Petition — Morrison v. Stetson

IN THE

Supreme Court of the United States

October Term 1978

NO. 78-

DR. JOHN E. MORRISON, JR.,

DR. DAVID E. GRAHAM,

DR. NEWTON C. GALUSHA,

Petitioners

V.

HONORABLE JOHN STETSON

SECRETARY OF THE AIR FORCE,

Respondent

PETITION FOR WRIT OF CERTIORARI TO THE UNITED

STATES COURT OF APPEALS FOR THE DISTRICT OF

COLUMBIA CIRCUIT

Robinson O. Everett, Esquire

Neil B. Kabatchnick, Esquire

1800 "M" Street, N.W.

‘Washington, D. C. 20036

(202) 872-1051

Counsel for Petitioners

cm Sea EEE LETT

FRED R. SURFACE & ASSOC. INC., HERITAGE BUILDING, RICHMOND, VA. (804) 643-7789

INDEX

Opinions Below ............- Seas

Jurisdiction ..... chew ewes ee eas

Question Presented .............

Statutes Involved wccccscccccees

Statement of the Case ....... ~~

Reasons Why the Court Should

Grant the Writ ...... vyrrcre °

l.

The Decision of the Court

Below Was in Conflict With

Decisions of This Court

That a Federal Statute

Cannot Be Overruled By

Military Regulations.....

In Its Interpretation of

the Agreement Between

Petitioners and the Air

Force, the Decision of

the Court Below Was in

Conflict With Applicable

Decisions of This Court

And of Other Federal

GE Ges eseecesbecscevece

This Case Presents An

Important Question of

Federal Law Which Should

Be Settled by This Court.

EOS ee a

Capes ticete GF SOrvVice ..ccceccecs

15

18

Index Continued

Page

APPENDIX

Judgment of the U.S. Court

of Appeals for the District

of Columbia Circuit

JENUAEY 29, 1979s ccccers - A-l

Order of U.S. District Court

for the District of Columbia

Pebruary 1, 1978 cece A-2

Memorandum Opinion of Dis-

trict Judge Oliver Gasch

February 2, L976 secnsives A-3

TABLE OF AUTHORITIES

Cases:

Cook v. Helder et al., (Civ.

No. S-2962) (E.D. Cal., filed

July 30, 2973) sseceass ceewees 13

Hirshberg v. Cooke, 336 U.S.

210;. 69: 3.6t. Smee B23 tee

| Pe SR cl eee ee eee ee ee 13

Murray v. United States, 154

CS. Ohi : 28S CEPR’ oak ck ees oe an

United States v. Larionoff,

433i U.S. O64; S37 B<8k;s

2n5@, SS Ua BSc. OS CATT? ons teevda

Statutes:

20 U.8.Cs SRGE Cee) eee sae Shee cn

LG Guisvs BS Cte: saceawctewnees oe et

ii

Index Continued

Page

(Statutes continued)

BO Us in. “B GALS 60 wie seis ciewds ll

10 U.S.C. § 8394 wcccvcesuer aan ae

Se Pesce B WERE obs he eee es eee ll

5 G.6 0. 8 SSSL (ESTS) ce cicwvaee pe

28 U.S.C. § 1254(1) (1976) ...... 2

50 U.S.C. App. § 454(1)(1) ..... 2,78;

9,10,

12,16

50 U.S.C. App. § 454(1)(3) ..... 9

P.L. 85-861, § 1(178) (A), 72

BORE. 250 eeeicc cee eeeseeences 10

iii

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1978

No. 78-

DR. JOHN E. MORRISON, JR.,

DR. DAVID E. GRAHAM,

DR. NEWTON C. GALUSHA,

Petitioners

Vv.

HONORABLE JOHN STETSON

SECRETARY OF THE AIR FORCE,

Respondent

PETITION FOR A WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS FOR

THE DISTRICT OF COLUMBIA CIRCUIT

This petition for a writ of certi-

orari seeks review of a judgment of the

Court of Appeals for the District of

Columbia Circuit, which affirmed an

earlier order entered in the District

Court of the District of Columbia. That

order denied petitioner's motion for

summary judgment and granted respondent's

motion for summary judgment.

OPINIONS BELOW

A panel of the Court of Appeals for

the District of Columbia Circuit heard

argument on January 18, 1979; and on

January 29, 1979, entered a judgment

which affirmed the order of the District

Court. No opinion was filed by the Court

of Appeals, which stated that it was in

agreement with the memorandum opinion

filed on February 1, 1978 by District

Julge Oliver Gasch. That opinion, which

is unpublished, is reproduced in the

Appendix to this Petition at A-3.

JURISDICTION

The decision of the panel of the

Court of Appeals was entered on January

29, 1979. This petition is timely filed

within 90 days of the entry of tne judg-

ment in the Court of Appeals. Juris-

diction to review this case is conferred

on the Court by 28 U.S.C. § 1254(1)

(1976).

QUESTION PRESENTED

Did the Court below err in allowing

respondent to hold petitioner medical

officers on active duty for more than

two years contrary to 50 U.S.C. App. §

454(1)(1) and their agreements with the

Air Force?

