Etheridge v. Schlesinger

• Decision Date: 18 July 1973
• Docket Number: Civ. A. No. 126-73-R.
• Citation: 362 F. Supp. 198
• Parties: Joseph ETHERIDGE, Jr., et al. v. James R. SCHLESINGER, Secretary of Defense, et al.
• Court: U.S. District Court — Eastern District of Virginia

362 F. Supp. 198

Joseph ETHERIDGE, Jr., et al. v. James R. SCHLESINGER, Secretary of Defense, et al.

Civ. A. No. 126-73-R.

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

July 18, 1973.

T. David Thelen, Richmond, Va., for plaintiffs.

David G. Lowe, Asst. U. S. Atty., Richmond, Va., for defendants.

MEMORANDUM

MERHIGE, District Judge.

Five active members of the Naval Reserves and Naval Air Reserves originally brought this action seeking an order enjoining the defendants from enforcing challenged Navy grooming regulations and from calling plaintiffs to active duty for alleged violations of said regulations.

On March 20, 1973 plaintiffs moved the Court, Judge Kellam presiding, to issue a temporary restraining order and said motion was denied. A motion for a preliminary injunction was also denied by Judge Kellam on March 27, 1973. Subsequent to these hearings plaintiff Etheridge was called to active duty for three weeks and so served. He is presently on reserve status again and may be called again to active duty for unsatisfactory performances at drill in one year. Plaintiff Holder was recalled to active duty for 20 months, but said orders have been held in abeyance pending this action. Plaintiff Jordon was called to active duty on April 11, 1973 and is now so engaged for a contemplated period of 20 months. Plaintiffs Pugh and Sherry remain on active reserve duty and, upon representation of counsel, have not experienced imminent threat of activation by virtue of difficulty with the grooming regulations because of the relaxed policy of their local commanding officers.

Defendants first challenge the jurisdiction of this Court. While the Court is satisfied that it does have jurisdiction, a close scrutiny of the problems raised thereby is merited.

The Court is first satisfied that contra to defendants' assertion, Jordon may maintain this action in its present form. While the general rule with respect to challenges to military induction of civilians is that said challenges may be maintained pursuant only to habeas corpus or by defense to criminal prosecution for refusal to submit to induction, see e. g. Feldman v. Local Board No. 22, 239 F.Supp. 102 (S.D.N.Y.1964), mandamus and federal question jurisdiction have been utilized by present members of the armed forces challenging changes in their status. See Bluth v. Laird, 435 F.2d 1065 (4th Cir. 1970), O'Mara v. Zebrowski, 447 F.2d 1085 (3rd Cir. 1971). The Court accordingly concludes that Jordon's activation does not impair his ability to maintain this action in its present form on the same basis as his co-plaintiffs who have not yet been activated. For the reasons that follow, the Court is satisfied as to proper jurisdictional bases for plaintiffs generally.

First, jurisdiction is attained by virtue of 28 U.S.C. § 1331. The defendants have challenged an alleged failure of plaintiffs to meet the $10,000 amount in controversy requirement by virtue of the rule of McGaw v. Farrow, 472 F.2d 952 (4th Cir. 1973). The plaintiffs initially urged, and the Court agrees for reasons that follow, that activation for 20 months¹ will cause them to suffer damages in excess of the $10,000 jurisdictional minimum. Defendants have denied this allegation upon information and belief, but neither side has presented specific evidence upon trial with respect to pecuniary loss.²

Under usual circumstances, before a case goes to trial, as a general rule the trial court must make an initial determination of whether the amount in controversy requirement is satisfied. Said determination is made upon the general rule that "the sum claimed by the plaintiff controls if the claim is apparently made in good faith. It must appear to a legal certainty that the claim is really for less than the jurisdictional amount to justify dismissal." St. Paul Mercury Indemnity Co. v. Red Cab Co., 303 U.S. 283, 58 S.Ct. 586, 82 L.Ed. 845 (1938). Upon the strength of this presumption, this matter went to trial.³ While it is not certain that the disparity in navy as opposed to civilian salaries alone meets the $10,000 requirement, the Court is satisfied upon the general evidence adduced that the disruption in plaintiffs' lives, the pain and suffering caused thereby and the limitations upon those heretofore civilian freedoms are injuries capable of being valued in excess of $10,000. See Garmon v. Warner, 358 F.Supp. 206 (W.D.N.C.1973), Friedman v. Froehlke, 470 F.2d 1351 n.1 (1st Cir. 1972).

