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CARUSO v. TOOTHAKER

September 3, 1971

Leicester F. CARUSO,
v.
Cpt. James S. TOOTHAKER, Commanding Officer, Headquarters Detachment, Pa. Army National Guard, and Secretary of Defense, The Pentagon, Washington, D.C.


Muir, District Judge.


The opinion of the court was delivered by: MUIR

Leicester F. Caruso, a private in the Army National Guard, brings this suit seeking injunctive relief from an order of the Department of the Army directing him to report for active duty in the United States Army for 18 months and 17 days. Jurisdiction is predicated upon 28 U.S.C. §§ 1331 and 1361. After a hearing and argument, we deny the application for a preliminary injunction.

 Criteria for satisfactory participation are set forth in Army Regulation 135-91 (12) which provides:

 
"A member fails to participate satisfactorily when he accrues in any 1-year period a total of five or more unexcused absences from scheduled unit training assemblies. * * *"

 AR 135-91(5)(d) provides:

 
"Satisfactory participation is defined as follows:
 
(1) * * *
 
(2) Attendance at all scheduled unit training assemblies as a member of a paid drill unit of the Army National Guard or Army Reserve, unless excused by proper authority as provided herein. A member present at a scheduled unit training assembly will not receive credit for attendance thereat unless he is in the prescribed uniform, presents a neat and soldierly appearance, and performs his assigned duties in a satisfactory manner as determined by the unit commander. When a member attends a unit training assembly and does not receive credit therefor, he will be charged with an unexcused absence and the unit commander will follow the same procedures applicable when a member fails to attend a unit training assembly."

 Caruso accumulated five unexcused absences from unit training assemblies within a year and has been ordered to report for active duty. After appealing through the appropriate Army channels, he brought this suit to obtain judicial review of the Army procedures and determinations resulting in that order.

 It is well-settled that purely discretionary decisions of military officials within their valid jurisdiction are beyond the permissible scope of review of the Federal Courts. *fn2" Nevertheless, the allowable scope of review extends to the questions (1) whether military orders were "promulgated in violation of the military's own regulation", O'Mara v. Zebrowski, 447 F.2d 1085 (No. 19,288, 3d Cir., 1971), (2) whether procedures employed by the military comport with the requirements of due process in light of the context in which the procedures operate, O'Mara v. Zebrowski, supra (at p. --), Ansted v. Resor, 437 F.2d 1020, 1023-1024 (7th Cir. 1971); Crotty v. Kelly, 443 F.2d 214 (1st Cir. 1971), and (3) whether or not the military has acted within the jurisdiction conferred on it by valid law. Winters v. United States, 281 F. Supp. 289, (E.D.N.Y. 1968) aff'd 390 F.2d 879 (2d Cir. 1968).

 Caruso received his first two unexcused absences when he did not appear for either of the two drill periods scheduled for Sunday, October 11, 1970. After an abnormally extended first pregnancy, plaintiff's wife went into labor on Thursday, October 8 and gave birth at 10:00 A.M. Saturday, October 10. At some time prior to the scheduled morning drill period on October 10, Caruso reached a Sergeant Hall at the National Guard Headquarters Detachment in Harrisburg and obtained oral permission to be absent from both morning and afternoon drill periods on October 10. No mention was made during this telephone conversation of permission to be absent from the October 11 drill periods. Caruso testified that he believed that since the same reasons for his absences on Saturday still existed on Sunday, it was unnecessary to obtain additional permission for the Sunday absences.

 Caruso received his third and fourth unexcused absences on May 15, 1971, when he failed to appear for two drill periods. He had scheduled an appointment with an insurance client for the morning of Saturday, May 15, but had been denied *fn3" permission to be absent and to make up the absence by "equivalent training." *fn4" He was informed that he would receive unexcused absences if he did not appear for the scheduled drill periods, but he elected to take the unexcused absences.

 Caruso received his fifth unexcused absence the following day, May 16, 1971. His unit commander, Captain James S. Toothaker, assigned three reasons for his ...


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