STATUTES INVOLVED

50 U.S.C. App. § 454(1) (1976)

(1) The President may order to

active duty (other than for training),

as defined in section 101(22) of title

10, United States Code, for a period

of not more than twenty-four consecu-

tive months, with or without his con-

sent, any member of a reserve com-

ponent of the Armed Forces of the United

States who is in a medical, dental or

allied specialist category, who has not

attained the thirty-fifth anniversary

of the date of his birth, and has not

performed at least one year of active

duty (other than for training). This

subsection does not affect or limit

the authority to order members of the

reserve components to active duty con-

tained in section 672 of title 10,

United States Code.

(2) For the purposes of computa-

tion of the periods of active duty

(other than for training) referred to in

subsection (1), credit shall be given

for all periods of one day or more per-

formed under competent orders, except

that no credit shall be allowed for

periods spent in student programs prior

to receipt of the appropriate profes-

sional degree or in intern training.

(3) Any person who is called or

ordered to active duty (other than for

training) from a reserve component of

the Armed Forces of the United States

after September 5, 1950, and thereafter

serves on active duty (other than for

training) as a medical, dental, or

allied specialist for a period of

twelve months or more shall, upon re-

lease from active duty or within six

months thereafter, be afforded an

opportunity to resign his commission

from the reserve component of which

he is a member unless he is otherwise

obligated to serve on active military

training and service in the Armed

Forces or in training in a reserve

cemponent by law or contract.

3

(4) Any physician or dentist who

meets the qualifications for a Reserve

commission in the respective military

department shall, so long as there is

a need for the services of such a

physician or dentist, be afforded an

opportunity to volunteer for a period

of active duty (other than for train-

ing) of not less than twenty-four

months. Any physician or dentist who

so volunteers his service, and meets

the qualifications for a Reserve

commission shall be ordered to active

duty (other than for training) for not

less than twenty-four months, notwith-

standing the grade or rank to which such

physician or dentist is entitled.

STATEMENT OF THE CASE

The petitioners are Air Force medi-

cal officers, who were initially com-

missioned as reserve officers through the

Air Force Reserve Officers Training Corps

("AFROTC") program. They sought a judg-

ment declaring that as medical officers

they are only obligated to serve two

years of active duty, rather than the

four years of active duty for which the

Air Force is holding them. Since peti-

tioner Morrison had already served more

than two years of active duty when this

action was commenced, he also asked for

relief in the nature of habeas corpus in

order to obtain his immediate release

from active duty.

The action was brought by petitioners

as a class action in behalf of themselves

and of the many other Air Force medical

4

officers who are similarly situated.

However, after respondent had answered,

it was stipulated, with approval of the

District Court, that the action would

proceed solely in behalf of petitioners

and that respondent would withdraw any

defense of exhaustion of remedies. Cross-

motions for summary judgment were filed;

and, after hearing argument, District

Judge Oliver Gasch granted respondent's

motion and dismissed the action. Peti-

tioners appealed unsuccessfully to the

Court of Appeals, which affirmed without

Opinion.

As Judge Gasch has noted in his

Memorandum Opinion, the material facts

are not in dispute. Each of the peti-

tioners enrolled in an approved AFROTC

program during 1966 and 1967. At that

time, each executed an Air Force Form

1056, wherein he agreed to serve on

active duty for four years if commis-

sioned as an officer. This Form, en-

titled "Air Force Reserve Officers Cate-

gory Agreement", also provided for delay

of .active duty until the completion of

professional studies but did not indi-

cate whether such delay would alter the.

four-year active duty requirement.

Upon completion of the AFROTC pro-

gram, each petitioner received orders

for appointment as a second lieutenant

in the Air Force Reserve. Each appoint-

ment was effectuated by means of an

Appointment Letter, Oath of Office, and

Appointment Order. However, before re-

ceiving his appointment, each petitioner

applied for and was granted an educa-

tional delay to study medicine before

5

entry On active duty. These studies of

medicine were undertaken solely at the

expense of petitioners and without any

government assistance.

After completing medical school,

each petitioner became eligible to be

commissioned as a medical officer in the

Air Force Reserve. Accordingly, each

received a new Appointment Letter, which

tendered an indefinite term appointment

as a Reserve of the Air Force in the

grade of "First Lieutenant (Medical

Corps)". This Letter stated that

acceptance of the appointment tendered

"will vacate your present Reserve of the

Air Force appointment". Each petitioner

was also required to execute a new Oath

of Office -- this time as a "First

Lieutenant, Medical Corps" in the Re-

serve of the Air Force. After acceptance

of the appointment that had been ten-

dered, each petitioner received an

Appointment Order, which specifically

provided that his previous appointment

as a line officer was "vacated".

After being appointed as medical

officers in the Air Force Reserve, each

petitioner received further educational

delay so that he could complete post-

graduate medical training -- this train-

ing also being performed without any

support from the government. In 1975

petitioner Morrison was ordered to four

years' extended active duty. In 1976

petitioners Galusha and Graham were

similarly ordered. Petitioners commenced

their action in 1977.

