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Gays in the Military – Constitutionality: Equal Protection Case Law
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Gays in the Military – Constitutionality: Equal Protection Case Law
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FOIA Number: 2015-0017-F
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This is not a textual record. This is used as an
administrative marker by the William J. Clinton
Presidential Library Staff.
Collection/Record Group:
Clinton Presidential Records
Subgroup/Office of Origin:
Counsel Office
Series/Staff Member:
Marvin Krislov
Subseries:
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8191
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Folder Title:
Gays in the Military - Constitutionality: Equal Protection Case law
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S
113
3
9
3
Const.
Cases
I
Gender + Constitutionality (EP)
OWENS V. BROWN
291
Cite as 455 F.Supp. 291 (1978)
ween the re-
criminal code" would be realized if this
certify suit as class action. In addition,
ote the effi-
Court were to allow this plaintiff to be
cross motions for summary judgment on the
nviction is so
removed from service on the record now
merits were filed. The District Court, Siri-
don that the
before the Court. Thus, the Court finds
ca, J., held that: (1) suit was appropriate
establish a
that plaintiff's removal was arbitrary and
for class action treatment; (2) military
e removal of
capricious.
judgments by political branches are review-
as the Gueo-
able by the courts for constitutional infirmi-
guishable on
III. CONCLUSION
ties; (3) degree to which sex-centered gen-
viction there,
The Court holds that plaintiff, convicted
eralizations actually comport with facts
stinguishable
for shoplifting and subsequently fully and
must be substantial to withstand equal pro-
inconditional
unconditionally pardoned, cannot be re-
tection challenge; (4) absolute ban on as-
ourt believes
moved from service by the defendants for
signment of female personnel to sea duty,
dge Bazelon
"conviction for a crime," without defend-
except on certain ships, abridges equal pro-
ideration en
ants establishing a nexus between the
tection guaranty embodied in due process
the case at
plaintiff's removal and the promotion of the
clause of Fifth Amendment, and (5) what-
efficiency of the service. Accordingly, the
ever problems might arise from integrating
have stood
Court will grant summary judgment for the
ships or crews were matters that could be
crime alone,
plaintiff.
11
dealt with through appropriate training and
showing de-
An Order in accordance with the forego-
planning.
nature of a
ing will be issued of even date herewith.
Certifications granted; summary judg-
easoned pre-
ment for plaintiffs.
ne efficiency
KEY NUMBER SYSTEM
1. Federal Civil Procedure 181
'.2d at 1230
ce of a full
Action challenging statutory bar on as-
hile perhaps
signment of female personnel to duty on
a sufficient
navy vessels other than hospital ships and
transports was certified as class action, not-
g" to neces-
Yona OWENS et al., Individually and on
establish a
withstanding concern that some female per-
behalf of all others similarly
sonnel might not share representative plain-
articular em-
situated, Plaintiffs,
tiff's desire to remove such bar, since issue
and pardon)
iency of the
V.
was not whether Navy must assign female
tr that the
Harold BROWN, Secretary of Defense
personnel to ship duty against their wishes
but whether navy authorities must exclude
us precedent
and W. Graham Claytor, Secretary of
women from ship assignments whether or
a penalty in
the Navy, Defendants.
not they wish to go to sea. 10 U.S.C.A.
ed for in the
Civ. A. No. 76-2086.
§ 6015; Fed.Rules Civ. Proc. rule 23(b)(2), 28
975); United
U.S.C.A.
United States District Court,
796 (8th Cir.
District of Columbia.
313, 315 (7th
2. Armed Services 14, 24
972, 95 S.Ct.
July 27, 1978.
Constitutional Law 278.6
he statute in-
Statute barring assignment of female
omot[ing] the
.C. $ 7512(a).
personnel to duty on navy vessels other
eve that Con-
Action was brought challenging statu-
than hospital ships and transports violates
clude consid-
tory ban on assignment of female personnel
equality principle embodied in the Fifth
gress empha-
to duty on navy vessels other than hospital
ot the fact of
Amendment. U.S.C.A.Const. Amend. 5; 10
emoval of an
ships and transports. Motion was filed to
U.S.C.A. § 6015.
case law cited
11. Although the plaintiff has raised some pro-
ist consider a
plaintiff will decide to forego his procedural
cedural objections to the defendants' actions,
because Con-
objections in view of the Court's resolution of
the Court is withholding ruling upon them be-
plaintiff's main contention that his removal
cause they were inadequately briefed and be-
was arbitrary and capricious.
cause the Court is relatively confident that
292
455 FEDERAL SUPPLEMENT
3. Constitutional Law 68(1)
Fifth Amendment. U.S.C.A.Const. Amend.
Fact that military affairs were impli-
5; 10 U:S.C.A. $ 6015.
cated did not mean that Fifth Amendment
9. Constitutional Law 208(3)
challenge to statutory ban on assignment of
Even where a classification is viewed
female personnel to duty on navy vessels
as actually furthering a proper statutory
other than hospital ships and transports
purpose, a sex-based distinction must bear a
raised a nonjusticiable political question.
strong relation to the government's objec-
10 U.S.C.A. $ 6015; U.S.C.A.Const. art. 1,
tive. U.S.C.A.Const. Amend. 5.
§ 8, cl. 14; art. 2, $ 2, cl. 1; Amend. 5.
10. Constitutional Law >208(3)
4. Armed Services =3
A high degree of deference is owed to
Legislative classifications between the
the political branches of government in the
sexes must advance legitimate objectives.
U.S.C.A.Const. Amend. 5.
area of military affairs. U.S.C.A.Const.
art. 1, § 8, cl. 14; art. 2, $ 2, cl. 1.
11. Constitutional Law =208(3)
5. Constitutional Law 70.1(7), 72
Required degree of correlation between
Courts should ordinarily exercise a
differences in treatment accorded to men
large measure of self-restraint when asked
and women and legislative objectives
to interpose the judicial will above that of
sought to be achieved is the principal factor
the Congress and the president, as regards
that fixes the strictness with which gender
military affairs; however, courts may not
classifications are to be scrutinized; as the
be required to abdicate their responsibility
necessary measure of correlation moves
to decide cases and controversies merely
higher, the level of scrutiny intensifies to
because they arise in the military context.
the same extent, and as a weaker "congru-
U.S.C.A.Const. art. 1, $ 8, cl. 14; àrt. 2, $ 2,
ence" becomes sufficient, the level of re-
cl. 1.
view is correspondingly relaxed. U.S.C.A.
Const. Amend. 5.
6. Constitutional Law 70.1(7), 72
Whether deference due particular mili-
12. Constitutional Law 208(3)
tary determinations rises to the level of
Degree to which a sex-centered gener-
nonreviewability is a question that varies
alization actually comports with the fact
from case to case and turns on the degree
must be substantial to withstand constitu-
to which the specific determinations are
tional challenge; classifications by gender
laden with discretion and the likelihood that
must be substantially related to achieve-
judicial resolution will involve the courts in
ment of important objectives. U.S.C.A.
an inappropriate degree of supervision over
Const. Amend. 5.
primary military activities. U.S.C.A.Const.
13. Constitutional Law =213.1(2)
art. 1, $ 8, cl. 14; art. 2, $ 2, cl. 1.
Although in equal protection cases the
7. Constitutional Law 70.1(7), 72
court need not accept at face value asser-
Military judgments by the political
tions of legislative purposes, when an exam-
branches are reviewable by the courts for
ination of the legislative scheme and its
constitutional infirmities. U.S.C.A.Const.
history demonstrates that the asserted pur-
art. 1, $ 8, cl. 14; art. 2, $ 2, cl. 1; Amend.
pose could not have been the goal of the
5.
legislature there is no requirement that the
court must overlook unexpressed legislative
8. Constitutional Law 278.6
objectives that reasonably could have
Likelihood of influencing legislative ef-
formed the basis of classification. U.S.C.A.
forts to revise statutory ban on assignment
Const. Amend. 5.
of female personnel to duty on navy vessels
other than hospital ships and transports did
14. Constitutional Law =208(3)
not afford a principled basis for avoiding a
To extent that legislative classifica-
determination of whether ban violated the
tions are based on overbroad generaliza-
OWENS V. BROWN
293
Cite as 455 F.Supp. 291 (1978)
tions about traits, behavior and capabilities
First, defendants have not substantiated
of the different sexes, their reasonableness
their concern that there is actually an an-
is rightly called into question. U.S.C.A.
tagonism among Navy women concerning
Const. Amend. 5.
duty. assignment aboard Navy ships. In an
effort to illustrate a difference in opinion in
15. Constitutional Law 224(1)
this respect, defendants point only to the
Legislative distinctions between mem-
results of an unpublished and admittedly
hers of the opposite sexes need not be
inconclusive survey that was taken by de-
drawn with perfect precision to withstand
fendants' employees of 81 female members
equal protection challenge; however, validi-
of the Navy. While this survey shows that
ty does depend on an unusually high degree
some of the persons interviewed "do not
of correlation between sexual traits under-
think women should go to sea," the over-
lying differences in treatment and impor-
whelming consensus is to the contrary.
tant legislative objectives. U.S.C.A.Const.
Amend. 5.
More importantly, even accepting defend-
ants' assertion of a division of opinion
16. Armed Services 14,
24
among class members, this difference does
Alleged morale and discipline problems
not appear to be legally significant on the
caused by integration of men and women
question of class certification. The issue in
aboard navy ships furnished no basis for
this case is not whether the. Navy must
upholding statutory. ban on assignment of
assign female personnel to ship duty
female personnel to duty on navy vessels
against their wishes. Rather, the question
other than hospital ships and transports
is whether Navy authorities must exclude
since whatever problems might arise from
women from ship assignments whether or
integrating ships and crews were. matters
not they wish to go to sea. Viewing the
that could be dealt with through appropri-
issue in this light, it appears that any an-
ate training and planning. U.S.C.A.Const.
tagonism that may exist among class mem-
Amend. 5; 10 U.S.C.A. $ 6015.
bers is insignificant since it can readily be
obviated by the Navy Department itself
when it develops policies concerning the
Marjorie M. Smith, Jill Laurie Goodman,
assignment of women aboard Navy vessels.
Susan Deller Ross, New York City, Kathe-
Commanding officers enjoy broad discretion
rine A. Mazzaferri, Trudy Levy, Wash-
in making duty assignments; and certainly,
ington, D. C., for plaintiffs.
in assigning women to duty, the Navy can
Earl J. Silbert, U. S. Atty., Michael J.
take account of the fact that some females
Ryan, Lt. Arthur P. Leary, JAGC, USNR,
may have joined the service with neither an
Washington, D. C., for defendants.
expectation nor a desire to serve aboard
Navy ships. See Defs. Ans. to Pl. Sec. Int.
No. 21. In short, it is in defendants' power
ORDER GRANTING CLASS
to obviate any adverse effect that might
CERTIFICATION
flow from the difference in attitude that
SIRICA, District Judge.
they offer as grounds for denying class
certification.
[1] The only serious objection to cer-
tifying this case as a [23]b(2) class action on
Accordingly, because the Court finds that
behalf of Navy women stems from the con-
all requirements of rule 23(a) and 23(b)(2)
cern voiced by defendants that some female
are satisfied in this instance, it is by the
personnel may not share plaintiffs' desire to
Court this 27th day of July, 1978,
remove the statutory bar of 10 U.S.C.
ORDERED that plaintiffs' motion for
6015 (1970) that prevents their being as-
class certification be, and the same hereby
signed to duties aboard Navy vessels. De-
is, granted, and the class is defined to con-
fendants point is not well taken for two
sist of all women serving in the Navy who
principal reasons.
are or will be adversely affected in their
294
455 FEDERAL SUPPLEMENT
service careers by the enforcement of 10
Navy regarding the assignment of female
U.S.C. $ 6015 (1970).
personnel to duty aboard Navy vessels, the
sweep of the statute is too broad to pass
OPINION
constitutional muster.
[2] This civil rights action presents a
challenge to the constitutionality of a feder-
I. Facts and Background
al statute that bars women members of the
Out of a total personnel complement of
Navy from performing any duty in any
capacity aboard any ship that is currently in
approximately half a million individuals,
service in the Navy's fleet. The provision
there are some 25,000 women currently
that occasions this challenge is 10 U.S.C.
serving in the Navy. This number reflects
a marked increase in the recruitment of
$ 6015 (1970).1 Section 6015 begins by con-
ferring on the Secretary of the Navy broad
females over recent years and is part of a
discretion to qualify women for naval duty
general trend towards relying more heavily
and to prescribe the range of their training
on female personnel to fill the ranks of the
and assignments. But the statute con-
several military forces. But none of these
cludes with an absolute prohibition that
many thousands of Navy women is present-
prevents the Secretary from exercising his
ly permitted to hold any of the wide range
discretion to assign female personnel to
of positions available aboard the Navy's
duty at sea. Plaintiffs, a group of female
fleet. This holds true even when command-
officers and enlisted women in the Navy,
ing officers find particular women recruits
challenge this prohibition as abridging the
equally as qualified for particular assign-
equal protection guarantee embodied in the
ments as their male counterparts. This is
due process clause of the fifth amendment.
also the case even when their superiors find
Their complaint seeks an order declaring
them affirmatively more qualified. The
section 6015's absolute bar unlawful and
reason for this mandated disparate treat-
enjoining defendants, the Secretary of the
ment is section 6015, a provision that allows
Navy and the Secretary of Defense, from
of but one distinction, that of male and
relying on it when formulating policy for
female.
the training and assignment of Navy wom-
The distinction wrought by the statute is
en to duty. As will appear more fully
the source of numerous and easily docu-
below, plaintiffs' position is well taken.
mented differences in the prospects facing
The application of developing equal protec-
men and women members of the Navy.
tion principles convinces the Court that to
But none is more pronounced than exists in
the extent that section 6015 operates with-
the area of duty assignments. The range
out counter-balancing justification to fore-
of duties and assignments available to fe-
close the discretion of the Secretary of the
male members of the Navy is severely re-
1. Originally enacted as part of the Women's
vessels of the Navy other than hospital ships
Armed Services Integration Act of 1948. Pub.
and transports. (emphasis supplied).
L.No. 80-625, 62 Stat. 368 (1948). 10 U.S.C.
It is undisputed that there are no hospital ships
§ 6015 (1970) now provides:
or transports currently in service in the Navy.
The Secretary of the Navy may prescribe
2. Schlesinger V. Ballard, 419 U.S. 498, 500 n. 3,
the manner-in which women officers appoint-
95 S.Ct. 572, 42 L.Ed.2d 610 (1975): Frontiero
ed under section 5590 of this title, women
V. Richardson, 411 U.S. 677, 680 n. 5, 93 S.Ct.
warrant officers, and enlisted women mem-
1764, 36 L.Ed.2d 583 (1973); Bolling V. Sharpe,
bers of the Regular Navy and the Regular
347 U.S: 497, 499, 74 S.Ct. 693, 98 L.Ed. 884
Marine Corps shall be trained and qualified
(1954).
for military duty. The Secretary may pre-
scribe the kind of military duty to which such
3. Plaintiffs' amended complaint also seeks an
women members may be assigned and the
award of damages to compensate plaintiffs for
military authority which they may exercise.
the impairment to their fifth amendment rights
However, women may not be assigned to
caused by section 6015. Plaintiffs, however,
duty in aircraft that are engaged in combat
have apparently abandoned this claim for re-
missions nor may they be assigned to duty on
lief.
OWENS V. BROWN
295
Cite as 455 F.Supp. 291 (1978)
stricted in comparison with assignments
tained combat incident to operations at
open to men for the simple reason that,
sea." 10 U.S.C. § 5012(a) (1970). The prac-
under the statute, women are eligible exclu-
tical effect of this limitation is that a dis-
sively for shore duty, while their male coun-
proportionately small number of women
terparts may serve both on shore billets and
will have the opportunity to embark upon a
in the more numerous positions available at
career whose successful completion carries
sea. This disparity stands out starkly when
with it numerous and economically signifi-
a comparison is made between the catego-
cant veterans' benefits and preferences.
ries of job classifications that are open to
members of the respective sexes. Of the
But a career in the Navy is not measured
scores of ratings and career classifications
entirely in terms of the employment oppor-
available in naval service, females are
tunities and veterans' privileges that ac-
barred from all but a small fraction, while
company military service. There is in addi-
men, by contrast, are allowed to compete
tion to the practical benefits that inure
for all available positions. Women are not
upon serving in the Navy a moral element
only excluded from billets that involve as-
that forms an integral part of the overall
signments at sea, they are also precluded
experience. This springs from the idea of
from a significant number of shore billets
individuals taking part in an essential na-
because these posts are restricted to persons
tional enterprise to the limits of their abili-
who are eligible for duty aboard ships.
ties. This aspect of a naval career is not
The exclusion of women from most job
something plainly reserved for one gender
classifications also operates to preclude
rather than the other. But because of sec-
them from gaining access to a wide range
tion 6015, sex is required to take precedence
of opportunities for the development of job
over individual ability where the essential
skills and areas of technical expertise.
part of naval service is concerned.
There is presently little reason for military
Significantly, none of the limitations and
officials to train and qualify female mem-
disadvantages facing Navy women is trace-
bers to perform jobs that are foreclosed to
able to any studied evaluation made of male
them by statute. And the Navy has under-
and female capabilities that reveals that
standably and with almost uniform consist-
women lack the native ability to perform
ency refrained from training women for
competently in positions held exclusively by
callings reserved entirely for members of
men. Indeed, several reports on the subject
the opposite sex. Aside from the obvious
made under military auspices suggest that
effect this has on the advancement of fe-
just the opposite is true with respect to
males within the Navy, this limitation
works the additional consequence of depriv-
some women and some positions. The dis-
ing women members of skills that in all
tinction is rather the product of the statuto-
likelihood will prove vital to their ability to
ry presumption reflected in section 6015
compete for and secure satisfactory employ-
that all women are unqualified to discharge
ment when they end their military careers
any of the duties performed on any of the
and reenter the private sector.
Navy's ships.
The disadvantage faced by women in the
For obvious reasons, the harsh effects
private sector as a result of section 6015 is
occasioned by this presumptive disqualifica-
heightened by the fact that the statute
tion in individual cases are not difficult to
effectively places a ceiling on the level of
picture. They are amply illustrated by
female recruitment by the Navy. Despite
looking at the limitations placed on the
the current policy to enlarge the female
military careers of several of the plaintiffs
component in the naval forces, the fact
named in this action. Plaintiff Yona Ow-
remains that only SO many shore-confined
ens, for example, serves in the Navy as an
members are capable of being integrated
Interior Communications Electrician. Her
into a contingent that is "organized, trained
position involves the repair and mainte-
and equipped primarily for prompt and sus-
nance of sophisticated electrical equipment
296
455 FEDERAL SUPPLEMENT
that is primarily used for navigation and
assignment to a supply ship and regular
found aboard Navy ships. To develop and
flights to and from cruising vessels. Yet
utilize her skills more fully, plaintiff Owens
because of section 6015, plaintiff Drag is
has requested that she be assigned to a
barred from this kind of duty, while equally
shipboard position. However, because of
qualified males are not. As her command-
section 6015, the Navy has refused to even
ing officer noted to the Secretary of the
consider her for duty at sea irrespective of
Navy, plaintiff Drag "is excluded from vir-
her personal qualifications. The Navy has
tually all operational commitments routine-
similarly refused to consider plaintiff Nato-
ly undertaken by her contemporaries" de-
ka Peden, a photographer and diver, for
spite her "demonstrated outstanding per-
assignment as a support diver because the
formance in all aspects of her assigned
diving unit with which she wishes to work
duties."
