Brown v. Schlesinger

• Decision Date: 30 October 1973
• Docket Number: Civ. A. No. 73-349-R.
• Court: U.S. District Court — Eastern District of Virginia
• Parties: Larry E. BROWN v. James R. SCHLESINGER et al.

365 F. Supp. 1204

Larry E. BROWN v. James R. SCHLESINGER et al.

Civ. A. No. 73-349-R.

United States District Court, E. D. Virginia, Richmond Division.

October 30, 1973.

COPYRIGHT MATERIAL OMITTED

Murray J. Janus, Denis C. Englisby, Bremner, Byrne & Baber, Richmond, Va., for plaintiff.

Raymond A. Carpenter, Asst. U. S. Atty., Richmond, Va., for defendants.

MEMORANDUM

MERHIGE, District Judge.

Plaintiff, a member of the Air Force reserve, brings this action against his immediate commanding officer and various other Air Force command personnel. In it he challenges the constitutionality of certain Air Force Grooming regulations governing the wearing of wigs by on duty personnel and seeks an order enjoining the enforcement of those regulations against him.

I. JURISDICTION

Plaintiff alleges several bases for this Court's jurisdiction over his claim. Defendant has challenged the Court's jurisdiction generally. The Court is convinced, however, that it does have jurisdiction over the controversy.

First, jurisdiction is attained by virtue of 28 U.S.C. § 1331. Plaintiff's claim clearly involves a federal question. The essence of his complaint is a challenge to the Air Force regulation governing the wearing of wigs by its personnel. Plaintiff challenges the regulation on the ground that it violates his constitutional rights, including his right to equal protection of law.

The evidence adduced has also shown that, absent a protective order by the Court, his continued refusal to comply with the challenged regulation would likely result, ultimately, in his induction into active service for a period of 24 months. He has shown further that, if activated, the difference between his civilian pay and the Air Force salary, including allowances he would then be receiving, would exceed $10,000.00 over the 24 month period. The Court therefore concludes that the amount in controversy, exclusive of interest and costs, exceeds the $10,000.00 required under 28 U.S.C. § 1331.

The Court is additionally satisfied that it has jurisdiction pursuant to 28 U.S.C. § 1361. While mandamus relief was traditionally confined to ministerial duties, the United States Court of Appeals for the Fourth Circuit in Burnett v. Tolson, 474 F.2d 877 (1973), made clear that suits by those who seek performance of constitutional duties owed them by defendants who have a clear duty to perform said duties and where no other relief is available, are within the scope of 28 U.S.C. § 1361. The present plaintiff bases his claim upon an asserted constitutional right and denial thereof by defendants. As Judge McMillan stated in a similar context in Garmon v. Warner, 358 F.Supp. 206 (W.D.N.C.1973), "Plaintiffs do not ask the courts to require the various defendants to perform a discretionary act; rather they ask that the defendants be required to recognize a constitutional right of the plaintiffs which the defendants threaten to disregard." The Court of Appeals also stated in Burnett that "mandamus jurisdiction under 28 U.S.C. § 1361 permits flexibility in remedy," so that the injunctive and declaratory relief sought here is not inconsistent with this jurisdictional basis.¹

II. RIPENESS

Defendants contend that this matter is not ripe for determination, since plaintiff has not, thus far, been refused attendance at Air Force reserve drills or other training exercises and has not, thus far, been designated as absent without excuse from such drills and exercises for wearing a short hair wig. In short, defendants contend that plaintiff must show that he has already been prejudiced by his refusal to comply with the regulation in question before he can maintain an action challenging the constitutional validity of that regulation. The Court disagrees.

The parties have stipulated that plaintiff's natural hair is presently longer than permitted under the appearance standards found in Air Force Manual 35-10(1-12) (a) (2). It has been plaintiff's past practice to conform to those appearance standards, while on duty, by wearing a short hair wig which, in turn, is in violation of the challenged regulation. While no action has been taken against plaintiff for his past violations of the wig policy, he has been informed by his superior officers that any future attempts to comply with the appearance standards by wearing a short hair wig will result in his being designated absent without excuse from any reserve drills and training exercises he would attempt to attend, and that these absences would likely result in his induction into active service. The Court is satisfied, under these circumstances, that the issues are presented in a sufficiently concrete factual context so as to avoid the type of abstract decision making prohibited under Article III of the United States Constitution. See Abbott Laboratories v. Gardner, 387 U.S. 136, 148-149, 87 S.Ct. 1507, 18 L.Ed.2d 681 (1967). The Court is further satisfied that the threat to plaintiff's ultimate induction into active service for his refusal to comply with the challenged regulation is sufficiently present and is of sufficient gravity to justify the granting of equitable prospective relief by this Court. See Abbott Laboratories v. Gardner, 387 U.S. 136, 148-149, 87 S.Ct. 1507, 18 L.Ed.2d 681 (1967). Plaintiff should not be required to engage in further violations of the regulation under attack before he would have standing to challenge its validity, where the threatened results flowing from such violations, if the regulation were later determined to be valid, would be so totally disruptive of his life. Cf. Ex parte Young, 209 U.S. 123, 165, 28 S.Ct. 441, 52 L.Ed. 714 (1908).

