# Brief for Appellant — Schlesinger v. Ballard

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Brief for Appellant
- **Published:** January 1, 1975
- **Citation:** 419 U.S. 498

## Text

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Opinions below

Jurisdiction

Questions presented
Statutes involved
Statement
Argument

I. Statutory classification by sex is consti-
tutional if rationally related to reason-
able and legitimate government objec-
tives

Il. The differences in 10 U.S.C. 6382 and
6401 are constitutional

Conclusion
Table I

CITATIONS
Cases:

Aiello v. Hansen, 359 F. Supp. 792, prob-
able jurisdiction noted, Geduldig v.
Aiello, No. 73-640, February 17, 1973

Bertelsen v. Cooney, 213 F. 2d 275, cer-
tiorari denied, 348 U.S. 856

Brenden v. Independent School District,
477 F. 2d 1292

Eslinger v. Thomas, 476 F. 2d 225

Frontiero v. Richardson, 411 U.S. 677

Goesaert v. Cleary, 335 U.S. 464

Gruenwald v. Gardner, 390 F. 2d 591,
certiorari denied, 393 U.S. 982

20
21

Cases—Continued Page
Healy v. Edwards, 363 F. Supp. 1110,

probable jurisdiction noted, Edwards v.

Healy, No. 73-759, February 19, 1974 90
Hoyt v. Florida, 368 U.S. 57 8
Kahn v. Shevin, No. 73-78, decided April

24, 1974 7,8
Lichter v. United States, 334 U. 8. 742 9
Miskunas v. Union Carbide Corp., 399 F.

2d 847, certiorari denied, 393 U.S.

1066 9
Moritz v. C. Lk., 469 F. 2d 466, certio-

rari denied, 412 U.S. 906 9
Muller v. Oregon, 208 U.S. 412 8
Orloff v. Willoughby, 345 U.S. 83 10
Robinson v. Board of Regents, 475 F. 2d

707, certiorari denied, No. 73-221, May

13, 1974 — 9
Toth v. Quarles, 350 U.S. 11 9
Two v. United States, 471 F. 2d 287, cer-

tiorari denied, 412 U.S. 931 8
United States v. St. Clair, 291 F. Supp.

122 3 10
Wark v. . Robbins, 458 F. 2d 1295 19
West Coast Hotel Co. v. Parrish, 300

6 8
Wiesenfeld v. Secretary of Health, Edu-

cation and Welfare, 367 F. Supp. 981 9
Williams v. McNair, 401 U.S. 951, affirm-

ing 316 F. Supp. 134 Lae 8, 10

Constitution and statutes:
U. S. Constitution:
Art. I, Sec. 8, Cls. 12, 13, 14 9

Act of July 16, 1862, 12 Stat. 583

Constitution and statutes—Continued

Act of August 29, 1916, 39 Stat. 556
Act of March 3, 1931, 46 Stat. 1482
Act of May 29, 1934, 48 Stat. 814
Act of June 23, 1938, Section 12(c), 52
e
Act of Aug. 10, 1956, 70A Stat. 1, 297
Act of Nov. 8, 1967, 81 Stat. 374, et
seq., Sections 1 (14), 1(16), 1018) (C),
1(19), 1024)
Officer Personnel Act of 1947, 61 Stat.
795, et seq.:

Section 308 (a) (13), 61 Stat. 846
Section 312 (h), 61 Stat. 860

Women’s Armed Services Integration Act
of 1948, Section 207(j), 62 Stat. 368
86 Stat. 735, Section 301 21
86 Stat. 1184
10 U.S.C. 5401, et seq.
10 U.S.C. 5408-5405 ))
1 — eee
ee
111 ee
.
JI ri
J c
J EPE
10 U.S.C. K
10 U.S.C. 5596 (h) 6— a Re tet
J SE Sa
10 U.S.C. 5751(b) 11
J
D le CSS aE

14
14
14

IV *

Constitution and statutes—Continued Page Miscellaneous—Continued Page

929090 19 H. Rep. No. 640, Soth Cong., Ist Sess. 14
1 | 92d Cong Sess

H. , q ;
10 USC. HO. COB H.R. 12405, 92d Cong., 2d Sess., Sections
LI. ee PS 13
19 USG. Oe 13 8.
10 USC. %% eee is a ten Ne. 5.
10 U.S.C. 601 ũ — J, 12, 18 Seymour, Promotion of Officers in *

13 — V Naval Reserve, 1956 JAG Journal
LI. 15

1 15
10 U.S.C. 6883.8, 3, 4, 5, 11, 12,
1

5
10 U.S.C. 6882(a) 3
10 UAC. 868(b)
10 USC. Gib) ee ee
10 USC. 00 a
0 USC GiMe cu eee
10 USC. . a ee
10 USC. . ˙
10 U.S.C. 6401 J, 4, 6, 7, 11, 12,

