Noyd v. McNamara, Civ. A. No. 67-C-143.

CourtUnited States Courts of Appeals. United States Court of Appeals (7th Circuit)
Writing for the CourtWILLIAM E. DOYLE
Citation267 F. Supp. 701
PartiesCaptain Dale E. NOYD, FR28084, Plaintiff, v. Honorable Robert S. McNAMARA, Secretary of Defense, Honorable Harold W. Brown, Secretary of the Air Force, General John P. McConnell, Chief of Staff, United States Air Force, Lieutenant General Thomas S. Moorman, Superintendant, United States Air Force Academy, Major General G. B. Greene, Jr., Assistant Deputy Chief of Staff/Personnel for Military Personnel, United States Air Force, Lieutenant General Lewis B. Hershey, National Director, Selective Service System, Colonel John E. Horne, Deputy Chief of Staff, Personnel, United States Air Force Academy, Colonel Henry E. Wojdyla, Head, Department of Psychology and Leadership, United States Air Force Academy, Brigadier General Robert McDermott, Dean of Faculty, United States Air Force Academy, Defendants.
Docket NumberCiv. A. No. 67-C-143.
Decision Date25 April 1967

267 F. Supp. 701

Captain Dale E. NOYD, FR28084, Plaintiff,
v.
Honorable Robert S. McNAMARA, Secretary of Defense, Honorable Harold W. Brown, Secretary of the Air Force, General John P. McConnell, Chief of Staff, United States Air Force, Lieutenant General Thomas S. Moorman, Superintendant, United States Air Force Academy, Major General G. B. Greene, Jr., Assistant Deputy Chief of Staff/Personnel for Military Personnel, United States Air Force, Lieutenant General Lewis B. Hershey, National Director, Selective Service System, Colonel John E. Horne, Deputy Chief of Staff, Personnel, United States Air Force Academy, Colonel Henry E. Wojdyla, Head, Department of Psychology and Leadership, United States Air Force Academy, Brigadier General Robert McDermott, Dean of Faculty, United States Air Force Academy, Defendants.

Civ. A. No. 67-C-143.

United States District Court D. Colorado.

April 25, 1967.


267 F. Supp. 702

Marvin M. Karpatkin, New York City, William F. Reynard, Denver, Colo., for plaintiff, Ernest Angell, John de J. Pemberton, Jr., Melvin L. Wulf, Eleanor H. Norton and Rhoda H. Karpatkin, New York City, of counsel.

Lawrence M. Henry, U. S. Atty., for Dist. of Colorado, Denver, Colo., Barefoot Sanders, Asst. Atty. Gen., Harland F. Leathers, Frederick W. Drogula and C. Westbrook Murphy, Attys., Dept. of Justice, Washington, D. C., for defendants.

MEMORANDUM OPINION AND ORDER

WILLIAM E. DOYLE, District Judge.

Plaintiff, a regular commissioned officer in the United States Air Force, seeks declaratory relief, an injunction and writs of habeas corpus and mandamus. The demands for relief stem from the refusal of the defendants to recognize plaintiff's asserted status as a conscientious objector and to assign him accordingly or, in the alternative, to accept his resignation from the Air Force.

Plaintiff Noyd is an Air Force captain and has been a regular commissioned officer for over eleven years. He received his commission in 1955 following graduation with distinction from Washington State University as a member of the Air Force Reserve Officers' Training Corps. Upon entry on active duty he applied for and received eighteen months of flying training. From May, 1957 to May, 1960, he was assigned to a combat unit in England as a tactical fighter pilot. In 1958, plaintiff applied under the Air Force education program to enter graduate school in the field of psychology. His application was approved and he attended the University of Michigan for three years from June, 1960 to June, 1963, receiving a master's degree and completing one year of work toward the doctoral degree. During this period plaintiff was regularly promoted and received full pay and allowances. He in addition had his tuition and other college expenses paid. As a result of this educational program, plaintiff incurred a continuing service obligation of six years. This obligation expires in June of 1969.

During the summer of 1963, plaintiff was transferred to the United States Air Force Academy where he was assigned as an Assistant Professor in Psychology. It appears that on December 8, 1966, while thus assigned, plaintiff submitted a letter of resignation to the Academy Superintendent under the provisions of

267 F. Supp. 703
paragraph 16m, Air Force Regulation 36-12,1 for the "best interest" of the service. In this letter plaintiff stated that he was "opposed to the war that this country is waging in Vietnam * * *" The reasons given were essentially political in nature; however, the plaintiff did make reference to his belief in "ethical humanism."2 In the same letter, plaintiff also stated that he was "not a pacifist," acknowledging a belief in the necessity to employ force to deter or repel "totalitarian aggression."

