Cinciarelli v. Carter

• Decision Date: 21 August 1981
• Docket Number: No. 80-1727,80-1727
• Citation: 662 F.2d 73
• Parties: Colonel Roland F. CINCIARELLI, Appellant, v. The Honorable Jimmy CARTER, President of the United States, et al.
• Court: U.S. Court of Appeals — District of Columbia Circuit

Page 73

662 F.2d 73

213 U.S.App.D.C. 228

Colonel Roland F. CINCIARELLI, Appellant, v. The Honorable Jimmy CARTER, President of the United States, et al.

No. 80-1727.

United States Court of Appeals District of Columbia Circuit.

Argued Jan. 16, 1981.

Decided Aug. 21, 1981.

Appeal from the United States District Court for the District of Columbia (D.C. Civil Action No. 80-0801).

William S. Hemsley, Jr., with whom Frank A. S. Campbell was on reply brief for appellant.

John Oliver Birch, Asst. U. S. Atty., with whom Charles F. C. Ruff, U. S. Atty., Royce C. Lamberth and Kenneth M. Raisler, Asst. U. S. Attys., Washington, D. C., were on brief for appellees.

Before WRIGHT and ROBB, Circuit Judges and PENN ^*, United States District Court Judge for the District of Columbia.

Opinion for the court filed by Circuit Judge ROBB.

ROBB, Circuit Judge:

This is an action for declaratory and injunctive relief by Colonel Roland F. Cinciarelli, an officer in the United States Marine Corps Reserve. Colonel Cinciarelli alleges that the Commandant of the Marine Corps unlawfully withdraw a signed and executed Standard Written Agreement (SWAG) which provided for Cinciarelli's services on active duty for a five-year period. The District Court concluded that the pertinent statutes permitted the Commandant to withdraw the agreement prior to the first day of the active duty term provided for therein. Cinciarelli v. Carter, 490 F.Supp. 302 (D.D.C.1980). Having reached this conclusion as a matter of law the court granted the defendants' motion for summary judgment; the court found it unnecessary to pass on the defendants' secondary contention that the agreement was entered into in violation of Marine Corps Order 1001.52, a standard order which had not been waived. Because our view of the Commandant's right to withdraw the agreement differs from that of the District Court we remand the case to that court. On remand the court will determine, after an evidentiary hearing if necessary, whether the agreement was made in violation of Order 1001.52, and if so whether compliance with that order had been waived.

The armed services grant Standard Written Agreements to Reserve Officers pursuant to 10 U.S.C. §§ 679-680 (1976). ¹ These agreements provide for definitive terms of active duty and ensure that the Reservist will not be released involuntarily except according to specified procedures, including a hearing before a board of officers. 10 U.S.C. §§ 679(a), 680(a) (1976). In the absence of a SWAG, a Reservist may be released from active duty at any time, and such a change in status is committed to the sole discretion of the President or the Secretary of the appropriate armed service. ² See Abruzzo v. United States, 513 F.2d 608, 611 (Ct.Cl.1975); Woodward v. Moore, 451 F.2d 346, 347-48 (D.D.C.1978).

In 1978 Colonel Cinciarelli was serving an active duty pursuant to a Standard Written Agreement that covered the period from July 1, 1978 to June 20, 1979. On October 17, 1978 the Marine Corps offered to Cinciarelli a SWAG providing for a five-year period of active duty from June 21, 1979 to June 20, 1984. Cinciarelli accepted this offer by signing the SWAG in the presence of two witnesses and returning it to the Commandant of the Marine Corps on November 20, 1978. In early 1979, a Reserve Officer Selection Board recommended Cinciarelli for promotion to the grade of brigadier general. That recommendation was approved by the President and Colonel Cinciarelli's nomination was confirmed by the Senate in May of 1979. At that time the Marine Corps had authorized billets for 66 active duty general officers. See 10 U.S.C. § 5443 (1976).

Shortly after Cinciarelli's promotion was confirmed by the Senate, the Commandant of the Marine Corps determined that Cinciarelli was not required on active duty in the rank of brigadier general, and his SWAG was formally withdrawn on June 11, 1979, ten days prior to the commencement of the term covered by the agreement. The Commandant explained the reason for the withdrawal as follows:

Your promotion to brigadier general while serving in (active duty) status would create a major difficulty. Specifically, there is no billet presently available to which a Marine brigadier general serving on active duty with the Reserve Establishment can be assigned, nor is there likely to be in the foreseeable future. A contributing factor to this situation is the fact that it is anticipated that the Marine Corps will be required to absorb a reduction of three active duty general officer billets by the end of FY 1980.