In addition, this same limitation
is deployed from a ship. This, too, is with-
on assignments also impairs plaintiff's abili-
out regard to plaintiff Peden's individual
ty to accumulate the flight time she needs
abilities.
to advance to higher ratings even as a shore
Plaintiff Kathleen Byerly is a naval offi-
-based aviation specialist. The reason is
cer with approximately twelve years of ex-
that helicopter pilots are required as a con-
perience. Ranked as a lieutenant com-
dition to advancement to qualify as aircraft
mander, and recognized by the Navy as a
commanders with 300 hours of flight time,
distinguished officer, she holds the position
a goal that is made especially difficult for
of Aide and Flag Secretary to the Com-
women because of the scarcity of flight
mander Training Command in the Pacific
opportunities that are not precluded by the
Fleet. This assignment entails the per-
broad sweep of the statute.
formance of administrative and liaison
The obstacles to career development and
functions between the commanding admi-
national service faced by these women -are
ral, his staff and his ten subordinate com-
by no means unprecedented. Traditionally,
mands. Plaintiff Byerly is the first woman
service in the Navy has been a masculine
to hold a position of this type. But unlike
calling and until World War II the only
male officers with comparable backgrounds
females allowed to serve as members of the
and experience, she is precluded by section
Navy were employed in the traditional ar-
6015's absolute prohibition from advancing
eas of nursing and office work. Con-
to the prized position of shipboard com-
straints on female service in the naval
mand. This is SO solely because the com-
forces were somewhat relaxed, however, in
mand of a vessel necessarily involves an
1948 with the enactment of the Women's
assignment at sea and because plaintiff
Armed Services Integration Act.6 This
Byerly is a female.
piece of legislation signified a major step in
Like plaintiff Byerly, plaintiff Joellen
the direction of expanding the range of
Drag serves as a naval officer. As part of
career opportunities available to women in-
an experimental program, the Navy recruit-
terested in pursing a career in the Navy
ed her to become a member of the first
and towards equalizing the distribution of
group of women to, be trained as Navy
privileges and benefits that accompany na-
pilots. After qualifying as a helicopter pi-
val, service.⁷ But it also contained funda-
lot, plaintiff Drag was assigned to a sup-
mental limitations.⁸ One of the most prom-
port squadron whose primary function in-
inent of these restrictions is the absolute
volves servicing vessels at sea with supplies.
bar against shipboard duty currently re-
This duty typically requires a temporary
flected in 10 U.S.C. $ 6015 (1970).
4. First Endorsement dated March 15, 1976, PI.
7. Id. See also Binkin & Bach, supra note 5, at
Mot. for Sum. Judg., Exhib. A.
10-12.
5. M. Binkin & S. Bach, Women and the Mili-
8. Id.
tary, at 4-6 (1977).
6. Pub. No. 80-625, 62 Stat. 356 (1948).
OWENS V. BROWN
297
Cite as 455 F.Supp. 291 (1978)
Many of the limitations brought into ef-
debate on the Equal Rights Amendment,
feet by the Integration Act of 1948 were
but was defeated by a wide margin. 14 Fi-
removed by amendments passed in 1967.9
nally, the reevaluation of the issue of wom-
These changes were for the most part di-
en in the military was occasioned by the
rected at eliminating general ceilings on the
enactment of legislation 15 in 1975 that al-
level of female recruitment and specific re-
lowed the admission of women to the mili-
strictions on the ability of women to hold
tary academies, the primary source of com-
permanent positions in some of the Navy's
bat officers, and by the introduction of sev-
higher grades. 10 The 1967 amendments did
eral bills 16 to prohibit the exclusion of
not, however, modify the scope of section
women from combat duty.
6015's blanket prohibition. Far from doing
that, they heightened the adverse effect of
As part of this review process, a number
of studies were undertaken to look into the
the constraint by allowing an increasing
number of female members to enter the
relationship between women in the military
Navy and advance upward through the
and military needs and effectiveness."
ranks, while at the same time denying them
These reports recognize that the projected
the career opportunities that comprise the
decline in the number of eligible males
primary mission of the naval forces.
makes an increase in the number of women
recruits inevitable. 18 In addition, once fe-
The decision in 1970 to end the draft
male enlistments are significantly in-
added a significant impetus for military
creased, considerations of personnel man-
authorities to reevaluate the utilization of
women in the armed services. 11 This re-
agement and flexibility require a corre-
evaluation was necessitated because of the
sponding expansion in female utilization. 19
This is because, as the Deputy Chief of
serious and evenly debated question con-
cerning the ability of the military to recruit
Naval Personnel recently explained, "If you
sufficient numbers of male volunteers with-
build into your structure too many people
out an unacceptable increase in costs and
who can't go to sea, then this interferes
without compromising the quality of new
with the rotation of those who can go either
recruits. 12 The effort was also influenced
place, and who are experienced." 20
by congressional approval of an Equal
These reports also recognize that the fe-
Rights provision that did not contain an
male population offers a greater reservoir
exception for military affairs. 13 An excep-
of quality recruits than the male popula-
tion of this kind was offered during the
tion. Indeed, statistics compiled by the
9. Pub.L.No. 90-130, 81 Stat. 374 (1967).
17. See, e.g., Use of Women in the Military,
Office of the Assistant Secretary of Defense
10. Id. See also Schlesinger V. Ballard, 419 U.S.
(1977), Defs. Ans. to Pl. First Int., Attach. 1;
498, 505 n. 10. 95 S.Ct. 572, 42 L.Ed.2d 610,
Report of the Task Group of Equal Treatment
Binkin & Bach, supra note 5, at 12.
of Service Women (1973), id., Attach. 20; Navy
Affirmative Plan (1976), id., Attach. 18; Report
11. Binkin & Bach, supra note 5, at 13-14.
on the Evaluation of the Assignment of Women
to the USS Sanctuary (1973), id., Attach. 7.
12. Id.
See also Binkin & Bach. supra, note 5.
13. 86 Stat. 1523. The text of the Equal Rights
Amendment reads:
18. See Graph Projection, Defs. Ans. to PI. Sec.
Int. No. 23 & Attach. 6.
Equality of Rights under law shall not be
denied or abridged by the United States or by
any state on account of sex.
19. Id. See also Binkin & Bach, supra note 5, at
24-26.
14. 118 Cong. 9337 (1972); see also id. at
9336, 9351.
20. Statement of Rear Admiral Charles Rauch,
Pl. Mot. for Sum. Judg., Exhibit H.
15. Pub.L.No. 94-106, 89 Stat. 538 (1975).
16. See H.R. 58 (introduced Jan. 1, 1975); H.R.
21. Use of Women in the Military, supra note
2190 (introduced Jan. 28, 1975); H.R. 12649
17, at 22-23.
(introduced Mar. 18, 1976).
298
455 FEDERAL SUPPLEMENT
Defense Department reveal that female re-
looked for ways to increase the use of wom-
Cruits are on the average brighter than
en in the Navy. But the broad sweep and
their males counterparts, test higher in ar-
absolute terms of section 6015 have effec-
eas that are used to predict success in the
tively thwarted military authorities in their
military and are more apt than males to
attempt to expand female utilization. The
remain in the military beyond their mini-
realization that the statutory bar is as far
mum terms. Moreover, "As male recruit-
reaching as the broad terms of the section
ing pressure tightens, these differences in
imply has prompted the Department of De-
quality between the marginal male and fe-
fense to initiate efforts to amend the stat-
male accession can be expected to widen
ute SO as to limit the prohibition against
further.
23
women serving on shipboard billets. The
Cost savings to the military are also a
Department, through the Secretary of the
likely consequence of increasing the utiliza-
Navy, has not taken the position that sec-
tion of women in the armed forces. The
tion 6015 should be repealed completely.
marginal cost of recruiting high quality
This is because the likely effects of total
men is approximately $2,000 in comparison
integration on military effectiveness is
with $150 for recruiting women of equal
presently unclear. But the Department is
quality. 24 This figure for women compares
clear about the positive effects that will
favorably with the cost of enlisting lower
flow from moving in measured steps to
quality men, leading military authorities to
enlarge the areas of female utilization.
conclude: "If women can do enough of the
The amendments proposed by the Navy
jobs which must be done, considerable sav-
to modify section 6015 are limited yet, when
ings can be realized." 25 The importance of
the opportunities presently open to female
these savings is particularly apparent given
members are considered, they are by no
the fact that with the recent decision to
means insignificant. The proposed changes
employ an all-volunteer military force, in-
would make it possible to assign qualified
creasing expenditures are necessary to
women to temporary duty on any vessel not
maintain an adequate number of recruits.
engaged in combat missions and to perma-
"Indeed, whether this nation can sustain its
nent duty on vessels of a classification simi-
armed forces solely by voluntary means
lar to hospital ships and transports. 31 This
could well depend on how effectively the
relaxation of the statutory bar would of
female labor resource is employed." 27
necessity broaden the training and occupa-
Based on the information brought out in
tional opportunities open to female recruits
these studies and by an experiment con-
and officers by initiating the assignment of
ducted between 1972 and 1974 in which
both male and female personnel to ship-
women were allowed to take part in the
board duties. In addition, the proposal
general management of a Navy vessel,28 the
would enhance career opportunities for
Department of Defense has forthrightly
Navy women by opening up additional rat-
22. Id. at 23.
29. Memoranda Regarding Naval Personnel, id.,
Attach. 19. These materials reflect efforts di-
23. Id.
rected at inquiring into whether some areas of
shipboard female utilization might fall outside
24. Id.
the scope of section 6015. The conclusions
reached are that section 6015 is as encompass-
25. Id.
ing in its prohibition as its absolute terms im-
ply.
26. Binkin & Bach. supra note 5. at 65-71.
30. Letter of W. Graham Claytor, Secretary of
27. Id. at 71.
the Navy, to the Speaker of the House, dated
May 9. 1977. id., Attach. 9.
28. Defs. Ans. to PI. Sec. Int. Nos. 25, 31, 37, 39
& Attachs. 7. 9.
31. Defs. Ans. to Pl. Sec. Int. Nos. 2, 3 & 4.
OWENS V. BROWN
299
Cite as 455 F.Supp. 291 (1978)
ings and classifications that are currently
II.
Plaintiffs'
Claims
are
Justiciable.
precluded by the statute.
[3] Defendants preface their defense on
The support shown for the proposal by
the merits in this case with the claim that
the Navy and the Department of Defense
because military affairs are implicated, the
has created somewhat of an anomaly in the
issue of section 6015's constitutionality rais-
context of the present litigation. In seek-
es a nonjusticiable political, question. The
ing a partial repeal of section 6015, defend-
focus of this argument is on provisions of
ants have taken the position that an abso-
the Constitution that empower the Con-
lute prohibition against women serving
gress 33 "To provide and maintain a Navy"
aboard Navy ships is undesirable as a mat-
and the President 34 to act as the "Com-
ter of policy and unnecessary as a matter of
mander in Chief of the
military preparedness. However, in de-
Navy of
the United States." Defendants read these
fending the lawfulness of the provision
against plaintiffs' constitutional challenge,
provisions as signifying an intent to commit
defendants have maintained that the classi-
decisions regarding the military to the dis-
fication drawn by section 6015 nevertheless
cretion of the legislative and executive
rests on legitimate considerations that justi-
branches of government and to leave no
fy the disparate treatment accorded Navy
room for the third branch to exercise inde-
men and women. These seemingly conflict-
pendent review. This argument proves too
ing assertions have required defendants to
much, however.
walk somewhat of a narrow line. between
the two sides of an apparent contradiction.
[4] To be sure, a high degree of defer-
They also explain why defendants have cho-
ence is owed to the political branches of
sen to press the point that the constitution-
government in the area of military affairs.
ality of section 6015 raises a nonjusticiable
This is SO for obvious and compelling rea-
political question. However, for the rea-
sons. To begin with, there are few "area[s]
sons that follow, the Court is convinced that
of government activity in which the courts
the distinction drawn by the statute is capa-
have less competence" to act than in the
ble of judicial review and that, to the ex-
highly specialized field of military decision-
tent that it represents a generalization
making. Gilligan V. Morgan, 413 U.S. 1, 10,
about women that even the highest defense
93 S.Ct. 2440, 2446, 37 L.Ed.2d 407 (1973).
authorities concede is unsound, it is not
Oversight of military operations typically
"substantially related to the achievement of
involves "complex, subtle and professional"
[important governmental] objec-
judgments that are best left to those
tives." Craig V. Boren, 429 U.S. 190, 197, 97
steeped in the pertinent learning. Id.
S.Ct. 451, 457, 50 L.Ed.2d 397 (1976).
Moreover, defense decisions arise in the
32. Id.
491 (1969), and compliance with the republican
form of government guarantee, see Pacific
33. U.S.Const., Art. I, $ 8, cl. 14. This provision
States Tel. & Tel. Co. V. Oregon, 223 U.S. 118,
reads:
32 S.Ct. 224, 56 L.Ed. 377 (1912); Luther V.
The Congress shall have power-
Borden, 48 U.S. (7 How.) 1, 12 L.Ed. 581 (1842),
To provide and maintain a Navy
and to the President particular questions con-
34. Id., Art. II, § 2, cl. 1. It reads:
cerning foreign policy, see Chicago & Southern
The President shall be Commander in Chief
Air Lines, Inc. V. Waterman Steamship Corp.,
of the Army and Navy of the United States
333 U.S. 103, 68 S.Ct. 431, 92 L.Ed. 568 (1948);
Braniff Airways Inc. V. CAB [Chicago-Montre-
35. The Court does not understand defendants
al], No. 76--2043 (D.C. Cir. July 10, 1978). In-
to be making the argument that questions of
stead, it appears that defendants are basing
personnel utilization in the military are abso-
their justiciability argument upon the fact that
lutely committed to the legislative and execu-
military questions are within the constitutional
tive branches of government in the sense that
powers of the legislative and executive branch-
the Constitution explicitly commits to Congress
es and that, for prudential reasons, courts
questions concerning the designated qualifica-
should ordinarily regard the exercise of those
tions for its membership, see Powell V. McCor-
powers as conclusive.
mack, 395 U.S. 486, 89 S.Ct. 1944, 23 L.Ed.2d
300
455 FEDERAL SUPPLEMENT
context of an area of national concern un-
er particular decisions are lawful than into
paralleled in importance to the nation as a
whether they are susceptible to review at
whole and thus are of the sort customarily
all. Whether the deference due particular
entrusted to the political branches of
military determinations rises to the level of
government. "In framing policies relating
occasioning nonreviewability is a question
to the great issues of national defense, the
that varies from case to case and turns on
people are and must be, in a sense, at the
the degree to which the specific determina-
mercy of their elected representatives."
tions are laden with discretion and the like-
Pauling V. McNamara, 118 U.S.App. 50,
lihood that judicial resolution will involve
53, 331 F.2d 796, 799 cert. denied, 377 U.S.
the courts in an inappropriate degree of
933, 84 S.Ct. 1336, 12 L.Ed.2d 297 (1964).
supervision over primary military activities.
Beyond that, there are essential differences
See Gilligan V. Morgan, 413 U.S. 1, 93 S.Ct.
between the military and civilian communi-
2440, 37 L.Ed.2d 407 (1973); Mindes V. Sea-
ties that counsel strongly in favor of execu-
man, 453 F.2d 197, 201 (5th Cir. 1971).
tive autonomy in military matters subject
Adoption of defendants' blanket assertion
to legislative guidance. By contrast to the
would blur these important distinctions.
relationship between the government and
[7] This conclusion finds firm support in
employees and citizens, the defense estab-
the case law. The leading precedent is
lishment relates to military personnel as
Schlesinger V. Ballard, 419 U.S. 498, 95 S.Ct.
"employer, landlord, provisioner and law-
572, 42 L.Ed.2d 610 (1975). In that case, a
giver rolled into one." Parker V. Levy, 417
Navy lieutenant brought suit to challenge a
U.S. 733, 751, 94 S.Ct. 2547, 2559, 41 L.Ed.2d
federal statutory scheme that favored the
439 (1974). This all-encompassing relation-
promotion of women officers over men.
ship is one that is largely unfamiliar to the
Plaintiff claimed that this difference in per-
courts and, coupled with the peculiar de-
sonnel policy offended the equal protection
mands of military discipline and duty, adds
guarantee of the fifth amendment. Ulti-
impetus to the idea that military judgments
mately, plaintiff's challenge was rejected
deserve an especially high degree of re-
by the Supreme Court. But significantly
spect.
the Court did not reach this result by re-
[5,6] Properly understood, these pru-
fraining from a decision on the merits based
dential and separation of powers considera-
on notions of nonreviewability. Quite to
tions settle the point that courts should
the contrary, the Court resolved the dispute
ordinarily exercise a large measure of self-
by applying substantive equal protection
restraint when asked to "interpose the judi-
principles and by concluding that the dispa-
cial will above that of the Congress and the
rate treatment occasioned by the statutory
President." Pauling, supra, 118 U.S.App.
arrangement was rational because, as a re-
D.C. at 53, 331 F.2d at 799. But by the
sult of 10 U.S.C. § 6015 (1970), "female
same token they do not of necessity compel
lieutenants will not generally have compiled
the courts to abdicate their responsibility to
records of seagoing services comparable to
decide cases and controversies merely be-
those of male lieutenants." Id. at 509, 95
cause they arise in the military context.
S.Ct. at 577.3
Contrary to defendants' assertion, the de-
Nor did considerations of deference for
served margin of latitude afforded the po-
the other branches of government prevent
litical branches of government in rendering
substantive review of military personnel
military judgments seems as a general mat-
policies in Frontiero V. Richardson, 411 U.S.
ter to figure more prominently into wheth-
677, 93 S.Ct. 1764, 36 L.Ed.2d 583 (1973).
36. It should be pointed out that the Court in
branches are nevertheless reviewable by the
Schlesinger expressed great deference for legis-
courts for constitutional infirmities: "We can-
lative and executive oversight in the field of
not say that, in exercising its broad constitu-
military affairs. 419 U.S. at 510, 95 S.Ct. 572.
tional power here, Congress has violated the
578. But the Court concluded by reinforcing
Due Process Clause of the Fifth Amendment."
the idea that military judgments by the political
Id.
OWENS V. BROWN
301
Cite as 455 Supp. 291 (1978)
There, a statutory difference between male
the Second and Fifth Circuits have allowed
and female members of the uniformed serv-
review of military actions to determine
ices that involved entitlements to housing,
whether they were undertaken in compli-
medical, and dental benefits was stricken
ance with constitutional guarantees, see;
on equal protection grounds. A review of
e. g., Crawford, supra, within the scope of
the Court's decision shows not the slightest
official authority, see, C. g., Mindes V. Sea-
hesitancy about reaching the merits even
man, 453 F.2d 197 (5th Cir. 1971), and in
though military affairs were involved.
conformity with applicable military regula-
In a like vein, deference for legislative
tions, see, c. g., Smith V. Resor, 406 F.2d 141
and executive oversight of the military did
(2d Cir. 1969). In the District of Columbia
not preclude independent review in Parker
Circuit, the reach of judicial review was
V. Levy, 417 U.S. 733, 94 S.Ct. 2547, 41
recently upheld in Waldie V. Schlesinger,
L.Ed.2d 439 (1974). At issue in Parker was
166 U.S.App.D.C. 175, 509 F.2d 508 (1974),
the constitutionality of Army regulations
to allow an equal protection challenge to a
that permitted the courtmartial of a mili-
"men only" policy not unlike the one being
tary physician for making disrespectful and
challenged in the case at bar. There, plain-
disloyal statements to other military per-
tiffs asserted the unlawfulness of a policy
sonnel. Even though the case presented a
that barred women from being admitted to
question touching upon the discretionary
the United States Air Force and Naval
area of military discipline, the Court went
Academies even for training "in specialties
forward to reach the merits. In so doing, it
which are open to women." Id. 166 U.S.
implicitly recognized that while the obvious
differences between the military and civil-
App.D.C. at 177, 509 F.2d at 510 (emphasis
ian communities provide the backdrop
original). Overturning a decision grant-
against which to test the lawfulness of mili-
ing the government's motion for summary
tary decisions, they do not of necessity fur-
judgment, the Court quite forcefully indi-
nish a basis for foregoing review.
cated that a decision on the substance of
plaintiffs' clàims was appropriate and "re-
Nor are Schlesinger, Frontiero and Par-
manded for a full trial on the merits." Id.
ker the only authorities to uphold the abili-
166 U.S.App.D.C. at 178, 509 F.2d at 511.
ty of the courts to inquire into internal
military affairs. Indeed, as the Court of
Defendants seemingly recognize that the
Appeals for the Second Circuit has noted,
weight of authority is to allow independent
"a succession of cases in this circuit and
review in the field of military affairs.
elsewhere has reiterated the proposition
Nevertheless, they argue that in the con-
that the military is subject to the Bill of
text of this particular case special factors
Rights and its constitutional implications."
call for the exercise of judicial restraint.
