Anderson v. Laird, 18591.

• Court: U.S. Court of Appeals — Seventh Circuit
• Writing for the Court: HASTINGS, Senior Circuit , PELL, Circuit and REYNOLDS
• Citation: Anderson v. Laird, 437 F.2d 912 (7th Cir. 1971)
• Decision Date: 14 January 1971
• Docket Number: No. 18591.,18591.
• Parties: Pvt. E2 Donald Jack ANDERSON, NG26382581, Plaintiff-Appellant, v. Melvin LAIRD et al., Defendants-Appellees.

437 F.2d 912 (1971)

Pvt. E2 Donald Jack ANDERSON, NG26382581, Plaintiff-Appellant, v. Melvin LAIRD et al., Defendants-Appellees.

No. 18591.

United States Court of Appeals, Seventh Circuit.

January 14, 1971.

George C. Pontikes, Chicago, Ill., for plaintiff-appellant.

William J. Bauer, U. S. Atty., Chicago, Ill., for defendants-appellees; John Peter Lulinski, Jeffrey Cole, Matthias A. Lydon, Asst. U. S. Attys., of counsel.

Before HASTINGS, Senior Circuit Judge, PELL, Circuit Judge and REYNOLDS, District Judge.¹

PELL, Circuit Judge.

This is one of an apparently growing class of cases involving the claim of interference with constitutional rights, usually multiple, arising out of authoritative discouragement or outright prohibition of the manner and style in which one would adorn himself whether by raiment or natural exfoliation.

In the present case the plaintiff, Donald Jack Anderson, is appealing from an order of the United States District Court for the Northern District of Illinois which denied his motion for a preliminary injunction which would have enjoined Anderson's induction into the United States Army pending the determination of the issues raised in his complaint.

Prior to the events giving rise to his complaint, Anderson was a member of the Illinois Army National Guard. As such, he was a member of the Ready Reserve of the United States Army. 10 U. S.C. § 269(b).² The issues presented by his complaint deal generally with his right to wear his hair "in a style currently fashionable"³ without interference or adverse action against him by his superiors in the Guard.

Section 673a(a) (1) of Title 10, United States Code, authorizes the President to order to active duty any member of the Ready Reserve who is "not * * * participating satisfactorily" in his reserve duties.⁴ Such authority has been delegated by the President to the defendant Secretary of Defense and by him to the defendant Secretary of the Army. Exec. Order No. 11366, 3 C.F.R. 312 (Supp.1967), 10 U.S.C. § 673a.

"Satisfactory participation" is defined in Army Regulation 135-91, dealing specifically with reserve components, and Army Regulation 600-20, dealing with all components. Paragraph 5(d) (2) of AR 135-91 defines satisfactory participation to include "attendance at all scheduled unit training assemblies * * * unless excused." No credit for attendance is given a member physically present "unless he is in the prescribed uniform, presents a neat and soldierly appearance, and performs his assigned duties in a satisfactory manner as determined by the unit commander." "Neat and soldierly appearance" is further defined by AR 600-20 ¶ 31(a), as it read when plaintiff was charged with unsatisfactory participation:

"The hair to include sideburns will be well groomed, cut short or medium length and neatly trimmed at all times."

Anderson's complaint alleges that for four years prior to February, 1970, he had attended all meetings, obeyed all rules and assumed all obligations of his position as a member of the Illinois Army National Guard. On three separate occasions during February and March 1970, he attended training assemblies while wearing his hair "in a style currently fashionable." His unit commander informed him, apparently on each occasion, that his hairstyle violated the regulation. He was declared an unsatisfactory participant. Such declaration caused him to have more than five unsatisfactory attendances in one year⁵ and thus made him liable to be ordered to active duty in the Regular Army pursuant to 10 U.S.C. § 673a, supra.

On March 30, 1970, plaintiff was informed by the defendant Adjutant General of the Illinois Army National Guard that he would be ordered to active duty and that he could file an appeal. Plaintiff did appeal, claiming that others in his unit had hairstyles similar to his but were not reprimanded in any way. His appeal was denied on July 1, 1970, and Anderson was ordered to active duty commencing July 11, 1970.

This action was filed on July 10, 1970. It seeks orders in the nature of mandamus directing the defendant officers of the Illinois Army National Guard to reinstate plaintiff in the Guard and enjoining the other defendants from ordering Anderson to active duty in the Regular Army.

The district court denied the request for a preliminary injunction on July 10. It is from this denial alone that Anderson now appeals.

