The opinion of the court was delivered by: LUONGO
Gerald M. Mickey, a member of the Marine Corps Reserve, instituted this suit against his commanding officer, Lt. Colonel Lee B. Barkley (incorrectly named Barclay in the caption), and the Commandant of the Marine Corps seeking to void an order issued pursuant to 10 U.S.C. § 673a
ordering him to report for involuntary active duty for 16 months.
The facts as gathered from the evidence at the hearing before me on June 11, 1971 and from records of the Marine Corps filed as part of the record of this case, are the following:
In 1965 Mickey joined the Marine Corps Reserve, signing a six year commitment effective until July 11, 1971. His record in the Reserve was good until the weekends of April 18-19, and May 2-3, 1970, when he failed to attend scheduled drills. He sought to have the absences excused for illness, and presented a doctor's note indicating that he had an "unstable back" and that he was unable to perform his "usual duties." Under applicable regulations an absence would be excused for illness only if the reservist submitted a doctor's statement which clearly certified that the reservist was either hospitalized or not ambulatory during the drill period, or that attendance at drill would be injurious to his health or welfare.
After the first such absence, the commanding officer, by letter dated May 1, 1970, notified Mickey that the doctor's note did not meet the certification requirements for an excused absence; that he was being charged with an unexcused absence; that he could return to satisfactory performance status in the program by reporting for extra instruction or duty (EIOD) on May 18 and 19 (which were week days); and that failure to perform EIOD would subject him to listing as an unsatisfactory participant, in which case involuntary active duty orders would be sought. Following the absence from the drill of May 2-3, by letter dated May 14, 1970, Mickey was notified that he was being awarded another unexcused absence and was directed to report for EIOD on May 25 and 26. On or about May 23, Mickey requested and was granted an extension of time for the performance of the EIOD. He also requested the opportunity to perform that duty on a weekend (rather than on week days) so as not to jeopardize his job. After making the latter request he was instructed to telephone Chief Warrant Officer Krell on the following day to advise him of specific dates on which he could perform the EIOD. Krell was to submit those dates to Col. Barkley for approval. Mickey failed to make the call.
By letter dated June 5, 1970, Col. Barkley notified Mickey that he was an unsatisfactory participant and that he was being recommended for involuntary active duty. The letter advised Mickey that he was entitled to submit a statement in his own behalf for consideration along the chain of command. In a personal meeting thereafter, Col. Barkley encouraged Mickey to submit such a statement. In response, Mickey submitted a report from an orthopedic specialist as to the condition of his back and notified Col. Barkley's office that that was his statement.
On June 25, 1970, Col. Barkley forwarded to the appropriate Marine authorities his recommendation that Mickey be involuntarily activated. Accompanying the recommendation was a comprehensive statement of the facts concerning the missed drills and the failure to perform EIOD; a report from a Navy medical examination dated March 1970 indicating that Mickey had a bad back; a report from a Navy medical examination in June 1970 indicating that he was fit for duty; and the aforementioned report from Mickey's orthopedic specialist. On November 6, 1970, activation orders were issued. On November 18, 1970, Mickey was ordered to report to Camp Pendleton by December 14, 1970. The instant suit was filed December 12, 1970. A temporary restraining order was entered preventing the defendants from moving Mickey from this district. By agreement of the parties, the restraining order has remained in effect until the present.
Mickey has advanced several grounds as bases for relief. He charges that (1) recording his absences as unexcused was arbitrary and capricious; (2) he was denied due process of law because he was denied proper administrative remedies; and (3) 10 U.S.C. § 673a is unconstitutional. He seeks a preliminary injunction to enjoin the defendants from enforcing the activation orders and an order in the nature of mandamus to compel defendants to permit him to complete military appeal procedures. He also seeks to convene a three-judge court under 28 U.S.C. § 2282 to pass upon the constitutionality of § 673a.
Mandamus and Injunctive Relief.
