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June 5, 1985

CARLENE MACK, Individually and on behalf of all other persons similarly situated, PATRICIA RAMSURE, QUEEN ESTHER TAYLOR, THELMA BARNES, MAXINE McNEILL, TRINIA LEWIS, Plaintiffs,
DONALD RUMSFELD, Individually and in his official capacity as Secretary of Defense, MARTIN R. HOFFMANN, Individually and in his official capacity as Secretary of the United States Army, Defendants.

The opinion of the court was delivered by: CURTIN

Plaintiffs challenge the policy of the Army, Army Reserve, Air Force, and Air Force Reserve which prohibits the enlistment, with rare exceptions, of single parents with children under 18 years old. They contend that it violates their rights under the fifth amendment. This case was certified as a class action on June 20, 1977. The named plaintiffs represent the class of

women applicants who have been or are being denied admittance into the Army or Air Force because of Army or Air Force policies that deny admittance to a single parent with a child under 18 years of age.

 Defendants originally moved for summary judgment in June of 1976. This court denied that motion on February 10, 1978 with leave to renew after additional discovery had taken place. Defendants renewed their motion in June of 1983. Plaintiffs have filed a cross motion for summary judgment.

 Plaintiffs attack the constitutionality of the regulations expressing the single parent exclusion policy (see Appendix). Plaintiffs list three counts in their complaint. Plaintiffs' first count charges that the Army and Air Force unjustifiably discriminate against unmarried parents of children under the age of 18. As their second count, plaintiffs allege that defendants' policies penalize plaintiffs for exercising their freedom of choice as to family life and that those policies erect an irrebutable presumption as to the fitness of single parents for military service. Plaintiffs claim that these policies discriminate against women as their third count. (See Amended and Supplemental Complaint, March 22, 1977).

 Both plaintiffs and defendants have filed extensive exhibits with the court in support of their motions for summary judgment and in opposition to the motions against them. Plaintiffs have submitted, among other things, depositions of their experts, portions of military studies and records, and affidavits from named plaintiffs and others.

 Defendants have offered policy statements, military studies, depositions of military personnel and copies of the regulations at issue as they have been amended over the years.

 For the reasons that follow, summary judgment is granted to defendants and the complaint is dismissed.

 Preliminarily, defendants argue that this case is nonjusticiable and/or non-reviewable. It appears to the court that these terms are used interchangeably in this context. Defendants also raised this point in their original motion for summary judgment, and the court held that the case was justiciable in its order of February 10, 1978. At that time, the court relied upon Crawford v. Cushman, 531 F.2d 1114, 1121 (2d Cir. 1976), in which it was held that substantive claims of constitutional dimension against the military are reviewable by the courts. Plaintiffs in this case have raised substantive claims of violations of equal protection and due process as guaranteed by the fifth amendment to the United States Constitution.

 Defendants point out that, since the time of this court's 1978 order, several courts of appeals have adopted the approach established by the Fifth Circuit in Mindes v. Seaman, 453 F.2d 197 (5th Cir. 1971), in testing the reviewability of military decisions. Under this test, a court should examine four factors: 1) The strength of the plaintiff's claim; 2) potential harm to plaintiff if review is denied; 3) type and degree of anticipated interference with the military; and 4) the extent to which military expertise is involved. Using this test, two courts of appeals have found the same policies at issue in this case not proper for review. See West v. Brown, 558 F.2d 757 (5th Cir. 1977), cert. denied, 435 U.S. 126, 98 S. Ct. 965, 55 L. Ed. 2d 148, and Lindenau v. Alexander, 663 F.2d 68 (10th Cir. 1981).

 The Third Circuit, however, has rejected the Mindes test and found the same policies challenged here to be reviewable. Dillard v. Brown, 652 F.2d 316 (1981).

 Once a claim falls within these parameters [a constitutional or statutory violation], a court should review the claim on the merits. Even if such a constitutional challenge appears weak or frivolous, jurisprudentially that claim should be rejected on the merits, rather than deemed to be non-justiciable by a federal court. We prefer an analysis which does not mingle concepts of justiciability with those affecting the merits of the claims to the extent that Mindes requires.

 Id. at 323.

 Crawford is still the law of this circuit (see Katcoff v. Marsh, 755 F.2d 223, 233 (2d Cir. 1985)).

 Plaintiffs have raised constitutional equal protection claims and due process claims, and under Crawford and the reasoning of Dillard, these claims are justiciable and reviewable.

 The Supreme Court's decision in Rostker v. Goldberg, 453 U.S. 57, 69 L. Ed. 2d 478, 101 S. Ct. 2646 (1981), does not remove this case from the realm of reviewability. That case emphasized the deference due Congressional decisions involving the military and national defense. The court pointed to Congress's broad constitutional power to raise and support armies, citing Art. I, § 8 of the United States Constitution. It stated that courts have an ultimate responsibility to decide constitutional questions, adding, "deference does not mean abdication." Id. at 67 and 70.

