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LINSALATA v. CLIFFORD

August 27, 1968

Ralph LINSALATA, Bruce Kaplan, Steven King, Alan Savat, Arthur M. Sybell, Redmond A. Simonsen and Michael Schwimmer, Petitioners,
v.
Clark CLIFFORD, as Secretary of Defense, Harold Brown, as Secretary of the Air Force and Gen. Howell M. Estes, Jr., as Commander of the Military Airlift Command, United States Air Force, Respondents



The opinion of the court was delivered by: TENNEY

TENNEY, District Judge.

 Petitioners herein seek a writ of habeas corpus and a preliminary injunction, pursuant to 28 U.S.C. § 2241 and Rule 65 of the Federal Rules of Civil Procedure, respectively. On August 7, 1968, petitioners commenced a civil action on their own behalf and on behalf of all others similarly situated, pursuant to 28 U.S.C. § 1331, for a declaratory judgment and permanent injunctive relief.

 The facts indicate that petitioners (those named or represented herein), representing approximately 325 Air Force Reservists attached to the 904th Military Airlift Group, Stewart Air Force Base, Newburgh, New York (hereinafter also referred to as the "904th"), voluntarily enlisted in the United States Air Force Reserve during the period August 1963 through April 1967. *fn1" On the date of enlistment, each petitioner signed a Ready Reserve Agreement and a Statement of Understanding, both documents describing the reservist's availability for active duty.

 The Ready Reserve Agreement provides in pertinent part:

 
"I certify that I am immediately available for extended active duty (1) in time of war or National emergency declared by Congress; (2) in a National emergency declared by the President, or (3) when otherwise authorized by law. I understand the Air Force can in the event of partial or full mobilization, order me to enter active military service at any time during the period of this agreement. * * *"

 The Statement of Understanding contained a similar provision which reads as follows:

 
"In connection with my enlistment in the Air Force Reserve and as a Reserve of the Air Force, this date, I understand and agree that:
 
* * *
 
"f. While I am retained as a member of the Ready Reserve, I am subject to voluntary entry into active duty in time of any future emergency proclaimed by the President of the United States or declared by the Congress."

 In an apparent response to the seizure of the Navy ship U.S.S. PUEBLO, the President, on January 25, 1968, issued Executive Order No. 11392, 33 Fed.Reg. 951 (1968), calling to active duty 28 units of the Naval, Air Force and Air National Guard Ready Reserve, one of which was the 904th.

 Executive Order No. 11392 provides in pertinent part:

 
"By virtue of the authority vested in me by paragraph (e) of Title I of the Department of Defense Appropriation Act, 1967 (80 Stat. 981), and as President of the United States, I hereby order the following units of the Ready Reserve of the Naval Reserve, the Air Force Reserve and the Air National Guard of the United States to active duty for a period of not to exceed 24 months:
 
* * *
 
"(17) 904th Military Airlift Group, Air Force Reserve."

 The authority upon which the President relied for the issuance of Executive Order No. 11392, that is, Pub.L. 89-687, § 101(e) (Oct. 15, 1966), 10 U.S.C. § 263 note (e) (Supp.1967), provides as follows:

 
"(e) Notwithstanding any other provision of law, until June 30, 1968, the President may, when he deems it necessary, order to active duty any unit of the Ready Reserve of an armed force for a period of not to exceed twenty-four months."

 Pursuant to the President's Order, the 904th Military Airlift Group, a unit consisting of approximately 900 men, was activated and its members ordered to report to their home station by no later than midnight, January 26, 1968. Complete activation was accomplished on 24 hours' notice effected by telephone or telegraph wire.

 During the period January 26, 1968 through July 13, 1968, the unit was stationed at Stewart Air Force Base and continued to operate as an integrated body. The duties of the unit consisted of maintaining and operating certain military transport aircraft and providing support facilities necessary to the effective fulfillment of its mission. During that period of time, certain of its members were assigned to serve on temporary duty at other Air Force bases located in the continental United States (hereinafter referred to as the "CONUS") or in England.

 On July 13, 1968, approximately 80 members of the 904th were notified to report by 7:00 A.M. on July 15, 1968 for immediate transport to South Korea, this transfer representing a permanent change of their base and unit. *fn2" These men are presently located at bases throughout South Korea.

 At approximately 7:00 P.M. on the evening of July 17, 1968, and thereafter, 225 reservists of the 904th were notified to report to the Stewart Air Force Base before 12:00 M. that evening to receive orders, effective not later than August 31, 1968, permanently reassigning them to bases located both within the CONUS and throughout Southeast Asia.

 Since that time, approximately 100 men of the 904th have been notified that they will be reassigned to other units located at Stewart Air Force Base, pursuant to orders effective August 15, 1968. ...


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