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CULLEN v. UNITED STATES

United States District Court, Northern District of Illinois


February 22, 1974

EDWARD J. CULLEN ET AL., PLAINTIFFS,
v.
THE UNITED STATES OF AMERICA ET AL., DEFENDANTS.

The opinion of the court was delivered by: Bauer, District Judge.

MEMORANDUM OPINION AND ORDER

This cause comes on the named plaintiffs' motion for an order maintaining the class and to enlarge the preliminary injunction.

This is a civil action against the defendants seeking damages, preliminary and permanent injunctive relief, and a declaratory judgment, to redress the alleged deprivation of the rights, privileges and immunities guaranteed by the first, fourth, fifth, eighth and ninth amendments to the Constitution of the United States to the named plaintiffs and to all other persons similarly situated. More specifically the plaintiffs on behalf of themselves and the class they seek to represent request this Court to enjoin the defendants from enforcing Air Force Regulation 35-10, which prohibits reservists, with certain exceptions, from wearing wigs while attending drills, and from enforcing any military regulations promulgated by the Air Force pursuant to 10 U.S.C. § 673(a), 50 U.S.C.App. § 456(c)(2)(D). Also the plaintiffs request this Court to declare that Air Force Regulation 35-10 is in excess of the statutory authority conferred upon the defendants and is in violation of the Constitution of the United States. The jurisdiction of this Court is allegedly invoked pursuant to 28 U.S.C. § 1346(a)(2), 1651, 2201, and 2202.

The named plaintiffs are citizens of the United States and residents of the State of Illinois. The plaintiffs are members of the Illinois Air National Guard, stationed for their reserve obligations at O'Hare Field Airport, Chicago, Illinois.

Pursuant to Rule 23 of the Federal Rules of Civil Procedure, the plaintiffs bring this action individually and on behalf of all other persons similarly situated. The class of plaintiffs consists of those persons who are members of units of the Illinois Air National Guard assigned to and headquartered at O'Hare Field Airport, and who are presently subject to or in the future may be subject to, punitive measures as a consequence of violation by such persons of Air Force Regulation 35-10 or who have relinquished or may relinquish in the future, alleged constitutional rights as mandated by Air Force Regulation 35-10, such relinquishment being made so as to avoid alleged punitive measures.

The defendants are as follows:

  The defendant United States of America was
  represented in the exercise of its national
  sovereignty by the United States Air Force.

  Defendant John L. McLucas has represented the United
  States Air Force in his official capacity as
  Secretary of the Air Force, and as such is authorized
  to promulgate and enforce official regulations.

  Defendant Col. Warren Bristow represented the
  Illinois Air National Guard in his official capacity
  as Commanding Officer, 126th Air Refueling Wing. The
  126th Air Refueling Wing is the parent unit for all
  other units at O'Hare Field Airport. Col. Bristow is
  the Commanding Officer with authority over all units
  of the Illinois Air National Guard at O'Hare Field
  Airport.

  Defendant Maj. Walter Dobrowolski represented the
  Illinois Air National Guard in his official capacity
  as Commanding Officer, 217th Electronics Installation
  Squadron.

  Defendant Col. Pereckas represented the Illinois Air
  National Guard in his official capacity as Commanding
  Officer, 126th Consolidated Aircraft Maintenance
  Squadron.

  Defendant Maj. Alexander represented the Illinois Air
  National Guard in his official capacity as Commanding
  Officer, 126th Communications Flight.

  Defendant Col. Joseph Laberg represented the Illinois
  Air National Guard in his official capacity as
  Commanding Officer, 126th Combat Support Squadron.

The plaintiffs in their complaint allege inter alia the following facts:

  1. Plaintiffs Satler and Francella individually, and
     members of the class they represent, have been
     threatened with, or are subject to, punitive
     involuntary activation as a consequence of
     accumulated unexcused absences from drills, such
     absences having been awarded for repeated failures
     to comply with Air Force Regulation 35-10,*fn1 in
     that they have worn to drills a short hair wig to
     cover hair otherwise in possible violation of Air
     Force Regulation 30-1.*fn2 Plaintiffs Cullen,
     Turley, Satler, Anderson and Frangella,
     individually, and members of the class they
     represent, have been awarded unexcused absences
     from drills for wearing a short hair wig to cover
     hair otherwise in possible violation of Air Force
     Regulation 30-1 while in attendance at such
     drills. Plaintiff Kozmin, individually, and
     members of the class he represents, have been
     threatened with unexcused absences as a
     consequence of the continued failure to refrain
     from wearing a short hair wig to cover hair
     otherwise in possible violation of Air Force
     Regulation 30-1 while in attendance at drills.
     Plaintiffs Battaglia,

