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PVT. E2 DONALD JACK ANDERSON v. MELVIN LAIRD ET AL. (01/14/71)

January 14, 1971

PVT. E2 DONALD JACK ANDERSON, NG26382581, PLAINTIFF-APPELLANT,
v.
MELVIN LAIRD ET AL., DEFENDANTS-APPELLEES



Hastings, Senior Circuit Judge, Pell, Circuit Judge and Reynolds, District Judge.*fn1 Reynolds, District Judge (concurring in part, dissenting in part).

Author: Pell

PELL, Circuit Judge.

This is one of an apparently growing class of cases involving the claim of interference with constitutional rights, usually multiple, arising out of authoritative discouragement or outright prohibition of the manner and style in which one would adorn himself whether by raiment or natural exfoliation.

In the present case the plaintiff, Donald Jack Anderson, is appealing from an order of the United States District Court for the Northern District of Illinois which denied his motion for a preliminary injunction which would have enjoined Anderson's induction into the United States Army pending the determination of the issues raised in his complaint.

Prior to the events giving rise to his complaint, Anderson was a member of the Illinois Army National Guard. As such, he was a member of the Ready Reserve of the United States Army. 10 U.S.C. § 269(b).*fn2 The issues presented by his complaint deal generally with his right to wear his hair "in a style currently fashionable"*fn3 without interference or adverse action against him by his superiors in the Guard.

Section 673a(a) (1) of Title 10, United States Code, authorizes the President to order to active duty any member of the Ready Reserve who is "not * * * participating satisfactorily" in his reserve duties.*fn4 Such authority has been delegated by the President to the defendant Secretary of Defense and by him to the defendant Secretary of the Army. Exec. Order No. 11366, 3 C.F.R. 312 (Supp.1967), 10 U.S.C. § 673a.

"Satisfactory participation" is defined in Army Regulation 135-91, dealing specifically with reserve components, and Army Regulation 600-20, dealing with all components. Paragraph 5(d) (2) of AR 135-91 defines satisfactory participation to include "attendance at all scheduled unit training assemblies * * * unless excused." No credit for attendance is given a member physically present "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." "Neat and soldierly appearance" is further defined by AR 600-20 para. 31(a), as it read when plaintiff was charged with unsatisfactory participation:

"The hair to include sideburns will be well groomed, cut short or medium length and neatly trimmed at all times."

Anderson's complaint alleges that for four years prior to February, 1970, he had attended all meetings, obeyed all rules and assumed all obligations of his position as a member of the Illinois Army National Guard. On three separate occasions during February and March 1970, he attended training assemblies while wearing his hair "in a style currently fashionable." His unit commander informed him, apparently on each occasion, that his hairstyle violated the regulation. He was declared an unsatisfactory participant. Such declaration caused him to have more than five unsatisfactory attendances in one year*fn5 and thus made him liable to be ordered to active duty in the Regular Army pursuant to 10 U.S.C. § 673a, supra.

On March 30, 1970, plaintiff was informed by the defendant Adjutant General of the Illinois Army National Guard that he would be ordered to active duty and that he could file an appeal. Plaintiff did appeal, claiming that others in his unit had hairstyles similar to his but were not reprimanded in any way. His appeal was denied on July 1, 1970, and Anderson was ordered to active duty commencing July 11, 1970.

This action was filed on July 10, 1970. It seeks orders in the nature of mandamus directing the defendant officers of the Illinois Army National Guard to reinstate plaintiff in the Guard and enjoining the other defendants from ordering Anderson to active duty in the Regular Army.

The district court denied the request for a preliminary injunction on July 10. It is from this denial alone that Anderson now appeals.

The scope of our review of the denial of a temporary injunction is limited. "It is well established that the issuance of a temporary injunction rests in the sound discretion of the trial court. On appeal, an order granting or denying such an injunction will not be disturbed unless there is a clear showing of an abuse of the discretion so exercised." Progress Development Corp. v. Mitchell, 286 F.2d 222, 229 (7th Cir.1961). Discretion is abused only where no reasonable man would take the view adopted by the trial court. Particle Data Laboratories, Inc. v. Coulter Electronics, Inc., 420 F.2d 1174, 1178 (7th Cir.1969).

Among the several factors to be weighed by a district court in granting or denying a preliminary injunction is the probability that plaintiff will ultimately prevail on the merits. Tele-Controls, Inc. v. ...


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