Petition for Writ of Certiorari — Clark v. United States

INDEX

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constitutional Provisions

Statutes, Regulations Involved ll 2

r bs ben ee kek Oe oe eee 6 3

Reasons for Granting the Writ ..................... 7

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CITATIONS

Cases:

Arvers v. United States

r, ̃ ² 0mm T

Bauman v. Ross

EE A ̃ĩ (.... 11

Bird and Sons, Inc. v. United States

190 Ct Ci 426, 420 F. 2d 1051 (1970) ............ 10

Burtt v. United States

F ᷑]rÜ˙— ² ĩ ]]. 10

Butler v. Perry

, ˙·'wuw- ee 12

Chain Belt Co. v. United States

r ³ è ͥͥͤ aw ew ied 10

Eastport Steamship Co. v. United States

178 Ct Ci 599 372 F. 2d 1002 (1967) ............. 10

Fountain v. United States and Revelopment Lane Agency

r Add 10

Mosca v. United States

189 Ct Ci 283, 417 F. 2d 1382 (1969) ............ 10

Jerry K. Clark et al v Dr. Harold Brown

D ᷑ Kũ JV 8

Service v. Dulles

r 9

United States v. Dickinson

Re OL er.

Vitarelli v. Seaton :

350 US. S35 (1968) 2... ce ee ee cee

Statutes:

Tucker Act, 28 U.S. Code Section 1491 .........., 10

Miscellaneous

Corbin On Contracts,

Vol. 1, Chapter I, Section 3 at pp. 7(1963) ..........9

Uniform Commercial Code,

e eese rte 9

In the Supreme Court of the United States

October Term, 1972

No.

Jerry K. Clark, Kenneth L. Gebhart,

William E. Masters, Harold L. Miller,

John E. Murrell, and Ronald K. Williams,

PETITIONERS,

vs

The United States,

Petition For A Writ of Certiorari to the

United States Court of Claims

Opinions Below

The opinion of the Court of Claims (Appendix A, infra) is

not yet reported. The opinion of the Court of Appeals for the

District of Columbia Circuit in the case of Jerry K. Clark et. al.,

vs Dr. Harold Brown, Secretary of the Air Force is reported in

414 F. 2d 1159. (Appendix B. infra). The memorandum-order

of the district court in the case of Jerry K. Clark et. al., vs Dr.

Harold Brown, Secretary of the Air Force (Appendix C, infra) is

not reported.

Jurisdiction

The judgment of the Court of Claims sought to be reviewed

was entered on June 16, 1972, the date of the decision. The

jurisdiction of this court is invoked under 28 U.S.C. 1255(1).

2

Questions Presented

Whether the Court of Claims has jurisdiction under the

provisions of 28 USC Section 1491 of claims for .

resulting from the breach of the ready reserve contractyaj

obligation between the petitioners and the Air Force by the

illegal recall of petitioners to active duty by the Air Force after

the termination of the Ready Reserve Agreement.

2. Whether the Court of Claims has jurisdiction under the

provisions of 28 USC Section 1491 of claims for

resulting from the failure of the Air Force to adhere to and

abide by its own statutes and regulations in regard to its

Obligations to members of the ready reserve component who

had completed their military service and reserve requirements

and who had become members of the Ready Reserve by

execution of a Ready Reserve Agreement.

3. Whether the Court of Claims has jurisdiction under the

provisions of 28 USC Section 1491 of claims for damages

resulting from the taking of tangible and intangible personal

property by the Air Force in violation of the 5th Amendment

by illegally and improperly forcing the petitioners from their

civilian employments into extended periods of active military

si rvice.

4. Whether the Court of Claims has jurisdiction under the

provisions of 28 USC Section 1491 of claims for damages —

resulting from the subjection of petitioners to involuntary 7

servitude by the Air Force in violation of their rights under the

13th Amendment by forcing them to illegally and improperly

after they had completed all military

service obligations and after their agreement for additional

Amendment V, U.S. Constitution

Amendment XIII, U.S. Constitution

10 USC Section 296 (a) (b) (c) (e) (f) and (g)

10 USC Section 674

10 USC Section 672

28 USC Section 1491

Public Law 89-687, Para E. of Title | of 1967 Appropriation

Act (80 Stat 981)

Air Force Manual 35, Chapter 1, Section 1-1 Air Force Manual

35-3, para 2

The relevant portions of the above provisions are set forth in

Appendix D infra.

Statement of the Case

The six (6) petitioners herein, the plaintiffs below in the

Court of Claims, had all variously been members of the Air

Guard Units of Kansas, New York, and Ohio. These Air

National Guard units were all part of the reserve components of

the United States Air Force and membership in the State Air

Guard Unit, by its terms, also meant membership in the Air

Reserve Forces.

