Garmon v. Warner, C-C-73-1.

• Decision Date: 30 May 1973
• Docket Number: No. C-C-73-1.,C-C-73-1.
• Citation: 358 F. Supp. 206
• Court: U.S. District Court — Western District of North Carolina
• Parties: Harold GARMON, Jr., et al., Plaintiffs, v. John WARNER, Secretary of the United States Navy, and the following officers of the United States Marine Corps Reserve Maintenance Battalion, Charlotte, North Carolina, et al., Defendants.

358 F. Supp. 206

Harold GARMON, Jr., et al., Plaintiffs, v. John WARNER, Secretary of the United States Navy, and the following officers of the United States Marine Corps Reserve Maintenance Battalion, Charlotte, North Carolina, et al., Defendants.

No. C-C-73-1.

United States District Court, W. D. North Carolina, Charlotte Division.

March 20, 1973.

On Request For Stay March 22, 1973.

Supplemental Opinion March 28, 1973.

On Motion For Contempt Citation May 30, 1973.

George S. Daly, Jr., Casey & Daly, P. A., Charlotte, N. C., for plaintiffs.

Keith S. Snyder, U. S. Atty., Asheville, N. C., Hugh J. Beard, Jr., Asst. U. S. Atty., Charlotte, N. C., and Allan A. Ryan, Jr., Captain, United States Marine Corps Reserve, for defendants.

MEMORANDUM OF DECISION AND ORDER

McMILLAN, District Judge.

I.

Plaintiffs, five members of the United States Marine Corps Reserve Maintenance Battalion, of Charlotte, North Carolina, filed this action on January 2, 1973, seeking relief from actions of the defendants which would subject them to immediate induction into full time military service if they continue to wear wigs to cover their long hair at weekend Marine Reserve drills. An evidentiary hearing was conducted on January 30 and 31, 1973, upon the motion for equitable relief; testimony from both sides was taken and the case is ready for decision on the merits.

Plaintiffs joined the Marine Reserves during the late 1960's. They work at the Charlotte Maintenance Battalion headquarters where their duties are essentially the maintenance and repair of vehicles and other military equipment. They meet one weekend each month for two drills on Saturday and two drills on Sunday. In addition there is a summer camp exercise of about two weeks. The time occupied by the weekend drills is about two percent of the amount of time in a year, and if the summer camp is added to this the Marines claim about five percent of the time of each plaintiff during the course of the entire year.

During the summer and fall of 1972, the plaintiffs' hair was longer than the three-inch length and style prescribed in the Marine Corps hair regulations, and each plaintiff started wearing a short-haired wig to the weekend drills. For several months this was not noticed by the authorities of the Marine unit. The wigs stayed in place, were neat and orderly, and as far as appearance is concerned were not out of keeping with the requirements of the regulations. Neither did the wigs interfere in any manner with the performance of the duties of the plaintiffs at the weekend drills.

At the December, 1972, drill, plaintiffs were advised by various defendants that wigs would no longer be allowed and that if plaintiffs came to a weekend drill wearing wigs they would be marked AWOL or given an unsatisfactory rating for all the four drills which take place on a weekend; this could make each of them subject to immediate induction into full time military duty for a period of about one and a half years.

II.

Plaintiffs are thus threatened with interruption or loss of their civilian ties and income; with disruption of or at least changes in their family and employment status; with measurable financial losses as to several plaintiffs of several thousand dollars each; and with the further emotional and psychological losses which deprivation of liberty for about a year and a half would entail. It may well be that the net dollars and cents loss of income that would ensue from a year or two of forced full time military duty would not necessarily exceed $10,000 in the case of any of the plaintiffs. Nevertheless, damages under the law of this state, e. g., Matthews v. Forrest, 235 N.C. 281, 69 S.E.2d 553 (1952), for infringement of personal rights includes pain of mind as well as of body; and although, as someone has suggested, man "does not live by freedom alone," those who deprive other men of it can hardly be heard to say that loss of freedom for such protracted periods of time can not have a value exceeding $10,000. The court is of the opinion that although defendants have not done things which entitle plaintiffs at present to recover $10,000 each, they have made it clear that they intend to do things which may very well if permitted cause losses to the various plaintiffs exceeding $10,000 in special and other damages. Reasonably construed, the evidence supports a finding that any one of the several plaintiffs who testified does have more than $10,000 in controversy, and that this court has jurisdiction under 28 U.S.C. § 1331.

