Plaintiff-appellant, Stephen C. Ansted, brought suit in the district court for declaratory judgment to determine the lawfulness of orders commanding him, a member of the Army Reserve, to involuntary active duty for failure to satisfactorily attend required active duty training. The complaint requested that the district court preliminarily and permanently enjoin the defendants, Army officials, from taking any enforcement action through their officers, agents, and subordinates, with respect to said orders and to declare the active duty orders invalid, void and of no effect.

On May 7, 1969, Ansted was ordered to report for a fifteen-day active duty training period with his reserve unit. Ansted failed to comply with the orders and on June 16, 1969, the appellant's unit commanding officer recommended to higher authority that Ansted be involuntarily ordered to active duty pursuant to Army Regulation No. 135-91 for unsatisfactory participation in the Army Ready Reserve. On October 11, 1969, orders to involuntary active duty were issued directing plaintiff to report not later than November 19, 1969, to Fort Leonard Wood, Missouri, for a period of active duty of one year, five months, and twenty-two days.

The district court judge refused to review the exercise of Army discretion which determined that: (1) plaintiff was physically fit for active duty, and (2) that plaintiff was not properly excused from the fifteen-day active duty reserve training period. Instead, the district judge chose to treat plaintiff's law suit as a mandamus action, see Smith v. Resor, 406 F.2d 14 (2d Cir. 1969), and decided that the evidence before him was unclear as to whether plaintiff was afforded all of his administrative rights pursuant to the Army's own regulations, and ordered the defendants make available to the plaintiff all the procedures which the Army has established for review of the orders to involuntary active duty. The district judge further ordered that plaintiff's orders to active duty be stayed to allow plaintiff to institute an appeal within the Army's procedural structures.

Consequently, plaintiff, pursuant to Army regulations, submitted his request for appeal of his orders to involuntary active duty to his unit commander who forwarded it to the Commanding Officer, United States Army Components Personnel Center. Pursuant to this request, an Army Appeal Board was convened and the Board, after reviewing plaintiff's military personnel records, the letter of appeal and several forwarding command endorsements, recommended that plaintiff's appeal be disapproved. This recommendation was ratified by the convening authority.

Subsequently, Ansted returned to the district court with a petition to further stay his orders past the date the district judge had set to allow Ansted to avail himself of Army procedures. Ansted alleged in his petition for stay that the Army appeal procedures denied him a hearing before the board with assistance of counsel, right of confrontation, and cross-examination and thus were not commensurate with due process, and violated plaintiff's constitutional rights. The district judge found that the Army regulation for appealing involuntary orders to active duty, AR 135-91 (20),2 did not provide for a hearing and other correlative incidents, but provided that appeal should be determined on the basis of written application. The district judge concluded, however, that the plaintiff 'was afforded due process under applicable statutes, military procedures and regulations' and denied the petition for a stay. Ansted appealed and also moved for an emergency stay pending that appeal which this court granted.

The trial judge chose to treat plaintiff Ansted's original complaint challenge, the validity of his orders to involuntary active duty, as a mandamus action. Yet the record on appeal is devoid of any final disposition of plaintiff's complaint and, consequently, we do not have a final order upon which to base our appellate jurisdiction pursuant to 28 U.S.C. 1291. See e.g., McMahan v. Johnston, 163 F.2d 783 (9th Cir. 1947).

We find, however, that Ansted's petition for a stay of his involuntary active duty orders was, in fact, a request to enjoin his orders pending a determination whether the Army appeal procedures deprived him of due process. The district court's denial of the stay order was an interlocutory order refusing an injunction and, therefore, is appealable under 28 U.S.C. 1292(a).

Directing ourselves to the merits of Ansted's appeal, we hold that plaintiff's constitutional rights were not violated by the absence of a hearing, with representation of counsel, right to subpoena, confront witnesses, and present oral evidence, at his appeal of his involuntary activation orders. Neither the statute providing for the activation of reservists, 10 U.S.C. 673(a), nor the regulation setting up the activation procedures, AR 135-91, gives an involuntary activated reservist a right to a personal hearing in such an appeal.3 When Ansted agreed to and signed his enlistment contract, he consented to induction into active service should he fail to participate satisfactorily in the Army Reserves. Cf. Gianatasio v. Whyte, 426 F.2d 908, 911 (2d Cir. 1970). He also contracted to be subject to the statutes and regulations which provide for the appeal of activation orders. While Army Regulation 135-91 does not provide for a personal hearing on appeal, it allows the appellant to include in his appeal in written form all 'appropriate evidence which the applicant may wish to present.' We find that this procedure provided reservist Ansted with sufficient protection of his constitutional rights and hold that a full personal hearing was not required as a matter of contractual law or as a matter of constitutional law. Cf. Gianatasio v. Whyte, 426 F.2d 908 (2d Cir. 1970); Smith v. Resor, 406 F.2d 141 (2d Cir. 1969); Morse v. Boswell, 289 F. Supp. 812, 816, n. 4 (D.Md.1968), aff'd 4 Cir., 401 F.2d 544.

Consequently, we affirm the district court's denial of appellant Ansted's petition for a stay. In addition, we assume that since there is not a final judgment on Ansted's original declaratory judgment complaint, the district court will forthwith issue such final order.

Affirmed.