# Brief for the Respondents in Opposition — Scaggs v. Larsen > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385605_0313%3A2 ## Record - **Collection:** Supreme Court brief - **Document type:** Brief for the Respondents in Opposition - **Published:** January 1, 1970 - **Citation:** 400 U.S. 930 ## Text i ae Re BP REY mA % te 4 “oR \ * 4 \; : | fNDEX : ss \ o Pag Opinions below__ __. -- .--.-_-- eee ily efter ss I PR cana ss eh oe I Questidns presented <0 <2 oo 2 enn kan 2 Statutes inv - ed - et rp EP ES Petey OAs Teens tae 2 Statement _«.___- ne ae 3 ime eins teeta | PEEGA LY Gee" pop tie eee 6. Conclusion. ____- , ple tn cgrae ‘10 © rf, ATIONS + Cases: ; es Even v. Clifford, 287 F.-Supp. 33422... me, Fox v. Brown, 402 °F. 2d 837 certiorari So ; 394 US. PE en, Se EE api — 8 ~ Karpinski v. Resor, 419 F. 2d 531________ 8 — Olsen v. Uniled States, 423. IF’. 2d 925______._ : 4) Quaid v. United States, 386 F: 2d 25.-.--.--. 6,9> ° Schwartz v. Franklin, 412-F. 2a.706. 2.22. :. S. United: States v. Lonstein, 370 F.2d 318. = * 5 9 Winters v. United States, 281 F. Supp. 289, affirmed per curiam, 390) I, 2d 879, certionart : denied, 393.US:, 896. /____-.-._.._. &,9 2° Winters. v. United States, 412 F. 2d 140, cer- tiorari denied, 396 U.S. sac Lame eaes 8 Statutes: 10 U.S.C. (Supp. V ) 67a... : ieee ie 4, 5,6, 7,5 50 UBC. App. 456(0)@) (D) is bs ik sige ie ik ce 2-3, 9 «1) Su the Supreme Gourt of the Bnited States an OCTOBER TERM, 1970 Fat a ~ ane No. O12 Wartian! R. Scatas, PETITIONER ai . e LIEUTENANT GENERAL STANLEY LARSEN, COMMANDING GENERAL, ET AL, . a % ; ON PETITION FOR A WRIT OF CERTIORARI TO THE UNILED NPATES COURT OF APPEALS FOR THE NINTH CIRCUIT “\ > BRIEF FOR THE RESPONDENTS IN OPPOSITION OPINIONS BELOW The per curiam opinion of the ceurt of appeals (Pet. App. 1) is: reported at 423°F. 2d 1224, The district — Court Issued no opinion. es | : JURISDICTION The judgement of the court of appeals ‘was entered on April 7, 1970. "On June 94, 1970, Mr. Justice Douglas extended the time for filing acpetition for a writ of certiorari to and including -Septemher 4, 1970.° The petition for certiorari was filed on August. 28, 1970. Phe jurisdiction of this Court is - invoked under 29-U.S.C. 1254(1). o oe ; ha (1) 407-905 —70 ; ; ; to » : \ QUESTIONS PRESEN TED * Ww histhoe petitioner, an Army reservist who failed jom a& reserve unit as lire td, was entitled to an administrative hearing prior toe heing ordered to Re- tive duty. for thi it reason, . 2, Whether the provisions of 10 U.S.C. 673a, en- Army, participate satisfactorily in his reserve unit. lOUSC, (Supp. V) O73a, provides -acted-by Congress after petitioner had enlisted in the could be invoked to’ order. petitioner’ to serve on aetive duty fot failing, after’ the enactment, to STATUTES INVOLVED: abeg (a) Notwithstanding any other provision of law, the President may order to aretive duty any member of the Ready Reserve of an armed foree Wio— ' ; (1) is not assigned ton or participating satis- faetorilivin, a unit of the Ready Reserve: (2) ae hot Fulfilled his -sfatutory reserte obligation: and. >. (33) has net served on active duty fora total of 24 months. re . (b) A niember who is ordered to active duty under this seetion- may be rpquired to serve on active duty until his total/servicé on active ' duty equals 24 months. If iis enlistment or other period of military serkice: would expire hefore he las served the required period under ‘this section, it may be extended until: he has “ served the required period, : & % % . * * v AOL IS.C. App. 456(¢)(2)(D) provides: > Notwithstanding any other provision of this Act, the President, under such rules and regu- * ? ° . gt ag ne “ ? lations as he may prescribe, may previde that » any person enlisted or appointed after Octo- ber 4, 1961, in the Ready Reserve of any reserve component of the-Armed Forces * ** the Army » © National Guaatl, or the Air ‘National Guard, > ** * who fails is serve satisfactorily during his ‘ obligated period of service as a member of such Ready\ Reserve or National Guard or the Ready, Reserve