III. FINDINGS OF FACT

Based on the evidence presented, the Court finds the following facts:

The regulation found in Air Force Manual 35-10(1-12)(a)(2) provides:

(2) Hair. Hair will be neat, clean, trimmed, and present a groomed appearance. Hair will not touch the ears or the collar except the closely cut hair on the back of the neck. It will present a tapered appearance. Hair in front will be groomed so that it does not fall below the eyebrows and will not protrude below the band of properly worn headgear. In no case will the bulk or length of the hair interfere with the proper wear of any Air Force headgear. The acceptability of a member's hair style will be based upon the criteria in this paragraph and not upon the style in which he chooses to wear his hair.

The regulation found in Air Force Manual 35-10(1-12)(a)(6) provides:

(6) Wigs. Wigs or hair pieces will not be worn while on duty or in uniform except for cosmetic reasons to cover natural baldness or physical disfiguration. If under these conditions a wig or hair piece is worn, it will conform to Air Force standards.

But for this latter regulation, restricting the wearing of wigs, Air Force personnel, such as plaintiff, with hair longer than permitted under the uniform standards found in Air Force Manual 35-10(1-12)(a)(2) would be able to comply with those uniform standards of appearance, while on duty, by wearing short hair wigs.

The damage plaintiff is threatened with for noncompliance with the Air Force wig regulation is that he would receive unexcused absences from any mandatory training exercises he attempted to attend while wearing a short hair wig. Under the prevailing Air Force practice such unexcused absences would likely result in his call to active service. Plaintiff has in fact been informed that his failure to comply with the wig regulation followed by an unexcused absence arising therefrom would result also in a recommendation by his superior officers that he be activated for a period of 24 months. Plaintiff has shown that such activation would cause him a net loss of income in excess of $10,000. In addition, plaintiff would suffer a disruption in his life, and other damages, not subject to pecuniary evaluation.

Plaintiff's natural hair is presently longer than permitted under the above regulation. He has, however, while on duty, sought to comply with the regulation by wearing a short hair wig which conforms to the appearance standards set forth therein.

Plaintiff, who voluntarily enlisted in the Virginia Air National Guard, agreed at the time of his enlistment to abide by all dress and appearance standards as set forth in the Air Force regulations, has no physical disfiguration giving rise to a need to wear a wig for cosmetic reasons.

IV. CONCLUSIONS OF LAW

The issue presented is not complex. Plaintiff does not seek a declaration that the Air Force may not limit the outward appearance of its reservists. Nor does the Air Force seriously contend that the wearing of wigs per se interferes with military duty, as the wig regulation with respect to bald headed personnel and those with physical disfigurations makes clear that wigs generally are not considered in conflict with the demands of military service.

A reading of the Air Force regulation governing the length and grooming of hair, Air Force Manual 35-10(1-12)(a)(2), leads to the inescapable conclusion that it is merely an appearance regulation. The defendants do not contend the contrary. Therefore, assuming arguendo the invalidity of the wig regulation under attack, Air Force Manual 35-10(1-12)(a)(6), the length of plaintiff's natural hair would not serve as an independent basis for disciplinary action under the hair grooming regulation, Air Force Manual 35-10(1-12)(a)(2), where, as here, plaintiff is able to meet the appearance standards set forth therein by wearing a short hair wig. Rather, the issue is whether the distinction made between wigs for bald headed men and men with physical disfigurations, on the one hand, and short hair wigs for men with natural long hair, on the other hand, is constitutional.

The United States Court of Appeals for the Fourth Circuit has ruled that freedom of grooming is protected by the Constitution. Massie v. Henry, 455 F.2d 779 (4th Cir. 1972). That right, in some instances, falls...