Appeal by plaintiffs-appellants, New York Army National Guardsmen, from an order of the United States District Court for the Southern District of New York, Robert J. Ward, Judge, denying their motion for a preliminary injunction and granting the crossmotion of state and federal officials for summary judgment in an action to establish and enforce appellants' alleged right to transfer from the National Guard to the Standby Reserve upon completion of five years' service pursuant to Title 10 U.S.C. § 269(e) (2).
Smith, Hays and Mansfield, Circuit Judges.
MANSFIELD, Circuit Judge:
The central question raised by this appeal is whether certain members of the New York Army National Guard ("the Guard" herein) are entitled, after five years of service in the Guard as part of our country's Ready Reserve, to be transferred to the Standby Reserve (an organization requiring less active participation in military activities than does the Guard) by reason of their having been members of Guard units that were called by the President of the United States to active duty in 1970 pursuant to 10 U.S.C. § 673 to assist the Postmaster General in maintaining postal service during a strike of postal employees. Because appellants were away from their units at the time of the call-up serving on active duty for training, they did not perform any postal duty. Transfer of appellants to the Standby Reserve was refused by the Army on the ground that they had failed to comply with 10 U.S.C. § 269(e)(2),*fn1 which provides that only those who have served on active duty "other than for training" are eligible for such transfer, and 10 U.S.C. § 269(g), which requires consent for the transfer of the governor of the state concerned (in this case the Governor of New York).*fn2
Appellants, in an action instituted in the Southern District of New York against the Secretary of the Army, the Governor of New York and the Commanding General of the Guard, based on 42 U.S.C. § 1983 and 28 U.S.C. §§ 1343 and 1361, sought injunctive relief enforcing their alleged right of transfer, upon completion of five years' service, pursuant to 10 U.S.C. § 269(e) (2). Judge Robert J. Ward, adhering to his earlier decision in a similar case, Mela v. Callaway, 378 F. Supp. 25 (S.D.N.Y. 1974), held that appellants, although actually engaged in training activities at the time of the call-up, qualified for active duty status within the meaning of § 269(e) (2), entitling them to transfer to the Standby Reserve upon consent of the Governor of New York as required by § 269(g). However, he further concluded that although Governor Rockefeller, by Executive Order 39,*fn3 issued on June 10, 1970, had consented to such transfers, appellants were no longer eligible because on July 10, 1974, Governor Wilson, by Executive Order 8,*fn4 modified the earlier order to deny any further transfers of Guardsmen in appellants' position. Accordingly he granted appellees' motion for summary judgment dismissing the complaint. We hold that those appellants who were eligible and had applied for transfer before July 10, 1974, were entitled to transfer to the Standby Reserve. We affirm as to all others. The case is accordingly remanded for further proceedings not inconsistent with this opinion.
This action has its genesis in the postal workers' strike that occurred in New York City in the spring of 1970. On March 23 of that year the President of the United States declared a state of national emergency and directed the Secretary of Defense to call reserves of the armed forces to active duty to assist the Postmaster General in restoring and maintaining postal service. Executive Order 11519, 35 Fed. Reg. 5003 (1970). The call-up, which was designated "Operation Graphic Hand," included members and units of the New York Army and Air National Guard.
In order to fulfill their military obligation members of the Reserve or of the Guard are required to serve a total of six (6) years either on active duty, on active duty for training or in the Reserve component of the United States Armed Forces, 10 U.S.C. § 651. As a result of having performed active duty in Operation Graphic Hand, federal Reservists (members of the Naval, Marine Corps, Army and Air Force Reserves) automatically become eligible after five years' service for transfer to the Standby Reserve for the remainder of their term pursuant to 10 U.S.C. § 269(e) (2). National Guardsmen, however, who are also members of the Ready Reserve, 10 U.S.C. § 269(b), become eligible for such transfer as a result of their being called to active duty only if, in addition, the governor of their state consents to the transfer, 10 U.S.C. § 269(g).
