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Attachment 10 Harry Hoskin, et al. v. Stanley Resor - 1972

United States Court of Appeals for the District of Columbia Circuit
No. 71-1513.—September Term, 1972

[Civil Action 3089-71]

Harry Hoskin, et al.
V.
Stanley Resor, Secretary of the Army, appellant

Appeal from the United States District Court for the District of Columbia

Before Bazelon, Chief Judge, Robinson, and Wilkey, Circuit Judges

21 40 Stat. § 1406, p. 1151; 110 U.S.App.D.C. 375. 381, 293 F.2d 852, 858 (1961).

JUDGMENT

This cause came on for consideration on the record on appeal from the United States District Court for the District of Columbia and was argued by counsel. On consideration of the foregoing, it is

Ordered and Adjudged by this Court that the judgment appealed from in this cause is hereby affirmed for the reasons set forth in the attached memorandum.

Per Curiam for the Court.

Hugh E. Kline,
Clerk.

MEMORANDUM

The Secretary of the Army appeals from a judgment of the District Court declaring that Harry Hoskin and the members of his class are entitled to honorable discharges from the United States Army and “the rights appertaining thereto.” Hoskins v. Resor, 324 F. Supp. 271 (D.D.C. 1971).

Appellees are veterans of the Russian Railway Service Corps, a group of railroad men recruited mostly from the Great Northern Railroad, during the course of World Wai; I for service in Siberia. Id. at 271.

Stripped to its legal core, the dispute is whether the employment relationship, in fact if not in form, amounted to performance of a contract of enlistment in the United States Army.

That the matter may be as reduced is due in the part to the Government’s reliance, in opposing summary judgment, solely on the claim that plaintiffs were not military personnel.

It never suggested that their claims to honorable discharges should be denied because their service records were marred, and there is of course nothing of such in the record.

Thus, if the contract is established, the declaratory judgment properly provides that plaintiffs are entitled to the honorable discharges.

Initially, the Secretary asserts that the District Court erred in finding a contract of enlistment, and in dismissing his claim of laches. We have carefully reviewed the District Court’s excellent opinion and find its rulings on these points correct. Hoskin v. Resor, 324 F.2 Supp. 271 (D.D.C. 1971) : see United States v. Royer, 268 II,S. 394 (1925) ; Bennett v. United States, 19 Ct. Cl. 379 (1884) ; Van Bourg v. Nitze, 388 F.2d 557 (1967).

But the Secretary, no novice in strategy and tactics will not be refuted so easily. He took the position in the District Court that the plaintiffs had no judicial remedy and, as conceded in his answer to the complaint, no unexhausted administrative remedies.

Discovering, by virtue of the District Court’s adverse ruling, that he was wrong about the existence of a cause of action in the court he has apparently decided for the first time on this appeal that he must have been wrong about the administrative remedy as well.

He asserts that the Servicemen’s Readjustment Act of 1944, ch. 268. 52 Stat. 387, provided an administrative Board of Review with the power to hear and determine this claim at any time within the first fifteen years it sat.

To escape the effect of his answer below, the Secretary relies on a claim that exhaustion of administrative remedies is jurisdictional within the meaning of Fed. R. Civ. P. 12(h) (3), and thus may be raised at any time.

We do not consider the jurisdictional assertion, sec Bannercraft Clothing Co. v. Renegotiation Board. U.S. App. D.C. , 466 F.2d 3451 (1972), because we hold that the administrative remedy did not exist there.

The Board of Review', under the terms of its enabling statute, now 10 U.S.C. § 1553 (1970), was neither designed nor empowered to hear claims that turn solely on whether an individual was ever a soldier at all.

The provision empowers the Board to review the “type and nature of the discharge or dismissal of any f former member].” It would take a fertile imagination to suggest that within such a scheme “no” discharge is a “type” of discharge, for the Board’s accumulated expertise would have practically no value in determining the question of membership in the first instance. Indeed, the Supreme Court severely limited the jurisdiction of the Board to records of actual military service in the last year in which appellees could have brought this claim, see Harmon v. Brucker. 355 TJ.S. 579. 583 (1958).

Finally, the Secretary himself, who is the sole reviewing authority over the Board so long as he stays within the jurisdiction granted by Congress, see Harmon v. Brucker, 355 U.S. 579, 580 (1958), has consistently denied that these men were even in military service at all. We hold that there was no available administrative remedy under the Servicemen’s Readjustment Act of 1944, and accordingly we affirm the decision of the District Court.

Affirmed.

[Attachment 10]: Harry Hoskin, et al. V. Stanley Resor, Secretary of the Army, appellant," in Hearing before the Committee on Venteran's Affairs, United States Senate, Ninety-Fifth Congress, First Session on S. 247, S. 1414, S. 129, and Related Bills, Washington DC: US Government Print Office, 25 May 1977, pp. 331-332.

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