Crawford V. Cushman, 531 F.2d 1114, 1120
The first and foremost of these special con-
(2d Cir. 1976). In the First Circuit, for
siderations stems from the view that a deci-
example, the reach of the courts was held to
sion in plaintiffs' favor on the merits of this
extend to discharge petitions where consti-
case is apt to involve the court in the super-
tutional rights are at stake. See, C. g.,
vision of military activities without the ben-
Ashe V. McNamara, 355 F.2d 277 (1st Cir.
efit of readily discoverable standards. Dc-
1965). The decisions of the Second and
fendants suggest that if plaintiffs' chal-
Fourth Circuits are to the same general
lenge is actually reviewed and found to
effect. See, e. g., Hammond V. Lenfest, 398
have merit, the inevitable result will be for
F.2d 705 (2d Cir: 1968); Reed V. Franke, 297
the court to embark upon the unchartered
F.2d 17 (4th Cir. 1961). Other cases from
course of supervising the "full sexual inte-
37. It requires noting that, remanding for a trial
nothing in the court's opinion indicates that if
on the merits, the Court in Waldie was direct-
the question presented had been the constitu-
ing the trial judge to review a "men only"
tionality of section 6015. judicial review would
policy of less import to the military than the
have been improper.
policy reflected in section 6015. However,
302
455 FEDERAL SUPPLEMENT
gration of our armed services." 38
Defend-
Unlike in Gilligan, a decision here will prop-
ants conclude that a decision of this magni-
erly leave to experts the task of making
tude is better left to the political branches
"[t]he complex, subtle and professional deci-
in light of "their more extensive resources"
sions as to the composition, training, equip-
and expertise.3
ping, and control of a military force." Id.
Were this a case like Gilligan V. Morgan,
at 10, 93 S.Ct. at 2446.4
413 U.S. 1, 93 S.Ct. 2440, 37 L.Ed.2d 407
[8] Defendants also urge the Court to
(1973), defendants" contention would have
force. Gilligan involved a suit brought by a
forego review in this case on the grounds
group of students at Kent State University
that a decision on the merits will likely
to obtain review of the activities of the
affect ongoing congressional consideration
Ohio National Guard. Plaintiffs sought
of the Navy's proposal to amend section
neither an award of damages nor an injune-
6015. That, of course, may be true. Yet
tion to prevent specific unlawful actions.
defendants have offered no authority for
Rather, they sought a comprehensive array
the view that judicial review of a statutory
of injunctive remedies amounting to "con-
policy is in any way to be gauged to the
tinuing judicial surveillance over the
progress of legislative efforts to arrive at a
Guard" and the judicial promulgation of
new policy. Moreover, even if it is assumed
"standards for the training, kinds of weap-
that a decision here will influence consider-
ons and scope and kinds of orders to control
ation of the Navy's proposal, it is highly
the actions of the National Guard." Id. at
unlikely that the effect will be adverse to
6, 93 S.Ct. at 2443. Understandably, the
the political process. Indeed, resolution of
Court relied on nonjusticiability principles
plaintiffs' equal protection claims will in all
to overturn a decision by the Sixth Circuit
likelihood serve to focus the relevant issues
that would have assigned to a judge the
and advance the proposed amendments on
task of "evolving methods of training,
the legislative agenda.
equipping, and controlling military forces."
In sum, then, neither deference for the
Id. at 8; 93 S.Ct. at 2445.
decisions of the political branches of
Gilligan is is not this case, however. Con-
government in the area of military affairs,
trary to defendants' contention, a decision
nor concern about undue judicial interven-
favorable to the plaintiffs in this case will
tion, nor the likelihood of influencing legis-
most assuredly not have the effect of re-
lative efforts to revise section 6015 affords
quiring "continuing judicial surveillance"
a principled basis for avoiding a decision on
over discretionary military activities. Id. at
the precise claims raised by plaintiffs in this
6, 93 S.Ct. 2440. Far from doing that, a
case. Notwithstanding defendants' argu-
decision in plaintiffs' favor will simply lift
ment to the contrary, these considerations
the bar contained in section 6015 that cur-
go more to whether section 6015's prohibi-
rently prevents defense authorities from
tion is lawful and to the question of appro-
exercising their discretion regarding female
priate remedy, than to whether the dispute
utilization in the manner they see fit.40
is justiciable. Consequently, if section 6015
38. Defs. Mot. for Sum. Judg., at 6.
345 U.S. 83, 93, 73 S.Ct. 534, 540, 97 L.Ed. 842
(1953).
39. Id.
42. If anything, defendants' contention on this
40. As noted earlier, defendants have proposed
point is relevant to the question of whether the
an amendment to section 6015 that would al-
Court should grant a stay in this case to permit
low the assignment of women members of the
the legislative process to run its course. De-
Navy to noncombat shipboard duties.
fendants, however. have not asked the Court to
stay its hand temporarily pending a legislative
41. A decision in the instant case will not do
solution to plaintiffs' claims. Rather, they
violence to the idea, aptly expressed by Justice
have asked the Court to refrain from review
Jackson in relation to another branch of the
altogether. See Trans. of Oral Arg., filed April
armed services: "judges are not given the task
.11. 1978. at 12 13.
of running the Army." Orloff V. Willoughby,
OWENS V. BROWN
303
Cite as 455 F.Supp. 291 (1978)
is to be upheld, it must be because the
tions that bear a fair relation to legitimate
statute advances some important govern-
government purposes. Initially, the cases
ment policy.
focus on whether the classification under
review stems from an outmoded way of
III. Equal Protection
thinking about members of the opposite
(1)
sex. To the extent that differences in
The Supreme Court first struck down a
treatment can be traced to overbroad gen-
statute drawing a classification between
eralizations about the roles played by men
the sexes in 1971. 43 That result was
and women in society, the approach is to
reached in Reed V. Reed, 404 U.S. 71, 92
view them with suspicion. 45 This approach
S.Ct. 251, 30 L.Ed.2d 225 (1971), a case in
explains the results reached in the Stanton
which a woman challenged a state law that
V. Stanton, 421 U.S. 7, 95 S.Ct. 1373, 43
gave men. a mandatory preference over
L.Ed.2d 688 (1975), Weinberger V. Wiesen-
women for appointment as the administra-
feld, 420 U.S. 636, 95 S.Ct. 1225, 43 L.Ed.2d
tors of estates. In the ensuing seven years
514 (1975) and Frontiero V. Richardson, 411
since Reed, the Court has had several occa-
U.S. 677, 93 S.Ct. 1764, 36 L.Ed.2d 583
sions to review provisions that in one way
(1973), decisions. Stanton involved a stat-
or another have drawn distinctions between
ute that fostered the idea that females
members of the opposite sex.44 The result
reach the age of emancipation sooner than
is an uneven and somewhat unsteady trend
their male counterparts. The Wiesenfeld
in the development of a single body of
decision struck down a provision that pre-
principles to apply in cases raising claims of
sumed working women always to be de-
sex discrimination.
pendent on their spouses for support. And
This uncertainty arises less from the
Frontiero invalidated a federal law that
problem of identifying the relevant factors
reflected a similar notion about women in
to consider in reviewing sex discrimination
the military.
than from the problem of articulating a
Another essential factor identified in the
single standard that is, on the one hand,
cases is the importance of the governmental
strict enough to strike down arbitrary and
objective that is sought to be achieved by
unreasonable classifications and that is, on
means of treating the sexes differently.
the other, fléxible enough to uphold distine-
Administrative convenience in providing
43. Prior to 1971, the Supreme Court had sus-
Kahn V. Shevin, 416 U.S. 351. 94 S.Ct. 1734, 40
tained a number of gender-related classifica-
L.Ed.2d 189 (1974): Frontiero V. Richardson,
tions, expressing a generally deferential regard
411 U.S. 677, 93 S.Ct. 1764, 36 L.Ed.2d 583
for such distinctions. In Hoyt V. Florida. 368
(1973).
U.S. 57, 82 S.Ct. 159, 7 L.Ed.2d 118 (1961), the
Court upheld a state jury selection system that
45. See, e. K., Califano V. Goldfarb, 430 U.S. 199,
hinged the jury duty of women upon whether
217, 97 S.Ct. 1021, 51 L.Ed.2d 270 (1977) (pre-
they had registered for jury service. Likewise,
sumption about the dependency of surviving
in Goesaert V. Cleary, 335 U.S. 464. 64 S.Ct.
spouses): Craig V. Boren, 429 U.S. 190, 198-99,
198, 93 L.Ed. 163 (1948), the Court validated a
97 S.Ct. 451, 50 L.Ed.2d 397 (1976) (women
law that prohibited women from working as
presumed to mature faster than men); Stanton
bartenders. And in Muller V. Oregon, 208 U.S.
V. Stanton, 421 U.S. 7. 14-15, 95 S.Ct. 1373, 43
412, 28 S.Ct. 324. 52 L.Ed. 551 (1908). the
L.Ed.2d 688 (1975) (18-20-year-old females pre-
Court sustained, a state statute that placed a
sumed less likely than males to need financial
limit on the number of hours female employees
support): Weinberger V. Wiesenfeld, 420 U.S.
could work.
636. 644, 95 S.Ct. 1225, 43 L.Ed.2d 514 (1975)
(presumption that the husband is the spouse
44. Califano V. Goldfarb, 430 U.S. 199. 97 S.Ct.
responsible for support of the family); Frontie-
1021. 51 L.Ed.2d 270 (1977): Craig V. Boren.
ro V. Richardson, 411 U.S. 677. 683-85, 93 S.Ct.
429 U.S. 190, 97 S.Ct. 451, 50 L.Ed.2d 397
1764, 36 L.Ed.2d 583 (1973) (female spouses of
(1976): Stanton V. Stanton, 421 U.S. 7. 95 S.Ct.
servicemen presumed to be dependent upon
1373. 43 L.Ed.2d 688 (1975); Weinberger V:
their husbands): Reed V. Reed. 404 U.S. 71, 92
Wiesenfeld. 420 U.S. 636, 95 S.Ct. 1225, 43
S.Ct. 251, 30 L.Ed.2d 225 (1971) (presumption
L.E.d.2d 514 (1975); Schlesinger V. Ballard, 419
that men. are better qualified than women to
U.S. 498, 95 S.Ct. 572. 42 L.Ed.2d 610 (1975):
serve as the administrators of estates).
304
455 FEDERAL SUPPLEMENT
men and women government benefits ac-
furthering a proper statutory purpose, the
cording to different criteria and procedures
distinction must bear a strong relation to
has generally been regarded as a low priori-
the government's objective. This require-
ty, Califano V. Goldfarb, 430 U.S. 199, 217,
ment accounts for the result in Craig. In
97 S.Ct. 1021, 51 L.Ed.2d 270 (1977), Fron-
that case, a drinking age differential for
tiero, supra, 411 U.S. at 688-89, 93 S.Ct.
18-20-year-olds was invalidated because the
1764, while public safety, Craig V. Boren,
evidence failed to show a "substantial" cor-
429 U.S. 190, 199, 97 S.Ct. 451, 50 L.Ed.2d
relation between the classification and the
397 (1976), efficiency in judicial administra-
goal of highway safety. 429 U.S. at 204, 97
tion, Reed, supra, 404 U.S. at 75, 92 S.Ct.
S.Ct. 451. This principle also explains why
251, and efforts to alleviate burdens that
the different treatment given male and fe-
fall more heavily on one sex than the other,
male officers and widowers and widows was
Schlesinger V. Ballard, 419 U.S. 498, 508--
upheld in the Ballard and Kahn decisions.
509, 95 S.Ct. 572, 42 L.Ed.2d 610 (1975),
In those cases, preferential treatment for
Kahn V. Shevin, 416 U.S. 351, 352-55, 94
women was found to be legitimate because
S.Ct. 1734, 40 L.Ed.2d 189 (1974), are ac-
female officers were persuasively shown to
ceptable.
be at a disadvantage as compared to men in
[9] Just as critical a factor is the degree
seeking promotions and because the death
to which the classification serves to advance
of a spouse was proved to create a greater
the objective that the government has put
financial burden on widows than on widow-
forward as the basis for the difference in
ers. 419 U.S. at 508, 95 S.Ct. 572; 416 U.S.
treatment. Obviously, if the classification
at 355, 94 S.Ct. 1734.
under review bears no relation to the statu-
tory purpose, the distinction is suspect.
[10, 11] While the cases since Reed
That was the situation in Wiesenfeld. At
make clear the factors that are to be ap-
issue there was a statute that purported to
plied in sex discrimination cases, questions
provide financial benefits to surviving par-
persist concerning the precise way they are
ents. to make it easier for them to stay at
to be fashioned together to form a single
home and care for their dependent children.
framework for review. The most impor-
However, because the statute aided only
tant of these uncertainties relates to the
surviving mothers and not fathers, the clas-
requirement that classifications between
sification was found to be "entirely irra-
the sexes must advance legitimate legisla-
tional". because the objective of facilitating
tive objectives. The question concerns the
better care for dependent children did not
degree of correlation that must be shown
depend on the gender of the surviving par-
between the differences in treatment ac-
ent. 420 U.S. at 651, 95 S.Ct. 1225. Surviv-
corded to men and women and the objec-
ing fathers as well as mothers needed fi-
tives sought to be achieved. This issue is of
nancial assistance to remain home to care
signal importance because the required de-
for their children. Id. Moreover, even
gree of correlation is the principal factor
where a classification is viewed as actually
that fixes the strictness with which gender
46. These unresolved questions include: are all
correlation between the government's objective
traditional ways of thinking about the roles of
and the classification under review, by qualify-
men and women to be viewed as suspicious in
ing lesser state objectives as sufficiently impor-
like degree: is the appropriate degree of suspi-
tant to justify sex-based discrimination? Are
cion related to nature of the loss that is occa-
courts confined to looking at the actual statuto-
sioned by the difference in treatment between
ry purposes of sex-based legislation or are they
the sexes or to the importance of the disadvan-
permitted to accept post fact rationalizations;
tage? How much special deference is due clas-
what statutory objectives qualify as of suffi-
sifications by gender in the areas of tax legisla-
cient importance to outweigh different treat-
tion (Kahn, e. g.), military affairs (Ballard. e. g.)
ment accorded to men and women; is the nec-
or social welfare (Goldfarb, e.g.); in what other
essary degree of importance related to the
areas are legislative classifications by sex enti-
gravity of the harm or loss occasioned by the
tled to a deferential regard: how should this
gender-based classification?
deference be manifested; by requiring less of a
OWENS V. BROWN
305
Cite as 455 F.Supp. 291 (1978)
classifications are to be serutinized. As the
this is a governmental objective of the
necessary measure of correlation moves
highest order and a purpose entitled to
higher, the level of scrutiny intensifies to
great respect. But nowhere in the papers
the same extent, and as a weaker "congru-
filed in this action have defendants pointed
ence" becomes sufficient, the level of re-
to any evidence indicating that military
view is correspondingly relaxed. Craig, su-
preparedness was indeed the objective be-
pra, 429 U.S. at 199, 97 S.Ct. 451.
hind the prohibition. The apparent reason
is that the part of section 6015 being chal-
[12] But a single standard seems to
lenged in this lawsuit was added casually,
have emerged. As recently formulated in
over the military's objections and without
the Craig decision and quoted with approval
significant deliberation.
in Goldfarb, the degree to which a "sex-cen-
tered generalization actually comport[s]
Section 6015 was enacted some 30 years
with fact," Craig, supra, 429 U.S. at 199, 97
ago as part of a larger piece of legislation,
S.Ct. at 458, must be substantial: "[t]o
requested by the military, that first admit-
withstand constitutional challenge,
ted women to regular, peace-time military
classifications by gender must be substan-
duty.50 A review of the legislative history
tially related to the achievement of [impor-
behind the provision reveals that section
tant] objectives." Goldfarb, supra, 430 U.S.
6015 was originally introduced without the
at 210-11, 97 S.Ct. at 457, quoting, Craig,
proviso that prohibits women from serving
supra, 429 U.S. at 197, 97 S.Ct. (empha-
aboard Navy vessels other than hospital
sis supplied). Judged by this standard,
ships and transports. The prohibition was
the classification drawn by section 6015
added during committee hearings on the
fails to withstand scrutiny.
legislation following an exchange between
a committeeman and Navy officials. In
response to an inquiry, the Navy stated that
(2)
while it had no present intention to assign
In an effort to demonstrate the validity
women to general shipboard duties, it "did
of section 6015's prohibition, defendants
not feel
that it was necessary to
maintain that the basic purpose of the en-
write that into law." 52 However, the com-
actment was to increase the combat effec-
mitteeman insisted that the question not be
tiveness of Navy ships.48 Unquestionably,
left to the Secretary of the Navy's discre-
47. As noted in Goldfarb, the substantiality of
asked to articulate section 6015's legislative
the correlation between purpose and classifica-
purpose, defendants responded:
tion may be measured in terms of the degree to
Congress has apparently determined that
which gender-based. classifications are "over-
10 U.S.C. § 6015 bears a rational relationship
inclusive" or "under-inclusive." 430 U.S. at
to and substantially furthers legitimate and
211 n. 9. 97 S.Ct. 1021. If, for example, a
important governmental objectives. As this
gender classification presumes all women to
litigation proceeds, defendants will endeavor
have a certain trait when in fact only a fraction
to demonstrate their perception of that con-
do. the classification is "over-inclusive." Con-
gressional determination.
versely, if legislation presumes women to have
Defs. Ans. to Pl. Sec. Int. No. 66 (emphasis
a certain characteristic when many men have
supplied).
the same trait, the provision may be viewed as
To date, defendants have yet to supplement
"under-inclusive." In the instant case, the
this response regarding section 6015's legisla-
problem with section 6015 is "over-inclusive-
tive purpose.
ness" since the statute presumes all women to
be unqualified for all positions on all ships
50. Women's Armed Services Integration Act of
currently in use by the Navy.
1948, Pub.L.No. 80-625, 62 Stat. 368 (1948).
48. See Defs. Mot. for Sum. Judg., at 16 ("maxi-
51. Hearings before the Subcommittee on Or-
mum combat effectiveness of Navy ships" and
ganization and Mobilization of the House Com-
"a strong Navy").
mittee on Armed Services, 80th Cong., 2d Sess.
5689-5713 (1948).
49. Defendants seem to admit as much in their
answers to plaintiffs' interrogatories. When
52. Id. at 5689.
AnalogizetoHIV? ?