     O'Brien, and Pickens, individually, and members of
     the class they represent, have been chilled in the
     exercise of constitutionally protected activity in
     that they have been intimidated from wearing a
     short hair wig as a means of obtaining compliance
     with Air Force Regulation 30-1.

  2. Plaintiffs, individually, and members of the class
     they represent, desire to wear long hair in
     civilian life, as a measure of personal privacy,
     autonomy, and liberty. Plaintiffs, individually,
     and members of the class they represent, desire to
     wear short hair wigs at unit drills and also at
     annual two week summer camp. Plaintiffs,
     individually, and members of the class they
     represent wear long hair to facilitate the
     exercise of their rights to freedom of association
     among individuals and groups with whom they prefer
     to associate in private life. Plaintiffs,
     individually, and members of the class they
     represent, wish to wear long hair to express
     certain political and cultural opinions and to
     protest certain mores, standards and conditions of
     our society.

  3. Plaintiffs, individually, and members of the class
     they represent, will suffer irreparable harm if
     they are expelled from drills or from annual
     summer camp and denied credit for attendance, in
     that they will face punitive involuntary
     activation, will have their records marred, and
     will have their opportunity diminished for
     promotion and for obtaining similar discretionary
     benefits. Plaintiffs, individually, and members of
     the class they represent, will suffer irreparable
     harm if they are forced to or intimidated into
     cutting their hair, in that they will be deprived
     of their personal privacy, freedom of association
     and freedom of expression. Plaintiffs,
     individually, and members of the class they
     represent, have no other adequate or effective
     remedy at law for the injuries suffered and
     threatened, and such injuries will continue unless
     relief is granted by this Court.

  4. The challenged regulation is in excess of the
     authority conferred upon Defendants by 10 U.S.C. § 280
     and 673(a) in that the purpose and effect of
     the regulation is to regulate the civilian life of
     the Plaintiffs, individually, and of members of
     the class they represent, even though, when
     wearing a short hair wig, each person would
     present a neat and soldierly appearance, and
     otherwise be in conformity with the standards of
     Air Force Regulation 30-1. The regulation banning
     wigs is unconstitutional on its face and as
     applied in that it violates the freedoms of speech
     and expression guaranteed by the first amendment,
     the right of privacy guaranteed by the fourth
     amendment, & the substance of due process as
     guaranteed by the fifth amendment. The regulation
     banning wigs is unconstitutional on its face and
     as applied in that it violates equal protection,
     being arbitrary, based on capricious and
     unreasonable categories and being not reasonably
     related to any valid governmental function in
     regulating the Plaintiffs, individually, and
     members of the class they represent, as
     reservists, thereby working an invidious
     discrimination against them. The regulation
     banning wigs is unconstitutional on its face and
     as applied in that the imposition of involuntary
     punitive activation is a cruel and unusual
     punishment for the wearing of a short hair wig, as
     protected by the first, fourth, and fifth
     amendments, such punishment being proscribed by
     the eighth amendment. The regulation banning wigs
     is unconstitutional on its

     face and as applied in that it deprives the
     Plaintiffs, individually, and members of the class
     they represent, of rights to the pursuit of life,
     liberty, and happiness as reserved to the people
     by the ninth amendment. Plaintiffs, individually,
     and members of the class they represent, have no
     further administrative remedies.

  5. Plaintiffs, individually, and on behalf of all
     other persons similarly situated, pray this Court
     to:

     (a) enter judgment in favor of each named
     Plaintiff and identified members of their class
     against the Defendant United States of America in
     the amount of $5,000.00.

     (b) issue a preliminary injunction against each of
     the named Defendants enjoining each of them from
     enforcing Air Force regulations, including but not
     necessarily limited to, AFR 35-10, which prohibit
     Plaintiffs, individually, and members of the class
     they represent, from wearing short hair wigs to
     cover long hair while attending drills and annual
     summer camp.

