Mansfield and Timbers, Circuit Judges, and Gurfein, District Judge.*fn*
This is a strange case in which both parties have failed to look to our docket, and in consequence have briefed the matter both here and below on an assumption that is directly contrary to the fact of record. To understand this mutual error and its application to the appeal a brief recital of the facts will be in order.
Appellant, Lee T. Lovallo, was ordered to be recalled to active duty by the Army. He brought a petition for mandamus against the Secretary of the Army to enjoin the order upon the ground that his enlistment has expired and that the appellee's order is without authority in law. On cross motions for summary judgment, Judge Curtin of the Western District granted summary judgment dismissing the petition, 346 F. Supp. 1037. This appeal was taken from that order.
Appellant enlisted in the Regular Army on December 10, 1968 on a contract for a three year enlistment with an initial assignment option for the 26th Army Band at Fort Wadsworth, New York, after which he was to be available for reserve duty for another three years.*fn1 Lee Lovallo first came to the attention of this Court in Cortright v. Resor, 447 F.2d 245, 248 n. 2 (2 Cir. 1971), cert. denied, 405 U.S. 965, 92 S. Ct. 1172, 31 L. Ed. 2d 240, as a member of the 26th Army Band, Fort Wadsworth, New York. That Band engaged in a peace demonstration on July 4, 1970, as a consequence of which some of its members were transferred to other bands. Cortright was transferred to another safe berth in the United States, 447 F.2d at 253, n. 10. Lovallo was scheduled for assignment to Korea by notice dated August 5, 1970. On September 18, 1970 he filed an application for discharge as a conscientious objector. When the Army's Conscientious Objector Review Board denied his discharge Lovallo brought a petition for a writ of habeas corpus in the District Court for the Eastern District of New York. The Court (Weinstein, J.) granted the writ and ordered the petitioner discharged. The District Court granted a stay, however, pending application for a stay in this Court. On motion of the Government made on February 5, 1971 this Court granted a stay pending appeal, and further ordered "that appellee is to remain on leave status." Appellee was also ordered to file his brief before March 8, 1971 and the argument was set for the latter part of that week.
When the Judge Advocate General's office heard that the United States Attorney for the Eastern District of New York had applied for and obtained a stay, it notified him that this was contrary to Army policy, primarily because it involved an early briefing schedule and argument and did not allow enough time for the Solicitor General to consider the merit of an appeal. It, therefore, requested the United States Attorney to move to vacate the stay which he had himself obtained from this Court. The United States Attorney, in accordance with these instructions, moved on February 26, 1971 to vacate the stay and to extend the time for filing the Government's brief.*fn2
Both sides, in their presentation before Judge Curtin below and in their briefs and argument here, have assumed that the Government's motion to vacate the stay was thereupon granted by this Court. Judge Curtin, on the basis of what the parties presented, found that "upon application of the government, without notice to the petitioner, the stay was vacated by the Court of Appeals on or about February 12, 1971."*fn3
On this appeal, appellant's brief states: "Thereafter, the Army moved to dissolve the stay and on March 1, Lovallo submitted an affidavit in opposition to that stay [sic]. The Court of Appeals dissolved that stay on or about March 5, 1971." The Government's brief on this appeal recites that "upon application of the Government the stay was vacated by this Court shortly after 12 February 1971."
The vagueness of the language used by both parties with respect to a decision of this Court allegedly made "on or about March 5, 1971" and "shortly after 12 February 1971" intrigued us. We, accordingly, reviewed the docket and file in this Court and learned the following.
The Government's motion of February 26 to vacate the stay and to extend its time to file a brief came before Judge Hays. He granted the extension of time, but he referred the motion to vacate the stay to the original panel which had granted the stay. The motion, it appears, was on notice, and Lovallo filed an affidavit by his attorney dated March 1, 1971 objecting to "an extension" of the stay (which he apparently thought the Government was seeking).*fn4 The reason given for opposing delay, presumably of the argument of the appeal, was that it was unfair in that "he must disclose to any prospective employer the fact that he is still technically a member of the military and might be called upon to return to active duty at any moment." The original panel of this Court thereafter, on March 23, 1971, denied the Government's motion of February 26, 1971 to vacate the stay. The Court, on May 24, 1971, ultimately reversed the District Court, Lovallo v. Resor, 443 F.2d 1262 (2 Cir. 1971), and simply ordered the petition dismissed on the ground that there was a "basis in fact" for a determination of insincerity. No further order was given to the Army with respect to Lovallo's status.
On February 23, 1971, the Army, erroneously assuming that the stay would be vacated at its request, jumped the gun and ordered Lovallo "released from the custody and control of the Army" without granting him a discharge. He was actually released on March 9, 1971.*fn5 This was contrary to the outstanding order of this Court that he was to "remain on leave status." The Army relied for its action on Army Regulation 635-200, paragraph 5-12 "and the order of the U.S. District Court for the Eastern District." The relevant portion of the Army Regulation provides:
"5-12. Lack of jurisdiction. The discharge or release of an individual from the Army may be ordered by a U.S. Court or judge thereof. The officer upon whom such an order or writ is served will report immediately to the Judge Advocate General . . . who will take appropriate action to direct the discharge, release from active service, or release from military control of the individual concerned."
Lovallo thus found himself out of the Army, "released from military control," though without being released from active military service or discharged to reserve status. He knew that he had lost the appeal by May 24, 1971 but he took no step to find out what his status was. Nor did he file a petition for a writ of certiorari in the Supreme Court. He simply waited for orders. The Army, for its part, allowed time to march on. It did nothing overt until December 9, 1971, more than six months after it had won the appeal and more than three months after the time to apply for a writ of certiorari had expired. The Army then issued a special order (S.O.250) on December 10, 1971, directing Lovallo to report to Fort Dix on December 17, 1971, and providing that "in computing [petitioner's] period of service the period from 9 March 1971 to 16 December 1971 will be excluded."
If Lovallo's three year enlistment is computed on a calendar basis his three year term expired December 9, 1971 -- the day before the order was issued. He contends that he can, therefore, no longer be called to active duty. The Army contends that Lovallo's contract of enlistment was for a period of three years and that, having served only two ...