of another. reserve component or -the National Guard of which he becomes a member, may be selected for training and service and inducted inte*the armed force of which such reserve component is a part, prior to the selec- | tion and induction of other. persons liable therefor. | 2 : : STATEMENT Petitioner, a member of the Army Reserve, btought this habeas -corpus action, seeking. release fydin. the restraint allegedly imposed upon him by y ivtue of his. being called to. active duty. On September 30, 1963, petitioner had enlisted in the Ar my Reserve (Com- _plaint, p. 2),' obligating ‘himself to serve satisfac torily until the expiration of his six-year term of enlistment on September 30, 1969 (Pet. 6)..Under the terms of his contract, failure to-serve satisfaeterily would sub- ject him either to an order to perform active duty for a period of forty-five days. (Complaint, p. 2) or ‘to being reported to the Selective Service Sy-tem for priority induction for two full years of active , duty (Pet. 12-13 cay After serv ing three months on active duty for train- a fomplaint” pene are to-the pages of the Petition for Habeas Corpus filed in the district court. “Aflidavit™ references are to the pages of the aflidavit attached to that petition. * “J . a ing (Pet. 7), petitioner was assigned to various con- trol groups (Pet. 7) and was relieved of the obliga- . tion to attend ay dvills or annual training periorls (Affidavit, pp. 1,5). In January 1969, however, peti- tione vy Who: Was then assigned to but wot actively par- ticdpating With a unit- in Pex cas, Was ordered to join by April 11, 1969 a unit m the San Francisco area, phere he was ther residing. Failure to join the unit, he was warned, would result in his heing ordered to active duty for a period of twenty-four months, with credit for any ae of active duty already served (Affidavit, pp. 1-2). Petitioner asserted that he dilipentiy sought to Jom, ®redrve unit in the San Francisco aréa (Complaint; p. 3). He maintained that he was rejected because his employment as a musician required him to be Tree to. travel throughout, the United States'and Europe and would thus interfere with his attendance’ at drills (Complaint, pp. 2. 3: Affidavit, p. 9). As, petitioner thus did not join a reserve unit*by the, required date, he was ordered, on June 10, 1969, to report for active duty for 18 months pets days‘ pursuant. to 10 ULS.C. 675 (Complaint, p. 2; Pet. 8). On July 24, 1969, petitioner filed a petition for ae ’ Petitioner asserted that an addons ground for his rejec- tion was that he had. only fiv® months to serve prio’ to the expiration, of his term of enlistment (Complaint, p. 3). Tow- ever, the affidavit he filed in the district court. makes it clear that the ulfimate obstacle was lis asserted musical ebligations. Petitioner was apparently eredited with over five mouths of previous service on active diity. ~ J L : ; writ ‘of — as Cor pus, “Sse tthe that the order calling him to active duty was invalicl because (1) it was issued without a hearing; (2) it extended his enlist- -ment contract beyond its oteanl expiration, date; (3) the Army’s refusal to grant hima discharge’ ‘because’ of “the contliet between the requirements of his.occu- pation and ‘the desires of the Army?’ was arbitrary: and unreasoge@le and constituted a violation of due. process; (4)@ie refusal of the reserve units to ac-. cept him *tby reason of his occupation and the neces- *% *% %99 sary demands of lis occupation upon his time was invalid; ane (5) 10 U.S.C. 673a Was unconstitu- tional insofar as it. authorized ordering him to active duty for a period in excess of forty-five days (Com- plaint, pp. 3-4). The district court denied petitioner's application for a restraining order and denied reliet on the merits.. | On July 28, 1969, petitioner sought a writ of habeas corpus and a restraining order from the court of “appeals, which treated the petition as an appeal from the distri¢t court order and refused to issue a re- * straining order, On August 5, 1969, Mr. Justice Deuglas ordered that the petitioner be releaged froin all military custody and from compliance With: the order-requiring that die report to active duty, pending. a dete rhaibation ofthe merits by the court of appeals. 