435 F2d 691 Arnheiter v. H Chafee U S

435 F.2d 691

Marcus A. ARNHEITER, Plaintiff-Appellant,
John H. CHAFEE, U. S. Secretary of the Navy, Does One through Ten, inclusive, Defendants-Appellees.

No. 23825.

United States Court of Appeals, Ninth Circuit.

November 24, 1970.

Marvin E. Lewis (argued), of Lewis, Rouda & Winchell, San Francisco, Cal., for plaintiff-appellant.

Leonard Schaitman (argued), Washington, D. C., Ralph A. Fine, Morton A. Fine, William D. Ruckelshau, Asst. Atty. Gen., Washington, D. C., James L. Browning, U. S. Atty., San Francisco, Cal., for defendants-appellees.

Before CHAMBERS, WRIGHT and TRASK, Circuit Judges.


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Appellant, a lieutenant commander of the United States Navy, brought action against the Secretary of the Navy for a declaratory judgment and for relief in the nature of mandamus.


Three months after being given command of a destroyer escort ship, assigned to duty in waters off Vietnam, appellant was relieved of command on March 31, 1966. A hearing was held, with appellant present and represented by counsel. The record was forwarded to the Chief of Naval Personnel who sustained the action, as did the Secretary of the Navy. This action was brought in December 1967, seeking to have the district court direct the Secretary of the Navy to convene a court of inquiry "or other appropriate hearing pursuant to U. S. Naval Regulations" to investigate the circumstances surrounding his relief from command. Appellant remains in active Navy service.


After reviewing the voluminous record, the district court concluded that the Navy's actions were internal, administrative matters involving the judgment of Naval Command concerning duty assignment and promotion under Vietnam War conditions, that the Navy acted in substantial conformance with regulations and well within the bounds of fundamental due process, and granted a motion for summary judgment of dismissal. Arnheiter v. Ignatius, 292 F.Supp. 911 (N.D.Cal.1968).


We affirm so much of the district court's opinion as holds that the federal courts have no jurisdiction.


"(J)udges are not given the task of running the Army. * * * The military constitutes a specialized community governed by a separate discipline from that of the civilian. Orderly government requires that the judiciary be as scrupulous not to interfere with legitimate Army matters as the Army must be scrupulous not to intervene in judicial matters." Orloff v. Willoughby, 345 U.S. 83, 93, 73 S. Ct. 534, 540, 97 L.Ed. 842.


See also E. Sherman, Judicial Review of Military Determinations, 48 Military L.Rev. 91 (1970).