Plaintiff's letter was submitted through channels to the Secretary of the Air Force, who denied the request on December 29, 1966. Meanwhile, on December 16, 1966, plaintiff addressed a second letter requesting that any reassignment be to duties providing minimum conflict with his professed beliefs. He had by this time learned that he was to be transferred to Cannon Air Force Base, New Mexico, purportedly for assignment to the Twenty-seventh Tactical Fighter Wing. The allegation is that this is a training base, or jumping-off base for Vietnam, where plaintiff would either be prepared for personal assignment to the combat zone, or would train others for such duty.

On December 28, 1966, plaintiff submitted a third letter alternatively requesting separation as a conscientious objector under the provisions of Air Force Regulation 35-24. This regulation provides for the recognition of a bona fide claim of conscientious objection by a member of the Air Force "to the extent practicable and equitable."3 This letter

267 F. Supp. 704
was submitted as an addendum to plaintiff's original request, and it repeated the ground for separation therein set forth. It also contained an explanation of his humanist beliefs which were defined by him as "respect and love for man, faith in his inherent goodness and perfectability, and confidence in his capability to ameliorate some of the banes of the human condition." Noyd was specific in asserting that he does not believe in the traditional Christian concept of a personal or anthropomorphic God,4 and does not claim membership in a particular religious organization.5 He reiterated that he is not a "total pacifist."6 Accompanying the letter was a statement from plaintiff's Base chaplain testifying to his sincerity and recommending that he be utilized in areas other than Vietnam.
267 F. Supp. 705
However, the chaplain stated that he could not classify plaintiff as a conscientious objector

On January 24, 1967, the Secretary of the Air Force again refused plaintiff's tender of resignation. Subsequently, plaintiff received orders assigning him to the Twenty-seventh Tactical Fighter Wing, Cannon Air Force Base, New Mexico, for upgrading in the F-100 aircraft. This aircraft is currently being used in Vietnam, and the probability is strong than anyone receiving training at Cannon can anticipate transfer to the combat zone. At this point, plaintiff filed his complaint here on March 27, 1967, seeking the relief described above.

Plaintiff's threefold contentions may be summarized as follows: He first asserts that the denial of his application for recognition as a conscientious objector violates his rights under the Constitution and relevant statutes and regulations. Secondly, he attacks the constitutionality of AFR 35-24 as lacking the minimum criteria of procedural due process. His third allegation is that the Air Force failed to follow the provisions of AFR 35-24, in that the Air Force failed to give reasons for the disapproval of his application.

We heard arguments on March 29, 1967, and entered a preliminary order noting probable jurisdiction. We temporarily enjoined defendant from requiring plaintiff to perform any combat-type activity, directly or indirectly. We did not interfere with the transfer of plaintiff to Cannon Air Force Base, but limited the injunction to the type of duty to which plaintiff could be assigned. At the same time, we set the case down for a hearing on the merits on April 19, 1967.

On April 12, 1967, defendant filed alternative motions to dismiss and for summary judgment. The assertions of the motion to dismiss were that plaintiff has failed to exhaust his administrative remedies; that the Constitution vests exclusive authority to govern the duty assignments of military personnel in the President and in Congress; that this action is an unconsented suit against the United States; and that the complaint fails to state a claim upon which relief can be granted. Among other things, the defendants stress that the Government has invested over $250,000.00 in giving plaintiff the training he has received; that there now exists a shortage of trained pilots in the combat zone in Vietnam; and that plaintiff voluntarily committed himself to service to June, 1969, when he accepted his educational training at the University of Michigan. These arguments are made in conjunction with the provision of AFR 35-24, which provides for the recognition of a bona fide claim of conscientious objection by a member of the Air Force only "to the extent practicable and equitable." See note 3, supra.

We proceeded with the previously scheduled hearing on April 19, 1967, notwithstanding the jurisdictional allegations made in defendants' motion to dismiss, reserving decision on the question of jurisdiction until plaintiff's responsive brief had been received. We also allowed plaintiff to submit evidence in further explanation of his beliefs and to call distinguished theologians and philosophers who testified in some depth to the spiritual and religious relationship between ethical humanism and organized religion.

The threshold question is whether this court has jurisdiction to entertain the suit and to grant the relief requested. On its face it is a collateral attack on an administrative decision which attack is made prior to the completion of proceedings in the department. It anticipates the refusal of the Air Force to recognize plaintiff's stand and seeks to avoid court martial proceedings and the imposition of sanctions. Thus, the initial question is whether plaintiff has exhausted the remedies which exist within the military establishment whereby this court can entertain the action.

