Garman v. United States Postal Service

• Decision Date: 16 March 1981
• Docket Number: No. S 81-67.,S 81-67.
• Citation: 509 F. Supp. 507
• Parties: Robert J. GARMAN, Plaintiff, v. UNITED STATES POSTAL SERVICE, William Bolger, Postmaster General, John E. Lawecki, Postmaster, South Bend, Indiana, Defendants.
• Court: U.S. District Court — Northern District of Indiana

509 F. Supp. 507

Robert J. GARMAN, Plaintiff, v. UNITED STATES POSTAL SERVICE, William Bolger, Postmaster General, John E. Lawecki, Postmaster, South Bend, Indiana, Defendants.

No. S 81-67.

United States District Court, N. D. Indiana, South Bend Division.

March 16, 1981.

Charles S. Leone, South Bend, Ind., for plaintiff.

David T. Ready, U. S. Atty., South Bend, Ind., for defendants.

MEMORANDUM AND ORDER

I.

ALLEN SHARP, District Judge.

Pursuant to Section 3 of the Military Service Act, 50 U.S.C. App. Section 453, President Carter issued Proclamation 4771 requiring registration of males born in 1960 and 1961 with the Selective Service System. 45 Fed.Reg. 45247 (July 3, 1980). By the terms of the Proclamation, the registration program began on July 21, 1980 at post offices throughout the nation.

The United States Postal Service ("Postal Service") is authorized to furnish non-postal services to agencies of the United States Government. 39 U.S.C. Section 411. In the past, these services have included the sale of food stamps, the conduct of surveys and, currently, the sale of gold medallions.

Pursuant to this statutory authority, the Postal Service and Selective Service System have entered into an agreement whereby Postal Service personnel at post offices around the country perform various ministerial tasks connected with the Selective Service registration. These tasks involve the distribution of registration forms and informational brochures, review of completed forms for legibility and accuracy and forwarding the completed forms to a data processing center designated by the Selective Service System. These duties do not include, however, giving advice or rendering a decision about the registration process, classification systems, exemptions or other substantive matters. These duties have been performed since the commencement of the registration program and continue to be performed by window clerks.

The named plaintiff in this action is a distribution and window clerk at the South Bend, Indiana Post Office. On or about the week of July 14, 1980, plaintiff and all other window clerks were given orders to perform the necessary ministerial duties connected with the Selective Service registration. Plaintiff asserts in his Complaint (Paragraph 11) that he holds certain beliefs and practices which require that he not participate in the Selective Service registration system currently being conducted through the United States Postal Service. Pursuant to Article XV of a collective bargaining agreement between the Postal Service and its unions ("National Agreement"), plaintiff has filed a grievance over the issue, and plaintiff's union, the American Postal Workers Union, has appealed past the second level of the grievance procedure. The appeal is currently pending. Plaintiff also claims in Paragraph 13 of his Complaint that on July 25, 1980 he filed an "equal employment opportunity complaint" and thus "has made known his religious beliefs and practices to the United States Postal Service in South Bend, Indiana." The Court may take notice of the fact that, pursuant to the bid procedure of the National Agreement, plaintiff bid on a manual distribution clerk job, a job that would take him out of his present window clerk duties. Thereafter, on or about February 25, 1981, plaintiff was awarded said manual distribution clerk job. However, plaintiff is required to pass a "scheme examination" with respect to his new job which requires study by plaintiff. Plaintiff has been given ninety (90) days from February 25, 1981 in which to qualify on the "scheme." How long it takes plaintiff to pass depends on how fast plaintiff can learn the scheme. The scheme requirement is required of all employees similarly situated. In the interim, plaintiff remains at his present assignment until he passes said "scheme" exam.

Plaintiff seeks to enjoin the Postal Service from discharging, suspending or otherwise disciplining the plaintiff for his words or actions in opposition to registering individuals from military conscription; threatening him in any way with discipline or loss of job for refusing to participate in the military conscription registration process; taking any retaliatory measures or other adverse actions affecting his employment status as a result of the religious beliefs or practices of the plaintiff; and further asks that the Postal Service provide reasonable accommodation to the plaintiff because of his religious beliefs and practices. Plaintiff also brings this action pursuant to the First Amendment of the Constitution.

II.