     (c) issue a permanent injunction against the named
     Defendants enjoining each of them, their employees
     and agents, from enforcing Air Force regulations,
     including but not necessarily limited to AFR
     35-10, which prohibit or limit the rights of
     reservists to wear short hair wigs to cover long
     hair while attending drills, annual summer camp,
     and other official reservist functions and
     activities.

     (d) declare the Air Force Regulation 35-10 to be
     in excess of Defendants' statutory authority.

     (e) declare the Air Force Regulation to be
     unconstitutional.

     (f) enjoin Defendants, their agents and employees
     from attempting to regulate or limit the length of
     hair a reservist may maintain under his wig.

     (g) enjoin Defendants from exercising the
     authority granted pursuant to 10 U.S.C. § 673(a) to
     order Plaintiffs, individually, and other persons
     similarly situated as members of the class they
     represent, to punitive involuntary activation for
     an accumulation of unexcused absences based on the
     wearing of a short hair wig.

     (h) grant Plaintiffs attorneys fees and court
     costs for maintaining this action.

The named plaintiffs in support of their instant motion to maintain this suit as a class action and enlarge the preliminary injunction contend that the plaintiff class meets all the requirements of Rule 23 and that in the interests of justice the preliminary injunction should be enlarged to include all class members.

The defendants in opposition to the instant motion contend that the plaintiff class fails to meet the requirement of Rule 23(a) and that this Court should dissolve the preliminary injunction and refrain from exercising its discretionary jurisdiction because plaintiffs have adequate remedies within the military system which they have failed to exhaust.

I. REQUIREMENTS FOR THE MAINTENANCE OF A CLASS ACTION

In order for a class action to be the proper mechanism for adjudicating a controversy, the following requirements of Rule 23(a) must all be satisfied:

  1. The class must be so numerous that joinder of all
     members would be impracticable.

  2. There must be questions of law or fact common to
     the class.

  3. The claims or defenses of the representative
     parties must be typical of the claims or defenses
     of the class.

  4. The representative parties must fairly and
     adequately protect the interests of the class.

In addition one of the provisions of Rule 23(b) must be satisfied. The plaintiff has stated that the purported class of plaintiffs is brought pursuant to the requirements of Rule 23(b)(3) which provides:

  "the court finds that the questions of law or fact
  common to the members of the class predominate over
  any questions affecting only individual members, and
  that a class action is superior to other available
  methods for the fair and efficient adjudication of
  the controversy. The matters pertinent to the
  findings include: (A) the interest of members of the
  class in individually controlling the prosecution or
  defense of separate actions; (B) the extent and
  nature of any litigation concerning the controversy
  already commenced by or against members of the class;
  (C) the desirability or undesirability of
  concentrating the litigation of the claims in the
  particular forum; (D) the difficulties likely to be
  encountered in the management of a class
  action."

II. THE PURPORTED PLAINTIFFS' CLASS MEETS ALL THE REQUIREMENTS
    OF RULE 23(a) and (b)(3)

A. Definition of the Class

The named plaintiffs have suggested three definitions for the proposed class:

  (1) All Illinois Air National Guardsmen headquartered
  or stationed at O'Hare Field Airport who wore and
  were prevented from or punished for wearing short
  wigs at any time during the six year period prior to
  the commencement of this action on October 31, 1973.

  (2) All Illinois Air National Guardsmen headquartered
  or stationed at O'Hare Field Airport in active
  service as guardsmen who wore and were prevented from
  or punished for wearing short hair wigs up to the
  time this Court entered its order of November 1,
  1973.

  (3) All Illinois Air National Guardsmen headquartered
  or stationed at O'Hare Field Airport still in active
  service as guardsmen at the time this Court entered
  its order of November 1, 1973, and for one year prior
  to November 1, 1973, who wore and were prevented from
  or punished for wearing short hair wigs.

The named plaintiffs alleged that pursuant to Rule 23 of the Federal Rules of Civil Procedure, they are bringing this action individually and on behalf of all other persons similarly situated. It is apparent to this Court that the only persons similarly situated to the named plaintiffs are those members of the Illinois Air National Guard who were stationed or headquartered for their reserve obligation at the O'Hare Field Airport on the date that this action was filed October 31, 1973.