REASONS WHY THE COURT SHOULD

GRANT THE WRIT

1. The Decision of the Court Below Was

in Conflict With Decisions of This

Court That a Federal Statute Cannot

Be Overruled by Military Regulations.

In United States v. Larionoff, 431

U.S. 864, 97 S. Ct. 2150, 53 L.Ed. 48

(1977), this Court recently reaffirmed

that:

"For regulations, in order

to be valid, must be consis-

tent with the statute under

which they are promulgated".

(431 U.S. at 873).

Contrary to this well-established prin-

ciple, the courts below disregarded the

express provisions of 50 U.S.C. App. §

454(1) (1) by holding that, under Air

Force Regulations, the petitioners were

obligated to serve four years of active

duty as medical officers.

This statute states that the Presi-

dent may order to active duty for a

period of not more than twenty-four con-

secutive months any member of a reserve

component of the Armed Forces of the

United States who is in a medical, den-

tal, or allied specialist category; is

not thirty-five years of age; and has

not performed at least one year of act-

ive duty (other than for training). All

of the petitioners are medical officers - |,

so designated and appointed by the Air

Force. If the President -- who under

Article Two of the United States Con-

stitution is Commander-in-Chief of the

armed forces and is vested with the

Executive Power -- cannot do so, then it

is obvious that his subordinates, such

as the respondent Secretary of the Air

Force, have no authority to order peti-

tioners to active duty for more than

twenty-four consecutive months. There-

fore, in holding petitioners on active

duty for more than twenty-four censecu-

tive months against their wills,~ respon-

dent Secretary violated a clearly appli-

cable federal statute; and such a viola-

tion cannot be justified by any regula-

tions issued by respondent or his pre-

decessors in office. United States v.

Larionoff, supra.

In District Judge Gasch's Memoran-

dum Opinion, which was later adopted by

the Court of Appeals, he acknowledges

that:

"On its face, the provi-

sion [50 U.S.C. App. §

454(1)(1)] appears to sup-

port plaintiffs' position".

(A-13 ).

However, he went on to conclude, from "a

reading of the provision in context and

+Petitioner Morrison had been held on

active duty for more than two years

when the action was commenced. All of

the petitioners are now being held on

active duty involuntarily after having

served for twenty-four consecutive

months.

an examination of its legislative

history", that it was not intended to

apply to medical officers who are AFROTC

graduates.

The "context" on which Judge Gasch

relied is 50 U.S.C. App. § 454(1) (3).

This statute allows a medical or dental

officer who has served on active duty for

twelve months or more to resign his com-

mission thereafter, "unless he is other-

wise obligated to serve on active mili-

tary training and service in the Armed

Forces or in training in a reserve com-

ponent by law or contract". Under the

most rudimentary canons of statutory

construction, the circumstance that 50

U.S.C. App. § 454(1) (3) contains such an

exception but that 454(1) (1) -- enacted

at the same time -- contains no such

exception, suggests that Congress did not

intend to create any exception to the

twenty-four month limitation on the

President's power. Similarly, the ex-

press exception provided in § 454(1) (1)

for orders to active duty under 10 U.S.C.

§ 672 indicates that no other exception

was intended by implication.

The "legislative history" on which

Judge Gasch relied was contained in an

exhibit to respondent's motion for sum-

mary judgment. However, that entire

lengthy document has not a single pas-

sage stating that the President may

order to active duty for four years --

rather than only for two years -- those

medical officers in the Reserve who had

previously been commissioned under the

AFROTC program. Certainly Congress was

aware that a person appointed as a medi-

cal officer in the Air Force Reserve

9

might already hold a commission; P.L.

85-861, § 1(178) (A), 72 Stat. 150,

enacted on September 2, 1958 -- only a

year after 50 U.S.C. App. § 454(1) (1) --

deals specifically with this possibility.

Even so, not a single legislator inti-

mated that because of obligations inci-

dent to his previous commission a medi-

cal officer in the Reserve might be

ordered to active duty for more than

twenty-four consecutive months.

The courts below also disregarded

the Air Force's own administrative in-

terpretations and practice, which made

clear that the plain meaning of 50 U.S.C.

App. § 454(1) (1) should apply to peti-

tioners. On December 20, 1963, the Air

Force sent to all Detachments of the

AFROTC a message which stated in para-

graph 3 thereof:

"All AFROTC commissionees

are held to their contractual

agreement (four or five years

of extended active duty

depending on their cate-

gory) except those who

later complete medical,

dental, or veterinary

school and are re-appointed

in the Medical Service

Corps. This exception is

in keeping with Public Law

497, 84th Congress. Medi-

cal, dental and veterinary

officers are ordered to

active duty as captains in

the USAF Reserve for a mini-

mum period of two years.

10

The four-year active duty

commitment incurred by com-

pletion of the AFROTC pro-

gram is abrogated by the

provisions of PL 497".

(Emphasis supplied).