Each of the petitioners had already, at some time prior to

January 26, 1968, completed his military service obligations

and all of his statutory reserve obligations. In each instance the

petitioner's membership in the Air Guard Unit was voluntary

and contractual, and was obtained and thereafter retained by

the execution of a Ready Reserve Agreement“ (AF Form

1051, Appendix E infra) for obligation for a specific period of

time, normally one year.

Each petitioner, upon entrance to his respective Air

National Guard Unit, had executed a Ready Reserve

Agreement, but in each instance the period of time prescribed

in the agreement had expired before the call up by the

Secretary of the Air force on January 26, 1968, and each

petitioner had specifically refused to renew his agreement or to

authorize the continuation of his contractual status as a

member of the Ready Reserve.

Air Force regulations than applicable, promulgated by the

Secretary of Air Force in Air Force Manual 35-3, paragraph

39-7, subparagraph c(2), (a) and (e] required a review of Ready

Reserve Units personnel records once each fiscal year and the

completion of a new “Ready Reserve Agreement” for each

member of the unit. These regulations further Provided that if a

member did not renew his contract or agreement (as was the

case with each of the petitioners) that he be immediately

reassigned to the Standby Reserve by the Air Force without

further action or request on his part.

“4 —

Despite the efforts by the individual petitioners to seve

their connections with the Ready Reserve and not with 9

the Air Force’s own requirements no change was made in the

official reserve status of the petitioners and the Air

Force,unknown to petitioners, continued to im

maintain them as members of the Ready Reserve co

subject to all of the obligations of such classification. (For

various reasons some of the petitioners continued to attend

drills after the termination of their contracts, but contrary to

the specific statements made by the Court of Claims in their

decision below, this was definitely not true of all of them.

Petitioner Williams, for example, notified the Kansas Air

National Guard of his desire to be processed out of the unit and

retained discharge clearance dated August 17, 1967. He cleared

his National Guard Unit on October 27, 1967 and completed all

out-processing requirements by that time. He had not further

contact of any kind with the unit until January 26, 1968, when

ordered to active duty.)

This was the situation then on January 26, 1968, after the

so-called Pueblo Incident’, when the Secretary of the Air

Force, under the authority of Public Law 89-687, issued special

orders activating each of the Air Guard Units herein, and, in

effect recalling each of the petitioners to an extended active

duty status which resulted in all of them being sent overseas,

some to combat zones.

The petitioners objected immediately but were threatened

with courts-martial if they did not proceed as ordered. They

then sought individually to obtain their releases from active

duty through Air Force channels, asserting the expiration of

their Ready Reserve Agreements, but these requests were

eventually and ultimately denied by the Air Force Chief of

Staff.

The petitioners (with the exception of Mr. Miller) then

sought a declaratory judgment from the U.S. District Court for

the District of Columbia (Civil Action No. 1435-68), declaring

that their further retention on active duty in the United States

Air Force was improper and seeking an order directing their

immediate release. This action was commenced in June 1968

and after various proceedings for preliminary injunctive relief

had been largely unsuccessful, a motion for summary judgment

was filed in October 1968.

[In that case the Air Force took the position that the

petitioners had not taken all the necessary steps to effect their

releases from the Ready Reserve, that they must, in addition to

everything else, make application for transfer to the Standby

Reserve. By the time the case was in the Court of Claims two

years later, the Air Force was characterizing its conduct as only

“an alleged administrative error“ in failing to transfer

petitioners to the Standby Reserve.]

On March 26, 1969, the District Court, Judge Gasch, held

in favor of petitioners and against the Air Force (See Appendix

C, infra) and found that the purpose of The Ready Reserve

Agreement and the relevant regulations was that:

.. The government wished to have each Ready

Reservist under a contract which would assure his

availability for at least one year. If a Ready Reservist

refused or neglected to renew his Ready Reserve contract,

he would immediately be transferred 0 Standby by the

appropriate personnel officer. This would result in a

definite list of Air Force personnel under current contract

to respond in the time of need.“

and further:

. Since the regulation requires immediate transfer of

the reservist in question to Standby by action of Air Force

personnel ...the Government cannot rely on its own

inaction and failure to perform under applicable

regulations.“

The judgment of the District Court dated April 4, 1969

ordered the immediate release of petitioners from active duty

and their immediate assignment to the Standby Reserve. The

Air Force, however, obtained a stay of proceedings and

appealed the decision to the Court of Appeals for the District of

Columbia who affirmed, per curiam in a decision rendered on

May 29, 1969. (Appendix B, infra). The Court noted that

.. When they were asked on the occasion of their annual

military personnel record review, to renew or extend their

agreement to stay in the Ready Reserve, they declined to

do so. Since plaintiffs already had the requisite military

service specified by regulations they were entitled to

terminate their Ready Reserve status. We agree with the

reasoning of Judge Gasch that this operated to transfer

plaintiffs outside the group of members who were subject

to call up as members of the Ready Reserve.