396 U.S. 1206.°'The court, of appeals subseque ntly affirmed the district court order denying relief to the petitioner, but stayed its mandate pending the filing and disposition of the present petition for certiorari. horse: 6 ARGUMENT The decisions below-are correct. There is no conflict of decisions, and thus no warrant for fu ther rev lew. ae Petitioner's first contention is that the failure of his militar ‘y superiors .to afford him a hearing prior to ordering him to active duty invalidates tltat order.’ That same contention has been squar ely rejected in Quaid v. United ‘States, 386 F. Ide 25, 27 (C.A. 10). In. any event, for the reasons’ set forth below, this ‘ase presents no occasion for this Court to consider * ; ¢ a) a . . . whether there are any circumstances in which military authorities must hold hearings prior to issuing orders to those already subject to military jurisdiction.’ The statute under which petitioner was ordered to active duty . authorizes: the issuance of such an or der to any: reservist who is either **not assigned to’’ or “not * * * participating satisfagtorily in”? a reserve unit. 10 U.S.C. (Supp. V) 673a: ‘The very. allegations: petitioner made in the district court show that the rea- son forhis failure to meet either of these requirements Was his insistence that he would be unable to attend 4 Petitioner raises no claim, and raises none in the-court. of appeals, that thie failure of the district conrt to afford hin an evidentiary hearing on his petition Tor, habeas (corpus was erroneous. Because no such hearing was held in the district court, the record consists only of papers filed by the petitioner, which do net inglude copies of his enlistment agreement. his enlistment record. or the documents Jeading to and reflecting the issuance of the activation order. ; > Petitioner’s reliance on the selective service cases (Pet. 9- 12) to support the view that-such a hearing was required is misplaced, Tlis status as a inember of the military services renders his claim toca pre-activation hearing significantly less compelling than a draftee’s claim to a pre-induction “hearing. of Ww eekly drills ee cause of the competing demands of his employment as.a musician. Those demands, of courses annot justify his failure to fulfill his voluntarily as- sumed militar v obligations. Contrary to petitioner’s’ assertion (Pet. 14-1: 5), the decision below is not in. conflict with the decisions of | other courts of appeals. At most, the cases he relies upon indicate that a district court—not the military authorities—should hold a hearing” to " determine whether there is a “basis in fact” for a determination resulting in the activation of a reservist. As alr pady stated, petitioner does not. complain of the district court’s failure ‘to“hold a” hearing, and, the eizcan- stanees did not require one. iF inally, even if petitioner's claim to an pe are were - tive hearing in the context of this case has merit, it - would present no. question of prospective significance e. = Por, as petiaoner recognizes, the Army Reserve has — instituted new appeal proceditres for con- teMing a determination of unsatisfactory per formance _ (Pet. 8, n.d; Pet. App. B, pp. ii-iii). While, these procedures do not provide for a hearing, they do af- ford an opportunity to submit e —. Nations and. addi- tional appropriate | doctunents.” 2. Petitioner's remaining contention (Pet. 12-14, 15-16) that his activation under 10°U.S.C. (Supp. V) * Since petitioner's claim to a hearing is not well-founded, we need only note that there is substantial doubt that petitioner was ‘In the “custody” of atiy official in the Northern District gf California, so as to permit the issuance of a writ of habeas. corpus, when, prior to entering on active duty. he brought this action (see opinion of Mr. Justice Douglas'on motion-for stay, “(396 US. 1206). . : . : 673a violates his enlistingnt agreement, was correctly rejected by the courts below. This is essentially the same contention th: it Was mn ule and rejected in Ww ti- fers Vv. United States, PAV F.Supp. 289 Ae aN.Y.), attirmed per daria, 390 BF, 2d STI (CLA. 2), certior a) denied, 593 U.S. 896: F On Ne Drop, “08 FB. 2d 837 (C.A. ?). certiorarl dented, : she US. 958; Nar piashi Vv. Risorv, 419 F. 2d 831 (CLA. 3): Schur urls . Rrauklin, «: . 