Harris v. Kaine, 71 Civ. 1704.

• Decision Date: 29 June 1972
• Docket Number: No. 71 Civ. 1704.,71 Civ. 1704.
• Citation: 352 F. Supp. 769
• Parties: Eric HARRIS, Plaintiff, v. Major General J. W. KAINE, Commanding General, 77th United States Army Reserve Command, et al., Defendants.
• Court: U.S. District Court — Southern District of New York

352 F. Supp. 769

Eric HARRIS, Plaintiff, v. Major General J. W. KAINE, Commanding General, 77th United States Army Reserve Command, et al., Defendants.

No. 71 Civ. 1704.

United States District Court, S. D. New York.

June 29, 1972.

James J. Foster, New York City, for plaintiff.

David Land, Asst. U. S. Atty., New York City, for defendants.

MEMORANDUM

TENNEY, District Judge.

This case is before the Court on plaintiff's motion for summary judgment, Fed.R.Civ.P. 56, and defendants' motion to dismiss the complaint for failure to state a claim upon which relief can be granted and for lack of subject matter jurisdiction. Fed.R.Civ.P. 12(b)(1) and (6).

As factual background, plaintiff, Eric Harris, is a man who within the spirit of the times has chosen to wear his hair long. He claims that he wears his hair in this fashion as a measure of his personal privacy and liberty, to facilitate the exercise of his right to freedom of association, to express certain political and cultural opinions and to protest certain mores, standards and conditions in today's society. While normally the length of plaintiff's hair would be a matter of personal choice and would present no particular problem, he has a dual role as a civilian and as a part-time soldier in the Army Reserves and the Army has taken objection to the length of plaintiff's hair. Specifically, plaintiff is a member in good standing of the 77th United States Army Reserve Command (ARCOM) who, outside of the days spent in summer camp, spends only approximately 2¼% of his time as a soldier. In his complaint, plaintiff alleges that pursuant to Army Regulation 600-20 (AR600-20), in or about December 1970, he was expelled from an Army Reserve drill solely for the reason that he wore a short-haired wig, and that as a result of that expulsion he was charged with not having satisfactorily participated in that drill and was denied his pay for the meeting. Plaintiff further alleges that if he is charged with five such failures to satisfactorily participate, he is subject to being ordered to active duty for a period in excess of 18 months pursuant to AR135-91, and that since he is now earning in excess of $18,000 per year, such induction would cost him more than $10,000. Plaintiff contends that AR600-20 is invalid and unenforceable by defendants in that the regulation is in excess of defendants' statutory authority and unnecessarily infringes upon plaintiff's constitutionally protected right to wear his hair in any manner he chooses. Jurisdiction is based upon 28 U.S.C. §§ 1331, 1346(a)(2), 1361 and 5 U.S.C. §§ 701-04.¹ Defendants are various officials of the U. S. Army and each has been sued in his official capacity.

Before turning to the motions, it is necessary to set out the statutory and regulatory framework underlying this action. Section 673a of Title 10 of the United States Code authorizes the President to order to active duty any member of the reserves who is not "participating satisfactorily" in his unit. Section 456 of Title 50 U.S.C. App. further provides that members of reserve units are exempt from induction as long as they are satisfactorily participating in their reserve units. Army Regulation 135-91, issued pursuant to the above authority provides that a member is not satisfactorily participating "unless he is in the prescribed uniform, presents a neat and soldierly appearance, and performs his assigned duties in a satisfactory manner as determined by the unit commander." AR 135-91(5) (d) (2). Failure to participate satisfactorily leads to loss of attendance credit and five unexcused absences subjects a member to possible induction to active duty. Finally, the challenged regulation, AR600-20, provides in part:

"31. Appearance and Conduct

a. Appearance

* * * * * *

(6) The wear of a wig or hair piece by male personnel, while in uniform or on duty, is forbidden except under the following circumstances:

a. For cosmetic reasons to cover natural baldness.

b. When appropriate to cover physical disfiguration caused by accident or medical procedure.

c. When wig or hair piece is worn as indicated above it will conform to the standard hair criteria as stated."

Defendants concede the regulation applies to reservists.

