Petition for Writ of Certiorari — Mack v. Weinberger

Ge ~ 179% 22

FILED

IN THE

Supreme Court of the Unite Stkthse® ive

OCTOBER TERM, 1985 an oon JR

= ans oomnatine

CARLENE MACK, SHIRLEY STUKES, PATRICIA RAMSURE, QUEEN ESTHER

TAYLOR, THELMA BARNES, and MAXINE MCNEILL, Individually and

on behalf of all other persons similarly situated, and TRINA LEWIS,

Intervenor at

: Petitioners,

—Vvs.—

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,

Respondents.

PETITION FOR A WRIT OF CERTIORARI TO THE UNITED STATES

COURT OF APPEALS FOR THE SECOND CIRCUIT

PHYLLIS GELMAN JAMES I. MEYERSON

Suite 11-A Counsel of Record

211 West 106th Street 351 Broadway, 3rd Floor

New York, New York 10025 New York, New York 10013

(212) 749-5736 (212) 226-3310

Of Counsel To: Of Counsel To:

GREATER UPSTATE LAW PROJECT GREATER UPSTATE LAW PROJECT

By: STEVEN BROWN— Director By: STEVEN BROWN—Director

101 Powers Building 101 Powers Building

Rochester, New York 14614 Rochester, New York 14614

(716) 454-6500 (716) 454-6500

and

NATIONAL CENTER ON WOMEN &

FAMILY LAW

By: LAURIE Woops—Directo1

799 Broadway, Room 402

New York, New York 10003

(212) 674-8200

ATTORNEYS FOR PETITIONERS

(Counsel continued on inside front cover)

On the Petition:

MARGARET KLAW, ESQ.

BRUCE CAMPBELL—Legal Director

American Civil Liberties

Union of Ohio Foundation

360 South Third Street

Suite #150

Columbus, Ohio 43215

(614) 228-8952

ATTORNEY FOR PETITIONER

PLAINTIFE-INTERVENOR LEWIS

Law Offices of Phyllis Gelman, Esq.

Suite 11-A

211 West 106th Street

New York, New York 10025

(212) 749-5736

QUESTION PRESENTED

Do military regulations which cate-

gorically exclude single parents from

enlistment violate petitioners' .funda-

mental right to have and raise a family?

TABLE OF CONTENTS

Page

QUESTION PRESENTED........-- eee eeeeees i

TABLE OF AUTHORITIES.........---e0- iii

OPINIONS BELOW. ......ccccccccccssccess 1

JURISDICTION . cv cccewecec rence er eesenss 1

CONSTITUTIONAL PROVISION............-- 2

CHALLENGED REGULATIONS.........-+-e2- 2

STATEMENT OF THE CASE........---eeeee> 4

Factual Background........--.-+-2+e+- 4

Procedural Background...........- 16

REASONS FOR GRANTING THE WRIT........ 20

I. RESPONDENTS' EXCLUSION OF SINGLE

PARENTS FROM ENLISTMENT IMPER-

MISSIBLY INTERFERES WITH PETI-

TIONERS' RIGHT TO HAVE AND RAISE

A FAMILY... cccccccccreccscccers 20

Il. PETITIONERS' FAMILY RIGHT CLAIM

IS ENTITLED TO A REVIEW ON THE

MERITS . .cccvcce ses esses asa eeenes 27

CONCLUSION... .cccsccccccecssenesvneues 31

INDEX TO APPENDIX...... ever TT Te. Al

-ii-

TABLE OF AUTHORITIES

Cases: Page

Andrews v. Drew Municipal Sep-

arate School District, 50/7

F.2d 611 (5th Cir., 1975),

cert. dismissed as improv-

ranted, 425 U.S.

identl

559 (T5725 EE a a 22

Ayotte v. Secretary of De-

fense, No. 80-0328P (D.Me.,

EN aa an A boy 605 060.005 606 19

Beller v. Middendorf, 632 F.2d

788 (9th Cir., 1980), reh.

Cafeteria and Restaurant Workers

Union v. McElroy, 367 U.S.

Te ee coe eeccnn 29

Cleveland Board of Education

v. LaFleur, 414 U.S. 632

TRS aa, as

Dike v. School Board of Orange

County, Florida, 650 F.2d

RS 5) 21

Dillard v. Brown, 652 F.2d

ES.) 19

Drake v. Covington Board of

Education, 371 F.Supp. 974

EE re 22

Frontiero v. Richardson, 41l

So En 25

Page

Goldman v. Weinberger, 54

U.S.L.W! 4298 (March 25,

i Sere oer ere rT ree eT 26, 28, 29, 30

Henson v. Alexander, 478 F.

Supp. 1055 (W.0. Ark. , 1979). ..005. 19

In re Marriage of Carney, 24 \

Cal. 3d 725, 598 P.2d 36

es | rar rary ee ee eee 10

Lindenau v. Alexander, 663 F.

Be ee Se Gee, 5 REED 65 oe dk 0k 0002 19

Loving v. Virginia, 388 U.S.

eek ee eee re Te ee Te ere ree re 20

Mack v. Rumsfeld, No. 85-6184

(2nd Cir., January 29, 1986,

amended, March 5, 1986)........ 18, 27

Mack v. Rumsfeld, 609 F.Supp.

ba Ae OM ee) ) Pere ee passim

Meyer v. Nebraska, 262 U.S. 390

CAPES? ie ene DWAR EOOE 6 CED N OD HERR S 20

Moore v. City of East Cleveland,

RSe Wis See Seer hes kus own a Pe

Noel v. Derrick, 71 A.D.2d 704,

2) Bo Mee ee ls ) ere 10

Painter v. Bannister, 258 la.

1390, 140 N.W.2d 152, cert.

denied, 385 U.S. 949 (1966)........ 10

Parker v. Levy, 417 U.S. 733

i. re Seer ee Pree ere eee ere 30

-iv-

Personnel Administrator of

Massachusetts v. Feeney,

BAe Sees ae COSTE ew ct a wetenckewess 7

Pierce v. Society of Sisters,

gf Meet: Bee Oe) eer eee. 20

Rostker v. Goldberg, 453 U.S.

DF COPS L cdc weak wteweseseees de esons 26

Santosky v. Kramer, 455 U.S.

Bt) eee eer es eee ee 20

Skinner v. Oklahoma, 316 U.S.

MB): i rr ee ee eee 20

Stanley v. Illinois, 405 U.S.

OAD CEPT EP hs iiccestetacew¥es eens 20, 21

West v. Brown, 558 *.2d 757

(Sth Cic., 1977), cert.

denied, 435 U.S. 926 (1978)........ 19

Wisconsin v. Yoder, 406 U.S.

Re CROCE aks KR 04S REE ROEM 20

Zablocki v. Redhail, 434 U.S.

Ph ener ae, £2; 49

Statutes:

United States Constitution,

at. |. nee rer eee passim

Other Authorities:

"Critical Choices for the

Eighties," Twelfth Report

of the National Advisory

Council on Economic Oppor-

tunity, Superintendent of

-V-

(cont. )

Documents, U.S. Government

Printing Office, Washington,

D.C. 20402, Stock No. 041-008-

00018-1

Holm, Women in the Military:

An Unfinished Revolution,

arr e Terre ete eee rT eee eee

Uniform Marriage and Divorce

Ee ee ere alec a Saw ae 4 8 eee

U.S. General Accounting Office,

"Army Needs Better Data to

Develop Policies for Sole and

*-—e*e ee eeeeeeeeneteee#sk#keeeese#see#ee## eee

Inservice Parents,’ 1982....12, 13, 27

-vi-

OPINIONS BELOW

The decision of the United States

District Court of New York is reported

at 609 F.Supp. 1561 (W.D.N.Y. 1985), and

is set forth in petitioners’ Appendix 1

at A2, infra. The per curiam Opinion

of the United States Court of Appeals for

the Second Circuit is unreported and is

set forth in Appendix 2, at A56, infra.

An Order amending the per curiam Opinion

is unreported and is set forth in Appen-

dix 3 at A60, infra.

JURISDICTION

The decision of the United States

Court of Appeals for the Second Circuit

is dated January 29, 1986. Jurisdiction

is conferred on this Court by 28 U.S.C.

Section 1254 (1).

CONSTITUTIONAL PROVISION

Constitution of the United States,

Amendment V: "No person shall...be de-

prived of life, liberty, or property,

without due process of law..."

