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NEEL v. PIPPY

March 6, 2003

HARRY NEEL, ROBERT T. STEVENS, AND MARY LOUISE MCDOWELL, PLAINTIFFS,
v.
JOHN R. PIPPY, FRIENDS OF JOHN PIPPY, BENJAMIN RAMOS, AND PAUL GITNICK, DEFENDANTS.



The opinion of the court was delivered by: Arthur J. Schwab, District Judge

MEMORANDUM OPINION

I. Background

A. The Parties

On March 3, 2003, Plaintiffs Harry Neel, Robert T. Stevens and Mary Louise McDowell, all duly registered voters and electors in Pennsylvania's 37th State Senatorial District ("37th District"), filed a verified complaint, motion for temporary restraining order and preliminary injunction, and brief in support of motion for temporary restraining order and preliminary injunction against defendants John R. Pippy, the Friends of John Pippy, his political campaign committee, Benjamin Ramos, acting Secretary of the Department of State of the Commonwealth of Pennsylvania, and Paul Gitnick, Democratic Party candidate for the 37th District.

B. Nature of the Action and Relief Requested

By this action, plaintiffs seek a declaratory judgment that defendant John R. Pippy, Captain in the 99th Regional Support Command Unit of the United States Army Reserves and the Allegheny County Republican Party's candidate for the office of state senator in the 37th District, is prohibited from running for or holding that office while on active duty with his reserve unit. Plaintiffs also seek to enjoin Captain Pippy and the other defendants, the Friends of John Pippy, Benjamin Ramos, and Paul Gitnick from participating in the campaign or proceeding with the special election scheduled for March 11, 2003, by writ of election issued on January 8, 2003, by the President pro tempore of the Pennsylvania Senate, Senator Robert C. Jubelirer. Plaintiffs also request this Court to order that the special election scheduled for March 11, 2003, be cancelled, and that the Court order a new special election to be held at some other time.

Plaintiffs describe the "nature of the action" as follows:

10. This case involves a challenge under Title 10 of the United States Code, 10 U.S.C. § 973 which prohibits a reserve officer of an armed force serving on active duty for [a] period in excess of 270 days from holding or exercising civil office in a State or Commonwealth of the United States.
11. Under these circumstances, the Pennsylvania Election Code prohibits such a candidacy.

Verified Complaint, ¶¶ 10, 11.

C. Federal Question Jurisdiction

Federal question jurisdiction is claimed, predicated on 28 U.S.C. § 1331 ("district courts shall have original jurisdiction of all civil actions arising under the Constitution, laws or treaties of the United States"), and 28 U.S.C. § 2201, authorizing declaratory judgments in a "case of actual controversy within [the district court's] jurisdiction."

D. Scheduling Order

On March 4, 2003, this Court issued a scheduling order directing defendants' responses, plaintiffs' reply thereto, and additionally, directing the parties to address several threshold matters, including: "Whether defendant John R. Pippy's alleged violation of 10 U.S.C. § 973 confers `arising under' federal question jurisdiction on a federal district court under 28 U.S.C. § 1331 and § 2201?" and "Whether an alleged violation of 10 U.S.C. § 973 creates a private right of action that confers standing on plaintiffs to permit them to seek enforcement of its provisions in federal district court?"

E. Amicus Curiae


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