Defendants have moved to dismiss the complaint for failure to state a claim upon which relief can be granted, and for the purposes of this motion, all of the allegations in the complaint must be accepted as true. Defendants in support of their motion rely upon several decisions in this and other circuits which hold that what constitutes a neat and soldierly appearance is a matter within the discretion of the Army and that absent extraordinary circumstances, discretionary acts of the Army are not reviewable by the courts. Anderson v. Laird, 437 F.2d 912 (7th Cir. 1971); Gianatasio v. Whyte, 426 F.2d 908 (2d Cir. 1970), cert. denied, 400 U.S. 941, 91 S.Ct. 234, 27 L.Ed.2d 244 (1970); Bryne v. Resor, 412 F.2d 774 (3d Cir. 1969); Raderman v. Kaine, 411 F.2d 1102 (2d Cir.), cert. dismissed, 396 U.S. 976, 90 S.Ct. 467, 24 L.Ed.2d 447 (1969); Smith v. Resor, 406 F.2d 141 (2d Cir. 1969). Unlike these cases, however, plaintiff does not ask the Court to determine what constitutes a neat and soldierly appearance or to grant him an exception to the standard.² Rather, plaintiff contends that defendants have exceeded their statutory authority and unnecessarily infringed upon his constitutionally protected rights by prohibiting his wearing of a short-hair wig at drill meetings. Clearly, then the Court is faced with an alleged set of extraordinary circumstances to which the Court of Appeals has made reference. E. g., Raderman v. Kaine, supra, 411 F.2d at 1105; Smith v. Resor, supra, 406 F.2d at 145; Fox v. Brown, 402 F.2d 837, 840 (2d Cir. 1968), cert. denied, 394 U.S. 938, 89 S.Ct. 1219, 22 L.Ed.2d 471 (1969). Therefore, plaintiff does state a claim upon which relief can be granted and defendants' motion must be denied. See Friedman v. Froehlke, Civil No. 71-1905-G. (D.Mass., Jan. 31, 1972).

Defendants have also moved to dismiss the complaint for lack of subject matter jurisdiction. That there is jurisdiction in this Court over plaintiff's claims under 28 U.S.C. §§ 1331, 1346(a) (2), and 1361 and 5 U.S.C. § 701-04 is clear. Smith v. Resor, supra, 406 F.2d at 145, 147-148; United States ex rel. Schonbrun v. Commanding Officer, 403 F.2d 371, 374, 375 n. 2 (2d Cir. 1968), cert. denied, 394 U.S. 929, 89 S. Ct. 1195, 22 L.Ed.2d 460 (1969); Fox v. Brown, supra, 402 F.2d at 840; Cortright v. Resor, 325 F.Supp. 797, 808-812 (E.D.N.Y.), rev'd other grounds, 447 F.2d 245, 250-251 (2d Cir. 1971); Konn v. Laird, 323 F.Supp. 1 (E.D. Wisc.1971); Krill v. Bauer, 314 F.Supp. 965, 966 (E.D.Wisc.1970); Murray v. Vaughn, 300 F.Supp. 688 (D.R.I.1969); Fifth Avenue Peace Parade Comm. v. Hoover, 327 F.Supp. 238 (S.D.N.Y. 1971); Friedman v. Froehlke, supra; Susarchick v. Salcito, Civil No. 13,699 (D.Conn. April 14, 1970) (Exh. B. attached to Gov't memorandum dated May 21, 1971). See also Byse and Fiocca, Section 1361 of the Mandamus and Venue Act of 1962 and "Nonstatutory" Judicial Review of Federal Administrative Action, 81 Harv.L.Rev. 308 (1967). While this Court has no jurisdiction to review purely discretionary acts of the Army, it clearly has jurisdiction to determine whether the Army has stayed within its authorized discretion. Smith v. Resor, supra, 406 F.2d at 145, 147-148; Fox v. Brown, supra, 402 F.2d at 840.

Turning then to plaintiff's motion for summary judgment, defendants in their 9(g) statement³ claim that there is only one genuine issue of material fact to be tried, i. e., whether:

"Plaintiff was . . . expelled from an Army Reserve meeting in or about December 1970 for the sole reason that he wore a wig in violation of Army Regulation 600-20."

Defendants have then conceded the truth of the following facts which appeared in plaintiff's 9(g) statement and as to which plaintiff claims there is no genuine issue of fact:

"Plaintiff, when wearing a short-hair wig is able to present an appearance which would conform to the standard hair criteria stated in Army Regulation 600-20, except for that part of the Regulation which forbids the wearing of wigs.

"The wearing of a short-hair wig does not interfere with any of plaintiff's duties which he performs while in attendance at drills of his Reserve unit."⁴

Thus, defendants have, in effect, conceded that although plaintiff may fully comply with AR135-91 and is thus satisfactorily participating in drill meetings within the meaning of that regulation, he can and will be denied credit for his participation and will be subjected to possible induction to active duty if he wears a short-hair wig in violation of AR600-20 ¶ 31a(6), although the wig does not interfere with the performance of any of his duties and although he presents a neat and soldierly appearance.

The questions facing the Court then are, in light of these facts, whether defendants have exceeded their statutory authority in promulgating AR600-20 which proscribes plaintiff's wearing of a wig at Reserve meetings and whether the regulation unnecessarily infringes upon a constitutionally protected right of plaintiff. I think the answers to both questions must be in the affirmative.

It is clear and plaintiff concedes: that he can be ordered to active duty if he is not satisfactorily participating in his reserve meetings; that he is not satisfactorily participating unless he presents a neat and soldierly appearance; that whether he presents a neat and soldierly appearance is within defendants' discretion; and that this Court, absent extraordinary circumstances, cannot review matters within the Army's discretion. Orloff v. Willoughby, 345 U.S. 83, 73 S.Ct. 534, 97 L. Ed. 842 (1953); Gianatasio v. Whyte, supra; Raderman v. Kaine, supra; Smith v. Resor, supra. Plaintiff, however, has made the claim that since he does present a neat and soldierly appearance (and defendants...