Nicholson v. Brown
| Decision Date | 26 July 1979 |
| Docket Number | No. 77-1782,77-1782 |
| Citation | 599 F.2d 639 |
| Parties | William Daniel NICHOLSON, III, Plaintiff-Appellee, Cross-Appellant, v. Harold BROWN, Secretary of Defense, et al., Defendants-Appellants, Cross-Appellees. |
| Court | U.S. Court of Appeals — Fifth Circuit |
Morton Hollander, Chief, Harland F. Leathers, Atty., Appellate Section, Dept. of Justice, Washington, D. C., for defendants-appellants, cross-appellees.
Tom Thomas, Dallas, Tex., J. Byron Holcomb, Bremmerton, Wash., for plaintiff-appellee, cross-appellant.
Appeals from the United States District Court for the Northern District of Texas.
Before WISDOM, CLARK and FAY, Circuit Judges.
Major William D. Nicholson, M.D., plaintiff-appellee, was a participant in the armed services' "Berry Plan". This plan permits deferment of a draftee's active military service pending completion of his medical training. Nicholson entered into the program in 1967. This was a critical time in Nicholson's professional career. This was also a critical time in the history of the country. The Berry Plan was a program that gave aspiring doctors a break. Shortly before he was called to active duty, Nicholson filed a Habeas corpus petition seeking review of the decision of the Secretary of the Air Force denying his request for an exemption from active military duty on the ground of his essentiality to his community. 1 The district court granted the petition and entered an order having the effect of revoking Nicholson's active military obligation. On appeal, the Air Force contends that its action on Nicholson's exemption request is not reviewable, and that even if its action is reviewable the district court's decision exceeded the proper scope of review. Nicholson contends that the appeal is moot. We hold that the appeal is not moot, and that the Air Force's action was reviewable, although under a narrow standard of review. We hold that the district court exceeded its proper role in this case. We reverse its grant of the writ.
The "Berry Plan" is a nonstatutory program sponsored by the Department of Defense and the Selective Service System to enable the military departments to secure their requirements for doctors without too seriously interfering with the professional studies and career of a prospective doctor. 32 C.F.R. § 58.1(a). Under the Berry Plan, a person vulnerable to the military draft may choose appointment to a military reserve component, thereby deferring his military service obligations while undertaking further medical training. 32 C.F.R. § 58.1(b).
In September 1967 Nicholson volunteered to participate in the Air Force Medical Service Early Commissioning Program. He received an appointment as a Second Lieutenant in the Air Force Reserve, to enter active duty within one year from the date of his appointment to the Medical Corps, unless deferred, and to serve on active duty for a period of at least two consecutive years unless sooner relieved of such duty by proper authority. In 1971 Nicholson accepted an active duty deferment pending completion of his residency in general surgery at Parkland Memorial Hospital in Dallas, Texas. In 1974 Nicholson advised the Air Force that he would complete his residency training in 1976 and would be available for active duty in July 1976. He expressed preference for assignment to the southwest or southcentral United States. The Air Force accordingly assigned Nicholson to the Columbus (Mississippi) Air Force Base.
On June 25, 1976, Nicholson submitted an application for exemption from active duty based on "community essentiality". Paragraph 23 of Air Force Regulation 45-26, which implements the Department of Defense Instruction 1205.1(X)(D) with respect to Air Force medical officers, provides in part:
On receipt of active duty orders, any Reserve medical or dental officer or employer may submit a request for delay in entrance on active duty or exemption from active duty to AFMPC/SG, Randolph AFB TX 78148. If disapproved, when the request is based on alleged Community essentiality or hardship, the officer or employer may submit an appeal to the Secretary of the Air Force Personnel Council, Wash., D.C. 20330, for a final determination. (Emphasis added.)
Nicholson contends that he had performed weekend emergency room service at a hospital in Freeport, Texas since 1970 and that he planned to set up full-time practice in Freeport. Freeport is a Gulf Coast community some 300 miles from Dallas and remote from any other major metropolitan area. Nicholson submitted with his exemption application letters from several prominent Freeport residents. These explained that the Freeport area was in dire need of additional physicians, and especially of general surgeons such as Nicholson.
