O'MARA v. Zebrowski, 19288.

• Decision Date: 10 August 1971
• Docket Number: No. 19288.,19288.
• Citation: 447 F.2d 1085
• Parties: John C. O'MARA, Appellant, v. Captain William ZEBROWSKI, U.S.A.R., Commanding Officer and the Honorable Stanley Resor, Secretary of the Army.
• Court: U.S. Court of Appeals — Third Circuit

447 F.2d 1085 (1971)

John C. O'MARA, Appellant, v. Captain William ZEBROWSKI, U.S.A.R., Commanding Officer and the Honorable Stanley Resor, Secretary of the Army.

No. 19288.

United States Court of Appeals, Third Circuit.

Argued April 5, 1971.

Decided August 10, 1971.

John David Egnal, Egnal & Egnal, Philadelphia, Pa., for appellant.

Barry W. Kerchner, Asst. U. S. Atty., (Louis C. Bechtle, Philadelphia, Pa., on the brief), for appellees.

Before GANEY, VAN DUSEN and GIBBONS, Circuit Judges.

OPINION OF THE COURT

VAN DUSEN, Circuit Judge.

Appellant, John C. O'Mara, a member of the United States Army Reserve, filed the instant action to obtain relief from a Department of the Army order of March 5, 1970, directing him to perform 18 months and 25 days of active duty in the United States Army. O'Mara appeals from an August 11, 1970, order of the district court dismissing his complaint, after a hearing, for failure to state a claim upon which relief can be granted. See O'Mara v. Zebrowski, 315 F.Supp. 1195 (E.D.Pa.1970).

In June 1969, during the course of a regularly scheduled physical examination prior to his unit's summer encampment, O'Mara was referred to the United States Army Hospital at Valley Forge for an evaluation of his physical condition. At Valley Forge high blood pressure was diagnosed and, as a result, O'Mara returned to his summer encampment but spent his entire encampment period confined to the barracks area on a no-duty status for medical reasons. After O'Mara's unit returned from summer encampment, the Army continued its medical evaluation of O'Mara in order to determine his fitness for retention in the Army Reserves. This continuing medical evaluation generated the present controversy.

Five unexcused absences from drill ("unit training assemblies") accumulated during a one-year period constitute failure to participate satisfactorily in the Army Ready Reserve. A member of the Army Ready Reserve who fails to participate satisfactorily in this respect will be ordered to active duty for a period which, when added to his prior service on active duty, will total 24 months. Army Reg. 135-91(12); 10 U.S.C. § 673a (Supp. V, 1969). Prior to requesting that a member who fails to participate satisfactorily be ordered to active duty, the unit commander must determine if "any cogent or emergency reasons existed which prevented the member from attending" the drill which resulted in an accrual of a total of five or more unexcused absences in a one-year period. Army Reg. 135-91(e) (2).

The record is not entirely clear with respect to how many unit training assemblies O'Mara missed. It appears that, during a one-year period commencing prior to the summer encampment of July 1969 and extending to October 7, 1969, O'Mara accumulated at least 19 unexcused absences from unit training assemblies.¹ Throughout this period O'Mara received by certified mail numerous warnings regarding his failure to participate satisfactorily. On October 7, 1969, Captain Zebrowski, O'Mara's unit commander, notified O'Mara that he would recommend within 10 days that O'Mara be ordered to active duty training unless O'Mara presented some cogent reason for delay. When O'Mara failed to respond, Captain Zebrowski recommended that O'Mara be ordered to active duty training. On November 19, 1969, Headquarters, First United States Army, returned the recommendation for involuntary active duty without action, and directed that O'Mara not be charged with the accumulated unexcused absences since the warning letters that had been sent to him were an obsolete form. Prior to the time that this letter was received by Captain Zebrowski, O'Mara accumulated four unexcused absences in November 1969. A proper warning letter was sent to O'Mara. In December 1969, O'Mara accumulated two more unexcused absences, once more pushing the total past the requisite five. Again, a proper warning letter was sent to O'Mara. On January 13, 1970, Captain Zebrowski sent O'Mara a letter advising him that a request to have O'Mara ordered to active duty had been initiated as a result of five or more unexcused absences. On February 25, 1970, Headquarters, First United States Army, sent O'Mara a letter advising him that active duty orders would be issued in approximately 30 days. That letter provided that "In the event you wish to contest your order to active duty by requesting a delay or relief from call to active duty, you must immediately present a written request with documentation through your unit commander" (emphasis added). After receiving this letter, O'Mara took an appeal by submitting to his unit commander a written statement of his understanding of why and how he had been relieved of his obligation to attend unit training assemblies. The unit commander forwarded that letter to the area commander, the intermediate level in the appeal process. The area commander viewed O'Mara's explanation as inadequate, and recommended that the Delay Appeal Board deny the appeal. The Delay Appeal Board denied the appeal,² and this suit for injunctive relief against the order to active duty followed.