CHALLENGED REGULATIONS

The texts of the challenged regula-

tions are set out in the appendices to

the decision of the District Court (Ap-

pendix 1, infra) as follows:

Army Regulation AR 601-210, effec-

tive April 1, 1975, and continued July

28, 1976, same as Army Reserve Regulation

AR 140-111, effective May 1, 1975, at A45,

Army Regulation AR 601-210, effec-

tive November 1, 1980, as amended Decem-

ber 1, 1980, at A46, infra.

Army Reserve Regulation AF 140-111,

effective February 1, 1979, at A47, in-

fra.

Army and Army Reserves combined Reg-

ulation AR 601-210, effective October l,

1982, at A49, infra.

Air Force and Air Force Reserves

AFR 33-3, effective March 31, 1975, at

A52, infra.

Air Force and Air Force Reserves

AFR 33-3, effective October 14, 1977, at

A53, infra. |

Air Force and Air Force Reserves

ATCR 33-2, effective August 31, 1982, at

A55, infra.

STATEMENT OF THE CASE

This case involves petitioners'

fundamental right, protected by the Due

Process Clause, to have and raise a fam-

ily. The issue presented is whether the

Army, Air Force, the Army Reserve and

the Air Force Reserve can categorically

exclude from enlistment all single par-

ents with legal custody of minor child-

ren.

FACTUAL BACKGROUND

The military's ban on the enlist-

ment of single parents has devastating

social consequences for a large and dis-

advantaged segment of the United States

population. The people excluded are

overwhelmingly female - the ratio of fe-

male single parents to male single par-

ents under the age of 25 is 14 to l.

They are also impoverished - single

mothers are the poorest of all popula-

tion groups in the country, and their

numbers are growing rapidly. The Na-

tional Advisory Council on Economic Op-

portunity found in 1980 that "All other

things being equal, if the proportion of

the poor who are in female-headed fam-

ilies were to increase at the same rate

as it did from 1967 to 1977, the poverty

population would be composed solely of

women and their children by about the

year 2000."2

Black women, who are three times

more likely than white women to join the

military, are especially affected by re-

spondents' regulations. Young black wo-

men are 31 times more likely to be sin-

1. "Critical Choices for the Eighties,"

Twelfth Report of the National Advisory

Council on Economic Opportunity, Super-

intendent of Documents, U.S. Government

Printing Office, Washington, D.C. 20402,

Stock No. 041-008-00018-1.

a

gle parents than their male counterparts.

They comprise 35% of all single mothers;

more than half the children born to

black women of all ages are born to sin-

gle mothers. Black women have the high-

est rate of unemployment of any adult

group in the country and face the high-

est rate of poverty: more than 702% of

all black families in poverty are headed

by women.

The opportunities which military

service would provide to single parents

are unparallelled. Together, the armed

forces comprise the largest employer in

the country and the largest provider of

teabnine. For petitioners, military

service presents an opportunity to re-

ceive training, to make a reasonable sal-

ary that is not reduced by sex discrim-

ination, and to avoid the vicissitudes

of unemployment, which was 11.1% for

a

single mothers in 1978, as compared to

6.0% for the general population. Also,

those employed by the active services

become veterans upon discharge and are

entitled to a panoply of special rights,

including veterans’ preferences for civ-

il service iobs and hence the opportun-

ity for a civilian career, see, Person-

nel Administrator of Massachusetts v.

Feeney, 442 U.S. 256 (1979), as well as

extensive education, health, disability,

and pension benefits. Finally, enlist-

ment in the armed forces provides a

unique opportunity to make a career of

serving one's country.

If single parents choose to pursue

this opportunity by complying with re-

spondents' regulations, they pay a heavy

price: they must give up custody of

their children or terminate all parental

rights outright. To enter the Air Force

=o

or Air Force Reserve, single parents

must relinquish custody permanently; for

the Army or Army Reserve they must relin-

quish custody for the duration of their

first term of enlistment, which is us-

ually three years. Because of the legal

requirement that custody decisions must

be made in the child's best interest, a

parent who relinquishes custody for

three years may never be able to regein

it. Thus respondents' regulations re-

quire the actual severance of family

ties, often on a permanent basis.

A leading expert on family law,

Professor Carol S. Bruch of the Univer-

sity of California at Davis School of

Law, discusses the implications of a

three year relinquishment : 7

2. Bruch, "Implications of Army and Air

Force regulations excluding single par-

ents with custody from enlistment (Mack

v. Rumsfeld)", March 8, 1983, at 10-11,

éfie

With its increased emphasis on con-

tinuity of primary nurturing rela-

tionships and surroundings, custody

law now insures that children will

not be bounced back and forth to

suit the convenience of adults.

The legal test that awards custody

according to the best interest of

the child stands as a warning to

parents who would place their chil-

dren for extended care with another,

whether a parent, relative or

stranger. A consistent pattern of

judicial decisions demonstrates its

effect. If a person in whose home

the child has resided (i.e., a sin-

gle parent who has relinquished

custody in order to enlist) seeks

to regain custody after a lengthy

period, return of the child cannot

be anticipated. A period of three

or more years is considered ex-

tremely long for children of any

age; it would be quite rare for

children (other than, perhaps,

teenagers) to be returned to a par-

ent after such a lengthy absence

unless the children wished the re-

turn. And, it would be highly un-

usual for children who had devel-

oped a stable, loving relationship

in a new household to wish to re-

turn to a parent who had been but a

visitor in the interin.

Cases across the country bear out this

2. (cont.) reproduced, at Joint Appendix

0391-0405, filed with the U.S. Court of

Appeals for the Second Circuit.

in

analysis.> Even transfer to a close

relative does not assure return. Class

member Geraldine Schmidt transferred

custody of her two-year old daughter to

her parents when she was seventeen, in

order to enlist in the Air Force. Mid-

way through the enlistment process, when

she discovered that the Air Force would

not permit her to regain custody, she

decided not to enlist. Her parents, how-

3. E.g., Noel v. Derrick, 71 A.D.2d 704,

418 NY. Ss. 2d 481 (1979) (father could

not regain custody because children had

been living with mother less than two

years); In re Marriage of Carney, 24 Cal.

3d 725, 598 P.2d 36 (1979) (mother could

not regain custody of children after five

years even though father had become a

quadriplegic); Painter v. Bannister, 258

Ia. 1390, 140 N.W.2d 152, cert. denied,

385 U.S. 949 (1966) (custody awarded to

grandparents even though father had in-

tended them to care for child temporar-

ily and had sought return after sixteen

months); see also §409 of the Uniform

Marriage and Divorce Act requiring that

a modification petition filed within two

years of entry of a custody decree be de-

nied without a hearing unless the child's

physical or mental health is seriously

endangered.

«PO«

ever, refused to give her daughter back.

Because Ms. Schmidt does not have the

money to fight a custody battle in court,

her daughter - now eight years old - con-

tinues to live with her parents. Al-

though her daughter stays with her per-

iodically, Ms. Schmidt's parents always

come to take her back, carrying their cus-

tody papers and accompanied by police

officers."

Respondents attempt to justify their

regulations by arguing that single par-

ents cannot be relied upon to deploy

when needed. However, this perception

is factually unsupported. It is not

borne out by the facts as to the peti-

tioners - who are able to care for their

children and meet their responsibilities

4. Affidavit of Geraldine Schmidt, re-

produced at Joint Appendix 1985-1987,

filed with the U.S. Court of Appeals for

the Second Circuit.

at.

as full time workers - nor by respon-

dents' own studies of single parent per-

formance. The District Court found that

"better, more reliable techniques for

assessing the day-to-day performance and

the likely availability of single parents

in time of national crisis should be im-

plemented...'' Mack v. Rumsfeld, 609 F.

Supp. at 1568. In the only independent

study done on the subject, the U.S. Gen-

eral Accounting Office concluded that the

Army has no basis for excluding single

parents from enlistment.”

5. U.S. General Accounting Office, “Army

Needs Better Data to Develop Policies for

Sole and Inservice Parents", 1982. The

GAO reviewed the Army's studies of the

performance of single parents and did an

additional study of its own. The GAO

concluded, "The Army lacks a solid basis

for restricting the enlistment of sole

and inservice parents...Our review showed

that while some problems do exist, most

sole and inservice parents included in

our survey attend and perform work at

least satisfactorily and would most like-

ly deploy in a timely manner in the event

~~

Indeed, the District Court noted

that petitioner Thelma Barnes is "the

most dramatic single illustration," 609

F.Supp. at 1569, of the lack of justifi-

cation for respondents’ categorical ex-

clusion of single parents. Barnes' en-

listment in the Army Reserve was voided

because she was a single mother even

though her mother, with whom she and her

child lived, provided full-time child

care. However, Ms. Barnes' sister, who

enlisted in the Reserve on the same day

as Ms. Barnes and who also had a child

cared for full-time by their mother, was

able to remain in the Reserve because she

was married. Ms. Barnes' sister, who

subsequently separated from her husband,

has been promoted to sergeant.