17, 18, 19, 20
10 U.S.C. 6401 (a) — aan 8, 4, 5, 17
.
28 U.S.C. 2282 ä ˖——

Miscellaneous:

Executive Order No. 11437, 33 Fed. Reg.
8 — aan 16
Hearings before the Senate Committee on
Armed Services, on S. 1108, S. 1527,
and S. 1641, Soth Cong., Ist Sess. 3 18
H. Conf. Rep. No. 2764, 75th Cong., 3d
ae 14

In the Supreme Court of the United States

OcTOBER TERM, 1973

No. 73-776

JAMES R. SCHLESINGER, SECRETARY OF DEFENSE,
ET AL., APPELLANTS

Lr. Ropert C. BALLARD, U.S. N.

ON APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF CALIFORNIA

BRIEF FOR THE APPELLANTS

OPINIONS BELOW

The opinion of the three-judge district court (J.S.
App. B) is reported at 360 F. Supp. 643. The
memorandum opinion of the district court granting
appellee’s motion for a preliminary injunction (J.S.
App. A) is reported at 350 F. Supp. 167.

(1)

2
JURISDICTION

The judgment of the three-judge district court
(J.S. App. D), enjoining the discharge of appellee
Ballard, was entered on July 18, 1973. A notice
of appeal was filed on August 14, 1973 (J.S. App.
E). The government’s motion for a new trial, filed
July 6, 1973 (J.S. App. C), was denied on August
23, 1973 (J.S. App. F). A second notice of appeal
was filed on September 20, 1973 (J.S. App. G). The
jurisdictional statement was filed on November 13,
1973, and probable jurisdiction was noted on Feb-
ruary 19, 1974. The jurisdiction of this Court is
conferred by 28 U.S.C. 1252 and 1253.

QUESTIONS PRESENTED

1. Whether the district court erred in using the
“compelling governmental interest” test, rather than
the “rational basis” test, in reviewing the constitu-
tionality of military statutes creating differences in
personne! administration based on sex.

2. Whether the differences in the Naval attrition
statutes relating to men and women lieutenants (10
U.S.C. 6382 and 6401, respectively) are in violation
of the Constitution.

STATUTES INVOLVED

10 U.S.C. 6382 provides in relevant part:

(a) Each officer on the active list of the Navy
serving in the grade of lieutenant * * * shall be
honorably discharged on June 30 of the fiscal

— —

year in which he is considered as having failed
of selection for promotion to the grade of lieu-
tenant commander * * * for the second time.

10 U.S.C. 6401 provides in relevant part:

(a) Each woman officer on the active list of
the Navy, appointed under section 5590 of this
title, who holds a permanent appointment in the
grade of lieutenant * * * shall be honorably dis-
charged on June 30 of the fiscal year in which—

(1) she is not on a promotion list; and

(2) she has completed 13 years of active com-
missioned service * * *.

STATEMENT

The appellee, Lieutenant Robert C. Ballard,
U.S.N., having twice failed of selection for promo-
tion to lieutenant commander, was scheduled for dis-
charge from the Navy no later than June 30, 1972,
pursuant to the mandatory requirement of 10 U.S.C.
6382(a). That statute is a typical one requiring
thinning of the ranks to retain the best qualified
officers and to permit orderly promotion of lower
ranking officers. Although Lt. Ballard's performance
of his duties was satisfactory, he was considered to
be in the lower 15 to 30 percent of eligible lieutenants
by two separate selection boards, and was not recom-
mended for promotion (App. 24a). Hence, he be-
came subject to the mandatory discharge requirement
of 10 U.S.C. 6382. As an officer discharged under

See infra, pp. 12-17.

4

10 U.S.C. 6382, Lt. Ballard would be entitled to
$15,000 severance pay. 10 U.S.C. 6382(c).

On June 16, 1972, Lt. Ballard filed suit in the
district court, alleging that 10 U.S.C. 6382 was un-
constitutional in requiring his discharge after (in his
case) some nine years of commissioned service, where-
as 10 U.S.C. 6401(a) required discharge of wor en
Navy lieutenants not on a promotion list only after 13
years of commissioned service.“

A three-judge court, convened under 28 U.S.C.
2282, granted a preliminary injunction enjoining
appellee’s discharge pending a final decision’ (J.S.
App. A). Following presentation of additional affi-
davits and other documents, and a hearing, the court
concluded that the 13-year selection out provision of
10 U.S.C. 6401 favors women Navy officers and con-
stitutes an invidious discrimination against male
Navy officers mandatorily discharged under similar
conditions before completing 13 years of service (J.°.
App. B, p. 19a). The court, citing Frontiero v.
Richardson, 411 U.S. 677, held that the “compelling
governmental interest” test applied, and that the
differences between 10 U.S.C. 6382 and 6401 were
not supported by any compelling interest perceptible
to it.“ The court enjoined the government from dis-

See infra, pp. 17-19.

