Petition — Schlanger v. United States

if preme Court, U.S.

| r Le . ]

* FEB 18 1979

Remon)" IP. CLERK

IN THE

Supreme Court of the Anited States

OCTOBER TERM, 1978

No. 78-1258

HERBERT PHILLIP SCHLANGER,

Petitioner,

UNITED STATES OF AMERICA, ET AL.,

Respondents.

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

HERBERT PHILLIP SCHLANGER

3300 First National Bank Building

Atlanta, Georgia 30303

(404) 581-8000

Counsel for Petitioner

Washington. D.C. e CLB PUBLISHERS e LAW PRINTING CO. e (202) 393-0625

INDEX

Page

Ne Te nn wa cneeeseces 2

ss sc odescccccsccass 2

QUESTIONS PRESENTED ....................00ee00e 2

Nee TN ns eecccecccse 3

Suen Ge Bem CASE......................... 3

REASONS FOR GRANTING THE WRIT.............. 6

eo vsccveccccccccces 11

Appendix

os eine e ce bescccccocces la

IN THE

Supreme Court of the Anited States

OCTOBER TERM, 1978

NO.

HERBERT PHILLIP SCHLANGER,

Petitioner,

UNITED STATES OF AMERICA, ET AL.,

Respondents.

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

Herbert Phillip Schlanger respectfully requests that a writ

of certiorari issue to review the judgment of the United States

Court of Appeals for the Ninth Circuit, entered in the abov'e-

entitled case on September 11, 1978.!

‘In addition to the United States, the other defendants below and

respondents here are various individual officers of the United States and

of the United States Air Force: the Secretary of the Air Force; Hon.

Robert C. Seamans, Jr., Secretary of the Air Force (1969-1973); the

Chief of Staff, U. S. Air Force; General John D. Ryan, Chief of Staff,

USAF (1969-1973); General John P. McConnell, Chief of Staff,

USAF (1965-1969); Major General Ernest Pinson, USAF, Com-

mandant, Air Force Institute of Technology (AFIT); Colonel Miles

Palmer, USAF, Director, Civilian Institutions Divisions, AFIT;

(continued )

2

OPINIONS BELOW

The order of the district court is unreported and is printed

in Appendix B hereto, at page 1b. The opinion of the Court of

Appeals has not been published and is printed in Appendix B

at page 3b. The Order of the Court of Appeals denying

rehearing is printed in Appendix B at page 14b.

JURISDICTION

The judgment of the Court of Appeals was entered on

September 11, 1978. A timely petition for rehearing or

rehearing en banc was denied on November 15, 1978.

Jurisdiction of this Court is invoked pursuant to 28 U.S.C.

§1254(1).

QUESTIONS PRESENTED

I

May an appeal be decided by a panel which does not have

a quorum of judges who constitute the Court of Appeals?

(footnote continued from preceding page)

Colonel Homer Baker, Commander, Moody AFB, Georgia (1968-

1971); Lt. Col. Thomas Sawyer, Commander, 57th Fighter Interceptor

Squadron, Keflavik NS, Iceland (1971); Major John Halley, Assistant

Professor of Aerospace Studies, Arizona State University (1968),

Major Robert Eatinger, AFIT Liaison Officer, Arizona State University

(1968); Captain James Miner, AFIT Team Chief, Arizona State

University (1967-1968).

3

I

May a court grant relief to an ex-serviceman whose

enlistment contract was breached by the military during his

term of service, where that breach resulted in (1) his military

career being destroyed; (2) his being held to service un-

lawfully for over three years; (3) his military records having

included in them inaccurate, highly prejudicial statements; _

and (4) his being precluded ever from holding a commission

under the United States?

STATUTES INVOLVED

The statutory provisions involved in resolution of

Question I are 28 U.S.C. §43, 28 U.S.C. §1291 and 28

U.S.C. §1294. Those involved in resolution of Question II

are 28 U.S.C. §1331;5 U.S.C. §§ 701-704; and, 28 U.S.C.

§ 1346. They are printed in Appendix A.

STATEMENT OF THE CASE

(This statement is taken verbatim from the

Court of Appeals’ opinion. Bracketed ma-

terial has veen inserted by petitioner. )

In December 1962, Herbert Schlanger enlisted in the

United States Air Force (USAF) for a period of 4 years and

began his service. In 1965, Schlanger applied for entrance

into the Airman’s Education and Commissioning Program

(AECP), a USAF program providing [for carefully

screened, career-minded airmen (R. 178)] undergraduate

4

education and officer training leading to an officer's com-

mission. After the USAF accepted Schlanger into the

AECP, it arranged his admission into and assigned him for

AECP participation at Arizona State University (ASU). As

part of the program, Schlanger received a discharge on

December 8, 1966 and reenlisted [as required for participa-

tion in the AECP (Complaint, Js 7-9, R.3,4; Ex.36, p.5,

R.180)], on December 9, 1966, for a period of 6 years.

In January 1966, Schlanger enrolled in his courses at

ASU under the auspices of the Air Force Institute of

Technology (AFIT), projected, with his AFIT advisers, a

graduation date of June 1968, and began his studies. During

the fall of 1967, Schlanger became ill and received several

grades of “incomplete” and had to revise his projected

graduation date to August, 1968.