The enlistment ban on single parents

5. (cont.) of war or a national emergen-

cy" (at 11). Reproduced at Joint Appen-

dix 1891-1934, filed with the U.S. Court

of Appeals for the Second Circuit.

«ots

is not based on concerns about deploya-

bility; rather, it is merely the most

recent incarnation in a series of enlist-

ment regulations which have imposed var-

ious "moral" criteria on women seeking to

enter the armed forces. Until recently,

the services had an outright ban on the

enlistment of unwed mothers, regardless

of whether their children had been given

up for adoption or had died. This ex-

clusion was justified on the grounds of

morality and the image of the services,

and not on the basis that unwed mothers

would be unable to perform military du-

ties. No such ban was applied to the en-

listment of men who had fathered illegit-

imate children. °

6. Memorandum for the Record: Enlistment

Policies for Unwed Mothers, 11 September

1970, with attached documents, repro-

duced at Joint Appendix 0593-0617, filed

with the United States Court of Appeals

for the Second Circuit.

«thn

In addition, Army enlistment regula-

tions detailed "Special Processing for

Women.'' The purpose of the special pro-

cessing (which included a statement of

marital status and the number and ages of

dependents under 18 years of age) was,

inter alia, to

insure that only mature, motivated,

emotionally stable, adaptable, self-

disciplined and fully qualified wo-

men who possess the moral and be-

havioral attributes necessary for

military life are accepted for en-

listment in the regular Army. (emph.

added).

Those regulations - like the current ex-

clusion of single parents from enlistment

which falls almost exclusively on single

mothers - were motivated not by military

necessity but by a stereotyped view of

7. Army Regulation 601-210, Section VII,

Special Processing for Women, reproduced

at Joint Appendix 0782, filed with the

United States Court of Appeals for the

Second Circuit.

how families should be structured. As

Major General Jeanne Holm (USAF Ret.) has

written, for the military "a woman's ob-

ligations as wife and mother superseded

all other responsibilities and were as-

sumed to be inherently incompatible with

military service.""®

PROCEDURAL BACKGROUND

The petitioners are seven single

mothers, six of whom are black, who were

denied enlistment in the Army, Army Re-

Serve, Air Force, and Air Force Reserve

solely because they are single parents

with custody of minor children. Peti-

tioners brought this action in 1976 in

the United States District Court for the

Western District of New York, alleging

that the regulations violate their Fifth

Amendment right to freedom of choice in

8. Women in the Military: An Unfinished

Revolution, at 162 (1982).

aiGe

eee

family matters, create an unconstitu-

tional irrebuttable presumption, and dis-

criminate against then because they are

women. In 1977 petitioners were certi-

fied to represent a nationwide 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."' Opinion and Order of the District

Court, dated June 20, 1977.

On cross motions for summary judg-

ment, the District court granted respon-

dents' motion, ruling that the controver-

sy was justiciable but rejecting all of

petitioners’ constitutional claims.

Despite the ruling in favor of justicia-

bility, the District Court failed to re-

view petitioners' family right claim on

the merits, stating merely that petition-

> >

ers have no right to join the military.

On appeal, petitioners were suppor-

ted by amici curiae American Veterans

Committee, Comparable Worth Project, Com-

mittee on Children and the Law of the

Association of the Bar of the City of New

York, The Employment Law Center, The Na-

tional Association for the Advancement of

Colored People, National Coalition

Against Domestic Violence, National Con-

ference of Black Lawyers, National Poli-

tical Congress of Black Women, Women's

Equity Action League, and Women's Legal

Defense Fund.

The United States Court of Appeals

for the Second Circuit affirmed the

opinion of the District Court in a per

curiam opinion dated January 29, 1986,

as amended March 5, 1986. The opinion

did not mention the family right issue.

Thus, although this case is now ten years

tin

old, no court has reviewed the petition-

ers' claim that the Army and Air Force's

exclusion of them from enlistment because

they are single parents impermissibly in-

terferes with the exercise of their fun-

damental right to have and raise a fam-

ily.?

9. Family rights challenges to the en-

listment ban on single parents, brought

in other circuits, have been dismissed

because of doctrines of severely limited

justiciability in military cases, Linden-

au v. Alexander, 663 F.2d 68 (10th Cir.

1981); West v. Brown, 558 F.2d 757 (5th

Cir. 19/7/), cert. denied, 435 U.S. 926

(1978); Henson v. Alexander, 478 F. Supp.

1055 (W.D. Ark., i979); Ayotte v. Secre-

tary of Defense, No. 30-0328P (D. Me.,

Sept. 9, 19/8). The Second Circuit pro-

perly considers petitioners’ claim jus-

ticiable: petitioners were able to con-

duct discovery and to develop their

claim. Thus, this is the only case in

which a fully-developed record on the is-

sue is likely to reach this Court. (The

Third Circuit held a similar claim jus-

ticiable, Dillard v. Brown, 652 F.2d 316

[3rd Cir., 1981], but respondents set-

tled the case.)

19.

REASONS FOR GRANTING THE WRIT

I. RESPONDENTS' EXCLUSION OF SINGLE PAR-

ENTS FROM ENLISTMENT IMPERMISSIBLY IN-

TERFERES WITH PETITIONERS' FUNDAMENTAL

RIGHT TO HAVE AND RAISE A FAMILY

Freedom of choice in matters of family

life is a fundamental liberty interest

protected by the Due Process Clause.

Santosky v. Kramer, 455 U.S. 745 (1982).

This Court has long recognized the right

of parents to raise and educate their

children, Meyer v. Nebraska, 262 U.S. 390

(1923), Pierce v. Society of Sisters, 268

U.S. 510 (1925), Wisconsin v. Yoder, 406

U.S. 205 (1972), Stanley v. Illinois, 405

U.S. 645 (1972); and the right to form

families, Skinner v. Oklahoma, 316 U.S.

535 (1942), Zablocki v. Redhail, 434 U.S.

374 (1978), even when those families do

not conform to traditional expectations,

Moore v. City of East Cleveland, 431 U.S.

494 (1977), Loving v. Virginia, 388 U.S.

1 (1967). The government may not favor

=20«

ener em we

one family style over another by "forcing

all to live in certain narrowly defined

family patterns." Moore v. City of East

Cleveland, 431 U.S. at 506; accord, Stan-

ley v. Illinois, 405 U.S. at 651-652.

If a mother exercises her constitu-

tional right to have and raise a family

as a single parent, she is permanently

foreclosed from the opportunity for mili-

tary service. The government may not cut

off employment opportunities even tempor-

arily on the basis of choice of family

life style. A school board could not re-

quire extended maternity leave, thereby

curtailing a teacher's opportunity to

work if she chose, because the state can-

not "penalize the pregnant teacher for

deciding to bear a child." Cleveland

Bd. of Ed. v. LaFleur, 414 U.S. 632, 640

(1974). The lower courts have applied

the same reasoning to cases involving

other family rights. Dike v. School

RT x

Board of Orange County, Florida, 650 F.2d

783 (5th Cir. 1981) (circuit court re-

versed dismissal of case of school tea-

cher who was not permitted to breastfeed

her child on school property during the

school day); Drake v. Covington Board of

Education, 371 F.Supp. 974 (M.D. Ala.

1974) (three-judge court) (dismissal of

unmarried pregnant schoolteacher held

unconstitutional); Andrews v. Drew Muni-

cipal Separate School District, 507 F.2d

611 (5th Cir. 1975), cert. dismissed as

improvidently granted, 425 U.S. 559 (1976)

(school district rule barring employment

of unwed parents held unconstitutional).

A fortiori, the government's perma-

nent denial to single mothers of the op-

portunity for military service violates

the Constitution. Single mothers are

forced to make a Hobson's choice between

giving up their fundamental right to

raise their children and permanently fore-

-22-

going an opportunity which includes a ca-

reer, training, travel, veterans’ bene-

fits, and the honor and satisfaction of

serving one's country.

Because respondents’ regulations

significantly infringe on petitioners’

fundamental rights, they are invalid un-

der the Due Process Clause unless they

are closely tailored to effectuate the

military's interest in deployability.

