Fox v. Brown
| Decision Date | 21 October 1968 |
| Docket Number | Docket 32584.,No. 109,109 |
| Citation | 402 F.2d 837 |
| Parties | Thomas F. FOX, Petitioner-Appellant, v. Harold BROWN, Secretary of the United States Air Force, and A. C. O'Hara, Major General NYARNG, Chief of Staff to the Governor of New York, Respondents-Appellees. |
| Court | U.S. Court of Appeals — Second Circuit |
Moses M. Falk, New York City, for petitioner-appellant.
Patricia M. Hynes, Asst. U. S. Atty., Southern District of New York (Robert M. Morgenthau, U. S. Atty., and Alan G. Blumberg, Asst. U. S. Atty., on the brief), for respondent-appellee Brown.
Philip Weinberg, Associate Atty., State of New York, New York City (Louis J. Lefkowitz, Atty. Gen. of New York and Philip Kahaner, Asst. Atty. Gen., on the brief), for respondent-appellee O'Hara.
Before LUMBARD, Chief Judge, and SMITH and ANDERSON, Circuit Judges.
Certiorari Denied March 24, 1969. See 89 S.Ct. 1219.
This is an appeal from two judgments of the District Court for the Southern District of New York, Milton Pollack, Judge, denying on argument, and again on reargument, 286 F.Supp. 855 (S.D. N.Y.1968), the application of petitioner Fox to annul an order directing him to report for active duty with the United States Air Force and discharging him from the Air National Guard due to unsatisfactory participation in his reserve unit. The issues on appeal are the validity of the military orders, and the jurisdiction of the District Court over the claim.
On August 7, 1962 appellant Fox voluntarily enlisted in the New York State Air National Guard and the Air National Guard of the United States. His enlistment record specified:
Petitioner also signed a statement of participation in the Air National Guard which reads:
3. I understand that upon failure to accomplish any of the above basic training, followed by yearly requirement of 48 drills and 15 days field training, my name will be sent through channels to the appropriate agencies for their action in determining how much service I will be required to perform by recall to active duty.
Fox served 131 days active duty (basic training) in 1962. Thereafter Fox was in 1965 repeatedly absent from required drills without excuse. At the time of Fox's enlistment there were two statutes providing for the call-up of members of the Air National Guard who fail to participate satisfactorily in a reserve unit.1 Because of the unexcused absences in 1965, Fox was ordered to 45 days' active duty pursuant to 10 U.S.C. § 270(c).
In 1966 Congress passed Public Law 89-687, 80 Stat. 980, which was codified in 1967, 10 U.S.C. § 673a, and is the authority for the order which is at issue in the present case.2
Fox's unexcused absences from drills continued following the 1965 order to 45 days' active duty. In the fiscal year 1966-67, Fox had 19 unexcused absences and 12 excused absences. On October 18, 1967, Fox was alerted that he had been recommended for active duty pursuant to Public Law 89-687 as a result of his unsatisfactory participation in drills. The minimum standard for satisfactory participation in the Air Force Reserves (Manual 35-3, Ch. 41) and Air National Guard (Reg. 39-10) is 90% attendance in required drills.
Fox requested a hearing to rebut the allegation that he had failed to attend 90% of the required drills, on the grounds of a conspiracy against him, a denial of appropriate duty, and failure to punish other reservists with similar records; Fox also alleged financial hardship (sole support of his father), and change of physical condition (injuries to his left knee and hand). At the hearings before Morton Zucker, Staff Judge Advocate of the Air National Guard, in December 1967 and January 1968, Fox was represented by civilian and military counsel. The Staff Judge Advocate dismissed Fox's allegations as unsupported by evidence, and recommended that Fox be ordered to active duty pursuant to 10 U.S.C. § 673a and Executive Order 11366.
On May 29, 1968 the Office of the Commander of the Air Reserve Personnel Center issued an order directing that Fox be involuntarily activated for a period of 18 months 5 days, pursuant to 10 U.S.C. § 673a, effective June 25, 1968, and that Fox report to Cannon Air Force Base in New Mexico on July 1, 1968. Plaintiff Fox alleged that he did not receive the order until June 7, 1968.
At the time the order was issued Fox had served 176 days on active duty (including the 45 days in 1965); this was deducted from the statutory 24 months, leaving 18 months and five days. Fox's annual two weeks field training, amounting to ten weeks over the five-year period since 1962, was apparently not considered to be "service on active duty" within the meaning of 10 U.S.C. § 673a (b), supra.