Any definition of the class which involves a retroactive inclusion of all Air National Guardsmen who during a period of time prior to the filing of this action may have been subject to punitive measures as a consequence of violation of Air Force Regulation 35-10, is not a proper definition of those similarly situated to the named plaintiffs at the time they instituted the instant action. In fact, the inclusion in this class action of persons who were not members of the respective Air National Guard Units at the time the instant action was filed would only obfuscate the issues and unnecessarily complicate the instant action.

It is clear to this Court that the only proper and just definition of the instant class is all members of Illinois Air National Guard units who were stationed or headquartered at the O'Hare Air Field at the time this action was filed and who are presently subject to or in the future may be subject to punitive measures as a consequence of a violation of Air Force Regulation 35-10, or who have relinquished or may relinquish in the future alleged constitutional rights because of Air Force Regulation 35-10.

This definition of the class is carefully drawn so that it will not only insure the proper representation of the class by the named plaintiffs, but also allow a class which is in reality similarly situated to the named plaintiffs. This Court will thus consider only whether a class such as just defined by this Court should be allowed in accordance with Rule 23 of the Federal Rules of Civil Procedure.

B. Joinder of All Members is Impracticable

One of the essential criteria governing the propriety of a class action, and one of the safeguards against its indiscriminate use to avoid joinder is that the membership of the class must be so numerous as to make it impracticable for the named plaintiffs to bring all before the court. Matthies v. Seymour Mfg. Co., 270 F.2d 365 (9th Cir., 1959) reconsideration denied 271 F.2d 740, certiorari denied 361 U.S. 962, 80 S.Ct. 591, 4 L.Ed.2d 554.

The defendants have polled 1,088 members of the respective units at their monthly drills as to whether they "each will wear a wig which conforms to Air Force hair style regulations so as to cover his natural hair which does not or may not conform to such regulations." There were 325 guardsmen or 29.8% of all those polled who stated they would wear such a short hair wig regardless of whether the question was improperly phrased, as contended by the named plaintiffs. There appear to be at least 325 persons in the putative class. Although mere numbers should not be the sole guideline as to the practicality of joinder, these figures indicate that joinder of all members of the class would clearly be impracticable. See DeMarco v. Edens, 390 F.2d 836 (2nd Cir., 1968); Fidelis Corporation v. Litton Industries, Inc., 293 F. Supp. 164 (S.D.N.Y., 1968); Cannon v. Texas Gulf Sulphur Company, 47 F.R.D. 60 (S.D.N.Y., 1969).

As a practical matter, the capacities of even the best judges and jurors to absorb the factual situation presented are finite and the capacity of a courthouse does not begin to reach that of a coliseum. Joinder of all members of the putative class is impracticable because it would stretch the facilities and abilities of this Court beyond their elastic limit.

C. There are Common Questions of Law or Fact

The crucial legal question to the instant action is the validity and constitutionality of Air Force Regulation 35-10. This is the overriding common legal question which must be considered to predominate over any questions affecting only individual members. A finding by this Court as to the validity and constitutionality of Air Force Regulation 35-10 will essentially dispose of all other questions of law. Thus it is clear that there is a common question of law.

D. The Claims or Defenses of the Representative Parties are
   Typical of those of the Class

The requirement that the representatives of the class have claims which are typical of the claims of the class has been construed to mean that the representatives must not have interests antagonistic to or in conflict with those they seek to represent. Mersay v. First Republic Corporation, 43 F.R.D. 465 (S.D.N.Y., 1968). Courts have broadly construed this requirement in light of the trial court's ability to make use of the flexibility available to it and so important to the proper application of Rule 23. See Green v. Wolf Corporation, 406 F.2d 291 (2nd Cir., 1968). In this case, the issues to be tried are quite narrow and there are no apparent conflicts between the named plaintiffs and other class members.

E. The Named Plaintiffs Appear to be Able to Provide Fair and
   Adequate Protection of the Interests of the Class

The named plaintiffs contend that they will fairly and adequately represent the class. An essential concommitant of adequate protection is that the party's attorney be qualified, experienced, and generally able to conduct the proposed litigation. Additionally, it is necessary to eliminate so far as possible the likelihood that the litigants are involved in a collusive suit or that the named plaintiffs have interests antagonistic to those of the remainder of the class. In this case, there is no indication that the named plaintiffs' attorneys do not satisfy these requirements or that the named plaintiffs have interests antagonistic to those of the remainder of the class.