“This construction is fortified by the fact, which we

have ascertained on further inquiry, that the standard

By this time petitioners, Clark and Masters, had already

been administratively released because of hardship end

dismissed from the lawsuit, so the judgment technically onty

affected the remaining petitioners, Gebhart, Murrell, and

Williams, who at that time were still on active duty, although

themselves very close to normal! release.

The Air Force moved for summary judgment alleging that

petitioners’ claims sounded in

of the Court wes clear, the Air Force attempted to reassert their

tort allegations in various forms and to even relitigate the

propriety of the call-up itself which had previously been

decided against them by the Court of Appeals.

After arguments on the motions in April, 1972, the Court

of Claims issued its decision on June 16, 1972 granting the

motion of the Air Force for simmary judgment, denying the

cross motion of petitioners, and dismissing the petition for

The Court of Claims apparently has held that there was no

contract between the parties, but only a “consent” by

petitioners to accept service in time of emergency, which

apparently imposed no obligations on the Air Force. The Court

also argued that even if there were a contract it had terminated

three (3) months before the call up to active duty so that the

actions of the Air Force were not a breach at all, but merely a

violation of regulations.

The Court concluded that the petitioners’ claims sound in

tort and that the Court of Claims was, therefore, without

jurisdiction. The Court also concluded, without explanation,

that there was no taking of property within the meaning of the

Fifth Amendment and no involuntary servitude in violation of

the I3th Amendment.

It is from this decision and the consequent judgment that

the petitioners now seek from this Supreme Court a writ of

certiorari to the Court of Claims.

Reasons for Granting The Writ

In the initial stages of this litigation in the district courts,

when the petitioners were merely seeking to obtain their

the existence of a contract at all, but instead the interpretation

of that contract as to its duration and the means of

cancellation. From the briefs and arguments submitted at that

time and from the comments of the Court, it is apparent that

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to so comply with such regulations is an error of law, Vitarelli v.

Seaton 359 U.S. 535 (1959); Service v. Dulles 354

10

or regulation. This would seem to be an effort to focus on the

manner of the breach of the contractual obligation rather than

on the obligation itself.

For the purposes of the Court of Claims’ jurisdiction, it

should not matter how the breach of contract occured, only

that it occured. The Court of Claims itself has repeatedly stated

that an action may be maintained which arises from the breach

of a contractually created duty, even though the damage

sustained by the plaintiffs may have resulted from the negligent

acts of the defendant.

in Bird & Sons inc. v. United States 190 Ct Cl 426, 420 F.

2d 105! (1970), for example, the Court allowed a claim for

damages resulting from the negligent operation of a concrete

mixer truck because it was the result of the negligent manner in

which the defendant performed its contract. The Court

emphasized that: where an alleged ‘negligent’ act constitutes

@ breach of a contractually created duty, the Tucker Act

(2BUSC Section 1492) does not preclude relief.” To the same

purpose, see also Fountain v. The United States and

Redevelopment Land Agency 192 Ct Ci 495, 427 F. 2d 759

(1970); Burtt v. United States 176 Ct Ci 310 (1966); and Chain

Belt Company v. United States 127 Ct Ci 38 (1953).

The apparent underlying basis of the Court of Claims

reasoning in their decision below is that the violation of a

regulation is only a tort, and that the Court does not have

jurisdiction of tort claims. Despite the fact that the Tucker Act

(28 USC Section 1491) specifically grants jurisdiction for claims

founded. . on any regulation of an executive department,”

the Court has consistently held that the alleged improper

application of regulations and the alleged abuse of discretion by

an agency in exercising its regulatory function are

non-compensible. See Mosca v. United States 189 Ct Ci 283,

417 F 2d 1382 (1969) and Eastport Steamship Corp. v. United

States 178 Ct Ci 599, 372 F. 2d 1002 (1967).

Eastport, supra, is perhaps the most eloquent statement of

this position and it is seemingly more than coincidental that it

was cited by the Court for the proposition of tort jurisdiction.

(See Decision, Appendix A, infra)

But this is not a situation where the complaining party has

suffered financial detriment because his license or application

was improperly denied pursuant to regulations having

nationwide application. These regulations are not a part of a

<a. 11

statutory regulatory role. Instead, they detail and define the

by which the Air Force will implement the creation

of its Ready Reserve component and they supplement or flesh

out” the plain language of the Ready Reserve Agreement by

explaining its meaning in the whole statutory scheme. The

regulation does not exist independent of the ready reserve

relationship and cannot be violated unless the agreement

creating that relationship is violated.