Shortly after Nicholson mailed his application, a panel of Air Force medical officers convened to consider his request. The panel unanimously denied Nicholson an exemption. The minutes of the panel meeting, admitted in the record in the Habeas proceeding, show that the panel used the following criteria in determining community essentiality:
a. The services performed by the physician are essential to the maintenance of the health, safety or welfare of his community.
b. The removal of this physician from the community would result in an extreme shortage or elimination of an especially critical community service.
c. The service cannot be performed by other persons residing in the area concerned.
d. The physician cannot be replaced in the community by another physician who can perform such service within the time allotted by a postponement of entry onto active duty.
e. The physician will be ruled not essential to a community where he has never practiced.
f. The needs of the civilian community must be balanced against the needs of the military service.
According to the minutes, the panel doubted that Nicholson ever practiced in Freeport, even on a part-time basis, for Nicholson had in May 1976 requested a personal hardship exemption on the ground that his wife would divorce him if he left the Dallas area. The panel minutes noted that, regardless of whether Nicholson had practiced part-time in Freeport, "the needs of the Air Force were determined to be greater". The minutes state that the Air Force's needs for general surgeons were not being met adequately and conclude: "The consensus was that (Nicholson) did not satisfy the criteria for community essentiality".
Nicholson appealed unsuccessfully to the Air Force Personnel Council. He then filed an action for Habeas corpus. The district court, after a trial on the merits, ruled that the Air Force had arbitrarily denied Nicholson's application. Nicholson v. Rumsfeld, 1977, N.D.Texas, 425 F.Supp. 780. The court recognized that the scope of review of military personnel decisions is narrow. It recognized that there is a presumption "that government officials carry out their duties in a lawful manner", Id. at 783, but ruled that the presumption cannot stand in the face of a Prima facie showing by the petitioner that his request was arbitrarily denied. The letters submitted by Nicholson in support of his exemption, in the court's opinion, made out a Prima facie case for exemption. Nicholson's demonstration that he had complied with the pertinent regulations in requesting an exemption, together with his demonstration that he had made out a Prima facie case for exemption, overcame the presumption of regularity of administrative action. The court considered the administrative record for evidence supporting the Air Force's denial of the application. It found no support for the panel's belief that Nicholson could not have practiced in Freeport; it found that the panel's reference to Nicholson's earlier request for a personal hardship exemption was indicative of bias against Nicholson. The court also rejected as unsupported by the administrative record the panel's conclusion that the Air Force had a greater need than Freeport for Nicholson's services. Evidence brought out in the Habeas proceedings showed that Columbus Air Force Base had a ratio of one surgeon per 7,000 to 12,000 people, a much higher ratio than Freeport's. Nicholson's letters put forward an opposite result. The court rejected the Air Force's contention that the relevant need was not the Air Force's need at the Columbus base, but its worldwide needs. The court concluded that the Air Force arbitrarily denied Nicholson's exemption request and that the denial was a breach of the Berry Plan agreement so material as to justify cancellation of Nicholson's active duty obligation under the Berry Plan. The court did not reach Nicholson's constitutional claims.
Appellee Nicholson has moved for dismissal of the appeal on mootness grounds. He argues that his six-year obligation to the Air Force Reserve expired in March of 1974, and that his 1971 commission to the Medical Corps expired on November 29, 1977. See 10 U.S.C. § 651(a). In his Habeas corpus petition Nicholson requested a declaratory judgment as to his total period of military obligation. Now he contends that the district court declared that his statutory military obligation was to run only until November of 1977. The issue of the extent of his statutory obligation is not properly before this Court, he asserts, because the Air Force has failed to assign error to the district court's ruling in this regard. Because his military obligation has expired, according to the district court's judgment, so he argues, the Air Force no longer has control of or jurisdiction over him. Reversal of the judgment below will not effectively reinstate his active duty orders inasmuch as the Air Force has no further authority over him. The appeal, he concludes, is therefore moot.
We disagree. To the extent that the district court's judgment can be construed to encompass a declaration as to Nicholson's total military obligation, 2 that issue is properly before us because the appellants have appealed the...
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