Dix v. Rollins

• Decision Date: 29 July 1969
• Docket Number: No. 19724.,19724.
• Citation: 413 F.2d 711
• Parties: James E. DIX, Appellant, v. A. P. ROLLINS, Jr., Maj. Gen., U. S. A., et al., Appellees.
• Court: U.S. Court of Appeals — Eighth Circuit

413 F.2d 711 (1969)

James E. DIX, Appellant, v. A. P. ROLLINS, Jr., Maj. Gen., U. S. A., et al., Appellees.

No. 19724.

United States Court of Appeals Eighth Circuit.

July 29, 1969.

Tom Mendelson, St. Louis, Mo., for appellant.

Vernon A. Poschel, Asst. U. S. Atty., Kansas City, Mo., for appellees, Calvin K. Hamilton, U. S. Atty., on the brief.

Before VAN OOSTERHOUT, Chief Judge and MEHAFFY and GIBSON, Circuit Judges.

VAN OOSTERHOUT, Chief Judge.

This is a timely appeal from the final order of the District Court dismissing upon the Government's motion the petition of James E. Dix for a writ of habeas corpus directing his release from active army service. Jurisdiction of the trial court was invoked under 28 U.S.C. A. § 2241. Upon motion of Dix, hearing upon this appeal has been expedited.

The pertinent facts have all been stipulated. No dispute as to material facts exists.

In September 1965 Dix enlisted in the United States Army Reserve in the 102nd (Ozark) Division and completed his active duty for training in February 1966. Such enlistment insulated him from being subject to draft. His reserve unit was inactivated by the Department of the Army in January 1966 and petitioner was assigned to the Ready Reserve Mobilization Reinforcement Pool.

On October 15, 1966, Congress passed Public Law 89-687, later codified as 10 U.S.C. § 673a,¹ which authorized the President to order to active duty any member of the Ready Reserve who was "not assigned to or participating satisfactorily in" a Ready Reserve Unit, had not fulfilled his statutory reserve obligation and had not served 24 months active duty.

The President delegated his authority to the Secretary of Defense by Executive Orders No. 11327 and 11366.

The Secretary of Defense issued Department of Defense Directive 1215.13 (which later became Part 100 of 32 CFR) which was published at 32 FR 3829.

On March 12, 1967, the Department of the Army sent letters to all members of the Mobilization Pool setting forth the policies of the regulation. The letter bore the heading "Subject: New Policy Governing Satisfactory Participation in Reserve Components Units." The letter stated that those who believed they were eligible for retention in the pool due to inactivation of their unit or for other reasons should provide the Army with information for purposes of verifying such eligibility. The letter advised the recipient that he will be vulnerable for involuntary order to active duty on or after July 1, 1967, if he had not: "c. Established your eligibility for retention in the Ready Reserve Pool."

Dix provided information that his unit had been deactivated and he then received a reply reading: "Since you are unable to participate in a troop program unit by reason of action taken by the Government, such as relocation, reorganization, or inactivation of a unit, you will be retained in the Ready Reserve Pool. You are not subject to call to Active Duty under the provisions of Public Law 89-687."

Dix had been looking around for a reserve unit connection but abandoned such efforts after receiving the letter.

Subsequent to this and prior to March 30, 1968, the only changes in the law, regulations or directives affecting reserves were the codification of Public Law 89-687, the issuance of a new delegation of authority to the Secretary of Defense by Executive Order No. 11366, the publication of the regulation referred to above in 32 CFR Part 100 and the issuance of an additional regulation, 32 CFR Part 127, which stated in part that "Uniform policies for the implementation of this authority by the Secretaries of the Military Departments are prescribed by Part 100 of this subchapter."

On March 30, 1968, the deputy Secretary of Defense, pursuant to authority vested in him, issued a "Memorandum for Secretaries of the Military Departments." This memorandum first noted that under the unsatisfactory performance element of 10 U.S.C. § 673a, the directive published at 32 CFR Part 100 had provided that members assigned to the pool by unit deactivation would be retained in the pool. The memorandum then authorized the Military Departments to implement "that element of § 673a, Title 10, U.S.C., concerning an individual `not assigned to a unit' irrespective of the reasons he is not affiliated with a unit." The memorandum included the following statement: "This authority may be exercised by the Military Departments concerned only during any future partial or general mobilization of the Reserves."

This memorandum was never published in the Federal Register and there is no evidence in the record that the petitioner had actual notice of it prior to his call to active duty. On May 15, 1968, petitioner was sent notice of call to active duty pursuant to the authority contained in 10 U.S.C. § 673a.

The notice made reference to the prior notification of exemption from active duty because of the inactivation of his unit and then stated: "This exemption, however, did not affect your liability for active duty under mobilization conditions."

Petitioner pursuant to such order reported for active duty and subsequently commenced this action. Dix in the trial court and here states the primary issue upon which he relies for reversal as follows:

"Petitioner\'s involuntary order to active duty from the Ready Reserve Pool under Public Law 89-687, 10 U. S.C. § 673a and Executive Order 11366 was in direct violation of the Department of Defense regulation contained in 32 C.F.R. Part 100 and thereby unlawful in view of petitioner\'s status as a former member of a reserve unit inactivated by the government. The position of the government that the regulation was changed prior to petitioner\'s said order cannot be maintained because there was a failure of compliance with the method prescribed by Congress in the Administrative Procedure Act."

It is undisputed that the provision of the memorandum of March 30, 1968, heretofore referred to, making all Ready Reservists, subject to certain exceptions not here material, subject to involuntary call to duty irrespective of the reason that they were not assigned to a unit, was not promulgated in the manner required of regulations by the Administrative Procedure Act, in that it was not published in the Federal Register as required by 5 U.S.C.A. § 552(a). It is likewise established that Dix had no notice of the memorandum prior to his call to active duty.

It is the Government's position that 32 CFR Part 100 does not establish a policy for calling to active duty reservists not assigned to a unit because the unit had been deactivated, but that it only sets out a policy for call to active duty with respect to members of the Ready Reserve not participating satisfactorily. The trial court agreed with the Government's contention, stating: "The President always had the authority to order those men not assigned to a unit to active duty. But the persons to whom he delegated this authority choose not to use it in the case of Pool members, as is apparent from DoD Directive 1215.13, 32 CFR Part 100 which implemented only the unsatisfactory performance element of the statute."

We believe such to be a proper construction of 32 CFR Part 100. The title assigned to such directive is "Involuntary Order to Active Duty of Ready Reservists for Unsatisfactory Performance of Obligation." Section 100.1, "Purpose", states, "This part prescribes uniform policy for compliance measures * * * against those members of the reserve components without prior military service who enlist or have enlisted directly into units of the Ready Reserve but do not participate satisfactorily."

Section 103, "Policy", states that persons enlisted in the Reserve are expected to participate satisfactorily in units of the Reserve for the full period of their Ready Reserve obligation "unless excepted in accordance with subparagraph 2 of this paragraph" and further provides that those who do not satisfactorily participate will be ordered to active duty. Subparagraph 2 under "Exceptions to this Policy" includes individuals unable to participate in a unit by reason of action taken by the Military Service (e.g., unit inactivation) rather than because of their own actions, who will be retained in the Ready Reserve Pool.

We believe the subsection 2 exceptions just quoted clearly indicate that the satisfactory...