The Court of Claims has held that no contract in fact

existed. But they argue, also, in the decision that even if there

were a contract it had terminated three (3) months before the

recall to active duty so it was therefore not breached. This

simply begs the question. The point is that the only time the

petitioners could be recalled to active duty was during the

existence of the agreement. After it terminated, they were not

only immune from recall, but they were automatically

transferred to the Standby Reserve.

The Air Force has never even suggested that the petitioners

could or would be recalled if they were not under contract to

the Ready Reserve. The whole point of the first lawsuit was to

determine if the agreements had terminated and the Courts

found that they had and ordered the petitioners to be released

immediately. To suggest now that even members of the Standby

Reserve could be arbitrarily recalled to active duty at the whim

of the Air Force with total impunity is simply unconscionable.

The Court of Claims found no merit to the petitioners’

claim that there has been a taking of their property in violation

of the 5th Amendment. But man’s labor is his property, as well

as the right to possess, use, and dispose of it. When there is a

taking of such property from the owner by public authorities

for the purpose of public use, the constitutional obligation to

make just compensation arises. This would be particularly true

where the taking was accomplished in an arbitrary, oppressive,

and capricious manner without legal authority.

The Air Force has consistently asserted that since the

petitioners received proper pay and allowances while on active

duty, they have nothing else coming. But when there is a taking

of private property for public use, the value of the property is

not the value to the government but the loss to the party

affected Bauman v. Ross 167 U.S. 548, 574. For all that the

government takes it must pay and that includes not only the

value of the part taken, but also the injury to the part not taken

United States v. Dickinson 331 U.S. 745 (1947).

12

The Court of Claims further found that the petitioners were

not subjected to involuntary servitude in violation of their

rights under the 13th Amendment. This was apparently

predicated on the fact that as commissioned officers they

accepted their appointments for an indefinite term. But by

doing so petitioners certainly did not accept or agree to an

indefinite term of active duty nor to an arbitrary or illegal recai

to active duty when the Air Force or even the President so

chose.

Members of the Standby Reserve may only be involuntarily

ordered to active duty in time of war, or national emergency

declared by Congress, or when otherwise authorized by law.

None of these conditions was met in the instant situation.

The 13th Amendment was neither intended to reduce the

duties of citizens nor to deprive the government of its war

powers, nor its powers for national defense. Butler v. Perry 240

U.S. 328 (1916). Compelled military service is neither

repugnant to a free government nor in conflict with the

constitutional guarantees of individual liberty. The citizen has a

duty to render military service in time of need, and the

government has a right to compel such service. Arver v. United

States 245 U.S. 366 (1918).

But when the means chosen to effectuate the public

interest are unreasonable or when the duties imposed are

arbitrarily enforced even in violation of the statutory schemes

adopted by the government, then those duties no longer exist

and the government's rights terminate.

Military service under such circumstances becomes

enforced, compulsory service and the subjection of one person

to the will of another by threat of overpowering force. We do

not question the initial obligations of the citizen to his

government, but where that obligation is inequitably and

unfairly applied in violation even of the government's own

rules; when, as here, the citizen is forced to illegally serve, then

he should be permitted to have recourse against the government

for all the damages he sustains.

Conclusion

In a recent law journal symposium the Court of Claims was

described as a “unique and permanent contribution” to

American government and as the final protection for the citizen

against arbitrary action, discrimination or oppression at the

hands of the government or government officials.

13

The petitioners herein were all officers in the Air Force

Reserve, who have already in a separate case been found to be

illegally and improperly recalled to active duty, who were sent

overseas, some to combat zones, and who spent over a year and

a half on active duty while litigating in the Courts their rights to

be released all at considerable individual expense to them.

They have now sought damages from the Air Force for

their illegal recall and the Court of Claims has determined that

not only does it not have jurisdiction, but, in effect, no recourse

of any kind exists for them. The Court’s decision seemingly

conflicts with the prior decisions of the District Court and the

Court of Appeals in its analysis of the situation which existed

here and presents significant and important issues which should

now be decided by this Supreme Court.

t is, therefore, respectfully submitted that certiorari should

be granted.

David H. Bodiker

Columbus, Ohio

Dwight A. Teegardin

Columbus, Ohio

Counsel for petitioners

APPENDIX A

in the United States Court of Claims

No. 449-70

(Decided June 16, 1972)

JERRY Kk. CLARK, KENNETH L. GEBHART, WILLIAM E.

MASTERS, HAROLD L. MILLER, JOHN E. MURRELL,

AND RONALD K. WILLIAMS v. THE UNITED STATES

David H. Bodiker for plaintiffs. Dwight A. Teegardin,

attorney of record.

