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ORLANDO v. LAIRD

Nos. 477, 478, Dockets 35270, 35535.

443 F.2d 1039 (1971)

Salvatore ORLANDO, Plaintiff-Appellant, v. Melvin LAIRD, individually and as Secretary of Defense of the United States; and Stanley R. Resor, individually and as Secretary of the Army of the United States, Defendants-Appellees. Malcolm A. BERK, Plaintiff-Appellant, v. Melvin LAIRD, individually, and as Secretary of Defense of the United States, Stanley R. 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 April 20, 1971.

Attorney(s) appearing for the Case

Leon Friedman, New York Civil Liberties Union, New York City (Burt Neuborne, Kunstler, Kunstler & Hyman, Norman Dorsen and Kay Ellen Hayes, New York City, on the brief), for plaintiff-appellant Salvatore Orlando.

Norman Dorsen, New York City (Leon Friedman, Burt Neuborne, New York Civil Liberties Union, Theodore C. Sorensen, Kay Ellen Hayes, and Marc Luxemberg, New York City, on the brief), for plaintiff-appellant Malcolm A. Berk.

Edward R. Neaher, U. S. Atty., E. D. New York (Robert A. Morse, Chief Asst. U. S. Atty., David G. Trager, Edward R. Korman, and James D. Porter, Jr., Asst. U. S. Attys., E. D. New York, on the brief), for defendants-appellees.

Before LUMBARD, Chief Judge, and KAUFMAN and ANDERSON, Circuit Judges.

ANDERSON, Circuit Judge:

Shortly after receiving orders to report for transfer to Vietnam, Pfc. Malcolm A. Berk and Sp. E5 Salvatore Orlando, enlistees in the United States Army, commenced separate actions in June, 1970, seeking to enjoin the Secretary of Defense, the Secretary of the Army and the commanding officers, who signed their deployment orders, from enforcing them. The plaintiffs-appellants contended that these executive officers exceeded their constitutional...

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