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DISABLED AMERICAN VETERANS DEPT. OF NEW YORK

August 20, 1973

DISABLED AMERICAN VETERANS DEPARTMENT OF NEW YORK, INC., Plaintiff,
v.
The UNITED STATES of America, et al., Defendants


Bruchhausen, District Judge.


The opinion of the court was delivered by: BRUCHHAUSEN

MEMORANDUM and ORDER

BRUCHHAUSEN, District Judge.

 The plaintiff moves for a preliminary injunction, restraining the defendants from discontinuing the operation of the Naval Hospital at St. Albans, Queens County, New York, and for the appointment of a three-judge court.

 The plaintiff claims it represents 28,000 "Honorably Discharged" Veterans.

 THIS COURT LACKS JURISDICTION OF THIS ACTION.

 The defendant, United States, not having consented to suit, is immune therefrom. See Armstrong v. United States, D.C., 233 F. Supp. 188, affirmed in 9 Cir., 354 F.2d 648, cert. denied in 384 U.S. 946, 86 S. Ct. 1472, 16 L. Ed. 2d 543.

 The individual defendants are also immune therefrom. The decision to close a military hospital is committed by the Constitution and Federal Statutes to the discretion of the Secretary of Defense.

 The Constitution states that Congress shall have power to provide for the common Defense (See Art. I, Sec. 8, cl. 1) and to maintain a Navy (See Art. I, Sec. 8, cl. 13).

 10 U.S.C. § 125(a), in part, requires the Secretary of Defense to provide more effective, efficient, and economical administration and operation of his Department and 40 U.S.C. § 483(b) requires each executive agency to continuously survey property under its control to determine which is excess property.

 The Secretary of Defense also acts under Article II, Section 1 of the Constitution whereunder he administers the pertinent laws of Congress. See Springer v. Philippine Islands, 277 U.S. 189, 48 S. Ct. 480, 72 L. Ed. 845.

 The Secretary, having acted within his discretion, the same sovereign immunity as applies to the United States, as a defendant, attaches to the individual defendants. See Armstrong v. United States, D.C., 233 F. Supp. 188, affirmed in 9 Cir., 354 F.2d 648, cert. denied in 384 U.S. 946, 86 S. Ct. 1472, 16 L. Ed. 2d 543 and National Association of Government Employees v. Richardson, Civil Action No. 5199, (D.R.I., filed May 17, 1973).

 THE "HONORABLY DISCHARGED" VETERANS, REPRESENTED BY THE PLAINTIFF, ARE NOT ENTITLED TO USE THE NAVAL HOSPITAL AT ST. ALBANS.

 Naval hospitals are primarily for the medical care of Navy and Marine Corps personnel on active duty and other members of the uniformed services on active duty. 32 C.F.R. § 728.1, 10 U.S.C. §§ 1074(a), 6201.

 "Honorably discharged veterans" are only entitled to hospitalization and medical care from the Veterans ...


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