Caruso v. Toothaker

• Decision Date: 03 September 1971
• Docket Number: Civ. No. 71-301.
• Citation: 331 F. Supp. 294
• Parties: Leicester F. CARUSO, v. Cpt. James S. TOOTHAKER, Commanding Officer, Headquarters Detachment, Pa. Army National Guard, and Secretary of Defense, The Pentagon, Washington, D. C.
• Court: U.S. District Court — Middle District of Pennsylvania

331 F. Supp. 294

Leicester F. CARUSO, v. Cpt. James S. TOOTHAKER, Commanding Officer, Headquarters Detachment, Pa. Army National Guard and Secretary of Defense, The Pentagon, Washington, D. C.

Civ. No. 71-301.

United States District Court, M. D. Pennsylvania.

September 3, 1971.

Egnal & Egnal, Philadelphia, Pa., J. Thomas Menaker, Harrisburg, Pa., for plaintiff.

S. John Cottone, U. S. Atty., Scranton, Pa., for defendants.

OPINION

MUIR, District Judge.

Leicester F. Caruso, a private in the Army National Guard, brings this suit seeking injunctive relief from an order of the Department of the Army directing him to report for active duty in the United States Army for 18 months and 17 days. Jurisdiction is predicated upon 28 U.S.C. §§ 1331 and 1361. After a hearing and argument, we deny the application for a preliminary injunction.

10 U.S.C. § 673a¹ confers authority on the President to order to active duty any member of the Ready Reserve of an armed force who is not "participating satisfactorily" in a unit of the Ready Reserve, has not fulfilled his statutory reserve obligation and has not served in active duty for a total of 24 months. By Executive Order No. 11366, the President delegated this authority to the Secretary of Defense, together with authority to delegate this power in turn to any of the secretaries of the military departments of the Department of Defense.

Criteria for satisfactory participation are set forth in Army Regulation 135-91 (12) which provides:

"A member fails to participate satisfactorily when he accrues in any 1-year period a total of five or more unexcused absences from scheduled unit training assemblies. * * *"

AR 135-91(5) (d) provides:

"Satisfactory participation is defined as follows:

(1) * * *

(2) Attendance at all scheduled unit training assemblies as a member of a paid drill unit of the Army National Guard or Army Reserve, unless excused by proper authority as provided herein. A member present at a scheduled unit training assembly will not receive credit for attendance thereat 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. When a member attends a unit training assembly and does not receive credit therefor, he will be charged with an unexcused absence and the unit commander will follow the same procedures applicable when a member fails to attend a unit training assembly."

Caruso accumulated five unexcused absences from unit training assemblies within a year and has been ordered to report for active duty. After appealing through the appropriate Army channels, he brought this suit to obtain judicial review of the Army procedures and determinations resulting in that order.

It is well-settled that purely discretionary decisions of military officials within their valid jurisdiction are beyond the permissible scope of review of the Federal Courts.² Nevertheless, the allowable scope of review extends to the questions (1) whether military orders were "promulgated in violation of the military's own regulation", O'Mara v. Zebrowski, 447 F.2d 1085 (No. 19,288, 3d Cir., 1971), (2) whether procedures employed by the military comport with the requirements of due process in light of the context in which the procedures operate, O'Mara v. Zebrowski, supra (at p. ___), Ansted v. Resor, 437 F.2d 1020, 1023-1024 (7th Cir. 1971); Crotty v. Kelly, 443 F.2d 214 (1st Cir. 1971), and (3) whether or not the military has acted within the jurisdiction conferred on it by valid law. Winters v. United States, 281 F.Supp. 289, (E.D.N.Y.1968) aff'd 390 F.2d 879 (2d Cir. 1968).

Caruso received his first two unexcused absences when he did not appear for either of the two drill periods scheduled for Sunday, October 11, 1970. After an abnormally extended first pregnancy, plaintiff's wife went into labor on Thursday, October 8 and gave birth at 10:00 A.M. Saturday, October 10. At some time prior to the scheduled morning drill period on October 10, Caruso reached a Sergeant Hall at the National Guard Headquarters Detachment in Harrisburg and obtained oral permission to be absent from both morning and afternoon drill periods on October 10. No mention was made during this telephone conversation of permission to be absent from the October 11 drill periods. Caruso testified that he believed that since the same reasons for his absences on Saturday still existed on Sunday, it was unnecessary to obtain additional permission for the Sunday absences.

