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CULLEN v. UNITED STATES

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' ...

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