# Fox v. Brown

> Court of Appeals for the Second Circuit · October 21, 1968 · 402 F.2d 837

URL: https://www.frixlaw.com/law-library/cases/8879670

## Case

- **Full name:** Thomas F. FOX v. Harold BROWN, Secretary of the United States Air Force, and A. C. O'Hara, Major General NYARNG, Chief of Staff to the Governor of New York
- **Court:** Court of Appeals for the Second Circuit
- **Decided:** October 21, 1968
- **Citations:** 402 F.2d 837
- **Precedential status:** Published
- **Opinion:** Concurrence by Lumbard
- **Judges:** Lumbard, Smith
- **Cited by:** 36 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/8879670

## Opinion text

LUMBARD, Chief Judge
(concurring) :
I concur. We have already specifically ruled that an activation order under 10 U.S.C. § 673a for failure to comply with attendance requirements in the reserves may only be reviewed to the extent of determining whether the military has acted within its jurisdiction under valid law. Winters v. United States, 281 F.Supp. 289 (E.D.N.Y.), aff’d 390 F.2d 879 (2 Cir. 1968). Therefore Fox’s constitutional challenge to his activation is properly before us.
Fox argues that at the time he signed up with the reserves the punishment for *842 missing drills was at most recall to active duty for forty-five days, and that the subsequent passage of 10 U.S.C. § 673a, which extended the maximum period of activation in such a case to two years, was a unilateral modification of his enlistment contract that deprived him of liberty without due process of law.
What this argument overlooks is that at the time Fox enlisted, activation for forty-five days was only one of two punishments prescribed for those who failed to fulfill their reserve obligations. The other was induction into the Army for two years on a priority basis. 50 U.SC. App. § 456(c) (2) (D).
The new legislation therefore did not impose any new substantive burdens on Fox, and any minor changes in his contract which it did effect are clearly within the power of Congress to provide for the administration of the Armed Forces.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/8879670. Public record. Not legal advice.