Crejected in Doe n Mirsh)
306
455 FEDERAL SUPPLEMENT
tion, and so appropriate language was
tained in section 6015 serves a number of
added during the session.
legitimate governmental objectives. The
The discussion with the Navy officials
first and foremost of these is the objective
sheds little light on the rationale for exclud-
of maintaining the most effective naval
ing women members from serving aboard
combat force possible. Defendants reason
naval ships. But this much appears to be
that inasmuch as broad prohibitions like
certain. The provision was not directed at
section 6015 have impeded military authori-
enhancing military preparedness because
ties in their efforts to gather information
the sweep of the prohibition was purposely
about the capabilities of women and the
extended to cover both combat assignments
effects of enlarging female utilization,
"there [remain] a number of legitimate con-
and noncombat assignments. Nor was it
cerns with regard to full sexual integration
inserted to take account of the practical
of the combat arms of the United States
considerations associated with integrating
Armed Forces." These concerns focus on
shipboard personnel, such as increased costs,
the unknown effects that full sexual inte-
the need to equip ships to provide quarters
gration might have on group dynamics un-
for female personnel, adjustments in func-
der combat conditions, on the ability of the
tions, or the necessity of preparing all male
Navy to operate as effectively as it might
crews to accommodate their female coun-
with all male combatants, on the capacity
terparts. The transcript of the hearing is
of the American people to accept the pros-
conspicuously lacking in deliberation on any
pect of female combat casualties, and on
of these points. Instead, the sense of the
the attitude of enémies to engage the Unit-
discussion is that section 6015's bar against
ed States in combat because of a perceived
assigning females to shipboard duty was
weakness in our combat arms. Defendants
premised on the motion that duty at sea is
conclude that "The fact that these are legit-
part of an essentially masculine tradition.
imate concerns to which there are presently
[13] Defendants seemingly recognize
no considered and studied answers provides
that this legislative background tends to
a persuasive rationale for the present re-
suggest a statutory purpose more related to
strictions on full integration." 57
the traditional way of thinking about wom-
This argument is unpersuasive. Defend-
en than to the demands of military prepar-
ants' line of reasoning would have force if
edness. Nevertheless, they point out that
the issue in this case were the validity of a
regardless of intent the statutory bar con-
statute that precluded women from being
53. Id. at 5690, 5711, (remarks of Cong. Vinson).
well as combat ships. Just fix it so that they
The Congressman stated:
cannot go to sea at all.
I am just throwing it out for what it is worth.
54. Id. at 5711.
Those are my views. I think it will strength-
en the bill to have it positively understood by
55. While the "Court need not in equal protec-
Congress that ships are not places to which
tion cases accept at face value assertions of
these women are going to be detailed and
legislative purposes, when an examination of
nobody has any authority to detail them to
serve on ships.
the legislative scheme and its history demon-
Of course, they are not going to be detailed
strates that the asserted purpose could not
to serve on ships, but you cannot tell what
have been a goal of the legislation," Wiesen-
happens
somebody might say they
feld, supra, 420 U.S. at 648 n. 16, 95 S.Ct. at
need a few of them up there to do communi-
1233, there is no requirement that the Court
cations or other kinds of work and I I do not
must overlook unexpressed legislative objec-
think a ship is a proper place for them to
tives that reasonably could have formed the
serve. Let them serve on shore in the conti-
basis of the statute in question. Thus, defend-
nental United States and outside of the Unit-
ants' rationalization of what purposes are
ed States, but keep them off the ships. Of
served by section 6015 is entitled to considera-
course, they ought to be on hospital ships.
tion.
I would not want to restrict [the prohibi-
56. Defs. Mot. for Sum. Judg., at 14.
tion] to combatant vessels. Put down 'serve
in sea duty.' You have auxiliary ships as
57. Id. at 15.
OWENS V. BROWN
307
Cite as 455 F.Supp. 291 (1978)
considered solely for shipboard combat as-
comes apparent. Significantly, defendants
signments. The same is true if the effect
do not make the argument that the de-
of deciding this case in plaintiffs' favor
mands of military preparedness and effec-
were to require the full integration of men
tiveness justify excluding all women from
and women in the naval forces. This is SO
all shipboard duties. Nor could they given
because the seriousness of the unanswered
the fact that they have proposed changes in
questions raised by defendants is alone a
section 6015 58 that would permit qualified
convincing reason why no authority, wheth-
women to serve on ships in a wide variety
er legislative, executive or judicial, should
of noncombat positions. As the Secretary
act to bring about the total integration of
of the Navy has observed, "the revised law
Navy women into combat roles before the
would permit temporary duty assignments
consequences have been fully explored.
of women on any naval vessel not engaged
But the issue presented in this case is not
or expected to be engaged in combat."
whether the naval forces should be com-
And as the Secretary has also noted, if the
pletely integrated and the roles of male and
absolute bar contained in section 6015 were
female members made perfectly equal.
lifted, "women pilots could land aircraft on
Nor is the question whether Navy women
a carrier, women inspectors and technicians
should have the same rights as men to
could go aboard a destroyer or cruiser, and
receive assignments as combatants aboard
our female midshipmen could get real train-
Navy ships. The issue is rather the validity
ing at sea." 60
of a prohibition that not only forecloses the
Navy's discretion to integrate women into
Unlike with the original version of sec-
combat positions for which their qualifica-
tion 6015, the proposed amendments are
tions and the effects of their presence are
based on evidence compiled as a result of
unknown, but also bars Navy authorities
studies and experiments conducted by mili-
from exercising their discretion to assign
tary authorities. This information shows
female personnel to noncombat duties for
not only that women can "capably perform"
which they are or can be qualified. Con-
at sea, but also that increasing the range of
trary to defendants' assertion, then, the
their assignments will enhance "the opera-
question presented is the reasonableness of
tional effectiveness and flexibility of avail-
a statutory bar. that draws no distinctions
able forces." 62 Moreover, "more efficient
based on considerations of military effec-
utilization of women" will help to solve the
tiveness among any of various assignments
"particularly worrisome" problem posed by
available to Navy personnel on ships.
"[t]he shrinking manpower pool that we see
Once the questions about full sexual inte-
in front of use in the next decade." 63 And
gration and combat assignments are put
finally, permitting women to serve aboard
aside, the overbreadth of section 6015 be-
ships "would not increase the budgetary
58. Letter of W. Graham Claytor, Secretary of
60. Address of W. Graham Claytor, Secretary of
the Navy, to the Speaker of the House, dated
the Navy, delivered July 21, 1977, id., Attach.
May 9, 1977, Defs. Ans. to Pl. First Int., Attach.
13, at 5.
9. The proposed amendments to section 6015
would replace the current prohibition with this
61. See note 17 supra. See also Statement of
language:
Edward Hidalgo, Assistant Secretary of the
However, women may not be assigned to
Navy, on Employment and Utilization of Wom-
duty in vessels or aircraft that are engaged in
en in the Navy, delivered July 1977 to The
combat missions nor may they be assigned to
Priorities and Economy Subcommittee of the
other than temporary duty on vessels of the
Joint Economic Committee, Defs. Ans. to Pl.
Navy except for hospital ships, transports.
First Int., Attach. 12.
and vessels of a similar classification not
expected to be assigned combat missions.
62. Letter of W. Graham Claytor. supra note 58,
59. See SEC-NAV Instruction 5030.1G, Defs.
at 1.
Ans. to PI. First Int., Attach. 16 (listing combat
ship, combat craft, auxiliary ship and service
63. Address of W. Graham Claytor, supra note
craft classifications).
60. at 5.
308
455 FEDERAL SUPPLEMENT
requirements of the Department of De-
withstand
challenge.
This
is
so
even
fense.'
64
though "heightened levels of scrutiny" ap-
[14] These considerations are particular-
ply in the area of sex discrimination. Gold-
ly well suited for study by Congress in
farb, supra, 430 U.S. at 225, 97 S.Ct. 1021
regards to defining the limits of female
(dissenting opinion). But validity does de-
utilization in the Navy. But they are also
pend on an unusually high degree of correl-
highly relevant to the question of whether
ation between sexual traits underlying dif-
section 6015 is "so unjustifiable as to be
ferences in treatment and important legis-
violative of due process." Bolling V.
lative objectives. As the Supreme Court
Sharpe, 347 U.S. 497, 499, 74 S.Ct. 693, 694,
found in Goldfarb with respect to financial
98 L.Ed. 884 (1954). The core protection
aid, a correlation of approximately 90% be-
afforded by the equal protection component
tween the characteristic and the objective
of the fifth amendment is that laws favor-
was insufficient to withstand attack, id. at
ing members of one gender and disadvan-
238 n. 7, 97 S.Ct. 1021 (dissenting opinion),
taging members of the other be reasonably
even though Congress is "wide latitude to
and, beyond that, substantially related to
create classifications that allocate noncon-
the achievement of some important objec-
tractual benefits under a social welfare pro-
tive. Goldfarb, supra; Craig, supra. To
gram." Id. at 210, 97 S.Ct. 1021 at 1028.
the extent that legislative classifications
Congress, of course, enjoys the same de-
are based on "overbroad generalizations"
gree of latitude in legislating in the area of
about the traits, behavior and capabilities
military affairs. Ballard, supra, 419 U.S. at
of the different sexes, Ballard, supra, 419
510, 95 S.Ct. 572. However, the record in
U.S. at 507, 95 S.Ct. 572, their reasonable-
the case at bar does not suggest that the
ness is rightly called into question. Be-
correlation between female capabilities and
cause section 6015 operates to bar an entire
overall naval effectiveness even approaches
sex from a wide, though by no means un-
that deemed to be inadequate in Goldfarb.
limited, range of career and service oppor-
tunities for which the highest military au-
thorities have determined them to be quali-
(3)
fied, the sweep of the statute is too broad
[16] In addition to military efficiency,
to pass muster. 65
defendants argue that section 6015's abso-
[15] Obviously, legislative distinctions
lute bar should be upheld because any de-
between members of the opposite sexes
gree of integration of men and women
need not be drawn with perfect precision to
aboard Navy ships is apt to cause morale
64. Letter of W. Graham Claytor. supra note 58.
the issue was whether a government objective
at 2.
was reasonably or substantially furthered by
providing a single benefit or preference to one
65. In reaching this conclusion, the Court has
sex rather than another. Thus the issue never
focused on those noncombat positions for
arose of whether a legislative classification
which the evidence shows women are fully.
should be struck down because it was highly
qualified. As to those assignments, the statu-
irrational as to one benefit and less irrational
tory bar is irrational because both men and
as to another.
women can perform capably. However, look-
In the present case, the Court has chosen to
ing at the entire range of noncombat and com-
measure section 6015's rationality both from
bat assignments available to Navy personnel.
the standpoint of women's proven ability to
the statute takes on a less irrational appear-
perform capably in noncombat shipboard posi-
ance because most positions in the Navy are
tions and from the perspective of their yet
combat positions and the available data is un-
unproven ability to be satisfactorily integrated
clear about the effect of integrating women
into the entire range of Navy duties, noncom-
into combat roles.
bat and combat alike. The result is that the
This feature of the instant case, that more
statutory presumption is wholly irrational as to
than one type of opportunity or entitlement is
noncombat assignments and largely rational
distributed along sexual lines, distinguishes this
but not rational enough as to the full range of
case from the facts of the sex discrimination
naval duties.
cases decided since Reed. In those decisions,
OWENS V. BROWN
309
Cite as 455 F.Supp. 291 (1978)
and discipline problems among crews.
lems might arise from integrating ship-
Wholly aside from the fact that any uncer-
board crews are matters that can be dealt
tainties in this regard are largely traceable
with through appropriate training and plan-
to the statute's obvious limitation on exper-
ning.
imenting with mixed crews, this argument
is also belied by the facts. Indeed, the
IV. Conclusion
results of the experiment conducted by the
Navy on the USS Sanctuary provide ample
Once the decision is reached that section
refuting evidence that assigning women to
6015's barrier to women's career and service
noncombat duty on vessels will pose no
opportunities is too broad to pass muster, a
insurmountable obstacles. As the Com-
few comments are required to put this deci-
mander of the Atlantic Fleet has stated:
sion in perspective. As the Court has
"Commanding Officers have sufficient au-
viewed it, the crucial question raised by
thority to deal with persons having difficul-
plaintiffs in this case centers on the exer-
ty adjusting to mixed crews. Special au-
cise of discretion: Ordinarily, and for obvi-
thority is not required any more than in
ous and understandable reasons, the exer-
handling racial problems. 67 And: "Ad-
cise of discretion in the area of military
justments and thawing of previously held
affairs is left to the executive branch of
barriers to the presence of women and ac-
government subject, of course, to legislative
ceptance by the male ship's company are
oversight. Thus when, 30 years ago, Con-
social facts of life which must be recognized
gress enacted section 6015 to guide the
and dealt with. 68
Navy's discretion in qualifying and assign-
Defendants' concerns about undermining
ing women to military duty, it was unques-
morale and discipline argue more for pru-
tionably acting within the scope of its con-
dent planning in the assignment of women
stitutional authority to oversee the develop-
to Navy ships than for not beginning the
ment and use of a military force. But
process at all. In the words of the Chief of
merely because this legislative choice fell
Naval Operations: "the transition would
within the bounds of congressional power
have to be carefully planned. Any time
did not of necessity make it invulnerable to
you have boys-girls it's a little difficult, but
the requirement of reasonableness imposed
the problems, I guess, are no different than
by the fifth amendment. As the record in
what's happening in college dormitories."
this case makes amply clear over a genera-
Nor would permitting women to join men
tion later, when Congress carved out the
on duty at sea pose serious problems in
disputed exception to the Navy's ability to
terms of providing separate quarters and
use women aboard Navy vessels, it acted
facilities. As with morale and discipline,
without serious deliberation, against the ex-
this concern also speaks more to careful
pressed judgment of the military and, by
planning than to not beginning at all since,
foreclosing the Navy's discretion regarding
as defendants themselves concede, Navy
women well beyond the legitimate demands
vessels are periodically refitted and mod-
of military preparedness and efficiency, it
ernized to take account of changing needs. 70
acted arbitrarily.
In short, none of the practical concerns
Because the Court has concluded that the
voiced by defendants regarding the integra-
blanket limitation imposed by section 6015
tion of male and female personnel afford a
cannot presently be justified, the effect of
warrant for upholding the total exclusion
today's decision is to restore to the military
reflected in section 6015. Whatever prob-
an area of discretion that the 80th Congress
66. Defs. Ans. to Pl. Sec. Int. Nos. 37-39 &
69. Id., Attach. 15, Quoted Statement of Admi-
Attach. 7.
ral James L. Holloway 3d.
67. Id., Attach. 7, Third Endorsement on USS.
70. Id., Nos: 60-61 & Attach. 1.
Sanctuary, at 6.
68. Id., Attach. 7, Second Endorsement, at 4.
310
455 FEDERAL SUPPLEMENT
unreasonably withheld. This, of course,
when it
may well be a temporary adjustment. De-
COMMONWEALTH PETROCHEMI-
similar o
fendants have made the Court quite aware
CALS, INC., et al.
of a con
of the fact that a considerably narrower
sea betv
v.
limitation on the use of Navy women is
press sta
currently being considered by Congress.
S/S PUERTO RICO, her engines, boilers,
the prov
But until the Congress does exercise its
tackle, etc., Puerto Rico Maritime Ship-
ject to t
discretion in this area, it is incumbent upon
ping Authority and Leonard Bros.
ter. Car
the executive to fashion policy regarding
Trucking Co.
13, 46 U
women without regard to the absolute and
Civ. A. No. M-76-1126.
overbroad presumption reflected in section
2. Shipp
6015. That much is required by the equali-
United States District Court,
The
ty principle embodied in the fifth amend-
D. Maryland.
by Sea -
ment.
not be P
July 27, 1978.
a reasor
However, nothing in this decision is
riage of
meant to shape the contours of Navy policy
U.S.C.A.
concerning the utilization of female person-
Consignees of two transformers
nel. As the Court has noted in deciding the
brought suit against ship, shipping carrier
3. Shipp
merits of plaintiffs' claims, there remain
and trucking company to recover for dam-
Whe
many unanswered questions about the ef-
age to one of the transformers. The ship-
press sta
fects of full sexual integration that may
ping carrier admitted its liability but
visions o
well convince military authorities that
claimed that the damages were limited un-
bill of la
women members should be excluded from
der the Carriage of Goods by Sea Act to
fully as
shipboard combat assignments, or even
$500. The District Court, James R. Miller,
express
from permanent assignment to some non-
Jr., J., held that: (1) the bill of lading was
Goods b)
combat positions, or for that matter, from
subject to the COGSA; (2) under the bill of
§§ 1303(
all shipboard duties until such time as the
lading, the COGSA was paramount to any
4. Shipp
vessels are properly equipped and crew
term of the bill of lading; (3) there is a
Whe
members properly trained to accommodate
"package" for purposes of the COGSA
term the
their female counterparts. Those are es-
when, in the course of preparation for
extent to
sentially military decisions that are entrust-
transportation or handling by the shipper or
would b
ed to executive authorities and the Court
shipper's agent the goods are partially or
mount t
expresses no view whatever on what their
completely covered or contained by the time
outcome should be. But what the Court is
they are delivered or entrusted to the custo-
Carriage
46 U.S.C
requiring is that executive authorities move
dy of the carrier, and (4) the transformer.
forward in measured steps to approach
which weighed approximately 44 tons and
5. Shipp
these issues free from the absolute bar
was attached to a roll on-roll off "low boy'
Whe
erected by section 6015.
trailer designed for use on a roll on-roll off
Act was
ship was not a "package" under the COGSA
lading, i
V. Disposition
and, therefore, the liability limit was $500
lading
For the foregoing reasons, the Court con-
per cubic foot.
"package
cludes that plaintiffs' motion for summary
Judgment for plaintiffs.
of ladin
judgment must be granted, and defendants'
though t
crossmotion denied. An appropriate order
nition of
will issue of even date herewith.
1. Shipping
a
106(3)
had beer
Although the Carriage of Goods by Sea
Commiss
Act does not apply as a matter of course to
Act, § 1
W
KEY NUMBER SYSTEM
the carriage of goods by sea between any
6. Shipp
United States port and any other port of
The
the United States, the Act provides for
no Mutho
incorporation of its terms by reference
of the C:
IHIVI Constitutional claim fails
1040
FEDERAL SUPPL M NT
DOE V. RICE
of an incoming administration to reorga-
Cite as 800 F.Supp. 1041 (D.Puerto Rico 1992)
1041
ployee who is a member of an opposing
fendant Scott referred to the individuals
-nize the structure of departments, to read-
political party." Id. (noting that factfinder
just departmental priorities, and to initiate
should give some deference to the govern-
who assumed the duties formerly per-
formed by plaintiffs as her "confidence
John DOE; and Local 3936 of the Amer-
new procedures to carry out its functions.
ment's explanation of its needs). In cases
implicating this prong of the defense, "the
committee," the evidence showed that
ican Federation of Government Em-
889 F.2d at 1221. It thus accepts the fact
plaintiffs were career employees and-that
ployees, Plaintiffs,
that a changeover in administrations is
factfinder must look specifically at the
their positions could not be classified as
V.
"likely to produce substantial alterations in
duties in question to determine whether
they concern politically sensitive matters."