Zablocki v. Redhail, 434 U.S. at 388;

Moore v. City of East Cleveland, 431 U.S.

at 499-500. The categorical exclusion of

single parents is not a policy closely

tailored - indeed, is not tailored at

all - to promote these interests.

A constitutionally acceptable alter-

native to respondents’ present regula-

tions would be individualized screening

of single parents through the enlistment

process. The Army and Air Force already

screen and test each applicant to deter-

«fee

mine his or her physical condition, men-

tal ability and aptitude, educational

background, stability, and character.

The armed services should be required to

determine for each single mother who ap-

plies whether she will be able to meet

her military responsibilities, based on

the needs of the service? and the moth-

er's plans for the child's care while she

is in the military. The District Court,

citing the example of petitioner Thelma

Barnes (discussed supra, at 13), termed

her the "most dramatic single illustra-

tion" offered which "lends support to

plaintiff's argument that, at the least,

10. Deployment lead-times vary drastic-

ally among the services; for example, the

Army Reserve gives female soldiers at

least 14 days’ warning even in the event

of a worst-case war, Defendants’ Third

Supplemental Response to Plaintiffs'

Third Set of Interrogatories and First

Request for Production of Documents, re-

produced at Joint Appendix 0828-0830,

filed with the U.S. Court of Appeals for

the Second Circuit.

-34-

single parent applicants should be re-

viewed on an individual basis." Mack v.

Rumsfeld, 609 F.Supp. at 1569. (Emphasis

added).

While it may be simpler for the mil-

itary to employ the overbroad exclusion

from enlistment of all single parents for

the sake of administrative convenience,

this Court has clearly found that such a

goal is "insufficient to make valid what

otherwise is a violation of due process

of law,'' Cleveland Board of Education v.

LaFleur, 414 U.S. at 647. The constitu-

tion "requires the [government] to employ

alternative administrative means, which

do not so broadly infringe upon basic

constitutional liberty, in support of

their legitimate goals."' Id. Accord,

Frontiero v. Richardson, 41l U.S. 677

(2973).

The military context of this case

oe

does not alter this requirement: when a

fundamental right is involved, a military

regulation which burdens the exercise of

that right will be upheld only if it is

the necessary or least restrictive way to

promote a compelling governmental inter-

est. Beller v. Middendorf, 632 F.2d 788,

807 (9th Cir., 1980), reh. denied, 647

F.2d 80 (9th Cir., 1980), cert. denied,

454 U.S. 855 (1981). This Court has ex-

plicitly held that a lower standard of

review should not be applied to constitu-

tional claims merely because they arise

in a military context. Rostker v. Gold-

berg, 453 U.S. 57, 69 (1981) and 453 U.S.

at 87, n.3 (Marshall, J., dissenting).

The First Amendment refinement of the

standard of review adopted by the major-

ity in Goldman v. Weinberger, 54 U.S.L.W.

4298 (March 25, 1986), does not extend to

the substantive guarantee of due process at

issue in this case. However, evenif a low-

=

ered standard of review were to be ap-

plied to petitioners’ family right claim,

petitioners would prevail because, as the

U.S. General Accounting Office found, the

respondents do not have data to justify

their categorical exclusion of single

mothers from enlistment, see discussion

at 12 and n.5, supra.

II. PETITIONERS' FAMILY RIGHT CLAIM IS

ENTITLED TO A REVIEW ON THE MERITS

The District Court made no finding

whatsoever as to any of the factual or

legal arguments presented by petitioners

in support of their family right claim.

Rather, the court rejected that claim

outright, stating in one sentence that

petitioners have no constitutional right

to join the military. Mack v. Rumsfeld,

609 F.Supp. at 1564. The Second Circuit

affirmed the judgment below for "sub-

stantially the same reasons." Thus, pe-

titioners' constitutional claim about a

policy which deeply affects their lives

and the lives of thousands of other Amer-

icans has received no review at all from

any court.

There is no justification for this

failure to review. The military do not

have carte blanche to interfere with

fundamental constitutional rights with-

out scrutiny from the courts. Goldman v.

Weinberger, 54 U.S.L.W. 4298 (March 25,

1986). That petitioners have no right to

join the military is irrelevant; peti-

tioners make no such claim. Rather, the

proper inquiry in this case is the extenc

to which respondents' regulations burden

the exercise of petitioners’ fundamental

right to have and raise a family. If the

single parent exclusionary policies "sig-

nificantly interfere" with petitioners'

constitutionally protected right to raise

«28-

their children and to choose their fam-

ily life style, the policies cannot be

upheld unless they are closely tailored

to effectuate compelling governmental in-

terests. Zablocki v. Redhail, 434 U.S.

at 388.

This case involves broad sociopoli-

tical judgments which implicate the

basic constitutional right to have and

raise a family. The challenged regula-

tions do not reflect the technical judg-

ment of military professionals about in-

ternal governance matters such as the ad-

ministration of military bases, Cafeteria

and Restaurant Workers Union v. McElroy,

367 U.S. 886 (1961), or the need for uni-

form dress codes, Goldman v. Weinberger,

54 U.S.L.W. 4298 (March 25, 1986). Peti-

tioners' claims do not involve the extent

to which individual autonomy must be tol-

erated "within the military community."

_—

Goldman v. Weinberger, 54 U.S.L.W. at

4299, citing Parker v. Levy, 417 U.S.

733, 751 (1974). Rather, this case

raises the threshold question of who may

join that community. The decision to

categorically exclude an entire segment

of the population from military service

is political, not technical. 21 Were the

military to categorically exclude blacks

or Jews from enlistment, the courts would

not simply defer to their judgment. Pe-

titioners are entitled to a judicial re-

view of their claim.

11. Deposition of Robert Burns Pirie, Jr.,

Assistant Secretary of Defense, 1979-

1981, reproduced at Joint Appendix 0083,

filed with the U.S. Court of Appeals for

the Second Circuit.

-30-

eileen iain

CONCLUSION

Wherefore, petitioners pray that

this Court issue a writ of certiorari to

the Second Court of Appeals to review its

judgment.

Dated: April 28, 1986

New York, New York

Respectfully submitted,

(Pipe i

PHYLL 16/GELMAN-

Suite 11-A

211 West 106th Street

New York, New York 10025

(212) 749-5736

Of Counsel To

GREATER UPSTATE LAW PROJECT

By: STEVEN BROWN - Director

101 Powers Building

Rochester, New York 14614

(716) 454-6500

and

NATIONAL CENTER ON WOMEN &

FAMILY LAW

By: LAURIE WOODS - Director

799 Broadway, Room 402

New York, New York 10003

(212) 674-8200

ihe

JAMES I. MEYERSON

Counsel of Record

351 Broadway, 3rd Floor

New York, New York 10013

(212) 226-3310

Of Counsel To:

GREATER UPSTATE LAW PROJECT

By STEVEN BROWN - Director

101 Powers Building

Rochester, New York 14614

(716) 454-6500

ATTORNEYS FOR PETITIONERS

Respectfully submitted,

[oviece Crem hh lp

BRUCE CAMPBELL - “egal Dir-

ector

American Civil Liberties

Union of Ohio Foundation

360 South Third Street

Suite #150

Columbus, Ohio 43215

(614) 228-8952

ATTORNEY FOR PETITIONER

PLAINTIFF-INTERVENOR LEWIS

On the Petition

MARGARET KLAW, ESQ.

Law Offices of Phyllis

Gelman, Esq.

Suite l11-A

211 West 106th Street

New York, New York 10025

(212) 749-5736

ot4.

INDEX TO APPENDIX

ITEM PAGE

1. Opinion and Order of the

District Court Dated

eS ee ee eee A2-A56

2. Per Curiam Opinion of

the Panel of the United

States Court of Appeals for

the Second Circuit....... A57-A60

3. Order Amending Opinon

Dated March 5, 1986...... A61-A63

aA) =

No. CIV 76-22C

UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF NEW YORK

CARLENE MACK, Individually and on behalf of

all persons similarly situated; PATRICIA

RAMSURE; QUEEN ESTHER TAYLOR; THELMA BARNES;

MAXINE McNEILL; TRINA LEWIS,

Plaintiffs,

foe

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.

APPEARANCES :

NATIONAL CENTER ON WOMEN & FAMILY LAW

(PHYLLIS GELMAN, ESQ., of Counsel),

New York, New York,

GREATER UPSTATE LAW PROJECT (JAMES I. MEYER-

SON, ESQ., of Counsel), New York, New York,

-and-

AMERICAN CIVIL LIBERTIES UNION OF OHIO FOUN-

DATION (BRUCE A. CAMPBELL, ESQ., of Coun-

sel), Columbus, Ohio, for Plaintiffs.