As stated above, plaintiff has twice made applications for separation or for assignment which recognizes his conscientious

267 F. Supp. 706
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21 practice notes
  • Craycroft v. Ferrall, No. 22582
    • United States
    • United States Courts of Appeals. United States Court of Appeals (9th Circuit)
    • March 5, 1969
    ...Cir. 1968); Gann v. Wilson, 289 F.Supp. 191 (N.D.Cal. 1968); Crane v. Hedrick, 284 F.Supp. 250 (N.D.Cal.1968). But see Noyd v. McNamara, 267 F.Supp. 701 (D.Colo.), affirmed, 378 F.2d 538 (10th Cir.), cert. denied, 389 U.S. 1022, 88 S.Ct. 593, 19 L.Ed.2d 667 (1967). We need not reach the Gov......
  • Hammond v. Lenfest, No. 461
    • United States
    • United States Courts of Appeals. United States Court of Appeals (2nd Circuit)
    • June 10, 1968
    ...supra,7 and decided that Hammond had failed to exhaust his available administrative and military remedies, citing Noyd v. McNamara, 267 F.Supp. 701 (D.Colo.), aff'd, 378 F.2d 538 (10th Cir.), cert. denied, 389 U.S. 1022, 88 S.Ct. 593, 19 L.Ed.2d 667 (1967). On this appeal, the government ur......
  • Cortright v. Resor, No. 70 C 909.
    • United States
    • United States District Courts. 2nd Circuit. United States District Court (Eastern District of New York)
    • March 23, 1971
    ...686 (D.N.J.), aff'd, 387 F.2d 150 (3d Cir. 1967), cert. denied, 390 U.S. 1005, 88 S.Ct. 1244, 20 L.Ed.2d 105 (1968); Noyd v. McNamara, 267 F.Supp. 701 (D.Colo.), aff'd, 378 F.2d 538 (10th Cir.), cert. denied, 389 U.S. 1022, 88 S.Ct. 593, 19 L.Ed.2d 667 (1967). See also Note, God, The Army a......
  • Laxer v. Cushman, Misc. Civ. No. 69-28J.
    • United States
    • United States District Courts. 1st Circuit. United States District Courts. 1st Circuit. District of Massachusetts
    • June 19, 1969
    ...95 L.Ed. 146; In re Kelly, 1968, 5 Cir., 401 F.2d 211; Minasian v. Engle, 1968, 9 Cir., 400 F.2d 137; Noyd v. McNamara, 1967, D.Colo., 267 F.Supp. 701, 706, aff'd, 1967, 10 Cir., 378 F.2d 538, cert. denied, 1967, 389 U.S. 1022, 88 S.Ct. 593, 19 L.Ed.2d 667. This is a sound rule, founded upo......
  • Request a trial to view additional results
21 cases
  • Craycroft v. Ferrall, No. 22582
    • United States
    • United States Courts of Appeals. United States Court of Appeals (9th Circuit)
    • March 5, 1969
    ...Cir. 1968); Gann v. Wilson, 289 F.Supp. 191 (N.D.Cal. 1968); Crane v. Hedrick, 284 F.Supp. 250 (N.D.Cal.1968). But see Noyd v. McNamara, 267 F.Supp. 701 (D.Colo.), affirmed, 378 F.2d 538 (10th Cir.), cert. denied, 389 U.S. 1022, 88 S.Ct. 593, 19 L.Ed.2d 667 (1967). We need not reach the Gov......
  • Hammond v. Lenfest, No. 461
    • United States
    • United States Courts of Appeals. United States Court of Appeals (2nd Circuit)
    • June 10, 1968
    ...supra,7 and decided that Hammond had failed to exhaust his available administrative and military remedies, citing Noyd v. McNamara, 267 F.Supp. 701 (D.Colo.), aff'd, 378 F.2d 538 (10th Cir.), cert. denied, 389 U.S. 1022, 88 S.Ct. 593, 19 L.Ed.2d 667 (1967). On this appeal, the government ur......
  • Cortright v. Resor, No. 70 C 909.
    • United States
    • United States District Courts. 2nd Circuit. United States District Court (Eastern District of New York)
    • March 23, 1971
    ...686 (D.N.J.), aff'd, 387 F.2d 150 (3d Cir. 1967), cert. denied, 390 U.S. 1005, 88 S.Ct. 1244, 20 L.Ed.2d 105 (1968); Noyd v. McNamara, 267 F.Supp. 701 (D.Colo.), aff'd, 378 F.2d 538 (10th Cir.), cert. denied, 389 U.S. 1022, 88 S.Ct. 593, 19 L.Ed.2d 667 (1967). See also Note, God, The Army a......
  • Laxer v. Cushman, Misc. Civ. No. 69-28J.
    • United States
    • United States District Courts. 1st Circuit. United States District Courts. 1st Circuit. District of Massachusetts
    • June 19, 1969
    ...95 L.Ed. 146; In re Kelly, 1968, 5 Cir., 401 F.2d 211; Minasian v. Engle, 1968, 9 Cir., 400 F.2d 137; Noyd v. McNamara, 1967, D.Colo., 267 F.Supp. 701, 706, aff'd, 1967, 10 Cir., 378 F.2d 538, cert. denied, 1967, 389 U.S. 1022, 88 S.Ct. 593, 19 L.Ed.2d 667. This is a sound rule, founded upo......
  • Request a trial to view additional results

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