Sharp v. Weinberger

• Decision Date: 18 September 1984
• Docket Number: Civ. A. No. 84-2277.
• Citation: 593 F. Supp. 886
• Parties: Allen SHARP, Plaintiff, v. Caspar WEINBERGER, et al., Defendants.
• Court: U.S. District Court — District of Columbia

593 F. Supp. 886

Allen SHARP, Plaintiff, v. Caspar WEINBERGER, et al., Defendants.

Civ. A. No. 84-2277.

United States District Court, District of Columbia.

August 30, 1984.

As Amended September 18, 1984.

Charles W. Halleck, Washington, D.C., for plaintiff.

John Oliver Birch, Asst. U.S. Atty., Washington, D.C., for defendants.

MEMORANDUM

OBERDORFER, District Judge.

Plaintiff in this action challenges the validity of a Department of Defense regulation requiring that individuals holding Ready Reserve positions in the military be transferred to Standby Reserve or certain other positions if, in their civilian capacities, they hold "key" positions of employment in the federal government. Plaintiff is a federal district judge in Indiana who is also — at the present time — an officer in the Air Force Ready Reserve. The Air Force has notified plaintiff of his imminent transfer to Standby Reserve pursuant to the above-mentioned regulation, and has indicated to the Court that it plans to effect the transfer on September 1, 1984. Defendant seeks declaratory relief under 28 U.S.C. §§ 2201, 2202, and injunctive relief under F.R.Civ.P. 65 barring the Air Force from effecting the transfer. The matter is presently before the Court on defendant's motion to dismiss for failure to state a claim upon which relief can be granted under F.R.Civ.P. 12(b)(6).

I.

On a motion to dismiss for failure to state a claim, the facts alleged by the plaintiff must be taken as true. According to the complaint and supporting memorandum, plaintiff has been an officer in the Air Force Ready Reserve continuously since June 2, 1969. He currently holds the rank of Lieutenant-Colonel and serves in the capacity of Staff Judge Advocate of the 434th Tactical Fighter Wing at Grissom Air Force Base, Indiana. Since November 1, 1973, plaintiff has also held a commission under Article III of the Constitution of the United States as a Judge of the United States District Court for the Northern District of Indiana.

Plaintiff signed his most recent "Ready Reserve Service Agreement" on April 6, 1983. That agreement reads, in pertinent part:

I agree to be a member of the Ready Reserve until 31 Aug 86. I certify that as a member of the Ready Reserve until this date, I am and will remain immediately available for Presidential mobilization and for any reason other than medical or administrative disqualification before expiration of this agreement, I will be retained in the Ready Reserve and assigned to the ready reinforcement personnel section where I will continue to be available for mobilization if the President declares a national emergency.

Thereafter, on April 6, 1984, the Department of Defense issued DoD Directive 1200.7, which addressed, inter alia, the need to ensure that members of the Ready Reserve would be immediately available for active duty in the event of a mobilization. See Memorandum in Support of Plaintiff's Complaint, Exhibit 2. The Directive, in pertinent part, aims "to preclude conflicts between emergency manpower needs of civilian activities and the military during a mobilization." Id., Exhibit 2, at ¶ E.2.a. The Directive expressly requires that:

to ensure that federal employees essential to the continuity of the federal government are not retained as members of the Ready Reserve ... the Military Department Secretaries shall transfer Ready Reservists occupying key positions to Standby Reserve or the Retired Reserve, or shall discharge them, as appropriate, under 10 U.S.C. 271(b).

Id., Exhibit 2, at ¶¶ E.2.b-E.2.b.1. The Directive indicates that certain federal positions "are, by definition, key positions," and it lists federal district judges as falling within this category. Id., Exhibit 2, at 2-1, ¶¶ 5, 5(b).

By a letter dated June 11, 1984, the Air Force notified plaintiff of his imminent transfer to the Standby Reserve pursuant to DoD Directive 1200.7. Plaintiff, who had previously sent a lengthy correspondence to the Air Force contesting the validity of any transfer to the Standby Reserve due to his federal judgeship, requested a delay of the transfer so as to prepare a waiver to be submitted to the Secretary of Defense. By letter dated July 2, 1984, the Air Force explained that plaintiff's previous correspondence had been forwarded to the Judge Advocate General of the Air Force and from there presented to the Office of the Secretary of Defense, from which a denial of a waiver was issued, and that therefore no action to forestall the transfer would be taken. See id., Exhibits 1, 4, 5, 6.

Plaintiff filed this complaint on July 24, 1984. The Court has now had an opportunity to review the memoranda in support of defendant's motion to dismiss, and the opposition thereto, and for the reasons stated below, finds that the motion to dismiss must be granted.