*A temporary restraining order had previously been en-
tered on June 20, 1972.

* The district court also found that there was no evidence
of a rational basis for the added tenure granted women
officers. J.S. App. B, p. 18a. See infra, p. 7, n. 9.

5

charging Ballard “solely because of passovers in grade
as provided for in Section 6382 prior to the expira-
tion of 13 years of commissioned service * * *” (J.S.
App. B, p. 20a, J.S. App. D, p. 28a).

After the court issued its written opinion (on June
26, 1973), and prior to the entry of its judgment
(on July 18, 1973), the government on July 6, 1973
filed a motion for a “new trial” (J.S. App. C, pp.
2la-22a), and two additional affidavits.’ This affi-
davit pointed out that, of a total of 710689 officers
on active duty in the Navy (as of November 1972),
68,456 were men and only 3,233 were women (App.
17a, 25a-26a) ; that all male Navy lieutenants in the
Regular Navy (numbering 16,585) would be guaran-
teed a 13-year tenure if the court’s order should be
followed and upheld (App. 17a); that there are
only 167 women lieutenants in the Naval service
who could be subject to 10 U.S.C. 6401(a) (App.
17a); that the 13-year selection out provision in

* Affidavit of Capt. E. R. Fink, JAGC, U.S.N. (App. 16a-
26a); Affidavit of Rear Admiral G.E.R. Kinnear, U.S.N. (App.
26a-29a) .

*Some 238 lieutenants were subject to mandatory dis-
charge under 10 U.S.C. 6382 on June 30, 1972, 31 of whom
were granted, after discharge, reserve appointments and re-
tained on active duty pursuant to long-established policy
within the Navy to retain officers who are within two years
of retirement eligibility. Forbes affidavit (App. 9a).

*Women officers on active duty numbered 3,233 (as of
November 1972). Of these, 733 were women line or staff
appointees, regular (504) or reserve (229); and 2,500 were
women members of the Nurse Corps or other integrated staff

10 U.S.C. 6401 for women lieutenants presently has
the effect of counteracting other traditional barriers
to full participation and promotional opportunity for
women officers in the Naval service, including previous
size and promotion limitations,“ and continuing re-
strictions against service by women on combatant
vessels and aircraft, 10 U.S.C. 6015 (App. 23a-24a) ;
that if equalization should be absolutely required,
a more appropriate form of equalization in terms
of overall needs of the service would be to eliminate
altogether the 13-year provision and open up more
Navy positions to women officers, thus creating more
promotional opportunity for women officers, rather
than create an across-the-board 13-year selection out
provision for all male Navy lieutenants (App. 22a,
25a); and that, because of fiscal limitations, the im-
mediate effect of the court’s order, if followed in re-
lated class action litigation, could be to jeopardize
the retention (through the end of the present fiscal
year) of 630 lieutenants (junior grade) (App. 24a-
25a).

The court denied the government’s motion for a
new trial (J.S. App. F, p. 27a).

corps, regular (702), temporary (1), or reserve (1,797).
Fink affidavit (App. 259-26a).

The Department of the Navy has provided statistics con-
cerning the number of officers (male and female) serving
on active duty as of September 30, 1973. We have included
these statistics in Table I, infra, p. 21.

* See infra, p. 19, n. 28.

ARGUMENT

STATUTORY CLASSIFICATION BY SEX IS CON-
STITUTIONAL IF RATIONALLY RELATED ‘TO
REASONABLE AND LEGITIMATE GOVERNMENT
OBJECTIVES

The district court held that the difference in selec-
tion out rules for men and women officers was un-
constitutional because it was not justified by a com-
pelling government interest.’ For its conclusion that
such a compelling interest is required, the district
court relied heavily on the opinion of four justices
in Frontiero v. Richardson, 411 U.S. 677 (J.S. App.
B, pp. 17a-19a). That such a showing is not re-
quired is now clear from the subsequently rendered
decision in Kahn v. Shevin, No. 73-78, decided April
24, 1974. That case involved an effort by a male
plaintiff to extend to himself the benefit of a legis-
lative provision which had the effect of offsetting

»The court also foune no evidence of any facts supporting
* * * a rational basis” (J.S. App. B, p. 18a). The reasons
supporting the classification here which were not fully pre-
sented to the court prior to the Motion for a New Trial (J.S.
App. C, pp. 2la-22a) are set out in Part II of this brief,
infra pp. 11-19.

% We note that Section 6401 is not a benefit“ to all women
officers. Women lieutenants subject to Section 6401 who have
been passed over twice at nine years, and wish to leave the
service immediately with severance pay (up to $15,000), can-
not because they have not completed 13 years of commissioned
service, To these officers Section 6401 is a “detriment.” Cf.

social disabilities of women. In an opinion of six
justices this Court held that such a statute is con-
stitutional if it “‘rest{[s] upon some ground of dif-
ference having a fair and substantial relationship to
the object of the legislation.’” Slip op. at 4. Because,
as we demonstrate in Part II of this brief, such con-
siderations are present here, the decision of the court
below was in error.