Charles M. Munnecke, with whom was Assistant Attomey

General C. Patrick Gray, //], for defendant.

Before COWEN, Chief Judge, DAVIS, SKELTON,

NICHOLS, KASHIWA, and KUNZIG, Judges.

ON DEFENDANT'S MOTION FOR SUMMARY JUDGMENT

AND PLAINTIFFS’ CROSS-MOTION FOR

SUMMARY JUDGMENT

SKELTON, Judge, delivered the opinion of the court:

The plaintiffs, Jerry K. Clark, Kenneth L. Gebhart, William

E. Masters, Harold L. Miller, John E. Murrell, and Ronald K.

Williams, have filed this suit against the United States claiming

damages in the total sum of $263,935.40 for an alleged breach

of contract. We have concluded that the plaintiffs are not

entitled to recover. The facts are basically as follows. The

plaintiffs were members of the Air National Guard with

membership in the Reserve components of the United States

Air Force. Each of them had executed a Ready Reserve

Agreement as follows:

READY RESERVE AGREEMENT

| agree to (accept) or (retain) membership in the Ready

Reserve for a period to expire on the date of my first

annual Military Personnel Record Review (or the date of

expiration of my enlistment whichever comes earlier),

following the effective date of this agreement.

15

| certify that | am immediately available for extended

active duty (1 in time of war or National emergency

declared by Congress; (2)in a National emergency declared

by the President, or (3)when otherwise authorized by law. |

understand the Air Force can in the event of partial or full

mobilization, order me to enter active military service at

any time during the period of this agreement. | am fully

aware of my eligibility for Standby status under chapter 39,

AFM 35-3, and during the period of this agreement, hereby

waive my rights to Standby status under any criteria for

which | am presently eligible. | understand that:

a. | will not be released from this agreement unless

there is a change in my status, and upon such change, |

submit a request for transfer to the Standby Reserve and

such request is approved under the eligibility criteria

established in chapter 39, AFM 35-3.

b. No request for transfer to the Standby Reserve will

be accepted after the date of an alert or notice of

mobilization.

c. This agreement will become effective on the date

indicated above or the date | am officially assigned

whichever comes later.

d. This agreement terminates upon reassignment from

the Kansas Air National Guard.

Signature of Member

(Signed)

These agreements expired prior to January 26, 1968. The

plaintiffs refused to execute new agreements but continued to

serve in a Ready status, reported for drill, received pay and

allowances therefor, and acquired points for retirement after

their agreements had terminated. All of them were called to

active duty on January 26, 1968, and served in such capacity

until they filed suit in the United States District Court for the

District of Columbia seeking release from active duty. Judge

Gasch of that court ordered the plaintiffs released from active

duty because of the provisions of Air Force Manual 35-3,

paragraph 39-7, subparagraph c (2) (a), which provides in effect

for an annual screening to be made of personnel in the Ready

Reserve, and if the reservist’s Ready Reserve Agreement expires

on the date of the interview or within 12 months thereafter, the

16

reservist will be required to execute a new agreement. If he dogs

not renew his agreement, he will be immediately assigned to the

Standby Reserve. This regulation was not followed in this case,

and the plaintiffs were released from active duty by order to the

District Court.

Thereafter, the plaintiffs filed this suit claiming damages for

lost wages, retirementcredits, job experience and training,

employment and advancement opportunities, loss of the society

of their families, involuntary risk of their lives, deprivation of

property in violation of the Sth Amendment to the United

States Constitution, and involuntary servitude in violation of

the 13th Amendment to the Constitution. The defendant filed a

motion for summary judgment, and the plaintiffs filed a

cross-motion for summary judgment.

The main thrust of plaintiffs’ claims is that the

damages resulted from a breach of the Standby 3

the government. This contention is without merit for several

reasons. The agreement was not signed by the government. it

was more in the nature of a consent by plaintiffs to accept

active service in time of emergency and a waiver on their part of

their rights to Standby status during the period of the

agreement. Even if it could be said that the government became

bound by its acceptance of the agreement, a careful reading of

the document shows that it imposed no obligation on the

government. The plaintiffs say that the Air Force should have

transferred them to the Standby Reserve at the end of their

agreements because of the provisions of the agreements. We find

no such obligation in the agreements, especially in view of the

fact the plaintiffs never requested a transfer to the Standby

Reserve.

Even if it could be said, arguendo, that the agreements

imposed obligations on the Air Force, the plaintiffs have no

claim for breach of contract because the agreements terminated

by their own provisions more than three months before the

plaintiffs were called to active duty. In other words, the events

of which plaintiffs complain occurred long after their Standby

Agreements had expired. Therefore, the action taken by the Air

Force was not a breach of the terminated agreements.

it is clear that the claims of the plaintiffs sound in tort.

