# Petition for Writ of Certiorari — Clark v. United States

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition for Writ of Certiorari
- **Published:** January 1, 1972
- **Citation:** 409 U.S. 1028

## Text

INDEX

Page
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/ ˙ ˙—5wvi bce we een wee be hw Se 3 1
/ 2
constitutional Provisions
Statutes, Regulations Involved ll 2
r bs ben ee kek Oe oe eee 6 3
Reasons for Granting the Writ ..................... 7
%% ade sak REG Rowe a 0 és we bw Oe 12
Ee ee ee 14
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hisses tke ²•Ü—'dzdd ewes ee ans 20
Ce ee AA 2 23
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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)

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385606_1406%3A1. Public record. Not legal advice.