Brief for Appellant — Schlesinger v. Ballard

INDEX

Page

88. oi R 8 1

r ee 2

Questions presente 2

Z 8 8 2

EE rr 3

Argument

I. Statutorv classification by sex is consti-

tutiona if rationally related to reason-

able and — — objec-

II. The differences in 10 U.S.C. 6382 and

6401 are constitutional . 11

r 20

1 21

CITATIONS

Cases:

Aiello v. Hansen, 359 F. Supp. 792, prob-

able jurisdiction noted, Geduldig v.

Aiello, No. 73-640, February 17, 1973 9

Bertelsen v. Cooney, 213 F. 2d 275, cer-

tiorari denied, 348 U.S. 856 10

Brenden v. Independent Sci oo. District,

477 F. 2d 66 . 9

Eslinger v. Thomas, 476 F. 2d 225 8

Frontiero v. Richardson, 411 U.S. 677 4, 10

Goesaert v. Cleary, 335 U.S. 464 8

Gruenwald v. Gardner, 390 F. 2d 591,

certiorari denied, 393 U.S. 982 x

Il

Cases—Continued Page

Healy v. Edwards, 363 F. Supp. 1110,

probable jurisdiction noted, Edwards v.

Healy, No. 73-759, February 19, 1974

Hoyt v. Florida, 368 U.S. 57

Kahn v. Shevin, No. 73-78, decided April

24, 1974 * 7, 8

Lichter v. United States, 334 US. 742. 9

Miskunas v. Union Carbide Corp., 399 F.

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

oo

1066 9

Moritz v. C., R., 469 F. 2d 466, eertio-

rari denied, 412 of S 9

Muller v. Oregon, 208 U.S. 412 8

Orloff v. Willoughby, 345 U.S. 88 10

Robinson v. Board of Regents, 475 F. 2d

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

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. 911 8

United States v. St. Clair, 291 F. Supp.

— 10

Wark v. Robbins, 458 F. 2d 1295 5 19

West Coast Hotel Co. v. Parrish, 300

1 8

Wiesenfeld v. Secretary of Health, Edu-

cation and Welfare, 367 F. Supp. 981 9

Williams v. Me Nair, 401 U.S. 951, affirm-

ing 316 F. Supp. 134 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

In

Constitution and statutes—Continued Page

Act of August 29, 1916, 39 Stat. 556 14

Act of March 3, 1931, 46 Stat. 1482 14

Act of May 29, 1934, 48 Stat. 814 14

Act of June 23, 1938, Section 12(c), 52

. ! 14

Act of Aug. 10, 1956, 70A Stat. 1, 297 14

Act of Nov. 8, 1967, 81 Stat. 374, et

seq., Sections 1 (14), 1 (16), 1(18) (L),

r 19

Officer Personnel Act of 1947, 61 Stat.

795, et seq.:

Section 308 (a) (13), 61 Stat. 8468 16

Section 312 (h), 61 Stat. 860 14

Women’s Armed Services Integration Act

of 1948, Section 207(j), 62 Stat. 368 18

86 Stat. 735, Section 301 13

rr 13

10 U.S.C. 5401, et seq. een 14

10 U.S.C. 5403-5405 Pk aes a eS 13

10 U.S.C. 5406-5409 9591 13

. Sena 13

EE ee a aS 13

10 U.S.C. 5574 rern 12, 17

1er 12, 17

5 EERE 12,17

Ss | 5 Fee

1 ae 17

J Yer 12,17

i! SS IESE eT 11

8 r 13

% Ree 16

D 8 19

X. .. * 13

Iv

Constitution and statutes—Continued Page

IIC ee 19

Bi EES RES at eae 16

I Soe incincithinincisctidbeencahbiahdinnatiaes 13

TTT 13

. 13

„J 16

Jr 6, 12, 18

„3 NE 15

r 15

. 15

D x. 15

3 11 2, 3, 4, 5, 11, 12,

15, 17, 18, 20

. 3, 11, 12, 14

r 13, 15

3 — ˙ See 4

. — CC

— es 11

— 11,17

2k — cone 11, 12,17

e 3, 4, 6, 7, 11, 12,

17. 18, 19, 20

12 USC. 66i(e) — 3, 4, 5, 17

„ —— Ree 17

D 4

Miscellaneous:

Executive Order No. 11437, 33 Fed. Reg.

17945 5 16

Hearings before the Senate Committee on

Armed Services, on S. 1108, S. 1527,

and S. 1641, Soth Cong., Ist Sess. 18

H. Conf. Rep. No. 2764, 75th Cong., 3d

Sess. - 14

v

Miscellaneous Continued Page

H. Rep. No. 640, 80th Cong., Ist Sess. 14

H. Rep. No. 1389, 92d Cong., 2d Sess. 13

H.R. 12405, 93d Cong., 2d Sess., Sections

2(5) and 4(18) (L) 18

S. Rep. No. 2120, 75th Cong. ad Sess. - 14

S. Rep. No. 676, ‘90th Cong., 1st Sess. . 18, 19

Seymour, Promotion of Officers in the

Naval Reserve, 1956 JAG Journal 5 14

In the Supreme Court of the United States

OcTOBER TERM, 1973

No. 73-776

JAMES R. SCHLESINGER, SECRETARY OF DEFENSE,

ET AL., APPELLANTS

V.

