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SHARP v. WEINBERGER

August 30, 1984

ALLEN SHARP, Plaintiff,
v.
CASPAR WEINBERGER, et al., Defendants



The opinion of the court was delivered by: OBERDORFER

 Plaintiff in this action challenges the validity of a Department of Defense regulation requiring that individuals holding Ready Reserve positions in the military be transferred to Standby Reserve or certain other positions if, in their civilian capacities, they hold "key" positions of employment in the federal government. Plaintiff is a federal district judge in Indiana who is also -- at the present time -- an officer in the Air Force Ready Reserve. The Air Force has notified plaintiff of his imminent transfer to Standby Reserve pursuant to the above-mentioned regulation, and has indicated to the Court that it plans to effect the transfer on September 1, 1984. Defendant seeks declaratory relief under 28 U.S.C. §§ 2201, 2202, and injunctive relief under F. R. Civ. P. 65 barring the Air Force from effecting the transfer. The matter is presently before the Court on defendant's motion to dismiss for failure to state a claim upon which relief can be granted under F.R. Civ. P. 12(b)(6).

 I.

 On a motion to dismiss for failure to state a claim, the facts alleged by the plaintiff must be taken as true. According to the complaint and supporting memorandum, plaintiff has been an officer in the Air Force Ready Reserve continuously since June 2, 1969. He currently holds the rank of Lieutenant-Colonel and serves in the capacity of Staff Judge Advocate of the 434th Tactical Fighter Wing at Grissom Air Force Base, Indiana. Since November 1, 1973, plaintiff has also held a commission under Article III of the Constitution of the United States as a Judge of the United States District Court for the Northern District of Indiana.

 
I agree to be a member of the Ready Reserve until 31 Aug 86. I certify that as a member of the Ready Reserve until this date, I am and will remain immediately available for Presidential mobilization and for any reason other than medical or administrative disqualification before expiration of this agreement, I will be retained in the Ready Reserve and assigned to the ready reinforcement personnel section where I will continue to be available for mobilization if the President declares a national emergency.

 Thereafter, on April 6, 1984, the Department of Defense issued DoD Directive 1200.7, which addressed, inter alia, the need to ensure that members of the Ready Reserve would be immediately available for active duty in the event of a mobilization. See Memorandum in Support of Plaintiff's Complaint, Exhibit 2. The Directive, in pertinent part, aims "to preclude conflicts between emergency manpower needs of civilian activities and the military during a mobilization." Id., Exhibit 2, at P E.2.a. The Directive expressly requires that:

 
to ensure that federal employees essential to the continuity of the federal government are not retained as members of the Ready Reserve . . . the Military Department Secretaries shall transfer Ready Reservists occupying key positions to Standby Reserve or the Retired Reserve, or shall discharge them, as appropriate, under 10 U.S.C. 271(b) [].

 Id., Exhibit 2, at PP E.2.b - E.2.b.1. The Directive indicates that certain federal positions "are, by definition, key positions," and it lists federal district judges as falling within this category. Id., Exhibit 2, at 2-1, PP 5, 5(b).

 By a letter dated June 11, 1984, the Air Force notified plaintiff of his imminent transfer to the Standby Reserve pursuant to DoD Directive 1200.7. Plaintiff, who had previously sent a lengthy correspondence to the Air Force contesting the validity of any transfer to the Standby Reserve due to his federal judgeship, requested a delay of the transfer so as to prepare a waiver to be submitted to the Secretary of Defense. By letter dated July 2, 1984, the Air Force explained that plaintiff's previous correspondence had been forwarded to the Judge Advocate General of the Air Force and from there presented to the Office of the Secretary of Defense, from which a denial of a waiver was issued, and that therefore no action to forestall the transfer would be taken. See id., Exhibits 1, 4, 5, 6.

 Plaintiff filed this complaint on July 24, 1984. The Court has now had an opportunity to review the memoranda in support of defendant's motion to dismiss, and the opposition thereto, and for the reasons stated below, finds that the motion to dismiss must be granted.

 II.

 Plaintiff initially claims that DoD Directive 1200.7, as applied to Ready Reserve members who are also federal employees, violates 5 U.S.C. § 5534 (1982), which states that

 
A Reserve of the armed forces may accept a civilian office or position under the Government of the United States . . . and he is entitled to receive the pay of that office or position in ...

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