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BERK v. LAIRD

No. 900, Docket 35007.

429 F.2d 302 (1970)

Malcolm A. BERK, Plaintiff-Appellant, v. Melvin LAIRD, individually, and as Secretary of Defense of the United States, Stanley S. Resor, individually, and as Secretary of the Army of the United States, and Col. T. F. Spencer, individually, and as Chief of Staff, United States Army Engineers Center, Fort Belvoir, Defendants-Appellees.

United States Court of Appeals, Second Circuit.

Decided June 19, 1970.

Attorney(s) appearing for the Case

Theodore C. Sorensen, New York City (Peter P. Smith, New York City, on the brief), and Leon Friedman, New York City (Burt Neuborne, New York Civil Liberties Union, New York City, on the brief), for plaintiff-appellant.

Norman Dorsen, New York City, for 101 lawyers and law professors, amici curiae.

Edward R. Neaher, U. S. Atty., Eastern District of New York (Robert A. Morse, Chief Asst. U. S. Atty., James D. Porter, Jr., Chief, Civil Division, Asst. U. S. Atty., Cyril Hyman and Robert Rosenthal, Asst. U. S. Attys., Eastern District of New York, on the brief), for defendants-appellees.

Before ANDERSON and FEINBERG, Circuit Judges, and MacMAHON, District Judge.

ANDERSON, Circuit Judge.

Malcolm A. Berk, a private first class enlisted in the United States Army, received orders on April 29, 1970, requiring him to report to Fort Dix, New Jersey, for dispatch to South Vietnam. On June 3, he commenced on action against the Secretary of Defense, Secretary of the Army, and the officer who signed his orders, contending that these executive officials of the United States Government have exceeded their constitutional authority by commanding...

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