Appeal from an order of the Southern District of New York (Goettel, D.J.), denying the motion of appellant, a medical doctor, for a preliminary injunction to prevent the Army from ordering him to active duty. The Court of Appeals held: (1) the Army's denial of appellant's request for an exemption from the active duty requirement on the basis of community hardship was a decision within the discretion of the Army and therefore ordinarily unreviewable by the courts; and (2) the denial of request for a delay, if not also a decision within the discretion of the Army and unreviewable, was properly denied under the applicable Army regulation.
Feinberg, Gurfein and Van Graafeiland, Circuit Judges.
This is an appeal from an order of the Southern District of New York (Goettel, D.J.) denying appellant's motion for a preliminary injunction to prevent the Army from ordering him to active duty.
Joseph Ornato enlisted in the Armed Forces Physicians Appointment and Residency Program, known as the "Berry Plan".*fn1 He was commissioned a first lieutenant in the United States Army Reserve in November 1971 after graduating from medical school. He is now a Captain. He was granted a four-year deferment to complete his post-graduate medical training.*fn2 He agreed to serve on active duty for two years upon expiration of the delay period.*fn3
When June 30, 1976 rolled around he had completed a two-year residency in internal medicine and a two-year residency in cardiology. But he had also achieved a unique position in the medical life of the New York City community. He had become Director of the paramedic program at New York Hospital-Cornell University Medical Center in Manhattan, one of the largest hospitals in the City of New York. Dr. Ornato had developed a functioning paramedic program which involves a team of paramedics organized as a 24 hour emergency rescue team able to dispense on-the-scene specialized treatment to severely injured persons and cardiac arrest victims. In Manhattan this service is performed only by the New York Hospital and, by the attestation of that hospital, it is "a vital service to the community which has life and death implications since on-the-scene assistance to cardiac and seriously injured persons can mean the difference between their survival or death."
These paramedic teams with specialized training respond within a very few minutes to cardiac and other emergencies and can be summoned by the general public as well as physicians. The paramedic can render emergency treatment on the scene, including defibrillation. Critically ill patients can be transported by ambulance, helicopter, or with a specially outfitted "shock" van containing devices for respiratory and mechanical circulatory assistance. At the scene or during transport, the paramedics are in radio communication through sophisticated radio-telemetry with the hospital, specifically with Dr. Ornato who personally directs the therapy rendered by the paramedics by radio.
Accordingly, Dr. Ornato and the New York Hospital both requested his exemption from active duty based upon community hardship, or in lieu thereof, a further delay. With regard to the request for exemption as well as delay,*fn4 Department of Defense Instruction 1205.1 reads:
"Upon receipt of active duty orders any reserve officer and/or his employer may submit a request for a delay in entrance on active duty and/or exemption from active duty to a board authorized by the military department concerned to consider such cases. If such action results in disapproval, when the request is based on alleged community essentiality or hardship, the officer and/or his employer may submit an appeal to a higher authority within the military department concerned for final determination of the matter."
In its implementation of the Instruction, the Army sets no standards for the granting of exemption, but sets standards for the granting of delay as shown in the margin.*fn5
On June 4, 1976 an Army Delay and Exemption Board denied the application, finding that Ornato was not essential to his community, for the following reasons:
"1) Other cardiologists in the New York metropolitan area could have been and could be trained to fill Dr. Ornato's positions. 2) Therefore, whether or not other persons are willing to assume those posts and whether or not the community wishes to allocate the funds necessary to attract and train a replacement are matters of the internal traits and policies of the New York metropolitan area generally and Manhattan specifically. 3) Consequently, Dr. Ornato can be replaced and other persons can perform his services within the terms of paragraph 2-19a, AR 601-25."*fn6
The decision was not a balancing of Army need against community need. It was simply a decision that Dr. Ornato was ...