 That courts have the power and the duty to review military conduct when challenged as violative of the Bill of Rights is clear. The standard of review, however, is far from clear. The military urges that, at most, this court may simply glance at the challenged policies to determine if there is a "rational nexus" between the exclusion of single parents and military readiness. In a recent case from the Eastern District of New York involving a naval reserve policy prohibiting the commissioning of pregnant cadets, the court interpreted Rostker as requiring mere rationality to withstand a claim of gender discrimination under the fifth amendment. Cobb v. United States Merchant Marine Academy, 592 F. Supp. 640, 643-44 (E. D.N.Y. 1984).

 In Rostker, the Court apparently declined to adopt such a test:

 We do not think that the substantive guarantee of due process or certainty in the law will be advanced by any further "refinement" in the applicable tests as suggested by the Government. Announced degrees of "deference" to legislative judgments, just as levels of "scrutiny" which this Court announces that it applies to particular classifications made by a legislative body, may all too readily become facile abstractions used to justify a result. In this case the courts are called upon to decide whether Congress, acting under an explicit constitutional grant of authority, has by that action transgressed an explicit guarantee of individual rights which limits the authority so conferred. Simply labeling the legislative decision "military" on the one hand or "gender-based" on the other does not automatically guide a court to the correct constitutional result.

 Rostker at 69-70.

 The Second Circuit has provided an interpretation of the Rostker decision in a slightly different context. In Katcoff v. Marsh, 755 F.2d 223 (2d Cir. 1985), two taxpayers sought an injunction against Congress's continuation of the Army's military chaplain program, claiming that government financing of the program violated the establishment clause of the first amendment. Citing Rostker, the court said:

 The line where military control requires that enjoyment of civilian rights be regulated or restricted may sometimes be difficult to define. But caution dictates that when a matter provided for by Congress in the exercise of its war power and implemented by the Army appears reasonably relevant and necessary to furtherance of our national defense it should be treated as presumptively valid and any doubt as to its constitutionality should be resolved as a matter of judicial comity in favor of deference to the military's exercise of its discretion.

 Katcoff at 234.

 This court is well aware that the policies under attack here were not promulgated by Congressional act, but by military regulation. Yet the Supreme Court has held that military policies made under an explicit grant of Congressional authority are entitled to deference. See Cafeteria and Restaurant Workers Union v. McElroy, 367 U.S. 886, 890-91, 894, 6 L. Ed. 2d 1230, 81 S. Ct. 1743 (1961). Here, the military defendants set enlistment requirements through the authority of Congress, which gave the Secretaries of the Army and Air Force the power to promulgate enlistment standards. 10 U.S.C. §§ 505, 510(b), 3012(g), 8012(f).Goldman v. Secretary of Defense, 236 U.S. App. D.C. 248, 734 F.2d 1531, 1538 (D.C. Cir. 1984).

 In light of the above discussion of the standard of review, this case is amendable to summary judgment. Both parties have engaged in extensive discovery and neither requests additional time. In fact, both ask the court to decide the case on summary judgment, because a trial will add little, if anything, to the record.

 Plaintiffs claim the exclusionary policy violates their fundamental constitutional right to freedom of choice in family matters and creates an irrebuttable presumption as to the fitness of single parents for military service, all in violation of the due process clause of the fifth amendment. The regulations at issue here, however, do not interfere with plaintiffs' constitutional right to have, or not to have, a family. They simply prohibit plaintiffs, as single parents, from enlisting in the Army or Air Force. There is no constitutional right to join the military. Lindenau v. Alexander, 663 F.2d at 72-73, and Crawford v. Cushman, 531 F.2d at 1125.

 As their first and third counts, plaintiffs claim the single parent exclusion policies discriminate against them as single parents and as women, in violation of the equal protection clause of the fifth amendment.

 Under the Second Circuit interpretation in Katcoff, the exclusion policies shall be treated as presumptively valid and constitutional if they are reasonably relevant and necessary to further national defense.

 Defendants maintain that these policies are relevant and necessary to the critical concerns of military readiness and mobility. They offer the depositions of several military leaders as well as military studies based on the results of surveys of commanders, supervisors, and married couples with children, both of whom are in the military, or single parents.

