Hoersch v. Froehlke

• Decision Date: 11 October 1974
• Docket Number: Civ. A. No. 72-1759.
• Parties: Raymond C. HOERSCH, Plaintiff, v. Honorable Robert F. FROEHLKE, Secretary of the Army, Defendant.
• Court: U.S. District Court — Eastern District of Pennsylvania

382 F. Supp. 1235

Raymond C. HOERSCH, Plaintiff, v. Honorable Robert F. FROEHLKE, Secretary of the Army, Defendant.

Civ. A. No. 72-1759.

United States District Court, E. D. Pennsylvania.

October 11, 1974.

Orlow & Orlow, by James J. Orlow, Philadelphia, Pa., for plaintiff.

Robert E. J. Curran, U. S. Atty., by Michael B. Hepps, Asst. U. S. Atty., Philadelphia, Pa., for defendant.

OPINION AND ORDER

HANNUM, District Judge.

This is a declaratory judgment action in which petitioner seeks to have orders to involuntary active duty in the United States Army Reserves declared null and void, and further requests this Court rule that he is a civilian, and no longer subject to military jurisdiction.

Jurisdiction of this Court is invoked pursuant to 28 U.S.C. § 1331,¹ and 28 U.S.C. § 2201.²

FACTS

On October 17, 1965, plaintiff, Raymond C. Hoersch, Jr., voluntarily enlisted in the United States Army National Guard of Pennsylvania.³ Upon completion of his basic training, plaintiff was placed in a unit of the Ready Reserve to fulfill the remainder of his military obligation. Because of unexcused absences⁴ from scheduled training with his Ready Reserve Unit, plaintiff was ordered to active duty. Following an unsuccessful military appeal, he brought this declaratory judgment action challenging the validity of his orders to active duty.

10 U.S.C. § 673a(a)⁵ confers authority on the President to order to active duty any member of the Ready Reserve⁶ of an armed force who is not "participating satisfactorily" in a unit of the Ready Reserve. By Executive Order No. 11366,⁷ the President delegated his authority to the Secretary of Defense, together with authority to delegate this power in turn to any of the secretaries of the military departments of the Department of Defense. Criteria for satisfactory participation are set out in Army Regulations 135-91(12),⁸ and 135-91(5)(d).⁹

Hoersch received his first unexcused absences for periods 1 and 2 on January 10, 1970, and periods 3 and 4 on January 11, 1970. On February 2, 1970, Hoersch was informed of these unexcused absences¹⁰ by certified mail from his unit commander.¹¹

On February 7, 1970, plaintiff presented himself for his scheduled unit assembly, and was informed that his appearance did not meet military standards; specifically, his uniform was neither cleaned nor pressed, his boots were dirty, and his hair was too long.¹² The unit commander gave Hoersch permission to leave the assembly, and he was informed further that, upon return with his appearance in conformity with military standards, he would be given credit for the morning period. Hoersch failed to return, in fact he was absent from periods 3 and 4 on February 8, 1970.

On February 25, 1970, plaintiff was informed by certified mail for which he properly receipted,¹³ that he had accrued a total of eight unexcused absences within a one year period. The letter again stated that five unexcused absences within a one year period would result in a request to the Adjutant General of Pennsylvania for orders to active duty.

March 3, 1970, orders were requested requiring Hoersch to enter active duty; and on April 20, 1970,¹⁴ Hoersch was notified of the pending orders to involuntary active duty because of his eight unexcused absences. On April 30, 1970, plaintiff received a registered letter informing him further of his right to submit a written appeal of his involuntary activation.¹⁵

Plaintiff appealed to the unit commander on May 16, 1970, and his reporting date was changed from June 19, 1970, to July 19, 1970, to allow time for proper consideration of the appeal.¹⁶

Forty copies of plaintiff's original orders and his amended orders, changing his reporting date, were sent to plaintiff through the United States mail, but were returned unclaimed. These facts are discussed more fully in the notice section.

On July 22, 1970, Hoersch received by registered mail his Discharge Certificate¹⁷ from the Pennsylvania Army National Guard, as well as a copy of his special orders.¹⁸ The special orders stated, inter alia, the reason for discharge, "Order to AD (Active Duty) as Army Reservist," and reflected the date upon which he was taken off the rolls of the Pennsylvania Army National Guard.

Plaintiff never reported for active duty.

Plaintiff's wife was informed by letter of July 29, 1970, that her husband was absent without leave (AWOL) from Fort Dix, New Jersey, since July 19, 1970. She was requested to advise her husband to report immediately to the nearest military installation.¹⁹

April 5, 1972, plaintiff returned to Military Control at Fort Dix, New Jersey, only to go AWOL the next day.²⁰

On May 10, 1974, in compliance with an Order of this Court, plaintiff surrendered to the United States Marshal, and was released on $500.00 bond pending a ruling on the merits of his cause of action.²¹

DISCUSSION

A. Constitutionality

Plaintiff's first argument is that membership in the National Guard cannot automatically make one a member of the Ready Reserve of the Army without violating the Constitution, specifically Article I, § 8, cls. 15, 16.²² Plaintiff views the National Guard as a state controlled unit and the only constitutionally valid power of the federal government over the National Guard is to activate entire units "to execute the Laws of the Union, suppress Insurrections and repel Invasions," and not to activate individuals.