Among the alternative bases of jurisdiction offered by the plaintiffs is 5 U.S.C. § 703, a section of the Administrative Procedure Act providing for court review of "final" administrative decisions. Although the defendants argue that the statute permits judicial review only when jurisdiction is separately established, Yahr v. Resor, 339 F.Supp. 964 (E.D.N.C.1972), such a distinction seems unpersuasive. Congress should not be deemed to have intended, in granting review of federal administrative decisions, to leave another "unfortunate gap in the statutory jurisdiction in our federal courts." When permission to seek review was granted by Congress, it must have been done with the intent that all federal administrative decisions subject to review be subject to review in the federal courts. 5 U.S.C. § 703 is a jurisdictional statute to the limited extent of conferring jurisdictional for review of administrative decisions in the federal courts where such review cannot be predicated on other jurisdictional statutes. Other courts have used 5 U.S. C. § 703 as a jurisdictional statute. Rice v. United States, 348 F.Supp. 254 (D.N.D.1972); Friedman v. Froehlke, 470 F.2d 1351, 1352, n. 1 (1st Cir. 1972). Exhaustion of administrative remedies would be futile and will not be required because General Lanagan, the Commandant of the Marine Corps Reserve, testified in the hearing that no change would voluntarily be made in the decision denying reservists the right to wear wigs to drill.

Also, the suit may fairly be taken as a request for mandamus under 28 U.S.C. § 1361. 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 the plaintiffs which the defendants threaten to disregard. This is a matter of right, not a matter of discretion; the facts are simple and clear and if the right exists, as I believe it does, there is jurisdiction under the mandamus provisions of 28 U.S.C. § 1361. See Burnette v. Tolson, 474 F.2d 877 (4th Cir., 1973).

Plaintiffs' contentions of jurisdiction under § 1346(a)(2) and § 2201 are not rejected but are not believed necessary to decide, in view of the jurisdiction which adequately exists under § 1331 and the other statutes above discussed.

III.

Civilian control over the military—a necessity for the survival of human liberty—is rooted in the Constitution. Under Article 2 of the Constitution, the President is the "Commander in Chief of the Army and Navy of the United States." Under Article 1, § 8, it is Congress which has the powers "to raise and support armies * * * to provide and maintain a navy * * * and to make Rules for the Government and Regulation of the land and naval Forces." Title 10, U.S.C., § 6011 and § 6012, provide:

"§ 6011. Navy Regulations

"United States Navy Regulations shall be issued by the Secretary of the Navy with the approval of the President.

"§ 6012. Additional regulations for Marine Corps

"The President may prescribe military regulations for the discipline of the Marine Corps."

Navy regulations approved by the President, if constitutional, have the force of law. Cafeteria Workers Local 473 v. McElroy, 367 U.S. 886, 891, 81 S. Ct. 1743, 6 L.Ed.2d 1230 (1961).

The record does not reveal presidential approval, but it does show promulgation by the Commandant of the Marine Corps of Marine Corps Order 1020.34, which reads in pertinent part as follows:

"a. The face shall be kept clean shaven, except a noneccentric mustache is permissible.

"b. Hair shall be worn neatly and closely trimmed. It shall be clipped at the sides and back so as to present an evenly graduated appearance. The hair on top must not be over 3 inches in length. Long or conspicuous sideburns are prohibited."

There is no mention of wigs in the regulation, and no definition of "hair" as meaning natural home-grown hair, as opposed to natural "store-bought" hair.

The "no wig" fiat is therefore not articulated in any approved military regulation, but depends upon a lately created and rigidly maintained, though not written nor codified, policy.

It is fair to observe at the outset, therefore, that despite a long history of short-hair rules dating back to 1840, the Marines do not appear to have an antiwig regulation that has been adopted and approved in the fashion that the meager pertinent statutes contemplate.

If we pass that problem and deal directly with the substance of the no-wig rule, we reach the question whether the absolute "no wig" prohibition, applied to part-time reservists like plaintiffs, serves any legitimate purpose of the military, and therefore whether it justifies intrusion into the civilian lives of the reservists.

One contention of the defendants was that wigs would interfere with military operations; that they might get caught in machinery; that they might endanger the operation of climbing down landing nets and otherwise prevent adequate performance of military duties. The theory advanced is that Marine units are subject to being called on no notice or a few hours' notice to fly away to distant places for immediate assault or combat military duty and that all Marines, reservists or otherwise, must be properly shorn in anticipation of such a call. There is no evidence that any plaintiff's wig has in fact interfered with any military duty. There is no evidence that the local unit or any Marine reserve...