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METZ v. UNITED STATES

September 30, 1969

James A. METZ, Plaintiff,
v.
The UNITED STATES of America, Melvin Laird, Secretary of Defense of the United States of America, Louis A. Duke, Jr., Lieutenant Colonel, Pennsylvania Air National Guard Commander and Richard B. Posey, Brigadier General, United States Air Force, Deputy Adjutant General, Pennsylvania Air National Guard, Defendants



The opinion of the court was delivered by: GOURLEY

 This is a Complaint requesting the Court to enjoin preliminarily the enforcement by the named defendants of a military order compelling plaintiff, a member of United States Air Force Reserve and Pennsylvania Air National Guard, to involuntary active duty in the United States Air Force. Subject-matter jurisdiction is founded upon Title 28 U.S.C. § 1331. The matter came on for hearing before this member of the Court on August 21, 1969 at which time the United States Attorney moved to dismiss the Complaint. I am of the opinion the Complaint must be dismissed for the reasons set forth hereinafter.

 As stated in the Complaint, plaintiff, a resident of the State of Pennsylvania, enlisted in the Pennsylvania Army National Guard and United States Army Reserve on November 7, 1963. On January 10, 1966, plaintiff transferred to, and enlisted in, the Pennsylvania Air National Guard and United States Air Force Reserve. He subsequently re-enlisted in the Pennsylvania Air National Guard for the period from January 10, 1969 to January 10, 1970.

 During the period from July 1, 1968 to June 30, 1969, plaintiff was absent from drills on six occasions, thus acquiring one absence in excess of the yearly number permitted by applicable military regulations. Consequently, plaintiff was ordered on July 15, 1969, to report for extended active duty commencing on the 25th day of August, 1969 and terminating seventeen months and six days thereafter, for failure to perform satisfactorily his Reserve obligations in the Pennsylvania Air National Guard. Although the Complaint alleges that said order issued from the Pennsylvania Air National Guard, a copy of said order introduced in evidence as defendant's Exhibit No. 1 clearly establishes its origin at the Air Reserve Personnel Center Headquarters of the Department of the Air Force in Denver, Colorado.

 Plaintiff contends that the order, which was issued pursuant to a law of Congress and executive order effective subsequent to his enlistment both in the Army National Guard and Air National Guard, must be found invalid as abrogating plaintiff's contractual rights arising out of his 1963 and 1966 enlistment agreements. Also, plaintiff contends that he was induced to re-enlist in the Ready Reserve for a period from January of 1969 to January of 1970 upon certain misrepresentations, that he was advised drill absences were to be computed upon plaintiff's anniversary year of service when, in fact, they were computed upon the fiscal year of the Pennsylvania Air National Guard, and that his order to active duty was rendered without due cognizance of personal hardship.

 The question is raised as to whether the Complaint is subject to dismissal for lack of personal jurisdiction over the Secretary of Defense, for failure to state a claim, and/or for want of a justiciable question.

 The Secretary of Defense is not a resident of the State of Pennsylvania, and it is asserted by the United States Attorney that the Court therefore lacks authority to exercise personal jurisdiction over him. Rule 4(e) of the Federal Rules of Civil Procedure contemplates service upon a party not an inhabitant of, or found within, the state where a federal district court is located when a statute of the United States expressly provides for such service. The question arises as to whether Section 1391(e) of Title 28, United States Code does authorize extraterritorial service of process upon the Secretary of Defense in this case.

 Section 1391(e) provides:

 
"A civil action in which each defendant is an officer or employee of the United States or any agency thereof acting in his official capacity or under color of legal authority, or an agency of the United States, may, except as otherwise provided by law, be brought in any judicial district in which: (1) a defendant in the action resides, or (2) the cause of action arose, or (3) any real property involved in the action is situated, or (4) the plaintiff resides if no real property is involved in the action.
 
The summons and complaint in such an action shall be served as provided by the Federal Rules of Civil Procedure except that the delivery of the summons and complaint to the officer or agency as required by the rules may be made by certified mail beyond the territorial limits of the district in which the action is brought."

 Although Section 1391 ostensibly is concerned with venue as distinguished from jurisdiction, Professor Moore concludes that the addition of subsection (e) was, in fact, intended to extend the extraterritorial jurisdiction of federal district courts where each of the named defendants are officers, employees, or agencies of the United States. 2 J. Moore, Federal Practice, paragraph 4.29, at 1210-11 (2 ed. 1967). This is confirmed by a reading of Sen.Rep.No.1992, 87th Cong., 2d Sess., to accompany HR1960, 2 U.S.Code Cong. and Adm.News (1962) p. 2784. I therefore conclude that the Court does have authority to exercise extraterritorial jurisdiction in the circumstances contemplated by Section 1391(e).

 A further question arises as to whether the instant action naming as a defendant the United States as well as officers of the United States falls within the ambit of § 1391(e), which by its express terms applies only to actions in which "each defendant is an officer or employee of the United States or any agency thereof * * *." While the United States is not technically an officer or agency of itself, I conclude that § 1391(e) is intended to apply to the situation where the United States as well as officers, employees and/or employees of the same are named defendants.

 There may well exist in this action a serious obstacle to the granting of any injunctive relief which would bind the Secretary of Defense since the record does not indicate said defendant has been served under Rule 4(d) of the Federal Rules of Civil Procedure or otherwise notified pursuant to Rule 65. Likewise, the record reveals no service upon or notice to the other named defendants in this action. However, the United States was represented by the United States Attorney, who has raised no objection to ...


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