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Kurlan v. Callaway


decided: December 27, 1974.


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.

Author: Mansfield

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), cert. denied, 405 U.S. 944, 30 L. Ed. 2d 815, 92 S. Ct. 962 (1972). As the district court noted, the relief sought against the federal defendant, Secretary of the Army Callaway, is in the nature of mandamus.

Turning to the merits, under Army Regulation AR135-300 para. 2-38(b) Reservists (including members of the Guard) who are on active duty for training at the time when their units are called to active duty are automatically classified as being on active duty status.*fn7 "Active duty" in this context denotes a formal status within the military establishment, which is not dependent on the called-up individual's activities while on such duty, as long as the definition encompasses him. Bell v. United States, 366 U.S. 393, 410, 6 L. Ed. 2d 365, 81 S. Ct. 1230 (1960). In Hornstein v. Laird, 327 F. Supp. 993 (S.D.N.Y. 1971), for instance, Reservists were held to be entitled to transfer under § 269(e)(2) because they had served on active duty status within the definition set out in AR135-300, even though they had been called-up by mistake and immediately sent home upon reporting to their point of assembly. In the present case appellants would at least have been required, upon completion of their training, to join their fellow Guardsmen in handling the mails if the postal strike had lasted beyond their tour of training.

In the absence of any indication that the term "active duty" as used in § 269 differs in meaning from that given in Army Regulation AR135-300, and in view of the opinion of the Army Judge Advocate General's Office that the Regulation defining active duty status applies to § 269, see Exhibit A of the Complaint, we adopt that definition here. Since under this interpretation persons on active duty for training assumed active duty status upon the call-up of their units, they satisfy the requirements of § 269(e)(2) for transfer to the Standby Reserve upon completion of five years' service, provided the Governor of the State of New York consents. This consent was given by Governor Rockefeller in Executive Order 39. We are not persuaded that the term "active duty" as used in that Order was intended to exclude persons in appellants' position. In these circumstances the consent must be interpreted as broadly as the meaning of the terms used in giving it, especially when, as Army Regulation AR135-300 para. 2-38 reveals, those terms had precise meaning in relevant law when the Order was issued.

Finally, we come to the main issue raised by this appeal -- the scope and effectiveness of Executive Order 8, which purported to modify the Governor's prior consent by limiting it to those who actually performed full time duty with their assigned units and making it inapplicable to those absent on active duty for training. In considering Order 8 we must, of course, give deference to the general rule that federal courts will not normally review purely discretionary decisions by military officials which are within their valid jurisdiction. E.g., Gilligan v. Morgan, 413 U.S. 1, 37 L. Ed. 2d 407, 93 S. Ct. 2440 (1973); Smith v. Resor, 406 F.2d 141, 145 (2d Cir. 1969); United States ex rel. Schonbrun v. Commanding Officer, Armed Forces, 403 F.2d 371 (2d Cir. 1968), cert. denied, 394 U.S. 929, 22 L. Ed. 2d 460, 89 S. Ct. 1195 (1969). However, the military is not free to disregard its own regulations or federal statutes. Where military agencies have established their own procedures and regulations, we have acted to insure that they are followed. See Smith v. Resor, supra ; Hammond v. Lenfest, 398 F.2d 705, 710 (2d Cir. 1968). Further, in rare cases a federal court may overturn a discretionary military decision if it is "so arbitrary and irrational that it cannot stand." Feliciano v. Laird, 426 F.2d 424, 427 (2d Cir. 1970).

Defendant state officials argue that the Governor's decision, expressed in Order 8, to deny permission to persons in appellants' position to transfer to the Standby Reserve falls within the area of military discretion and thus cannot be reviewed by this Court except in the two limited circumstances noted above. We need not reach that question, however, because we find that the denial of permission was reasonably based and the Order therefore survives the review which the state defendants seek to avoid.

The Governor was free to change the manner in which he exercised the discretion vested in him by § 269(g). Cf., e.g., Securities and Exchange Commission v. Chenery Corp., 332 U.S. 194, 202-03, 91 L. Ed. 1995, 67 S. Ct. 1575 (1947). In this instance his action was apparently based on the difference in hardship and in disruption of civilian life suffered by Guardsmen already in training as compared to those suddenly called-up to help move the mails. Persons already on active duty for training were unlikely to suffer hardship as a result of the call-up because they were serving in the military full time and were not required to be uprooted. In contrast, those persons called-up from civilian life were in all likelihood required to arrange to leave their jobs and families on extremely short notice and remain away for an indefinite period of time, with probable loss of pay from their civilian jobs. During their tour of active duty, furthermore, their families were left without a vital member. A distinction based on these differences in hardship is clearly within the discretion vested in the Governor by § 269(g). Furthermore, it bears a reasonable relationship to a legitimate state objective, i.e., relief for those who have suffered hardship in the state military forces, and it does not violate equal protection guarantees. Cf. United States ex rel. Murray v. Owens, 465 F.2d 289, 294 (2d Cir. 1972), cert. denied, 409 U.S. 1117, 34 L. Ed. 2d 701, 93 S. Ct. 930 (1973).

In opposition to the distinction made by Order 8 appellants argue that the Governor has unlawfully re-defined their active duty status, in effect determining that they were not on active duty for his purposes. As active duty is a federally defined status, see Bell v. United States, supra, 366 U.S. at 410, appellants urge that Order 8 amounts to an impermissible denial of controlling federal law. We disagree. The Governor's Order simply makes a rational distinction between two classes of persons already on active duty status, based on the character of their respective service. Such a distinction does not adversely affect the federal definition of active duty.

Although we generally uphold the validity of Order 8, it may not be applied to deny transfer to all appellants. Under § 269(e)(2) National Guardsmen satisfying the requirements of that section who applied for transfer to the Standby Reserve while Order 39 was in force were entitled to have their applications granted, without any right on the part of the defendants to refuse, since the applicants had satisfied all statutory requirements for transfer. See Hornstein v. Laird, supra. Whatever discretion existed in the Governor under § 269(g) had been exercised in favor of such applicants. All that remained was the ministerial act of processing the papers. Order 8 is not retroactive. Although the administrative processing of some earlier applications might not have been completed until after Order 8 went into effect the transfers were for all practical purposes completed prior to the effective date of that Order. The necessary paper work to complete applications then pending is not a prerequisite to the granting of the transfers under the law. It is simply an administrative detail, the completion of which this Court may order if it is not accomplished voluntarily. Chapman v. El Paso Natural Gas Co., 92 U.S. App. D.C. 154, 204 F.2d 46, 54 (1953). Otherwise the state defendants could take advantage of their previous illegal refusal to transfer Guardsmen, which would completely nullify any court order requiring transfer based on a general grant of permission such as was issued in Mela. Accordingly we hold that appellants who qualified for transfer under § 269(e)(2) before July 10, 1974, and who applied for such transfer before that date, are entitled to transfer. However, since Order 39 was effective only as to those qualified Guardsmen who applied while it was in force, those who failed to apply before it was effectively modified by Order 8 were not entitled to transfer. The stay issued by us on October 17, 1974, is therefore terminated as to appellants who did not apply for transfer until after the date when Order 8 became effective.

The district court's decision is affirmed in part and reversed in part and the case is remanded to the district court for further proceedings not inconsistent with this opinion.


Affirmed in part, reversed in part and remanded.

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