-A2-

UNITED STATES ARMY, Office of the Judge

Advocate General, Litigation Division (LT.

COLONEL JOYCE PETERS, ESQ., of Counsel),

Washington, D.C.,

UNITED STATES AIR FORCE, Office of the Judge

Advocate General, General Litigation (LT.

COLONEL GUY STERNAL, ESQ., of Counsel),

Washington, D.C.,

-and-

SALVATORE R. MARTOCHE, ESQ., United States

Attorney (KATHLEEN MEHLTRETTER, ESQ., Assis-

tant United States Attorney, of Counsel),

Buffalo, New York, for Defendants.

-A3~

Plaintiffs challenge the policy of

the Army, Army Reserve, Air Force, and Air

Force Reserve which prohibits the enlist-

ment, with rare exceptions, of single par-

ents with children under 18 years old. They

contend that it violates their rights under

the fifth amendment. This case was’ certi-

fied 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 sum-

mary judgment in June of 1976. This court

denied that motion on February 10, 1978,

with leave to renew after additional discov-

ery had taken place. Defendants renewed

their motion in June of 1983. Plaintiffs

—-A4-

week atey deteeqwtill

have filed a cross motion for summary judg-

ment.

Plaintiffs attack the constitution-

ality of the regulations expressing the

single parent exclusion policy (see Appen-

dix). 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 sec-

ond count, plaintiffs allege that defen-

dants' 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. Plain-

tiffs claim that these policies discriminate

against women as their third count. (See

Amended and Supplemental Complaint, March

=A Sm

a2, I9TE}

Both plaintiffs and defendants have

filed extensive exhibits with the court in

support of their motions for summary judg-

ment and in oppositionto 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 regula-

tions 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 anc,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 judg-

ment, 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 sub-

stantive 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

-AT7-

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 deci-

sions. 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 mili-

tary 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, and Lindenau v. Alexander, 663

F.2d 68 (10th Cir. 1981).

The Third Circuit, however, has

rejected the Mindes test and found the’ same

-AS-

ke ll tte

Mitte den ns

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_ consti-

tuticnal challenge appears weak

or frivolous, jurisprudentially

that claim should be rejected on

the merits, rather than deemed

to be non-justiciable by a fed-

eral court. We prefer an analy-

sis which does not mingle con-

cepts of justiciability with

those affecting the merits of

the claim 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 constitu-

tional equal protection claims and due pro-

cess claims, anad under Crawford and the

reasoning of Dillard these claims are justi-

—-A9Q-

ciable and reviewable.

The Supreme Court's decision in

Rostker v. Goldberg, 453 U.S. 57 (1981),

does not remove this case from the realm of

reviewability. That case emphasized the

deference due Congressional decisions invol-

ving the military and national defense. The

court pointed to Congress's broad constitu-

tional power to raise and support armies,

citing Art. - §8 of the United States

Constitution. It stated that courts have an

ultimate responsibility to decide constitu-

tional 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 chal-

lenged as violative of the Bill of Rights is

clear. The standard of review, however, is

far from clear. The military urges that, at

-A10-

Dt led em oe septal ee robe

i OWS hit ERD

en tet bd

et

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. Ina

recent case from the Eastern District of New

York involving a naval reserve policy prohi-

biting the commissioning of pregnant cadets,

the court interpreted Rostker as requiring

mere rationality to withstand a claim of

gender discrimination under the fifth amend-

ment. 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 sub-

stantive guarantee of due pro-

cess or certainty in the law

will be advanced by any further

"refinement" in the applicable

tests as suggested by the Gov-

ernment. Announced degrees of

"deference" to legislative judg-

ments, just as levels of "scru-

tiny" which this Court announces

that it applies to particuiar

classifications made by a legis-

lative 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, act-

ing under an explicit constitu-

tional grant of authority, has

by that action transgressed an

explicit guarantee of individual

rights which limits the author-

ity so conferred. Simply label-

ing the legislative decision

"military" on the one hand or

"gender-based" on the other does

net 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 Con-

gress's continuation of the Army's military

chaplain program, claiming that government

-A12-

n

financing of the program violated the estab-

lishment clause of the first amendment.

Citing Rostker, the court said:

The line where military con-

trol requires that enjoyment of

civilian rights be regulated or

restricted may sometimes be dif-

ficult 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 neces-

sary to furtherance of our

national defense it should be

treated as presumptively valid

and any doubt as to its consti-

tutionality should be resolved

as a matter of judicial comity

in favor of deference to the

military's exercise of its dis-

cretion.

Katcoff at 234.

This court is well aware that the

policies under attack here were not promul-

gated 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 (1961). Here, the

military defendants set enlistment require-

ments through the authority of Congress,

which gave the Secretaries of the Army and

Air Force the power to promulgate enlistment

standards. 10 G.8.¢. §§505, 510(b),

3012(g), 8012(f). Goldman v. Secretary of

Defense, 734 F.2d 1531, 1538 (D.C. Cir.

1984).

In light of the above discussion of

the standard of review, this case is amen-

able 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

~A14-

judgment, because a trial will add little,

if anything, to the record.

Plaintiffs claim the exclusionary

policy violates their fundamental constitu-

tional right to freedom of choice in family

matters and creates an irrebutable presump-

tion 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' constitu-

tional right to have, or not to have, a fam-

ily. They simply prohibit plaintiffs, as

single parents, from enlisting in the Army

or Air Force. There is no constitutional

right t> join the military. Lindenau_ vv.

Alexander, 663 F.2d at 72-73, and Crawford

v. Cushman, 531 F.2d at 1125.

As their first and third counts,

-A15-

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 amend-

ment.

Under the Second Circuit interpreta-

tion in Katcoff, the exclusion policies

shall be treated as presumptively valid and

constitutional if they are reasonably rele-

vant and necessary to further national

defense.

Defendants maintain that these poli-

cies 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 mili-

-~AiG=

ee en re ane

PO al A CAN IN Pain Cas eed i

tary, or single parents.

For instance, Major General H. Nor-

man Schwarzkopf, Director for Military Per-

sonnel 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 con-

cern 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 has not been done, since

it is "not a question of numbers," but of

the "“war-fighting ca ability of the Army."

(Item 146, p. 39)

General Schwarzkopf served as the

-A17-

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 man-

agement for 12,000 people inaU.S. Army

community. He estimated that approximately

100 single parents lived in the community

and said that some were deficient in perfor-

mance. While he had no exact numbers, he

said that the percentage of single parents

who failed to report for alerts was "dramat-

icaily 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

-A18-

Force, served as Vice Commander, then as

Commander, of the Air Force Manpower and

Personnel Center at Randolph Air Force Base

from March of 1979 until July of 1982. In

that position, he encountered a "significant

amount of concern" on the part of local com-

manders, 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 train-

ing. (See Deposition of Air Force Lt.

General B. L. Davis, Item 49, pp.i11 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 par-

-A19-

ents. For example, a report by the Women in

the Army Study Group was prepared in Decem-

ber 1976 (Defendants' Exh. kK). 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 probiems with

single parents when there were only afew

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 lieave (Exh. K, Chap.

7, pp.8-9).

From October 1980 through April

-A20-

SFL OV ink RL Om

1981, the Air Force studied the readiness

and availability of single parents (Report

of the Availability of Single Member Spon-

sors 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 35-59, 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

-A21-

experienced single parents or military

couples.

The report concluded that the cur-

rent stringent waiver policies for enlist-

ment 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 or Air Force personnel with civil-

ian spouses (see Study by Air Force Manpower

and Personnel Center, January 1982, Defen-

dants' Exh. H, p. 24).

Plaintiffs maintain that defendants'

~A22-

policies of retaining enlisted personnel who

become single parents. are fundamentally

inconsistent with their position. They

argue that if defendants were truly con-

cerned about single parents disrupting mobi-

lization and readiness, no amount of invest-

ment 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 perfor-

mance 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 Secre-

tary of the Army dated September 13, 1982,

recommended that the Army forego discharging

-A23-

all those who become _ 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 recom-

mending 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 dis-

charged because they, unlike new enlistees,

represent a valuable resource to the mili-

tary due to their training and experience

(Item 146, pp.39-41).

Certainly, defendants' refusal to

automatically discharge soldiers and Air

-A24-

Force personnel who become single parents

does not indicate that barring the enlist-

ment of single parents on the basis of a

need to sustain maximum readiness and mobil-

ity 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 part by a discriminatory

purpose.