In early 1968, Schlanger became actively involved in an

organization known as the Arizona State University Civil

Rights Board. This group focused its efforts primarily, at that

time, on correcting perceived racial discrimination in

housing in that area and received considerable local publicity

regarding its efforts during March of 1968.

On April 2, 1968, an AFIT liaison officer at ASU

summoned Schlanger to appear before him at a

“counselling” session. While USAF contends that the

conference related to Schlanger’s absences from his classes

and failure to remove his incompletes, Schlanger contends

that the officer denounced Schlanger’s civil rights activities,

told him such activities were inappropriate for an officer

trainee, and informed him he was “getting in with bad

groups.” [Schlanger was threatened with removal from the

AECP if he did not cease his civil rights activities.

(Complaint J 25, R.6)]

5

On June 14, 1968, by letter, Schlanger was notified of his

removal from AECP for demonstrating a “‘lack of officer

potential.” Schlanger sought clarification of this removal

and eventually was informed that his absences from classes

were the key factor in demonstrating his lack of officer

potential. USAF officers denied Schlanger’s subsequent

requests to see the Report of Inquiry which had been

prepared on the matter and also denied his requests for a

hearing.

Soon thereafter, USAF reassigned Schlanger to a post in

Georgia [and demoted him two grades (Complaint ] 41,

R.8)] and later sent him to a post in Iceland. Schlanger’s

requests for a [hearing, (R.152-155)] discharge or rein-

statement in AECP were denied at all levels of USAF

authority. Eventually, USAF permitted Schlanger to return

to ASU to complete his undergraduate studies at his own

expense. He did so in 1969 and then began litigation seeking

his discharge. [See, e.g., Schlanger v. Seamans, 401 U.S.

487 (1971).] After various legal proceedings, the USAF, in

[December, 1971], discharged Schlanger, about 6 months

before the expiration of his scheduled term of service and

about 1 week before a scheduled oral argument before the

Court of Appeals for the District of Columbia Circuit.

Schlanger then filed the complaint which is the subject of

this appeal. In this complaint, filed in the District of Arizona,

Schlanger [made] six claims for relief: (1) his removal from

the AECP violated various of his constitutional rights [and

various USAF regulations]; (2) the defendants induced a

breach of his reenlistment contract; (3) the defendants

breached his reenlistment contract; (4) the defendants

unlawfully detained, arrested, and restrained him in Ari-

zona; (5) the defendants unlawfully detained, arrested, and

6

restrained him in Georgia; and (6) the defendants unlawfully

detained, arrested, and restrained him in Iceland, The

complaint names the United States, the Secretary of the Air

Force, the Chief of Staff, and various officers of the USAF

and AFIT as defendants.

** *

On November 5, 1973, the District Court, Hon. Carl A.

Muecke presiding, dismissed the complaint as res judicata.

On January 5, 1975, however, this Court [of Appeals], in a

brief, two-paragraph per curiam memorandum “‘remanded”’

the case to the District Court.

The District Court then, on March 12, 1976, granted the

defendants’ motion to dismiss the complaint. In his written

order of dismissal, the District Court Judge. . . found that the

complaint failed to state a claim because federal courts lack

jurisdiction to review internal military matters. [On appeal, a

panel consisting of Judge Trask, Senior Judge Kelkenny and

District Judge Hauk stated that] “because we agree with the

District Court that the complaint fails to state a claim upon

which relief could be granted, we affirm the District Court on

that basis... .”

REASONS FOR GRANTING THE WRIT

1. The panel which decided this case was im-

properly constituted.

The practice of permitting an appeal to be decided by a

panel consisting of less than a quorum of judges who

constitute the Court of Appeals raises serious questions of

judicial administration and statutory construction. These

7

questions have not been, but should be, addressed and

resolved by this Court.

An appellant has a right to appeal the judgment of a district

court to the Court of Appeals for that circuit. 28 U.S.C.

§ §1291, 1294. The Court of Appeals “consist{s] of the

circuit judges of the circuit in regular active service.” 28

U.S.C. §43(b). It is not disputed that a district court judge or

a senior judge is “also competent to sit” when properly

designated or assigned, 28 U.S.C. §43(b). The question

presented arises only when, as in this case, more than one

judge of a three-judge panel is so designated or assigned. For

instance, when circuit judges in regular active service are

available, could a Court of Appeals order that an appeal be

heard by three district judges sitting by designation? It is

doubtful. Where, then, must the line be drawn? Petitioner

submits that it is both rational and reasonable to require,

consistent with the language and tenor of the statutes, that no

panel of a Court of Appeals may have more than one judge

who is not in regular active service. If this is true, then the

judgment below was rendered by a panel improperly con-

stituted and this case must be remanded to the Court of

Appeals.

2. The decision below creates a conflict between

the circuits.

The decision rendered in this case on September 1 1, 1978,

creates a conflict between the circuits concerning standards

to be applied in determining when courts may review of

actions taken by military authorities. It is undisputed at this

stage of litigation that Mr. Schlanger had his military career

destroyed and his reenlistment contract breached by acts of

8

U.S. Air Force authorities. These acts were accomplished in

violation of Air Force regulations, without prior notice or

hearing and were purportedly based on information un-

covered during a clandestine inquiry the report of which Mr.