They are based on the violation of the above-cited regulation by

the Air Force. This court does not have jurisdiction of tort

claims. See U.S.C.Section 1491; Eastport Steamship Corp. v.

United States, 178 Ct. Cl. 599, 372 F. 2d 1002 (1967).

I This decision was affirmed by the U.S. Court of Appeals for the D.C. Cir.

on May 29, 1969 (414 F. 2d 1159)

17

There is no necessity for us to transfer this case to a District

Court because the Tort Claims Act, 28 U.S.C. Section 2680,

expressly prohibits suits against the United States on:

Section 2680. Exceptions.

The provisions of this chapter and section 1356(b) of

this title shall not apply to

(a) Any claim based upon an act or omission of an

employee of the Goverment, exercising due care, in the

execution of a statute or regulation, * * *

it is fundamental that the government has sovereign immunity

from suits unless such immunity has been waived by an Act of

Congress. It cannot be sued without its consent. See United

States v. Shaw, 309 U.S. 495 (1940) and United States v.

Sherwood,312 U.S. 584 (1941). There is no such consent with

respect to plaintiffs’ claims in the case before us.

There is no merit to plaintiffs’ claims that the government

has deprived them of their property in violation of their rights

under the 5th Amendment to the Constitution. They have not

shown that the government has taken any of their property

within the meaning of the 5th Amendment.

Furthermore, the plaintiffs have failed to show that the

government subjected them to involuntary servitude in violation

of their rights under the 13th Amendment to the Constitution.

They were commissioned Reserve officers appointed by the

President in accordance with 10 U.S.C. Section 593 for an

indefinite term. They accepted the appointments, served on

active duty, and were paid for their service. They served during

the pleasure of the President, as provided by the statute. Under

these circumstances, there was no involuntary servitude. In any

event, such a claim sound in tort and cannot be considered by

this court.

In view of the conclusions we have reached as set forth

above, it is unnecessary to consider other contentions made by

the plaintiffs and the defendant.

The defendant’s motion for summary judgment is granted

and the cross-motion of the plaintiffs is denied, and the

plaintiffs’ petition is dismissed.

APPENDIX B

United States Court of Appeals

For The District of Columbia Circuit

No. 22,906

Jerry K. Clark, et al.,

v.

Dr. Harold Brown,

Secretary of the Air Force,

Appellant

On Appellant's. Motion for Summary Reversal

and Appellees’ Motion for Summary Affirmance

Decided May 29, 1969

Mr. Robert E. Kopp, Attorney, Department of Justice, with

whom Mr. Morton E. Hollander, Attorney, Department of

Justice, was on the motion for appellant. Messrs. David G.

Bress, United States Attorney at the time the motion was filed,

and Frank Q. Nebeker, Assistant United States Attorney at the

time the motion was filed, entered appearances for appellant.

Mr. John II Heise, Jr., with whom Mr. Thomas H. King was

on the motion, for appellees.

Before BAZELON, Chief Judge, LEVENTHAL and

ROBINSON, Circuit Judges.

PER CURIAM: This case involves the question whether

plaintiffs, appellees in this court, are members of the Ready

Reserve of the Air Force or the Standby Reserve. When they

were asked, on the occasion of their annual military personnel

record review, to renew or extend their agreement to stay in the

Ready Reserve, they declined to do so. Since plaintiffs already

had the requisite military service specified by regulations, they

were entitled to terminate their ready reserve status. As District

Judge Gasch pointed out in his opinion, the pertinent Air Force

regulations provide expressly: “If at that time [annual military

personnel record review the member does not renew his Ready

Reserve Agreement, he will be immediately reassigned’’1 to the

Standby Reserve. We agree with the reasoning of Judge Gasch

that this operated to transfer plaintiffs outside the group of

members who were subject to call up as members of the Ready

Reserve.

19

This construction is fortified by the fact, which we have

ascertained on further inquiry, that the standard ready reserve

nt prescribed by regulations only obligates the member

to stay in the reserve for the period expiring with his annual

military personnel record review. The government argues that

the Air Force regulations are for the benefit of the Air Force

not the members of the reserve; that the undertaking of the Air

Force to transfer the member to the standby reserve is not

self-executing and he must also make application therefor. We

attach no decisive consequence to the fact that the members’

position was not set forth in a formal writing Their oral

statements came at a (time) of undoubted significance to all

concerned, the occasion of the annual Military Personnel

Record Review prescribed by regulation pursuant to statutory

provision, see 10 U.S.C. Section 271 (1964). That is enough.

These members of the Ready Reserve are entitled to be treated

as though the Air Force had complied with its own regulations,

including the procedures provided for obtaining the consent of

the governor to the transfer to the standby reserve.