This same interpretation had been stated

by the Air Force on at least one prior

occasion -- namely, on August 14, 1962.

The Air Force procedure used in re-

appointing the three petitioners and

several hundred others who graduated

from AFROTC and thereafter attended medi-

cal or dental school -- a procedure

specified in Air Force Manuals -- is in

the same vein. The Appointment Letter

and the Appointment Order state that any

existing appointment is "vacated".

"Vacating" the initial AFROTC appointment

as a line officer conforms to the Air

Force's interpretation on December 20,

1963 that a four-year AFROTC active duty

commitment is "abrogated" upon reappoint-

ment as a medical officer.

Under 5 U.S.C. § 3331 (1976), an

oath of office is required before one

enters upon the duties of an office

under the Government of the United

States. However, 10 U.S.C. §§ 8312,

8394, and 8451 do not require a new oath

of office when an Air Force officer is

promoted. By having a new Oath. of

Office executed as part of petitioners'

reappointment as a medical officer, the

Air Force emphasized that they were

entering upon an entirely new office and

that the obligations incident to the old

office -- and the earlier AFROTC appoint-

1l

ment as line officers -- were "abro-

gated".

In short, Congress in 1957 enacted

a law which in plain language placed a

two year ceiling on the active duty ‘that

could be required of petitioners -- and

of several hundred other Air Force medi-

cal officers who were similarly situated.

The Air Force initially recognized that

clear intent and created administrative

procedures conforming to that intent.

Those procedures, which have been appli-

cable for many years, were utilized in re-

appointing the petitioners as medical

officers in the Air Force Reserve.

However, because of its need for doctors

and dentists, the Air Force has attempted

to override Congressional intent. As in

United States v. Larionoff, supra, this

attempt must be rebuffed. In failing to

do so, the decision of the court below

was in conflict with the applicable de-

cisions of this Court.

II. In Its Interpretation of the Agree-

ment Between Petitioners and the

Air Force, the Decision of the

Court Below Was in Conflict With

Applicable Decisions of This Court

And of Other Federal Courts.

In our discussion of 50 U.S.C. App.

§ 454(1) (1), it was pointed out that the

administrative procedure used by the Air

Force in reappointing petitioners as

medical officers supports petitioners'

interpretation of that statute. In addi-

tion, the procedure employed by the Air

Force evidenced its agreement that peti-

tioners would only be subject to obliga-

tions for active duty under their new

12

appointments as medical officers and

would no longer be subject to obligations

based on their initial appointments under

the AFROTC program as Air Force Reserve

line officers.

The Appointment Letter and Appoint-

ment Order furnished to each petitioner

by the Air Force provided that earlier

appointments were "vacated". Although

the wording of the Appointment Letter and

the Appointment Order were specified by

the Air Force's own directives, neither

document stated -- or even intimated --

that the petitioners would be subject to

a four-year active duty commitment con-

nected with. their earlier AFROTC appoint-

ments.

As this Court has made clear, mili-

tary law views one appointment or enlist-

ment as separate from another; and a

member of the Armed Services does not

carry over from a prior enlistment or

appointment the obligations or liabili-

ties incurred during that earlier ser-

vice. Thus, an accused may not be tried

by court-martial for alleged offenses

committed during a prior enlistment.

Hirshberg v. Cooke, 336 U.S. 210, 69 S.

Ct. 530, 93 L. Ed. 621 (1949).

In line with this principle, the

Court of Claims held that the Air Force

could not predicate an administrative

discharge on alleged misconduct during

an earlier enlistment. Murray v. United

States, 154 Ct. Cl. 185 (1961). The

only case of which we are aware involv-

ing the same question presented in the

case at hand is Cook v. Helder et al,

(Civ. No. S-2962), decided in 1973 in

13

the Eastern District of California.

That case held that an Air Force dental

officer who had originally been appointed

under the AFROTC program as a line offi-

cer in the Reserve, but thereafter had

been reappointed as a dental officer,

was sybject only to two years active

duty.

Thus, the decisions, both in this

Court and the lower federal courts,

establish that reappointment -- especial-

ly when accompanied by a new Oath of

Office and Appointment Orders which

"vacate" any earlier appointment -- abro-

gates obligations incurred under any

prior appointment. The slate is wiped

clean:

As a matter of federal contract law,

it seems clear that the petitioners and

the Air Force contracted with respect to

this well-established principle of mili-

tary law. At the least, the Air Force --

which drafted every document involved in

the original appointments and the re-

appointments -- should have announced any

intention not to follow the usual rules

of military law. Having attempted to

bind petitioners to four years active

duty by its "Category Agreement", the Air

Force cannot complain when that Agreement

was abrogated by the Air Force's own

actions.

<The Government gave notice of appeal;

but an appeal was never perfected and

the dental officer was released from

active duty.