Schlanger was not permitted to see.

Mr. Schlanger has not asked the courts to substitute their

judgment for that of the military as to whether Mr. Schlanger

should properly have been permitted to become an officer.

Mr. Schlanger asks only a review of the procedure employed

in reaching and implementing that determination to see

whether those procedures comport with due process re-

quirements and whether they were conducted in accordance

with applicable regulations. These a court may properly

review.

The decision of the panel below puts the Ninth Circuit

squarely in conflict with the Fifth Circuit on this issue. The

Fifth Circuit, in its well-reasoned, analytical opinion in

Mindes v. Seamans, 435 F.2d 197 (5 Cir. 1971), set forth a

four-factor balancing test to be applied in deciding whether to

review an internal military decision: (1) the nature and

strength of the plaintiff's challenge to the military decision;

(2) the potential injury to the plaintiff is review is refused;

(3) the type and degree of anticipated interference with the

military function; and (4) the extent to which the exercise of

military expertise or discretion is involved. 453 F.2d at 201.

The panel in this case, after stating the Mindes criteria,

ignored the approach taken by the Fifth Circuit and flatly

held that, in the Ninth Circuit, courts should not and are

without jurisdiction to review that of which Mr. Schlanger |

complains.? Thus the Ninth Circuit has adopted a

?The panel first concluded, without benefit of any factual findings that

Mr. Schlanger’s injury was de minimus and that, therefore, one of the

four factors was weighted against review. It rested its decision, however,

(continued )

9

formalistic, restrictive view of the scope of review, whereas

the Fifth Circuit has adopted a rational, analytical approach.

These views cannot be reconciled except by this Court.

3. The panel improperly made findings of fact.

This case calls for the exercise by this Court of its

supervisory powers over the Court of Appeals. The panel

which decided this case made findings of fact in order to

support its decision.* A Court of Appeals may not make

independent findings of fact, particularly when those findings

are devoid of support in the record and especially when it is

construing a complaint to determine whether it states a claim

upon which relief can be granted. This Court should grant

certiorari to correct this clearly erroneous exercise of power

by the Court of Appeals and to insure tha‘ the lower Court

confine itself to the proper exercise of its jurisdiction.

4. This case involves a principle of public importance.

This case involves an issue of substantial public im-

portance which needs to be addressed by this Court. There is

no longer a military draft in the United States. All members

of the armed forces now serve under contracts of enlistment.

(footnote continued from preceding page)

on “a simpler and perhaps sounder” line of cases in the Ninth Circuit.

Appendix B, page 11b. It never undertook the examination and

balancing which the Fifth Circuit requires.

*(T]his plaintiff's alleged injury . . . is indeed so slight as to be

negligible. . .” and “the military decision to remove him from the AECP

does not subject him to consequences as serious as those to which the

plaintiff in Denton was allegedly subject.’ Appendix B at pages 1 1 b and

13b.

10

The decision of the Ninth Circuit in this case allows the

military to promise an enlistee anything and then, once the

enlistee takes his oath, renege without fear of judicial

intevention, review or correction.‘ It is, therefore, desirable

for this Court to undertake a definition of the duties and

obligations of the military under a contract of enlistment.

Is it true, as the Attorney General opined, that

“[e]nlistments into the Army made under the inducements

held out by the laws of the United States are contracts and

although the government be a party, still the contracts ought

to be construed according to those well-established princi-

ples which regulate contracts geneally,” 6 Op. Att.Gen.187?

If not, by what standards is such a contract judged? With over

1,000,000 of these contracts in force, many entered into as a

result of offered inducements, a pronouncement on the

subject by this Court would be timely.

This case is one well-suited for such a determination since,

in its present posture, it stands uncontroverted that: (1) Mr.

Schlanger’s reenlistment was predicated upon his partici-

pation in and was undertaken as part of and in reliance upon

his entrance into the AECP; (2) he was removed from the

AECP in violation of USAF regulations and in violation of

his right to due process; (3) that the removal (if in fact

improper) constituted a material breach of his reenlistment

contract, and (4) that he was, as a result of his removal,

demoted and held to service for over three additional years in

an enlisted status. Suck. a factually “clean” record permits

this Court to speak directly to this important issue.

‘The Ninth Circuit, faced with the uncontroverted allegation that the

enlistment contract had been breached, never addressed the issue of

contractual relations. It held; sub silentio, that rights and duties under

enlistment contracts mav not be enforced by the enlistee in court.

1]

CONCLUSION

For all the foregoing reasons, this petition for.a writ of

certiorari should be granted.

Respectfully submitted,

HERBERT PHILLIP SCHLANGER

3300 First National Bank Tower

Atlanta, Georgia 30303

(404) 581-8000

Counsel for Petitioner

February 1979

APPENDIX A

STATUTES

28 U.S.C. §43. Creation and composition of courts

(a) There shall be in each circuit a court of appeals, which

shall be a court of record, known as the United States Court

of Appeals for the circuit.

(b) Each court of appeals shall consist of the circuit judges

of the circuit in regular active service. The circuit justice and

justices or judges designated or assigned shall also be

competent to sit as judges of the court.