Affirmed

pir Force Manual 35-3, para. 39-7 (c)(2)(a).

APPENDIX C

UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

JERRY Kk. CLARK. ET AL.,

Plaintiffs,

N

No. 1435-68

DR. HAROLD BROWN,

Defendant.

MEMORANDUM-ORDER

This matter came on for hearing on cross motions for

summary judgment. It appears that there is no genuine issue as

to any material fact.

Plaintiffs in this case are Air National Guard officers, all of

whom have previously served on active duty for period in excess

of five years and all of whom were called to active duty

following the Pueblo incident. They contend that this call to

active duty was unlawful in that it was based on their erroneous

classification in the Ready Reserve. Their position is that upon

their refusal to renew a continuation of their contractual status

as members of the Ready Reserve, they should have been

immediately transferred by applicable procedures under

pertinent regulations to the Standby Reserve.

The Government takes the position, however, that when an

Air National Guardsman is a member of the Ready Reserve, he

must take two steps to effect his release from the Ready

Reserve. First he must refuse to renew his contractual

obligation to continue in the Ready Reserve, and second, he

must apply for a transfer to the Standby Reserve. The

Government concedes plaintiffs took the first step but states

that the second step was taken only after these plaintiffs

received a call to active duty. The Government also relies upon

10 U.S.C. Section 269190, which provides that a member of the

Air National Guard of the United States may be transferred to

the Standby Reserve only with the consent of the Governor of

the state concerned.

The regulation on which particular reliance is placed ‘sy the

remaining plaintiffs, Gebhart, Murrell, and Williera (the

is being

new Ready Reserve agreement during the interview.

Subparagraph (2)(a) states that if at that time the member does

Ready Reserve to the Standby Reserve is not in accordance

contract which would assure his availability for at least one

year. If a Ready Reservist refused or neglected to renew his

Ready Reserve contract, he would immediately be transferred

to Standby by the appropriate personnel officer. This would

result in a definite list of Air Force personnel under current

contract to respond in the time of need. No other explanation

has been advanced. This explanation is both logical and

consonant with the statutory scheme. Under familiar principles,

the Secretary is bound by his own regulation. Roberts v. Vance,

119 U.S.App.D.C. 371, 343 F.2d 236 (1964); Service v. Dulles,

Hie

1

5

:

4

APPENDIX D

UNITED STATES

CONSTITUTIONAL PROVISIONS INVOLVED

AMENDMENT V provides in pertinent part:

or shall any person . . . be deprived of life, liberty or

property, without due process of law; nor shall private

property be taken for public use, without just

compensation.

AMENDMENT XIII provides in pertinent part:

“Section 1. Neither slavery nor involuntary servitude,

except as punishment for crime whereof the party shall

have been duly convicted, shall exist within the United

States, or any place subject to their jurisdiction.”

STATUTES INVOLVED

10 U.S.C. 269 provides in part:

“(e) Except in time of war or of national emergency

declared by Congress, a Reserve who is not on active duty.

or who is on active duty for training, shall, upor his

request, be transferred to the Standby Reserve for the rest

of his term of service, if

“(1) de served on active duty (other than

for training) in the armed forces for an aggregate of

at least five years;

de has served on active duty (other

than for training) in the armed forces for at least

one year and has served satisfactorily as a member

of a unit of the Ready Reserve after being

transferred under section 1014(a) of the title 50

for a period that, when added to the period of his

isfactorily completed an

enlistment under section 1014(b) of that title;

“(4) de served on active duty (other than

for training) in the armed forces for an aggregate of

less than five years, but satisfactorily participated,

as determined by the Secretary concerned, in an

accredited training program in the Ready Reserve

for a period which, when added to his period of

active duty (other than for training), totals at least

five years, or such shorter period as the

concerned, with the approval of the Secretary of

Defense in the case of a Secretary of a military

department, may prescribe for satisfactory

participation in an accredited training program

designated by the Secretary concerned;

5) he served on active duty (other than

for training) in the armed forces for an aggregate of

at least 12 months after December 6, 1941, and

before September 3, 1945, and for an aggregate of

at least 12 months after June 25, 1950; or

“(6) he was a member of one or more

reserve components for an aggregate of at least

eight years after September 2, 1945.

“This subsection does not apply to a member of the Ready

Reserve while he is serving under an agreement to remain in the

Ready Reserve for a stated period. (Emphasis added)

“(f) Subject to subsection (g), a member in the

Ready Reserve may be transferred to the Standby Reserve

or, if he is qualified and so requests, to the Retired Reserve,

under such regulations as the Secretary concerned, with the

approval of the Secretary of Defense in the case of a

Secretary of a military department, may prescribe.