Caruso received his third and fourth unexcused absences on May 15, 1971, when he failed to appear for two drill periods. He had scheduled an appointment with an insurance client for the morning of Saturday, May 15, but had been denied³ permission to be absent and to make up the absence by "equivalent training."⁴ He was informed that he would receive unexcused absences if he did not appear for the scheduled drill periods, but he elected to take the unexcused absences.

Caruso received his fifth unexcused absence the following day, May 16, 1971. His unit commander, Captain James S. Toothaker, assigned three reasons for his decision to withhold credit for attendance.

(1) Caruso arrived 45 minutes late for the unit training assembly; instead of reporting directly to a superior officer upon late arrival, he went to his scheduled class;

(2) During the two-hour MOS (Military Occupational Skill) class, Caruso was observed working with materials relating to his insurance business instead of devoting his complete attention to the subject matter of the class; and

(3) At 11:00, Caruso signed out to attend a church service, but instead of attending church he drove to his home where he watched his child while his wife went to church.

For these reasons Captain Toothaker determined⁵ that Caruso's participation in the morning session of May 16, 1971, was unsatisfactory.

Caruso alleges seven defects in the procedures employed by the Army in his case.

1. FAILURE OF UNIT COMMANDER TO MAKE PROPER DETERMINATION. Plaintiff contends that Captain Toothaker failed to make a proper determination whether "any cogent or emergency reasons existed which prevented the member from attending" as required by AR 135-91(e) (2)⁶. This contention is without merit. During the afternoon training session on May 16, Captain Toothaker called Private Caruso to his office and asked him whether he had, in fact, attended church during the morning session. Caruso admitted that he had not attended church and stated he disliked the National Guard and he would take advantage of every opportunity he saw to leave for an hour. He did not explain why he failed to attend a church service.⁷ Captain Toothaker then listed the three reasons for which he found Caruso's participation in the morning session unsatisfactory and asked him whether there were any facts he should be aware of before deciding whether to deny credit for the morning session. Caruso made no attempt to refute⁸ these charges; he offered no excuse for being late or for attending to his insurance business during the MOS class.

Under the circumstances, it is impossible to conclude that Captain Toothaker failed to make the requisite determination⁹. Plaintiff argues that AR 135-91(12) (e) (2) obligated Captain Toothaker to make a determination whether "any cogent or emergency reasons existed" for his third and fourth absences, as well as for the critical fifth absence. Even if AR 135-91(12) (e) (2) were capable of the construction plaintiff urges, plaintiff was not harmed by Captain Toothaker's alleged failure to make such a determination. That there were no "cogent or emergency reasons"¹⁰ for Private Caruso's absences on May 15 is plain from his own testimony that he had scheduled a conference with an insurance client and elected to take the unexcused absences instead of breaking the appointment. Moreover, AR 135-91(12) (e) (2) requires no such determinations. The regulation provides:

"(e) * * * the unit commander will * * * (2) If the absence(s) charged will result in a total of five or more unexcused absences in a 1-year period, determine if any cogent or emergency reasons existed which prevented the member from attending."¹¹

(Emphasis supplied).

It would appear that the (12) (e) (2) inquiry is required where (a) a member accrues a single unexcused absence, which is his fifth absence in the one-year period, (b) a member accrues in one transaction more than one unexcused absence, the last of which is his fifth¹² or (c) a member accrues in one transaction more than one unexcused absence, the first of which is his fifth absence¹³. Under this construction, Caruso was entitled to no more than he received.

2. EQUIVALENT TRAINING. Plaintiff argues that his unit commander violated Army regulations governing equivalent training¹⁴ by denying him permission to make up his absences by "equivalent training" (ET). AR 135-91(9)¹⁵ makes it clear that the grant of equivalent training is discretionary with the unit commander. As noted above¹⁶, the scope of review in Federal Courts does not extend to the review of the exercise of valid discretion by military officials.

3. APPLICABILITY OF AR 135-91. Plaintiff argues that AR 135-91 is inapplicable where, as in the case of his fifth absence, the reservist is physically present for the unit training assembly. This argument is without merit. Gianatasio v. Whyte, 426 F.2d 908 (2d Cir. 1970); Byrne v. Resor, 412 F.2d 774 (3d Cir. 1969). Any doubt concerning this point is dispelled by AR 135-91, itself; AR 135-91(5) (d) (2) provides:

"A member present at a scheduled unit training assembly will not receive credit for attendance thereat 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. When a member attends a unit training assembly and does not receive credit therefor,

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