The difference between duty in the Ready Reserve and the Standby Reserve is not insignificant. A person in the Ready Reserve is subject to call-up "in time of national emergency declared by the President" without further act of Congress, 10 U.S.C. §§ 672 and 673. He or she is also liable to call-up for up to two years as an unsatisfactory participant in the Ready Reserve, 10 U.S.C. § 673a(a). Finally, and probably most significant, a Ready Reservist is required to attend 14 days annual field training and at least 48 scheduled drills or training periods each year, 10 U.S.C. § 270. In contrast, a Standby Reservist is subject to call-up only "in time of war or of national emergency declared by Congress," and then only if "the Director of Selective Service determines that the member is available for active duty," 10 U.S.C. § 672(a), and if there are insufficient numbers of Ready Reserve units or personnel available to meet the nation's needs, 10 U.S.C. § 674. Furthermore, the Standby Reservist is not required to attend drills or field training sessions.
Appellants contend that since they were members of units ordered to active duty in Operation Graphic Hand, they must, even though they did not serve with their units after call-up, be deemed to have been on active duty during that Operation for purposes of § 269. They further argue that permission for their transfer was granted by Executive Order 39 and that it could not validly be revoked by Executive Order 8 issued on July 10, 1974, amending Executive Order 39 of Governor Rockefeller.
Consideration of the issues raised by this appeal requires some familiarity with Mela v. Callaway, supra. Mela was an action brought before the issuance of Executive Order 8 by Guardsmen in the same position as appellants herein against the same three defendants (Secretary of the Army, Governor of New York and Commanding General of the Guard) seeking the same relief. In that case Judge Ward held that the plaintiffs there had been on active duty for purposes of § 269(e)(2), that § 269(g) required the Governor's permission for transfer in these circumstances and that Executive Order 39 gave permission for transfer to the Standby Reserve to persons in plaintiffs' position. He concluded that under applicable federal laws and regulations Guardsmen in training when their units are ordered to active duty must for purposes of § 269(e)(2) be deemed to have served as part of their units on active duty.*fn5 He further reasoned that since Order 39 did not distinguish between Guardsmen in such units who served on active duty in Operation Graphic Hand and those who continued on active duty for training after the call-up, and since no attempt was made to define the status of the latter differently from the federal definition, permission had been given by Governor Rockefeller for the transfer of any Guardsman who met the federal specifications of active duty.*fn6 Relief was granted in the form of an order preliminarily enjoining the state from requiring the plaintiffs there (all of whom had completed their fifth year in the Guard) to attend drills and annual field training pending the outcome of the action.
A notice of appeal from the Mela decision was filed, but the appeal was eventually dismissed for non-prosecution.
In light of the district court's interpretation in Mela of the scope of Executive Order 39, the state took steps immediately after the Mela decision to narrow the scope of permission for transfer. On July 10, 1974, Governor Wilson issued Executive Order 8, which amended and superseded Order 39. Consent for members of the Guard to transfer to the Standby Reserve was thereby limited to those who were otherwise qualified and who "actually performed full time duty with their assigned units in the active military service of the United States." The obvious intent was to continue consent for those Guardsmen who had actually helped move the mails to transfer to the Standby Reserve and to deny permission to those in appellants' position who were officially on active duty but had remained in training away from their units.
We need not linger long over defendants' threshold contention that federal courts lack jurisdiction over claims asserted by appellants with respect to their status in the Reserve. Appellants have at least made out a colorable claim of denial of equal protection of the laws in violation of the civil rights statutes, 42 U.S.C. § 1983 and 28 U.S.C. § 1343, which is sufficient to invoke federal jurisdiction over the state defendants, by asserting that the state defendants, as the persons in command of appellants, acted arbitrarily and capriciously in denying transfer to those who applied and were qualified for it before July 10, 1974, and that Order 8 attempts to make an illegal distinction among persons who are equal in the eyes of controlling federal law. See Almenares v. Wyman, 453 F.2d 1075 (2d Cir. 1971), ...