"trust" or policymaking positions. With-
certain employees' jobs not because those
Honorable Donald RICE, Secretary of the
ployees are members of the outgoing
Id. at 1221; see also Rutan, 497 U.S. at
out proof that the positions held by plain-
United States Air Force; Lt. General
ty but because the incoming party, as a
110 S.Ct. at 2736-37, 111 L.Ed.
tiffs were politically-sensitive positions, de-
Conaway, Chief of the National Guard
matter of policy, does not view those jobs
at 65-66 (citations omitted) (government in-
fendants fail to establish the most basic
Bureau; Puerto Rico Air National
to be important." Id. (emphasis in origi-
terest in securing employees who will loyal-
defense. element of this aspect of the changeover
Guard; William Miranda-Marin, the
nal). For example, if defendant Scott had,
ly implement its policies is valid but can be
Adjutant General of the Common-
soon after her arrival, reorganized the re-
adequately served by choosing or dismiss-
wealth of Puerto Rico; Colonel Manuel
gion to streamline costs and in the process
ing certain high-level employees on the ba-
[11] As a result, the Court reaffirms its
A. Guzman of the Puerto Rico Air Na-
eliminated several of the positions held by
sis of their political views); Monks v. Mar-
finding that defendants have failed to re-
tional Guard; Colonel Gilberto Colon,
plaintiffs, she could have used this aspect
linga, 923 F.2d 423 (6th Cir 1991) (citations
but plaintiffs' prima facie showing by ei-
as Personnel Officer of the Puerto Rico
of the changeover defense to justify her
omitted) ("In addressing whether a job is a
ther presenting an alternative, non-discrim-
Air National Guard; All Officials in
action; however, where, as here, an incom-
policy-making position, this court held that
inatory reason for the actions taken or
Their Defendants. Individual and Official Capacity,
ing administration does not eliminate jobs
the 'relevant focus of analysis is the inher-
establishing a valid defense to their ac-
but instead merely removes duties from
ent duties of the position in question, not
tions.9 The Court once again finds that
No. Civ. 91-1169CCC.
one set of employees and gives them to
the work actually performed by the person
defendants effectuated a severe and politi-
another, the changeover defense provides
who happens to occupy the office.' Nek-
cally-motivated change in plaintiffs' work
United States District Court,
D. Puerto Rico.
no protection.⁷
olny v. Painter, 653 F.2d 1164, 1170 (7th
conditions which imposed a substantial bur-
[9, 10] The second aspect of the change-
.1981), cert. denied, 455 U.S. 1021, 102
den on their right to free association and
Aug. 31, 1992.
over defense "assumes that the new admin-
S.Ct. 1719, 72 L.Ed.2d 139 (1982) ("The test
that this right was not outweighed by the
istration may, at times, feel the need to
is whether the position held by the individu-
government's interest in effectively imple-
Puerto Rico Air National Guard
assign duties deemed especially critical to
al authorizes, either directly or indirectly.
menting its policies. Plaintiffs' Motion Re-
(PRANG) member who was discharged af-
its political philosophy to employees who
meaningful input into government decision
questing Judgment is therefore GRANTED
ter testing positive for Human Immune
share that philosophy." Id. Such a shift
making on issues where there is room for
and the prior Judgment of this Court is
Deficiency Virus (HIV) and union brought
principled disagreement on goals or their
REAFFIRMED.
10
of duties is proper, however, only where
civil rights action alleging unlawful dis-
the incoming administration "can show a
implementation.")
IT IS SO ORDERED.
crimination on basis of handicap. The Dis-
reasonable basis for believing that such an
Defendants have not mounted a particu-
trict Court, Cerezo, J., held that: (1) appli-
employee would likely be more helpful in
larly aggressive attack based on this aspect
cation of regulation, which resulted in dis-
implementing the new policies than an em-
of the changeover defense.8 Although de-
charge of member, did not violate mem-
ber's Fifth and Fourteenth Amendment
7. Even assuming arguendo that the defense pro-
needs of the region-the First Amendment relat-
vides protection for such actions, it only does so
ed interests of which she has not explained-
SERVICE
KEY NUMBER SYSTEM
rights; (2) mandate of regulation that
where the new administration can point to stat-
such opinions are insufficient to support a
PRANG members, who test positive for
ed policies which the actions were designed to
changeover defense. To the extent that she re-
HIV, are not on active duty, and are not
advance. See 889 F.2d at 1221-22 (in evaluating
lied on certain conditions in the region that she
entitled to military medical health care, be
a changeover defense the factfinder should take
felt needed to be addressed immediately, these
into account whether the actions occurred pre-
conditions implicated primarily efficiency con-
transferred to Standby Reserves if they
cipitately or after some opportunity for apprais-
cerns which did not justify the actions taken.
cannot be used in nondeployable position
al, whether they were connected to previously
Finally, to the extent she feels that the change-
complied with policy statements on HIV of
announced goals, and whether they flowed from
over defense provided her with the freedom to
a procedural or organizational study). Defen-
Department of Defense and Department of
take whatever actions she desired as long as she
dant Scott has asserted that she relied on her
did so soon after assuming control of the re-
Air Force in effect at time member was
own "perceptions" of the policies of the new
gion, she misperceives the nature of the defense.
transferred to Standby Reserves; (3) mem-
administration. As a preliminary matter, since
Accord 889 F.2d at 1222 ("drastic changes in job
making positions. Defendants asked for, and
defendant Scott does not present the new ad-
duties and conditions occurring early in the life
were granted, an opportunity to address this
nity to demonstrate that the asserted justifica-
ministration's "explanation of how changes
made shortly after it assumed power fit into its
of an administration may not be made entirely
question in a supplemental memorandum of
tion was simply a pretext. 889 F.2d at 1209.
free of political constitutional liability.")
law. The memorandum of law that was submit-
overall policy objectives" (889 F.2d at 1221), her
way. ted did not, however, address this issue in any
10. Plaintiffs Vázquez and Diaz need not be rein-
justifications are entitled to little if any defer-
stated, since the former has died and the latter
ence. Furthermore, if by stating that she relied
8. During the hearing held in this case, the Court
has retired since the onset of this case. The
on her own perceptions she means that she
specifically inquired as to whether defendants
9. Had defendants brought forth such evidence,
other two prevailing plaintiffs, Agosto and Ca-
relied on her own unstated opinions about the
contend that plaintiffs held sensitive policy
plaintiffs would have been allowed the opportu-
dered. macho must be immediately reinstated as or-
1042
F DERAL SUPPLEMENT
DOE V. RICE
ber had no right to hearing and notice
8. Militia 10
Cite as 800 F.Supp. 1041 (D.Puerto Rico 1992)
1043
physical standards, are matters which can
under regulation governing PRANG which
best be entrusted to military itself.
Statutes relating to procedure for re-
Guard Technician Act of 1968 in September
was derogated prior to his discharge; (4)
tirement or separation for physical disabili-
1969. On June 29, 1990, Doe tested posi-
member did not have property interest in
4. Armed Services
ty did not apply to discharge of Puerto Rico
tive for the Human Immune Deficiency Vi-
technician position he occupied at time of
Constitutional Law 70.1(7)
Air National Guard (PRANG) member who
rus (HIV). On September 21, 1990 plaintiff
his separation; and (5) statutes relating to
Decision of whether Air Force Reserv-
had tested positive for Human Immune De-
received Special Order AC-73 by which de-
procedure for retirement or separation for
ists who cannot be deployed overseas can
ficiency Virus (HIV) pursuant to regulation
fendant Colonel Manuel A. Guzmán, citing
physical disability did not apply to mem-
remain in deployable positions must be left
governing PRANG; member was not re-
Air National Guard Regulation (ANGR)
ber's discharge.
to military discretion and expertise.
tired due to physical disability. 10
39-10 Chapter 8 as his authority, informed
U.S.C.A. §§ 1214, 1215.
him that effective September 17, 1990 he
Action dismissed.
5. Militia 10
had been relieved of his duties, honorably
See also 776 F.Supp. 633.
9.
Militia
=3
Puerto Rico Air National Guard
discharged and transferred to the Standby
Statute governing consent required for
Reserves. On October 16, 1990, he re-
(PRANG) member who had tested positive
ceived a written communication from de-
for Human Immune Deficiency Virus (HIV)
transfer of Air National Guard member did
1. Constitutional Law =278.6(1)
not require that Governor of Puerto Rico
fendant Colonel Gilberto Colón, Personnel
Militia
10
had no right to hearing and notice under
approve transfer of Puerto Rico Air Na-
Officer of PRANG, informing him that he
Application of regulation governing
regulation governing PRANG which re-
tional Guard (PRANG) member, who had
was no longer eligible to continue in his
Puerto Rico Air National Guard (PRANG)
quired opportunity of hearing before Ad-
tested positive for Human Immune Defi-
technician employment due to his discharge
members who test positive for Human Im-
ministrative Discharge Board, and which
ciency Virus (HIV), to Standby Reserves.
from military service. Various requests
mune Deficiency Virus (HIV) which result-
was derogated prior to his discharge.
10 U.S.C.A. §§ 1004, 1004(c).
for revision of these decisions brought no
ed in discharge of PRANG member, who
replies. Plaintiffs filed this action.
was not on active military duty and whose
6. Militia -10
medical care was privately provided, and in
Application of regulation governing
Nora Vargas-Acosta, Vargas & Ramirez
Following an evidentiary hearing held on
his subsequent ineligibility to perform tech-
Puerto Rico Air National Guard (PRANG)
Law Offices, for plaintiffs.
August 1, 1991, the preliminary- issue of
nician employment, as a result of testing
members who test positive for Human Im-
Fidel Sevillano-del-Río, Asst. U.S. Atty.,
whether the Court had jurisdiction to enter-
positive for HIV, did not violate member's
mune Deficiency Virus (HIV) which result-
Mayra Maldonado, Dept. of Justice, Com.
tain these matters, or whether Doe was
Fifth and Fourteenth Amendment rights;
ed in discharge of PRANG member, who
of Puerto Rico, for defendants.
required to exhaust administrative reme-
was not on active military duty, for whom
dies was resolved in his favor in an Opinion
Secretary of Air Force acted within Secre-
and Order entered on November 7, 1991
tary's discretion in making nondeployabili-
a nondeployable position could not be
OPINION AND ORDER
(docket entry 32).
ty a mandatory requirement for HIV sero-
found, and whose medical care was private
ly provided, and in his subsequent ineligi-
CEREZO, District Judge.
positive individuals and no compatible non-
A consolidated hearing on the merits for
deployable position was available.
bility to perform technician employment, as
This action for declaratory and injunctive
preliminary and permanent injunction was
U.S.C.A. Const.Amends. 5, 14.
a result of testing positive for HIV, did no:
relief arises from alleged violations to 42
held on December 16 through 18, 1991, and
violate Department of Defense and Air
U.S.C. §§ 1983, 1988, et seq. and the Fifth
on February 13, 14, 18 and 19, 1992. The
2. Militia
Force policies prohibiting use of results
and Fourteenth Amendments of the Consti-
parties submitted their post-trial briefs on
Mandate of regulation governing Puer-
obtained from laboratory tests for HIV as
tution of the United States. Plaintiffs
March 31, 1992.
to Rico Air National Guard (PRANG) that
sole basis for service member's separation
John Doe, a former member of the Puerto
PRANG members, who test positive for
Rico Air National Guard (PRANG) with
Plaintiffs' action focuses on their pri-
mary contention-that ANGR 39-10 on its
Human Immune Deficiency Virus (HIV),
7. Constitutional Law 277(2)
over twenty-one years of civilian employ-
are not on active duty, and are not entitled
ment as a National Guard Technician, and
face and as interpreted and applied by de-
Militia
10
to military medical health care, be trans-
Puerto Rico Air National Guard
Local 3936 of the American Federation of
fendants violates the Fifth and Fourteenth
Government Employees, the union which
Amendments to the United States Constitu-
ferred to Standby Reserves if they cannot
(PRANG) member who tested positive for
be used in nondeployable position complied
represents National Guard technicians,
tion. Peripheral violations include allega-
Human Immune Deficiency Virus (HIV)
with policy statements on HIV of both De-
and who was subsequently discharged and
brought this action alleging unlawful dis-
tions of noncompliance with 10 U.S.C.
§§ 1201-1221, as well as procedural and
partment of Defense and Department of
rendered ineligible to perform technician
crimination on the basis of a handicap
substantive due process claims related to
Air Force in effect at time that PRANG
employment did not have property interes:
(AIDS). Defendants include the Secretary
member, who tested positive for HIV, was
of the Air Force, Chief of the National
property rights, liberty rights and inter-
in technician position he occupied at time of
transferred to Standby Reserves.
his separation; therefore, PRANG's at
Guard Bureau, PRANG and various of its
ests. We now address them in turn.
officials.
ANGR 39-10
3. Constitutional Law
70.1(12)
leged failure to give member any hearing
Decisions regarding dual function of
or notify him of his right to appeal prior to
The undisputed facts are as follows:
[1] ANGR 39-10 Section F Acquired
National Guard, that it has set as goal
his dismissal did not infringe his due pro-
Plaintiff John Doe has been a member of
Immune Deficiency Syndrome at para-
graph 8-25 states as follows:
force readiness for mobilization and deploy-
cess rights. 32 U.S.C.A. § 709(b, et
PRANG since March 1967. He was hired
ability of reservists who must r
strict
U.S.C.A.
C
Amends.
5,
14.
15 technician pursuant to the National
a. Members on active duty entitled to
military medical
0 F.Supp.-24
th
care
and
who
1044
FEDERAL SUPPLEMENT
DOE V. RICE
have serologic evidence of HIV infection
with respect to the nature and location of
(Emphasis ours.) Thus, the Secretary of
Cite as 800 F.Supp. 1041 (D.Puerto Rico 1992)
1045
(antibody positive) shall be medically
the duties performed in accordance with
the Air Force, exercised the discretion to
On cross-examination he stated that plain-
evaluated to determine fitness for contin-
operational requirements.
make non-deployability a mandatory re-
tiff could travel as long as he does not
ued service. Those individuals who show
(Emphasis ours.)
quirement for HIV seropositive individuals.
expose himself to places dangerous not
no evidence of clinical illness or other
[2] Seizing upon the only mandatory re-
This policy statement was then notified for
only to him but to others, such as Peru
impairment related to HIV shall not be
striction-the limitation of assignment to
incorporation into the policy statement to
which was having a cholera epidemic. Doe
separated on the basis of serologic evi-
within the United States-and pointing to
all Air National Guard Units on July 2,
could not travel to places where he would
dence of HIV infection. Evaluation,
the discretional nature of the limitation to
1989.2 We, therefore, note that the para-
be exposed to bacterial infection or fungi,
once completed, must be forwarded to
NGB/SG for evaluation and determina-
non-deployable units for HIV seropositive
graph 8-25(b) mandate did comply with the
or places for which he would require vacci-
reservists, the plaintiffs argue that Section
policy statements on HIV of both the De-
nations, such as cities where epidemics are
tion as a continued ANG service.
8-25 as interpreted and/or applied is dis-
partment of Defense and the Department
present or where possibility of exposure to
b. Members not entitled to military
medical health care who display serologic
criminatory because it goes beyond the re-
of the Air Force in effect at the time that
unknown disease exists. Dr. León-Val-
evidence will be transferred to the
striction of the Department of Defense.
John Reserves. Doe was transferred to the Standby
iente also emphasized the possibility and
unpredictability of the onset of symptoms.
Standby Reserves if they cannot be
In contesting the restriction of non-de-
John Doe indicated that his unit has not
used in a non-deployable position.
ployability for HIV seropositive reservists
been mobilized outside the United States
Further explanation of the concept of
(Emphasis ours.)
vis a vis the Department of Defense's dis-
deployability was provided by the testimo-
since 1967, although it has been mobilized
cretional tone on the issue,¹ plaintiffs have
to the United States about every two years.
ny and Declaration (defendants' Exhibit A)
It is undisputed that John Doe was not
on active military duty at the time of his
ignored the reality of the policies and regu-
However, Doe himself has been deployed to
of Joseph Robinson, Jr., Chief of Enlisted
discharge and transfer to the Standby Re-
lations. The Department of Defense, in its
Honduras, Venezuela and Panama for peri-
Policies and Programs, National Guard Bu-
serves, and that his medical care was pri-
August 1988 statement, delegated to the
ods of seven to ten days.
reau, who is also a captain in the United
vately provided through medical plan bene-
Secretaries of the Military the decision to
States Air Force. Captain Robinson ex-
fits to which he was entitled due to his
restrict seropositive members of their
Defendants' witness Sgt. Michael Romeo,
plained that the National Guard is different
technician employment. That is, Doe's
branches to non-deployable positions. The
Superintendent of Physician Standards,
from the regular active duty Air Force in
Department of the Air Force, on May 16,
Medical Waivers and Aerospace Programs,
that the National Guard's whole reason for
case was processed under paragraph 8-
1989, issued its Policy on Identification,
clarified that the concept of deployability
being is to be ready to be deployed, gener-
25(b).
involves meeting specific medical stan-
Surveillance and Administration of Per-
ally outside of the United States. An indi-
A major theme throughout plaintiffs'
sonnel Infected with Human Immune De-
dards, i.e., immunizations, specific training,
vidual guard unit has a very limited num-
pleadings, which provides the theory for
ability to donate blood, in order to be con-
ficiency Virus (HIV)-Action Memoran-
ber of positions identified as non-deploya-
the case, is that this section directly contra-
sidered medically qualified for worldwide
venes the August 4, 1988 Policy Statement
dum in which at Section B, paragraph 9 it
ble. All of the rest are deployable.
deployment. Thus, an HIV seropositive re-
of the Secretary of Defense, which states
states:
servist, although completely asymptomatic,
They further contend that he was not
at Paragraph B7:
Due to the high priority assigned to the
would not be deployable worldwide due to,
given a hearing to determine, among other
Due to the high priority assigned to the
continued medical evaluation of military
among other things, restricted ability to be
things, the necessity of his transfer to a
continued medical evaluation of military
personnel with serological evidence of
immunized and inability to donate blood.
non-deployable position. Plaintiffs' argu-
personnel with serologic evidence of HIV
HIV infection, such individuals shall only
With regard to deployability as a function
ment focuses on the fact that, although
infection, such individuals shall be as-
be assigned within the United States and
of medical limitations, plaintiff's own medi-
Doe's squadron is deployable, it has not
signed within the United States. Addi-
not be deployed overseas. Additionally.
cal expert, Dr. Rafael Rivera-Castaño, tes-
been mobilized overseas since 1967.
tionally, the Secretaries of the Military
military personnel with serologic eir.
tified that persons with HIV are subject to
Luis José Márquez-Ramos, a civilian
may restrict individuals with serologic
dence of HIV shall only be assigned to
opportunistic diseases, that one cannot tell
technician employed by PRANG for nine-
evidence of HIV infection to non-de-
non-deployable units and positions
when symptoms might appear. HIV pa-
teen years, who is also President of plain-
ployable units or positions for pur-
Further,
the assignments of such
tients must avoid possible bruises, cuts,
tiff Union, testified that he has been de-
poses of force readiness. Further
personnel may be limited with respect to
and individuals with other diseases; good
ployed seven times outside of Puerto Rico,
the Secretaries of the Military Depart-
the nature and location of the duties
tant. nutrition, rest and exercise are very impor-
four times to various states and three
ments may, on a case by case basis,
performed in accordance with operational
times to Panama, for relatively short as-
limit assignment of such individuals
requirements.
Dr. Carlos León-Valiente, plaintiffs' ex-
signments. Explaining that deployment
1. In plaintiffs' Memorandum in Support of Mo-
are none the worse for keeping on these individ-
pert on HIV and who has treated John Doe,
usually involves designation of only a few
tion for Preliminary and Permanent Injunction
uals." Repeated at page 33, Post-Trial Brief.
testified that at the time of his discharge,
people to other duty states, Márquez-Ra-
(docket entry 12) at p. 43, they state: "Certainly
We note, however, that plaintiffs did not raise
Doe was asymptomatic and not disabled.
mos stated that usually more reservists
all enlisted personnel who test seropositive for
as an issue in their complaint or present evi-
the H.I.V. and are in the regular Army and Air
dence at trial an equal protection claim related
2 Plaintiffs emphasize, at page 40 of their Mem-
want to be sent overseas than there are
Force are on active duty and are at any given
to disparate treatment of reservists vis a vis
orandum in Support of Preliminary and Perma-
vious documents on this issue and most impor-
moment deployable, yet they are allowed to
active duty regular military personnel. He
nent Injunction that the July 2, 1989 memoran-
continue in the service. Except for some possi-
therefore, do not address this matter as it has
Guard as well
tantly that this policy applies to the Air National
dum clarifies that memo 89-62 represented "the
ble accommodation, the regular Armed forces
not been properly raised before.
current Air Force policy and supersedes all pre-
Plaintiff cites this with approval.
(Emphasis in original.)