The scope of our review of the denial of a temporary injunction is limited. "It is well established that the issuance of a temporary injunction rests in the sound discretion of the trial court. On appeal, an order granting or denying such an injunction will not be disturbed unless there is a clear showing of an abuse of the discretion so exercised." Progress Development Corp. v. Mitchell, 286 F.2d 222, 229 (7th Cir.1961). Discretion is abused only where no reasonable man would take the view adopted by the trial court. Particle Data Laboratories, Inc. v. Coulter Electronics, Inc., 420 F.2d 1174, 1178 (7th Cir.1969).

Among the several factors to be weighed by a district court in granting or denying a preliminary injunction is the probability that plaintiff will ultimately prevail on the merits. Tele-Controls, Inc. v. Ford Industries, Inc., 388 F.2d 48, 50 (7th Cir.1967).

On the basis of applicable law and the facts as they appear before us, we are not persuaded that there is any reasonable probability of plaintiff's ultimate success in his litigation.

Anderson challenges the action taken against him by the Army and the National Guard on three grounds. He first asserts that he has a right under the First and Ninth Amendments to wear his hair as he wishes and that such right may not be infringed by the government absent "substantial justification." See Breen v. Kahl, 419 F.2d 1034, 1036 (7th Cir.1969). If Anderson were completely in civilian status, his position would have legally persuasive stature.

However, "the rights of men in the armed forces must perforce be conditioned to meet certain overriding demands of discipline and duty." Burns v. Wilson, 346 U.S. 137, 140, 73 S.Ct. 1045, 1048, 97 L.Ed. 1508 (1953). It cannot be seriously disputed that certain constitutional rights are and must be suspended or curtailed in the name of military discipline. Raderman v. Kaine, 411 F.2d 1102, 1104 (2d Cir.1969), cert. den. 396 U.S. 976, 90 S.Ct. 467, 24 L.Ed.2d 447.

And, in matters properly within the area of military discretion, it is not for civil courts to judge whether the military has properly determined the balance between military needs and personal rights. SeeBurns, supra, 346 U.S. at 140, 73 S.Ct. 1045.

In Orloff v. Willoughby, 345 U.S. 83, 93-94, 73 S.Ct. 534, 540, 97 L.Ed. 842 (1953), the Court dealt with military duty assignments and said:

"We know that from top to bottom of the Army the complaint is often made, and sometimes with justification, that there is discrimination, favoritism or other objectionable handling of men. But judges are not given the task of running the Army. The responsibility for setting up channels through which such grievances can be considered and fairly settled rests upon the Congress and upon the President of the United States and his subordinates. 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."

Anderson does not raise on this appeal, and, as far as we can tell, did not raise at the hearing below, the possible question of whether any different treatment should be accorded the reservist or Guard soldier inasmuch as a substantial portion of his time is spent in civilian pursuits rather than military. While we perhaps therefore are not compelled to consider this matter, it is our opinion that no different treatment should be accorded the part-time soldier. He has undertaken a type of military duty on a voluntary basis and cannot be heard to complain if the legitimate requirements of necessity do curtail to some extent the manner of his appearance in civilian life.

The Army apparently remains singularly unimpressed by the strength Samson found in flowing locks. While presumably still concerned with physical capabilities on the part of soldiers, the Army also has expressed regulatory interest in the appearance of its personnel. While a neat and tidy appearance by standards somewhat more conservative than those adopted by the Beatles may avail little in jungle guerrilla warfare, we are not prepared to say that the Army's concern for appearance generally is not one of legitimacy and subject to Army determination.

Thus we can find no justification warranting our interference with the discretionary decision of the military to impose certain standards of appearance to govern its members. We note that other courts have recently reached a like conclusion in cases substantially similar to the instant one. Gianatasio v. Whyte, 426 F.2d 908 (2d Cir.1970), cert. den. 400 U.S. 941, 91 S.Ct. 234, 27 L.Ed.2d 244 (1970), Byrne v. Resor, 412 F.2d 774, 775 (3d Cir.1969), Raderman v. Kaine, supra, 411 F.2d at 1105, and Smith v. Resor, 406 F.2d 141, 145 (2d Cir.1969) and cases cited therein.

In addition to his First and Ninth Amendments argument, Anderson asserts that AR 135-91 and AR 600-20 are so vague and uncertain as to amount to a denial of due process of law. He finds particularly offensive the use of the standard "neat and soldierly" and the delegation of the ultimate definition of the standard to individual unit commanders. Anderson asserts that such a standard lacks sufficient precision to inform those subject to it of what conduct on their part will violate it.

By this standard the military has sought to grant unit commanders discretion in dealing with the appearance of the men under their command. This, as we have already...