A perusal of defendants' exhibits

shows that single parenthood is frequently

associated with women's issues. For

example, defendants' Exhibit H, a report by

-A25-

the Air Force Manpower and Personnel Center,

utilized written surveys. The first portion

of these surveys asked commanders to

evaluate the performance of female enlistees

and of male enlistees. Another segment of

the survey asked questions about the perfor-

mances of single parents and military

couples with children. A latter segment

inquired about pregnancy (see Exh. H, Appen-

Gix B).

Single parenthood was also addressed

by the Army as a women's issue. Defendants'

Exhibit I, an opinion survey on the role of

women in the Army, links pregnancy and sole

parenthood. Exhibit K, although explicitly

referring to the sole parent issue as apply-

ing to both men and women (Chap. 7, p.8) was

prepared by the Woman in the Army Study

Group, which viewed it in part as a issue

-A26-

related to pregnancy (p.1-A-6).

A 1981 Department of Defense Report,

Background Review: Women in the Military,

stated, "Sole parents, whose numbers are

increasing in the military, are frequently

thought to be a female issue." (Defendants'

Exh. 22 at 7.) Plaintiffs' expert, Kathleen

Carpenter, who was Deputy Assistant Secre-

tary of Defense of Equal Opportunity in the

Office of Secretary of Defense during the

Carter administration, affirmed this. She

testified at a deposition that the single

parents issue was considered to be a woman's

issue (Plaintiffs' Exh. 7, p. 23). Plain-

tiffs' expert, Kurt Lang, a professor of

Sociology at State University of New York at

Stoney Brook, notes that single parenthood

continues to be associated with illegitimacy

and a dissolute lifestyle (Plaintiffs' Exh.

-A27-

32; @. B}.«

While the plaintiffs have indeed

demonstrated a frequent linkage of single

parenthood with pregnancy and women's’ roles

in the military, this alone does not make

the regulations unconstitutional. Plain-

tiffs have not shown that the regulations

exist in part "because of" and not just "in

spite of" their adverse effects on women.

Personnel Administrator of Massachusetts v.

Feeney, 442 U.S. 256, 279 (1979). (Defen-

dants have agreed, for the purposes of sum-

mary judgment, to assume the challenged reg-

ulations, while facially neutral, have a

disparate impact on women. )

As defendants point out, the mili-

tary has placed restrictions on the peace-

time enlistment of people with dependents

since 1841, 107 years before women were

-A28-

admitted into the armed forces. These regu-

lations changed in content and restrictive-

ness over the years but usually were in

force, in one form or another, throughout

this period (see Item 158, Appendix A, and

Defendants' Exhibit A). The military's con-

cern about enlisting those with dependents

has long been evident and, historically at

least, was unrelated to gender.

Furthermore, the military places

quotas on the number of women allowed to

enlist. Such quotas could be used to

directly reduce the number of women enlist-

ing without resort to a single parent sub-

terfuge. Of course, this in itself does not

demonstrate that defendants were not employ-

ing a facially neutral statute for a discri-

minatory purpose, but it lends support to

defendants' position.

-A29-

Even if plaintiffs could make a

showing of discriminatory purpose, more

would be required.

Plaintiffs claim defendants have not

shown that the regulations are substantially

related to important governmental objec-

tives, the test in gender equal protection

cases (Item 169, Plaintiff's Brief at p.96,

citing Craig v. Boren, 429 U.S. 190, 197

(1976)). However, as stated above, in light

of Rostker and the Second Circuit's inter-

pretation in Katcoff, the question in the

military context is simply whether the chal-

lenged regulations are reasonably relevant

and necessary to the national defense.

Plaintiffs offer depositions and

affidavits indicating that defendants failed

to engage in any detailed statistical analy-

sis to determine the actual quality of work

-A30-

= Re mee

by single parents in comparison to other

personnel. Plaintiffs claim the potential

effect of single parents on readiness and

the ability to deploy quickly in the event

of an emergency has never accurately been

gauged. The policies challenged here, they

say, are not founded on social science

studies but the intuition of military lead-

ers (Item 169, p. 17).

Plaintiffs rely primarily on the

critique by their expert, Professor Lang, to

highlight the deficiencies in military

studies of the single parent issue and to

show the absence of evidentiary validation

for these policies.

Professor Lang concluded that mili-

tary studies do provide evidence that some

single parent service members have diffi-

culty meeting their peacetime duties and

“A3i~

that some of these problems are certainly

related to inadequate child care. Yet, he

also believed that the studies show that the

large majority of single parents are per-

forming at least satisfactorily (Plaintiffs'

Exum. 12, p.1).

One of Professor Lang's main conten-

tions is that studies based on the opinions

of military commanders with responsibility

for national security tend to exaggerate the

magnitude of the problem. (Plaintiffs' Exh.

12, p.9). He notes that many command cen-

ters surveyed by the Army in 1976 (Defen-

dants' Exh. T) reported only minor problems

with single parents, which could be dealt

with on an individual basis. (Plaintiffs'

Exh. R, p. 17-19). In fact, Professor Lang

believes that when the resuits of the = sur-

veys are tabulated, they show that single

-A32-

parenthood "does not result in an excessive

loss of time or create major problems that

cannot be handled in the framework of regu-

lations." (Id. at 19.)

However, single parents need not

cause an excessive loss of time or create

major problems to make the regulations

excluding them reasonably relevant and nec-

essary to the national defense.

Professor Lang also pointed out that

interview or survey questions are _ broad-

based, biased in that they link single par-

enthood to women and sometimes phrase _ the

issue as a "problem," and rely on "self-

reports," by single parents, which he claims

are of doubtful validity (Exh. 12).

Professor Lang's concerns are echoed

by Robert Pirie, Jr., Director of the Naval

Strategy Program at the Center for Naval

-A33-

Analyses. From 1979 to 1981, he was’ the

Assistant Secretary of Defense for Manpower

Reserve Affairs and Logistics. He noted

that there are analyticai studies available

to obtain objective information about the

magnitude of the single parent problem.

(Plaintiffs point out that the military cus-

tomarily relies on detailed statistical ana-

lysis when examining issues relating to

enlistment. ) Mr. Pirie indicated that he

would prefer to "utilize both statistical

analyses and reports of commanders, as have

been relied on in the past, to formulate a

Single parent policy. In his experience,

analytical studies frequently contradict the

intuition of military leadership. Mr. Pirie

did not know whether this would be the case

with the single parent policies (Plaintiffs'

Exh. 5, pp. 38-39).

-A34-

Perhaps the strongest support for

plaintiffs on this issue comes from defen-

dants. In 1982, the GAO prepared a report

to the Secretary of the Army entitled "Army

Needs Better Data to Develop Policies for

Sole and Inservice Parents" (Defendants'

Exh. N).

The report was based on question-

naires sent to first-line supervisors at

Fort Bragg and Army installations in Europe.

Professor Lang pointed out that studies

based on evaluations by direct supervisors

were more valid than those based on inter-

views with commanders (Plaintiffs' Exh. a2,

D.2i). Based on these responses, the GAO

concluded that sole and in-service parents

attended and performed at least satisfact-

orily and would most likely be available in

the event of war (Defendants' Exh. N, p.4).

-A35-

The study recommended that the Army forego

discharging all who become single parents or

a military couple with children until objec-

tive and scientific data is obtained. It

also recommended that data be developed to

"reconsider the reasonableness of restrict-

ing enlistment of sole and in-service par-

ents." (Defendants' Exh. N, p. 11.)

The court agrees that better, more

reliable techniques for assessing the day-

to-day performance and the likely availabil-

ity of single parents in time of national

crisis should be implemented, particularly

in light of the GAO report to the Secretary

of the Army in 1982 (Defendants' Exh. N).

However, the Rostker decision and the inter-

pretations provided by the D.C. Circuit in

Goldman v. Secretary, 734 F.2d 1531, and by

the Second Circuit in Katcoff place a mini-

-A36-

mal burden on the military in defending its

policies against constitutional attack. The

policies need only be "reasonably relevant

and necessary to furtherance of our national

defense," and "any doubt as to its constitu-

tionality should be resolved . . . in favor

of deference to the military's exercise of

its discretion." Katcoff at 234.

Defendants have provided the court

with evidence, as discussed above, that

there are problems with some single parents

in flexibility with duty schedules and

reporting for duty on short notice. These

problems create concern on the part of many

military leaders that single parents will

not be available in the event of an emer-

gency. Also, Air Force commanders discussed

the burdens of single parents during basic

and technical training.