14

Each of the petitioners went through

medical school and post-graduate training

at his own expense. The Air Force, how-

ever, receives the benefit of that extra

training. The duties to be performed as

a medical officer have almost nothing to

do with any duties for which petitioners

were trained in AFROTC. Under these cir-

cumstances it is quite equitable to apply

to the agreement between petitioners and

the Air Force the principle -- recognized

by this Court and other federal courts --

that a new appointment or enlistment

supersedes obligations and liabilities

under a prior appointment or enlistment.

III. This Case Presents An Important

Question of Federal Law Which

Should Be Settled by This Court.

The question presented in this case

is important to the petitioners because

it concerns the petitioners' liberty --

whether they must serve two more years

on active duty than was required of mili-

tary doctors who hag not participated in

the AFROTC program. Also, the question

is important to several hundred other

Air Force doctors who, over the years,

have been required to serve two extra

years of active duty by reason of earlier

participation in AFROTC.

2A11 of the petitioners have already

been held for more than two years of

active duty. However, to the extent

such retention was unauthorized, they

would have a claim for extra pay under

the Variable Incentive Pay program for

doctors in the Armed Forces.

15

However, the importance of the ques-

tion presented goes still further and

involves the public at large. Indeed,

this Court is being requested to answer

whether a military department or Armed

Service may override the clear wording of

a law enacted by Congress and whether an

Armed Service may disregard an agreement

it has made with members of that Service.

CONCLUSION

The Memorandum Opinion of the Dis-

trict Court disregarded the clear mean-

ing of 50 U.S.C. App. § 454(1)(1) and

failed to attribute proper significance

to the actions of the Air Force in

"vacating" petitioners' earlier appoint-

ments as Air Force Reserve line officers

and reappointing them as medical offi-

cers. These errors were perpetuated by

the Court of Appeals in its judgment of

affirmance.

Since the decision of the court

below conflicts with a federal statute

and with applicable decisions of this

Court and other federal courts, peti-

tioners seek review by writ of certiorari.

There is involved here not only the

liberty of the petitioners -- who are

being held in the Air Force against

their will -- but also that of many

other medical officers similarly situated.

Also, there is presented here the even

more basic issue of whether the Armed

Services and other executive agencies

will be kept within the limits pre-

scribed by Congress.

16

Therefore, petitioners request this

Court to grant the writ of certiorari.

Respectfully submitted,

) ‘

Robinson O. Everett _

WS B filet lok

j 4 : (7 4

wl B filfitil re

Neil B. Kabatchnick

Attorneys for Petitioners

| Morrison, Galusha and

Graham

17

CERTIFICATE OF SERVICE

I certify that, pursuant to Supreme

Court Rule 33, I have served the fore-

going Petition for a Writ of Certiorari

to the Court of Appeals for the District

of Columbia Circuit by mailing three

copies, first class postage prepaid, to

the Solicitor General, Department of

Justice, Washington, D. C. 20530, and

three copies to the Honorable Earl V.

Silbert, United States Attorney, United

States Courthouse, Washington, D. C.

This 27th day of April, 1979.

OE A aes

Robinson O. Everett

1800 "M" Street, N.W.

Washington, D.C. 20036

Telephone: 202-872-1051

Counsel of Record for

Petitioners

18

APPENDIX TO PETITION

UNITED STATES COURT OF APPEALS

FOR THE DISTRICT OF COLUMIA CIRCUIT

No. 78-1247

Dr. John E. Morrison, Jr., et al.,

Appellants

We

Honorable John Stetson,

Secretary of the Air Force,

Appellee

Appeal from the United States District

Court for the District of Columbia.

Before: WRIGHT, Chief Judge, and

ROBINSON and ROBB, Circuit Judges.

JUDGMENT

This cause came on to be heard on

the record on appeal from the United

States District Court for the District

of Columbia and was argued by counsel.

While the issues presented occasion no

need for an opinion, they have been ac-

corded full consideration by the Court.

See Local Rule 13(c).

This court is in agreement with the

memorandum opinion filed February l,

A-1

1978 by District Judge Oliver Gasch.

(See Appendix at 76-85)

On consideration of the foregoing,

it is ORDERED and ADJUDGED by this court

that the judgment of the District Court

appealed from in this cause is hereby

affirmed.

Per Curiam

For the Court

/s/ George A. Fisher, Clerk

UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

No. 77-1415

John Morrison, et al.,

Plaintiffs,

Vv.

John Stetson,

Defendant.

ORDER

Upon consideration of the parties'

cross-motions for summary judgment, the

points and authorities filed in support

and opposition thereto, the arguments of

counsel in open Court, the entire re-

cord herein, and for the reasons set

forth in the Court's Memorandum issued

A-2

this day, it is by the Court this lst

day of February, 1978.

ORDERED that defendant's motion for

summary judgment be, and hereby is,

granted; and it is further

ORDERED that plaintiffs' motion for

summary judgment be, and hereby is,

denied; and it is further

ORDERED that piaintiffs' complaint

be, and hereby is, dismissed.

/s/ OLIVER GASCH, Judge

MEMORANDUM

Presently before the Court are the

parties' cross-motions for summary judg-

ment. Plaintiffs are graduates of the

Air Force Reserve Officers Training

Corps ("AFROTC") program who are pre-_

sently first lieutenant medical officers

serving active duty in the Air Force.