Lr. RoBerT 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

personnel 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 women

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 sirnilar

conditions before completing 13 years of service (J.S.

App. B, p. 19a). The court, citing Frontiro 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.

21a-22a), and two additional affidavits.’ This affi-

davit pointed out that, of a total of 7 10689 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

o 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

6

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. 25a-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 injra, p. 19, n. 28.

7

ARGUMENT

I

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 found no “evidence of any facts supporting

* * * 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.

10 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 students) .”

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. 3. 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 et.), 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 d fortiori to

questions involving the separate organization of men

and women in the armed forces.”

It is not for the judiciary to review the legislative

branch on the question of what military strength is necessary

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), certi i i

318 U.S. 856. 2.

tees — —

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

1% 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. 6389 (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 govern 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.

18

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, ete.). 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 more

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.

15

provides first for the distribution of the total

number of the officers by given percentages of

the whole number in the several grades or ranks,

fixed according to the needs of the Navy for offi-

cers of these respective grades of responsibility.

These percentages, and the resultant numbers,

are smaller for the upper ranks, since there are

fewer officers needed in these higher grades, and

more in the lower. The decrease in number from

grade to grade is greater than the wastage, or

attrition, through death, resignation, and physi-

eal disability retirement, of the graduating

classes from the Naval Academy as they pro-

gress through their naval careers. In conse-

quence it is impossible, without serious stagna-

tion of promotion and its resultant delay in the

progressive 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.

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). Conaally affidavit

(App. 10a).

0 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, 33 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 12-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 Nurse Corps) are subject to elimination from active

status under conditions similar to those prescribed for separa-

tion of regulars in these components. See 10 U.S.C. 6403,

6389, 6397.

18

twice passed over.” Congress may decide to amend

this provision to conform te 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 beer.

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 Navy lieu-

tenants generally (Section 6382). See Sections 2(5) and 4

(18) (L) of H.R. 12405 (93d 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.

2 The 1967 Act relating to women members of the armed

forces made no changes to Section 6401. S. Rep. No. 676,

90th Cong., Ist Sess., p. 13.

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

— enn —

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 ent statistics set

forth in the addendum (Table I, infra, p. .:).

* 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

418) (D), 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 invidious

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.

RoBerT H. BorK,

Solicitor General.

CARLA A. HILLS,

Assistant Attorney General.

JEWEL S. LAFONTANT,

Deputy Solicitor General.

EDMUND W. KITCH,

Assistant to the Solicitor General.

RoBerT E. Kopp,

MICHAEL KIMMEL,

Attorneys.

JUNE 1974.

TABLE |

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)

21

LIEUTENANTS

Class TOTAL OFFICERS Subject to separation under Subject to separation under

| Regular 10 U.S.C. 6382(a) or similar statute 10 U.S.C. 6401 or similar statute

| f

ö Component (inel. Reserve tr Total Regular Reserve | — — — to —

1 (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 38,330 7,586 1,577 9,163 — — — — 718

ö . (10 USC 5572)

2. | Restricted line 6.260 872 7.132 807 214 1.021 — — — 412 1,433

| | (10 USC 5587, 5589) (1396)

3. | Staff—SC, CC, CEC 5,106 1,616 6,722 959 281 1,240 — — — 3⁵ 1.275 —

MALE 0 USC 5575, 5576, 5577, 5589) (144) 4

OFFICERS | 4. Staff — MC, DC, JAGC, MSC 3,880 4,372 8,252 627 2,956 3,583 — — — 99 3.682

dio USC 5574, 5578. 5578a, 5579) (388)

( 5. | Staff—Nurse Corps 69 235 304 — — — 39 37 76 — 76

. (10 USC 5580) (10 USC 6396(c) )| (10 USC 6397) l

6. Total Men 43,678 17,062 60,740 9,979 5,028 15,007 39 37 76 546 15,629

i | (1928)

| 7. Line 497 348 845 — — — 165 0 165 — 165

g % USC 5590) (10 USC 6401) | (10 USC 6403)

: 8. Staff—SC, CC, CEC 15 18 33 — — — 5 0 5 — 5

| A USC 5590) (10 USC 6401) (10 USC 6403)

‘WOMEN 9. Staff—MC, DC, JAGC, MSC 46 53 99 11 16 27 — — — — 27

OFFICERS (10 USC 5574, 5578. 5578a, 5579) (10 USC 5581)

10. Staff—Nurse Corps 673 1,434 2,107 — — — 127 205 332 — 332

(10 USC 5580) (19 USC 6396(c})| (10 USC 6397)

| 11. Total Women 1,231 1,853 3,084 11 16 27 297 205 502 — 529

L. 1

. 12. Total Officers 44.909 18.915 63.824 9.990 5.044 15,034 336 242 578 546 16,400

— | (1928)

i | wil

All reserves are appointed