28 U.S.C. §1291. Final decisions of district courts

The court of appeals shall have jurisdiction of appeals

from all final decisions of the district courts of the United

States, the United States District Court for the District of the

Canal Zone, the District Court of Guam, and the District

Court of the virgin Islands, except where a direct review may

be had in the Supreme Court.

28 U.S.C. §1294. Circuits in which decisions re-

viewable

Appeals from reviewable decisions of the district and

territorial courts shall be taken to the courts of appeals as

follows:

(1) From a district court of the United States to the court

of appeals for the circuit embracing the district;

(2) From the United States District Court for the District

of the Canal Zone, to the Court of Appeals for the Fifth

Circuit;

(3) From the District Court of the Virgin Islands, to the

Court of Appeals for the Third Circuit;

2a

(4) From the District Court of Guam, to the Court of

Appeals for the Ninth Circuit.

5 U.S.C. §701. Application; definitions

(a) This chapter applies, according to the provisions

thereof, except to the extent that—

(1) statutes preclude judicial review; or

(2) agency action is committed to agency discretion by

law.

(b) For the purpose of this chapter—

(1) “agency” means each authority of the Government

of the United States, whether or not it is within or subject

to review by another agency, but does not include—

(A) the Congress;

(B) the courts of the United States;

(C) the governments of the territories or possessions

of the United States;

(D) the government of the District of Columbia;

(E) agencies composed of representatives of the

parties or of representatives of organizations of the

parties to the disputes determined by them;

(F) courts martial and military commissions;

(G) military authority exercised in the field in time of

war or in occupied territory; or

(H) functions conferred by sections 1738, 1739,

1743, and 1744 of title 12; chapter 2 of title 41; or

sections 1622, 1884, 1891-1902, and former section

1641(b)(2), of title 50, appendix; and

(2) ‘person’, “‘rule’’, “‘order’’, ‘license’, ““sanction’’,

‘relief’, and “agency action” have the meanings given

them by section 551 of this title.

3a

5 U.S.C. §702. Right of review

A person suffering legal wrong because of agency action,

or adversely affected or aggrieved by agency action within

the meaning of a relevant statute, is entitled to judicial review

thereof. An action in a court of the United States seeking

relief other than money damages and stating a claim that an

agency or an officer or employee thereof acted or failed to act

in an official capacity or under color of legal authority shall

not be dismissed nor relief therein be denied on the ground

that it is against the United States or that the United States is

an indispensable party. The United States may be named as

a defendant in any such action, and a judgment or decree may

be entered against the United States: Provided, That any

mandatory or injunctive decree shall specify the Federal

officer or officers (by name or by title), and their successors

in office, personally responsible for compliance. Nothing

herein (1) affects other limitations on judicial review or the

power or duty of the court to dismiss any action or deny relief

on any other appropriate legal or equitable ground; or (2)

confers authority to grant relief if any other statute that grants

consent to suit expressly or impliedly forbids the relief which

is sought.

5 U.S.C. §703. Form and venue of proceeding

The form of proceeding for judicial review is the special

statutory review proceeding relevant to the subject matter in

a court specified by statute or, in the absence or inadequacy

thereof, any applicable form of legal action, including actions

for declaratory judgments or writs of prohibitory or manda-

tory injunction or habeas corpus, in a court of competent

jurisdiction. If no special statutory review proceeding is

applicable, the action for judicial review may be brought

4a

against the United States, the agency by its official title, or

the appropriate officer. Except to the extent that prior,

adequate, and exclusive opportunity for judicial review is

provided by law, agency action is subject to judicial review in

civil or criminal proceedings for judicial enforcement.

5 U.S.C. §704. Actions reviewable

Agency action made reviewable by statute and final

agency action for which there is no other adequate remedy in

a court are subject to judicial review. A preliminary,

procedural, or intermediate agency action or ruling not

directly reviewable is subject to review on the review of the

final agency action. Except as otherwise expressly required

by statute, agency action otherwise final is final for the

purposes of this section whether or not there has been

presented or determined an application for a declaratory

order, for any form of reconsideration, or, unless the agency

otherwise requires by rule and provides that the action

meanwhile is inoperative, for an appeal to superior agency

authority.

28 U.S.C. §1331. Federal question; amount in contro-

versy; costs

(a) The district courts shall have original jurisdiction of all

civil actions wherein the matter in controversy exceeds the

sum or value of $10,000, exclusive of interest and costs, and

arises under the Constitution, laws, or treaties of the United

States except that no such sum or value shall be required in

any such action brought against the United States, any

agency thereof, or any officer or employee thereof in his

official capacity.

——

5a

(b) Except when express provision therefor is otherwise

made in a statute of the United States, where the plaintiff is

finally adjuded to be entitled to recover less than the sum or

value of $10,000, computed without regard to any setoff or

counterclaim to which the defendant may be adjudged to be

entitled, and exclusive of interests and costs, the district

court may deny costs to the plaintiff and, in addition, may

impose costs on the plaintiff.