II.

Plaintiff initially claims that DoD Directive 1200.7, as applied to Ready Reserve members who are also federal employees, violates 5 U.S.C. § 5534 (1982), which states that

A Reserve of the armed forces may accept a civilian office or position under the Government of the United States ... and he is entitled to receive the pay of that office or position in addition to pay and allowances as a Reserve ...

In plaintiff's view, reserve personnel who simultaneously hold federal employment are, by virtue of 5 U.S.C. § 5534, protected against any "diminution of salary because of `dual government employment.'" Memorandum in Support of Plaintiff's Complaint at 10. Plaintiff argues that transfer to the Standby Reserve will indeed cause plaintiff a loss of military pay — in that plaintiff will no longer be eligible for occasional periods of paid temporary active duty — and that therefore the Directive violates 5 U.S.C. § 5534.

Plaintiff, however, cites no cases directly on point, and misconstrues the purpose of the statutory provision. Military personnel who are present or former regular members of the armed forces have long been barred under the Dual Compensation Act from earning full dual compensation as a result of dual appointment in the military and the civilian branch of the federal government. See 5 U.S.C. §§ 5531-5533. Courts have noted that 5 U.S.C. § 5534 clarifies that reserve members of the military are not subject to the same restrictions, but indeed are free to seek civilian employment in the federal government and obtain compensation therefrom without any direct offset in the military compensation to which they are otherwise entitled. See Puglisi v. United States, 564 F.2d 403, 405-07, 215 Ct.Cl. 86 (1977), cert. denied, 435 U.S. 968, 98 S.Ct. 1606, 56 L.Ed.2d 59 (1978). There is no indication in either the cases or the legislative history, however, to indicate that by enacting 5 U.S.C. § 5534 or any of its predecessors Congress also intended to preclude the military from adjusting a reservist's readiness status, if deemed necessary by the military, in light of his or her civilian employment. Indeed, such an interpretation would conflict with 10 U.S.C. § 271, which expressly allows the President and the Secretaries of the armed forces to do so. The latter statutory provision explicitly allows the President to prescribe regulations to ensure that "Reserve members whose mobilization in an emergency would result in an extreme personal or community hardship are not retained in the Ready Reserve." 10 U.S.C. § 271(a)(5). Moreover, the provision orders the Secretary of Defense to prescribe regulations providing that "any member of the Ready Reserve" so designated "shall, as appropriate, be transferred to the Standby Reserve, discharged, or if such a member is eligible and applies therefore, transferred to the Retired Reserve." Id. § 271(b) (emphasis added). DoD Directive 1200.7, which expressly states that it is promulgated pursuant to this statutory provision, appears to be a faithful and reasonable application of this statutory command. See Memorandum in Support of Plaintiff's Complaint, Exhibit 2, at ¶ E.2.b.1.

Under plaintiff's interpretation of 5 U.S.C. § 5534, the Air Force would be barred from altering the mobilization status of any reservist who simultaneously held a federal job. The Court cannot accept this interpretation. In light of the lack of any explicit legislative history to support plaintiff's construction, and in light of the obvious purpose of 10 U.S.C. § 271, it is more reasonable to conclude that although 5 U.S.C. § 5534 clarified that reservists were exempted from the Dual Compensation Act, it did not go so far as to give reservists who were also federal employees an unique exemption from the military's readiness criteria.

III.

Plaintiff also claims that his "Ready Reserve Service Agreement" constitutes a contract barring the Air Force from transferring him to the Standby Reserve. Plaintiff cites no cases directly on point, but relies primarily on Cinciarelli v. Carter, 662 F.2d 73 (D.C.Cir.1981), as support for his argument.

In Cinciarelli, the Court of Appeals of this Circuit implicitly acknowledged that a "Standard Written Agreement" granted to reserve officers pursuant to 10 U.S.C. §§ 679, 680 constituted a contract binding on the military as well as on the reserve officer. Standard Written Agreements, or SWAG's, guarantee a reserve officer entering active duty a "definitive term of active duty and ensure that the Reservist will not be released involuntarily except according to specified procedures." Id. at 75. The Court of Appeals explained that the legislative history of the statutory provisions mandating such SWAGs contained clear and explicit expressions of Congressional concern that reservists entering active duty must sever themselves from civilian employment and therefore can suffer considerable hardship if their active duty period is abruptly and involuntarily terminated. The Court of Appeals, thus, was able to find that SWAGs give reservists contract-like security against termination from active duty largely because Congress had...