Plaintiffs seek a declaration that the

four-year active duty commitment agreed

to when they enrolled in the AFROTC pro-

gram has been vacated and that they are

required to serve only two years' active

duty. For the reasons discussed below,

the Court is not persuaded by plaintiffs'

contentions and concludes that they re-

main obligated to serve four years'

active duty.

FACTUAL BACKGROUND

The material facts underlying

plaintiffs' claim are not in dispute.

A-3

During 1966 and 1967, each of the

plaintiffs enrolled in approved AFROTC

programs. At that time, they executed

Air Force Form 1056, entitled "Air

Force Reserve Officers Category Agree-

ment," which represents a contractual

agreement between each plaintiff and

the Air Force. The Agreement speci-

fically provided that plaintiffs would

be obligated to serve four years' active

duty if they were commissioned as offi-

cers. The Agreement also provided that .

plaintiffs might be permitted to delay

active duty until She completion of pro-

fessional studies,* but it did not in-

dicate whether an educational delay (and

any subsequent recommissioning) would

alter the four-year active duty require-

ment.

Following completion of the AFROTC

program, each plaintiff received orders

for appointments as second lieutenants

in the Air Force Reserve. Each appoint-.-

ment was effectuated by means of an

Appointment waral res | Oath of Office and

Appointment Order. Prior to the

TExhibit A-1 to Plaintiffs’ Motion for

Summary Judgment.

21d., at Para. 8.

3Exhibits A-6, A-7, and A-8 to Plain-

tiffs' Motion for Summary Judgment

(pertaining to plaintiff Morrison).

Plaintiff Morrison received his

Appointment Order in 1968, while

plaintiffs Galusha and Graham re-

ceived their Orders in 1969 and 1970,

respectively. (The personnel files

A-4

*Footnote 3 continued:

pertaining to plaintiffs Galusha and

Graham are contained in Defendant's

Filing of December 12, 1977).

A-5

appointments, however, each plaintiff

applied for and was granted an educa-

tional delay to study medicine before

serving active duty. Upon completion

of their studies, plaintiffs became

eligible under Air Force regulations to

be commissioned as medical officers.

Accordingly, each plaintiff received

an Appointment Letter, executed an Oath

of Office, and received an Appointment

Order commissioning him as a first

lieutenant in the medical corps.

These Appointment Orders specifically

provided that the earlier appointments

as second lieutenant line officers were

"vacated."

In 1975, Morrison was ordered to

four years' extended active duty;° in

1976, Galusha and Graham were similarly

ordered. Morrison already has served

two years' active duty and claims that

he should be released immediately.

Galusha and Graham seek a declaration

that they are entitled to release upon

completion of two years' active duty.

4Exhibits A-9, A-10, and A-1ll to

Plaintiffs' Motion for Summary Judg-

ment. Plaintiffs Morrison and

Galusha received their appointments

as medical officers in 1973, and

plaintiff Graham received his appoint-

ment in 1974.

5Exhibits A-12 and A-13 to Plaintiffs'

Motion for Summary Judgment.

A-6

MERITS

Plaintiffs do not dispute that, by

executing the "Category Agreement" when

enrolling in the AFROTC program, they

contractually committed themselves to

serve four years' active duty if they

were commissioned officers in the Air

Force Reserve. Plaintiffs were commis-

sioned officers upon their completion of

the AFROTC program; thus, they are obli-

gated to fulfill the four-year commit-

ment unless they have in some way been

excused from that commitment. Plain-

tiffs make two arguments in support of

their claim that they have been excused

from the four-year commitment: (a)

Plaintiffs' appointment as medical offi-

cers, was intended also to vacate the

four-year active duty obligation under-

taken pursuant to the AFROTC program;

and (b) active duty orders for medical

officers in excess of two years are pro-

hibited by statute. See 50 U.S.C. App.

§ 454(1) (1) (1970).

I. Intention of the Parties Re-

garding the Effect of Plain-

tiffs' Appointment as Medical

Officers.

Plaintiffs initially argue that

the Air Force intended to rescind plain-

tiffs' four-year active duty obligation

when it appointed them first lieutenant

medical officers. Evidence of such an

intent on the part of the Air Force, to

the extent that it does exist, most

likely would be found in any of several

places: the AFROTC Category Agreement;

the documents concerning the educational

delay; the Order appointing each plain-

tiff a medical officer; and relevant Air

Force Regulations and policy statements.

At the outset, it is clear that

neither the Category Agreement nor the

documents concerning the educational de-

lay evidence any intent of the Air Force

that plaintiffs' four-year active duty

obligation would be rescinded if they

were appointed medical officers follow-

ing completion of medical studies. The

Category Agreement does provide that

plaintiffs could obtain an educational

delay before commencing active duty.

The Agreement is completely silent,

however, regarding the effect that

appointment as a medical officer would

have on thg four-year active duty re-

quirement. The documents approving

plaintiffs' request for an educational

delay similarly are silent. Neither the

applications for the delay nor the

letters approving it discuss plaintiffs'

potential appointment as medical officers

6See note 2 Supra.

