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CARLENE MACK (01/29/86)

UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT


January 29, 1986

CARLENE MACK, INDIVIDUALLY AND ON BEHALF OF ALL OTHER PERSONS SIMILARLY SITUATED; SHIRLEY STUKES; PATRICIA RAMSURE; QUEEN ESTHER TAYLOR, THELMA BARNES; MAXINE MCNEILL; AND TRINA LEWIS, INTERVENOR, PLAINTIFFS-APPELLANTS, -V.- DONALD RUMSFELD, INDIVIDUALLY AND IN HIS OFFICIAL CAPACITY AS SECRETARY OF DEFENSE; MARTIN R. HOFFMAN, INDIVIDUALLY AND IN HIS OFFICIAL CAPACITY AS SECRETARY OF THE UNITED STATES ARMY, THOMAS C. REED, INDIVIDUALLY AND IN HIS OFFICIAL CAPACITY AS SECRETARY OF THE UNITED STATES AIR FORCE, DEFENDANTS-APPELLEES

Appeal from order of the United States District Court for the Western District of New York, Curtin, C.J., granting defendants' motion for summary judgment and dismissing plaintiffs' complaint. Previously Reported at 782 F.2d 356 and Withdrawn from the Bound Volume.

Per Curiam

Before: TIMBERS, MESKILL and PRATT, Circuit Judges.

This is an appeal from an order of the United States District Court for the Western District of New York, Curtin, C.J., granting defendants-appellees' motion for summary judgment and dismissing plaintiffs-appellants' complaint.

The seven named appellants are single mothers with custody of children under eighteen years of age. Six of them brought this class action suit in 1976 challenging the constitutionality of Army and Air Force regulations that prevented them from enlisting in the regular Army or Air Force or in the Army or Air Force Reserves. A class of female applicants denied admittance into the Army or Air Force because of these regulations was certified in June 1977.

A defense motion for summary judgment dismissing the complaint was denied in 1978 with leave to renew. The motion was renewed in June 1983 and appellants filed a cross-motion for summary judgment in February 1984. On June 5, 1985, Chief Judge Curtin granted appellees' motion, denied appellants' motion and dismissed the complaint, finding the case justiciable, but rejecting all of appellants' constitutional claims on the merits. Mack v. Rumsfeld, 609 F. Supp. 1561 (W.D.N.Y. 1985).

We affirm substantially for the reasons set forth in Chief Judge Curtin's opinion. The district court opinion states that " Crawford [v. Cushman, 531 F.2d 1114 (2d Cir. 1976)] is still the law of this circuit . . . ." 609 F. Supp. at 1563. We note that Crawford has been substantially limited by the subsequent Supreme Court opinion in Rostker v. Goldberg, 453 U.S. 57, 69 L. Ed. 2d 478, 101 S. Ct. 2646 (1981), and our interpretation of Rostker in Katcoff v. Marsh, 755 F.2d 223, 234 (2d Cir. 1985).

19860129

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