-A3i-

The court has been presented with a

challenge to the constitutionality of single

parent enlistment restrictions only, not the

regulations providing for the ouster or

reassignment of trained personnel who become

single or in-service parents after enlist-

ment. Based on defendants' evidence, I can-

not conclude that a policy barring single

parents from military service at the enlist-

ment level is not reasonably relevant to and

necessary for the furtherance of the

national defense.

laintiffs point out that the mili-

tary provides child care facilities to per-

sonnel who are already enlisted (Exhs. 43

and 44). They note that these services

could be expanded. Strict enforcement, they

say, of regulations requiring discharge for

military parents who are performing poorly

-A38-

and regulations requiring the maintenance of

careful dependent care planning would be an

alternative to a blanket prohibition against

single parent enlistment. See Katcoff at

235.

Plaintiffs also suggest that prohi-

biting single parents from bringing their

children to basic or technical training

would be a reasonable alternative. Plain-

tiffs even urge that current regulations

limiting the locations to which a_e service

member may bring children be extended to

cover single parents, with perhaps more

rigid limitations on single than married

parents (Plaintiffs' Brief, Item 169,

pp.128-29).

Again, however, plaintiffs skim over

the difference between those who have

already undergone training and have experi-

-A39-

ence and those who are attempting to enlist.

As discussed earlier, simply because the

military provides child care services to

trained personnel does not mean it is

required to provide such services for those

who are seeking to enlist. A common theme

from the evidence submitted by defendants is

a concern with the growing number of single

parents and military couples with children

and a belief that the greater the number,

the greater the potential that readiness

would be undercut. Under these circum-

stances, admitting those who ure already

Single parents would increase the burden.

Plaintiffs have not shown that set-

ting a lower age limit for depencents,

rather than age 18, would significantly

alleviate these problems. Nor does’ setting

the age limit at the level at which commer-

-A40-

cial airlines permit minors to fly unaccom-

panied present a practical solution.

The most dramatic single illustra-

tion offered by plaintiffs supporting indi-

vidual waivers involves named plaintiff

Thelma Barnes. Ms. Barnes and her. sister

enlisted in the Army Reserves on the same

day. Each had a child, but only the’ sister

was married. Although Ms. Barnes trans-

ferred guardianship of her child to her

mother, her enlistment was voided under the

regulations then in force. Her sister,

although she was married, relied on their

mother to care for her child, as Ms. Barnes

would have. The sister remained in the

Reserves was promoted to sergeant (see Exh.

17). This lends support to plaintiffs'

argument that, at the least, single parent

applicants should be reviewed on an indi-

-A41-

vidual basis.

It should be noted that both the

Army and the Air Force had experimented with

more liberal restrictions on the enlistment

of single parents, permitting waivers for

single parents if the application was "meri-

tous" or if they could provide a detailed

dependent care plan. Both the Army and Air

Force had liberalized policies for a period

in the early 1970s. The Air Force made

another attempt from 1978-81. Both branches

returned to the stringent regulations, such

as those which barred the enlistment of the

named plaintiffs, because the liberalized

enlistment requirements were perceived to

impair the readiness of the military and

create problems in training. (see pp.14-24,

Item 158).

Finally, plaintiffs urge the court

-A42-

to consider differences between the Army and

Air Force and between the active branches

and the reserves. Although the Army and Air

Force do have differences in their func-

tions and needs, each has provided evidence,

in the form of depositions and studies, that

single parents pose some threat to readiness

and mobility.

Plaintiffs' point as to the reserves

has more appeal at first glance. Reservists

live in civilian communities and are called

upon only occasionally to report for duty.

The purpose of the reserves is to be active

in the event of war. Major General Paul S.

Williams, Army Director of the Office of the

Deputy Chief of Staff, cautioned that,

although less time is required of the

reserves during peacetime, there may be a

need for sudden mobilization (Item Si,

-A43-

pp.34-36). Robert Pirie, Jr., described the

"total force concept," in which the active

Army (Air Force) and its reserves are viewed

as one force. He stated that, in the event

of an emergency, the reserves would be

required to deploy in accordance with sched-

ules which would be just as stringent as

those of the active Army or Air Force

(Plaintiffs' Exh. 5, pp.57-59). In light of

this, regulations proscribing single parent

enlistment in the active forces would be

equally valid for the reserves.

Plaintiffs' motion for summary judg-

ment is denied. Defendants' motion is

granted, and the complaint is dismissed.

So ordered.

/s/_ John T. Curtin

United States District Judge

Dated: June 5, 1985

-A44-

APPENDIX

A.

ARMY AND RESERVES

Army Regulation AR 601-210

Effective April 1, 1975, and continued

July 28, 1976

Same as Army Reserve Regulation AR 140-111,

Effective May 1, 1975

RULE F--DEPENDENTS

IF APPLICANT IS

Without Prior Service

(2)

(3)

(4)

An applicant without a

spouse and with one or more

dependents under 18 years

of age is disqualified,

except as provided in (3)

and (4) below. No waiver

is authorized.

A divorced applicant may be

processed for enlistment

when the child or children

have been placed in the

custody of the other parent

by court order and the

applicant is not required

to provide child support.

No waiver is required.

A divorced applicant may be

processed for dependency

waiver when the child or

-A45-

children have been placed

in the custody of the other

parent by court order and

the applicant is required

to provide child support.

Army Regulation AR 601-210

Effective November 1, 1980, as amended

December 1, 1980

F--DEPENDENTS

With or without prior service

i An applicant "without a

spouse" --

a. who has "dependent(s)”

under 18 years of age

who has’ been placed in

the custody of the other

parent or another adult

by court order, or as

provided by state law

and the applicant is

(1) not required to pro-

vide child support or

required by court

order to provide

child support for 2

or less "depen-

dent(s).""

(2) required by court

order to provide

child support for

three or more "depen-

dent(s)."

-A46-

who

under

who

in

other parent or

has "dependent (s)"

18 years of age

has not been placed

the custody of the

another

adult by court order or

as provided by state

law.

Eligibility Status

a. (1) Eligible

(2) Not eligible;

waiver requests

considered.

b. Not eligible; waiver

requests not consid-

ered.

Army Reserve Regulation AF i40-111

Effective February 1,

RULE F--DEPENDENTS

IF APPLICANT IS

1979

Without Prior Service

(2) An

applicant

without a

spouse and with one or more

dependents

age

of

except

and (4)

is

authorized.

cant without

under 18 years

is disqualified,

as provided in (3)

below. No waiver

An appli-

a spouse is

defined as an applicant who

is unmarried,

-A47-

is divorced,

(3)

(4)

is legally separated,

spouse is deceased, spouse

has deserted applicant,

spouse is incarcerated,

spouse is not residing per-

manently with applicant, or

applicant has sole custody

of the dependents.

An applicant without a

spouse may be processed for

enlistment when the child

or children have been

placed in thé custody of

the other parent of the

child or children by court

order and the applicant is

not required to provide

child support. No waiver

is required.

An applicant without a

spouse, required to pay

support for no more than

two dependents under 18

years of age and where said

dependents have been placed

in the custody of the other

parent of the child or

children by court order,

may be processed for

enlistment without a

waiver. If there are more

than two dependents, a

waiver is required prior to

enlistment.

-A48-

Army and Army Reserves combined Regulation

AR 601-210

Effective October 1, 1982, through date

of decision

2. An applicant "without a spouse"--

a. Who has "dependent (s)"

under 18 years of age who

has (have) been placed in

the custody of the other

parent or another adult by

court order or as provided

by State law and the appli-

cant is--

(1) Not required to provide

child support or

required by court order

tc provide child support

for two or less "depen-

dents."

(2) Required by court order

to provide support for

three or more "depen-

dents."

(3) Servicemembers who have

surrendered custody of

dependents under this

rule will certify at the

time of enlistment that

it is their intent that

the custody agreement

will survive the term

for which enlisting;

servicemembers who

-A49-

enlist subject to this

provision and who regain

custody of their chil-

dren during the term of

enlistment will be pro-

cessed for involuntary

separation for fraudu-

lent enlistment unless

they can show that the

regaining of such cus-

tody is not contrary to

the intent stated upon

enlistment.

b. Who has "dependent (s)

under 18 years of age

who has (have) not

been placed in the

custody of the other

parent or another

adult by court order

or as provided by

State law.

Eligibility

(1) Eligible.

(2) Not eligible; waiver

requests considered.

(3) Eligible; DA Form

3286-31R (Fig. 2-1) will

be executed at the time

of enlistment. DA Form

3286-31R will be locally

reproduced on 8% x

11-inch paper.