28 U.S.C. §1346. United States as defendant

(a) The district courts shall have original jurisdiction,

concurrent with the Court of Claims, of:

(1) Any civil action against the United States for the

recovery of any internal-revenue tax alleged to have been

erroneously or illegally assessed or collected, or any penalty

claimed to have been collected without authority or any sum

alleged to have been excessive or in any manner wrongfully

collecte dunder the internal-revenue laws;

(2) Any other civil action or claim against the United

States, not exceeding $10,000 in amount, founded either

upon the Constitution, or any Act of Congress, or any

regulation of an executive department, or upon any express

or implied contract with the United States, or for liquidated

or unliquidated damages in cases not sounding in tort. For

the purpose of this paragraph, an express or implied contract

with the Army and Air Force Exchange Service, Navy

Exchanges, Marine Corps Exchanges, Coast Guard Ex-

changes, or Exchange Councils of the National Aeronautics

and Space Administration shall be considered an express or

implied contract with the United States.

(b) Subject to the provisions of chapter 171 of this title,

the district courts, together with the United States District

6a

Court for the District of the Canal Zone and the District

Court of the virgin Islands, shail have exclusive jurisdiction

of civil actions on claims against the United States, for

money damages, accruing on and after January 1, 1945, for

injury or loss of property, or personal injury or death caused

by the negligent or wrongful act or omission of any employee

of the Government while acting within the scope of his office

or employment, under circumstances where the United

States, if a private person, would be liable to the claimant in

accordance with the law of the place where the act or

omission occurred,

(c) The jurisdiction conferred by this section includes

jurisdiction of any set-off, counterclaim, or other claim or

demand whatever on the part of the United States against any

plaintiff commencing an action under this section.

(d) The district courts shall not have jurisdiction under

this section of any civil action or claim for a pension.

(e) The district courts shall have original jurisdiction of

any civil action against the United States provided in section

7426 of the Internal Revenue Code of 1954.

(f) The district courts shall have exclusive original juris-

diction of civil actions under section 2409 a to quiet title to an

estate or interest in real property in which an interest is

claimed by the United States.

Ib

APPENDIX B

OPINIONS BELOW

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF ARIZONA

March 11, 1976

HERBERT PHILLIP SCHLANGER, No. CIV 73-448

PLAINTIFF,

vs. PHX - CAM

U.S.A., et al., ORDER

DEFENDANT.

IT IS HEREBY ORDERED

that this Court, having received the order remanding the case

from the Ninth Circuit Court of Appeals (said order being

No. 74-1232, and filed with the Ninth Circuit Court of

Appeals on July 7, 1975) and this Court having also received

the benefit by additional briefing by the parties, and having

considered the record of the plaintiff s proceedings before the

District Court and the Court of Appeals for the District of ©

Columbia, finds that:

(1) The matter herein considered is res judicata by virtue of

the dismissal of plaintiff's case by the United States District

Court for the District of Columbia in H.C. 39-71 (see

Exhibit 2 to Document No. 27). From a review of the

pleadings, especially plaintiff's Motion for Summary Re-

versal filed with the Court of Appeals for the District of

2b

Columbia on July 26, 1971, and the Government’s response

thereto filed with that same Court on July 29, 1971, itis clear

that the only issues before that court were the contractual

claim now made by plaintiff in this Court and this is likewise

true with respect to the issue relating to the power of the

Court to grant the relief sought. See Schlanger’s Motion for

Summary Reversal at page 1, and the Government’s re-

sponse thereto at page 3.

For the above stated reasons and for those reasons set forth

by defendants in their papers, this Court finds that de-

fendants’ Motion to Dismiss should be and is hereby granted.

(2) This Court further finds that plaintiff fails to state a claim

for which relief can be granted. Having considered those

factors that the court in Mindes v. Seaman, 453 F.2d 197

(Sth Cir. 1971), held should be considered where a district

court examines allegations “‘in light of the policy reasons

behind nonreview of military matters,” this Court finds that

those factors in this case militate against a finding of

reviewability. See also Arnheiter v. Chafee, 435 F.2d 691

(9th Cir. 1970).

/s/ C. A. Muecke

C. A. Muecke

United States District Judge

3b

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

Herbert Phillip Schlanger, )

)

Plaintiff-Appellant, ) No. 76-1930

)

)

v. ) OPINION

)

)

United States of America, )

et al., )

)

Defendants-Appellees, )

)

)

On Appeal from the United States District Court

for the District of Arizona

Before: KILKENNY, Senior Circuit Judge, TRASK,

Circuit Judge, and HAUK, District Judge*

HAUK, District Judge:

I. BACKGROUND

This is an appeal from an order of the District Court for the

District of Arizona, Hon. Carl A. Muecke, dismissing

*Hon. A. Andrew Hauk, United States District Judge for the Central

District of California, sitting by designation.

4b

plaintiff-appellant Schlanger’s complaint on the grounds of

res judicata and failure to state a claim upon which relief

could be granted.

I. STATEMENT OF FACTS

In December 1962, Herbert Schlanger enlisted in the

United States Air Force (USAF) for a period of 4 years and

began his service. In 1965, Schlanger applied for entrance

into the Airman’s Education and Commissioning Program

(AECP), a USAF program providing undergraduate edu-

cation and officer training leading to an officer’s commission.

After the USAF accepted Schlanger into the AECP, it

arranged his admission into and assigned him for AECP

participation at Arizona State University (ASU). As part of

the program, Schlanger received a discharge on December 8,

1966 and reenlisted, on December 9, 1966, for a period of 6

years.