The decision of this Court in Kahn upheld a statu-
tory $500 exemption for widows but not for widowers.
It is in accord with a long line of this Court’s de-
cisions. Muller v. Oregon, 208 U.S. 412 (upholding
State statute that limited women’s working hours) ;
West Coast Hotel Co. v. Parrish, 300 U.S. 379 (up-
holding State statute that fixed minimum wages for
women but not for men); Goesaert v. Cleary, 335
U.S. 464 (sustaining State statute that forbade the
employment of some women as bartenders) ; Hoyt v.
Florida, 368 U.S. 57 (upholding State statute that
relieved women of jury duty unless they volunteered) ;
and Williams v. McNair, 401 U.S. 951, affirming
316 F. Supp. 134 (D. S.C.) (permitting State to
provide separate branches for male and female col-
lege stu ſents).“

Two v. United States, 471 F.2d 287 (C. A. 9), certiorari de-
nied, 412 U.S. 931.

See also Gruenwald v. Gardner, 390 F.2d 591 (C.A. 2),
certiorari denied, 393 U.S. 982 (sustaining disparity in fed-
eral social security retirement benefits favoring women);
Eslinger v. Thomas, 476 F. 2d 225 (C.A. 4) (invalidating
State resolution barring females from serving as Senate

It is particularly important in the context of this
case that the courts accord to the legislature signifi-
cant flexibility as to classification based on sex, be-
cause the issue here relates closely to the organiza-
tion, maintenance, and effectiveness of the armed
forces. In cases such as this the legislature’s judg-
ment as to military practicality requires deference.
See U. S. Const., Art. I, Sec. 8, Cls. 12, 13 and 14;
Toth v. Quarles, 350 U.S. 11, 17 (“primary business
of armies and navies [is] to fight or be ready to fight
wars should the occasion arise”); Lichter v. United
States, 334 U.S. 742, 755-756 (conscription laws) ;

pages); Robinson v. Board of Regents, 475 F. 2d 707 (C.A.
6), certiorari denied, No. 73-221, May 13, 1974 (sustaining
State college curfew requirement applicable only to females) ;
Miskunas v. Union Carbide Corp., 399 F. 2d 847 (C.A. 7),
certiorari denied, 393 U.S. 1066 (sustaining State common
law rule giving consortium cause of action to men but not
women); Brenden v. Independent School District, 477 F. 2d
1292 (C.A. 8) (invalidating State rule preventing girls from
participating in high school noncontact sports with boys);
Moritz v. C.1.R., 469 F. 2d 466 (C. A. 10), certiorari denied,
412 U.S. 906 (invalidating federal statute denying tax bene-
fits to single males). Contra: Wiesenfeld v. Secretary of
Health, Education and Welfare, 367 F. Supp. 981 (D. N.J.)
(3-judge ct.) (mother’s insurance benefits under the Social
Security Act held discriminatory under compelling interest
test). Compare Healy v. Edwards, 363 F. Supp. 1110 (E.D.
La.) (3-judge ct.), probable jurisdiction noted, Edwards v.
Healy, No. 73-759, February 19, 1974, (invalidating State
statute exempting women from jury service who do not volun-
tarily register for it); Aiello v. Hansen, 359 F. Supp. 792
(N.D. Calif.) (3-judge ct.), probable jurisdiction noted,
Geduldig v. Aiello, No. 73-640, February 17, 1973, (invali-
dating State statute excepting pregnancy-related work loss
from unemployment insurance benefits) .

10

Orloff v. Willoughby, 345 U.S. 83, 94 (military con-
sidered a “specialized community governed by a sepa-
rate discipline from that of the civilian”); United
States v. St. Clair, 291 F. Supp. 122 (S.D. N.Y.)
(draft laws do not unconstitutionally discriminate on
the basis of sex).

This is not a rule like that held unconstitutional in
Frontiero v. Richardson, supra, which denied fringe
benefits to females solely for reasons of administra-
tive convenience. Rather, this case involves policies
closely related to the rate of promotion among
younger officers and hence to the fighting morale
and effectiveness of the armed forces.

In Williams v. McNair, 316 F. Supp. 134, 136-137
(D. S. C.), affirmed, 401 U.S. 951, the district court,
in reviewing a sex classification statute in the civilian
area (authorizing a State women’s college), consid-
ered that any more stringent rule than the reason-
able basis test “would mean that courts and not leg-
islatures would determine [in these situations] all
matters of public policy.” The need to avoid such
a function by the courts would apply a fortiori to
questions involving the separate organization of men
and women in the armed forces.