(J.A. 25) Cinciarelli was offered two options: he could relinquish his promotion, remain on active duty at the rank of colonel, and possibly earn retirement at the completion of his active duty, or he could be released from active duty upon his promotion to brigadier general and subsequently become eligible for retirement at age 60. (J.A. 37, 42-43) Cinciarelli was then 51 years old, had first been commissioned as an officer in the Marine Corps Reserve in 1953, and had served on active duty for a total of 14 years. Colonel Cinciarelli was unwilling to make the choice put to him by the Commandant and instead filed this lawsuit. On July 1, 1980, after the District Court ruled against him, Cinciarelli was promoted officially to the rank of brigadier general and was released involuntarily from active duty.

Cinciarelli argued in the District Court that his SWAG became a binding contract the moment he executed it. The court, however, held that the Commandant's unilateral withdrawal was lawful and consistent with the statutory scheme. This conclusion was based on the language of 10 U.S.C. § 680(a), in which Congress granted Reserve Officers a right to a hearing before a board of officers prior to involuntary release "during the period of the agreement." The District Court interpreted the quoted phrase to mean that no rights accrued to Cinciarelli under the SWAG until June 21, 1979, the first day of the active duty term. Because the withdrawal occurred ten days before that date, the court found that Cinciarelli was not entitled to either the hearing or the severance pay guaranteed by section 680. Although this interpretation is not facially unreasonable or inconsistent with the statutory language, we believe it gives insufficient weight to Congress' intention in enacting these statutes and hinders the purposes Congress sought to promote.

Sections 679 and 680 were first enacted as sections 235 and 236 of the Armed Forces Reserve Act of 1952, ch. 608, 66 Stat. 481. One express purpose of the Reserve Act was "to enact ... certain new provisions of law which have been shown to be necessary to correct existing defects in policies or practices relating to the Reserve and the individual members thereof." S.Rep.No.1795, 82nd Cong., 2d Sess. 2 (1952), U.S.Code Cong. & Admin.News 1952, p. 2005. Thus, the Act was characterized frequently by its House managers as "the Reserve Bill of Rights". See, e. g., 97 Cong.Rec. 13159, 13160 (1951); 98 Cong.Rec. 9017 (1952). The cornerstone of this "Reserve Bill of Rights" was the active duty contract provision. See 97 Cong.Rec. 13158, 13161 (1951). This provision was necessary, according to both the House and the Senate, "to assure a reservist who enters upon voluntary extended active duty in time of peace that he will not be arbitrarily released from active duty and to guarantee him protection against such release." S.Rep.No.1795, 82 Cong., 2d Sess. 27 (1952); H.R.Rep.No.1066, 82d Cong., 1st Sess. 44 (1951), U.S.Code Cong. & Admin.News 1952, p. 2033. Indeed, Congress attached such importance to the active duty contracts that it made them immediately available to Reservists under the terms of the Act, while the Act's other provisions did not take effect until six months later. Compare section 235(f), 66 Stat. 491, with section 802, 66 Stat. 505. See also 97 Cong.Rec. 13161 (1951).

The House Report described in some detail the problems confronting the Reservist in the early 1950's:

In order to stimulate the voluntary participation of reservists on extended active duty, this bill provides authority for the Secretaries of the departments to offer standard written agreements to reservists covering periods of active duty up to five years. Probably the greatest deterrent to voluntary active duty for extended periods is the uncertainty of the individual as to a period for which he will be retained by the Armed Force. The active-duty contracts will alleviate this condition .... In return for this protection the reservist must obligate himself to remain on active duty for the contract period.

Prior to the outbreak of hostilities in Korea a large portion of the standing Air Force establishment consisted of reservists who were voluntarily serving on extended active duty. The other Armed Forces had similar personnel on active duty. Whenever it became necessary to reduce the strengths of the Armed Forces, reservists were among the first to be released with the resulting disruption of their plans and careers. Such persons were forced, unexpectedly and on short notice, to seek other employment and otherwise to readjust their lives.

H.R.Rep.No.1066, 82d Cong., 1st Sess. 25 (1951).

The Reserve Act addressed these concerns by authorizing the use of active duty agreements, by requiring a hearing prior to involuntary release during the period of the agreement except in enumerated cases, and by providing severance pay based on the unexpired period of service under the agreement for the Reservist who is released involuntarily from active duty. 10 U.S.C. § 680(a), (b) (1976). The value of the active duty contract in allowing Reservists to plan their futures was particularly emphasized in the House discussions of the bill. Representative Brooks gave the following example:

For instance, the Secretary of Air could go down to the University of North Carolina and say: "We need a professor here for a particular...