The opinion of the court was delivered by: TENNEY
This case is before the Court on plaintiff's motion for summary judgment, Fed.R.Civ.P. 56, and defendants' motion to dismiss the complaint for failure to state a claim upon which relief can be granted and for lack of subject matter jurisdiction. Fed.R.Civ.P. 12(b)(1) and (6).
As factual background, plaintiff, Eric Harris, is a man who within the spirit of the times has chosen to wear his hair long. He claims that he wears his hair in this fashion as a measure of his personal privacy and liberty, to facilitate the exercise of his right to freedom of association, to express certain political and cultural opinions and to protest certain mores, standards and conditions in today's society. While normally the length of plaintiff's hair would be a matter of personal choice and would present no particular problem, he has a dual role as a civilian and as a part-time soldier in the Army Reserves and the Army has taken objection to the length of plaintiff's hair. Specifically, plaintiff is a member in good standing of the 77th United States Army and other than time spent in summer camp, spends only approximately 2 1/4% of his time as a soldier. In his complaint, plaintiff alleges that pursuant to Army Regulation 600-20 (AR600-20), in or about December 1970, he was expelled from an Army Reserve drill solely for the reason that he wore a short-haired wig, and that as a result of that expulsion he was charged with not having satisfactorily participated in that drill and was denied his pay for the meeting. Plaintiff further alleges that if he is charged with five such failures to satisfactorily participate, he is subject to being ordered to active duty for a period in excess of 18 months pursuant to AR135-91, and that since he is now earning in excess of $18,000 per year, such induction would cost him more than $10,000. Plaintiff contends that AR600-20 is invalid and unenforceable by defendants in that the regulation is in excess of defendants' statutory authority and unnecessarily infringes upon plaintiff's constitutionally protected right to wear his hair in any manner he chooses. Jurisdiction is based upon 28 U.S.C. §§ 1331, 1346(a)(2), 1361 and 5 U.S.C. §§ 701-04.
Defendants are various officials of the U.S. Army and each has been sued in his official capacity.
Before turning to the motions, it is necessary to set out the statutory and regulatory framework underlying this action. Section 673a of Title 10 of the United States Code authorizes the President to order to active duty any member of the reserves who is not "participating satisfactorily" in his unit. Section 456 of Title 50 U.S.C. App. further provides that members of reserve units are exempt from induction as long as they are satisfactorily participating in their reserve units. Army Regulation 135-91, issued pursuant to the above authority provides that a member is not satisfactorily participating "unless he is in the prescribed uniform, presents a neat and soldierly appearance, and performs his assigned duties in a satisfactory manner as determined by the unit commander." AR 135-91(5)(d)(2). Failure to participate satisfactorily leads to loss of attendance credit and five unexcused absences subjects a member to possible induction to active duty. Finally, the challenged regulation, AR600-20, provides in part:
"31. Appearance and Conduct
(6) The wear of a wig or hair piece by male personnel, while in uniform or on duty, is forbidden except under the following circumstances:
a. For cosmetic reasons to cover natural baldness.
b. When appropriate to cover physical disfiguration caused by accident or medical procedure.
c. When wig or hair piece is worn as indicated above it will conform to the standard hair criteria as stated."
Defendants concede the regulation applies to reservists.
Defendants have moved to dismiss the complaint for failure to state a claim upon which relief can be granted, and for the purposes of this motion, all of the allegations in the complaint must be accepted as true. Defendants in support of their motion rely upon several decisions in this and other circuits which hold that what constitutes a neat and soldierly appearance is a matter within the discretion of the Army and that absent extraordinary circumstances, discretionary acts of the Army are not reviewable by the courts. Anderson v. Laird, 437 F.2d 912 (7th Cir. 1971); Gianatasio v. Whyte, 426 F.2d 908 (2d Cir. 1970), cert. denied, 400 U.S. 941, 91 S. Ct. 234, 27 L. Ed. 2d 244 (1970); Byrne v. Resor, 412 F.2d 774 (3d Cir. 1969); Raderman v. Kaine, 411 F.2d 1102 (2d Cir.), cert. dismissed, 396 U.S. 976, 90 S. Ct. 467, 24 L. Ed. 2d 447 (1969); Smith v. Resor, 406 F.2d 141 (2d Cir. 1969). Unlike these cases, however, plaintiff does not ask the Court to determine what constitutes a neat and soldierly appearance or to grant him an exception to the standard.
Rather, plaintiff contends that defendants have exceeded their statutory authority and unnecessarily infringed upon his constitutionally protected rights by prohibiting his wearing of a short-hair wig at drill meetings. Clearly, then the Court is faced with an alleged set of extraordinary circumstances to which the Court of Appeals has made reference. E.g., Raderman ...