 For instance, Major General H. Norman Schwarzkopf, Director for Military Personnel Management and Acting Assistant Deputy Chief of Staff for Personnel at the Pentagon, was deposed by defendants in November of 1982. He stated that a key concern of the military is the ability to deploy forces in the United States overseas as rapidly as possible. Single parents, according to the General, pose a threat to the Army's ability to mobilize quickly. He admitted that a detailed analysis of the numbers of single parents who might not be prepared to deploy had not been done, since it is "not a question of numbers," but of the "war-fighting capability of the Army." (Item 146, p.39)

 General Schwarzkopf served as the Assistant Division Commander of the Eighth Infantry Division and Community Commander of Mainz Military Command in Germany from 1970 to 1972. He was in charge of personnel management for 12,000 people in a U.S. Army community. He estimated that approximately 100 single parents lived in the community and said that some were deficient in performance. While he had no exact numbers, he said that the percentage of single parents who failed to report for alerts was "dramatically different" from the percentage of other soldiers. General Schwartzkopf recalled that division commanders repeatedly mentioned the availability of single parents as a matter of concern (Item 146, pp. 15-16).

 Major General Kenneth LeRoy Peek, Director of Personnel Plans for the Air Force, served as Vice Commander, then as Commander, of the Air Force Manpower and Personnel Center at Randolph Air Force Base from March or 1979 until July of 1982. In that position, he encountered a "significant amount of concern" on the part of local commanders, supervisors and first sergeants about the difficulties some single parents had in meeting duty requirements (Item 147, pp.9-11).

 Other military leaders pointed to the serious problems single parents encounter during basic and technical training. (See Deposition of Air Force Lt. General B. L. Davis, Item 49, pp.11 and 22, and Deposition of Air Force Lt. Colonel Donald Post, Item 50, pp.13-15).

 Defendants also submitted military studies which in part dealt with single parents. For example, a report by the Women in the Army Study Group was prepared in December 1976 (Defendants' Exh. K). Comments solicited from major army commands formed the basis of the study. They were requested to determine whether single parents, both male and female, had a bad effect on unit readiness.

 Some units reported no problems with single parents when there were only a few involved, but noted serious problems when significant numbers of single parents were in a unit. Specifically, single parents did not have the flexibility to work irregular hours or different work schedules. They also were said to need considerable advance warning before extended leave (Exh. K, Chap. 7, pp.8-9).

 From October 1980 through April 1981, the Air Force studied the readiness and availability of single parents (Report of the Availability of Single Member Sponsors and Military Couples with Dependents, Defendants' Exh. G).

 Military leaders, single parents, and military couples with children were interviewed in 27 Air Force bases. The focus of the survey was AF 35-39, an Air Force regulation dealing with provisions for child care. The results of the study showed that commanders strongly believed that single parents and military couples with children were not prepared to deploy on short notice. Younger, less experienced single parents and military couples with children tended to view themselves as less available and the chances of being called upon to deploy as less likely than did more experienced single parents or military couples.

 The report concluded that the current stringent waiver policies for enlistment of single parents and military couples with children should be continued. It recommended that the policy of discharging those who become single parents and are not available be enforced (Defendants' Exh. G, pp.4-5).

 Another one of the many Air Force studies, also based on surveys, found that many commanders believed that single parents lost more time than military couples with children of Air Force personnel with civilian spouses (see Study by Air Force Manpower and Personnel Center, January 1982, Defendants' Exh. H, p.24).

 Plaintiffs maintain that defendants' policies of retaining enlisted personnel who become single parents are fundamentally inconsistent with their position. They argue that if defendants were truly concerned about single parents disrupting mobilization and readiness, no amount of investment in training or gain in maturity and experience would justify retaining those who become single parents (Item 169, pp.103-04).

 What plaintiffs fail to take into account is that single parents whose performance deteriorates can be either discharged or barred from reenlistment (see Item 146, pp.39-41). Deposition of Army Major General Schwarzkopf). In fact, The U.S. General Accounting Office [GAO] Report to the Secretary of the Army dated September 13, 1982, recommended that the Army forego discharging all those who became sole and in-service parents or assigning them to positions coded as "nondeployable" until further study.

 As noted earlier, the Air Force report on the availability of single parents (Defendants' Exh. G) recommended enforcement of the policy of discharging those who are not consistently available as well as recommending maintaining stringent restrictions on the enlistment of single parents.

 Major General Schwarzkopf pointed out that those who become single parents while serving are not automatically discharged because they, unlike new enlistees, represent a valuable resource to the military due to their training and experience (Item 146, pp.39-41).

 Certainly, defendants' refusal to automatically discharge soldiers and Air Force personnel who become single parents does not indicate that barring the enlistment of single parents on the basis of a need to sustain maximum readiness and mobility is pretextual. The military has no investment in those who seek enlistment, nor any commitment to them. Those who have been in the service have training and experience and can be discharged or reassigned if their performance declines.

 Plaintiffs also urge that the repeated linkage of single parenthood with women's issues reveals that the policies were motivated in ...

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