412 F. 2d 736 €©.A. 9); W bee (ited States, 412 P.. 2a 140 (CLA. 9), certiorari denied, 396 cm: GP), Petitioner voluntarily enlisted, under the condi- tions preseribed: by Taw) and) as: several cases have made clear, the “conditions prescribed by daw"? ine» clude future laws as well as laws ir effect at the time - of enlistinent. Sees c.g., Wiiters ve Mutted Skates, supra, 281 F, Supp. at 295-296; For ve Brown, supra, 402 F. 2d- at S41; Jolensou v. Powell, 414 FL 2d° 1060, 165° (CUA D). This, among the ‘conditions pre- seribed. by aw were the provisions in 10 U.N. (Supp. V,) 673a_ that «Fin Jotwithstanding any other provision of law,va reservist not assigned to a reserve unit or not participating satisfactorily in his reserve unit “may be required to serve on active duty until his total se rview on active duty « equals 24 months. If his enlistment * * * would expire before he has served the required: period under this section, it may be extended until he has served the required period.” Petitioner “As not dl above (nh. 4, supra) petitioners enlistment agree-— ment and fecord were not filed in the district court. We have examinedpetitioner’s enlistment record, howeversand it is in the usual form which provides that lie was enlisting “under the COaaitions prescribed by law @ 5 ss | 9 was pr operly called to activ e duty under this provision. _ Winters v. United States, supra. - . Moreover, under the law-at the time of petitioner’s - een and as it currently stands (50 U.S.C. App. 456 (¢) (2) (D)), a reservist whose performance of his reserve obligation has been unsatisfaetory . is subject to induction into the Armed Forces on a priority basis: by his local draft board. Such induction may be ordered at any time during the reservist’s six- year enlistment, and the reservist may be required to serve two full: years, since the period of such service need not be reduced to give credit for prior active duty. Consequently, there has always been statutory author: ity, although not in fact employed here, to’call up petitioner for a ftll two years of active duty rather than the nineteen months lie has been called upon for under 1 1d U.S.C. 678a. See Winters v. U nited States, supra, 281 F. Supp. at 292.5 : §-Petitioner’s dontention (Pet. 18) that he would have enjoyed greater procedural. rights had he been reported for in-’ duction to his local. draft board pursuant to the provisions of ~ 50 U.S.C, App. 456(c) (2) (D), is erroneous. ‘The procedural right Which he seeks to vindicate here—i.e., his: right to a hear- ing on whether the conditions justifying his activation were: met—would not be available to him under this «alternative procedure, United States v. Lonstein, 370 F. 2d 318 (CA. 2); ‘Even v. Clifford, 287 F. Supp. 334 (S.D. Cal.).’The decisions - upon which he relies, Quaid y. United States, 386 F. 2d 25 (C.A. 10) and Olsen v. United States, 423 F. 2d 925 (C. A. 9), hold - only that the draft board to which’a reservist is certified for induction must pass on his claim of conscientious objection; and not that draft boards are permitted. to -question. the validity 6f the certification itself. 10 CONCLUSION rs For the foregoing reasons, the petition for a writ of . certiorari should be denied. — Respectfully submitted. * Erwin N. Grisworn, Solicitor General. “Wim D. RvutKetsyavus, Assistant Attorney G Genel. Morton Ho.uaNvDER, MicHaen C. Farrar, | rs ae Attorneys. | OctoBEeR 1970. -. - ° a - o. , ; XN + : & a t a c . P > 7 9 . U.S. GOVERNMENT PRINTING OFFIGE: $970 rs ‘7 --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385605_0313%3A2. Public record. Not legal advice.