-A50-

b. Not eligible; waiver

requests not considered.

-aSi~

B.

AIR FORCE AND AIR FORCE RESERVES

AFR-33-3

Effective March 31, 1975

Applicants are ineligible to enlist if

one of the following conditions exists

* * *

15. Applicants with one or more

dependents under age 18 but

without a spouse in house-

hold (note 4.) (Not appli-

cable for enlistment in the

ROTC cr OTS programs. )

4. See paragraph 1-1j for definition

of dependent. Dependency waivers

may be requested:

a. When dependents have

been placed by court

order into the custody

of some other person

(irrespective of appli-

cant's responsibility to

provide child support

payments), or

b. For former Air Force

members separated for

pregnancy who apply for

reentry within 1 year of

date of separation.

-AS2-

AFR 33-3

Effective October 14, 1977

Applicants are ineligible to enlist

when one

exist

12.

NOTES:

of the following conditions

Applicant with one or more

dependents under age 18 but

without a spouse in house-

hold or with a common-law

spouse (see notes 2 and 5).

(Not applicable for enlist-

ment in the Officer Train-

ing School or Prior Service

programs. )

2. See paragraph 1-ih for definition of

dependent. Dependency waivers may be

requested:

When dependents have been

placed by court order into

the custody of some other

person (irrespective of

applicant's responsibility

to provide child support

payments) or

When dependents have _ been

placed for an indefinite

period of time in the phys-

ical care, custody, and

-A53-

control of a person who has

been authorized by the par-

ent's notorized [sic] Cer-

tificate of Child Care Ar-

rangements to act on behalf

of the dependent(s). The

custody period involved will

vary based on job assignment

and will cover basic mili-

tary training and technical

training, if required. Ad-

ditionally, it is recommen-

ded that the dependent(s)

not join the parent at ini-

tial duty station until such

a time as the parent has ad-

justed to the job and mili-

tary base environment and

made full arrangements for

child care.

. No waiver is required if ap-

plicant can prove permanent

transfer of legal control to

some other person through

court order or adoption pro-

ceedings, provided actual

transfer of legal control

over the child(ren) has oc-

curred. Child(ren) must

still be listed on enlist-

ment documents and present

status explained. Documents

(court order or adoption pa-

pers) must be reviewed by

the recruiter and AFEES I

NCO. An AF Form 3010,

-A54-

>

Statement of Understanding

(Dependency) must still be

signed by the applicant.

An applicant with minor children

and a common-law spouse should be consid-

ered to be enlistment eligible if both par-

ties are bona fide domiciled in a State re-

cognizing common-law marriage, at the time

they enter into such relationship. Waivers

for enlistment under this situation are

processed to the Recruiting Service Squad-

ron Commander for approval.

ATCR 33-2

Effective August 31, 1982

(a)

(b)

In the case of an applicant having

any minor dependents and NO SPOUSE

IN THE HOUSEHOLD, waiver is auth-

orized if care, custody, and con-

trol of minor dependents have been

assumed by another individual via

court order. In addition, the ap-

plicant must complete a handwrit-

ten statement using ATC Form 1357,

Dependent Care Statement regarding

plans for post-enlistment care.

Divorced or separated applicants

must provide a plan should they be

required to resume custody.

Waivers may be considered only

where custody of minor dependents

has been transferred by court or-

der to another person.

-A55-

Bonafide court orders are

the only acceptable docu-

ments that can be used to

prove transfer of custody.

Applicants must provide an

original order (or copy)

authenticated by a court

official.

. Evidence of custody trans-

fer must show that it is

unconditional and contain

no conditions under which

the applicant would resume

custody during the initial

term of service.

. When an applicant claims or

acknowledges to be the par-

ent of an illegitimate

child and no court order was

or will be issued, a written

agreement to pay child sup-

port and (or) an affidavit

from the custodial parent

establishing unconditional

custody of the child with

parties other than the ap-

plicant may be sufficient

proof. Use of such docu-

ments apply only where

court orders were not is-

sued.

-A56-

UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

2

No. 677—August Term, 1985

(Argued December 16, 1985 Decided January 29, 1986)

Docket No. 85-6184

+

CARLENE MACK, Individually and on behalf of all other

persons similarly situated; SHIRLEY STUKES; PATRI-

CIA RAMSURE; QUEEN ESTHER TAYLOR; THELMA

BARNES; MAXINE MCNEILL; and TRINA LEWIS, In-

tervenor, a ea

Plaintiffs-Appellants,

nl ,

DONALD RUMSFELD, Individually and in his official

capacity as Secretary of Defense; MARTIN R. HOFF

MAN, 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.

Before:

TIMBERS, MESKILL and PRATT,

Circuit Judges.

-A5/7-

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.

ot

JAMES I. MEYERSON, New York City (of

counsel to Greater Upsiate Law Project,

Rochester, New York), Phyllis Gelman,

Margaret Klaw, New York City (of coun-

sel to Greater Upstate Law Project,

Rochester, New York and National Cen-

ter on Women & Family Law, New York

City), for Plaintiffs-Appellants.

Bruce Campbell, American Civil Liber-

ties Union of Ohio Foundation, Colum-

bus, Ohio, for Plaintiff-Appellant-Inter-

venor Lewis.

LINDA SILBERMAN, Civil Division, Depart-

ment of Justice, Washington, D.C. (Rich-

ard K. Willard, Assistant Attorney

General, Department of Justice, Wash-

ington, D.C., Salvatore R. Martoche,

United States Attorney for the Western

District of New York, Buffalo, New

York, Guy J. Sternal, Lt. Col., USAF,

Craig Niederpruem, Major, JAGC, Of-

fice of The Judge Advocate General,

Washington, D.C., John Cordes, Civil

Div:sion, Department of Justice, Wash-

ington, D.C., of counsel), for Defen-

dants-Appellees.

-A58-

Nancy Polikoff, Women’s Legal Defense

Fund, Washington, D.C., Carolyn A.

Kubitschek, Hofstra University School of

Law, Hempstead, New York, for Amici

Curiae, American Veterans Committee;

Comparable Worth Project; Committee

on Children and the Law, Ass’n of the

Bar of the City of New York; The Em-

ployment Law Center; The Nat’! Ass’n

for the Advancement of Colored Peopie;

Nat’! Coalition Against Domestic

Violence; Nat’l Conference of Black

Lawyers; Nat’! Political Congress of

Black Women; Women’s Equity Action

League; and Women’s Legal Defense

Fund.

Per Curiam:

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

-A59-

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 dis-

missed 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 sub-

stantially limited by the subsequent Supreme Court opin-

ion in Rostker v. Goldberg, 453 U.S. 57 (1981), and our

interpretation of Rostker in Katcoff v. Marsh, 755 F.2d

223, 234 (2d Cir. 1985).

-A60-

UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

No. 677 August Term, 1985

Decided January 29, 1986

Docket No. 85-6184

CARLENE MACK, Individually and on behalf of

all other persons similarly situated; SHIR-

LEY STUKES; PATRICIA RAMSURE; QUEEN ESTHER

TAYLOR; THELMA BARNES; MAXINE McNEILL; and

TRINIA LEWIS, Intervenor,

Plaintiffs-Appellants,

Vv.

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.

Before: TIMBERS, MESKILL and PRATT,

Circuit Judges.

-A6l-

ORDER AMENDING OPINION

It is hereby ORDERED:

Page 3, lines 12-16 (slip op. page 1252,

lines 17-21):

Delete:

We note that Crawford has been

substantially limited by the

subsequent Supreme Court opinion

in Rostker v. Goldberg, 453 U.S.

57 (1981), and our interpreta-

tion of Rostker in Katcoff v.

Marsh, 755

F.2d 223, 234 (2d Cir. 1988).

And substitute therefor:

We note that the portion of

Crawford that stated that judi-

cial deference to military deci-

sions applies only to the ques-

tion of their justiciability and

that military decisions are

accorded no presumption of vali-

dity in an inquiry on the mer-

its, see 531 F.2d at 1121, was

specifically rejected by us as

to matters "reasonably relevant

and necessary to furtherance of

our national defense" in Katcoff

v. Marsh, 755 F.2d 223, 234 (2d

Cir. 1985), in light of the

-A62-

intervening Supreme Court opin-

ion in Rostker v. Goldberg, 453

U.S. 57 (1981).

/s/ William H. Timbers, U.S.C.J.

/s/ Thomas J. Meskill, U.S.C.J.

/{[s/ George C. Pratt, U.S.C.J.

-A63-