It is not for the judiciary to review the ti
branch on the question of what military strength Fa err
for the safety of the Nation, nor how the forces shall be
raised, nor of what elements they shall be composed.” Bertel-

sen V. Cooney, 213 F. 2d 275, 277 (C.A. 5), certiorari
348 U.S. 856. *

— eS

— —

11
II

THE DIFFERENCES IN 10 U.S.C. 6382 AND 6401
ARE CONSTITUTIONAL

The different selection out rules of 10 U.S.C. 6382
and 10 U.S.C. 6401 are rationally related to reason-
able and legitimate governmental interests and are
therefore constitutional. We believe, in fact, that
they can, though not required to do so, meet the more
stringent test that they be supported by a compelling
governmental interest. The differences in the two
statutes are justified by the need to maintain a bal-
anced and effective Naval officer corps. This is an
appropriate, legitimate, and very important govern-
mental objective.

The differences in the two statutes are based on a
combination of complex factors, both historic and
practical. The Navy, like the other military services,
has traditionally been a male-dominated service;
duty on board combatant vessels and aircraft is still

See Table I, infra, p. 21. As of September 30, 1973, a
total of 15,034 lieutenants of the Navy serving on active duty
(15,007 male and 27 female) were subject to the provisions
of either 10 U.S.C. 6382 (a) (9,990 regulars), or similar pro-
visions of 10 U.S.C. 6889(a) (5,044 reserves); only 170 lieu-
tenants (female) were subject to the provisions of 10 U.S.C.
6401. An additional 408 lieutenants of the Nurse Corps (76
male and 332 female) were subject to the provisions of 10
U.S.C. 6396(c) (166 regulars) or 10 U.S.C, 6397 (242 re-
serves), which are similar to 10 U.S.C. 6401. Temporary
officers (including 546 temporary lieutenants) hold their ap-
pointments subject to termination by the President. 10 U.S.C.

5596 (h).

12

restricted by statute to males, 10 U.S.C. 6015; male
officers far outnumber female officers; and a system
of orderly and assured promotion or selection out,
based solely on fitness, has been considered by Con-
gress to be essential for the maintenance of an effi-
cient and motivated officer command structure. As
of the present time Congress has not concluded that
the services have arrived at the point where complete
integration of male and female components, and the
rules governing such components, can take place.“
1. 10 U.S.C. 6382 is part of a promotion system
which governs most officers of the Regular Navy.“
Competent line and staff officers of every rank are
required in the operational units of the Navy (which
are largely made up of combatant vessels) and in
support, staff and specialized units. Congress fixes

Had Congress believed that uniform treatment was re-
quired, it seems more likely that it would have made 10 U.S.C.
6382 applicable to women rather than extending, as the dis-
trict court has done, the special provisions of 10 U.S.C.
6401 to men. Indeed, the Department of Defense has pro-
posed elimination of 10 U.S.C. 6401 to Congress. See infra,
page 18, n. 24.

“10 U.S.C. 6382 (a) governs all male lieutenants of the
Regular Navy other than those in the nurse corps. It also
governs women staff lieutenants of the Regular Navy in the
medical, dental, judge advocate general, and medical service
corps (appointed under 10 U.S.C, 5574, 5578, 5578a and
5579). It does not guvern women line and staff lieutenants
appointed under 10 U.S.C. 5590, nor lieutenants (male or
female) of the Nurse Corps.

Reserve officers are subject to elimination from active
status under conditions similar to those prescribed for separa-
tion of regulars. See 10 U.S.C. 6389, 6397.

by statute the total number of personnel in the Navy.
E. g., P. L. 92-436, Section 301, 86 Stat. 735; 86 Stat.
1184; H. Rep. No. 1389, 92d Cong., 2d Sess., p. 48;
10 U.S.C. 5403-5405, 5406-5409. In addition to re-
viewing the ratio of officers to enlisted persons, Con-
gress has set by statute the distribution of the total
number of unrestricted line officers within the various
grades above lieutenant. See 10 U.S.C. 5442(a). The
Secretary has discretion to determine the ratio, with-
in the total number of remaining junior officers au-
thorized, of lieutenants, lieutenants (junior-grade)
and ensigns. 10 U.S.C. 5442(e). Promotions are based
on merit and, in the case of most officers, on vacan-
cies in the next higher grade. 10 U.S.C. 5707, 5756,
5769.“ Separate promotion systems are established
for unrestricted line officers (those eligible to com-
mand at sea), restricted line officers (those not eligi-
ble to command at sea), and for staff officers (supply,
medical corps, etc.). See 10 U.S.C. 5769(b), 5773.