1046
FEI RAL SUPPLE ENT
DOE V. RICE
Cite as 800 F.Supp. 1041 (D.Puerto Rico 1992)
1047
opportunities to do so available. The term
cided that reservists who cannot be de-
position(s) exists for which the reservist
tive duty can be involuntarily transferred
"mobilization" refers to deployment of the
ployed overseas cannot remain in deploya-
would otherwise qualify. Inasmuch as the
entire squadron. The squadron practices
ble positions must be left to military discre-
initial policy determination required that
to the Standby Reserve, if they cannot be
utilized in the Selected Reserve.8
for mobilization and every three years sim-
tion and expertise.
Doe be restricted to a non-deployable posi-
ulates such an event. He also testified
[5] Plaintiffs also argue that defen-
tion, and no compatible non-deployable po-
that the deployment determination is a mili-
dants did not follow their own policy by
sition was available for him,⁷ defendants
Property Interest in Technician
tary matter and that disciplinary action can
failing to give John Doe a hearing and
determined that a medical review board
Employment
be taken against an individual who refuses
notice, pursuant to ANGR 39-10, para-
was not needed to evaluate plaintiffs' par-
[7] John Doe's allegation of infringe-
deployment.
graph 8-26 prior to his transfer to the
ticular fitness to fill a non-existent job.
Moreover, considering that reservists such
ment of his due process rights by
[3, 4] It is argued that the National
Standby Reserves. Paragraph 8-26 con-
tains the procedure for discharge, incorpo-
as Doe who are not on extended active duty
PRANG's failure to give him any hearing
Guard is primarily a state militia which is
only federalized for mobilization purposes.
rating the notice procedure of Chapter 1,
do not receive their medical care through
or notify him of his right to appeal prior to
his dismissal is belied by his lack of a
Likewise, plaintiffs also contend that the
Section D, as well as the Administrative
the military establishment, the National
property interest in the technician position
Discharge Board of paragraph 1-23.
Guard does not put the reservist to the
possibility of John Doe's being mobilized
expense of medical testing for the futile
he occupied at the time of his separation,
for active duty overseas is minimal, as well
While ANGR 39-10 paragraph 1-23 re-
quires that the reservists be offered the
purpose of evaluation by a medical board
pursuant to the basic statutory provision
as the general applicability of the Bill of
that would have no position for which to
which created the same. Section 2(1) of
Rights to all citizens, discrimination as a
opportunity of a hearing before the admin-
istrative discharge board, the applicability
evaluate his fitness. We, therefore, find
the National Guard Technicians Act, 32
major obstacle in combating the spread of
AIDS, the United States Public Health poli-
of Paragraph 8-26 to HIV seropositive re-
that the procedure described by Captain
U.S.C. § 709 at (b) states that:
cy against discrimination on the basis of
servists was derogated on August 10,
Robinson falls within the parameters of the
Except as prescribed by the Secretary
HIV Status or AIDS, all necessitate that
1990,4 prior to Doe's discharge,5 and there-
further case-by-case consideration to deter-
concerned, a technician employed under
fore he had no right to a hearing and notice
mine the specific suitability of an individual
subsection (a) shall, while so employed,
the Court rule against this allegedly dis-
under this paragraph. As explained by
HIV positive reservist for an available posi-
be a member of the National Guard and
criminatory action by the National Guard.
tion.
Their arguments, however, fail to take into
Captain Robinson, the change was a recog-
hold the military grade specified by the
consideration the unique role of the mili-
nition that an administrative discharge
[6] Plaintiffs' allegation that ANGR
Secretary concerned for that position.
tary establishment. "A heavy reliance on
board was not the proper forum to deal
39-10, as applied, violates the Department
(Emphasis ours.) 32 U.S.C. § 709(e) fur-
readiness needs has guided the evolution of
with these cases. The administrative dis-
of Defense and Air Force policies prohibit-
ther states that:
DOD and Air Force HIV policy." Colonel
charge board is made up of members of the
ing the use of results obtained from labora-
Notwithstanding any other provision of
John A. Anderson, United States Air Force,
unit who do not have medical backgrounds.
tory tests for HIV as the sole basis for the
law and under regulations prescribed by
et al AIDS Issues in the Military, 32 Air
Moreover, considering that plaintiffs them-
service member's separation are equally
the Secretary concerned—
Force L.Rev. 353, 362 (1990). Decisions
selves have consistently agreed that the
meritless. It is clear from the evidence
regarding the dual function of the National
fitness of an HIV seropositive reservist to
that John Doe's separation was based upon
(1) a technician who is employed in a
continue his duties should be a medical
position in which National Guard mem-
Guard, that it has set as a goal force readi-
the fact that he tested seropositive and a
bership is required as a condition of
ness for mobilization, and the deployability
determination, we find their challenge on
non-deployable position compatible to his
employment and who is separated
of reservists who must meet strict physical
this point contradictory.
could not be found. Moreover, both poli-
from the National Guard or ceases to
standards, are matters which can best be
Plaintiffs also take issue with the fact
cies allow for separation as specifically au-
hold the military grade specified for
entrusted to the military itself. See Peña-
that no medical board was convened. The
thorized in the corresponding memoran-
his position by the Secretary concerned
garicano v. Llenza, 747 F.2d 55 (1st Cir.
procedure followed, as described by Sgt.
dum. In this case, the policy specifically
shall be promptly separated from his
1984); Mindes v. Seaman, 453 F.2d 197
Romeo, calls for convening a medical board
states that reservists not on extended ac-
technician employment by the adju-
(5th Cir.1971). That the Air Force has de-
after it is determined that a non-deployable
6. Captain Robinson testified that the necessity
3. Paragraph 8-26 states as follows:
5. testified that he believes it was during the
of compatibility means that the military posi-
tion for Doe, and that her efforts to locate such
August 1990 weekend exercise that he was told
tion must coincide with the civilian job because
a position continued through 1991. She also
Procedure: The notification procedure (Chap-
the reservists must still be proficient in the
testified that she looked for positions in other
ter 1, Section D) is required for separations.
by Dr. Agapito Miranda, the base doctor, that he
civilian position.
units as well. There was some confusion with
Comply with paragraph 1-23 for involuntary
had tested positive for HIV and the information
the documents which were brought to court for
discharges.
would be passed on to the base commander to
take appropriate action. He also advised Doe to
7. Plaintiffs' only evidence on this matter was a
the hearing inasmuch as she brought 1991 docu-
4. The actual August 10, 1990 notification, which
see a private doctor, recommending Dr. Val-
vague hearsay statement by Márquez-Ramos
ments instead of the ones which she would have
forms part of defendant's Exhibit A. states as
iente. During the weekend exercise of Septem-
that he had been told there were vacant non-
actually used. She explained that there is very
follows in pertinent part:
deployable positions. He had no information
little change in the documents, and emphasized
SUBJECT: Update on Regulation Corrections;
ber 1990 he was told that he would be severed
ANGR 39-10 dated 15 Sep 1987.
from the National Guard. He was told that on a
as to whether they were compatible to Doe's
that she had searched for a non-deployable posi-
Sunday, and that he had thirty days from Mon-
civilian position. Major Nilda Urrutia, the Mili-
tion at the time she stated. We give complete
1. The information in ANGR 39-10, Admin-
credibility to her testimony.
istrative Separation of Airman, Paragraph 8-
day to take sick leave and then he would be
tary Personnel Management Officer testified
26, is no longer applicable and will be
discontinued from the technician program.
that she examined the Managing Unit Docu-
changed in the revision of ANGR 39-10.
ments as early as late July or early August 1990,
8. Captain Robinson testified that when a non-
to search for an available non-deployable posi-
deployable position is available the individual is
placed in the Selective Reserve.
1048
800 FEDERAL SUPPLEMENT
LO A-RIVERA V. DRUG ENFORCEMENT ADMIN.
1049
Cite as 800 F.Supp. 1049 (D.Puerto Rico
tant general of the jurisdiction con-
supports plaintiffs' own contention that he
Plaintiffs cite five cases-two prisoner
prosecution. On motion to dismiss, the
cerned;
is not disabled. Rather, it is the sui gener-
cases, an abortion law case, an education
District Court, Cerezo, J., held that: (1)
is situation of an administrative discharge
law case, and only one employment prohibi-
subject matter jurisdiction was lacking as
(6) a technician shall be notified in
based upon medical considerations which
tion case-without explaining how any of
to defendant federal agencies and employ-
writing of the termination of his em-
makes Doe unsuitable to continue in a de-
these cases apply to the facts at bar. We
ees, and (2) malicious prosecution was not
ployment as a technician and such noti-
ployable military position. Another argu-
note the case of Hampton v. Mow Sun
shown in that indictment of the present
fication shall be given at least thirty
ment similarly made by plaintiffs, is an
Wong, 426 U.S. 88, 96 S.Ct. 1895, 48
plaintiffs and finding of probable cause by
days prior to the termination date of
alleged violation of 10 U.S.C. § 1004 in that
L.Ed.2d 495 (1976), which dealt with the
United States Magistrate precluded deter-
such employment.
the Governor of Puerto Rico failed to ap-
exclusion of all persons except American
mination of lack of probable cause, and
(Emphasis ours.) As is evident from the
prove Doe's transfer. Section 1004(c) is
citizens and natives of Samoa from employ-
prior proceedings could not have been
statutory language, any property interest
ment in most positions of federal service.
referred to out of context; the relevant
deemed to have concluded in plaintiffs' fa-
in a technician position ceases with separa-
It is apparent here, however, that Doe was
section states, in pertinent part, that
vor when they entered into a plea agree-
tion from the National Guard. The termi-
restricted only from engaging in a deploya-
no
member
of
the
Air National Guard
ment requiring cooperation in prosecution
nation is mandatory. Courts have affirmed
ble position in the military service.
of the United States may be transferred
of codefendants in exchange for dismissal
that civilian technicians lose any entitle-
under this subsection without the consent
The Court is not insensitive to the ex-
of charges against themselves.
ment to their positions when their enlist-
of the governor or other appropriate au-
treme hardships faced by plaintiff resulting
ment as a military member of the National
thority of the jurisdiction concerned."
from his situation. However, given the
Motion granted.
Guard ends. See Tennessee v. Dunlap,
(Emphasis ours.) The plaintiffs, however,
medical testimony regarding the medical
426 U.S. 312, 96 S.Ct. 2099, 48 L.Ed.2d 660
have failed to present any evidence to dem-
restrictions and requirements of HIV posi-
(1976). The only procedural due process
tive patients, and the non-justiciability of
1. United States
78(1)
required is the thirty days written notice
onstrate that Doe's transfer to the Standby
questions related to military force readi-
established by statute, which in this case
Reserve was made without the appropriate
Federal Tort Claims Act (FTCA) is lim-
ness, mobilization, deployability and the
was given to Doe.9
authorization; that is, they have not shown
ited waiver of sovereign immunity that pro-
dual function of the National Guard, we
that the decision was taken by individuals
vides exclusive remedy for suits against
find that plaintiffs have failed to demon-
Retirement
without the authority to do so."
the United States or its agencies sounding
strate that defendants' application or inter-
[8,9] Although plaintiffs make no claim
in tort. 28 U.S.C.A. §§ 1346, 2671 et seq.
pretation of the PRANG regulations has
in their complaint, they argue at page 36 of
Liberty Interests
violated their constitutional rights.
2. United States
135
their memo in Support of Preliminary and
Permanent Injunction 10 that defendants'
Allegations of infringement of Doe's lib-
Accordingly, this action is DISMISSED.
Under the Federal Tort Claims Act
actions violate title 10 U.S.C. § 1214 and
erty interest are somewhat puzzling. Spe-
SO ORDERED.
(FTCA) only the United States could be
1215 which relate to the procedure for re-
cifically mentioned are his right to engage
sued eo nomine, and thus subject matter
tirement or separation for physical disabili-
in his occupation, the right to education,
jurisdiction was lacking as to federal agen-
ty. Their argument is fruitless, however,
the right to seek employment and the right
NUMBER SYSTEM
cies and employees. 28 U.S.C.A. § 2679(a,
in that these sections are inapplicable to
to contract. Plaintiffs fail to identify how
b).
plaintiff's case. Doe was not retired due to
these rights are affected, nor do we see
a physical disability. Extensive evidence
any infringement.¹²
3. United States
50.20
9. A termination letter dated October 16, 1990
Appropriate limitations period for Bi-
ther delegate to a Commander
Inasmuch
was sent to plaintiff informing him of the man-
as Doe's discharge order was issued by PRANG
Jaime LORA-RIVERA, Plaintiff,
vens-type claims against federal employees
datory separation due to his discharge from
Commander Colonel Manuel Guzman, we ques-
is one year.
PRANG. The letter states that the separation
V.
tion plaintiff's having raised this as an argu-
from his technician employment would be no
ment.
DRUG ENFORCEMENT ADMINISTRA-
earlier than November 19, 1990. (Plaintiff's Ex-
4. Malicious Prosecution 16,
38
hibit 5.)
TION DEPARTMENT OF JUSTICE,
12. Doe originally requested that his identity be
"Malicious prosecution" is groundless
Pedro Nieves, Jorge L. Arroyo United
10. Similarly, although no claim is made under
maintained confidential in order to "maintain
institution of criminal proceedings against
the Rehabilitation Act, 29 U.S.C. § 794, defen-
his seropositive status confidential, exercise his
States of America, Defendants.
the claimant, and the four elements thereof
dant William Miranda-Marin has extensively ar-
right to privacy and protect himself and his
No. Civ. 90-2307CCC.
gued its inapplicability. See Opposition to the
under Puerto Rico law are: that criminal
family from discrimination and stigmatization."
Motion for Preliminary Injunction, Motion to
Complaint, paragraph 3. If what he means is
United States District Court,
action was initiated and instigated by de-
Dismiss and Response to Order to Show Cause
that these rights are infringed because his sero-
D. Puerto Rico.
fendants; that criminal action terminated
(docket entry 7) repeated in their Motion in
positive status may result in discrimination
Compliance with Court Order of February 19,
in favor of plaintiffs; that defendants act-
against him, making it difficult to obtain other
1992 (docket entry 44).
Sept. 30, 1992.
employment, education or favorable contractual
ed with malice and without probable cause;
11. Footnote 3 at page 3 of plaintiff's Post-Trial
agreements, we can only remind Doe that it was
and that plaintiffs suffered damages.
Brief, states that "the authority to separate
his decision to publicize in a major newspaper
members from the Air National Guard rests
his identity and his seropositive status.
Action was filed under Federal Tort
See publication Words and Phrases
for other judicial constructions and
with the State Adjutant General who
fur-
Claims Act seeking damages for malicious
definitions.
FEDERAL REPORTER, 2d SERIES
HOLDINESS V. STROUD
417
116
Cite as 808 F.2d 417 (5th Cir. 1987)
tice in applying employment tax deposits.
tive taxes in the amounts indicated on the
sible person does not act willfully in paying
See Rev.Rul. 79-284, 1979-2 C.B. 83. This
check stub. This argument also is without
§ 31.6302(c)-1(a)(2)(iii). While an employer
creditors when the tax liability ac-
merit. Wood presented no evidence at trial
may act willfully by not making deposits
circuit has approved the application of cor-
during the quarter, Brown, 591 F.2d at
crued prior to the person's becoming a re-
porate funds to FICA employers' tax liabili-
showing that the supposed direction on the
sponsible person. Id. at 259-60, 98 S.Ct. at
ties before applying the funds to withhold-
check stub ever reached the IRS. Indeed,
1141, it is specious to syllogize that making
deposits negates willfulness. The court in
1791. Because the district court correctly
ing taxes in the absence of a direction by
his attorney agreed at trial that the check
Brown implicitly recognized this when it
found that Wood was a responsible person
both before and after the obligations at
the taxpayer. Liddon, 448 F.2d at 513.
stubs likely never left the bank. The nota-
tions on the check stubs could be construed
stated that "Treasury regulations require
But if a taxpayer directs that a payment be
withheld funds to be deposited during the
issue accrued, Slodov is not applicable.
applied in a certain manner, the IRS must
as serving Red Ant's internal record keep-
Mazo, 591 F.2d at 1154. Wood received
ing. They were too ambiguous and un-
quarter and do not merely impose a duty
abide by the taxpayer's direction.
to pay them at the end of the period." Id.
notice that employment taxes were past
Muntwyler v. United States, 703 F.2d
certain to serve as directions to the IRS.
(emphasis added). Wood's reasoning ig-
due by a letter from the IRS dated Septem-
The district court's finding that Wood made
1030, 1032 (7th Cir.1983).
nores the duty to pay at the end of the
17, 1979. He concedes that after that
no specific designation is not clearly erro-
quarter.
date he signed checks paying to creditors
[10] Wood's first two theories are at-
neous. Thus, the court correctly held that
more 1
the amount of unpaid withhold-
tempts to show that he directed the IRS to
IRS could apply the deposits to the employ-
[12] Because Red Ant did not pay the
Thus, he acted willfully as to all
apply the deposits in a certain way. First,
ers' FICA taxes before applying them to
balance of employment taxes due at the
ing ta
taxes unpaid before he received notice that
Wood focuses on the heading of Form 941-
the withholding taxes. See Liddon, 448
end of the quarter, Wood did not do all the
501, which must accompany every employ-
F.2d at 513.
law required of him. His disregard for the
second quarter employment taxes were
ment tax deposit. 26 C.F.R. § 31.6302(c)-
obvious risk that the IRS would apply the
due.
Wood's third theory is that he did not act
For dates after he received notice of
1(a)(2)(ii) (1986). The card reads: "Federal
deposits to the FICA employers' tax rather
willfully as to those deposits made by Red
unpaid employment taxes Wood does not
Tax Deposit of Withheld Income and FICA
than the withholding taxes is sufficient to
"
Ant. He argues that because the deposit
dispute that he is liable for the amount of
Tax
Quarter
Wood
establish willfulness for the amounts de-
Ending
ar-
for
system established by the IRS must be
gues that the adjective "withheld" modifies
posited by Red Ant. For the same reason,
any withholding tax deposits that Red Ant
used to pay employment taxes, see Cindy's,
Wood did not demonstrate reasonable
failed to make. He contends, however,
both income and FICA. Thus, he contends,
Inc. v. United States, 740 F.2d 851, 852
cause for his failure to pay. See Newsome
that he is not liable for the amounts of
the heading on the card directs the IRS to
(11th Cir.1984), and because IRS regula-
v. United States, 431 F.2d 742, 746-48 (5th
deposits that Red Ant did make. He relies
apply the deposit solely to the withholding
tions provide that amounts deposited "shall
Cir.1970).
on three theories. First, Wood argues that
taxes and not to the employers' FICA tax
be considered as payment of the tax," 26
liability. This argument is not persuasive.
The district court's finding of willfulness
the IRS ignored express directions on the
C.F.R. § 1.6302-1(b) (1986), he did exactly
The employers' FICA tax is also a FICA
was not clearly erroneous. Wood was
IRS form accompanying the deposits when
what the law required and did not willfully
it applied the deposits to Red Ant's FICA
tax. Anderson v. United States, 497
fail to make those deposits. He finds fur-
properly held liable for all the withholding
employers' tax obligations (for which Wood
F.Supp. 563, 565 (E.D.Wisc.1980). Indeed,
taxes due. The judgment appealed from is
ther support in Brown, in which the court
the employers' FICA and the employees'
AFFIRMED.
would not be liable) before applying the
held that a responsible person acted willful-
deposits to Red Ant's withholding tax obli-
FICA taxes are grouped under one heading
ly by failing to make the withholding de-
gations (for which Wood could be liable).
on the employment tax return (Form 941)
posits. 591 F.2d at 1141. Wood reasons
KEY NUMBER SYSTEM
Second, Wood claims that the IRS ignored
that Red Ant filled out. "Withheld" modi-
that if failure to make required deposits
directions on the check stubs accompanying
fies only income; therefore the card did not
constitutes willfulness, then making the de-
direct the IRS to apply the deposit solely to
posits should demonstrate a lack of willful-
the checks when it applied the deposits.
withholding taxes. Moreover, since the
ness.
