulations entitled "Subchapter C — Military Personnel; Part 44 — Administrative Discharges," 24 Fed.Reg. 1704 et seq. (1959), on January 14, 1959; section 44.3 (24 Fed. Reg. at 1705) thereof requires each of the Armed Forces to which the regulations are applicable
Furthermore, there is a presumption, though rebuttable, that regulations published in the Federal Register are valid. 49 Stat. 502 (1935), 44 U.S.C.A. § 307. There is also a presumption, in the absence of clear evidence to the contrary, that official action taken has been duly exercised. United States v. Chemical Foundation, Inc., 272 U.S. 1, 14-15, 47 S.Ct. 1, 71 L.Ed.2d 131 (1926); Shafer v. United States, 229 F.2d 124 (4th Cir.), certiorari denied, 351 U.S. 931, 76 S.Ct. 788, 100 L.Ed. 1460 (1956).
In addition to the above stated presumptions, regulations issued by the heads of executive departments under 5 U.S.C.A. § 22 are presumed valid. See Edwards v. Madigan, 281 F.2d 73, 77 (9th Cir. 1960). It was held in Boske v. Comingore, 177 U.S. 459, 470, 20 S.Ct. 701, 706, 44 L.Ed. 846 (1900), that such a regulation
Boske deals with a regulation issued by the Secretary of the Treasury pursuant to Rev.Stat. § 161 (1875), the predecessor of 5 U.S.C.A. § 22 (the former is exactly the same as the latter except that the last sentence of the latter was added in 1958), but the language quoted above from Boske is applicable to any regulation issued under the authority of that section. See United States ex rel. Touhy v. Ragen, 340 U.S. 462, 469, 71 S.Ct. 416, 95 L.Ed. 417 (1951); McDonald v. Lee, 217 F.2d 619 (5th Cir. 1954), vacated and petition for habeas corpus dismissed on ground that the cause was moot, 349 U.S. 948, 75 S.Ct. 893, 99 L.Ed. 1274 (1955); Carter v. Forrestal, 175 F.2d 364 (D.C. Cir.), certiorari denied, 338 U.S. 832, 70 S.Ct. 47, 94 L.Ed. 507 (1949); Fussell v. United States, 100 F.2d 995 (5th Cir. 1939).
Since it appears that all counsel assumed that 10 U.S.C. § 6011 was the basic authorization for Navy Regulation C-10310, they have not discussed whether the regulation falls within the
Reed directs attention particularly to Navy Regulation C-10313 (and other regulations referred to therein), wherein it is provided that Navy personnel contemplated for discharges other than honorable and for stated reasons other than mere unsuitability have certain so-called privileges as follows: (a) To have his case heard by a board of not less than three officers; (b) to appear (unless in civil confinement or otherwise unavailable) in person before such board; (c) to be represented by counsel who, if reasonably available, should be a lawyer; (d) to submit statements in his own behalf. He argues that these "privileges" are in fact rights which, in order to meet the requirements of constitutionally guaranteed due process, must be provided and protected. The principal thrust of his contention is that Regulation C-10310 is unconstitutional in that it makes no provision for a hearing at which a charge of unsuitability can be considered and determined.
Plaintiff relies on Greene v. McElroy, 360 U.S. 474, 79 S.Ct. 1400, 3 L.Ed.2d 1377 (1959), for support of his claim that, without due process of law, he was deprived of his Fifth Amendment rights of liberty ("freedom to practice his chosen profession") and property ("petitioner's employment"). The Department of Defense had denied security clearance to Greene, an executive of a private corporation doing business with the Department where military secrets were involved. The contract between the corporation and the Government required the former to exclude from its premises persons who did not have security clearance. Greene was dismissed from his employment and was unable to secure other employment as an aeronautical engineer, his chosen profession. He challenged the validity of the regulations, issued by the Secretary of Defense without prior express authority of either the President or Congress, which resulted in barring him from access to classified information on the basis of confidential statements made by informants to investigators. The Court held that the regulations, issued without the approval of Congress or the President, were thus invalid to the extent that Greene's rights were denied "on the basis of a fact determination rendered after a hearing which failed to comport with our traditional ideas of fair procedure."