The sole support cited by plaintiff for this position is lengthy dicta from an opinion of Justice Harlan in Maryland v. United States, 381 U.S. 41, 85 S.Ct. 1293, 14 L.Ed.2d 205 (1965) vacated on other grounds 382 U.S. 159, 86 S.Ct. 305, 15 L.Ed.2d 227 (1966). The Court held that for purposes of the Federal Tort Claims Act civilian employees as well as military employees of the National Guard are to be treated as employees of the state and not of the federal government. This is inapposite to the case at bar.

A presumption of constitutionality attaches to duly enacted legislation. United States v. Thompson, 147 U.S. App.D.C. 1, 452 F.2d 1333 (1971), cert. denied 405 U.S. 998, 92 S.Ct. 1251, 31 L. Ed.2d 467 (1972).²³ The burden of establishing the unconstitutionality of 10 U.S.C. 269(b) is upon the party attacking it, namely Hoersch. Metropolitan Casualty Insurance Co. v. Brownell, 294 U.S. 580, 55 S.Ct. 538, 79 L.Ed. 1070 (1935).²⁴ The burden facing Hoersch in his challenge to the statute in question is a heavy one. United States v. Turner, 337 F.Supp. 1045 (D.D.C.1972), aff'd 475 F.2d 419 (D.C.Cir.1973),²⁵ District of Columbia National Bank v. District of Columbia, 121 U.S.App.D.C. 196, 348 F.2d 808 (1965).²⁶ The Court concludes that plaintiff has not met this burden.

"The power of the President and his authorized representatives to call individual reservists and reserve units . . . has been uniformly and liberally construed." Dix v. Rollins, 413 F. 2d 711 (8th Cir. 1969). See also: Adams v. Clifford, 294 F.Supp. 1318 (D. Hawaii 1969); Schultz v. Clifford, 303 F.Supp. 965 (D.Minn.1969), aff'd 417 F.2d 775 (8th Cir. 1969), cert. denied 397 U.S. 1007, 90 S.Ct. 1234, 25 L.Ed.2d 420 (1969); Fox v. Brown, 286 F.Supp. 855 (SDNY 1969), aff'd 402 F.2d 837 (2d Cir. 1968), cert. denied 394 U.S. 938, 89 S.Ct. 1219, 22 L.Ed.2d 471 (1969); Winters v. United States, 281 F.Supp. 289 (EDNY 1968) aff'd 390 F.2d 879 (2d Cir. 1968); Morse v. Boswell, 289 F.Supp. 812, aff'd 401 F.2d 544 (4th Cir. 1968), cert. denied 393 U.S. 1052, 89 S.Ct. 687, 21 L.Ed.2d 694 (1969).²⁷

B. Notice

Plaintiff next argues he never actually received his orders to active duty, and therefore was not bound by them.

On May 6, 1970, plaintiff's attorney noted in a postscript to a letter sent to the unit commander of plaintiff's unit that plaintiff's address was changed, and gave the new address. However, plaintiff's orders to active duty were sent to his earlier address and were returned unclaimed.

Plaintiff does not complain that he never received his discharge certificate which was sent to a third address, neither the address noted in the letter from plaintiff's attorney, nor the earlier address to which the active duty orders were sent. Along with the discharge certificate sent to this third address and received by plaintiff, was a copy of plaintiff's special orders. The special orders indicate, inter alia, the reason for discharge, the effective date of discharge, as well as the term of plaintiff's military obligation. This, combined with the earlier correspondence in which plaintiff was apprised of the entire situation regarding his involuntary activation, his appeal of these orders, subsequent denial of the appeal, put the plaintiff on notice that orders to active duty existed.

Between March and July 1970, the record before this court indicates no less than five addresses for plaintiff. Plaintiff can not be allowed to pick and choose what mail he accepts and refuses at each address, and then claim no notice of mail he refused.

Army Regulations 310-1, subparagraph 14b provides:

"An order which is individual in its operation becomes effective only if the person concerned has actual or constructive knowledge of its existence." (emphasis supplied)

The regulation does not require constructive knowledge of the contents of the order, only its existence. Hoersch clearly had both constructive and actual knowledge of the existence of his orders to active duty.

The cases cited by plaintiff offer no support for his position that he received no notice of his activation. United States v. Dolan, 42 C.M.R. 893 (1970) reversed a conviction of unauthorized absence because the appellant did not receive his orders to active duty and consequently never reported. Dolan was in Denmark and never received notice of his discharge from the National Guard, and never received any other orders. Hoersch received his discharge, as well as a copy of his special orders, and in fact, exchanged correspondence with military authorities challenging his activation....