Third, Wood maintains that because Red
Ant did make several of the quarter-month-
IRS chose the wording of the heading of
Wood places a hypertechnical construc-
Michael G. HOLDINESS,
ly deposits he could not have willfully
the card and Wood had no choice but to use
tion on part of the duties imposed on em-
Plaintiff-Appellant,
to make those deposits.
the form, we decline to construe the head-
ployers by IRS regulations. Employers do
V.
fa
ing to be a direction by Wood as to how the
have a duty to make deposits during a
A.M. STROUD, Jr., et al.,
[9] It is well established that in the
funds should be applied.
quarter, and when they make those depos-
Defendants-Appellees.
absence of a direction by the taxpayer the
[11] Second, Wood argues that the no-
its they must use the depository system.
IRS can apply a payment to any outstand-
No. 86-4128
ing tax liability of the taxpayer. National
tations on Red Ant check stubs accompany-
But that duty is not the employer's sole
Summary Calendar.
Bank of the Commonwealth v. Mechanics'
ing the checks served as a direction to the
duty. The employer also has a duty to pay
National Bank, 94 U.S. 437, 439, 4 Otto
IRS. Those notations could be read to
the remaining taxes due by the last day of
United States Court of Appeals,
reflect the company's FICA employers' tax,
the month following the end of the quarter.
Fifth Circuit.
437, 439, 24 L.Ed. 176 (1877); Liddon v.
FICA employees' tax, and withheld income
26 C.F.R. § 31.6302(c)-1(a)(1)(iv) (1986). In-
Jan. 23, 1987.
United States, 448 F.2d 509, 513 (5th Cir.
1971), cert. denied, 406 U.S. 918, 92 S.Ct.
tax for the period covered by the check.
deed, the amounts deposited throughout
1769, 32 L.Ed.2d 117 (1972). The IRS has
Wood contends that the IRS should have
the quarter are not considered paid until
applied the deposits to each of the respec-
the date the remaining balance is due. Id.
Former member of national guard
sought to obtain damages from a number
announced its intention to follow this prac-
418
808 FEDERAL REPORTER, 2d SERIES
HOLDINESS V. STROUD
419
Cite as 808 F.2d 417 (5th Clr. 1987)
of his superior officers for alleged violation
4. Civil Rights >13.3(1)
not state a cause of action under § 1985.
of his federal constitutional and statutory
Section 1983 protects only against a
42 U.S.C.A. §§ 1985, 1985(1-3).
constitutional and statutory rights when he
was barred from reenlisting, being thus
rights when he was barred from reenlisting
deprivation of rights secured by the Consti-
10. United States -135
involuntarily discharged from the Guard
and terminated from his employment as
tution and laws of the United States. 42
The only proper defendant in a suit
and from his employment as a civilian tech-
civil technician. The United States District
U.S.C.A. § 1983.
under the Federal Tort Claims Act was
nician. Although his complaint invoked nu-
Court for the Western District of Louisi-
ana, Donald E. Walter, J., dismissed suit
5. Civil Rights =13.3(2)
United States, so that Federal Torts Act
merous bases for jurisdiction and asserted
and former guard member appealed. The
State action in causing denial of reen-
claims against national guard personnel by
a number of separate claims, the district
listment to a national guard member and
national guard member were properly dis-
judge dismissed his suit for failure to state
Court of Appeals, Alvin B. Rubin, Circuit
the consequent termination of his employ-
missed. 28 U.S.C.A. § 2671.
a claim for which relief can be granted in
Judge, held that: (1) national guard mem-
any respect. We affirm the judgment of
ber did not have cause of action under
ment as a civil technician does not neces-
11. United States 50.10(5)
the district court but modify it to make
§ 1983 for alleged deprivation of his consti-
sarily constitute the deprivation of a consti-
National guard member, barred from
clear that the dismissal is without prejudice
tutional rights by personnel of national
tutionally protected liberty or property in-
reenlisting in guard and terminated from
to the plaintiff's right to seek judicial re-
guard; (2) national guard member's com-
terest under § 1983, for the constitutional
employment as civil technician, who had
view of any action taken by the Army
plaint failed to sufficiently allege conspir-
guarantee does not protect against every
resort to intramilitary administrative proce-
Board for the Correction of Military
acy to interfere with his personal civil
injury. 42 U.S.C.A. § 1983.
dures to address his complaints, was pre-
Records.
rights under § 1985; and (3) national guard
cluded from maintaining Bivens damage
member who had right to intramilitary ad-
6. Civil Rights -13.3(2)
suit against military guard personnel for
I. Facts As Set Forth by the Complaint
ministrative procedures could not bring Bi-
National guard member did not have a
alleged violations of his constitutional and
vens cause of action against his superior
property or liberty interest protected by
Because the suit was dismissed for fail-
statutory rights.
the due process clause in continued military
ure of the complaint to state a claim for
officers.
service in the national guard, nor did he
12. Militia -10, 12
which relief can be granted, we recite the
As modified, affirmed.
have constitutionally protected right to re-
Absent express congressional provi-
facts as alleged. Michael G. Holdiness was
enlist, and in view of Congress' mandate
sions for judicial intervention, national
a military member of the Louisiana Army
1. Civil Rights -13.5(3)
that a technician be discharged if his mili-
guard member's state law tort claims
National Guard, Company D, 528 Engineer-
A charge that adjutant general of a
tary enlistment expired, national guard
against national guard personnel, arising
ing Battalion in Monroe, Louisiana, for ap-
state deprived a member of the national
member, barred from reenlisting, failed to
from refusal to allow guard member to
proximately fourteen years before his in-
guard of his constitutional or federal statu-
state § 1983 claim regarding action barring
reenlist and termination of his employment
voluntary discharge on February 27, 1983.
tory rights satisfies state action require-
his reenlistment and his termination as ci-
as civil technician, were barred.
He had been employed as a civilian techni-
t of § 1983. 42 U.S.C.A. § 1983.
vilian technician. 42 U.S.C.A. § 1983; U.S.
cian under the National Guard Technician's
C.A. Const.Amends. 5, 14.
Act, 32 U.S.C. § 709, for eleven years.
2. Civil Rights -13.5(3)
Paul Henry Kidd, Kidd & Kidd, Monroe,
Holdiness' immediate supervisor, Charles
A charge that various members of na-
7. Federal Civil Procedure 648
La., for plaintiff-appellant.
H. Dean, who was also a civilian technician
tional guard, including captain in air na-
Plaintiffs who assert claims under
Joseph S. Cage, Jr., U.S.Atty., D.H. Per-
and the general mechanic foreman for
tional guard squadron, a personnel officer
§ 1983 and other civil rights statutes, such
kins, Jr., John R. Halliburton, Asst. U.S.
Company D, discriminatorily denied him
for national guard, commanding officer of
as § 1985, must plead operative facts upon
Attys., Shreveport, La., for all defendants-
promotions and gave him an arbitrarily low
guard member's squadron and chief of cen-
which their claim is based, and mere con-
appellees.
job evaluation report, a score of "61,"
tral base administration of guard member's
clusory allegations are insufficient. 42
Charles E. Welsh, Asst. Atty. Gen.,
which, although acceptable, made him sub-
fighter wing deprived member of guard of
U.S.C.A. §§ 1983, 1985, 1985(1-3).
Shreveport, La., for State of Louisiana.
ject to transfer to Alexandria, Louisiana,
his constitutional and federal statutory
rights, satisfied state action requirement of
Appeal from the United States District
which is more than 100 miles from his
8. Conspiracy -7.5
Court for the Western District of Louisi-
home. If Holdiness' performance had been
§ 1983. 42 U.S.C.A: § 1983.
The heart of the cause of action ac-
ana.
rated fairly, he would not have received a
3. Civil Rights -13.4(1)
corded by § 1985 is a conspiracy to inter-
score that made him susceptible to being
Section 1983 did not afford cause of
fere with a person's civil rights. U.S.
Before RUBIN, RANDALL, and
transferred. Dean's actions were motivat-
action against national guard personnel for
C.A. § 1985.
HIGGINBOTHAM, Circuit Judges.
ed by his dislike of Holdiness' father and
their service-connected actions in allegedly
his desire to see Holdiness transferred to
violating national guard member's federal
9. Conspiracy -18
ALVIN B. RUBIN, Circuit Judge:
another Guard unit.
constitutional and statutory rights when
National guard member failed to al-
A former member of the National Guard,
guard member was involuntarily dis-
lege sufficient facts from which it could be
who was also employed as a civilian techni-
Holdiness attempted to appeal his per-
inferred that national guard personnel con-
formance evaluation through administra-
charged from national guard and from his
cian for the Guard, seeks to obtain dam-
spired to interfere with guard member's
tive channels, but various other National
employment as civil technician. 42 U.S.
ages from a number of his superior offi-
Guard officials, who are also named as
C.A. § 1983:
personal civil rights, and thus complaint did
cers for alleged violation of his federal
defendants, retaliated because he had the
808 FEDERAL REPORTER, 2d SERIES
HOLDINESS V. STROUD
421
Cite
a
F.2d 417 (5th Clr. 1987)
"audacity to challenge the "Guard's' ac-
vens v. Six Unknown Named Agents of
by the Constitution, the Guard was to be
tions." Holdiness then sought assistance
Federal Bureau of Narcotics.2
as well as the requirements of § 1983.
uniformed, equipped, and trained in much
which affords relief only for state action,
from Louisiana State Senator David Ginn.
Holdiness appeals only the dismissal of
the same way as the regular army, subject
require us to focus separately on two ques-
Senator Ginn wrote the Louisiana Adjutant
those defendants who were considered fed-
to federal standards and capable of being
tions: whether the defendants' actions con-
General, A.M. Stroud, J., who is also named
eral employees by the district court, Dean,
"federalized" soldiers. Congress also au-
his immediate supervisor; Captain Phillip
thorized the allocation of federal equipment
stitute actions of the State of Louisiana, a
as a defendant, and the two United States
question distinct from whether Holdiness
Senators from Louisiana to enlist their ef-
L. Arthur, a civilian technician supervisor;
to the Guard, and provided federal compen-
as a civilian technician is a federal or state
forts on behalf of Holdiness. The various
Colonel Gerard A.M. Mumphrey, the
sation for members of the Guard, supple-
defendants became so enraged at Senator
Guard's Director of Manpower Manage-
menting any state emoluments. The
employee and whether, as a military mem-
Ginn's efforts that they undertook retali-
ment; and Major General A.M. Stroud, Jr.,
Guard is thus the successor to the State
ber of the Guard, he is in federal or state
atory measures against Holdiness, and, as
militias, but it is now a hybrid state-federal
military service.
the officer in charge of civilian technicians
a result, the officer in charge of civilian
and the man who had responded to the
organization,5 for the Governor remains in
assistants reprimanded him. A Guard
Louisiana State Senator's intercession by
charge of the National Guard in each state
[1] In NeSmith v. Fulton,⁸ we held
that the Adjutant General of a state is "at
Lieutenant, Joseph P. Roberts, who is also
writing the Governor of Louisiana. As we
except when the Guard is called into active
joined as a defendant, informed Holdiness
have noted, Holdiness has invoked a varie-
federal service. In most states the Gover-
least in part a state officer." Relying on
that-he would be barred from re-enlisting
ty of constitutional and statutory bases for
nor administers the Guard through the
Davis v. Vandiver," we said that, although
as a military member of the Guard, effec-
relief, casting a tangled net of claims. Sep-
State Adjutant General, who was required
the National Guard Technician's Act con-
tive February 27, 1983. The Director of
by the 1916 Act to report periodically to the
fers federal status on civilian technicians
arating their strands, we examine each in-
Manpower Management for the Guard,
dividually to determine whether any is
National Guard Bureau, a federal organiza-
"while granting administrative authority to
Colonel Gerard A. Mumphrey, another de-
strong enough to retain the defendants.
tion, on the Guard's reserve status.
State officials, headed in each state by the
fendant, advised Holdiness that his job as a
"The basic structure of the 1916 Act has
Adjutant General," 10 by virtue of the hy-
civilian technician would be terminated on
II. Status of the National Guard
been preserved to the present day." The
brid character of the Guard, the Adjutant
the same date because, under the National
The constitution empowers Congress "to
National Guard is today, therefore, an inte-
General is, at least for some purposes,
Guard Technician's Act, a civilian techni-
provide for organizing, arming, and disci-
gral part of this country's military struc-
simultaneously a federal agent. A charge
that the Adjutant General deprived a mem-
cian must be dismissed if he is no longer a
plining, the Militia, and for governing such
ture. It is "[a]n essential reserve compo-
ber of the Guard of his constitutional or
military member of the Guard.¹
Part of them as may be employed in the
nent of the Armed Forces of the United
Holdiness' father died after Holdiness
Service of the United States, reserving to
States, available with regular forces in
federal statutory rights, therefore, satis-
had received his poor performance rating
the States respectively, the Appointment of
time of war."?
fies the state action requirement of
§ 1983.11
and before he was dismissed.
the Officers, and the Authority of Training
the Militia according to the discipline pre-
III. § 1983
After he had been barred from reenlist-
[2] In addition to suing the Adjutant
scribed by Congress."3
Whether Holdiness has stated a claim for
ing and his civilian employment had been
General, NeSmith also sued various Guard
terminated, Holdiness filed this suit, rely-
As the Supreme Court related in Mary-
which relief might be granted under 42
members, including a captain in his Air
land v. United States:
U.S.C. § 1983 turns on whether he alleges
ing on 42 U.S.C. §§ 1983, 1985; the Federal
National Guard squadron, the Personnel
From the days of the Minutemen of Lex-
that state action has deprived him of an
Tort Claims Act, 28 U.S.C. § 2671 et seq.;
Officer for the Guard, the Commanding
ington and Concord until just before
interest that is constitutionally recognized
and Louisiana state law, Code Ann.
Officer of his squadron, and the chief of
World War I, the various militias embod-
as life, liberty, or property without due
art. 2315 (West 1979). Holdiness asserted
process of law.
central base administration of his fighter
that the defendants' unconstitutional ac-
ied the concept of a citizen army, but
wing. In NeSmith we held that the ac-
tions were the proximate cause of his fa-
lacked the equipment and training neces-
A. State Action
tions of such officers must be considered
ther's death. He sought $1,000,000 in dam-
sary for their use as an integral part of
state action for at least some purposes,
the reserve force of the United States
This circuit, like other federal circuits,
ages for loss of past and future wages,
because "in removing NeSmith from his
pain and suffering, and loss of his father's
Armed Forces.4
has several times reviewed the attempts of
civilian technician position, the defendant
The National Defense Act of 1916 mate-
Guard personnel to invoke judicial aid.
affection and companionship. In his re-
adjutant general and the other defend-
rially altered the status of the militias by
The state-national character of the Guard
sponse to the defendant's motion to dis-
ants, as his agents, acted sufficiently un-
miss, Holdiness also alleged violations of
constituting them the National Guard.
5. New Jersey Air Nat? Guard V. Federal Labor
his federal constitutional rights, citing Bi-
Relations Authority, 677 F.2d 276, 278 (3d Cir.
9. 494 F.2d 830, 832 (5th Cir.1974).
Pursuant to the power vested in Congress
1982).
1. 32 U.S.C. § 709(e)(1); Tennessee V. Dunlap,
3. U.S. Const. art. 1. § 8, cl. 15, 16.
10. NeSmith v. Fulton, 615 F.2d at 199 (quoting
6. Maryland V. United States, 381 U.S. at 47, 85
Davis v. Vandiver, 494.F.2d at 832 (emphasis in
426 U.S. 312, 313, 96 S.Ct. 2099, 2100, 48
S.Ct. at 1297.
original)).
L.Ed.2d 660 (1976).
4. 381 U.S. 41, 46, 85 S.Ct. 1293, 1296, 14 L.Ed.2d
205, vacated on other grounds, 382 U.S. 159, 86
7. Gilligan v. Morgan, 413.U.S. 1, 7, 93 S.Ct. 2440,
2. 403 U.S. 388, 91 S.Ct. 1999, 29 L.Ed.2d 619
11. Id, 615 F.2d at 200.
S.Ct. 305, 15 L.Ed.2d 227 (1965).
2444, 37 L.Ed.2d 407 (1973).
(1971).
8. 615 F.2d 196 (5th 1980).
422
808 FEDERAL REPORTER, 2d SERIES
HOLDINESS V. STROUD
establishment."
15
der color of state law for purposes of Sec-
the
"military
We
Cite as 808 F.2d 417 (5th Clr. 1987)
423
sy v. Florida Board of Regents 17 has since
wrote: 16
tion 1983." 12
established that exhaustion of administra-
This circuit applied Chappell to the due
A district court faced with a sufficient
The district court, therefore, was in error
tive remedies is not a prerequisite to a
process and equal protection claims of
allegation [of déprivation of a constitu-
§ 1983 action. In Penagaricano v. Llen-
Guard members in Crawford v. Texas
in holding that, as a matter of law, the four
tional right] must examine the substance
za,¹⁸ the First Circuit noted the difference
Army National Guard," holding that
fe
1 defendants were not amenable to
of that allegation in light of the policy
suit under § 1983 because they were feder-
between an inquiry into whether availabili-
§ 1983 does not afford a cause of action
reasons behind nonreview of military
al employees.
ty of administrative remedies affects the
against Guard personnel for their service-
matters. In making that examination,
availability of access to federal court and
connected actions. This decision is in ac-
such of the following factors as are
an inquiry into whether exhaustion of such
cord with decisions of the Third,23 Eighth,2
B. Justiciability
present must be weighed (although not
necessarily in the order listed).
remedies is generally a prerequisite to
and Tenth Circuits. 25 We note that in Pen-
[3] Whether § 1983 may be invoked for
§ 1983 actions. It, however, did not re-
agaricano v. Llenzo, the First Circuit
alleged injuries suffered by military per-
1. The nature and strength of the
plaintiff's challenge to the military deter-
solve the issue whether Patsy bars consid-
held that Chappell is not directly control-
sonnel as a result of actions taken by their
eration of the availability of administrative
ling but, when analyzed under the Mindes
military superiors, also presents a question
mination. Constitutional claims, normal-
ly more important than those having only
remedies for purposes of determining when
tests, such claims are "nonjusticiable." In
of the proper scope of judicial inquiry. Be-
a court should inquire into military matters
Mollnow v. Carlton, the Ninth Circuit,
cause Guard members serve in a branch of
a statutory or regulatory base, are them-
because it found that the plaintiffs had not
applying the rationale of Chappell, held
the federal military service, cases consider-
selves unequal in the whole scale of val-
ues-compare haircut regulation ques-
been denied a constitutionally protected in-
that § 1985 does not afford military subor-
ing persons in the regular military services
terest. The Ninth Circuit has followed the
dinates a remedy against military superi-
tions to those arising in court-martial
ors.
are relevant to this inquiry. In Mindes v.
situations which raise issues of personal
Mindes test without distinguishing be-
Seaman," decided in 1971, we held that
the federal courts have jurisdiction to con-
liberty. An obviously tenuous claim of
tween different aspects of the exhaustion
Accordingly, we follow Crawford in ap-
any sort must be weighted in favor of
question 19 and left redress in the hands of
plying the Chappell rule to Guard mem-
sider a complaint seeking declaratory and
the military service: Like Mindes, Holdi-
bers and, using the tests in Chappell and
injunctive relief by an Air Force officer
declining review.
ness has access to administrative remedies.
Mindes, hold that the remedy sought by
who sought to avoid an adverse Officer
2. The potential injury to the plaintiff
Holdiness would be so disruptive to mili-
if review is refused.