Since the Secretary has discretion to determine the ratio
of lieutenants, lieutenants (junior grade) and ensigns, the
requirement of 10 U.S.C. 5756 that promotions to the next
higher grade depend on vacancies in that grade is subject
to administrative adjustment through adjustment of the num-
ber of officers prescribed for that grade. The Secretary has
fixed the number of lieutenants at a number which creates
fewer vacancies in a particular year than the number of lieu-
tenants (junior grade) eligible for promotion. Attrition from
lieutenant (junior grade) to lieutenant is accomplished largely
by release of Reserve lieutenants (junior grade) to inactive
duty (following completion of their active duty contracts),
and also by the mandatory discharge of Regular lieutenants
(junior grade) twice passed over. 10 U.S.C. 6382(b).

14

Thus officers generally compete for promotion
against officers of similar experience for the taore
limited vacancies which exist in the next higher grade.
The selection out rule for lieutenants twice passed
over—10 U.S.C. 6382(a)—is a necessary part of a
system designed to limit the Naval service to the best
qualified, and to assure timely promotion of qualified
younger officers.

Section 6382(a) is a reenactment of Section 312(h)
of the Officer Personnel Act of 1947, 61 Stat. 860,
which, in turn, was derived from Section 12(c) of
the Act of June 23, 1938, 52 Stat. 949. See S. Rep.
No. 2120, 75th Cong., 3d Sess., p. 10; H. Conf. Rep.
No. 2764, 75th Cong., 3d Sess., p. 4.“ It is an essen-
tial part of the Navy’s merit system of promotion,
first adopted in 1916. As described in the Senate
Report, No. 2120, supra, at p. 4, that selection system

„ Earlier reforms of the naval officer promotion system
(which originally was based solely on seniority) were en-
acted by the Act of July 16, 1862, 12 Stat. 583; Act of Aug.
29, 1916, 39 Stat. 556; Act of Mar. 3, 1931, 46 Stat. 1482;
and Act of May 29, 1934, 48 Stat. 814. “The basic objectives
of the * * * [1947 Act] were to provide a better opportunity
for a reasonable career to the well qualified officer, to provide
for greater equality of promotion opportunities by producing
a more positive flow of promotion, to create a practical method
to accelerate the promotion of outstanding officers in all
grades, and to meet the increased need for specialization in
certain fields.” Seymour, Promotion of Officers in the Naval
Service, 1956 JAG Journal 5, 6. See also H. Rep. No. 640, 80th
Cong., Ist Sess.

The parts of the Officer Personnel Act of 1947 affecting
naval officers were codified in 10 U.S.C. 5401, et seq. by the
Act of Aug. 10, 1956, 70A Stat. 1, 297.

F

whole number in the several grades or ranks,
the needs of the Navy for offi-
of

ii
0 7
117
115 if
i
iit
2229853

the Naval Academy as they pro-
their naval careers. In conse-
it is impossible, without serious stagna-
of promotion and its resultant delay in the
rogressive development of the abilities of offi-
cers through increasing responsibilities, to pro-
mote through all grades the surviving members
of the original Naval Academy classes. * * *
10 U.S.C. 6382(a) meets these problems by estab-
lishing a mandatory attrition requirement for lieu-
tenants twice passed over for promotion, thus per-
mitting an even flow of promotion for most officers of
the Navy through the grade of lieutenant. Similar
statutes provide for the retirement of officers higher
than lieutenant who are twice passed over.

21171
i

10 U.S.C. 6382 (b) requires the separation with severance
pay of lieutenants (junior grade) who are twice passed over
for lieutenant.

* See 10 U.S.C. 6380 (lieutenant commanders); 6379 (com-
manders); 6376 (captains). Retirement (with retirement
pay) in lieu of discharge is justified because these officers
are close to or are eligible for retirement. 10 U.S.C. 6381.

16

During normal peace-time conditions it is expected
that a male lieutenant would complete about 13 years
of commissioned service before he was passed over
twice.” But Congress has permitted an acceleration
of promotions for male officers to meet the rising
need for officers during war-time conditions, as in
the case of the recent conflict in Southeast Asia.”
That conflict, and prior periods of international ten-
sion, have had the effect of reducing the promotion
time for lieutenants, and the selection out time for
those passed over twice, to eight or nine years.” In
the post-war period the opposite trend may be ex-
pected, when the oversupply of officers created by the
war is reduced. In these circumstances the selection
out statutes applicable to male officers continue to
serve a necessary purpose. A 13-year selection out
period for twice passed over male lieutenants would

Petitioner had prior enlisted service (J.S. App. B, p. 13a),
and hence is close to retirement. His situation, however,
is atypical. See Fink affidavit (App. 21a).

See Section 308 (a) (13) of the Officer Personnel Act of
1947, 61 Stat. 846; now 10 U.S.C. 5768(a) (12 year normal
total commissioned service for male line lieutenants). Those
lieutenants considered for promotion to lieutenant commander
for the second time would attain 13 years of commissioned
service. See Fink affidavit (App. 20a-2 1a). Connally affidavit
(App. 10a).

o See 10 U.S.C. 5751 (b), which fixes minimum service-in-
grade requirements for consideration for promotion. (This
section was suspended by the President in 1968 under the
authority of 10 U.S.C. 5785(b). See Executive Order No.
11437, Dec. 2, 1968, 38 Fed. Reg. 17945.)

