Frontiero v. Laird

Decision Date05 April 1972
Docket NumberCiv. A. No. 3232-N.
PartiesSharron A. FRONTIERO and Joseph Frontiero, Plaintiffs, v. Melvin R. LAIRD, as Secretary of Defense, his successors and assigns, et al., Defendants.
CourtU.S. District Court — Middle District of Alabama

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Morris S. Dees, Jr., and Joseph J. Levin, Jr., Montgomery, Ala., for plaintiffs.

Ira DeMent, U. S. Atty. for the M. D., Montgomery, Ala. and Asst. U. S. Attys., F. E. Leonard, Jr., and Kenneth E. Vines, and L. Patrick Gray, Asst. Atty. Gen., Civ. Div., Dept. of Justice, Washington, D. C., and Civ. Div. Attys., Harland F. Leathers and Jeffrey Axelrod, for defendants.

Before RIVES, Circuit Judge, and JOHNSON and McFADDEN, District Judges.

OPINION AND JUDGMENT

RIVES, Circuit Judge, and McFADDEN, District Judge:

Plaintiffs attack the constitutionality of 37 U.S.C. §§ 401, 403, and 10 U.S.C. §§ 1072, 1076, insofar as these statutes require different treatment for male as opposed to female members of the uniformed services, and seek to require the defendants to cause plaintiff Lt. Sharron A. Frontiero to receive the same quarters allowance and medical and dental benefits for her spouse as a male member would receive for his spouse.

"Dependent" is defined in 10 U.S.C. § 1072 and 37 U.S.C. § 401. The statutes provide that dependents of any member of the uniformed services be furnished medical and dental care (10 U.S.C. § 1076) and that members with dependents receive an increased allotment for quarters (37 U.S.C. § 403). Under the statutes, members are allowed to designate a particular person as a dependent in the following instances:

(1) A married male member may claim his wife and any unmarried, legitimate, minor children regardless of whether those persons are dependents in fact.
(2) A married female member may claim her husband and any unmarried, legitimate, minor children upon a showing that they are in fact dependent on her for more than one-half of their support, except that, as to medical and dental care a female member may claim such minor children as dependents without regard to whether they are in fact dependent.
(3) Upon a showing of actual dependency any member may claim adult children, parents, and parents-in-law who are incapable of self support because of mental or physical incapacity.

The crucial difference between the treatment of male and of female members is that with respect to quarters' allowance and medical benefits for the spouse of a female member there must be a showing of actual dependency, whereas this showing is not required for male members.

Plaintiffs seek a declaration that this differentiation is unconstitutional and constitutes a discrimination in violation of the Due Process Clause of the Fifth Amendment to the United States Constitution; a permanent injunction against the enforcement of these provisions with respect to them and members of their class; and an award of back pay for dependency allowances previously denied Lt. Frontiero.

This case is before the Court for decision upon an agreed statement of facts consisting of a stipulation filed May 20, 1971, and an amended stipulation filed May 24, 1971.

Plaintiff, First Lieutenant Sharron A. Frontiero, USAF, a physical therapist assigned to Maxwell Air Force Base Hospital, Maxwell Air Force Base, Alabama, is married to plaintiff Joseph Frontiero, a full-time student at Huntingdon College, Montgomery, Alabama. Joseph Frontiero's living expenses, including his share of household expenses total approximately $354.00 per month. He receives $205.00 per month in veterans' benefits. It is clear, therefore, that Joseph Frontiero is not dependent on Lt. Sharron A. Frontiero for more than one-half of his support. Accordingly, Lt. Frontiero's requests for quarters allowance and medical benefits have been denied. Before reaching the merits of plaintiffs' claim, two preliminary matters must be decided.

First, defendants contend that plaintiffs have no standing to maintain this action because Joseph Frontiero has previously claimed Sharron A. Frontiero as a dependent for purposes of certain veterans' benefits. Defendants rely on Fahey v. Mallonee, 332 U.S. 245, 255, 67 S.Ct. 1552, 1557, 91 L.Ed. 2030 (1947), where the United States Supreme Court said:

.... It is an elementary rule of constitutional law that one may not "retain the benefits of the Act while attacking the constitutionality of one of its important conditions." United States v. City and County of San Francisco, 310 U.S. 16, 29 , 60 S.Ct. 749, 756, 84 L.Ed. 1050. As formulated by Mr. Justice Brandeis, concurring in Ashwander v. Tennessee Valley Authority, 297 U.S. 288, 348 , 56 S.Ct. 466, 483, 80 L.Ed. 688, "The Court will not pass upon the constitutionality of a statute at the instance of one who has availed himself of its benefits."

In Fahey, the conflicting claims involved only one Act. Defendants contend, however, that the statutory schemes here in question, and the veterans' benefits provisions under which Mr. Frontiero claimed Lt. Frontiero as a dependent, are sufficiently similar in nature that the announced rule in Fahey ought to apply.

The provisions under which Joseph Frontiero receives his veterans' benefits are found in 38 U.S.C. § 1651 et seq. Section 1651 provides:

The Congress of the United States hereby declares that the education program created by this chapter is for the purpose of (1) enhancing and making more attractive service in the Armed Forces of the United States, (2) extending the benefits of a higher education to qualified and deserving young persons who might not otherwise be able to afford such an education, (3) providing vocational read-justment and restoring lost educational opportunities to those service men and women whose careers have been interrupted or impeded by reason of active duty after January 31, 1955, and (4) aiding such persons in attaining the vocational and educational status which they might normally have aspired to and obtained had they not served their country.