In January 1966, Schlanger enrolled in his courses at

ASU under the auspices of the Air Force Institute of

Technology (AFIT), projected, with his AFIT advisers, a

graduation date of June 1968, and began his studies. During

the fall of 1967, Schlanger became ill and received several

grades of “incomplete” and had to revise his projected

graduation date to August 1968.

In early 1968, Schlanger became actively involved in an

organization known as the Arizona State University Civil

Rights Board. This group focused its efforts primarily, at that

time, on correcting perceived racial discrimination in

housing in that area and received considerable local publicity

regarding its efforts during March of 1968.

Sb

On April 2, 1968, an AFIT liason officer at ASU

summoned Schlanger to appear before him at a ‘“‘counsel-

ling” session. While USAF contends that the conference

related to Schlanger’s absences from his classes and failure

to remove his incompletes, Schlanger contends that the

officer denounced Schlanger’s civil rights activities, told him

such activities were inappropriate for an officer trainee, and

informed him he was “‘getting in with bad groups.” |

On June 17, 1968, by letter, Schlanger was notified of his

removal from AECP for demonstrating a “lack of officer

potential.”” Schlanger sought clarification of this removal

and eventually was informed that his absences from classes

were the key factor in demonstrating his lack of officer

potential. USAF officers denied Schlanger’s subsequent

requests to see the Report of Inquiry which had been

prepared on the matter and also denied his requests for a

hearing.

Soon thereafter, USAF reassigned Schlanger to a post in

Georgia and later send him to a post in Iceland. Schlanger’s

requests for a discharge or reinstatement in AECP were

denied at all levels of USAF authority. Eventually, USAF

permitted Schlanger to return to ASU to complete his

undergraduate studies at his own expense. He did so in 1969

and then began litigation seeking his discharge. After various

legal proceedings, the USAF, in February 1972, discharged

Schlanger, about 6 months before the expiration of his

scheduled term of service and about 1 week before a

scheduled oral argument before the Court of Appeals for the

District of Columbia Circuit.

Schlanger, who has represented himself throughout his

various actions, attended law school after his discharge and

is now a member of the Arizona bar. He continues to argue

his own case here.

6b

Ii. SUMMARY OF PRIOR LITIGATION

A. First Arizona Action

On August 27, 1969, Schlanger filed a petition for a writ of

habeas corpus in the District Court for the District of

Arizona seeking his discharge from USAF. The District

Court denied the petition and this Court remanded the case.

The District Court again denied the petition and this Court

then affirmed the dismissal. The Supreme Court granted

certiorari, 400 U.S. 865 (1970), and affirmed, Schlanger v.

Seamans, 401 U.S. 487 (1971). In an opinion written by

Justice Douglas, the Court found that the District Court in

Arizona lacked jurisdiction over the defendants—the Secre-

tary of the Air Force, the Commander of the USAF base in

Georgia, and the Commander of the USAF ROTC program

at ASU—because the Secretary of the USAF and the base

commander were not residents of Arizona and not amenable

to process there and because the ROTC Commander was not

in the chain of command above Schlanger. 401 U.S. at 488-

90. The Court expressly reserved the question of whether

habeas corpus would be an appropriate remedy if, as

Schlanger claimed, the USAF had breached his contract of

reenlistment. Jd. at 492.

B. Georgia Action

Schlanger then filed a habeas corpus action in the Middle

District of Georgia, where he was then officially stationed,

on July 9, 1970. The District Court there in Georgia

dismissed the petition for Schlanger’s failure to exhaust his

intraservice administrative remedies and the Court of

Appeals for the fifth Circuit dismissed Schlanger’s appeal.

7b

C. District of Columbia Action

On April 28, 1971, Schlanger filed a petition for a writ of

habeas corpus in the District Court for the District of

Columbia. In the petition, Schlanger complained that his

removal from the AECP violated due process; was arbitrary,

capricious, and unreasonable; violated USAF regulations;

was without factual basis; violated his first amendment

rights; and breached his reenlistment contract. The petition

named the Secretary of the Air Force, its Chief of Staff, and

four other USAF officers as respondents. The petition also

sought, in the alternative to habeas corpus relief, a writ of

mandamus, a declaratory judgment of the parties’ rights and

duties under the contract of reenlistment, and relief for

breach of contract.

The District Court in the District of Columbia issued an

order to the respondents, ordering them to show cause why

the petition should not be granted. The respondents

answered the order to show cause by arguing that the

reenlistment contract did not obligate the USAF to place

Schlanger in any particular duty assignment; that

Schlanger’s instructors had reported his absences from

scheduled classes; that Schlanger’s failure to attend all

scheduled classes was, under applicable regulations, a

proper ground for removal from the AECP; and that the

investigation and removal procedures followed the relevant

USAF regulations. On July 8, 1971, the District Court

dismissed the petition and, after the District Court Judge also

denied a motion for reconsideration, Schlanger then

appealed.