Unlike Mindes, he has failed to resort to
Effectiveness Report after he had unsuc-
them.
tary service that the claim should not be
fully exhausted all available intraser-
3. The type and degree of anticipated
vice procedures including application to the
interference with the military function.
In 1983, more than a decade after we
entertained by the federal courts. We af-
Air Force Board for Correction of Military
decided Mindes, the Supreme Court first
firm the district court ruling that the com-
Interference per se is insufficient since
there will be some interference when re-
considered whether a federal judicial forum
plaint does not state a claim for which
Records. In the interests of good "judicial
relief can be granted under § 1983.
husbandry," we then reviewed his charges
view is granted, but if the interference
was available to adjudicate claims arising
in the complaint and set forth, for the
would be such as to seriously impede the
from intraservice injuries in the regular
proceedings on remand, "a somewhat de-
military service. In Chappell v. Wallace,
C. Liberty or Property
military in the performance of vital
tailed analysis of when internal miliary af-
duties, it militates strongly against re-
the Court held that enlisted military per-
[4, 5] For completeness we note another
fairs should be subjected to court relief." 14
lief.
sonnel may not pursue Bivens-type suits to
deficency in the complaint. Section 1983
4. The extent to which the exercise of
recover damages for the violations of their
protects only against a deprivation of
Mindes had alleged, inter alia, that the
military expertise or discretion is in-
constitutional right to equal protection of
rights secured by the Constitution and laws
proceedings against him violated due pro-
volved. Courts should defer to the supe-
the law as a result of discrimination
of the United States. State action in caus-
but we did not further evaluate these
rior knowledge and experience of profes-
against them because of their race.21
ing the denial of reenlistment to a Guard
charges and expressed no opinion about
sionals in matters such as promotions or
member and the consequent termination of
whether his specific claims would, if
orders directly related to specific military
17. (1982). 457 U.S. 496, 102 S.Ct. 2557, 73 L.Ed.2d 172
23. Jorden V. National Guard Bureau, 799 F.2d
proved, constitute a denial of a constitu-
99, 108 (3d Cir.1986).
functions.
tional right, saying only that his "allega-
18. 747 F.2d 55 (1st Cir.1984).
in toto, are sufficient to withstand a
The Mindes opinion considered the avail-
ti
24. Brown v. United States, 739 F.2d 362, 366-67
motion to dismiss at the pleading stage."
ability of administrative remedies relevant
19. Mollnow V. Carlton, 716 F.2d 627, 629-30 (9th
(8th Cir.1984), cert. denied, - U.S. -, 105
We did, however, set forth factors for the
in determining whether federal judicial por-
Cir.1983), cert. denied, 465 U.S. 1100, 104 S.Ct.
S.Ct. 3524, 87 L.Ed.2d 650 (1985).
tals were open to such suits, although, of
1595, 80 L.Ed.2d 126 (1984).
district court to consider in deciding when
federal court should review a decision by
course, the Supreme Court's ruling in Pat-
25. Martelon v. Temple, 747 F.2d 1348, 1350-51
20. (1983). 462 U.S.-296, 103 S.Ct. 2362, 76 L.Ed.2d 586
(10th Cir.1984), cert. denied, 471 U.S. 1135, 105
12. Id. (citations omitted) (emphasis added).
15. See also West v. Brown, 558 F.2d 757 (5th
S.Ct. 2675, 86 L.Ed.2d 694 (1985).
1977). cert. denied, 435 U.S. 926, 98 S.Ct.
21. See Bivens v. Six Unknown Named Agents of
13. 453 F.2d 197 (5th 1971).
1493, 55 L.Ed.2d 520 (1978).
the Federal Bureau of Narcotics, 403 U.S. 388, 91
26. 747 F.2d 55, 59-61 (1st 1984).
S.Ct. 1999, 29 L.Ed.2d 619 (1971).
16. Mindes, 453 F.2d at 201.
27. 716 F.2d 627, 629-30 (9th Cir.1983), cert. de-
14. Id., 453 F.2d at 199.
22. 794 F.2d 1034 (5th 1986).
nied, 465 U.S. 1100, 104 S.Ct. 1595, 80 L.Ed.2d
126 (1984).
808 FEDERAL REPORTER, 2d SERIES
HOLDINESS V. ST OUD
424
Cite as 808 F.2d 417 (5th Clr. 1987)
425
Holdiness has also failed to state a § 1983
fere
with
a
his employment as a civilian technician
person's
civil
rights.36
The
does not necessarily constitute the depriva-
essence of a conspiracy is an under-
is the United States. The Federal Torts
claim regarding his termination as a civil-
tion of a constitutionally protected liberty
ian technician.
standing or agreement between the con-
Act claim against the individual defendants
spirators. Holdiness does not allege that
was, therefore, properly dismissed.
or property interest, for the constitutional
guarantee does not protect against every
IV. Section 1985
the defendants conspired to commit any of
the alleged wrongful acts nor does he al-
VI. Bivens v. Six Unknown
injury.28
42 U.S.C. § 1985 accords a cause of ac-
lege any facts from which such a conspir-
Named Agents
In Walker v. Alexander," we considered
tion to any person injured as a result of a
acy might be inferred."
whether a Guard officer, who was also
conspiracy to interfere with the civil rights
[11] The Supreme Court in Bivens v.
employed as a civilian technician, possessed
described in the Act: Subsection 1 relates
[9] Considering each subsection of
Six Unknown Named Agents ⁴² found
a c citutionally protected property right
to a conspiracy to prevent a public official
§ 1985 separately, we note that, apart from
sanction for a damage suit against federal
to be retained in active military service in
from performing his duty; Subsection 2
failure to charge a conspiracy, the com-
officials whose actions violate an individu-
the Guard, a status on which his civilian
relates to a conspiracy to obstruct justice
plaint does not allege facts sufficient to
employment was contingent. Without ap-
charge a violation of subsection 1, an effort
al's constitutional rights even though Con-
or to intimidate a party, a witness, or a
gress had not expressly authorized such
plying the Mindes tests, we held that the
juror; and Subsection 3 concerns the acts
to prevent a public official from perform-
Guard member's asserted interest was not
ing his official duties. It alleges only that
suits. The Court has, however, consistent-
of two or more persons in conspiring to, or
a property right in the constitutional sense
the defendants acted to deprive Holdiness
ly cautioned that this implied remedy is not
in going in disguise to, deprive any person
and that his civilian-technician status did
of his constitutional rights. Holdiness'
available in the presence of "special factors
of certain rights. Both subsections clause
complaint is also insufficient to state a
counselling hesitation.' 43 In Chappell,44
not "change the quality of the right or the
2 of subsection 2 and 3 relate only to
actions motivated by racial or some other
claim under subsections 2 and 3 for it alleg-
the Court found that "the need for special
ex
ancy of the officer to continue in his
position for purposes of demonstrating the
es neither a conspiracy nor class-based ani-
regulations in relation to military discipline,
type of invidious, class-based discrimina-
existence of a property right." 30
mus. It alleges only that the defendants'
and the consequent need and justification
tion.33
actions were motivated by Dean's dislike of
of a special and exclusive system of mili-
[6] Holdiness did not lose his position
[7] Plaintiffs who assert claims under
his father and their desire to punish an
tary justice" mitigated against permitting
as a technician until his enlistment as a
insubordinate employee.
enlisted military personnel to maintain a
military member of the Guard expired. He
42 U.S.C. § 1983 and other civil rights stat-
damage suit against a superior officer for
did not have a property or liberty interest
utes, such as § 1985, must plead the opera-
The § 1985 claim was therefore properly
protected by the due process clause in con-
tive facts upon which their claim is based.
dismissed.
alleged violation of their constitutional
military service in the National
Mere conclusory allegations are insuffi-
rights in failing to assure them desirable
tin
Guard," nor did-he have a constitutionally
cient.34 Equal specificity is required when
V. Federal Torts Claims Act
duties, threatening them, giving them low
protected right to re-enlist.¹ Thus, he has
a charge of conspiracy is made.85
[10] The Federal Torts Claims Act was
performance evaluations, and denying
failed to allege injury to a constitutionally.
amended in 1981 to extend protection to
them equal protection of the laws by impos-
protected liberty or property interest when
[8] Holdiness' complaint fails to satisfy
"members of the National Guard while en-
ing unusually severe penalties on them be-
his status as a military member of the
this pleading requirement sufficiently to
gaged in training or duty under section
cause of their race.
Guard was terminated. Because Congress
assert a claim under any of the subsections
316, 502, 503, 504, or 505 of Title 32." 39
The Eleventh Circuit in Stanley v. Unit-
has mandated that a technician be dis-
of § 1985. The heart of the cause of action
This provision makes the government liable
ed States, did not read Chappell as estab-
charged if his military enlistment expires,
accorded by § 1985 is a conspiracy to inter-
for the conduct of civilian technicians em-
ployed by the Guard.4 The only proper
lishing a per se rule prohibiting suits by
28. Baker v. McCollan, 443 U.S. 137, 99 S.Ct.
47 (5th Cir.), cert. denied, 454 U.S.1110, 102 S.Ct.
defendant in a suit under the Act, however,
military personnel against their superiors
2689, 61 L.Ed.2d 433 (1979); Paul V. Davis, 424
687, 70 L.Ed.2d 651 (1981); Rayborn V. Miss.
to recover damages for constitutional viola-
U.S. 693, 96 S.Ct. 1155, 47 L.Ed.2d 405 (1976);
State Bd. of Dental Examiners, 776 F.2d 530, 532
36. Kush, 460 U.S. 719, 103 S.Ct. 1483, 75
Board of Regents V. Roth, 408 U.S. 564, 92 S.Ct.
(5th Cir.1985).
L.Ed.2d 413.
1451, 1452 n. 1 (9th r.1983); Anderson V. Bai-
2701, 33 L.Ed.2d 548 (1972).
lar, 459 F.Supp. 792, 793 (M.D.Fla.1978); aff'd,
34. See, e.g., Jewell v. City of Covington, 425 F.2d
29. 569 F.2d 291 (5th Cir.1978).
459 (5th Cir.), cert. denied, 400 U.S. 929, 91 S.Ct.
37. See Zernial V. United States, 714 F.2d 431,
619 F.2d 81 (5th Cir.), cert. denied, 449 U.S. 956,
434-35 (5th Cir.1983).
101 S.Ct. 364, 66 L.Ed.2d 221 (1980).
195, 27 L.Ed.2d 189 (1970); Hobson v. Wilson,
30. Id, 569 F.2d at 293.
737 F.2d 1, 30 (D.C.Cir.1984); Ostrer v. Avon.
38. See Lowe v. Letsinger, 772 F.2d 308, 311 (7th
42. 403 U.S. 388, 91 S.Ct. 1999, 29 L.Ed.2d 619
31. Walker V. Alexander, 569 F.2d at 294.
wald, F.2d 551, 553 (2d Cir.1977); Hoffman
Cir:1985).
(1971).
V. Halden, 268 F.2d 280, 295-96 (9th Cir.1959).
32. Gant V. Binder, 596 F.Supp. 757, 766-67
39. 28 U.S.C. § 2671; see also Rhodes v. United
43. Id., 403 U.S. at 396, 91 S.Ct. at 2005. See also
(D.Neb.1984), aff'd, 766 F.2d 358 (8th Cir.1985);
see also West V. Brown, 558 F.2d 757, 760 (5th
35. Yglesias v. Gulf Stream Park Racing Ass'n,
States, 760 F.2d 1180, 1183 (11th 1985).
Carlson v. Green, 446 U.S. 14, 18, 100 S.Ct. 1468,
Cir.1977), cert. denied, 435 U.S. 926, 98 S.Ct.
201 F.2d 817, 818 (5th Cir.), cert. denied, 345
1471, 64 L.Ed.2d 15 (1980); Chappell v. Wallace,
U.S. 993, 73 S.Ct. 1132, 97 L.Ed. 1400 (1953);
40. See Proprietors Ins. Co. V. United States, 688
462 U.S. 296, 298, 103 S.Ct. 2362, 2365, 76
1493, 55 L.Ed.2d 520 (1978).
Powell v. Workmen's Compensation Bd. of State
F.2d 687, 688-89 (9th Cir.1982).
L.Ed.2d 586 (1983).
33. Kush V. Rutledge, 460 U.S. 719, 725-26, 103
of New York, 327 F.2d 131, 137 (2d Cir.1964);
S.Ct. 1483, 1487-88, 75 L.Ed.2d 413 (1983);
41. Mars V. Hanberry, 752 F.2d 254, 255-56 (6th
44. Supra.
Hoffman v. Halden, supra.
Kimble v. D.J. McDuffy. Inc., 648.F.2d 340, 344-
Cir.1985); Woods V. United States, 720 F.2d
45. 786 F.2d 1490 (11th Cir. 1986).
126
FEDERAL Il PORTER, 2d SERIES
DIAZ V. ROBERT RUIZ, INC.
427
Cite as 808 F.2d 427 (5th Clr. 1987)
The opinion in Chappell apparently
VII. State Law Claims
The judgment of the district court is
Texas law, plaintiffs were not entitled to
/OWS such an intention for it states:
[12] Judicial review of a claim for dam-
therefore amended to recognize that dis-
This Court has never held, nor do we
award of attorneys' fees as prevailing par-
ages asserted on the basis of state law
missal of the suit is to be without prejudice
ties on their Farm Labor Contractor Regis-
now hold, that military personnel are
would constitute no less an unwarranted
to Holdiness' right to seek judicial review
tration Act claim, and (2) plaintiffs were
barred from all redress in civilian courts
intrusion into the military personnel struc-
by the Army Board for the Correction of
entitled to recover attorneys' fees on their
for constitutional wrongs suffered in the
ture than the entertainment of claims
Military Records, and, as thus modified, is
Fair Labor Standards Act claim.
course of military service.⁴⁶
founded in § 1985, § 1983, and Bivens.
affirmed.
Absent express Congressional provision for
Reversed and remanded.
such judicial intervention, the rationale of
Civilian courts must at the very least
Chappell and Crawford bars Holdiness'
hesitate long before entertaining a suit
state law tort claims.⁵¹ These would, of
KEY NUMBER SYSTEM
1. Federal Civil Procedure -2737.11
which asks the court to tamper with the
course, fail in any event upon dismissal of
established relationship between enlisted
Under Texas law, migrant and season-
the federal claims to which they are pen-
military personnel and their superior offi-
al farm workers were not entitled to award
dent.
cers [because] that relationship is at the
of attorneys' fees as prevailing parties on
VIII. Administrative Remedy
it of the necessarily unique structure
their Farm Labor Contractor Registration
of the military establishment.⁴⁷
As we have previously noted, Holdiness
Act claim, where plaintiffs did not indepen-
is not left without any remedy if his rights
The majority of courts to consider the ques-
Gumecinda, Ortencia, Jaime, Javier, Ofe-
dently prevail on their contract claim, but
indeed have been violated. Unlike the
tion, however, have reached the opposite
lia and Gerardo DIAZ; Irma and Felipe
rather settled claim prior to trial; FLCRA
plaintiff in Mindes,5 he has not availed
Diaz; Paula and Illana Espericueta:
did not create implied basis for award of
conclusion.
himself of his right to review from the
Juanita and Jesus P. Martinez and Sara
attorneys' fees under Texas law. V.T.C.A.,
It is unnecessary for the purpose of de-
Army Board for the Correction of Military
Martinez, Plaintiffs-Appellants Cross-
Civil Practice & Remedies Code § 38.001;
ciding this case for us to express any opin-
Records. The Board, established by Con-
Appellees,
Vernon's Ann.Texas Civ.St. art. 2226 (Re-
ion concerning the Stanley interpretation.
gress pursuant to 10 U.S.C. § 1552, has the
pealed).
Like Chappell's contentions, Holdiness'
authority to correct any error or injustice
V.
claims present a situation in which military
in a military record. It has power to award
ROBERT RUIZ, INC.,
2. Labor Relations 1569
decision making "would be undermined by
backpay and other lost benefits although,
Defendant-Appellee
Migrant and seasonal farm workers, as
a judicially created remedy exposing offi-
as a matter of comity and in recognition of
Cross-Appellant,
prevailing parties on Fair Labor Standards
cers to personal liability at the hands of
the states' role in the Guard,54 it will not
and
Act claim, were entitled to recover attor-
those they are charged to command." 49
compel reinstatement. Moreover, the
neys' fees, including recovery for time
Moreover, like the plaintiffs in Chappell,
Board's decisions are subject to review and
Jose Caamel, Roberto Gomez and Roy
spent on non-FLSA issues to extent that
and unlike those in Stanley, Holdiness may
may be set aside if they are arbitrary and
Herber, Defendants-Appellees.
those issues interrelated and overlapped
rt to intramilitary administrative proce-
capricious or are not supported by substan-
No. 85-2740.
with FLSA ones. Fair Labor Standards
dures to redress his complaints.
tial evidence. This remedy was found
sufficient in Chappell, for it is the reme-
United States Court of Appeals,
Act of 1938, § 16(b), 29 U.S.C.A. § 216(b).
The district court therefore properly dis-
Fifth Circuit.
missed Holdiness' Bivens claims.
dy Congress has chosen to provide.⁵
Jan. 27, 1987.
46. Chappell, 462 U.S. at 304, 103 S.Ct. at 2368,,
51. See Trerice v. Pedersen, 769 F.2d 1398, 1403-
Debra A. Smith, Texas Rural Legal Aid,
76 L.Ed.2d at 593 (citation omitted).
04 (9th Cir.1985) (and cases cited therein); Trer-
Inc., Farm Worker Div., Randall C. Mar-
ice V. Summons, 755 F.2d 1081, 1084-85 (4th
47. Chappell, 462 U.S. at 300, 103 S.Ct. at 2366,
shall, Hereford, Tex., David G. Hall, Texas
Cir.1985).
Migrant and seasonal farm workers
76 L.Ed.2d at 591.
brought action under Fair Labor Standards
Rural Legal Aid, Inc., Weslaco, Tex., for
48. See Jorden V. National Guard Bureau, 799
52. Mindes v. Seaman, supra.
Act, Farm Labor Contractor Registration
plaintiffs-appellants cross-appellees.
F.2d 99 (3d Cir.1986); Trerice V. Summons, 755
53. See Navas V. Gonzalez Vales, 752 F.2d 765,
F.2d 1081 (4th Cir.1985); Martelon V. Temple,
Act, and state contract law against packing
Alejandro Moreno, Jr., Ricardo Flores,
747 F.2d 1348 (10th Cir.1984), cert. denied, 471
770 (1st Cir.1985).
shed and various individuals. Following
Pharr, Tex., for defendant-appellee cross-
U.S. 1135, 105 S.Ct. 2675, 86 L.Ed.2d 694 (1985);
Mollnow v. Carlton, 716 F.2d 627 (9th Cir.1983),
54. Jorden, 799 F.2d at 102 n. 5.
settlement on all claims except claim for
appellant.
attorneys' fees, the United States District
cert. denied, 465 U.S. 1100, 104 S.Ct. 1595, 80
L.Ed.2d 126 (1984).
55. Geyen V. Marsh, 775 F.2d 1303, 1306 (5th
Court for the Southern District of Texas,
Appeals from the United States District
Cir.1985).
Hayden W. Head, Jr., J., awarded plaintiffs
Court for the Southern District-of Texas.
49. Chappell, 462 U.S. at 304, 103 S.Ct. at 2367,
76 L.E.2d at 593.
56. 462 U.S. at 302-03, 103 S.Ct. at 2367; see also
$24,418 in attorneys' fees, and both sides
Crawford, 794 F.2d at 1036.
appealed. The Court of Appeals, Edith H.
50. See Carlson v. Green, 446 U.S. 14, 18-19, 100
Before DAVIS, GARZA, and JONES,
S.Ct. 1468, 1471-72, 64 L.Ed.2d 15 (1980).
57. See also Crawford, 794 F.2d at 1036.
Jones, Circuit Judge, held that: (1) under
Circuit Judges.