7The Appointment Letter, Oath of

Office, and Appointment Order

effectuating each plaintiff's ori-

ginal appointment as second lieutenant

line officers also give no indication

regarding the effect that later

appointment as a medical officer

would have on the active duty obliga-

tion. See note 3*supra.

following completion of medical studies; 8

thus, they do not consider whether medi-

cal officer appointments would alter the

four-year active duty obligation. There

is no evidence that the parties, either

at the time the original Agreement was

executed or when the educational delay

was approved, agreed that plaintiffs'

later appointment as medical officers

would rescind their four-year active

duty commitment.

The critical issue therefore be-

comes whether the Air Force, when it

appointed plaintiffs medical officers,

intended to rescind the four-year active

duty obligation. Plaintiffs contend

that the statements in the Appointment

Letter and Order specifically vacating

each plaintiff's earlier appointment

conclusively demonstrate that the Air

Force intended to rescind the four-year

obligation. The Court is not persuaded

by plaintiffs’ position. By themselves,

the Appointment Letter and Order are at

best inconclusive regarding the Air

Force's understanding of the effect of

vacating plaintiffs' earlier appoint-

ments. The Appointment Letter and Order

make no reference to plaintiffs' active

duty commitment. It appears reason-

able to the Court that had the Air Force

intended the Appointment Order to re-

scind the four-year obligation, it would

have specified in the Order or elsewhere

~8See Exhibits A-4 and A-5 to Plain-

tiffs' Motion for Summary Judgment.

9See note 4 supra.

A-9

a new active obligation that would then

become applicable.

More importantiy, regardless of any

conclusions about the Air Force's intent

that might be drawn from the Appointment

Order, the Air Force Regulations in ef-

fect at the time of plaintiffs' appoint-

ment as medical officers demonstrate

conclusively that the Air Force did not

intend to reduce plaintiffs' four-year

obligation. AFR 45-48, pertaining to

the AFROTC program, provides at para-

graph forty-two that a "graduate must

serve the period specified in the agree-

ment under which he was originally

appointed, even though he may later be

reappointed (such as a commissioned

officer in the Medical Corps... .) "0

Similarly, AFR 36-51, entitled "Active

Duty Service Commitments (ADSC)," pro-

vides in pertinent part that officers

commissioned through AFROTC who enter

active duty as a physician or Medical

Services Corps officer have a four-year

ADSC. These regulations confirm that

the Air Force intended that AFROTC

graduates recommissioned as medical

officers would retain their four-year

active duty commitment.

Plaintiffs respond that these regu-

lations are not decisive because they

1UDefendant's Exhibit No. III.

llpefendant's Exhibit No. II, at

Table 2, Rule 6, at note 4 and Rule

8, at note 5.

A-10

were not in effect when plaintiffs

executed the Category Agreement or when

they received approval for an educational

delay.12 Plaintiffs apparently argue

that, even if the Air Force did not in-

tend to rescind plaintiffs' four-year

active duty obligation when it appointed

them medical officers, the Air Force can-

not hold plaintiffs to that obligation

because the regulations in effect when

plaintiffs executed the Category Agree-

ment did not authorize a four-year obli-

gation for AFROTC graduates recommis-

Sioned as medical officers. Without

deciding whether the regulations in

effect when plaintiffs signed the Cate-

gory Agreement should even be considered

controlling, the Court notes that these

regulations apparently were silent con-

cerning the active duty status of AFROTC

graduates later commissioned as medical

officers. Moreover, since 1964, Air

Force policy clearly has been that medi-

cal officers who were AFROTC graduates

retained their four-year obligation.

The Court concludes that the Air

Force, by appointing plaintiffs medical

““The version of AFR 36-51 cited by de-

fendant is dated December 29, 1972.

Defendant's Exhibit No. II. The ver-

sion of AFR 45-48 cited by defendant

is dated June 20, 1973, but an

earlier version of AFR 45-48 dated

April 30, 1970, also contains the

pertinent provision. Defendant's

Exhibits No. ILI and IIIa.

l3see Defendant's Exhibits No. VI and

Via.

A-11

officers, did not intend to rescind

plaintiffs' four-year active duty obli-

gation. The medical officer Appointment

Order reflects no such intent; and both

the regulations in effect when plain-

tiffs were appointed medical officers

and the Air Force policy in effect when

plaintiffs entered AFROTC provided that

AFROTC graduates recommissioned as medi-

cal officers had a four-year active duty

obligation.1

II. 50 U.S.C. App. § 454 as a Bar

to Requiring Medical Officers

to Serve Active Duty in Excess

of Two Years.

Plaintiffs' second argument in

support of their claim is that the Air

Force is prohibited by statute from

ordering plaintiffs, who are medical

officers, to more than two years of

active duty. Plaintiffs cite 50 U.S.C.