On February 24, 1972, the Court of Appeals for the

District of Columbia Circuit, in a per curiam memorandum,

dismissed the appeal as moot in light of the fact that the

8b

USAF had discharged Schlanger. The discharge occurred

about 1 week before a scheduled oral argument before that

Court of Appeals and about 6 months prior to the expiration

of Schlanger’s 6-year term of service. Schlanger petitioned

the Supreme Court for a writ of certiorari, which that Court

denied on October 19, 1972. Schlanger v. Seamans, 409

U.S. 860 (1972).

D. Second Arizona Action

Schlanger then, on July 18, 1973, filed the complaint

which is the subject of this appeal. In this complaint, filed in

the District of Arizona, Schlanger makes six claims for relief:

(1) his removal from the AECP violated various of his

constitutional rights; (2) the defendants induced a breach of

his reenlistment contract; (3) the defendants breached his

reenlistment contract; (4) the defendants unlawfully de-

tained, arrested, and restrained him in Arizona: (5) the

defendants unlawfully detained, arrested, and restrained him

in Georgia; and (6) the defendants unlawfully detained,

arrested, and restrained him in Iceland. The complaint

names the United States, the Secretary of the Air F orce, the

Chief of Staff, and various officers of the USAF and AFIT

as defendants. Schlanger’s complaint asserts several bases of

jurisdiction, including the Declaratory Judgment Act, 28

U.S.C. § §2201, 2202; the Administrative Procedure Act,

5 U.S.C. §701 et seg.; the mandamus statute, 28 U.S.C.

§ 1361; the Civil Rights Act, 28 U.S.C. § 1343; the Federal

tort Claims Act, 28 U.S.C. §1346; existence of a federal

question, 28 U.S.C. §1331; and 28 U.S.C. §1357. In his

prayer for relief, Schlanger seeks a declaratory judgment that

his removal from AECP was unlawful for various reasons

and that the removal from AECP breached his reenlistment

9b

contract; expungement of the reference to the removal from

his USAF records; $300,000 damages for breach of con-

tract; and $1,000 per each day of alleged unlawful detention.

On November 5, 1973, the District Court, Hon. Carl A.

Muecke presiding, dismissed the complaint as res judicata.

On January 5, 1975, however, this Court, in a brief, two-

paragraph per curiam memorandum “remanded” the case to

the District Court. In its memorandum, the Court “sug-

gested” that the parties brief the District Court on the basis of

its jurisdiction and also suggested that the parties present a

full record of the District of Columbia proceedings to the

District Court.

On remand, the defendants did present a copy of the

proceedings in the District of Columbia, including the

government's response to the order to show cause, to the

District Court. The District Court then, on March 12, 1976,

granted the defendants’ motion to dismiss the complaint. In

his written order of dismissal, the District Court Judge stated

two reasons for the dismissal. First, he found that the only

issue before the court—plaintiff's contractual claim—had

already been decided by the District of Columbia courts and

principles of res judicata therefore barred this action.

Second, he found that the complaint failed to state a claim

because federal courts lack jurisdiction to review internal

military matters. On April 5, 1976, the District Judge denied

a Rule 59 motion to alter the judgment. This appeal followed.

IV. ISSUES ON APPEAL

On appeal, Schlanger challenges both reasons stated in the

District Court’s order of dismissal. Thus, he raises two issues

on appeal:

10b

(1) Does the doctrine of res judicata bar this action?

(2) Does the complaint state a claim upon which relief

could be granted?

Because we agree with the District Court that the

complaint fails to state a claim upon which relief could be

granted, we affirm the District Court on that basis and find it

unnecessary to reach the res judicata issue.

V. DISCUSSION

The District Court’s order dismissing the complaint

specified that the complain failed to state a claim because the

complaint raised nonreviewable internal military matters.

The District Court based this finding on the concept that the

federal courts should hesitate to review internal military

affairs and relied primarily upon a decision of the Fifth

Circuit, Mindes v. Seamans, 453 F.2d 197 (5th Cir. 1971).

In Mindes v. Seamans, 453 F.2d 197 (5th Cir. 1971), the

Court of Appeals for the Fifth Circuit considered the

question of the scope of review a federal court should use in

reviewing military matters. After reviewing precedent in the

area, the court set forth a two-part test for the exercise of

jurisdiction by federal courts over military affairs. First, the

plaintiff must allege either the deprivation of a constitutional

right or the violation of applicable statutes or regulations and

then allege exhaustion of available intraservice remedies.

453 F.2d at 201. Second, a district court faced with

allegations satisfying the first part of the test must then

examine and balance the following four factors to determine

whether, as a policy matter, review of the military decision in

11lb

question is proper. These factors are: (1) the nature and

strength of the plaintiff's challenge to the military decision;

(2) the potential injury to the plaintiff if review is refused;

(3) the type and degree of anticipated interference with the

military function; and (4) the extent to which the exercise of

military expertise or discretion is involved. Jd.

The plaintiff s allegations meet the first part of the Mindes

test. The District Court’s order in this case states, however, .

that, after considering the four factors in the second part of

the test, “this Court finds that those factors in this case

militate against a finding of reviewability.”” The District

Court’s decision on this point is correct because this

plaintiff's alleged injury, when compared, for example, to a

decision to send a member of the armed forces into combat

duty, or a decision to discharge a soldier dishonorably, is

indeed so slight as to be negligible, while the discretion the

military should possess in deciding whom to select for

officers should be unfettered. Nevertheless, we suggest that

there is a simpler and perhaps sounder manner of handling

this issue by considering it in the light of recent decisions of

this Circuit.

