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August 10, 1979

George J. KLOTZBACH, Plaintiff,
Howard H. CALLAWAY, Major General LaVern E. Weber, Major General John C. Baker, Charles J. McClure, Joseph N. Apicella, Herman J. Kuhn, Charles S. Schumacker, Joseph L. Ferreira and Howard P. Nadeau, Defendants

The opinion of the court was delivered by: CURTIN

This is an action attacking the constitutionality of a National Guard regulation requiring technicians to wear a military uniform and conform to grooming requirements. The case was tried by the court sitting without a jury based on stipulated facts and trial record. What follows is the court's findings of fact and conclusions of law made pursuant to Rule 52(a) of the Federal Rules of Civil Procedure.

Briefly stated, the plaintiff was terminated from his position as a National Guard technician after he refused to comply with military grooming standards contained in Pamphlet 690-1, "Standards of Appearance for Male Technicians." This directive was promulgated by the defendant Major General John C. Baker, in his capacity as administrator of technician employees in New York State.

 Plaintiff's original complaint was filed on July 30, 1974. On October 21, 1974, plaintiff moved for preliminary relief to reinstate him as a technician pending a decision in this case on the merits. This request was denied on November 26, 1974. Depositions were then taken of defendants Major General Baker and Charles J. McClure, the technician personnel officer for New York State. The plaintiff moved to amend the complaint to add additional parties and further requested the court to vacate the order denying preliminary relief. On December 19, 1974, the court permitted amendment of the complaint to include additional defendants Howard H. Callaway, Secretary of the Army, and Major General LaVern E. Weber, Chief of the National Guard Bureau. The court denied plaintiff's further application for temporary relief.

 The plaintiff then deposed Major General Weber. Stipulations of fact were prepared and signed on December 24, 1975, and filed with the court on January 6, 1976. In September of 1976, the defendants moved to dismiss and the plaintiff cross-moved for summary judgment. On December 27, 1976, both motions were denied. Thereafter, a number of pretrial meetings were held and on February 12, 1979, the parties filed a stipulation agreeing that the documents already filed with the court, including affidavits, depositions, the administrative record and exhibits, shall be considered the trial record in lieu of testimony. Oral argument was held on March 27, 1979.

 The gist of plaintiff's original claim is contained in P 26 of his amended complaint:

(T)he length and/or style of plaintiff's hair and moustache had no reasonable relation to the requirements of his employment, or the competency or capacity of plaintiff to perform his Civil Service duties. Nor have the defendants any Constitutionally justifiable reason to regulate plaintiff's hair and grooming while plaintiff is employed as a Civilian Federal Technician . . . .

 He alleges in his complaint that his employment was improperly terminated because the hair-length requirements violate his first amendment rights to freedom of expression and his fifth amendment rights to personal liberty and due process. He also raises a procedural due process claim arguing that he was denied a fair hearing by an impartial hearing officer in connection with his suspension. Finally, he claims that the grooming requirements deny equal protection because other categories of technicians are not required to meet these requirements. He seeks various forms of relief including reinstatement, compensatory damages, attorneys' fees, and punitive damages. He also seeks declaratory and injunctive relief. Jurisdiction is alleged under 28 U.S.C. §§ 1331(a), 1361, 2201, and 2202, and 5 U.S.C. § 702.

 The plaintiff was hired as a National Guard technician on May 28, 1972. Employment as a technician is governed by 32 U.S.C. § 709, which provides in pertinent part as follows:

(a) Under regulations prescribed by the Secretary of the Army or the Secretary of the Air Force, as the case may be, and subject to subsection (b) of this section persons may be employed as technicians in
(1) the administration and training of the National Guard; and
(2) the maintenance and repair of supplies issued to the National Guard or the armed forces.
(b) Except as prescribed by the Secretary concerned, a technician employed under subsection (a) shall, while so employed, be a member of the National Guard and hold the military grade specified by the Secretary concerned for that position.
(d) A technician employed under subsection (a) is an employee of the Department of the Army or the Department of the Air Force, as the case may be, and an employee of the United States. However, a position authorized by this section is outside the competitive service if the technician employed therein is required under subsection (b) to be a member of the National Guard.
(e) Notwithstanding any other provision of law and under regulations prescribed by ...

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