A discretionary judgment of a military officer within the scope of his authority is not reviewable by a federal court. Byrne v. Resor, 412 F.2d 774 (3d Cir. 1969); Smith v. Resor, 406 F.2d 141 (2d Cir. 1969). Denying an excused absence from drills, the order complained of here, is such a discretionary judgment and is not reviewable. Byrne v. Resor, supra ; O'Mara v. Zebrowski, 315 F. Supp. 1195 (E.D. Pa. 1970). Beyond that, since the record in the instant case clearly reveals that the reservist failed to comply with applicable regulations for obtaining an excused absence for illness (Sub-Unit No. 1, Order 1571 R. 2C), his commanding officer's decision not to grant an excused absence could not be said to be arbitrary or capricious. Byrne v. Resor, supra.
In addition to the foregoing grounds for denial of relief, plaintiff failed to exhaust adequate and available administrative remedies, and he is therefore foreclosed from raising in this court any issue relating to the merits of his commanding officer's decisions (a) to record his absences as unexcused, (b) to deny him further opportunity to perform EIOD and (c) to recommend him for involuntary active duty. See Karpinski v. Resor, 419 F.2d 531 (3d Cir. 1969). There were available to plaintiff procedures by which he could have contested each of the commanding officer's decisions. The most common method is referred to in the Marine Corps as "Request Mast." Under this procedure, a marine may request a hearing on any disagreement or grievance with a superior officer before his commanding officer, or before any other superior officer, or with an inspecting general. In making a request for such a hearing, the marine is not required to disclose the purpose of the request except to the authority to whom it is directed. If the marine fails to obtain the relief he seeks in the first instance, he may appeal upon the chain of command to the Commandant of the Marine Corps.
I am satisfied from the evidence adduced at the hearing that Mickey fully understood the nature and purpose of "Request Mast" and that he was fully aware that it was available to him to question each of his commanding officer's decisions.
Another review procedure available to Mickey, insofar as the activation order was concerned, was to submit a statement setting forth his version of the facts relating to his absence from drills and the difficulties relating to his attempts to perform EIOD to remain in satisfactory status. Mickey was not only informed by Col. Barkley's letter of June 5 that he could submit such a statement, he was encouraged to do so.
At no time did Mickey request mast with a superior officer or the inspecting general.
He did take advantage of the opportunity to submit a statement to counter Col. Barkley's recommendation that activation orders be issued, but only to the extent of submitting a medical report. At no time did Mickey ever attempt to raise any issue relating to the events in question other than to assert the adequacy of the medical reasons for his absences from drills. Mickey attempted to explain away his failures to use available administrative remedies by stating that Chief Warrant Officer Krell told him that he had no right to appeal when he talked to him in June 1970 after a drill, but I do not accept that explanation in light of Mickey's admitted knowledge of proper review procedures. His attitude during the period in question was one of apathy and complacency. As an example, he testified that the reason he did not request mast with an inspecting general was because he would have been required to appear in person at headquarters early in the morning to fill out the application and he might thereby have lost some time from work. Considering the seriousness of the consequences of his failure to have the absences excused or to be restored to satisfactory status by performing EIOD (consequences of which he was well aware), Mickey's explanation for his failure to apply for hearing is beyond belief. I find that he deliberately bypassed adequate and available administrative remedies and he is, therefore, foreclosed from raising any issue as to whether the absences should have been excused, or whether he was given adequate opportunity to perform EIOD to return to satisfactory status, or as to the propriety of Col. Barkley's recommendation that involuntary activation orders be issued, or as to the validity of the November 6, 1970 activation order.
Mickey's counsel has argued that Smith v. Resor, supra, dictates that a reservist ordered to active duty is entitled to appeal such decision under the procedures outlined in 10 U.S.C. § 938.
In my view that case is clearly distinguishable on its facts. There, a reservist was ordered to have his long hair cut short. Pertinent regulations permitted long hair if required in civilian employment. The reservist submitted a letter from his business agent that long hair was required in his employment. The commanding officer nevertheless ordered him to cut it and told him he had no rights of review concerning the order. In addition, the commanding officer deliberately withheld the letter from the reservist's file. In ordering that administrative review procedures be made available, the court pointed out that the Army had failed to follow its own procedures and safeguards, and that the commanding officer had effectively foreclosed review of his order by advising the reservist that he had no right to review and by withholding important evidence from his file, contrary to regulations. The facts in the instant case are clearly different. Mickey was aware of the several procedures for reviewing disputes with his commanding officer, and the commanding officer, ...