In several decisions, all in the last eight years, this Court

has discussed the reviewability of military decisions. In these

cases, this Court has specifically held that, while the U.S.

judiciary may review armed forces’ orders of discharge,

Denton v. Secretary of the Air Force, 483 F.2d 21, 24 (9th

Cir. 1973), cert. denied, 414 U.S. 1146 (1974), federal

courts should not review internal military decisions such as

duty orders or duty assignments. Covington v. Anderson,

487 F.2d 660, 664-65 (9th Cir. 1973); Denton, supra, at24;

Arnheiter v. Chafee, 435 F.2d 691 (9th Cir. 1970) (per

curiam). See also Correa v. Clayton, 563 F.2d396, 399 (9th

Cir. 1977).

12b

In the seminal case in this Circuit, Arnheiter v. Chafee,

supra, a Navy officer sought review of an order relieving him

from command of a destroyer. The District Court, finding

that the Navy’s decision was internal, conformed to the

Navy’s regulations, and fell within the bounds of due

process, granted a judgment of dismissal. Arnheiter v.

Ignatius, 292 F. Supp. 811 (N.D. Cal. 1968). This Court

then affirmed “’so much of the district court’s opinion as

holds that the federal courts have no jurisdiction.” 435 F.2d

at 692. In its opinion, the Court quoted a famous passage

from the Supreme Court decision of Orloff v. Willoughby,

345 U.S. 83, 93 (1953) (‘judges are not given the task of

running the Army... .”’).

Although refining it slightly, the later cases in this Circuit

continue to affirm the Arnheiter rule. In Denton, supra, a

former USAF captain sought a declaratory judgment that his

general discharge was unlawful and the District Court

granted summary judgment against him. This Court re-

affirmed Arnheiter but distinguished it on the ground that the

plaintiff in that case merely sought review of a duty order

while the plaintiff in Denton sought a review of a discharge,

which involved allegations of a much greater deprivation of

the plaintiff's rights. The Court then proceeded to assume

jurisdiction and review the problem of whether the USAF

followed its own regulations in discharging Denton. Finding

that it did so, the Court affirmed.

In Covington v. Anderson, supra, our Court’s latest

opinion in this area, the plaintiff sought review of his

suspension from flight status as a jet pilot with the Oregon

Air National Guard. The District Court granted summary

judgment for the defendants and this Court affirmed,

reaffirming Arnheiter, quoting again from the Supreme

13b

Court language of Orloff v. Willoughby, and concluding that

the matter should not be subject to judicial review. The

opinion relied heavily upon the following language from the

Orloff case:

The military constitutes a specialized community

governed by a separate discipline from that of the

civilian. Orderly government requires that the judiciary

be as scrupulous not to interfere with legitimate Army

matters as the Army must be scrupulous not to intervene

in judicial matters. While the courts have found oc-

casion to determine whether one has been lawfully

induced and is therefore within the jurisdiction of the

Army and subject to its orders, we have found no case

where this Court has assumed to revise duty orders as to

one lawfully in the service.

487 F.2d at 665, quoting Orloff v. Willoughby, 345 U.S. 83,

94 (1953).

In this case, plaintiff-appellant Schlanger seeks review of a

decision of the USAF to remove him from the AECP and

reassign him elsewhere. This military decision resembles the

military decisions in Arhneiter and Covington in that it

essentially involves a duty assignment. It does not fall within

the scope of the Denton case because, while Schlanger may

suffer certain collateral consequences from having the

removal remain in his USAF record, the military decision to

remove him from the AECP does not subject him to

consequences as serious as those to which the plaintiff in

Denton was allegedly subject. Therefore, we find that the

USAF decision to remove Schlanger from the AECP was an

internal military decision regarding a duty order not subject

to judicial review in the federal courts.

Accordingly, the order of the District Court dismissing the

complaint is AFFIRMED.

14b

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

HERBERT PHILLIP SCHLANGER, )

)

Plaintiff-Appellant, ) No. 76-1930

2)

6

tT

y=)

UNITED STATES OF AMERICA,

et al.,

Defendant- Appellees.

ee ee a a a a a a a

Before: Kilkenny, Senior Circuit Judge, Trask, Circuit

Judge, and Hauk, District Judge*

The panel as constituted in the above case has voted to

deny the petition for rehearing. Judge Trask voted to reject

the suggestion for a rehearing in banc, and Judges Kilkenny

and Hauk have voted to recommend rejection of the sug-

gestion for rehearing in banc. |

The full court has been advised of the suggestion for in

banc rehearing, and no judge of the court has requested a vote

on the suggestion for rehearing in banc. Fed. R. App. P.

35(b).

*The Honorable A. Andrew Hauk, United States District J udge Central

District of California, sitting by designation.

1Sb

In this connection we note that the facts of the Glines v.

Wade case,___ F.2d _____ , decided October 5, 1978, are

entirely different from those herein in Schlanger and the only

thing the two cases have in common is the military uniform.

The petition for rehearing is denied and the suggestion for

a rehearing in banc is rejected.

Dated: November 13, 1978