The Court is also satisfied that jurisdiction may be maintained pursuant to the Administrative Procedure Act (APA), 5 U.S.C. §§ 702-704. The Court reaches this conclusion notwithstanding the view of some courts that jurisdiction under the APA is not self-executing. See e. g. Yahr v. Resor, 339 F.Supp. 964 (E.D.N.C.1972). Under this view, § 703 of the APA merely provides for judicial review of an agency decision once jurisdiction has been obtained by other means.⁴ See generally Charlton v. United States, 412 F.2d 390, 395 (3rd Cir. 1969).

Nevertheless, some courts have interpreted § 703 as a jurisdictional statute where jurisdiction is otherwise unattainable. See Garmon v. Warner, supra; Friedman v. Froehlke, supra, 470 F.2d 1351, 1352, n.1; See 81 Harv. L.Rev. 308, 326-331 (1967). The Court finds this latter view persuasive and, notwithstanding its conclusion with regard to other jurisdictional bases, finds the APA sufficient.

The Court is cognizant of the general rule that requires exhaustion of military remedies prior to maintenance of a suit under the APA. See Beard v. Stahr, 370 U.S. 41, 82 S.Ct. 1105, 8 L. Ed.2d 321 (1962), Anderson v. MacKenzie, 306 F.2d 248 (9th Cir. 1962). Plaintiffs unsuccessfully filed Article 138 grievances. The Court notes further that Jordon, prior to activation, unsuccessfully sought review of the challenged policy with the Commander of the Naval Air Reserve (PX1). It appears that further exhaustion upon the issue presented here by the other plaintiffs would be futile. See Garmon v. Warner, supra. The Court is thus satisfied that exhaustion has been made.

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 4th Circuit in Burnette 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 plaintiffs base their claim upon an asserted constitutional right and denial thereof by defendants. As Judge McMillen stated in a similar context in Garmon, supra, "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 plaintiffs which the defendants threaten to disregard." The Court of Appeals also stated, in Burnette, 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.⁵

The issue presented by this matter is not complex. Briefly, naval regulations as interpreted prohibit the wearing of all wigs. However, it is the policy of the Navy to allow personnel to wear wigs to cover natural baldness or for cosmetic reasons, but said policy prohibits the wearing of "short hair" wigs by those men who wish to conceal long hair which is otherwise not in compliance with uniform standards. Plaintiffs, who at the time of this suit wore their hair longer than permitted by said standards (hereafter characterized as "long hair"), challenge the short hair wig policy as being violative of their rights under the First, Fourth, Fifth, Ninth and Fourteenth Amendments. Discussion, infra.

I Findings of Fact

Navy General Regulations, Section 1, "Appearance", provides:

"0111. Grooming

1. Men

(a) Hair will be neat, clean, trimmed and present a groomed appearance. Hair will not touch the collar except for the closely cut hair at the back of the neck and that will present a tapered appearance. Hair in front will be groomed so that it does not fall below the eyebrows when a person is uncovered and it will not bush below the band of properly worn headgear. In no case will the bulk or length of hair interfere with the proper wearing of any military headgear. The exact maximum length of the hair is no longer specified.

(b) If an individual chooses to wear sideburns, they will be neatly trimmed. Sideburns will not extend below the bottom of the earlobe, will be of even width (not flared) and will end with a clean-shaven horizontal line.

(c) If a beard or moustache is worn, it shall be well-groomed and neatly trimmed in order not to contribute to a ragged appearance. This policy authorizes and includes full and partial beards, van dykes and goatees.

These regulations apply as well to Navy Reserve Personnel, although female personnel are subject to somewhat different standards.

While the above recited grooming regulation does not specifically prohibit wigs, it has been given that effect by the Chief of Naval Operations, with the aforementioned exception. Thus, Command Memorandum, 2/29/72, from the Chief of Naval Personnel states in part:

b. The Chief of Naval Operations desires to permit standards of grooming as close as possible to current civilian styles. At the same time, he expects a commanding officer to ensure the neat, clean military appearance of his personnel. It is considered that Navy grooming policies as now written accommodate both. Therefore, when in uniform or when wearing civilian clothes on military reservations, wigs or hairpieces will not be worn except for cosmetic reasons to cover natural baldness or physical disfiguration.

Plaintiffs who wear long hair challenge this...