In his Memorandum in Support of his request for injunctive relief, plaintiff cites and attaches the unpublished opinion in McGinnis v. U. S. Postal Service, No. C-80-3472 (N.D.Cal., December 16, 1980) as supportive of his position. This Court has reviewed the carefully drawn 18 page opinion of Judge Thelton E. Henderson. Notwithstanding the excellence of its presentation this Court must respectfully disagree with the result there announced. However, there are two other Postal Service District Court decisions which hold contra to McGinnis, supra. First, a similar claim as that asserted by the plaintiff in this action was raised in a suit brought in the Southern District of New York prior to the commencement of the registration program by two Postal Service employees. Rogg, et al. v. U. S. Postal Service and American Postal Workers Union, 80 Civ. 80 (RO). In an unpublished memorandum decision and judgment dismissing the complaint, United States District Judge Richard Owen rejected such claims, finding that no religious or constitutional right was infringed by requiring employees to perform "the ministerial act" of processing registration documents, notwithstanding the fact that one named plaintiff, a Jehovah's witness, stated a religious basis for his objection.

In addition, similar allegations of constitutional and religious infirmities were dismissed by District Judge Mark Costantino in Rosenthal, et al. v. U. S. Postal Service, Civ. 80-3013 (D.C.E.D.N.Y. December 3, 1980). In addressing the issue of the plaintiff's First Amendment rights, Judge Costantino said:

To label this processing procedure `speech' would mandate that every post office function, like mail delivery, be subject to similar appellation once an employee refuses to perform some administrative task for political, philosophical or moral reasons. Such reasoning will not be countenanced by this court since this logic attempts to reach conduct which is clearly not within First Amendment protection. (Page 3 of Exhibit B).

He concluded:

Notwithstanding the analysis above, the motion must be denied since the requirement of Selective Service registration is not a denial of one's freedom of religion, United States v. Reiss, 478 F.2d 338 (2nd Cir. 1973); United States v. Bertram, 477 F.2d 1329 (10th Cir. 1973), and thus the mere processing of the draft registration forms necessarily does not impinge upon First Amendment rights. See Rogg v. United States Postal Service, 80 Civ. 80 (S.D.N.Y. July 18, 1980) (Owen, D. J.). The motion therefore is denied and the stay on Rosenthal's suspension is removed. (Page 4 of Exhibit B).

A requirement that all eligible persons register for the draft infringes on the rights of those who oppose military service based on religious or other convictions have been uniformly rejected for the past several decades. Richter v. United States, 181 F.2d 591, 593 (9th Cir. 1950), cert. den., 340 U.S. 892, 71 S.Ct. 199, 95 L.Ed. 647 (1950). The courts have squarely held that "the requirement (of Selective Service registration) does not infringe or curtail religious freedom since registering is not religious interference (citing cases)." United States v. Bertram, 477 F.2d 1329, 1330 (10th Cir. 1973). See also, United States v. Baechler, 509 F.2d 13, 15 (4th Cir. 1974, cert. den., 421 U.S. 993, 95 S.Ct. 2000, 44 L.Ed.2d 483; United States v. Bigman, 429 F.2d 13 (9th Cir. 1970); United States v. Crocker, 308 F.Supp. 998 (D.C.Minn.1970), aff'd, 435 F.2d 601 (8th Cir. 1971).

It is pointed out that the reasoning in Bertram, supra, was also used by Judge Owen in Rogg, supra, wherein he held:

Since the act of registration is not an interference with the free exercise of one's religion, United States v. Bertram, 477 F.2d 1329 (10th Cir. 1973), a fortiori the ministerial act of furnishing, checking and receiving completed registration forms by plaintiffs cannot be an unconstitutional interference with plaintiffs' religious freedom.

It is clear that there is no constitutional or religious right which exempts an individual from registration. Plaintiff asserts, in essence, that since he was recognized by the Selective Service as a conscientious objector in 1970 and served two (2) years in alternate civilian service, he thus has a legitimate ground for his assertion that he should not register selective service registrants. However, it is respectfully submitted that plaintiff's statutory exemption applied only to his participation in the military and did not exempt him from registering with Selective Service.¹ Thus, plaintiff himself had to register with Selective Service.

In terms of any arguable "free speech" concerns, the ministerial tasks of distributing and processing registration forms has no speech component that would come within the First Amendment protection. As the Supreme Court speaking through Chief Justice Warren noted in connection with the act of burning a registration card, "We cannot accept the view that an apparently limitless variety of conduct can be labeled `speech' whenever the person engaging in the conduct intends thereby to express an idea." U. S. v. O'Brien, 391 U.S. 367, 376, 88 S.Ct. 1673, 1678, 20 L.Ed.2d 672 (1968). District Judge Costantino, in the Rosenthal case, supra, (quoted on page 509 herein) recognized the above in reaching his First Amendment findings.

The Postal Service's "condition" —...