
    
      Lester W. McKENZIE, Plaintiff, v. Captain R. C. KIRKPATRICK, Jr., Commanding Officer, Squadron VR-5, Naval Air Station, Moffett Field, and the Acting Commanding Officer of Squadron VR-5, Naval Air Station, Moffett Field, Defendants.
    No. 35301.
    United States District Court N. D. California, S. D.
    May 14, 1956.
    William J. Scammon, Burlingame, Cal., for plaintiff.
    
      Lloyd H. Burke, U. S. Atty., Charles Elmér ■' Collett, " Asst. -U¡ -S’. '‘Atty.> San Francisco, Cal., for defendants.
   ROCHE, Chief Judge.

This is., an action for án injunction and declaratory relief. Jurisdiction, is based upon 28 U.S'.C.A; '§§ 1331, 1346, and 2201. ....

Plaintiff, alleges Jn his .complaint that he is an 'aviation machinist .chie'f in the Navy of the United States, áttaehed to Squadron VR-5, locatéd at Naval Air Station, Moffett Field, County of Santa Clara, State of California;, that Captain -R. C. Kirkpatrick-arid, the other defendants ' aré the" commanding, officers!' of Squadron VR-5; that'the defendants, or persons acting under their control 'and .orders, convened a.Board of Officers oh or about March 2, 1956, for the purpose of .recommending that plaintiff be discharged .’ on March 7, 1956, the termination date of his.current enlistment, with,the specific recommendation that plaintiff’'not be recommended for re-enlistment’;- that said Board of Officers was convened and recommended at defendants’ insistence that plaintiff, be discharged without Recommendation for re-enlistment. ".Plaintiff alleges that said hearing was illegal and unconstitutional in that it was. an unreasonable and capricious exercise of its discretionary powers' not to recommend plaintiff for re-enlistment. There follow details of the adverse effects that’ such discharge will have on plaintiff. -The adverse recommendation was transmitted to the .Chief .of Naval Personnel. -On April 14, 1956, plaintiff received notice from the Deputy to the Assistant Chief for Personnel' Control that his request for Re-enlistment was refused. The prayer of the complaint is for an order restraining and enjoining the defendants from not recommending plaintiff for ré-enlistment at the termination of his current military service.

' Several cases have béen recently decided in this district involving the issuance of discharge certificates by the army. St. Helen, v. Wyman, D.C. 139 F.Supp. 545; Levin v. Gillespie, D.C.1954, 121 F.Supp. 726; and Marshall v. Wyman, D.C., 132 F.Supp. 169. To avoid confusion it should be noted that the typeqf ¡discharge to be proffered t.o plaintiff is not i,n dispute in the ipstánt case. ,De¡fendánts’ answer, asserts that a certificate of Konorablé discharge will bé given to plaintiff upon his ffeléasé from the . service..' The sole . question .presented, jtherefore, is whether this court can order defendants to", recommend petitioner for reenlistment. .

The, adverse .recommendation made .by the defendants herein appears tq be their own personal evaluation of plaintiff’s . service in the military. Just as -a civilian .employer-might be called .upon,to make a recommendation based,.on his- own personal observation and .knowledge of a .subordinate,,the defendants herein were called upon to personally evaluate plain-tjff. .A. recommendation by,, a. superior ^necessarily involves (elements.-of an ,eni.ployee’s service which - cpn only be. observed and- equated by a superior- work-ting in proximity with the employee being considered.. Some of the elements that ¡comprise a recommendation) may not sometimes be capable, of judicial proof.

But regaRdless of-'the nature of “recommendations” this-: courtlacks «the .'power to compel the defendants- to . make a recommendation one .way or the . other.. As stated in Palmer v. Walsh, D.C.1948, 78 F.Supp. 64; and Marshall v. Crotty, 1 Cir., 1950, 185 F.2d 622; a district court do.es not have original jurisdiction to issue writs .of mandamus, and the Declaratory. Judgment Act, 28 U.S.C. § 400 did not .enlarge .the jurisdiction of the District Courts- .of the United States. The granting of declaratory judgment in this case .would in effect be an unwarranted enlargement of the District Court’s jurisdiction over defendants. It is well enough to be attuned to 'the use of new remedial concepts, but it is something else to increase jurisdiction beyond the other provisions of law. by a clever use of remedies. Palmer v. Walsh, supra.

Defendánts havé already exercised their power to make a specific recommendation, to wit, that, plaintiff not be recommended for re-enlistment. Howevér, is procedure provided by law which plaintiff can pursue in his own behalf, Although plaintiff has already been refused relief by the Bureau of Naval Per-' sonnel, he can following his discharge from his current'enlistment, within a period of three cal efidar months apply for at’any. recruiting, station, loss of continuing service, and within 90 days without loss of benefits or bonuses. Further,.he can make to the Board of Correction of and Navy Records, under Title 5 U.S.C.A. § 191a,

“We think Congress intended that the Board’s full and ‘final’ review should not be subjected to a further.review, or series of reviews, in the courts. We may supthere pose that Congress considered the heavy burden that would be imposed upon the courts if they were required to review the findings upon which Army discharges are based.”

As the law now stands, this court Jacks jurisdiction to review or grant rere-enlistment Jief. Harmon v. Brucker, supra. Therewithout fore the relief prayed for by plaintiff mUst be denied.'

Plaintiff has'cited the following cases in his' submitted memorandum of law. Williams v. Fanning, 1947, 332 U.S. 490, 68 S.Ct. 188, 92 L.Ed. 95; Levin v. Gillespie, D.C.1954, 121 F.Supp. 726; Marshall v. Wyman, D.C.1955, 132 F.Supp. 169; St. Helen v. Wyman, D.C., 139 F.Supp. 545; Harmon v. Brucker, D.C.1956, 137 F.Supp. 475; Patterson v. Lamb, 1946, 329 U.S. 539, 67 S.Ct. 448, 91 L.Ed. 485; Gentila v. Pace, 1951, 90 U.S.App.D.C. 75, 193 F.2d 924.

Williams, v. Fanning, supra, can' be distinguished from the instant case in that jurisdiction in said action was based : on Judicial Cqde. § 24(6), 28 U.S.C. § 41 (6), now. ,2& Ü.S.C.Á...§ 1339, which gives District Courts original in postal matters.

The remaining cases deal with the Court’s jurisdiction to review the type of discharge certificates proffered' by the military. The order in the case of Levin v. Gillespie, D.C.1954, 121 F.Supp. 726, was vacated by an order of the court dated March 24, 1955 and filed March 29, 1955. The other cases cited do not help plaintiff’s position, but rather clearly the, jurisdictional limitations of this court, to review military -'For example, the following is cited, from the case of Gentila v. Pace, supra [90 U.S.App.D.C. 75, 193 F.2d 927]:  