Also applicable to the May 29 order is 10 U.S.C. § 672(e).3
Fox commenced this action by an application for an order to show cause, dated June 24, 1968, demanding that the order of May 29 extending his active duty be annulled. Judge Pollack denied the application, ruling that reasonable notice had been allowed, that any claim that Fox was activated for an excessive period should be raised while on active duty, Fox's complained of wrongs are redressable within the military and not the court (citing 10 U.S.C. § 939), and that petitioner had failed to state facts sufficient to invoke the court's jurisdiction.
Fox did not report for active duty as directed. On July 2, 1968, he moved for reargument, allegedly to bring to the court's attention an unreported case in the Central District of California, Gion v. McNamara. By opinion and order of July 11, 1968, Judge Pollack granted reargument and adhered to his original decision.
On July 31, 1968 Fox applied to this court for a stay of all proceedings pending appeal. Appellee Harold Brown, Secretary of the Air Force of the United States, moved to dismiss for lack of jurisdiction. Judge Hays granted a stay, and argument was adjourned to September 10, 1968. We terminated the stay at the time of argument, and affirm the judgment of the District Court.
We agree with Judge Pollack that Fox has stated no justiciable claim within the jurisdiction of the District Court, to the extent that he seeks review of acts of military discretion.4 The courts will not ordinarily assume to revise the orders of those lawfully in the service; Orloff v. Willoughby, 345 U.S. 83, 73 S.Ct. 534, 97 L.Ed. 842 (1953). This court has specifically ruled that an activation order under 10 U.S.C. § 673a for unsatisfactory performance in the reserves may only be reviewed to the extent of determining whether the military had acted within its jurisdiction under valid law; Winters v. United States, 281 F.Supp. 289 (E.D.N.Y.), aff'd 390 F.2d 879 (2d Cir. 1968). The habeas corpus cases cited by petitioner are not persuasive since they involve exercises of administrative discretion which had a chilling effect on First Amendment rights, not present here. Moreover, where the status of persons within the armed forces has been at issue, rather than the classification of civilians by a local board, courts have followed the Orloff approach, supra; see Brown v. McNamara, 387 F.2d 150 (3d Cir. 1967); Noyd v. McNamara, 378 F.2d 538 (10th Cir. 1967), cert. denied 389 U.S. 1022, 88 S.Ct. 593, 19 L.Ed.2d 667 (1968).5 We hold that Winters, supra, controls.
On the merits also we agree with Judge Pollack's conclusions.
Fox contends that the May 29 order is invalid because he was not given credit for the active duty which he performed for two weeks each year, in computing the permissible extended active duty under 10 U.S.C. § 673a(b), n. 2 supra, which allows such extension "until his total service on active duty equals twenty-four (24) months." The Staff Judge Advocate took the position that Fox's summer camp training was not "active duty" within § 673a(a), and we agree, see 10 U.S.C. § 101(31). Moreover, even if the order failed to credit Fox with an additional 10 weeks, the District Court was correct in ruling that such a claim should be raised while he is on active duty pursuant to 10 U.S.C. § 673a.
A second contention of petitioner is that he was not given sufficient time to wind up his affairs before being required to enter upon active duty, as is required by 10 U.S.C. § 672(e), n. 3 supra. Petitioner argues that he was not "alerted" for duty until he received actual notice of the May 29 order to active duty on June 7. The District Court ruled that Fox was "alerted" when on October 18, 1967 he received the advance notification of orders to report for involuntary active duty, and we agree. Moreover, even assuming that Fox's contention is correct, the order to report for active duty would not thereby be invalid; the most that Fox could contend under this provision is that he was entitled to report on July 7, 1968.
Petitioner next contends that the order is invalid because the consent of the Governor, 10 U.S.C. § 672, or request of the Governor under 10 U.S.C. § 270(c) was not shown. This argument assumes that the above statutes are of general application; however 10 U.S.C. § 673a, the authority for the activation order involved in this case, is applicable by its terms "notwithstanding any other provision of law." In this connection, petitioner also claims that the orders are in derogation of the Tenth Amendment because they usurp from the state powers not delegated to the United States by the Constitution. This ignores the plenary power of Congress over the raising and maintenance of armed forces.
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