Schumacher v. Aldridge

• Citation: 665 F. Supp. 41
• Decision Date: 16 July 1987
• Docket Number: Civ. A. No. 86-2015-LFO.
• Parties: Ed SCHUMACHER, et al., Plaintiffs, v. Edward C. ALDRIDGE, Jr., Secretary of the Air Force, Defendant.
• Court: U.S. District Court — District of Columbia

665 F. Supp. 41

Ed SCHUMACHER, et al., Plaintiffs, v. Edward C. ALDRIDGE, Jr., Secretary of the Air Force, Defendant.

Civ. A. No. 86-2015-LFO.

United States District Court, District of Columbia.

July 16, 1987.

Edward Silver, Larry M. Lavinsky, Joan Z. McAvey, Proskauer Rose Goetz & Mendelsohn, Washington, D.C., for plaintiffs.

Richard K. Willard, Asst. Atty. Gen., Joseph E. diGenova, U.S. Atty., Vincent Garvey, Mellie H. Nelson, Attys., U.S. Dept. of Justice, Civ. Div., Washington, D.C. (Steven J. Pecinovsky, Captain, USAF, Gen. Litigation Div., Office of The Judge Advocate Gen., of counsel), for defendant.

MEMORANDUM AND ORDER

OBERDORFER, District Judge.

Plaintiffs are three persons who served as merchant seamen in World War II, and the American Federation of Labor, Congress of Industrial Organizations (AFLCIO). Defendant is Edward C. Aldridge, who is sued in his capacity as Secretary of the Air Force. Title IV of P.L. 95-202, 91 Stat. 1449 (1977) (codified at 38 U.S.C. § 106 note) authorizes the Secretary to recognize the "active military service" of certain groups of individuals who engaged in activities related to World War II. Plaintiffs seek judicial review of the Secretary's decisions denying such recognition to (1) American merchant seamen who rendered service to the U.S. Armed Forces while in oceangoing service from December 7, 1941 to December 31, 1946 ("Oceangoing Group") and (2) American merchant seamen who participated in WW II military invasions ("Invasion Group"). Plaintiffs claim that the denials were arbitrary and capricious, an abuse of discretion, and contrary to law. 5 U.S.C. § 706(2)(A) & (B).

As relief, plaintiffs pray at a minimum for an order directing the Secretary to determine that the service of the Invasion Group was active military service for purposes of benefits under Title IV,¹ and for an order directing the Secretary to reconsider the application filed on behalf of the Oceangoing Group.

I.

Section 401(a) of Title IV of the G.I. Bill Improvement Act of 1977, 38 U.S.C. § 106 note, provides that:

(1) Notwithstanding any other provision of law, the service of any person as a member of the Women's Air Forces Service Pilots (a group of Federal civilian employees attached to the United States Army Air Force during World War II), or the service of any person in any other similarly situated group the members of which rendered service to the Armed Forces of the United States in a capacity considered civilian employment or contractual service at the time such service was rendered, shall be considered active duty for the purposes of all laws administered by the Veterans' Administration if the Secretary of Defense, pursuant to regulations which the Secretary shall prescribe —

(A) after a full review of the historical records and all other available evidence pertaining to the service of any such group, determines, on the basis of judicial and other appropriate precedent, that the service of such group constituted active military service, and

(B) the person is entitled to an honorable discharge.

(2) In making a determination under clause (A) ... the Secretary of Defense may take into consideration the extent to which —

(A) such group received military training and acquired a military capability or the service performed by such group was critical to the success of a military mission,

(B) the members of such group were subject to military justice, discipline, and control,

(C) the members of such group were permitted to resign,

(D) the members of such group were susceptible to assignment for duty in a combat zone, and

(E) the members of such group had reasonable expectations that their service would be considered to be active military service.