App. § 454(1)(1) (1970), which provides

tthe Court does not concur with the de-

cision in Cooke v. Helder, No. S-

2862 (E.D. Cal., filed July 30, 1973),

which concluded that an AFROTC grad-

uate's four-year active duty obliga-

tion was abrogated when he was re-

commissioned as a dental officer.

While the court's reasoning in that

decision is unclear, the court

apparently relied on the fact that the

regulation in effect at the time

plaintiff was appointed as a dental

officer did not specify that AFROTC

graduates recommissioned after an

educational delay would be held to

their original four-year obligation.

A-12

in pertinent part:

The President may order

to active duty (other than

for training) ... fora

period of not more than

twenty-four consecutive

months, with or without

his consent, any member of

a reserve component of the

Armed Forces of the United

States who is in a medical,

dental, or allied specialist

category, who has not attained

the thirty-fifth anniversary

of the date of his birth, and

has not performed at least

one year of active duty

(other than for training).

On its face, the provision appears

to support plaintiffs' position. The

provision itself does not indicate,

however, whether it extends to AFROTC

graduates with a four-year commitment

who are later appointed as medical offi-

cers. The Court concludes that a read-

ing of the provision in context and an

examination of its legislative history

reveals that the provision was not in-

tended to apply to medical officers who

are AFROTC graduates

Section 454 (1) (1) codified section

2 of Public Law 85-62, 71 Stat. 206

(1957), which was enacted to continue

many of the provisions of the "Doctor

Draft Act.15 the Senate Report, S.

tSpub. L. 81-779, 64 Stat. 626 (1950).

A-13

Rep. No. 411, 85th Cong., lst Sess.

(1957), is especially instructive re-

garding the purpose of Public Law 85-

62. This law, like the Doctor Draft

Act, authorized the President to make

special draft calls for physicians under

age thirty-five. This authority was

necessary because the military's medical

personnel needs could not be satisfied

through the regular draft. Draft laws

required that men under age twenty-six

be selected first, but most doctors are

past age twenty-six when they complete

medical school. The Senate Report

describes the purpose of the Act as

authorizing the President

- « . to issue special calls

for physicians . . . who are

otherwise liable under the

regular draft. Under exist-

ing law the President has no

authority to induct persons

from among the various age

groups on the basis of their

professional or technical

skill. The bill will pro-

vide such special authority

with regard to physicians

- . . It is expected that

this legislation will operate

in a manner similar to the

doctor draft law under which

commissions will be offered

to all physicians .. . who

are qualified to receive a

commission.

t6See Defendant's Exhibit No. V.

A-14

(Emphasis added). S. Rep.

No. 411, supra, at l.

Section 454(1) (1), upon which

plaintiffs rely, simply authorizes the

President to order to active duty doc-

tors who would have been drafted had

they not instead obtained commissions

as medical officers. The Senate Report

notes that section 454(1) (1) was con-

sidered necessary because

[wJithout this language

there would be no specific

Presidential authority for

call of commissioned offi-

cers and the military ser-

vices would have to rely

solely on the moral comnit-

ment of the men to volun-

tarily enter active service

after they had been given a

commission.

S. Rep. No. 411, supra, at 4. Plaintiffs,

however, had enrolled in AFROTC and ex-

pressly obligated themselves to four

years' active duty. They would not be

subject to any special draft call for

doctors, and they cannot reasonably be

viewed as within the group of commis-

sioned officers intended to be affected

by section 454(1) (1).

This conclusion if supported by

section 454(1)(3). This provision pro-

vides that

[a]ny person who is called

or ordered to active duty...

A-15

from a reserve component of

the Armed Forces ... and

thereafter serves on active

duty (other than for train-

ing) as a medical...

specialist for a period of

twelve months or more shall,

upon release from active duty

or within six months there-

after, be afforded an oppor-

tunity to resign his commis-

sion from the reserve com-

ponent of which he is a mem-

ber unless he is otherwise

obligated to serve on active

military training and service

in the Armed Forces or in

training in a reserve com-

ponent by law or contract.

(Emphasis added). 50 U.S.C.

App. § 454(1) (3).

The qualifying clause at the end of the

provision contemplates that medical

officers may have active duty obliga-

tions pursuant to contractual agree-

ments that are independent and separate

from an active duty obligation, Jmposed

pursuant to section 454(1) (1).

Because section 454(1) (1) itself

authorizes orders for up to two years'

active duty, the qualifying language in

section 454(1)(3) would be unnecessary

unless it contemplated active duty

obligations pursuant to contracts in

t7Tanguage in the Senate Report sup-

ports this reading of the qualifying

clause. See S. Rep. No. 411, supra,

at 6.

A-16

excess of two years. Plaintiffs, who

were not ordered to active duty under

section 454(1)(1), are the type of

medical officers covered by the qualify-

ing language.

The Court therefore concludes that

plaintiffs' four-year active duty obli-

gation is not prohibited by statute and

has not been rescinded. Accordingly,

the Court will deny plaintiffs' motion

for summary judgment and grant defen-

dant's motion for summary judgment.

/s/ OLIVER GASCH

Dated: February 1, 1978.

A-17