CASE STUDIES IN EMERGENCY ELECTION LITIGATION

Federal Judicial Center 5/1/2023 1

Serving in the Army Reserves 

While Running for Office 

Neel v. Pippy (Arthur J. Schwab, W.D. Pa. 2:03-cv-302) 

Eight days before a special election to fill a vacancy in Pennsylvania’s senate, three voters filed a federal complaint to block the election of a candidate who was a reserve officer recently called to active duty, claiming that the candidacy violated the Military Code. 

The district court ordered immediate briefing and held a hearing 

three days later, after which the court concluded that the Military 

Code did not afford the plaintiffs a private right of action for their 

case. The military granted the candidate a waiver, and he won. 

Subject: Getting on the ballot. Topics: Getting on the ballot; 

intervention. 

On March 3, 2003, eight days before a special election to fill a vacancy in 

Pennsylvania’s senate, three voters filed a federal complaint in the Western 

District of Pennsylvania seeking to block the election or the candidacy of the 

Republican nominee, alleging that section 973 of the Military Code forbade 

reserve officers on active duty, such as the candidate, from holding office, 

such as the candidate was seeking.1

 With their complaint, the plaintiffs filed a 

motion for a temporary restraining order and a preliminary injunction.2

The senate district at issue included southern communities in Allegheny 

County and parts of Washington County.3

 The Republican candidate was 

already serving in Pennsylvania’s house of representatives.4

 A captain, he was 

called to active duty in February, shortly after he was named the Republican 

nominee.5

The court assigned the case to Judge Arthur J. Schwab, who issued a 

scheduling order the next day.6 Defendants’ briefs were due on the afternoon 

of March 5, a reply brief was due on the morning of March 6, and the hearing was set for the afternoon of March 6.7

 Judge Schwab directed the parties 

to brief the court’s jurisdiction over the controversy.8

1. Neel v. Pippy, 247 F. Supp. 2d 707, 708 (W.D. Pa. 2003); Docket Sheet, Neel v. Pippy, 

No. 2:03-cv-302 (W.D. Pa. Mar. 3, 2003); see 10 U.S.C. § 973; see also Vince Guerrieri, 3 Voters Sue to Stop 37th District Election, Pittsburgh Trib. Rev., Mar. 4, 2003. 

2. Neel, 247 F. Supp. 2d at 708; Docket Sheet, supra note 1. 

3. See Guerrieri, supra note 1. 

4. See id. 

5. See id.; Vince Guerrieri, Pippy Likely to Stay in Race, Pittsburgh Trib. Rev., Mar. 6, 

2003 [hereinafter Pippy Likely]. 

6. Docket Sheet, supra note 1; Interview with Hon. Arthur J. Schwab, Oct. 23, 2012 (noting that the case must have been filed late in the day, because otherwise he would probably 

have issued his scheduling order on the day that the case was filed). 

Tim Reagan interviewed Judge Schwab for this report by telephone. 

7. Neel, 247 F. Supp. 2d at 708–09; Docket Sheet, supra note 1; see Guerrieri, Pippy Likely, 

supra note 5. 

8. Interview with Hon. Arthur J. Schwab, Oct. 23, 2012. 
Serving in the Army Reserves While Running for Office 

2 Federal Judicial Center 5/1/2023 

The case was filed during Judge Schwab’s first year on the bench, but his 

private practice had included extensive experience with injunctions.9

 It was 

his practice as a judge to implement procedures to join the issues quickly.10

The president pro tempore of Pennsylvania’s senate moved to intervene 

or appear as an amicus curiae, and Pennsylvania’s attorney general moved to 

appear as an amicus curiae.11 Judge Schwab allowed both to appear as amici.12 After the hearing, Judge Schwab ruled that the Military Code did not afford the plaintiffs a right of action for the relief sought.13 Judge Schwab determined that it was not for his court to declare whether the candidate had to 

choose between the army reserves and Pennsylvania’s senate or which the 

candidate had to choose.14 The plaintiffs decided not to appeal.15

The defense department granted the candidate a waiver from the requirements of section 973, so long as he did not actively campaign,16 and he 

won the election.17

9. Id.

10. Id. (noting that it was also important to minimize the court’s part in the election story). 

11. Neel, 247 F. Supp. 2d at 708–09; Docket Sheet, supra note 1. 

The attorney general, D. Michael Fisher, is now a circuit judge in the Third Circuit. Federal Judicial Center Biographical Directory of Article III Federal Judges, 

www.fjc.gov/history/judges.

12. Neel, 247 F. Supp. 2d at 709; Docket Sheet, supra note 1. 

13. Neel, 247 F. Supp. 2d 707; see Mark Belko, Pippy Clears Final Legal Hurdle, Pittsburgh 

Post-Gazette, Mar. 7, 2003, at B13. 

14. Neel, 247 F. Supp. 2d at 714. 

15. See Three to Abide by Ruling on Pippy’s Eligibility, Pittsburgh Trib. Rev., Mar. 8, 2003. 

16. See Belko, supra note 13. 

17. See James O’Toole, Pippy Soldiers on to Victory, Pittsburgh Post-Gazette, Mar. 12, 

2003, at B1.