The statutory scheme under which Joseph Frontiero receives veterans' benefits is part of Chapter 34 which is denominated as "Veterans' Educational Assistance" and which is in turn a part of Title 38, entitled "Veterans' Benefits."

Title 37 U.S.C., wherein lie the schemes here challenged by Lt. Frontiero, is styled "Pay and Allowances of Uniformed Services." Title 37 does not contain an elaborate statement of purpose, but it is clear that Chapter 7, of which Section 403 is a part, is intended to confer certain benefits on current members of the uniformed services. And, Title 10 U.S.C. § 1071 provides:

The purpose of sections 1071-1087 of this title is to create and maintain high morale in the uniformed services by providing an improved and uniform program of medical and dental care for members and certain former members of those services, and for their dependents.

The statute under which Joseph Frontiero receives $205.00 per month is primarily designed to provide assistance to veterans, although one of its stated purposes is to enhance service in the armed forces. On the other hand, 37 U.S.C. § 403 and 10 U.S.C. § 1072 concern benefits to be bestowed upon present and certain former members of the uniformed services, and the stated purpose in Section 1071 is the creation and maintenance of high morale among present members. Therefore, we conclude that the provisions of 38 U.S.C. § 1651 et seq., relating to veterans' educational benefits, and 37 U.S.C. § 403 and 10 U. S.C. § 1072, relating primarily to benefits for present members, are sufficiently distinct as to render the Fahey doctrine inapposite.

Second, defendants ask this Court to invoke an estoppel doctrine, relying primarily on Holly Hill Citrus Growers' Ass'n v. Holly Hill Fruit Products, Inc., 75 F.2d 13, 17 (5th Cir. 1935), where the Court said:

There is a kind of evidential estoppel which, though it may not amount to a complete estoppel in pais, is raised when persons who have spoken or acted one way under one set of circumstances, and with one objective in mind, undertake under other circumstances and when their objective has changed, to testimonially give a different color to what they formerly said and did.

Defendants contend that because Joseph Frontiero has claimed Sharron Frontiero as a dependent for the veterans' benefits, plaintiffs are estopped from claiming him as her dependent under the military pay and allowances statutes.

We do not agree. The amount of the educational assistance allowance for veterans is based upon the number of dependents of the recipient. 38 U.S.C. § 1682. The definition of "dependent" in the Veterans' Benefits Act (38 U.S.C. § 1652) includes the wife of an eligible veteran without regard to her dependence in fact. When Joseph Frontiero claimed his wife as a dependent for the veterans' benefits, he was not warranting her dependence in fact. Rather, he was merely certifying that he was married and that, by the terms of the statute, he therefore had a dependent. In this case plaintiffs ask that the presumption of dependency be extended to female members claiming their husbands as dependents for purposes of medical benefits and quarters' allotment. If such relief were granted the effect would be to excise any notion of dependency in fact from the statutory scheme. As such the force of the statute would be to give additional pay to all married members without regard to the actual dependency of their spouses. In that light there would be nothing inconsistent in Joseph Frontiero's claiming Sharron as a dependent while at the same time Sharron claimed Joseph. Thus, we conclude that plaintiffs have not taken such an inconsistent position that they are estopped by the Holly Hill doctrine.

Inasmuch as we reject the argument that plaintiffs lack standing and are estopped to challenge the provisions under scrutiny, the case is ripe to be disposed of on the merits.

Plaintiffs point out that a male...

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7 cases
  • Frontiero v. Richardson 8212 1694
    • United States
    • United States Supreme Court
    • May 14, 1973
    ...30 L.Ed.2d 225. Mr. Justice REHNQUIST dissents for the reasons stated by Judge Rives in his opinion for the District Court, Frontiero v. Laird, 341 F.Supp. 201 (1972). Mr. Justice POWELL, with whom THE CHIEF JUSTICE and Mr. Justice BLACKMUN join, concurring in the I agree that the challenge......
  • Falkner v. State, CR-89-632
    • United States
    • Alabama Court of Criminal Appeals
    • June 28, 1991
    ...Court decided Frontiero. Since that case arose from the federal District Court for the Middle District of Alabama, see Frontiero v. Laird, 341 F.Supp. 201 (M.D.Ala.1972), it is reasonable to assume that an Alabama attorney would have been particularly attentive to the holding of Frontiero, ......
  • Green v. Waterford Board of Education
    • United States
    • United States Courts of Appeals. United States Court of Appeals (2nd Circuit)
    • January 29, 1973
    ...5 E. g., Goesaert v. Cleary, 335 U.S. 464, 69 S.Ct. 198, 93 L.Ed. 163 (1948). The question may be expressly decided in Frontiero v. Laird, 341 F.Supp. 201 (M.D. Ala.1972) (3-judge court), prob. juris. noted, 409 U.S. 840, 93 S.Ct. 64, 34 L.Ed. 2d 78 (1972), argued before the Supreme Court o......
  • Tomarchio v. Greenwich Tp.
    • United States
    • United States State Supreme Court (New Jersey)
    • November 3, 1977
    ...v. Richardson, supra, 411 U.S. at 691, 93 S.Ct. at 1773, 36 L.Ed.2d at 594 (Rehnquist, J., dissenting for reasons stated in 341 F.Supp. 201 (M.D.Ala.1972)). It is impermissible to employ gender-based distinctions premised upon "archaic and overbroad" stereotypes regarding the economic depen......
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