Beard v. Stahr/Opinion of the Court
The judgment of the District Court is vacated and the cause is remanded with directions to dismiss the complaint. The action is premature. The appellant will not be removed from the active list of the Regular Army unless the Secretary of the Army exercises the discretionary authority to remove him conferred by 10 U.S.C. § 3794, 10 U.S.C.A. § 3794. The Secretary has not stated that he will so exercise his discretion as to remove appellant. If the Secretary does not remove the appellant it will be unnecessary to pass on the constitutional objections which have been urged. If appellant is removed, the Court is satisfied that adequate procedures for seeking redress will be open to him. Compare Aircraft & Diesel Equipment Corp. v. Hirsch, 331 U.S. 752, 772 773, 67 S.Ct. 1493, 1503, 91 L.Ed. 1796. Accordingly, the application for a stay is denied.
Judgment vacated and cause remanded with directions.
THE CHIEF JUSTICE is of the opinion that further consideration of the question of jurisdiction should be postponed to the hearing of the case on the merits and would grant the application for a stay.
Mr. Justice FRANKFURTER took no part in the decision of this case.
Mr. Justice DOUGLAS, with whom Mr. Justice BLACK concurs, dissenting.