It is true that the regulations, pertinent here, make no provision for a hearing such as Reed contends he should be given prior to his general discharge from the Navy. But Congress has provided for a review of discharges and dismissals from military departments under 10 U.S.C. § 1553. This statute contemplates a mandatory hearing, upon request after discharge, before a board of five members, at which hearing the person requesting review is permitted to appear in person or by counsel. Such review shall be based upon all available records of the military department concerned and such other evidence as may be presented. Witnesses shall be permitted to testify either in person or by affidavit. Certainly at such a hearing Reed would be entitled to present rebutting testimony and to have the decision based upon the record of the matters considered at the hearing. The board is granted the authority (except in case of a discharge or dismissal resulting from the sentence of a general court martial) to change, correct or modify any discharge or dismissal, and to issue a new discharge in accord with the facts presented to the
Under 10 U.S.C. § 1552, the Secretary of a military department is authorized to correct any military record when he considers it necessary to correct an error or remove an injustice. By this section there is no provision made for a formal hearing at which the serviceman or his counsel may be present and the procedure is not mandatory, yet a civilian board may be called to act in behalf of the Secretary in considering the matter.
If Reed were to be given a general discharge under honorable conditions as proposed, he could apply for relief under 10 U.S.C. § 1552 and, if no relief were afforded thereby, he could proceed to obtain the mandatory hearing provided by 10 U.S.C. § 1553.
There is no constitutional right to a particular form of remedy. Neblett v. Carpenter, 305 U.S. 297, 59 S.Ct. 170, 83 L.Ed. 182 (1938), rehearing denied, 305 U.S. 675, 59 S.Ct. 355, 83 L.Ed. 437 (1939). A fact-finding hearing prior to discharge is one way to protect plaintiff's alleged rights, but it is not the only means of protection and Congress has provided other ways of preventing injustices and correcting errors in connection with military discharges. By statute, Reed is provided an opportunity to avoid the injury he claims he will suffer when the discharge becomes effective.
Since we are of the opinion that 10 U.S.C. § 1553 provides relief in the nature of a full hearing before a Board of Review, we will follow the accepted judicial practice of avoiding the resolution of constitutional issues where an alternative ground for disposing of the case is present. See Boynton v. Com. of Virginia, 364 U.S. 454, 81 S.Ct. 182, 5 L.Ed.2d 206 (1960); Peters v. Hobby, 349 U.S. 331, 338, 75 S.Ct. 790, 99 L.Ed. 1129 (1955); Ashwander v. Tennessee Valley Authority, 297 U.S. 288, 347, 56 S.Ct. 466, 80 L.Ed. 688 (1936) (Brandeis, J., concurring).
The fact that the hearing provided by statute does not precede, but follows, Reed's separation from the service does not make the hearing inadequate. The statutory review is a part of the protective procedure and due process requirements are satisfied if the individual is given a hearing at some point in the administrative proceedings. See Ewing v. Mytinger & Casselberry, Inc., 339 U.S. 594, 598, 70 S.Ct. 870, 94 L.Ed. 1088 (1950); Inland Empire Dist. Council, etc. v. Millis, 325 U.S. 697, 710, 67 S.Ct. 1316, 89 L.Ed. 1077 (1945); Opp Cotton Mills, Inc. v. Administrator of the Wage and Hour Division, 312 U.S. 126, 152-3, 61 S.Ct. 524, 85 L.Ed. 624 (1941); United States v. Illinois Cent. R. R., 291 U.S. 457, 463, 54 S.Ct. 471, 78 L.Ed. 909 (1934). Those fundamental requirements of fairness which are of the essence of due process in the proceedings pursuant to the pertinent regulations are met by the provisions of the statutes above noted. Whether the absence from the regulations of the protections to which Reed is entitled would violate the demands of the Constitution is not an issue to be dealt with if the statute itself supplies these protections.
For the reasons herein stated, the decree of the District Court discharging prior restraining orders and denying plaintiff's request for a temporary and permanent injunction is affirmed without prejudice to the plaintiff's resort to the adequate administrative remedy provided by statute. The injunction pending appeal will be vacated and discharged.
"(1) Enlisted personnel may be separated, by reason of unsuitability, with an honorable or general discharge, as warranted by their military record. Such discharge regardless of attendant circumstances, will be effected only when directed by or authorized by the Chief of Naval Personnel. Discharge by reason of unsuitability will not normally be issued in lieu of disciplinary action except upon the determination by the Chief of Naval Personnel that the interests of the service as well as the individual will best be served by administrative discharge. From time to time the Chief of Naval Personnel may issue special instructions to certain field activities for the elimination of the unsuitable among enlisted personnel.
"(2) Attention is directed to article C-10313 which prescribes the procedure for submission of reports and recommendations for discharge by reason of unsuitability.
"(3) Discharges by reason of unsuitability are effected to free the service of persons considered unsuitable for further naval service because of:
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"(e) Alcoholism: chronic, or addiction to alcohol (frequently a manifestation of a basic defect in personality development).
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"(g) Other good and sufficient reasons, as determined by the Chief of Naval Personnel."