“(g) A member of the Army National Guard of the

United States or the Air National Guard of the United

States may be transferred to the Standby Reserve only

with the consent of the governor or other appropriate

“authority of the State or Territory, Puerto Rico, the Canal

25

Zone, or the District of Columbia, whichever is concerned.

Aug. 10, 1956 c. 1041, 70A Stat. 12; Sept. 2, 1958, Pub. L.

85-861, Section 1(4), 72 Stat. 1437.”

10 U.S.C. 674 provides in part:

“(a) Units and members in the Standby Reserve

may be ordered to active duty (other than for training)

only as provided in section 672 or this title.”

10 U.S.C. 672 (referred to in 674) provides in part:

“(a) In time of war or of national emergency

declared by Congress, or when otherwise authorized by law,

an authority designated by the Secretary concerned may

without the consent of the persons affected, order any unit,

and any member not assigned to a unit organized to serve as

a unit, of a reserve component under the jurisdiction of

that Secretary to active duty (other than for training) for

the duration of the war or emergency and for six months

thereafter. However * * *

%] a member of the Standby Reserve may

not be ordered to active duty under this subsection

unless the Director of Selective Service determines

that the member is available for active duty.”

Public Law 89-687, Para. E. of Title | of the 1967

Appropriation Act (80 Stat. 981) provides in part: :

“Notwithstanding any other provision of law, until

June 30, 1968, the President may, when he deems it

necessary order to active duty any unit of the Ready

Reserve of an armed force for a period not to exceed

twenty-four months.”’(Emphasis added)

28 U.S.C. 1491 provides in pertinent part as follows:

“The Court of Claims shall have jurisdiction to render

judgment upon any claim against the United States 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.”

26

REGULATIONS INVOLVED

The applicable regulations are issued pursuant to Title

the United States Code and are found in the Air Force

35. Chapter 1, Section 1-1 of the Manual provides:

“1-1 Applicability. This manual applies to

of the Air Reserve Forces (Air National

Force Reserve) unless otherwise stated. it

all major commands or subordinate

responsibility for units or individuals of the Air

Forces. All reference to units and individuals

National Guard pertain, and are restricted,

Organizations and personnel having Federal recognition.

Except as provided herein, no waiver or exception may be

granted to the provisions of this manual without approval

of HQ USAF or Chief, NGB, as appropriate.” (Emphasis

iz

Te

:

(al

8

7

E

of ANGUS and AF Res units and members.

“2-8. Component. A Regular or Reserve component of

the Armed Services. ANGUS and AFRes are the USAF

those units and members of the Reserve components liable

for AD in time of war, in time of national emergency

declared by the Congress or the President, or when

otherwise authorized by law. Reserve members not assigned

to the Standby or Retired Reserve are placed in the Ready

Reserve.

“2-30. Ready Reserve Agreement. A written agreement

whereby a member of the Air Reserve Forces, not

otherwise obligated for participation as a member of the

Ready Reserve, accepts, or retains membership as a Ready

Reserve for a specific period of time in order to be eligible

for assignment to or retention in a Ready Reserve unit or

mobilization position. The member weives his right to

transfer to the Standby Reserve under any criteria under

which he may be qualified on the date he signs the

agreement or on the date of assignment, whichever, is later

(chapter 32).

27

“942. Standby Reserve. The Standby Reserve consists

of those units or members of the Reserve components liable

for AD only in time of war or National emergency declared

by Congress, or when otherwise authorized by law. Reserve

members not assigned to the Ready or Retired Reserve are

placed in the Standby Reserve.

APPENDIX E

READY RESERVE AGREEMENT

agree to (accept) or (retain) membership in the Ready

Reserve for a period to expire on the date of my first

annual Military Personnel Record Review (or the date of

expiration of my enlistment whichever comes earlier),

following the effective date of this agreement.

| certify that | am immediately available for extended

active duty (1 in time of war or National emergency

declared by Congress; (2)in a National emergency declared

by the President, or (3)when otherwise authorized by law. |

understand the Air Force can in the event of partial or full

mobilization, order me to enter active military service at

any time during the period of this agreement. | am fully

aware of my eligibility for Standby status under chapter 39,

AFM 35-3, and during the period of this agreement, hereby

waive my rights to Standby status under any criteria for

which | am presently eligible. | understand that:

a. Iwill not be released from this agreement unless

there is a change in my status, and upon such change, |

submit a request for transfer to the Standby Reserve and

such request is approved under the eligibility criteria

established in chapter 39, AFM 35-3.

b. No request for transfer to the Standby Reserve will

be accepted after the date of an alert or notice of

mobilization.

c. This agreement will become effective on the date

indicated above or the date | am officially assigned

whichever comes later.

d. This agreement terminates upon reassignment from

the Kansas Air National Guard.

Signature of Member

(Signed)