# Petition — Morrison v. Stetson > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385006_0144%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition - **Published:** January 1, 1979 - **Citation:** 444 U.S. 828 ## Text 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.