F. In the Instant Action it is Clear that Common Questions
   Predominate and that a Class Action is a Superior Means of
   Litigation

It is clear that the common question of whether Air Force Regulation 35-10 is valid and constitutional predominates over any possible individual questions. A class action is superior to other methods available for a fair and efficient adjudication of the instant controversy. The time, energy and expense of not only the litigants, but also this Court will be saved by having this action maintained as a class action.

After considering the above matters, this Court concludes that the class as defined by this Court hereinabove satisfies all the requirements of Rule 23(a) and (b)(3). Accordingly, this suit should be maintained as a class action, with the class defined as set out hereinabove.

III. THE PRELIMINARY INJUNCTION IS PROPER AND SHOULD BE ENLARGED
    TO PROTECT ALL MEMBERS OF THE CLASS

The defendants contend that this Court should dissolve the preliminary injunction and refrain from exercising its discretionary jurisdiction because plaintiffs have adequate remedies within the military system which they have failed to exhaust.

In support of this contention, the defendants allege:

  (1) Plaintiffs have failed to utilize Article 138 of
  the Uniform Code of Military Justice.

  (2) Plaintiffs have failed to invoke or exhaust
  administrative appeal procedures under 10 U.S.C. § 673(a).

  (3) Plaintiffs have failed to utilize the Air Force
  Inspector General complaint system.

  (4) Plaintiffs have failed to apply to the Air Force
  Board for correction of military errors.

  (5) Assuming plaintiffs are involuntarily activated
  and refuse to comply with the wig regulation,
  court-martial proceedings will permit plaintiffs to
  litigate the constitutionality of Air Force
  Regulation 35-10.

  (6) Plaintiffs have failed to utilize the
  administrative remedy permitting them to transfer to
  other ready reserve components whose regulations
  permit the wearing of wigs to cover long hair.

While not ruling on the propriety of the defendants questioning this Court's prior order granting a preliminary injunction in their response to the instant motion, it is clear that this Court should explicitate its reasons for granting a preliminary injunction in the instant action.

The instant preliminary injunction was granted against the defendants in order to protect putative rights and the military status of the named plaintiffs until this Court decides the issues in question. There was a twofold basis for this ruling.

First, there is a recent trend in the case law which would seem to support the proposition advocated by the plaintiffs. In so far as members of the Armed Forces Reserves are concerned, who under their contracts are allowed to work and live in civilian society for the vast majority of the time, the right to wear their hair as they please is not so trivial as to be denied without sufficient service-connected reasons. See Friedman v. Froehlke, 470 F.2d 1351 (1st Cir., 1972); Harris v. Kaine, 352 F. Supp. 769 (S.D.N.Y., 1972); Schreiber v. Wick, 362 F. Supp. 193 (N.D.Ill., 1973); cf. Anderson v. Laird, 437 F.2d 912 (7th Cir., 1971).

Second, the United States Army in a recent change to Army Regulation 600-20 (chapter 5) granted to Army reservists exactly what these reservists seek. The conflicting policy between branches of military service concerning the grooming of reservists might well involve constitutional problems of equal protection and due process.

It must be remembered that the instant preliminary injunction was granted to protect the putative rights and military status of the named plaintiffs until this Court decides the issues in question. The administrative remedies suggested by the defendants are not only inadequate remedies given the fact that the plaintiffs seek to challenge an established military regulation, but also some of these alleged administrative remedies would seriously jeopardize the rights and military status of the plaintiffs. It is clear that the only real remedy which will not seriously jeopardize the plaintiffs' rights and military status and which will effectively and efficiently provide a forum for the proper litigation of the plaintiffs' rights is the instant action. It is equally clear that the preliminary injunction should be enlarged to protect the putative rights and military status of the members of plaintiffs' class.

Accordingly, it is hereby ordered:

  (1) that the plaintiffs motion that the instant suit
  be maintained as a class action, as defined above, is
  granted; and

  (2) that until the issues of the instant action are
  resolved, the defendants and their agents, servants
  and employees are enjoined from enforcing any
  regulations, orders, and/or policies of the Illinois
  National Air Guard or the United States Air Force
  which prohibit the members of the plaintiff class
  while attending monthly drills and annual training as
  reservists from wearing short hair wigs to cover long
  hair.


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