It is a well established principle that the federal courts will not review discretionary decisions of the military authorities made within their valid jurisdiction.³ This does not mean that military orders are insulated from claims that they were promulgated in violation of the military's own regulations,⁴ but O'Mara does not claim that in promulgating his activation order the Army violated its own regulations or the procedures that those regulations mandate.⁵ Instead, O'Mara contends that Army Reg. 135-91, which governed the involuntary activation of O'Mara, is constitutionally insufficient for failure to meet minimum standards of due process of law required by the fifth amendment. We believe that a federal court has jurisdiction to review procedures employed by the military to determine if they comport with the requirements of procedural due process in light of the context in which the procedures operate. Brown v. McNamara, 387 F.2d 150, 152 (3rd Cir.1967).

Army Reg. 135-91 "prescribes policies, procedures, and responsibilities pertaining to satisfactory completion of the Ready Reserve service obligation and enforcement procedures pertaining thereto for certain enlisted male personnel of the Reserve components."⁶ It prescribes that those reservists who "fail to attend prescribed unit training without proper authority or who, because of change in residence, job interference or other reasons, are unable to continue serving in a unit, will be ordered to active duty. * * *"⁷ As noted above, before requesting that a reservist who fails to attend prescribed unit training be ordered to active duty, the unit commander will "determine if any cogent or emergency reasons existed which prevented the member from attending. If no such reasons existed, he will * * * request that the member be ordered to active duty * * * and will then immediately notify the member of the action he has taken. * * *"⁸ The regulation also permits appeals from involuntary orders to active duty.⁹ The appeal procedure is not set out with crystal clarity in the regulation, but it appears that appeals are directed first to the area commander and then, if denied, are automatically forwarded for further consideration to the Commanding Officer, United States Army Reserve Components Personnel Center, Fort Benjamin Harrison, Indiana.¹⁰

O'Mara contends, specifically, that this procedure is unconstitutional for failure to meet minimum standards of due process because it fails to require a hearing prior to the unit commander's determination that a reservist has performed unsatisfactorily and his resultant request that the reservist be ordered to active duty, because it fails to require that the reservist be given a copy of the recommendation of the area commander that accompanies the appeal from the intermediate level to the final appellate authority at Fort Benjamin Harrison, and because it fails to provide a right to counsel.¹¹

The absence of these safeguards must be considered in light of the factual context of this case, for "a procedural rule that may satisfy due process in one context may not necessarily satisfy procedural due process in every case." Bell v. Burson, 402 U. S. 535, 91 S.Ct. 1586, 29 L.Ed.2d 90 (U. S., May 24, 1971). We start from the proposition urged upon us by the Government that "to those in the military or naval service of the United States the military law is due process." Reaves v. Ainsworth, 219 U.S. 296, 304, 31 S.Ct. 230, 233, 55 L.Ed. 225 (1911). That statement of the Supreme Court might appear to end our inquiry here, but, in the 60 years since Reaves was decided, the Court has expanded considerably the requirements of the somewhat vague and elastic concept "due process of law." Throughout the same period, however, the Court has fairly consistently adhered to the concept that the civilian courts are to inject themselves into the internal operations of the military only in extraordinary circumstances,¹² and this consideration is pertinent when federal courts are asked effectively to rewrite the military's internal procedures.

Involuntary activation, of course, has a substantial impact upon the reservist activated. Although O'Mara seeks to characterize involuntary activation as "punishment," and thereby magnify its impact upon him, this characterization does not fit well, for involuntary activation befalls reservists who fail or are unable to attend unit training assemblies because of a change in residence or job interference, as well as those who fail to attend without proper authority.¹³ Rather, the primary purpose of involuntary activation appears to be to maintain the military proficiency that is otherwise maintained by attendance at unit training assemblies.

Persons in the military do not enjoy the full range of rights enjoyed by civilians,¹⁴ and, in addition, voluntary enlisted...