™ Connally affidavit (App. 11a)

17

be detrimental to the needs of the service, and would
be inconsistent with maintenance of a highly qualified
and competitive Naval officer corps. The number of
promotion opportunities for the grade of lieutenant
would be lessened if twice passed over lieutenants
were allowed to continue serving in that grade, in
view of the requirement that promotion of lieutenants
(junior grade) depend on vacancies by attrition or
promotion in lieutenant ranks.

2. 10 U.S.C. 6401 is part of a separate promotion
system which governs a relatively small number of
women line and staff lieutenants in the Navy.” Un-
der Section 6401 these lieutenants are presently sub-
ject to the same 13-year service tenure originally
enacted in 1948 as the practical equivalent then to
the peace-time selection out time for male lieutenants

* 10 U.S.C. 6401(a) applies to women line and staff lieu-
tenants on the active list (regulars appointed under 10 U.S.C.
5590). A similar statute applies to men and women lieu-
tenants in the Nurse Corps (appointed under 10 U.S.C. 5580).
10 U.S.C. 6396(c). Both of these statutes operate if the lieu-
tenant involved is “not on a promotion list” during the fiscal
year in which 13 years of service is completed, requiring dis-
charge at that time even if the lieutenant was never consid-
ered for promotion (rather than considered and passed over
twice). See Fink affidavit (App. 21a). Women staff lieu-
tenants of the medical, dental, judge advocate general, and
medical service corps (appointed under 10 U.S.C. 5574, 5578,
5578a and 5579) are subject to the same attrition statute
which applies to male lieutenants (10 U.S.C. 6882). See
supra, p. 12, n. 14. Reserve women lieutenants (line, Staff,
and Nu Corps) are subject to elimination from active
status under conditions similar to those prescribed for separa-
tion of in these components. See 10 U.S.C. 6403,
6389, 6397.

18

twice passed over.” Congress may decide to amend
this provision to conform to the selection out rules
applicable to male lieutenants.” However, Congress
has not yet done so, presumably because the retention
for 13 years of women lieutenants (who have been
passed over twice or otherwise have not been pro-
moted) has not been considered inconsistent with
the needs of the Naval service.” The lack of equiva-
lent promotional opportunity for women in the past,”
the relatively small number of women officers in the

* 10 U.S.C. 6401, originally enacted as Section 207(j) of
the Women’s Armed Services Integration Act of 1948, 62
Stat. 368, was so explained in Hearings before the Senate
Committee on Armed Services, on S. 1103, S. 1527, and 8.
1641, Soth Cong., Ist Sess., p. 39.

* The Department of Defense has submitted to the Con-
gress a unifying bill which would, inter alia, substitute for
Section 6401 the same provisions which govern ys *
tenants generally (Section 6382). See Sections 2 (5) an
(18) (C) of H.R. 12405 (98d Cong., 2d Sess.) (substituting
a proposed new 10 U.S.C. 630 for 10 U.S.C. 6382 and 6401),
pp. 41-42, 136. The Department of Defense considers that
the separate rule for women, while serving a legitimate gov-
ernmental purpose (providing additional career security for
women officers of the Navy) is on balance no longer needed
as a matter of military personnel policy. The bill is now
pending before the House Armed Services Committee.

The 1967 Act relating to women members of the armed
forces made no changes to Section 6401. S. Rep. No. 676,
goth Cong., Ist Sess., p. 18.

2 Women line and staff officers lack the combatant and sea
duty of male officers, see 10 U.S.C. 6015, and accordingly
have not only less competitive advantage as against line and
staff male officers, but fewer command positions to which they
could be promoted. See Kinnear affidavit (App. 28a). Since
1967 and within the women’s promotion system, the Secretary

19

service,” and the public interest in increasing rather
than decreasing the overall number of women in the
armed forces, are substantial reasons in support of
the differences in question.”

of the Navy has initiated, as a matter of personnel policy,
a program to accelerate the promotion of women, as author-
ized by 10 U.S.C. 5752. Today, because of Secretarial policy,
women are considered for promotion within the same time
periods as men.

See supra, p. 5, n. 7, and the more recent statistics set
forth in the addendum (Table I, infra, p. 21).

In 1967 Congress repealed the prior restrictions on over-
all number of women in the Navy (enlisted and officers),
restrictions against promotion to captain, and age limita-
tions, and authorized the promotion of women, in certain
circumstances, to flag rank. See Sections 1(14), 1(16), 1
(18) (L), 1(19) and 1(24) of the Act of Nov. 8, 1967, 81
Stat. 374; S. Rep. No. 676, 90th Cong., Ist Sess. As a result,
greater promotional opportunity will be available to women,
with a consequent lessening of the necessity for Section 6401.
However, it should be up to Congress, not the Courts, to de-
termine when the objective of stabilizing career opportunities
for women officers of the Navy, in the manner prescribed by
Section 6401, is no longer necessary.