The original draft of section 401 was submitted to the Senate on October 19, 1977 by Senator Barry Goldwater as an amendment to the G.I. Bill Improvement Act of 1977, and made benefits available only to the Women's Air Forces Service Pilots (WASPs). 123 Cong.Rec. 34373-74 (1977). Members of this organization flew military aircraft during World War II within the continental United States and Canada. Senator Alan Cranston, chairman of the Senate Veterans Affairs Committee, opposed the amendment on the ground that other civilians, including members of the Merchant Marine, were also "subject to hazards and dangers while rendering valuable services in support of the Nation's defense." 123 Cong.Rec. 34376 (1977). Referring to the large number of "merchant marine personnel still living who served aboard ships under Navy regulations during World War II in hazardous areas," Senator Cranston cautioned against creating a precedent entitling persons classified as civilians to veterans' benefits. Id. at 34377. Instead of defeating the amendment, however, Senator Cranston's remarks led to its expansion. On November 3, 1977, Congressman Olin Teague, a member of the House Committee on Veterans' Affairs, proposed that the section be expanded beyond the WASPs to cover all groups "similarly situated." With this alteration, section 401 was enacted into law.

In 1979, as contemplated by 401(a)(1), the Secretary of Defense adopted regulations implementing that section. 44 Fed. Reg. 11,223 (1979), 32 C.F.R. Part 47 (1980). The current regulations, adopted in 1983, provide in part:

§ 47.4 Policy

(a) It is DoD policy to determine whether the civilian employment or contractual services of a civilian or contractual group shall be considered active military service for the purposes of laws administered by the Veterans Administration by considering judicial and other appropriate precedents, including the extent to which the members of such a group:

(1) Received military training and acquired a military capability, or the service performed by such group was critical to the success of a military mission.

(2) Were subject to military justice, discipline, and control.

(3) Were permitted to resign.

(4) Were susceptible to assignment for duty in a combat zone.

(5) Had reasonable expectations that their service would be considered to be active military service (see Pub.L. 95-202).

48 Fed.Reg. 38816 (1983), 32 C.F.R. Part 47 (1986).

The regulations further provide for the establishment of the Department of Defense Civilian/Military Service Review Board and Advisory Panel. That Board consists of a chairman, who votes only in the event of a tie, and a representative of the Secretary of Defense and of each of the Military Departments. The Board reviews each application and issues a written recommendation to the Secretary as to whether the service of the applicant group should be considered active military service for purposes of Title IV. Under section 47.6 of the regulations, the Board's review is limited to the written submissions filed by the applicant in support of its application, a written report prepared by the appropriate member or members of the Advisory Panel, and any other relevant information available to the Board and the criteria established by law. The Board then transmits its recommendation to the Secretary of the Air Force, to whom the responsibility for making a final decision has been delegated. The Board's recommendations and accompanying rationale have been adopted by the Secretary without fail.

Since 1977, 64 groups have applied for "active military service" status under section 401. Of these applicants, fourteen groups have been approved.²

The first group approved, not surprisingly, was the Women's Airforces Service Pilots (WASPs). Complaint, Exhibit A. That organization consisted of women pilots, responsible primarily for ferrying military aircraft within the continental United States and Canada. In support of its recommendation that this service be considered active military service, the Board concluded that the WASPs' functions "were essentially identical to any military pilot assigned to the Ferrying Division, Air Transport Command." Id. at 1. The Board also concluded that the WASP organization was integrated into a military command and control system, although it did not explain the features of that integration. Of all the factors, however, the Board placed greatest emphasis on the expectations of military officials, concluding that "the military leaders of the day would appear to have had no doubt the WASP service was military...." Id. at 2.

Another successful applicant group was the Signal Corps Female Telephone Operators Unit. Complaint, Exhibit B. Women in this Unit operated telephone switch-boards in 75 cities in France and England during World War I. In an opinion slightly more than one page long, the Board recommended that their service be deemed active military service. In full, the Board reasoned:

The female telephone operators were recruited for their unique skills which were deemed necessary to improve the operating efficiency of the military telephone system of the American Expeditionary Forces.

With the exception of those in training or en route at the time the group was deactivated, they served overseas with the Army. Availability of the female operators theoretically released soldiers for combat or telephone operators for service at more dangerous locations.

Female telephone operators were hired as civilian employees of the Signal Corps. Since no legal means existed at the time to enlist or commission women into the Army, it was the only means to acquire their services. The Board concludes that without the statutory restrictions prohibiting women in the Army, the Female Signal Corps Telephone Operators Unit could have been and probably would have been regularly enlisted into the Army.

Id. at 1-2.

The Secretary also approved the application filed on behalf of the World War I Quartermaster Corps Female Clerical Employees Serving With the American Expeditionary Forces. Complaint, Exhibit F. These women were contract employees hired for clerical positions "because of a continuing shortage of qualified stenographers/typists" during...