Before Mr. Justice REED, retired,* WILBUR K. MILLER, Chief Judge, and WASHINGTON, Circuit Judge.
UNITED STATES COURT OF APPEALS DISTRICT OF COLUMBIA CIRCUIT.
DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE WASHINGTON
This suit challenges the power of the Secretary of the Navy to issue a discharge "under conditions other than honorable" *fn1 to an inactive reservist for alleged subversive conduct engaged in while in inactive status, without permitting the reservist to confront the witnesses against him.
In 1942 appellant received a commission as an officer in the United States Naval Reserve and was called to active duty. His active service ended in 1946, when he was separated from active Navy duty "under honorable conditions" and transferred to inactive duty in the United States Naval Reserve. As an inactive reservist, appellant was not by law required to engage in any military activity, such as weekly drills or summer encampments, and in fact he has not done so. *fn2 Appellant never became a member of any reserve component, and has never received any order or directive from the United States Navy since the time of his separation from active duty.
In December, 1955, the Commandant of the Eleventh Naval District sent to appellant a memorandum containing allegations charging that appellant had been a member of the Communist Party from 1947 to 1950, and had belonged to various other allegedly subversive groups in subsequent years. *fn3 The memorandum was accompanied by a narrative statement reciting appellant's allegedly subversive associations in the period subsequent to his separation from active duty, and by an extremely detailed nineteen point interrogatory. *fn4 Appellant was advised that his failure or refusal to respond to any of the charges made against him in the narrative statement, or to any interrogatory, would be considered as an admission of the truth of the matter asserted, and of all derogatory inferences flowing therefrom. There was also included a suggested form of resignation agreeing to accept a discharge "under other than honorable conditions." Bland failed to make any answer to the narrative statement or the interrogatories, and declined to tender a resignation in the form suggested. *fn5
Shortly thereafter appellant demanded and was accorded a hearing before a local security board. At this hearing no evidence was adduced by the Navy in support of the allegations in the narrative statement. Appellant was offered, and expressly declined, an opportunity to produce witnesses to refute the charges made against him. Findings of fact were made by the board and approved by the Commandant of the Eleventh Naval District, and it was recommended that appellant be discharged "under conditions other than honorable."
These findings and recommendations were reviewed and affirmed without material change by the Bureau of Naval Personnel Security Review Board, and in consequence, on March 31, 1956, appellant was issued a discharge "under conditions other than honorable." Some months earlier, while this administrative review was pending, appellant had filed a complaint in the United States District Court for the Southern District of California, seeking to enjoin the administrative proceedings against him, and naming as defendants the Commandant of the Eleventh Naval District and the members of the local security board which had made the first adverse findings. The complaint included a prayer for a declaratory judgment that appellant "not be deprived of his status as an honorably separated veteran of World War II pursuant to any provisions of said SecNavinst 5521.6" - a reference to the relevant administrative regulation. The District Court denied an injunction and dismissed the complaint. On appeal, this action was affirmed by the Ninth Circuit. Bland v. Hartman, 1957, 245 F.2d 311.
Appellant then applied to the Navy Discharge Review Board, and later to the Navy Board for Correction of Naval Records. Both boards declined to change the character of his discharge to honorable. Finally, in December of 1959, Bland filed suit against the Secretary of the Navy in the United States District Court for the District of Columbia, seeking a declaration that the action of the Secretary was void, and a judgment directing the issuance of an honorable discharge. The Secretary's answer denied lack of authority, pleaded res judicata by reason of appellant's previous suit, and asserted that the District Court lacked jurisdiction over the subject matter. Motions for summary judgment were made by both parties. The District Court granted appellee's motion and denied that of appellant. This appeal followed. I.
We turn first to the Government's contention that the decision of the Ninth Circuit in Bland v. Hartman (supra) is res judicata and bars the present action. We cannot agree. The action of the District Court for the Southern District of California appears to have been based in part on the fact that the defendants there named had completed their own functions in the matter and had referred the case to higher authority in the national capital, prior to the hearing on the prayer for an injunction. Under such circumstances, the denial of injunctive and declaratory relief can hardly be regarded as an abuse of discretion. The Ninth Circuit, in affirming, viewed the appeal from the dismissal of the complaint as premature, because no final judgment of dismissal had been entered by the District Court. As to the denial of the injunction, the court pointed out that Bland had failed to exhaust his administrative remedies. The action of the Ninth Circuit cannot, therefore, be viewed as precluding Bland from bringing this suit against the ultimate authority responsible for his discharge - the Secretary of the Navy - after he had exhausted his administrative remedies by applying to the Navy Discharge Review Board and the Navy Board for Correction of Naval Records. Restatement, Judgments § 54 (1942); cf. Gelpi v. Tugwell, 1 Cir., 1941, 123 F.2d 377. II.
Coming now to the merits of the case, we must examine Bland's contention that the Secretary of the Navy is without authority to issue a punitive discharge to an inactive reservist on the basis of secret information relating to his associations subsequent to separation from active duty. No statute purporting expressly to vest such authority in the Secretary has been cited to us, and we think it clear that none exists. The question before us, then, is whether such authority exists by fair implication from general statutes, or by reason of the inherent nature of the military establishment.
The relevant administrative directives are contained in SecNavinst 5521.6, and its Appendix 3. These directives purport to authorize a uniform and undifferentiated standard for dismissal of all naval personnel, regular and reserve, active and inactive. Affiliation or association with any group listed in the Attorney General's list of questionable organizations, or sympathetic association with any member of such a group, is made a criterion for the application of the standard. Appendix 3, "Local Security Board Procedures," purports to authorize consideration by board members of non-disclosable investigative files.
The Government relies principally upon three statutes as sources of authority for these directives:
(1) 10 U.S.C. § 6011 (1958) (formerly 34 U.S.C. § 591), which confers upon the Secretary of the Navy the ...