A 13-year tenure for women lieutenants does not jeopardize
promotion of women lieutenants (junior grade), since all
women lieutenants (junior grade) are eligible for promotion
to lieutenant, regardless of the number of lieutenants, 10
U.S.C. 5760(b); Connally affidavit (App. 11a). By contrast,
the Secretary must limit promotion of male lieutenants
(junior grade) to vacancies existing in the lieutenant ranks.
See supra, p. 13, n. 15.

Indeed, the differing ground rules governing the majority
of women officers of the Navy, none of which are questioned
here, strongly suggest that the two sexes are not “similarly
situated,” for purposes of invoking any claim of irvidious
discrimination. See Wark v. Robbins, 458 F. 2d 1295 (C.A.
1) (different penalties for escape from men’s and women’s
prisons).

Accordingly, the distinction between 10 U.S.C. 6401
and 10 U.S.C. 6382 is constitutional.

CONCLUSION

For the foregoing reasons, it is respectfully sub-
mitted that the judgment of the district court should
be reversed.

Ropert H. Bork,
Solicitor General.

CARLA A. HILLS,
Assistant Attorney General.

JeweE. S. LAFONTANT,
Deputy Solicitor General.

EDMUND W. KITCH,
Assistant to the Solicitor General.

Ropert E. Kopp,
MICHAEL KIMMEL,

Attorneys.
JUNE 1974.

TABLE | 21
OFFICERS OF THE NAVY SERVING ON ACTIVE DUTY AS OF SEPTEMBER 30, 1973
(Derived from information prepared by Personnel Statistics Branch, Bureau of Naval Personnel,
Department of the Navy, and appearing in tables reproduced in NAVPERS 15658)
4 LIEUTENANTS ¢
Class TOTAL OFFICERS Subject to separation under Subject to separation under Temporary
Regular 10 U.S.C. 6382 (a) or similar statute 10 U.S.C. 6401 or similar statute eutenanteo—
Component (inel. Reserve") Total Regular Reserve serve subject to Total
(and appointing authority-Regulars) | Temporary) | (10 USC 591) | Officers 10 USC 6382(a) 110 USC 6389(a) Total Regular Reserve Total || 10 USC 5596(h)
1. | Unrestricted line 28,363 9,967 33330 7,586 1,577 9,163 — — — — 9,163 Notes
(10 USC 5572) () officers
2. | Restricted line 6,260 872 7,132 807 214 1,021 — — — 4¹² 1,433 pointed under 10 U.S.C. 5696,
(10 USC 5587, 5589) (1396) are included with regulars, and
3. | Staff—SC, CC, CEC 5,106 1,616 6,722 959 281 1,240 — — — 35 1,275 are separately indicated
| MALE (10 USC 5575, 5576, 5577, 5589) (144)
OFFICERS | 4. | Staff—MC, DC, JAGC, MSC 3,880 372 8,252 627 2,956 3,583 — — — 99 3,682
(10 USC 5574, 5578, 5578a, 5579) (388) under 10 USC ol except
5. | Staff—Nurse Corps 69 235 — — — 39 37 76 — 76 reserve women of the Medical,
(10 USC 5580) (10 USC 6396(c))| (10 USC 6397) Dental, Medical Service and
6. Total Men 43,678 17,062 60,” 10 9,979 5,028 15,007 39 37 76 546 15,629 — Bape a: General Corps,
(1928) —
| 7. Line 497 348 — — 0 ies — 165 U.S.C. 5581
(10 USC 5590) „ (10 USC 6408) SC —Supply Corps
8. Staff—SC, CC, CEC 15 18 33 — — — 5 0 5 — 5 CC —Chaplain Corps
(10 USC 5590) 8 USC 6401) (10 USC 6403) uC Corps
WOMEN 5. Staff AC, DC, JAGC, MSC 46 53 99 1¹ 16 * — — — — 27 — —ů Py
OFFICERS (10 USC 5574, 5578. 55 78a, 5579) (10 USC 5581) JAGC—Judge Advocate
10. | Staff—Nurse Corps 673 1,434 2,107 — — — 127 20⁵ 332 — 332 General
(10 USC 5580) (10 USC 6396(c) ) (10 USC 6397) | MSC—Medical Service Corps
11. Total Women 1,231 1,853 3,084 11 16 27 297 205 502 — 529
12. Total Officers 44,909 18,915 63,824 9,990 5,044 15,034 336 242 578 546 16,158
TOTAL (1928)

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385003_0030%3A4. Public record. Not legal advice.